Scottish High Court of Justiciary Decisons

GORDON WATSON FORD v. HER MAJESTY'S ADVOCATE [2001] ScotHC 108 (26th October, 2001)

[1] The appellant was convicted after trial at Dunfermline Sheriff Court of a charge that on 27 May 1999, near to the premises known as the Band Hall, Paton Street, Dunfermline, he assaulted the complainer and kissed her cheek, seized her by the arm, pushed her against a wall, pinned her against the wall, repeatedly kissed her, put his tongue in her mouth, fondled her breasts, kissed her breasts, pulled down her tights and pants, repeatedly inserted his fingers in her vagina, masturbated in her presence, force her hand onto his penis and forced her to masturbate him, placed his naked private member between her legs and attempted to rape her. The appellant now appeals against conviction. His Note of Appeal contains six grounds, but leave to appeal was refused in respect of the first ground, and at the hearing of the appeal counsel for the appellant did not seek to argue grounds 3 and 6, leaving grounds 2, 4 and 5 for our consideration.

[2] The second ground of appeal is directed to the sufficiency of the evidence relied upon by the Crown as affording corroboration of the complainer's account of the incident. In his report to us the sheriff has summarised the complainer's evidence as follows. At the time of the incident she was a 17-year-old schoolgirl. On the evening of 26 May 1999 she attended her final year school dance along with some friends at the high school she attended in Dunfermline. After the dance she went to a night-club in Dunfermline from about 10.45pm to about 1.00am, during which time she consumed a number of alcoholic drinks. She was in the company of several school friends and when the evening came to an end they set off for home, a distance of about two miles. As the group of young people made their way up Townhill Road in Dunfermline they met the appellant, who was then aged 40. The complainer did not at first recognise the appellant, but soon realised that she did because his wife worked alongside her in a shop in Dunfermline where the complainer had a part-time job. The appellant immediately attached himself to the group of young people. During the course of the evening he had, on his own account, consumed about ten pints of beer and alleged that he had lost his way home. It appears from the sheriff's report that the other young people must have gone their own ways, because there came a time when the complainer and the appellant were walking alone together. At the appellant's request, the complainer walked beyond her own house and went into another street to point out to the appellant the direction which he should take in order to go home. At about 2.00am they were near the Band Hall in Paton Street. This was a hut which was reached by a pathway.

[3] The complainer continued her account by saying that while she was standing in Paton Street the appellant seized her right wrist and pulled her down the pathway towards the hut against her wishes. She attempted to pull away and told him to let go, but he did not reply. He then pushed her against the wall and she banged her head against it. He forced her with his arm against the wall and her body was pinned against it. One arm was across her chest and he was in front of her. Her arms were at her sides. She struggled with him. He kissed her on the cheek after she dodged his attempt to kiss her mouth. He tried to put his hand up her dress. He got his hand into her tights and pulled her tights and pants down. Her pants and tights were halfway down her thighs. He had his back to her at one stage. He turned his shoulder against her and his weight was pinning her against the wall. He undid his belt and took out his penis. He masturbated himself and "fingered" her. She told him to leave her alone and that she would not say a word. He touched her breasts, putting his hand down inside her dress and inside her bra. He took her hand and attempted to put it on his penis, but she pulled away and he "fingered" her with his back to her. He had his fingers up her vagina. Her dress was at her waist by then. "He tried to put his penis on to me on my vagina. He got it on but not in it." She was unaware at the time that he had ejaculated. When he pushed his fingers up her vagina, she felt really horrible and did not want it, it was sore, nothing like that had ever happened to her before. Finally he dropped some money from his pocket and it was when he bent down to pick it up that she was able to run away. In cross-examination, when she denied that she was a willing participant in the sexual encounter, she added that her tights were laddered when the appellant pulled her tights and pants down and she resisted. She persisted in her previous evidence that the appellant was trying to enter her with his penis and that he was pushing into her forward and backward.

[4] This clearly was an account of attempted rape, and counsel for the appellant did not seek to suggest otherwise. The issue, as we have said, is whether there was sufficient evidence to corroborate it. The Crown relied on evidence coming from a number of sources. Firstly, there was evidence of statements made by the appellant to police officers. About 24 hours after the incident the appellant was interviewed at Dunfermline Police Station, when the complainer's allegations were put to him. While we have a full transcript of the interview, which lasted for about 35 minutes, the appellant's statements can be summarised quite briefly. He said that after drinking at various premises in Dunfermline he walked up the road and encountered some people, of whom one was the complainer, whom he recognised. He took her round the corner on to Paton Street and gave her a kiss and a cuddle "and stuff like that". He insisted repeatedly that everything that happened was with the complainer's consent. He said that because of the amount of drink he had consumed he could not remember everything, but he denied that he had unfastened his clothing and taken his penis out. Later on 28 May 1999, however, the appellant went back to the police station and made a voluntary statement. In this he stated that there was a period when he was in close contact with the complainer. He said that she assisted him in undoing his fly and taking his penis out. She masturbated him with his assistance and there was a point when briefly he ejaculated. When the complainer mentioned his wife's name he realised that they were doing something wrong and the sexual activity had to stop. His penis was exposed only briefly and it was with her assistance that it came out. After that, there was a period when they started kissing and cuddling and soon thereafter they parted. It appears that at the trial the appellant gave evidence in terms similar to those of his voluntary statement.

[5] A number of witnesses gave evidence to the effect that on her return home after the incident and thereafter during 28 May the complainer was distressed. We do not require to go into the detail of this evidence because counsel for the appellant accepted that this could be viewed as evidence of distress which could corroborate the complainer's evidence that she was subjected to distressing conduct and, by inference, that the conduct occurred against her will and hence that force was used: Smith v Lees 1997 J.C. 73.

[6] The clothing worn by the complainer at the time of the incident was examined by forensic scientists, who reported that semen staining was found at various places on the front and back of her dress and on the front and on the left sleeve of her jacket. No semen staining was found on her tights or pants. A 4 cm split was found in the front left sleeve/shoulder seam of her jacket, and the left sleeve hem was undone: this damage was of uncertain age. Apart from a small laddered hole in the toe region of one leg of her tights, a fine ladder was found in the mid-region of each leg. It was the opinion of the forensic scientists that it was unlikely that these areas of laddered damage were caused prior to the tights being last washed. The complainer's evidence was that this damage had been caused by the appellant during the course of the incident. The appellant's clothing was also examined and semen staining was found on the outer surface of the non-buckle end of his belt. Samples of the semen staining from the complainer's dress and the appellant's belt were subject to DNA analysis and it was established that the DNA came from the appellant. It appears not to have been in dispute at the trial that all the semen stains were the result of the appellant's having ejaculated during the course of the incident.

[7] Finally, there was evidence about the findings of a police surgeon who examined the complainer after the incident. She found two partial tears in the complainer's hymen, but no raw edges, blood or other evidence of recent injury. She was unable to express an opinion as to when these tears had occurred. Professor Busuttil was called as an expert witness for the appellant. He did not examine the complainer, but on the basis of the police surgeon's findings he expressed the opinion that in the absence of evidence of bleeding the tears were not recent. He also gave evidence that tears to the hymen could be caused by digital or penile penetration. The complainer had given evidence that she had experienced no such penetration until the appellant inserted his fingers in her vagina. Notwithstanding the absence of medical evidence that the tears in the complainer's hymen were recent, the Procurator Fiscal Depute in her address to the jury invited them to hold that they were, and had been caused by the appellant. In a passage in his charge to which we shall return later the sheriff directed the jury to disregard the interpretation which the Procurator Fiscal Depute sought to put on the police surgeon's evidence, and concluded by saying that they must not look at the evidence in relation to the complainer's hymen.

[8] In advancing the second ground of appeal, counsel for the appellant submitted that there was insufficient concurrence of testimony, and that the appellant's admissions were not capable of providing the necessary support or confirmation of the complainer's account in respect of the essentials of the crime of attempted rape. One of the essential matters which required to be established by corroborated evidence was that there had been an attempt to have sexual intercourse forcibly and against the will of the complainer. While not every detail of the complainer's evidence required to be corroborated, such an essential did. Counsel accepted that it was a jury question whether evidence relied upon by the Crown as affording corroboration of the complainer's account went so far as to establish that there had been an attempted rape, but she suggested that for this it was necessary to establish that there had been an attempt at penetration. Counsel accepted that there was sufficient evidence in the present case that an indecent assault had taken place, and indeed stated that she would have more difficulty in advancing her submissions if the charge had been one of assault with intent to ravish. The appellant's statements to the police, in particular his voluntary statement, on which the Crown relied, did not, in her submission, afford corroboration of an attempt at sexual intercourse.

[9] Counsel then turned to the fifth ground of appeal, which is to the effect that the damage to the complainer's clothing which was found by the forensic scientists could not afford corroboration of the use of force. Counsel submitted that, in the absence of evidence from any witness other than the complainer that when she went out that night her clothing was undamaged, there was insufficient evidence to relate the damage to the encounter between the complainer and the appellant. In support of this submission counsel referred to Gilmour v H.M.A. 1993 S.C.C.R. 23, in which it was held that an inference that the complainer's pants had been torn when the appellant was alone with her would have sufficed to corroborate her evidence that it was the appellant who had torn them in the course of raping her, but that such an inference must be based on some independent evidence and not on speculation and that, as there was no evidence on the matter other than that of the complainer who could not corroborate herself, there was insufficient evidence for conviction.

[10] Turning finally to the fourth ground of appeal, which relates to the sheriff's direction to the jury not to look at the evidence in relation to the complainer's hymen, counsel submitted that this amounted to a misdirection. Counsel did not take issue with what the sheriff was seeking to do, which was to tell the jury not to have regard to the evidence relating to the complainer's hymen as affording corroboration of her account. There was however an issue about the entire credibility of the complainer's evidence, including her evidence that she had never previously experienced digital or penile penetration, and in expressing the direction as he did the sheriff had in effect told the jury to disregard the evidence relating to the complainer's hymen altogether and not to take account of it in assessing her credibility.

[11] In reply to these submissions the Advocate Depute submitted that there was sufficient evidence to support the conviction. The mens rea and actus reus which the Crown required to prove were sufficiently established if the acts of the appellant yielded the inference that he intended to have sexual intercourse with the complainer by forcibly overcoming her will and that he actions had moved beyond preparation to perpetration. The appellant's own statements were sufficient for this purpose. Counsel referred to a passage in the opinion of the Lord Justice General in Smith v Lees at p.83 where, in approving the decision in H.M.A. v Yates (1976) 1990 J.C. 378 (Note) he explained that, while to support a charge of rape the use of force required to be corroborated, the complainer's evidence about the particular ways in which force had been applied did not require to be corroborated and the jury were entitled to find them proved even though the complainer alone gave evidence about them. The Advocate Depute submitted that the same approach was applicable to the complainer's evidence about the detail of the sexual conduct to which she was subjected.

[12] In addition to the appellant's statements, the Advocate Depute founded on the presence of the semen stains on the complainer's dress and jacket, and in particular on the position of the stains on the dress. He submitted that the damage to the complainer's clothing, and in particular her tights, was consistent with the complainer's account of the use of force, which included pulling down her tights and pants, and accordingly afforded an adminicle of evidence. On the whole matter the Advocate Depute submitted that the jury were entitled to hold that the appellant had exposed his penis and, while moving in the manner described by the complainer, was attempting to enter her when he ejaculated. While some evidence, such as the damage to the tights, when looked at in isolation, might be regarded as neutral, in the context of the complainer's evidence the evidence of her distress, the admissions by the appellant and the other circumstantial evidence all served to provide corroboration of her account. Finally, the sheriff's directions to the jury about the evidence relating to the tears in the complainer's hymen were given in the context of directions about the evidence on which they could rely as affording corroboration of the complainer's account, and did not detract from directions elsewhere in his charge about the approach to the complainer's credibility.

[13] In considering these submissions we take as our starting points the requirements for proof of the crime of attempted rape. These are that the accused had the intention of having sexual intercourse with the complainer forcibly and against her will (in the language of the current definition of the crime of rape), and that he engaged in conduct which passed from the stage of preparation for the crime into the stage of perpetration of the crime. The sheriff, in our view correctly, directed the jury in similar terms. Since it is essential for the Crown case that these requirements be proved, corroboration of them is necessary. It is a question of fact and degree, in the particular circumstances of each case, whether these requirements are satisfied. The crime of assault with intent to ravish (or rape, the two words being synonymous) and the crime of attempted rape are very similar. The intention that requires to be proved is the same for each of them, and it is a question of degree whether the conduct of the accused in carrying out a sexually motivated attack can be said to have reached the point where it could properly be said to have passed into the stage of perpetration, albeit incomplete, of the intended sexual intercourse. This is very much a jury question, the answer to which depends on the view they form of the whole evidence in the case. Beyond a direction as to the requirements which the Crown must prove in order to establish the crime of attempted rape, which we have already mentioned, it appears to us to be entirely inappropriate that a jury should be directed that certain conduct must be established in order to satisfy these requirements. In particular, it appears to us to be unsound to suggest, as counsel for the appellant did, that nothing short of an actual attempt at penetration will suffice. There are many situations in which it may properly be said that the accused has attempted to rape the complainer but his conduct, for whatever reason, has stopped short of an attempt at actual penetration.

[14] In our opinion, the evidence in the present case was entirely sufficient to entitle the jury to convict the appellant of attempted rape. The complainer's evidence, if accepted, was clearly an account of the commission of this crime by the appellant. Evidence of her subsequent distress was capable of corroborating her evidence that she was subjected to distressing conduct and, by inference, that the conduct occurred against her will, and hence that force was used: Smith v Lees. The appellant's own admissions to the police, in particular in his voluntary statement, were sufficient to establish that the conduct in question was of a sexual nature. It was for the jury to decide what inference about his intention could be drawn from his statements and from the other evidence in the case. It was open to them to interpret the voluntary statement as an admission that during the course of the admitted sexual conduct the accused intended to have sexual intercourse with the complainer. On his own admission his penis was exposed and he was sufficiently sexually aroused to have ejaculated. The jury were entitled to have regard, not simply to the presence of semen stains, but also their position at various places including the front and back of the complainer's dress and to relate it to her evidence about the appellant's movements. The jury were also entitled to have regard to the damage to her clothing, in particular the ladder in the mid-region of each leg, and to relate it to the complainer's evidence that the appellant pulled down her tights and pants. The decision in Gilmour v. H.M.A. requires to be read in light of Fox v. H.M.A. 1988 J.C. 94, in which a bench of five judges held that, so long as circumstantial evidence is independent and confirms or supports the complainer's direct evidence on the crucial facts, it does not require to be more consistent with her evidence than with any other account, in order to be corroborative of he evidence. It is for the jury to decide what interpretation to place on circumstantial evidence. Each item of evidence requires to be examined in its context and in light of the evidence as a whole, and may thus have a significance which it would not have if viewed in isolation. In the present case, of course, the Crown rely on more items of evidence than the damaged garment which featured in Gilmour v. H.M.A. The jury were entitled to have regard to all these items of evidence in order to test the complainer's credibility and, if they accepted her account, to decide whether there was corroboration of the requirements we have mentioned. If they were satisfied to this extent, then they were entitled to hold the charge proved, even though not every detail of the complainer's evidence was corroborated.

[15] What we have said so far is sufficient to dispose of the second and fifth grounds of appeal. It remains to mention the sheriff's direction about the evidence relating to the complainer's hymen, which is the subject of the fourth ground. It is important to bear in mind that this direction came in the context of a series of directions about the evidence to which the jury were entitled to have regard in considering whether there was corroboration of the complainer's account. In this context, the sheriff directed the jury in effect (and contrary to the submission of the Procurator Fiscal Depute) that they could not have regard to the evidence relating to the complainer's hymen as affording corroboration of her evidence of digital penetration by the appellant. This direction was thus wholly favourable to the appellant. Elsewhere in his charge the sheriff had directed the jury that they must consider the question of the complainer's credibility, and referred to "exhaustive comments about [her] credibility and reliability". Reading the charge as a whole, we see no reason to think that the jury would have understood the direction about the evidence relating to the complainer's hymen to mean that they could not have regard to it in considering her credibility, even though it could not afford corroboration of her account. In our view accordingly there was no misdirection by the sheriff, and this ground of appeal also fails.

[16] For these reasons the appeal is refused.