Rogers Mutebi V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Brailsford,Lord Philip |
| Neutral Citation | [2013] HCJAC 142 |
| Published date | 05 November 2013 |
| Year | 2013 |
| Court | High Court of Justiciary |
| Docket Number | XC506/12 |
| Date | 05 November 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 142 | |
| Lord Eassie Lord Brailsford Lord Philip | Appeal No: XC506/12 NOTE OF REASONS delivered by LORD BRAILSFORD in APPEAL AGAINST CONVICTION by ROGERS MUTEBI Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Ogg, Solicitor Advocate; Paterson Bell, Edinburgh
Respondent: Wade, Q.C., AD; Crown Agent
5 May 2013
[1] On 25 July 2012, at the High Court in Glasgow, the appellant was convicted of two charges, the first being a charge of rape, and the second a charge of theft. In its original form charge 1 libelled that, on 11 March 2011, at an address in Glasgow, the appellant did assault-
"[A.T.]while she was under the influence of alcohol, unconscious and incapable of giving or withholding consent, and after she had regained consciousness kiss her, remove her clothing, lie on top of her, penetrate her vagina with your penis struggle with her and you did thus rape her (Contrary to Section 1 of the Sexual Offences (Scotland) Act 2009)."
The words in italics and underlined - namely "remove her clothing" and "struggle with her" were deleted by the Advocate depute at the conclusion of the Crown case, she accepting that there was no evidence to support any allegation of a "forcible" rape. The words in italics - namely "unconscious and incapable of giving or withholding consent, and after she had regained consciousness" were deleted by the jury when returning its verdict. The second charge libelled that on the same date and at the same locus, the appellant stole a mobile telephone and £170 of money. This charge is not subject to appeal.
[2] The evidence relative to these charges as reported by the trial judge may be summarised as follows. The complainer was a 25 year old post-graduate student who was studying at Glasgow University. In March 2011 she shared a flat, the locus of the offences, at an address in Glasgow with other students. Her evidence was to the effect that on the evening of 10 March she had gone with friends to a nightclub in Glasgow. Before going to the nightclub she had gone to the flat of a friend and had consumed alcohol there. She had carried on drinking at the nightclub. She left the nightclub in the early hours of the morning of 11 March. At this point it may be interposed that CCTV footage from the door of the nightclub showed her sitting on the pavement outside and apparently dropping her mobile phone and scrabbling around to recover it from the ground. She was seen setting off in the street outside the nightclub, unsteady on her feet. Reverting to the complainer's evidence in chief, she deponed that she remembered being at the door of the close wherein the flat in which she resided was situated. She was with a man - the appellant - whom she did not know. She accepted that they kissed outside her flat. She then remembered being in the bathroom in her flat and thereafter recalled being in her bed, unclothed, with the appellant, who was also unclothed. Her initial position in her evidence was that she recalled "coming to" in her bed with the appellant lying on top of her having sex with her. She maintained that she then said "No" but the appellant had continued. She stated that she tried to push him away, with her hands on his chest, but did not succeed. She eventually managed to wriggle to the side and the intercourse ceased. She estimated that penetration had continued for "maybe 20 seconds" before she had succeeded in wriggling away. In cross examination the complainer conceded that it was well possible that she had consented at the outset to intercourse; she could not remember one way or the other in relation to the issue of consent. She also accepted in cross examination that it was equally possible that she had admitted the appellant to the flat using her own key.
[3] After these events the appellant left the flat leaving the front door open and taking with him AT's mobile telephone and £170 in cash which had been in a bag at the bottom of her bed. AT was unaware of that. These events form the gravamen of charge 2 on the indictment which - as already indicated - is not subject to appeal. It should however be mentioned that we were informed that the evidence at the trial was to the effect that the lock on the door was defective in that the "Yale" type lock did not operate and the door required to be locked from the inside by a mortice lock key.
[4] Later on the morning of 11 March, and after the appellant had left the flat, AT went into a flatmate's room and told her what had happened. AT was visibly upset. Another flatmate arrived at a later stage, there was some discussion and the police were called. AT subsequently gave an account of events to the police and was medically examined. No injuries were found. She was noted to be menstruating at the time. Traces of semen containing DNA matching the profile of the appellant were found on vaginal swabs taken from AT.
[5] At police interview the appellant initially gave an account of events which was inconsistent with the complainer's account. His final position at police interview was that consensual intercourse had taken place after which he got up and left the flat. At judicial examination he admitted to stealing AT's phone and cash. He said that he and AT had met by chance on the night in question. They were both drunk. They shared a taxi to her flat where consensual intercourse took place.
[6] At the close of the Crown case a submission was made under section 97 of the Criminal Procedure (Scotland) Act 1995. The basis of the submission was that there was insufficient corroboration of the offence of rape and in particular there was no corroboration of the requirement of reasonable belief on the appellant's part as to the complainer's lack of consent. It was submitted that the complainer's distress later on the day of the event was insufficient to corroborate the complainer's account in circumstances where the crime did not involve force. In resisting this submission the Advocate depute sought to rely upon a number of factors which were said to provide the necessary corroboration. These were the fact that the parties had not previously been in a relationship; that the complainer was menstruating at the relevant time and was wearing a tampon and - according to the Advocate depute -[1] would not have wanted to have sex at such a time; that the complainer was very much under the influence of alcohol; evidence of her distress later in the day; the appellant's admission to stealing the complainer's mobile phone and money; the appellant's...
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