Rapist convicted after spiking girls’ drinks loses appeal over alleged ‘misdirection’ on corroboration

A man found guilty of rape and sexual assault after spiking his victims’ drinks has had an appeal against his conviction rejected.

 

William Fenton claimed that he suffered a “miscarriage of justice” because the trial judge “misdirected” the jury on the issue of corroboration, but the High Court of Justiciary Appeal Court ruled that the judge’s directions were “correct”.

 

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Brodie, heard that the following a trial at the High Court in Glasgow in 2013 the appellant was convicted of four charges relating to four young girls.

 

 

The first, charge (2), was that he administered a “stupefying substance” to the complainer “A” before sexually assaulting her, contrary to sections 3 and 11 of the Sexual Offences (Scotland) Act 2009.

 

The second, charge (3), was in similar terms, to the effect that he placed a substance in the drink of the complainer “B” for the purpose of “stupefying or overpowering” her and sexually assaulting her, again contrary to sections 3 and 11 of the 2009 Act.

 

He was also convicted of rape, charge (4), after inducing the complainer “C” to drink a substance he had placed in her drink, which “rendered her unconscious”, before raping her, contrary to sections 1 and 11 of the 2009 Act.

 

The final charge, charge (5), was that he spiked the drink of the complainer “D” and sexually assaulted her, contrary to sections 3 and 11 of the 2009 Act.

 

The accused’s defence was that he had not administered any stupefying substance to any of the complainers and that any sexual activity with them had taken place with their “consent”. 

 

The defence made a submission of “no case to answer” on the whole libel, but the trial judge refused it in respect of all of the charges on which the appellant was convicted.

 

 

The appellant appealed on the grounds that the jury were misdirected as to their right to make deletions from any of the charges and (2) the trial judge misdirected the jury in relation to corroboration and the application of the Moorov principle, as set out in Moorov v HM Advocate 1930 JC 68.

 

The solicitor advocate for the appellant submitted that it was not a necessary element of an offence under section 11 that there should be any resulting sexual contact, and therefore it would have been open to the jury to convict only of a contravention of section 11, or simply of a sexual assault, in relation to each complainer. 

 

It was argued that the trial judge failed in his duty to set out the options available to the jury in respect of an “obvious alternative verdict reasonably available on the evidence”, and that the jury should have been directed that they required to be satisfied on all elements of a charge and that they could delete any element of an offence that had not been proven to their satisfaction. 

 

It followed that there had been a misdirection as to corroboration in respect of charge (4).

 

The solicitor advocate for the appellant also submitted that the trial judge misdirected the jury on the issue of corroboration of the complainer’s evidence that she did not consent. 

 

The principle of mutual corroboration applied as between crimes rather than the elements of them. 

 

The issue of mutual corroboration between charges might have been relevant to this issue, but charge (4) was specifically excluded from the directions given on the Moorov principle. 

 

There was no requirement to distinguish between penetrative and non-penetrative offences when applying the principle of mutual corroboration. Accordingly, there was a misdirection, it was argued.

 

 

Refusing the appeal, the Lord Justice General ruled that the trial judge’s directions were “correct”.

 

In a written opinion with which the other judges agreed, Lord Carloway said: “The trial judge was directing the jury in the context of the defence presentation, which was based on a denial that the appellant had spiked any drinks given to any of the complainers and had not sexually assaulted them in any way. It was unreasonable to expect the trial judge to explain every theoretical combination of the various charges. 

 

“As he correctly pointed out, the charges stood or fell together. If the administration of a stupefying drug was removed, the complainers’ lack of consent was also removed. There would therefore have been no basis on which the jury could convict.”

 

The Lord Justice General also described the submission that the Moorov principle cannot be applied in respect of individual elements of a charge as “fallacious”.

 

He continued: “The corroboration that the Moorov principle could supply in this case was corroboration of the actus reus of administering a stupefying drug and thereafter committing a sexual assault on the complainer.

 

“In this case the similarities in the charges were particularly strong. The complainers were young girls. They were strangers to the appellant. The offences took place in the appellant’s house. 

 

“All of the complainers were given an alcoholic drink by the appellant after which he engaged in sexual activity with them. These separate acts were closely linked in time, place and circumstances.”

 

“Even if there had been a technical misdirection in this case,” Lord Carloway added, “I would have concluded that there was no miscarriage of justice, such being the strength of the Crown case.”