Full bench of High Court finds de recenti statements by rape victim capable of corroborating other direct evidence of rape

About this case:

• Citation:
  [2023] HCJAC 40
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

The reference arose from a case in which the respondent was charged with the assault and rape of a complainer while she was heavily intoxicated at an address in Inverness in March 2019. It was argued that the case of Smith v Lees, a decision of the full bench in 1997 that influenced the trial judge’s directions to the jury, ought to be overruled.

The appeal was heard by Lord Carloway, the Lord Justice General, and Lady Dorrian, the Lord Justice Clerk, with Lady Paton, Lord Pentland, Lord Matthews, Lord Boyd of Duncansby, and Lady Wise. The Lord Advocate, Dorothy Bain KC, appeared for the Crown and Dean of Faculty, Roddy Dunlop KC, led the team for the respondent.

Guide to credibility

At a trial diet in November 2022, evidence was given by the complainer in the form of a recorded police interview which had taken place about six months after the incident, as well as a later pre-recorded commission which included cross-examination. She and her boyfriend had been invited to the respondent’s flat, where she drank lager that she believed to have been spiked. At one point her boyfriend left to find his tobacco and shortly thereafter the respondent threw her onto a bed and raped her.

Evidence was also given by the complainer’s boyfriend, who said that when he returned to the flat 15 minutes after he left the respondent answered the door naked and very shortly afterwards the complainer came out of the flat in a state of distress shouting that she had been raped and saying the respondent had done it. This was also witnessed by a neighbour.

There was also evidence from the complainer’s sister of a phone call from a friend after the incident, in which she could hear her sister crying and screaming in the background. No evidence was given by the respondent, but his account at interview was that no drink was consumed and there was no physical interaction.

The trial judge determined that there was sufficient evidence for the case to go to the jury. On the de recenti statements made by the complainer to her boyfriend and others, both at the scene and on the phone, very soon after the rape was said to have happened, the judge directed the jury that what the complainer had been reported as saying could not corroborate her testimony about what had happened. It was available only to help them in assessing the quality of the complainer’s testimony. It was only a guide to credibility and reliability. They had to rely on other facts and circumstances to prove penetration.

Ought to be overruled

The jury found the case not proven on a majority verdict. The High Court considered that the basis for the jury’s reasonable doubt may have been prompted by the trial judge’s directions, notably those on the evidential effect of the complainer’s de recenti statements and the inability of distress to corroborate penetration.

It was submitted by the Crown that the earlier case of Smith v Lees (1997), which established the principle used by the trial judge in directing the jury on the complainer’s statements, had been wrongly decided and ought to be overruled. That approach was inconsistent with the court’s approach to other forms of circumstantial evidence capable of supporting a complainer’s account and at odds with other leading common law jurisdictions. Distress permitted an inference that intercourse was not consensual and thus was just as corroborative of penetration as it was lack of consent.

For the respondent it was submitted that allowing corroboration of penetration to be found in distress was unprincipled and unwarranted and went beyond what was appropriate. Any situation in which being the victim of a crime, whether assault, indecent exposure, robbery or theft, was distressing would mean that corroboration of whatever the complainer said could be found in the fact that they were distressed. This would remove something that has for centuries been seen as a vital safeguard.

Significant weight

In the court’s decision, delivered by Lord Carloway, it said of the relevant texts: “Walker & Walker’s classification of crucial, evidential and procedural facts has little basis in the Institutional Writers. Neither Hume nor Alison talk about crucial or critical facts; nor do they mention facta probanda, a phrase which, circuitously, means nothing more than the facts to be proved. In rape cases, Alison makes it clear that corroboration can come from physical injuries, the complainer’s disclosure and her previous good character.”

It continued: “[Alison] states specifically that there is no authority for the proposition that two witnesses are required to prove the fundamental facts, such as the corpus delicti (ie the crime, or actus reus). This is a statement which ought to carry significant weight.”

Addressing Smith v Lees, the court said: “The judges do not analyse the underlying basis for their effective starting point; that each separate element in a criminal offence requires to be individually corroborated. In a rape case, each judge considers that either three or four of these elements require corroborated evidence. This idea, at the time of Smith v Lees, was not supported by the Institutional Writers, upon whom the judges relied. It was not supported by the preponderance of authority.”

It went on to say: “It was accepted in Smith v Lees that being subject to a sexual assault was likely to cause distress. When that distress manifests itself to independent witnesses it is difficult to see why it should not be regarded as a separate source of evidence which confirms or supports the complainer’s account. It is impossible to see why it should not be so regarded.”

Relatively simple concept

In its conclusions, the court began: “The common thread running through the authorities and writings which have been disapproved in this Opinion is the tendency to categorise, sub-categorise, over-analyse, and generally complicate the issue of the use to which evidence may be put. The admissibility of evidence should be a relatively simple concept, rather than something which is over- technical and theoretical.”

Answering the questions of the reference in the affirmative, it ended: “The value of a de recenti statement depends on the context in which it occurs. Where it occurs in the context of observed distress, the statement has corroborative value in enhancing and strengthening the corroborative effect of the distress; and in any event, a de recenti statement alone is evidence which reflects favourably on the reliability and credibility of the complainer as showing consistency of approach from a moment close to the events in question.”