APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Menzies Lord Brodie Lord Bracadale	[2013] HCJAC 8 Appeal No: XC616/11   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE   by   MR   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: A Ogg, Solicitor Advocate; McCusker McElroy & Gallanegh, Paisley

Respondent: A Di Rollo, AD; the Crown Agent

 

16 January 2013

 

[1] On 19 August 2011, at the High Court in Edinburgh, the appellant was convicted of ten charges involving sexual offences against three daughters, two nieces and a daughter-in-law. The significant libels, for purposes of the main argument in the appeal, are as follows:

"(4) on various occasions between 1 April 1978 and 1 October 1978 ... at ... Cottage [G] Estate, Edzell, Angus ... and in a motor vehicle on unclassified roads, tracks and land on said (G) Estate ... you ... did assault [DB], born ... December 1961, your daughter, ... and did induce her to sit on your knee, rub your erect private member against her body, handle her naked breasts and private parts, remove her clothing, lie her on your bed, lie on top of her and place your naked private member against her naked private parts and tell her that you were going to have sexual intercourse with her and would ejaculate onto her;

(6) on an occasion between 1 June 1973 and 30 August 1973 ... on an unclassified road near to the A73 ... you ... did assault SG, your niece, born ...  January 1962 ... remove her clothing, climb on top of her, place your private member against her private parts and rape her, to her injury".

 

In relation to certain subsidiary arguments (infra), charge (11), which involved the same complainer as in charge (6) (ie the appellant's niece [SG]) was a physical assault in 1983 or 1984 whereby, with intent to rape, the appellant had entered the complainer's house uninvited and pushed her to the floor. Charge (14) libelled an indecent assault upon [AB] in 1986 or 1987 at the complainer's home. The assault also involved a push. Charge (15) libelled lewd, indecent and libidinous practices from 1992 to 1994 at the [G] Estate against the appellant's niece [LS], when she was 14 or 15, including inducing her to sit on his knee and rubbing his private member against her body.

[2] On 23 September 2011 the appellant was sentenced to a total custodial period of eleven years, the period on charge (4) being three years and that on charge (6) being a consecutive seven years (see infra).

 

The Trial
[3] The events in charge (6) are first, chronologically. The complainer, who is the appellant's niece, was 11 years old when she left primary school in 1973. During the summer holidays, in August 1973, it was arranged that the appellant would take the complainer to the local secondary school to see what class she would be in for the following term. He had taken her to the school by car. On the way back to her home in Lanarkshire, the appellant had said to her that he "had to go a message". He drove off the main A73 road, down a track and into a field. He stopped the car and jumped onto the front passenger seat where the complainer had been sitting. He took his trousers down, pulled down the complainer's shorts and pants, and raped her. Nothing was said during the episode. The complainer was crying. The appellant eventually said, "You're a big girl now, just be quiet". He took her for an ice-cream before driving her home.

[4] The complainer on charge (4), who is the appellant's daughter, gave evidence about an incident which occurred when she was about to go to college and would have been about 16. She was at home when the appellant appeared and said that he was going to have sex with her. He stated that he was not going to ejaculate inside her, that he would do so on her stomach and that she should not worry. She said that she felt his penis touching her vagina and believed it to be erect. The appellant must have been on top of her, although she could not remember that. He had just moved away and nothing further had happened.

[5] The appellant made a submission at the conclusion of the evidence, relative to charge (6), to the effect that there was insufficient evidence of the rape element in the charge since rape could not be corroborated by evidence of other "lesser" crimes, such as the indecent assault libelled in charge (4). The trial judge repelled that submission. When he came to directing the jury, he gave them the standard directions on corroboration and proceeded to provide specific directions on the application of the principle of mutual corroboration. In particular, he advised the jury that they could apply mutual corroboration if they were satisfied that offences, spoken to by different complainers, were sufficiently closely linked in nature, circumstances and time as to indicate that they were part of a single course of criminal conduct pursued by the accused. In relation to the rape element in charge (6), the trial judge directed the jury that, even if they found the complainer credible and reliable in her account of being raped, it would be open for them to take the view that the rape was of a different character from the indecent assaults libelled in the other charges, such that it could not be regarded by them as part of the same course of conduct. In that event, the jury would be bound to acquit of the rape. On the other hand, the trial judge continued (charge, p 48):

"Equally, it would be open to you to take the view that rape is merely a different degree of essentially the same course of sexually abusive conduct against younger females in the family circle assuming, of course, you found the course of conduct established. In that event you would have corroboration and you would be entitled to convict, I say.

 

However, and this is another qualification, I think there would be difficulty, as a matter of law, in finding a course of conduct that extended to rape if there was not at least one other incident forming part of the course of conduct involving a different victim that at least approached rape. On that basis, I must direct you that, in the circumstances of this case, you would not be entitled to convict on charge 6 of rape unless you were also to find charge 4 of assault on [D] while naked on the bed etc. established to your satisfaction".

 

 

Submissions
Appellant
[6] The first ground of appeal is that there was insufficient evidence to corroborate the complainer's evidence of rape on charge (6). In particular, the evidence on the assault charge (4) could not provide that corroboration, given the dissimilarities in time, character and circumstances. In particular, the evidence of indecent assault on charge (4) could not be used to corroborate an incident involving penetration or sexual intercourse, as was libelled in charge (6).

[7] For the principle of mutual corroboration to operate, it was necessary that the charges be "the same in kind" (Moorov v HM Advocate 1930 JC 68, LJG (Clyde) at 74 and 75). The crimes had to be "truly ... the same" (Hume: Commentaries ii, 385; Alison: Practice, 552; Tait: Evidence (3^rd ed), 438; Dickson: Evidence (Grierson ed), II, paras 18.09 and 18.10). The law had been correctly set out in the dissenting Opinion of Lord Eassie in B v HM Advocate 2009 JC 88 where he said (at para [30]) that the charges had to involve the same crime "in any reasonable sense". There had been no argument in HM Advocate v McDonald 1928 JC 42 that offences ought to be grouped into different categories and that the lesser could not corroborate the greater. Such grouping was approved in Moorov (supra), where the trial judge (Lord Pitman, at 69) and the Lord Justice Clerk (Alness, at 78)) divided the offences into three categories: assault; indecent assault; and attempt to ravish (see also Lord Sands at 91; Lord Blackburn at 93; and Lord Morison at 94).

[8] The requirement that the crimes under consideration be "the same" was emphasised in HM Advocate v Cox 1962 JC 27 (Lord Hunter at 29 under reference to Ogg v HM Advocate 1938 JC 152). In HM Advocate v Kennedy, 5 December 1963, High Court, unreported (referred to in Reid: "An extension of Moorov" (1963) 79 SLR 221), a charge of sodomy on a boy was deemed mutually corroborative of charges of lewd and libidinous practices against three girls. This appears to have been because the trial judge (Lord Migdale) took the view that offences against children were in a particular category. Macphail (Evidence, para 23.33) disagreed with the result in Kennedy and preferred that in Cox (supra) and HM Advocate v WB 1969 JC 72. In WB the Lord Justice Clerk (Grant, at 73 to 74) held that evidence of lewd and libidinous behaviour could not corroborate a charge of incest, because the latter was a much more serious offence. PM v Jessop 1989 SCCR 324, determined that sodomy, and attempted sodomy, were so closely related that they could corroborate each other in relation to brothers. It had been wrongly decided (see also McMahon v HM Advocate 1996 SLT 1139). KP v HM Advocate 1991 SCCR 933 involved a direction by the trial judge (Lord Sutherland), which was not appealed, that, under the then existing law, rape of a female could not generally be corroborated by sodomy of a male, but that that rule did not apply in the case of the sexual abuse of children (see also Russell v HM Advocate 1992 SCCR 257; Coffey v Houston 1992 SCCR 265; Smith v HM Advocate 1995 SCCR 583; Reid v HM Advocate 1999 JC 320; NKS v HM Advocate 2006 SCCR 70; Hughes v HM Advocate 2008 SCCR 399; McKenna v HM Advocate 2008 SCCR 702; Cannell v HM Advocate 2009 SCCR 207; Hussain v HM Advocate 2010 SCCR 120; ANM v HM Advocate 2011 SCCR 47; Pringle v Service 2011 SCCR 97; AK v HM Advocate 2011 SCCR 495; B v Harrower 2011 SCCR 393; Dodds v HM Advocate 2002 SCCR 838; Carpenter v Hamilton 1994 SCCR 108; Reynolds v HM Advocate 1995 SCCR 504).

[9] The appellant's second ground of appeal was that there was insufficient evidence to allow the jury to convict the appellant in respect of charge (11). This had been an assault on the appellant's niece, involving significant force. There were insufficient similarities between that crime and the other charges on the indictment, none of which had involved any force. The third ground was that there was insufficient evidence to convict of charge (15). It had involved lewd and libidinous practices in the years 1992 to 1994 and the closest charge in time was almost a decade earlier (charge (13)).

 

Respondent
[10] The Crown submitted that the relevant legal test remained that set out by the Lord Justice General (Clyde) in Moorov (supra, at 73). It was that the connection between the separate acts must be such "as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign or adventure, which lies beyond or behind - but is related to - the separate acts". It was this unity which corroborates the direct evidence. What was required was more than a mere proclivity to commit particular crimes. However, the Lord Justice General considered that successive reports from children of sexual abuse could corroborate each other (see more recently NKS v HM Advocate 2006 SCCR 70, Lord MacLean, delivering the Opinion of the Court, at para [10]).

[11] Whether separate incidents of behaviour could be regarded as so connected in time, character and circumstances, as to justify an inference that they are part of a course of criminal conduct systematically being pursued by an accused, must always be a question of fact and degree. All aspects of the evidence, both similarities and dissimilarities, had to be considered and the issue should be left to the jury, unless it could be said that on no possible view could there be a connection between the charges (Reynolds v HM Advocate 1995 SCCR 504, LJG (Hope), delivering the Opinion of the Court, at 508). Despite HM Advocate v WB 1969 JC 1, there was no general or absolute rule that the lesser could not corroborate the greater, nor one whereby non-penetrative conduct could not corroborate penetrative conduct (see McKenna v HM Advocate 2008 SCCR 702, Lady Paton, delivering the Opinion of the Court, at para [16]; Russell v HM Advocate 1992 SCCR 257, LJC (Ross) at 258 to 259; McMahon v HM Advocate (supra) LJG (Hope) at 1142; NKS v HM Advocate (supra), Lord MacLean at para [10]). An attempted act could corroborate a completed crime (PM v Jessop (supra) LJG (Emslie) at 325; and ANM v HM Advocate 2011 SCCR 47, LJG (Hamilton) at para [5]). Different types of penetrative abuse against children could corroborate each other (McKenna v HM Advocate (supra) and KP v HM Advocate 1991 SCCR 933, Lord Sutherland at 935-936). In each case the whole facts and circumstances require to be considered.

[12] Less serious conduct could corroborate more serious conduct having the same nomen juris (Coffey v Houston (supra)). Sexual abuse of children possessed a particular criminal characteristic (Moorov v HM Advocate (supra) LJG (Clyde) at 75). The mechanics of the particular abuse, or the stage or stages which the abuse had reached, and whether the charge was at common law or under statute, did not exclude the application of mutual corroboration (see B v HM Advocate (supra) per Lord Eassie at paras [26]-[27]). The question was whether an underlying unity of intent between the offences could be demonstrated. There was no specific time period within which mutual corroboration could operate, although greater caution required to be exercised when there was a substantial time lag. Time was only one factor or circumstance (Bargon v HM Advocate 1997 SLT 1232; Dodds v HM Advocate (supra); and Hussain v HM Advocate 2010 SCCR 124). The emphasis was on whether it was possible to infer that a particular incident formed part of a course of conduct systematically being pursued (Pringle v Service 2011 SCCR 97 Lord Mackay, delivering the Opinion of the Court, at para [13]).

[13] The Lord Justice General (Hamilton) in B v HM Advocate (supra) at para [8]) had presaged the Scottish Law Commission's consideration in its Discussion Paper on "Similar Fact Evidence and the Moorov Doctrine" (paper No.145, December 2010, paras 5.47 to 5.52). The issue, which was characterised as "The development of Moorov" and "The need to show a course of conduct", was revisited in the Commission's final report with the equivalent title (No. 229, at paras 6.10 - 6.15), albeit with a somewhat different commentary in light of AK v HM Advocate 2011 SCCR 495. The Lord Justice General in B v HM Advocate (supra) had focused on the particular issue of "identity of kind" and observed that the Lord Justice General (Clyde) in Moorov would have had in mind identity of nomen juris when using that expression. That approach was, however, difficult to reconcile with the approval in Moorov of HM Advocate v McDonald (supra), where mutual corroboration applied to charges of lewd and libidinous practices in respect of one daughter and incestuous intercourse in respect of another. The Lord Justice General explained that the law has moved on since Moorov (para 6) and that what was now critical, apart from similarity in time, place and circumstances, was a similarity of conduct, as described in the evidence. The rule was, after all, one of evidence and not substantive law (see also Lord Nimmo Smith at para [10]). The majority in B v HM Advocate (supra) had held that identity of crime was not essential, even if, in terms of AK v HM Advocate 2011 SCCR 495, the requirement to have sufficient similarities to infer a course of conduct remained important (LJC (Gill) para [10]).

[14] The doctrine of mutual corroboration involved two distinct and essential elements. First, there required to be a connection or similarity in time, character and circumstances of the commission of the separate acts. Secondly, there required to be a similarity of character, or identity of kind, in the conduct involved sufficient to allow the inference of an underlying unity of intent, project, campaign or adventure capable of amounting to a single and singular course of conduct. In the circumstances of this case, charge (6) was sufficiently similar in time, character and circumstances to charge (4) to justify the inference that it was part of a single course of conduct, systematically pursued with the appellant.

[15] Charge (11) had been very similar in character to charge (14). Both complainers had been female relatives of the appellant, namely his niece and his daughter-in-law. Both incidents occurred at the homes of the complainers, who were alone with the appellant. Both complainers had asked the appellant to leave, but he had tried to force his attentions upon them. Despite the time gap, the similarities between charge (15) and the other charges on the indictment were such as to permit the operation of mutual corroboration. Again, the complainers were all relatives of the appellant and the circumstances involved the appellant being alone with them and acting in a similar manner.

 

Decision

[16] It can hardly be necessary for the court to explore once more the law in relation to the application of the principle of mutual corroboration, standing the recent detailed analysis in B v HM Advocate 2009 JC 88. There, Lord Eassie scrutinised the meaning of the several opinions in Moorov v HM Advocate 1930 JC 68 as they distilled the words of the Institutional Writers on criminal law and evidence. Ultimately, he formed the view (para [34]) that, for the principle to apply, the charges had to involve "the same crimes in any reasonable sense". He took the view that masturbating openly at different times in front of females of different ages involved crimes which were "inherently different" in essence. However, Lord Eassie's "valiant, if foredoomed, attempt to hold back the extension of the Moorov doctrine" (commentary at 2009 SCCR 119) was the minority view and this court has little hesitation in endorsing the majority opinions, notably that of the Lord Justice General (Hamilton).

[17] Almost at the outset of his Opinion, the Lord Justice General correctly pointed to the significant element which requires to be taken into account in any analysis of Moorov (supra). This is simply that the law has moved on since 1930 (para [3]). It has done so in an attempt to keep pace with modern societal understanding of sexual and other conduct and, in particular, what are perceived to be characteristic links between the perpetration of different types of sexual and physical abuse especially, but not exclusively, of children and young persons. The court today will not proceed upon outdated perceptions, such as those of Lord Sands (at p 89) on the connection between different forms of conduct by errant husbands, but upon its own developing knowledge of sexual and other behaviour and how one type of illegal activity can often be intimately connected with other types of different, but still illegal, acts. Sexual and physical abuse of different kinds perpetrated by one person but occurring within the same family unit, extended or otherwise, is one model of this type.

[18] There had, of course, been recognition of the connection between different levels or types of sexual abuse even before the decision in Moorov (supra). Thus HM Advocate v McDonald 1928 JC 42 determined that incest could be corroborated by lewd practices, where both were perpetrated on the daughters of the accused. This was so albeit that incest is not "in any reasonable sense" the same crime as lewd practices, although it may involve very similar conduct up to and surrounding the act of intercourse. The connections were not, however, always acknowledged by particular judges and, indeed, could not be if a rigid test of "the same crime" were applied (eg HM Advocate v Cox 1962 JC 27; and HM Advocate v WB 1969 JC 72). However, the courts were beginning to favour a broader approach which paid real heed to the test of underlying unity of purpose (HM Advocate v Kennedy (1963) 79 SLR 221; PM v Jessop 1989 SCCR 324; and KP v HM Advocate 1991 SCCR 933).

[19] Matters reached a watershed at appellate level in McMahon v HM Advocate 1996 SLT 1139). The Lord Justice-General (Hope), delivering the Opinion of the Court, expressed the law thus (p 1142):

"The fact that each crime is described as an instance of lewd, indecent and libidinous conduct, or as an indecent assault, is not a conclusive pointer in favour of the application of the rule. Nor does the fact that the crimes each have a different nomen juris necessarily point against its application. It is the underlying similarity of the conduct described in the evidence, not the label which has been attached to it in the indictment, which must be examined in order to see whether the rule can be applied".

 

Thus it was for the jury to determine whether there was an underlying similarity between behaviour which involved an attempt at penile penetration of one girl (assault with intent to rape) and conduct involving attempted digital penetration of another girl (lewd practices). That the dictum of the court in McMahon (supra) accurately represented the law was stated relatively recently in Hughes v HM Advocate 2008 SCCR 399 (Lord Osborne, delivering the Opinion of the Court, at para [9]) and B v HM Advocate (supra, LJG at para [4], Lord Nimmo Smith at [9]).

[20] What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel (see S(NK) v HM Advocate 2008 SCCR 70, Lord MacLean, delivering the Opinion of the Court, at para [10]) such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused (Ogg v HM Advocate 1938 JC 152, LJC (Aitchison) at 158; K v HM Advocate 2011 SCCR 495, LJC (Gill) at para [10]) . Whether these similarities exist will often be a question of fact and degree requiring, in a solemn case, assessment by the jury (Reynolds v HM Advocate 1995 SCCR 504, LJG (Hope), delivering the Opinion of the Court, at 508) under proper direction of the trial judge.

[21] There is then no rule that what might be perceived as less serious criminal conduct cannot provide corroboration of what is libelled as a more serious crime. Once that is recognised, it can be seen that the conduct of the appellant in charge (6) (1973) in removing the clothing of his 11 year old niece, lying on top of her and then raping her in the manner libelled may be corroborated by the conduct in charge (4) (1978) of climbing on top of his 16 year old daughter, removing her clothing and placing his private member against her private parts with the stated intention of having intercourse with her. The penetration in charge (6) is sufficiently corroborated by what appears to have been near penetration and an expressed desire to achieve it on charge (4). The trial judge's directions in that regard were correct and the appeal on this ground must be refused.

[22] In relation to grounds 2 and 3, the court is satisfied that the events proved relative to charge (11) were capable of being corroborated by those on charge (14) (and vice versa). Both involved physical attacks, involving pushing, on female relatives in their own homes at times when the appellant was alone with them. For similar reasons, and notwithstanding the gap in time (6 or 7 years), the court is satisfied that the events proved on charge (15), involving lewd practices towards a niece of the appellant, were capable of being corroborated by the incidents involving sexual misconduct towards other female relatives, including another niece. In these circumstances, the appeal against conviction is refused.

 

Sentence

[23] The appeal is also against sentence. The appellant maintains that the periods of imprisonment were excessive having regard to his personal circumstances. He is aged 72. He has been married for over 50 years and has had a good work record as a gamekeeper and river manager since 1955. He is a first offender and is assessed as at low risk of re-offending. It was said that he has a good record in the limited time he has been in prison.

[24] The most significant individual sentence is that of seven years on charge (6). That period of custody cannot be regarded as excessive for the rape of an eleven year old relative. The periods of imprisonment on charges (7) - (9) and (11) ranged from three months to two years but all ran concurrently with that on charge (6). Even viewed in isolation, as instances of sexual misconduct towards relatives, none can be viewed as excessive. The further significant sentence was the three years imposed in respect of charge (4). Again, in respect of such indecent conduct towards a teenage daughter, the selection of this period cannot be seen as excessive, nor can the periods of between three months and one year on the concurrent sentences for charges (12) to (14). The remaining offence is charge (15), which attracted a one year sentence for a significant incident of lewd behaviour towards his teenage niece. Again, this cannot be regarded as excessive. Looked at cumulatively, the sentence of eleven years in total for ten charges of sexual misconduct, of varying seriousness, involving three daughters, two nieces, and a daughter in law, can only be regarded as entirely reasonable. The appeal against sentence is also refused.