| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| | [2013] HCJAC 161 |
Lord Eassie Lady Clark of Calton Lord Wheatley | Appeal No: XC480/11 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL AGAINST CONVICTION by MALCOLM JOHN WEBSTER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Allan QC; Borthwick; Ms Forest; Drummond Miller
Respondent: Ogg QC AD, Ms Barron; Crown Agent
13 December 2013
Introduction
[1] On 19 May 2011 at a sitting of the High Court of Justiciary in Glasgow the appellant was convicted after trial of a number of charges involving fraud, murder, attempted murder and wilful fire-raising. An abbreviated and annotated copy of the charges libelled in the indictment, as amended, is contained in a schedule to this opinion. The appellant was convicted of:-
(a) The crimes libelled in subhead (ix) and subheads (xii) to (xix) inclusive of charge 1 and of charge 1 as a whole;
(b) Charge 2;
(c) The crimes libelled in subheads (ii),(iv),(v), (vi), (xi),(xiii) and (xiv) of charge 3 and of charge 3 as a whole; and
(d) The crimes libelled in charges 4 to 7 inclusive.
The charges of murder and attempted murder (Charge 1(xi) and Charge 3(ii)
& (xiv))
[2] Charge 1 ('the Morris scheme') alleged, in summary, that the appellant had formed a fraudulent scheme to obtain insurance monies payable to him on the death of his wife, Claire Morris, and in pursuance of such scheme he had, in addition to other actions, some criminal in themselves, murdered her on 28 May 1994 (charge 1 (ix)).
[3] Charge 3 ("the Drumm scheme") alleged that the appellant had formed a fraudulent scheme to obtain insurance monies payable to him on the death of his second wife, Felicity Drumm, and in pursuance of that scheme he had, inter alia, attempted to murder her by two different means. Charge 3(ii) was a charge of attempted murder by systematically drugging Felicity Drumm, in Aberdeenshire, New Zealand and elsewhere, between July 1996 and February 1999. Charge 3(xiv) was a charge of attempted murder committed in New Zealand by causing a car which he was driving and in which she was a passenger on 12 February 1999 to be involved in an accident.
The charges of wilful fire-raising (Charge 3(xi) & (xiii), and Charge 4)
[4] The appellant was also convicted, in pursuance of the Drumm scheme, of having set fire to paper in a house at Norwood Road, Auckland, New Zealand (charge 3(xi)); and of having set fire to an armchair in the house of Felicity Drumm's parents at Eversleigh Road, Auckland (charge 3(xiii)). He was convicted also of what might be termed a "stand-alone" charge of having set fire to "furniture" in the house which he and Felicity Drumm occupied at Easter Letter Cottage in Aberdeenshire (charge 4).
[5] We shall refer to these as the charges relating to the 'Norwood fire', the 'Eversleigh fire' and the 'Easter Letter fire' respectively, and collectively as the 'fire-raising charges'.
The other charges
[6] As already indicated, there were four other charges upon which the appellant was convicted.
[7] The appellant was convicted of fraudulently continuing to claim a widower's pension in respect of Claire Morris after having remarried with Felicity Drumm (charge 2). He was convicted of making a claim on his insurance for a dishonestly exaggerated sum following the destruction of articles stored in a warehouse (charge 5). He was also convicted of having defrauded Felicity Drumm of sums of money by inter alia, transferring money to an account he held in Aberdeen (charge 6).
[8] Finally, the appellant was convicted of having formed a third fraudulent scheme concerning Simone Banerjee (charge 7). The scheme's end was said to be to "enter a bigamous marriage ... and thereby gain access to her estate". The appellant had secured Simone Banerjee's engagement to marry on the false basis that he was terminally ill, and free to marry her. He was then still married to Felicity Drumm. He had caused Simone Banerjee to lend him money and make a will in his favour.
An overview of the Crown case
The Morris scheme (Charge 1)
[9] In very brief summary, the Crown case was that the appellant had carefully planned the murder of Claire Morris over a lengthy period of time. In May 1992, the appellant persuaded her to make a will in his favour and between January 1993 and January 1994 he had induced his wife to take out various life assurance policies payable on her death. For several months before her death the appellant had given sedative drugs to his wife without her knowledge. In its ultimate presentation to the jury, it was also contended that there was evidence that the appellant had reconnoitred the eventual locus of the murder eleven days beforehand.
[10] The Crown sought to prove that on 27 May 1994 the appellant drugged Claire Morris so that she became unconscious. He then placed her in the front passenger seat of his car, reclining it to such an extent that she could not be seen from outside. On that evening, with his wife thus placed in the car, the appellant drove along the road between Auchenvenie and Tarves. He had placed three cans of petrol in the car. He simulated a car accident by deliberately steering his car off the carriageway and into a field, in which he had been some days before, and causing the car to collide at low speed with a tree. He then caused a fire to start in the car by means unknown. He had initially pretended to those who came upon the scene that there was no-one else in the car. Claire Morris died in consequence of the fire in the vehicle.
The Drumm scheme (Charge 3)
[11] The Crown case respecting this charge was, in very brief summary, that again the appellant had planned the murder of his wife, namely his second wife, Felicity Drumm, over a long period. He repeatedly sedated her without her knowledge, causing her to suffer episodes of drowsiness or unconsciousness from the beginning of their marriage and thereby attempted to murder her. Between June 1997 and December 1998 the appellant arranged for the issue of various insurance policies in Scotland and New Zealand payable on her death. On some of these applications the appellant forged his wife's signature. In January 1998 he caused Felicity Drumm to write a will in his favour.
[12] In around December 1998, the couple contracted to purchase a property in Norwood Road in Auckland. Felicity Drumm did not know it would be impossible for the couple to complete settlement due to a lack of money. This was caused partly by the appellant's having siphoned off money from their joint bank accounts, into which Felicity Drumm had deposited her own money. The appellant's deceit over the possibility of purchasing the Norwood property and his appropriations formed the gravamen of charge 6. An important element of the Crown case was that if it were necessary to complete the purchase of the house in Norwood Road the shortage of funds would become apparent, bringing the appellant's defalcation to light.
[13] On 12 February 1999, the appellant drove with his wife in the car, avowedly on a journey to their bank and their solicitors to complete settlement. He had placed petrol cans in the boot. He had also put scrunched up newspaper and a lighter in the car. The Crown case was that the appellant pretended to Felicity Drumm to have problems with the steering of the vehicle. At one point he veered at high speed across the carriageway, driving straight at a vertical pole by the roadway, in a manner that would cause it to be struck by the passenger side of the vehicle. His wife averted this by grabbing at the steering wheel. After coming to a stop, the appellant went to the boot of his car and screamed to her to stay inside. The police then came on the scene. The Crown case was that the appellant's conduct amounted to an attempt to take Felicity Drumm's life.
The fire-raising charges
The Easter Letter fire (Charge 4)
[14] The Easter Letter fire took place on 16 September 1997 by means unknown on furniture in the marital home of the appellant and Felicity Drumm in Aberdeenshire. In contrast to the other fire-raising charges, this was not contended to be part of a fraudulent scheme and no motive was libelled.
The Norwood fire (Charge 3(xi)) and Eversleigh fire (Charge 3(xiii))
[15] Parties agreed by joint minute that the Norwood fire took place sometime between 21 January and 27 January 1999 and was deliberately set. Petrol and newspaper had been stuffed through the letter box of the front door of the house and set alight, but the fire did not take to the fabric of the building.
[16] The Eversleigh fire took place at night on 10 February 1999. The appellant was sharing a bedroom with Felicity Drumm. Their infant son and her parents were also in the house. The Crown case was that the appellant had risen at night, ostensibly to go to the toilet whereas in fact he went into the living room where he set fire to a chair in that room before returning to bed. The fire did not spread beyond the armchair.
[17] The trial advocate depute invited the jury to find that the purpose of both fires was to avoid or delay settlement of the purchase of the house in Norwood Road. This, he contended, would have prevented the discovery of the shortage of funds resulting from the appellant's defalcation libelled in charge 6. The intent respectively was, first, to destroy the subjects of purchase, and secondly, to manufacture a domestic calamity that would provide an excuse to postpone settlement.
The scope of the appeal - the issues in the grounds of appeal
[18] Counsel for the appellant advanced argument in respect of six grounds of appeal. These grounds may be conveniently summarised under four headings or issues:
The first issue: the trial judge was wrong to permit the Crown to add a late witness, Mr Hardie, who gave evidence of the appellant's alleged reconnaissance of the locus eleven days before the death of Claire Morris (Ground 1).
The second issue: there was insufficient evidence for conviction on charge 1 (the Morris scheme) as the expert evidence on the cause of the fire did not exclude the possibility of accidental ignition (Ground 3). Separately, the trial judge ought to have directed the jury that before convicting of charge 1 they had to exclude the possibility of accident "on the available forensic evidence" (Ground 4).
The third issue: there was insufficient evidence to allow conviction of the appellant of the Norwood fire (charge 3(xi)) and Easter Letter fire (charge 4). The Crown had sought conviction on the Norwood fire charge on the basis of having proved that the appellant was the perpetrator of the Eversleigh fire and then applying what is sometimes called the Howden doctrine (infra). But the Norwood and Eversleigh fires lacked any such similarity as would ever allow that approach to apply (Ground 5). There was insufficient evidence that the Easter Letter fire was deliberately set. In any event, there was insufficient evidence that the appellant was the perpetrator. The judge had also been wrong to direct the jury that they could apply the Moorov doctrine between the Eversleigh and Easter Letter fires (Ground 6).
The fourth issue: the trial judge had been wrong to direct the jury that they could apply the Moorov doctrine between the charge of murder of Claire Morris (charge 1(ix)) and of attempted murder of Felicity Drumm by causing a car crash (charge 3(xiv)). This issue is raised by Ground 8.
The convictions brought under review
[19] Given the relatively complicated nature of the indictment, the terms of the verdict, and the particular grounds of appeal upon which argument was presented, it is convenient to note the particular charges to which the grounds of appeal are respectively directed. The first and second issues (Grounds 1, 3 and 4) focus on the validity of the conviction of the appellant of the murder of his first wife, Claire Morris. Since the Crown case under charge 1 - the Morris scheme - is essentially predicated on proof that the appellant murdered Claire Morris and would fail were the jury to have considered that her death had not been proved, to the requisite standard, to have been other than accidental, the appeal advanced under those grounds thus proceeds against the appellant's conviction for the Morris scheme (charge 1). The fourth issue - namely Ground 8, that is to say, the Moorov directions respecting the murder of Claire Morris and the attempted murder, in an allegedly similarly simulated road accident, of Felicity Drumm - also extends to the validity of the conviction of the murder of Claire Morris. It further extends to the conviction of the appellant of the attempted murder of Felicity Drumm by means of that simulated road accident in New Zealand (charge 3(xiv)). But none of those issues and their associated grounds of appeal place in question the wider conviction of the appellant for having formed the Drumm scheme, which included his conviction of the charge of the attempted murder of Felicity Drumm by drugging her (charge 3(xiv)).
[20] The matters raised under the third issue - grounds of appeal 5 and 6 - respecting the fire raising charges are of much more limited extent and put in question only the convictions under sub-branch (xi) of charge 3 and the charge of setting fire to furniture in the living room of Easter Letter Cottage, which is the sole subject of charge 4.
[21] No challenge is made to the convictions of fraudulently claiming a widower's pension (charge 2); of fraudulently exaggerating an insurance claim (charge 5); of fraudulently obtaining Felicity Drumm's money (charge 6); and of the Banerjee scheme (charge 7).
[22] With that general introduction to and analysis of the scope of the appeal, we turn to the particular issues which we identify above in paragraph [18] as being raised by the grounds of appeal.
The first issue - Admission of Mr Hardie's evidence (Ground 1)
[23] The trial began on 1 February 2011. On 28 February 2011, the advocate depute informed the court that two members of the public had approached the police with information regarding the case. The trial diet was continued from time to time to allow enquiries to be made by both parties. On 7 March 2011, the trial judge heard an application by the prosecutor to lead one of those individuals, Mr Hardie, as an additional witness in terms of section 268 of the Criminal Procedure (Scotland) Act 1995 - "the 1995 Act".
[24] That section, so far as material, provides:
"268 ― Additional evidence
(1) Subject to subsection (2) below, the judge may, on a motion of the prosecutor or the accused made-
(a) in proceedings on indictment, at any time before the commencement of the speeches to the jury;
...
permit him to lead additional evidence.
(2) Permission shall only be granted under subsection (1) above where the judge-
(a) considers that the additional evidence is prima facie material; and
(b) accepts that at the commencement of the trial either-
(i) the additional evidence was not available and could not reasonably have been made available; or
(ii) the materiality of such additional evidence could not reasonably have been foreseen by the party.
..."
[25] The information - essentially undisputed - presented to the trial judge respecting Mr Hardie was that in 1994 he was a farm manager with responsibility for the farm which included the field in which there had occurred the incident involving the car in which Claire Morris died. Some eleven days before that event Mr Hardie had seen a man in the field in question, whom he suspected, and assumed, was a vetinary official from the Department of Agriculture who was there clandestinely, since Mr Hardie was aware that the farm was under investigation by the Department at that time. He told the individual to leave. Mr Hardie thought nothing more at all of the incident until he saw broadcast in the media during the currency of the trial photographs of the appellant, both as he was presently and many years earlier in 1994. Having seen those photographs he concluded that the appellant was, or may have been, the man whom he had seen in the field and whom he had then assumed to be a vetinary official from the Department.
[26] The trial judge was advised that the initial investigation of the death of Claire Morris in 1994 had been pursued on the basis that the car crash was a standard road traffic accident. The appellant had said he swerved to avoid a motorcyclist, whom the police attempted to trace. It was only as a result of the appellant's coming under suspicion of having committed various crimes against Felicity Drumm in New Zealand that the car crash in Aberdeenshire was reinvestigated. In 2008, in the course of that reinvestigation, the police had sent letters to all farms and homes within five miles of the locus enquiring whether anyone might have relevant information regarding the incident. By that time, however, Mr Hardie had moved from the area. The owner of the farm, Mr Simmers, was a Crown witness. He had been Mr Hardie's employer at the time of the incident.
[27] In opposing the application, counsel for the defence did not dispute that the evidence which it was understood Mr Hardie might give was prima facie material. He submitted firstly that the Crown had not shown that the evidence could not reasonably have been made available prior to the trial. In brief summary, in 1994, albeit concerned only with a road traffic accident, the investigation required a consideration of the layout of the fencing and enquiry of Mr Simmers might have been made respecting the layout of the locus; that should have led to his referring the police to Mr Hardie as the farm manager. When matters were reinvestigated as a potential homicide in 2008, that investigation should similarly have provoked close enquiry of Mr Simmers, which would have led to Mr Hardie. Secondly, it would in any event be unfair to admit the evidence. On the view that there was no issue of eyewitness identification evidence in the case, the defence had not taken issue with the contemporaneous diffusion in the media of photographs of the accused. There had been no identification parade procedure. Dock identification on that basis could not be satisfactorily corrected by directions to the jury.
[28] The trial judge granted the application. He observed that when the police were originally investigating what they thought was an accident in 1994, there was no reason to enquire whether anyone had been at the scene in the days before hand. The police focus was on tracing the motorcyclist to whom the appellant had referred in his explanation of the accident. In any event, even if Mr Hardie had been approached, his evidence would have appeared to be completely irrelevant. All that he could have said was that some days before the accident he had seen someone whom he thought was a Ministry of Agriculture vet in the field in pursuit of an investigation of the affairs of the farm. The efforts made in 2008, when a murder investigation was being pursued, were all that could reasonably be done. Asking Mr Simmers whether anyone had been seen at the locus in the days before the incident would not have been productive. Mr Hardie had left his employ around 9 years earlier, and Mr Simmers had around 350 staff at the relevant time. It was doubtful that Mr Simmers would have remembered Mr Hardie informing him of the incident with the "vet", assuming that he had been told about this. Had Mr Simmers relayed the account to the police, there was no reason for the police, even in 2008, to connect it to the car crash. Certainly Mr Hardie did not connect the two incidents until seeing photographs of the appellant.
[29] In his submissions to this court, counsel for the appellant contended that the trial judge was in error in finding that (apart from the conceded test of materiality) the requirements of section 268(2) of the 1995 Act were met. Although the trial judge had correctly identified the relevant terms of the provision, the outcome which the trial judge had reached could not be reconciled with the application of the correct test. In Salisbury-Hughes v HM Advocate 1987 SCCR 38, the court had applied a stringent test to the reception of fresh evidence in an appeal. The test for its admission current at that time was to be found in the Criminal Procedure (Scotland) Act 1975, section 228(2). This used the same formula as section 268(2)(a) of the 1995 Act in that it required the applicant to establish that the evidence was "not available and could not reasonably have been made available". Whatever excuse there might be for not contacting Mr Hardie in 1994, by 2008 matters had moved on. The evidence could thus reasonably have been made available to the trial court.
[30] It was further submitted that, even if the requirements of section 228(2) were met, it was still for the court to determine, in its discretion, whether to grant the application. The question of prejudice to the defence had to be considered. The leading of the evidence was plainly to the prejudice of the appellant's defence. Mr Hardie would give evidence only after having been prompted to do so by the widespread publication in the media of photographs of the appellant. His identification evidence would be a dock identification, untested by any identification parade procedure.
[31] Having considered the written and oral submissions on behalf of the appellant, we have reached the view that the attack on the trial judge's decision that the proposed evidence of Mr Hardie was not reasonably available to the Crown prior to the commencement of the trial is not well founded. Much of the argument for the appellant on this particular branch of this issue in the appeal was focussed on the proposition that what was said in Salisbury-Hughes v HM Advocate indicated the existence of a stringent test, the stringency of which, as opposed to the test itself, the trial judge had overlooked. We have difficulty in reading what was said by the Lord Justice Clerk in that case as adding any gloss of stringency to the words of the statute. But even if the test imposed by section 228(2) to the effect that the proposed additional evidence should not have been reasonably available to the party proposing to adduce the additional evidence[1] is properly regarded as a high or stringent test, we consider that in the circumstances of this case such a test was met. At the time of the initial investigation in 1994, the incident was assumed to be an ordinary, albeit sadly fatal, road traffic accident. A primary line of inquiry was the appellant's assertion that he had been constrained to swerve off the road into the field by the actions of an oncoming motorcyclist. Whether the fence had previously been in a damaged condition prior to the accident was at best a peripheral - or confirmatory - matter. Since the owner of the farm had answered the inquiries made of him in that respect, there was simply no need for investigators to pursue matters further.
[32] By 2008, when the underlying assumption of a simple road accident is in question and under investigation, the contention for the appellant is that the police investigation should have involved their ascertaining from Mr Simmers the identity of the employees who would have been in his employment some 9 years previously and would have been involved with the farm in question. Had that been done, it might have led the investigators to Mr Hardie; and Mr Hardie might have recollected, and then might have viewed as relevant, his encounter with the person whom he had thought to be an official from the department for agriculture.
[33] While Mr Allan advanced that contention with such force as could be mustered, the tenuous nature of the links in the argument demonstrates its incompatibility with the notion of the proposed evidence having been reasonably available prior to the trial. There was no material available to the investigating or prosecuting authorities suggesting any preliminary reconnaissance and hence any call to seek out witnesses of the carrying out of such an exercise. Put shortly, Mr Hardie's emergence as a potentially material witness came to all engaged in the trial as something wholly unexpected. It was, of course, handled wholly responsibly by all involved. But that emergence was based on the publication of photographs of the appellant in the media in the course of the trial. In other words, it was only that publication which made the link, in the subjective view of the witness. We do not consider that from that sudden realisation by the witness one can recreate retrospectively a logical, hypothetical train of investigative steps which should have led to the evidence of Mr Hardie.
[34] The assessment of prejudice was a matter of assessment for the trial judge when he came to consider whether he should exercise his discretion to allow the additional evidence to be led. We have come to the view that his assessment is not open to successful challenge. The proposed additional evidence was accepted to be material. The nature of additional evidence is that it will almost always be prejudicial to the other party in the sense of being adverse to the prospects of an outcome favourable to that party. Being prejudicial in that sense is however not a good ground of objection. Since the defence were accorded such time as they required to investigate matters, we consider that there is force in the advocate depute's observation that the defence were essentially in no worse position than if Mr Hardie had come forward before the jury was sworn, or in time for inclusion in the Crown's list of witnesses. While there had been no identification parade, in the particular, unusual circumstances in which Mr Hardie's evidence came to light it is difficult to see that holding such a parade would have served any useful function. While the publicity given to the trial and the publication of photographs of the appellant, and the lengthy passage of time since the claimed sighting of the appellant, were important factors in the assessment of the reliability of the proposed evidence, the trial judge was entitled to take the view that those factors were a matter for the jury after direction from him. In due course the judge dealt with those matters fully and carefully in his charge.
[35] Accordingly, the first ground of appeal must be rejected.
The second issue - excluding accident (Grounds 3 & 4)
[36] Counsel for the appellant submitted that there was insufficient evidence to establish the murder of Claire Morris since none of the scientific experts giving evidence as to the cause of fire could exclude accidental ignition. The libel that the appellant "by unknown means wilfully set fire to the motor vehicle" meant that the Crown did not offer to prove a particular mechanism by which the fire was started. But this did not relieve the Crown of the duty of excluding any non-intentional mechanism. The Crown had led evidence from Eric Jensen. He was the original forensic scientist who investigated the incident in 1994. He gave an account as to how such a fire might start following the collision without deliberate human intervention. Once that evidence was before the jury it was for the Crown to exclude that possibility. The highest that the evidence of the other experts came to was that, in their opinion, such an accidental fire was comparatively unlikely, or highly unlikely. It was not open to the jury to convict on the basis of evidence that went no further than what the relative probabilities were of deliberate and accidental cause (Ground 3). In any event, the jury should have been directed that the expert evidence had to positively exclude accident before they could convict (Ground 4).
[37] The stance taken by the Crown, both at the trial and in the appeal, was that, while of course the prosecution required to prove that the appellant had deliberately set fire to the car, the Crown did not seek to do so solely on the basis of expert evidence regarding the ignition of the fire. Rather, the jury were invited to draw the inference that the appellant wilfully set the fire from a combination of circumstances, including the following. There was evidence that the appellant had prepared for the killing of his wife for some time by drugging his wife and also by his reconnaissance of the locus of the car crash. The scientific evidence respecting the mechanics of the crash, was to the effect that the crash was a low-speed, deliberate collision and not the result of a sudden swerving manoeuvre, as the appellant had claimed to the police at the time. Thus the jury were invited to infer that the crash was staged. The appellant, on his own account, had three cans of petrol stored in the car. There was also the evidence of the conduct of the appellant immediately after the accident. There was evidence that he initially told those who came upon the scene that there was no-one else in the car and that he made no attempt to call for anyone's help in rescuing his wife. There was also evidence that he had exaggerated the extent of his injuries after the crash. He had given false explanations as to why he was driving there that night. The scientific evidence, which the advocate depute submitted was to the effect that an accidentally ignited fire was inherently unlikely, was merely an additional adminicle of circumstantial evidence. That chapter of scientific evidence was not crucial to establishing a case to answer. The jury were not confined to resort to that evidence when excluding the possibility of accident.
[38] It is, we think, appropriate first to give a brief synopsis of the relevant scientific witnesses' evidence on accidental ignition. At the time of his investigation in 1994 Mr Jensen considered that he could not exclude accidental ignition in the engine compartment (the evident seat of the fire) on the basis of a disruption of the fuel supply having arisen, with petrol evaporating in contact with a hot manifold and ignited by the continuance of the vehicle's electrical supply being switched on. His initial views were formed on the assumption that the fire had broken out more or less immediately on the impact of the vehicle with the tree with which it collided. There was however a body of lay witness evidence to the effect that the fire was not immediate. Some 15 to 20 minutes elapsed. On the assumption of a delay of that order, which was put to him by the trial advocate depute, Mr Jensen then, on our reading of the transcript, gave a response which he volunteered as being theoretical and not based on his experience. It was to the effect that if (i) in the initial impact damage had been sustained to the fuel supply to the engine resulting in the leak of petrol; (ii) the escaped or escaping petrol had evaporated to form a vapour of the requisite mix to be flammable; and (iii) there then occurred after the postulated interval of time an outbreak of fire, that might in theory be explained by some possible extraneous event, such as some movement of the damaged vehicle causing a spark between two electrically charged elements.
[38] The only other expert witness on this particular branch of the case was Mr Andrew Wade, whose evidence on this branch was also not cross-examined. Again put in very brief synopsis, having been referred in his evidence to various reports of fires having broken out in vehicles subject to a road traffic accident after a notable interval of time, usually as a result of third party intervention, Mr Wade also accepted the possibility of accidental ignition in such a situation. But he put it as being highly unlikely - "at the extreme of possibility".
[39] Accordingly, while, as scientists, the expert witnesses in question could understandably not exclude in scientific terms the ultimate possibility of an accidental ignition, there was nothing in their testimony offering any real, positive support for a contention that, given the interval before it erupted, this fire was accidental.
[40] But moreover we agree with the contention for the Crown that the prosecution's case was not, and should not be, dependent on the prosecutor's ability to establish a deliberate mechanism for the occurrence of the fire only by expert evidence from fire investigators. In our view, the trial judge was correct to conclude that the evidence of the various, wider circumstances to which we have referred constituted a sufficient case to answer.
[41] We turn to the related Ground 4, which, as framed in the note of appeal desiderates a direction by the trial judge to the jury that, before returning a guilty verdict, they must exclude the possibility of accident on "the available forensic evidence"; we take that to mean the scientific evidence as to the cause of ignition. But since the case against the appellant proceeded, not only on scientific evidence that accidental ignition was very unlikely, but also by invitation to the jury to infer from a number of other circumstances that fire had been deliberately set, the desiderated direction would in fact be a misdirection. It would improperly remove from the jury's consideration the other circumstantial evidence to which we have referred.
[42] In so far as this ground of appeal might also suggest that a direction using the ipsissima verba "exclude accident" was required, it is to be noted that at several points in his charge to the jury the trial judge stressed to the jury that before they could convict of the Morris murder they required to be satisfied, beyond reasonable doubt, that the fire had been set deliberately. The trial judge directed the jury variously that the Crown must prove beyond reasonable doubt that the fire "was deliberately caused by the accused"; that there was "deliberate external ignition"; and that the appellant "wilfully" set the fire. The jury were thus plainly and clearly directed to the effect that accident must be excluded.
[43] Accordingly, we conclude that the third and fourth grounds of appeal are not well founded.
The third issue - the fire-raising charges (Grounds 5 & 6)
[44] The third issue raises questions as to the proper application of the Moorov and Howden doctrines (Moorov v HM Advocate 1930 JC 68; Howden v HM Advocate 1994 SCCR 19). It is convenient to deal first with the ground of appeal (Ground 6) which concerns the application of the Moorov doctrine of mutual corroboration.
Ground 6 - Proving the Easter Letter fire by reference to the Eastleigh Fire
[45] The appellant's contentions in support of Ground 6 may be expressed in very brief summary as being that: (i) there was insufficient evidence that any crime was committed in respect of the Easter Letter fire, since there was no evidence that the fire had not occurred other than accidentally or that the furniture in question was other than the property of the appellant; and, (ii) there was, in any event, insufficient evidence that the appellant was the perpetrator. We find it convenient first to consider the latter contention.
[46] There was no direct evidence as to the identity of the perpetrator of the Easter Letter fire, assuming it to have been deliberately set. The Crown sought to prove the appellant to be the perpetrator by showing that the only persons who had the opportunity to set fire to the furniture consisted of the appellant and Felicity Drumm. The Crown then relied on Felicity Drumm's denial in her evidence that she might have started the fire to exclude her from that group of two persons. Her evidence was accordingly crucial to conviction. This was reflected in the trial judge's direction that Felicity Drumm's evidence formed a "centrality" for that charge and that unless her evidence was accepted as credible and reliable, an acquittal on charge 4 must follow.
[47] The Crown accepted that there was no evidence to corroborate Felicity Drumm's evidence without resort to the Moorov doctrine. The Crown sought to apply this by reference to the Eastleigh fire. The evidence on this latter charge again relied on the Crown showing that there was a limited number of persons who could have set the fire. In this case that number consisted of the appellant, his wife and her parents. Again, the Crown relied upon the denial in the evidence of Felicity Drumm and her parents that they had started the fire to exclude them from that number and thereby implicate the appellant. The evidence went a little further with the Eastleigh fire in that Felicity Drumm spoke to the appellant's having risen from bed and then having gone in the direction of the living room shortly before a fire was found there. We understand that, when he gave evidence, the appellant accepted that he had risen from bed to go to the toilet, but he denied having gone into the living room. The expert evidence, contained in a joint minute, from a fire officer was that the fire had been caused by the direct application of flame to the fabric of a sofa and would have lasted about three to five minutes before the alarm was raised and the fire extinguished. There was also evidence to the effect that cigarette lighters were found amongst the appellant's belongings in that home and that the appellant (and other members of the household) did not smoke. Nonetheless, the evidence of Felicity Drumm was crucial. As the trial judge put it, her evidence was "at the core of the Crown's case", and if it was not accepted, acquittal on charge 3(xiii) must follow.
[48] The advocate depute invited the jury to apply the Moorov doctrine to prove the Easter Letter fire by proof of the Eastleigh fire and this invitation was endorsed by the trial judge in his charge to the jury. In our view, the invitation was erroneous.
[49] Expressed in its essence, the Moorov doctrine of mutual corroboration is to this effect. Evidence implicating an accused as perpetrator of a charge given by a single acceptable witness (the primary witness) may be corroborated where other acceptable witnesses (the supporting witnesses) implicate the accused as perpetrator of further charges and those further charges are sufficiently linked by character, time, place, and circumstance to the first charge that it may be concluded that the charges form part of a single course of criminal conduct - so sufficiently linked by those factors - that the evidence of the several, but single witnesses contribute by their mutual testimonies to a corroborated proof of the single course of conduct. It is of course now settled that the doctrine may be applied as between but two charges, spoken to by two different witnesses respectively, provided that the necessary nexus is present.
[50] However, in the trial of the appellant the Crown sought to apply that doctrine (in a two charge situation) where the primary witness and the supporting witness were the same person, viz. Felicity Drumm.
[51] The fact that in its efforts to establish the Eastleigh charge the evidence of other witnesses was led by the Crown may have distracted those at the trial from a due appreciation that Felicity Drumm's evidence was crucial to conviction. Without her evidence there was not merely a lack of a corroborated case; there was no case at all. The evidence of Felicity Drumm's parents and of the recent ignition of the fire would no more identify the appellant as perpetrator than it would identify Felicity Drumm. Evidence (even if from multiple sources) which shows only that a crime was committed by one of two persons provides insufficient evidence against either person, even without a requirement for corroboration (R v Banfield [2013] EWCA Crim 1394). The evidence of the appellant, confirming that he rose from bed, his possible motive and the presence of cigarette lighters may just be enough to corroborate Felicity Drumm's account by tending to confirm facts that made that account more likely to be true (O'Hara v Central SMT 1941 SC 363, Lord President (Cooper) at p 379; Fox v HM Advocate 1998 JC 94, Lord Justice-General (Rodger) at pp 100-101). They would not, in themselves, have sufficed to incriminate the appellant.
[52] Accordingly, in essence, by invoking the Moorov concept of mutual corroboration, the Crown, with the endorsement of the trial judge, sought to corroborate the evidence of Felicity Drumm respecting the Easter Letter furniture fire by the evidence of Felicity Drumm respecting the Eastleigh furniture fire. As we understood him, the advocate depute recognised the evident problem facing the Crown. In our view this branch of the argument for the appellant under this ground of appeal succeeds; and it is thus unnecessary for us to deal with the first branch of that argument. The conviction for the Easter Letter fire (charge 4) must be quashed.
[53] Counsel for the appellant argued that proof of the sub-charge respecting the Eastleigh fire was also dependent on application of the Moorov doctrine and thus suffered the same flaw. Given that the evidence of Felicity Drumm was also central to this charge, there is at first sight a logical attraction in that contention. However, on reflexion we have come to the view that, as the advocate depute submitted, and as we have indicated above, there was just sufficient by way of other evidence to corroborate this charge. Accordingly we reject this ground of appeal so far as it may embrace the Eastleigh fire.
Ground 5 - Proving the Norwood fire by proof of the Eastleigh fire
[54] While the nature and the circumstances of the Norwood fire were not in dispute, there was no direct evidence from a witness implicating the appellant as the perpetrator.
[55] The Crown sought to rely on the Howden doctrine by ostensibly connecting the Eastleigh and Norwood fires. Proof that the appellant was perpetrator of the Eastleigh fire amounted to proof that he set the Norwood fire. The fires were said to be connected in terms of time, location and motive. The two fires were caused within a fortnight of each other in Auckland. They had a possible common motivation in terms of the appellant's attempts to conceal his defalcation.
[56] In delivering the Opinion of the Court in Howden v HM Advocate the Lord Justice General (Rodger) made clear that what has come to be referred to as the Howden doctrine is different from the Moorov doctrine, which is concerned with corroboration. In its essence it is this. Where an accused is proved by corroborated evidence to have committed crime A and the circumstances of crime B have such particular or peculiar features that the trier of fact is satisfied beyond reasonable doubt that the two crimes can only have been committed by the same person, the proved identification of the accused as the perpetrator of crime A may (essentially as a matter of logic) transfer to crime B.
[57] In the present case there were absent any circumstances attendant on the Eastleigh fire to the sofa and the Norwood fire, where ignited newspaper was pushed through the letter box of an unoccupied house, which could properly warrant a conclusion that whoever perpetrated the former must be the same person as perpetrated the latter. There was nothing which would link the fires other than the assertions of motive. Motive in itself does not establish guilt and a conviction based solely on evidence of motive could not be sustained; a possible motive for crime B cannot, in our view, establish that the same person must have committed that crime as well as crime A. In our view, the fact that the two fires, wholly different in their circumstances, occurred in the same city and within two weeks of each other cannot supply a basis for a conclusion that whoever caused the first must be the same person as caused the second.
[57] We therefore conclude that the Crown's invocation of Howden and its endorsement by the trial judge in his charge to the jury were erroneous. Accordingly the conviction for the Norwood fire must be quashed (charge 3(xi)).
The fourth issue - applying Moorov between the two car crashes (Ground 8)
[58] In his address to the jury, the advocate depute invited the jury to find that there was a corroborated case regarding the murder of Claire Morris (charge 1(ix)). Alternatively, or additionally, they were invited to find corroboration in the attempt to murder Felicity Drumm (charge 3(xiv)).
[59] The trial judge directed the jury consistently with this invitation, setting out the nature of the similarities relied upon by the Crown to establish the necessary connection between the two schemes. He also directed the jury in conventional terms that whilst it was open to them to apply the Moorov doctrine, it was ultimately a matter for their judgment whether the doctrine applied. It was not enough to show simply a general disposition to commit those kinds of offences.
[60] Since the prosecution case respecting in particular charge 1(ix) was an entirely circumstantial case, it was not apparent to members of the bench which witness' or witnesses' evidence was to be corroborated by the doctrine of mutual corroboration. The doctrine of mutual corroboration is normally one which may be applied where the direct oral evidence of one witness speaking to one charge is corroborated by such evidence from another witness or other witnesses speaking to another charge or charges. This concern was raised with counsel for the appellant at the first diet in the hearing of the appeal. Counsel for the appellant subsequently informed the court that he did not wish to question or examine whether in principle the Moorov might be applied in a wholly circumstantial case, such as the present. His complaint was a much more restricted one. We therefore approach this ground of appeal on the restricted, but considered, basis upon which it was argued.
[61] In its essence the argument advanced by counsel for the appellant was that there were such significant differences in circumstance between the charges of the murder of Claire Morris and the attempted murder of Felicity Drumm as to preclude the operation of the doctrine. In advancing that argument counsel stressed that there was an interval of at least four years between the two car crashes, which occurred on opposite sides of the world. Claire Morris, on the Crown case, had been drugged and placed in the car. Felicity Drumm, however, entered the car voluntarily and was fully conscious throughout. The crash in Aberdeenshire occurred at night on a remote road. The crash in Auckland occurred in daylight on a busy dual carriageway. Only the former crash was followed by a fire. Given those important differences, it was not open to the jury to apply the Moorov doctrine. While counsel for the appellant emphasised those differences, he acknowledged that there were some similar features; however, he submitted the differences were sufficiently great as to require the trial judge to direct the jury that the Moorov approach was not open to them. In any event, the trial judge had misdirected the jury by outlining in his charge only the similarities between the two incidents without noting the differences.
[62] The features of similarity are catalogued by the trial judge in his report. It is we think unnecessary to repeat that catalogue verbatim. By way of example, each charge involved the wife of the appellant; by way of background each wife had been drugged in the months prior to the offences; each offence involved a staged road accident with a low impact collision. On each occasion, the appellant had placed cans of petrol in the boot of the car.
[63] In any case in which Moorov is invoked, it is to be expected that the trier of fact is confronted with a mixture of similarities of time, place and circumstance which go to support the existence of the requisite nexus but also with differences which may arguably be supportive of the absence of the necessary singularity of criminal conduct to enable the doctrine of mutual corroboration to apply. It is, in our view, clear that the existence of such dissimilar features in the mix does not prevent the application of the doctrine. The weighing of those various features and the determination of whether in that ponderation the scales fall in the direction of the existence of the nexus or otherwise is a matter for the trier of fact - in this case the jury (Reynolds v H M Advocate 1995 JC 142). Nothing said by counsel for the appellant persuades us of his proposition that the differences which he invoked were so radical or significant that they outweighed the similarities that the assessment or ponderation of the competing considerations should have been withdrawn from the jury.
[64] We would add that while the trial judge lists a number of features of similarity in his report to this court, in his charge to the jury he refers only to the Crown submission summarising certain features of the background to and circumstances of the incident in which Claire Morris died and then reminding the jury that what the advocate depute had said to them was that a similar pattern could be seen in subhead (xiv) of charge 3. In his address to the jury counsel for the defence did not seek to highlight or stress any differences.
[65] In these circumstances we consider that the submission that the trial judge misdirected the jury is not well founded and that Ground 8 falls to be rejected.
Conclusion
[66] Accordingly, in the result we sustain Grounds 5 and 6 and in consequence the convictions of wilfully setting fire to furniture on charges 3(xi) and 4 will be quashed. For the rest, the appeal against conviction fails and must be refused. The case will be continued to a later date for a hearing on the appeal against sentence.
SCHEDULE
This is an abbreviated version of the charges against the appellant, as amended. The appellant was convicted of all charges without deletions. We have added the annotations in bold.
"[The Morris scheme]
(1) having formed a fraudulent scheme to dishonestly obtain sums of money from insurance companies from the death of your wife at your hands you did in furtherance of said fraudulent scheme.
(i) between 1 February 1990 and 28 May 1994, both dates inclusive, at ... ... Aberdeenshire ... and elsewhere in the United Kingdom to the Prosecutor unknown, you did enter into a romantic and sexual relationship with Claire Jennifer Morris or Webster;
(ii) on 3 September 1993 at ... Aberdeen, you did marry said Claire Jennifer Morris or Webster;
(iii) on 20 May 1992 at ... Aberdeen, you did induce said Claire Jennifer Morris or Webster to make a last Will and Testament, leaving her whole estate to you in the event of her death;
(iv) on 1 January 1993 at ... Aberdeen, ... and elsewhere ... you did induce said Claire Jennifer Morris or Webster to enter into a life assurance policy with Zurich Assurance Limited ...;
(v) on 30 December 1993 at ... Aberdeen, ... and elsewhere ... you did induce said Claire Jennifer Morris or Webster to enter into a mortgage protection plan with Legal and General Assurance Society Limited ...;
(vi) on 31 January 1994 at ... Aberdeen, ... and elsewhere ... you did induce said Claire Jennifer Morris or Webster to enter into a capital repayment plan consisting of 10 life assurance policies with J Rothschild Assurance Plc ....
(vii) on numerous occasions between 1 September 1993 and 28 May 1994, both dates inclusive, at ... Aberdeen, ... and elsewhere in Scotland ... you did by unknown means administer the drugs with a sedative effect including Temazepam, Sodium Valproate, known as Epilim and Carbamazepine, to Claire Jennifer Morris or Webster, all to her injury and to the danger of her life;
(viii) on 8 February 1994 at ... Aberdeen, you did purchase [a] motor vehicle ...;
(ix) [The murder of Claire Morris]
between 27 May 1994 and 28 May 1994, both dates inclusive, ... you did assault Claire Jennifer Morris or Webster, now deceased, and did by unknown means administer the drugs with a sedative effect including Temazepam, Sodium Valproate, known as Epilim and Carbamazepine, to said Claire Jennifer Morris or Webster, render said Claire Jennifer Morris or Webster unconscious, remove said Claire Jennifer Morris or Webster from ... [the marital home], Aberdeenshire and place said Claire Jennifer Morris or Webster in [said] motor vehicle ... drive said motor vehicle ... to the Auchenhuive to Tarves Road, Kingoodie, Aberdeenshire and drive said motor vehicle ... off the carriageway and down an embankment, exit said motor vehicle ..., by unknown means wilfully set fire to said motor vehicle ... knowing that said Claire Jennifer Morris or Webster was unconscious within said motor vehicle registered ... and unable to exit from said motor vehicle ..., allow said fire to take effect ... whereby said motor vehicle ... was destroyed and said Claire Jennifer Morris or Webster as a consequence of said fire which you had set wilfully was killed and you did murder her;
(x) between 27 May 1994 and 28 May 1994, both dates inclusive, ... you did falsely pretend to ... [four people] that you had been travelling alone in said motor vehicle ..., the truth as you well knew being that said Claire Jennifer Morris or Webster was unconscious in said motor vehicle ... and unable to exit ... and that said fire which you had wilfully set was going to take effect and thereby prevent the said Claire Jennifer Morris or Webster from being rescued ... in order to ensure that the said Claire Jennifer Morris or Webster perished in said ensuing fire;
(xi) between 27 May 1994 and 3 June 1994, both dates inclusive, ... you did falsely pretend that you were injured as a result of said motor vehicle registered ... having left the carriageway;
(xii) on 28 May 1994 ... having committed the crime libelled in paragraph (ix) above and being conscious of your guilt in respect thereof you did give a false statement to Police Constable Colin Reid, ... stating that the said collision involving motor vehicle ... and ensuing fire had been accidental and this you did with intent to avoid detection, arrest and prosecution in respect of said crime and with intent to defeat the ends of justice and did attempt to defeat the ends of justice;
(xii) on 1 June 1994 ... you did submit a claim to said Zurich Assurance Limited ... and you did falsely pretend to said Zurich Assurance Limited that said Claire Jennifer Morris or Webster had died as a result of a car accident, the truth as you well knew being that you had committed the crime as libelled in paragraph (ix) above and as a result of said claim and false pretence you did induce said Zurich Assurance Limited to settle said policy on 15 June 1994 and pay you the sum of money of £83,365.54 and you did thus obtain said £83,365.54 of money by fraud;
(xiv) on 9 June 1994 ... you did submit a claim to said J Rothschild Assurance Limited ... and you did falsely pretend to said J Rothschild Assurance Limited that said Claire Jennifer Morris or Webster had died as a result of a car accident, the truth as you well knew being that you had committed the crime as libelled in paragraph (ix) above, and as a result of said claim and false pretence to said J Rothschild Assurance Limited you did induce said J Rothschild Assurance Limited to settle said policies on 24 June 1994 and pay you the sum of £53,206.70 and you did thus obtain £53,206.70 of money by fraud;
(xv) on an occasion between 28 May 1994 and 16 June 1994, both dates inclusive, ... you did submit a claim to said Legal and General Assurance Society Limited ... and did falsely pretend to said Legal and General Assurance Society Limited that said Claire Jennifer Morris or Webster had died as a result of a car accident, the truth as you well knew being that you had committed the crime as libelled in paragraph (ix) above, and as a result of said claim and false pretence to said Legal and General Assurance Society Limited you did induce said Legal and General Assurance Society Limited to settle said policy on 16 June 1994 and pay you the sum of £5,400 and you did thus obtain said £5,400 of money by fraud;
(xvi) on an occasion between 28 May 1994 and 12 August 1994, both dates inclusive, ... you did submit a claim to said Legal and General Assurance Society Limited ... and did falsely pretend to said Legal and General Assurance Society Limited that said Claire Jennifer Morris or Webster had died as a result of a car accident, the truth as you well knew being that you had committed the crime as libelled in paragraph (ix) above, and as a result of said claim and false pretence to said Legal and General Assurance Society Limited you did induce said Legal and General Assurance Society Limited to settle said policy on 5 August 1994 and pay you the sum of money of £50,350 and you did thus obtain said £50,350 of money by fraud;
(xvii) on an occasion between 28 May 1994 and 15 November 1994, ... you did submit a claim to said Avon Insurance Plc ... and you did falsely pretend to said Avon Assurance Plc that said Clare Jennifer Morris or Webster had died as a result of a car accident, the truth as you well knew being that you had committed the crime as libelled in paragraph (ix) above, and as a result of said claim and false pretence to said Avon Insurance Plc you did induce said Avon Insurance Plc to settle said policy on a date unknown to the Prosecutor and pay you the sum of £1,000 and you did thus obtain said £1,000 of money by fraud;
(xviii) on 30 June 1994 ... you did submit a claim to said AGF Insurance ... and did falsely pretend to said AGF Insurance that said motor vehicle registered number H686 XES had been destroyed as a result of a car accident and as a result of said claim and false pretence to said AGF Insurance you did induce said AGF Insurance to settle said policy on 30 June 1994 and pay you the sum of £7,255 and you did thus obtain said £7,255 of money by fraud;
and
(xix) on an occasion between 28 May 1994 and 12 July 1994, ... you did submit a death certificate in respect of Claire Jennifer Morris or Webster to Scottish Public Pensions Agency and Paymaster Limited notifying said Scottish Public Pensions Agency and Paymaster Limited of her death and did falsely pretend that said Claire Jennifer Morris or Webster had died as a result of a car accident, the truth as you well knew being that you had committed the crime as libelled in paragraph (ix) above, and as a result of said notification and false pretence you did induce said Scottish Public Pensions Agency and Paymaster Limited to pay you the sum of £8238.36 and you did thus obtain said £8238.36 of money by fraud;
and as a result of said fraudulent scheme you did obtain the sum of £208,815.60 by fraud;
[The claiming of a pension subsequent to re-marriage to Felicity Drumm]
(2) between 26 April 1997 and 16 January 2009, both dates inclusive, at ... Aberdeenshire, ... and elsewhere ... you did falsely pretend to the Scottish Public Pensions Agency and Paymaster Limited that you were eligible each month to receive a widower's pension, the truth as you well knew being that you were not eligible to receive a widower's pension due to your marital status and you did induce said Scottish Public Pensions Agency and Paymaster Limited to continue to pay you each month said widower's pension ... and did thus obtain £10,439.12 of money by fraud;
[The Drumm scheme]
(3) having formed a fraudulent scheme to dishonestly obtain sums of money from insurance companies from the death of your wife at your hands you did in furtherance of said fraudulent scheme
(i) between 21 May 1996 and 22 February 1999, both dates inclusive, at ... Aberdeenshire, ... New Zealand ... and elsewhere ... you did enter into a romantic and sexual relationship with Felicity Ann Drumm;
(ii) [The attempted murder of Felicity Drumm by drugging]
between 1 July 1996 and 19 February 1999, both dates inclusive, at ... Aberdeenshire ... New Zealand, ... and elsewhere ... you did assault Felicity Ann Drumm and did administer the controlled drug Clonazepam and other controlled drugs to the said Felicity Ann Drumm, said drugs being unknown to the Prosecutor, and you did mix said Clonazepam and other controlled drugs with substances unknown to the Prosecutor in the knowledge that said Felicity Ann Drumm would ingest said controlled drugs and unknown substances to her severe injury and to the danger of her life and to the wellbeing of her unborn child and you did attempt to murder her;
(iii) on 26 April 1997 at ... Auckland, New Zealand you did marry said Felicity Ann Drumm;
(iv) between 1 June 1997 and 23 June 1997, both dates inclusive, the exact date being to the Prosecutor unknown, at ... Aberdeenshire, ... and elsewhere ... you did enter into a life insurance policy with Eagle Star Insurance Company Limited and AA Insurance, ... and utter as genuine a life insurance application form on which the name of Felicity Ann Drumm bore to be signed as a policy holder and life assured, said signature of Felicity Ann Drumm having been forged by you and between 23 June 1997 and 29 February 2000, both dates inclusive you did thereby obtain cover under said policy and did maintain said cover during said period by payment of the monthly premiums due under said policy from your Clydesdale Bank account ... held at ... Aberdeen;
(v) between 30 June 1997 and 2 July 1997, both dates inclusive, at ... Aberdeenshire, ... and elsewhere ... you did induce Felicity Ann Drumm to enter into a life assurance policy with Marks and Spencer Assurance Limited, ... and utter as genuine a life insurance application form on which the name of Felicity Ann Drumm bore to be signed as a policy holder and life assured, said signature of Felicity Ann Drumm having been forged by you between 2 July 1997 and 31 January 1999, both dates inclusive, you did thereby obtain cover under said policy and did maintain said cover during said period by payment of the monthly premiums due under said policy from your Clydesdale Bank account ... held at ... Aberdeen;
(vi) on 12 August 1997 at ... Aberdeenshire, ... and elsewhere ... you did enter into a Scottish Provident Life Assurance policy, ... and utter as genuine a life insurance application form on which the name of Felicity Ann Drumm bore to be signed as a policy holder and life assured, said signature of Felicity Ann Drumm having been forged by you and between 12 August 1997 and 15 October 1999, both dates inclusive, you did thereby obtain cover under said policy and did maintain said cover during said period by payment of the monthly premiums due under said policy from your Clydesdale Bank account ... held at ... Aberdeen;
(vii) between 1 December 1997 and 17 December 1997, both dates inclusive, the exact date being to the Prosecutor unknown, at ... Aberdeenshire, ... and elsewhere ... you did enter into a American Express Triple Cover Plan life insurance policy, ...;
(viii) on 12 January 1998 at ... Aberdeenshire, ... and elsewhere ... you did induce said Felicity Ann Drumm to make a last Will and Testament leaving her whole estate to you in the event of her death;
(ix) on 26 September 1998 at ... Aberdeenshire, ... and elsewhere ... you did enter into a Cigna Life Insurance and American Express Comfort 24 Plan Insurance Policy...;
(x) on 3 December 1998 at ... New Zealand ... you did enter into a AMP life Insurance Policy...;
(xi) [The Norwood fire]
between 21 January 1999 and 27 January 1999, both dates inclusive, the exact date being to the Prosecutor unknown, at ... Norwood Road, Bayswater, Auckland, New Zealand you did pour petrol or other similar accelerant over a quantity of paper and by unknown means set fire to said quantity of paper and this you did wilfully and with intent to delay or frustrate discovery of said fraudulent scheme as libelled herein;
(xii) on 27 January 1999 at ... Auckland, New Zealand, you did induce said Felicity Ann Drumm to make a last Will and Testament leaving her whole estate to you in the event of her death;
(xiii) [The Eversleigh fire]
on 10 February 1999 at ... Eversleigh Road, Takapuna, Auckland, New Zealand, you did by unknown means, set fire to an armchair in the living room and allow said fire to take effect and this you did wilfully and with intent to delay or frustrate discovery of said fraudulent scheme as libelled herein and to the danger of Felicity Ann Drumm, ... [their infant son and Felicity Drumm's parents];
(xiv) [The attempted murder of Felicity Drumm by car crash]
on 12 February 1999 at Esmonde Road, Auckland, New Zealand, Auckland Harbour Bridge, Auckland, New Zealand, Northwest Motorway, and at Western Springs, Auckland, New Zealand, having already placed a container of petrol and a quantity of newspapers in the rear of [a] motor vehicle registered ... and a lighter in the centre front console of said motor vehicle ..., you did drive said motor vehicle ..., and did deliberately crash said motor vehicle ..., and did falsely pretend that the steering of said motor vehicle ... was faulty and that you had lost control of said motor vehicle ..., and in pursuit of said false pretence did drive said motor vehicle ... at speeds of 90 kilometers per hour, cause said motor vehicle ... to swerve across a three lane carriageway, drive said motor vehicle ... in the direction of a power pole, drive said motor vehicle ... off the carriageway onto the hard shoulder, drive said motor vehicle ... along the hard shoulder at speeds of 50 kilometers per hour, drive said motor vehicle ... off the hard shoulder, down an embankment, and cause the passenger side containing Felicity Ann Drumm to collide with a tree, and this you did in an attempt to cause a car crash in which said Felicity Ann Drumm would be fatally injured and you did so with intent to kill her and you did thus attempt to murder her;
and did thereby attempt to obtain £514,026 and NZ$500,000 of insurance monies by fraud;
[The Easter Letter fire]
(4) on 16 September 1997 at Easter Letter Cottage, Lyne of Skene, Aberdeenshire you did by unknown means set fire to furniture in the living room and allow said fire to take effect and this you did wilfully;
[The exaggerated insurance claim]
(5) on 3 September 1998 at ... Aberdeenshire, ... and elsewhere ... you did submit an insurance claim ... for the sum of £87,847 and falsely pretend that said sum represented the value of your property that had been destroyed in a fire at Shore Porters, ... Aberdeen on 26 August 1998 the truth being as you well knew that the true value of your property was £50,000 and you did induce said CGU Insurance to settle said claim and pay you the sum of £68,000 and you did thus obtain £18,000 of money by fraud;
[The appellant's fraudulent appropriation of Felicity Drumm's money]
(6) on various occasions between 1 December 1998 and 15 February 1999, both dates inclusive, at ... Auckland, New Zealand, ... Aberdeen, [and] elsewhere ... you did falsely pretend to Felicity Ann Drumm that you were in a position to transfer money from the United Kingdom to New Zealand to assist with the purchase of the property at ... Norwood Road, Bayswater, Auckland, New Zealand, the truth as you well knew being that you were not in a position to transfer money and did not intend to purchase the property at ... Norwood Road, Bayswater, Auckland, New Zealand and as a result of said false pretence did induce said Felicity Ann Drumm to enter into two joint bank accounts with you, ... and [induce her to] transfer NZ$140,000 into ... [one of those accounts] for the purpose of paying the purchase price of said property at ... Norwood Road, Bayswater, Auckland, New Zealand did you did appropriate NZ$4,900 and £32,832 of money from said joint accounts, without the consent and knowledge of said Felicity Ann Drumm, to your own use and purposes and did transfer £32,832 of money to your Clydesdale Bank account ... held at ... Aberdeen and did thus obtain NZ$4,900 and £32,832 of money by fraud;
[The Banarjee scheme]
(7) having formed a fraudulent scheme to enter into a bigamous marriage with Simone Marie Adams or Banarjee and thereby gain access to her estate you did in furtherance of said fraudulent scheme
(i) between 5 August 2004 and 11 January 2008, both dates inclusive, at ... Oban and elsewhere in the United Kingdom to the prosecutor unknown, you did enter into a romantic and sexual relationship with said Simone Marie Adams or Banarjee;
(ii) between 5 August 2004 and 11 January 2008, both dates inclusive, at ... Oban ... and elsewhere in the United Kingdom you did falsely pretend to the said Simone Marie Adams or Banarjee that you were free to marry the truth as you well knew being that you were still married to the said Felicity Ann Drumm and that no legal proceedings were underway or in contemplation to dissolve said marriage;
(iii) between 1 October 2005 and 11 January 2008 at ... Oban ... and elsewhere in the United Kingdom to the prosecutor unknown you did falsely pretend to the said Simone Marie Adams or Banarjee that you had been diagnosed with chronic lymphatic leukaemia and that you were terminally ill and receiving chemotherapy treatment the truth as you well knew being that you had not been diagnosed with chronic lymphatic leukaemia and were in good health;
(iv) on an occasion between 1 December 2005 and 31 January 2006 at ... Oban and elsewhere in the United Kingdom to the prosecutor unknown you did induce the said Simone Marie Adams or Banarjee to ask you to reside with her at ... Oban and to lend you sums of money;
(v) on an occasion between 1 September 2006 and 30 September 2006, both dates inclusive, at ... Perthshire, you did ask the said Simone Marie Adams or Banarjee to marry you;
and as a result of said fraudulent scheme you did induce said Simone Marie Adams or Banarjee to accept said marriage proposal and incur expense in respect of wedding preparations, and on 22 February 2006 at ... Oban induce said Simone Marie Adams or Banarjee to make a last Will and Testament leaving her whole estate to you in the event of her death and this you did by fraud."