APPEAL AGAINST CONVICTION BY BARRY MARTIN DALTON AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 24
HCA/2014/3054/XC
Lord Justice Clerk
Lord Drummond Young
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
appeal against conviction
by
BARRY MARTIN DALTON
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Renucci; Faculty Services Limited (for Culley & McAlpine, Perth)
Respondent: I McSporran AD; the Crown Agent
12 February 2015
Introduction
[1] On 25 June 2014, after a trial lasting 10 days at the High Court in Perth, the appellant was convicted of 5 charges. Charges (1) and (3) involved allegations that in, respectively, 2007 to 2008 and 2011 to 2012 he assaulted his then female partners on various occasions. The convictions resulted in consecutive sentences of 6 months imprisonment. These are not the subject of the appeal, nor directly relevant to it. Charge (4) alleged assaults on a third partner, KL, during the period 1 April to 11 November 2013. This conviction resulted in a further 6 month sentence. It is not the subject of the appeal, but it is relevant to it in evidential terms. Charge (5) was an allegation that, on 12 November 2013, the appellant broke into the flat of RS, a male friend of his partner, and assaulted him and KL. This attracted a 12 month sentence. The conviction is not the subject of the appeal, but it is again relevant evidentially to the final charge.
[2] Charge (6) alleged that, on 17 and 18 November 2013, the appellant assaulted KL once more. The terms of the libel are suggestive of a single assault, involving the detention of KL in a flat and repeated attacks on her by various means. The charge libels: seizing her by the throat; threatening her with violence if she refused to have sexual intercourse with him; compelling her to change her clothing; repeatedly compelling her to sit on top of him; and “repeatedly [penetrating] her vagina with [his] penis and … repeatedly [raping] her, all to her injury: CONTRARY to section 1 of the Sexual Offences (Scotland) Act 2009”. This conviction resulted in a consecutive 8 year sentence; the totality of the terms of imprisonment thereby amounting to 10½ years.
[3] Leave to appeal against sentence has been refused. The appeal proceeds upon grounds of appeal which maintain that the trial judge misdirected the jury in respect of no less than 9 separate matters. The issue is whether there were material misdirections and, if so, what their effect might be.
Evidence
[4] The trial judge reports that the evidence demonstrated the appellant to be of a violent and controlling nature. He would lose his temper quickly and without provocation. Ultimately, the appellant did not dispute that he had used violence towards his partners, although the level of this was challenged, as was the rape element in charge (6).
[5] Charges (4) (5) and (6) all involved KL. She began seeing the appellant in about March 2013. The relationship altered over time. The appellant became controlling and paranoid about her communings with other people. Matters culminated in mid‒November 2013 with the events libelled in charge (5). KL came to be in the flat of RS on 12 November 2013. She stayed the night there and slept with Mr S. The appellant discovered where KL had gone. He arrived there, kicked the door open, accused them of having slept together (which they both falsely denied), shouted and became physically violent. He punched Mr S on the head and body and held a knife to his throat. He punched KL, ripped her clothing, bit her, pushed her against a wall, pulled her by the hair, pulled her to the ground and kicked her repeatedly on the body while she lay on the floor. At the end of this, he appeared to recover his composure and told her that, if she went back with him, all would be forgotten. She agreed to do this and they returned to the appellant’s flat.
[6] On the Thursday and Friday of the following week, KL went to stay with her mother. On the Saturday (16 November), she agreed to meet the appellant at a club. She returned to his flat in the early hours of the Sunday morning. The trial judge reports that KL’s account of the circumstances thereafter, relating to charge (6), was “graphic and emotional”. KL described how the appellant had become convinced that she had slept with Mr S, which she continued to deny. She was sitting on a couch in the livingroom. The appellant was pacing up and down, calling her names and being physically aggressive. He pulled her tights off; tearing the legs off entirely. He dragged her around the room, squeezed the lower part of her face and pulled her hair at the temples. He punched and kicked her. He threatened her with scissors and scored her inner thigh with the sharp edge of a bank card.
[7] At some point, the appellant and KL moved to the bedroom, where the attacks came in two waves, separated by quieter moments. At the end of the second attack, the appellant took a wooden bar from the bed and threatened her with it. The physical assaults lasted for hours. After it started to get light, the appellant began talking in sexual tones. His behaviour became different; as though nothing had happened. KL was still wearing her clothes. The appellant demanded to have sex with her, despite her telling him that she did not wish this. He lunged at her neck and chin, pushing her head back. She anticipated another beating. She thought that, if she did not go along with what he wanted, she could not predict what might happen. He threw a “lacy dress” at her and told her to put it on. He told her to sit on him. She did so and they had intercourse in that position.
[8] KL maintained that she had no choice but to go along with the appellant’s demands. She had sexual intercourse on two further occasions during the course of the night. After the second one, she had fallen asleep. When she woke up, he had sex with her again (the third occasion). KL said that she had to, as the trial judge put it, “go through the motions so as to avoid a further beating”. At some point, the appellant had left the flat and gone down to a shop to buy some wine. KL denied that she could have escaped during this period, as she had been in no condition to run. He would have caught up with her.
[9] On the Monday morning (18 November) the appellant got up as if everything were normal. He started tidying the flat. KL said that she needed to get home. The appellant created a story for her, which would explain why she had visible bruising. He made her promise not to tell the police. He phoned a taxi. When she got into the taxi, she went straight to the police station, where she collapsed almost immediately.
[10] A number of witnesses supported different parts of KL’s account. A neighbour had heard arguing and what she took to be sexual activity through the wall. The taxi driver spoke to KL’s distress on getting into the taxi, as did various police officers who saw her shortly afterwards. There was medical and photographic evidence of bruising and other injuries. When the police searched the flat, they found broken glass, a wooden bar and pieces of hair.
[11] The appellant did not give evidence. He had, however, been interviewed by the police, in the presence of his solicitor, in the early hours of 19 November. The following opening exchange took place:
“DC1: … information has been provided to the police that … you have been responsible for holding [KL] against her will at your home address, assaulting her repeatedly and raping her. Did you hold [KL] against her will at your home address?
Suspect: No, I didn’t. No.
DC1: Did you assault [KL] repeatedly within your home address?
Suspect: No.
DC1: Did you rape [KL]?
Suspect: Definitely not.”
[12] On being asked whether he had detained KL, he said that he had gone to the shops twice at KL’s request. He gave an account of where he had been earlier in the evening, before returning with KL to his flat. He maintained that KL had expressed her continuing love for him and, after he had returned with some alcohol from the shops, they had started cuddling and kissing. They had made love on three occasions. This had all been at the instigation of KL. She had dressed up for him in a “black see‒through kind of dress thing”. There had been no “rough sex”. Although the appellant admitted having arguments with KL, he said that there had “never been violence”. Towards the end of the interview he said:
“… I’m telling you the truth … I don’t go raping people … but I’ve always … had a good sex life … Ok we have our ups and downs and that but I didn’t keep her in the house. She could have left the house at any time she wanted. I fell asleep for two hours … She could have left then. I told her … to phone her mum. I also phoned a taxi for her. Why would [I have] done that? Why would I phone a taxi?”
During the course of a subsequent interview, various specific allegations of assault were put to the appellant. He responded with “No comment”. This was also the appellant’s reaction when photographs of KL’s injuries were put to him.
Defence Speech
[13] The trial judge reports that, during the course of cross‒examination of the witnesses and in his speech to the jury, the appellant’s counsel accepted that the appellant had behaved in a violent manner, although not to the degree of ferocity libelled. The position of the appellant in terms of the interview, which was the only evidence of his position before the jury, was a blanket denial of all wrongdoing. Nevertheless, his counsel invited the jury to convict him of so much of the physical assaults in charges (1), (3), (5) and (6) as they found proved, but not of the rape element. He made no concession in respect of the appellant’s position on charge (4). In particular, defence counsel said this to the jury:
“You’ve heard his police interview. It will be fresh in your mind, I’m not going to rehearse it with you. You heard what he said in relation the sexual elements … he accepted that they had sexual intercourse three times; he was quite candid about that with the police. … And he told you, yes, he’d had consensual sexual intercourse and, yes, he absolutely believed that that was what was happening.
So you’ve heard him. If you believe him when he says she was consenting, or if you believed him when he says that he thought she was consenting, and that that was a reasonable belief, then you acquit. … Even if he says something that gives you a reasonable doubt, you would acquit.
And likewise, if in a case of this kind you take the accused’s evidence (sic) and all the other evidence in the case and you find that that leaves you in a state of reasonable uncertainty as to where the truth lies, then you would acquit.”
[14] Counsel asked the jury to consider charges (1), (3) and (5) on the one hand, and charges (4) and (6) on the other, “very differently”. He asked the jury to acquit of “the majority of the offence in charge (4)” and of the “entire breakdown (sic) of charge (6)”. He continued:
“But the position in charges (1), (3) and (5) it’s quite different. Because in those charges he accepts that he acted inappropriately … and he accepts that he assaulted [RS and KL] in relation to charge (5). And therefore I would invite you to convict him of those parts … of the parts of those charges that you find true …
So you see … [the appellant] is not someone who is not prepared to accept responsibility for his actions. He has always been prepared to plead guilty to the things he accepted doing. But for very proper reasons … the Crown didn’t want to resolve those charges in isolation as they wanted to lead all the evidence before you. …”.
In fact, contrary to what the jury were told, the appellant had tendered pleas of not guilty throughout the proceedings. There was no evidential base for any statement that the appellant had been prepared to plead guilty to anything or that he accepted any responsibility. This type of conflict between an accused’s position as disclosed in the evidence and what his counsel maintains his position to be at the trial poses a significant problem to a judge in determining how to charge the jury (see infra).
[15] In relation to charge (6), counsel said the following:
“… It’s a matter for you [how] much of her evidence you accept.
… in that regard you can use her evidence of the assault, of what she says happened in the assault to assist you in assessing her overall credibility and reliability. Yes, she was assaulted. Yes she had injuries. But are those injuries consistent with the sustained and brutal attack she described? … Yes, she was struck. Yes, she was pulled. Yes, she was grabbed, and yes, her hair was pulled. He says he threw her about …”.
Charge
[16] It is necessary to rehearse substantial sections of the trial judge’s charge verbatim standing the many criticisms advanced. The judge commenced with certain standard general directions on the comparative roles of judge and jury. He stressed that the jury were alone responsible for the decisions of fact based on the evidence. He dealt with onus of proof, and, at an early stage in relation to the appellant’s special defence of consent, directed that it was for the Crown to prove the absence of both consent and reasonable belief.
[17] The trial judge dealt with the appellant’s interview as follows:
“You had played to you a DVD … and that was an interview of the accused by the police. Now, although he didn’t give evidence his answers to the questions put to him are there before you in court and you are entitled to take his answers into account, with this qualification, remember he hasn’t gone on oath and so his answers haven’t been tested in the same way in the witness box as the answers given by other (sic) witnesses. But subject to that you can take account of what he says in his interview, in that interview.
And at the end of the day, having heard all the evidence, both by the Crown, by [a defence witness], and having taken account of what the accused has said in the police statement, if any of that evidence gives an account of what happened which is consistent with the accused being innocent of the particular charges, then you must acquit him. And even if you don’t believe the defence case entirely or don’t believe it at all, the burden still is on the Crown to prove its case and if, at the end of the day, you are left with a reasonable doubt about the guilt of the accused on any of the particular charges, then again, you must acquit.”
[18] The judge repeated the requirement for the Crown to prove lack of consent and lack of reasonable belief. He continued:
“Although you heard no evidence from the accused … you can take account of what he said in the police interview, although you may think that doesn’t help you terribly much because he denied any assault at all during that period, but it’s something that you have to take into account.”
He directed the jury that, if they believed the complainer about not consenting, then: “you don’t need to look very far to find corroboration”, given the evidence of the physical injuries from the photographs and the doctor. He continued by saying that the complainer’s hysteria “could provide, if you took a certain view of it, some support for her evidence as to what was really going on …”.
[19] Turning to the defence case, the trial judge said:
“The defence … say that she consented to any sexual activity that took place, consented on all occasions. They challenged her evidence she said no on the first occasion, point to the fact that after that first occasion on her own evidence she went along with it, giving every indication that she was enjoying it. And I think they put it this way, that even if on the first occasion the sexual intercourse happened without her free agreement then by the time of the second and third episodes … she was free to decide yes or no, she could have left, didn’t leave and therefore is to be taken as having consented and shown her consent.”
[20] The trial judge returned to the issue of corroboration. He directed the jury as follows:
“The charge is one of rape. You need to find corroborated evidence that on at least one occasion she was raped before you could convict of rape. … if you accepted her evidence of the first occasion when she did, on her evidence, say no, you would be entitled to find that proved by corroborated evidence, the bruising and so on. If you did find that it’s a question for you as to how many times, the word is used in the charge ‘repeatedly’. It is one charge of rape and you will notice … the word ‘repeatedly’ is used three times. That word ‘repeatedly’ doesn’t need to be proved by corroborated evidence. If you were satisfied on corroborated evidence she was raped once, then it’s a matter just of assessing her evidence as to whether it happened again against her will.”
On consent, the trial judge said:
“You have got to ask two questions; did the accused honestly believe that [the complainer] was consenting to sexual intercourse on any of those occasions? Well, there’s no direct evidence that he did honestly believe but, of course, the burden is on the Crown to prove he didn’t. And the second part, if you think he did believe or may have believed, the question is was that belief reasonable, and those are questions you have to answer by inference from the facts that you find proved.
Now, one thing in terms of reasonable belief that you might want to consider is this: you will remember … in [KL’s] evidence, that she kept asking rhetorically a number of times why would anyone want to have sex with someone who they had beaten up so badly and who was bruised and battered all over … What you may want to ask yourselves, adapting this question, if you are … trying to form a view as to whether the accused could reasonably have believed that she was consenting, is to invert her question and ask, ‘… Why would a person who had inflicted a beating on someone and left her battered and bruised believe that she would be willing in that state to have sex with him, whatever she was saying?’ Is it credible, you might think, she was willing, and if you did believe that was that a reasonable belief …”.
Submissions
Appellant
[21] There were 9 specific criticisms of the judge’s charge identified by the appellant. (1) The directions in relation to what was a mixed statement were inadequate. Although the trial judge told the jury that they could take into account the answers given by the appellant, he did not give them any assistance on how to do this. Specifically, he did not direct the jury that, if they believed the appellant’s denials, or if they provided the jury with a reasonable doubt, they should acquit (Scaife v HM Advocate 1992 SCCR 845 at 847‒8). The jury could have been left with the impression that they had to consider all the evidence and, only if the totality was consistent with innocence should they acquit. The jury had not been directed that, if they believed the appellant’s denials, they did not require to consider the evidence further, but should acquit (Thomson v HM Advocate 2009 SCCR 415). This was particularly important because the appellant had relied on his interview (S v HM Advocate 2009 SCCR 815 at para [10]).
[22] (2) The trial judge had erred in describing the police interview as not helping “terribly much”. This direction was “prejudicial” (Murphy v HM Advocate 2006 SCCR 407). It implied that the judge did not believe the denials of rape, having regard to the fact that he had denied any form of assault, although now accepting that he had assaulted the complainer. It may have been obvious that the evidential value of the appellant’s denials, in respect of the offences which he now accepted, was limited, but the trial judge was not entitled to express a view in relation to a matter which was still in dispute, namely the charge of rape.
[23] (3) The trial judge did not explain to the jury that they were entitled to accept part of the accused’s interview and not other parts, although he had given such a direction in relation to the testimony. Rather than infer that the jury could believe some bits and reject others, the way the trial judge had presented it would imply that, if the appellant had been untruthful in one bit, his denials were of little value in respect of the rest. Furthermore, the judge had told the jury that evidence consisted of the witnesses’ answers to questions. He had not said this in relation to the interview, which was also evidence.
[24] (4) The trial judge had misdirected the jury in telling them that they did not have to look “very far to find corroboration” if they believed the complainer. It was not the function of a trial judge to explain how easily or otherwise corroboration could be found. Such a direction was capable of influencing the jury’s view of the evidence in favour of the complainer. The direction lacked impartiality.
[25] (5) The directions in respect of distress were inadequate. The episode libelled in charge (6) had taken place over a period of time. Initially, the appellant had physically assaulted the complainer. The allegation was that thereafter he had compelled the complainer to have sexual intercourse with him. She had gone along with this because of the earlier physical assaults. The physical assaults had formed a distinct episode preceding the rape. The trial judge had not properly directed the jury in respect of the use of distress, given that it was open to the jury to conclude that her emotional state had been due solely to the physical assaults and not to any lack of consent to intercourse.
[26] (6) The trial judge had misdirected the jury by incorrectly summarising the appellant’s position in a fundamental and prejudicial way. The impression would have been that the appellant had somehow conceded that the first incident of sexual intercourse may have been without consent. That had not been the defence position. It was not clear where the judge had taken his reference from. It may have been that he had confused what the defence had said in the no case to answer submission with what had been said in the speech.
[27] (7) The trial judge had failed to recognise that, although there was a single charge, it libelled three separate instances of rape. The fact that the Crown had libelled them within a single charge did not alter that fact. Each allegation of rape required to be corroborated. It was not as if the rapes alleged had all occurred within a short timescale, such that they could all be regarded as part of a single continuing crime. There had been three distinct episodes. To suggest to the jury that, if they believed the complainer about the first incident, all they had to do was to assess her evidence in relation to the second and third incidents was a misdirection.
[28] (8) The trial judge had told the jury that there was “no direct evidence that he did honestly believe” that the complainer was consenting. There was such evidence in the police interview.
[29] (9) The final complaint related to the trial judge’s inversion of the question of reasonable doubt caused by him asking the jury to consider why a person who had battered someone would believe that she would be willing to have sex. The question implied incredulity as to the appellant’s position. This error had compounded the judge’s earlier reference to the absence of direct evidence of honest belief.
Crown
[30] (1) ‒ (3) The charge required to be looked at as a whole. The live issues were consent and reasonable belief. In that context the trial judge had given adequate directions by telling the jury that they could take his answers at interview into account (Scaife v HM Advocate (supra) at 848; Jones v HM Advocate 2003 SCCR 94; McGill v HM Advocate 2007 SCCR 80 at para [12]; S v HM Advocate 2009 SCCR 815 at para [10]). The formulation had not given rise to a miscarriage of justice (Thomson v HM Advocate 2009 SCCR 415 at para [15]). It would have been plain to the jury from the direction that the appellant’s interview was part of the evidence and that, if it provided a reasonable doubt, they should acquit (Hunter v HM Advocate [2014] HCJAC 28 at para [6]). The trial judge’s comment on the interview was factually correct. The jury had been given the standard directions on their role in the assessment of the evidence. The jury would have been well aware that the interview was part of the whole evidence.
[31] (4) ‒ (6) The judge’s remark about the ease of finding corroboration was correct in the context of consent. It was accepted that the judge had not given the standard directions on distress as corroboration (S v HM Advocate 2012 SCL 310 at para 24). There had been sufficient corroboration without distress. It was accepted that the trial judge had incorrectly summarised the defence position in relation to the three episodes of rape. However, it was clear from the charge, read as a whole, that the defence position throughout was one of denial of rape. The judge had specifically said that the defence disputed the allegation of rape. He directed the jury on the need for the Crown to prove lack of consent on all three occasions.
[32] (7) In a departure from the Crown’s written Case and Argument, it was accepted that the trial judge had misdirected the jury on the need to corroborate what were three distinct episodes of rape. Each required to be corroborated, even if the same evidence might provide that corroboration. The effect of this would be to quash the conviction in so far as it alleged “repeated” rape.
[33] (8) The trial judge had been correct in saying that there had been no “direct” evidence of reasonable belief. All that there was was the testimony about the appellant’s interview. Given the injuries on the complainer, it was not reasonable for him to have believed that the complainer had been consenting. The jury had been adequately directed on reasonable belief.
[34] (9) Viewing the charge as a whole (Gemmill v HM Advocate 1980 JC 16 at 21; McPhelim v HM Advocate 1960 JC 17 at 21‒22-), the jury would have been well aware that the onus of proof rested upon the Crown (Lyttle v HM Advocate 2003 SCCR 713 at paras [21] and [22]; S v HM Advocate 2012 SCL 310 at para [20]). Neither individually nor cumulatively had the directions complained of been productive of a miscarriage of justice other than as conceded in relation to “repeatedly”.
Decision
[35] It is certainly a matter of concern that there are so many criticisms of the trial judge’s phraseology, most of which could undoubtedly have been more precise and considered in light of the established authorities (infra). That is a far cry, however, from saying that the wording used amounted individually or collectively to material misdirection.
[36] In relation to the interview, the correct direction is that set out in Scaife v HM Advocate 1992 SCCR 845 (LJC (Ross) at 847‒8, following Morrison v HM Advocate 1990 JC 299). The jury should have been directed to consider the whole statement and determine whether the whole or any part of it is accepted as truth. If the jury accepted an exculpatory element of the interview, or if it raised a reasonable doubt, they must acquit the accused of the relative part of the libel. The direction which was actually given was deficient; but that was in being too favourable to the appellant. The judge stated that, if what the accused said in his “statement” was consistent with the accused being innocent (which it obviously was), the jury should thereby acquit. The jury must, by their verdict, have realised the flaw in this direction and interpreted what was said as meaning that it was only in the event of accepting the exculpatory element as truth that an acquittal should follow. The important point is that the trial judge did direct the jury correctly that they were entitled to take account of what the appellant had said in the course of the interview. Contrary to what was submitted by the appellant, the trial judge did say that, if the evidence of the interview provided an account consistent with innocence, the jury required to acquit him. That was sufficient in the circumstances. It would have been plain to the jury that, if they did believe the part of the interview relating to rape (despite the responses having been proved to be false in certain material respects), then an acquittal of the rape had to follow.
[37] That having been said, as indicated above, when directing the jury the trial judge was faced with a problem in the form of counsel’s partial disavowal of the appellant’s position at interview, without an evidential base for doing so. Unless there had been a plea of guilty before the jury, or the accused had given evidence that he had committed parts of the libel, the evidential position (which is what the jury were bound to consider) remained that stated at interview (ie a blanket denial of all the offences). The judge would have been entitled to remind the jury of that fact, rather than allowing the defence speech, which, in effect, contained statements of the appellant’s instructions to counsel, to pass without comment.
[38] The judge’s comment, about the value of the interview being limited, was justified in the circumstances. A judge is not prohibited from making any form of comment in relation to the value of a particular piece of evidence. On the contrary, the Practice Note of 18 February 1977, encourages judges to provide juries with such guidance and assistance as can properly be afforded in relation to the accurate assessment of the quality and weight which ought to be given to evidence of material consequence. The reality in this case was that, in his interview, the appellant had simply denied any wrongdoing. In these circumstances, the judge was entitled to remind the jury of that fact and that it may result in them being inclined to attach little weight generally to the interview. The judge did not direct the jury that they were bound to do that.
[39] The judge might usefully have directed the jury that they could accept some parts of the interview and not others. That is a standard direction which is regularly given to juries in relation to the assessment of testimony and when looking at police interviews. It is not, however, a compulsory direction which must be given in all circumstances. It is an advisory direction and one which some may consider, even in the context of testimony, to be a statement of the somewhat obvious. It must have been clear to the jury that some of the denials of the appellant, during the course of his interview, were manifestly untrue. The judge still directed them that they could take into account all of the interview in determining whether it provided them with a reasonable doubt. That was adequate, even if barely so, in the circumstances.
[40] The trial judge directed the jury that, if they accepted the complainer as credible and reliable, they would not need to look very far to find corroboration, given the physical state of the complainer when she got into the taxi and later arrived at the police station. That is factually correct. It may not be a particularly helpful way of expressing the matter, since the jury’s assessment of the credibility and reliability of the complainer would itself depend upon the degree of support, in a general sense, which was afforded to her account by the surrounding facts and circumstances, including the injuries and the distress. Nevertheless, the judge was not directing the jury at this point on credibility and reliability, but on the formal requirement for there to be corroboration. That corroboration was clearly visible in the form of the bruising and distress.
[41] Similar considerations apply to the next point about the complainer’s state of hysteria. Once again, it would have been prudent for the judge to have given the standard direction on distress as corroboration; ie that for distress to be so, the jury must accept it as genuine and attributable to the alleged rape recently perpetrated. The trial judge might have directed the jury that they had to attribute the hysteria and the distress to one or more of the instances of alleged rape. However, the appropriateness of such a direction has to be seen in the context of the live issues at trial. If the incident were looked at as a whole, there was no evidence that the complainer’s state might have been attributable to some other episode or incident. It would have been highly artificial to attempt to separate out such elements of the distress which might be attributable to lack of consent and what might have been prompted by a blow from a fist or foot. Any attempt to do so would involve a somewhat convoluted direction, which may not have been readily understandable. What the judge said to the jury was correct. If they took a certain view of the hysteria, it could provide some support for the complainer’s evidence.
[42] However, a problem does arise in relation to the trial judge’s directions on the corroboration of the rapes generally. This was not a case of repeated rapes over such a short period of time that they might be considered to be all part of one episode of repeated rape. There were substantial periods of time between each rape and each required to be proved by corroborated evidence. Of course, the evidence of the physical injuries and distress may have been regarded as corroborative of all three rapes. Nevertheless, the absence of a correct direction on corroboration, and indeed the giving of a direction that no corroboration was needed for each rape, must be regarded as a material error of law. However, the judge clearly directed the jury that they must be satisfied that there was corroborative evidence of at least one rape. The jury must have been so satisfied. Any miscarriage of justice must be limited to the “repeated” element found to be descriptive of the rapes. As correctly conceded by the Crown, the conviction must be quashed to that extent.
[43] That approach may be seen as curing any defect in the directions relative to the attribution of distress to a particular incident of rape. In this connection, the trial judge’s direction that there was no “direct” evidence of “reasonable belief” was correct, if for a different reason than that given in his report on his understanding of the meaning of “direct” evidence. Rape as now defined involves intercourse without the other person’s consent and “without any reasonable belief” of such consent (Sexual Offences (Scotland) Act 2009, s 1). That does not mean that reasonable belief will be a live issue in every case. It was not in this case in relation to the initial incident of rape, although it may have been in relation to the later two.
[44] The evidential conflict on the first incident as revealed in the evidence was between a complainer, who said that she was physically attacked at the time and effectively forced to have intercourse after the appellant had thrown a dress at her, and the appellant, who said that the intercourse was instigated by the complainer, who had purposely dressed up for him. There is no room, in that state of the evidence, for reasonable belief. The defence was consent pure and simple. There is no evidence which might allow for some misunderstanding of the position. So far as the appellant’s interview was concerned, this did not provide any evidence, direct or otherwise, of reasonable belief. The appellant’s position was again that it had been the complainer who had instigated the sex.
[45] The only evidence of “reasonable belief”, albeit of a tenuous nature, came from the complainer, when she said essentially that she had not actively resisted the appellant in relation to the second and third episodes. However, in view of the court’s approach to the trial judge’s misdirection on corroboration, this issue no longer arises in any practical sense. In any event, once more, had the issue been a live one, the trial judge’s comment, in asking the jury to reverse the question and ponder how the appellant could have thought that the complainer was freely agreeing to intercourse, having sustained a considerable beating from him, was a legitimate one to make in the context of the live issues at trial. It was an obvious question to ask and the trial judge was entitled to focus that matter for the jury’s attention.
[46] The remaining ground concerns the judge’s summary of the appellant’s position in relation to the three episodes. The direction does seem to run, at least in part, contrary to what the defence were maintaining at the trial. However, looking at the charge as a whole, it would have been clear to the jury that the appellant was resisting any form of conviction for rape in respect of all three episodes. In any event, the judge did not suggest that the appellant had conceded that he had raped the complainer on the first occasion. His comment was based on a mistaken hypothesis of fact in relation to that occasion.
[47] The appeal is accordingly refused, except in relation to the “repeated” element of the rapes. That alteration is significant and will result in a reduction of the sentence on charge (6) to one of six years.