Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 103

XC682/13

Lord Justice Clerk

Lady Smith

Lord Brodie

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

ROSS LENNIE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  McConnachie QC; John Pryde & Co, SSC (for Glasgow Law Partnership)

Respondent:  Fairley QC AD; the Crown Agent

21 August 2014

General
[1]        On 11 October 2013, at the High Court in Glasgow, the appellant was convicted of a charge which libelled that on 30 June 2012, at a flat in Cumbernauld, he assaulted the complainer and “did lie beside her on a bed, pull up her dress, penetrate her vagina with [his] penis and … did thus rape her: CONTRARY to section 1 of the Sexual Offences (Scotland) Act 2009”.  A co-accused, namely Ross McCallum, was also convicted of the rape of the complainer, in terms of a separate libel to the effect that he “did push her onto a bed, pin her down, remove her tights and underwear, pull down [his] trousers and underwear, attempt to kiss her, penetrate her vagina with [his] penis and … did thus rape her” contrary to the same section.  On 7 November 2013, both accused were sentenced to 5 years imprisonment. 

Circumstances
[2]        On the date in the libel, the complainer had gone to the appellant’s flat.  Although not particularly friendly with the appellant, she did know him and had started to spend some time in his company around about that period.  The purpose of going to the flat was to meet various other people and to drink alcohol.  The complainer had arrived at about 7.00pm when the appellant, the co-accused and another male, namely CS, were already there and had been drinking for some time.  The complainer’s friend, namely JM, had arrived at about 9.00pm.  The complainer had started drinking when she arrived at the flat and was drunk by the time JM had arrived. 

[3]        At some time after midnight the complainer became involved in an altercation with the appellant and his co-accused after she had tried to stop what the trial judge describes as “play fighting” between the two accused.  At that point the accused both appeared to have made negative remarks to the complainer and the appellant had thrown a drink of vodka over her.  She had started to cry and her evidence was that the atmosphere in the flat had changed at that point. 

[4]        The complainer began to behave irrationally.  This included going into the kitchen and cutting her arms with a knife.  She had been self-harming since later childhood.  The appellant noticed the injuries which she had inflicted upon herself and appeared to be shocked.  He told the complainer that she would have to leave the flat.  The complainer continued to be upset; saying that she could not go home because of the likely reaction of her mother, particularly in relation to her state of drunkenness. 

[5]        In due course, the complainer went into a bedroom and lay down with JM and CS, who were on the bed.  The appellant came into the bedroom and again told the complainer to leave.  He took her by the arm and pulled her from the bed.  The co-accused then came in and pushed her onto the floor, causing her back to strike the edge of the bed.

[6]        JM and CS stated that they were leaving.  The complainer decided not to do likewise because she could not find her phone.  She went into a different bedroom to look for it.  At this point the attitude of the two accused appeared to change.  They invited her to stay and sleep over at the flat.  The appellant left the bedroom, leaving the complainer alone with the co-accused.  The co-accused, according to the complainer, pushed her onto the bed and she landed in a seated position.  He pushed her onto her back.  She fell back and ended up lying across the bed.  She was saying “no, no”, and that she wanted to go home.  However, the co-accused got on top of her, lifted up her dress, pulled off her tights and underwear and penetrated her.  The complainer was unable to get up because the co-accused had his hands on her shoulders and she was in a state of intoxication.  After a period of less than 5 minutes, the co-accused withdrew and left the room without saying anything further.

[7]        A matter of seconds later, the appellant entered the room.  The complainer was lying on her side, crying and upset.  The appellant got onto the bed behind her and penetrated her for a matter of seconds.  The complainer was able to move away, however, which she did.  She got dressed and left the flat.  She described herself as hysterical at this point.  At about 5.00am she telephoned her former boyfriend, namely RW, who agreed to collect her in his car.  He gave evidence that the complainer was very upset, very scared and hysterical.  He asked her questions about what had happened and whether two men had raped her.  The complainer had not volunteered this information and, in particular, had not used the word “rape”.  However, RW had formed the view that this is what had happened and put it to the complainer, having reached his preliminary conclusion.  The complainer did not want to return home for fear of upsetting her mother.  When she arrived home, she ran away.  She later returned, but refused to speak to her mother and went straight to bed.  At about 5.30am she sent a text message to her friend JM.  She asked JM to call her, which she did.  According to JM, the complainer was crying and sounded hysterical.  She told JM that she had been raped and that this had been by the co-accused.  JM had been unaware of the involvement of the appellant until she received her witness citation.  She also spoke to the complainer’s volatile state prior to JM having left the flat at about 4.30am, stating that she (JM) had been attacked by the complainer, who had pulled her hair. 

[8]        At the conclusion of the Crown case the appellant made a submission of no case to answer on the same basis as was repeated in the submissions in the course of the appeal (infra).  The appellant gave evidence thereafter to the effect that he had not had sexual relations with the complainer.  However, there was evidence of the presence of semen from both the appellant and the co-accused on the complainer’s underwear.  The appellant’s position was that that was attributable to having had sexual intercourse with the complainer some two weeks previously.  It was, however, open to the jury to reject that explanation and the presence of the semen was thereby sufficient corroboration of the complainer’s position that penetration had occurred.

Charge to the jury
[9]        The trial judge directed the jury that they required to return a separate verdict on each charge separately in respect of each accused, commenting that that would have been fairly obvious to them.  She directed them that there had to be, for each of the charges, sufficient evidence for a conviction and that this meant that the jury would “have to consider the evidence against each accused on the charge that they faced separately …  You’ll need to look at the evidence separately for each accused”.  That did not mean that because a piece of evidence was relevant for one accused, it was not equally relevant in relation to the charge which the co-accused faced.  However, it was stressed that the jury could “easily reach different verdicts” in respect of the two accused.  The trial judge also gave the jury the standard directions on the need for corroboration; stating that “nobody could be convicted on the evidence of one witness alone, no matter how reliable or believable the jury thought them” to be.  This meant that there had to be evidence, which the jury accepted as credible and reliable, and evidence from another source confirming or supporting the principal source of evidence.  That supporting evidence could come in the form of circumstantial evidence, but proof by corroborated evidence was needed that the crime was committed and that the particular accused committed it. 

[10]      When it came to addressing the issue of corroboration of lack of consent, the trial judge stated that the Crown approach was that the jury could rely on the distress of the complainer after the event in order to provide corroboration, provided that the distress was “genuine, … real, and … attributable, that is due to the conduct of each or both of the accused on the charge which they face”.  She said that she would return to that particular matter in due course, but meantime pointed out that the Crown also relied on the whole circumstances of what went on in the flat that night to provide the necessary corroboration of the complainer’s evidence.  These included, notably, the behaviour of the accused towards the complainer before the rape, including the throwing of the drink over her, the efforts to remove her from the flat after she had been self-harming, and what was said to be victimisation of the complainer by both the accused.  The trial judge then returned to the issue of distress after the event and said the following:

“Now, such evidence of distress is just a piece of circumstantial evidence.  You can accept it or reject it.  If you do accept it, it can’t corroborate … what actually happened … the circumstances in the room, but it could confirm, it could corroborate that she suffered some distressing event, it could corroborate her state of mind at the time or soon after the incident, and that could … corroborate her evidence that she did not consent. 

However, before you can take distress as a source of corroboration you would need to be satisfied of the following … that the distress was genuine, or real, and, importantly that it was due wholly or partly to [the complainer] not consenting to what one or both of the accused did and not wholly to some other reason …”

[11]      In this connection the trial judge stated that the Crown’s position was that, in accordance with the complainer’s evidence, there had been a difference in the level of upset which the complainer was suffering in the course of the evening and her behaviour after the point at which she alleged that she had been raped.  The defence, on the other hand, according to the trial judge, stated that this was not a legitimate approach and that there were a number of factors which might have caused her distress.  There was the drink taken, her erratic and emotional state throughout the evening, the drink being thrown over her, the attempts to remove her from the house, apparent jealousy of JM in relation to CS, a physical attack on JM by her, and the fear of going home to her mother in her intoxicated state.  The trial judge accordingly directed the jury that they had to look at the evidence about distress “with particular care”.  They would have to decide what had caused it, in whole or in part.  The need to treat this evidence with particular care was repeated and, in particular, the jury were again directed that they had to be satisfied that it was genuine distress “and … attributable … to, in whole or part, what each or both of the accused did”.  The trial judge went on, once more, to emphasise that the jury had to consider the case against each accused separately and the evidence against them separately.  They had to do that in particular with the evidence of distress in deciding whether or not they were satisfied that there was distress and whether it was due “in whole or part, to [the complainer] not consenting to what … either or both of the accused had done”. 

Submissions
[12]      The appeal proceeded upon two grounds.  The first was that the trial judge had erred in failing to sustain the no case to answer submission, relative to the sufficiency of the evidence that the complainer had not consented to intercourse.  At the outset it was stressed that this was a very unusual case of the type envisaged in Mongan v HM Advocate 1989 SCCR 25, in that it was not possible to attribute any proved distress to the episode of rape alleged in relation to the appellant, as distinct from the many other potential causes including, of course, the earlier rape by the co-accused.  There had been several incidents which might have caused the distress.  The complainer herself had not been asked specifically to express a view on what had caused that distress.  In these circumstances, following Mongan, the distress should properly be regarded as “neutral” (cf Bennett v HM Advocate 1989 SCCR 608 and the approval of Mongan in Smith v Lees 1997 JC 73).  It was not submitted that the existence of two or more possible causes for distress thereby excluded distress as a source of corroboration.  Rather, each case depended upon its own facts and circumstances (see Martin v HM Advocate 1993 SCCR 803).  However, the law remained that there are cases where distress must be regarded as neutral and cannot provide the necessary corroboration.  In extreme cases, of which this was one, it did not allow the jury to use it as corroboration by way of supporting or confirming the complainer’s account (cf Fox v HM Advocate 1998 JC 94). 

[13]      The second ground of appeal was directed towards the adequacy of the directions on distress by the trial judge.  Particular criticism was levelled at the absence of a specific statement that the jury had to find that part, at least, of the distress displayed by the complainer after the event was referable to the rape perpetrated by this appellant.  The problem was that the complainer had not been asked to apportion elements of her distress to particular events.  In these circumstances it was not clear that the jury had been given the essential directions on how to go about their task.

[14]      The advocate depute stressed that this was not a case in which the only source of corroboration had been the distress of the complainer after the event.  As the trial judge had pointed out in her charge, the Crown had relied on the whole circumstances before the event, including the assaults on the complainer and her victimisation by both accused.  Although there was evidence that she had been distressed in the course of the evening in advance of the acts of intercourse, the evidence was to the effect that the level of distress thereafter had been of a different nature.  It amounted, according to the former boyfriend and the complainer herself, to something of the nature of hysteria.  It had been open to the jury to infer from the existence of pre-intercourse distress that the complainer would not have been likely to consent to intercourse.  There was also the proof, which the jury obviously accepted, that the complainer had been subjected to a forcible rape by the co-accused immediately prior to the intercourse with the appellant.  It was again open to the jury to infer that she was hardly likely to have consented to further intercourse whilst in a continuing state of distress.  Looking at the totality of the evidence, there was plenty of circumstantial material in addition to the distress to provide corroboration of lack of consent.  It was clear from Bennett (supra) that the availability of distress as corroboration was a matter of fact and degree and thus for the jury to determine.  It was not something which could be successfully resolved by way of a no case to answer submission.  Mongan was distinguishable because, in that case, the Crown had been unable to say whether the distress had been attributable to the housebreaking or to the alleged robbery.  It was thus about the actus reus and not about the state of mind of either a complainer or an accused in a rape case.  In that regard, the authoritative approach to corroboration in this area remained that explored in Fox v HM Advocate (supra).  Where there was evidence from another source that intercourse had taken place, the remaining circumstances, including the distress, provided sufficient corroborative evidence confirming or supporting the account given by the complainer of rape by both accused.  In relation to the judge’s charge, it was difficult to see that the matter could have been made much clearer in relation to the need for the jury to hold that the distress was attributable, at least in part, to the actions of the particular accused. 

Decision
[15]      Each case will, no doubt, turn upon its own particular facts and circumstances.  As a generality, distress, which is proved to have been present shortly after an alleged incident or incidents have occurred, will be available to provide corroboration of lack of consent in the sense of being capable of confirming or supporting a complainer’s evidence that she did not consent to whatever might have occurred (Fox v HM Advocate 1998 JC 94).  The narrow point raised by the appellant, however, is whether such evidence has corroborative value where the distress may be explained by a variety of factors, including the complainer’s account of events.  Thus, it was submitted that, where such an explanation is present, the complainer’s distress is properly to be regarded as “neutral”; a term which may be seen as problematic.

[16]      In this area, it is important to focus upon authorities specific to the crime of rape, or at least sexual assault, given the specialities relative to proof of mental state, rather than to crimes in which distress is deployed to corroborate elements of the libel (eg Mongan v HM Advocate 1989 SSCR 25, cf Bennett v HM Advocate 1989 SCCR 608; Smith v Lees 1997 JC 73; all of which pre-date Fox).  At first sight, it might be thought that the appellant was, in effect, seeking to resurrect the ratio of Mackie v HM Advocate 1994 JC 132, which was subsequently expressly disapproved (Fox v HM Advocate (supra)), to the effect that evidence which is no more consistent with a complainer’s version of events than with another explanation is properly to be regarded as “neutral” in the sense of having no corroborative effect.  The appellant thus attempted to put his case into an exceptional category, of the type which was tentatively identified in Smith v Lees (supra, LJG (Rodger) at 100) as one “where the circumstantial evidence is ambiguous, but no reasonable jury could choose the interpretation which would support the direct evidence”.  Mongan v HM Advocate 1989 SCCR 25 has been cited elsewhere as an example of such a case (Fox v HM Advocate (supra), Lord Kirkwood at 114).

[17]      The present case does not fall into such a category.  This is not a situation in which the circumstantial evidence was incapable, on any view, of supporting the direct evidence of the crucial facts provided by the complainer’s testimony, such that it might properly be described as “neutral” (cf Fox v HM Advocate (supra), Lord Gill at 121 – 122).  On the contrary, the evidence of distress was capable of pointing to lack of consent, whatever other explanations for it may have been proffered to the jury (ibid).

[18]      The court is satisfied, in any event, that the distress was not the only testimony available to corroborate the complainer’s evidence that she had been raped by both accused.  There were the circumstances preceding the incident, spoken to by other witnesses, including the manner in which the accused had treated the complainer, all of which would have made it highly unlikely that she would have consented to intercourse with them, or either of them, after the humiliation which she had already suffered at their instance.

[19]      Furthermore, this is not a case in which the evidence of distress related only to the complainer’s condition after the event.  There was evidence that, prior to any sexual activity, the complainer had been in a state of some considerable distress, albeit not to the hysterical extent that she was thereafter.  In these circumstances, it would be a short step for the jury to hold that there was evidence, quite independent of the complainer’s testimony, from which it could be inferred that, at the time of any sexual encounter, the complainer must have been showing visible signs of distress.  This would again be indicative of a state in which she would be unlikely to consent to intercourse and that any person attempting such intercourse would be aware of that state.  The evidence of distress was, therefore, capable of supporting the complainer’s account (Fox v HM Advocate (supra), LJG (Rodger) at 103).  It was then properly a matter for the jury’s consideration in the context of the evidence as a whole.  In all these circumstances, this ground of appeal must fail. 

[20]      The trial judge gave adequate directions to the jury both on the question of sufficiency of evidence and the significance of distress in that context.  In particular, she correctly directed the jury that there were a number of sources of evidence relating to the circumstances  immediately before the alleged rapes had happened which, especially when coupled with the evidence of distress, would provide ample corroboration of the complainer’s account.  The trial judge also gave the jury clear directions that they had to be satisfied that the distress which the complainer displayed after the event was attributable to “each or both” of the accused.  This would have made it abundantly clear that, for the jury to determine that distress formed part of their decision on corroboration, they would have to be satisfied that it was caused in part by the actions of the particular accused on the specific charge upon which they were deliberating.  In these circumstances, this ground of appeal must also fail.