[1] On 1 May 2002 at Edinburgh High Court the appellant was convicted of the following charge:

In convicting in these terms, the jury deleted from the charge allegations that the appellant administered to the complainer a stupefying substance, committed other forms of indecent assault upon her and raped her.

[2] On 23 May 2002 Lady Smith sentenced the appellant to three years imprisonment with an extension period of two years.

[3] The appellant met the complainer in the Subway West End Night Club in the early hours of 16 February 2001. The complainer had gone there with two friends, Stacey Crandles and her boyfriend Michael Wilson, and had had several drinks before she met the appellant. When her friends left the club shortly before 3 am, the complainer stayed behind and talked to the appellant with whom she had drinks. Shortly after that she made her way from the club to the corner of Lothian Road and Castle Terrace. Video footage from a cctv camera on Lothian Road showed her to be markedly unsteady on her feet.

[4] The complainer said that she intended to get a taxi home but that the appellant walked with her and was irritating her. She said that the next thing she knew was that he came up beside her in his car, became aggressive towards her and told her to "just fucking get in the car". At first she laughed at him, but the next thing that she knew was that she was in the back seat of the car. She had no recollection of getting into the car. The appellant then drove her to a secluded place.

[5] The complainer and the appellant gave conflicting accounts of what happened in the car thereafter. The complainer said that she had been the victim of non-consensual anal, oral and vaginal intercourse. The appellant accepted that all three forms of intercourse had occurred, but he insisted that they had all been consensual. He said that the complainer had instigated anal intercourse.

[6] A significant issue at the trial was whether the complainer had arranged with the appellant at the night club that he would take her home in his car or whether that question arose only when he drove up beside her in Lothian Road. Michael Wilson was the key witness on this question. He gave a statement to the police about two days after the incident libelled. In the course of the statement he said that while they were in the club the complainer had told him that the appellant had a car.

This question came up in his evidence in chief in the following exchange.

It came up in cross-examination in the following passage:

Counsel for the appellant told us, and we accept, that during this passage of the evidence, Michael Wilson had a copy of his police statement in front of him.

[7] Four expert medical witnesses gave evidence at the trial. The Crown led Dr Rachel Miller, a police surgeon who examined the complainer on the evening after the incident, and Dr Jane Turnbull and Dr Kranti Hiremath, both forensic medical examiners, who examined her jointly about two months later. The defence led Dr George Fernie, a senior police surgeon with Strathclyde Police, who did not examine the complainer but had studied the medical records and reports. Each of these witnesses spoke to the interpretation of the findings of the anal examinations of the complainer.

[8] At an early stage in the charge the trial judge directed the jury about their approach to the assessment of the evidence. She said the following:

[9] When she came to the question of reasonable doubt she gave the standard directions, which included the comment that the key question for each of the jurors to have constantly in mind was the question whether, after considering all the evidence, they were left with a reasonable doubt.

[10] She later dealt with certain evidential questions in relation to the defence case. She said the following:

[11] Having defined the crimes and discussed the evidence, the trial judge gave the jury the following direction in relation to the defence case:

On the question of police statements, and of the statement and evidence of Michael Wilson in particular, the trial judge said the following:

[12] The trial judge also gave the jury a detailed review of the medical evidence, and her account of that evidence is the subject of a ground of appeal. We need not go into the details of that evidence because, for reasons that we shall give, we consider that it was irrelevant to the outcome of the trial.

[13] The first ground of appeal is that the trial judge failed adequately to direct the jury on how to deal with defence evidence and, in particular, did not point out that the accused did not require to give evidence or lead evidence; that he bore no onus of proof, and that even if they disbelieved the accused's evidence, in whole or in part, they must nonetheless acquit if the defence case left them with a reasonable doubt in their minds.

[14] The second ground is that the trial judge misdirected the jury in the passage that we have quoted in directing them in effect to disregard Michael Wilson's police statement and in saying that in the witness box he said that the alleged remark about the accused having a car was something of which he had no recollection.

[15] The third ground is that the trial judge misdirected the jury in saying (a) that Dr. Fernie did not contradict Dr Turnbull and Dr Hiremath and (b) that Dr. Fernie had said that he would have expected fissures to be seen if swabs were taken from the anus of the complainer by Dr Miller.

[16] Counsel for the appellant submitted that in every case the trial judge should point out to the jury that there is no requirement on the defence to lead evidence nor, if defence evidence is led, any requirement on the accused to give evidence on his own behalf. The further directions desiderated on the appellant's behalf should be given in every case in which the accused gives evidence. The crucial direction was that if the jury were to disbelieve the accused, they must nevertheless look at the whole of the evidence and consider if it proved the libel beyond reasonable doubt. In the special circumstances of this case, careful directions on this topic were essential in case the jury should merely weigh the evidence of the complainer against that of the appellant without taking into account the question of onus.

[17] In her first Report to the court the trial judge comments on this ground of appeal in the following terms.

[18] We should say at the outset that where the trial judge has omitted a material direction, or given a material misdirection, in the course of the charge, neither the trial judge nor the Crown can pray in aid anything that the trial judge may have said in the course of introductory remarks to the jury. Such remarks are not part of the formal procedure of the trial. In our view, they should be made by way of identifying to the jury the parties' legal representatives and outlining the procedures that are to be followed at the trial. In some cases, it may be helpful for the judge to indicate the probable length of the trial. But there is no need for the trial judge at that stage to mention matters of law, and in our view there may be dangers in doing so. It certainly makes good sense for the trial judge, when indicating the order of events, to say that after the Crown case there may be evidence for the defence; but that the defence is under no obligation to lead evidence. In this way, the judge may forestall the jury's jumping to adverse conclusions if no defence evidence is led. But if the trial judge goes on to mention onus, reasonable doubt and so on, his comments may at that stage seem academic and will lack any evidential context. Moreover, if he mentions such matters in both his introductory remarks and in the charge, there is a danger that any material discrepancy between his comments at these two stages may cause a mis-trial.

[19] We therefore decide this ground of appeal within the four corners of the charge itself. Approaching the matter in this way, we consider that the directions of the trial judge on this point could have been better expressed. In our view, the trial judge should have given a concise and specific direction as to the implications on onus and standard of proof where the defence leads evidence, and should have done so in the course of the general part of her charge.

[20] We do not accept a suggestion made by counsel for the appellant that the jury should be told that even if they disbelieve the evidence of the accused, they must nevertheless acquit if that evidence leaves a reasonable doubt in their minds. That direction would not be correct. The jury might find it difficult, as we do, to envisage how evidence that they disbelieved could create a reasonable doubt in their minds. The correct test is whether the evidence overall leaves them with a reasonable doubt.

[21] In our opinion, the essential points on which the jury should be directed in a case of this kind are that the accused bears no onus of proof; that there is no obligation on the defence to lead evidence; that if the defence does lead evidence, there is no obligation on the accused himself to give evidence; and that if defence evidence is led, it is not subject to the requirement of corroboration. If defence evidence is not led, the jury should be directed that no adverse inference arises from that. If defence evidence is led, the jury should be directed that if that evidence leaves a reasonable doubt in their minds, they must acquit (cf. Murray v HM Adv, 2000 SCCR 1); and that, even if they reject the whole of the defence evidence, there will remain the fundamental question whether the Crown has discharged the onus of proof beyond reasonable doubt. These, in our view, are good and sufficient directions in a case of this kind and it is preferable that they should be given as part of the trial judge's general directions, even if the trial judge considers it appropriate to return to them in his consideration of the evidence.

[22] Although the trial judge in this case approached the matter in a different way, the directions that we have quoted amounted in all to a sufficient direction to the effect that there was no onus on the defence and that the jury should decide whether the whole evidence left them with any reasonable doubt. We therefore refuse this ground of appeal.

[23] Counsel for the appellant submitted that the direction given by the trial judge, which we have quoted, was a misdirection in two respects; (1) because it directed the jury as a matter of law to disregard anything said by Michael Wilson in his police statement, and (2) because it misrepresented his evidence on the point. He submitted that Michael Wilson's evidence on the point was significant, both in relation to the question whether the appellant had induced the complainer to enter the car and in relation to the complainer's credibility overall.

[24] In her first Report to the court the trial judge comments that in the course of his speech to the jury, counsel for the appellant represented that Michael Wilson had told the police that the complainer had said to him while they were still in the night club that the appellant had a car. She says

She then says of Michael Wilson's police statement that

In her second Report, the trial judge accepts that she was mistaken in saying that Michael Wilson's police statement was not put to him. She has also revised her view of the significance of the point. She says:

[25] The advocate depute submitted that, on a strict reading of the passage of evidence that we have quoted, Michael Wilson did not actually say that he remembered that the complainer told him that the appellant had a car. It was for defence counsel to make this point clear. He had failed to do so. The advocate depute accepted however that if Michael Wilson's evidence on the point were to be interpreted as counsel for the appellant proposed, the trial judge seemed to have given the jury a direction in law that they should disregard it.

[26] In our opinion, there was a misdirection as to the import of Michael Wilson's evidence. We accept that defending counsel could have brought the point out more precisely; but reading that passage of the evidence in the context of the whole evidence and of the line of cross-examination that led up to it, we consider that the jury were entitled to infer from it that Michael Wilson was accepting that what he had said to the police soon after the events libelled was said when matters were fresh in his mind and was accepting both that he told the police about the complainer's statement about the car and that what he told them was true. On that view, we consider that the trial judge erred in suggesting to the jury that Michael Wilson's evidence was to the effect that the alleged remark about the car was "something of which he had no recollection."

[27] Furthermore, we consider that in the same passage in her charge the trial judge misdirected the jury in saying that what Michael Wilson said to the police was not evidence before them. Counsel for the defence put the statement to him by way of reminding him what he had said to the police and establishing with him that that was a true account of the matter. It was therefore evidence that the jury were entitled, and in our view bound, to take into account on that issue.

[28] We are further of the opinion that these misdirections were material. Michael Wilson's evidence had a significant bearing on the question whether the appellant unexpectedly appeared beside the complainer in a car and ordered her to get into it. If the jury accepted that the complainer told Michael Wilson in the night club that the appellant had a car, that could have suggested to the jury that the complainer had agreed to go home in the appellant's car before she even left the nightclub. It would also have been consistent with her having declined the opportunity to go home from the nightclub with her friends. We agree therefore that that evidence had the significance attached to it by the trial judge in her first Report (supra). It would also have a significant bearing on the overall credibility of the complainer. We conclude therefore that there was a miscarriage of justice and we uphold this ground of appeal.

[29] This ground of appeal raises two questions, namely whether the trial judge erred in saying that Dr Turnbull and Dr Hiremath were not contradicted by any other expert witness and whether she was accurate in her account of Dr Fernie's evidence as to the interpretation of Dr Miller's examination of the complainer. Having read the evidence, we consider that Dr Fernie differed distinctly from Dr Turnbull and Dr Hiremath on the question whether the clinical signs were more likely to be the result of blunt force trauma than constipation. Dr Turnbull and Dr Hiremath favoured the view that the more probable cause was blunt force trauma. Dr Fernie considered that both causes were equally probable.

[30] In our view, that issue is now irrelevant. When Dr Fernie gave evidence, the question whether the appellant had had anal intercourse with the complainer remained in doubt. The appellant himself then gave evidence and confirmed that he did have anal intercourse with the complainer. With that, the medical issue between Dr Fernie and the Crown witnesses ceased to be of any significance.

[31] We conclude therefore that even if there was a misdirection on this point, there can be no question of its having caused a miscarriage of justice. We therefore reject this ground of appeal.

[32] We shall allow the appeal so far as it is based on the second ground and shall quash the conviction.