Full High Court bench rejects appeal by man convicted of rapes eight years apart

Mark Duthie was convicted of 29 charges stemming from relationships he had with seven women over 15 years. Three of these charges were for rapes which took place in 2003 and 2011. The other charges consisted primarily of physical assaults, some to injury, which did not have a sexual element to them.

The appeal was heard by the Lord Justice General, Lord Carloway and the Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies, Lord Matthews, and Lord Pentland. The appellant was represented by Paterson, solicitor advocate, and the respondent by Farquharson QC.

Controlling conduct

During trial, the appellant made a submission of no case to answer. In order to secure convictions on the rape charges the Crown relied upon the doctrine of mutual corroboration, submitting that all of the charges, including those libelling assault only, formed part of a course of humiliating, degrading and controlling conduct within a domestic relationship.

The trial judge determined that the rape charges had to be considered separately from the other charges, but that the jury were entitled to view the domestic setting as a special, compelling or extraordinary circumstance such as would allow for the application of mutual corroboration notwithstanding the time gap. He directed the jury that they had to find a “special or compelling feature” which enabled them to conclude that the rapes were related despite the time gap.

The Crown’s position was that the extraordinary feature was the similarities in the circumstances of both complainers as young and vulnerable women and the wider campaign of domestic abuse against both women. The defence maintained that domestic abuse was not a special feature as to allow for the two rapes to be considered as part of the same course of criminal conduct.

It was submitted for the appellant that the physical abuse of the other complainers between the two rapes could not bridge the gap between them. Domestic abuse, which involved physical assaults and verbal abuse, had to be looked upon as of a different character to rape. Further, the trial judge had erred in directing the jury that it was for them to decide if there had been a break in the link between the charges. Sufficiency of evidence was a matter for the trial judge to determine alone.

In response to the appeal, the Crown submitted that the trial judge had erred in separating the assault and rape charges as being of different characters. The whole course of the offending had to be looked at together, and in the context of a domestically abusive relationship the act of penetration could be a sexually violent one designed to achieve coercive control.

It was further submitted that there were sufficient similarities between the two instances of rape to allow them to mutually corroborate each other. Both complainers had suffered physical and verbal abuse as well as sexual abuse. Two of the three were preceded by assaults, and sexual gratification was obtained by forced penile penetration, either when the complainers were asleep or actively not consenting.

Similarities in character

 The opinion of the court was delivered by Lord Carloway. On mutual corroboration generally he noted: “Before looking to see whether there is proof of a course of conduct, there first has to be a search for similarities in the time, character and circumstances. When analysing the similarities in circumstances, the mutually corroborative testimony does not have to relate to incidents which carry the same nomen criminis.”

Citing the case of MR v HM Advocate (2013), he continued: “The focus in MR was on different kinds of sexual offending against female relatives, but the court acknowledged that ‘sexual and physical abuse of different kinds’ within the same family unit was one model of that nature. A sexual offence of a relatively minor type might corroborate more serious sexual conduct. In cases such as the present, where there is direct testimony from two or more complainers, it is the underlying similarity of the conduct that is important and not the name which is attached to it.”

Considering whether non-sexual assaults could be used to corroborate sexual offences where both occurred in a domestic context, he said: “In the circumstances of this case, in which there was no other sexual offending libelled, the act of rape in each charge was only capable of being corroborated in this manner by both complainers speaking to the rapes, and in particular the acts of penetration.”

However, he went on to say: “The domestic context of the relationships could be an important factor in determining whether the three acts, some eight or more years apart could be classified as component parts of a course of conduct persistently pursued by the appellant. The existence of the time gap, and the absence of intervening complaints of sexual offending, could also be a significant feature, but the jury were entitled to take into account events which they were satisfied had occurred in the intermediate domestic relationships when deciding this issue.”

Sufficient similarities

Turning to whether the trial judge was right to reject the appellant’s no case to answer submission, Lord Carloway said: “The court must decide whether there is testimony relative to two or more incidents which, if accepted, contains the requisite similarities such as may demonstrate a course of conduct persistently pursued. If these similarities exist and one inference is that there was such a course of conduct, the no case to answer submission must be repelled.”

On whether the Crown required to establish special or compelling circumstances to allow for corroboration across the eight-year time gap, he said: “It is not the case that, as a matter of law, in a lengthy time gap case, there require to be special, compelling or extraordinary circumstances before the appropriate inference can be drawn. What is essential, in terms of the settled law are similarities in time, character and circumstances such as to demonstrate that the individual incidents are component parts of one course of conduct persistently pursued by the accused.”

Lord Carloway concluded: “Although there was a significant time gap between the rapes involving the two complainers, there were sufficient similarities in the appellant’s actings, not least the domestic context of the rapes, to enable the jury to draw the appropriate inference of a course of conduct persistently pursued by the appellant. It follows that the trial judge was correct to repel the no case to answer submission.”

For these reasons, the appeal against conviction was refused.