Her Majesty’s Advocate v. M.M.I. [2022] HCJAC 19

Crown Appeal under section 107A of the Criminal Procedure (Scotland) Act 1995:- The respondent was indicted and proceeded to trial in relation to a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009 in relation to an incident in May 2019 at the Hotel Indigo, Dundee. The Crown closed their case on day three of the trial when the trial judge sustained a defence ‘no case to answer’ submission made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. The Crown appealed against the decision of the trial judge. The evidence led by the Crown comprised of the complainer who spoke to consuming a significant quantity of alcohol and being very drunk. She had no recollection of being in the company of the respondent within Hotel Indigo, her first recollection was of being in a room at the Hotel Indigo and the police coming in. She had no memory what had happened in the room but she was wearing her jeans and a t-shirt which was inside out, she was not wearing underwear and had no recollection of having had sexual intercourse, however, the agreed scientific and medical evidence, confirmed that sexual intercourse had occurred. A barman from earlier in the evening spoke to the complainer being pale, disorientated, having a blank expression and being very drunk and guided by the respondent. CCTV footage from the bar showed the complainer an respondent in each other’s company and to them kissing. A taxi driver who gave them a lift to Hotel Indigo described the complainer being intoxicated and that something did not “sit right” with him and was so concerned by his “gut feeling” that he contacted the police. The hotel receptionist described the respondent as appearing to be in a hurry and to the complainer looking a little bit drunk. CCTV from the hotel showed the complainer walking slowly, stumbling and looking “blank” according to a police officer who subsequently viewed the footage. The police had attended the Hotel and the receptionist took them to the bedroom where they found the complainer in the bathroom. One of the officers described her as being extremely intoxicated, confused and unable to answer questions. The complainer said to the police:- “I don’t really know him. He’s yuck. I don’t like him. He’s a weirdo. Not good memories. I feel like what he has done is not right”. The complainer was said to be “severely” intoxicated, unsteady on her feet and “mumbly” when talking. The complainer’s blood alcohol concentration was between 265 and 340mg per 100ml at the time of the incident. The forensic scientist was unable to say exactly what effect the alcohol may have had on the complainer’s recollection or her capacity to consent. The judge took the view that there was insufficient evidence to yield the inference that the result of the complainer’s intoxication was that she was incapable of consent. Here the court allowed the Crown appeal. The court reiterated that where no issue of corroboration arises, it is only where there is no evidence from which a jury can infer that a fact in issue is proved that a ‘no case to answer’ submission can be sustained. The court stated that where the issue is one of capacity to consent it will rarely be open to a judge to sustain such a submission where the evidence is of a young woman, alone at night, vulnerable through drink being picked up by a stranger and then having sex a short time later. The court considered that the issue of consent and capacity to consent ought normally to be left to the jury to determine. The court went on to highlight a number of pieces of evidence which were sufficient for a jury to infer that at the time of the act of sexual intercourse the complainer was not capable of consenting. The case was remitted back to the trial judge to proceed as accords.