I.A. v. His Majesty’s Advocate [2023] HCJAC 24

Note of appeal against conviction:- The appellant was convicted after trial at Glasgow High Court of a charge of rape, the jury having rejected the appellant’s position that the complainer consented to oral sex, and his evidence that the complainer offered him oral sex in exchange for cocaine. The appellant appealed against his conviction. It was contended that the trial judge had misdirected the jury in relation to the evidence of MS from which, it was submitted by the defence, an inference open to the jury was that the complainer had given the appellant oral sex in exchange for cocaine and by, in effect, undermining the defence submissions on the issue at a late stage in the charge the effect of it was to undermine the defence by impressing the judge’s own views of that part of the evidence to the jury. A further ground of appeal related to an alleged misdirection by the trial judge in relation to bruising noted on the complainer during the Archway medical examination. It was submitted that the manner in which it was referred to by the trial judge was unbalanced and amounted to a misdirection. Here the court refused the appeal. The court considered that the fact the direction came towards the end of the charge was irrelevant and no particular significance could be attached to the stage at which the direction was given. Furthermore, the court considered that the trial judge was seeking to correct the impression defence counsel had given in his speech that the evidence referred to by him was more unequivocal and clear than it in fact had been and the purpose of the direction was not to suggest that the evidence referred to should be rejected but, rather, that it should be considered, along with all of the other evidence in the case, with care. The court noted that the trial judge had reiterated throughout his charge that questions of fact were for the jury and not him to determine and that their evidence had to be based on the evidence and not on speculation and it was for them to assess and determine what they made of the evidence of MS. In relation to the other ground of appeal the court considered that there was no misdirection by the trial judge in relation to the bruising. The court noted that the trial judge had reminded the jury to take into account what defence counsel said in his speech about the bruising reminding them that it was the defence position that the timing/dating of the bruising could not be determined with any accuracy and was unconnected with anything which occurred between the complainer and the appellant within the toilet at the material time. In addition, the court stated that the trial judge was correct to direct the jury that if they considered that the bruising was as a result of sexual activity between the appellant and the respondent it was available to support the complainer’s evidence that she did not consent to that sexual activity, however, if they were not so satisfied then the evidence of bruising should simply be discarded.