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NOTE OF APPEAL AGAINST CONVICTION BY FARYAD DARBAZI AGAINST HER MAJESTY'S ADVOCATE [2021] ScotHC HCJAC_10 (03 February 2021)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_10.html
Cite as:
2021 SLT 423,
[2021] HCJAC 10,
[2021] ScotHC HCJAC_10,
2021 JC 158,
2021 GWD 7-97
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 10
HCA/2020/192/XC
Lord Justice General
Lord Turnbull
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
FARYAD DARBAZI
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: McCall QC, Hughes; Murphy Robb & Sutherland, Glasgow
Respondent: Edwards QC AD; the Crown Agent
3 February 2021
Introduction
[1]
On 14 February 2020, at the sheriff court in Glasgow, the appellant was found guilty
of a charge which libelled that:
"on 17 December 2018 at Caspian Kebabs Takeaway Restaurant, ...Glasgow, you...
did sexually penetrate the vagina of [OS]... and did place your arms around her
body, manoeuvre her into a booth and repeatedly digitally penetrate her vagina;
2
CONTRARY to Section 2 of the Sexual Offences (Scotland) Act 2009".
On 13 March 2020 the appellant was sentenced to two years imprisonment.
[2]
The appeal concerns the test which requires to be applied when determining whether
to allow an accused to state a special defence in the absence of a timeous written notice of an
intention to do so.
The Statutory Framework
[3]
Section 78(1) of the Criminal Procedure (Scotland) Act 1995, as applied in sexual
offences to a defence of consent or the accused's belief of consent by section 78(2), provides
that:
"It shall not be competent for an accused to state a special defence... unless
(a)
A plea of special defence... has been lodged ...
(b)
The court, on cause shown, otherwise directs."
Subsection 78(3) requires the plea to be lodged at or before the First Diet. A special defence
is not required if the accused has lodged a defence statement which includes reference to the
defence (1995 Act, s 78(1A)). Such a statement is a document setting out (s 70A(9)(a)) the
nature of the accused's defence, including any particular defences upon which the accused
intends to rely. It should be lodged at least 14 days before the First Diet.
The Procedure
[4]
The appellant appeared on petition on 18 December 2018. Disclosure of the Crown
statements took place on 25 June 2019. On 15 October 2019, the appellant was indicted to a
First Diet on 14 November, when he was represented by an agent and had the benefit of an
interpreter, as he had throughout the subsequent proceedings. The defence statement
3
intimated that the appellant's position was that "if the crimes (sic) were committed, [the
appellant] was not the perpetrator". The minute of the First Diet records that there was no
special defence or section 275 application to be lodged, nor were there any defence lists of
witnesses or productions. A trial diet was fixed for 7 January 2020, but this was postponed
by joint minute until 28 January because of "difficulties" with the CCTV evidence.
[5]
On 28 January 2020, the defence agent, whose firm had represented the appellant
from the stage of his police interview, withdrew from acting. The reason for the withdrawal
was not recorded. The trial was adjourned until the following day, and then until
30 January, to allow the appellant to seek alternative representation. The court was advised
on the latter date that a new agent had been instructed and the defence would be ready for
trial on 3 February. On that date, the new agent moved the court to allow a special defence
of incrimination to be lodged late. He told the sheriff that he had been instructed to cite YB,
who was the proprietor of the restaurant specified in the libel and was an essential witness.
YB, it was said, would be able to identify the appellant and distinguish him from the
incriminee, namely AA, who had worked at the restaurant with the appellant at the relevant
time. The motion was not opposed and was granted.
[6]
The trial diet was adjourned until the afternoon. The court was told that the
complainer, who was a student teacher, was extremely anxious. At 2.00pm on 3 February
2020 the procurator fiscal depute, who had earlier opposed a further motion to adjourn until
6 February, told the sheriff that not only would YB attend court for precognition by both
parties on the following day, but the incriminee, namely AA, would also do so. In these
circumstances, the opposition to the adjournment was withdrawn. Throughout the
discussions with the court, it had been accepted by the defence agent that the live issue was
not what had occurred but who the perpetrator had been. The agent stated that "This case is
4
all about identification and all ancillary matters can be agreed". The complainer was told
about this.
[7]
When YB and AA did attend court on 4 February 2020, they both provided
statements which incriminated the appellant. The court was informed that it was only at
this stage that a formal precognition of the appellant was taken. Contrary to what the
defence agent had told the court and had been communicated to the complainer, the
appellant's account accepted that he had been the member of staff who had been involved
with the complainer (as recorded on the restaurant's CCTV system), but contended that she
had consented to the sexual act libelled. Given what he had earlier told the court and what
had been communicated to the complainer, the second agent felt obliged to withdraw from
acting.
[8]
On 6 February, a new (third) agent appeared for the appellant. He had been
instructed to withdraw the incrimination and to lodge instead a special defence of consent.
The case was adjourned until the following day to allow him to take full instructions; it
being intimated that the new special defence may require to be tendered. Bail was
withdrawn because of the shifting nature of the appellant's defence and its disruptive effect
on the business of the court. The agent was ex proprio motu appointed as the appellant's
solicitor in terms of section 288D of the 1995 Act, notwithstanding that he was already acting
as agent.
[9]
On 7 February, the incrimination was withdrawn. The argument then focused on
whether the new special defence of consent should be lodged, although late. The defence
agent explained that, when the appellant had originally been interviewed by the police, he
had been told by his agent that he need not state his position until the trial. The appellant
had taken this literally and had not disclosed the true nature of his defence until
5
precognosed. His instructions to incriminate his fellow worker had been given in a panic.
The PFD opposed the motion to allow the defence to be stated on the basis that the appellant
had continually attempted to frustrate and delay the course of justice (Murphy v HM
[2014] HCJAC 76 at paras [22] and [23]).
[10]
The sheriff refused to allow the special defence of consent to be "received though
late". He held that no cause had been shown to allow this second, contradictory defence
late. The sheriff reasoned that the appellant had deliberately and repeatedly failed to
comply with his statutory obligation by choosing not to disclose, and then to change, his
special defence. The appellant had claimed to have misled his first agent. He then blamed
an innocent person for the offence. After that allegation had been rebutted, he had finally
claimed for the first time that the complainer had consented.
The Trial
[11]
On 11 February 2020 the trial called before a different sheriff. The appellant was
represented by counsel. A compatibility issue minute was tendered. This challenged the
first sheriff's decision to refuse to allow the late special defence of consent to be lodged.
Although there is no minute of 10 February with the papers, it also challenges a decision of
the sheriff on that date to refuse leave to appeal against that refusal. At the core of the
compatibility issue was a contention that the refusal to allow the special defence of consent
meant that the appellant was prevented from properly presenting his defence; contrary to
Article 6 of the European Convention. The minute requested the sheriff to allow the special
defence to be received or to desert the trial pro loco et tempore. The sheriff refused to allow
the compatibility minute to be received. There is no minute recording that he considered the
6
substance of the compatibility minute or, despite the terms of his report, the merits of
lodging the new special defence. The handwritten record with the minutes indicates that the
sheriff did not consider it appropriate in effect to review the earlier decision of a fellow
sheriff, which is what the compatibility minute was designed to achieve.
[12]
The trial eventually proceeded on 12 February 2020. According to the sheriff, the
CCTV images showed the complainer in a clearly intoxicated state. She had been in the
front part of the takeaway but was guided to a booth at the back of the premises by the
appellant. A brief episode of sexual activity occurred. The complainer returned to the front
of the restaurant and then left the premises. She joined friends in a nearby bar. After a
while, she became distressed and told her friends of what had taken place. The police were
called. The sheriff provided no other narrative of the evidence at trial.
[13]
The court viewed the CCTV images which are as described by the sheriff. They
show the complainer in an apparently intoxicated state, although not one that substantially
hindered her ability to order her food, pay for it, speak on her mobile, sit down in the booth
and later leave the premises. In the absence of a report on the evidence from the sheriff, the
parties produced a narrative of the complainer's testimony. The complainer spoke to
drinking with friends since noon and ultimately ending up at the Brazenhead in Cathcart
Road and then at Nice N Sleazy in Sauchiehall Street at about 9.00 or 10.00pm. She was
drunk. Her memory of events in the restaurant was sporadic, but she did speak to the
penetration libelled. She could not recall what happened thereafter until she re-joined her
friends in Nice N Sleazy. She had recalled what had occurred when she re-joined her
friends and the police were called. Some of the police officers who spoke to her did not
consider her to have been drunk; others said the opposite. The former incriminee described
her as not 100% sober but not so drunk that she did not know what she was doing.
7
[14]
The appellant did not testify.
[15]
The sheriff gave the jury standard directions on credibility and reliability, the
presumption of innocence, burden and standard of proof and corroboration. He defined
sexual assault, including a requirement of lack of consent. He directed the jury on whether
the complainer was so intoxicated that she could not have consented. He went on to deal
with whether the appellant might have had a reasonable belief that the complainer was
consenting.
Submissions
Appellant
[16]
The appellant maintained that the refusal to allow the special defence of consent to
be lodged meant that the appellant could not adduce evidence in support of his defence.
The sheriff had erred in finding that no cause had been shown to allow the late lodging. The
appellant had explained why he had not told his agents about what had occurred. The
allowance of the defence would not have occasioned any delay. No "special" cause was
needed. It was the latter test which, as applied to late applications under section 275 of the
1995 Act, was designed to ensure that sensitive and stressful proceedings were not
disrupted (HM Advocate v G [2019] HCJ 71 at para [28]) or that trials were not interrupted by
the need to debate objections (Bhowmick v HM Advocate 2018 SLT 95 at para [26]). The
purpose of the special defence was just to give notice of the line to the prosecution (see, on
defence statements, Barclay v HM Advocate 2013 JC 40 at para [20]). The remedy for late
lodging was an adjournment and the penalty was the Crown's ability to cross-examine on
the point (Lowson v HM Advocate 1943 JC 141; Williamson v HM Advocate 1980 JC 22). A
failure on the appellant's part did not mean that cause had not been shown. Part of the
8
cause may be the significance of the matter to the proceedings (HM Advocate v Montgomery
2000 JC 111 at 121). Cause would be shown if the allowance of the late defence had been in
the interests of justice (Murphy v HM Advocate 2013 JC 60 at paras [33] and [34]). The
appellant had a defence to advance and it ought to have been put to the jury.
[17]
The appellant's right to a fair trial, in terms of what was described as the separate
jurisdiction of the European Court, had been breached; specifically the right to examine
witnesses against him and to secure the attendance of witnesses on his behalf (Article
6(3)(d)). The decisions of the sheriffs had prevented the appellant from giving or adducing
evidence (Murtazaliyeva v Russia, 18 December 2018, App 36658/05 at para 158).
Respondent
[18]
The Crown accepted that there were difficulties with the decision to refuse to allow
the special defence of consent to be received. It could nevertheless be said that, given the
procedural history, to allow an extreme change of position at such a late stage would not
have been in the interests of justice (Murphy v HM Advocate (supra)). The right to a fair trial
involved observance of the principle of equality of arms under which an accused must have
a reasonable opportunity to present his defence under conditions which did not put him at a
disadvantage (Kaufman v Belgium 50 DR 98 at 115). The appellant had been afforded such an
opportunity.
Decision
[19]
The question for the court is whether the decision to refuse to allow the appellant to
state a defence of consent amounted to a miscarriage of justice. The statutory provision
(1995 Act, s 78(1)(b)) allows such a defence to be stated, in the absence of a special defence
9
having been lodged, if "on cause shown" the court so directs. The appellant maintained that
no special defence had been lodged timeously because he had misinterpreted the advice
which he had been given at the stage of the police interview. This seems highly improbable,
but that is what was advanced. That explanation ceased to apply when the appellant
tendered the special defence of incrimination. That must have been done on instructions,
even although, unfortunately, no precognition setting out the then nature of the appellant's
defence appears to have been recorded. The appellant accepted that the defence of
incrimination was false. He attempted to excuse that on the basis of panic. This too seems
an improbable explanation. The sheriff held that no "cause" existed. That cannot be right.
An explanation was tendered. The sheriff must, presumably, have rejected the explanations
which were advanced as either implausible or insufficient.
[20]
Even if the excuses were false or flimsy, the reality which faced the sheriff at the
adjourned diet of trial on 6 February 2020 was that the appellant was advancing a radical
change in position and seeking leave to lead evidence showing or tending to show that the
complainer had consented to what had occurred in the restaurant. Ultimately, whatever the
explanation for the late change of position might be, the test must be where the interests of
justice lie (Montgomery v HM Advocate 2000 JC 111, LJG (Rodger), delivering the opinion of
the court, at 121). No matter how careless, or even deliberate, an accused's actions may have
been in failing to lodge the appropriate special defence timeously, cause is shown if it is
demonstrated that it is in the interests of justice that the application to state the defence be
granted (Murphy v HM Advocate 2013 JC 60, LJC (Carloway), delivering the opinion of the
court, at para [33]). This is so even if one factor to be placed in the balance is the public
interest in ensuring that, in general and in the particular case, the criminal process is not
disrupted unnecessarily (ibid). Another factor will be any substantial inconvenience to the
10
complainer or any witness, but the weight to be attributed to these elements may not be high
when compared to the impact of excluding an accused's only defence.
[21]
The salutary words of the Lord Justice General (Normand) in Lowson v HM Advocate
1943 JC 141 (at 145), about the function of rules which are designed to protect the position of
the prosecutor, bear repetition:
"The due observance of them is a valuable safeguard against the introduction of
evidence which the prosecutor could have no means of meeting, and the relaxation
of the rules prescribed by the section might lead to grave abuses. But ... these rules,
being conceived in the interests of the prosecution, may competently, and should, be
waived where the interests of justice are better served by waiving them than by
insisting on them."
[22]
What then fell to be placed in the balance? There was no suggestion that, had the
appellant been allowed to state the new defence, the trial would have to have been
postponed or adjourned. As it happened, it did not take place in any event until almost a
week later. It was not suggested that any further inquiries were required or that further
witnesses or productions would be needed. No doubt the complainer would have had to be
told of, and asked about, the issue of consent. That might well have annoyed and/or
distressed her, but, given her position at trial, her answer to any inquiry would have been
relatively succinct and would not have prompted any further investigations.
[23]
It is readily understandable that the sheriff would have been concerned, if not
irritated, with the accused's changes of position. Nevertheless, this sometimes happens.
There is no legal bar against an accused changing position in advance of the trial diet. Many
accused do so; sometimes on more than one occasion. That is catered for in the statutory
provisions governing both special defences and defence statements; even if there was no
attempt to follow the latter in this case. The question which the sheriff had to ask himself
was one which addressed any potential prejudice to the prosecutor or the complainer in the
11
trial process as a result of the changes in position. So far as identifiable, no such prejudice
was identified. The sheriff simply found that no cause had been shown. In so doing he does
not appear to have addressed the critical factor of the interests of justice. He seems to have
considered "cause" simply in the sense of whether a good reason for failing to lodge a
timeous special defence had been proffered. That was an error.
[24]
The next question which the sheriff required to ask was one directed towards the
prejudice which might be caused to the appellant in being prevented from stating what he
was now maintaining was his defence to the charge. The appellant was no longer
maintaining that he had not been involved in whatever had occurred with the complainer in
the restaurant. To that extent, the issue at trial was narrowed, from one of whether it had
been the appellant who had been involved in the events, to one of whether a crime had been
committed. The refusal to allow the appellant to state a defence of consent meant, put
bluntly, that he was deprived of his defence. That is a very serious matter indeed. In the
circumstances of the appellant's position, the interests of justice required that he be allowed
to state that defence.
[25]
Just what the trial was supposed to be about, after the refusal to allow consent to be
addressed, is unclear. If the appellant was not able to adduce evidence of consent, or a
reasonable belief in consent, what were the issues for the jury? They should certainly not
have been about the two matters upon which the sheriff specifically elected to direct the
jury. They could not have been whether the complainer was so intoxicated that she could
not consent. That was not what the Crown had libelled (cf Maqsood v HM Advocate 2019 JC
45). A libel of sexual assault on a complainer who is incapable of giving consent because of
intoxication is materially different from what was alleged in the appellant's case. The issues
could not have been about whether the appellant reasonably believed that the complainer
12
was consenting, given that he had not testified to that effect and was prohibited from raising
that issue by the refusal to allow the defence to be stated. It is surprising that the appeal
cases, which have been decided over recent years on this very point (eg Maqsood v HM
Advocate (supra), LJG (Carloway), delivering the opinion of the court, at paras [16] and [17],
and citing Graham v HM Advocate 2017 SCCR 497 at para 23), appear to have been
overlooked by the trial sheriff.
[26]
There may be extreme cases, notably those which would involve a postponement of a
trial, in which the court may refuse to allow an accused to present a positive line of defence
because he has manifestly, or perhaps deliberately, refused to comply with the procedural
rules for doing so. These rules are laid down in statute. These extreme cases would have to
be rare events in which the prosecutor and/or the complainer are seen to be materially
prejudiced by that postponement. If, on the other hand, the trial can proceed as scheduled,
without any need to undertake substantial new investigations, the balance, so far as the
interests of justice are concerned, must be weighted heavily in favour of allowing the
defence to be stated, especially if it is the only defence; provided that the trial can then
proceed. The prosecution will then have the advantage of pointing out the accused's late
changes of position to the jury and, possibly, cross-examining him on that basis (eg
Williamson v HM Advocate 1980 JC 22).
[27]
The court is satisfied that, notwithstanding the lateness of the application to allow
the appellant to state his defence, the refusal to allow him to do so amounted to a
miscarriage of justice. In reaching that determination, it is not necessary to have recourse to
Article 6 of the European Convention. The Convention does not form a separate code which
is applicable, independent of domestic principles of fairness. Rather, it permeates the whole
system (Gorrie v MacLeod 2014 SCCR 187, LJC (Carloway), delivering the opinion of the
13
court, at para [13] and citing Osborn v The Parole Board [2014] 1 AC 1115, Lord Reed at
para 55). The right of an accused to be able to present his defence, by testifying and/or by
calling witnesses, has long been deeply ingrained in Scots criminal procedure. It constitutes
more than sufficient compliance with Article 6, including Articles 6(3)(c) and (d), of the
Convention. No compatibility issue arises.
[28]
The court will allow the appeal and quash the conviction.
