Darbazi v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Turnbull,Lord Pentland |
| Judgment Date | 03 February 2021 |
| Neutral Citation | [2021] HCJAC 10 |
| Court | High Court of Justiciary |
| Docket Number | No 18 |
[2021] HCJAC 10
Lord Justice General (Carloway), Lord Turnbull and Lord Pentland
Advocate (HM) v G [2019] HCJ 71; 2019 GWD 36-575
Advocate (HM) v Montgomery 2000 JC 111; 2000 SLT 122; 1999 SCCR 959
Barclay v HM Advocate [2012] HCJAC 47; 2013 JC 40; 2012 SLT 855; 2012 SCCR 428; 2012 SCL 705
Bhowmick v HM Advocate [2018] HCJAC 6; 2018 SLT 95; 2018 SCCR 35
Gorrie v MacLeod [2014] HCJAC 10; 2014 SCCR 187; 2014 SCL 293; 2014 GWD 7-151
Graham v HM Advocate [2017] HCJAC 71; 2017 SCCR 497; 2017 SCL 963; 2017 GWD 30-479
Kaufman v Belgium (App no 10938/84) (1986) 50 DR 98
Lowson v HM Advocate 1943 JC 141; 1944 SLT 74
Maqsood v HM Advocate [2018] HCJAC 74; 2019 JC 45; 2019 SCCR 59; 2018 GWD 40-490
Murphy v HM Advocate [2012] HCJAC 74; 2013 JC 60; 2012 SCCR 542; 2012 SCL 855; 2012 GWD 21-426
Murtazaliyeva v Russia (36658/05) [2018] ECHR 1047; (2018) 47 BHRC 263
Osborn v Parole Board [2013] UKSC 61; [2014] 1 AC 1115; [2014] NI 154; [2013] 3 WLR 1020; [2014] 1 All ER 369; [2014] HRLR 1
Radic v HM Advocate [2014] HCJAC 76; 2014 GWD 25-480
Williamson v HM Advocate 1980 JC 22; 1978 SLT (Notes) 38
Justiciary — Procedure — Trial — Notice of special defence — Application by accused for notice of special defence of consent to be received late — Whether cause shown — Whether in interests of justice to allow late application — Criminal Procedure (Scotland) Act 1995 (cap 46), secs 70A(2), (9), 78(1), (1A), (3)
Justiciary — Procedure — Trial — Notice of special defence — Refusal by sheriff to allow notice of special defence to be lodged late — Whether breach of right to fair trial — European Convention on Human Rights and Fundamental Freedoms, Arts 6(1), (3)
Faryad Darbazi was indicted at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, for trial in the sheriff court at Glasgow charged, inter alia, with a contravention of sec 2 of the Sexual Offences (Scotland) Act 2009 (asp 9). He pled not guilty and the cause came to trial before the sheriff ([L Wood) and a jury. On 14 February 2020, the appellant was convicted of the charge. The appellant thereafter appealed against conviction to their Lordships in the High Court of Justiciary.
Section 78 of the Criminal Procedure (Scotland) Act 1995 (cap. 46) provides, inter alia, “(1) It shall not be competent for an accused to state a special defence … unless– (a) a plea of special defence … has been lodged and intimated in writing in accordance with subsection (3) …; or (b) the court, on cause shown, otherwise directs. … (3) A plea or notice is lodged and intimated in accordance with this subsection– … (b) where the case is to be tried in the sheriff court, by lodging the plea or notice with the sheriff clerk and by intimating it to the procurator fiscal … at or before the first diet.”
The appellant was charged on indictment in the sheriff court on a charge of sexual assault. Prior to the first diet, the appellant lodged a defence statement which set forth a special defence of incrimination. Following the first diet, and prior to the trial diet, the appellant engaged new representation. At the trial diet, the appellant's solicitor sought to withdraw the special defence of incrimination and to have a special defence of consent received late. It was explained that the appellant had understood that he was not obliged to state his defence until the trial itself and that it had only become apparent during recent precognition of the appellant that his defence was different to that which he had initially advanced. The sheriff allowed the incrimination to be withdrawn but refused to allow the late notice of the special defence of consent. Leave to appeal the refusal was sought and refused. The case proceeded to trial and the appellant was convicted. He appealed.
The appellant argued that the refusal to allow the special defence of consent meant that he could not adduce evidence in support of his defence and that his right to a fair trial had been breached.
Held that: (1) whatever the explanation for the late change of position had been, the test required to be where the interests of justice lay and cause would be shown if it was demonstrated that it was in the interests of justice that the application to state the defence be granted; that was so even if one factor to be weighed in the balance was the public interest in ensuring that the criminal process was not disrupted unnecessarily, and complainers and witnesses were not substantially inconvenienced (para 20); (2) the questions which the sheriff had required to ask himself were, first, whether any potential prejudice had been caused to the prosecutor or the complainer and, thereafter, whether any prejudice had been caused to the appellant in being prevented from stating his only defence to the charge and, while no prejudice to the prosecutor or the complainer had been identified, the refusal to allow the appellant to state a defence of consent meant that he was deprived of his defence and the interests of justice required that he be allowed to state that defence (paras 23, 24); (3) notwithstanding the lateness of the application a miscarriage of justice had occurred (para 27); and appeal allowed and conviction quashed.
Observed that while there may be extreme cases in which the court may refuse to allow an accused person to present a positive line of defence such extreme cases would have to be rare events in which the prosecutor or a complainer were materially prejudiced; if a trial could proceed as scheduled, without any need to undertake substantial new investigations, the balance of the interests of justice would be heavily in favour of allowing the defence to be stated and the prosecution would have the benefit of pointing out the accused's late changes of position to the jury (para 26).
Montgomery v HM Advocate 2000 JC 111 and Murphy v HM Advocate2013 JC 60applied.
The cause called before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Turnbull and Lord Pentland, for a hearing, on 3 February 2021.
Eo die, the court allowed the appeal for the reasons set forth in the opinion of the Court which was subsequently delivered by the Lord Justice General (Carloway)—
Opinion of the Court—
[1] On 14 February 2020, at the sheriff court in Glasgow, the appellant was found guilty of a charge which libelled that:
‘[O]n 17 December 2018 at Caspian Kebabs Takeaway Restaurant, … Glasgow, you … did sexually penetrate the vagina of [OS] … and did place your arms around her body, manoeuvre her into a booth and repeatedly digitally penetrate her vagina;
CONTRARY to Section 2 of the Sexual Offences (Scotland) Act 2009 [(asp 9)]’.
On 13 March 2020 the appellant was sentenced to two years' imprisonment.
[2] The appeal concerns the test which requires to be applied when determining whether to allow an accused to state a special defence in the absence of a timeous written notice of an intention to do so.
[3] Section 78(1) of the Criminal Procedure (Scotland) Act 1995 (cap 46), as applied in sexual offences to a...
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