Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 60

HCA/2015/3368/XC

Lord Justice Clerk

Lord Bracadale

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

RG

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  CM Mitchell; Paterson Bell

Respondent:  I McSporran, Solicitor Advocate, AD; Crown Agent

15 July 2016

Introduction
[1]        On 27 August 2015, at Dumfries Sheriff Court, the appellant was convicted after trial of two charges of using lewd, indecent and libidinous practices and behaviour towards two pre-pubescent girls between 1977 and 1990.  There were four charges on the indictment; charges 1 and 4 were found not to have been proven.  On 7 October 2015, the appellant was sentenced in cumulo to 12 months imprisonment.

Charges 2 and 3
[2]        The charges depended upon the application of the doctrine of mutual corroboration. The terms of the libel were:

“(002) on 2 occasions between 1 January 1977 and 31 May 1978, both dates inclusive, at [an address], you RG did use lewd, indecent and libidinous practices and behaviour towards AB, born 15.12.1967, then aged between 9 and 10 years, care of Police Service of Scotland, and did expose your erect penis to her, stroke her hair, place her hand on your naked penis, kiss her on the lips, place your hand on her vagina under her clothing and insert your fingers into her vagina

(003) on various occasions between 1 March 1988 and 30 March 1990, both dates inclusive, at [an address], you RG did use lewd, indecent and libidinous practices and behaviour towards CD, born 31.03.1983, then aged between 4 and 7 years, care of Police Service of Scotland, and did expose your penis to her, place your penis between her legs and hold her against you, watch pornographic material in her presence, masturbate in her presence, place her hand on your penis and force her to masturbate you and repeatedly press your genitals against her body…”.

The issue
[3]        On these allegations, the time lapse between charges 2 and 3 was about 11 years.

This appeal was heard together with the appeal in JL v HM Advocate [2016] HCJAC 61.  This appeal raises identical questions about the application of the Moorov doctrine to charges involving lengthy lapses of time and jury directions in such circumstances.  This opinion should accordingly be read in conjunction with the opinion in JL v HM Advocate.

The evidence
[4]        The complainer in charge 2 testified to the appellant abusing her on two occasions between 1 January 1977 and 31 May 1978.  She was between nine and ten years old.  Her parents were friends of the appellant and his wife, and they socialised together.

[5]        On the first occasion, the appellant came into the complainer’s bedroom after coming home with her parents after a night out.  He exposed his penis to her and asked her to touch it.  He kissed her and then put her hand on his erect penis.  He put his hand under her bedclothes and digitally penetrated her vagina with one finger.  There was a second occasion, which again involved the appellant coming into the complainer’s bedroom after a night out with her parents.  He put his hand under her covers.  She told him that she would scream if he did not leave her bedroom.  The appellant left and there was no further abuse.

[6]        The complainer in charge 3 was the appellant’s granddaughter.  She testified to abuse by the appellant on various occasions between 1 March 1998 and 30 March 1990.  She was between four and seven years old, and the abuse occurred when she visited her grandparents’ house.

[7]        On the first occasion, the appellant pressed his genitals against her body whilst lying on the couch.  She could feel his penis erect.  On one or two subsequent occasions, he placed his penis between her legs while she was in bed.  On the last occasion, the complainer entered a room where the appellant was masturbating to a pornographic film.  He asked her to masturbate his erect penis.

The sheriff’s report
[8]        At the conclusion of the Crown case, the trial sheriff heard a no case to answer submission.  It was submitted that the Moorov doctrine could not apply in light of the lengthy gap in time between charges 2 and 3.  The sheriff concluded that there was no specific rule of law as to the interval of time between the charges which rendered the doctrine of mutual corroboration inapplicable, and he repelled the submission.  He charged the jury that a lengthy time gap was not decisive in itself, but that it had to be weighed in the balance in deciding whether there was a single course of conduct.  In relation to the second ground of appeal, the sheriff did not consider there to be a fixed rule of law requiring him to direct the jury to find “extraordinary”, “special” or “compelling” features before they could convict of two similar charges separated by a long interval”.

Submissions
Appellant
[9]        The first ground of appeal was that the jury was not entitled to return verdicts of guilty of charges 2 and 3.  It was not appropriate to apply the Moorov doctrine to those charges since there was a gap of 11 years and there were no “special features” which made the similarities compelling” (AK v HM Advocate 2012 JC 74).

[10]      The second ground of appeal was that the sheriff misdirected the jury in the application of the Moorov doctrine to charges 2 and 3.  The sheriff ought to have directed the jury that, where the interval was a long one, it was necessary to consider whether there were any special features in the evidence that nonetheless made the similarities compelling.  The lack of such a direction was material and the jury’s verdict was a miscarriage of justice.

Crown
[11]      Notwithstanding the time interval, the Moorov doctrine was applicable.  The evidence was such as to demonstrate that the individual incidents were component parts of one underlying course of criminal conduct persistently pursued by the accused.

[12]      There were striking similarities between the charges.  Both charges involved pre-pubescent girls.  The appellant occupied a position of trust in respect of each complainer.  The first complainer referred to the appellant as “father Graham” and her parents socialised with him.  The second complainer was the appellant’s granddaughter.  Both of the offences occurred in a domestic setting, when the complainers were in bed.  Both charges involved the appellant exposing his erect penis.  The appellant encouraged each complainer to touch his penis and attempted to engage them in conversation about sexual matters.  The sheriff did not err in leaving the matter to the jury.

[13]      In respect of the second ground of appeal, there was sufficient in law for the Moorov doctrine to apply and it was proper that the matter was left to the jury to consider (Reynolds v HM Advocate 1995 JC 142).  AK v HM Advocate was not authority that the specific directions contended for were required.  The sheriff repeatedly emphasised that the jury had to decide whether an inference could be drawn that the individual incidents formed part of a course of conduct systematically pursued by the accused, and that the doctrine must be applied with caution.  He emphasised the potential effect of a long time interval between offences, and did so by reference to the long time interval between charges two and three.

[14]      Given that there was a sufficiency of evidence which the jury found to be credible and reliable, if an additional direction were required, there had been no miscarriage of justice (Hogan v HM Advocate 2012 JC 307 at para. 16).

Decision
[15]      The opinion in this case should be read in conjunction with that in JL v HM Advocate [2016] HCJAC 61.

[16]      In this case, the similarities were superficial, and the differences substantial.  Even the written case and argument for the Crown suggested that the offences were “opportunistic”.  There is nothing in the evidence which presents any compelling picture suggestive of a course of conduct systematically pursued by the accused. 

[17]      The sheriff had rejected a no case to answer submission.  At the time when that submission was made, there was a further, albeit earlier, charge involving a third complainer.  We do not have the detail of the circumstances as spoken to in evidence by that complainer.  We are unable to say that the sheriff erred in rejecting the submission of no case to answer, and indeed we were not invited to do so.  Miss Mitchell recognised that the addition of a further complainer speaking to similar events might have justified rejection of such a submission.  However, the jury having rejected the evidence in relation to the first complainer and acquitted on the charge relating to her, the jury were left with events relating to only two complainers separated by a substantial period of time.  We note the observations of Lady Paton in Cannell v HM Advocate 2009 SCCR 207 at paragraph 31:

“It is the function of the jury, properly directed, to assess the evidence and to decide whether or not various incidents involving the appellant were so linked in time, character and circumstances as to demonstrate a course of criminal conduct and a unity of purpose such that it would be appropriate to apply the Moorov doctrine and find mutual corroboration established:  Sinclair v HMA.  The Appeal Court is reluctant to interfere in such matters, but may do so where, for example there has been a misdirection;  or where, following upon a discriminating verdict of the jury, convicting of some charges but not others, certain time lapses emerge between the various incidents which are so excessive in the circumstances that the law would not permit the application of the Moorov doctrine:  cf Lord Justice Clerk Gill in Dodds v HMA at paragraph 7.”

[18]      In our view this is just such a case: the law would not permit the application of the Moorov doctrine to the circumstances of this case and this appeal must succeed. 

[19]      So far as the second ground of appeal is concerned, although the jury eventually applied the doctrine in circumstances which could not be justified, the directions, proceeding on the basis of a rejection of the no case to answer submission referred to above, were equally unexceptional.  The jury could have been in no doubt that (a) it was not sufficient merely to have two credible witnesses speaking to similar crimes;  (b) that the individual conduct, and all the circumstances required to be examined not just for similarities but for similarities which bound them together;  (c) that they had to apply the rule with caution;  (d) that a general disposition was not sufficient;  (e) that they required to be satisfied that these were not simply isolated incidents but that each offence was a link in a course of conduct systematically pursued by the accused;  (f) that any interval of time was a relevant factor to take into account in determining whether they could draw that conclusion;  and (g) that a “great deal of time can separate incidents and might speak against there being a single course of criminal conduct.”  In exceptional cases where there is one striking and singular element, or where the compelling circumstance comes from abuse of successive members of the same family, the trial judge will no doubt seek to put these matters into context in charging the jury.  However, we are satisfied that a direction of the kind referred to in the grounds of appeal is not required.

[20]      In light of our decision on the first ground of appeal, there was no proper basis on which the appellant could be convicted of charges 2 and 3 and we shall quash those convictions.