Martyn Glynn Daniel v. Her Majesty’s Advocate [2018] HCJAC 52

Note of appeal against conviction:- On 24 November 2017, at Edinburgh High Court, the appellant was convicted of a number of charges of sexual and physical abuse. He was convicted of the following charges:- charge 1 (rape of AB in 2007); charge 2 (malicious mischief); charge 3 (breach of the peace); charge 5 (abduction and rape of CD in 2009/10); charge 10 (assault); charge 11 (assault of EF in 2014/15); charge 12 (malicious mischief); charge 14 (rape of EF contrary to section 1 of the Sexual Offences (Scotland) Act 2009 in May 2014/15); charge 16 (a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) 2010 Act); charge 18 (abduction of EF); and charge 20 (assault of EF to her severe injury in 2015). The appellant was sentenced to an extended sentence in relation to charges 1, 5 and 14 to run concurrently with each other, the longest period being an extended sentence of 11 years comprising of an 8 year custodial term and an extension period of 3 years. The appellant was also sentenced to 6 months and 12 months imprisonment in relation to charges 11 and 20 respectively, to run concurrently with the extended sentence. In addition, the appellant was sentenced to a total of 7 months imprisonment in relation to charges 2, 3, 10, 12, 16 and 18 to run consecutively to the sentences all of which resulted in a total custodial element of the sentence of 9 years and 7 months. The appellant appealed against his conviction. The first ground of appeal contended that there had been a miscarriage of justice in relation to charges 1, 5, 14 and separately charges 11 and 20 due to alleged inadequacies of the directions given by the trial judge on the doctrine of mutual corroboration. It was submitted that in relation to the rape charges the only available corroboration was the application of the doctrine of mutual corroboration and the directions given were likely to confuse the jury as they would have been left with the impression that they should be looking for similarities in order to infer that the crimes were committed by the same person rather than that they occurred at all. The trial judge had focused on the doctrine as proving identification rather than the commission of the offence in circumstances where there had been no dispute about identification at the trial. The trial judge had failed to direct the jury that what was required was an underlying unity of purpose rather than a general disposition to commit offences of a similar kind and the phrase “single course of conduct systematically pursued” had not been used in the charge. It was submitted that rather than using the directions contained in the Jury Manual the rule of mutual corroboration had appeared to have been confused with the identification rule contained in Howden v HMA 1994 SCCR 19. The second ground of appeal was that there was insufficient evidence to corroborate charges 11 and 20 using the assault element in charge 5. It was submitted that the use of a knife in charge 5 had occurred in the context of the complainer trying to leave the flat after she had been raped whereas the evidence on charges 11 and 20 was of a violent relationship between the appellant and the complainer EF where no weapons were used. It was submitted that the issue could still be considered by the court here notwithstanding the absence of a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. On behalf of the Crown it was submitted that the charge delivered by the judge was adequate and made clear to the jury that to convict it was necessary for them to be satisfied that the crimes were similar and linked closely in time to allow them to infer a course of sexual misconduct. It was further submitted that the circumstances of charge 5 were able to corroborate charges 11 and 20 notwithstanding the differences between the conduct described as looking at the evidence as a whole an inference could be drawn that the conduct described formed a course of conduct. Here the court refused the appeal. The court considered that, whilst it is important to have regard to the terms of the Jury Manual and to follow the language used in it, in the present case despite some of the criticisms of the omissions being well founded, the directions given were deemed adequate. The court observed that, where the standard directions from the Jury Manual on the doctrine of mutual corroboration are given by a judge, it would be difficult to criticise them. In relation to the ground of appeal directed at the assault charges the court considered that the similarities of the conduct described, particularly given it was in the context of domestic violence, was sufficient to enable the jury to apply the doctrine of mutual corroboration.