David Hogan V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Philip,Lady Clark Of Calton |
| Judgment Date | 24 January 2012 |
| Neutral Citation | [2012] HCJAC 12 |
| Published date | 16 May 2012 |
| Docket Number | XC151/11 |
| Court | High Court of Justiciary |
| Date | 24 January 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lady Clark of Calton Lord Philip | [2012] HCJAC 12 XC151/11 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in Appeal against Conviction by DAVID HOGAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Alt: Prentice, Q.C., A.D.; Crown Agent
24 January 2012
Introduction
[1] On 26 January 2011 the appellant was convicted on indictment in the Sheriff Court at Alloa of three charges of lewd, indecent and libidinous practices and behaviour, and of three contraventions of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. These were charges (1), (2), (3), (4), (6) and (7) on the indictment. In relation to charge (5), the sheriff upheld a submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995.
[2] The surviving charges as amended were in the following terms:
"(1) between 21 January 1991 and 31 August 1992, both dates inclusive at ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards KR, born 21 January 1984, c/o Central Scotland Police and did tickle her leg, place your hand inside her pants and fondle her naked private parts and did attempt to insert your finger into her private parts;
(2) between 21 July 1993 and 21 July 1994 both dates inclusive at ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards KR, born 21 January 1984, c/o Central Scotland Police and did massage her back, fondle her naked breasts ...;
(3) on various occasions between 2 February 1998 and 7 February 1999, both dates inclusive at ... and at a secluded area ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards KR born 21 January 1984, a girl then of or over the age of 12 years and under the age of 16 years, and did repeatedly expose your erect naked private member to her; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6;
(4) on 21 February 2002 at ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards VW born 15 December 1986, a girl then of or over the age of 12 years and under the age of 16 years, and did fondle her breasts on top of her clothing; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6;
(6) on various occasions between 13 June 2001 and 12 June 2002 both dates inclusive at ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards LL, born 13 June 1991, c/o Central Scotland Police and did place your hand under the bedcovers and under her clothing, tickle her naked stomach, back and chest, touch her private parts, attempt to insert your fingers into her private parts, expose your naked private member to her and induce her to perform oral sex upon you;
(7) between 13 June 2004 and 12 June 2005, both dates inclusive at ... you DAVID HOGAN did use lewd, indecent and libidinous practices and behaviour towards LL born 13 June 1991, a girl then of or over the age of 12 years and under the age of 16 years, and did fondle her naked breasts; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6."
[3] On 22 February 2011, the appellant was sentenced to an extended sentence of six years' imprisonment with a custodial term of three years and an extension period of three years.
[4] The appellant appeals against conviction only. Leave to appeal was granted without restriction. The note of appeal dated 3 May 2011 addressed three main issues, namely the application of the Moorov doctrine, an alleged failure by the sheriff properly to respect the presumption of innocence and alleged lack of balance in the charge to the jury.
[5] Written submissions on behalf of the appellant dated 26 August 2011 were lodged. The written submissions set out in some detail the submissions in support of the grounds of appeal and the case law relied on.
The appeal hearing
[6] There was available an admirably comprehensive report by the sheriff in respect of the note of appeal and a transcript of the charge and verdict.
[7] In oral submissions Mr Scott solicitor advocate for the appellant, restricted the ambit of the appeal. He intimated that he did not intend to insist on the criticism of alleged lack of balance in the charge.
Moorov
[8] Mr Scott accepted that, looking at the charges as comprising a single course of conduct there was a sufficiency of evidence. However, the sheriff's directions based on Moorov in relation to mutual corroboration were inadequate. The sheriff had failed to give full, clear and accurate directions about mutual corroboration in a case where there was some complexity arising from the circumstances and the number of the charges. Some of his directions carried the implication that evidence from a witness on one charge could be corroborated by evidence from the same witness on another charge. The sheriff was also in error in suggesting that evidence on charge (6) might corroborate evidence on charge (1) - the time interval (some 9 or 10 years) was too long.
[9] Mr Scott was also critical of the sheriff's charge in that it envisaged the possible use of charge (4) for corroboration of charges (1) to (3). He pointed out that the evidence as regards charge (4) related to an isolated and relatively minor allegation involving a 15 year old child. The circumstances in charge (4) were markedly different from the circumstances spoken to by the other two complainers in relation to charges (1) to (3) and charges (6) to (7) respectively. He submitted that the sheriff had erred in advising the jury that charge (4) could provide corroboration for charges (1), (2) and (3).
[10] The Advocate depute explained that before the sheriff the Crown case had been presented on the basis that charges (1) to (7) should be regarded as a single ongoing course of conduct - a seamless course of conduct taking place with different complainers over the period in family circumstances. The case for the Crown had not been presented on the basis that, for example, charge (1) might corroborate charge (6) but rather that charges (1) to (3) taken together might corroborate charges (6) to (7) together.
Discussion on Moorov
[11] By the time this case went to the jury six charges were outstanding, involving three complainers who were all related in some way to the appellant: KR was his wife's sister, VW was his niece and LL was his (subsequent) partner's daughter. The alleged conduct as a whole extended over a substantial period and involved, depending on the age of the relative complainer at the time, alleged offences at common law and under statute: charge (1) was of a single incident in 1991 or 1992 when KR was 7 or 8 years old; charge (2) was again of a single incident in 1993 or 1994 when KR was 9 or 10 years old; charge (3) was of repeated behaviour when KR was between the ages of 14 and 15 years (though the evidence, according to the sheriff's report, apparently related to the period from when she was 12); charge (4) was of a single incident when VW was 15 years of age; charge (6) was of repeated behaviour when LL was 10 years of age; and charge (7) was of repeated behaviour when LL was 13 years of age. The conduct variously alleged had many common features. As the sheriff observes in his report these were the relationship of trust within the family between the appellant and the complainers, the [young] female character of the complainers, the location of the alleged acts within the privacy of their home (mainly in the bedroom when the complainers had been dressed for bed) the technique in relation to some of the allegations of introducing a degree of physical intimacy by tickling or rubbing, apparently innocuously, a part of the complainers' bodies and slowly moving the hand towards the private parts with attempts at insertion of a finger into the vagina, and open housecoat/dressing gown exposures. Although charge (4) involved a sole incident involving one complainer, the character of the conduct was not dissimilar to some of the conduct on other charges. We reject the suggestion that it was so different in kind as to be incapable of corroborating other charges or of being corroborated by them.
[12] In describing the rule of Moorov the sheriff gave to the jury the following directions. We set them out in full:
"The rule is this, if you are satisfied that the crimes charged are so closely linked by their character, the circumstances of their commission and the time, character, circumstances and time, as to bind them together as part of a single course of criminal conduct systematically pursued by the accused, then evidence of one witness about the commission of one crime is sufficiently corroborated by the evidence of one other different witness about the commission of each of the other crimes.
For example, suppose someone is charged with corruption in the form of trying to fix four football matches, four goalkeepers give evidence that within a reasonably short period of time the accused approached each of them when alone and said, 'I will give you £14,000 to lose the game.' If their evidence is believed then there's mutual corroboration for each (inaudible).
This same rule could apply in this case. For it to apply you have to believe the witnesses who speak to the individual charges, if you do not there can be no corroboration. So if you believe the complainer in any particular charge then you would have to find corroboration from a credible witness who speaks to any of the other charges. If you do believe that witness then you have to decide if, by reason of the character, circumstances and time of each charge, the crimes are so closely linked that you can infer that the accused was purchasing a single course of crime. It is not enough if all that is shown is that he had a general disposition to commit this kind of offence, you have...
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