Scottish High Court of Justiciary Decisons

ALEXANDER FORSYTH v. HER MAJESTY'S ADVOCATE [2000] ScotHC 21 (22nd February, 2000)

On 5 November 1997 the appellant was found guilty of a number of charges on the indictment relating to incidents on 18 August 1995 at an address in Bellshill. These included a charge (3) of assaulting a female complainer in which it was alleged that he did:

According to the next charge (4) the appellant did

The following charge (5) alleged that on a further occasion, the appellant did assault the complainer and did

The appellant has appealed his conviction on charge (5) on the following ground:

On the evidence tendered by the Crown it appeared that the appellant and the complainer had met in April 1993 and formed a relationship which led to the birth of their son, C., on 19 May 1994. In May 1995 the complainer was allocated a local authority house. Prior to that time she and the appellant lived at the homes of their respective parents. After the complainer was allocated her house the two lived together as a couple with their baby son, but the appellant retained his own bedroom at his parents' house at the address referred to in the charges. On 18 August 1995 the complainer and C. were temporarily staying at that address while the appellant's parents were on holiday. In the early evening of that day the complainer was visited by a friend, Mrs. M. and her child S. Shortly after they arrived the appellant telephoned at about 7.30 p.m. and told the complainer that she was to go round with the child to watch the Orange Walk that was taking place in Bellshill. She was reluctant to do so since she had bathed her son and got him ready for bed. However, the appellant was insistent that she should attend and accordingly she put C. in his buggy and went with him, Mrs. M. and S. to a bar where they met the appellant. He was considerably affected by drink. His attitude was hostile and he became very angry with her. In due course the complainer and Mrs. M. and the two children returned to the house arriving there at about 8.30 p.m. At about 9 p.m. Mrs. M's husband arrived in order to collect his wife and daughter.

According to the transcript of the evidence of the complainer when the appellant returned about half an hour later he went upstairs. He shouted for her to come up and she went up to the bathroom where he was. He there pushed her against a mirror and caused her to fall into the bath. She thought that he was also pulling at her hair. She got out of the bath, ran downstairs and went out of the front door of the house. She said that she had had enough, and was not taking any more. The appellant ran after her and, when she had got half way up the path, pulled her back into the house and locked the front door. Mr. and Mrs. M. were still in the house. Mr. M. suggested that she might leave. She said that she was quite hysterical. C. was crying. After "a wee while" Mr. and Mrs. M. left. She picked up C. and was standing at the bottom of the stair. The appellant, who was wearing working boots, kicked her on the side of the face. She went into the livingroom and put down C.. She tried to get back out of the door, but that had been locked. She then ran into the kitchen and tried to get out of the kitchen door but could not do so. C. was still in the livingroom and was shouting for her. The appellant would not let her go to him. In the kitchen the appellant was fighting, pushing and pulling at her. She landed on her back on the floor. He held a potato peeler at her face. He tried to choke her with his hands round her neck. She could hardly breathe. She asked him to get off so that she could attend to C.. He did so. She then went through into the livingroom and gave C. a bottle until he fell asleep. Then she put him in his buggy in the livingroom. This took perhaps about half an hour. She did not recollect where the appellant was during this time. When C. was settled down the argument with the appellant flared up again. He was getting really angry. He told her to phone Mr. M. to tell him that everything was all right. She complied. He got hold of her upper arm and said twice to her: "Do you know what it feels like to be raped?". She was terrified. He led her upstairs. She was crying but did not say anything. She was too scared to resist. She did not want to go with him. He took her to the front bedroom which he used. She was laid over the back of a table where he removed her clothing and had intercourse with her. She did not do anything to stop it happening as she was too frightened of him. She was shaking and crying and was a bit hysterical. She was crying during the sexual act. The intercourse last for about five minutes. Thereafter she put on her clothing and went downstairs. The appellant followed her and told her to make himself something to eat, which she did as she was terrified of him. After she had given him his dinner she was in the kitchen for a short time. Then she went into the livingroom. The appellant had fallen asleep on the floor. She sat in the livingroom for a short time. Then she got all her stuff together and left the house on foot, taking C. with her. She had put her belongings into plastic bags. It was raining. She left because she had had enough. It was the first time that she had stood up for herself. Shortly after leaving the house she met a policeman and asked him to get her a taxi. He asked her what had happened to her. She was still quite hysterical at that point. She told him that her boyfriend had beaten her up. He took her into the police station, where she said that she had been raped. She was in shock, and was shaken and looked white. She had quite a lot of marks on her face. She added that in addition to the call which she had made, she thought that Mr. M. had phoned once in order to find out whether things were all right.

Mr. M. gave evidence that about half an hour after he reached the house, the appellant returned. He was "uptight" and aggressive. At one stage both the appellant and the complainer were upstairs. He was apprehensive when he heard a noise like a thump or thud coming from the direction of the bathroom. He was concerned about what was going on. When they came downstairs the complainer was, he thought, crying, and his wife tried to console her. He thought there was a mark on her neck. The appellant's attitude to her made him think that there had been a heated argument between them. The appellant went upstairs, and the witness followed him in order to calm him down. He was upstairs with C.. When his wife came upstairs to ask that C. be brought downstairs, the appellant told her to go away or he would kill her. He told his wife to go downstairs again. The complainer tried to leave the house. The appellant left C. with the witness and ran downstairs and outside on to the path in pursuit of her. He brought her back into the house. As they passed him on the way into the livingroom he saw that the appellant was holding the complainer's arms down. Thereafter the appellant did not really calm down at all. His wife and S. were getting hysterical and the complainer was screaming. Holding the child he approached the appellant in order to calm him down and let the complainer go. That continued for some minutes. Eventually the witness decided to leave. Accordingly he gave C. back to the appellant and left with his wife and daughter. This was about 10 p.m. He telephoned the house later, as soon as they got home. He spoke to the appellant who said that things were all right and quietening down. Then the phone was dropped, and he could hear another heated argument in the background. After that he did not hear anything, and ended the call. The appellant telephoned him back later about 10.30 p.m. Things appeared to have quietened down. He spoke to the complainer. "She seemed to have calmed down somewhat". Sometime later, possibly after a couple of hours, - about 12.30 - 1.00 a.m. - he received a call from the complainer. She was hysterical, saying that her throat had been cut and that she had been raped. She was crying uncontrollably and it was difficult to get an answer from her. She was irrational and kept jumping from one thing to another. She was quite difficult to understand. He understood from her that the appellant had left the house. She mentioned a car. She did not know what to do. She did not want to contact the police, but said that she would rather leave the house and take C. with her.

The evidence of a police Inspector was to the effect that about 12.45 a.m. he was outside the police office, which was near the house. It was raining heavily. He saw a woman, who was the complainer, pushing a buggy with a baby in it and carrying plastic bags. She was not wearing a coat but only a T-shirt and shorts. This seemed an unusual sight at that time of night. She approached him and asked him if he could get her a taxi, but before he could answer she burst out crying and said that she had been assaulted by her boyfriend. He then took her into the police station. She was sobbing uncontrollably and had a bruise on the left side of her face and marks on her neck. The Inspector immediately instructed colleagues to interview her. He was with her for about five minutes, and during that time she said nothing expressly about rape. However, very shortly thereafter she said to other police officers that this had happened to her.

In his evidence the appellant accepted that there had been unpleasantness during that evening. He had been annoyed because he thought that the complainer and Mr. and Mrs. M. had been talking about him in his absence. He maintained, however, that after Mr. and Mrs. M. had left things calmed down. Once C. had been put to sleep he and the complainer made up. He went upstairs to the toilet. She followed him up. They started kissing and had agreeable sexual intercourse. Thereafter she made a steak pie for him. He ate it and thereafter fell asleep. The next thing which he knew was being woken up by the police.

In these circumstances it was not in dispute that the appellant had sexual intercourse with the complainer. For corroboration of the proposition that that intercourse was without her consent and that her will to resist had been overcome the Crown relied on the evidence of Mr. M. and the police Inspector as to the distress shown by the complainer after the alleged rape. At the conclusion of the evidence the trial judge rejected a submission that there was insufficient evidence in law to entitle the jury to convict of rape. It was substantially on this ground that Mr. Ogg, in presenting the appeal argued that no reasonable jury could have convicted the appellant on the rape charge.

Mr. Ogg accepted that evidence of distress was apt to corroborate evidence of a complainer that she did not consent to the accused's conduct and that he used force to overcome her will, even where the competing explanation for her distress was spoken to by other witnesses or was raised on a hypothetical basis. It was, however, different where the competing explanation came from the complainer herself. In such a case evidence of distress was not apt to corroborate her evidence. The jury had to ask themselves whether, if they accepted the complainer's evidence but might be wrong, there was an independent check which they had reason to accept, apart from believing her.

Mr. Ogg applied this approach to the present case. The complainer, had described a completed assault which had been perpetrated on her in the bathroom. This was the subject of charge (3). It was important to note that, on her evidence, this was a physical, but non-sexual, assault; as a consequence she was hysterical; and her reaction to that assault was to try to leave the house, without additional clothing or her belongings. He said that she had had enough. She was unable to leave the house because she was physically restrained by the appellant. Thereafter she was alone with the appellant when, according to her evidence, he assaulted her again in the manner described in the early part of charge (5). Again, it was not an indecent assault. She said she did not know where the appellant was between that assault and the time when she had settled C. in the livingroom. It was clear that any marks of injury which she sustained related to the non-sexual assault. She did not suggest that the appellant had used any violence towards her in the context of the sexual assault. She had never been asked in evidence to state what were the causes of her ultimate state of distress.

Mr. Ogg submitted that the evidence given by Mr. M. generally was in agreement with that of the complainer as to the sequence of events. He had given evidence describing her state after the charge (3) assault and how she then wanted to leave the house. She did not do so because of the restraint applied by the appellant and because C. was still there. His evidence about the telephone call which he said that the complainer had made to him about 12.30 - 1.00 a.m. was not consistent with her evidence.

Mr. Ogg also pointed out that the Crown plainly treated the events which were the subject of charge (3) as separate from the assault in the kitchen. In order to entitle the jury to convict, it was not enough that other evidence was merely consistent to that of the complainer. There required to be an independent check on her evidence as to her distress. It was merely speculative for the jury to infer that it was due to her having been raped. How could they distinguish distress due to a sexual assault from a continuation of what had been observed after the charge (3) assault?

In support of his submissions Mr. Ogg referred to the decision in Mongan v. H.M. Advocate 1989 S.C.C.R. 25, and to passages in the opinions delivered in Fox v. H.M. Advocate 1998 S.C.C.R. 115 by Lord Kirkwood at page 139C and Lord Gill at page 147F. These passages recognised the possibility of there being cases in which evidence as to the state of distress of the complainer is so inherently ambiguous as to be incapable of supporting the complainer's evidence that she did not consent and that the accused used force to overcome her will. Mr. Ogg maintained that in all the cases dealing with distress the competing explanation came from an account other than that given by the complainer or had been raised hypothetically. When the explanation was raised by the evidence of another witness, the witness was merely providing a report of a generalised state of distress. It was open to the jury to conclude that that evidence was not reliable. If, on the other hand, it came from the evidence of the complainer herself, this meant that the evidence of distress was ambiguous. Thus, in the present case, it was the complainer herself who had given evidence of her distress as a result of a non-sexual assault. Accordingly in the unusual circumstances of the present case there was an ambiguity which defeated the use of evidence of distress as corroboration.

It is, we consider, important to bear in mind that, in the context of the requirement for corroboration, that evidence of distress which is essential to the Crown case, as it is in the present one, is evidence given by witnesses other than the complainer. Strictly speaking there does not have to be evidence from the complainer herself that she was distressed. In practice, however, the prosecutor will normally seek to elicit such evidence from her, if only for the purpose of avoiding any apparent conflict between her evidence and that of other witnesses. That is, of course, to do with the credibility and reliability of evidence.

The existence of evidence from which an alternative explanation for the distress may be taken or inferred is, of course, a matter which juries frequently have to consider. In the course of his charge in the present case the trial judge drew to the attention of the jury that, in the context of the question whether the evidence of distress corroborated the evidence given by the complainer, the defence founded on the unpleasantness which had happened earlier in the evening, the domestic violence and the evidence that the complainer wished to leave the house. He also pointed out that the defence founded on the remarks which the complainer made to the police Inspector when she encountered him, which was that her boyfriend had assaulted her.

We are unable to accept the distinction which Mr. Ogg made between a case in which the alternative explanation is spoken to by the complainer and one in which it is spoken to by other witnesses. This has no foundation in principle, and gains no support in any of the relevant decisions. In the end of the day it makes no difference in principle whether the issue of an alternative explanation arises from the evidence of one witness or another, or at one stage of the evidence or from another. What matters is the practical effect of such indications as there may be that there could have been an alternative explanation for the distress on which the Crown found their case. We should add that, as was pointed out by the Advocate depute, it would in practice be difficult to determine whether or not an alternative explanation could be said to arise from the complainer's evidence. Where it is anticipated that other witnesses will give evidence which may raise such an issue, it would normally be expected that the point is put to the complainer, either by the prosecutor or by the defence. It would be difficult indeed to determine whether the extent to which the complainer accepted matters of fact which were put to her would entail that this was a case where, according to the line drawn by Mr. Ogg, evidence of distress would not be apt to corroborate her account.

We do not quarrel with the proposition that there could be a case in which there was such an ambiguity about the explanation for the evidence of distress that no reasonable jury could properly consider that it corroborated her evidence that she did not consent to the intercourse and that the accused used force to overcome her will. However, we are satisfied that that description does not apply to the present case.

In the present case there was evidence, both from the complainer and from Mr. M., of separate assaults and a discontinuity in the state of the complainer. This case is unlike that of Mongan in which there was no sequence of events but a single incident. The problem about the evidence of the distress in that case was whether it was due to one aspect of the incident, namely that the property of the complainer had been taken from her by means of assault and robbery rather than that it was due to her having had property stolen from her. In the present case the jury were able to compare the evidence given by Mr. M. as to the state of the complainer during the second telephone call with the evidence which he gave in regard to the third. The difference plainly was striking, and it was open to the jury to infer that the ultimate state of the complainer was due to the latest assault which had been perpetrated on her. It is also important to bear in mind, as the Advocate depute submitted, that the complainer's attempt to leave the house after the charge (3) assault was a spontaneous reaction, whereas her departure with her son C. and her belongings happened much later and was the result of a deliberate decision on her part. Accordingly the jury could distinguish them in these respects. Moreover, as the Advocate depute said, the jury could take the view that, for the complainer to take to the streets with her son and her belongings inadequately clad and on a rainy night tended to support her account that the intercourse which the appellant had had with her was without her consent and against her will.

For these reasons we consider that there was sufficient evidence to entitle the jury to find that the complainer's account was corroborated by the evidence of distress spoken to by Mr. M. and the police Inspector. The grounds of appeal do not raise any separate question than that of corroboration. Accordingly the appeal is refused.