Appeal Against Conviction By Jl Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lady Clark Of Calton,Lord Bracadale |
| Neutral Citation | [2016] HCJAC 61 |
| Court | High Court of Justiciary |
| Published date | 15 July 2016 |
| Date | 15 July 2016 |
| Docket Number | HCA/2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 61
HCA/2015/3310/XC
Lord Justice Clerk
Lord Bracadale
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
JL
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: P Ferguson, QC; Faculty Services Ltd (for Thompson & Brown, Glasgow)
Respondent: I McSporran, Solicitor Advocate, AD; Crown Agent
15 July 2016
Introduction
[1] On 6 August 2015, at the High Court in Edinburgh, the appellant was convicted after trial of three charges involving the physical and sexual abuse of his daughter, younger cousin and step-daughter between October 2006 and April 2014. There were fourteen charges on the indictment: the charges of which the appellant was convicted were charges 3, 6 and 11; the remainder were withdrawn by the Crown during the course of the trial. On 24 September 2015, the appellant was sentenced to an extended sentence of fifteen years with a custodial term of twelve years. He appeals against his conviction.
Charges 3, 6 and 11
[2] Charge 11 was independently corroborated, but charges 3 and 6 depended upon the application of the Moorov doctrine for mutual corroboration. The terms of the libel were that:
“(003) on various occasions between 1 October 2006 and 31 December 2006, both dates inclusive, at [addresses] in Scotland you JL did use lewd, indecent and libidinous practices and behaviour towards EF, your daughter, born 3 March 1992, aged 14 years, a girl then of or over the age of 12 years and under the age of 16 years, c/o Police Service of Scotland, [address] and make indecent and inappropriate remarks to her, compel her to remove her lower clothing, lick and kiss her vagina, remove your lower clothing, expose your penis, penetrate her mouth with your penis and ejaculate in her mouth, enter the bathroom while she was having a bath and enter her bedroom, put your penis on her mouth and attempt to penetrate her mouth with your penis, compel her to shave her pubic hair, repeatedly ask her to perform oral sex on you, ask to see her legs and pretend to check her skin for a skin condition and induce her to expose her legs and touch her legs, remove all your clothing and expose your naked body in her presence, and offer her a mobile phone to perform sexual acts with you: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6;
…
(006) on various occasions between 1 July 2013 and 12 October 2013, both dates inclusive, at [addresses] in Scotland you JL did assault GH, your cousin, born 1 March 2000, aged 13 years, c/o Police Service of Scotland, [address] and while she was asleep, lie on the bed where she was, when she woke, rub and stroke her legs repeatedly, rub against her, turn her around, place your arms around her, press your body against her, kiss her, place your hand over her mouth, put your hands under her underwear, handle her vagina, penetrate her vagina with your fingers to her injury and touch and wrestle with her; provide her with money, purchase cigarettes for her and other gifts: CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009;
…
(011) on various occasions between 1 December 2013 and 9 April 2014, both dates inclusive, at [an address] you JL, a person who had attained the age of 16 years, did have unlawful sexual intercourse with EP, born 2 August 1999, aged 14 years, c/o Police Service of Scotland, [address], a child who had attained the age of 13 years but had not attained the age of 16 years and penetrate her mouth with your penis and penetrate her vagina with your penis, and ask her not to disclose what you did to her: CONTRARY to Section 28 of the Sexual Offences (Scotland) Act 2009…”.
The issues
[3] The appeal was directed against charge 3. The appellant contended that the Moorov doctrine was inapplicable to that charge given the lapse of time between charges 3 and 6 (6 years and 6 months) and charge 11 (6 years and 11 months). It was conceded that the Moorov doctrine could be applied as between charges 6 and 11. It was also contended that the trial judge had misdirected the jury in the application of the Moorov doctrine in the context of the lengthy lapses of time between the charges.
The evidence
Charge 3
[4] The complainer, (DOB 3 March 1992), was the appellant’s only daughter. At the material time, she lived with the appellant, her mother and her two younger brothers. She was off school recovering from viral meningitis. She had been prescribed bed rest and a sofa bed was made up for her in the living room of the family home.
[5] The complainer’s brothers were at school during the day and her mother worked as a school dinner lady. The appellant would return home at lunch time, ostensibly to look after the complainer.
[6] Her evidence was that during these lunchtime visits the appellant started speaking to her about sexual matters. The appellant then said he could show her what could happen in a relationship, how boys would touch her and what they would expect from her. While the complainer was on the sofa bed, the appellant removed his trousers and asked her to take off her pyjama bottoms. The appellant then lay on the bed with her and proceeded to lick and kiss her vagina for about ten minutes. The appellant then stopped what he was doing, got up and went to the bathroom, from where the complainer heard him vomiting.
[7] The next incident happened a few days later. The appellant had come home at lunch time. He again spoke to her about sexual matters and about what he said that men would expect her to do. He removed his trousers and underwear. His penis was erect. The appellant asked the complainer to come off the sofa and kneel down beside him. He said that he was going to move her head towards his penis and he got her to put his penis in her mouth. He instructed her to move her head backwards and forwards for five to ten minutes.
[8] The complainer described further incidents in which the appellant induced her to take his penis in her mouth. This happened about another ten times over the following fortnight. On the last occasion, the appellant ejaculated in the complainer’s mouth.
[9] About a week later, the complainer was in the bathroom of the family home having a bath. The appellant came in and locked the door. He removed his lower clothing and directed the complainer to take his penis in her mouth. She did so. She started to choke and feel sick. The appellant laughed, walked away and urinated in the toilet.
[10] On another occasion, the appellant came into the complainer’s bedroom at night whilst she was in bed. She pretended to be asleep. He touched his penis against her mouth and ran it along her lips. She turned over and the appellant went away.
[11] On a further occasion, the appellant came into the bathroom while the complainer was having a shower. He instructed her to shave off all her pubic hair. She was frightened and did what he asked.
[12] The complainer had eczema. The appellant would ask to look at her legs, ostensibly to check her skin. He would feel up and down her legs and would move her underwear so that he could see her vagina. This went on for a couple of years.
[13] Sometime later, the appellant told the complainer that he would give her a mobile phone. He added that she knew what she would have to do if she wanted to have the phone. The complainer told the appellant that she was not willing to continue doing sexual things to him. The appellant was angry, and he gave the new phone to his wife as a Christmas present instead.
Charge 6
[14] The complainer in charge 6 was the appellant’s younger cousin. Her date of birth was 1 March 2000. She first met the appellant at a family wedding when she was about 8 years old. The appellant lost touch with her family but then unexpectedly got back in touch when the complainer was about 13. In the summer of 2013, the appellant started to become a regular visitor to the complainer’s family home. She grew to trust him and communicated with him a lot on Facebook. After a few weeks, the appellant began to speak about sexual matters in Facebook messages. The complainer said that she treated this as a joke. When the appellant visited her house, he asked her about boys and whether she had a boyfriend. He would play fight with her. On one occasion, he pinned her down in the kitchen and started to touch her on her breasts and her private parts.
[15] Lengthy Facebook exchanges, showing the development of an inappropriately close and intimate relationship between the complainer and the appellant, were produced. The complainer said that the appellant promised to give her his horse. He started to collect the complainer from school and other places. He gave her money, alcohol and cigarettes. He invited her to stay at his house.
[16] There came a time when the appellant broke up with his girlfriend. He left his house and needed somewhere to stay. The complainer’s family agreed that he could sleep in her bedroom, on the understanding that he would sleep at the bottom of her bed on top of the covers. The complainer’s evidence was that he cuddled into her when she was in bed. He came under the covers and lay beside her. He removed his trousers and touched her on her arms, sides and hips. This happened on a number of occasions.
[17] The complainer described an occasion when she had been drinking alcohol and smoking cannabis. She came home and went to bed. She woke up to find the appellant in bed beside her. He put his hand over her mouth and inserted his fingers into her vagina. This went on for about ten to fifteen minutes. The next morning the complainer was bleeding from her vagina.
Charge 11
[18] The complainer in charge 11 was born on 2 August 1999. She lived with her mother and her brother. In 2013, the appellant started a relationship with the complainer’s mother and moved into their house. She saw the appellant as a father...
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