APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Emslie Lady Dorrian	[2011] HCJAC 125 Appeal No: XC675/10 OPINION of LORD BONOMY in NOTE OF APPEAL AGAINST CONVICTION by D S Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: D. Moggach; Woodward Lawson, Aberdeen

Respondent: A. Di Rollo, A.D.; Crown Agent

14 December 2011

Background

[1] On 26 August 2010 the appellant was convicted at the High Court in Edinburgh on the following charge:

"On 1 March 2010 at ... you...did assault the complainer, c/o Grampian Police, Queen Street, Aberdeen and seize hold of her upper clothing, rip her bra, push her on the body, cause her to fall to the ground, forcibly remove her trousers and pants, lick her private parts, touch her private parts with your fingers and private member, touch her hinder parts with your fingers and private member, induce her to take your private member in her mouth, lie on top of her and you did rape her all to her injury".

The charge had been amended in certain respects in the course of the trial. From the final amended form, the jury deleted the words "top and" between the words "rip" and "bra" and the libel "spit on her private parts".

[2] The appellant challenges his conviction on five grounds, in each of which it is contended that the judge presiding over the trial failed to give any directions or adequate directions in relation to particular matters arising in the trial. Although each relates on the face of it to a discrete element, grounds 2 to 5 are related in respect that they each have a bearing on the issue of consent and the appellant's awareness of lack of consent. I shall therefore address each of the grounds individually and then, in the event that misdirection is established, consider whether any misdirection individually or in combination with others has given rise to a miscarriage of justice.

The Evidence
[3] The evidence in the case disclosed that the appellant and the complainer had been in a long-term intermittent relationship. They had cohabited at various addresses. The relationship had been a stormy one. Despite that, and also an earlier allegation of forcible intercourse, the complainer continued to associate and cohabit with the appellant. On the date in the charge the complainer had been out socialising with friends and had been drinking throughout the day. The appellant had been at work and had gone for a few drinks thereafter. The complainer returned to the flat where they were then cohabiting at about 10pm. The appellant was already there. There was a quarrel between them which became violent. The appellant maintained that the quarrel arose out of the complainer being upset about the appellant having exchanged text messages with a friend on the subject of attractive barmaids in the premises where they had been drinking. The complainer maintained that they had quarrelled because she wanted him to leave her flat since his presence there had given rise to a complication over her entitlement to housing benefit.

[4] There was then what the judge describes as "a curious development"; the appellant was struck on the head with a hammer. The complainer maintained that the appellant hit himself and then made her pick up the hammer so that her fingerprints would be on it. The appellant maintained that the complainer had hit him on the head with the hammer.

[5] There was no dispute that the couple had intercourse. The complainer maintained that this was against her wishes. The appellant in his police statement maintained that it was consensual and that the quarrel had only happened thereafter on account of the complainer's jealous reaction to the text message exchange referred to above.

[6] Neighbours who had heard the row between the parties became aware of the complainer in the stairwell of the flats. She was in an extremely distressed condition and maintained that she had been raped by the appellant. She had suffered certain fairly superficial bruising, but her brassiere had been badly ripped where the cups joined and at the side. A neighbour took the complainer into her flat and, on hearing her account, insisted that the police be called. They attended and forced open the door of the complainer's flat to find that the appellant had left via an open window to the back garden. He had apparently driven off in his vehicle. He was later found sitting in his vehicle in a car park on the edge of the city. He was taken to the police office and there made a full statement. He remained highly distressed for some time.

Ground One

[7] In the first ground of appeal the appellant claims that the trial judge failed to give a direction to the jury about prior inconsistent statements and the limited use to which they can be put, and that such a direction was required since a prior inconsistent statement of the complainer was deployed in cross-examining her. In fact, when challenged, the complainer had acknowledged that she had made the earlier statement and that it was in fact the truth. In it she said that she had had sexual intercourse with the appellant the night before the alleged rape. In her evidence-in-chief, on the other hand, she said that she and the appellant hadn't slept together for months. The submission of Mr Moggach, counsel for the appellant, on this ground was based principally on the opinion of the Lord Justice Clerk (Gill) in Niblock v HM Advocate [2010] HCJAC 21, 2010 SCCR 337 at paragraph [17] where he said:

"Certain other provisions in the 1995 Act provide for situations in which a prior statement of a witness may be referred to and, in that event, what the evidential significance of it will be (cf. ss 259, 263 and 271M). In my opinion, in any such case the presiding judge or sheriff should direct the jury specifically on these matters".

[8] While that is undoubtedly the case in a situation where the witness adheres to the evidence given in spite of being faced with the contradictory terms of the statement and the jury have to be advised that the statement cannot be substituted for the witness's oral evidence, the position is different where the witness departs from her original oral evidence and accepts the accuracy of the prior statement. The jury then have two versions given orally in court between which they may choose. The statement may have acted as an aide memoir which prompted the witness to change her evidence or may have become a statement adopted by the witness as her evidence on oath in terms of section 260 of the Criminal Procedure (Scotland) Act 1995 or the circumstances outlined in the case of Jamieson v HM Advocate (No 2) 1994 JC 251, 1995 SLT 666, 1994 SCCR 610. However, I doubt whether, in general, a jury would be enlightened or assisted by detailed reference in the charge to the various technical possibilities. The most helpful thing any judge can do in directing the jury in such a situation is to identify the point in issue. There was no suggestion in Mr Moggach's submission that there was any part of the statement which was not spoken to in evidence and which the jury might wrongly have taken to be the evidence of the witness. In this case, the point in issue was not the narrow one of whether comparison of the statement with the oral evidence would assist the jury in deciding whether or not to accept the oral evidence, but rather the broader question of whether the oral evidence of the witness, or any part of it, was credible and reliable.

[9] The question therefore comes to be whether the trial judge's brief directions on the assessment of evidence adequately addressed the issues of credibility and reliability of evidence. The judge's directions on those matters were as follows:

"Well, basically ladies and gentlemen, it is for you to review and to assess the evidence. So it's for you to recall the witnesses, what it was they said and how they said it. Whether their testimony seemed credible and reliable or otherwise and what the evidence given appeared to amount to. So it's for you to assess whether a witness appeared to be telling the truth or not, or was speaking to an agenda of his or her own. Now that is not a particularly easy task in the context of this case, where we appear to be dealing with a couple in a stormy, volatile relationship where tempers appear often to have run high and your task was not helped either by the way in which the complainer, gave her evidence. No doubt she was trying her best, but you may have found that parts of her testimony indistinct and confusing. No doubt the main thrust of what she had to say was plain enough and it may well be that you would want to look at the facts and circumstances outlined in the evidence before accepting some of what she appeared to say. So that's your principal task ladies and gentlemen to assess and evaluate the evidence".

While the judge did not in the traditional way identify the differences between reliability and credibility, nor state specifically that unreliable and incredible evidence should be laid aside, and did not refer to the various factors, such as demeanour, which the jury are entitled to have regard to in evaluating evidence, he did deal separately with, on the one hand, the truthfulness of evidence and, on the other, what he described as "parts of her testimony indistinct and confusing", which was a reference to reliability. He also identified the nature of the relationship as an important factor in evaluating the evidence, and stressed the importance of looking at the whole evidence before deciding to accept some of what the complainer appeared to say. As the Advocate depute pointed out, in a not dissimilar situation in Munro v HM Advocate [2010] HCJAC 78 at paragraph 23, where reference to her statement prompted the witness's recollection and caused her to change her position, Lord Carloway, in delivering the opinion of the court, stated that there was no need for a specific direction on the point and a direction to the jury on taking inconsistencies into account was sufficient. In my opinion it would be plain to the jury from the terms of these directions that inconsistencies in the evidence of the complainer were to be taken into account by them in determining the credibility and reliability of her evidence and that they should be taken into account in the context of the whole evidence in the case. The specific direction was given that only then should they decide whether to accept "some of what she appeared to say". I therefore conclude that there was no misdirection through omission in relation to the credibility and reliability of the evidence of the complainer as a result of the absence of a specific direction relating to the treatment of prior inconsistent statements.

Ground Two
[10] In the second ground of appeal the appellant contends that the trial judge failed to give directions to the jury about de recenti statements, and as a consequence failed to direct the jury that what the complainer had said to Crown witness S W about the appellant raping her could not corroborate her account in the witness box. The charge is indeed silent on the subject of de recenti statements.

[11] It is convenient at this point to quote at some length from the relevant part of the charge since the following passage also has a bearing on ground 5. In summarising the Crown case, the trial judge said this:

"The starting point from the Crown's point of view is, of course, the complainer. If you don't accept what she told you, particularly in relation to consent, then that's an end of the matter, you would have to acquit. If you do accept her account of the intercourse being forcible and against her wishes, there's certainly evidence to support or corroborate her. There's the ripped bra for example and there's also the neighbour's evidence of the complainer's extreme distress immediately after she ran into the stairwell. On the other hand, there's also evidence from the neighbours that the row in No 26A had been going on for sometime and involved a lot of violent argument back and forth before the complainer came out. There's also the extraordinary incident with the hammer. Whatever the truth of that, one can just imagine the commotion likely to be going on at the time. Distress can afford an element of corroboration if it appears to be directly linked to the allegation, in this case, the forced sex, rather than to something else like the violent and apparently physical argument that had been going on in the flat. Again, from the Crown point of view, there is some bruising and scratching on the body of the complainer which could be related to a forcible sex act. I think to be distinguished from the grazing and so on on her leg, which appears to have been caused by the fall down the stairs and there's also, and the advocate depute rightly places some stress on this, the dramatic flight of the accused which I'll mention again later. Basically, it is for you to consider the overall situation and to decide whether guilt has been brought home to the accused to the necessary standard".

[12] In his submission in support of this ground of appeal Mr Moggach relied upon Dyer v HM Advocate [2009] HCJAC 7, 2009 SCCR 194 at paragraph 22. In response the Advocate depute explained that the Crown had not relied upon the de recenti statement in addressing the jury and no issue had been made of it in the course of the trial. That was consistent with what was said in Renton & Brown at paragraph 18 - 79.3 about a direction being necessary where evidence of a de recenti statement is relied on by the Crown as evidence of the res gestae. The Advocate depute also relied on another passage in the charge where, in the context of directing the jury about corroboration, the trial judge said:

"Now not every detail mentioned in the charge has to be corroborated but the main allegations have to be. So no matter how credible and reliable you might find the complainer's account to be, her say so alone won't do. There has to be other supporting testimony or supporting facts and circumstances".

[13] Whether to give a specific direction about a de recenti statement does not fall to be determined according to reliance upon it by one or other party in the presentation of the case. It depends very much on what the evidence was and the context in which the statement was made. Such a statement is commonly associated with a display of distress shortly after the incident occurred. At paragraph 22 of Dyer, the Lord Justice General, in delivering the opinion of the court, indicated that a direction would generally be required in such a case when he said:

"When a trial judge directs a jury that it is open to them to find corroboration of a complainer's testimony to the effect that she did not consent to sexual intercourse in evidence from an independent source that the complainer was displaying distress shortly after the event, it would also be for the trial judge to direct them that corroboration could not be found in anything that the complainer may have said at the time when she was distressed. If there was evidence as to what a complainer said to a confidante at the time, one would expect a trial judge to direct the jury on the evidential significance of de recenti statements".

It is entirely understandable that it should be so. It is generally considered appropriate to explain to juries why distress displayed by a complainer, but recounted to the court by a witness, is evidence from a source independent of the complainer and can thus corroborate her evidence in certain respects. Similarly it is appropriate to explain the distinction between the fact that something was said and the manner in which it was said as part of the complainer's display of distress on the one hand, and the contents of the statement as evidence of the physical acts which gave rise to the distress on the other. The source of the contents of the statement is the complainer alone. What she said at the time about what happened to her cannot provide corroboration of her evidence to the same effect, since she is the single source of both. Since there was evidence of the complainer being in a highly distressed state when she made the statement to S W about having been raped, I do not consider that the direction given in the course of dealing with corroboration that "her say so alone won't do" was sufficient. The jury should have been directed specifically that the evidence of the facts contained in the de recenti statement could not corroborate the complainer's evidence of what the appellant did to her, but the very fact that it was made and how it was made were elements to be taken into account in assessing the credibility and reliability of the complainer and also in assessing whether the complainer's distress was caused by an attack upon her against her will.

Ground Three
[14] In the third ground of appeal the appellant complains of the trial judge's failure to direct the jury that any distress in the case had to be spontaneous and genuine. Mr Moggach submitted that this was particularly so since there had been different descriptions of her demeanour. The matter was further complicated by the evidence given by Police Sergeant Lisa Lewis about the two occasions that she saw the complainer. When she had first looked into the flat of the neighbour, S W, the complainer was "quiet and subdued...talking to the other officers...looked vulnerable". When she looked in again 10 to 15 minutes later, the complainer was "crying and tearful"; she had not been tearful or crying the first time. It will be seen from the passage of the charge quoted above that the trial judge mentioned the evidence given by S W of the complainer's "extreme distress". Mr Moggach advised us that she described the complainer as "covered in tears", "shaking like a leaf", and said that "her voice was totally quivering". It was his contention that in these circumstances more needed to be said about the need for the Crown to prove that the distress was spontaneous and genuine.

[15] In response the Advocate depute submitted that the directions given were adequate in the circumstances. The issue for the jury was not whether the distress was genuine but whether it had been caused by an attack upon her against her will. The competing explanation was that she had been upset by learning of the terms of the inappropriate text messages. When given the opportunity to make further comment, Mr Moggach conceded that the focus in the conduct of the case had been principally upon the cause of the distress, but submitted that the question whether it was spontaneous and genuine had a bearing on determination of that issue. His submission was advanced under reference to Moore v HM Advocate 1990 SCCR 586 (Lord Justice General Hope at page 591C) and Gracey v HM Advocate 1987 SCCR 260 (Lord Justice Clerk Ross at page 263).

[16] In my opinion, while it is clearly desirable that a trial judge should stress that distress can afford corroboration only where it is genuine and arises spontaneously from the unwanted conduct of the assailant, the crucial issue is the causal link. Implicit in a direction that distress must be caused by the conduct libelled before it can provide corroboration is the requirement that it must be genuine and spontaneous. Bearing in mind that the complainer was not cross-examined on the basis that her distress was feigned in some way, but in relation to the cause of that distress, I consider that the direction given by the trial judge that distress can afford corroboration "if it appears to be directly linked to the allegation, in this case, of forced sex, rather than to something else like violent and apparent physical argument that had been going on in the flat" was adequate. I do not consider that the jury could have been in any doubt that the distress required to be the result of the unwanted attack upon the complainer and not the result of something else including deception.

Ground Four
[17] The fourth ground of appeal relates to the absence from the charge of any reference to the special defence of consent. That special defence had been read to the jury at the start of the trial. In the submission of Mr Moggach the failure of the trial judge to give any directions about it may have created the belief in minds of jurors that it was not worthy of mention. As a consequence the jury might not have given due consideration to the appellant's position. The appellant's position had been set out in his police interview when he had told the police that he had consensual sexual intercourse with the complainer. The question of consent went to the very heart of the case. In his directions the trial judge had made mention of "matters central to the proof of the case" and had gone on to say:

"for example, whether the crime has been committed and if so, whether the accused has been shown to be responsible for it, then that evidence has to be corroborated, which means it has to come from more than one source. Now not every detail mentioned in the charge has to be corroborated but the main allegations have to be".

In Mr Moggach's submission, the issue of consent was a "matter central to the proof of the case". The jury might have thought that the appellant required to corroborate his position.

[18] The Advocate depute recognised that, in dealing with the nature of the crime of rape and the standard of proof in the context of a couple who have an ongoing sexual relationship, the trial judge's choice of language had not been ideal, particularly when he said:

"in such a situation just the same, it should be borne in mind that the claim of rape after sexual relations have taken place can be easy for the female to make and sometimes difficult for the male to rebut".

However she maintained that the charge, read as a whole, made it clear that the burden of proof was always, and only, on the Crown, that it was the Crown case that required corroboration, that any reasonable doubt should result in acquittal and that there was no onus on the appellant. These directions were repeated. In these circumstances, she submitted, the absence of any explicit direction about the purpose of a notice of special defence of consent did not amount to a misdirection. There was no doubt that the jury were aware that lack of consent and mens rea required to be proved as part of the Crown case. In support of her submissions she referred to various passages of the charge which were favourable to the appellant.

[19] I find there to be force in the Advocate depute's submission. Early in the charge, the trial judge directed the jury as follows:

"First and foremost, it is for the Crown to prove its case. There's a presumption of innocence in favour of an accused person such as D S. The burden of proving the case remains on the Crown throughout. There's never any burden on an accused person to establish his innocence so, it's for the Crown to prove its case and the way that you approach the evidence, is to presume an accused to be innocent until the contrary is proved to your satisfaction, if it ever is. The Crown has to prove its case to a certain standard and that's to your satisfaction beyond a reasonable doubt."

That set the scene, so far as onus and standard of proof were concerned, right at the outset of the charge. Later, after making the unfortunate remark referred to, the trial judge immediately directed the jury about the "high standard of proof of guilt before such a serious crime can be held to be established against an accused". By then he had directed them on two occasions that the Crown had to prove its case to their satisfaction beyond a reasonable doubt and that that was a high standard of proof. Between these two statements the judge had directed the jury in the passage particularly founded on by Mr Moggach, that the case could be proved only on the basis of evidence that they had heard, and continued:

"So you look to the evidence and the evidence alone and when it comes to matters central to the proof of the case, for example, whether the crime has been committed and if so, whether the accused has been shown to be responsible for it, then that evidence has to be corroborated, which means that it has to come from more than one source".

It was in that context that he went on to say:

"Now not every detail mentioned in the charge has to be corroborated but the main allegations have to be. So no matter how credible and reliable you might find the complainer's account to be, her say so alone won't do. There has to be other supporting testimony or supporting facts and circumstances".

He then summarised these directions as follows:

"It is for the Crown to prove its case. The burden of proof remains on the Crown throughout. There is a presumption of innocence in favour of an accused person such as D S. The Crown has to prove its case to your satisfaction beyond a reasonable doubt and that, as I have said, is quite a high standard of proof. It can do so in one way only, and that's on the basis of the evidence led and it's to the evidence alone that you look and for matters central to the proof of the case, then that evidence has to be corroborated, it has to come from more than one source".

[20] While I see force in the criticism of this aspect of the charge made by Lord Emslie and Lady Dorrian in respect that it is undoubtedly appropriate, and indeed desirable, that the jury should generally be reminded of the special defence read to them, should have its significance as a mere notice explained to them, and should be directed that it places no onus of proof on the accused, I nevertheless agree with the Advocate depute that the jury could have been in no doubt that the directions about the burden and standard of proof and corroboration related to obligations upon the Crown alone. In defining the crime of rape, the trial judge said this:

"Rape is committed by a man having sexual intercourse with a woman without her consent. The vagina of the woman has to be penetrated by the penis of the male. Force in achieving this is not necessary to constitute the crime, but lack of the woman's consent is. The male has to be aware that the woman is not consenting or has to be shown to be reckless that is uncaring as to whether she is consenting or not before the act can be a criminal one. Sexual intercourse between a consenting adult male and female is not criminal. It is the lack of consent and the male's awareness of this that renders the act a crime. Just because a male and female live together in a relationship that normally includes sexual relations doesn't exclude the possibility of rape. If the male insists on having sex against the will of his partner and he is aware of her non-consent. In such a situation just the same, it should be borne in mind that the claim of rape after sexual relations have taken place can be easy for the female to make and sometimes difficult for the male to rebute. This, of course, is why the law requires there to be a high standard of proof of guilt before such a serious crime can be held to be established against an accused...Generally then, before you can find the accused guilty of rape, you would have to find established first, that he had had sexual relations with the complainer, on the occasion mentioned and that's not disputed. Secondly, that this was against her wishes and without her consent and thirdly, that the accused was, or must have been aware of the lack of consent, and of course those last two elements are disputed".

Then towards the end of his charge, after referring to a number of points made in support of the defence, he said this:

"...bear in mind the cardinal rule, it's for the Crown to prove its case. If left in a reasonable doubt about the guilt of the accused, then he must be acquitted. In the event the accused did not give evidence in court, there is no obligation on him to do so. It is always for the Crown to prove its case. You must make no adverse inference against the accused for not giving evidence. In any event you may feel that he has made his position plain in his detailed police statement, subject to the qualification made, that this was not the statement on oath or subject to cross-examination as it would have been in court".

All of that has to be read in the context of the direction given by the trial judge when dealing with the appellant's police statement when he said:

"What you do with such a statement, and you have the transcript with you, is to consider it overall and if anything in it leaves you in a reasonable doubt about the guilt of the accused, then you give him the benefit of that. Once again consent, or the lack of it, is the crucial question".

When read as a whole, the charge does not in my opinion give rise to a risk that the jury might be misled into thinking that there was any onus upon the appellant to prove consent, far less to prove it by way of corroborated evidence. I also do not consider that the jury could have been in any doubt that the absence of consent and the appellant's awareness thereof were central issues for the Crown to prove.

Ground Five
[21] In the fifth and final ground of appeal the appellant contends that the trial judge failed to give the jury adequate directions about corroboration of the commission of the crime. Mr Moggach submitted that the jury should have been directed specifically that each individual element constituting the crime required to be corroborated. In giving general directions the trial judge had instructed the jury that matters central to the proof of the case, for example whether the crime had been committed and if so whether the accused had been shown to be responsible for it, had to be proved by evidence from more than one source. In defining rape he had identified three elements as requiring to be proved, viz that the parties had sexual relations, which was not disputed, that this was against the complainer's wishes and without her consent, and that the accused was or must have been aware of the lack of consent, these latter two elements being in dispute. He had earlier identified the same three issues in the passage which I have quoted above. That was likely to have led the jury to conclude that the various elements of the crime of rape could be established from a single source of evidence and that these elements could then be taken together to hold the crime established.

[22] In response the Advocate depute founded upon the passage of the charge which I quoted in dealing with ground two. That followed his discussion of the terms of the indictment and his direction that the starting point for the jury had to be the acceptance of the complainer's "account of the intercourse being forcible and against her wishes". He instructed the jury that, if that was accepted, there was evidence to support or corroborate her and set out what that evidence was. What required to be corroborated was her account of the intercourse (about which there was no dispute) being forcible and against her wishes. It was the position of the Advocate depute that in a case of forcible rape, such as this, the absence of consent and the appellant's awareness of the absence of consent were often corroborated by evidence of injury or clothing damage associated with distress. Indeed the High Court had now recognised distress as sufficient on its own in appropriate circumstances to establish lack of consent and, by inference, the appellant's awareness thereof - Spendiff v HM Advocate [2005] HCJAC 68, 2005 SCCR 522.

[23] In my opinion the various adminicles of evidence referred to by the trial judge in his charge, following his reference to the need for corroboration of the intercourse being forcible and against the complainer's will, were habile in the circumstances of this case to corroborate the absence of consent and the appellant's awareness thereof. The various items referred to were the ripped bra which had been damaged in two places, viz at the side and between the cups, the evidence from neighbours of a violent disturbance, the complainer's state of extreme distress as spoken to by S W, some bruising and scratching on the complainer's body, the incident with the hammer, and the flight of the appellant. It was made clear to the jury that they could not convict unless they accepted the evidence of the complainer and circumstantial evidence which was sufficient to corroborate, and to prove beyond reasonable doubt, that sexual intercourse was without her consent and that the appellant was aware of that. I therefore do not consider that the jury were misdirected in relation to corroboration of the commission of the crime.

Miscarriage of Justice
[24] While I acknowledge, as I have already indicated in discussing ground 4, that it would have been appropriate, and indeed desirable, for the trial judge to have referred to the notice of special defence and given specific directions about its significance and the fact that it imposed no onus on the appellant, and recognise also in relation to ground 5 that ideally he ought to have said a little more about the application of the rule about corroboration to each of the three elements of rape, in the event my finding of misdirection is confined to ground two. That relates to the absence of a direction that the de recenti statement of the complainer could not corroborate her account of the appellant's conduct. The question now is whether that has in this case resulted in a miscarriage of justice. In my opinion it has not. In the passage from the charge which I quoted when dealing with ground two the sheriff set out in short but clear compass the various elements which could provide corroboration of the issues in dispute in the case, namely the absence of consent and the appellant's awareness thereof. Although, as I have already said, a direction explaining the limited significance of a de recenti statement was appropriate and indeed desirable, the concentration by the trial judge on the elements which could provide corroboration was bound to have focused the attention of the jury on these elements. Had the trial judge made any reference to the de recenti statement, and then failed to explain its limited effect, the matter might have been different. However, the absence of any reference at all to the de recenti statement has in this case to be evaluated in the context of a strong Crown case based on the complainer's account, combined with damage to clothing, injury and extreme distress, in particular, all against the background that it was accepted that intercourse had taken place. Having regard to these factors, I do not consider that there was any prospect, far less a realistic possibility, that the desiderated direction would have resulted in a different verdict.

[25] I, therefore, move your Lordship and your Ladyship to refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Emslie Lady Dorrian	[2011] HCJAC 125 Appeal No: XC675/10 OPINION OF LORD EMSLIE in NOTE OF APPEAL AGAINST CONVICTION by D S Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: D. Moggach; Woodward Lawson, Aberdeen

Respondent: A Di Rollo, A.D.; Crown Agent

14 December 2011

[26] I am grateful to your Lordship for setting out the background to this appeal, and in that connection summarising the evidence which was led at the appellant's trial.

[27] As regards the first ground of appeal, I am inclined to agree with your Lordship that no material misdirection by the trial judge has been identified. It has to be said, however, that the trial judge's approach to the complainer's prior inconsistent statement was perhaps symptomatic of a general malaise affecting the whole of the charge. By way of illustration, normal directions on credibility, reliability and demeanour were absent; nothing was said as to the effect of partial or complete rejection of a witness's evidence; and in certain respects the guidance given on substantive matters was rather less than might be expected. Nevertheless, so far as this ground of appeal is concerned, I am not persuaded that the failing was sufficiently material to warrant a finding in the appellant's favour. Similarly, as regards the third ground of appeal, I am content to agree that that also lacks substance.

[28] Returning to the second ground of appeal, I share the concerns which your Lordship has expressed and, for the same reasons, conclude that the trial judge's failure to give any specific guidance as to the evidential value of the complainer's de recenti statement as she left her flat amounted to a misdirection in the circumstances of this case. The materiality of that misdirection is, however, diminished by the observation at p. 3 to the effect that "... (the complainer's) say so alone won't do", and by the fact that the de recenti statement did not feature among the potentially corroborative factors to which the trial judge drew attention at page 7.

[29] To my mind the issues raised by the remaining grounds of appeal are quite finely balanced. Starting with the fourth ground, it was clearly unsatisfactory, and a material departure from proper practice, for the trial judge to omit the normal guidance to the effect that the onus of disproving or overcoming a special defence lies upon the Crown. Where the special defence is one of consent, as in this case, it is realistically as much to do with the accused's subjective belief as with the actual state of mind of the complainer. It cannot therefore be disproved simply by showing that intercourse was de facto against the complainer's wishes. The mens rea of the accused must also be established, and in this respect it seems to me that grounds 4 and 5 arguably reflect different facets of the same complaint. Regrettably, the special defence was not directly addressed here at all, and at p.3 of the charge there was no explicit identification of the "... matters central to the proof of the case" which had to be corroborated by the Crown. A further questionable feature was the remark at p.4 - apparently intended to assist the appellant by highlighting the need for circumspection in a case of this kind - to the effect that an allegation of rape, while easily made, might sometimes be "... difficult for the male to rebut". On the other hand, as your Lordship has pointed out, the jury were advised (at p.2) that there was never any burden on an accused person to establish his innocence; (at pp.2, 3 and 9) that the appellant enjoyed a presumption of innocence, with the burden of proof being on the Crown throughout; (at pp.4 and 5) that both want of consent and the appellant's awareness of that would require to be established "... before you can find (him) guilty of rape"; and (at pp. 8 and 9) that if inter alia the appellant's account to the police of consensual intercourse raised a reasonable doubt as to his guilt, then he must have the benefit of that. On balance, albeit with some hesitation, I am persuaded that, when considered alongside the directions which were in fact given, the trial judge's failure to deal with the special defence in terms was not of sufficient materiality to constitute a misdirection in this case. Viewing the charge as a whole, in other words, the jury can have been in no doubt that the essential elements of the crime of rape were for the Crown to prove, and that no countervailing onus lay upon the appellant himself.

[30] Turning to the fifth ground of appeal, I accept that at pp. 3, 4, 5, 7 and 9 of his charge the trial judge gave directions which, taken together, confirmed that the "main allegations ... central to the proof of the case", including the complainer's lack of consent and the appellant's "... awareness of this", required to be corroborated. However, as regards the appellant's mens rea, the jury received only limited guidance as to where they might look for the corroborated proof which was essential to any conviction. To a lawyer, no doubt, Spendiff and other cases bear to vouch the proposition that independent evidence of a complainer's distress may potentially corroborate her account of force, and that proof of such force may in turn allow the requisite knowledge or recklessness on the part of the accused to be inferred. A jury, by contrast, may be expected to require some assistance in this area, and the question here is whether the trial judge went far enough in discussing (at pp. 7 and 9 in particular) the possible sources of corroboration for, or contradiction of, the complainer's account of intercourse, and oral sex, having been "forcible" or "forced". Distress, "the ripped bra" and "some bruising and scratching" were all mentioned in that specific context, and the trial judge then went on to add a reference to "the dramatic flight of the accused" before drawing attention to the appellant's own position as explained in the course of his police interview. Given that the complainer in this case was alleging forcible rape, and nothing short of that, I am ultimately persuaded (although again with hesitation) that the trial judge's directions on mens rea were adequate to enable the jury to consider the matter on a sound basis.

[31] A misdirection in the trial judge's charge having been identified, the next question is whether in all the circumstances a miscarriage of justice may be said to have occurred. In the recent case of Fraser v HMA 2011 SLT 515, Lord Hope (at para 47) appeared to suggest that some universal test for a "miscarriage of justice" might be achievable, but in that case only 'fresh evidence' and 'non-disclosure' appeals were specifically under discussion. No mention was made of other potential grounds of appeal such as misdirection, and furthermore it seems doubtful whether the McInnes test, as approved by the Supreme Court, could properly apply to grounds of appeal unconnected with the evidential merits of a given case. It is hard to see, for example, how the McInnes test, or any variant, could apply in appeals alleging bias or oppression, or in appeals based on procedural invalidity or delay. Nevertheless, in the context of an appeal where material misdirection of the jury is alleged, I am (like your Lordship) content to adopt and apply the McInnes test in deciding whether or not a miscarriage of justice can be said to have occurred. Is there, on that basis, a real/realistic possibility that, if proper directions had been given by the trial judge in his charge, the jury would have arrived at a different verdict? That test plainly sets a higher threshold for an appellant to achieve than the test previously set by the Lord Justice General for 'fresh evidence' appeals in Cameron v HMA 1991 JC 251, since the issue raised is whether the jury's verdict might actually have been different, as opposed to merely whether fresh evidence (or disclosed material or proper directions) would have been "... bound, or at least likely, to have had a material bearing upon, or a material part to play in, the jury's determination of a critical issue at the trial." In my view satisfaction of the Cameron test must logically precede satisfaction of the McInnes test in affected appeals, so although the two tests are obviously not the same the difference is simply that the McInnes test goes beyond the stage of deliberations and directs attention to the verdict reached.

[32] In this context I am, with the greatest respect, uncertain as to the significance of the comparisons drawn by Lord Hope, first (at para 25) between the major part of the "miscarriage of justice" test articulated in Cameron and the "threshold" criteria for the disclosure of documents by the Crown, and thereafter (at para 29) between the residue of the Cameron test and the full "miscarriage" test derived from McInnes. Nevertheless, as it seems to me, there is every reason to acknowledge the considerable attractions of the McInnes test in appropriate categories of appeal, and for present purposes to accept its application in appeals where misdirection of the jury are in issue. This approach has already been followed in recent 'misdirection' appeals such as Coubrough v HMA 2010 SCCR 473 and Singletons v HMA 2011 HCJAC 70, and (notwithstanding certain obiter doubts expressed in Black v HMA 2011 SCCR 87, with which I would respectfully disagree) it cannot be said that applying the McInnes test in this case would represent a material departure from the developing practice of the court.

[33] In the end it must always be a question of fact and degree, in the particular circumstances of an individual case, whether fresh evidence, or disclosed materials, or proper directions would have raised a real/realistic possibility that the jury would have arrived at a different verdict. In my judgment, agreeing with your Lordship, that test has not been met in the present case. It may reasonably be inferred that the jury accepted the complainer as a credible and reliable witness, notwithstanding her initial lie as to the date of her last sexual contact with the appellant. In addition to her own evidence, there was independent evidence of severe distress, bodily injuries and damage to clothing, all consistent with the use of force in a sexual context, and there was also evidence of the appellant having fled the scene before being found in a highly emotional state at the other side of town. There was, moreover, no dispute that intercourse had taken place at, or about, the time when sounds of an altercation were heard from within the flat. The only contrary evidence would seem to have been the appellant's own account, with which the jury were plainly unimpressed. In all the circumstances I agree with your Lordship that this was evidentially a strong case for the Crown. Significantly all of the unsatisfactory aspects of the charge, including the misdirection identified, were not positive, but negative, in the sense that they were in the nature of general omissions, and on balance I am not persuaded that they were, individually or in combination, of such materiality that a miscarriage of justice can be said to have resulted. Had fuller and more careful directions been given, in other words, there is in this case no reason to believe that the jury's verdict would have been any different.

[34] On the whole matter, therefore, I concur with your Lordship in holding that this appeal must be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Emslie Lady Dorrian	[2011] HCJAC 125 Appeal No: NO. XC675/10 OPINION of LADY DORRIAN in NOTE OF APPEAL AGAINST CONVICTION by D S Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: D. Moggach; Woodward Lawson, Aberdeen

Respondent: A Di Rollo, AD; Crown Agent

14 December 2011

[35] I am grateful to your Lordship in the chair for setting out the background to this appeal, the evidence relied upon and the nature of the grounds of appeal.

[36] The first ground of appeal relates to prior inconsistent statements. The complainer lied in court about when she had last slept with the accused, saying it had been months ago. Confronted with her police statement she had to admit that this was a lie and that they had had intercourse the night before the incident forming the subject matter of the trial. This was accordingly not an inconsistency but a lie. The trial judge directed the jury that they required to believe the complainer before they could convict (page 6) and told them that it was for them to assess the evidence, to determine whether testimony seemed credible and reliable or otherwise (page 1). Given the very limited use to which the statement seems to have been put, and the stark issue which arose, it is difficult to see what additional direction in this regard should have been given by the trial judge. The directions on assessing evidence in general and the effect of rejecting any piece of evidence undoubtedly could be fuller but, like your lordships, I am not persuaded that there was a misdirection of the kind suggested in the ground of appeal.

[37] As to the second ground, it was conceded that the trial judge had misdirected the jury in failing to direct them about the nature and effect of de recenti statements. This concession was well made: the complainer made a de recenti statement yet the trial judge gave no direction at all about this or about how such a statement might be used. The charge should have included a direction on this point in the way envisaged by your Lordship in the chair. It did not do so. However, the trial judge gave the jury specific directions on what could constitute corroboration in this case, namely the distress, the torn clothing and the accused's flight from the locus. In this context it is difficult to see that there was any possibility that the jury might have been misled into placing reliance on the de recenti statement as a source of corroboration.

[38] Ground three is that the judge's direction that "Distress can afford corroboration if it appears to be directly linked to the allegation, in this case forced sex, rather than to something else like a violent and apparently physical argument that had been going on in the flat." was inadequate and that he should also have directed the jury that the distress had to be genuine. In general such a direction might be expected to be given. However, one must look at the matter in the context of what were the issues at the trial. The issue relating to the distress was not whether it was genuine but whether it was related to sex without consent or to a row over text messages. Against a background where it is not disputed that the distress was genuine, the failure of the trial judge to give such a direction is not in my view a misdirection.

[39] Ground five asserts that the trial judge failed to give clear directions to the jury about the various elements of the crime of rape individually having to be proved by corroborated evidence. It is true that he did not do so. He did, however, direct the jury that the main allegations, matters central to the proof of the case, require to be proved by corroborated evidence. Immediately after this passage he gave them adequate directions on the essentials of the crime of rape, namely: "Rape is committed by a man having sexual intercourse with a woman without her consent...The male has to be aware that the woman is not consenting or has to be shown to be reckless, that is uncaring, as to whether she is consenting or not before the act can be a criminal one....It is the lack of consent and the male's awareness of this that renders the act a crime." He repeated these directions subsequently, saying "Generally then, before you could find the accused guilty of rape, you would have to find established first, that he had sexual relations with the complainer, KB, on the occasion mentioned and that's not disputed. Secondly, that this was against her wishes and without her consent and thirdly, that the accused was or must have been aware of the lack of consent and of course those last two elements are disputed." Elsewhere (p5/24 - 6/1) he poses the question "has lack of consent and awareness of it been established or not?" From these passages the jury would understand that the accused's awareness of lack of consent was an essential element in the crime and that it was one which required to be established by corroborated evidence.

[40] The trial judge noted that "Distress can afford an element of corroboration if it appears to be directly linked to the allegation, in this case the forced sex, rather than to something else.." He also referred to the "bruising and scratching which could be related to a forcible sex act.." and "..the dramatic flight of the accused". He had already made reference to her ripped underclothing. It is true that in introducing this passage in his charge he said "if you do accept her account of the intercourse being forcible and against her wishes there's certainly evidence to support or corroborate her", and made no specific mention of the accused's mens rea and corroboration of it. It is this feature which prompted ground of appeal five, the argument being that the trial judge should have made specific and separate mention of the evidence which was capable of providing corroboration for mens rea.

[41] It may be necessary in some cases for a judge to direct a jury not only as to the three essential elements of rape which require to be corroborated but also to make reference to the evidence which could or could not provide such corroboration. However, it must be noted that this was a case of forcible rape, in which the same elements were relied upon to prove that the intercourse was forcible, and thus against her will, and that the accused knew this. In Spendiff the court stated "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 as to lack of consent. The same elements are, on the analysis of Yates, then available to establish force and, necessarily by inference, that the accused had the mens rea of rape." The elements of corroboration referred to by the trial judge therefore went to both of these elements and in my view it was not necessary in the circumstances of this case for the court to go further and give directions of the kind suggested by counsel for the appellant.

[42] The remaining ground of appeal is that the trial judge failed to give directions to the jury about the special defence of consent and that the rule of corroboration did not apply to the appellant's evidence. In fact, the appellant did not give evidence but the crown led evidence of a mixed statement made by him in which he maintained that what occurred had been consensual. The trial judge did not explain the significance of a special defence nor did he explain to the jury that any evidence in support of the special defence did not require to be corroborated. The advocate depute pointed out that the trial judge had made repeated reference to the crown having to prove its case by corroborated evidence and also drew attention to the directions given regarding the statement made by the accused to the effect that the statement had to be considered overall and if anything in it left a reasonable doubt about the guilt of the accused then he should have the benefit of that. From this, it was argued, the jury could not have had any doubt that the burden of proof lay on the crown and that no burden lay on the defence. The advocate depute recognised that this argument had to be reconciled with the comment by the trial judge that "it should be borne in mind that the claim of rape after sexual relations have taken place, can be easy for the female to make and sometimes difficult for the male to rebut." In my view the complete absence of appropriate reference to, and directions about, the self defence constitutes a misdirection, particularly when taken with the rather unfortunate comment referred to above. To that extent, I regret that I am in disagreement with your Lordships.

[43] However, proceeding to apply the McInnes test, I do not consider that a miscarriage of justice has been suffered, on the basis of this misdirection alone or in combination with that referred to in paragraph 4 above. I do not think that there was in the circumstances of the case any risk that the jury might have been misled as to where the onus of proof lay, which was the argument advanced before us. The self defence related to what was the central issue in the case, namely consent. The directions of the trial judge as to the presumption of innocence and the burden of proof resting on the crown were clear and were each repeated several times. The jury were repeatedly told that the standard of proof which the crown had to meet was a high one. They were told in terms that "There's never any burden on an accused person to establish his innocence". They were also told as referred to elsewhere, that lack of consent was an essential part of the case which the crown had to establish. The whole tenor of the charge is that the jury required to examine the evidence in the case to ascertain whether the crown had proved its case, this being the "cardinal rule".

[44] I therefore concur with your Lordships that the appeal should be refused.