A.A. v. Her Majesty’s Advocate [2021] HCJAC 9

Note of appeal against conviction:- The appellant was convicted after trial at the High Court of:- (1) a charge of sexual assault in relation to 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 contrary to section 3 of the Sexual Offences (Scotland) Act 2009; and (2) a charge of sexual assault in relation to B while she was sleeping, and thus incapable of giving or withholding consent, by entering her bed, unzipping her clothing and touching her on her vagina contrary to section 3 of the Sexual Offences (Scotland) Act 2009. A co-accused was convicted of a charge of rape in relation to the complainer A at the same time the appellant sexually assaulted her. The appellant appealed against his conviction it being contended that the trial judge misdirected the jury by failing to give directions on the issue of reasonable belief that complainer A was consenting, it being submitted that it was a live issue in relation to charge 1. In light of the lack of specification of the case and argument lodged by the solicitor advocate in the appeal (not the solicitor advocate who conducted the trial) the court obtained transcripts of the appellant’s evidence together with the complainer’s evidence. The appellant’s evidence was that the complainer had been an active and willing participant in the sexual activity and had given consent. It was noted by the court that it could not be said on the appellant’s account that he might wrongly have interpreted or mistaken for consent which could have given him a reasonable belief in consent. The court refused the appeal. The court considered that the circumstances fell within what was said in Maqsood v HMA 2019 JC 45 at paragraph 17 as “a situation in which the complainer is clearly consenting and there is no room for a misunderstanding”. The court stated that the appellant’s case was presented on the basis that the complainer’s consent was clear and obvious to him as he touched her over a period of minutes. As such the court did not consider there to be any basis for the issue of reasonable belief in consent to be live during the trial and any directions on reasonable belief on consent would be superfluous.