Walker v HM Advocate, Scottish High Court of Justiciary, Judgment, Law, casemine.com

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LORD JUSTICE CLERK LADY SMITH LORD BRACADALE OPINION OF THE COURT DELIVERED BY LORD CARLOWAY, THE LORD JUSTICE CLERK IN APPEAL AGAINST CONVICTION BY IAN WALKER APPELLANT; AGAINST HER MAJESTY&RSQUO;S ADVOCATE RESPONDENT: APPELLANT: J KEENAN, SOLICITOR ADVOCATE; CAPITAL DEFENCE LAWYERS RESPONDENT: EDWARDS AD; THE CROWN AGENT 26 NOVEMBER 2015 [1]&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP; ON 16 MARCH 2015, AT THE HIGH COURT IN GLASGOW, THE APPELLANT WAS CONVICTED OF, AMONGST OTHER THINGS, THE RAPE OF THE COMPLAINER. &NBSP;ON 13 APRIL 2015, HE WAS SENTENCED TO 4&NBSP;YEARS IMPRISONMENT. [2]&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP; THE COMPLAINER HAD DESCRIBED HOW, ON THE EVENING OF 28 NOVEMBER 2013, SHE HAD BEEN INVITED BY THE APPELLANT TO GO ON A CAR JOURNEY WITH HIM.&NBSP; DURING THE JOURNEY, HE HAD PULLED THE CAR OVER ON TWO SEPARATE OCCASIONS AND RAPED THE COMPLAINER AT SECLUDED LOCATIONS.&NBSP; THAT NIGHT SHE RECORDED THE EVENTS IN A DIARY, TO WHICH SHE WAS REFERRED IN HER EXAMINATION IN CHIEF. &NBSP;&NBSP;THE APPELLANT AND THE COMPLAINER WERE KNOWN TO EACH OTHER, BEING NEXT DOOR NEIGHBOURS.&NBSP; IT WAS NOT DISPUTED BY THE APPELLANT THAT THE SEXUAL ACTIVITY LIBELLED HAD TAKEN PLACE; THE ONLY ISSUE AT TRIAL WAS CONSENT. &NBSP; [3]&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP; IN SUPPORT OF THE COMPLAINER&RSQUO;S POSITION, HER FATHER TESTIFIED THAT HE HAD SEEN THE COMPLAINER WHEN SHE HAD RETURNED HOME.&NBSP; SHE HAD LOOKED &LDQUO;DIFFERENT&RDQUO;.&NBSP; IT WAS ACCEPTED, ALTHOUGH IT IS NOT CONTAINED IN THE TRIAL JUDGE&RSQUO;S REPORT, THAT THE FATHER HAD SAID THAT THE COMPLAINER HAD APPEARED DISTRAUGHT.&NBSP; IT LOOKED AS IF SHE HAD BEEN CRYING.&NBSP; WHEN ASKED WHAT WAS WRONG, SHE HAD REPLIED &LDQUO;I DON&RSQUO;T WANT TO TALK ABOUT IT&RDQUO;. &NBSP;SHE HAD THEN GONE TO HER ROOM. [4]&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP; THE FOLLOWING DAY THE COMPLAINER ATTENDED HER GENERAL MEDICAL PRACTITIONER.&NBSP; THE DOCTOR SPOKE TO HER BEING UPSET AND DISTRESSED WHILST REPORTING THAT SHE HAD BEEN RAPED.&NBSP; &NBSP;THE DOCTOR&RSQUO;S TESTIMONY IN RELATION TO HER PHYSICAL STATE WAS NOT CHALLENGED.&NBSP; THE COMPLAINER&RSQUO;S BOYFRIEND ALSO GAVE EVIDENCE THAT, ALSO ON THE FOLLOWING DAY, HE HAD HAD A CONVERSATION WITH THE COMPLAINER DURING WHICH SHE HAD APPEARED VERY DISTRESSED.&NBSP; THERE WAS A CHALLENGE TO THE VERACITY OF THIS CONVERSATION, WHICH HAD BEEN RECORDED; ALTHOUGH THE RECORDING HAD NOT BEEN PRODUCED FOR SOME CONSIDERABLE TIME AFTER THE ALLEGED INCIDENT. [5]&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP; THE CROWN RELIED SIGNIFICANTLY ON A SERIES OF TEXT MESSAGES SENT BY THE APPELLANT TO THE COMPLAINER ON THE DAY AFTER THE INCIDENT.&NBSP; IN THESE HE HAD SAID, FOR EXAMPLE, &LDQUO;SORRY ABOUT LAST NIGHT&RDQUO;.&NBSP; IN RESPONSE TO A QUESTION FROM THE COMPLAINER AS TO WHY HE HAD DONE IT, HE HAD TEXTED &LDQUO;LOOK, A SYS A WAS SORRY A DON&RSQUO;T KNOW WIT A WAS THINKING&RDQUO;; &LDQUO;YOU CAN EVEN STAB ME IF YOU WANT TO&RDQUO; AND &LDQUO;AM REALLY SORRY A JUST REALLY WANT TO SHOOT MASELF&RDQUO;. [6]&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP; THE APPELLANT&RSQUO;S POSITION AT TRIAL WAS THAT, NOT ONLY HAD THE COMPLAINER CONSENTED TO THE SEXUAL ACTIVITY, SHE HAD ALSO INITIATED IT. &NBSP;HIS EXPLANATION FOR THE TEXT MESSAGES WAS THAT, WHILST HE KNEW THAT THE COMPLAINER WAS MAKING AN ALLEGATION OF RAPE AGAINST HIM, HE WANTED TO MAKE HER &LDQUO;FEEL BETTER&RDQUO;. [7]&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP; THE TRIAL JUDGE GAVE THE JURY THE STANDARD DIRECTIONS ON THE NEED FOR CORROBORATION OF LACK OF CONSENT.&NBSP; WHEN HE CAME TO DEAL WITH THE EVIDENCE, HE STRESSED THAT THE CONTENT OF THE COMPLAINER&RSQUO;S DIARY AND ANYTHING THAT THE COMPLAINER HAD SAID TO ANYONE, INCLUDING IN TEXT MESSAGES AND THE RECORDED CALL TO HER BOYFRIEND, COULD NOT PROVIDE CORROBORATION OF HER ACCOUNT.&NBSP; HE CONTINUED, HOWEVER, TO SAY THAT THE DIARY COULD PROVIDE EVIDENCE OF HER STATE OF MIND WHEN SHE WROTE IT.&NBSP; IT COULD, HE SAID, PROVIDE EVIDENCE THAT SHE WAS DISTRESSED.&NBSP; DISTRESS COULD CONFIRM THAT A PERSON HAD SUFFERED A DISTRESSING EVENT AND THAT COULD PROVIDE CORROBORATION OF LACK OF CONSENT. [8]&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP; IT IS ACCEPTED THAT THESE DIRECTIONS ON THE USE WHICH COULD BE MADE OF THE DIARY AS PROOF OF DISTRESS, AND THUS CORROBORATION OF THE COMPLAINER&RSQUO;S ACCOUNT OF LACK OF CONSENT, AMOUNTED TO A MISDIRECTION.&NBSP; THE ISSUE IN THIS APPEAL THEREFORE BECOMES ONE OF WHETHER THAT MISDIRECTION WAS MATERIAL.&NBSP; [9]&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP;&NBSP; IT IS SIGNIFICANT THAT THE EVIDENCE THAT THE COMPLAINER WAS DISTRESSED AFTER THE EVENT, AND IN PARTICULAR WHEN SHE RETURNED HOME, WAS NOT DISPUTED.&NBSP; EQUALLY, IT WAS NOT DISPUTED THAT SHE WAS DISTRESSED WHEN SHE SAW HER DOCTOR.&NBSP; IN THESE CIRCUMSTANCES, LEAVING OUT OF ACCOUNT ENTIRELY THE EVIDENCE OF THE RECORDED PHONE CALL WITH HER BOYFRIEND, IT WAS ACCEPTED THAT THE COMPLAINER WAS IN A DISTRESSED STATE ON HER RETURN HOME.&NBSP; THE MISDIRECTION ON THE DIARY WAS NOT THEREFORE MATERIAL.&NBSP; IN ANY EVENT, THE TEXT MESSAGES WERE PARTICULARLY COMPELLING.&NBSP; AS THE TRIAL JUDGE PUT IT, THEY PROVIDED A POWERFUL AND GENERAL SOURCE OF CORROBORATION OF THE COMPLAINER&RSQUO;S ACCOUNT.&NBSP; [10]&NBSP;&NBSP;&NBSP;&NBSP;&NBSP; HAVING REGARD TO THESE MESSAGES, IN CONJUNCTION WITH THE ACCEPTED DISTRESS, IT CANNOT BE SAID THAT A MISCARRIAGE OF JUSTICE HAS OCCURRED.&NBSP; THE APPEAL MUST THEREFORE BE REFUSED. &NBSP;

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Walker v. HM Advocate

Smart Summary

Factual and Procedural Background

On 16 March 2015, at the High Court in The City, the Appellant was convicted of, among other charges, the rape of the Complainer. On 13 April 2015, the Appellant was sentenced to four years imprisonment. The Complainer described being invited by the Appellant to go on a car journey on the evening of 28 November 2013, during which the Appellant stopped the car twice at secluded locations and raped her. The Complainer recorded these events in a diary the same night, which was referenced during her examination in chief. The Appellant and Complainer were next door neighbours. The Appellant did not dispute that sexual activity occurred but contested that it was consensual.

Supporting the Complainer’s account, her father testified that upon her return home she appeared distraught and had been crying, though this was not included in the trial judge’s report. The Complainer declined to discuss what was wrong and went to her room. The following day, the Complainer saw her general medical practitioner, who observed her upset and distressed and was informed of the rape. The doctor’s testimony about her physical state was unchallenged. The Complainer’s boyfriend also testified that she appeared very distressed in a conversation the day after the incident, though the veracity of this conversation was challenged due to the late production of its recording.

The Crown relied heavily on text messages sent by the Appellant to the Complainer the day after the incident, including apologies and expressions of remorse. The Appellant’s trial position was that the Complainer had consented and initiated the sexual activity, and that his texts were intended to make her feel better despite knowing about the allegation of rape.

The trial judge instructed the jury on the need for corroboration of lack of consent, stating that the diary and statements, including text messages and the recorded call, could not corroborate the Complainer’s account but could evidence her distress. Distress was said to potentially corroborate that a distressing event occurred, thus supporting lack of consent. The directions regarding the diary were later accepted to be a misdirection.

Legal Issues Presented

Whether the misdirection by the trial judge concerning the use of the Complainer’s diary as evidence of distress and corroboration of lack of consent was material to the verdict.

Arguments of the Parties

Appellant's Arguments

The Appellant contended that the sexual activity was consensual and initiated by the Complainer.
The Appellant explained that his apologetic text messages were meant to make the Complainer feel better despite knowing about the rape allegation.

Respondent's Arguments

The Crown relied on the Complainer’s distress and the Appellant’s text messages as compelling corroboration of the Complainer’s account of lack of consent.
The Crown accepted that the trial judge’s directions on the diary were a misdirection but argued this was not material given the other evidence.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged that the trial judge’s directions regarding the diary as evidence of distress and corroboration were a misdirection. However, the court found this misdirection immaterial because the evidence that the Complainer was distressed upon returning home and when attending her doctor was undisputed. The court also noted that the text messages sent by the Appellant the day after the incident were particularly compelling and provided a powerful source of corroboration supporting the Complainer’s account of non-consensual sexual activity. Considering these factors together, the court concluded that no miscarriage of justice occurred despite the misdirection.

Holding and Implications

The appeal was REFUSED. The court’s decision directly upheld the conviction and sentence of the Appellant. No new legal precedent was established, and the ruling confirmed that the misdirection concerning the diary did not undermine the overall safety of the verdict given the other compelling evidence.