APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Macfadyen Lord Johnston	[2007] HCJAC28 Appeal No: XC455/04   OPINION OF THE COURT   delivered by LORD OSBORNE   in   APPEAL AGAINST CONVICTION AND SENTENCE   by   F. J. K.   Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

 

Act: Wheatley, Q.C., Solicitor Advocate; Paterson Bell, Kirkcaldy

Alt: Stewart, A.D.; Crown Agent

 

 

8 May 2007

Background circumstances
On 13 May 2004 the appellant was convicted by a majority decision of the jury at the High Court at Glasgow of four charges. The terms of the charges, after deletions and amendments, were as follows:

"(1) on various occasions between 20 June 1983 and 17 May 1989, both dates inclusive, at (location A), (location B), (location C) and elsewhere you did use lewd, indecent and libidinous practices and behaviour towards SR, your niece, born 18 May 1997 ... and did rub your private member against her private parts, handle her private parts and hinder parts, place Vaseline on to her hinder parts, attempt to insert your private member into her private parts, insert your fingers into her hinder parts;

(2) on various occasions between 18 May 1989 and 17 May 1993, both dates inclusive at (location A), (location B), (location C) and elsewhere, you did use lewd, indecent and libidinous practices and behaviour towards SR, your niece, born 18 May 1977 ... then a girl of or above the age of 12 years and under the age of 16 years, and did (a) place Vaseline on to her hinder parts, insert your fingers into her hinder parts, take indecent photographs and (b) take video recordings of her, have sexual intercourse with her mother, AR ... in her presence and attempt to induce said AR to insert a carrot into said SR's private parts: CONTRARY to the Sexual Offences (Scotland) Act 1976, section 5;

(3) on various occasions between 18 May 1991 and 17 May 1993, both dates inclusive, (location B), (location A), and (location C), you did assault SR, your niece, born 18 May 1977 and did have unlawful sexual intercourse with her: CONTRARY to the Sexual Offences (Scotland) Act 1976, section 4; and

(4) on an occasion between 21 December 1992 and 20 December 1994, both dates inclusive, at (location B), you did use lewd, indecent and libidinous practices and behaviour towards AJR, your niece, born 21 December 1984 ... and did lift her upper clothing exposing her breasts, get into bed with her, place your hand inside her nightwear, and handle her buttocks, handle her private parts and insert your finger into her private parts."

On 10 June 2004, the appellant was sentenced to a total period of seven years imprisonment, five years being in respect of charges (1) and (4) and two years being in respect of charges (2) and (3), these periods of imprisonment being ordered to run consecutively.

On 26 August 2004, the appellant lodged a Note of Appeal against conviction and sentence. The Note of Appeal contains four grounds of appeal against conviction. Since ground 1 only was argued before us, it is necessary to note only the terms of that ground:

(1) The trial judge erred in repelling a submission of no case to answer. Properly understood there was insufficient evidence to entitle the jury to apply the Moorov doctrine to charges (1), (2)(a) and (4). The accounts given by each of the complainers was (sic) markedly different. That being so it could not be said that it was open to the jury to draw the inference that the offences were part of a single course of criminal conduct.

The circumstances of the offences, as described in the report of the trial judge, were as follows. The complainers in the case were both nieces of the appellant, a married man who had separated from his wife in the late 1980s. He had established a sexual relationship with his sister-in-law, AR, the mother of the first complainer, SR. This sexual relationship lasted for many years until the time when the abuse of his niece was revealed. The appellant was a businessman, with his own business premises. After separating from his wife, he lived at (location B), those business premises.

SR gave evidence to the effect that both her parents had worked for the appellant. They had separated. Both before and after her parents' separation, she spent a great deal of time in the company of the appellant. When she was about 6 or 7 years of age the appellant began abusing her in a sexual way. At that time her parents were living with the appellant and his wife and family at (location A). She recalled the first occasion on which she was abused. She was in a bedroom at that address which she shared with her cousin. She could not sleep. She went downstairs. The appellant was in the livingroom. She told the appellant why she could not sleep and he told her that he "could make it better". He took her to the downstairs toilet where he told her to lift her nightgown. She was wearing no other undergarments. He told her to bend over on her hands and knees on the floor. He then rubbed his penis between her legs at the back. She did not like what was happening and cried. The appellant told her that her whole life was planned out and what was happening to her was supposed to happen. She spoke of such conduct happening on a regular and persistent basis thereafter. The conduct complained of also took place in the appellant's business premises, (location B). She spoke of other types of sexual conduct. This persisted until she was about 9 years of age. Then the appellant penetrated her anally, with his fingers and thereafter with his penis. The appellant took indecent photographs and video recordings of her. She required to "do sexual things". While her parents were together they worked in one of the appellant's shops for long hours. The appellant picked up SR from school and took her to the shop in which he worked. He used to look after her. She would not be allowed out to play unless she submitted to the conduct referred to. When she was about 14 years of age the appellant had full sexual intercourse with her. He continued having sexual intercourse with her until she became pregnant with his child, which was born on 7 March 1996. She also spoke of engaging in sexual intercourse with the appellant when she was 14 years old, while in the same bed with her mother, who also engaged in sexual intercourse with the appellant. SR gave evidence with regard to the specific incident involving the use of a carrot as libelled in charge (2), when her mother was present. The sexual abuse had stopped after she had become pregnant.

The complainer in charge (4) AJR was also the niece of the appellant. Her father was the brother of the appellant's wife. She lived in a city some distance from where the appellant lived. During holidays or long weekends the family came to visit her aunt and the appellant. She seemed to enjoy the visits to the appellant's business premises. On one of these visits, when she was aged 8 or 9, the appellant had asked her if she would like to stay overnight with him. At that time he had separated from his wife and lived in the attic premises above the business premises at (location B). She agreed. The appellant with her there. They went upstairs, when the appellant sat on a chair and invited her to sit on his knee, which she did. She had then asked the appellant if she could go to the toilet. As she had to go downstairs for that purpose, and because it was dark, she asked the appellant to accompany her. When she sat on the toilet she saw that the appellant had been standing watching her. This made her feel uncomfortable. She then went upstairs to get ready for bed. While she was doing so, the appellant had lifted her T-shirt and looked at her bare chest. Nothing was said. The only bed was a mattress on the floor where both were to sleep. She got into bed and the appellant followed. She had turned to face the wall but became aware of the appellant placing his hand inside her shorts. She was shocked. The appellant said nothing but proceeded to touch her private parts and then insert his finger into her private parts. She had not reported the incident until much later, after speaking to her cousin. She did not return to stay with her uncle again.

Although there was evidence from AR, the mother of SR, there was no independent corroboration of the complainers' evidence in relation to charges (1) and (4). In the circumstances, the Crown had relied upon the application of the Moorov Doctrine. As regards charge (2)(a) that was, in essence a continuation of some of the conduct libelled in charge (1) after SR had reached the age of 12 years. Charge (2)(b) was the subject of corroborated evidence, the corroboration of the evidence of SR having come from AR.

 

Submissions on behalf of the appellant
The solicitor advocate for the appellant, at the outset, indicated that ground of appeal 1 only would be argued. Only the convictions under charge (1), (2)(a) and (4) were under attack. The convictions under charges (2)(b) and (3) were not under appeal. The essence of the appellant's position was that the Moorov Doctrine could not be applied in the circumstances of this case. The trial judge had erred in allowing charges (1), (2)(a) and (4) to go to the jury.

The solicitor advocate for the appellant then went on to draw attention to the terms in which the appellant had been convicted. He also reviewed the evidence of SR in detail, on the basis of the transcript of the evidence. The essence of her evidence has already been summarised. He pointed out that nowhere in her evidence was there any reference to Vaseline. He drew attention in particular to the evidence of SR at page 29 of the transcript of her evidence. He maintained that the reference on that page to "anal sex" referred to activity with finger and the penis. He also contended that the reference to being 14 years of age, in that passage of evidence, related only to the complainer's 14^th birthday. On that basis he contended that the timescale in relation to charges (1) and (2)(a) ran to 17 May 1992.

The solicitor advocate for the appellant next proceeded to examine the evidence of AJR, who had spoken to the single incident involved in charge (4). It was of importance that the evidence relating to charge (4) extended only to the insertion of a finger into the private parts, as opposed to the anus. That single occasion had occurred between 1 December 1992 and 20 December 1994.

It was submitted on behalf of the appellant that the evidence summarised from the two complainers was incapable of entitling a jury to apply the Moorov Doctrine. It was accepted that what had been said in Reynolds v Her Majesty's Advocate 1995 S.C.C.R. 504 was apt. It was accepted that the jury would be disentitled from considering the application of the Moorov Doctrine only if, on no possible view, could it be said that there was any connection between the two offences. Reference was also made to NKS v Her Majesty's Advocate 2006 SCCR 70. On the whole matter, it was submitted that the trial judge had erred in allowing the charges under discussion to be considered by the jury.

 

Submissions on behalf of the Crown
The Advocate depute submitted that the appeal should be refused. The appropriate test as to whether the trial judge had erred in allowing charges (1), (2)(a) and (4) to go to the jury for consideration was to be found in Reynolds v Her Majesty's Advocate. The question was whether, on no possible view, could it be said that there was any connection between the offences spoken to by the two complainers. It was submitted that there plainly was such a connection. That meant that these charges had properly been put before the jury, with appropriate directions, for their consideration as to whether the requirements of the Moorov Doctrine had been met in the circumstances. The similarities between the charges were inescapable. What had to be considered was whether there was an underlying unity of purpose. The Advocate depute referred to Moorov v His Majesty's Advocate 1930 JC 68 and, in particular, the observations of Lord Sands at pages 87 and 89. An approach had to be taken that embraced all the factors in the case. It was not appropriate to make fine distinctions as regards the particular kind of sexual activity involved in any incident. In relation to the evidence of SR, at page 29 of the transcript, the reference to "anal sex" ought properly to be read as a reference to penetrative penile sex, not mere digital penetration. In any event, such issues were matters for a jury.

In this case the jury had ample evidence demonstrating similarities between the appellant's conduct towards the two complainers SR and AJR. In particular, there was evidence concerning the age of the two complainers, their similar relationship to the appellant, the facts that the abuse was clandestine and conducted at the business premises of the appellant, the fact that it had commenced in a bedroom, the fact that it occurred at night when the complainers were in night clothes, the fact that the appellant had engineered circumstances in which he was alone with the complainers, and the details of the abuse itself. The private parts of one complainer had been touched as had the private parts and anus of another. Having highlighted these points, the Advocate depute accepted that there were certain differences between the evidence of the complainers. In the case of SR, there were long periods of repeated abuse; in the case of AJR there was abuse on one occasion only. However, that was not a fatal obstacle to the operation of the Moorov Doctrine in the circumstances. The Advocate depute accepted that there was no evidence regarding the use of Vaseline by the appellant and that references to Vaseline in the convictions would require to be deleted. In connection with his submissions, the Advocate depute relied upon NKS v Her Majesty's Advocate 2006 SCCR 70. There were similarities between that case and the present one. The Advocate depute also relied upon DA v Her Majesty's Advocate [2007] H.C.J.A.C. 8. It was evident from paragraph [10] in that case that evidence of a single incident from one complainer could corroborate evidence from another of a course of conduct. The case of KP v Her Majesty's Advocate showed that the Moorov Doctrine could be applied even where the nature of the sexual activity in each charge differed. In all the circumstances, the course taken by the trial judge was correct.

 

The decision
The ground of appeal under consideration in this appeal is focused upon the decision of the trial judge to allow charges (1), (2)(a) and (4) to go before the jury on the basis that the former two charges were spoken to only by the complainer SR and the latter charge was spoken to only by the complainer AJR. Thus the trial judge took the view that the Moorov Doctrine could be applicable as between these charges. The approach which this court requires to adopt was set out in Reynolds v Her Majesty's Advocate. It shows that the question is whether it can be said that, on no possible view, is there any connection between the charges in question. In the present case charge (4) refers only to a single incident occurring on one occasion only, whereas charges (1) and (2)(a) relate to various occasions throughout specified periods, in other words to a course of conduct. However, it is quite clear that, on the basis of NKS v Her Majesty's Advocate, a single incident may be capable of corroborating a course of conduct, by virtue of the application of the Moorov Doctrine. In these circumstances, the question is whether there existed here on the evidence, a possible connection between charges (1) and (2)(a), on the one hand, and charge (4), on the other.

In the course of the debate before us reference was made in some detail to the evidence of the complainers SR and AJR. Having regard to the features of similarity between the matters spoken to separately by the complainers, we have reached the conclusion without hesitation that it was proper for the trial judge to recognise a possible connection between the charges concerned. On the basis of what was said in Reynolds v Her Majesty's Advocate it follows that it was appropriate for her to leave the application of the Moorov Doctrine to the jury, assisted as they were by proper directions on that Doctrine. As we see it, the similarities founded upon by the Advocate depute amply justify the course taken. In particular, we see the ages of the two complainers as significant; also the fact that they were both nieces of the appellant; the fact that the abuse was clandestine and conducted at the business premises of the appellant; the fact that it commenced in a bedroom; the fact that it took place at night when each complainer was dressed only in nightclothes; the fact that the appellant engineered situations in which he was alone with the complainers, and also in the details of the abuse itself. In charge (4) the conduct complained of involved the lifting of the clothing of the complainer, the placing of the appellant's hand inside her nightwear, the handling of her buttocks, the handling of her private parts and the insertion of a finger into her private parts. In the case of charge (1) there was the insertion of fingers into the complainer's hinder parts and the handling of her private parts and hinder parts. In charge (2)(a) the insertion of fingers into the complainer's hinder parts was involved. We consider that the activity described in charge (4) bears a close similarity to the behaviour described in charges (1) and (2)(a).

In all these circumstances, the appeal against conviction must be refused. It was a matter of agreement that there was no evidence to support the allegation of the use of Vaseline referred to in charges (1) and (2)(a). Accordingly, we shall quash the convictions under those charges, but only to the extent that they contain the allegation "place Vaseline on to her hinder parts". Otherwise, the convictions are affirmed.