Gavin Livingstone Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lady Smith,Lord Eassie |
| Neutral Citation | [2014] HCJAC 102 |
| Published date | 15 January 2015 |
| Docket Number | XC634/13 |
| Date | 03 October 2014 |
| Court | High Court of Justiciary |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2014] HCJAC 102
XC634/13
Lord Eassie
Lady Paton
Lady Smith
OPINION OF THE COURT
delivered by LADY SMITH
in
APPEAL AGAINST CONVICTION
by
GAVIN LIVINGSTONE
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Paterson, Solicitor Advocate; Paterson Bell, Edinburgh
Respondent: A Stewart QC, AD; Crown Agent
3 October 2014
Introduction
[1] The appellant was found guilty, at a sitting of the High Court at Paisley, on 20 September 2013, of four charges: rape (charge 3), sexual assault with intent to rape (charge 5), rape (charge 7) and charge 4, which was libelled as a charge of rape, subject to deletions (see below). The complainer in charges 3, 4, and 5 was ”X”, a 16 year old girl. The complainer in charge 7 was “Y”, who was 19 years old.
[2] The appellant appeals against conviction on two grounds. The first is that the trial judge erred in refusing to uphold a submission of no case to answer in relation to charge 7: Criminal Procedure (Scotland) Act 1995 sec 97. The facts surrounding charge 7 are said to have been so different and so distant in time from those relating to the other charges that mutual corroboration (Moorov v HM Advocate 1930 JC 68) could not apply. The second is that the verdict returned by the jury in relation to charge 4 did not, after the deletions that they made, make sense; it was perverse.
[3] The appellant also appeals against sentence; the trial judge imposed an extended sentence of 13 years in which the custodial element was 10 years.
The charges and the jury’s verdicts
[4] Charge 3 involved a libel that on one occasion between 1 May 2006 and 31 March 2007, the appellant had, whilst X was asleep, penetrated her vagina with his fingers and then, when she woke, seized her by the hair, slapped her face, seized hold of her wrists, pushed her onto a mattress, lain on top of her and raped her. The jury convicted the appellant in terms of that libel.
[5] Charge 4 was a charge of rape. It involved a libel extending to various occasions between 1 May 2006 and 31 March 2007 and alleged that the appellant:
“…..did assault ‘X’…pull her hair, seize hold of her, bite her nipple until it bled, bite her body, slap her on her face, pull her hair, hold her down, touch her vagina whilst she was sleeping, sexually penetrate her vagina with (his) fingers whilst she was sleeping and…did penetrate her vagina with (his) penis without her consent and ..did thus rape her.”
The jury deleted the words “without her consent and …did thus rape her”. Their verdict was, accordingly, that the appellant:
“ …did assault ‘X’..pull her hair, seize hold of her, bite her nipple until it bled, slap her on her face, pull her hair, hold her down, touch her vagina whilst she was sleeping, sexually penetrate her vagina with (his) fingers whilst she was sleeping and …did penetrate her vagina with (his) penis.”
[6] Charge 5, after a deletion, involved a libel that, on a single occasion between 21 February 2007 and 31 March 2007, the appellant assaulted X by throwing food across the room, seizing her mobile telephone and throwing it across the room, following her into a bedroom, lifting her up, throwing her onto a mattress, lying on top of her and attempting to remove her clothing, all with intent to rape her. The jury convicted the appellant in terms of that libel.
[7] Charge 7 involved a libel that on 8 September 2012, the appellant had assaulted Y, slapped her on the face, seized hold of her hair, seized hold of her by the wrists, dragged her to a bedroom, pushed her onto a mattress, lain on top of her, slapped her, stroked her face and neck, repeatedly kissed her face, restrained her by the wrists, licked her face, seized hold of her ankles, pulled down her pyjamas and pants, forced her legs apart, rubbed her vagina with his hand, spat on his hand and rubbed her vagina, sexually penetrated her vagina with his fingers and penetrated her vagina with his penis, thus raping her, and thereafter masturbated in her presence. The jury convicted the appellant in terms of that libel.
[8] The events in all the charges took place in the appellant’s home.
The evidence
[9] The appellant and X were, at the time of the events described in charges 3,4 and 5, in a relationship; it lasted for about a year and had begun about a month before the incident in charge 3. They had met through their respective parents. X was sexually inexperienced when the relationship began. The relationship involved consensual sexual intercourse.
[10] In relation to charge 4, X ‘s evidence was that the appellant would have intercourse with her following conduct as described in the charge and that, although she did not consent to intercourse, she frequently did not resist and it was possible that the appellant would...
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