M.r. V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Brodie,Lord Carloway,Lord Mackay of Drumadoon,Lord Bracadale |
| Judgment Date | 16 January 2013 |
| Neutral Citation | [2013] HCJAC 8 |
| Date | 16 January 2013 |
| Court | High Court of Justiciary |
| Docket Number | XC616/11 |
| Published date | 16 January 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Mackay of Drumadoon Lord Menzies Lord Brodie Lord Bracadale | [2013] HCJAC 8 Appeal No: XC616/11 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by MR Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: A Ogg, Solicitor Advocate; McCusker McElroy & Gallanegh, Paisley
Respondent: A Di Rollo, AD; the Crown Agent
16 January 2013
[1] On 19 August 2011, at the High Court in Edinburgh, the appellant was convicted of ten charges involving sexual offences against three daughters, two nieces and a daughter-in-law. The significant libels, for purposes of the main argument in the appeal, are as follows:
"(4) on various occasions between 1 April 1978 and 1 October 1978 ... at ... Cottage [G] Estate, Edzell, Angus ... and in a motor vehicle on unclassified roads, tracks and land on said (G) Estate ... you ... did assault [DB], born ... December 1961, your daughter, ... and did induce her to sit on your knee, rub your erect private member against her body, handle her naked breasts and private parts, remove her clothing, lie her on your bed, lie on top of her and place your naked private member against her naked private parts and tell her that you were going to have sexual intercourse with her and would ejaculate onto her;
(6) on an occasion between 1 June 1973 and 30 August 1973 ... on an unclassified road near to the A73 ... you ... did assault SG, your niece, born ... January 1962 ... remove her clothing, climb on top of her, place your private member against her private parts and rape her, to her injury".
In relation to certain subsidiary arguments (infra), charge (11), which involved the same complainer as in charge (6) (ie the appellant's niece [SG]) was a physical assault in 1983 or 1984 whereby, with intent to rape, the appellant had entered the complainer's house uninvited and pushed her to the floor. Charge (14) libelled an indecent assault upon [AB] in 1986 or 1987 at the complainer's home. The assault also involved a push. Charge (15) libelled lewd, indecent and libidinous practices from 1992 to 1994 at the [G] Estate against the appellant's niece [LS], when she was 14 or 15, including inducing her to sit on his knee and rubbing his private member against her body.
[2] On 23 September 2011 the appellant was sentenced to a total custodial period of eleven years, the period on charge (4) being three years and that on charge (6) being a consecutive seven years (see infra).
The Trial
[3] The events in charge (6) are first, chronologically. The complainer, who is the appellant's niece, was 11 years old when she left primary school in 1973. During the summer holidays, in August 1973, it was arranged that the appellant would take the complainer to the local secondary school to see what class she would be in for the following term. He had taken her to the school by car. On the way back to her home in Lanarkshire, the appellant had said to her that he "had to go a message". He drove off the main A73 road, down a track and into a field. He stopped the car and jumped onto the front passenger seat where the complainer had been sitting. He took his trousers down, pulled down the complainer's shorts and pants, and raped her. Nothing was said during the episode. The complainer was crying. The appellant eventually said, "You're a big girl now, just be quiet". He took her for an ice-cream before driving her home.
[4] The complainer on charge (4), who is the appellant's daughter, gave evidence about an incident which occurred when she was about to go to college and would have been about 16. She was at home when the appellant appeared and said that he was going to have sex with her. He stated that he was not going to ejaculate inside her, that he would do so on her stomach and that she should not worry. She said that she felt his penis touching her vagina and believed it to be erect. The appellant must have been on top of her, although she could not remember that. He had just moved away and nothing further had happened.
[5] The appellant made a submission at the conclusion of the evidence, relative to charge (6), to the effect that there was insufficient evidence of the rape element in the charge since rape could not be corroborated by evidence of other "lesser" crimes, such as the indecent assault libelled in charge (4). The trial judge repelled that submission. When he came to directing the jury, he gave them the standard directions on corroboration and proceeded to provide specific directions on the application of the principle of mutual corroboration. In particular, he advised the jury that they could apply mutual corroboration if they were satisfied that offences, spoken to by different complainers, were sufficiently closely linked in nature, circumstances and time as to indicate that they were part of a single course of criminal conduct pursued by the accused. In relation to the rape element in charge (6), the trial judge directed the jury that, even if they found the complainer credible and reliable in her account of being raped, it would be open for them to take the view that the rape was of a different character from the indecent assaults libelled in the other charges, such that it could not be regarded by them as part of the same course of conduct. In that event, the jury would be bound to acquit of the rape. On the other hand, the trial judge continued (charge, p 48):
"Equally, it would be open to you to take the view that rape is merely a different degree of essentially the same course of sexually abusive conduct against younger females in the family circle assuming, of course, you found the course of conduct established. In that event you would have corroboration and you would be entitled to convict, I say.
However, and this is another qualification, I think there would be difficulty, as a matter of law, in finding a course of conduct that extended to rape if there was not at least one other incident forming part of the course of conduct involving a different victim that at least approached rape. On that basis, I must direct you that, in the circumstances of this case, you would not be entitled to convict on charge 6 of rape unless you were also to find charge 4 of assault on [D] while naked on the bed etc. established to your satisfaction".
Submissions
Appellant
[6] The first ground of appeal is that there was insufficient evidence to corroborate the complainer's evidence of rape on charge (6). In particular, the evidence on the assault charge (4) could not provide that corroboration, given the dissimilarities in time, character and circumstances. In particular, the evidence of indecent assault on charge (4) could not be used to corroborate an incident involving penetration or sexual intercourse, as was libelled in charge (6).
[7] For the principle of mutual corroboration to operate, it was necessary that the charges be "the same in kind" (Moorov v HM Advocate 1930 JC 68, LJG (Clyde) at 74 and 75). The crimes had to be "truly ... the same" (Hume: Commentaries ii, 385; Alison: Practice, 552; Tait: Evidence (3rd ed), 438; Dickson: Evidence (Grierson ed), II, paras 18.09 and 18.10). The law had been correctly set out in the dissenting Opinion of Lord Eassie in B v HM Advocate 2009 JC 88 where he said (at para [30]) that the charges had to involve the same crime "in any reasonable sense". There had been no argument in HM Advocate v McDonald 1928 JC 42 that offences ought to be grouped into different categories and that the lesser could not corroborate the greater. Such grouping was approved in Moorov (supra), where the trial judge (Lord Pitman, at 69) and the Lord Justice Clerk (Alness, at 78)) divided the offences into three categories: assault; indecent assault; and attempt to ravish (see also Lord Sands at 91; Lord Blackburn at 93; and Lord Morison at 94).
[8] The requirement that the crimes under consideration be "the same" was emphasised in HM Advocate v Cox 1962 JC 27 (Lord Hunter at 29 under reference to Ogg v HM Advocate 1938 JC 152). In HM Advocate v Kennedy, 5 December 1963, High Court, unreported (referred to in Reid: "An extension of Moorov" (1963) 79 SLR 221), a charge of sodomy on a boy was deemed mutually corroborative of charges of lewd and libidinous practices against three girls. This appears to have been because the trial judge (Lord Migdale) took the view that offences against children were in a particular category. Macphail (Evidence, para 23.33) disagreed with the result in Kennedy and preferred that in Cox (supra) and HM Advocate v WB 1969 JC 72. In WB the Lord Justice Clerk (Grant, at 73 to 74) held that evidence of lewd and libidinous behaviour could not corroborate a charge of incest, because the latter was a much more serious offence. PM v Jessop 1989 SCCR 324,...
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