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Appeal Successful After Sheriff Refuses To Allow A Late Special Defence

Faryad Darbazi v HMA [2021] HCJAC 10

On the 14th of February 2020, Mr Darbazi was found guilty of a charge which read:

“on 17 December 2018 at Caspian Kebabs Takeaway Restaurant, …Glasgow, you… did sexually penetrate the vagina of [OS]… and did place your arms around her body, manoeuvre her into a booth and repeatedly digitally penetrate her vagina; CONTRARY to Section 2 of the Sexual Offences (Scotland) Act 2009”.

The appellant was thereafter sentenced to two years imprisonment on the 13th of March 2020. The appellant appealed based on the Sheriff’s refusal to allow the lodging of a special defence late.

At the First Diet on the 14th of December 2019, the appellant’s position was that if the crime was committed then it was not by him. As a result no special defence of consent was lodged nor a s275 application which would allow the solicitor’s to ask the complainer certain matters which would have otherwise been prohibited. On the 28th of January 2020 the solicitor withdrew from acting at the trial diet – the reason was not recorded. A new solicitor was instructed the following day and a trial diet was set for the 3rd of February 2020.

On the trial diet the agents submitted a special defence of incrimination and had asked for the Sheriff to allow it although late. The agent advised the Sheriff that he had been instructed to cite a the owner of the restaurant as an essential witness who was believed to be able to distinguish the appellant from another person who the appellant sought to incriminate. The motion was unopposed and was granted. The procurator fiscal had opposed the defence motion to adjourn the trial to the 6th of February had advised that the complainer and the incriminee would attend court the next day for precognition by both crown and defence. The opposition to the adjournment was withdrawn and thereafter granted. The live issue at court was not a matter of what had occurred but who the perpetrator was.

The complainer and incriminee attended court the following day and provided statements incriminating the appellant. The defence agent advised that at this stage a formal precognition was taken from the appellant and contrary to the position the court and the complainer had been advised of, the appellant accepted that he had been the member of staff involved with the complainer but contended that she had consented to the sexual act. As a result of this, the second defence agent felt obliged to withdraw from acting.

On the 6th of February 2020, a new, third defence agent appeared. The defence agent had been instructed to withdraw the special defence of incrimination and substitute it with a special defence of consent. The appellant’s bail had been withdrawn due to the shifting nature of the defence and it’s disruption to the court.

On the 7th of February, the defence agent advised the court that the solicitor who attended the police interview of the appellant had advised that the appellant need not state his position until trial. The appellant took this literally and did not disclose the nature of his defence until his precognition. The instruction to incriminate a colleague had been given in panic. The procurator fiscal opposed the motion to adjourn on the basis that the appellant had continually attempted to frustrate and delay the proceedings. The Sheriff thereafter refused the special defence of consent to be received although late on a lack of cause shown. The Sheriff stated that the appellant had deliberately and repeatedly failed to comply with his statutory obligation.

The trial was thereafter continued to the 11th of February before a different Sheriff. The appellant was represented by counsel. A compatibility issue minute was lodged which challenged the Sheriff’s decision to refuse to allow the late special defence of consent to be lodged and the refusal of a right to appeal that decision. The compatibility minute stated that the Sheriff’s decision meant that the appellant was unable to properly present his defence contrary to Article 6 of the European Convention. The minute requested the Sheriff allow the special defence to be received or to desert the trial pro loco et tempore. The Sheriff refused the minute. The handwritten record indicates that the Sheriff did not consider it appropriate to review the decision of a fellow Sheriff.

The trial finally proceeded on the 12th of February 2020. CCTV images shown to the court showed the complainer in an intoxicated state being guided to a booth at the back of the restaurant where a brief sexual activity occurred. The complainer left the restaurant shortly after, met her friends at a bar and a while later became distressed and told her friends what had happened. The appellant did not give evidence. The Sheriff gave directions to the jury and the jury found the appellant guilty.

At appeal, the appellant maintained his position that the refusal to allow the special defence of consent to be lodged although late meant that the appellant could not properly adduce evidence. Further stating that the Sheriff had erred in his decision. The appellant submitted that the remedy for late lodging was an adjournment and the Crown’s ability to cross examine on the point. The submissions further averred that the appellant’s right to a fair trial had been interfered with. The Crown advanced the argument that to allow an extreme change of position at a late stage would not have been in the interests of justice and that the appellant had an opportunity to present his defence under conditions which did not put him at a disadvantage meaning that the trial had been fair.

Lord Carloway in delivering the opinion of the court stated that:

“No matter how careless, or even deliberate, an accused’s actions may have been in failing to lodge the appropriate special defence timeously, cause is shown if it is demonstrated that it is in the interests of justice that the application to state the defence be granted.”

Lord Carloway continued in stated that there had been no suggestion that had the appellant been allowed to state his new special defence that there would have been a delay to the trial as no further lines of enquiry were required to be explored. The trial had not proceeded until almost a week after the first indication in any event. The complainer would have been asked about the issue of consent due to the nature of the offence. The court continued by stating that there is no legal bar against an accused person changing their position in advance of the trial.

The court concluded that the refusal to allow the appellant to state his defence represented a miscarriage of justice. The appeal was allowed and the conviction quashed.

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