Ronald James Adamson V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Justice General,Lord Marnoch |
| Judgment Date | 09 March 2011 |
| Neutral Citation | [2011] HCJAC 26 |
| Docket Number | XC85/10 |
| Date | 09 March 2011 |
| Court | High Court of Justiciary |
| Published date | 09 March 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Brodie Lord Marnoch | [2011] HCJAC 26 Appeal No: XC85/10 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by RONALD JAMES ADAMSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, Moll; John Pryde & Co., Edinburgh
Respondent: Cherry, Q.C., A.D.; Crown Agent
9 March 2011
Conviction and sentence
[1] The appellant was convicted after trial of five charges of sexual offences against two females when they were each girls or young women. Both victims were granddaughters of the appellant's then partner. In relation to one of them the convictions were of lewd and libidinous practices over a five year period when she was under the age of 12 and of contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 when she was between 12 and 15. In relation to the second victim the first conviction was of lewd and libidinous practices over a three year period when she was under the age of 12 years and of contravention of section 6 of the 1995 Act when she was between 12 and 15. The last conviction was of rape of the second victim on a particular occasion when she was 15.
[2] On the first charge the appellant was sentenced to two years imprisonment, on the second, third and fourth cumulatively to an extended sentence, comprising a custodial term of five years and an extension period of three years, and on the fifth to an extended sentence of 12 years imprisonment, comprising a custodial term of nine years and an extension period of three years. All were ordered to run concurrently.
Matters not now in issue
[3] The appellant was granted leave to appeal both against conviction and against sentence. At the hearing his counsel stated that, in respect of the first four charges, it was recognised that, while there may have been a misdirection by the trial judge, it could hardly, in light of decided authority, be said that there had been a miscarriage of justice. Time, he said, would not be taken up presenting an argument in relation to these charges. In effect, as we understood it, the relative ground of appeal was not being insisted in. We, therefore, say nothing further about it. We also note that although the grounds of appeal raised an issue as to the identity of the perpetrator of the offence in charge 9, that issue was not pursued before us.
The background
[4] At the time of the alleged incident the appellant was about 45 years of age. The complainer, as we have said, was 15. The appellant at that time worked for the local authority, being the site manager at a civic amenity site. The complainer was a daughter of a daughter of the appellant's partner. She regularly visited her grandmother and knew the appellant well. The complainer, at the time of the alleged incident, had a part-time evening job as a cleaner at the appellant's place of work, for which she received modest remuneration from the appellant. Normally her father, who also worked at the civic amenity site, drove her home after work by car but on the evening in question he was ill and left early. When the complainer had finished her cleaning duties the appellant asked her to stay to assist him in retrieving scrap metal. She did so in the expectation that thereafter the appellant would drive her home. After this work was completed the appellant asked her to lock one of the site gates and then to go to the office area. She did so. No one else was around.
The complainer's account
[5] According to the complainer's evidence, the appellant then entered the office area and began to kiss and cuddle her; he handled her private parts into which he inserted his fingers; he took her trousers down. She struggled and tried to get away but the appellant told her to stop teasing him and said "Fuck me, bitch" before pushing her over a worktop, rubbing her private parts with his hand, handling her breasts and her bra and penetrating her vagina from behind with his penis. Again she tried to get away but he would not let her. He persisted until ejaculation. Immediately afterwards he gave her £20 for her work and said "Don't tell anybody about this". There is nothing to suggest that at the time the complainer was other than a fit young woman, unaffected by drink or drugs.
The aftermath
[6] The appellant thereafter drove the complainer to her grandmother's house. She did not want to stay overnight there and told her grandmother that she wanted to go to a nearby farm where some of her friends were camping. Her grandmother instructed the appellant to drive her there. The complainer was reluctant to accept a lift from him but at this stage was, she testified, afraid to say anything. She said nothing at the time to her grandmother about what had happened at the site. Later that evening she made an unsuccessful attempt to speak by telephone to her social worker, Miss Darroch.
[7] The next morning she told her mother by telephone what had happened. She was told to come home. Her father came to collect her. After she arrived she said in the presence of a number of people, including the appellant and her grandmother: "[The appellant] raped me last night" and gave a description of what had occurred. The appellant denied the truth of her account. Her mother apparently told her, "Don't go the police, it will kill your gran." The complainer's grandmother instructed the complainer to have a bath, which she did.
[8] Later that day the social worker called at the house and the complainer gave her an account of what had happened the previous evening. The social worker took her to stay elsewhere and the next morning arranged for her to be medically examined. The complainer was at this time suffering from dysuria, urgency of micturition and left loin pain. She was unwilling to report her account of rape to the police but was prepared to see a general practitioner in relation to the above symptoms. She was so examined - by a Dr Gemmell, to whose testimony we shall return.
[9] No report was made to the police at that time. However, some two years later, a third granddaughter of the appellant's partner having made it known that she also had been sexually abused by the appellant, the family reported the whole matter to the police. In the event there were allegations of sexual abuse in various forms made against the appellant by four granddaughters of his partner. One of these (ultimately charge (6) on the indictment) was of assault with intent to rape of a granddaughter other than the complainer on the charge of rape. That charge was found by the jury to be not proven. Throughout the police investigation and the trial the appellant denied any impropriety with any of his partner's granddaughters.
The issues
[10] The issues in this appeal are in substance two-fold: (1) whether there was corroboration of the complainer's evidence that her vagina was penetrated by the appellant's penis and (2) whether, if there was, there was corroborated evidence that at the time of such penetration the appellant had the mens rea for rape. Associated issues arise in relation to the directions given by the trial judge to the jury on these matters.
Penetration
[11] There was direct evidence from the complainer that she was penetrated by the appellant. At no stage did the appellant admit that he had penetrated her. There were no specimens of bodily fluid which might have provided corroboration. Mutual corroboration was in the event unavailable, the jury having acquitted the appellant on the charge of assault with intent to rape. Before us, the Crown relied for corroboration on two sources of evidence: that of Dr Gemmell and the observed reaction of the appellant when he was informed that the complainer's accusation was not to be reported to the police (to which we shall return). The trial judge in this connection charged the jury that "these two strands of circumstantial evidence may be somewhat ambiguous and may be capable of an innocent explanation. In combination depending on the view which you take of them they are capable of providing confirmation and support [of the complainer's evidence of penetration]". In the event the jury, following these directions, must have accepted both strands and taken the view that in combination they provided the requisite confirmation or support.
[12] Dr Gemmell, as we have said, medically examined the complainer in relation to her symptoms on 11 August 2005, the second day after the alleged rape. At the time of the trial in December 2009 she had no personal recollection of that examination. She was dependent on the medical notes which she had made at the time - which were lodged as a production and spoken to in evidence. In these notes under 11 August 2005 Dr Gemmell had entered in the complainer's medical records, "Raped by a family member (not direct family) two days ago", "c/o [complaining of] left loin pain" and "o/e [on examination] ... tender ++ in left loin and slightly suprapubic". She testified that the tenderness over the loin usually would indicate inflammation of the kidney. She had noted that her impression at the time was that the complainer had a renal tract infection. This was consistent with her complaints of dysuria, urgency of micturition, passing urine frequently and left loin pain. When asked in evidence-in-chief what might have caused the renal tract infection she responded: "Certainly you can have renal tract or urinary tract infections post intercourse, its one of the causes for them. Not the only one, but it is one of the causes for a urinary tract infection." [Dr Gemmell had explained that renal tract infection was a more extensive form of urinary tract infection.] Having formed that impressionistic diagnosis she asked the complainer to hand in a urine sample to the surgery to confirm the diagnosis. In cross-examination it emerged that there was no record that her urine had in fact...
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Reference By Hma Against Clb
...to what might by now be termed mainstream thinking, the Lord Justice General’s (Rodger) dictum in Fox was followed in Adamson v HM Advocate 2012 JC 27. There the complainer was the granddaughter of the appellant’s partner. Her testimony was adequately corroborated by medical evidence of a c......