Appeal against ‘intent to rape’ conviction over sheriff’s ‘prejudicial misdirection’ dismissed

Graham Paterson, who had admitted sexually assaulting the complainer but denied any intent to rape, argued that the sheriff’s description of the attack, which was captured on CCTV, as “prolonged” and “fierce”, had “influenced the jury”.

However, the High Court of Justiciary Appeal Court refused the appeal after ruling that no “miscarriage of justice” had occurred.

‘Intent to rape’

Lord Brodie, Lord Drummond Young and Lord Malcolm heard that, following a trial on indictment at Hamilton Sheriff Court in September 2018, the appellant was convicted by a majority of assaulting the complainer having approached her while she was walking on her own, grabbing her by the waist and pushing her against a wall and repeatedly struggling with her.

He then slapped the complainer, kicked her, held her against the wall and uttered a sexual remark and grabbed her buttocks, with intent to rape her, contrary to section 3 of the Sexual Offences (Scotland) Act 2009 and the common law.

He was sentenced to three years’ imprisonment but appealed against his conviction.

The ground of appeal granted leave was that, in a context where there was CCTV evidence of the incident and the only issue to be determined by the jury was whether the admitted assault on the complainer by the appellant was with intent to rape her, the sheriff’s directions to the jury were “confused and prejudicial”.

The court was told that on the first day of the trial the appellant had offered to plead guilty to the charge under deletion of the words “utter a sexual remark at her”, “kick her”, “and this you did with intent to rape her as defined in section 1 of the after mentioned Act” and “and the common law”. 

Consistent with that plea, in her cross-examination of the complainer counsel for the appellant disputed very little of the complainer’s evidence in chief.

In her address to the jury she described what the appellant had done as “a terrible thing”, saying that, “on his own admission…he did commit a horrible, violent sexual assault”, while the appellant’s defence counsel had also described the events as “a horrible, violent, sexual assault”.

‘Prejudicial misdirection’

But the appellant argued that the sheriff’s directions contained a “prejudicial misdirection”, which led to a “miscarriage of justice”.

The sheriff had told the jury, in relation to the intention of the accused, that: “It’s perfectly clear that you cannot look into his mind to see what he did intend, but [what] you can do is infer from what you have seen on the CCTV, of what you’ve heard in evidence, that the inference can be drawn that the intention was to go further in the sexual assault and with the intention to rape”.

She added that: “You’ve seen the nature of the attack. It was prolonged and it looked quite fierce and you saw the brave actions of [the complainer] in trying to get away and which she eventually succeeding in doing.”

It was submitted that the “misdirected” the jury by commenting and expressing opinion on issues of fact which were entirely matters for the jury.

The sheriff had directed the jury as a matter of fact that they could infer from the evidence including the CCTV footage that it was the appellant’s intention to “go further with the sexual assault”.

She had offered the interpretation of what was shown on the CCTV footage, describing the attack as “prolonged” and “fierce”, and the actions of the complainer as “brave”.

While it was accepted that nothing the sheriff said was inaccurate, her saying “went beyond the sheriff’s proper function”, and there was clear authority that judges and sheriffs should avoid commenting on issues of fact which are for the jury to determine.

It was argued that there was a “very real risk” that by expressing her opinion the sheriff had influenced the jury in reaching a majority verdict.

‘No question of a miscarriage of justice’

Refusing the appeal, the judges observed that while the sheriff could have put the matter “more precisely”, the jury would have understood intention and, in any event, the CCTV footage would have been “much more influential on their thinking” than anything the sheriff had to say about it. 

Delivering the opinion of the court, Lord Brodie said: “We do not consider that the sheriff in the present case was guilty of impressing her views unduly upon the jury or otherwise materially misdirecting them. As always, regard must be had to the context in which she was giving her directions and the whole terms of her charge.

“The passages which are criticised are found in that part of the sheriff’s charge where she is addressing how the jury might use the CCTV evidence, together with the evidence of the complainer and the evidence of the appellant, to decide on what was the appellant’s intention when he carried out the assault.

“Her purpose therefore was to direct the jury as to how they should go about determining what, if anything, had been the appellant’s intention when he assaulted the complainer.

“The sheriff might then have said something along the lines of ‘It is open to you, if you see fit, to infer that the appellant had an intention to rape the complainer from what you have seen on the CCTV and what you have heard from the witnesses’.

“That is what we would understand to have been her intention and, more importantly, that is what we would understand would have been the jury’s understanding, given everything else that the sheriff said.

“In characterising the assault in the way she had the sheriff was no more than echoing what had been said by the appellant’s counsel. That it had been a fierce and prolonged attack to which the complainer had responded with determination was essentially uncontroversial.

“We do not consider that the appellant’s grounds of appeal are well-founded but, as always, the fundamental issue is whether there has been a miscarriage of justice. Given the evidence as summarised in the sheriff’s report and undisputed by the appellant, there can be no question of there having been a miscarriage of justice by reason of the jury concluding that the assault was with intent to rape.”