Sean Robin James Hogg v. His Majesty’s Advocate [2023] HCJAC 37

Note of appeal against conviction:- At the High Court the appellant was convicted after trial of a charge of rape (charge 2 re KM). The Crown case was presented solely on the application of the doctrine of mutual corroboration. In advance of the speeches, the Advocate depute confirmed to the trial judge that the Crown case was wholly dependent on the application of Moorov and that the jury would require to accept the accounts given by both complainers for any conviction. It was not suggested by the Advocate depute that the distress exhibited by a complainer was of a type as to provide separate corroboration and the trial judge did not raise it and appeared to agree that the only route to guilty verdicts case was by the traditional application of the Moorov doctrine and that no alternative verdicts required to be addressed. In his charge, however, the trial judge directed the jury that the Moorov doctrine was available as corroboration for all elements of charge two, but also went on to direct the jury that the evidence of distress could corroborate the complainer’s evidence “in relation to the last rape she says she suffered”. When the jury announced their verdict but prior to it being recorded the Advocate depute and Senior Counsel for the appellant indicated there was a legal matter to raise and the jury retired. There had been 4 charges on the indictment:- Charge 1, a sexual assault, related to complainer, KMM, while the remaining three charges (2-4) related to KM. Charges 3 and 4 were respectively charges of rape and sexual assault. The jury returned a verdict of not proven with regard to charges 1, 3 and 4 but guilty to charge 2 under deletion of one of the two address in Edinburgh albeit they did not delete “on various occasions”. The Advocate Depute submitted that the verdict could not stand and the trial judge agreed, on the basis that it was incompetent to acquit on charge 1 but to convict on charge 2. It seemed the judge was about to record the verdict as an acquittal, before noting that distress might provide corroboration, however, on behalf of the appellant it was submitted before the trial judge:- (a) the pre-speech discussion between parties (and agreement of the judge) which confirmed this was a Moorov only case; (b) that it was not accepted that the distress in question was available as corroboration in the circumstances of the case; and (c) the jury had failed to delete the words "various occasions" which was not in accordance with the directions given. Despite that the trial judge directed the verdict to be recorded as returned by the jury. The appellant appealed against is conviction in relation to charge 2. The trial judge reported to the court that he considered it was open to the jury to find corroboration of the evidence of the June incident libelled on the basis of the distress. It was submitted on behalf of the appellant that a miscarriage of justice had occurred as the trial judge had misdirected the jury by suggesting that such vague evidence of distress as described in the present case could provide corroboration. It was further submitted, at the time of this appeal, that the appellant could only be convicted on the basis directed by the trial judge if there was independent corroboration of penetration in relation to the second incident and here there was no such evidence, as conceded by the Crown prior to the speeches. On behalf of the Crown it was submitted that the jury’s verdict should be understood to be a conviction in respect of both the March and June incidents and it was accepted that there had been a miscarriage of justice in relation to the conviction of the appellant in respect of the second incident and the court was invited in terms of section 118(1)(b) of the 1995 Act to substitute an amended verdict of guilty to the earlier incident in March. Here the court allowed the appeal. The court noted that the Crown had presented their case throughout the trial on the basis of the application of the doctrine of mutual corroboration and the trial judge had misdirected the jury by directing the jury that corroboration by distress could be found in relation to the June incident at Dalkeith Country Park in light of the discussion which had taken place between parties and the nature of the evidence. The court considered that the absence of corroboration following the law in Smith v Lees 1997 JC 73 (as it was at the time of this appeal) meant that the direction to the jury amounted to a misdirection. The court stated that the only available means of corroboration was the application of the doctrine of mutual corroboration there being no other route to any verdict of guilty and the jury, having rejected the application of Moorov, inevitably had to return a verdict of acquittal. The court refused the Crown application for a substitute verdict of guilty limited to the earlier incident. The court stated that the distress evidence relied on by the Crown was too vague as to timing, context and circumstances to be available for corroborative purposes but the court noted, even if it had been, given the verdict would be so radically different to the one returned by the jury it would not be appropriate to substitute the verdict now sought by the Crown.