Scottish High Court of Justiciary Decisons

DAVID ALEXANDER KERR v. HER MAJESTY'S ADVOCATE [2001] ScotHC 3 (1st February, 2001)

[1] On 15 March 1996, the appellant was convicted, after trial, in the High Court at Edinburgh of an indecent assault upon Selina Marie Stokes. The assault was alleged to have been carried out on 17 May 1995 in the appellant's house at 24/5 Prince Regent Street, Edinburgh. The assault of which the appellant was convicted was in these terms:

The jury, in returning a verdict of guilty of that assault, deleted from the charge the final words appearing in the charge contained in the indictment, namely, "all with intent to rape her, and rob her of £100 of money". The appellant was also found guilty of wilfully and maliciously damaging a mobile phone, being a telephone which the complainer in the first charge had brought with her to the house.

[2] The appellant lodged grounds of appeal. These were departed from at a later stage and eventually fresh grounds of appeal were substituted for them. When the appeal was heard, on 1 February 2001, the remaining grounds of appeal in relation to the merits were in the following terms:

(The ground originally number "1" had been departed from at an earlier hearing). Mr. Bell, Q.C., who appeared for the appellant sought leave to add an additional ground on the merits but that motion was refused. Nevertheless it was acknowledged that, as had been accepted at an earlier procedural hearing, counsel would be allowed to advance criticism of the judge's charge in relation to corroboration when developing the other grounds.

[3] The complainer was a prostitute working in the Leith district of Edinburgh. Her evidence, in short, was that on 17 May 1995 she was approached by the appellant who was seeking to have sexual relations with her in return for payment. They agreed a price. They set off towards his flat which was on the first floor. She had a mobile phone. Colin McGhee (described by her as "My chap") and who, according to the complainer, owned the telephone, telephoned her as she made her way with the appellant towards the flat. She said that Colin told her to ring him if she got into any trouble. She and the appellant entered his flat and the appellant locked the door. It may be noted that when the police arrived later the door was locked and they had to kick it in when the appellant did not produce the true key. According to the appellant, her mobile telephone rang when she was inside the flat, and again it was Colin McGhee trying to speak to her. She said that the appellant then became very abusive, told her she was not getting any money and said that he could not let her out of the flat and that she was to stay. She kept re-dialling the telephone number from which Colin McGhee had telephoned; she could do this by pressing one button. She got through. She said that she tried to speak to McGhee on the phone and that McGhee tried to speak to the appellant. Then eventually the appellant took the telephone off her and smashed it with a hammer, put water on it and threw it out of the window. The phone was in fact recovered and, as noted earlier, the appellant was convicted of maliciously damaging it. The complainer said that the appellant took £100 from her, having gone through her handbag. He also made her get undressed and get into his bed. She was partly unclothed when the police came to the door. She said that, although he did not say so in so many words, the appellant wanted her to take her clothes off for sex, although he did not actually try to have sex with her. When the police arrived at the door, both were in bed and only partly clothed. According to her, as the police came to the door of the house, the appellant put his hand over the complainer's mouth and she screamed, realising that the police were outside. The appellant went to the door and told the police that he could not find the keys to open the door; the police kicked the door in. By that stage, according to the complainer, she was in tears. In cross-examination, she rejected the version of events put to her by counsel for the appellant, namely that once inside the flat she had stolen money belonging to the appellant, while he was out of the room, that he came back into the room and realised that she had stolen his money and that he compelled her to start undressing so that he could search her for the money that he believed she had stolen.

[4] Colin McGhee was called as a witness and conceded that he remembered an occasion in May 1995 when an incident happened. In other respects his memory, he claimed, was extremely deficient. He gave details of illnesses and accidents to account for his poor memory. The Crown led evidence that they had recovered from McGhee, at his house, a small recording tape taken from an answering machine attached to the telephone at McGhee's house; but McGhee said that he could not recall if, at the material time, he had either a telephone or an answering machine. However, the police evidence established that this tape contained a recording of parts of a telephone conversation, being the telephone conversation which the complainer said had taken place when she was in the flat. That tape was played over in court to McGhee and the jury were provided with a transcript of what was audible on the tape. However, this was the first time that the transcript had been put in evidence or the tape played to the jury. Counsel for the accused then objected to the jury's receiving a copy of the transcript, because the tape had not been played to or spoken to by the complainer; the trial judge overruled that objection and the jury duly heard the tape and received the transcript. Colin McGhee said in evidence that he recognised his own voice on the tape recording. On the transcript he is identified as 1MV (meaning male voice one). In evidence Colin McGhee claimed that he did not know "Selina" and could not recall if he had been living with the complainer in May of 1995. He also said that he did not recognise her voice. He also said that he recollected nothing. The contents of the tape were spoken to by a police officer who had listened to the tape and prepared the transcript. The tape contained an incomplete record of what the various parties said; but the appellant, who gave evidence, confirmed that he had spoken and indeed had said to the complainer, when the telephone rang (as the tape recording had recorded) "Selina dinnae even try tae think aboot goin on that telephone. I'll break yer fuckin haun (hand)". The voice of McGhee is also heard imploring Selina to answer the phone, instructing her to scream out "the police are coming soon" and to scream out "the police are on the way" if she heard the knock on the door. The voice of the appellant is heard saying "Let's have a fuck...strip off" to which a female voice answers "No way". The appellant then says "I'm tellin ye strip off I'm tellin ye now...no strip off of already." The female says "You says I could go". The appellant's voice says "I'm tellin ye strip off". The female voice says "You told me I could go". The appellant says "I'm tellin you strip off now. Strip off". The voice of Colin McGhee is then recorded as saying "You touch her, you're dead meat, mate. You're gettin done for rape cause the cops are on the way so let her fuckin out now." The other parts of the conversation are of less materiality. The appellant maintained that he was wanting his money back and that was why he wanted her to strip off because the money might be concealed in her clothing. He maintained that she in fact handed him back £100 from her skirt waistband. He maintained that there was nothing sexual going on between them that night in the flat. According to his evidence, he did not hear the other male voice on the telephone. He explained that the complainer asked to sleep in his house because she said one was frightened to go back "home" because she had no money "for his drugs". The appellant allowed her to sleep in his bed. The police arrived, apparently having been summoned by Colin McGhee. When the police arrived, the appellant said that he passed them a set of keys, but they were the wrong keys so he told the police to kick the door in, wh

[5] In support of his grounds of appeal, counsel for the appellant, pointed out that the complainer had not spoken to the terms of the telephone conversation because it had not been played to her and the transcript had not been put to her. McGhee spoke neither to the terms of the telephone call nor to making the tape recording. The appellant had accepted that there was a call but was unable to confirm all its terms. Mr. Bell drew attention to the fact that the appellant had not spoken to its contents, and submitted that it was "neutral" as evidence; it was consistent with the appellant's account of the events but no material value as corroboration. In our opinion, it is quite clear that the jury were entitled to have regard to evidence of the tape itself, and the transcript of the tape, as well as from the appellant himself about what was recorded as the telephone conversations, and were entitled to have that evidence in mind when considering the Crown case, that the appellant had indecently assaulted the complainer.

[6] In relation to the remaining grounds of appeal, counsel for the appellant submitted that the trial judge's charge to the jury was fatally flawed in respect that he used words which would indicate to the jury that they could find corroboration of the whole charge in the evidence of the distress of the complainer. The evidence of distress, apart from that of the complainer herself, came from the police who heard her screaming before they reached the door of the flat and observed her distress once they went into the flat. The trial judge's directions to the jury in relation to the matter of corroboration start on page 15D of the transcript of the charge and conclude at page 17F. Those directions are in two paragraphs and Mr. Bell concentrated on the second and longer of those paragraphs. The first paragraph deals both with the assault upon the complainer and a separate alleged abduction and assault upon a Mrs. Cockcroft. However, it is important to observe the full terms of what was said about corroboration. The directions read as follows:

[7] The submission was that the direction, beginning with the words, "Corroboration can also be found in appropriate cases of this sort, ladies and gentlemen, from the condition of the victim, spoken to in evidence, after the crime, what we call distress" and containing the words, "If...the condition of the victim after the event points to what happened during it, then you are entitled to find corroboration of what is said to have happened from that state." would lead the jury to suppose that the victim's distress could corroborate the whole assault including the indecency elements. Thus the direction was quite inconsistent with the full bench decision of Smith v. Lees 1997 S.C.C.R. 139. Particular reference was made to the Opinion of the Lord Justice Clerk at pages 163D to 165F. The evidence as to the distress of the complainer could not, for example, corroborate the averment of fact that the appellant did "force her to remove her clothes". Nor could it corroborate the averment that he did "place [his] hand over her mouth". Equally her condition of distress was not capable of corroborating the averment in the charge that the appellant had demanded that she engage in sexual intercourse with him.

[8] In our opinion, this submission fails. We accept, of course, that proof that the alleged victim of an indecent assault was seen to be distressed shortly after the alleged assault was said by her to have taken place has limited corroborative value. That is made clear both by the decision in Smith v. Lees and in various examples given by their Lordships in delivering their Opinions in that case. Evidence of distress, in an indecent assault case, is not apt to corroborate the particular details of the modus of the alleged assault. Evidence to corroborate such details, when it is essential to do so, must be obtained from other evidence of other matters. In the present case, however, there was evidence that the complainer was locked inside the flat, the door having been locked by the appellant. So there was evidence to corroborate that she was detained against her will. The jury were entitled to find in the evidence of the recorded telephone conversations that the appellant repeatedly told, and indeed commanded, the complainer to take off her clothing in order to have sexual relations with him. There is evidence that the complainer screamed before the police entered the flat. There was also evidence that she was in a state of distress when seen by the police. There is then evidence from various sources from which the jury were entitled to infer that there was a substantial sexual dimension to what was taking place in the flat and that what took place constituted an assault aggravated by indecency.

[9] When we consider the terms of what the trial judge said to the jury on the matter of corroboration we note that, in dealing with charge 3, the alleged abduction of and assault upon a Mrs. Cockcroft, he said of the evidence that that complainer had received certain injuries, "I can direct you as a matter of law they (scil. the injuries) are available to you for corroboration of the charge as made out and spoken to by her in Charge 3." We emphasise the words "they are available to you for corroboration". Immediately thereafter, in a passage which related to the first charge, the assault upon Selina Marie Stokes, the trial judge said "Corroboration can also be found in appropriate cases of this sort...from the condition of the victim, spoken to in evidence, after the crime - what we call distress." In our view, it is correct to say that corroboration can be found in such a case in evidence as to the distressed condition of the victim; and it is correct to say, as the trial judge did, "...then you are entitled to find corroboration of what is said to have happened from that state [of distress]". He did not say that distress could corroborate every element of the assault spoken to by the complainer. It is in that context that the trial judge refers to the evidence of the police about the distressed condition of the complainer before adding that, in the case of the assault upon Selina Stokes, "you also have the tape recording itself which can be, as the Crown relies upon quite rightly, part of the equation." He concludes this reference to the matters of independently observed stress and the terms of the taped telephone conversation by saying that "If you accept it there is sufficient corroboration in the evidence in this case for Charge 1 to bring in a verdict of guilty...". We consider that the judge's charge has to be read as a whole. We do not consider that the trial judge told the jury that distress alone would provide corroboration of the complainer's evidence that she had been indecently assaulted in the manner described. Properly understood, what the trial judge was saying was that such evidence, like the evidence of the tape recording itself, was "part of the equation". It has to be remembered that these directions were given against the background that the complainer had given a detailed account of what she said had happened to her and had denied the appellant's account. The appellant had then given his detailed account and denied that given by the complainer. Evidence of the complainer's distress was not the only evidence that was capable of affording corroboration of part of her account; but it was available to assist the jury to interpret the events and to choose between the two principals. It was not in dispute that the complainer was within the locked house, screaming and in a state of some undress. The jury were entitled to understand the recorded telephone conversation as indicating that the appellant was demanding that she remove her clothes. In choosing between the two versions offered to them by the complainer and the appellant respectively, the jury were bound to have regard to the appellant's condition of distress as evidence pointing as to where the truth might lie. We do not understand the trial judge to have said to the jury any more than that this was evidence which was corroborative in character and which they were entitled to consider in arriving at their verdict, while considering all the other evidence in the case. The evidence of distress was not the only evidence relied upon as corroborative. Indeed there was ample evidence to warrant the conclusion that the assault was an indecent assault. It was not essential to corroborate each detail of the narrative. It is also noteworthy that, in addition to the stress observed after the police got into the flat, they heard the complainer screa

[10] Mr. Bell also criticised a particular paragraph reading, "and of course in this particular case you also have the tape recording itself which can be, as the Crown relies upon quite rightly, part of the equation." (italics added). The suggestion was that, as the appellant had offered a different interpretation of those parts of the taped conversation that he conceded had been recorded, the use of the words "quite rightly" were calculated to suggest to the jury that the Crown's interpretation of the telephone conversation was to be preferred. We think that such comment underestimates the intelligence of the jury. All that the trial judge was saying was that the Crown were perfectly entitled and quite right, if they saw fit, to rely upon the terms of the tape recording as supporting the Crown case. The jury had heard as the last witness the appellant himself and had just listened to a speech for the appellant delivered by senior counsel, Mr. Edgar Prais, Q.C. We do not consider that the use of the words italicised would mislead the jury.

[11] In all the circumstances we consider that there was ample corroboration, that the jury were entitled to place interpretation unfavourable to the appellant's account upon the recorded telephone conversation and were entitled to infer that there was an assault upon the complainer was aggravated by indecency. The assault itself was amply corroborated by the fact of her being locked in the house, the taking from her of the telephone and damaging it before throwing it out of the window, her overheard screams while locked in the house and her state of distress. We do not consider that the directions quoted were likely to mislead the jury as to the corroborative role of evidence of distress. For these reasons the appeal fails.