As Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Drummond Young,Lord Bracadale |
| Neutral Citation | [2014] HCJAC 135 |
| Published date | 09 December 2014 |
| Year | 2014 |
| Date | 27 November 2014 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2014-1751 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice Clerk Lord Bracadale Lord Drummond Young
| [2014] HCJAC 135 HCA/2014-1751/XC
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
NOTE OF APPEAL AGAINST CONVICTION
by
AS Appellant;
against
HER MAJESTY’S ADVOCATE Respondent:
_____________ |
Appellant: CM Mitchell; John Pryde & Co
Respondent: P Kearney AD; the Crown Agent
27 November 2014
Introduction
[1] On 7 February 2014, following a 5 day trial at Hamilton Sheriff Court, the appellant was found guilty of 3 offences of a sexual nature. The first was lewd, indecent and libidinous practices towards his son, JS, then aged between 6 and 12 years, between 1988 and 1994 at an address in Hamilton. The second was using such practices towards his daughter, MS, then aged between 12 and 16, at another address in Hamilton between 1990 and 1992. The final charge was a single sexual assault on SM, his granddaughter and the daughter of MS, a girl then aged 6, at the same address as in the second charge in June 2012. The verdicts on the first two charges were unanimous, but by a majority on the third. On 28 March 2014, the appellant was sentenced to 2 years imprisonment.
Evidence
[2] In relation to the first charge, the evidence of JS was that, when the appellant returned home from being out drinking, he would enter JS’s bedroom, which JS shared with his younger brother. The appellant would put his hand down the front of JS’s pyjamas and touch his genital area. This occurred in the then family home in Hamilton. It stopped when the family moved to a different address in that town, namely the locus in the remaining two charges.
[3] In relation to the second charge, the events libelled occurred in the new family home and involved the appellant’s daughter. She was in the habit of getting into her parents’ bed because of nightmares. When she did this, she said that, on occasions, possibly when the appellant had had a drink, the appellant would touch her breast area and her private parts, over and under her pants, progressing to inserting his finger into her vagina.
[4] After the separation of the appellant and his wife, MS continued to live in the family home, latterly with her husband JM and their daughter SM. On 2 June 2012, the appellant had returned home with JM, having been out drinking. The appellant was quite drunk. During the course of the evening, JM saw the appellant moving his hand towards the waistband of SM’s shorts. He put his hand inside the front of these shorts. This was at a time when SM’s younger brother was also in the room.
Submissions
[5] The central contention for the appellant was that the sheriff ought to have sustained a no case to answer submission to the effect that there was insufficient evidence to prove the third charge in respect of SM in 2012, given the time lapse between that offence and those alleged to have occurred with the appellant’s children almost two decades earlier. The submission had been repelled by the sheriff on the basis that she was satisfied that there was a close correspondence in the character, place and circumstances of all three charges, albeit that there was, what she phrased as, a “generational interval”, which explained the time gap.
[6] It was contended that the principle of mutual corroboration outlined in Moorov v HM Advocate 1930 JC 68 did not apply in respect of the final incident in 2012, which occurred after an interval of 18 years. There was no “course of conduct” involving that incident. Where a long period of time had elapsed, the circumstances of each offence had to contain more than a superficial similarity. Rather, there had to be special features which made the similarities compelling (AK v HM Advocate 2012 JC 74, at paras [13]‒ [14]). In AK, a gap of some 13 years would have been regarded as too long in the absence of an extraordinary feature involving the use of certain words. This case involved no such feature, nor was it one in which there was no opportunity to commit similar offences over the time period concerned.
[7] It was accepted that there were similarities between the offences. There were dissimilarities too. For example, the first two charges involved behaviour occurring at night time in children’s bedrooms, when they would have been in their night clothes. The final charge involved a single incident occurring during...
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