Introduction

The case of GS v His Majesty's Advocate ([2023] HCJAC 35) adjudicated by the Scottish High Court of Justiciary represents a significant examination of the doctrine of mutual corroboration within the context of sexual offences. This appeal centers on the appellant, GS, who was convicted of multiple sexual offences against two complainants, LS and LH, under the Sexual Offences (Scotland) Act 2009. The appellant contested the conviction on the grounds of alleged misdirection concerning mutual corroboration during jury instructions. This commentary delves into the intricacies of the court's decision, the legal principles applied, and the potential implications for future jurisprudence in Scotland.

Summary of the Judgment

In November 2022, GS was convicted on two charges under the "Sexual Offences (Scotland) Act 2009": one involving lewd and indecent practices towards his daughter, LS, between January 2004 and January 2010, and another concerning sexual assault of LH between May 2014 and May 2015. Initially, a third charge against GS was found not proven. Upon appeal, GS argued that the jury was improperly directed regarding the necessity of mutual corroboration between the evidence of the two complainants, leading to a miscarriage of justice.

The High Court of Justiciary upheld the original conviction, determining that the sheriff's directions to the jury were appropriate and that there was sufficient evidence to apply the doctrine of mutual corroboration between charges 1 and 3. Consequently, the appeal was refused, confirming the convictions.

Analysis

Precedents Cited

The court referenced several key precedents to underpin its decision:

• Donegan v HM Advocate 2019 SCCR 106: This case emphasized the necessity for evidence to indicate a systematic course of criminal conduct.
• HM Advocate v BL 2022 JC 176: Reinforced the application of mutual corroboration in sexual offence cases.
• MR v HM Advocate 2013 JC 212 and Reynolds v HM Advocate 1995 JC 142: Highlighted the high threshold required to establish that individual incidents form a single course of conduct.
• HM Advocate v SM (No 2) 2019 JC 183, Adam v HM Advocate 2020 JC 141: Discussed the reliance on jury discretion in assessing the weight of similar and dissimilar evidence.

These precedents collectively informed the court's stance on the flexibility and applicability of mutual corroboration, especially in cases involving multiple complainants with varying circumstances.

Legal Reasoning

The court's reasoning pivoted on the doctrine of mutual corroboration, which allows for convictions based on multiple charges if the evidence on one charge corroborates the evidence on another. The appellant contended that the differences in the complainers' ages, the nature of the offences, and the time gap between incidents negated mutual corroboration. However, the court examined the overarching similarities:

• Both complainants were young females significantly younger than the appellant.
• The offences occurred in the appellant's homes under circumstances where privacy was invaded.
• The appellant was under the influence of alcohol during the offences.
• The complainers were part of the same friendship circle.

Despite acknowledging dissimilarities, such as the pre-pubescent status of LS compared to LH's young adulthood, the court determined that the collective evidence pointed towards a pattern of behavior indicative of a single course of criminal conduct. The sheriff's judgment that the jury was correctly instructed and that they were within their rights to apply mutual corroboration based on these factors was upheld.

Impact

This judgment reinforces the judiciary's approach to the doctrine of mutual corroboration, especially in cases involving multiple complainants. It underscores the importance of holistic assessment over rigid adherence to specific factors like age or exact nature of misconduct. The decision may influence future cases by:

• Affirming the courts' discretion in evaluating the cumulative evidence to identify patterns of misconduct.
• Encouraging a nuanced interpretation of mutual corroboration, allowing for convictions even when complainers' testimonies present both similarities and differences.
• Emphasizing the role of jury discretion in determining the weight and credibility of evidence within the context of mutual corroboration.

Legal practitioners may need to prepare for greater flexibility in leveraging mutual corroboration in complex sexual offence cases, while ensuring comprehensive and consistent evidence presentation.

Complex Concepts Simplified

Doctrine of Mutual Corroboration

The doctrine of mutual corroboration allows for a defendant to be convicted on multiple charges if the evidence for each charge corroborates the other. Essentially, the presence of multiple similar accusations can strengthen the overall case against the defendant, even if each individual charge might not stand alone as easily.

Single Course of Criminal Conduct

A single course of criminal conduct refers to a series of related offences committed by a defendant that are part of a continuous pattern or modus operandi. Establishing this can be crucial in demonstrating the defendant's intent, behavior patterns, and the systematic nature of their criminal activities.

High Test of Impossibility

The term high test of impossibility indicates that it is exceptionally challenging to prove that certain conditions cannot possibly be met. In the context of mutual corroboration, it means demonstrating beyond doubt that no reasonable jury could find a link between different charges based on the evidence presented.

Conclusion

The High Court of Justiciary's affirmation of GS's conviction in HCA/2023/000027/XC underscores the judiciary's commitment to a comprehensive and flexible application of the doctrine of mutual corroboration in sexual offence cases. By emphasizing the collective weight of similar evidence over isolated differences, the court has reinforced a nuanced understanding of criminal conduct patterns. This judgment serves as a pivotal reference for future cases, highlighting the delicate balance between acknowledging individual variances and recognizing overarching behavioural consistencies. Legal professionals must take heed of this approach, ensuring that multifaceted evidence is meticulously presented and assessed within the broader context of established legal doctrines.