APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Bonomy	[2012] HCJAC 66 Appeal No: XC543/10 OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST CONVICTION by R.M. Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McConnachie QC et Mason; JP Mowberry

Respondent: Prentice, Solicitor Advocate, QC, AD; Crown Agent

18 May 2012

Background

[1] The appellant was convicted at the High Court in Glasgow on 14 July 2010 of two charges in these terms:

"(001) on various occasions between 1 August 1967 and 29 January 1975, both dates inclusive, at a given address, garages near to a named Primary School, a house occupied by you at another address, all Airdrie, you ROBERT MURPHY did assault X, your niece, born 30 January 1957, c/o Strathclyde Police, Motherwell, and did place your hand inside her skirt and pants, handle her private parts, seize hold of her, pull down her clothing, bend her over a sink, force her to the floor, place your hand over her mouth, force her to the ground and did rape her;

(003) on an occasion between 23 December 1969 and 22 December 1971, both dates inclusive, at a given address, Airdrie you ROBERT MURPHY did assault Y, your niece, born 23 December 1961, c/o Strathclyde Police, Motherwell, then aged between 8 and 9 years, and did seize her from behind, place your hand over her mouth, force her into the bathroom, remove her underwear, bend her over a sink and did rape her".

Charge 2 was withdrawn by the Advocate depute at the close of the Crown case. The jury found charges 4 and 5 not proven. All the charges involved sexual abuse. The complainers in charges 1, 3, 4 and 5 were four sisters. The complainer in charge 3 was also the complainer in charge 2.

[2] Leave to appeal against conviction was granted in respect of four grounds of appeal. One (ground 6) is based on the decision of the Supreme Court in Cadder v HM Advocate [2010] UKSC 43, 2010 SCCR 951, 2010 SLT 1125. The other three (grounds 5, 7 and 8) are closely related to one another and concern the trial judge's directions on the doctrine of mutual corroboration as it applied between charges 1 and 3 and the resultant absence of a clear basis for understanding the reasons for the jury's verdict by reference to the charge and the verdict. We shall deal with the Cadder ground first and then address the other grounds together.

The Essential Facts

[3] Charge 3 involved a single event which occurred when the complainer was aged 8 or 9. As she was entering the bathroom at her aunt's house, the appellant put his hand over her mouth and pushed her into the bathroom. He put her against the sink, pulled her underwear down, told her to keep her mouth shut, and then had intercourse with her whilst she was bent over the sink.

[4] Charge 1 involved three separate events at the three loci specified. The earliest involved the appellant putting his hands down the complainer's pants and up her jumper as he walked her to school when she was aged 10 or 11. The other two both involved forcible vaginal penetration, one when she was aged 12 or 13 and the other when she was 17. The first occurred at her home. The appellant came in behind her, put her up against the kitchen sink, got hold of her at the back of the neck, pulled her trousers and pants down (past her knees) and put her on the floor. He then put his hand over her mouth and had intercourse with her. The later incident when she was 17 occurred when she was babysitting at the appellant's house. When the appellant and his wife came home, the appellant's wife went to bed. The appellant then put the complainer onto the floor in the kitchen of the house, put his hand over her mouth and had intercourse with her.

The Cadder Ground

[5] The trial took place before the judgment in Cadder v HM Advocate was issued. Evidence was led of a police interview of the appellant which took place on 23 November 2008. The appellant did not have access to legal representation before or during the interview. Although he had attended voluntarily at the request of the police, he was plainly a suspect who would have been detained had he not agreed to attend. Against that background the Crown accepted that evidence of the interview should not have been led. Since evidence of the interview was not essential to provide a sufficiency of corroborated evidence and a case to answer, the issue in the appeal is whether, absent evidence of the interview, there was a real possibility that the jury would have arrived at a different verdict.

[6] In his report the trial judge explained that in the interview the appellant entirely denied the allegations which eventually formed the terms of the charges in the indictment. He described the interview as "entirely exculpatory", and added that there was nothing in it by way of an admission or any other piece of evidence which could be said to be directly incriminatory of the appellant on any of the charges. The appellant gave evidence in which he denied all the charges, consistent with his position in the interview. The Advocate depute made no mention of the interview in his closing address to the jury. The trial judge made one brief reference to it in his charge.

[7] Understandably Mr McConnachie, counsel for the appellant, did not suggest that the evidence of the interview had any directly incriminating impact on the case against the appellant. He relied upon the particular use that the Advocate depute had made of the interview, which Mr McConnachie contended was clearly prejudicial to the appellant's interests. It had been used to undermine his credibility with a view to persuading the jury to reject his evidence. The cross‑examination of the appellant had not been particularly lengthy. It extended over 27 pages of transcript, of which about one third were devoted to the interview. He submitted that in historical sex abuse cases the credibility and reliability of the main participants tend to be the most important issues, since there is unlikely to be independent evidence. This case was no exception. The Advocate depute initially cross‑examined the appellant in a way which was designed to set him up only to knock him down by reference to passages in the interview inconsistent with his initial answers in cross‑examination. That was done in this case by reference to the appellant's account of a phone call made by the complainer in charge 1 to the appellant's home in 1998, what he heard in the course of that and whether that was the point in time at which bad feeling in the family had first emerged. The jury may well have considered the inconsistency between what the appellant said in court and what he had said at interview to have been of significance in arriving at their verdict.

[8] In response the Advocate depute identified the reason for reference being made to the interview on that point as being the fact that the appellant's initial answer in his evidence-in-chief to his own counsel's question about the phone call had been meaningless, and had apparently surprised his counsel who pressed the appellant to explain the matter. Initially the appellant said that reference in the call was confined to an allegation that he "did this" or "did that". Having being pressed by his counsel on the matter, he acknowledged that the allegation was that he "touched this, touched that". The exploration of the matter by the Advocate depute had not, in his submission, added significantly to the inconsistency and state of confusion of the appellant's evidence on the point in his examination‑in‑chief. It indicated at most a change of position in relation to his knowledge of the complaint against him. It did not represent a change of position in respect of his culpability. In any event, as could be seen from the absence of reference to this in the Advocate depute's speech and very brief reference to the interview in the judge's charge, the interview played a minor part in the trial. There was, therefore, no realistic possibility of the jury reaching a different verdict had the interview not featured at all in the trial.

[9] Having re-read the transcript of the appellant's evidence and considered particularly the reference in cross‑examination to the interview, we agree with the Advocate depute that any inconsistency in the appellant's account of the telephone call had already emerged in examination‑in‑chief and was not developed in cross‑examination in a way that identified some particular inconsistency between the interview and his evidence that was somehow different from the vague apparent inconsistency that characterised the initial examination‑in‑chief. Even reading the cross‑examination without reference to the examination‑in‑chief does not reveal a clear inconsistency between the appellant's evidence in court and the terms of his interview. It is also plain that in the overall context of this trial any apparent inconsistency between the terms of the interview and the appellant's evidence was a minor matter. We do not consider that the Crown case against the appellant would have been significantly weakened had the Advocate depute not been able to refer to the transcript of the interview. We therefore do not consider that, absent the interview, there was a real possibility of a different verdict, and reject ground of appeal 6.

Misdirections and Reasoned Judgment

[10] Grounds 5, 7 and 8 arise out of the directions given by the trial judge about the application of the doctrine of mutual corroboration as explained in Moorov v H M Advocate 1930 J C 68, the jury's request for further directions, and the resultant verdict. The only source of corroboration for charges 1 and 3 lay in the application of that doctrine.

[11] Mr McConnachie maintained that the jury had been misdirected in two respects. Because there were three separate incidents in charge 1 and the requirements of absence of consent and the appellant's knowledge thereof were elements of the second and third but not the first, the trial judge ought to have directed the jury specifically about the evidence in relation to charge 3 which could provide corroboration of the evidence of the complainer on charge 1 on these points. That was particularly so since the trial judge had directed the jury, correctly, that proof of neither the complainer's absence of consent nor the appellant's knowledge thereof was required for conviction on charge 3 since the complainer was under 12 years of age at the time. The trial judge should have been alerted to the particular difficulty when, during their deliberations, the jury sought further directions. They advised the trial judge that they recognised the three aspects within charge 1, and then asked whether they could split the charge or whether they had to reach a verdict on the charge as a whole. It was a misdirection to tell the jury to consider charge 1 as a whole.

[12] In further support of these grounds Mr McConnachie submitted that the trial judge had failed to explain to the jury how the evidence relating to charge 3 might provide sufficient corroboration of elements necessary for conviction on charge 1, and that, to do that properly, it was really necessary to break charge 1 down effectively into three separate charges or chapters. He sought to distinguish Stephen v HM Advocate [2006] HCJAC 78, 2006 SCCR 667 as applicable to a situation where, although a number of incidents were referred to in a single charge, the legal requirements for proof were identical among them and between them and those of a different charge in which corroboration might be found.

[13] Mr McConnachie also submitted that, because of the misdirection by omission, it was impossible to tell how the jury had reached the conclusion that the most serious two allegations in charge 1 were corroborated by charge 3. If the jury had looked at the manner in which the offence in charge 3 was committed and considered that they could use the evidence of forcible rape to corroborate lack of consent and knowledge thereof in relation to the two more serious elements of charge 1, it was impossible to tell on what basis they had concluded that they could do so since the trial judge had said nothing about using the evidence relating to charge 3 to provide corroboration for elements of charge 1. While the circumstances of the present case were quite different from those of Liehne v HM Advocate [2011] HCJAC 51, 2011 SCCR 419, the principle of that case applied here. The trial judge's charge did not provide a framework which allowed the jury to proceed to a verdict by a reasoned process which provided an explanation for the verdict reached. In Mr McConnachie's submission the misdirections were material and had resulted in a miscarriage of justice. In addition, in the absence of a reasoned basis on which it could be said the jury had reached their verdict, the appellant's right to a fair trial had been infringed.

[14] In response the Advocate depute acknowledged the need for corroboration of the absence of consent and the appellant's knowledge thereof in relation to charge 1, but stressed that that could clearly be found in the circumstances of the offence on charge 3. Under reference to McKenna v HM Advocate [2008] HCJAC 33, 2008 SCCR 702, he submitted that it was the nature of the offence that mattered, and that as long as there was sufficient evidence it was for the jury to decide whether that evidence provided the necessary corroboration. There was no requirement upon a trial judge to identify where the corroboration for particular elements of a charge was to come from. His task was to give adequate directions as to the requirements for the offence; it was for the jury to decide what evidence to accept and whether that satisfied the requirements. It was plain from the request made by the jury for further directions that they understood that there were three separate elements in charge 1, and equally plain from the transcript that, following the trial judge's further directions, they were satisfied with his answer. A consideration of the evidence relating to charge 3 showed that the circumstances of that assault and rape provided a basis for corroborating all the requirements for each of the allegations in charge 1. The trial judge's directions on the doctrine of mutual corroboration provided clear guidance to the jury as to the need for such a link between the offences, by reason of their character, the circumstances of their commission, and the time when they occurred, as to bind them together as part of a course of criminal conduct systematically pursued by the accused person. The basis on which the resultant verdict had been reached was plain.

Discussion and Decision

[15] While there is a superficial attraction in Mr McConnachie's submissions based on the different requirements for rape where the victim is 12 or older from those where the victim is under 12, close consideration of the actual circumstances in which the attack in charge 3 was carried out and comparison of these with the events relating to charge 1 show that there is no foundation for these submissions in this particular case. As the trial judge pointed out at page 5 of his original report on the case, there was before the jury only one basis on which they could have accepted that the complainer in charge 3 was assaulted and vaginally penetrated. That was her account in which she explained that, as she was entering the bathroom, the appellant put his hand over her mouth and pushed her into the bathroom, put her against the sink, pulled her underwear down, told her to keep her mouth shut and had intercourse with her. He penetrated her from behind while she was bent over the sink. The appellant's evidence was the only other evidence relating directly to the event. He denied that it had occurred; his position was that the complainer was lying. While the jury may not have accepted every last word of the evidence of the complainer, it is plain that the only basis on which they could conceivably have convicted the appellant on charge 3 was that it involved a violent attack in which the complainer did not consent to intercourse and the appellant well knew it. The evidence of that event was capable of corroborating each of the two incidents involving assault and vaginal penetration in charge 1.

[16] The important thing for the trial judge in directing the jury was to ensure that they understood what was required before the doctrine of mutual corroboration could apply. As the Advocate depute submitted, the trial judge directed the jury that they had to be satisfied that the crimes were so closely linked by their character, circumstances of their commission and time as to bind them together as part of a course of criminal conduct systematically pursued by the accused. In that event the evidence of one witness about the commission of one crime could be sufficiently corroborated by the evidence of another witness about the commission of the other crime. The trial judge then identified the major similarities and followed that with a direction to the jury to be cautious in their application of the rule because it is not enough that the accused has a general disposition to commit a particular type of offence. The jury could have been left in no doubt that before they could convict they had to accept evidence establishing a sufficient link in time, character and circumstances between the two offences as to show that they were part of a course of criminal conduct systematically pursued by the appellant.

[17] The circumstances of the request for directions in the course of the jury's deliberations show that the jury appreciated that there were three separate events to be reviewed in relation to charge 1 and that they understood the clarification that they could make deletions to reflect any difference in their conclusion in relation to these events. Having regard to all the directions given to the jury and to the jury's confirmation that their request for further directions had been answered, the ultimate verdict demonstrates clearly that the jury convicted the appellant on the basis of their application of the doctrine of mutual corroboration and in particular that they accepted the accounts given by the complainers in charges 1 and 3 as to the similarities in the nature of the attacks perpetrated upon them. In our opinion there was no misdirection. The charge provided the necessary framework for the jury properly to address the issue of corroboration between the two charges. We accordingly reject grounds of appeal 5, 7 and 8.

[18] It follows that the appeal as a whole must be refused.

Postscript

[19] We consider it appropriate to add a word or two that may provide guidance to trial judges faced with similar circumstances. Although we have rejected the submission that in this case it was necessary to break down charge 1 into its different elements, we do not mean to suggest that to do so would inevitably be inappropriate. There may well be circumstances in which it is necessary to regard a charge as comprising distinct offences which should be addressed separately by the jury in returning their verdict with a view to ensuring that the verdict is comprehensible and the reasons therefore are clear. An example of such circumstances can be found in Cordiner v HM Advocate 1991 SCCR 652.