J.W. v. Her Majesty’s Advocate [2018] HCJAC 10

Note of appeal against conviction:- On 8 May 2017, following a trial on indictment at the sheriff court, the appellant was convicted of two charges:- (1) a charge of lewd, indecent and libidinous practices and behaviour on 2 December 2006 involving a girl KD, aged 11 years; and (2) a charge of sexual activity involving RD, aged 13 years, contrary to section 30 of the Sexual Offences (Scotland) Act 2009 together with a docket giving notice that the Crown intended to lead in evidence that on the same occasion the appellant had penetrated the vagina of RD with his penis. The Crown relied upon the doctrine of mutual corroboration to prove the two charges. The appellant appealed against his conviction on the ground that the sheriff erred in repelling the ‘no case to answer’ submission at the close of the Crown case in which it was contended that a time interval of 8 years, in the absence of compelling similarities between the conduct described, was too long for the doctrine to apply. Here it was submitted on behalf of the appellant that the time interval was a significant one and, having regard to the particular circumstances of the case the doctrine of mutual corroboration should not have been available to the jury. It was submitted that the period of time was significant particularly when there were only two incidents. It was further submitted that in the present case there was no lack of opportunity during the 8 year period in that RD had been in the appellant’s company on a number of occasions during that time. A number of differences were highlighted between the conduct described in charge 1 and that relating to charge 2 in particular that whilst charge 1 could be viewed as opportunistic the charge involving RD could be viewed as involving a degree of grooming. It was submitted that the sheriff’s directions that it would be open for the jury to conclude that the appellant ceased his behaviour until he felt confident to recommence it was inconsistent with the idea that the two incidents formed part of a single course of conduct systematically pursued by the appellant. The solicitor-advocate for the appellant invited the court to hold that there were no strikingly compelling features present which could entitle a jury to hold, in light of the significant time interval, that the two incidents formed part of a single course of conduct. On behalf of the Crown it was submitted that there were a number of similarities that allowed the application of the doctrine notwithstanding the significant interval of time:- both complainers were girls of a similar age; (2) the appellant had been friendly towards both complainers prior to the incidents and had a caring role towards them; (3) the appellant had consumed alcohol on both occasions ; (4) both incidents occurred at night when the complainers were staying overnight at his house; (5)both incidents took place in the appellant’s bed whilst the complainers were sleeping; (6) in both the appellant partially undressed the complainers whilst they were asleep; (7) in both the appellant touched the complainers’ vagina; (8)in both incidents the appellant’s conduct stopped when the complainers removed themselves from the situation; and (9)on both occasions the appellant ceased his conduct when he realised the complainer was awake. Here the court refused the appeal. The court acknowledged that the time interval between the two incidents was significant, however, the question which the sheriff correctly identified at the stage of the ‘no case to answer’ submission was whether on no possible view could it be said that there was any connection between the two offences. The court considered that the sheriff was entitled, when evaluating the similarities and the dissimilarities between the two incidents, to conclude that the doctrine could apply.