D.W. v. His Majesty’s Advocate [2023] HCJAC 28

Note of appeal against conviction and sentence:- The appellant was convicted after trial on indictment at the sheriff court of two charges of lewd, indecent and libidinous practices, one at common law and one under section 20 of the Sexual Offences (Scotland) Act 2009. Charge 1 related to conduct on various occasions between 20 January 1991 and 31 December 1993 at various places in Hawick involving a boy A, aged between 11 and 13 and charge 2 related to conduct on various occasions between 1 June 2010 and 30 April 2011, at various places in Hawick, involving a boy B aged 8 to 9. A docket was appended to the indictment relating to alleged lewd practices on various occasions between 1 January 1993 and 31 December 1993, at various places in Hawick, involving a boy C aged between 12 and 13. In the course of the trial at the close of the Crown case a ‘no case to answer’ submission was made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995, in which it was submitted that, whilst it was conceded that there was no issue as between charge 1 and the docket it was submitted that the gap in time between charge 2 and charge 1/the docket was too great to allow the application of mutual corroboration. The sheriff repelled the submission and the appellant was subsequently convicted by the jury. The appellant was sentenced to 18 months imprisonment. The appellant appealed against his conviction on charge 2 it being contended that the trial sheriff had erred in repelling the ‘no case to answer’ submission. The appellant appealed against the sentence imposed it being contended that if the appeal against conviction was successful, what the appellant understood to be a cumulo sentence of 18 months, would require to be revisited. In his report to the court the sheriff stated that the appellant was sentenced to 18 months for each charge which sentences were to run concurrently with each other. It was accepted on behalf of the appellant that if the appeal against conviction in relation to charge 2 was unsuccessful then there was no merit in an appeal against sentence. It was submitted here on behalf of the appellant that the time interval of around 17 years was too great for the application of the doctrine of mutual corroboration. It was submitted that there was no evidence which explained the significant gap in offending as there were further opportunities to offend during that period and it could not be said that the conduct described were component parts of one course of conduct persistently pursued by the appellant. On behalf of the respondent it was submitted, under reference to Adam v HMA 2020 JC 141, that the test was whether it could be said that on no possible view could the jury find that there was a single course of conduct systematically pursued, a high test which was unlikely to be capable of being passed in child sexual abuse cases. Furthermore, there was no maximum time period after which the doctrine could not apply and the more compelling the similarities were the less significant a substantial interval of time would be and in the present case there were compelling and striking similarities present which allowed for the application of the doctrine. Here the court refused the appeal and stated that only in cases where on no possible view of the evidence could a jury come to the view that the individual instances were part of a course of criminal conduct systematically pursued will a submission of ‘no case to answer’ be upheld. Here the court pointed to strong similarities between the evidence of the three complainers, them all being boys of a similar age from Hawick with the appellant having access to them by knowing them all in some way prior to the commencement of the abuse. The court also highlighted a particularly compelling similarity with the appellant inviting the boys to drive the appellant’s car and have them sit on his knee before engaging in the abusive behaviour. The court also stated that, whilst there was no evidence which might explain the significant time gap, that was not necessary for the doctrine to apply. In light of the appeal against conviction failing the appeal against sentence was also refused.