The High Court has refused an application seeking to extend period of time in which he could lodge ground of appeal against his conviction.
Robert Garden was convicted of several charges of rape and assault against different complainer. He was sentence to a 13- year custodial sentence with a 3-year extension period. He attempted to appeal on the basis of defence representation. It was submitted that his Counsel at trial had failed to use evidence of Facebook messages with one of the complainers.
The case went to trial in February 2021; however, during the trial he withdrew instructions from his legal representatives. He instructed new counsel in March 2021. Again, those instructions were withdrawn at the deferred sentence. In both instances instructions were withdrawn due to a failure to use the Facebook evidence. It was submitted that some of the messages suggested that some of the sexual activity with one of the complainers had been consensual.
Intimation to appeal was lodged on time and a solicitor advocate provided an opinion in the case. He stated that these messages would not have made a material difference. At that stage this was the end of the appeal proceedings.
On the 15th of March 2023 the appellant requested an extension of time. His position being that if the Facebook messages had been used at trial they would have cause the jury to doubt the credibility and reliability of the complainer in relation to consent and her level of intoxication.
The Crown opposed the application and stated that it was unlikely the evidence would have been admissible under s.275.
In providing the opinion of the court, Lord Carloway stated: “No doubt some counsel would have attempted to use it, but others would have taken a more cautious view. First, it is not at all clear that the material relates to the particular October incident to which the complainer spoke. Secondly, whether the complainer was accepting in her messages that the sexual intercourse was consensual is dubious. Thirdly, from what the applicant said in his messages, he may have been accepting that it was not consensual.”
He continued: “The court is not, for the reasons given, convinced that this amounted to defective representation resulting in a miscarriage of justice. The applicant’s case was put to the jury. The complainers’ testimony was challenged in cross-examination. The applicant gave evidence in support of his defence. The use of the Facebook material was fraught with danger even if the trial judge could have been persuaded to admit the material at such a late stage in the process.”
The application for an extension of time was refused.