Her Majesty’s Advocate v. Bilaal Afzal [2019] HCJAC 37

Note of appeal under section 107A of the Criminal Procedure (Scotland) Act 1995:- The respondent was indicted and proceeded to trial in relation to an allegation of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The charge alleged the assault and rape of AK “while she was asleep and incapable of giving or withholding consent”. At trial during the course of her evidence the complainer described having consensual intercourse with ‘Kamil’. The complainer said that, after intercourse, she had fallen asleep. Asked if she had consented to intercourse with anyone other than Kamil, she said that she had not. She was then asked if she had consented to intercourse with the respondent and she stated she had not. It was the complainer’s position that immediately after having sexual intercourse with Kamil she felt someone penetrate her from behind who she initially thought was Kamil but then felt that the penis felt different. She stated she felt hazy and fell asleep after the second episode of intercourse. During the course of cross-examination the complainer stated that what occurred felt like a swap. Evidence was led from AS who had been in the room and saw the respondent on top of the complainer who was sleeping at the time and did not know what was going on. AS stated that the respondent was laughing and had taken advantage of the complainer. Forensic evidence disclosed that semen recovered from vaginal swabs of the complainer contained a mixed DNA profile, indicative of the complainer having had intercourse with Kamil and the respondent. At the close of the Crown case a ‘no case to answer’ submission was made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 which was sustained by the trial judge. The trial judge considered that the Crown required to prove by corroborated evidence that the complainer had been asleep during the act of intercourse and had failed to do so as the complainer had not spoken to that and in the absence of the libel of being asleep, there would be no specification of the circumstances in which penetration took place. The Crown appealed against the decision of the trial judge under section 107A of the 1995 Act. It was submitted on behalf of the Crown that the Crown required to prove by corroborated evidence only that the respondent had penetrated the complainer, which was not in dispute in the present case, and that the complainer had not consented to that penetration. It was submitted that were two sources of evidence that the complainer had not consented because she was asleep:- (1) the evidence of AS; and (2) the evidence of the complainer who had initially said that she had fallen asleep after intercourse with Kamil and had also said that she had not consented to having intercourse with the respondent. It was submitted that the essence of the crime was the absence of consent and it was open to the jury to delete from the libel reference to “sleep”. It was submitted on behalf of the respondent that the essence of the charge libelled was that the complainer was asleep and that looking at her evidence as a whole she had not been asleep when penetrated by the respondent. It was submitted that the differing accounts provided by the complainer’s account and AS were such that there was no conjunction of testimony. Here the court allowed the appeal and the case remitted to the trial judge to proceed as accords. The court noted that the complainer gave evidence that she had not consented to having intercourse with the respondent. The evidence of AS was that the complainer was asleep at the material time. There was scientific evidence showing that the respondent had sexual intercourse with the complainer. The court considered that there was a sufficiency of evidence for a charge of rape. The jury would be entitled to find that sexual intercourse had taken place and that the complainer had not consented to intercourse with the respondent. The court observed that whilst the issue of reasonable belief was not an issue at the stage reached, reasonable belief is not something which requires to be corroborated.