Lord Eassie

Appellant: S M McCall; John McRitchie & Co, Peterhead

Respondent: Wade, AD; Crown Agent

5 February 2013

Introduction
[1] In June 2006 the appellant was convicted of assault with intent to rape. He appealed against conviction and sentence. Thereafter he abandoned his appeal against conviction; his appeal against sentence was allowed and a sentence of 18 months' imprisonment was substituted for the sentence imposed. On 13 January 2012 the Scottish Criminal Cases Review Commission referred the case. On 25 April 2012 the court refused the Crown's motion to reject this reference; we refer to the opinion of the court of that date, [2012] HCJAC 120, for a summary of the background and procedural history of this matter. On 15 August 2012 the court granted the appellant's motion to lodge additional grounds of appeal in terms of section 194D(4B) of the Criminal Procedure (Scotland) Act 1995 - [2012] HCJAC 122.

[2] In its detailed and careful reference, the Commission considered several grounds of challenge to the appellant's conviction. In respect of several of these grounds of challenge, which we do not consider it necessary to rehearse here, the Commission concluded that there had been no miscarriage of justice. In respect of other grounds of challenge, which were directed at what were alleged to be misdirections by the trial judge, the Commission concluded that in several respects there were misdirections by the trial judge which were material and, considered together, may have led to a miscarriage of justice in the applicant's case. These related to (1) a failure by the trial judge to define the offence of rape, (2) a failure by the trial judge to give clear directions in respect of the appellant's mixed statement, and (3) a failure to give clear directions as to the evidential value of the complainer's distress. The Commission went on to conclude that it was in the interests of justice to refer the application to the court in respect of these alleged misdirections. These matters were the subject of grounds 1, 2 and 3 in the note of appeal for the appellant.

[3] In addition, the Commission considered two separate aspects of sufficiency of evidence in relation to the Crown case against the appellant. The first, considered at paragraphs 80 to 94 of the reference, was the question of whether there was sufficient evidence available at trial to prove the aggravation, i.e. the intent to rape, taking into account the evidence led of the appellant's police interview, and whether there is a legal requirement that the aggravation requires to be specifically corroborated. Although the Commission had concerns about the issue, it was satisfied that in terms of the law as it presently stands the aggravation of intent to rape does not require to be corroborated, and accordingly the evidence against the appellant at trial was not insufficient to support the charge, and no miscarriage of justice had occurred in this respect. This issue was the subject of the appellant's fourth ground of appeal which the court allowed to be received on 15 August 2012.

[4] The second sufficiency point, addressed by the Commission at paragraphs 95 to 114 of the reference, concerned the sufficiency of the Crown case if the evidence of the appellant's police interview had not been available. The interview was conducted without the appellant having had access to legal assistance, and so fell within the ambit of Cadder v HM Advocate [2010] UKSC 43; 2011 SC (UKSC) 13. The Commission at paragraph 103 of its reference considered the adminicles of evidence available apart from the police interview, and at paragraphs 105 and 106 it reached the conclusions that without the evidence of the police interview there would be insufficient evidence for a conviction, or alternatively that there was a real possibility that the jury would have arrived at a different verdict had they not had the evidence of the police interview before them, and accordingly that a miscarriage of justice may have occurred. However, considering all relevant matters the Commission concluded that it was not in the interests of justice to refer the application on the Cadder ground. This ground formed ground 5 of the appellant's amended note of appeal, which the court also allowed to be received on 15 August 2012.

[5] At the hearing of this appeal, counsel for the appellant suggested that it would be appropriate for the court to consider first the issue raised in the fifth ground of appeal (namely the issue of sufficiency of evidence without the police interview). The Crown's position now was that it accepted that if there was not a sufficiency of evidence without the police interview, the appeal must succeed. The advocate depute confirmed that this was the Crown's position. Accordingly, if the court were to be with the appellant on this point, all the other issues would become academic. We agreed to hear submissions on the fifth ground of appeal and reach a decision on this issue, before turning (if necessary) to the other issues in the note of appeal.

[6] We gave our decision to allow the appeal on the fifth ground of appeal at the conclusion of the hearing, but undertook to give our reasons in writing. This we now do.

The conviction
[7] On 22 June 2006 at Wick Sheriff Court the applicant was found guilty as libelled by a majority verdict of the jury on the following charge:

"(001) on 7 July 2005 at the road at Castletown Harbour, Castletown Caithness you did assault E.M. c/o Northern Constabulary and did demand that she have sexual intercourse with you, grab hold of her wrists and cover her mouth with your hand and this you did with the intent to rape her and did thereby place her in a state of fear and alarm."

The fifth ground of appeal

[8] The appellant's fifth ground of appeal was in the following terms:

"5. There has been a miscarriage of justice in that the Crown adduced in evidence a statement made by the appellant without him having had access to legal assistance. This breached the appellant's rights under A6(1) and 6(3) of ECHR and rendered the trial unfair (Cadder v HMA [2010] UKSC 43). The appellant incriminated himself in the interview, which incriminatory statements were relied upon by the Crown for conviction. Absent the appellant's interview, there was insufficient evidence for conviction. Esto there was sufficient evidence for conviction without the interview, there is a real possibility that the jury would have arrived at a different verdict had they not had the police interview before them."

Circumstances of the case
[9] At paragraphs 6 to 12 of its reference the Commission provided the following helpful summary of the evidence, derived from the trial judge's report and the transcript of the evidence of the complainer and Mrs Phelps:

"E.M. (complainer)

6. E.M. was a 55 year old housewife. She lived in Castletown. She was in the habit of taking a daily walk around the harbour, round the cemetery and then returning to her home. The walk took her between 30 minutes and 1 hour. As she was walking on the day in question she noticed a white van travelling in one direction. A short time later she saw the same van travelling in the opposite direction. She was surprised to see it again and wondered why it had turned so quickly. She subsequently saw the applicant in the distance walking towards her. At this point they were both on a single track road which formed the locus. As he approached, he crossed the road towards her. He said that he wanted sex. He gripped her wrists. She started to scream and carried on doing so. The applicant put his hands over her mouth and told her to stop screaming. She managed to get away from him and ran towards the car park at the bottom of the road. She met a woman there, who she later learned was Mrs Phelps who was on holiday. Mrs Phelps comforted her and she told Mrs Phelps that someone had grabbed her and wanted sex with her. She was taken into the mobile library van which had then arrived in the car park and the police were called. When the police spoke to her she remembered that she had seen the white van twice and told the police about this.

7. She said that since the incident she was unable to go for a walk on her own and she was wary of male strangers.

8. In cross-examination, E.M. accepted that she had not seen the driver of the white van. Habitually, E.M. did not make eye contact with strangers while she was out walking. She had been slightly apprehensive about the man walking hurriedly towards her. However, she denied that because of this she had been mistaken about what he said to her. When the applicant grabbed her wrists she automatically pulled her hands up towards her face and it was then that she started screaming. The applicant was standing very close to her. It was likely that she was moving her arms around in an agitated fashion. It was then that the applicant put his hand onto her mouth. When he took his hand away she started screaming again. She did not know how, but she managed to get away. She accepted that the applicant must have let her go as he was bigger and stronger than her. She ran towards the car park where she saw Mrs Phelps. She turned around once as she was running and the applicant was pursuing her - she was unsure if he was walking or running but he was following her. She resisted the suggestion that he had not been following her but had been running into the woods. She did not tell Mrs Phelps that the applicant had threatened to kill her.

Susan Phelps

9. Mrs Phelps was in Caithness on holiday when the incident occurred. She was sightseeing on the day in question.

10. As she turned into the car park she saw a man walking out of the car park whom she described. She identified this man as the applicant. He was heading towards the heritage walk. She and her husband parked the car and sat considering whether to walk on the beach. She had the car window open. She heard screaming. She jumped out of the car. She thought the screaming was coming from the direction of the heritage walk. A hysterical woman ran up from the heritage walk and into her arms. The woman, who she learned was E.M., was crying. She said to Mrs Phelps, 'Oh my God, this man had just put his hands round my throat and over my mouth.' E.M. also told Mrs Phelps that the man had said that he was going to have sex with her and that if she screamed he would kill her. Mrs Phelps described E.M. as 'a wreck actually' - she was shaking and crying as she told Mrs Phelps what happened. Mrs Phelps asked her husband to call the police. Mrs Phelps sat E.M. down on a picnic bench. It seemed to take some time for the police to arrive. At one point she went over to a works van to ask the occupants if they had a radio. As she returned to E.M., she saw the applicant returning to the car park. They made eye contact and he went 'sideways' into the trees and shrubbery. E.M. was frightened that the man might return, so Mrs Phelps did not tell E.M. that she had seen the man again. E.M. told her that she had left her cardigan. The man had grabbed her cardigan and her keys were in it. The police then arrived.

11. In cross-examination, Mrs Phelps re-iterated that E.M. had definitely said something about the man placing his hands around her throat. E.M. had demonstrated the motion of him doing so. She remembered clearly E.M. also telling her that the man had told her that he would kill her if she screamed. E.M.'s account did not come out in a logical manner. When she saw the applicant he appeared to be walking back towards the car park. She could not recall whether she had later told E.M. that she had seen the applicant again.

The applicant

12. Although the applicant did not give evidence, he was interviewed by the police on the day of the offence and evidence of that interview was led by the Crown. While admitting that he met the complainer, he denied that he had assaulted her with intent to rape in the manner described. He explained in the police interview that he had grabbed her wrists when she started screaming at him when he had merely said 'hello' to her as he passed. He said that he had done this because he did not know why she was screaming at him. His position at interview was that although he had arrived in the area in his van, he subsequently left the area by running through woods and catching a bus firstly to Thurso and then to his home in Keiss. He had done nothing else to the complainer and had departed the scene though the woods because he simply did not know how to handle the situation or what to do. This was the explanation too for having gone home by bus rather than simply going back to his van and driving home."

[10] A supplementary report was provided by the sheriff dated 31 July 2012 in relation to the additional grounds of appeal. Understandably, some six years having passed since the trial, he had difficulty in recollecting all the details of the trial, and adopted the analysis of the evidence, leaving aside the police interview, contained in paragraph 103 of the Commission's reference. That paragraph was in the following terms:

"103. The Commission believes that the applicant's police interview was significant in the Crown's case against him - it corroborated the crucial element of an assault, i.e. that he grabbed the complainer's wrists, and provided his account of his actions in the immediate aftermath of the incident. If the interview had been excluded, the case against him would have had to rely on the following:

· The complainer's account, including her identification of the applicant;

· the presence of the applicant's van close to the locus;

· identification of the applicant leaving the scene by Mrs Phelps;

· the scream and subsequent distress of the complainer as heard and observed by Mrs Phelps;

· whatever inference could be drawn from his somewhat furtive exit from the locus as spoken by Mrs Phelps; and,

· the presence of the applicant at his home approximately 15 miles from the locus some two and a half hours later dressed in different clothing to that described by witnesses.

In addition, the issue of the respective characteristics of the applicant and complainer would have been apparent to the jury: the applicant was a well‑built young man in his 20s; the complainer a diminutive woman in her 50s. The jury might also have taken into account the fact that the locus was a remote spot although in the Commission's view this would have been of limited worth since it was a warm, summer day when it is likely that tourists and locals might have been walking there."

Submissions for the appellant
[11] Counsel for the appellant submitted that if the police interview is taken out of account, the remaining evidence is incapable of corroborating the actus reus. It was necessary for the Crown to establish that an assault had happened on the path, and not something else which might have caused distress to the complainer, such as indecent exposure, breach of the peace or theft. None of the factors relied upon by the Crown (and set out at paragraph [8.7] of the written submissions for the respondent) was capable of corroborating the actus reus of assault in this case, namely demanding that the complainer had sexual intercourse with the appellant, grabbing hold of her wrists and covering her mouth with his hand.

[12] Counsel for the appellant considered each of the points listed at paragraph [8.7] of the Crown's written submissions. The complainer's account was the principal evidence; she was the only witness to describe what happened on the path. It is correct that Mrs Phelps spoke in evidence to hearing screaming, but this was not put forward at trial as part of the res gestae. "It is on the case as presented at the trial that the court must concentrate, rather than the case as it might have been presented" - Fraser v HMA [2011] UKSC 24; 2011 SC (UKSC) 113 at paragraph 38. The presence of the appellant's van in the car park close to the locus might support identification, but could not corroborate the actus reus of the offence, nor could Mrs Phelps' evidence identifying the appellant leaving the scene. The complainer's distress could corroborate her evidence that she was subjected to conduct which caused her distress, but it could not corroborate her account of what happened - Smith v Lees 1997 JC 73. In so far as the manner of the appellant's departure from the locus was relevant to anything, at most it might be relevant to infer a guilty state of mind: it did not shed any light on what happened on the path, or whether this was an assault or some other unusual or alarming event. The Crown relied on the complainer having dropped her cardigan and sunglasses; this was not a factor considered by the sheriff or the Commission, but the evidence in this regard was not satisfactory, and was in any event not such as could corroborate the happening of an assault. Similarly, the fact that the appellant was found at his home approximately 15 miles from the locus approximately two and a half hours later having changed his clothes was neither here nor there, and shed no light on what had happened on the path.

[13] The present case fell to be contrasted with Fox v HM Advocate 1998 SCCR 115, because in the present case such pieces of circumstantial evidence as there were told one nothing at all about the point which the Crown needed to establish, namely what happened on the path. The circumstantial evidence in Chakal v Brown 2004 SCCR 541 was much stronger than in the present case, and included evidence of earlier sexual overtures by the appellant including invitations to participate in sexual activity with him. There was also evidence of the appellant in that case having taken positive steps to exclude a boy from the bedroom and closing the door. In Stirling v Macfadyen 2000 SCCR 239 there was evidence that details of allegations were put to the appellant on the day after an alleged sexual incident, and there was evidence of the appellant's failure to deny the allegation, his general reaction and his demeanour. In the present case, there was no evidence which supported or confirmed the complainer's account of a physical attack on her on the path. Without the police interview, the Crown case would necessarily fail as there was no corroboration of the actus reus of assault. The interview was critical for conviction.

Submissions for the respondent
[14] The advocate depute confirmed that if the court reached the conclusion that there was not a sufficiency of evidence without the appellant's police interview, the Crown could not oppose the appeal on this ground. However, she submitted that there was sufficient evidence for a conviction even without the police interview. Although the Commission did not share this view, it had not taken into account the evidence of PC David Soutar regarding finding the complainer's cardigan and sunglasses at the locus, and the complainer's very distressed state on his arrival at the scene. This supported the complainer's evidence that she must have dropped her cardigan and sunglasses when she was grabbed. The dropping of these items was consistent with the complainer's account, and the finding and recovery of them by the police, when taken with the other adminicles of evidence, provided sufficient corroboration of her evidence as to the assault on her. This point was not raised in either of the speeches to the jury at the trial, nor in the sheriff's charge, nor in the Commission's discussion at paragraph 103 to 106 of the reference. Mrs Phelps gave evidence that the scream which she heard came from the heritage walk, and PC Soutar stated that he recovered the cardigan and sunglasses from the trail not far from the car park. It was open to the jury to draw the inference that the complainer screamed and dropped these items when she was attacked. There was also the manner in which the appellant left the scene, cutting through the trees and leaving his van in the car park. Taken as a whole, the appellant's actions showed the necessary mens rea. The advocate depute described this as "a thin case" but the evidence about the cardigan and sunglasses together with the screaming provided sufficient support to enable the jury to convict without the police interview. She referred to Fox v HM Advocate at pages 126/127 and 135.

Discussion
[15] In order for the appellant to be convicted of this charge it was necessary for the Crown to prove that the complainer was assaulted by the appellant at the locus. That she was assaulted, and that the appellant was the perpetrator of the assault, are facta probanda, each requiring to be proved by corroborated evidence.

[16] The evidence of the complainer was clearly to the effect that she was assaulted by the appellant at the locus. However, in order for the appellant to be found guilty of the charge, there required to be some other independent source of evidence which supported the complainer's evidence. Such supporting evidence may be available in some cases from eye witnesses, or from circumstantial evidence. However it must be evidence which does support the direct evidence on the crucial facts. In the present case, it required to be evidence that shed light on what happened to the complainer on the path. It required to go beyond confirming that something distressing happened to the complainer; it required to support her evidence that she was assaulted.

[17] The issue is one which has been the subject of detailed discussion in several authorities over the last two decades. We do not consider that it is necessary to continue that discussion at length here, because we consider that the law is now well settled on the point. It may be illustrated by passages from two authorities.

[18] First, in Smith v Lees the Lord Justice General observed (at 1997 JC pages 78/79):

"This argument raises very basic issues about the role of corroboration in our law. It is all the more important therefore to remember that the Crown can establish many facts in a criminal case by uncorroborated evidence. But there are certain facts which can be established only by corroborated evidence. These facts are variously described as 'fundamental' or 'crucial' or 'essential' facts or as the facta probanda, the facts which require to be proved. They are the elements which need to be established if the accused is to be found guilty of the crime in question..."

[19] That case involved an appellant who was tried on a charge of using lewd, indecent and libidinous practices and behaviour towards a 13 year old girl, and the issue of the extent to which evidence of a complainer's distress could corroborate her evidence. The Crown sought to use evidence of the girl having been distressed

"not simply to corroborate the complainer's evidence that something distressing occurred but to corroborate her evidence as to what exactly the appellant did" (p.80I).

The Lord Justice General, at p 81A, considered such a use not to be a legitimate use of the evidence of distress. The Lord Justice General went on to observe (at page 90b):

"To be valid, any approach which is applied to evidence of distress must fit into our law of corroboration as a whole. In order to corroborate an eyewitness's evidence on a crucial fact, the corroborating evidence must support or confirm the eyewitness's evidence by showing or tending to show that what the eyewitness said happened did actually happen. "

[20] The Lord Justice General returned to the issue of corroboration some months later in Fox v HM Advocate. The following passage (at 1998 SCCR 126d) is relevant to the present case:

"While evidence can provide corroboration only if it is independent of the direct evidence which it is to corroborate, the evidence is properly described as being corroborative because of its relation to the direct evidence: it is corroborative because it confirms or supports the direct evidence. The starting point is the direct evidence. So long as the circumstantial evidence is independent and confirms or supports the direct evidence on the crucial facts, it provides corroboration and the requirements of legal proof are met."

[21] We do not consider that any of the factors relied on by the Crown shed light on what happened to the complainer on the path. As counsel for the appellant observed before us, clearly something happened to the complainer on the path which caused her distress. However, none of the adminicles of evidence relied on by the Crown shed any light on what this was - they do not confirm or support the primary evidence of the complainer that this was an assault, rather than something else said or done by the appellant or the occurrence of some other distressing event . The presence of the appellant's van in the car park sheds no light on what happened on the path, nor does the scream and subsequent distress of the complainer, nor does the way in which the appellant left the scene, nor does the presence of the appellant at his home some 15 miles away two and a half hours after the incident and wearing different clothes. We do not consider that any of these items of circumstantial evidence confirms or supports the direct evidence of the complainer on the crucial question of what happened to her on the path.

[22] The advocate depute placed emphasis on the cardigan and sunglasses dropped by the complainer at the site and their subsequent recovery by the police. This aspect was not addressed by the Commission in its reference, nor was it touched on in the speeches to the jury nor the sheriff's charge. However, like the other factors, it does not appear to us to provide the sort of confirmation or support that is necessary for evidence to be corroborative. There is nothing in the dropping of a cardigan and sunglasses which, of itself, suggests that an assault occurred at or near where they were found.

[23] In all the circumstances, we agree with the submissions made by counsel for the appellant that without the appellant's police interview, there was insufficient evidence for conviction. We accordingly allowed this appeal on this basis. It is therefore unnecessary for us to consider the grounds on which the Commission made its reference, or the other grounds of appeal.