Criminal Appeal Court critical of ‘inappropriate and insulting’ questioning of rape complainer

The Lord Justice Clerk, Lady Dorrian, repeated the observations made by the court in a previous case that both judges and lawyers must keep the examination of witnesses within “proper and reasonable bounds”.

The comments came as the court refused an appeal against conviction by Philip Donegan, a former Territorial Army officer who was sentenced to an extended sentence of 12 years after being found guilty of the rape of two women he met on dating site match.com.

‘Insulting cross-examination’

The judges observed that it was clear from the transcripts of the evidence at trial that the complainer A, who was in the witness box for three days, was subjected to “a lengthy, unjustified and sometimes insulting cross-examination” on issues which included her delay in reporting the offence, her varying accounts as to what occurred and her failure to shout out or seek during the attack. 

Moreover, rather than being tempered by the bench, the experience for the witness was “prolonged further” by the “inquisitorial nature” of the trial judge judge’s own questioning, which in some instances took the form of cross-examination in itself.

Furthermore, in the course of a discussion relating to the use of prior inconsistent statements, a comment was made by the trial judge, prior to the material being put to the complainer, that the impact of the material was that it “blows her evidence out of the water”. 

Lady Dorrian said: “While the comments were made outwith the jury’s presence, they were made in open court and in the presence of the accused. They were made before the material had been put to the complainer, and before her detailed explanations had been heard. In our view it is quite clear that these should not have been made at all, and were wholly inappropriate.”

She continued: “In recent years, in line with the approach in other jurisdictions, notable steps have been taken in Scotland seeking to address and demystify for court users various supposed ‘myths’ associated with the reporting of and the reliability of rape allegations; and to improve the experiences of those involved and those giving evidence. 

“Procedures have been adopted to address the perceptions of the jury and the requirement of their role, most notable section 288DA [of the Criminal Procedure (Scotland) Act 1995]. The conduct of the sort that occurred during the trial has the potential to erode such progress.” 

The issue was referred to in the case of Dreghorn v HM Advocate 2015 SCCR 349, and the judges in the present appeal considered it necessary to remind all involved of their respective roles when questioning witnesses.

Lady Dorrian added: “We accept that, to an extent, the matters in question constitute legitimate grounds for inquiry, but the nature, degree and content of the questioning should be kept within reasonable bounds.”

The Lord Justice Clerk, sitting with Lord Glennie and Lord Turnbull, heard that the appellant was convicted of the rape of the two complainers and stalking one of them following a trial at the High Court in Glasgow in April 2017, after the temporary judge Norman Ritchie QC had earlier dismissed a defence submission of “no case to answer”.

The Crown had relied on the doctrine of “mutual corroboration”, as set out in the case of Moorov v HM Advocate 1930 JC 68, in respect of the two charges of rape, and the trial judge considered that, while there were differences in the circumstances of each offence, the evidence allowed the inference of there having been a course of criminal conduct planned and perpetrated by the appellant and it was for the jury to assess that evidence and decide if it was prepared to draw the necessary conclusions.

Having been found guilty, the appellant was sentenced to a custodial term of eight years and an extension period of four years.

But he appealed against his convictions for rape; the first ground being that the Moorov doctrine was not applicable as the incidents were so different in nature and circumstances as to render the doctrine unavailable, and the second being that complainer A’s evidence was so full of contradictions that no reasonable jury properly directed could have convicted.

‘No miscarriage of justice’

Refusing the first ground of appeal, the judges observed that “caution” must be taken when applying the doctrine, particularly if there are only two incidents, but where there are both similarities and dissimilarities, the applicability of the doctrine should be left to the jury.

Delivering the opinion of the court, the Lord Justice Clerk said: “Aside from the fact that both complainers were raped during the course of dates with the appellant, there are a number of factors which, when looked at in the context of the totality of the evidence, as they must be, might reasonably be taken by a jury as being indicative of a single course of conduct undertaken by the appellant. We emphasise the point made earlier, that it is not the role of the judge or the appeal court to form a view of whether such matters do or do not give rise to such an inference, except in a case where it can be said with confidence that no reasonable jury properly directed could properly have drawn the necessary inference from them.”

“Accordingly,” Lady Dorrian added, “we consider that the evidence at the close of the Crown case, taken at its highest, disclosed sufficient similarities in time, character and circumstances for the matter to be remitted to a jury and for the jury to be entitled, if they so chose, to apply the Moorov doctrine and conclude that in each instance the appellant’s behaviour was part of the same course of action. The trial judge was accordingly correct to refuse the appellant’s motion and this ground of the appeal should be refused.“

In relation to the second ground of appeal, the court was told that when the jury retired to consider their verdict a written note was sent asking whether they could find the accused guilty of the rape of rape of complainer B but not guilty of the rape of complainer A, in response to which the judge gave further directions that for the mutual corroboration rule to apply they had to accept both complainers’ accounts - they could either convict on both charges or they had to acquit of both charges - there was “no halfway house”.

Rejecting the argument that there had been a “miscarriage of justice”, the court said the credibility and reliability of the witnesses was a matter solely for the jury and observed that they must be presumed to have followed the directions given to them.