Appeal Against Conviction And Sentence By Rb Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Malcolm,Lord Justice Clerk |
| Judgment Date | 28 April 2017 |
| Neutral Citation | [2017] HCJAC 24 |
| Court | High Court of Justiciary |
| Date | 28 April 2017 |
| Docket Number | HCA/2016 |
| Published date | 28 April 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 24
HCA/2016/000505/XC
Lord Justice Clerk
Lord Brodie
Lord Malcolm
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
RB
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Dean of Faculty; Cheyne; John Pryde & Co
Respondent: Taylor, Sol Adv, AD; Crown Agent
28 April 2017
[1] The appellant, a maths teacher, was convicted after trial of sexual offences committed against two school pupils. The second complainer was the nephew of the first complainer. The Crown relied on the operation of the Moorov doctrine for conviction. The temporal gap between the offences, at its shortest, was just under 17 years. The grounds of appeal presented are first, that the trial judge erred in repelling a no case to answer submission, there being insufficient evidence to indicate that the incidents both formed part of a course of conduct on the part of the appellant. Second, (a) that the judge’s charge was inadequate, in that it failed sufficiently to emphasise the need for strikingly compelling similarities to exist before the Moorov doctrine could be applied to incidents separated by such a gap in time, satisfying the need to prove a course of conduct; and (b) that there being no evidence of compelling features consistent with such a course of conduct, no reasonable jury could have concluded otherwise and have convicted. The appeal is also against the sentence of 6 years’ imprisonment.
[2] It is quite clear from an examination of the judge’s charge as a whole that there is no merit in ground 2(a). The trial judge directed the jury for the need for striking similarities to show that one course of conduct was being pursued, that the time gap was relevant, and that they required to consider whether the gap was explained, in such a way that they could conclude that there had been a course of conduct. Her directions were entirely sufficient.
[3] The remaining grounds of appeal against conviction stand or fall together on the issue of whether the circumstances were such as would admit of a conclusion that there had been one course of conduct systematically pursued by the appellant.
Evidence at trial
[4] The complainer in charge 1, GM, met the appellant when he started secondary school in 1994. The appellant was his maths teacher in his first year. GM did not do well in his first few weeks and the appellant gave him extra tutoring at lunchtime, later extended to after school. The appellant turned conversation to uncomfortable subjects: masturbation; whether GM had a girlfriend; and penis size. On one occasion at the appellant’s instigation, GM measured the sized of his penis, which was then compared with that of the appellant. Thereafter the appellant drove GM to a secluded layby and asked him why he felt uncomfortable about the behaviour. When GM said that such behaviour was for adults, the appellant put his head in his hands, saying that his own mother said he was a pervert and that others thought so too. GM felt compelled to comfort the appellant, and felt sorry for him. The appellant then encouraged GM to drop his trousers and to masturbate.
[5] The appellant arranged for GM to join the local gym and went with him there. On being challenged by GM for staring, the appellant reassured him that everyone had the same body parts and that, in any case, he could not see without his glasses.
[6] The appellant later started to give GM massages, originally on his shoulders, neck and back. On two occasions during massages the appellant placed his hand on GM’s groin area under his shorts.
[7] The appellant took GM on various outings and to restaurants and would afterwards drive him along back roads, where he would stop in a layby and suggest dares for which GM would be awarded “prizes”. These included daring him to take his clothes off and run naked round the car, and to touch the appellant’s penis. The appellant let him drive the car when he was naked. The “prizes” included expensive designer shirts and underwear, and bottles of Buckfast wine or vodka. The appellant asked to masturbate in front of GM, to ejaculation. The appellant provided condoms and each of them ejaculated onto a condom.
[8] GM explained that he did these things because he wanted to keep the relationship he had with the appellant and because he appreciated the “prizes” and presents which his mother could not afford.
[9] The complainer in charge 2, AW, is the nephew of GM. He started at the appellant’s school when he was 12. He had known the appellant all his life as a friend of the family who used to visit the family home. The appellant was not AW’s teacher, but offered to help with his school work by tutoring him at lunchtime and then also after school at the house of AW’s great grandmother, with whom the appellant was friendly. The appellant would drive them home via restaurants or cafes then by back roads where he would stop the car and talk. At first the talk was about schoolwork and rugby, but it turned to sexual matters. The appellant asked AW about masturbation and about what he had done with any girls that he knew. The appellant bought a gym membership for him and, since AW was not old enough to join, supplied a false date of birth. The appellant took him to the gym where they had showers along with other people.
[10] About six months after AW started at the school, the appellant began to give him massages. Thereafter the appellant would tell AW to take his boxer shorts off and let the appellant masturbate him. When AW told the appellant that he did not want this to happen, the appellant said AW must think he was a weirdo, and became upset. That made AW feel bad and guilty, so he let the appellant proceed. The appellant asked AW to masturbate him, but he never did it. The appellant drove him to an isolated car park and asked him to masturbate. The appellant took him on outings to places of interest such as Edinburgh.
[11] The appellant sometimes played relaxation CDs, and shaved AW’s pubic area. AW felt confused. The appellant gave him money, designer shirts and underwear, Buckfast wine and the drink “Mad Dog”.
[12] The trial judge repelled a submission of no case to answer, concluding that the acts in question were strikingly similar, such that the Moorov doctrine could be applied.
Submissions for the appellant
[13] It was accepted that there was no upper limit of time beyond which the Moorov doctrine could not be applied (Dodds v HM Advocate 2003 JC 8), the matter being one dependent on the circumstances of each case. However, the gap in time of 17 years was such that it was necessary to identify an extraordinary feature or striking similarity between the character and circumstances of the respective charges before the doctrine of mutual corroboration could apply (KH v HM Advocate, 2015 SCCR 242; RF v HM Advocate, 2016 SCCR 319). Such features must demonstrate an underlying unity of intent on the part of the appellant, to enable the jury to conclude that, notwithstanding the gap in time, they were component parts of a course of conduct persistently pursued by the appellant. (MR v HM Advocate 2013 JC 212; CW v HM Advocate 2016 SCCR 285; JL v HM Advocate [2016] HCJAC 61; AK v HM Advocate 2012 JC 74; AS v HM Advocate 2015 SCCR 62). Here, the similarities were not extraordinary, and there were significant differences between the two charges. There was no evidence to suggest that the appellant had no opportunity to commit other similar offences in the intervening period. The “generational” explanation for the gap (AS) did not apply. There was no evidence to suggest that the appellant’s relationship with the family of the complainers had been with a view to initiate a process of grooming. The similarities relied on in the present case are no more than the conventional similarities which might be looked for in cases such as these.
Submissions for the Crown
[14] The family relationship was important in the case. It was not a factor in the abuse of the first complainer, as there was no suggestion that there was a family connection with GM at the time when the conduct towards him began. It was as a result of tutoring that the family friendship developed, so that the second complainer knew the appellant all of his life. The family friendship was thus a factor regarding the second complainer.
[15] Looking at it as a campaign, the evidence showed that the appellant remained friendly with the first complainer, got himself into a position where he had successfully carried out abuse of the first complainer without alienating him or having the abuse reported. In that context the second complainer would be an attractive prospect as a target for abuse. Having successfully abused the first complainer other family members became a focus of interest for further abuse.
[16] The second complainer already had a relationship with the appellant, enabling him to spend more time with the child, all facilitated by the family friendship. The appellant appears to have an attraction to adolescent boys, both complainers being at that age when the incidents occurred. The appellant’s specialisation mathematics, is a subject which pupils commence at secondary school, which is relevant to the question of opportunity.
Decision
[17] The basic principles which apply in cases such as the present are conveniently summarised in para 30 of JL v HM Advocate in the opinion of the court given by the Lord Justice Clerk (Dorrian):
“There is no maximum interval of time fixed by law beyond which the Moorov principle cannot apply (K v HM Advocate, Lord Justice Clerk (Gill) at para.14). The probative effect of a significant time gap can only be determined in light of all the circumstances of the case (S v HM Advocate, Lord Justice Clerk (Carloway) at para.10). The search is always for an underlying unity of intent such as to indicate a course of conduct...
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