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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 19

HCA/2016-000463/XC

 

Lord Brodie

Lady Clark of Calton

Lord Turnbull

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST CONVICTION

by

DM

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Ogg (sol adv);  Paterson Bell, Solicitors (for Beltrami & Co Ltd Glasgow)

Respondent:  Cottam (sol adv), AD;  Crown Agent

31 March 2017

Introduction
[1]        On 18 July 2016 the appellant, whose date of birth is in 1961, went to trial at Kilmarnock Sheriff Court on an indictment containing five charges of sexual offences committed against young girls. 

[2]        Charge 3 was withdrawn by the Crown in the course of the trial.  On 21 July 2016 the jury, by a majority, convicted the appellant of charges 1, 2 and 5.  They found charge 4 not proven, again by a majority.  The charges of which the appellant was convicted were as follows:

“(1) on various occasions between 4 April 1987 and 3 April 1990, both dates inclusive, at [an address in East Renfrewshire] you … did use lewd, indecent and libidinous practices and behaviour towards CG, your niece … then aged between 7 and 9 years … and did enter her bedroom while she was asleep, cause her to waken, stand naked beside her bed exposing your penis, rub her legs, tell her to be quiet, force your hand between her legs, handle her vagina and did digitally penetrate her vagina.

 

(2) on an occasion between 2 June 1996 and 1 June 1997, both dates inclusive, at [an address on Arran] you … did use lewd, indecent and libidinous practices and behaviour towards MB, your niece … then aged 15 years … a girl then of or over the age of 12 years and under the age of 16 years, and did enter the room where she slept, and while naked lay down beside her on a sofa and touch her on the body; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6.

 

(5) on an occasion between 12 September 2005 and 11 September 2008, both dates inclusive, at [the locus specified in charge 2] you … did use lewd, indecent and libidinous practices and behaviour towards BA, your niece … a girl then of or over the age of 12 years and under the age of 16 years, and did enter the room where she slept, place your hand under the covers, place your hand inside her lower clothing and did handle her vagina;

 

CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 6”.

 

[3]        The sheriff adjourned the diet for the preparation of a Criminal Justice Social Work Report and remanded the appellant in custody.  On 15 August 2016 the sheriff sentenced the appellant to 42 months imprisonment (2 years’ imprisonment in respect of charge 1 and nine months’ imprisonment consecutively in respect of each of charges 2 and 5).  The appellant has appealed against conviction.

 

Ground of Appeal
[4]        The only ground of appeal in respect of which leave has been granted is that the sheriff misdirected the jury on the possible application of mutual corroboration in relation to the charges of which the appellant was convicted.  Reference is made to the passages in the transcript of the sheriff’s charge where he gives the relevant directions.  It is averred that the sheriff omitted to make any reference to the intervals of time between the various charges whereas it is submitted that in the circumstance of the case he had a duty to bring to the attention of the jury the issue of the intervals of time and to point out to them that this had the potential “to undermine the operation of the Moorov doctrine”.  It is further submitted that this misdirection by omission was compounded by the sheriff saying “the defence ... has not suggested that the circumstances of each incident are so dissimilar that the rule cannot be applied”.  It is averred that this comment conveyed the impression that the defence conceded that the Moorov doctrine applied on the facts of the case.  A miscarriage of justice has accordingly resulted.

 

Circumstances of the Charges in Respect of which the Appellant was Convicted

[5]        The complainers in charges 1, 2 and 5 were all nieces of the appellant.  Each spoke to the appellant having sexually assaulted them in terms of the respective libels.  The offence in charge 1 took place in the complainer’s home when the appellant came to visit.  The complainer, CG, gave evidence that the appellant visited her family’s home about once a month and would stay overnight.  The offences in charges 2 and 5 took place in the appellant’s home on Arran when the complainers MB and BA were staying there overnight.

[6]        Each complainer spoke to having had a close relationship with the appellant at the time of the offences.  The complainers each described the appellant entering the room in which they were asleep.  In each case it was said that the appellant, believing the child to be asleep, touched the complainer on the lower body and on their private parts;  on each occasion he immediately stopped when the complainer reacted or showed awareness of what was happening.  The complainers each described the appellant as being drunk or smelling of alcohol at the time when he entered their rooms.

[7]        The offence in charge 1 was libelled as having been committed between April 1987 and April 1990.  The offence in charge 2 was libelled as having been committed between June 1996 and June 1997.  The offence in charge 5 was libelled as having been committed between September 2005 and September 2008.  Thus, the temporal gap between charges 1 and 2 was some 6 years, and the temporal gap between charges 2 and 5 was some 8 years. 

 

Submissions for the Appellant
[8]        It was accepted on behalf of the appellant that the sheriff had given the jury the standard directions regarding the Moorov doctrine as set out in the Jury Manual (Judicial Institute for Scotland, January 2015) at section 11.2.  In particular, he had directed them that if they were satisfied that the alleged crimes were so closely linked by their character, by the circumstances of their commission, by the place of their commission and by the time of their commission, as to bind them together as parts of a single course of conduct systematically pursued by the appellant, then the evidence of one witness about the commission of one crime could corroborate the evidence of another witness about the commission of another crime.  The sheriff then gave the jury the example of match fixing which appears in the Jury Manual and which refers to incidents “within a reasonably short period of time” which might provide mutual corroboration one of the other.  The sheriff thereafter concluded his directions on Moorov by telling the jury that in the present case there was enough evidence in law as to the crimes alleged being sufficiently close in time, character, place and commission and circumstances for the Moorov doctrine to apply, but that it was for them to decide if the necessary link in time, character and circumstance had been established.

[9]        It was submitted that the interrelation of time in the application of the Moorov doctrine was a “vital consideration. …Acts isolated by a long period of time do not make a course of conduct”:  Moorov v HMA 1930 JC 68, Lord Sands at 89;  Reilly v HMA [2017] HCJAC 5 at paragraph [19].  However, no hard and fast rule is laid down in relation to time and the application of the Moorov doctrine;  the Appeal Court has declined to lay down any maximum interval between two offences:  Reilly at paragraph [19].

[10]      Reference was made to three cases where there had been a significant gap in time between incidents of alleged offending and where the application of the Moorov doctrine had been in issue:  AK v HM Advocate 2011 SCCR 495, G v HM Advocate 2016 SCCR 360 and L v HM Advocate 2016 SCCR 365.  In each of these cases attention had been drawn in the course of jury directions to the relevant gap in time.  That, it was submitted, is the practice which should be followed in every case where the lapse of time was “significant”.  There was a duty on a trial judge to bring the issue of the intervals of time to the attention of the jury and to point out that the time gap might be such as to make the Moorov doctrine inapplicable.  To the extent that the Jury Manual suggested otherwise, it was wrong.

[11]      It was submitted that the misdirection by omission had been compounded by the sheriff’s remark to the jury that the defence “has not suggested that the circumstances of each incident are so dissimilar that the rule can’t be applied”.  The defence had not suggested that there was insufficient evidence in law to allow the application of the Moorov doctrine but those now acting for the appellant understood the defence position at trial to
have been that the circumstances of the offences were dissimilar and that the jury ought not to apply the doctrine.  It was submitted that the sheriff’s comments had erroneously conveyed the impression that the defence had accepted that the Moorov doctrine applied on the facts of the case.

 

Submissions for the Crown
[12]      The advocate depute began by addressing the question of what had been the defence position at trial as to the applicability of the Moorov doctrine.  He advised the court that his information, based on a report by the procurator fiscal depute who had conducted the trial, was that what appeared in the sheriff’s report was accurate; counsel who had appeared for the appellant at trial had not sought to persuade the jury that, even were the complainers to be believed, the Moorov doctrine was nevertheless not applicable.

[13]      The advocate depute’s further submissions were shortly stated. In the cases which had been referred to, AK v HM Advocate, G v HM Advocate, and L v HM Advocate, the issue of the length of the lapse of time between instances of alleged offending had been raised in submissions of no case to answer and, at least in the cases of AK and L but apparently also in G, then returned to in parties’ speeches to the jury.  In that sense, length of lapse of time was a live issue. In cases where it is a live issue, specific comment on lapse of time may well be required in the directions given to the jury.  However where that is not so, the standard directions will usually suffice.  Indeed, drawing attention to an element which is weak or in some way problematic might be adverse to the interests of the accused in that it might lead or require the sheriff to reinforce some other element relied on by the Crown as particularly compelling and therefore providing the necessary balance to the element which was less compelling.  The matter is summed up by the Lord Justice Clerk in paragraph [33] of L and paragraph [19] of G.  This was not an exceptional case. In giving his charge the sheriff had followed the structure adopted by the trial judge in L.  He had reminded the jury of the need to take care.  In the circumstances of the case that was enough.  However, should the court consider that further directions should have been given, their omission could not be said to have given rise to a miscarriage of justice.  The jury had clearly understood the principles upon which mutual corroboration is based as was demonstrated by their discerning verdict;  they had acquitted the appellant in respect of charge 4 where the circumstances of the alleged conduct differed from what was alleged in charges 1, 2 and 5.

 

Decision
[14]      As Ms Ogg confirmed, the ground of appeal in respect of which leave to appeal was granted is finely focused.  It has two aspects.  The first aspect depends on the proposition that the sheriff was under a duty to bring the jury’s attention to the temporal gaps between the charges because the gaps were significant and to point out that they had the potential to undermine the operation of the Moorov doctrine.  It is said that the sheriff failed in that duty. The second aspect of the ground of appeal is that the sheriff, towards the end of his charge, wrongly gave the impression that the defence accepted that the Moorov doctrine did apply on the facts spoken to by the witnesses.

[15]      Ms Ogg accepted that the sheriff gave the standard jury directions (more or less word for word) on mutual corroboration as they are to be found set out in the Jury Manual at chapter 11.2.  These included a direction on the need for the offences to be linked by the time of their commission.  Further, the jury were specifically directed that mutual corroboration was not applicable if all that was shown was that the appellant had a general disposition to commit this type of offence.  The jury were further warned that they required to apply the rule with caution.

[16]      In considering the effect of what was said to the jury, it is to be borne in mind that the standard directions are the product of the experience of many judges and many sheriffs over many trials.  They are given in the expectation, again based on experience, that juries composed of reasonably intelligent people who have heard the evidence and have been addressed on that evidence will understand the concept of mutual corroboration when it is explained to them in terms of the standard directions.  That said, we do not suggest that a slavish and unthinking repetition of what is suggested in the Jury Manual as merely a possible form of directions will necessarily be sufficient to alert the jury as to how they should go about their decision-making in every case.  Effective jury directions must engage with the specifics of the particular trial and the particular issues that arise for decision.  That means that they must address, in an appropriately balanced way, the case as it is presented by the Crown and the case as it is presented by the defence.  An example of a trial judge doing this can be seen in the extract quoted in AK v HM Advocate at paragraph [7] to which Ms Ogg drew our attention:

“The evidence given by [M] in relation to charge (1) and by [D] in relation to charge (4) would be capable, taken together, of providing corroboration for each of charges (1) and (4). Again, you would need to look at this evidence as a whole, you would take account of any dissimilarities. But of course, in this example, the issue of lapse of time would be an even more important consideration. The time lapse between the end of the conduct described in charge (1) and the date of the conduct described in charge (4) is a period of 13 years and a few months. Now, barring the presence of some extraordinary feature it would not be possible to think of a time lapse of that order as being consistent with a single course of conduct. But the Crown's contention is that such an extraordinary feature is present in the circumstances of this case and they say that you can see that extraordinary feature in a particular combination of circumstances.”

 

The trial judge then went on to remind the jury how the Crown had elaborated its contention but also to emphasise that before the jury could even consider using the doctrine of mutual corroboration they had to have accepted the evidence as to the factual premise upon which the Crown contention was based.

[17]      Similarly, in L the trial judge’s directions (a transcript of which had been made available to us) included this:

“Putting all these factors together the inference should be drawn, according to the advocate depute, that the three charges amount to a single course of systematic criminality. Now, in broad outline that is the Crown case which you will have to consider. [Counsel for the defence], for his part, strongly challenged this approach. He drew attention, in particular, to the long time-gap between the conduct alleged in charge 3 and the other two charges. How could there be said to have been a systematic course of criminality when there was so much time during which nothing criminal was happening, [counsel] asked.”

 

[18]      In G, again as appears from a transcript with which we have been provided, the sheriff gave quite lengthy directions on mutual corroboration, which he then expanded upon in response to a request by the jury that he repeat his directions on the application of the Moorov doctrine.  The sheriff’s directions included the following:

“…you can find mutual corroboration, but you do have to have at least two witnesses that you believe in relation to these charges. If you find yourself in that situation …the question in each case is whether or not all of the circumstances, including any time gap, are such that [it] is open to you… properly to infer that there was a course of conduct which linked the incidents and so provides the basis for the [doctrine of mutual corroboration] to be applied. …It is not enough if all that is shown is [the accused] had a general disposition to commit this kind of offence. And the Crown have said various things …and [the solicitor for the accused] has said various things. What I say to you is this; it is a matter for you. It can be a difficult matter to judge whether anything the Crown have said convinces you that any of these tests were made out. It is up to you, just because they have been mentioned to you, you do not have to accept them, and equally the same goes for the defence situation. …if you find that there is a long gap of time that is not decisive, but it is something that you have to weigh in the balance in deciding whether there is a single course of conduct. …you need to look at …time. …time is important, and sometimes, and in some cases it will be vital and perhaps even the most decisive in you determining whether there was a course of conduct. You see, a course involves some continuity, that idea of persistence, repetition. Acts which are isolated by a long period of time do not make a course of conduct… a great deal of time could separate incidents and might speak against there being a single course of criminal conduct.”

 

[19]      Ms Ogg’s approach in support of the first aspect of the ground of appeal was to refer to the trial judge’s jury directions, as reproduced in AK at paragraph [7] and approved as clear and accurate by the Lord Justice Clerk (Gill) at paragraph [17];  and what was said by the Appeal Court in L at paragraph [33] and G at para [19] in relation to the respective directions in these cases, and to submit that in each of these cases the Appeal Court had endorsed the need for a trial judge or sheriff in a case where the time-gap was “substantial” to draw attention to the time-gap and to direct the jury that because it was long that might point them away from the possibility of mutual corroboration.

[20]      There are a number of difficulties with Ms Ogg’s argument.  First, it is accepted by Ms Ogg that her proposition that where the time-gap in a case depending on mutual corroboration is “substantial” there is a general duty on the trial judge or sheriff to draw the length of the interval to the attention of the jury and to point out to them that this has the potential “to undermine the operation of the Moorov doctrine”, has never been expressly adopted by the Appeal Court.  Second, in our opinion what is said at paragraph [33] of the Opinion in L is to contrary effect.  At paragraph [33] the Lord Justice Clerk explained: 

“The remaining issue relates to the question whether the trial judge required to identify for the jury the specific elements of the evidence which might make the case sufficiently compelling. We are satisfied that that is not required. It is the function of the judge to assess whether there is a sufficiency of evidence.  It is for the jury to say whether looking at the evidence as a whole, they find it sufficiently compelling to entitle them to conclude that the incidents are all component parts in a course of conduct.”

 

If the trial judge is not required to identify the elements which might make the case particularly compelling, parity of reasoning would suggest that the trial judge is not required to identify the elements which might make the case less compelling.  In either case were the trial judge to do so, he would, as the Lord Justice Clerk explains, be entering into what is properly the function of the jury.  Third, there is the problem of identifying what is meant by a “substantial” time‑gap.  As we understood it, Ms Ogg was making what she saw as a point of principle of general application but despite that she was unable to suggest any bright line discriminating between intervals which, on the one hand, are substantial and those which, on the other hand, are not.  The best that she could offer was to say that it all depended on the circumstances.  The problem can be seen to be acute when consideration is given to the point made by Ms Ogg in the appellant’s case and argument that the Appeal Court has declined to lay down any maximum interval between two offences for the purposes of the application of the Moorov doctrine:  Reilly at paragraph [19].  Fourth, approval or commendation of some feature of a particular jury charge by the Appeal Court does not necessarily mean that were that feature to be omitted it would amount to a misdirection.  Fifth (and we see this as of particular importance) the use to which Ms Ogg sought to put what was said by the Appeal Court in AK, L and G ignored the context of the trials in these cases and the apparently different context of the trial in the present case.  This brings us back to the observation that effective jury directions must engage with the specifics of the particular trial and the particular issues that arise for decision.

[21]      At paragraph 4.10 of the appellant’s case and argument there is this:

“The defence did not suggest that there was insufficient in law to allow the application of the doctrine but their position was that the circumstances were dissimilar and the jury ought not to apply the doctrine.”

 

That is contradicted by what the sheriff states at paragraph 25 of his report, responding to the Note of Appeal:

“…it is suggested that I have compounded my errors by telling the jury that the defence had not suggested that the circumstances of each incident were so dissimilar that the rule could not be applied. I did make that comment. I made that comment because it was factually accurate.”

 

When the court questioned Ms Ogg about this she frankly disclosed that the sole basis for what appeared in the sentence quoted from the case and argument was what she and those instructing her had been told by the appellant.  There had been a change of agency since the trial and no one had thought to question those who had represented the appellant at trial as to precisely how the issue of mutual corroboration had been approached or to obtain a transcript of the speeches made to the jury.  As we have already noted, on the information available to him, the advocate depute advised that the sheriff’s report was accurate;  counsel who had appeared for the appellant at trial had not sought to persuade the jury that the Moorov doctrine was not potentially applicable.  Ms Ogg accepted that in the circumstances she could not properly maintain that the position was other than that reported by the sheriff.

[22]      The advocate depute submitted that in cases where it is a live issue specific comment on lapse of time may well be required in the directions given to the jury but where that is not so the standard directions will usually suffice.  We agree.  In each of the cases to which Ms Ogg referred, a submission of no case to answer had been made on the basis of lapse of time between the relevant charges.  In AK the period had been more than 13 years; in L 6 and 7 years;  and in G 11 years.  These can be regarded as substantial intervals but, as is apparent from the passages that we have quoted from the respective charges, in addition time lapse had specifically been put in issue and had been the subject of submission, not only by way of a motion of no case to answer but also in parties’ jury speeches (as we read the transcript, this is so in G as well as AK and L).  Accordingly, in reminding the jury of what were the Crown and the defence cases it is unsurprising that the respective trial judges and the sheriff gave the directions that they did.  That is the context in which Lord Justice Clerk Gill commended the trial judge’s charge as clear and accurate in AK and Lord Justice Clerk Dorrian referred to the jury’s attention being specifically draw to the gap in time in L (paragraph [33]) and the jury being left in no doubt that a “great deal of time can separate incidents and might speak against there being a single course of criminal conduct” in G (paragraph [19]).

[23]      The present case is different, as Ms Ogg came to accept.  Parties had not made a particular issue of gap in time.  The directions on Moorov were otherwise entirely unexceptional and unexceptionable.  It was made clear to the jury that they were looking for evidence which allowed them to conclude that the incidents were bound together as parts of a single course of criminal conduct systematically pursued by the accused.  They were advised that it was the underlying similarity of the conduct which they had to consider.  They were told that if they believed the witnesses, they then had to decide whether, by reason of the character, circumstances, place of commission and time of each charge, the crimes were so closely linked that they could infer the accused was pursuing a single course of crime.  They were advised that the doctrine required to be applied with caution and that a general disposition was not sufficient.  In the circumstances of a case where the applicability of mutual corroboration was not specifically put in issue by reference to one of the relevant elements, we do not consider that anything more was required.

[24]      The further complaint is made that the sheriff compounded what is said to have been a misdirection by omission by saying that “the defence ... has not suggested that the circumstances of each incident are so dissimilar that the rule cannot be applied”, it being suggested that this comment conveyed the impression that the defence conceded that the Moorov doctrine applied on the facts of the case.  As we have already discussed, the sheriff reports that this was a factually accurate statement: counsel for the appellant had not made a submission of no case to answer at the close of the Crown case and had not otherwise suggested that the circumstances of each incident were so dissimilar that the Moorov doctrine could not be applied.  Rather, counsel for the appellant had asked the jury not to apply the doctrine, submitting that the evidence lacked detail and, in particular, that the complainers lacked credibility and reliability.  Again, in saying what he did the sheriff was following the structure which is suggested by the Jury Manual, by reminding the jury of what was the defence position.  We do not consider that the sheriff can properly be criticised for so doing in what were entirely accurate terms.  It is important to note that the sheriff immediately followed this section of his charge by stating that it was the role of the jury themselves to decide whether or not to apply the doctrine of mutual corroboration.  He concluded:

“Well, I can tell you that in this case there is enough evidence in law that the crimes alleged are sufficiently close in time, character, place of commission and circumstance for the rule to apply.  But you have to decide if that evidence is credible and reliable; if the necessary link in time, character and circumstance has been established; and if the rule should be applied.  These are decisions for you.  If you do apply it, then you could convict the accused of these charges, or of such of them where you felt the matter was adequately corroborated by another, or by others”. 

 

[25]      It is accordingly our opinion that in the present case, the trial judge’s directions on the operation of the doctrine of mutual corroboration – read as a whole – were entirely adequate. The appeal must be refused.