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Appeal Against Conviction Refused

HMA v KW 2017

KW’s appeal against conviction in which counsel for the appellant made “serious allegations” against the trial judge and advocate depute has been dismissed. It has been held that such allegations stating that they carried out their roles improperly were “unfounded”.

KW appeared on an indictment which alleged that while aged between 12 and 15 he sexually abused three young males and supplied drugs to them. The charge of, JG, was withdrawn at the end of the Crown case as JG had given evidence of sexual behaviour between himself and the appellant when they were children, but he was cross examined on police statements which were inconsistent with his evidence. The advocate depute made no reference to JG after this and did not address him in his speech to this jury when talking about corroboration.

The grounds of appeal maintained that the depute specifically told the jury that the evidence of JG remained available to the jury in considering the application of the Moorov doctrine; and that the Trial judge did not correct this. Factually, this was not true.

It stated that the depute made a “blatant and material… misstatement on an issue which had a critical bearing on the jury’s operation of the Moorov doctrine”. Lady Dorrian stated on appeal: “It is a matter of grave concern to the court that such statements should have been made. In our view, it was abundantly clear that the advocate depute did not suggest to the jury that the evidence of JG was available to corroborate the evidence of the remaining complainers, and it is a complete misrepresentation of his speech as a whole to suggest otherwise.”

Refusing the appeal, the judges said that in presenting grounds of appeal for the consideration of the court “counsel have a responsibility not to make assertions of fact which cannot be supported or justified”.

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