Appellant: Moggach; Capital Defence Lawyers

Respondent: Cherry, QC AD; Crown Agent

5 March 2013
[1] The accused in this case was convicted after trial of three charges of lewd and libidinous behaviour and a fourth charge of indecent assault. The complainers were brothers. Of the charges of lewd and libidinous behaviour, charge 1 related to brother A, the elder brother, and charge 2 to the younger brother B. Charge 3 related to both brothers. Charge 4 was a charge of indecent assault, also on both brothers. These last two charges related to allegations of inducing indecent conduct between the brothers during a period when the elder brother was aged seven to just under nine; and the younger brother was aged five to seven. Each brother spoke individually to the incidents in charges 1 and 2. Only the elder brother spoke to the incidents which allegedly involved both brothers. The younger brother remembered both boys being told to take their clothes off and being asked what they would like to do to each other, but he did not recall any indecent activity occurring. The Crown relied for corroboration on the doctrine of mutual corroboration. Identification was not an issue. It was not argued that, even if the jury found both complainers credible and reliable, it was not open to them to apply the doctrine. The position of the accused, expressed at interview with the police, was that nothing had happened, and the focus in the trial would seem to have been on the questions of the reliability and credibility of the witnesses.

[2] In her charge the sheriff, having explained the burden and standard of proof, also explained that some crimes are committed in a clandestine way, making them difficult to detect or prove. Accordingly, she explained:

"Our law, our rules about corroboration, proof, recognise this, and our rules recognise it in this way: where someone is accused of two or more charges alleging similar acts which are so connected in time, character and circumstances as to justify an inference that they are instances of a course of similar conduct and conduct pursued by that person systematically, then the evidence of a single witness in relation to one charge may be corroborated by the evidence of a single witness in relation to another charge"

[3] She went on to refer to this as a "protective doctrine" and stated that it "relaxes the usual very, very strict rules of corroboration". She further explained the rule as follows:

"... essentially, what it means is this: if you are satisfied that the crimes charged are so closely linked by (a) their character; (b) the circumstances of their commission; and (c) time, that they mesh together to demonstrate a systematic course of conduct, then you can use the evidence of one brother about what happened to him as corroboration of the evidence of the other brother about what happened to him. Put simply, you can look at the charges collectively and decide whether a pattern of criminal behaviour is established."

[4] The sheriff then addressed general matters of credibility and reliability. After telling the jury that the evidence which mattered was evidence which they found to be "credible, honestly given, and the evidence you find reliable", she emphasised that "any evidence that you do not believe, or any evidence you consider to be unreliable, you should simply reject. And once you have rejected a piece of evidence because either you don't believe it, or you find you can't rely upon it, you should then ignore it and make no further decisions on it"

[5] Dealing with corroboration, the sheriff dealt first with the two charges which concerned each boy individually. In essence she pointed out (a) that the evidence on charge one came from the elder brother; (b) that the evidence on charge 2came from the younger brother; and (c) that if they did not accept the evidence of the elder brother it could not corroborate the evidence of the younger one; and vice versa. She dealt separately with the credibility and reliability of each brother in respect of the charge to which each spoke. She explained that in charge 3 the evidence came from the elder brother, but could be corroborated by the younger brother's evidence about charge 2; and that the same doctrine of mutual corroboration applied to the evidence given by the elder brother in relation to charge 4.

Ground of appeal
[6] The sole ground of appeal against conviction related to the sheriff's directions on mutual corroboration, specifically that she misdirected the jury (a) by not telling them what corroboration meant, in general; and (b) by suggesting that the doctrine of mutual corroboration relaxed the normal strict rules of corroboration.

[7] In support of that ground of appeal it was submitted that the jury would not understand the directions about the way in which the doctrine could supply corroboration if they had not had the concept of corroboration explained first in a general way. Moreover, the suggestion that the doctrine "relaxed" the rule requiring corroboration was apt to confuse, especially if the jurors had some preconceived notion of what was meant by corroboration. Given that the issue of corroboration was at the heart of the case, it could be said that these misdirections had resulted in a miscarriage of justice.

[8] In response the advocate depute submitted:

(i) the sheriff correctly approached this case as a classic application of Moorov, and gave appropriate directions thereanent

(ii) although it may be common to give some direction on what is meant in general by corroboration, such a direction is not necessary where the only issue is the application of Moorov

(iii) the terms of the sheriff's actual directions had not been criticised, save for the remark relating to "relaxing" the rule

(iv) even an absence of any direction on corroboration is not always fatal, the question being whether the charge adequately addressed the issues in dispute

(v) the directions focused on the essential points in the case, namely the application of the doctrine of mutual corroboration, and the directions in that regard were sufficient

In advancing these submissions further, the advocate depute accepted that this was not the sort of case to which her fourth proposition applied, and that some direction on corroboration was indeed required. However, she maintained that all that was required was an accurate and adequate direction of the application of the doctrine of mutual corroboration to the circumstances of the case. The sheriff had correctly directed on both onus and standard of proof. She made it clear that the evidence of each brother required to be corroborated, that the corroboration could only come from the evidence of the other brother, and she explained fully the importance of similarity of time, character and circumstance. The doctrine of mutual corroboration is often referred to as an "exception" to the general rules of corroboration, so the sheriff's description of it as "relaxing" the rules should be seen in that context. Looking at the charge as a whole, there was no risk of confusion.

[9] Reference was made in argument to Moorov v HMA 1930 JC 68; Wilson v HMA 1976 SCCR (Supp) 126; and Nelson v HMA 2002 SCCR 787.

Discussion
[10] It is well established that in giving directions on the doctrine of mutual corroboration the trial judge is not required to deliver an academic thesis: all that is required is to give a concise definition of the principle and some general guidance as to how it might be applied by the jury to the evidence in the case. Perhaps it would have been preferable for the sheriff to have given the jury a succinct explanation of what is meant by corroboration, namely evidence from two independent sources implicating the accused, before going on to explain the doctrine of mutual corroboration, but the fact that she did not do so does not, in the circumstances of a case where the only issue was the application of that doctrine to the evidence of two witnesses, amount to a misdirection. The charge has to be looked at as a whole, the critical questions being will the jury understand, from these directions, (i) that they cannot convict on the evidence only of the individual witness to each charge? and (ii) that they can only do so if they also accept the evidence of the other witness, and are satisfied as to the connection between the events? In a case as simple as this, if one asks the question would the jury be better able to decide this case if they had been given directions on what is meant in general terms by corroboration then the answer is no. Such a direction would not equip them any better for their task than the directions which the sheriff gave. The context in which the sheriff repeatedly uses the word "corroborate" makes it obvious that it is being used in the sense of "lend support to" or "confirm". It would have been clear to the jury that the evidence of each brother required to be corroborated, and that such corroboration could only come from the evidence of the other brother. The jury would have been left in no doubt that if they rejected any piece of evidence they would have to set it aside, and could not use it for any purpose. The sheriff very clearly told them that if they rejected the evidence of either brother it could not be used for corroboration. The important points about nexus and credibility were both made in some detail, and in our view there is no room for confusion.

[11] As to the direction that the doctrine "relaxes the usual very, very strict rules of corroboration" we accept that this was an unfortunate phrase. Whether the doctrine may be seen as an exception to the usual methods by which corroboration is established, or is a special form of corroboration, it does not relax or diminish in any way the fundamental point that corroboration is an essential requirement for proof of a criminal charge. However, although we deprecate the use of the word "relaxes", as we have already observed, we do not think that reading the charge as a whole, there can have been any doubt that corroboration of the evidence of each brother was an essential prerequisite to conviction, and that it could be found only in the evidence of the other brother.

[12] In the circumstances we will refuse the appeal against conviction. The outstanding appeal against sentence will be continued to a date afterwards to be fixed.