Diary entries cannot provide corroboration of distress in rape cases, appeal court holds, in refusing ‘miscarriage of justice’ claim



Lord Carloway
Lord Carloway

A man found guilty of rape who claimed that the trial judge “misdirected” the jury when he said the complainer’s diary entry could provide evidence of her distress and thus corroboration of lack of her consent has had an appeal against conviction refused.

The Criminal Appeal Court ruled that a miscarriage of justice had not occurred after it was accepted that the judge’s directions on the diary entry as proof of distress and corroboration of the complainer’s account of lack of consent, “amounted to a misdirection”.

The Lord Justice Clerk, Lord Carloway, sitting with Lady Smith and Lord Bracadale, heard that the appellant Ian Walker was sentenced to four years imprisonment in April 2015 after being convicted following a trial at the High Court in Glasgow of, among other things, the rape of the complainer.

It was not disputed by the appellant that the sexual activity libelled had taken place; the only issue at trial was consent.

In support of the complainer’s position, her father testified that he had seen the complainer when she had returned home and that she “appeared distraught”.

She looked as if she had been crying and when asked what was wrong, she replied “I don’t want to talk about it” and went to her room.

The following day the complainer visited her GP, whose unchallenged testimony was that the complainer had been “upset and distressed” while reporting that she had been raped.

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”.

The Crown relied significantly on a series of text messages sent by the appellant to the complainer on the day after the incident, in which 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”.

The appellant’s position at trial was that, not only had the complainer consented to the sexual activity, she had also initiated it, while his explanation for the text messages was that while he knew that the complainer was making an allegation of rape against him, he wanted to make her “feel better”.

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.

However, he went on 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, which could confirm that a person had suffered a distressing event and that could provide corroboration of lack of consent.

The judges ruled that the misdirection was not a material one and therefore refused the appeal.

Delivering the opinion of the court, the Lord Justice Clerk said: “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.

“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 appeal judges noted that the text messages were “particularly compelling”.

Lord Carloway added: “As the trial judge put it, they provided a powerful and general source of corroboration of the complainer’s account.

“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.”

© Scottish Legal News Ltd 2021



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