Her Majesty’s Advocate v. SM (No. 2) [2019] HCJAC 40

Note of appeal under section 107A(1)(a) and 110(1)(e) of the Criminal Procedure (Scotland) Act 1995:- This appeal should be read in conjunction with the decision of the court in Her Majesty’s Advocate v. SM [2019] HCJAC 39. This was the second Crown appeal against the trial judge’s decision to sustain a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 and to acquit the respondent on the basis of insufficient evidence. The acquittal was quashed in relation to the ‘consent’ aspect of the submission and the matter was remitted to the judge to determine the second part of the submission. The second element of the submission was that there was insufficient evidence of rape as the complainer’s evidence on to the charge could not be corroborated by the evidence of the different complainer who spoke to the conduct contained in the docket. The trial judge sustained the ‘no case to answer’ submission for a second time and once again that decision was appealed by the Crown. The trial judge took the view that that there was a significant time gap between the incidents, namely, 7 years for which there was no explanation provided and in light of that significant time interval there required to be compelling similar features between the conduct described. The trial judge took the view that there were no such compelling similarities beyond those which feature in any rape case and very significant differences were present and the two incidents did not disclose a unity of purpose from which it could be inferred that they were part of a course of criminal conduct undertaken by the same individual. Here it was submitted on behalf of the Crown that whilst there were a number of differences between the two incidents described there were similarities which were sufficient for the jury to be able to decide whether an underlying course of conduct was present including:- (1) the complainers were physically assaulted by being struck on the face with sufficient force to knock them to the ground; (2) both complainers had been abducted and taken to a secluded spot; (3) the respondent had expressed remorse during each incident; and (4) the sexual intercourse had taken place in a similar way. Here the court reemphasised that the principle to be applied for mutual corroboration in sexual offences cases is clear, namely, that the court is looking for the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel such as demonstrate that the individual incidents are component parts of one course of conduct persistently pursued by an accused. A ‘no case to answer’ submission will only to be sustained where on no possible view of the similarities and dissimilarities in time, place and circumstances, could it be said that the separate incidents described were component parts of one course of conduct persistently pursued by an accused. The court reiterated that it is not sufficient to point to some similarities between two crimes, and to dismiss dissimilarities, for mutual corroboration to apply. Rather, what is required is for there to be an overall similarity in the conduct described which identifies it in the way described in MR v HMA 2013 JC 212 at paragraph 20 as “component parts of one course of conduct persistently pursued by the accused.” In the present case the court considered that the conduct described in the two episodes fell some way short of that and refused the appeal. The court highlighted the dissimilarities between the two episodes, in particular, that the second episode occurred over 7 years later and 350 miles away from the first.