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Cite as: [2005] ScotHC HCJAC_112, [2005] HCJAC 112

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McNairn v. Her Majesty's Advocate [2005] ScotHC HCJAC_112 (18 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Wheatley

Lord Macphail

[2005HCJAC112]

Appeal No: XC660/04

OPINION OF THE COURT

delivered by LORD HAMILTON

APPEAL AGAINST CONVICTION

GEORGE DOUGLAS CAMERON McNAIRN

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: D. Burns, Q.C.; Michael S Allan, Aberdeen

Respondent: J. Becket, Q.C.; Crown Agent

18 October 2005

[1] The appellant was convicted after trial of having, on 22 May 2003 at an address in Aberdeen, raped the complainer.

[2] The complainer lived in a flat above that occupied by the appellant. They were on friendly terms. There was some inspecific evidence that she pestered him from time to time and wrote him notes. On the evening of 22 May the complainer went to the appellant's flat at about 8.00pm. Drink was taken and she decided to stay at his invitation. She undressed to the extent of removing her trousers and got into bed. The appellant remained in the same room, lying initially on a camp bed there. According to the trial judge's report, the appellant's evidence was that she fell asleep and was awakened to find the appellant having sexual intercourse with her. The intercourse, she testified, lasted for twenty minutes. Throughout that time she pretended to be asleep, as she was afraid of him. When intercourse finished, the appellant lit a cigarette and left the room. The complainer then got dressed and left the flat. She went to the flat of a male friend. She arrived there about 5.00am.

[3] According to the notes taken at the trial by counsel for the appellant and by the Crown junior, the complainer's evidence was to the effect that she had wakened, shortly before sexual penetration took place, on being moved by the appellant. She had, however, from the point of wakening, pretended to be asleep.

[4] In the course of the Crown case there was put in evidence a transcript of a tape recorded interview of the appellant by police officers, which had taken place a few days after 22 May. In the course of it the appellant gave an account of events in which he maintained that the complainer had been awake and that, on various grounds, he had believed that she was a willing party to the sexual intercourse which he admitted had taken place. Evidence was also led in the course of the Crown case of the condition of the complainer when she arrived at the male friend's flat at about 5.00am and also when she was later seen by a female friend. Evidence was further led from a witness, Robert Rennie, a friend of the appellant, about a conversation he had had with the appellant shortly after the latter had been detained, charged and arrested by the police in relation to the incident on 22 May.

[5] In evidence-in-chief Rennie accepted that he had on the evening of Monday 26 May gone to the latter's flat. The appellant had told him that he had been arrested for the alleged rape of the complainer. The examination continued:

"Did he say anything else?

- Nae really, no.

Did he go into details as to what had in fact happened?

- He told me that he did try sleeping with her but that is basically about all he said.

He told you that he did try sleeping with her?

- Aye.

What did you take that to mean?

- That he had tried it on.

That is what he told you?

- Well, basically, aye."

The Advocate Depute then moved on to other matters. Later he returned to the conversation on 26 May. The examination continued:

"And what did he have to say about [the rape allegation]?

- Well, he didnae ken what to say. I mean, he couldn't believe it, ken what I mean?

But did you not also tell us earlier that you got the impression that he had tried it on with the girl?

- Yes.

That he had tried to have sex with her. Did he say anything else?

- Basically, know what I mean, (inaudible) he didnae ken what to say."

The Advocate Depute then closed his examination-in-chief. Thereafter there was the following exchange between the trial judge and the witness:

"BY THE COURT: I want to be quite clear about this, Rennie. Earlier you said to the Depute, the first time you were asked about 26 May and you asked him about it and he said he was arrested for an allegation of rape and he said to you he did try sleeping with her. That is what you said?

- Well...

Is that right?

- What he told me is that she came down to his house and she got into his bed.

Well, that may be but earlier you did say he did try sleeping with her. Did he say that to you?

- Well, that is just what I took it, was that she got into his bed beside him."

When in cross-examination it was suggested to the witness that he could not really tell the court the words used by the appellant, he responded: "No, I cannae remember the exact words he used but he basically told me what he was lifted for." In re-examination the following exchange occurred:

"Now, when I was asking you questions before you told me that Mr McNairn did say that he had tried sleeping with her?

- Yes.

Now, those were the words you used, he had tried sleeping with her. Is that what he said?

- I cannae remember exactly what he said but from what he said, that is what I had taken it he meant.

Did he use words that gave you the impression that he had tried to sleep with her?

- I told you, I cannae remember exactly what he said but that is the impression he gave me.

You also told me earlier that you got the impression he had tried it on. Is that the impression you had from the words he used?

- Aye."

[6] At the close of the Crown case a submission was made on behalf of the appellant under section 97 of the Criminal Procedure (Scotland) Act 1995 that he had no case to answer in respect of the charge. The submission was to the effect that there was insufficient evidence in law upon which the jury could conclude that the appellant had had the necessary mens rea. It appears that, in responding to that submission, the Advocate Depute relied only on (1) evidence of distress on the part of the complainer spoken to by witnesses who had seen her after she had left the appellant's flat and (2) Rennie's evidence as to the conversation he had had with the appellant. The trial judge took the view that the evidence of distress could not corroborate the complainer's account that she had been asleep (or apparently asleep) at the time of the intercourse but that Rennie's evidence was capable of being corroborative. The trial continued. The appellant thereafter gave evidence that intercourse had taken place but that it had been consensual and brief. He did not accept that he had said to Rennie the words attributed to him.

[7] It appears that in addressing the jury the Advocate Depute may have additionally relied, for the purposes of proof of the requisite mens rea, on certain of the responses which the appellant made to the questions put to him at the police interview. However, in his charge to the jury the trial judge, while referring at an earlier stage to the evidence of the police interview, did not suggest that the appellant's responses there could provide a source of evidence for the purposes of proof of the appellant's state of mind at the requisite time. His directions to the jury on the matter of mens rea were as follows:

"Now, the third element in the case is a guilty state of mind. Well, ladies and gentlemen, that you have to view in this fashion. The starting point is once again the complainer. She says that she was asleep when he raped her, although she woke up at some point. Now, you have to accept her evidence that she was asleep. If you don't, then the Crown case fails. If she is asleep, then of course someone who is asleep cannot give or withhold consent, because they are unconscious. And the proof of her being asleep is essential to the Crown case.

Well, let us assume that is established, for the sake of the argument. Where do you get corroboration? Well, in this case, ladies and gentlemen, there is one other source of corroboration. Let me repeat, you cannot use her distress to corroborate her, but you can use, depending upon the view you come to about it, the evidence of Rennie, the friend. Now, what he said and what he retracted - because he did retract it at one point in his evidence - might amount to the fact that the accused tried it on, in other words that he did something very much without thinking, recklessly. What he said was in chief: 'When I saw him after his arrest he said, "I did trying sleeping with her"', and he thought by that he meant he tried it on. In re-examination he affirmed that, although it is fair to say that he did try to retract it. Now, of course, that makes him not the most satisfactory witness, and I have to say to you - and I direct you - that if you don't accept his evidence and the meaning attached to it, then the third leg simply isn't corroborated, and whatever you have in the other pegs (sic) of the case, if the third peg (sic) isn't corroborated then the whole charge simply has to go. If you are left in any reasonable doubt about any of these, then of course you have to acquit."

[8] This appeal is presented essentially on two bases, first, that the trial judge erred in law in repelling the submission of no case to answer and, second, on the related ground that the trial judge misdirected the jury in relation to the evidence upon which they could find corroboration of a guilty state of mind on the part of the appellant.

[9] Mr Burns on his behalf submitted that Rennie's evidence could not provide the necessary corroboration. This was a case in which there had been no suggestion of the use of force or of any threat of its use. The complainer's account had been that throughout the sexual intercourse she had pretended to be asleep; she had at no stage protested or resisted. Neither the words attributed by Rennie to the appellant nor Rennie's interpretation of those words was capable of providing the necessary corroboration. This was the more evident by the trial judge's resort in his charge to a re-interpretation of that interpretation. At their highest for the Crown, the words attributed to the appellant were not capable of pointing to a reckless state of mind on his part. The trial judge, while correct in his view that evidence of distress could not assist on this aspect, had erred, both in his ruling on the submission and in his directions to the jury, on the matter of Rennie's evidence. Mr Burns referred to Spendiff v H M Advocate 2005 S.C.C.R. 522.

[10] The Advocate Depute in response opened with a reference to the use of circumstantial evidence as encapsulated in Al Megrahi v H M Advocate 2002 SCCR 509 at paras.[31] - [36]. He referred us to the transcript of the appellant's police interview. While accepting that the appellant's broad position at that interview had been that the complainer had been a consenting party, he maintained that, taken at their highest for the Crown, there were certain of the appellant's responses which assisted on the matter of sufficiency. While, under reference to Spendiff v H M Advocate, he refuted the proposition that evidence of distress could not in any circumstances be relevant to the issue of mens rea, he indicated that he did not propose to rely in this case on any such evidence. He submitted, however, that Rennie's evidence would entitle the jury to conclude that the appellant had made an admission which went further than one of an attempt to sleep with the complainer. The words attributed to the appellant could amount to an admission that he "had tried it on" or "taken a chance" or "pushed his luck" or "done something which he was not entitled to do". The appellant's words to Rennie had to be seen in the context of what the former had said to the police. The Advocate Depute then identified a number of points which, he maintained, could be taken from the appellant's responses at that interview. Those points included, among others, an absence of any prior sexual relationship between the parties, the time and circumstances in which the complainer had got into a bed in the appellant's room and the absence of words or of affectionate conduct between the parties before, during or after the sexual intercourse. When these responses were taken along with the appellant's words to Rennie, there was corroborated evidence that the appellant had had sexual intercourse with the complainer without at least an honest belief that she was consenting to it.

[11] In the circumstances of this case we do not find it necessary to decide whether the appellant's responses at police interview, whether taken alone or in conjunction with Rennie's evidence, would amount to a sufficiency of evidence of the requisite mens rea. We note that the Advocate Depute who conducted the case at trial did not, at the stage of the submission of no case to answer, rely to any extent on these responses for that purpose. The extent to which he relied on them in his address to the jury is uncertain. The fact that the trial judge makes no reference to them at the relevant stage of his charge (nor in his report to us) suggests that, if and insofar as they were relied on for that purpose, the trial judge regarded them as irrelevant to it. The trial judge's charge to the jury is to the effect that corroboration of the complainer's evidence bearing on the appellant's state of mind could be found, and could be found only, in Rennie's evidence. The essential question in this appeal is whether the trial judge misdirected the jury in that regard.

[12] The primary evidence bearing on the issue of the accused's state of mind came from the complainer's account of the circumstances in which intercourse took place. She testified that when the appellant penetrated her, and throughout the subsequent act of intercourse, she was pretending to be asleep. It is of no importance for present purposes whether, when penetrated, she was actually asleep. If, when the appellant had sexual intercourse with the complainer, she was apparently asleep, then that was in the circumstances of this case evidence from which an inference could be drawn that the appellant was at least reckless as to whether she consented to that intercourse. It is not suggested that Rennie's evidence goes to support the complainer's account of the external circumstances in which sexual intercourse took place (viz. her apparent unconsciousness) from which an inference as to the appellant's state of mind could be drawn. Rather, the suggestion is that the appellant in his remarks to Rennie disclosed from his own mouth his mental attitude at the relevant time.

[13] On the assumption - which seems reasonable in the context of an enquiry as to what had happened to lead to the appellant being arrested on an allegation of rape - that "sleeping with" imports having sexual intercourse with, the reported remark that the appellant "did try sleeping with her" would, on its face, appear to suggest an attempt, whether by verbal persuasion or by physical encouragement, to have sexual intercourse with the complainer. Unless "try" is, somewhat fancifully, to be understood in the sense of "experiment with", the words on their face point away from sexual intercourse having actually been achieved and give no support either to the complainer's or to the appellant's account of what happened. The words, on their face, accordingly tell the hearer nothing about the appellant's state of mind in relation to any actual intercourse. While evidence to be corroborative need not in itself be criminative, it requires to "fit with" the direct evidence (Fox v H.M. Advocate 1998 S.C.C.R. 115, per Lord Justice-General Rodger at p. 126F). Rennie's interpretation of the remarks, by reference to the slang expression "try on" seems to point to no more than an (unsuccessful) attempt, albeit perhaps suggestive of the use of devious means in that attempt. In our view neither the words reported by Rennie nor Rennie's interpretation of them could reasonably bear the interpretation that the appellant was indicating "that he did something very much without thinking, recklessly". The passage in which the trial judge directed the jury that such an interpretation was open to them amounted, in our view, to a misdirection.

[15] There remains the question whether that misdirection was material and led to a miscarriage of justice. In our view, it did. The jury were specifically directed that, in relation to proof of the appellant's state of mind, Rennie's evidence alone was available to them as possible corroboration of the complainer's evidence. It must be assumed that they followed that direction and proceeded on the basis that that evidence on its own both could and did provide that corroboration. On the view which we have taken as to the possible import of Rennie's evidence, the jury's verdict is inevitably vitiated. There are no sufficient other circumstances to warrant a conclusion that this conviction can stand. The appeal is allowed and the conviction quashed.