Russell v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 07 June 1991 |
| Docket Number | No. 28.,No. 33. |
| Date | 07 June 1991 |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Wylie, Grieve.
Evidence—Sufficiency—Corroboration—Moorov doctrine—Mutual corroboration—Lewd, indecent and libidinous practices—Separate incidents at least three years and six months apart—Whether Moorov doctrine applicable so as to afford mutual corroboration of separate complainer's account of events.
An accused person appeared on an indictment libelling, inter alia, two charges of using lewd, indecent and libidinous practices against two girls. At the trial the sheriff (Gordon, Q.C.) directed the jury that, as the only witness in each case was the complainer herself, the Crown had to rely for corroboration on the Moorovdoctrine. The sheriff further directed the jury that, for that doctrine to apply, the offences required to be similar in kind and circumstances and sufficiently closely connected in time with some underlying unity which made what happened part of one course of conduct and not a series of separate incidents. The evidence shewed that, although there were differences in the alleged conduct in relation to the two complainers, the conduct was alleged to have taken place in his own house and in both instances he had been a neighbour of the family to which the complainers belonged. From the last date libelled in respect of the first complainer to the first date libelled in respect of the second complainer, there was an interval of at least three and a half years. The accused was convicted and appealed by way of note of appeal to the High Court of Justiciary on the ground that the interval of time between the charges libelled in respect of the two complainers was too long to enable theMoorov doctrine to apply.
Held (1) that, there were material differences insofar as the alleged offences were concerned: the alleged behaviour was not the same in each charge; and they took place at different times; (2) that, as the appellant had ceased to be a neighbour of the complainers' family for over two years intervening between the last date specified in the first charge and first date in the second, this appeared to support the view that, if the behaviour did take place, there was not a single course of conduct but rather two separate courses of conduct; (3) (approvingOgg v. H.M. AdvocateSC1938 J.C. 152, per Lord Justice-Clerk Aitchison at p. 158) that, although the interval of time between similar offences was not in all cases critical, it was a most material consideration; and (4) that, although no hard and fast rule could be laid down so far as time was concerned, in the circumstances of this case the time between the charges was too great and was, accordingly, fatal to the application of theMoorov doctrine; and appeal allowed and convictions quashed.
James Russell was charged on an indictment at the instance of the Rt. Hon. the Lord Fraser of Carmyllie, Q.C., Her Majesty's Advocate, the libel of which set forth that:—"(1) [O]n a number of occasions between 14th January 1978 and 31st May 1981, the exact dates being to the prosecutor unknown, in the house then occupied by you at [an address “A” in Glasgow], you did use lewd, indecent and libidinous practices and behaviour towards A.B., born 14th January 1972, c/o Craigie St. Police Office, Glasgow, and did handle her naked private parts, lick her private parts, cause her to handle your naked private member, cause her to take your private member into her mouth, lie on top of her and kiss her, and cause her to view pornographic literature; (2) between 14th January 1985 and 17th May 1985, the exact date being to the prosecutor unknown, in the house then occupied by you at [an address “B” in Glasgow], you did attempt to have unlawful sexual intercourse with said A.B., a girl of or above the age of 13 years and under the age of 16 years; contrary to the Sexual Offences (Scotland) Act 1976, sec. 4 (1); and (3) on a number of occasions between 1st January 1984 and 30th June 1987, the exact dates being to the prosecutor unknown, in the house then occupied by you at [said address “B”], and [at an address “C” in Stray, by Beauly], you did use lewd, indecent and libidinous practices and behaviour towards L.B., aged 12 years, c/o Craigie St. Police Office, Glasgow, and did remove her pants, place your hand on her private parts, insert your fingers into her vagina, pull her on top of you, place your penis against her body, and attempt to induce her to touch your penis."
The cause came to trial before the sheriff (G. H. Gordon, Q.C.) and a jury in the sheriffdom of Glasgow and Strathkelvin at Glasgow on 15th and 16th May 1989. At the conclusion of the Crown case the defence moved that there was no case to answer in respect of charge (2) in terms of sec. 345A of the Criminal Procedure (Scotland) Act 1975. The sheriff sustained that motion and formally acquitted the pannel in respect thereof. On 16th May 1989 the jury unanimously found the pannel guilty of charges (1) and (3) under the deletions italicised supra.After obtaining a relevant social enquiry report, the sheriff sentenced the pannel in cumulo to a term of imprisonment of 12 months. The appellant thereafter appealed to the High Court of Justiciary by way of note of appeal against the convictions.
In his charge to the jury the learned sheriff stated, inter alia:—"There are now before you two charges on this indictment which are described as charges of using lewd, indecent and libidinous practices and behaviour. That is rather a mouthful and it is rather an old-fashioned mouthful but it simply means behaving in a sexually indecent way. Clearly it is an offence to behave in such a way towards young girls and clearly if the matters, to which the girls have spoken, happened then they did constitute lewd and libidinous practices. That is not, as I understand it, in dispute in this case. There are two separate charges and two separate girls. You have to consider each one separately and decide separately, before you go any further, whether or not you believe each girl. That is a matter entirely for you. The first charge, as the procurator-fiscal has already indicated, the girl [A.B.], didn't tell us all the things that are in that charge and therefore if you were to convict as far as that charge is concerned you would have to delete the words, “lick her private parts”, and you would have to delete the words, “and did cause her to take your private member into her mouth". It is open to you to delete any other part of that charge if you are not satisfied about them but as to the rest of that charge I leave the details to you. The question on that charge is, do you believe [A.B.], do you believe the accused or are you in reasonable doubt as to the matter? Unless you believe [A.B.] you go no further with that charge. It is for you to determine, having seen the witness, whether you believe her and taking such account, as you think is appropriate, of the various pieces of evidence you have heard as far as you accept them about [A.B.], about the sort of girl she is and about the incidents which they have spoken about relating to this earlier court case and relating to the accused's account of her attempting to make advances to him and so on. These are matters for you to decide as to whether or not you believe [A.B.]. If you are, having taken all this into account, not satisfied on [A.B.'s] credibility then that is again an end of the case. In the circumstances of this case unless you believe both the girls you can't convict on either charge. Again when you come to the charge relating to [L.B.] you have to ask yourself, do you believe her? Do you believe not only what she said but that she is putting a proper interpretation on what happened, or do you think she might be putting a sinister interpretation on what was no more than an innocent piece of horseplay? You also take into account what weight you place on the contradiction there is between her account of the sleeping arrangements and the account given by all the members of the Russell family and particularly the little boy who has the clearest memory of it. In relation to that charge if you were to convict you would have to delete at least the words, “remove her pants”, and also, “insert your fingers into her vagina”, and, “attempt to induce her to touch your penis”. As I say unless you believe these two girls and are satisfied on their evidence that the Crown have proved their case then that is an end of the matter. There is a specialty in this case, which might strike you as rather odd, even if you did believe both these girls there is still a problem for you. The problem arises out of the law of corroboration. You may think it is rather odd to say that we do believe both these girls implicitly but nonetheless we will acquit the accused. It is important that an accused is not convicted unless there is, what the law regards, proper evidence against him because the law of evidence is intended as a safeguard for everyone. In particular, in this context, the Scots rule about corroboration should be upheld because it is important that people should not be convicted on the say so of one person. All right, you may say that there is the say so of two persons here, if you believe them, but matters are not as simple as that. In the ordinary case where a man is charged with an offence you cannot convict him on the evidence of one witness however much you believe that witness. You may have a man who has a totally believable character whose evidence you believe totally and that is the only evidence in the case, the law of Scotland says, “No, it is not proved to convict you must acquit.” There must be evidence from at least two sources pointing to guilt. Again, in the ordinary case where a man is charged with two offences you have to consider each of them separately and be satisfied that there is credible and reliable evidence from two witnesses for each offence—in the normal case. In this case, although as I have...
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