V.B v. Her Majesty’s Advocate [2016] HCJAC 101

Note of appeal against conviction:- On 12 September 2014, following a trial at Aberdeen High Court, the appellant was convicted of a number of charges:- (charge 1) a charge of rape contrary to he common law; (charge 3) a statutory charge of using lewd, indecent and libidinous practices and behavior contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995; (charge 4) a charge of rape and sexual assault contrary to sections 1, 2 and 3 of the Sexual Offences (Scotland) Act 2009; (charge 6) a charge of attempted rape contrary to the common law; (charge 7) a charge of sexual assault contrary to section 3 of the Sexual Offences (Scotland) Act 2009; and (charge 8) a charge of sexual assault contrary to section 3 of the Sexual Offences (Scotland) Act 2009. On charges 1 and 4, a cumulo extended sentence of 11 years was imposed with 9 years representing the custodial element and 2 years the supervision element. On charge 3, the appellant was sentenced to 2 years imprisonment concurrently, in relation to charge 6 he was sentenced to 2 years imprisonment concurrently and in relation to charges 7 and 8, a cumulo sentence of 12 months imprisonment was imposed again to be served concurrently. The appellant appealed against his conviction on the grounds that the trial judge misdirected the jury by omission, in that he failed to give a specific direction that hearsay evidence could not be used as proof of crucial facts and could not be used for the purpose of corroborating a complainer’s evidence. It was submitted on behalf of the appellant that the Crown had led evidence of disclosures by a complainer to other witnesses and, in leading such hearsay evidence, the trial judge ought to have made clear to the jury what use they could put the evidence to. The judge had given the jury standard directions in relation to corroboration and the application of mutual corroboration, however, the judge did not give a clear direction that evidence from a witness about what a complainer told her could not provide corroboration of what the complainer was alleging and there was a risk that a jury would treat what the witness recounted the complainer as saying as being evidence from a separate source and corroborative. It was further submitted on behalf of the appellant that there were other pieces of hearsay evidence which did not form part of the res gestae nor did they amount to de recenti statements and accordingly they required an appropriate direction. It was submitted on behalf of the appellant that in light of the failure by the trial judge to give appropriate directions in relation to the hearsay evidence that had been led without objection by the Crown there had been a miscarriage of justice. On behalf of the Crown it was submitted that the hearsay evidence had not been objected to and as he had been legally represented section 118(8) of the Criminal Procedure (Scotland) Act 1995 was relevant. It was further submitted that the jury had clearly accepted the three complainers as credible and reliable and, in any event, the Crown had not relied upon the hearsay evidence referred to but rather the evidence of the three complainers and the application of the doctrine of mutual corroboration and there had been no miscarriage of justice. Here the court refused the appeal. The court considered that the absence of a specific direction in relation to the evidence referred to did not amount to a misdirection. The court noted that the Crown case was dependent upon the application of the doctrine of mutual corroboration and that the directions given to the jury in relation to it could not be criticised and it was made clear to the jury that there was no scope for corroboration to be found in the case other than by application of the Moorov doctrine.