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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 12
HCA/2021/262/XC
Lord Justice General
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
STEVEN JOSEPH JAMES STALLEY
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Macintosh QC; Paterson Bell
Respondent: A Prentice QC (sol adv) AD; the Crown Agent
11 February 2022
Introduction
[1]
On 15 March 2021, at the High Court in Glasgow, the appellant was convicted of
21 charges involving seven complainers. The offences ranged from breaches of the peace,
through stalking, assault and sexual assault to three charges of rape. The appellant had
previously pled guilty to seven further charges of stalking. Most, but not all, of the charges
2
involved the appellant's partners or ex-partners. The appellant was made the subject of an
order for lifelong restriction with a 6 year custodial element. The appeal raises a question
about the accuracy and adequacy of the trial judge's directions on the application of mutual
corroboration in circumstances in which he directed the jury, inter alia, to take the contents of
the Advocate depute's speech on that form of corroboration "into account". There is a
discrete point about the sufficiency of evidence on two charges.
The charges
[2]
The events leading to the first group of charges (cc 2, 4, 6, 7 and 8) occurred between
May 2007 and January 2008. They concerned the complainer CL, with whom the appellant
was in a relationship. The first incident (c 2) was a physical assault by presenting a knife to
the complainer's face and threatening her. The second (c 4) was a breach of the peace in the
house of a friend, where the appellant was searching for the complainer. About two months
later (c 6), when the complainer was at a Christmas night out, the appellant sent various
texts asking her to return home. On doing so, the appellant was not there. The complainer
went to a neighbour's house. She found the appellant having sexual intercourse with a
woman on the stairs. The appellant started shouting at the complainer and pushed her
down the stairs. The next charge (c 7) was one of rape. This occurred following on from the
events libelled in charge 6. After the appellant returned home, he pushed the complainer
onto a bed and raped her. Finally (c 8), there was a further breach of the peace after the
appellant and the complainer had separated. The appellant repeatedly sent the complainer
text and voice messages, involving shouting, swearing and threatening the complainer and
her family.
3
[3]
The second group of charges (cc 10-15) involved the complainer, GR, who had also
been in a relationship with the appellant. The first (c 10) libelled various occasions between
August 2009 and October 2010, on which the complainer had been raped by the appellant.
The next two charges (cc 11 and 12) were single incidents of rape, which occurred between
April 2010 and February 2011. The next (c 13) was a contravention of section 38(1) of the
Criminal Justice and Licensing (Scotland) Act 2010 (commonly known as a statutory breach
of the peace), involving an episode at the complainer's home in 2013. The next (c 14) was a
sexual assault, by repeatedly touching the complainer, contrary to section 3 of the Sexual
Offences (Scotland) Act 2009, again occurring in 2013. The final charge involving GR (c 15)
was a breach of section 39(1) of the 2010 Act (commonly known as stalking) in 2018. It was
aggravated under section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016
because it involved the abuse of an ex-partner. This happened after the appellant and the
complainer had separated. The complainer had been on a bus when the appellant
approached her and asked for her phone number. Thereafter, he had sent several pestering,
and progressively abusive, messages.
[4]
There was a single charge (c 16) of a sexual assault on RW in 2014 in Paisley. The
complainer, RW, was not in a relationship with the appellant. She had been walking home
from a trip to a garage sometime after midnight when the appellant staggered towards her,
asked her for a cigarette and started to walk with her. The appellant put his hand down her
top, fondled her breasts and put his other hand down her leggings and inside her
underwear. The complainer ran away.
[5]
The next charge (c 17) was the rape of JLB in August 2015. She was not in a
relationship with the appellant. After a night out, they were both in the complainer's house
along with others. The appellant and the others had been asked to leave as she was tired.
4
She had gone to bed in her night clothes, assuming that everyone had left. She was woken
by the appellant having intercourse with her. He had removed her clothing. The same thing
happened on two further occasions that night, after the complainer had again fallen asleep.
When she got up, she found her Rottweiler dog tied to a radiator.
[6]
A further group of charges (cc 18-21) involved the complainer KF and incidents
between January 2016 and August 2018. The appellant had been in a relationship with KF.
The first charge (c 18) libelled several statutory breaches of the peace in early 2016, involving
the appellant threatening the complainer, damaging items in her house and setting fire to a
toilet roll. The next (c 19) was a single event of abduction and assault in April 2016, by
preventing the complainer from leaving his house, pushing her into a wall and gripping her
tightly around the neck. A further assault (c 20) occurred in May 2016 when the appellant
struck the complainer on the head. Finally (c 21), following the breakdown of the
relationship, the appellant contravened section 39(1) of the 2010 Act (stalking) again by
repeatedly calling the complainer and sending her text and voice messages, containing
threats.
[7]
The next group of charges (cc 22 and 23) consisted of another breach of section 39(1)
of the 2010 Act (stalking) and a complainer, MW. The complainer had not been in a
relationship with the appellant. She had been approached by the appellant in the centre of
Glasgow, when she had been waiting for a bus. Having given the appellant her phone
number, she had received numerous text messages asking her to contact him. She agreed to
meet him at Central Station, when he tried to cuddle her and repeatedly attempted to kiss
her in the street.
[8]
The final charges (cc 24 and 25) involved yet another complainer, EMcC, and
incidents between November 2017 and January 2018. The first was a sexual assault in
5
contravention of section 3 of the 2009 Act. The complainer had been waiting for a bus after
finishing her work in Paisley. The appellant approached her and spoke to her. He got on
the bus with her and sat beside her. He asked for her phone number. He then cuddled and
kissed her. That was followed by several text messages containing inappropriate material.
This was covered by the last charge, being a further episode of stalking.
Crown speech
[9]
The Advocate depute sought verdicts on 21 of the 25 charges upon which he had
gone to trial. At the outset of his speech, the AD drew the jury's attention to the principle of
mutual corroboration. He said that this applied where an accused's conduct could be seen
as part of a course of criminal conduct systematically pursued. The jury would require to
look at similarities in time, place and circumstance. He submitted that the jury had heard
from the complainers about individual instances of what was a single course of conduct
towards women with whom he was in a relationship, or happened to meet and with whom
he wanted to have a relationship. Although he said that he was not going to rehearse the
evidence, the AD then engaged in a very detailed narrative of each of the complainers'
testimony. The transcript runs to 43 pages.
[10]
The AD returned to mutual corroboration. He said that the charges could be
grouped in certain ways, although there were many overlaps. There were charges of breach
of the peace (cc 4 and 8). The jury could find mutual corroboration in respect of these two
charges from the similarities with the later conduct, including stalking, involving the
complainers GR, MW and EMcC (cc 13, 14 and 25). There was, in addition, a general theme
that ran through the evidence which enabled the jury to say that all of the charges
constituted a single course of criminal conduct.
6
[11]
The AD turned to the rape charges and maintained that there was mutual
corroboration of each of the complainers who spoke to being raped (cc 7, 10 to 12 and 17). It
was also possible to find mutual corroboration for the rape charges in the evidence of the
sexual assault charges. This included the conduct spoken to by RW (c 16) and GR (c 14).
The AD said that he was not suggesting that an unwanted kiss could provide corroboration
for rape, but he did suggest that all of the sexual assaults (cc 14, 16, 23 and 24) could provide
that corroboration.
[12]
In relation to the physical assaults, charges 2 and 6 could be corroborated by an
assault charge (c 5) involving another complainer and of which the appellant was acquitted.
The other charges of violence (cc 19 and 20) were in the same bracket. Corroboration for the
violent offences could be obtained from elements in the rape charges and the sexual assault
charges. The type of conduct which involved violence towards women, and also involved
rape, could corroborate a physical assault on a woman. The element of control applied to all
of these offences.
[13]
The AD repeated his reference to the jury being able to group the charges together in
the way that he had described. He went on to repeat that there was a theme running
through all of the charges in that it was the appellant exerting control over the women and
forcing his will upon them. The jury could be satisfied that this was all part of a single
course of conduct that the appellant had embarked upon towards all of the women.
Charge
[14]
In his opening remarks to the jury at the start of the trial, the judge had explained
that, in some cases, evidence of one complainer speaking about one charge could be
7
corroborated by the evidence of another complainer, speaking about another charge. He
said that he would give detailed and full directions on this at the end of the trial.
[15]
In his charge, the judge explained the principle of mutual corroboration as follows:
"If you are satisfied that the crimes charged are so closely linked by their character,
that's number one, their character, number two, the circumstances of their
commission, and number three, in time ... so if you are satisfied the crimes charged
are so closely linked by their character, the circumstances of their commission and in
time, so as to bind them together as parts of a single course of criminal conduct,
systematically pursued by an accused, then the evidence of a single witness about
the commission of one crime can be corroborated by the evidence of another single
witness about the commission of another crime or other crimes."
[16]
The judge referred to the well-known example of the corrupt goalkeeper and to
Moorov v HM Advocate 1930 JC 68. It was essential, in respect of each charge, that the
complainer was believed before the jury looked to see whether there was mutual
corroboration. He continued:
"If you do accept the essential parts of the complainer's evidence of any particular
charge, then you may be able to find corroboration from another complainer who
gave evidence which you accepted about a different charge, but alleging broadly
similar types of conduct. If you accept that other complainer's evidence, you then
have to go further to decide if by reason for (sic) the character, the circumstances,
place and time of each charge the crimes are so closely linked that you can infer that
an accused was systematically pursuing a single course of criminal conduct.
It would not be enough if all that's shown is that the accused had a general
disposition to commit this type of offence. You have to apply this rule with caution,
particularly where there may be a substantial interval of time as there may be in
respect of some of the charges in this case. In such cases, where there is a substantial
gap in time between the alleged offences, you would require to consider any
similarities, as well as the dissimilarities. And eventually find whether or not there
were exceptional or extraordinary features and compelling similarities because of
that gap of time."
[17]
The judge said that the AD had spent some time setting out the similarities in time,
character and circumstance. He did not consider that it was for him to repeat what the AD
had said, but he did ask the jury to take what the AD had said into account. He continued:
8
"If there are any significant differences in the circumstances of individual charges, it
doesn't mean that you can't find that there is a mutual corroboration, but the
differences would form part of ... the total evaluation as to whether or not there is a
single course of conduct."
Defence counsel had not suggested that the jury could not find corroboration for some of the
charges, but it was for them to decide. The judge continued:
"When examining charges or groups of charges to determine if you find mutual
corroboration it is not the legal name for the crime which matters so much. What is
important is the underlying similarity of the conduct described in the evidence, not
the label which is being attached to it on the indictment which must be examined in
order to see whether the rule can be applied."
[18]
The judge went on to define the individual offences. When doing so, the judge made
sporadic references to mutual corroboration. In relation to CL, if they found her reliable, the
jury could look to "other charges alleging assault, and the general other charges (sic) ... to
provide mutual corroboration". On the assault on a complainer, LG (c 5), of which the
appellant was acquitted, he said that a jury could look at the mutual corroboration "that's
available ... by considering other assaults". The judge noted that, in relation to the rapes,
the Crown argued that mutual corroboration could be found from the other charges
"particularly rape, but also those involving other matters spoken to by other complainers of
a similar nature". If a complainer were accepted in relation to the rape charges, the jury
"can look to other charges of a similar nature for mutual corroboration, so far as the
Advocate depute is concerned". On the breach of the peace charge involving CL (c 8), the
jury could look "to the other charges of a similar nature for mutual corroboration". On
abduction the judge told the jury that there was corroboration available when "you look at
all the other charges".
9
Submissions
Appellant
[19]
The trial judge erred in refusing a submission of no case to answer in respect of
assault charges 19 and 20. There was no corroboration of them. The only other assault
charges which the jury could consider were charges 2 and 6 in respect of CL. There was a
gap of 9 years between the two blocks of charges. That was an inadequate basis to
demonstrate a course of criminal conduct systematically pursued. There had also been an
intervening relationship in which no physical assaults had been committed. The Crown had
argued that sexual assaults could be used to corroborate the physical assaults. That was
[20]
The judge had failed to direct the jury adequately on mutual corroboration. He had
said in his opening remarks that he would give them detailed and full directions on this
subject. He had not done so. He had not assisted the jury in relation to which charges might
be used to corroborate which other charges. There was no attempt to provide the jury with
a route to verdict having regard to the different nature of the charges. Whilst general
directions may be sufficient in many cases, regard had to be had to the particular
circumstances. The physical assaults in a non-domestic context could not corroborate the
rapes (Duthie v HM Advocate at para [18]) or sexual assaults outwith the domestic context
(Reilly v HM Advocate 2017 SCCR 142 at para [35]). In maintaining that the existence of a
controlling element was present in each charge, the AD had misunderstood what was
needed for corroboration. This was not a case in which all that was required was
corroboration of a course of conduct (cf Domestic Abuse (Scotland) Act 2018, s 1).
[21]
The judge had, when defining the various charges, said that the Crown were
maintaining that there was mutual corroboration available "when you look at all the other
10
charges". That was a practical example of where the jury could have fallen into error. The
general directions in relation to charges where there was a substantial gap in time were
vague, apt to confuse and inaccurate. It was necessary in all cases to consider similarities
and dissimilarities. In some of the charges the appellant was not in a relationship with the
complainer. The jury's verdict was not understandable or discernible as the judge had not
explained how mutual corroboration applied.
Respondent
[22]
The judge had not erred in rejecting the no case to answer submission on the two
charges of assault. Duthie v HM Advocate did not relate to such a situation. Charges 19 and
20 were both physical assaults. Corroboration was available from the evidence of other
complainers who spoke to violent assaults upon them. This included the evidence on
charges 12 and 16.
[23]
It was accepted that the trial judge may have been overwhelmed by the multiplicity
of charges. It might have been helpful if the indictment had been pared down. It was also
accepted that it was the function of the judge to direct the jury on how mutual corroboration
applied in the particular case. The trial AD's broad approach was not appropriate.
[24]
It was the course of conduct as a whole which had to be examined (McA v HM
Advocate 2015 JC 27 at para [11]). What mattered was the underlying similarity of conduct;
not the name attached to the crime (MR v HM Advocate 2013 JC 212 at para [19]). Testimony
about physical assaults could not corroborate rape (Duthie v HM Advocate at para [22]). A
campaign of domestic abuse, including sexual offences, could be seen as a course of criminal
conduct systematically pursued (McAskill v HM Advocate 2016 SCCR 402 at para [28]). A
sexual offence of a relatively minor nature could corroborate more serious sexual conduct
11
(Duthie v HM Advocate at para [20]). The trial judge had admittedly erred in suggesting that
compelling circumstances were required where there was a significant time gap (Duthie v
HM Advocate at para [28]).
[25]
To have gone through every possible combination for the application of mutual
corroboration, when the Crown had already set out the basis upon which it could apply,
would have led to a charge which was unwieldy and would have been apt to confuse rather
than to clarify (JC v HM Advocate [2016] HCJAC 100). The fact that some charges were
sexual offences did not prevent them from being part of a course of conduct of domestically
abusive and controlling behaviour (McAskill v HM Advocate at para [28]). The judge had
drawn the jury's attention to a situation in which there might be significant differences in
the circumstances.
[26]
In any event, no miscarriage of justice had occurred.
Decision
[27]
It is difficult not to have some sympathy with the trial judge. He was left with an
indictment containing 21 charges; some of which, in High Court terms, were relatively
minor. Others were very serious. There were eight crimes to define: sexual assault, assault,
abduction, breach of the peace (at common law and under statute), rape (at common law
and under statute), and stalking. Most important, he required to deal with the Advocate
depute's apparently conflicting approaches to mutual corroboration. It is not surprising
that, ultimately, the charge ran to over 100 pages.
[28]
There is often a risk of misdirection when a judge simply adopts a statement of the
law, which has been expressed by counsel in a speech, as accurate or refers to it in a manner
which suggests that it is accepted as being accurate. Th is danger is apparent here where the
12
Advocate depute was saying, at times in his somewhat meandering speech, that the jury
should look for corroboration of a complainer's testimony in that of another complainer
speaking to a similar charge and, at other times, that they could apply mutual corroboration
to every charge by reason of a recurrent theme throughout all of the appellant's conduct.
His ultimate approach was to lump all the charges together in one course of conduct on the
basis that this theme involved the appellant "exerting control over ... women, and forcing
his will on them". The AD suggested that "the jury could be satisfied that this is all part of a
single course of conduct that [the appellant] embarked on towards these women ".
[29]
When it came to his charge, the judge did give the jury clear and accurate directions
on the general principle of mutual corroboration. These are not challenged. Not only did
the judge instruct the jury that the corroborative conduct had to be "broadly similar", before
they could go on to see if it was sufficiently linked in character, circumstance and time, he
also directed them specifically that a general disposition to commit the type of offence was
not enough. Had he stopped there, and given the jury practical examples of how that
worked in relation to the charges on this indictment, his charge could not have been
adversely criticised. In directing the jury to look for corroboration in the evidence relating to
a similar charge or a charge of a similar nature, such as assault, the judge's charge is
impeccable.
[30]
However, the judge went on to refer to what the AD had said in relation to points of
similarity. Having said that it was not for him to repeat what the AD had said, he asked the
jury to take what the AD had said "into account". What that might be thought to mean is
opaque. Either what the AD had said was correct as a matter of law or it was not. The judge
had to direct the jury accordingly. The judge referred to the jury evaluating whether there
13
was a "single course of conduct". This suggests an acceptance that the AD's contention that
mutual corroboration could be found in every charge, was correct. It is not.
[31]
In Duthie v HM Advocate 2021 JC 207, which was decided after the trial in this case, it
was explained (LJG (Carloway), delivering the opinion of the court, at paras [20] to
[28],following MR v HM Advocate 2013 JC 212 at para [17] and McAskill v HM Advocate 2016
SCCR 402 at paras [26] to [28]) that a combination of sexual and physical abuse by an
accused within one family unit could, if the underlying similarities were present, afford
mutual corroboration of a combination of sexual and physical abuse by the same accused in
another family unit. However, the court expressly did not endorse the proposition that an
act which contained no sexual element could corroborate a sexual assault or rape; the latter
requiring in addition a distinct penetrative element.
[32]
The court in Duthie continued (at para [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."
So, in this case, a complainer's testimony in one of the three rape charges could each only be
corroborated by testimony from one or both of the other rape complainers or possibly from
those complainers who spoke to a similar sexual assault. Even then, given that one of the
rapes (c 17) and some of the sexual assaults occurred outwith the domestic setting, the jury
would have to have considered whether they were sufficiently linked, in terms of
circumstances, to merit the application of mutual corroboration with the rapes and sexual
assaults perpetrated by the appellant on his partners. One complainer's testimony of sexual
or physical assaults in the charges involving the appellant's partners could be mutually
corroborated by evidence of the same type of conduct coming from another partner.
14
However, several of the charges on this indictment did not involve a partner. Sexual
assaults on a stranger in a bus, at a bus stop or in the street may often not amount to
corroboration of a physical assault in a domestic setting.
[33]
In short, the judge ought to have been far clearer in directing the jury, under
reference to the particular charges, on which testimony was capable of mutually
corroborating which other testimony on different charges. This would not require a charge
by charge analysis and could be done by reference to groups of charges or the types of
conduct in the libel. It was not appropriate for the judge simply to point the jury to what the
AD had said. The judge had to put into his own words how mutual corroboration could
operate in a case which included charges of physical and sexual assault in a domestic
context, rapes in both a domestic and non-domestic context, sexual assaults in a non-
domestic context, breaches of the peace and the stalking of both partners and non-partners.
[34]
Subject to the lapse described in relation to the adoption of the AD's speech , this
attempt at grouping seems to have been what the judge was initially trying to say when he
referred to corroboration requiring to come from "broadly similar types of conduct", matters
"of a similar nature", "the other similar charges", or "other similar incidents". He appears
to have been beguiled by the AD's theory on controlling behaviour towards women. The
problem of the relevance of the recurrent theme remains significant and must be regarded as
a misdirection in so far as it affected the critical directions on corroboration.
[35]
However, standing the fact that the jury must have believed, and found reliable, the
many complainers in the charges of which the appellant was convicted, had they been
properly directed, the jury would have been bound to find that corroboration of each offence
was present. This would have included corroboration of the evidence on charges 19 and 20
which could be found in that relating to charges 2 and 6; the judge's directions on the need
15
for exceptional circumstances given the time gap being erroneous (Duthie v HM Advocate at
para [28]). The jury's verdicts are readily explicable by their acceptance of the complainers'
testimony in relation to the facts of each charge. It cannot be said that a miscarriage of
justice has occurred.
[36]
The appeal must be refused.
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