Rogers Mutebi v. Her Majesty's Advocate [2013] HCJAC 142

Criminal note of appeal against conviction:- On 25 July 2012 at Glasgow High Court the appellant was convicted after trial of a charge of rape and a charge of theft. At the close of the Crown case a submission was made under section 97 of the Criminal Procedure (Scotland) Act 1995. The basis of the submission was that there was insufficient corroboration of the offence of rape and, in particular, that there was no corroboration of the requirement of reasonable belief on the appellant's part as to the complainer's lack of consent. It was submitted that the complainer's distress later on the day of the event was insufficient to corroborate the complainer's account in circumstances where the crime did not involve force. The trial Advocate depute sought to rely upon a number of factors which were said to provide the necessary corroboration. These were inter alia the fact that the parties had not previously been in a relationship, that the complainer was menstruating at the relevant time and was wearing a tampon and would not have wanted to have sex at such a time, that the complainer was under the influence of alcohol, evidence of her distress later in the day, the appellant's admission to stealing the complainer's mobile phone and money, the appellant's having left the door of the flat ajar when he left and that he had given differing accounts of the events to the police and at judicial examination. The trial judge repelled the no case to answer submission and indicated that he considered that the distress alone might provide the necessary corroboration. Here it was submitted on behalf of the appellant that where the Crown could not point to the use of any force as evidence of the necessary knowledge or recklessness on the part of the appellant in relation to the complainer's consent, proof of mens rea required to be established by other means. It was submitted that the complainer's distress later in that day could not amount to sufficient corroboration of the appellant's mens rea or absence of reasonable belief at the time of the offence and it was necessary in non forcible rape cases for there to be corroborated evidence that the appellant knew at the time of intercourse that the complainer was not consenting. On behalf of the Crown it was submitted that even if the complainer had initially consented to sex, such consent was withdrawn when she said "no". The evidence was that the appellant had ceased to have intercourse only some 20 seconds after the complainer said "no". If conduct continues to take place after consent has been withdrawn, it continues to take place without consent and that is rape. Here the court decided that none of the factors relied upon by the Crown as providing corroboration for withdrawal of consent provided any evidence as to the appellant's knowledge or state of mind during the short interval of time after consent withdrawn by the complainer and the appeal was upheld.