Khalid Jamal v. Her Majesty’s Advocate [2019] HCJAC 22

Note of appeal against conviction:- On 22 May 2018, at Glasgow High Court, the appellant was convicted after trial of three charges:- (1) sexual assault of CQ contrary to section 3 of the Sexual Offences (Scotland) Act 2009 by seizing her, pushing her onto a bed there, restraining her, handling her breasts and kissing her on the neck; (2) rape of KL contrary to section 1 of the Sexual Offences (Scotland) Act 2009 by pushing her onto a bed there, restraining her, pulling down her lower clothing, forcing her legs apart and penetrating her vagina with his penis; and (3) sexual assault of KL contrary to section 3 of the Sexual Offences (Scotland) Act 2009 by preventing her from leaving the house, pushing her onto a bed there, restraining her, handling her breasts, pulling down her lower clothing and touching her on the body. The jury deleted the following words from charge 1 “and this you did with intent to rape her as defined in Section 1 of the aftermentioned Act” and deleted the following words from charge 3 “seize her, drag her into the house there, push her, put your fingers into her vagina, and this you did with intent to rape her as defined in Section 1 of the aforementioned Act”. The appellant was sentenced to a total of 6 years imprisonment comprising of 12 months in relation to charge 1, 5 years in relation to charge 2 and 18 months for charge 3, the sentence for charges 1 and 2 to run consecutively, however, the sentence on charge 3 was to run concurrently. The appellant appealed against his conviction in relation to charge 2, it being contended that the doctrine of mutual corroboration could not be used to enable the evidence of the sexual assault in charge 1 to corroborate charge 2. It was submitted on behalf of the appellant that it was clear from their deletions to the libel of charge 1 that the jury did not hold that the appellant had attempted to rape CQ and, as such, the circumstances of the conduct was materially different. It was submitted that there was a requirement for penetration to be corroborated. It was conceded that a lesser crime could corroborate a more serious one in the context of mutual corroboration, however, in the present case there was no evidence to corroborate the evidence of KL in relation to penetration. It was further submitted that the present case was distinguishable from the circumstances of AD v HMA [2017] HCJAC 84 in which there was evidence from which the jury were entitled to infer that it was only the robust response from a complainer that prevented the assault against her going further. On behalf of the Crown it was submitted that there had been evidence of a desire by the appellant to have sexual intercourse and there were a number of similarities between the conduct described:- (a) the appellant had met both complainers via a dating website; (b) the appellant had said he was younger than he was; (c) the conduct took place in the appellant’s bedroom; (d) the complainers found themselves in the bedroom on a pretext; and (e) the conduct of the appellant’s was sexual which he persisted in despite both complainers’ protestations. It was submitted there was an underlying unity of conduct to permit the application of the doctrine. Here the court refused the appeal. The court noted that, whilst the issue of penetration was focused in the context of mutual corroboration, it had a bearing on all cases of rape. The court stated that it is not necessary for the act of penetration to necessarily be specifically corroborated by, for example, scientific or medical evidence. The court considered that, having regard to the development of the law in relation to crime of sexual violence, in relation to penetration, corroboration can be found in facts and circumstances which support or confirm the direct evidence of the completed crime by the complainer and that a broad approach should be taken. The court noted that, whilst distress may not be capable of corroborating an account of the acts which caused that distress, care should be taken not to eliminate the issue of distress, particularly where it is extreme, when taken with other circumstances to support or confirm a complainer’s account that she was raped. The court went on to state that there will be occasions where the loss of clothing or dishevelment can be seen as corroborative when all the surrounding facts and circumstances are taken into account. In relation to a case involving mutual corroboration there is no principle that less serious criminal conduct like a a non-penetrative offence, cannot provide corroboration of what is a more serious crime involving penetration as seen in MR v HMA 2013 JC 212, the key issue being whether the evidence demonstrates a course of conduct systematically pursued by an accused. In relation to the present case the court considered that there were a number of similarities in time, place and circumstance between the conduct described by the complainers to demonstrate a course of conduct systematically pursued by the appellant.