Graham Thomas Watson v. Her Majesty’s Advocate [2019] HCJAC 51

Note of appeal against conviction:- On 23 August 2018, at Edinburgh High Court, the appellant was convicted after trial on indictment of two charges:- (charge 1) the rape of AB on 15 January 2017 in Dundee whilst the complainer was asleep and under the influence of alcohol and continued after she had awoken contrary to section 1 of the Sexual Offences (Scotland) Act 2009; and (charge 3) the repeated sexual assault of CD on 14 and 15 January 2017 at a nightclub in Dundee by repeatedly touching her leg contrary to section 3 of the Sexual Offences (Scotland) Act 2009. On 4 October 2018 the appellant was sentenced to 5 years imprisonment. The appellant appealed against his conviction (by the time of the appeal hearing) on the following grounds:- (1) the dissimilarities in the conduct of the two offences did not permit the application of mutual corroboration and the penetration required to be corroborated; (2) no reasonable jury could have applied mutual corroboration between charges 1 and 3; and (3) the trial judge erred when directing the jury that there was sufficient evidence to apply mutual corroboration and the trial judge ought to have directed the jury that they could not convict in the absence of corroboration of penetration. The court made a number of criticisms of the way in which the grounds of appeal were drafted and stated that grounds of appeal should be isolated from the narrative and, rather, should set out “...in clear, and preferably numbered, propositions, the grounds of appeal which are to be advanced...”. Here it was submitted on behalf of the appellant (by counsel who did not draft the Note of Appeal) that whilst a lesser charge could corroborate a greater charge and that the nomen criminis was not determinative what was required was for the conduct to be indicative of an underlying unity of purpose which demonstrated that the incidents formed part of the a course of criminal conduct systematically pursued by the appellant. It was conceded on behalf of the appellant that the time and place elements did not prevent the application of the doctrine of mutual corroboration, however, it was submitted that the conduct had to be similar in character which it was not. The conduct described in the charges lacked the similarities necessary and the nature of charge 3 which amounted to an unwanted pass and sexual assault with no intention to rape and in light of the stark differences between the conduct described the separate incidents could not be regarded as component parts of a single course of conduct persistently pursued by the appellant. On behalf of the Crown it was submitted that the appellant’s position in relation to charge 3 was that the touching of the complainer’s leg was banter, however, that was not a defence and that the charge could stand alone without the need for mutual corroboration. It was further submitted that charge 1 could also be proved by the evidence from the cousin about the condition of the complainer. It was further submitted that what may be perceived as a less serious crime could corroborate a more serious crime, the critical issue being whether the evidence, when looked at as a whole, was capable of demonstrating an underlying unity of conduct systematically pursued by the appellant. It was only in cases where there was no possible connection between the offences that a case be removed from a jury’s consideration and generally the question of whether there were sufficient similarities was a question of fact and degree for the assessment of a jury under directions of the trial judge. It was submitted on behalf of the Crown that the no reasonable jury ground was a high test and there had been no material misdirection by the trial judge. The following factors were relied upon by the Crown:- (1) the complainers were women in their twenties; (2) the complainers were cousins of the appellant’s wife; (3) the appellant was 20 years older than the complainers; (4) the conduct occurred at/after a family gathering; (5) the complainers had been drinking; (6) the incidents occurred within a few hours of each other; (6) the assaults were sexual in nature; and (7) the appellant had sexual intercourse with one complainer and expressed an intention to have sex with the other. Here the court, referring to the 5 judge decision in MR v. HMA 2013 J.C. 212, refused the appeal. The court did state that it would be on rare occasions that a charge of rape including the use of force, could be corroborated by the application of the Moorov doctrine by proof of an assault by rubbing another complainer’s leg on a different occasion at a different time. However, in this case the court considered that it was significant that the two incidents occurred within hours of each other and were both connected to the same celebration attended by the complainers and the appellant. The court considered that the comment by the appellant to the complainer in charge 3 that he wanted to have sex with her later on was of some significance particularly given the appellant did have sex later in the evening with a different intoxicated cousin. These elements allowed the jury to hold that the two incidents were component parts of a single course of conduct systematically pursued by the appellant and that the doctrine of mutual corroboration could apply. The court observed that both charges could be proved without the need for mutual corroboration as the conduct in charge 3 of touching the complainer’s leg and making the comment was in essence admitted. In relation to the rape charge the court highlighted other evidence in relation to the state of the complainer’s intoxication when she was put to bed and the appellant accepted penetration had occurred. The court noted that the trial judge’s directions that the charges could only be proved by the application of mutual corroboration were in favour of the appellant. In a postscript the court made a number of observations in relation to the drafting of a note of appeal and what the note of appeal in the present case ought to have included.