Moorov v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 18 July 1930 |
| Date | 18 July 1930 |
| Docket Number | No. 11. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Justice-Clerk. Ld. Ormidale. Ld. Anderson. Lord Sands. Lord Blackburn. Lord Morison.
Evidence in Criminal Cases—Sufficiency—Corroboration—Panel charged with series of assaults upon various women—Direct evidence of one witness only for each assault—Whether evidence of one woman as to her experience sufficient corroboration of evidence of another—Interrelation of alleged criminal acts—Separation in time.
A panel was convicted, on indictment, of a series of assaults and indecent assaults alleged to have been committed in his business premises on various female employees. In the case of six of the charges on which the jury had found the panel guilty of assault, and in the case of seven others on which they had found him guilty of indecent assault, the only direct evidence of the panel's conduct in each case was that of the woman against whom the particular offence was alleged, to have been committed. One of the convictions of assault related to an act four years before the earliest of the acts to which the remaining convictions related. All the other convictions were in respect of acts which took place at short intervals within a period of three years. The panel having appealed,—
The Court dismissed the appeal so far as relating to the convictions of indecent assault; holding that in these cases there was sufficient interrelation in time, place, and circumstances between the assaults to allow the evidence of one woman with regard to her experience to corroborate the evidence of another with regard to hers; but (diss. the Lord Justice-Clerk and Lord Ormidale)sustained the appeal so far as relating to the convictions of assault; holding, per the Lord Justice-General, that, in these cases, there was not sufficient inter-relation between the assaults, and, per Lord Anderson, Lord Blackburn, and Lord Morison (Lord Sands doubting), that, as regarded the earliest charge, the evidence of the woman who spoke to it was not, looking to the lapse of time, competently corroborated by the evidence of other women as to similar acts four years later, and that, as regarded the remaining charges, the jury, in considering these charges, should not have been allowed to take into account the evidence relating to the earliest charge.
Authorities reviewed on the circumstances in which the evidence of single witnesses as to separate criminal acts may be used for mutual corroboration.
Samuel Moorov was charged at the instance of His Majesty's Advocate upon an indictment which set forth that, having formed a scheme for procuring women into his employment, and gaining a domination over there through his relationship with them as their employer for the purpose of compelling them to submit themselves to acts of sexual intercourse with him, and permitting him to commit acts of indecency towards them, he did, in furtherance of this scheme, on various dates between 1st August 1923 and 15th February 1930, insert, in certain Glasgow newspapers, advertisements for saleswomen and other female assistants in connexion with his drapery establishment at 186 Argyle Street, Glasgow, and engaged as assistants certain women, who called on him in answer to the said advertisements; and that he did, in the said premises, in furtherance of the said scheme, commit certain crimes of assault, indecent assault, and attempt to ravish against these women. The indictment then set forth twenty-one specific counts, viz.:—Seventeen charges of indecent assault (Nos. 1–8, 10–12, 14–18, and 21); two of assault (Nos. 9 and 13); one of attempt to ravish (No. 19); and one of indecent assault with attempt to ravish (No. 20). The charges related to acts all alleged to have taken place on occasions specified between the years 1923 and 1930 inclusive, and affected nineteen women, all of them for various periods employees of the panel.
The panel was tried before Lord Pitman and a jury in the High Court at Glasgow on 6th and 7th May 1930. At the trial the Crown withdrew four charges (Nos. 3, 4, 6, and 13), and the presiding judge directed the jury, with regard to those counts, to find the panel not guilty. On charge No. 11 the jury also found the panel not guilty. The presiding judge further directed the jury that the Crown had failed to prove the scheme prefaced to the specific counts of the indictment.
As regards the remaining counts of the indictment, the jury found the panel guilty of assault upon seven (Nos. 1, 2, 9, 10, 12, 15, and 17), and of indecent assault upon the remaining nine (Nos. 5, 7, 8, 14, 16, 18, 19, 20, and 21).
The panel was thereupon sentenced to four years' penal servitude.
The panel appealed to the High Court of Justiciary, under section 1 of the Criminal Appeal (Scotland) Act, 1926,1 on the grounds (1) that on none of the charges upon which he had been convicted was the evidence of the Crown corroborated as required by law; and (2) that the sentence was excessive.
The appellant did not ultimately dispute that, in the case of three charges (Nos. 8, 12, and 21), his conviction must stand. But it appeared that, in all the other charges upon which a conviction had been obtained, the only witness who had in each case spoken to the actual occurrences was the woman against whom the crime charged was alleged to have been committed. If further appeared that the first of such convictions, viz., one of assault upon charge No. 1, related to an act in 1923, four years before the earliest of the acts to which the remaining convictions related. All the latter convictions, whether of assault or of indecent assault, related to acts between 1927 and 1930 inclusive. In charging the jury, the presiding judge, in addition to giving the directions already referred to, directed that there were three general questions for the jury:—(1) Did the panel commit assault? (2) did he commit indecent assault? (3) did he attempt to ravish? He further directed the jury that, while, in considering charges of one class, they were not entitled to take into consideration evidence on charges of another class, they were entitled to take the evidence of a single witness to a charge of one class as relevant corroboration of the evidence of a single witness to another charge of the same class. He gave no separate direction as to the effect of the evidence with regard to later charges as corroboration of the evidence upon the charge relating to 1923.
The appeal was heard before a full bench of the High Court of Justiciary on 11th July 1930, when, His Majesty's Advocate not objecting, the following ground of appeal was also stated:—(3)
that the presiding judge misdirected the jury in law in direction them that a charge, spoken to by one witness only, was sufficiently corroborated by another charge, spoken to by one witness, of similar character.
At advising on 18th July 1930,—
LORD JUSTICE-GENERAL (Clyde).—The question in the present case belongs to the department of circumstantial evidence. This consideration is vital to the whole matter; and I do not think the real question in the case can be understood or appreciated otherwise. In a case of purely circumstantial evidence there may be no direct proof at all of the factum probandum; yet each circumstance is held to be sufficiently supported by the evidence of a single credible witness. The explanation is that "the aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponding to the same facts"—Hume on Crimes, vol. ii., p. 384. The factum probandum starts as a simple hypothesis; but it becomes afactum probatum as soon as it is seen to coincide with the conclusion to which the several Circumstances (when collated) necessarily Lead according to human knowledge and experience.
In the present case there is direct evidence in support of thefactum probandum as regards each charge which the jury found proved. But the evidence is that of a single credible witness only to each charge. Corroboration is sought from the circumstance that the charges thus supported are numerous and of the same kind, and the question is whether the case is one in which resort may legitimately be had to corroboration derived from this circumstance.
It is beyond doubt, in the law of Scotland, that corroboration may be found in this way, provided that the similar charges aresufficiently connected with, or related to, each other—Hume on Crimes, vol. ii., p. 384; Alison's Criminal Law, vol. ii., p. 552. But what is the test of sufficiency? The test I think is whether the evidence of the single witnesses as a whole—although each of them speaks to a different charge—leads by necessary inference to the establishment of some circumstances or state of fact underlying and connecting the several charges, which if it had been independently established, would have afforded corroboration of the evidence given by the single witnesses in support of the separate charges. If such a circumstances or state of fact was actually established by independent evidence, it would not occur to anyone to doubt that it might be properly used to corroborate the evidence of each single witness. The case is the same, when such a circumstance is established by an inference necessarily arising on the evidence of the single witnesses, as a whole. The only difference is that the drawing of such an inference is apt to be a much more difficult and delicate affair than the consideration of independent evidence. No merely superficial connexion in time, character, and circumstance between the repeated acts—important as these factors are—will satisfy the test I have endeavoured to formulate. Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character, or circumstance) must be such as to exhibit...
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