Philip Donegan v. Her Majesty’s Advocate [2019] HCJAC 10

Note of appeal against conviction:- On 18 April 2017, at Glasgow High Court, the appellant was convicted after trial of the rape of two females whom he met through a dating website and the stalking of one of them. The Crown relied upon the application of the doctrine of mutual corroboration in relation to the rape charges (charges 3 and 5). In relation to charge 3 (the rape of complainer A) the appellant was convicted by a majority verdict and in relation to charge 5 (the rape of complainer B) he was found guilty by a unanimous verdict. In relation to a charge of stalking complainer A by leaving a card and lip balm at her home, repeatedly sending her messages, repeatedly telephoning her and sending her a partially clothed photograph of herself and threatening to send it to her employer the appellant was found guilty by a unanimous verdict. The appellant was sentenced to an extended sentence of 12 years comprising of a custodial element of 8 years and an extension period of 4 years. The appellant appealed against his conviction and two grounds were argued at the appeal:- (a) that due to the incidents relating to charges 3 and 5 being so different in nature and circumstances the Moorov doctrine should not have been available to the jury; and (b) complainer A’s evidence was so full of contradictions that no reasonable jury properly directed could have convicted. It was submitted on behalf of the appellant that whilst charges 3 and 5 were both libelled as rapes contrary to section 1 of the Sexual Offences (Scotland) Act 2009 any similarities between the conduct was superficial, for example, the initial contact was made and dates were arranged through a dating website together with the domestic setting of the alleged offences, however, it was submitted the evidence did not disclose the conventional similarities in time, place and circumstances as to demonstrate a course of criminal conduct persistently pursued by the appellant and the doctrine ought not apply. It was submitted that charge 3 was a violent and prolonged attack which was markedly different in character from charge 5 where intercourse was initially consensual but then consent had been withdrawn. In relation to the second ground of appeal it was submitted that the guilty verdicts returned by the jury in relation to charges 3 and 5 were ones that no reasonable jury, properly directed, could have returned for the following reasons:- (1) contradictory nature of complainer A’s evidence, in particular contradictions appeared in the “101” call, in the statements and discussions with various police officers, in the comments she had made to her friend JY and in what she had reported to her GP; (2) Implausible nature of complainer’s evidence in that she not only failed to make a complaint to police she also continued normal contact with the appellant via text, social media and telephone calls after the alleged rape; and (3) jury uncertainty in that the jury asked a question during their deliberations “Can we find him guilty on No 5 but not on No 3?” Further directions were given that “However, for charges 3 and 5 you have to accept both of the complainers’ accounts to apply the special rule. It means that can either convict on both charges or must acquit of both charges; there is no halfway house.” On behalf of the Crown a number of similarities were pointed to in relation to the application of the Moorov doctrine:- (1) the appellant had used Match.com to arrange sexual encounters; (2) the complainers were much younger than the appellant; (3) each complainer had a degree of vulnerability; (4) there was evidence of calculation in that the appellant had made exaggerated enquiries with the complainers regarding their compliance with the Match.com safety protocols in that it appeared he was laying a trail of apparent innocence to “future proof” his actions; (5) the appellant sought to consummate the relationships at an early stage; (6) in each case alcohol consumption by the appellant was a factor; and (7) the appellant lied about his name to both calling himself Williamson to complainer A and Lafferty to complainer B. In relation to the second ground of appeal it was submitted on behalf of the Crown that where there is a sufficiency of evidence it will be only in the most exceptional circumstances that an appeal of this kind will succeed. Here the court refused the appeal. The court considered that, taking the Crown case at its highest at the close of their case, the conduct disclosed sufficient similarities in time, character and circumstances for the matter to proceed to the jury and for the Moorov doctrine to be available to them and entitled them to conclude that in each instance the appellant’s conduct was part of the same course of conduct. In relation to the second ground of appellant the court noted that appeals of this type face a very high test and may only succeed in exceptional circumstances. The court stated that this ground of appeal largely related to complainer A’s credibility and reliability, in particular, her failure to report the rape on various opportunities and various inconsistent statements made by her. The court considered that these were all matters for the jury to consider in deciding whether to accept or reject in whole or in part the complainer’s evidence just as it was for them to consider the other witnesses’ evidence in the case and, as such, the court stated that it could not be said that no reasonable jury properly directed could have returned the verdict that it did. The court went on to make certain criticisms of the approach of defence counsel, the advocate depute and the trial judge in relation to complainer A and the evidence she gave over 3 days. The court described the cross-examination of complainer A as “lengthy, unjustified and sometimes insulting” with no objection by the advocate depute and further criticism was made of the inquisitorial input by the trial judge. The court went on to remind those involved in the examination of witnesses of their respective obligations and responsibilities.