Andrew John Miller v. Her Majesty’s Advocate [2016] HCJAC 68

Note of appeal against conviction and sentence:- On 16 January 2015, at Edinburgh High Court, the appellant was convicted after trial of 6 charges:- assault of PG to injury on various occasions (charge 1); assault of KM to injury on various occasions (charge 6); rape of KM on various occasions (charge 7); rape of KM on a single occasion (charge 8); contravention of sections 2 and 3 of the Sexual Offences (Scotland) Act 2009 and the common law (charge 9); and a contravention of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 in relation to sending KM messages on a social networking site (charge 10). In relation to charge 9 it had originally been indicted with an alternative charge of common law assault, abduction and rape over a period prior to the coming into force of the 2009 Act (before 1 December 2010), however, that alternative was withdrawn from the Crown and the jury returned a verdict of guilty in relation to charge 9. The trial judge, however, had directed the jury that they could only convict the appellant of the rape element of charge 9 if they found corroboration from the complainer in charge 2 (PG), however, the jury found that charge not proven so the rape element of the jury’s conviction of the appellant for charge 9 could not stand. The Crown and the defence presented the trial judge with what was considered to be the appropriate verdict to be recorded, however, that agreement had been reached despite the appellant’s position at the appeal that there was no corroboration of the sexual elements of the libel. The appellant was subsequently sentenced to 6 months imprisonment on charge 1 and an extended sentence of 10 years was imposed in respect of charges 6, 7 and 8 with a custodial element of 8 years. In relation to charges 9 and 10 a cumulo sentence of 3 years imprisonment was imposed, to run consecutively to the sentence on charges 6, 7 and 8. Here appellant appealed against his conviction the issue being whether the trial judge’s directions in relation to the requirement that penetration, being an essential element, required to be corroborated. In addition it was contended that there was insufficient evidence in relation to charge 9 the appellant having been acquitted of charge 2. Here it was submitted on behalf of the appellant that the directions given by the trial judge in relation to rape were deficient there being no specific mention of the requirement to corroborate penetration and as such the jury may have had the impression that corroboration of penetration was not required. In relation to the second ground of appeal it was submitted that, in light of the appellant’s acquittal in respect of charge 2, there was no corroboration of the sexual element of charge 9. On behalf of the Crown it was submitted that there had been no misdirection as the trial judge had directed the jury that corroboration was necessary for the essential elements of the charge and had directed that penetration was an essential element. It was conceded by the Crown that whilst separate elements of a common law of assault did not require to be corroborated the sexual element did require separate corroboration. Here the court allowed the appeal in respect of charge 9 leaving a conviction for common law assault. The court considered that the trial judge’s directions in relation to what required to be corroborated were adequate, however, there was no corroboration of the sexual element of charge 9 in light of the appellant’s acquittal in relation to charge 2. In addition, the court considered that there was no corroboration of the averment of abduction and reference to detaining the complainer against her will was also deleted from the libel. Due to the deletions to charge 9 the court reduced the sentence on that charge to 12 months. The court considered that the sentence for charge 12 should be concurrent to the extended sentence on charges 6, 7 and 8 as the court took the view that the offence was part of a single course of conduct as charge 6 contained a libel which encompassed that on charge 9. Finally, in relation to charge 10 the sentencing judge had imposed a period of imprisonment exceeding the statutory maximum of 12 months and imposed a sentence of 12 months imprisonment which was now to be consecutive to the other periods of imprisonment imposed.