Basharat Khan v. Her Majesty’s Advocate [2020] HCJAC 17

Note of appeal against conviction:- On 6 June 2019, following a trial at Edinburgh High Court, the appellant was convicted of a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The appellant’s co-accused was acquitted of a separate charge of raping the same complainer on the same date at the same locus. Following his conviction the appellant was sentenced to 6 years imprisonment. The appellant appealed against his conviction it being contended that the trial judge gave inadequate directions to the jury in relation to the adoption of prior statements. It was submitted on behalf of the appellant that the evidence of the complainer and a witness, AS, in relation to the prior statements put to them had been confused and that the directions given by the trial judge were not appropriate. It was submitted that neither witness had adopted their respective statements in the way characterised by the trial judge who indicated that both had adopted their statements. It was submitted that the question of whether or not a particular witness adopted their statement was a matter for the jury and not a matter for the trial judge. It was necessary for the jury to be directed about how to consider the evidence of adoption or not and the consequences of the decision they made in relation to the available evidence. It was submitted that these were material misdirections which resulted in a miscarriage of justice. On behalf of the Crown it was conceded that what the trial judge had said in her directions regarding prior statements was inaccurate as it could not be said that what AS said in evidence resulted in the adoption of her earlier police statement. In relation to a critical piece of evidence relating to the question of whether the appellant had been wearing a condom and whether the complainer adopted what she said in her police statement the evidence was confusing and the jury ought to have been directed that the issue of whether a statement was adopted by a particular witness was a matter for the jury rather than the trial judge. It was submitted on behalf of the Crown, however, that the purpose of the putting of the statements was to challenge the credibility and reliability of the evidence provided, rather than with the intention to secure adoption of the content of the statements and no part the Crown case in relation to sufficiency was dependent upon adoption of prior statements as such no directions on adoption were necessary and in directing the jury that the witnesses had adopted their statements that error was in the appellant’s favour and there had been no miscarriage of justice. Here the court refused the appeal, however, the court considered that the directions in relation to prior statements were deficient in a number of respects, in particular, that the question of adoption ought to be left to the jury to determine. The court went on to consider how the misdirection effected the evidence given in light of the nature and purpose of the cross-examination of the witnesses. The court went on to comment about the use to which prior statements were put to during the course of the trial and the limitations of the use of such prior statements. In particular, it was noted that there was reference to what had been said in a prior statement being an accurate account of events which does not fall into either examination of whether the witness had given a prior inconsistent statement, permissible under section 263(4) of the 1995 Act, nor was it seeking to secure adoption, either permissible at common law or under section 260 of the 1995 Act. Some criticisms were made of the way in which prior statements were used by counsel for the appellant with the court observing that it would have been difficult to follow the appellant’s position from the cross-examination of the complainer as at one point it was suggested that she told the police the truth when she gave a statement which included that the appellant was not wearing a condom and ejaculated inside the complainer, however, it was then put to the complainer in cross-examination that the appellant never had sexual intercourse with her. The court considered that whilst the directions in relation to adoption were unnecessary, they had been in favour of the appellant. In relation to the witness AS reference was again made to the purpose and extent of the cross-examination of AS with reference to his police statement by counsel for the appellant and to the confusing nature of what was being sought to be achieved. The court noted that it is the duty of counsel and the trial judge to ensure that a witness is able to fully understand what he or she is being asked to comment upon. The court considered that AS was asked a number of ambiguous questions which resulted in there being no meaningful adoption on the part of the witness and that any misdirections by the trial judge benefitted the appellant.