R.K.S. v. Her Majesty’s Advocate [2020] HCJAC 19

Note of appeal against conviction and sentence:- The appellant went to trial at Glasgow High Court on an indictment containing two charges:- (1) on various occasions between June 2013 and February 2017 at various addresses in Glasgow he did assault his partner MKS; and (2) on 21 February 2017 at their home in Glasgow he did rape MKS contrary to section 1 of the Sexual Offences (Scotland ) Act 2009. There was appended to the charges a docket containing two paragraphs including (1) that on various occasions between 20 March 2011 and 19 March 2013, at addresses in England, the appellant engaged in sexual activity, including sexual intercourse with MKS born 20 March 1997 when she was aged 14/15 years. At the close of the Crown case the Advocate depute withdrew charge 1 and the appellant was subsequently convicted of charge 2. The appellant appealed against his conviction on two grounds:- (1) that the trial judge erred in directing the jury that they could take into account the alleged start of the sexual relationship between the two, as specified in the docket, as one piece of the overall picture which they had to consider in relation to charge 2 and that the jury ought to have been directed to disregard the evidence relating to the docket in determining their verdict in relation to charge 2; and (2) related to criticisms of the directions which the trial judge gave on the definition of the crime of rape and which elements required to be proved by corroborated evidence, in particular, it was contended that the trial judge was wrong to direct the jury that the absence of reasonable belief did not require corroboration. It was submitted on behalf of the appellant, under reference to section 288BA of the Criminal Procedure (Scotland) Act 1995, that by the time the jury were being directed regarding the rape charge it could not be said that sexual intercourse when the complainer was 14/15 years old was specifiable by reference to the rape, nor could it be said to be part of the same events as the rape or a series of events of which that offence was part. It was submitted that whilst the evidence may have been relevant during the trial to explain, for example, how the appellant and the complainer came to know each other by the stage of the trial when the judge was charging the jury the evidence was no longer relevant to the remaining charge. In relation to the second ground of appeal it was submitted that the complainer gave evidence of a forcible rape and the appellant’s position was one of consent and the issue of reasonable belief was a live issue in every case where a contravention of section 1 of the 2009 Act was libelled and the trial judge’s direction to the effect that absence of reasonable belief did not require corroboration was erroneous. It was submitted that all three essential components of the offence required to be proved by corroborated evidence including a lack of reasonable belief. It was further submitted that the cases of Graham v HMA 2017 SCCR 497 and Maqsood v HMA 2019 JC 45 were both wrongly decided quoad that the absence of reasonable belief did not require to be established by corroborated evidence and that no direction on reasonable belief was required unless it was a live issue in the case and that the present case ought to be remitted to a larger court to reconsider the issue. On behalf of the Crown it was submitted that no objection had been taken to the competence of including the docket or to leading the evidence referred to in it and it was submitted the evidence was relevant. In relation to the second ground of appeal it was submitted on behalf of the Crown that the complainer spoke to a rape without her consent and by the use of force and evidence of distress and injury corroborated her account. In the circumstances the directions given were in accordance with the law. Here the court refused the appeal. In relation to the issue of dockets the court noted that in terms of section 288BA a docket may be included if it specifies an act or omission that is connected with a sexual offence charged in the indictment. In determining that, the act or omission requires to be specifiable by way of reference to a sexual offence. In addition, the act or omission must relate to the same event as the offence charged or to a series of events of which that offence is also part. In the present case the specifiable act is a sexual offence. In relation to the link between the specifiable sexual offence identified in the docket and the sexual offence charged in the indictment the court noted that no objection to the admissibility of the evidence was lodged or to the docket being read to the jury. The court observed that whilst charge 2 was the only charged before the jury that was the only sexual offence which had ever featured on the indictment and the docket could only ever have specified an act which was connected with the events of charge 2. In addition, it would not be appropriate for the trial judge to direct a jury to disregard evidence they had heard to which no objection had been taken. In relation to the second ground of appeal the court noted that the offence of which the appellant was convicted was a forcible and violent rape perpetrated in the face of requests to stop and there was no scope for a separate and hypothetical situation of whether, despite the fact that the complainer did not consent, for some reason, of which there was no evidence, the appellant may have thought that she was consenting. The court reiterated that it will only be in cases where reasonable belief is a live issue that directions on the absence of reasonable belief and the need to provide corroborated evidence of that absence will be required. In response to the submission on behalf of the appellant that in all cases brought under section 1 of the 2009 Act will such directions be necessary the court refuted that and gave the example of a case where an accused denied that intercourse took place and led a defence of alibi and that such directions on reasonable belief would never be necessary in those circumstances.