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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. T Mck, Mjc And Ja Mck [2007] ScotHC HCJ_17 (22 August 2007) URL: https://www.bailii.org/scot/cases/ScotHC/2007/HCJ_17.html |
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HIGH COURT OF JUSTICIARY [2007] HCJ17 |
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OPINION BY LORD BRODIE in the Minute by T. McK in the cause HER MAJESTY'S ADVOCATE against T. MCK., M.J.C. and J.A.MCK ________________ |
Minuter (First Accused): Moir; Brian Gregg, Solicitors
Crown:
Ablett, AD; Crown Agent
The indictment
[2] Charge (1) on the
indictment is subject to certain bail aggravations relating to the second and
third accused. Ignoring these bail aggravations,
charges (1) and (3) on the indictment are in the following terms:
"(1) on 7
and
... and
(3) on
3 February 2007 at 22 Waverly Road, Paisley, you T. McK did, whilst
acting with another whose identity is to the Prosecutor meantime unknown, force
entry to the house there, occupied by Gary McKay, and did there assault
said Gary McKay, repeatedly strike him on the body with knives or similar
instruments all to his severe injury and to the danger of his life and did
attempt to murder him."
The argument
[3] The
basis of the submission made on behalf of the Minuter lay in an assessment of
the evidence available to the Crown in support of charge (1). The position set out in the Minute lodged on
behalf of the Minuter and developed by Mr Moir in submission was that
there was simply no corroboration whatsoever of the complainer's account
insofar as it related to the Minuter (the position was different in relation to
the second and third accused). The
inevitable outcome if the Minuter went to trial on the present indictment would
be that, in the event of the Crown insisting on charge (1), a submission
of no case to answer would be made and would succeed. However, by that time the jury would have
heard evidence implicating the Minuter in the assault and robbery of the
complainer in that charge. That could
not but prejudice their minds when considering charge (3), for which
Mr Moir accepted there was corroboration.
No direction that the trial judge might give could cure that prejudice. Given the absence of corroboration for
charge (1) if considered in isolation, Mr Moir anticipated that the
Crown would rely on the doctrine of mutual corroboration as between
separate charges associated with the decision in Moorov v HMA
1930 JC 68. It was Mr Moir's
submission that while what was alleged in charge (1) occurred close both
in time and as to locality with what was alleged in charge (3), there was nevertheless no sufficient nexus
between the two charges as to allow the doctrine to be applied, as the Crown
was or ought to be aware. Accordingly,
by seeking to lead evidence in support of both charges at one trial in
circumstances where it was clear that it would not be able to ask for a
conviction on charge (1) in respect of the Minuter, the Crown was acting
oppressively. The court has the power to
prevent this. Mr Moir did not
suggest that the Minuter should not be tried, together with the second and
third accused, on charge (1) but he submitted that this should be
separated from the Minuter's trial on charge (3) (in respect of which only
he is currently indicted).
[4] The Advocate Depute took no issue with Mr Moir's underlying approach: that if the court was satisfied that there was indeed no corroboration available to support the complainer's account of the Minuter's involvement in charge (1) it would be entitled to separate the charges with a view to avoiding the unfairness of leading evidence of an offence which could not be proved at the trial where another offence, in respect of which there was a real issue, was also charged. However, it was the submission of the Advocate Depute that there was a sufficiency of evidence for charge (1). That was so if the charge was considered in isolation but this was also a case where charge (1) taken with charge (3) afforded mutual corroboration one for the other.
The evidence
[5] The argument outlined above
could only of course be advanced on the basis of an agreement between the
parties as to what was the evidence available to the Crown. It was with a view to establishing what it
was that, on the basis of precognition, the Crown might be able to prove that
the preliminary hearing had been continued from
Charges (1) and
(2)
[6] Prior to the incident forming
the basis for charges (1) and (2), the complainer Richard Manser
had for some three years been involved in a relationship with the third
accused, J. McK. The Minuter,
T. McK is the father of J. McK, and is also known to the complainer. At the time of the incident which is the
subject of charges (1) and (2) the second accused M. J. C. was the
boyfriend of J. McK.
[7] The locus of the incident was Richard Manser's
home at 70A
[8] Officials
of the Bank of Scotland are able to confirm that the following withdrawals were
made from the complainer's account, using the bank card taken from the
complainer's house: 1. 2125 hours on 7 December 2006 -
£200 withdrawn from Bank of Scotland ATM in Glasgow Road, Paisley; 2.
2127 hours on 7 December 2006 - £100 withdrawn from Bank
of Scotland ATM in Glasgow Road, Paisley; and 3. 0037 hours on 8 December 2006 -
£300 withdrawn from Bank of Scotland ATM in Neilston Road, Paisley. Thus a total of £600 was withdrawn. The first ATM is very close to the
complainer's house. The second ATM on
[10] At around 0040 hours on
[11] Various personal papers, the complainer's diary, and a collection of pornographic films were packed into polythene bags and all three intruders collected the bags, their used drinks cans, cigarette ends and left the house.
[12] The complainer freed himself from the ties, and removed the tape and sponge from his head and mouth. He looked out of his window and watched the three intruders walk away. He then telephoned the police and an ambulance. At about 0100 hours police officers were instructed to attend at the complainer's house and did so. They found the complainer there, injured, with cable ties on his wrists and tape around his neck. He gave the officers an account of what had happened, naming T. McK. and J. McK. as being involved, together with a male called M.
[13] The complainer was taken by ambulance to the
[14] It
was established that J. McK. was residing at a flat in
[15] A
warrant was obtained for a search of J. McK.'s house and at about
1525 hours on
1. A white coat with hood, found on top of chest of drawers in main bedroom. This was subsequently shown to the complainer and he identified the coat as that worn by J. McK. during the incident.
2. A pair of grey tracksuit bottoms found on top of the chest of drawers under the white coat in the main bedroom. These were subsequently shown to the complainer and he identified them as the bottoms worn by the person referred to as "M.".
3. A pair of black Adidas tracksuit trousers found on the floor of main bedroom. Within the rear pocket was found a cigarette packet containing £565 in cash. Within the left hand pocket there was £7.76 in coin.
[16] A
forensic examination of the black tracksuit trousers was carried out, and a
blood stain was identified. DNA was
extracted from the bloodstain. That DNA
matches the complainer's DNA. Further
DNA matching that of J. McK. and M.J.C. was identified on the tracksuit
trousers.
Charge
(3)
[17] The locus of the incident which forms the
basis of charge (3) is the flat in
[18] At
about 2310 hours on
[19] About 2330 hours, same day, Mr McKay and Ms Blane were still within their home watching television with their children sleeping in the bedroom, when their front door was forced open by two males in possession of large kitchen knives. Both males were wearing hats and scarves which covered their faces. Immediately Mr McKay rose to his feet and ran into the kitchen pursued by the two males. The first male that entered the kitchen area was wearing a black jacket and white tracksuit trousers. Mr McKay threw a glass containing orange juice at this male. Both males then began to stab at Mr McKay, who attempted to struggle with the males. He kicked out at the second male. The second male's scarf fell from his face and McKay immediately recognised him as T. McK.. McKay kicked out at McK., grabbed at him and attempted to force him to the ground. During this the male in the black jacket and the white tracksuit trousers was stabbing at Mr McKay. McKay was on his side on the floor of the kitchen. He was still holding the male in the black jacket, while attempting to pull himself up. At this point he felt the male stab him in the thigh.
[20] T. McK.,
who had been knocked to the floor, rose to his feet and stabbed McKay in the
stomach. T. McK. then fled from the
kitchen and the locus. Throughout the
assault the witness McKay was aware of T. McK. and the other male was
shouting at him, the phrases included "Ya fucking bastard".
[21] The male in the black jacket and white tracksuit trousers remained in the kitchen after T. McK. fled. He turned to Ms Blane, who had remained at the door of the kitchen door, hysterical. The male in the black jacket stated to Blane "Ya cow". At this point McKay realised that he was seriously injured but nevertheless picked up a knife in an effort to protect Ms Blane. He dropped the knife moments later when the male in the black jacket and the white tracksuit trousers fled from the house. Ms Blane then telephoned the witness Mr McKay's mother and an ambulance.
[22] The police were
notified at 2334 hours, on the same day.
An ambulance crew attended the locus and Mr McKay was conveyed to
the
[23] Both
witnesses Mr McKay and Ms Blane are able to identify T. McK. as
one of the men who forced their way into their house and assaulted the
complainer.
Discussion
[24] The accumulation of
outstanding charges in one indictment is usual.
Charges will be separated very rarely and only in exceptional
circumstances where a very strong and special reason is shown: HMA v Bickerstaff 1926
JC 65 at 80. It is normally
assumed that it is in the public interest that analogous matters should be
tried together where possible:
"For centuries it has been the practice to try all outstanding charges against a single accused on a single indictment at the same time. It is pointed out in Hume, ii, 172: 'This is allowed, not only for the sake of doing justice as expeditiously, and with as little expense and trouble as may be to the public, but also (provided it is kept within certain bounds) for the advantage of the panel; that he may be relieved of a long confinement, and of the anxiety and distress which would attend a series of successive trials.' It is only where a material risk of real prejudice to the accused can be demonstrated that a trial judge will normally be justified in granting a motion for separation of trials and, let it be said at once, it simply will not do for an accused to contend as was done in this case, that such a material risk of real prejudice arises merely because the charges in an indictment are of different places and circumstances. If that proposition were to be accepted it would also have to be accepted that several charges of crimes of the same kind, eg theft by housebreaking committed at different times and places and in different circumstances must carry an even greater risk of prejudice and should never be tried together."
[25] It was because Mr Moir saw there as being a material risk of real prejudice if the Minuter were obliged to stand trial on an indictment containing both charges (1) and (3) that he made his motion. The Advocate Depute did not seek to argue that there would not be such a risk if the premise from which Mr Moir's submission proceeded were correct: that the Crown simply cannot prove charge (1) on the evidence currently available to it. Of course the prejudice as to the Minuter's position in relation to charge (3) is, if anything, greater if the Crown can prove charge (1) than if, on a proper understanding of the available evidence, it cannot. If there is a sufficiency of evidence on both charges then both will go to the jury and everything adverse to the Minuter which has been led in support of charge (1) will be available to the jury, albeit that they will be directed to consider each charge separately. However, that is a prejudice that Mr Moir would feel constrained to accept as a consequence of the usual practice, referred to by Lord Emslie, of trying all outstanding charges against an accused on a single indictment. What he complains about is unfairness or oppression: the Crown libelling a charge which it knows it cannot prove simply in order to prejudice the minds of the jury against the Minuter in respect of the other charge. This would seem to be an entirely legitimate position for Mr Moir to adopt. There will be cases where the Crown must be allowed to libel what are sometimes referred to as "evidential" charges, that is charges which probably will not be proved but which are required to give notice that evidence may be led pointing to an incidental offence because without them it would be open to an accused to object to the leading of evidence which is part of the narrative associated with the important charge or charges on the indictment. However that consideration has no application to the case where the Crown libel two or more unconnected charges, one of which has no prospect whatsoever of being proved, for example by reason of absence of corroboration. Where the purpose of libelling such a charge can only be to prejudice the jury against the accused then it would seem to be clearly oppressive for the Crown so to act and that is something which can be controlled by the court by ordering a separation of charges.
[26] The question therefore is whether, on the most favourable view of the evidence which it is agreed is currently available to it, can the Crown prove charge (1).Richard Manser can give an account fully implicating the Minuter in everything libelled in the charge. The question therefore comes to be whether, as the Advocate Depute submitted, there was corroboration of that account, either in the circumstance of the Minuter being found by police, together with the second accused in the house of the third accused or by virtue of the doctrine associated with HMA v Moorov.
[27] In my opinion, taking the evidence available to the Crown at its very highest and looking to such inferences as might be drawn from it, which is the approach that Mr Moir accepted that I should taken, there is corroboration of Richard Manser's account of the participation of the Minuter in the offence libelled as charge (1) That is so because I consider that a jury might find in the circumstances of charges (1) and (3) sufficient interrelation of character, circumstances and time to allow them to apply what is usually referred to as the Moorov doctrine but also because I consider that there is just sufficient circumstantial evidence to allow charge (1) to be corroborated if looked at in isolation. Of course it is not necessarily a case of either or. If I am correct in my conclusion as to the applicability of the Moorov doctrine and if I am correct in finding materially incriminative evidence in the circumstances of the Minuter being in the third accused's house some ten and a half hours after the assault on Richard Manser then the jury would be entitled to look at all of that with a view to determining whether charge (1) has been established to their satisfaction on the basis of corroborated evidence.
[28] Turning first to why I consider that charge (1) can be corroborated without reference to the evidence relevant to charge (3), I would observe that there is no question but that there is evidence to corroborate the complainer's account of being tied up and assaulted and of his bank card being used around midnight on 6 to 7 December 2006. He reported the event to the police immediately and when police attended he was found to have cable ties on his wrists and tape around his neck. He was injured in a manner that was consistent with him having been struck with a knife. There is evidence of withdrawals being made from his bank account. The offence being capable of corroboration, the Crown must also corroborate who was or were responsible. The complainer states that there were three assailants, two of whom he can identify: the Minuter and the third accused. He is able to ascribe a name to the third assailant: "M.". The finding of a white coat in the third accused's house and the appearance on CCTV of a person matching the general description of J. McK., wearing a white coat, on Neilston Road at around the time of the final ATM withdrawal provide corroboration for the third accused's involvement at least to the extent of use of the bank card. In addition there is the finding of black tracksuit trousers in the third accused's house with DNA traces originating from the third accused (and the second accused) and blood stains originating from the complainer, which had a cigarette packet containing £565 in the left hand pocket. The second accused's first name, "M.", his admission that he was the third accused's boyfriend and the DNA trace on the black tracksuit trousers are potentially incriminating of him. Thus, a number of the details of the complainer's account are capable of being confirmed from independent sources of evidence. Accordingly, assuming that the jury found the complainer to be credible and reliable in his account, they could find an independent check for many of elements in that account. The critical elements for present purposes are the features that there were three assailants and that the third assailant was the Minuter. The only check for these elements is the finding of the Minuter in the third accused's house in the company of the second and third accused and no other person. In my opinion that is a piece of incriminating circumstantial evidence that is available to corroborate the complainer's account of the involvement of the Minuter in the assault and robbery. I would see that as being beyond argument if the Minuter had been seen obviously in the company of the other two accused very shortly after the complainer reported them as leaving his house. Mr Moir emphasised that that was not the position here. Fully ten hours had passed after the complainer reported them as having left and before the police found the three together. I accept that that is a significant period of time, although in assessing that I consider that a jury might infer that the three had gone to the third accused's house to sleep the night. The passage of time undoubtedly weakens the force of the circumstance of the Minuter being found with the two others who can be taken for the purposes of the present argument to be two of the complainer's assailants but the time period and the surrounding circumstances, which include the finding of money in the house and the fact that only these three and no others were there together, are such that, in my opinion a jury could find the necessary corroboration.
[29] I also consider that the doctrine of mutual corroboration is available to the Crown. The Advocate Depute pointed to the similarities between the circumstances of charge (1) and those of charge (3): the events were close in time and place, as was conceded; both involved complainers who knew the Minuter; both had the feature of a preliminary contact as between one of the assailants and the complainer; both involved the sudden breaking in of a door and a forcible entry into the house; and both involved a violent attack on an unarmed complainer by two men with knives, one of whom was positively identified as the Minuter. Mr Moir, for his part, emphasised the differences: charge (1) was a robbery; it involved what he described as the deliberate torture of the complainer; and it seemed to have as part of its motive revenge or retribution. These were not features of charge (3). Parties were agreed about the applicable law and the principal authorities: Moorov v HMA supra, Ogg v HMA 1938 JC 152, Dodds v HMA 2002 SLT 1058. In Moorov v HMA supra at 73 the Lord Justice General said this:
"Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign or adventure which lies beyond or behind - but is related to - the separate acts."
In Ogg v HMA supra at 157 and 158 the Lord Justice-Clerk said
this:
"Moorov
is a decision of the highest authority by a Court of seven judges which
authoritatively laid down the general proposition in relation to sexual crimes,
although not entirely limited to such crimes, that similar sexual crimes each deponed to by a single
credible witness may afford mutual corroboration, provided that they are so
inter-related by character, circumstances and time - the presence of all
these features is not essential - as to justify an inference that they are
instances of a course of criminal conduct systematically pursued by the accused
person. ... Where the inter-relation is sought between
similar offences as in this case, it must be possible to say that there is not
only a series of separate similar offences, but that there is a reasonable and
practical certainty, based not on conjecture or suspicion, nor a mere moral
certainty, that the similar offences are instances of one course of conduct
persistently pursued by the accused person.
... the doctrine of Moorov is a
valuable doctrine, but it must be applied with great caution. If it is not applied with caution there is a
danger that evidence showing a general disposition commit some kind of offence
might be treated as corroboration. That
must always be guarded against, and the doctrine ought not to be applied unless
inter-relation of the similar offences in some substantial sense can be with
certainty affirmed."
The difficulty of course lies in applying the agreed principle to the
marginal case which I would regard the present as an example. There are similarities as between
charges (1) and (3) but, as Mr Moir emphasised, there are
dissimilarities and similarity, of course, is not enough. The similar features must be such as to point
to an inter-relationship which allows the inference that they are instances of
one course of conduct. In the present
case, taking matters at their best for the Crown, I consider that that
inference can be drawn.
[30] I would accordingly refuse the motion to
separate charges.