FERGUSON, APPEAL AGAINST CONVICTION BY ALLAN FERGUSON AGAINST HER MAJESTY'S ADVOCATE [2019] ScotHC HCJAC

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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] ScotHC HCJAC_1, 2019 JC 53, 2019 SCCR 70, [2019] HCJAC 1, 2019 GWD 1-3

Appellant: Renucci QC; Paterson Bell (for McGovern Court Lawyers, Wishaw)

[1] This case concerns corroboration of lack of consent in a rape case where the distress

[2] On 29 March 2018, at the High Court in Glasgow, the appellant was convicted of a

“(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.”

[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

[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

[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

[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.

[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

[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

[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

“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

[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

withdrawn. The judge had regard to the observations in Wilson v HM Advocate 2017 JC 135

(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

distress could not constitute corroboration (RWP v HM Advocate 2005 SCCR 764 at 771;

Patterson v HM Advocate 1999 SCCR 750 at 759). The judge reported that he also took into

account the bruising which was shown in the photographs of the complainer which, it had

[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

[2014] HCJAC 103). Although, in Wilson v HM Advocate (supra), a delay of 30 hours was held

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

[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

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

[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

“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

[14] The time lapse between the alleged rape and observable distress was examined at

some length in Wilson v HM Advocate 2017 JC 135 (LJG (Carloway), delivering the opinion of

the court, at para [24] et seq). In Moore v HM Advocate 1990 JC 371 it had been explained (LJG

“What matters is not the time interval as such but whether the shocked condition or

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

[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

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

HM Advocate 2015 JC 229, LJC (Carloway) at para [89] following AJE v HM Advocate 2002 JC

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.

“[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

corroboration (RWP v HM Advocate 2005 SCCR 764, Lord Hamilton at 771; Paterson v

[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

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.

Scottish High Court of Justiciary Decisons