Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 102

XC634/13

Lord Eassie

Lady Paton

Lady Smith

OPINION OF THE COURT

delivered by LADY SMITH

in

APPEAL AGAINST CONVICTION

by

GAVIN LIVINGSTONE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Paterson, Solicitor Advocate;  Paterson Bell, Edinburgh

Respondent:  A Stewart QC, AD;  Crown Agent

3 October 2014

Introduction

[1]        The appellant was found guilty, at a sitting of the High Court at Paisley, on 20 September 2013, of four charges:  rape (charge 3), sexual assault with intent to rape (charge 5), rape (charge 7) and  charge 4, which was  libelled as a charge of rape, subject to deletions (see below). The complainer in charges 3, 4, and 5 was AD, a 16 year old girl.  The complainer in charge 7 was DMK, who was 19 years old.

[2]        The appellant appeals against conviction on two grounds.  The first is that the trial judge erred in refusing to uphold a submission of no case to answer in relation to charge 7:  Criminal Procedure (Scotland) Act 1995 sec 97.  The facts surrounding charge 7 are said to have been so different and so distant in time from those relating to the other charges that mutual corroboration (Moorov v HM Advocate 1930 JC 68) could not apply.  The second is that the verdict returned by the jury in relation to charge 4 did not, after the deletions that they made, make sense; it was perverse.

[3]        The appellant also appeals against sentence; the trial judge imposed an extended sentence of 13 years in which the custodial element was 10 years.

The charges and the jury’s verdicts

[4]        Charge 3 involved a libel that on one occasion between 1 May 2006 and 31 March 2007, the appellant had, whilst AD was asleep, penetrated her vagina with his fingers and then, when she woke, seized her by the hair, slapped her face, seized hold of her wrists, pushed her onto a mattress, lain on top of her and raped her.  The jury convicted the appellant in terms of that libel.

[5]        Charge 4 was a charge of rape.  It involved a libel extending to various occasions between 1 May 2006 and 31 March 2007 and alleged that the appellant:

“…..did assault AD…pull her hair, seize hold of her, bite her nipple until it bled, bite her body, slap her on her face, pull her hair, hold her down, touch her vagina whilst she was sleeping, sexually penetrate her vagina with (his) fingers whilst she was sleeping and…did penetrate her vagina with (his) penis without her consent and ..did thus rape her.”

The jury deleted the words “without her consent and …did thus rape her”. Their verdict was, accordingly, that the appellant:

“ …did assault AD..pull her hair, seize hold of her, bite her nipple until it bled, slap her on her face, pull her hair, hold her down, touch her vagina whilst she was sleeping, sexually penetrate her vagina with (his) fingers whilst she was sleeping and …did penetrate her vagina with (his) penis.”

[6]        Charge 5, after a deletion, involved a libel that, on a single occasion between 21 February 2007 and 31 March 2007, the appellant assaulted AD by throwing food across the room, seizing her mobile telephone and throwing it across the room, following her into a bedroom, lifting her up, throwing her onto a mattress, lying on top of her and attempting to remove her clothing, all with intent to rape her.  The jury convicted the appellant in terms of that libel.

[7]        Charge 7 involved a libel that on 8 September 2012, the appellant had assaulted DMK, slapped her on the face, seized hold of her hair, seized hold of her by the wrists, dragged her to a bedroom, pushed her onto a mattress, lain on top of her, slapped her, stroked her face and neck, repeatedly kissed her face, restrained her by the wrists, licked her face, seized hold of her ankles, pulled down her pyjamas and pants, forced her legs apart, rubbed her vagina with his hand, spat on his hand and rubbed her vagina, sexually penetrated her vagina with his fingers and penetrated her vagina with his penis, thus raping her, and thereafter masturbated in her presence.  The jury convicted the appellant in terms of that libel.

[8]        The events in all the charges took place in the appellant’s home.

The evidence

[9]        The appellant and AD were, at the time of the events described in charges 3,4 and 5, in a relationship;  it lasted for about a year and had begun about a month before the incident in charge 3.  They had met through their respective parents.  AD was sexually inexperienced when the relationship began.  The relationship involved consensual sexual intercourse.

[10]      In relation to charge 4, AD ‘s evidence was that the appellant would have intercourse with her following conduct as described in the charge and that, although she did not consent to intercourse, she frequently did not resist and it was possible that the appellant would not have known that she was not consenting.

[11]      Otherwise, her evidence supported the narrative of events set out in charges 3 and 5.

[12]      In relation to charge 7, there was no long term relationship involved.  DMK  contacted the appellant via a social networking site and they exchanged messages and telephone numbers.  DMK went to the appellant’s home on one occasion and they continued to exchange texts.  Subsequently, on 8 September 2012, she went to the appellant’s house, dressed in her pyjamas.  The evening turned violent and the rape occurred, as described in the libel.

[13] The appellant was 21/22 years old at the dates of the charges in relation to AD and 27 years old at the date of charge in relation to DMK.  

First ground of appeal

[14]      Before the availability of mutual corroboration can be excluded from the jury’s consideration, it must be that, despite similarities in time, place and circumstances in the conduct relied on by the Crown, on no possible view can it be said that the individual instances were component parts of a single course of conduct by the accused:  Reynolds v HM Advocate 1995 JC 142 at p.146.

[15]      The appellant’s contention is that there was insufficient evidence on charge 7; the doctrine of mutual corroboration could not apply because there were significant and material differences in the evidence.  In particular, there was a long standing relationship between AD and the appellant and AD was young and inexperienced, whereas there was no prior established relationship between the appellant and DMK, charge 7 involved a particularly violent rape, DMK was older and the events in charge 7 occurred after a significant gap in time.  The respondent, on the other hand, points to the similarities in the conduct, particularly those parts of each libel that are identical.  As for the gap in time, whilst it is accepted that it is significant, it could not possibly be said that it was necessarily destructive of there being sufficient connection between the charges.

[16]      The gap in time is, we agree, of some significance, the circumstances of the appellant’s relationship with each complainer were different and the impression of each complainer given by the evidence, was different.  DMK had, on the evidence, an apparent maturity that AD did not have.  On the other hand, in the case of both complainers, the conduct took place in the appellant’s home, the age difference between the appellant and the complainers (5/6 years and 8 years) was similar, rape was alleged, and the actions of the appellant in committing each of the alleged rapes was similar in respect that the appellant was alleged to have used violence and restraint which included seizing by the hair, slapping  on the face, seizing  wrists and pushing or throwing onto a mattress in a bedroom.

[17]      This was, perhaps, a narrow case.  There were significant dissimilarities.  However, there were also significant similarities and that meant that a process of evaluation was required:  Reynolds at p.146.  The trial judge carried out an evaluation and concluded that the issue was one for the jury. We are not persuaded that he was wrong to do so. The existence of dissimilarities was not, of itself, necessarily destructive of the possibility of mutual corroboration and we agree with the advocate depute that, on the evidence, it was open to the jury to decide that corroboration for charge 7 could be found in the circumstances of the charges involving AD.  It was possible to view the connections, on the evidence, as being demonstrative of the consistent pursuit by the appellant of an aim of obtaining sexual intercourse by employing a similar pattern of violence towards women who were also younger than him.  In all the circumstances, we are satisfied that the decision as to whether or not Moorov applied was one for the jury.  The trial judge did not err in repelling the no case to answer submission.  We note that no criticism was made of the directions on mutual corroboration which he gave to them.

Second Ground of Appeal

[18]      Charge 4 was a charge of rape.  The narrative part of the charge was, accordingly, to be taken as an allegation that the conduct referred to was demonstrative of the appellant having the mens rea of rape and was engaged in for the purpose of raping AD.  However, the jury were not, according to their deletions, satisfied that the appellant had raped AD at all on the occasions referred to in the charge.  In those circumstances and having had regard to the description of AD’s evidence provided by the trial judge, we consider the jury’s verdict on charge 4 to be so confused as to leave real doubt as to the criminal acts of which they were intending to convict the appellant. Accordingly, it amounts to a miscarriage of justice.

Disposal

[19]      We will, accordingly, allow the appeal to the extent of quashing the conviction on charge 4 but otherwise, refuse the appeal against conviction. The appeal will be continued for a hearing on that ground which relates to sentence.