Scottish High Court of Justiciary Decisons

GRAHAM McGILL v. HER MAJESTY'S ADVOCATE [2000] ScotHC 101 (27th October, 2000)

[1] The appellant is Graham McGill who went to trial at the High Court at Glasgow on a charge of attempted rape. The charge, as it appeared on the indictment, was to the effect that on 27 March 1999 at a courtyard at 10 Manse Road, Motherwell he did assault the complainer, seize hold of her neck and body, pull her and repeatedly attempt to force her to the ground, struggle with her, repeatedly punch her on the head, force her to the ground, lift up her dress and attempt to remove her underwear, kneel on top of her and pin her to the ground, cover her mouth with his hand, all to her injury and with intent to rape her and he did attempt to rape her. The jury returned a verdict in which they deleted the averment that the appellant lifted up the complainer's dress and attempted to remove her underwear and also the averment that he did attempt to rape her.

[2] The appellant has appealed against his conviction on the ground that, standing the deletions which the jury made from the charge as originally framed, the trial judge should have directed them that the terms of the libel as it stood after the amendments were not sufficient for them to infer that the intention of the appellant was to commit rape. In his submission to us today Mr Kerrigan, on behalf of the appellant, accepted that the issue in essence was whether or not, given that the jury found the averment of lifting up the complainer's dress and attempting to remove her underwear not proved, on the basis of the rest of the elements in the evidence, the jury were entitled to return the verdict which they did. That is indeed in line with the comment of the learned trial judge in his report to this court when he said that the question was whether, from the evidence which they did accept, they were entitled to return the verdict in the terms they did. The crucial question, of course, in Mr Kerrigan's submission, was whether or not the jury were entitled to infer that the assault had been with intent to rape the complainer. His submission was that standing the deletions from the charge, and standing therefore that they had not found that specifically sexual aspect proved, there had not been sufficient in the remainder of the evidence in the case to entitle them to infer that the assault had been with intent to rape the complainer. The appropriate verdict for the jury to return would therefore have been a verdict of assault to injury.

[3] The evidence showed that the complainer had been out for the evening but that, when she and her partner were leaving the premises where the function had taken place, they had become separated and she had chosen to walk what was only a short distance of about 100 yards from the club to the flat where she and her partner lived. This was in the early hours of the morning. She was alone and, when she reached the lane where her flat was situated, she discovered that she did not have a key. She therefore had to wait in the door recess of the flat for her partner to arrive. According to the complainer's evidence, while she was standing there, the appellant approached her and stopped and looked at her without saying anything. He then came up and grabbed her and she began screaming. According to her evidence, he grabbed her left arm and put his right arm around her neck and pulled her out of the recess and into the lane. He had both hands on her shoulders and repeatedly attempted to force her on to her back, punching her repeatedly. He put his hand on her mouth to stop her screaming. She was leaning well back, with him leaning over her. She also gave evidence to the effect that he had indeed lifted up her dress and attempted to remove her underwear, but that element in her evidence was not accepted by the jury. Her screams wakened a couple in a nearby house who looked out of their window. Each of them gave evidence. One of them described the appellant as kneeling and straddling the complainer - which was not the picture which the complainer herself spoke to - while the other said that he was holding her down and trying to get on top of her. He broke off the attack and left the lane.

[4] In our view, if they accepted the complainer's account and the evidence of the eye witnesses, the jury were indeed entitled to draw the inference that the assault on the complainer was with intent to rape her. As Lord Cameron of Lochbroom pointed out during the course of the hearing, the trial judge, in directing the jury, said to them that if they accepted the evidence that the man was trying to get on top of the woman, or was kneeling or straddling her, or whatever he may have been doing, it was entirely a matter for them to decide whether or not they thought it appropriate to draw the inference that the appellant was carrying out a sexual attack on the complainer. Mr Kerrigan did not argue that this had itself had been a misdirection. But, in any event, we are satisfied that the evidence was sufficient to permit the inference to be drawn.

[5] The complainer was a female of 24 years of age. She was alone in a dark lane in the early hours of the morning. The appellant did not speak to her and proceeded to assault her, forcing her down and eventually trying to get on top of her. In that version of events, which the jury were entitled to accept, there was no competing explanation for the assault and, given the nature of the circumstances of this assault on a young female complainer, it was a perfectly legitimate inference that the appellant had assaulted her with intent to rape her. Given, therefore, that the evidence would have entitled the jury, as a matter of law, to draw this inference, it was entirely a matter for them, depending on their assessment of the evidence, to decide whether or not they in fact drew the inference. In these circumstances, since the verdict was one which was open to the jury on the evidence, and it cannot be said that no reasonable jury would have reached it, the appeal against conviction must be refused.

DL