Thomas Thomson v. Her Majesty's Advocate [2009] HCJAC 11

Criminal Note of Appeal Against Conviction:- On 10 August 1999 at Glasgow High Court the appellant was found guilty of a charge of rape. At trial the appellant's position was that although there had been sexual contact between him and the complainer it had been at her instigation and with her consent. Although he admitted to sexual intercourse in an interview with police, he denied in evidence that sexual intercourse had taken place, and claimed that he was under pressure during the interview. After the complainer completed her evidence in chief, counsel for the appellant sought leave of the court to allow certain questioning under and in terms of section 275(1)(c) of the Criminal Procedure (Scotland) Act 1995. The trial judge allowed questioning in relation to two parts of the application on the basis that the proposed questioning was directly relevant to the issues in the trial, however, he disallowed questioning in respect of the remaining three parts of the application on the basis that it could have no bearing on the credibility and reliability of the complainer in relation to the circumstances which were the subject of the trial and the line of evidence sought to be adduced was unsupported by any witnesses cited to give evidence for the defence in relation to the making of the false allegations referred to. The appellant appealed against his conviction on the basis that the trial judge had erred insofar as he refused the questioning, however, on 26 January 2001 the appeal was refused. In December 2003 the Scottish Criminal Cases Review Commission referred the appellant's case back to the court on the basis that it believed that there may have been a miscarriage of justice and expressed the view that the questioning disallowed at the trial did not strictly fall within the prohibition in section 274 of the 1995 Act, it being proposed only to show that the allegations were false, not that the complainer had in fact engaged in any other sexual behaviour. The only ground advanced at the hearing of the second appeal related to the trial judge's decision to refuse questioning in respect of the same matters as were referred to in the previous appeal and on 20 January 2005 the second appeal was refused. On 12 October 2006 the appellant's case was referred back to the court by the Commission which adhered to the views expressed in its earlier report, concluded that "the consequences of the approach taken by (the solicitor advocate) was that the applicant was denied the opportunity of having his appeal properly argued before the High Court and, as such, the applicant has suffered a miscarriage of justice". Here two grounds of appeal were argued:- (1) that the trial judge erred in refusing trial counsel leave to question the complainer in terms of the section 275 application; and (2) related to fresh evidence which was of such significance that the verdict reached in ignorance of it could be regarded as a miscarriage of justice. Here the court considered whether the trial judge was correct to hold that the proposed questioning was a collateral matter which was irrelevant and did not have any direct bearing on the credibility and reliability of the complainer. In relation to the "fresh evidence" the court considered whether it was admissible and, if it was, whether it would have been material.