High Court acquits man convicted of raping 13-year-old in park after challenge to jury directions

About this case:

• Citation:
  [2023] HCJAC 37
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Counsel for appellant Sean Hogg argued that the trial judge had misdirected the jury as to the corroborative effect of evidence led from a friend of complainer KM. The jury acquitted the appellant of three other charges on the same indictment involving another complainer, JMM, after returning verdicts of not proven for each.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Pentland and Lord Matthews. Donald Findlay KC appeared for the appellant and Ruth Charteris, the Solicitor General, for the Crown.

Vague evidence

The appellant, aged 17 at the time of the offence, was convicted of raping the complainer, at the time aged 13, at Dalkeith Country Park on various occasions between 3 March and 10 June 2018. KM gave evidence by way of two Joint Investigative Interviews dated to October 2018 and July 2019, while the complainer in the other charges, JMM, gave evidence by way of commission on 12 October 2022, the tape of which was played to the jury.

The Crown case was solely based on the application of mutual corroboration between the two complainers. It was agreed by the trial judge that the case was a traditional application of the Moorov doctrine, and no alternative verdicts needed to be addressed. However, he also directed the jury that evidence of distress given by a friend of KM’s, AM, was capable of corroborating the alleged rape in June 2018.

Following the announcement of the verdict, the advocate depute submitted that the verdict could not stand and the trial judge agreed on the basis that it was incompetent to acquit on charge 1 but to convict on charge 2. The judge seemed to be about to record the verdict as an acquittal, before noting that distress might provide corroboration. In his report, the trial judge stated that he considered it was open to the jury to find corroboration of the evidence of the very last incident libelled on the basis of the distress.

Counsel for the appellant submitted that a miscarriage of justice had occurred as a result of the trial judge’s misdirection as to the corroborative effect of AM’s evidence, which was incapable of providing corroboration in the way he suggested it could. The trial judge misdirected the jury by suggesting that such vague evidence could provide corroboration in the circumstances of this case.

Root of the case

Lady Dorrian, delivering the opinion of the court, began: “The Crown presented the case throughout as wholly dependent on the traditional application of Moorov between two complainers. The trial judge complicated matters by directing the jury that corroboration by distress could be found in relation to the June incident at Dalkeith Country Park. Given the discussion which had taken place, and the nature of the evidence, he misdirected himself in doing so; and he misdirected the jury.”

She continued: “He misdirected himself in that it was procedurally inappropriate for him to have given the direction without raising the issue with parties, when (a) there had been a detailed discussion in which the Advocate Depute made it clear that the sole basis for approaching the case was Moorov; (b) where the judge appeared to have acknowledged this to be correct; and (c) both parties had addressed the jury on that common understanding.”

On the responsibilities of the trial judge, she said: “If the judge chooses, prior to the speeches, to engage in a discussion with parties determining the source and nature of the corroborating evidence to be relied upon, fairness demands that he should raise with parties any alternative approaches to corroboration which he considers to arise or upon which he intends to direct the jury. Here the issue went to the very root of the Crown case in respect of part of charge 2.”

She went on to say: “The only possible basis for any verdict of guilt on charge 2 therefore was the direction relating to distress. The jury returned a verdict which indicated guilt in respect of both the March and the June incidents. Given that the clear direction was that corroboration by distress could only apply to the June incident that verdict is inept. There was no conceivable route to the verdict which the jury returned.”

Vague as to circumstances

Addressing a Crown submission seeking a substitute verdict, Lady Dorrian said: “The evidence had to be such as would enable the jury to conclude that the complainer exhibited genuine distress to AM, which was related to, and caused by, the March incident. We do not consider that the evidence in this case would have entitled the jury to reach such a conclusion without indulging in a significant degree of speculation.”

She continued: “The evidence relied on by the Crown is far too vague as to timing, context and circumstances to be available for corroborative purposes. For that reason alone it would not be open to us to substitute the verdict sought by the Solicitor General.”

Allowing the appeal, Lady Dorrian concluded: “The result is that the appeal must succeed, and the appellant must be acquitted. We should make it clear however that we are satisfied that, but for the error of the trial judge, this would have been the result at trial. The only available means of corroboration was the application of Moorov; without that there could be no route to any verdict of guilt. The jury having rejected Moorov there could be only one result: acquittal.”