Barry Martin Dalton v. Her Majesty’s Advocate [2015] HCJAC 24

Note of appeal against conviction:- On 25 June 2014, following a trial at the High Court at Perth, the appellant was convicted of 5 charges relating to various assaults on previous partners together with a charge of repeatedly raping his partner KL contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The appellant was sentenced to a cumulo period of 10 ½ years imprisonment including 8 years for the rape charge. Leave to appeal against sentence was refused and the appeal related to the contention that the trial judge misdirected the jury in respect of 9 matters and the issue for the appeal was whether these alleged misdirections were material and, if so, what effect they had. The alleged misdirections were:- (1) the directions in relation to what was a mixed statement were inadequate. Although the trial judge told the jury that they could take into account the answers given by the appellant, he did not give them any assistance on how to do this. Specifically, he did not direct the jury that, if they believed the appellant’s denials, or if they provided the jury with a reasonable doubt, they should acquit; (2) the trial judge had erred in describing the police interview as not helping “terribly much” and this direction was “prejudicial”; (3) the trial judge did not explain to the jury that they were entitled to accept part of the accused’s interview and not other parts; (4) the trial judge had misdirected the jury in telling them that they did not have to look “very far to find corroboration” if they believed the complainer; (5) the directions in respect of distress were inadequate and the trial judge had not properly directed the jury in respect of the use of distress, given that it was open to the jury to conclude that her emotional state had been due solely to the physical assaults and not to any lack of consent to intercourse; (6) the trial judge had misdirected the jury by incorrectly summarising the appellant’s position in a fundamental and prejudicial way and the impression would have been that the appellant had somehow conceded that the first incident of sexual intercourse may have been without consent which not been the appellant’s position; (7) the trial judge had failed to recognise that, although there was a single charge, it libelled three separate instances of rape. The fact that the Crown had libelled them within a single charge did not alter that each allegation of rape required to be corroborated as they could not all be regarded as part of a single continuing crime and the suggestion that, if they believed the complainer about the first incident, all they had to do was to assess her evidence in relation to the second and third incidents was a misdirection; (8) the trial judge had told the jury that there was “no direct evidence that he did honestly believe” that the complainer was consenting as there was such evidence in the police interview; and (9) the trial judge’s inversion of the question of reasonable doubt caused by him asking the jury to consider why a person who had battered someone would believe that she would be willing to have sex that the appellant’s position lacked credibility. Here the appeal was refused, with the exception of the reference to the “repeated” elements of the rapes which in turn led to a reduction in the sentence on the rape charge to 6 years. The court observed that it was concerning the number of criticisms of the judge’s charge and that some of the terms used could have been more precise and in line with the phraseology used in the established authorities. The court also noted, however, that inprecise wording does not necessarily amount individually or collectively to a material misdirection. In response to the various criticisms the court stated that:- (1) the jury should have been directed to consider the whole statement and determine whether the whole or any part of it is accepted as truth. If the jury accepted an exculpatory element of the interview, or if it raised a reasonable doubt, they must acquit the accused of the relative part of the libel. The direction which was given was deficient but was in fact favourable to the appellant; (2) the judge’s comment, about the value of the interview being limited, was justified in the circumstances and a judge is not prohibited from making any form of comment in relation to the value of a particular piece of evidence; (3) the judge might usefully have directed the jury that they could accept some parts of the interview and not others and is a standard direction which is regularly given to juries, however, it is not a compulsory direction which must always be given; (4) the trial judge directed the jury that, if they accepted the complainer as credible and reliable, they would not need to look very far to find corroboration, given the physical state of the complainer when she got into the taxi and later arrived at the police station and that was factually correct albeit various surrounding facts and circumstances, including the injuries and the distress, were also relevant; (5) it would have been prudent for the judge to have given the standard direction on distress as corroboration, namely, that for distress to be relevant, the jury had to accept it as genuine and attributable to the alleged rape recently perpetrated; (6) the evidential conflict in relation to the first incident between the evidence of the complainer, who said that she was physically attacked, and the appellant, who said that the intercourse was instigated by the complainer, meant there was no room for reasonable belief as the defence was simply consent and there was no evidence which might allow for some misunderstanding of the position; (7) this was not a case of repeated rapes over such a short period of time that they might be considered to be all part of one episode of repeated rape and there were substantial periods of time between each rape and each required to be proved by corroborated evidence and the absence of a correct direction on corroboration had to be regarded as a material error of law. However, the judge clearly directed the jury that they must be satisfied that there was corroborative evidence of at least one rape and the jury must have been satisfied of that. Any miscarriage of justice was limited to the “repeated” aspect of the rapes and the conviction was quashed to that extent; (8) the only evidence of “reasonable belief came from the complainer, when she said she had not actively resisted the appellant in relation to the subsequent episodes but due to trial judge’s misdirection on corroboration, the issue no longer arises; (9) the direction is contrary to what the defence were maintaining at the trial, however, when the charge is looked at as a whole, it would have been clear to the jury that the appellant was resisting any form of conviction for rape in respect of all three episodes and the judge did not suggest that the appellant had conceded that he had raped the complainer on the first occasion.