Scottish High Court of Justiciary Decisons

ALEXANDER THOMAS WILSON v. HER MAJESTY'S ADVOCATE [2001] ScotHC 25 (4th May, 2001)

[1] The appellant was convicted on 12 January 2000 of two charges of theft contained in one indictment and was sentenced to 33 months imprisonment. The first charge was that on 22 June 1999 he entered a house, then occupied by Margaret Binnie Baggs, aged 76 years, and stole a bag, a purse and £472 or thereby of money, a bus pass and a card. The second charge was that on 6 September 1999 at a house occupied by Elizabeth McGuire, aged 63, he stole a camera.

[2] The evidence in relation to the first charge is set out in detail in the sheriff's report but it is not necessary for the purposes of the appeal to repeat it. It might have been arguable that the evidence relating to the first charge was sufficient by itself to entitle the jury to convict on that charge. However, in presenting the case to the jury, the Crown relied entirely on mutual corroboration between the evidence on the first charge and that on the second, and on the principle explained in Moorov v. H.M. Advocate 1930 JC 68, and did not seek to argue that the evidence on the first charge was sufficient by itself to entitle the jury to convict. In the course of the appeal, the advocate depute accepted that it was not open to him to depart from that position.

[3] The argument for the appellant was that the evidence in relation to the second charge was not sufficient to establish the commission of a crime and that it followed that, since the Crown were relying on the Moorov doctrine, the convictions on both charges must be quashed. This argument had been presented to the sheriff in the form of a no case to answer submission.

[4] The argument was presented under two heads. The first was that the evidence of the complainer, Elizabeth McGuire, was not evidence of the theft of a camera and that the jury were not entitled to treat it as such. To enable this submission to be considered, a transcript of Mrs. McGuire's evidence was obtained and we have had the opportunity to study it. What Mrs. McGuire said was that the appellant came to her door, under the pretence of being an employee of the local authority, thrust his way in and made his way to an upstairs room. Mrs. McGuire followed him and saw him apparently taking an article and wrapping it in a jacket. She gave quite clear evidence that an article of some kind had been taken. She was much less certain as to what that article was. She was questioned at some length and we do not think it is necessary to rehearse precisely what she said in answer to the various questions put. It is true that she displayed some uncertainty as to what the article was and that part, at least, of her reason for thinking that it was a camera was that she understood that the camera should have been there and that it had not been found since the incident. She conceded that other articles had been moved within her house because some redecoration was being carried out and that it was possible that the camera might have been misplaced and might still be found. Nevertheless, she gave positive evidence that an article had been taken and, although less positively, she did give evidence that she thought it was a camera. It was for the jury to judge what her evidence amounted to and, in our opinion, there was sufficient material in her answers to entitle the jury to accept her evidence as reliable evidence that a camera had been stolen.

[5] The second head of the argument was that there was no corroboration from any source that a camera, or indeed any article, had been stolen. It was submitted that in the absence of such corroboration the jury could not hold that the evidence in relation to the second charge amounted to evidence of the commission of a crime and therefore could not hold that it corroborated the evidence in relation to the first charge, under the Moorov doctrine. It was submitted, under reference to McDonald v. Heron 1966 S.L.T. 61 and, particularly, Carson v. McGlennan 2000 S.C.C.R. 631 that corroborated evidence as to the identity of the article stolen was necessary. That had been conceded by the Crown in Carson supra. There might be cases in which a person could properly be convicted of theft of a quantity of goods or a sum of money, although the precise quantity or amount, or even the precise nature of the goods, could not be established. However, the theft of a matchbox was not the same as the theft of a diamond necklace and, at least as a matter of specification, it was necessary to corroborate the evidence as to what the item alleged to have been stolen was. In answer to that submission, the advocate depute submitted that precise corroboration of the nature of the article stolen was not necessary in a case in which the Crown was relying on the Moorov doctrine.

[6] The general position in relation to proof of theft is stated in Walkers' Evidence (ed. Ross) at paragraph 5.4.7 as follows:

[7] In Carson supra the Crown conceded that it was necessary that there should be corroborated evidence to identify the article stolen. In this case, the Crown did not attempt to argue that the concession in Carson was not correctly made, and the appropriate course therefore seems to me to be to assume that it was correct. A question may remain as to precisely what degree of specification of the article stolen is required, but that is likely to depend on the individual circumstances of the case. I do not think that it is appropriate to pursue that question further because it seems to me that the question in this case is somewhat different.

[8] In a case in which the Crown seek to prove a number of charges by relying on the principles set out in Moorov supra, they are setting out to establish that there has been a course of criminal conduct of which individual incidents, each spoken to by a single witness, are instances. In the common case of a series of sexual offences, the witnesses may be held to corroborate one another even though each of them is the only witness who speaks to the commission of any crime at all on the particular occasion about which he or she gives evidence. It is accepted that the Moorov principle is not confined to sexual or other clandestine offences. If it can be applied to theft, I see no reason why witnesses speaking to different incidents should not be held capable of corroborating one another, even if each of them is the only witness to the completed act of theft on the occasion to which his or her evidence relates. Thus, if one shopkeeper speaks to a theft by the accused of a packet of cigarettes: a second speaks to a theft of a bottle of lemonade: and a third to a theft of a packet of sandwiches, then, provided the other conditions for the application of the principle are present, it seems to me that the evidence of the witnesses may be held mutually corroborative and establish the three thefts, even though there is no other evidence of the commission or completion of any of them. To say that is not to say that the nature or identity of the goods stolen does not require corroboration. It is to say that the corroboration required for that essential element in the charge is supplied by the application of the Moorov principle. I can see that it might be suggested that, in such a case, what has really been proved is a series of thefts of items of small value. However, under the ordinary rules of fair notice, each charge would require to specify the item allegedly stolen, so far as possible, and it would be unduly technical, in my view, to require some amendment to be made in convicting the accused.

[9] The Moorov principle cannot, of course, apply unless there is sufficient similarity between the circumstances of the individual incidents, including the description of the articles said to have been stolen. It would, therefore, probably not apply where the witnesses spoke to thefts of, respectively, a diamond necklace, a sail board and a bar of chocolate, whatever the other circumstances might be. It follows that the Moorov principle can most easily be applied where the articles stolen can be said to fall into a single category, such as items of food or sums of money, or under some similar description. I would, however, be reluctant to try to derive some precise risk or requirement from that broad observation. It seems to me that, as with the other conditions for the application of the Moorov principle, that is, a reasonable coincidence in time, character and circumstances, it is necessary to consider the particular facts. It seems to me to be possible that there could be sufficient similarity in regard to time, method of operation and other circumstances to justify application of the principle, even where there is some diversity between the articles stolen.

[10] In the present case, the similarities between the incidents relied on by the Crown were that both involved elderly or ageing complainers, that in both the perpetrator represented himself as a workman or local authority representative, that in both the perpetrator thrust his way into the house and removed property, taking advantage of the complainer's disability. Furthermore, both thefts were opportunistic in the sense that the thief simply seized an article of value which happened to be accessible to him. In my view, there were sufficient similarities between the two episodes to enable the Crown to rely on the Moorov doctrine. There were only two incidents, but two instances can be sufficient to enable an inference as to a course of conduct to be drawn. In these circumstances, in my view, the precise identity of the article which is the subject of the second charge was not something which required separate corroboration. The question in the case was whether the evidence of one complainer as to the removal of a camera could be taken to corroborate the evidence on the other charge, and vice versa. In my opinion, there was sufficient evidence to entitle the jury to convict and the appeal against conviction should be refused.