Evidence of non-penetrative sexual assault capable of providing ‘mutual corroboration’ of rape, appeal court rules

The Appeal Court of the High Court of Justiciary held that the act of penetration need not be corroborated by scientific or medical evidence, and that it could be corroborated by other facts and circumstances which “support or confirm the direct testimony” of the commission of the crime”, where the evidence demonstrates a “course of conduct systematically pursued” by the accused.

“Evidence of non-penetrative sexual conduct is capable of providing corroboration of penetrative conduct,” the Lord Justice General said.

‘Mutual corroboration’

Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that the appellant Khalid Jamal was convicted in May 2018 following a trial at the High Court in Glasgow of one charge of sexual assault on “CQ” and separately one charge of rape and one charge of sexual assault on “KL”. 

The only evidence relied upon by the Crown was that of the complainers, meaning the principle of mutual corroboration - as set out in the case of Moorov v HM Advocate 1930 JC 68, was central to the Crown case.

Jamal, who was sentenced to a total of six years imprisonment, appealed against his conviction on two grounds, but they raised the same basic issue of whether mutual corroboration applied so that evidence of the sexual assault on charge (1) could corroborate the rape on charge (2). 

Charge (1) initially included an allegation of attempted rape, but it was clear from the jury’s deletions in charge (1) that they did not consider that the appellant had attempted to rape CQ. 

It was argued that the circumstances of the behaviour and the character of the offences were therefore different, and the need to provide evidence which was sufficient to corroborate penetration or intent to do so was still required. 

It was accepted that, in appropriate cases, a lesser charge could corroborate a more serious one - the nomen criminis need not be the same for mutual corroboration to apply.

But it was submitted that mutual corroboration was not apt to apply in the circumstances between charges (1) and (2) as found proved by the jury. 

‘Course of conduct’

However, the appeal judges held that the jury were “entitled” to identify similarities in time, place and circumstances in the behaviour described by both complainers, such as to demonstrate “a course of conduct systematically pursued by the appellant”.

Delivering the opinion of the court, the Lord Justice General said: “It is accepted that, in all rape cases, there requires to be proof, by corroborated evidence, that the crime has been committed; that is that sexual intercourse has taken place without the complainer’s consent. This has come to be understood as meaning that the two elements ought to be looked at separately, or in isolation.

“This has led to an assumption that the act of penetration, when spoken to by a complainer, requires corroboration by scientific or medical evidence, such as the finding of semen in, or injuries to, the vagina, by an admission of intercourse, or, very much more rarely, at least prior to the growth in video, an eye or ear witness account of the event. In some situations, in which a complainer has given evidence of penetration, it has been held that only a conviction of attempted rape was available. This is both strange and anomalous.

“There is no sound reason for restricting the availability of corroboration of the act of rape to the type of scientific, medical or other evidence set out above. In relation to penetration, corroboration can be found in facts and circumstances which ‘support or confirm’ the direct testimony of the commission of the completed crime by the complainer. In a situation in which rape is alleged, a broad approach should be taken.

“It has been said that distress may not be capable of corroborating an account of the acts which caused that distress. This was conceded by the Crown in Smith v Lees 1997 SCCR 139. Accepting for present purposes that the concession was well made, care must still be taken not to eliminate distress, especially if it is of an extreme nature, as a significant factor which, at least when taken with other circumstances, ‘supports or confirms’ a complainer’s account that she was raped in the manner which she has described. 

“Thus there will be many situations, such as dishevelment or loss of clothing, where direct testimony of rape, in whatever form, can be seen as being corroborated when all the surrounding facts and circumstances are taken into account.”

Lord Carloway added: “In a mutual corroboration case, the confirmation or support in respect of both lack of consent and penetration comes from the existence of testimony from more than one witness speaking to different incidents which demonstrate an underlying unity of conduct. 

“There is no principle whereby what might be perceived as less serious criminal conduct, such as a non-penetrative offence, cannot provide corroboration of what is libelled as an apparently more serious crime involving penetration. The fundamental issue is whether the evidence demonstrates a course of conduct systematically pursued. 

“The cases referred to demonstrate that in a charge of rape, where the Crown rely on mutual corroboration, the necessary support for the complainer’s evidence of penetration can be found in other evidence which satisfies the jury that the accused was engaged in a course of sexual criminal conduct. 

“It is not necessary for this purpose to seek to label or to define the precise nature of that course of conduct. Evidence of non-penetrative sexual conduct is capable of providing corroboration of penetrative conduct. It is all a question of fact and degree.”