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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> TN, APPEAL AGAINST CONVICTION BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_20 (22 February 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_20.html
Cite as: 2018 GWD 8-99, [2018] HCJAC 20, [2018] ScotHC HCJAC_20, 2018 SCCR 109
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lady Paton
Lord Turnbull
OPINION OF THE COURT
[2018] HCJAC 20
HCA/2017/000488/XC
delivered ex tempore by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
TN
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: D Nicolson, Angus McLennan & Co
Respondent: McSporran QC, AD; Crown Agent
22 February 2018
[1] The appellant was indicted on charges of child neglect, charges of assault of his
children, several charges of a sexual nature in relation to his daughter, KN, and one such
charge in relation to the daughter of his brother’s domestic partner, CS. He pled guilty to
the neglect charges and was convicted after trial of various physical assaults. He was also
convicted of two charges of a sexual nature in relation to KN, charges 8 and 10, a third
charge (9) being found not proven. He was also convicted of the charge relating to CS (16).
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2
[2] Charge 8 narrated that during a period when KN was between 4 and 6 years of age
(October 2001-October 2003), the appellant, acting with other males, permitted and
encouraged those males to engage in sexual intercourse with the child, handle her private
parts, digitally penetrate her vagina, restrain her and tie her hands, and penetrate her vagina
with their penises, thus raping her. The charge also extended to physical assaults.
[3] Charge 10 involved a single instance of rape of KN by the appellant when she was
between 5 and 6 years of age (October 2002-October 2003), involving violence and
compulsion.
[4] Charge 16 involved a single instance of lewd and libidinous behaviour towards CS,
when she was 13-14 (May 2006 to May 2007), which included pulling her onto her back,
restraining her, pulling down her trousers, handling her vagina, and digitally penetrating
her vagina.
[5] The complainer in each charge gave evidence in accordance with the narrative in the
respective charges.
[6] The complainer’s brother WN gave evidence that he remembered that there were
always a lot of strange men coming to their house. There were a lot of male figures between
20 and 40 years old who would go into a bedroom with KN, two, three or four at a time.
The other children would not be allowed in. One man would linger outside to prevent this.
They would have a pint or a joint and then go into the room with KN. On one occasion the
appellant and another man went into the room. This evidence was not relied upon as
corroboration, but as supportive of the credibility and reliability of KN. In submissions it
was acknowledged that this evidence provided significant independent support for the
evidence of KN. However, the question remained whether there was corroboration of her
evidence relating to the specified conduct.
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[7] A submission of no case to answer had been made in relation to charge 8. It was
accepted that the evidence given by CS was capable of corroborating the evidence of KN in
relation to charge 10; but it was argued that the circumstances of charge 8 were too
dissimilar from those of charge 16 to permit of the operation of the doctrine of mutual
corroboration.
[8] In repelling the submission of no case to answer, the trial judge stated:
“I have not found this an easy point to decide. It seems to me, to use an expression
from the field of photography, to depend upon the field of view of the conduct in
question whether the necessary underlying similarity of conduct exists between the
two charges. Both involve penetration of a child's vagina, but there are also striking
differences. I would be entitled to sustain the submission of no case to answer only if
I were satisfied that on no possible view of the evidence would it be open to the jury
to apply the Moorov doctrine. I have concluded that I could not be so satisfied. On
the other hand, there are, in my opinion, sufficient differences in the nature of the
conduct in charges 8 and 16 to entitle a jury to hold that the Moorov doctrine should
not be applied. The matter is one for the jury, not for me.”
Grounds of appeal
[9] The basic propositions to be addressed when considering the application of the
look for are the conventional similarities in time, place and circumstances in the behaviour
such as demonstrate that the individual incidents are component parts of one course of
criminal conduct persistently pursued by the accused. The nomen juris of each criminal act is
immaterial. The alleged course of conduct has to be viewed as a whole, rather than in
individual compartments. The question is whether there is an underlying unity of conduct.
Whether these similarities exist will often be a question of fact and degree requiring, in a
solemn case, assessment by the jury. There is no rule that what might be perceived as less
serious criminal conduct cannot provide corroboration of what is libelled as a more serious
crime. The more similar the conduct is in terms of character, the less important a significant
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time gap may be; whereas a course of conduct may be more readily inferred from ordinary
similarities where the gap is time in short. Caution must be exercised, especially where
there are few instances of behaviour under consideration.
[10] It was accepted that the evidence on charge 16 could corroborate the evidence
relating to charge 10, and that no issue relating to any gap in time could arise. The
argument for the appellant was that the incident spoken to by CS was too dissimilar to the
events spoken to by KN to allow a jury to conclude that they were part of the one course of
conduct systematically pursued by the appellant. One charge involved the appellant art and
part in conduct of the utmost depravity, permitted and encouraged by him, and involving
both digital penetration and penile/vaginal rape. The other was a discrete offence, as actor
involving inter alia, digital penetration of the complainer's vagina. There were some
similarities but the conduct was fundamentally different. The appellant was only guilty art
and part in charge 8, whereas he was actor in charge 16. The method of restraint in each
case was different, a rope having been used on occasion in charge 8. There were only two
complainers, the minimum possible that would allow the doctrine to operate. It could not
be said that the individual incidents were component parts of one course of criminal
conduct persistently or systematically pursued by the appellant.
Decision and analysis
[11] We are satisfied that the trial judge was correct in repelling the submission made to
him. The submission fails to take into account the totality of the circumstances in which the
offending behaviour took place. As has been noted above, the conduct must be looked at as
Clerk (Carloway) at para 11:
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“In these circumstances the trial judge was correct to report that it is inappropriate to
approach matters in a compartmentalised way. The fundamental point remains that
of whether the evidence is capable of indicating a course of conduct systematically
pursued by an accused. The individual behaviour exhibited at different times may
vary, but it is the course of conduct as a whole which must be examined. The fact
that only some of the incidents in a course of conduct involved penetration, while
others do not, does not lead to the conclusion that they cannot all be part of one
course of conduct. The fact that only the first and final charges involved any form of
penetration does not mean that only those two charges should be looked at when
considering whether there is a sufficient temporal link, and links by way of other
facts and circumstances, sufficient to provide the necessary mutual corroboration.”
[12] The focus should be on the evidence given by each witness, and whether that
evidence is indicative of a course of conduct. The charges are the mechanism by which that
course of conduct is specified, and by which its criminality is asserted, but to focus too
strongly on the individual charges is to risk compartmentalising the evidence rather than
asking whether the evidence as a whole indicates a course of conduct. It will often be the
case that behaviour is libelled in different charges for technical or presentational reasons.
The conduct in charge 8, was libelled as part of a course of conduct which included not only
the conduct of the appellant as actor in relation to CS referred to in charge 16, but his rape,
as actor, of KN referred to in charge 10. The conduct in charge 8 was part of a wider course
of conduct involving KN, in which the appellant was both actor and acting in concert with,
and as facilitator of, others during an overlapping period of time. The fact that in charge 8
the appellant was not actor, but was guilty art and part of the rapes committed by the other
men (at his instigation) is of no moment: the concept of art and part responsibility means
that he is equally guilty as the actors. The conduct contained many similarities, all as
identified by the advocate depute: the majority of the offending occurred in the
complainers’ respective homes within their respective bedrooms and in Edinburgh. Both
complainers were female children within the appellant’s family circle. In each case the
offending involved penetrative vaginal abuse. In each case the offending was accompanied
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by physical restraint. KN spoke to the men always being drunk, and the appellant generally
so; CS spoke to the appellant being drunk.
[14] The submission for the appellant also fails to take into account a further similarity of
environment of a controlling, dysfunctional, domestic relationship.”
[15] There was considerable evidence in the present case as to the uncaring,
dysfunctional, and neglectful homes of each complainer at the relevant times, the domestic
environments of both being environments categorised by domestic violence, neglect, and
drug and alcohol abuse. The advocate depute was in our view correct to submit that the
complainers were vulnerable not just because they were children, but because they lived
within that environment.
[16] In any case in which the application of Moorov arises it will generally be possible to
point to both similarities and differences. If the features of time, place and circumstances
would entitle a jury to draw the conclusion that the events were all part of one course of
conduct, the matter should be remitted to them for their assessment. Delivering the opinion
of the Court in Reynolds v HMA 1995 JC 142, the Lord Justice General (Hope) stated (p146 D):
“We accept that there was a process of evaluation to be conducted, because there
were dissimilarities as well as similarities. On the other hand, we do not accept that
on no possible view could it be said that there was any connection between the two
offences. Where the case lies in the middle ground, the important point is that a jury
should be properly directed so that they are aware of the test which requires to be
applied.”
[17] The similarities in the context of all the evidence in this case were such that it would
be open to the jury to apply the doctrine of mutual corroboration. Whether they should do
so was a matter of evaluation of the evidence. In our view the trial judge was correct to
repel the submission of no case to answer, and the appeal falls to be dismissed.