Walker v HM Advocate

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’S ADVOCATE RESPONDENT: APPELLANT: J KEENAN, SOLICITOR ADVOCATE; CAPITAL DEFENCE LAWYERS RESPONDENT: EDWARDS AD; THE CROWN AGENT 26 NOVEMBER 2015 [1]        ON 16 MARCH 2015, AT THE HIGH COURT IN GLASGOW, THE APPELLANT WAS CONVICTED OF, AMONGST OTHER THINGS, THE RAPE OF THE COMPLAINER.  ON 13 APRIL 2015, HE WAS SENTENCED TO 4 YEARS IMPRISONMENT. [2]        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.  DURING THE JOURNEY, HE HAD PULLED THE CAR OVER ON TWO SEPARATE OCCASIONS AND RAPED THE COMPLAINER AT SECLUDED LOCATIONS.  THAT NIGHT SHE RECORDED THE EVENTS IN A DIARY, TO WHICH SHE WAS REFERRED IN HER EXAMINATION IN CHIEF.   THE APPELLANT AND THE COMPLAINER WERE KNOWN TO EACH OTHER, BEING NEXT DOOR NEIGHBOURS.  IT WAS NOT DISPUTED BY THE APPELLANT THAT THE SEXUAL ACTIVITY LIBELLED HAD TAKEN PLACE; THE ONLY ISSUE AT TRIAL WAS CONSENT.   [3]        IN SUPPORT OF THE COMPLAINER’S POSITION, HER FATHER TESTIFIED THAT HE HAD SEEN THE COMPLAINER WHEN SHE HAD RETURNED HOME.  SHE HAD LOOKED “DIFFERENT”.  IT WAS ACCEPTED, ALTHOUGH IT IS NOT CONTAINED IN THE TRIAL JUDGE’S REPORT, THAT THE FATHER HAD SAID THAT THE COMPLAINER HAD APPEARED DISTRAUGHT.  IT LOOKED AS IF SHE HAD BEEN CRYING.  WHEN ASKED WHAT WAS WRONG, SHE HAD REPLIED “I DON’T WANT TO TALK ABOUT IT”.  SHE HAD THEN GONE TO HER ROOM. [4]        THE FOLLOWING DAY THE COMPLAINER ATTENDED HER GENERAL MEDICAL PRACTITIONER.  THE DOCTOR SPOKE TO HER BEING UPSET AND DISTRESSED WHILST REPORTING THAT SHE HAD BEEN RAPED.   THE DOCTOR’S TESTIMONY IN RELATION TO HER PHYSICAL STATE WAS NOT CHALLENGED.  THE COMPLAINER’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.  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]        THE CROWN RELIED SIGNIFICANTLY ON A SERIES OF TEXT MESSAGES SENT BY THE APPELLANT TO THE COMPLAINER ON THE DAY AFTER THE INCIDENT.  IN THESE HE HAD SAID, FOR EXAMPLE, “SORRY ABOUT LAST NIGHT”.  IN RESPONSE TO A QUESTION FROM THE COMPLAINER AS TO WHY HE HAD DONE IT, HE HAD TEXTED “LOOK, A SYS A WAS SORRY A DON’T KNOW WIT A WAS THINKING”; “YOU CAN EVEN STAB ME IF YOU WANT TO” AND “AM REALLY SORRY A JUST REALLY WANT TO SHOOT MASELF”. [6]        THE APPELLANT’S POSITION AT TRIAL WAS THAT, NOT ONLY HAD THE COMPLAINER CONSENTED TO THE SEXUAL ACTIVITY, SHE HAD ALSO INITIATED IT.  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 “FEEL BETTER”. [7]        THE TRIAL JUDGE GAVE THE JURY THE STANDARD DIRECTIONS ON THE NEED FOR CORROBORATION OF LACK OF CONSENT.  WHEN HE CAME TO DEAL WITH THE EVIDENCE, HE STRESSED THAT THE CONTENT OF THE COMPLAINER’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.  HE CONTINUED, HOWEVER, TO SAY THAT THE DIARY COULD PROVIDE EVIDENCE OF HER STATE OF MIND WHEN SHE WROTE IT.  IT COULD, HE SAID, PROVIDE EVIDENCE THAT SHE WAS DISTRESSED.  DISTRESS COULD CONFIRM THAT A PERSON HAD SUFFERED A DISTRESSING EVENT AND THAT COULD PROVIDE CORROBORATION OF LACK OF CONSENT. [8]        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’S ACCOUNT OF LACK OF CONSENT, AMOUNTED TO A MISDIRECTION.  THE ISSUE IN THIS APPEAL THEREFORE BECOMES ONE OF WHETHER THAT MISDIRECTION WAS MATERIAL.  [9]        IT IS SIGNIFICANT THAT THE EVIDENCE THAT THE COMPLAINER WAS DISTRESSED AFTER THE EVENT, AND IN PARTICULAR WHEN SHE RETURNED HOME, WAS NOT DISPUTED.  EQUALLY, IT WAS NOT DISPUTED THAT SHE WAS DISTRESSED WHEN SHE SAW HER DOCTOR.  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.  THE MISDIRECTION ON THE DIARY WAS NOT THEREFORE MATERIAL.  IN ANY EVENT, THE TEXT MESSAGES WERE PARTICULARLY COMPELLING.  AS THE TRIAL JUDGE PUT IT, THEY PROVIDED A POWERFUL AND GENERAL SOURCE OF CORROBORATION OF THE COMPLAINER’S ACCOUNT.  [10]      HAVING REGARD TO THESE MESSAGES, IN CONJUNCTION WITH THE ACCEPTED DISTRESS, IT CANNOT BE SAID THAT A MISCARRIAGE OF JUSTICE HAS OCCURRED.  THE APPEAL MUST THEREFORE BE REFUSED.