B.M. v. Her Majesty’s Advocate [2017] HCJAC 55

Note of appeal against conviction and sentence:- The appellant went to trial at Edinburgh High Court in relation to 39 charges, the majority of which related to sexual conduct perpetrated against females whom the appellant was involved in relationships with at the relevant time. The Crown withdrew 14 charges leaving 25 charges relating to 14 complainers, 18 of the charges related to sexual offences. The jury acquitted the appellant of 12 of the remaining charges resulting in acquittals in relation to 8 of the remaining complainers. Guilty verdicts were returned in relation to charges involving sexual conduct against KC (charge 5), NC (charges 15, 16 and 18), HM (charges 28, 32 and 33), JD (charge 35) and KD (charge 36). Guilty verdicts were returned in relation to charges involving non-sexual violence against NA (charge 3), NC (charge 17) and HM (charge 29). The final charge the appellant was convicted of was charge 38 being a breach of a special condition of bail not to approach or contact HM. The appellant appealed against his conviction in relation to charges 32 and 33 on two grounds:- (1) that there was insufficient evidence to permit either of these charges to be corroborated, in that the remaining charges of which the appellant was convicted related to conduct which was insufficiently connected in time, place and circumstance to allow the doctrine of mutual corroboration to apply; and (2) that the trial judge misdirected the jury by failing to direct them that evidence showing a general disposition to commit a particular type of offence is insufficient to permit the application of the doctrine of mutual corroboration and failed to direct them that they must apply the doctrine of mutual corroboration with caution. Charge 32 was a contravention of section 1 of the Sexual Offences (Scotland) Act 2009 on an occasion between 1 December 2010 and 31 December 2012 and charge 33 was a contravention of sections 1 and 2 of the Sexual Offences (Scotland) Act 2009 on 30 January 2014. The complainer HM was in a relationship with the appellant at the time. It was submitted on behalf of the appellant that charge 32 related to an incident which began consensually and developed into criminal conduct as the appellant continued despite the complainer’s request for him to stop whereas charge 33 was an extremely violent incident with no consensual activity at any stage. It was submitted that were few similarities between charges 32 and 33 and in relation to the other offences on the indictment which the appellant was convicted there were insufficient similarities present for the doctrine of mutual corroboration to apply. A number of dissimilarities were highlighted by senior counsel for the appellant between charges 32/33 and the remaining charges and it was submitted that there was insufficient evidence in law to entitle the jury to convict the appellant of either charge. In relation to the second ground of appeal it was submitted that the trial judge ought to have directed the jury that it was not enough to enable the doctrine of mutual corroboration to apply to show that the appellant had a general disposition to commit a particular kind of crime but also that the doctrine required to be applied with caution. In particular, it was submitted that the jury should have been directed specifically of the difference between a course of conduct systematically pursued and a general disposition to commit crimes of a particular kind. It was submitted that the absence of these two directions by the trial judge resulted in a miscarriage of justice. On behalf of the Crown it was submitted that the close connection between the appellant and the complainers was an important factor between the offences. In addition, the complainers were all vulnerable and there was a course of conduct, or unity of purpose, which could be seen in the appellant’s offending to enable the doctrine to apply. In relation to the contention that there had been a material misdirection, it was submitted that in the case of Russell v HMA 1992 SCCR 257 the court had rejected the suggestion that there was an obligation on a trial judge to warn a jury that they should only apply the doctrine with caution. It was submitted that it was clear from the verdict of the jury that they had approached their task carefully in delivering a discerning verdict by acquitting the appellant of all charges in relation to some complainers and some charges in relation to other complainers, for example, they acquitted the appellant of charge 39 which was a further charge of rape relating to HM. Here the court refused the appeal. The court stated that the key issue of whether there is sufficient evidence for the application of the doctrine of mutual corroboration to apply is whether there is an underlying similarity of the conduct described in the evidence rather than the nomen juris of the charges which should be considered. The court considered that in relation to the charges the appellant was convicted of there were sufficient similarities in the conduct spoken of by the various complainers for the doctrine of mutual corroboration to apply and that it was not correct to approach the task in the compartmentalised way suggested on behalf of the appellant. The court pointed to a number of similarities between the conduct:- (1) the complainers were all part of the appellant’s domestic circle at the relevant time; (2) the complainers were all female and younger than the appellant; (3) the complainers were all vulnerable; (4) the conduct involved the appellant’s sexual gratification by contact with the vagina or anus of the complainers in the absence of their consent; (5) the complainers were either too young to consent, or sleeping at the relevant time or actively not consenting; and (6) the offences were all committed within an environment of a controlling or dysfunctional domestic relationship. In relation to the second ground of appeal the court accepted the submission made on behalf of the appellant that frequently judges do give the directions which were argued for in the present case, however, the court did not consider that the absence of such directions were determinative. The court considered that the directions given were adequate in the particular circumstances of the case and it was clear from the jury’s discerning verdicts that they applied the judge’s directions on mutual corroboration with care.