My client, 22 year old male charged with two charges of sexual assault and an attempted rape. We have heard two witness stamens in respect to charge 1 and 2 detailing reaction of the complainers. I am here because I am confident the evidential burden has not been discharged by the prosecutor/the Crown, the adduced evidence not being sufficient.

I will present arguments to prove submission of NO CASE NO ANSWER on grounds of sec 97 of the Criminal Procedure (Scotland) Act 1995. (s.160 for summary proceedings). First, that the evidence as to what had taken place is insufficient to show that the conduct complained of amounted sexual assault and attempted rape as there was no corroboration of the evidence (R v Abbott; Angus Sinclair). Second, it was also submitted that it was not proved that it was indeed my client who committed alleged offence.

IDENTIFICATION

Let us not forget that aside from proving the actus reus beyond reasonable doubt it also need to be proven that it’s the defender who performed the crime. On the grounds on Morton v HMA, I would like to highlight that as in Morton the identification of the accused was not corroborated. Even if in charge 1 the distress evidence will be considered, there still no identification other than this the complainer. Broad description should not be accepted. Mair v HMA and Irvin Donelly.

Before the defender can be prosecuted, it needs to be established that it was indeed my client who committed actions accused of. I understand that under charge two the witness received very vague description of the event referred to in the charge. Can it really be confirmed beyond reasonable doubt that it was my client who was the perpetrator in this case with the witness having only elementary knowledge?

It is not necessary for an eye-witness to be 100 per cent sure of his identification of the accused Langan v HMA

DISTRESS AS EVIDENCE FOR CORROBORATION

Corroboration main reason is to strengthen or confirms or supports a statement or the testimony of a witness. Reliability must be proven. In relation to the first ground of the submission, I had heard circumstantial evidence from the first complainer’s witness ‘hurt and distressed’ at the event of that night.

Distressed state is known in case law to afford corroboration as in did in Fox v HMA. The difference between this case and Fox is that is Fox the accused confirmed that the intercourse took place. It was the consent that was the issue. Also from Fox we know, since the submission has profound implications for the law of corroboration, it is only appropriate to look at the wider context of every case individually. In Fox judge, when discussing corroboration with the jury said< distress was genuine, how great the degree of distress was, how prolonged it was and, most important of all, what it was that was the source of the distress.

There should also be limit to which distress of the complainer can afford coroboraion (Stobo v HMA). And lastly, the compalinter must express genuine distress, spontnious, must be confident the distress caused by the alleged office rather than something outside. (Smith lees). There could be so many competing possible reasons for distress that it ought properly to be regarded as neutral.

I am not doubting that the complainers were distressed or their credibility, however, looking at Begg v Tudhope where the 2 out of four charges were dismissed as one of the complainer, a minor, was held to be confused about the accused touching her in public as statement was inconsistent with witness statement. The witness confirmed that there was no sexual context present at that moment. Mongan v HM Advocate , in which it was held that evidence that the complainer was shaken or upset after the alleged incident was neutral and could not corroborate her evidence that she had been assaultedIt is a useful doctrine and helpful when no other evidence available but highly unjust in regards to the accused especially Let us not forget that evidence can provide corroboration only if it is independent of the direct evidence which it is to corroborate. Distress evidence derives from this doctrine considering that it is the complainer whose distress was witnessed. Somewhat capriciously in practice

WEIGHT OF EVIDENCE

Is this worth highlighting that allowing distress evidence to be submitted we re allowing second-hand evidence to be considered? The witness did not see the act mu client is charged with therefore it is not the best evidence we see here. Much might have been lost or confused in transition. It would not be prudent to consider on grounds on unreliability. If it is the weight of reliance should not be And as the weight of evidence depends on rules of common sense on grounds of Lord Advocate v Lord Blantyre.

CORROBORATION s.57

Our law proceeds on the idea that in deciding matters of fact it is unsafe for a court simply to rely on the testimony of a single witness the crucial facts of the case cannot be proved by the testimony of one witness alone but must be corroborated by another piece of evidence from independent source. Corroboration was put in place to ensure that in criminal proceedings will prove matters to the highest possible standard. Without corroboration its concurrence of testimonies the case if faced with.

Is been recognise that the sort of evidence had been accepted in the past and corroboration though that afforded. This is not this type of case. Mainly due to lack of unity of nature, place and time. The charges are similar, however, the similarity too vague to afford corroboration.

adequately corroborated evidence

There is no hard and fast rule about this matter and each case does, as the advocate depute says, depend upon its own facts… We have come to be of the view that despite the length of time involved in this case there is sufficient coherence in character and circumstance to allow the application of the Moorov doctrine despite the fact that a substantial time has passed between the two offences.’ Turner v Scott 1996

That being so, since there was no other basis of corroboration in this case, there was insufficient evidence against the accused on each of the charges. We shall accordingly allow the appeal and quash the convictions.’ Bargon v HMA 1997

‘In the nature of things it would be very rare to find any specific corroboration of any specific element in the modus of the crime of rape committed in a secret place, and in this case the jury were quite entitled to bring in a verdict of guilty as libelled.’ Yates v HMA, 1977, Per LJ-G Emslie

It is not that such evidence should not be allowed without bearing or weight, but because, but limit needs to be established to the scope of proof as the rule has been adopted in the past that enquiry into collateral issues is not permissible

Isolated incidents

MOOROV

In relation to the second ground, I do consider the discrepancy to be material between the 3 events.

‘There are similarities between the charges. The respondent is the same; but that is a condition sine qua non for the application of the doctrine… From the various authorities quoted to me it did, however, seem clear that the use of the Moorov principle is confined to those cases in which there is or may be a sufficient link between the separate incidents to entitle the court to regard each incident as one manifestation of a common or connected course or pattern of conduct.

From a perusal of the evidence I am forced to the conclusion that at best it cannot be argued that the evidence discloses some particular and ascertained unity of intent, project, campaign or adventure which lies behind or beyond -- but is related to the separate acts. There is no nexus, which binds the alleged crimes together. They are independent and unrelated.’ Tudhope v Hazelton 1984

The issue, which is before us, is a very narrow one about the gap in time. As we have said, there was a proper starting point in the evidence of two credible witnesses for the application of the Moorov doctrine, and that has not been disputed. It has not been suggested that in his discussion of the doctrine and his analysis of his approach the sheriff misdirected himself in any way. The question is whether the gap in time is so wide that, despite the close similarity to be found in the other circumstances, Coffey v Houston 1992 

Coherence of the circumstances of the offence

Confession

Cadder. Pre lawyer advice at the police station cannot be taken. Into account as not admissible. Right to have intimation of above sent to solicitor (s 15A(2)) and “a private consultation with a solicitor before any questioning begins” or “at any other time during such questioning (s15A(3)), 14, 14a, 14b, 15

My client comments on previous convictions inadmissible due to HR art 6 right to a fair trial. Confessions, and ‘special knowledge confessions’ (Cadder; Manuel)

Conclusion

It is not for the Defense to prove their innocence.

It must therefore follow that if, after the conclusion of the Prosecution's case, there is insufficient evidence on which a court properly directed could convict, that the case should be brought to an end at that stage.

REASONABLE DOUBT

I would like to highlight that evidence need to prove the charge beyond reasonable doubt. Until that my client is to be presumed innocent. Evidence lead by prosecution is insufficient in law to successfully charge my client.