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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> NOTE OF APPEAL AGAINST CONVICTION BY GAVIN WATSON MACDONALD AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_21 (26 May 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_21.html
Cite as: 2020 SCCR 251, [2020] ScotHC HCJAC_21, [2020] HCJAC 21, 2020 GWD 20-275, 2020 JC 244
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Turnbull
Lord Pentland
[2020] HCJAC 21
HCA/2019/546/XC
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
GAVIN WATSON MACDONALD
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: I Paterson (sol adv); Paterson Bell
Respondent: Farquharson QC AD; the Crown Agent
26 May 2020
Introduction
[1] On 5 September 2019, at the Sheriff Court in Livingston, the appellant, who was
aged 52 at the material time, was convicted of a charge which, following the jury’s verdict,
was in the following terms:
“on 28 August 2017 at ... Bathgate you did sexually assault [SD],… did lock a door to
prevent her from leaving the room, place your hand under her clothing and touch
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her breasts, make comments of a sexual nature towards her, bite her on the body,
seize her by the hair and pull her backwards onto a bed, lean on top of her, straddle
her and pin her to the bed, put your fingers in her mouth and push her head to the
side, attempt to kiss her on the mouth, pull her towards you, rub your body and
penis against her body and sexually penetrate her vagina with your fingers to her
injury; CONTRARY to sections 2 and 3 of the Sexual Offences (Scotland) Act 2009”.
The jury deleted a part of the libel which alleged that the assault had been carried out with
intent to rape. On 26 September 2019, the appellant was sentenced to 27 months
imprisonment.
[2] Leave to appeal has been granted only in respect of one ground of appeal; whether
the sheriff’s references to the complainer as a “victim” at certain parts of his charge were
such as to constitute a miscarriage of justice. However, the case raises a number of issues in
relation to the conduct of sexual offences trials in general. In particular, first, it highlights
deficiencies in the procedure for the determination of applications under section 275 of the
Criminal Procedure (Scotland) Act 1995. Secondly, it focuses sharply questions of what may
be put to a complainer in cross-examination. Thirdly, once again, it concerns what may be
said in a defence jury speech in relation to an accused’s “position” when no evidence has
been led to demonstrate what that position might be. Fourthly, the appeal concerns the
duties of the presiding judge or sheriff in controlling the proceedings, especially in relation
to unwarranted attacks upon the character of a complainer, and in formulating the charge to
the jury relative to the live issues at trial. It must be said in limine that the manner in which
this trial proceeded gives rise to real causes of concern.
Pre-trial procedure
[3] The case was a straightforward one involving a single accused and one charge of a
single sexual assault with attempt to rape. There were 14 witnesses listed; three civilian, two
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forensic scientists, a Forensic Medical Examiner and eight police officers. Notwithstanding
the nature of the case, the First Diet was “adjourned” on three occasions. The reasons for the
repeated adjournments are difficult to fathom in context of the duty to fix a trial diet. The
first FD was on 4 March 2019. This was adjourned on 25 March “to allow disclosure to take
place”. The new FD was adjourned until 21 May because the defence required to
precognosce the FME and to instruct an expert. The relative minute records that “a
section 275 Application may be lodged also”. This FD was adjourned until 17 June “to allow
the Crown to consider the previously lodged section 275 application”. Eventually, at the
fourth FD a trial diet was fixed for 2 September. The minute records that the court “allowed
an amended section 275 application to be lodged and noted the application as being
unopposed by the crown”.
[4] The section 275 application, which is dated 16 May, stated that the defence wanted to
adduce evidence that, inter alia: (a) at some time in the weeks preceding the date libelled, the
complainer was injured as a result of climbing out of a window at her flat whilst heavily
intoxicated and falling from a roof; (b) on another occasion during these weeks, the
complainer had been involved in a physical altercation with her boyfriend, namely PW,
which “could have resulted in her sustaining injuries”; and (c) at the time of the alleged
sexual assault, the complainer and the appellant had consumed cocaine together”.
[5] There is no record of the section 275 application having been judicially considered or
determined. At the trial the parties, and the sheriff, appear to have proceeded on the basis
that it had been granted.
[6] In terms of a joint minute it was agreed that, on the date libelled, the appellant had
“sexually digitally penetrated the vagina of” the complainer at the address libelled. Swabs
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of the appellant’s hands had revealed the presence of the complainer’s DNA. The appellant
lodged a special defence of consent.
The trial
The evidence
[7] At the trial, there were only five witnesses: the complainer, two of her female friends,
the FME and a police officer.
[8] The complainer was 24 years old. She was employed as an administrative assistant.
She was in a relationship with PW and had been since May 2016. PW lived on the top floor
of the house forming the locus. The appellant also lived in one of the rooms on the top floor.
The complainer stayed with PW intermittently, and used his room sometimes when he was
away working. She did not know the appellant well.
[9] According to the complainer, on the evening of 28 August, she had been out socially
with a female friend, DR, who seems to have also stayed in another room in the house along
with a male friend. The complainer and DR consumed several glasses of vodka, tequila
shots and prosecco. They returned to PW’s room, where they changed into nightwear. The
complainer was wearing a T-shirt and pants. They sat down in the room which DR
occupied. The complainer described herself as just “happy”. The company ran out of
cigarettes. The complainer was aware that the appellant had cigarettes. She went to his
room to see if she could borrow any. She was invited in by the appellant. She sat on the
edge of his bed and had a cigarette with him. There was some friendly conversation and
talk about a potential operation which the complainer might need. At one point she lifted
up her T-shirt and showed the appellant certain surgical scars on her abdomen.
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[10] The appellant got up and locked the door. He then attacked the complainer as
libelled. She had been saying “No”. He pulled her hair and bit her on the back. She ended
up lying on the bed. He inserted his fingers into her vagina. The complainer was pushing
his legs in an effort to get away, but the appellant kept going. When he stopped, the
appellant said to her, “Whatever happens in this room, stays in this room”. She said to him,
“Please don’t tell” PW, “because she felt so ashamed”. She had not consented to anything
which the appellant had done. She had been crying.
[11] The complainer returned to PW’s room and then went back down to the room where
DR and her friend were. She could not tell them what had happened to her until DR took
her back up to PW’s room. The complainer broke down and told DR that the appellant had
touched her when she had not wanted him to do so. She had previously tried to phone PW.
She had sent him a text which said that something “really bad” had happened. She then
texted some of her female friends saying, “Please someone help”. She felt sick and was in a
panic. She ran outside to PW’s car. She phoned another friend, namely EV. She drove to
EV’s house. The complainer was upset and crying. She stayed with EV for a couple of
hours and told her what had happened. She then got back into the car and went to the
police station to report the incident.
[12] The complainer was medically examined. She described herself as having bruises on
her legs, arms, thighs and knees. They had occurred during the incident. She had a bruise
to her inner thigh, which had been caused when the appellant was trying to force her legs
apart and insert his fingers into her vagina. She had a mark where she had been bitten.
Since the incident she had been suffering from anxiety and panic attacks.
[13] In cross-examination, it was put to the complainer that she had consented to the
sexual activity. It was put to her that she had initiated it. After she had returned to the
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house, she and DR had showered together. There was questioning about whether the
complainer had been wearing only a thong and a crop-top. The complainer said that her T-
shirt was of a normal length. It was put to her that she had consumed cocaine with the
appellant, It was alleged that she had brought the cocaine with her. It was she who had
locked the door when she entered the appellant’s room. This was all denied by the
complainer. It was suggested to her that the appellant had said, “You’d better go now
before we do something we will regret”. This too was denied. It was put to the complainer
that she had told DR that she had kissed someone and had some “lines” with him. This was
suggested repeatedly and denied throughout. It was put to her that there had been an
incident in the week before the incident, during which she had to be restrained after having
tried to hit PW with a mobile phone. She denied that and tried to explain that there had
been an incident of a different nature, but she was not permitted to give an account of that
episode. Throughout her cross-examination, the complainer was upset and frequently
crying. She was particularly distressed at the suggestions involving cocaine.
[14] There was reference to the complainer and the appellant having discussed an
incident, which had occurred some months previously, when the complainer had jumped
out of a window following an altercation with PW. Yet another line was about a comment
in the complainer’s Facebook profile, where she had stated “I don’t know how I always
wake up with random bruises”. She said that she was accident prone, but that the bruises
were not strange because their causes were known.
[15] EV gave evidence about the complainer’s distress and her account of the incident
afterwards. This had started when she had been woken up by text messages, one of which
said “Help” and had a crying emoji. This was at about 3.00am. At about 4.50am, the
complainer had called her and asked if she could come round. She did so. She was in “quite
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a state”. Her hair was dishevelled. She was wearing a T-shirt and Adidas shorts of knee
length. She had no shoes. She was pale and shaking. The account given to EV was in line
with the complainer’s testimony.
[16] DR described herself and the complainer as “pretty drunk”. The complainer had
been wearing a T-shirt and Adidas shorts. DR had fallen asleep. She was woken later by the
complainer banging on her door. She described the complainer as seeming “ok”. The
complainer was on her phone for a while. They had gone up to PW’s room, because the
complainer had said that she wanted to speak to her privately. The complainer’s body was
shaking. She told DR that she needed to get out of the house. She was agitated and frantic.
The complainer did not tell her what was wrong. On the way back downstairs, the
complainer had stopped her and said, “He raped me”. She had not been agitated before
speaking to PW on the phone. The complainer had told her that she had gone for a “fag and
some lines”.
[17] The FME spoke to various injuries. She said that the alleged bite mark was not
typical of a bite mark, but more like a graze, although teeth could have caused that injury.
The bruises were difficult to age, but were recent, having been caused within one or two, or
possibly three, days. There was fingertip bruising to the inner aspect of the complainer’s
thigh, consistent with someone gripping that part of the body and attempting to keep the
complainer’s legs open.
Defence speech
[18] The appellant’s law agent began by asserting to the jury that the complainer had
panicked when she thought that what she had done would be found out. She had therefore
lied about what had happened. He explained that the appellant had agreed in the joint
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minute that there had been digital penetration, which was in line with his special defence.
He then continued:
“We know she was lying and we know why. She was so worried that her boyfriend
would find out what she had done that she sought to defend herself by saying that
what did happen was without consent, the truth being she had gone to [the
appellant’s] room where she had consensual sexual contact which he had brought to
an end and she was worried that he would tell people so she made this allegation”.
[19] At other stages, the law agent repeated his assertion that the complainer had
engaged in consensual sexual behaviour and had been concerned about being found out by
her boyfriend, hence her distress. He asserted that what had happened was what she had
wanted to happen. He reminded the jury that she had not screamed, shouted or scratched
his eyes out. He then posed the question:
“Does this fit more with him saying you better go before we do something we
regret?”
[20] The law agent addressed what he suggested was the true reason for the complainer’s
distress by posing another question:
“Was she upset because she had been sexually assaulted or because through a
cocaine fuelled fog she realised that through her actions she would lose the boyfriend
she loved?”
He referred to the complainer arriving at her friend’s house in a distressed condition and
posed a further question:
“Is she upset by what has happened or whilst heavily intoxicated through drink and
drugs? Does she fear the perceived repercussions of her consensual actions?”
Under a chapter of his speech which he entitled “Drugs”, the agent said the following:
“Whilst no one will condone the use of drugs ... it pales into insignificance alongside
the serious allegations being made by [the complainer]. Some of you may have
thought during the trial ‘Well, so what if they took cocaine’ and that may be right but
it represents another example of [the complainer’s] lies. If she is prepared to lie
about that how can we trust what she says to convict beyond reasonable doubt? And
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did the use of cocaine badly impair her judgment in the aftermath of what
happened?”
Charge to the jury
[21] In a detailed charge to the jury, the sheriff said that it was important that the jury
should understand what was evidence and what was not. Questions or suggestions which
were made to witnesses were not evidence, no matter how forcefully or how often they are
put. What was said in the speeches was not evidence either. The sheriff directed the jury
that (the Crown) had to prove not only a lack of consent on the part of the complainer, but
also that there was an absence of belief on the part of the appellant that she consented. All of
those elements required to be proved by corroborated evidence.
[22] The sheriff explained that the special defence of consent had, as its only purpose, the
giving of notice to the Crown that a particular line of defence could be adopted. It did not
take away from the appellant’s “stance” that he was not guilty. The Crown had to prove the
case beyond reasonable doubt. The defence did not require to lead evidence in support of
the defence. If the jury considered that any evidence relating to the special defence raised a
reasonable doubt, an acquittal had to follow. He continued:
“And in this case, the [appellant’s] position is that, at the time of this incident, there
was accepted to be some limited sexual contact between ... those concerned and that
the complainer was a willing participant in everything which went on. In other
words, she consented, which is an absolute defence to the charge”.
The sheriff explained that his use of the word complainer was to the person who was
alleged to be the victim in the case and who had made a complaint that certain things had
happened. It was for the Crown to satisfy the jury beyond reasonable doubt that the special
defence should be rejected.
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[23] The sheriff stated that he wanted to say something “about consent and reasonable
belief and consent”. He defined consent in terms of the statute, before continuing:
“Now, what about reasonable belief of consent? Well I have to direct you that it is a
defence to the charge obviously that the complainer consented, but it’s also a defence
to the charge that even if you were satisfied that the complainer did not consent, it
would still be a defence if the accused nevertheless genuinely had a reasonable belief
that she was consenting – in other words, a belief he honestly held which was based
on some reason.”
The defence agent had said that the evidence pointed to consent to the limited sexual
activity which the appellant had admitted but, even if the complainer had not consented, the
Crown had failed to demonstrate that the appellant had no reasonable belief that she
consented. It was for the Crown to show that the appellant had no reasonable belief that she
had consented.
[24] It was at this part of the charge that the sheriff altered his description of the
complainer to that of “victim”, by saying:
“Of course, if you accepted, from the evidence, that he actually knew the victim
didn’t consent to what took place, then it follows that he must have had no
reasonable belief that she had consented. But simply having an honest belief that the
victim consented wouldn’t be enough; it must also be held on reasonable grounds.
How do you judge that? Well you look objectively at what the proven facts tell you
about the interaction between the victim and the other party and their mutual or
what understanding they would have had on that understanding about what was
happening and to decide if the accused’s belief that the victim was consenting was
reasonable, you can have regard to whether he took any steps to find out if she was
consenting and what steps these might have been”.
The sheriff then returned to describing the complainer as such or by name.
[25] Having dealt with the Crown case, the sheriff turned to the defence in saying the
following:
“And the defence position is that there was a limited sexual contact, which is
admitted, but that was ... freely consented to, if not initiated, by [the complainer] and
[the appellant] should be acquitted because any sexual activity that took place was
not a crime because of the essential element of lack of consent doesn’t feature.”
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The sheriff continued:
“And the crux of things, in the defence view, is ... the complainer’s relationship with
her boyfriend, [PW].
And the defence suggest to you that they do have another explanation for her
distress and that she had ... was worried about what her boyfriend would say if he
found out that she had initiated something sexual with [the appellant] and she was
lying to cover herself.”
This matter was expanded upon before other matters which the defence had raised were
repeated, including the suggestion that the complainer had admitted to DR that she had
been using cocaine. This indicated that the complainer had been caught out lying.
The court’s questions
[26] In advance of the hearing of the appeal, a number of questions were posed by the
court. These sought the parties’ views on the bases upon which the appellant’s law agent
had been entitled: (i) to examine the complainer on things which she had said to DR; (ii) to
elicit hearsay evidence from DR as to what the complainer had said to her; (iii) to cross
examine the complainer about cocaine use and the altercation between her and her
boyfriend; (iv) to suggest to the jury that the complainer had lied about incident; (v) to assert
to the jury that the episode had been consensual; (vi) to suggest to the jury that the
complainer had taken cocaine, was in a drug fuelled fog and that the use of cocaine had
impaired her judgment; and (vii) to suggest to the jury that her conduct fitted more with the
appellant saying you better go before we do something they would regret. The court also
enquired whether the sheriff ought to have given a direction under section 288DB(2) of the
1995 Act in light of the eliciting of evidence that the complainer did not fight the accused off
and the comments made about this in the speech.
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Submissions
Appellant
[27] In addressing the ground of appeal, the appellant contended that the references to
the complainer as a victim were crucial directions which were prejudicial to the appellant
and had caused a miscarriage of justice. It had been entirely inappropriate to refer to the
complainer as a victim. The appellant had admitted sexual conduct in terms of the joint
minute. The issue at trial was whether or not the complainer had consented or if the
appellant had had a reasonable belief that she had been consenting. In Wishart v HM
Advocate 2014 SCCR 130 (at para [7]) the court had stated that it was not appropriate to refer
[28] In answer to the questions, which had been raised by the court, the purpose of
questioning DR, about what the complainer had said to her, was to demonstrate an
inconsistency between the complainer’s evidence and what she had said to DR (1995 Act,
and the previous episode of aggression between the complainer and her boyfriend, followed
upon a successful 275 application. Although it was initially maintained that the statement
which the complainer was alleged to have made to DR was evidence that demonstrated
cocaine use, it was ultimately accepted that this was hearsay and there was no evidence of
such use. There was no basis for the agent saying to the jury that the appellant had said
“you’d better go” to the complainer. There was no basis upon which the defence agent had
been entitled to suggest to the jury that the complainer had consented. Notwithstanding the
terms of the written Case and Argument, which stated that the issues at trial were whether
or not the complainer had consented and whether the appellant had had a reasonable belief
that she had been consenting, it was accepted that the special defence ought to have been
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withdrawn and the issue confined to one of whether the Crown had proved the case
para [23]). The sheriff ought to have given a direction in terms of section 288DB(2) of the
1995 Act.
Respondent
[29] The advocate depute submitted that, although it was common to refer to the alleged
victim of a sexual assault as a complainer, the proper legal term, where such a person had
given evidence, was simply “witness”. The term “complainer”, as referring to a witness as
distinct from the procurator fiscal, had found its way into sections 274 and 275 of the 1995
Act. It was not a word which should be used prior to a conviction. As a generality, the
sheriff used the term complainer considerably more than he had mentioned the word victim.
He also referred to the complainer by name on a number of occasions. The references to
victim were temporary slips. Looking at the charge as a whole however, the use of victim is
not capable of being interpreted as indicating how the sheriff perceived the complainer’s
evidence to be. Using the term did not automatically mean that there had been a
misdirection (Hogan v HM Advocate (supra) at para [34] and Wishart v HM Advocate (supra) at
para [7] ). The sheriff’s directions did not amount to him impressing his own views of the
evidence unduly upon the jury. The term victim had been used at a point in the charge
which had dealt with a defence for which there was no evidence. The sheriff did fall into
error when dealing with the defence of consent in that he said that the appellant had a
position whereby the complainer had consented. That error was favourable to the appellant.
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[30] It was accepted that the section 275 application should have been opposed and
refused. There had been no evidence of cocaine use. The purpose of adducing the hearsay of
DR had not, contrary to the Practice Note (No 2 of 2017), been stated at the time.
[31] It had not been open to the appellant to ask the jury to conclude that a complainer
had consented when there was no evidence from either the appellant or any other source to
that effect. The defence should be restricted to asking the jury to consider whether the
Crown had proved its case (Bakhjam v HM Advocate (supra) at paras [33]-[35]). The trial
judge ought to have withdrawn the defence of consent, whilst making it clear that the jury
still had to be satisfied beyond reasonable doubt that the Crown had proved what had
occurred had been without that consent. A section 288DB(2) direction should have been
given.
Decision
“Victim”
[32] The sheriff’s charge spans 45 pages of transcript. When referring to the complainer,
the sheriff used that term 29 times. On another 11 occasions he used the complainer’s full
name. He twice referred to an “alleged victim”. It is unfortunate that on page 28 he began
to refer to the victim, although that was in a general context and not specific to the
complainer. However, on several occasions on page 31 (supra) he does refer to the
complainer as the victim. This should not have occurred, as the sheriff has recognised in his
the court, at para [7]). As in both of these cases, the court is not satisfied that this has led to
any miscarriage of justice. The sheriff did not use the word in a manner which would have
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suggested that the crimes libelled had been committed or that the complainer was in fact a
victim. It is clear from the context in which the words appear that the references to a
“victim” were lapsus linguae. It would have been clear to the jury that the task which they
had to undertake was a determination of whether the events had occurred as described by
the complainer. The appeal is accordingly refused.
Section 275 and the cross examination
[33] The court has made repeated efforts to ensure that the “rape shield” provisions of
sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 are properly adhered to
by trial courts. It has explained the import of these sections in clear terms (see eg CJM v HM
guidance on the duties of a judge to control the tone and content of cross-examination,
HM Advocate 2019 JC 81). The importance of this to the proper administration of justice
cannot be underestimated. The problem is well understood and was outlined two decades
ago in the Scottish Executive’s paper “Redressing the Balance: Cross-examination in rape
and sexual offence trials” which prompted the changes to sections 274 and 275 of the
Criminal Procedure (Scotland) Act 1995 in section 7 of the Sexual Offences (Procedure and
Evidence) (Scotland) Act 2002. Despite this, and the clear import of these sections, the courts
have continued to be criticised for failing to provide complainers in sexual offence
prosecutions with adequate protection from irrelevant, and often distressing, questioning.
This case is a further illustration of a trial court’s failure in this regard.
[34] Section 275 applications must be properly administered and determined. Once
made, they ought to be carefully considered by the Crown. If they seek the admission of
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evidence which is inadmissible at common law or under section 274, they ought normally to
be opposed. Without such opposition, in the context of an adversarial system, the court may
find it difficult to exclude the proposed evidence, which is outlined in the application, when
it is relatively ignorant, at the stage of determining the application, of the totality of evidence
which is to be adduced by the Crown at the subsequent trial. There was no opposition in
this case and, as the Advocate Depute correctly accepted, there should have been.
[35] Especially when a section 275 application is made at a First Diet (1995 Act, s 71(2A)),
as it was in this case (cf the time limit of 14 days before the trial in section 275B(1)(b), it
ought to be considered at that diet and properly determined by the court. That means that
the court must decide, first, whether the evidence sought to be admitted is admissible as
relevant at common law. Secondly, if it is admissible, the court must determine whether it is
struck at by section 274 (an attack on character, engaged in unrelated sexual or other
behaviour). Thirdly, if it is struck at, the court must consider whether it meets the test for
admission under section 275(1)(a) (specific occurrence of sexual or other behaviour or
specific facts demonstrating character or condition/predisposition) and 275(1)(b) (relevance
to proof of guilt). Fourthly, the court must make a decision on whether the probative value
of the evidence is significant and outweighs any risk of prejudice to the proper
administration of justice (s 275(1)(c)), including the protection of the complainer’s dignity
and privacy.
[36] The court is obliged, if it is admitting any evidence in terms of section 275, to state its
reasons for doing so (s 275(6)). These reasons ought to be recorded. This means that they
ought to be minuted so that the parties, and any subsequent judge or sheriff involved in the
case, can know precisely what the decision has been. There is no record of any of this
having been done in this case. That is a serious deficiency.
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[37] The section 275 application, in so far as relating to events prior to the incident
libelled in the charge, ought to have been refused. The first matter sought to be admitted
related to an allegation that the complainer had at some unspecified date fallen off a roof in
a state of intoxication. The latter part of the allegation was a gratuitous attack on the
pursuer’s character. The fall was irrelevant, since any injuries sustained as a result could not
have been classified as occurring within the unchallenged one or three days before the event
spoken to by the Forensic Medical Examiner. Any evidence of this nature would have been
inadmissible at common law. It ought to have been excluded on that basis. Allowing
evidence of this irrelevant and insulting nature into a trial of a sexual offence is a serious
failure in the administration of justice.
[38] The same considerations apply to the second matter which was sought to be
introduced. This related an altercation between the complainer and her boyfriend which
“could have resulted in her sustaining injuries”. This is vague as well as irrelevant. If this
type of allegation is to be made, there must be evidence to support a contention that the
injuries which both the complainer and the FME spoke to could have been caused in an
incident of this nature. There was no such evidence. This ought to have been objected to
and excluded.
[39] The final matter concerns the allegation that the complainer had taken cocaine
together with the appellant. It is possible that this might have been admitted if a proper
reason were given for its admission, but none is apparent from the section 275 application.
The reason given is that it is relevant to “the special defence of consent, mens rea and
credibility of the complainer”. It is said that the evidence was relevant “as it represents the
true reason for there being contact between [the appellant] and the complainer”. None of
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this, especially the reference to “mens rea” makes any sense. How the consumption of
cocaine together could have a bearing on any of these issues remains a mystery.
[40] Matters do not stop there. What was put to the complainer was that she had taken
the cocaine with her to the appellant’s flat (ie supplied illegal drugs to him). This was not
even in the section 275 application. Similar considerations apply to various other
irrelevancies adduced at the trial, such as the complainer throwing a mobile phone at her
boyfriend and the complainer showering with DR. All of this evidence ought to have been
objected to and excluded. It is most unfortunate that a complainer in a sexual offences trial
should have been subject to such questioning. It is not at all surprising that she was
distressed as a result.
The Special Defence and Consent
[41] There was no evidence in support of the special defence of consent. In these
circumstances the appellant’s law agent ought, in accordance with the normal and accepted
practice, to have withdrawn the plea in advance of addressing the jury (Lucas v HM Advocate
2009 SCCR 892, Lord Carloway, delivering the opinion of the court, at para [12]). The agent
should at least have made the position clear in his speech to the jury (ibid). He did not. On
the contrary, he maintained that the incident had involved consensual sex in the absence of
any evidence for that line. He was, of course, entitled to address the jury on the basis that
the Crown had not proved the case beyond reasonable doubt. He was free to make
submissions on credibility and reliability. He was not entitled to suggest to the jury that a
positive case of consent had been made out in the absence of any evidence to support that
case. It was improper to do so.
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[42] In these circumstances, it was for the sheriff to make the position clear to the jury; ie
that there was no evidence that the pursuer had consented to any sexual activity but that
they still required to consider: whether they accepted the complainer’s testimony as credible
and reliable; and whether her account was adequately corroborated. The sheriff’s direction
to the jury, that they required to acquit if they considered that any evidence relating to the
defence raised a reasonable doubt, was misplaced. There was no such evidence. Equally,
the sheriff’s statement that the appellant’s “position” was that “the complainer was a willing
participant in everything which went on” is a misdirection. The appellant had no “position”
para [35]) beyond the terms of the joint minute, that he had digitally penetrated the
complainer, and the fact of his not guilty plea.
[43] This matter was compounded by the sheriff directing the jury to consider whether,
even if they were satisfied that the complainer did not consent, the appellant had a
reasonable belief that she had consented. There was no evidence upon which the jury could
find that there was any belief in consent, far less a reasonable one. The directions, which
required the jury to consider reasonable belief, ought not to have been given (Maqsood v HM
Advocate 2019 SCCR 59, LJG (Carloway), delivering the opinion of the court, at paras [16],
further by the erroneous direction that there required to be corroboration of a lack of
reasonable belief (ibid).
Hearsay
[44] The evidence of what the complainer said to DR in the aftermath of the incident was
hearsay. It may have been admissible for a number of purposes, including its use as a de
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recenti statement to bolster the credibility of the complainer or as a prior inconsistent
statement designed to achieve the opposite result (1995 Act s 263(4)). If it was the latter, in
terms of the Practice Note (No 2 of 2017) Prior Statements (para 4) it would have been of
assistance if the sheriff had clarified what the purpose of the questioning was. What is clear,
in any event, is that what DR maintained the complainer had said to her could not become
evidence of fact. There was accordingly no proper basis upon which the appellant’s agent
could have addressed the jury to the effect that the complainer was engulfed in a “cocaine
fuelled fog” or “heavily intoxicated… through drugs”. There was no basis for suggesting to
the jury that “Some of you may have thought during the trial ‘Well, so what if they took
cocaine’” or that the use of cocaine had badly impaired the complainer’s judgment. In that
state of affairs, not only should the defence agent have refrained from making these baseless
allegations but also the sheriff should have either stopped the agent from doing so,
preferably in the course of his jury speech, or at least made the matter clear in his charge to
the jury; viz. that there was no evidence that the pursuer had taken any cocaine. Not only
did he not do so, he provided legitimacy for the allegation by repeating it as something for
the jury to consider when he gave them directions on the evidence.
[45] The defence law agent’s reference in his speech to the alleged remark “you better go
before we do something we regret” is in an even worse position. It was not even hearsay. It
was no more than something which was put to, and denied, by the complainer. It was not
evidence and ought not to have been used at all in the speech. It was improper to do so.
Although the sheriff did tell the jury in general terms, that suggestions made to witnesses
and the content of a jury speech did not constitute evidence, he ought specifically to have
directed the jury to ignore that part of the speech and to have explained why; viz. that there
was no evidence that such a remark had been made.
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Section 288DB
[46] Sub-sections 288DB(1) and (2) of the 1995 Act provide that, in sexual offence trials,
where evidence is given or a question asked which suggests that the sexual activity took
place without physical resistance, the judge must advise the jury that there can be good
reasons why a complainer might not resist and that an absence of resistance does not
necessarily indicate that the allegation was false. In this case evidence was elicited that the
complainer had not screamed, shouted or scratched the appellant’s eyes out. In these
circumstances the direction ought to have been given.
Conclusion
[47] This trial was conducted in a manner which flew in the face of basic rules of evidence
and procedure, not only the rape shield provisions but also the common law. It ignored a
number of principles which have been laid down and emphasised in several recent decisions
of this court. If justice is to prevail in the prosecution of sexual offences, it is imperative that
those representing parties abide by these basic rules. If they do not do so, the judge or
sheriff must intervene to remedy the matter. During her cross-examination, this complainer
was subjected to repetitive and at times irrelevant questioning. She became extremely
distressed and rightly so. The court did nothing to intervene. Were this to be repeated, the
situation in sexual offences trials would be unsustainable.