Scottish High Court of Justiciary Decisons

ROBERT ALEXANDER MACKIE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 68 (26th July, 2001)

[1] The appellant is Robert Alexander Mackie who was convicted at the High Court at Glasgow of a charge in these terms:

The appellant was given leave to appeal against his conviction on the ground that the trial judge erred in directing the jury that they could convict him of rape, as no reasonable jury properly directed could have done so. The note of appeal goes on to specify that the evidence of the police surgeon taken against the evidence as a whole was "too ambiguous" and incapable of providing the necessary corroboration of the complainer's account. The appellant refers to Fox v. H. M. Advocate 1998 J.C. 94 at p. 100 H where the Lord Justice General reserved his opinion as to whether there might be cases where circumstantial evidence was so ambiguous that no reasonable jury could choose the interpretation of that evidence which would support, and hence corroborate, the direct evidence. The appellant also cites a passage (1998 J.C. at p. 114 A - B) where Lord Kirkwood envisages that there could be a situation in which the evidence was so inherently ambiguous as not to be capable of providing the necessary corroboration. We, for our part, would add that the Lord Justice General, having referred to the possible exception of irredeemably ambiguous circumstantial evidence, said this (1998 J.C. at pp. 100 I - 101 B):

The issue in this appeal is, therefore, whether the medical evidence was so ambiguous that no reasonable jury could choose to interpret it in such a way that it would support the direct evidence of the complainer. If not, it was a matter for the jury to decide whether they interpreted the medical evidence in such a way that it fitted with the complainer's direct evidence and so provided the necessary corroboration.

[2] The appellant admitted having had sexual intercourse with the complainer on the occasion in question but said that this had been with her consent. The only issue, accordingly, was whether the Crown had established that the intercourse had occurred without the complainer's consent and as a result of force, as the complainer said.

[3] On the occasion in question the complainer had taken her daughter to see her daughter's father, Robert Montague, who was at the appellant's house. At about 7 p.m. Mr. Montague and the girl went to sleep in a bedroom and the complainer and the appellant sat drinking in the living room. The appellant made advances to the complainer who told him to get lost. According to the complainer, he then became violent, punched her on the side of the left eye, hit her repeatedly, grabbed her arm, told her to shut up, pulled her on to the settee, lay on top of her and tried to kiss her on the lips. At one point he held her down by the neck. At another point, the complainer managed to move away towards the stereo and the appellant grabbed some jewellery chains and tore them from her neck. Finally he pulled down her trousers and pants. Throughout this the complainer was telling him to stop and at one point the appellant told her to shut up or he would "give her a doing". Eventually, the complainer gave up. As she put it: "I knew if I didn't ... I'd just get hit." He then raped her.

[4] As can be seen from this account of the complainer's evidence, she spoke to a struggle during which she was struck on the upper part of her body and was threatened. As a result, she eventually gave up the struggle and the appellant had sexual relations with her.

[5] In his evidence Dr. O'Keefe spoke to having found injuries on various parts of the complainer's body. In particular he had found a swollen tender area above the right eyebrow and on the cheek bone, under the right eye. These injuries, which could have been inflicted over a period that included the time of the alleged attack on the complainer, were consistent with direct blunt trauma, such as a punch. There were also two scratch marks on the right cheek and a scratch, which could have been caused by a finger nail, below the right ear. On the right neck, Dr. O'Keefe observed a fresh linear abrasion which was consistent with a jewellery chain being pulled from the complainer's neck. Above the complainer's right collar bone there were two fresh abrasions which were consistent with someone scratching or scraping two fingers down the front of the complainer's body. There was a bruise on the inner aspect of her left arm and a smaller bruise on the inner aspect of her right arm, both at the level of the biceps. There were further bruises on the inner aspect of the right forearm. The bruising on the complainer's arm was of a classical pattern consistent with pressure being applied.

[6] It is noteworthy that Dr. O'Keefe found nothing to suggest that blows or other force had been applied to the lower part of the complainer's body or, in particular, in her genital area or to the inner aspect of her thighs.

[7] In cross-examination it was suggested to Dr. O'Keefe that the injuries which he had seen were evidence of a minor assault and that they were not consistent with a serious assault. He agreed that they were not the kind of injuries that you would expect following a serious assault with an implement, but it seems plain that he was not saying that the injuries were inconsistent with a serious assault, such as rape, where no implement had been used. Moreover, Dr. O'Keefe agreed that there was nothing in the genital area suggestive of force and that in a case of alleged rape one would normally be looking for bruising or other injuries, say, in the area of the inner thighs, but there were no such injuries here. In re-examination, however, he confirmed that his findings were consistent with a rape victim who had ultimately decided just to let the attacker get on with it, or else she would get a doing.

[8] The argument for the appellant is that in this case the evidence of Dr. O'Keefe can be regarded as so ambiguous that the jury would not have been entitled to find in it support for the complainer's account that she had been assaulted and threatened and had, eventually, given in and allowed the appellant to have sex with her, even though she was not consenting. In particular, Mr. Jackson, Q.C., argued that the injuries noted by Dr. O'Keefe did not, and could not, even on the complainer's own account, provide the necessary corroboration of the appellant's evidence of the rape in question since on that account there would have been no injuries distinctive of rape rather than of mere assault. Mr. Jackson therefore argued that the injuries were equally consistent with an assault on the complainer, not as part of a rape but on some separate occasion.

[9] In that connexion he drew attention to a passage in that part of the trial judge's charge to the jury where she was putting before them various points, favourable to the defence, which they should bear in mind when considering the complainer's evidence. The trial judge referred to the evidence of a Constable Bissland who had gone to the complainer's house the following day in relation to an alleged burglary which the complainer had reported to the police. According to Constable Bissland, the complainer said something to the effect that the man who had raped her the previous evening had assaulted her that day. Defence counsel had not put this point to the complainer in cross-examination and so we do not know what her position on it would have been. Mr. Jackson accepted that the complainer should have been asked about the matter if the defence intended to attach importance to it, but he argued that, none the less, there was no particular reason to doubt the accuracy of the police officer's report. That assault the day after the intercourse would have been consistent with the signs seen by Dr. O'Keefe. We reject that argument. For one thing, we would not attach great weight to a hearsay report of an alleged comment that had never been explored with the complainer. More importantly, Dr. O'Keefe detected certain injuries - in particular the bruises which suggested that the complainer had been gripped tightly and the abrasion on the complainer's neck which could have been caused by pulling off her jewellery - which were consistent with the complainer's account of the assault in the course of the rape but which would not be so readily explicable by a simple assault.

[10] We should add that, as the trial judge points out in her charge, not only was the complainer not asked about an alleged assault by the appellant the following day, but she was actually cross-examined to the effect that Robert Montague had attacked her - which she denied.

[11] As we have just mentioned, the trial judge placed before the jury a whole series of features of the evidence that they could take into account when weighing the credibility and reliability of the complainer's account. There is no need to repeat that catalogue in full. We merely mention, for instance, the facts that the complainer was drinking heavily on the evening in question, that when she went through to the bedroom, she did not tell Mr. Montague she had been raped and that she did not leave the flat until fairly late the following day after spending time in the company of the appellant. When the complainer went home and eventually called the police, it was to report a break-in there rather than the rape. All these were, undoubtedly, features which the jury required to weigh up when deciding whether to accept the complainer's account. But they were matters for the jury and not for this court. Moreover, it is precisely in a case like this that the value of the doctrine of corroboration can be most easily seen.

[12] We accept, of course, that there were some discrepancies between the complainer's account of the assault and Dr. O'Keefe's evidence as to the site of certain of the injuries. The significance of these discrepancies was a matter for the jury to consider and Mr. Jackson did not suggest that they were so fundamental as to be fatal to the essential features of the complainer's account. Moreover, we do not consider that this is a case where the evidence of the injuries seen by Dr. O'Keefe was irredeemably ambiguous. Particularly having regard to the evidence of bruises to the complainer's arms, consistent with gripping, and to the evidence of a bruise to her neck area, consistent with the complainer's jewellery having been torn off, we are satisfied that it was open to the jury to find that Dr. O'Keefe's evidence fitted with the complainer's direct evidence that she had been assaulted and threatened by the appellant before she gave up and submitted to sexual intercourse. That being so, it was for the jury to decide whether to adopt that interpretation of the medical evidence. In the light of the trial judge's directions, we must assume that the jury did indeed adopt that interpretation and so found in Dr. O'Keefe's evidence the necessary corroboration of the complainer's evidence.

[13] For these reasons we are satisfied that the jury returned a verdict which a reasonable jury would have been entitled to return if properly directed. The appeal against conviction must accordingly be refused.

[14] The appellant has also appealed against sentence but the only ground put forward is based on a misunderstanding and is without merit. In the circumstances Mr. Jackson did no more than move the appeal formally. We are satisfied that the sentence of five years imprisonment cannot properly be regarded as excessive and we accordingly refuse this appeal also.