Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 117

HCA/2015/000570/XC

Lady Paton

Lord Bracadale

Lord Turnbull

OPINION OF THE COURT

delivered by LORD TURNBULL

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

DL

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Forbes;  John Pryde & Co

Respondent:  Prentice QC (sol adv), AD;  Crown Agent

1 December 2015

[1]        The appellant DL, aged 27, was convicted after trial in the High Court at Glasgow of two charges involving contraventions of the Sexual Offences (Scotland) Act 2009 (“the Act.”). The two complainers were twins aged 14 or 15 years old at the time of the offences and the appellant was the partner of their aunt.  The charges of which the appellant was convicted were numbered 1 and 3 on the indictment and he has now appealed against conviction on charge 3 based upon the argument that no reasonable jury, properly directed, could have returned a guilty verdict on that charge.

The charges and evidence

[2]        The first charge concerned the complainer KM.  It narrated that on various occasions between 1 March 2013 and 31 August 2013 at address A in Glasgow and address B in Glasgow the appellant repeatedly kissed her on her mouth, cuddled her, exposed his penis to her and compelled her to handle his penis contrary to section 3 of the Act

[3]        The third charge concerned the complainer FM.  It narrated that on an occasion between 1 May 2013 and 30 June 2013 at address B in Glasgow the appellant placed his hands inside her lower clothing and attempted to handle her genital area contrary to section 3 of the Act.

[4]        The trial judge’s report sets out a summary of the evidence concerning the charges.

[5]        From a reading of that report it is clear that the first charge concerned two separate incidents. The complainer’s evidence was that the first incident took place at the home of her aunt at address A in Glasgow, when she and the appellant were sitting together on the sofa in the lounge.  On this occasion the appellant was said to have kissed the complainer, cuddled her and put his hand on her knee (although no such averment appeared in the charge).  No one else observed this incident.

[6]        The second incident concerning this complainer was said to have taken place at the home of her grandmother at address B in Glasgow.  Her evidence was that on this occasion the appellant approached her in the kitchen, took hold of her hand and put it down the front of his shorts and onto his erect penis. Whilst holding her hand he was then said to have moved it up and down his penis.  On this occasion others were present in the house and the complainer’s evidence was that her sister FM came into the kitchen whilst the event was taking place.

[7]        The third charge concerned the complainer FM.  She gave evidence that whilst in bed at her grandmother’s house at address B in Glasgow the appellant came into her bedroom, lay down beside her on the bed and put his hand down her pyjama bottoms trying to touch her vagina.  She also testified to having seen the incident described by her sister which took place in the kitchen at address B.

[8]        At the conclusion of the evidence for the Crown the advocate depute deleted the words “on her mouth,” and the words “expose your penis to her,” which appeared in charge 1.

The verdicts

[9]        After trial the jury returned a verdict of guilty on charge 1 subject to deletion of the events which the first complainer described happening in her aunt’s house at address A in Glasgow.  A verdict of guilty as libelled in respect of charge 3 was returned.  A verdict of not proven was returned on the second charge on the indictment, which also concerned the complainer KM.

The ground of appeal

[10]      It was common ground in this appeal that sufficient evidence for conviction on charge 3 could only arise out of the application of the doctrine of mutual corroboration. The contention for the appellant was, that in light of the directions which they were given, the verdict returned on charge 1 indicated that the jury elected not to apply the doctrine of mutual corroboration and as a consequence there was insufficient evidence to permit them to return a verdict of guilty on charge 3.  In these circumstances the verdict was one which no reasonable jury properly directed could return and accordingly the ground of appeal provided for by section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 had been made out.

[11]      At page 8 of his report the trial judge explains that he directed the jury that they could accept the evidence of a witness in whole or in part.  He then sets out a possible route through the evidence upon which the jury might have returned the verdict which they did whilst still applying the doctrine of mutual corroboration as between each charge.

[12]      In short, he observes that the jury may have accepted the complainer KM’s account of what happened to her at address B but rejected the evidence of her sister FM in saying that she observed what happened.  The trial judge points out that this was the thrust of the cross examination of FM.

[13]      As we would understand him, the trial judge observes that the jury might well have accepted the rest of the complainer FM’s account of what had happened to her, and, in these circumstances, the verdicts returned would be consistent with the application of the doctrine of mutual corroboration as between the remainder of charge 1 and charge 3.

[14]      The trial judge offers no view though as to what might have prompted the jury to make the deletions in the first charge in relation to the incident at address A if they were finding corroboration for each charge through the application of the doctrine of mutual corroboration.

The trial judge’s directions
[15]      In the course of his charge the trial judge explained the concept of the doctrine of mutual corroboration and gave directions on the circumstances in which the doctrine could be applied. He made it plain that the question of whether the doctrine should be applied by the jury in the circumstances of the evidence led was something which was in dispute between the crown and the defence. The trial judge also carefully explained to the jury the consequence for their approach to each charge of their decision as to whether or not to apply the doctrine.  No criticism of these directions was advanced in this appeal.

[16]      At pages 25 and 26 of the transcript of his charge the trial judge explained that corroboration for charge 1 could be found in the evidence given by the complainer FM in relation to charge 3 on the basis of the rule of mutual corroboration.  He also explained that even if the jury did not accept FM in relation to charge 3, it was still possible to rely on her evidence of seeing the assault on her sister at address B and therefore to return a verdict of guilty in respect of charge 1 on its own.  At pages 26 and 27 he reminded the jury that if they chose not to apply the doctrine then charges 2 and 3 could not prove.

The argument for the appellant

[17]      The argument for the appellant arises out of certain further directions which the trial judge gave to the jury after he had invited them to retire.  Having listened to submissions by the trial counsel for the appellant, he agreed with the proposition that if charge 1 was to stand on its own, and that the evidence of KM was therefore corroborated only by the eyewitness testimony of her sister FM, then reference to the episode at address A would fall to be deleted, as FM had only seen the episode at address B.

[18]      Having invited the jury to return to court the trial judge then gave further directions, as can be seen from page 41 to 44 of the transcript of his charge.  It is these directions which Mr Forbes focussed upon on behalf of the appellant in advancing his submission.

[19]      The relevant directions are found at page 41 to 43 of the transcript. They include the following commencing at page 41 line 20:

 “I also mentioned corroboration in relation to charge 1, and you   remember I explained that it could really be corroborated in two ways.             One was by applying the rule of mutual corroboration. So if you apply that rule then you can corroborate the whole of that charge. However, I also said there was another route to corroborating it, and that was, you could find corroboration by that second route, by the eye witness evidence of F”

[20]      And at page 42 commencing at line 19:

“So what that means is that, let’s suppose you reject the mutual corroboration route, but you accept that F saw what she says she            saw. That evidence of F would be enough to corroborate the second incident, that’s the penis handling but not the first, the kissing and cuddling.  So if you were going down that route of corroborating it by the eye witness evidence and not the mutual corroboration rule, you would have to delete from that charge all reference to the first incident, that’s the kissing and cuddling.”

[21]      This is, of course, precisely the deletion which the jury decided upon in returning their verdict on charge 1.  Mr Forbes also drew our attention to the exchange which took place between the trial judge and the forewoman of the jury in clarifying the extent of the deletions which were to be made. In these circumstances Mr Forbes advanced the submission that the correct interpretation of the jury’s verdict was that they did not elect to apply the doctrine of mutual corroboration in relation to charge 1.  In the written case and argument and in oral submissions before us it was contended that:

            “as a consequence the doctrine was not available for use in isolation             quoad charge 3”.

Submissions for the Crown
[22]      The advocate depute submitted that any attempt to identify the basis upon which the verdicts had been returned by the jury would of necessity involve speculation.  He submitted, as the trial judge had observed, that the verdict was consistent with the jury finding each charge established on the basis of the doctrine of mutual corroboration. The advocate depute also submitted that it would have been open to the jury to decide that charge 1 was established to the extent which they did on the basis of the evidence of KM as supported by the eyewitness testimony of her sister. The jury could then have considered whether the requirements of the doctrine of mutual corroboration were made out as between the evidence given by the complainer FM in relation to charge 3 and the evidence of her sister in describing the appellant’s conduct towards her at address B as described in charge 1.

[23]      The submission for the Crown was therefore that since there were two routes which the jury could legitimately have followed on the evidence available to them, and in light of the directions which they were given, in order to return the verdicts which they did, it could not be said that the test in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 had been met.

Analysis

[24]      We acknowledge that any attempt to identify the precise process engaged in by a jury in determining its verdict is likely to involve speculation.

[25]      Nevertheless, the excerpt from page 42 of the trial judge’s charge which we have quoted above, as taken along with the content of the clarification which the trial judge engaged in, lends support to the inference contended for by counsel for the appellant and we are content to test the argument advanced on that basis. This raises the question of why a conclusion that the jury did not resort to the doctrine of mutual corroboration in order to be satisfied that a conviction should be returned on charge 1 should deny them the opportunity of considering the application of the doctrine of mutual corroboration when considering their verdict on charge 3.

[26]      No authority or principle in support of this contention was advanced by Mr Forbes. He simply relied upon the bald contention contained in his written case and argument as quoted above.

[27]      It is in fact clear from what the trial judge said at page 21 and 22 of the transcript of his charge that the crown invited the jury, in the first instance, to return a verdict of guilty on charge 1 based upon the testimony of the complainer KM as corroborated by the eye witness evidence of the second complainer FM.

[28]      He goes on to explain that in any event, or, as we would see it, as a secondary approach the crown relied on the doctrine of mutual corroboration for corroboration of KM’s testimony. It therefore seems to us that in advancing his principal approach at trial the advocate depute must have been expecting the jury to find corroboration for charge 3 by the application of the doctrine of mutual corroboration, without relying on it for proof of charge 1.  In other words, at trial the jury must have been invited to follow the very process which counsel for the appellant argues was impermissible.  Despite this Mr Forbes assured us he had no criticism of the directions which the trial judge gave.

[29]      It seems to us that in addressing charge 1, and bearing in mind the defence contention that the circumstances disclosed in evidence did not warrant the application of the doctrine of mutual corroboration, the jury would have been perfectly entitled to follow the approach suggested by the trial advocate depute and to ask themselves whether the evidence of the complainer KM was accepted and, if so, to what extent corroboration was available in the eyewitness testimony of FM.  An approach of this sort would have entitled the jury to return the verdict which they did on charge 1 without considering the question of the doctrine of mutual corroboration.

[30]      However, when finding themselves considering the evidence in relation to charge 3, the jury were well aware, from the clear directions which they were given, that a conviction could only be returned on this charge if they were satisfied that it was appropriate to apply the doctrine of mutual corroboration as between the evidence of KM and FM.

[31]      We can see no basis in law or logic for the contention that if the jury had not required to address this issue in relation to charge 1 they were prevented from considering its application at a later or different stage.  Accordingly, even on the assumption that counsel for the appellant was correct in his submission as to how the verdict returned on charge 1 ought to be interpreted, we are perfectly satisfied that there remained a legitimate method by which the jury could conclude that the crown had established its case on charge 3 in addition. In these circumstances, it cannot be said that no reasonable jury, properly directed could have returned these verdicts.

Decision

[32]      For the reasons given above the appeal against conviction is refused. The appellant was also given leave to appeal the sentence imposed in the event of the conviction on charge 3 being quashed. That does not arise and the appeal against sentence is also refused.