High Court of Justiciary quashes man’s kebab restaurant sexual assault conviction

Faryad Darbazi was found guilty of digitally penetrating a woman contrary to Section 2 of the Sexual Offences (Scotland) Act 2009. He argued that he should have been allowed to state a special defence in the absence of a timeous written notice of an intention to do so.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Turnbull and Lord Pentland. The appellant was represented by McCall QC, while the Crown was represented by Edwards QC.

Changed defence

The appellant, who had been assisted by an interpreter throughout proceedings, was indicted to a First Diet on 14 November 2019. A defence statement lodged on his behalf at the time intimated that the appellant was not the perpetrator of the crime listed in the charge. The minute of the First Diet did not record that any special defence was intimated.

In January 2020, the appellant’s defence agent withdrew from acting in the case and alternative representation was obtained. A new trial diet was fixed for 3 February 2020. On that date, the appellant’s new agent moved the court to allow a special defence of incrimination to be lodged late.

The agent told the sheriff that he had been instructed to cite the proprietor of the restaurant in the libel as a witness. It was stated that YB, who had employed the appellant at the restaurant alongside another individual, AA, would be able to distinguish the appellant from AA, the incriminee. The motion was granted, and the trial diet adjourned to the following day.

When YB and AA did attend court on 4 February 2020, they both provided statements which incriminated the appellant, contrary to the statements made previously. At this stage, the appellant was formally precognosed. Given what he had earlier told the court, the second agent withdrew from acting, with a third agent appearing for the appellant on 6 February.

The third agent had been instructed to withdraw the incrimination and lodge instead a special defence of consent. He explained that the appellant had accused his fellow worker “in a panic” and has taken the advice of his original agent that he need not state his position until trial literally, not disclosing his true defence until after precognition.

The sheriff refused to allow the late acceptance of the special defence of consent. He held that no cause had been shown to allow this second, contradictory defence late. The appellant had deliberately and repeatedly failed to comply with his statutory obligation by choosing not to disclose, and then to change, his special defence. The appellant was later convicted at trial.

It was submitted on appeal that the refusal to allow the special defence of consent to be lodged meant that the appellant could not adduce evidence in support of his defence. The allowance of the defence would not have caused any delay, and no “special” cause was needed. The remedy for late lodging was an adjournment and the penalty was the Crown’s ability to cross-examine on the point.

No prejudice identified

The opinion of the court was delivered by Lord Carloway. Examining the events of 6 February in detail, he said: “The reality which faced the sheriff at the adjourned diet of trial on 6 February 2020 was that the appellant was advancing a radical change in position and seeking leave to lead evidence showing or tending to show that the complainer had consented to what had occurred in the restaurant.”

He continued: “No matter how careless, or even deliberate, an accused’s actions may have been in failing to lodge the appropriate special defence timeously, cause is shown if it is demonstrated that it is in the interests of justice that the application to state the defence be granted.”

Addressing the question of whether it was in the interest of justice to accept the special defence, he said: “There was no suggestion that, had the appellant been allowed to state the new defence, the trial would have to have been postponed or adjourned. As it happened, it did not take place in any event until almost a week later. It was not suggested that any further inquiries were required or that further witnesses or productions would be needed.”

He continued: “No doubt the complainer would have had to be told of, and asked about, the issue of consent. That might well have annoyed and/or distressed her, but, given her position at trial, her answer to any inquiry would have been relatively succinct and would not have prompted any further investigations.”

Noting there was no legal bar against an accused changing position in advance of trial, Lord Carloway went on to say: “So far as identifiable, no such prejudice was identified. The sheriff simply found that no cause had been shown. In so doing he does not appear to have addressed the critical factor of the interests of justice. He seems to have considered ‘cause’ simply in the sense of whether a good reason for failing to lodge a timeous special defence had been proffered. That was an error.”

He concluded: “The refusal to allow the appellant to state a defence of consent meant, put bluntly, that he was deprived of his defence. That is a very serious matter indeed. In the circumstances of the appellant’s position, the interests of justice required that he be allowed to state that defence.”

For these reasons, the appeal was allowed and the appellant’s conviction quashed.