T.N. v. Her Majesty’s Advocate [2018] HCJAC 20

Note of appeal against conviction:- The appellant was indicted to the high court in relation to charges of assault against his children, charges of child neglect, various sexual offences against his daughter, KN, and a sexual offence in relation to the daughter of his brother’s partner, CS. The appellant pled guilty to the neglect charges and was convicted after trial of the physical assault charges. The appellant was also convicted of charges 8 and 9 being two sexual charges involving KN and charge 16 a sexual offence involving CS. Charge 8 comprised of conduct during a period when KN was between 4 and 6 years of age (October 2001-October 2003), when the appellant, acting with other males, permitted and encouraged those males to engage in sexual intercourse with the child, which included handling her private parts, digitally penetrating her vagina, restraining her and tying her hands, and penetrating her vagina with their penises, thus raping her. The charge also extended to physical assaults. Charge 10 comprised of conduct of a single incident of rape of KN by the appellant when she was between 5 and 6 years of age (October 2002-October 2003), which involved violence and compulsion. Charge 16 involved a single instance of lewd and libidinous practices and behaviour towards CS, when she was aged 13-14 (May 2006 to May 2007), which included pulling her onto her back, restraining her, pulling down her trousers, handling her vagina and digitally penetrating her vagina. The Crown relied upon the evidence of each complainer speaking to the conduct libelled and the application of the doctrine of mutual corroboration. At the close of the Crown case a ‘no case to answer’ submission was made on behalf of the appellant in relation to charge 8. It was submitted that, whilst the evidence of CS was capable of providing corroboration of KN’s evidence in relation to charge 10 the circumstances of charge 8 were too dissimilar from that conduct relating to charge 16 for the doctrine to apply. The trial judge repelled the submission and the appellant was subsequently convicted. The appellant appealed against his conviction on the ground that the trial judge erred in repelling the ‘no case to answer’ submission it being submitted that the incident spoken to by CS was so different to the events described by KN that the jury should not have been permitted to consider that the events described formed part of a single course of conduct systematically pursued by the appellant. It was submitted on behalf of the appellant that whilst charge 8 involved art and part conduct by the appellant of the most serious nature involving both digital and penile vaginal penetration charge 16 was an offence involving the appellant as the single actor involving digital penetration and the method of restraint used in both charges was different. It was further contended that the utmost care ought to be applied in cases where there were only two complainers, like in the present, and that the two incidents could not be said to be component parts of a single course of criminal conduct pursued by the appellant. Here the court refused the appeal. The court reiterated a number of principles in relation to the development of the doctrine of mutual corroboration:- (1) the court requires to look for conventional similarities in time, place and circumstances in the behaviour such as demonstrate that the individual incidents are component parts of a course of criminal conduct persistently pursued by the accused; (2) the nomen juris of each criminal act is immaterial when considering whether the doctrine of mutual corroboration could apply; (3) the court stated that the alleged course of conduct has to be viewed as a whole, rather than in individual compartments, the issue being whether there is an underlying unity of conduct; (4) whether these similarities exist will often be a question of fact and degree for assessment by the jury; (5) there is no rule that what might be perceived as less serious criminal conduct cannot provide corroboration of what is libelled as a more serious crime; (6) the more similar the conduct is in terms of character, the less important a significant time gap may be whereas a course of conduct may be more readily inferred from ordinary similarities where the gap is time in short; and (7) caution has to be be exercised particularly where there are few instances of behaviour under consideration. In the present case the court considered that when the evidence was looked at as a whole, rather than compartmentalising it, the evidence indicated a course of conduct systematically pursued by the appellant. The court noted that charge 10 involved the rape of KN as actor and charge 8 was just part of a wider course of conduct involving KN both as actor and art and part with others. The court pointed to many similarities:- (1) the majority of the offending occurred in the complainers’ homes in Edinburgh within their bedrooms; (2) both complainers were female children within the appellant’s family circle; (3) in each case the offending involved penetrative vaginal abuse; (4) in each case the offending was accompanied by some form of physical restraint; (5) KN spoke to the men always being drunk including the appellant at times and CS spoke to the appellant being drunk; and (6) the offences took place in the context of a controlling, dysfunctional, domestic relationship (as seen in L(A) v HMA 2017 SCL 166) where domestic abuse, neglect, drug and alcohol abuse was common and was viewed by the court as an important similarity between the conduct described. The court reiterated that in cases where the application of the doctrine of mutual corroboration arises there will be both similarities and dissimilarities and, whilst a process of evaluation of those is required, the key issue is whether on no possible view could it be said that there was any connection between the two offences. Here the court considered that having regard to the particular circumstances of the case the trial judge was correct to repel the ‘no case to answer’ submission and was right to allow the jury to consider whether the doctrine should apply.