Cathal Kelly v. His Majesty’s Advocate [2024] HCJAC 17

Note of appeal against conviction:- On 17 May 2023, following a trial at the High Court, the appellant was convicted of a charge of rape contrary to section 1 of the Sexual Offence (Scotland) Act 2009 in that he, while the complainer was asleep, repeatedly pulled down her lower clothing and penetrated her vagina with his fingers, and after she had awoken continued to penetrate her vagina with his fingers, and thereafter, while she was asleep and after she had awoken, touched her breasts and raped her. The charge was aggravated in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. Following the obtaining of a Criminal Justice Social Work Report the appellant was sentenced to 4 years imprisonment. A second charge similar to the one he was convicted of relating to similar conduct the month before involving the same complainer was withdrawn by the Crown at the close of the Crown case. A camera in the complainer’s living room recorded an exchange between the complainer and the appellant in the aftermath of the incident which was played to the jury and formed the corroboration in the case. The audio included the following exchange between the appellant and the complainer:- The complainer: “Don’t dare fucking wake me up if you’re ever here for another night.” The appellant: “I promise I will never do that ever again.” The complainer: “You said that last time but you fucked up before you left last time. You woke me up twice I think and then carried on fucking talking to me the last time keeping me awake so long in the night and then said you would never do that again and then last night was the first night you had the chance to prove that and you just woke me up again…” The appellant: “Maybe”. The complainer: “Why do you think I find it hard to believe what you say?” The appellant: “Ok. Ok. Ok. I see all of that.” It was the complainer’s position that the reference to “waking up” related to the appellant having sexual intercourse with her while she was asleep and the reference to “last time” was to the events of charge 1, albeit there was no direct accusation in relation to that. It was agreed by joint minute that the appellant had penetrated the complainer’s vagina with his penis on the date in question. The Crown relied on the evidence of the complainer, her account and the distress exhibited to a witness, KD, after the incident, together with the exchange recorded on the living room camera and the jury were directed along those lines. Here it was submitted on behalf of the appellant that the trial judge was wrong to direct the jury that the appellant’s responses during the argument could amount to an admission of the offence and whilst it was conceded, under reference to C.R. v H.M.A. 2022 J.C. 235 that an admission did not have to be unequivocal, in the circumstances of the present case the only reasonable inference which could be drawn was that the appellant had accepted he had awoken the complainer by talking to her. On behalf of the Crown it was submitted that whether a purported admission could amount to corroboration was fact specific but what was required was something that confirmed or fitted with the principal source of evidence and here the appellant’s comments could relate to his having woken up the complainer by penetrating her with his fingers and penis. Here the court reiterated, under reference to L.C. v H.M.A. [2022] HCJAAC 47, that whether the evidence is reasonably capable of being interpreted as amounting to an admission is a question of law and in the present case the court considered that the limit of what the appellant was saying was that he accepted waking up the complainer and that was the complaint she had made to him at the time. The court considered that for the jury to read more into the exchange would amount to speculation. By leaving it open to the jury to treat the appellant’s statements as an admission of rape and sexual assault the trial judge misdirected the jury and, whilst there was sufficient evidence in the case when the purported admission was removed, the potential significance of the appellant’s comments amounted to there being a material misdirection resulting in a miscarriage of justice.