Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 40

HCA/2015/003392/XC

Lord Menzies

Lady Dorrian

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL AGAINST CONVICTION

by

CRAIG PARKER

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Mitchell;  Adams Whyte, Livingston

Respondent:  Farquharson;  Crown Agent

13 April 2016

[1]        Craig Parker was convicted after trial in the High Court at Livingston on 23 September 2015 of a contravention of section 1 of the Sexual Offences (Scotland) Act 2009.

[2]        The complainer gave evidence, as explained to us by the trial judge in his report, that when they had been in the living room she had found the appellant to be somewhat creepy and he had been overfamiliar with her, touching her leg and trying to kiss her.  She had moved away from him when he had done this.  She had said she was tired and was allowed by Mr Sweeney to go to sleep in his double bed.  She thought that she had slept for a couple of hours before she got up and returned to the living room and sat with the others.  After a while she had felt unwell and had gone back to the bed.  She had no sexual interest in the appellant and she gave him no indication that she was interested in him in any way.  She was 21 at the time and understood him to be substantially older. 

[3]        When the complainer returned to bed she got under the covers and lay face down on the mattress.  She had on a dress and pants.  The appellant came into the room and got onto the bed.  He lay on top of her and began to take down her pants.  She could not believe that this was happening and did not react.  She hoped that by pretending to be asleep he would go away.  She found it difficult to explain why she had not physically resisted or called for help.  She had told a friend that she was frozen.  In her evidence she said that she had thought that pretending to be asleep would dissuade the appellant.  The appellant pulled down her pants to her knees and parted her legs with his hands as he lay on top of her back.  He penetrated her vagina with his penis for a short time and then he penetrated her anus.  He was thrusting into her anus for longer than he had been in her vagina.  This was painful.  He had withdrawn and she assumed from his movements that he had masturbated and ejaculated whilst he was sitting over her. 

[4]        There is no issue in the present appeal about the sufficiency of evidence of penetration nor of the complainer’s lack of consent; however, it was submitted to us today by Ms Mitchell that there was an insufficiency of evidence which would have allowed for a jury to consider by way of corroborated evidence that there was no reasonable belief held by the accused that the complainer was consenting.  The trial judge addressed the evidence in relation to the appellant’s state of mind at paragraph 12 and the following paragraphs of his report to us which we quote as follows:

“The complainer’s evidence that she was pretending to be asleep before and during the time which she was sexually touched and penetrated and that she said and did nothing to encourage the appellant to think that she was interested in having sex with him provided a source of evidence from which it could be inferred that the appellant lacked reasonable belief that the complainer was consenting to sexual activity with him. 

Miss Johnston and Mr Sweeney, who had been in the company of the complainer and the appellant in the taxi and in the flat, had not seen any indication that the complainer was showing any interest in being intimate with him.  Miss Johnston said that when the complainer had first gone off to bed they had been in the flat for a couple of hours and it was already getting light.  The complainer had appeared shattered and had asked if she could go to lie down.  Mr Sweeney had said that the complainer could go to his bed.  Miss Johnston had checked on the complainer on a number of occasions and had seen that she was sound asleep.  Miss Johnston was asked if she had spoken to either of the two men when the complainer had gone off to bed and she replied ‘I spoke to Craig and told him to keep out of her room.  I thought he was a creep and might have tried something on with her and I thought she might be in a vulnerable situation’.  He acknowledged the warning and said ‘I won’t.  I wouldn’t do that’.  In cross examination she clarified that her exact words to the appellant had been ‘Keep out of that wean’s room’.  Whilst this was the first occasion when the complainer had gone to bed and she had returned to the living room Miss Johnston and Mr Sweeney had not observed any developing romantic or sexual interaction between the appellant and the complainer thereafter.  Given how much the complainer had had to drink, spoken of by Miss Johnston and others, and that the complainer had been up for much of the night, it might be expected that she would be going off to sleep when she left the living room to go to bed on both of the occasions when she did so.  Miss Johnston said that as the complainer made her way to the bedroom for the second time she said that she was not feeling well, although Miss Johnston was not able to confirm whether the appellant was in the living room when that was said.”

[5]        The trial judge summarised the argument in support of the submission of no case to answer at paragraphs 18 and 19 of his report and the factors which were relied on by the advocate depute in reply at paragraph 20.  Those factors were the amount the complainer had had to drink, the time when the rape must have happened given that the complainer had been awake for much of the night following a lengthy period of drinking, the absence of any prior relationship between the parties, the gap in their ages, an inference from the forensic findings that no condom had been used, evidence that the complainer had earlier been asleep for about two hours, evidence that she had been heard to say that she was not feeling well before she went to bed the second time and, in particular, evidence from Miss Johnston to the effect that when the complainer had first gone to bed, the appellant had acknowledged that he should not be going near her.  This conversation permitted the jury to infer that at least at that stage the appellant knew that this was not a situation where he could reasonably believe that the complainer would consent to sex given that there was no evidence of any subsequent change in the interactions between the appellant and the complainer.  Miss Johnston’s evidence about that conversation remained relevant to the jury’s assessment of the appellant’s state of mind.  The trial judge explains his decision on the submission at paragraph 21 of his report as follows:

“Whilst the circumstances of this case did not fit neatly with those of any of the reported cases to which I was referred, I was satisfied that at its highest there was a body of evidence coming from more than one source which permitted the inference that the appellant had no reasonable belief that the complainer was consenting to sexual intercourse or indeed any sexual activity with him.  The complainer’s evidence was that she was giving the appearance of being asleep such that the appellant could not reasonably have believed that she was consenting to any sexual conduct.  Notwithstanding that the conversation with the appellant, spoken of by Miss Johnston, took place when the complainer first went to bed, I considered that on the evidence of Miss Johnston and Mr Sweeney the jury was entitled to conclude that there was no material change of circumstances in the period after.  Accordingly, the appellant’s acknowledgement in response to Miss Johnston’s warning that he would not go into the room where the complainer was remained relevant to instruct the jury as to his state of mind when he sexually penetrated her, it being her evidence that she was not consenting and was giving the appearance of being asleep.  The jury had available amongst the adminicles identified by the advocate depute a number of other circumstances which formed the background to their consideration of this issue.”

[6]        We consider that there was ample evidence to enable the trial judge to reach the conclusion which he did and we can find no error in his reasoning, nor in his subsequent charge to the jury.  Understandably and quite properly Ms Mitchell departed from the suggestion made in the note of appeal and in the case and argument for the appellant that what required to be corroborated was that the complainer was pretending to be asleep.  That suggestion is misconceived.  What Ms Mitchell submitted was the proper question was whether there was sufficient evidence to enable the jury to conclude that the appellant had no reasonable belief that the complainer was consenting to what he was doing to her.  We agree that this is the proper question in this case.  Having regard to the various adminicles already referred to we have little difficulty in the circumstances of this case in answering that question in the affirmative and accordingly this appeal must be refused.