Rapist who claimed amended charge caused him ‘prejudice’ loses appeal against conviction

The appellant claimed that the trial judge’s decision to allow a Crown motion to amend one of the charges to extend the timeframe of the libel had caused him “prejudice” by making it “easier” to apply the doctrine, but the Appeal Court of the High Court of Justiciary ruled that the change did not alter the “character of the offence”.

‘Amended libel’

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that the appellant Ronnie McCafferty was sentenced to a total of 10 years’ imprisonment after being convicted of four charges following a trial at the High Court in Glasgow in March 2019. 

The first two charges involved the complainer, “KH”, the granddaughter of his then partner “AC”, and libelled “lewd, indecent and libidinous practices” at common law, when she was aged between six and 11, and under section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995, when she was over 12 and under 16.

The dates of the combined libels were between November 2001 and July 2010 and the loci included an address in Uddingston where the appellant lived with AC.

The third charge libelled the rape of “KH”, when she was aged between 11 and 13, on two occasions between November 2006 and November 2009 at the address in Uddingston and in a hotel in Benidorm during a family holiday.

The fourth charge involved the repeated rape of his partner “AC” at the address in Uddingston “while she was asleep and under the influence of alcohol and prescribed medication”.

The original date of the libel in charge 4 was between January 2000 and December 2002, which had accorded with the complainer’s statement to the police, which she had initially adopted in her evidence. 

But she had later stated in her testimony that the sexual activity could have occurred at any time up to 2010, when she had separated from the appellant.

At the conclusion of the evidence for the Crown, the advocate depute moved to amend the libel in order to bring the dates into line with the complainer’s evidence. 

‘Prejudice’

The appellant, whose defence was one of complete denial, opposed the motion on the basis of “prejudice”, arguing that the change would make it “easier” to apply the principle of mutual corroboration when the amended latitude was taken into account. 

But the trial judge allowed the amendment in terms of section 96 of the Criminal Procedure (Scotland) Act 1995, on the basis that the character of the offence was not changed, and because there was no prejudice to the defence, since the appellant’s position remained one of complete denial.

The defence also lodged a “no case to answer” submission, arguing that there was “insufficient evidence” on each of the charges to apply the principle of mutual corroboration. 

The complainer in charges 1 to 3 had spoken about activities when she was a child, primarily at her grandmother’s house, but also at other locations. 

The offences, which had been committed “clandestinely, persistently and frequently” over a period of time, displayed a pattern of physical conduct including oral sex. 

In contrast, the incidents in charge 4 related to a specific form of sexual activity in relation to an adult, in the context of a “long-term cohabiting relationship”.

However, the trial judge held that there were similarities sufficient to permit the jury to infer that the accused had “systematically pursued an underlying course of criminal conduct”, and the appellant was duly convicted.

On appeal it was submitted that the trial judge had “erred” in allowing the Crown’s motion to amend the latitude of charge 4.

It was argued that the change from two years to over 10 years had “caused prejudice” in relation to the application of mutual corroboration, as the expansion of the timeframe “cemented the notion of a unity of purpose”.

It was also submitted that the trial judge had erred in repelling the submission of no case to answer, as there was “insufficient evidence to link the crimes” libelled in charges 1 to 3 with that libelled in charge 4. 

The crimes in charges 1 to 3 were committed against a young child in a variety of domestic and external locations, and were “significantly different” in nature to that in charge 4, which was committed in the context of a longstanding cohabitation.

‘Striking similarities’

However, the court rejected both grounds of the appeal.

Delivering the opinion of the court, the Lord Justice General said: “Whether to allow an amendment to an indictment in terms of section 96(1) of the Criminal Procedure (Scotland) Act 1995 is a matter primarily for the discretion of the court at first instance, provided that the amendment does not change the character of the offence.

“The complainer had said at first that she thought that the final episode of intercourse had occurred only a few weeks after the appellant’s detention in 2010, but accepted that, in terms of her police statement, it could have been as early as 2001 or 2002. 

“The amendment did not alter the character of the offence. It did not cause the appellant any difficulties in dealing with the complainer’s testimony. 

“He had been able to cross-examine the complainer and thereby challenge her credibility and reliability… The appellant, who would have been the only other potential witness to the incidents, had been free to give evidence to contradict the complainer’s testimony, if that had been his position. 

“This ground of appeal fails. The effect is that the jury have held that, in relation to charge 4, the incidents occurred some time between 2001 and 2010.”

On the issue of mutual corroboration, Lord Carloway added: “It is true that there are differences in the nature and status of the complainers; one being an adult with whom the appellant was cohabiting and one a child. One set of circumstances involved clandestine sexual activity and the other paedophilic grooming followed by sexual abuse. 

“There were, in contrast, striking similarities between the offences, the most obvious being that much of the sexual activity involving KH occurred in the same house as that involving AC. They occurred at approximately the same time, whatever dates for the commission of charge 4 are selected. 

“Both included offences of rape. Both were in a domestic setting, with the appellant in a position of trust in relation to the complainers who were both vulnerable in one way or another. 

“In these circumstances…it cannot be said that on no possible view was there any connection between the offences. The appeal against conviction is accordingly refused.”