APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Clarke Lord Brodie	[2012] HCJAC INFO Appeal No: XC669/11   OPINION OF THE COURT   delivered by LORD EASSIE   in   APPEAL AGAINST CONVICTION   by   CJN Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

Appellant: Shead; Angus McLennan & Co, Edinburgh

Respondent: Prentice, QC, Sol Adv, AD; Crown Agent

 

28^th August 2012

 

Introductory

[1] On 12 September 2011 at the High Court of Justiciary in Edinburgh the appellant was convicted, by a majority verdict, of a charge of rape. The terms of the amended libel of which he was found guilty are:

"on 31 July 2009 or 1 August 2009 within a common stair at Loganlea Place, Edinburgh you CJN did assault DMcG, c/o Lothian and Borders Police, Edinburgh and did push her on to the stairs, lie on top of her, insert your penis into her vagina and you did rape her all to her injury."

 

[2] Although leave to appeal was granted in respect of four grounds of appeal, after hearing the oral submissions in this appeal, the court came to the conclusion that two of those grounds had merit and that the conviction ought to be quashed upon those grounds. When intimating the decision that the conviction fell to be quashed, the court indicated that it would give a written exposition of those reasons at a later date. This we now do. The grounds which we consider to have force are grounds of appeal 2 and 3; both concern the directions given by the trial judge to the jury.

[3] Before discussing those two grounds it is helpful to endeavour to set them in context by setting out the circumstances of the case as summarised by the trial judge in her report.

"The evidence at trial was to the effect that Mr CJN was in a relationship with DMcG's best friend, NC. At the time of the incident Miss C was expecting a baby within a few weeks. She had tenancy of a flat and invited Mr CJN, Miss McG and a number of other young people to her home for a party. They were mostly teenagers.

 

According to the evidence Miss McG took drink with her to the house, as did various other people. While she was there she drank at least three quarters of a bottle of wine, on her own account. By the account of other witnesses she was very drunk and had much more than she said she had drunk. Miss McG attempted to have consensual sexual intercourse with one of the young men who was present but, due to his having had too much to drink, the attempt was unsuccessful. According to the evidence she was then lying in a bed with another young man but no intercourse happened there either. The evidence then was that Miss McG left the premises accompanied by two young men with a view to getting the last bus home. She said that she was feeling rather strange and that she thought someone might have spiked her drink. Consequently she went into a common stair, across the road from the house where the party was. She accepted in evidence that she had two sexual encounters, one with each of the young men with whom she had left the flat, although she said she could not remember the detail of what had happened. She said that she did remember that she was in the common stair, with her clothing off, when Mr CJN came in. She understood that he wanted to have sexual intercourse with her but because she knew that he was the boyfriend of her friend Miss C, she said that she was not prepared to have sex with him. He continued, notwithstanding her refusal, and achieved sexual intercourse.

 

Miss McG then left the common stair and went home in the company of other people who had been at the party.

 

The other young men said that Miss McG seemed to be a bit upset. They understood she and Mr CJN had had intercourse, and it seemed to be their position that Mr CJN should not have been having sex with Miss McG because he was the boyfriend of Miss C. Miss McG did not tell anyone that she had been raped until several weeks afterwards. She then told a friend who took her to see her older sister. She then told her sister what had happened.

 

Mr CJN pled not guilty and did not give evidence. There was evidence that he had admitted to Miss C that he had had intercourse with Miss McG, but he said that it was consensual."

 

 

Ground of Appeal 2

[4] This ground of appeal relates to what the trial judge instructed the jury respecting the evidence of "distress" which was before the jury. The evidence of the complainer's being distressed which was adduced by the prosecutor was in two chapters. First, there was the evidence of two of the young men in the group in which the complainer walked up the road after the events in the common stair. They spoke to the complainer being upset and to her saying "I can't believe I did that to my best pal" (although the complainer denied having made that remark). Secondly, there was evidence from a Ms F, to whom the complainer alleged, at least three weeks after the events, that she had been raped and showed some distress in that narration.

[5] The directions by the trial judge on this matter are contained within this passage in the transcript of her charge:

"Now, something has been said in the speeches about distress and what that can show you. I direct you that in this case evidence of distress seems to be that Ms McG was trying [sic-'crying'], when she was in the street with GA and with GP there or thereabouts, but not that she said it was because she'd been raped. There is a dispute about what she did say, that was highlighted to you by counsel. You'll recall that there was evidence from the young men that she said something to the effect of, 'I can't believe that I did that to my best pal,' whereas, as I recollect her evidence, she disputes that and said she didn't say that, but no one is saying that she said there and then that she had been raped.

 

Now there was distress exhibited when she spoke to her friend, Ms F, about three weeks later. Now that young woman was not the first natural confidant, because Ms McG had already spoken to her sister, DMcG, and she hadn't told her. And so it is part of the case that you have to weigh up, but you have to take it with all the circumstances that surround it. You have to take it with all the submissions that have been made to you by the advocate depute and by counsel. The evidence appears to suggest, ladies and gentlemen, that Ms McG did tell her friend she had been raped, she did tell NF that, but you have to take it with the evidence that shows that she didn't tell others, whom she might have been expected to confide in, nearer the time.

 

As has been said, you have to consider if her distress was caused by being raped or if her distress was caused by some other factor, such as shame or regret about what had occurred. You have to consider what you might see as a bit of paradox in this case, why would that young woman put herself before this court and tell you the various embarrassing things that she had to tell you? Her evidence was to the effect that while she's not proud of all that happened that night, she knows that she was raped, and she told Mr Nicolson [defence counsel] that, she told him that that's why she's saying this in court. But you have to weigh that up along with all that Mr Nicolson has submitted to you about her lack of credibility and reliability. You will recall the points he made to you about her not telling other people the same things that she has come and told you, and he relies on the evidence from the people who were there walking up the street with her, that she said that she couldn't believe that she had done that to her best pal. He says that's of relevance. Now, it's up to you, ladies and gentlemen, to weigh all of that up and to decide whether or not all of the evidence leaves you in any reasonable doubt"

 

[6] Counsel for the appellant submitted that those directions failed to give proper assistance to the jury as to the limited purpose which any relevant evidence of distress might serve. It was all "left in the air"; clear directions as to the limitations attaching to the use of distress evidence were required - particularly in a case such as this one, involving the feature of the relationship between the complainer and Miss C, and the appellant's relationship with the latter. Secondly, what was said by the trial judge respecting the evidence of Ms F was confused; the reference to a natural confidant employed the terminology, but did not explain the use, of a de recenti statement as a support of credibility; and did not address the issue whether distress in giving a narrative at a point in time so distant from the event could properly constitute evidence having any corroborative function.
[7] The advocate depute accepted that the directions given by the trial judge respecting this chapter were inadequate. We have to agree. We observe first that as respects the evidence of Ms F, the trial judge appears to conflate "natural confidant" - a matter relevant to de recenti statement as a possible assistance to the credibility of a complainer - with distress as a possible corroborative element. Secondly, while of course one cannot set a precise time limit on the admissibility of post-event distress as a potential corroborative element in cases of sexual offences, we are of the view that distress exhibited in offering an account of events at least three weeks after the event would normally - there may be exceptional cases of which the present case is not one - have little or no corroborative effect. Plainly distress in being precognosed, or interviewed by the police, at a distant point in time, or in giving evidence, could not be deployed as providing corroboration. The jury were not alerted to this aspect. More generally, such directions as were given by the trial judge must , or at least may well have, given the jury the impression that evidence of distress, at whatever stage in time, was generally available as corroboration of every matter which the Crown required to prove.

 

Ground of Appeal 3
[8] This ground of appeal concerns the directions given to the jury in relation to hearsay evidence led by the Crown of what the appellant said respecting the events to the witnesses from whom that evidence was led. In essence, the statements of which evidence was so given were "mixed" statements in which the appellant, while accepting that he had had sexual intercourse with the complainer, also explained that she had been agreeable, and had consented, to what had occurred. There is no issue but that the hearsay evidence thus led by the Crown constituted evidence of "mixed" statements.

[9] The directions given by the trial judge on this aspect of the case are to be found on pages 22 and 23 of the transcript:

 

"...and then there is evidence that Mr CJN said that [sexual intercourse occurred] to his friend, TK, and he also said it to his ex-girlfriend, NC. So there's evidence that Mr CJN, the accused person, had said in the past that he had sexual intercourse, and I direct you that evidence of what an accused person has said, which is against his interest, is admissible evidence and it's quite acceptable before you. So while you do have to find that sexual intercourse did happen that night between these two young people, you might not find it very difficult to hold that that happened because it's been admitted.

 

You then have to go on and consider the rest of it. Mr Nicolson is correct, of course, to say that Mr CJN's admission came with a qualification. He said to his two friends that he'd had sex but that it was with consent. Now, you've got to consider that that's what he said. It would be perfectly acceptable for the Crown to say that they are relying on the admission, that's what they do say, but you have to remember, as the Crown do, that the admission did come with a qualification; you can accept a part and reject a part, or you can accept both parts."

 

[10] Counsel for the appellant submitted that, while the technical accuracy of what the trial judge said, in so far as it went, was not open to question, it was necessary that the trial judge go further and tell the jury that they could treat the (hearsay) evidence of the appellant's having explained that the complainer had consented to what had occurred as being evidence which, if they accepted its truth, or if it were cause for any reasonable doubt, required them to acquit.

[11] We agree with the thrust of this submission. The jury in this case, in which the appellant did not give evidence but relied upon the extra-judicial statements led by the Crown, should have been directed - along standard lines- that they could properly take into account the evidence of what was said in all of the exculpatory parts of the appellant's reported statements as material, which if accepted by them as being truthful, or giving rise to any reasonable doubt, would dictate that they acquit the appellant.

[12] For his part, the advocate depute before us accepted that there were also evident problems respecting the adequacy of the trial judge's directions to the jury on this matter.

 

Conclusion

[11] In these circumstances we concluded that, taken at the least cumulatively, the misdirections were clearly of sufficient materiality that we could not hold that a miscarriage of justice had not occurred; the conviction accordingly fell to be quashed. It was therefore unnecessary for us to consider the other grounds of appeal, the last of which, given the view which we had formed on grounds 2 and 3, was not argued.