Duncan William Beggs Or Dreghorn Against Heer Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Justice Clerk,Lady Cosgrove |
| Neutral Citation | [2015] HCJAC 69 |
| Date | 07 August 2015 |
| Year | 2015 |
| Published date | 07 August 2015 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2014 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 69
HCA/2014/3408/XC
Lord Justice Clerk
Lord Malcolm
Lady Cosgrove
OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
DUNCAN WILLIAM BEGG or DREGHORN
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: McConnachie QC, Findlater; Faculty Services Ltd (for Craig Wood, Solicitors, Inverness)
Respondent: R Goddard AD; the Crown Agent
7 August 2015
Introduction
[1] On 24 June 2014, at the High Court in Aberdeen, the appellant went to trial on an indictment containing 43 charges (a plea of not guilty to one charge (originally charge 37) having been accepted). Apart from charges in which children were involved, there were 3 principal complainers. The first only featured in one of the charges (1), which libelled a rape sometime in the years 1984-87. The appellant was, in due course, acquitted of that charge and no issue arises from that. On 4 July, after the conclusion of the Crown case, the trial judge sustained a no case to answer submission in respect of two charges (29 and 36). The advocate depute withdrew 16 charges (4-6, 8, 16, 22-25, 30-31, and re-numbered charges 38-39, 41-43). This left, first, 17 charges (2-3, 7, 9-15, 17-21, and re-numbered 37 and 40), all of which involved the second complainer, VH. These libelled: rape (3, 10, 14, 15, 19, 20 and re-numbered 40); indecent assault (2, 7, 9, 11-13, 18 and 21); and assault (17, and 37). The appellant was convicted of only 4 of these charges: 2 rapes (3 and 20); 1 indecent assault (7); and 1 assault (37). He was acquitted of 3 charges of lewd practices primarily involving children (26-28), although the supporting testimony on these charges came from VH. There remained, secondly, 4 charges (32-35) involving the third complainer, SM, being: rape (32 and 34); assault (33); and indecent assault (35). The appellant was convicted of all 4 of these offences.
[2] The appeal is about whether the jury’s verdicts were unreasonable. The essence of the complaint is that it was not reasonable for the jury to accept the evidence of VH on only 4 charges, standing their apparent rejection of her evidence in respect of the other 13. Without accepting this evidence, the jury would have been unable to convict the appellant on any charge involving either complainer, standing the accepted need for mutual corroboration. Although, at the hearing of the appeal, it was stressed that the appellant need not go that far, the Note of Appeal contains a particularly serious allegation about the conduct of the jury as follows:
“… the jury have selected at random certain charges spoken to by [VH] purely to allow them to convict of the charges involving [SM]”.
The broad contention, however, was that the evidence of VH was “wholly lacking in credibility”.
Evidence
SM charges
[3] It is convenient to summarise first the testimony of the third complainer, SM, since it is not disputed that the jury must have accepted her evidence as credible and reliable in its essentials. Miss M had met the appellant in about 1998, when she was 16. She had been allocated local authority accommodation in Wick. This was used as a drinking den by, amongst others, the appellant and his then wife, the second complainer, VH. Miss M’s relationship with the appellant began in earnest in the following year, by which time he was about 32. She fell pregnant to him. They moved to an address in Lybster. The relationship quickly soured because of the appellant’s domineering nature and excessive alcohol consumption.
[4] Miss M spoke to being physically assaulted by the appellant over the years 1998 to 2004 (charge 33), when she tried to intervene in arguments between the appellant and his children. He would punch and slap her and pull her hair. This happened three or four times a week.
[5] In about May 2000 (charge 32) the appellant had been arguing with the complainer in the house. The complainer, who was only wearing a nightie, told the appellant that she was going to bed. He grabbed her and ripped her nightie off. He threw her out of the back door and locked it, leaving her outside naked. He eventually let her back in. He again grabbed her, pushed her onto the floor, raped her and penetrated her anally. There was no libel for the latter which, at the time, did not constitute rape.
[6] A few months later (charges 34 and 35), the complainer was again in the house with the appellant, who was “half drunk”. She attempted to leave the house, but he stopped her. He pushed her and she fell onto the side of a couch. As she tried to get up, he grabbed her arm and held it behind her. She was bent over the couch. The appellant pulled down her jogging bottoms, raped her and penetrated her anally (libelled separately as an indecent assault).
VH charges
[7] The charges involving VH libelled a catalogue of extreme behaviour consisting of sexual and physical assaults and threats to her children. The first chapter (charges 2 to 5) related to conduct occurring in the complainer’s home some time between March and June 1990.
[8] Charge 2 libelled “an occasion” on which the appellant was alleged to have stripped the complainer, penetrated her anus with his penis and penetrated her anus and vagina with a whisky bottle. Charge 3 was also libelled as occurring on “an occasion”, but it was the same occasion as that in charge 2. Some of the averments were deleted by the advocate depute, but what remained included physical violence by repeated punching and kicking and repeated rape. The rape charges included averments of cigarette burns and pouring whisky over the complainer. Charges 4 and 5 each again referred to “an occasion” but, once more, the libel related to activities following on from the events in charges 2 and 3. They involved detaining the complainer in her flat for 5 days and assaulting her infant son by, amongst other things, holding him over hot cooker rings and hanging him out of a window by using a “ligature”.
[9] The complainer’s evidence was that she had only known the appellant vaguely at the time. He had appeared at her door asking to borrow a lighter. He had entered the flat uninvited and, in terms of the libel, raped her repeatedly and committed the assaults on the infant. A striking feature of the evidence was that the complainer had married the appellant a short time (weeks or months) after this apparently quite appalling treatment. In due course, the appellant was found not guilty of the indecent assaults in charge 2, but convicted of the rape and related conduct in charge 3. The Crown had withdrawn charges 4 and 5, as they did also charge 6, which alleged further violence towards the infant.
[10] Charges 7 and 8 related to one indecent assault on the complainer (including anal penetration) in January 1991 (7), locking her in a boiler room cupboard and detaining her in her flat for several weeks (8). The Crown withdrew the detention charge and the jury convicted of the assault.
[11] The appellant was acquitted of charges 9 to 15 and 17 to 19, which libelled conduct later in 1991. Charges 9 and 10 again related to a single incident, this time in March 1991. They involved anal penetration (9) and rape (10) on the communal stair outside the complainer’s flat. Charge 11 libelled a separate incident occurring inside the flat on 18 May 1991, involving anal penetration accompanied by threats to electrocute the complainer with wires inserted in a socket. Charges 12 to 15 and 17 involved episodes of sexual violence from 20 to 31 May 1991, all at Raigmore Hospital, Inverness, when the complainer had just given birth to her second child. Charges 18 and 19 involved a single incident of rape and anal penetration on a bus to Wick from Inverness. The complainer had spoken to these offences occurring on the stairs down to the toilet at the back of the bus.
[12] Charge 20 was described by the appellant as a “catch-all”. It libelled rape on various occasions throughout the period of 1 March 1990 to 30 August 2003 at the addresses occupied by the complainer (including that in charge 3) and in certain open air and public places in Wick. The jury convicted the appellant of this charge, albeit acquitting him of the more specific libels on the indictment. They convicted him of a similar “catch-all” charge (the re-numbered charge 37) which libelled physical assaults over the same period and at the same locations. On the other hand they acquitted of a similar general libel (charge 21) of repeated indecent assaults (anal penetration).
[13] The final charge (40, originally 41) was a rape allegation, said to have occurred in a public street after the complainer had lost consciousness, having been pushed to the ground. The appellant was acquitted of this.
The testimony of VH
[14] The court has had the benefit of a full transcription of VH’s testimony. It is worthy of some remark that her examination and cross-examination took up almost 3 court days. The context is the questioning of a woman with clear vulnerabilities, possibly caused by the nature of events which were alleged to have occurred between 10 and 24 years prior to her appearance in the witness box before a jury. At an early stage in her examination in chief, it is relatively clear that she was struggling with chronology and in relation to which specific acts fitted into which particular incidents. There is an overall impression, based only on reading the printed page, of a witness who is generally attempting to answer every question in a positive manner, rather than acknowledging any deficiencies in recollection. On the second day of her examination-in-chief, she attempted to explain, in relation to the previous day’s testimony, that:
“… I think I’ve been just putting too much into trying to do my best but I’d say I’m panicking at the same time or saying things wrong” (day 2 p 10).
[15] Cross-examination opened (p 36) with a direct salvo rather than a question,...
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