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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 9
HCA/2020/000217/XC
Lord Justice Clerk
Lord Turnbull
Lord Pentland
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
Appeal against Conviction
by
AA
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Paterson, Sol Adv; Paterson Bell (for Ron McKenna, Defence Solicitors, Glasgow)
Respondent: A Edwards, QC AD; Crown Agent
9 February 2021
[1]
The appellant was convicted after trial of two charges of sexual assault contrary to
section 3 of the Sexual Offences (Scotland) Act 2009; first, on 11 August 2018 in respect of A,
while she was intoxicated through consumption of drugs and alcohol, by unfastening her
clothing, touching her on the vagina and attempting to cause her to touch his penis; second,
on 14 December 2018 in respect of B, while she was sleeping, and thus incapable of giving or
2
withholding consent, by entering her bed, unzipping her clothing and touching her on her
vagina. A co-accused was also convicted on a charge of raping A at the same time and place
referred to in the first charge.
[2]
There is a single ground of appeal, namely that the learned trial judge misdirected
the jury by failing to address the issue of reasonable belief that complainer A was
consenting, it being asserted that this was a live issue in relation to charge 1. The trial judge
in his report explains that in his view the matter of reasonable belief was not on the evidence
a live issue in the case of charge 1.
[3]
The ground of appeal, prepared by the solicitor advocate who conducted the trial,
asserts that certain directions relating to absence of reasonable belief as applying to the
circumstances of charge 1 were necessary, "given the content of the appellant's evidence that
this was a live issue". The case and argument, prepared by the solicitor advocate in the
appeal, who was not present at the trial, states:
"The appellant gave evidence about consensual acts initiated by the complainer. In
addition the complainer for charge 1, ... gave evidence from which it could be
inferred that the appellant could have had a reasonable belief that the complainer
was consenting. The jury would be entitled to believe some aspects of the evidence
of the appellant and some aspects of the evidence of [A].
There was evidence that [A] got into bed with the appellant, that she was cosying up
to him. There was evidence from the complainer from which it could be inferred that
the appellant could have had a reasonable belief about consent. The jury were
entitled to accept parts of the evidence and reject other parts."
[4]
There was no further specification of the evidence upon which these assertions were
based, nor any engagement with the summary of evidence provided by the trial judge. It
was suggested that the court might be assisted by a transcript of A's evidence and this was
obtained, along with a transcript of the evidence of the appellant.
3
[5]
The transcripts show, as had been narrated by the trial judge in his report, that the
assertions that the appellant "gave evidence from which it could be inferred that the
appellant could have had a reasonable belief" in consent were erroneous. The appellant's
evidence was not that there had been circumstances which he might wrongly have
interpreted or mistaken for consent, which were such as to give him a reasonable belief in
consent, but that there had been active and willing participation, and thus overt consent.
[6]
When asked, in evidence in chief, whether anything physically had happened
between them, he said yes, "she went down and grabbed my, ehm, grabbed me on my
crotch .... I touched her on her vagina, on top of her jeans." Asked whether matters
progressed from there, he said: "Yeah .... she went down, put her hand on my dick, eh,
underneath, sorry, on my penis, and then I went to go under, like, her jeans and touched her
on her private parts as well."
[7]
In cross examination the following exchange took place:
"You put your hand down her [A's] trousers and put your hand on her vagina,
didn't you? ... Yeah, with, with her consent.
And you took her hand and you placed it on your penis rather than the other way
round. - No."
Accordingly, the appellant's defence in the present case was that the complainer initiated a
sexual encounter between the two which was consensual throughout. His evidence
described what is referred to in para 17 of Maqsood v HMA 2019 JC 45, as "a situation in
which the complainer is clearly consenting and there is no room for a misunderstanding". It
was not suggested by him that he had a reasonable belief that the complainer was
consenting, nor was it suggested to the complainer that the circumstances were such as to
leave room for a misunderstanding on the part of the appellant. The case was wholly
presented on the basis, as the trial judge notes in his report, that the complainer's consent
4
was demonstrated to him not by passive submission or other circumstances, which he might
conceivably have mistaken for consent, but rather by her active and willing participation,
touching him sexually as he touched her, over a period of a couple of minutes. There is no
basis for the assertion that reasonable belief in consent was a live issue in the trial in this case
and the appeal must be refused.
[8]
It was submitted that, on the assumption that reasonable belief was a live issue in the
case, the trial judge required to direct the jury that an absence of reasonable belief in these
circumstances required to be corroborated, relying on paragraphs 31 and 34 of RKS v HMA
2020 JC 235. We recognise that, as the court in Maqsood remarked in relation to Graham v
HM Advocate 2017 SCCR 497, those two paragraphs of RKS, in isolation, are capable of being
interpreted that way. However, paragraph 35 states in terms that
"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."
[9]
In RKS the court held that the question of reasonable belief had not arisen as a live
issue, thus the question of the directions which might be needed where this was a live issue
did not arise for determination in the case, and the reference to corroboration, made per
incuriam as the first sentence of paragraph 35 clearly shows, was obiter. The law continues to
be as stated clearly in Maqsood paragraph 16:
"In Graham v HM Advocate the court (Lord Justice-General (Carloway), para 23)
explained that, although an absence of belief was an essential element of the crime of
rape, it did not require "formal proof". This latter expression was intended to mean
that it did not require to be established by corroborated evidence. Whether an
accused had, or did not have, a reasonable belief was an inference to be drawn from
proven fact (eg the use of force or, in this case, signs of obvious intoxication). The
accused's mental element did not require to be supported by corroborated testimony.
Thus far, the matter ought to have been clear. That clarity ought to have been
heightened by the model directions (para 26) that it was only intentional penetration
and lack of consent that required corroborated evidence. However, the court
recognises that the phraseology of the opinion in Graham (para 24) may have been
5
interpreted as meaning that in some cases, in which reasonable belief was a live
issue, there did require to be corroborated evidence of a lack of reasonable belief and
thus a direction on that matter. That is not what was intended. Rather, the court was
simply attempting to say that no direction on reasonable belief was required unless
that issue was live. It so happened that the specific direction in Graham, with which
the court was dealing, was one relating to corroboration."
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