Muhammed Abbas V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Kingarth,Lady Paton |
| Neutral Citation | [2013] HCJAC 55 |
| Published date | 22 May 2013 |
| Court | High Court of Justiciary |
| Date | 22 May 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Mackay of Drumadoon Lord Kingarth | [2013] HCJAC 55 Appeal No. XC204/12 OPINION OF THE COURT delivered by LORD KINGARTH in APPEAL AGAINST CONVICTION by MUHAMMAD FAKHER ABBAS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Alt: Wade, AD; Crown Agent
22 May 2013
[1] On 9 March 2012, at the High Court in Edinburgh, the appellant was found guilty, by a majority verdict, of a charge that:
"(1) on 17 February 2011 at [XX], Newtongrange, Midlothian you ... did assault [JM] c/o Lothian and Borders Police, Dalkeith, Midlothian, seize her on the neck, thus restricting her breathing, push her onto a sofa, restrain her, lower her nightwear ... and penetrate her vagina with your penis all to her injury, and you did thus rape her; CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009."
[2] In this appeal against conviction the appellant has presented two grounds of appeal. The first is that at a preliminary hearing on 28 October 2011 the judge erred in refusing an application made on behalf of the appellant under section 275 of the Criminal Procedure (Scotland) Act 1995. The evidence and questions which the appellant had thereby been prevented from leading or putting to the complainer related to the circumstances of an allegation of rape made by the complainer in December 2002. In the same ground of appeal it is argued the trial judge also erred in refusing the application when it was effectively renewed in the course of the trial. In the second ground of appeal, it is argued that a miscarriage of justice has resulted from what is said to have been certain improper conduct by the trial advocate depute in circumstances where he knew that the section 275 application had been refused and that those acting on behalf of the appellant could not refer to the circumstances described in it.
[3] In the course of a careful report to this court the trial judge has summarised the evidence given in the trial as follows:
"Circumstances of the offence
At the time of the alleged offence the appellant was an employee in a convenience store in Newtongrange, Midlothian. The complainer, who was aged 30, was a customer of the shop who lived nearby with her daughter [B], who was then aged 11. The complainer had met the appellant at the shop a month or two before the date of the incident. Although the appellant listened to and gave evidence at the trial through an interpreter, it appears that his command of English was sufficiently good to strike up a friendly relationship with the complainer. From time to time they would chat and smoke together outside the shop. On one occasion the appellant invited the complainer to come to his flat in Leith for a meal. The complainer accepted the invitation but on arrival with her daughter she discovered that the appellant had no food in his flat. In the end the three took a taxi to the complainer's house in Newtongrange where they ate a takeaway together and the appellant by invitation stayed the night because this would be convenient for his work at the shop the following morning. The appellant spent the night in the complainer's bedroom and the complainer slept with her daughter in the latter's bedroom. The complainer denied that she and the accused had sexual intercourse on this occasion or on a subsequent occasion when he again spent the night at her house.
On the day prior to the date of the incident which formed the basis of the charge, the complainer had visited the shop to buy cough medicine for [B]. She invited the appellant to come for a drink that evening. The appellant arrived at her house at around 9pm after finishing work in the shop. The complainer had indicated to him earlier in the day that she would again allow him to stay overnight at her house as he would be working at the shop the following morning. The complainer and the appellant drank alcohol, played with a karaoke machine and watched television. Although [B] had been in bed unwell, she was allowed to come through and join them for a while in the living room. [B] later went to her bedroom where she watched a DVD; the complainer went through from time to time to check on her.
By now it was the early hours of the morning. According to the complainer's account, she and the appellant watched a DVD together while still laughing and talking. She then showed the appellant to her bedroom with the intention that he would again sleep alone there while she would sleep with [B]. The complainer spent some time with [B] in her bedroom. She then returned to the living room, assuming that the appellant had gone to bed. She had another drink and began to tidy the cushions of the couch. At this point the appellant reappeared. He approached the complainer from behind and pushed her face down on to the couch. She fell forward and her mouth struck the corner of the couch. Her face was buried in a cushion. She thought she knew what was about to happen and protested, albeit quietly as she did not want [B] to hear what was happening. Specifically, she said to the appellant 'Please don't - I thought we were going to be friends'. She was sure the appellant would have heard. He pushed her further up the couch and pulled down her pyjama trousers. She felt a sharp pain inside her vagina. The appellant then penetrated her vagina from behind with his penis. She was crying but did not shout or scream. However, [B] (who gave evidence at the trial by video link) did hear noises and a high-pitched scream and came through to the living room. According to her account, she saw the appellant pushing her mother into the cushions of the couch. He was standing behind her putting his penis inside her from behind. She ran over and began to punch the appellant, while shouting at him and trying to drag him off her mother. The appellant released the complainer and she got up and went with [B] into [B]'s bedroom. The appellant lay down on the couch and fell asleep.
[B] was upset and insisted that the complainer telephone the complainer's mother, who lived nearby, to tell her what had happened. The complainer was reluctant to do so and attempted to persuade [B] that everything would be okay once the appellant had left the house. (It is relevant to note here that according to the evidence [B] spent a significant proportion of time living with her grandmother rather than her mother and appears to have placed greater faith in her grandmother's judgment than that of her mother.) Eventually the complainer acceded to [B]'s demands and called her mother. She told her mother that she had been raped but did not want anyone to know. She asked her mother to come to her house, but urged her not to call the police. However when the complainer's mother became aware that the appellant was still in the complainer's house she took it upon herself to call the police. By now the appellant had woken up and shortly after the telephone calls were made he left the house. The police arrived and found the complainer and [B] in a distressed state. Having been given an account of events, they went to the shop where the appellant worked and detained him. He remained in custody thereafter until trial.
Case for the defence
The appellant gave evidence. He accepted that he had had sexual intercourse with the complainer on the night in question but insisted that it had been consensual. According to his version of events, he and the complainer had begun a sexual relationship on the first night when he stayed at her house. They had also had sexual intercourse on one further occasion prior to the date of the incident forming the basis of the charge. On the night of the incident they had spent the evening drinking and dancing in the complainer's house. [B] went to bed at around 1.00/1.30 am, and about an hour and a half later he and the complainer had sexual intercourse in the living room. The appellant decided to go to bed in the complainer's bedroom but she persuaded him to come back through to the living room where they began drinking again. At some point in the course of the night the complainer gave the appellant a love bite on his neck. They danced and kissed for a further 2-3 hours and then began to have sexual intercourse again on the couch. Before he had reached the point of ejaculation, [B] entered the living room and started crying and shouting and threatening to tell the complainer's mother what she had seen. The complainer reassured the appellant that everything would be okay and he slept for a couple of hours on the couch. When he left the house to go to work in the morning he noticed nothing untoward about the demeanour of the complainer or her daughter.
In his address to the jury Mr Wheatley invited them to prefer the appellant's account of events to that of the complainer. He suggested, not implausibly, that the complainer's version left too much time during the night unaccounted for; that the reactions of the various people in the house after the time when [B] found them together in the living room were not consistent with the commission of the crime of rape; and that the lovebite on the appellant's neck (which bore traces of the complainer's DNA) was indicative of consensual sexual activity for which the complainer had no explanation.
However, it seems that the majority of the jury did not accept the appellant's version and were satisfied to the requisite standard that the offence of rape had been committed, although as noted above certain words alleging non-penile penetration of the complainer's vagina were deleted from the indictment."
[4] It is clear from that summary that there were in this case several apparently strong bases upon which the credibility of the complainer could have been, and was, attacked. However, as the trial judge himself has stressed, it is plain that a majority of the jury cannot have accepted the appellant's account,...
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