Allan Ferguson v. Her Majesty’s Advocate [2019] HCJAC 1

Note of appeal against conviction:- On 29 March 2018, at Glasgow High Court, the appellant was convicted after trial of a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009. On 3 May 2018 the appellant was sentenced to 4 years imprisonment. The appellant appealed against his conviction on the grounds that any distress exhibited by the complainer could not corroborate the complainer’s lack of consent due to the significant interval of time which elapsed. The circumstances were that around 30 hours after the incident the complainer exhibited distress on the phone to a friend from her place of work. Her friend convinced her to report the incident to the police. At the trial a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 was made at the close of the Crown case which was repelled by the trial judge. The judge took the view that the complainer’s account of her lack of consent would have been obvious to the appellant and that corroboration of her lack of consent was to be found in the evidence of the complainer’s distress exhibited on the phone to her work friend around 30 hours later. In addition, the trial judge took the view that evidence from a taxi driver who observed the appellant and the complainer shortly after the incident was of evidential value. It was noted by the taxi driver that the complainer had appeared withdrawn. The trial judge also took into account bruising on the complainer which was photographed around 5 days after the incident. It was submitted here on behalf of the appellant that the evidence exhibited by the complainer some 30 hours later could not provide corroboration of the complainer’s lack of consent. Distress had not been exhibited to anyone else earlier, most notably her parents and boyfriend. It was submitted on behalf of the appellant that distress was not capable of providing corroboration in every case and that each case turned on its own facts and circumstances. On behalf of the Crown it was submitted that the distress exhibited, if the jury accepted that it was attributable to the rape, was capable of corroborating the complainer’s account of having been forcibly raped. Here the court refused the appeal. The court considered that the sole question was whether there was corroboration of the complainer’s account that she had been forcibly raped at around 0300 hours on the Sunday. Reference was made to Yates v. HMA 1977 SLT (Notes) 42 and whether, in circumstances like the present, where a complainer has given evidence of force having been used to obtain sexual intercourse, the issue was whether there was any evidence in general which supports the broad proposition that force was used. The court noted that the length of the time interval is not what was important but, rather, whether the shocked condition or the distress of the complainer was caused by the rape. In the present case the court considered that if the jury accepted the appellant’s explanation for not exhibiting distress earlier, for example to her parents or her boyfriend, it was open to them to hold that the distress exhibited during the call to her friend, was attributable to the incident involving the alleged rape and was available as corroboration of her account that she did not consent to the forced sexual intercourse. The court also considered that there was other evidence available:- (a) the appellant accepted there had been no sexual intimacy prior to him getting into the bed naked when she was clothed and sleeping off the effects of alcohol; and (b) there was evidence from the taxi driver of the complainer rebuffing the appellant at the door to the locus and the complainer’s withdrawn demeanour on the way home. The court considered that neither afforded corroboration of the complainer’s account, however, when considered alongside the later exhibited distress there emerged “a strong corroborative case.” The court observed that bruising seen on the complainer could not afford corroboration of the complainer’s account as there was nothing linking the bruising to the incident, for example, the complainer had not attributed them to what had happened.