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Cite as: [2022] HCJAC 27, [2022] ScotHC HCJAC_27

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2022] HCJAC 27

HCA/2021/000375/XC

Lord Justice Clerk

Lord Malcolm

Lord Matthews

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant: F MacIntosh QC, Brannigan; Paterson Bell, Solicitors, Edinburgh for John Kilcoyne,

Solicitors, Glasgow

Respondent: A Prentice, QC, Sol Adv, AD; Crown Agent

12 July 2022

Introduction

[1]

The appellant was convicted in the High Court of 14 charges which included rape,

domestic assault, indecent communications and threatening, abusive and controlling

behaviour, relating to four complainers. His appeal against conviction proceeds on the basis

that the trial judge failed to provide the jury with specific directions identifying those

charges which relied upon the doctrine in Moorov for corroboration, and those in respect of

which other corroborative evidence was available.

[2]

The charges spanned the period December 2009 to June 2019. All but charges 13 and

18, which contained specified dates, were libelled as occurring on various occasions over a

period of time. All but the common law assaults in charge 11 and 13, and the abusive

behaviour in charge 14, averred repeated instances of behaviour. There were also two

dockets, the first relating to a non-sexual assault on one complainer and the second relating

to threatening and abusive behaviour or what would have been a breach of special

conditions of bail relative to another complainer.

[3]

The complainers were each in a relationship with the appellant at the time of the

offences to which they spoke. In turn they each spoke to a serious course of obsessive,

controlling, violent, threatening and abusive behaviour, including repeated sexually abusive

and violent behaviour, on the part of the appellant throughout the period of their

relationships. All four complainers spoke to physical assaults in similar circumstances and

three of them spoke to being sexually assaulted and raped, again in similar circumstances.

[4]

For the appellant, it was submitted that the trial judge had failed to provide specific

directions about which charges required the application of Moorov and which were

supported by independent evidence. It was accepted, that the trial judge need not analyse

the evidence in a compartmentalised way (McA v HMA 2015 JC 27), but it was submitted

that to understand the doctrine, the jury needed examples. In the absence of these the jury

might have thought that abusive behaviour and breach of bail might be seen as illustrative

of a course of conduct such as would allow that evidence to corroborate the sexual charges.

The trial judge had been correct to direct the jury that the evidence of rape could not be

corroborated by evidence of a non-sexual assault (Duthie v HMA 2021 JC 207 and Stalley v

HM Advocate 2022 JC 121). However, he failed to direct them that the sexual charges had to

be considered together and separately from the other charges which could not provide

corroboration for the sexual charges. They needed a direction to consider the sexual charges

as one group, and the remainder as a separate group, or potentially two separate groups.

That was missing, and led to a miscarriage of justice. The focus of the charge was on the

need for the jury themselves to decide whether the evidence in respect of different charges

was sufficiently similar for the doctrine to apply, rather than directing them that the

evidence on sexual and non-sexual charges required to be considered separately.

Analysis and decision

[5]

The issue in this case is not whether the trial judge clearly identified instances where

independent corroboration might be available, since in essence this really only applied in

connection with charge 13, as his directions made adequately clear. That was the only

charge in respect of which there was independent corroboration, although one of the many

assaults comprised in charge 1 was also corroborated by evidence of injury on a particular

date.

[6]

The real issue is whether the trial judge gave the jury a sufficient road map to enable

them properly to identify those circumstances and charges in respect of which the doctrine

of mutual corroboration could apply, and those where it could not. It is not suggested that

there were any charges on the indictment incapable of proof by reference to the doctrine of

mutual corroboration; rather the issue is whether the trial judge gave adequate directions

which would enable the jury to identify those types of behaviour, or sets of charges, which

might legitimately be grouped together for the application of the rule of mutual

corroboration, and those which did not. The course of conduct which involved sexual

offending was different from that relating to the purely physical and abusive offending.

[7]

Perhaps it would have been desirable had the trial judge given more direct

instruction to the jury on this issue, and to focus less on the issue of individual charges as

opposed to establishing a course of conduct. Take this passage at page 64 of the charge:

"Now, if we turn to the sexual conduct charges, these allege a range of things from

rape to things like touching the breasts of the complainer, compelling her to

masturbate the accused, and also to taking and having sent naked photographs. I'm

not identifying all of the alleged factors in the crime. The law recognises that more

serious charges of sexual conduct may be corroborated by less serious charges if the

jury decides that the requirements of the rule of mutual corroboration are satisfied.

So that's a matter for you, ladies and gentlemen . There are also the charges of non-

sexual assault and threatening and abusive behaviour. It's a matter for you to decide

whether the evidence in respect of any individual charge can corroborate and be

corroborated by the evidence about another."

[8]

Read in isolation one might reasonably say that the delineation between a course of

sexual assault, whereby evidence of one complainer regarding the individual incidents

thereof may be corroborated by evidence of another complainer of a similar incident, and a

course of physical and verbal abuse which required to be considered separately, was not

made sufficiently clear.

[9]

However, as is ever the case, the effect of individual passages in a judge's charge

must be read in the context of the charge as a whole. If one does that it becomes clear that in

the last two lines of this passage the trial judge is identifying for the jury a different category

of behaviour in respect of which the evidence of the witnesses may be found to be mutually

corroborative. This is clear from two main parts of the charge. The first is that at an early

stage in his charge the trial judge identified that the charges essentially fell into three

categories: charges of a sexual nature, charges of a non -sexual nature, and charges of

threatening and abusive behaviour. Each charge identified the crime asserted, and the

manner by which it was said to have been committed. He then went through the individual

charges, identifying for the jury the category into which each fell. Turning to the issue of

corroboration, he noted that there was independent corroboration in respect of charge 13 but

that "to a large extent" the Crown relied upon a special rule of corroboration, which he then

explained to the jury, saying that the rule

"can apply where an accused is charged with a series of similar crimes, there's a

different person in each crime, the commission of each crime is spoken to by one

credible and reliable witness, and the accused is identified as the person who

committed each crime."

[10]

His reference to "similar crimes" must be noted in the context of his having spent

some considerable time identifying for the jury the categories of each offence.

In the second place, the passage from page 64 of the charge, quoted above, was immediately

followed by this passage:

"You couldn't, for example, find that the evidence about rape in respect of one

complainer could corroborate and be corroborated by the evidence of a non-sexual

assault in respect of another complainer; those crimes are too different for the rule to

apply. But there are a number of crimes in the indictment which, it's a matter for

you, are not sufficiently different and to which the rule can apply."

[11]

This is precisely the sort of example which the appellant submits should have been

given. In addition the directions given about the use to which evidence relating to the

docket might be used were consistent with the trial judge's overall approach to categorising

the evidence. He directed the jury that the evidence relating to the first paragraph in the

docket, concerning physical acts of violence, could be mutually corroborative of the

evidence of other complainers in respect of assault on them; whereas that relating to the

second paragraph, which narrated abusive conduct might be capable of corroborating the

evidence of other complainers in respect of charges of threatening and abusive behaviour.

[12]

The dangers of mentioning and perhaps adopting the Crown speech were

highlighted in Stalley. It was submitted for the appellant here that by making reference to

the Crown speech as identifying similarities in the evidence of different complainers, the

trial judge erred; and that his directions regarding mutual corroboration could only be

understood in the context of the Crown speech , which did not itself delineate between

different courses of conduct. It is true that the Crown speech did not itself make a clear

distinction about the different types of behaviour wherein mutual corroboration might be

found. It is also correct that the judge stated to the jury:

"Now, you've heard what's been said about it, the Crown says the rule can be

applied in this case and it relies on what the advocate depute described as a very

similar pattern, and she listed the points of alleged similarity."

[13]

However, this is only one sentence from the charge. The trial judge did identify the

different courses of conduct during his charge, and we do not consider that the jury could

have been in any doubt as to the task before them. As we have already noted the trial judge

had given an example, which was perfectly adequate for the circumstances of this case.

Taking the charge as a whole, it can be seen that the trial judge directed the jury that they

could not find corroboration for the evidence on sexual charges in evidence on non-sexual

charges, that corroboration for evidence on assault charges could be found in evidence of

assault and that corroboration of evidence of threatening and abusive behaviour could be

found in other such evidence. It was correct to direct the jury that whether they were

satisfied that the requisite similarities and conditions of the doctrine existed before they

could apply it was a matter for them. Whether the offences required to be considered as

falling into three categories to which Moorov might apply, as directed by the trial judge, or

only two (sexual offences on the one hand and the remaining abusive and violent behaviour)

is a moot point, but the direction was favourable to the accused in any event. The appeal

will be refused.