L.W. v. Her Majesty’s Advocate [2020] HCJAC 50

Note of appeal against conviction:- On 31 October 2019, following a trial at Glasgow High Court, the appellant was convicted of the rape of his step-daughter, RM, on various occasions between 1988 and 1992 when the complainer was aged 16-19 years and the appellant was aged 28-31 years. The appellant was also convicted of incest under section 2B of the Sexual Offences (Scotland) Act 1976. The appellant appealed against his conviction in relation to the rape charge. The issue in the appeal was whether the complainer’s evidence that she was raped by the appellant, who was the father of her child, was corroborated by the nature of their familial relationship itself and their domestic circumstances. It was submitted on behalf of the appellant that there was insufficient evidence for a charge of rape it being contended that whilst an act of sexual intercourse had been proved given the conception of the appellant’s child, there was no corroboration of lack of consent as, whilst evidence of intercourse amounted to incest, it did not corroborate lack of consent. It was further submitted that it was not enough for the evidence to be consistent with the complainer’s account and evidence in support of her account was required. On behalf of the Crown it was submitted that the evidence of the parental relationship was independent evidence capable of supporting the complainer’s evidence that she did not consent. It was submitted that the relationship and the domestic circumstances went beyond being merely consistent with the complainer’s evidence and supported her account. Here the court refused the appeal. The court considered that the relationship between the appellant and the complainer and them living in the same household as the complainer’s mother was sufficient to support or confirm the complainer’s evidence. The court considered that the fact a complainer was a daughter/step-daughter of an accused can be an important element of a circumstantial case as can a significant difference in age and able to demonstrate the inherent unlikelihood of consent. The court went on to state, however, that there requires to be more than simply an incestuous familial connection and age gap and, in examining the likelihood of the complainer consenting to such conduct, the court looked at the inherent aversion that most people feel towards such conduct. The court noted that the Crown case requires to be taken at its highest in determining whether the circumstance taken together are sufficient to corroborate a complainer’s account. In the present case the court considered that the complainer and the appellant had been in a close familial relationship since childhood akin to a parent and child relationship. In addition, there was a significant age gap between the appellant and the complainer, the appellant remained in a relationship with the complainer’s mother and they lived together in the same household. Taking all of those adminicles together the court considered that these circumstances were sufficient to yield an inference which supported or confirmed the complainer’s evidence that the sexual contact with the appellant took place without her consent.