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Donegan v HM Advocate: A Step in the Right Direction for Female Complainers in Sexual Offences?

Document Cited authorities 3 Cited in Related
Vincent
Published date01 September 2019
Date01 September 2019
Pages406-411
DOI10.3366/elr.2019.0577

Philip Donegan lodged an appeal against two convictions of rape under section 1 of the Sexual Offences (Scotland) Act 2009, pertaining to two female complainers.1 This appeal was argued on the grounds that: (i) the Moorov doctrine should not have been applicable given the differences between the two complaints and that (ii) complainer A lacked credibility to such an extent that no reasonable jury would be able to accept her evidence as truthful.

THE <italic>MOOROV</italic> DOCTRINE

The Moorov doctrine2 allows for corroboration to be offered by special means: that two or more charges can mutually corroborate one another if sufficiently connected. Modern interpretation of the doctrine has dictated that this similarity must be in terms of time, place and circumstance.3 Although not limited in application to sexual crimes, it has particular significance within this category of offences given the obvious problems of corroborating acts which are likely to have taken place in private between two individuals with competing accounts of the same facts.

In response to the appellant's argument, the court in Donegan recognised the different circumstances advanced by each of the two female complainers: complainer A's complaint pertained to vaginal, anal and oral rape followed by denial from Donegan of any criminality and a refusal to accept the significance of the incident (despite complainer A's visible distress). Complainer B detailed consensual vaginal intercourse which then continued after consent had been withdrawn, followed by Donegan's contrition and acknowledgement (witnessed by a third party) of the breach of trust which had occurred. The court's view was that, despite these differences, unity could be satisfied by several common features of the two cases: Match.com as the original point of contact between the parties, the ages of the complainers, their ages in relation to the accused, the vulnerability of both complainers, the calculated behaviour of the accused towards both women, his “accelerated development of a sexual relationship in each case”4 and his alcohol consumption at the time of the offences. The court noted the trial judge's approach to dealing with the similarities between the two offences might not “seem entirely conventional” but advised that “the circumstances just reflected human conduct and sexual mores in the modern world”.5

However, it could be argued that the court's approach in Donegan is not especially unconventional. The decision comes against the history of recognition that the doctrine can be applied even where there are differences between cases6 and recent applications of Moorov in particular have adopted the doctrine in a flexible and realistic manner. Particular flexibility has been granted in relation to the length of time which can be accepted between offences as evidenced by S v HM Advocate 7 where an eighteen-year gap was accepted. In accepting this exceptionally long lapse of time between offences, the court...

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