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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
in
APPEAL AGAINST CONVICTION
by
DM
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
2
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
3
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
4
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
5
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.
6
[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)
7
is a moot point, but the direction was favourable to the accused in any event. The appeal
will be refused.
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