Appeal Court rejects Crown’s argument that ‘mutual corroboration’ could be applied to ‘campaign of physical and sexual abuse’

The Criminal Appeal Court ruled that the doctrine of “mutual corroboration” could not be applied because of the “long lapse of time” between the relevant charges.

Lady Paton, Lord Malcolm and Lord Turnbull heard that the appellant Andrew Reilly was convicted in January 2016 after trial at the High Court in Aberdeen of 11 charges involving offences of disorderly conduct, physical abuse and sexual abuse of three former partners.

The Crown approached the case on the basis that it was necessary to find corroboration for each of the charges mentioned by application of the doctrine of mutual corroboration, as set out in the 1930 case of Moorov v HM Advocate.

In presenting the case to the jury the Crown divided the charges into two separate categories or chapters.

Chapter one grouped together the sexual offences, namely: charge (2) a single incident of rape concerning the complainer RG, charge (5) a single incident of rape concerning the complainer PB, and charges (6), (9) and (11), which concerned the rape and sexual assault of the complainer DH.

Chapter two categorised the physical assaults, namely: charge (1) repeated violent conduct concerning the complainer RG, charge (3) a single incident of assault concerning the complainer PB and charge (8) repeated physical abuse concerning the complainer DH.

The Crown did not suggest to the jury that the doctrine of mutual corroboration could be applied across the two chapters and the trial judge gave directions in line with the approach taken by the Crown.

Accordingly, in relation to the sexual offences, the lapse in time between charges (2) and (5) was about 20 years, the lapse in time between charge (2) and charges (6), (9) and (11) was about 24 years and the lapse in time between charge (5) and charges (6), (9) and (11) was about four-and-a-half years.

In relation to the physical assaults, the lapse in time between charge (1) and (3) was about 15 years, the lapse of time between charge (1) and (8) was about 24 years and the lapse of time between charge (3) and (8) was about nine years.

The trial judge directed the jury that there was “sufficient evidence” to permit them to convict on each of the crimes within each chapter on the application of the doctrine of mutual corroboration, if they were satisfied that it should be applied, and at the trial defence counsel did not make any submission of no case to answer.

However, on appeal counsel for the appellant – who had not appeared for him at trial – submitted that the nature of the charges within each chapter was “different”, to the extent that the doctrine of mutual corroboration “would not permit corroboration of any of the sexual charges to be found in the evidence as to the commission of the physical assaults, and vice versa”.

Taking this approach, he submitted that the principal issue in the appeal concerned the “passage of time” between the respective charges within each chapter.

It was argued that that the doctrine of mutual corroboration was not available in circumstances where a long lapse of time was present unless the evidence also disclosed similarities of an “unusual, striking or exceptional nature” such as would be capable of demonstrating that each offence was indeed part of a “course of criminal conduct persistently pursued” by the accused person.

In so far as the sexual offences were concerned it was submitted that what was described in evidence was little more than the “mechanical components” of most sexual assaults.

It was argued that the evidence disclosed “no features” which could be characterised as having the necessary exceptional or unusual quality such as would permit the application of the doctrine over such lengthy periods of time.

On behalf of the Crown the advocate depute submitted that all of the behaviour complained of arose in the context of domestic relationships which the appellant had entered into with different women and that this conduct therefore ought to be viewed as a “campaign of domestic abuse”.

Viewed in this way, it was argued that it was “artificial” to separate out the sexual misconduct from the physical assaults by him.

It was submitted that the appellant’s behaviour during the rape of RG and PB could be said to display conduct that was “striking or extraordinary”, which made the significant time gap of 24 years “less important”.

Overall, the features of the two events and the presence of the charges concerning the intervening complainer PB were said to be sufficient to permit the application of the doctrine of mutual corroboration.

However, the appeal judges did not agree with the Crown’s submission that all of the appellant’s conduct should be seen as a single campaign of domestic abuse.

Delivering the opinion of the court, Lord Turnbull said: “The period of time separating charge (2) and charge (5) was about 20 years. By any description or test this is a very long period. The period between charge (2) and charges (6), (9) and (11) is even longer.

“In our view, the similarities in the conduct relied upon by the Crown were in reality no more than the conventional sort of similarities which the court would be looking for in considering whether the doctrine of mutual corroboration could be applied. No extraordinary or special features are disclosed.

“What is missing in the present case, in our view, is evidence of continuity, such as is necessary to distinguish between isolated acts and a course of conduct which is persisted in.

“For these reasons we accept the submission advanced on behalf of the appellant to the extent that we agree that there was insufficient evidence available to provide corroboration of the evidence led in support of charge (2).”

The remaining sexual offences were those spoken to by the complainers PB and DH (charges (5), (6), (9) and (11)), and the judges rejected the appellant’s submission that there was insufficient evidence by way of similarity to permit the evidence led in support of these charges to provide mutual corroboration.

The judges explained: “Bearing in mind the whole circumstances of the evidence led in support of charges (5), (6), (9) and (11) we cannot say that the law would not permit the application of the Moorov doctrine. We cannot therefore say that the jury were not entitled to find the charges established in the manner which they did and in light of the directions given by the trial judge.”

Lord Turnbull added: “For the same reasons as we have identified above we are satisfied that there is nothing by way of an extraordinary or special feature disclosed in the evidence led in support of charges (1) and (3) such as would be eloquent of continuity and therefore sufficient to bridge the time lapse of around 15 years between them. We therefore conclude that there was insufficient evidence available to provide corroboration of the evidence led in support of charge (1).

“The evidence led in support of charges (3) and (8) disclosed that they were separated by nine years. Charge (3) concerned a single incident which appears to bear no meaningful similarity in terms of its circumstances with the various acts of violence specified in charge (8). For these reasons we also consider that the doctrine could not be applied as between these charges in order to provide the necessary corroboration.”

The judges said they would hear submissions on what, if any, impact their decision would have on sentence.