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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Johnston
Lord Reed
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[2008] HCJAC20
Appeal No: XC895/05
OPINION OF THE COURT
delivered by LORD OSBORNE
in
NOTE OF APPEAL AGAINST
CONVICTION
by
GRAHAM HUGHES
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: G Forbes, Advocate; Balfour + Manson LLP
Alt: Ogg, Q.C., A.D.; Crown Agent
29 April 2008
The background
circumstances
[1] The appellant faced an indictment
containing three charges. They were in
the following terms:
"(1) on
various occasions between 21 December 1987 and 20 December 1992, both
dates inclusive, the exact dates being unknown, at 82 Barnbeth Road, Glasgow,
on numerous occasions, you did assault AH, date of birth 21 December 1978,
... and did instruct him to remove his clothing, lie on a bed, ties his hands
behind his back, and strike him repeatedly across the buttocks with a belt;
(2) on
various occasions between 21 December 1987 and 20 December 1992, both
dates inclusive, the exact dates being unknown, at 82 Barnbeth Road, Glasgow
and at a wooded area at Barnbeth Road, Glasgow, on numerous occasions you did
use lewd, indecent and libidinous practices and behaviour towards said AH, show
him pornographic magazines, pornographic videos, induce him to handle your
private member and to masturbate you to the emission of semen, touch his
private member, masturbate him, induce him to perform oral sex on you, perform
oral sex on him and did attempt to insert your private member into the hinder
parts of the body of said AH; and
(3) between
1 January 1992 and 31 December 1992, both dates inclusive, the exact
dates being unknown, at 82 Barnbeth Road, Glasgow and at a wooded area at 85 Barnbeth
Road, Glasgow and Barnbeth Road, Glasgow, on numerous occasions, you did use
lewd, indecent and libidinous practices and behaviour towards JH ... and did
instruct her to remove her clothing, remove your own clothing and did cause her
to lie on top of you and you did simulate sexual intercourse with her."
The appellant was convicted after trial on charge (1),
as libelled; on charge (2) under
deletion of the words "show him pornographic magazines, pornographic
videos,"; and on charge (3), as
libelled. At the time when the offences
in respect of the first complainer were said to have commenced, the appellant
was aged 14 years of age and the first complainer 9 years. At the time when the offences in respect of
the second complainer was said to have commenced, the appellant was aged
18 years and the second complainer 8 years of age. At the trial, the Crown led evidence from the
first complainer, his present partner, and from the second complainer. Following the completion of the Crown's case,
a submission of no case to answer was made, but repelled. Thereafter the appellant himself gave
evidence, as did several witnesses led on his behalf.
[2] The evidence
in the case is summarised by the sheriff in her report to this court. The first complainer at the material time
lived near to the appellant's family house at 82 Barnbeth Road, Glasgow, with both his parents, his elder
brothers and his younger sister, the second complainer. He got to know the appellant through playing
football with him and others. The first
complainer remembered being invited into the appellant's house by the appellant
to play with a new computer console. On
the first occasion when such an invitation was issued, this complainer
refused. On the second occasion he
accepted. The appellant took this
complainer to his bedroom. There they
played games on the console which was linked to a television set in the
bedroom. As this complainer continued to
play, the appellant had left the room for a few minutes. When he returned into the room he was
naked. The appellant had told this
complainer to take his clothes off. He
complied. Having ordered this complainer
to lie face down on his bed and put his hands behind his back, the appellant
tied the complainer's hands together and then his ankles together. He then had whipped the complainer on his
buttocks with a leather belt. The
appellant had then untied the complainer, forced him to put his hands between
the appellant's legs and told him to masturbate him. The appellant had put the complainer's hands
on his, the appellant's penis. This
complainer testified that the appellant's penis was erect and that he had
masturbated him and that the appellant had ejaculated. When these actions had been completed, this
complainer said that he had got dressed and gone home. The same thing had happened several times
over a period over the next four to five years.
The incidents had taken place mainly in the appellant's family home in
his bedroom, with the only persons being present in the house being this
complainer and the appellant. This
complainer said that the appellant had given him money, sweets, games and other
things. A routine had been
developed. The appellant had told this
complainer to tie him up; sometimes the
appellant had worn ladies' stockings.
Sometimes the appellant had wanted to be masturbated while he was tied
up. Matters had progressed to oral sex,
which had been mutual. As this
complainer had got older, the appellant had made him perform anal sex on him as
well. This complainer had been too
scared to tell either his parents, or the police, or a school teacher. Eventually this complainer had made a
statement to police officers, having revealed what had happened to him to his
partner. This complainer also described
certain things which had happened to him in the wooded area referred to in
charge (2). This complainer said that he
had been stripped naked, tied to a tree and "battered" by the appellant. That had happened when he was 9 or 10 years
of age.
[3] The second
complainer had been brought up with the first complainer close to the
appellant's family home. The appellant
had been a lot older than her and had been friendly with her brother. She described in evidence a den in the wooded
area referred to in charges (2) and (3).
She testified that she had been there alone with the appellant when he
had been "touching" her. She remembered
it, he had made her touch him on his private parts. Such behaviour on the part of the appellant
had also occurred in his house once or twice.
This complainer had been invited to the house by the appellant where
they had gone to his bedroom. There was
no one else there. The appellant had
asked her to lie on his bed beside him while he was unclothed. The appellant had asked her to remove her
clothing, which she had done. She was
unable to remember exactly what had happened in the bed. On two occasions, the appellant had touched
her in the livingroom of his family house when no one else was in the
house.
The grounds of appeal
[4] The appellant has now appealed against
the foregoing convictions on the following grounds:
"1. There was insufficient evidence in
relation to charge 1. There was no
corroboration of the complainer's evidence on this charge, and in particular no
corroborated evidence to establish the necessary mens rea for the crime of assault.
The sheriff erred in rejecting a submission of no case to answer.
2. The sheriff misdirected the jury in relation to
charge 1. She erred in directing
the jury that they could use the evidence of the complainer in charge 3 (a
charge of lewd and libidinous practices) to corroborate the evidence of the
complainer in charge 1 (a charge of assault).
3. There was insufficient evidence to entitle the jury to
convict the appellant of charges 2 and 3.
The sheriff erred in rejecting a submission of no case to answer. The conduct spoken to in relation to each of
these charges was significantly different, the sex of the complainer in each
was different, and in the whole circumstances the sheriff erred in holding that
there was sufficient similarity to allow the jury to apply the Moorov doctrine.
4. Esto there was
sufficient evidence to justify a conviction on charges 2 and 3, there was
insufficient evidence to justify conviction on these charges as libelled. In particular there was no evidence of
attempted anal penetration in relation to charge 2, and no evidence of
simulated sexual intercourse in relation to charge 3."
Submissions of the
appellant
[5] After having explained the foregoing
background to the court, counsel moved us to quash the three convictions upon
the basis that there was insufficient evidence to support them. In particular, the Moorov doctrine could not be applied as between charge (3) and
either of the other two charges. As a
secondary position, he moved the court to quash the convictions on
charges (2) and (3) and substitute for them convictions under deletion of
certain words. The words to be deleted
from the conviction on charge (2) were:
"and did attempt to insert your
private member into the hinder parts of the body of said AH;".
The conviction on charge (3) should be under deletion of the
words:
"and you did simulate sexual
intercourse with her."
It was a matter of agreement between counsel for the
appellant and the Advocate depute that these deletions ought to be made, since,
in her report to this court, the sheriff had stated that there was no evidence
to support those parts of those charges.
[6] Counsel
submitted that as between the charges (1) and (3) and charges (2) and (3)
there was insufficient similarity to justify the application of the Moorov doctrine. He then proceeded to summarise the evidence,
to which we have referred, from the sheriff's report. Charge (1) was quite simply a charge of
assault, whereas charge (3) was one of lewd, indecent and libidinous
practices and behaviour. So far as
charge (2) was concerned, that also was a charge of lewd, indecent and
libidinous practices and behaviour which involved overt stimulation of the
private parts of both participants.
However, charge (3) involved no such activity. All that was involved was the appellant lying
on a bed naked with the second complainer.
Furthermore, it was submitted that there was no evidence of the
appellant causing the second complainer to lie on top of him. While the second complainer had referred to
the appellant touching her in various circumstances, it was not open to the
jury to use that evidence, since there were no averments in charge (3) to
that effect. In this connection reference
was made to the description of the rule in Moorov
in Renton & Brown, Criminal Procedure
6th ed., para.24.87.
Submissions of the
Crown
[7] The Advocate depute began by reminding
the court of the terms of section 96 of the Criminal Procedure (Scotland) Act 1995. Evidence had been led without objection in
relation to the second complainer, which went beyond the terms of
charge (3) of the indictment. An
amendment to the indictment could have been made, although that was not in fact
done. The evidence relating to the
matters in question had been properly before the jury and could be taken into
account by them, although any conviction in terms of charge (3) had to be
in terms of that charge as it stood.
[8] In examining
the application of the Moorov
doctrine to the circumstances of the present case, the Advocate depute submitted
that the court should look at the similarities that existed between the
relevant charges. It was such
similarities that could be the basis for the application of the doctrine. He then listed these similarities. In the first place, both of the complainers
had been pre-pubescent children at the material time. Secondly, both complainers were siblings and
had lived in family as close neighbours of the appellant. Thirdly, certain of the offending activity
had occurred in the appellant's bedroom in his house when he and the
complainers were alone there with him.
Fourthly, otherwise the offending had occurred in a den in a wooded area
nearby. Fifthly, it was quite plain that
the offending was of an indecent nature.
Charge (1), although charged as an assault, was plainly an indecent
assault since the first complainer had been caused to remove his clothing. In any event, while charges (1) and (2)
were separate, since they involved different offences, in reality the actings
complained of in both of the charges had taken place on the same occasion in
some instances. So far as
charge (3) was concerned, it was plain that the conduct there involved was
indecent. Sixthly, there had been a
close association in time as between the relevant offences. Indeed there was, to some extent, an overlap
of time. The court could ask itself the
question of whether there were dissimilarities as between the relevant charges
which undermined the evident similarities.
If that question were asked, the answer would be that there were no
significant dissimilarities. The fact
that the complainers were of different gender was not important. It was evident from the nature of the conduct
referred to in the relevant charges that the appellant had been pursuing a
purpose of obtaining sexual gratification from the abuse of young
children. The fact that the crime charged
in charge (1) was different from the crimes charged in charges (2)
and (3) was immaterial. In this
connection reference was made to the observations of Lord Sands in Moorov v His Majesty's Advocate 1930 JC 68, at page 91. The nomen
iuris involved was not important. In
this same connection reliance was placed upon P v Her Majesty's Advocate
1991 S.C.C.R. 933 at page 935; McMahon v Her Majesty's Advocate 1996 S.L.T. 1139 and Carpenter v Hamilton 1994 S.C.C.R. 108.
The decision
[9] The principal issue in this appeal is
whether the Moorov doctrine can
properly be applied between each of charges (1) and (2), spoken to in
evidence by the first complainer and charge (3), spoken to by the second
complainer. While charge (1) is a
charge of assault, in our opinion, it is quite plain that it requires to be
seen as an indecent assault. That quality
can properly be inferred, in our view, from the fact that the first complainer
was assaulted while naked, lying on a bed and with his hands tied behind his
back. He was repeatedly struck across
the buttocks with a belt. Although the
charge is one of assault, in our view, if the circumstances are otherwise
appropriate, such an offence may be used to supply mutual corroboration in
terms of the Moorov doctrine in
relation to a charge of lewd, indecent and libidinous practices and behaviour,
simply because of the indecent character of the assault. Putting the matter in another way, the fact
that the nomen iuris of the crime in
charge (1) differs from that of the crimes charges in charges (2) and (3) does
not, of itself, prevent the application of the Moorov doctrine. In this
connection we refer to P v Her Majesty's Advocate and McMahon v Her Majesty's Advocate.
Accordingly the question here is whether the offences charges in
charges (1) and (2) can be corroborated by the evidence relating to the
offence involved in charge (3).
That depends on whether there exists a sufficiently close link in time,
character and circumstances as to demonstrate that each offence may be seen as
an element in a single course of criminal conduct. In our opinion, there is such a
relationship. In the matter of time
there is plainly a close relationship between the relevant charges; indeed, there is a significant overlap in the
periods of time involved. As regards the
character and circumstances of the offences, likewise we consider that there is
a close relationship between them. In
this connection we were impressed by the factors relied upon by the Advocate depute
in his submissions to us. Both the
complainers were pre-pubescent children at the material time. They were siblings and both lived in family
as neighbours of the appellant. The
offending occurred in relation to each complainer in the appellant's bedroom in
the house where he lived when he and the complainers were alone. Otherwise the offending occurred in the
nearby wooded area. All of the offending
involved in all of the three charges was plainly, in our opinion, of an
indecent nature, associated with the removal of the clothes of the complainer. In all the circumstances we are satisfied
that there was the necessary close relationship in time, character and
circumstances between the offences libelled in charges (1) and (2) and
that libelled in charge (3).
Accordingly we consider that the sheriff was entitled to repel the
motion of no case to answer and entitled to direct the jury that it was open to
them to apply the Moorov doctrine as
between each of charges (1) and (2) and charge (3). Furthermore, the jury were entitled in fact
to apply the doctrine in that way. It
follows that the primary contention of the appellant must be rejected.
[10] Before us
there was some discussion of the significance of the fact that during the
course of her evidence, the second complainer gave evidence of lewd behaviour
towards her on the part of the appellant going beyond what had been averred in
charge (3). Surprisingly, the
questions eliciting this evidence were not the subject of objection on behalf
of the appellant. The consequence was that
the evidence was led before the jury and was available to them for their consideration. Plainly the jury would not have been entitled
to hold the facts spoken to in that evidence proved, nor did they attempt to do
so. In these circumstances, we do not
consider that the mere fact that that evidence was led, without objection, in
any way undermines the validity of the convictions which the jury did
return.
[11] It was a
matter of agreement before us, based upon the sheriff's observations in her
report to us, that certain parts of the averments in charges (2) and (3), which
the jury held proved, had not been supported by any evidence. It is thus inevitable that the averments
concerned must be deleted from the terms of the charges on which the appellant
was convicted.
[12] In the whole
circumstances we shall allow the appeal in relation to charges (2) and (3)
only, but only to the extent of quashing the parts of those charges which were
not supported by any evidence. In the
case of charge (2) the words concerned are:
"and did attempt to insert your
private member into the hinder parts of the body of said AH."
and in the case of charge (3) the words:
"and you did simulate sexual
intercourse with her".
[13] It was not
contended that these deletions would have any impact on the sentence imposed on
the appellant.
