APPEAL AGAINST CONVICTION BY CATHAL KELLY AGAINST HMA

Factual and Procedural Background

On 8 and 9 November 2019, the Defendant was accused of repeatedly sexually assaulting the Complainer while she was asleep and after she awoke, involving digital penetration, touching of breasts, and rape. The charge was aggravated under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The Defendant was convicted after trial on 17 May 2023 and sentenced to four years' imprisonment, with no appeal against sentence.

The indictment included a prior charge concerning similar conduct on 23 and 24 October 2019, which was withdrawn at the close of the Crown case.

The Complainer described meeting the Defendant at a wedding in Ireland, subsequent intimate contact during a visit, and incidents of sexual contact without her consent while she was asleep. She ended the relationship on 7 November 2019. On 8 November, after the Defendant arrived at Edinburgh airport, they met and argued, with evidence including video footage capturing parts of their interactions and arguments on 8 and 9 November.

The Defendant admitted having sexual intercourse with the Complainer but claimed it was consensual and argued that the dispute about "waking her up" related to conversation, not sexual assault.

The trial judge allowed the jury to consider the Defendant's statements during the argument as possible admissions corroborating the Complainer's evidence.

Legal Issues Presented

1. Whether the Defendant's statements during the argument could properly be treated as admissions corroborating the Complainer's evidence of sexual assault and rape.
2. Whether the trial judge misdirected the jury by allowing them to treat those statements as corroboration of the offence.

Arguments of the Parties

Appellant's Arguments

• The trial judge erred in directing the jury that the Defendant's statements could amount to an admission of the offence.
• Although admissions need not be unequivocal, the only reasonable inference was that the Defendant admitted waking the Complainer by talking to her, not admitting to sexual misconduct.

Respondent's Arguments

• Whether an alleged admission can be corroborative is fact-specific and need only confirm or fit with the principal evidence.
• In context, the Defendant's comments could relate to having woken the Complainer by penetrating her digitally and with his penis, thus corroborating her evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court reaffirmed that admissions need not be unequivocal to be corroborative, but whether they amount to corroboration depends on the facts. The Court analysed the Defendant’s statements during the argument and concluded that the only reasonable interpretation was that the Defendant admitted waking the Complainer by talking to her, not admitting to sexual assault or rape.

The Court found that the trial judge erred by allowing the jury to interpret the Defendant’s statements as admissions of sexual misconduct. This misdirection allowed the jury to speculate beyond the plain meaning of the words, which was impermissible. The Court emphasised that the statements were not capable of amounting to admissions of the offences charged.

While there was sufficient evidence to convict without the alleged admissions, the potential importance of the misdirected evidence meant the misdirection was material, resulting in a miscarriage of justice.

Holding and Implications

The Court ALLOWED THE APPEAL and QUASHED THE CONVICTION.

The decision directly affects the Defendant by overturning the conviction due to misdirection regarding admissions. No new legal precedent was established beyond clarifying the proper approach to admissions as corroboration in this factual context.