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Spendiff v. Her Majesty's Advocate [2005] ScotHC HCJAC_68 (07 June 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Penrose

Lord Cameron of Lochbroom

[2005HCJAC68]

Appeal No: XC230/03

OPINION OF THE COURT

delivered by LORD PENROSE

NOTE OF APPEAL AGAINST CONVICTION

ROBERT JAMES SPENDIFF

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Burnett Christie Knowles McCourts

Respondent: Beckett, A.D.; Crown Agent

7 June 2005

[1] 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."

[2] At the hearing of the appeal, counsel did not advance argument in support of grounds 3 and 6. Of the original grounds that were not allowed, it is relevant to take note of one in the light of the argument that was advanced. Ground 4 was that: "There was no evidence of any force before the jury enabling them to convict the appellant of that element of the charge relating to rape". On 5 October 2004, additional grounds of appeal were allowed to be received and argued with the original grounds. The additional grounds were as follows:

"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."

[3] Between the dates of preparation of the notes of appeal submitted on the appellant's behalf, the court had issued opinions in two cases, Lord Advocate's Reference No 1 of 2001, and McKearney v HM Advocate. In opening his submissions, counsel for the appellant acknowledged that the additional grounds of appeal were based on McKearney. He argued that the illumination of the law in Lord Advocate's Reference No 1 of 2001, and the subsequent decision in McKearney, created a number of obvious difficulties. At the date of the trial, clandestine injury was a crime known to the law distinct from rape. Ground of appeal 2 was focused on the requirements for proof of that crime as understood at the date of the trial, and he intended to argue the ground of appeal on that basis. However, one result of Lord Advocate's Reference No 1 of 2001 was that clandestine injury could no longer be recognised as a crime distinct from rape. On that view, part of the conviction would of necessity fall, since it was of a crime that was no longer recognised. The grounds of appeal in the second note referred to the law as now understood, reflecting more recent authority, notwithstanding that the trial judge could not be criticised for failing, in October 2000, to anticipate the decision in McKearney.

[4] Changes in understanding of the essential characteristics of a crime can undoubtedly cause difficulties in cases in which trial and appeal diets span decisions crucial to the illumination of the common law. The scope for imaginative analysis and reconstruction of the issues relevant to disposal is considerable. However, it is essential to take and maintain a firm grasp of the realities of the situation. Having regard to the terms of the indictment, the allegations as a whole, and in particular those relating to initial penetration while the complainer was unconscious, were criminal as the law was understood before Lord Advocate's Reference No 1 of 2001, and remain criminal as the law is now understood.

[5] The Lord Advocate remains master of the instance, and may, if he thinks fit, libel the clandestine penetration of an unconscious female as indecent assault. In the words of Macdonald,

"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."

[6] In circumstances such as the present case discloses, the single continuing act of intercourse might now be libelled as a single charge of rape, without attracting criticism as amalgamating in a single charge the disparate elements of clandestine injury and rape. But the essential characteristics of the assault have not changed, and it remains a matter within the Lord Advocate's discretion how the allegations are libelled, and in particular how clandestine penetration of an unconscious woman is libelled.

[7] The issue for the court on appeal is whether the conviction of the appellant on the indictment before the trial court was a miscarriage of justice. The trial judge directed the jury that the charge in the indictment was divided into two different types of crime, clandestine injury and rape. He gave separate directions in respect of each, and, in relation to clandestine injury, explained that lack of consent was related to the complainer's unconscious condition. He proceeded to emphasise in particular the need for proof by corroborated evidence of lack of consent in that context. Counsel criticised the specific directions. But even if one were to assume that in the light of later authority clandestine injury could not be libelled other than as the crime of rape, the result would be that the trial judge placed additional requirements on the Crown over those properly relevant to the single charge on the indictment. That would be favourable to the appellant. We cannot see how, of themselves, the directions relating to requirements that, arguably, had become redundant in the light of later authority could amount to a miscarriage of justice in the circumstances of this case.

[8] At the outset of his charge, the trial judge defined assault, in terms which were not criticised by counsel, and emphasised the defence of consent: page 19. A proper reading of the charge in the circumstances of the trial placed the central issue round the matter of consent : pp 21-23. The complainer claimed that she had been asleep and could not consent - the jury were told that that evidence required to be corroborated: p. 21 lines.1-5. They were likewise told that if they believed the appellant or if his evidence raised a reasonable doubt in their minds they should acquit. There was no dispute that the appellant had deliberately had sexual intercourse with the complainer as a single act.

[9] The complainer's evidence at trial did not coincide in every particular with the libel, but was not materially different in effect, and it is clear from the verdict of the jury that she was accepted as a credible and generally reliable witness. At the date of the events in question, the complainer had been staying at the appellant's house for some weeks. She had gone there after a dispute with her parents. Her friend C, the appellant's step-daughter, already lived at the appellant's house. There was no suggestion that there had been a sexual relationship between the complainer and the appellant prior to the events narrated in the charge. The complainer was 18 at the time. The appellant was 43. The complainer was comfortable living in the house and the relationship among those staying there and visiting the house, as described by her, was of friendship that could include a "carry on", but no improper conduct. Among those who stayed occasionally at the appellant's house was the complainer's friend B.

[10] On the morning of 9 August 1999 the appellant, who had gone out after returning from having worked night shift, telephoned the house and proposed that the two young women should join him in a pub (the Fountain). They, together with B, who had stayed the previous night, met the appellant and his friend Barney (Barney McGuire) in mid-afternoon. By this stage the appellant and Barney had been drinking for some hours and were "quite merry". The group had a few drinks before moving on to another pub (the Stratford) in the early evening. On the way C left the group after falling out with the appellant. Of the remaining members of the group, B left after about half an hour. After another half hour, or perhaps later, the complainer and appellant left the second pub. The complainer intended to return to the house. By this stage she was merry, not drunk.

[11] By now, the appellant was under the influence of drink. On the way towards home he began to cuddle the complainer and become affectionate. She decided to leave him and run on ahead. She reached the house, entered it and removed most of her clothing. She went to bed on the settee in the living room wearing a short lycra top over her bra, and under-pants. She had the television on, but there was no other light in the room. She had a snack, and turned the television off.

[12] The complainer then described how she woke up to find the appellant lying on top of her with his penis in her. She felt the jagging pain of his penis penetrating her at the angle at which she was lying. She was lying on the bed on her tummy. Her pants were to the side, with one part down on her leg. The appellant was stroking the side of her face, and kissing her neck, and having sex with her. His other hand was on top of her arm. But he was not holding her down. He was saying the name of another female whom he had been seeing. It took a few seconds for her to realise what was going on. As soon as she did, she used her weight to try to remove him. She asked what he was doing, and screamed at him to stop. He said that he was doing what she wanted. Intercourse continued for a short time, which the complainer said was only about 35 seconds. She said that she had shouted at him to get off her, to stop, and that she did not want what he was doing. The complainer was able to bring her leg up between his legs and kick him, she thought possibly on the testicles. She pushed him off and he fell back from the bed. She got up and ran. The complainer did not know when the appellant came in. She explained that she was sleeping. When these events happened the television was on.

[13] The complainer said that she ran from the house dressed as she had gone to bed. She had nothing on her feet. She did not know where she was running. She ran along the road. She knew that there was a garage ahead, and a telephone box. She reached the telephone box. She said she was a wee bit shocked, a wee bit hysterical, really upset. She dialled "999". She asked for help. As she was speaking she saw the appellant running towards the telephone box. She dropped the telephone and ran away. He shouted at her to stop. She kept on running. A passing car stopped and she asked the male driver for help, to take her to a police station. As they were driving off, the police arrived and took over. She was put in the back of the police car

[14] There was a tape-recording of the complainer's telephone conversation following her "999" call. It ended with her screaming as she saw the appellant and dropped the hand-set.

[15] The driver of the car who helped the complainer was Mr Timothy Wallace. He saw that the complainer was distressed and only partially dressed. He described the complainer cowering against the car window crying, with her hands to her face. She refused to say what had happened. The police who took over care of the complainer spoke of her being very distressed, repeating that she did not want him to do that, and that she had told him to stop.

[16] The prosecution relied on the transcript of the appellant's interview by the police. In very general terms he admitted that intercourse had taken place, but said that it was with the complainer's consent. His account of the movements of the members of the group differed from the complainer's evidence summarised already. It is unnecessary to attempt to reconcile the accounts. The elements of his statement that were relied on in the appeal were few. He said that he had returned home alone. He thought the time would be about midnight, or, in another answer, quarter to one. When he got in, the complainer was possibly lying on the settee. She was awake. He spoke of going to bed in the living room, that there "might have been a kissing and .. an entry from the back". He had not had any discussion with her before intercourse. There had been no discussion of protection. There was some talk after intercourse. The complainer then "fluctuated" her eyes. She ran out of the house and away along the road. He went after her, but then went to his mother's house for a time before returning home. The appellant was asked whether the complainer had asked him to stop at any point. The transcript of the exchange proceeded:

"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?

Vaguely.

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."

[17] In the interview, the appellant said that the complainer's pants were still on, but that they must have been to the side. At the trial, the appellant gave evidence that he had been out drinking, at one stage in the company of the complainer and others, but latterly alone in the Stratford Bar. He returned home at or after midnight. The complainer, who was living in his house at the time, was in bed, but awake. There had been some familiarity between them earlier in the evening. He touched her feet as she lay in bed. She responded by moaning in a way that encouraged him to think that further advances would be welcome. He entered the bed and proceeded to penetrate her, with her consent. She became distressed. He had no idea why that happened. She ran from the house, partially dressed. He followed her.

[18] In directing the jury on the requirement for corroboration, the trial judge said:

"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."

[19] The first substantial issue in the case is whether there was a sufficiency of evidence for proof of the allegations in the indictment. That resolves into a question whether there was corroboration of the evidence of the complainer, which clearly covered the material allegations and was accepted by the jury as credible and reliable. Counsel for the appellant's argument on the evidence was essentially straightforward: the only source of evidence, properly understood, was the complainer. Her distress, observed by others, could not corroborate. There was nothing else, and the trial judge's directions were focused solely on that material. The Advocate Depute argued that the complainer's distress, observed by others de recenti, was sufficient to corroborate the complainer. But, even if her distress were left out of account, there were other facts and circumstances sufficient to corroborate the complainer. He listed ten points:

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.

[20] These circumstances were not specifically referred to by the trial judge other than at page 30 lines 8 to 20, but they amount to ample independent evidence to support her evidence that she was asleep and did not consent to intercourse. At the date of the trial, it would not have been arguable that there was insufficient evidence to entitle a jury to convict the appellant of rape. Counsel's argument that there was insufficient evidence to convict of clandestine injury was based on the law as understood at the date of the trial, and in particular on Fox v HM Advocate. The substantial issue in that case was whether it was necessary for circumstantial evidence to be more consistent with the direct evidence on crucial facts than with alternative accounts to be corroborative of the direct incriminating evidence. It was held that there was no such requirement, over-ruling Mackie v HM Advocate. The allegation in Fox, supported by the complainer's evidence, was that the appellant had penetrated the complainer when she was in such a state of intoxication as to be incapable of consenting or withholding consent to sexual intercourse. The appellant's position was that the complainer had been a willing participant until she realised that her sexual partner was the appellant and not another party with whom she would have been willing to have intercourse. The issue was put by the Lord Justice General (Rodger) as follows:

"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."

[21] It was held that the test proposed by counsel, relying on Mackie, was not consistent with the law on corroboration. The evidence of distress was held to be sufficient to corroborate the complainer's evidence that intercourse had been without her consent. At an earlier stage the court had refused a prior ground of appeal, that there was insufficient evidence that the complainer had been in such a state of intoxication as to be incapable of giving or withholding consent. There was evidence of her state of intoxication at the time she was put to bed to entitle the jury to hold that she would have remained unconscious at the material time.

[22] In the present case, there was similarly evidence independent from the complainer's direct evidence from which the jury could properly conclude beyond reasonable doubt that the complainer was asleep at the material time. The complainer could not speak to the time of the appellant's return to the house. But the appellant did, and allowing for the range of times mentioned, it was open to the jury to conclude that the complainer had gone to bed, had prepared for sleep by partial undressing and, after her snack, by extinguishing the only source of light, the television, and had been in bed for a period of hours before the appellant's return. She had taken drink earlier. The appellant's evidence of her moaning was not eloquent of the response of a teenager to physical contact by a middle-aged man such as to indicate that she was awake. The whole circumstances were such as to confirm her evidence that at or after midnight she was asleep when the appellant penetrated her from behind as she lay prone, causing sharp pain because he entered at an inappropriate angle. Ground 2 of the grounds of appeal is without substance.

[23] Grounds of appeal 7 to 9 reflect in different ways counsel's interpretation of the opinions in Lord Advocate's Reference No 1 of 2001 and McKearney, as they bear on the corroborative value of independent and reliable evidence of de recenti distress displayed by a complainer after a sexual incident that she had characterised as rape. Leaving to one side the questions whether these cases reflected a change in the previous law, or, as it was put by counsel, merely provided fresh illumination of it, and, if they did change the law, whether the change provided grounds for review of cases disposed of before 2002, it is of some importance to note what they decided. In Lord Advocate's Reference No 1 of 2001, the Lord Justice General defined the crucial elements of rape, in the case of a woman capable of giving or withholding consent, as follows:

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.

[24] That can be compared with earlier formulations such as that found in the opinion of Lord Justice General Hope in Jamieson v HM Advocate:

"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."

[25] The difference of substance between the formulations is limited to the definition of the actus reus of rape. The requirement for "force" is omitted. That, of course, was the issue in the reference. The mens rea of rape was not changed nor, indeed, was it illuminated by the decision, nor were the means by which that could be determined so illuminated.

[26] McKearney raised more directly the question of what was required to determine whether the accused had the mens rea necessary for the act of intercourse to be characterised as rape. The Lord Justice Clerk doubted whether the complainer's distress observed de recenti could tell one anything about the accused's state of mind, but found it unnecessary to express a concluded view on the matter. That, however, was a case where the Crown did not allege that force had been used, and the Lord Justice Clerk's statement was confined to that context in McKearney, supra, at para. [16]. This is not such a case.

[27] It is clear that there may be cases in which distress de recenti cannot instruct a jury as to the state of the man's mind. Typically, these may involve competing accounts of surrounding circumstances, as in Smith v Lees. But that need not be the position. It is conceivable that on a particular occasion the female may respond to an act of intercourse with a regular sexual partner by showing distress for any of a wide range of collateral reasons particular to the instant experience. The truthful and reliable evidence of third parties of their observations of such distress, of itself, would be un-instructive of the state of mind of the man. It would not follow that other circumstantial evidence, additional to that of distress, could not instruct the jury as to the man's mental state. For example, if a man were to enter the bedroom of a female stranger who was asleep, and were to proceed there and then to penetrate her, causing her to regain consciousness whereupon she protested, causing him to desist and leave clandestinely as he had come, leaving the woman in a state of extreme distress, it is not difficult to understand that the totality of the circumstantial evidence could entitle a jury to conclude that the man had the mens rea of rape. Her distress would be an important element of the total picture.

[28] Much depends on a proper analysis of the stage in the process at which the issue of mens rea falls to be determined and of the materials available to the jury at that stage. Of necessity intercourse will have been established. Equally the woman's lack of consent will have been established. If it is assumed that there is no evidence of violence, there will nevertheless usually be circumstantial evidence relating at least to the place, the individuals' relationship apart from the events complained of, and preceding events related to the incident. In Smith v Lees, the Lord Justice General commenting on Yates v HM Advocate said:

"...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."

[29] Lord McCluskey similarly expressed the view that a legitimate inference could be drawn from distress and "used to corroborate the victim's direct evidence that force was in fact used". Lord Sutherland expressed his view of Yates as follows:

"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."

[30] He said that Yates was correctly decided. Force, at that time, in the extended meaning it had developed, was indicative of the accused's state of mind at the material time. The inference of the use of force justified the further inference that the accused had the mens rea required for the crime of rape. With the exception of Lord McCluskey, the court treated mens rea as an inferential fact. Lord McCluskey, expressing the point in a way that was to recur in his opinion in McKearney, treated the inference of force as an element of "evidence" that, taken with the complainer's direct evidence, corroborated the use of force. However, the proper logical analysis is perhaps of little importance. Wherever there is independent evidence of de recenti distress, that evidence, along with the complainer's direct evidence will have instructed the jury's primary conclusion on the lack of consent. The same elements are, on the analysis in Yates, then available to establish force and, necessarily by inference, that the accused had the mens rea of rape. The characterisation of mens rea as an inferential fact in a common law crime is hardly surprising or unusual. It can seldom be anything else.

[31] In discussing the character and nature of dole, Hume on Crimes, vol I cap 1 at page 22 says:

"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 ..."

[32] The necessary inference can be drawn. Thus proof of guilty mind can be inferred from the circumstances in which the act charged took place - cf. Megrahi v HM Advocate 2002 JC 99 paras. 31 to 36.

[33] In these circumstances, it is at least surprising that it should be thought that the removal of the former requirement for proof of force in the definition of the crime of rape should have changed in a fundamental way the processes of reasoning properly adopted in arriving at the view that the accused had the mens rea of rape. We are not at all persuaded that the decision in Lord Advocate's Reference No 1 of 2001 in some way removed the scales from the eyes of generations of highly respected judges and practitioners and disclosed a need for independent proof of an essential characteristic of proof of rape, the pannel's mens rea, that had become concealed beneath an overburden of rationalisation of the role of force in the crime.

[34] So far as this case is concerned, the Advocate Depute's analysis of the sources of circumstantial evidence available along with the complainer's direct evidence and the very strong evidence of distress provide ample corroboration, on the test applicable at the time, of the overcoming of the complainer's will by force. In this respect this case is unlike cases such as McKearney. The inference from the primary facts that the accused knew that the complainer did not consent or was at least reckless whether she consented or not was an inference that the jury were entitled to draw, whether one has regard to the law as it was understood at the date of the trial or as now understood in the light of Lord Advocate's Reference No 1 of 2001.

[35] In criticising the directions of the trial judge, counsel argued that the court had to apply the law as now understood in the light of Lord Advocate's Reference No 1 of 2001 and McKearney, and that accordingly, this being a case in which the Crown did not rely on the use of force, there was a requirement for a direction on mens rea such as indicated in the later case. There is no substance in the criticism of the trial judge. He did give directions such as might have been required in a case not involving force, possibly gratuitously. It was an unnecessary requirement. The complaint was of intercourse at an unnatural angle causing pain. Even if intercourse against the consent of the woman were not always "real injury" to her person, there was evidence that it was of that character in this case. The case is not materially different from Gordon v HM Advocate. To the extent that the trial judge did give directions on the relevance of the appellant's belief that the complainer was a consenting party, he anticipated McKearney. But that was in the appellant's favour.

[36] It is unnecessary in this case to resolve the issue whether the court must apply the law of rape as now understood in disposing of appeals against convictions that occurred prior to Lord Advocate's Reference No 1 of 2001. It may frequently be the case in such appeals that there will not be a miscarriage of justice precisely because the applicable law as understood at the time was more demanding than that now understood to apply. The continuity of the common law is a powerful factor pre-disposing one to adopt that course. It has the support of Boncza-Tomaszewski v HM Advocate, applying R v Bentley. It may be open to discussion whether in Scotland a change in the substantive criminal law should be treated in the same way as procedural changes. Lord Bingham distinguished the treatment of the substantive law of murder from the conduct of the trial and the direction of the jury in his principal statement of the approach to be adopted before drawing a distinction between the common law and stature law, no doubt influenced by the fact that the English law of crimes is substantially statute-based. The decision of the majority in Lord Advocate's Reference No 1 of 2001 explicitly removed what had previously been a distinguishing characteristic of the crime of rape and, it is said, at the same time removed from the criminal lexicon the crime of clandestine injury (notwithstanding that it continues to appear in the statutory definition of "sexual offence"). The decision was taken in express recognition of social changes that rendered inappropriate the continued reference to force (in its extended meaning as including inducing fear). If the issues arising from the decision do arise for determination, they will require careful analysis and discussion.

[37] For present purposes, it is immaterial whether the law is applied as understood at the date of trial or now. The appeal fails.