For the Appellant: Moir, Miss Mitchell; Balfour & Manson

For the Crown: Young, AD; Crown Agent

14 June 2007

Introduction

[1] The appellant was tried at Glasgow High Court in October and November 2005 on 13 charges of rape and other sexual offences involving nine complainers. Seven were young women. The other two were girls under the age of 16.

[2] The jury convicted the appellant by a majority verdict on only three of the charges, namely the following:

"(5) on an occasion between 1 May 1998 and 3 November 1999, both dates inclusive, the exact date being to the Prosecutor unknown, at [locus in Barrmill] you did abduct [complainer A] ... pretend to her that there was a warrant in force for her arrest and induce her to enter a marked police vehicle, convey her from [locus in Barrmill] to [locus in Beith] and there assault her, pull down her trousers ... and place a baton in her private parts to her injury ...

(7) on an occasion between 1 September 1999 and 17 December 1999, both dates inclusive, the exact date being to the Prosecutor unknown, at [locus in Kilwinning] you did use lewd, indecent and libidinous practices and behaviour towards [complainer B] ... a girl then over the age of 12 years and under the age of 16 years, and did repeatedly place your hand inside her trousers and attempt to touch her private parts, take hold of her hand, and attempt to place her hand on your private member: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, section 6 ...

(12) on 4 October 2003, at [locus in Irvine] you did assault [complainer C] ... and did attempt to pull down her trousers, and place your hand inside her trousers and pants and place your fingers in her private parts."

At the time of each of the alleged offences, the appellant was a serving police officer. From early 1996 to late summer 2002 he was a uniformed officer stationed at Kilbirnie. From summer 2002 to summer 2003 he was a plain clothes officer at Saltcoats. After that he was a uniformed officer stationed at Irvine.

The evidence for the Crown on charges (5), (7) and (12)

Charge (5)

[3] The complainer was aged 19 at the date of the incident. She had learning difficulties and was a drug user. She lived in Barrmill, a village close to Kilwinning. She said that when walking through the village, she came upon the appellant at the first locus libelled. He was sitting in a parked police van. He was in uniform. He told her that there was a warrant out for her. He said that his colleague WPC Fraser was in the van. The complainer knew the appellant. He had arrested her on warrants several times. He put the complainer into the rear of the van. WPC Fraser was not there. The van had no cage, which was unusual for a police vehicle.

[4] The appellant drove the complainer to the second locus libelled, which was a farm road in Beith. There he joined her in the back of the van. He took out his baton and committed the acts libelled. He then drove her back to Barrmill.

[5] The complainer was uncorroborated.

Charge (7)

[6] The complainer was aged 15 at the time of the incident. According to the trial judge, she was a good, clear and articulate witness. She had become involved in a sexual relationship with a man aged 42. She also abused alcohol. The appellant was one of the officers called to the scene when the complainer and the older man were found together in a public park in Dalry. To be kept away from the older man, the complainer was sent to Kilwinning to live with an aunt. The appellant and another officer went to the aunt's house to interview the complainer about the relationship. The appellant was in uniform. At his suggestion, the complainer went with him to her bedroom to speak privately. The complainer's aunt and the other officer stayed in the living room. The appellant then touched the complainer's inner thigh on top of her clothes. Among other acts, he took her hand and pressed it on his private parts. He tried to get her hand inside his trousers. He got her to hold his penis. He forced his hand down the inside of her trousers.

[7] The complainer was uncorroborated.

Charge (12)

[8] The complainer was 28 years old at the date of the incident. She had spent the earlier part of the day at the home of her next door neighbour in Irvine. They and others were watching a televised football match. The complainer drank a large amount of vodka. In the evening she went to a party at a nearby house at the locus libelled. She continued drinking and became angry. At about 10 pm she became involved in a fracas with another woman. She threw over the kitchen table and smashed dishes and glasses. The other partygoers were so alarmed that they went outside and telephoned for the police.

[9] The complainer then lay down on a sofa in the living room. The appellant and Special Constable Dominic Mongiardini were sent to deal with the incident. They were in uniform. The complainer did not know them. They carried her towards the front door as far as the foot of the stairs. The appellant then sent PC Mongiardini out to look for the complainer's partner. The complainer said that when she was alone with the appellant, he committed the acts libelled. She said that she then "freaked out."

[10] PC Mongiardini said that when he returned, he found the complainer where he had left her. The appellant told him that he was refusing to have any more to do with her as she had claimed that he had touched her up. The complainer was crying. She said "That dirty pervert touched me up." The complainer left the house. Her distress at the time was seen and remarked on by her partner and her next door neighbour, among others.

[11] The complainer went home and cried herself to sleep. She awoke during the night and telephoned the police to complain of "rape."

[12] The complainer handed over her clothing to the police for examination. At that stage she noticed that the zip pull in her jeans was missing. WPC Laura Thomson said that the complainer was surprised. The complainer said that the zip pull had been in place earlier in the evening.

The trial judge's charge

[13] All thirteen charges went to the jury. The trial judge divided the charges into three categories; namely, the three rape charges, the other penetrative sexual assault charges and the charges of indecency of one kind or another. He gave clear and accurate directions on the Moorov principle. He then directed the jury as to how they should apply that principle to those three categories as follows.

"The charges which are rape - that is to say, the three charges. Remember that I asked you to underline all of these words, assault, abduction and other words as they appeared. Now the reason you have done that already - the three charges of rape of [complainer on charge (1)], [complainer on charge (9)] and [complainer on charge (13)] can be used in accordance with this Moorov doctrine to corroborate one another - for that of course is this.

As far as [complainer on charge (1)] is concerned - and I will come back to that - there is only [complainer on charge (1)] to tell you about that. There is no corroboration of that charge at all from anybody and the only way that you can corroborate is if you use the two later charges to corroborate it - that is to say, [complainer on charge (9)] and finally [complainer on charge (13)].

You then have four charges which I have told you ... I am not going to repeat them again but you have got 3, 5, 11 and 12 which are what I call penetrative sexual assault charges. They can corroborate one another because they are of the same type, provided of course you find time, character and circumstances. The three rape charges I should have already mentioned can also be used to corroborate the penetrative charges because the rape charges are more serious and down the scale the penetrative charges are next and then finally you are left with the non-penetrative - simple indecent, however unpleasant it was, but it has to stand on a scale of seriousness and it is lower on the scale of seriousness than these other charges I have given you which are 2, 4, 6, 8, 10 and 7.

They can be used individually to corroborate one another and of course they can also be supported by the penetrative charges and they can also be supported by the rape charges. So, you can use the Moorov doctrine in that way if you find that it applies in this case on the evidence.

Now, I have a couple of qualifications to make about that and I think that they will be obvious to you. In this case I have said to you the greater can corroborate the lesser but not the other way around ... "

[14] The trial judge considered that there was sufficient evidence on charge (12) for it to stand alone and he charged the jury to that effect. He recognised, however, that it was also part of what he describes as the "Moorov web of related charges" (Report, p 6).

The views of the trial judge

[15] The trial judge reports that when the verdict was given he was troubled as to whether it could properly stand. He remains of that view. He says that the jury were entitled to believe all three complainers, since none of them was so inherently incredible as to be unworthy of belief. However, he observes that the complainer on charge (7) was not fully believed, the jury having convicted on charge (7) only in the alternative. He also observes that all of the complainers gave a number of statements, used at the trial, that revealed many contradictions.

[16] He comments that if the jury considered charge (12) to be a stand-alone charge, they were entitled to convict on it. He considers that charge (12) could not be used to corroborate either charge (5) or charge (7) by reason of the interval of time.

Submissions of counsel

[17] Counsel for the appellant did not challenge the trial judge's charge in any respect. He submitted that charges (5) and (7) depended for proof on the Moorov principle. He accepted that on charge (12) there was sufficient corroboration of the complainer's evidence in the evidence of distress and the evidence relating to the broken zip. He submitted however (a) that the evidence of the complainer on charge (7) could not corroborate that of the complainer on charge (5) or on charge (12) because the evidence on the lesser charge could not corroborate the evidence on the greater (Brown v HM Adv, 1970 SLT 121, Lord Justice Clerk Grant at p 122; Walker and Walker, Evidence, 2nd ed, para 5.10.2); and (b) that there was an insufficient relationship of circumstances, character or time between charges (5), (7) and (12) for there to be mutual corroboration at all. Charge (5) related to abduction and a premeditated sexual assault at a remote place with the forcible use of a weapon. Charge (7) related to an opportunistic act of indecency with an unresisting minor in her own house when two people were in the next room. Charge (12) involved a clandestine indecent assault on a sleeping woman in her neighbour's house. The evidence on charge (5) could corroborate the evidence on charge (7); but the evidence on charge (7) could not corroborate the evidence on charge (5). Charge (5) could be corroborated only by the evidence on charge (12). However, there were insufficient similarities between them for Moorov to apply. If charge (5) failed for lack of corroboration, it could not corroborate charge (7) (Reid (CT) v HM Adv, 1999 SCCR 769). In turn charge (12) could not corroborate charge (7) since there were insufficient similarities between them. The trial judge directed the jury that there was sufficient evidence to entitle them to convict on charge (12); but he also directed them that if they did not accept the evidence of distress and the evidence about the damage to the complainer's zip, they could find corroboration of that charge by the application of the Moorov principle. One could not tell on what basis the jury convicted. This case was similar to Dodds v HM Adv (2003 JC 8). There had been no basis for a submission of no case to answer because there was scope for the application of the Moorov principle. However, the convictions showed that the Moorov principle could not properly have been applied to the evidence.

[18] The advocate depute submitted that there was sufficient similarity of time, character and circumstances between charges (5), (7) and (12) for each to provide corroboration of the others. All three involved a male police officer who abused his position while in uniform in the course of his duty. All took place in the same area. All involved sexual abuse of a female complainer who was younger than the appellant and who was vulnerable at the time. All were opportunistic. In each case the appellant was able to use his position as a police officer to cause the complainer to be alone with him. Each charge involved interference with the complainer's private parts. To the extent that there were differences between the three charges, it was for the jury to decide to what extent they were material (Reynolds v HM Adv, 1995 SCCR 505). The argument for the appellant that the period between charge (12) and charges (5) and (7) was too long overlooked the fact that for one year of that period the appellant was a plain clothes officer at Saltcoats. Significantly, none of the charges related to that year. The trial judge had directed the jury that since charge (7) related to a non-penetrative sexual assault, the evidence in support of it could not provide corroboration for the penetrative charges, including charge (5). It was to be assumed that the jury followed that direction. They must therefore have taken corroborative support for charge (5) from the evidence on charge (12). In turn, they could find corroboration of the evidence on charge (12) in the evidence on charge (5). They could find corroboration of charge (7) in the evidence relating to charges (5) and (12). In any event, there was sufficient evidence on charge (12), which could stand alone.

Conclusions

[19] This appeal raises a question similar to that raised in Dodds v HM Adv (supra), with the added complication that the indictment in this case involved several sexual offences, some of them charged in the alternative. As in Dodds, it was open to the jury to find corroboration on any one charge in the evidence relating to one or more of the other charges. Accordingly, there could be no question of the trial judge's upholding a submission of no case to answer. But, as in Dodds, a problem has arisen in this case because the jury convicted on only some of the charges and it is argued that no two of those charges are sufficiently related in time, character and circumstances to be mutually corroborative. In these circumstances, in my view, it is for the court to decide whether the relationship in these respects between any two of the charges was sufficiently close to entitle the jury to find the necessary corroboration.

[20] In Dodds, there were seven charges of rape covering a period of over ten years, the latest date libelled being about twenty years before the trial. The court held that the dissimilarities in the character and circumstances of the charges on which the jury convicted, and the lapses of time between them, were such that the Moorov principle could not be applied.

[21] In the present case, counsel for the appellant argued that charge (7), the non-penetrative charge, could corroborate neither charge (5) nor charge (12), as the trial judge in effect directed; but that neither charge (5) nor charge (12) could corroborate charge (7), nor could they corroborate one another, because all three charges were so dissimilar.

[22] I do not accept the submission for the appellant. In my opinion, the evidence on all three charges was similar in several significant respects.

[23] In his report, the trial judge expresses the view that charge (12) could not be used to corroborate either charge (5) and charge (7) because of the interval of time. I regret that I differ from the trial judge on this point. In Dodds (supra), I expressed the view that there is no maximum interval of time beyond which the Moorov principle cannot apply and that even a long interval may be acceptable if there are other compelling similarities (at p 11G-H). This, I think, is such a case. I have mentioned the common features on which the advocate depute relied. Of these, the most telling, in my opinion, are (a) the pattern of conduct by which the appellant, in the course of his police duties, in each case brought about a situation in which he was alone with the complainer; (b) the fact that in each case the complainer was vulnerable, for one reason or another; and (c) the fact that in each case the appellant's acts involved interference with the complainer's private parts.

[24] In my view, these similarities in the character and the circumstances of the appellant's conduct in all three charges are such that corroboration can be found to exist even though charge (12) is separated from the latitudes in charges (5) and (7) by almost four years. In any event I consider that the lapse of time is much less significant in this case than it might otherwise have been since the incident to which charge (12) relates occurred not long after the appellant's return to uniform duty at Irvine after a period, to which none of the charges related, when he was a plain clothes officer elsewhere in Ayrshire.

[25] In the result, I accept the submission of the advocate depute that the evidence on charges (5) and (12) was mutually corroborative, and that the evidence on both charges was corroborative of the evidence on charge (7). I also consider that there was in any event sufficient evidence on charge (12) if it was looked at in isolation.

[26] In the course of his submissions the advocate depute suggested that where there were two charges of an indecent nature and there were the necessary similarities in the evidence on each, the evidence on the lesser charge could corroborate the evidence on the greater. That submission is contrary to Brown v HM Adv (supra), which has stood unchallenged for nearly forty years. It may be that in a case where there were compelling similarities, there could be something in the submission of the advocate depute, but that is not a point that we can entertain in this appeal.

Disposal

[27] I propose to your Lordships that we should refuse the appeal.

For the Appellant: Moir, Miss Mitchell; Balfour & Manson

For the Crown: Young, AD; Crown Agent

13 June 2007

[28] I agree that, for the reasons given by your Lordship in the chair, the appeal should be refused.

For the Appellant: Moir, Miss Mitchell; Balfour & Manson

For the Crown: Young, AD; Crown Agent

June 2007

[29] I agree with your Lordship's Opinion and with the disposal proposed.