Crown wins appeal against trial judge’s decision not to accept argument to respond to submissions in Dundee rape trial
A Crown appeal against a trial judge’s decision to accept a no-response submission on behalf of a man accused of raping a woman in a Dundee hotel has been allowed by the Court of criminal appeal to the High Court of Justice.
The respondent, MMI, was acquitted of a charge of contravening section 1 of the Sexual Offenses (Scotland) Act 2009 on May 13, 2022. The trial judge backed an unanswered submission on the third day of a trial at the High Court in Edinburgh.
The appeal was heard by the Lord Justice General, Lord Carloway, seated with Lord Pentland and Lord Matthews. Edwards QC appeared for the Crown and G Ross, solicitor, for the respondent.
During the trial, evidence was presented by the plaintiff, a bartender at the Shotz Pool and Snooker Club where the plaintiff and the respondent were seen together, and a taxi driver who had refused to take the plaintiff and the respondent at the Indigo Hotel in Dundee where the alleged offense took place. Testimonies were also given by the hotel receptionist and two police officers who showed up at the hotel after responding to a call from the taxi driver.
The Complainant recalls being separated from her friends after a drinking spree in Dundee and then going to the pool bar with the Respondent, whom she had never met before. She had no memory of going to the hotel or what happened in the bedroom, but remembered waking up without wearing any underwear. It was agreed at trial, based on scientific and medical evidence, that there had been sexual intercourse.
All of the Crown witnesses described the complainant as having been slightly to very intoxicated, with CCTV footage showing her being very unsteady on her feet. The complainant’s blood alcohol level was estimated at between 265 and 340 mg per 100 ml at the time of the incident.
The trial judge’s position was that it was not sufficient that there was sufficient evidence of high-level intoxication to draw the necessary conclusion that the complainant was incapable of consent. She disagreed that it was only when there was no evidence from which that inference could be drawn that a non-answer argument should succeed. The Crown took issue with the trial judge’s approach to the evidence on appeal.
Expressing the opinion of the court, Lord Carloway observed: “It is important to note at the outset that a judge has no power to order a jury to return a verdict of not guilty on the ground that no reasonable jury could not convict. When no issue of corroboration arises (and there is none here), it is only when there is no evidence from which a jury can infer that a fact at issue is evidence that a lack of response can be sustained.
He continued: “When it comes to a question of capacity to consent, that is, to come to ‘free agreement’, it will seldom be open to a judge to sustain a submission where the testimony is that of a young woman, ‘alone at night and vulnerable by drink, [who] is picked up by a stranger who has sex with her a few minutes after meeting her”. This is only a partial quote from Hallett LJ in R v H (E&W Court of Appeals, 2007) [but] the court agrees with Hallett LJ that issues of consent and capacity to consent should normally be left to the jury to decide. So that’s the case here. »
Reviewing the trial judge’s approach to the case, Lord Carloway said: “The court is unable to accept the trial judge’s assessment of the evidence and the conclusions which may be drawn therefrom. . First, as the trial judge acknowledged, there was more than enough evidence to prove that the complainant was seriously intoxicated. Toxicology itself has demonstrated very high levels of alcohol, sufficient in many people to induce a comatose state or even cause death.
He went on to say, “A taxi driver was so concerned about the complainant’s condition that he phoned the police and told them where she and the respondent were going. The only reason for doing so was because of his apprehension of what might happen to the Complainant in her apparent condition.
Lord Carloway concluded: ‘When the police arrived at the hotel, the complainant could not remember what had happened to her just minutes before. She was confused and incoherent. All of this is sufficient for a jury to infer that at the time of the admitted act of sexual intercourse, the complainant was not capable of consenting to that act.
The court therefore dismissed the request for non-response and sent the case back to the trial judge for further proceedings.