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Cite as: [2005] ScotHC HCJAC_110, [2005] HCJAC 110

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Blyth v. Her Majesty's Advocate [2005] ScotHC HCJAC_110 (26 August 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Johnston

Lord McEwan

[2005HCJAC110]

Appeal No: XC413/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION

KENNETH JOHN BLYTH

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Carroll, solicitor advocate, McClure; McClure Collins

Respondent: Dr A. Brown, solicitor advocate, A.D.; Crown Agent

26 August 2005

[1] On 6 February 2003 at the High Court in Edinburgh the appellant was convicted of a charge of rape. According to the terms of the charge of which he was convicted, in a portacabin at a building site in Edinburgh on 30 September 2002 he

"did assault (the complainer) pull her to the floor, pull down her lower clothing, lie on top of her, force her legs apart, penetrate her hinder parts with his private member, turn her over, remove her clothing and expose her breasts, kiss her on the breasts and did rape her all to her severe injury".

The appellant pled guilty to a second charge which libelled that he committed a breach of the peace on 8 October 2002 by telephoning another woman by means of a mobile telephone and leaving an answer phone message threatening violence towards her and placing her in a state of fear and alarm for her safety.

[2] The complainer in the rape charge gave evidence that she visited a public house which was near her house twice during the evening of 29 September 2002. According to the report of the trial judge, she said that on the first occasion she was in the company of friends, one of whom was C, with whom she had had a lesbian relationship for almost four years. She saw the appellant there, but did not know him or speak to him. She returned to the public house on her own at about 10:45 p.m. She left at about 12:30 a.m. in the company of the appellant who had been speaking to her over the last hour. He told her that he was a security guard on a building site. She accepted his invitation to have a cup of tea in a portacabin on the site. When they entered it she asked if she could use the toilet. However, the appellant pushed her forward, so that she fell on to the floor. He closed the door and put out the lights. She got up on to her hands and knees. The appellant unfastened her jeans and pulled them down with her shorts. He attempted anal penetration. He tried three times before he succeeded. She was asking him to stop but got no response. It was very painful when he penetrated her. He turned her over and penetrated her vagina. She tried to push him away. He used his legs to keep her legs open. Penetration lasted for five or six minutes. He pushed up her shirt and touched and kissed her breasts. He said to her that the only reason that she was a lesbian was because she did not know what a good man was. She was asking him to stop when he penetrated her. She repeatedly told him to get off her and leave her alone. He could have been in no doubt. Eventually, he withdrew and got up. Both of them adjusted their clothing. She left and went home where she went to have a bath. C got up and spoke to her. The complainer told C what had happened. C told her not to have a bath and telephoned the police who arrived 10 minutes later. Thereafter the complainer was medically examined. The complainer stated that there were marks on her which had not been present before the incident. Her anus was very painful and the medical examination was very uncomfortable. She stated that she had not consented to the incident. She was not interested in men.

[3] C gave evidence that in the public house she had told the appellant about her lesbian relationship with the complainer. After she returned home with the complainer she went to bed, whereas the complainer went out again. When the complainer eventually returned she heard her running a bath. This seemed to her to be unusual. She got up to see whether the complainer was all right. The complainer did not seem to be herself, but was very upset. She told her that she had been raped by the security guard at the nearby building site. C knew whom she meant. She told the complainer not to have a bath and telephoned the police immediately. When the police came, the complainer was in a state of shock. She was scared. She was shaking so much that she could not hold a cup of tea. One of the police officers who attended gave evidence that the complainer became upset when he asked her questions. She had trouble speaking as if she was trying to stop herself from sobbing. Her hand was shaking so much that she had to put down her cup of tea.

[4] Evidence was given by a police surgeon who examined the complainer later on 30 September 2002. She noted two areas of recent bruising, two on her arms and two on her breasts. She saw no injury on examination of the genitals. She expressed the opinion that this was of no significance as very few victims had such injury if they were beyond the age of puberty. However, she found two deep lacerations to the anus, both of which were bleeding. The complainer was clearly in pain. She also found other superficial abrasions in the same area between the one o'clock and the seven o'clock positions. She gave evidence that her findings were consistent with the account given by the complainer.

[5] The appellant lodged a special defence in which it was stated that he intended to found on a defence of consent in respect to the charge. He gave evidence on his own behalf. He stated that he got into conversation with the complainer after she returned to the public house about 11 p.m. She told him that she had fallen out with C (which was disputed by the complainer and C). They exchanged addresses and telephone numbers. She was looking for work. When they left together after closing time she was "tipsy". He asked her to come to the portacabin for coffee. She asked where the toilet was. He followed her. He wanted a 'one night stand'. She kissed him on the lips. They took off their clothes. He put a sleeping bag and pillow on the floor, where they lay down beside each other. They had sexual intercourse, first when he was on top, and then when she was on top. She put a condom on his penis. They tried a number of different positions. She leant on a table with her legs apart. He tried to penetrate her vagina from the back but was unsuccessful. He said that was probably when her anus was injured. She never struggled, said "no" or told him to stop. He never thought that she was not consenting. When he ejaculated she wanted more. He told her that he was too tired. She got a bit upset and left. He walked with her to the gate. She said that she would like to see him again 'on a casual basis'. He said that he was not so sure. The police arrived the following morning and detained him. He denied rape when he was interviewed by the police.

[6] It is not disputed that there was sufficient evidence to entitle the jury to convict the appellant. The grounds on which his appeal is based maintain that the trial judge misdirected the jury in a number of respects.

[7] As is set out on page 11-13 of the transcript, the trial judge gave the following directions to the jury:

"Now, the first crime that is mentioned in the charge, ladies and gentlemen, is assault. I am sure you are aware of what assault is but I require to define it in law for you. An assault is any deliberate attack on the person of another whether causing injury or not provided that it is done with wicked intent and not plainly justifiably or accidentally. An assault may be aggravated, that is to say made more serious, if it does cause injury or if, as is alleged in the present case, it causes serious injury. The next crime with which the accused stands charged is that of rape. In the case of an adult victim the crime of rape is committed when a man has sexual intercourse with a woman against her will. There must be penetration of the vagina by the penis but any degree of penetration, however slight, will suffice. Ejaculation or emission of semen is not necessary. The crime is not committed if the man actually and reasonably believed that the woman was consenting. From that it is clear that what turns the usually natural, necessary and often pleasurable activity of sexual intercourse into a crime is therefore the absence of consent on the part of the woman. That is a matter of fact which the Crown has to prove beyond reasonable doubt, being of the essence of the crime. In this case the act of sexual intercourse, as I have defined it, is admitted by the accused. The only real issue in the trial therefore is whether the Crown has proved to your satisfaction beyond reasonable doubt that that took place against the will of the complainer. Ladies and gentlemen, in cases of sexual assault such as this, the law recognises that such crimes are likely in their very nature to be committed in conditions of privacy. Two important consequences follow from the recognition. The first is that clearly in such circumstances the evidence of the complainer is crucial. Her evidence has to be the very basis of the Crown case. Without it there can be no case at all. If you do not believe the complainer or if you have any reasonable doubt about her evidence, then that is an end of matter. If on the other hand you accept her evidence, you must still go on to look for corroboration, and that is where the second legal speciality may have a part to play, and it is this: where in the case of a charge of sexual assault there is independent evidence that the complainer was seen to be in a state of distress after the event and while you are satisfied that the distress was genuine and was in whole or in part attributable to the fact that she was raped then you may use that distress either on its own or taken along with other evidence such as injury. You may use that distress as corroboration of the complainer's account that she was raped ... "

[8] Mr Carroll, who appeared as solicitor advocate for the appellant, maintained that, in referring to two crimes, the trial judge had de-constructed the charge. The jury would have had no basis for considering that the special defence of consent applied to 'the first crime' since the trial judge had not mentioned it in this connection. We do not consider that there is substance in this complaint. It is commonplace for a trial judge to give such directions in regard to the different types of criminal conduct libelled within a charge as forming part of a single incident. In some cases there is an issue as to whether the jury might convict in regard to only some of the allegations. In others the case is either established as a whole or not at all. In the present case the jury were left in no doubt that the defence case was that the complainer consented throughout the incident. Earlier in his charge (at page 6) the trial judge had directed the jury in general terms that if they considered that the evidence of the appellant amounted to a denial of guilt, and if they believed that denial or it raised a reasonable doubt in their minds they should acquit.

[9] Mr Carroll's main complaint was that the trial judge had failed to give adequate directions in regard to honest belief on the part of the appellant. In particular he failed to direct the jury that, even if they held that the complainer did not consent to sexual intercourse, because they believed her evidence, they must nevertheless consider, on the evidence, whether or not the appellant honestly believed, however mistakenly, that she did. Mr Carroll added that the trial judge had been in error in directing the jury that the belief also required to be reasonable. He emphasised that it was for the jury to determine what the appellant thought at the time. There was room for them to take the view that injury sustained by the complainer had occurred accidentally as a result of the appellant attempting to have vaginal intercourse with the complainer. It followed that the trial judge was in error in directing the jury that the only real issue was whether the Crown had proved to their satisfaction that sexual intercourse took place against the will of the complainer. Both the actus reus and the mens rea were facts which the Crown must prove by corroborated evidence.

[10] In our view these submissions are without foundation. It should be obvious that, as a generality, a charge should be shaped by reference to the issues that truly arise on the evidence in the particular case. To introduce other issues would be, not only unnecessary for the judge, but also confusing for the jury and potentially adverse to their reaching a just verdict on the evidence. In the present case the Crown sought to prove that the appellant had sexual intercourse with the complainer, who did not consent, by means of force. The complainer gave evidence to that effect, and the jury were entitled to treat independent evidence as to her injuries and distress as providing support or confirmation for her evidence. The clear, and indeed the inevitable, inference from a conclusion that the appellant obtained sexual intercourse by means of force was that he knew that she was not consenting, or at any rate was reckless or indifferent as to whether or not she was consenting, and hence he had mens rea. The defence case, on the other hand, in support of which the appellant gave evidence, was that he did not use force but that the complainer consented throughout, and indeed actively encouraged sexual activity between them. In these circumstances the conviction of the appellant turned on what they made of the conflicting accounts of how the complainer and the appellant behaved overtly towards each other, considered in the light of the evidence as a whole. The appellant's evidence that the complainer was consenting plainly implied that he believed at the time that she was consenting. However, there was no discrete issue in the present case as to whether such belief was mistaken, though genuine. While it is no doubt correct as a proposition of law that the crime of rape is not committed if the man believes that the woman is consenting, a direction to that effect where the Crown case is that sexual intercourse was obtained by force is unnecessary. As was pointed out by the court in Doris v H M Advocate 1996 S.C.C.R.854 at page 857, a direction about honest belief in rape cases should only be given when an issue about honest belief has been raised in the evidence, and the 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. The present case is another example, despite the decisions in Gordon v H M Advocate 2004 S.C.C.R. 641 and Spendiff v H M Advocate 2005 S.C.C.R. 522, of ill founded attempts to introduce refinements relating to mens rea in cases where it is alleged that sexual intercourse has been obtained by force. We distinguish Patterson v H M Advocate 2005 HCJAC57, which was a case of non-forcible rape. For completeness we should add that the trial judge was clearly in error when he directed the jury that the crime of rape "is not committed if the man actually and reasonably believed that the woman was consenting". See Jamieson v H M Advocate 1994 SCCR 181. However, this misdirection did not give rise any miscarriage of justice. Apart from the question whether it was necessary for the trial judge to give any direction to the jury in regard to the appellant's belief, the addition of the words "and reasonably" did not make any material difference, since, on the appellant's account, there was nothing to raise any separate question as to whether his belief was reasonable.

[11] Mr Carroll raised a separate point in regard to the trial judge's reference to be use of evidence of distress. He submitted that such evidence was not evidence of mens rea of the appellant, and the that rape could not be said to have been committed until mens rea was proved by corroborated evidence to the satisfaction of the jury. These submissions were evidently intended to rely on the observation of the Lord Justice Clerk in McKearney v H M Advocate 2004 JC 87 at paragraph 16. However, as was pointed out by the court in Spendiff at paragraph 26, that observation was made in a case where the Crown did not allege that force had been used. In the present case the jury were entitled to treat independent evidence of distress, along with that of injuries, as supporting or confirming the complainer's evidence that she had not consented to sexual intercourse, but that it had been obtained by means of force. This provided corroboration not only for her evidence but also, by inevitable inference, for the necessary mens rea on the part of the appellant.

[12] It remains for us to deal with a further ground of appeal which questions the relevance of evidence on the second charge. In the course of the Crown case the jury heard evidence in support of that charge, to which the appellant pled guilty, after the closing of the case for the defence. According to the report by the trial judge the appellant gave evidence that he met the woman mentioned in this charge in the same public house and had sexual intercourse with her in the portacabin. There was also evidence that when he was interviewed by the police, he confused her with the complainer in the first charge. When he came to charge the jury the trial judge directed them at page 10 that, although the Crown had accepted the appellant's plea of guilty to the second charge, the evidence relating to that charge was still before them for their consideration. He stated that they would be entitled to consider any evidence against the appellant on that charge if they felt it to be relevant to the question of his guilt on the first charge. The Advocate depute informed us that the incident to which the second charge related followed the appellant's appearance in court on the first charge when he was granted bail, subject to a special condition that he should not visit the building site.

[13] We are not persuaded that it is beyond the proper function of the jury to determine the relevance of evidence on one charge to the question of guilt on another, as is maintained in the ground of appeal. The question which remains is whether the evidence on the second charge could not be of any relevance, which was a matter within the province of the trial judge. While its relevance was questionable, we are not satisfied that it could not have any bearing. The Advocate depute maintained, with some justification, that it was of relevance to the credibility of the account given by the appellant that he had parted from the complainer on the first charge on good terms. This could be said to inconsistent with his behaviour towards the other woman, with whom he had apparently confused the appellant. In our opinion this ground of appeal also fails.

[14] We will accordingly refuse the appellant's appeal against conviction.