Child sex offender who claimed ‘mutual corroboration’ could not be applied to charges loses appeal against conviction



Lady Paton
Lady Paton
A man found guilty of historical child sex offences on the basis of the doctrine of “mutual corroboration” has had an appeal against his conviction rejected.
 
The appellant claimed that the “Moorov doctrine” could not be applied to the two charges because the character of the offences were “very different”, and that the sheriff “erred” in refusing a defence submission of “no case to answer”.
 
However, the High Court of Justiciary Appeal Court refused the appeal after ruling that there were “sufficient similarities” in his conduct.
 
‘Lewd and libidinous practices’
 
Lady Paton, Lord Menzies and Lord Malcolm heard that the appellant “RMY”, 71, was convicted following a trial at Hamilton Sheriff Court in August 2017 of two charges of lewd and libidinous practices and behaviour: firstly, towards his adopted niece, on various occasions between 1967 and 1970 when she was aged between four and seven years; and secondly, towards his adopted step-daughter, on various occasions between 1975 and 1977 when she was aged 10 to 11 years.
 
The appellant was sentenced to a total of 45 months’ imprisonment - 15 months in respect of charge 1 and 30 months in respect of charge 2.
 
But he appealed against his conviction, arguing that there was a “considerable time lapse” of seven years between the offences libelled in charges 1 and 2 and that the character of the offences was very different.  
 
The behaviour described by the complainer “H”, the appellant’s adopted niece, was “opportunistic” and limited to two occasions; the first occasion taking place in the living room of the appellant’s home while the complainer’s mother and grandmother were in the kitchen, and the second occasion taking place near a wall.
 
By contrast, the behaviour described by the complainer “P”, the appellant’s adopted step-daughter, took place on many occasions, often outside the home, and was planned.  
 
‘No case to answer’
 
Counsel for the appellant submitted that there were, in fact, “more dissimilarities than similarities” in the character and circumstances of the offences and therefore the doctrine, as set out on Moorov v HM Advocate 1930 JC 68, was not available for the two charges.
 
It was argued that, as a result, the charges stood “uncorroborated” and accordingly the “no case to answer” submission under section 97 of the Criminal Procedure (Scotland) Act 1995 should have been sustained.
 
But the advocate depute submitted that, at the stage of a “no case to answer” submission, the Crown case must be taken “at its highest”.  
 
The time-gap was not so extensive as to require special or exceptional similarities, and the similarities elicited in the evidence “entitled” the jury to apply the Moorov doctrine.  
 
In particular, both complainers were pre-pubescent females and in each case there was no blood relationship, but there was access to each in the family context.
 
It could not be said that, on any view, there was no connection between the offences.
 
‘Course of conduct systematically pursued’
 
Delivering the opinion of the court, Lady Paton said: “When assessing any similarities at the stage of a ‘no case to answer’ submission, the sheriff had to take the Crown’s case at its highest. The time-lapse (namely, a maximum of seven years between the events described by H and those described by P) did not, in our opinion, require the sheriff to find any similarities to be exceptional or extraordinary.”
 
Applying the guidance given by Lord Hope in the case of Reynolds v HM Advocate 1995 JC 142, the judges concluded that this was not a case where the sheriff could have decided that “on no possible view could it be said that there was any connection between” the offences in charge 1 and those in charge 2.  
 
“On the contrary,” Lady Paton continued, “on the evidence available, a jury would be entitled to take the view that the behaviour described by H and P demonstrated the appellant’s attraction to pre-pubescent female children resulting in wholly inappropriate conduct towards them for his own sexual gratification, often with the added risk-taking thrill of indulging in such behaviour in the vicinity of other adults related to the children.  
 
“A jury would be entitled to conclude that each child became available to him because of the family context. A jury would be entitled to take account of evidence from which an inference could be drawn that the appellant chose not to subject his own blood-related female child to such behaviour, but had no inhibitions in relation to an adopted niece and a step-daughter.  
 
“A jury would be entitled to give considerable weight to the similarities referred to by the sheriff and the advocate depute, and to give lesser weight to any dissimilarities referred to by the appellant’s counsel.”
 
She added: “Thus we consider that the evidence at the close of the Crown case, as noted in the sheriff’s report and taken at its highest, disclosed sufficient similarities in time, character and circumstances to entitle a jury, if they so chose, to apply the Moorov doctrine. It could not be said that the evidence was insufficient to entitle a jury, properly directed, to conclude that there was a course of conduct systematically being pursued by the appellant towards the two complainers. 
 
“No criticism is made of the directions given by the sheriff. It was therefore for the jury to balance the various similarities and dissimilarities, to evaluate questions of fact and degree, and to reach a view as to whether and to what extent the Moorov doctrine applied. We are not persuaded that the sheriff erred in refusing the ‘no case to answer’ submission.”

© Scottish Legal News Ltd 2018



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