M.R. v. Her Majesty's Advocate [2013] HCJAC 8

Criminal Note of Appeal Against Conviction and Sentence:- On 19 August 2011, at the High Court of Justiciary in Edinburgh, the appellant was convicted of ten charges involving sexual offences against three daughters, two nieces and a daughter-in-law. The main issues in this appeal concerned a charge of sexual assault committed against his daughter, DB, (charge 4), and the rape of his niece, SG, (charge 6). On 23 September 2011 the appellant was sentenced to a total custodial period of eleven years, the period on charge 4 being three years and that on charge 6 being a consecutive seven years. The appellant appealed against his conviction and sentence. In relation to charge 6 it was contended that there was insufficient evidence to corroborate the complainer's evidence of rape and the evidence of indecent assault on charge 4 could not be used to corroborate an incident involving penetration or sexual intercourse, as was libelled in charge 6. It was submitted on behalf of the appellant that the evidence on the assault charge 4 could not provide that corroboration, given the dissimilarities in time, character and circumstances for the application of the Moorov doctrine, as for the principle of mutual corroboration to operate, it was necessary that the charges be "the same in kind". On behalf of the Crown it was submitted that whether separate incidents of behaviour could be regarded as so connected in time, character and circumstances, as to justify an inference that they were part of a course of criminal conduct systematically being pursued by an accused, must always be a question of fact and degree and the similarities and dissimilarities, should be left to the jury, unless it could be said that on no possible view could there be a connection between the charges. Here the court considered the application of the doctrine of mutual corroboration in light of the case of B. v. H.M.A. 2009 J.C. 88 in which it was repeated that it was for the jury to determine whether there was an underlying similarity between behavior libeled in separate charges. Here the court considered whether the similarities in time, place and circumstances in the behaviour proved in terms of the libel demonstrated that the individual incidents were component parts of one course of criminal conduct persistently pursued by the appellant. The court also considered whether a sentence of eleven years in total for ten charges of sexual misconduct, involving three daughters, two nieces, and a daughter in law, was excessive having regard to the nature of the conduct against the personal circumstances of the appellant, aged 72, who was a first offender and was assessed as at low risk of re-offending.