Man guilty of sexual assault loses appeal over corroboration of ‘lack of consent’

The High Court of Justiciary Appeal Court refused the appeal by Craig Wilson after ruling that the evidence of distress which the complainer displayed to a friend about 30 hours after the incident was said to have occurred could provide corroboration of her lack of consent.

The Lord Justice General, Lord Carloway, sitting with Lord Bracadale and Lord Malcolm, heard that the appellant was sentenced to 30 months’ imprisonment in March 2016 after being convicted of sexually assaulting a partner’s friend while she was “under the influence of alcohol and asleep and incapable of giving consent” following a Friday night out in April 2014 when she stayed at the couple’s flat.

The trial at Kilmarnock Sheriff Court heard evidence that the complainer, then aged 20, had spoken to her friend “JM” in the Saturday morning before she left the flat but had not mentioned the incident to her.

She sent a text to her boyfriend to come and pick her up but did not mention the incident to him because she thought that he may have attacked the appellant.

By 12 noon, the complainer had returned home and went to bed without speaking to her mother – who described her as “very inward” although normally very lively – as she was “shocked and scared” and had not known what to do at that point.

The first person in whom the complainer confided was her best friend “LM” on Sunday afternoon after the complainer had texted her asking to meet in a car park.

LM gave evidence without objection that the complainer was upset and that she had become hysterical, breaking down and crying as she told her what had happened.

The appellant, who was 41 at the time, was interviewed by the police and admitted consensual sexual contact with the complainer, but maintained that she had been a “willing participant”.

Following his conviction the appellant lodged three grounds of appeal.

The first was phrased as a “misdirection” by the sheriff on the evidence of distress, but it came to be a submission that the evidence of distress should not have been regarded as providing corroboration – meaning there was insufficient evidence of lack of consent.

It was argued that the complainer had not been distressed or shocked when in the company of JM on the morning of the incident and had not displayed any distress to her boyfriend, nor were there any signs of distress or upset when she had arrived back at her mother’s house.

The second ground of appeal was that, if the jury had been entitled to rely upon the distress for the purposes of corroborating lack of consent, then they should have been directed to treat the evidence of distress with “caution”.

The third ground was that, despite the absence of any objection, the evidence by LM of what the complainer had said to her was inadmissible as “hearsay”, as the statement had been made more than 30 hours after the event and contrary to the sheriff’s direction, it could not be used to support her general credibility.

Refusing the appeal, the judges observed that the question was whether the distress described by LM could support or confirm the complainer’s account of lack of consent during an incident which had occurred more than 24 hours previously.

Delivering the opinion of the court, the Lord Justice General said: “Of course the jury had to be satisfied that the distress was caused by the event, and not by some extraneous element, but the sheriff gave clear directions on that matter. The interval between the alleged offence and the point at which distress is observed is a factor which a jury will wish to consider, but the important point is whether the jury are satisfied that the distress was caused by the offence. The occurrence of intervening occasions on which a complainer might have exhibited signs of distress, but did not, may be of some significance, but there is no fixed interval after which distress cannot constitute corroboration.

“The complainer explained why she had not told JM, or her boyfriend, or her mother what had occurred, or exhibited any signs of distress to them. It was a matter for the jury to determine whether to accept that explanation. The evidence from her mother was that she had been behaving in an unusual manner when she returned home. Her mother’s reference to ‘inward’ behaviour and sleeping excessively could well have been indicative of a distressed state, although the sheriff did not direct the jury to that effect. Be that as it may, the evidence of distress as observed by LM could be taken as confirming or supporting the account of lack of consent by the complainer. In these circumstances, the sheriff did not err in directing the jury that they could derive corroboration from the complainer’s distress, as spoken to by LM.”

On the second ground, the appeal judges held that the sheriff’s directions on the way in which the jury should have approached the evidence of distress were “adequate”.

“He told them specifically that they had to look at this evidence ‘carefully’ and decide what was responsible for it. That was sufficient by way of a cautionary remark to alert the jury to the potential difficulties with this type of testimony,” Lord Carloway added.

On the third ground, the issue was whether the jury could regard the limited statement of the complainer about her feeling pain as the first reasonable opportunity to speak to a natural confidant.

The Lord Justice General said: “Once evidence of what was said was adduced, as it was without objection, it became advisable, if not a requirement, for the sheriff to direct the jury, as he did, that this evidence could not provide corroboration but could be used in the assessment of the complainer’s credibility and reliability. That is what the sheriff did; drawing the jury’s attention to the lapse of time and lack of detail, as matters for their legitimate consideration.

“In any event, even if a strict approach were to be adopted in relation to the use of the prior consistent statements of witnesses, whose testimony is challenged…it is difficult to argue that a miscarriage of justice could possibly have arisen on this ground.”