Cannon v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 25 March 1992 |
| Docket Number | No. 24. |
| Date | 25 March 1992 |
| Court | High Court of Justiciary |
JC
L. J.-G. Hope, Lords Allanbridge, Weir.
Evidence—Sufficiency—Corroboration—Rape—Complainer giving evidence that she had been raped—Appellant admitting that sexual intercourse had taken place but stating that it was with consent—Family friend speaking to distress and shock of complainer twelve hours later—Whether sufficient corroboration.
The appellant went to trial on a charge of rape. The complainer's evidence was that she admitted the appellant to her house at around 9.30 p.m. She had previously had a relationship with him and sexual intercourse had taken place between them with consent. On this occasion, however, when the appellant said that he wanted to make love to her she refused. The appellant continued to press for sexual intercourse and had it with her after telling her that he was going to make love to her whether she wished it or not. He held her arm back and held her down, and at a later stage produced a Stanley knife which he held towards her, extending and retracting the blade. The appellant admitted having sexual intercourse with the complainer on this occasion, his defence being that this took place with her consent. After the incident the complainer remained at home with her children, who were too young to give any useful evidence. She had opportunity to alert her parents, who lived next door, but did not approach them, her explanation being that she did not want her father to know about the incident. The next day the complainer took her children to school then went to work. Her employers were not there and she spoke to no one in the course of her shift. After work she sought out a family friend, who noticed that she was pale and shaking and so went with her in her car to a place where they could talk. The complainer seemed to be obviously upset and was crying. The trial judge explained to the jury that they could find corroboration in the complainer's distress only if they were satisfied that it was caused by the events of the previous night and that it was a separate source of evidence from the complainer's own account of what had happened to her. The appellant was convicted and appealed to the High Court of Justiciary, contending that the interval of time which had occurred was so long that no reasonable jury could hold that the incident in question was the cause of the complainer's distress.
Held that the jury were entitled to regard the evidence of the complainer's distress as sufficient corroboration because there was no stage prior to its observance by the friend when the complainer was in contact with anyone who might have observed her distress and there was no indication that anything happened in the intervening period which might provide an alternative explanation for it; and appealrefused.
Moore v. H.M. AdvocateSC 1990 J.C. 371 distinguished.
David Lewis Cannon was charged on an indictment at the instance of the Rt. Hon. The Lord Fraser of Carmyllie, Q.C., Her Majesty's Advocate, the libel of which set forth inter alia that: "(1) [O]n 29th or 30th April 1991 in the chalet occupied by [the complainer] … Brodick, Isle of Arran, you did assault [her]… handle her chest through her clothing, get into a bed beside her, struggle with her, seize hold of her, hold her down on said bed, threaten to rape her, threaten her with further violence, pull down her pants, attempt to pull off her nightshirt, kiss her private parts, attempt to kiss her on the face, lie on top of her, compress her neck with your hand, and rape her; (2) date and place above libelled, you did further assault [the complainer] … brandish a knife at her and menace her therewith."
The cause came to trial before Lord Penrose and a jury at the High Court in Glasgow between 11th and 14th November 1991. Thereafter the accused was acquitted of charge (2) on a submission of no case to answer and, a similar submission in respect of charge (1) having been repelled, he was convicted of that charge under deletion of certain words. The accused appealed to the High Court of Justiciary by note of appeal against conviction.
The grounds of appeal were as follows: "In respect of charge (1), there has been a miscarriage of justice. A submission was made in terms of sec. 140A of the Criminal Procedure (Scotland) Act 1975 that there was no case to answer and reference was made to the case ofMoore v. H.M. AdvocateSC 1990...
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