L.C. v. His Majesty’s Advocate [2022] HCJAC 47

Note of appeal against conviction:- On 2 March 2022, at Edinburgh High Court, the appellant was convicted after trial of two charges:- (1) a contravention of section 1 of the Domestic Abuse (Scotland) Act 2018; and (2) rape, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The appellant was sentenced to 9 months imprisonment in relation to charge 1 and 4 years imprisonment in relation to charge 2, which sentences were to run consecutively to each other. The appellant appealed against his conviction in relation to charge 2, it being contended that the trial judge misdirected the jury in relation to two remarks attributed to the appellant in his police interview, namely, (i) “I went in too hard”; and (ii) “I guess it’s my fault” in that whilst the judge suggested to the jury that the first statement was not corroboration, he did not direct that it was not open to them to treat it as such and in relation to the second comment whilst he cautioned them to read the comment in context he expressly left it to them to decide whether it corroborated the complainer’s account and each misdirection resulted in a miscarriage of justice. It was submitted on behalf of the appellant that neither of the comments had been capable of corroborating the complainer’s evidence that the appellant continued to have intercourse after she had withdrawn consent and in light of the Advocate depute’s speech in which it was submitted that the second comment was available as corroboration, the trial judge ought to have given clear directions to the jury to that effect. On behalf of the Crown it was submitted that the rial judge had not misdirected the jury and the appeal should be refused. It was submitted that in relation to the first comment the judge had made it clear that it did not provide corroboration and in relation to the second comment the jury had been directed that it was up to them to decide whether it corroborated the complainer’s account as whether what an accused has made an admission was a matter of fact and circumstance to be determined by the jury. It was further submitted that even if the trial judge had misdirected the jury there had been other evidence available to the jury to corroborate the complainer’s account and there had been no miscarriage of justice. Here the court refused the appeal. The court reiterated that an admission need not be unequivocal for it to provide corroboration of an essential fact, provided it may reasonably be inferred from what was said and its context that it was an admission which confirms or supports the principal evidence relating to that fact. The court considered that the trial judge was wrong not to have directed, clearly and in robust terms, that the first comment could not provide corroboration as he had told them that “if you don’t accept the advocate depute’s suggestion that you’ll find corroboration in the police interview, then there is another source of potential corroboration available to you”. As such the court considered that was a misdirection. In relation to the second statement the court considered that the comment when read in context, i.e. relating to whether the complainer sustained any injuries because of what happened, it was not reasonably capable of bearing the inference that the appellant was admitting that he persisted with penetration after consent had been withdrawn. As such the court considered that the trial judge ought to have directed the jury that the comment was not capable of corroborating the complainer’s account and amounted to a misdirection. The court considered that the misdirections, taken together, had resulted in a miscarriage of justice. As a consequence of the court’s decision, the Crown sought authority to bring a new prosecution in terms of sections 118 and 119 of the Criminal Procedure (Scotland) Act 1995 which was opposed by the appellant. The court granted the motion. The court noted that, whilst there had been fault on the part of the Crown in the form of misjudgements by the trial Advocate depute, the alleged crime was a serious one, there remained a sufficiency of evidence and the date of the alleged crime was relatively recent.