Hector Riley V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Sutherland,Lord Coulsfield,Lord Justice General |
| Court | High Court of Justiciary |
| Date | 24 June 1999 |
| Docket Number | 279/98 |
| Published date | 24 June 1999 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice General Lord Sutherland Lord Coulsfield
| Appeal No: 279/98 OPINION OF THE COURT delivered by LORD SUTHERLAND in APPEAL AGAINST CONVICTION and SENTENCE by HECTOR RILEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Burns, Q.C.; Balfour & Manson
Respondent: Mulholland, A.D.; Crown Agent
24 June 1999
The appellant was convicted of charges of rape and assault. He now appeals against the conviction for rape, on the ground that there was no corroboration of penetration. The circumstances of the offence, as narrated in the trial judge's report, were that the complainers in the two charges, L.F. and S.A., were engaged. They had become friendly with the appellant and on the night in question were drinking with the appellant and a friend of the appellant in a public house. At closing time the complainers invited the appellant and his friend to their flat. After a time the friend left. Later, a bed was made up for the appellant on the livingroom floor. F. and A. went to bed, leaving the appellant in the livingroom. In the bedroom F. and A. had sexual intercourse and thereafter F. went to sleep. A. suffered from a stomach upset, probably due to taking too much drink and ecstasy, and went to the toilet. While he was there there were three closed doors between him and the bedroom. He estimated that he was there for about 10 to 15 minutes. F. woke up to find a person lying on top of her having intercourse with her. She realised that it was the appellant. He had his hand across her mouth. She tried to get away. She felt something cold against her face and the appellant said that if she did not stop struggling he would spray it on her face. He had on an earlier occasion had a can of mace and had been talking about it. During the course of the appellant having intercourse with her she became aware that A. had come back into the room.
Accordingly there was clear evidence of penetration from F., but in the absence of any forensic evidence the only corroboration could come from A. A. was asked if when he got to the bedroom anything was happening and he replied "Yes, when I opened the bedroom door Mr. Riley was raping my fiancée". Later when asked what he was actually doing he replied
"Well, he was raping my fiancée. That's what he was doing, and he was thrusting as you would when you're having sex or raping. He had both of her hands in one of his hands. She was crying and shaking her head and crying and saying, 'no' and 'he's got a knife he's going to kill us'".
He accepted that what was taking place was under the covers. While he was in the room the appellant pointed towards him in a threatening gesture what he recognised was a can of mace. That is what constituted the second charge of assault. It should be noted that the defence was that what took place in the bedroom was with the consent of the complainer F. but that the appellant was unable to achieve penetration. It was not put in cross-examination to A. that he was wrong in his impression that the appellant and F. were actively engaged in having intercourse at the time when he came into the room.
Mr. Burns on the appellant's behalf today argued that, while it might be open to the jury to conclude that F. was being penetrated when A. came into the room, there was insufficient evidence to justify the jury coming to the conclusion that this was a case of rape rather than attempted rape. Mr. Burns submitted that the case of Fox v. H.M. Advocate 1998 S.C.C.R. 115 did not assist in the present matter. In Fox the question was whether the corroboration was sufficient to distinguish between a criminal offence and an innocent explanation. In that situation it would be legitimate to take the view that all that is required is evidence to confirm or support the evidence of the principal witness that a crime had been committed. In the present case, however, there is no doubt that a crime was being committed but the question was whether the crime was one of rape or of attempted rape. In that situation something more was required than simply confirmation or support of the complainer F's evidence and this was not available. It was not available because A's evidence was equally consistent with either crime.
In our view A's evidence was amply sufficient to corroborate the evidence of F. There is not the slightest doubt from his evidence that his impression at the time when he entered the room was that the appellant was having intercourse with F. and was not merely attempting to do so. He gives a justification for forming that impression when he says "He was thrusting as you would when you are having sex or raping". This evidence, in our view, was quite sufficient to corroborate the evidence of F. that the appellant was engaged at the material time in having intercourse. We may say that we do not agree with Mr. Burns that there is a distinction to be drawn between evidence required to corroborate a crime as opposed to an innocent explanation and evidence which is required to corroborate one crime rather than another. On any view, however, we are entirely satisfied that A's evidence was quite sufficient to confirm or support, and therefore corroborate, F's evidence. We shall accordingly refuse the appeal against conviction.
The trial judge imposed a sentence of ten years imprisonment in cumulo. It is clear, however, that the assault charge played little part in the determination of this sentence and for practical purposes the sentence was ten years for rape. The ground of appeal in relation to the sentence is that the trial judge took into account the details leading to a previous conviction in January 1994 as narrated to him by the advocate depute at the request of the trial judge. It was submitted that such details should not have been taken into account and led the trial judge to impose a sentence which was excessive. The trial judge accepts that he did enquire of the advocate depute what were the circumstances of that conviction and that when he was given the details he took those details into account. The conviction was narrated in the schedule of previous convictions as being one for assault to severe injury and danger of life, for which the appellant received a sentence of four years imprisonment. The circumstances briefly were that the complainer had had a short term relationship with the appellant. The appellant went to her house, having been drinking, and then...
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