Amir Bakhjam v. Her Majesty’s Advocate [2018] HCJAC 11

Note of appeal against conviction:- On 30 January 2017, at Glasgow High Court, the appellant was convicted after trial of a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The charge had included an averment that the appellant had intentionally administered a substance to the complainer for the purpose of stupefying or overpowering her to enable him to engage in sexual activity with her contrary to section 11 of the 2009 Act, however, at the close of the Crown case the Advocate depute moved to delete the part of the charge which related to section 11. The appellant was subsequently convicted and sentenced to 5 years imprisonment. The appellant appealed against his conviction. The basis of the appeal related to the conduct of the Crown in libelling the section 11 element of the charge, then withdrawing it and subsequent comments by the Advocate depute in his speech to the jury regarding suspicions that remained which, it was contended, were prejudicial to the appellant and which unfairness resulted in a miscarriage of justice. The circumstances of the case were that the complainer, CK and the appellant were out for dinner in Glasgow. All three were drinking throughout the evening. At about 1.30am CK decided that it was time to go home at which time he noted that the complainer was very drunk. CK and the complainer had an argument and the complainer ran off. CK asked the appellant to go with the complainer in a taxi to ensure she was ok. The appellant was going to take her back to the home which she shared with CK. CK got a taxi home alone and expected the complainer to have arrived before him. The appellant did not take the complainer home and took her to his flat. At about 2.07am the appellant telephoned CK to tell him where she was. The appellant told CK that the complainer had said that she had not wanted to go home and that the complainer was significantly under the influence of alcohol, had collapsed in the street and the appellant had to carry her up the stairs to his flat and put her on a bed and she had been sick. The appellant asked CK if he was going to come to his flat but CK considered it would be best for the complainer to stay at the appellant’s flat until she felt better. In her evidence the complainer stated she could not recall leaving the nightclub but could recall falling in the street and being sick. The complainer recalled being naked but could not recall taking off her clothes. She recalled the appellant in the bed beside her touching her, rubbing her back and kissing her shoulders as she was being sick. She could feel his skin against her body. When she woke up later lying on her back, the appellant was on top of her and performing oral sex on her. The complainer was confused and asked him to stop. He continued to behave in this manner until she pulled his head away. He had said, “I’m sorry” and she passed out. The complainer then described waking up with the appellant having sexual intercourse with her and she passed out again. The next day the complainer woke up to find vomit down the side of the bed and a used condom on the floor. She asked the appellant if they had sex and there may have been a response of “do you not remember?” The complainer’s sister gave evidence of the complainer’s distress, observed later in the evening after the incident. When the appellant was detained and interviewed by the police he made no comment and he did not give evidence. Blood and urine samples taken from the complainer on the day she reported the rape disclosed the presence of a psychoactive substance, known as “Ivory Wave”. The complainer’s position was that she did not take the drug voluntarily. The case was indicted with the section 11 element included as it was considered by the Crown that an inference may be drawn that it was the appellant who had spiked the complainer as he had been purchasing drinks for her during the course of the evening and CK also denied administering it. The advocate depute amended the charge at the close of the Crown case by deleting any reference to the section 11 allegation. At the the start of his speech the advocate depute made certain remarks in relation to the aspects of the case relating to the drugs in her system including:- “...he herself didn’t take it, that her boyfriend didn’t give it to her, so there’s a suspicion that the accused might have given her it. But, of course, a suspicion is not good enough in this court ladies and gentlemen. I am not entitled to come to you and say that you need to find someone guilty because there’s a suspicion and, in any event, there wasn’t any evidence to support that he had done that...”. In the appeal against conviction it was contended on behalf of the appellant that the Crown in libelling the section 11 elements of the charge in the first place together with the remarks made by the Advocate depute in his speech were oppressive. It was submitted that the failure by the trial judge to give a specific direction to the jury to disregard the issue of who had put the drugs into the complainer’s system was material and resulted in such unfairness that a miscarriage of justice had resulted. The respondent submitted that there had been an evidential basis for the inclusion of the section 11 averment albeit it was conceded that this may have been an “overly cautious approach” having regard to the available evidence. It was submitted that there had been no oppression as a result and that no plea in bar of trial had been lodged, nor had there been any motion to desert the trial made on behalf of the appellant during the course of proceedings during the trial and the judge had dealt with the matter adequately by directing the jury that they should reach their verdict only upon the basis of the evidence which they had heard in court. Here the court refused the appeal against conviction. In relation to the ground of appeal the court noted that no plea in bar of trial had been lodged alleging oppression on the part of the Crown at any stage of the proceedings. The court did consider, however, that the statement by the advocate depute in relation to there being a continuing suspicion that the appellant had administered the drug for the purposes of engaging in the sexual activity with the complainer was improper, however, it did not inevitably result in a miscarriage of justice. The court considered that the critical issue in the case was whether the jury were satisfied that complainer’s state of intoxication was such that she was unable to consent to sexual intercourse and, on the basis of the evidence lead, particularly from CK and from the appellant who spoke to the complainer falling on the ground, being sick on the ground and being in a such a state of intoxication that she required to be carried up the stairs and put to bed that the jury could not have any reasonable doubt other than that she was incapable of giving consent and, as such, the remarks made by the advocate depute could have had no effect on the jury’s inevitable verdict. The court noted that no complaint was made of the remarks of the advocate depute in the defence speech to the jury and there was no invitation made to the court to desert the trial. The court went on to consider another aspect of the case relating to the issue of consent. Albeit reference had been made by the advocate depute, defence counsel and the trial judge to the appellant’s position being one of consent the court observed that there was no evidence of consent before the jury. Whilst a special defence of consent was lodged in advance of trial, there was no evidential basis to support it and it ought not to have been left to the jury for their consideration. The court considered that, on the evidence led, the only live issue for the jury to consider was whether the complainer was capable of giving consent and, in light of the unchallenged evidence of the complainer’s state of intoxication, there was no basis for holding other than she was incapable of giving consent.