Appellant: Wheatley, Q.C.; Paterson Bell, Edinburgh

Respondent: Prentice, Q.C. A.D.; Crown Agent

3 February 2010

Introduction

On 30 October 2008, the appellant was convicted after trial in the High Court in Edinburgh of a charge of rape. The conviction was in the following terms:

"On 3 and 4 October 2007 at (an address in Kirkcaldy) you did assault R. S., c/o Fife Constabulary, Kirkcaldy, and did pull her pants, repeatedly make indecent comments to her, place a knife against her throat, compel her to unfasten your trousers and to handle your private member, repeatedly compel her to put your private member in her mouth, push her on the body and force her into a bedroom, compel her to remove her trousers and pants, repeatedly threaten to penetrate her hinder parts with your private member, repeatedly lick her private parts, kiss her on the head and body, suck her neck, handle her body, compel her to sit on top of you, insert your private member into her private parts, all to her injury and you did rape her."

The appellant was subsequently sentenced to 8 years imprisonment.

The appellant went to trial having lodged a special defence of consent. The Crown led evidence from the complainer; Mrs. J. C. (a neighbour of the complainer); T. S. (the complainer's father); PC David Dalgleish (who had responded to a call received from Mr. S's house); PC Kevin Davidson (who had detained the appellant); Dr. Kranti Hiremath (who had medically examined the appellant and the complainer); DC Iain Geddes (who had interviewed the appellant under caution); and Yvonne McLaren (a forensic scientist). The appellant gave evidence and a defence witness, Professor Anthony Busuttil, was called at the request of the defence during the Crown case.

Grounds of appeal

The appellant's appeal against conviction proceeds on two grounds:

"(1) The Temporary Judge misdirected the jury in his charge when dealing with the issue of corroboration of the complainer's evidence. At page 13 of the charge the Temporary Judge directed the jury that the jury could use evidence given from both the complainer and the appellant that a chair had been put against the front door of the flat. It could be used to find corroboration both that the complainer was not consenting and the appellant knew that (lines 2-15). This was a misdirection given that the Crown did not libel such an act, the Crown did not move to amend the charge to include this act nor did the advocate depute suggest that this evidence was being relied upon to provide corroboration; as a result this direction should not have been given to the jury. The misdirection was material and prejudicial to the appellant.

(2) The Temporary Judge misdirected the jury at page 19 line 13 to page 20 line 7, the said direction related to the evidence of J.C. Mrs. C. was the first adult person the complainer spoke to after the incident. At the time the complainer displayed signs of distress. Mrs. C. gave evidence that there was something not quite right or strange about her time with the complainer.

The Temporary Judge had commented upon this evidence. The jury was directed: "Well what did she mean by that? Did we ever get to the bottom of what she meant by that ... How much does she know in any event?" The Temporary Judge then directed the jury regarding various hypotheses about what the witness could or would have known at the time. The jury were directed that they ought to be careful about how much significance they should attach to an impression yet the evidence was clear that Mrs. C. felt something was strange and not quite right about the behaviour of the complainer. The said directions were not balanced and suggested that the witness' impression may be based on less complete information than the jury had and as a result the jury should be careful about the significance of the impression. Such a direction must be balanced against the Crown's reliance upon the evidence of the witness Mrs. C. regarding the distress of the complainer yet there was no direction that care should be taken when considering the issue of distress as spoken to by Mrs. C and her impression of the distress. The misdirection was material and as result there has been a miscarriage of justice."

A third ground of appeal was not argued.

The evidence at the trial

The trial judge has provided a full summary of the evidence before the jury. In her evidence, the complainer explained that she and the appellant had been neighbours in a block of flats. They had not known each other particularly well until a few days before the date of the rape. The appellant had called at her flat the previous Sunday evening (30 September 2007), to inform her that she had left a key in a shed in the common stairway. Subsequently the complainer and her 9 year old daughter had visited the appellant's flat. Over the next few days the appellant and the complainer had exchanged text messages, some of which had been of a flirtatious character.

During the evening of Wednesday 3 October, the appellant visited the complainer at her flat. He did so by prior arrangement. They spent several hours happily enough. Some wine was drunk and some cannabis was smoked. They ended up having an arm-wrestle in the living room and the complainer agreed that if the appellant won she would kiss the appellant, which she did. However in evidence she said that when the appellant had tried to kiss her again she had indicated to him that she did not want that to happen. She had pushed him away and then everything had changed. The appellant became very different and aggressive. He left the living room, apparently to go to the toilet. When he returned, however, he was carrying a knife, belonging to the complainer, which he placed against her throat. He then proceeded to assault her in the manner detailed in the charge of which he was convicted.

According to the complainer, at some stage, before intercourse, the appellant had sought her house keys. She had been unable to provide him with them. When he could not find them, the appellant had placed a chair against the inside of the front door of her flat. When the appellant came to give evidence he was asked about the chair. He offered the explanation that he had placed the chair against the door because he was afraid of the complainer's former boyfriend, who, so far as he knew, had still been her boyfriend.

During her evidence the complainer indicated that around 04.00am, she had explained to the appellant that her daughter got up around 04.30am. She asked the appellant if she could go and see her daughter. She then took the child to the toilet. When they came out of the toilet, she picked up her daughter and ran out of the flat to a neighbour's house, whilst the appellant remained in her bedroom. On arrival at the neighbour's house (Mrs. C.), the complainer banged on the door and the window. She was invited in, and remained there between 20 and 30 minutes. In her evidence the complainer described having been numb, whilst she was in her neighbour's house. She had not contacted the police from there, as she was scared, wanted to get away and wanted to call her boyfriend first. The complainer then went back with her neighbour to her own house, to get her car keys. She then drove her daughter and herself to her father's house, where, at her father's suggestion, the police were contacted.

Mrs. C. gave evidence that she had been woken around 04.00am by the complainer banging on her bedroom window. She went out to find the complainer in her garden looking upset. She took the complainer and her daughter into her house. She described the complainer as seeming to be upset and being white in colour. The complainer had sat down with her arms around her daughter and had said - "They will say it's my fault." The complainer had mentioned Ian, who Mrs. C. knew as a neighbour. The complainer had then wanted her car keys and her mobile phone. She and the complainer had gone to the complainer's flat to retrieve them. The complainer had opened a drawer in the kitchen and stated "That's the knife." In the course of her evidence Mrs. C. adopted parts of a police statement in which she had indicated that the complainer had said "and he had a knife" and had described the complainer as being "shocked and clinging to her daughter shaking".

During cross examination of Mrs. C., it was put to her that the encounter with the complainer had been a little strange. She agreed. She explained that the complainer had never mentioned the word "rape" to her. Mrs. C. adopted, as part of her evidence, a further passage in her police statement where she had said "the whole thing seems a bit strange". It was put to her that in her mind something was not quite right and she agreed. During re-examination she was asked further questions about the "strangeness". She said that she did not know that the appellant and the complainer had been together. It was strange to her. The complainer had a boyfriend. The trial judge noted Mrs. C. as having said "It was an eye opener to me when she spoke about Ian and her. I was incredulous. I could not believe it."

The jury heard further evidence as to the distressed state of the complainer from her father and PC David Dalgleish.

PC Kevin Davidson gave evidence that when the appellant had been detained at his own house, at 06.30 hours on 4 October 2007, he had replied that he did not know what the police were going on about. He stated he had been downstairs at a friend's house and had had a couple of bottles of wine.

DC Iain Geddes gave evidence as to the police interview of the appellant. The appellant stated during that interview that he had had consensual intercourse with the complainer. She had then disappeared, so he had gone home and had been woken up by the police battering on his door. In the course of the interview the appellant said that he had been in the kitchen getting a corkscrew and might have touched things in the kitchen drawer, such as knives and forks. He denied having had possession of a knife or threatening the complainer with one. He explained that he has a fascination for knives and that if he sees a nice knife he picks it up to test its balance. However he said that he could not remember if he had picked up a knife in the complainer's house.

Yvonne McLaren, a forensic scientist, gave evidence of having tested a kitchen knife recovered from the complainer's flat for DNA. The blade of the knife had been swabbed, and both female and male DNA extracted from the swab. Yvonne McLaren gave evidence that it was a billion times more likely that the female DNA recovered related to the complainer rather than an unrelated female and fifty-five million times more likely that the appellant was the source of the male DNA than an unrelated male was.

The appellant gave evidence. During the course of his evidence he spoke of having been in the complainer's house on the evening of Sunday 30 September. During the course of the evening he had picked up a knife in the kitchen and had asked the complainer if she had got it from IKEA. He had left her flat around 02.00am. There had been no kissing and cuddling. He confirmed that in the days thereafter various text messages has passed between him and the complainer. On the evening of Wednesday 3 October he had bought cigarettes for her and had taken them and two bottles of wine to her house. His account of the evening was that nothing amorous had happened between them in the living room but at one stage he had gone to the bathroom.

The appellant gave evidence that when he had come out the bathroom he had been met by the complainer who had made a joke about the size of his penis. She had begun kissing him and they had ended up in the bedroom. The appellant explained that he had wanted to make sure that the front door of the flat was locked, because the complainer had told him that her former boyfriend still had a key. The complainer had said that she did not know where her own key was. The appellant had then gone and got a chair from the living room and put it behind the front door of the flat. On his return to the bedroom consensual intercourse had taken place. The complainer had then gone to the bathroom. The appellant said that she seemed to have been in the toilet for an eternity, so he had gone home, where he was subsequently awoken by the police.

Submissions

In respect of the first ground of appeal, Mr. Wheatley, Q.C., the solicitor advocate who appeared for the appellant, argued that the trial judge had erred in the directions he had given at page 13 lines 2 to 15 of his charge. At this part of his charge the trial judge had been dealing with possible sources of corroboration of the complainer's account that threats had been used against her and that she had not consented to intercourse. After directing the jury as to the evidence relating to the recovery and forensic examination of the knife, the trial judge said:

"However another possible source of corroboration is this. The accused has acknowledged having put a chair in the inside of the door before intercourse took place, he said that in evidence before you, just as the complainer herself had said he did. And from that evidence coming from him you could find corroboration both that she was not consenting but also that he knew that. If you accept the part of his evidence where he says he put the chair against the inside of the door but before you could use this as corroboration you would have to reject his explanation as to why he did it because he offers an innocent explanation for that. He said that it was fear of Andrew that caused him to barricade the front door with a chair before intercourse took place and you will remember all the things he said about that in his evidence".

Mr Wheatley argued those directions had invited the jury to speculate. He submitted that it had not been opened to the jury to draw any inference adverse to the appellant from the evidence which the appellant had himself given about the chair. It had not formed any part of the charge against the appellant that he had used a chair to barricade the complainer within her flat, or anyone else from entering the flat. Nor indeed had the complainer suggested that he had done so, when she had given evidence. The Advocate depute had not sought to rely on the evidence relating to the chair as a source of corroboration of any of the essential elements of the complainer's evidence. For those reasons the appellant's actings with the chair could not have been viewed by the jury as constituting a threat against the complainer, and as evidence of her lack of consent; nor could they have provided evidential support of knowledge on the part of the appellant that the complainer was not consenting to sexual intercourse.

Turning to the second ground of appeal, Mr Wheatley stressed that all the evidence the jury heard relating to the knife had been of significance to the issue as to whether or not the complainer had consented to intercourse. It would have been necessary for the jury to have looked at all of that evidence in detail. That included the evidence given by Mrs. C, who had spoken to a knife having seen in a kitchen drawer and the complainer having said "That's the knife." However it had also been of significance that the knife having been found in a drawer in the kitchen and there had been no blood on the knife, despite the fact that the complainer had sustained an incised wound on the inner aspect of her lower right leg. Nor had there been any cuts on the complainer's trousers.

As far as the evidence of Mrs. C was concerned, Mr Wheatley explained that his criticisms of the approach taken by the trial judge related to what the trial judge had said between page 19 line 13 and page 20 line 5 of the charge. Having explained to the jury the importance of having regard to all of the evidence together rather than just looking at bits of in isolation, the trial judge had continued:

"And for this same reason you are not bound by the impression formed by a particular witness, although of course you are free to take it into account. J. C., the neighbour, may have agreed with a question put to her that it felt as though there was something not quite right or that something was a bit strange about the episode with the complainer. Well, what did she mean by that? Did we ever get to the bottom of what she meant by that, it's a matter for you to consider. But how much does she know in any event. In the early hours when she encountered the complainer she didn't know, couldn't have known at the time, that the accused would later admit having had intercourse with the complainer. Nor could she know that DNA matching his to a 55 million to 1 degree of probability to put it simply would be found on the knife. So whilst you are quite free to take account of her evidence you ought to be careful about just how much significance you attach to an impression which may be formed on the basis of rather less complete information that you the jury have."

Mr Wheatley described that passage of the charge as having contained warnings as to the care the jury ought to exercise before attaching significance to certain parts of Mrs. C.'s evidence upon which the defence had sought to rely. That compared with what the trial judge had said, on pages 15 and 16 of the charge, when dealing with the Crown's reliance on Mrs. C.'s evidence. In these circumstances, the trial judge had not been even handed. Furthermore, the trial judge had given a clear indication of his own views as to what should be taken from certain parts of Mrs. C.'s evidence. The passage between pages 19 and 20 included misdirections which had to be considered against the limited amount of corroboration of the complainer's evidence which was available.

In the whole circumstances the misdirections of the trial judge had led to a miscarriage of justice.

In responding to those submissions, the Advocate depute argued that it had been open to the jury to hold from the appellant's evidence that the chair from the living room had been placed behind the front door as a barricade. The appellant had barricaded the door to keep the complainer's boyfriend out. That would be consistent with his having been engaged in raping the complainer. The Advocate depute argued that those actings of the appellant, which he himself had spoken to, had been capable of supporting the complainer's evidence that the intercourse had been without her consent. In the alternative the Advocate depute argued that even if the trial judge's directions relating to the chair amounted to a misdirection, it had not been a material one. This was a case where the Crown case had been compelling.

As far as the second ground of appeal was concerned, the Advocate depute argued that the trial judge had been perfectly correct to place a caveat on the jury's approach to the evidence they had heard of Mrs. C.'s impressions, whilst the complainer had been at her house. The trial judge had been perfectly correct to remind them that the impressions which Mrs C had spoken to had never been fully explained by her in her evidence. Furthermore there was a significant difference between how a jury should approach evidence given by a witness relating to distress the witness has actually seen and evidence of how the witness herself had at the time assessed the circumstances as they had presented themselves to her. In any event all that the jury had been directed to do had been to exercise caution. There had been nothing wrong with the trial judge having given such directions. He had stressed on pages 1 and 2 of the charge that it was their assessment of the evidence that counted and that it had not been for him to impress on them any personal view about the evidence.

Discussion

We have reached the conclusion that the trial judge's directions relating to the appellant's evidence of having placed a chair behind the front door did constitute a misdirection. In reaching that conclusion, we recognise that all the evidence relating to the chair was elicited without objection during the trial. However we also take account of the fact that during the trial the Crown did not seek to place any reliance on this chapter of evidence as a possible source of corroboration.

The trial judge did not seek to explain to the jury what inferences they would require to be prepared to draw from the evidence about the chair before it would be open to them to rely on the evidence, whether as providing corroboration of the complainer's own evidence of her lack of consent to intercourse or as evidence of knowledge on the part of the appellant of such lack of consent. In our opinion, such further directions were necessary, because it would have been open to the jury to have taken the view that the evidence about the chair was neutral, as opposed to it pointing in the direction of the chair having been placed behind the door in order to confine the complainer within her flat whilst she was assaulted. In our opinion, the direction the trial judge gave at page 13 lines 9-15 of the charge about the need for the jury to reject the appellant's explanation as to why he placed the chair behind the front door, before they relied on his evidence of having moved the chair, did not go far enough.

On the other hand we are quite satisfied that there is no substance in the second ground of appeal. In the passage in the trial judge's charge, at which this ground is directed, all the trial judge did was to direct the jury as to how they should approach their assessment of the evidence Mrs. C had given as to her own impressions during the period when the complainer was in her house. In doing so, the trial judge posed a number of questions, as opposed to hypotheses, which it was perfectly legitimate for the jury to be invited to take into account. The trial judge did not express his own view as to what he made of the witness' evidence, not did he seek to impress any personal views of the witness' evidence (or about what may have lain behind the witness' answers) on the jury. Nor can there be any suggestion that he directed the jury that they should not consider any of the issues relating to the witness' evidence which had been raised during the course of the defence speech to the jury.

Turning to the question of miscarriage of justice, we accept the submissions of the Advocate depute that this was a strong Crown case. The complainer's evidence found support from the fact that very early in the morning she left her flat in a state of distress and took her young daughter with her. She went immediately to her neighbour's house, where her distress was observed by Mrs. C. She was still in a state of distress when she arrived at her father's house and was seen by police officers who attended there. Furthermore there was independent support for her evidence as to what happened from the evidence relating to the kitchen knife, on which both her own and the complainer's DNA were found. As we have already noted the evidence relating to the moving of the chair was elicited from the complainer and the appellant, without any objection. In the whole circumstances, and particularly having regards to the strength of the other corroborative evidence, we are not persuaded that the directions the trial judge did give about the evidence of the moving of the chair, or any others he failed to give, once he decided to mention that chapter of evidence, resulted in a miscarriage of justice. Accordingly, the appeal against conviction falls to be refused.