Mr McCafferty has had his appeal against conviction refused after claiming the Judge’s decision to allow the Crown to amend one of the charges had caused him prejudice. Mr McCafferty received a ten year prison sentence after being found guilty of four charges two against his former partner and two against her granddaughter.
All were of a sexual nature. The appellant argued that the crowns changed made it easier for the “mutual corroboration” doctrine to apply. However, The High Court of Judiciary did not agree and stated that the nature of the offence was not changed. Originally charge four stated that a rape occurred between 2000 and 2002 but in her evidence during trial the complainer stated this could have happened up to 2010.
The Advocate depute therefore sought to amend the charge which was allowed. The Lord Justice General said in conclusion: “Whether to allow an amendment to an indictment in terms of section 96(1) of the Criminal Procedure (Scotland) Act 1995 is a matter primarily for the discretion of the court at first instance, provided that the amendment does not change the character of the offence. The complainer had said at first that she thought that the final episode of intercourse had occurred only a few weeks after the appellant’s detention in 2010, but accepted that, in terms of her police statement, it could have been as early as 2001 or 2002. The amendment did not alter the character of the offence. It did not cause the appellant any difficulties in dealing with the complainer’s testimony. He had been able to cross-examine the complainer and thereby challenge her credibility and reliability… The appellant, who would have been the only other potential witness to the incidents, had been free to give evidence to contradict the complainer’s testimony, if that had been his position. This ground of appeal fails. The effect is that the jury have held that, in relation to charge 4, the incidents occurred sometime between 2001 and 2010.” Therefore the conviction remains.
