Note Of Appeal Against Conviction By Craig Wilson Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Malcolm,Lord Justice General |
| Judgment Date | 29 November 2016 |
| Neutral Citation | [2017] HCJAC 3 |
| Docket Number | HCA/2016 |
| Published date | 19 January 2017 |
| Court | High Court of Justiciary |
| Date | 29 November 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 3
HCA/2016/185/XC
Lord Justice General
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
CRAIG WILSON
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Dean of Faculty (Jackson QC), CM Mitchell; Faculty Criminal Appeals Unit (for McLennan Adam Davis, Ayr)
Respondent: Niven Smith AD; the Crown Agent
29 November 2016
Introduction
[1] On 9 March 2016, at the sheriff court in Kilmarnock, the appellant was convicted of a charge which libelled that:
“on 12 April 2014 at ... Saltcoats you ... did assault [CD] ... then aged 20 years ... and did repeatedly put your arms around her, repeatedly kiss her on the lips and sexually penetrate her vagina with your fingers all while she was under the influence of alcohol and asleep and incapable of giving or withholding consent;
CONTRARY to Sections 2 and 3 of the Sexual Offences (Scotland) Act 2009”.
On 30 March 2016, he was sentenced to 30 months imprisonment.
[2] The issues raised in the Note of Appeal all relate to whether the sheriff misdirected the jury in relation to evidence of distress, which the complainer displayed to a friend about 30 hours after the sexual assault was alleged to have occurred, and to a statement made by her at that time. However, as the oral argument developed, the submission came to be one relating more to the sufficiency of the evidence available to corroborate the complainer’s account of lack of consent.
Evidence
[3] During the evening of Friday 11 April 2014, the complainer, who was aged 20, had been at a party to mark the departure of her friend JM from their mutual workplace. The appellant, who was 41, was the partner of JM. It was to the flat occupied by JM and the appellant that those at the party returned. The complainer had accepted an offer to stay overnight. She had changed into pyjamas, given to her by JM. The last thing that the complainer recalled, before falling asleep on the livingroom floor, was drinking Bailey’s.
[4] One of the company, FC, left the flat at about 5.30am, at which point she described both the appellant and the complainer as having been asleep on the livingroom floor for some time.
[5] The complainer recalled “coming round” and being touched sexually. She had been unable to move and had fallen asleep once again. She had been aware of something being put inside her, perhaps fingers. When she awoke for a second time, she found herself on a couch with the appellant on top of her. He had put his lips to hers.
[6] The complainer awoke on the following morning (Saturday 12 April) at about 10.30. She felt sore in the vaginal area and her bottom. She sent a text to her boyfriend to come and pick her up. She did not mention the incident in the text because, she said, she thought that he would have reacted badly and probably attacked the appellant. There would have been “World War 3”.
[7] The complainer had spoken to JM in the morning, but had not mentioned the incident to her. She maintained that she had done this deliberately, as she did not want to give an “inkling” that she was aware of what had happened to her until she had left the flat. She was “worried” for JM. JM gave evidence that she had noticed nothing out of the ordinary in the complainer’s behaviour.
[8] By 12 noon, the complainer had returned home. She had not spoken to her mother, but had simply gone upstairs to her room, had a shower, and gone to bed. She had been shocked and scared and had not known what to do at that point. Her mother described her as appearing very tired, but sober. She was “very inward”, although normally very lively. She had not spoken. She had slept all day on the Saturday through to the Sunday. She had not gone to work on the Monday, but had remained in bed.
[9] On the early Saturday evening, there had been an exchange of Facebook messages between the complainer and JM. JM had said that FC had left “after u n [the appellant] crashed out on the floor”. JM asked if the complainer wanted to come over and finish off the wine. The complainer declined the invitation and said that she would pick her car up on the Sunday. The appellant became involved in the exchange, which mainly concerned the amount of drink consumed. There was no mention of any sexual encounter.
[10] The first person in whom the complainer confided was her best friend, LM. The complainer was not asked what she had said to LM, although she did say that she had been really upset when she had spoken to her. LM described herself as having been the complainer’s best friend for a period of 10 years, since primary school. On the Sunday afternoon, the complainer had sent her a text to ask if they could meet. The complainer drove to near LM’s house, where they met in a car park. LM thought that this was strange, but it was because the complainer had wanted to speak with her in private, rather than at one of their houses where their mothers might be present.
[11] LM gave evidence without objection that the complainer was in an abnormal mood. She had been crying and was quite upset. As the complainer told her what had happened, she had become hysterical, breaking down and crying. They were in the car for about two hours before driving around. LM had stayed with the complainer for most of the night. She was asked if the complainer had mentioned any physical “ailments”. She said that she knew that she was in pain from something which had happened to her back passage. Apart from that, she was not asked to state what the complainer had said. LM was not cross-examined.
[12] The appellant was interviewed by the police. He admitted consensual sexual contact with the complainer; stating that he had “assumed” that he had inserted his fingers into the complainer’s vagina. The complainer had not been asleep.
[13] There was no submission based on an insufficiency of evidence, nor was there a request for a direction on the corroborative effect of the distress.
[14] The appellant gave evidence that he had fallen asleep, but had woken up at about the time FC left (5.30am) before falling asleep again. His next memory was of being on the floor with the complainer, laughing. The complainer was kissing him. They had touched each other and he had put his hand inside her pyjama bottoms. He remembered touching the complainer in the vaginal area and assumed that he may have penetrated her.
Charge to the jury
[15] The sheriff directed the jury that it was for the Crown to prove that the complainer had been penetrated vaginally by some part of the appellant’s body and touched by him sexually. The conduct had to be intentional or reckless and the complainer must not have consented. The sheriff explained that the issue was whether what had happened between the appellant and the complainer had been consensual or not. The appellant maintained that the complainer had been a willing participant and it was for the Crown to prove absence of consent.
[16] The sheriff then turned to certain aspects of the evidence and, in particular, the evidence from LM about what had happened on the Sunday evening. He observed that there had been no detail about the content of the discussion between the complainer and LM, other than in relation to the complainer reporting pain. Nevertheless, having directed the jury that what the complainer had said could not corroborate her own evidence, the sheriff did say that a recent statement was admissible for the limited purpose of helping in the assessment of the complainer as a witness. If what she had been saying to LM appeared to be similar to what she had said later in court, then that consistency could reflect favourably upon her credibility and reliability:
“... though the longer the delay between the incident ... and her account of it to the witness ... then the less recent it is and the less value it has in supporting her credibility and reliability. ... the less detail there is ... then the less value it would have in supporting her evidence. So again it’s a matter for your assessment”.
[17] The sheriff went on to deal with the evidence of LM about the complainer’s distress. He explained that this was “simply a piece of circumstantial evidence” which the jury could accept or reject. It could not corroborate the complainer’s evidence about what had happened during the incident, but it could confirm that she had suffered some distressing event. It could corroborate her evidence about her state of mind at the time of, or soon after, the incident. Her distress, as spoken to by LM, could corroborate the complainer’s testimony that she had not consented to what had taken place. “To that extent, it could support her credibility as a witness”. Before it could be regarded as corroboration, the jury had to be satisfied that the distress was genuine and that it was due wholly or partly to her not having consented to what the appellant had done and not to some other cause. The sheriff explained that it had been suggested by the defence that the complainer’s distress could have been as a result of fear of being exposed as having cheated on her boyfriend. He therefore said that the jury had to look at the evidence about distress “carefully” and to decide what was responsible for it.
Submissions
Appellant
[18] There were three grounds of appeal. The first was phrased as a misdirection in relation to the evidence of distress. It came to be a submission that this evidence should not have been regarded as providing corroboration. There was accordingly insufficient evidence of lack of consent. In relation to the use of distress as corroboration, there were circumstances which should persuade a judge that no reasonable jury could hold that the distress had been caused by the alleged attack (Moore v HM Advocate 1990 JC 371; Cannon v HM Advocate 1992 JC 138; and McCrann v HM Advocate 2003 SCCR 722). In such...
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