Angus McAskill v. Her Majesty’s Advocate [2016] HCJAC 64

Note of appeal against conviction:- On 11 December 2015, at Glasgow High Court, the appellant was convicted after trial of nine out of seventeen charges relating to various sexual assaults/assaults perpetrated against his partner JC (charges 1,2, 4, 5, and 6) and LMcD (charges 9, 10, 11 and 13), the appellant’s ex-wife whom he had married in 1996. The appellant was acquitted of four further charges (charges 14-17) relating to another partner, KR, whom he met in 2000. Various other charges were either withdrawn by the Crown or were the subject of the trial judge upholding no case to answer submissions at the close of the Crown case. The jury also acquitted the appellant of a further assault and rape of JC. The trial judge imposed a sentence of 3 years in respect of the assault convictions (charges 1, 6 and 13) and a consecutive sentence of 5 years in cumulo in respect of the sexual offences (charges 2, 4, 5, 9, 10 and 11). The appellant appealed against his conviction on a number of grounds. The first and second grounds of appeal were that the trial judge had erred in refusing to desert the diet pro loco et tempore. During the examination in chief of KR the advocate depute asked her “Did he do anything else?” The complainer answered that he had had sex with her whilst she was asleep for which there was no libel. An objection was taken and an application made to desert the diet pro loco et tempore. It was submitted on behalf of the appellant that the question had been loose and ill advised and the fairness of the trial may have been prejudiced and the diet ought to be deserted unless the error or unfairness could be cured by way of an appropriate direction which it could not and, in any event, the judge had not provided any subsequent direction. On the third ground, it was submitted that there was insufficient similarity between the incidents libelled in charges 1 and 14, which were the only charges of physical as distinct from sexual abuse, to overcome the considerable interval in time between them (20 years). The fourth ground was that, if the judge had been correct in refusing the submission, once the jury had acquitted the appellant of charge 14, there was no corroboration in respect of charge 1 as the jury could not convict of one offence and acquit of the other. The fifth ground was that charges 6 and 13 could not have been used to corroborate each other mutually as any similarities were superficial, charge 6 involving driving a car at the complainer and her children whilst charge 13 was one of driving the complainer and her child at an excessive speed and there was a gap of more than 4 years between them. The sixth and seventh grounds were that the judge had misdirected the jury on mutual corroboration in that his directions were complex and unclear and no standard example from the jury manual had been provided. In addition he had failed to direct the jury that they required to be satisfied beyond reasonable doubt that those charges formed part of a single course of criminal conduct involving an underlying unity. Finally, it was submitted that the trial judge’s directions in relation to CH’s evidence being of limited value trespassed into the province of the jury as it was evidence which was capable of showing that the appellant had not carried out a persistent course of physically and sexually abusive conduct towards all his partners. Here the court refused the appeal. In relation to grounds 1 and 2 the court stated that the question of whether to desert a trial is primarily a question for the trial judge in the context of the trial as a whole and the manner in which the trial judge dealt with the issue in his directions was adequate. In relation to grounds 3-5 the court considered that taking the Crown case at its highest all the charges, including those involving KR (charge 14) where the appellant was acquitted, there was sufficient evidence on each through the application of mutual corroboration. In relation to grounds 6 and 7 the court considered that the trial judge’s directions on mutual corroboration could not be faulted and the jury were advised to approach the application of the doctrine with caution particularly where there were longer time intervals. In relation to the criticism that the standard goalkeeper/bribery example had not been given the court considered that introducing such an example in the present case, where the allegations were of an entirely different nature, was unlikely to have assisted the jury. In relation to ground 8 whilst the court confirmed that the evidence is matter for the jury the court recognised that there are occasions where a trial judge, with their judicial skill and experience, may be well placed to comment on the evidence provided it is made clear to the jury that it is ultimately a matter for them what they make of the evidence. In the present case the court considered that the trial judge’s comments in relation to CH’s evidence were legitimate all the while making it clear to the jury that the assessment of the evidence was ultimately a matter for them.