John Deeney was convicted and sentenced to imprisonment for indecently assaulting his foster brother when he was a teenager. On appeal at the High Court of Justiciary Mr Deeney argued that the trial judge had misdirected the jury. The judge informed the jury that they could consider evidence of other conduct which took place when he was aged 9 to 10 as mutually corroborating the events which were libelled in the indictment. 
The appellant was charged with indecently assaulting the complainer on several occasions, the appellant was between the ages of 14 and 17 when these events occurred. Attached to the indictment was a docket stating that the Crown intended to present evidence of further instances of indecent assault against another individual. At this time the appellant was between 9 and 10 years old. It would not have been in compliance with section 41A of the Criminal Procedure (Scotland) Act 1995 to prosecute the appellant for the docket offence at the time when the indictment was served. However, at trial the evidence relating to the docket was deemed admissible and corroborated the conduct on the indictment. The appellant denied that any of the conduct had taken place. 
The appellant submitted that the trial judge should have invited submissions on sufficiency. For mutual corroboration to apply it was a requirement that the corroborative events amounted to a crime. Due to the appellant’s age at the time of the events on the docket he would have been unable to understand consent. As a result, the events on the docket did not amount to a crime. 
Lord Carloway in delivering the opinion of the court stated that “There is no requirement that the events libelled in a docket should, by themselves, constitute a crime of which the accused could be convicted”. He stated: “It is true to say that the events in the docket must have amounted to a crime in order to provide mutual corroboration of another crime. That does not mean that the crime has to be one of which the appellant could competently be convicted”.
The appeal was refused, and Lord Carloway concluded: “The appellant was above the age of criminal responsibility at the time and could have been convicted of that offence. There is nothing in the subsequent legislative amendments in 2009 or 2019 which affects this. That is sufficient for present purposes. The docket witness was not capable of consenting to the acts involved. The appellant’s inability to consent or to understand the concept of consent is, in that context, irrelevant.”