Appellant: Shead, M C Mackenzie; Drummond Miller

Respondent: Bell QC, AD; Crown Agent

26 May 2009

[1] On 24 January 2007 at the High Court in Edinburgh the appellant was found guilty of a charge which, after certain deletions made by the Advocate depute, was in the following terms:

"on 4 and 5 May 2005 at ..., Jedburgh you did assault [SM], residing there, and did enter her bed, place your hands inside her clothing, pull her onto a bed, sit on top of her and hold her down, seize hold of her by the head and forcibly kiss her on the mouth, force your private member into her mouth, attempt to kiss her, remove her clothing, force her legs apart, all to her injury and did rape her".

He has appealed against this conviction.

[2] The circumstances surrounding the alleged offence and an outline of the evidence led can be found in the trial judge's report.

[3] The first ground of appeal is that there was insufficient evidence to entitle the jury to find the appellant guilty of rape. This ground is essentially mirrored in ground 3, where it is claimed that the trial judge misdirected the jury insofar as he suggested there was sufficient evidence to convict the appellant. In summary the submission made by counsel for the appellant was that, although there was no dispute that sexual intercourse had taken place, there was no sufficient corroborative evidence (a) of lack of consent or (b) of the appellant having had the necessary mens rea for rape.

[4] As to the first of these matters, there was clear evidence from the complainer that she did not consent. Further, having considered, from the available transcript, the whole terms of her evidence, we are of the opinion that, although there were, as was pointed out, certain inconsistencies within it, it was nevertheless open to the jury to take from her evidence, at its highest, that the sexual intercourse in question was forced upon her. She spoke inter alia of leaving her bedroom after the appellant appeared uninvited, and of remaining in the toilet for half an hour. However on her return to her apparently empty bedroom, the appellant reappeared. She described the appellant taking hold of her, including taking hold of her face. She spoke of him removing her lower clothing and turning her round, making her put his penis in her mouth. She said that he then managed to manoeuvre her so that he was on top of her having sexual intercourse with her. She said that she tried to scream but nothing came out, and that she couldn't move. According to the trial judge she said in evidence in chief that she tried to resist (although the transcript is unclear). Although in cross-examination she agreed that she did not scream and did not fight back, she also agreed with a series of questions which suggested that the appellant had gripped her by placing the crook of his finger and thumb towards her chin area and pressing in "with quite an effect and stopping me speaking". In re-examination she said inter alia "He just forced himself on us" and "[He] held me down and forced himself". When asked in examination in chief whether she noticed any physical effects, she said that she had bruising, and there was blood on the bed sheets. The bruising was on the side of her hip and on her inner thigh, and had not been present before the incident. It was, we consider, plainly open to the jury to infer from that passage that her evidence was that this bruising was caused in the course of the incident.

[5] There was, further, independent evidence which, we consider, was capable of corroborating that account, and in particular the fact that sexual intercourse was not with the complainer's consent. The complainer's mother gave evidence to the effect that the complainer had been sufficiently concerned about further potential advances by the appellant that she had specifically arranged with her mother, about two days before, to have a word with him about it. The complainer's mother also spoke to having seen quite a few bruises on the complainer's inner thigh and side a few days later, although they were starting to fade. Another witness, SP, also saw bruising at the top of the thigh and near the hip a few days after the incident. In addition evidence was led of an interview between the appellant and police officers in which the appellant himself accepted he had a few bruises on his own legs the next morning. Although he spoke inter alia of it having been "rough sex", it was open to the jury to take the view that he offered no reasonable explanation as to how he could be thus bruised if the sexual intercourse had been entirely consensual.

[6] As to the question of mens rea, if, as we have held, there was sufficient evidence of intercourse having been forced upon the complainer, it was (as was accepted before us) plainly open to the jury to draw the necessary inference. In addition there was evidence from the complainer's mother that shortly before the incident she had, as arranged with her daughter, warned off the appellant, explaining that the complainer had no feelings for him.

[7] In all the circumstances we have come to the view that it cannot be said that there was insufficient evidence, and grounds 1 and 3 fall to be rejected.

[8] Ground of appeal 2, also argued on behalf of the appellant, is to the effect that there was insufficient evidence to support the whole terms of the libel in respect of which the jury convicted the appellant. It is enough to say in this respect that it was, in our view, open to the jury to conclude, from the whole terms of the complainer's testimony, that there was evidence to support all of the averments in the charge (as amended).

[9] The fourth ground of appeal is that no reasonable jury properly directed could have returned a verdict of guilty having regard to the nature of the evidence on which the Crown relied. It was submitted, in particular, that the inherent implausibility of the complainer's evidence was such that it could not properly have been relied on to establish the guilt of the appellant beyond reasonable doubt. Reference was made inter alia to the fact that the complainer had not indicated to the appellant verbally at the time that she was not consenting, and to the fact that there was no clear evidence that she had resisted physically. She had not screamed or otherwise informed her mother in any way that night what had happened, despite the fact that her mother was in the house. She had continued to associate with the appellant in the following week, in particular at (and immediately following) the Jedburgh Sevens three days later. Reference was made to AJE v HMA 2002 SCCR 341.

[10] It is certainly true that a number of aspects of the complainer's evidence would require to have been very carefully considered by the jury. We remind ourselves, however, that the test is not what we ourselves would have made of it, but whether we can be satisfied that no reasonable jury could have convicted. We are quite unable to agree with the submission which was made to us that we are in a better position than was the jury to assess the evidence, having, as we do, only the printed word, and not having had the benefit of seeing and hearing how the complainer and others gave evidence from the witness box. It is also important, we consider, to remember that what the jury were required to judge were the actions and reactions not of a mature, confident adult but of a sixteen year old girl who, on the evidence, had previously been sexually abused by a third party. Against that background it was her evidence that when faced with the advances of the appellant, who was thirty nine, she essentially "froze". When asked why she hadn't said anything to her mother she said "... well in my head I was so shocked about what had happened. I was petrified of her reaction. I didn't know what she would do and how she would react to it". There was evidence that the outing to the Jedburgh Sevens, which was in the company of others, had been arranged prior to the incident in question, and also some evidence that the complainer had stormed out of the appellant's company that evening. There was no evidence of any further association. In addition, it was open to the jury to consider all the other evidence already referred to which was capable of affording corroboration of the complainer's account. In these circumstances, we have come to the clear view that we cannot say, any more than could the trial judge who heard and saw the witnesses, that the complainer's behaviour was so inherently implausible, or the nature of the evidence on which the Crown relied such, as to render the jury's verdict one which no reasonable jury could have returned.

[11] In the whole circumstances the appeal is refused.