Graham v HM Advocate

Criminal evidence and procedure – Rape – Judge's charge – Distress – Corroboration of lack of reasonable belief of consent. High Court of Justiciary: Refusing an appeal against a conviction for rape in which the issue was whether the trial judge misdirected the jury by telling them they were entitled to use evidence of the complainer's distress on the morning after the incident to corroborate, not only her lack of consent, but also the appellant's lack of reasonable belief that she was consenting, the court held that there was no room, in the state of the evidence, for holding that, although the complainer had not consented, the appellant reasonably believed that she had, and in such circumstances it was sufficient that a trial judge, whilst properly defining rape and thus including a reference to an absence of belief, directed the jury that the complainer's account of being forcibly raped was adequately corroborated by, in this case, either distress observed by another person after the incident or an admission made by the appellant and spoken to by another witness: it followed that, although the judge's directions were erroneous, they favoured the appellant.

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