Appellant:  MacDonald;  John Henderson & Sons, Dumfries

Respondent:  Brown, QC, AD;  Crown Agent

22 August 2014

[1]        The appellant was convicted at a sitting of the High Court of Justiciary at Glasgow on 26 July 2013 of the following three charges:

"(001)   on various occasions between 31 March 1991 and 30 March 1994, both dates inclusive, at an address in A and in car journeys in the A area you LESLIE MCPHERSON BRANNEY did use lewd, indecent and libidinous practices and behaviour towards K G, born 31 March 1978, c/o Police Services of Scotland, …… a girl then above the age of 12 years and under the age of 16 years, handle her vagina, expose your penis to her, place her hand on your crotch, compel her to handle your penis and masturbate you, push your penis towards her face, place your penis in her mouth, place your hands on the back of her head, penetrate her mouth with your penis and compel her to perform oral sex on you:  CONTRARY to the Sexual Offences (Scotland) Act 1976, section 5;

(002)    on various occasions between 31 March 1994 and 31 March 1997, both dates inclusive, at an address in A, and in car journeys in the A area you LESLIE MCPHERSON BRANNEY did indecently assault K G, born 31 March 1978, c/o Police Services of Scotland, ….. handle her vagina, expose your penis to her, place her hands on your crotch, compel her to handle your penis and masturbate you, push your penis towards her face, place your penis in her mouth, place your hands on the back of her head, penetrate her mouth with your penis and compel her to perform oral sex on you;

and

(003)    on various occasions between 31 March 1991 and 31 March 1997, both dates inclusive, at an address in A, and in car journeys in the A area, you LESLIE MCPHERSON BRANNEY did assault K G, born 31 March 1978, c/o Police Services of Scotland, …… and did remove her clothing, lie on top of her, insert your fingers into her vagina, and penetrate her vagina with your penis and did thus rape her".

[2]        On 23 August 2013 the appellant was sentenced, in relation to charge 1, to 20 months imprisonment, in relation to charge 2, to 2 years imprisonment, and in relation to charge 3, to 6 years imprisonment.  These sentences were to be served concurrently and to run from the date of sentencing.

[3]        In this report the trial judge informs us that the principal Crown witness was the complainer, K G.  At time of trial she was aged 35, having been born on 31 March 1978.  She was married and lived in Nottinghamshire.

The evidence of the complainer
[4]        Her evidence was that her mother and father had separated when she was very young.  She had a twin sister, V S, and a brother who was 18 months older.  Their mother had entered into a relationship with the appellant and when the complainer and VS were aged about eight the family had come to live at A.  The appellant and the complainer’s mother had eventually married.  The family settled at the address in A, a large house with some five bedrooms.  The complainer and VS had separate but adjacent bedrooms on the first floor.  Until the complainer was about 16 years of age her mother had worked in A and later in another town.  The appellant had worked as an architect and had spent much of his time working at home as a self-employed draftsman. 

[5]        The first incident recalled in evidence by the complainer occurred when she was about 13 years of age.  On that day her sister VS had been a bridesmaid at a wedding which the complainer had also attended.  VS had caused something of a stir in the family that evening by declaring that she was a lesbian.  The appellant had been speaking to her about this and the complainer had removed herself from the discussion by going into her own room and getting into bed.  The appellant came in and sat on the bed next to her.  They were talking about VS's declaration.  The complainer was crying a little because her sister had been upset.  The appellant stood up, placed his hand underneath the duvet of her bed and took hold of her hand which he placed on his crotch on top of his clothing.  He then placed his hand on her hand and rubbed her hand up and down.  Thereafter, he unfastened his jeans and took his penis out.  He placed the complainer's hand upon his penis.  He moved his hand up and down until he had become erect.  He placed his penis in her mouth before withdrawing it and ejaculating on to a tissue.  Then he kissed her on the forehead and left the room.  The complainer had gone to sleep.  She had not told anyone about this afterwards because she had been scared.  Thereafter this behaviour was repeated on a regular basis, sometimes in her bedroom, sometimes in the lounge of the family home and sometimes in the appellant’s car on journeys in the A area.  She had been told by him that she must not say anything about it because it was their little secret and it would destroy the family if these things had become known.

[6]        When she was about 15 and at secondary school the appellant had placed his fingers inside her vagina on various occasions in her bedroom.  He began to have full penile intercourse with her.  He would withdraw and ejaculate onto her stomach.  This behaviour upset the complainer who cried during it and after it had taken place.  Penetrative intercourse had also occurred thereafter in the appellant's car on occasions when he had collected her from work.  (She had started to work at a food outlet on certain evenings at the age of 15 or 16).

[7]        On one occasion when she was aged about 15 or 16 the appellant had placed his penis in her mouth while she was sitting on a settee in the living room in the early evening.  She was crying.  Her mother came home unexpectedly from work and walked into the living room.  She saw what was happening.  Her mother stood there for a second or two before turning round and walking out of the house.  The appellant had gone after her.  Later that evening they both returned and nothing was said about the incident within the family at any time afterwards.  On other occasions the appellant would enter the bathroom whilst the complainer was bathing and would touch her on the breast.

Disclosure to others;  the complainer’s husband
[8]        She had said nothing to anyone else at the time these things were happening, but in adulthood the complainer eventually made a disclosure to her sister VS.  Subsequently, when she was about 33 years of age, she had, she said, told her husband.  He became extremely angry and upset.  He gave evidence that he had telephoned the appellant and told him that the complainer had just said that he had molested her as a child.  Initially the appellant told him to stop being ridiculous.  Subsequently he said "It didn’t start until she was 21".  When the complainer’s husband indicated that the matter was to be reported to the authorities, the appellant replied, "My life's crap anyway.  Do as you like" and at that point he had hung up the phone.

The evidence of the complainer’s sister

[9]        VS, the complainer's twin sister, testified that in their childhood the complainer had clearly been the appellant's favourite.  She had noticed that he used to spend a lot of time in her bedroom.  She had heard them talking at times when the complainer was in bed.  On one occasion, she had heard the complainer crying when the appellant had been in her room.  She had also heard moaning coming from the complainer's bedroom which had been of no significance to her at the time;  however, in adulthood she had "put it down to sexual activity going on".  She recalled the evening after the wedding at which she had been a bridesmaid.  She recalled the appellant had spoken to her about her sexual orientation in a conversation which had taken place in her room.  Thereafter she had not seen him go into the complainer's room but she had heard noises coming from there.  She had certainly heard voices that night but she could not recall if she had heard any moaning or crying on that evening; her final position was that she may have.  She recalled that the appellant had continued to go into the complainer's room regularly until the time when VS had left the family home, when the girls were about 17.  In cross-examination, she confirmed that she had not known what the moaning sounds she had heard were at the time and she confirmed that she had heard the complainer crying from her room on various occasions.  The particular occasion she had spoken of rang in her head because it was the night on which she had come out about her sexuality.

The evidence of the complainer’s mother

[10]      The complainer's mother confirmed that she had lived with her family and the appellant at the address in A in the relevant period.  She confirmed that it had been quite obvious to her that the complainer had been the appellant's favourite of her children.  She recalled returning from her work on one occasion when she had entered the living room to see the complainer sitting on the couch directly in front of the door.  The appellant was leaning over her, standing up, with his penis towards her head.  The complainer had looked terrified and shocked.  Her husband had been leaning over her with his penis out at the unfastened crotch of his trousers.  She had formed the impression that the appellant wanted the complainer to give him oral sex.  She had immediately left the house.  Thereafter, the appellant had found her walking around the town.  He assured her that it would not happen again.  She did not know what to do and had not spoken about it to anyone, including the complainer, at the time.

The evidence of the appellant’s police interview
[11]      The complainer came forward with these allegations in the summer of 2011.  Thereafter, on 25 November 2011, the appellant was interviewed by the police.  He denied the allegations which were put to him.  He explained that on the day on which his wife had walked into the living room, he had been showing the complainer a video of one of his racing greyhounds.  This video had been supplied by a friend and at the end of the greyhound racing footage the appellant said that the remainder of the tape had turned out to be of pornographic material.  He had been standing up to try to prevent the complainer from seeing it at the point when SB had walked in on them.

[12]      The defence led no evidence.

No case to answer submission

[13]      At the close of the Crown case counsel for the defence made a submission of no case to answer in respect of charge 3, the rape charge.   The trial judge repelled the defence submission and held that there was a sufficiency in respect of both the actus reus and the mens rea of rape.  He regarded V S's evidence as consistent with and supportive of the complainer's account.  As a result he did not regard the admission by the appellant to the complainer's husband to be essential to the Crown case.  He, however, took the view that the admission was properly to be regarded as a relevant mixed statement and that it would be open to the jury to accept the admission and to reject the qualification.

The appeal
[14]      The appellant appeals against conviction.  The appeal is on three grounds.  The first is that the trial judge erred in law in refusing the submission of no case to answer in respect of charge 3.  The second is that the judge misdirected the jury in relation to charge 3 by treating the response made by the appellant as a mixed statement and directing the jury that it was a matter for them to decide whether any adverse inference against the appellant could be drawn from it.  The third is that the appellant did not receive a fair trial in terms of article 6 of the ECHR in respect that the Crown had failed to disclose prior to the trial the fact that, following upon her disclosure of the appellant's alleged activities, the complainer had been diagnosed as suffering from "severe depression".  This information only came to the knowledge of the defence in the complainer's Victim Impact Statement which was intimated following on the Crown motion for sentence.  This ground of appeal relates to conviction on all three charges.

[15]      Counsel for the appellant submitted that the actus reus of the charge of rape in the present case was penile penetration of the vagina without consent.  Mens rea was present where the man knew that the woman was not consenting or was reckless about that.  Both these elements required full proof by corroborated evidence.  The complainer was the primary source of evidence and the issue was the corroboration of her account.  It was accepted that there was sufficient evidence of lack of consent.  The complainer's evidence was that intercourse had taken place in her own bedroom and in the appellant's car.  There were three possible pieces of evidence which the Crown might argue afforded corroboration, they were (i) the evidence of the response made by the appellant to the complainer's husband, (ii) the evidence of the complainer's distress given by her sister V S, and (iii) the evidence of the sounds heard by V S.

[16]      The appellant's response to the complainer's husband could not afford corroboration of penetration because (a) it was outwith the period of the libel which ended when the complainer was 19 and she had said that all sexual activity had occurred when she was aged between 13 and 17;  (b) while the reply indicated acceptance of some form of sexual misconduct, it would be speculative to apply it specifically to the allegation of rape;  and (c) the remark itself was equivocal since the allegation of "molestation" was vague and the appellant's reply might be attributable to any of the three charges on the indictment.  Clarity was required with regard to which aspect of the case the admission was said to be attributable.  The complainer's distress as spoken to by V S was only evidence that something distressing had happened.  It could not corroborate the occurrence of specific acts.  Similarly, the sounds heard by V S could not corroborate that intercourse had occurred.  When specifically asked she said that in later life she had "taken it to be that sexual activity was taking place".  At the time the sounds had been of no significance to her.  She gave no further specification of the sexual activity.

[17]      For the Crown, it was argued that the appellant's response to the complainer's husband’s accusation fell to be regarded as a mixed statement, since it contained a partial admission accompanied by a qualification designed to be exculpatory.  It was for the jury to determine whether it might provide corroboration of her account.  It would be unduly artificial for the use of the word "molestation" to be regarded as describing something short of full sexual activity.  It was open to the jury to accept the admission and to disregard the qualification by reference to other evidence.  The Crown's position at trial had been that, without the appellant's response there was an insufficiency of evidence of rape.  However the evidence of the admission was not so ambiguous as to be incapable of providing the necessary corroboration.  The interpretation of it was a matter for the jury but it could be construed as relating to full sexual intercourse.  Similarly whether or not the sounds heard by VS could be construed as relating to full intercourse was a matter for the jury.

Decision
[18]      It is convenient to deal firstly with ground 2.  In our opinion the appellant's response to the complainer's husband's accusation of molestation, "It didn’t start until she was 21", falls to be regarded as a mixed statement.  It contains an implied admission and a qualification of that admission.  Accordingly, the jury were entitled to construe the response as an admission of "molestation" of the complainer by the appellant and at the same time to reject the qualification relating to the age of the complainer at the time of the admitted conduct, which was in conflict with the complainer's own evidence.  We therefore reject the argument that the trial judge misdirected the jury.

[19]      In relation to ground 1, the Crown relied for corroboration of the complainer's evidence of penetration on three pieces of evidence:  (1) the evidence of the complainer's distress given by her sister V S;  (2) the evidence of V S of groaning and other sounds made by the complainer while in her bedroom with the appellant and (3) the appellant's response to the complainer's husband's accusation of molestation.  The same issue arises in relation to V S’s evidence as to the complainer's distress, and in relation to her evidence of the sounds made by complainer.  It is clear from the decision in Smith v Lees 1997 JC 73 that, while that evidence was capable of confirming or supporting the complainer's evidence that something distressing occurred, it cannot support or confirm the evidence that a particular form of sexual activity took place.  As Lord Justice General Rodger said at page 90 there is no basis upon which the jury can use the evidence of distress (and in this case of sounds made by the complainer) to draw the necessary inference that the particular form of sexual activity in question occurred (see also Lord Sutherland at page 118 and Lord Gill at page 121).

[20]      As we have already said, the appellant's response to the complainer's husband was capable of being construed as an admission of molestation.  Molestation is a vague term conveying a range of conduct which may not  even be sexual.  The primary meaning given by the Shorter Oxford English Dictionary to the word "molest" is "to cause trouble to, to vex, annoy, to put to inconvenience".  Even when construed as referring to unwanted sexual advances, its vagueness is such as to give no indication of their nature.  Accordingly the appellant's admission cannot be construed as an admission of penetrative intercourse.  Rape involves a very specific form of assault and the appellant’s response fell short of the degree of detail or specification required to amount to an admission of the particular form of penetrative sexual activity required.  We are, accordingly, satisfied that ground of appeal 1 must be upheld.

[21]      In advancing ground 3, counsel for the appellant accepted that, had the information relating to the complainer's mental health been made available to him during preparation for the trial, he would have required to make an application under section 274 of the Criminal Procedure (Scotland) Act 1995 to enable him to use that information in cross-examination of the complainer.  Nevertheless, the information should, he submitted, have been made available.  The credibility of the complainer was in issue and it would have been appropriate for the defence, had they had the information, to seek a psychological assessment of her.

[22]      For the Crown, the advocate depute informed us that no information relating to any mental health difficulties affecting the complainer was available to the Crown during the preparation of the prosecution case.  The information only emerged in the complainer's Victim Impact Statement.   In these circumstances, there was no breach of section 121 of the Criminal Justice and Licensing (Scotland) Act 2010.  We also understood the advocate depute to say that the defence were in fact aware during the preparation of the case that the complainer had mental health difficulties.   We did not understand counsel for the appellant to be in a position to contradict these statements.  Moreover, it is by no means clear that, standing the provisions of section 274, a bare statement that a complainer had suffered from severe depression as a result of the appellant's conduct would have provided legitimate ground for exploring her mental health in evidence.  We are unaware of any automatic association between depression and lack of credibility.  The random, speculative, use of such information in cross-examination of a complainer is what section 274 is designed to prevent.  We are satisfied that there was no miscarriage of justice in this case and that there was no breach of the appellant’s rights under article 6 of the ECHR.

[23]      The result is that we shall allow the appeal on ground 1 and quash the conviction on charge 3.  The other two grounds of appeal are refused.