Appeal Against Conviction by Oluwatayo Dada (High Court of Justiciary)

Factual and Procedural Background

On 22 February 2024, a jury at Inverness High Court convicted the Appellant of two charges. Charge 1 concerned sexual assault of a minor at a school between August 2013 and June 2014. Charge 2 involved repeated acts of sexual assault and rape of another complainant 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. The jury unanimously convicted on charge 2 but deleted an averment of oral penetration. At an adjourned diet on 26 June 2024, the trial judge imposed an extended sentence of six years and six months on charge 2, comprising a custodial term of four years and six months and an extension period of two years. The Appellant was admonished on charge 1.

The Appellant appealed only against charge 2, alleging a miscarriage of justice due to defective representation. Specifically, the Appellant contended that video footage he recorded on his mobile phone during the encounter with the complainant should have been admitted as evidence. He asserted that his defence was not properly prepared or presented.

Legal Issues Presented

1. Whether the failure to admit the video footage recorded by the Appellant constituted defective representation amounting to a miscarriage of justice.
2. Whether the video footage was admissible evidence at common law or under the statutory provisions of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995.
3. Whether the Appellant was deprived of a fair trial by the manner in which his defence was conducted.

Arguments of the Parties

Appellant's Arguments

• The video footage taken on the Appellant’s mobile phone showed the complainant behaving comfortably and not displaying distress shortly after the first sexual encounter, supporting the defence of consent.
• The footage was admissible at common law as real evidence directly relevant to the issue of consent and did not depict sexual behaviour falling within the prohibition of section 274 of the 1995 Act.
• If the footage was considered sexual behaviour under section 274, an application under section 275 should have been made, as its probative value was significant and outweighed any prejudice to the administration of justice.
• The failure to lead this evidence represented defective representation, denying the Appellant a fair trial, as it was a material part of the defence that was not properly investigated or presented.
• Reliance was placed on case law including McIntyre v HM Advocate, Burzala v HM Advocate, Garrow v HM Advocate, and AJE v HM Advocate to support the proposition that failure to present a significant line of defence can amount to a miscarriage of justice.

Respondent's Arguments

• The footage was inadmissible at common law because it did not bear directly on a fact in issue, namely contemporaneous consent to the sexual acts charged.
• Evidence that runs parallel to a fact in issue and addresses collateral matters is inadmissible.
• Because the footage was inadmissible at common law, it did not require consideration under sections 274 and 275 of the 1995 Act.
• Even if admissible, the footage depicted sexual behaviour not forming part of the charge and was therefore prohibited without a section 275 application, which was not made.
• The defence was presented according to professional judgment, and decisions not to lead the footage were reasonable and responsible.
• The Appellant was not deprived of a fair trial, and the failure to lead the footage did not amount to defective representation or a miscarriage of justice.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reviewing the video footage, noting its poor quality and that it did not clearly reveal the complainant's emotional state, although she was not overtly distressed. The Appellant's defence of consent was fully before the jury, with witnesses cross-examined and the Appellant giving evidence to that effect. The trial judge directed the jury accordingly.

The court emphasized the established legal principle from Anderson v HM Advocate that an accused's right to a fair trial involves having the defence presented to the court. However, how the defence is presented is a matter of counsel's professional judgment, and an appeal on grounds of defective representation requires a showing that the defence was not presented at all or was conducted in a manner no competent counsel could reasonably adopt.

The court found that the decision not to lead the footage was a reasonable exercise of professional judgment by senior counsel, who had advised that the footage was likely inadmissible under sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. The footage depicted sexual behaviour not forming part of the charged offence and thus required a section 275 application, which was not made. The court accepted that the footage had limited relevance to the crucial issue of contemporaneous consent and that the risk of prejudice and affront to the complainant's dignity weighed against its admission.

Even if the footage had been admissible, it would have been only a minor additional piece of evidence, not sufficient to demonstrate defective representation or a miscarriage of justice. The defence of consent was properly before the jury, who were entitled to assess the credibility of the complainant and the Appellant.

The court also addressed a trial judge's misdirection regarding corroboration, noting it was favourable to the Appellant and did not affect the verdict. The court reminded judges of the importance of accurate directions in law.

Holding and Implications

The appeal is refused.

The court held that the Appellant was not deprived of a fair trial and that the failure to admit the video footage did not amount to defective representation or a miscarriage of justice. The defence of consent was properly presented and considered by the jury. The decision confirms the narrow scope of defective representation appeals, emphasizing the deference given to counsel's professional judgment in conducting a defence. No new precedent was set beyond reaffirming existing principles on admissibility of evidence and appellate review of representation. The direct effect is that the conviction and sentence on charge 2 stand.