A.W. and H.B. v. Her Majesty’s Advocate [2022] HCJAC 16


Notes of appeal against conviction:- Both appellants were convicted after trial at the High Court of a charge of rape relating to the same complainer in the same incident. The appellants appealed against their convictions on the grounds that the trial judge failed to direct the jury on the issue of distress, and its evidential significance, nor the issue of the medical evidence and its evidential significance, nor the issue of text/voicemail messages from the complainer, nor did the trial judge give the jury any directions on the use of prior police statements. At trial a joint minute was entered into in relation to scientific evidence re DNA findings which supported the first appellant having vaginal and/or anal intercourse and/or oral sex with the complainer and the second appellant having vaginal intercourse with the complainer. The Crown relied upon the complainer’s extreme distress to corroborate the complainer’s evidence as to her lack of consent. In addition, there was evidence of voicemails left by the complainer on her boyfriend’s mobile phone along with text messages.  There was also medical evidence to corroborate the complainer’s lack of consent. Special defences of consent were lodged on behalf of both appellants in advance of trial. Neither appellant gave evidence nor were any prior statements by them led in evidence, however, the special defences were not withdrawn, nor did the trial judge direct the jury to disregard them. It was contended on behalf of both appellants that the failures by the trial judge to give directions in relation to the matters referred to were material and resulted in miscarriages of justice. Here the court considered that the trial judge ought to have given the jury such directions and his failure to do so constituted material misdirections by omission and resulted in a miscarriage of justice and the appeals were allowed and the convictions quashed. In addition, the court also considered other aspects of the case, in particular, the issue of consent, reasonable belief and the section 275 applications which had been allowed in advance of the trial. The court was critical of the failure by those representing the appellants to withdraw the special defences of consent prior to them addressing the jury, albeit counsel for the second appellant made clear that she was not advancing any positive defence of consent or reasonable belief and the only issue was whether the jury was satisfied that the Crown had proved its case. The court also considered that the trial judge ought to have withdrawn them himself. The court was also critical of the section 275 applications which had previously been granted. In particular, evidence of previous sexual communication or contact between the parties was irrelevant to the issue of consent on the occasion libelled and the Crown ought to have opposed the applications and the court ought to have refused them. There was further criticism of what was said on behalf of the first appellant in what the court described as a general attack on the character of the complainer.