Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC42

HCA/2015-000530XC

Lord Brodie

Lord Bracadale

Lady Cosgrove

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST CONVICTION

by

KH

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Keenan, sol adv;  Capital Defence Lawyers, Edinburgh for Allans, Solicitors, Lerwick

Respondent:  Erroch, AD;  Crown Agent

29 May 2015

Introduction

[1]        This appeal is concerned with the application of the principle discussed in the case of Moorov v HM Advocate 1930 JC 68 (“the Moorov doctrine”).

[2]        On 6 June 2014 at the High Court at Aberdeen the appellant was convicted by majority verdicts of two charges of rape (charges 1 and 7);  he was also unanimously convicted of two charges of assault (charges 2 and 5) and of a single charge of culpable and reckless conduct (charge 4).  A statutory charge of sexual assault (charge 8) was found not proven by the jury and two charges of breach of the peace (charges 3 and 6) were withdrawn by the Crown.  The trial judge continued the case for the preparation of reports and on 5 August 2014 imposed a cumulo sentence of seven years’ imprisonment.  The appellant now appeals against his conviction on charges 1 and 7.  There is no appeal on sentence.

[3]        Charge 1 libelled a rape as having occurred between 1 and 4 November 2004. Charge 7 libelled rapes on various occasions between 7 September and 24 October 2012.

Summary by trial judge of evidence relating to charges 1, 2, 5 and 7

Charge 1 - X
[4]        The first complainer was X.  She first met the appellant through her sister on her fourteenth birthday in 2003.  At that stage the appellant was nearly 22.  Thereafter the appellant spent time with the family initially at least as a friend of X’s sister.  However, as X put it in evidence, she had “the hots” for him; she found him attractive.  According to X they started kissing when she was still 14.  A sexual relationship started when she was 15.  At first X would climb out of the bedroom window in her parents’ house to rendezvous with the appellant in various places in their local town.  However before her 16^th birthday X left home and moved into a shared flat with the appellant.  During this time there was regular consensual intercourse. 

[5]        On one occasion during consensual sexual intercourse X said that the appellant was being rough and using his fingers as well (as his penis).  When he did this she was injured.  She realised that something had happened and thought that she might be bleeding.  She said “Hold on, I think I am bleeding” and followed that with “Stop.  I am bleeding.”  X told the court that he did not stop but replied “Hold on baby I am nearly finished.  Just let me finish.”  Despite her pleas to stop he carried on having sexual intercourse.   X went to the bathroom.  She was bleeding from her vagina.  The appellant took her to the local hospital where she was examined and found to have a vaginal tear.  She was given some gel and advised not to have sexual intercourse for 2 to 3 weeks.  This incident constitutes the rape in charge 1.

[6]        When they got home, using the gel to numb the pain, she and the appellant had sexual intercourse the same night.  It was consensual.  X was 15 at the time. 

Charge 2 - X

[7]        X spoke to various occasions on which she said that she had been assaulted by the appellant.  She spoke to regular occurrences every two to three days usually by shaking her or nipping her on the leg.  However, there were instances of more serious assaults including one occasion when he had pushed her, she had fallen and she had been rendered unconscious.  X’s medical records disclosed that on a number of occasions she had attended her general practitioner and complained of being injured following assaults by her boyfriend.  Bruises were seen on her upper arm and shoulder and the records described the appellant as being “very violent”.

Charge 5 - Y
[8]        The second complainer, Y, was a single mother with, at the time she met the appellant, children from a previous relationship.  She was 24 when the relationship with the appellant started.  She told the court that at first it was very caring and affectionate but it then became very controlling and possessive.  She said that the appellant had an opinion on everything she did, whom she saw and where she went.  He had bought her a mobile phone even although she had one of her own.  She told the court that this became a major problem because he would call or text her hundreds of times to find out what she was doing, where she was and whom she was with.  If she did not answer a text immediately then he would phone and ask her why she had not replied.

[9]        Y also told the court of being assaulted by the appellant on numerous occasions by nipping her on the leg or arm.  On one occasion there was a more serious assault.

[10]      The relationship came to an end in December 2008.  It was Y who decided to end the relationship.  The appellant was very unhappy at this and tried by various means to persuade her to take him back.  At one point he had asked her whether if he came clean and told her the truth about how he had behaved towards X, would she then consider taking him back.  Y said she had no intention of taking him back but listened to the appellant anyway.  He told her that he had been horrible and mean to X.  He said that he had punched her and nipped her and on one occasion had knocked her out. 

Charge 7 - Z
[11]      The third complainer was Z.  She was a friend of the appellant’s sister.  She is also a single mother having given birth to a child a few months before she met the appellent.  She was 24 years old at the date of trial.  She met the appellant in September 2012 when she was on a night out with friends.  They talked and at the end of the night the appellant asked her for her phone number.  At 3am she got a text message and arrangements were then made to meet up the following day.  They started going out together.  Z said that there was daily contact by telephone call and text messaging.  In the second week of the relationship the appellant bought her a mobile phone.  He texted her a lot and it became more frequent.  He would ask what she was doing and where she was.  She would not always reply or call back and this would annoy him. 

[12]      Z said that on occasions when she and the appellant had sexual intercourse she began by saying no but he was very persistent.  On one occasion they were in the living room of the house at about 9 or 10 at night.  He said that he wanted sex.  She said that she was not in the mood and said no.  However he was very persistent.  She felt threatened by him as she was not sure what he was capable of.  She gave in and went ahead with it.  This happened on other occasions.  She was in the habit of having a shower at night.  The shower was in the wet room and the appellant would often come in with her.  She accepted that on occasions she had consented to sexual intercourse in the shower.

[13]      It was in the shower that the first non-consensual intercourse took place.  It was about three weeks after their relationship started.  Z had gone to have a shower and the appellant had come in with her.  He said he wanted to have intercourse.  She said no and tried to back away.  He turned her to face up against the wall in the shower and penetrated her vagina from behind.  She said no twice and then repeated it three or four times though not so loud.  She said it did not last long and he did not ejaculate;  she had managed to move away.  She came out, dried herself and got dressed.  She felt scared because she had said no and he had continued despite that. 

[14]      On the second occasion when intercourse was not consensual Z said that she was in bed asleep.  She awoke to find the appellant lying on top of her.  She said “No I don’t want this.”  He said “okay” but then just carried on.  She tried moving but he was lying with his legs positioned outside hers.  She had tried wriggling but without success.  She had been wearing pants in bed but he had moved them to one side to penetrate her.  She said that she was scared of him. 

[15]      Z brought the relationship to an end in the third week of October 2012.

Grounds of appeal

[16]      The grounds of appeal are directed at the sufficiency of the evidence to support the convictions for rape.  In the note of appeal they are set out as follows:

“It is submitted that on the evidence led the jury were not entitled to apply the doctrine of mutual corroboration in relation to charges 1 and 7 for the following reasons:-

1.         The period of time between the two charges was substantial, being a period of almost 8 years.  Whilst it could not be said that this period of time alone precludes the application of the doctrine of mutual corroboration, it should be noted that in the context of this case, the evidence led disclosed that the appellant had been involved in at least one intervening relationship between his relationships with the complainer in charge 1 and the complainer in charge 7.  In particular, the appellant had been involved in an intervening relationship with the complainer in charge 5 for a significant time period.  Whilst she had made allegations of violence against the appellant, there had been no allegations of conduct of a sexual nature.  Accordingly, it could not be said that the conduct in charges 1 and 7 represented a course of conduct systematically pursued by the appellant.

(ii)        In addition, there were differences in the circumstances of the offences.  In relation to charge 1, this had commenced as an incident of consensual sexual intercourse during which the complainer had withdrawn her consent but the appellant had continued to engage in sexual intercourse with her.  On the other hand, the circumstances of the two incidents described by the complainer in charge 7 were both incidents where there had been no consent at all to the sexual intercourse described.

It is accepted that there were certain similarities between the incidents, in particular with regard to the nature of the appellant’s relationship with each of the two complainers.  In addition it is accepted that no submission was made at the trial in terms of section 97 of the Criminal Procedure (Scotland) Act 1995.  However, having regard to the factors outlined above, mutual corroboration could not be applied in the particular circumstances of this case.”

Submissions

Appellant

[17]      Mr Keenan acknowledged that at trial no submission had been made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 that the appellant had had no case to answer.  Nevertheless, it was now his submission that the principle of mutual corroboration had not been available to provide a sufficiency of evidence in respect of charges 1 and 7.  He highlighted five points:  (1) there were only two offences;  (2) there was a substantial time gap, just less than 8 years, between the dates of the alleged rapes;  (3) the circumstances in which the rapes were said to have occurred were different;  (4) there was an absence of any extraordinary features;  and (5) there had been at least one intervening relationship which the appellant had had between his relationship with the complainer in charge 1 and his relationship with the complainer in charge 7.  Mr Keenan accepted that even a very lengthy time gap between allegations did not preclude the application of the principle of mutual corroboration, but a long gap was a significant factor.  Where the gap was long the other factors of character and circumstances had to be particularly strong in order to supply the necessary extra force:  Tudhope v Hazelton 1995 SLT 209 at 212.  Here there were only two complainers and their allegations were separated by a long period of time.  Where there were only two allegations, the principle of mutual corroboration had to be applied only with a great deal of caution.  It was instructive to consider what had been said by the Lord Justice Clerk (Gill) in AK v HM Advocate 2012 JC 74, a case where the charges had been separated by a period of at least 13 years and 10 months.  There, at para.14, the Lord Justice Clerk had noted that it had been common ground that where the interval is a long one it is necessary to consider whether there are any special features which render the similarities compelling.  In that case there had been a special feature but “solely on the similarities…the Crown could not have opposed the appeal”.  In Mr Keenan’s submission where incidents were as far apart as the alleged incidents here, there had to be something exceptional to draw them together.  A time gap might also be significant if it demonstrated that during a period when there was opportunity for offending, no offending was alleged:  see, for example, Pringle v Service 2011 SCCR 97.  Here, not only did the circumstances of the two alleged offences not display significant similarities, they displayed significant differences.  There must be something compelling to link events separated by many years.  Here there was nothing.  Moreover, there was a parallel with Pringle in that the complainer in charge 5, with whom the appellant had been in a relationship, had not alleged any sexual as opposed to other physical, violence.  As had been said in a passage in the opinion of Lord Justice Clerk Aitchison in Ogg v HM Advocate 1938 JC 152 at 158, which was repeated in the opinion of the Court in Pringle, before the Moorov doctrine can be applied, “it must be possible to say that there is not only a series of separate similar offences, but there is a…practical certainty….that the similar offences are instances of one course of criminal conduct persistently pursued by the accused person”.  It was not possible to say that in the present case.  The appeal should be allowed.

Respondent

[18]      The advocate depute submitted that when the court is considering the question of the applicability of the Moorov doctrine, what is sought are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel, such as to demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused: R v HM Advocate 2013 JC 212 at para 20;  AS v HM Advocate [2014] HCJAC 135 at para [9].  Although “course of conduct” is the term most commonly used in relation to the Moorov doctrine, in the case underpinning the doctrine (Moorov v HM Advocate supra) the Lord Justice General (Clyde) expressed some reservations about the use of that term, and referred to the separate acts which invoked the doctrine as “subordinates in some particular and ascertained unity of intent, project or campaign, or adventure, which lies beyond or behind – but is related to – the separate acts” (supra at 73).  Whether the requisite similarities in time, place and circumstance exist or not is primarily a question of fact and degree for assessment by the jury, and, it is only where, on no possible view of the evidence could it be said that the complainers’ individual experiences were part of a single course of conduct that the availability of the Moorov doctrine can be excluded from the jury’s consideration: Livingston v HM Advocate [2014] HCJAC 102 at para [14];  Reynolds v HM Advocate 1995 SCCR 50.  It was accepted that in the present case there was a significant time interval between the offending in charge 1 and that in charge 7, but, as was conceded on behalf of the appellant there is no specific time interval beyond which the Moorov doctrine cannot operate: Dodds v HM Advocate 2002 SCCR 838 at 845 and 857.  The more similar the conduct is in terms of character, the less important a significant time gap may be: Moorov v HM Advocate supra at 88;  Stewart v HM Advocate 2007 SCCR 303 at para 24;  AS v HM Advocate supra at para 10.  Compelling similarities will merit consideration of the whole circumstances by the jury, even where there has been a substantial interval of time:  AK v HM Advocate supra;  AS v HM Advocate supra at para 10.

[19]      While the advocate depute accepted that there were dissimilarities as between what was alleged in charge 1 and what was alleged in charge 7, he submitted that these dissimilarities had to be contrasted with the similarities between the offences.  These, he said, were compelling: there were significant age disparities between the complainer and the appellant - in charge 1 the complainer was aged 15 at the time of the offence and the appellant was aged 23, while in charge 7 the complainer was aged 22 and the appellant was aged 31;  both offences involved vulnerable young women who were in a relationship with the appellant, the complainer X was vulnerable by reason of her age, whilst the complainer Z was vulnerable by reason of the fact that she was a single mother who had given birth only some four months before;  both offences were committed in the context of an ongoing relationship between the complainer and the appellant, and in both instances the complainer’s relationship with the appellant was marked by the controlling and possessive behaviour on the part of the appellant, which included repeated telephone calls and text messages;  both complainers spoke to similar background circumstances in that the appellant indulged in “rough sex” and that he appeared to be “disassociated from the moment” when having sexual intercourse;  in terms of the offences themselves, both complainers spoke to telling the appellant to desist, the appellant acknowledging what they had said, but then just carrying on as though nothing had been said;  and both offences were committed when the complainer and the appellant were spending the night together.

[20]      The advocate depute submitted that the evidence of the complainer Y effectively tied charges 1 and 7 together, and gave the overall context.  She had spoken to a degree of vulnerability at the start of her relationship with the appellant (she was a single mother with children).  She had spoken to the appellant’s controlling and possessive behaviour, which descended (as with the complainer X) into violence.  Thus the relationships which the appellant had with all three women were hallmarked by his possessive, domineering and controlling behaviour, and the subordination of his partners’ wishes to those of his own.  Whilst the appellant’s sexual offending was eloquent of someone who wanted to obtain sexual gratification regardless of the wishes of his partners, it was also just one manifestation of the type of relationship that he habitually conducted.  It was the type of abusive relationship that the appellant had with women that provided the necessary underlying unity envisaged by Lord Justice General Clyde in Moorov.  The jury had accordingly been entitled to convict and the appeal should be refused.  

Decision

[21]      The appellant submits that the evidence led was insufficient to allow the jury to convict of charges 1 and 7.  The point was not taken at trial in that no section 97 submission was made at the close of the Crown case, but that is of no consequence:  Farmer v Guild 1991 SCCR 174 at 178.  The point is taken now.

[22]      As the law of Scotland presently stands there is a requirement for corroboration of what are the essential facts which the prosecutor has to prove in every case:  that a crime was committed and that the accused was the perpetrator.  Hume (Commentaries, ii 383) puts it this way:

“…no one shall in any case be convicted on the testimony of a single witness.  No matter however trivial the offence, and how high soever the credit and character of the witness, still our law is averse to rely on his single word…and rather than run the risk of…error…it is willing that the guilty shall escape”.

[23]      The advocate depute accepted that the respective complainers provided but a single source of direct evidence for the allegation of rape contained in charge 1 and the allegations of assault and rape contained in charge 7.  However, he submitted that the necessary corroboration for each charge can be found by application of the Moorov doctrine.

[24]      Generally speaking, if there is evidence that someone has done something on one occasion, it may be easier to accept evidence that he has done something similar on other occasions.  The more instances there are and the greater the similarities between them, accepting the evidence of one instance may become progressively easier.  However, as Mr Keenan emphasised and the advocate depute accepted, that is not what is meant by the Moorov doctrine.  The Moorov doctrine is not about the acceptance of evidence, it assumes that the relevant evidence has been accepted;  it is about corroboration, and in particular corroboration of an underlying “course of criminal conduct persistently pursued by the accused person”:  Ogg v HM Advocate supra at 158  (if there be such) of which the subjects of the charges on the indictment are but instances. 

[25]      The matter is explained by the Lord Justice Clerk (Gill) in K v HM Advocate 2012 JC 74 at para 10:

“…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 Advocate (p89) 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 more floridly (p79):

‘[T]he 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 – separate acts’”.

[26]      What Lord Justice General Clyde wished to emphasise was that where what was in issue was the availability of evidence of one act to provide mutual corroboration of another, “a course of criminal conduct” had to be understood as something more than simply the repetition by one accused of a series of similar crimes “over a period of (say) three years” (Moorov supra at 73).  Rather (supra 74):

“…it is of the utmost importance to the interests of justice that the ‘course of criminal conduct’ must be shown to be one which not only consists of a series of offences, the same in kind, committed under similar circumstances, or in a common locus – these are after all no more than external resemblances – but which owes it source and development to some underlying circumstance or state of fact…”

[27]      The existence of any underlying course of conduct will usually have to be inferred from the evidence led in support of the individual charges, but more is required than simply an indication of a general disposition to commit a particular sort of offence:  Ogg v HM Advocate supra at 158.  As the Lord Justice Clerk (Carloway) put it in R v HM Advocate supra at para. 20:

“[20] What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel…..such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused…whether these similarities exist will often be a question of fact and degree requiring, in a solemn case, assessment by the jury…under proper direction of the trial judge”.

However, in any particular trial it may not be entirely a matter of inference;  other evidence heard by the jury may be relevant to establish an underlying course of conduct.  In K v HM Advocate, for example, evidence of what could be interpreted as an acknowledgement by the accused that he was engaged in a course of conduct was determinative.  Moreover, in relation to the charges on the indictment, while what is looked for are similarities pointing to an underlying unity of intent or purpose, that may be inferred even when the offences charged are not exactly the same:  McMahon v HM Advocate 1996 SLT 1139 at 1142A;  B v HM Advocate 2009 SCCR 106 at para.6.  As appears from R v HM Advocate supra at paras. 17 and 21:

“…one type of illegal activity can be intimately connected with other types of different, but still illegal, acts.  Sexual and physical abuse of different kinds perpetrated by one person but occurring within the same family unit, extended or otherwise, is one model of this type…..There is then no rule that what might be perceived as less serious criminal conduct cannot prove corroboration of what is libelled as a more serious crime”.

[28]      Long lapse of time does not preclude the finding of sufficient similarity between two incidents to infer a course of conduct:  Dodds v HM Advocate supra at 845 and 857, but it is very relevant.  Where the interval is a long one it is necessary to consider whether there are any extraordinary features in the evidence that nonetheless make the similarities compelling:  K v HM Advocate supra at para. 14. 

[29]      We did not understand that the law as we have attempted to summarise it above was in any way controversial.  Mr Keenan argued that when it was applied, the conclusion must be that the appeal should succeed.  Putting it shortly, while there were some similarities as between what was alleged in charge 1, there were also clear dissimilarities.  The time interval, at a little short of 8 years, was long.  Accordingly, for the Crown to be able to link the two alleged incidents it must be able to identify some special feature.  There was no such feature in the present case. 

[30]      We agree that the time interval here is a long one.  That was conceded on behalf of the Crown.  There were not insignificant dissimilarities as between the circumstances of the respective charges.  Again, that was conceded.  Against that the advocate depute pointed to a number of similarities between what had been spoken to in support of charge 1 and what had been spoken to in support of charge 7.  We have considered the advocate depute’s points of similarity.  We do not regard them as compelling.  There is no special or extraordinary feature.  Accordingly, looking at what is alleged in charges 1 and 7 alone, and concentrating exclusively on the incidents of non-consensual intercourse on the three occasions spoken to by the respective complainers and ignoring everything else, we would accept that the jury would not have been entitled to infer the necessary underlying unity of intent or purpose which is the pre-requisite to the application of the Moorov doctrine. 

[31]      That brings us to consider the relevance and, to the extent that it is relevant, the probative effect of the evidence of Y, who spoke in particular to the circumstances of charge 5. What was libelled in charge 5 and found by the jury to have been proved was that on various occasions between 1 January 2007 and 31 December 2008, the appellant assaulted Y by nipping her and punching her on the body and, on one occasion seizing her by the shoulders, shaking her, throwing a boot at her and striking her, all to her injury. As had been the case with X and Z, at the relevant time the appellant had been in a sexual relationship with Y. It was the advocate depute’s submission that the evidence of Y “tied charges 1 and 7 together”. This, according to the advocate depute, was because the appellant’s sexual offending was just one manifestation of the type of relationship that he habitually conducted. It was the type of relationship that the appellant had with women that provided the underlying unity as envisaged by Lord Justice General Clyde in Moorov. Thus, so the argument went, the time interval as between the libels in charges 1 and 7 is partially bridged and thereby materially reduced by the libel in charge 5 with the result that it becomes less important for there to be compelling similarities as between charge 1 and charge 7 and unnecessary for there to be the special or extraordinary features which are looked for in cases of long intervals between incidents of alleged offending.

[32]      We understand the advocate depute’s argument. It is premised on the proposition at least where the perpetrator is male and the complainer female, physical abuse and sexual abuse constitute behaviour which may be placed on the same spectrum and which has much the same motivation. It invites the conclusion that therefore evidence of an instance of the one is necessarily relevant to proof of an instance of the other.

[33]      The advocate depute’s proposition may be sound. Indeed we recognise that there will be cases where it will not be possible to make a neat distinction as between physical abuse, on the one hand, and sexual abuse, on the other. We do not however accept the advocate depute’s conclusion, at least in the circumstances of this case.

[34]      By bringing this indictment the Crown set itself to prove by corroborated evidence the single incident of rape libelled in charge 1 and the two incidents of rape libelled in charge 7. There may be corroboration for what the respective claimers said in respect of these incidents if, on the evidence led, the Crown has established an underlying unity of intent or purpose. That underlying unity may be established by the evidence led in support of individual charges and once established, what is libelled in these individual charges can be regarded as merely incidents in the course of criminal conduct which has been driven by the underlying unity. However, in order for evidence of a particular incident, or series of incidents, to establish an underlying unity and for the incidents then to be regarded as falling within the one course of criminal conduct, the incidents in question, and in particular the conduct of the accused on the occasion of these incidents, must be of the same character. The conduct need not necessarily constitute the same crime in the sense of having the same nomen juris but there must be “similarity of the conduct described in the evidence”: B v HM Advocate supra, Lord Justice General Hamilton (with whom Lord Nimmo Smith concurred) at para 6, as endorsed by the Lord Justice-Clerk giving the opinion of a bench of five judges in R v HM Advocate supra at para 16.

[35]      While he did not quite articulate it in this way, in order to give effect to the advocate depute’s argument we would require to accept that the evidence of Y of nipping and punching and the other assaultive behaviour libelled in charge 5 was available to corroborate, by virtue of the Moorov doctrine, the evidence of X of the appellant persisting in intercourse against her will as libelled in charge 1 and the evidence of Z of two incidents of forceful rape as libelled in charge 7. That, in our opinion, would be to take a step which is not justified by authority. The most important recent decision is that of five judges in R. There, speaking for the court, the Lord Justice-Clerk acknowledged that one type of illegal activity can often be intimately connected with other types of different, but still illegal activity.  He gave the example of sexual and physical abuse of different kinds perpetrated by one person but occurring within one family unit.  That is not to say that evidence of any sort of assault is potentially corroborative of rape. It is instructive to look at what was said by the Lord Justice-Clerk at paragraphs 21 and 22 of the opinion of the court in R:

“[21] There is then no rule that what might be perceived as less serious criminal conduct cannot provide corroboration of what is libelled as a more serious crime. Once that is recognised, it can be seen that the conduct of the appellant in charge 6 (1973) in removing the clothing of his 11-year-old niece, lying on top of her and then raping her in the manner libelled may be corroborated by the conduct in charge 4 (1978) of climbing on top of his 16-year-old daughter, removing her clothing and placing his private member against her private parts with the stated intention of having intercourse with her. The penetration in charge 6 is sufficiently corroborated by what appears to have been near penetration and an expressed desire to achieve it on charge 4. The trial judge's directions in that regard were correct and the appeal on this ground must be refused.

[22] In relation to grounds 2 and 3, the court is satisfied that the events proved relative to charge 11 were capable of being corroborated by those on charge 14 (and vice versa ). Both involved physical attacks, involving pushing, on female relatives in their own homes at times when the appellant was alone with them. For similar reasons, and notwithstanding the gap in time (six or seven years), the court is satisfied that the events proved on charge 15, involving lewd practices towards a niece of the appellant, were capable of being corroborated by the incidents involving sexual misconduct towards other female relatives, including another niece. In these circumstances, the appeal against conviction is refused”

At this point in the opinion the Lord Justice-Clerk is addressing the facts of the particular case as opposed to matters of principle but it is illustrative of what sort of illegal acts might be corroborative of other types of illegal acts by virtue of an application of the Moorov doctrine.  We would see these illustrations as very far removed from the available evidence in the present case.  The legal perspective has been to view rape as a significant and very serious offence, having a different quality from assaults, even serious assaults, which lack an obvious sexual element.  An indication of its particularly serious nature is that it is prosecuted only in the High Court.  In the light of the court’s decision in R, evidence of attempts to rape or other sexual assaults involving penetration may be relevant to the proof of an allegation of completed rape.  Evidence of other conduct also may be relevant but, in our opinion, what is libelled in charge 5 of the present indictment, being neither an allegation of rape nor an allegation of conduct having any similarity to rape, as similarity is to be understood by reference to the authorities, was not available to corroborate what was libelled in charges 1 and 7. The appellant’s appeal must therefore succeed and his conviction on these two charges quashed.

[36]      The appellant remains convicted of charges 2, 4 and 5.  His sentence of seven years imprisonment was a cumulo one.  No specific ground of appeal was directed at sentence but our decision obviously has a significant impact on what sentence is appropriate in the circumstances.  We shall continue the appeal to be addressed on that issue.