Ronnie Hume McCafferty v. Her Majesty’s Advocate [2019] HCJAC 92

Note of appeal against conviction:- On 12 March 2019, at Glasgow High Court, the appellant was convicted after trial of four charges:- (1) lewd, indecent and libidinous practices and behaviour against KH when she was aged 6-11 years; (2)  contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995  re KH when she was aged 12-16 years; (3) the rape of KH on two occasions (one in Uddingston and one in Benidorm) when she was aged 11-13 years; and (4) the repeated rape of AC, the appellant’s partner, in Uddingston over a ten year period “while she was asleep and under the influence of alcohol and prescribed medication”. On 9 April 2019 the appellant was sentenced to 7 years imprisonment on charges 1, 2 and 4 and 10 years in relation to charge 3 which sentences were to run concurrently with each other. During the course of the trial, at the close of the Crown case, the Advocate depute moved to amend the libel in accordance with the evidence. The time period in charge 4 was originally 2000-2002, however, the complainer gave evidence that the sexual abuse continued to 2010. The motion to amend the libel was opposed on behalf of the appellant on the grounds that such an amendment would be prejudicial to the appellant as it would make it easier to apply the principle of mutual corroboration with the dates of the other allegations involving KH (which were alleged to have occurred between 27 November 2001 and 27 July 2010). The trial judge allowed the amendment, on the basis that the character of the offence was not changed and there was no prejudice to the defence in light of the appellant’s position of denial in relation to all 4 charges. Following the amendment a 'no case to answer' submission was made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 it being contended that there was insufficient evidence and the principle of mutual corroboration could not apply, in particular, the complainer in charges 1-3 was a child and the conduct displayed a pattern of physical conduct including oral sex whereas the incidents relating to charge 4 related to a specific type of sexual conduct in the context of a long term consensual cohabiting relationship with an adult. The trial judge repelled the submission on the basis that there were sufficient similarities present between the described conduct to permit the jury to infer that the appellant had systematically pursued an underlying course of criminal conduct. The appellant appealed against his conviction it being contended that the trial judge had erred in allowing the Crown motion to amend the libel in charge 4. It was submitted the amendment from a period of 2 years to 10 years was based on guesswork on the part of the complainer and the amendment had caused prejudice in relation to the application of the doctrine of mutual corroboration. In addition, it was submitted that the trial judge had erred in repelling the no case to answer submission in that there was insufficient evidence to link the crimes libelled in charges 1 to 3 with charge 4, in particular, the age of the complainers and the nature of the relationship between the appellant and the complainers was markedly different. On behalf of the Crown it was submitted that their power of amendment was wide and there had been no change in the character of the offence with the amendment simply bringing the libel within the terms of the evidence given by the complainer. In addition, there had been no prejudice to the appellant and the remedy available to him was an adjournment. In relation to the question of sufficiency it was submitted that generally the question of whether sufficient similarities existed was often a question of fact and degree requiring assessment by the jury. It was submitted in the present case there was sufficient similarities between the conduct described in charges 1-3 and charge 4 for the issue to be left to the jury. Here the court refused the appeal. In relation to the amendment to the libel in charge 4 the court reiterated that there is a wide power of amendment available to the Crown to bring a charge to within the evidence led and whether to grant an amendment is a matter for the discretion of the court at first instance provided that the amendment does not change the character of the offence.  The court noted that the amendment brought the charge in line with the evidence led from the complainer, to which no objection had been taken on behalf of the appellant. The amendment did not alter the character of the offence. In relation to the issue of the application of the doctrine of mutual corroboration the court considered that, whilst there were differences between the conduct described by both complainers, in particular, their ages and the nature of their relationship with the appellant, there were present striking similarities between the offences. In particular, the court pointed to  the fact that much of the sexual activity involving KH occurred in the same house as that involving AC, at around the same time, both involved rape in a domestic setting with the appellant in a position of trust and the conduct tended to occur when the complainers were in bed and either sleeping or pretending to be asleep.