Appeal Against Conviction By Rf Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lady Dorrian,Lord Bracadale |
| Judgment Date | 06 May 2016 |
| Neutral Citation | [2016] HCJAC 52 |
| Court | High Court of Justiciary |
| Date | 06 May 2016 |
| Published date | 21 June 2016 |
| Docket Number | HCA/2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 52
HCA/2015/001736/XC
Lady Smith
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LADY SMITH
in
APPEAL AGAINST CONVICTION
by
RF
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: McConnachie, QC; Gilfedder McInnes, Edinburgh
Respondent: Di Rollo, AD; Crown Agent
6 May 2016
Introduction
[1] On 15 April 2015, at the High Court in Glasgow, the appellant was convicted after trial of eleven charges involving the physical and sexual abuse of family members between 1976 and 2004. There were thirteen charges on the indictment; the appellant was found not guilty in relation to charge 5 and charge 10 was found to have been not proven.
The appellant was sentenced in cumulo to 12 years imprisonment.
Charges 7, 8, 9 and 10
[2] This appeal relates only to charges 7, 8, 9 and 10. They were in the following terms:
“ (007) on an occasion between 27 February 1991 and 6 March 1991, both dates inclusive, at (a residential address) you …did assault J B …and whilst she was asleep and incapable of giving or withholding her consent, penetrate her vagina with your penis, and after she had awakened continue to penetrate her vagina with your penis and you did rape her;
(008) on an occasion between 7 May 2001 and 6 May 2003, both dates inclusive, at (a residential address) you….did use lewd, indecent and libidinous practices and behaviour towards NP, your daughter, born 7 May 1998..remove her clothing, lie on top of her and expose your penis and simulate sexual intercourse ;
(009) on an occasion between 7 May 2002 and 6 May 2004, both dates inclusive, at ( a residential address) you… did use lewd, indecent and libidinous practices and behaviour towards NP ….your daughter, born 7 May 1998,…and rub her naked breasts;
(010) on an occasion between 19 July 2000 and 13 July 2001, both dates inclusive , at (a residential address) you….did use lewd, indecent and libidinous practices and behaviour towards RPF, your son born 14 July 1989…and did penetrate his mouth with your penis and ejaculate in his mouth.”
Accordingly, on these allegations, the lapse in time between charges 7 and 8 was about 10 years, the lapse in time between charge 7 and 10 was between 9 and 10 years and the lapse in time between charges 7 and 9 was about 11 years.
[3] The Crown approached the case on the basis that it was necessary to find corroboration for charge 7 in charges 8, 9 and/or 10. Given the whole terms of the indictment, other approaches might have been adopted by the Crown but, as is clear from the trial judge’s report and the advocate depute’s submissions, that did not happen.
The Evidence
[4] The complainer JB gave evidence in support of charge 7. She was the 17 year old sister of the appellant’s partner and was staying with them at their home. One night, when there was a party at the house, she went to sleep on a makeshift bed in a room where the children were sleeping. She said that the next thing she remembered was waking up to find that the appellant was on top of her, having sexual intercourse with her, with his penis inside her vagina. She told him to stop.
[5] The appellant’s daughter NP gave evidence in support of charge 8. She said that, when she was 4 or 5 years old, she was in her bed, talking to the appellant about going to watch “CBeebies”. The appellant was also in the bed. He pulled down her pyjama trousers and pants, and his trousers, removed her clothing, lay on top of her, exposed his penis and simulated sexual intercourse. She described lying on her back with her legs apart “like an angel”, the appellant’s hands being on her head, him feeling heavy, him making a movement “up and down like the way a caterpillar moves, kind of”, him battering her head off the headboard, and his “private” looking like a big sausage and getting thinner.
[6] NP also gave evidence in support of charge 9; she said that the appellant rubbed her naked chest on one occasion.
[7] The appellant’s son RPF gave evidence in support of charge 10. He said that the appellant made him perform oral sex on him, in the appellant’s bedroom on the appellant’s bed. He said that the appellant shouted to him to come into his bedroom, that the appellant pulled down his trousers and boxer shorts, that the appellant’s penis was erect, that the appellant ejaculated into his mouth, that he, RPF then spat it out and the appellant told him to “fuck off”.
[8] On the evidence, the lapse in time between charges 7 and 8 was about 11 years, the lapse in time between charges 7 and 10 was between 9 and 10 years, and the lapse in time between charges 7 and 9 was about 11 years.
No Case to Answer Submission
[9] At trial, senior counsel for the appellant made a submission of no case to answer. He said that the Moorov principle could not apply as between charge 7 and charges 8, 9 or 10, relying particularly on the length of time that had elapsed between the events alleged. The trial judge repelled the submission, accepting the Crown submission which was to the effect that there was great coincidence in the conduct alleged and notwithstanding the time gap, Moorov could apply. He said:
“ I required to take the evidence at its highest for the Crown. Having heard both parties, I was not satisfied that the evidence led by the prosecution was insufficient in law to justify the accused being convicted of the offence…contained in …charge (7) on the indictment. Accordingly in terms of section 97(3) of the 1995 Act I rejected the submission.”
[10] Although he notes, in his report, that he was addressed by senior counsel for the appellant on the significance of the lapse of time between the charges and the lack of connection between them, he does not explain why he rejected that submission.
The Appeal
[11] The appellant appeals his conviction in relation to charges 7, 8 and 9. There are two grounds of appeal.
[12] The first ground of appeal is that the trial judge erred in rejecting a submission of no case to answer in relation to charge 7; charges 8, 9 and 10 could not afford evidence of a course of conduct systematically pursued and so the doctrine of mutual corroboration (see: Moorov v HMA 1930 JC 68) did not apply.
[13] In support of this ground of appeal, senior counsel referred to Moorov v HMA, AK v HMA 2012 JC 74, MR v HMA 2013 SCCR 190, AS v HMA 2015 SCCR 62, and KH v HMA 2015 SCCR 242 for his two central propositions. They were, first, that it was fundamental to the application of Moorov that the evidence be capable of showing such similarities in time, place and circumstances in the behaviour in the libel as to demonstrate that the individual instances are not isolated but are parts of one course of conduct systematically pursued by the accused and, secondly, that in this case, the gaps in time between the charges were of such length as required there to be some compelling or extraordinary feature linking the charges before it could possibly be concluded that they were a single course of conduct. In this case, neither of those requirements could be met. The gaps in time were unexplained.
[14] The second ground of appeal is that esto the trial judge was correct to reject the submission of no case to answer, the jury were not entitled to find corroboration in the circumstances of charge 8 alone, the jury having acquitted the appellant of charge 10. The lapse of time between charges 7 and 8 was even greater than that between 7 and 10 and, again, there were no compelling or extraordinary features nor was there an explanation for the gap in time.
[15] In relation to both grounds of appeal, senior counsel submitted that although there were points of similarity (family connections, home circumstances, two female complainers), there were also significant dissimilarities (JB was over the age of consent, NP was a very young child, the conduct alleged in the other charges was very different from that in charge 7); there was nothing in the circumstances of the offences themselves which was compelling or extraordinary. He also relied on the fact that within the time lapses between the charges there were also available, within the family setting, two young children – a sister born in 1995 and a brother born in 1993/4 – but there were no allegations that either of them had ever been sexually abused by the appellant. The time gap could not, accordingly, be explained by intervening lack of opportunity: cf AK v HMA at para 11; Pringle v Service 2011 JC 190 at para 20.
[16] For the Crown, the advocate depute submitted that only in extreme cases should the matter not be left to the jury and this was not such a case. She submitted that, although she could not point to any features which were extraordinary in the AK sense, the similarities in the conduct alleged in charges 7 and 8...
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