RBA v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Malcolm,Lord Glennie |
| Judgment Date | 27 August 2019 |
| Neutral Citation | [2019] HCJAC 56 |
| Date | 27 August 2019 |
| Court | High Court of Justiciary |
| Docket Number | No 2 |
[2019] HCJAC 56
Lord Brodie, Lord Malcolm and Lord Glennie
AK v HM Advocate [2011] HCJAC 52; 2012 JC 74; 2011 SLT 915; 2011 SCCR 495; 2011 SCL 744
AL v HM Advocate [2016] HCJAC 120; 2017 SCL 166; 2016 GWD 38–676
AS v HM Advocate [2014] HCJAC 135; 2015 SCCR 62; 2015 SCL 245; 2015 GWD 1–9
Advocate (HM) v ER [2016] HCJ 98; 2016 SLT 1267; 2016 SCCR 490; 2017 SCL 46
Advocate (HM) v SM (No 2) [2019] HCJAC 40; 2019 JC 183; 2019 SCCR 262; 2019 GWD 21–322
B v HM Advocate [2008] HCJAC 73; 2009 JC 88; 2009 SLT 151; 2009 SCCR 106; 2009 SCL 266
BM v HM Advocate [2017] HCJAC 55; 2017 SCL 882; 2017 GWD 23–388
CW v HM Advocate [2016] HCJAC 44; 2016 JC 148; 2016 SLT 709; 2016 SCCR 285; 2016 SCL 535
Donegan v HM Advocate [2019] HCJAC 10; 2019 JC 81; 2019 SCCR 106; 2019 GWD 10–134
Du v HM Advocate 2009 SCCR 779
HMcA v HM Advocate [2014] HCJAC 41; 2015 JC 27; 2014 SCCR 441; 2014 GWD 16–291
JGC v HM Advocate [2017] HCJAC 83; 2017 SCCR 605; 2017 SCL 1042; 2017 GWD 37–567
JL v HM Advocate [2016] HCJAC 61; 2016 SCCR 365; 2016 SCL 715; 2016 GWD 22–393
Livingstone v HM Advocate [2014] HCJAC 102; 2014 SCCR 675; 2014 SCL 868; 2014 GWD 32–625
MR v HM Advocate [2013] HCJAC 8; 2013 JC 212; 2013 SCCR 190; 2013 SCL 338; 2013 GWD 4–115
McAskill v HM Advocate [2016] HCJAC 64; 2016 SCCR 402; 2016 SCL 748; 2016 GWD 26–479
McMahon v HM Advocate 1996 SLT 1139
Moorov v HM Advocate 1930 JC 68; 1930 SLT 596
Ogg v HM Advocate 1938 JC 152; 1938 SLT 513
Pringle v Service [2010] HCJAC 127; 2011 JC 190; 2011 SCCR 97; 2011 SCL 233; 2011 GWD 2–88
RB v HM Advocate [2017] HCJAC 24; 2017 JC 278; 2017 SLT 714; 2017 SCCR 278; 2017 SCL 545
RF v HM Advocate [2016] HCJAC 52; 2016 JC 189; 2016 SLT 746; 2016 SCCR 319; 2016 SCL 585
RMY v HM Advocate [2018] HCJAC 41; 2018 SCCR 253; 2018 GWD 23–284
Reilly v HM Advocate [2017] HCJAC 5; 2017 SCCR 142; 2017 SCL 347; 2017 GWD 6–84
Reynolds v HM Advocate 1995 JC 142; 1996 SLT 49; 1995 SCCR 504
TN v HM Advocate [2018] HCJAC 20; 2018 SCCR 109; 2018 GWD 8–99
Wang v HM Advocate [2011] HCJAC 114
Williamson v Wither 1981 SCCR 214
Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd Grierson ed, T & T Clark, Edinburgh, 1887), vol II, para 1810
Duff, P, ‘Towards a Unified Theory of “Similar Facts” Evidence in Scots Law’ 2002 (4) Jur Rev 143
Scottish Law Commission, Report on Similar Fact Evidence and the Moorov Doctrine (Scot Law Com no 229, May 2012), para 6.14 (Online: www.scotlawcom.gov.uk/files/5813/3767/3532/rep229.pdf (19 October 2019))
Justiciary — Evidence — Sufficiency — Corroboration — Mutual corroboration — Sexual offences against two female complainers separated by gap of 13 years — Complainers part of same extended family — Whether sufficient
RBA was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, the libel of which set forth five charges of indecent assault of MR, contravention of sec 5 of the Sexual Offences (Scotland) Act 1976 (cap 67) in respect of MR, lewd, indecent, and libidinous practices and behaviour towards LW, contravention of sec 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 (cap 39) in respect of LW, and rape and indecent assault of LW. The appellant pled not guilty and the cause came to trial at the High Court of Justiciary in Glasgow. On 29 August 2018, the appellant was convicted of all charges. On 10 October 2018, he was sentenced to a total of eight years' imprisonment. The appellant appealed against conviction to their Lordships in the High Court of Justiciary.
The appellant was indicted with five charges of sexual offences in respect of two female complainers. The appellant had been in a position of trust to both complainers, who were part of the same extended family. The Crown relied upon mutual corroboration. Following closure of the Crown case, the appellant made a submission of no case to answer and argued that the period of some 13 years between the end of the conduct in respect of the first complainer and the commencement of the conduct in respect of the second complainer was too lengthy to permit mutual corroboration. The trial judge repelled the submission and the appellant was subsequently convicted of all charges by the jury.
The appellant appealed against his conviction and argued that the trial judge had erred in repelling the submission in that, while there was no maximum interval of time beyond which mutual corroboration could not apply, some reason or extraordinary feature was required to explain the lack of persistence during the 13-year period, such as could allow the jury to conclude that the offending formed part of a single course of conduct which had been systematically pursued.
The Crown submitted that while it was appropriate to focus on the substantial time-gap between the end of the conduct alleged by the first complainer and the beginning of what was alleged by the second, what mattered for the operation of mutual corroboration was the underlying similarity of the alleged conduct. It had endured over a period of time. Similarities between the offences included threats made to the complainers, their age, the repeated nature of the acts, the location of the acts in family homes, and the sudden and serious nature of the conduct.
Held that: (1) there was no maximum interval of time beyond which mutual corroboration could not apply, but the onus was on the Crown to establish that individual incidents were component parts of one course of conduct notwithstanding the interval, and the longer the interval the more difficult it would be to discharge that onus (para 35); (2) in the present case there were no circumstances explaining the interval, and there had been evidence of a continued flow of children in and out of the appellant's home in the period covered by the indictment (paras 36–38); (3) the similarities between the offences in this case were not sufficiently special or extraordinary to impose on events so disparate in point of time the quality of a single course of conduct (para 39); and appeal allowed.
Observed (per Lord Glennie) that the principle of mutual corroboration could work just as well without being tied to the requirement that the several incidents be part of a single course of conduct; it ought to be sufficient that the conduct spoken to in relation to each incident could reasonably be regarded as supporting the evidence of other witnesses of a similar kind (paras 46–48).
Moorov v HM Advocate 1930 JC 68 and Reilly v HM Advocate2017 SCCR 142commented upon, AK v HM Advocate2012 JC 74 and AS v HM Advocate2015 SCCR 62distinguished and HM Advocate v SM (No 2)2019 JC 183applied.
The appeal was heard before the High Court of Justiciary, comprising Lord Brodie, Lord Malcolm and Lord Glennie, for a hearing, on 4 July 2019.
At advising, on 27 August 2019—
[1] Lord Brodie— On 29 August 2018 at Glasgow High Court, the appellant was convicted after trial on indictment of five charges of sexual offences committed against two complainers. On 10 October 2018 he was sentenced to a total of eight years' imprisonment.
[2] In seeking a conviction, the Crown relied on the principle of mutual corroboration associated with the decision in Moorov v HM Advocate. Following the closing of the Crown case at trial, defence counsel advanced a submission of no case to answer in terms of sec 97 of the Criminal Procedure (Scotland) Act 1995 (cap 46) in relation to the five charges. It was argued for the appellant that the interval between the conduct giving rise to the charges relating to the first complainer and the conduct giving rise to the charges relating to the second complainer was such that the evidence could not justify the application of the Moorov principle.
[3] The trial judge repelled the submission, and the case went to the jury. The appellant now seeks to appeal against his conviction in respect of all five charges on the basis that the trial judge ought to have upheld the no case to answer submission. That is the sole focus of this appeal, with no issue taken by the appellant in relation to the trial judge's subsequent charge to the jury on the application of Moorov.
[4] The charges of which the appellant was convicted may be stated as follows:
‘(001) on an occasion between [a date in July 1978 and a date in July 1980], both dates inclusive, at [an address in Bargeddie], you RBA did indecently assault [MR born in July 1966] … and did seize hold of her and penetrate her anus with your penis to her injury;
(002) on various occasions between [a date in July 1978 and a date in July 1980], both dates inclusive, at [addresses in Bargeddie] you RBA did use lewd, indecent and libidinous practices and behaviour towards [MR born in July 1966], a girl then above the age of 12 years and under the age of 16 years, place your hands inside her underwear and touch and penetrate her vagina with your finger: CONTRARY to the Sexual Offences (Scotland) Act 1976 [(cap 67)], Section 5;
(003) on various occasions between [a date in May 1993 and a date in May 1996], both dates inclusive, at the rear of a health centre, Easterhouse, and at addresses on Westerhouse Road, Glasgow, the exact locations which are meantime to the Prosecutor unknown, you RBA did use lewd, indecent and libidinous practices and behaviour towards [LW born in May 1984] … and did make lewd comments to her, touch her on the bottom, induce her to masturbate you, masturbate in her presence and touch her vagina;
(004) on various occasions between [a date in May 1996 and a date in May 1997], both dates inclusive, at the rear of a health centre, Easterhouse, and at addresses on Westerhouse Road, Glasgow, the exact locations which are meantime to the Prosecutor unknown, you RBA did use lewd, indecent and libidinous practices and behaviour towards [LW born in May 1984] a girl then of or over the age of 12 years and...
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