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Cite as: [2005] HCJAC 57, [2005] ScotHC HCJAC_57

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Patterson v. Her Majesty's Advocate [2005] ScotHC HCJAC_57 (19 April 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Johnston

Lord Emslie

[2005HCJAC57]

Appeal No: XC984/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST CONVICTION

CRAIG PATTERSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: M. Scott Q.C., McCall; Stevenson & Marshall, Dunfermline

Respondent: Beckett, AD; Crown Agent

19 April 2005

[1] On 29 August 2003 the appellant was convicted of a charge of rape. According to the terms of the charge he assaulted the complainer while she was asleep and incapable of giving or withholding consent, handled her breasts, removed her pants and, while unconscious and also after she and regained consciousness, raped her.

[2] The circumstances of the case are briefly as follows. On a Saturday night the complainer, who is in her early twenties, went out with her friend, N. At about midnight the complainer met the appellant whom she had known for some years (but, according to the complainer, not well). Thereafter the complainer and N went to N's house along with a number of friends, including the appellant. After a couple of hours everyone left apart from the complainer, N and the appellant. They then went to a party. When they returned to N's house, N agreed to the appellant sleeping on the couch in her house. The complainer went straight to bed in a bedroom. She fell asleep about 6 a.m.

[3] She gave evidence that she woke up feeling pressure on her chest and someone touching her. At first she thought that she was dreaming. She thought that it was N, but then realised that it was the appellant. She could feel his naked private parts. She turned on to her right side. She then felt pain, and realised that he was putting his penis into her vagina, more than once. She realised what was going on, sat up and pushed him away. Her pants were at her knees. She ran through to N's room. She was frightened. She had not wanted him to do that. She had difficulty in wakening N, but eventually did so. She told her what had happened. She was crying and upset. N threw the appellant out of the house. The appellant said: "If she's saying what I think she is, I'm getting my sister on her". The complainer got dressed. N phoned the police who arrived at 8:30 a.m. The complainer also gave evidence that since the incident she had been seeing a psychiatrist. She had given up college because of her health. She suffered depression, anxiety and agoraphobia.

[4] N gave evidence that there had been no intimacy between the complainer and the appellant. She allowed the appellant to sleep on the couch and gave him a cover. The complainer was already in bed. She was later awakened by the complainer who was very upset and in floods of tears. N asked her what was wrong. She replied: "He's done something to me - Craig came into the bed beside me". When N asked: "Has he raped you?", she replied: "Yes". N told him to get out of the house. He was wearing only boxer shorts.

[5] In his police interview and his evidence the appellant did not dispute that he had had intercourse with the complainer. In his interview he said that N had told him he could sleep in bed with the complainer. When he did so the complainer turned round and cuddled into him, put her hand in between his legs and aroused him. He turned round and kissed and touched her intimately. This led to their having sexual intercourse for two or three minutes. Then she got out of bed. He did not know what was wrong with her. He went through to the livingroom, had a drink, and lay down on the couch. N put him out of the house. The complainer was "okay" when he left. His evidence at the trial was to the same general effect. He gave further details of the way in which the complainer encouraged him to have sexual intimacy with her, and behaved as if she enjoyed the intercourse. She did not push him off.

[6] The grounds of appeal advance a number of criticisms of the trial judge's charge. The trial judge directed the jury at page 9-10 of the transcript as follows:

"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-I say again not committed-if he man actually and reasonably believes that the woman is consenting. It follows that what turns the usually natural, necessary and often pleasurable activity into a crime is 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.

Such lack of consent can be evidenced by action on the part of the complainer, as where she struggles or cries out or does something of that nature.

The crime is also committed where a man has sexual intercourse with a woman while she is asleep or unconscious and therefore incapable of giving consent, being bereft as it were of the power of choice. 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, or that the accused actually and reasonably believed that the woman was consenting"

[7] Ms Scott for the appellant pointed out that in the present case the allegation against the appellant was one of non-forcible rape. While the complainer may have been asleep when he entered the bedroom, she was no longer asleep when intercourse took place. By then she had realised that it was the appellant who was beside her. It was also clear that nothing was said by either party. In particular nothing was said by the complainer to the appellant to indicate that she was not consenting to intercourse.

[8] Ms Scott criticised the directions which we have quoted in a number of respects. However, it is sufficient for us to concentrate on her argument that the trial judge was in error in directing the jury that "the crime is not committed...if the man actually and reasonably believes that the woman was consenting" (emphasis added). We are in no doubt that the Advocate depute was correct in accepting that this passage contained a material misdirection. It is well established that it is of the essence of the crime of rape that the man lacks honest belief that woman is consenting. Such a belief does not require to have been reasonably held. As Lord Justice-General Emslie observed in Meek v H.M. Advocate 1982 S.C.C.R.613 at page 618, the absence of reasonable grounds for such a belief will, however, have a considerable bearing on whether any jury will accept that such an honest belief was actually held. Likewise in Jamieson v H.M. Advocate 1994 S.C.C.R.181 it was held that it was a misdirection in law for a trial judge to direct that the man must have reasonable grounds for thinking that the woman consented. On the other hand the jury should be directed to consider whether there were reasonable grounds for the belief in reaching their decision as to whether in fact it was genuinely or honestly held by the man at the time (Lord Justice- General Hope at page 186E-F) (See also the Lord Advocate's Reference (No.1 of 2001) 2002 SCCR 435).

[9] The Advocate depute sought to persuade the court that, despite the misdirection, there had not been a miscarriage of justice. He pointed out that, according to the terms of the charge of which the appellant had been convicted, the rape of the complainer was not limited to the time when she was awake. In the light of the evidence of the complainer, N and the appellant, the complainer was asleep when he got into the bed. While the complainer gave evidence that the appellant had intercourse with her for only seconds, he stated that he had done so for two or three minutes. If the jury accepted that the latter was the case, they would be entitled to infer that during part of that time she was asleep. If so, there could be no question of his entertaining an honest belief that she was consenting, and accordingly the appellant's conviction was inevitable. In our opinion, it is by no means clear that this theory reflects the true position. It is not consistent with the account given by either the complainer or the appellant in evidence. We should add that in any event such an approach would have highlighted the need for the jury to receive adequate directions on the mens rea of rape where the complainer's state lay on or close to the borderline between sleep and wakefulness, as it appears to have been in the present case. For these reasons we are unable to accept the contention that there was no miscarriage of justice. Accordingly, as in the case of Jamieson v H.M. Advocate, the conviction of rape will be quashed.

[10] In the circumstances it is unnecessary for us to express any opinion on the other respects in which Ms Scott criticised the directions of the trial judge in regard to the question of the mens rea of a person accused of rape. It is also unnecessary for us to consider a further ground of appeal in regard to the sufficiency of the evidence in this case for proof of mens rea, on which we were not addressed.