Man who raped woman in hotel loses appeal against conviction

A man who was sentenced to six years’ imprisonment for raping a woman in an Edinburgh hotel has had his appeal against conviction refused.

Basharat Khan appealed on the ground that the trial judge had misdirected the jury in relation to the adoption of prior statements. A co-accused was acquitted of a separate charge of rape on the same date and in the same location.

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

Pushed onto a bed

The complainer had gone to the hotel, a Travelodge, on 3 September 2017 with a male acquaintance and his friend, the co-accused, where they met with other people including the appellant in a room. She fell asleep after having consensual intercourse with her acquaintance and consuming alcohol and some cannabis. She awoke later when she became aware she was being penetrated by another man, identified as the co-accused.

Later on, the appellant then attacked her by pushing her onto a double bed, slapping her mouth with his hand, and raping her. She had kept saying she did not want this. After the incident, she got a taxi back to her home, and later spoke to several people about the incident, including a friend, a person who worked at her doctor’s surgery, and the police.

In cross-examination, counsel for both accused embarked upon various enquiries into what the complainer had said, or had not said, to persons after the incident as per section 263(4) of the Criminal Procedure (Scotland) Act 1995, which allows for the examination of a witness as to whether they had made statements to others prior to the trial that differed from what they gave in evidence at trial.

Similar enquiries were made of the principal source of corroboration, AS, another male who had been in the room at the time, in particular examining the difference between his evidence at trial and an earlier statement made to the police in which he stated that the only person he saw having sex with the complainer was the co-accused.

The trial judge gave the standard jury directions on hearsay evidence, and said of the prior statements that they could be used either to support or undermine the witnesses’ credibility or reliability. She also said that because the witnesses had adopted those earlier statements as truthful, the jury could accept either the prior statements or the statements made at trial as evidence.

The appellant submitted that neither the complainer nor AS had adopted their statements in the manner described, and therefore the trial judge had misdirected the jury. It was necessary for the judge to direct the jury regarding the specific circumstances and that it was their decision as to whether or not the statements had been adopted, what parts had been adopted and which aspects had not been adopted.

He also submitted that the jury should also have been directed specifically about the adoption by AS of his earlier statement that he had not witnessed any other person having intercourse with the complainer.  This had been referred to by counsel for the appellant in his speech, but it was an important aspect in the trial and specific directions ought to have been given about it.

The advocate depute conceded that what the trial judge had said on adoption was inaccurate, but the purpose of referring to the witnesses’ prior statements was to challenge the credibility of the evidence, not to secure adoption. It was submitted that it was actually in the appellant’s favour that those directions on adoption were given.

In the appellant’s favour

The opinion of the court was delivered by Lord Turnbull. He began by addressing the submissions on misdirection, saying: “We agree with the submission that what the trial judge said to the jury was incorrect and constituted a misdirection. Issues as to the potential adoption of statements by the witnesses concerned are not, as the trial judge suggested in her charge, to be resolved by operation of law. They are matters of fact to be left for the jury to determine as part of their evaluation of the whole evidence before them.”

In relation to the statements given by the complainer, he said: “The evidence of a witness comprises what that witness is able to recollect in the witness box, including what they have been prompted to remember by reference to their statements. The witness being prepared to accept that the proposition advanced was correct, it is not obvious that any direction on adoption was in fact necessary in relation to this passage. However, most would no doubt have assumed that counsel had as his purpose securing the adoption of the passages to which attention had been drawn. On that understanding it is difficult to see why the appellant would wish to criticise the judge for directing the jury that the witness had adopted this statement.”

He continued: “Insofar as the references to the statement were concerned the trial judge gave a direction, the effect of which was that the statement had been adopted. Whilst this direction as it applied to this witness and to this passage may have been unnecessary, it cannot be criticised as being unfair to the appellant.”

On the evidence of AS, he said: “From reading the transcript we were left with the impression, as can so often be the case in the course of questioning which moves backwards and forwards between an examination of what was said on a prior occasion and what actually happened, that the witness simply did not understand the underlying point which counsel was seeking to make about the prior statement.”

He continued: “To suggest that this witness gave evidence, by way of adoption, that he did not see any sexual contact between the complainer and the appellant is entirely artificial. It is a proposition which required to be advanced on the basis of ambiguous answers to questions which lacked the qualities of straightforward precision and clarity such as were essential in fairness to this particular witness. At best for the appellant the statement contained a prior inconsistent account. Yet it is difficult to understand what the complaint is. In his speech to the jury counsel for the appellant founded upon the fact that AS had agreed with him that what he had told the police was the truth. The direction which the trial judge gave was to the effect that the witnesses had adopted their statements because they accepted that what they had told the police was true. The jury were therefore enabled to treat the statement by AS as evidence of the truth of its content. If, as we think, there was no meaningful adoption then the misdirection was in the appellant’s favour.”

Concluding, he said: “In the present case there were certain passages in the evidence of the complainer where her attention was drawn to parts of her statement which she insisted were inaccurate. These passages were drawn attention to by counsel for the appellant in his speech when he reminded the jury that the complainer had insisted that parts of her statement were not true and accurate. The matters concerned were trivial and of no relevance to the appellant’s case or to his defence but they serve to underline the point that the jury require to determine for themselves whether any given part of a statement has been adopted or not and that they can only do so on the basis of properly framed directions.”

For these reasons, the appeal was refused.