NOTES OF APPEAL BY DYLAN WILLIAMSON AND KIARA-LEE GALLAGHER [2021] ScotHC HCJAC_50 (08 December 2021)

NOTES OF APPEAL BY DYLAN WILLIAMSON AND KIARA-LEE GALLAGHER [2021] ScotHC HCJAC_50 (08 December 2021)

The court held that the fresh expert evidence was available at the time of trial and no reasonable explanation was provided for its absence. The evidence did not materially affect the critical issue of consent, as Dr Hiremath had conceded in cross-examination that the injury could have occurred during consensual intercourse. The decision not to call further expert evidence at trial was a reasonable tactical choice. The extended sentence was not justified as there was no substantial basis to conclude that ordinary supervision would not protect the public from serious harm; thus, a determinate sentence was substituted.

Citation
[2021] ScotHC HCJAC_50
Parties
First Appellant: Dylan Williamson; Second Appellant: Kiara-Lee Gallagher; Respondent: Her Majesty's Advocate
Jurisdiction
Scotland
Judgment Date
08 December 2021
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal against conviction refused; appeal against sentence allowed in part.
Legal Topics
Rape, Consent, Expert Evidence, Fresh Evidence on Appeal, Defective Representation, Sentencing
Criminal Law Rape Consent Expert Evidence Fresh Evidence on Appeal Defective Representation Sentencing

Case Brief

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Parties

Dylan Williamson

First Appellant

Kiara-Lee Gallagher

Second Appellant

Her Majesty's Advocate

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether fresh expert evidence on genital injury and pain should be admitted on appeal
  2. 2 Whether trial counsel's handling of expert evidence constituted defective representation
  3. 3 Whether the existence of genital injury and pain is probative of non-consensual intercourse

Ratio Decidendi

The court held that the fresh expert evidence was available at the time of trial and no reasonable explanation was provided for its absence. The evidence did not materially affect the critical issue of consent, as Dr Hiremath had conceded in cross-examination that the injury could have occurred during consensual intercourse. The decision not to call further expert evidence at trial was a reasonable tactical choice. The extended sentence was not justified as there was no substantial basis to conclude that ordinary supervision would not protect the public from serious harm; thus, a determinate sentence was substituted.

Court Disposition

Appeal against conviction refused; appeal against sentence allowed in part.

Orders

  • Convictions upheld for both appellants.
  • Extended sentence for Mr Williamson quashed and replaced with a determinate sentence of 6 years, backdated to 14 January 2021.