High Court rejects appeal of man convicted in ‘distressing’ sexual assault trial

Gavin Macdonald argued that the trial sheriff’s use of the word “victim” to describe the complainer in certain parts of his charge was sufficient to constitute a miscarriage of justice.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Turnbull and Lord Pentland.

Went in to borrow cigarettes

The appellant was convicted for sexually assaulting the complainer, SD, by locking her inside a room, touching and rubbing her inappropriately, and penetrating her vagina with his fingers to her injury. At the time the offence was committed, the appellant was aged 52 and the complainer was aged 24. The appellant lodged the special defence of consent. A joint minute was lodged which agreed that the complainer had been digitally penetrated by the appellant.

On the day in question, the complainer was staying in a room of a house occupied by her partner. The appellant stayed in another room inside the same house. She entered his room in order to borrow cigarettes. Following some friendly conversation, the appellant locked the door to the room and committed the offence. The complainer reported the crime to the police a few hours after the incident and was medically examined.

Prior to the trial diet, an application made under Section 275 of the Criminal Procedure (Scotland) Act 1995 was made by the defence stating they wished to adduce evidence that, among other things, the complainer and the accused had consumed cocaine together at the time of the alleged assault. There is no record of the application having been judicially considered or determined, but at the trial the parties and the sheriff appear to have proceeded on the basis that it had been granted.

During cross-examination, it was frequently alleged that the complainer had consented to sexual activity and that she had consumed cocaine with the appellant. Throughout her cross-examination, the complainer was upset and frequently crying. She was particularly distressed at the suggestions involving cocaine.

In his address to the jury, the appellant’s law agent repeated an assertion that the complainer had engaged in consensual sexual behaviour and had been concerned about being found out by her boyfriend, hence her distress. He also asserted that what had happened was what she had wanted to happen.

In his charge, the trial sheriff described the complainer as a “victim” during the part of his charge where he instructed the jury to “look objectively at what the proven facts tell you about the interaction between the victim and the other party and their mutual or what understanding they would have had on that understanding about what was happening”.

The appellant contended that it had been entirely inappropriate for the trial sheriff to refer to the complainer as a “victim” in this part of his charge. The appellant had admitted sexual conduct in terms of the joint minute. The issue at trial was whether or not the complainer had consented or if the appellant had had a reasonable belief that she had been consenting.

In response, the advocate depute submitted that the use of “victim” did not indicate how the sheriff perceived the complainer’s evidence. The term victim had been used at a point in the charge which had dealt with a defence for which there was no evidence. The sheriff did fall into error when dealing with the defence of consent in that he said that the appellant had a position whereby the complainer had consented. That error was favourable to the appellant.

Real causes of concern

The opinion of the court was delivered by Lord Carloway. In relation to the sheriff’s use of the word “victim”, he said: “The court is not satisfied that this has led to any miscarriage of justice. The sheriff did not use the word in a manner which would have suggested that the crimes libelled had been committed or that the complainer was in fact a victim. It is clear from the context in which the words appear that the references to a ‘victim’ were lapsus linguae. It would have been clear to the jury that the task which they had to undertake was a determination of whether the events had occurred as described by the complainer.”

For this reason, the appeal was refused. However, Lord Carloway also noted that the case raised a number of issues in relation to the conduct of sexual offences trials in general, and that the manner in which it was conducted raised “real causes of concern”.

He noted generally: “The court has made repeated efforts to ensure that the ‘rape shield’ provisions of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 are properly adhered to by trial courts. It has explained the import of these sections in clear terms. It has also given definitive guidance on the duties of a judge to control the tone and content of cross-examination, especially in sexual offences cases. The importance of this to the proper administration of justice cannot be underestimated.”

Describing the case as “a further illustration of a trial court’s failure in this regard”, he continued: “Section 275 applications must be properly administered and determined. Once made, they ought to be carefully considered by the Crown. If they seek the admission of evidence which is inadmissible at common law or under section 274, they ought normally to be opposed. Without such opposition, in the context of an adversarial system, the court may find it difficult to exclude the proposed evidence, which is outlined in the application, when it is relatively ignorant, at the stage of determining the application, of the totality of evidence which is to be adduced by the Crown at the subsequent trial. There was no opposition in this case and, as the Advocate Depute correctly accepted, there should have been.”

He said of the questioning by the defence: “What was put to the complainer was that she had taken the cocaine with her to the appellant’s flat (i.e. supplied illegal drugs to him). This was not even in the section 275 application. Similar considerations apply to various other irrelevancies adduced at the trial, such as the complainer throwing a mobile phone at her boyfriend and the complainer showering with DR. All of this evidence ought to have been objected to and excluded. It is most unfortunate that a complainer in a sexual offences trial should have been subject to such questioning. It is not at all surprising that she was distressed as a result.”

He concluded: “This trial was conducted in a manner which flew in the face of basic rules of evidence and procedure, not only the rape shield provisions but also the common law. It ignored a number of principles which have been laid down and emphasised in several recent decisions of this court. If justice is to prevail in the prosecution of sexual offences, it is imperative that those representing parties abide by these basic rules. If they do not do so, the judge or sheriff must intervene to remedy the matter. During her cross-examination, this complainer was subjected to repetitive and at times irrelevant questioning. She became extremely distressed and rightly so. The court did nothing to intervene. Were this to be repeated, the situation in sexual offences trials would be unsustainable.”