Charles Graham v. Her Majesty’s Advocate [2017] HCJAC 71

Note of appeal against conviction:- On 23 September 2016, at Paisley High Court, the appellant was found guilty after trial of a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. On 1 November 2016 the appellant was sentenced to 5 years imprisonment. The appellant appealed against his conviction on the basis of alleged misdirections by the trial judge when the jury were directed that they were entitled to use evidence of the complainer’s distress the morning after the incident to corroborate her lack of consent and the absence of a reasonable belief by the appellant that she was consenting. The circumstances were that the appellant and the complainer were in a relationship. On the night in question the complainer woke up to find the appellant on top of her with his penis in her anus whilst she had been sleeping on her front. It was the complainer’s position that she repeatedly told the appellant to stop saying that it was sore, however, the appellant continued to ejaculation. The complainer noticed that she was bleeding and she was in pain. In the morning she got up and went to work and phoned a friend, AG, (the appellant’s cousin) who attended a short time later. AG noticed that the complainer was in a state and could not stop crying. The complainer phoned a doctor and she was hospitalised for 4 days. A number of months later the appellant and the complainer had an argument in the presence of AG, during which the appellant was accused of raping the complainer which the appellant denied and he said that the complainer “loved it”. By the time of the trial AG had died and her police statements were introduced to the proceedings under section 259 of the Criminal Procedure (Scotland) Act 1995. The first statement noted that AG witnessed the distress of the complainer shortly after the incident and was told by the complainer that the appellant had forced himself upon her and that AG encouraged the complainer to report the matter to the police but she chose not to. In a further statement AG stated she had been present on 23 July 2014, when the complainer and the appellant had been arguing and the complainer had been telling the appellant that he had caused her to go to hospital and that AG heard the appellant say “that he had forced her to have sex in the backend, but she had loved it ...”. At the trial the appellant gave evidence that he and the complainer often had vaginal and anal sexual intercourse and that it was always with the consent of the complainer. In relation to the exchange on 23 July 2014, it was the appellant’s position that the complainer had said to him “You rammed me” and he had replied “No darling, you loved it” and he denied that he had used the word “forced” in any way. Here it was submitted on behalf of the appellant that due to the appellant giving evidence in which he stated he thought the complainer had consented there was an evidential basis upon which the jury could draw an inference that the appellant had reasonable grounds for believing that the complainer had consented and the Crown had to prove the absence of belief. In directing the jury that the distress spoken to in the statements of AG could corroborate the evidence of the complainer that it would have been clear to the appellant that the complainer was not consenting that was a misdirection. It was submitted that the complainer was in bed asleep and no distress was exhibited until the following morning to AG and the distress was therefor too far removed from the events to corroborate an absence of reasonable belief. It was contended that the trial judge erred in failing to direct the jury that the only source of corroboration was the alleged admission on 23 July2014 that the appellant had forced the complainer to have sex. It was further contended on behalf of the appellant that had the jury been so directed they may have returned a different verdict and, as such, a miscarriage of justice had occurred. On behalf of the Crown it was submitted that this was a case of forced rape as the complainer had repeatedly told the appellant to stop and that it was painful. The complainer described the appellant placing his hands on her shoulders and pushing her down as she tried to get up and if the complainer was believed in relation to the presence of force the jury were entitled to use the distress to draw the inference that :- (1) she was not consenting; and (2) the appellant was aware of the fact that she was not consenting. It was further submitted that reasonable belief had not been in issue at trial. It was further submitted that there was no fixed time period after which distress could not be used for corroboration and in the present case the distress exhibited could corroborate both consent and a lack of reasonable belief in consent. Here the court refused the appeal. The court described this case as “yet another appeal which arises from the phraseology used in section 1 of the 2009 Act which redefined rape as requiring a lack of reasonable belief that the complainer consented.” The court considered the development of the law of rape and the ‘new’ statutory definition of rape under section 1 of the 2009 Act which requires not only an absence of consent but also an absence of reasonable belief that the complainer consented. The court reiterated that, whilst an absence of reasonable belief is an essential element of the crime, it does not add a new requirement to be proved by corroborated evidence but, rather, changes that part of the mental element from an absence of an honest belief to an absence of a reasonable one. The court makes clear that in a case where force is alleged and proved there is no need for a specific direction on corroborating an accused’s lack of belief unless it is a live issue at trial, not simply because an accused states that she consented. The court observed that in the majority of cases such a middle ground would not arise. In the present case the complainer stated that she repeatedly told the appellant to stop and that he was forcing her down and he continued regardless against her will. On the other hand the appellant stated that that was not what happened and the intercourse was consensual and no different from the previous consensual intercourse they had had together. The court makes clear that on the evidence there was no basis for a jury to hold that whilst the complainer had not consented the appellant reasonably believed that she did, in other words the appellant either had forceful intercourse against her will or she consented to it. So in a case such as this the court considered that it is sufficient for a trial judge, in charging a jury, to direct that in defining rape in terms of the statute, so including a reference to an absence of belief, direct the jury that the complainer’s account of being forcibly raped may be corroborated by, either distress observed by another person after the incident or by an admission made by the appellant and spoken to by another witness, as in the present case. The court noted that whilst the trial judge’s directions were erroneous they favoured the appellant. It was noted that the interval in time did not mean that the distress exhibited some time later could not afford corroboration. At the conclusion of the opinion, the court provided an example of what would have been adequate directions to the jury in the present case.