Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_32.html
Cite as: 2007 GWD 20-345, 2007 JC 198, [2007] ScotHC HCJAC_32, [2007] HCJAC 32, 2007 SCCR 303

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Macfadyen

Lord Penrose

[2007] HCJAC 32

Appeal No: XC7/06

OPINION OF THE LORD JUSTICE CLERK

in the Appeal by

DEAN STEWART

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the Appellant: Moir, Miss Mitchell; Balfour & Manson

For the Crown: Young, AD; Crown Agent

14 June 2007

Introduction

[1] The appellant was tried at Glasgow High Court in October and November 2005 on 13 charges of rape and other sexual offences involving nine complainers. Seven were young women. The other two were girls under the age of 16.

[2 ] The jury convicted the appellant by a majority verdict on only three of the charges, namely the following:

"(5) on an occasion between 1 May 1998 and 3 November 1999, both dates inclusive, the exact date being to the Prosecutor unknown, at [locus in Barrmill] you did abduct [complainer A] ... pretend to her that there was a warrant in force for her arrest and induce her to enter a marked police vehicle, convey her from [locus in Barrmill] to [locus in Beith] and there assault her, pull down her trousers ... and place a baton in her private parts to her injury ...

(7) on an occasion between 1 September 1999 and 17 December 1999, both dates inclusive, the exact date being to the Prosecutor unknown, at [locus in Kilwinning] you did use lewd, indecent and libidinous practices and behaviour towards [complainer B] ... a girl then over the age of 12 years and under the age of 16 years, and did repeatedly place your hand inside her trousers and attempt to touch her private parts, take hold of her hand, and attempt to place her hand on your private member: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, section 6 ...

(12) on 4 October 2003, at [locus in Irvine] you did assault [complainer C] ... and did attempt to pull down her trousers, and place your hand inside her trousers and pants and place your fingers in her private parts."

At the time of each of the alleged offences, the appellant was a serving police officer. From early 1996 to late summer 2002 he was a uniformed officer stationed at Kilbirnie. From summer 2002 to summer 2003 he was a plain clothes officer at Saltcoats. After that he was a uniformed officer stationed at Irvine.

The evidence for the Crown on charges (5), (7) and (12)

Charge (5)

[3 ] The complainer was aged 19 at the date of the incident. She had learning difficulties and was a drug user. She lived in Barrmill, a village close to Kilwinning. She said that when walking through the village, she came upon the appellant at the first locus libelled. He was sitting in a parked police van. He was in uniform. He told her that there was a warrant out for her. He said that his colleague WPC Fraser was in the van. The complainer knew the appellant. He had arrested her on warrants several times. He put the complainer into the rear of the van. WPC Fraser was not there. The van had no cage, which was unusual for a police vehicle.

[4 ] The appellant drove the complainer to the second locus libelled, which was a farm road in Beith. There he joined her in the back of the van. He took out his baton and committed the acts libelled. He then drove her back to Barrmill.

[5 ] The complainer was uncorroborated.

Charge (7)

[6 ] The complainer was aged 15 at the time of the incident. According to the trial judge, she was a good, clear and articulate witness. She had become involved in a sexual relationship with a man aged 42. She also abused alcohol. The appellant was one of the officers called to the scene when the complainer and the older man were found together in a public park in Dalry. To be kept away from the older man, the complainer was sent to Kilwinning to live with an aunt. The appellant and another officer went to the aunt's house to interview the complainer about the relationship. The appellant was in uniform. At his suggestion, the complainer went with him to her bedroom to speak privately. The complainer's aunt and the other officer stayed in the living room. The appellant then touched the complainer's inner thigh on top of her clothes. Among other acts, he took her hand and pressed it on his private parts. He tried to get her hand inside his trousers. He got her to hold his penis. He forced his hand down the inside of her trousers.

[7 ] The complainer was uncorroborated.

Charge (12)

[8 ] The complainer was 28 years old at the date of the incident. She had spent the earlier part of the day at the home of her next door neighbour in Irvine. They and others were watching a televised football match. The complainer drank a large amount of vodka. In the evening she went to a party at a nearby house at the locus libelled. She continued drinking and became angry. At about 10 pm she became involved in a fracas with another woman. She threw over the kitchen table and smashed dishes and glasses. The other partygoers were so alarmed that they went outside and telephoned for the police.

[9 ] The complainer then lay down on a sofa in the living room. The appellant and Special Constable Dominic Mongiardini were sent to deal with the incident. They were in uniform. The complainer did not know them. They carried her towards the front door as far as the foot of the stairs. The appellant then sent PC Mongiardini out to look for the complainer's partner. The complainer said that when she was alone with the appellant, he committed the acts libelled. She said that she then "freaked out."

[10 ] PC Mongiardini said that when he returned, he found the complainer where he had left her. The appellant told him that he was refusing to have any more to do with her as she had claimed that he had touched her up. The complainer was crying. She said "That dirty pervert touched me up." The complainer left the house. Her distress at the time was seen and remarked on by her partner and her next door neighbour, among others.

[11 ] The complainer went home and cried herself to sleep. She awoke during the night and telephoned the police to complain of "rape."

[12 ] The complainer handed over her clothing to the police for examination. At that stage she noticed that the zip pull in her jeans was missing. WPC Laura Thomson said that the complainer was surprised. The complainer said that the zip pull had been in place earlier in the evening.

The trial judge's charge

[13 ] All thirteen charges went to the jury. The trial judge divided the charges into three categories; namely, the three rape charges, the other penetrative sexual assault charges and the charges of indecency of one kind or another. He gave clear and accurate directions on the Moorov principle. He then directed the jury as to how they should apply that principle to those three categories as follows.

"The charges which are rape - that is to say, the three charges. Remember that I asked you to underline all of these words, assault, abduction and other words as they appeared. Now the reason you have done that already - the three charges of rape of [complainer on charge (1)], [complainer on charge (9)] and [complainer on charge (13)] can be used in accordance with this Moorov doctrine to corroborate one another - for that of course is this.

As far as [complainer on charge (1)] is concerned - and I will come back to that - there is only [complainer on charge (1)] to tell you about that. There is no corroboration of that charge at all from anybody and the only way that you can corroborate is if you use the two later charges to corroborate it - that is to say, [complainer on charge (9)] and finally [complainer on charge (13)].

You then have four charges which I have told you ... I am not going to repeat them again but you have got 3, 5, 11 and 12 which are what I call penetrative sexual assault charges. They can corroborate one another because they are of the same type, provided of course you find time, character and circumstances. The three rape charges I should have already mentioned can also be used to corroborate the penetrative charges because the rape charges are more serious and down the scale the penetrative charges are next and then finally you are left with the non-penetrative - simple indecent, however unpleasant it was, but it has to stand on a scale of seriousness and it is lower on the scale of seriousness than these other charges I have given you which are 2, 4, 6, 8, 10 and 7.

They can be used individually to corroborate one another and of course they can also be supported by the penetrative charges and they can also be supported by the rape charges. So, you can use the Moorov doctrine in that way if you find that it applies in this case on the evidence.

Now, I have a couple of qualifications to make about that and I think that they will be obvious to you. In this case I have said to you the greater can corroborate the lesser but not the other way around ... "

[14 ] The trial judge considered that there was sufficient evidence on charge (12) for it to stand alone and he charged the jury to that effect. He recognised, however, that it was also part of what he describes as the "Moorov web of related charges" (Report, p 6).

The views of the trial judge

[15 ] The trial judge reports that when the verdict was given he was troubled as to whether it could properly stand. He remains of that view. He says that the jury were entitled to believe all three complainers, since none of them was so inherently incredible as to be unworthy of belief. However, he observes that the complainer on charge (7) was not fully believed, the jury having convicted on charge (7) only in the alternative. He also observes that all of the complainers gave a number of statements, used at the trial, that revealed many contradictions.

[16 ] He comments that if the jury considered charge (12) to be a stand-alone charge, they were entitled to convict on it. He considers that charge (12) could not be used to corroborate either charge (5) or charge (7) by reason of the interval of time.