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 having left the door of the flat ajar when he left; and that he had given differing accounts of the event both to the police and at judicial examination. The trial judge repelled the no case to answer submission and indicated that he considered that the distress alone might provide the necessary corroboration. In charging the jury the trial judge directed that the complainer's distress could support her in relation to the question of any reasonable relief on the part of the appellant.

[7] In advancing the appeal against conviction the appellant's solicitor advocate contended in terms of the first ground of appeal that the trial judge erred in repelling the submission of no case to answer under section 97 of the 1995 Act. In rape mens rea in relation to consent is a factum probandum and must be proved by corroborated evidence. Where, as in the present case, the Crown could not point to the use of any force as evidence of the necessary knowledge or recklessness on the part of the appellant in relation to the complainer's consent, proof of mens rea required to be established by other means. It was submitted that the complainer's distress later in that day could not amount to sufficient corroboration of the appellant's mens rea or absence of reasonable belief at the time of the offence. In support of that proposition reliance was placed on McKechnie v HMA 2004 SCCR 251 (paras 16 and 30); Spendiff v HMA 2005 SCCR 522 (paras 26 and 27); HMA v L 2008 SCCR 51 (para 17) and CJCS v HMA 2009 SCCR 655 (para 18). Miss Ogg argued that having regard to those authorities it was necessary in non forcible rape cases for there to be corroborated evidence that the appellant knew at the time of intercourse that the complainer was not consenting. In the circumstances of the present case there would require to be evidence from a source separate to the complainer which gave rise to an inference that the appellant knew that the complainer was not consenting. The trial judge erred in directing the jury that there were a number of additional circumstantial factors referred to by the Crown which were capable of supporting the complainer's account. The submission was that these factors were insufficient to corroborate the appellant's state of mind at the time of the offence and could not reasonably give rise to any inference as to the appellant's state of mind. However, while the submission in respect of the first ground of appeal was thus initially presented as a challenge to the rejection by the trial judge of the submission made at the close of the Crown case, it became apparent in the course of the hearing that the real issue was whether, the jury having deleted the averment in the libel that the complainer was, by reason of her consumption of alcohol, incapable of giving or withholding consent, and the complainer's having accepted that she may well have consented to the initiation of sexual intercourse, there was a sufficiency of evidence to warrant conviction in respect of the complainer's account of her having indicted her wish to discontinue intercourse by saying "no" and the appellant's not having instantly desisted, but having continued for some 20 seconds.

[8] The Crown's position was to accept that the issue of sufficiency was central to the appeal. The Advocate depute accepted that it was right for the court to consider the question of sufficiency of evidence on the view that in light of the deletions made by the jury the basis for the conviction was the persistence by the appellant in the act of intercourse for the 20 seconds or so after the complainer had said "no", notwithstanding that this point had not been properly focussed in the grounds of appeal. The Crown position, and the basis upon which the appeal was resisted, was that even if the complainer had initially consented to sex, such consent was withdrawn when she said "no". The evidence was that the appellant had ceased to have intercourse only some 20 seconds after the complainer said "no". If conduct continues to take place after consent has been withdrawn, it continues to take place without consent. It was submitted that there was no de minimis rule so that if intercourse continued, even for only 20 seconds or less, after a complainer revoked her consent then the crime of rape was committed. Because the argument before us related to the absence of corroborative evidence, it is not necessary for us to express a concluded view on the prima facie stark submission that the mere indication -by a single, short word, of some unwillingness by one, previously willing, party further to continue in what is by its nature a passionate activity makes the other party guilty of a criminal offence if that party does not instantly desist, with no interval whatever for appreciation of the fact that consent has been revoked and reaction to it.

[9] In support of her contention that there was corroborative support for the very altered scenario of the complainer's testimony of withdrawal of consent pendente copula, and the appellant's lack of instant desistance the Advocate depute relied on largely the same circumstances, albeit with some elaboration, as had been advanced before the trial judge at the time of the no case to answer submission as providing corroboration of the appellant's knowledge that there was no consent to intercourse. These were the lack of a prior relationship between the parties which, in light of the evidence was said to be more forceful having regard to, the complainer's failure to identify the appellant at an identity parade; the front door of the flat having been left open by the appellant when he left, indicating a hasty exit; the theft of the money and the mobile telephone; the fact that the complainer was menstruating at the time of the alleged offence; and de recenti distress.

[10] The crime of rape is now a statutory offence governed by the 2009 Act that for the purposes of the present appeal, the relevant provisions of that Act are in the following terms:

"(1) Rape

 

(1) If a person ("A"), with A's penis -

 

(a) without another person ("B") consenting, and

(b) without any reasonable belief that B consents,

 

penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.

 

..."

 

"12. In Parts 1 and 3, "consent" means free agreement (and related expressions are to be construed accordingly).

 

13. (1) For the purposes of section 12, but without prejudice to the generality of that section, free agreement to conduct is absent in the circumstances set out in subsection (2).

 

(2) Those circumstances are -

 

(a) where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it, ...

 

14. (1) This section applies in relation to sections 1 to 9.

 

(2) A person is incapable, while asleep or unconscious, of consenting to any conduct.

 

15. (1) This section applies in relation to sections 1 to 9.

 

(2) Consent to conduct does not of itself imply consent to any other conduct.

 

(3) Consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during, the conduct.

 

(4) If the conduct takes place, or continues to take place, after consent has been withdrawn, it takes place, or continues to take place, without consent.

 

16. In determining, for the purposes of Part 1, whether a person's belief as to consent or knowledge was reasonable, regard is to be had as to whether the person took any steps to ascertain whether there was consent or, as the case may be, knowledge; and if so, to what those steps were."

 

[11] In terms of section 1(1) of the 2009 Act, the crime of rape is committed when a person penetrates the vagina, anus or mouth of another person without that other person's consent or without any reasonable belief that the other person is consenting. The present case is concerned with an allegation of vaginal rape. Section 12 of the 2009 Act provides that "consent" means free agreement and, in terms of section 15, consent may be withdrawn at any time including during the course of conduct. If consent is withdrawn and the conduct continues, it is without consent. In judging whether a person's belief as to consent is reasonable, regard is to be had as to whether the person alleged to have committed the offence took any steps to ascertain whether was consent (section 16 of the 2009 Act). It is against this legal background that the factual evidence in the current appeal requires to be considered.

[12] While in this case it is clear that the complainer had consumed significant quantities of alcohol before she went to the club and thereafter in the club during the hours prior to these events and while the case contended for by the Crown before the jury was that the extent of the complainer's intoxication was such that she was incapable of giving or withholding consent (cf section 13(2)(a) of the 2009 Act) the jury rejected that contention. In her evidence the complainer accepted that she may have consensually engaged in kissing with the appellant outwith her flat in the early hours of the morning of 11 March. Further, she accepted that she may have admitted the appellant to her flat voluntarily. Importantly, she also accepted that she may well have consented to intercourse at its inception. It may also be noted that while the complainer accepted that when she said "no" she was naked in bed with the appellant, the prosecution departed from the averment in the libel that the appellant removed the complainer's clothing. The Crown's position thus came to be one of reliance on the evidence from the complainer that consent was withdrawn during the course of intercourse. As already indicated, the complainer's evidence was that for a period, which on the evidence was as short as some 20 seconds, intercourse continued after she had indicated, by saying no, and thereafter "wriggling away", that her consent had been withdrawn. The Advocate depute's position was that provided she could establish that there was sufficient evidence to corroborate withdrawal of consent this was sufficient to justify conviction. As she put it there was no scope for any latitude and that any continuation of intercourse after withdrawal of consent was sufficient to constitute the crime of rape.

[13] The critical question argued before us was therefore whether there was sufficient evidence to provide corroboration of the complainer's evidence of withdrawal of consent and the appellant's persistence in the sexual intercourse, knowing of the revocation of consent or recklessness as to whether it continued. Most of the factors invoked by the trial Advocate depute in resisting the submission of no case to answer have no relevance in the light of the jury's deletions and the limited focus on rape allegedly constituted by persistence in intercourse for some very brief interval after withdrawal of consent in sexual intercourse initiated and pursued consensually. The Advocate depute argued for the door to the flat having been left open when the appellant left; but in the context of the defective state of the lock this factor, if it ever could have corroborative significance, evaporates. She also founded upon the appellant's confession to having stolen the complainer's mobile telephone and some cash, but eventually accepted that the law did not enable the transfer of criminal intent from one crime, such as the theft charge, to a different charge, such as the alleged rape. None of the factors relied upon by the Crown as providing corroboration for withdrawal of consent appeared to us to provide any evidence as to the appellant's knowledge or state of mind during the very short interval time after consent was said by the complainer to have been withdrawn.

[14] For those reasons we considered that the appellant's first ground of appeal, re-focussed in the way which we have indicated, was well founded. We accordingly sustained the appeal against conviction in relation to charge 1. It was, and is, not necessary for us to consider the remaining grounds of appeal against conviction on that charge.