Appeal Against Conviction By Aw And Hb
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Turnbull,Lord Pentland |
| Neutral Citation | [2022] HCJAC 16 |
| Docket Number | HCA/2019 |
| Date | 28 January 2021 |
| Court | High Court of Justiciary |
| Published date | 28 March 2022 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 16
HCA/2019/000708/XC
HCA/2019/000727/XC
Lord Justice Clerk
Lord Turnbull
Lord Pentland
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
AW
and
APPEAL AGAINST CONVICTION
by
HB
Appellants
against
HER MAJESTY’S ADVOCATE
Respondent
First Appellant: K Johnston, sol adv; More & Co
Second Appellant: L Glancy; Beaumont & Co
Respondent: A Edwards, QC, AD; Crown Agent
28 January 2021
Introduction
[1] The appellants were each found guilty of raping the complainer during the same incident at the flat of the second appellant in Edinburgh. Prior to repairing to the flat the three had spent time in each other’s company at a nightclub in the city. The complainer was intoxicated. The first appellant and the complainer had previously had a relationship over a period of about 6 months. Charge one, a charge against the first appellant of having unlawful intercourse with the complainer when she was 14, during 2011, was withdrawn at the conclusion of the Crown case.
Background
[2] It had been agreed by joint minute that scientific evidence in relation to the finding of DNA could be explained by the second appellant having vaginal intercourse with the complainer and by the first appellant having vaginal and/or anal intercourse and/or oral sex with the complainer, all as alleged in the charge. Medical examination of the internal part of the complainer’s genitalia revealed numerous small healing abrasions, and the area was noted to be tender. The latter could have been sustained as a result of blunt force, penetrative trauma within the timeframe given for the alleged incident, although the findings did not shed light on whether that had been as a result of a consensual act.
[3] At the commencement of the trial consent was a live issue, each appellant having lodged a special defence. Neither appellant gave evidence nor were any prior statements by them led in evidence. The special defences were not withdrawn, nor did the trial judge ex proprio motu direct the jury to disregard them.
[4] The primary issue as the case developed related to the complainer’s credibility and reliability. The contents of various text messages between the complainer and her boyfriend in the aftermath of the incident were agreed by joint minute. He also gave evidence about retrieving certain voice mail messages on the morning after the incident which had been left on his mobile phone during the course of the night. The text messages included one at 0436, when she would have been at the locus, referring to her being with “AW’s friend” and being “scared”; at 08.43 stating “…, something really really, really, really bad happened and I’m really scared and I can’t stop crying.”; and at 09.26 stating ““He held me up against the wall and his friend shoved like half a pill down my throat, I don’t know what it was. Then I barely remember anything apart from being in a taxi.” She admitted to having lied about some of the contents of the text messages sent to her boyfriend, and in particular in relation to the one sent at 0926. She had no recollection of leaving the voicemails and only knew about them when her boyfriend told her later.
[5] To corroborate the complainer’s evidence as to lack of consent the Crown relied upon:
(i) Extreme distress exhibited by the complainer to her boyfriend in a phone call after she left the locus in the morning, some time after 0915 hrs. She was described as incredibly distressed, distraught, and incoherent. He had to ask her to calm down multiple times because he couldn’t understand what she was saying, she was in hysterics.
(ii) The evidence of her boyfriend as to the contents of voicemails from her, including one at a time when it could be inferred she was at the locus with the appellants, wherein she sounded in distress, saying “No”, “Please don’t” and “leave me alone”, audible to him over a background of male laughter. The actual recordings were not led in evidence. [Although it was arguable that what he heard during this call was res gestae the Crown did not present the matter on this basis. We note that in the course of his earlier police statements the witness had made no reference to these voicemails, which were not available in court, the witness stating that they had been recorded on an old phone he no longer had, and that he had not preserved them].
(iii) Evidence of a medical examination of the complainer about 60 hours after the alleged incident, which revealed bruising to the complainer’s arms, on the inner aspect of the left thigh, close to the groin, and which were in keeping with pressure from fingertips/hands applied to these areas within the timeframe of the alleged incident.
[6] The Advocate Depute submitted to the jury that they could accept the distress as genuine and directly attributable to the incident. The text messages and other voicemails were addressed by the Advocate Depute in the context of the credibility and reliability of the complainer. She submitted that there was in fact no evidence that the complainer consented, and that there could have been no basis for a reasonable belief in consent.
The Charge
[7] The trial judge gave a basic direction on the need for corroboration in the form of evidence from “a separate source which confirms or supports the principal source of evidence”. That other source could be direct, such as an eye witness or a document, or indirect in the form of supporting facts and circumstances.
[8] The purpose of the special defence was to give notice to the Crown, did not alter the burden of proof, so the defence did not need to lead evidence in support of it, and any evidence relating to it should simply be considered along with the rest of the evidence. He then said this:
“In this case, the accused are both saying that the sexual behaviour between them and FS was consensual, hence they should be acquitted of the charge against them.“
[9] Having defined the crime of rape he went on to say:
“Now, these three things, the intentional or reckless penile penetration, lack of consent by the person and the absence of reasonable belief by the accused that she consented all have to be proved by corroborated evidence.”
He gave an appropriate definition of consent, then addressed the issue of reasonable belief, in the course of which he stated:
“Here obviously the issue is that there was belief that she was consenting.”
[10] He explained that any belief had to be reasonable, not simply honest, adding:
“…. you look objectively at what the facts tell you about the interaction between the person and the accused and their shared understanding of what was happening. To decide if the accused's belief that the person was consenting was reasonable you have to have regard to, for example, whether he took any steps to find out if she was consenting, and what those steps were.”
[11] In the course of his charge the trial judge made no reference to the issue of distress, or its evidential significance, nor to the medical evidence, or its evidential significance. He did not direct the jury as to the use to which the text messages or voicemail messages could be put, and gave no directions on hearsay, save to the extent that he had previously given directions on the use of police statements.
Other matters
[12] Two matters were raised by the administrative judge during the single judge procedural hearing in this case. The first was that the court required to see the section 275 applications which had been lodged and granted in the case. The second was that the court wished to be addressed on the appropriateness of the directions given by the trial judge in relation to reasonable belief in consent, as noted above.
Section 275
[13] Each appellant had lodged an application under section 275 of the Criminal Procedure (Scotland) Act 1995, which were allowed at separate preliminary hearings. Paragraphs (a) – (c) and (f) of the first appellant’s application were granted unopposed. The application for the second appellant was granted unopposed. On the morning of the trial a second application was granted, unopposed, in favour of the first appellant.
First appellant
[14] The first application granted for the first appellant was in the following terms:
(a) That between 1 April 2011 and 30 June 2011 the accused and the complainer were in a sexual relationship with each other. During that period, the accused and the said complainer experimented with rough, forceful sex. The complainer at that time told the accused that she liked him to use force, and that she liked being spanked. The complainer was aware that the accused enjoyed sadomasochistic sex
(b) That in 2015 and 2016, the complainer … and the accused contacted each other using social media and met up with each other in person.
(c) That between January 2016 and the date libelled, the complainer ... and the accused maintained contact through the dating app Tinder as well as by text message. During those communications, the complainer and the accused discussed meeting up with each other for the purpose of engaging in sexual activity. They also frequently discussed the sexual activities in which they liked to engage. The complainer in one message suggested that she liked to engage in sexual intercourse with two men.
(f) That the complainer had reported a phobia of doctors.
[15] Paragraphs (a) – (c) were said to be relevant to the issue of consent, and in the case of (a) and (c) to the issue of reasonable belief in consent; (f) was said to be relevant to distress, and to offer an alternative explanation of the apparent fact that the complainer was distressed during the medical examination. In relation to paragraph (c) it was suggested that the evidence referred to therein would allow the inference that the complainer wanted to engage in sexual activity with the accused on the date libelled. The same inference was to be drawn from paragraph (a), which related to activity...
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