Mark William Duthie v. Her Majesty’s Advocate [2021] HCJAC 23

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Note of appeal against conviction:- On 19 February 2020, at Edinburgh High Court, the appellant was convicted of 29 charges following trial largely relating to conduct during his relationships with seven women over a 15 year period including three charges of rape  involving DC in 2003 (charge 2), NaD in 2011 (charge 20) and NaD in 2011 (charge 21). The remaining charges related to physical assaults against six complainers who had been partners of the appellant including the two complainers in the rape charges with the offences committed in the Dundee, Forfar, Arbroath, Montrose and Brechin areas. In relation to the rape charges the Crown relied upon the doctrine of mutual corroboration. At the close of the Crown case a ‘no case to answer’ submission was made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. In response to it the Crown argued that all of the charges, including those libelling physical assaults only, formed part of a course of humiliating, degrading and controlling conduct within a domestic relationship and that the evidence of the physical assaults could corroborate the rape complainers’ testimony. It was further argued that the time interval (8 years) was not too long, and the similarities were so strong, as not to require any special feature, however, in the event that such a special was required, the nature of the relationship provided the significant feature or compelling circumstance to allow the doctrine of mutual corroboration to apply. The trial judge considered that the rape charges had to be considered separately from the other charges, however, the jury were entitled to view the domestic setting as a special, compelling or extraordinary circumstance so as to allow for the application of mutual corroboration notwithstanding the interval of 8 years. The appellant was subsequently convicted and appealed against his conviction it being contended that the time interval between the rape charges meant that extraordinary or special features were required to make the similarities compelling (KH v HMA 2015 SCCR 242). It was submitted that the physical abuse of the other complainers referred to could not bridge the gap and the intervening relationships with these other complainers undermined the presence of a continuous course of conduct persistently pursued. Furthermore, the existence of domestic relationships was not an extraordinary feature and the conduct lacked the similarity required to establish that the offences were component parts of one course of conduct persistently pursued which was a requirement for the doctrine to apply. It was submitted that the trial judge erred in deciding that it was for the jury to determine if there was a break in any link due to the intervening relationships, it being a matter for the trial judge alone to determine the issue of sufficiency of evidence. On behalf of the respondent it was submitted that the trial judge had erred in compartmentalising the offences as the whole offending had to be looked at together and in a domestically abusive relationship an act of penetration could be a sexually violent one designed to achieve coercive control which illustrated an underlying unity of purpose between the physical and sexual assaults. It was submitted that the trial judge erred in directing the jury that the sexual offences were of a different character to the physical assaults as in the context of a coercive relationship a course of physical assaults could corroborate rape. It was further submitted that a series of violent and sexual behaviour, directed against different partners could reflect an underlying course of conduct of domestic abuse and in the present case there were sufficient and particular similarities between the charges to allow mutual corroboration to be applied. Furthermore, whether a course of physical assaults and verbal abuse could corroborate incidents of rape was a matter that should generally be left to the jury. The case was remitted to a Full Bench in order to consider as part of the appeal wider questions:- (1) could evidence of a course of physical assaults and verbal abuse within coercive and controlling domestic relationships corroborate the incidents of rape; (2) it is generally for a trial judge to determine the issue of sufficiency or whether that is a matter which should be left to a jury; and (3) whether a special, compelling or extraordinary circumstance is required before mutual corroboration could be applied to rapes which occurred several years apart. The court considered that in the circumstances of this case where there was no other sexual offending libelled the act of rape in each charge was only capable of being corroborated by both complainers speaking to the rapes, and in particular the acts of penetration, however, the domestic context of the relationships could be an important factor in determining whether the three acts, separated by eight years could be considered to be component parts of a course of conduct persistently pursued by the appellant. In relation to the issue of the ‘no case to answer’ submission the court affirmed that the only test is whether the judge is satisfied that there is insufficient evidence in law to convict the accused. In a case where mutual corroboration is relied upon it is for the court to decide whether there is evidence relative to two or more incidents which contains the requisite similarities to demonstrate a course of conduct persistently pursued and if the similarities do exist then the submission must be repelled and the jury will then decide whether an inference of course of conduct can be drawn from the similarities present. In relation to the “requirement” for the existence of “special, compelling or extraordinary circumstances” in cases where there is a significant time interval the court considered that it is not the case that, as a matter of law, there requires to be “special, compelling or extraordinary circumstances” in a lengthy time interval case, before the appropriate inference can be drawn. The court reiterated that what is required are similarities in time, character and circumstances which demonstrate that the individual incidents are component parts of one course of conduct persistently pursued by the accused. The court stated that in cases where there is a significant time interval it may be necessary to give directions to the jury that due to the time interval the similarities would require to be stronger ones than those needed where the incidents were more closely linked in time. In the present case the court refused the appeal after concluding that the trial judge was correct to repel the submission in terms of section 97. The court stated that despite there being a significant time interval, there were sufficient similarities in the appellant’s conduct, including the domestic background to the rapes, to allow the jury to draw the necessary inference of a course of conduct persistently pursued by the appellant. In addition, the direction to the jury that they required to find a special or compelling factor favoured the appellant.