Appellant: Duguid, QC, Toner; Paterson Bell

Respondent: A Miller, AD; the Crown Agent

11 December 2012

[1] As regards Charges 1(a) and (b) on the indictment the central issue in this appeal is whether the trial judge was justified in suggesting to the jury that a possible construction of the evidence was that there might be available self-contained corroborated evidence to the effect that the complainer was penetrated while asleep and thus unable to consent to the act of penetration.

[2] As the trial judge himself tells us in his Report (para [47]) the complainer's evidence was "not always easy to follow" and it appears that numerous parts of it were, in fact, almost inaudible. At all events, in addition to reading the judge's detailed Report we have had the advantage, not enjoyed by him, of reading a transcript, not only of the complainer's evidence, but also of that of the appellant, being the second of the two witnesses from whom, it was thought, the corroborated evidence in question might have been given.

[3] In the result, we regret to say that we are unable to agree that, fairly read, the evidence was open to the construction left open by the trial judge. We do not go through it in detail and it suffices to say that, while the jury is undoubtedly entitled to draw inferences from the evidence, such inferences must have a reasonably unambiguous foundation. That, in our view, was not the position here.

[4] This, unfortunately, has a knock-on effect as regards Charge 2 since, at least on the issue of the appellant's state of mind, the trial judge directed the jury that corroboration was only available via the doctrine of "mutual corroboration" which, as events turned out, can only have come from the evidence led on Charge 1. It is clear, therefore, that the construction of that evidence left open to the jury, as described above, might very well have affected their deliberations on Charge 2 also and this was, indeed, accepted by the advocate depute in the course of his submissions.

[5] In the result, with the third ground of appeal being rendered superfluous, we shall quash the convictions on Charges 1(a), 1(b) and 2 and, as invited by counsel for the appellant, we shall substitute on Charges 1(b) and 2 convictions under section 28 of the Sexual Offences (Scotland) Act 2009.

DL