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APPEAL AGAINST CONVICTION AND SENTENCE BY RB AGAINST HER MAJESTY'S ADVOCATE


Submitted: 28 April 2017

Web Blue HCJ

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 24

HCA/2016/000505/XC

 

Lord Justice Clerk

Lord Brodie

Lord Malcolm

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

RB

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Dean of Faculty; Cheyne; John Pryde & Co

Respondent:  Taylor, Sol Adv, AD; Crown Agent

28 April 2017

[1]        The appellant, a maths teacher, was convicted after trial of sexual offences committed against two school pupils.  The second complainer was the nephew of the first complainer.  The Crown relied on the operation of the Moorov doctrine for conviction.  The temporal gap between the offences, at its shortest, was just under 17 years.  The grounds of appeal presented are first, that the trial judge erred in repelling a no case to answer submission, there being insufficient evidence to indicate that the incidents both formed part of a course of conduct on the part of the appellant.  Second, (a) that the judge’s charge was inadequate, in that it failed sufficiently to emphasise the need for strikingly compelling similarities to exist before the Moorov doctrine could be applied to incidents separated by such a gap in time, satisfying the need to prove a course of conduct; and (b) that there being no evidence of compelling features consistent with such a course of conduct, no reasonable jury could have concluded otherwise and have convicted.  The appeal is also against the sentence of 6 years’ imprisonment.

[2]        It is quite clear from an examination of the judge’s charge as a whole that there is no merit in ground 2(a).  The trial judge directed the jury for the need for striking similarities to show that one course of conduct was being pursued, that the time gap was relevant, and that they required to consider whether the gap was explained, in such a way that they could conclude that there had been a course of conduct.  Her directions were entirely sufficient.

[3]        The remaining grounds of appeal against conviction stand or fall together on the issue of whether the circumstances were such as would admit of a conclusion that there had been one course of conduct systematically pursued by the appellant.

 

Evidence at trial
[4]        The complainer in charge 1, GM, met the appellant when he started secondary school in 1994.  The appellant was his maths teacher in his first year.  GM did not do well in his first few weeks and the appellant gave him extra tutoring at lunchtime, later extended to after school.  The appellant turned conversation to uncomfortable subjects: masturbation; whether GM had a girlfriend; and penis size.  On one occasion at the appellant’s instigation, GM measured the sized of his penis, which was then compared with that of the appellant.  Thereafter the appellant drove GM to a secluded layby and asked him why he felt uncomfortable about the behaviour.  When GM said that such behaviour was for adults, the appellant put his head in his hands, saying that his own mother said he was a pervert and that others thought so too.  GM felt compelled to comfort the appellant, and felt sorry for him.  The appellant then encouraged GM to drop his trousers and to masturbate.

[5]        The appellant arranged for GM to join the local gym and went with him there.  On being challenged by GM for staring, the appellant reassured him that everyone had the same body parts and that, in any case, he could not see without his glasses.

[6]        The appellant later started to give GM massages, originally on his shoulders, neck and back.  On two occasions during massages the appellant placed his hand on GM’s groin area under his shorts.

[7]        The appellant took GM on various outings and to restaurants and would afterwards drive him along back roads, where he would stop in a layby and suggest dares for which GM would be awarded “prizes”.  These included daring him to take his clothes off and run naked round the car, and to touch the appellant’s penis.  The appellant let him drive the car when he was naked.  The “prizes” included expensive designer shirts and underwear, and bottles of Buckfast wine or vodka.  The appellant asked to masturbate in front of GM, to ejaculation.  The appellant provided condoms and each of them ejaculated onto a condom. 

[8]        GM explained that he did these things because he wanted to keep the relationship he had with the appellant and because he appreciated the “prizes” and presents which his mother could not afford. 

[9]        The complainer in charge 2, AW, is the nephew of GM.  He started at the appellant’s school when he was 12.  He had known the appellant all his life as a friend of the family who used to visit the family home.  The appellant was not AW’s teacher, but offered to help with his school work by tutoring him at lunchtime and then also after school at the house of AW’s great grandmother, with whom the appellant was friendly.  The appellant would drive them home via restaurants or cafes then by back roads where he would stop the car and talk.  At first the talk was about schoolwork and rugby, but it turned to sexual matters.  The appellant asked AW about masturbation and about what he had done with any girls that he knew.  The appellant bought a gym membership for him and, since AW was not old enough to join, supplied a false date of birth.  The appellant took him to the gym where they had showers along with other people. 

[10]      About six months after AW started at the school, the appellant began to give him massages.  Thereafter the appellant would tell AW to take his boxer shorts off and let the appellant masturbate him.  When AW told the appellant that he did not want this to happen, the appellant said AW must think he was a weirdo, and became upset.  That made AW feel bad and guilty, so he let the appellant proceed.  The appellant asked AW to masturbate him, but he never did it.  The appellant drove him to an isolated car park and asked him to masturbate.  The appellant took him on outings to places of interest such as Edinburgh. 

[11]      The appellant sometimes played relaxation CDs, and shaved AW’s pubic area.  AW felt confused.  The appellant gave him money, designer shirts and underwear, Buckfast wine and the drink “Mad Dog”.

[12]      The trial judge repelled a submission of no case to answer, concluding that the acts in question were strikingly similar, such that the Moorov doctrine could be applied.

 

Submissions for the appellant

[13]      It was accepted that there was no upper limit of time beyond which the Moorov doctrine could not be applied (Dodds v HM Advocate 2003 JC 8), the matter being one dependent on the circumstances of each case.  However, the gap in time of 17 years was such that it was necessary to identify an extraordinary feature or striking similarity between the character and circumstances of the respective charges before the doctrine of mutual corroboration could apply (KH v HM Advocate, 2015 SCCR 242; RF v HM Advocate, 2016 SCCR 319).  Such features must demonstrate an underlying unity of intent on the part of the appellant,  to enable the jury to conclude that, notwithstanding the gap in time, they were component parts of a course of conduct persistently pursued by the appellant.  (MR v HM Advocate 2013 JC 212;  CW v HM Advocate 2016 SCCR 285; JL v HM Advocate [2016] HCJAC 61; AK v HM Advocate 2012 JC 74; AS v HM Advocate 2015 SCCR 62).  Here, the similarities were not extraordinary, and there were significant differences between the two charges.  There was no evidence to suggest that the appellant had no opportunity to commit other similar offences in the intervening period.  The “generational” explanation for the gap (AS) did not apply.  There was no evidence to suggest that the appellant’s relationship with the family of the complainers had been with a view to initiate a process of grooming.  The similarities relied on in the present case are no more than the conventional similarities which might be looked for in cases such as these.

 

Submissions for the Crown

[14]      The family relationship was important in the case.  It was not a factor in the abuse of the first complainer, as there was no suggestion that there was a family connection with GM at the time when the conduct towards him began.  It was as a result of tutoring that the family friendship developed, so that the second complainer knew the appellant all of his life.  The family friendship was thus a factor regarding the second complainer.

[15]      Looking at it as a campaign, the evidence showed that the appellant remained friendly with the first complainer, got himself into a position where he had successfully carried out abuse of the first complainer without alienating him or having the abuse reported.  In that context the second complainer would be an attractive prospect as a target for abuse.  Having successfully abused the first complainer other family members became a focus of interest for further abuse.

[16]      The second complainer already had a relationship with the appellant, enabling him to spend more time with the child, all facilitated by the family friendship.  The appellant appears to have an attraction to adolescent boys, both complainers being at that age when the incidents occurred.  The appellant’s specialisation mathematics, is a subject which pupils commence at secondary school, which is relevant to the question of opportunity.

 

Decision

[17]      The basic principles which apply in cases such as the present are conveniently summarised in para 30 of JL v HM Advocate in the opinion of the court given by the Lord Justice Clerk (Dorrian):

“There is no maximum interval of time fixed by law beyond which the Moorov principle cannot apply (K v HM Advocate, Lord Justice Clerk (Gill) at para.14).  The probative effect of a significant time gap can only be determined in light of all the circumstances of the case (S v HM Advocate, Lord Justice Clerk (Carloway) at para.10).  The search is always for an underlying unity of intent such as to indicate a course of conduct on the part of the accused.  The more similar the conduct is in terms of character, the less important a significant time gap may be (S v HM Advocate). Conversely, ordinary similarities may suffice where there are shorter gaps because a course of conduct may be more readily inferred. Even where there has been a substantial interval of time, compelling similarities will merit consideration of the whole circumstances for the jury (K v HM Advocate).”

 

[18]      It is worth emphasising that in a case where reliance is placed on the Moorov doctrine, the search is always for an underlying unity of intent such as to indicate a course of conduct on the part of the accused.

[19]      In Moorov (Lord Justice General (Clyde), p73) explained that the evidence of each single witness is capable of providing corroboration if it :

“…leads by necessary inference to the establishment of some circumstances or state of fact underlying and connecting the several charges,…Not merely superficial connexion in time, character, and circumstance between the repeated acts—important as these factors are—will satisfy the test I have endeavoured to formulate.  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.  The existence of such an underlying unity, comprehending and governing the separate acts, provides the necessary connecting link between them, and becomes a circumstance in which corroboration of the evidence of the single witnesses in support of the separate acts may be found—whether the existence of such underlying unity is established by independent evidence, or by necessary inference from the evidence of the single witnesses themselves, regarded as a whole.”

 

[20]      This requirement for an underlying unity has often been referred to as a “course of conduct systematically pursued” by the accused.  This phrase, perhaps the most commonly expressed summary of the Moorov doctrine comes not from Moorov itself but from the case of Ogg v HMA 1938 JC 152 where the Lord Justice Clerk (Aitchison) said (p157)

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 always 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.”

 

[21]      The phrase a “course of conduct” may be a useful shorthand, but one must remember that it comes with the rider “systematically pursued”.  In using that phrase, one must bear in mind the cautionary words of the Lord Justice General in Moorov at p73

“Risk of confusion lurks behind a phrase of that kind; for it might correctly enough be applied to the everyday class of case in which a criminal recurs from time to time to the commission of the same kind of offence in similar circumstances. ….it is of the utmost importance to the interests of justice that the “course of criminal conduct” must be shown to be one which not only consists of a series of offences, the same in kind, committed under similar circumstances, or in a common locus —these are after all no more than external resemblances—but which owes its source and development to some underlying circumstance or state of facts….”

It is thus important that the evidence is capable of bearing the inference that the acts are not merely isolated incidents of similar offences but form part of a chain of connected or related acts.  This point was made by Lord Brodie in KH v HMA 2015 SCCR 242:

“[26]      What Lord Justice General Clyde wished to emphasise was that where what was in issue was the availability of evidence of one act to provide mutual corroboration of another, "a course of criminal conduct" had to be understood as something more than simply the repetition by one accused of a series of similar crimes "over a period of (say) three years" ….

 

34          That underlying unity may be established by the evidence led in support of individual charges and once established, what is libelled in these individual charges can be regarded as merely incidents in the course of criminal conduct which has been driven by the underlying unity.”

 

[22]      If care is not taken when applying the doctrine, especially where a limited number of charges are separated by long intervals of time, there is a real risk that evidence which, in truth, points only to a general disposition to commit a particular type of offence will, wrongly, be allowed to be used as corroboration (Ogg p158; para 18).

[23]      There was a suggestion in the course of submissions that more recently the court had moved away from the search for this underlying unity; and further, that the requirement for a connection in time had been weakened by cases in which corroboration had been found between charges separated by significant gaps in time. We are not convinced that this is so.

[24]      In all the recent cases cited to us the court has gone to considerable trouble to identify the requirement of underlying unity, the need for evidence which demonstrates that the individual incidents are not unrelated but are component parts of one course of conduct persistently pursued by the accused (MR para 20; CW paras 34 & 49; JL paras 30 & 32; Reilly para 18; AK paras 10 & 18; AS para 20; KH paras 24-26; and RF para 18).

[25]      It is true that the law in this area has moved on since Moorov.  That was noted by the LJG (Hamilton) in B v HMA a case on the question of identity in kind.  The LJG said (para 6) that:

“It thus appears that, notwithstanding the approach adopted in Moorov , the law has developed to the extent that identity of the crimes charged is not a prerequisite for the application of the doctrine associated with that case. It was not suggested in this case that McMahon or Carpenter or Smith was wrong as being inconsistent with the Full Bench decision in Moorov .  What is now critical, it appears, is, apart from similarity of time, place and circumstance, ‘similarity of the conduct described in the evidence’.  The rule is, after all, a rule of evidence, not a rule of substantive law.”

 

[26]      Some of the reasons for the law having moved on were explained by the Lord Justice Clerk (Carloway) in the full bench case of MR v HMA  2013 JC 212:

“[17]    Almost at the outset of his opinion, the Lord Justice-General correctly pointed to the significant element which requires to be taken into account in any analysis of Moorov.  This is simply that the law has moved on since 1930 (para 3).  It has done so in an attempt to keep pace with modern societal understanding of sexual and other conduct and, in particular, what are perceived to be characteristic links between the perpetration of different types of sexual and physical abuse especially, but not exclusively, of children and young persons.  The court today will not proceed upon outdated perceptions, such as those of Lord Sands (p 89) on the connection between different forms of conduct by errant husbands, but upon its own developing knowledge of sexual and other behaviour and how one type of illegal activity can often be intimately connected with other types of different, but still illegal, acts.  Sexual and physical abuse of different kinds perpetrated by one person but occurring within the same family unit, extended or otherwise, is one model of this type.”

 

[27]      There is no doubt that the very fact-sensitive nature of the cases in which the rule arises means that it can be difficult to apply.  As Lord Malcolm noted in CW (para 51), under reference to phrases used to import the need for underlying unity,

“… all such phrases still leave room for debate as to the correct judgement to be made in a particular case.  These are not hard edged rules.”

 

[28]      That the statement of principle was easy to make but manifestly difficult to apply was recognised in Moorov itself in the opinion of the Lord Justice Clerk (Alness) at p80.  The situations which have tended to create the most difficulty are those where the incidents are separated by long gaps of time, and especially in the absence of a plurality of complainers.  It is obvious why this should be so.  As Lord Sands noted in Moorov (p89), time

“…is an important and, in some aspects, a vital consideration.  This results from the quality of the acts as evidence of a ‘course of conduct.’  A ‘course’ involves some continuity.  Acts isolated by a long period of time do not make a course of conduct.”

 

He mentioned some of the nuances which might require consideration where there has indeed been a gap in time:

“..whether a series of acts is to be regarded as disclosing a course of conduct must depend upon the nature of the acts themselves and the surrounding circumstances.  A course does not necessarily imply that the offence is committed or attempted every day or even every month.

 

Opportunity or inclination may be intermittent.  A man whose course of conduct is to buy houses, insure them, and burn them down, or to acquire ships, insure them, and scuttle them, or to purport to marry women, defraud and desert them, cannot repeat the offence every month, or even perhaps every six months.

 

Time, however, may undoubtedly be an important factor in determining whether evidence imports a certain course of conduct.”

 

[29]      As both the Lord Justice General and Lord Justice Clerk recognised in Moorov (pp75 and 83) a considerable lapse of time between acts may be of great importance against the corroborative effect of the testimony of the separate witnesses.  The general need to exercise caution in the application of the rule, recognised repeatedly in the authorities, is more acute in cases with a small number of complainers and where the events are separated by a long gap in time.

“If the intervals of time are substantial, an inference of their inter-relation becomes difficult, and as a matter of evidence may be impossible to draw.”

 

Ogg, per the Lord Justice Clerk p158.

[30]      It has however been recognised that, since each case depends on its own circumstances, no upper limit may be drawn, beyond which a gap in time between events would prevent the drawing of an inference that they form part of a course of conduct systematically pursued by the accused.  The increased understanding of the links which may exist between apparently different types of sexual offending which caused the court in B and MR to depart from any notion that the crimes require to be the “same in kind” or grouped under the same nomen juris, has led the court to accept that where the gap in time is lengthy, the circumstances and character of the offences may nevertheless be of such similarity as to justify the inference that they are connected instances of a course of conduct, rather than isolated and opportunistic repetition of similar offences.  That has particularly been the case in relation to abuse within the family, where a “generational gap” might explain why there has been a gap in offending.  An example may be seen in AS v HMA 2015 SCCR 62, where the fact that the appellant, having abused his own children, moved onto abusing their children in turn, thus explaining the gap and enabling the conclusion to be drawn that the incidents were all part of one underlying, associated, course of conduct.  In AK where there was an interval of 13 years between incidents spoken to by two complainers, the connecting inference could be drawn because of one striking factor which was so individual it enabled the court to conclude that the appellant was “carrying on from where he left off” (Lord Justice Clerk, Gill, para 18).  But for that, the obvious, conventional similarities which existed between the incidents would not have been enough, standing the gap in time, for the inference to be drawn.  In such cases:

“The question then is whether there is, as the trial judge has put it, some extraordinary feature in the evidence that could be said to change the whole complexion of the Crown case and entitle the jury to conclude that the evidence considered as a whole disclosed a course of conduct, notwithstanding the lengthy interval to which I have referred.  In my opinion, there is.” (Lord Justice Clerk para 15)

 

[31]      In other circumstances the court has taken the view that no extraordinary feature existed such as would provide the link between the offences, and overcome the implication that the lapse in time was destructive of the notion of a course of conduct being systematically pursued by the accused (see, for example, RF; KH; and Reilly (in part)).  Equally, in Pringle v Service 2011 JC 190 where similar offences committed in circumstances which were also similar (assault by teacher on 14-15 year old pupils on outward bound courses), the court nevertheless concluded that the gap of 9 years between the earliest and the subsequent offences was too great to allow a conclusion that they all “formed part of a course of conduct which was systematically pursued” by the appellant.

[32]      The time gap between the two charges in the present case is substantial.  The Crown seeks to explain it on the basis of lack of opportunity, in that the complainer AW was the next person in the first complainer’s family to attend secondary school.  However, for this to have any significance in explaining the gap, the jury would require to be able to reach the conclusion that the underlying course of conduct of which the offences were part was one directed towards committing offences against members of the same family.  However, there was no evidence that the behaviour towards GM came about, or that its commencement was facilitated, by any relationship which the appellant had with the wider family.  The evidence as narrated by the trial judge was that when GM started secondary school he “met he appellant who was a maths teacher”.  There is no suggestion that at the time GM was already known to the family, or that if he were, he had used that relationship to become better acquainted with GM.  The family relationship appeared to be incidental, rather than a factor precipitating or facilitating the conduct.

[33]      AW had known the appellant all his life: contact did not arise only after he commenced secondary school.  However, on the evidence improper conduct towards the second complainer did not arise during the earlier period of that contact, it commenced only once he had started at secondary school.  That does not tend to support the submission that there was a course of conduct relating to members of the family in question.  The occasion for the conduct was in each case the provision of additional tuition to the complainer as a pupil at the school: it is not a case where a family friend took advantage of visits to the family home or intimacy with the family, to abuse members of the family during visits.  There was evidence that, even at the time of the events in the first charge, the appellant acted as tutor to other boys.  He continued to do so over the years.  The argument that he lacked opportunity to commit such offences is difficult to accept: this is not a case of abuse within a family, where the first occasion for repetition of such abuse occurs when the original complainers have children of their own.  There are, of course, similarities in the conduct, but they are the similarities which one might expect to find in any two offences of this kind.  There are no similarities of such a striking or extraordinary nature which might suggest that the two offences were part of the same course of conduct, systematically pursued by the appellant.  The evidence in the present suggests two separate courses of conduct, albeit arising from a particular disposition.

[34]      It was argued that the circumstances were such that the trial judge was correct to leave the decision to the jury.  However it has been repeatedly stated that the rule of mutual corroboration must be approached with caution, and this especially when there are only two complainers.  In the present case there is the added factor of a 17 year interval between the respective accounts.  Given that for the reasons explained earlier, the family connection is not a powerful factor, we are satisfied that the issue should have been withdrawn from the jury.   In the circumstances the appeal must succeed.