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Cite as: [2021] HCJAC 44, [2021] ScotHC HCJAC_44, 2021 SCCR 315, 2021 GWD 37-497, 2022 JC 57

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2021] HCJAC 44

HCA/2021/000123/XC

Lord Justice Clerk

Lord Pentland

Lord Matthews

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

RAYMOND NYIAM

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant: C M Mitchell QC, Findlater; Adams Whyte, Edinburgh

Respondent: Charteris QC, Solicitor General for Scotland; J Keenan (sol adv); Crown Agent

19 October 2021

Introduction

[1]

The appellant was found guilty by majority verdicts of two charges of rape against

separate complainers whilst they were intoxicated and incapable of giving or withholding

consent. In both charges the jury deleted the words "and asleep or unconscious".

[2]

The appellant had met each complainer after nights out where both complainers had

been drinking heavily. On each occasion he returned to their homes with their friends.

There was evidence that he had conversed and drunk with the complainer in charge 1 (EH);

however, he had no real prior interaction with the complainer in charge 2 (SP). In each case,

the appellant went into the complainers' bedrooms and had sexual intercourse with them.

EH's evidence was that she remembered only being very drunk, and then waking up in her

bed naked with the appellant beside her. She felt confused and disorientated, still a bit

drunk and tipsy. She went to the toilet and became aware of a substance like lubricant or

semen about her person, which made her assume she had had sex. SP described herself as

being "blackout drunk" and going to bed early. She had a memory of lying down in her bed

with her hands at her sides and someone on top of her. She woke alone, but did not

recognise the photograph in the appellant's passport which he had left at her bedside. She

put her hand to her vagina as she felt uncomfortable. She had a pulsating feeling as if

someone had penetrated her and she noticed a wet discharge. There was evidence that

people had been in the living room drinking when SP went to bed herself. The appellant

later asked to use the toilet and was directed to the ensuite in SP's room. Some time later

two of her flatmates went to check on her and knocked on the door to ask if she was ok.

They thought the appellant was also in the room. SP said that she was ok. The flatmates

were discussing the situation when the appellant came out of the room, having heard the

commotion. He was asked to leave and he did so.

[3]

It was the appellant's position that both complainers had been active and willing

participants, with mutual kissing and cuddling leading to intercourse. In connection with

EH, they were both "quite drunk" but she was able to hold a conversation, was not slurring

her words and had no difficulty walking. She invited him into her bedroom. In the

bedroom they chatted, she got into bed, so did he, they chatted, kissed and cuddled and had

consensual sex. With SP, after using the ensuite in her room, he asked her why she was in

bed and teased her for flagging. He got her a glass of water and asked if she wanted him to

put out the light and again she said yes. She was fine and lying on the bed. Before turning

out the light he asked her if she wanted him to stay there and she said yes. He lay on the

bed next to her and they cuddled and kissed. She put her hand around his neck and was

straddling him. They kissed and had sex, he having removed her underwear and jeans.

They were interrupted by someone opening the bedroom door and a flatmate asked SP if

she was ok, and she said she was fine.

[4]

The trial judge directed the jury that there was no live issue of reasonable belief in

consent. The sole ground of appeal granted leave is that this was a misdirection, on the

basis that if the jury had been entitled on the evidence to return the verdict it did, the issue

of reasonable belief would still have been a live one, upon which the jury ought to have been

directed.

Analysis and discussion

[5]

It is not easy to follow the logic of the ground of appeal. It is true that the libel which

went to the jury did assert that the complainers were intoxicated and asleep or unconscious

and incapable of giving or withholding consent, but it was clearly open to the jury on the

evidence in the case to find that they were not asleep or unconscious but that nevertheless

they were so intoxicated as to be incapable of giving or withholding consent. Such a verdict

is a perfectly competent one, as seen in Van Der Schyff v HMA [2015] HCJAC 67 . In that case

the libel of being asleep was also deleted by the jury. The court considered that on the

evidence it had been open to the jury, having not been satisfied that the complainer was

asleep at the point of the sexual activity libelled, to return a verdict of guilty based on the

more general averment that she was, at that time, incapable of giving her consent. The same

applies in the present case. There was evidence from the complainers that they had little or

no recollection of the incidents other than as narrated above; that neither of them would

willingly have had intercourse with the appellant; and that they were extremely intoxicated,

to a degree which would have entitled the jury, if unable to conclude that they were actually

asleep or unconscious, to conclude that they nevertheless did not have the capacity to give

free agreement to intercourse with the appellant. Their level of intoxication was confirmed

by others. In these circumstances, it is not surprising that leave to appeal on the basis of

unreasonable verdicts was refused.

[6]

The single ground of appeal asserts that, on the assumption that the jury were

entitled to return the verdicts in question, the issue of reasonable belief would have been a

live one, and as such the jury ought to have been directed on it. This is difficult to

understand: on the position adopted by the appellant at trial, no issue of reasonable belief

arose. The appellant's position was that each of the complainers was not only a willing, but

an active, participant. The nub of the defence was summarised thus, in the defence speech:

"Mr Nyiam told you that he recalled having consensual sex with them, that he had

their clear consent, that they were active and willing participants. ... with regards to

[SP] you'll remember him telling you that, in the course of them both being in bed at

the same time they were engaging in kissing, foreplay, and that he undressed, in

other words, he took off his jeans in her bed. ... His position to you in respect of

both complainers [EH and SP] was that at the time, at the time they were having sex,

there was no issue between them over what had happened."

[7]

None of this raised the issue of reasonable belief. As the court noted in Maqsood v

HMA 2019 JC 59 (para [19]), the issue will be live only in a limited number of situations in

which, on the evidence, although the jury might find that the complainer did not consent,

the circumstances were such that a reasonable person could nevertheless think that she was

consenting. That does not normally arise where, as here, an accused describes a situation in

which the complainer is clearly consenting and there is no room for a misunderstanding. It

was not suggested during the trial that there was room for such a misunderstanding. The

appellant said nothing in his evidence to lend any support to this theory and nor did any

other witness.

[8]

It is clear that the issue of reasonable belief does not arise merely because the

assertion is that the complainer was so intoxicated as to be unable to consent (rather than

being asleep or unconscious), since that is precisely the basis upon which Maqsood

proceeded. The court considered it to be primarily a case in which the Crown maintained

that the complainer was so intoxicated that she could not consent, whereas the appellant's

version of events was that the sexual conduct had been entirely consensual (see para 15). If

the position of the defence is that the circumstances were such, and the apparent degree of

intoxication and how it manifested itself at the time were such, as to give rise to a reasonable

belief in consent, it is for them to put that into issue in the trial. The defence did not do so.

The appellant himself gave no such evidence, and did not assert, even on an esto basis, that

there were circumstances pointing towards a reasonable belief in consent, or creating room

for misunderstanding. It was not suggested to either complainer that the circumstances

were such as to leave room for a misunderstanding on the part of the appellant. The

submissions to the jury did not suggest that there was room for such a misunderstanding or

for the jury to consider that the appellant had a reasonable belief in consent.

[9]

It is maintained in the case and argument for the appellant that in a discussion

between counsel and the bench prior to the judge's charge, the Crown pinned its colours to

the mast by stating that the Crown case hinged upon the complainers being asleep or

unconscious, and did not present the case on the basis that intoxication alone might have

rendered the complainers incapable of consent. It is further asserted that this "reflected the

submissions they had made to the jury"; and informed the defence address to the jury, and

"that is why reasonable belief was not addressed in the defence speech to the jury". Neither

of these statements is accurate. In the first place, the advocate depute's submissions to the

jury had in fact focused, almost entirely, on the issue of intoxication as preventing the

forming of free agreement to intercourse, in the case of both complainers. Secondly, whilst

the Advocate Depute at one point during the discussion did assent to the judge's

proposition that proving the complainers to be asleep or unconscious was a central part of

the Crown case, that reply was made after the defence had addressed the jury, so the content

was incapable of influencing the content of the speech which had already been given. The

real, and obvious, reason why reasonable belief was not addressed in the defence speech

was that it did not arise. It is disappointing that the appellant's case and argument contains

these inaccuracies in regard to important aspects of the appeal.

[10]

The issue of whether intoxication alone might have been of such a degree to rob the

complainers of the capacity to consent was very much a live one at the trial. It was the entire

focus of the Crown speech. Moreover, the defence speech addressed not only the issue of

sleep/unconsciousness but the issue of the degree, and effect, of intoxication alone. The

following passages from the AD's speech may be highlighted:

"(i)

Quite simply, ladies and gentlemen, if a complainer is asleep OR unconscious,

intoxicated, then she is incapable of consenting to any conduct, and if you find that to be the

case, then there can be no question of an accused having a reasonable belief that consent is

present. And, of course, that is what is alleged in this case. It is alleged by the Crown that

each complainer was so intoxicated as to be incapable of providing consent;

(ii)

Secondly, the Crown require to establish that the complainer was not consenting, in

this case, as a consequence of being so intoxicated as to be incapable of consent;

(iii)

The simple question is whether, in each case, the complainer was so intoxicated as to

be incapable of consent. The issue is not how they got into that state in the first place. ....

The issue here is completely about the level of intoxication of each complainer and whether

that led to them being incapable of consenting;

(iv)

[re complainer SP] So where do you find corroboration of her account, corroboration

that she was so intoxicated as to be incapable of consent? Effectively, ladies and gentlemen,

in this context what we are looking for is evidence that provides some support that at the

time when the penetration occurred she was so intoxicated that she could not consent;

(v)

[re complainer SP] if you take these pieces of evidence together, it provides a

compelling picture of a young woman who had gone off to bed in a highly intoxicated state

and you can reasonably infer that at the time of penetration was in no fit state to consent;

(vi)

so I suggest to you that [SP}] was raped by the accused ...and that that sexual

intercourse, that penetration occurred when she was so intoxicated as to be unable to

consent;

(vii) each of the complainers was significantly under the influence of alcohol and, of

course, in [SP's] case, drugs as well, but each was significantly ... they were each

significantly intoxicated;

(viii) a compelling picture of a course of conduct pursued by the accused to take

advantage, sexually abuse and rape two female complainers whilst they were in a position

that they were incapable of providing consent to that conduct."

[11]

It is equally clear that although the defence speech majored on whether sleep or

unconsciousness had been established, it also addressed the question of whether there was

intoxication so extreme that the complainers were incapable of consent. This can be seen in

particular in the parts of the speech dealing with (i) SP walking "with purpose and at speed"

towards the flat; and the suggestion that she was moving and acting perfectly normally; (ii)

the suggestion that SP had spoken to a flatmate to say she was alright, when he knocked on

her door during the time when the incident must have occurred; (iii) the assertion that there

was no compelling evidence that SP was too drunk to consent at the critical time; and that

people may have alcoholic amnesia about what happened the night before yet have had

capacity to consent at the relevant time; (iv) the submission re EH that no matter how drunk

she was she was able to consent. These points were made to assert that although drunk the

complainers had capacity to consent, as the appellant maintained that they had done. If the

position of the defence is that there were circumstances suggestive of reasonable belief

which might result in an acquittal then it is for the defence to put that in issue. It is not open

to an accused not to raise the issue at trial, or put it to the jury, but then seek to argue on

appeal that it was nevertheless a live issue at trial.

[12]

Returning to the discussion in which the advocate depute agreed with the judge's

proposition that "the Crown's case depends on the complainer either not being awake or

being unconscious" by replying "yes", how this came about is not clear. At the

commencement of the discussion, having heard the speeches, the trial judge seems fully to

have understood the Crown approach and been alert to this issue, the following exchange

taking place regarding charge 1:

"AD: ..what requires to be corroborated ... is the fact that the complainer was, well,

effectively, in a position where she was unconscious or asleep ...

JUDGE : Or intoxicated. Or intoxicated.

AD: Or intoxicated, sorry.

JUDGE : Yes."

[13]

That understanding seems to have continued in the context in which she first raised

the issue of reasonable belief with counsel (emphasis added):

"I just want to be absolutely clear, is that because this is a case where the Crown are

trying to prove that there was a lack of consent due to intoxication OR lack of

consciousness OR being asleep, then it's either a case of the complainer consented or

did not consent, and that reasonable belief doesn't really arise".

[14]

That is an accurate statement of the position; on the evidence led in the case, whether

lack of consent existed as a consequence of sleep, unconsciousness or intoxication alone, no

issue of reasonable belief arose. The trial judge correctly stated the position in the discussion

when stating:

"I think this is a case where reasonable belief doesn't really arise because nobody's

saying that there's a situation where she's not consenting but the accused reasonably

believes that she is."

[15]

It was submitted that the discussion, and the advocate depute's agreement with the

proposition stated by the trial judge, led the judge to direct the jury in a particular way,

reliance being placed on the passage:

"Now, in respect of both these charges, the Crown case is that the complainers were

incapable of consenting because they were intoxicated and asleep, or unconscious.

You will remember what the advocate depute said in his speech about the evidence

you could rely upon to reach that conclusion."

[16]

That does not reflect what was quite clearly the Crown position in submissions to the

jury. As ever, however, a judge's charge must be looked at as a whole. Doing so we find the

following pertinent directions:

"The complainer must be in a position to give or withhold consent. So, to have

intercourse with a person who is intoxicated and asleep or unconscious is rape. The

law says there is no free agreement if the complainer, at the time of the incident, was

incapable of consenting because of the effect of alcohol or drugs.

[17]

In addition, the passage in the charge which is criticised was followed with these

directions:

"On the other hand, the accused says in respect of both charges that, at the time of

the incident, the complainer was not so badly affected by drink or drugs that she

couldn't have ... she could not give consent, and that she did consent to sexual

intercourse. Mr Roy, in his speech, set out a series of reasons why you should have a

reasonable doubt that the complainers did not consent.

Now, intoxication can result in loss of consciousness and, clearly, in that situation,

there could be no capacity to consent. But it may only produce a lack of inhibition,

where people freely agree to do things that they would not agree to do when sober.

So, you'll have to judge that question, ladies and gentlemen, by looking objectively at

all the facts and circumstances you find proved, and forming a view on the degree of

the intoxication. If you thought the complainer was intoxicated and asleep or

unconscious, there would be no free agreement and no consent. If, however, you

thought that the complainer was still capable of making a decision, you could not

conclude that she was incapable of consent."

These directions are adequate to cover the situation and to address the real issues at the trial:

the jury would have understood that if they found the complainer to be so intoxicated as to

be incapable of making a decision, there would be no free agreement and no consent.

[18]

The situation is remarkably similar to that in Van Der Schyff. The Crown's position

during the trial had been that the complainer was asleep at the time of the assault and

therefore incapable of consenting. However, in his address to the jury, the procurator fiscal

depute modified the position by stating to the jury that they could delete the reference to the

complainer being asleep. The central issue was whether, at the material time, the

complainer had been incapable of giving her consent, for whatever reason (see para 6). The

sheriff, in directing the jury appears to have failed to appreciate the nuances of the Crown

approach, and in his charge summarised the Crown case as being that the complainer "was

asleep and therefore was incapable". In the appeal the court commented that

"It may be that the sheriff misstated the Crown case to the effect that it relied solely

on the complainer being asleep to demonstrate a lack of consent, but the jury were

entitled to proceed on the evidence which they had heard in light of the submissions

made and the sheriff's directions in law. The sheriff could have given a specific

direction that the jury could have deleted the whole element of the libel in relation to

capability of giving consent, but his general direction on that matter was sufficient".

In the present case the same applies.

[19]

There are two further matters to note, both relating to a disconnect between the case

and argument and the only ground of appeal which passed the sift, which was of course that

reasonable belief being a live issue, appropriate directions on the issue were required. First,

the case and argument seeks to argue that Maqsood was wrongly decided and that in all

cases, at least where consent is in issue, reasonable belief is a matter which inevitably arises

and requires to be corroborated. That is not a proposition which features in the grounds of

appeal, and no leave has been given to pursue the point. Senior counsel for the appellant

submitted that the issue had featured in her opinion submitted to the second sift which had

satisfied the court that there was an arguable point. In fact, that opinion does not refer to

any authorities, never mind Maqsood, and there is no suggestion that a larger court required

to be convened to address the issue. The highest the matter was stated was to assert that

sections 1(1)(a) and (b) of the Sexual Offences (Scotland) Act 1995 had to be addressed

together, and in exactly the same way. We doubt very much that in stating that an appeal

on misdirection on reasonable belief was "just arguable" the second sift judges had in mind

the argument which has now been developed. However, lest there be any dubiety about the

matter and in fairness to the appellant we proceeded to hear the argument.

[20]

The submission was that in every single case of rape in which consent is pled, an

absence of reasonable belief was an essential part of the case, always an issue, and required

to be proved by corroborated evidence. This followed from the terms of section 1(1) of the

Sexual Offences (Scotland) Act 2009 under which absence of consent and absence of

reasonable belief are both conjunctively required as elements for proof of the crime of rape.

A reasonable belief was said to be an implicit factor in a defence of consent. Reliance was

placed on Winton v HMA [2016] HCJAC 19 in which, agreeing with the trial judge that there

was no longer room to consider the question of honest belief in consent, the court stated

(para 8)

"The terms of sections 1-9 do not provide for a defence of reasonable belief in

consent, which would raise an evidential burden on the defence, rather they provide

that an absence of reasonable belief in consent is an essential part of the offence to be

proved by the Crown."

This passage was of course discussed in Graham v HMA 2017 SCCR 497 which explained

that whilst this was correct, that proof arose by inference drawn from other facts in the case,

themselves proved by corroborated evidence. Separate formal proof is not required. This

was confirmed in Maqsood which made it clear that (i) whether an accused had, or did not

have, a reasonable belief, was an inference to be drawn from proven fact, for example, as in

that case, signs of obvious intoxication (para 16); (ii) it is only intentional penetration and

lack of consent that require to be proved by corroborated evidence; (iii) although a judge

ought to continue to direct a jury that the definition of rape includes an absence of

reasonable belief, no further direction on reasonable belief is required unless that is a live

issue at trial (para 17); (iv) where an accused describes a situation in which the complainer is

clearly consenting there is no room for a misunderstanding.

[21]

In Maqsood the argument that Graham was wrongly decided and that a fuller bench

should be convened to address the matter was advanced and rejected. A similar argument

regarding Maqsood itself was rejected in RKS v HMA 2020 JC 235. The argument is neither

changed nor strengthened by reference to a case (Winton) in which (a) the point of the appeal

was whether the old defence of honest belief was still available and (b) reasonable belief had

been a live issue. In RKS the court stated (para 30)

"We do not accept the contention that reasonable belief is a live issue in every

prosecution under sec 1of the 2009 Act, regardless of the nature of the evidence led."

The court went on to point out that in Graham the court had noted (para 34) that:

"The purpose of this part of s.1 [of the 2009 Act] was not to add a new requirement

which would need to be proved by corroborated testimony, but simply to change

that part of the mental element from an absence of an honest belief to an absence of a

reasonable one.".

It added (para 35):

"Nothing which has been advanced on the appellant's behalf causes us to think that

what the court said in either of the cases of Graham or Maqsood ought to be

reconsidered.

In AA v HMA [2021] HCJAC 9 the court said that the law continues to be as stated clearly in

Maqsood paragraph 16. In the light of this consistent line of authority it is entirely clear that

the submission advanced to the effect that Maqsood was wrongly decided is untenable. There

is no justification for remitting the point to a larger court. The law on reasonable belief must

now be regarded as conclusively settled.

[22]

The case and argument also sought to present an additional argument that a

compatibility issue arises from the way in which the legislation has been interpreted,

without a compatibility minute having been lodged and without a ground of appeal

addressing the point (see section 110(3)(b) and (4) of the Criminal Procedure (Scotland) Act

1995; and the Act of Adjournal Criminal Procedure Rules 1996, Rule 40.2(4); 40.6). We have

not been presented with an explanation for this, nor has cause been shown to justify

allowing this matter to be raised in such a way and at such a late stage of proceedings. The

issue was not elaborated upon in the case and argument and was not addressed in

submissions. We decline to consider the matter.

[23]

For the reasons given above, the appeal will be refused.