David Griffiths Little v. His Majesty’s Advocate [2025] HCJAC 18

Note of appeal against conviction:- On 22 April 2024 at Aberdeen Sheriff Court, following a trial on indictment, the appellant was convicted of a charge of sexual assault contrary to section 3 of the Sexual Offences (Scotland) Act 2009. He was acquitted of charge 1 a charge of sexual assault by penetration of the complainer. The Crown withdrew charge 3, a misuse of drugs offence, at the close of the Crown case. On 6 June 2024, following the obtaining of a Criminal Justice Social Work Report appellant was made the subject of a community payback order with a requirement of 100 hours of unpaid work and a supervision requirement for 12 months. The appellant appealed against his conviction on the ground that the sheriff erred in directing the jury that the issue of the appellant having reasonable belief that the complainer consented did not arise in relation to the charge. The circumstances were that the appellant lodged a special defence of consent and reasonable belief in consent in advance of trial. The appellant’s position at trial was that the complainer was clearly consenting and there was no room for misunderstanding. Prior to charging the jury the trial sheriff raised the issue of reasonable belief with parties and indicated that reasonable belief in consent was not a live issue on the evidence and would direct the jury on that basis which she did:- “...But what I would say here in relation to [the special defence] is that you can disregard the part of it that refers to the accused having a reasonable belief in consent, because that’s not been a live issue in this case because the accused’s position here is that the complainer did consent.” It was submitted on behalf of the appellant that the sheriff erred in her direction to the jury by removing from their consideration the question of the appellant’s reasonable belief that the complainer consented. It was submitted that the jury were entitled to find his explanation why he considered the complainer to be consenting was reasonable even if it was wrong. On behalf of the Crown it was submitted that the complainer’s evidence was clear that she was not consenting and the appellant’s evidence was that she did consent and there was no ambiguity between them. It was further submitted that the law is clear and a direction by a trial judge on reasonable belief is not required unless the issue is live which it was not in the present case. It was submitted that there was no room for a speculative middle ground in light of the respective positions of the complainer and the appellant. Here the court refused the appeal. The court noted that the appellant took none of the steps referred to in section 16 of the 2009 Act to ascertain whether the complainer consented. The jury accepted the evidence of the complainer that she did not consent in which she stated that she told the appellant that he was making her uncomfortable and that she kept moving away from him but he persisted in his advances and the witness LT spoke to the appellant repeatedly trying to kiss the complainer on the neck and she kept telling him to stop and pulled herself away from him. The court reiterated under reference to a number of authorities, including Meek v HMA 1982 SCCR 613, Graham v HMA 2017 SCCR 497, Maqsood v HMA 2019 JC 45, RKS v HMA 2020 JC 235 and Nyiam v HMA 2022 JC 57 that a direction on the question of an accused’s belief that a complainer consented is only needed if it is a live issue on the evidence. The court stated that the complainer’s evidence was that she did not consent which was made clear to the appellant whose position in evidence was that she did consent and there was no basis on those accounts for a speculative middle ground that the appellant had believed on reasonable grounds that there was consent because he had not spoken to that in his evidence. In the circumstances the sheriff had been correct to charge the jury in the way she had and no misdirection occurred.