"On 23 December 2003 at [the locus], you did assault [the complainer] ... and seize hold of her, pull her onto a bed, lie on top of her, place your hand over her face, place your hand inside her clothing and handle her private parts, place your finger in her private parts, remove her trousers and pull her pants aside, and did rape her."

The appellant had not met the complainer (aged 23) before 23 December 2003.

"There has been a miscarriage of justice in respect that the verdict returned by the jury was one which no reasonable jury, properly directed, could have returned in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 for the following reasons -

(a) the evidence of the complainer, ... the principal and essential Crown

witness in the case, was demonstrated by the overwhelming weight of the vast majority of the other Crown evidence to be so confused, contradictory and untruthful as to render her evidence as a whole, and particularly in relation to the alleged rape, incredible and unreliable; the complainer's evidence was contradicted by the other Crown evidence in respect of inter alia -

(i)                  her degree of intoxication through drink or drugs before, during and after the alleged offence;

(ii)                where, and in whose company, she had been before the alleged offence;

(iii)               her intimacy with the appellant in the period leading up to the alleged offence;

(iv)              the locus of the alleged offence;

(v)                the furniture within the locus of the alleged offence;

(vi)              how she came to be alone with the appellant within the locus of the alleged offence and whether he was already partially unclothed at that time;

(vii)             her description of the alleged rape and her account of how the appellant came to be divested of his clothing during it;

(viii)           how her underwear came to be torn and whether she had made any statement relative thereto to the police.

(b) the evidence of injury and distress relied on by the Crown for

corroboration of the complainer's evidence was equivocal and, in light of the complainer's general incredibility and unreliability, of insufficient materiality, substance and weight to support her allegation of rape."

Discrepancies in the evidence

[3] There were undoubtedly discrepancies in the evidence. In particular:

[5] The sequence of events: There were many discrepancies relating to the sequence of events leading to the sexual intercourse complained of.

(a) The complainer described calling at Mr and Mrs M's top floor flat at about

7.50 p.m. on 23 December 2003. She was accompanied by her boyfriend J and her two-year-old daughter. The purpose of the visit was to collect a kitten for her daughter's Christmas. According to the complainer, Mr and Mrs M were not present in the flat, but the appellant and his girlfriend L were sitting watching TV. Mr and Mrs M's young son introduced the adults. The whole group went briefly to the appellant's flat to get cat-food, returning almost immediately to the top floor flat. Later, J left the flat with the complainer's child to look for Mrs M. The complainer and L were talking together in a bedroom. The appellant came into the bedroom, and sprawled bare-chested on the bed. He began arguing with L, who stormed out of the flat. The appellant then attacked and raped the complainer.

(b) Mr and Mrs M gave different evidence. They described being present in their flat when the complainer arrived at about 5 p.m. with J and the complainer's child to collect a kitten. R, a friend of Mr and Mrs M, was present, but not the appellant or his girlfriend L. At about 6.30 p.m. or 7 p.m., Mr and Mrs M and R took the complainer, J and the child to R's flat, which was situated two floors above the appellant's flat. A party was taking place in R's flat, and the appellant was a guest at that party. Everybody was drinking. According to Mr M, the complainer and the appellant were dancing and getting intimate on the couch, with the complainer sitting on the appellant's lap. According to Mrs M, the complainer was sitting on the appellant's knee having a carry-on. The complainer was kissing the appellant's cheek, and feeling his leg. Both Mr and Mrs M spoke of noticing that the complainer and the appellant had left R's flat, at approximately the same time as J and L left. About half an hour later, Mr and Mrs M heard a banging noise in the tenement close. When they went out to investigate, they found J and L trying to get into the appellant's flat. Mr and Mrs M then witnessed the finding of the complainer in the appellant's bedroom in a distressed state, complaining of rape.

(c) J's evidence about the sequence of events was again different. He described arriving at Mr and Mrs M's flat at about 8 p.m. with the complainer and her child. No-one was in, except Mr and Mrs M's young son. J and the complainer sat and waited. Mrs M then arrived. They had a conversation, during which Mrs M mentioned the appellant. J knew the appellant, and had in the past stayed in his flat. J wished to speak to the appellant. Accordingly J, the complainer, her child and Mrs M went to visit the appellant in his flat. J's recollection was that a party was taking place in the appellant's flat, with vodka and cans of beer. The appellant was there, as was his girlfriend L, several males and another female. J saw no kissing, cuddling or dancing involving the complainer and the appellant. At one stage, L offered to give J some cat-food, and so he, L and the child left to go to L's house. On their return, they could not get into the appellant's flat, as the front door was locked. They banged on the door. L became angry. Eventually the appellant opened the door. He was bare-chested and dressed only in jeans. In his evidence, J denied being in any other flat, such as R's flat.

(d) The appellant did not give evidence at the trial, but his account was heard by

the jury when the tape of his interview with the police was played in court. No reference was made to the contents of the tape or to the tape transcript in the course of the appeal, but it was clear from the extended notes of the cross-examination of the complainer, and from the judge's charge and his report to the Parole Board, that the appellant's position was that he and the complainer were in R's flat; the complainer danced with him, sat on his knee and kissed him; the complainer, J, L, and the complainer's child then accompanied the appellant downstairs to his flat where the complainer continued to drink and kiss the appellant; the complainer then suggested that J and L should take the child and go to L's flat to get cat-food; when that group left the flat, the complainer deliberately locked the appellant's front door from the inside; once in the bedroom, she took off her own clothes and the appellant's clothes; and they then indulged in a variety of consensual sexual activities including oral sex, anal stimulation, and sexual intercourse. According to the appellant, the complainer only changed her tune when the others arrived back at the flat.

Competing accounts of the intercourse

[8] In addition to the discrepancies in the evidence noted above, the jury were faced with two competing accounts of the sexual intercourse which had admittedly taken place.

Medical evidence and evidence of distress

Submissions for the appellant

[14] Referring to section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, Mr. Wheatley Q.C., Solicitor Advocate, submitted that there had been a miscarriage of justice. The verdict of the jury was one which no reasonable jury properly directed could have returned. The overwhelming weight of other evidence showed the complainer's evidence to be confused, contradictory, and untruthful. The complainer was therefore incredible and unreliable. Reference was made to King v H M Advocate, 1999 J.C. 226, at pages 228G - 229B; and AJE v H M Advocate, 2002 J.C. 215; 2002 S.C.C.R. 341. Unlike cases such as King cit. sup., and Donnelly, 2000 S.C.C.R. 861, the present case was not a strong prosecution case where it was very much a jury question what evidence to accept, and what to reject. While there was a sufficiency of evidence, there was no support for the complainer's version of events in the other evidence. The other prosecution witnesses differed from her on almost every point. The other evidence threw great doubt on the complainer's evidence, because it was so different.

Submissions for the Crown

[21] The Advocate Depute submitted that the appeal should be refused. There had been a sufficiency of evidence. No common law submission directed to the quality or character of the evidence had been made at the trial. Counsel for the appellant had made an aggressive jury speech, characterising the complainer's evidence as rubbish and lies. But at the core of the case was the fact that the complainer had given evidence that she had been raped. The jury had heard all the evidence, with their attention being drawn in the speeches and the charge to the difficulties now founded upon by the appellant. The conflict about the locus; the conflict about the torn underwear; the divergences in evidence about times, places, and amounts of drink, were all matters put before the jury for their consideration. The Advocate Depute submitted that those matters were collateral to the essential matter of the alleged rape.

Discussion

[29] Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, as amended by section 17 of the Crime and Punishment (Scotland) Act 1997, provides:

"By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on -

... (b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned."

"In seeking to formulate the appropriate test we begin with the words of section 106(3)(b). If we ask in what circumstances there may be the kind of miscarriage of justice which the provision covers, then it is obvious first of all that the jury will have returned a verdict convicting the appellant, since section 106 as a whole deals with appeals by persons who have pled guilty or been convicted by a jury. So the verdict to which section 106(3)(b) refers is a guilty verdict. The miscarriage of justice therefore arises where the jury return a guilty verdict which no reasonable jury properly directed could have returned. The test is objective: the court must be able to say that no reasonable jury could have returned a guilty verdict on the evidence before them. Since in any case where the provision is invoked the jury will ex hypothesi have returned a guilty verdict, their verdict will have implied that they were satisfied beyond reasonable doubt that the appellant was guilty. What the appellant must establish therefore is that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty ...

It follows from what we have said about the approach which this court should adopt that, although we require to examine the evidence which was before the jury, it is not for us simply to substitute our view of that evidence for the view which the jury took. In particular, a miscarriage of justice is not identified simply because, in any given case, the members of this court might have entertained a reasonable doubt on the evidence. If that were all that was required, Parliament would have gone far towards replacing trial by jury with trial by the judges of this court. The words in the provision were clearly chosen to avoid any risk of that. Applying the words which Parliament has enacted, we can quash the verdict of a jury only if we are satisfied that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was guilty."

"Following that approach, the question has to be asked whether the verdict in this case, on the evidence before the jury, could have had a rational basis. In that connection it is to be noted that, in a case where there was a body of evidence which was quite inconsistent with the accused's guilt, for example that supporting an alibi, a jury could reasonably reject such evidence precisely because it was inconsistent with Crown evidence which they had decided to accept. No more elaborate explanation for rejection need be sought. In Smith v H.M. Advocate, supra, at paragraph 23, it was indicated that there might be cases in which the evidence against the Crown case might be so overwhelming in comparison with the evidence relied upon by the Crown that no reasonable jury could convict. In these circumstances it becomes necessary to assess the evidence in the present case with a view to identifying whether the jury had a rational basis for their rejection of [certain evidence] ..."

"As is apparent from the statutory provisions to be found in section 106 of the 1995 Act, the function of this court is not to conduct a general review of jury decisions and, in the event of its being persuaded that they are mistaken, substituting its own view in place of the jury's verdict. The terms of section 106(3)(b) provide the sole criterion for the assessment of a jury verdict in the light of the evidence. If we were to decide on some general basis that the verdict in this case was unsatisfactory in the light of the evidence, and quash the conviction, we would be engaging in an activity which Parliament has not authorised ..."