Appeal Against Conviction By Kh Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Bracadale,Lady Cosgrove |
| Neutral Citation | [2015] HCJAC42 |
| Court | High Court of Justiciary |
| Date | 29 May 2015 |
| Docket Number | HCA/2015-000530XC |
| Published date | 11 June 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
HCA/2015-000530XC
Lord Brodie
Lord Bracadale
Lady Cosgrove
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL AGAINST CONVICTION
by
KH
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Keenan, sol adv; Capital Defence Lawyers, Edinburgh for Allans, Solicitors, Lerwick
Respondent: Erroch, AD; Crown Agent
29 May 2015
Introduction
[1] This appeal is concerned with the application of the principle discussed in the case of Moorov v HM Advocate 1930 JC 68 (“the Moorov doctrine”).
[2] On 6 June 2014 at the High Court at Aberdeen the appellant was convicted by majority verdicts of two charges of rape (charges 1 and 7); he was also unanimously convicted of two charges of assault (charges 2 and 5) and of a single charge of culpable and reckless conduct (charge 4). A statutory charge of sexual assault (charge 8) was found not proven by the jury and two charges of breach of the peace (charges 3 and 6) were withdrawn by the Crown. The trial judge continued the case for the preparation of reports and on 5 August 2014 imposed a cumulo sentence of seven years’ imprisonment. The appellant now appeals against his conviction on charges 1 and 7. There is no appeal on sentence.
[3] Charge 1 libelled a rape as having occurred between 1 and 4 November 2004. Charge 7 libelled rapes on various occasions between 7 September and 24 October 2012.
Summary by trial judge of evidence relating to charges 1, 2, 5 and 7
Charge 1 - X
[4] The first complainer was X. She first met the appellant through her sister on her fourteenth birthday in 2003. At that stage the appellant was nearly 22. Thereafter the appellant spent time with the family initially at least as a friend of X’s sister. However, as X put it in evidence, she had “the hots” for him; she found him attractive. According to X they started kissing when she was still 14. A sexual relationship started when she was 15. At first X would climb out of the bedroom window in her parents’ house to rendezvous with the appellant in various places in their local town. However before her 16th birthday X left home and moved into a shared flat with the appellant. During this time there was regular consensual intercourse.
[5] On one occasion during consensual sexual intercourse X said that the appellant was being rough and using his fingers as well (as his penis). When he did this she was injured. She realised that something had happened and thought that she might be bleeding. She said “Hold on, I think I am bleeding” and followed that with “Stop. I am bleeding.” X told the court that he did not stop but replied “Hold on baby I am nearly finished. Just let me finish.” Despite her pleas to stop he carried on having sexual intercourse. X went to the bathroom. She was bleeding from her vagina. The appellant took her to the local hospital where she was examined and found to have a vaginal tear. She was given some gel and advised not to have sexual intercourse for 2 to 3 weeks. This incident constitutes the rape in charge 1.
[6] When they got home, using the gel to numb the pain, she and the appellant had sexual intercourse the same night. It was consensual. X was 15 at the time.
Charge 2 - X
[7] X spoke to various occasions on which she said that she had been assaulted by the appellant. She spoke to regular occurrences every two to three days usually by shaking her or nipping her on the leg. However, there were instances of more serious assaults including one occasion when he had pushed her, she had fallen and she had been rendered unconscious. X’s medical records disclosed that on a number of occasions she had attended her general practitioner and complained of being injured following assaults by her boyfriend. Bruises were seen on her upper arm and shoulder and the records described the appellant as being “very violent”.
Charge 5 - Y
[8] The second complainer, Y, was a single mother with, at the time she met the appellant, children from a previous relationship. She was 24 when the relationship with the appellant started. She told the court that at first it was very caring and affectionate but it then became very controlling and possessive. She said that the appellant had an opinion on everything she did, whom she saw and where she went. He had bought her a mobile phone even although she had one of her own. She told the court that this became a major problem because he would call or text her hundreds of times to find out what she was doing, where she was and whom she was with. If she did not answer a text immediately then he would phone and ask her why she had not replied.
[9] Y also told the court of being assaulted by the appellant on numerous occasions by nipping her on the leg or arm. On one occasion there was a more serious assault.
[10] The relationship came to an end in December 2008. It was Y who decided to end the relationship. The appellant was very unhappy at this and tried by various means to persuade her to take him back. At one point he had asked her whether if he came clean and told her the truth about how he had behaved towards X, would she then consider taking him back. Y said she had no intention of taking him back but listened to the appellant anyway. He told her that he had been horrible and mean to X. He said that he had punched her and nipped her and on one occasion had knocked her out.
Charge 7 - Z
[11] The third complainer was Z. She was a friend of the appellant’s sister. She is also a single mother having given birth to a child a few months before she met the appellent. She was 24 years old at the date of trial. She met the appellant in September 2012 when she was on a night out with friends. They talked and at the end of the night the appellant asked her for her phone number. At 3am she got a text message and arrangements were then made to meet up the following day. They started going out together. Z said that there was daily contact by telephone call and text messaging. In the second week of the relationship the appellant bought her a mobile phone. He texted her a lot and it became more frequent. He would ask what she was doing and where she was. She would not always reply or call back and this would annoy him.
[12] Z said that on occasions when she and the appellant had sexual intercourse she began by saying no but he was very persistent. On one occasion they were in the living room of the house at about 9 or 10 at night. He said that he wanted sex. She said that she was not in the mood and said no. However he was very persistent. She felt threatened by him as she was not sure what he was capable of. She gave in and went ahead with it. This happened on other occasions. She was in the habit of having a shower at night. The shower was in the wet room and the appellant would often come in with her. She accepted that on occasions she had consented to sexual intercourse in the shower.
[13] It was in the shower that the first non-consensual intercourse took place. It was about three weeks after their relationship started. Z had gone to have a shower and the appellant had come in with her. He said he wanted to have intercourse. She said no and tried to back away. He turned her to face up against the wall in the shower and penetrated her vagina from behind. She said no twice and then repeated it three or four times though not so loud. She said it did not last long and he did not ejaculate; she had managed to move away. She came out, dried herself and got dressed. She felt scared because she had said no and he had continued despite that.
[14] On the second occasion when intercourse was not consensual Z said that she was in bed asleep. She awoke to find the appellant lying on top of her. She said “No I don’t want this.” He said “okay” but then just carried on. She tried moving but he was lying with his legs positioned outside hers. She had tried wriggling but without success. She had been wearing pants in bed but he had moved them to one side to penetrate her. She said that she was scared of him.
[15] Z brought the relationship to an end in the third week of October 2012.
Grounds of appeal
[16] The grounds of appeal are directed at the sufficiency of the evidence to support the convictions for rape. In the note of appeal they are set out as follows:
“It is submitted that on the evidence led the jury were not entitled to apply the doctrine of mutual corroboration in relation to charges 1 and 7 for the following reasons:-
1. The period of time between the two charges was substantial, being a period of almost 8 years. Whilst it could not be said that this period of time alone precludes the application of the doctrine of mutual corroboration, it should be noted that in the context of this case, the evidence led disclosed that the appellant had been involved in at least one intervening relationship between his relationships with the complainer in charge 1 and the complainer in charge 7. In particular, the appellant had been involved in an intervening relationship with the complainer in charge 5 for a significant time period. Whilst she had made allegations of violence against the appellant, there had been no allegations of conduct of a sexual nature. Accordingly, it could not be said that the conduct in charges 1 and 7 represented a course of conduct systematically pursued by the appellant.
(ii) In addition, there were differences in the circumstances of the offences. In relation to charge 1, this had commenced as an incident of consensual sexual intercourse during which the complainer had withdrawn her consent but the appellant had continued to engage in sexual intercourse with her. On the other hand, the circumstances of the two incidents described by the complainer in charge 7 were both incidents where there had been no consent at all to the sexual intercourse described.
It is accepted that there were certain similarities between the incidents, in particular with regard to...
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