Her Majesty’s Advocate v. M.M. [2019] HCJAC 77

Appeal under section 107A of the Criminal Procedure (Scotland) Act 1995:- The respondent proceeded to trial at Glasgow High Court in relation to 18 charges. Charges 4-8 related to lewd, indecent and libidinous practices and behaviour, indecent assaults and rapes of LM, the respondent’s sister between 1981-1993 involving sexual abuse including anal, oral and vaginal penetration. Charges 12 to 17 involved a number of assaults, indecent assaults and a rape of AC between 1996 and 2001. Charge 18 was a charge of indecent assault on LM, contrary to section 3 of the Sexual Offences (Scotland) Act 2009 in 2012. Charges 1-3 related to physical assaults on LM, EM, his mother, and TM, his brother over the period from 1981 to 1993 but were not relevant for the appeal. Similarly charges 9-11 related to physical assaults on EQ, his brother TM, and his father, also TM and were not relevant as far as this appeal was concerned. At the close of the Crown case a ‘no case to answer’ submission was made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. On 31 October 2019, the trial judge sustained the submission and acquitted the respondent on charges 4 to 8, 12, 14, 15 and 18 as he did not consider that mutual corroboration could operate between the sexual offences involving LM and those involving AC. The trial judge considered that the sexual abuse relating to AM took place when she and the appellant were children and occurred with regularity over a prolonged period of time whereas the evidence from AC related to conduct occurring in the context of a consensual sexual relationship between adults. The judge considered that charge 18 occurred too long after the alleged conduct forming charges 4-8 to allow the doctrine of mutual corroboration to apply. The trial judge considered that the differences between the conduct described were too great for the charges to proceed to the jury, particularly given there were ‘only’ two complainers. The Crown appealed against the decision of the trial judge. It was submitted on behalf of the appellant that the test, which had been properly set out by the trial judge, was whether there were the conventional similarities in time, place and circumstances such as could demonstrate that the individual incidents were component parts of one course of criminal conduct persistently pursued by the respondent. It was necessary to consider whether the necessary inference could be drawn from the whole circumstances and that evaluation should be left to the jury unless on no possible view could it be said that the relevant inference could be drawn. It was conceded that there were differences between the conduct described by LM and AC, however, it was submitted that the presence of a number of similarities were sufficient for the charges to be left for the jury’s consideration. On behalf of the respondent it was submitted that the trial judge was correct to sustain the submission. The conduct described by LM was described as “industrial level” sexual abuse occurring almost every day whereas the conduct described by AC related to infrequent episodes in the context of a consensual sexual relationship. It was submitted that the critical elements of mutual corroboration as described in Jamal v. H.M.A. 2019 J.C. 19 were not met. Reference was also made to H.M.A. v. S.M. (No 2) 2019 S.C.C.R. 262 and the approach which the court should take and on behalf of the respondent it was submitted that the trial judge was correct to identify the differences between the conduct as insurmountable from a mutual corroboration perspective. Here the court disagreed with the approach of the trial judge and considered that it was open to the jury to determine whether mutual corroboration was applicable. The court pointed to both complainers being significantly younger than the respondent, to there being the use of violence, the abuse of a position of trust by the respondent and to the conduct by the respondent being similar, including anal penetration without consent. The court allowed the appeal and repelled the no case to answer submission (with the exception of charge 18 given the time interval).