Appeal Against Conviction By Dm Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Brodie,Lady Clark Of Calton |
| Neutral Citation | [2017] HCJAC 19 |
| Docket Number | HCA/2016-000463 |
| Date | 31 March 2017 |
| Published date | 31 March 2017 |
| Court | High Court of Justiciary |
| Year | 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 19
HCA/2016-000463/XC
Lord Brodie
Lady Clark of Calton
Lord Turnbull
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL AGAINST CONVICTION
by
DM
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Ogg (sol adv); Paterson Bell, Solicitors (for Beltrami & Co Ltd Glasgow)
Respondent: Cottam (sol adv), AD; Crown Agent
31 March 2017
Introduction
[1] On 18 July 2016 the appellant, whose date of birth is in 1961, went to trial at Kilmarnock Sheriff Court on an indictment containing five charges of sexual offences committed against young girls.
[2] Charge 3 was withdrawn by the Crown in the course of the trial. On 21 July 2016 the jury, by a majority, convicted the appellant of charges 1, 2 and 5. They found charge 4 not proven, again by a majority. The charges of which the appellant was convicted were as follows:
“(1) on various occasions between 4 April 1987 and 3 April 1990, both dates inclusive, at [an address in East Renfrewshire] you … did use lewd, indecent and libidinous practices and behaviour towards CG, your niece … then aged between 7 and 9 years … and did enter her bedroom while she was asleep, cause her to waken, stand naked beside her bed exposing your penis, rub her legs, tell her to be quiet, force your hand between her legs, handle her vagina and did digitally penetrate her vagina.
(2) on an occasion between 2 June 1996 and 1 June 1997, both dates inclusive, at [an address on Arran] you … did use lewd, indecent and libidinous practices and behaviour towards MB, your niece … then aged 15 years … a girl then of or over the age of 12 years and under the age of 16 years, and did enter the room where she slept, and while naked lay down beside her on a sofa and touch her on the body; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6.
(5) on an occasion between 12 September 2005 and 11 September 2008, both dates inclusive, at [the locus specified in charge 2] you … did use lewd, indecent and libidinous practices and behaviour towards BA, your niece … a girl then of or over the age of 12 years and under the age of 16 years, and did enter the room where she slept, place your hand under the covers, place your hand inside her lower clothing and did handle her vagina;
CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6”.
[3] The sheriff adjourned the diet for the preparation of a Criminal Justice Social Work Report and remanded the appellant in custody. On 15 August 2016 the sheriff sentenced the appellant to 42 months imprisonment (2 years’ imprisonment in respect of charge 1 and nine months’ imprisonment consecutively in respect of each of charges 2 and 5). The appellant has appealed against conviction.
Ground of Appeal
[4] The only ground of appeal in respect of which leave has been granted is that the sheriff misdirected the jury on the possible application of mutual corroboration in relation to the charges of which the appellant was convicted. Reference is made to the passages in the transcript of the sheriff’s charge where he gives the relevant directions. It is averred that the sheriff omitted to make any reference to the intervals of time between the various charges whereas it is submitted that in the circumstance of the case he had a duty to bring to the attention of the jury the issue of the intervals of time and to point out to them that this had the potential “to undermine the operation of the Moorov doctrine”. It is further submitted that this misdirection by omission was compounded by the sheriff saying “the defence ... has not suggested that the circumstances of each incident are so dissimilar that the rule cannot be applied”. It is averred that this comment conveyed the impression that the defence conceded that the Moorov doctrine applied on the facts of the case. A miscarriage of justice has accordingly resulted.
Circumstances of the Charges in Respect of which the Appellant was Convicted
[5] The complainers in charges 1, 2 and 5 were all nieces of the appellant. Each spoke to the appellant having sexually assaulted them in terms of the respective libels. The offence in charge 1 took place in the complainer’s home when the appellant came to visit. The complainer, CG, gave evidence that the appellant visited her family’s home about once a month and would stay overnight. The offences in charges 2 and 5 took place in the appellant’s home on Arran when the complainers MB and BA were staying there overnight.
[6] Each complainer spoke to having had a close relationship with the appellant at the time of the offences. The complainers each described the appellant entering the room in which they were asleep. In each case it was said that the appellant, believing the child to be asleep, touched the complainer on the lower body and on their private parts; on each occasion he immediately stopped when the complainer reacted or showed awareness of what was happening. The complainers each described the appellant as being drunk or smelling of alcohol at the time when he entered their rooms.
[7] The offence in charge 1 was libelled as having been committed between April 1987 and April 1990. The offence in charge 2 was libelled as having been committed between June 1996 and June 1997. The offence in charge 5 was libelled as having been committed between September 2005 and September 2008. Thus, the temporal gap between charges 1 and 2 was some 6 years, and the temporal gap between charges 2 and 5 was some 8 years.
Submissions for the Appellant
[8] It was accepted on behalf of the appellant that the sheriff had given the jury the standard directions regarding the Moorov doctrine as set out in the Jury Manual (Judicial Institute for Scotland, January 2015) at section 11.2. In particular, he had directed them that if they were satisfied that the alleged crimes were so closely linked by their character, by the circumstances of their commission, by the place of their commission and by the time of their commission, as to bind them together as parts of a single course of conduct systematically pursued by the appellant, then the evidence of one witness about the commission of one crime could corroborate the evidence of another witness about the commission of another crime. The sheriff then gave the jury the example of match fixing which appears in the Jury Manual and which refers to incidents “within a reasonably short period of time” which might provide mutual corroboration one of the other. The sheriff thereafter concluded his directions on Moorov by telling the jury that in the present case there was enough evidence in law as to the crimes alleged being sufficiently close in time, character, place and commission and circumstances for the Moorov doctrine to apply, but that it was for them to decide if the necessary link in time, character and circumstance had been established.
[9] It was submitted that the interrelation of time in the application of the Moorov doctrine was a “vital consideration. …Acts isolated by a long period of time do not make a course of conduct”: Moorov v HMA 1930 JC 68, Lord Sands at 89; Reilly v HMA [2017] HCJAC 5 at paragraph [19]. However, no hard and fast rule is laid down in relation to time and the application of the Moorov doctrine; the Appeal Court has declined to lay down any maximum interval between two offences: Reilly at paragraph [19].
[10] Reference was made to three cases where there had been a significant gap in time between incidents of alleged offending and where the application of the Moorov doctrine had been in issue: AK v HM Advocate 2011 SCCR 495, G v HM Advocate 2016 SCCR 360 and L v HM Advocate 2016 SCCR 365. In each of these cases attention had been drawn in the course of jury directions to the relevant gap in time. That, it was submitted, is the practice which should be followed in every case where the lapse of time was “significant”. There was a duty on a trial judge to bring the issue of the intervals of time to the attention of the jury and to point out that the time gap might be such as to make the Moorov doctrine inapplicable. To the extent that the Jury Manual suggested otherwise, it was wrong.
[11] It was submitted that the misdirection by omission had been compounded by the sheriff’s remark to the jury that the defence “has not suggested that the circumstances of each incident are so dissimilar that the rule can’t be applied”. The defence had not suggested that there was insufficient evidence in law to allow the application of the Moorov doctrine but those now acting for the appellant understood the defence position at trial to
have been that the circumstances of the offences were dissimilar and that the jury ought not to apply the doctrine. It was submitted that the sheriff’s comments had erroneously conveyed the impression that the defence had accepted that the Moorov doctrine applied on the facts of the case.
Submissions for the Crown
[12] The advocate depute began by addressing the question of what had been the defence position at trial as to the applicability of the Moorov doctrine. He advised the court that his information, based on a report by the procurator fiscal depute who had conducted the trial, was that what appeared in the sheriff’s report was accurate; counsel who had appeared for the appellant at trial had not sought to persuade the jury that, even were the complainers to be believed, the Moorov doctrine was nevertheless not applicable.
[13] The advocate depute’s further submissions were shortly stated. In the cases which had been referred to, AK v HM Advocate, G v HM Advocate, and L v HM Advocate, the issue of the length of the lapse of time between instances of alleged offending had been raised in submissions of no case to answer and, at least in the cases of AK and L but apparently also in G, then returned to in parties’ speeches to the jury. In that sense, length of lapse of...
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