Man convicted of 14 charges against four ex-partners loses appeal against conviction

About this case:

• Citation:
  [2022] HCJAC 27
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Appellant DM argued that the trial judge had failed to provide specific directions identifying the charges which relied upon the Moorov doctrine for corroboration and those for which other corroborative evidence was available.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Malcolm and Lord Matthews. F MacIntosh QC and Brannigan, advocate, appeared for the appellant and A Prentice QC for the Crown.

Serious course of behaviour

The charges against the appellant spanned a period from December 2009 to June 2019 and all related to complainers who had been in a relationship with him at the relevant times. All but three of the charges averred repeated instances of behaviour, with the remaining three relating to specific assaults and an instance of abusive behaviour. There were also two dockets relating to a non-sexual assault on one complainer and a breach of special conditions of bail relative to another complainer.

In their evidence, each complainer spoke to a serious course of repeated sexually abusive and violent behaviour, with three of them speaking to being sexually assaulted and raped in similar circumstances. It was submitted that the trial judge had failed to provide specific directions to the jury about which of the charges required application of Moorov and which were supported by independent evidence.

It was accepted that the trial judge need not analyse the evidence in a compartmentalised way, but it was submitted that to understand the doctrine, the jury needed examples. In the absence of these the jury might have thought that abusive behaviour and breach of bail might be seen as illustrative of a course of conduct such as would allow that evidence to corroborate the sexual charges.

Additionally, it was submitted that, while the judge was correct to direct the jury that evidence of non-sexual assaults could not be used to corroborate rape, he failed to direct them that the sexual charges had to be considered together and separately from the other charges which could not provide corroboration for the sexual charges. The absence of a specific direction to consider the sexual charges as a separate group constituted a miscarriage of justice.

Read as a whole

Lady Dorrian, delivering the opinion of the court, observed: “The issue in this case is not whether the trial judge clearly identified instances where independent corroboration might be available, since in essence this really only applied in connection with charge 13, as his directions made adequately clear. The real issue is whether the trial judge gave the jury a sufficient road map to enable them properly to identify those circumstances and charges in respect of which the doctrine of mutual corroboration could apply, and those where it could not.”

She explained further: “It is not suggested that there were any charges on the indictment incapable of proof by reference to the doctrine of mutual corroboration; rather the issue is whether the trial judge gave adequate directions which would enable the jury to identify those types of behaviour, or sets of charges, which might legitimately be grouped together for the application of the rule of mutual corroboration, and those which did not.”

Examining the content of the trial judge’s charge in detail, Lady Dorrian said: “Read in isolation one might reasonably say that the delineation between a course of sexual assault, whereby evidence of one complainer regarding the individual incidents thereof may be corroborated by evidence of another complainer of a similar incident, and a course of physical and verbal abuse which required to be considered separately, was not made sufficiently clear. However, as is ever the case, the effect of individual passages in a judge’s charge must be read in the context of the charge as a whole.”

She went on to say: “It can be seen that the trial judge directed the jury that they could not find corroboration for the evidence on sexual charges in evidence on non-sexual charges, that corroboration for evidence on assault charges could be found in evidence of assault and that corroboration of evidence of threatening and abusive behaviour could be found in other such evidence.”

Lady Dorrian concluded: “It was correct to direct the jury that whether they were satisfied that the requisite similarities and conditions of the doctrine existed before they could apply it was a matter for them. Whether the offences required to be considered as falling into three categories to which Moorov might apply, as directed by the trial judge, or only two (sexual offences on the one hand and the remaining abusive and violent behaviour) is a moot point, but the direction was favourable to the accused in any event.”

The appeal against conviction was therefore refused.