Colin Grimason v HMA [2020] HCJAC 53

On the 18^th of June the appellant was convicted of a charge of sexual assault on a 25 year old school teacher which read:

“On 28 May 2017 at an alleyway near to Munches Street and High Street, both Dumfries, you did sexually assault EC in that you did seize hold of her, pull her into said alleyway, pin her against a wall, kiss her on the mouth, insert your tongue into her mouth, push her to the ground, cause her head to strike the ground, hold her down, put your hands around her neck and compress same, cause her to lose consciousness, all to her injury and to the danger of her life, rip her pants, and did sexually penetrate her vagina in that you did penetrate her vagina with your penis and fingers: Contrary to Sections 2 and 3 of the Sexual Offences (Scotland) Act 2009.”

The complainer was a 25 year old school teacher who had just completed her probationary year and had gone to a nightclub on Saturday the 27^th of May 2017 with a group of friends leaving there at around 3am the following morning when she became separated from her friends. The complainer gave evidence that she had been walking and talking with the appellant who was unknown to her and that when they came upon an alleyway the appellant took her wrist and pulled her into it, pushed her up against the wall and started to kiss her. The complainer stated she told the appellant she did not want this and he pushed her to the floor causing her to lose consciousness and when she came round the appellant was on top of her and grabbed her throat when she tried to call for help. The complainer stated that when the appellant heard voices he had let go of her and she made her escape. She thereafter came upon two of her friends and told them of what transpired.

In corroboration the crown led evidence of the complainer’s distress, evidence of the contents of her bag being strewn on the ground in the alleyway, medical evidence including DNA evidence and evidence of strangulation as well as CCTV footage showing the appellant running out of the alleyway.

The appellant gave evidence that he had been in the area to compete in an ice hockey tournament and had gone on a night out with friends. The appellant stated that he and his friend came upon the complainer when she approached them as she had lost her friends and that they attempted to help her find them. The appellant said that the complainer had stated that she needed the toilet. He further stated that she had kissed him and flirted with him leading to his friend leaving them alone. The appellant denied pulling the complainer into the alleyway and stated that it was the complainer’s idea to cut through there to try and find her friends and that when she said she thought she heard her friends he had left her believing her to be back with them ran out the alleyway in an attempt to catch up with his friend. The appellant was unable to provide an explanation for the medical evidence other than the complainer could have fallen and agreed with the proposition made by the advocate depute that her account of her injuries was a “pack of wicked lies”.

The appellant was initially sentenced to 4 years imprisonment which was increased to 8 years following a successful appeal by the crown.

The appellant lodged a note of appeal against conviction contending that he was defectively represented by his counsel, resulting in an unfair trial and a miscarriage of justice. Firstly, that  counsel for the appellant failed to put to the complainer that she was wrong and lying in her recollection that she had been grabbed, pulled down and strangled by the appellant. Secondly, that defence counsel wrongly cross examined the complainer as to whether the appellant could have been engaging in activity which he understood to be consensual and that he stopped when he realised the complainer was frightened or that his behaviour could have been viewed by others to be inappropriate as it did not form part of the appellant’s instructions and was out with the scope of legitimate tactical discretion. Thirdly, that counsel bolstered the credibility of the complainer and restricted his criticisms to merely suggesting she may be unreliable in his jury speech and did not address the competing version of events.

The court in hearing the appeal addressed each criticism in turn. For the first criticism, the court concluded that the appellant gave no instructions as to the nature of his defence in relation to this other than that he did not know why the complainer had given the evidence that she did. He further did not know how she came upon her injuries other than that she could have perhaps fallen. The court agreed with the view of the trial counsel that there was no proper basis for accusing the complainer of lying.

Turning to the second criticism, the court stated “it would have been obvious that the cross examiner was testing and seeking to undermine the reliability of the evidence given by the complainer” and that the appellant’s defence was a bare denial. Therefore counsel had discretion as to how to present this. The cross examination as to whether the appellant could have mistakenly thought she was consenting and that he stopped when he realised she was not consenting was deemed by the court to be on one view out with the appellant’s instructions however it was a short passage of cross examination which was otherwise conducted in the vein of the appellant’s general denial. The court concluded that: “It cannot be said that trial counsel acted contrary to the instructions of the appellant to any material extent and it cannot be said that he did not lay before the court the defence which the appellant wished to put forward”.

Thirdly, the court’s opinion was that “nothing which was said during the course of trial counsel’s speech was materially inconsistent with the general nature of the defence instructed”.

In conclusion the court that that it was “not persuaded that any of the complaints advanced as to the manner in which the appellant’s trial was conducted, whether taken individually or in combination, had any merit.” Therefore the appellant had not been denied a fair trial and there had been no miscarriage of justice. Therefore the appeal was refused.