Rapist who claimed mutual corroboration could not apply loses appeal against conviction

The Appeal Court of the High Court of Justiciary held that there was no rule of law whereby a less serious sexual offence could not provide corroboration of a more serious sexual crime.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull, heard that the appellant, AD, went to trial in the High Court at Edinburgh on an indictment containing five charges relating to two male and two female complainers, each of which libelled a contravention of the Sexual Offences (Scotland) Act 2009.

He was ultimately convicted by a majority on two charges: (001) assaulting a boy aged nine or ten by pushing him on to his bed and pulling down his lower clothing before raping him anally; and (003) assaulting a 12-year-old girl by dragging her into his bedroom, pushing her on to a couch, attempting to remove her clothing and kissing her on her face.

‘Materially different offences’

However, counsel for the appellant Frances Connor submitted that the evidence led in support of each of charges (001) and (003) disclosed that the character of the offences was “materially different”.

It was pointed out that on charge (001) the complainer was a male child who was significantly younger than then 14-year-old appellant and that the conduct involved anal rape of the complainer, which took place in private and on a number of occasions over a period of nine months.

By contrast, the complainer in charge (003) was a female child approximately one year younger than the appellant, whose account was of being present with others in the living room of the appellant’s home when she was dragged by him to his bedroom where she was forced down and he attempted to kiss her.

The difference in gravity between the conduct described by each complainer and the dissimilarities in the circumstances of the offending behaviour were said to be so significant that the crimes were “not capable of being viewed as part of a single course of criminal conduct”.

It was accordingly not possible for the charges to be corroborated through the application of the doctrine of mutual corroboration, as set out in Moorov v HM Advocate 1930 JC 68.

There were two further grounds of appeal which criticised aspects of the directions which the trial judge gave in relation to how the jury might be able to find corroboration of the various charges before them.

‘Unity of intent’

On behalf of the Crown, advocate depute Michael Meehan highlighted a number of points of similarity between the offences in arguing that the evidence as led did provide evidence of an “underlying unity of intent” and the evidence disclosed incidents of criminal conduct driven by that underlying unity.

Refusing the appeal, the judges observed that in any given case, in considering whether the evidence led is capable of affording corroboration by the application of mutual corroboration, “it does not of course matter that the crimes are not of the same nomen juris”.

Delivering the opinion of the court, Lord Turnbull said: “There is no rule of law whereby what might be perceived as less serious sexual criminal conduct cannot provide corroboration of what is libelled as a more serious sexual crime…In the present case it was accepted that the two charges were closely linked in time and in place. In our opinion, they were also closely linked in both character and circumstances.

“Each act was perpetrated against a younger friend of the appellant who was in his home. Each complainer was grabbed by the arms and forced into the appellant’s bedroom…The jury could therefore have concluded that in relation to each complainer the appellant engaged in sexual activity, or attempted to do so, having forced them into his bedroom.

“In the case of the female complainer it was her conduct in fighting him off that prevented the appellant from persisting in a sexual assault. The outcomes in relation to each complainer were accordingly somewhat different but, as the advocate depute submitted, this was due to the different conduct of the respective complainers, not because of a difference in the way in which the appellant had behaved.

“In our opinion, the jury would have been entitled to conclude that but for the female complainer’s ability to resist the appellant the event which she described would have gone further. In the same vein they would have been entitled to conclude that the appellant’s ability to conduct himself as he did towards the younger male child was because of his inability to protect to himself.”

The appeal judges were also satisfied that the directions which the trial judge gave were “entirely adequate” in the circumstances of this case.

Lord Turnbull added: “The jury sought clarification on the application of the doctrine and he gave them directions concerning that matter which were accurate.”