APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Clarke Lady Dorrian	[2010] HCJAC 19 Appeal No: XC487/05 OPINION OF THE COURT delivered by LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION by WILLIAM GEMMELL MACKINTOSH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Shead, advocate, Miss Mackenzie; George Mathers & Co

Alt: P W Ferguson, QC, AD, Crown Agent

7 August 2009

The background circumstances

[1] The appellant in this case faced an indictment containing two charges. In their original form, they were in the following terms:

"(1) Between 16 and 19 December 2000, both dates inclusive, on Porterfield Road, Moorpark, Renfrew and at the house occupied by you at 2E Porterfield Road, Moorpark, Renfrew, you did abduct JG ... assault her, seize hold of her, force her to accompany you to said house, detain her there against her will, seize her by the throat, apply pressure thereto, repeatedly punch and kick her on the head and body, and pull her hair all to her severe injury; and

(2) Between 16 and 19 December 2000, both dates inclusive, at 2E Porterfield Road, Moorpark, Renfrew you did assault JG ... and without her knowledge or consent administer to her a quantity of Diazepam or other sedative for the purpose of rendering her insensible or incapable of resistance and having rendered her unconscious thereby, you did partially remove her clothing, lie on top of her and have sexual intercourse with her without her consent and did rape her."

The appellant pled not guilty and went to trial. The trial took place in the High Court at Paisley between 30 July and 15 August 2002.

[2] Before the close of the Crown case, the Advocate depute was granted leave to amend the terms of the indictment. After amendment, the terms of the two charges were as follows:

"(1) Between 16 and 19 December 2000, both dates inclusive, on Porterfield Road, Moorpark, Renfrew and at the house occupied by you at 2E Porterfield Road, Moorpark, Renfrew, you did assault JG ..., seize hold of her, detain her at said house against her will, seize her by the throat, apply pressure thereto, repeatedly punch and kick her on the head and body, and pull her hair all to her severe injury; and

(2) Between 16 and 19 December 2000, both dates inclusive, at 2E Porterfield Road, Moorpark, Renfrew you did assault JG ... and lie on top of her and have sexual intercourse with her without her consent and did rape her."

[3] Immediately following upon the closure of the Crown case, the solicitor for the appellant made a submission that there was no case to answer in relation to charge (2) in the indictment, as amended. Having heard the solicitor for the appellant and the Advocate depute, the trial judge repelled that submission, after which the trial proceeded. On 15 August 2002, the jury unanimously found the appellant guilty on charge (1), as amended, and, by a majority, found him guilty on charge (2), as amended. On 5 September 2002, the court sentenced the appellant to twelve years' imprisonment, to run from 15 August 2002, in cumulo in respect of the convictions on charges (1) and (2).

[4] The appellant has tabled a number of grounds of appeal against his conviction. For the purposes of the subject matter of this opinion, it is necessary to note only Ground 1 in the Note of Appeal received on 27 September 2005, which is in the following terms:

"1. A miscarriage of justice occurred as a consequence of the trial Judge erroneously repelling a submission of no case to answer at the conclusion of the Crown case. There was insufficient evidence in law to establish the requisite mens rea to entitle the jury to convict the appellant of rape. In particular, there was no corroboration of the account of the complainer which would entitle the jury to infer that the appellant knew that she was not consenting to sexual intercourse or was reckless in that regard."

A hearing of the present appeal took place between 4 and 7 August 2009, at which the foregoing ground of appeal was argued, among others. The submissions relating to other grounds of appeal were not completed within the time available. However, the court has heard all of the submission made in relation to foregoing ground of appeal and is therefore in a position to make a decision in relation to it. The purpose of this opinion is to express that decision and the reasons for it.

The facts established at the trial, as narrated by the trial judge.

[5] The complainer, JG was born on 18 September 1975. She had three children following the development of a relationship. Latterly these children lived with her parents. She appeared to the trial judge to be a very vulnerable person, and was in a very fragile state when she gave her evidence. He understood that she had been abused by her former partner. She had also used heroin from time to time, and there was a suggestion that for a time she was sleeping rough in Glasgow and had resorted to prostitution. At the time of the offences in question, she was separated from her former partner and had been staying for a few weeks with another man. Her recollection of events surrounding the commission of the offences was, in the view of the trial judge, fragmentary; apparently it took a great deal of effort on the part of the Advocate depute to induce her to speak up. During the course of her evidence two witness statements, which had been taken from her on 21 December 2000 and 15 January 2001, were put to her. Both of these dates were, of course, shortly after the offences and, in evidence, she appeared to accept that most, if not all, of what she had told the police, at the time when her recollection was better, was the truth. She appeared therefore to adopt the statements; in any event, they appeared to the trial judge to coincide reasonably well with the account which she gave in the course of her evidence. The narrative that the trial judge has provided in his report to this court is said to be derived from these statements as well as from her evidence.

[6] The complainer had met the appellant because she knew his former girlfriend. For a time after she first met him he began pestering her by making repeated telephone calls. She told him she was not interested in him, but agreed to have a drink with him one day, when they happened to meet at the railway station in Paisley. This appeared to be the start of his domination over her. On Saturday 16 December 2000 she had been due to go to her parents' house to see her children, but she came across the appellant in the street. He took her by the hand and led her to his flat, even though she did not want to go there. He there gave her coffee. Although an allegation that he administered a quantity of diazepam or other sedative to her was deleted from charge (2), the trial judge was of the view that it nevertheless rendered what happened thereafter more intelligible; her account was that it had been after drinking this coffee that she felt affected by something. In any event, she seemed to have been unconscious, or not fully conscious, for a good part of the next three days. Notwithstanding this, late in the evening of 16 December 2000, the appellant took her, with two other people, to a flat in Glasgow where other people were present. She was given some ecstasy there. By then the appellant was able to dominate her to the extent that he took her back to the flat. Perhaps on 17 December, he took her out to a public house, but again was able to take her back to the flat. Later on, on his own account, he administered heroin to her.

[7] From the evidence of the complainer it appeared that the alleged rape took place fairly early on, perhaps on 16 December, before the appellant took her into Glasgow. She could remember very little, except that, having been unconscious, she regained consciousness to find herself undressed and in the appellant's bed, with the appellant lying on top of her having sexual intercourse with her. She referred to the weight of his body and the pressure of his face against hers. The sexual intercourse lasted for some time, but the appellant was unable to ejaculate.

[8] In addition to the rape, the complainer testified that the appellant had assaulted her on two or perhaps three occasions over a period of time. She described him grabbing her throat on one occasion. On another occasion she found that her jaw had been injured: the jury held that this had been done by his kicking her. This led to her jaw being broken in three places and to several teeth being broken. Some time later, she regained consciousness to find herself in a sleeping bag on the settee in the livingroom. She saw some of her broken teeth on the floor. Even though by then she was in great pain and her face was badly swollen, the appellant again assaulted her by punching her on the jaw and seizing her by the throat, leaving bruises and scratches. He also pulled out a lot of her hair by the roots. Throughout all of this, the complainer said that she felt unable to get away from the appellant. Latterly he kept the door of the flat locked. The trial judge narrates that there was a strange episode involving a visit to the flat by the appellant's aunt, a deeply unsatisfactory witness, at a time when the complainer was already seriously injured, but no-one sought help for her. The appellant finally allowed the complainer to leave, more than three days after he had first taken her to his flat. She made her way to the house of her former partner, who treated her by giving her heroin. It was only later that the complainer was taken to hospital and that the police became involved. She was unable to speak at first, because of her injuries and the emotional state in which she was, but in due course the statements referred to were taken from her.

[9] The trial judge narrates that, when interviewed by the police, the appellant admitted having had sexual intercourse with the complainer but, in what the trial judge characterises as a bizarre series of allegations, asserted that it was with her full consent. He admitted grabbing her by the throat at one point, but said that her principal injuries had been caused by her slipping on the stairs to his flat. During the course of his evidence at the trial he said that he had shaken her with his hands on her shoulders and when he did that his thumbs might have been on her neck. He denied having told the police that he had seized the complainer by the throat and, indeed, asserted at one point that it was not his voice on the tape recording of the interview. He repeated his account that the complainer's principal injuries had been caused by her slipping on the stairs. His aunt gave evidence, saying that when she visited the flat the complainer was lying on the livingroom floor, got to her feet and then fell, injuring herself. The trial judge states that the jury rejected all of that. The evidence which the jury had appeared to accept disclosed that, over a period of more than three days, the appellant was able to dominate a vulnerable young woman and systematically to abuse her sexually and physically for no apparent reason other than to exploit her and inflict pain on her.

The trial judge's decision on the submission of no case to answer

[10] The trial judge has given a narrative of the submission of no case to answer made on behalf of the appellant. He observes that it was implicit in the discussion which followed the making of the submission that it was accepted that the Crown had led sufficient evidence to prove charge (1), as amended. There was therefore sufficient evidence to establish, inter alia, that the incident started with an assault on the complainer in the street, and continued throughout the period of the libel by her being detained in the appellant's flat against her will, where she was further assaulted in the manner libelled in the charge. Both the complainer, in her evidence, and the appellant during the course of the police interview (Crown Production No 16, pages 15, 16-17, 24, 27 and 43) said that there had been one act of sexual intercourse between them during the time that she was in the flat. The complainer's evidence was that this act of sexual intercourse took place without her consent. The first submission had been that there was no corroboration of lack of consent. There was, however, evidence from a number of witnesses that the complainer was in a state of distress after she had left the appellant's flat. In particular, her former partner, Greig Irvine, to whose house the complainer made her way and who was the first person who saw her after she had left the appellant's house, described her as "hysterical". The trial judge states that he decided that this and other evidence about the complainer's distress was capable of corroborating her evidence, if the jury were to hold that the distress was at least partly attributable to the lack of consent to the sexual intercourse, after considering other possible causes of distress, most obviously the serious injuries she had sustained. That was reflected in the trial judge's directions to the jury at pages 31-33 of the transcript of his charge.

[11] As regards the question of whether there was sufficient evidence of mens rea, the trial judge states that the trial occurred after the decision in Lord Advocate's Reference (No 1 of 2001) 2002 SCCR 435 and McKearney v HM Advocate 2004 SCCR 251. The view that he took of the law was reflected in passages in his charge to the jury, where he referred to mens rea at pages 15, 19, 22, 29, 33 and 34. No issue was taken in the grounds of appeal with any of these passages. Thus, the trial judge observes that he took it that it was accepted that he had correctly directed the jury at page 33 of the transcript that, if they were satisfied that the appellant had had sexual intercourse with the complainer without her consent, the jury would have to go on to consider whether, having regard to the whole circumstances, the proper inference was that the appellant knew that the complainer was not consenting, or at any rate, was reckless as to whether she was consenting. It was not the Crown case that the appellant used force to rape the complainer. The Crown case was in essence that everything that had taken place while the complainer was at the appellant's flat where, as libelled in charge (1), she was detained against her will for several days and subjected to a number of assaults, at least one of which might have taken place at some point before the sexual intercourse, entitled the jury to draw the inference that the appellant knew perfectly well that the complainer did not consent to sexual intercourse, any more than that she consented to being the flat and to being assaulted there. The trial judge states that he was satisfied that there was sufficient evidence to entitle the jury to draw the necessary inference and accordingly he repelled the submission that there was no case to answer in respect of charge (2).

Submissions of the appellant

[12] Counsel for the appellant said that the alleged rape, it seemed, had occurred on 16 December 2000; on 19 December the complainer had gone to the house of her former partner when she exhibited distress, which was a feature of the Crown case. The complainer had also spoken to a physical assault resulting in significant injury. Sexual intercourse was said to have occurred on one occasion only, but there was uncertainty as to when that had happened. Counsel drew attention to the fact that there had been two episodes during which, in the course of the weekend, the complainer had been out of the appellant's flat. First, that had happened on the Saturday night when she had gone with him to a party in Glasgow. Secondly, there had been a visit by the complainer and the appellant, it might be some time on the Sunday, to a public house. There had been an issue at the trial relating to the time of the sexual intercourse, which had ramifications regarding the significance of the distress that had subsequently been exhibited.

[13] Counsel submitted that the trial judge had been in error to repel the submission of no case to answer on charge 2, because there was no corroboration of mens rea on the part of the appellant. In connection with this submission he relied upon Fox v HM Advocate 1991 S.C.C.R. 115 and Wright v HM Advocate 2005 S.C.C.R. 780. In paragraphs 9-11 of the latter case, it had been decided that corroboration of sleep on the part of the complainer was corroboration of mens rea on the part of the accused. However, in the present case, the complainer had claimed in evidence that she had been conscious at the time of the intercourse. Certain parts of the trial judge's summary of the facts were tendentious.

[14] Counsel went on to examine in detail the evidence of the complainer herself. He did so at some length in order to convey, as he put it, the full flavour of her evidence. She had made clear that the intercourse had taken place at an early stage in the course of the whole incident and that it was not forcible. There had been no significant preceding assault. It appeared that the serious injuries sustained by the complainer had been suffered following the incident of sexual intercourse. There had been no sexual behaviour following the visit to Glasgow. The complainer had made clear that her position was that sexual intercourse with the appellant had not been desired. However, she had not exhibited any distress following upon the sexual incident, at the party in Glasgow. There was nothing that corroborated the complainer's evidence that she was reluctant to be in the appellant's flat. Counsel went on to rely on McKearney v HM Advocate 2004 SCCR 251, particularly the opinions of the Lord Justice Clerk, Lord Kirkwood and Lord McCluskey at paragraphs 33-36. In that case, in which a conviction for rape was quashed, there had been a serious assault before the alleged rape; in that respect the case differed from the present one. Reliance was also placed on Spendiff v HM Advocate 2005 S.C.C.R. 522, particularly paragraphs 23-34. What mattered were the circumstances at the time when the intercourse took place, not after it. Here, the undoubted evidence of distress from a witness other than the complainer could not corroborate mens rea on the part of the appellant. In any event, that distress was manifest days after the alleged rape. The present case was a peculiar one because it was plain from the terms of charge (2), as originally drafted, that the Crown's case was to be based upon the clandestine administration of soporific drugs to the complainer; however, that part of the Crown case was abandoned by amendment.

Submissions of the Crown

[15] The Advocate depute began by drawing attention to passages in the complainer's evidence from the transcript available. He also drew our attention to the contents of the appellant's interview with the police. He also attributed significance to forensic evidence which related to the complainer's fractured jaw. The evidence of the appellant's interview with the police had been introduced as part of the Crown case. There was no dispute between the parties that, this being a case of what might be described as non-forcible rape, corroboration of mens rea on the part of the appellant was necessary. A part of the background which was of importance was the contention that the appellant had been, in effect, a prisoner in the appellant's flat. That could be inferred from the fact that, before she left on the Tuesday, she had been screaming that she wished to leave. The Advocate depute conceded that, if it were held that the submission of no case to answer had been wrongly repelled by the trial judge, the result would be a miscarriage of justice, on the basis of the decision in Gonshaw v Bamber (No 2) 2004 S.C.C.R. 696. The question here was whether there was evidence from more than once source in the Crown's case to entitle the jury to conclude that the appellant had intended to have non-consensual intercourse with the complainer, or was, at least, reckless regarding the issue of her consent. Recklessness could of course constitute mens rea in rape, as appeared from Lord Advocate's Reference (No 1 of 2001), at paragraphs 29 and 44. The issue was one of circumstantial evidence. The circumstances relied upon as corroboration need not themselves be incriminating, just consistent with the Crown's case as appeared from Al Megrahi v HM Advocate 2002 SCCR 509, particularly paragraphs 31, 32 and 36.

[16] The Advocate depute stated that he relied on the contents of the appellant's police interview and also on medical evidence relating to the injuries sustained by the complainer. He submitted that there were ten elements in the evidence which could furnish the necessary corroboration. These were as follows: (1) the complainer's presence in the appellant's flat was not by prior arrangement between the parties, as appeared from the appellant's police interview; (2) there had been no previous sexual relationship between the complainer and the appellant; (3) the complainer and the appellant were of considerably different ages; at the material time the complainer was aged 24 years and the appellant 42 years; (4) the complainer could not be described as a friend of the appellant; she was a friend of one Melanie Orr, who had been a girlfriend of the appellant; (5) the complainer had remained at the appellant's flat until around 10pm on Tuesday 19 December 2002; she had nowhere to stay; (6) the complainer had no change of clothing with her at the material time, as the appellant had said in his police interview; (7) the complainer had screamed that she wanted to leave the flat on the Tuesday evening, after which she did in fact leave with noticeable haste; (8) within the flat the complainer had been seriously injured by the appellant; her jaw had been fractured and there was bruising on her face and neck; no medical assistance had been sought for her; (9) on leaving the appellant's flat, the complainer had gone to the residence of Greig Irvine, her former partner, who had described her as hysterical; any remarks that she may have made to him were not the subject of evidence; and (10) the appellant had given an explanation in his interview that the complainer had manufactured her evidence of rape as a plot; when she had left his flat she had no visible injuries. In response to an intervention by the Court, the Advocate depute withdrew the second part of that contention, as in conflict with the contents of the interview.

[27] The Advocate depute submitted that, on the basis of all of the foregoing factors, the jury would have been entitled to infer that the complainer would not have remained in the appellant's flat unless she had been confined there. Accordingly what ever happened there did not have her consent. That must have been known to the appellant. Again, as a result of an intervention by the Court, the Advocate depute accepted that the appellant and the complainer had gone together on the Saturday night to Glasgow. The complainer had had the opportunity to leave when the appellant was temporarily out of the flat to which they had gone. What had then happened was that she had resumed contact with the appellant and had gone on to a café with him, subsequently returning to the locus of the alleged rape. It was submitted that the circumstances showed that the complainer had been under the appellant's control, dominated by him. The nub of the question which the Court had to address was the limit to what might reasonably be inferred from the evidence available.

The decision

[28] It appears to us that, in the present context, the question is whether there was led evidence, as part of the Crown case, which was capable of being seen as sufficient in law to establish the requisite mens rea on the part of the appellant in relation to the acknowledged sexual intercourse which took place between him and the complainer. In a context, such as this, where the Crown case was said to depend upon circumstantial evidence, the question must be whether the circumstances relied upon in combination can be seen as capable of giving rise to the necessary inference that the appellant must have known that there was no consent to intercourse on the part of the complainer, or, at least, that he was reckless as to whether such consent existed or not. While circumstantial evidence may give rise to a number of inferences, if at least one inference is indicative of guilt of the crime charged, or proof of the essential element in that crime that is in question, then there would be a case to answer (Smith v HM Advocate 2008 SCCR 255, paragraph [16]).

[29] During the course of the discussion before us, the approach of the Advocate depute was to point to several elements in the case, ten in number, which he contended amounted to sufficient proof of mens rea. Plainly there is a danger in scrutinising each of these elements in isolation; it is necessary to consider their effect in combination. However, in our opinion, it is legitimate to consider each one for such significance as it may be thought to possess, provided that one does not lose sight of the need to consider the evidential effect of the various elements in combination.

[30] An important part of the background is, of course, the evidence of the complainer herself as regards the alleged rape. At page 77 of the transcript of her evidence and following pages she indicated that she did nothing to resist the appellant at the time of the intercourse. She did not react in any way. She said nothing to the appellant, nor did he say anything to her. This had occurred before the visit to Glasgow. However, at a later stage in her evidence, at page 162 of the transcript and following, she testified that, at the time of the alleged rape, the appellant had said that he loved her. At page 252 of the transcript, under cross-examination, the complainer agreed that maybe the appellant had thought that the complainer was a willing partner to an act of sex. Thus the evidence of the complainer herself is of no real significance in the quest for sufficient evidence of the appellant's mens rea.

[31] With that background, looking now at the elements in the circumstances relied upon by the Advocate depute, we can attribute no significance to the first. No doubt the complainer was in the appellant's flat without there having been any prior arrangement to that effect. However, we do not consider that that circumstance could properly give rise to any relevant inference. Likewise, we attribute no evidential significance to the second factor relied upon by the Advocate depute. While there was a significant difference in age between the complainer and the appellant, in the nature of things, we do not think that that circumstance gives rise to any relevant inference. As regards the fourth element, it was true that the complainer was not a close friend of the appellant, however, she was acquainted with him through Melanie Orr. Turning to the fifth element in the Advocate depute's list, it is true that the complainer did remain at the appellant's flat until around 10pm on Tuesday 19 December, but it was acknowledged that she had no other premises where she could stay. Plainly, before she left, the relationship between the complainer and the appellant had apparently deteriorated and the jury held that a serious assault had been committed by him against her. However, we do not consider that that circumstance can cast light upon the appellant's state of mind at the time of the intercourse, which it seems occurred on the Saturday prior to the visit to Glasgow and before the infliction of the serious injury.

[32] The Advocate depute founded in his sixth element upon the fact that the complainer had no change of clothing with her at the time in question. That appears to us to be a matter of no evidential significance having regard to the circumstances in which she came to encounter the appellant on the Saturday and subsequently enter his flat. The fact that there was no prior arrangement that she should stay there must be seen as an explanation of the state of affairs relied upon. In the seventh point made by the Advocate depute it was indicated that, by the time the complainer left the flat on the Tuesday, the appellant, in his statement to the police, acknowledged that she had wished then to leave. However, that circumstance appears to us to reflect no more than that, following the assault which has been held to have been committed by the appellant on the complainer, after the alleged rape, she did not wish to remain in the appellant's flat. That assault was the focus of the Advocate depute's eighth circumstance. There is no doubt that the complainer was seriously injured while she was in the flat. Expert medical evidence was led as to the extent of her injuries, which included a fractured jaw. Perhaps the main thrust of the Advocate depute's argument in relation to this element was that the appellant had sought no medical attention for the complainer. However, in his own statement to the police under interview, at page 12 of the transcript, the appellant indicated that "I had everybody up to see she was alright. Rab was up, Nicola came up, that's Peach's girlfriend, my friend from East Kilbride came up, that's because she knew J ...". "And she just widnae go to the hospital, she just would not go to the hospital. And I pleaded with her to go and she didnae go." It appears to us that that material, which was part of the Crown case completely undermines the inference which the Advocate Depute sought to draw from this element.

[33] The Advocate depute went on, in his ninth element, to found upon the circumstances surrounding the complainer's visit to Greig Irvine following her departure from the appellant's flat on the Tuesday evening. There was no evidence as to exactly what she may have said at that time to Greig Irvine. However, he did testify that she was hysterical at that time. Having regard to the fact that the assault which the jury have held was committed upon the complainer by the appellant occurred some time after the alleged rape, and having regard to the severity of that assault, we do not consider that any reasonable jury could have inferred that the complainer's hysteria on the Tuesday evening was attributable to unwanted sexual intercourse during the course of the preceding Saturday. As regards the Advocate depute's tenth point, the appellant's position was not that, when the complainer left his flat, she had no visible injuries. That was ultimately accepted by the Advocate depute. So what remains of this point was the appellant's contention that the complainer had manufactured her allegation of rape against him. We cannot conclude that that material was capable of giving rise to an inference of the kind necessary in this case.

[34] Standing back from these individual elements founded upon by the Crown and looking at them in combination in the context of the circumstances of the incident generally, we do not think that it can be affirmed that the evidence showed that the complainer was, in effect, a prisoner of the appellant from the Saturday to the succeeding Tuesday. It appears to us that the visit of the appellant and the complainer to Glasgow on the Saturday evening, following the alleged rape is of significance. There was evidence to the effect that, at least for a period of time, the appellant and the complainer were separated at the time of that visit. It might be supposed that, at that time, had she wished to do so, the complainer could have removed herself from the flat and from the possibility of further contact with the appellant. Yet she did not do so. What she did was to go to a café with him in Glasgow before returning to his flat in Paisley. Furthermore, there was evidence of a visit, apparently on the Sunday to a public house in Paisley. These circumstances appear to us to undermine the Crown's characterisation of the situation as abduction. Indeed, it is perhaps of significance that the Crown decided to amend charge (1) by deleting from it the allegation of abduction.

[35] In all of these circumstances, we have concluded that the submission of no case to answer in relation to charge (2) ought to have been sustained. On the basis of Gonshaw v Bamber (No 2) the decision of the trial judge to reject the submission amounts to a miscarriage of justice. We shall therefore quash the appellant's conviction on charge (2) in the indictment. It will be necessary for the appeal against conviction to be the subject of a further hearing to complete the consideration of those grounds of appeal that relate to the conviction on charge (1). Depending on the outcome of that, it will also be necessary for there to be held a hearing on sentence, quite apart from the appeal against sentence itself, having regard to the fact that the trial judge imposed a cumulo sentence in respect of the convictions on charges (1) and (2).