HMA v Allan Ferguson
Mr Ferguson, who claimed that evidence of the complainer’s distress in a rape case was too remote to corroborate her account of lack of consent, has had an appeal against his conviction rejected. The appellant claimed that this was due to the fact that the distress of the complainer was not shown until two days after the alleged rape, with no distress before this to corroborate. However the appeal court ruled that this would still provide corroboration.
The appellant was convicted in Glasgow’s High Court in March 2018 of raping a 22 year old woman. The complainer’s evidence in the case at trial was that she was raped in the early hours on a Saturday evening in November 2016 and she thereafter fell asleep and then left the appellants house at 7am and did not show distress to the taxi driver at this time, nor her parents or her boyfriend later in that day as she was in shock but went to her bedroom and cried but wanted to act normal. The distress was shown to a friend on the telephone on the Monday morning where she was described as hysterical while at work.
After the crowns evidence was led the appellant’s legal team entered a no case to answer submission. However, this was not accepted by the trial judge as although he accepted the distress was 30 hours after the incident, he believed that the taxi driver’s evidence that she was withdrawn and would not answer him was important.
However the appeal was lodged on the basis that there was no corroboration as the distress was not shown in the intervening period to anyone before the phone call and in fact the complainer had engaged in normal activity such as having sex with her boyfriend during this timeframe.
However the appeal was refused on this basis and the appeal judges did not agree with this argument. 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.” He continued that this was a question for the jury to accept which clearly the complainer’s evidence was accepted by them.