Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 126

HCA/2015/953/XC

Lord Justice Clerk

Lady Smith

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

ARCHIBALD PALMER

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McElroy; Patterson Bell      

Respondent: Edwards AD; the Crown Agent

26 November 2015

[1]        On 11 February 2015, at the High Court in Glasgow, the appellant was convicted of the rape of the 14 year old daughter of his then partner, with whom he had lived for many years.  On 9 March 2015, he was sentenced to 6½ years imprisonment.

[2]        The allegation was that, between 1 May and 7 June 2013, the appellant had entered the complainer’s bedroom, forcibly removed her clothes, held her down on her bed and vaginally raped her.  According to the complainer, the act of intercourse had lasted for some time, although she could not say whether the appellant had ejaculated.  After the incident, she had locked herself in the bathroom, and then gone to the flat of a neighbour.  She had been upset and crying, but had told her neighbour that that was because she had found out that her parents had been taking drugs.  The complainer did not return to live at the flat, but stayed with the neighbour for a period of two or three weeks before being placed into foster care.

[3]        On 19 August 2013, some time after the appellant and the complainer’s mother had also left the property, it was searched by the police.  Photographs of the complainer’s bedroom were taken and a duvet cover was recovered from the single bed.  The bed had had multiple layers of bed clothes.  The duvet cover had been underneath another duvet cover and a bed spread.  The complainer testified initially that she did not think that the first duvet cover had been on her bed at the time of the incident, but thereafter accepted that it possibly had been.  She did identify other items of bedding shown in the photographs as having been on the bed.

[4]        A forensic scientist identified semen traces with DNA matching the profile of the appellant on the duvet cover.  The sample contained a mixed profile with the DNA of three people, but the two major contributors were the complainer and the appellant.  The scientist was not able to say that the cells containing the complainer’s DNA had come from the complainer’s vagina.  That was one possibility, since they were likely to have come from either her skin or her vagina.  The conclusion in the forensic scientist’s report, which was spoken to during the course of the trial, was that one possible explanation for her scientific findings was that sexual activity had taken place as alleged by the complainer.

[5]        The appellant gave evidence that he had continued to live in the flat for some weeks after the date of the incident.  He stated that, on a number of occasions, he and the complainer’s mother had had sexual intercourse on the duvet cover, which would account for his semen being found upon it.  It was, he said, a spare cover which was quite often in the livingroom where he and his partner sometimes had intercourse.  He had not put the cover onto the complainer’s bed.  He was unable to say how it had come to be there.  It must have been put there by his partner.  Under cross-examination, he accepted that he viewed the complainer’s room as “sacred”; the implication being that he did not normally go into it, although he might have done so on occasion to give the complainer a telling off. 

[6]        The ground of appeal is that the trial judge erred in failing to sustain the submission that there was insufficient evidence.  First, the evidence about whether the duvet cover had been on the bed at the relevant time had been equivocal.  The forensic scientist could not say where the DNA from the complainer had come from.  The scientific evidence had been insufficient to corroborate the testimony of the complainer that penetration had occurred.

[7]        Secondly, it was accepted that the test to be applied was that in Munro v HM Advocate 2015 JC 1, but the appellant relied also on HM Advocate v Donaghy, unreported, 23 May 2014, Glasgow High Court, in which the Crown had similarly relied on forensic evidence recovered from a duvet within a house.   In that case, there was a mixed profile involving the DNA of the accused and the complainer, but Lord Turnbull had determined that the evidence had been insufficient.

[8]        In reply, the advocate depute submitted that there was sufficient evidence from which it could be inferred that the duvet cover had been on the complainer’s bed at the material time.  Given the association of the emission of semen with the act of sexual intercourse, it was sufficient corroboration of the complainer’s account of penetration.  The circumstances in Donaghy v HM Advocate (supra) could be distinguished.  

[9]        The complainer testified that she had been raped by the appellant on a bed in her own bedroom.  She had left the house that day and never returned.  Some weeks later a duvet cover was recovered from the bed, on which the appellant’s semen was found mixed with the DNA of the complainer, probably from her vagina or skin.

[10]      There was sufficient evidence from which the jury could infer that the duvet cover had been on the complainer’s bed at the time when the incident was alleged to have occurred.  That inference could be drawn from the finding of the cover there at the time of the search.  The remaining question is whether there was sufficient corroboration of the complainer’s account of sexual intercourse.  A piece of evidence is corroborative of testimony of a fact in issue if it can be said to support or confirm that testimony (Munro v HM Advocate 2015 JC 1, Lord Carloway at para [7] following Fox v HM Advocate 1998 JC 94, LJG (Rodger) at 100, Lord Gill at 124).  The corroborating piece of evidence does not, of itself, have to point exclusively to the fact in issue.  Each case will depend upon its own facts and circumstances.  This case is distinguishable from Donaghy v HM Advocate (supra) in respect that in Donaghy there was no evidence about which of the four beds in the house the duvet had been recovered from.  The recovery post-dated the alleged incident by at least 4 years and it was made in a different house in a different town from that in which the complainer alleged that intercourse had taken place.  The complainer’s evidence in Donaghy had been that no such cover had been on the bed at the time of the incident. 

[11]      Here matters are significantly different.  There is evidence that the duvet cover had been on the complainer’s bed at the material time.  The finding of the appellant’s semen, in-mixed with the DNA of the complainer, was indicative that there had been sexual activity involving ejaculation by the appellant on that bed.  That provided sufficient support or confirmation of the complainer’s evidence that penetration had taken place.

[12]      In these circumstances, the appeal must be refused.