Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 123

HCA/2015/001218/XC

Lord Justice Clerk

Lady Smith

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

THE APPEAL AGAINST CONVICTION

by

TAYLOR DIBA

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: J Carroll, Sol Adv; Capital Defence Lawyers

Respondent: Farquharson, AD;  the Crown Agent

25 November 2015

[1]        On 2 March 2015, at the High Court in Edinburgh, the appellant was convicted of the rape of MR at an address in Prestwick on 22 July 2013, contrary to section 1 of the Sexual Offences (Scotland) Act 2009.  On 30 March 2015, he was sentenced to five years imprisonment.   

[2]        The evidence was that the complainer, who was aged 20, lived in Prestwick.  Late on Sunday 21 July 2013, she was with friends at the Club de Mar, Ayr.  She had had a lot to drink.  She became detached from her friends.  She encountered a group of three men comprising T, N and the appellant.  The complainer and T drank, danced and kissed.  They left the club together at about 2.36am and met N and the appellant who was with another girl, whom he was kissing.  After waiting for about an hour, the complainer travelled by taxi with T and N to N’s house in Prestwick.  The appellant travelled later and alone to that house.   

[3]        The complainer and T went into N’s bedroom, where they had consensual sexual intercourse during which T had ejaculated.  Following intercourse the complainer fell asleep.  According to her evidence, she woke up to find T and the appellant speaking together at the bedroom door.  T had then left the bedroom and the appellant had approached the complainer.  The complainer told him that she was not going to have sex with him.  He nevertheless climbed on top of her, held her arms up behind her head with one arm and tried to put his penis into her vagina.  This happened quickly.  The complainer could not say if he had succeeded in penetrating her.  She had struggled and told him to get off her and to let her go.  He did not react, but continued to try to have sex with her while she was struggling.  He eventually gave up and the complainer pushed him away.  She put her dress on, grabbed her shoes and bag and left.  She was unable to find her bra before leaving.

[4]        Whilst walking home, she was seen by a friend of her brother, S, who was cycling to work.  He said that the back of her dress was pulled up.  She was unsteady on her feet and looked upset, with mascara running down her face.  A woman, M, who was driving to work, also saw the complainer walking barefoot on the road and looking as though she had been “hauled through a hedge backwards”.  M described the complainer as constantly pulling at her dress, which was not on properly, and holding her shoes in her other hand.  M had stopped her car because she had been concerned about the complainer, who appeared dazed, distressed and shocked.  

[5]        H, a friend of the complainer, who had gone with her to the nightclub, had left the club at about 2.40am.  She had gone home and texted the complainer at just after 3.00am.  At 3.50am there was a text reply that “A pulled some black guy, lol”, presumably referring to T.  There were then three missed calls from the complainer.  The following morning, there were further texts from the complainer saying that she had “nearly got raped by a black guy”.  Meantime at about 6.00am the complainer’s best friend, B, had received a phone call from the complainer.  B described the complainer as being terrified, crying and out of breath.  The complainer had told her that she had met a couple of guys and gone to a house party.  She had been with one of the boys.  He had left the room.  His friend had come in and got into the bed.  She had tried to push him off and had slapped him.  She had seized her shoes and ran.  B’s impression had been that the complainer was walking home at the time of that call, but that is not what the complainer’s evidence was.  The complainer said that she had reached home by this time.

[6]        Subsequently, at about noon the following day, there was an exchange of text messages between the complainer and T.  These included the complainer asking T “Hello, are you the guy I met last night with the seedy friend, :) ?  That was bang out of order what he done :/” And then on 24 July 2013 “I told him naw and to get off me and he still tried it :/”  T replied “Well he’s a bit crazy when he is drunk ...  I didn’t know he did dumb shit like that though ... :/”. 

[7]        The remaining evidence came from a forensic scientist, who had found the appellant’s semen on the complainer’s pants.  Penile swabs had been taken from the appellant and T.  The appellant’s penis had been swabbed some 70 hours after the incident.  The coronal sulcus, being the groove that runs around the circumference of the head of the penis, was found to have sperm with T’s DNA.   Although there were other possible explanations, the forensic scientist stated that one was that the appellant’s penis had been inside the complainer’s vagina after T had ejaculated in it.  A notice had been given, in terms of section 281(2) of the 1995 Act, that only one scientist would be called.

[8]        In due course the appellant gave evidence.  He said that he had gone into the bedroom and had been alone with the complainer once T had left.  He had not removed his trousers or underwear.  The complainer had been standing and wearing only her pants, carrying her dress or top in her hand.  He had knelt down on the floor to give the complainer oral sex.  He had moved the complainer’s pants to her left side in order to do that, but she had declined this invitation.   

[9]        The submission of the appellant was, first, that the trial judge had erred in repelling a submission, under section 97A of the 1995 Act, to the effect that there was insufficient evidence to prove the crime of rape as distinct from attempted rape.  The complainer had been unable to say whether there had been penetration.  The trial judge had misdirected the jury by saying that the evidence from the forensic scientist from the joint report had been agreed in terms of a Joint Minute.   There had been various methods established, in cross-examination of the forensic scientist, as to how T’s DNA could have been found on the appellant’s penis. 

[10]      The second ground of appeal was that the trial judge had misdirected the jury in relation to the exchange of text messages between the complainer and T.   The judge had criticised the defence for failing to object to the evidence led by the advocate depute about these text messages.  He had directed the jury to ignore them as being incompetent evidence in the case against the appellant.  The appellant maintained that the texts amounted to prior inconsistent statements.  

[11]      In response, it was submitted by the advocate depute that there had been sufficient evidence of rape once the appellant’s testimony was combined with that of the forensic scientist.  There could be no miscarriage of justice relative to the text messages, which could not be regarded as prior inconsistent statements by the complainer. 

[12]      T, it is accepted, had had consensual vaginal sex with the complainer.  The jury had heard evidence from the complainer of the appellant lying on top of her, whilst she struggled, trying to insert his penis into her.  T’s DNA was in sperm found on the appellant’s penis some hours after the incident.  This was sufficient to enable the jury to draw an inference that the appellant’s penis had been in contact with the complainer’s vagina and thus that penetration had occurred.  The first ground of appeal must therefore be rejected.

[13]      The short point about the text messages is that they had been made some considerable time after the incident had happened.  None of what had been said in them by the complainer could have been regarded as inconsistent with her testimony in court.  At no point in that testimony, nor indeed in the text messages, was there any inconsistency as to whether she had or had not been raped.  In such circumstances, where no inconsistency arose, there was no basis for leading this evidence; it being simply an exchange between two witnesses outwith the presence of the accused and occurring some considerable time after the incident.  In these circumstances the trial judge’s view that this evidence was inadmissible was correct.

[14]      In any event, there remained substantial accounts given by the witnesses in relation to the complainer’s state immediately after leaving the house.  In all the circumstances, the court does not consider that any miscarriage of justice can be said to have occurred.  This appeal therefore must be refused.