G.H. v. Her Majesty’s Advocate [2020] HCJAC 44

Note of appeal against conviction and sentence:- The appellant was convicted after trial at Glasgow High Court of two charges of sexual conduct against two complainers with a period of 12 years and 8 months separating the conduct relative to each charge. At the close of the Crown case a ‘no case to answer’ submission was made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 which was repelled by the trial judge. It had been submitted that the doctrine of mutual corroboration could not apply between the two incidents in light of the temporal gap between them. The appellant appealed against his conviction it being contended that the trial judge had erred in repelling the submission. The appellant also appealed against the extended sentence of 10 years imprisonment imposed (the custodial element comprising of 7 years) it being submitted that the sentence imposed was excessive. In relation to the appeal against conviction it was submitted on behalf of the appellant that the gap between the two incidents was exceptionally long and, having regard to a number of recent authorities, including RBA v HMA 20202 JC 16, where the gap was viewed as excessive there required to be a striking or extraordinary feature present which was absent in the present case. It was further submitted that extra caution ought to be taken where, as here, the doctrine was being applied with just two complainers and two charges. It was further submitted that there were significant differences in circumstances, context, gravity, nature and the extent of the offences libelled. In relation to the second charge there was no penile penetration nor any attempt at penetration. It was submitted that there was an absence of any course of conduct. On behalf of the Crown it was submitted that at the stage of the submission the Crown case had to be taken at its highest and it was not a question of whether inferences ought to be drawn but rather whether inferences could be drawn from the evidence. Under reference to Reynolds v. HMA 1995 JC 142 it was only where on no possible view of the evidence could it be said that the incidents constituted parts of one course of criminal conduct persistently pursued that such a submission be sustained. It was further submitted that the trial judge correctly identified the various factors present which allowed the application of the doctrine. Here the court refused the appeal against conviction and pointed to the following factors as being sufficient to permit the application of the doctrine:- (1) each complainer was a male child at the time; (2) each complainer was a blood relative of the appellant providing the means of access and opportunity; (3) at the material time each complainer was 5 years old; (4) the appellant had prior access to both complainers but the abuse only commenced when the complainers turned 5; (5) the abuse against A was perpetrated in his family home on all but two occasions and the abuse against B was all perpetrated in his family home; (6) in each case the appellant was in a position of trust; (7) in relation to A the appellant had been living elsewhere and it was on his return that he carried out the abuse and in relation to B the appellant had been living elsewhere but had returned to visit and it was then he abused the complainer; (8) in relation to both complainers following disclosure the appellant left the locus and headed South; and (9) these were the only two periods where the appellant had family access to boys of that age. In relation to the appeal against sentence it was submitted that the appellant was aged 33 and had no analogous previous convictions. It was further submitted that as a child he had suffered significant physical and emotional abuse at the hand of his father leading to the appellant having various difficulties during his upbringing including mental health and drink/drug problems. The court refused the appeal against sentence observing that the offences were grave involving a serious breach of trust and the appellant had an extensive record of offending including offences of violence. The court noted that whilst the appellant had been relatively young at the time of the first offence he was a grown man when the second offence was committed by which time he was aware that the abuse had been discovered and reported and, as such, the judge was entitled to conclude that an extended sentence was appropriate.