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Cite as: [2005] HCJAC 117, [2005] ScotHC HCJAC_117

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Wright v. Her Majesty's Advocate [2005] ScotHC HCJAC_117 (25 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lady Cosgrove

Lord Emslie

[2005HCJAC117]

Appeal No: XC997/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION

JAMES WRIGHT

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Graham; Malcolm & Hutchison, Airdrie

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

25 October 2005

[1] On 25 October 2004 in the High Court at Glasgow the appellant was convicted of a charge of rape. According to the terms of the charge of which he was convicted, at a house in Stepps on 20 December 2003 he

"did assault (the complainer), residing there, and while she was asleep under the influence of alcohol and incapable of giving or withholding consent, did lie on top of her and while asleep and after she had woken did rape her".

[2] According to the report of the trial judge, the appellant lived next door to the complainer. She gave evidence that on 19 December 2003 she was "feeling awful". She thought that she had influenza and took some medication. She spent the day at home with her husband. Shortly after 8 p.m. her brother came in, and the three of them had a few drinks of vodka and beer. After her brother left she went to bed about 9.30-10:30 p.m. She went to sleep. The lights were off, the blinds were closed and the room was dark. She became aware of the appellant when he ejaculated inside her. She was still in bed at the time. The appellant was on top of her. She did not expect him to be in her house. The appellant ran downstairs and she followed him. She banged on his front door. Her husband was there. She told her husband that the appellant had raped her, and her husband phoned the police. She was adamant that the appellant had raped her. When she was asked "did you want that?", she replied "no way". She was hysterical afterwards and was shaking. She denied that she had been agreeable to the approaches of the appellant.

[3] The complainer's husband confirmed what the complainer had said about the early part of the evening. He said that she had gone to bed at about 9.30-10:30 p.m.. At about 11 p.m. he heard a noise from next door. He chapped on the door, and the appellant answered. The appellant's daughter was in the house. The appellant poured him a vodka so large that there was hardly any room in the glass for coke. The witness could not drink it and had only a sip. The appellant was smoking " a joint". The witness told the appellant that he had left his cigarettes on the table in the living room in his house. The appellant said that he would get the cigarettes for him and left. He was away between five and ten minutes. The witness realised that the appellant was " taking his time". The appellant returned with the cigarettes and appeared to be normal. There was then a banging on the appellant's front door as if someone wanted in quickly. The witness heard his wife shouting for him to get into their house quickly. He went there and found her in hysterics. She told him that the appellant had raped her. She was shaking and in shock. She was wearing a nightgown. He phoned the police fairly quickly. A police officer gave evidence as to an interview with the appellant, in the course of which he admitted having had sexual intercourse with the complainer.

[4] The appellant lodged a defence of consent under section 78 of the Criminal Procedure (Scotland ) Act 1995. He gave evidence on his own behalf. He stated that on 19 December he had been drinking during the day and in the evening. He arrived home about 8 p.m. The complainer's husband came to his door about 9.30-10.30 p.m. He asked him in for a drink. They chatted for about half an hour. At the husband's request he went to his house to get his cigarettes. He did not see any cigarettes in the living room but saw some in the kitchen. The complainer shouted from upstairs. He replied that it was not her husband but himself, and that he had come for cigarettes. The complainer then asked him to come upstairs, and he did so. She came towards him and they started kissing. She was wearing a dressing gown. They moved into the bedroom. They got on to the bed and were touching each other. He took down his pants and trousers. She was naked under her dressing gown. It was obvious that she wanted to have sexual intercourse with him. She offered no resistance, and nothing was said. He had sexual intercourse with her, but not for very long. He decided that he didn't want to carry on. He pulled up his trousers started to leave. She then said to him: " You fucking bastard - get out". He left, and went back to his own house and talked to the complainer's husband. She banged on his front door saying that he should tell her husband to get in right now. She said to her husband: "He raped me". When he was first questioned by the police he denied having sexual intercourse with the complainer, but later admitted that this was a lie. He was absolutely sure that the complainer was not asleep. Her evidence was false. She was drunk, and he did not rape her.

[5] In the first ground of appeal it is maintained that an application under section 275 of the1995 Act had been erroneously refused, and that the appellant was thereby denied the ability to demonstrate to the jury that there were antecedent events that would have caused him to have a reasonable belief that the complainer was consenting to sexual intercourse taking place. The application sought the cross examination of the complainer, and the leading of evidence, in regard to two occasions on which it was alleged that she had made an amorous advance to him, attempting to kiss him intimately on the lips, and that he had rejected these advances. On the first occasion, between 1 April and 30 June 2001, she had come to his house in a dressing gown and in a drunken state, and had complained about her relationship with her husband. The second occasion, between 1 and 31 March 2003, had been while he was visiting their house and her husband was out of the living room. According to the application it was sought to question the complainer as to her feelings towards the appellant and suggest that she had an unrequited sexual attraction towards him, in support of a case that the sexual intercourse between them was of a wholly consensual nature.

[6] The application was initially refused by Lord Brodie in advance of the trial. According to his report, he did so for three reasons. The first was the lack of sufficient specification of the occurrences. The second was that it was not clear what aspect of the complainer's character, or what condition or predisposition was to be demonstrated by the evidence. There appeared to be a suggestion that, because the appellant had spurned her advances, the complainer had invented an account of the rape. However, whether the application was concerned with a suggestion that the complainer was inclined to invent a false allegation or that she had a degree of sexual interest in the appellant, he was not satisfied that the probative value was significant, or that the admission of such evidence was likely to outweigh any risk of prejudice to the proper administration of justice. It appeared to him that the flavour of what was sought to be admitted was such as to suggest that the complainer was somewhat loose in her conduct, and so to permit attack on her character by reference to alleged events which were remote in time from the conduct libelled in the charge. The third reason was the period which had elapsed between the alleged incidents and the date specified in the indictment. In reaching his decision he had regard to the difference between the attempted kissing and sexual intercourse. There was no contention that the previous incidents would have caused the appellant to have a reasonable belief that the complainer was consenting to sexual intercourse. Had that contention been advanced he would have rejected it. The application was renewed before, and refused by, the trial judge on the day before the trial commenced. He noted that the sole purpose of the application was to demonstrate that the complainer consented to sexual intercourse. He refused the application in hoc statu, indicating that a further application might be made at the conclusion of the complainer's examination in chief. No such further application was made.

[7] On behalf of the appellant Mr Graham submitted that the object of the application was to demonstrate that what the appellant had described in his evidence was not a one-off situation, but that there had been previous behaviour of a sexual character tending to support his evidence that he had succumbed to the complainer's advances on 20 December 2003.

[8] The issue for our determination is not whether we ourselves might have decided the matter differently at first instance, but whether it has been shown that the discretion available to Lord Brodie and the trial judge has been wrongly exercised. The matter was presented to this court as one of fact and degree, to be judged against the background of the relevant legislation. On that footing, having regard to the gap in time between 20 December 2003 and each of the alleged prior incidents, taken together with the difference in their character, we are not persuaded that either Lord Brodie or the trial judge erred in the exercise of his discretion in deciding to refuse the application.

[9] In the second ground of appeal it is maintained that the trial judge erred in law in refusing a submission in terms of section 97 of the 1995 Act that there was insufficient evidence for the conviction of the appellant. The Crown had not established by full proof that the appellant had no reasonable belief that the complainer was consenting to sexual intercourse. In any event there was no corroborated evidence which supported the proposition that he could not have had a reasonable cause to believe that she was consenting.

[10] Although the contention for the Crown was that the appellant had had intercourse with the complainer by penetrating her while she was asleep, the jury convicted the appellant of the whole charge including the words "and after she had woken". However, this appears to do no more than reflect the fact that, on the complainer's evidence, his penis remained in her vagina for a fairly short time after she wakened and before he withdrew. If it was the case that the appellant had intercourse with the complainer while she was asleep, he must have known that she was not consenting to sexual intercourse. By such consent is meant active consent, as opposed to mere submission or permission (Lord Advocate's Reference (No.1 of 2001) 2002 S.C.C.R. 435, Lord Justice General at paragraph 39). We also note that in this case there was no issue as to whether the appellant mistakenly believed that the complainer was consenting. The accounts given by the complainer on the one hand and by the appellant on the other were to the opposite effect in regard to whether she consented. According to the appellant she not only consented but actively encouraged sexual intercourse. Thus, in the context of the present case, the critical question is whether there was sufficient evidence to corroborate the complainer's account that she was asleep when the appellant had sexual intercourse with her. Mr Graham accepted that there was evidence from the complainer's husband that she had been showing signs of being unwell during the day. However, when he went to the appellant's house the lights were still on in the living room of his own house. He did not see that his wife was in bed. The appellant's evidence was of no assistance to the Crown.

[11] We consider that there was sufficient circumstantial evidence to corroborate the complainer's account that she had been asleep. That account included her evidence that she had been " feeling awful", thinking that she had influenza, that she had been taking medication and alcohol, and that after her brother had left she had retired to bed, the blinds being closed and the room dark. Her husband in his evidence confirmed what she had said about the early part of the evening. The fact that by the time of the incident to which the charge related it was after 11 p.m. and that she had by then been in her nightgown for some time was supportive of her account of being asleep. Her husband had gone out without her. According to his evidence, when she shouted for him she was wearing a nightgown and was in considerable distress. We consider that the distress was, in the particular circumstances, an important element of the total picture (cf. Spendiff v. H.M. Advocate 2005 S.C.C.R. 552 at paragraph 27). While the evidence to corroborate the complainer's account cannot be described as ample, it was in our opinion not only consistent with that account but also sufficient to provide confirmation or support for it, in accordance with the principle for which Fox v H.M. Advocate 1998 J.C. 94 is authority.

[12] The third and remaining ground of appeal he is concerned with the directions of the trial judge to the jury in the course of his charge. At pages 9-10 of the transcript he is recorded as stating:

"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 for the commission of the crime. Similarly the crime is not committed if the man actually and honestly believed that the woman was consenting. It follows from that that what turns the usually natural, necessary and often pleasurable activity 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), in this case because she was intoxicated or asleep or otherwise unconscious and not in a position to consent or resist"

[13] In this ground of appeal it is maintained that the charge was deficient in respect that the trial judge failed to direct the jury that the Crown required to discharge the burden of proving the mens rea of the appellant by corroborated evidence. In support of this ground of appeal Mr Graham relied on McKearney v H.M Advocate 2004 JC 87.

[14] It is clear that, having referred to the matter of honest belief on the part of an accused - without indicating what was the position in regard to the onus of proof - the trial judge went on to direct the jury that "the only issue in the trial" was whether the sexual intercourse took place "against the will" of the complainer, giving no directions as to the Crown also requiring to prove mens rea on the part of the appellant.

[15] The absence of such directions might well be fatal in other circumstances. However, in this case the trial judge attached the words "because she was intoxicated or asleep or otherwise unconscious and not in a position to consent or resist". If the complainer was in fact in such a condition, that was critical both to proof of lack of consent on her part and at the same time to proof of mens rea on the part of the appellant. The decision in McKearney v. H.M. Advocate was not concerned with cases in which the Crown seeks to prove, by corroborated evidence, a fact which demonstrates that the accused must have known that the complainer was not consenting. The use of force by the accused is one example. The fact that the complainer was asleep or unconscious is another. Thus the words which the trial judge added identified for the jury the key question of fact which was critical to the Crown case. At the same time we do not doubt that it would have been more satisfactory if he had directed them that the condition of the complainer required to be established by corroborated evidence and was critical in showing, inter alia, that the appellant must have known that she was not consenting. We would add that it is clear from the jury's verdict that, contrary to the evidence given by the appellant, they accepted that the complainer was indeed asleep when the appellant began to have intercourse with her. On that basis she could not have been consenting and, by inevitable inference, the appellant must have known that.

[16] For these reasons we are not persuaded that the apparent deficiencies in the trial judge's charge amounted to a material misdirection, or that there was a miscarriage of justice in this case.