APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 103
Lord Brodie Lady Dorrian Lord Woolman	Appeal No: XC549/12   OPINION OF THE COURT   delivered by LORD BRODIE   in   NOTE OF APPEAL AGAINST CONVICTION   by   SAJJAD AFZAL   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: D Ogg, QC, AD, Mitchell; Aamer Anwar & Co, Glasgow

Respondent: Fairley, QC, advocate depute; Crown Agent

 

12 September 2013

Introduction

[1] In August 2012 the appellant stood trial at Edinburgh High Court on a charge of indecent assault and rape. The trial lasted five days. At its conclusion, the jury returned a majority verdict of guilty. On 27 September 2012, the trial judge sentenced the appellant to 7 years imprisonment.

[2] The indictment contained a single charge which, after the deletions made by the Crown at the close of its case read as follows:

"On 3 May 2010 within motor car registered number V380 NMB in the course of a journey from George Street, Edinburgh to Goose Green Crescent, Musselburgh and at 14 Goose Green Crescent, Musselburgh, you SAJJAD AFZAL did assault [the complainer], attempt to kiss her on the head and body, touch her legs, push her on the body, repeatedly kiss her on the head and body, touch her body, remove her clothing and underwear, pull her towards you and push her onto a bed, lie on top of her, penetrate her vagina with your penis and thus rape her, push her head towards you penis, penetrate her mouth with your penis, emit semen within her mouth and penetrate her anus with your penis, all to her injury".

 

 

The Trial

[3] In brief summary the salient features of what emerged from the evidence led at trial, as they appear from the trial judge's report, are as follows. In the late evening of Sunday 2 May 2010 the complainer, who was then a 20 year old Edinburgh University student, went to a nightclub in George Street, Edinburgh with some female friends. The complainer left the nightclub about 3am on 3 May 2010 intending to share a taxi home with one of her friends. However, outside the nightclub she became separated from her friend and, as a result, started to walk along George Street to look for a cash machine from which she could withdraw money to pay for a taxi home. As the complainer was walking to the cash machine she noticed two young men in front of her. One was the appellant and the other was his friend who lived with his parents at 14 Goose Green Crescent, Musselburgh. The complainer did not know either of them. The men told the complainer that they could get her a taxi and at that point a car pulled up. According to the complainer, she repeatedly told the driver of the car and the other two men that she wanted to go home but they paid no attention. The complainer described the appellant rubbing her legs and kissing her on the mouth and in the area of her chest despite her trying to push him away. After some time the car arrived in Musselburgh and drew up outside the house at 14 Goose Green Crescent. The complainer accepted the appellant's invitation to go into the house because, she explained, she thought she would be able to telephone for a taxi from there. It was in the house that there then occurred the acts specified in the indictment. At the time there was no one in the house other than the appellant, his friend and the complainer.

[4] As is explained in the note of appeal, at least by the time of trial, the only issue which was in contention was whether the complainer consented to having sex (in the various ways specified in the indictment) with the appellant. The fact that at about 4am within the property at 14 Goose Green Crescent, Musselburgh the appellant penetrated the complainer as specified in the indictment was agreed by joint minute. The appellant's position was that the complainer had met him, come home willingly with him and had sex not only with him but also with his friend, the former co-accused. The complainer's position in evidence was that she had not consented to any sexual activity with the appellant. In addressing the jury, the advocate depute confined himself to the evidence as to what had occurred in the house at 14 Goose Green Crescent. Neither the Crown in inviting the jury to convict, nor the defence, in inviting the jury to acquit, suggested that a conclusion that was open to them on the evidence was that the complainer may have consented to some of the acts of penetration but not to others. The question therefore was whether she had consented to all of the acts of penetration or to none of them. The corroboration as to the complainer's lack of consent came primarily from her distress as demonstrated to witnesses.

 

The trial judge's directions

[5] In the course of his general directions (of which no criticism is made), the trial judge directed the jury on the verdicts available to them as follows:

"Your verdict may be unanimous or by a majority, but if the verdict is to be guilty there must be at least eight of your number in favour of such a verdict. You cannot convict the accused unless there are eight of you for a guilty verdict. If you do not have eight supporting guilty, you must acquit. If your verdict is to be guilty, you could delete any part of the charge not proved to your satisfaction, but what is left must define the crime and describe how it was carried out".

 

[6] In the course of their deliberations, by way of a written question, the jury asked: "In giving our verdict, are we being asked to decide on one charge, or one of rape and three of assault. Or one of rape and one of assault?". The trial judge invited representations from the advocate depute and the solicitor advocate for the appellant. They expressly agreed on the response which he should make to the jury.

[7] When the jury came back into court, the trial judge directed them in line with that agreed position as follows:

"Having regard to the fact that what we have on this indictment is a single charge, although as you know it includes a number of allegations of criminality, so that one has obviously included in it a charge of rape and then there are various things which could amount to indecent assaults. However, as far as you are concerned, all that you are required to do is to return a single verdict, not multiple verdicts. You do not have to think about breaking down your verdict in any way. I trust that is clear.

 

What you can do of course, if you are not satisfied that particular parts of the charge have been established, then you can strike those parts out in returning your single verdict, and you just indicate that when asked. The clerk of court will ask you, if it is a guilty verdict, whether it is subject to any deletions and then you just indicate what the deletions are. So I trust that is clear, ladies and gentlemen".

 

Shortly afterwards, the jury returned a verdict of guilty, without any deletions.

 

 

Ground of appeal

[8] Leave has been granted only in respect of one ground of appeal (numbered 2). The contention advanced in that ground is that the trial judge misdirected the jury by omitting to direct them specifically that a majority of eight was required for the appellant to be convicted of each part of the charge which constituted a discrete offence. The substance of this ground is stated in the note of appeal as follows:

"It is submitted in these circumstances the Learned Trial Judge ought to have directed the jury that in order to return a verdict of guilt a number of 8 of them had to be in favour of guilt in relation to each offence, and that only in those circumstances could a verdict of guilt be returned on the whole libel. This is particularly so when the Learned Judge has not given a specific direction to the Jury in relation to how they should go about assessing each offence separately and in what circumstances the Jury were entitled to make deletions from the libel.

 

In these circumstances it is submitted that the misdirection was a material one, and as such the conviction should be quashed".

 

 

Submissions
[9] Mr Ogg, QC, on behalf of the appellant, began his submissions by acknowledging that the trial judge had adopted a standard way of charging the jury. Mr Ogg explained that he was not criticising the trial judge's directions as far as they went, but it was his submission, and at this point he acknowledged that he was entering into new territory, the judge should have gone further. The court might find this to be a "startling proposition" as he put it. Nevertheless Mr Ogg submitted that the trial judge in directing the jury as to how to reach a single verdict on a single charge which, as here, contained two or more discrete criminal offences, should specifically direct the jury that if they are to convict of these offences there must be at least eight votes in favour of conviction in respect of each discrete offence within the charge. Here, on any view, there was more than one discrete criminal offence

within the single charge on the indictment. There was the offence of indecent assault constituted by what was alleged to have occurred in the motor car, there was the offence of indecent assault constituted by what was alleged to have occurred in the house and there was the offence of rape constituted by what was alleged to have occurred in the house. Concentrating on the distinction between the two loci, it was, submitted Mr Ogg, quite conceivable that the foreman of the jury might ask for a vote on the question as to whether the appellant was guilty of the single charge and obtain the response of eight votes for guilty in circumstances where four of these votes related to what was alleged to have occurred in the car but not what was alleged to have occurred in the house and the other four related to what was alleged to have occurred in the house but not in the car. It was to be borne in mind, Mr Ogg emphasised, that the jury had not only to consider the actus reus of the various discrete offences but also the relative mens rea. In relation to mens rea, the appellant would only be guilty of indecent assault or rape if he did not honestly believe that the complainer was consenting to the relevant activity. Unless the jury were specifically directed in relation to the various component parts of a single charge, there was a risk that they might be confused as to what was sufficient for them to return a guilty verdict on the whole charge. It was not enough for the trial judge to say that the jury could make deletions. The proper approach, which should have been adopted, was to "build up" towards a guilty verdict, if that was the verdict which the jury considered to be proper on the evidence. In other words there should have been an emphasis upon what needed to be established for a finding of guilt rather than what was to be deleted because it had not been made out. Mr Ogg accepted that the point he sought to make might apply very generally and not just to charges containing allegations of a sexual nature. It would apply, for example, to a murder charge which contained, as part of the libel, an allegation of assault, as very commonly was the case. Here the jury had demonstrated that they were confused by coming back with a question. At that point it was incumbent upon the trial judge to provide them with assistance along the lines that Mr Ogg suggested. He commended the terms of a charge delivered on 20 February 2012 in the case of HMA v Steven Cahill. Initially that was a case where a total of five different offences were rolled up into one cumulative charge: contravention of section 1 of the Sexual Offences (Scotland) Act 2009, contravention of section 2 of the 2009 Act, assault, abduction and robbery. The Temporary Judge specifically directed the jury that for a finding of guilt of any crime within the single charge, there had to be at least eight of the jury voting "that he has committed that crime". That was a sound direction which Mr Ogg submitted was of the sort that should have been given in this case.

[10] The advocate depute explained that his submissions would be advanced under four heads: (1) the role of the appellate court, (2) the context of the trial that was; (3) what the trial judge had said in his charge; and (4) the law as set out in the cases of Cordiner v HM Advocate 1991 SCCR 652 and RM v HM Advocate 2012 SCCR 611. As far as the role of the appellate court was concerned, when criticism was made of a trial judge's directions, the Appeal Court should look at the directions in their context. That meant considering the charge as a whole and in the light of the evidence that the jury has heard and the approaches adopted to that evidence by both the Crown and the defence in their respective speeches to the jury. The advocate depute commended what had been said by Lord Justice General Cooper in Wither v HM Advocate 1947 JC 109 at 115 and by Lord Justice Clerk Wheatley in Gemmill v HM Advocate 1980 JC 16 at 21. Turning to the context of this particular trial, the advocate depute, who had presented the Crown case at trial, stated that in his speech he had made no mention whatsoever of the events in the car. The focus of his speech was entirely on the allegation of rape and the allegation of indecent assault by oral and anal penetration in the house. That approach is reflected by the way that the matter is dealt with when the trial judge turned to consider the rape and the non-rape elements at page 37 of his charge. What constituted the actus reus of the respective offences was largely agreed by way of joint minute. The issue was a very sharp one: the complainer said that she had consented to none of the activity whereas the appellant had said that the complainer had participated enthusiastically in all the activity. Indeed, according to the appellant, it was the complainer who had instigated sexual contact while they were still in the car. It is true that it was for the jury to be satisfied as to the requisite mens rea but the context was that, as was demonstrated by the evidence, the appellant's initial position in reply to police questioning had been that he had not had sex with the complainer. That was the context in which the issue of his belief as to the complainer having consented was to be considered. The trial judge's directions had been clear. He had explained to the

jury that they could not return a verdict of guilty unless there was at least eight of their number in favour of such a verdict. The jury's question was prefaced by: "In giving our verdict". It was a question as to the mechanics of returning a verdict. The trial judge understood that. He explained that the jury did not have to think about "breaking down your verdict". Thereafter the jury retired to the jury room for only a matter of minutes before returning to deliver their verdict. There had been no misdirection in this case. Not only had the trial judge followed generally adopted practice, he had followed the law as laid down in Cordiner and RM.  What Mr Ogg was suggesting would involve a departure from the law as authoritatively set out in Cordiner and RM. However, even if it were thought that there had been a misdirection, it did not follow that there had been a miscarriage of justice. Regard had to be had to the reality of the trial. As the trial judge had indicated at page 15 of his report, there was no issue at the trial as to whether the Crown might have proved the commission of an indecent assault but have failed to prove rape or vice versa. Effectively, it was all or nothing.

 

Discussion and Decision

[11] In a submission marked by candour, Mr Ogg accepted that what he sought to persuade the court had been a misdirection by the trial judge had not only been consistent with generally observed practice but was also supported as correct in law by the decisions of the court in Cordiner v HM Advocate supra and RM v HM Advocate supra. Startling as his proposition might be, so Mr Ogg argued, the law had to be moved on, particularly where, as here, an apparently impeccable charge had given rise to confusion in the minds of the jury.

[12] Mr Ogg's submissions seemed to us to beg two questions. First, was there anything in the trial judge's directions that might have confused a reasonably intelligent jury? Second, was there any reason to believe that this particular jury was confused? It is clear to us that both questions must be answered in the negative.

[13] Differing perhaps from the view expressed by the trial judge, we have no criticism to make of the form in which the indictment was drafted. We do not consider it to be in any way confusing. It sets out the general proposition that it is alleged that the appellant assaulted the complainer both in the course of the car journey and at the house. It goes on to specify the particular aspects of that assault which included the penetration of her vagina which constituted rape. The libel then specifies the two other penetrative acts. It is not immediately obvious how otherwise the indictment should have been drafted. While Mr Ogg was able to make a distinction as among indecent assault in the car, rape in the house and indecent assault in the house, the reality was that the Crown alleged a course of conduct on the part of the appellant, over a relatively short period of time, during which he sexually assaulted the complainer in a number of ways in two locations. What was said to have occurred in the house was much more serious than what was said to have occurred in the car and, very understandably, the former became the sole focus of the advocate depute's speech to the jury. It needs to be remembered that a judge's charge to the jury is a communication made in a particular context. That context is provided by the trial, the evidence led at that trial and the addresses which the jury have heard from the advocate depute and defence counsel. What was said by

Lord Justice General Cooper in Withers v HM Advocate supra at 115 and by Lord Justice Clerk Wheatley in Gemmill v HM Advocate supra at 21 bear repetition. In Withers Lord Justice General Cooper said this:

"Now it has been repeatedly laid down in this Court that it is illegitimate to fasten upon isolated passages of a Judge's charge in order to subject them to meticulous examination, as if the jury had not heard the evidence and the submissions of counsel as to its effect. Our attention must be directed to the general tenor and purport of the charge, with a view to determining whether anything has been said or left unsaid which might be regarded as capable of misleading the jury or diverting them from the proper exercise of their functions".

 

 

In Gemmill Lord Justice Clerk Wheatley said this:

"A judge's charge should not be scrutinised like a conveyancing document, and what has to be looked at is the effect of a direction given in the circumstances in which it was given, and what has to be considered is how that direction would be interpreted by a reasonable jury".

 

 

[14] Mr Ogg commended a form of charge which built up towards what was required in the event of conviction rather than putting the emphasis on the jury's entitlement to delete what was not proved to their satisfaction. If one looks at the whole charge in the present case, it appears to us that that is precisely what the trial judge did. The jury were told that an accused person is presumed to be innocent of any charge against him unless and until he was proved to be guilty; it was for the Crown if it could to prove the guilt of the appellant and if it failed to do so he must be acquitted (charge pages 15 to 16). The jury were told that the standard of proof was beyond reasonable doubt and that this meant that looking at the evidence in the case as a whole the jury had to be satisfied of the appellant's guilt beyond reasonable doubt before they could convict him (pages 17 to 18). The jury were told that no one can be convicted of a criminal offence on the evidence of a single witness (page 19). At pages 26 to 28 of the charge the trial judge defined the crime of rape, identified the elements within that crime and explained that the Crown required to establish each of these elements by corroborated evidence. The trial judge defined assault as aggravated by circumstances of indecency at pages 36 and 37 of the charge. At page 38 he summarised, differentiating quite clearly between rape and indecent assault, what it is the Crown must establish for a verdict of guilt. At page 40 of his charge the trial judge directed the jury of the need for a majority if their verdict was to be guilty, in these terms:

"Your verdict may be unanimous or by a majority, but if the verdict is to be guilty, there must be at least eight of your number in favour of such a verdict. You cannot convict the accused unless there are eight of you for a guilty verdict. If you do not have eight supporting guilty, you must acquit. If your verdict is to be guilty, you could delete any part of the charge not proved to your satisfaction, but what is left must define the crime and describe how it was carried out".

 

 

In our opinion it would have been clear to any reasonable jury, having heard the directions of the trial judge that what was alleged was of the nature of a sexual assault, but that because of the way in which the law regards one particular sort of sexual assault, what was alleged was the commission of two criminal offences, rape and indecent assault, and that if the appellant were to be convicted of rape then there must be at least eight votes in favour of that verdict and if he were to be convicted of indecent assault then there would have to be eight votes for that verdict.

[15] It appears to us from the terms of the question which was asked by this particular jury that they fully understood that they were being asked to return a verdict in respect of a charge which alleged separate offences and their concern was as to how, as a matter of mechanics, they should do that.

[16] Mr Ogg suggested that, having regard to the terms in which the jury were directed, they might have come to the view that the eight votes necessary for a verdict of guilty to the whole of the charge might be made up of four votes for guilty of indecent assault in the car and four votes for guilty in respect of rape and indecent assault in the house. With all respect to Mr Ogg, we regard that possibility as fanciful. Apart from anything else, the jury were directed that they could delete any part of the charge which was not proved to their satisfaction. In the scenario envisaged by Mr Ogg, discussion as to what deletions should be made would disclose that there was not a majority for a guilty verdict on any part of the charge.

[17] As was submitted by the advocate depute, a very similar question to that posed by the jury in the present case was asked by the jury during their deliberations in RM v HM Advocate. In RM, charge 1 on the indictment related to three separate sexual incidents (indecent assault and two rapes) at three different loci over a period of some seven or eight years. The jury asked this question:

"With regards to charge 1 we recognise three aspects within this charge: an assault at the garages, secondly, an assault and rape in one home, thirdly, an assault and rape in the accused's house.... Can we split the abovenoted charges or do we reach a verdict on a charge as a whole?"

 

 

The trial judge responded to the question in the following way:

"When you look at charge 1 you have to decide whether the Crown has proved beyond reasonable doubt that charge as a whole. If your view is that the Crown has proved the charge as a whole, then it is your duty to convict of the whole charge. If your view is that the Crown has not proved the charge as a whole, your duty then is to acquit. If your view is that the Crown has proved part of the charge, but not proved other parts of the charge....then it would be open to you to return a verdict of guilty under deletion of any part or parts which you do not think have been proved".

 

 

As in the present case, RM was then convicted of charge 1 by a majority without any deletions. He appealed, inter alia, on the ground that the jury had been misdirected and should have been directed to return separate verdicts on each incident in charge 1. The Appeal Court rejected the contention that there had been a misdirection and noted that the directions given by the trial judge "provided the necessary framework" for the jury's directions. The court also noted that the circumstances of the request for a direction showed that the jury appreciated that there were three separate events and that they could make deletions to reflect any difference in their conclusion in relation to these events. Thus, RM was authority for the proposition that, at least as a matter of generality, where one charge alleges a number of discrete offences, it is not necessary that the jury be asked to return a separate verdict in respect of each discrete offence. It is also of importance in that, as the advocate depute was able to demonstrate by reference to the charge given by the trial judge in that case, a direction which went no further than explaining that eight votes are required for a verdict of guilty in relation to a charge containing a number of discrete offences was not the subject of any criticism by the Appeal Court.

[18] We are accordingly of the opinion that Mr Ogg's desiderated direction was unnecessary. Moreover, as already noted, the submission that where a charge contains a number of discrete component offences it is incumbent upon the trial judge to direct the jury to address these separate elements by separate verdicts or by separate votes has not hitherto been part of our law. We have heard nothing to persuade us that it should be. The appeal is refused.