Scottish High Court of Justiciary Decisons

McDonagh v. Her Majesty's Advocate [2002] ScotHC 6 (15 February 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lady Cosgrove Lord Wheatley	Appeal No: C25/97 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by DAVID MICHAEL McDONAGH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Jackson, Q.C.; McCusker, McElroy & Co.

Respondent: Armstrong, A.D.; Crown Agent

15 February 2002

1. The appellant went to trial at the High Court at Forfar on a charge of rape. His brother stood trial on the same indictment and in his case also the charge was one of rape. The same young woman was the complainer in both charges. The Crown's position was that first the appellant's brother had raped the complainer and then, he having left the room, the appellant had entered and had raped her.
2. At the end of the trial the appellant's brother was acquitted of the charge of rape but the appellant was convicted.
3. It appears from the trial judge's report that in the earlier part of the evening the complainer had gone to a public house where she had behaved in a drunken and provocative fashion. It also appears that she went voluntarily to the house where the alleged rapes took place. The position of both the appellant and his brother was that the complainer had been a willing participant in sexual intercourse with him. In a police interview, the appellant gave an explanation for the complainer's distress as having risen after sexual intercourse between him and the complainer had taken place. The appellant himself did not give evidence.
4. In relation to each charge, therefore, the question was whether the Crown had proved that intercourse took place without the consent of the complainer. In particular, in relation to the charge against the appellant, the issue for the jury was twofold. In the first place, they had to determine whether they accepted the complainer's account on the essentials of the charge, including her account that sexual intercourse with the appellant took place without her consent, as credible and reliable. In the second place, if they did so, the jury then had to determine whether there was other independent extrinsic evidence which confirmed or supported that account.
5. At the time of the trial and at the time when this appeal was marked, there was some doubt about the position when an accused person put forward an alternative explanation. It is, however, now settled that the mere fact that an accused person puts forward an account which can give an alternative explanation for extrinsic factors, such as distress, does not mean that evidence of such a factor cannot provide corroboration of the complainer's account. On the other hand, the jury still require to consider, having regard to the explanation tendered, whether they are satisfied that the factor does in fact support the complainer's account that sexual intercourse took place without her consent.
6. In the present case, while there was material otherwise to support the complainer's account that she was assaulted, it is clear from the trial judge's charge and his trial report that the evidence of distress was the material upon which the Crown founded to support the charge of rape in the case of the appellant.
7. The appeal has been presented on the basis that, as set out in the amended grounds of appeal, the trial judge misdirected the jury in that he failed to direct the jury as to how distress can be used for corroboration of an allegation of rape spoken to by a complainer. Mr. Jackson for the appellant submitted that in all that was said by the trial judge in the course of his charge, there was nothing that sufficiently complied with what was laid down as necessary for a direction on the use to be made of distress in Moore v. HMA 1990 SCCR 586 and Vetters v. HMA 1994 SCCR 305. The trial judge had not directed the jury that they had to be satisfied that the distress exhibited by the complainer was caused by the rape. At best, what had been said by the trial judge, namely that they were able to use the evidence of distress as corroboration if they considered it to be attributable to the conduct of the accused, was insufficient as an appropriate direction.
8. We have considered carefully the criticisms made by Mr. Jackson of the trial judge's charge under reference to the passages to which he particularly pointed. But the charge requires to be read as a whole and in the context of the trial. The trial judge reminded the jury that they could not convict the appellant of rape unless they accepted as credible and reliable the complainer's evidence that sexual intercourse had taken place with the appellant without her consent. This was the starting off point for the Crown case. The jury were directed that they could only proceed on the basis of her evidence if at the same time they had rejected the defence for the appellant as was contained in his police interview. Having so directed the jury, it is plain, upon a fair reading of his charge thereafter, that the trial judge was proceeding on the assumption that the complainer's evidence that she had been raped was acceptable to the jury as credible and reliable. When he came to look at the matter of corroboration of that evidence, and thus to direct the jury on the matter of distress as sufficient to constitute independent extrinsic evidence supporting the complainer's account, he made it clear that the jury required to consider at the same time the alternative explanation, given by the appellant in his police statement, that the distress sounds, and hence the distress, arose after the end of the sexual acts and were unrelated to them. He went on to make clear that the jury had to balance the explanations. It was against that background that the trial judge came to advise the jury that they could use distress as corroboration if they considered that it was attributable to the conduct of the appellant. In context, the jury could have had no difficulty in understanding that they could only use distress as corroboration if they rejected the alternative explanation for it and accepted that it had been caused by the rape. In the case of Vetters one of the charges was of indecent assault. In relation to that charge, the Crown had relied on distress for corroboration of the complainer's evidence. In that case Lord Justice Clerk Ross said at p.309A, under reference inter alia to the case of Moore:

"If evidence of distress in a case such as the present is to be left to the jury, they must be directed to consider whether the distress was caused by the alleged assault and was not due to some other factor."

That is precisely what the trial judge did in the present case. Accordingly, we are satisfied that there was no misdirection in the trial judge's charge.

9. There was a further ground of appeal to which Mr. Jackson referred, namely that the trial judge had failed consistently to maintain the position that the case against the two accused should be looked at separately. We have read the particular passage referred to in the ground of appeal. It appears in a part of the charge in which the trial judge is dealing with the case against the first accused, who was acquitted. At more than one point in his charge the trial judge tells the jury that they must consider each of the charges and the evidence in relation to that charge separately. It is quite clear that the jury must have been well aware that they required to do so in the light of the discriminating verdicts they returned. There is therefore no foundation for this ground of appeal.
10. Accordingly we shall refuse the appeal against conviction. However, the appeal against sentence remains to be argued.