APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: C285/98
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
COLIN TURNBULL REID
HER MAJESTY'S ADVOCATE
Appellant: Shaffer, Q.C.; Watson & Mackay
Respondent: Doherty Q.C., A.D.; Crown Agent
9 July 1999
On 29 April 1998 the appellant was found guilty of two charges of lewd, indecent and libidinous practices and behaviour. The first charge related to his conduct towards a girl on various occasions between 8 June 1992 and 12 October 1996, when she was 4-8 years of age. The second charge related to his conduct towards her younger sister on various occasions between 1 January 1995 and 12 October 1996 when she was 2-4 years of age.
Each of the girls gave evidence as to what was alleged in her case. In the case of the younger sister, this was that he had inserted his finger into her private parts and masturbated in her presence to the emission of semen. In the case of the older girl, it was alleged that he had induced her to handle his private member and masturbate him to the emission of semen, and threatened her with violence if she disclosed his behaviour to others. The sole basis on which the Crown sought corroboration of the evidence of each of the girls was on the basis of the principle expounded in Moorov v. H.M. Advocate 1930 JC 68.
The ground of appeal against conviction is that the trial judge misdirected the jury. No criticism is made of his directions in regard to corroboration on the Moorov principle. He warned the jury that the case was particularly narrow because there were only two children involved. If one of them was disbelieved there could be no corroboration of the evidence of the other. He continued:
"It is as simple or as complicated as this, ladies and gentlemen. Unless you accept as credible, reliable and accurate and have no reasonable doubt about the evidence of both the children, the accused must be acquitted. If one of them is not believed, or if there's a reasonable doubt, then the whole case goes. And, of course, it follows from that, however, that this case must, I venture to say to you, result either in a conviction of all of the charge, both charges, or an acquittal of all of the charges, there is no room for convicting of one charge and not the other charge, it's all or nothing".
For the appellant Mr. Shaffer stated that his objection to that passage related to the closing words in which the trial judge had directed the jury that they could not convict the appellant of only one of the charges. He submitted that the trial judge had withdrawn from the jury the right and duty to consider each of the two charges separately. Thus the jury might have been convinced by the evidence given by one of the girls but not so convinced by the other. There was no reason why they should not be able to take from the latter enough to provide corroboration for the evidence of the former without having to convict in the case of the latter also. In other words the jury could treat one of the girls as providing corroboration of the evidence of the other but could regard her evidence about what happened to her as not sufficiently convincing to justify conviction on the charge to which she spoke directly. In the present case the jury might well have had reservations about the evidence given by the younger girl who was close to her mother and whose evidence was not as firm as that of her sister.
In support of his submissions Mr. Shaffer referred to a passage in the charge which was given to the jury by Lord Blackburn in H.M. Advocate v. M'Donald 1928 J.C. 42 at page 44. That was a case in which the accused faced six charges relating to separate occasions of incest and indecency by the accused in regard to one of his daughters and a seventh charge of indecency towards another daughter on various occasions. In that case, which pre-dated the decision in Moorov, Lord Blackburn said:
"I cannot hold that a jury is not entitled in a case of this sort to take into consideration the evidence of one child as to her experience as sufficient corroboration of the evidence of another child as to her similar experience, and to record a verdict of guilty against the panel on either or both of the charges. Accordingly, my charge to you is that in this case there is sufficient corroboration of each child's story in the story of the other - if on consideration of the evidence you believe their stories - to entitle you to find the panel guilty of one or all of the charges made against him".
Mr. Shaffer submitted that this charge commanded considerable respect in view of the way in which it had been approved in Moorov by the Lord Justice General (Clyde) at page 75 and the Lord Justice Clerk (Alness) at page 81. Any departure from it required to be justified. Mr. Shaffer sought to derive support for his submission from the remarks of the court in Percy v. H.M. Advocate 1998 S.L.T. 333. The appeal in that case was based on the fact that, when seeking further direction from the sheriff in a case where the Crown relied on the Moorov principle, one of the jurors indicated that the jury had had a difficulty in their deliberations because they did not have a majority of eight for any verdict, but that that difficulty had been resolved in respect of one of the charges, leaving two to be considered. The contention for the appellant, which was unsuccessful, was that the jury should be taken as having convicted without considering the evidence of the corroborating complainer on each charge. In the course of their opinion, which was delivered by Lord Sutherland, the court said:
"The problem is, however, that juries are invariably directed that they must consider each charge separately. The obvious course for a jury to take in their deliberations would be to consider the credibility and reliability of both the complainers and, when they have reached a conclusion on that matter, turn to consider each charge separately and decide whether the facts libelled in that charge have been established, whether there is sufficient evidence, and whether any aspect of the defence causes them to have a reasonable doubt".
This, Mr. Shaffer submitted, provided a demonstration of the approach which the trial judge should have left it open to the jury to take in the present case. He also founded on the most recent authority in the law of corroboration which was to be found in Fox v. H.M. Advocate 1998 S.C.C.R. 115. He referred in particular to a passage in the opinion of the Lord Justice General at page 126D:
"While evidence can provide corroboration only if it is independent of the direct evidence which it is to corroborate, the evidence is properly described as being corroborative because of its relation to the direct evidence: it is corroborative because it confirms or supports the direct evidence. The starting-point is the direct evidence. So long as the circumstantial evidence is independent and confirms or supports the direct evidence on the crucial fact, it provides corroboration and the requirements of legal proof are met".
He also referred to the passage in the opinion of the Lord Justice Clerk at page 135 in regard to the assessment of the corroborative effect of circumstantial evidence. In the present case the trial judge should have directed the jury that it was open to them, in considering each charge separately, to deliver a verdict of guilty in respect of one of them only.
The short answer to Mr. Shaffer's submissions is that at the trial the prosecution and the defence approached the case on the basis that, in the words of the trial judge, it was "all or nothing". Neither party argued for a different result in respect of either of the charges. Mr. Shaffer pointed out in the course of his submissions that there was some evidence given by the younger girl in regard to a particular occasion which could have been regarded as providing eye-witness corroboration to her sister's evidence as to the appellant's conduct towards her. However, this was not an issue which was taken up at the trial. The Crown case depended on the application of the Moorov principle and was presented exclusively on the basis that conviction on both charges was sought. In these circumstances, whatever else may be said about Mr. Shaffer's submission, it does not correspond to any issue which either of the parties sought to put before the jury. In these circumstances there was no reason why the trial judge should invite the jury to consider this as a possible outcome of their deliberations.
However, in view of the general importance of the point raised by Mr. Shaffer, we should go further into the merits of the argument which he presented. At the outset it is instructive to consider a passage in the opinion of the Lord Justice General in Moorov at page 73. He there stated:
"In the present case there is direct evidence in support of the factum probandum as regards each charge which the jury found proved. But the evidence is that of a single credible witness only to each charge. Corroboration is sought from the circumstance that the charges thus supported are numerous and of the same kind, and the question is whether the case is one in which resort may legitimately be had to corroboration derived from this circumstance.
It is beyond doubt, in the law of Scotland, that corroboration may be found in this way, provided that the similar charges are sufficiently connected with, or related to, each other - Hume on Crimes volume ii page 384; Alison's Criminal Law, volume ii, page 552. But what is the test of sufficiency? The test I think is whether the evidence of the single witnesses as a whole - although each of them speaks to a different charge - leads by necessary inference to the establishment of some circumstance or state of fact underlying and connecting the several charges, which, if it had been independently established, would have afforded corroboration of the evidence given by the single witnesses in support of the separate charges. If such a circumstance or state of fact was actually established by independent evidence, it would not occur to anyone to doubt that it might be properly used to corroborate the evidence of each single witness. The case is the same, when such a circumstance is established by an inference necessarily arising on the evidence of the single witnesses, as a whole. The only difference is that the drawing of such an inference is apt to be a much more difficult and delicate affair than the consideration of independent evidence. No merely superficial connexion in time, character, and circumstance between the repeated acts - important as these factors are - will satisfy the test I have endeavoured to formulate. Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character or circumstance) must be such as to exhibit them as subordinates to some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind - but is related to - the separate acts. The existence of such an underlying unity, comprehending and governing the separate acts, provides the necessary connecting link between them, and becomes a circumstance in which corroboration of the evidence of the single witnesses in support of the separate acts may be found - whether the existence of such underlying unity is established by independent evidence, or by necessary inference from the evidence of the single witnesses themselves, regarded as a whole".
That passage enables one to compare corroboration in the type of case with which the decision in Fox v. H.M. Advocate was concerned, with corroboration on the basis of the Moorov principle. In the former case the jury require to consider whether the evidence of circumstances spoken to by one or more other witnesses corroborates the evidence of a primary witness. In the latter case the question is whether the direct evidence of the complainers, when taken as a whole, leads to the necessary inference that the criminal acts to which they have spoken are inter-connected or united in the way described by the Lord Justice General. It is only if this is so, and it is only in this sense, that the evidence of each of the complainers may be said to provide circumstantial corroboration to evidence given by the other or others. The evidence given by one complainer, in so far as it consists solely of evidence as to the accused's conduct towards her, cannot provide circumstantial corroboration in the way described in Fox v. H.M. Advocate. If it is of significance for the purposes of corroboration, that can only be if the conditions for the application of the Moorov principle are satisfied. The starting point, as the Lord Justice General made clear, is that there is direct evidence from the complainers as to the factum probandum in each of the charges which is held to be credible and, of course reliable. Even then there can be corroboration only if the jury decide that the separate acts spoken to directly by each of the complainers form parts of a course of criminal conduct systematically pursued by the accused.
It follows inevitably that there would have been a logical contradiction if the jury in the present case had convicted the appellant in respect of one of the charges and acquitted him in respect of the other. A direction to the jury that it was open to them to do so would have been a misdirection. Accordingly, in so far as Lord Blackburn in H.M. Advocate v. M'Donald directed the jury to the contrary, he was in error. In passing we note that in Ainsworth v. H.M. Advocate 1996 S.C.C.R. 631, to which we were also referred, it was a matter of concession by the Crown that a jury verdict in respect of only one of a number of charges, in a case in which the Crown relied exclusively on the Moorov principle for corroboration, could not stand.
While these are our views in regard to the scope for a jury acquitting or convicting the accused in respect of two or more charges where corroboration depends on the application of the Moorov principle, we should not be understood as saying that it would not be open to the jury to delete part of a charge or charges in the light of the view which they have formed as to the credibility and reliability of the individual complainer or complainers. There is no reason why they could not take the view that, while they were prepared to hold that part of the evidence given by one of them was credible and reliable, and on that basis hold that this, taken along with the evidence given by other complainers, provided the necessary inference of connection or unity and hence mutual corroboration, they rejected another part of that complainer's evidence. The court in Percy may have had this in mind. However, that is not the point in dispute in the present appeal, which is whether, consistently with the application by them of the Moorov principle, the jury could acquit on one charge while convicting on the other.
In these circumstances we consider that the appeal is not well-founded. Accordingly it will be refused.