Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 3

XC742/13

Lady Paton

Lady Smith

Lady Cosgrove

OPINION OF THE COURT

delivered by LADY SMITH

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

JAMES KEANEY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: K  Stewart, QC; Faculty Services, Edinburgh for Rhodes & Co, Dundee

Respondent:  Brown QC AD; Crown Agent

14 January 2015

Introduction

[1]        The appellant was convicted in relation to two charges which libelled assault, abduction and rape (at common law) committed against the complainers “X” and “Y”.  Charge 1 alleged conduct by the appellant in relation to X between 1 May 1996 and 31 December 1999.  Charge 2 alleged conduct by the appellant in relation to Y between 1 August 2001 and 31 December 2005.

The evidence

[2]        The appellant was in a relationship with both complainers during the periods libelled.  X and Y described their relationships with the appellant in very similar terms.  On many occasions the appellant was nice and considerate; however, there were also increasingly frequent incidents of physical and sexual abuse.

[3]        X described how her relationship with the appellant started when she was 19 years old.  She soon became pregnant and they began to co-habit.  X then began to notice changes in the appellant’s behaviour.  He was overly protective of her during her pregnancy;  he would monitor her when she carried out routine tasks like shopping;  and he would be physically violent towards her, dragging her about by the hair or her arms, hitting her off walls, pushing, punching and kicking her, shouting abuse at her, and threatening her with violence.  The appellant would frequently keep her locked in the flat.  After their first year together, the incidents of violence occurred almost daily for a period of two years.

[4]        The appellant also made frequent demands for sexual intercourse.  X would tell him when she did not want to have intercourse but the appellant would not listen.  On occasions he would then simply have sex without her consent and she would just lie passively.  On other occasions he would use force against her and pin her down by her wrists.  Any occasions when she attempted to resist would end in her being assaulted.  X spoke to having been raped by the appellant on several occasions.  She explained that, having been assaulted and raped by the appellant, she would on occasion allow him to have sexual intercourse with her as to refuse would result in an assault and rape with force.  Even on those occasions she would make it clear that she did not want to have intercourse but the appellant would not listen.  X stated that on these occasions she would let the appellant do what he wanted because if she did not, she would “get a doing”.

[5]        X became pregnant again during a period of separation from the appellant.  She described continuing violence towards her by the appellant during that pregnancy.  Days after giving birth to her son, X returned home from hospital.  On her arrival home, the appellant grabbed her hair and pulled her about, pulled down her trousers and raped her.  This attack was motivated by the fact that X had become pregnant by another man.  About a month later the appellant tied up X with belts and locked her in a cupboard.  After the relationship ended, the couple’s daughter (X’s first child) continued to reside with the appellant.

[6]        Y gave evidence that she also co-habited with the appellant.  Whilst all went well initially, the relationship deteriorated when she became pregnant.  Y was confined to the house.  The appellant monitored her phone calls; he was verbally abusive and would throw her out of the flat and lock her out.

[7]        The appellant would frequently want to have sex with Y and, if she refused, he would punch her, bend her fingers back, shout, swear and call her names.  Often, he stated “this is a man’s needs”.  Y also spoke to the appellant twisting her arms, pulling her hair, pushing her, grabbing her neck and placing her in a headlock.  Most of the violence towards Y was linked to the appellant’s sexual demands.  He would, on occasions, wake her up and demand to have sex with her.  If she refused, the appellant would start to be verbally aggressive and would become violent.  Y stated that she would frequently give in and permit the appellant to have intercourse, but only because of her fear of his violence.  She would have sexual intercourse with him in order to have peace.  Y was unable to place a number on the frequency of the instances of rape; however, it was plain from her evidence that it was very frequent.

No case to answer submission

[8]        At the close of the Crown case, senior counsel for the appellant made a submission under section 97 of the Criminal Procedure (Scotland) Act 1995 that there was no case to answer.  It was submitted that the Moorov doctrine could not apply because the complainers’ accounts lacked the requisite similarity and, in particular, because the complainer X had spoken to rape committed by means of force whilst the complainer Y had spoken to non-forcible rape (albeit one in which she stated that the appellant had been violent and threatening towards her about 15 minutes before the rape took place).  The submission was repelled by the trial judge.

Sentence

[9]        The trial judge imposed an extended sentence of 16 years of which 12 years was specified as the custodial term.      

Trial judge’s charge

[10]      With regard to the second ground of appeal ( see below) the salient parts of the judge’s charge are:

• At p9 - 10, he directed them correctly as to the constituent elements of the crime of rape;
• In particular, at p10 - 11, he directed them clearly that the Crown required to prove the absence on the appellant’s part of an honest belief that the complainer was consenting;
• At p11, he reminded the jury that the position of the Crown was that it could be inferred from the whole circumstances, as spoken to by each complainer, that the appellant did not have any such honest belief;
• At p11 - 12, he reminded the jury that the defence position was that whilst sexual intercourse occurred between him and the complainers, it was always with their consent, there was never any force and there was never any rape;  the issues were, accordingly, whether or not the complainers consented and whether the appellant had no genuine belief that they were consenting;
• Between pp23 and 29 , he gave the jury clear and careful directions on corroboration;  in particular, he explained mutual corroboration and the restricted circumstances in which it is available, under reference to the case of Moorov v HM Advocate 1930 JC 68, accurately and in terms which were not the subject of any criticism.

Grounds of appeal

[11]      There were two grounds of appeal against conviction.  First, that the trial judge erred in refusing to uphold the no case to answer submission, and, secondly, that he misdirected the jury in respect that he did not provide directions on mens rea, in particular that they had to be satisfied on the basis of corroborated evidence that the appellant did not have a genuine belief that the complainers were consenting.

Discussion and decision
Whether trial judge erred in repelling the submission of no case to answer

[12]      It is an essential feature of the common law crime of rape that the man had the relevant mens rea, namely that he knew that the woman was not consenting to sexual intercourse or was reckless as to whether she was consenting or not:  Lord Advocate’s Reference (No. 1 of 2001) 2002 SCCR 435.  The man is reckless if he acted without thinking or was indifferent as to whether or not he had the woman’s consent:  Jamieson v HM Advocate (No 1) 1994 SCCR 181. Whether the man knew that the woman was not consenting or was reckless as to whether she was consenting or not is a question of fact.

[13]      In cases where rape is alleged by more than one complainer, it is not unusual for the evidence of each such single witness to be used for mutual corroboration. That is, it may be said that when their evidence is considered together, it shows that the accused’s actions in relation to each of them were part of a single course of criminal conduct: Moorov v HM Advocate.  Whether or not it does show that is a question of fact and, accordingly, it is only where, on no possible view of the evidence could it be said that the complainers’ individual experiences were part of a single course of criminal conduct that the availability of mutual corroboration can be ruled out:  Livingstone v HM Advocate [2014] HCJAC 102  at para 14;  Reynolds v HM Advocate 1995 JC 142  at p146.  The Crown relied on mutual corroboration in this case.

[14]      The submission in the first ground of appeal was, essentially, that the conduct alleged in the second charge was materially different from that alleged in relation to the first because force was said to have been involved in one but not in the other.  The point seemed to be that the evidence of a complainer who describes her refusal to have sexual intercourse having been overcome by force cannot, it was said, be corroborated by evidence from a second complainer whose description of non-consensual intercourse does not involve force having been used to overcome her will. The man’s state of mind would, it was said, be different in each case;  in the latter the issue of whether or not he believed the woman to be consenting arises but it does not arise if the man used force.   The distinction being drawn was that if force was alleged, that meant that the man knew that the woman was not consenting whereas if force was not used, it would, rather, be a case of the man being reckless as to whether he had the woman’s consent or not.  If he had these different states of mind, it could not be said, according to the appellant’s submission, that his actions were part of a single course of conduct.

[15]      This aspect of the first ground of appeal is misconceived.  The crime of rape is not subdivided into two subsets - forcible and non-forcible rape. There is a single crime and it occurs when a man has non-consensual sexual intercourse with a woman in circumstances where he has the relevant mens rea.  That mens rea is unitary in character; it concerns a single concept, namely, the intention to have non-consensual intercourse with a woman knowing that she does not consent or being reckless (i.e. not caring) about that.  The fact that the presence of that intention can be established in two different ways – knowledge of lack of consent and recklessness regarding consent – does not mean that different criminal conduct is involved.

[16]      Further, the appellant’s approach proceeds on the assumption that actual knowledge that the woman is not consenting will be an aspect of every rape that involves force.  It also proceeds on the assumption that such knowledge cannot be an aspect of a rape which does not involve force.  Neither assumption is correct.  The man who uses force may be reckless when it comes to the issue of consent and where, for example, a woman is too frightened to resist so force is not required, the man may be very well aware that she is not consenting. Accordingly, where mutual corroboration is relied on, the course of conduct that needs to be demonstrated is simply that the man has non-consensual sexual intercourse with women in circumstances where he either knows they are not consenting or is reckless about that.  Force need not feature but if it does, it need not feature on every occasion for the relevant course of conduct to be established. Accordingly, no difficulty for Moorov purposes arises from the fact that the man is said to have used force in the case of one complainer but not, or not always, in the case of the other.

[17]      In these circumstances, even if it could be said that X described forcible rape whereas Y did not do so, those differences were not such as to deprive the jury of the availability of mutual corroboration if they accepted the evidence of both complainers.

[18]      Counsel for the appellant also submitted that the no case to answer submission should have been upheld because Y’s evidence did not in fact amount to a description of non-consensual intercourse having taken place.  Whilst her description was of a relationship that was marred by violence, her evidence lacked her having complained, prior to intercourse taking place, that she did not want it to happen.  Caution had to be exercised in the circumstances of a domestic relationship which included consensual intercourse.

[19]      It was not disputed that both women spoke to having been subjected to considerable violence at the hands of the appellant.  Nor was it disputed that X certainly spoke to having been forcibly raped on many occasions^[1] .  She described her experiences at some length;  her evidence can, perhaps, best be summarised in her own words which were that he would not “take no for an answer” (13B of process, at p88, line 10).

[20]      What was disputed was whether Y’s descriptions of what happened to her amounted to rape.  The submission was advanced, in particular, under reference to passages in cross examination where she had referred to giving in and having sex to avoid there being any violence^[2], where she said that he had not raped her^[3], and where she had agreed with a proposition put to her that a gap of 15 minutes occurred after violence before sexual intercourse occurred^[4].

[21]      This aspect of the first ground of appeal is, we consider, as misconceived as the first.  There was ample evidence given by Y of non-consensual intercourse taking place in circumstances where the appellant must have known she was not consenting or was reckless about that and it was open to the jury to believe her about that if they considered that it was appropriate to do so.  Examples of such evidence occur in the passages in Y’s evidence in chief referred to in footnote 5 below^[5] .  They included:

“ …on those occasions when you said you didn’t want sex and he got violent….Mm..hmm

….what happened then?

Well sometimes he would just get violent and batter me, and sometimes I would just give in because he was shouting, so basically he just, so I wouldnae have to go through all this, all the time, or that.” (13B p115 – 116),

and

“Okay.  And thinking about all the times this happened, were there ever times where you did end up having sex with him because of this violence? - ehm, not in Tollcross but in Shettleston I, I did, uh huh.”  (13B p131).

[22]      It was open to the jury to accept those parts of Y’s evidence which supported the allegation that non-consensual intercourse had taken place.  There was no basis on which the trial judge could have upheld the no case to answer submission on the basis suggested.  It was clearly open to the jury to decide that, when Y’s whole evidence was considered in context - rather than “cherry picking” one or two brief passages in cross - it amounted to an account of repeated occasions where no true consent had been given,as the appellant was well aware or about which, he was reckless.

The trial judge’s charge

[23]      This ground of appeal is not, we consider, well founded.

[24]      Counsel for the appellant submitted that the trial judge had failed to meet his obligation to direct the jury on the mens rea of rape: McKearney v HM Advocate 2004 JC 87 and that he had failed to direct the jury on how they should apply Moorov to each of the three elements of the crime of rape (penetration, absence of consent and mens rea) in the particular circumstances of this case.  It was suggested that he could have directed them to specific parts of each complainer’s evidence that were relevant to each component whilst reminding the jury what was said, by the defence, in answer to the allegations.

[25]      Where a judge decides to discuss the evidence in his charge, one of the criticisms that may arise is that, in doing so, he failed to strike a fair balance as between Crown and defence: Scott v HM Advocate 1946 JC 90.  It was not, however, suggested that this charge lacked balance.  If there is an omission in the charge, it may be said that the jury were, as result, misled or distracted:  Withers v HM Advocate 1947 JC 109 at 115.  It was not, however, suggested that the absence of discussion of where, in the evidence of the complainers, corroboration of the three elements of the charge might be found had given rise to any risk that the jury had been misled or diverted from their task.  Ultimately, the criticism amounted to saying that the trial judge could have directed the jury to specific parts of the complainers’ evidence when explaining corroboration and, in so doing, reminded them what was said by the defence about that evidence.  However, a miscarriage of justice is not demonstrated where all that is relied on is a judge’s failure to mention a particular point or points raised by the defence:  Snowden and Jennings v HM Advocate 2014 HCJAC 100  at paras 50 - 52.  The charge is not to be scrutinised as if the jury had not themselves heard the evidence and submissions of counsel as to its effect:  Withers v HM Advocate.

Sentence

[26]      The sentence imposed was criticised as not having given adequate weight to the appellant having only a minor record involving one previous conviction for which he was admonished, to his having been in employment and to his having concerns for the welfare of his daughter who had had to undergo medical treatment.  The previous conviction was in 2006 and related to his having removed a child of one of the complainers; counsel recognised that the circumstances of that offence amounted, perhaps, to a “double edged sword”.  The appellant had, however, had genuine concerns about the welfare of his daughter; he had resorted to litigation in the past.

[27]      It was accepted that an extended sentence was appropriate but its custodial part could, counsel submitted, be restricted.

[28]      We are not persuaded that the trial judge erred in his assessment of the appropriate sentence.  He considered that these offences were characterised by an escalation of violence linked to the appellant’s sexual demands, that there were multiple instances of serious physical and sexual abuse inflicted on the two complainers over two separate periods of three and eight months and four years and five months, that the complainers lived in fear of the next attack, that the rapes alleged were established and that the effects on the complainers had proved to be long lasting.  In all these circumstances, he was entitled to impose the sentence determined on.

[29]      This appeal is, accordingly, refused in all respects.