D.M. v. Her Majesty’s Advocate [2022] HCJAC 27

Note of appeal against conviction:- The appellant was convicted after trial at the High Court of 14 charges including rape, domestic assault, indecent communications and threatening, abusive and controlling behaviour, relating to four separate complainers. The appellant appealed against his conviction it being contended that the trial judge failed to provide the jury with specific directions identifying those charges which relied upon the doctrine of mutual corroboration and those for which other corroborative evidence was available. It was submitted on behalf of the appellant that, whilst it was accepted that the trial judge need not analyse the evidence in a compartmentalised way, the trial judge had failed to provide specific directions about which charges required the application of Moorov and which were supported by independent evidence. It was submitted that the trial judge had failed to direct the jury that the sexual charges had to be considered separately from the other charges which could not provide corroboration for the sexual charges (albeit the jury had been directed that the evidence of rape could not be corroborated by evidence of a non-sexual assault). It was submitted that the absence of a direction to the jury to consider the sexual charges as one group, and the other charges in a different group, resulted in a miscarriage of justice. Here the court refused the appeal. The court noted that the issue was not whether the trial judge identified instances where independent corroboration might be available as there was only one charge (charge 13) for which there was independent corroboration. The issue in the appeal was whether the trial judge provided adequate directions to the jury on how the jury could apply the doctrine of mutual corroboration and the circumstances and charges in which its application could apply. The court examined whether the trial judge gave adequate directions which would enable the jury to identify those types of behaviour, or sets of charges, which could properly be grouped together for the application of mutual corroboration and those charges which did not. The court considered that the trial judge did adequately identify the groups of charges or types of behaviour which could properly be used by the jury in the application of the doctrine of mutual corroboration. The trial judge directed the jury that they could not find corroboration for the evidence on sexual charges in evidence on non-sexual charges, that corroboration for evidence on assault charges could be found in evidence of assault and that corroboration of evidence of threatening and abusive behaviour could be found in other such evidence.