Rapist who claimed ‘reasonable belief’ of consent loses appeal over judge’s ‘misdirection’ on corroboration

The appellant argued that the trial judge “misdirected” the jury by advising them that they could use evidence of the complainer’s distress to corroborate both her lack of consent and the appellant’s absence of a reasonable belief of consent, but the Appeal Court of the High Court of Justiciary rejected the appeal.

The Lord Justice General, Lord Carloway , sitting with Lord Drummond Young and Lord Turnbull, heard that heard that the appellant Charles Graham was sentenced to five years’ imprisonment after being found guilty of anal rape, contrary to section 1 of the Sexual Offences (Scotland) Act 2009.

Complainer’s distress

The point raised in the appeal was whether the judge misdirected the jury by advising them that they were entitled to use evidence of the complainer’s distress on the morning after the incident to corroborate, not only her lack of consent, but also the absence of a reasonable belief by the appellant that she was consenting.

Lord Carloway said this was yet another case arising from the phraseology used in section 1 of the 2009 Act, which “has caused, and continues to cause, significant problems for judges both in terms of assessing sufficiency and directing juries”.

The complainer’s evidence was that she was in bed and sleeping the incident had happened; it had occurred in the middle of the night.

When she woke up the next morning she made the appellant a cup of tea before he went to work.

She then made a telephone call to her friend, AG, the appellant’s cousin, at around 8am and when AG visited her she was crying.

She was in pain and phoned a doctor, who attended, and the complainer then went to hospital, where she remained for four days.

Requirement for corroboration

The trial judge gave the jury the standard general directions on the requirement for corroboration, before applying the principles to the specific charge.

Evidence of distress, referred to in the police statements of the complainer’s friend, AG, who was deceased by the time of the trial, was a piece of “circumstantial evidence” which the jury could accept or reject.

If they did accept it, it could corroborate the complainer’s evidence about her state of mind at the time of, and soon after, the incident, and it could corroborate her evidence that she had not consented to what had happened.

The trial judge told the jury had to be satisfied that there was corroborated evidence of the three essential elements of the charge: first, that the appellant had penetrated the complainer’s anus with his penis; secondly, that the complainer did not consent to that; and, thirdly, that the appellant did not reasonably believe that the complainer had consented to what had taken place.

The judge went on to summarise where the jury could find corroboration, if they accepted the complainer’s evidence as credible and reliable, for each of the essential elements of the charge.

Misdirection

However, the appellant had given evidence that the complainer had consented.

Accordingly, he submitted, there was a “proper evidential basis” upon which the jury could draw an inference that the appellant had reasonable grounds for believing she had consented, and the Crown had to prove the absence of belief.

The trial judge had identified that the principal source of evidence of the lack of reasonable belief was the complainer and had directed the jury that the distress spoken to in the statements of AG could corroborate the evidence of the complainer that it would have been clear to the appellant that she was not consenting.

It was argued that the distress was “too far removed” from the events libelled – particularly when the complainer had carried out normal daily tasks in the interim – to corroborate a lack of reasonable belief.

The trial judge had erred in not directing the jury that the only possible corroboration was a purported admission that the appellant had forced the complainer to have sex, as it was not known whether the jury had accepted the admission as corroboration or had relied solely on distress.

It was submitted that had the jury been directed that they could only rely on the admission as corroboration, they “may have returned a different verdict”.

No need for direction on corroboration of lack of belief

Refusing the appeal, the judges observed that while the absence of reasonable belief was an “essential element” of the crime, it did not necessarily require “separate formal proof”, as it was an “inference drawn from facts themselves proved by corroborated evidence”.

The purpose of section 1 was “not to add a new requirement which would need to be proved by corroborated testimony”, but “simply to change that part of the mental element from an absence of an honest belief to an absence of a reasonable one”.

Delivering the opinion of the court, the Lord Justice General said: “In a case in which force is alleged and proved, there is no need for a distinct direction on corroborating the accused’s lack of belief unless that is a live issue at the trial. It does not become live simply because the complainer maintains that she was forced to have intercourse and the accused says that she consented.

“In the vast majority of cases, and this is one of them, this ‘middle ground’ does not arise. The complainer said that she was telling the appellant to stop but he forced her down and persisted in having anal intercourse against her will.

“The appellant claimed that this is not what happened. Rather, it had been a normal episode of consensual intercourse of a type which had occurred many times in the past.

“There is no room, in that state of the evidence, for holding that, although the complainer had not consented, the appellant reasonably believed that she had. The appellant either had forceful intercourse against the complainer’s will or she consented to intercourse of the type libelled.

“In such circumstances it is sufficient that a trial judge, whilst properly defining rape in terms of the statute and thus including a reference to an absence of belief, directs the jury that the complainer’s account of being forcibly raped is adequately corroborated by, in this case, either distress observed by another person after the incident or an admission made by the appellant and spoken to by another witness.

“It follows that, although the trial judge’s directions were erroneous, they favoured the appellant. The appeal must fail on that basis. In that regard the fact that some hours had passed since the incident and the complainer had made the appellant a cup of tea did not stop the distress from being capable of providing corroboration…”

The judges also observed that the directions given by the trial judge largely followed the guidance in the Jury Manual, which they described as “over complicated”, before providing an adequate alternative example.