ANDRIES VAN DER SCHYFF AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 67
HCA/2014/3237/XC
Lord Justice Clerk
Lady Paton
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
ANDRIES VAN DER SCHYFF
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: C M Mitchell; Faculty Services Ltd (for Beltrami & Co, Glasgow)
Respondent: Erroch AD; the Crown Agent
1 July 2015
[1] On 2 June 2014, at Inverness Sheriff Court, the appellant was convicted of a charge that, on 3 December 2012 at Inverness, he sexually assaulted SJ in that, whilst she was incapable of withdrawing or giving her consent, he removed her trousers and underwear and inserted his fingers into her vagina; contrary to section 3 of the Sexual Offences (Scotland) Act 2009. The jury deleted a reference to the complainer being asleep. The appellant was sentenced to 15 months imprisonment. His ground of appeal is that, having concluded that the complainer had not been asleep, no reasonable jury could have returned a guilty verdict given the nature of the sheriff’s directions on the issue of consent.
[2] The evidence was that, on 2 December 2012, the appellant had been celebrating his 22nd birthday with a group of friends. The party had started at the locus, which was the appellant’s flat in the city. It then moved to a pub before returning to the flat in the early hours of the morning. By the time the group returned, it comprised of some 15 people, including the complainer.
[3] The complainer gave evidence that she had not known the appellant well. He was older than her (she was 19). She did not find him attractive. She had not spent time with him alone that evening. She had consumed a large amount of alcohol over the course of the night. She had fallen asleep fully clothed on a sofa bed in the appellant’s bedroom at about 4.30am. Others had also been in the bedroom at the time. The complainer had been under the impression that her friend, NW, had fallen asleep with her. She had awoken to find the appellant taking her clothes off. The sofa had been turned into a bed and she was under a duvet. By the time that she had fully come to, her underwear had been removed by the appellant. He had started to touch her in the crotch area and had put his fingers inside her. She had not told the appellant to stop. She had done nothing because, as she put it, she did not know what to do. She did not know what was going on. She was still drunk. She had not agreed to any sexual activity. She had not touched the appellant or taken off any of his clothes.
[4] After a minute or so, the complainer made an excuse and went to the toilet, where she remained for a while before returning to retrieve her underwear and leaving the flat. Her friend NW had also been at the party. NW had left the flat at about 7am. She had tried unsuccessfully to shake the complainer awake before doing so. Another friend, NM, had left with NW. She described the complainer as asleep and not responding to either people or loud music.
[5] On leaving the flat at about 8 or 9am, the complainer had telephoned her friend, ER, who picked her up. She had gone to Miss R’s flat, where she had told her what had happened. Miss R described the complainer as being very upset, crying and still being drunk. The complainer telephoned her mother later that morning. Her mother picked her up at about 11am. Initially she had not been completely truthful with her mother, as she had been worried about her potential reaction. She eventually disclosed what had happened. Her mother had encouraged her to tell the police, which she did.
[6] The Crown’s position during the trial had been that the complainer had been asleep at the time of the assault and therefore incapable of consenting. However, in his address to the jury, the procurator fiscal depute modified the position by stating to the jury that they could delete the reference to the complainer being asleep. The central issue was whether, at the material time, the complainer had been incapable of giving her consent, for whatever reason. The advocate depute explained that the procurator fiscal depute had gone further and had indicated that the whole libel relating to incapacity was one which might have been deleted by the jury. There would still be a valid conviction, provided that the jury were satisfied that no consent had been given to the sexual activity.
[7] The appellant did not give evidence. He had, however, given a detailed police interview in which he had stated that he had left the flat at about 7am to get cigarettes. When he came back, the complainer was on the sofa. He had woken her and told her that he had to put the sofa into the bed position. He had climbed into the bed and she had moved across and they had cuddled. He had stroked her belly and put his hand down her pants, which she removed. He had stroked her vagina. She had made “noises of pleasure” and had “a climax of some sort” before going to the bathroom and then leaving, apparently in a rush. The appellant had therefore accepted that there had been sexual activity in terms of the libel, but maintained that it had all been consensual.
[8] The sheriff directed the jury that the crime of sexual assault involved three elements. The first was intentional or reckless touching of the complainer. There had, secondly, to be a lack of consent on the complainer’s part, and, thirdly, an absence of reasonable belief of consent on the appellant’s part. Each of these three elements had to be proved. Specifically on the issue of consent the sheriff continued:
“Now, consent, let me tell you what the Act says in terms. It says, ‘consent means free agreement’ and just so that we’re in no doubt, it goes on to say ‘circumstances in which conduct takes place without free agreement’ and it would say ‘where the conduct occurs at a time when the victim is incapable because of the effects of alcohol or any other substance. Where B agrees or submits to the conduct because of violence used, or because of threats of violence. Where B agrees or submits to the conduct because the victim is unlawfully detained. Where B agrees or submits to the conduct because he is impersonating somebody known personally to the victim’.
That is not what, none of that is what the Crown is alleging. The Crown has alleged that the person was asleep and therefore was incapable, and the Act is clear in section 14 ‘a person is incapable while asleep or … unconscious of consenting (sic)’.
… when we’re looking at consent, there’s the question of reasonable belief. In determining … whether a person’s belief as to consent was reasonable, ‘regard is to be had to whether the person took any steps to ascertain whether there was consent or, as the case may be, knowledge and if so, what steps were taken’.
… you have to consider whether he took any steps to check whether there was consent. Now, that doesn’t mean that you have to ask, and it has to be verbalised, and that clearly would be somewhat excessive. … the accused in his description of what was said is that he had lain down beside her and she’d turned towards him and had tapped him on the shoulder, or touched his shoulder.
So the consent does not have to be verbalised, but it certainly has to be a reasonable belief. But, again, as I said right at the very beginning, intentional act, lack of consent and the absence of a reasonable belief, that’s not for the accused to prove. That has to be proved by the Crown beyond reasonable doubt...”
The sheriff told the jury that they were entitled to delete parts of the charge, provided that what was left amounted to a crime.
[9] The appellant submitted that, having deleted the words “asleep and”, the verdict returned by the jury was not in accordance with the directions given, nor the evidence led. The jury should have understood the sheriff’s directions to mean that the only basis for a guilty verdict was if they found it proved that the complainer was asleep. Had there been a possibility of a lack of consent being proved otherwise, the sheriff would have had to have gone on to direct the jury further. The jury had no other basis for concluding that the complainer had not consented other than the libel of her being asleep.
[10] In the Case and Argument, the appellant attempted to raise an issue of whether the verdict was incompatible with Article 6 of the Convention. However, this does not feature as a ground of appeal (see Act of Adjournal Criminal Procedure Rules 1996, Rule 42(4)). In the absence of an explanation, other than a change in counsel, as to why the matter was not raised in the Note of Appeal, the court is not prepared to entertain a compatibility issue at this late stage.
[11] Under reference to Geddes v HM Advocate 2015 HCJAC 10, paragraph [4], the advocate depute submitted that the test for review of a jury’s verdict on the basis of unreasonableness had not been met. The jury had been entitled to accept that the complainer had not been asleep at the material time. It had been open to the jury to delete the incapability element entirely.
[12] The issue is whether, having not been satisfied that the complainer was asleep at the point of the sexual activity libelled, the jury were entitled to return a verdict of guilty based on the more general averment that she was, at that time, incapable of giving her consent. That issue is resolved on a consideration of her testimony. That testimony was that she had not consented to any form of sexual activity, nor had she done anything to encourage it, even if, in her state of drowsiness and intoxication, she had not positively resisted.
[13] The Crown had to establish, in terms of the statutory provision, and as the sheriff correctly directed the jury, that: the appellant had deliberately touched the complainer sexually (which is not in dispute); the complainer had not consented to the touching (which is what the complainer’s evidence was); and the appellant did not reasonably believe that she had consented. From the complainer’s testimony about suddenly wakening up to find the appellant removing her clothing and proceeding to touch her vagina, the jury were entitled to infer that no such belief existed. In that regard, they must be taken to have rejected the account of consensual sex, which the appellant had advanced in his police interview, and accepted the essentials of the complainer’s account.
[14] However the sheriff may have defined the Crown case in terms of the effects of alcohol, the complainer said that, at the material time, she was still drunk and had not known what was going on. It may be that the sheriff mis-stated the Crown case to the effect that it relied solely on the complainer being asleep to demonstrate a lack of consent, but the jury were entitled to proceed on the evidence which they had heard in light of the submissions made and the sheriff’s directions in law. The sheriff could have given a specific direction that the jury could have deleted the whole element of the libel in relation to capability of giving consent, but his general direction on that matter was sufficient. In these circumstances this appeal must be refused.