Francis Drummond Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lady Smith,Lord Drummond Young |
| Neutral Citation | [2015] HCJAC 30 |
| Docket Number | HCA/2014 |
| Published date | 13 March 2015 |
| Date | 26 February 2015 |
| Court | High Court of Justiciary |
| Year | 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 30
HCA/2014/3482/XC
Lord Justice Clerk
Lady Smith
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
FRANCIS DRUMMOND
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: I Bryce, Solicitor Advocate; Central Court Lawyers, Livingston
Respondent: Edwards AD; the Crown Agent
26 February 2015
Introduction
[1] On 25 June 2014, at the High Court in Livingston, the appellant was convicted, first, of assaulting his partner LM, at an address in Armadale on 23 October 2013, to her severe injury and permanent disfigurement. He was acquitted of a second charge of abducting LM, over the period 23 to 29 October, by detaining her at that address. He was convicted of a third charge of raping LM at that address on 26 October 2013, by penetrating her vagina, despite her stating that she did not want to have sexual intercourse, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The trial judge imposed an extended sentence of 8 years imprisonment, 6 years being the custodial element.
[2] Leave to appeal was granted on a ground which maintains that the trial judge erred in failing to sustain a no case to answer submission on the rape charge. The contention is that there was insufficient evidence, both of lack of consent and of lack of reasonable belief of consent. The issue which arises, once more, is the nature and extent of the evidence which is required to prove these two elements; both of which are expressly mentioned in the statutory definition of rape (2009 Act, s 1(1)(a) and (b)).
Evidence
[3] The appellant and the complainer were in a relationship. This involved the consumption of excessive quantities of alcohol. They did not live together, but occupied different flats in the same street. The locus is the appellant’s flat. The complainer spoke first to the assault, most of which occurred in the evening of 23 October 2013. She said that the appellant, amongst other things, repeatedly kicked and punched her on the head and body, seized her by the arm and struck her on the neck with a knife. The appellant later apologised. They both went to bed and slept. In the morning, the complainer was sore. She had two teeth missing. The front door and windows were locked. She took off her blood stained clothing and returned to bed. 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”. The complainer was not seen by others during this period other than apparently by one neighbour, who said that she saw her outside her own flat late on 24 October.
[4] 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. This form of explanation had dissuaded him in the past. He responded, “Oh come on”, jumped on top of her and penetrated her. At the time she was still in a severely injured state. Her eyes were closed, her face was numb, she had missing teeth, bruising all over her body and the cut to her neck “felt all crusty”.
[5] The trial judge reports that, during cross‒examination, it was repeatedly put to the complainer that, after the appellant had said “come on”, she had not said anything which would have suggested to the appellant that he did not know that she was consenting. Her responses to this varied from repeating that she had said “no”, that he may not have known that she was not consenting and, on re‒examination, that she could not know what he had been thinking and again that she had said “no”.
[6] 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, who had accompanied her, that she had been sexually assaulted.
[7] The friends spoke to the complainer being very emotional, withdrawn and displaying certain obvious injuries. At a subsequent medical examination she was tearful and shaken. The examination revealed bruising to her eyes, the absence of several teeth, multiple bruising of the thigh, and a 2.5cm long crusted and sloughing incised wound to the neck. Scenes of crime examination found 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. Although that blood was not examined, the complainer’s blood was found on a penile swab taken from the appellant.
Submissions
Appellant
[8] The appellant’s contention was 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. McKearney v HM Advocate 2004 JC 87, CJLS v HM Advocate 2009 JC 326 and Mackintosh v HM Advocate 2010 SCCR 168 were all authority for the proposition that the Crown required to prove lack of reasonable belief by corroborated evidence in “non‒forcible” rape cases.
[9] There was no corroboration of the complainer’s testimony that she had not consented to sex. The distress founded upon had occurred 3 days after the alleged rape. The complainer had not attributed her distress, as spoken to by her friends and others, to the rape, as distinct from the assault and the detention.
[10] The complainer’s initial position had been that she had said “no” because she was menstruating. The appellant had attempted to persuade her by saying, “Oh come on”. Thereafter he moved on top of the complainer and penetrated her. The complainer had said, and done, nothing to indicate a lack of consent after her initial response. This evidence was not sufficient to establish lack of reasonable belief or recklessness at the time of intercourse.
[11] Although there may be cases in which an...
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