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Cite as: [2005] HCJAC 109, [2005] ScotHC HCJAC_109

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Hyung Joon Kim v. Her Majesty's Advocate [2005] ScotHC HCJAC_109 (13 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Wheatley

Lord Macphail

[2005HCJAC109]

Appeal No: XC46/04

OPINION OF THE COURT

delivered by LORD MACPHAIL

APPEAL AGAINST CONVICTION

HYUNG JOON KIM

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Carroll, McClure, Solicitor Advocates; McClure Collins

Respondent: Beckett, Q.C., A.D.; Crown Agent

13 October 2005

[1] The appellant was found guilty in the High Court at Edinburgh on 7 November 2003 on a charge of rape and two charges of breach of the peace. He was sentenced to five years' imprisonment on the charge of rape and to concurrent sentences of one year's imprisonment on each of the charges of breach of the peace. The Court also recommended that a deportation order be made. He has appealed against both conviction and sentence on the charge of rape, but at the hearing of the appeal his solicitor advocate intimated that the appeal against sentence was no longer insisted in. The appeal against conviction is taken on the ground that there were misdirections by the trial judge in relation to the question whether the appellant honestly believed that the complainer was consenting to sexual intercourse. The questions for this Court are whether any such misdirections were given and if so, whether they were so material as to have led to a miscarriage of justice.

[2] The charge of rape was in these terms:

"(1) on 29 or 30 September 2002, both dates inclusive, at Marine Drive, Edinburgh, you did assault [L], c/o Lothian and Borders Police, Edinburgh, and confine her within motor car registration number M29 RKS, kiss her on the mouth, place your hand between her legs, handle her breasts, remove her clothing, remove her from said car, push her to the ground, insert your fingers into her private parts, attempt to insert your private member into her mouth, masturbate yourself, lie on top of her, place your hand over her mouth, force her legs apart and rape her."

The appellant lodged a notice in terms of section 78 of the Criminal Procedure (Scotland) Act 1995 which stated, as quoted in the judge's charge:

"that the panel pleads not guilty in respect of charge 1 of the indictment, and further specially and without prejudice to said plea that the complainer consented to all sexual activities libelled in said charge."

The jury by a majority convicted the appellant as libelled.

[3] The complainer's evidence, which the jury by their verdict showed they accepted as true, was to the following effect. On the evening of 29 September 2002 she had been celebrating her recent nineteenth birthday and had been drinking with friends. Before midnight she was alone in George Street and was sitting on some steps, quite drunk, and crying because she was upset. The appellant pulled up in his car. After some conversation she got into the car asked him to take her to a friend's house in Leith Walk. He drove off in the opposite direction and stopped the car in Granton. He tried to kiss her. She resisted and wanted to get out of the car: she was clear that he was wanting to have sexual intercourse. She got out of the car. He pushed her to the ground. She recollected that some of her clothing was off and he was on top of her, having sex with her. When he was doing that she told him to stop and tried to push him away. She was scared. At one point he had his hand over her mouth.

[4] It was conceded by the defence that sexual intercourse had taken place. At the hearing of the appeal the appellant's solicitor advocate did not demur to the jury's acceptance of the complainer's account. Nor was it contended that there was insufficient evidence of force. The issue of the appellant's belief as to the complainer's consent had not been intimated in the section 78 notice, as section 78(2A) appears to require, but no point was taken about that before us or, apparently, at the trial. The appellant's solicitor advocate maintained that at the trial the appellant had raised the issue in the following passage in cross-examination, where the accused was being asked about his answers to police officers in the course of an interview:

"Q.- Go back to page 34 [of the transcript, Crown production no, 10] please. After that passage I have just put to you, that is the one that says 'cos I always believed', the sergeant then said to you that you were not answering this question and you then went on to say, 'Yeah, but I believe true position but and when I was kissing she actually didn't want me to touch', yes? A.- Yes, because she said no.

Q.- And then you go on exactly, Mr Kim, to say 'And so it could be rape so I was worried about that'? A.- Yes.

Q.- Well . . . ? A.- In different point. In my point it could be sex but she said no, although she was hesitating but by English language no means no so it can be she didn't want to have sex, it can be developed like this, so in her point of view if she thought about this as a rape, it could be possible to be said as a rape. That is what I thought."

[5] Leaving aside until later the question of what that passage may mean, it is clear that at the trial the issue of belief as to consent did not otherwise arise in the course of the evidence. The only live issue at the trial, as is obvious from the transcripts of the evidence and the speeches, was whether the complainer had consented to sexual intercourse. The complainer was cross-examined on the lines that she had consented to sexual intercourse in the car. It was not suggested to her that there had been any room for misunderstanding by the appellant about her willingness to have intercourse. The appellant gave evidence that the complainer had taken the initiative by undressing and saying, "Let's have sex"; she had totally agreed about having sex with him; they had had intercourse in the car, and had attempted intercourse outside the car. The appellant admitted that when interviewed by the police he had maintained that he had never met the complainer at all, until he was told that DNA samples would be taken from him. He then told the police that he had taken her into his car and had sexual intercourse with her at Granton.

[6] In his speech to the jury the solicitor advocate who then appeared for the appellant told them:

"In fact, the position in this case is that the accused accepts that there was sexual contact, there was sexual intercourse occurred between him and [L] but it was with her consent." (Page 227, lines 3-7.)

Later, having referred to another matter, he said:

"The reason I am not asking you to do that, ladies and gentlemen, is because Mr Kim, the accused has given an account of sexual conduct which, let's face it, if you reached the conclusion that it was non-consensual, that [L] didn't accept it, then your duty is to convict him. It is as simple as that." (Page 233, lines 16-23.)

Near the end of his speech, however, he said:

"So far as charge 1 is concerned on the other hand I ask you to consider this: that even if [L] on reflection feels that she didn't consent but that her actings were such that she left the accused with a reasonable [sic] belief that she did consent then you should acquit him but it has to be a reasonable [sic] belief." (Page 241, lines 2-10.)

[7] The trial judge, in the course of directing the jury on the issue of consent, said:

"Now, ladies and gentlemen, in considering the issue of consent, you must also bear in mind what was said by the accused. At interview, during the afternoon, and in the witness box his position was quite clear. The complainer consented to the intercourse that took place within the car, and that as far as any sexual activity outside the car was concerned, that the complainer not only consented to it, she was, one might put it, taking the lead in what was happening.

"Ladies and gentlemen, if you believe the evidence of the accused on this issue of consent you must acquit him. And likewise, if the evidence he gave has given rise to a reasonable doubt in your minds as to whether or not [L] consented to intercourse, then likewise you must acquit.

"Ladies and gentlemen, there is a further matter I must deal with in relation to the issue of consent. And this arises out of another submission that Mr Keegan made to you yesterday afternoon to the effect that if [L] had left the accused with a reasonable belief that she was consenting to any intercourse that took place, then the accused was entitled to a verdict of acquittal.

"Ladies and gentlemen, I have to direct you that if you are satisfied, first of all, that intercourse took place between the accused and [L] as the Crown alleges, and if you are satisfied that [L] did not consent to that intercourse, it would still be open to you to acquit the accused if you reached the view that the accused had genuinely and honestly thought at the time of the intercourse that the complainer was consenting to what was happening.

"Ladies and gentlemen, that is obviously a question of fact for you to consider. In a charge of rape an accused is not entitled to be acquitted if he acted without thinking, or if he was reckless or completely indifferent as to whether or not he had the consent of the woman with whom he was having sexual intercourse. But if you are satisfied that the accused in the present case did genuinely and honestly believe that [L] was consenting, even if you consider that belief to have been unfounded, then under our law the accused is entitled to be acquitted.

"The accused's position is that the complainer [L] did consent to any intercourse that took place. If you accept that the accused was telling the truth when he gave that evidence - and that is entirely a matter for you to decide - it follows necessarily that the accused must have honestly and genuinely believed that [L] was consenting to the intercourse that was taking place, even if you now take the view that she was not. Accordingly, on this issue of belief on the part of the accused, there is evidence before you which you could accept, if you chose to do so, which would entitle you to acquit the accused, even if you had previously reached the conclusion that she did not in fact consent to intercourse." (Charge, pages 44 line 20 - 47 line 13.)

[8] It was submitted on the appellant's behalf that the judge had misdirected the jury. The appellant had raised the issue of honest belief. The judge should have directed the jury that it was for the Crown to negate honest belief. He had taken away from the jury the obligation to acquit and left them with an entitlement to acquit by saying only that it was "open" to them to acquit and that they would be entitled to acquit. There had been a hint that it was for the appellant to prove the existence of an honest belief. It was submitted under reference to Makin v Attorney-General for New South Wales [1894] AC 57 at 69-70 that there had been misdirection which might have influenced the jury to return a verdict of guilty. Reference was also made to Meek v H M Advocate 1982 SCCR 613, Jamieson v H M Advocate 1994 SCCR 181, Doris v H M Advocate 1996 SCCR 854 and McPhelim v H M Advocate 1996 SCCR 647. This Court could not determine how the jury would have determined the issue if they had been properly directed: Henvey v H M Advocate 2005 SCCR 282 at 290, paragraph 21. The appeal should be allowed.

[9] The Advocate depute submitted that the charge should be considered as a whole. The trial judge had repeatedly directed the jury that there was no burden of proof on the appellant. To say that the presence of an honest belief entitled the appellant to be acquitted was to the same effect as saying that the absence of an honest belief that the woman was consenting was an essential element in the crime of rape (Meek v H M Advocate 1982 SCCR 613 at 618; Peace v H M Advocate 2003 SCCR 166 at 169F-G). The trial judge's statement that it had been "open" to the jury to acquit did not undermine his direction that the appellant would be entitled to be acquitted. In any event there was room for the view that no direction on the absence of honest belief was required at all. The reality was that honest belief had been barely in issue. The jury had been given a clear choice between an unwilling complainer and an actively consenting complainer. When assessing the appellant's credibility the jury had been entitled to have regard to his lies to the police. This had been a case of forcible rape; and the inference of mens rea readily followed from the use of force. Accordingly no direction as to honest belief had been required (McKearney v H M Advocate 2004 SCCR 251, Lord Justice Clerk Gill at 254, paragraphs 8, 11 and 12; Spendiff v H M Advocate 2005 SCCR 522 at 535, paragraph 35). Once the basic directions in a rape case had been given, it depended on the circumstances, and in particular on the evidence, whether any further directions were needed to enable the jury to apply their minds correctly to the issues which they had to decide (Doris v H M Advocate 1996 SCCR 854 at 857E). Here, the trial judge's directions on honest belief had been unnecessary.

[10] In our opinion the question whether the appellant had an honest belief that the complainer was consenting to sexual intercourse was never properly raised at the trial. We have considered the short passage in the cross-examination of the appellant which was founded on by his solicitor advocate as raising the issue. It is difficult to understand what it means, but in any event it does not appear to us to indicate that the appellant was saying that he had entertained an honest belief as to the complainer's consent; rather it suggests that he was there seeking to explain that, when responding to questions put at the police interview, he had recognised that, if the complainer had not wanted sex, that could amount to rape. The defence was conducted on the basis that this was a case in which the only question was whether the complainer had consented to intercourse with the appellant, until belated reference was made to the question of belief at the end of the defence speech to the jury. That reference is itself difficult to understand; and it does not suggest any evidential basis on which, if the jury accepted the complainer's account of what physically had happened, they might nonetheless be able to find that the requisite mens rea on the part of the appellant had not been proved. We consider that in view of the absence of any foundation in the evidence for any defence of honest belief the trial judge would have been entitled to instruct the jury to disregard that issue and to refrain from giving them any directions upon it. Moreover, this was a case of forcible rape: the complainer's evidence, which the jury accepted, was that the appellant pushed her to the ground, lay on top of her and raped her with his hand over her mouth. In these circumstances there was no need for a specific direction on the question whether the appellant honestly but mistakenly believed that the complainer consented, the line of defence not having expressly put that question in issue (McKearney at 254, paragraphs 11 and 12).

[11] The directions which the trial judge gave do not appear to us to be open to serious criticism. The charge was delivered on 7 November 2003, before the opinions in McKearney were issued on 16 January 2004. It may be that if the judge could have had the advantage of considering these opinions he would have framed his directions in somewhat different terms. He did, however, clearly explain to the jury the elements of the crime of rape, and he repeatedly emphasised that the burden of proof rested on the Crown throughout a trial for rape (charge, pages 17 line 9 to 18 line 12; page 23 lines 5-11; page 24 lines 15-21; pages 28 line 18 to 29 line 15). So directed, the jury cannot have understood that there was any burden of proof on the appellant in relation to the issue of honest belief. The judge made it plain to them that if they were satisfied that the appellant honestly believed that the complainer was consenting, he was entitled to be acquitted. It is only on inappropriately close analysis out of context that the expressions "open to you" and "entitle you" might be said to indicate that the jury had an option whether to acquit or not. It is now clear, in the light of McKearney, that it would have been preferable to frame any necessary direction in terms which indicated that it was for the Crown to prove the absence of an honest belief by corroborated evidence; but upon a consideration of the charge as a whole we are satisfied that the jury were not led into error.

[12] The issue for us is not whether or not the directions might have been differently expressed, but whether or not there has been a miscarriage of justice.

We consider that the charge when read as a whole was well fitted to deal effectively with the realities of the situation before the jury, and we cannot regard the directions complained of as material misdirections. We are accordingly of opinion that no miscarriage of justice has occurred and that the appeal must be refused.