C.J.N. v. Her Majesty's Advocate [2012] HCJAC 149

Criminal Note of Appeal Against Conviction:- On 12 September 2011, at Edinburgh High Court,  the appellant was convicted of a charge of rape. The appellant appealed against his conviction. The grounds advanced were in relation to the trial judge's directions on "distress" which had been led by the  Crown in two parts:- (a) two young men spoke to the complainer being upset and to her saying "I can't believe I did that to my best pal" (although the complainer denied having made that remark); and (b) there was evidence from a Ms F, to whom the complainer alleged, around three weeks after the events, that she had been raped and showed some distress in her narration. In relation to the trial judge's charge to the jury it was submitted on behalf of the appellant that the directions failed to give proper assistance to the jury as to the limited purpose which any relevant evidence of distress might serve. It was submitted that clear directions as to the limitations attaching to the use of distress evidence were required in a case such as this. It was conceded on the part of the Crown that the directions given by the trial judge in relation to this chapter were inadequate. Here the court considered these issues, in particular the difference between the complainer confiding in Ms F,  an issue relevant to de recenti statement as a possible assistance to the credibility of a complainer, with distress as a possible corroborative element. The court also considered whether distress exhibited in offering an account of events around three weeks after the event could amount to corroboration, as distress in being precognosed, or interviewed by the police in the future, or in giving evidence, could not be seen as providing corroboration. Further criticisms were made of the way the trial judge directed the jury on "mixed statements" made by the appellant to the effect that whilst he accepted he had had sexual intercourse with the complainer, she had consented to it. It was submitted on behalf of the appellant that the trial judge ought to have directed the jury that they could treat the hearsay evidence of the appellant having explained that the complainer had consented to what had occurred as being evidence which, if they accepted its truth, or if it were cause for any reasonable doubt, required them to acquit. Here the court considered whether the trial judge's directions in relation to the extra-judicial statements led by the Crown, when the appellant did not give evidence, were adequate.