Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 30

HCA/2014/3482/XC

Lord Justice Clerk

Lady Smith

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

FRANCIS DRUMMOND

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: I Bryce, Solicitor Advocate; Central Court Lawyers, Livingston

Respondent: Edwards AD; the Crown Agent

26 February 2015

Introduction
[1]        On 25 June 2014, at the High Court in Livingston, the appellant was convicted, first, of assaulting his partner LM, at an address in Armadale on 23 October 2013, to her severe injury and permanent disfigurement.  He was acquitted of a second charge of abducting LM, over the period 23 to 29 October, by detaining her at that address.  He was convicted of a third charge of raping LM at that address on 26 October 2013, by penetrating her vagina, despite her stating that she did not want to have sexual intercourse, contrary to section 1 of the Sexual Offences (Scotland) Act 2009.  The trial judge imposed an extended sentence of 8 years imprisonment, 6 years being the custodial element.

[2]        Leave to appeal was granted on a ground which maintains that the trial judge erred in failing to sustain a no case to answer submission on the rape charge.  The contention is that there was insufficient evidence, both of lack of consent and of lack of reasonable belief of consent.  The issue which arises, once more, is the nature and extent of the evidence which is required to prove these two elements; both of which are expressly mentioned in the statutory definition of rape (2009 Act, s 1(1)(a) and (b)).

Evidence
[3]        The appellant and the complainer were in a relationship.  This involved the consumption of excessive quantities of alcohol.  They did not live together, but occupied different flats in the same street.  The locus is the appellant’s flat.  The complainer spoke first to the assault, most of which occurred in the evening of 23 October 2013.  She said that the appellant, amongst other things, repeatedly kicked and punched her on the head and body, seized her by the arm and struck her on the neck with a knife.  The appellant later apologised.  They both went to bed and slept.  In the morning, the complainer was sore.  She had two teeth missing.  The front door and windows were locked.  She took off her blood stained clothing and returned to bed.  The complainer maintained that over the next few days she was too scared of the appellant to leave the flat.  She nevertheless agreed to a proposition put in cross‒examination that the relationship was “effectively back to normal”.   The complainer was not seen by others during this period other than apparently by one neighbour, who said that she saw her outside her own flat late on 24 October.

[4]        The complainer said that on 26 October, when she had been in bed with the appellant, he had asked her if she wanted to have sex.  She had told him that she did not and that she had her period.  This form of explanation had dissuaded him in the past.  He responded, “Oh come on”, jumped on top of her and penetrated her.  At the time she was still in a severely injured state.  Her eyes were closed, her face was numb, she had missing teeth, bruising all over her body and the cut to her neck “felt all crusty”. 

[5]        The trial judge reports that, during cross‒examination, it was repeatedly put to the complainer that, after the appellant had said “come on”, she had not said anything which would have suggested to the appellant that he did not know that she was consenting.  Her responses to this varied from repeating that she had said “no”, that he may not have known that she was not consenting and, on re‒examination, that she could not know what he had been thinking and again that she had said “no”.

[6]        The potential corroboration on the rape charge came from the testimony of friends and others who saw the complainer after she had left the flat on 29 October, when the appellant had gone to an appointment and left the key inside the door.  The complainer had gone to a flat where a number of her friends were present.  She had said initially that she had been to Glasgow and did not know what had happened to her.  She had then said that she had been assaulted by the appellant.  She was taken to hospital in an ambulance and en route, when she was still emotional, she told a friend, who had accompanied her, that she had been sexually assaulted. 

[7]        The friends spoke to the complainer being very emotional, withdrawn and displaying certain obvious injuries.  At a subsequent medical examination she was tearful and shaken.  The examination revealed bruising to her eyes, the absence of several teeth, multiple bruising of the thigh, and a 2.5cm long crusted and sloughing incised wound to the neck.  Scenes of crime examination found blood on the appellant’s bed and bedroom floor, along with two fragments of teeth.  A knife was found under a sofa and there was blood on the arm of that sofa.  Although that blood was not examined, the complainer’s blood was found on a penile swab taken from the appellant. 

Submissions
Appellant
[8]        The appellant’s contention was that the Crown had failed to lead corroborated evidence that the complainer had not consented, or that the appellant lacked a reasonable belief that the complainer was consenting to sexual intercourse, or was reckless in that regard.  McKearney v HM Advocate 2004 JC 87, CJLS v HM Advocate 2009 JC 326 and Mackintosh v HM Advocate 2010 SCCR 168 were all authority for the proposition that the Crown required to prove lack of reasonable belief by corroborated evidence in “non‒forcible” rape cases.

[9]        There was no corroboration of the complainer’s testimony that she had not consented to sex.  The distress founded upon had occurred 3 days after the alleged rape.  The complainer had not attributed her distress, as spoken to by her friends and others, to the rape, as distinct from the assault and the detention.

[10]      The complainer’s initial position had been that she had said “no” because she was menstruating.  The appellant had attempted to persuade her by saying, “Oh come on”.  Thereafter he moved on top of the complainer and penetrated her.  The complainer had said, and done, nothing to indicate a lack of consent after her initial response.  This evidence was not sufficient to establish lack of reasonable belief or recklessness at the time of intercourse.

[11]      Although there may be cases in which an antecedent physical assault could be significant in determining an appellant’s state of belief, it was of no significance in this case.  The assault had taken place on 23 October.  Thereafter the relationship had returned “effectively back to normal”.  Given that the assault occurred three days prior to the alleged rape, it could not provide corroboration of lack of consent or support for the contention that the appellant lacked reasonable belief as to the complainer’s consent.

Crown
[12]      The Crown reminded the court that the ground of appeal was directed towards the rejection of the no case to answer submission.  The complainer’s evidence had to be looked at at its highest, even if some of it may subsequently have been rejected by the jury.  The complainer’s evidence of lack of consent was corroborated by her observed distress (Lennie v HM Advocate [2014] HCJAC 103) and the evidence relating to the other charges of assault and abduction.  The effects of the assault on 23 October were still visibly affecting the complainer at the time of the rape.  The detention of the complainer was a relevant factor (2009 Act, s 13(2)(c)) as spoken to by her friends and neighbours.  They had been unable to speak to the complainer over the relevant time because of the appellant’s interventions.

[13]      In relation to reasonable belief, the injuries would have been obvious to the appellant.  The forensic evidence had corroborated the complainer’s account of telling the appellant that she did not wish to have sex because she was menstruating.  There was no evidence that the appellant had taken any reasonable steps to ascertain whether there was any consent (2009 Act, s 16).  The Crown had not relied on the distress as corroborative on this aspect of the case.

Decision
[14]      It is, as the Crown submitted, important to proceed on the basis of the Crown case, taken at its highest, even although the jury ultimately acquitted the appellant of abducting the complainer.  That case, as spoken to not only by the complainer but also supported by circumstantial evidence from her friends, was that the complainer had effectively been held captive over the period 23 to 29 October 2013.

[15]      In Lennie v HM Advocate [2014] HCJAC 103, the court expressed the view (at para [15]) that, although each case depended upon its own particular facts and circumstances, as a generality, distress, which is proved to have been present shortly after an alleged incident has occurred, will be available as corroboration of lack of consent, in the sense of confirming or supporting a complainer’s evidence that she did not consent to whatever had occurred.  The fact that the distress might have been caused in whole or in part by some other incident, including a physical assault, is irrelevant to this pure issue of sufficiency.  It is for the jury to determine whether the distress was properly attributable, at least in part, to the complainer’s account of rape.

[16]      An accused’s belief is a fact which can only be inferred from other facts proved to have occurred (Spendiff v HM Advocate 2005 JC 338, Lord Penrose at para [32]; Mackintosh v HM Advocate 2010 SCCR 168, Lord Osborne at para [18]).  What is being searched for is proof by corroborated evidence of a fact or facts from which the inference of lack of reasonable belief can be made.  Where the issue of reasonable belief is live, proof that the complainer was distressed shortly after the event, leading to the inference that it existed shortly beforehand at the relevant time, may corroborate a complainer’s testimony that it would have been clear to the accused that she was not consenting to intercourse; hence the distress. 

[17]      Although in this case the distress was displayed to others some 2 to 3 days after the alleged rape, for the purposes of the submission at trial this was the first opportunity for it to be observed, given the complainer’s prolonged detention.  It continued from her arrival at the friends’ flat and through to the journey in the ambulance, by which time the complainer had spoken of being sexually assaulted.  It was still present at the medical examination.  In such circumstances, proof of the distress was capable of corroborating the complainer’s testimony of lack of consent.  It was also available as proof that, at the time of intercourse, the complainer remained in a distressed state following upon the assaults and detention and that this would have been obvious to the appellant.  Such distress was thus available as proof that the appellant had no reasonable belief that the complainer was consenting.

[18]      It is significant that the complainer’s testimony was that she had not only said “no”, she had also provided the appellant with a reason for not wanting to have sex.  This was that she was menstruating.  This may not have been the real, or the entire, reason for her declining the appellant’s invitation.  Rather, the reason may have been thus expressed because the appellant had previously accepted it as a good reason for acceding to her wishes.  The forensic evidence of her blood being found on the penile swab provided important corroboration of her testimony that she had said “no” for this reason; its genuineness being proved from another source.

[19]      It is not just the coincidence of the complainer’s proffered reason and the finding of blood on the penile swab that provides the necessary corroboration, but the physical injuries, including the multiple bruises to the face and thigh and the crusty neck wound; all of which would indicate that, at the material time, the complainer must have been in a visibly distressed state in terms of pure physical pain.  She would therefore have been unlikely to have decided to give her free agreement to sexual intercourse with the person who had recently inflicted these injuries, whilst she was continuing to be detained by him at his flat, even if it cannot be said in absolute terms that such prior infliction of pain excludes consent in every possible case.  It is legitimate to infer that the appellant, knowing of the complainer’s state and that he had caused it, could not reasonably have believed that the complainer was proffering her consent.

[20]      There is one final matter in relation to any reasonable belief.  The onus is, of course, on the Crown to prove the offence, including the absence of belief.  However, where a complainer testifies that she did not consent and there is no evidence from the accused or any other source that he nevertheless thought that she was consenting, the state of proof is that there is no evidence of any such belief.  As the trial judge put it in this case, there was no convincing “proper evidential basis to entitle an inference of there being reasonable grounds for belief in her consent”, albeit that she left this for the jury to determine.  The court reserves its opinion on whether, in that state of the evidence, the Crown requires to produce material to negative a state of affairs which does not arise.  This was not needed at common law (see Blyth v HM Advocate 2006 JC 64, LJG (Cullen) at para [10], following Doris v HM Advocate 1996 SCCR 854).  Notwithstanding the dictum in McKearney v HM Advocate 2004 JC 87 (LJC (Gill) at para [8]) concerning proof in common law rape cases, which proceeded upon a concession by the Crown, it would be surprising if the reforms to the law of rape had intended to introduce such an additional onerous requirement.