BEGG AGAINST HER MAJESTY'S ADVOCATE [2015] ScotHC HCJAC_69 (07 August 2015)

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URL: http://www.bailii.org/scot/cases/ScotHC/2015/2015HCJAC69.html
Cite as: 2015 SCL 802, 2015 SLT 602, 2015 SCCR 349, [2015] HCJAC 69, 2015 GWD 26-452, [2015] ScotHC HCJAC_69

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 69

HCA/2014/3408/XC

Lord Justice Clerk

Lord Malcolm

Lady Cosgrove

 

OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

DUNCAN WILLIAM BEGG or DREGHORN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McConnachie QC, Findlater; Faculty Services Ltd (for Craig Wood, Solicitors, Inverness)

Respondent: R Goddard AD; the Crown Agent

 

7 August 2015

Introduction

[1]        On 24 June 2014, at the High Court in Aberdeen, the appellant went to trial on an indictment containing 43 charges (a plea of not guilty to one charge (originally charge 37) having been accepted).  Apart from charges in which children were involved, there were 3 principal complainers.  The first only featured in one of the charges (1), which libelled a rape sometime in the years 1984-87.  The appellant was, in due course, acquitted of that charge and no issue arises from that.  On 4 July, after the conclusion of the Crown case, the trial judge sustained a no case to answer submission in respect of two charges (29 and 36).  The advocate depute withdrew 16 charges (4-6, 8, 16, 22-25, 30-31, and re-numbered charges 38-39, 41-43).  This left, first, 17 charges (2-3, 7, 9-15, 17-21, and re-numbered 37 and 40), all of which involved the second complainer, VH.  These libelled: rape (3, 10, 14, 15, 19, 20 and re-numbered 40); indecent assault (2, 7, 9, 11-13, 18 and 21); and assault (17, and 37).  The appellant was convicted of only 4 of these charges: 2 rapes (3 and 20); 1 indecent assault (7); and 1 assault (37).   He was acquitted of 3 charges of lewd practices primarily involving his own children (26-28), although the supporting testimony on these charges came from VH.  There remained, secondly, 4 charges (32-35) involving the third complainer, SM, being: rape (32 and 34); assault (33); and indecent assault (35).  The appellant was convicted of all 4 of these offences.


[2]        The appeal is about whether the jury’s verdicts were unreasonable.  The essence of the complaint is that it was not reasonable for the jury to accept the evidence of VH on only 4 charges, standing their apparent rejection of her evidence in respect of the other 13.  Without accepting this evidence, the jury would have been unable to convict the appellant on any charge involving either complainer, standing the accepted need for mutual corroboration.  Although, at the hearing of the appeal, it was stressed that the appellant need not go that far, the Note of Appeal contains a particularly serious allegation about the conduct of the jury as follows:



“… the jury have selected at random certain charges spoken to by [VH] purely to allow them to convict of the charges involving [SM]”.

 

The broad contention, however, was that the evidence of VH was “wholly lacking in credibility”.

 

Evidence
SM charges

[3]        It is convenient to summarise first the testimony of the third complainer, SM, since it is not disputed that the jury must have accepted her evidence as credible and reliable in its essentials.  Miss M had met the appellant in about 1998, when she was 16.  She had been allocated local authority accommodation in Wick.  This was used as a drinking den by, amongst others, the appellant and his then wife, the second complainer, VH.  Miss M’s relationship with the appellant began in earnest in the following year, by which time he was about 32.  She fell pregnant to him.  They moved to an address in Lybster.  The relationship quickly soured because of the appellant’s domineering nature and excessive alcohol consumption.


[4]        Miss M spoke to being physically assaulted by the appellant over the years 1998 to 2004 (charge 33), when she tried to intervene in arguments between the appellant and his children.  He would punch and slap her and pull her hair.  This happened three or four times a week.


[5]        In about May 2000 (charge 32) the appellant had been arguing with the complainer in the house.  The complainer, who was only wearing a nightie, told the appellant that she was going to bed.  He grabbed her and ripped her nightie off.  He threw her out of the back door and locked it, leaving her outside naked.  He eventually let her back in.  He again grabbed her, pushed her onto the floor, raped her and penetrated her anally.  There was no libel for the latter which, at the time, did not constitute rape. 


[6]        A few months later (charges 34 and 35), the complainer was again in the house with the appellant, who was “half drunk”.  She attempted to leave the house, but he stopped her.  He pushed her and she fell onto the side of a couch.  As she tried to get up, he grabbed her arm and held it behind her.  She was bent over the couch.  The appellant pulled down her jogging bottoms, raped her and penetrated her anally (libelled separately as an indecent assault).

 

VH charges
 
[7]       The charges involving VH libelled a catalogue of extreme behaviour consisting of sexual and physical assaults and threats to her children.  The first chapter (charges 2 to 5) related to conduct occurring in the complainer’s home some time between March and June 1990.


[8]        Charge 2 libelled “an occasion” on which the appellant was alleged to have stripped the complainer, penetrated her anus with his penis and penetrated her anus and vagina with a whisky bottle.  Charge 3 was also libelled as occurring on “an occasion”, but it was the same occasion as that in charge 2.  Some of the averments were deleted by the advocate depute, but what remained included physical violence by repeated punching and kicking and repeated rape.  The rape charges included averments of cigarette burns and pouring whisky over the complainer.  Charges 4 and 5 each again referred to “an occasion” but, once more, the libel related to activities following on from the events in charges 2 and 3.  They involved detaining the complainer in her flat for 5 days and assaulting her infant son by, amongst other things, holding him over hot cooker rings and hanging him out of a window by using a “ligature”.


[9]        The complainer’s evidence was that she had only known the appellant vaguely at the time.  He had appeared at her door asking to borrow a lighter.  He had entered the flat uninvited and, in terms of the libel, raped her repeatedly and committed the assaults on the infant.  A striking feature of the evidence was that the complainer had married the appellant a short time (weeks or months) after this apparently quite appalling treatment.  In due course, the appellant was found not guilty of the indecent assaults in charge 2, but convicted of the rape and related conduct in charge 3.  The Crown had withdrawn charges 4 and 5, as they did also charge 6, which alleged further violence towards the infant.


[10]      Charges 7 and 8 related to one indecent assault on the complainer (including anal penetration) in January 1991 (7), locking her in a boiler room cupboard and detaining her in her flat for several weeks (8).  The Crown withdrew the detention charge and the jury convicted of the assault.


[11]      The appellant was acquitted of charges 9 to 15 and 17 to 19, which libelled conduct later in 1991.  Charges 9 and 10 again related to a single incident, this time in March 1991.  They involved anal penetration (9) and rape (10) on the communal stair outside the complainer’s flat.  Charge 11 libelled a separate incident occurring inside the flat on 18 May 1991, involving anal penetration accompanied by threats to electrocute the complainer with wires inserted in a socket.  Charges 12 to 15 and 17 involved episodes of sexual violence from 20 to 31 May 1991, all at Raigmore Hospital, Inverness, when the complainer had just given birth to her second child.  Charges 18 and 19 involved a single incident of rape and anal penetration on a bus to Wick from Inverness.  The complainer had spoken to these offences occurring on the stairs down to the toilet at the back of the bus.


[12]      Charge 20 was described by the appellant as a “catch-all”.  It libelled rape on various occasions throughout the period of 1 March 1990 to 30 August 2003 at the addresses occupied by the complainer (including that in charge 3) and in certain open air and public places in Wick.  The jury convicted the appellant of this charge, albeit acquitting him of the more specific libels on the indictment.  They convicted him of a similar “catch-all” charge (the re-numbered charge 37) which libelled physical assaults over the same period and at the same locations.  On the other hand they acquitted of a similar general libel (charge 21) of repeated indecent assaults (anal penetration).


[13]      The final charge (40, originally 41) was a rape allegation, said to have occurred in a public street after the complainer had lost consciousness, having been pushed to the ground.  The appellant was acquitted of this.

 

The testimony of VH

[14]      The court has had the benefit of a full transcription of VH’s testimony.  It is worthy of some remark that her examination and cross-examination took up almost 3 court days.  The context is the questioning of a woman with clear vulnerabilities, possibly caused by the nature of events which were alleged to have occurred between 10 and 24 years prior to her appearance in the witness box before a jury.  At an early stage in her examination in chief, it is relatively clear that she was struggling with chronology and in relation to which specific acts fitted into which particular incidents.  There is an overall impression, based only on reading the printed page, of a witness who is generally attempting to answer every question in a positive manner, rather than acknowledging any deficiencies in recollection.  On the second day of her examination-in-chief, she attempted to explain, in relation to the previous day’s testimony, that:


“… I think I’ve been just putting too much into trying to do my best but I’d say I’m panicking at the same time or saying things wrong” (day 2 p 10).

 


[15]      Cross-examination opened (p 36) with a direct salvo rather than a question, presumably designed to destabilise the witness, as follows:


“Q.      … you are a wicked, deceitful, malicious, vindictive liar?

A.        No, I’m not.

Q.        And you have been for the last twenty years?

A.        No, I have not.

Q.        Because you’ve been trying to get [the appellant] into trouble for the last twenty years?

A.        No.  I have not.

Q.        And this is your last hurrah?

A.        No, I have not (sic).”

 


[16]      The substantive element of the cross continued on a theme, which had been commenced by the advocate depute, of trying to establish whether the witness was saying that her alleged confinement in a boiler cupboard in 1991 (charge 8) had been caused by the appellant wedging the door shut with a washing machine or a cooker or locking it by means of a snib, bolt or padlock.  It also pursued, as had the advocate depute’s examination almost from the outset of her testimony, perceived inconsistencies or contradictions with a written statement of some 40 pages taken by the police on 13 December 2012; thus itself many years remote from the alleged offences.


[17]      Although the court does not have the advantage of seeing and hearing the complainer, it is reasonably clear that the cross-examination was, putting matters mildly, combative.  It emphasised the inconsistencies and contradictions with the statement, which was described in questioning as the “foundation” to the complainer’s evidence (day 2 p 59).  By this time, the complainer had explained that she had not told the police or the court everything that had happened to her.  When challenged about the absence of any reference to her being raped first in her hallway, the complainer expressed her shame about everything that had been done to her (p 60).  At a relatively early point in cross-examination (pp 62-63), when the witness’s testimony was being tested in relation to what had happened in 1990, she responded to counsel:


“You weren’t there, you never got it done, you never knew exactly how many times and what all happened.”

 

The judge attempted to calm the complainer down in the face of her protests of “I’m no taking this. … I’m not taking this crap” (p 63).  At a later stage, having been questioned by the judge about the appellant putting a child’s arm under a grill, the cross continued (p 88):


“Q.      You see, all the history on it (? histrionics), … are to make up for the fact that you are getting caught out time and time and time again, why?

A.        No, it’s not.

Q.        And it’s going to happen for the rest of today?

A.        It’s not.”

 

This latter reference was presumably intended to give notice of the potential length of the complainer’s presence in the witness box.  The cross continued (p 90):


“Q.      You see, the real difficulty is when you’re sitting making things up …

A.        I’m not making things up.

Q.        … it’s very difficult to remember, because you’ve spoken to so many people, what you made up the last time.

A.        Whatever you think, then”.

 

The last answer is reflected in a slightly later response (p 91) of “You can believe whatever you want.  I’m not caring no more.  I’ve given up on yous lot …”.


[18]      The argumentative nature of the cross continued.  Towards the end of the second day (p 176) the witness was acknowledging that, both at the time of providing the statement and when giving evidence, her head was “all over the place”.  She appeared physically ill and the court adjourned until the following morning, when her evidence resumed.  In total, the complainer’s examination-in-chief and re-examination occupied 250 pages of transcription with cross occupying a further 300 pages of print.

 

Defence speech and judge’s charge and comment

[19]      The appellant did not give evidence, although a recording of his police interview was played.  There was plenty of material to work into the defence speech covering the evidence of VH, even without reference to its contradictions with the appellant’s recorded account.  As counsel put it (p 27):


“The truth doesn’t change.  It can’t be that different each time you tell it and if it is that different each time you tell it there’s got to be an explanation for that, and the explanation for that is it’s not true”. 

 

The account of the complainer in relation to the first incident involving VH was described as involving “preposterous allegations”, especially given that they were followed by marriage.  The detail of incidents testified to by the complainer was severely criticised.  The improbability of the public locations of several of the rapes in Raigmore Hospital, on the Wick bus and elsewhere was highlighted. 


[20]      Ultimately, it was submitted (p 38) that “there is not a single solitary word of her testimony that you can place any reliance on”.  Whilst accepting that it was the prerogative of the jury to believe part of what a witness said and disbelieve another part, it was argued that there came a time with any witness when, because of his/her demeanour, the quantity of the lies and the preposterous nature of those lies, a jury should reject the witness’s evidence entirely.  Counsel repeated his description of VH as a “wicked, vindictive, manipulative liar”.


[21]      The trial judge gave the jury the standard direction on credibility and reliability; stressing the jury’s entitlement to accept parts of a witness’s evidence and to reject others.  He gave impeccable directions on the standard of proof.  He explained the principle of mutual corroboration as follows (p 13):


“… if you were satisfied that crimes charged were so closely linked by their character, the circumstances of their commission, and the timescale over which they were allegedly committed as to bind them together as parts of a single course of criminal conduct systematically pursued by an 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 another crime…

For the doctrine to apply, you have to believe the witnesses who speak to the individual charges.  If you don’t … there can be no corroboration.  … if you believe a witness on a particular charge, then you would have to find corroboration from a credible witness who speaks to another charge, and if you accepted that other witness, then you would have to decide if by reason of the character, circumstance and time of the charges the crimes were so closely connected that you can infer that the accused was pursuing a single course of conduct.

So it’s a two-stage test…: you have to believe the various complainers as credible and reliable; but you then have to go on … to … consider whether the crimes are … closely linked …”.

 

The trial judge emphasised that, for mutual corroboration purposes, the charges could be looked at in batches, such as the sexual penetration charges and the physical violence charges.  He directed the jury that the evidence of VH was “pivotal”.  If they did not accept it in its essentials, the whole case failed.


[22]      It is of some moment to record that, in response to the Note of Appeal, the trial judge reports:


“I … accept that … [VH] was a difficult witness.  Her evidence lasted three days and was punctuated by numerous breaks after she broke down or attempted to leave the witness box.  I had to warn her on several occasions about blatant contradictory evidence which on occasions she refused to recognise as contradictory.

            I also had to speak to her on several occasions and explain to her the purpose of a jury trial and why she must answer the questions put to her.  I also had to explain the function of the appellant’s counsel and that his questions were perfectly proper and she was required to answer them.

            I also agree that [VH’s] evidence was at times confusing.  She was clearly a very damaged woman.  It is entirely possible that the abuse which she said she suffered at the hands of the appellant was the cause of this damage.

            It is also true that several members of the jury laughed out loud as senior counsel addressed them about sections of [VH’s] evidence.  They did not all laugh however.

            I am also prepared to concede that the suspicion, such as that hinted at in the grounds of appeal, could arise from the jury’s ultimate verdicts, but it could only be a suspicion.”

 


[23]      The trial judge continues by describing the grounds of appeal as containing a suggestion that the jury deliberately flouted their oath and effectively perverted the course of justice.  Although that was one view, the other, according to the judge, was that:


“The jury did accept some of what [VH] said and found corroboration of that in what [SM] said and applied the [mutual corroboration] doctrine to what they held proved; thereby obtempering their oath”.

 

The jury may have taken the view that some of what VH had said was true and reliable whilst rejecting large portions of the rest.  This was a view which the jury were entitled to take.  It had to be presumed that they had acted in good faith.

 

Submissions
Appellant

[24]      The appellant maintained that there was no rational basis for the verdicts other than that the jury had selected those in relation to VH at random in order to provide corroboration for those relating to SM, whom the jury had found credible and reliable.  There was, it was accepted, a symmetry between the verdicts in relation to each complainer.  The appellant did not have to go as far as demonstrating that the jury had flouted their oath.  All that he had to do was demonstrate the unreasonableness of the verdict in terms of AJE v HM Advocate 2002 JC 215 (LJC (Gill) at para [28] et seq; cf Lord Hamilton at para [22]; see also Jenkins v HM Advocate 2011 SCCR 575, Lord Clarke at para [44] et seq).  The testimony of VH had been demonstrably incredible and unreliable.  Without it the case was bound to fail.  The jury were not entitled to look at the evidence of SM in order to bolster VH’s credibility, as distinct from providing corroboration of her testimony (AJE v HM Advocate (supra), LJC (Gill) at para [38]; 2002 SCCR 341, Sir Gerald Gordon’s commentary at p 382). 


[25]      That VH’s testimony was incredible could be seen from the inherent implausibility of the first incident, involving anal and vaginal intercourse, detention for days and assaults on her infant.  Her testimony on these matters was confusing, bizarre, inconsistent with her statement to the police and inherently contradictory.  The jury’s decision to acquit the appellant on charge 2, yet convict on charge 3 (both charges involving the same incident), was illogical.  The anal and vaginal intercourse had allegedly been almost simultaneous.  VH’s description of being shut in a boiler cupboard was inconsistent with her police statement and her attempts at clarifying matters had been ridiculous.  The conviction on charge 20 involved, in part, rapes in public places over a period of 13 years.  Children and members of the public had been present, but had apparently largely ignored what was happening.  The jury had convicted the appellant of this charge, yet acquitted of many others, such as the incidents at Raigmore Hospital and on the bus.  They had acquitted of the incidents involving children.  The complainer’s evidence in respect of the many charges of which the appellant was acquitted was no less credible or reliable than that relating to the 4 charges of which he was convicted. 


[26]      VH’s evidence was littered with inconsistency and fantasy.  A substantial number of the jurors had been laughing during the defence speech.  She had been incapable of providing any coherent or rational explanation for the inconsistencies.  Her explanations varied from being confused to deliberately withholding evidence.  She could not explain almost consecutive, contradictory, answers.  There was no evidence of injuries and no independent evidence from persons, such as the police or social workers to whom she said she had spoken, capable of supporting it.


[27]      The court had to decide on an objective basis whether the verdicts were reasonable applying its collective knowledge and experience.  The court was not disadvantaged by not hearing or seeing the complainer giving evidence.  It could appreciate the significance of the inconsistencies, confusion and contradictions by reading her testimony in transcription.  It was no answer to say that this was all a matter for the jury.  A miscarriage of justice had occurred.

 

Crown

[28]      The advocate depute submitted that there was, within the testimony of VH, a cogent framework which the jury had been entitled to accept as credible and reliable.  It could not be said that no reasonable jury could have been satisfied beyond reasonable doubt on the charges upon which a conviction followed (King v HM Advocate 1999 JC 226; AJE v HM Advocate (supra); Jenkins v HM Advocate (supra); Wilson v HM Advocate 2010 SCL 1042 at para [16]; McDonald v HM Advocate 2010 SCCR 619; Montgomery v HM Advocate 2000 SCCR 1044).  VH had been able to testify to all the charges without reference to the statement given to the police.  Much of the cross-examination had related to matters of which the appellant had been acquitted.


[29]      The jury had been entitled to look at the other evidence when assessing VH’s credibility.  This included testimony from a Prof Lindsay, clinical and forensic psychologist, upon delayed disclosure in domestic abuse cases.  Shame, fear, low self-esteem, a belief that an abusive partner will change and a lack of understanding of the definitions of rape, all provided sound reasons for such delay and all were present in VH’s situation.  The jury had also been entitled to take the clear similarity in SM’s testimony into account when assessing VH’s credibility.


[30]      The contention in the Note of Appeal that the jury had selected charges relating to VH at random was speculation.  To do so would have been contrary to the jury’s oath and to the presumption that they abided by that oath.  The jury’s verdicts had, on the contrary, shown a discriminating approach in their application of the trial judge’s directions.

 

Decision

[31]      The appeal proceeds upon a contention, in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, that the verdicts of the jury were such as “no reasonable jury, properly directed, could have returned”.  As was recently rehearsed in Geddes v HM Advocate 2015 JC 229 (LJC (Carloway) at para [4]), the approach to such a ground, within the overall context of “miscarriage of justice”, is well settled.  It is an objective exercise:


“The court has to ‘assess the reasonableness of the verdict with the benefit of its collective knowledge and experience’ (AJE v HM Advocate 2002 JC 215, LJC (Gill) para 30 …).  It is only in the ‘most exceptional of circumstances that an appeal on this ground will succeed’ (Harris v HM Advocate 2012 SCCR 234, Lord Bonomy … [at] para 67).”

 


[32]      As was also explained in Geddes (at para [5]), one reason for the test being set at such a high level is the fact that it is accepted that there was a sufficiency of evidence.  Whatever criticisms may be made of the jury’s verdict, there will normally have been a corroborated case against the appellant at the point immediately before the jury’s consideration of the evidence.  The argument will often be, as it is here, one of whether the jury could reasonably have accepted the testimony of a particular witness, or part of it, as credible and reliable.  That remains traditionally the jury’s territory, even if the court should not interpret section 106(3)(b) out of existence by “excessive deference to the judgment of the jury” (AJE v HM Advocate (supra), LJC (Gill) at para [35]).


[33]      There is no foundation for the proposition advanced in the Note of Appeal and the submissions to the court that the jury have selected at random certain charges spoken to by VH purely in order to allow them to convict of charges involving SM.  Not only is this entirely speculative, it runs contrary to the more obvious explanation for the verdict; that the jury followed the directions of the trial judge as they were duty bound to do so.  It should not be readily assumed that the jury’s acquittals on many charges involving VH were because they did not believe VH’s evidence in its essentials on each charge.  The more readily comprehensible reason is that, although they may have been prepared to believe VH, they decided, quite rationally, that they could not convict the appellant of charges which were not sufficiently adequately linked in terms of time, character and circumstances with the charges concerning SM such that they could be regarded as part of a course of criminal conduct systematically pursued by the appellant.


[34]      Contrary to the submission of the appellant, the court does not, as already noted, have what remains an undoubted advantage of having seen and heard the complainer in the witness box.  That advantage, where the assessment of the credibility of a particular witness is central to a proper consideration of the case, should not be underestimated.  What the court does have, however, is the view of the trial judge.  In an appeal which proceeds upon the ground of unreasonable jury verdict, the court should afford considerable weight to the judge’s view.  In this case, the judge has rightly observed that, in determining to accept part of what VH said, the jury may well have been swayed by the testimony of SM of “very similar treatment”.  In that respect, the position is radically different from that in AJE v HM Advocate 2002 JC 215, where the corroborating testimony was both weak and related only to one incident.


[35]      The jury is entitled to take into account all the evidence in assessing the credibility and reliability of each witness.  The principle that the testimony of each witness in a mutual corroboration case must be regarded as credible and reliable before it can be used as formal corroboration does not carry with it any implication that the assessment of the credibility of one witness’s testimony should be carried out in a vacuum, ignoring the testimony of the other or others.  There is no authority in Scotland to support such a proposition and it defies common sense.  The analysis of this issue in Attorney-General of Hong Kong v Wong Wuk Ping [1987] AC 501 is sound.  In that case the same proposition, as was advanced by the appellant here, was firmly rejected by the Privy Council in favour of the correct view that a jury is entitled to take into account the potentially corroborating testimony in assessing the credibility and reliability of the testimony of the witness requiring that corroboration (ibid Lord Bridge of Harwich at 510 and 512, explaining R v Hester [1973] AC 296 and R v Kilbourne [1973] AC 729 in which Moorov v HM Advocate 1930 JC 68 was quoted with approval; see also R v Turner (1975) 61 Cr App R 67, James LJ at 84).  The Privy Council’s reasoning was adopted by the Court of Appeal in England in R v Morris (1994) Crim LR 495. 


[36]      Once the directions on mutual corroboration are properly understood, it can be seen why the jury might well decide to acquit of the more outlandish or unusual aspects of VH’s account, when compared to what might loosely, and perhaps unfortunately, be described as the more commonplace elements of domestic sexual abuse.  Thus the jury may have been unhappy about whether the penetration of the anus with a whisky bottle (charge 2) was corroborated.  The same considerations apply to the incidents: on the communal stair (9 and 10); involving electrical wires (11); in Raigmore Hospital (12 to 15 and 17); on the bus journey home to Wick (18 and 19); in the catch-all anal penetration charge (21); and when the complainer was unconscious in the street (40, originally 41).  Charges 26 to 28 were of a different nature and involved children.


[37]      Whilst deciding that the appellant ought to be acquitted of these charges, the jury may have been, as they were fully entitled to be, entirely satisfied that, whatever her lack of memory of certain specific events, VH had been the subject of years of systematic sexual abuse, commencing with an incident near the start of her relationship, albeit perhaps not on her first encounter, with the appellant.  That being so, the jury’s verdicts on charges 3, 7, 20 and 37 (formerly 38) can be seen as reasonable.  These libels were more obviously corroborated by the similar accounts given by SM.  That is so even if it may have been open to the jury to convict of a greater number of offences involving VH, if they had taken a broader view of character and circumstances.  For these reasons, this appeal must be refused.


[38]      Whilst not wishing to be over critical of the advocate depute or defence counsel for the manner in which this case was conducted, given the latitude which seems still to be afforded in practice in cases of this type, it has to be said that both the manner and length of examination and cross-examination give cause for concern in relation to the treatment of a vulnerable, or indeed any, witness testifying in the criminal courts.  The examination lasted for many hours and must have been what can only be described as a substantial ordeal for the complainer.  From the outset of cross-examination, she was subjected not just to in depth questioning testing the veracity of her testimony, but to direct insults of her general character as, for example, being a “wicked, deceitful, malicious, vindictive liar”.  The cross-examination itself then lasted for hours.  It was conducted in a manner apparently calculated to break the will of the witness, which at times it undoubtedly did. 


[39]      Due regard must be had to the right or privilege under domestic law to test a witness’s evidence by properly directed and focused cross-examination.  That right, however, does not extend to insulting or intimidating a witness (Falconer v Brown (1893) 21 R (J) 1, LJC (Macdonald) at 4).  It also requires to be balanced against the right of a witness to be afforded some respect for her dignity and privacy (see Criminal Procedure (Scotland) Act 1995, s 275(2)(b)(i)).  The court must be prepared, where appropriate, to interfere when cross-examination strays beyond proper bounds, both in terms of the nature of the questioning and the length of time for which a complainer can be expected to withstand sustained attack.  In this case, it is doubtful whether the ubiquitous informed bystander would have regarded the conduct of this trial as affording due respect for this complainer’s rights.


[40]      Sections 274 and 275 of the 1995 Act were designed to keep the examination and cross-examination of complainers in sexual offence cases within proper bounds because it was perceived that the common law rules of evidence, as they were being applied in practice, had failed to do so.  Leaving aside a question of whether the correct procedure under these sections (and s 275B) was followed in this case (cf the minutes of 5 March 2014 and those of the first day of the trial), it is important to emphasise that a trial judge has a power to control the nature and scope of questioning.  He is entitled to stop questioning if he considers it to be “protracted, vexatious and unfeeling” (Inch v Inch (1856) 18 D 997, LJC (Hope) at 998) or indeed “over rigorous” (see now for England and Wales, R v Lubemba [2015] 1 WLR 1579, Hallett LJ at para 51; R v Jonas [2015] EWCA Crim 562, Hallett LJ at para 31).  The judge may place a limit on the time which can be taken.  If a proper balance cannot be achieved by the representatives of the Crown and defence, the court may have a duty to intervene.

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 69

HCA/2014/3408/XC

Lord Justice Clerk

Lord Malcolm

Lady Cosgrove

 

OPINION OF LORD MALCOLM

in

APPEAL AGAINST CONVICTION

by

DUNCAN WILLIAM BEGG or DREGHORN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McConnachie QC, Findlater; Faculty Services Ltd (for Craig Wood, Solicitors, Inverness)

Respondent: R Goddard AD; the Crown Agent

 

7 August 2015


[41]      I have had the advantage of reading a draft of the opinion of your Lordship in the chair.  I am in agreement that the appeal should be refused, and that for the reasons given in paragraphs [36] and [37] of your Lordship’s opinion.


[42]      At paragraphs [34] and [35] there is a discussion of the submission made on behalf of the Crown to the effect that in a Moorov case which is dependent upon the evidence of two complainers, the evidence of one can be used to bolster the otherwise incredible or unreliable evidence of the other.  That discussion is obiter, in that it is not necessary for the decision in this case.  However, given the importance of the issue, I offer a few observations of my own.


[43]      For the doctrine of mutual corroboration to operate, it is well-established in our law that:


“The proper approach is to ask whether the essential starting point has been laid by credible and reliable evidence from the single witness speaking to each incident, and then to examine the various tests to see whether mutual corroboration can be obtained" (Coffey v Houston 1992 JC 80 per LJG (Hope) at 86).

 

Immediately before that passage Lord Hope stressed that the doctrine “must always be applied with caution.”  There are numerous passages in Moorov itself (1930 JC 68) which provide the foundation for the proper approach.  The general idea is that a number of credible accounts of separate incidents can, subject to the well-known tests, provide support for each other, and point to a course of criminal conduct pursued by the accused person.  So, if the jury is faced with two accounts from different witnesses as to two separate events, one of which is unacceptable, it follows that the accused must be acquitted of both charges. 


[44]      There is another well-established general rule in our law of evidence, namely that in determining whether to accept a piece of evidence, the fact-finder is entitled to have regard to all the other evidence in the case in order to decide whether it fits in, and can therefore be regarded as trustworthy.  In other words, each adminicle of evidence should not be considered in isolation.  The common sense of this is obvious.  Any other approach would be unworkable.  As Lord Bridge of Harwich said in Attorney-General of Hong Kong v Wong Wuk Ping [1987] AC 501:


“Their Lordships can see no sense in the proposition that the jury be invited, in effect, to reject his evidence without first considering what, if any, support it derives from other evidence capable of providing corroboration” (page 512).

 


[45]      The question which has arisen is whether, for the operation of the doctrine of mutual corroboration, our law requires at least two independently acceptable pieces of evidence?  Or to put it another way, if the acceptability of one complainer’s account as to incident A is dependent upon the acceptability of a separate account of incident B by a different complainer, is there corroborated evidence of a course of criminal conduct?


[46]      For my part, I do not consider that the general approach to the assessment of evidence, as discussed in cases such as Wong Wuk Ping, requires this question to be answered in the affirmative.  The issue is to be approached in the context of the Moorov doctrine as developed in Scotland in accordance with our law as to proof of fact in criminal trials.  One objection to the proposition is that it runs counter to the notion of a rule of mutual corroboration.  While it would appear that the specific point has not been focused in this way in any previous case, reference can be made to an observation in the opinion of the court delivered by Lord Brodie in KH v HM Advocate [2015] HCJAC 42:


“The Moorov doctrine is not about the acceptance of evidence, it assumes that the relevant evidence has been accepted; it is about corroboration, and in particular corroboration of an underlying ‘course of criminal conduct persistently pursued by the accused person …’” (para [24]).

 

The matter has been addressed by Sir Gerald Gordon QC: see 2002 SCCR at 382.  Commenting on the judges’ discussion of the Moorov doctrine in AJE v HM Advocate 2002 JC 215, he said:  


“It is also of interest that the court stressed the fact that this was a Moorov case, and that in such a case each witness must be accepted as reliable.  That is to say, the credibility and reliability of each complainer must be assessed on their own, and the corroboration provided by one complainer cannot be prayed in aid to bolster the shaky credibility of another.”

 


[47]      The issue is particularly acute when there are only two complainers.  It is of interest to note that in R v Kilbourne [1973] AC 729,  in the context of child complainers, Lord Reid could see no ground for refusing to recognise that they could corroborate each other so long as there were enough of them “to show a system” (page 751).  Though no doubt more could be said on the topic, given the obiter nature of the discussion, I will simply reserve my opinion until such is necessary for the resolution of a particular case.

 


APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 69

HCA/2014/3408/XC

Lord Justice Clerk

Lord Malcolm

Lady Cosgrove

 

OPINION OF LADY COSGROVE

in

APPEAL AGAINST CONVICTION

by

DUNCAN WILLIAM BEGG or DREGHORN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: McConnachie QC, Findlater; Faculty Services Ltd (for Craig Wood, Solicitors, Inverness)

Respondent: R Goddard AD; the Crown Agent

 

7 August 2015


[48]      For the reasons given by you Lordship in the chair, I am in complete agreement that the appeal should be refused and I have nothing further to add.

 

 


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