Scottish High Court of Justiciary Decisons

JOSEPH WILKES v. HER MAJESTY'S ADVOCATE [2001] ScotHC 70 (27th July, 2001)

[1] The appellant is Joseph Wilkes who was convicted after trial in the High Court at Edinburgh on 27 April 2000 of four charges. The first was a charge of lewd, indecent and libidinous practices. The second charge was one of rape. The third charge alleged a contravention of section 3(1) of the Sexual Offences (Scotland) Act 1976, and the fourth, a contravention of section 2(c) of the same Act. The complainer in respect of all four charges was A.D., born on 17 July 1974, the daughter of the appellant's cohabitee.

[2] The period covered by the charges was from 28 November 1983 until 6 July 1989. During that time the complainer lived in family with her mother and the appellant. She was the oldest child in the family. Her mother was, and is, a hopeless alcoholic. The complainer gave evidence that when she was about 9 years of age the appellant came into her bedroom when she was asleep in bed and began handling and fondling her private parts and kissing her on the chest and mouth. Some weeks later he had penetrative intercourse with her. Intercourse continued thereafter on a frequent and regular basis until she reached the age of 15. In order to discourage her from reporting his activities, the appellant told the complainer that the family would be split up if she did so and that, in any event, no one would believe her. She therefore told no one but, when she was about 14, she asked to be taken into care in order to avoid the appellant's continued attentions. She returned home at weekends and the appellant continued his abuse during her visits.

[3] The trial judge tells us in his report that the complainer's evidence was powerful and convincing but, understandably, there was no other eye witness evidence of the abuse complained of. For corroboration, the Crown relied on certain implied admissions made by the appellant in about May 1997 when he and the complainer's mother visited the complainer and her husband at their home in Kelso. According to the complainer, she decided to confront the appellant and ask him why he had abused her. She said to him: "Tell Mum that you had sex with me." The appellant's response was: "I'm really sorry, I didnae mean for this to happen". She then asked him why he did it to her and his response was: "I'm sorry. I must have been sick."

[4] At the hearing before us, Mr. Murray, Q.C., who appeared for the appellant submitted that the prosecution was not entitled to rely on what he referred to as the confrontation reply by the appellant as corroboration of the complainer's evidence of abuse. The trial judge erred in rejecting the no case to answer submission and in holding that there was a sufficiency of evidence in respect of all four charges. The jury had been invited to use the same piece of evidence to establish a multiplicity of charges. This, it was argued, contravened the rule that an accused cannot be found guilty of more than one offence on the same set of facts. Reference was made in this connection to Dickson v. H.M. Advocate 1994, S.C.C.R. 478. That case concerned prosecution under two separate sections of the Misuse of Drugs Act 1971 on evidence relating only to the recovery of one quantity of drugs. It does not, in our view, assist in the present case.

[5] Mr. Murray criticised the approach of the Crown and the trial judge which was to treat the narrative of the four charges as representing a single continuous course of conduct by the appellant involving, initially, non-penetrative, but subsequently, penetrative abuse. He conceded, however, that if, in place of charges 2, 3 and 4, the appellant had faced a single charge of rape of the complainer on various occasions between 1983 and 1989, his argument would have been untenable. He suggested that the Crown could well have adopted that approach and have charged the accused with the common law crime only.

[6] In this connection, we observe that a girl under the age of 12 is presumed in law to be incapable of giving consent to sexual intercourse. For that reason, it is the usual practice to charge the common law crime of rape where the complainer is under the age of 12 and to rely on the relevant statutory provisions where she is between the ages of 12 and 16. Departure from that practice in the manner suggested by Mr. Murray would not only risk circumventing the specific legislative provisions but would, in addition, fail to reflect the fact that Parliament has enacted that sexual intercourse with a girl under the age of 16 is unlawful, whether or not she consents to such intercourse. In our view the Crown adopted the correct approach.

[7] It has not been necessary, for the purpose of disposing of this appeal, to reach a view as to the sufficiency of the available corroborative evidence in this case. That is because of the conclusion we have reached in respect of another issue raised in the grounds of appeal and focused at the hearing before us by certain concessions made on behalf of the Crown. Firstly, it was conceded that the advocate depute who appeared at the trial erred in his address to the jury by inviting them, when looking for corroboration of the complainer's account, to have regard to all of the evidence they had heard in respect of the appellant's responses at Kelso. As we have narrated that included evidence by the complainer. But her evidence on those responses could not, of course, provide corroboration of her evidence in relation to the commission of the offences. As the trial judge points out in his general directions on corroboration, the jury could not convict the appellant unless there was evidence available to support her account from a separate source. In the particular circumstances of this case, the only available separate source was the complainer's husband, T.D., and the advocate depute ought, therefore, to have explained to the jury that, no matter how credible they found the complainer, they could not convict the appellant unless they accepted her husband's evidence as to what he said he heard at Kelso. The Crown also conceded that, since the trial judge did not correct the error into which the advocate depute fell, nor did he include a specific direction in his charge that the complainer's husband's evidence was the only evidence which could afford the corroboration necessary for conviction, there had been a misdirection.

[8] The advocate depute sought to persuade us, however, that that misdirection did not amount to a miscarriage of justice. In this connection, he drew our attention to the passage in the charge at which the trial judge deals with this matter. Having explained to the jury that the only evidence which is capable of providing corroboration of the complainer is the evidence of what the appellant said when he was confronted by her at her house in Kelso in May 1997, he then goes on to say:

The advocate depute's submission in this regard was to the effect that since the trial judge had used the word "and" to link the reference to the evidence of M. and that of her husband, there was no real risk that the jury might have taken the view that they could convict the appellant if they believed the complainer's account of what happened at Kelso but did not believe that of her husband.

[9] The advocate depute also sought to persuade us of the significance of a response made by the appellant in the course of a tape recorded police interview when it was suggested to him that when he visited her house at Kelso he had said to the complainer that he was "really sorry". The response by the appellant was in the following terms: "Well I might have said I'm sorry but it's a load of rubbish." That, it was submitted, could be read as an admission by the appellant that he had said he was sorry to the complainer at Kelso. We do not consider that the reply in question, when considered in its context, is reasonably capable of bearing the inference suggested by the advocate depute. In any event, while the trial judge does refer to the contents of the police interview, it is clear when the charge is examined as a whole, that he did not, at any point, suggest to the jury that they could regard what was said by the appellant at that stage as a possible source of corroboration of the complainer's evidence. In our view he was correct not to do so.

[10] While the complainer's mother was present in the house at Kelso when the confrontation between the complainer and the appellant took place, we are told by the trial judge that she was a reluctant witness and, that when the advocate depute eventually resorted to putting to her a police statement which she had made in August 1997, her position was that she could not remember what had happened, or what she had said to the police, or whether what she had said to the police was true.

[11] It follows that T.D's evidence of what he heard the appellant say in the house in Kelso is the only available source of corroboration in this case. When we examine that evidence, we see that, at its highest, the witness spoke to a positive response by the appellant to an allegation of abuse by the complainer and an assertion that he was sorry and that he was sick. Even assuming that evidence of a general admission of that nature by the appellant was indeed capable of providing sufficient corroboration of the four charges which he faced, as to which we express no opinion, it was clearly not the strongest corroboration. Further, T.D. was apparently not present in the house throughout the whole confrontation. The transcript discloses that his account of precisely what he heard both the complainer and the appellant say was somewhat tentative and it was only in re-examination by the advocate depute that his evidence reached its highest point. In these circumstances, it was in our view vital that the jury fully understood both the significance of that witness's evidence and the fact that they required to reach a view as to its credibility and reliability as a separate adminicle of evidence.

[12] While the trial judge undoubtedly gave careful general directions on corroboration and properly stressed its importance, he did not include in his charge a specific direction to the jury that they could only convict the appellant if they accepted the complainer's husband's evidence that he heard both the complainer's allegation and the appellant's reply. That was a crucial direction in the circumstances, particularly in the context of the error in approach by the advocate depute. We find it impossible to avoid the conclusion that the omission of such a direction constitutes a miscarriage of justice. The appeal must accordingly be allowed and the convictions quashed.