A.D. v. Her Majesty’s Advocate [2017] HCJAC 84

Note of appeal against conviction:- The appellant was convicted after trial at Edinburgh High Court of two charges:- (a) the anal rape of a male child under the age of 13 on various occasions during a 9 month period in 2014 contrary to section 18 of the Sexual Offences (Scotland) Act 2009 (charge 1); and (b) the sexual assault of a female child under the age of 13 by seizing her by the body pushing her onto a couch and the floor lying on top of her, restraining her and attempting to remove her clothing and kissing her on the face contrary to section 20 of the Sexual Offences (Scotland) Act 2009 (charge 3). The appellant was acquitted of three further charges alleging contraventions of the 2009 Act. The appellant appealed against his conviction in relation to charges (1) and (3) on the basis that the doctrine mutual corroboration should not have been allowed to apply in relation to charges (1) and (3) and also in relation to criticism of the trial judge’s directions to the jury on how they might find corroboration in relation to the charges before them. It was submitted on behalf of the appellant that in relation to charges (1) and (3) the evidence supporting them was materially different in character and the doctrine of mutual corroboration could not apply. In particular, it was submitted that in relation to charge (1) the complainer was a male child (aged 9 or 10) who was significantly younger than the appellant (aged 14) and the conduct involved the child voluntarily attending at the appellant’s home and bedroom and the conduct taking place in private and involved the penetration of the complainer’s anus with the appellant’s penis. In relation to charge (3) it was submitted that the conduct was materially different in circumstance and in gravity. The complainer in charge (3) was a female child who was only a year younger than the appellant and she had described conduct which involved her being dragged from the living room where others were present into the appellant’s bedroom where she was forced down and he attempted to kiss her, however, the conduct did not involve penetration and it was submitted there was no evidence from which attempted penetration could be inferred. It was submitted that the marked differences in the conduct described and the contrast in the gravity of the conduct described was so significant that the conduct relating to the two charges was not capable of being viewed as part of a single course of criminal conduct and the doctrine of mutual corroboration could not apply. It was further submitted on behalf of the appellant that when the jury sought clarification of the application of the doctrine the trial judge sought to summarise the doctrine and stated that the application of the rule meant that at least two charges must be involved in the event that they were to return a guilty verdict. It was submitted that that direction conveyed to the jury that they could not return a verdict of guilty in respect of charge (3) alone (for which there was independent corroboration) and would require to find the appellant guilty of another charge on the indictment if they were inclined to convict on that charge. Further general criticisms were made of the trial judge’s directions on the doctrine of mutual corroboration, in particular, how the jury might approach the doctrine in the event that the jury chose to acquit the appellant of some charges. On behalf of the Crown it was submitted that the conduct described was close in time and the issue was whether there was ‘identity in kind’ to permit a conclusion that the appellant was engaged in a course of conduct persistently pursued. In support of that 8 points of similarity were highlighted:- (1) the incidents were closely connected in time; (2) the locus for each was the same, namely the bedroom of the accused; (3) both complainers were young children; (4) both complainers were in a similar relationship to the appellant, namely, part of a friendship group; (5) both complainers were in the appellant’s home for the same reason, namely, to socialise with other children; (6) both complainers spoke to the use of force; (7) the appellant’s behaviour towards both involved an element of risk taking as there were others present in the house; and (8) there was removal of the first complainer’s clothing prior to anal penetration and in charge (3) there were attempts to remove her lower clothing. Here the court refused the appeal and considered that not only was the conduct closely linked in time and place but also closely linked in character and circumstances. The court considered that the jury could have concluded that in relation to each complainer the appellant engaged in sexual activity, or attempted to do so, having forced them into his bedroom and, whilst the female complainer had managed to fight the appellant off resulting in the outcomes being different, that was not as a result of a difference in the way in which the appellant had behaved, rather, it was due to the different reaction and conduct of each complainer. The court observed that events in charge (3) pre-dated the events described in charge (1) and the latter charge was evidence of an escalation of the earlier conduct in gravity and the jury would have been entitled to conclude but for the female complainer’s reaction the conduct involving her would have gone further. The court also considered that the directions given by the trial judge were appropriate having regard to the particular circumstances of the case.