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Cite as: [2005] ScotHC HCJAC_115, 2005 SCCR 764, [2005] HCJAC 115

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RWP v. Her Majesty's Advocate [2005] ScotHC HCJAC_115 (21 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Carloway

Lord Macphail

[2005HCJAC115]

Appeal No: XC757/03

OPINION OF THE COURT

delivered by LORD HAMILTON

APPEAL AGAINST CONVICTION and SENTENCE

R.W.P.

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Duguid, Q.C., Renucci; Drummond Miller

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

21 October 2005

[1] The appellant, who was born in 1959, was in May 2003 tried on indictment in the High Court at Forfar on various charges, the most serious of which involved conduct towards his step-daughter, A, who had been born in 1986. Immediately prior to the close of the Crown case the Advocate depute sought and obtained leave to amend certain of the charges. Charge (1) (as amended) was that on various occasions between 16 July 1994 and 15 July 1999 (the day prior to A's 13th birthday) the appellant had assaulted A in certain ways importing indecency. Charge (2) (as amended) was that on various occasions between 16 July 1999 and 2 December 2001 the appellant had assaulted A in certain ways importing indecency "and on an occasion between 1 and 3 December 2001 did rape her". Charge (5) (as amended) was that on various occasions between 16 and 31 July 2002 the appellant had assaulted A in certain ways importing indecency "and did on or about 30 or 31 July 2002 rape her", that offence being alleged to have been committed while the appellant was on bail.

[2] The jury convicted the appellant of charges (1) and (2), under deletion in each case of a particular location, and of charge (5) as libelled. They also convicted him of a charge (charge (7)) of contravention of section 52(1)(a) of the Civic Government (Scotland) Act 1982, aggravated by the appellant having been on a bail for part of the period libelled. They acquitted him of charge (4). At the close of the Crown case the appellant had pled guilty to charges (3) and (6), each being charges of breach of bail conditions.

[3] The trial judge passed on the appellant, in respect of charges (1), (2) and (5), a cumulo extended sentence of 15 years imprisonment, comprising a custodial term of 12 years and an extension period of 3 years. She imposed concurrent terms of 2 years imprisonment on charge (7) and of 3 months imprisonment on each of charges (3) and (6). The appellant has appealed in respect of both conviction and sentence.

[4] At the trial, which took place before the decision of this court in Webster v. Dominick 2003 SCCR 525, the trial judge took the view, assented to by the Advocate depute, that the charges, in so far as concerned with indecency other than rape, should be dealt with as charges of shameless indecency. She directed the jury on that basis. For some unexplained reason, no motion was in the event made by the Crown to amend the charges by deletion of the references to indecent assault and the substitution of references to shameless indecency. However, the import of the jury's verdict, in the light of the judge's charge, was that they found proved conduct by the appellant towards A which, if directed against a female under the legal age of puberty, would constitute the common law crime of lewd and libidinous practices and behaviour. In these circumstances it was a matter of agreement before us that the convictions on charges (1), (2) and (5) should, in the light of Sneddon v. H.M. Advocate 2005 SCCR 367, be restricted as follows - in charge (1) by substitution of 15 July 1998 for 15 July 1999 and of lewd and libidinous practices and behaviour for indecent assault; and in charges (2) and (5), subject always to the appellant's contention that these charges be quashed simpliciter, by deletion of the elements related to indecent assault, to the effect that these latter charges were in each case restricted to conviction of rape on the particular single occasions referred to. (The Crown did not in this case contend that the common law crime of lewd and libidinous practices and behaviour could extend beyond A's 12th birthday - cf. Batty v. H.M. Advocate 1995 SCCR 525). The appellant's primary contention, however, was that on certain grounds each of the convictions for rape fell to be quashed.

[5] To set that contention in context it is necessary to explain the circumstances against which the various issues arise. The appellant married A's mother when A was a young child, her natural father having died when she was about 4 years of age. A's mother had separated from A's father when she was a baby. The appellant was, accordingly, the only father figure that there had ever been in A's life. In July 1992 twin sons were born to the appellant and his wife. The family, comprising the appellant, his wife, A and A's half-brothers, lived for some years in South Uist but in about July 2000, at about the time of A's 14th birthday, moved to Perth.

[6] According to A's evidence at the trial the appellant started touching her sexually when she was about 8 or 9 years old, initially by kissing, then proceeding to touching her over her clothes, then to touching her under her clothes, and then to having her touch his penis so as to enable him to ejaculate. This conduct ultimately led, on the jury's verdicts, to sexual intercourse between them. A's testimony was that sexual intercourse had occurred on many occasions; the appellant in evidence denied that he had ever had sexual intercourse with A, although he had, in the course of a police interview on 4 December 2001, admitted that such intercourse had taken place in the family home at Perth on two occasions shortly prior to the date of that interview. At the conclusion of the interview the appellant was charged with contravention of section 2 of the Criminal Law (Consolidation) (Scotland) Act 1995 (intercourse with step-child). He was subsequently granted bail on various conditions, including a condition that he did not approach or contact A. In breach of that condition, he was present at the family home in Perth when in July 2002 the rape specified in charge (7) was alleged to have occurred. While the appellant did not admit that sexual intercourse had taken place on that occasion, there was ample corroboration (in the form of forensic evidence) of A's testimony that it had.

[7] There was no suggestion that sexual intercourse had on any occasion been achieved by the use of physical force or by the threat of its use. The Crown case was that A had, on each of the two occasions which remained for the jury's determination, in fact been unwilling to have sexual intercourse with the appellant and that the appellant had known that there was no consent on her part or was reckless as to whether there was or was not such consent. In support of its case on each of the charges of rape the Crown placed reliance on evidence of distress exhibited by A at certain times and spoken to by other persons. The first ground of appeal concerns whether, in the circumstances, and with particular reference to the lapses of time between the alleged acts of intercourse and the observed distress, the trial judge erred in repelling a submission, made on behalf of the appellant after all the evidence (including evidence from the appellant) had been led, that there was no corroboration of A's testimony that on each occasion the sexual intercourse had taken place without her consent. The second ground of appeal (which is related to the first) is that the trial judge subsequently erred in directing the jury that the evidence of distress could be used as such corroboration.

[8] The chronology relative to the first charge of rape was that sexual intercourse had taken place in A's bedroom at the family home late on a Sunday evening (1 December 2001). The following morning A went from home to school as usual. In the afternoon she was collected from school by the appellant in his car. En route home they gave, to a school friend of A, a lift to her home. At some time after the appellant and A arrived home they had an argument, the subject matter of which was not clear from the evidence; it may have followed her indicating that she might be interested in having a boyfriend a few years older than herself. In the early hours of the Tuesday morning A left home by jumping from the window of her bedroom. She made her way to a local cemetery from where, using her mobile, she telephoned the police. A recording of that call was a Crown production at the trial. It disclosed that at that time A was in a state of extreme distress. She was sobbing, distraught and panicky. She told the police that she was being molested by her step-father and that it had been going on for 5 years. Police officers immediately went to collect her. They found her still in a very distressed state. There was an interval of about 27 hours between the act of intercourse and the distress relied on.

[9] The chronology relative to the second charge of rape was that sexual intercourse had taken place, again in the family home, in the course of the night of 30/31 July 2002. By this time A was no longer at school. During the morning and the earlier part of the afternoon of 31 July she had, so far as the evidence disclosed, remained in the family home, where the appellant had also been present. A plumbing problem had apparently arisen there to which the appellant, a neighbour and family friend (Mr. Archibald) and a plumber were attending. In the latter part of the afternoon A burst into the house of Mr. Archibald and his wife, to which by that time Mr. Archibald had returned. She was observed to be panting, frightened and crying. She said to Mrs. Archibald - "Kirsty, help me! He's doing it again". It became clear that she was trying to explain that the appellant had had sexual intercourse with her the previous night and that she apprehended it would be repeated that night. It was principally from Mrs. Archibald, it appears, that she sought comfort. There was some inconsistency in the evidence as to precisely when in the course of the afternoon A had arrived at the Archibalds' house. But the interval between the intercourse and the observed distress can be taken to have been, on the evidence, in the order of 15-18 hours.

[10] Mr. Duguid, on behalf of the appellant, submitted to us, as he had submitted to the trial judge, that the evidence of distress was not, in either case, capable of providing corroboration of the charge of rape. The intervals of time were in each case too long. The complainer had not suggested in evidence that she had been exhibiting signs of distress when intercourse took place. There had been no evidence of observed distress during the intervening periods; this was particularly significant in relation to the December incident, where A had been at school and out of the presence of the appellant for a significant period of time. The Crown had failed to establish facts and circumstances which could explain such delayed exhibition of relevant distress. In relation to the July incident the Crown had failed to establish with whom during the intervening period A might have been in contact - other than the appellant, Mr. Archibald and the plumber. In relation to each incident there were alternative possible explanations of A's distress, namely, altercations of one sort or another with the appellant, her step-father. The only explanation for the delay, advanced by A in evidence, was that she would not confide in her mother nor discuss "family matters" at school. Mr. Duguid referred to McCrann v. H.M. Advocate 2003 S.C.C.R. 722 and to Moore v. H.M. Advocate 1990 J.C. 371, 1990 S.C.C.R. 586. The observed distress was too remote.

[11] In response on this aspect of the appeal the Advocate depute submitted, under reference to McCrann v. H.M. Advocate, that there was no fixed interval beyond which observed distress could not provide corroboration of the absence of a complainer's consent to intercourse. The primary question ("Was the distress caused by the rape?") was one of fact for the jury, although there could be cases where no jury acting reasonably could find the causal relationship. Here the background home circumstances, including the long residence of the family in a remote location in South Uist, the fact that the alleged offender lived in the same family and the absence of any natural confidante, were relevant. It was not for the Crown to exclude earlier opportunities for disclosure, although any apparently significant gaps might be a matter of comment.

[12] Although, as we discuss later, distress appears at the trial to have been treated on all hands as bearing, in a composite way, on the mental attitudes of both A and the appellant to the acts of intercourse, the first issue for determination in this appeal is whether the evidence of distress was capable, in relation to either or both incidents, of providing corroboration of A's evidence that she did not consent to the relative acts of sexual intercourse with the appellant. The primary evidence of such absence of consent came from A, who spoke to these acts having taken place against the background of sexual abuse of her by her step-father, combined with a threat that, if she did not comply with his wishes, the family would be broken up, including her separation from her half-brothers. Although, in ordinary circumstances, A's mother might have been expected to be her natural confidante, there was evidence from which an inference could properly be drawn that in this family A did not have that usual advantage; A's mother, who was a co-accused on the same indictment as the appellant, was ultimately convicted of attempting to pervert the course of justice in various ways, including an attempt at the police station to persuade A to withdraw the allegations which she had just made against the appellant and the subsequent disposal of real evidence likely to assist in proving his criminal conduct towards A. There was also evidence that, since the family's arrival in Perth, A had not made friends to whom she could readily report sexual abuse perpetrated against her by the appellant. There was ample evidence before the jury that such abuse had taken place over an extended period.

[13] While there may hitherto have been no close analysis in the Scottish authorities of the basis on which evidence of observed distress can afford corroboration of the state of mind of a complainer of sexual attack (and this is not a suitable case in which to attempt such an analysis), there is ample authority that, in appropriate circumstances, it can (Yates v. H.M. Advocate 1977 S.L.T. (N) 42, 1990 J.C. at pages 378-80; Smith v. Lees 1997 J.C. 73, 1997 S.C.C.R. 139). Whether or not distress provides such corroboration depends in every case on the circumstances (Moore v. H.M. Advocate; Cannon v. H.M. Advocate 1992 S.C.C.R. 505). The law does not prescribe any fixed interval after which distress on the part of a complainer cannot constitute corroboration, although there may be cases where the circumstances are such that no reasonable jury, properly directed, could properly find corroboration in such distress (McCrann v. H.M. Advocate at paras. [12] - [13]). In Cannon an interval of some 14 hours did not in the circumstances prevent distress being capable of affording corroboration. In Paterson v. H.M. Advocate 1999 S.C.C.R. 750 a 17 year old girl, who lived at a children's home, complained of having been raped in a motor car. Later the same day she spoke to or was in the presence of a number of persons successively, including a member of the school staff and police officers. She then went to bed. On the evidence distress was first exhibited by her the following morning (to a 13 year old boy). Even that was questionably related to an incident of the character subsequently complained of. However, the court was not persuaded that the evidence given by that boy was too remote to afford corroboration (page 759A).

[14] In the present case the complainer was, at the time of the first incident, not yet 151/2 years of age and, at the time of the second, newly 16. The alleged rapist was her step-father, with whom she lived in family. The only other adult in the household was A's mother, the appellant's wife, who on the evidence the jury were entitled to conclude was not a person to whom A could readily go for succour and support. The incidents took place against the background of sustained sexual abuse of A by the appellant. Each occurred in the family home in the course of the night. Although in each case, and in particular the first, the interval between the incident and the observed distress was lengthy, we are not in the end persuaded that, in all the circumstances, it was incapable of affording independent testimony that the intercourse took place without the consent of A. Whether the necessary inference can be drawn is essentially a matter of facts and circumstances. In our view, it would not have been, nor was it, unreasonable for the jury to draw in each case that inference. In these circumstances the appellant's primary contention (focused in grounds 1 and 2 of his original grounds of appeal) must be rejected.

[15] The trial took place after the decision of this court in Lord Advocate's Reference (No. 1 of 2001) 2002 SCCR 435 but before the decisions in McKearney v. H.M. Advocate 2004 SCCR 251 and Cinci v. H.M. Advocate 2004 S.C.C.R. 267. As noted above, the trial appears to have proceeded on the basis that the mental elements (that of A and that of the appellant) should be treated in a composite way and that observed distress on the part of A, if available at all, was available in respect of both elements. On 9 July 2004 this court allowed additional grounds of appeal to be received, including a ground that

"the requisite knowledge of the appellant that the complainer was not consenting, as spoken to, by the complainer herself was not corroborated from any other source of evidence".

Complaint was also made of the trial judge's directions in so far as they inferred that distress might be used to corroborate the state of the appellant's knowledge.

[16] In advancing this ground of appeal Mr. Duguid acknowledged that no issue had been taken at any stage of the trial about the sufficiency of the evidence to establish the requisite state of mind on the part of the appellant. However, the position remained, it was argued, that there was no corroborated evidence that A had expressed any unwillingness to participate in the sexual acts. The appellant's account was that, in so far as there had been any sexual activity between them, it had been at A's instigation. A's account had been that she had told him that she was unwilling that any sexual activity continue between them. At one point she had threatened to tell her mother and at another that, if it did not stop, she would go to the police. But this was not, it was emphasised, a case of forcible rape. Distress could not, in such a case, provide corroboration of the appellant's knowledge or recklessness (McKearney v H.M. Advocate, per Lord Justice-Clerk Gill at para. [16]). Reference was also made to Cinci v. H.M. Advocate and to Spendiff v. H.M. Advocate 2005 S.C.C.R. 522. Although, after the incident in December, the appellant had been cautioned and charged, the charge laid against him at that time was not of rape but of contravention of section 2 of the Criminal Law (Consolidation) (Scotland) Act 1995. The trial judge's directions that distress subsequently exhibited by A could be used by the jury as corroboration of the appellant's state of mind at the time of the incidents was palpably wrong.

[17] The Advocate depute, in response on this aspect of the appeal, submitted that there had been before the jury sufficient evidence in law to allow them, in respect of each incident, to return a verdict of guilty of rape. The appellant had, at his police interview, in effect admitted that, in relation to earlier sexual activity, A had told him that she wanted it to stop; he had accepted when cross-examined at the trial that she had told him she wished such activity to stop. Although he had not in evidence admitted either of the acts of sexual intercourse, he had admitted that there had been sexual conduct between them and had accepted that what he had done in that respect was not right. It was also relevant to take into account the relationship between the parties - in particular that this was conduct of an adult step-father in the family home towards his young step-daughter. In relation to the second incident, he was at that time on bail, knowing that A had already gone to the police complaining of his sexual conduct towards her. All of these elements pointed, independently of A's testimony, to the appellant being well aware that he was imposing himself upon his unwilling step-daughter. Although the trial judge had directed the jury that, to find the necessary corroboration, they required to find related distress on the part of A, she had not confined the jury's consideration to such evidence. In neither McKearney v. H.M. Advocate nor Cinci v. H.M. Advocate had it been decided that distress was irrelevant to mens rea. It could constitute an element in the totality of circumstances bearing on that matter (Spendiff v. H.M. Advocate).

[18] It is conceded, in respect of each of the incidents, that, although no physical force was used or threatened against A and that she had not physically resisted the appellant's advances, there was primary evidence from A that she had told the appellant that she did not welcome his advances. The issue on sufficiency is whether there was independent evidence capable of confirming or supporting the proposition that the appellant knew that A was unwilling to have sexual intercourse with him or the proposition that he was reckless as to whether or not he had her consent to such intercourse. In our view there was. The context in which the appellant's conduct requires to be viewed is that of an adult male living in family with an adolescent girl who had been treated from early childhood as a child of his family, and having, as her step-father, de facto control over her. Although the appellant's responses at the police interview may be open to interpretation, there was evidence from him in the course of the trial that he recognised not only that his sexual activities, in so far as he admitted them, were wrong but also that, by at least the time of the incidents in December 2001 and July 2002, A wished his conduct to stop (Extract transcript of proceedings, pages 73-5). That wish was even more evident in relation to the July 2002 incident, by which time the appellant knew that A had earlier run from home and complained to the police about his conduct. In these circumstances there was, in our view, independent evidence from which the jury was entitled to infer that the appellant was at least reckless as to whether or not he had A's consent to either of the acts of sexual intercourse.

[19] Distress can, at least in some circumstances, form part of the totality of the circumstantial evidence which would entitle a jury to conclude that an accused had the state of mind requisite for rape (Spendiff v. H.M. Advocate at para. [27]). It may be doubtful whether the evidence of distress in this case had a significant part to play on this aspect of the case. To that extent the trial judge may fairly be said, in the light of subsequent authorities, to have attached, at several places in her charge, undue significance to the evidence of distress for the purposes of proof of that state of mind. But she did not direct the jury that that was the only evidence which bore on that issue. In particular, at page 51, she directed the jury that evidence of distress was a factor which they ought to take into account "along with the other evidence in the case" in reaching a conclusion as to the circumstances surrounding the event, including the state of mind of the accused. In these circumstances the scope of the evidence bearing on that matter was left at large for the jury. We are not persuaded that, taken as a whole, the judge's directions on this aspect led to a miscarriage of justice.

[20] We shall allow the appeal against conviction to the extent of the agreed restrictions earlier noted to charges (1) and (2). Quoad ultra we shall refuse the appeal against conviction. The case will be continued for consideration of the appeal against sentence, including the consequences of the restrictions on the conviction.