Duthie v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Justice Clerk (Dorrian),Lord Menzies,Lord Pentland,Lord Matthews |
| Judgment Date | 30 March 2021 |
| Neutral Citation | [2021] HCJAC 23 |
| Court | High Court of Justiciary |
| Docket Number | No 23 |
[2021] HCJAC 23
Lord Justice General (Carloway), Lord Justice Clerk (Dorrian), Lord Menzies, Lord Pentland and Lord Matthews
AK v HM Advocate [2011] HCJAC 52; 2012 JC 74; 2011 SLT 915; 2011 SCCR 495; 2011 SCL 744
Adam v HM Advocate [2020] HCJAC 5; 2020 JC 141; 2020 SCCR 123
Advocate (HM) v SM (No 2) [2019] HCJAC 40; 2019 JC 183; 2019 SCCR 262; 2019 GWD 21-322
Advocate's (Lord) Reference (No 1 of 2001) 2002 SLT 466; 2002 SCCR 435
CS v HM Advocate [2018] HCJAC 54; 2018 SCCR 329; 2018 GWD 33-420
CW v HM Advocate [2016] HCJAC 44; 2016 JC 148; 2016 SLT 709; 2016 SCCR 285; 2016 SCL 535
Dodds v HM Advocate 2003 JC 8; 2002 SLT 1058; 2002 SCCR 838
Donegan v HM Advocate [2019] HCJAC 10; 2019 JC 81; 2019 SCCR 106; 2019 GWD 10-134
Du v HM Advocate 2009 SCCR 779
Finlay v HM Advocate [2020] HCJAC 29; 2020 SLT 1309; 2020 SCCR 317
Fox v HM Advocate 1998 JC 94; 1998 SLT 335; 1998 SCCR 115
JC v HM Advocate [2016] HCJAC 100; 2017 SCL 53; 2016 GWD 37-658
JGC v HM Advocate [2017] HCJAC 83; 2017 SCCR 605; 2017 SCL 1042; 2017 GWD 37-567
JL v HM Advocate [2016] HCJAC 61; 2016 SCCR 365; 2016 SCL 715; 2016 GWD 22-393
JM v HM Advocate [2018] HCJAC 30; 2018 SCCR 149; 2018 GWD 19-240
KH v HM Advocate [2015] HCJAC 42; 2015 SLT 380; 2015 SCCR 242; 2015 SCL 674
Kent v HM Advocate 1950 JC 38; 1950 SLT 130
MR v HM Advocate [2013] HCJAC 8; 2013 JC 212; 2013 SCCR 190; 2013 SCL 338; 2013 GWD 4-115
McAskill v HM Advocate [2016] HCJAC 64; 2016 SCCR 402; 2016 SCL 748; 2016 GWD 26-479
McMahon v HM Advocate 1996 SLT 1139
Moorov v HM Advocate 1930 JC 68; 1930 SLT 596
RB v HM Advocate [2017] HCJAC 24; 2017 JC 278; 2017 SLT 714; 2017 SCCR 278; 2017 SCL 545
RF v HM Advocate [2016] HCJAC 52; 2016 JC 189; 2016 SLT 746; 2016 SCCR 319; 2016 SCL 585
Reilly v HM Advocate [2017] HCJAC 5; 2017 SCCR 142; 2017 SCL 347; 2017 GWD 6-84
Reynolds v HM Advocate 1995 JC 142; 1996 SLT 49; 1995 SCCR 504
Stewart v HM Advocate [2007] HCJAC 32; 2007 JC 198; 2007 SCCR 303
TN v HM Advocate [2018] HCJAC 20; 2018 SCCR 109; 2018 GWD 8-99
Watson v HM Advocate [2019] HCJAC 51; 2019 JC 187; 2019 SCCR 291; 2018 GWD 8-99
Williamson v Wither 1981 SCCR 214
Scottish Government, A Criminal Offence of Domestic Abuse (PPDAS62115) (Scottish Government, Edinburgh, December 2015), paras 3.4, 3.6, 3.10 (Online: https://consult.gov.scot/criminal-law-and-sentencing-team/criminal-offence-domestic-abuse/user_uploads/00491481.pdf-1 (1 May 2021))
Justiciary — Evidence — Sufficiency — Corroboration — Moorov doctrine — Charges separated by eight years — Whether habile to mutual corroboration
Justiciary — Evidence — Sufficiency — Corroboration — Moorov doctrine — Charges separated by eight years — Whether special, compelling or extraordinary circumstance required
Justiciary — Evidence — Sufficiency — Corroboration — Moorov doctrine — Whether sufficiency determined by judge or jury
Justiciary — Evidence — Sufficiency — Corroboration — Moorov doctrine — Whether rapes habile to mutual corroboration with physical assaults
Justiciary — Procedure — Charge to jury — Moorov doctrine — Charges separated by eight years — Jury not directed on need for special, compelling or extraordinary circumstance — Whether material misdirection
Justiciary — Procedure — Conduct of trial — Case involving mutual corroboration — Whether sufficiency determined by judge or jury
Mark William Duthie was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate with a total of 34 charges against multiple complainers, of which three were charges of rape and the vast majority of the other charges were domestic assaults. The appellant pled not guilty and the cause came to trial before Lord Boyd and a jury in the High Court of Justiciary at Edinburgh, on 10 February 2020. On 19 February 2020, the appellant was convicted by the jury of 29 charges, including the three charges of rape. The appellant appealed against conviction on the three rape charges to their Lordships in the High Court of Justiciary.
The appeal called before the High Court of Justiciary (Lord Menzies, Lord Turnbull and Lord Pentland) for a hearing on 7 January 2021, on which date the court made avizandum. The cause was then remitted to a bench of five judges.
Section 97 of the Criminal Procedure (Scotland) Act 1995 (cap 46) allows, inter alia, an accused, after the close of the evidence for the prosecution, to make a submission that they have no case to answer on an offence charged in the indictment and on any other offence of which they could be convicted under the indictment.
The appellant was indicted on 34 charges, of which three were charges of rape and the vast majority of the other charges were domestic physical assaults. Seven of the complainers had been in relationships with the appellant at the time of the offences. Six of the complainers alleged domestic physical assaults. None of the domestic physical assaults contained a sexual element. The three rape charges involved two of those six complainers. There was an eight-year gap in time between the rape allegations. There were relationships with other complainers during that eight-year period. The Crown relied upon mutual corroboration in order to prove the rape charges.
The appellant made a submission of no case to answer in respect of the rape charges, submitting that the doctrine of mutual corroboration could not apply. The Crown submitted that all the charges were part of one course of conduct, being humiliation, degradation, and control in a domestic relationship and, as such, the domestic physical assaults could corroborate the rapes. As an esto position, the time-gap of eight years between the rape charges was not too long and the similarities in the character, place, and circumstances of the offences were such that the doctrine of mutual corroboration could apply. If the gap in time called for a special, compelling or extraordinary feature, the nature of the relationships provided that feature. The trial judge repelled the no case to answer submission, holding that the rape charges had to be considered separately from the physical assault charges but that the domestic setting of the rapes could provide a special, compelling, or extraordinary circumstance. Whether the intervening relationships constituted a break in the course of criminal conduct was a matter for the jury.
When directing the jury on mutual corroboration, the judge stated that the rape charges had to be considered separately from the physical assault charges. He gave standard directions on mutual corroboration. The eight-year gap in time was one for which the jury would have to find a special or compelling feature to enable them to apply mutual corroboration. The judge drew attention to the youth and vulnerability of the complainers and the private, domestic, setting of the offences as a possible extraordinary feature. In due course, the appellant was convicted of 29 charges, including the three rape charges. The appellant appealed against his conviction on the three rape charges.
On appeal, it was argued for the appellant that: (1) the rape charges had to be considered separately from the physical assault charges; (2) the gap in time called for an extraordinary or special feature; (3) the domestic nature of the rapes was not such a feature; (4) mutual corroboration could not apply to the rape charges; and (5) sufficiency was a matter of law for the trial judge and the trial judge had erred in leaving the question of a break in the course of conduct, evidenced by the intervening relationships, to the jury.
The Crown argued that: (1) the trial judge had erred in compartmentalising the offences as the physical assault charges and the rapes formed one course of criminal conduct of coercive, domestic offending; (2) whether physical and verbal abuse could corroborate incidents of rape was a matter that should generally be left to the jury; and (3) esto the rape charges were to be considered separately, there had been sufficient similarities between them to allow the application of mutual corroboration.
Held that: (1) the settled law on mutual corroboration was that the testimony of one witness about one crime could be corroborated by a second witness' testimony about another crime where there were similarities in time, place and circumstances in the crimes, such as demonstrated that the individual incidents were component parts of one course of conduct persistently pursued by the accused (para 19); (2) before looking to see whether there was proof of a course of conduct, there first required to be a search for similarities in the time, character, and circumstances of the offences with the underlying similarity of the conduct being important, not the nomen criminis (para 20); (3) the law had traditionally distinguished between sexual and non-sexual behaviour, and rape requiring penetration meant that it was not capable, at least in the circumstances, of being corroborated by evidence which related only to physical assaults (para 21); (4) although a person who was of a controlling disposition might perpetrate a number of different types of crimes against partners, that did not make the offences similar for the purposes of mutual corroboration (para 22); (5) the act of rape in each charge was only capable of being corroborated by both complainers speaking to the rapes, and in particular the acts of penetration (para 23); (6) a no case to answer submission should only be upheld where on no possible view could it be said that the individual incidents were component parts of a course of conduct persistently pursued by the accused, with the court deciding whether there was testimony relative to two or more incidents which, if accepted, contained the requisite similarities such as may demonstrate a course of conduct persistently pursued (paras 24–26); (7) it was not the case that, as a...
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Appeal Against Conviction By Steven Joseph James Stalley
...The Crown had argued that sexual assaults could be used to corroborate the physical assaults. That was incorr ect (Duthie v HM Advocate 2021 JC 207). [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 d......
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Jh Against Hma
...authorities had observed that a special feature ought to be identified in cases involving a significant gap in time. Duthie v HM Advocate 2021 JC 207, while 3 over-ruling these cases, left open the possibility that a direction about special features might be required in particular cases. [7......
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Appeal By Dw Against Hma
...allow the application of mutual corroboration. A submission of no case to answer was repelled, under reference to Duthie v HM Advocate [2021] HCJAC 23, and the conviction on charge 2 was challenged on the basis that the submission should have been upheld. [7] The appellant was sentenced to ......
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Appeal Against Convicton By Dm Against Hma
...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). How ever, he failed to direct them that the sexual charges had to be considered together and separ......