Scottish High Court of Justiciary Decisons

Sinder v. Her Majesty's Advocate, [2003] ScotHC 9 (20 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Osborne Lord Hamilton	Appeal Nos: C244/02 XC135/02 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST CONVICTION and SENTENCE by ALLAN SINDER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Shead; Purdie & Co.

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

20 February 2003

1. The appellant went to trial on an indictment containing three charges, all of which alleged lewd, indecent and libidinous practices and behaviour. These charges were in the following terms:

"(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."

2. On 21 February 2002, on the conclusion of the Crown case, the Procurator Fiscal Depute moved the court to allow the indictment to be amended so as to reflect the evidence which had been led. The proposed amendment involved deleting the words "1 July" in charge 2 and substituting the words "12 May", and in charge 3 by deleting the word "place" in line 4 and substituting the word "expose", by adding the words "to her" after the word "member" and by deleting the words "against her naked private parts" in lines 4 and 5. Counsel for the appellant, having reserved his position regarding the proposed amendment, submitted that, on the evidence, there was no case to answer. Having heard the parties, the sheriff repelled that submission and subsequently allowed the amendment. In due course the jury returned verdicts of guilty on all three charges.
3. The appellant now appeals against his conviction on the following grounds:

"(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."

4. When this appeal came before us, counsel for the appellant submitted that the Moorov doctrine could not properly be applied in the circumstances of the case. Accordingly, since there had been no other means of corroborating the allegations made, the sheriff ought to have upheld the submission of no case to answer. Attention was then drawn to the reasons given by the sheriff for his decision in paragraphs 17 - 20 of his Report. It was submitted that the evidence in the case demonstrated, at its highest, no more than a general disposition to commit a particular kind of offence, but did not satisfy the requirements of the Moorov doctrine. It was contended that the lengthy time intervals between the date of the offence to which charge 1 related and the dates of the offences to which charges 2 and 3 related amounted to a formidable impediment to the application of the doctrine. In any event, there was no sufficient similarity between the circumstances of the offence to which charge 1 related and those to which charges 2 and 3 related. There was no evident underlying unity of purpose. Counsel for the appellant accepted that the court had never recognised an absolute time limit as regards the intervals between incidents to which the doctrine might be applied, since the question of its application involved looking at the whole circumstances, not just the length of a time interval. In this connection reference was made to Dodds v. H.M. Advocate 2002 SCCR 838.
5. Counsel for the appellant next drew attention to the detailed circumstances of the three offences, which he contended showed insufficient similarities to enable the doctrine to be applied. Since these circumstances are crucial to the determination of this appeal, it is appropriate for us to summarise them now. Our summary is derived from the evidence, as described in the Report of the sheriff. As regards charge 1, the complainer said that, about 5 years ago, when she was about 11 years old, she had been interfered with by the appellant in the livingroom of her home. She thought the date was about November, but was not sure. The appellant had been a friend of her father and had assisted him in doing things round the house. The incident had occurred in the evening when the complainer, her father and the appellant had been sitting watching television. The complainer liked to have her hair brushed and the appellant used to do this and to style it. He also used to rub the back of her neck like a massage. She thought nothing of that. On the particular occasion in question her father had been in an armchair while the appellant had been sitting on the settee. The complainer herself had been sitting on the floor in her pyjamas in front of the appellant. The appellant had put his hand down inside the waistband of her pyjamas and around her bottom where he fumbled about. She could not remember how long his hand had remained there. At the age she was, she did not know about that kind of touching and was unsure of what was going on. She wanted to get up and must have moved to get the appellant's hand out of the position in which it was; she thought that she had then said that she was going to bed. She thought that if the appellant had gone down the front of her pyjamas her father would have noticed. She thought that she had not told her father about the matter at the time, but the next day she had worried about it at school and had told her father when she came home. This incident had been reported to the police shortly after its occurrence but the appellant denied the allegation.
6. Turning to the circumstances of charges 2 and 3, the complainer had testified that she had known the appellant, since he was a friend of her mother. She had known him for as long as her mother, about five years. She was in the habit of going to his house and he came to her house. She had been about 9 years old when first abused at the appellant's own house. This was the subject matter of charge 2. She had been at the house because her mother had been working late and had asked the appellant to look after her and her brother. Since her mother did not finish work until late, they had stayed overnight and had gone to school from there next morning. She, her brother and the appellant had all slept in the same bed. She had been lying in the middle of the two and wore a T-shirt and shorts. The appellant had taken the shorts down and had touched her private parts. She felt scared and had pretended that she was asleep. He had done this more than once in that particular house. She had also described the incident to which charge 3 related. It had occurred in her own house. He had been there when her mother, the appellant and another person had visited a public house. The occasion was Hogmanay. She and her brothers had been sitting in the livingroom. Subsequently she had gone to bed. The appellant had later entered the same bed and had touched her private parts. He had also licked her buttocks. She had not got out of bed straight away, but had done so when the appellant had removed his penis from his pants, when she felt frightened. She had then got up and gone to her brothers' bedroom. She had told her brothers about the incident on New Year's Day and they had told her mother. There had been evidence of an acquaintance between the appellant and the complainer's mother over a period of years. The appellant had assisted the complainer's mother to decorate her house.
7. We now revert to the submissions of counsel for the appellant, in which reliance was placed upon Ogg v. H.M. Advocate 1938 J.C. 152, at page 158, where the Lord Justice-Clerk emphasised the need for caution in the application of the Moorov doctrine. If it was not applied with caution, there was a danger that evidence showing merely a general disposition to commit some kind of offence might be treated as corroboration. Counsel for the appellant also drew our attention to Bargon v. H. M. Advocate 1997 S.L.T. 1232. In that case it had been held that, given the length of time between the incidents and the differences between them, it had not been open to the jury to apply the Moorov doctrine. In that case, the period of time involved had been at least 3 years and 7 months, a period comparable with that in the present case. It was contended that the similarities between the incidents in Bargon v. H.M. Advocate were more striking than any similarities existing here. In all the circumstances, the sheriff had reached an erroneous conclusion on the motion of no case to answer. Accordingly the appeal should be allowed.
8. The Advocate depute moved us to refuse the appeal. He recognised that, having regard to the time intervals involved here and the particular circumstances of the incidents, the issue before the court was a narrow one. He emphasised that the court had never laid down any time limit for the application of the doctrine, as appeared from Dodds v. H.M. Advocate. He went on to draw attention to the reasoning in the sheriff's report, which he contended was correct. He pointed out that the sheriff had given a careful charge to the jury on the Moorov doctrine. He indicated that the verdicts on charges 2 and 3 on the indictment had been unanimous. He agreed that the circumstances of the incidents to which charges 1 and 3 related were markedly different. There was a greater degree of similarity apparent between those to which charges 1 and 2 related.
9. In the argument before us, there was no dispute as to the legal principles which must be applied to this case. Since they have been explained on many occasions, there is no need to do so again here. It is perhaps sufficient to reiterate what was said in Ogg v.H.M. Advocate by the Lord Justice-Clerk at page 158:

"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."

10. Turning to the circumstances of this case, since the complainer in charges 2 and 3 is the same person, the issue is whether there is a sufficient inter-relation between the circumstances of charge 1 and those of either charge 2 or charge 3. In our view, there is a marked dissimilarity between the incident described in the evidence relating to charge 3 and that relating to charge 1. The latter charge related to a limited incident, which occurred in a livingroom in the presence of the father of the complainer. The incident to which charge 3 relates involved behaviour of a different and more serious kind in a bed. It might be said that there were greater similarities between the incident involved in charge 1 and the behaviour involved in charge 2, but even here the circumstances were materially different. Charge 2 involved incidents in a bed and the touching of the complainer's private parts, whereas charge 1 is of the nature already described. In association with the particular circumstances of these incidents, it is necessary to consider the time intervals involved. The least interval between the charge 1 incident and the charge 2 behaviour is just over 3 years and 5 months. The interval between the charge 1 incident and the charge 3 incident is in excess of 4 years. Having regard to the circumstances of the incidents themselves and to the time intervals to which we have referred, we have reached the conclusion that no jury would have been entitled to apply the Moorov doctrine in the circumstances of this case. It follows that the sheriff ought to have sustained the submission of no case to answer, since there was no other means of corroboration of the Crown's case. Accordingly we shall allow this appeal. The convictions on the three charges in the indictment will be quashed.