A.L. v. Her Majesty’s Advocate [2016] HCJAC 120

Note of appeal against conviction:- On 24 March 2016, at Edinburgh High Court, the appellant was convicted after trial of charges 2, 6, 7 and 8 and he was acquitted of charges 1, 3 and 5. The appellant appealed against his conviction in relation to charges 2 and 6. Charge 2 was the rape of his partner and charge 6 was a charge of using  lewd, indecent and libidinous practices and behaviour towards one of his daughters. The grounds of appeal were that:- (1) the trial judge having directed the jury that they should only apply the rule of mutual corroboration between charges within a group of charges it was then not open to the jury to apply the rule between charges belonging to different groups; and (2) a jury properly directed could not have concluded that charges 2 and 6 were sufficiently similar in character and circumstances as to amount to a single course of criminal conduct. It was submitted on behalf of the appellant that the trial judge in his charge had dealt with charges 2 and 5 in one group and charges 3 and 6 in another. Charge 3 was a charge of using lewd, indecent and libidinous practices and behaviour towards another daughter of the appellant, ‘C’, and charge 5 was the rape of that daughter. In directing the jury in relation to groups of charges and how they could apply mutual corroboration the judge had not stated that the groups were illustrative and as such there could be no basis for the jury convicting of charges 2 and 6 and it appeared that the jury had not followed the trial judge’s directions. In relation to the second ground of appeal it was submitted that the differences between the circumstances of each of the charges was such that it could not be said that each was part of a single course of criminal conduct in that charge 2 related to repeated behaviour over many years in the context of a controlling and dysfunctional relationship whereas charge 6 related to a one off event involving a young child whilst bathing. It was submitted that the dissimilarities between the two charges were such that it was not open to the jury to convict the appellant of charges 2 and 6 on the basis of mutual corroboration. Here the court refused the appeal. In relation to the directions given by the trial judge the court considered that the approach taken by the trial judge in grouping charges together was not prescriptive and it was open to the jury, in light of the general directions which importantly came before the directions in relation to groups of charges, to find mutual corroboration between charges 2 and 6. The court pointed to various similarities between the charges:- (1) charge 6 occurred within the period of time of charge 2; (2) both charges involved penetrative sexual acts, charge 2 concerned rape and charge 6 concerned lewd, indecent and libidinous practices involving digital penetration; (3) both charges involved penetration of the vagina; (4) in both charges the complainer was a family member; (5) when both charges occurred the appellant was alone with the respective complainer; and (6) in both charges the conduct took place within the family home. In addition, it was noted that the offences were committed in the context of a controlling, dysfunctional and domestic relationship, and the court considered that it was open to the jury to apply the doctrine of mutual corroboration between charges 2 and 6.