High Court allows appeal against conviction for rape and indecent assault

Lady Dorrian
Lady Dorrian

The High Court of Justiciary has allowed an appeal against conviction for charges of rape and indecent assault on the ground that the two charges were too materially different to mutually corroborate one another.

Aadam Mohammed was originally tried for three charges, two of rape and one of indecent assault, and was acquitted on the first rape charge. On appeal, he argued that the trial judge had erred in directing the jury that the remaining charges could mutually corroborate each other.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Glennie and Lord Turnbull.

Offers of wine

The first charge, of which the appellant was acquitted, and the second were both said to have been committed in a parked car somewhere in Perthshire, whilst the third was committed at the complainer’s house in Perth.

Charge 1 libelled rape whilst holding the complainer down and lying on top of her; charge 2 libelled an indecent assault by repeatedly touching the complainer on the leg; charge 3 libelled that whilst the complainer was asleep and incapable of giving or withholding consent he pulled down her clothing and raped her. The complainer in charge 2 was 17 at the material time, and the complainer in charge 3 was 20.

In respect of the indecent assault charge, it was said that the appellant and the complainer, along with a third party, had driven to a remote spot to smoke cannabis without detection. The appellant offered wine to the complainer, who refused it to the appellant’s frustration. After the third party fell asleep, the appellant repeatedly touched the complainer’s leg while they were both under a duvet to keep warm, while she pushed him away and moved away from him.

The remaining rape charge was said to have taken place after the complainer invited the appellant to her home. She had been introduced to him through a mutual friend, and both were going through a difficult patch in their lives. After they chatted and drank wine for a while, the complainer became sick and tired and lay down for a while to sleep.

When she woke up, she found that her jeans and pants were down to mid-calf and the appellant was lying next to her with his hand on her side. The complainer knew he had penetrated her because of how she felt, and when she went to the toilet she knew he had had intercourse with her.

The trial judge considered that, whilst indecent assault was a less serious offence than rape, the two charges were capable of mutually corroborating one another. Both cases took place at similar times of night, and the complainers were offered a bottle of wine that had been brought by the appellant in his car. In one case the complainer was trying to sleep and in the other the complainer was asleep.

The appellant submitted that the circumstances of charge 2 were so far removed from rape that this charge should have been withdrawn from consideration, notwithstanding the fact that no such submission to that effect had been made at trial.

It was also submitted that the jury should have been directed that if they acquitted on charge 1 they could not convict the appellant of the remaining charges. It was not enough to catalogue some similarities between two crimes and dismiss dissimilarities for mutual corroboration to apply. There had to be an overall similarity in the conduct identifying each charge as a component part in one course of criminal conduct persistently pursued by the accused.

Situation changed with rejection of charge 1

The opinion of the court was delivered by Lady Dorrian. On how mutual corroboration could apply to offences of differing levels of severity, she said: “There is no rule that what might be perceived as less serious criminal conduct cannot provide corroboration of a libel seen as more serious. The fact that the nature of the alleged criminality varies significantly in degree is not of itself a reason for disapplication of the doctrine. It is the underlying similarity of the conduct described in the evidence, not the label which has been attached to it in the indictment, which must be examined in order to see whether the rule can be applied.”

Applying this to the facts of the current charges, she said: “It appears that there was a sufficiency for all three charges at the close of the Crown case, largely because of the link which charge 1 provided to both the other charges. Charges 1 and 3 were both charges of rape, where the complainer had consumed an intoxicant, in one case alcohol and in the other alcohol and cannabis. The locus and general circumstances of charge 1 seem to be very similar to those in respect of charge 2.”

However, she went on to say: “The situation changed once the jury determined to reject the evidence in relation to charge 1. Having done that they were left with two charges where the nature of the allegations, the circumstances of commission and the locus were all quite different. The trial judge erred in saying that the complainer in charge 2 was trying to sleep, thus providing a link with the complainer in charge 3 who was asleep.”

Of the presence of alcohol in all three charges, she said: “In respect of charge 3 there is no indication that the appellant encouraged [the complainer] to drink in the face of her refusal. The Advocate Depute suggested that in all three cases the appellant provided alcohol and took none himself, a factor he relied on for establishing a unity of purpose across the charges. Were that so, that might have strengthened the link especially if associated with encouraging others to drink against their will, but we have no information to enable us to conclude that this was the case.”

For these reasons, the court was satisfied that if charge 1 was discarded it was not open to the jury to convict on the remaining charges. The appeal was therefore allowed.

© Scottish Legal News Ltd 2021

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