HKSAR v. CHAN CHUN YIN

CACC 51/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 51 OF 2008

(ON APPEAL FROM HCCC NO. 69 OF 2007)

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REASONS FOR JUDGMENT

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Hon Stock JA (giving the Reasons of the Court):

Introduction

1.  On 20 December 2007 the applicant was convicted after trial before Saw J and a jury of the offence of rape.  He was made the subject of a training centre order.  He sought leave to appeal against conviction.

2.  On 5 November 2008 we dismissed the application and said that we would give reasons later.  This we now do.

3.  The events with which the case was concerned took place on the night of 23 and 24 December 2006.  At that time, the applicant was aged 15 years seven months.  He was a person of no previous convictions.  The complainant was a young lady then aged 17 years.

4.  The background and the key issue in the case were helpfully summarized by the trial judge in his opening remarks of the summing-up:

“… as we now know, there was a party on board a vessel which was moored in the Aberdeen Typhoon Shelter.  There were, as you will recall, a number of young boys and girls who ranged from between the ages of 15 years and 17 years who went to this party.  It started in the evening and did not conclude until after dawn the following morning when those remaining left the vessel and went to a restaurant in Aberdeen.

Over a number of hours, quite large amounts of alcohol were consumed in the course of the playing of finger-guessing games and dice-guessing games.  We learnt that the loser in those games was punished by being required to drink a quantity of alcohol mixed with green tea or orange juice.  [The complainant] … was one of those present and one taking part in these games, as was Chan Chun-yin whose Christian name is Jackie and, as you know, he is the defendant in this trial.  [The complainant], we know, frequently lost, she told you, that night, because she did not know how to play these games.

It is the prosecution’s case that sometime in the early hours of the morning of 24 December, [the complainant] and the defendant had sexual intercourse.  The prosecution say that this was without her consent and that the defendant was aware of this and thus, if that be the case, then he had raped her.  The defendant, you are equally aware, told the police that this was not, in fact, the case and that [the complainant] willingly and actively engaged in consensual intercourse with him.  These two descriptions of the events which have led to the defendant facing this charge of rape are, as you might think, members of the jury, irreconcilable.  [The complainant] has told you that she had fallen asleep and awoke to find the defendant having sexual intercourse with her and, when she realised what it was that he was doing, she attempted to push him away.  On the other hand, the defendant told the police when interviewed – and as put to the witnesses in cross-examination – that not only was she consciously consenting to have sexual intercourse from the outset but that, prior to this, they had been engaging in acts of mutual cuddling and kissing and that when the time came to undress, it was she who removed her underwear so that the defendant could penetrate her.”

5.  Amongst the admitted facts was the admission that on the afternoon of the 24 December 2006, three text messages were sent from the defendant’s mobile telephone to the complainant’s mobile telephone.  They were as follows:

(1)   at 3.25pm : “I am Ah Jack.. . are you all right?”

(2)   at 3.50pm : “(I am) SOR! Really very sorry for (the incident) yesterday! I could not control myself!  Do not be unhappy!”

(3)   at 3.59pm : “I know that nothing can be done tocompensate…. but if there is anything thatmay make you less sad, I will try to do it!  The most important is that you do not hateme.”

Evidence

6.  The complainant gave evidence at considerable length.  She was cross-examined for about two days.  She described how she became the worse for drink and how there came a time at which the defendant held the upper part of her body in his arms but was dragged away by one of her friends.  

7.  There were two rooms on the boat with which the case was primarily concerned, a large sleeping quarter, or cabin, with bunkbeds and a small cabin.  She lay down on a single bed in the large cabin and a few minutes later she noticed the defendant lying next to her but he appeared to be asleep.  A little later she awoke and went to a lavatory to vomit.  Then she came back to the large cabin and went to another bed on which she went to sleep.  The next thing she knew was hearing noises and sensing people about and feeling pain in the region of her vagina and she then saw the defendant on top of her and felt his penis inside her.  She tried to push him away with her hands but “because at that time I was very unwell and very tired and I was not as forceful as he was I couldn’t push him away.  And also, his hands were pressing on my shoulders so I was even more unable to push him away.”  Someone told the defendant to stop what he was doing, and he stopped and got up and adjusted his clothing.  He left the room.  She put on her underpants and cried.  She went to the toilet and found white fluid coming from her vagina.  She then went to the small cabin because there were some girls in there, including one called Dorothy, and there she slept again.  

8.  There was much evidence, both from this witness and from others, as to the events of the next two days, when the complainant spent time in the company of some of the girls who had been on the boat, including Dorothy and another called Ivy, complained to them about the defendant’s conduct, eventually told her mother that she had been sexually abused and then went to the police.

9.  There was evidence from one of the youths, Cheung Wai-leung, who had been on the boat, who was the one who first came across the complainant and the defendant having sexual intercourse.  He called the others to have a look.  He admitted that he had been rather drunk.  He said that later in the day when he and some of the other males who had been on the boat, including the defendant, were at a cafe, he remembered one of the youths, Wong Tsz-kin, putting text messages into the defendant’s telephone.  He thought that that had taken place in the course of the morning.  There was much that he could not remember.

10.  Then there was the evidence of Ivy and of Dorothy, of Wong Tze-kin, and of another girl called Carol.

11.  The defendant did not testify nor did he call evidence on his own behalf.

12.  The grounds of appeal as they were originally presented appeared to be discrete.  However, in her oral argument, Ms Draycott SC stressed that she intended them to be viewed against the background of her contention that the case against the defendant was not strong and that, in those circumstances, the negative tenor of the summing-up, evidenced, she said, by the individual complaints she made, took on added significance.  In support of the argument that the case was not strong, she pointed to contradictions within the testimony of the complainant herself, to the delay before the matter was reported to the police, and to the suggestion that what was seen by the group who watched intercourse taking place between the complainant and the defendant was inconsistent with the complainant’s account of her resistance.

Ground 1: the text messages

13.  The first ground of appeal asserted that “the judge was wrong to suggest to the jury that text messages sent from the defendant’s mobile telephone on the day following the act of intercourse ‘of course made no sense if the intercourse had been entirely consensual’, when that was not the only inference that could be drawn from them and there was evidence that the defendant had not sent them or chosen the words.”

14.  The complaint was that this was not the only inference to be drawn, since the telephone texts might have been a joke, or an apology for ejaculating inside the complainant when he had promised not to do so or for not desisting when others were watching.

15.  We pause to comment that there was no evidence, nor was it ever put to the complainant, that he had promised to withdraw.  Be that as it may, we were not in any event persuaded that there was anything in this ground.  

16.  As always, one has to examine such matters in their proper context.  Having emphasized to the jury that it was not an admitted fact that the messages had been sent by the defendant and that they were to be careful about concluding that they had been sent with his knowledge on his behalf, what the judge said was:

“From all of the above … it might be – but it will be a matter entirely for you – that you infer that the second and third messages were indeed sent on behalf of the defendant and that the content of those messages reflected that which he wished to convey to [the complainant] that afternoon.  That is entirely a matter for you.

If you were to conclude from all of the evidence that this was the case, is it not evidence that the defendant was, at the time of sending those messages or having those messages sent on his behalf, acknowledging, at the very least, that he was, in addition to apologising, very sorry for an incident which had occurred yesterday in which you could not control himself.

Members of the jury, if the sexual intercourse had been, as it is suggested, entirely consensual then, of course, these messages in that context appear to make no sense, do they?  This will, however, be a matter that you must, as the triers of fact, address.” (Emphasis added).

17.  Almost immediately prior to these comments, the judge had reminded the jury specifically of his direction as to inferences, a reminder of the direction that if there was more than one inference to draw, the one adverse to the defendant was not the one to draw.  Time and again the judge told the jury that conclusions of fact were for them and they were not bound by any hint of any view they thought he was advancing.  In any event, the criticized comment was a passing comment, not a direction, and in the absence of any evidence from the defendant about the intent of the apology, was an acceptable comment to make.  Most particularly, it was a comment about a conclusion that the jury might draw, against the background of a reminder that they were not to draw an adverse inference unless it was the only reasonable one to draw.

Ground 2: the evidence of Wong

18.  The second ground or complaint was that:

“The judge was wrong to repeatedly remind the jury of the shortcomings of Wong Tsz Kin as a witness when he gave evidence potentially favourable to the defence, namely, that he, not the applicant, had sent the messages to [the complainant].”  

19.  Wong, it will be remembered, was the person who said in evidence that he had sent two of the three text messages from the mobile telephone of the defendant.  The judge reminded the jury of the essence of Wong’s testimony and that he, Wong, had had the greatest difficulty remembering the events of the night in question.  Later he said to the jury that:

“The admitted facts do not permit you to conclude that the defendant was aware of the contents of the messages.  It is a matter you might infer if you choose to do so but it would be on the evidence of Wong … and you must be alert to the obvious shortcomings of him as a witness.”

20.  The complaint was that the judge disparaged his testimony and was wrong to have characterised it as having “obvious shortcomings”.  Ms Draycott said that the judge’s comment was tantamount to ‘rubbishing’ the evidence of the witness.

21.  That is not a characterization with which we agree.  We do not think that this complaint was arguable.  In the first place, it is quite apparent that the judge was anxious, in the defendant’s favour, to warn the jury about accepting the testimony of this witness that he had sent the messages on the defendant’s behalf (if indeed he had sent them at all).  That very anxiety on the judge’s part itself points against the refrain of Ms Draycott’s submissions that the judge was bent on an exercise of denigration where the evidence might favour the defendant.  Secondly, the testimony of this witness was so riddled with “obvious shortcomings,” that it would have been odd for the judge not to have made the remark and was a fact that in any event must have been starkly apparent to the jury.

22.  Wong conceded in his testimony that at the material time he was drunk.  There was little that he could remember.  His testimony was awash with the repeated answer: “I can’t remember.”  Indeed, he commenced cross-examination by saying that he could not even remember seeing the defendant in the cafe from which he, Wong, had (allegedly) sent the messages, even though a little while later he said that the defendant was there by his side when he did so.  At one stage, he said that he had sent the messages on his own initiative but could not remember why he did not use his own mobile telephone to do so.  He then said that he sent the messages in order to comfort the complainant and was doing so on his own behalf, a bizarre thing to do, one might think, since he had done nothing wrong.  When he realised the nonsense of that, he said that he sent the messages on another person’s behalf but that he could not remember whether he did so at the request of any person.  He was asked how it came about that he sent messages on behalf on the defendant and to that as well he said: “I can’t remember.”

Ground 3: the evidence of Cheung

23.  The third ground or complaint was equally weak.

24.  It was that:

“The judge was wrong to say of Cheung Wai-leung that he did not tell us a great deal except that he was the applicant’s close friend when that witness:

(i)        supported the evidence that the text messages, or one of them, was put into the applicant’s phone by Wong Tsz Kin and not the applicant;

(ii)        it could also be inferred from the fact that this witness had called the party into the large cabin to watch the act of intercourse as a joke, that he did not think that it was rape.”

25.  In her written argument, Ms Draycott suggested that the evidence of Cheung was potentially favourable to the applicant “in that it was unlikely that he would have called the party, which included a number of girls, to watch rape.”  She complained also that the comment that the witness “did not tell us a great deal” was capable of indicating to the jury that the witness could have said a lot more but chose not to do so out of loyalty to the applicant.

26.  The judge summarized the evidence of Cheung, such as it was, in some detail including the witness’s testimony about Wong using the defendant’s telephone to input messages and at the tail end of the summary, the judge, in the manner of an aside, passed the comment that the witness “really did not tell us a great deal, did he?”

27.  Reading that comment in its proper context, it was an entirely harmless remark and, in any event, it was accurate.  There was little in this witness’s testimony that was not common ground.  There were matters that he could not remember because he had been affected by drink.  He described how he came across the complainant and the defendant having sexual intercourse, but there was no suggestion that he saw how it commenced nor that he was in a position to see how the complainant was responding to what was going on.  All he could see was the defendant on top of the complainant with some “shaking” going on but “at that time, it was rather dark and also I do not wear my spectacles when I was sleeping … .”  As for the mobile telephone messages he said: “I can’t be certain about the telephone calls [allegedly coming from the girls to the youths in the café] but I remember that there was SMS transmission”; and when it was put to him, he accepted, as the judge reminded the jury, that Wong had transmitted some messages through the defendant’s telephone.  In re-examination, he thought that this transmission of messages in the cafe took place on the morning of the 24 December, whereas it was an admitted fact that they took place in the afternoon.

28.  The suggestion that the effect of this witness’s testimony that he called the party into the cabin to watch the act of intercourse meant that he did not think that it was a rape has very little to do, so it seems to us, with the judge’s comment.  The judge was not suggesting for a moment that what this witness and other members of the party saw was of no significance at all.  But yet again comments in a summing up are not to be analyzed as if they have nothing to do with the facts of the particular case.

29.  A number of witnesses, not only this witness, spoke of watching the act of intercourse and none of them suggested that he or she saw any overt violence or overt resistance by the complainant.  No doubt counsel acting for the defence made as much of this in his closing address (a copy of which we do not have) as he was able; but regard must be had to the circumstances of this particular alleged rape.  It was central to the evidence of the complainant, and to the allegation of rape advanced by the prosecution, that the rape was constituted by the fact of intercourse by the defendant upon a person so affected by drink that she was deeply asleep when the defendant decided to and did have sex with her and that such resistance as she was able to offer was minimal, both because of her condition and because she was being held by her shoulders.  It was also common ground that there was a duvet covering part of the bodies of the two.  In those circumstances, there was nothing in what was seen by this witness that was inconsistent with the account of rape advanced by the complainant. 

Ground 4: the ex-boyfriend remark

30.  Ground 4 reads:

“The judge was wrong to imply that the evidence of [Dorothy] was somehow of less worth because it was gratuitous and unprompted, when that evidence was to the effect that she thought that [the complainant] was upset by issues with her boyfriend rather than by a rape.”

31.  This comment has been castigated by counsel for the applicant as being a type of “judicial advocacy” which, it is said, was inappropriate in a summing-up.

32.  There was much evidence from the complainant as well as from the other girls who had been on the boat as to when it was and in what circumstances the complainant first alleged that she had been improperly interfered with by the defendant.  In the course of prosecuting counsel’s re-examination of the witness Dorothy, at whose home the complainant spent the first night after the boat incident, Dorothy said that on the afternoon of 24 December, just after the complainant had arrived at Dorothy’s home, she appeared not to be enjoying herself.  Dorothy was asked by counsel to do her best to tell the court how the complainant appeared at that time, to which the witness answered:

“A: She didn't say anything and she appeared to be a bit upset, but not because of the incident that took place on the boat.  Rather, it was because of the matter about her ex-boyfriend.

Q: She told you so, didn’t she?

A: Yes.

Q: Anything else she told you on that day, 24 December?

A: No.

Q: About the incident on the boat?

A: Not mentioned.” 

33.  This evidence was on its face significantly inconsistent with evidence given by Dorothy in examination-in-chief when she said that when the female party arrived at her home on the afternoon of 24 December, the complainant was:

“… asked why, all along, she remained silent after coming to my home.  And then there was some chatting about she and her ex-boyfriend. … And then she suddenly became very upset and she said that, yesterday, it seems that she had been interfered with by [the defendant].  She said she wanted to push him away but she had no strength to push him away.” (tr 312).

34.  The evidence in re-examination was inconsistent with the evidence in-chief because in chief the witness made clear that whilst there was talk about the ex-boyfriend, the complainant became very upset because of sexual interference by the defendant; whereas in re-examination the implication was that it was only the ex-boyfriend that was the problem.

35.  At the end of an extensive summary of Dorothy’s evidence, the judge said:

“For what it is worth, Mr Lo re-examined Dorothy and, from that, we learnt that [the complainant] … was not a very good mahjong player but, from Dorothy’s perspective, she appeared to be enjoying herself other than when she was upset at Dorothy’s home.  And then, gratuitously, you might think, and unprompted, she advanced the proposition that the reason that [the complainant] was upset at her home was because of issues arising out of her ex-boyfriend and not with what had happened between her and the defendant the night before.  What you make of that, members of the jury, is a matter entirely for you.” (p 43)

36.  In saying that the comment in re-examination about the cause of the upset was unprompted, the judge was stating the fact.  It is difficult to determine whether he was suggesting that the reason advanced by Dorothy might (not least given her earlier testimony) be untruthful or whether, on the other hand, it was a point being made in the applicant’s favour, namely, that because it came unprompted, it might be the truth.  Assuming for present purposes that it was the former, it was a comment in the mildest of terms and well within the bounds of what is permissible.  Had the judge wished to make a remark truly undermining the reliability of Dorothy’s evidence in re-examination, that could have been achieved with greater effect by specifically inviting the jury to contrast Dorothy’s earlier evidence on the point and to remind them of its text and the natural manner in which it emerged.  He did not do so.

Ground 6: the two cabins

37.  Ground 6, with which it is convenient to deal before Ground 5, asserted that:

“The judge was wrong to say that there was a paucity or absence of evidence about whether or not [the complainant] and the defendant had been in the smaller cabin and that the defendant had led [her] to the larger cabin where intercourse then took place, when two witnesses spoke to these matters.  This was important evidence which supported the defence case and the judge was wrong to say that were the jury to attempt to conclude what was happening from such evidence they would be speculating.”

38.  The comfort that the defendant sought to draw at trial from the evidence of Dorothy was that aspect of it in which she suggested that there came a stage when she was in the small cabin and she saw the defendant lead the complainant by the hand out of the small cabin and that this was before the complainant and the defendant were seen to be having sexual intercourse in the large cabin.  The implication was that the two of them had already become intimate and were seeking a more private place in which to further their consensual intimacy.  It was said that by the impugned direction, the judge directed the jury to draw no conclusion from the evidence and that he thereby effectively withdrew from them evidence significantly beneficial to the defendant.

39.  The testimony of the complainant in this regard was that she only went to the small cabin after the rape.  She went there to seek the safety of the company of the girls who were there and, once there, she went to sleep.

40.  In her evidence in-chief, the girl called Ivy said that she went to sleep in the small cabin and that whilst there she saw the defendant pulling the complainant out and that it was later that she witnessed the sexual act taking place in the large cabin.  It is relevant to note, however, that in the course of cross-examination she was shown a statement which she had made to the police only a few days after the boat incident, in which she described an altogether different sequence.  She there described a stage when it was already daylight, and after witnessing sexual intercourse between the complainant and the defendant, that she went outdoors for fresh air and only then went to the small cabin when she saw the complainant asleep in the small cabin with Dorothy and others, including the defendant.  It is worth pausing here to note that the testimony of all the witnesses evidences a night in which people were the worse for drink, were moving from one room to another and from one sleeping space to another; including evidence that the defendant was following the complainant from place to place and had at one stage to be pulled away from her.  The statement made by this witness to the police is not inconsistent with the sequence of events described by complainant and, of itself, undermines the point that the applicant wished, by this ground, to make.

41.  Dorothy testified that she slept in the small room and that gradually people, including the defendant, came.  She fell asleep and there came a time when the complainant came in and appeared unwell and sat next to her and that at that stage the defendant came into the room and left with the complainant.  It was later that she was awoken by Cheung Wai-leung who said that somebody was having sexual intercourse.  Dorothy however went back to sleep.

42. The evidence of a girl called Carol is significant in this context.  The judge remarked that this witness ‘ appeared to have a clear recollection of the events commencing on the boat at Aberdeen’.  She described how she saw the complainant fast asleep on the carpet next to a bed in the large cabin, and how she and another helped the complainant up onto the bed and then she saw the defendant on the bed where they had placed the complainant.  She feared that they might catch a cold so she put a duvet over them.  In this regard, it is to be remembered that when the act of intercourse was taking place there was a duvet covering the pair.  She saw the defendant holding the complainant and kissing her but the complainant made no response and her eyes were closed.  Carol shook them apart.  She wanted to pull the defendant away because he was “prostrating himself” on the complainant.  (We pause to note that this was not the only suggested incident of the defendant being pushed or pulled away: the complainant had testified that earlier in the evening, Carol herself had pushed him away from herself, that is from Carol, and that then the defendant had put his arms around the complainant he had been dragged away by one of the complainant’s friends).  According to Carol, the defendant then walked away and the complainant continued to sleep on the bed alone and shortly thereafter the defendant returned.  He went on to the bed and held the complainant in his arms but she made no response.  She was asleep.  Carol went outside.  She awoke in the morning and the complainant and the defendant were no longer on the bed where they had been.  Carol then went to the small cabin and there she saw Dorothy and the defendant holding each other’s arms and then she saw the complainant who appeared to have been crying.  Carol’s evidence tends to support the sequence of events to which the complainant had attested; namely, unwanted attentions in the large cabin followed by a retreat to the small cabin.  The fact that the defendant happened at the end to be in the small cabin as well is neither here nor there: it is consistent with his pattern of following the complainant about.

43.  It is against this background that we examine the part of the summing-up that is attacked.  Towards the end of the summing-up, the judge reminded the jury that there were conflicts between what witnesses said they had seen as well as conflicts between their oral testimony and what they had told the police.  That did not, he reminded them, mean that they should reject the testimony of a witness where there was such a conflict, only that they might do so.  In this regard, there were, he suggested, two particular matters to be addressed: the first was the time at which the complainant had made her first complaint and the second was whether the complainant had been together with the defendant in the small room before the alleged rape.  

44.  It was in this context that the judge said that in relation to the first matter there was, “a great host of evidence” and in relation to the second matter “very little evidence”.  That was factually correct.  He then added that as to the events in the smaller cabin there was “a paucity of evidence about that matter.”  He then reminded the jury what that evidence was and, as we have earlier noted, in doing so said nothing about the inconsistency between Ivy’s oral testimony and what she had told the police.  He reminded them as well that, on this matter, as well as generally, the defendant had given no evidence.  He suggested that this was one area where it may be that they were not able to resolve the matter.  There was, he said an absence of evidence on the matter and to conclude from what evidence they had what was happening “you might consider – but it is entirely a matter for you – that you will be speculating.”

45.  As we have seen, the evidence about what happened in the small cabin and most particularly when it happened, was indeed sparse.  It is pertinent to note that some of that evidence did not help the defendant, especially the suggestion that he had pulled the complainant out of that cabin, a fact or piece of evidence to which the judge had drawn the jury’s attention quite shortly before reminding them that the defendant himself had not testified and it may be that he was warning the jury that they should not draw inferences adverse to him if they could not be sure what had happened in the small cabin.

46.  It was suggested that the judge should have expressly told the jury that if it was or might have been the case that the defendant and the complainant had been in the small cabin before they went to the big cabin, and if it was or may have been the case that if the holding of hands was consensual rather than a pulling out, then that undermined the complainant’s recollection of events and tended to support a case of consensual rather than forced sexual intercourse.  That is, we believe, precisely the message that the judge conveyed, for having rehearsed the evidence on this very issue, deliberately choosing to treat it at length as a separate issue deserving specific attention, he said to the jury in relation to the variety of testimony on the point:

“These are, members of the jury, matters that obviously you will have to consider and you have to consider whether they cause you reservations about the evidence of any of the witnesses.  You will have to consider whether they directly impact on the allegation made by [the complainant] that she had sexual intercourse with the defendant.”

(Ms Draycott correctly pointed out that the fact of sexual intercourse was not an issue, but it is obvious enough that what the judge intended to say was “non-consensual sexual intercourse”, or words to that effect.)

47.  Furthermore, this jury could have been under no misapprehension about the significance of this issue.  The evidence about what happened in the small cabin and who went where and when was, not surprisingly, not a cohesive account and much of the evidence upon the particular point now raised was hardly helpful to the defendant.  In this full context, we do not agree that the criticism made of the impugned passage in the summing-up founded a valid ground of appeal.  

Ground 5: the suggestion of imbalance

48.  As pleaded in the grounds of appeal, the fifth ground merely asserted that the judge ought to have drawn the jury’s attention to the fact that none of the witnesses saw the complainant push away the defendant, as she had suggested.  Put thus, the ground is readily assessed by regard to the facts.  The evidence was that it was dark.  The evidence was that the defendant was lying on top of the complainant and the evidence was also that the couple was covered, to some extent, by a duvet.  That apart, none of the witnesses suggested that they saw the act from start to finish and, more particularly, in so far as they assumed the complainant to be asleep (suggested by Ms Draycott to stand in stark contrast with her testimony that she was awake) it is to be remembered that she was on any view much affected by drink, no doubt very drowsy, and she testified that the only resistance she could muster in the position she found herself was weak.

49.  However, the ground as developed orally took on a broader character altogether.  It was that the summing-up was not balanced in that there were a number of material factors which the judge ought to have drawn together and placed, as a group, before the jury for its consideration as factors favouring the defence case and that the judge failed to do so.  In support of this contention, Ms Draycott relied on three matters.

50.  The first was that Ivy said that at the time of the incident, the complainant appeared to be sleeping and that she, Ivy, did not see the complainant looking for her underwear.  This, it was suggested, was inconsistent with the testimony of the complainant.  We are not sure that, on any view of the matter, this helps the defendant, since it was the complainant’s case that intercourse started with her when she was indeed fast asleep and not as part of a willing act on her behalf.  Ivy was so concerned by what she saw that she was moved to challenge the defendant at the time by saying to him: “What are you doing here?  Don’t do it.”  She asked that question because the complainant appeared to her to be asleep, the clear implication being that the defendant was taking advantage of her.  This apart, we have earlier drawn attention to the darkness in which events were taking place, the relative positions of the defendant and the complainant, the complainant’s condition, and the fact that the two were covered, in part, by a duvet.

51.  Next, Ms Draycott drew our attention to a passage in the testimony of Ivy in which she described a conversation between the girls and the complainant at a restaurant in Aberdeen after they had left the boat:

“Q: And what was the subject of the conversation with you?

A: I told her what I had seen in the big room, and I asked her if she had knowledge that this incident had taken place.  That’s it.

Q: Did [the complainant] make any response?

A: She said that she didn’t have much knowledge about this and she only came to know about this upon my telling her.

Q: What else did she say?  Or that’s all that you could recall?

A: That’s all to my recollection.”  (Emphasis added).

It is the emphasised passage upon which Ms Draycott placed particular stress.  The point is that if this meant that the complainant had no idea of what had gone on in the boat until such time as it was revealed to her by Ivy at the restaurant in Aberdeen, the complainant’s entire testimony was dramatically undermined.

52.  The judge sought some clarification at the end of re-examination and asked the witness, Ivy, why she had asked the complainant if the complainant had knowledge of the incident.  Ivy responded: “Because at the time when the incident took place, it appeared to me that she was asleep.”

53.  What, we note, was not asked by anybody was what it was that Ivy had told the complainant she had seen (“I told her what I had seen in the big room”).  For all one knows, Ivy may have gone into considerable detail about the events of the evening, the detail of which was new to the complainant.  Furthermore, there was no suggestion that arose from this piece of testimony that, either from Ivy’s perspective or from that of the complainant, that the complainant had been a willing party to intercourse.  In any event it was not, according to the evidence, the first time that the subject matter had been raised, for we see from Dorothy’s testimony that the subject was mentioned on the ferry on the way from the boat to Aberdeen so, if Dorothy is correct, it would have been odd unless Ivy had already mentioned it on the boat, for the complainant to say that the first she had heard about the matter was from Ivy.  Furthermore, if the complainant’s position at the restaurant was that she had not known of the incident before, it would have been odd for her then on the same afternoon, in front of the same listeners, suddenly to have blurted out, as Dorothy testified, that she, the complainant, had been interfered with on the boat and that she had tried to push the defendant away.  We note too that Carol’s evidence was that she had noticed on the boat when she said good morning to the complainant that the complainant appeared to have been crying and that at the restaurant she remained subdued.  If the judge was to make something of Ivy’s remark in evidence in favour of the applicant, he would then have had to qualify it by referring to those factors that countermanded the interpretation upon it for which Ms Draycott contends.  In addition, the judge reminded the jury of the testimony of Ivy upon which this point is concentrated and in the circumstances we have described, we do not think that the judge’s failure to make the point urged by Ms Draycott constitutes or contributes to imbalance.

54.  Lastly, Ms Draycott pointed to evidence of Carol in examination-in-chief about a discussion with the complainant at Dorothy’s house on the afternoon of 24 December:

“A: [Dorothy] asked her … whether she was willing at that time.

…

She said that at that time she did not know what was happening, but later on she came to know that her dress had been lifted up.” 

55.  This was suggested to stand in marked contrast to the testimony of the complainant, and to imply that the first the complainant knew of intercourse was after the event because she noticed that her dress was lifted.  

56.  Those seasoned in the nuances of testimony in this jurisdiction and translations of it, will be cautious about applying literal constructions upon all oral evidence.  Such matters must be examined with regard to turns of phrase and in full context.  Carol was the one who had seen the complainant in apparent distress on the boat and, in her own testimony, the complainant had described how she had at first been fast asleep, that she slowly opened her eyes and only then discovered that the defendant was penetrating her and she added that when he was doing this her skirt had been lifted up.  Looking at matters realistically and recognizing turns of phrase, we fail to see that what Ms Draycott relied upon is the necessary inconsistency for which she contended.  It is a possible interpretation, but if the judge had made a special point of it he would no doubt have had to balance that by reminding the jury of the detail given by the complainant that fitted with the comment she made to Carol.  That is unlikely to have assisted the defendant.

57.  We do not think that this was an unbalanced summing-up.

58.  We would add only this: that the complainant’s evidence was tested at length in the witness box, that in so far as one can make assessments from a reading of evidence, her evidence appears credible and coherent, that it was not gainsaid by the defendant, that the issue in the case was a simple one that was placed squarely before the jury with a very full reminder of the evidence, including those matters said to enure to the defendant’s benefit.  The suggestion of imbalance was not made out and there was no flaw in the directions of law.

Conclusion

59.  Accordingly, this application for leave to appeal against conviction was dismissed.