Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Clarke Lord MacKay of Drumadoon	[2009] HCJAC 64 XC470/08 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST CONVICTION by PAUL SINCLAIR FLYNN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Act: B. Gilfedder et S. Walker, Solicitor Advocates of Gilfedder Mcinnes, Edinburgh

Alt: Bain, QC; The Crown Agent

5 June 2009

On 7 March 2008 at the High Court in Edinburgh, the appellant was convicted of a charge of raping the complainer, ST, on 17 or 18 September 2007 at a flat in Slateford, Edinburgh. The libel included allegations that the appellant had compressed the complainer's throat, struggled with her, removed a set of keys from the locked door of the flat, pushed her into a bedroom, seized her by the hair, pushed her onto the floor, lay on top of her, removed her trousers and pants, kissed her, held her by the arms and raped her, all to her injury.

The main evidence in the Crown case came from the complainer. Regrettably the trial judge has not summarised that evidence for the court in his report and recourse had to be made to the whole contents of the 100 page transcript of her testimony. The circumstances, disclosed in that transcript, were that she lived on her own at the address in the libel. She was 19 years of age. She knew the appellant because he had babysat for her when she was about five years of age. She had not seen him for some considerable time before the incident, until a chance encounter in early September 2007, when she had been at a bus stop with her boyfriend. After meeting on a couple of occasions thereafter, she accompanied the appellant to meet her father in Leith on the date in the libel. They returned to the Slateford area at about 8 o'clock; the complainer going back to her flat. The appellant later called at the flat on the pretext of giving her a telephone which would match a new SIM card, which she had recently bought.

The appellant and the complainer were talking on a couch, whilst watching a DVD, when the appellant suddenly tried to kiss her. She pushed him off, but he persisted and eventually pushed her on to the floor, whilst putting his hand on her throat and, as the complainer put it, trying to strangle her. She told him that she did not want to go near him and was not attracted to him. She ran to the locked flat door, but the appellant took the keys from the door and put them in his pocket. She was screaming. He told her that he would punch her if she did not stop screaming. He pushed her into the bedroom. She jumped over the bed and tried to open, and then break, a window. He seized her by the hair, pulled her from the window and pinned her to the floor by sitting on top of her. He pulled her leggings and pants down to her ankles and tried to have intercourse with her. She tried to kick him off. He took his trousers off. She could not get him off and he succeeded in having intercourse with her for about two minutes to the point of ejaculation.

The appellant and the complainer both got dressed. She told him to leave, which he did, returning the keys to her. The complainer described herself as scared and shaking at this point. She 'phoned her boyfriend immediately and then called the police. She spoke to having injuries in the form of scratches to her neck and bruising to her neck, the top of her left arm, wrist and the top of her right leg, all as a result of the incident.

The potential corroboration of the complainer's evidence, as addressed in the Crown speech to the jury, came first from her distress. This was spoken to by her boyfriend, LF, whom she had phoned at about midnight. He said that she had been in a state of hysteria; crying "quite a lot". When the police arrived shortly thereafter, they confirmed that the appellant was crying and in a very distressed state. In addition, there was medical evidence from the local forensic medical examiner that, when she was seen at 4 am that morning, the complainer had a number of injuries. These were:

1. A scratch on her lower jaw;

2. A bruise overlying her thyroid cartilage;

3. An impact pattern bruise in the middle of her right arm;

4. A bruise on the front of her left arm;

5. A bruise on the back of her left forearm;

6. Four horizontal scratches on the front of her left wrist;

7. A scratch on the palm of her left hand; and

8. A red area over her right knee.

These injuries, the doctor said, were consistent with being grabbed.

The appellant denied at interview that he had met the complainer at all but DNA evidence confirmed that he had had sexual intercourse with the complainer and that matter was agreed by Joint Minute. The appellant did not give evidence.

The first Ground of Appeal raised is that the trial judge misdirected the jury on the issue of the corroboration of the complainer's account. The trial judge had given the jury a standard direction on the need for corroboration. He had told them that they could not convict unless they believed the substance of the complainer's evidence that she had been raped. Her evidence was of rape achieved by force. The trial judge directed the jury that the evidence of the complainer alone was not enough. There required to be evidence from an independent source pointing to the guilt of the appellant. He directed them that corroborated evidence was required on the two essential matters of whether a crime had been committed and whether the accused had been identified as the perpetrator. Since identification was not an issue, he directed the jury that corroboration was required of the complainer's evidence that she had been raped.

The trial judge directed the jury that the evidence from the boyfriend and the police about the complainer's distress was a piece of circumstantial evidence which could demonstrate not the detail of what had happened, but that the complainer had suffered a distressing event. This could corroborate her evidence about her state of mind at the time of the incident that she had not consented to intercourse. The trial judge also directed the jury that there were two separate strands of evidence available to provide the necessary corroboration. Not only was there this distress, but there were the physical injuries to the complainer, which supported her evidence that violence had been used against her.

The submission was that distress on its own could not corroborate the complainer's evidence that she had been raped, if it were not proved that force had been used. It was contended that the jury might have rejected the complainer's account of force yet still have accepted that she had not consented to intercourse. In that event, distress would have been available to corroborate that the complainer had not consented but it could not have provided corroboration of the appellant's knowledge that she was not consenting or his recklessness in that regard (McKearney v HM Advocate 2004 JC 87). It was accepted that the appeal could "only get off the ground" if the jury had been entitled to reject or ignore both the medical evidence and the complainer's account that what had happened, and had led to sexual intercourse, was that force had been used. In that situation it was submitted that the jury ought to have been given a direction that, if they rejected the evidence of force, they could not convict on the basis of corroboration from distress alone.

In response to that submission, and under reference to the cases of Smith v Lees 1997 JC 73, Gordon v HMA 2004 SCCR 641 and Spendiff v HMA 2005 JC 338, the Advocate Depute submitted that this was undoubtedly a case of forcible rape and that therefore the trial judge's directions were correct in respect that corroboration could come either from the distress or from the physical injuries.

This was a case in which the complainer maintained that she was subjected to sexual intercourse as a result of appellant's violence. In that type of situation, in terms of the Full Bench decision in Smith v Lees (supra), de recenti distress can afford corroboration of evidence that the complainer did not consent and that force had been used. The law, as it has been developed since Yates v HM Advocate 1977 SLT (notes) 42, was accurately set out by Lord Penrose, delivering the Opinion of the Court, in Spendiff v HMA (supra) at paragraph [30]. In that paragraph he said:

"Wherever there is independent evidence of de recenti distress, that evidence, along with the complainer's direct evidence will have instructed the jury's primary conclusion on the lack of consent. The same elements are, on the analysis in Yates, then available to establish force and, necessarily by inference, that the accused had mens rea of rape. The characterisation of the mens rea as an inferential fact in a common law crime is hardly surprising or unusual. It can seldom be anything else".

Once the complainer had been believed on the issue of force, the jury were entitled to use either the evidence of distress or the evidence of the injuries or both as corroboration of the use of that force, and thereby draw the almost inevitable inference not only that she was not consenting but that the appellant was aware of that fact, hence his use of force in the first place. Since it is clear from their verdict that the jury did believe that violence had been used, and indeed that injury had been caused, the appeal on this ground must fail.

The second Ground of Appeal is essentially that the trial judge presented the evidence to the jury in an unfair and unbalanced manner. This related to the trial judge's reference to the terms of the speech to the jury given by the solicitor advocate acting for the appellant. He said that a witness, MD, had said that, on an occasion a few days before the incident, the appellant had been caught "rubbing" the complainer's leg. There was another matter, which the trial judge dealt with in addition, in relation to the comments by the solicitor advocate about the existence of a scratch on the complainer's face.

Under reference to the cases of Harkness v HMA 2006 SCCR 342, Lord Abernethy at 347, and Shepherd v HMA 1996 SCCR 679, Lord McCluskey at 684 - 685, it was submitted that the trial judge had not presented a balanced account in singling out these two matters. The appellant complained that the trial judge had not put to the jury, for example, that there had been evidence from various witnesses that the complainer and the appellant were more than just friends, and, in particular, that there had been a flow of telephone calls and texts between them before the incident itself. There was also evidence from MD that activities on the previous occasion might have presented themselves to an observer as indicating that the appellant and the complainer were boyfriend and girlfriend. In addition, it was said that there was no specific reference made by the trial judge to defence medical evidence about the lack of petechiae relative to the allegation of strangulation and the absence of any fingertip bruising in relation to the allegation of forced rape.

This was a short trial lasting only some three days. As was said in Shepherd v HMA (supra), although it is usually appropriate for a trial judge to refer to the evidence in order to explain the application of the relevant law, it is a matter for him, in light of the conduct of the trial, to determine the extent to which it is otherwise appropriate to refer to the evidence in any detail. He may well require to correct a reference in a speech to the jury which does not accord with his own notes of the testimony given, even though recollection will ultimately be a matter for the jury to determine. But the fact that he does require to correct one or more references does not mean that he has to rehearse all the evidence linked to that reference. In a situation where either the Crown or the defence err in the presentation of the facts to the jury, the trial judge is entitled to, and in some cases bound to, correct the error if he considers it to be potentially materially misleading. In this case it is clear that the judge was not attempting to engage in a review of the Crown and defence cases; the content of which the jury had heard over the preceding short number of days. He was not attempting to present the evidence in an all encompassing manner.

When regard is had to the trial judge's references to the defence position, it cannot be said that there was any imbalance in the charge. In particular, the trial judge referred to that position in describing the defence mounting a challenge to the credibility and reliability of the complainer. He specifically directed the jury that they ought to consider what was said to them in the defence speech about that matter. He emphasised that the defence had focused upon the evidence about the number and circumstances of the appellant's previous contacts with the complainer. Having referred to the errors, which he perceived had been made by the defence, he returned to say to the jury that they should concentrate on the submissions by the defence about why they ought not to hold the complainer credible and reliable. Specific reference was again made to the prior contact between the complainer and the appellant in relation to the matters addressed in the defence speech. These references indicate that the trial judge did present this case in a balanced manner. The Ground of Appeal on this matter must also fail.

Finally, it was submitted that the trial judge had erred in his directions to the jury when referring to the medical evidence of injury. At one point in his charge he said: "I did not understand it to be disputed that these injuries were consistent with having been caused at the time of the rape". It is certainly true that it was inadvisable to use the word "rape". It would have been better to use a more neutral term such as incident or to refer to the rape as alleged. Nevertheless it is quite clear, in the context of the judge's charge as a whole, that he was not suggesting to the jury that he had formed the view that rape had actually occurred. He made it clear that it was a matter for them to determine.

In all these circumstances no miscarriage of justice appears to have occurred and the appeal is therefore refused.