APPEAL AGAINST CONVICTION BY AW AND HB

Factual and Procedural Background

The appellants were each found guilty of raping the complainer during the same incident at the flat of the second appellant in The City. Prior to going to the flat, all parties had spent time together at a nightclub. The complainer was intoxicated. A prior charge against the first appellant relating to unlawful intercourse when the complainer was 14 was withdrawn at the conclusion of the Crown case. Scientific evidence showed DNA consistent with the alleged sexual acts. Medical examination revealed healing abrasions and tenderness consistent with blunt force or penetrative trauma, though not indicative of consent or lack thereof. Consent was a live issue, with each appellant lodging a special defence but neither giving evidence. The trial judge did not withdraw the special defences and did not direct the jury to disregard them.

The primary issue at trial was the complainer's credibility and reliability. Text messages and voicemail evidence from the complainer to her boyfriend shortly after the incident were agreed by joint minute and introduced, revealing distress and some admitted inaccuracies by the complainer. The Crown relied on evidence of the complainer's extreme distress during a phone call, voicemail messages indicating distress, and medical evidence of bruising consistent with the timeframe of the alleged incident.

The trial judge gave directions on the need for corroboration from a separate source but did not specifically address the evidential significance of the distress, medical evidence, or the text and voicemail messages. Two procedural matters were raised involving section 275 applications concerning the admissibility of certain evidence relating to the complainer's prior sexual communications and behaviour.

Legal Issues Presented

1. Whether the trial judge erred in failing to direct the jury adequately on the evidential value and corroborative potential of distress, medical evidence, and communications such as text and voicemail messages.
2. Whether the trial judge misdirected the jury on the issues of consent and reasonable belief in consent, including the requirement for corroboration of absence of reasonable belief.
3. The appropriateness and admissibility of evidence admitted under section 275 applications relating to the complainer's prior sexual conduct and communications.
4. Whether the special defences should have been withdrawn or disregarded by the trial judge given the absence of supporting evidence.

Arguments of the Parties

Appellants' Arguments

• The trial judge failed to direct the jury on the sources of evidence available for corroboration and how to treat distress evidence and its evidential value.
• The judge did not address exceptions to the hearsay rule or the evidential value of voicemail and text messages.
• The medical evidence was not properly explained in terms of its corroborative potential.
• The trial judge’s charge was superficial and formulaic, failing to provide the jury with the necessary legal framework.
• The directions on reasonable belief in consent were incorrect, including the misdirection that absence of reasonable belief required corroboration.
• The section 275 applications allowed impermissible evidence that was irrelevant or inadmissible, leading to an egregious intrusion into the complainer's personal life.
• The solicitor advocate for the first appellant improperly presented a positive defence of consent and reasonable belief without evidential basis, amounting to a misdirection and improper submissions to the jury.

Respondent's Arguments

• The absence of specific directions on the matters raised did not constitute material misdirection or miscarriage of justice given the overall charge and context.
• The charge was adequate and in some respects advantageous to the appellants.
• The Advocate Depute addressed corroboration and credibility appropriately in speeches, and the jury was not misled.
• The Crown did not rely on inadmissible evidence for impermissible purposes.
• The trial judge’s charge, though brief, was sufficient when considered as a whole.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified manifest deficiencies in the trial judge's charge, particularly the failure to provide the jury with adequate directions on the evidential significance and corroborative potential of distress evidence, medical findings, and communications such as text and voicemail messages. The judge's omission to explain how such evidence could or could not corroborate the complainer's account was critical, as these were central issues for the jury's determination.

The court rejected the trial judge's rationale that medical evidence was neutral and that directions might unduly influence the jury, emphasizing that legal directions are necessary to provide the jury with the tools to properly assess the evidence without undue influence.

The court found the trial judge misdirected the jury on consent and reasonable belief, notably by stating that absence of reasonable belief required corroboration, contrary to established precedent. The judge also improperly attributed a consensual "position" to the appellants unsupported by evidence, failing to withdraw or disregard the special defences as required.

The court criticized the solicitor advocate for the first appellant for making improper submissions that a positive defence of consent and reasonable belief existed without evidential basis, and noted the trial judge's failure to correct these misdirections.

The court also condemned the allowance of impermissible evidence under section 275 applications, which led to an unjustified intrusion into the complainer's private life and confusion regarding the relevance and admissibility of such material.

Overall, the court concluded that the cumulative effect of these errors and omissions rendered the trial unfair, constituting a miscarriage of justice.

Holding and Implications

The appeals against conviction were ALLOWED.

The court quashed the convictions due to material misdirections and omissions in the trial judge’s charge, misapplication of the law on corroboration and reasonable belief, and the improper admission and use of evidence. The direct effect is that the convictions are set aside, and the appellants are entitled to a new trial if the prosecution chooses to proceed. No new precedent was established beyond the reaffirmation and application of existing legal principles regarding corroboration, consent, reasonable belief, and the management of special defences and section 275 applications.