Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 61

HCA/2015/3310/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

JL

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  P Ferguson, QC; Faculty Services Ltd (for Thompson & Brown, Glasgow)

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

15 July 2016

Introduction
[1]        On 6 August 2015, at the High Court in Edinburgh, the appellant was convicted after trial of three charges involving the physical and sexual abuse of his daughter, younger cousin and step-daughter between October 2006 and April 2014.  There were fourteen charges on the indictment: the charges of which the appellant was convicted were charges 3, 6 and 11; the remainder were withdrawn by the Crown during the course of the trial.  On 24 September 2015, the appellant was sentenced to an extended sentence of fifteen years with a custodial term of twelve years.  He appeals against his conviction.

Charges 3, 6 and 11
[2]        Charge 11 was independently corroborated, but charges 3 and 6 depended upon the application of the Moorov doctrine for mutual corroboration.  The terms of the libel were that:

“(003) on various occasions between 1 October 2006 and 31 December 2006, both dates inclusive, at [addresses] in Scotland you JL did use lewd, indecent and libidinous practices and behaviour towards EF, your daughter, born 3 March 1992, aged 14 years, a girl then of or over the age of 12 years and under the age of 16 years, c/o Police Service of Scotland, [address] and make indecent and inappropriate remarks to her, compel her to remove her lower clothing, lick and kiss her vagina, remove your lower clothing, expose your penis, penetrate her mouth with your penis and ejaculate in her mouth, enter the bathroom while she was having a bath and enter her bedroom, put your penis on her mouth and attempt to penetrate her mouth with your penis, compel her to shave her pubic hair, repeatedly ask her to perform oral sex on you, ask to see her legs and pretend to check her skin for a skin condition and induce her to expose her legs and touch her legs, remove all your clothing and expose your naked body in her presence, and offer her a mobile phone to perform sexual acts with you: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6;

…

(006) on various occasions between 1 July 2013 and 12 October 2013, both dates inclusive, at [addresses] in Scotland you JL did assault GH, your cousin, born 1 March 2000, aged 13 years, c/o Police Service of Scotland, [address] and while she was asleep, lie on the bed where she was, when she woke, rub and stroke her legs repeatedly, rub against her, turn her around, place your arms around her, press your body against her, kiss her, place your hand over her mouth, put your hands under her underwear, handle her vagina, penetrate her vagina with your fingers to her injury and touch and wrestle with her; provide her with money, purchase cigarettes for her and other gifts: CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009;

…

(011) on various occasions between 1 December 2013 and 9 April 2014, both dates inclusive, at [an address] you JL, a person who had attained the age of 16 years, did have unlawful sexual intercourse with EP, born 2 August 1999, aged 14 years, c/o Police Service of Scotland, [address], a child who had attained the age of 13 years but had not attained the age of 16 years and penetrate her mouth with your penis and penetrate her vagina with your penis, and ask her not to disclose what you did to her: CONTRARY to Section 28 of the Sexual Offences (Scotland) Act 2009…”.

The issues
[3]        The appeal was directed against charge 3.  The appellant contended that the Moorov doctrine was inapplicable to that charge given the lapse of time between charges 3 and 6 (6 years and 6 months) and charge 11 (6 years and 11 months).  It was conceded that the Moorov doctrine could be applied as between charges 6 and 11.  It was also contended that the trial judge had misdirected the jury in the application of the Moorov doctrine in the context of the lengthy lapses of time between the charges.

The evidence
Charge 3
[4]        The complainer, (DOB 3 March 1992), was the appellant’s only daughter.  At the material time, she lived with the appellant, her mother and her two younger brothers.  She was off school recovering from viral meningitis.  She had been prescribed bed rest and a sofa bed was made up for her in the living room of the family home.

[5]        The complainer’s brothers were at school during the day and her mother worked as a school dinner lady.  The appellant would return home at lunch time, ostensibly to look after the complainer.

[6]        Her evidence was that during these lunchtime visits the appellant started speaking to her about sexual matters.  The appellant then said he could show her what could happen in a relationship, how boys would touch her and what they would expect from her.  While the complainer was on the sofa bed, the appellant removed his trousers and asked her to take off her pyjama bottoms.  The appellant then lay on the bed with her and proceeded to lick and kiss her vagina for about ten minutes.  The appellant then stopped what he was doing, got up and went to the bathroom, from where the complainer heard him vomiting.

[7]        The next incident happened a few days later.  The appellant had come home at lunch time.  He again spoke to her about sexual matters and about what he said that men would expect her to do.  He removed his trousers and underwear.  His penis was erect.  The appellant asked the complainer to come off the sofa and kneel down beside him.  He said that he was going to move her head towards his penis and he got her to put his penis in her mouth.  He instructed her to move her head backwards and forwards for five to ten minutes.

[8]        The complainer described further incidents in which the appellant induced her to take his penis in her mouth.  This happened about another ten times over the following fortnight.  On the last occasion, the appellant ejaculated in the complainer’s mouth.

[9]        About a week later, the complainer was in the bathroom of the family home having a bath.  The appellant came in and locked the door.  He removed his lower clothing and directed the complainer to take his penis in her mouth.  She did so.  She started to choke and feel sick.  The appellant laughed, walked away and urinated in the toilet.

[10]      On another occasion, the appellant came into the complainer’s bedroom at night whilst she was in bed.  She pretended to be asleep.  He touched his penis against her mouth and ran it along her lips.  She turned over and the appellant went away.

[11]      On a further occasion, the appellant came into the bathroom while the complainer was having a shower.  He instructed her to shave off all her pubic hair.  She was frightened and did what he asked.

[12]      The complainer had eczema.  The appellant would ask to look at her legs, ostensibly to check her skin.  He would feel up and down her legs and would move her underwear so that he could see her vagina.  This went on for a couple of years.

[13]      Sometime later, the appellant told the complainer that he would give her a mobile phone.  He added that she knew what she would have to do if she wanted to have the phone.  The complainer told the appellant that she was not willing to continue doing sexual things to him.  The appellant was angry, and he gave the new phone to his wife as a Christmas present instead.

Charge 6
[14]      The complainer in charge 6 was the appellant’s younger cousin.  Her date of birth was 1 March 2000.  She first met the appellant at a family wedding when she was about 8 years old.  The appellant lost touch with her family but then unexpectedly got back in touch when the complainer was about 13.  In the summer of 2013, the appellant started to become a regular visitor to the complainer’s family home.  She grew to trust him and communicated with him a lot on Facebook.  After a few weeks, the appellant began to speak about sexual matters in Facebook messages.  The complainer said that she treated this as a joke.  When the appellant visited her house, he asked her about boys and whether she had a boyfriend.  He would play fight with her.  On one occasion, he pinned her down in the kitchen and started to touch her on her breasts and her private parts.

[15]      Lengthy Facebook exchanges, showing the development of an inappropriately close and intimate relationship between the complainer and the appellant, were produced.  The complainer said that the appellant promised to give her his horse.  He started to collect the complainer from school and other places.  He gave her money, alcohol and cigarettes.  He invited her to stay at his house.

[16]      There came a time when the appellant broke up with his girlfriend.  He left his house and needed somewhere to stay.  The complainer’s family agreed that he could sleep in her bedroom, on the understanding that he would sleep at the bottom of her bed on top of the covers.  The complainer’s evidence was that he cuddled into her when she was in bed.  He came under the covers and lay beside her.  He removed his trousers and touched her on her arms, sides and hips.  This happened on a number of occasions.

[17]      The complainer described an occasion when she had been drinking alcohol and smoking cannabis.  She came home and went to bed.  She woke up to find the appellant in bed beside her.  He put his hand over her mouth and inserted his fingers into her vagina.  This went on for about ten to fifteen minutes.  The next morning the complainer was bleeding from her vagina.

Charge 11
[18]      The complainer in charge 11 was born on 2 August 1999.  She lived with her mother and her brother.  In 2013, the appellant started a relationship with the complainer’s mother and moved into their house.  She saw the appellant as a father figure.  The complainer did not have a good relationship with her mother.  The appellant would sit and speak to her about her father and if she had a bad day he would discuss it with her.

[19]      In December 2013, the appellant began to have regular sexual intercourse with her in her bed.  This happened on many occasions, sometimes five times a week.  The complainer also described the appellant putting his penis inside her mouth.  This would happen usually when they were alone in the house together.  The complainer had come to regard the appellant as her boyfriend.  He sent her a valentine’s card and bought her a pair of boots.  He told her that he would go to prison if she disclosed the abuse to anyone.  The complainer said that she loved the appellant and that she thought that he loved her.

[20]      The duvet from the complainer’s bed was examined by forensic scientists.  They found a mixed stain containing semen matching the appellant and cellular material matching the complainer.  Their opinion was that this could be as a result of vaginal drainage of semen and vaginal cells from the complainer following unprotected vaginal intercourse to ejaculation with the appellant.

The trial judge’s report
[21]      At the close of the Crown case, the trial judge heard a no case to answer submission.  It was submitted that the Moorov doctrine could not be applied as between charges 3 and 6, and 3 and 11 because of the significant lapse in time between those charges.  Esto the difference in time did not preclude the application of the doctrine, there was insufficient similarity in the character and circumstances of each charge.  The trial judge repelled the submission, concluding that there was sufficient evidence that the appellant pursued a common course of criminal conduct against all three complainers.  He identified many similarities between the circumstances of the offences, viz., the complainers were each teenage girls of 13 or 14 years old at the material times; the appellant was in a position of trust and authority in relation to each of them; the abuse in each case was penetrative in nature; and took place in a domestic setting.  The appellant had abused the first complainer, his daughter, when the opportunity arose.  In the case of his cousin, the second complainer, he cultivated a relationship with her and her family when she was 13 and the jury would be entitled to infer that his motive was to gain access to the child so that he could sexually abuse her.  Shortly after that, he began a relationship with the mother of the third complainer and his abuse of her proceeded at a time when he was living with her mother and acting as a father figure.  It was not difficult to discern a pattern and a common theme running through the evidence and the jury was entitled to infer that the appellant engaged in a single course of criminality directed against teenage girls when he was presented with the opportunity to do so.  The time interval between the charges did not negate the existence of a single course of criminality.

Submissions
Appellant
[22]      The first ground was that the trial judge had erred in repelling the no case to answer submission.  The gap in time between charge 3 and charges 6 and 11 was such that it was necessary to identify an extraordinary feature or striking similarity between the character and circumstances of the respective charges before the doctrine of mutual corroboration could apply (KH v HM Advocate 2015 SCCR 242).  The similarities were not extraordinary.  There were significant differences between charges 3 and 6: the conduct against the first complainer occurred during the day, whereas the conduct against the second complainer took place at night; only the first complainer was particularly vulnerable when the conduct started, being home from school unwell; there was no digital penetration of the first complainer and the second complainer did not testify to any oral sex; there was no “grooming” of the first complainer, as there had been with the second complainer; the conduct against the first complainer was more serious than that against the second complainer; only the first complainer was asked to shave her pubic hair.

[23]      There were significant differences between charges 3 and 11: the conduct with the third complainer was described as “consensual”, whereas that against the first complainer was “non-consensual”; the first complainer did not receive any text messages of a sexual nature; the third complainer spoke to sexual intercourse with the appellant, whereas the first complainer did not; the third complainer did not speak to the appellant performing oral sex upon her, unlike the first complainer; the third complainer was not asked to shave her pubic hair.

[24]      In the circumstances, there were no extraordinary or special features and the trial judge erred in failing to sustain the no case to answer submission.

[25]      The second ground of appeal contended that the trial judge misdirected the jury by failing to provide an adequate direction to the jury on how to approach the gap in time between the offences.  He ought to have given the jury a clear and unequivocal direction that where the time gap between the offences was a long one, the jury required to consider whether there were any extraordinary features in the evidence that made the similarities compelling.

Crown
[26]      Notwithstanding the time intervals, 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.

[27]      There were striking similarities between the charges.  There was a common theme underlying them.  The appellant prefaced the abuse of all three complainers with a discussion about sexual matters. In charges 3 and 6, there were discussions about boys and boyfriends prior to the abuse.  Each complainer was abused in her home, and each was a member of the appellant’s extended family.  The offending behaviour involved abuses of positions of trust and authority in all three charges. Inducements of gifts were offered to each of the complainers.  The abuse in each case was penetrative in nature and it was misconceived to distinguish different forms of penetrative abuse (HMcA v HM Advocate 2015 JC 27 at para. 10).  There were threats of the consequences of revealing the abuse (charges 3 and 11). The complainers were all aged 13 or 14.  In charges 3 and 11, the abuse was perpetrated when the complainers were alone in their family homes and off school.

[28]      In respect of the second ground of appeal, the Crown submitted that 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 jury was properly directed that the issue for their determination was to consider whether an inference could be drawn that the individual incidents formed part of a course of conduct systematically pursued by the accused.  The jury was directed to apply the doctrine with caution.

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

Decision
[30]      The basic principles hardly bear re-stating.  There is no maximum interval of time fixed by law beyond which the Moorov principle cannot apply (AK v HM Advocate 2012 JC 74, Lord Justice Clerk (Gill) at para. [14]).  The probative effect of a significant time gap can only be determined in light of all the circumstances of the case (AS v HM Advocate 2015 SCCR 62, Lord Justice Clerk (Carloway) at para. [10]).  The search is always for an underlying unity of intent such as to indicate a course of conduct on the part of the accused.  The more similar the conduct is in terms of character, the less important a significant time gap may be (AS v HM Advocate, supra).  Conversely, ordinary similarities may suffice where there are shorter gaps because a course of conduct may be more readily inferred.  Even where there has been a substantial interval of time, compelling similarities will merit consideration of the whole circumstances for the jury (AK v HM Advocate, supra).

[31]      The case of AK v HMA 2012 JC 74 was a case involving two complainers in which the gap between the charges was one of 13 years.  There were some conventional similarities between the offences, but it was accepted by the Crown (para 14) that these were not sufficient to remove the case from the category of isolated instances of similar conduct to one where the inference of a course of conduct could legitimately be drawn.  It was a case where there was one singular striking factor which was so individual that it allowed that inference to be drawn, when the other circumstances themselves would not have permitted it.  As Lord Emslie put it, the doctrine was not stretched, it was found applicable in the “quite exceptional circumstances” of the case.  It is in this context that one requires to read the words of Lord Justice Clerk Gill in paragraph 15 that the question was whether there were “some extraordinary features in the evidence that could be said to change the whole complexion of the Crown case”.  The court was not setting any general test of exceptionability before circumstances could be considered sufficiently compelling to admit of the application of Moorov in a case where there is a long time interval between events spoken to by one complainer and those spoken to by another (RF).  As has been pointed out “even a long interval may be acceptable if there are other compelling similarities” (Stewart v HMA 2007 JC 198, Lord Gill, LJC, paragraph 23).  Whether such compelling circumstances exist requires to be addressed by an assessment of the evidence as a whole.  The evidence must be such as to show that the events are linked in such a way as to justify the conclusion that each is a component part in a course of conduct being systematically pursued by the accused.  It is not enough that the events constitute isolated instances of similar conduct, or show a propensity to act in a particular way.  As the court explained in MR v HMA 2013 JC 212 (Lord Carloway, paragraph 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 (see NKS v HM Advocate, Lord MacLean, delivering the Opinion of the Court, para 10) such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused (Ogg v HM Advocate, Lord Justice Clerk (Aitchison), page 158;  AKA v HM Advocate, Lord Justice Clerk (Gill), para 10.  Whether these similarities exist will often be a question of fact and degree requiring, in a solemn case, assessment by the jury (Reynolds v HM Advocate, Lord Justice General (Hope), delivering the Opinion of the Court, page 508) and a proper direction of the trial judge.”

As the court also noted in AS v HM Advocate 2015 SCCR 62, Lord Justice Clerk (Carloway) paragraph 10:-

“The particular relevance of a significant time gap between offences can only be determined in light of all the circumstances.  The more similar the conduct is in terms of character, the less important a significant time gap may be…  Compelling similarities will merit consideration of the whole circumstances by the jury, even where there has been a substantial interval of time…”.

Applying these dicta to the circumstances of the present case, we consider that the features relied on by the advocate depute and referred to by the trial judge present a highly compelling picture suggestive of a course of conduct systematically persisted in by the appellant.  These features are:

• The abuse in all three charges was prefaced by the appellant talking to the complainers about sex.  In charge 3, the complainer was asked if anything of a sexual nature had taken place between her and her boyfriend.  The appellant said he would show the complainer what could happen in a relationship, how boys would touch her and what they would expect of her. In charge 6, the appellant chatted to the complainer on Facebook about his private parts.  When he visited the complainer at home, he asked her about boys and boyfriends.  The appellant asked the complainer whether she was bi-sexual and asked whether she had sex with girls.  In charge 11, the appellant sent text messages to the complainer asking her to perform sexual acts on him.
• Each complainer was abused in her home.
• Each complainer was a member of the appellant’s extended family and in respect of whom the appellant was in a position of trust and authority.
• Inducements of gifts were offered to each of the complainers.  In charge 3, the appellant offered the complainer a new mobile phone subject to her continuing to perform sexual acts on him.  In charge 6, the appellant promised the complainer his horse and gave her money, cigarettes and alcohol.  In charge 11, the appellant sent the complainer a valentine’s card and bought her a new pair of boots.
• The abuse in each case was penetrative.  Charges 3 and 6 involved the appellant compelling the complainers to take his penis in their mouths; charge 11 concerned digital penetration of the complainer’s vagina.
• The appellant threatened the complainers in charges 3 and 11 with consequences of revealing the abuse.  In charge 3, the appellant told the complainer that she would not be believed if she told anyone and that reporting the abuse would result in her younger brothers being taken away by the social work department.  In charge 11, the appellant told the complainer that he would go to prison if she reported the abuse to anyone.
• The complainers were each 13 or 14 years old.
• The circumstances of the perpetration of the abuse.  In charge 3, the complainer was off school recovering from meningitis and at home alone.  The complainer in charge 11 was also off school and at home alone.  In charge 6, the appellant inveigled his way into the complainer’s bedroom and abused her when she had been drinking alcohol and smoking cannabis.
• The calculating manner in which the abuse was perpetrated.  In charge 3, the complainer was off school and at home recuperating. In charge 6, the appellant gained the trust of the complainer and her family to be permitted to sleep on her bed. In charge 11, the appellant would speak to the complainer about her father and if she had a bad day he would discuss it with her.

[32]      In the circumstances, the evidence presented a compelling picture indicative of a course of conduct systematically pursued by the appellant.  The first ground of appeal fails.

[33]      The remaining issue relates to the question whether the trial judge required to identify for the jury the specific elements of the evidence which might make the case sufficiently compelling.  We are satisfied that that is not required.  It is the function of the judge to assess whether there is a sufficiency of evidence.  It is for the jury to say whether looking at the evidence as a whole, they find it sufficiently compelling to entitle them to conclude that the incidents are all component parts in a course of conduct.  The directions in this case were entirely unexceptional and it was made clear to the jury that they were looking for evidence which allowed them to conclude that the incidents were bound together as parts of a single course of criminal conduct systematically pursued by the accused.  In that regard they were advised that the doctrine required to be applied with caution, that a general disposition was not sufficient and their attention was specifically drawn to the gap in time.  We do not consider that any more was required.

[34]      This appeal is refused.