APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Emslie Lord Brodie	[2011] HCJAC 52 Appeal No: XC700/10 OPINION OF THE LORD JUSTICE CLERK In the Appeal by AK Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: I Paterson, sol adv; Paterson Bell, Edinburgh

For the Crown: Scullion, AD; Crown Agent

20 May 2011

The conviction

[1] The appellant was convicted at Dunfermline High Court on 13 September 2010 of the following charges:

"(1) on various occasions between 23 January 1988 and 22 January 1995, both dates inclusive, at [locus] you [AK] did use lewd, indecent and libidinous practices and behaviour towards [M] ... your nephew ... and did; (1) enter his bedroom, place your hands under his bed covers, place your hand inside his clothing, handle his private member and masturbate him, masturbate in his presence, and (2) seize hold of him, struggle with him, attempt to insert your private member into his hinder parts and attempt to have unnatural carnal connection with him; ...

(4) on 30 November 2008 at [same locus] and within a vehicle outside [same locus] you [AK] did use lewd, indecent and libidinous practices and behaviour towards [D] ... your nephew ... then aged 12 years, and did handle his private member and place your hands inside his clothing and touch him on the body."

Charge (2) was a charge of indecent assault against [M]. It was withdrawn at the end of the Crown case. Charge (3) was a charge of lewd, indecent and libidinous practices against the complainers' sister, [A]. The jury acquitted the appellant on this charge.

The trial

[2] The complainer [M] spoke to the acts libelled in charge (1) in all of its particulars. Those acts began when he was aged about 10 or 101/2 years old and ended when he was about 13.

[3] The complainer [D] was about 15 years younger than [M]. He spoke to the acts libelled in charge (4). He said inter alia that, while abusing him, the appellant kept saying "I've missed you, [M]," to which he replied "I'm [D]." [D] had been five years old, or younger, when he had last been at the appellant's house.

[4] In relation to these charges, there is no other evidence that is relevant to the point in this appeal.

[5] The defence made a submission of no case to answer on the basis that the Moorov principle could not apply in relation to charges (1), (2) and (4). The trial judge repelled the submission.

[6] The trial judge gave the jury general directions on the nature of the Moorov principle. He then explained that they could apply it and return verdicts of guilty if they accepted the evidence of at least two of the three complainers. He canvassed various ways in which that could come about. He then considered how Moorov could apply between charges (1) and (2). He emphasised the importance of the interval of time between those charges, namely 8 years and a few months and commented that "in general it would be very difficult to think of a time lapse of this length as being consistent with a single course of conduct."

[7] The trial judge then directed the jury on the approach that they should take in considering charge (1) along with charge (4). This is what he said.

"The evidence given by [M] in relation to charge 1 and by [D] in relation to charge 4 would be capable, taken together, of providing corroboration for each of charges 1 and 4. Again, you would need to look at this evidence as a whole, you would take account of any similarities and you would take account of any dissimilarities. But of course, in this example, the issue of lapse of time would be an even more important consideration. The time lapse between the end of the conduct described in charge 1 and the date of the conduct described in charge 4 is a period of 13 years and a few months. Now, barring the presence of some extraordinary feature it would not be possible to think of a time lapse of that order as being consistent with a single course of conduct. But the Crown's contention is that such an extraordinary feature is present in the circumstances of this case and they say that you can see that extraordinary feature in a particular combination of circumstances. They point to the evidence firstly that [M] was 13 when the abuse of him stopped. Secondly, they point to the evidence that the accused had no opportunity to abuse [D] for many years up until the visit in November of 2008 when he was aged 12 , and thirdly, they point to the evidence that when the accused abused [D] he repeatedly said "I've missed you [M]". Now the Crown's contention is that in the combination of these facts you can see evidence of not just of what the accused was doing but also of what was in his mind at the time, and they say that that combination of evidence illuminating these two features provides clear evidence of a[n] underlying single course of conduct. Well that's the Crown's contention. It will of course be up to you to decide what to make of any of the evidence led about these matters. But before you could even consider using the doctrine of mutual corroboration as between charges 1 and 4 you would need to be satisfied that the visit of November 2008 provided the accused with the first opportunity of involving [D] in a course of conduct of this sort and you would need to accept the evidence given by [D] of what the accused said to him at that time, namely "I've missed you [M]". If having examined all of that evidence you come to be satisfied that the crimes described in each of charges 1 and 4 are so closely linked by their character, the circumstances of their commission and time as to bind them together as parts of a course of criminal conduct systematically pursued by the accused then the evidence of [M] and the evidence of [D] can each be sufficiently corroborated by the evidence of the other. Just as before though it would be for you to decide whether the evidence given by these two witnesses was credible and reliable, whether the necessary link in time, character and circumstance had been established and whether the rule should be applied. You will appreciate I think from what I have just said what importance there is in [D's] evidence as to comments made by the accused for the purposes of considering charge 1 alongside charge 4, in other words looking only to the evidence given by [A] and [D], then the evidence as to what [the appellant] said would be of no assistance to that exercise. The evidence given by [D] as to what [the appellant] said to him only has value in the example of considering whether mutual corroboration is provided as between charges 1 and 4."

[8] In his report the trial judge says, inter alia

"I started from the understanding that there is no specific time period beyond which the Moorov doctrine cannot be applied. It seemed to me though that a time gap of the order of thirteen years would generally render the rule of mutual corroboration inapplicable. That would be the consequence unless there was present in the evidence some extraordinary feature which permitted the conclusion that the evidence did indeed demonstrate the existence of a course of criminal conduct systematically pursued by the accused person."

The appeal

[9] The proposition for the appellant is that the interval between the acts libelled in charge (1) and the act libelled in charge (4) was such that, in the whole circumstances of the case, the Moorov principle could not apply.

Conclusions

[10] I think that it is important to keep in mind that the Moorov principle does not apply merely because there are similarities between the conduct libelled in two or more charges in respect of time, character and circumstances. As Lord Sands described it succinctly in Moorov v HM Adv (1930 JC 68, at p 89) the similarities must be such as to indicate a "course of conduct" on the part of the accused; or, as Lord Justice General Clyde described it more floridly

"... the connection between the separate acts (indicated by the 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" (Moorov v HMA, supra, at p 73).

[11] In the present case there were certain obvious similarities in the two offences of which the jury convicted the appellant. In both cases the complainer was a nephew of the appellant. The offences were committed in the appellant's house and in a car outside it. The offences libelled in charge (1) ceased when the complainer [M] was about 13 years old. The single offence libelled in charge (4) took place when the complainer [D] was just short of 13 years old. The offence against [D] occurred at the first realistic opportunity that the appellant had had to abuse [D].

[12] Although the conduct libelled in charge (1) was more serious and occurred on numerous occasions over a period of years, there were certain similarities of detail between the conduct spoken to by [M] and that spoken to by [D].

[13] The interval between the last incident libelled in charge (1) and the incident libelled in charge (4) is, at best for the Crown, 13 years and 10 months. So far as the law reports disclose, that is a far greater interval than any that this court has had to consider in a Moorov appeal.

[14] It is common ground that there is no maximum interval of time fixed by law beyond which the Moorov principle cannot apply and that where the interval is a long one, it is necessary to consider whether there are any special features in the evidence that nonetheless make the similarities compelling (Dodds v HMA, 2003 JC 8; Stewart v HMA 2007 JC 198). I think that the advocate depute was right in saying that, solely on the similarities that I have listed the Crown could not properly have opposed this appeal.

[15] The question then is whether there is, as the trial judge has put it, some extraordinary feature in the evidence that could be said to change the whole complexion of the Crown case and entitle the jury to conclude that the evidence considered as a whole disclosed a course of conduct, notwithstanding the lengthy interval to which I have referred. In my opinion, there is.

[16] There is one significant piece of evidence that forges the link between the events libelled in charges (1) and (4), namely the evidence of [D] that on the occasion libelled in charge (4) the appellant, while abusing him, repeatedly said "I've missed you, [M]."

[17] The trial judge regarded this as the principal consideration that weighed with him in his decision to repel the submission of no case to answer. On the view that he took in repelling that submission, he gave the jury the directions that I have quoted. In my opinion, those directions were clear and accurate.

[18] In my opinion, in the quite exceptional circumstances of this case the jury were entitled to regard the appellant's repeated remark to [D] as decisive. It indicated that the appellant thought that in abusing [D] he was carrying on from where he left off. Since the jury had to consider whether on the evidence on charges (1) and (4) they could infer that there had been a course of conduct on the appellant's part, the appellant's own words to [D], when considered along with the other significant features that I have described, amply warranted that inference.

[19] It is, I think, implicit in the verdict that the jury accepted [D's] evidence about that remark and that that was the inference that they drew.

[20] I conclude therefore that the trial judge was right in repelling the submission of no case to answer. For the reasons that I have given, there was sufficient evidence to warrant the verdict appealed against. The trial judge did not misdirect the jury as to the application to it of the Moorov principle.

Disposal

[21] I propose to your Lordships that we should refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Emslie Lord Brodie	[2011] HCJAC 52 Appeal No: XC700/10 OPINION OF LORD EMSLIE In the Appeal by AK Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: I Paterson, sol adv; Paterson Bell, Edinburgh

For the Crown: Scullion, AD; Crown Agent

20 May 2011

[22] So far as I am aware, the features of this case are unprecedented. It is highly unlikely that they will ever be repeated. Accordingly, in expressing full agreement with the analysis and conclusions set out in your Lordship's opinion, I would only wish to emphasise how far the outcome of this appeal depends on its own very special facts and circumstances.

[23] Subject to established limitations, the Moorov principle is essentially straightforward: corroborated proof of a single course of criminal conduct may be achieved through the testimony of two or more individual victims of constituent offences. The key question is whether such a course of criminal conduct can, with confidence, be identified in the context of a given case, and for present purposes I am in no doubt that the trial judge was well entitled to leave that question open for determination by the jury. As it seems to me, the principle itself was not thereby stretched or extended in any way: on the contrary it was simply found applicable in what your Lordship (rightly, in my view) describes as "quite exceptional circumstances".

[24] Like your Lordship, I am satisfied that this appeal must be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Emslie Lord Brodie	[2011] HCJAC 52 Appeal No: XC700/10 OPINION OF LORD BRODIE In the Appeal by AK Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: I Paterson, sol adv; Paterson Bell, Edinburgh

For the Crown: Scullion, AD; Crown Agent

20 May 2011

[25] For the reasons given by your Lordship in the chair, I agree that the appeal should be refused.