The appellant, DM, was convicted in relation to 14 assaults committed by him to his ex-partner. His counsel argued on his behalf that the Sherriff in the initial trial was unclear and as a result misled the jury. 

In the initial trial, it had been agreed that the parties were a couple throughout the specified time period. The crowns case relied upon eye witness evidence for 5 of the charges that spoke to the fact that the appellant had assaulted the complainer in this case. With regards the remaining charges, the Crown based their case on the well-known doctrine of mutual corroboration.  It was the case for the defence that there was no case to answer because mutual corroboration as inapplicable due to material differences in time, character, locus and circumstances. 

Throughout the initial trail, the sheriff educated the jury on the Howden Doctrine as established in  Howden v HMA. They advised the jury that the doctrine was applicable. However, the next day, the sheriff then directed the jury to consider the Moorov Doctrine as established in Moorov v HMA. In doing so, he informed the jury that Howden should not apply and that he was mistaken in his previous remarks. This error formed the basis of the appellants appeal case. The appellant claims that this error would have had a significant impact on the jury and their final decision to convict. 

In considering the appeal, it was stated that it was ‘abundantly clear’ that the trial sheriff was mistaken in his erroneous directions and that he should have removed the remark for the jury and their considerations. However, it was discussed that the misdirection would only be fatal if it had the ability to alter the outcome when considering ‘the context of the case as a whole’ 

Therefore, despite the fact that there was ‘clearly a misdirection’ the appeal against conviction was refused as when considering the case in its totality, no miscarriage of justice was deemed to have occurred.