Rapist loses appeal against conviction over alleged ‘misdirection’ on distress as corroboration

A man found guilty of rape who claimed that the trial judge misdirected the jury over the issue of the complainer’s distress as a source of corroboration of her lack of consent has had his appeal against conviction rejected.

 

The Appeal Court of the High Court of Justiciary refused the appeal after ruling that the directions given by the trial judge were actually “favourable” to the appellant.

 

The Lord Justice General, Lord Carloway, sitting with Lady Paton and Lord Drummond Young, heard that the appellant Ross Wilkinson was found guilty of raping a “close platonic friend” following a trial at the High Court in Dumbarton in August 2017.

 

 

The court heard that the appellant and the complainer “CS”, who were both aged 20 at the time, had gone to a nightclub in Glasgow with a group of friends on Saturday 2 April 2016.

 

At about 3am they boarded a taxi and although the complainer lived in Dumbarton, she was not dropped off there, but continued in the taxi to Balloch, where the appellant lived.  

 

She went with the appellant into an unoccupied bungalow in the grounds of his parents’ house, where the incident took place.

 

The complainer left in a taxi at about 5am and when she got a taxi home contacted a friend, “MB”, and told him generally what had happened. 

 

At about 9am she spoke to her sister “NS” and the appellant then telephoned her in NS’s presence and apologised for what he had done, having also sent her text messages in the same vein.   

 

The taxi driver who had picked the complainer up in the early hours of the morning said the complainer had been crying, while MB described her as quite distressed and crying, rather than talking, when she had phoned him at about 5am, and NS described the complainer as shaky, strange and not herself. 

 

 

A text message from the appellant to the complainer, at about 1pm on Sunday 3 April, included the phrase “my actions were horrendous a don’t know what was going thru my head”.  

 

On 8 April another text read “I am so sorry for all I have caused … my mind was elsewhere under the influence of drugs”.  

 

The appellant had, however, texted his male friends, apparently boasting of having had sexual intercourse.   

 

There was also forensic evidence disclosing the presence of the appellant’s semen on the complainer’s skirt, containing light blood staining.   

 

When charged, the appellant denied the offence, and in court he gave evidence in which he admitted sexual intercourse, but maintained that everything had happened with consent.  

 

The trial judge gave the jury standard directions on the general need for corroboration and went on to focus the issue as being whether there was a lack of consent by the complainer at the material time and an absence of reasonable belief by the appellant that the complainer was consenting.

 

The judge continued by stating that there were two possible sources of corroboration; the first being distress and the second being the apologies contained in the text messages, which might be regarded as admissions of having intercourse with the complainer without her consent.  

 

 

Having been found guilty, the appellant was sentenced to five years’ detention.

 

However, he appealed on the ground that judge erred in failing to direct the jury that distress can only be used to corroborate the mens rea of the accused where the jury is satisfied that the distress was being exhibited at the time of the offence, as only then can distress be used to inform a jury as to the mens rea of the accused at the time of the incident.  

 

It was argued that, as with all rape charges, the issue of reasonable belief arose, and the jury ought to have been directed that they had to be satisfied that, in order to find corroboration of a lack of reasonable belief, the complainer had to have been exhibiting distress at the time of the incident. 

 

Only then could distress, which was observed by another, provide corroboration to negate the appellant’s reasonable belief at the time. 

 

It was submitted that distress exhibited after the event was not capable of providing corroboration of a lack of belief at the time. 

 

 

Refusing the appeal, the court considered that even if there had been a misdirection, the text messages provided “clear corroboration”.

 

Delivering the opinion of the court, the Lord Justice General said: “As in Graham v HM Advocate 2017 SCCR 497, the issue for the jury was whether, as the complainer maintained, the appellant had had sexual intercourse with the complainer by force and thus without her consent. The complainer’s account was that she had been crying at the time and repeatedly telling the appellant to stop. The appellant’s account was that the intercourse had been entirely consensual and actively participated in by the complainer. 

 

“In such circumstances it was sufficient that the trial judge, whilst properly defining rape, directed the jury that the complainer’s account of being forcibly raped was adequately corroborated by either distress, observed by another person after the incident, or by an admission of the type here contained in the text messages.”  

 

Lord Carloway added: “Even in a case in which reasonable belief is properly before the jury, as was said in Drummond v HM Advocate 2015 SCCR 180, proof that the complainer was distressed shortly after the event could lead to the inference that that distress had been exhibited shortly beforehand (ie at the relevant time) and that this would have been clear to the appellant. It would thus have been evident that the complainer was not consenting to intercourse. 

 

“In either event, the directions of the trial judge in this case were, if anything, favourable to the appellant. Even if they had amounted to a misdirection, the court would have held that no miscarriage of justice had occurred. The jury clearly accepted the evidence of the complainer as truthful, rejected that of the appellant, and there was clear corroboration deriving from the texts alone.”