Oluwatayo Dada v. His Majesty’s Advocate [2025] HCJAC 21

Note of appeal against conviction:- On 22 February 2024, following a trial on indictment at Inverness High Court, the appellant was convicted of two charges:- (1) sexual assault of XX at a school between August 2013 and 30 June 2014; and (2) repeated sexual assault and rape of YY at the appellant’s flat on 19 and/or 20 October 2021 contrary to sections 1, 2 and 3 of the Sexual Offences (Scotland) Act 2009. In relation to charge 2 the jury deleted reference to oral penetration. On 26 June 2024, following the obtaining of a Criminal Justice Social Work Report, the appellant was sentenced to an extended sentence of 6 years and 6 months on charge 2, comprising of a period of 4 years and 6 months imprisonment and an extension period of 2 years. The appellant was admonished in respect of charge 1. The appellant appealed against his conviction in respect of charge 2 it being contended that there has been a miscarriage of justice on grounds of defective representation, specifically that video footage the appellant took of the complainer on his mobile phone during their encounter ought to have been led in evidence and as a result his defence was not properly prepared and presented. The circumstances were that there was mobile phone footage which the appellant had which was taken in the immediate aftermath of the allegation forming charge 2 which the appellant contended supported his defence of consent in that the complainer was seen in a non-distressed condition whilst wearing only her pants and covering her breasts. At the appeal hearing it was the appellant’s position contained in an affidavit that the recording took place between episodes of sexual intercourse. Senior counsel who had represented the appellant at trial informed the court that it was his view, and shared by the instructing solicitors, that the footage was struck at by section 274 of the Criminal Procedure (Scotland) Act 1995 and would not have met the criteria in s275 and

the defence did not lodge the footage as a production at trial, nor was any application made under s275 to seek to lead it. On behalf of the appellant it was submitted the footage supported the appellant’s account that the sexual intercourse was consensual. It was submitted that it was relevant at common law being real evidence of what had taken place between the parties. It was further submitted that the footage was not struck at by section 274. In the event that the evidence did amount to “sexual behaviour” and a section 275 application was required, then the cumulative statutory test would have been satisfied. It was further submitted that a material part of the defence was not adduced as the appellant had been entitled to have done and in disregarding the appellant’s instructions to use the recording, the defence was conducted in a manner in which no competent practitioner could reasonably have conducted it and a miscarriage of justice had occurred. On behalf of the Crown it was submitted the footage was inadmissible at common law as it did not bear directly on a fact in issue or make a fact in issue more or less probable. The critical issue was whether the complainer consented to intercourse and footage of her taking a photograph of herself in between occasions of rape did not make it more or less probable that she consented to sexual intercourse at any of the material times as consent must be contemporaneous to any given sexual act and the footage shed no light on that issue. It was further submitted that even if the evidence was admissible at common law it was prohibited by section 274 and any section 275 application would not have satisfied the cumulative test in section 275(a)-(c). Furthermore, the appellant’s defence was not defective and he was not deprived of a fair trial as it could not be said that his defence was presented in a way that no competent counsel would present it, as it had been presented according to counsel’s professional judgement as explained to the appellant. Here the appeal was refused. The court noted that whilst the footage did not disclose the complainer appearing overtly distressed, the quality of it was insufficient to enable the court to form any clear view on her emotional state. The court noted that it was accepted on behalf of the appellant that his defence of consent was before the jury, the witnesses were cross-examined on that basis and the appellant gave evidence in support of his position and, as such, the appeal could not succeed as his defence had been put and his instructions were not disregarded. The court did, however, go on to consider the issue of the CCTV. The court observed that whilst there was no overt distress visible it is now well recognised that victims of sexual abuse may react in different ways and juries are reminded of the dangers of rape myths. The court stated that the footage would have had no relevance on the issue of whether the complainer consented to the later episodes, or whether any subsequent episodes resulted in her being distressed. The court considered that the footage which comprised of the appellant filming a woman naked but for her pants as she sought to cover her breasts with her hands was sexual behaviour and would be struck at by section 274. Furthermore, under reference to the case of P v HM Advocate 2022 SLT 194 the court viewed the recording as irrelevant and inadmissible at common law and that any section 275 application would be likely to have failed the statutory test. In a postscript to the opinion the court observed that the trial judge erred in directing the jury that there must be corroboration for both penetration and lack of consent as, following the Lord Advocate’s Reference No1 of 2023 2024 JC 140, corroboration is required for only two issues, namely, that the crime was committed and the identification of the accused. Judges were reminded to ensure that charges to the jury reflect the up to date position.