APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
LordCameron of Lochbroom
Appeal No: XC230/03
OPINION OF THE COURT
delivered by LORD PENROSE
NOTE OF APPEAL AGAINST CONVICTION
ROBERT JAMES SPENDIFF
HER MAJESTY'S ADVOCATE
Appellant: Shead; Burnett Christie Knowles McCourts
Respondent: Beckett, A.D.; Crown Agent
7 June 2005 On 5 October 2000, the appellant was convicted at the High Court at Edinburgh of a charge that he assaulted K and:
"while she was in a state of unconsciousness and bereft of the power of resistance owing to her being asleep did lie beside her on the bed, pull her pants down, place her face down, lie on top of her, insert your private member into her private parts and did have sexual intercourse with her without her consent and thus having caused her to regain consciousness and awaken you ignored her demands that you stop, persisted in your conduct despite her protestations and you did rape her."
The appellant lodged a Note of Appeal against conviction on 2 December 2000. Leave to appeal was granted on three of the original grounds then advanced:
"2 The trial judge erred in his charge to the jury on the law relating to that element of the libel which disclosed the crime of clandestine injury to a sleeping woman. The case of Fox v Her Majesty's Advocate 1998 SCCR 115 is authority for the proposition that the complainer's unconsciousness is a factum probandum which requires to be proved by the Crown with corroborated evidence (see Fox, supra p 118F). In his charge to the jury the judge failed to advise them of this burden saying instead (at page 22, line 2 et seq.) that for the completed crime of clandestine injury to be proved the Crown require to provide corroborated evidence of two things: firstly that penetration of the vagina took place and, secondly, that the complainer did not consent. It is submitted that that is a misstatement of the current law on clandestine injury inasmuch as it relieves the requirement upon the Crown to show, by corroborated evidence, that the complainer was unable to consent (or refuse consent) to intercourse because she was asleep or otherwise unconscious at the time of penetration. It is further submitted that in this case the Crown failed to show by corroborated evidence that the complainer was indeed asleep at the time of penetration.
3. The trial judge erred in failing to advise the jury that because the only evidence which was available to them to corroborate either element of the libel (namely clandestine injury and rape) was the distress allegedly shown by the complainer, they would necessarily require to delete one of those elements as to fail to do so would be to allow one instance of distress to two separate crimes, thereby rendering the distress evidentially equivocal.
6. The Judge erred in offering the jury a summary of the evidence of the complainer which failed to refer to a material discrepancy brought out in cross-examination. In evidence in chief she referred to feeling the complainer's (sic) penis inside her on waking up. In cross-examination she said that the first thing she felt was the weight and a jabbing pain 'down there'. She further said: 'His penis wasn't inside me when I woke up. I felt him entering me because of the angle I was at'. In such circumstances had the jury believed the version of events elicited under cross-examination they would have been obliged to acquit him of that part of the libel relating to clandestine injury. Accordingly it was contrary to the interests of justice to relate one version of the complainer's evidence to the jury and not the other contradictory one, this being particularly so when the evidence in the trial had lasted only two days and when one could reasonably expect the evidence to be fresh in the jury's mind."
"7. There was insufficient evidence led to establish that the appellant had the necessary mens rea for rape. The only source, properly understood, on which the jury could have relied was the complainer. That being so the trial judge ought to have directed the jury to acquit.
8. In any event the trial judge failed to give adequate directions on the issue of the appellant's mens rea. He should have directed the jury that the mens rea of the crime consisted of an intention on the part of an accused to have intercourse with the complainer, together with knowledge on his part that she does not consent, or with recklessness on his part as to whether or not she does and that mens rea requires to be established by corroborated evidence.
Seperatim. The trial judge did not direct the jury to the evidence on which they could rely to establish that the appellant had the necessary mens rea.
9. In any event he misdirected the jury at page 10 of the charge by suggesting that corroboration for the account given by the complainer could be found in the evidence of her distress. Those directions were apt to suggest that the evidence of distress could (be) used to establish the appellant's state of mind."
"Where the woman is insensible through sleep, a fit, drink or the like, so that she neither yields nor withholds consent, intercourse is an assault aggravated by indecency and the real injury to her person - sometimes referred to as clandestine injury to women."
"Right did she ask you to stop at any point?
I didn't hear anything like that no.
Did she ask you to stop having sex with her?
If she did, if she did I would have stopped anyway yes.
Can you remember her saying that?
Right, so at what point did she say stop?
Well any, the point that any woman says stop to me it wouldnae matter or in particular KI would stop.
Right so did she say stop?
I can't recall Officer
But she might have said stop?
She might have said stop yeah.
And would that have, you're saying that would have made you stop
That would have made me stop instantly."
"Fourth, corroboration. No person can be convicted of any offence upon the unsupported evidence of one witness alone no matter how credible and reliable that witness may be. There must be what is termed corroboration. That means in respect of the charge there has to be separate evidence from some other independent credible and reliable source which confirms and supports the Complainer, that is K's evidence, and points to the guilt of the accused. Now ladies and gentlemen, I will return to the matter of corroboration shortly because, as I think has been hinted to you, where you find corroboration in a case of rape such as this, and clandestine injuries again I will come on to tell you about in a minute, is in the evidence of distress in which the victim, the alleged victim was found shortly after the alleged events, but I will tell you about that in a moment ...
Now, can I return to what is corroboration ... Let me tell you what you can use as corroboration. Evidence can take the form of different things, ladies and gentlemen. Of course, there will be eye witness evidence in a case and you have got that from K, she is the eye witness of what happened to herself and you are looking for corroboration of what she says to see if it exists. Now in a case such as this, rape cases, clandestine injury, finding another eye witness is rare. So when one's looking for corroboration one has to look at other things, circumstantial evidence, for example, and that is evidence of something else from which you cam draw a conclusion or inference ...
(Having directed the jury on the requirements for proof of assault) Now, let me get on to the more important elements of the indictment for your consideration, ladies and gentlemen, because, as I say, it is really divided into two different types of crime. The first element, ladies and gentlemen, is what is somewhat quaintly called in this country the crime of clandestine injury. Now, let me read the words of the indictment over with you, ladies and gentlemen, to indicate what is being libelled exactly here which is you will see ... the libel is that while she was in a state of unconsciousness and bereft of the power of resistance owing to her being asleep, the accused did lie beside her on her bed, pull her pants down, place her face down, lie on top of her, insert his private member into her private parts and did have sexual intercourse with her without her consent. Now, these words down to the word 'consent' there, is the crime of clandestine injury. Now let me tell you what that is. Sexual intercourse by a man with a woman is only lawful if the woman is capable of consenting to it and does in fact consent ... If the act of sexual intercourse takes place forcibly and against the will of the woman while she is conscious that is rape, but the first part of this charge, ladies and gentlemen, is not one of rape but of what is called clandestine injury to women and that crime is committed when a man has sexual intercourse with a woman who is asleep or unconscious for any other reason, for example, because of the consumption of alcohol, and she does not consent to the sexual intercourse. So, it goes back to this point that sexual intercourse with a woman is only lawful if the woman is capable of consent and does in fact consent. So, consent obviously requires someone to be conscious and a woman who is asleep or unconscious cannot be said to consent to sexual intercourse even although for the same, for the very same reason she does not in fact resist because if one is asleep or unconscious for whatever other reason it is not possible to resist.
Now, for the completed crime of clandestine injury to be proved, ladies and gentlemen, there has to be corroborated evidence of two things. One, that sexual intercourse took place ... The second matter which requires to be proved for this part of the charge to be made out, that is the clandestine injury part, is that the Complainer, K, did not consent and once more you need corroborative evidence that she did not consent and you may think that that is going to be the critical issue in this case. Now the charge then goes on, ladies and gentlemen, to say this: 'and thus having caused her to regain consciousness and awaken you ignored her demands that you stop, persisted in your conduct despite her protestations and you did rape her'. Now, therefore, I have to tell you what rape is, ladies and gentlemen, because it is slightly different. The crime of rape is committed where a male person has sexual intercourse with a female by overpowering or overcoming her will ... The will of the woman may be overpowered by force such as the use of violence but any method of overpowering or overcoming the will of the woman can amount to force in the eyes of the law ...
Now once again, ladies and gentlemen, there are two matters, therefore, that require to be proved by corroborative evidence on this second part of the charge. One is sexual intercourse ... The second, was the intercourse with K this stage, that is once she has regained consciousness, was that achieved as a result of her being overpowered or overcome by force? Now, if the answer to both those questions is yet then it may be that you require to answer a third question which is probably something which just arises in this case which is even if the woman's will was in fact overcome or overpowered did the accused person nevertheless believe that she was consenting? Now, where an accused claims that he thought that the Complainer was consenting, if you are satisfied that intercourse took place and that the Complainer did not consent to the accused having intercourse with her, then you could acquit still acquit him and indeed you would have to acquit him if you accepted his evidence that he genuinely and honestly thought the Complainer was consenting to intercourse but it will not do, ladies and gentlemen, if he acted without thinking or was indifferent as to whether or not he did have her consent but is you are satisfied that he did genuinely believe that she was consenting even if you think that that belief was unreasonable, you must still acquit him, and of course, if that leaves you with any reasonable doubt about his guilt then from wherever in the evidence that doubt arises, you must acquit ...
Now, ladies and gentlemen, let me look at this critical evidence then of whether, or where you can find corroboration in this case and that is to say corroboration of the lack of consent ... (The trial judge referred to the complainer's evidence.)
Now, the second source of evidence where you can find corroboration then, ladies and gentlemen, is the evidence from other people, that is an independent source, and other people are independent people for this purpose, that the Complainer was in a state of distress immediately after the alleged - immediately after the events she alleged occurred. Now, such distress, ladies and gentlemen, because it may be indicative of the Complainer's state of mind at the time of the events, can corroborate this essential element, lack of consent of the Complainer ... So ladies and gentlemen, you can find corroboration in this case and I so direct you in law, by using the evidence from the other people in the case notably Timothy Wallace and Constable Caroline Conner plus the telephone call which is not just evidence of what she said but the state she was in. You can use that evidence of her distress to corroborate the lack of consent and you then have the two sources ... but in order to do so, as I say, you must accept that the distress was caused by the lack of consent and not something else. So there you have it, ladies and gentlemen, that is the evidence upon which you would be entitled to convict of all or part of the charge in this case because you have the two sources of evidence on these elements, the Complainer herself and corroboration by the distress, etc., but the fact that there is sufficient evidence as a matter of law does not mean that you, as the masters of the facts, are bound to accept that evidence ... Here you have a very sharp conflict, you have a classic jury question as often arises in cases of this type. You have the Complainer saying she fell asleep on the sofa bed, that she was not particularly drunk, she was wearing her top and pants, she retired to be because she said she was tired, she fell asleep having turned the television off. I think she said - it's up to you to decide - that she woke up on the bed with her pants pulled partly down and felt the weight of the accused on her, movement inside her and the accused stroking her cheeks. She pushed him off and ran out in a state of distress and ended up initially in the phone box and says that the scream was caused when he (sic) saw the accused running towards her. The Crown say that evidence should be believed and they say that that evidence is corroborated by the evidence of her distress. The accused tells a different story of him returning home to find the television on, K watching it. Again, you heard the evidence, it is your recollection that counts. She is awake, he touches her feet in some way and she makes this sound which was taken to be an invitation in the context at least of what he says was some kind of signs of prior affection in one of the pubs ... and the accused says that he got into bed with his trousers on and penetrated her from behind. So, he says that she consented and has no idea as to why she ended up in a distressed state. Classic jury question for you to resolve, ladies and gentlemen, and it is entirely a matter for you what evidence you accept and what you do not."
1. The complainer had returned home earlier than the appellant and was in bed at the material time;
2. She was in a state of substantial undress;
3. The time at which the appellant returned to the house was a time when it would be expected that the complainer would be asleep;
4. There was no evidence that the complainer and appellant had at any prior time had a sexual relationship;
5. There was a significant discrepancy in their ages;
6. The complainer and appellant had returned to the house separately, not as a couple;
7. On the appellant's evidence, he had taken the complainer's moaning when he tickled her foot as an indication of invitation when that was at best a neutral factor;
8. After the incident the appellant had initially followed the complainer into the street, but when he lost her went to his elderly mother's house (at about 2 a.m.) before returning to his own house, an action more consistent with guilt than innocence;
9. He came close to admitting, in his police interview, that the complainer had told him to stop; and
10. He could give no explanation, on his account of events, of the complainer's reaction in running from the house in a state of considerable distress.
"The importance of the argument for the appellant is that, as presented, it raised a general point about the nature of corroboration in our law. This is a case where the Crown led one witness to give direct evidence of the events (the complainer) and relied for corroboration on the appellant's admission of intercourse plus circumstantial evidence, including evidence from the witnesses who said that she was upset later that morning. In the light of Smith v Lees, counsel accepted, of course, that, while evidence of distress could not corroborate a complainer's evidence that particular sexual activity had occurred, it could corroborate her evidence that she had not consented to the sexual activity. If therefore the complainer's evidence and the evidence of distress had stood on their own, the evidence of distress would have been capable of corroborating her evidence that the intercourse took place without her consent. Here, however, the appellant gave an alternative account in his interview with the police and the complainer's subsequent distress was consistent with that account also. Counsel's submission was that the appellant's alternative account, as contained in the evidence, changed the situation. Once that alternative account was introduced, the evidence of the complainer's distress could not corroborate her evidence that she had not consented to intercourse."
1. The actus reus constituted by a man having sexual intercourse with the woman without her consent;
2. Mens rea on the part of the man constituted by his knowledge that the woman is not consenting or at any rate by his subjective recklessness as to whether the woman is consenting.
"The crime of rape consists in the carnal knowledge of a woman forcibly and against her will. Thus the mens rea of this crime includes the intention to have intercourse with the woman without her consent. The absence of a belief that she was consenting is an essential element in it."
"...evidence of the condition of the alleged victim of rape can afford 'corroboration of credible evidence, which the jury accept, that she has been raped'. Given the context in which this passage occurs, that is plainly an accurate statement of the law since a jury can infer from evidence of the complainer's distress that she did not consent to intercourse and that force must have been used."
"The difficulty with distress is that on its own it gives no indication of what has been its cause other than that some event of an unspecified but distressing nature has occurred. It is indicative of a state of mind but it is not in any way indicative of the nature of the act which has caused that state of mind. In my opinion, therefore, the value of distress on its own as corroborating evidence should be limited to situations where it is necessary to establish the state of mind of the witness. Accordingly in a rape case where it is necessary to establish that the penetration which ex hypothesi has been proved by evidence aliunde was without the consent of the witness, distress is properly available to provide corroboration of the lack of consent as it may be the only evidence available to establish the witness's state of mind. For that reason I consider that Yates was correctly decided. The accused admitted intercourse, which provided the necessary corroboration of that aspect. It having been established that intercourse took place, the distressed condition of the victim was apt to corroborate her evidence that that intercourse was without her consent. The combination of corroborated intercourse and corroborated lack of consent would entitle the inference to be drawn that her will had been overcome by force or fear. Accordingly all the essential elements of a charge of rape were established by corroborated evidence."
In relation to Yates, Lord Gill (as he then was) said at page 119:
"In Yates ... (the) crucial fact of penetration having been admitted by the pannel, the remaining facta probanda were that intercourse took place without the complainer's consent and that it took place by means of the use of force. Evidence of recent distress on the complainer's part was held to be capable of corroborating her evidence that she did not consent. If that was established it was legitimate for the jury to infer that her will was overcome by force."
"the act must be attended with such circumstances as indicate a corrupt and malignant disposition."
and, at page 23:
"If indeed the thing happen accidentally, and in the prosecution of some lawful act, from which the pannel cannot reasonably have any apprehension of the harm that ensues, this is exclusive of the notion of guilt: there is no malus animus, no vice or corruption of purpose, to fix an evil character on his deed. But if the circumstances indicate a wicked and malignant spirit, a resolution to do some violent and atrocious mischief ..."