Craig Wilson v. Her Majesty’s Advocate [2017] HCJAC 3

Note of appeal against conviction:- On 9 March 2016, at Kilmarnock Sheriff Court, the appellant was convicted after trial on indictment of a charge of sexual assault contrary to sections 2 and 3 of the Sexual Offences (Scotland) Act 2009. On 30 March 2016 the appellant was sentenced to 30 months imprisonment. The appellant appealed against his conviction:- (1) that the sheriff misdirected the jury in relation to evidence of distress which had been exhibited by the complainer to a friend around 30 hours after the incident and could not amount to corroboration of lack of consent; (2) however, if the jury were entitled to rely upon the distress for the purposes of corroborating lack of consent there should have been a direction to treat the evidence of distress with caution; and (3) the evidence by LM, of what the complainer had said to her, was inadmissible as hearsay, albeit it had been led without objection. On behalf of the Crown it was submitted that the issue for the jury was whether the explanation given by the complainer about failing to report the matter earlier was reasonable in the circumstances. It was further submitted that distress was only one element of corroboration and there were other circumstances which the Crown could rely upon, for example, there had been no previous sexual relationship between them, they were both involved in long terms relationships and there was a significant age gap between them. In relation to the statement by the complainer to LM it was submitted that, firstly, it had not been objected to and, secondly, it was a de recenti statement. Here the court refused the appeal. The court reiterated that a complainer’s account of lack of consent may be corroborated by the evidence of another witness who speaks to the distressed condition of the complainer after the alleged assault. The court considered that, despite the time interval, the distress spoken to by LM could corroborate the complainer’s lack of consent. The court stated that there is no fixed interval after which distress cannot constitute corroboration and the critical issue was whether the jury was satisfied that the distress was caused by the event and not by some extraneous element. The court considered that the sheriff’s directions were clear that the jury had to be satisfied that the distress was caused by the offence. In relation to the second ground of appeal the court noted that the sheriff had directed the jury that they should look at the evidence “carefully” which was sufficiently cautionary in the circumstances. In relation to the third ground of appeal the court stated that whether a statement is de recenti and admissible will depend upon the circumstances of the case and in sexual cases there is a considerable latitude allowed. In the present case it was led without objection and the sheriff directed the jury that it could not provide corroboration but could be used in the assessment of the complainer’s credibility and reliability.