About this case:

• Citation:
  [2025] HCJAC 21
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Oluwatayo Dada was convicted at Inverness High Court of one charge of sexual assault and another of sexual assault and rape against complainers XX and YY in 2013 and 2021 respectively. On appeal he argued that his representative had failed to present video footage of the complainer that he took on his mobile phone during their encounter. No appeal was made in respect of charge 1.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Doherty and Lord Matthews. Paterson KC appeared for the appellant and Glancy KC for the Crown.

Immediate aftermath

YY, the complainer in charge 2, was a student and friend of the appellant’s. She was a practising Christian who did not believe in sex before marriage. On the evening on 19 October 2021, she visited the appellant at his flat, and during the visit he made sexual advances towards her. The complainer explained in evidence that she offered to perform oral sex on him to defuse the situation, even though she did not want to, in order to get out of having full vaginal sex with him.

Later, the appellant tried to digitally penetrate YY’s vagina and ask her for sex. She eventually gave in to his advances to the extent that she agreed to him rubbing his penis against her vagina, however he ignored her request for him not to penetrate her. The jury returned a unanimous verdict in respect of charge 2, under deletion of the references to oral penetration.

The appellant provided a short film clip taken on his phone, which he deponed was taken after the first time he and YY had vaginal sex. In the clip, YY, covering her breasts with her left arm, was holding her phone in front of her face with her right hand such that she appeared to be taking photographs and posing. The appellant maintained that this footage showed YY in the immediate aftermath of charge 2 and supported his defence of consent.

Senior counsel for the appellant, who was the appellant’s trial counsel, recalled seeing the footage but took the view, shared with the appellant’s solicitors, that it would be prohibited by section 274 of the Criminal Procedure (Scotland) Act 1995 and would not meet the criteria for admission under section 275. However, he elicited from the complainer during cross-examination that she was able to message someone during her time at the appellant’s flat as she had her phone, in an indirect attempt to undermine her evidence that she did not consent.

For the appellant it was submitted that the footage was admissible at common law as the behaviour as recorded was not sexual behaviour in terms of the Act. The Crown submitted that the appellant was not deprived of a fair trial and the footage did not have sufficient probative value to outweigh the reasonable judgments taken by trial counsel.

Professional judgment

Lord Beckett, delivering the opinion of the court, said of the nature of the recording: “We viewed the recording in preparation for the appeal. The view is not good enough to determine much about the complainer’s emotional state but we accept that she was not overtly displaying distress. The appellant’s point seems to be that she was acting normally, communicating with a friend on her phone and taking photographs.”

He continued: “Senior counsel conceded that the appellant’s defence of consent was before the jury, witnesses were cross-examined accordingly and the appellant gave evidence in support of it. Senior counsel recognised the difficulty this presents for his appeal. We also note that the trial judge reports that in his speech counsel offered the jury reasons why they should prefer the evidence of the appellant to that of the complainers.”

Evaluating whether a miscarriage of justice had taken place, Lord Beckett explained: “The appellant filming a woman naked but for her pants as she sought to cover her breasts with her hands was sexual behaviour. Senior counsel does not tell us so, but if he considered the decision of this court in P v HM Advocate (2022), he would have found some support for the view that the recording was irrelevant and inadmissible at common law.”

He concluded: “Even if we assumed that the recording was relevant at common law and would succeed under s275, all that the appellant might have gained is a further adminicle of evidence with which to attack the Crown case. This does not demonstrate defective representation. Counsel, exercising his professional judgment, decided not to seek to elicit that evidence: but he put the appellant’s defence of consent squarely before the jury.”

The appeal against conviction was therefore refused.