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APPEAL COURT, HIGH COURT OF JUSTICIARY
28 February, 2000
Lord Justice Clerk
Appeal No: 334/96
OPINION OF THE COURT delivered by LORD KIRKWOOD
 On 29 September 1995 at Edinburgh Sheriff Court the appellant was convicted after trial of a charge that on 20 May 1995 in the house in Edinburgh he assaulted his wife, residing there and brandished a knife, threatened to kill her, forced her to remove her clothing, demanded that she had sexual intercourse with him and cut her on the thumb with said knife. On 6 November 1995 he was sentenced to three months imprisonment. He has appealed against conviction and sentence.
 On 20 May 1995 the complainer and the appellant were living in the matrimonial home with their two children M aged 13, and C, aged 9. The complainer and the appellant occupied separate bedrooms. In late April 1995 the complainer had raised divorce proceedings against the appellant.
 The complainer gave evidence that in the early hours of the morning of 20 May she was wakened when the appellant returned home. He came into her bedroom, sat on the edge of her bed and said that he wanted a cuddle and that he still loved her. He left the room and returned a few minutes later wearing pyjamas. He repeated that he wanted a cuddle and said that he wanted to get into bed beside her. She told him to go to his own bed. Shortly afterwards the appellant went downstairs and he came back upstairs and again went into the complainer’s bedroom. He had a knife in his right hand, which she said that she recognised as the smallest knife from a set in the kitchen. He walked to her bed and clambered onto it. He climbed over her to the other side of the bed and told her that he was going to make love with her. She got out of bed and he said “I’m going to make love with you and if you don’t I’m going to kill you because my life is at an end”. She grabbed his right hand with her left hand and they struggled on top of the bed. The appellant seized her by the shoulder with his left hand. She was frightened and she agreed to have sexual intercourse provided that the appellant put the knife away. He said that he would put it away and told her to take her clothes off. She did not wish to do so but he insisted and she agreed to take them off. When he left the bedroom she took off her pyjamas and dropped them on the floor beside her bed. The appellant came back into her bedroom. He still had the knife in his right hand and in his left hand he had what looked like wire or rope. She assumed that he intended to tie her up and she went into a complete panic. She seized his right hand and there was a struggle near the door. She was trying to get out of the bedroom but she pushed the appellant back against the door and it closed. The room was then, she said, in total darkness. She managed to get out of the bedroom into the hallway and shouted for her daughter. The appellant put his hand over her mouth but she prised it away. She again shouted for the daughter and the appellant tried to pull her back. C had wakened and the complainer told her to fetch a neighbour. C started to go downstairs but the appellant said “No, C” and took off after her. The complainer went into the livingroom where there was a telephone and dialled 999. She noticed that she had blood on her hands and saw that her thumb was cut. She thought that it must have been cut in the hallway because there was no blood when she took off her pyjamas. The complainer, who was still naked and barefoot, ascertained that C was all right and she then went to the front door and stood outside on the mat, looking for the police. She went into the kitchen and put on a lightweight jacket. She then went out, crossed the road and hid behind a car waiting for the police to arrive.
 The appellant gave evidence in his own defence. He said that when he had returned home he had gone into the complainer’s bedroom, spoken to her and had then started putting washing away. He went to his own room, put on pyjamas and returned to the complainer’s room where he sat on the edge of the bed. He might have asked for a cuddle and he ruffled her hair and kissed her on the cheek. She then pulled a knife from under her pillow. He pushed her back and started to walk away. She had the knife in her left hand, although she was right-handed. She flew out of bed at him. She was naked, which he described as being highly unusual. He turned and saw that she had the knife in her right hand. He took the knife from her and threw her against the wall. He thought that he had used his left hand to bend her hand back when he had taken the knife. He said that his hand was dripping blood. The complainer shouted to C, who was in a complete panic. C went downstairs and the appellant followed her because of her panic. He later took the knife into the kitchen and left it there. He said that there must have been blood on the knife because his hand was bleeding. He maintained that it was impossible that he should have demanded sex from his wife: he had no urges “because of the Prozac”. He thought that the complainer had made up her version of events to improve her chances of being awarded custody of the children, the house and a financial settlement.
 Evidence for the Crown was given by C, the complainer’s mother, Professor Anthony Busuttil, WPC Ferguson, one of the police officers who had attended at the house in answer to the 999 call and two other police officers. M, the parties’ son, gave evidence for the defence.
 The sheriff accepted the evidence of the complainer. She found her to be a credible and reliable witness who gave her evidence in a straightforward manner, although she was still clearly distressed. The sheriff found the appellant to be evasive and incredible and, except in so far as his evidence coincided with that of other witnesses whom she accepted, she found his evidence to be incredible and unreliable. Having accepted the complainer’s evidence to be credible and reliable, the sheriff then turned to consider whether or not there was adequate corroboration of her evidence. In that connection the sheriff made the following observations:
“I found the complainer’s evidence was corroborated by not only her distress, but also, inter alia the injury she sustained; C’s impression that the appellant was the aggressor; her shouts to C to get Annette; the appellant’s stopping C leaving; the appellant’s leaving the scene; the fact that Mrs. A left the house naked and barefoot and was found by the police to be wearing only a light jacket when they later arrived; the fact that Mrs. A called the police, and the finding of spots of blood on the bedclothes on Mrs. A’s bed by W.P.C. Ferguson”.
 The sheriff found that when the police arrived the complainer was bleeding profusely from a cut to her right thumb which extended the whole length of the nail and penetrated the nail bed. The appellant had two small, superficial cuts each measuring about 2-3 cm. on the palm of his left hand, one under the ring finger and one below the thumb.
 In relation to his appeal against conviction the appellant lodged various grounds of appeal and we were also favoured with the appellant’s written submissions which extend to some 63 pages. In these submissions the appellant criticises the sheriff’s method of reaching her verdict, alleges that he did not receive a fair or impartial trial and also seeks to found on certain additional evidence which was not heard at the trial. He also lodged a document containing his written justification for the admission of the fresh evidence.
 At the outset it is important to note that the appellant did not submit that there had not been sufficient evidence to entitle the sheriff to convict. However, he submitted that there were significant matters which the sheriff had failed to take into account, he criticised the way in which she had dealt with the issue of corroboration and he also criticised her approach to the evidence, under reference to the decision in Fox v. H.M. Advocate 1998 S.C.C.R. 115.
 We will deal first with the main submissions put forward by the appellant in support of his contention that there were significant matters which the sheriff had failed to take into account.
 (1) Photograph N shows the inside door handle of the rear bedroom which was occupied by the complainer. Photograph O showed the outside door handle of the front bedroom which was occupied by C and the appellant. The appellant submitted that it was clear from the two photographs that there was no blood on either door handle and this should have been noticed by the sheriff. In particular, if the complainer’s evidence was correct there had to be blood on the door handle shown in photograph O as the complainer, whose right thumb had been cut and was bleeding, said that she had been grappling with her right hand to get the door open. He submitted that the truth of the matter was that the door was open, as C had said, and had not been closed. The absence of blood on the door handle was significant as it showed that the account given by the complainer was wrong but the sheriff had not taken it into account at all.
 However, there was no evidence led at the trial of either door handle having been examined for the presence of blood and it would not have been possible for the sheriff to find it established that there was no blood on either door handle simply by looking at the two photographs. That being so, we consider that this particular submission of the appellant is without merit.
 (2) The appellant submitted that the complainer had given evidence that he had had his left hand, the one which had been cut, over her mouth at one stage when they were in the hallway. If her evidence on that matter was correct, there would inevitably have been significant amounts of blood on and around her mouth. However, no evidence to that effect was given by the complainer, or by C, or by the police officers who saw her. This showed that the complainer had not been telling the truth but it had been ignored by the sheriff.
 The difficulty for this submission is that WPC Ferguson, one of the police officers who had answered the complainer’s 999 call, gave evidence that, when she saw the complainer in the road outside, the complainer had smears of blood on her face. The evidence was not such as to establish that there was no blood on or around her mouth.
 (3) The appellant founded on a reply given by Professor Busuttil, the forensic pathologist, to the effect that, if the appellant’s injuries had been “produced in the event that was put to me by the fiscal, they would be defensive type injuries”. The appellant submitted that the sheriff had not properly focused on this critical evidence which supported the appellant’s account of the incident.
 However, the sheriff observes that Professor Busuttil’s evidence was that the injuries which he saw on the appellant’s hand could have been caused by the knife, if he had grasped the blade on two separate occasions. They could not have occurred simultaneously. The appellant had described seizing the knife once to take it from the complainer. Accordingly, the appellant’s injuries were not consistent with the evidence which he had given. In any event, the original question which had been put to Professor Busuttil asked him to assume that the appellant’s account of events was correct, but the sheriff, having heard the evidence of the complainer and the appellant, believed the evidence of the complainer and rejected the evidence of the appellant. Even if there had been evidence that the appellant’s injuries could have been consistent with his account of events, that account had been firmly rejected by the sheriff, and such evidence cannot be of any assistance to the appellant in the present appeal. In the circumstances we cannot fault the approach taken by the sheriff to this part of Professor Busuttil’s evidence.
 (4) The appellant had given evidence that he had been taking Prozac and that it was impossible that he should have demanded sex from the complainer because he “had no urges, because of the Prozac”. At the trial Professor Busuttil had stated that Prozac is “both tranquilliser and anti-depressant, so it calms down body functions as well as its emotional and psychological functions…It may have, not in every single person, but it may cut down on libido, yes”. The sheriff had failed to take into account the physical and psychological effects of Prozac on the appellant.
 The sheriff accepted that the appellant had been taking Prozac and she also accepted Professor Busuttil’s evidence that Prozac may reduce libido. The appellant had given evidence that he had had no sexual urges because of the Prozac, although at the time he did not know that that was the reason. The sheriff also noted that there was no expert evidence as to the frequency of that particular side-effect of the drug nor was there evidence from a medical practitioner that the appellant suffered from that particular side-effect. The sheriff took into account the evidence relating to the possible side-effect of Prozac in relation to libido but she rejected the evidence of the appellant and accepted the evidence of the complainer regarding the sexual approach which the appellant had made to her. In our opinion no valid criticism can be made of the sheriff’s approach to the evidence relating to the Prozac which the appellant had been taking.
 (5) The appellant sought to found on the fact that there was no evidence that there had been any blood on the complainer’s pyjamas. His left hand had been cut when he had taken the knife from the complainer in the bedroom and the complainer had given evidence that when she was in bed she had been wearing pyjamas and that he had seized her by the shoulder with his left hand and they had struggled on top of the bed. It followed that if her evidence was correct there would have been his blood on her pyjamas but they had not been examined for the presence of blood and the complainer had said that there had not been any blood on them. This showed that her account of the initial incident had been wrong but the sheriff had not taken that into account.
 However, this submission really proceeds on the basis that the appellant’s evidence that his left hand had been cut when he had taken the knife away from the complainer in the bedroom was correct. The complainer denied that any such incident had taken place and her evidence was believed by the sheriff, while the appellant’s evidence was rejected. That being so, there was no evidence to establish that the appellant’s hand had been cut in the course of the initial part of the incident in the bedroom and accordingly the absence of any blood on the complainer’s pyjamas cannot properly be founded on by the appellant as a factor which was capable of having an adverse effect on the credibility of the account given by the complainer.
 Having made his submissions relating to matters which the sheriff had failed to take into account, the appellant went on to criticise the way in which the sheriff had dealt with the issue of corroboration of the complainer’s evidence. In the first place, the appellant submitted that an accused is entitled to the presumption of innocence. Once it was found that there was a sufficiency of evidence to corroborate the factum probandum, and after full legal proof of the Crown case in the positive sense, a question must still be raised as to whether there is some evidence for the accused which raises reasonable doubt or removes corroboration of the factum probandum and a second search must be carried out to find the answer to that question. In this case the sheriff had accepted the evidence of the complainer and held that there was circumstantial evidence which was capable of providing the necessary corroboration. However, the sheriff had simply considered whether there was sufficient evidence to infer the guilt of the appellant. She had not carried out a second search in order to ascertain whether there was enough in the defence case to remove the corroboration or to raise a reasonable doubt as to the guilt of the appellant. In the circumstances the presumption of innocence had not been fully taken into account. The appellant accepted that the approach adopted by the sheriff had been in accordance with the approach approved in the later five judge case of Fox v. H.M. Advocate 1998 S.C.C.R. 115 but he submitted that the case of Fox might require to be reviewed as the approach in Fox was to search for evidence supporting the Crown case and that was akin to a presumption of guilt. What the sheriff should have done in this case was to direct herself to any evidence of significance which would strike at the heart of the Crown case and if she had done so she would have been obliged to reconsider her assessment of the complainer’s credibility and reliability. In other words, even after the sheriff had decided to believe the evidence of the complainer and had reached the conclusion that there was adequate corroboration of her evidence, there still had to be a search of the whole evidence in order to ascertain if there was something which created a reasonable doubt as to the guilt of the appellant. In this case the sheriff had failed to carry out a second search.
 We are satisfied that there is no merit in the appellant’s submissions on this matter. In Fox the Lord Justice General (Rodger) made the following observations (at pages 126G-127B):
“There seems no good reason why circumstantial evidence should not be
available to the jury as a potential source of corroboration simply because the accused has put forward a possible scenario which could furnish an innocent explanation of the facts and circumstances. The jury may reject the accused’s evidence and his scenario. Indeed in any case where the direct evidence of the Crown witness is inconsistent with the accused’s account, in accepting the evidence of the Crown witness, the jury will have rejected the accused’s account. With the accused’s account out of the way as a possible explanation for the circumstantial evidence, the jury can consider any other possible explanations for the facts and circumstances. Having done so, they will be entitled to find that the circumstantial evidence fits with the direct evidence of the Crown witness. If that is their conclusion, then the circumstantial evidence as interpreted by them will confirm or support the direct evidence and complete the legal proof.”
 In our view the case of Fox set out the correct approach to be adopted to the issue of corroboration in a criminal trial and the appellant’s criticisms of the decision in that case are without foundation. It was common ground that the approach of the sheriff in the present case accorded with the approach set out in Fox. In particular, she considered all the evidence, including the evidence of the complainer and of the appellant. Having done so she believed the evidence of the complainer and rejected the evidence of the appellant. She then considered whether there was evidence which provided the necessary corroboration of the complainer’s evidence. The appellant seemed to be suggesting that once the sheriff had decided to accept the evidence of the complainer in preference to that of the appellant it was incumbent on her to go through the whole exercise again. In our opinion the general approach of the sheriff to the issue of corroboration cannot be faulted.
 The appellant went on to submit that in the particular circumstances of this case there was insufficient evidence to provide the necessary corroboration of the complainer’s evidence. The sheriff had relied on evidence of the complainer’s distress. However, the complainer’s shaking could be attributable to other factors. It was cold at the time of the incident in question and she had been standing outside wearing only a jacket. She was planning a divorce and it was conceivable that she had deliberately gone out into the cold to invoke shaking. Any distress could equally have been attributable to other factors, such as what she had done or the fact that the appellant had taken the knife off her. It was submitted that it had not been established in this case that the complainer’s distress was attributable to the fact that she had been assaulted by the appellant. Further, the sheriff had been wrong to take into account as corroboration the impression of a 9 year old child that the appellant had been aggressor. The fact that the complainer shouted to C to get a neighbour was neutral, the complainer herself having made no effort to shout for help or knock on a neighbour’s door. With regard to the finding that the appellant had stopped C from leaving, there had been no evidence from C that the appellant had prevented her from leaving the house. The fact that the appellant had left the scene was not capable of providing any corroboration of the complainer’s evidence that he had assaulted her, particularly having regard to the fact that his medical condition that night was such that he had to be admitted to hospital suffering from asthma. It was disputable whether the complainer had actually left the house naked and she was wearing a jacket when the police arrived. It was significant that she did not go to a neighbour’s house for help. The fact that she called the police could not provide corroboration of her evidence as her action was equally attributable to a deliberate plan on her part to attack the appellant and then call the police, alleging that she had been assaulted. Finally, the spots of blood on her bedclothes could not go any way towards corroborating her evidence. The complainer had given evidence that she was not cut in the first struggle and that she thought that she had been cut when she was struggling with the appellant in the hallway. On that basis the blood on the bedclothes would have been the appellant’s and the presence of the blood tended to support the appellant’s account of events. It certainly did not support the complainer’s account.
 We have considered all the submissions which the appellant made in relation to the alleged inadequacy of the evidence which the sheriff founded on as constituting corroboration of the complainer’s evidence. With regard to the blood spots on the bedclothes, there was no evidence as to whose blood it was and in this connection it has to be borne in mind that the appellant did not give a blood sample to the police, although requested to do so. However, as the Advocate depute observed, the presence of blood on the bedclothes was consistent with there having been a struggle on the bed. Even if the blood on the bedclothes is left out of account there was, in our opinion, ample corroboration of the complainer’s evidence. In particular, there was the evidence of her distress and the injury which she had sustained. When the police arrived there was evidence that she was shaking violently and appeared to be very frightened and blood was dripping from a cut to her right thumb which had penetrated the nail bed. It was for the sheriff to determine, on the evidence, whether her distress was due to the fact that she had been assaulted by the appellant and the sheriff was, in our opinion, entitled to draw the inference that the distress was caused by the appellant’s assault on her. Further, when the police arrived the complainer was found to be out in the street barefoot, wearing only a jacket, and she had called the police and told her daughter to get a neighbour. As we have said, there was ample corroboration of the complainer’s evidence and we consider that the appellant’s criticisms of the sheriff’s approach to the issue of corroboration are without merit.
 The appellant also sought to argue that the police failed to investigate the case properly in that they did not presume the appellant’s innocence and did not investigate impartially the appellant’s complaint against the complainer. It may be that the police were hampered in their investigation by the appellant’s failure to provide a blood sample when asked but we do not consider that there is any substance in the appellant’s criticisms of the police investigation.
 At the trial the complainer gave evidence that she had sworn several affidavits for the purpose of the divorce proceedings. The appellant submitted that the sheriff should have allowed the complainer’s affidavits to be put to her, that what was in fact an affidavit and a prior inconsistent statement had been referred to by the sheriff as a precognition and that the sheriff’s finding had prevented a whole line of questions as to the complainer’s credibility. However, the trial transcript makes it clear that in the course of his cross-examination of the complainer the appellant’s solicitor sought to put to her certain passages from an affidavit, namely a supplementary affidavit dated 23 August 1995 (Defence Production No. 1), and that the sheriff allowed these passages to be put to her despite an objection by the procurator fiscal depute.
 We have given careful consideration to all the submissions made by the appellant criticising the way in which the sheriff approached the evidence in this case but we have not been persuaded that there is merit in any of the appellant’s submissions.
 The appellant also sought to found on two heads of what he described as fresh evidence. In the first place, he referred to a tape recording which had been produced at the trial but which he said had effectively been withheld from the defence. The appellant had been recording telephone conversations taking place in the matrimonial home and for this purpose he had placed a recording machine in the loft. The complainer was unaware that her telephone calls were being recorded. The appellant’s position was that the tape recording was being carried out for the purpose of his business activities. In the event the tape recording of telephone conversations in the house, both before and after the incident on 20 May, was produced by the Crown (Label 12). The procurator fiscal depute wished to found on the recording of the 999 call as it was alleged that when the call was being made C could be heard in the background referring to a knife. Shortly before the trial started the defence solicitor asked if he could listen to that part of the tape which related to the complainer’s 999 call. It had apparently been thought by the appellant that the tape recording might have picked up a comment which he said had been made by the complainer, and which could be founded on by the defence. The procurator fiscal depute and the defence solicitor both listened to that part of the tape, which was also played in the course of the trial. The Crown had not prepared a full transcript of all the taped conversations but the procurator fiscal depute, after the trial started, listened to other parts of the tape and certain of his cross-examination of the appellant was based on what he had heard on the tape. The appellant’s position was that after the 999 call the tape machine had continued to record the complainer’s conversations and that certain of her conversations had shown that she had not told the whole truth when she had given evidence. The appellant submitted that neither he nor his solicitor could have known of the nature of these later conversations, and that the Crown had had a duty to ensure that the defence were in possession of all the information on the tape. In the circumstances the evidence of the later recorded conversations had for all practical purposes been withheld from the defence. A transcript of the conversations, including those following the 999 call, had now been made available and they demonstrated the mendacity of the complainer. She had been asked at the trial what she had done on Saturday 20 May during the day, and whether she had gone and seen anybody. She had not disclosed what had been revealed in the course of a taped conversation with her solicitor, Mr. Fife, namely, that she had telephoned Mr. Fife that morning and that she had then gone to his house. This evidence would have been significant in respect that the appellant’s case was that she had falsely alleged that she had been assaulted because she wanted to get him out of the house and obtain an exclusion order. Mr. Fife had previously advised the complainer to keep a diary and, if the sheriff had known that she had visited Mr. Fife the morning after the incident, it would have cast light on the complainer’s motive in falsely asserting that the appellant had assaulted her. Even if the complainer had not lied deliberately, she had not told the whole truth. Further, in a taped conversation with Detective Constable Wilson she had denied all knowledge of an incident in January 1994 but at the trial she had given her version of the incident. The appellant went on to submit that a taped conversation between Police Constable Reid, who did not give evidence, and an officer at the police station shortly after the 999 call was also of crucial importance to the defence case in relation to the knife which had been used in the course of the incident. The Crown had produced one knife at the trial and the defence had produced a different knife. The complainer gave evidence that the kitchen knife produced by the Crown had been the knife used by the appellant. It had a broken handle and it had been found in the kitchen by her mother the next morning. The appellant gave evidence that the kitchen knife produced by the defence, which had been retrieved from the house by his son M, had been the knife which his wife had used and that there were only two knives of that size in the house. The appellant submitted that there had been two unsuccessful police searches for the knife used in the incident but the knife produced by the Crown had allegedly not been found until the following morning. By that time there was no blood or fingerprint on it. In the course of the taped conversation between Police Constable Reid and the officer in the police station, Police Constable Reid had said that he had found a kitchen knife but that it had not been shown to the complainer. The complainer had given evidence that she had been shown a knife by the police but it was not the knife which the appellant had used. The knife produced by the Crown was very distinctive as it had a broken handle and an exposed rivet. While it was distinctive, the police had not been looking for a knife of that description, although if they had been looking for it they would have been certain to have found it in the kitchen, if it had been there. If it had been the knife used in the incident, and on the assumption that it had not been washed, it would have been bound to have had fingerprints and blood on it. That would have proved the case in the appellant’s favour. The knife found by Police Constable Reid had not been produced but the appellant submitted that it was the knife which the appellant had had and he had described in the course of the police interview. If Police Constable Reid had given evidence he would have confirmed what the appellant had said. However, the appellant was unaware in the course of the trial of the telephone conversation between Police Constable Reid and the police station about the finding of the knife. The Crown position was that the knife found by Police Constable Reid could have been the knife produced by the defence or, alternatively, it could have been a third knife and it seemed to us that there was merit in the Crown’s submissions on this matter.
 The Advocate depute pointed out that the tape was a production at the trial and submitted that it would have been open to the defence to listen to the whole of the tape, and if necessary an adjournment for that purpose could have been requested. The appellant had not put forward any reasonable explanation of why the evidence of the complainer’s taped conversations after her 999 call, if it would have been of assistance to the appellant’s defence, had not been heard at the trial.
 The appellant also sought to found, as additional evidence, on parts of the transcript of the evidence given by the complainer at the divorce proof in July 1997, almost two years after the trial. In the course of her evidence at the proof she had said that there were blood spots on the bedclothes but she did not think that they were her blood. They were never tested but if they were not her blood they must be the appellant’s blood as she was not aware of being cut when she was in bed. The appellant also submitted that at the divorce proof the complainer had given a different account of events at the time of the incident on 20 May and that her evidence at the proof did not support the findings in fact made by the sheriff at the trial. For example, at the trial she said that she had dropped her pyjamas on the floor beside the bed but at the divorce proof she said that she had dropped them on the floor in front of the radiator. There was a conflict between her evidence at the trial and her evidence at the divorce proof as to where the struggle began, where the appellant was supposed to have gone after leaving the bedroom and what happened in the course of the supposed second attack.
 The appellant’s submission was that the additional evidence comprised in the tape recording and the complainer’s evidence at the divorce proof, when compared with the evidence which she had given at the trial, demonstrated mendacity on the part of the complainer. Had the sheriff known of this additional evidence she could not have found the complainer to be credible and reliable and she would therefore not have convicted the appellant. In any event, the additional evidence was sufficient to raise at least a reasonable doubt as to the guilt of the appellant. On the whole matter it was clear that there had been a miscarriage of justice in this case.
 So far as the tape recording is concerned, section 175(5) of the Criminal Procedure (Scotland) Act 1995 provides that an appellant may bring under review by an appeal any alleged miscarriage of justice, including one based on the existence and significance of evidence which was not heard at the original proceedings. In terms of section 175(5A) evidence which was not heard at the original proceedings may found an appeal only where there is a reasonable explanation of why it was not so heard. In the particular circumstances of this case we are satisfied that no reasonable explanation has been put forward of why the complainer’s conversations after her 999 call were not heard at the trial. It was the appellant who had installed the tape recording machine in order to record telephone conversations in the matrimonial home. The complainer did not know that this was being done and the appellant must have been aware of the fact that the machine was switched on and that all the telephone conversations, including those made after the 999 call, were being recorded. It would have been a simple matter for the appellant’s solicitor to listen to the remainder of the tape which had been produced by the Crown at the trial and part of which, namely, the 999 call, was actually played in the course of the trial. Even if he had not had time to do so before the start of the trial he could have sought an adjournment to enable him to listen to the tape and it is difficult to see how such a request could have been refused. On the basis of the information available to us it appears that the defence solicitor, Mr. Harrower, did not ask to listen to any of the conversations after the 999 call. In the circumstances we do not consider that there is any substance in the appellant’s contention that the contents of the rest of the tape were for all practical purposes withheld from him. In the absence of a reasonable explanation as to why the rest of the tape was not heard at the trial, the evidence of the complainer’s later telephone conversations is not admissible for the purpose of the present appeal. In any event, we have not been persuaded that, even if the procurator fiscal depute had been aware of the terms of all the taped conversations made after the 999 call, it would have been apparent to him that any of the conversations were likely to have been of assistance to the defence.
 With regard to the evidence given by the complainer at the divorce proof in 1997 it is, of course, clear that that evidence could not have been before the sheriff and we have to consider the significance of that evidence (section 175(5)). In doing so we apply the well-known test laid down by the Lord Justice General (Emslie) in Cameron v. H.M. Advocate 1987 S.C.C.R. 608 at page 619. We have considered the appellant’s submissions and, in particular, the alleged discrepancies between the evidence given by the complainer at the trial and the evidence which she gave at the divorce proof. In our opinion any discrepancies which exist can properly be regarded as immaterial. We have not been persuaded that the additional evidence would have been likely to have had a material bearing on the sheriff’s determination of the credibility and reliability of the evidence given at the trial by the complainer. In particular, we are not satisfied that even if the sheriff had known of the evidence given by the complainer at the divorce proof, her approach to the assessment of credibility would have been different (Marshall v. Smith 1983 S.C.C.R. 156).
 The appellant suggested at one stage that the appeal raised a devolution issue because the Crown had opposed the introduction of the fresh evidence on which he had sought to found. He has not lodged a minute seeking to raise such an issue but, in any event, we are not satisfied that a devolution issue does arise in terms of section 57(2) of, and Schedule 6 to, the Scotland Act 1998. That subsection provides as follows:
“(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law”.
In the present case the appellant was unable to point to any act of the Lord Advocate which was incompatible with his Convention rights or with Community law. What has happened in this case is that the Crown has submitted arguments to the court relating to the appeal, including the appellant’s attempt to introduce fresh evidence, and these arguments have been dealt with by the court. Even if the Advocate depute had made no submissions to the court, it would still have been necessary for the appellant to persuade us that he was wrongly convicted.
 Having considered the grounds of appeal and the petitioner’s written submissions, and having heard the oral submissions which the appellant made to us in support of his appeal, we are satisfied that he has failed to demonstrate that there was a miscarriage of justice. The appeal against conviction is refused and the hearing will be continued to enable the appeal against sentence to be determined.