Appellant: Jackson Q.C., C.M. Mitchell; John Pryde & Co. SSC (for Turnbull McCarron, Glasgow)

Respondent: McSporran,A.D.; Crown Agent

3 September 2010

[1] On 24 January 2008, at the High Court in Kilmarnock, the appellant was found guilty of two charges which libelled that:

"(2)  On 1 April 2007 at Cross Arthurlie Street, Barrhead, you did assault [LM], seize her by the neck, threaten her that you had a gun, compel her to accompany you to an alleyway adjacent thereto, force her to the ground, lie on top of her and restrain her on the ground, kiss her on the face and lick her face and neck, place your hands around her neck and compress same, restrict her breathing to her loss of consciousness and to the danger of her life, hold your arms across her upper body, pull down her pants and trousers and did rape her.

(3)  On 1 April 2007 at an alleyway next to Cross Arthurlie Street, Barrhead, you did abduct [LM], detain her against her will, tell her not to say anything or attempt to run away, seize her by the body and compel her to accompany you to Robertson Street, Saunders Court, John Street and Cross Arthurlie Street, all Barrhead".

The trial judge adjourned the diet after conviction for the purposes of obtaining a Social Enquiry Report and a Risk Assessment. After a series of continuations, on 31 March 2009 he imposed an order for lifelong restriction with a punishment part of 8 years.

[2] The appellant's ground of appeal against conviction can be stated shortly. It is that there was insufficient evidence to prove rape, notably that there was insufficient corroboration of penetration. Unfortunately, the trial judge has not provided the court with an account of the evidence in his report. That problem begins with an absence of any narrative spoken to by the complainer. Other than that she was a stranger to the appellant, aged 18, who was going to her work on a Sunday morning when she met the appellant at a bus stop, there is no report on her account of the incident beyond a generalisation that the appellant attacked the complainer as libelled. So far as the appellant's position at the trial was concerned, that too is not covered in the report, but there is a brief reference to it in the trial judge's charge to the jury as follows (p 40):

"...he did accept that he'd met [L] at the bus stop. He described having a laugh and a joke of [L] walking with him to the bank, he wanted to go to the bank, that [L] thought he was quite funny, she quite liked him, put her arms around him...and there was kissing and there was cuddling....he did not have intercourse with [L], there was the kissing, the cuddling and the fumbling... [L] put her hands down his trousers in his groin, near his private parts...".

The trial judge does report to a degree on the matters founded upon by the Advocate Depute as corroborative of penetration. In particular, he refers to there being evidence from a forensic scientist that a pubic hair had been found on the crotch area of the complainer's pants and DNA had been discovered on the front of her trousers. [3] The detail of the evidence, as revealed from the transcript obtained and the forensic report itself, is that the findings were that on the crotch area of the complainer's pants there was a pubic hair. There was also a further pubic hair found in the production bag in which the pants had been stored. DNA analysis of the pubic hair revealed both to be from the appellant. Examination of the pants also revealed DNA on the waistband, which was mixed DNA from the appellant and the complainer. The DNA on the front of the complainer's trousers was from the appellant. Although it does not appear to have been founded upon by the trial Advocate Depute, it is perhaps not without significance that there were also detailed findings in relation to recent damage to the pants and to their dirty condition.

[4] The trial Advocate Depute spent some time analysing the findings of the forensic scientist in examination in chief. This detailed exploration continued in cross‑examination and re-examination. It is not necessary to go into that detail, but the highlights can perhaps be focussed. First, in examination in chief, the forensic scientist was asked a general question about the findings and replied:

"Our findings when considered with the content of the joint report from SPSA Forensic Services, Aberdeen would support an assertion that intimate contact has taken place between [LM's] pubic area and John Munro".

That passage occurred after a series of often leading questions on whether certain of the scientific findings were "consistent with" penetration. An affirmation usually followed these questions, although sometimes the response was that the particular scenario was "possible" rather than "consistent". When it came to cross‑examination, the following question and answer achieved the high point of the Crown's position as follows:

"Well if the issue was to prove that sexual intercourse had taken place, and by that I mean between a man and a woman, penetration of a woman by a man had taken place, there is nothing in any of these scientific examinations that we've discussed so far which proves that, lends support to that, does it? The presence of a pubic hair in the crotch would..."

Finally in re-examination there was the following leading question and answer:

"And in fact what you've told the ladies and gentlemen is that, with regards to certain of your findings, such as the pubic hair in the crotch of the pants and the DNA on the front of the trousers, those findings, so far as they go, are consistent with an account of sexual intercourse taking place. Is that correct?

Yes, they would support that scenario".

[5] It was submitted by the appellant, under reference to the dicta in Fox v HM Advocate 1998 JC 94, Lord Justice General (Rodger) at 100, and Smith v Lees 1997 JC 73, Lord McCluskey at 108 to 109, that mere consistency, at least in a neutral sense, was insufficient to provide corroboration. The trial judge had charged the jury that, if the scientific evidence amounted only to the findings being "consistent with sexual intercourse", that would not be sufficient to constitute corroboration of penetration. That essentially was the approach taken in submission by the appellant. Ultimately that submission could be shortly stated: the finding of the pubic hairs and the appellant's DNA did not have the requisite quality capable of supporting penetration.

[6] In response, the Advocate Depute refuted the contention of the appellant with the opposite proposition. This was essentially that it was not necessary for there to be corroboration in the form of evidence which was itself, individually or in isolation, capable of proving penetration. Reference was made again to Fox v HM Advocate and, in particular, to the dicta of Lord Gill at 124. The issue was whether the evidence founded upon as corroboration was capable of supporting the testimony of the complainer in relation to penetration. If that evidence made penetration more probable, or, put another way, supported or confirmed the evidence of the complainer, then it amounted to corroboration. It was not so much a matter of the terminology used by the forensic scientist. In that regard, the trial judge had set the bar at too high a level in describing the scientist's use of the word "consistent" as being incapable of demonstrating corroboration.

[7] A piece of evidence is corroborative of testimony of a fact in issue if it can be said to support or confirm that testimony. That is, in essence, the test set out by the Lord Justice General (Rodger) and by Lord Gill in Fox v HM Advocate, at pages 100 and 124 respectively (reversing the effect of Mackie v HMA 1994 JC 132). Where there is an allegation of rape, which of course involves proof of sexual intercourse in the sense of penetration, the finding of an accused's pubic hair adhering to the inside crotch area of a complainer's pants will support the complainer's testimony that sexual intercourse occurred. In that connection, it is not something dependent upon a scientific view of consistency, as a scientist rather than a lawyer would use that term, but whether an appropriate inference of fact can be drawn by a jury.

[8] For that short reason the appeal against conviction must fail and is therefore refused.

KW