Faryad Darbazi v. Her Majesty’s Advocate [2021] HCJAC 10

Note of appeal against conviction:- On 14 February 2020, following a trial at Glasgow Sheriff Court, the appellant was found guilty of a charge of penetrative sexual assault contrary to section 2 of the Sexual Offences (Scotland) Act 2009. On 13 March 2020, following the obtaining of a Criminal Justice Social Work Report, the appellant was sentenced to two years imprisonment. The appellant appealed against his conviction, the issue being the test that ought to be applied when determining whether to allow an accused to lodge a special defence in the absence of a timeous written notice of an intention to do so. In the present case after lengthy procedure, at the trial diet on 28 January 2020, the defence agent who had been instructed throughout withdrew from acting. The trial was adjourned until the following day, and then until 30 January, to allow the appellant to seek alternative representation. The court was advised on the latter date that a new agent had been instructed and the defence would be ready for trial on 3 February. On that date, the new agent moved the court to allow a special defence of incrimination to be lodged late. Shortly thereafter, after the appellant’s instructions changed, the second agent withdrew from acting. On 6 February, a new agent appeared for the appellant and advised the court that he had been instructed to withdraw the incrimination and to lodge instead a special defence of consent. On 7 February the incrimination was withdrawn and an attempt was made to lodge the new special defence of consent although late. The defence agent explained that when the appellant had originally been interviewed by the police he had been told by his agent that he did not require to provide his position until the trial and he had taken that advice literally and had not disclosed his defence until fully precognosed at the trial. His instructions to incriminate had been done in panic and his true position was one of consent. The Crown opposed the motion to allow the defence to be stated on the basis that the appellant had continually attempted to frustrate and delay the course of justice. The sheriff refused to allow the special defence of consent to be lodged stating that no cause had been shown to allow this second contradictory defence to be lodged late. On 11 February 2020 the trial called before a different sheriff and a compatibility issue minute was tendered in which it was contended that the refusal to allow the special defence of consent meant that the appellant was prevented from properly presenting his defence contrary to Article 6 of the European Convention. The sheriff refused to allow the compatibility minute to be received. The appellant was subsequently convicted, having not given evidence. It was submitted on behalf of the appellant that 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. Section 78 of the Criminal Procedure (Scotland) Act 1995 requires a plea of special defence to be lodged at or before the First Diet failing which “on cause shown”. No “special” cause was needed and the sheriff had erred in holding that cause had not been shown. No prejudice arose to the Crown in the late lodging and the remedy for late lodging was an adjournment. It was submitted that a failure on the appellant’s part did not mean that cause had not been shown and cause would be shown if the allowance of the late defence had been in the interests of justice (Murphy v HMA 2013 JC 60) and here it was in the interests of justice for the appellant’s defence to be advanced and put to the jury. It was further submitted that the appellant’s Article 6(3)(d) rights had been breached, namely, the right to examine witnesses against him and to secure the attendance of witnesses on his behalf. On behalf of the Crown it was conceded that there were difficulties with the decision to refuse to allow the special defence of consent to be received, however, it was submitted that to allow such an extreme change in position so late in the day may not be in the interests of justice. Here the court allowed the appeal. The court stated that “cause” had been shown as explanations had been offered to the sheriff, albeit he did not accept them. The court stated at paragraph 20:- “…Ultimately, whatever the explanation for the late change of position might be, the test must be where the interests of justice lie…”. An issue the sheriff had to consider was whether the change in the appellant’s position would result in any potential prejudice to the prosecutor or the complainer, however, no such prejudice was identifiable. The court considered that the key issue to be addressed by the sheriff was what was in the interests of justice and he failed to do so and he only considered the issue of whether cause was shown in the explanation offered for failing to timeously lodge the special defence. As such, the court went on to consider the consequences of the sheriff’s error. The court noted that in effect the appellant had been prevented from stating his defence and the interests of justice required that to be allowed and the court considered that a miscarriage of justice occurred and quashed the conviction.