APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Carloway Lady Smith	[2010] HCJAC 43..... Appeal No: XC139/08 OPINION OF THE COURT delivered by LADY SMITH in APPEAL by ROBERT WILSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Goddard; Solicitor Advocate

Respondent: Ogg, Q.C., AD; Crown Agent

23 February 2010

Introduction
[1] On 23 January 2008, at the High Court in Aberdeen, the appellant was found guilty by a majority verdict of the jury of the following:

"on 15 September 2006 on board the MV Bounteous Sea then harboured at Stromness Harbour, Stromness you did assault Nara Gayle CrawfordNC, c/o Northern Constabulary, Kirkwall and while she was under the influence of alcohol, at times unconscious due to the effects of alcohol and bereft of the power of resistance, remove her clothing, attempt to kiss her, lie on top of her, force open her legs, kiss and lick her breasts, insert your fingers into her private parts, lick her private parts, induce her to handle your private member, pull her onto her knees and repeatedly rape her."

The appellant appeals against conviction on two grounds.

[2] The first ground of appeal states, under reference to section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 that there has been a miscarriage of justice in respect that the verdict was one which no reasonable jury, properly directed, could have returned. It is said that the complainer's evidence was so confused, contradictory and untruthful as to render her evidence wholly incredible and unreliable, that the evidence of her distress was equivocal and of insufficient quality and substance, and that there was an absence of any significant evidence of mens rea .

[3] The second ground of appeal states that a miscarriage of justice occurred in respect that a Crown witness, Dr Martyn Harvey, police surgeon, returned to the witness room after having given evidence about his examination of the complainer and gave an account of that evidence to other witnesses who were waiting to be called. That account included a description of the complainer's injuries and that it was possible for her, though intoxicated, to have safely negotiated her return on to the boat referred to in the charge. The latter was founded on by the defence as being demonstrative of the complainer not being intoxicated or not being as intoxicated as the Crown suggested. The ground states that such an irregularity by an expert witness in the presence of "crucially important civilian witnesses constitutes a miscarriage of justice."

The Issue at Trial
[4] The appellant accepted that he had had sexual intercourse with the complainer. The issue was whether or not he did so without her consent and with the requisite mens rea.

Background
[5] The evidence that was available to the jury, and that MrMr Goddard accepted as amounting to a sufficiency for the charge, described the following .

[6] The complainer, a young Canadian woman aged 21, was working on the MV Bounteous Sea as its sole crew member. The appellant, who was aged 34, was one of a party of recreational divers who had spent about a week as paying guests aboard the vessel. The complainer lived aboard the vessel in quarters accessed via a hatchway and ladder beneath the galley in its after part. She did not find the appellant particularly likeable and had an aversion to his smoking habit and the smell of cigarette smoke on his clothes and breath. She said that she "just didn't get a good vibe off of him."

[7] The night of the incident was to be the last one in the guests' trip and the complainer accepted an invitation from one of the guests to join a group in a local pub where she stayed for a few hours, drinking with the other members of the group. She had been diving earlier in the day and gave evidence of a general warning to be cautious about mixing alcohol and diving. She and the appellant sat close to each other and there was evidence of them being "cosy", relaxed and appearing to have an interest in each other. They did not, however, leave together. The complainer left while he was at the bar and another one of the guests, Andrew SinclairAS, was sufficiently concerned about her condition to escort her back to the vessel. He AS said she was drunk. He decided to escort her so as to make sure she got onto the boat safely without falling. She was wobbling en route to the quayside and he put his shoulder round supported her and kept hold of her to stop her falling. She negotiated the transfer from quayside to vessel, safely and without difficulty, in an action which he described as being that she "kind of jumped and stepped. She got hold of the railing and just stepped on." She then opened the hatch and descended the ladder to her quarters.

[8] The appellant remained at the pub drinking until closing time. He returned to the vessel with his friend Graham OwenGO, another member of the party. Once aboard, it became clear that he was determined to go down to the complainer's quarters to see how she was and, he said, to take her a cup of tea. Graham Owen GO told him he did not think that was a good idea and he should leave her to sleep. The appellant was, however, adamant and very forceful in his determination to go and see if she wanted a cup of tea. He wanted to continue what he had thought was a pleasant conversation with her in the pub. The appellant went down to her quarters leaving Graham Owen GO in the galley from where he heard a voice which he assumed to be the complainer's. There were no recognisable words; the voice was completely incoherent and he heard just mumbling. He called to the appellant to return to the galley; he felt very awkward about him having invaded the complainer's privacy. The appellant returned after about five minutes to get cups of tea and when he did so, Graham Owen GO stood on the hatch with a view to preventing the appellant from descending the ladder again. He told him he should not go down to the complainer's quarters again; he thought he wanted to have sex with her and a heated conversation ensued between them. Mr Mr Owen GO said in evidence that he did not remember the entire conversation but it was very, very long and "it got quite heated at times, and silly ... you know, silly macho stuff was said ... at one point Rob said I didn't know what was between him and (the complainer) and whether or not, you know, you know, whether they ... And I said I didn't care what was between him and (the complainer), if there was something between them it would still be there in the morning, and the difference would be they would both be sober. And then I went on to say to him "If you do something to somebody that they don't want you to do, it's rape." He was concerned that the appellant was not thinking straight and he was worried that something would happen. The Trial Judge describes Mr Mr Owen GO as coming across as an extremely responsible, impressive and plausible witness. Having heard and seen him give evidence in relation to the second ground of appeal, we can understand how the Trial Judge arrived at that conclusion.

[9] The appellant did return to the complainer's quarters, with tea. She drank some of it. Her evidence was that she was feeling very drunk, feeling ill and could not work out what the appellant was doing in her quarters; the tea caused her to vomit. She said that she felt exhausted and unable to stand. She said she told him to go away and leave her alone. She ended up on the floor, naked, although she had little memory of how she got there. She said the appellant was "over" her, that he was trying to kiss her, that she repeatedly turned her head away when he did so but that she could not stop him from touching and rubbing her private parts. She described being confused, scared and unhappy. She described her legs being held apart by the force of the appellant's knees and not being able to close them. She spoke of, for a while, not being able to move and being paralysed with fear. The appellant penetrated her vagina with his penis. She tried to push him away. At a later stage, according to the complainer, the appellant pulled her on top of him after rolling over but she was so drunk that she collapsed back on to the floor. He demanded oral sex and then penetrated her vagina with his penis again, by which time she was becoming really sore and told the appellant that. When it was eventually over, she crawled into her bunk. She denied being a willing participant in any sexual activity with the appellant. She said that her thighs and stomach were really tender for days afterwards and that bruises appeared on her legs.

[10] The appellant got in behind the complainer in her bunk, slept there and, in the morning she was severely embarrassed; she did not want anyone to know he was there. She had to get up and work. The appellant tried to have sex with her again but she was able to avoid it and go up on deck. She realised that she could not hide the appellant's whereabouts and called on him to come up. Graham Owen GO saw her and asked how she felt to which she replied that she would have felt a lot better if there wasn't anyone in her bed.

[11] The complainer broke down in front of the master of the vessel, Mervyn PirieMP, shortly after leaving her quarters. She was sobbing and distressed to the extent that Mr Mr PirieMP said it was as though her life had been turned. She said that the appellant had taken advantage of her. Mr Mr P irie asked if she wanted to report anything but she declined. She did, however, make a report to the police later on though not, she said, for anything more than for a record to be made in case someone else encountered a similar problem in the future. Otherwise, she worked and behaved normally in the course of the working day, as was spoken to by witnesses including the other members of the diving group who were called for the defence.

[12] The complainer's recollection was not complete and, as the Trial Judge reports, she was confused at times. However, by the day after the incident, she was able to give a statement to the police which, despite some discrepancies, corresponded fairly well with the evidence that was given by her in court.

Medical Evidence
[13] Dr Harvey, who examined her the evening after the incident, found apparent redness and inflammation of her vaginal area, tenderness over the pubic bone and, a few days later, found that she was very tender over the inner thighs, outer calves, buttocks, pubic bone and abdomen, and that bruises had appeared on her thighs and groin. He gave evidence that these injuries were consistent with rough or violent sexual intercourse without sufficient lubrication. Dr O'Keefe, a very experienced police surgeon disagreed; he maintained that the injuries were equally consistent with consensual intercourse having occurred.

The Appellant's Evidence
[14] The appellant gave evidence; his position was that the sexual intercourse was consensual and that it followed he and the complainer having become attracted to each other in the pub. The Trial Judge reports that in the witness box he gave the impression of having a dogmatic and rather unwielding unyielding personality and of him being unwilling to accept that he had done anything wrong at all, to the extent that he suggested that the complainer's injuries must have been caused by her work on the boat.

The Appeal

Ground 1:
[15] Mr Mr Goddard very properly accepted that there was a sufficiency of evidence and that there had been no basis for a submission under section 97 of the 1995 Act. He also accepted that , to demonstrate that the verdict was one which no reasonable jury, properly directed, could have returned, he had to overcome a high hurdle. So far as the Trial Judge's directions were concerned, no criticisms were advanced by Mr Mr Goddard. He was right to refrain from doing so; the directions were meticulous and presented in a fair and balanced way.

[16] In the course of his submissions, Mr Mr Goddard highlighted those points in the evidence which he had relied on when addressing the jury, to challenge the credibility and reliability of the complainer and the evidence of Dr Harvey. They ranged from the evidence that the complainer was able, without assistance, to jump onto the boat (thus calling into question, it was said, her assertion that she was very drunk) to the evidence that her behaviour at work was normal the following day and that she made no immediate allegation of rape. He also pointed to the evidence of Dr O'Keefe, which differed from that of Dr Harvey. What this all amounted to, he said, was a totality of contradictions such as to show that no reasonable jury could have convicted.

[17] The Advocate- Depute submitted that the complainer's evidence could not be said to have been intrinsically unreliable nor could it be said that the jury's verdict lacked a rational basis. They must have accepted the complainer's evidence; the Trial Judge had carefully told them that they could not convict the appellant unless they did so. There was evidence available to them to provide the required corroboration, whether the medical evidence or the evidence of the complainer's distress. Further, the jury had the opportunity to see and hear the witnesses, including the complainer who had had to, in giving evidence, relive a traumatic event. This was not a case where, for instance, there were interdependent charges and a jury verdict which was inconsistent with that interdependency.

Ground 2:
[18] We heard evidence from David RogersDR, Graham Owen GO and his wife, Tracy OwenTO, in relation to this ground of appeal. Both All three were present in the witness room, prior to giving evidence, when Dr Harvey returned from having given his evidence.

[19] Mr Mr RogersDR recalled Dr Harvey talking about his evidence, saying that he had had to step out of the witness box to show where the bruises were on the complainer, demonstrating with his hands what he had shown the court and speaking about the effects of alcohol consumption. He remembered him saying that learned events are the ones that a person last loses the ability to perform. Something was said about the boat being difficult to get back onto. Mr Mr Rogers DR felt uncomfortable about the discussion because he knew they had been told not to discuss their evidence. Importantly, Mr Mr Rogers DR said that what he heard from Dr Harvey did not change his evidence at all. He was not challenged on that point and we accept his evidence that that was the case.

[20] Mr Mr Owen GO recalled being very nervous at the prospect of giving evidence. Whilst he was aware of a doctor returning to the witness room, he was not aware of him speaking; he was focusing on himself at the time. He said that he gave truthful answers in evidence. Thereafter he learnt about what Dr Harvey had said. Whilst he conceded , in cross examination , that the doctor may have spoken, he said that whatever he said , he did not pay any attention to it and it had no effect on his evidence. We have already commented on our impression of MrMr Owen GO as a witness, and we accept his evidence on these matters.

[21] Mrs Owen TO was not a witness but had accompanied her husband to court as he is registered blind. She confirmed that her husband was very nervous about giving evidence. She recalled Dr Harvey returning to the witness room and giving an account along the lines spoken to by Mr Mr RogersDR. Her husband never mentioned it to her.

Decision

Ground of Appeal No. 1:
[22] Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, as amended by section 17 of the Crime and Punishment (Scotland) Act 1997, provides:

"By an appeal under subsection (1) above a person my bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on -

...

(b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned."

[23] The test is thus shown to be a high one. It is also an objective one (King v HMA 1999 SCCR 330; 1999 JC 226;1999 SLT 604); the court must be satisfied that no reasonable jury could have returned the verdict that they did return on the evidence before them. That is, the appellant must show that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty of that of which he was convicted. It is important to remember that it is not for this court to act as a second jury and consider what our verdict would or might have been. It is not for us to ask whether we would or might, in the end of the day, have had a reasonable doubt about the appellant's guilt. It is not open to us to substitute our own verdict for that of the reasonable jury. That really, however, is what the appellant's appeal on the first ground amounted to. We do not suggest that Mr Mr Goddard was not able to identify discrepancies in the evidence or point to matters which could have been seen as weakening the complainer's evidence, such as the gaps in her memory. He had plainly done so fully and properly at the trial and did so again before us. The exercise did not, however, demonstrate to us that there was not, within the evidence, a cogent framework that the jury were entitled to accept as credible and reliable and which entitled them to return the verdict that they did return. We are satisfied that there was such a framework and , accordingly , conclude that this ground of appeal is not well founded.

Ground No. 2:
[24] Whilst we agree that a witness who has given evidence should not return to the witness room where witnesses who have not yet been called are waiting, and tell them about his evidence, the fact that Dr Harvey did so had no effect. Mr Mr Rogers' DR's evidence was not affected by what he saw and heard from Dr Harvey and Mr Mr Owens GO, even, if he heard him speaking , paid no attention to it and his evidence was unaffected. In these circumstances, there is no substance in this ground of appeal either.

Decision

[25] In summary, we are unable to hold that the requirements of section 106(3)(b) are satisfied or that a miscarriage of justice has occurred. The appeal is refused.