Dodds v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 17 July 2002 |
| Date | 17 July 2002 |
| Docket Number | No 2 |
| Court | High Court of Justiciary |
JC
Lord Justice Clerk (Gill), Lords Kirkwood and Osborne
Justiciary—Evidence—Sufficiency—Corroboration—Mutual Corroboration—Moorov Doctrine—Whether court should apply doctrine more rigorously where charges are not recent—Whether in cases of antique origin accused should have benefit of maximum time latitude where period of libel is extensive
Justiciary—Evidence—Sufficiency—Corroboration—Mutual Corroboration—Moorov Doctrine—Multiple charges—Whether judge should direct the jury on different combinations of charges
Justiciary—Evidence—Sufficiency—Corroboration—Mutual Corroboration—Moorov Doctrine—Whether there is a maximum time between offences beyond which the doctrine cannot be applied
Justiciary—Evidence—Sufficiency—Corroboration—Mutual Corroboration—Moorov Doctrine—Rape—Conviction on four charges—Whether similarities of circumstance and time period between the charges was such that jury would be entitled to apply the doctrine—Whether sufficient evidence to convict
The appellant was indicted with three others, and faced seven charges of assault and rape involving seven women. He was found guilty on four charges: numbers 1, 2, 10 and 15, while three were found not proven. Charge 1 libelled rape on two occasions between 22 August 1969 and 25 July 1970 on a complainer aged fourteen. Evidence was led that the appellant had walked the complainer home, and dragged her off the street where the rapes occurred out of doors on open ground, with no others present. Charge 2 libelled rape on one occasion between 29 June 1972 and 26 February 1973. The complainer was aged twenty-eight, and suffered from cerebral palsy. Evidence was led that the appellant had come to the complainer's house to stay with her, and the rape had taken place in the house on a bed, with others present. Charge 10 libelled rape on various occasions between 18 July 1977 and 18 October 1977 or 18 February 1978 and 30 November 1979, but in its verdict, the jury amended the libel to restrict it to one occasion only. The complainer was aged in her mid-twenties at the time of the offence, and was a deaf mute with limited speech. Evidence was led that the appellant had climbed into her house through the bedroom window. Charge 15 libelled rape on one occasion between 19 February 1978 and 31 August 1978 on a complainer aged 16. Evidence was led that the rape had occurred when the complainer had met the appellant in company, and had been assaulted in a house with others present in a violent incident which lasted all night long, and that the complainer thought that she had been drugged. Conviction depended on application of the Moorov doctrine of mutual corroboration. The appellant was sentenced to 11 years imprisonment. He appealed against conviction and sentence.
The appellant argued (1) that the circumstances of the offences of which he had been convicted did not show the necessary unity of purpose for application of the Moorov doctrine, and that there were not sufficient similarities between charges one and two; (2) that the time lapses between certain of the offences were too long to have justified application of the doctrine, and that the jury could not apply the evidence of charges 1 or 2 to charges 10 or 15, nor of charge 1 to charge 2, due to the lapse of time; (3) that the judge's charge had not made it clear to the jury that certain charges could not corroborate others; (4) that the further back in time the dates libelled were, the more tightly the Moorov doctrine should be applied, and that the accused should be given the benefit of the maximum possible time between the charges; and that in a case such as this where the intervals of time between offences were substantial, the judge should have given a direction exhorting the jury to exercise great caution.
The Crown argued that there was no maximum period over whichMoorov corroboration could apply, and that time was just one of a number of factors in deciding whether there was a single course of conduct; that time might be less important where there were more than two charges, as it was easier in these circumstances to infer a course of criminal conduct systematically pursued; that as there had not been a submission of no case to answer, nor any submission for directions to the jury, it could be inferred that the appellant considered that the charges were capable of amounting to a course of criminal conduct to which the Moorov doctrine could apply; that the offences were similar in that they took place in the same area of Edinburgh within eight years, that the appellant had targeted vulnerable women, known to him, against whom he had employed force in sudden and unexpected attacks, and there were similarities in the extent of undressing in the course of the assaults; and that there was no need for further directions by the judge.
Held: (1) that the criticisms of the judge's charge were unfounded: there being no authority which suggests that, where a court is dealing with charges of antiquity and the application of theMoorov doctrine is in issue, a more rigorous approach should be taken than would have been appropriate where the charges were of more recent origin (p22F–23B); (2) it was not the case that in cases of antique origin where the Crown had taken a substantial latitude in time, the “benefit” of the maximum latitude should be accorded to the accused, and that directions to that effect would constitute an entirely unwarranted judicial interference with the fact-finding function of the jury (p23C–D); (3) that the judge could not be criticised for failing to give directions to the jury about the possible application of the Moorov doctrine to different combinations of charges in a case where the accused faced seven charges, as doing so could have resulted in a charge of such complexity as to risk confusing the jury (p11C–D, 23E–G); (4) that it was impossible for the court to lay down any maximum period of time in relation to the application of the Moorovdoctrine, and that whether any particular period of time was or was not too great for the application of the doctrine would depend on the circumstances of the case involved, and the more unusual and striking in similarity the circumstances between the offences, the greater the latitude in time allowed (p25D–E, 12G–H); (5) that considering the character and circumstances of the offences of which the appellant was convicted as revealed in the evidence and the lapses of time between them, the jury were not entitled to reach the decisions which they did in applying the MoorovENRENRENRENRENRENR doctrine for the following reasons: while the minimum gap in time between charges 1 and 2 was not very long, the offences were so dissimilar that no reasonable jury would be entitled to hold they were part of a systematic course of criminal conduct, in that 1 related to two rapes of a 14 year old girl by a 19 year old man on the ground in the open air, while 2 involved the rape of an older woman in a bed in her own house, the appellant having gained access to it on a pretext; equally charges 10 and 15 though close in time were markedly dissimilar in circumstances, in that 10 involved the appellant climbing from one second storey window to another, and the complainer was an older woman with children, while charge 15 was the repeated rape of a young girl on a bed-settee in a house following social activity and in the presence of numerous witnesses, and so the jury could not regard them as part of a systematic course of criminal conduct; with regard to charges 1 and 15, the actual circumstances of place and method of commission of the offences were dissimilar, and given that the minimum gap between them was seven years, the jury were not entitled to apply the doctrine between these charges; the underlying circumstances of charges 1 and 10 were dissimilar in character and circumstance, and they were separated by a substantial gap which at a minimum was just under seven years; while there were similarities between charges 2 and 10, in that they involved an older complainer attacked in her own bed, the minimum gap of time separating the two offences was substantial in that it exceeded four years, and a jury would not be entitled to discern the necessary relationship; charges 2 and 15 had no significant similarities, and were separated by a minimum gap of just under 5 years, and so the doctrine could not be applied (p25F–26I); and appeal allowed.
The appellant was indicted at the instance of the Right Honourable The Lord Hardie, Her Majesty's Advocate, with three co-accused on an indictment totalling sixteen charges. Of these, the appellant faced seven, each of rape of a separate complainer. He was tried at the High Court of Justiciary at Edinburgh before Lady Cosgrove and a jury between 24th August and 17th September 1999. The appellant was convicted by majority on charges 1,2,10 (on deletion of the words “various occasions” and the substitution of “one occasion”), and 15, while charges 4, 7 and 13 were found not proven, also by majority. Two of the co-accused were acquitted by the jury of the charges against them, the remaining co-accused having been discharged following a submission of no case to answer. The diet was adjourned for reports, and the appellant was sentenced to eleven years imprisonment on 10th January 2000. The appellant appealed to the High Court of Justiciary. At hearing on 13 February 2001, the case was adjourned for the appellant to lodge further grounds of appeal. The case called for procedural hearing on 27th July 2001, when a revised grounds of appeal were accepted and remitted to the trial judge to report further if so advised, and the case continued to a full hearing. On 2 May 2002, the appellant having indicated that fresh evidence issues might arise on which he wished to address the court at a later date, the case was adjourned to a later date for hearing.
Cases referred to:
Advocate (HM) v...
To continue reading
Request your trial
-
Notes Of Appeal Against Conviction And Sentence By William Hugh Lauchlan And Charles Bernard O'neill Against Her Majesty's Advocate
...(No 1) [2014] HCJAC 24; 2014 JC 220; 2014 SLT 688; 2014 SCCR 291; 2014 SCL 442 Danskin v HM Advocate 2002 SLT 889 Dodds v HM Advocate 2003 JC 8; 2002 SLT 1058; 2002 SCCR 838 Dudgeon v HM Advocate 1988 SLT 476; 1988 SCCR 147 Dumoulin v HM Advocate 1974 SLT (Notes) 42 Geerings v NetherlandsHR......
-
M.r. V. Her Majesty's Advocate
...2009 GWD 5-77 Carpenter v HamiltonUNK 1994 SCCR 108 Coffey v HoustonSCUNK 1992 JC 80; 1992 SLT 520; 1992 SCCR 265 Dodds v HM AdvocateSCUNK 2003 JC 8; 2002 SLT 1058; 2002 SCCR 838 Hughes v HM AdvocateSCUNK [2008] HCJAC 20; 2008 JC 338; 2008 SCCR 399; 2008 SCL 713; 2008 GWD 13-236 Hussain v H......
-
Frederick Marinello V. The City Of Edinburgh Council
...particular its decision that the legislation is to apply only where there is conduct on at least two occasions." [19] Dodds v HM Advocate 2003 JC 8 was a criminal appeal dealing with the application of the doctrine of mutual corroboration as set out in Moorov v HM Advocate 1930 JC 89, which......
-
Duthie v HM Advocate
...2018 SCCR 329; 2018 GWD 33-420 CW v HM Advocate [2016] HCJAC 44; 2016 JC 148; 2016 SLT 709; 2016 SCCR 285; 2016 SCL 535 Dodds v HM Advocate 2003 JC 8; 2002 SLT 1058; 2002 SCCR 838 Donegan v HM Advocate [2019] HCJAC 10; 2019 JC 81; 2019 SCCR 106; 2019 GWD 10-134 Du v HM Advocate 2009 SCCR 77......