Clark Thomson v. His Majesty’s Advocate [2024] HCJAC 30

Note of appeal against conviction:- On 21 July 2023, following a trial at Paisley High Court involving former domestic partners, the appellant was found guilty by the jury of 6 charges:- (1) charge 2 - assault to injury and danger to life of GS whilst she was pregnant; (2) charge 3 - assault to severe injury, permanent disfigurement and permanent impairment of GS whilst she was holding a baby; (3) charge 4 – indecent assault of GS; (4) charge 5 – repeated common law rapes of GS; (5) charge 7 – repeated rapes of IH contrary to section 1 of the Sexual Offences (Scotland) Act 2009; and (6) charge 11 - repeated rapes of FY contrary to section 1 of the Sexual Offences (Scotland) Act 2009. During the trial the Crown withdrew the libel in charges 1, 6, 8 and 10 .At the close of the Crown case the appellant pled guilty to charge 9, a charge of assault by pushing CG onto a bed in 2015. The appellant appealed against his conviction on two grounds:- (1) whether the trial judge failed to give appropriate directions on the appellant having an honest or reasonable belief in the complainers’ consent to sexual intercourse; and (2) whether the conduct of the Advocate depute deprived the appellant of a fair trial. The court also went on to consider wider issues in relation to the scope of questioning of complainers in rape cases and the length of time spent examining witnesses on peripheral issues irrelevant to the principal charges. It was submitted on behalf of the appellant that the trial judge failed to give correct directions on whether the appellant may have had a reasonable belief that the complainers consented which was an essential element of rape respectively at common law and in statute and it was for Crown to prove the absence of an honest or reasonable belief where it was a live issue in evidence, regardless of whether it was stated in a special defence or spoken to by the accused. It was further submitted that the cross-examination of the appellant by the Advocate depute amounted to character assassination and breached the terms of section 266 of the 1995 Act including offering his own opinion of the appellant’s character and submitting to the jury in his speech “…or maybe you might think that the angry, possessive, violent, jealous, paranoid [accused] does respect a woman’s right to say no.” It was submitted that as a consequence of the Advocate depute’s approach the appellant had “zoned out” and was unable to give his best evidence. It was submitted that the Advocate depute’s conduct was so gross, persistent, prejudicial and irremediable that the court was obliged to quash the conviction. On behalf of the Crown it was submitted that the defence of honest or reasonable belief had not been raised on the evidence and there was no requirement for the trial judge to direct the jury on it. The evidence disclosed that the complainers’ position was that they had said words to the effect of “not tonight” or “no, I’m tired”, but the appellant had gone ahead with having sexual intercourse with them anyway whereas the appellant’s position was he had always desisted when the complainers protested that they were tired and every time they had sexual intercourse the complainers were active and willing participants. It was further submitted that there had been no breach of section 266 with the conduct complained of disclosing no departure from proper practice and, in any event, no objection had been taken and even if there was such a departure it was insufficient to give rise to a miscarriage of justice. In addition, the trial judge reported that in his view there was no impropriety in the Advocate depute’s cross or his speech and the views of the trial judge were of significant weight. Here the court refused the appeal. In relation to the first ground of appeal the court observed that the evidence of the appellant was in stark contrast to that of the complainers and the jury had to decide which version of events to accept as part of the exercise of determining whether they were satisfied beyond reasonable doubt of the appellant’s guilt. The court reiterated what was said in Maqsood v HMA 2019 JC 45 that the trial judge was correct to direct the jury that no issue of honest or reasonable belief arose. The court also observed that there was a further procedural basis upon which the first ground of appeal was bound to fail and that was in relation to the special defences which had been lodged in which there was only reference to consent with no reference made to reasonable belief and the Crown were entitled to proceed on the understanding that reasonable belief played no part in the defence case and the Advocate depute was entitled to address the jury on that basis. The court stated at paragraph 45 that “If a complainer says she did not consent and the accused says she did, it is not for defence counsel to invent a middle, speculative ground.” In relation to the second ground of appeal the court considered that the criticisms of the Advocate depute were misplaced and did not overstep the lines of propriety in the way that he put the complainers’ allegations to the appellant in cross-examination. The court also considered the way in which the trial was conducted by parties and the length of time taken to examine the complainers’ in evidence, particularly in relation to peripheral matters which had little bearing on the principal issues in what was a high court rape trial. The court considered that the vast majority of the time spent examining the complainers was on matters which were of little importance and the court remarked that only around a tenth of the testimony related to the serious charges. The court reiterated the importance of parties having regard to the provisions of sections 274 and 275 of the 1995 Act and timeously identifying the issues in a case and to resolve any issues of admissibility in advance of the trial.