APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal Nos: C244/02
OPINION OF THE COURT
delivered by LORD OSBORNE
APPEAL AGAINST CONVICTION and SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: Shead; Purdie & Co.
Respondent: Bell, Q.C., A.D.; Crown Agent
20 February 2003
"(1) On 19 November 1996 at [address], you ... did use lewd, indecent and libidinous practices and behaviour towards [A], ... then aged 11 years ... and put your hand under her clothing, touch her body and handle her naked buttocks.
(2) Between 1 July 2000 and 31 December 2000, both dates inclusive, on two occasions at [address], you ... did use lewd, indecent and libidinous practices and behaviour towards [B], ... then aged 9 years ... and did place your hand under her clothing and handle her naked private parts.
(3) On 1 January 2001 at [address], you ... did use lewd, indecent and libidinous practices and behaviour towards [B], ... then aged 9 years, and did enter her bed, remove part of her clothing, lick her naked buttocks, handle her naked private parts and place your naked private member against her naked private parts."
"(1) The learned sheriff erred in refusing the defence motion that there was no case to answer given the fact that there was insufficient evidence to allow corroboration of the charges.
(2) The Crown relied upon the Moorov Doctrine to mutually corroborate charge 1 with charges 2 and 3, however, there was at least 3 years and 6 months between the allegation in charge 1 and those in charges 2 and 3; there was little similarity in the evidence of the complainers in charge 1 and charges 2 and 3 which could result in the Moorov Doctrine being applied and the sheriff erred in holding that there was sufficient similarity to allow the application of the doctrine."
"As I have said, the doctrine of Moorov is a valuable doctrine, but it must be applied with great caution. If it is not applied with caution there is a danger that evidence showing a general disposition to commit some kind of offence might be treated as corroboration. That must always be guarded against and the doctrine ought not to be applied unless inter-relation of the similar offences in some substantial sense can be with certainty affirmed."
Furthermore, as the Lord Justice General said in Bargon v. H.M. Advocate at page 1233:
"All these cases have to be considered on their own facts and we would not wish to lay down any hard and fast doctrine. The simple question in each case is whether or not all the circumstances including the time gap are such that is open to a jury properly to infer that there was a course of conduct which linked the incidents and so provided the basis for the doctrine to be applied."