HM Advocate v SM (No 2)
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Menzies,Lord Brodie |
| Judgment Date | 06 June 2019 |
| Neutral Citation | [2019] HCJAC 40 |
| Court | High Court of Justiciary |
| Date | 06 June 2019 |
| Docket Number | No 20 |
[2019] HCJAC 40
Lord Justice-General (Carloway), Lord Menzies and Lord Brodie
B v HM Advocate [2008] HCJAC 73; 2009 JC 88; 2009 SLT 151; 2009 SCCR 106; 2009 SCL 266
Donegan v HM Advocate [2019] HCJAC 10; 2019 JC 81; 2019 SCCR 106; 2019 GWD 10-134
MR v HM Advocate [2013] HCJAC 8; 2013 JC 212; 2013 SCCR 190; 2013 SCL 338; 2013 GWD 4-115
McMahon v HM Advocate 1996 SLT 1139
Moorov v HM Advocate 1930 JC 68; 1930 SLT 596
Reynolds v HM Advocate 1995 JC 142; 1996 SLT 49; 1995 SCCR 504
Justiciary — Evidence — Rape — Corroboration — Mutual corroboration — Allegations of rape occurring seven years apart, one accomplished by coercion of a partner and the other by immediate physical violence over a stranger — Whether capable of constituting mutual corroboration
SM was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling a charge of assault, abduction and rape. The accused pled not guilty and a trial proceeded before Lady Rae and a jury at the High Court of Justiciary in Glasgow. On 23 May 2019, a submission of no case to answer to part of the libel under sec 97 of the Criminal Procedure (Scotland) Act 1995 (cap 46) was upheld. The Crown appealed under secs 107A(1)(a) and 110(1)(e) of the 1995 Act.
On 29 May 2019, the court (Lord Justice-General (Carloway), Lord Menzies and Lord Brodie) allowed the appeal, and remitted the case to the trial judge to address an alternative basis of the submission of no case to answer ([2019] HCJAC 39; 2019 JC 176).
On 31 May 2019, the alternative submission of no case to answer was upheld. The Crown, again, appealed under secs 107A(1)(a) and 110(1)(e) of the 1995 Act.
An accused was charged with the abduction, assault and rape of his former partner on an occasion in 2007. He was alleged to have assaulted the complainer by striking her in the face such that she fell to the ground, forcing her into a motorcar and driving her to a secluded location where he raped her. The Crown relied on mutual corroboration. A docket narrated an incident of rape of a woman unknown to the accused, alleged to have occurred in England in 2014, which involved the accused punching a woman in the face and knocking her to the ground, then carrying her off to a secluded location where he raped her. A no case to answer submission was advanced, contending that differences between the evidence of the charged incident and the docketed incident meant that mutual corroboration was inapplicable. The submission was upheld. The Crown appealed.
Held that: (1) for mutual corroboration to apply, it was not enough to catalogue some similarities between two crimes, and to dismiss others, and there required to be an overall similarity in the conduct such as to be component parts of one course of conduct persistently pursued by the accused (para 8); (2) on no possible view could the two episodes be regarded as component parts of a single course of conduct persistently pursued by the accused, given the seven-year gap, the...
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