Appeal allowed for directions beyond prior submissions
The trial judge, in a case involving the alleged rape of a 13 year old girl, misdirected the jury – and himself – in raising the issue of corroboration by distress when that had not been raised in a detailed prior discussion with counsel of issues to be covered, and both counsel had addressed the jury on the basis that the case was based entirely on the Moorov rule, the Criminal Appeal Court has held.
Lord Justice Clerk Lady Dorrian, Lord Pentland and Lord Matthews gave the decision in upholding an appeal against conviction by Sean Hogg. The appellant was convicted of this single charge (said to have taken place on various occasions between March and June 2018 in Dalkeith Country Park, against the complainer, K), which was charge 2 on an indictment which also alleged indecent assault of M, and two other charges of rape and sexual assault against K, who was then the appellant's girlfriend.
At trial the Crown case was based solely on mutual corroboration between K and M. The advocate depute confirmed this to the judge in a discussion before the closing speeches; the judge appeared to agree. "Despite this," the Appeal Court narrated, "the trial judge must at some stage have concluded that the evidence of apparent distress spoken to by [a friend of K] (i) related to the June incident; and (ii) was capable of providing corroboration for the complainer in respect of that last incident. He did not raise this with the advocate depute or defence counsel. He directed the jury that the Moorov doctrine was available as corroboration for all elements of charge 2, but in addition accordingly directed the jury that the evidence of distress could corroborate the complainer’s evidence 'in relation to the last rape she says she suffered'."
After the verdict was returned but before it was recorded, the advocate depute and defence counsel both submitted that it could not stand, but the judge after consideration directed that it be recorded. In his report he stated that although there was some lapse of time between the last incident and the timing of the distress spoken to, that per se was not a bar to it being such evidence, and he considered it incumbent on him to identify any basis on which K's evidence might be corroborated.
The Crown accepted that there had been a miscarriage of justice but argued that an amended verdict could be substituted as respects an earlier occasion in respect of which the appellant admitted he had had intercourse with K, which the evidence suggested was in fact the closest in time to the distress spoken to.
Delivering the opinion of the court allowing the appeal, Lady Dorrian said the trial judge had "complicated matters" by directing the jury that corroboration by distress could be found in relation to the June incident. "Given the discussion which had taken place, and the nature of the evidence, he misdirected himself in doing so; and he misdirected the jury.
"He misdirected himself in that it was procedurally inappropriate for him to have given the direction without raising the issue with parties, when (a) there had been a detailed discussion in which the advocate depute made it clear that the sole basis for approaching the case was Moorov; (b) where the judge appeared to have acknowledged this to be correct; and (c) both parties had addressed the jury on that common understanding. This formed the basis of a ground of appeal based on procedural unfairness and we consider that ground to be well founded. Indeed, the Solicitor General virtually conceded as much."
She added: "While the practice is neither mandatory nor inevitable, if the judge chooses, prior to the speeches, to engage in a discussion with parties determining the source and nature of the corroborating evidence to be relied upon, fairness demands that he should raise with parties any alternative approaches to corroboration which he considers to arise or upon which he intends to direct the jury. Here the issue went to the very root of the Crown case in respect of part of charge 2... In the present case, it is clear from the submissions made by counsel for the appellant after the verdict was returned, that she considered corroboration by distress not to have arisen in the way suggested by the trial judge... The procedure was manifestly unfair and prejudicial to the defence, and on this basis alone the appeal has to succeed."
As respects the course proposed by the Crown, the evidence of distress was not such as would have enabled the jury to conclude that the complainer exhibited genuine distress to AM, which was related to, and caused by, the earlier incident, "without indulging in a significant degree of speculation". In any event it would not have been a justifiable course where the misdirection was one of law rather than fact.
Allowing the appeal, the court added in conclusion: "We should make it clear however that we are satisfied that, but for the error of the trial judge, this would have been the result at trial. The only available means of corroboration was the application of Moorov; without that there could be no route to any verdict of guilt. The jury having rejected Moorov there could be only one result: acquittal."