APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord MacLean
Lord Macfadyen
[2005HCJAC7]
Appeal No: XC20/04
OPINION OF THE COURT
delivered by LORD MACFADYEN
in the reference by
THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
in the cases of
THOMAS NOBLE THOMSON,
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
Appellant: Sudjic, Solicitor Advocate; McKennas Law Practice
Respondent: Mackay, A.D.; Crown Agent
20 January 2005
[1] The appellant was convicted on 10 August 1999 of raping the complainer in her home in Stirling on 18 May 1998. He was sentenced to four years imprisonment. He appealed against his conviction, but that appeal was refused (Thomson v H. M. Advocate 2001 SCCR 162).
[2] The appeal comes before us by virtue of a referral by the Scottish Criminal Cases Review Commission under Part XA of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). The Commission examined the case in careful detail, and concluded that there may have been a miscarriage of justice which in the interests of justice should be referred to this court. The Commission set out a number of reasons for making the referral, including matters of fresh evidence. Thereafter, a Note of Appeal was lodged on the appellant's behalf. When the case called for a procedural hearing on 30 November 2004, Mr Sudjic, who appeared for the appellant, intimated that he did not intend to advance the argument based on fresh evidence.
[3] When the appeal called for hearing, the only matters raised in argument related to the refusal by the Trial Judge of applications under section 275 of the 1975 Act for leave to lead certain evidence. The Trial Judge had refused leave in respect of two matters. The first concerned allegations made by the complainer to the effect that she had been the victim of sexual offences in 1991. The second related to evidence that on an occasion in 1995 the complainer had asserted that, when she was taken to a certain ward in a certain hospital "all the doctors raped her". The applications for leave were made on the basis that such evidence would tend to show that the complainer had previously made false allegations of sexual assault, and that that bore on the credibility of her evidence that the appellant had raped her. The Trial Judge refused the application in relation to the 1991 episodes on the view that there was no proper evidential basis for exploring those matters, which were in any event irrelevant. His Lordship refused the application relating to the 1995 "hospital" allegation on the basis that it failed the "interests of justice" test set by section 275, and that in any event the proposed evidence was irrelevant.
[4] Those issues were considered by the Appeal Court in the appellant's original appeal. The court upheld the reasoning of the Trial Judge on the 1991 matters (paragraph [11]). On the "hospital" question, the court held that Trial Judge properly exercised his discretion and applied the correct test, and that it could not be said that no judge, acting reasonably, could have refused the application (paragraph [16]).
[5] Before us, Mr Sudjic indicated that, while not abandoning the appeal, he was not inclined to advance the argument with any conviction. He said that he was adopting a "neutral position". The Advocate depute argued that the points had been correctly dealt with by the Trial Judge.
[6] We are unable to differ from the conclusions reached by the Appeal Court in 2001. It was not suggested to us that a court of five judges should be convened to reconsider the matter. The appeal is therefore refused.
