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High Court of Justiciary – Appeal on the Grounds of an Unfair Trial

KP v HMA 2017 HCJAC 57

A man found guilty of rape of a 15-year-old girl,  who is serving a 5 year sentence, claimed that the advocate depute’s cross-examination and speech to the jury were  prejudicial in his Trial and as a result he did not receive a fair Trial.

However, this week, he has had an appeal against his conviction refused.

Nevertheless, appeal judges criticised the Prosecutor’s line of questioning.The first ground of appeal was that the cross-examination of the appellant by the Advocate Depute and his speech to the jury were prejudicial to the appellant and thus he did not receive a fair trial. The Advocate Depute told the appellant that he raped the complainer and that he was lying by denying it in front of the Jury.

It was also expressed that the appellant sexually assaulted the girl, but no sexual assault was libelled in the complaint. In the middle of the Trial a motion was made for it to be be deserted  on the basis that certain questions were prejudicial but the judge ruled that the inappropriate questions could be dealt with by instructing the jury to exclude them in deliberations.

On appeal it was accepted by the crown that some of the comments in the speech to the jury were “inappropriate,” such as the depute saying that there was enough in terms of law for the Jury to convict the accused, but they denied any issue arose in the cross-examination. Overall, however, on appeal, Lord Malcolm concluded: “It is clear that a substantial and prejudicial departure from good and proper practice occurred at this trial…While the court wishes to express its disapproval as to what happened in the present case, it has concluded that the fairness of the proceedings was saved by the judge’s careful directions (to the Jury)… It would have been a different matter if the judge had not been alert to the problems.”

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