Ferguson v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Menzies,Lord Turnbull |
| Judgment Date | 12 December 2018 |
| Neutral Citation | [2019] HCJAC 1 |
| Date | 12 December 2018 |
| Court | High Court of Justiciary |
| Docket Number | No 7 |
[2019] HCJAC 1
Lord Justice-General (Carloway), Lord Menzies and Lord Turnbull
AJE v HM Advocate 2002 JC 215; 2002 SLT 715; 2002 SCCR 341
Drummond v HM Advocate [2015] HCJAC 30; 2015 SCCR 180; 2015 SCL 533; 2015 GWD 10-176
Fox v HM Advocate 1998 JC 94; 1998 SLT 335; 1998 SCCR 115
Geddes v HM Advocate [2015] HCJAC 10; 2015 JC 229; 2015 SCCR 139; 2015 SCL 342; 2015 GWD 7-138
Graham v HM Advocate [2017] HCJAC 71; 2017 SCCR 497; 2017 SCL 963
Lennie v HM Advocate [2014] HCJAC 103 2014 SCL 848; 2014 GWD 31-605
McCrann v HM Advocate 2003 SCCR 722; 2003 GWD 40-1075
Moore v HM Advocate 1990 JC 371; 1991 SLT 278; 1990 SCCR 586
Paterson v HM Advocate 2000 SLT 833; 1999 SCCR 750
RWP v HM Advocate 2005 SCCR 764
Wilkinson v HM Advocate [2018] HCJAC 39; 2018 SCCR 248; 2018 GWD 25-320
Wilson v HM Advocate [2017] HCJAC 3; 2017 JC 135; 2017 SCL 237; 2017 GWD 3-32
Yates v HM Advocate 1977 SLT (Notes) 42
Justiciary — Evidence — Sufficiency — Corroboration — Rape — Evidence of distress and statements made after a significant interval following alleged rape — Whether distress could corroborate lack of consent
Allan Ferguson was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling a charge of rape contrary to sec 1 of the Sexual Offences (Scotland) Act 2009 (asp 9). On 29 March 2018, following a trial at the High Court in Glasgow, he was convicted of the charge. On 3 May 2018, he was sentenced to four years' imprisonment. The appellant thereafter appealed against conviction to their Lordships in the High Court of Justiciary.
The appellant was charged with rape. The complainer's account was that she had been raped by the appellant at his home at about 3.00 am on the Sunday morning. The complainer left by taxi later that morning. The taxi driver spoke to the complainer brushing the appellant to one side when getting the taxi, commenting to the driver that she should not have been at that house, but ignoring the driver's attempts at further conversation. The complainer saw her parents on the Sunday afternoon, and spent the evening with her boyfriend, with whom she had sex. She did not tell her parents or her boyfriend of the rape nor did she exhibit any distress. She spoke of being in shock during that time. The complainer telephoned a friend on the Monday, not earlier than midday. The friend spoke of the complainer's distress during that call when she told her that she had been raped. The appellant said during police interview that he had gone to sleep in the same bed as the complainer, that she had woken up and that she had initiated sex. The jury convicted the appellant. The appellant appealed.
Held that: (1) the time-lapse between the alleged rape and the observable distress was not decisive, what mattered was whether the shocked condition or complainer's distress was caused by the rape (para 14); (2) in light of the complainer's explanation of being in shock, it was open to the jury to hold that the distress during the telephone call was attributable to the rape and was available as corroboration of lack of consent (para 18); and appeal refused.
Observed that great care ought to be taken before excluding the occurrence of distress after an interval of time as constituting corroboration (para 17).
Moore v HM Advocate 1990 JC 371 and McCrann v HM Advocate2003 SCCR 722discussed and Wilson v HM Advocate2017 JC 135applied.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), Lord Menzies and Lord Turnbull, for a hearing, on 12 December 2018.
Eo die, the court refused the appeal for the reasons set forth in the opinion of the Court which was subsequently delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[1] This case concerns corroboration of lack of consent in a rape case where the distress relied upon is observed after a significant interval.
[2] On 29 March 2018, at the High Court in Glasgow, the appellant was convicted of a charge which read that:
‘(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 [(asp 9)].’
On 3 May 2018, he was sentenced to four years' imprisonment.
[3] On Saturday 12 November 2016, the complainer, who was a nurse aged 22 years, and a female friend had been out drinking. By the early hours of the Sunday morning, they were both ‘quite drunk’. At about 2.00 am 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 mixed martial arts on 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 ten or eleven 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...
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Reference By Hma Against Clb
...no strict time within which it had to be exhibited. What mattered was that the distress was caused by the rape (Ferguson 92 v HM Advocate 2019 JC 53). [164] There were currently two uses to which a statement made by a complainer may properly be put. When that statement was given in a state ......
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Appeal By Stated Case Against Conviction By Bhupinder Singh Against Procurator Fiscal, Kilmarnock
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Sean Robin James Hogg Against Hma
...the jury are satisfied that the distress was caused by the offence.” (Wilson, Lord Carloway, para 20; and see Ferguson v HM Advocate 2019 JC 53, para 14) [30] Whilst it is for the jury to assess the evidence and determine whether the distress was genuine and had been caused by the alleged r......