Peter Mulligan V. Her Majesty's Advocate

Act: Shead, Advocate; Rollo Davidson & McFarlane, Cupar

Alt: Stewart, Q.C., Advocate Depute; Crown Agent

18 June 2008

The Background Circumstances

[1] The appellant faced an indictment containing a single charge in the following terms:

"On 23 April 2004 at West Sands, St Andrews, Fife you did assault [the complainer] and did seize and pull her by the hand, push her to the ground, forcibly hold her down, pull down her trousers and underwear and you did rape her."

[2] The appellant lodged a special defence of consent and pled not guilty. He was convicted after trial on the charge, as libelled, on 4 May 2005. On 25 May 2005 an extended sentence in terms of Section 210A of the Criminal Procedure (Scotland) Act 1995 was imposed, the custodial term being one of five years imprisonment and the extension period being one of two years. By a Note of Appeal lodged on 25 August 2005, the appellant sought to appeal against both his conviction and sentence on several grounds. Leave to appeal against conviction was granted only on ground of appeal 2. Leave to appeal against sentence was refused.

[3] The circumstances of the offence, as disclosed in the evidence and as described in the report of the temporary judge, were as follows. The complainer, who was aged 14 years at the time of the offence, together with some of her school friends had purchased alcohol on the evening in question. They had added that to various bottles of coke and the like and had gone to join other school friends in the area of the West Sands in St Andrews, where young people tended to meet. The girls had consumed some of the alcohol when they met the appellant, then aged 26 and a friend, Leslie Kirk, aged 27. These two men had been driving in the appellant's motor vehicle when they offered the complainer and a friend a lift. That offer was accepted and a third schoolgirl friend was also picked up. The car was then driven to and fro in the town and near the beach, with these girls as willing passengers. At one stage, the complainer had been in the front passenger seat of the vehicle with the appellant and had willingly kissed him. At a later stage, one of the other girls had become alarmed at the way matters were developing and had wanted to leave the car to rejoin her other friends. She and the other girl had left the car at that stage, with the result that the complainer had been left alone with the appellant and his friend. At that time at least, it appeared that the complainer remained willingly with the appellant and may have expressed a desire to go on to the beach with him.

[4] In any event, the complainer did go on to the beach with the appellant. She claimed that he had pulled her down a sandbank and proceeded to commit the act complained of despite her asking him to stop. It appeared that a degree of force had been used to achieve this, but there was no question of the complainer being struck. In his interview with the police, the appellant conceded that he had had carnal connection with the girl, but claimed that it had been with her consent. He further explained that he had ceased connection before ejaculation, because she had said that she was a virgin. In fact, she was not, since she explained to the doctor who examined her afterwards that she had already had sexual intercourse on one occasion and also there was medical evidence to confirm that that had occurred. All these matters were before the jury, who came to the conclusion that the sexual intercourse complained of was against the complainer's wishes and that the crime libelled had been established.

[5] The temporary judge completes his account of the relevant events by explaining that it appeared that the complainer had lost her mobile telephone in the course of the events described. She had apparently gone back on to the beach to look for it, at which point the appellant and his companion had driven off leaving her. She was found near the place in question a few minutes later in a state of distress. She had then explained to a passing motorist, who had given her a lift back to where her friends were, that she had been sexually assaulted and confirmed that account when she met her friends again. The appellant had been traced through a mobile telephone number that some of the girls had been given by his friend. The appellant had voluntarily attended at a police station the next day and had given the same account of matters as he maintained throughout, namely that intercourse had taken place, but with the consent of the complainer. He had also stressed that the act had not been completed.

Ground of Appeal 2

[6] The only ground of appeal in respect of which leave has been granted is in the following terms:

"2. The Crown led evidence from Crown witness No. 16 D.C. David Lyall. He was one of the officers who conducted the two police interviews with the appellant. Labels 1 and 2, which were the tapes of said interviews, were played to the jury in their entirety. During cross-examination of this witness, counsel for the appellant put to the witness that there might have been other reasons for the fact that after the incident she was seen to be distressed. One of the reasons that was being advanced was that at the time of the incident, the complainer was a virgin and was distressed at having engaged in sexual intercourse, for the first time, with an older man, on a beach. The trial judge intervened and essentially indicated that it was not true that the complainer was not (sic) a virgin. Whilst the Crown were in possession of a police statement from the complainer, stating that at the time of the incident she had 'had sexual intercourse once before' and whilst the Crown had lodged a Section 275 application under the Criminal Procedure (Scotland) Act 1995 to elicit evidence that at the material time she was not a virgin (which application had been granted) the Crown chose, it is understood deliberately, not to elicit any such evidence anent previous sexual behaviour. Counsel for the appellant did not ask the complainer any questions about her previous sexual history. In the circumstances the trial judge's intervention was inappropriate, et separatim, had the effect or potential effect of undermining the defence position.

Separatim the Crown also called Crown witness No. 10 Kranti Hiremath, a forensic medical examiner with Fife Constabulary. She was the joint author of Crown Production No. 7 which was a record of a medical examination of the complainer conducted the day after the alleged incident. In that report, at page 3, it was recorded that the complainer 'had previously had sexual intercourse only on one occasion at the end of last year'. Again, no doubt due to the fact that the Crown had chosen not to ask the complainer herself about her previous sexual history, the Crown did not seek to elicit this hearsay evidence from this witness. Nonetheless at the end of her evidence the learned trial judge specifically asked the witness to tell the court what the complainer had told the police, and which the police had relayed to her, about the complainer's previous sexual history. Said question resulted in hearsay evidence being admitted.

Separatim in his report dated 25 May 2005 the learned trial judge stated at page 2, 'In his interview with the police, the accused conceded that he had had connection with the girl but claimed that it was with her consent. He further explained that he had ceased connection before ejaculation because she had said that she was a virgin. In fact, she was not, because she explained to the doctor afterwards that she had already had sexual intercourse on one occasion. All these matters were before the jury ...' Said matters were only before the jury because of the trial judge's actions.

Separatim in his charge to the jury the trial judge directed the jury that in finding corroboration for the lack of consent they could consider the evidence of distress as spoken to by other witnesses. Whilst he did say, at page 7, that the jury had to be satisfied that the distress was related to the intercourse and not just the general situation in which the complainer found herself, he went on to say at page 11: 'I might say in this regard that Mr MacKenzie's theory that he put to you for your consideration about her distress perhaps being related to her losing her virginity doesn't appear to square with the medical evidence ...'. Again that evidence was only before the jury because of the actions of the trial judge.

Separatim in his charge, at no stage (which is perhaps unsurprising in the context of the way in which the medical evidence came to be before the jury) did the trial judge direct the jury in relation to hearsay evidence. The trial judge's actions had the effect of undermining the appellant's position and so constituted a miscarriage of justice."

Submissions for the Appellant

[7] Having drawn attention to the terms of ground of appeal 2, counsel for the appellant stated that it had not been put to the complainer that she had had a sexual history, despite the order that had been made under Section 275 of the 1995 Act. He then referred to what had occurred during the course of the evidence of D.C. Lyall, as revealed in the transcript of his evidence. He had been one of the officers who gave evidence concerning a police interview with the appellant, the tape recording of which had been played. At page 45 of the transcript of evidence for 3 May 2005 this witness had been cross-examined by counsel for the appellant. It was suggested to him that one reason for distress on the part of the complainer "was because she was a virgin and she was upset at herself at 14 years of age giving herself...