Steven Burzala V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Kingarth,Lord Macfadyen,Lord Marnoch |
| Neutral Citation | [2007] HCJAC67 |
| Court | High Court of Justiciary |
| Docket Number | XC200/03 |
| Date | 23 November 2007 |
| Published date | 23 November 2007 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Macfadyen Lord Kingarth Lord Marnoch |
[2007] HCJAC67 XC200/03 |
| OPINION OF THE COURT delivered by LORD MACFADYEN in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by STEVEN BURZALA Appellant; against HER MAJESTY'S ADVOCATE Respondent. |
Act: Gilfedder, Taylor, Solicitor Advocates; Gilfedder & McInnes
Alt: Beckett Q.C., A.D.; Crown Agent
23 November 2007
Introduction
[1] The appellant, Steven Burzala, was indicted in the High Court of Justiciary at Edinburgh on a charge of rape. The terms of the libel were as follows:
"on 19 May 2001 at Lady Walk between Newbattle Road and Easthouses Road, both Dalkeith, Midlothian you did assault [LLD, hereinafter referred to as "the complainer"] ... repeatedly place your hand under her clothing, seize hold of her, repeatedly kiss her face, restrain her, forcibly remove her clothing, rub your private member between her legs, lie on top of her, force her legs apart and did repeatedly rape her all to her injury".
In his defence he pleaded consent. After trial he was on 6 February 2002 convicted by the unanimous verdict of the jury under deletion from the libel of the words "repeatedly" (before "place"), "forcibly remove her clothing", "force her legs apart", "repeatedly" (before "rape") and "all to her injury". The appellant was sentenced to seven years imprisonment.
[2] The appellant appealed against conviction and sentence. His Note of Appeal was originally lodged on 25 June 2002. Leave to appeal was granted on 26 November 2002. Thereafter the procedural history of the appeal was complicated and protracted. Various additional grounds of appeal were tendered. Eventually, by interlocutor dated 18 September 2007 this court directed the appellant to lodge consolidated grounds of appeal. They were lodged on 26 September 2007 and form document 1(f) of the appeal papers. Reference in this Opinion to the grounds of appeal is to those consolidated grounds.
[3] The consolidated grounds of appeal against conviction are formulated under three headings, namely (1) defective representation, (2) additional evidence and (3) insufficiency of evidence/misdirection. The submissions in support of the grounds relating to insufficiency of evidence and misdirection were made on the appellant's behalf by Mr Taylor. Thereafter, the submissions in support of the grounds relating to defective representation and additional evidence were made by Mr Gilfedder.
Circumstances of the case
[4] Although it will be necessary in due course to examine some of the circumstances of the case in more detail, it is convenient at this stage to set out an outline narrative in order that the submissions made may be seen in context.
[5] At the material time the complainer was 19 years of age. She had, between three and four weeks earlier, given birth to a child. The father of the child was Paul Burzala, a nephew of the appellant. Although the complainer and Paul Burzala did not live together, their relationship was a continuing one. On the date mentioned in the libel, the complainer, with Paul's encouragement, went out for the evening for the first time since the birth of the child. She was accompanied by her friend, Nicola Miller. They went to a public house or club in Dalkeith called the Peppermint Park. In the public house the complainer encountered the appellant. He was known to her, though not well, as Paul's uncle. He was at that time 40 years of age. In the course of the evening they chatted and danced together. The question of the extent to which there was kissing and other familiarity between them is at the centre of aspects of the appellant's case, and we shall therefore return to that in due course.
[6] Eventually, as a result evidently of the alcohol which she had consumed, the complainer vomited in the public house. That led to her being ejected from the premises. The appellant also left the premises, and accompanied the complainer as she set off to walk to her mother's home in Easthouses. After some time they turned off the road onto a narrow unlit path. After they had gone some distance down the path, walking in single file, the appellant put his hands on the complainer from behind and turned her round to face him. According to the complainer, she froze. The appellant began to take her trousers down, and placed his private member between her legs. The complainer fell to the ground and, despite her telling the appellant to stop, sexual intercourse took place. The complainer then ran to her parents' house. When she arrived there, she was in a state of extreme distress. In answer to questions from her mother, she said that the appellant had raped her.
Sufficiency of evidence; misdirection
(a) Submissions for the appellant
[7] In opening his submissions under this ground of appeal, Mr Taylor drew our attention to the fact that the trial in the present case concluded in February 2002, prior to the decision in Lord Advocate's Reference No. 1 of 2001 2002 SCCR 435 (which was issued on 22 March 2002), in which it was held that the actus reus of rape was constituted by sexual intercourse without the woman's consent. The trial thus proceeded on the view, until then generally accepted, that the actus reus of rape required proof that such force had been used as to overcome the will of the complainer. The question of the sufficiency of the evidence against the appellant had to be judged in the first instance, it was submitted, by reference to the law as it was understood before the decision in Lord Advocate's Reference No. 1 of 2001. If there was insufficient evidence to entitle the jury to conclude that the complainer's will had been overcome by force used by the appellant, the submission made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 that there was no case for the appellant to answer was well founded at the time it was made, and should have been sustained. That was the point focused in paragraph (b) of ground of appeal 3. Conversely, it was accepted that if there was sufficient evidence to entitle the jury to conclude that the complainer's will had been overcome by force it followed that the submission under section 97 was rightly rejected and ground of appeal 3(b) failed.
[8] Mr Taylor submitted that, on any view of the evidence, there was very little force involved in what had taken place. The trial judge had made that point to the jury at page 16 of his charge. There was no question of threats of force. The focus of the submission was on the sufficiency of the evidence given by the complainer herself. At page 35 of the transcript of her evidence the complainer said that she felt uncomfortable when the appellant started telling her how sexy she looked. He asked for a kiss and she said no, and kept walking (page 36). Having said that the appellant raped her (page 36), the complainer continued by explaining, "We were just walking and he stopped. ... He stopped me and I stopped." Asked how he stopped her, she said, "Just with his hands. ... (page 37) With his hands, just pulled and turned round. ... I was scared. ... Because of the things he was saying and the way ... the closeness that he was standing. ... (page 38) He was just standing that close. ... I didn't ken what to do. I froze still". Having said in reply to a direct question that she did not want him to kiss her, the complainer continued, "then he started unzipping my trousers. I didn't ken what to do. My dad had always says to us, me and my two older sisters, if anything ever happened, don't panic because it makes him ... can make him worse." When asked about how her trousers came to be down, she repeated that she was frozen (page 39). She then explained that she fell because of the path and her trousers being down. She fell on nettles and, in moving off them, ended up on her back (page 40). She went on (page 41) to give an account of intercourse taking place, and (page 42) of the appellant at an earlier stage masturbating between her legs. At that stage, she said, "He had his hands around me. ... He had one hand round my back. ... I was frozen and I couldn't move". In these passages, Mr Taylor submitted, there was no suggestion of any act of violence or aggression. There was no question of the appellant having forced the complainer to the ground. More was required than the force inherent in achieving penetration. The complainer's evidence was insufficient to entitle the jury to conclude that the requirement of the law, as then understood, that it be proved that the woman's will had been overcome by force, had been satisfied in the present case. Nor was it sufficient to entitle the jury to conclude that the appellant was aware that the complainer did not consent to intercourse, or was reckless as to whether she consented, and thus had the necessary mens rea of rape. The submission under section 97 had therefore been wrongly rejected, and ground of appeal 3(b) should be sustained.
(b) Submissions for the Crown
[9] The Advocate depute submitted that there was at the close of the Crown case sufficient evidence of forcible rape, and that the submission under section 97 had therefore been correctly rejected. The sufficiency of evidence was to be found not in the complainer's evidence alone, but by looking at that evidence in the context of the other circumstances disclosed in the Crown case. That included the evidence of the appellant's police interview. The case was a circumstantial one. It followed, first, that it was necessary to look at the evidence as a whole; each piece of circumstantial evidence need not be incriminating in itself; what mattered was the concurrence of testimony; and, secondly, since circumstantial evidence was by its nature open to more than one interpretation, it was for the trial court, in this case the jury, to decide which interpretation to adopt (Megrahi v H. M. Advocate 2002 JC 99 at paragraph 32).
[10] Under reference to various...
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