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MARK WILLIAM DUTHIE AGAINST HER MAJESTY's ADVOCATE [2021] ScotHC HCJAC_23 (30 March 2021)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_23.html
Cite as:
2021 GWD 12-166,
[2021] HCJAC 23,
2021 SLT 469,
[2021] ScotHC HCJAC_23,
2021 SCCR 100,
2021 JC 207
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 23
HCA/2020/000209/XC
Lord Justice General
Lord Justice Clerk
Lord Menzies
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in the appeal against conviction by
MARK WILLIAM DUTHIE
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: I M Paterson (sol adv); Paterson Bell (for Bruce & Co, Arbroath)
Respondent: Farquharson QC AD; the Crown Agent
30 March 2021
Introduction
[1]
This appeal concerns whether there was sufficient evidence to corroborate charges of
rape which, in so far as they involved two different complainers, took place some eight years
apart. The case was remitted to a Full Bench in order to consider, as part of the appeal,
wider questions of whether: (1) evidence of a course of physical assaults and verbal abuse
within coercive and controlling domestic relationships could corroborate the incidents of
rape; (2) it is generally for a trial judge to determine the issue of sufficiency or whether that
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is a matter which should be left to the jury; and (3) a special, compelling or extraordinary
circumstance is required before mutual corroboration could be applied to rapes which
occurred several years apart. The court was concerned that there may be a continuing
tension between some of the appellate decisions of the High Court in these areas over the
last decade.
Background
[2]
On 19 February 2020, at the High Court in Edinburgh, the appellant was convicted of
29 charges. Most libelled conduct which occurred during his relationships with seven
women over a 15 year period. Three were of rape as follows:
"(002) on an occasion between 1 ...and 31 May 2003, ... at ...Forfar, you ... did
assault [DC] ..., your then partner, ... and did push her onto a bed, straddle her, hold
her body down and penetrate her vagina with your penis and did rape her.
...
(020) on an occasion between 23 September ...and 31 December 2011, ...at,
Montrose, you did assault [NaD], your partner ...and did, while she was sleeping
and incapable of giving or withholding her consent and thereafter while she was
awake, penetrate her vagina with your penis and you did thus rape her: CONTRARY
to Section 1 of the Sexual Offences (Scotland) Act 2009;
(021) on an occasion between 23 September ... and 31 December 2011, ...at
...Montrose, you ... did assault [NaD], your then partner ... and did repeatedly
touch her vagina over her clothing, punch her on the head, and penetrate her vagina
with your penis and you did thus rape her: CONTRARY to Sections 1 and 3 of the
Sexual Offences (Scotland) Act 2009."
[3]
The other charges consisted primarily of physical assaults, some to injury, against six
complainers; all of whom had been partners of the appellant and including the two
complainers in the rape charges. All of the offences occurred at addresses in Dundee, Forfar,
Arbroath, Montrose, Brechin or nearby towns. Specifically, there were: a number of assaults
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on DC in 2003 (charge 1); two assaults on JM in 2005 (3 and 4); a number of assaults on LD
between 2007 and 2009 (8, 9 10, 12 and 13); a number of assaults on NaD between 2008 and
2009, and again in 2011 (14, 16, 18 and 22); a number of assaults on NiD between 2015 and
2017 (23 to 26); four assaults on KR between 2015 and 2017 (27, 28, 30 and 31); and three
assaults on SB in 2018 (32 to 34). None of these assaults libelled a sexual element.
[4]
In order to secure a conviction on the rape charges, the Crown required to rely on the
application of mutual corroboration. When the appellant made a no case to answer
submission, the Crown submitted that all of the charges, including those libelling assault
only, formed part of a course of humiliating, degrading and controlling conduct within a
domestic relationship. The evidence of the assaults could corroborate the rape complainers'
testimony. In any event, the time gap was not too long, and the similarities were so strong,
as not to require any special feature. If one were required, the nature of the relationship
provided the significant feature or compelling circumstance.
[5]
The trial judge determined that the rape charges had to be considered separately
from the other charges, but that the jury were entitled to view the domestic setting as a
special, compelling or extraordinary circumstance such as would allow for the application of
mutual corroboration notwithstanding the time gap.
Charge
[6]
The trial judge directed the jury, in terms of his decision on sufficiency, that the rape
charges had to be considered separately from the non-sexual offending because they did not
share the same characteristics. The assault charges could not be used to corroborate any of
the rapes. Having told the jury that they required, first, to accept the two rape complainers
as credible and reliable, the judge outlined the need for the jury to decide whether the rapes
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were so closely linked by their character, circumstances and time as "to bind them together
as parts of a course of criminal conduct systematically pursued by the accused". He pointed
to the time gap as a factor which, in ordinary circumstances, would mean that mutual
corroboration could not apply. The jury had to find "some special or compelling feature"
which enabled them to conclude that, despite the time gap, the offences were closely linked
in the manner which he had explained.
[7]
The trial judge summarised the parties' submission on this matter. The Crown said
that the extraordinary feature was the similarities in the circumstances of both complainers
as young and vulnerable women and the wider campaign of domestic abuse against both
women. The judge drew an analogy with the sexual abuse of children as a "peculiar crime",
which, by itself, constituted a special feature that helped to bind the crimes together. There
were some parallels with both types of offence being committed in a domestic setting and
largely in private. Both involved an abuse of power or trust and could have prolonged
psychological and emotional effects. The defence maintained that the time gap was too
long. Domestic abuse was not a special feature. The rapes could not form part of a course of
criminal conduct, given that the complainers in the intervening period had made no
complaint of a sexual nature. In conclusion, the trial judge said:
"... [I]f you get this far the question for you may be whether these are two isolated
occurrences, perhaps showing a propensity to commit rape or do they demonstrate a
course of conduct systematically or persistently pursued by the accused."
Submissions
Appellant
[8]
The appellant contended that the time lapse between the rape charges meant that
extraordinary or special features were required to make the similarities compelling (KH v
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para [14]). The physical abuse of the other complainers could not bridge the gap. The
appellant's intervening relationships with the other complainers undermined the existence
of a continuous course of conduct persistently pursued. The existence of domestic
relationships was not an extraordinary feature. Domestic abuse, which involved physical
assaults and verbal abuse, had to be looked upon as of a different character to rape. The
conduct lacked the overall similarity necessary to make the offences "component parts of
one course of conduct persistently pursued by the accused" (MR v HM Advocate 2013 JC 212
at para [20], cited in HM Advocate v SM (No 2) 2019 JC 183 at para [6]). The conduct need not
have the same nomen juris, but there had to be a "similarity of the conduct described in the
evidence" (MR v HM Advocate at para [19] and KH v HM Advocate at para [34]). In order for
mutual corroboration to apply, a rape would have to involve conduct of the same character
as physical and/or verbal abuse in a domestic setting. This was not tenable given that rape
involved penile penetration without consent.
[9]
Sufficiency of evidence was a matter of law for the trial judge to determine. The
judge erred in determining that it was for the jury to decide if there was a break in any link,
as a consequence of the other relationships. Although it had been said that a no case to
answer submission should only be granted if "on no possible view" could it be said that the
individual instances were component parts of one course of conduct persistently pursued
(Donegan v HM Advocate 2019 JC 81 at para [39], following Reynolds v HM Advocate 1995 JC
142 at 146; HM Advocate v SM (No 2) at para [6]), the judge had a duty to uphold a
submission of no case to answer if there was insufficient evidence.
[10]
Time was an essential part of mutual corroboration. Without a connection in time,
there could be no course of criminal conduct systematically pursued. The words "special",
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"compelling" or "extraordinary" related to evidence which would allow the course of
conduct to be seen as continuing. Where there were long gaps, there needed to be good
reasons to explain the break in the conduct.
Respondent
[11]
In a wide ranging response, the advocate depute submitted that the trial judge had
erred in compartmentalising the offences. The whole offending had to be looked at together.
In the context of a domestically abusive relationship, the act of penetration could be a
sexually violent one designed to achieve coercive control. That illustrated an underlying
unity of purpose between the physical and sexual assaults. The trial judge erred in holding
that the sexual offences were of a different character to the physical assaults and in directing
the jury accordingly.
[12]
A course of physical assaults in the context of a coercive relationship could
corroborate rape. Whether it did so would depend on the circumstances. Part of the court's
function was to react to developments in society's thinking. Lesser offending could
corroborate the commission of more serious offending. Cases involving the "peculiar crime"
of the sexual abuse of children possessed a special circumstance sufficient for the jury to find
a course of criminal conduct established (Adam v HM Advocate 2020 JC 141; TN v HM
[13]
It was the underlying similarity of the conduct which had to be considered. It did
not matter that the charges had different names or were more or less serious (CW v
HM Advocate 2016 JC 148 at para [34]). The court's experience of the type of offending in
question, and common sense, indicated that not every act of physical or sexual violence
would necessarily be visited on each and every complainer. The actions/reactions of a
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particular complainer may account for different outcomes in terms of an accused's conduct
(JC v HM Advocate [2016] HCJAC 100 at para [16]. It may be appropriate to look at the
particular vulnerability of a complainer (JGC v HM Advocate 2017 SCCR 605).
[14]
An accumulation of violent and sexual behaviour, which was directed against
different partners, could reflect an underlying course of conduct of domestic abuse (Reilly v
HM Advocate 2017 SCCR 142; KH v HM Advocate at para [34]; McAskill v HM Advocate 2016
SCCR 402 at para [28]). The appellant's actions demonstrated a course of coercive behaviour
in his relationships with seven different women, across 15 years; starting when he was only
15. The complainers spoke of behaviour that was controlling, not just in terms of his
physical and sexual violence, but also repeated. The appellant: would not allow his partners
keys; would not allow them out of the house; monitored their movements; restricted their
contact with others; and isolated, degraded, insulted, frightened and humiliated them.
[15]
There were sufficient and particular similarities between the charges to allow mutual
corroboration to be applied. In addition to both complainers being female, young, and in a
relationship with the appellant, the rapes occurred after the relationships had endured for
some time. Both complainers suffered physical, verbal as well as sexual abuse. The rapes in
charges (2) and (20) were preceded by assaults. Sexual gratification was obtained by forced
penile penetration, either when the complainers were asleep or actively not consenting.
Both complainers told the appellant that they did not want to have sex. They were crying
during the rapes and had continued to say "no" during the course of the rapes.
[16]
While there were no reports of sexual offending in his intervening relationships, the
appellant's background of forming comparable, controlling and dysfunctional relationships
with other females should not be ignored. It demonstrated that he was involved in a wider
campaign of domestic abuse. Changes in society's appreciation of the effects of domestic
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abuse had been reflected in the Domestic Abuse (Scotland) Act 2018 which had been
preceded by the Scottish Government paper: A Criminal Offence of Domestic Abuse (see
paras 3.4, 3.6 and 3.10). Time was the most flexible component in Moorov v HM Advocate
[17]
Whether a course of physical assaults and verbal abuse could corroborate incidents
of rape was a matter that should generally be left to the jury (Reynolds v HM Advocate
1995
JC 142
at para 146; MR v HM Advocate at para [20]; Finlay v HM Advocate 2020 SCCR 317; JL
v HM Advocate 2016 SCCR 365 at para [33] and Adam). There would be exceptional cases in
which the trial judge required to intervene (Donegan v HM Advocate at paras [38] [45]; RF v
jury could reasonably draw a particular inference from a body of evidence rather than
whether inferences ought to be drawn (Du v HM Advocate 2009 SCCR 779).
Decision
Mutual Corroboration of Rape
[18]
It is first necessary to decide what requires to be corroborated. The immediate
answer is simple; the crucial facts of whether a crime has been committed and the identity of
the perpetrator. At common law (charge 2) rape is defined as the act of having sexual
intercourse against the complainer's will (Lord Advocate's Reference No 1 of 2001 2002 SCCR
435). There requires to be corroborated evidence of penetration and lack of consent. Under
the Sexual Offences (Scotland) Act 2009 (s 1) (charges 20 and 21), the necessity of proving
penetration by corroborated evidence remains the same. On each of the rape charges, the
relevant complainer testified to being penetrated by the appellant. What then was needed
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was evidence from another source that confirmed or supported that testimony (Fox v HM
Advocate 1998 JC 94, LJG (Rodger) at 100 101). The only method by which any of the rapes
could be proved was by application of the principle of mutual corroboration.
[19]
In Adam v HM Advocate 2020 JC 141 the court (LJG (Carloway), LJC (Lady Dorrian)
and Lord Turnbull) set out (at para [28]) the settled law on mutual corroboration as follows:
"the testimony of one witness about one crime may be corroborated by a second
witness's testimony about another crime where there are similarities in time, place
and circumstances in the crimes `such as demonstrate that the individual incidents
are component parts of one course of conduct persistently pursued by the accused'
(MR v HM Advocate 2013 JC 212 LJC (Carloway), delivering the opinion of the Full
Bench, at para [20] citing Ogg v HM Advocate 1938 JC 152 LJC (Aitchison) at 157,
describing the ratio of Moorov v HM Advocate 1930 JC 68)."
Expressions of how the law might be changed could not detract from what the law actually
was, as vouched by several Full Bench decisions and the Institutional Writers.
[20]
Before looking to see whether there is proof of a course of conduct, there first has to
be a search for similarities in the time, character and circumstances. When analysing the
similarities in circumstances, the mutually corroborative testimony does not have to relate to
incidents which carry the same nomen criminis. This area was explored in some depth by the
Full Bench in MR v HM Advocate 2013 JC 212 in which it was recognised (LJC (Carloway),
delivering the opinion of the court, at para [17]) that the law required to keep pace with
modern societal understanding of sexual and other conduct. The focus in MR was on
different kinds of sexual offending against female relatives, but the court acknowledged that
"sexual and physical abuse of different kinds" within the same family unit was one model of
that nature (see also
. A sexual
offence of a relatively minor type might corroborate more serious sexual conduct (eg Watson
v HM Advocate 2019 JC 187). In cases such as the present, where there is direct testimony
10
from two or more complainers, it is the underlying similarity of the conduct that is
important and not the name which is attached to it (MR at para [17], quoting McMahon v
HM Advocate 1996 SLT 1139 LP (Hope) delivering the opinion of the court at 1142).
[21]
The proposition in this case is that an act which contains no sexual element at all can
corroborate a sexual one when they occur in a domestic context of abusive, controlling or
coercive conduct. However interesting it may be to analyse the place of rape as a crime of
violence in the domestic context, the law has traditionally distinguished between two types
of behaviour; sexual (including lewd practices, indecent and now sexual assault and rape)
and non-sexual (assault, aggravated or simple). It may not be unreasonable to describe rape
as an aggravated sexual assault at least in certain circumstances, but the sexual content
remains, irrespective of the perpetrator's motives. Rape is a crime which is distinct from
physical assault. It requires a particular act of a sexual nature, viz. penetration. It is not
capable, at least in the circumstances of this case, of being corroborated by evidence which
relates only to physical assault, however repeated and in whatever context. Although the
Domestic Abuse (Scotland) Act 2018 reflects important advances in society's understanding
of the nature and effects of sexual abuse, it does not alter the position that rape is different
from a physical assault, given the need for penetration.
[22]
Although a person, who is of a controlling disposition, may perpetrate a number of
different types of crime against his partners, perhaps including not only physical or sexual
assaults but also theft, malicious mischief and contraventions of the Communications Act
2003, that does not make these offences "similar" for the purposes of mutual corroboration.
Dishonest persons may have a propensity to commit a variety of lucrative crimes, from theft
to drug dealing and from extortion to embezzlement; that does not make them similar
crimes for those purposes. It is not sufficient that the incidents relied upon demonstrate a
11
propensity to commit the crimes of the nature libelled; the test of similarity must first be
met. That test is a necessary precursor to the search to see if the inference of a course of
conduct persistently pursued is met. The Crown's central contention that testimony about
physical assaults can afford corroboration of rapes is rejected.
[23]
For a valid conviction to have followed, the jury required to consider whether the
principle of mutual corroboration could be applied to the testimony of the complainer in
charge (2) by using the testimony of the complainer in charges (20) and (21) and vice versa.
In the circumstances of this case, in which there was no other sexual offending libelled, the
act of rape in each charge was only capable of being corroborated in this manner by both
complainers speaking to the rapes, and in particular the acts of penetration. The domestic
context of the relationships could be an important factor in determining whether the three
acts, some eight or more years apart could be classified as component parts of a course of
conduct persistently pursued by the appellant. The existence of the time gap, and the
absence of intervening complaints of sexual offending, could also be a significant feature,
but the jury were entitled to take into account events which they were satisfied had occurred
in the intermediate domestic relationships when deciding this issue. The question remains
one of fact and circumstance in the particular case. Provided that the jury are properly
directed on the legal principles to be applied, their verdicts will not normally be open to
challenge.
No Case to Answer Submission
[24]
Prior to the introduction of the no case to answer submission procedure by the
Criminal Justice (Scotland) Act 1980 (s 19 amending the Criminal Procedure (Scotland) Act
1975 by introducing s 140A, now the 1995 Act, s 97)) the defence could make a submission
12
based on an insufficiency of evidence, but only after all the evidence had been led. If the
judge agreed with the submission, he required in due course to direct the jury to return a
verdict of not guilty (Kent v HM Advocate 1950 JC 38 LJG (Cooper) at 41). The new
procedure provided an opportunity for the defence to make a submission prior to having to
elect to give or lead evidence. If the judge sustains the submission, he or she "acquits" the
accused. The test on whether to sustain such a submission is whether "the judge is satisfied
that the evidence led by the prosecution is insufficient in law to justify the accused being
convicted" (1995 Act, s 97(2)). That is the only test. Although no formal question of onus of
proof arises, it is for the accused to satisfy the judge on the absence of a sufficiency.
[25]
In the specific context of mutual corroboration, it has frequently been said that a no
case to answer submission should only be sustained when "on no possible view" could it be
said that the individual incidents were components parts of a course of conduct persistently
pursued by the accused (Adam v HM Advocate at para [29], citing Donegan v HM Advocate
2019 JC 81 LJC (Lady Dorrian) at para [39]). These words are derived from Reynolds v HM
Advocate 1995 JC 142 (LJG (Hope), delivering the opinion of the court, at 146). Reynolds was
not a sexual offences case. The context of the dictum is as follows:
"[C]ases of this kind... raise questions of fact and degree. That is especially so
where, to use Lord Sands' expression [in Moorov v HM Advocate at 88], the case falls
into the open country which lies between two extremes... We accept that there was a
process of evaluation to be conducted, because there were dissimilarities as well as
similarities. On the other hand, we do not accept that on no possible view could it be
said that there was any connection between the two offences. Where the case lies in
the middle ground, the important point is that the jury should be properly directed
so that they are aware of the test which requires to be applied".
[26]
In its identification of a test to be applied at the stage of the no case to answer
submission, this does not introduce any new or different element beyond the test which is
set out in the words of the statute. The court is not considering the acceptability of the
13
relevant testimony. It is simply asking "whether there is no evidence which if accepted will
entitle the court to proceed to conviction" (Williamson v Wither 1981 SCCR 214, Lord
Cameron, delivering the opinion of the court, at 217). As it is often put, the Crown case
must be taken at its highest. The court must decide whether there is testimony relative to
two or more incidents which, if accepted, contains the requisite similarities such as may
demonstrate a course of conduct persistently pursued. If these similarities exist and one
inference is that there was such a course of conduct, the no case to answer submission must
be repelled. It becomes a matter for the jury to decide whether the appropriate inference of
course of conduct can be drawn from the similarities.
Special, compelling or extraordinary circumstances
[27]
The court in Adam v HM Advocate (at para [31] and [32]) examined the various dicta
in which there had been reference to the necessity, in lengthy time gap cases, of having
special, compelling or extraordinary circumstances before a course of conduct persistently
pursued could be inferred. The source of these references is the opinion of the Lord Justice
Clerk (Gill) in AK v HM Advocate 2012 JC 74 (at para [14]) which followed Dodds v HM
cases which have adopted similar language (eg CS v HM Advocate 2018 SCCR 329 at para
paras [28] [29]) .
[28] It is important that what began as a cautious remark by a trial judge, which was
intended to assist the jury in their assessment of the mutual corroboration issue (in AK at
para [7]), is not elevated into a principle of the law of evidence which is applicable in all
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cases in which there is a lengthy interval between the relevant incidents. It is not the case
that, as a matter of law, in a lengthy time gap case, there require to be special, compelling or
extraordinary circumstances before the appropriate inference can be drawn. What is
essential, in terms of the settled law, which was described in Adam v HM Advocate (at
para [28]), are similarities in time, character and circumstances such as to demonstrate that
the individual incidents are component parts of one course of conduct persistently pursued
by the accused. The jury will have to be directed to that effect but, normally, that is all that
is required. A judge or sheriff may elect to explain to the jury in a particular case that there
is a long time gap and that, because of that factor, the similarities would require to be strong
ones when compared to those needed where the incidents are already closely linked in time.
The giving of such a direction is not essential and in some cases it may be undesirable. In so
far as CS v HM Advocate is seen as being to the contrary effect, it is over-ruled.
Conclusion
[29]
Although there was a significant time gap between the rapes involving the two
complainers, there were sufficient similarities in the appellant's actings, not least the
domestic context of the rapes, to enable the jury to draw the appropriate inference of a
course of conduct persistently pursued by the appellant. It follows that the trial judge was
correct to repel the no case to answer submission. In so far as the judge directed the jury
that a special or compelling factor was required, this favoured the appellant. The appeal is
accordingly refused.
