Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 68

HCA/2015/654/XC

Lord Justice General

Lady Paton

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE

by

ANDREW JOHN MILLER

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Allan QC; Wilson McLeod

Respondent: Erroch AD; the Crown Agent

3 August 2016

Introduction
[1]        On 16 January 2015, at the High Court in Edinburgh, the appellant was convicted of 6 charges, from a total of 16 on the original indictment.  These, in terms of the ultimate verdicts of the jury, were as follows:

“(1)      on various occasions between 1 January 1998 and 29 October 1999 ... you ... did assault [PG] ... and threaten her repeatedly, punch, kick and strike her on the head and body and slap her on the head and body, pull her hair and drag her by the hair to her injury;

(6)        ... various occasions (sic) ... between 30 October 1999 and 16 July 2013 ... you ... did assault [KM] and threaten her with violence, threaten to kill her and threaten to take her children away from her, pull her hair and drag her by the hair, strike her head against a stationary motor vehicle, force her into a motor vehicle, repeatedly punch, kick and strike her on the head and body and slap her on the head and body, seize her by the neck, attempt to strangle her, flick a lit cigarette at her causing it to strike her on the head and to burn her to her injury and punch her on the head causing her to strike her head against a wall to her injury;

(7)        on various occasions between 1 January 2002 and 31 December 2004 ... you ... did assault [KM] and push her lower clothing aside, place your arm around her, pull her towards you and penetrate her vagina with your penis and you did thus rape her;

(8)        on an occasion between 1 January 2005 and 31 March 2006 ... you ... did assault [KM] and pull her onto her back, threaten her with violence, force her legs apart, push her lower clothing aside and penetrate her vagina with your penis and did thus rape her to her injury;

(9)        on 9 May 2011 ... you ... did assault and abduct [KM] ... seize her by the body, push her to the floor, rip her trousers off, punch her on the head, penetrate her vagina with your hand, present a knife at her, cut and remove her top and bra with a knife, place your hand over her mouth, push her to the floor, threaten to kill her, again penetrate her vagina with your hand and attempt to push your penis into her mouth, place a knife against her neck, and punch her on the body causing her to fall onto the floor, lock the door and detain her against her will for several days, deprive her of food and repeatedly punch and slap her on the head and body to her severe injury: CONTRARY to sections 2 and 3 of the Sexual Offences (Scotland) Act 2009 and the common law.”

Charge 9 had originally been framed in the alternative because of an uncertainty about the date of the alleged offence relative to the coming into force of the 2009 Act.  The first alternative had been a charge of common law assault, abduction and rape over a period prior to the coming into force of the Act.   The first alternative was deleted at the end of the Crown case.  The second alternative, which went to the jury, included the same libel of assault and abduction, but this time the rape and penetrative sexual assault were libelled as contrary to sections 1 and 2 of the 2009 Act, over the period 9-11 May 2011, after the Act came into force.  The jury returned a verdict of guilty simpliciter on this alternative.  However, they had been directed that the only corroboration of the evidence of rape, as spoken to by the complainer on charge 9, came from the complainer on charge 2, another rape charge involving the same complainer as in charge 1.  The jury had returned a verdict of not proven on that charge, so that the rape elements in the conviction on charge 9, at least, could not survive. 

[2]        The case was adjourned overnight to enable parties to consider the position.  The following day, the advocate depute and the appellant’s counsel presented the judge with a fait accomplis regarding the appropriate verdict to record on charge 9.  The judge, agreeing with counsels’ approach, directed the jury to return an amended verdict in the terms set out above.  At the hearing of the appeal, neither the appellant nor the respondent could explain why agreement had been reach in these terms, given that, from the appellant’s perspective now, there was no corroboration of the sexual elements of the libel. 

[3]        The final charge (10) was the breach of bail conditions, by sending the complainer KM messages on a social networking site, contrary to section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995.

[4]        On 12 February 2015, the appellant was sentenced to 6 months imprisonment on charge 1.  An extended sentence of 10 years (with a custodial element of 8 years) was imposed in respect of charges 6, 7 and 8.  On charges 9 and 10 a cumulo sentence of 3 years imprisonment was imposed, to run consecutively to the sentence on charges 6, 7 and 8. 

[5]        This appeal raises an issue about the adequacy of the trial judge’s directions on rape and in particular the requirement that penetration, as an essential element, requires to be corroborated.  It is also maintained that corroboration of charge 9 was not available, given the appellant’s acquittal on charge 2. 

The evidence
[6]        In relation to the evidence, each offence in charges 1 and 6 to 9 was perpetrated against a woman with whom the appellant had been living.  The evidence on charge 1 came from the complainer, PG, who spoke to the terms of the libel.  The evidence on charge 6, which involved physical assaults on KM, again came from the complainer, who spoke to the various elements in that charge.  No issue was taken with the convictions on these two physical assault charges.

[7]        There were only two incidents of rape on each of charges 7 and 8 spoken to by KM, but they both had the same distinctive feature.  On charge 7, KM gave evidence that the offence had been committed in a bedroom which was occupied not only by the complainer and the appellant, but also by a friend of the complainer’s mother, namely LD.  It was KM’s testimony that, in the course of one afternoon, when she and the appellant had been under a duvet and she had been talking to LD, she felt her shorts being pulled aside.  The appellant grabbed her by the stomach and had sexual intercourse with her against her will.  She said that it had been neither the time, nor the place, for having sex, given the presence of someone else in the room.  She had made this clear to the appellant, but he had continued.  The intercourse had not lasted for very long. 

[8]        LD said that, although the incident did take place in the bedroom which she had been sharing with KM and the appellant, it had occurred in the middle of the night.  She had heard KM say, “Dinnae.  [L] is in the next bed”, to which the appellant had replied, “If I want it, I’m getting it” or “I’m going to take it”.  She said that the appellant had then “started sex”, which she could tell was happening because of the noises which went on for a couple of minutes, followed by the complainer crying. 

[9]        Charge 8 involved a similar situation, but this time with KM’s mother (namely JL) staying in the bedroom used by KM and the appellant.  KM had said that the appellant had asked her for sexual intercourse, but she had refused because of the proximity of her mother.  The appellant was not “taking no for an answer”.  He had prised her legs apart and penetrated her. 

[10]      JL gave evidence, with the assistance of statements which she had made to the police, to the effect that she had woken up to hear her daughter saying, “No, my mum’s here”.  The appellant had said, “Just do it, open your legs”.  The appellant had said, in response to KM’s “no”, “You f...ing will, it’s my marital rights”.  She too spoke to hearing the sounds of a mattress and headboard banging against a window ledge more than a few times.

[11]      It was the appellant’s position in evidence that he had not had sex, whilst either LD or JL had been in the same room. 

[12]      On charge 9 the complainer KM spoke to the elements of the libel.  The appellant accepted that he had assaulted the complainer on this occasion, but denied that there had been any sexual aspect to it.  The extent of his admissions were to seizing KM and punching her three or four times in the ribs. 

Charge to the jury
[13]      The trial judge gave the jury the standard directions on corroboration.  He stated in particular that the jury required to be clear that:

“Corroboration is required for essential elements of the charge or the charges but every incidental detail of a charge such as the narrative of how the crime was committed, doesn’t need evidence from two sources.  There are, however, two essential matters that must be proved by corroborated evidence and these are that the crime charged was committed and, secondly, that the accused was responsible for committing it”.

In relation to the rape charges in particular, he stated, in line with the Jury Manual, that:

“The crime of rape is committed when a man has sexual intercourse with a woman without her consent, where he has no genuine belief that she was consenting.  ... There are several matters that you have to be satisfied about.  First, there must be penetration of the victim’s vagina by the accused’s penis. 

... Second, the intercourse must have been without the complainer’s consent and that must be proved by corroborated evidence. 

... Third, the Crown must prove by corroborated evidence that the accused intended to have intercourse with the complainer, either knowing or believing that she wasn’t consenting or reckless as to whether she was or not. 

... Fourth, even if you believe the complainer that she didn’t consent, you’ve still to consider whether or not the accused honestly believed she was consenting.  An absence of honest belief that she was consenting is essential and that’s to be proved by corroborated evidence.  If the accused believed she was, he is not guilty of rape.  It doesn’t matter if the grounds for that belief are mistaken.  If there were reasonable grounds for believing that she consented, it may be easier to accept the accused did believe that.  If you didn’t think that the grounds were genuine but if you thought the belief was honestly held, you have to acquit.  It’s not an honest belief if you acted without thinking or if you didn’t really care whether she was consenting or not”.

[14]      The trial judge had given the jury directions on the definition of rape under section 1 of the Sexual Offences (Scotland) Act 2009, for the purposes of charge 9.  He said that there were three things:

“Intentional or reckless penile penetration, lack of consent by the complainer and the absence of reasonable belief by the accused that she consented, all have to be proved by corroborated evidence.

The other elements in the charge are descriptive only ... and they don’t require to be corroborated.”

In relation to consent, the judge directed the jury that, if the accused said that he believed there was consent, that was a defence if it was a reasonable belief.  Having an honest belief was not enough so far as the statutory contravention was concerned.

[15]      In relation to what were penetrative sexual assault elements in charge 9, the trial judge again said that intentional or reckless sexual penetration, as well as the absence of reasonable belief in consent, all had to be proved by corroborated evidence.  The other elements in the charge were, as with rape, descriptive only and did not require corroboration.

Grounds of appeal and submissions
[16]      The first ground of appeal is that, although the trial judge gave the jury the directions in relation to rape which were recommended in the Jury Manual, those directions were deficient in that there was no specific mention of the need to corroborate the act of penetration, being the first element mentioned.  This failure was material.  Its effect may have been that the jury did not realise that corroboration of penetration was required.  The corroboration of penetration in respect of charges 7 and 8 had come from the eyewitnesses, whose evidence had been challenged.  A subsidiary point was raised that the trial judge had wrongly stated that the Crown required to prove that the appellant had had “no honest belief”.  The correct direction ought to have referred to “no reasonable belief”.  Although it might be said that the misdirection was favourable to the appellant, the danger was that the jury would have been confused as to exactly what was required. 

[17]      The second ground of appeal was the absence of corroboration of the sexual elements of charge 9, once the appellant had been acquitted of charge 2.

[18]      The Crown submitted that there had been no material misdirection on the need for corroboration of penetration.  The charge required to be read as a whole.  The jury had been directed that corroboration was necessary for the essential elements of the charge.  They had been directed that penetration was such an essential element.  It therefore required to be corroborated.  It would have been illogical for the jury to have thought otherwise. 

[19]      In relation to honest belief, the direction had been favourable to the appellant and no miscarriage of justice could have resulted.  In any event, no direction on reasonable or honest belief was required given the circumstances in which the complainer had spoken to forcible rape and the appellant had maintained that no sexual intercourse at all had happened at the material time.

[20]      The appellant had been convicted of an assault, including various acts, such as the penetration of the complainer’s vagina.  It was conceded by the Crown that, although a conviction for common law assault could follow, and the separate elements did not require to be corroborated (Campbell v Vannet 1998 SCCR; Munro v HM Advocate [2010] HCJAC 78), the sexual elements did require separate corroborated proof (see Tait v HM Advocate 2015 SCCR 308). 

Decision
[21]      The trial judge’s directions, when read as a whole, were adequate.  He told the jury that the essential facts all required to be corroborated.  He stated that one of the essentials was having sexual intercourse with the complainer without her consent.  He said that that required to be proved by corroborated evidence.  This must have been relatively obvious to the jury in any event.  There was no possibility that the jury could have doubted that penetration of the vagina with the penis, which is, or was at the time, the definition of sexual intercourse, required to be corroborated. 

[22]      Corroboration had to come from the two persons who had been present in the bedroom at the time when the rapes are alleged to have occurred.  The jury must have accepted the testimony of both of these witnesses in order to convict of either charge 7 or 8.  Having done so, the jury were entitled to find that there was indeed corroboration of penetration. 

[23]      The direction on honest, as distinct from reasonable, belief was entirely in the appellant’s favour.  No miscarriage of justice could have occurred.  In any event, no direction on this topic was required, standing the two contrasting accounts from the complainer and the appellant.  It had not been suggested that this was a case in which there was room for an honest or a reasonable belief.

[24]      The corroboration of the physical aspects on charge 9 was adequately provided by the appellant’s admission that he had assaulted the complainer physically.  It is conceded by the Crown that the sexual elements on charge 9 could not have been corroborated once the appellant had been acquitted on charge 2.  There was also no corroboration of an abduction and also an anomaly in respect that the conviction relates to events on one day, whereas the narrative refers to a period of days over which the complainer was allegedly kept in detention.  In these circumstances, in respect of charge 9, the court will delete from the conviction the words “and abduct”, “rip her trousers off”, “penetrate her vagina with your hand”, “cut and remove her top and bra with a knife”, “again penetrate her vagina with your hand and attempt to put your penis into her mouth”, “lock the door and detain her against her will for several days, deprive her of food” and, finally, “contrary to sections 2 and 3 of the Sexual Offences (Scotland) Act 2009 and the common law”.  This leaves a conviction for common law assault in the manner remaining in the libel.

Sentence
[25]      In light of the deletions to charge 9, the sentence requires to be reduced.  The court will impose a sentence of 12 months imprisonment on that charge.  The second matter requiring consideration is whether it was appropriate to order the sentence on this charge to run consecutively to the custodial term in respect of the remaining charges (6, 7 and 8) relating to this complainer.  The trial judge reasoned that the offence in charge 9 took place some five years after the date “last libelled”, meaning the date libelled in charge 8.  However, charge 6 contains a libel which encompasses that on charge 9.  In these circumstances, since the offence was part of a single course of conduct, the court will order that that sentence ought to be concurrent with the extended sentence on charges 6 to 8.

[26]      This leaves charge 10, which is a separate offence of breach of bail, upon which the trial judge had originally imposed a cumulative sentence exceeding the statutory maximum of 12 months.  The court will substitute a sentence of 12 months on that charge.  This is a separate matter and will run consecutively to the other custodial periods.