|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General Cullen
Lord Kingarth
Lord MacLean
|
[2006HCJAC1]
Appeal No: XC461/04
OPINION OF THE COURT
delivered by LORD MacLEAN
in
APPEAL AGAINST CONVICTION
by
NKS
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Appellant: Kerrigan, Q.C.,
Farquharson; Marshall
& Wilson, Falkirk
Respondent: Murphy, Q.C., A.D.; Crown Agent
11 January 2006
[1] The
appellant appeared on indictment in the High Court in Glasgow on 25 May 2004 for trial on five
charges. The first was a charge of lewd,
indecent and libidinous practices and behaviour on a single occasion towards
his daughter J, when she was between the ages of 3 and 4. The second charge was a charge of lewd,
indecent and libidinous practices and behaviour in relation to his younger
daughter, B, on various occasions when she was between the ages of 5 and
11. The third charge also related to B
and set forth lewd, indecent and libidinous practices and behaviour towards her
on various occasions when she was between the ages of 12 and 15. In the fourth charge the appellant was
accused of lewd, indecent and libidinous practices and behaviour towards J, on
a single occasion when she was between the ages of 13 and 14. The fifth and last charge was one of
attempted rape of B on various occasions and at various locations when she was
between the ages of 16 and 23.
Procedure at trial
[2] On
the second day of the trial the Advocate depute intimated to the court that she
intended to amend the indictment by making several deletions. Since that was, somewhat unusually, opposed
by counsel for the appellant, the jury were sent home, and the trial judge
heard submissions from counsel in relation to the proposed amendments. By agreement between counsel
the trial judge also heard submissions on the question whether there was no
case to answer in relation to each of the charges. On the following morning the Advocate depute formally closed the Crown case. In the absence of the jury, the Advocate depute and counsel for the appellant resumed their
submissions of the previous day. Counsel
for the appellant maintained that there was insufficient evidence to show an
underlying unity of intent. The Moorov doctrine could not apply unless
the separate similar offences were so connected by their similarities as to
demonstrate the link between them.
[3] The
trial judge rejected that submission and granted leave to the Crown to amend
various charges in the indictment. No
evidence was led on behalf of the appellant.
It appears that the Advocate depute did not insist on the fifth charge
but did not make that clear in her speech to the jury. In the course of his charge the trial judge
invited the Advocate depute to make her position clear, which she did. As a result, the trial judge directed the
jury to return a verdict of not guilty on that charge.
[4] The
Advocate depute in her speech to the jury made it clear that charges 1 and 2
stood or fell together, as did also charges 3 and 4. The trial judge gave the jury directions to
that effect. The jury returned verdicts
of guilty on charges 1, 2 and 3 and not proven on charge 4. (By direction of the judge they returned a
verdict of not guilty on charge 5).
After hearing submissions from counsel, the trial judge directed the
jury to return a verdict of not guilty on charge 3, in light of the not proven
verdict on charge 4. The appellant was
sentenced to 4 years imprisonment, having been convicted of the following
charges:
"1. On an occasion between 14 December 1966
and 13 December 1968, both dates inclusive, the exact date being meantime to
the Prosecutor unknown, at [address] you did use lewd, indecent and libidinous
practices and behaviour towards [J], your daughter, born 14 December 1963 c/o
Central Scotland Police, Falkirk and expose your private member in her presence
and induce her to handle your private member;
2. On various occasions between 23 March
1970 and 22 March 1977 both dates inclusive, at [address], and [address], both
Falkirk, you did use lewd, indecent and libidinous practices and behaviour
towards [B] your daughter, born 23 March 1965, c/o Central Scotland Police,
Falkirk and handle her private parts, enter her bedroom, place your hand under
the bedclothes and handle her private parts, place your hand over her mouth,
insert your fingers into her private parts, expose your private member in her
presence, induce her to handle your private member, and induce her to take your
private member in her mouth to the emission of semen."
The evidence
[5] J
said that she entered primary school in 1968 when she was aged 4 to 41/2.
B, her sister, was about 15 months younger than her. When she was about 3 or 4 her father "had her
playing with his penis", although she was uncertain about the details of that
incident. In cross-examination she said
that she preferred the age of 3 rather than 4 for the occasion when this
incident happened.
[6] B
said that she went to primary school when she was aged about 5. When she was between the ages of 5 and 7 her
father touched her vagina with his fingers when he was drying her after a
bath. On later occasions, when she was
still at primary school, he would enter her bedroom at night, put his hand over
her mouth, and touch her vagina with his fingers under the bedclothes of the
bed which she shared with her brother.
On some of these occasions he would put his fingers inside her vagina
and take her hand and place it on his penis.
This happened very frequently when she was in primary school. Before she started secondary school, when she
was "about 11 coming on for 12", she had to do things to him. He made her take his penis in her mouth and,
having done that, he would ejaculate.
This, she said, happened "a lot more than once or twice" in the
period before she reached the age of 12.
Submissions
[7] Mr.
Kerrigan addressed himself essentially to the first ground of appeal, which was
that the trial judge had erred in repelling the submission of no case to
answer. He referred to Moorov v H.M. Advocate 1930 J.C. 38 and Ogg
v H.M. Advocate 1938 J.C.
152. In Moorov, Lord Justice General Clyde said, at page 73:
"The test I
think is whether the evidence of the single witnesses as a whole - although
each of them speaks to a different charge - leads by necessary inference to the
establishment of some circumstance or state of fact underlying and connecting
the several charges, which, if it had been independently established, would
have afforded corroboration of the evidence given by the single witnesses in
support of the separate charges. If such
a circumstance or state of fact was actually established by independent
evidence, it would not occur to anyone to doubt that it might be properly used
to corroborate the evidence of each single witness. The case is the same, when such a
circumstance is established by an inference necessarily arising on the evidence
of the single witnesses, as a whole. The
only difference is that the drawing of such an inference is apt to be a much
more difficult and delicate affair than a consideration of independent
evidence. No merely superficial
connection in time, character and circumstance between the repeated acts -
important as these features are - will satisfy the test I have endeavoured to
formulate. 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."
[8] According
to Mr. Kerrigan, the evidence did not establish an underlying unity
comprehending and governing the separate acts and providing the necessary link
between them. No connection in this case
was other than incidental. As Lord
Justice Clerk Aitchison said in Ogg v
H.M. Advocate at page 158:
"The
difficulty arises where the inter-relation is not direct and obvious, and the
question must depend upon the circumstances of the individual case. Where the inter-relation is sought between
similar offences as in this case, it must be possible to say that there is not
only a series of separate similar offences, but that there is a reasonable and
practical certainty, based not on conjecture or suspicion, nor a mere moral
certainty, that the similar offences are instances of one course of criminal
conduct persistently pursued by the accused person."
What, according to Mr. Kerrigan,
was lacking in this case was a course of conduct persistently pursued by the
accused. While J gave evidence about a
single incident, B gave evidence of persistent and escalating abuse, despite
there being the same opportunity for abuse in the case of each of the complainers . All
that one had here was, at best, a general disposition to commit some kind of
offence. In any event, the time gap
between the incident in charge 1 and the commencement of the conduct in charge
2 could not be less than about 3 years and might well be more. The stage at which B started to handle the
appellant's penis was, according to her evidence, not before she was seven
years of age. That gap in time was too
great. The trial judge had not dealt
adequately with what it was for the jury to do with the evidence which had been
led in regard to charge 5.
[9] The
Advocate depute refined the time gap to 2 years 8 months, on the most
favourable view of the evidence for the Crown.
He pointed out the similarities between the evidence on the two
charges. The offences occurred within
the family home. The appellant had only
two daughters and each became a victim.
Both were pre-pubescent at least when the conduct began and that involved
the touching of private parts. He also
referred to McCrae v H.M. Advocate 2005HCJAC9 in support of
his submission. That case was closest to
the present one. Each complainer in that
case was the son of the appellant's cohabitant.
Both incidents took place within the home, at night, in a darkened room
when the complainers were asleep and in night attire. Each took place when the complainer was 15,
although they were separated in time by more than 3 years. Each involved masturbation. Mr. Kerrigan pointed out that both
complainers in that case were quite mature and at an age and stage of
development which might have been attractive to the accused. Here the evidence was much sketchier.
Discussion
[10] It is not in doubt that the jury found both daughters of the
appellant credible and reliable. They
convicted the appellant of the offences in the libel which was remitted to
them, without alteration or deletion. In
our view the directions given to the jury cannot be faulted. The trial judge made it clear to them that
the conviction of the appellant on charges 1 and 2 depended on the relationship
between the evidence on those two charges.
The question for this court is whether the evidence given by the
complainers as to time, character and circumstances of the appellant's conduct
towards them was such as to entitle the jury, if they chose to do so, to find
that there was an underlying unity between them which pointed to the guilt of
the appellant in regard to those charges.
In our view it was open to the jury to hold that there was such an
inter-relation between the offences in charges 1 and 2. There is the very obvious point that each
complainer was a daughter of the appellant.
The offences took place within and in the secrecy of the family
home. A common feature in the offences
was the appellant's exposure of his penis and his inducing the complainers to
handle it. It has to be accepted that
there was a gap of approximately 3 years between the commencement
of the offences. We are not disposed to
consider that anything necessarily turned on the fact that the initial conduct
of the appellant towards B did not involve such exposure or inducing her to
handle his penis. It was open to the
jury to treat that matter as a distinction without a true difference. The appellant began his conduct with the
second complainer at an older age than the first complainer, but thereafter,
according to the second complainer's evidence, he appeared, in the period
covered by charge 2, to concentrate upon her, for whatever reason. When all the circumstances are viewed
together we are satisfied, on balance, that the jury were entitled to hold that
there was a reasonable and practical certainty that the offences, which were
undoubtedly similar, were demonstrations of a unity of criminal purpose pursued
by the appellant towards his daughters.
[11] It follows that the trial judge was correct in refusing the
submission of no case to answer in terms of section 97 of the Criminal
Procedure (Scotland) Act 1995. There was
sufficient evidence in support of charges 1 and 2. The appeal is refused.
