APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Wheatley Lord Bracadale	[2009] HCJAC 105 Appeal No: XC569/08 OPINION OF THE COURT delivered by LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION by FAROOQ HUSSAIN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Shead; Ward & Company, Solicitors, Perth

Alt: P. Ferguson, Q.C., A.D.; Crown Agent

18 December 2009

The background circumstances

[1] The appellant in this appeal was convicted on charges (2), (3) and (4) in the indictment which he faced. Charges (2) and (3) were the subject of amendments made on the unopposed motion of the Crown at the close of the defence case. The terms of the charges on which the appellant was convicted are as follows:

"(2) On 26 November 2002 at Al Farooq Tandoori Restaurant, York Place, Perth, you did assault PVCD ... and did place your hand under her top, touch her breasts, rub her leg and near her private parts, push her against a filing cabinet or similar and did fondle her breasts;

(3) On 1 or 2 July 2007 at 147 Crieff Road, Perth, you did assault STT ... and did massage her shoulders, place your hands inside her top and bra and fondle her breasts, place your hand on her waist and buttocks; and

(4) On 4 August 2007, at 1 Methven Buildings, 36 New Row, Perth, you did assault said STT and did fondle her breasts and nipples, lift her top and bra exposing her breasts, place your mouth on her breasts and kiss, lick and suck her nipples, place your hand inside her trousers and underwear, fondle her private parts and insert your finger into her vagina."

[2] On 27 August 2008, the Sheriff imposed an extended sentence under Section 210A of the Criminal Procedure (Scotland) Act 1975 of 75 months, comprising a custodial term of 45 months and an extension period of 30 months.

[3] The evidence on each of the charges on which the appellant was convicted, as summarised by the Sheriff, was as follows. In relation to charge (2), Miss PVCD was employed on a casual basis by the appellant. On the evening of 26 November 2002 she was involved in bringing Christmas decorations from an upstairs office. In the course of this operation, the appellant asked her to look at the computer. Whilst she sat at the computer, the appellant rubbed her upper leg. She told the appellant to get off, but he did not do so. Miss PVCD tried to get up. The appellant pushed her onto a filing cabinet and tried to put his hands down her trousers. He succeeded in getting his hands near her private parts. The appellant then moved his hands under her top and bra and groped her breasts. Miss PVCD was very upset and ran from the premises into York Place, Perth. She was taken home and was persuaded to write an account down of the event. That account was made a Crown production. She was so upset by what had happened that her mother did not contact the police until the following day.

[4] In relation to charge (3), Miss STT was employed by the appellant on a casual basis. At the beginning of July 2007, she was cleaning upstairs premises when the appellant came behind her. He put his hands around her waist and touched her buttocks. He then asked her to sit with him on a couch and tried to cuddle her. The appellant was then able to put his hands under her top and bra and fondled her breasts. Miss STT was upset by this conduct and told one of her fellow employees and her parents of it. They did not believe her.

[5] As regards charge (4), on 4 August 2007, Miss STT was working in a flat at New Row, Perth. She agreed to the appellant massaging her hands as they were sore. She then agreed to the appellant massaging her neck. His hands then went lower and moved to her front. The appellant placed his hands under her top and bra and fondled her breasts. Miss STT tried to get away, but was unable to do so. The appellant then lifted her top and sucked, licked and kissed her breasts. The appellant then moved his hands down her trousers and underwear. He inserted his finger into her vagina. Miss STT was very scared. She eventually managed to get up. She texted her mother, who met her in the street. Miss STT was extremely distressed as a result of this incident. She told her mother what had happened. The appellant's DNA was recovered from Miss STT's breasts.

[6] The appellant's position in relation to these allegations was that the complainers had made up their accounts. The two girls had been in trouble. In relation to charge 4, the appellant alleged that Miss STT had demanded more money than she was due from him. When he refused to pay what she demanded, she said that she would report him to the police. She lifted her top and exposed her breasts. The appellant was so disgusted by her behaviour that he spat at her. This explained the presence of his DNA on her breasts. The appellant had been detained on 4 August 2007 and interviewed in relation to the allegation involving Miss STT that day. Among other things the appellant said then: "I should not have let her be there. Her dad says she makes up stories and tells lies."

[7] It should be noted that prior to the trial, the appellant lodged an application under Section 275(1) of the 1995 Act, which was considered by the Sheriff on 3 July 2008. In that application the appellant sought a decision by the Court to allow evidence on several matters. For the present purposes it is sufficient to note that, in paragraph 1(a) of the application, the following evidence was sought to be admitted or elicited: (a) whether the father of STT, complainer in charges (3) and (4) has stated that said STT "makes stories up". The Sheriff decided that that material did not comply with the requirements of Section 275(1)(a) of the 1995 Act in respect that it did not relate to a specific occurrence or occurrences. Further, he considered that that part of the application was so vague that the criteria set forth in Section 275 could not be applied to it. In relation to this matter, it should be recorded that evidence of the interview between the appellant and the police following his detention was led as part of the Crown case. In that interview, at pages 3 and 4 the appellant was said to have told the interviewing police officers that Miss STT's stepfather said that she made up stories.

[8] It should also be recorded that at the close of the Crown case in the trial of the appellant, the solicitor for the appellant made a submission of no case to answer in regard to the offences specified in charges (2) and (3). This submission was founded on the period of time between the two incidents, which occurred on 26 November 2002 and 1 or 2 July 2007 respectively. After hearing debate on the matter, the Sheriff repelled this submission.

The grounds of appeal

[9] The grounds of appeal against conviction which are now before the Court are in the following terms:

"2. It is submitted that the Sheriff erred in rejecting the defence submission of no case to answer in charges 2 and 3. Proof of the charges required the relevant operation of the Moorov doctrine between two incidents, one of which took place on 26 November 2002 and the other on 1 July 2007. The defence submission was that the period of four years and seven months between incidents, and in a case where there were only two complainers, was too great an interval for the proper application of the Moorov doctrine. Accordingly there has been a miscarriage of justice.

3. Further, it is submitted that, the Sheriff's decision to allow charges 2 and 3 to remain before the jury was of material significance in the jury's consideration of charge 4. As charge 2 was still before the jury, it was open to the jury in their deliberations to consider whether the complainer's testimony in Charge 2 afforded support to that of the complainer in charge 4. Accordingly it is submitted that, in respect also of charge 4, a miscarriage of justice has occurred.

4. It is submitted that the Sheriff erred in his decision, prior to the commencement of the trial, to refuse to allow paragraph 1(a) of the Section 275 application made by the appellant. In his statement to the police the appellant had informed police officers that the complainer's father had told him that she 'makes stories up'. The Sheriff's refusal to allow paragraph 1(a) of the Section 275 application had the result that the appellant was unable to give evidence to amplify the statement which he had made to the police or indeed to ask the complainer's father whether he had made such a statement, and, if so, why. Accordingly it is submitted that this refusal denied the appellant the opportunity of testing important evidence. It is submitted that the Sheriff's decision to refuse evidence on this issue adversely affected the credibility of the appellant while he was giving evidence and also prevented the defence in exploring significant issues in the cross-examination of the complainer. Given that the proof of guilt depended upon the jury's assessment of the credibility, both of appellant and complainer, it is submitted that the Sheriff's decision in this regard had a material effect upon the jury's deliberations and accordingly that a miscarriage of justice has taken place has also occurred in respect of this matter." (sic)

Submissions of the appellant

[10] Counsel for the appellant indicated that he intended to found only on grounds of appeal 2, 3 and 4. Grounds 2 and 3 were closely related. There was sufficient evidence to support charges (2) and (3) only if the Moorov doctrine could be applied as between those charges. Counsel then proceeded to draw attention to several authorities bearing upon the application of the Moorov doctrine. These included Dodds v HMA 2002 SCCR 838, particularly at pages 843 to 856; Russell v HMA 1990 S.C.C.R. 18, particularly at pages 23 and 24; Sinder v HMA 2003 S.C.C.R. 271 and McRae v HMA 2005 J.C.182. The Sheriff had drawn attention to this latter case in his Report at page 8.

[11] In the present case the gap of time between the incidents referred to in charges (2) and (3) was four years seven months. The appellant's submission was that while the Court had never been prepared to lay down any specific time limit for the operation of the Moorov doctrine, much depended upon the similarities and dis-similarities of the relevant incidents. Here there was a substantial gap of time. The similarities between the two incidents were not compelling; it could not properly be concluded that these incidents demonstrated a continuing course of criminal conduct. The similarities were not sufficient to outweigh the long period of time involved. It followed that the convictions on charges (2) and (3) should be quashed, since the submission of no case to answer on those charges had been wrongly rejected. That amounted to a miscarriage of justice.

[12] Counsel for the appellant next supported ground of appeal 3. This submission proceeded upon the premise that the Sheriff had erred in allowing charges (2) and (3) to remain before the jury. Upon that basis, there was a miscarriage of justice in relation to the appellant's conviction on charge (4). If one looked at the practical realities of the trial, the conviction on charge (4) ought to be quashed because it had been reached upon the basis of the application of the Moorov doctrine, at least in part. In that connection counsel referred to the Sheriff's observations at pages 30 to 31 of the transcript of his charge. The jury had held that the Moorov doctrine was applicable including in relation to charge (4). It would be illogical to suppose that the jury had not applied the Moorov doctrine to charge (4). The Crown had sought its application to charges (2), (3) and (4). It was not clear that the jury would have convicted the appellant on charge (4) without applying the Moorov doctrine. It could not be said that the jury would have convicted on charge (4) on the basis of the independent evidence relating to it. They must have concluded that the complainer had been credible and reliable in relation to charge (4). It could not be said that the jury would inevitably have convicted on that charge on the independent evidence alone. Accordingly, if ground of appeal 2 was well founded, the conviction on charge 4 should also be quashed. If ground of appeal 2 failed, plainly ground 3 would also fail.

[13] Turning to ground of appeal 4, counsel pointed out that this ground raised issues regarding the application of Sections 274 and 275 to the circumstances of this case, in particular in relation to the complainer STT. The case of MM (No. 2) v HMA 2007 SCCR 159 showed that, in connection with a ground of this kind, it was sufficient to show that the loss of an opportunity had occurred to put questions which might have elicited cogent answers; it was not necessary to show that those particular answers would in fact have been elicited had the questioning concerned been allowed. In that connection counsel referred to the Opinion of Lord Johnston at paragraphs 23, 29, 33 to 35; of Lord Eassie at paragraphs 41 to 43; and of Lord Marnoch at paragraphs 45 to 49.

[14] The Privy Council had also considered these matters in HMA v DS 2007 SCCR 222, in which a pre-trial issue had been involved. Counsel referred particularly to the Opinion of Lord Hope of Craighead, paragraphs 25, 27, 28 and 44 to 47; and that of Lord Rodger of Earlsferry, paragraphs 71 to 78. In paragraphs 45 and 46, Lord Hope of Craighead agreed with the view taken by Lord Marnoch in MM (No. 2) v HMA in relation to the meaning of the word "behaviour" in Section 274(1)(b) of the 1995 Act.

[15] Counsel went on then to focus upon the circumstances of the present case. He recognised that the material concerned might or might not have been caught by the terms of Section 274 of the 1995 Act. It was significant to note the evidence which had been given by the father of the complainer SST, WT. At pages 9 to 14 of the transcript of his evidence he had testified that when his daughter made her first complaint, he could not believe it. However, the second occasion on which she made such a complaint was different; the allegation she made then was of a more serious character; further, at the time in question she was shaking and crying. Because of the view taken by the Sheriff, this witness had not been questioned as to what he had said about his daughter allegedly, as specified by the appellant in his police interview. The Procurator Fiscal had opened up certain areas of enquiry with this witness, but there was, it was submitted, a lack of balance, on account of the Sheriff's decision.

[16] Counsel submitted that, in connection with his decision-making in terms of Sections 274 and 275 of the 1995 Act, the Sheriff had erred. He ought to have held that the application under Section 274 had been unnecessary in relation to the matter in question and to have rejected it upon that ground. Had the Sheriff acted in that way, the questions which had been excluded would have been able to be asked. The Sheriff had erred in not refusing the application in relation to the material concerned as unnecessary. He conceded that this particular ground of appeal should have focused this point, but had not done so. The position was that, had the Sheriff acted correctly, the questions that were not put would have been asked. Counsel conceded that there was an issue as to whether the questions concerned would or would not have been objectionable at common law as questions seeking to elicit material that was relevant only to the credibility of another witness. If this ground of appeal was sound, the appellant's convictions on all of the charges would require to be quashed.

The submissions of the Crown

[17] The Advocate depute began by dealing with ground of appeal 2. The essence of this ground of appeal was that the gap of time between charges (2) and (3) was too great an interval for the proper application of the Moorov doctrine. He submitted that that contention was erroneous. The law did not recognise that any particular gap of time was too great for this purpose; what had to be considered was whether a jury would be entitled to apply the Moorov doctrine having regard to the whole circumstances of the case and in particular to the similarities between the offences under consideration. He drew to our attention Cannell v HMA 2009 SCCR 207, particularly paragraphs 33 to 34 of the Opinion of the Court, delivered by Lady Paton. He also relied on Stewart v HMA 2007 SCCR 303 in the context of this appeal; the Court had to be concerned with whether the jury were entitled to apply the Moorov doctrine. Whether they made the necessary inferences, if they were so entitled, was a matter for them. In the present case the Sheriff had been correct in concluding that the application of the doctrine should be left to the jury.

[18] He proceeded then to examine the facts of the present case. These had been set forth in the Sheriff's Report. In charge (2) what had been alleged was principally the fondling of the breasts of the complainer, who was 15 years old at the material time. As regards charge (3), once again, among the matters alleged was the fondling of the breasts of the complainer, who was 14 years old at the material time. Charge (4) involved, among other matters, the fondling of the breasts of the same complainer. There were therefore strong similarities between the nature of the offences alleged. Furthermore, the surrounding circumstances demonstrated striking similarities. These included the fact that both girls had been casual workers for the appellant; the offences had been said to have occurred in properties over which he had control; they occurred at times when the girls had been alone in his company; there was the feature of the touching of their breasts, already referred to; furthermore, there had been alleged interference with the girls in the lower parts of their bodies; and, as the sheriff pointed out at page 8 of his Report, both girls were vulnerable in one way or another. In these circumstances it was submitted that the Sheriff had decided correctly that the jury would be entitled to apply the doctrine if they thought that appropriate in view of the clear similarities between the offences alleged, despite the considerable gap of time between the events to which charges (2) and (3) and (4) related.

[19] Turning to the appellant's submissions made in support of ground of appeal 3, the Advocate depute pointed out that this ground depended upon the validity of ground of appeal 2 which, in his submission, was bad. If ground 2 were rejected, so also should be ground 3. In any event, there was strong independent evidence to support the conviction on charge (4). In that connection, the Advocate depute mentioned the material referred to on page 4 of the Sheriff's report which included marks noted on the complainer's breasts and the recovery of the appellant's DNA from those breasts. Furthermore, the Sheriff had indicated at pages 30 and 31 of his charge that charge (4) stood on its own. There was no reason to believe that the jury had proceeded upon a Moorov basis in relation to charge (4). No authority had been cited to demonstrate that there was a miscarriage of justice in relation to that charge, upon the assumption that the Sheriff's approach to the application of the Moorov doctrine in relation to charges (2) and (3) was erroneous, which it was not.

[20] Turning to the submissions made on ground of appeal 4, the Advocate depute observed that the terms of the ground of appeal as they stood could not be supported. However, recognising that the material in issue was that described in paragraph 1(a) of the appellant's application under Section 275(1) of the 1995 Act, it was submitted that the Sheriff's decision had been correct, having regard to Mackay v HMA 2004 S.C.C.R. 478. However, standing back from that, the Advocate depute accepted that Sections 274 and 275 of the 1995 Act were not germane to the evidence in question. The important issue was whether the statement referred to was one which could have been elicited at common law. The question was whether a lay witness could be asked to express an opinion on the credibility of another witness. It was submitted that such a course would have been incompetent and irrelevant. The Advocate depute relied upon Criminal Procedure, Renton & Brown at page 510/7, paragraph 24.162.1. He also relied upon HMA v Grimmond 2001 S.C.C.R. 708, paragraphs 10 and 11. What was said in this latter case represented the common law. Reliance was also placed on Mackay v HMA, paragraph 9. In the light of these authorities the common law would not have allowed the evidence under consideration to have been elicited. If that was correct, then the decision of the Sheriff had had no consequences in the trial. He had not wrongly excluded evidence which otherwise could properly have been led. Accordingly, there was no miscarriage of justice.

The decision

[21] We deal first with the issue raised in ground of appeal 2. The contention there was that the period of four years and seven months between the incidents to which charges (2) and (3) relate was too great for the proper application of the Moorov doctrine. In view of the way in which that ground of appeal is formulated, it appears necessary, once again, to emphasise that the period of time between incidents to which the doctrine might relate is but one factor to be considered in determining whether a jury would be entitled to apply the doctrine. In Dodds v HMA in paragraph 9, the Lord Justice Clerk (Gill) said:

"The extent of the period of time within which a Moorov similarity can be applied is not and cannot be fixed by rule of law. If the circumstances of the commission of two crimes are of particularly unusual similarity, it may be that corroboration can be found to exist even if the charges are separated by a long period of time. Lord Sands specifically canvassed such a case in Moorov (at page 88) in his well-known George Bernard Shaw example."

An identical view was expressed by Lord Kirkwood in paragraph 5 of his Opinion in that case:

"In my opinion, no hard and fast rule can be laid down as to when the time interval between offences becomes too long to enable Moorov to be applied. What can be said is that the more unusual and striking are the similarities between the offences founded on by the Crown, then the greater the latitude in relation to time that may be permitted. However, the overriding consideration will be whether the evidence as a whole establishes that the offences constituted a course of criminal conduct on the part of the accused."

Lord Osborne at paragraph 35 in that case reiterated the same view saying:

"In the light of the foregoing authorities it appears to me plain that it is impossible for the Court to lay down any maximum period of time in relation to the application of the doctrine. The element of time is one of those circumstances which requires to be considered in its application. Whether any particular period of time is or is not too great for the application of the doctrine must depend on the particular circumstances of the case involved and the force of the other elements in the criterion."

In the recent case of Cannell v HMA, at paragraph 33, Lady Paton, delivering the Opinion of the Court, said:

"For present purposes, it is assumed that evidence led in support of charge (2) is to be left out of account, leading to a lapse of time between the behaviour libelled in charges (1) and (3) of at least four years, four months. As was emphasised in Dodds v HMA and Stewart v HMA there is no specific time period beyond which the Moorov doctrine cannot be applied. It is true that where the time lapse is substantial, great caution must be exercised in the application of the doctrine: Ogg v HMA. Nevertheless the similarities in character and circumstances may be so great that the evidence may, as a matter of law, properly be left to the jury for their assessment and their decision whether or not to apply the Moorov doctrine."

A similar view was expressed by Lord Justice Clerk Gill in Stewart v HMA in paragraph 23.

[22] In these circumstances, it would not be appropriate to examine the period of time involved in the present case with a view to determining whether or not it was too long for the purpose of the possible application of the Moorov doctrine. The question which has to be faced is whether, in the particular circumstances of this case, having regard to the period of time involved and the other circumstances, a jury could properly be allowed to consider the application of the doctrine. In this situation it is therefore necessary to look at the particular circumstances of this case with a view to reaching a decision on that issue. Having conducted such a consideration, we have reached the conclusion that the Sheriff was correct in deciding that the jury in this case would be entitled to apply the Moorov doctrine if they thought that appropriate. In reaching that conclusion, we have in mind the striking similarities that, on the evidence, appear to us to exist between the circumstances of charge (2) and those of charge (3). Those similarities may be summarised in this way. First of all, the complainers in these two charges were both relatively young girls at the material time, who were engaged by the appellant as casual workers. Each of the relevant offences occurred in premises which were controlled by the appellant. The evidence of the complainers in each case was that, when the offences were committed, they were alone in company with the appellant. Furthermore, as was pointed out by the Sheriff at page 8 of his Report, each girl was in one way or another to be regarded as vulnerable. Coming to the manner of the commission of the offences, the similarity becomes ever more striking. In each case, the appellant is said to have placed his hand under the top of the complainer and then proceeded to fondle her breasts. In addition, in each case, the assault is said also to have involved the appellant placing his hand on lower parts of the complainer's body. Having regard to these similarities, despite the lengthy period of time separating the two charges, we have been persuaded that the Sheriff was correct in directing the jury that they were entitled to apply the Moorov doctrine between the charges concerned. We therefore reject this ground of appeal.

[23] Turning to ground of appeal 3, it was acknowledged by counsel for the appellant, as he had to do, that this ground proceeded upon the premise that ground of appeal 2 was sound. Since we have held that it was not and must be rejected, it follows that ground 3 also falls. It is therefore unnecessary for us to consider the further points that were advanced in support of this ground of appeal. However, it is worth noting that, at pages 30 and 31 of his Charge to the jury, the Sheriff directed them that there was sufficient evidence in law for them to find this charge proved. He expanded that by saying that the reason for that was that the account of ST was corroborated by the DNA evidence and also by the medical evidence. He then went on:

"Accordingly, you do not require to use the rule to which I have just referred to convict the accused of charge (4). It is, of course, a matter for you to consider all the evidence in respect of charge (4) and ultimately decide if you are satisfied beyond reasonable doubt that that charge is proved."

That passage appears to us to indicate that the jury were being invited to approach the issue of whether the Crown had proved the guilt of the appellant on charge (4) beyond reasonable doubt upon the basis of direct evidence before them that related to that charge. If that were so, in our view, the error alleged under ground of appeal 2, even if made out, would not have been productive of a miscarriage of justice in relation to charge (4).

[24] As regards ground of appeal 4, it became increasingly apparent during the course of the discussion before us that the ground of appeal, as formulated, was misconceived. Counsel for the appellant, in the end, conceded that the Sheriff's error consisted not in what was alleged in the ground of appeal, but rather in the fact that the Sheriff erroneously concluded that Section 274(1) could not apply to the material specified in paragraph 1(a) of the application under Section 275(1) of the 1995 Act.

[25] In HMA v DS, in paragraph 46, Lord Hope of Craighead found the view taken by Lord Marnoch in MM (No. 2) v HMA that the word "behaviour" in Section 274(1)(c) did not extend to evidence that was directed simply to words that the complainer might have said to some third party, which bore on her credibility or reliability, to be correct. On this basis, we conclude that the material referred to in paragraph 1(a) of the appellant's application under Section 275(1) of the 1995 Act was not material the eliciting of which was prohibited by Section 274(1). The appellant's application, in so far as it related to that material, should have been refused as unnecessary. Thus the whole premise underlying ground of appeal 3 can be seen to be false.

[26] Proceeding in this way, the question must be asked whether in any event, at common law, the material referred to could have been elicited. In the light of the authorities cited to us, we conclude that it could not. In our view, a lay witness cannot be asked to express an opinion on the credibility of another witness. Thus, if the step-father of STT had been asked whether she "makes stories up", that question would have been objectionable as incompetent. In that connection, we refer to HMA v Grimmond, paragraphs 10 and 11; Mackay v HMA at paragraph 9; Walker & Walker, The Law of Evidence in Scotland, 3^rd Ed., page 6 and Renton & Brown, Criminal Procedure, 6^th Ed., paragraph 24.1.62.1.

[27] What follows from this is that the Sheriff's decision, which was in any event founded upon a false premise to the effect that Section 274(1) had application to the material under consideration, has had no consequence in the circumstances of this case. In that situation, it cannot be said that any miscarriage of justice has occurred as a result of his decision. In all these circumstances, we reject this ground of appeal.

[28] Since we have concluded that all of the grounds of appeal advanced on behalf of the appellant possess no merit, the appeal against conviction must be refused.