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Miscarriage of Justice Refused

HMA v Philip Donegan 2019

The Criminal Appeal Court has stressed a warning to defence advocates and solicitors over “derogatory and insulting” questioning of rape complainers and has also criticised a judge for “wholly inappropriate” comments made during such trial. Lady Dorrian stated that everyone, including judges and solicitors must keep their comments and examination within “proper and reasonable bounds”. This warning came after the case of HMA v Philip Donegan, an appeal against conviction in relation to the appellant being found guilty of two rapes in the High Court of Glasgow in April 2017. The Appeal judges took the view that the first complainer in this case was subject to an insulting cross examination and this was made worse by the trial judges own questioning of the witness after this.

The appeal judges stated that they were of the view that this took the form of cross examination in itself. Mr Donegan’s appeal was refused on the basis that there was no miscarriage of justice involving the accused. The appellant argued that the crown relied on the Moorv doctrine and this was not applicable in his case. The appellant argued that the two incidents were so different in nature they could not corroborate one and other. The appellants second ground of appeal was that the first complainer’s evidence was very contradicting and therefore no reasonable jury would have come to the conclusion that the appellant was guilty of this charge relating to this complainer. The appeal was refused and the Appeal Court issued the warning having revised the case.

Lord Justice Clerk said: “Aside from the fact that both complainers were raped during the course of dates with the appellant, there are a number of factors which, when looked at in the context of the totality of the evidence, as they must be, might reasonably be taken by a jury as being indicative of a single course of conduct undertaken by the appellant. We emphasise the point made earlier, that it is not the role of the judge or the appeal court to form a view of whether such matters do or do not give rise to such an inference, except in a case where it can be said with confidence that no reasonable jury properly directed could properly have drawn the necessary inference from them.” The matter of creditability and reliability of the witnesses is one for the jury the Appal Judges concluded.

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