APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
OPINION OF THE COURT
THE LORD JUSTICE GENERAL
NOTE OF APPEAL AGAINST CONVICTION
DAVID JAMES REID
HER MAJESTY'S ADVOCATE
Appellant, C Shead, Stirling Eunson & Ferguson
Respondent, Doherty, QC, Crown Agent
5th May 1999
This is the appeal of David James Reid who went to trial at the High Court at Edinburgh on an indictment containing three charges, charge 1 being a charge of attempted rape, charges 2 and 3 being charges of rape. He was convicted of all three charges, the second under deletion of averments to the effect that he raped the complainer a second time on the occasion in question. The appellant was sentenced to a cumulo sentence of 10 years imprisonment. He has appealed against his conviction on charges 1 and 2 on the ground that there was no case to answer on those charges and that the trial judge erred in refusing a submission to that effect. In seeking a conviction on charges 1 and 2 the Crown relied on the Moorov doctrine whereas there was sufficient evidence in relation to charge 3 viewed in isolation to entitle the jury to convict of that charge independently. It is for that reason that the appellant does not challenge his conviction on that charge.
It is a slightly unusual feature of this case that the complainer in charge 1 is also the complainer in charge 3. It follows that whereas, if Moorov applies, the jury would be entitled to find corroboration of the evidence of the complainer in charge 2 in the evidence given by the other complainer, either in respect of charge 1 or charge 3, in order to convict the appellant of charge 1 the jury could rely only on the evidence of the complainer on charge 2. It was accepted in the Court below - and the point was not challenged before us - that the fact that charge 1 was a charge of attempted rape whereas charge 2 was a charge of actual rape, would not in itself prevent the Moorov rule from applying. We should add that the trial judge gave the jury directions on the approach which they should adopt in determining whether the evidence of the complainers could provide mutual corroboration. In particular he stressed that it was essential that they should find a unity of approach by the appellant and that they had to be satisfied that the separate acts were simply a manifestation of a single course of conduct by reason of their close inter-connection in terms of time, place and circumstances. Mr Shead made no criticism of the directions which the trial judge gave and indeed we are satisfied that no criticism could be made of them. The only question therefore is whether the jury were entitled, when properly directed, to find the necessary inter-connection.
It is not necessary to rehearse the evidence in detail. So far as the time element is concerned, charge 1 related to alleged conduct in June 1997, charge 2 to alleged conduct in December 1997 and charge 3 to conduct in March 1998. There was therefore an interval of approximately five or six months between the incidents in charges 1 and 2 and an interval of approximately three months between the incidents in charges 2 and 3. So far as the element of place is concerned, in all the charges the locus is the appellant's house in Rosyth. Mr Shead submitted that, even having regard to the intervals of time and the identity of locus, the circumstances of the incidents were sufficiently different that it was not open to the jury to find them inter-connected in such a way for them to be able to infer the necessary underlying single course of conduct by the appellant.
In reviewing the elements of the conduct, counsel drew attention to the fact that the complainer in charges 1 and 3 was only 17 years of age and that she had been previously known to the appellant, whereas the complainer in charge 2 was a woman of about 40 whom he had met on only one previous occasion. Mr Shead pointed out that the incident in charge 2 was preceded by the complainer who was drunk being persuaded by a friend to go to the appellant's house after an evening in a public house, whereas there was no similar element in either charge 1 or charge 3 - indeed the surrounding circumstances in charge 3 were strikingly different. In the case of charge 2 the conduct in question had taken place when there was another person, Mr Thomson, in the house whereas there was nobody else present when the conduct in the other charges took place. Some reference was also made in the court below -and the Advocate Depute in the appeal mentioned this - to the fact that in charge 2 the assailant was said to have used a dildo or vibrator whereas that element did not feature in the evidence relating to either of the other charges.
The Advocate Depute accepted that there were indeed differences among the various incidents, but he drew attention to what he said were similarities, even leaving aside the question of time and place. He pointed out that the incidents all occurred late at night or in the early hours of the morning. That particular factor does not appear to us to be particularly significant since many such incidents occur at that time of day. The Advocate Depute pointed out that another common factor between charges 1 and 2 was that the complainer's clothing had been pulled off. Again, that is not a factor to which we would attribute particular importance since it is a very common feature of attacks of this kind. The Advocate Depute submitted that it was significant that the appellant had demanded oral sex, according to the evidence of the complainer, in both charges 2 and 3. He pointed out that the appellant had had difficulty in achieving an erection and had sought to overcome that difficulty by slapping or degrading the complainer, according to the evidence of the complainers in charges 1 and 2. Mr Shead accepted that there was this common element of the appellant having difficulty in achieving an erection, but pointed out that, according to the evidence, in the one case he had sought to resolve this by slapping the complainer and in the other he had heaped verbal abuse on her. The Advocate Depute drew attention, however, to the fact that in both charges 1 and 2 the appellant was said to have masturbated in the presence of the complainers. He submitted that, taken together, the similarities were such as to entitle a jury to draw the necessary inference.
Mr Shead accepted that the judge had been guided by the decision of this Court in the case of Reynolds v Her Majesty's Advocate 1995 S.C.C.R. 504 and in particular he had regard to the passage at page 508 where the Court points out that cases of this kind, while they must be approached with the care, raise questions of fact and degree, and there has to be a process of evaluation precisely because there are similarities as well as dissimilarities. His submission, put shortly, was that this was a case where the jury were not entitled to be satisfied that there was the necessary connexion between the two offences. Putting the matter in another way under reference to what was said by the Lord Justice Clerk in Ogg v HM Advocate 1938 J.C.152 at page 158, Mr Shead submitted that in this case the evidence went no further than showing that the appellant had a general disposition to commit this kind of offence; that should not be regarded as providing the necessary corroboration.
It is clear that the trial judge considered the matter carefully and reached the view that this was a case where it was open to the jury to draw the necessary connexion between the alleged offences. It is perhaps a narrow case, but we are satisfied that, taking account of the intervals of time and the identity of the locus, and particularly having regard to the evidence about the appellant having difficulty in achieving an erection and masturbating in the presence of the complainers, it would be open to the jury to draw the necessary inference of an underlying course of conduct. In those circumstances the judge was right to reject the submission of no case to answer. The appeal must accordingly be refused.