Credibility can be assessed against other complainer

The evidence of one complainer in a case based on mutual corroboration can be taken into account in assessing the credibility of another, the Criminal Appeal Court has confirmed.

Lord Justice General Carloway, Lord Brodie and Lord Turnbull gave the ruling in refusing an appeal against conviction by PGT, on charges of indecent assault and sodomy on his nephew G, then aged between 12 and 15, dating from 1997 to 2000, and rape of his then wife B, on an occasion in 2006. 

Both complainers spoke to incidents in a bedroom in the complainer's home when no one else was present, to the accused removing their lower clothing and forcing penetration, to being under the influence of alcohol, which in G's case the accused had plied him with, and to the accused having also been drinking, and having taken steps to ensure they told no one else.

The grounds of appeal were (1) that there was insufficient connection between the charges for mutual corroboration; (2) that the advocate depute in addressing the jury had wrongly referred to using the similar nature of the charges in assessing the complainers' credibility and reliability: while there was a division of views in the obiter remarks in Dreghorn v HM Advocate (2015), Lord Malcolm's observations were correct and the trial judge should have given a clear direction that the advocate depute's approach was incorrect; (3) that a direction that the existence of significant differences in the circumstances did not mean that the jury could not apply mutual corroboration, was inconsistent with the correct direction that the circumstances had to be “so closely linked” as to bind them together as a single course of conduct systematically pursued.

Delivering the opinion of the court refusing the appeal, Lord Carloway said that as respects the first ground, it was only where “on no possible view” could it be said that the individual incidents were component parts of a course of conduct persistently pursued by the accused that a no case to answer submission should be upheld. Here there were the necessary similarities, “notably the familial circumstances of the offences and the fact that they took place in the appellant’s home... it could not be said that on no possible view could the jury draw the appropriate inference”.

On the second ground, Lord Carloway stated that as a generality in Scots law, once evidence was deemed admissible, “it is available for the jury’s consideration at large in the manner which the jury deem appropriate. It is simply not practicable, nor does it accord with common sense, to direct a jury that, although they, as well as the trial judge, may, in the modern era, require to determine whether a complainer’s testimony is formally corroborated by that of another, they cannot take the existence of that other’s testimony in determining whether the first complainer’s account is credible and/or reliable”. 

He continued: “It defies reason to suggest that the existence of a second complainer, with an account of the same nature as is required to establish mutual corroboration, can play no part at all in assessing the credibility of the first complainer and vice versa.”

How a particular jury went about the tasks of assessing credibility and reliability, and deciding whether mutual corroboration was applicable, “which are concerned with the assessment of matters of fact, is for the jury to determine. There may be a degree of circularity, but it is none the worse for that”. In some cases the value of the other complainer’s evidence in the assessment of credibility and reliability might be minimal; in others it might be considerable; but this fell firmly into the jury’s province. 

The limiter in Scotland was the exclusion of general similar fact evidence which was not capable of providing mutual corroboration in the conventional manner. The advocate depute's approach could not be faulted and did not require correction. 

The third ground was also rejected as the judge had stressed the need for a single course of conduct systematically pursued, and said mutual corroboration should be applied with caution particularly where there was a significant time gap and only two complainers. There had been no misdirection.

Sentence was however reduced from 10 years to eight, principally as the appellant, now aged 56, was of “significantly low” intelligence.

Click here to view the opinion of the court.