Andrew Reilly v. Her Majesty’s Advocate [2017] HCJAC 5

Note of appeal against conviction:- On 18 January 2016, at Aberdeen High Court, the appellant was convicted after trial of 11 charges relating to disorderly conduct, physical and sexual abuse and a charge relating to a contravention of the Animal Health and Welfare (Scotland) Act 2006 (charge 7). The charges of physical and sexual abuse related to conduct directed against women with whom he had previously been involved in relationships. Leave to appeal was granted in relation to the following charges:- (charge 1) various physical assaults of RG; (charge 2) rape of RG; (charge 3) physical assault of PB; (charge 5):- rape of PB; (charge 6) rape of DH; (charge 8) various physical assaults of DH; (charge 9) sexual assault of DH; and (charge 11) rape of DH. At the trial the Crown had proceeded on the basis that it was necessary to find corroboration for each of the charges by application of the doctrine of mutual corroboration and the Crown divided the charges into two separate categories, one relating to sexual offences, namely charges 2, 5, 6, 9 and 11, and one relating to physical assaults, namely charges 1, 3 and 8. It was not suggested at the trial by the Crown that the doctrine of mutual corroboration could be applied across both categories and the trial judge gave directions to the jury that mutual corroboration could only be found within each category and not between them. In relation to the sexual assault category the time interval between charges 2 and 5 was around 20 years, the interval between charge 2 and charges 6, 9 and 11 was around 24 years and the interval between charge 5 and charges 6, 9 and 11 was around 4 ½ years. In relation to the physical assault category the time interval between charges 1 and 3 was around 15 years, the interval between charges 1 and 8 was around 24 years and the interval between charges 3 and 8 was around 9 years. At the trial at the close of the Crown case no submission of ‘no case to answer’ was made on behalf of the appellant and the trial judge directed the jury that there was sufficient evidence for the jury to convict the appellant on each charge within each category on the basis of the doctrine of mutual corroboration. The appellant appealed against his conviction in relation to charges 1, 2, 3, 5, 6, 8, 9 and 11. It was contended on behalf of the appellant that the Crown had been correct to approach the case in the way it had in that the nature of the charges in each of the two categories were different and the doctrine of mutual corroboration could not be applied to allow corroboration of any of the sexual charges to be found in the evidence of the physical assaults and vice versa. In relation to the time interval between the charges it was submitted that the evidence did not disclose any particular features which had the necessary exceptional or unusual quality to allow the application of the doctrine over such lengthy periods of time as were present here. In addition to the interval in time it was submitted that the conduct described in charge 5 and charges 6, 9 and 11 did not have the necessary similarities to allow the application of the doctrine. Further, it was submitted that the trial judge ought to have directed the jury that they could not convict on any of the charges within either chapter unless they accepted the evidence of the complainer PB and were also prepared to convict on the charges to which her evidence related. On behalf of the Crown it was submitted that, notwithstanding the manner in which the trial had been presented on behalf of the Crown, all the conduct ought to be viewed as a campaign of domestic abuse and it was artificial to separate out sexual conduct by the appellant from physical assaults by him and all these forms of abusive conduct could be considered to be part of campaign of terror which characterises domestic abuse. It was submitted that there was no maximum time interval laid down by law beyond which the doctrine could not apply and, in any event, there were present pieces of evidence which could be described as striking or extraordinary which resulted in the time interval being deemed less important. Here the court again considered the modernisation of the doctrine of mutual corroboration. The court did not accept the Crown’s submission that all of the appellant’s conduct should be seen as a single campaign of domestic abuse or that both the trial judge and the trial advocate depute had been wrong to separate the behaviour described in evidence into different categories. The court pointed out, however, that even if the Crown were right that mutual corroboration could be found across both categories, there would still be a time interval of 15 years between the last form of violent conduct against RG and the first conduct of any form of violence against PB. In relation to the time interval for the sexual offences the court considered that the interval between charge 2 and either charge 5 (20 years) and charges 6, 9 and 11 (24 years) were too great and lacked any extraordinary or special features beyond the conventional similarities. In relation to charge 5 and charges 6, 9 and 11 the court considered that there were sufficient similarities between the conduct to enable the application of the doctrine and the interval of around 4 ½ years was not so long that any extraordinary or special features were required to be present. In relation to the physical assaults the court considered that there were no extraordinary or special features present in the evidence led in support of charges 1 and 3, where the time interval was 15 years, for the application of the doctrine. Similarly, in relation to charges 3 and 8 the court considered that in light of the interval of 9 years there were no extraordinary or special features present in the evidence to allow the application of the doctrine. In the circumstances the court quashed the convictions in relation to charges 1, 2, 3 and 8 (with the exception of sub-heads (e) and (i) which had independent corroboration) and the question of the effect the decision has on sentence was continued.