Kenneth Blyth V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Johnston,Lord McEwan |
| Court | High Court of Justiciary |
| Date | 26 August 2005 |
| Docket Number | XC413/04 |
| Published date | 19 October 2005 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Johnston Lord McEwan
| Appeal No: XC413/04 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION by KENNETH JOHN BLYTH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Carroll, solicitor advocate, McClure; McClure Collins
Respondent: Dr A. Brown, solicitor advocate, A.D.; Crown Agent
26 August 2005
[1]On 6 February 2003 at the High Court in Edinburgh the appellant was convicted of a charge of rape. According to the terms of the charge of which he was convicted, in a portacabin at a building site in Edinburgh on 30 September 2002 he
"did assault (the complainer) pull her to the floor, pull down her lower clothing, lie on top of her, force her legs apart, penetrate her hinder parts with his private member, turn her over, remove her clothing and expose her breasts, kiss her on the breasts and did rape her all to her severe injury".
The appellant pled guilty to a second charge which libelled that he committed a breach of the peace on 8 October 2002 by telephoning another woman by means of a mobile telephone and leaving an answer phone message threatening violence towards her and placing her in a state of fear and alarm for her safety.
[2]The complainer in the rape charge gave evidence that she visited a public house which was near her house twice during the evening of 29 September 2002. According to the report of the trial judge, she said that on the first occasion she was in the company of friends, one of whom was C, with whom she had had a lesbian relationship for almost four years. She saw the appellant there, but did not know him or speak to him. She returned to the public house on her own at about 10:45 p.m. She left at about 12:30 a.m. in the company of the appellant who had been speaking to her over the last hour. He told her that he was a security guard on a building site. She accepted his invitation to have a cup of tea in a portacabin on the site. When they entered it she asked if she could use the toilet. However, the appellant pushed her forward, so that she fell on to the floor. He closed the door and put out the lights. She got up on to her hands and knees. The appellant unfastened her jeans and pulled them down with her shorts. He attempted anal penetration. He tried three times before he succeeded. She was asking him to stop but got no response. It was very painful when he penetrated her. He turned her over and penetrated her vagina. She tried to push him away. He used his legs to keep her legs open. Penetration lasted for five or six minutes. He pushed up her shirt and touched and kissed her breasts. He said to her that the only reason that she was a lesbian was because she did not know what a good man was. She was asking him to stop when he penetrated her. She repeatedly told him to get off her and leave her alone. He could have been in no doubt. Eventually, he withdrew and got up. Both of them adjusted their clothing. She left and went home where she went to have a bath. C got up and spoke to her. The complainer told C what had happened. C told her not to have a bath and telephoned the police who arrived 10 minutes later. Thereafter the complainer was medically examined. The complainer stated that there were marks on her which had not been present before the incident. Her anus was very painful and the medical examination was very uncomfortable. She stated that she had not consented to the incident. She was not interested in men.
[3]C gave evidence that in the public house she had told the appellant about her lesbian relationship with the complainer. After she returned home with the complainer she went to bed, whereas the complainer went out again. When the complainer eventually returned she heard her running a bath. This seemed to her to be unusual. She got up to see whether the complainer was all right. The complainer did not seem to be herself, but was very upset. She told her that she had been raped by the security guard at the nearby building site. C knew whom she meant. She told the complainer not to have a bath and telephoned the police immediately. When the police came, the complainer was in a state of shock. She was scared. She was shaking so much that she could not hold a cup of tea. One of the police officers who attended gave evidence that the complainer became upset when he asked her questions. She had trouble speaking as if she was trying to stop herself from sobbing. Her hand was shaking so much that she had to put down her cup of tea.
[4]Evidence was given by a police surgeon who examined the complainer later on 30 September 2002. She noted two areas of recent bruising, two on her arms and two on her breasts. She saw no injury on examination of the genitals. She expressed the opinion that this was of no significance as very few victims had such injury if they were beyond the age of puberty. However, she found two deep lacerations to the anus, both of which were bleeding. The complainer was clearly in pain. She also found other superficial abrasions in the same area between the one o'clock and the seven o'clock positions. She gave evidence that her findings were consistent with the account given by the complainer.
[5]The appellant lodged a special defence in which it was stated that he intended to found on a defence of consent in respect to the charge. He gave evidence on his own behalf. He stated that he got into conversation with the complainer after she returned to the public house about 11 p.m. She told him that she had fallen out with C (which was disputed by the complainer and C). They exchanged addresses and telephone numbers. She was looking for work. When they left together after closing time she was "tipsy". He asked her to come to the portacabin for coffee. She asked where the toilet was. He followed her. He wanted a 'one night stand'. She kissed him on the lips. They took off their clothes. He put a sleeping bag and pillow on the floor, where they lay down beside each other. They had sexual intercourse, first when he was on top, and then when she was on top. She put a condom on his penis. They tried a number of different positions. She leant on a table with her legs apart. He tried to penetrate her vagina from the back but was unsuccessful. He said that was probably when her anus was injured. She never struggled, said "no" or told him to stop. He never thought that she was not consenting. When he ejaculated she wanted more. He told her that he was too tired. She got a bit upset and left. He walked with her to the gate. She said that she would like to see him again 'on a casual basis'. He said that he was not so sure. The police arrived the following morning and detained him. He denied rape when he was interviewed by the police.
[6]It is not disputed that there was sufficient evidence to entitle the jury to convict the appellant. The grounds on which his appeal is based maintain that the trial judge misdirected the jury in a number of respects.
[7]As is set out on page 11-13 of the transcript, the trial judge gave the following directions to the jury:
"Now, the first crime that is mentioned in the charge, ladies and gentlemen, is assault. I am sure you are aware of what...
To continue reading
Request your trial