Rapist who claimed rubbing woman’s leg could not corroborate rape of another woman loses appeal against conviction

The Appeal Court of the High Court of Justiciary ruled that the circumstances of the case entitled the jury to find that that the two offences were parts of a “single course of conduct persistently pursued by the appellant”.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young, heard that the appellant Graham Watson was sentenced to five years’ imprisonment after being found guilty of the two charges following a trial at the High Court in Edinburgh on August 2018.

Charge (1) was to the effect that on 15 January 2017 at an address in Dundee he sexually assaulted a 19-year-old woman while she was asleep and under the influence of alcohol before raping her after she had awoken, while charge (3) was that, a few hours earlier in a nightclub in the city, he sexually assaulted a 25-year-old woman by repeatedly touching her leg.

Birthday celebration

The court was told that both offences occurred against a background of a family gathering for a birthday celebration attended by the appellant and the two complainers, among others.

The complainer in charge 3 was sitting in a booth in the Rewind nightclub in Dundee late on Saturday 14, or early in the morning of Sunday 15 January 2017 when the appellant, who was sitting beside her, said to her “me and you later on”. 

He rubbed the top of her thigh and she laughed this off and walked away from the table, but when she returned he continued to rub her leg.

After the nightclub the complainer in charge 1 ended up at the locus in the early hours of 15 January, having had a lot to drink.

She was helped into a bed by a family member, who helped her change from the clothes she had on at the nightclub into her pyjama bottoms, and who also put a bucket next to the bed in case she was sick.

The witness had regarded the complainer as “pretty drunk but not legless” when she had arrived and had drunk more thereafter, to the point of feeling sick. 

After the complainer had fallen asleep she was wakened by the appellant who was beside her in the bed and sexually assaulting her.

The complainer tried to move his hand away and said “no”, but despite her efforts to push him away, he raped her.

During the course of giving evidence the appellant accepted that, in the nightclub, he had squeezed the complainer’s legs when she had got up to pass him and had said “nice legs”, which he described as “a bit of banter”, but he claimed he had not rubbed her leg or made the remark which she attributed to him. 

He also admitted having intercourse with the second complainer but maintained that this had been with her consent, she having invited him into the bed and removed her own clothing.

‘Mutual corroboration’

The trial judge considered that the jury would be entitled to find corroboration of the rape in charge 1 by the application of mutual corroboration with charge 3.

Both charges had involved sexual attacks on much younger women in the course, or aftermath, of a family celebration. 

The judge directed the jury accordingly to the effect that, if the jury were satisfied that the crimes charged were so linked in terms of character, circumstances, place and time “so as to bind them together as parts of a single course of criminal conduct systematically pursued by the accused”, then the evidence of one witness about the commission of one crime could be corroborated by the evidence of another witness about the commission of another crime.

However, Watson appealed against his conviction, arguing that the circumstances of the behaviour and character of the offences could not provide corroboration.

It was accepted that, in terms of time, the offences were not so distant that mutual corroboration could not apply, while the same considerations applied in relation to place. 

But it was submitted that the conduct in charge 3 could not be considered sufficient for the jury to consider that the appellant was pursuing a single course of conduct as the similarities between the offences were not such as to permit mutual corroboration to apply. 

Charge 1 was one of rape, while charge 3 involved an unwelcome pass and a sexual assault, but it was not with intent to rape. 

It may be that the conduct showed a propensity for sexual assault, but it was not sufficient to provide corroboration of rape. 

It was not enough to catalogue some similarities and to dismiss others for mutual corroboration to apply, and in view of the dissimilarities, it was argued that on no view could the episodes in each charge be regarded as component parts of a single course of conduct persistently pursued. 

‘Single course of conduct’

Refusing the appeal, the judges ruled that the jury were entitled to find Watson guilty.

Delivering the opinion of the court, the Lord Justice General said: “In a case in which rape, including the use of force, is libelled, it will be seldom that mutual corroboration is afforded by proof of an assault by rubbing another woman’s leg on a different occasion at a different time. 

“It may be regarded as unlikely that the two incidents could be regarded as a single course of conduct. It is, however, a question of fact and degree. 

“In this case, it is significant that the two incidents occurred within hours of each other. They were both connected to the same celebration which was attended by both complainers and the appellant. They both involved the appellant, who was 46, assaulting young women. 

“Of particular significance was the appellant’s comment to the complainer in charge 3 that he wanted to have sex with her ‘later on’. This coincided with him having sex with the other, by that time intoxicated, complainer later that night. 

“These particular features of the case entitled the jury to hold that the incidents were component parts of a single course of conduct persistently pursued by the appellant, thus to apply mutual corroboration and to find both charges proved.”

In any event, the judges observed that both charges were capable of being established without the need for mutual corroboration. 

Lord Carloway added: “There was nothing unreasonable in the jury’s verdict. Once they had accepted each complainer’s testimony, in circumstances in which a sufficiency was established, and rejected that of the appellant, they were entitled to find the appellant guilty. 

“Any direction by the trial judge, to the effect that the charges could only be proved by the application of mutual corroboration, was in favour of the appellant. The appeal is accordingly refused.”