D.M. v. Her Majesty’s Advocate [2017] HCJAC 19

Note of appeal against conviction:- In July 2016, at Kilmarnock Sheriff Court, the appellant went to trial on indictment in relation to five charges of indecency. At the close of the Crown case charge 3 was withdrawn by the Crown and the jury found charge 4 against the appellant not proven. The appellant was convicted of charge 1 (common law charge of lewd, indecent and libidinous practices and behaviour towards his niece, CG, between 4 April 1987 and 3 April 1990), charge 2 (statutory charge of lewd, indecent and libidinous practices and behaviour towards his niece, MB, between 2 June 1996 and 1 June 1997, contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995) and charge 5 (common law charge of lewd, indecent and libidinous practices and behaviour towards his niece, BA, between 12 September 2005 and 11 September 2008). On 15 August 2016, after obtaining a Criminal Justice Social Work Report, the sheriff sentenced the appellant to 42 months imprisonment comprising 2 years imprisonment in relation to charge 1 and nine months imprisonment consecutively in relation to both charges 2 and 5. The appellant appealed against his conviction. The ground of appeal related to criticisms of the trial sheriff’s directions to the jury on the doctrine of mutual corroboration and, in particular, a failure to make any mention of the time intervals between the charges and that these time intervals had the potential to undermine the application of the doctrine of mutual corroboration. It was submitted on behalf of the appellant that the interval between charges 1 and 2 was around 6 years and the interval between charges 2 and 5 was around 8 years and the trial sheriff ought to have directed the jury that the time interval might be such as to make the doctrine inapplicable. In addition, the trial sheriff directed the jury that the defence “has not suggested that the circumstances of each incident are so dissimilar that the rule can’t be applied”, however, it was submitted on behalf of the appellant here that the remark by the trial sheriff may have given the jury the impression that the doctrine did apply on the facts of the case. On behalf of the Crown it was submitted that at the trial defence counsel had not attempted to persuade the jury that, if the complainers were believed, the doctrine of mutual corroboration was nevertheless not applicable. It was further submitted on behalf of the Crown that the directions given by the trial sheriff were adequate in the circumstances and the present case was not exceptional in that the time intervals were not so great that specific comment on the interval was necessary. Here the court refused the appeal. The court considered that whilst there may be certain cases where a significant time interval requires specific directions by the trial judge, this was not such a case. The court considered that the directions given by the trial sheriff were adequate for the circumstances of the case. In relation to the remark made by the trial sheriff, it was noted by the sheriff in his report to the court that what was said was factually correct, in that counsel for the appellant had not made a ‘no case to answer’ submission at the close of the Crown case and had not suggested that the circumstances of each incident were so dissimilar that the doctrine could not be applied.