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CHARLES McKENNA v. HER MAJESTY'S ADVOCATE


APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lady Paton

Lord Mackay of Drumadoon

[2008] HCJAC 33

Appeal No: XC873/03

OPINION OF THE COURT

delivered by LADY PATON

in

NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE

by

CHARLES McKENNA

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent;

_______

Act: Brown; Wilson; Balfour & Manson LLP

Alt: Prentice ,Q.C. Advocate Depute; Crown Agent

18 June 2008

Introduction

[1] On 20 June 2003, the appellant (then aged 83) was convicted by majority verdict of the following offences:

"(21) On various occasions between 2 February 1976 and 8 December 1977, both dates inclusive, at Gartmore House (then known as St Ninian's List 'D' School) ... you ... did assault AB, born 7 August 1966 ... and then a boy under your charge and under the age of 14 years, sit him on your knees, seize hold of his trousers and pull the waistband and material thereof so that his private member and private parts were compressed and did on one occasion insert your finger or fingers into his hinder parts, all to his injury;

(24) On various occasions between 15 March 1977 and 23 March 1979, both dates inclusive, at Gartmore House ... you ... did assault CD, born 20 February 1967 ... and then a boy under your charge and under the age of 14 years, and did sit him upon your knees and press your clothed erect private member against his body, rub your erect private member against his clothed hinder parts, ... remove his trousers and underpants and did attempt to penetrate his hinder parts with your private member and thereafter did simulate sexual intercourse by pressing your private member between said CD's legs;

(25) On various occasions between 12 December 1979 and 23 December 1981, both dates inclusive, at Gartmore House ... you ... did use lewd, indecent and libidinous practices and behaviour towards EF, born 8 October 1969 ... and then a boy under your charge and under the age of 14 years, and did sit him on your knees, press your clothed private member against his body, place your hand beneath his clothing and handle his hinder parts;"

[2] On 15 July 2003, the appellant was sentenced to two years imprisonment.

Appeal

[3] The appellant lodged a Note of Appeal in the following terms:

"The above named convicted person appeals against conviction in respect that his conviction on said charge amounted to a miscarriage of justice on the following grounds:-

1. There was insufficient evidence to find the crime of attempted sodomy in charge 24 proved. The Crown relied upon the doctrine of mutual corroboration in respect of the evidence in charges 21 and 25 concerning lewd and libidinous behaviour. This conduct consisted of placing the complainer on his knee and of digital penetration in charge 21 and of pressing against the complainer in charge 25.

2. The learned trial judge erred in directing the jury that they were entitled to find the attempted sodomy part of the same course of conduct. "Now, if you regard this further conduct - the pulling the trousers down and attempt[ing] to insert the penis - simply as a development or progression of the knee sitting type of behaviour, then you may be entitled to regard it as the same ... as of the same character - in other words as still being part of the same course of conduct." (Charge p.75). The difference in character was such that it was a matter for the judge to remove the application of mutual corroboration from consideration by the jury."

[4] In January 2004 the appellant was granted interim liberation pending the resolution of his appeal.

The judge's charge
[5] At pages 75 to 76 of his charge, the judge directed the jury in the following terms:

"Now, if you regard this further conduct - the pulling the trousers down and attempt[ing] to insert the penis - simply as a development or progression of the knee sitting type of behaviour, then you may be entitled to regard it as the same ... as of the same character - in other words as still being part of the same course of conduct - but if you view it as some form of separate or isolated conduct which is different in character from the sitting on the knee type of behaviour, then the short point there is that it cannot be corroborated because there is nothing else of that nature with which to compare it.

Now, in that regard, ladies and gentlemen, I direct you that an act of digital penetration is not of the same character as an act of attempted penetration with a penis. If that is all you are looking for - if you're looking at these two acts in isolation - these are not of the same character, but if you look at the other surrounding facts and circumstances, they may be, if the one is a progression of the other - if they're all really type ... all part of the same type of general sitting on the knee, fondling, type behaviour ..."

The judge's report
[6] The judge gave the following details in his report:

"CHARGE (21)

The complainer AB was then one of twins and known as C. He was born on 7 August 1966 and had entered St Ninian's when he was only eight or nine years of age (1974-5). He attended the appellant's woodwork classes.

According to AB, whose evidence was in very short compass, the appellant sat him on his knee during the class, whilst he smoked cigars, and offered him Tunes sweets. On one occasion, he put his hand down the back of AB's shorts and inserted his finger into his bottom. This had been painful. On two other occasions, he pulled his shorts up tight into his bottom, again while smoking a cigar. These incidents all happened during class; that is to say with other pupils present.


CHARGE (24)

CD, a friend of the...twins during their time at the school, was born on 20 February 1967 and attended St Ninian's from some time in 1977 until March 1979. According to CD, on one occasion behind the door of the woodwork classroom, the appellant had pulled CD's trousers down and tried to place his (the appellant's) penis into CD's bottom, but had been unable to do so. He rubbed his penis between CD's legs. He whispered things into CD's ear calling him his wee petal or flower. As a regular occurrence in the classroom, the appellant would come up behind him and rub himself against him. He would also get the boys to sit on his knee and light his cigar. On one or two such occasions, CD thought the appellant had a degree of erection. The sitting on the knee episodes happened whilst the other pupils were present.

CHARGE (25)

EF was born on 8 October 1969 and had been a resident at St Ninian's from 12 December 1979 until 23 December 1981. He was thus ten when he started and twelve when he left. He spoke to boys sitting on the appellant's knee in the woodwork class. He said that when he (EF) did this, the appellant would put his hand down the back of his trousers and fondle his bottom. The rest of the class would not see this because of the angle at which he was positioned. Also, when EF was standing at a work bench, the appellant would stand behind him with his (the appellant's) groin touching him."

Submissions for the appellant
[7] Mr Brown submitted that the judge had erred in directing the jury that the alleged attempted sodomy could be regarded as part of the same course of conduct outlined in Charges 21, 24 and 25. The attempted sodomy was of a sufficiently different character and sufficiently different in gravity (i.e. a more serious offence) as not to amount to a progression of the other conduct. The judge had erred in refusing to remove the last few lines of Charge 24 (namely, from the words "remove his trousers" to and including "between CD's legs") following upon a common law submission made by the appellant's counsel at the end of all the evidence. Moreover the judge had erred in directing the jury that they could find corroboration of the attempted sodomy by the application of the Moorov doctrine. The conviction on Charge 24 should be restricted accordingly.

[8] It was accepted that there were some similarities with the other behaviour libelled: for example, the locus was the same and pupils of St Ninian's were involved. But by contrast with the other behaviour, the attempted sodomy was alleged to have taken place when no other pupils were present. It was alleged that the appellant had undressed the complainer, and that the appellant himself was in a state of undress, with his penis exposed. Thus while there were clear similarities such as the sitting of the pupil on the appellant's knee, and the touching under clothes, the attempted sodomy stood out in the factual context in which it was alleged to have occurred.

[9] Counsel also accepted that each case relying upon the Moorov doctrine turned on its own facts and circumstances. There were various reported decisions, in some of which an underlying unity of purpose was held to be established, in others, not. On the basis of the authorities, there was a great similarity between indecent conduct and lewd and libidinous conduct. But that tended to emphasise the distinct nature of the last few lines of Charge 24. Reference was made to McMahon v HM Advocate, 1996 S.L.T. 1139, in which the Moorov doctrine had been applied where there had been an assault with intent to rape, and lewd and libidinous conduct by inserting a finger in the complainer's private parts. That authority was at first sight unhelpful to the appellant, but it could be distinguished in that, on the evidence in McMahon, there had been an assault with intent to rape which did not involve much force: thus on the evidence in that case there had been a diminution in the gravity of that offence. By contrast, in the present case, the trial judge in his charge had ruled out the possibility of equating digital penetration with attempted sodomy. Thus on the facts of this case, it was not open to any jury to convict of attempted sodomy, and that part of the libel in Charge 24 should have been taken away from the jury.

[10] In Murphy v HM Advocate, 2002 S.C.C.R. 969, a case involving indecent assault, Lord Coulsfield observed in paragraph [2] that Charge 4 in that case contained a substantially more serious charge than Charges 3 and 5, as Charge 4 was one of attempted sodomy, whereas Charges 3 and 5 involved masturbation and other indecent acts. The same sort of approach should have been adopted in the present case. In HM Advocate v Brown, 1970 S.L.T. 121, it was held that a more serious offence (such as incest) could corroborate a less serious offence (such as lewd and libidinous conduct); but not vice versa. That ratio was relevant in the present case. The attempted sodomy in Charge 24 was more serious than the behaviour libelled in the other two charges, and could not be corroborated by the less serious behaviour.

[11] Furthermore, there was a need for caution when applying the Moorov doctrine: O'Neill v HM Advocate, 1995 S.C.C.R. 816 (citing the dicta of Lord Justice Clerk Aitchison in Ogg v HM Advocate, 1938 J.C. 152 at page 158). The necessary interrelation could not be found in the present case. For example, unlike the other behaviour complained of, there were no other pupils present when the alleged attempted sodomy occurred. There had been no lead-up by sitting the pupil on the appellant's knee. Reference was made to Sinder v HM Advocate, 2003 S.C.C.R. 271; Dodds v HM Advocate, 2002 S.C.C.R. 838; and JAB v HM Advocate, 2004 S.C.C.R. 127, in particular paragraph [4]. It followed that the trial judge in the present case had misdirected the jury at pages 75 to 76 of the transcript.

Submissions for the Crown
[12] The Advocate Depute referred to the evidence led in support of Charges 21, 24 and 25, as set out in the trial judge's report. The trial judge was entitled to advise the jury that they could form the view that there had been a course of criminal conduct, despite the labels which the criminal law might use: McMahon v HM Advocate, 1996 S.L.T. 1139. The test was whether, on no possible view, could it be said that there was any connection between the offences spoken about by the complainers: FJK v HM Advocate, 8 May 2007. In the present case, what emerged was a course of sexual abuse of young boys, all pupils in the appellant's care at St Ninian's. Where sexual abuse of children was in issue, the law did not require the particular conduct to be too precise. The doctrine of mutual corroboration could apply in respect of the rape of a young girl, and the sodomy of a young boy: cf. Lord Sutherland's charge in KP v HM Advocate, 1991 S.C.C.R. 933. In relation to the gravity of the offences charged in the present case, it was arguable that actual penetration with a finger (causing pain) was more serious than attempted sodomy with a penis. It was a matter for the jury: Reynolds v HM Advocate, 1995 S.C.C.R. 504. The trial judge had applied the correct test. It was for the jury to assess the evidence. If they accepted the evidence, it was open to them to conclude as they did.


Discussion

Ground of Appeal 1

[13] It is contended that there was in law an insufficiency of evidence in relation to the attempted sodomy libelled in the latter part of Charge 24. It is argued that the alleged behaviour was of such a different character from, and so much more serious than, the other behaviour libelled in the relevant charges that the doctrine of mutual corroboration could not be applied. That would leave the allegation of attempted sodomy without corroboration, and the latter part of the libel in charge 24 should not, in law, have been permitted to go to the jury for their consideration.

[14] Whether separate incidents of behaviour can be regarded as so connected in time, character and circumstances as to justify an inference that they are parts of a course of criminal conduct systematically being pursued by an accused such as to qualify for the application of the Moorov doctrine must always be a question of fact and degree: McMahon v HM Advocate, 1996 S.L.T. 1139. Circumstances such as the place, the time, the relationship between the persons involved, the nature of the approach leading up to the criminal conduct, and character of the criminal conduct itself, are all matters which may be taken into account: Moorov v HM Advocate, 1930 J.C. 68. Provided that there is in law a sufficiency of evidence, decisions about what evidence to accept, and whether there is discernible in that evidence an underlying unity of purpose such that the doctrine of mutual corroboration may be applied, are matters entirely for the jury, properly directed: JAB v HM Advocate, 2004 S.C.C.R. 127. Further, it is well established that the nomen juris of the criminal behaviour is not the decisive factor: McMahon v HM Advocate, cit. sup. Rather it is the nature of the offending behaviour which should be examined.

[15] In our view, the offending behaviour libelled in Charges 21, 24, and 25 involved certain features which would permit a jury to form the view that there was a pattern of criminal behaviour, an underlying unity of purpose, such that the doctrine of mutual corroboration could be applied in respect of those charges if the jury so chose. In particular the charges related to the period 1976 to 1981. Each charge involved a young male pupil at St Ninian's List D School within the age range of 9 to 12 years; the appellant acting in his capacity as a member of the school staff (woodwork instructor), having authority over those pupils; the appellant making physical approaches to a pupil in his woodwork class in a way which demonstrated his attraction to and fascination with the pupil's hinder and private parts - for example, sitting the pupil on his knees, handling the pupil's hinder parts over or under clothing; interfering with the pupil's trousers by, for example, pulling at the material and compressing the pupil's private parts, or by removing the trousers; pressing or rubbing his lower body (clothed or unclothed, sometimes with a degree of erection) against the pupil's lower body (clothed or unclothed); and in the case of Charges 21 and 24 penetrating or attempting to penetrate the pupil's naked hinder parts, the penetration by using a finger and the attempted penetration by using his penis.

[16] The pattern of behaviour described above emerged in our opinion from Charges 21, 24 and 25, and from the evidence led in support of each charge. Thus in the particular circumstances of this case we do not accept that the actings attracting the nomen juris "attempted sodomy" were so different in character from the other activities libelled as "indecent assault" or "lewd and libidinous behaviour" such as to disentitle the jury from applying the Moorov doctrine if they so chose, depending of course upon what evidence they accepted. Nor, in the circumstances of this case, do we accept that the attempted sodomy libelled was as a matter of law graver than the actual digital penetration libelled. It was in our view open to the jury to conclude, as a matter of fact and degree, that the digital penetration referred to in Charge 21 (described by the complainer as painful) was as grave as, or possibly graver than, the attempted penile penetration referred to in the latter part of Charge 24. Thus in the circumstances of the present case, the guidance given in HM Advocate v Brown, 1970 S.L.T. 121, relating to the greater including the lesser but not vice versa, did not in our opinion present an obstacle to the application of the Moorov doctrine. We therefore conclude as a matter of law in the present case that the part of Charge 24 relating to attempted sodomy was capable of being proved by reliance on the doctrine of mutual corroboration: cf Lord Justice General Cullen at paragraph [8] of JAB v HM Advocate, cit. sup.

Ground of Appeal 2
[17] Turning to the second ground of appeal, we do not accept that the trial judge's charge on this matter contained any misdirection. At pages 31 to 38 of his charge, the judge gave clear and detailed directions about the Moorov doctrine. Later at pages 72 to 80, he gave directions as to the approach to be adopted in relation to the three charges faced by the appellant. Only one part of the latter directions is criticised.

[18] In our opinion, the charge when read as a whole clearly focuses on the need for the jury to consider whether the actings constituting the attempted sodomy complained of by the complainer in Charge 24 were of the same character as the actings complained of by the complainers in the other two charges such that the jury could be satisfied that there was a course of criminal conduct systematically being pursued by the appellant. Furthermore the judge made clear to the jury that, in the event that they disbelieved or rejected evidence such that they were left with allegations of isolated or unrelated instances of criminal behaviour, one involving digital penetration, and one involving attempted sodomy, not forming parts of a pattern of similar behaviour demonstrating an underlying unity of purpose, then they could not find those activities in isolation sufficiently similar in character as to permit the application of the Moorov doctrine.

[19] We therefore reject the second ground of appeal.

Decision

[20] For the reasons given above, we refuse the appeal against conviction. The appeal against sentence will be heard on another date.