DANIEL, APPEAL AGAINST CONVICTION BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> DANIEL, APPEAL AGAINST CONVICTION BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_52 (23 August 2018) URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_52.html Cite as: 2019 SCCR 55, [2018] ScotHC HCJAC_52, 2018 GWD 30-379, [2018] HCJAC 52

[1] On 24 November 2017, at the High Court in Edinburgh, the appellant was found

guilty of a number of charges involving sexual and physical abuse. The appeal centres upon

“(1) on an occasion between 1 October ... and 30 November 2007 ... at ... Aberdeen,

you ... did assault [AB], born ... 1992, and did lie on top of her, remove her lower

clothing, restrain her and rape her by penetrating her vagina with your penis;

(5) on an occasion between 1 October 2009 and 30 April 2010 ... at ... Aberdeen

you ... did assault [CD], then your partner ... and over a period of three days did lock

her inside the said property, refuse to allow her to leave and thus detain her against

her will, shout, place her in a state of fear and alarm and rape her by penetrating her

vagina with your penis, and when she attempted to leave the said property you did

seize hold of her neck, present a knife at her and hold it against her neck to her

(11) on various occasions between 1 May 2014 and 14 July 2015 ... at ... Aberdeen,

and elsewhere you ... did assault [EF], then your partner ... and did spit on her face,

seize hold of her hair and pull her by the hair, push and pull her downstairs, restrain

her, compress her neck with your hands, kick her on the head and body and punch

(14) on various occasions between 1 May 2014 and 14 July 2015 ... at ... Aberdeen

you ... did assault [EF], then your partner, seize hold of her head, push her head

towards your penis and repeatedly rape her by repeatedly penetrating her mouth

with your penis and by repeatedly penetrating her vagina with your penis:

CONTRARY to section 1 of the Sexual Offences (Scotland) Act 2009; and

(20) on an occasion between 1 ... and 18 February 2015 at ... Aberdeen you ... did

assault [EF], then your partner ... and did repeatedly kick her on the head and cause

Apart from these central charges, the appellant was convicted of charges 2 (malicious

mischief), 3 (breach of the peace), 10 (assault), 12 (malicious mischief), 16 (a contravention of

section 38(1) of the Criminal Justice and Licensing (Scotland) 2010 Act) and 18 (abduction of

EF). The appellant received extended sentences in respect of charges 1, 5 and 14, which

were to run concurrently. The longest of these was an 11 year term with an 8 year custodial

period. Concurrent to that were sentences of 6 months and 1 year in respect of the assault

charges 11 and 20. The trial judge imposed a total of 7 months on charges 2, 3, 10, 12, 16 and

18 to run consecutively to the earlier periods. The cumulative sentence was therefore an

[2] The complainer in charge 1, namely AB, was aged 15 at the material time and the

appellant was 25. They worked together at the food court in the Bon Accord Shopping

Centre. On an occasion in October or November 2007, they had met by arrangement at the

amusement arcade on the Esplanade. They had then gone to the appellant’s car, where, as

the trial judge put it, the appellant began to force himself upon her. Despite her

protestations, he continued in his attempts to have intercourse with her. She decided that

resistance was futile and “let him have his way”. After the intercourse, he had driven her

home. This incident was not reported at the time and the complainer was only contacted by

[3] The complainer in charge 5, namely CD, was a second year student at Aberdeen

University, who met the appellant at a nightclub in September or October 2007. They began

a relationship and moved in together. The incident, which occurred some time between

October 2009 and April 2010, signalled the end of their relationship. The complainer had

visited the appellant at his flat to tell him that she wished to end it. The appellant would not

let her leave the flat, although they did go out together to get food. The appellant was

extremely upset. He tried to persuade the complainer to remain with him. He had banged

his head repeatedly off a wall during this episode. As the complainer was on a bed, he had

put a pillow over her face. She had given no indication of any willingness to have

intercourse, but he had proceeded to penetrate her. At the end of the incident, when the

complainer was trying to leave the flat, there was a struggle during which he had presented

a knife at her, which had nicked her throat. She had then managed to escape.

[4] The third complainer, namely EF, had her own house and family in Aberdeen. She

had met the appellant at the end of 2014 and had begun a relationship with him. This

transpired to be a violent affair, with repeated episodes of rape found established in terms of

[5] In relation to the assault charges against which the appeal is directed, these both

involved EF. Charge 11 libelled various occasions on which the appellant had spat on her,

seized her by the hair, punched her and committed other acts of physical aggression.

Charge 20 was a single episode of repeatedly kicking the complainer to her head, to her

[6] The trial judge gave the jury the standard general directions on the need for

corroboration; that is, as he put it, evidence from at least two separate credible and reliable

sources which pointed to the guilt of the accused. He twice referred to the need for

corroboration for both the commission of the offence and the identity of the perpetrator. He

directed the jury on mutual corroboration; stating that all of the rape charges required to be

corroborated in that way. Since the alleged rapes occurred, when only the appellant and one

of the complainers had been present, and there was no other evidence available,

corroboration for each had to come from evidence about the other alleged rapes.

[7] The trial judge said the Crown were entitled to ask the jury to consider similar

incidents, for which it is said that the accused person was responsible. If the incidents were:

“sufficiently alike as to reveal a pattern of behaviour that is distinctively that of the

accused, then the jury is entitled to treat the evidence of one complainer as

... it is a matter for you whether you are satisfied that the cases are sufficiently

alike. For the rule ... of mutual corroboration to apply, you must be satisfied about

the following matters: first, that the crimes are alike in character; second, that the

circumstances of their commission are alike; thirdly, that the place or places of the

commission are alike; and fourthly, that they are close enough together in time to

infer that they belong to a course of conduct, or a pattern of behaviour.”

[8] On character, all the relevant incidents had involved rape. In relation to the

circumstances, the trial judge mentioned that the Crown had founded on the incidents all

having occurred within a relationship, albeit that that with AB was at its “outset”, whereas

the others were longer term. As to place, they were all in Aberdeen. As to time, the dates

were set out in the indictment. The judge referred to the Crown having argued that the

dates were sufficiently close together that it was possible to infer a “course of conduct

pursued against a number of women with whom the accused had a relationship”.

[9] The trial judge directed the jury that they also had to consider the differences

involved in the charges. He gave examples of both similarities and dissimilarities. He

directed the jury that they should decide whether the differences were important or whether

the accused was acting “in pursuit of a course of sexual misbehaviour that is bound together

by common threads of similarity”. If the jury considered that each of the three complainers’

accounts was acceptable, they had to ask whether they were corroborated by the account of

at least one of the others. If not, an acquittal had to follow. He gave a specific direction in

respect of the time gap between the first and third complainers in the event that the

testimony of the second complainer were rejected. In respect of each complainer, he

repeated the need for corroboration from another complainer in the form of evidence of

another rape which was “sufficiently alike in character, circumstance, place and time”. He

referred to the need for the incidents to be part of a course of sexual misconduct “from

which you can infer has been pursued by the same man”. He repeated that there could only

“by reason of the character, circumstance, place of commission and dates of each

charge, the crimes are so closely linked that you can infer that the same accused was

pursuing a course of conduct involving the various sexual assaults”.

[10] The doctrine, the trial judge said, was also applicable to the non-sexual assaults.

Again, the jury had to examine the circumstances and decide whether they were:

“sufficiently bound together by character, circumstance, place and time as to

demonstrate an underlying course of conduct that inferred that the conduct was

He directed the jury that, in relation to the assault charges, the only source of evidence

capable of corroborating charges 11 and 20 was the assault element of charge 5.

[11] The trial judge dealt with the appellant’s testimony and directed the jury that, if they

[12] In his report, the trial judge responded to the criticism of his charge as follows:

“... more often than not the jury is seeking to determine whether the individual

strands of evidence have sufficient commonality to deserve the description of a

‘course of action’. In this respect determining whether these strands of evidence are

composed of similar facts is part of the task of determining whether the course has

been ‘systematically pursued’. I take it that this phrase is not intended to indicate

that the crimes alleged were conducted according to a rigid system or method but

that if similar facts or features are visible which imply the involvement of a single

actor then the jury are entitled to find that there is mutual corroboration. This

requirement is expressed in the need for a unity of character, circumstance, place and

time. Where the features evident are merely typical incidents of the category of

crime in question the jury could not then be satisfied that those features provide

corroboration. ... my understanding is that if the evidence in connection with each

separate offence showed that ‘the accused had a general disposition to commit the

kind of offence under consideration’, then that evidence would be available as a

source of mutual corroboration. The rule cannot operate when the evidence is of a

generic nature. If the evidence is generic then the jury could not be satisfied that it

was the accused who had committed the crimes in question. If therefore the

evidence simply revealed that whoever committed it had a general disposition to

commit a crime of that nature then one could not regard that evidence as

corroborating the complainer’s evidence that the accused committed the crime. This

is because there was nothing in the way the crime was committed that would enable

the jury to be satisfied that it was the accused who committed the crime. The point

of the rule is to find corroboration of evidence that a crime was committed and that it

[13] The first ground of appeal was that there has been a miscarriage of justice in respect

of charges 1, 5, 14 and separately charges 11 and 20 because of misdirections on mutual

corroboration. The only available means of corroboration in respect of each of the rape

charges was by application of the Moorov doctrine. The directions were such as to have

confused the jury since, read as a whole, the jury would have been left with the impression

that they should be looking for similarities in order to infer that the crimes were committed

by the same man, rather than that they occurred at all. There had been no dispute about

[14] The trial judge failed to use the expression “single course of conduct systematically

pursued”, which was designed to convey that what was required was an underlying unity

of purpose, rather than a general disposition to commit offences of a similar kind. He had

focused on the doctrine as proving identification, rather than commission of the offence. He

had not followed the directions in the Jury Manual (page 15.3/123). The terms of the judge’s

report had reinforced the confusion under which he was labouring. It was accepted that it

was not necessary in every case to give a direction about the fact that a general disposition

was not enough, but this was desirable in order to assist the jury’s understanding (BM v HM

Advocate [2017] HCJAC 55 at para [35]). In terms of his report, the judge seemed to think

that a general disposition was sufficient for mutual corroboration. His remarks betrayed a

misunderstanding to the effect that the doctrine was about corroboration the identity of the

perpetrator rather than the commission of the crimes. He had confused mutual

corroboration with the rule in Howden v HM Advocate 1994 SCCR 19.

[15] The second ground of appeal was that there was insufficient evidence to corroborate

charges 11 and 20, using the assault element in charge 5. This was so, notwithstanding the

absence of a submission to that effect at the close of the Crown case; a matter which was

adequately explained (Farmer v Guild 1991 SCCR 174). The use of the knife in charge 5 had

occurred in the context of the complainer trying to leave the flat, where she had been raped.

It was the only allegation of assault in respect of the complainer CD, and had occurred at the

very end of their relationship. It was a one-off incident. By contrast, the evidence on

charges 11 and 20 was of a violent relationship between the appellant and the complainer

EF, in which no weapons had been involved. There was also a gap of about five years

[16] The charge had to be seen in the context of the trial (Sim v HM Advocate 2016 JC 174

at para 32). The judge was not required to deliver an academic thesis, but to give concise

definitions of the principle and general guidance on how it should be applied (JH v HM

Advocate [2013] HCJAC 28 at para [10]). The Jury Manual was no more than a first port of

call, providing a checklist of points to bear in mind. The obligation on the judge was to

provide a route to verdict which the jury could follow. The submission that the import of

the charge suggested that the application of the doctrine related to identification, rather than

the commission of the crime, took the terms of the charge out of context. The judge had

directed the jury that they had to be satisfied that the crimes were so alike and linked closely

enough in time to infer a course of conduct. He reminded the jury that the requirement was

[17] There was a sufficiency of evidence to corroborate charges 11 and 20 with that in

charge 5. The evidence of the complainers should not be compartmentalised. The assaults

on both CD and EF had taken place in a situation in which the appellant had perceived

himself as losing control of the situation. In respect of CD, he had become manipulative,

aggressive and violent when she was socialising without him. The events in charge 5

occurred when she tried to end the relationship. He had become violent to EF in similar

circumstances when she asked him to leave her flat. Both complainers gave evidence that

they were detained against their will. Although the nature of the conduct was not identical,

in the context of the evidence as a whole, the inference could be drawn of an underlying

[18] In JH v HM Advocate [2013] HCJAC 28 it was made clear (Lord Clarke, delivering the

“It is well established that in giving directions on the doctrine of mutual

corroboration the trial judge is not required to deliver on academic thesis: all that is

required is ... a concise definition of the principle and some general guidance as to

how it might be applied by the jury to the evidence in the case ... The charge has to

be looked at as a whole, the critical questions being will the jury understand, from

these directions, (i) that they cannot convict on the evidence only of the individual

witness to each charge? and (ii) that they can only do so if they also accept the

evidence of the other witness, and are satisfied as to the connection between the

Seen in that context, the directions on corroboration in this case were adequate. The trial

judge made it clear that corroboration was required in respect of both the commission of the

offence and the identity of the perpetrator. He equally emphasised that each rape required

the mutual corroboration of one or both of the other rapes and that the jury would have to

be especially careful if the middle complainer, in terms of chronology, were to be rejected.

He explained that what was required was a similarity in character, circumstances and place;

that the individual offences belonged to a course of conduct carried out by the accused.

Although the trial judge did put some emphasis on the conduct being that of the accused,

the jury would have understood from the totality of the directions given that both the

identity of the perpetrator and the offences themselves required the application of mutual

corroboration. Ultimately, it is clear the jury accepted the testimony of the three

complainers, rejected that of the appellant and regarded the circumstances as sufficiently

[19] It is important not to conduct too strict a textual analysis of the judge’s charge or to

focus upon isolated passages rather than the charge as a whole, in the context of the

evidence given and the speeches delivered. Nevertheless, the court accepts the force of the

submission made by the appellant that the judge’s report gives some concern in relation to

his understanding of the concept of mutual corroboration. That is not, however, the focus of

the appeal. MR v HM Advocate 2013 JC 212 (LJC (Carloway), delivering the Opinion of the

“What the court is looking for are the conventional similarities in time, place and

circumstances in the behaviour proved in terms of the libel ... such as to demonstrate

that the individual incidents are component parts of one course of criminal conduct

[20] In relation to a judge’s directions, although a judge may feel compelled to depart

from the guidance given in the Jury Manual, it remains important to have regard to the

terms of the Jury Manual and to follow the language which is used in the Manual, unless

circumstances dictate otherwise. As was said in White v HM Advocate 2012 SCCR 807 (LJC

“the contents of the Jury Manual, which have been devised by the judiciary for the

judiciary, are intended to be an encapsulation of sound law and good practice”.

Care requires to be taken before a judge departs from the standard phraseology developed

over time and representing established wisdom. Consistency of language is important. In

directing a jury on the concept of mutual corroboration, it is very important to provide a

clear expression of the principle at the outset and, when dealing with the details of the

concept, or indeed the evidence, to use the same language when describing the same

concepts. In mutual corroboration cases, the following is the standard direction (Jury

“The rule is this: if you are satisfied that the crimes are so closely linked by: (1) their

character; (2) the circumstances of their commission; (3) the place of commission;

and(4) the time of commission, as to bind them together or parts of a single course of

conduct systematically pursued by the accused, then the evidence of one witness

about the commission of one crime is sufficiently corroborated by the evidence of

one witness about the commission of each of the other crimes. In looking at the

charges, it is the underlying similarity of the conduct which is described by the

witnesses which you have to consider in deciding whether the doctrine applies.

For it to apply, you have to accept each of the witnesses who speak to the

individual charges. If you don’t, there can be no corroboration. So if you believe the

complainer in any particular charge then you would have to find corroboration from

a credible witness who speaks to any of the other charges. If you do believe that

witness you then have to decide if by reason of the character, circumstance, place of

commission and time of each charge, the crimes are so closely linked that you can

infer that the accused was pursuing a single course of crime. It’s not enough if all

that’s shown is that he had a general disposition to commit this kind of offence. You

If a judge gives such a direction, it will be difficult to criticise him. If, on the other hand, he

uses different phraseology such as, in this case, “pattern of behaviour”, “common threads of

similarity” or fails to mention part of the standard recommended direction, such as “course

of conduct systematically pursued by the accused”, he will risk opening his words up to

criticism, even if a challenge to them may not ultimately succeed.

[21] In relation to the assaults, the court is satisfied, looking at the similarities of the use

of violence in the domestic context, that there was sufficient evidence upon which the jury

could find mutual corroboration between the charges involving violence to the two

[22] In all these circumstances, the appeal against conviction is refused.

Scottish High Court of Justiciary Decisons