APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: C631/96
OPINION OF THE COURT
delivered by LORD MARNOCH
NOTE OF APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Appellant: Duguid; George Mathers
Respondent: P. Brodie, Q.C., A.D.; Crown Agent
25 June 1999
In this case the appellant was convicted of indecently assaulting the complainer by holding her by the face, kissing her on the mouth, forcing his hand up her skirt, placing his hand under her underwear, and thereafter forcing her to masturbate him and emit semen upon her. In the course of his own evidence the appellant accepted that he had kissed the complainer on the mouth. He also accepted that the complainer had masturbated him to the emission of semen. This, however, was with the important, not to say vital, qualification that, according to the appellant, these acts had been carried out with the full consent and co-operation of the complainer. In that state of affairs, and viewing the reference to masturbation as the gravamen of the Charge, the sheriff was, we think, well entitled to say to the jury, as he did, that "The question is perhaps whether it was an assault or not...". In that regard, the complainer having spoken to the elements of force contained in the charge, the Crown relied, for corroboration, on evidence of the complainer's subsequent distress as spoken to by her boyfriend.
The sole ground of appeal before us reads as follows:
"There was insufficient corroboration of the complainer's evidence. The Crown looked to her distressed state to afford corroboration but the distressed state could equally have been referable to the fact that she lied to her boyfriend as to any allegation of misconduct by the appellant".
Recognising, perhaps, that the ground of appeal, as stated, was really a matter for the jury Mr. Duguid, for the appellant, in fact submitted that evidence of distress could never, in a case such as the present, corroborate the use of force and further submitted that, even if he was wrong about that, the sheriff had in any event misdirected the jury as to the proper use to which such evidence could be put.
Leaving aside, for the moment, the departure from the written ground of appeal we deal with each of these submissions in turn.
As to insufficiency of evidence, Mr. Duguid submitted that, so far as the evidence of distress was concerned, the present case was quite different from the crime of rape in that rape involved penetration of, and potential injury to, the complainer and also an element of activity on the part of the accused. In our opinion, however, these differences are, in the present context, quite meaningless and we see no reason whatever why the evidence in question should not corroborate the evidence of the present complainer as to her lack of consent to the appellant's conduct and the use of force by him in exactly the same way as such evidence is used in cases of rape. In that connection we refer to the recent full Bench decision in Smith v. Lees 1997 S.C.C.R. 139. In that case, while the court decided that evidence of distress could not corroborate the carrying out of physical acts of indecent assault, the opinions make it clear that it can still be used to corroborate, in an appropriate case, evidence of a lack of consent on the part of the complainer to the accused's conduct and the use of force by him. It is, perhaps, as well to note that a lack of consent and the use of force are not invariably the opposite sides of the same coin but, in the present case, there is simply no room for any "half-way house". The appellant's evidence was to the effect that the complainer enthusiastically took the initiative in all that transpired. Accordingly, once the jury disbelieved that version, they were left only with the complainer's account involving the use of force. For these reasons Mr. Duguid's first submission is, we think, without substance.
So far as Mr. Duguid's second submission is concerned, it is true that some of the phraseology employed by the sheriff derives from the case of Stobo v. H.M. Advocate 1993 S.C.C.R. 1105 which was overruled by Smith v. Lees cit. sup. This is hardly surprising since the latter case was not decided until some months after the Sheriff delivered his charge. Nonetheless, in the circumstances of the present case, as described above, we are of opinion that what the Sheriff said about distress could only have been understood by the jury as relating to the state of mind of the complainer and thus as being in accord with Smith v. Lees. Accordingly this second submission by Mr. Duguid also fails.
In the result, the appeal against conviction is refused.