Murphy et al. v. The Queen, [1977] 2 SCR 603

Supreme Court of Canada

Murphy et al. v. The Queen, [1977] 2 S.C.R. 603

Date: 1976-07-12

John Patrick Murphy and John Joseph Butt Appellants;

and

Her Majesty The Queen Respondent.

1975: October 27; 1976: July 12.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Rape—Corroboration—One of two accused denying intercourse—Evidence as a whole plus complainant’s distraught condition corroborative of complainant’s story implicating each of the accused.

The complainant, a 16-year-old Indian girl, testified that she was taken by the two appellants (M and B) under a pretence of friendship to an apartment which they occupied and that she was then raped first by M and then by B. She alleged that M later drove her to a bus station where she first telephoned a cousin and then the police with the result that a constable arrived, who, after speaking with the complainant, took her to a hospital. While speaking with her cousin and during the subsequent interview with the policeman, the complainant was in an emotionally distraught condition. Convincing evidence of her mental condition was given by both the cousin and the policeman.

Both appellants testified in their own defence. M admitted intercourse but alleged it was with the complainant’s consent. B denied having intercourse. Both M and B admitted that they had picked up the girl while driving about the streets of Vancouver late at night, had done so because they were of the opinion at the time they picked her up that she was a prostitute, that they had taken her to their apartment and, that later when she slept in the living room, M testified that he had left the bedroom to which first B and then he had retired, had entered the living room and had, as he alleged, intercourse with the complainant with her consent, and then had retired to the bedroom.

They both testified that later M had left that bedroom again returning to the living room and then, when the complainant desired to be driven downtown, had again returned to the bedroom to borrow the car keys from B. M then testified that he drove the complainant downtown and that when she attempted in vain to borrow $20

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from him she left the automobile. This latter incident was denied by the complainant.

On a charge of rape, the appellants were convicted before a judge and jury. The British Columbia Court of Appeal dismissed an appeal from the convictions and an appeal to this Court followed.

Held (Laskin C.J. and Dickson J. dissenting in part): The appeal should be dismissed.

Per Martland, Judson, Ritchie, Pigeon, Spence, Beetz and de Grandpré JJ.: It was all of the evidence plus the complainant’s distraught condition which the jury were entitled to consider as corroboration of not only M’s but B’s rape of the complainant. The fact that M admitted intercourse with the complainant could not deprive the whole of the evidence of its corroborative effect as to each of the accused.

Whether or not circumstantial evidence was consistent with another rational conclusion is a question of fact so no appeal as of right can be based on the dissent of a judge in the Court of Appeal upon such issue.

R. v. Conners and Jones, [1972] 5 W.W.R. 1 applied; R. v. Thomas, [1951] O.R. 422, referred to.

Per Laskin C.J. and Dickson J., dissenting in part: In the case of B, the appeal should be allowed and a new trial directed. The complainant’s hysterical condition or emotional distress may be evidence that is corroborative against an accused who admits sexual intercourse, as M did, but who at the same time alleges consent. In such a case it may properly be regarded as supporting the complaint in a material particular, that is want of consent, and to implicate the accused because of his admission of intercourse. However, a complainant’s hysterical condition cannot implicate an accused in any material particular when, as in the case of B, he has denied intercourse and there is no other evidence (apart from the complainant’s) that can support a finding of intercourse.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing an appeal by both appellants from their conviction for rape. Appeal dismissed, Laskin C.J. and Dickson J. dissenting in part.

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S.R. Chamberlain, for the appellants.

F.A. Melvin, for the respondent.

THE CHIEF JUSTICE (dissenting in part)—I have had the advantage of seeing the reasons proposed by my brother Spence and I agree in his proposed disposition of this appeal so far as it concerns the appellant Murphy. I differ from him, however, with respect to the co-accused and co-appellant Butt, and for the reasons which follow I am of the opinion that a new trial should be directed in his case.

On a trial of co-accused for the same offence, allegedly committed by each separately, each accused is entitled to have the benefit of a proper direction to the jury that will relate to each separately on the issues that go to their separate culpability. The present case concerns a piece of evidence, the hysterical condition of the complainant of a rape by each of the two appellants, of which testimony was offered by two witnesses to whom she complained of rape shortly after it allegedly took place. This piece of evidence was the only evidence which the trial judge told the jury was capable of being corroborative of the complainant’s testimony, and he told the jury that it was capable of being corroborative with respect to each accused.

Both accused gave evidence. Murphy admitted intercourse but alleged it was with the complainant’s consent. Butt denied having intercourse and, apart from the evidence of the complainant against him, there was no other evidence upon which a finding that he had intercourse with her could be made. In this situation the trial judge had to consider whether to limit his charge to the jury in respect of Butt to the required warning that it was not safe to find Butt guilty in the absence of corroboration (within the meaning of s. 142 of the Criminal Code) but that the jury could do so if it was satisfied beyond a reasonable doubt that her evidence was true. However, he went beyond this in telling the jury that there was evidence capable of being corroborative (within the statutory prescription) as against Butt as well as against Murphy, and that was the evidence of the complai-

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nant’s hysterical condition. In this I think he was plainly wrong.

I do not quarrel with the proposition that a complainant’s hysterical condition or emotional distress, evident after the commission of an alleged rape, may be adduced in evidence as corroboration provided, however, that, in the words of s. 142, it is “evidence that implicates the accused.” It cannot be said that evidence of a complainant’s hysterical condition or emotional distress is capable of being corroborative at large and that it can be used accordingly against a particular accused simply because the complainant has alleged that he raped her. It may be evidence that is corroborative against an accused who admits sexual intercourse, as Murphy did, but who at the same time alleges consent. In such a case it may properly be regarded as supporting the complaint in a material particular, that is want of consent, and to implicate the accused because of his admission of intercourse. I am unable to understand, however, how a complainant’s hysterical condition can implicate an accused in any material particular when he has denied intercourse and there is no other evidence (apart from the complainant’s) that can support a finding of intercourse.

I have examined the line of cases in this country in which evidence of a complainant’s hysterical or emotional condition has been held to be admissible as corroboration in a material particular implicating the accused. In each of the cases hereinafter cited, where such evidence was dealt with, it was brought in on the issue of consent where there was either an admission of or independent evidence of intercourse: see R. v. Thomas[2], reversed on other grounds[3]; R. v. Aubichon[4]; R. v. Bear, Bear and Tinker[5]; R. v. Boyd[6]; R. v. White, Dubeau and McCullough[7]; R. v. Connors and Jones[8].

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The Privy Council said in James v. R.[9] at p. 301 that “where the charge is rape, the corroborative evidence must confirm in some material particular that intercourse has taken place and that it has taken place without the woman’s consent and also that the accused was the man who committed the crime.” If it is enough under s. 142 that, where the complainant’s evidence is the only evidence that implicates the accused, evidence offered as corroboration need only go to a material particular, it is still necessary that it be evidence that implicates the accused. The only issue on which a complainant’s hysterical condition may logically be offered as corroboration is want of consent, but without some other basis in the evidence to show intercourse evidence of a hysterical upset can no more implicate the accused on want of consent than it can implicate him on the issue of identification where that is contested.

Counsel for the respondent Crown in the present case, if I understood him correctly, said that although the complainant’s hysterical condition would not, taken alone, implicate the accused Butt, nor would the mere fact that the accused Butt was on the premises where Murphy admittedly had intercourse with the complainant, nonetheless the two things taken together provided the required implication. This submission fails entirely to implicate the accused in any act of intercourse, and without proof of such an act the case against Butt must fail if it is to stand on a foundation of corroboration.

I can appreciate concern that a scrupulous regard for the limitations on corroborative evidence may make it difficult to deal with “gang” rape. This issue was faced recently by the Ontario Court of appeal in R. v. White, Dubeau and McCullough, supra, where the Court split in a gang rape case on whether the finding of some bloody kleenex at the locale of an alleged rape was capable of being corroborative on the issue of want of consent, the majority holding it was not. The fact that a gang rape is alleged, where some members deny intercourse, does not justify any different application of the rules of law than in a

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case where there is an allegation of rape by one person who denies intercourse. If there is no proper corroborative evidence, there may still be a conviction if the jury chooses to bring in a verdict of guilty after being warned of the danger of convicting on the uncorroborated evidence of the complainant.

I would allow the appeal of Butt and direct a new trial for him.

The judgment of Martland, Judson, Ritchie, Spence, Pigeon, Beetz and de Grandpré JJ. was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for British Columbia pronounced on November 15, 1974. By that judgment, the Court of Appeal dismissed an appeal by both appellants from their conviction before the Honourable Mr. Justice McKay and a jury upon a charge of rape. Branca J.A. dissented in the Court of Appeal and in accordance with the provisions of s. 605 of the Criminal Code the formal judgment of the Court contained the following paragraphs:

BE IT RECORDED that the Honourable Mr. Justice Branca dissents from the decision of this Honourable Court on the following question of law:

THAT circumstantial evidence as to the distraught condition of the complainant that was consistent with two rational conclusions was not capable of corroborating the evidence of the complainant.

Counsel for the appellants relied upon those paragraphs as the basis for an appeal to this Court under the provisions of s. 618(1)(a) of the Criminal Code.

I am of the opinion, however, that an appeal does not lie to this Court upon a question so framed for the short reason that it is not a question of law. When circumstantial evidence is submitted by the Crown then the jury may only accept that evidence as corroboration if it is consistent with the guilt of the accused and inconsistent with any other rational explanation. It is for the jury to determine as a question of fact whether (a) the evidence is consistent with the guilt of the accused,

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and (b) whether that evidence is inconsistent with any other rational conclusion. Branca J.A. was of the opinion that the evidence submitted was not inconsistent with any other rational conclusion but his view upon that issue was a decision of fact and not of law. It should be noted that the learned trial judge instructed the jury upon the issue in the following terms:

You will also keep in mind that this is circumstantial evidence and you would only draw a corroborative inference if you concluded it was consistent with an offence having been committed and having been committed by the particular accused you are considering and inconsistent with any other rational explanation.

I am, therefore, of the opinion that in so far as the ground of appeal upon which the accused relied for an appeal as of right is concerned the appeal should stand dismissed.

The appellants, however, applied to this Court for leave to appeal in accordance with the provisions of s. 618(1)(b) and in such application requested leave to argue the following questions:

1. Was there misdirection or non-direction amounting to misdirection by the learned trial Judge in his charge, when he instructed the jury that the hysterical condition of the complainant was capable in law of corroborating the issue as to whether the Appellant, Butt, had intercourse with the complainant?

2. Was there non-direction amounting to misdirection by the learned trial Judge in his charge when he failed to instruct the jury that they should attach little or no weight to the evidence of the hysterical condition of the complainant in that the possibility exists that she might well be simulating distress where the distress is displayed at the time of the complaint having first been made by the complainant?

The time for hearing this application for leave to appeal was extended to the date of the hearing of the appeal and the argument upon the appeal was, in fact, an argument upon the questions which I have set out immediately above. It is at this time appropriate to outline some of the circumstances which gave rise to the charge of rape. I quote from the reasons of McFarlane J.A. speaking for the majority of the Court of Appeal for British

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Columbia and summarizing the evidence of the complainant:

The testimony of the complainant, a sixteen year old native Indian girl, may be summarized as follows: That the two appellants being together in an automobile picked her up, by offering her a lift to the home of a friend of hers, on a street in Vancouver at an early hour of the morning of October 18th, 1973; that they took her to a house where they occupied a basement suite containing a bedroom and a livingroom in the latter of which there was a cot or couch: having removed only her coat she lay on this cot otherwise fully clothed and fell asleep: that she was awakened by the presence on the cot of Murphy, who thereupon by threats which frightened her had sexual intercourse with her, against her will and without her consent: that Murphy then left the living-room and before she could dress herself Butt entered from the bedroom, naked, and by the use of similar threats also had sexual intercourse with her against her will and without her consent: that later Murphy drove her to a bus depot where she telephoned to a cousin in Prince Rupert and that following a conversation with that cousin she telephoned to the Vancouver Police with the result that a Constable arrived about 7:50 a.m., spoke with her and then took her to a hospital.

Both appellants testified in their own defence. The appellant Murphy admitted that he had had intercourse with the complainant but alleged that such intercourse was with her full consent not as a result of any intimidation. The appellant Butt testified that upon reaching the apartment occupied by both appellants he had immediately retired to bed and had no knowledge of any events which occurred thereafter until his co-appellant Murphy had awakened him in order to borrow the keys for his automobile. There are, of course, discrepancies between the evidence given by the complainant and that given by the two appellants and even certain discrepancies between the evidence given by one appellant and the other with which I shall deal hereafter.

The learned trial judge properly gave to the jury in his charge the warning required by the provisions of s. 142 of the Criminal Code. That section provides:

142. Notwithstanding anything in this Act or any other Act of the Parliament of Canada, where an accused is charged with an offence under section 144, 145, subsection 146(1) or (2) or subsection 149(1), the

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judge shall, if the only evidence that implicates the accused is the evidence, given under oath, of the female person in respect of whom the offence is alleged to have been committed and that evidence is not corroborated in a material particular by evidence that implicates the accused, instruct the jury that it is not safe to find the accused guilty in the absence of such corroboration, but that they are entitled to find the accused guilty if they are satisfied beyond a reasonable doubt that her evidence is true.

It may be noted that by an amendment wrought by the Criminal Code Amendment Act, 1975, 1974-75-76 (Can.), c. 93, s. 8, the requirement that the trial judge give to the jury the above warning has been removed and a very different procedure instituted.

The learned trial judge then continued:

Now, I tell you as a matter of law that the only evidence capable of being considered by you as corroborative of the complainant’s testimony with respect to each accused, if you believe that evidence, is the evidence of her distraught condition as described by her cousin, Ruth Cecil, and the police constable who picked her up at the bus depot.

It is the propriety of giving to the jury this evidence as being possible corroboration which was the subject-matter of the first question upon which leave to appeal was sought and granted. It is submitted by counsel for the accused that such evidence fails in the first requisite for its acceptance as corroboration in that it was not independent. It was evidence of the observance of emotional distress which was exhibited by the complainant herself. The question as to whether such evidence may be submitted to the jury as corroboration has been canvassed in a variety of cases and the results of those cases are by no means consistent. McFarlane J.A., in his reasons for judgment, relied particularly upon the decision of the British Columbia Court of Appeal in R. v. Conners and Jones[10]. In that decision, the Court of Appeal for British Columbia held that the distraught condition of the complainant shortly after the incident complained of and her emotional reactions during an interview

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with the police the day following were capable in law of amounting to corroboration. In arriving at that conclusion, the Court of Appeal for British Columbia had cited with approval the decision of the Court of Appeal for Ontario in R. v. Thomas[11], where Roach J.A. said at p. 432:

It was argued that the emotional condition of the wife could not be corroborative of her story. I disagree. It is of course possible to think of a case where a woman consented to the act and immediately thereafter became affected by remorse, but it surely must be left to the jury to assess the value to be attached to the emotional condition of a woman shortly after an occasion upon which she alleges that she has been violated. It is evidence to be considered in relation to other evidence which…

That case came to this Court and a new trial was ordered but upon a different ground.

The respondent’s factum, I believe, sets out the proper view as follows:

Independent testimony of a rape complainant’s emotional condition is capable at law of corroboration where it is sufficiently damning that it may be considered by a jury to be more consistent with her denial of consent than with the existence of consent, or, to put it another way, where a reasonable inference can be drawn by a jury, considering all the circumstances, that there is a causal relationship between the assault and the complainant’s distraught emotional condition.

In the present case, the complainant, who I have noted was a sixteen-year-old native Indian girl, displayed this emotionally distraught condition firstly in a telephone call to her cousin made within fifteen minutes after she had been driven by the appellant Murphy back to the bus terminal in Vancouver and again in an interview with a policeman whom she called as soon as she had ceased speaking to her cousin. Her mental condition was most marked and very convincing evidence thereof was given by both the cousin and the policeman. I am of the opinion that such evidence could qualify as corroboration within the provisions of s. 142 of the Criminal Code. The weight which should be given to such evidence was, of course, a matter for the jury and it must be presumed that the jurors

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did assess its weight in accordance with their sworn duty. Cases which deal with the emotional distress of the complainant vary all the way from R. v. Redpath[12], where the victim was a small child and the evidence proferred was that of persons who had observed her immediately after the incident when she did not know she was under observation, to cases where the complainant exhibits the emotional distress a very considerable time after the incident and when she had failed to display such a distraught condition after the incident and before the display which was the subject-matter of the evidence. In such latter case, the independent character of the evidence is very doubtful and courts have very properly excluded it from consideration as corroboration required by the provisions of the Code.

The second question advanced upon the application for leave to appeal dealt with the alleged failure of the learned trial judge to instruct the jury that they should attach little or no weight to the evidence of the hysterical condition of the complainant in that the possibility existed that she might well be simulating distress. The learned trial judge, in his charge to the jury, reciting the theory of the defence, pointed out this very danger saying:

The defence points out that the crying and hysteria are easy to simulate if one is laying a trap. The defence’s theory is that she was laying a trap. The defence says, “Why should she lay a trap? Well, she needed money and in frustration when Murphy refused her a loan of $20 she cried “rape” in retaliation”.

Throughout his charge, the learned trial judge had stressed that the Crown must prove each and every ingredient beyond a reasonable doubt and had adequately pointed out to the jury their duty of assessing the credibility of each witness. There is, of course, the danger that a complainant motivated by most improper considerations would simulate her distress but the determination of whether that has occurred is essentially the task of the jury and, in my view, the jury in this case was adequately alerted to that duty and would consider its decision in the light of the fact that the complainant was a young native Indian girl in a

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strange city and that she had, even apart from the actual rapes with which she charged the two accused, undergone a very stressful experience over many hours. It is to be noted that the defence theory as to the complainant’s anger at failing to obtain the $20 loan depends on the evidence of the appellant Murphy alone and that when counsel for the appellants cross-examined her as to the allegation that she had attempted to obtain a $20 loan from the appellant Murphy the complainant answered “No way. I didn’t ask him for nothing. As soon as he stopped that car I walked as fast as I could to the nearest phone.”

Under all of these circumstances, I am of the opinion that no complaint can be made as to the sufficiency of the charge in reference to the jury’s duty of weighing the possibility that the complainant was simulating her distress.

A considerably more difficult problem was advanced in argument by counsel for the appellants as to the availability of the evidence of the complainant’s distress as advanced as corroboration in the particular circumstances of this case. It is to be remembered that both appellants admitted that they had taken the complainant into the car driven by the appellant Butt and in which the appellant Murphy rode and driven to the basement apartment occupied by them both and further that the appellant Murphy admitted having intercourse with the complainant but alleged that it had been with the consent of the complainant while the appellant Butt had testified that he had retired to the bedroom and to sleep immediately upon arriving at the apartment and had never left that bedroom or even touched the complainant at any time and his testimony to this effect was confirmed by the appellant Murphy.

Under these circumstances, it is submitted that the evidence as to the overwrought condition of the complainant could not be in any way corroborative of her evidence accusing the appellant Butt and that as to the appellant Murphy even if evidence of the complainant’s hysterical condition could be corroborative on the issue of consent in so far as the appellant Murphy is concerned, it could not be corroborative as identifying him and, at any rate,

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he had admitted that he had intercourse with the complainant. It must be carefully considered just what is required by the provisions of s. 142 of the Code. It is firstly called into force when “the only evidence that implicates the accused is the evidence, given under oath, of the female person in respect of whom the offence is alleged to have been committed”. Those conditions do apply to the present case. Then what is required is “that evidence is not corroborated in a material particular by evidence that implicates the accused”. So that what is required to be corroborated is a material particular of the evidence of the complainant. The evidence of the complainant was, as I have already recited, that she was taken by these two appellants acting under a pretence of friendship to the apartment which they occupied and then raped first by the appellant Murphy and then by the appellant Butt. It is a material particular of that evidence which must be corroborated. There is no requirement that the whole of her evidence be corroborated. Were that the requirement, there would be no need for even the evidence of the complainant. The so-called corroborative evidence would be sufficient for a conviction.

It is true that corroboration to be within s. 142, as it then existed, had to be evidence that implicated the accused and counsel for Butt submits that in the light of Murphy’s admission of intercourse with the complainant the corroboration was only required as to Murphy on the issue of consent and that the overwrought condition of the complainant, even if capable of corroborating her evidence upon that issue as to Murphy could in no way corroborate her evidence that Butt as well had intercourse with her without her consent. The jury were required to consider all of the evidence upon the issue not only of the identity of her assailants but of her lack of consent. That evidence not only included Murphy’s admission that he had intercourse with the complainant, as he alleged with her consent, but also the admissions of both Murphy and Butt that they had picked up this girl while driving about the streets of Vancouver late at night, had done so because they were of the opinion at the time they picked her up that she was a prostitute, that they had taken her to their apartment and, that later when she slept in the

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living room, Murphy testified that he had left the bedroom to which first Butt and then he had retired, had entered the living room and had, as he alleged, intercourse with the complainant with her consent, and then he had retired to the bedroom.

They both testified that later Murphy had left that bedroom again returning to the living room and then, when the complainant desired to be driven downtown, had again returned to the bedroom to borrow the car keys from Butt. Murphy then testified that he drove the complainant downtown and that when she attempted in vain to borrow $20 from him she left the automobile. This latter incident, as I have pointed out, was denied vehemently by the complainant.

It is all of that evidence plus the complainant’s distraught condition upon which the Crown relies as corroboration of not only Murphy’s but Butt’s rape of the complainant. The jury were entitled to consider all of that evidence and to come to the conclusion that that evidence with its rather unusual outline of events does corroborate the evidence of the complainant. It was that evidence which the learned trial judge left to the jury as evidence which they might find corroborative of the complainant’s testimony.

In my view, the learned trial judge was correct in his conclusion that that evidence was capable of corroborating the complainant’s story implicating each of the accused.

Under these circumstances, therefore, I am of the opinion that the fact that Murphy admitted intercourse with the complainant cannot deprive the whole of the evidence of its corroborative effect as to each of the accused.

As Coady J.A. said in R. v. Jesseau and Breen[13], at p. 296:

[The] defence offered by the respondents is a matter for consideration by the jury and does not affect the question of whether or not the evidence of torn clothing may be corroborative of the complainant’s story. That ques-

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tion, it seems to me, has to be decided quite apart from the defence evidence, and if more consistent with her story, the jury may find that it is corroborative.

It would be intolerable if evidence which was admissible and relevant as corroboration of the complainant’s evidence were made inadmissible or ineffective by some admission made by the accused.

For these reasons, I would dismiss the appeal.

DICKSON J. (dissenting in part)—I have had the advantage of reading the reasons of the Chief Justice with which I agree. I should like, however, to make several observations. First, s. 142 of the Criminal Code (now repealed) appears to contain a logical inconsistency. The section requires the judge to instruct the jury in the manner specified if: (i) the only evidence that implicates the accused is the evidence of the female person and (ii) that evidence is not corroborated by evidence that implicates the accused. If the only evidence implicating the accused is that of the female person, it would seem to follow logically that there could be no other evidence implicating the accused. Be that as it may, the intent of the section is clear and trial judges have not experienced difficulty in repeating its language in jury charges. I pass then to the second observation.

This relates to s. 21(1) of the Code. This section goes to the question of guilt and not to corroboration, but I think that some reference to it is warranted. Section 21(1) provides that everyone is a party to an offence who actually commits it or does or omits to do anything for the purpose of aiding any person to commit it or abets any person committing it. In many “gang” rape cases, the Crown relies upon this section to secure conviction of members of the group who may not have had intercourse with the complainant but aided others. In the case at bar, the theory of the Crown was that each of the accused had had intercourse with the complainant. The Crown did not rely upon s. 21 and the judge did not charge on s. 21. The onus therefore rested upon the Crown of proving inter-

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course by each accused.

During the trial, Murphy admitted intercourse, which left open so far as he was concerned only the question of consent or no consent. On this point, evidence of the distraught condition of the complainant was capable of corroborative effect and Murphy, in my view, was properly convicted.

The position of Butt is different. He testified, confirmed by Murphy, that he had gone to bed upon arrival at the apartment and had taken no part whatever in the events recounted by complainant. When the judge came to consider s. 142, as affecting Butt, the question before him was whether there was evidence on the record implicating Butt, which corroborated in a material particular the evidence of complainant that Butt had had intercourse with her. How does a distraught condition, essentially neutral, incriminate Butt, or lend credence to the story of the complainant that he, in addition to Murphy, forced intercourse upon her? Can a distraught condition in the circumstances of this case be identified with any particular person? Can it be related to any particular act? Can it be said that the condition was attributable to forced sexual intercourse and that the person or one of the persons who forced intercourse upon the complainant was Butt? If not, then it is difficult to see how it can be said to have corroborative force. The possibility of corroborative effect is, no doubt, enhanced by the accuseds’ testimony that they were cruising in the middle of the night in downtown Vancouver and that they picked up complainant whom they thought might be a prostitute and took her to the accuseds’ apartment where the three remained during the relevant period. Within the totality of the testimony it may be argued that the evidence of hysteria assumed greater significance. Nonetheless, there is no evidence capable of corroborating the vital element in question in the case against Butt, namely intercourse with the complainant. In any rape case, there are essentially two items requiring corroboration, offence and identity. Each needs confirmation. It is not neces-

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sary that the same evidence corroborate both items but it is essential that both items be corroborated.

In the case of Warkentin v. The Queen, in which reasons are being delivered contemporaneously with those in the present appeal, there was not, in my view, corroborative evidence as to identity. In the case at bar there is not, in my view, corroborative evidence as to the offence. It is not enough to find guilt by association.

I would allow the appeal of Butt and grant him a new trial.

Appeal dismissed, LASKIN C.J. and DICKSON J. dissenting in part.

Solicitor for the appellants: S.R. Chamberlain, Vancouver.

Solicitor for the respondent: F.A. Melvin, Vancouver.