A K V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Emslie,Lord Brodie,Lord Justice Clerk |
| Judgment Date | 20 May 2011 |
| Neutral Citation | [2011] HCJAC 52 |
| Date | 03 June 2011 |
| Docket Number | XC700/10 |
| Court | High Court of Justiciary |
| Published date | 03 June 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Emslie Lord Brodie | [2011] HCJAC 52 Appeal No: XC700/10 OPINION OF THE LORD JUSTICE CLERK In the Appeal by AK Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the appellant: I Paterson, sol adv; Paterson Bell, Edinburgh
For the Crown: Scullion, AD; Crown Agent
20 May 2011
The conviction
[1] The appellant was convicted at Dunfermline High Court on 13 September 2010 of the following charges:
"(1) on various occasions between 23 January 1988 and 22 January 1995, both dates inclusive, at [locus] you [AK] did use lewd, indecent and libidinous practices and behaviour towards [M] ... your nephew ... and did; (1) enter his bedroom, place your hands under his bed covers, place your hand inside his clothing, handle his private member and masturbate him, masturbate in his presence, and (2) seize hold of him, struggle with him, attempt to insert your private member into his hinder parts and attempt to have unnatural carnal connection with him; ...
(4) on 30 November 2008 at [same locus] and within a vehicle outside [same locus] you [AK] did use lewd, indecent and libidinous practices and behaviour towards [D] ... your nephew ... then aged 12 years, and did handle his private member and place your hands inside his clothing and touch him on the body."
Charge (2) was a charge of indecent assault against [M]. It was withdrawn at the end of the Crown case. Charge (3) was a charge of lewd, indecent and libidinous practices against the complainers' sister, [A]. The jury acquitted the appellant on this charge.
The trial
[2] The complainer [M] spoke to the acts libelled in charge (1) in all of its particulars. Those acts began when he was aged about 10 or 101/2 years old and ended when he was about 13.
[3] The complainer [D] was about 15 years younger than [M]. He spoke to the acts libelled in charge (4). He said inter alia that, while abusing him, the appellant kept saying "I've missed you, [M]," to which he replied "I'm [D]." [D] had been five years old, or younger, when he had last been at the appellant's house.
[4] In relation to these charges, there is no other evidence that is relevant to the point in this appeal.
[5] The defence made a submission of no case to answer on the basis that the Moorov principle could not apply in relation to charges (1), (2) and (4). The trial judge repelled the submission.
[6] The trial judge gave the jury general directions on the nature of the Moorov principle. He then explained that they could apply it and return verdicts of guilty if they accepted the evidence of at least two of the three complainers. He canvassed various ways in which that could come about. He then considered how Moorov could apply between charges (1) and (2). He emphasised the importance of the interval of time between those charges, namely 8 years and a few months and commented that "in general it would be very difficult to think of a time lapse of this length as being consistent with a single course of conduct."
[7] The trial judge then directed the jury on the approach that they should take in considering charge (1) along with charge (4). This is what he said.
"The evidence given by [M] in relation to charge 1 and by [D] in relation to charge 4 would be capable, taken together, of providing corroboration for each of charges 1 and 4. Again, you would need to look at this evidence as a whole, you would take account of any similarities and you would take account of any dissimilarities. But of course, in this example, the issue of lapse of time would be an even more important consideration. The time lapse between the end of the conduct described in charge 1 and the date of the conduct described in charge 4 is a period of 13 years and a few months. Now, 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. But the Crown's contention is that such an extraordinary feature is present in the circumstances of this case and they say that you can see that extraordinary feature in a particular combination of circumstances. They point to the evidence firstly that [M] was 13 when the abuse of him stopped. Secondly, they point to the evidence that the accused had no opportunity to abuse [D] for many years up until the visit in November of 2008 when he was aged 12 , and thirdly, they point to the evidence that when the accused abused [D] he repeatedly said "I've missed you [M]". Now the Crown's contention is that in the combination of these facts you can see evidence of not just of what the accused was doing but also of what was in his mind at the time, and they say that that combination of evidence illuminating these two features provides clear evidence of a[n] underlying single course of conduct. Well that's the Crown's contention. It will of course be up to you to decide what to make of any of the evidence led about these matters. But before you could even consider using the doctrine of mutual corroboration as between charges 1 and 4 you would need to be satisfied that the visit of November 2008 provided the accused with the first opportunity of involving [D] in a course of conduct of this...
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