Fox v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 23 January 1998 |
| Docket Number | No 15 |
| Date | 23 January 1998 |
| Court | High Court of Justiciary |
Full Bench
LJ-G Rodger, LJ-C Cullen, Lord Kirkwood, Lord Coulsfield and Lord Gill
Evidence—Sufficiency—Clandestine injury—Circumstantial evidence—Nature of circumstantial evidence—Distress—Innocent explanation available to explain complainer's distress—Whether distress requires to be more consistent with complainer's evidence than with innocent account
The pannel was tried on a charge of clandestine injury. The complainer had gone to a party and become drunk. She had had sexual intercourse with a man in the bathroom and later had been put to bed by that man and the pannel because she had become sick and tired. She gave evidence that she had fallen asleep but had been awakened by the pannel having sex with her. She told him to stop and he did so. The pannel in an interview with the police, admitted having intercourse with the complainer but explained that she had been conscious and consenting until she had discovered that he was not the man with whom she had earlier had sex in the bathroom. She then asked the pannel to stop and he did. The Crown relied for corroboration of the complainer's evidence on her distress shortly after the incident. The trial judge (Lord Macfadyen) repelled a no case to answer submission and the pannel was convicted. The pannel appealed on the ground, inter alia, that for distress to be corroborative it had to be more consistent with the complainer's evidence than with any other explanation for the distress.
Held that so long as the circumstantial evidence was independent and confirmed or supported the complainer's direct evidence on the crucial facts, it did not require to be more consistent with her evidence than with any other account, in order to be corroborative of her evidence; and appeal refused.
Mackie v HM AdvocateSC 1994 JC 132 disapproved.
Authorities considered.
Richard John Fox was charged on an indictment at the instance of the Right Honourable the Lord Mackay of Drumadoon, QC, Her Majesty's Advocate, the libel of which set forth a charge of clandestine injury alleged to have been committed on 4 June 1995.
The pannel pled not guilty and the cause came to trial before Lord Macfadyen and a jury in the High Court of Justiciary at Perth between 23 and 27 January 1997.
On 27 January 1997 the pannel was convicted.
The pannel thereafter appealed against conviction to their Lordships in the High Court of Justiciary.
Cases referred to:
Beattie v HM AdvocateSC 1995 JC 33
Gracey v HM AdvocateSC 1987 JC 45
Lee v HM Advocate (30 June 1988), High Court of Justiciary, unreported (see also appendix at 1989 SCCR 27)
Mackie v HM AdvocateSC 1994 JC 132
Manuel v HM AdvocateSC 1958 JC 41
Martin v HM AdvocateUNK 1993 SCCR 803
Mongan v HM AdvocateUNK 1989 SCCR 25
Moore v HM AdvocateSC 1990 JC 371
Morton v HM AdvocateSC 1938 JC 50
O'Hara v Central SMT CoSC 1941 SC 363
Smith v LeesSC 1997 JC 73
Stobo v HM AdvocateSC 1994 JC 28
Williamson v WitherUNK 1981 SCCR 214
Yates v HM AdvocateSC 1990 JC 378 (Note)
Textbooks etc referred to:
Alison, Criminal Law, ii, 551, 552–553
Burnett, Criminal Law (1811), ch XX, pp 509, 518–519
Hume, Commentaries, ii, 383 and 384
Hunter (ed), Justice and Crime[“Corroboration” by Sheriff G H Gordon, QC] (1993), ch 3
The cause called before their Lordships in the High Court of Justiciary for a hearing on 19 June 1997. Eo die their Lordships made avizandum. At advising, on 9 July 1997 their Lordships remitted the cause to a bench of five Lords Commissioners of Justiciary in order that their Lordships could reconsider the case of Mackie v HM AdvocateSC 1994 JC 132.
The cause called before their Lordships in the High Court of Justiciary, comprising the Lord Justice-General (Rodger), the Lord Justice-Clerk (Cullen), Lord Kirkwood, Lord Coulsfield and Lord Gill for a hearing.
At advising, on 23 January 1998—
LORD JUSTICE-GENERAL (Rodger)—The appellant is Richard John Fox who was convicted of a charge of clandestine injury at the High Court at Perth. He appealed against conviction on two grounds, the first being that the trial judge erred in rejecting a submission of no case to answer. On 9 July 1997 this court rejected that ground of appeal and held that there was sufficient evidence to entitle the jury to convict the appellant.
The essential elements in the charge of clandestine injury were (1) that the appellant had intercourse with the complainer and (2) that at the time of the intercourse she was in such a state of intoxication as to be incapable of consenting or not consenting to sexual interference. The Crown therefore required to prove these elements by corroborated evidence. The first element was not in doubt since the appellant admitted the intercourse. So far as the second element was concerned, the trial judge directed the jury that corroboration of the complainer's evidence that she had not consented could be found in the evidence of various witnesses that she had been in a state of distress following the sexual encounter with the appellant.
In his second ground of appeal the appellant contended that the trial judge had misdirected the jury on the second element: “The learned trial judge misdirected the jury by failing to direct them as to how they could determine whether the distress was caused by the complainer's account or by some other factor. In particular he failed to direct the jury how they could use distress as corroboration in circumstances where the two competing accounts of events would have caused the same level of distress since on either view the complainer was in a position of finding herself having sexual intercourse with someone whom she did not wish to have intercourse with.” At the first hearing of the appeal counsel for the appellant founded on Mackie v HM Advocate and, developing a passage in one of his other grounds of appeal, in effect argued that the trial judge had misdirected the jury when he said that the evidence of distress could corroborate the complainer's evidence. The misdirection was said to arise because the evidence of distress was consistent both with the complainer's evidence and with an account of events given to the police by the appellant. In replying, the Advocate-depute sought to distinguishMackie but said that, if the court was not persuaded that it was distinguishable, the matter should be remitted to a larger court. In the event the court decided to convene a larger court because it was aware that, especially following certain comments inSmith v Lees, there were doubts among members of the profession as to whether the approach in Mackie was correct and in any event as to whether it was to be applied to sexual offences.
The following picture emerged in evidence at the appellant's trial. The appellant, along with a number of other members of staff and customers from the night club where he worked, went back to his house for an impromptu party in the early hours of the morning. Among those present was the complainer, who was then 16 years old. There was evidence that she had a great deal to drink and was sick because of it. There was also evidence that in the bathroom of the house she had consensual intercourse with a Mr Richard Drake. Although the complainer did not recall this, she accepted that she would have been willing to have intercourse with him. The appellant and Mr Drake helped the complainer upstairs to the appellant's bedroom where she was put in his bed. Mr Drake undressed her and left her. Some time afterwards the appellant got into the same bed and at some later point he had sexual intercourse with the complainer.
The jury heard two different accounts of the circumstances in which sexual relations took place. According to the complainer's evidence, she had been asleep and woke up to find the appellant having intercourse with her. She was unwilling to have intercourse with him and told him to stop. He did so. The appellant did not give evidence at the trial but the Crown led evidence of what he had said when interviewed by the police during the evening after the events in question. In the interview the appellant said that he got into the other end of the bed and went to sleep. He eventually woke up and began cuddling the complainer. She later began to fondle his penis and he touched her private parts. This led to him having intercourse with her from behind. From her physical reaction the appellant considered that the complainer was encouraging him. Eventually, when they were changing position, he moved in front of her with the result that she could see who was having intercourse with her. According to the appellant, the complainer promptly told him to stop and he did so. He said that she was obviously quite upset and just went away. His view was that she told him to stop and was upset because she realised that it was he rather than Mr Drake who had been having sexual relations with her.
After leaving the house the complainer attempted to telephone her boyfriend. She spoke to his mother, Mrs Gerraghty, who eventually came by car to collect her. While waiting for Mrs Gerraghty, the complainer spoke to a former boyfriend, Gavin Steele. Mrs Gerraghty, Mr Steele and two police officers gave evidence of the complainer exhibiting signs of distress.
This narrative of the evidence shows that there was no dispute that at a certain point during the sexual intercourse the complainer was not willing for it to continue, that she told the appellant to stop and that he did so. The complainer and the appellant were in agreement on these points. Equally there was really no dispute that the complainer was distressed after the intercourse: in addition to the various witnesses who spoke to the complainer having been distressed the appellant herself said that she was upset before she left the bedroom. The dispute was about the reason for her distress. Several possibilities were put before the jury. According to the complainer's evidence, she was...
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