J.H. v. His Majesty’s Advocate [2024] HCJAC 10

Note of appeal against conviction:- The appellant was convicted following a trial at the high court of various charges of physical and sexual violence perpetrated against members of his family including charge 1 a charge of assault of ‘S’ on various occasions between 1999-2001 by striking him on the head, pushing him on the body and causing him to fall, seizing hold of him, restraining him, punching and kicking him on the body, head butting him, striking him on the hands with a remote control, extinguishing cigarettes on his body and holding his head under water all to his injury. The appellant appealed against his conviction in relation to charge 1 it being contended that the trial judge failed to provide the jury with an appropriate route to verdict, including the application of mutual or standalone corroboration. On behalf of the appellant it was submitted that the trial judge erred in failing to explain to the jury the two ways in which charge 1 could be corroborated, namely, within the confines of the charge itself under reference to H.M.A. v. Taylor 2019 J.C. 71, or by the application of mutual corroboration from the evidence of the other assault charges (charges 3, 5 and 6). It was submitted that charge 1 comprised of a series of separate assaults with distinct periods of time between them and corroboration was required for each incident. The jury were not told that for corroboration to apply the conduct had to be part of a single course persistently pursued by the appellant and that the application of the doctrine of mutual corroboration could be derived from the other physical assault charges, or, alternatively, for charge 1 to have been proved without reference to charges 3, 5 or 6, there had to be a direction on the operation of mutual corroboration within the confines of that charge. Furthermore, whilst it could be inferred from part of the directions that charge 1 could be proved by the application of mutual corroboration the judge directed the jury that the only charges which could be proved by the doctrine were charges 3, 5 and 6. On behalf of the Crown it was conceded that charge 1 was an omnibus charge libelling separate assaults each of which required to be corroborated, however, mutual corroboration could be used to prove such a charge provided a course of conduct systematically pursued was established and the doctrine could be applied either in the normal way between charges or, alternatively, by applying H.M.A. v. Taylor. The Crown agreed that the trial judge did not give directions to the jury on these available routes to a verdict of guilty and no reference had been made at all to the approach applied in Taylor. It was submitted, however, that the directions given on mutual corroboration in relation to the other physical assault charges were sufficient to provide a route to verdict particularly in light of the Advocate depute’s speech to the jury where the jury were invited to find corroboration of charge 1 from the evidence of the other assaults. The court considered that in relation to charge 1 the trial judge’s direction that “so long as a part of a charge is corroborated then the remainder of the charge can be proved by the evidence of a single witness” was a misdirection. The court considered that the jury ought to have been directed on the need for a course of conduct being established so that either evidence from a separate source which directly corroborates one or more of the assaults may be sufficient to corroborate each assault as part of that course of conduct, or, alternatively evidence on charges 3, 5 and 6 could provide the necessary corroboration of S’s evidence on the assaults in charge 1. Despite these misdirections, the court took the view that no miscarriage of justice occurred and refused the appeal. The court considered that the written and oral directions given on the application of the doctrine of mutual corroboration and the applicability of the doctrine to charges 3, 5 and 6 (which were physical assault charges like charge 1) was of significance. Furthermore, the jury must have accepted the evidence of the complainers, including ‘S’, and must have taken the view that charge 1 formed a part of the same course of conduct as that described in charges 3, 5 and 6, which charges the jury had been given appropriate directions on mutual corroboration and thus provided the jury with a route to a verdict of guilty.