Taylor Diba v. Her Majesty’s Advocate [2015] HCJAC 123

Note of appeal against conviction:- On 2 March 2015, at Edinburgh High Court, the appellant was convicted after trial on indictment of a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. On 30 March 2015 the appellant was sentenced to five years imprisonment. The appellant appealed against his conviction on the grounds that:- (1) the trial judge had erred in repelling a submission, under section 97A of the 1995 Act, to the effect that there was insufficient evidence to prove the crime of rape as distinct from attempted rape. The complainer had been unable to say whether there had been penetration and the scientific evidence as to how T’s DNA could have been found on the appellant’s penis provided alternative explanations as to how T’s DNA was recovered from the appellant’s penis; and (2) that the trial judge had misdirected the jury in relation to an exchange of text messages between the complainer and T when he directed the jury to ignore them as being incompetent evidence in the case against the appellant and the appellant maintained that the texts amounted to prior inconsistent statements on the part of the complainer. On behalf of the Crown it was submitted that there had been sufficient evidence of rape once the appellant’s evidence was combined with that of the forensic scientist. It was further submitted that there could be no miscarriage of justice in relation to the text messages which could not be regarded as prior inconsistent statements by the complainer. Here the court refused that appeal. The court observed that T had accepted having consensual intercourse with the complainer and ejaculating inside her vagina and to the appellant then lying on top of the complainer and whilst she struggled, trying to insert his penis into her. Given that T’s DNA was in sperm found on the appellant’s penis 70 hours after the incident that was sufficient to allow the jury to draw an inference that the appellant’s penis had been in contact with the complainer’s vagina and that penetration had occurred. In relation to the text messages the court considered that as they were composed a lengthy period of time after the alleged incident and the content of them could not be said to be inconsistent with what the complainer said in evidence there was no evidential basis for leading them in evidence and the trial judge was correct to consider that the text messages were inadmissible.