S.B. v. Her Majesty’s Advocate [2021] HCJAC 11

Note of appeal against conviction:- The appellant was indicted, along with his co-accused, of charges physical and sexual offences perpetrated against two young and vulnerable teenage girls in Cupar and Dundee between December 2002 and March 2006. The co-accused had various charges withdrawn against him during the trial and he was acquitted of the remaining charges following the trial judge sustaining a ‘no case to answer’ submission in relation to those remaining charges. The appellant was convicted of charge 4 (indecent assault/sodomy/rape of JB) and charge 7 (indecent assault/sodomy/rape of DS) a docket was attached to the indictment giving the appellant and his co-accused notice that certain evidence would be led in relation to other conduct involving JB and DS. The appellant was subsequently sentenced to a cumulo period of imprisonment of 6 years. The appellant appealed against his conviction it being contended that the jury returned verdicts which no reasonable jury, properly directed, could have returned. Further, it was contended that the trial judge misdirected the jury in relation to the docket attached to the indictment resulting in a miscarriage of justice. During the period of the libel the appellant was in a relationship with the complainer JB and his co-accused was in a relationship with the complainer DS during the same period. It was accepted on behalf of the appellant that each complainer gave evidence which, taken at its highest, amounted to evidence of having been raped by the appellant whilst acting along with the co-accused and that the evidence given by each complainer in support of each of charges 4 and 7 was capable of being corroborated through the application of the doctrine of mutual corroboration. It was submitted, however, that no reasonable jury could have found the evidence given by JB as credible or reliable. It was submitted that the evidence of JB was to the effect that she had gone along with the appellant’s suggestion that sexual activity involving all three of them would be fun and that she did not participate out of a sense of fear or violence, but rather to keep the appellant happy. It was submitted her evidence was confused on the central issue of consent and could not be found credible or reliable. It was accepted that the test to be met in such an appeal was a high one, however, the test had been met in the present case. On behalf of the Crown it was submitted that the test to be applied in an appeal based upon such a ground is an objective and a high one and the test had not been met here. In relation to the second ground of appeal it was submitted on behalf of the appellant that the trial judge ought to have given the jury clear directions explaining the use to which they could legitimately put the evidence led under reference to the docket and no such directions had been given and the omission constituted a material misdirection resulting in a miscarriage of justice. On behalf of the Crown it was submitted that the trial judge had referred to the docket in his introductory remarks, namely, that the docket only had an evidential function and that the jury would not require to return a verdict in relation to it. Here the court refused the appeal. In relation to the first ground of appeal the court considered that the jury were entitled to conclude that she was to be accepted in the essentials of what she had said about why she participated in sexual activity with both SB and SM and that she was credible and reliable in testifying that she had not consented to doing so and had participated out of fear. The court considered that there was a necessary baseline of quality (McDonald v HMA 2010 SCCR 619). The court observed that through experience it is able to say that it is not uncommon for victims of sexual abuse to delay or stagger reporting, or to be inconsistent in doing so and it is the function of the jury to assess the credibility and the reliability of any account given in light of the circumstances of each case. The court also noted that there had been no challenge to the evidence of DS and the jury would have been entitled to take account of DS’s evidence of being scared of what would happen if she did not take part and of what caused her to be scared and the jury were entitled to weigh their conclusions about DS’s evidence in their assessment of what to make of the account given by JB. In relation to the second ground of appeal the court noted that by the time of the judge’s charge a clean copy of the indictment containing only the four remaining charges (the docket was not attached to it) and the trial judge explained during his charge that they were only concerned with these four remaining charges. The court also considered that the guidance provided by the case of Lyttle v HMA 2003 SCCR 713 in which the Lord Justice Clerk (Gill) stated that introductory remarks made by a judge to the jury are not part of the formal procedure of the trial and, that where the trial judge has omitted a material direction in the course of the charge, neither the trial judge nor the Crown can pray in aid anything that the judge may have said in the course of those remarks, were now out of date as a result of:- (1) section 63 of the Criminal Justice and Licensing (Scotland) Act 2010 introducing section 288BA of the 1995 Act which provided a statutory framework for the use by the prosecution of a docket to inform the defence of the prosecution’s intention to lead evidence in sexual offence cases of an offence not charged; and (2) from July 2020 jurors were provided with certain written directions at the commencement of the trial.