AA v HMA [2021] HCJAC 9

The appellant was convicted after trial of two charges of sexual assault contrary to section 3 of the Sexual Offences (Scotland) Act 2009. The first charge related to an event on the 11th of August 2018 in respect of complainer A that whilst she was intoxicated through drugs and alcohol, that the appellant had unfastened her clothing, touched her vagina and attempted to cause her to touch his penis. The second charge was that on the 14th of December 2018 in respect of complainer B, the appellant had unzipped her clothing and touched her vagina whilst she was asleep and this not capable of giving or withholding consent. A co-accused was convicted of raping complainer A at the same time and place of charge 1.

The appellant appealed his conviction on a single ground. The ground was that the trial judge had misdirected the jury by failing to address the issue of reasonable belief that complainer A was consenting stating that it had been a live issue at trial. The trial judge in his report stated that in his view the matter of reasonable belief was not a live issue in charge 1 based on the evidence.

In relation to charge 1, the appellant had given evidence about consensual acts being initiated by the complainer. On appeal, it was argued that it could be inferred from the evidence given that the appellant had a reasonable belief that the complainer A was consenting. Transcripts of the evidence of A and the appellant were sought to assist the court in its decision.

The transcripts demonstrated that the position advanced by the defence was a situation where the complainer is clearly consenting and there is no room for a misunderstanding (as in the case of Maqsood v HMA 2019). There was no suggestion that there was a reasonable belief but that the complainer’s consent had been demonstrated to the appellant through her active and willing participation.

The appeal was therefore refused as there was no basis for the argument that reasonable belief in consent was a live issue in the trial.