Francis Drummond v. Her Majesty’s Advocate [2015] HCJAC 30

Appeal against conviction:- On 25 June 2014, at Livingston High Court, the appellant was convicted after trial of assaulting his partner, LM, to severe injury and permanent disfigurement. He was also convicted of a charge of raping LM contrary to section 1 of the Sexual Offences (Scotland) Act 2009. He was acquitted of a charge of abducting LM from 23 to 29 October. The trial judge imposed an extended sentence of 8 years imprisonment, 6 years being the custodial element. The appellant appealed on the ground that the trial judge erred in failing to sustain a no case to answer submission on the rape charge in that there was insufficient evidence of lack of consent and of lack of reasonable belief of consent as defined in section 1(1)(a) and (b) of the 2009 Act. During the course of the trial the complainer spoke of the assault charge which related to conduct on 23 October 2013. In her evidence 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”, however, at the time she was still severely injured as a result of the earlier assault. 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 which had dissuaded him in the past. The appellant stated “Oh come on”, jumped on top of her and penetrated her it was repeatedly put to the complainer that, after the appellant had said “come on”, she had not said anything which would have indicated to him that he did not know that she was consenting. Her position was that she had said “no”. 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 that she had been sexually assaulted. The friends spoke to the complainer being very emotional, withdrawn and displaying obvious injuries. At a subsequent medical examination she was described as being tearful and shaken. The examination disclosed a number of injuries. A forensic examination of the locus disclosed 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. The complainer’s blood was found on a penile swab taken from the appellant. It was submitted on behalf of the appellant 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. Further, it was submitted there was no corroboration of the complainer’s testimony that she had not consented to sex and the distress founded upon had occurred 3 days after the alleged rape. The complainer had not attributed her distress to the rape, as distinct from the assault and the abduction. It was submitted that 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 given the lapse in time as the assault had taken place on 23 October and the relationship had returned “effectively back to normal” and given 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. On behalf of the Crown it was submitted that the complainer’s evidence had to be considered at its highest even if some of it may subsequently have been rejected by the jury and the complainer’s evidence of lack of consent was corroborated by her observed distress and the evidence relating to the other charges of assault and abduction. It was submitted that the effects of the assault on 23 October were still visibly affecting the complainer at the time of the rape and the detention of the complainer was a relevant factor and spoken to by her friends and neighbours who had been unable to speak to the complainer over the relevant time because of the appellant’s interventions. It was further submitted on behalf of the Crown that in relation to reasonable belief, the injuries would have been obvious to the appellant and 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 and there was no evidence that the appellant had taken any reasonable steps to ascertain whether there was any consent. Here the court observed that it is important to proceed on the basis of the Crown case and there was evidence not only from the complainer but also supported by circumstantial evidence from her friends, that she had effectively been held captive over the period 23 to 29 October 2013. The court considered the case of Lennie v HMA [2014] HCJAC 103 and that, 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 the issue of sufficiency and it is for the jury to determine whether the distress was attributable, at least in part, to the complainer’s account of rape. In relation to an accused’s belief it is a fact which can only be inferred from other facts proved to have occurred and 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. In the present case the court considered that distress was thus available as proof that the appellant had no reasonable belief that the complainer was consenting. The court observed that whilst the onus is on the Crown to prove the offence, including the absence of belief, 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.