Spendiff v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 07 June 2005 |
| Neutral Citation | 2005 SCCR 522,[2005] HCJAC 68 |
| Date | 07 June 2005 |
| Docket Number | No 37 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-Clerk (Gill), Lord Penrose, Lord Cameron of Lochbroom
Justiciary - Procedure - Solemn procedure - Charge to jury - Rape - Clandestine injury - Sufficiency of evidence - Corroboration that complainer was sleeping - Mens rea - Distress - Whether misdirection - Whether miscarriage of justice
On 5 October 2000 the appellant was convicted on indictment on a charge of clandestine injury and rape. On 2 December 2000 he lodged a note of appeal against conviction on the ground that the trial judge erred in his charge to the jury in that he failed to advise the jury that the Crown required to show by corroborated evidence that the complainer was unable to consent to intercourse because she was asleep or otherwise unconscious at the time of penetration, and that the Crown had failed to show by corroborated evidence that the complainer was indeed asleep at the time of the penetration. After the note of appeal had been lodged the court issued opinions in the cases of Lord Advocate's Reference (No 1 of 2001) and McKearney v HM Advocate, the first of which had the result that clandestine injury could no longer be recognised as a crime distinct from rape. On 5 October 2004 the appellant lodged additional grounds of appeal based onMcKearney v HM Advocate. The additional grounds were that there was insufficient evidence to establish that the appellant had the necessary mens rea for rape; the trial judge had failed to give adequate directions on the issue of the appellant's mens rea; and the trial judge had misdirected that jury by suggesting that corroboration could be found in the complainer's distress, as this was apt to suggest that evidence of distress could be used to establish the appellant's state of mind.
Held that: (1) the trial judge gave separate directions in respect of clandestine injury and rape, and in relation to clandestine injury he explained that lack of consent was related to the complainer's unconscious condition and that proof by corroborated evidence of lack of consent in that context was required; and the directions relating to requirements that, arguably, had become redundant in the light of later authority did not amount to a miscarriage of justice in the circumstances (para 7); (2) there was a sufficiency of evidence to entitle the jury to convict the appellant of rape, and there was evidence independent from the complainer's direct evidence from which the jury could properly conclude beyond reasonable doubt that the complainer was asleep at the material time (paras 20-22); (3) proof of guilty mind could be inferred from the circumstances in which the act charged took place, and the removal of the requirement for proof of force in the definition of the crime of rape did not change in a fundamental way the processes of reasoning properly adopted in arriving at the view that the accused had the mens rea of rape (paras 30-33); (4) there was ample corroboration, on the test applicable at the time, of the overcoming of the complainer's will by force, and the inference from the primary facts that the accused knew that the complainer did not consent or was at least reckless whether she consented or not was an inference that the jury were entitled to draw, whether one had regard to the law as it was understood at the date of the trial or as now understood in the light of Lord Advocate's Reference (No 1 of 2001) (para 34); (5) the trial judge gave directions such as might have been required in a case not involving force, and on the relevance of the appellant's belief that the complainer was consenting party (para 35); and appeal refused.
Observed that changes in understanding of the essential characteristics of a crime can undoubtedly cause difficulties in cases in which trial and appeal diets span decisions crucial to the illumination of the common law; but having regard to the terms of the indictment, the allegations as a whole (and in particular those relating to the initial penetration while the complainer was unconscious) were criminal as the law was understood before Lord Advocate's Reference (No 1 of 2001), and remain criminal as the law is now understood, and it was unnecessary in this case to resolve the issue whether the court must apply the law of rape as now understood in disposing of appeals against convictions that occurred prior to Lord Advocate's Reference (No 1 of 2001) (paras 4-6, 36, 37).
Lord Advocate's Reference (No 1 of 2001) 2002 SLT 466 commented upon.
McKearney v HM AdvocateSC 2004 JC 87 commented upon.
Robert James Spendiff was charged on an indictment at the instance of the Right Honourable Colin David Boyd QC, Her Majesty's Advocate, the libel of which set forth a charge of clandestine injury and rape. The appellant pled not guilty and the cause came to trial before Lord Carloway and a jury in the High Court of Justiciary at Edinburgh. On 5 October 2000 the appellant was convicted of clandestine injury and rape and sentenced to a period of six years' imprisonment (reduced to five years and six months on 16 June 2005). On 2 December 2000 he appealed against conviction to their Lordships in the High Court of Justiciary. On 5 October 2004 additional grounds of appeal were allowed to be received.
Cases referred to:
Advocate's (Lord) Reference (No 1 of 2001), ReUNK 2002 SLT 466; 2002 SCCR 435
Boncza-Tomaszewski v HM AdvocateSCUNK 2000 JC 586; 2001 SLT 336; 2000 SCCR 657
Fox v HM AdvocateSCUNK 1998 JC 94; 1998 SLT 335; 1998 SCCR 115
Gordon v HM AdvocateUNK 2004 SCCR 641
Jamieson v HM AdvocateSCUNK 1994 JC 88; 1994 SLT 537; 1994 SCCR 181
McKearney v HM AdvocateSCUNK 2004 JC 87; 2004 SLT 739; 2004 SCCR 251
Mackie v HM Advocate 2001 GWD 26-1009
Megrahi v HM AdvocateSCUNK 2002 JC 99; 2002 SLT 1433; 2002 SCCR 509
R v BentleyUNKUNK [2001] 1 Cr App R 21; [1999] Crim LR 330; 1998 TLR 492
Smith v LeesSCUNK 1997 JC 73; 1997 SLT 690; 1997 SCCR 139
Yates v HM Advocate 1977 SLT (Notes) 42
Textbooks etc. referred to:
Hume, D, Commentaries on the Law of Scotland Respecting Crimes(4th ed, Bell & Bradfute, Edinburgh, 1844), vol i, pp 22, 23
MacDonald, JHA, A Practical Treatise on the Criminal Law of Scotland (5th Walker and Stevenson ed, W Green, Edinburgh, 1948), p 120
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Gill), Lord Penrose and Lord Cameron of Lochbroom, for a hearing on 26 and 28 April 2005.
At advising, on 7 June 2005, the opinion of the Court was delivered by Lord Penrose-
Opinion of the Court- [1] On 5 October 2000, the appellant was convicted at the High Court at Edinburgh of a charge that he assaulted K and:
'[W]hile she was in a state of unconsciousness and bereft of the power of resistance owing to her being asleep did lie beside her on the bed, pull her pants down, place her face down, lie on top of her, insert your private member into her private parts and did have sexual intercourse with her without her consent and thus having caused her to regain consciousness and awaken you ignored her demands that you stop, persisted in your conduct despite her protestations and you did rape her.'
The appellant lodged a note of appeal against conviction on 2 December 2000. Leave to appeal was granted on three of the original grounds then advanced:
'2. The trial judge erred in his charge to the jury on the law relating to that element of the libel which disclosed the crime of clandestine injury to a sleeping woman. The case of Fox v Her Majesty's AdvocateUNK 1998 SCCR 115 is authority for the proposition that the complainer's unconsciousness is a factum probandum which requires to be proved by the Crown with corroborated evidence (seeFox, supra p 118F). In his charge to the jury the judge failed to advise them of this burden saying instead (at page 22, line 2 et seq.) that for the completed crime of clandestine injury to be proved the Crown require to provide corroborated evidence of two things: firstly that penetration of the vagina took place and, secondly, that the complainer did not consent. It is submitted that that is a misstatement of the current law on clandestine injury inasmuch as it relieves the requirement upon the Crown to show, by corroborated evidence, that the complainer was unable to consent (or refuse consent) to intercourse because she was asleep or otherwise unconscious at the time of penetration. It is further submitted that in this case the Crown failed to show by corroborated evidence that the complainer was indeed asleep at the time of penetration.
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3. The trial judge erred in failing to advise the jury that because the only evidence which was available to them to corroborate either element of the libel (namely clandestine injury and rape) was the distress allegedly shown by the complainer, they would necessarily require to delete one of those elements as to fail to do so would be to allow one instance of distress to two separate crimes, thereby rendering the distress evidentially equivocal. …
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6. The trial judge erred in offering the jury a summary of the evidence of the complainer which failed to refer to a material discrepancy brought out in cross-examination. In evidence in chief she referred to feeling the complainer's [sic] penis inside her on waking up. In cross-examination she said that the first thing she felt was the weight and a jabbing pain "down there". She further said: "His penis wasn't inside me when I woke up. I felt him entering me because of the angle I was at". In such circumstances had the jury believed the version of events elicited under cross-examination they would have been obliged to acquit him of that part of the libel relating to clandestine injury. Accordingly it was contrary to the interests of justice to relate one version of the complainer's evidence to the jury and not the other contradictory one, this being particularly so when the evidence in the trial had lasted...
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