APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Dorrian Lord Bracadale	[2013] HCJAC 91 XC426/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   the appeal by   HER MAJESTY'S ADVOCATE   Appellant;   against   JAMES DAVID HUTCHISON   Respondent:   _____________

Appellant: Ferguson QC AD; the Crown Agent

Respondent: Allan QC; D & J Dunlop, Ayr

 

15 July 2013

[1] On 10 July 2013, at the trial of the respondent on charges of: (1) assault; (2) rape (contrary to section 1 of the Sexual Offences (Scotland) Act 2009); (3) rape (contrary to the same section); and (4) abduction, the trial judge acquitted the respondent on charges 2, 3 and 4 by sustaining a submission of no case to answer in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. The Crown have appealed against that acquittal under, and in terms of, section 107A of the 1995 Act. The court is satisfied that the trial judge did err in his decision on the sufficiency of evidence in respect of the charges. The court will accordingly allow the appeal, quash the acquittal and direct that the trial proceed on the whole indictment.

[2] In relation to charge 4, the complainer testified that she had been in a relationship with the respondent for a year before separating and going to a women's refuge in Glasgow. On Wednesday 16 January 2013 the complainer went to the respondent's flat in Ayr at his invitation and, after the consumption of vodka, had consensual intercourse with him. The complainer then spoke to the events which are libelled in each of the charges. These commence chronologically with the abduction in charge 4 (from 16 to 20 January) and move on to the assault to injury in charge 1 through to the rapes in charges 2 and 3. Although charges 1 to 3 are all dated 17 January, the court understands that the complainer's evidence was that the rapes occurred on the day after the assault.

[3] In relation to the corroboration of the complainer's testimony, the court first looks at the abduction in terms of charge 4. The court considers that her evidence was adequately corroborated by a series of no less than ten factors spoken to either by her friend, namely CC, or the police. The first is the content of a text message, which was sent by the complainer whilst she said she was allegedly being detained. This text to CC was as follows: "No, he has battered me really badly and I can't get away". Occurring, as it did, during the course of the alleged detention, the sending of that text and its content formed part of the res gestae and, having been spoken to by an independent witness, was capable of featuring as corroboration of the detention itself. Secondly, there was a rule in the women's refuge to the effect that if a resident was absent for more than three days, then she would lose her place. The complainer herself was not asked about this and thus there is no evidence, of a direct nature, as to whether or not she was aware of the rule. Nevertheless, CC spoke to its existence and a jury would be entitled to take it into account in determining the question of whether the complainer's continued absence, over a period of four days, was indicative of lack of consent to remaining in the respondent's flat. Third, the buzzer on the entry phone of the respondent's flat was deliberately kept on silent mode, meaning that a person in the flat would not know if someone was at the door. Although there may be other reasons why a person might wish to have the buzzer on silent, one obvious reason is that it would prevent a person, who was alone and locked in the flat, from calling upon assistance of someone attempting to contact those within. Fourth, when the police were summoned, effectively by CC, there was a marked reluctance on the part of the respondent to open the door. It took considerable time for the police to secure entry after having checked with neighbours and repeatedly knocked at the door. Fifth, when the door was opened, what the respondent did was to step outside and pull the door behind him. Although there are again explanations of an innocent nature as to why that might have been done, one is that the respondent was anxious for the police not to see the state of the complainer within. That state forms the sixth adminicle, which was to the effect that the complainer was in an unkempt and dishevelled state. Her mascara had run as if she had been crying. Seventh, when the police attempted to ask the complainer questions, the respondent interrupted her; apparently attempting to prevent her from speaking. Eighth, at this time also, the complainer made gestures to the police, which indicated a need to communicate with them in private. Ninth, there was no female clothing found in the flat by the police, thus indicating that the complainer had been within this flat for over three days without any form of change of clothing whatsoever. Tenth, and finally, at the interview of the respondent, he accepted that the complainer had been in his flat throughout the entire period, other than one visit to the shops with him. He also accepted that he had, on at least one occasion, locked her inside. All of these adminicles, especially when taken together, provide clear corroboration of the complainer's evidence that she had been detained in the flat against her will.

[4] So far as charges 2 and 3 are concerned, it is of significance at the outset to note that the libel does not suggest that the complainer agreed to have intercourse either because of the assault in charge 1 or the detention in charge 4 (see Sexual Offences (Scotland) Act 2009, section 13(2)(b) and (c)). That was not the complainer's position in evidence, as the court understands it. The complainer states that she did not consent to intercourse. In so far as corroboration is concerned, there is direct corroboration of lack of consent in respect of charge 3, by virtue of the discovery of an anal fissure, which would have caused acute pain. Although there may be other explanations for the cause of this injury, one is that, as the complainer maintains, she was assaulted anally by the use of a whip handle. This injury is capable of permitting an inference that the complainer was assaulted as libelled and that the admitted intercourse was carried out without her consent. So far as charge 2 is concerned, and indeed charge 3, what the complainer did say is that, against the background of an assault of the nature libelled in charge 1, it would be unlikely that any person would have consented to intercourse with the person, who had carried out the assault, on the very next day. The jury would be entitled to take that view also, if they found charge 1 proved. Furthermore, it is part of the background that, at the time when the intercourse took place, the complainer's position was that she was detained by force in the flat. The court considers that the occurrence of the assault and the detention, if proved, are such that the jury would be entitled to infer that the complainer did not consent to the episodes of intercourse libelled in charges 2 and 3 and that, accordingly, there is adequate corroboration of the rapes themselves, should the material evidence be accepted and the relevant inferences drawn.