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Court points to trial impropriety on both sides as rape conviction upheld

25 January 2018

Crown and defence counsel have both come in for criticism by the Criminal Appeal Court as it refused an appeal by Amir Bakhjam against his conviction for rape.

The advocate depute at trial was faulted for having potentially indicated to the jury that he retained a suspicion that the acused had administered a drug for the purposes of engaging in sexual activity which followed, although he had deleted a libel to that effect from the indictment. It was also improper for defence counsel to refer to a special defence of consent, annd to the accused's position being that the complainer had consented, when no evidence had been led to that effect.

The crime was said to have taken place after a night out involving the accused, the complainer and her partner CK, during which the complainer had got very drunk. When CK attempted to get the complainer home, she argued with him in the street, and to avoid a scene he put her in a taxi with the accused and asked him to take her to their home. However the accused took her to his own flat, where the alleged rape occurred. The complainer did not remember anything between the nightclub and the accused's flat, but remembered being naked in a bed there with the accused on top of her and having sex. She passed out again and when she woke, she asked the accused if they had had sex. According to the defence he had answered "Do you not remember?" The complainer said he told her she had been paralytic and he had had to carry her upstairs.

A recreational drug was found in the complainer's urine; it was not possible to determine its likely effect when combined with alcohol, and there was also no direct evidence of administration by the accused, or toxicology to demonstrate that it might have been taken while the complainer was in his company. The Crown deleted the libel to that effect, but in addressing the jury the advocate depute referred to "a suspicion that the accused might have given her it. But, of course, a suspicion is not good enough in this court ladies and gentlemen... But it’s still relevant because there’s a drug in her system which, according to the joint minute of agreement, may have had some sort of additional effect on her and that helps you assess the level of her intoxication".

The accused did not give evidence, but his counsel in her speech said that the remark "Do you not remember?" was "eloquent of somebody who, at the very least, reasonably believed that she was consenting". She also referred to evidence of a phone conversation when the accused had said that intercourse had been consensual, "Because that’s what he understood it to be".

On appeal it was argued that it had been oppressive to libel administration of the drug, but Lord Justice General Carloway, who sat with Lords Brodie and Turnbull, said in delivering the opinion of the court that oppression was a preliminary plea in bar of trial and the proper question now was whether there had been a miscarriage of justice.

On the inclusion of the deleted libel he stated: "A misjudgment on the part of Crown counsel in approving the prosecution of a particular offence does not, per se, amount to impropriety, although instructing a libel which is known to have no evidential basis will almost certainly do so... In this case, it was decided, in apparent good faith, that [the evidence] could lead to an inference that the drug had been administered deliberately by the appellant in the course of the evening with a view to stupefying the complainer. At least with hindsight, and perhaps before then, a more studied appreciation of the evidence would have led Crown counsel to the view that that position was unsustainable."

Regarding the address to the jury, "the remarks of the advocate depute, when seen in print, are at best careless and at worst dangerous in so far as they might be interpreted as meaning that, although he was withdrawing the relevant part of the libel, he (as the Crown’s representative) retained a suspicion that the appellant had nevertheless administered the drug for the purposes of engaging in the sexual activity which followed. In so far as that is one interpretation of the advocate depute’s speech, there can be no doubt that it was an improper statement".

However it did not inevitably follow that a miscarriage of justice had occurred. For that to have been so, "the remarks would have to have been capable of having a material bearing upon the jury’s verdict". The critical issue was whether the jury were satisfied that the complainer’s state of intoxication was such that she was unable to consent to sexual intercourse, and there was sufficient unchallenged evidence from which the jury could not have had any reasonable doubt other than that she was incapable of giving consent.

Lord Carloway added: "In so far as the jury may have been given an impression of the Crown’s lingering suspicion, that could only have had a conceivable bearing, as reflecting on the appellant’s character, if the appellant’s own credibility and reliability had been put in issue. It was not. For all these reasons, the appeal against conviction is accordingly refused."

However there was also "a general troubling aspect about the way in which the jury were asked to proceed both by counsel and the trial judge... where there is no evidence: (a) that the complainer consented to intercourse; and (b) that the appellant had any reasonable belief that she had so consented, there ought to have been no room for any consideration of a special defence of consent. The only issue for the jury would be whether they accepted the evidence of the complainer’s incapacity as credible and reliable and were thus satisfied that the charge had been proved beyond reasonable doubt".

He commented: "The statement by defence counsel that the appellant’s special defence of consent was giving advance notice 'of what he’s saying happened' was improper, as was the statement that the defence meant that 'He is saying that she consented, or he reasonably believed she consented'. The special defence was, as the trial judge correctly directed the jury, simply advance notice of a line which the defence might follow. It did not amount to any form of statement by the accused."

Concluding, he stated: "Where no evidence is led of such a 'position' or of facts from which it can reasonably be inferred, no amount of cross-examination or references to it in a speech to the jury or elsewhere make it so. Again, leaving aside the obscure conversation on the phone, there was no evidence that sexual intercourse had taken place whilst the complainer was awake and an active, willing participant. The jury ought not to have been given any other impression of the state of the proof."

Click here to view the opinion of the court.


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