| APPEAL COURT, HIGH COURT OF JUSTICIARY |
Lord Justice General Lady Paton Lord Clarke | [2009] HCJAC 6 Appeal No: XC149/06 OPINION OF THE COURT delivered by LADY PATON in APPEAL by PAUL CANNELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Taylor, Solicitor Advocate; Gilfedder & McInnes, Edinburgh
Alt: Brown, A.D.; Crown Agent
16 January 2009
Introduction
[1] The appellant went to trial at Glasgow sheriff court in February 2006, facing three charges of alleged sexual misconduct. Charge 1 (as amended) was a common law charge relating to an incident of lewd and libidinous behaviour during the period 26 June 1992 to 28 October 1993, when the complainer P was aged 9 or 10. Charge 2 was a common law charge (also charged on an alternative statutory basis, as explained below) relating to an incident of lewd and libidinous behaviour during the period 23 November 1994 to 22 November 1996, when the complainer M was aged 10 or 11, or alternatively during the period 23 November 1996 to 25 November 1997, when the complainer was aged 12 or 13. Charge 3 was a statutory charge relating to several incidents of lewd and libidinous behaviour during the period 20 February 1998 to 19 February 1999, when the complainer E was aged 13 and 14.
[2] After trial, the jury found the appellant guilty of Charges 1 and 3. They returned a verdict of "not proven" in respect of Charge 2. The appellant appeals against conviction, contending that it was not possible for the jury to find the necessary corroboration by applying the Moorov doctrine in respect of Charges 1 and 3 when they had acquitted the appellant in respect of Charge 2.
The statutory alternative in charge 2
[3] Section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 provides:
"Any person who uses towards a girl of or over the age of 12 years and under the age of 16 years any lewd, indecent or libidinous practice or behaviour which, if used towards a girl under the age of 12 years, would have constituted an offence at common law shall, whether the girl consented to such practice or behaviour or not, be liable on conviction on indictment to imprisonment ..."
The annotations in Current Law Statutes explain that:
" ... [t]he type of behaviour envisaged by this section constitutes a common law crime if committed in respect of children below the age of puberty."
[4] The statutory alternative was included in Charge 2 to enable the jury to determine, on the basis of the evidence, M's age at the time of the alleged incident. If they concluded that she was aged under 12, the common law charge was relevant; if they concluded that she was aged 12 or over, the statutory alternative was relevant.
A summary of the evidence
[5] In a report and a supplementary report, the sheriff outlined the evidence of the three complainers, P (aged 22) and M (aged 21) who were sisters, and their cousin E (aged 20). He also summarised the evidence of the complainers' aunt J, and of a police officer.
[6] The complainer P described frequent overnight visits to her maternal grandmother at D Drive, Castlemilk. Her aunt J lived at that address. J was in a relationship with the appellant. During one visit, the appellant came to P's bed and knelt beside it. P was pretending to be asleep. Thereafter, as the sheriff narrates in his report:
"[t]he appellant had his face close to hers. He pulled the bed clothes down to about her chest area and then placed his hand inside the witness's nightdress and down the front of her pants. He left his hand there for 'less than a couple of minutes'. J then returned to the room and the appellant removed his hand. J told him to leave the girls as they were sleeping. The appellant had felt around the witness's vaginal area and moved his hand around for a few seconds ... She thought she was about ten at the time of the incident, but she could have been nine."
[7] The evidence of the complainer M was to the effect that she had visited her aunt J at the house to which she had moved after leaving D Drive, namely her house at B Road, Castlemilk. J was living with the appellant. During one overnight stay, M was in bed. The sheriff reports:
"She was wearing underwear and a nightdress. She was woken by the appellant touching her under her underwear. She said that he touched her on 'the front part of my bottom'. She said that he was stroking her. The quilt on the bed had been moved and she thought that her nightdress had been moved up a bit. At the time she thought he thought she was her aunt, but she did not think that now. She moved away from him and he touched her back. For the rest of the night she pretended to be asleep."
[8] The complainer E gave evidence that she used to visit her grandmother at D Drive, and sometimes stayed overnight. After J and the appellant moved to B Road, she used to baby-sit for them. She started baby-sitting when she was thirteen. As the sheriff's report notes:
"It was on these occasions that the abuse happened. When she stayed for this purpose she would go to sleep in their bed, and when one of them returned they would wake her up and she would move through to another bed. J and the appellant rarely went out together. The first one back would wake her up. On one occasion she heard the door. She woke to someone caressing her and running [his] hands up and down her body. She had on a nightdress and pants. She was lying under a duvet. She was in shock and didn't see who was touching her. He ran [his] hand up to her hair and back down again. He put his hand into her pants from the back and inserted his finger into her vagina. She moved to make him aware that she was awake and he removed his finger. He then lifted her through to her cousin's bed. While being carried she opened her eyes enough to realise that it was the appellant who was carrying her. The following day he acted as if nothing had happened. The second incident occurred a couple of weeks later. She again went into her aunt's bed. She did not think that the appellant would do it again. She had on a nightdress and pants. She was still awake when she heard the door. The appellant came in and put his hands on her leg. He put his hands down the back of her pants and touched her vagina. He put his finger inside her. She moved about and he removed his finger. He then removed his trousers and got into bed beside her. She then got up and went through to her cousin's room. The third incident occurred a week later. On this occasion she went straight to her cousins' bedroom and got into bed beside her cousin O who slept in a top bunk. She didn't hear the door and was woken up by someone touching her. He moved his hands up and down her body and pulled up her nightdress and inserted his finger into her vagina. She wriggled about and he stopped. The fourth incident occurred when she was again sleeping in her cousin's bed. It happened very much the same as the third occasion. When she was about sixteen or seventeen years old she was baby-sitting. She was in the living-room when the appellant came in. He asked her for a kiss and she said no. Despite that he attempted to kiss her. After that incident she did not have a lot of contact with the appellant. She sent him a text saying that if he tried it again she would tell someone. Prior to the fifth incident she had tried to put it out of her mind but that incident brought it all back. One day at her grandmother's house the appellant brushed past her. She said to P that he was a 'fucking pervert'. She discussed his behaviour but did not discuss everything that he did. It was only after M had a breakdown when drunk that her parents spoke to the witness."
[9] The complainers' aunt J gave evidence about living with her mother at D Drive then moving to B Road; having a relationship with the appellant; the sleeping arrangements at both D Drive and B Road when the girls came to stay; the ending of her relationship with the appellant in May 2004, and her learning of the allegations against him in August 2004.
[10] A police officer gave evidence about an interview with the appellant, during which he denied all the allegations.
[11] The appellant and his mother gave evidence amounting to a complete denial that he had done anything to the girls.
The sheriff's charge
[12] The sheriff directed the jury inter alia as follows:
At page 5 of his Charge:
"You can accept part of a witness's evidence and reject part. If you reject a piece of evidence because a witness is either lying in your view or unreliable you put it out of your mind completely. It doesn't mean that the opposite is true. You just ignore the evidence that you reject. If somebody says it is raining outside and you don't believe them because you find that they are generally unreliable, it doesn't necessarily mean that it is dry."
Further at pages 11 to 15:
"I now want to deal with the special rule of evidence which has been described as Moorov which is know to lawyers in Scotland from a case in the fifties [sic] by that name. Sometimes crimes are committed and for various reasons there is little or no eyewitness evidence and in such cases a special rule can apply. It can apply where an accused is charged with a series of similar crimes where there is a different victim of each crime, the commission of each crime is spoken to by one credible and reliable witness and the accused is identified as the person who committed each crime. So all those factors have to be present before you can apply the rule. The rule is this: that if you are satisfied that the crimes charged are so closely linked by their character, the circumstances of their commission and time as to bind them together as a part of a single course of criminal conduct systematically pursued by the accused then the evidence of one witness about the commission of one crime is sufficiently corroborated by the evidence of one witness about the commission of each of the other crimes. To take an example of a case which is far removed from the present one, suppose someone is charged with corruption in the form of trying to fix four football matches. Four goalkeepers give evidence that within a reasonably short period of time he approached each of them when alone and said I'll give you £40,000 to lose the game. If the evidence is believed, there is mutual corroboration and the same rule could apply in this case. For it to apply, you have to believe the witnesses who speak to the individual charges. If you don't, there can be no corroboration. If you have got three, six, ten witnesses who you don't believe, that doesn't take the Crown one centimetre further forward. So if you believe the complainer on any particular charge then you would have to find corroboration from a credible witness who speaks to any of the other charges. If you do believe that witness then you have to decide if by reason of the character, circumstances and time of each charge the crimes are so closely linked that you can infer that the accused was pursuing a single course of crime and bear in mind it is important that you have to find that this is a single course of crime. It is not enough if all that is shown is that the accused had a general disposition to commit this kind of offence. If somebody has a general disposition to commit particular offences it does not mean that they commit a particular offence. So you do have to apply this rule with some caution. The Crown says that the rule can be applied in this case and they point to the similar circumstances that the three girls spoke to, that it all happened at their aunt's house involving their aunt's boyfriend and that the manner of him committing these offences, namely when they were in bed and he was placing his hand under their bedclothes, is similar circumstances. In relation to the third charge, the accused is said to have gone further and placed his finger inside the complainer's vagina. It is for you and for you alone to decide whether this was of similar character and the circumstances were similar and he was just going a bit further than he had before or whether this was a different character of offence. In the former case you can apply the rule, in the latter case you could not. The Defence don't suggest any particular reason that the charges are dissimilar and that the rule can't be applied but merely because the Defence don't say that doesn't mean that you don't have to consider this independently and consider whether the rule can be applied. What I can say, and what has been said I think by both lawyers, is that there is enough evidence in law that the crimes alleged are sufficiently close in time, character and circumstances for the rule to apply but you have to decide if the evidence led is credible and reliable, if there is the necessary link in time, character and circumstances has been established and thirdly that if so the rule should be applied. If you do apply it then you could convict the accused of each of these charges or a combination of them. You'll have to consider all the evidence that the Crown relies on and the submissions made by the Procurator Fiscal Depute and you will have to give consideration to the defence case but I can tell you that there is sufficient evidence in law to implicate the accused but legal sufficiency isn't the issue for you. You will have to assess the quality, strength and effect of the evidence and decide if the case against the accused has been proved or not. It is your decision what conclusion you reach on that evidence."
Also at pages 19 to 22:
"In respect of each of these charges, you will have to decide when the offences were committed. This is important for three reasons. Firstly, if they were not committed during the period described in the libel as now amended, in other words taking charge one as an example between 26th June of 1992 and 28th October 1993, you cannot convict. Secondly, in order to decide whether to apply the special rule of the evidence about a course of criminal conduct that I explained earlier you have to decide whether the charges are so connected in time that in your view they do demonstrate a course of criminal conduct. For these two you don't have to pick a precise time or precise range of times but you do have to focus on approximately when you think the offences took place. Thirdly, in respect of charge two, if you decide beyond reasonable doubt that the accused acted in the way set out in the charge you are left with three possibilities. Firstly, that you're satisfied beyond reasonable doubt that the act took place before 22nd November, 1996, in which case you should convict of the first alternative. Secondly, if you're satisfied beyond reasonable doubt that the act took place after 22nd November, 1996, in which case you should convict of the second alternative or thirdly, you cannot reach a conclusion on this issue. If that should be your decision, you would not be satisfied to the necessary standard in respect of either of these alternative charges and it would be your duty to acquit. That may seem to you illogical as by then you would have decided that he carried out acts which would be unlawful whether dealing with a child of 11 or a child of 12. However, it is inevitable because of the fact that these are different offences, one at common law and one under the statute. You have to be satisfied that he committed a particular crime before you could convict him of that crime. If you decide that M was telling the truth about what the accused did to her but you are unable to decide when it happened and for that reason alone you would acquit, you may however use her evidence for the purpose of corroborating the other two girls if you were satisfied about the other matters I explained earlier when dealing with what is known as the Moorov principle, namely that the course of conduct is sufficiently linked in character, circumstances and time to disclose a course of conduct. The reason for that is that Moorov is dealing with a rule of evidence rather than looking particularly at the nature of the charges and as far as evidence is concerned, M's evidence would be available to you even if you couldn't tell precisely when the incident took place, whether before or after her 12th birthday."
Grounds of Appeal
First ground of appeal
[13] The appellant's first ground of appeal is in the following terms:
"... the learned sheriff should have directed the jury that if they were to acquit the appellant of Charge 2 on the indictment then they could not apply the Moorov doctrine to Charges 1 and 3; that there would be an insufficiency of evidence in respect of those charges and that an acquittal would have to follow in respect of all the charges on the indictment.
It is submitted in particular that the gap in time between Charges 1 and 3 was so great as to suggest that this was two separate series of incidents rather than a course of criminal conduct systematically pursued by the appellant.
It is therefore submitted that there has been a miscarriage of justice."
Second ground of appeal
[14] In an additional ground of appeal, the appellant submits that:
"... the sheriff misdirected the jury at page 21, line 9 to page 22, line 3 of the transcript of his charge wherein he directed the jury that the evidence of the complainer in Charge 2, M, would still be available to them to consider as corroboration under the Moorov doctrine in respect of Charges 1 and 3, even if they were to acquit the accused on Charge 2.
The sheriff directed the jury that this would be on the basis that they could acquit the accused on Charge 2 on the basis that they could decide that the accused had acted in the manner libelled, but acquit him if they could not decide beyond reasonable doubt as to the age of the complainer at the time of the commission of the offences in order to ascertain whether the offence fell within the time parameters of the first or second alternative on the charge.
It is submitted that this direction is erroneous and without foundation in law. It may have led [to] the jury considering the evidence of the complainer in Charge 2 as supportive of the evidence in Charges 1 and 3, when the jury ought properly have been directed to disregard the evidence of the complainer in charge 2 in the event that they acquitted the accused on Charge 2 for any reason, including the jury finding the complainer's evidence incredible or unreliable.
It is impossible to ascertain from the jury's verdict on what basis they acquitted the accused.
The failure to properly direct the jury in this matter was material, significant and so led to a miscarriage of justice."
Third ground of appeal
[15] In a further additional ground of appeal, the appellant submits that:
"...the sheriff erred in law in his directions to the jury at page 14 of his charge between lines 15 to 24 where he indicates that, subject only to the question of credibility and reliability, there is enough evidence in law that the crimes alleged are sufficiently close in time, character and circumstances for the rule (of Moorov) to apply.
It is submitted that this is an erroneous statement of the law which would wrongly fetter or limit the jury's discretion in dealing with this issue; reference is made to the case of Sinclair v HM Advocate 1990 S.C.C.R. 412.
In particular this may have unduly restricted the jury's discretion as to whether or not the doctrine was still to apply in the event that they brought in a verdict of acquittal in any of the charges, particularly Charge 2 having regard to the time gap that would leave between Charges 1 and 3."
At the appeal hearing Mr Taylor, solicitor-advocate for the appellant, did not insist upon the third ground of appeal as a discrete, self-standing argument, although he submitted that the sheriff's wording at page 14, lines 15 to 24, was unfortunate, and perhaps had a cumulative effect with the other grounds of appeal noted above.
The sheriff's response to the Grounds of Appeal
[16] Under the heading "Ground of Appeal" the sheriff noted the following:
"During his speech Counsel for the Appellant did not address the Jury at any length on Moorov and accepted that there was a legal sufficiency. The main thrust of his speech was to the effect that nothing happened at all.
I took the view that in the circumstances there was a sufficiency even if the Jury acquitted the Appellant of Charge 2 to convict of Charges 1 and 3. Having regard to what was said in Dodds v Her Majesty's Advocate 2002 S.C.C.R. 838 it seemed to me that this was an issue I had to leave to the Jury. I considered that the circumstances had many similarities. Both complainers were nieces of the Appellant's partner; both were staying the night at their Aunt's house; both were in bed when the alleged offences took place; and in both cases the Appellant placed his hands under the bedclothes. While the period was lengthy I was of the opinion that the Jury could take the view that the conduct amounted to a course of conduct rather than two individual incidents. I did remind the Jury of the one feature that was different between the charges, namely that in Charge 3 the complainer spoke of penetration. I was concerned about this distinction, however I took the view that it was open to the Jury to decide that this was a progression within a course of criminal conduct rather than conduct of a different character."
In a supplementary report, the sheriff provided further information as follows:
"Charge two gave rise to a difficulty as the complainer was unable to specify the date on which she said the offence took place. The evidence pointed to the offence taking place within a bracket, during which the complainer turned twelve years of age. It was no doubt in anticipation of this difficulty that the Crown pled Charge two in the alternative. The two offences however are mutually exclusive in that in order to be guilty of the common law offence, the complainer must be under twelve and to be guilty of an offence under the statute, she must be over twelve. As the age of the complainer is an essential part of the charge I directed the Jury that in order to convict of either alternative they must be satisfied beyond reasonable doubt of the complainer's age at the date of the offence. If they could not be satisfied that the Panel had committed a particular offence, even if they believed the complainer that the conduct complained of had taken place, they must acquit.
That left the status of the complainer's evidence relating to the alleged conduct. I took the view that as the rule in Moorov v HMA 1930 J.C. 68 was a rule of evidence rather than one of substance, the evidence of the complainer could be used to corroborate the other charges if the remaining requirements were satisfied. The conduct spoken to by the complainer in Charge two, if believed, was as much criminal as the conduct spoken to by the other complainers. It is only as a result of an unfortunate lacuna between the common law and the statute, that the Jury were unable to convict in relation to that conduct, if they accepted that it occurred and they could not be satisfied about the date on which it occurred. In Moorov the Lord Justice Clerk (Alness) said at page 80:-
'Positively the rule may be expressed thus:- that where, on the other hand, the crimes are related or connected with one another, where they form part of the same criminal conduct, the corroborative evidence tendered is competent.'
Applying that test, namely whether the conduct could be described as part of the same criminal conduct, I concluded that the evidence was competent. This case was distinguishable from the type of case where there is no competent evidence of the alleged offence, such as where the accused pleads guilty or where the offence is not charged in the indictment. The evidence of the complainer had been competently led before the Jury and as such formed part of the evidence the Jury were entitled to take into account.
I should add that because the issues relating to Charge two were not straightforward I held a hearing at the conclusion of the evidence outwith the presence of the Jury. I advised parties of how I intended to direct the Jury in relation to Charge two and the use of the complainer's evidence as corroboration of the other charges and invited submissions. Both the Procurator Fiscal Depute and Counsel for the Panel submitted that my proposed charge was correct."
In a second supplementary report, the sheriff stated:
"In the passage of my Charge referred to in Ground of Appeal 1B [the third ground of appeal] I instructed the Jury that there was sufficient evidence in law to allow them to apply Moorov. However I directed them that it was for them to decide whether or not they should apply the doctrine. The passage referred to in the Ground of Appeal was in effect a summary of the directions I gave in a passage starting at line 8 on page 11. At line 23 [of page 11] I said:
'The rule is this: that if you are satisfied that the crimes charged are so closely linked by their character, the circumstances of their commission and time as to bind them together as part of a single course of criminal conduct systematically pursued by the accused then the evidence of one witness about the commission of the crime is sufficiently corroborated by the evidence of one witness about the commission of each of the other crimes.'
Later on at page 12 line 18 I stressed the need for the jury to believe the witnesses and at page 13 line [3] I said:
'If you do believe that witness you then have to decide if by reason of the character, circumstances and time of each charge the crimes are so closely linked that you can infer that the accused was pursuing a single course of crime...'
I proceeded to stress that it was necessary for them to find that the Appellant was pursuing a course of crime rather than that the Appellant had a general disposition to commit this type of offence. I then dealt with various factors which the Crown said connected the offending behaviour. I pointed out that the allegations in Charge 3 differed from the allegations in the other charges. I directed them that it was for them and them alone to decide whether the offence libelled in Charge 3 was of a similar character and the Appellant had gone a bit further than he had before or whether it was a different character of offence.
At page 14 line 9 I directed the Jury that although the defence had not pointed to any particular reason for the charges being dissimilar it remained for them to consider the matter independently.
In the passage complained of I directed the Jury that there was enough evidence in law for the rule to be applied. However I went on to say:
'... but you have to decide if the evidence led is credible and reliable; if there is the necessary link in time, character and circumstances has been established; and thirdly that if so the rule should be applied. If you do apply it then you could convict the accused of each of these charges or a combination of them.'
I do appear have strayed from my script a little as I meant to say after credible and reliable 'secondly if the necessary link in time, character and circumstances has been established;'. I do not consider however that the Jury would be left in any doubt as to the need for them to consider the various elements of the doctrine.
In summary I consider that I made it clear to the Jury that it was for them to consider whether each element of the doctrine applied and whether they should find mutual corroboration in the evidence of the three complainers. I do not consider that I usurped the Jury's function as occurred in HMA v Sinclair 1990 SCCR 412."
Submissions on behalf of the appellant
[17] Mr Taylor criticised the sheriff's direction that M's evidence could be used in support of other charges even if the jury were to acquit of the charge to which M's evidence related. Such a direction was novel and without precedent. There was no authority to support the proposition that the evidence relating to a charge of which the accused was acquitted could nevertheless be used to support other charges. Such a use of the Moorov doctrine represented a significant extension of the doctrine, and one which was dangerous and unwarranted. The major difficulty was that the court could not know why the jury acquitted the appellant of Charge 2. If they acquitted the appellant of Charge 2 because they considered M to be incredible and unreliable, it would be quite improper to permit them to rely upon M's evidence to support the charges relating to P and E.
[18] The ability or otherwise to rely upon evidence relating to Charge 2 was also important because of the time-periods concerned. If the jury were able to consider the incidents referred to in Charges 1, 2, and 3, then the periods of time elapsing between the incidents described by each complainer were unexceptional. In that situation, there was no period so long that the Moorov doctrine could not be applied. If, however, the evidence relating to Charge 2 were to be removed from the equation, the position changed radically. There was then a lapse of time of at least 4 years 4 months (from 28 October 1993 until 20 February 1998). The lapse of time was possibly greater. Such a time-lapse was too long for the application of the doctrine. There was no authority supporting the use of the Moorov doctrine with such a long time-lapse between an incident spoken about by one witness and an incident spoken about by another witness. It was accepted that the authorities vouched the proposition that the longer the period, the stronger other factors such as character and circumstances had to be in order properly to apply the doctrine. But in such a balancing exercise, it was difficult to justify a minimum time lapse of 4 years 4 months, and more difficult for the jury to decide whether or not there had been a course of conduct.
[19] If a significant time-lapse occurred, the other elements in the case had to be scrutinised closely. Reference was made to Moorov v HM Advocate 1930 J.C. 68, and Dodds v HM Advocate 2002 S.C.C.R. 838. It was accepted that there were similarities in the incidents. For example, P, M and E were nieces of the appellant's then partner; the abuse allegedly occurred when each niece visited the appellant's partner (or the grandmother with whom the partner initially lived); and P, M and E were each under the age of 16 at the relevant time. However there were also important dissimilarities. In particular, the similarity in age was more apparent than real. The complainer P was aged 9 or 10 at the time of the incident; by contrast the complainer E was aged 13 to 14 years - in other words, E was not a prepubescent child like P. The events involving E were at a different address, although it was accepted that there was a connection between the two addresses. The behaviour towards E, aged 13 and (according to the sheriff's report) continuing until she was 16 or 17 when she was asked for a kiss, was very different from the inappropriate sexual touching of a prepubescent girl aged 9 or 10 (as was P). Such differences tended to detract from any suggestion of an underlying unity of purpose, as one could not characterise the behaviour as that of a predatory paedophile attracted to female children under the age of 12.
[20] Further, the types of behaviour libelled in Charges 1 and 3 were distinct. Charge 3 involved digital penetration, whereas Charge 1 did not. If the behaviour alleged in Charge 2 was still before the jury for their consideration, there was perhaps some leeway in the application of the Moorov doctrine; but if Charge 2 was no longer before the jury, the behaviour in Charges 1 and 3 had to be examined much more closely to see whether there was truly any unity of purpose. Additional dissimilarities in the evidence included the fact that although the complainers were all nieces of the appellant's partner, P and M were young girls visiting their aunt at the grandmother's house, whereas E was older and was acting as a baby-sitter at the young couple's house: thus her status was very different. Further, Charge 1 involved only one incident, as did Charge 2; but Charge 3 involved several incidents.
[21] The appellant's position was as stated in his first Ground of Appeal, namely that if the jury were to acquit of Charge 2, they could not in law apply the Moorov doctrine to Charges 1 and 3. If the evidence relating to Charge 2 were to be left out of account, a significant time-lapse emerged such that the behaviour in Charges 1 and 3 could not be said to be so closely aligned as to permit the application of the doctrine: cf. Dodds. Thus there would be an insufficiency of evidence in respect of those charges, and the appellant should be acquitted of those charges.
[22] A further problem arose in the present case, in that it was impossible to know on what basis the jury's decision had been reached. It could not be ascertained whether the jury had believed, or disbelieved, M when she gave evidence in relation to Charge 2. The sheriff had therefore misdirected the jury as to how the evidence relating to Charge 2 could be treated. If the evidence relating to Charge 2 were to be left out of account, a significant time-lapse emerged, namely a minimum of 4 years 4 months, together with a significant difference in the nature of the offence: in one case a child aged 9 or 10, visiting her aunt; in the other case a much older baby-sitter aged in the range 13 to 17. In such circumstances, there could not in law be a detectible unity of purpose. By contrast, if the jury were entitled to take into account the evidence relating to Charge 2, it was accepted that the time-periods between the various episodes could not be regarded as too long for the application of the Moorov doctrine.
Submissions on behalf of the Crown
[23] In relation to the appellant's second ground of appeal, the Advocate Depute submitted that Moorov v HM Advocate 1930 J.C. 68 was not free-standing, but was rather an example of the application of circumstantial evidence as corroboration. The Moorov doctrine comprised two distinct parts: (i) the underlying unity of purpose and (ii) the relationship of each offence charged to that underlying unity. The Crown's position was that, in the circumstances of this case, the evidence in relation to Charge 2 was relevant to, and hence available for consideration by the jury as corroboration of, the first element (namely, the underlying unity). What could be drawn from authorities such as Dumoulin v HM Advocate 1974 S.L.T. (Notes) 42, HM Advocate v Joseph 1929 J.C. 55, and McIntosh v HM Advocate 1986 S.C.C.R. 496, was that if evidence was relevant, and if it did not transgress any particular exclusory rule, it was admissible and available for consideration by the jury. It could be seen from Moorov, in particular page 73, that the court did not develop the doctrine ex nihil, but did so by applying what was said in Hume, Vol.II pages 384-385 in the context of circumstantial evidence. The first example of the Moorov doctrine did not relate to sexual behaviour, but rather to subornation of perjury: Hume op cit page 385. The Moorov doctrine was thus a special case of circumstantial evidence. The Lord Justice General in Moorov contemplated first, proof of the existence of an underlying unity of purpose; and secondly, an examination of the individual charges and their relationship in time, character, and circumstances, in order to assess whether the particular charges formed part of that underlying unity. Thus the Lord Justice General contemplated proof of an underlying unity by evidence apart from that which was spoken to by the complainers. The evidence of the complainers was not the only evidence which could establish an underlying unity. For example, a mixed statement (indicating that the accused had not committed the offences of which he was charged, but acknowledging an interest in young girls) might be a piece of evidence from which an underlying unity of purpose might be inferred.
[24] Thus in the context of the two elements referred to above, evidence relating to an underlying unity of purpose would be available to the jury, even although that evidence did not bear directly upon the charges. An underlying unity of purpose could be established by evidence which existed apart from the evidence available in relation to the particular charges. One was therefore dealing with two requirements, namely proof of a state of facts establishing a unity of purpose underlying and connecting the charges; and the question whether the individual charges were, by their connection in time, character, and circumstances, exhibited as subordinates to the underlying unity: cf the approach adopted by Lord Coulsfield in Wilson v HM Advocate 2001 S.C.C.R. 455, at paragraph [8]. Thus the correct approach to the Moorov doctrine was first, to look at what was alleged to be the underlying unity of purpose, and then to assess whether the charges were so related as to form part of that unity of purpose.
[25] The sheriff had given the jury clear and standard directions about the Moorov doctrine. Further, at page 21 line 9 et seq he gave the jury directions as to what they should do if they decided that the complainer M was telling the truth, but they were unable to decide when the incident had happened and thus were obliged to acquit the appellant of Charge 2 because they could not choose between the common law and the statutory alternatives. Only in those particular circumstances were the jury entitled to use the evidence relating to Charge 2 as corroboration for the events libelled in the other charges. Accordingly the context in which the jury could use that evidence was very restricted. Earlier in his charge, at pages 5 and 11 to 13, the sheriff had given the jury standard directions about Moorov, and had told them that if they rejected a piece of evidence because the witness was either lying or unreliable, they were to put that evidence out of their minds completely. Thus the evidence relating to Charge 2 could be used as corroboration only if the jury believed M's evidence and found it reliable, but were obliged to acquit because they could not find it proved, beyond reasonable doubt, when the incident occurred.
[26] The assessment of the evidence relating to Charges 1 and 3 was a pure jury question. It was open to the jury to take the view that there was sufficient connection in time, character and circumstances. The Moorov doctrine could be applied even although there had been a long time-lapse: Stewart v HM Advocate 2007 S.C.C.R. 303. In the present case, inappropriate sexual attention was paid to young girls in the family, and a long time-lapse would not necessarily prevent the jury from applying the Moorov doctrine, although with caution, as directed by the sheriff.
[27] Applying the sheriff's directions, as the jury must be assumed to have done, the jury's verdict must have had one of two bases: either the jury had found difficulty with the time of the occurrence in Charge 2, had acquitted the appellant of Charge 2 for that reason, and had, in accordance with the sheriff's directions, used the evidence led in respect of Charge 2 in relation to the other charges; or the jury had disbelieved the complainer M, had put her evidence out of their minds completely, and had then convicted of Charges 1 and 3. Had the indictment contained only Charges 1 and 3, it was submitted that the Moorov doctrine was applicable if the jury chose to apply it, for although there was a gap in time, there were similarities in character and circumstances which made it appropriate to leave the matter to the jury, albeit that they had to approach the question with care and caution. Reference was made to Lord Justice General Rodger at pages 100 to 101 of Fox v HM Advocate 1998 J.C. 94. It was for the jury to decide if they were satisfied that there was an underlying unity of purpose, and that Charges 1 and 3 represented subordinates in the underlying unity. The appellant's second ground of appeal was accordingly without merit.
[28] The appellant's first ground of appeal was also misconceived. If the jury had heard evidence relating to Charge 2, it was available for their consideration, provided that they were satisfied that the evidence was relevant. It was the Crown's position that the complainer M's evidence was relevant to the question of an underlying unity of purpose. As was made clear in Dickson on Evidence, paragraph 1, the first important rule of evidence was that the evidence must be relevant. If the evidence was relevant, and if the evidence did not breach any exclusory rule, then the evidence was available to the jury. This was not a situation of a "crime not charged", where there might be prejudice to the accused because there had been no fair notice that the evidence might be led. Nor could the jury, in compliance with the sheriff's directions, rely upon the evidence if they disbelieved the complainer M. Thus there was no basis upon which the evidence should be disregarded unless that evidence had ceased to become relevant to Charges 1 and 3: but it was the Crown's contention that the evidence was clearly relevant to the issue of an underlying unity of purpose. In Dumoulin, the accused was alleged to have pushed his wife over the Salisbury Crags with a view to obtaining certain insurance policy proceeds. It was held that evidence relating to the related insurance fraud in Germany was relevant for the jury to consider in the murder trial, although the court had no jurisdiction over the insurance fraud itself. In Joseph, one charge related to activities in Belgium over which the court had no jurisdiction, but the conduct referred to in that charge was relevant to the other charges, and was permitted to be led before the jury. In the present case, the underlying unity of purpose could be established by independent evidence (for example, M's evidence about what had happened to her), or by the evidence of complainers (P and E, about what had happened to them).
[29] In relation to the appellant's third ground of appeal, the sheriff had simply given a standard direction, which was in effect that if they accepted that the necessary connections had been proved, and if they decided to apply the Moorov doctrine in accordance with his directions, then there was a sufficiency of evidence. That approach could not be criticised.
Reply on behalf of the appellant
[30] In relation to Fox, it was submitted that the dicta relied upon by the Advocate Depute were obiter, and that it would be straining matters to describe the evidence of a complainer in Charge 2 of the indictment as "circumstantial" in relation to what was said to have occurred in other charges. Either the jury had regard to the evidence, and used it as a link, or they put the evidence out of their minds. Dodds was an illustration of a problem which frequently arose in appeals, namely that time-gaps which appeared only as a result of a discriminating verdict of the jury were held by the appeal court to be untenable. While it was accepted that each case was fact-sensitive, Charge 1 related to one incident alone, then there was a passage of time of at least 4 years 4 months, and then a series of incidents (Charge 3). In such circumstances the Moorov doctrine should not be applied.
Discussion
[31] It is the function of the jury, properly directed, to assess the evidence and to decide whether or not various incidents involving the appellant were so linked in time, character and circumstances as to demonstrate a course of criminal conduct and a unity of purpose such that it would be appropriate to apply the Moorov doctrine and find mutual corroboration established: Sinclair v HM Advocate 1990 S.C.C.R. 412. The appeal court is reluctant to interfere in such matters, but may do so where, for example, there has been a misdirection; or where, following upon a discriminating verdict of the jury convicting of some charges but not others, certain time-lapses emerge between the various incidents which are so excessive in the circumstances that the law would not permit the application of the Moorov doctrine: cf Lord Justice Clerk Gill in Dodds v HM Advocate 2002 S.C.C.R. 838, at paragraph [7].
[32] In the present case, the appellant contends that there was a misdirection in that the jury should have been instructed that, in the event of an acquittal (for whatever reason) of Charge 2, they could not as a matter of law convict the appellant of Charges 1 and 3, standing the extended lapse of time between the relevant behaviour and the fact that the character and circumstances of the conduct were not so similar as to outweigh that extended time-lapse. Particular criticism is made of the sheriff's direction that, in the event of an acquittal of Charge 2 concerning the complainer M, they could nevertheless use M's evidence for the purpose of corroborating the other two complainers P and E in respect of Charges 1 and 3. Further, the appellant argues that, as the jury's reasoning underlying the acquittal of Charge 2 can never be known, it is possible that the jury rejected M as incredible or unreliable (hence the acquittal) yet in some way relied upon M's evidence as an evidential link assisting in the application of the Moorov doctrine in respect of Charges 1 and 3.
[33] We deal with the appellant's submissions under four sub-headings, namely type of conduct; lapse of time; the use of M's evidence despite an acquittal of Charge 2; and the jury's verdict in this case.
Type of conduct: There are many variations in the type of conduct amounting to lewd and libidinous practices: cf Lord Justice General Hope in McMahon v HM Advocate 1996 S.L.T. 1139, at page 1142G-J. In the present case, we are not persuaded that the conduct libelled in Charge 3 was anything other than a variation or development of the conduct libelled in Charge 1 and/or 2. It was, rightly, not suggested that the difference in legal foundations of charges at common law and under statute of itself excluded the operation of the Moorov doctrine.
Lapse of time: For present purposes, it is assumed that evidence led in support of Charge 2 is to be left out of account, leading to a lapse of time between the behaviour libelled in Charges 1 and 3 of at least 4 years 4 months. As was emphasised in Dodds v HM Advocate, cit. sup., and Stewart v HM Advocate, cit. sup., there is no specific time-period beyond which the Moorov doctrine cannot be applied. It is true that where the time-lapse is substantial, great caution must be exercised in the application of the doctrine: Ogg v HM Advocate 1938 J.C. 157. Nevertheless the similarities in character and circumstances may be so great that the evidence may, as a matter of law, properly be left to the jury for their assessment and their decision whether or not to apply the Moorov doctrine.
[34] In the present case there were, in our view, striking similarities in character and circumstances between the conduct described by the complainer P in respect of Charge 1, and the conduct described by the complainer E in respect of Charge 3. Each complainer was a young niece of the appellant's partner. Each was under the age of 16. Each was, at the relevant time, visiting and staying overnight in her aunt's home. Each was dressed in her night-clothes and lying in bed either asleep or apparently asleep. Each was subjected to precisely the same modus operandi on the part of the appellant, namely his waiting until the complainer was asleep in bed, then his disturbance of her bedclothes and reaching underneath her night-clothes in order to handle the complainer's naked private parts, progressing (in the case of E) to digital penetration of the vagina. In our opinion the similarities in character and circumstances were so pronounced that the evidence of P and E was properly left to the jury for their assessment as to whether or not to apply the Moorov doctrine.
The use of M's evidence, despite an acquittal of Charge 2: It is well-settled that evidence led principally in relation to a charge of which the accused is ultimately acquitted may nevertheless be relevant to the jury's consideration of other charges. For example, a charge may be included for what is known as "evidential reasons". In other words, it is recognised that the accused may not ultimately be convicted of the charge (because, for example, there is no jurisdiction; or because full legal proof cannot be achieved or the prosecutor withdraws the charge for tactical purposes); yet it is necessary or helpful to lead the evidence either as background, or to give a coherent sequence of events, or for some other reason: cf Dumoulin v HM Advocate, cit. sup.; HM Advocate v Joseph, cit. sup. That latter category may, in certain circumstances, extend to providing corroborative evidence for another charge or charges. In the present case, had there been a charge of lewd and libidinous conduct on the part of the appellant against M said to have occurred during a holiday with her aunt J in England, the appellant could not have been convicted of that charge even if there had been no doubt about the precise date of the incident, because the Scottish criminal courts have no jurisdiction over events in England. Nevertheless evidence from M about the type of behaviour indulged in by the appellant towards her while she was visiting her aunt J and sleeping overnight in her aunt's premises would, in our view, be competent and admissible for the jury's consideration. The jury would be entitled to consider that evidence and to assess whether it demonstrated similarities in time, character and circumstances to the other evidence led in respect of Charges 1 and 3, and if so, to apply the Moorov doctrine to both that and the other evidence. Thus M's evidence, if believed, would in our view properly be available to the jury in considering the chronology, character and circumstances of the conduct described by the complainers, namely his fascination with and handling of the naked private parts of his partner's young female relatives when they visited their aunt (his partner), stayed overnight, and were asleep in bed in their night-clothes in his partner's home. In the same way, M's evidence in respect of Charge 2 in the present case was available for the jury's consideration, even although the appellant was not ultimately convicted of that charge. It was, if believed, direct evidence going to proof of conduct underlying and connecting the several charges.
[35] It will be seen therefore that we do not accept that the sheriff erred in his approach to M's evidence, and in particular in his directions at pages 21 to 22 of the charge.
The jury's verdict in the present case: On behalf of the appellant, it was submitted that as the jury's reasoning could not be known, there was at least a possibility that they had disbelieved M and yet had used M's evidence as corroborative of the evidence of P and E.
[36] In our opinion, that argument is without merit. It must be assumed that the jury obeyed the sheriff's directions. On that basis, if the jury did not consider M to be credible and/or reliable, they would, in obedience to the sheriff's charge at page 5, put her evidence out of their minds completely, and would not rely on it for any purpose. They would then turn to consider the evidence given by P and E in relation to Charges 1 and 3. As indicated above, we consider that neither the types of conduct involved in those charges nor the lapse of time between the events libelled in the charges would in law prevent the jury from reaching a view that the Moorov doctrine was applicable and that the evidence of P corroborated the evidence of E, and vice versa. On that approach, the verdict reached by the jury would demonstrate their acceptance of the evidence of each of P and E, and further their decision that there was such a similarity in character, circumstances and time as to give rise to the inference of a course of criminal conduct and a unity of purpose such as to permit the application of the Moorov doctrine. Following this route, the result would be an acquittal of Charge 2, and convictions in respect of Charges 1 and 3.
[37] If, on the other hand, the jury believed M and accepted her evidence as both credible and reliable, but on the basis of that evidence could not be sure beyond reasonable doubt whether M had been aged under 12, or 12 or over at the relevant time (because M herself, doing the best she could, simply could not remember precisely when the incident occurred), then the jury would follow the careful direction given by the sheriff at page 21 of his charge, namely:
"If you decide that M was telling the truth about what the accused did to her but you are unable to decide when it happened and for that reason alone [italics added] you would acquit, you may however use her evidence for the purpose of corroborating the other two girls if you were satisfied about the other matters I explained earlier when dealing with what is known as the Moorov principle, namely that the course of conduct is sufficiently linked in character, circumstances and time to disclose a course of conduct. The reason for that is that Moorov is dealing with a rule of evidence rather than looking particularly at the nature of the charges and as far as evidence is concerned, M's evidence would be available to you even if you couldn't tell precisely when the incident took place, whether before or after her 12th birthday."
The jury, in obedience to the sheriff's direction, would not have to put M's evidence completely out of their minds. They would be entitled to rely upon her evidence, and to use it as corroborative of the evidence of P and E, with the evidence of all three complainers being assessed by the jury in relation to time, character and circumstances, leading to their conclusion that there was a course of criminal conduct and a unity of purpose proved beyond reasonable doubt by corroborated evidence. In such circumstances, in obedience to the sheriff's directions, they would acquit the appellant of Charge 2 (as they were not satisfied beyond reasonable doubt as to M's age at the relevant time) and would convict the appellant of Charges 1 and 3.
Conclusion: In the result, we consider that the jury received proper and accurate directions, and that they reached a verdict entirely consistent with those directions. It is not necessary for this court to know precisely which route the jury adopted in reaching their verdict, as neither route can be criticised.
Decision
[38] For the reasons given above, the appeal is refused.