Sajjad Afzal v Her Majesty's Advocate [2013] HCJAC 103

Criminal note of appeal against conviction:- On 27 September 2012 the appellant was sentenced to 7 years imprisonment after being convicted after trial of a charge of indecent assault and rape. The issue at the trial was whether the complainer consented to having sex with the appellant. It was his position that the complainer had met him, come home willingly with him and had sex not only with him but also with his friend, his former co-accused. The complainer's position in evidence was that she had not consented to any sexual activity with the appellant. In the course of their deliberations the jury asked, through a written question:- "In giving our verdict, are we being asked to decide on one charge, or one of rape and three of assault. Or one of rape and one of assault?" The trial judge directed them in line with an agreed position to the effect that they were required to return a single verdict, rather than multiple verdicts, albeit if they were not satisfied that particular parts of the charge had been established, then they could strike those parts out in returning their single verdict. The jury returned a verdict of guilty, without any deletions. The appellant appealed against his conviction on the basis that the trial judge misdirected the jury by failing to direct them specifically that a majority of eight was required for the appellant to be convicted of each part of the charge which constituted a discrete offence. Here it was submitted on behalf of the appellant that the trial judge ought to have gone further and where a charge contained two or more discrete criminal offences, like in the present case, the trial judge should specifically direct the jury that if they are to convict of these offences there must be at least eight votes in favour of conviction in respect of each discrete offence within the charge. It was submitted on behalf of the Crown that the charge had to be considered in the context of the evidence at trial and the main issue to be considered in the case was whether the complainer consented to none of the sexual activity or whether she had been consenting to the sexual activity. Here the court refused the appeal and decided that the direction considered necessary on behalf of the appellant was unnecessary. The court considered that it was clear to the jury that what was alleged was the commission of two criminal offences, rape and indecent assault, and that if the appellant were to be convicted of rape then there must be at least eight votes in favour of that verdict and if he were to be convicted of indecent assault then there would have to be eight votes for that verdict also. Further, the court considered that the terms of the question by the jury indicated that they fully understood that they were being asked to return a verdict in respect of a charge which alleged separate offences and their concern was as to how they could do that.