Scottish High Court of Justiciary Decisons

Peace v. Her Majesty's Advocate [2003] ScotHC 4 (6 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C317/01 OPINION OF THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION by JAMES STRATHEARN PEACE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: G. Jackson, Livingstone, Q.C.; Carr & Co.

Respondent: G. Hanretty, Q.C.; Crown Agent

6 February 2003

1. According to the report of the trial judge, the complainer was a member of the staff of a restaurant at Tyndrum who attended a party in the staff accommodation. The party was also attended by the appellant who was not a member of staff, but had the use of a room in the accommodation. After the party the company went to the bar of a local hotel where the complainer showed signs of severe intoxication. She was helped back to her room and put to bed. Thereafter two other members of staff went to her room and found the appellant having sexual intercourse with her. They summoned another member of staff, Mr. A.J. Moore, who came into the complainer's room and spoke to the appellant and the complainer before leaving them in the room together. At about that time or some time thereafter one of the other members of staff returned to the room and found that the appellant was engaged in oral sex on the complainer.
2. In the course of his charge the trial judge referred to the fact that counsel for the appellant had addressed the jury in regard to the defence that the appellant had a genuine belief that he had had the consent of the complainer. The trial judge then directed the jury as follows:

"Well, ladies and gentlemen, it would be pure speculation for you to enter into that field and to say that was the basis on which there was contact between them; there is absolutely no evidence in this case on the basis of which you could arrive at that conclusion. Either [the complainer] was unconscious, as described in the charge, or she was not".

He then referred to the statement which the appellant had made when he was interviewed by the police, commenting that it was "all plain evidence of consent if you accept it". He went on to say:

"So if in the end of the day you were in reasonable doubt about whether [the complainer] was conscious to the point she could consent, then the Crown would not have proved the case".

3. In this appeal the appellant complains that the trial judge should have left it open to the jury to consider the defence that the appellant had a genuine belief that he had the consent of the complainer.
4. It is no doubt true that in, the great majority of cases in which an accused is charged with sexual assault and it is not in dispute that sexual behaviour took place, it is unnecessary for the trial judge to put to the jury as a separate issue the question whether the accused had a genuine belief that the complainer had consented. The complainer and the accused will usually have given clearly opposing accounts in regard to that matter. In that situation, if the substance of the complainer's account is accepted by the jury, the accused cannot have entertained any genuine belief that she had consented. If, on the other hand, the evidence of the accused that she had consented is accepted or at any rate creates a reasonable doubt as to whether the complainer did not consent, he will fall to be acquitted. There may, however, be cases in which part of the evidence suggests that the complainer may have given the impression that she was consenting when this was not the case. This may be part of her own evidence or evidence from a third party. In that situation the trial judge will have to consider whether the jury should be asked to consider, as a distinct issue, whether, even if they do not wholly accept the account of the accused, they accept that he had a genuine belief that the complainer was consenting, or at any rate that there is a reasonable doubt about the matter.
5. In the present case the evidence of the complainer and the appellant did not present the jury with opposing accounts as to whether the complainer consented to the appellant's sexual conduct towards her. While the appellant's statement to the police, which was before the jury, contained an account of how the complainer had not only consented to, but actually invited, sexual intercourse with him in her room, the complainer stated in evidence that she had no recollection of events from the time when she was speaking to someone in the hotel bar to the point where she woke up in bed on the following morning at about 11 a.m. She also said in evidence, according to the report by the trial judge, that when she went to the bar she had no intention of having sexual intercourse, and that it would not even have crossed her mind to have sex with the appellant. However, she said that she might have invited the appellant to her room but did not know; that she might have had consensual sexual intercourse with him and was in court to find that out; and that she might have said to him, as he alleged, "Fuck me Jimmy" when she was drunk.
6. The charge which the accused faced was that the conduct complained of took place while the complainer "was asleep and in a state of unconsciousness, and bereft of the power of resistance owing to her being intoxicated". It is clear that the Crown sought to establish to the satisfaction of the jury that she was in that state as a means of demonstrating that she could not, hence did not, consent to that conduct.
7. There was undoubtedly evidence, and in particular evidence given by the two members of staff who went to the complainer's room, that the complainer was then in a state which corresponded to what was alleged in the charge. However, as Lord Marnoch has pointed out, there was other evidence as to the state of the complainer before and shortly after their visit which suggested that the complainer was not at these times unconscious, but was apparently able to consent. I have some sympathy with the view which was taken by the trial judge about the question which counsel for the appellant had sought to put to the jury as a distinct issue, in so far as his remarks may have reflected the strength of the evidence that the appellant's actions took place when the complainer was in such a state that she was not able to consent. However, the evidence given by the eye witnesses, on which the question of the state of the complainer depended, had to be considered along with its possible temporal qualifications. It is in these somewhat unusual circumstances that I am in agreement with Lord Marnoch that the trial judge should have directed the jury that it was open to them to consider, as a distinct issue, whether they accepted that the appellant had a genuine belief that the complainer had consented or at any rate they were not satisfied beyond reasonable doubt that he had no such belief. Having regard to the significance of the absence of such a direction I am in agreement that there was a miscarriage of justice in this case. In these circumstances it is unnecessary to consider the other grounds of appeal.
Peace v. Her Majesty's Advocate [2003] ScotHC 4 (6 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C317/01 OPINION OF LORD CAMERON OF LOCHBROOM in APPEAL AGAINST CONVICTION by JAMES STRATHEARN PEACE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

Appellant: G. Jackson, Livingstone, Q.C.; Carr & Co.

Respondent: G. Hanretty, Q.C.; Crown Agent

6 February 2003

8. It is undoubted that a man cannot be guilty of indecent assault if he has a mistaken but genuine belief that the woman was a consenting party, since an essential element of the crime is the absence of an honest belief on the part of the man that the woman is consenting to the conduct which is libelled in the charge of indecent assault. No point is taken against the trial judge's charge as to the constituent elements of the crime with which the appellant was charged. In particular, no criticism is made of the passage in his charge where he directs the jury that it is indecent assault to have sexual intercourse with a sleeping or unconscious woman who has not consented. Likewise no exception is taken to the direction that evidence of prior sexual intimacy between the appellant and the complainer related only to the credibility of the complainer and provided no basis for concluding that there was consent to any sexual activity when unconscious.
9. have had more difficulty than your Lordships in being satisfied that the trial judge erred in commenting to the jury that it would have been pure speculation for the jury to hold that there was on the appellant's part a genuine but mistaken belief that he had the complainer's consent to conduct himself in the manner libelled in the charge and of which he was convicted. I note that before the jury, as recorded by the trial judge in his charge, counsel for the appellant said that the appellant's position on the question of consent was clear, namely that she relied upon the explanation given by the appellant at interview by the police. The trial judge quotes two passages from the interview. In the first of these the appellant stated that the complainer had said "I want you to fuck me". In the second, the appellant stated that the complainer "wraps her legs round and we were kissing and were cuddling and she knew I was there". These statements, as the trial judge himself told the jury, were all plain evidence of consent if the jury accepted the evidence. That is to say, the appellant's evidence, consistent with honest belief, was of invitation and active co-operation by the complainer throughout the sexual activity. Furthermore the trial judge then went on to direct the jury that if in the end of the day the jury were in reasonable doubt about whether the complainer was conscious to the point where she could consent, then the Crown would not have proved the case. This statement provides, I consider, no foundation for the criticism that trial judge left the jury with an all or nothing choice. In particular I observe that immediately before these passages the trial judge had directed the jury that either the complainer "was unconscious, as described in the charge, or she was not" (my emphasis). Taken in context this statement cannot, in my view, be seen as prejudicial to the appellant.
10. In the first ground of appeal it is accepted that the trial judge was correct in directing the jury that the appellant's position was that the complainer had been conscious and had consented to the sexual activity. The trial judge, however, is said to have excluded from the jury's consideration a half-way house position in which the appellant could have entertained an honest but mistaken belief that the complainer was consenting from a consideration of the matters referred to by Lord Marnoch. I am unable to accept this line of argument in this case. The degree of "semi-consciousness" spoken to by the witness Moore does not seem to me to be other than a state when the complainer was not unconscious. Such a state was not consistent with the state of the complainer as described by, or with the words and actions of the complainer as spoken to, by the appellant at interview so far as these matters were put before the jury in evidence. In the case of Meek the court took note of what was said by the Lord Chancellor in Morgan to the effect that where there were two stories each wholly incompatible with the other, the court should be careful to resist counsel's suggestions which involved taking the stories apart in sections and thereby giving rise in some way to a situation which might conceivably have been acceptable to a reasonable jury in which, while the victim was found not to have consented, the accused could conceivably either reasonably or unreasonably have thought she did consent.
11. The submissions for the appellant, which reflected what is said in the first ground of appeal, were based upon the Crown evidence from the witness, Moore, and other Crown evidence that although at times the complainer was not consistently orientated to the extent of appreciating where she was, she was also at times apparently able to communicate. These submissions appeared to me to be founded upon the proposition that it was open to the jury to reject the appellant's account at police interview but to infer from the evidence forming the Crown case that the appellant had a genuine but mistaken belief that the complainer had been consenting to the sexual conduct libelled. The submissions extended to suggesting that in his direction to the jury that either the complainer was unconscious or she was not, the trial judge had failed to allow the jury to consider evidence led for the Crown of the varying degrees of consciousness, lucidity and orientation of the complainer spoken to in evidence and so imposed upon the jury a choice between accepting the defence position or rejecting it and thus holding the opposite to be true.
12. The Crown case rested, of course, not upon the complainer's evidence since she said that she had no recollection of what had happened, but upon the evidence of witnesses who had been in her company during the course of the evening and from what was to inferred as to her state of consciousness throughout the relevant period of time. That period of time, in terms of the libel, extended throughout the sexual activity specified in it which activity gave rise to the injury libelled. These witnesses spoke to the complainer becoming heavily intoxicated in the course of the evening and of her being helped back to her accommodation in the hotel where she worked. One of the witnesses, Glen, said that she had put the complainer to bed and that the complainer was asleep when she left the room. The appellant thereafter had come to this witness's room. He had left saying that he was going to visit the complainer in her bedroom next door. She went on to say that she had become alarmed when she could hear nothing through the thin walls between her own and the complainer's bedroom. This was unusual. She contacted another witness, De Oliveira. Together they stood in Glen's bedroom listening for conversation and then heard a thud. De Oliveira had gone to the complainer's room and opened the door. She said that the complainer was unconscious on the bed and her eyes were closed. The appellant was on top of her and was moving between the complainer's legs with his trousers down. Glen and De Oliveira then alerted the latter's boy friend, Moore. He went to the complainer's room. He spoke to the complainer. The complainer was described by him as "semi-conscious" but appeared to agree that, as the appellant had told Moore immediately beforehand, she was with the appellant. Moore then left the room. The appellant however remained in the complainer's room. Thus far the Crown case was, as the trial judge correctly advised the jury, that the complainer had remained in an unconscious state throughout the time that appellant had been in her room up to the moment when De Oliveira opened the door of the bedroom and therefore was, as the libel stated, asleep and in a state of unconsciousness and bereft of the power of resistance owing to her being intoxicated.
13. If the jury had already rejected the appellant's statement at police interview that the complainer had been conscious and had consented to sexual activity in the manner in which he described, namely by speaking to him and inviting him to have sexual intercourse with her and actively co-operating with him when he did so, then, with all due respect to what Lord Marnoch says, I find nothing in the evidence otherwise which can suggest that the complainer was able to simulate apparent consent in words and actions of the nature spoken to by the appellant simply from the evidence of her condition prior to being put to bed or from the evidence of her condition when found by Moore. The true issue, it seems to me, was that to which the trial judge directed attention, namely, whether the inference to be drawn from the evidence of the witnesses speaking to what they heard and saw from the time that the complainer was put to bed until she was observed later, was that at all times she was unconscious in the manner libelled in the charge and so did not consent to the sexual activity that took place. If, as the appellant accepts, the jury must have rejected the account given by him as to the reactions of the complainer during the period prior to the arrival of Moore, and that was the full extent of the sexual conduct between the appellant and the complainer, then, in my opinion, no question of honest but mistaken belief on his part could arise since any honest belief could only be read along with his account. If the account was rejected, with it went honest belief. The appellant did not of course give evidence himself at the trial. All that would then be left to the jury was the question whether the Crown case had been proved beyond reasonable doubt.
14. However, there is an aspect of the evidence which, in my opinion, does reflect upon the issue of consent although in a somewhat different way from that for which Mr. Jackson contended but one which required an appropriate direction to have been given to the jury. De Oliveira gave evidence to the effect that some time after the visit by Moore, she had returned to the complainer's room to check if the appellant had gone. On this occasion she observed the appellant doing oral sex upon the complainer, that is to say, at a point of time after Moore had spoken to the complainer and observed her "semi-conscious" state. While De Oliveira's evidence was not entirely clear, it was consistent with statements made by the appellant at police interview, which the trial judge records in his report, that after the departure of Moore, the complainer had invited him back into her bed. Indeed part of the transcript which was before the jury also indicates that the appellant appeared to agree to a question put to him suggesting that some twenty minutes after Moore's visit Glen and De Oliveira had gone back to the complainer's room and had seen him having oral sex with her. This is the only reference in the course of the evidence to oral sex between the appellant and the complainer. The appellant was, of course, convicted inter alia of such sexual conduct and of the resulting injury. But this body of evidence was consistent with a situation in which the complainer, while having been apparently unaware of any sexual contact between her and the appellant prior to Moore's visit, then became aware of his presence in her bed and by her subsequent conduct not only consented to what then took place but can also be said to have thrown light upon her attitude to anything that had taken place up to the time when Moore saw and spoke to her. I observe that the complainer did not deny that she would have been willing to engage in sexual conduct with the appellant. Indeed, as Lord Marnoch notes, she stated that it was possible that she had invited the appellant to "fuck" her and that she had had consensual intercourse. I have sympathy with the trial judge because this aspect of the evidence does not appear to have been reflected in the submissions made on behalf of the appellant before the jury. Rather counsel appears to have been content to make the assertion that the appellant could have entertained an honest but mistaken belief that the complainer was consenting throughout without any explanation of how that could have arisen from the evidence heard by the jury short of acceptance of his statements at interview about her conduct as being the truth.
15. For these reasons, while differing from those given by your Lordships, I agree that the appeal succeeds. In these circumstances, I also agree that it is unnecessary to consider the further grounds of appeal which were argued before us.
Peace v. Her Majesty's Advocate [2003] ScotHC 4 (6 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C317/01 OPINION OF LORD MARNOCH in APPEAL AGAINST CONVICTION by JAMES STRATHEARN PEACE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: G. Jackson, Livingstone, Q.C.; Carr & Co.

Respondent: G. Hanretty, Q.C.; Crown Agent

6 February 2003

16. The charge of which the appellant was convicted is in the following terms:

"(2) on 16 April 2000 at the Little Chef Restaurant, Tyundrum you did assault [name], c/o Central Scotland Police, Stirling and while she was asleep and in a state of unconsciousness, and bereft of the power of resistance owing to her being intoxicated, remove her clothing, lie on top of her, insert your private member into her private parts, have sexual intercourse with her and lick her private parts while in her said unconscious state and without her consent to her injury."

17. From the terms of the charge it is immediately apparent that the gravamen of the charge was that the accused indulged in sexual activity with the complainer while she, the complainer, was in an "unconscious state" and thus unable to give her consent. However, it is also clear, both from the charge and from all the evidence in the case, that if the complainer was in an "unconscious state", that was a state induced by alcohol. While I do not doubt for a moment that alcohol can produce such a state it is nonetheless important to remember that a state so induced may be intermittent rather than constant. Thus, in the present case, there was evidence that, when in the public house prior to the alleged incident, the complainer at one point collapsed in the Pool Room and was thought to have no pulse. However, a short time later she "came to" again. Likewise, when she was eventually assisted to her room, the evidence, according to the trial judge's Report, was that "the complainer started nit-picking again" and later apologised to a colleague in slurred speech before falling asleep. Most importantly, perhaps, there was undisputed evidence that a very short time after the events complained of a witness, Mr. Moore, had spoken to the complainer and asked her if she was "with" the appellant. The complainer, whom he described as being at that stage "semi-conscious" had replied in the affirmative.
18. Against the foregoing background - and leaving aside the complication of oral sex as to the timing of which there is, perhaps, some dubiety - there is no dispute but that the Crown case depended essentially on the evidence of two of the complainer's colleagues who at one point went into the complainer's room and found the appellant in the act of full sexual intercourse. According to the trial judge one such colleague described the complainer as being then unconscious with no movement in her eyes, whereas the other described her as being "out cold" and "like she was still sleeping". As against that, the appellant's account to the police was that he, the appellant, had gone to the complainer's room to ask how she was, following which they had had "a wee blether". At some point he had told the complainer that he was going to bed because he was tired, whereupon the complainer had invited him into her bed to "have a cuddle" - something which on the undisputed evidence had happened on at least two prior occasions. According to the appellant's account the complainer had then whispered to the appellant that she wanted him to "fuck" her and to that end had taken off her top and brassiere and wrapped her legs around him. The appellant then spoke to being interrupted by the complainer's colleagues and to the conversation with Mr. Moore following which, according to the appellant, the complainer invited him back into bed. They had then gone to sleep together before, at a later stage, having oral sex. Although, however, the appellant gave the foregoing account of matters to the police it is, I believe, very important to remember that the appellant also spoke to the complainer being throughout in a drunken condition.
19. Before turning to the law I should perhaps add, for the sake of completeness, that the complainer, herself, had no recollection whatever of the incident in question. However, she accepted it was possible that she had invited the appellant to "fuck" her and that she had had consensual intercourse. She had heard accounts from others regarding the events of the evening in question and was in court to find out what had happened.
20. The first ground of appeal is that the trial judge erred in refusing to direct the jury that the appellant should be acquitted if he held a genuine but mistaken belief that the complainer had consented to the sexual activity in question or even if there was a reasonable doubt on that matter. What the trial judge said on this matter is as follows:

"Mention has been made by Miss Livingstone of the defence that there was on Mr. Peace's part a genuine belief that he had [name]'s consent. Well, ladies and gentlemen, it would be pure speculation for you to enter into that field and to say that that was the basis on which there was contact between them; there is absolutely no evidence in this case on the basis of which you could arrive at that conclusion. Either [name] was unconscious, as described in the charge, or she was not."

21. According to Mr. Jackson the trial judge's approach on this matter was too "black and white". In short, the present was a classic example of the "half-way house" type of case referred to in Meek and Others v. H.M. Advocate 1982 S.C.C.R. 613.
22. In my opinion Mr. Jackson's submissions on this matter are well-founded. With all due respect to the trial judge it was, I believe, an oversimplification to say that, "Either [name] was unconscious, as described in the charge, or she was not." Granted that the complainer was at times conscious and at other times unconscious there must have been periods when she was, to use the words of Mr. Moore, "semi-conscious" and these varying states seem to have followed on each other quite rapidly. In my opinion, it is in just such situations that misunderstandings may well arise. Moreover, at a later point in his charge the trial judge, himself, seems to see the matter as one of degree when he says this:

"So if in the end of the day you were in reasonable doubt about whether [name] was conscious to the point she could consent, then the Crown would not have proved the case."

In my opinion the jury may well have approached matters in precisely that light and formed the opinion that, whatever the complainer might or might not have said or done, she was in no condition to give conscious consent to the sexual acts which had taken place. Indeed, if one accepts the complainer's evidence that she had no recollection of the events in question, it is difficult to see how she could possibly have given what might be described as actual or meaningful consent to what had occurred. Again, however, it is, in my opinion, in precisely that sort of situation that the direction sought and refused should be given. In the result, I must respectfully disagree with the trial judge's comment that it would have been "pure speculation" for the jury to say that there was on Mr. Peace's part a genuine but mistaken belief that he had [name]'s consent. In any event, it was only necessary that the jury be satisfied that he might have entertained such a belief to the extent of raising a reasonable doubt as to his guilt. Had the requisite direction been given in this case it seems to me not at all unlikely that the jury's verdict would have been different. In that situation I am of opinion that this appeal must be allowed.

23. On the view I have taken it is unnecessary to consider the remaining grounds of appeal.