Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 120

HCA/2016/000219/XC

Lord Menzies

Lord Bracadale

Lord Turnbull

OPINION OF THE COURT

delivered by LORD BRACADALE

in

APPEAL AGAINST CONVICTION

by

A L

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  McQuillan (sol adv); Gilfedder McInnes

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

2 November 2016

[1]        On 24 March 2016 after trial at the High Court in Edinburgh, the appellant was convicted of charges 2, 6, 7 and 8.  He was acquitted of the remaining charges 1, 3 and 5.

[2]        This appeal is against conviction on charges 2 and 6.  Charge 2 was a charge of rape of the partner of the appellant and charge 6 was a charge of lewd, indecent and libidinous practices and behaviour towards one of his daughters.  Charge 2 was libelled as having been committed on various occasions between 12 February 1989 and 30 June 2005.  The evidence in relation to charge 2 disclosed that soon after the appellant and his partner set up home together, a pattern developed whereby she would wake up to find the appellant penetrating her vagina with his penis or his fingers or with other objects.  Typically, on awakening the partner would tell him to stop.  He would apparently do so but later she would be wakened by his conduct being repeated.  This happened on a regular basis during the whole period of 16 years during which the couple were together. 

[3]        Charge 6 was libelled as having occurred on an occasion between 31 January 2001 and 30 January 2003 and involved the appellant on one occasion penetrating his young daughter’s vagina with his fingers whilst sharing a bath with her. 

[4]        The Note of Appeal advances two grounds of appeal.  The first ground related to the trial judge having directed the jury that they should only apply the rule of mutual corroboration between charges within a group of charges.  Because of that it was not open to the jury to apply the rule between charges belonging to different groups.   The second ground of appeal was that a jury properly directed could not have concluded that charges 2 and 6 were sufficiently similar in character and circumstances as to amount to a single course of criminal conduct. 

[5]        Before us Miss McQuillan argued the second ground first.  She submitted that the differences between the circumstances of each of the charges was such that it could not be said that each was part of a single course of criminal conduct.  The circumstances of charge 2 reflected repeated behaviour over many years in the context of a controlling dysfunctional relationship.  This was in contrast to the circumstances of charge 6 which involved a one‑off event in relation to a young child in the course of a normal event of bathing and no other complaint had been made in relation to other occasions of bathing.  The differences were such that it was not open to the jury to convict of these two charges on the basis of mutual corroboration.

[6]        The advocate depute submitted that it was open to the jury to apply the rule in relation to charges 2 and 6.  The offence in charge 6 was committed while the offence against the partner was still going on.  The fact that it related to only one incident was a factor for the jury to weigh.  The domestic nature of the relationships was particularly important: the evidence disclosed that both offences were committed in context of a controlling domestic situation. 

[7]        In relation to the question as to whether the rule of mutual corroboration could be applied between charges 2 and 6, the trial judge in his report to this court drew attention to a number of similarities which indicated a single course of criminal conduct:

“On an assessment of the evidence relating to charges 2 and 6, it would appear that there were apparent similarities such as to indicate a single course of criminal conduct, viz:  (1) in relation to timing, the two charges were coincident, the period of charge 6 being subsumed within that of charge 2;  (2) charge 2, concerning rape and charge 6 concerning lewd, indecent and libidinous practices involving digital penetration, both charges concerned penetrative sexual acts;  (3) in both charges the conduct concerned penetration of the vagina;  (4) in both charges the complainer was a family member;  (5) in both charges, at the relevant times, the appellant was alone with the complainer;  and (6) in both charges the conduct took place within the family home.”

[8]        We are satisfied that it was open to the jury to apply the rule of mutual corroboration between charges 2 and 6.  We consider that there is much force in the similarities identified by the trial judge in the passage quoted above.  To that we would add the consideration that both these offences were committed in the environment of a controlling, dysfunctional, domestic relationship.

[9]        In relation to the second ground of appeal Miss McQuillan submitted that the trial judge in his direction followed the approach of the Crown by taking certain charges together in groups for the purpose of mutual corroboration.  He had dealt with charges 2 and 5 in one group and charges 3 and 6 in another.  Charge 3 was a charge of lewd, indecent and libidinous practices and behaviour towards another daughter of the appellant, C and charge 5 was rape of that daughter.  It was submitted that the approach of the trial judge in relation to groups of charges was to specify how in the circumstances of this case the jury could apply mutual corroboration.  The trial judge had not indicated that the groups were simply illustrative of how to apply the rule.  In these circumstances there was no basis on which the jury could convict of charges 2 and 6.  The only explanation could be that the jury had not followed the directions.

[10]      The advocate depute submitted that the jury must have accepted the general direction in relation to mutual corroboration.  The jury were presumed to follow directions and must have followed the general direction.

[11]      In relation to the way in which he had charged the jury, the trial judge explained that the approach in relation to groups of charges was not intended to be prescriptive: 

“This treatment of the charges was intended as the simplest exposition of how the principle could operate.  It was not intended to be prescriptive and was not expressed as such.

The treatment of the specific charges in that way, was preceded in my charge to the jury by a passage which explained the general theory and application of the principle (transcript of charge, 23 March 2016, at page 49, line 13 – page 53, line 6).  Against that background, the jury were not constrained to apply the principle only in the manner I had set out by way of possible application.  It was open to the jury to apply the principle as they thought fit, subject to them being satisfied that all the necessary requirements were met.  In that regard, I had set out what the relevant requirements were (transcript of charge, 23 March 2016, at page 50, line 21 – page 51, line 6, and at page 52, line 14 – page 53, line 6).”

[12]      The directions in relation to mutual corroboration are found between pages 50 and 59 of the trial judge’s charge.  After giving general directions in relation to mutual corroboration, the trial judge turned to the case at page 52, he said: 

“So in this case if you believe the complainer, that’s to say the woman concerned in any particular charge concerning her, then you could find corroboration from another woman’s evidence which you find to be credible and reliable in relation to another charge which concerned that other woman.  If you do believe the other woman you then have to consider if by reason of the character, circumstances and the time of each charge, the crimes are so closely linked that you can infer that the person accused was pursuing a single course of crime”. 

[13]      In our opinion it is important to note that that general direction was given before the directions in relation to groups of charges.  We are satisfied that the approach to the trial judge in relation to groups of charges was not prescriptive.  It was open to the jury if they rejected the evidence of C, to consider in the light of the general directions whether they could find mutual corroboration between charges 2 and 6. 

[14]      In the result the appeal must be refused.