Duthie v HMA [2021] HCJAC 23

The Appellant was convicted of 29 charges spanning 15 years. Of these, two charges were that of rape of former partners of the accused, which were libelled to have occurred between 2008 and 2011.

The Appellant appealed his conviction on the ground that the trial judge had erred in his directions to the jury surrounding mutual corroboration. He had determined that the jury were entitled to view the “domestic setting” of the sexual offences as an extraordinary circumstance that could link the charges with sexual elements. He further determined that it was a matter for the jury to find whether such special circumstances could be found linking the rape charges between 2003 and 2011 in respect of the length of time between them.

The Appellant submitted that these directions were flawed as it was a matter for the trial judge, not the jury, to determine the sufficiency of evidence. In response, the Crown submitted that the whole course of the offending had to be looked at together, especially with the context that the Appellant was domestically abusive to his partners. The Crown further submitted that there were “sufficient similarities” between the rapes that would allow mutual corroboration, both in terms of the victim profile and abuse both victims had endured during the relationship.

The Appeal Court has, in its decision, reaffirmed the doctrine of mutual corroboration. Furthermore, relying on the ruling in the case of MR v HMA 2013, the Appeal Court held that non-sexual offences could not normally corroborate the crime of rape, but that the trial judge was correct in saying that the jury were entitled to take into account the domestic context of the relationship, as well the nature of events that took place during the relationship.

Rejecting the Appellant’s argument surrounding the sufficiency of evidence, the Appeal Court held that the trial judge was also correct to reject a no case to answer submission made by the accused. This was on the basis that the Crown had sufficiently established similarities in the appellant’s actings and circumstances of the rapes, as well as the domestic context. As such, it was permissible to allow the jury to draw the “appropriate inference of a course of conduct pursued by the appellant”.

Accordingly, the appeal was refused for these reasons.