APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: C259/97
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
APPEAL AGAINST CONVICTION and SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: Ms. Scott; Balfour & Manson
Respondent: Di Rollo, A.D.; Crown Agent
8 July 1999
On 21 March 1997 the appellant was found guilty on a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971 in respect of his supplying temazepam (charge 1); and two charges of rape (charges 2 and 3). He was sentenced to eight years imprisonment on charges 2 and 3, and to six months concurrently on charge 1. His guilt in respect of charge 1 was not in dispute. He appealed against his conviction on charges 2 and 3. The original grounds of appeal were supplemented by additional grounds. In presenting his appeal Ms. Scott referred to written submissions and a summary of the evidence which she had prepared. We have found them to be of considerable assistance.
Before coming to the grounds of appeal it is convenient for us to set out an outline of the evidence which was led at the trial. The complainers on charges 2 and 3 were S (who was 17 years of age at the time of the trial) and C (who was 18 years of age). They lived at a children's home in Ayrshire. In September 1995 they were friendly with another girl, R. C was regularly seeing the appellant. She said in evidence that it was a relationship in which they regularly had sexual intercourse. R was the girlfriend of a man whose nickname was Weasel.
On 18 September 1995 S, C and R were out together. They met the appellant, Weasel and another man and went with them for a run in a car. During the course of that evening the appellant asked C for a "blow job" and she complied. Most of the company were taking temazepam in the form of "jellies".
S gave evidence that on 19 September she and R went out in the car again with the appellant and Weasel. The appellant bought Buckfast wine which they drank. He gave her jellies which she put in her pocket. R took some jellies. They went in the car to "a wee place in the middle of nowhere", which was about 3-4 miles from Coylton. The appellant got into the back of the car where she was sitting. R and Weasel were in the front. The appellant took off his trousers, pushed her round and down, took off her trousers and pants. She said "No" to him but he was too big. He held her down and had sexual intercourse with her. She said "No" and shouted on R. It did not go on for long. She told the others that she wanted to go home. R said that she should go to her father's house, and she would be all right. The car was driven to his house. The men left her, saying that they would come back in half an hour or an hour. In R's house were the father and his wife or girlfriend. She did not tell him about what had happened as she did not know him and he was a man. She telephoned a member of staff at the children's home from a telephone box near the house, and asked him to come and get her. He did not do so. She did not tell him what happened as he was a man. She told R she had telephoned the staff and was not going back in the car. She said she did not want to speak to R about the incident because she had not done anything. She did, however, go back in the car when it arrived two hours later. She said that she was upset. She was not crying but had been crying. When she returned to the children's home and was greeted by a member of staff she asked about two female members of staff and was told that they were not there. She went to bed. The next morning she confided in "wee John", a 13 year old boy, that she had been raped the previous night. He was the only person there whom she could trust. She thought that she was crying. The police came to the home in relation to another matter. She said something to them, but they ignored it. The next day at school she told C what had happened to her.
R said in evidence that she had drunk Buckfast wine and taken temazepam before "blanking out". In the car she was not aware of anything untoward happening to S. She did not see S crying or distressed. According to the second report from the trial judge she said that on the way back to the children's home S was crying, but said that there was nothing wrong. She just wanted to go home. Weasel also gave evidence that nothing wrong had happened in the car. The boy to whom S referred as "wee John" gave evidence that in the early hours of the morning S came into his room crying. She told him that someone had touched her up and wanted her to have sex with him and she did not want it. He had been "popping her with jellies", and she had not been wanting them.
C gave evidence that at about 10 p.m. on 20 September she and R met the appellant and Weasel at a bus stop where they arrived in the car. Another man was in the back seat. All of them went in the car to Logan. R and Weasel went off in the car. C and the appellant went to his house. In the livingroom he gave her temazepam which she took. She had been intending to have sexual intercourse with him that night. There was a knock on the window and the appellant told her to go upstairs. She went upstairs to his bedroom. Thereafter the appellant came upstairs wearing only his boxer shorts. He told her to take off her clothes. She did not want to do so. At that stage she did not want to have sexual intercourse with him. He took off her jeans and top. The other man came into the bedroom. While the appellant went downstairs for a drink he came on to the bed, and she started to kiss him. The appellant returned and insisted on having intercourse with her while the other man held down her arms. She was struggling and telling him to get off. Then the other man got on top of her and started to have sexual intercourse with her while her arms were being held by the appellant. Then the appellant had sexual intercourse with her again while the other boy held her arms. She was crying. When it was over they both stood up. They all got their clothes on. She walked out. She could not remember anything else. She told staff at the children's home what had happened and the police came. Brian McBride, a care worker at the children's home, described an occasion when C burst out crying on her bed, and told him that two men had had sex with her. He asked whether this had been forced upon her and she replied in the affirmative.
In this case there was no medical or forensic evidence that sexual intercourse had taken place with either complainer as she alleged. There was no evidence of any admission by the appellant to that effect. The appellant did not give evidence. As corroboration of the evidence given by the complainers the Crown relied on the Moorov principle.
The first ground of appeal which we require to consider is that there was insufficient evidence to provide corroboration on the basis of Moorov. Ms. Scott accepted that there were superficial similarities between the accounts given by the two complainers. However, there was a difference in the background to the events and in the relationship of each complainer to the appellant. C gave evidence that she had regularly had sexual intercourse with him and that she had intended to have intercourse with him on the night of 20-21 September. Ms. Scott went on to point out that the incidents occurred in different locations. In one case it was in a car and in the other in a house. There was a marked difference in the character and material differences in the manner in which the alleged rape was perpetrated. The incident in the car was short-lived. The incident in the house was prolonged and involved two men repeatedly raping the complainer. Ms. Scott submitted that standing these differences as between only two incidents, it was not possible for a jury to infer an underlying unity of intent.
The Advocate depute pointed out that both incidents involved young adolescent girls who were friends and came from the same children's home. Each had been given temazepam by the appellant prior to the alleged rape. The same car was involved in each case. In one it was the scene of the incident, and in the other it was the means of transporting the complainer to the place where it occurred. Accordingly, while there were differences, it could not be said that there was insufficient evidence to entitle the jury to find that each complainer, if accepted, corroborated the other.
In our view there was sufficient evidence to entitle the jury to convict. The jury had before them evidence which pointed to certain similarities as between the two incidents. While there were also certain dissimilarities, it cannot be affirmed that on no possible view were the similarities insufficient to enable the jury to determine that there was a connection between the offences which would, in the words of Lord Justice Clerk Aitchison in Ogg v. H.M. Advocate 1938 J.C. 152 at page 157, "justify an inference that they are instances of a course of criminal conduct systematically pursued by the accused person". In the present case, as in the case of Reynolds v. H.M. Advocate 1995 S.C.C.R. 504, to which we were referred by the Advocate depute, it was a question of fact and degree for the jury to assess. Accordingly we reject this ground of appeal.
Ms. Scott went on to submit that in a number of respects the trial judge had misdirected the jury. The first of these complaints relates to his directions in regard to the onus of proof. At pages 4F-5B he gave them directions as to the presumption of innocence and as to the burden of proof on the Crown, stating that it was not for an accused person to prove his innocence and that he or she need not give evidence. No exception is taken to these directions. At pages 5F-6A the trial judge went on to say:
"As I have said, an accused doesn't require to prove anything, and if there is any form of defence raised during the case through Mr. Thomson's cross-examination it is for the Crown to, in effect, disprove any defence, not for the accused to prove it".
Ms. Scott submitted that these words suggested that there was an onus on the accused to raise a defence. They also suggested that it was doubtful whether there was any defence. The trial judge made no reference in his charge to the evidence of R and Weasel which had been relied on by the defence.
We are not persuaded that there is any substance in these criticisms. In our view the jury would not have understood that the trial judge was retracting his clear direction that the appellant did not require to prove anything. He was merely referring to whatever the defence raised in the course of cross-examination. Further we do not consider that his words would have been understood as casting any doubt on the existence of a defence. As the Advocate depute pointed out, the main significance of the evidence relied on by Ms. Scott went to the credibility of the evidence given by S in regard to charge 2. There was no evidence, direct or indirect, from the appellant as to his innocence.
At a later stage in his charge the trial judge said at pages 8F-9E:
"Ladies and gentlemen, now the rules of burden of proof and proof beyond reasonable doubt and corroboration which I have just been going through, I should emphasise apply only to the Crown case, different rules apply to the defence, because, as I have said, the accused doesn't need to prove anything, and there is no requirement for defence evidence to be corroborated. Well in this case there is no evidence for the defence.
In that connection, ladies and gentlemen, I have to direct you that you must not draw any adverse inference from the mere fact that the accused himself didn't give evidence. However, if there is something in the Crown evidence which is crying out for an explanation and there is no explanation for the accused then, you might find it easier to draw a guilty inference from that piece of evidence because you have had no explanation. It is entirely a matter for you if the situation arises. All I am doing is to emphasise to you, is you must not draw an adverse inference from the mere fact that he has not given evidence".
Ms. Scott accepted that there could be special circumstances in which such a direction might be correct, but that did not apply in the present case. There was no substantial body of evidence "crying out for an explanation". There was evidence which was inconsistent with that of the two complainers. A direction of the type given by the trial judge required to be precise, and could be appropriate where the facts were peculiarly within the knowledge of the accused person. This was not a case in which the incidents occurred when the appellant was the only other person present.
In a number of cases such as Knowles v. H.M. Advocate 1975 J.C. 6, the court has adopted the observations of Lord Justice General Normand in Scott v. H.M. Advocate 1946 J.C. 90 at page 98 in regard to references to the accused's failure to give evidence:
"Although a comment of the kind is, in my view, competent, it should be made with restraint and only when there are special circumstances which require it; and, if it is made with reference to particular evidence which the panel might have explained or contradicted, care should be taken that the evidence is not distorted and that its true bearing on the defence is properly represented to the jury".
There have been cases in recent years in which the trial judge has been held to be justified in directing the jury that, in the absence of any explanation from the accused in regard to matters which were within his own knowledge, they might find it easier to draw the inference as to the guilt of the accused which the Crown had asked them to draw. This can be illustrated by Sutherland v. H.M. Advocate 1994 SCCR 80, which was concerned with a charge of culpable homicide caused by wilful fireraising. It is clear from the opinion of the court, which was delivered by the Lord Justice General (Hope), that it took the view that there were circumstances which were sufficiently special to justify the direction. It is plain that this was based on the existence of a substantial body of circumstantial evidence of various kinds from which the inference could be drawn that the appellant and another man set fire to the house deliberately. A similar situation can be found in McIntosh v. H.M. Advocate 1997 S.L.T. 1320, in which it was held that the trial judge was entitled to tell the jury, as he did, that in the absence of evidence from the appellant they might find it easier to draw the inference which they were invited by the Crown to draw. That was a case in which there was evidence as to the presence in the appellant's house of various articles from which his guilt could be inferred. As the trial judge reminded the jury, he was in a position to explain their presence.
In the present case the trial judge, according to his report, regarded his direction as being a standard one, which it plainly was not. We are quite unable to find any circumstances in the present case which could be described as sufficiently special to call for the type of direction which he gave. The Crown case was not based on circumstantial evidence, but on the evidence of the complainers, along with other evidence which the Crown relied on as supporting their credibility. It is not clear what the trial judge had in mind when he referred to the possibility that there might be evidence which, in the absence of an explanation from the appellant, could make it easier for the jury to draw an inference of guilt. We would have expected him to specify any such evidence in order to ensure that his remarks were not used in the wrong context or in the wrong way (cf. Mack v. H.M. Advocate 1999 S.C.C.R. 181).
We consider that in this passage the trial judge misdirected the jury. However, a miscarriage of justice was not caused thereby. The direction given by the trial judge was conditional upon "there being something in the Crown evidence which is crying out for explanation". While that direction might have had some practical consequences in another case, we do not consider that it had any content in the present one since it does not appear that there was any significant piece of evidence which could fulfil that description. The trial judge did not relate his remarks to any particular evidence about a matter peculiarly within the appellant's knowledge. In the particular circumstances of this case we do not consider that there was a real risk of the jury founding on the absence of an innocent explanation from the appellant in order more readily to draw an inference of guilt. It is moreover of importance to note that this relatively short passage in the charge began and ended with a clear direction that the fact that the appellant had not given evidence did not give rise to any adverse inference against him.
Thereafter in his directions the trial judge turned to the charges which were before the jury. In the course of doing so he directed them as to the requirements for proof of a charge of rape, stating that it was for them to consider whether they were satisfied that the vaginas of the complainers had been penetrated by the appellant's penis and that the will of the complainers to resist had been overcome. He then proceeded to deal with these two requirements in turn. He stated at pages 12D-13D:
"Now, can I deal, first of all, with the aspect of overcoming will. I want to deal with these two aspects, overcoming will and penetration, to some extent separately. Now, dealing first of all with overcoming of the girls' will. Both girls gave evidence that they were unwilling to have sex on these occasions and that their will was overcome at the time that it was overcome. And, as I say, you must have corroboration.
Now, ladies and gentlemen, I can direct you that it is open to you to regard the evidence of their distress after the event as corroboration of their account of events and, in particular, as corroboration of their evidence that their will was overcome. But, if you are going to do that, ladies and gentlemen, you have to be satisfied that the distress which the girls showed after the events was due to, or at least partly due to the fact that their will was overcome -- the circumstances of the crime -- and not to other factors, such as shame or remorse or fear that their boyfriend will find out, or something like that. You have to be satisfied that the distress was caused by their will being overcome, by being raped, in other words".
Ms. Scott presented three submissions in regard to that passage and the evidence to which it bore to relate. Firstly, she pointed out that the only person who spoke to a complainer being distressed was wee John and his evidence was at odds with that of the complainer who gave evidence that she told him that she had been raped. Further, while the complainer claimed in her evidence that she was upset but was not crying when she was going back to the children's home, R said that she had not seen S crying or appearing to be distressed. That evidence should be considered in the light of evidence that the complainer had met two adults in the house of R's father; that she had spoken on the telephone to a member of the staff of the children's home; and that on returning to the home she spoke to a member of staff and then to the police. There was no evidence of any distress being shown by her at these times. Ms. Scott pointed out that the trial judge in his report indicated that an explanation for her delay in showing any distress could be inferred from the evidence, the explanation being that wee John was the first person encountered by her whom she could trust. Ms. Scott submitted that there was no evidence led to explain the delay. The relevance of a first natural confidant was in the context of the admission of de recenti statements and not the showing of distress. In these circumstances Ms. Scott submitted that the interval of time and the opportunity of contact with others was such that any evidence of distress spoken to by other witnesses was too remote to afford corroboration to the evidence of S. Further the evidence of the distress spoken to by wee John could not afford corroboration, given that the context of his evidence was that the alleged distressing event only consisted of "trying to have sex". Secondly, Ms. Scott submitted that the trial judge had failed to give the jury adequate directions as to how to approach evidence as to distress. In directing them that they must be satisfied that it was due "or partly due" to the fact that the complainer's will was overcome, he did not make sufficiently clear to them that they must be satisfied that the distress was directly referable to the alleged rape before it could constitute corroboration of the complainer's evidence that her will had been overcome. He had also failed to direct the jury to consider whether or not the evidence relied on was too remote to enable any reliance to be placed upon it. Thirdly Ms. Scott submitted that in any event in directing the jury that it was open to them to regard the evidence of distress after the event "as corroboration of their account of events...", he was manifestly in error, in the absence of any other evidence as to what happened to the complainers. There was no support from the eye witnesses in the car. The direction implied that evidence as to distress was of general application. The trial judge's misdirection was not retrieved by the fact that after directing them on the Moorov principle he stated:
"You have the potential of corroboration for the overcoming of will because of the distress shown by the girls but, so far as penetration is concerned, this is the only potential source of corroboration which is available to you". (15E-F)
The directions given by the trial judge were, in our view, unfortunate, especially as the Crown had relied on distress not for the purposes of corroboration but in order to support the credibility of the complainers. However, we are not persuaded that the evidence given by wee John was too remote to afford corroboration. The complainer gave an explanation as to why she had said nothing to the other persons whom she had spoken to after the incident in the car. It was for the jury to decide whether the evidence of distress, which could provide corroboration of the complainer's evidence that her will to resist had been overcome, did in fact do so. The reference to the jury being satisfied at least that the distress was "partly due" to the fact that will had been overcome was badly expressed. However, having regard to the sentence which followed we do not consider that the jury would have been left in any doubt that before they could rely on the evidence as to distress for the purposes of corroboration they would require to be satisfied that it was directly due to the will having been overcome. The direction that it was open to the jury to regard the evidence of distress as "corroboration of their account of events..." was plainly too widely expressed and, considered by itself, was a misdirection. However, when the charge is read as a whole, and in particular when the jury were clearly informed at a later passage that the application of the Moorov principle was the only potential source of corroboration of the evidence given by the complainers as to penetration, it can be seen that the error was corrected. Thus, while we do not find the trial judge's directions to be entirely satisfactory we are not satisfied that there was any miscarriage of justice in this respect.
The trial judge then proceeded to direct the jury in regard to the meaning and application of the Moorov principle. He said to the jury at pages 13D-15F:
"Now so far as penetration is concerned, ladies and gentlemen, in each case you only have the evidence of the girl. Both of them said that intercourse was had with them against their will. Now, what I have to direct you, ladies and gentlemen, is that there is a rule of law, referred to by the Advocate depute, which enables you, if you are satisfied on various points, which enables you to use the evidence of one crime as corroboration of uncorroborated evidence of another. And I put it like this, ladies and gentlemen, when more than one crime is committed and those crimes are so connected in time, place and circumstances that they constitute a course of conduct, and that is an important phrase in this rule, that they constitute a course of conduct, then the uncorroborated evidence of one can provide corroboration for the uncorroborated evidence of the other. In other words, as I think the Advocate depute put it, they provide mutual corroboration but, ladies and gentlemen, it is essential, therefore, that before you can bring this rule into operation in this case that you believe both girls. If you believe one of the girls and disbelieve the other, then your corroboration is gone, because your corroboration can only come from evidence that you believe. So, as I have said earlier, it is essential if you are going to convict of either charge that you believe both girls, and I hope that I have made that reasonably comprehensible.
Now, before you can ever begin to use this rule, ladies and gentlemen, you have to be satisfied that these two incidents constitute a course of conduct, and in order to arrive at a view on that what you have to look at is the time, the place and the circumstances, and the Advocate depute has already addressed you on these factors. There is no doubt the two incidents took place on consecutive days, and that they were both committed in places near Cumnock, and there were certain similarities about the circumstances.
Now, it is for you, ladies and gentlemen, to decide whether the circumstances were similar enough. There were differences, one, for example, took place in a car and the other is alleged to have taken place in a house, although the same car was involved at one stage in the second incident. So, it is entirely a matter for you, ladies and gentlemen, whether you regard these two incidents as constituting a course of conduct, and if they do whether you are prepared to use one of the girls as corroboration for the other. And, of course, as I have emphasised, you have the potential of corroboration for the overcoming of will because of the distress shown by the girls. But, so far as penetration is concerned, this is the only potential source of corroboration which is available to you".
As regards the meaning of the Moorov principle Ms. Scott criticised this passage in respect that the trial judge did not direct the jury that it was necessary for them to infer that there was an underlying unity of intent. Ms. Scott referred to passages in the opinion of Lord Justice General Clyde in Moorov v. H.M. Advocate 1930 JC 68 at page 73 where he spoke of
"the connexion between the separate acts (indicated by their external relation in time, character, or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind - but is related to - the separate acts".
And at page 74:
"It is of the utmost importance to the interests of justice that the 'course of criminal conduct' must be shown to be one which not only consists of a series of offences, the same in kind, committed under similar circumstances, or in a common locus - these are after all no more than external resemblances - but which owes its source and development to some underlying circumstance or state of fact such as I have endeavoured, though necessarily in very general terms, to define".
While the directions given by the trial judge were, in our view, no more than the bare minimum to convey the meaning of the principle to the jury, we are not persuaded that they were lacking in any vital respect. We have no doubt that it would have been better if he had made it explicitly clear to the jury that what mattered was whether the acts spoken to by the complainer formed part of a single course of conduct. However, it may be noted that in Moorov the Lord Justice Clerk (Alness) said at page 80:
"Positively the rule may be expressed thus:- that where, on the other hand, the crimes are related or connected with one another, where they form part of the same criminal conduct, the corroborative evidence tendered is competent".
And in Ogg v. H.M. Advocate 1938 J.C. 152 the Lord Justice Clerk (Aitchison) at page 157 referred to the requirement that a number of crimes which were deponed to by a single witness should be so inter-related "as to justify an inference that they are instances of a course of criminal conduct systematically pursued by the accused person". Compared with these authoritative statements of the principle, there was not an essential deficiency in the trial judge's directions.
Ms. Scott went on to criticise the directions in regard to the application of the principle to the evidence in this case. She advanced four lines of argument. Firstly, she submitted that the trial judge had failed to direct the jury clearly or explicitly that it was essential that they were satisfied as to the application of the principle before they could convict. While the charge could have been more clearly expressed, we consider that the directions given to the jury were adequate, if only barely adequate. In particular he achieved this by the direction at 15E-F where he indicated to the jury that this principle was the only means by which there could be corroboration in regard to the matter of penetration. Secondly, the trial judge was criticised by Ms. Scott on the ground that he had usurped the function of the jury by directing them that there was no doubt that the two incidents took place on consecutive days and that they were committed in places near Cumnock and there were certain similarities about the circumstances. She maintained that it was a critical matter for the jury to decide whether there was a sufficient connection such as to allow the inference of an underlying unity of intent and course of conduct. It was, of course, a matter for the jury to decide whether and to what extent there were similarities of time, character or circumstance, in particular where there was a dispute as to fact or interpretation of fact. Then, standing such similarities and dissimilarities as they found, it was a question for them as to whether they inferred that the incidents formed part of a single course of conduct. We do not consider that the trial judge usurped the function of the jury in regard to either of these questions. So far as the first is concerned, it is not in dispute that there were certain similarities, and the trial judge correctly left it to the jury to decide what inferences they could draw in the light of both the similarities and the dissimilarities which the evidence had disclosed. The third criticism was that the trial judge failed to relate the Moorov principle to the evidence by failing to present an accurate or balanced picture of the evidence. Ms. Scott complained that the only difference which the trial judge had mentioned was the difference in location so far as relating to the car and the house and that this difference was qualified. He had made no mention of material differences in regard to the background, location, character and modus. The time, place and circumstances in which intercourse had allegedly taken place were in dispute. We do not consider that it was necessary for the judge to rehearse all the factors which were prayed in aid on either side. In so far as he chose to mention certain similarities by way of example he did not distort the jury's approach to the evidence. He plainly left it to them to decide whether the circumstances were similar enough for the purposes of the principle. Fourthly, Ms. Scott criticised the trial judge for failing to direct the jury that caution was required in applying the principle, having regard to the fact that there were only two incidents, that the two complainers were closely connected and that the second complainer had been told of the allegations of the first at the outset. There was a question as to the sufficiency of evidence to allow the principle to be applied. It was not, in our view, essential for the trial judge to give a direction that special caution was required in dealing with this case. He clearly directed the jury that they required to be satisfied as to the credibility of the substance of the evidence given by each of the complainers. Matters such as the connection and communication between them were for the jury to determine as part of their consideration of questions of credibility in the light of the submissions made on behalf of the Crown and the appellant. In our view, accordingly, he did not misd
Ms. Scott submitted finally that the combined effect of deficiencies in the trial judge's directions in regard to distress on the one hand and the Moorov principle on the other was fatal. Having regard to our earlier conclusions we are not satisfied that that submission is well-founded.
In these circumstances the appeal against conviction is refused.