Appeal Against Conviction And Sentence By Andrew Reilly Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lady Paton,Lord Turnbull |
| Neutral Citation | [2017] HCJAC 5 |
| Court | High Court of Justiciary |
| Date | 08 February 2017 |
| Published date | 08 February 2017 |
| Docket Number | HCA/2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 5
HCA/2016/000280/XC
Lady Paton
Lord Malcolm
Lord Turnbull
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL AGAINST CONVICTION
by
ANDREW REILLY
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Findlater; Faculty Services Limited, Edinburgh, for Muir Myles Laverty, Dundee
Respondent: Niven-Smith AD; Crown Agent
8 February 2017
Introduction
[1] This appeal concerns the extent to which the doctrine of mutual corroboration can properly be applied in circumstances where there is a long lapse of time between the relevant charges. On 18 January 2016, at the High Court in Aberdeen, the appellant was convicted after trial of 11 charges involving offences of disorderly conduct, physical abuse and sexual abuse. In addition he was convicted of one offence contrary to the Animal Health and Welfare (Scotland) Act 2006, charge number (7) on the indictment.
[2] Two of the charges of which the appellant was convicted concerned behaviour directed towards dogs that were family pets (charges (4) and (7)). The remaining charges all concerned behaviour directed towards women who were in relationships with the appellant at the time the offences were committed.
[3] The appellant was granted leave to appeal against conviction in respect of charges (1), (2), (3), (5), (6), (8), (9) and (11). Those charges were in the following terms:
“(1) on various occasions between 7 February 1986 and 15 July 1990, both dates inclusive, at [addresses], all Dundee, you […] did assault RG […] your then partner, and did repeatedly shout, swear and utter threats of violence towards her, punch, kick and scratch her on the head and body, seize her by the hair and pull her hair, seize hold of her body and drag her body around and, in particular,
(a) between 7 February 1986 and 1 April 1989 at [an address], Dundee you did present a firearm or imitation firearm and threaten to shoot her;
(b) between 7 February 1986 and 1 April 1989 at [an address], Dundee you did seize her by the hair, throw her to the ground, repeatedly punch and kick her on the head and body, seize her by her leg, pull her into a bedroom, throw her onto a bed, shout offensive remarks at her and utter threats of violence towards her, all to her injury;
(c) between 7 February 1986 and 1 April 1989 at [an address], Dundee you did strike her on the body with a knife, utter threats of violence towards her, all to her injury and permanent disfigurement;
(d) between 7 February 1986 and 1 April 1989 at [an address], Dundee you did force entry to the locked bathroom in said premises, seize her by the hair, repeatedly strike her head against a bath, repeatedly push her head into water and hold her head under water, utter threats to drown her, seize her on the body and shake her violently, all to her injury and danger of life;
(e) between 1 April 1989 and 15 July 1990 at [an address], Dundee you did whilst acting with another, seize and pull her by the hair and repeatedly punch and kick her on the head and body; and
(f) between 1 April 1989 and 15 July 1990 at [an address], Dundee you did throw a plate of hot food at her head and utter offensive remarks at her, to her injury;
(2) between 1 April 1989 and 15 July 1990, both dates inclusive, at [an address], Dundee, you […] did assault RG […] your then partner, and did forcibly remove her clothing, seize her legs and pull her towards you, force her legs apart, lie on top of her, seize hold of her by her arms and restrain her by holding her arms above her head, kiss her, penetrate her vagina with your penis, touch her vagina, penetrate her mouth with your penis, touch her breasts, cause her to vomit and did rape her to her injury;
(3) between 1 April 2005 and 1 September 2005, both dates inclusive, at [an address], Dundee, you […] did assault PB […] your then partner, and did repeatedly punch her on the arm, all to her injury;
(5) between 1 January 2010 and 8 April 2010, both dates inclusive, at [an address], Dundee, you […] did assault PB […] your then partner, and seize her by the body, pull her into a bedroom, throw her onto a bed, lie on top of her, pull her jeans and underwear down to her knees, and force her legs apart, penetrate her vagina with your penis and did rape her;
(6) on an occasion between 1 December 2014 and 26 December 2014, both dates inclusive, at [an address], Dundee, you […] did assault DH […] your then partner, seize her head, penetrate her mouth with your penis, cause her to almost vomit and you did thus rape her: CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009;
(008) on various occasions between 1 September 2014 and 27 December 2014, both dates inclusive, at [addresses], both Dundee, you […] did assault DH […] your then partner, and did pull and drag her by the hair, punch and kick her on the head and body and, in particular,
(a) between 1 September 2014 and 26 December 2014 at [an address], Dundee you did seize her by her hair, pull her to the ground, pull her, repeatedly kick and punch her on the head and body;
(b) between 1 September 2014 and 26 December 2014 at [an address], Dundee you did strike her on the body with a baseball bat, repeatedly kick and punch her on the body;
(c) between 1 September 2014 and 26 December 2014 at [an address], Dundee you did lock her in said premises and detain her against her will and did assault her, seize her by her neck and pin her against a wall, seize her on the body and attempt to push her down a flight of stairs, shout at her and push her on the body;
(d) on 29 October 2014 at [an address], Dundee you did repeatedly strike her to the head and body with a wooden cabinet to her injury and permanent disfigurement;
(e) between 1 November 2014 and 26 December 2014 at [an address], Dundee you did seize her on the body, throw her onto a bed, sit on top of her, place your fingers into her mouth and pull her jaw and lips and repeatedly stamp on her body, all to her injury;
(f) between 1 November 2014 and 26 December 2014 at [an address], Dundee you did strike her on her eye with a key or similar implement to her injury and permanent disfigurement;
(g) between 1 November 2014 and 26 December 2014 at [an address], Dundee you did present a knife at her throat and her hand in a threat to strike same;
(h) between 1 November 2014 and 26 December 2014 at [an address], Dundee you did brandish a knife at her and threaten to stab her; and
(i) on 27 December 2014 at [an address], Dundee you did punch her on the head and drive a Ford Focus motor car, registration mark […], at her, in an attempt to strike her causing her to take evasive action to avoid being struck by said motor car;
(009) between 1 September 2014 and 26 December 2014, both dates inclusive, at [an address], Dundee, you […] did sexually assault DH […] your then partner, in that you did bite her on her genitals to her injury: CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009;
and
(11) between 1 December 2014 and 26 December 2014, both dates inclusive, at [an address], Dundee, you […] did assault DH […] your then partner, lie on top of her, sit on her, pull her pyjama bottoms down, force her legs apart, force your legs between her legs, penetrate her vagina with your penis and you did thus rape her: CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009.”
It was accepted that parts (e) and (i) of charge 8 were each independently established and they were excluded from the appeal.
Background
[4] The Crown approached the case on the basis that it was necessary to find corroboration for each of the charges mentioned by application of the doctrine of mutual corroboration. In presenting the case to the jury the Crown divided the charges into two separate categories or chapters:
Chapter One, the sexual offences, namely: charge (2) a single incident concerning the complainer RG, charge (5) a single incident concerning the complainer PB, and charges (6), (9) and (11) all of which concerned the complainer DH.
Chapter Two, the physical assaults, namely: charge (1) repeated conduct concerning the complainer RG, charge (3) a single incident concerning the complainer PB and charge (8) repeated conduct concerning the complainer DH.
[5] The Crown did not suggest to the jury that the doctrine of mutual corroboration could be applied across the two chapters and the trial judge gave directions in line with the approach taken by the Crown.
[6] Accordingly, on the allegations made in respect of the sexual offences, the lapse in time between charge (2) and charge (5) was about 20 years, the lapse in time between charge (2) and charges (6), (9) and (11) was about 24 years and the lapse in time between charge (5) and charges (6), (9) and (11) was about 4 ½ years.
[7] In relation to the physical assaults, the lapse in time between charge (1) and charge (3) was about 15 years, the lapse of time between charge (1) and charge (8) was about 24 years and the lapse of time between charge (3) and charge (8) was about 9 years.
[8] The trial judge directed the jury that there was sufficient evidence to permit them to convict on each of the crimes within each chapter on the application of the doctrine of mutual corroboration, if they were satisfied that it should be applied. At the trial defence counsel did not make any submission of no case to answer.
Submissions
Appellant
[9] On behalf of the appellant, Mr Findlater, who had not appeared for him at trial, submitted that the Crown had been correct to approach the case in the compartmentalised way in which it did. He submitted that the nature of the charges within each chapter was different, one from the other, to the extent that the doctrine of mutual corroboration would not permit corroboration of any of the sexual charges to be found in the evidence as to the commission of the physical assaults, and vice versa. Taking this approach,...
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