D.M. v. His Majesty’s Advocate [2023] HCJAC 44

Note of appeal against conviction:- The appellant was convicted after trial of 14 charges of assault and a contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 relating to a single complainer. The Scottish Criminal Cases Review Commission referred the case to the court on the basis that the sheriff’s directions to the jury lacked sufficient comprehensibility in relation to various charges which required the application of the doctrine of mutual corroboration for a sufficiency in relation to charges 1-6, 8, 9, 14 and 19 applying what was said by the court in HMA v Ricky Taylor 2019 JC 71 in cases involving a single complainer where other charges involving that complainer are corroborated by other evidence. At the close of the Crown case a ‘no case to answer’ submission was made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 in which it was submitted that the doctrine of mutual corroboration should not apply due to dissimilarities in time, character, place and circumstance among the charges. During the course of submissions the trial sheriff made reference to the principle identified in Howden v HMA 1994 SCCR 19 and its possible application to the case. The submission was repelled and in due course the sheriff charged the jury and gave directions that corroboration could be found in the application of the Howden principle. The sheriff did not give the jury any directions in relation to the doctrine of mutual corroboration. The jury subsequently asked a question seeking clarification on how evidence relating to certain charges could corroborate evidence on other charges and the sheriff repeated the Howden direction. Following an overnight adjournment the sheriff gave additional directions based on Moorov and Taylor, however, he did not withdraw the Howden direction but directed the jury that he had been in error in saying that the application of that doctrine could result in conviction as it could only apply in relation to the issue of identification. The Crown conceded that Howden had no application in the case. It was submitted on behalf of the appellant that the repeated incorrect directions by the sheriff to the jury on Howden and the absence of any directions, initially, by the sheriff on the doctrine of mutual corroboration amounted to material misdirections which had resulted in a miscarriage of justice. It was submitted on behalf of the Crown that the jury were ultimately provided with adequate and appropriate directions in relation to the application of the doctrine of mutual corroboration. It was submitted that the references to Howden were unlikely to have affected the jury’s deliberations. Further, under reference to McAvoy v HMA 1983 SLT 16, a misdirection does not always or automatically result in a miscarriage of justice and the appropriate test for the court to apply, following McInnes v HMA [2010] UKSC 28, was whether, taking all the circumstances of the trial into account, there was a real possibility that, but for the violation the jury would have arrived at a different verdict, and, in the present case it was submitted there was no such possibility. Here the court refused the appeal. The court stated that whilst the Howden direction should not have been given subsequently the sheriff made it clear that Howden did not provide a basis upon which a verdict of guilt could be reached. The court noted that the sheriff had ultimately given the jury the appropriate directions in relation to the application of the doctrine of mutual corroboration and had made it clear to the jury that that was the only route to a conviction. The court concluded that the prospect of a different verdict had the erroneous direction not been given was “purely fanciful”.