C.H. v. Her Majesty’s Advocate [2016] HCJAC 4

Note of appeal against conviction:- On 26 August 2014, at Glasgow High Court, the appellant was convicted after trial of two charges of rape committed against AB on 2 January 2014 contrary to section 1 of the Sexual Offences (Scotland) Act 2009. In relation to a further 3 charges (charges 5, 8 and 9) relating to allegations of rape committed against AB in charge 5 and EG in charges 8 and 9, he was acquitted. Charges 5, 8 and 9 could only be proved by the application of mutual corroboration through the evidence of the two complainers, whereas in relation to charges 10 and 11 there was other evidence available which allowed these charges to prove without sole reliance on mutual corroboration. The appellant appealed against his conviction and leave to appeal was granted on three grounds albeit only one was argued at the appeal. It was contended that the trial judge’s directions on the availability of distress for corroboration were inconsistent with the earlier directions on mutual corroboration resulting in an absence of clear directions to the jury on a key area of the law of evidence. It was submitted that it had not been explained in clear enough terms the available routes open to the jury to reach their verdicts and in relation to the issue of distress, in particular, they were confusing and amounted to a material misdirection and resulted in a miscarriage of justice. On behalf of the Crown it was submitted that the verdicts were consistent with the directions given and there had been no misdirections and any confusion in relation to the directions were to the appellant’s advantage. It was further submitted that in light of the verdicts it was apparent the jury had rejected the application of mutual corroboration, particularly in light of the appellant’s acquittal in respect of charge 5. Here the court refused the appeal and described the verdict as a reasoned one. The court considered that the trial judge provided a discernible route to the verdict in her charge to the jury. The court did state, however, that it appeared from the charge that the directions were likely to have led the jury to understand that without the application of the doctrine none of the charges could be proved and it may have been preferable for the trial judge to have given clearer directions that charges 10 and 11 could be proved independently without reliance on mutual corroboration. Given the verdicts reached by the jury, in particular, the acquittal in relation to charge 5 involving AB, it was clear that the jury rejected mutual corroboration and the judge’s directions were sufficiently clear to enable the jury to convict of charges 10 and 11 by another route.