Ian Walker v. Her Majesty’s Advocate [2015] HCJAC 122

Note of appeal against conviction:- On 16 March 2015, at Glasgow High Court, the appellant was convicted after trial on indictment of a charge of rape. On 13 April 2015 he was sentenced to 4 years imprisonment. The appellant appealed against his conviction. The circumstances were that the complainer gave evidence that the appellant had raped her. It was not disputed by the appellant that sexual intercourse had taken place, the only issue at trial was consent. The Crown relied on a number of text messages sent from the appellant to the complainer the day after the alleged rape. These included:- “sorry about last night” and in response to a question from the complainer as to why he had done it he had texted “look, a sys a was sorry a don’t know wit a was thinking” and “you can even stab me if you want to” and “am really sorry a just really want to shoot maself”. At the trial the appellant’s position was that the complainer had initiated the sexual activity and that, in relation to the content of the text messages, it was his position that he knew that the complainer was making an allegation of rape against him and he wanted to make her feel better. In his directions to the jury the trial judge gave the standard directions on the need for corroboration of lack of consent. In relation to the content of her diary and what she said in the text messages the judge directed that the content of these could not provide corroboration of her account, however, the diary could provide evidence of her state of mind when she wrote it so could provide evidence that she was distressed which could confirm that a person had experienced an event which was distressing which could provide corroboration of lack of consent. The court considered here that the directions given in relation to the use which could be made of the diary as proof of distress, and corroboration of the complainer’s account of lack of consent amounted to a misdirection. The court, however, considered that the misdirection was not material and did not result in a miscarriage of justice. The court pointed to the evidence of the complainer being distressed after the incident, in particular when she returned home when her father thought she looked distraught as if she had been crying and did not want to talk about whatever had made her upset. The court considered that there was little doubt that the complainer was distressed. In addition, the court considered that the text messages and their content were compelling and corroborated the complainer’s account.