Scottish High Court of Justiciary Decisons

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HIGH COURT OF JUSTICIARY

[2007] HCJ17

OPINION BY LORD BRODIE

in the Minute by

T. McK

in the cause

HER MAJESTY'S ADVOCATE

against

T. MCK., M.J.C. and J.A.MCK

________________

Minuter (First Accused): Moir; Brian Gregg, Solicitors

Crown: Ablett, AD; Crown Agent

22 August 2007

Introduction
[1] This case called before me for a continued preliminary hearing on 22 August 2007, one of the purposes of which was to hear an application at the instance of the first Accused and Minuter, T. McK, for the separation of the two charges on the indictment which concerned him. These are charges (1) and (3). I heard Mr Moir on behalf of the Minuter and the Advocate Depute in reply. I further continued the hearing until 28 August 2007 with a view to determining future procedure in the light of the submissions which had been made.

The indictment
[2] Charge (1) on the indictment is subject to certain bail aggravations relating to the second and third accused. Ignoring these bail aggravations, charges (1) and (3) on the indictment are in the following terms:

"(1) on 7 and 8 December 2006, both dates inclusive at 70A Seedhill Road, Paisley, you T. McK, M.J.C. and J. A. McK. did force entry to the house there, occupied by Richard Manser, c/o Strathclyde Police, Mill Street, Paisley, and did assault said Richard Manser, utter threats of violence to him, brandish knives or similar instruments at him, demand money from him, strike him on the head with a knife or similar instrument, repeatedly punch him on the head, bind and gag him and detain him against his will in said house, threaten to kill him and repeatedly strike him on the head with a knife or similar instrument, all to his severe injury and permanent disfigurement and did thereby rob him of personal papers and a bank card;

... and

(3) on 3 February 2007 at 22 Waverly Road, Paisley, you T. McK did, whilst acting with another whose identity is to the Prosecutor meantime unknown, force entry to the house there, occupied by Gary McKay, and did there assault said Gary McKay, repeatedly strike him on the body with knives or similar instruments all to his severe injury and to the danger of his life and did attempt to murder him."

The argument
[3] The basis of the submission made on behalf of the Minuter lay in an assessment of the evidence available to the Crown in support of charge (1). The position set out in the Minute lodged on behalf of the Minuter and developed by Mr Moir in submission was that there was simply no corroboration whatsoever of the complainer's account insofar as it related to the Minuter (the position was different in relation to the second and third accused). The inevitable outcome if the Minuter went to trial on the present indictment would be that, in the event of the Crown insisting on charge (1), a submission of no case to answer would be made and would succeed. However, by that time the jury would have heard evidence implicating the Minuter in the assault and robbery of the complainer in that charge. That could not but prejudice their minds when considering charge (3), for which Mr Moir accepted there was corroboration. No direction that the trial judge might give could cure that prejudice. Given the absence of corroboration for charge (1) if considered in isolation, Mr Moir anticipated that the Crown would rely on the doctrine of mutual corroboration as between separate charges associated with the decision in Moorov v HMA 1930 JC 68. It was Mr Moir's submission that while what was alleged in charge (1) occurred close both in time and as to locality with what was alleged in charge (3), there was nevertheless no sufficient nexus between the two charges as to allow the doctrine to be applied, as the Crown was or ought to be aware. Accordingly, by seeking to lead evidence in support of both charges at one trial in circumstances where it was clear that it would not be able to ask for a conviction on charge (1) in respect of the Minuter, the Crown was acting oppressively. The court has the power to prevent this. Mr Moir did not suggest that the Minuter should not be tried, together with the second and third accused, on charge (1) but he submitted that this should be separated from the Minuter's trial on charge (3) (in respect of which only he is currently indicted).

[4] The Advocate Depute took no issue with Mr Moir's underlying approach: that if the court was satisfied that there was indeed no corroboration available to support the complainer's account of the Minuter's involvement in charge (1) it would be entitled to separate the charges with a view to avoiding the unfairness of leading evidence of an offence which could not be proved at the trial where another offence, in respect of which there was a real issue, was also charged. However, it was the submission of the Advocate Depute that there was a sufficiency of evidence for charge (1). That was so if the charge was considered in isolation but this was also a case where charge (1) taken with charge (3) afforded mutual corroboration one for the other.

The evidence
[5] The argument outlined above could only of course be advanced on the basis of an agreement between the parties as to what was the evidence available to the Crown. It was with a view to establishing what it was that, on the basis of precognition, the Crown might be able to prove that the preliminary hearing had been continued from 20 July 2007. Agreement had been reached and I was invited to consider the respective contentions of the parties under reference to a written statement of what the Crown considered it in a position to lead by way of evidence. I set out that statement (subject to some very minor editing) below.

Charges (1) and (2)
[6] Prior to the incident forming the basis for charges (1) and (2), the complainer Richard Manser had for some three years been involved in a relationship with the third accused, J. McK. The Minuter, T. McK is the father of J. McK, and is also known to the complainer. At the time of the incident which is the subject of charges (1) and (2) the second accused M. J. C. was the boyfriend of J. McK.

[7] The locus of the incident was Richard Manser's home at 70A Seedhill Road, Seedhill, Paisley. The primary source of evidence for charge (1) against T. McK. is that of Richard Manser. His evidence is that at about 2100 hours on Thursday 7 December 2006, he was at home at 70A Seedhill Road when his doorbell rang. He went to the bay window of his living room, and looked down to his front door. He saw J. McK., standing alone at his front door. The complainer made his way down the internal stairs to the front door. He allowed J. McK. to enter. They ascended the stairs and entered Mr Manser's house. Thereafter a brief conversation took place, with J. McK. asking for money for cigarettes. The complainer gave £2.50 to J. McK. and she left with the stated intention of going to a nearby shop. She returned a short time later, shouting from outside "Richard, Billy's closed", referring to the local shop. The complainer shouted from his window that she should try a nearby grocer. Moments later, the complainer's front door was forced open, and three persons entered the living room: the first accused T. McK; a male later referred to as "M.", and J. McK.. T. McK. and M. were holding knives. T. McK. is described as holding a large knife or machete. M. had a "samurai type sword". T. McK. was the more aggressive, waving his knife in the complainer's face. The complainer was forced to sit on the settee. T. McK. shouted at him that he had "ruined his daughter". T. McK. then struck out with a knife at the complainer, striking him at the side of his left eye, as a result of which the complainer was injured and started to bleed. T. McK. then continued to threaten the complainer, stating inter alia that he would stab him in the chest. T. McK. then asked the complainer how much money there was in the house. The complainer indicated that he had only £25. T. McK. then stated he wanted all Mr Manser's bank cards. The complainer stated that he only had one card, to which the accused T. McK. stated, "Right, I want that card". The complainer retrieved his wallet from a locked cabinet. The wallet and the complainer's card were snatched from him by M.. The card was handed to J. McK. T. McK. and M. then held their knives at the head and chest level of the complainer, approximately six inches away from him. All three of the intruders asked the complainer for his pin number. The complainer provided it. J. McK. wrote the pin number down on a piece of paper, and left the house. She was wearing a white coat. Within the house, the complainer sat down again on the settee. Between approximately 9.30pm and midnight, the complainer, T. McK. and M. watched television. During that time, T. McK. mentioned the complainer's relationship with J. McK and L. A. B., his ex-wife/partner, and continually threatened the complainer with violence. M. suggested that the complainer had a "stash" of money somewhere. The complainer directed him to approximately £20 in a bedroom. T. McK. stated to the complainer that the incident had been planned, that he had an alibi and that he would burn all of his clothing after the incident.

[8] Officials of the Bank of Scotland are able to confirm that the following withdrawals were made from the complainer's account, using the bank card taken from the complainer's house: 1. 2125 hours on 7 December 2006 - £200 withdrawn from Bank of Scotland ATM in Glasgow Road, Paisley; 2. 2127 hours on 7 December 2006 - £100 withdrawn from Bank of Scotland ATM in Glasgow Road, Paisley ; and 3. 0037 hours on 8 December 2006 - £300 withdrawn from Bank of Scotland ATM in Neilston Road, Paisley. Thus a total of £600 was withdrawn. The first ATM is very close to the complainer's house. The second ATM on Neilston Road is between a mile and a mile and a half away. At around the time that the last withdrawal was made, images were captured by the CCTV system of a shop in Neilston Road, close to the Bank of Scotland on Neilston Road. Two witnesses have viewed the images, and will confirm that they include that of a person matching the general description of J. McK., and wearing a white coat, on Neilston Road at around the time of the final withdrawal.

[9] At the complainer's house, T. McK. frequently went to the living room window, looking for J. McK. Just after midnight he stated he was going out to look for her. M. found plastic cable ties and duck tape in the cupboard within the house, and brought the items into the living room. T. McK. and M. then tied the complainer's wrists with the cable ties. T. McK. then obtained a sponge from the kitchen sink, returned and instructed the complainer to open his mouth. T. McK. then placed the sponge in the complainer's mouth, and wrapped the duck tape around the complainer's head, securing the sponge in place in the complainer's mouth. T. McK. then left the house.

[10] At around 0040 hours on Friday 8 December 2006, T. McK. and J. McK. returned to the house. J. McK. became aggressive. She punched the complainer's face, striking his left eye, and causing the previous injury to bleed. She continued to punch him. T. McK. restrained her. They then left the living room and went into the kitchen area. Both then returned. J. McK. was in possession of a small black handled knife. She and T. McK. stood in front of the complainer. T. McK. said, "Slash him" and J. McK. then said to the complainer something along the lines of "You are getting what you deserve." J. McK. then began to strike the complainer's face with the knife. T. McK. then said, "Here" and pointed to the right side of Manser's face. J. McK. struck the complainer on the right hand side of his face. The attack then stopped.

[11] Various personal papers, the complainer's diary, and a collection of pornographic films were packed into polythene bags and all three intruders collected the bags, their used drinks cans, cigarette ends and left the house.

[12] The complainer freed himself from the ties, and removed the tape and sponge from his head and mouth. He looked out of his window and watched the three intruders walk away. He then telephoned the police and an ambulance. At about 0100 hours police officers were instructed to attend at the complainer's house and did so. They found the complainer there, injured, with cable ties on his wrists and tape around his neck. He gave the officers an account of what had happened, naming T. McK. and J. McK. as being involved, together with a male called M.

[13] The complainer was taken by ambulance to the Royal Alexandra Hospital, Paisley. He was found to have a 4 centimetre laceration above the left eyebrow which required 3 sutures, a 10 centimetre horizontal superficial laceration under his left eye, and a 5 centimetre laceration forming a flap under his right eye which required 6 sutures. He has also sustained a lump to the right side of his forehead approximately 4 x 3 centimetres in size. The lacerations were consistent with him having been struck with a knife. He was detained overnight for observations in Ward 22 of the Royal Alexandra Hospital. At hospital, the complainer was interviewed by the Police, and a statement was noted from him. He was shown twelve images of males including that of the accused T. McK., and the complainer identified T. McK. as one of those involved in the attack on him. He was then shown a set of images of females, including that of J. McK., and he identified her as having been involved in the attack. The complainer described T. McK. as wearing a navy blue tracksuit top and bottoms with a white stripe and crest logo and trainers. The witness can identify the accused. He described J. McK. as wearing a long white coat with a hood and a vest top with pink or orange markings, blue jeans and white trainers. He described M. as using a towel across his face to mask it. He was wearing a dark coloured anorak with a hood, and silver-grey tracksuit bottoms.

[14] It was established that J. McK. was residing at a flat in Paisley. Police Officers went to that address, arriving there at 11.30am. There they found the three now accused, T. McK., J. McK. and M. J. C. together at the flat. C. identified himself as J. McK.'s boyfriend. All three were detained in terms of Section 14 of the Criminal Procedure (Scotland) Act 1995 and taken to Paisley Police Office. They were later interviewed, cautioned and charged. They made no reply.

[15] A warrant was obtained for a search of J. McK.'s house and at about 1525 hours on Friday 8 December 2006 Police Officers went to the flat in Paisley. A full search was carried out during which the police officers recovered the following items:

1. A white coat with hood, found on top of chest of drawers in main bedroom. This was subsequently shown to the complainer and he identified the coat as that worn by J. McK. during the incident.

2. A pair of grey tracksuit bottoms found on top of the chest of drawers under the white coat in the main bedroom. These were subsequently shown to the complainer and he identified them as the bottoms worn by the person referred to as "M.".

3. A pair of black Adidas tracksuit trousers found on the floor of main bedroom. Within the rear pocket was found a cigarette packet containing £565 in cash. Within the left hand pocket there was £7.76 in coin.

[16] A forensic examination of the black tracksuit trousers was carried out, and a blood stain was identified. DNA was extracted from the bloodstain. That DNA matches the complainer's DNA. Further DNA matching that of J. McK. and M.J.C. was identified on the tracksuit trousers.

Charge (3)
[17] The locus of the incident which forms the basis of charge (3) is the flat in Paisley. This is a residential flat within a tenement block accessed by a controlled entry and common stairwell. There are front and rear communal garden areas.

[18] At about 2310 hours on Saturday 3 February 2007 the complainer, Gary McKay, and his partner, Heidi Blane, were at home when two males came to the front door and knocked. Mr McKay went to the door and shouted "Who is it?" He then heard a male voice say "I am looking for M.." The complainer did not recognise the voice and looked out of the spy hole fitted in his door. The glass of the spy hole was damaged and limited his view, but he could see a figure dressed in a black jacket and white tracksuit trousers. Mr McKay said "You have the wrong house." He then heard a second male voice, who appeared to be instructing the first male and who then stated "I am looking for M. S". Again the second male appeared to speak to the first male. Mr McKay believing the male to be attempting to source drugs stated that the only M. he knew was at an address in Paisley (M. McK., a relative of T. McK. and someone known to him). Both males then left the doorway and Mr McKay made his way to the front living room window from which he looked into the street and observed a male wearing a black jacket and white tracksuit trousers making his way towards the address. Mr McKay believed the male to be holding his jacket collar at his face or walking with his face turned away in an effort to conceal his identity.

[19] About 2330 hours, same day, Mr McKay and Ms Blane were still within their home watching television with their children sleeping in the bedroom, when their front door was forced open by two males in possession of large kitchen knives. Both males were wearing hats and scarves which covered their faces. Immediately Mr McKay rose to his feet and ran into the kitchen pursued by the two males. The first male that entered the kitchen area was wearing a black jacket and white tracksuit trousers. Mr McKay threw a glass containing orange juice at this male. Both males then began to stab at Mr McKay, who attempted to struggle with the males. He kicked out at the second male. The second male's scarf fell from his face and McKay immediately recognised him as T. McK.. McKay kicked out at McK., grabbed at him and attempted to force him to the ground. During this the male in the black jacket and the white tracksuit trousers was stabbing at Mr McKay. McKay was on his side on the floor of the kitchen. He was still holding the male in the black jacket, while attempting to pull himself up. At this point he felt the male stab him in the thigh.

[20] T. McK., who had been knocked to the floor, rose to his feet and stabbed McKay in the stomach. T. McK. then fled from the kitchen and the locus. Throughout the assault the witness McKay was aware of T. McK. and the other male was shouting at him, the phrases included "Ya fucking bastard".

[21] The male in the black jacket and white tracksuit trousers remained in the kitchen after T. McK. fled. He turned to Ms Blane, who had remained at the door of the kitchen door, hysterical. The male in the black jacket stated to Blane "Ya cow". At this point McKay realised that he was seriously injured but nevertheless picked up a knife in an effort to protect Ms Blane. He dropped the knife moments later when the male in the black jacket and the white tracksuit trousers fled from the house. Ms Blane then telephoned the witness Mr McKay's mother and an ambulance.

[22] The police were notified at 2334 hours, on the same day. An ambulance crew attended the locus and Mr McKay was conveyed to the Royal Alexandra Hospital where he was admitted to the resuscitation treatment room and stabilised. He was thereafter admitted to Ward 24 where he was being treated for twelve stab wounds, one stab wound to the chest, which caused a collapsed lung, eleven further stab wounds in the abdominal area, limb and chest and two fractured ribs.

[23] Both witnesses Mr McKay and Ms Blane are able to identify T. McK. as one of the men who forced their way into their house and assaulted the complainer.

Discussion
[24] The accumulation of outstanding charges in one indictment is usual. Charges will be separated very rarely and only in exceptional circumstances where a very strong and special reason is shown: HMA v Bickerstaff 1926 JC 65 at 80. It is normally assumed that it is in the public interest that analogous matters should be tried together where possible: Johnston v HMA 1996 SCCR 808 at 816C. A motion to separate charges will only be granted if there is a material risk of real prejudice: Reid v HMA 1984 SLT 391, Jackson v HMA 1992 SLT 370 at 373, Toner v HMA 1995 SCCR 697. In Reid v HMA supra, which has been consistently followed, Lord Justice General Emslie put the matter this way, at 392:

"For centuries it has been the practice to try all outstanding charges against a single accused on a single indictment at the same time. It is pointed out in Hume, ii, 172: 'This is allowed, not only for the sake of doing justice as expeditiously, and with as little expense and trouble as may be to the public, but also (provided it is kept within certain bounds) for the advantage of the panel; that he may be relieved of a long confinement, and of the anxiety and distress which would attend a series of successive trials.' It is only where a material risk of real prejudice to the accused can be demonstrated that a trial judge will normally be justified in granting a motion for separation of trials and, let it be said at once, it simply will not do for an accused to contend as was done in this case, that such a material risk of real prejudice arises merely because the charges in an indictment are of different places and circumstances. If that proposition were to be accepted it would also have to be accepted that several charges of crimes of the same kind, eg theft by housebreaking committed at different times and places and in different circumstances must carry an even greater risk of prejudice and should never be tried together."

[25] It was because Mr Moir saw there as being a material risk of real prejudice if the Minuter were obliged to stand trial on an indictment containing both charges (1) and (3) that he made his motion. The Advocate Depute did not seek to argue that there would not be such a risk if the premise from which Mr Moir's submission proceeded were correct: that the Crown simply cannot prove charge (1) on the evidence currently available to it. Of course the prejudice as to the Minuter's position in relation to charge (3) is, if anything, greater if the Crown can prove charge (1) than if, on a proper understanding of the available evidence, it cannot. If there is a sufficiency of evidence on both charges then both will go to the jury and everything adverse to the Minuter which has been led in support of charge (1) will be available to the jury, albeit that they will be directed to consider each charge separately. However, that is a prejudice that Mr Moir would feel constrained to accept as a consequence of the usual practice, referred to by Lord Emslie, of trying all outstanding charges against an accused on a single indictment. What he complains about is unfairness or oppression: the Crown libelling a charge which it knows it cannot prove simply in order to prejudice the minds of the jury against the Minuter in respect of the other charge. This would seem to be an entirely legitimate position for Mr Moir to adopt. There will be cases where the Crown must be allowed to libel what are sometimes referred to as "evidential" charges, that is charges which probably will not be proved but which are required to give notice that evidence may be led pointing to an incidental offence because without them it would be open to an accused to object to the leading of evidence which is part of the narrative associated with the important charge or charges on the indictment. However that consideration has no application to the case where the Crown libel two or more unconnected charges, one of which has no prospect whatsoever of being proved, for example by reason of absence of corroboration. Where the purpose of libelling such a charge can only be to prejudice the jury against the accused then it would seem to be clearly oppressive for the Crown so to act and that is something which can be controlled by the court by ordering a separation of charges.

[26] The question therefore is whether, on the most favourable view of the evidence which it is agreed is currently available to it, can the Crown prove charge (1).Richard Manser can give an account fully implicating the Minuter in everything libelled in the charge. The question therefore comes to be whether, as the Advocate Depute submitted, there was corroboration of that account, either in the circumstance of the Minuter being found by police, together with the second accused in the house of the third accused or by virtue of the doctrine associated with HMA v Moorov.

[27] In my opinion, taking the evidence available to the Crown at its very highest and looking to such inferences as might be drawn from it, which is the approach that Mr Moir accepted that I should taken, there is corroboration of Richard Manser's account of the participation of the Minuter in the offence libelled as charge (1) That is so because I consider that a jury might find in the circumstances of charges (1) and (3) sufficient interrelation of character, circumstances and time to allow them to apply what is usually referred to as the Moorov doctrine but also because I consider that there is just sufficient circumstantial evidence to allow charge (1) to be corroborated if looked at in isolation. Of course it is not necessarily a case of either or. If I am correct in my conclusion as to the applicability of the Moorov doctrine and if I am correct in finding materially incriminative evidence in the circumstances of the Minuter being in the third accused's house some ten and a half hours after the assault on Richard Manser then the jury would be entitled to look at all of that with a view to determining whether charge (1) has been established to their satisfaction on the basis of corroborated evidence.

[28] Turning first to why I consider that charge (1) can be corroborated without reference to the evidence relevant to charge (3), I would observe that there is no question but that there is evidence to corroborate the complainer's account of being tied up and assaulted and of his bank card being used around midnight on 6 to 7 December 2006. He reported the event to the police immediately and when police attended he was found to have cable ties on his wrists and tape around his neck. He was injured in a manner that was consistent with him having been struck with a knife. There is evidence of withdrawals being made from his bank account. The offence being capable of corroboration, the Crown must also corroborate who was or were responsible. The complainer states that there were three assailants, two of whom he can identify: the Minuter and the third accused. He is able to ascribe a name to the third assailant: "M.". The finding of a white coat in the third accused's house and the appearance on CCTV of a person matching the general description of J. McK., wearing a white coat, on Neilston Road at around the time of the final ATM withdrawal provide corroboration for the third accused's involvement at least to the extent of use of the bank card. In addition there is the finding of black tracksuit trousers in the third accused's house with DNA traces originating from the third accused (and the second accused) and blood stains originating from the complainer, which had a cigarette packet containing £565 in the left hand pocket. The second accused's first name, "M.", his admission that he was the third accused's boyfriend and the DNA trace on the black tracksuit trousers are potentially incriminating of him. Thus, a number of the details of the complainer's account are capable of being confirmed from independent sources of evidence. Accordingly, assuming that the jury found the complainer to be credible and reliable in his account, they could find an independent check for many of elements in that account. The critical elements for present purposes are the features that there were three assailants and that the third assailant was the Minuter. The only check for these elements is the finding of the Minuter in the third accused's house in the company of the second and third accused and no other person. In my opinion that is a piece of incriminating circumstantial evidence that is available to corroborate the complainer's account of the involvement of the Minuter in the assault and robbery. I would see that as being beyond argument if the Minuter had been seen obviously in the company of the other two accused very shortly after the complainer reported them as leaving his house. Mr Moir emphasised that that was not the position here. Fully ten hours had passed after the complainer reported them as having left and before the police found the three together. I accept that that is a significant period of time, although in assessing that I consider that a jury might infer that the three had gone to the third accused's house to sleep the night. The passage of time undoubtedly weakens the force of the circumstance of the Minuter being found with the two others who can be taken for the purposes of the present argument to be two of the complainer's assailants but the time period and the surrounding circumstances, which include the finding of money in the house and the fact that only these three and no others were there together, are such that, in my opinion a jury could find the necessary corroboration.

[29] I also consider that the doctrine of mutual corroboration is available to the Crown. The Advocate Depute pointed to the similarities between the circumstances of charge (1) and those of charge (3): the events were close in time and place, as was conceded; both involved complainers who knew the Minuter; both had the feature of a preliminary contact as between one of the assailants and the complainer; both involved the sudden breaking in of a door and a forcible entry into the house; and both involved a violent attack on an unarmed complainer by two men with knives, one of whom was positively identified as the Minuter. Mr Moir, for his part, emphasised the differences: charge (1) was a robbery; it involved what he described as the deliberate torture of the complainer; and it seemed to have as part of its motive revenge or retribution. These were not features of charge (3). Parties were agreed about the applicable law and the principal authorities: Moorov v HMA supra, Ogg v HMA 1938 JC 152, Dodds v HMA 2002 SLT 1058. In Moorov v HMA supra at 73 the Lord Justice General said this:

"Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connexion 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."

In Ogg v HMA supra at 157 and 158 the Lord Justice-Clerk said this:

"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 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. ... 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 conduct persistently pursued by the accused person. ... 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 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."

The difficulty of course lies in applying the agreed principle to the marginal case which I would regard the present as an example. There are similarities as between charges (1) and (3) but, as Mr Moir emphasised, there are dissimilarities and similarity, of course, is not enough. The similar features must be such as to point to an inter-relationship which allows the inference that they are instances of one course of conduct. In the present case, taking matters at their best for the Crown, I consider that that inference can be drawn.

[30] I would accordingly refuse the motion to separate charges.