Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 64

HCA/2016/36/XC

Lord Justice General

Lady Paton

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTE OF APPEAL AGAINST CONVICTION

by

ANGUS McASKILL

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Allan QC, Dow; Paterson Bell (for Tod & Mitchell, Paisley)

Respondent: Farquharson AD; the Crown Agent

3 August 2016

Introduction
[1]        On 11 December 2015, at the High Court in Glasgow, the appellant was convicted of nine out of seventeen charges (cc 1, 2, 4, 5, 6, 9, 10, 11 and 13).  The first five related to his partner JC, whom he had met in 1979 when they were both in their late teens.  The second group related to LMcD, whom the appellant had married in 1996 when she was aged 17.  The trial judge acquitted the appellant of two further charges on no case to answer submissions; one involving a baby-sitter (c 8) and the other the abduction of LMcD and her son (c 12).  The Crown withdrew one charge of assault and attempted rape of JC (c 7).  The jury acquitted him of a further assault and rape of JC (c 3).  The appellant was acquitted of four further charges (14-17) relating to another partner, KR, whom he had met in 2000 when she was 21.  One charge of breach of the peace (c 17) was withdrawn by the Crown.  Another of abduction in a car (c 16) was the subject of a successful no case to answer submission.  The jury acquitted the appellant on the remaining two of, respectively, assault and indecent assault (cc 14 and 15). 

[2]        The trial judge imposed a sentence of 3 years in respect of the assault convictions (cc 1, 6 and 13) and a consecutive sentence of 5 years in cumulo in respect of the sexual offences (cc 2, 4, 5, 9, 10 and 11). 

[3]        The appeal raises a number of different matters.  The first and second grounds relate to evidence which was given by the complainer KR about an offence not libelled; the third to seventh grounds all relate either to sufficiency of evidence in the context of mutual corroboration or the directions given in that regard; and the final ground is a contention that the trial judge misdirected the jury in respect of a defence witness. 

The evidence
Charges 1, 2, 4, 5 and 6 (JC)
[4]        Charge 1 libelled repeated physical assaults over the years 1981 to 1992 at various addresses, all involving the appellant’s partner JC.  The evidence was much more restricted in terms of the dates of the assaults.  All but one occurred in 1981.  The exception was an incident immediately before the events libelled in charge 6 when, after an argument, the appellant threatened to burn down the complainer’s house.  This was in 1992.  After the complainer became pregnant in 1981, the appellant became resentful.  Whilst walking in the public street towards the complainer’s home, the appellant suddenly attacked her, pulling her hair, pushing her to the ground and punching her back.  On a later occasion in 1981, he attacked her in their home following upon a complaint about the quality of his breakfast.  This involved him seizing the complainer’s hair and pushing her face fully submerged into a sink, repeatedly.  The libel included the danger of her life.  The complainer gave other examples of being abused in the street by the appellant, with him pushing and pulling her and calling her names.  Thereafter, although the appellant continued to be obsessively jealous of the complainer, no more physical assaults took place until the incident preceding charge 6. 

[5]        Charges 2, 4 and 5 all related to sexual offences, ranging from indecent assault to rape.  The libel in respect of the rapes (c 2) dated from 1982 to 1995 and involved, principally, the appellant having sexual intercourse with the complainer initially whilst she was asleep and continuing upon her waking.  The libel of indecent assaults (c 4) was from 1989 to 1993 and was in the same general context of behaviour starting whilst the complainer was asleep.  One charge (c 5) was an assault with intent to rape during 1990 to 1993.  This incident occurred after the appellant had gone looking for the complainer, who had gone out with her sister and some girl friends.  When she returned home with the appellant, he had accused her of having sexual intercourse with another person and then forced himself on top of her.  She was able to fight him off. 

[6]        The final charge (c 6) occurred in 1992 when the complainer and the appellant had had an argument about the amount of time the complainer was spending at her parents’ home, whilst her father was dying.  She told the appellant to leave.  The complainer had taken the threats to burn down her house (supra) seriously and had set off, on foot, to her parents’ home.  En route, the appellant drove past, shouting abuse at her and threatening to kill her.  He was laughing like a maniac.  He turned the car and drove towards the complainer and the two youngest children, forcing her to take the buggy and the children into a close, whilst he drove onto the pavement, before suddenly turning and driving away.

[7]        The appellant and the complainer separated finally in the mid-1990s.  Although over the years the complainer had told her sisters about what had been going on, it was only in 2014 that she took steps to report the abuse to the police. 

Charges 9, 10, 11 and 13 (LMcD)
[8]        The appellant and his wife LMcD were in a relationship for only about 18 months.  The relationship started to go wrong fairly quickly as a result of the appellant’s jealousy.  He objected to the complainer going out and at times locked her in the house.  Charge 9 libelled various rapes occurring between May and December 1997.  These involved the appellant having intercourse with the complainer whilst she was still asleep and continuing to do so after she had woken up and objected.  Charge 10 involved indecent assaults in similar circumstances and charge 11 libelled the penetration of her vagina with various household objects.  Charge 13 was an incident which occurred after the appellant had accused the complainer of having a relationship with her brother-in-law.  On their way home in a car, he had threatened to drive off the road over a bridge and kill the complainer’s young son.  His driving was erratic.  The complainer was crying and trying to pacify her son, who was screaming and vomiting.  Soon after this incident, the relationship came to an end. 

Charges 14 to 17 (KR)
[9]        As already narrated, the appellant was acquitted one way or another of charges involving KR.  The appellant’s relationship with her, which began in about 2000, had also started reasonably well, but he had become jealous and possessive.  According to the complainer, after a few months he began hitting her.  One incident involved the appellant dragging her by the arm into his lorry.  In the course of exploring this incident, the advocate depute asked her “Did he do anything else?”  The complainer answered that he had had sex with her whilst she was asleep; a matter for which there was no libel.  An objection was taken and an application made to desert the diet pro loco et tempore.  The difficulty with the complainer’s evidence on these charges was her acknowledgement of a dependence on alcohol and her consequent lack of memory.  She did speak to various occasions when she had woken up and found her underwear to be inside out or the wrong way round (c 15).  She had not dressed in that way. 

[10]      During the course of the investigation, the appellant was interviewed.  Part of the recording was played to the jury.  He denied any criminal conduct.  His then current partner, CH, with whom he had been in a relationship for some 12 years, was interviewed.  A suggestion was made that the police had attempted to obtain evidence from her which she had not been willing to give.  When she gave evidence, she described her relationship with the appellant as good.  There was neither physical nor sexual violence. 

The trial judge’s approach
[11]      The trial judge refused the motion to desert the diet on the basis that the matter could be dealt with by an appropriate direction.  In due course he directed the jury that the only allegation, and the only evidence, of conduct of a sexual nature, in relation to KR was that concerning her underwear (c 15 supra).  He specifically directed them that, in so far as the sexual offences were concerned, if the jury did not believe the evidence of both LMcD and JC, that would be the end of these charges, because there was nothing in KR’s evidence that could corroborate the allegations of rape, indecent assault or related matters involving LMcD or JC. 

[12]      A submission of no case to answer had been made to the effect that the violence libelled in charge 1, involving JC, could not corroborate, or be corroborated by, the violence libelled in respect of KR on charge 14, because of the time gap of some 20 years.  The trial judge took the view that, at that stage, it could not be said that neither offence was capable of being corroborated.  In addition to the significant similarities between the events libelled in both charges, there was the evidence of other relevant acts of physical violence libelled in charges 6 and 13.  Charge 6 could not provide corroboration for charge 1, since both were reliant upon the evidence of JC.  However, against a background of jealous and possessive behaviour and displays of temper by the appellant, the conduct spoken to in charge 6 could be viewed as another example of the sort of conduct libelled in charge 1.  The events of charge 6 occurred in late 1992, less than 8 years before the first violence against KR in charge 14 (2000) and less than 5 years before the violent driving involving LMcD in charge 13.  There was violence involved in the charge involving penetrating LMcD’s vagina with objects in 1997 (c 11), which could also be seen as the same course of criminal conduct as the events in charges 1 and 6. 

[13]      The trial judge was of the view that the incidents spoken to in relation to all the charges could be viewed as part of one extended course of criminal conduct persisted in by the appellant.  Even taking charges 1 and 14 in isolation, they were capable of providing mutual corroboration in the overall context of the case.  Whether the place and circumstances of the crimes committed were such as to prove a course of conduct, in spite of the time lapse between the two charges, was a matter for the jury.  The judge thought that there was sufficient evidence by reason of mutual corroboration of the driving libelled in charges 6 and 13, set against the background of the appellant’s behaviour to both complainers. 

[14]      In due course, the trial judge directed the jury on the requirement for corroboration.  He dealt in particular with the principle of mutual corroboration as follows:

“... Where ... it can be said that individual charges against a particular accused are so linked in time, character and circumstances that you are satisfied that they are each part of a single course of criminal conduct systematically pursued by the accused, then the circumstances of one charge spoken to by the alleged victim may corroborate the evidence of the alleged victim on another charge or charges. 

            ... it’s essential for the operation of the rule that there must be some underlying unity or similarity between the offences which make them part of the one course of criminal conduct.  It doesn’t matter that they are not of exactly the same degree of gravity, or all have the same name.  They can still be part of the one course of conduct.  The difference in gravity and detail does however have an effect on how you apply corroboration ...”.

[15]      The trial judge made it clear that it was essential, when attempting to find corroboration in relation to two charges involving different women, that the jury find each complainer credible and reliable.  The jury could only return guilty verdicts if they included at least two charges involving different women.  He continued:

“While there are three factors in respect of which you have to be satisfied about the closeness of the relationship ... that’s time, character and circumstances ... it is not essential the relationship be equally strong in respect of each.  If the relationship in respect of one is not very strong, but there’s a strong and close relationship in respect of the other two, then you may find the offences were so related to each other as to be part of a single course of criminal conduct systematically pursued by the accused.  And different partners, or wives over a fairly long period of time, is an example of where that’s a possibility because of that peculiarity, as it were, that they [are] related in a particular way.  And that would strengthen the circumstances ... and might convince you that even though there was a long period of time covered by the allegations, they were truly all part of a single course of criminal conduct.  ...”.

[16]      The trial judge dealt with time, character and circumstances separately, mentioning in relation to time that, although there was no maximum period, a significant gap could indicate that the offences were not part of a single course of conduct.  He continued:

“... it is conceivable and, as a matter of law, possible, that all of these offences are part of the one course of criminal conduct systemically pursued.  ... that ... is the way in which the Crown have presented the case to you; that this is one course of abusive conduct towards partners carried out with physical, as well as sexual violence.”

Having done that, he directed the jury that it was also possible to see more than one course of criminal conduct: for example, the rapes, the indecent assaults and the physical assaults.  In any event, even if it was one course of conduct, there were only certain charges that could provide corroboration of another. 

[17]      On this basis, he specifically directed the jury that corroboration for charges 2, 3 and 5 (rape, and assault with intent to rape, of JC) could be found in the evidence on charge 9 (assault and rape of LMcD) and vice versa.  Corroboration for charge 4 (indecent assaults on JC) could be found in the evidence on charges 10, 11 and 15 (indecent assaults on LMcD and KR).  Corroboration for charges 10 and 11 could be found in charges 4 and 15, and for charge 15 in the evidence on charges 4, 10 and 11.  The charges of indecent assault could be corroborated by the allegations of rape, although the reverse did not work.  Corroboration for charges 1 and 6 (physical assaults on JC) could be found in the evidence on charges 13 and 14 (physical assaults on LMcD and KR), although it might be easier to look at charge 1 along with 14 and 6 along with 13.  One final point was that charge 11, involving the allegations about the insertion of objects, might also provide corroboration of, or might be corroborated by, the evidence on charges 1 and 14.  There was more to that charge than indecent assault.  It was also a violent act. 

[18]      The trial judge made it clear that, whilst he was saying these things as a matter of law, it was for the jury to determine whether, as a matter of fact, mutual corroboration applied.  The rule had to be applied cautiously and the jury had to consider the position in relation to each charge carefully.  In relation to charges 1 and 14, the judge reminded the jury of the defence speech that, because of the gap in time, these incidents could not amount to a single course of criminal conduct.

[19]      In relation to the evidence of CH, the judge took the view that what she had said had been of a very general nature, almost in the form of a character reference.  The circumstances of their relationship had not been explored in any detail.  He reminded the jury that the defence had been relying upon her evidence, but told them that the significance of her evidence in that regard was “very limited in relation to decisions you’ve to make about contact in relation to other people in different relationships”. 

Submissions
Appellant
[20]      The first and second grounds of appeal were that the trial judge had erred in refusing to desert the diet pro loco et tempore.  The question which the advocate depute had put to KR had been “loose and ill-advised”.  There was a real possibility that the jury would have had regard to this witness’s evidence when considering the charges which were libelled.  Where the fairness of a trial may have been prejudiced, the diet ought to be deserted unless the error or unfairness could be cured by way of an appropriate direction (HM Advocate v Fleming 2005 JC 291 at para [33]).  The judge had not provided any subsequent direction. 

[21]      On the third ground, it was submitted that there was insufficient similarity between the incidents libelled in charges 1 and 14 to overcome the problems of the considerable time gap between them (Pringle v Service 2011 JC 190).  These were the only charges of physical, as distinct from sexual, abuse.  There had been an intervening relationship with no physical violence.  Where there were only two offences, caution had to be exercised (Mackintosh v HM Advocate 1991 SCCR 776).  The fourth ground was that, if the judge had been correct in refusing the submission, once the jury had acquitted the appellant of charge 14, there was no corroboration in respect of charge 1.  The jury could not convict of one offence and acquit of the other (Reid v HM Advocate 1999 JC 320).  The fifth ground was that charges 6 and 13 could not have been used to corroborate each other mutually.  The similarities were superficial.  The doctrine could not be relied upon unless there was some nexus or underlying unity (K v HM Advocate 2012 JC 74 at para [10]).  The more that these two incidents appeared different on the facts, the more dangerous it became to apply mutual corroboration (Mackintosh (supra)).  Charge 6 involved driving a car at the complainer and her children.  Charge 13 was one of driving the complainer and her child at an excessive speed.  There was a gap of more than 4 years between them.

[22]      The sixth ground was that the judge had misdirected the jury on mutual corroboration.  His directions were complex, unclear and apt to confuse.  He did not provide the jury with the standard example (corruption of goalkeepers) contained in the Jury Manual.  The seventh ground was that the judge had misdirected the jury by failing to state that, for the doctrine to apply, the jury required to be satisfied beyond reasonable doubt that those charges, which were said to have corroborated each other, were sufficiently linked in character, time, place and circumstances that they formed part of a single course of criminal conduct involving an underlying unity. 

[23]      The final ground was that the judge had misdirected the jury when he had said that CH’s evidence was of limited value.  It was capable of showing that the appellant had not carried out a persistent course of physically and sexually abusive conduct towards all partners.  The judge had therefore trespassed into the province of the jury. 

Crown
[24]      The advocate depute was not called upon in relation to the first two grounds.  On the third and fourth grounds, it was conceded that, if only charges 1 and 14 had been involved, the Crown may have been in difficulty, but that was not the manner in which the case had been presented.  Rather, although the charges required to be separated into different types of offending, all of the conduct, whether violent or sexual, was designed to humiliate and control the complainers.  The conduct required to be looked at as a whole.  The jury had been entitled to acquit the appellant on charge 14, yet convict on charges 1, 6 and 11 given the violent nature of the conduct in the latter.  On ground five, charges 6 and 13 were not merely superficially similar in their context.  Both had involved the appellant using his car as a weapon to instil fear in the complainers whilst their very young children had been present.  The judge’s directions had been accurate, including that concerning the value of CH’s testimony.

Decision
First and Second Grounds
[25]      Whether to desert a trial because of an unexpected answer to a question directed at other matters is primarily a question for the trial judge to answer in the context of the trial as a whole (Fraser v HM Advocate 2014 JC 115, LJC (Carloway) at para [58], followed in Crombie v HM Advocate 2015 SCCR 29, Lady Paton at para [17]).  The question asked by the Advocate Depute had been designed to find out what else KR could recall of the events libelled in charge 14 involving her being dragged into a lorry.  The answer related to a matter not libelled, but which, if accepted by the jury, may in other circumstances have provided corroboration of other charges in which such conduct was libelled in relation to other complainers.  The judge declined to desert the trial as he was satisfied that the matter could be dealt with by way of an appropriate direction to the jury.  In due course, with considered subtlety, he did give a direction about there being no testimony from KR which could corroborate the similar allegations of sexual conduct committed against the other two complainers.  He deliberately did not highlight the answer given by KR.  It is not possible to fault this exercise of discretion.  The manner in which the judge addressed the issue in his directions was one which he was entitled to take.

Third to Fifth Grounds
[26]      At the stage of a no case to answer submission the Crown evidence must be taken at its highest.  The significance of a substantial time gap between offences requires to be determined in light of all the circumstances.  The more similar the conduct is, in terms of time, character and circumstances, the less important a substantial time gap may be.  Compelling similarities will merit consideration of the whole circumstances by the jury, even where there has been a substantial interval of time (AS v HM Advocate 2015 SCCR 62, LJC (Carloway) at para [10]).  Of course, the longer the time gap, the more difficult corroboration will become.  The search is for evidence indicative of an underlying similarity between the circumstances of the offences such as to enable the conclusion to be drawn that there was a course of conduct which was being persisted in by the appellant.  It is a question of fact and degree whether the nature of the evidence is such that it would be legitimate to draw the inference that the incidents were indeed components in one course of criminal conduct (CW v HM Advocate 2016 SCCR 285, Lady Dorrian at para [31]).

[27]      The facts in charge 1 encapsulated violence towards JC in 1981 and threats of violence in 1992.  In charge 6 there was further violence involving the use of a car.  Taken along with what might also be regarded as sexual violence in relation to JC in charges 2, 4 and 5, the charges can all be viewed as a course of sustained abuse against a partner in a domestic setting designed, within a context of jealousy, to humiliate and control.  The behaviour libelled in charge 11 against LMcD, involving the insertion of objects, falls into a similar category and occurs in the same setting.  The violence in charge 13, involving the use of a car to terrify his wife can be seen, along with the sexual abuse of this complainer in remarkably similar circumstances to that involving JC, as part of this course of conduct.  Looking at all the charges, including those involving KR (c 14) of which the appellant was acquitted, there was a sufficiency on each as a consequence of the application of mutual corroboration.  The trial judge was therefore correct to repel the no case to answer submissions.

Sixth and Seventh Grounds
[28]      The trial judge’s directions on the application of mutual corroboration cannot be faulted, even if there is a perception of reticence in what might be seen as a slight retreat from his original, and correct, statement about each physical or sexual offence being capable of corroborating another where they are readily seen as very similar abusive conduct towards a partner or spouse in the domestic context.  The judge commenced with an exemplary general description of how, if each individual charge can be seen as so linked in time, character and circumstances that they are each part of a single course of criminal conduct systematically pursued by the accused, then the circumstances of one charge spoken to by one victim may corroborate that spoken to by another victim in respect of a different charge.  Having provided the overall option of a single course of criminal conduct, and explained to the jury that it was a matter for them to determine whether and how to apply mutual corroboration, the judge offered an alternative of separating the conduct into three different courses of rape (or assault with intent to rape), indecent assault and physical assault.  Both approaches can be seen as legitimate.  The jury were advised to exercise caution, especially in relation to the time gaps.  None of this can legitimately be criticised.  Introducing the common example of the bribed goalkeepers is unlikely to have helped the jury in the context of domestic abuse.

Eighth Ground

[29]      In relation to the final ground, it is true that the evidence is for the jury to analyse and assess.  A judge should take care not to trespass upon the jury’s province.  Nevertheless, a trial judge is tasked with providing the jury with “such guidance and assistance”, in relation to the assessment of evidence and the weight to be attached to it, as he can properly afford (Practice Note, 18 February 1977 Criminal Trials).  With his judicial skill and experience, a trial judge is entitled to make such reasonable comments on the evidence as he deems appropriate, provided that it is made clear to the jury, as it was in this case, that it is ultimately for them to assess the evidence and determine its weight.  It may be doubted whether the testimony of CH was relevant at all, given that it related to a period beginning some years after the events libelled.  However, it was led without objection.  It was, nevertheless, open to the judge to give the jury some indication of its potential value, even if he was not bound to do so.  That value was limited and the judge’s comment was legitimate where he had also made it clear that its weight remained for the jury to assess.

[30]      The appeal is refused.