Cinci v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 16 January 2004 |
| Docket Number | No 11 |
| Date | 16 January 2004 |
| Court | High Court of Justiciary |
JC
LJ-C Gill, Lord Kirkwood and Lord McCluskey
Crime - Rape - Procedure - Solemn procedure - Judge's charge - Res gestae - Whether statement of complainer after intercourse formed part of the res gestae - Whether misdirection - Whether miscarriage of justice
Crime - Rape - Procedure - Solemn procedure - Judge's charge - Mens rea - Whether sufficient evidence to prove mens rea - Whether misdirection - Whether miscarriage of justice
The appellant was tried on indictment on a charge of rape. This complainer and her boyfriend were on an organised three-day backpacking tour of the Highlands. The tour stopped and picked up other passengers en route including the appellant. Considerable quantities of alcohol were consumed on the bus. The complainer was extremely drunk and on arrival at their hostel in Oban had to be carried in and put to bed in a female dormitory. The appellant was also drunk. A short time later the tour guide found the complainer in bed covered in vomit. He helped her to the communal shower block so she could clean herself up. The appellant appeared and tried to join the complainer in the shower cubicle. His advances were rebuffed. The tour guide left. Members of the hostel staff then went to check up on the complainer. Behind a locked cubicle door they heard mumbled voices and twice asked if everything was all right. A female voice asked for help. The door was opened from the outside and the complainer and the appellant were found within both naked. The complainer immediately said 'he raped me' and was described as being scrunched up in the corner of the shower, very upset and crying. The appellant was leaning over her. The appellant was told to leave and the complainer who kept asking for help remained visibly distressed. The police later found the appellant in a deep sleep on the floor of one of the toilets in the hostel having vomited. He later regained consciousness in hospital.
The complainer had no memory of events between the tour bus and being examined by the police surgeon. In evidence she said that she was not attracted to the appellant and could not think of any reason for having sex with him. The appellant suggested that the intercourse had been consensual.
The appellant was convicted of rape and sentenced to a term of five years' imprisonment. He appealed against conviction.
There were three grounds of appeal: (1) that the trial judge erred in admitting the statement of the plainer 'he raped me' as a statement coming within the res gestae and admissible as evidence on the crime; (2) esto if those words were admissible the learned judge ought to have directed the jury to consider this evidence with caution given the context of the circumstances in which they were said and in the absence of evidence of rape from the complainer at trial; (3) that there was no evidence to find themens rea of the appellant proved.
In respect of the first ground of appeal the appellant argued that the uttering of the words 'he raped me' in the circumstances described could not be evidence that the complainer had been raped. The making of the statement could not be said to be part of the thing done. Sexual intercourse had taken place and there was no evidence as to how long had elapsed since it had ended.
Held that: (1) the uttering of the words 'he raped me' did not form part of the res gestae (para 21); (2) there had been no evidence from which the jury could properly have inferred that sexual intercourse had been continuing at any time after the witnesses had arrived in the shower area (para 21); (3) the utterance had been made after the event (para 21); (4) had it been held that the event had not concluded, it would in any event have been a matter for the jury and not the trial judge to decide (para 21); (5) the jury had not been instructed to consider whether or not in their view the critical event had ended (para 21); (6) the directions given to the jury as to the use to which they might put this piece of evidence had been wrong (para 21); (7) the misdirection was material and had led to a miscarriage of justice (para 21); (8) there was no direct evidence at all as to mens rea (para 22); (9) there was nothing in the evidence that would have entitled the jury to hold that the Crown had proved the appellant possessed the necessary mens rea (para22); (10) there had been a miscarriage of justice (para 22).
Observed per the Lord Justice-Clerk (Gill): (1) as perMcKearney v HM AdvocateSC (2004 JC 87) there must be doubt as to whether evidence of the complainer's distress de recenti can provide corroboration of the appellant's state of mind in relation to her consent (para 4); (2) whenever the Crown has no evidence of force and relies on Lord Advocate's Reference (No 1 of 2001) the trial judge will have to consider with particular care whether there is corroborated evidence of the essential element of mens rea (para 5); (3) in Scotland a statement cannot be both part of the res gestae and de recenti (para 12); (4) in England the Privy Council have extended the res gestae principle to statements which, although not part of the event itself, are made under pressure of it in circumstances that exclude the possibility of concoction (para 13).
BAYRAM CINCI was charged on an indictment at the instance of Colin Boyd QC, Her Majesty's Advocate, the libel of which set forth a charge of rape. The appellant pled not guilty and the cause came to trial before Lady Smith and a jury in the High Court of Justiciary at Edinburgh. On 8 August 2002 the appellant was convicted of rape. He was sentenced to a term of five years' imprisonment and thereafter appealed against conviction to their Lordships in the High Court of Justiciary.
Cases referred to:
AB v CDUNK (1848) 11 D 289
Advocate's (Lord) Reference (No 1 of 2001) 2002 SLT 446
Ewing v Earl of MarUNK (1851) 14 D 314
Greer v Stirling Road TrsUNK (1882) 9 R 1069
O'Hara v Central SMT CoSC 1941 SC 363
Ratten v RELR [1972] AC 378
R v AndrewsELR [1987] AC 281
R v Beddingfield (1879) 14 Cox CC 341
Textbooks referred to:
A J Alison, Principles and Practice of the Criminal Law of Scotland (Edinburgh, 1832-33), vol 1, p 517
A G Walker and N M L Walker, Law of Evidence in Scotland (2nd ed, T & T Clarke, Edinburgh, 1983), paras 8.3.1, 8.3.2 and 8.5.3
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Gill), Lord Kirkwood and Lord McCluskey for a hearing, on 16 January 2004 -
LORD JUSTICE-CLERK (Gill) - [1] I gratefully adopt Lord McCluskey's analysis of the evidence and the issues in this appeal. Counsel for the appellant has raised two main questions, namely (1) whether there was sufficient evidence to establish mens rea,and (2) whether the trial judge was right in directing the jury that the complainer's words 'He raped me', if spoken, were part of theres gestae. If either question is decided in the appellant's favour, the appeal must succeed.
[2] In McKearney v HM Advocate we have held that it is now essential in a case of this kind that the trial judge should direct the jury expressly on the question of mensrea. The trial judge did so in this case. Lord McCluskey has quoted her words. In my opinion, she gave an accurate direction which covered the essential elements of mens rea to which we have referred inMcKearney. The trial judge also directed the jury that the crime involved not only the lack of consent on the part of the complainer but also the lack of a genuine belief on the part of the accused that the complainer was consenting. I agree that that direction was appropriate.
[3] The trial judge's general directions on the mens rea of the crime of rape were therefore correct. The problem in this case, so far as mens rea is concerned, relates to the sufficiency of the evidence. In the course of her general directions the trial judge said the following (p 15):
'Now...
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