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HIGH COURT OF JUSTICIARY
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[2007] HCJ16
OPINION BY LORD
HODGE
in the cause
HER MAJESTY'S
ADVOCATE
against
L
ญญญญญญญญญญญญญญญญญ________________
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AD:
McConnachie, Q.C.
Counsel:
Moir, Advocate
8 November 2007
Background
[1] This
was a submission of no case to answer under section 97 of the Criminal
Procedure (Scotland) Act 1995 in a case in which the accused faced a charge of
rape. Unusually, the Crown, while
submitting that there was corroboration of the complainer's lack of consent and
the mens rea of the accused from a
number of sources, invited the Court also to rule on whether the evidence of
the complainer's distress alone was sufficient corroboration. I repelled the submission for the reasons set
out below and at the request of the Crown explain my reasoning for doing so in
this opinion. In the event the jury
unanimously found the charge not proven.
The evidence
[2] The
complainer's account was that she, her boyfriend and his cousin purchased
alcoholic drink and visited the house of her boyfriend's uncle in the course
of a Saturday evening in August
2006. During the late evening the
complainer drank a bottle of Buckfast wine and later, after her boyfriend and
his cousin had gone to a family home nearby to sleep leaving her in the company
of the accused, she drank about four glasses of vodka. She said that she had been drunk and had
fallen asleep on the sofa in the livingroom of the accused's house. Thereafter she woke to find that the accused
had removed her belt and lower clothing and that he was having sexual
intercourse with her on the sofa. She
asked him what he was doing and sought to get up off the sofa. He desisted and withdrew from her. She left the house and returned to her
boyfriend's family home nearby in great distress. She told her boyfriend what had happened. She gave evidence that before she fell asleep
she had received a text message from her boyfriend telling her not to stay up
too late. She discovered the next day
that she had left her telephone in the house of the accused when she left. She also gave evidence that whenever she had
sexual intercourse with her boyfriend, he took the precaution of using a
condom.
[3] The
accused admitted that sexual intercourse had occurred but asserted that it had
been consensual and that the complainer had willingly participated in it. When she changed her mind, he had stopped
immediately and allowed her to leave his house.
He accepted that when having sex with the complainer he had not used any
protection.
[4] The
complainer's boyfriend gave evidence. He
spoke of visiting his uncle with his girlfriend and his cousin some time after
nine pm and of them drinking and listening to music for between four and five
hours. He and his cousin left at about
3 am because they were tired. The
complainer wanted to stay on for a while to party and he was under the
impression that other people had been invited to the house and were visit
shortly. On reaching home, he sent he
complainer a text message to come home soon.
Then he fell asleep to be woken by the complainer who was crying and in
a hysterical state. She told him that
she had fallen asleep and had woken up to find his uncle having sex with
her. The boyfriend was furious. He telephoned his mother and his aunt and on
the following morning contacted the police.
He confirmed that when he and his girlfriend had sexual intercourse he
always took the precaution of wearing a condom.
[5] There
was evidence that the complainer's boyfriend sent her the text message at 3.20 am
on the Sunday morning and evidence from a police officer of the distressed
state of the complainer when she visited the boyfriend's mother's house at
about 12.30 pm on that day.
The Crown's submission
[6] The
Advocate Depute submitted that, the fact of sexual intercourse not being in
dispute, there was sufficient corroboration of the complainer's account from
which the jury could infer both that the complainer did not consent because she
was asleep and that the accused had the necessary mens rea for rape. In what he presented as a fall-back to his
primary position that the complainer's distress alone was sufficient
corroboration he founded on the following evidence:
(i) the quantity of alcohol consumed by the
complainer before the sexual incident;
(ii) the timing of the incident, at some time
after 3.20 am on the Sunday morning;
(iii) more generally the extent of the drinking
which had occurred late at night causing the parties involved to fall asleep:
the accused in his police interview said that he had fallen asleep on the sofa
before the sexual incident and the complainer's boyfriend had fallen asleep as
soon as he got to his mother's house;
(iv) the complainer's distress shortly after
the incident and the next morning;
(v) the complainer had left behind her
mobile phone, which suggested that she left in a hurry;
(vi) the evidence, which the Advocate Depute
submitted was particularly significant, that the complainer and her boyfriend
always engaged in "safe sex" while on this occasion the sexual intercourse was
unprotected;
(vii) the age gap between the complainer and the
accused;
(viii) the fact that the accused was the uncle of
the complainer's boyfriend; and
(ix) the evidence that, while the accused had
flirted with the complainer in the past, there had been no prior history of
sexual intercourse between them.
These, he submitted, supported or confirmed the
complainer's evidence that she did not consent because she was asleep. If she had been asleep, that would have been
apparent to the accused who would either have known that he did not have her
consent or have been uncaring whether or not he had that consent when he had
sexual intercourse with her.
[7] The
Advocate Depute also advanced as his primary submission the more ambitious
proposition that I should extend the existing law by holding that the evidence
of the complainer's distress alone was sufficient to corroborate her evidence
that she was asleep when the sexual encounter occurred. Her being asleep, he submitted, established
both that she did not consent and that the accused had the necessary mens rea. He referred me to McKearney v H M Advocate 2004 SLT 739, Cinci v H M Advocate 2004 SLT 748,
Fox v H M Advocate 1998 SLT 335, Yates v H M Advocate 1977 SLT (Notes) 42, Gracey v H M Advocate 1987
SCCR 260, Smith v Lees 1997 SCCR 139, Lord
Advocate's Reference (No 1 of 2001) 2002 SLT 466, Spendiff v H M Advocate
2005 SCCR 522, Wright v H M Advocate 2005 SCCR 780, Gordon v H M Advocate 2004 SCCR 641 and
RWP v H M Advocate 2005 SCCR 764.
[8] In
summary, the Advocate Depute observed that the definition of the crime of rape
had been altered by the Court in Lord
Advocate's Reference (No 1 of 2001) by removing the need for the Crown to
establish the use of force to overcome the will of a complainer but that the
Court had upheld the rule that evidence from third parties of a complainer's
distress shortly after the event could corroborate her lack of consent and the
use of force to overcome her will: Yates v H M Advocate, Gracey v H M Advocate and
Smith v Lees. That being the case,
there was no logical reason why evidence of such distress could not corroborate
a complainer's account that she did not consent because she was asleep and thus
also establish the mens rea of the
accused. He referred to the Scottish Law
Commission's Discussion Paper, "Rape and Other Sexual Offences" (DP No. 131) in
which the Commission discussed corroboration by distress ( in Part 7) and
stated (at paragraph 7.32):
"If de recenti distress can
corroborate allegations of force and therefore absence of consent and the
inference of the accused's mens rea, it is difficult to see how it cannot
corroborate the complainer's evidence that she was incapable of consenting
(because she was asleep or insensible through drink or drugs) or had expressly
refused consent and the consequent inference that the accused knew that she was
not consenting when he had sexual intercourse with her".
The Advocate Depute did not seek a determination that
distress corroborated an express refusal of consent; he invited me to extend
the law by holding that distress by itself was capable of corroborating a
complainer's account that she was asleep and thereby incapable of consent.
The defence submission
[9] Mr Moir
submitted that while there was evidence which a jury could interpret in a way
which would corroborate the lack of consent of the complainer, there was not
sufficient evidence of the accused's mens
rea. Evidence of distress, the use
of prophylactics in the complainer's relationship with her boyfriend but not on
this occasion, and the absence of any prior sexual relationship between the
complainer and the accused might support the absence of consent but did not
tell anything about the state of mind of the accused. He analysed each of the other circumstances
upon which the Crown relied as corroboration and submitted that individually
and together they lacked the cogency of the evidence in cases such as Spendiff and Wright to allow the jury to treat them as confirming or supporting
the complainer's contention that she was asleep.
[10] Mr Moir
invited me to reject the Crown's primary position. He submitted that it was wrong to assume that
the law was based entirely on logic so that if the co-existence of two rules
was illogical, they could not both be the law.
He accepted that the law as it stands is that, where a woman alleges a
rape involving the use of force and there is separate corroborated evidence
that sexual intercourse has occurred, evidence of her distress can corroborate
both the absence of consent and the use of force: Yates and Smith v Lees.
But he submitted that as a matter of policy the law had drawn the line
there and that there were a number of dicta to demonstrate that: McKearney, Cinci and Spendiff. The Crown were seeking to extend the law
beyond the existing rule that evidence of distress could corroborate a
complainer's account of a distressing event (Smith v Lees) to use such
evidence to establish the mens rea of
the accused by corroborating the complainer's account that she was asleep. While that may be logical, it was not the
law.
Discussion
[11] I was
satisfied that there was a case to answer having regard to the evidence
summarised in the Crown's fall-back position.
When considering a section 97 submission the court has to decide
whether the Crown evidence taken at its highest is legally sufficient to allow
a properly directed jury to convict the accused: Renton & Brown para 18.75.1. In other words, the question at this stage is
not whether the evidence is to be accepted, but whether there is no evidence
which if accepted would entitle the jury to convict: Williamson
v Wither 1981 SCCR 214.
[12] In Fox v
H M Advocate the Court made it clear that for circumstantial evidence to be
available as corroboration it had to be capable of supporting or confirming
direct evidence of an essential fact or essential facts. It was the task of the jury to decide whether
they accepted the direct evidence and whether they interpreted the potentially
corroborative evidence as supporting or confirming that direct evidence. In that case both Lord Kirkwood and Lord Gill
drew a distinction between evidence which was capable of supporting and
confirming the direct evidence and evidence which was merely consistent with
the direct evidence (p.137 E-F and p.147 C-D respectively). They both referred to Lord McCluskey's
opinion in Smith v Lees (at p.174 C-D) where he stated
that evidence which was merely consistent with the victim's story but shed no
light on the criminal event could not amount to corroboration. Lord Coulsfield in Fox, while demurring to the idea that each source of circumstantial
evidence required to be incriminating in itself, stated that the proper
approach, set out in Hume's Commentaries (pp.382-383), was to look for a
concurrence of testimonies (p.183F). It
appears from those opinions in Fox that
while circumstantial evidence can be corroborative where it is not more
consistent with the direct evidence led by the Crown than with a competing
account by the accused, there must be more than mere consistency. The potentially corroborative circumstantial
evidence must be capable of pointing to the essential fact or facts and thus of
supporting or confirming the direct evidence on those facts.
[13] I
considered that the nine pieces of evidence which I have listed in paragraph 6
above were in combination capable of corroborating the complainer's account
that she did not consent to sexual intercourse because she was asleep and that
the accused must have been aware that she did not consent or was at the very
least uncaring as to whether he had her consent or not. In particular items (iv) and (vi) to (ix)
could support her account that she did not consent and items (i) to (v) could
support her evidence that she was asleep when the sexual encounter began and
when the accused penetrated her. While
some of the items listed, and in particular items (iii) and (v) might carry
very little weight, the question of the weight to be attached to individual
pieces of evidence was one for the jury, who were to be directed to consider
all the evidence. On that basis I
repelled the submission of no case to answer.
[14] I note
that the Court has in several cases accepted evidence of distress as part of
the circumstantial evidence in a case which was capable of corroborating a
complainer's account that she was asleep when sexual intercourse occurred. In Fox
the Court found potential corroboration of the complainer's account that she
was asleep in circumstantial evidence other than distress (p.119 B-C). The Court in Spendiff also reached a similar conclusion (paragraph 22) but
opined that evidence of distress could be an important element in the totality
of circumstantial evidence in such cases from which the mens rea of rape could be inferred (paragraph 27). In Wright
v H M Advocate the Court, in
upholding a conviction of rape, held that there was sufficient circumstantial
evidence that the complainer was asleep, that she therefore had not consented
to sexual intercourse and by inevitable inference the accused must have known
that. In that case the circumstantial
evidence to support the complainer's account was that she retired to bed in the
early evening feeling unwell and took medication and alcohol. Thereafter the blinds in her bedroom remained
closed and the room was dark. The
complainer was wearing a night gown and the incident occurred after 11 pm. After the incident the complainer, who was
wearing her night gown and in considerable distress, went to a neighbour's
house, where her husband was, and asked him to come home quickly. The Court treated the evidence of the
complainer's distress as an important element of the whole picture.
[15] In many
cases in which a complainer gives evidence that she was asleep when sexual
intercourse occurred there will be circumstantial evidence such as the time of
day when the event occurred and her prior behaviour, sometimes including the
ingestion of drink or drugs, which together with distress may be capable of
creating a picture from which a jury can properly infer that she was asleep and
that the accused had the necessary mens
rea. It is in my opinion unlikely
that there will be many cases where the only independent evidence available to
the Crown is evidence of distress.
[16] It is
not necessary for me to decide whether distress alone is capable of supporting
or confirming a complainer's account that she was asleep. While the Scottish Law Commission in their
discussion of the issue relied on logic to reason from the legal rule in the
context of forcible rape (in Yates and
Smith v Lees) that if distress corroborates the broad proposition of
force, it should also be available to corroborate sleep and express refusals of
consent, logic may not hold the answer, as Mr Moir submitted. His submission put me in mind of the
celebrated statement of Justice Oliver Wendell Holmes (in his first lecture in
"The Common Law") that "the life of the law has not been logic: it has been
experience".
[17] The
Crown, correctly, did not contend that distress could corroborate all of a
complainer's account of a sexual incident.
The law sets limits on what distress can corroborate and the Court has
held that it could not support or confirm evidence that a particular form of
sexual activity had taken place: Smith v Lees at p.155E. If logic were to take the law from the
position in Yates that distress can
corroborate the broad proposition of force to a position where distress on its
own could corroborate evidence of sleep, it might also take it to the position
that distress could corroborate a complainer's evidence of an express refusal
of consent. But in some cases where a
complainer alleges that she expressly refused consent there may be the danger
of "a series of mixed messages", to which Lord Marnoch referred in his
dissenting opinion in Lord Advocate's
Reference (No 1 of 2001) at p.479 A-B, which may make it very difficult to
infer the state of mind of the accused. Even in a case in which there is no evidence of mixed messages, I
find it difficult to see how independent evidence of a complainer's distress,
which is evidence that a distressing event has occurred, can on its own support
or confirm a complainer's evidence so that a jury could be satisfied beyond
reasonable doubt that she had expressed her lack of consent in a way which
would have given the accused the requisite knowledge for the mens rea of rape.
[18] I have
noted in paragraph 12 above that several analyses of corroboration draw a
distinction between evidence which is merely consistent with other evidence and
evidence which can support or confirm the other evidence. That distinction enables the court to
determine the boundaries of the corroborative potential of evidence in the
light of experience and thus preserve the role of corroboration in our law as a
protection of an accused person. Those
boundaries should be determined in cases in which the particular issue arises
for determination. I therefore leave the
issue which the Crown has raised to be determined in a case where it is
necessary to do so in order to do justice.
