Rapist who claimed delayed distress did not corroborate lack of consent loses appeal against conviction

The High Court of Justiciary Appeal Court ruled that the distress did provide corroboration of the complainer’s account of being forcibly raped despite the significant time interval, as the appellant had explained why she had not shown signs of distress to others in the intervening period.

Lack of consent

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that the appellant Allan Ferguson was sentenced to four years’ imprisonment after being convicted following a trial at the High Court in Glasgow in March 2018 of raping a 22-year-old nurse in the early hours of Sunday 13 November 2016.

The complainer’s evidence was to the effect that her lack of consent would have been “obvious” to the appellant, who was unknown to her until she and a female friend attended a house-warming party at his home at the end of a night out drinking on Saturday 12 November.

The complainer told the court that after the assault, which took place in the appellant’s bed, she woke up at about 7am and left the house alone in a taxi.

The taxi driver’s evidence was that as the complainer approached the car the appellant had tried to give her a cuddle or say bye, but she had “just brushed him tae the side” and got into the vehicle.

He asked her if she had fallen out with her “boyfriend”, and she responded by saying that was not what had happened but that she should not have been at that house, and she otherwise ignored the driver’s attempts at conversation.

The complainer said she was “in shock” and when she arrived home, she went upstairs to her bed and cried. 

She saw her parents at about 3pm on Sunday afternoon, but said nothing to them as she did not want to accept what had actually happened and did not want to cry in front them.

The complainer saw her boyfriend at her house at about 7pm and they had sex that night, but she did not tell him either because she was still in shock and she just tried to act “normal”.

She went to work on Monday morning and phoned a friend in the afternoon to tell her what happened, during which conversation she was described as being “in hysterics” and crying so hard that she was “struggling to get the words out”.

‘No case to answer’

The appellant, who was 29, did not give evidence but his position was that the sexual conduct, which he admitted, had been consensual.

The trial judge repelled a submission of “no case to answer”, having considered that although the distress on the phone had occurred some 30 hours after the incident, the evidence of the taxi driver that she was “withdrawn” should also be taken into account.

However, in the appeal it was 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.

It was argued that distress was not available as corroboration of lack of consent in every case, and that in this case the distress had been “too remote”.

In Drummond v HM Advocate 2015 SCCR 180, although the distress had been exhibited two or three days after the alleged rape, it had been at the first opportunity.

While in Wilson v HM Advocate 2017 JC 135, 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”.

Corroboration

Refusing the appeal, the judges noted that in Moore v HM Advocate 1990 JC 371 it had been explained 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”.

Delivering the opinion of the court, the Lord Justice General said: “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. 

“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.”

“However,” Lord Carloway continued, “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.”

He added: “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.”