Scottish High Court of Justiciary Decisons

Dodds v. Her Majesty's Advocate [2002] ScotHC 96 (17 July 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	Appeal No: C46/00 OPINION OF THE LORD JUSTICE CLERK in APPEAL by BRIAN DODDS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: M. Moir; Gordon McBain & Co.

Respondent: Batchelor, QC, AD; Crown Agent

17 July 2002

1. I agree with the Opinion that is to be delivered by Lord Osborne. In view of the unusual nature of this case, and its possible implications for the development of the Moorov doctrine (Moorov v. HM Adv, 1930 JC 68), I wish to add a few comments of my own.
2. We have not been referred to the evidence against the appellant on the three charges of which he was acquitted. We cannot therefore assess the overall picture that the Crown evidence brought out on all seven charges against him that went to the jury. At the conclusion of the Crown case counsel for the appellant did not make a submission of no case to answer. The jury had therefore to return separate verdicts on all seven charges. Our consideration has been confined to the evidence on the charges of which the appellant was convicted.
3. Counsel for the appellant submitted that the trial judge should have directed the jury, if they were minded to acquit the appellant on one or more of the charges, how to apply the Moorov doctrine in relation to the others. Such directions would have dealt with the sufficiency of the evidence against the appellant on the other charges, as a group or in various combinations, from the point of view of similarity in time, manner and circumstances.
4. In my opinion, there was no need for such a direction. On the contrary, I think that the idea that the trial judge should have attempted to direct the jury on all possible permutations of verdict on those charges is unreasonable. To have attempted to do so, even in outline, would have required a direction of such complexity as to leave the jury bewildered.
5. In my view, the trial judge took the appropriate course in simply giving the jury general directions on the meaning and application of the Moorov doctrine. Those directions were concise and accurate and, in my view, were expressed in a way that gave the jury helpful guidance on the approach that they should take. Those directions cannot be faulted.
6. Nevertheless, the terms of the verdict create a problem. The jury convicted on only four charges. Since the entire Crown case was founded on the Moorov doctrine, a question arises whether the evidence on those charges, whether they were looked at as a single group or in two or more groups, brought out sufficient similarities to justify the convictions.
7. An appeal court is entitled to make a judgment on the evidence as to whether the similarities in the circumstances and manner of commission of any two crimes justify the application of the Moorov doctrine, having regard to the interval of time by which they are separated. In my opinion, these verdicts cannot be justified by the application of the Moorov doctrine.
8. When one looks at the circumstances and manner of commission of the offences that Lord Osborne has described, it is plain that the only material similarities between all or any two of them were that each involved the crime of rape and that each took place in the same area of Edinburgh. That was plainly insufficient.
9. Moreover, to the extent that there were the other similarities to which Lord Osborne refers, there was in my view an insufficient nexus of time. The extent of the period of time within which a Moorov similarity can be applied is not and cannot be fixed by rule of law. If the circumstances of the commission of two crimes are of particularly unusual similarity, it may be that corroboration can be found to exist even if the charges are separated by a long period of time. Lord Sands specifically canvassed such a case in Moorov (supra, at p. 88) in his well-known George Bernard Shaw example.
10. Counsel for the appellant accepted that if the evidence on charges 10 and 15 had shown sufficient similarities in the manner of commission, there could have been a sufficient relationship in time for the Moorov doctrine to apply. Beyond that, however, I consider that even if the similarities relied on by the Crown, such as they were, had provided a sufficient starting point for a consideration of the doctrine, the intervals of time in the circumstances of this case would have been too long to justify its being applied.
11. Since we are agreed that a miscarriage of justice has occurred, I propose that we should allow the appeal and set aside the convictions.
Dodds v. Her Majesty's Advocate [2002] ScotHC 96 (17 July 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	Appeal No: C46/00 OPINION OF LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION by BRIAN DODDS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: M. Moir; Gordon McBain & Co.

Respondent: D. Batchelor, Q.C., A.D.; Crown Agent

17 July 2002

12. The appellant, Brian Dodds, along with three other persons, was indicted on a number of charges. Charges 1, 2, 4, 7, 10, 13 and 15 were directed against the appellant. Those charges were of assault and rape involving seven different women. After trial, the appellant was found guilty on charges 1, 2, 10, with modifications, and 15, by majority verdicts. Charges 4, 7 and 13 were found not proven. The charges on which the appellant was convicted were in the following terms:

"(1) on two occasions between 22 August 1969 and 25 July 1970, both dates inclusive, at [address] and at [address], both Edinburgh you BRIAN DODDS did assault [L.D.], born 26 July 1955, c/o Lothian and Borders Police, Edinburgh chase after her, seize hold of her, push her to the ground, forcibly remove her lower clothing, lie on top of her, place your hand over her mouth and rape her, all to her injury;

(2) between 29 June 1972 and 26 February 1973, both dates inclusive, at [address], Edinburgh you BRIAN DODDS did assault [A.P.], then residing there, now c/o Lothian and Borders Police, Edinburgh, bodily pick her up, struggle with her, carry her to a bedroom there, throw her onto a bed, forcibly remove her lower clothing, lie on top of her and rape her;

...

(10) on one occasion between 18 July 1977 and 18 October 1977 or 18 February 1978 and 30 November 1979, all dates inclusive, at [address], Edinburgh you BRIAN DODDS did assault [T.M.], then residing there, now c/o Lothian and Borders Police, Edinburgh pull her onto a bed there, forcibly remove her clothing, lie on top of her, threaten to kill her, seize her by the arm and twist same, pull her by the hair and rape her;

...

(15) between 19 February 1978 and 31 August 1978, both dates inclusive, at a house in [area], Edinburgh, the exact location of which is to the Prosecutor unknown, you BRIAN DODDS did assault [A.M.], born 19 February 1962, c/o Lothian and Borders Police, Edinburgh, kiss her on the mouth, push her onto a bed, forcibly remove her lower clothing, lie on top of her, strike her on the face and repeatedly rape her, to her injury".

Following conviction, reports were ordered in relation to the appellant. Subsequently on 10 January 2000 a sentence of imprisonment of 11 years duration was imposed upon him, which was ordered to run from 25 February 1999. Thereafter the appellant appealed against his conviction and sentence. The grounds of appeal which are now alive before this court are those dated 2 July 2001, in which all of the convictions recorded against the appellant are attacked on the seven grounds stated therein.

13. At the outset of the appeal hearing, counsel for the appellant said that, in due course, a new ground of appeal might be tabled relating to fresh evidence which had not been available at the trial. He described this material and explained why it had not been available for use then. However, beyond giving notice of the existence of this material and the issue to which it might give rise, he wished to say no more about the matter at that stage.
14. Turning to the appeal itself, based on the existing grounds of appeal, it was indicated that it involved the application of the Moorov doctrine to the facts of this case. The submission which was to be advanced for the appellant was that the circumstances of the offences of which the appellant had been convicted did not show the necessary unity of purpose for the application of the doctrine. Furthermore, it was to be submitted that the time lapses between certain of those offences were too long to have justified the application of the doctrine. In this latter connection, counsel for the appellant pointed out that the latest date to which charge 2 could relate was 26 February 1973, while the earliest date to which charge 10 could relate was 18 July 1977. It would be submitted for the appellant that the law appeared to recognise 3 or 4 years as an absolute maximum gap of time to enable the doctrine to be applied. In this connection, having referred to Moorov v. H.M. Advocate 1930 JC 68, page 73, counsel for the appellant drew attention to Russell v. H.M. Advocate 1990 S.C.C.R. 18. He pointed out that, in that case, although the court recognised that no hard and fast rule could be laid down as to time, no case had been cited in which there had been an interval of 3 years or more between two similar offences, where the doctrine had been applied. However, it was not contended that the period of 3 years was set in stone.
15. Turning to the particular circumstances of this case, counsel for the appellant submitted that evidence relating to the two pairs of charges 1 and 2, and 10 and 15 could not be used for the purpose of mutual corroboration under the doctrine, because first, the time lapse involved was too great and, secondly, because the circumstances of the offences themselves were materially different. The appellant's contention was that it was entirely possible that evidence relating to these pairs of charges had been used in that way, in the light of the terms of the trial judge's charge to the jury. Looking at charge 1, L.D. had been 14 years of age at the material time. A.M., the complainer in charge 15 had been 16 years old at the material time. A.P. the complainer in charge 2, had however been 28 years of age then and T.M., the complainer in charge 10 had been in her mid 20's, with two children. Looking at these particular circumstances, it was contended that there had been a greater similarity between the facts of charges 1 and 15 than between those of charges 1 and 2. In any event, it was submitted that the jury could not properly have applied evidence from charges 1 and 2 to charges 10 and 15. It was also contended that the time gap between the events of charges 1 and 2 was too great to entitle the jury to apply the doctrine of mutual corroboration between these charges. As between charges 10 and 15, there was greater difficulty in making a similar submission, which accordingly was not made. In connection with these submissions reliance was placed upon Tudhope v. Hazelton 1984 S.C.C.R. 455, a case concerned with two alleged assaults in a police station, the dates involved being May 1981 and August 1982. It had been held that, in the circumstances, the gap in time of one year and three months made it impossible to accept that the two alleged assaults formed part of a regular course of criminal conduct and that the underlying nexus required for the application of the Moorov doctrine was therefore absent.
16. Turning to the trial judge's charge, counsel for the appellant drew attention to the historical nature of the case, to which attention had been drawn at page 15A-F of the transcript. Against that background, the evidence had not been so specific as to enable precise identification of the dates of the alleged offences to be made. Looking at the point raised in ground of appeal 3, it appeared that, in relation to charges 1 and 2, the greatest gap of time involved might have been as long as 3 years 6 months, that is to say the period between 22 August 1969 and 26 February 1973. The minimum period was 23 months. It was contended that the further back in time the dates attached to the charges were, the more tightly the Moorov doctrine ought to be interpreted. In particular, the appellant ought to be given the "benefit" of the consequences of the maximum latitude between the charges involved. In other words, a trial judge's directions to the jury ought to be different when dealing with "antique charges", as opposed to charges of a more recent origin. These matters had been the subject of comment by the editor of the report in Russell v. H.M. Advocate. In response to questions by the court, counsel for the appellant recognised that the difficulty he outlined was more a consequence of the latitude taken by the Crown in particular charges than of the antiquity of those charges, although the precision, or lack of it, as to dates of the evidence was also important.
17. The submissions for the appellant continued with a reference to Ogg v. H.M. Advocate 1938 J.C. 152, at pages 154, 158 and 159. What had been said by Lord Justice Clerk Aitchison at page 158 showed that where the intervals of time between the offences were substantial, great caution had to be exercised in the application of the doctrine. In the circumstances of the present case, it might be that a direction exhorting the jury to exercise great caution should have been given.
18. Counsel for the appellant then directed our attention to the relevant parts of the evidence which had been transcribed, with a view to highlighting the differences between the particular offences involved. Dealing first with the offence to which charge 1 related, he pointed out that the complainer, L.D., who had been born on 26 July 1955, had been 41/2 years younger than the appellant at the material time. They had later had a relationship akin to marriage. In this connection reference was made to her evidence in transcript 13A at pages 7 to 14, 17, 18 and 20. Thus what had been involved was a man walking a woman home in a street at night. She had been dragged into a garden and a nursery where the two rapes had occurred out of doors on open ground. The woman had not shouted for help, since no-one else had been present. At the material time both participants had been living in the same house, where the woman's mother lived, along with the appellant, as appeared from page 26 of the transcript. These two offences were similar, but differed from the offence to which charge 2 related. Turning to the circumstances of that offence, A.P. was a woman who had been married and divorced at the material time. She had had marital problems. By 1971 she had been back with her husband. The problems were dated before 1970, as appeared from the transcript 13B at pages 171, 173 and 186. The appellant and L.D. had come to stay with the woman, who suffered from cerebral palsy. The appellant and one Brian Munro had been admitted to the house; the latter had been present at the rape, as appeared from pages 180-184. The woman had been picked up and placed on a bed where she had been raped. A child and Munro had been present. It was submitted that the circumstances of the offences to which charges 1 and 2 related were so markedly different that they could not be used for mutual corroboration under the doctrine. It was however recognised that the locations involved were close by, both being within the same district of Edinburgh. L.D. had not been vulnerable at the time of the incidents, although she had run away from home thereafter when she may have become vulnerable, as appeared from page 49 of the relevant transcript. A.P. had told her husband the next day about the incident, as appeared from page 188 of it. The incident had been reported to the police. The precise date of it had not been elicited in evidence, as appeared from page 180. By contrast, L.D. had not reported her experiences to the police. Although A.P. had called the police, their attitude had caused her to be "put off". It was plain that the two charges related to two quite different types of rape.
19. Counsel for the appellant next proceeded to consider the circumstances of the offences to which charges 10 and 15 related. The complainer in charge 10, T.M., was a deaf mute, who could speak to a very limited extent and could shout. She had been born on 4 October 1952 and was therefore 2 years younger than the appellant. She had had two children at the material time, when she was 25. She then lived in the same district of Edinburgh. The incident she described involved the appellant climbing in through a second floor window of her house from the adjoining house of Ian Dodds, as appeared from pages 102-109 of the transcript 13A and 143-144 of the transcript 13B. This particular complainer had previously made allegations of rape. As regards charge 15, the complainer A.M. had returned to Scotland in a troubled state. She had been homeless for a time and had met one Roger Field in a public house, after which she had gone to a party. She had slept in the house occupied by T.M. The next day she met the appellant and his brother. That evening, as part of a group, she, along with the appellant, went for a meal in a restaurant. After that they had returned to the house where a number of other people were present. As regards the rape itself, this had been violent, involving a delivery of blows to her, and had endured all night long, as appeared from the complainer's evidence in the transcript 13C, pages 20-28. The matter had not been reported to the police, although the complainer sustained significant injuries. The incident involving her had amounted, in effect, to an abduction. Other persons than the participants had been present, as appeared from pages 54-57 of the transcript. The complainer had given evidence at page 58 to the effect that she felt she had been drugged. Against this background of evidence, it was clear that the four offences to which charges 1, 2, 10 and 15 related were very dissimilar. In this connection it was appropriate to bear in mind the observations of Lord Sands in Moorov v. H.M. Advocate at pages 88-89.
20. Counsel for the appellant next turned to consider in detail the trial judge's charge and report. At pages 24-25 she had explained the Moorov doctrine to the jury. At page 28 E-F, a direction was given as to the effect of the jury finding themselves unable to accept the evidence of A.P., the complainer in charge 2. At pages 48-51 of the charge further directions had been given relating to the application of the Moorov doctrine. In particular, at page 49B-D the trial judge had said to the jury that it would be open to them to find that the seven charges which Brian Dodds faced were linked together in respect of their time, place and circumstances, so as to be mutually corroborative. At page 49 she had stated that the Crown was relying upon the fact that all of the seven victims were, at the time, either young, or vulnerable in some other way. At the bottom of page 50 of the charge, the trial judge had said that provided the jury accepted the evidence of at least two of the women and were satisfied that the circumstances of those offences about which they spoke were sufficiently closely linked in the manner described, it would be open to them to find the appellant guilty of those offences. Because of the language used in that passage, it was submitted that the court could not know how the jury might have applied the Moorov doctrine. It could be that they had regarded charges 1 and 15 as mutually corroborative. Plainly that would have been an illegitimate approach on their part; there ought to have been further directions limiting the scope of the application of the doctrine to the effect that it could not be applied as between charges 1 and 15. It had been necessary for the trial judge to take a view regarding the significance of time in the application of the doctrine, although it had not been necessary to settle upon a specific maximum time. However, in the circumstances of this case, the trial judge had gone too far. The doctrine could not be applied to the first and last of a long list of charges. The direction which had been given at page 49B-D, mentioned above, was potentially applicable to fewer than all of the seven of the charges affecting the appellant.
21. In connection with the significance of time in relation to the application of the Moorov doctrine, counsel for the appellant referred to a number of authorities. First, in Reynolds v. H.M. Advocate 1995 S.C.C.R. 504 at pages 507 and 508, it was emphasised that, between the extremes, one where it is not in dispute that the evidence of one offence can corroborate another, and the other where it is not in dispute that the evidence of the commission of one cannot corroborate the other, since there is no peculiar connection between the two, there was what Lord Sands in Moorov had described as "open country". Where a case lay in this middle ground, it was important that a jury should be properly directed so that they were aware of the test which required to be applied. In Turner v. Scott 1995 S.C.C.R. 516 the significance of the time gap in the application of the Moorov doctrine was considered. The court stated that that case was a borderline case, since the time gap approached 3 years. Nevertheless, despite that, the court held that the doctrine could be applied in the light of the coherence in character and circumstance of the offences involved. In Mackintosh v. H.M. Advocate 1991 S.C.C.R. 776, it had been observed that caution must always be exercised when only two instances are brought together in the application of the Moorov doctrine, and that the more these instances seemed to be different on their facts, the more dangerous it became to apply the doctrine. Paterson v. H.M. Advocate 1999 S.C.C.R. 750 was a case where time was not significant, since the two offences occurred on successive nights. However, it was made clear that there was a limit to the application of the doctrine, where two or more offences were dissimilar. In McHardy v. H.M. Advocate 1982 S.C.C.R.582, it was held that the interval of time between two charges was so great as to be fatal to the application of the Moorov doctrine. In that case the interrupting period had been one of 41/2 years. Finally O'Neill v. H.M. Advocate 1995 S.C.C.R. 816 was a case in which it had been held that there was no sufficient material before the jury to entitle them to conclude that there was any unity of purpose between two robberies, such as was essential for an application of the Moorov doctrine. The only similarities had been that both robberies were instances of armed robbery in which a sawn-off shotgun had been presented by masked men and menaces had been made.
22. Summarising his position, counsel for the appellant submitted that, as between charges 1 and 2, there were insufficient similarities in circumstances to entitle a jury to conclude that there was a unity of purpose between the offences concerned. Furthermore, the maximum possible time gap between those two offences was too great to enable the Moorov doctrine to be applied. As between charges 2 and 10, the time gap between the offences concerned was too great to entitle a jury to apply the doctrine. As between charges 1 and 15, it was impossible to know whether the jury had applied the doctrine. It would have been wrong for them to have done so.
23. On behalf of the Crown, the advocate depute moved the court to refuse the appeal. It appeared that the appellant's complaint as regards the trial judge's charge was one of insufficient directions, as opposed to objectionable directions. It had to be borne in mind that, while the test for the application of the doctrine involved time, time was not the only factor involved. In relation to the factor of time, the court had never laid down a maximum period, nor should it now do so. The test laid down in Moorov was not focused upon one factor, but rather upon several in seeing whether the offences were examples of a single course of criminal conduct. There could not be an absolute limit of time, since the test involved the consideration of a range of circumstances. The more similar two offences were as to their circumstances, the longer might be the time lapse between them for the doctrine to be applied.
24. In support of the Crown's position, the advocate depute drew attention to the observations of Lord Justice General Clyde in Moorov v. H.M. Advocate at pages 73-75. It was significant that he had said that before the evidence of single credible witnesses to separate acts could provide material for mutual corroboration, a unity of purpose had to be demonstrated by their external relation in "time, character or circumstance". Lord Justice Clerk Alness, at page 82, made it plain that no limit of time of competency could be laid down, although the factor of time always had to be one of the circumstances examined. The question was whether the crimes concerned were independent, or part of a course of criminal conduct. In Russell v. H.M. Advocate 1992 S.C.C.R. 257, the court rejected the suggestion that there was an obligation upon a trial judge expressly to direct a jury that they could only apply the doctrine of Moorov "with great caution". That was not what had been said by Lord Justice Clerk Aitchison in Ogg v. H.M. Advocate 1938 J.C. 152 at page 158. It was the position of the Crown that the jury in the present case were entitled to look at all of the offences to which charges 1, 2, 10 and 15 related against the background of a proper direction by the trial judge. It was submitted that the number of offences involved in any particular case was relevant; where there were only two, the factor of time might be more important than in cases where there were more than two. It was impossible to isolate the time element in a case from the other circumstances of the case, as desiderated by counsel for the appellant. The whole circumstances had to be examined. That was evident from the observations of the Lord Justice Clerk Alness in Moorov at pages 83-84 and of Lord Sands at pages 88-89. In Ogg v. H.M. Advocate, Lord Justice Clerk Aitchison at pages 157-158 made it clear that the presence of all of the features of character, circumstances and time was not essential to justify an inference that the offences were instances of a course of criminal conduct systematically pursued by an accused person. However, if the intervals of time between offences were substantial, an inference of their inter-relation became difficult.
25. Turning to examine the directions given by the trial judge in this case, it was submitted that the passage at page 49B-D plainly related to all of the charges faced by the appellant in the present indictment.
26. Following an adjournment, the advocate depute reverted to a consideration of relevant authorities. There were certain similarities between the case of Ogg v. H.M. Advocate and the present case, in respect that there had been more charges than there were convictions. As was pointed out by the Lord Justice Clerk at page 157, whether one offence could be used in proof of another depended in every case on whether it was relevant to proof of that other; the only test was relevancy. Difficulty arose where the interrelation between offences was not direct and obvious and the question had to depend upon the circumstances of the individual case. In deciding such question, the relation of the offences in time was a most material consideration. If the intervals of time between the offences were substantial, an inference of their interrelation became difficult and, as a matter of evidence, might be impossible to draw. However, it was recognised in that case, in the same judgment, that while offences might be interrelated by character, circumstances and time, the presence of all those features was not essential. Before a trial judge could reject a case based upon Moorov v. H.M. Advocate, it would be necessary to conclude that no reasonable jury could conclude in the circumstances that the necessary interrelationship existed. Plainly the number of offences involved in any particular case was of importance. The more there were, the easier it was to infer the existence of a course of criminal conduct systematically pursued by the accused person. Thus, where there was a number of crimes, they might extend over many years. What was plain was that, in any case, the evidence required to be looked at as a whole. It was not appropriate to separate some offences out for consideration from a course of conduct which involved more offences; that was an artificial approach. In Ogg v. H.M. Advocate the convictions were quashed, not because of the length of time involved, but because of the lack of similarities between them. Furthermore, only two complainers had been involved in the convictions in issue.
27. It was apparent from the history of the present proceedings that, before the trial judge, no submission had been made that there was no case to answer; nor had there been a submission made to the trial judge for directions to the jury. Thus it had to be supposed that the appellant's advisers considered that the multiplicity of charges against the appellant were capable of amounting to a course of criminal conduct to which the doctrine could apply. Even in relation to the convictions which had ensued against the appellant, four rapes in 8 years in the same area of Edinburgh had been established.
28. The advocate depute next proceeded to examine the similarities he said existed between the offences of which the appellant had been convicted. He contended that the appellant had targeted certain particular vulnerable women; a stamp or design was evident in relation to the offences. The women had been targeted on account of vulnerability arising from their youth, circumstances, or disease. Against these complainers the appellant had employed his superior strength to have his way with them. Furthermore, all the women concerned had been known to him. Force had been used on each occasion. The attacks on the women had been sudden and unexpected. In addition, there were certain similarities of detail. The appellant had removed the lower items of clothing of the women but not the upper items; furthermore he had not undressed himself. All of the women had been scared of the appellant and, in particular, of being assaulted if they had tried to escape from him, or even reported the offences which he had committed. The evidence indicated that the appellant had set up opportunities to impose himself upon them.
29. The advocate depute also drew our attention to Reynolds v. H.M. Advocate 1995 S.C.C.R. 504 at page 508, where it had been made clear that the existence of an interrelationship between charges should be left to a jury, unless it was not possible for any such interrelationship to be affirmed in the circumstances. The court had never thought fit to lay down a maximum period of time which could elapse between offences, beyond which the doctrine could not apply. That was wholly understandable in view of the fact that time was not the only factor to be considered. However, the authorities showed that a time gap of 3 years between two offences was not too long, as appeared from Turner v. Scott.
30. The advocate depute then proceeded to answer the attack which had been mounted upon the trial judge's charge. At pages 24-26, the standard directions relating to the Moorov doctrine had been given, which had not been criticised. It was submitted that there had been no need for any further directions on the doctrine related to any particular charges. Furthermore, at pages 48, 49 and 51 there had been a further treatment of the requirements of the doctrine, which was correct. There was no legal requirement for a trial judge to specify for a jury a time period, beyond which the Moorov doctrine could not be applied. If a judge considered that the gap of time between two charges was so great that no reasonable jury could apply the doctrine, then it would be his or her duty to direct the jury that it could not be applied in that instance. In any event, there was no formulation relating to time alone, which could be given to a jury. In the present case, the jury had been discriminating, since there had been an acquittal on three charges.
31. The advocate depute next addressed himself to the charges on which there had been convictions, with a view to demonstrating similarities between them. Dealing first with charge 1, he drew attention to the circumstances of the offences, as described in the evidence of L.D. herself. At the material time she had been 14 years of age and therefore, on that account, vulnerable. In the first instance, the complainer had been in company with the appellant when she had been baby-sitting for her sister. After completing the baby-sitting, the complainer had been going home with him. She had been pulled into the garden at the back of her sister's house and pulled onto the ground, where the offence occurred. The appellant had not taken his clothes off. He had pulled the complainer's pants down. The second offence involving this complainer had been quite a short time after the first. The complainer had been walking with the appellant in the street, when the latter had dragged her into the gate of a nursery and committed the second offence. Again she had been dragged down onto the ground. Again the appellant had pulled the complainer's pants down. On each occasion the attack on the complainer had been sudden and unexpected; she had been unable to resist on account of the appellant's superior strength.
32. Turning to the circumstances of charge 2, once again the offence occurred in the same district of Edinburgh. The complainer A.P. had been 28 years old at the material time. She was vulnerable on account of her suffering from cerebral palsy, which had affected her from birth. She had been living with her husband when the appellant and L.D., with whom the latter then had a relationship, came to stay as lodgers. After their departure, on the occasion of the offence, the appellant and Brian Munro came to the complainer's house. On being admitted to the house, the appellant had asked the complainer where her husband was. On being told that he was not there the appellant had picked the complainer up bodily and carried her from her sister's room, where she had been watching television, into the bedroom where her children were. She was placed on the bed in that room. Thereafter the offence occurred. The appellant had not removed the complainer's clothing; he had simply pulled down her tights and pants. He himself did not remove his clothing. Brian Munro had been present in the bedroom throughout the incident, apparently acting as a look-out. The complainer, who was quite small, had been unable to resist the appellant. Subsequently during the night of the offence L.D. had come to the complainer's flat, having been told by the appellant that he had had sexual intercourse with the complainer. She had been angry and upset and had hit the complainer. At the time when the offence to which charge 2 related occurred, the complainer was known to the appellant as a vulnerable person. She had been alone at the time of the offence, save for the presence of her children. The attack by the appellant had been sudden and forcible.
33. The advocate depute next turned to the circumstances of the offence to which charge 10 related. The complainer, T.M., had been 24 or 25 years old at the time of the offence concerned. She was deaf and mute. At the material time, she lived in the same district. The appellant had lived in a house next door to that of the complainer. Prior to the commission of the offence, the appellant had climbed out of the second floor flat where he had been living and climbed into the second floor flat of the complainer through a window. At the time the complainer had been separated from her husband and was living alone with her children. The rape occurred in the complainer's bedroom. She was wearing a nightdress and knickers at the time. Force had been used, as a result of which the complainer had bruises to her arms. She had been overcome by the superior strength of the appellant. Her clothes had not been removed by him.
34. Turning to the circumstances of the offence to which charge 15 related, the advocate depute pointed out that the complainer, A.M., was 16 years old at the material time. She had been vulnerable on account of her age and also because she was, in effect, homeless. Before the offence, the complainer had been ejected by her stepfather from her mother's home. Thereafter she had stayed in a hostel. On the evening before the offence, the complainer had met a number of people in a public house. She had been invited to a party by one of them, with the indication that she could get a bed for the night. On arrival at the house in the same part of Edinburgh, there was a number of people present. Eventually the complainer went to sleep on a sofa. The next day there was still a number of people there, including the appellant, drinking. The complainer, along with others, went for a meal to a restaurant in central Edinburgh, after which they returned to the house in question. Following that, the appellant forced himself upon the complainer. He used violence upon her and repeatedly raped her. This occurred on a bed settee in the livingroom, in the presence of other people. By the end of her experience the complainer was seriously bruised. The lower portion of her clothing had been removed. She had been overcome by the appellant's superior strength.
35. The advocate depute submitted that the similarities between the four offences concerned were sufficient to demonstrate a sustained course of criminal conduct on the part of the appellant. All the offences were of rape. They had all been committed in the same district of Edinburgh. In all cases the complainers had been scared of the appellant, whom they had been unable to resist because of his superior strength and weight. All of the offences had involved sudden and unexpected attacks. Only the lower clothing of the victims had been removed and not the clothing of the appellant. He had targeted women who, for one reason or another, had been vulnerable. If the court rejected the submission that all of the four convictions formed part of a systematic course of criminal conduct, nevertheless the convictions could survive upon the basis that the offences to which charges 1 and 2 related, standing alone, demonstrated such a course of conduct, as did the offences to which charges 10 and 15 related.
36. Counsel for the appellant replied. He sought to correct a number of errors of fact which were alleged to be inherent in the submissions of the Crown. He also submitted that certain of the alleged similarities between the offences involved were not truly similarities at all, but were features which existed in all cases of rape. In this connection he referred to Walker and Walker on Evidence, 2nd edition at pages 67-68. Any true similarities existing between the offences involved here were so tenuous as to be insufficient as a basis for the application of the Moorov doctrine. The trial judge should not have allowed the case to go to the jury, although it was accepted that no submission of no case to answer had been made, nor had any submission for directions. Further, it was accepted that there was no contention in the appellant's grounds of appeal to the effect that the trial judge should not have allowed the case to go to the jury. Counsel for the appellant accepted that the case which did go to the jury involved a plethora of charges against the appellant, three of which had been found not proven. In these circumstances the question now was whether the convictions on charges 1, 2, 10 and 15 could be supported upon the basis of the application of the Moorov doctrine. In relation to the issue of possible fresh evidence, raised at the outset of the appeal, counsel for the appellant reserved his position.
37. As the grounds of appeal were developed in argument before us, attention was focused on two main aspects of the case, first, the adequacy of the trial judge's directions on the Moorov doctrine, and, second, the evidence before the jury relating to the four offences of which the appellant was convicted. I deal with each of these matters in turn.
38. Looking, first of all, at the charge, the trial judge referred to the Moorov doctrine in several passages. At page 11C-D, by way of introduction, she indicated that she intended to explain the doctrine of mutual corroboration and would spell out for the jury the conditions about which they had to be satisfied before they could properly apply it to the facts of the case. At page 23D-26B of the transcript of the charge, she set forth her principal directions on the doctrine. She did so in terms which I regard as entirely unexceptionable and I did not understand it to be contended that they were open to criticism. Later, between pages 48A to 52B of the transcript, in the context of the consideration of charge 15 of the indictment, the trial judge reinforced what she had previously said about the doctrine by repetition, in substantially similar terms. Some criticism, with which I deal below, was however directed to the passage at page 49B-D, where the trial judge said:

"So far as these charges against Brian Dodds are concerned, it would be open to you, ladies and gentlemen, to find that the seven charges which he faces are linked together in respect of their time, place and circumstance. In particular, you will have realised that they all took place within not too many years of each other, in the course of the 1970s, in the [named] area of Edinburgh. Accordingly, it would be open to you to find that these alleged crimes were all linked in terms of the time and the place of commission."

39. To the extent that the appellant's argument was based upon criticism of the trial judge's charge, it was, for the most part, a criticism of omission rather than commission. First, it was contended that, where the court had been dealing with charges of some antiquity, the jury should have been directed that an approach to the application of the Moorov doctine more rigorous than would have been appropriate in a case where the charges were of more recent origin should be adopted. Furthermore, it was argued that where, as in the present case, in the charges against the appellant, the Crown had taken considerable latitude, the jury should have been directed that the "benefit" of the maximum latitude should be accorded to the appellant.
40. In my judgment, these criticisms of the trial judge's charge possess no merit. It is no doubt true that where a jury is dealing with evidence relating to charges of some antiquity, care may be required in evaluating that evidence. In the present case that was recognised by the trial judge who drew attention to the age of the alleged offences at pages 14F-15F of her charge, where she said this:

"Before I turn to look at each of the charges there are two observations of a general nature which I would like to make to you, in the particular circumstances of this case. The first of these is that you will by now be well aware of the fact that the matters with which these various charges are concerned date back to a period between August 1969, that is to say, some 30 years ago, and November 1979, about 20 years ago. As has been emphasised to you that is a very long time to have passed before these events have become the subject of examination in evidence in this court. Many of the prosecution witnesses said in evidence that they were having difficulty in recollecting details of the various events, because of the passage of time; that is understandable.

Ladies and gentlemen, you must also bear in mind in assessing the evidence in this case, that so far as the accused are concerned, they knew nothing of these allegations, some of which span a relatively lengthy period of time, until earlier this year. It would be appropriate in these circumstances for you to have in mind the difficulties which may have been caused to the defence in answering these charges, because of this delay."

However, I am unaware of the existence of any authority which suggests that, where a court is dealing with charges of antiquity and where the application of the Moorov doctrine is in issue, an approach more rigorous than would have been appropriate where the charges were of more recent origin should be taken. In my view, the question in cases where the doctrine may be applicable is whether the criterion for its application as explained in the authorities can be satisfied. That remains the question whether the charges concerned are of antique or recent origin.

41. In relation to the matter of the latitude taken by the Crown in the charges, it is, of course, the case that, if an accused person considers that the latitude taken by the Crown in an indictment is unnecessarily wide, that decision may be challenged in an appropriate way at the appropriate time. That was not done in this case. As regards the suggestion that where, in cases of antique origin, the Crown has taken a substantial latitude, the "benefit" of the maximum latitude should be accorded to the accused, again I know of no authority to justify such a proposition. Indeed, if a trial judge were to have given any direction along those lines, I consider that that would have been objectionable in principle. It would have been tantamount to the trial judge instructing the jury as to the point of time at which they were to hold that a particular offence had been committed, which is plainly a matter of fact. I would see the giving of such a direction as being an entirely unwarranted judicial interference with the fact-finding function of the jury. Accordingly, I reject these submissions.
42. Finally, in relation to this area of the case, it was contended that directions going beyond those actually given should have been delivered to the jury to indicate that there could be no application of the Moorov doctrine as between the offences to which charges 1 and 15 related. Indeed, the passage, which I have already quoted from the trial judge's charge, at page 49B-D, it was argued, could be seen as a direction to a contrary effect and was therefore open to criticism. In relation to this argument, it has to be appreciated that the detailed directions which a trial judge gives to a jury in relation to a particular indictment are essentially matters for the discretion of that trial judge. In this case she gave general directions, which I do not consider can be effectively criticised, concerning the nature of the Moorov doctrine. No doubt, had she thought fit to do so, she could have given detailed directions to the jury about the possible application of the doctrine to different combinations of charges. However, bearing in mind that, at the trial, the present appellant faced no less than seven different charges of rape, a decision to follow such a course could well have resulted in a charge of such complexity that the jury might have been put at risk of confusion. In any event, the trial judge decided not to follow that course and I do not consider that she can properly be criticised for having taken that decision.
43. In the course of the appellant's submissions relating to the trial judge's charge, some criticism was directed against the passage at page 49B-D, which I have already quoted. The contention was that this passage could be read as an authorisation to the jury that they could apply the Moorov doctrine as between charges 1 and 15 standing alone. I cannot read the passage concerned in that way. It appears to me that this passage is a direction which specifically relates to the whole of the body of the seven charges which the appellant faced before the jury. In my opinion, it does not purport to relate to any particular combination of those charges and, in particular, to charges 1 and 15 standing alone. Accordingly I regard this criticism as unsound.
44. It appeared to me that, underlying this part of the appellant's submissions, there existed the premise that, in relation to the application of the Moorov doctrine, the court could determine a period of time between incidents, beyond which the doctrine could not be applied. My understanding of the law is that the court has always declined to take such a course. In Moorov v. H.M. Advocate, at page 82, the Lord Justice Clerk said this:

"But, even assuming the law to be as I have stated it, Mr. Wark presented a further argument, which sounded in time. He sought to limit the doctrine which I have stated to incidents closely connected with one another in point of time. Indeed, he went so far as to suggest that, in order to admit of the application of the doctrine which I have explained, the charges must be separated only by hours from one another. I decline absolutely to lay down a time limit of competency. For such a proposal I can find no warrant. The question of time must, I think, always be one of circumstances."

At page 83, he went on:

"I am not prepared to hold that, when such a course of criminal conduct is disclosed, extending over, it may be, a period of 3 years, the court is entitled to rule out as incompetent the corroboration afforded by the earlier to the later incidents. The more remote the incidents are, no doubt, the fainter their repercussion on the later incidents. But that goes, in my judgment, to value rather than to competency. I know of no case, and no passage from an Institutional writer, which forbids me to reach this result."

In the same case, at page 89, Lord Sands observed:

"A great deal of the argument in the present case turned upon the question of time - the interval between the alleged acts. This is an important and, in some aspects, a vital consideration. This results from the quality of the acts as evidence of a 'course of conduct'. A 'course' involves some continuity. Acts isolated by a long period of time do not make a course of conduct. But whether a series of acts is to be regarded as disclosing a course of conduct must depend upon the nature of the acts themselves and the surrounding circumstances. A course does not necessarily imply that the offence is committed or attempted every day or even every month. Opportunity or inclination may be intermittent."

In Ogg v. H.M. Advocate, at page 157, the Lord Justice Clerk said:

"Moorov is a decision of the highest authority by a court of seven judges which authoritatively laid down the general proposition in relation to sexual crimes, although not entirely limited to such crimes, that similar sexual crimes each deponed to by a single credible witness may afford mutual corroboration, provided always that they are so inter-related by character, circumstances and time - the presence of all these features is not essential - as to justify an inference that they are instances of a course of criminal conduct systematically pursued by the accused person."

At page 158, he went on -

"In deciding such a question the relation of the offences in time is a most material consideration. If the intervals of time between the offences are substantial, an inference of their inter-relation becomes difficult and, as a matter of evidence, may be impossible to draw."

45. These views were echoed by the Lord Justice Clerk in McHardy v. H.M. Advocate, at page 583, where he observed:

"While each case must be looked at on its own facts and circumstances and no specific period of interruption can be laid down as the maximum beyond which the doctrine cannot be invoked, I am satisfied that the interruption here was fatal to the satisfaction of the condition of the correlation of time."

Finally, in Tudhope v. Hazelton, at page 460, the Lord Justice Clerk said:

"Nor is the long interval of time between the independent offences necessarily a barrier to the invocation of the rule - it all depends on the circumstances - H.M. Advocate v. A.E, and Lord Justice Clerk Grant in H.M. Advocate v. W.B. 1969 J.C. 72. While in Ogg, Lord Aitchison in referring to the interrelation of character, circumstance and time said that the presence of all these features was not essential, it seems to me that the absence or weakness of one of the features of necessity could require extra force from the other features before the test is satisfied."

46. In the light of the foregoing authorities, it appears to me plain that it is impossible for the court to lay down any maximum period of time in relation to the application of the doctrine. The element of time is one of those circumstances which require to be considered in its application. Whether any particular period of time is or is not too great for the application of the doctrine must depend on the particular circumstances of the case involved and the force of the other elements in the criterion.
47. In all of these circumstances I am not persuaded that there was any misdirection of the jury by the trial judge, nor do I think that she omitted to give any direction to them which was necessary in the circumstances.
48. I turn next to consider the submissions which were made on behalf of the appellant based upon the evidence which was before the jury and the decision which they took to convict the appellant on charges 1, 2, 10 and 15 and to acquit him on charges 4, 7 and 13. It appears to me that the question which this court must now consider is whether the convictions recorded by the jury reflect decisions which they were entitled, upon the evidence before them, to reach applying the Moorov doctrine. In considering that question, plainly it is necessary to examine the nature of the offences of which the appellant was convicted. In my narrative of the submissions made to us I have already recorded the principal factual features of these offences and I do not propose to repeat what has already been said. Having considered the character and circumstances of the offences of which the appellant was convicted as revealed in the evidence, and the lapses of time between them, the conclusion which I have formed is that the jury were not entitled to reach the decisions which they did by applying the Moorov doctrine, the only basis upon which the case was presented to them. As was observed by the Lord Justice General in Moorov v. H.M. Advocate:

"Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connection between the separate acts (indicated by their external relation in time, character or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind - but is related to - the separate acts".

49. While the minimum gap in time between the offences to which charges 1 and 2 relate cannot be regarded as very long, in my view these offences were quite dissimilar. Charge 1 related to two rapes of a 14 year old girl by a 19 year old man undertaken on the ground in the open air. Charge 2, however involved the rape of an older women in a bed in her own house, the appellant having gained access to it upon a pretext. While there is a sense in which there are certain similarities between any offences of rape, I do not consider that such similarities can be a sufficient basis for the application of the doctrine. It is my opinion that no reasonable jury would be entitled to hold that the offences to which charges 1 and 2 related were part of a systematic course of criminal conduct. Turning to the offences to which charges 10 and 15 related, it appears to me that, once again, they are markedly dissimilar. In the case of charge 10, the evidence indicated that the appellant had climbed out of the second storey flat where he was living through a window and climbed into the second storey flat occupied by the complainer in that charge, again through a window. The complainer in this charge was herself an older women with children. On the other hand charge 15 involved the repeated rape of a young girl on a bed-settee in a house, following upon social activity involving both the appellant and the girl concerned and in the presence of numerous witnesses. While the minimum gap of time between these offences was relatively short, I do not consider that the jury were entitled to regard them as part of a systematic course of criminal conduct, having regard to the dissimilarities in the circumstances of the different offences.
50. Turning to consider the possible relationship between charges 1 and 15, while I recognise some significant similarity between the circumstances of the offences, in respect that both of these charges involved the rape of relatively vulnerable young women, that having been said, the actual circumstances of the offences were dissimilar as regards the place and method of commission of the offences. Furthermore, looking at the minimum gap in time between these offences, a period in excess of 7 years, despite any similarities that these offences may show, I am forced to conclude that the jury were not entitled to apply the doctrine as between these charges.
51. Considering the possible relationship between charges 1 and 10, I regard the underlying offences as quite dissimilar in character and circumstances. Furthermore they are separated in time by a very substantial gap, which at the minimum is just under 7 years.
52. Looking at the possible relationship between the offences to which charges 2 and 10 relate, while I recognise some similarity between them, in respect that an older woman was the complainer in each case and the offence occurred in a bed in her own house, the minimum gap of time separating these offences, a period of in excess of 4 years, is substantial. I do not consider that any jury would be entitled to discern the necessary relationship between these offences.
53. Finally considering the possible relationship between charges 2 and 15, I see no significant similarity between the circumstances of the offences. Furthermore, they are separated by a minimum gap of time of just under 5 years. Once again, I am not persuaded that the doctrine could properly be applied as between those two charges.
54. Accordingly, the result of my consideration of the circumstances of the offences to which charges 1, 2, 10 and 15 relate is that, in my judgment, the Moorov doctrine cannot properly be applied to afford mutual corroboration between any of these charges. Accordingly, there being suggested no other evidential basis for the support of these convictions, my conclusion is that a miscarriage of justice has occurred and these convictions must be quashed. Accordingly, in view of the concurring opinions of your Lordships, the appeal is allowed upon that basis.