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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> FERGUSON, APPEAL AGAINST CONVICTION BY ALLAN FERGUSON AGAINST HER MAJESTY'S ADVOCATE [2019] ScotHC HCJAC_1 (12 December 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2019]_HCJAC_1.html
Cite as: 2019 GWD 1-3, 2019 SCCR 70, [2019] HCJAC 1, [2019] ScotHC HCJAC_1, 2019 JC 53
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Menzies
Lord Turnbull
[2019] HCJAC 1
HCA/2018/238/XC
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL AGAINST CONVICTION
by
ALLAN FERGUSON
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Renucci QC; Paterson Bell (for McGovern Court Lawyers, Wishaw)
Respondent: Prentice QC (sol adv) AD; the Crown Agent
12 December 2018
Introduction
[1] This case concerns corroboration of lack of consent in a rape case where the distress
relied upon is observed after a significant interval.
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General
[2] On 29 March 2018, at the High Court in Glasgow, the appellant was convicted of a
charge which read that:
“(1) ... on 13 November 2016 at ... Street, Wishaw you ... did assault [AB] ... lie on
top of her, remove her lower clothing, penetrate her vagina with your penis, touch
her vagina, bite her neck, penetrate her anus with your finger, and repeatedly
penetrate her vagina with your fingers, all to her injury and you did rape her;
CONTRARY to section 1 of the Sexual Offences (Scotland) Act 2009.”
On 3 May 2018, he was sentenced to 4 years imprisonment.
The complainer’s account
[3] On Saturday 12 November 2016, the complainer, who was a nurse aged 22, and a
female friend had been out drinking. By the early hours of the Sunday morning, they were
both “quite drunk”. At about 2.00am they hailed a taxi, which they shared with a man
whom they had met, for the first time, earlier. He had told them that he was going to a
friend’s house to watch UFC on the television. He suggested that they should join him.
They did this. On arrival, there was a house warming party taking place. The appellant was
the occupier. There were 10 to 11 men, drinking and watching television. The complainer
and her friend were the only women. The drinking continued. Some of the party were
vaping cannabis. The complainer was invited to, and did, try this. It made her feel sick. She
went to the toilet and vomited. She decided to go home and went outside the front door to
wait for a taxi, which she had called. The appellant joined her. He said to her that the driver
would be unlikely to accept her as a fare, because she was too drunk. He suggested that
instead she should rest a while in his bed. She agreed with him. She described herself as
“Extremely paralytic”. She was taken to the appellant’s bedroom, where she fell asleep fully
clothed.
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[4] At about 3.00 or 4.00am, the complainer woke to find someone touching her bottom.
He had gone away. She later heard the front door being locked and then a lot of clattering.
The appellant had then jumped into bed with her. He was naked. He did not say anything,
when she had asked “what are you doing? He lay on top on her. He began to touch her
vagina and took off her tights. She was terrified and trying to get away. He penetrated her
anus with his fingers. She kicked him and said “no”. He penetrated her vagina with his
penis. She said “Are you even wearing anything (referring to the absence of a condom)?”
He had just laughed (“sniggered”). She had tried to push him off. She had felt pain and
said “ow, ow” repeatedly. The complainer blacked out several times. She had eventually
given up struggling; thinking that it would soon be over.
[5] The complainer awoke at about 7.00am, feeling pain in her vagina and pelvic areas.
The appellant’s fingers were in her vagina. Her bra was in place, but her dress was rolled
up and her pants had been removed. She got up and asked the appellant to call her a taxi.
He did this. The complainer said that she had not talked to the driver, except to say that,
when a friend asks you to go out, it seems like a good idea at the time. She was “pretty
much silent”. She was “in shock”. When she arrived home, she went upstairs to bed and
cried. She saw her parents at about 3.00pm, when they had made her get up and eat. She
had to pull herself together to go downstairs, “obviously”. She said nothing to her parents
as she did not want to accept that it had actually happened. She was (still) in shock. She
would not cry in front of her parents. She did not want to tell them what had happened.
The complainer saw her boyfriend at her house at about 7.00pm. She did not tell him either.
She explained again that she was in shock and did not want to feel that it had just happened
to her. She “just acted normal”. She had sexual intercourse with her boyfriend. She gave
him no indication of having been hurt.
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[6] The complainer went to work on the following day, Monday. She described herself
as “on autopilot”, feeling the pain and, in response to cross-examination, “upset and
disgusted”. At about 12.00 noon or 2.30 or 3.00pm, she phoned a friend from her work to
tell her what had happened. She was really upset and crying a lot. She then returned to her
work before seeing this friend on the following night. Her friend had convinced her to tell
the police. At the police station, certain photographs were taken. Although in due course it
was said that these showed bruising, the complainer was not asked about what injuries the
photographs showed or, if they did show any marks, what had caused them.
Corroboration
[7] There were several possible sources of corroboration. The taxi driver said that, when
he arrived, the appellant had come out and signalled “two minutes”. The complainer had
come into the hallway and headed towards the taxi. The appellant had gone towards her, as
if going to give her a cuddle or say cheerio, but she had “just brushed him tae the side” and
walked on. When she was in the taxi “she seemed fine”, although he had asked her if she
had fallen out with her “boyfriend”. She said that that is not what had happened, but that
she should not have been at that house. Otherwise the complainer had ignored the driver’s
attempts at conversation.
[8] The friend, whom the complainer had ‘phoned from her work on Monday, said that
the complainer had been in hysterics and upset in a manner which clearly indicated that
something was wrong. She was crying so hard that she was “struggling to get the words
out”. She told the friend that she had been raped.
[9] The appellant, who was 29, did not give evidence. His interview with the police was
played to the jury. The appellant’s account was that the complainer had been drunk, but not
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“so drunk that I thought it would be an issue”. They had been flirting during the party “but
nothing serious”. He said that the complainer had been sitting at his door waiting for a taxi.
He had brought her in and suggested that she should have a lie down in his bedroom. He
then went back to the party for two or three hours. After everyone had gone, he had gone
into the bedroom, having forgotten that the complainer was there. After doing some tidying
up, he had unsuccessfully tried to wake her up. He had got into bed, wearing a T-shirt and
pants, and fallen asleep. She had then woken up, pulled him towards her and kissed him. It
had been the complainer who had initiated sex by touching his penis. His position was that
the sexual conduct, which he admitted, had been consensual. They had just been “going for
it really”. He had been “quite drunk”.
The judge’s decision
[10] The trial judge repelled a submission of no case to answer. The complainer’s
evidence was to the effect that her lack of consent would have been obvious to the appellant.
Although the distress on the phone had occurred some 30 hours after the incident, the judge
took the view that the evidence of the taxi driver should also be taken into account.
Although the complainer had not appeared to be distressed in the sense of being tearful,
when in the taxi the driver’s description of her was that she had at the very least been
(at para 30), to the effect that the interval between an offence and the point at which distress
was observed was a factor, but the important question was whether the jury were satisfied
that the distress had been caused by the offence. There was no fixed interval after which
Patterson v HM Advocate 1999 SCCR 750 at 759). The judge reported that he also took into
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account the bruising which was shown in the photographs of the complainer which, it had
been agreed, were taken on 18 November 2016.
Submissions
[11] The appellant submitted that the distress heard on the phone on the Monday could
not provide corroboration of the complainer’s lack of consent, having regard to the fact that
she had not exhibited distress to anyone, including her parents and boyfriend, in the
intervening period. The distress had been too remote. Drummond v HM Advocate 2015
SCCR 180 was distinguishable. Although the distress in Drummond had been exhibited two
or three days after the alleged rape, it had been at the first opportunity. Distress was not
available as corroboration of lack of consent in every case (McCrann v HM Advocate 2003
SCCR 722; Moore v HM Advocate 1990 JC 371). Each depended upon its own facts and
circumstances (Drummond v HM Advocate (supra) at para 15, citing Lennie v HM Advocate
to be capable of corroborating lack of consent, there were other factors in that case, including
the mother’s evidence that the complainer had acted in an unusual manner on her return
home. In this case, the complainer had, in the period between the incident and the phone
call to her friend, engaged in sexual intercourse with her boyfriend, who had observed
nothing untoward. Although the trial judge had referred to the bruising in the photographs,
the Forensic Medical Examiner had not been asked to speak to them or to express an opinion
on whether they were consistent with the complainer’s account.
[12] The advocate depute responded that the complainer’s evidence of being forcibly
raped could be corroborated by distress, which was independently spoken to, if the jury
accepted that the distress had been attributable to the rape (Graham v HM Advocate (supra) at
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7
paras 24-26; Wilkinson v HM Advocate [2018] HCJAC 39 at para [17]). Where the complainer
had spoken to force, the search thereafter was to see if there was evidence in general
supporting the broad position that force had been used (Yates v HM Advocate 1977 SLT
(Notes) 42 at 43). There was no fixed interval after which distress could not constitute
corroboration (Wilson v HM Advocate (supra) at para [30]; RWP v HM Advocate 2005 SCCR
764 at 771). Corroboration was simply evidence that supported or confirmed the
complainer’s position (Fox v HM Advocate 1998 JC 94 at 100-101). There were other
adminicles of evidence. There was the bruising shown in the photographs. The taxi driver
had described the complainer rebuffing the appellant. The complainer had ignored his
attempts to speak to her during the journey. The appellant had been a stranger to the
complainer, who had a steady relationship with a boyfriend.
Decision
[13] The sole issue is whether there was corroboration of the complainer’s account of
being forcibly raped at or about 3.00am on the Sunday morning. A starting point for a
consideration of that issue is the proposition in Yates v HM Advocate 1977 SLT (Notes) 42
(LJG (Emslie) at 43) that, where a complainer has given credible evidence of force being used
to achieve sexual intercourse:
“the search thereafter is simply to see whether there is evidence in general which
supports the broad proposition of force, details of which have been given by the
girl”.
[14] The time lapse between the alleged rape and observable distress was examined at
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the court, at para [24] et seq). In Moore v HM Advocate 1990 JC 371 it had been explained (LJG
(Hope) at 377) that:
“What matters is not the time interval as such but whether the shocked condition or
the distress of the complainer was caused by the rape”.
This is undoubtedly correct. If a jury accepted the evidence of distress and that it was the
rape which had caused it, that evidence of the complainer’s physical state, independently
observed, corroborates the complainer’s account of lack of consent. The link is pre-
eminently a question of fact for a jury to resolve. Yet in Moore the court went on to hold that
a direction, that distress exhibited to a close relative, namely an aunt, some 12 or 13 hours
later could constitute corroboration, was erroneous because the complainer had, in the
interim period, visited her boyfriend, and another house and two pubs looking for her
handbag. There had been no evidence from a third party that she had been distressed before
visiting the aunt. The decision proceeded on a view that “no reasonable jury ... could have
held that the distress” seen by the aunt could have satisfied the corroboration requirement.
[15] A very similar statement of principle to that quoted from Moore v HM Advocate
(supra) is to be found in McCrann v HM Advocate 2003 SCCR 722 (LJC (Gill) at 725). There
was no fixed interval beyond which distress ceased to be corroborative. All the
circumstances were for the jury to consider. Yet in McCrann, as in Moore, the court held that
the complainer’s failure to exhibit distress to her children and to her work colleagues, and
the lack of any complaint to relatives, friends or the public during the interim period, made
it unreasonable to hold that distress exhibited some 12 hours after the incident could afford
the necessary corroboration.
[16] In both Moore and McCrann, the court appeared to be reaching a view on what might,
or might not, be expected to occur by way of complaint or distress after a woman had been
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raped. It is legitimate, in an appeal where the contention is that no reasonable jury could
have returned a verdict of guilty on the evidence presented to them, for the appellate judges
to apply their collective knowledge and experience to the issue of reasonableness (Geddes v
215). However, great care ought to be taken in a case such as this before expressing a view
of the same nature as that expressed in Moore and McCrann, if such a view is intended to
define what is to be regarded as reasonably explicable relative to the timing of visible
distress following upon a rape. Even greater care too must be taken before excluding the
occurrence of distress after an interval of time as constituting corroboration.
[17] In Wilson v HM Advocate (supra) it was said that:
“[30] The question ... is ... whether the distress described by [the witness] could
support or confirm the complainer’s account of lack of consent during an incident
which had occurred more than 24 hours previously. Of course the jury had to be
satisfied that the distress was caused by the event, and not by some extraneous
element, but the sheriff gave clear directions on that matter. The interval between
the alleged offence and the point at which distress is observed is a factor which a jury
will wish to consider, but the important point is whether the jury are satisfied that
the distress was caused by the offence. The occurrence of intervening occasions on
which a complainer might have exhibited signs of distress, but did not, may be of
some significance, but there is no fixed interval after which distress cannot constitute
HM Advocate 2000 SLT 833, LJC (Cullen) at 759”.
[18] In Wilson, the complainer had explained why she had not told either her friend, her
boyfriend or her mother about what had occurred, or exhibited any signs of distress to them.
It was a matter for the jury to determine whether to accept that explanation. There were
other factors in that case, including a significant age gap, the absence of prior sexual
intimacy and some description about the complainer’s abnormal behaviour on returning
home. A similar position exists in this case. The complainer explained why she had not
exhibited signs of distress to those whom she met in the taxi, at home and at work. If the
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jury accepted that explanation, which they clearly did, it was open to them to hold that the
distress heard on the phone, when she called a friend from her place of work, was
attributable to the incident involving the alleged rape and thus available as corroboration of
her account that she did not consent to the intercourse which had been forced upon her.
[19] It is of some note also that, although the distress was required as part of the available
corroborative evidence, it was not the only evidence which the jury could take into account
in determining whether there was corroboration of lack of consent. The appellant accepted
that there had been no sexual intimacy between him and the complainer prior to the
appellant getting into bed with her in a naked state, when she was still clothed and sleeping
off the effects of alcohol rather than anticipating a sudden, unexpected sexual encounter.
There was the testimony of the taxi driver on her conduct on the way home. This had
involved rebuffing the appellant at the door and a state of some withdrawal thereafter.
Neither element would have sufficed on its own, but when combined with the later distress,
a strong corroborative case emerged. For completeness, the bruises were not available as
corroboration in the absence of evidence linking them to the incident. Rectification of this
deficiency may not have required medical evidence, but in that event the complainer would
have had to link them to what had happened and she was not asked to do so.
[20] The appeal is refused.