P.G.T. v. Her Majesty’s Advocate [2020] HCJAC 14

Note of appeal against conviction and sentence:-  On 8 May 2019, following a trial at Glasgow High Court, the appellant, now aged 56, was convicted of three charges:- (1) indecent assault of GT, his nephew then aged 12-14 years on an occasion between 13 March 1997 and 12 March 1999 including inter alia sodomy; (2) indecent assault of GT on an occasion in March 2000 by touching his penis over his clothing; and (3) rape of BT, his wife, on an occasion in 2006. Following his conviction the appellant was sentenced to 10 years imprisonment. During the course of the trial, at the close of the Crown case, the trial judge repelled a ‘no case to answer’ submission made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 in which it had been contended that the conduct described by the complainers ought not to permit the application of the doctrine of mutual corroboration. The reasons given by the trial judge were that:- (1) the offences took place in the appellant’s home; (2) both complainers described forced penile penetration; (3) both complainers were vulnerable; (4) both complainers were relatives of the appellant; (5) both complainers described the appellant removing each complainer’s lower clothing; (6) both complainers described the offences occurring in a bedroom when no-one else was present; (7) the appellant took steps to ensure that both of the complainers did not tell anyone; and (8) both complainers described the offences occurring when they were under the influence of alcohol and the appellant had also consumed alcohol. In relation to what was said to be a lengthy period between the conduct described by each complainer the judge considered that the time intervals involved were not so great that compelling or extraordinary similarities were required. The appellant appealed against his conviction and sentence. In relation to the appeal against conviction it was contended that there was insufficient connection between charges 1/2 and charge 3 to allow the application of mutual corroboration. It was submitted that the circumstances of the conduct described by each complainer was not particularly similar and as such the significant time interval was critical. It was submitted that there lacked an overall similarity between the conduct described and it indicated little more than a disposition towards general sexual offending. A further ground of appeal contended that the trial judge failed to correct what had been said by the advocate depute in his speech in relation to using the similar nature of the different charges in the assessment of the complainers’ credibility and reliability. It was submitted that the correct approach for the jury was to assess the credibility of each complainer separately, based solely on that particular complainer’s evidence, without reference to the evidence of the other complainer. It was contended that it was only in the event that the jury found each complainer credible and reliable that they could go on to consider the applicability of the doctrine of mutual corroboration. It was submitted that the approach taken by the advocate depute of inviting the jury to use another sexual allegation by a different complainer to support the credibility and reliability of the other complainer ought to have been corrected by the trial judge and the failure to do so amounted to a material misdirection which resulted in a miscarriage of justice. A further ground of appeal contended that the trial judge had misdirected the jury in relation to their approach to mutual corroboration, in particular, given the significant time interval between the conduct described. It was submitted that the trial judge ought to have given the jury a specific direction that, in light of the time interval, they would need to find some special feature of the conduct described which rendered the similarities compelling. In relation to the appeal against sentence it was submitted that the sentence imposed was excessive having regard to the appellant’s mental deficiencies which had seen him committed to a mental hospital on previous occasions, the absence of previous custodial sentences and his age and health issues in that he had had a heart attack in 2017 and suffered from high blood pressure. On behalf of the Crown it was submitted that the conduct described by the complainers was eloquent of a single course of criminal conduct persistently pursued by the appellant and the trial judge had been correct to repel the section 97 submission. It was further submitted that the time interval was such that no compelling or extraordinary similarities were required. In relation to the issue of the credibility of the complainers it was submitted that the jury were entitled to take into account the totality of the evidence when considering the credibility of each complainer and what was said by the advocate depute in his speech to the jury did not contradict the directions given by the trial judge. Here the court refused the appeal. The court considered that the conduct described by the complainers was of such similarity, in particular, the familial circumstances and that the offences occurred in the appellant’s home, that it could not be said that on no possible view could the jury draw the inference that the individual incidents were component parts of such a course of conduct pursued by the appellant. In relation to the second ground of appeal the court stated at paragraph 21 follow a review of the authorities that:- “…It defies reason to suggest that the existence of a second complainer, with an account of the same nature as is required to establish mutual corroboration, can play no part at all in assessing the credibility of the first complainer and vice versa.” The court stated that it is for the jury to determine how to approach the task of determining:- (a) whether two or more complainers are credible; and (b) whether mutual corroboration applies. The court did not identify any fault in the comments made by the advocate depute in his speech and there was no need for the trial judge to make any correction. In relation to the trial judge’s directions in relation to mutual corroboration the court described these as “unexceptionable” with no misdirection apparent. In relation to the appeal against sentence the court considered that had it not been for the level of the appellant’s intelligence the sentence imposed could not be described as anything other than appropriate, however, given the appellant’s particular circumstances the court agreed that the sentence was excessive and quashed the sentence of 10 years imprisonment and substituted a sentence of 8 years imprisonment.