Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 52

HCA/2015/001736/XC

Lady Smith

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LADY SMITH

in

APPEAL AGAINST CONVICTION

by

RF

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  McConnachie, QC; Gilfedder McInnes, Edinburgh

Respondent:  Di Rollo, AD; Crown Agent

6 May 2016

Introduction

[1]        On 15 April 2015, at the High Court in Glasgow, the appellant was convicted after trial of eleven charges involving the physical and sexual abuse of family members between 1976 and 2004. There were thirteen charges on the indictment; the appellant was found not guilty in relation to charge 5 and charge 10 was found to have been not proven.

The appellant was sentenced in cumulo to 12 years imprisonment.

Charges 7, 8, 9 and 10

[2]        This appeal relates only to charges 7, 8, 9 and 10.  They were in the following terms:

“ (007)  on an occasion between 27 February 1991 and 6 March 1991, both dates inclusive, at (a residential address) you …did assault J B …and whilst she was asleep and incapable of giving or withholding her consent, penetrate her vagina with your penis, and after she had awakened continue to penetrate her vagina with your penis and you did rape her;

(008) on an occasion between 7 May 2001 and 6 May 2003, both dates inclusive, at (a residential address)  you….did use lewd, indecent and libidinous practices and behaviour towards NP, your daughter, born 7 May 1998..remove her clothing, lie on top of her and expose your penis and simulate sexual intercourse ;

(009) on an occasion between 7 May 2002 and 6 May 2004, both dates inclusive, at ( a residential address) you… did use lewd, indecent and libidinous practices and behaviour towards NP ….your daughter, born 7 May 1998,…and rub her naked breasts;

(010)  on an occasion between 19 July 2000 and 13 July 2001, both dates inclusive , at (a residential address) you….did use lewd, indecent and libidinous practices and behaviour towards RPF, your son born 14 July 1989…and did penetrate his mouth with your penis and ejaculate in his mouth.”

Accordingly, on these allegations, the lapse in time between charges 7 and 8 was about 10 years, the lapse in time between charge 7 and 10 was between 9 and 10 years and the lapse in time between charges 7 and 9 was about 11 years.

[3]        The Crown approached the case on the basis that it was necessary to find corroboration for charge 7 in charges 8, 9 and/or 10.  Given the whole terms of the indictment, other approaches might have been adopted by the Crown but, as is clear from the trial judge’s report and the advocate depute’s submissions, that did not happen. 

The Evidence
[4]        The complainer JB gave evidence in support of charge 7.  She was the 17 year old sister of the appellant’s partner and was staying with them at their home.  One night, when there was a party at the house, she went to sleep on a makeshift bed in a room where the children were sleeping. She said that the next thing she remembered was waking up to find that the appellant was on top of her, having sexual intercourse with her, with his penis inside her vagina. She told him to stop.

[5]        The appellant’s daughter NP gave evidence in support of charge 8.  She said that, when she was 4 or 5 years old, she was in her bed, talking to the appellant about going to watch “CBeebies”.  The appellant was also in the bed.  He pulled down her pyjama trousers and pants, and his trousers, removed her clothing, lay on top of her, exposed his penis and simulated sexual intercourse.  She described lying on her back with her legs apart “like an angel”, the appellant’s hands being on her head, him feeling heavy, him making a movement “up and down like the way a caterpillar moves, kind of”, him battering her head off the headboard, and his “private” looking like a big sausage and getting thinner.

[6]        NP also gave evidence in support of charge 9; she said that the appellant rubbed her naked chest on one occasion.

[7]        The appellant’s son RPF gave evidence in support of charge 10.  He said that the appellant made him perform oral sex on him, in the appellant’s bedroom on the appellant’s bed.  He said that the appellant shouted to him to come into his bedroom, that the appellant pulled down his trousers and boxer shorts, that the appellant’s penis was erect, that the appellant ejaculated into his mouth, that he, RPF then spat it out and the appellant told him to “fuck off”.

[8]        On the evidence, the lapse in time between charges 7 and 8 was about 11 years, the lapse in time between charges 7 and 10 was between 9 and 10 years, and the lapse in time between charges 7 and 9 was about 11 years.

No Case to Answer Submission

[9]        At trial, senior counsel for the appellant made a submission of no case to answer.  He said that the Moorov principle could not apply as between charge 7 and charges 8, 9 or 10, relying particularly on the length of time that had elapsed between the events alleged.  The trial judge repelled the submission, accepting the Crown submission which was to the effect that there was great coincidence in the conduct alleged and notwithstanding the time gap, Moorov could apply. He said:

“ I required to take the evidence at its highest for the Crown. Having heard both parties, I was not satisfied that the evidence led by the prosecution was insufficient in law to justify the accused being convicted of the offence…contained in …charge (7) on the indictment. Accordingly in terms of section 97(3) of the 1995 Act I rejected the submission.”

[10]      Although he notes, in his report, that he was addressed by senior counsel for the appellant on the significance of the lapse of time between the charges and the lack of connection between them, he does not explain why he rejected that submission.  

The Appeal

[11]      The appellant appeals his conviction in relation to charges 7, 8 and 9.  There are two grounds of appeal.

[12]      The first ground of appeal is that the trial judge erred in rejecting a submission of no case to answer in relation to charge 7; charges 8, 9 and 10 could not afford evidence of a course of conduct systematically pursued and so the doctrine of mutual corroboration  (see: Moorov v HMA 1930 JC 68) did not apply.

[13]      In support of this ground of appeal, senior counsel referred to Moorov v HMA, AK v HMA 2012 JC 74, MR v HMA 2013 SCCR 190, AS v HMA 2015 SCCR 62, and KH v HMA 2015 SCCR 242 for his two central propositions. They were, first, that it was fundamental to the application of Moorov that the evidence be capable of showing such similarities in time, place and circumstances in the behaviour in the libel as to demonstrate that the individual instances are not isolated but are parts of one course of conduct systematically pursued by the accused and, secondly, that in this case, the gaps in time between the charges were of such length as required there to be some compelling or extraordinary feature linking the charges before it could possibly be concluded that they were a single course of conduct. In this case, neither of those requirements could be met. The gaps in time were unexplained.

[14]      The second ground of appeal is that esto the trial judge was correct to reject the submission of no case to answer, the jury were not entitled to find corroboration in the circumstances of charge 8 alone, the jury having acquitted the appellant of charge 10.  The lapse of time between charges 7 and 8 was even greater than that between 7 and 10 and, again, there were no compelling or extraordinary features nor was there an explanation for the gap in time.

[15]      In relation to both grounds of appeal, senior counsel submitted that although there were points of similarity (family connections, home circumstances, two female complainers), there were also significant dissimilarities (JB was over the age of consent, NP was a very young child, the conduct alleged in the other charges was very different from that in charge 7);  there was nothing in the circumstances of the offences themselves which was compelling or extraordinary. He also relied on the fact that within the time lapses between the charges there were also available, within the family setting, two young children – a sister born in 1995 and a brother born in 1993/4 – but there were no allegations that either of them had ever been sexually abused by the appellant.  The time gap could not, accordingly, be explained by intervening lack of opportunity:  cf AK v HMA  at para 11; Pringle v Service 2011 JC 190 at para 20.

[16]      For the Crown, the advocate depute submitted that only in extreme cases should the matter not be left to the jury and this was not such a case.  She submitted that, although she could not point to any features which were extraordinary in the AK sense, the similarities in the conduct alleged in charges 7 and 8 demonstrated that they were component parts of a course of conduct. The allegations were that the conduct involved young female members of the family unit committed at a time when they were vulnerable to the appellant’s attentions in the family home, when they were in bed. Although penetration was not involved in charge 8, the mechanics as between it and charge 7 were remarkably similar. Charge 9 was demonstrative of exploitation.  These charges were all eloquent of there being an underlying intent to obtain sexual gratification from vulnerable young female family members irrespective of their wishes.

[17]      The advocate depute accepted that the lapse of time was important but there was no maximum time lapse fixed by law beyond which Moorov could not apply. The circumstances of the behaviour alleged were, she submitted, compelling and it could not be said that on no possible view were the offences insufficiently connected for Moorov to apply.  She relied on Reynolds v HMA 1995 JC 142 at 146D – E, Livingstone v HMA [2014] HCJAC 102, and HMcA v HMA [2014] JC 27.  The trial judge did not err in refusing to uphold the no case to answer submission and, thereafter, it was open to the jury to convict.

Moorov

[18]      Under the law of Scotland, to prove an allegation against an accused person, corroboration that a crime was committed and that it was committed by the accused is essential. Where the events in each of a number of charges are spoken to by only one witness, corroboration may be found by application of the principle in Moorov.  However, the principle does not apply simply because there are similarities as between the conduct libelled in two or more charges involving different complainers. That is but part of what needs to be considered and will not, of itself, answer the key question of whether the events alleged are so connected in time, place and circumstances as to show that they are examples of an underlying unity of intent to pursue a particular course of conduct.  Whilst the advocate depute was correct to say that there is no maximum interval of time fixed by law beyond which Moorov can apply, the longer the gap, the more difficult it will become to accept that evidence of two separate events may be regarded as corroborative of each other. It is, in particular, clear from the authorities that where the prosecution involves a limited number of charges separated by long periods of time, great care must be taken before applying Moorov, even where there are similarities in the behaviour alleged.  Otherwise, there is a real risk that evidence that, in truth, points only to a general disposition to commit a particular type of offence will – wrongly – be used as corroboration.  A long lapse of time is, accordingly, “very relevant”( KH  per Lord Brodie at para 28).

[19]      In Moorov, Lord Justice General Clyde emphasised that something more than repetition by the accused of a series of similar crimes was required. Hence his observations at p.73:

“The test I think is whether the evidence of the single witnesses as a whole – although each of them speaks to a different charge – leads by necessary inference to the establishment of some circumstance or state of fact underlying and connecting the several charges, which, if it had been independently established, would have afforded corroboration of the evidence given by the single witnesses in support of the separate charges. If such a circumstance or state of fact was actually established by independent evidence, it would not occur to anyone to doubt that it might properly be used to corroborate the evidence of the single witnesses, as a whole…..No merely superficial connexion in time, character and circumstance between the repeated acts – important as these factors are – will satisfy the test ….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 circumstances) 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. The existence of such an underlying unity, comprehending and governing the separate acts, provides the necessary connecting link between them..”. (Our emphases)

and at p. 74, having pointed out the risk of confusion inherent in the use of the phrase “course of conduct” :

“ ….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 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 its source and development to some underlying circumstance or state of fact …..”.

[20]      Hence also, Lord Sands’ discussion of the significance of the lapse of time at p.89 of Moorov:

“A great deal of the argument in the present case turned upon the question of time – the interval between the alleged acts. This is an important and, in some aspects, a vital consideration. This results from the quality of the acts as evidence of a ‘course of conduct’. A ‘course’ involves some continuity.  Acts isolated by a long period of time do not make a course of conduct. But whether a series of acts is to be regarded as disclosing a course of conduct must depend upon the nature of the acts themselves and the surrounding circumstances. A course does not necessarily imply that the offence is committed or attempted ever day or even every month. Opportunity or inclination may be intermittent. A man whose course of conduct is to buy houses, insure them and burn them down, or to acquire ships, insure them and scuttle them, or to purport to marry women, defraud them and desert them cannot repeat the offence every month, or even perhaps every six months.

Time, however, may undoubtedly be an important factor in determining whether evidence imports a certain course of conduct.”

[21]      Again, the need to look for evidence of continuity and the execution of a determined plan is stressed and it is of some note that Lord Sands did not envisage events in the relevant course of conduct being separated by periods of time so long as to be measurable in years.

[22]      In AK, in directions which were described by the Lord Justice Clerk (Gill) as being “clear and accurate”(para 17), when referring to a time gap of 8 years – that is, a lapse of time that was shorter than in the present case -  the trial judge told the jury that “ in general it would be very difficult to think of time lapse of this length as being consistent with a single course of conduct”.   When it came to a time gap of the order of 13 years, the trial judge in AK went on to direct the jury “…the issue of lapse of time would be an even more important consideration….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.”    Having agreed with these directions, the Lord Justice Clerk observed, at paragraph 14, 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).”  Such features were found to have been present in AK. There was evidence that, on the later occasion, that appellant had said things to the second complainer which were strongly indicative of him thinking that he was “carrying on from where he left off with the first complainer”(para 18) and were so compelling as to amount to “quite exceptional circumstances”. We should add that we do not consider that the Lord Justice Clerk was indicating that any test of exceptionality applied albeit that it was an appropriate description in that case; rather, it is clear from the opinions in AK and KH that where there is a long lapse of time, the features required are those which can properly be described as “special” or “extraordinary” so as to render any similarities “compelling”.  It is not enough that a general description or characterisation applicable to all the charges may be arrived at. Something more is required – something special or extraordinary that casts the similarities in such a light as to demonstrate that they can properly be regarded as evidence of the requisite underlying unity of intent.

Decision

[23]      The central issue in relation to both grounds of  appeal came to be whether or not the jury were entitled to conclude that Moorov applied as between charges 7, 8/9, and 10 or between charges 7 and 8/9.  The approach of the advocate depute was to say that the application of Moorov was a matter for the jury unless it could be said that on no possible view was there any connection between the offences, relying on Reynolds and Livingstone in support of that proposition.  She suggested that that showed that it was only in extreme cases that matters should not be left to the jury.  Whilst we readily accept that a submission of no case to answer ought not to be sustained if the trial judge considers that there is sufficient evidence to entitle the jury to conclude that the accused was guilty of the crimes alleged – where, to use Reynolds and Livingstone terminology, it would be “possible” as a matter of law for them to do so – the “connection” that the evidence needs to have demonstrated for that possibility to arise where Moorov is relied on remains evidence which meets the requirements explained by the Lord Justice General and Lord Sands in Moorov, as quoted above.  Further, we do not accept that there is any support in the authorities for the view that it is only in an extreme case that a no case to answer submission can be upheld.  The question is always one of sufficiency - namely whether there is evidence within which the jury could, as a matter of law, find corroboration. Where the Crown rely on the principle of mutual corroboration, the question is whether it, as explained in Moorov, could apply; could it properly be inferred that there was an underlying unity of intent connecting the separate acts? There is no presumption that it will apply unless the case is an extreme one, which is what the advocate depute seemed to suggest. 

[24]      The advocate depute frankly accepted that there were not, as between these charges, any special or extraordinary features.  Rather, she relied on the similarities as between the conduct alleged in charges 7 and 8, and in charges 7 and 10 and sought to persuade that they were compelling.  We are not persuaded that they can properly be so regarded.  We agree that there were no special or extraordinary features.  Further, there were also dissimilarities, there was no explanation for the substantial lapse of time and, given the evidence about other children, the later events were not the first opportunities to resume the alleged course of conduct.  Accordingly, we consider that the appeal is well founded.  There was no proper basis on which the jury would have been entitled to infer the necessary underlying unity of intent; Moorov could not apply.  The submission of no case to answer ought to have been upheld.

[25]      It follows that there was no proper basis on which the appellant could be convicted of charges 7,8 and 9 and we will quash those convictions.