Moore v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 26 June 1990 |
| Date | 26 June 1990 |
| Docket Number | No. 58. |
| Court | High Court of Justiciary |
JC
L.J.-G. Hope, Lords Cowie, Kirkwood.
Evidence—Corroboration—Rape—Whether distress or injuries seen at least 12 hours after alleged rape sufficient to corroborate complainer's allegation of rape.
A pannel was convicted in the High Court of Justiciary at Glasgow of the abduction and rape of a woman. Corroboration of the complainer's account was to be found in her alleged distress and certain minor injuries discovered on her at least 12 hours after the alleged incident, when she was seen by her aunt. In this respect, the trial judge (Lord Coulsfield) had directed the jury that the question they had to consider was whether there was a sufficiently close connexion between the distress and the events which she had described in evidence. The pannel appealed against conviction, arguing that these items of evidence were too remote as to amount, in law, to Corroboration.
Held, (the Crown conceding that the injuries alone were insufficient to support the conviction), (1) that, it would be absurd to apply some fixed test of time in terms of minutes or hours after the event for distress to amount to Corroboration of the complainer's account; but (2) that, the interval of time had been so long, interrupted as it had been by the complainer's journey from place-to-place where others must have seen her before her arrival at the aunt's house, that her distress at that stage was not capable, in law, of corroborating her account; and, accordingly, (3) that, there had been a misdirection which had amounted to a miscarriage of justice; and appeal allowed and conviction quashed.
Observed, per the Lord Justice-General (Hope), that the question which the jury should have been told to consider was not whether there had been a sufficiently close connexion between the distress and the events which she described, but whether it was caused by the rape and was, thus, so independent of her own account as to amount to a separate source of evidence that a rape had occurred.
Observed, per Lord Cowie that the general rule was that the judge should direct the jury that before they can regard the evidence of the victim's distress as Corroboration, they must be satisfied beyond reasonable doubt that the distress of the victim had been caused by the events of the alleged rape and was not due to some extraneous factor such as shame or remorse; but there would be cases where the circumstances following the event, including the passage of time would persuade the trial judge that no reasonable jury, properly directed, could hold that the distress had been caused by the alleged rape and, in that situation, if the necessity arose, the trial judge should make clear to the jury that they could not regard the distress of the victim as corroboration of her evidence.
Neil McTaggart Moore, was charged on an indictment at the instance of the Rt. Hon. The Lord Fraser of Carmyllie, Q.C., Her Majesty's Advocate, the amended libel of which set forth that:—"[O]n 9th September 1989 in Great Western Road, Glasgow, you did abduct [E. C.], care of Strathclyde Police, Clydebank, convey her in a motor vehicle to a house at 25 Havelock Street, Glasgow and on arrival at said house you did assault her, seize hold of her, pull her from said motor vehicle, drag her into said house, repeatedly slap her on the face, repeatedly throw her on to a bed in said house, lie on top of her, kneel on her arms and hold her down, pull off her shoes, trousers, tights and pants, kick her on the leg, repeatedly threaten to kill her, compress her throat with your hands and repeatedly rape her all to her injury."
The cause came to trial before Lord Coulsfield and a jury in the High Court of Justiciary at Glasgow between 4th and 8th January 1990. After the Crown case had closed, counsel for the pannel submitted that there was no case to answer in terms of sec. 140A of the Criminal Procedure (Scotland) Act 1975. He cited Begg v. TudhopeUNK 1983 S.C.C.R. 32 and argued that there was insufficient corroboration to prove the charge of rape in respect that the distress exhibited by the complainer to her aunt occurred some 12 to 13 hours after the alleged rape. The trial judge, having heard the advocate-depute in reply, repelled the submission; and the defence thereafter led evidence. On 8th January 1990 the jury, by a majority verdict, found the pannel guilty of the amended charge. Lord Coulsfield thereafter sentenced the pannel to a term of imprisonment of 12 years. The appellant thereafter appealed against conviction to the High Court of Justiciary by way of note of appeal.
Lord Coulsfield's charge to the jury was in, inter alia, the following terms:—"[O]n this occasion Miss C. did say something to her aunt. She said something to her aunt about 12 hours or so after the end of the events which she described as taking place on the previous night. So that there is a very considerable gap in time. And there is a question whether she might not have said something to someone else before that, whether she might not have said something to Mr F., although I think she herself said that she did say something to Mr F. about what had happened to her. It is a question for you whether you think that in talking to her aunt, as I say, about 12 hours after the event Miss C. was taking advantage of the first natural or reasonable opportunity that she had to confide in someone and whether, if so, anything that she said on that occasion helps you in assessing whether she's a truthful and reliable witness. [T]he question on which the Crown have to satisfy you is that there is corroboration of Miss C.'s evidence that the sexual intercourse was obtained forcibly and against her will. That is that it was rape and not sexual intercourse by consent. And there are two matters which you can look to under this head, as I understand the Crown argument. In the first place there's the evidence about the injuries which Miss C. sustained. And you have seen the photographs of those injuries and you have heard read over the essential parts of the medical report which...
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