Child sex offender loses appeal over sheriff’s ‘misdirection’ on mutual corroboration

The appellant claimed that the sheriff misdirected the jury on the possible application of the doctrine of “mutual corroboration”, but the High Court of Justiciary Appeal Court ruled that the trial judge’s directions were “entirely adequate”.

Lord Brodie, Lady Clark of Calton and Lord Turnbull heard that the appellant “DM” was sentenced to 42 months’ imprisonment after being convicted of three charges of “lewd, indecent and libidinous practices and behaviour” towards young girls following a trial at Kilmarnock Sheriff Court in July 2016.

The complainers in charges 1, 2 and 5 were all nieces of the appellant and each spoke to him having sexually assaulted them after entering their bedrooms while they were asleep.

The offence in charge 1 took place in the complainer’s home when the appellant came to visit, while the offences in charges 2 and 5 took place in the appellant’s home on Arran when the complainers were staying there overnight.

The only ground of appeal was that the sheriff misdirected the jury by omitting to make any reference to time gap between the various charges – some six years between charges 1 and 2 and some eight years between charges 2 and 5.

It was submitted that in the circumstance of the case he had a “duty” to bring to the attention of the jury the issue of the intervals of time and to point out to them that this had the potential “to undermine the operation of the Moorov doctrine”.

It was also argued that this misdirection was compounded by the sheriff saying “the defence … has not suggested that the circumstances of each incident are so dissimilar that the rule cannot be applied”, which conveyed the “impression” that the defence conceded that the Moorov doctrine applied on the facts of the case.

It was accepted on behalf of the appellant that the sheriff had given the jury the standard directions regarding the Moorov doctrine as set out in the Jury Manual, produced by the Judicial Institute for Scotland.

In particular, he had directed them that if they were satisfied that the alleged crimes were so closely linked by their character, circumstances, place of their commission and by the time of their commission, as to bind them together as parts of a single course of conduct systematically pursued by the appellant, then the evidence of one witness about the commission of one crime could corroborate the evidence of another witness about the commission of another crime.

The sheriff concluded his directions on mutual corroboration by telling the jury that in the present case there was enough evidence in law as to the crimes alleged being sufficiently close in time, character, place and commission and circumstances for the Moorovdoctrine to apply, but that it was for them to decide if the necessary link in time, character and circumstance had been established.

However, it was submitted that where the lapse of time was “significant”, there was a duty on a trial judge to bring the issue to the attention of the jury and to point out that the time gap might be such as to make the Moorov doctrine “inapplicable”.

But the appeal judges observed that that proposition has “never been expressly adopted by the Appeal Court”.

The judges agreed with the advocate depute, who submitted that in cases where it is a live issue specific comment on lapse of time may well be required, but where that is not so the standard directions will usually suffice.

The present case was different because there had been no submission of “no case to answer” on the basis of the lapse of time between the relevant charges.

Delivering the opinion of the court, Lord Brodie said: “Parties had not made a particular issue of gap in time. The directions onMoorov were otherwise entirely unexceptional and unexceptionable.

“It was made clear to the jury that they were looking for evidence which allowed them to conclude that the incidents were bound together as parts of a single course of criminal conduct systematically pursued by the accused. They were advised that it was the underlying similarity of the conduct which they had to consider.

“They were told that if they believed the witnesses, they then had to decide whether, by reason of the character, circumstances, place of commission and time of each charge, the crimes were so closely linked that they could infer the accused was pursuing a single course of crime. They were advised that the doctrine required to be applied with caution and that a general disposition was not sufficient.

“In the circumstances of a case where the applicability of mutual corroboration was not specifically put in issue by reference to one of the relevant elements, we do not consider that anything more was required.”

The further complaint was that the sheriff compounded the alleged misdirection by omission by saying that “the defence … has not suggested that the circumstances of each incident are so dissimilar that the rule cannot be applied”.

However, as the sheriff reported, this was a “factually accurate” statement, as counsel for the appellant had not made a submission of no case to answer at the close of the Crown case and had not otherwise suggested that the circumstances of each incident were so dissimilar that the Moorov doctrine could not be applied.

Lord Brodie added: “Again, in saying what he did the sheriff was following the structure which is suggested by the Jury Manual, by reminding the jury of what was the defence position. We do not consider that the sheriff can properly be criticised for so doing in what were entirely accurate terms.

“It is accordingly our opinion that in the present case, the trial judge’s directions on the operation of the doctrine of mutual corroboration – read as a whole – were entirely adequate.”