Man who sexually abused two boys in ‘mutual corroboration’ case loses appeal against conviction

The Appeal Court of the High Court of Justiciary ruled that there was “no merit” in the appellant’s argument that the charges of lewd and libidinous behaviour and indecent assault against one boy could not provide “mutual corroboration” for the evidence relating to the charge of sodomy against the other boy.

Lady Paton, Lord Brodie and Lord Turnbull heard that the appellant “SM” was convicted after trial in March 2017 of lewd and libidinous practices towards two boys (charges 1 and 3), AG, a neighbour, and PM, his nephew; indecent assaults against AG (charge 2); and sodomy of his newphew (charge 4).

However, he appealed against conviction on the ground that there was “insufficient evidence” to corroborate charge 4 and that a defence submission of “no case to answer” to that effect should have been sustained by the trial judge.

‘Insufficient evidence’

Counsel for the appellant submitted that while there were similarities in time and place between the allegations made by the two complainers, the character of the offence in charge 4 was “materially different”, as the offences in charges 1 and 2 did not involve any element of penetration.

There were further dissimilarities, including the fact that AG was a neighbour, whereas PM was a relative, and most of the incidents involving AG took place out of doors, whereas all of the incidents involving PM occurred indoors.

AG spoke of a “jokey” element to the incidents, without any violence, whereas PM described the sodomy as “extremely violent”, accompanied by threats that he would not see his family again if he told anyone about what was happening.

AG had also said that he was given beer and cigarettes on every occasion of sexual abuse. PM made no mention of either, but spoke of being given food and ice-cream.

It was argued that the essential underlying unity could not be established and that there was such a “significant difference” in character that the behaviour described could not comprise component parts of one course of conduct systematically being pursued by the appellant.

Counsel submitted that AG’s evidence in respect of charges 1 and 2 could not therefore corroborate PM’s evidence in respect of charge 4 and the trial judge should have sustained the submission that there was “insufficient evidence” to support the appellant’s conviction on charge 4, which accordingly should be quashed.

‘Compelling similarities’

But the advocate depute argued that alleged dissimilarities in the character of the offences referred to by counsel for the appellant were “superficial” and that the similarities in character pointed to “a course of conduct”.

It was submitted that the evidence given in respect of a less serious charge could corroborate evidence given in respect of a more serious charge and that evidence about non-penetrative behaviour could corroborate evidence about penetrative behaviour.

Further, the offending conduct had to be looked at “as a whole” and there were “compelling similarities” in the character of the conduct described by AG and PM, including “age-appropriate grooming” and an element of isolation and escalation in both cases.

The trial judge was therefore justified in repelling the “no case to answer” submission and putting the case to the jury to consider whether the doctrine of mutual corroboration set out in the 1930 case of Moorov v HM Advocate applied.

Refusing the appeal, the judges observed that counsel for the appellant accepted that there was “ample evidence” to establish the elements of time and place necessary for the proper application of the Moorov doctrine.

‘Course of conduct’

Delivering the opinion of the court, Lady Paton said: “Counsel’s submission was that the character of the conduct described by AG was so different from the sodomy described by PM (charge 4) that AG’s evidence could not corroborate PM’s evidence in respect of charge 4. Thus the submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 should have been sustained, and the appellant should have been acquitted of charge 4. We do not agree.

“When assessing the submission made in terms of section 97, the trial judge had to view the appellant’s conduct as a whole, rather than in individual compartments. When so viewed, a jury would be entitled to conclude that the appellant’s behaviour towards AG and PM was controlling and dominating conduct directed to using each boy for the appellant’s own sexual gratification, and going as far as he could with each boy. The fact that there was penetration in PM’s case, but not in AG’s, would not be determinative.

“A jury would be entitled to take into account the ages, stages of development, and personalities of AG and PM, and to conclude that PM had been less able than AG to prevent the appellant from doing what he wanted to do or from using violence towards him. A jury would be entitled to conclude that the fact that the behaviour towards AG took place mostly out of doors, whereas that towards PM took place inside, simply reflected the opportunities available to the appellant.

“A jury would be entitled to regard the different types of enticement used by the appellant (for example, cigarettes and alcohol in AG’s case, food and ice-cream in PM’s case) as being age-appropriate treats used in order to groom AG and PM. A jury would be entitled to give considerable weight to many or all of the similarities referred to by the trial judge and the advocate depute, and to give lesser weight to the dissimilarities referred to by the appellant’s counsel.

“In the result, it is our view that it cannot be said that the evidence in this case 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 trial judge. It was therefore for the jury to balance the various similarities and dissimilarities referred to above, to evaluate questions of fact and degree, and to reach a view as to whether and to what extent the Moorov doctrine applied.”