Scottish High Court of Justiciary Decisons

"But there are certain facts which can be established only by corroborated evidence. These facts are variously described as 'fundamental' or 'crucial' or 'essential' facts or as the facta probanda, the facts which require to be proved. They are the elements which need to be established if the accused is to be found guilty of the crime in question - so, in rape, for instance, the Crown requires to prove (1) penetration of the complainer's vagina by (2) the accused's private member, (3) forcibly and (4) without the complainer's consent."

"(iii) mens rea on the part of the man is present where he knows that the woman is not consenting or at any rate is reckless as to whether she is consenting."

"It will be seen at once that a requirement for the use of some form of force does at least answer fairly conclusively (although not absolutely so) any question anent the lack of consent by the woman and/or the knowledge of that lack of consent on the part of the man, and I cannot but think that that or similar considerations were in the minds of those who have gone before us, including the institutional writers. In that connection, it is not, I think, without significance that there appears to be no separate treatment of knowledge or guilty intention on the part of the accused in any of the institutional texts."

"[O]n 26 November 1999 at [address specified], you did assault [the complainer] and seize her by the arms., kiss her on the mouth, hold her down on a bed, handle her breasts, remove her clothing, kiss her on the breasts, insert your fingers into her private parts, compel her to sit astride you, attempt to compel her to insert your private member into her private parts and did repeatedly rape her."

"The crime of rape consists in the carnal knowledge of a woman forcibly and against her will. Thus the mens rea of this crime includes the intention to have intercourse with the woman without her consent. The absence of a belief that she was consenting is an essential element in it [emphasis added]. If a man has intercourse with a woman in the belief that she is consenting to this, he cannot be guilty of rape. Now the question whether the man believed that the woman consented is a question of fact. It is a question which the jury must decide, if it is raised, on the evidence. The grounds for his belief will be important and if he has reasonable grounds for it, the jury may find it easier to accept that he did honestly believe that the woman consented. But it will be open to the jury to accept his evidence on this point even if he cannot give grounds for it which they consider to be reasonable, and if they accept his evidence they must acquit him ... The reason why, in rape cases, the man's belief need not be shown to be based on reasonable grounds for his belief to be relevant as a ground of acquittal is because of the particular nature of the mens rea which is required to commit the crime. Difficult questions of fact may arise as to whether, if he can give no reasonable grounds for his belief, the accused genuinely believed at the time that the woman was consenting or was reckless or indifferent as to the matter of consent. These questions are, however, for the jury to resolve, on proper directions by the trial judge, in the light of the evidence."

"on 5 November 2001, you did force entry to the flat at [address in Glasgow] occupied by [the complainer] and there you did assault said [complainer], repeatedly threaten to kill her, sit astride her, repeatedly place your hands around her throat and compress same, restrict her breathing, and further you did repeatedly handle her breasts, rub your private member against her body and rape her".

"The evidence disclosed that the appellant and the complainer had lived together for about three years at the address specified in the libel. They split up in August 2000 although there were occasions when they saw each other. They kept in touch with each other by telephone. Since August 2000 they had not had a sexual relationship with each other. The appellant had formed a relationship with another woman since the separation but the complainer had not (sic.). On Sunday 4 November 2001 the complainer went to bed and was asleep when she was wakened by her mobile phone ringing. She answered it. It was the appellant. He asked her to telephone him back but she refused to do so. The complainer returned to bed. Sometime thereafter her house telephone rang. The caller was telephoning from a payphone. It was again the appellant. He asked the complainer to telephone him but she refused as she had work the next day. She swore at the appellant because she was angry and trying to get to sleep as she had to get up for work. The complainer fell asleep but sometime later she wakened to find the appellant sitting astride her with his hands round her throat. He was compressing her throat. He said that he was going to kill her and thereafter kill himself. The complainer was finding difficulty with her breathing and felt her eyes bulging. The complainer had never seen the appellant like this and he had not been violent during their relationship. She was shocked and afraid. The complainer was struggling and eventually the appellant loosened his grip enabling the complainer to wriggle free. She got off the bed and ran round to the side of the bed where the telephone was. She picked up the receiver but the appellant came towards her, pushed her and she dropped the phone. The telephone became disconnected. The appellant pushed her back onto the bed and again put his hands at her throat with his thumbs at her Adam's apple. He again stated that he was going to kill the complainer. He was pressing at her windpipe. The complainer was panicking and finding it hard to breathe. He kept repeating that he was going to kill her. The complainer took the threat seriously. The complainer pulled at the appellant's hands and may have scratched them. The complainer's arms became caught in some curtains which fell from the curtain rail. At that point the appellant let go. He did not say anything. The complainer was crying. She asked if she could go for a drink of water. The appellant allowed her to do so but followed her into the kitchen. The complainer had never seen the appellant so angry before. He then became very quiet. The appellant was standing at the kitchen door while the complainer was in the kitchen having a drink of water. The complainer was afraid to attempt to escape because she knew that the appellant would prevent her from doing so. She took her time over drinking the water. The appellant told her not to take so long saying 'Don't try to prolong it. I can do in here what I was going to do in the bedroom.' The complainer thought that he was going to kill her. She was hysterical. The appellant said that her crying was annoying him. He looked very angry. She stopped crying to try to calm him down. They were in the kitchen for about half an hour.

He told her to go back to the bedroom which she did. In the bedroom he said 'I've had enough of this. I'm just going to kill you now.' He did not appear angry but the complainer thought that he was serious. He went to put his hands round her throat again and the complainer started to cry. She asked why he was doing this but got no reply. She said that she needed to go to the bathroom. He allowed her to do so. The bathroom was to the right of the bedroom at the end of the hall. The appellant sat on the end of the bed at the open bedroom door. The appellant would be able to intercept her if she attempted to escape. When she was in the bathroom the complainer could hear the appellant speaking to himself. She heard him say 'Just do what you came to do. Just kill her, John.' When the complainer came out of the bathroom the appellant appeared calm. She lit up a cigarette. The appellant was not saying anything. The complainer started to cry. He put his hand onto her shoulder and moved his hand down to her left breast. The complainer shook her head and took his hand away saying 'No, John, this isn't happening'. He got angry. He said 'You'll shag everybody else but you won't shag me'. He then said 'I've had enough. I'm just going to do it.' The complainer thought that he was going to kill her. She ended up against a window. He again put his hands round her throat but did not exert as much pressure as on previous occasions. She mentioned her son, who is aged seven, and asked the appellant who would look after him if the appellant killed her. There was then an argument about the complainer's son. The appellant wanted to see him and the complainer would not let him do so. The complainer's son spent a lot of his time with his maternal grandmother. In an attempt to appease the appellant she told him that she would see a lawyer and have a document drawn up to enable him contact with her son. The appellant stated that she was lying and said 'People who fear for their lives will say anything to save it.' There was a further discussion about her seeing a lawyer and the appellant appeared to calm down.

The appellant appeared to be calmer and told the complainer to get into bed and get some sleep. She said she didn't want to. He told her just to lie down. She lay on top of the bed and he lay down beside her. She had no intention of going to sleep because the appellant was unpredictable. He told her to go to sleep. She said that she didn't want to. He told her to turn round and, when she asked why, he said he was going to rub her back. She complied with his request for fear of what he might do otherwise. He was rubbing her back on top of her nightdress. Eventually he put his hand under her nightdress and continued rubbing her back. He then started rubbing his own body up and down against her. He moved her underwear to one side over one cheek of her buttocks. The complainer did not do anything because she was terrified. He started rubbing his penis against her bottom. He inserted his penis into her vagina. The complainer did nothing because she was terrified. She just lay there. She was frightened. He ejaculated. The complainer did not want to have intercourse with him. He did not even ask her if she wished to have intercourse. Eventually he got off the bed and said 'You'd better get ready for your work'. The complainer got up and had a bath. She got ready for work and arrived a little late. She was in a distressed condition and reported the matter to the police. The complainer had injuries consistent with her account of events, including bruising at her neck.

At his police interview the appellant admitted breaking into the complainer's home. He said that he did so because he thought that she was having an affair with one of his friends. Although they had been separated for some time and he had a relationship with someone else, the appellant did not think it appropriate that she was having such an affair. He explained that there had been an argument in the course of which he 'grabbed her by the throat', although he was indicating that this was simply a pushing movement with this thumb and forefinger in a 'v' shape. The appellant also stated in response to a question as to whether he had threatened to kill the complainer that he possibly could have. He could not remember saying that but he would not deny that he possibly did.

The appellant did not give evidence and the issue of a genuine belief of consent was raised in his speech to the jury by the solicitor representing the appellant. I refer to this at page 24, line 19 onwards in my charge. As is apparent from my comments to the jury, the basis of the submission by the solicitor for the appellant was that the complainer did not tell the appellant to stop at any stage. In the circumstances of this case I did not consider that there was any evidence relating to the absence of a belief that the complainer was consenting. The passages in the appellant's interview with the police between pages 24 and 26, where he is describing the intercourse, are indicative of consensual intercourse, with the complainer taking an active part. At one stage the appellant refers to the complainer taking his penis and rubbing it off the front of her clitoris."

"Now, Mr Finnieston [the defence lawyer] advised you that I would direct you that you may require to consider a third question, namely if you accepted that there was sexual intercourse against the will of the complainer, did the accused nevertheless believe that she was consenting? That submission was based on the complainer's evidence to the effect that she did not tell the accused at any stage to stop. Well, ladies and gentlemen, that evidence should of course be considered in the light of all the other evidence in the case, including the evidence of the complainer about what she claims occurred prior to that. There is no evidence from the accused, and I have explained he doesn't have to give evidence, but there is no evidence from the accused that he believed, he had a genuine and honest belief, that the complainer was consenting to intercourse. In the circumstances of this case, I direct you, ladies and gentlemen, that you should not consider the question of genuine and honest belief. So if you take the view that there was intercourse and it was against the will of the complainer then that is rape".

"Now the next thing, ladies and gentlemen, I want to say is this. There has been some evidence about distress and, as I have said, the Crown has to corroborate the crucial facts, namely that the crime was committed and the accused was the person who committed it. It is not necessary to corroborate incidental matters, only the essential facts I have mentioned."

"The trial judge has told us in his report that he has checked his notes of the speech of counsel for the defence and that he can find no mention in it of his having suggested that the appellant might have honestly but mistakenly believed that the complainer was consenting to sexual intercourse. He says that it was quite clear to him from the line of cross-examination of the complainer, the evidence of the appellant and counsel's speech to the jury on his behalf, that the defence was that the complainer consented. It seemed to him that the issue which had been raised in the case was a straightforward issue of fact, namely whether intercourse took place against the will of the complainer or whether it took place with her consent.

Miss Scott for the appellant accepted that the question whether a direction on honest mistake was required depended on the circumstances. In Meek v H.M. Advocate at p.618 Lord Justice-General Emslie said that in many cases there will be no part for such a direction to play. In that case, as in R. v Morgan, the two accounts were each wholly incompatible with the other. It was held that there was no room for the direction which the court in Meek, following R. v Morgan, would otherwise have considered to be appropriate. In Jamieson v H.M. Advocate (No. 1), on the other hand, where the direction was given but its terms were such that there was held to have been a misdirection, the appellant's evidence was that he thought that the complainer had consented to intercourse and that, in any event, he believed that he had her consent. Counsel accepted that the distinction which she was seeking to draw was a very fine one, but she maintained that the circumstances in the present case were such that the direction was required. She said that there was room in this case for a reasonable belief that the complainer was consenting, as there was no evidence of any threat or of any physical injury and there had been no noise. This was not then a case where the choice lay between two extremes. The Crown had to prove mens rea and that meant that they had to exclude a reasonable belief on the appellant's behalf that the complainer was consenting to intercourse.

The questions of fact which the jury will have to resolve depend in rape cases, just as in any other case, on the state of the evidence. The issues raised by the evidence will also determine, although to a lesser extent, the directions which require to be given by the trial judge. There are some basic directions which he must always give and no charge in a rape case will be complete unless he has explained to the jury what constitutes the crime of rape. But once the basic directions have been given, it must depend on the circumstances, and in particular on the evidence, whether any further directions are needed to enable the jury to apply their minds correctly to the issues which they have to decide. Directions which are unnecessary because they relate to matters not raised in the evidence should be avoided where possible. They will prolong the charge and may cause confusion and perhaps prejudice the accused. Furthermore, as the Lord Justice-General pointed out in Jamieson v H.M. Advocate (No. 1) at p.187A-B, difficult questions of fact may arise where honest belief is put in issue, especially as to whether the accused can give reasonable grounds for his belief. A decision will be required as to whether he genuinely believed at the time that the woman was consenting or whether he was merely reckless or indifferent on the whole matter. So a direction about honest belief in rape cases should only be given when the issue about honest belief has been raised in the evidence. A jury should not be invited to speculate on these matters if there is no basis for this in the evidence which has been led at the trial."