J.C. v. Her Majesty’s Advocate [2016] HCJAC 100

Note of appeal against conviction:- On 20 January 2016, at Glasgow High Court, the appellant was convicted after trial of 4 charges from an indictment containing 24 charges. A number of charges were withdrawn prior to the close of the Crown case but the remaining 19 charges, all of which related to contraventions of the Sexual Offences (Scotland) Act 2009, proceeded. Following an unsuccessful submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 made on behalf of the appellant at the close of the Crown case, the appellant was convicted of 4 of the remaining charges:- (1) charges 8 (the sexual assault of a child (AM) under the age of 13 contrary to section 20 of the Sexual Offences (Scotland) Act 2009; (2) charge 19 intentionally causing a child (JM) to look at a sexual image by electronically sending a picture of his penis (contrary to section 6 of the Sexual Offences (Scotland) Act 2009); (3) charge 20 (intentionally sending a written sexual communication electronically to a child (CM) (contrary to section 24(1) of the Sexual Offences (Scotland) Act 2009); and (4) charge 24 (sexual penetration of a child’s (KT) mouth with his penis (contrary to section 37(1) and 3(a) of the Sexual Offences (Scotland) Act 2009). On 18 February 2016 the appellant was sentenced to a Community Payback Order for a period of 3 years with a number of further requirements including to carry out 150 hours unpaid work to be completed within six months. The appellant appealed against his conviction in relation to charges 8 and 24 on the grounds that there were insufficient similarities between charges 8 and 24 to allow the application of the Moorov doctrine and that the trial judge erred by failing to direct the jury in relation to which charges were available to corroborate each other in that only a general direction was given in relation to the criteria to be applied in considering whether the doctrine could be applied. It was submitted on behalf of the appellant that the appellant’s conviction in relation to either charge 8 or 24 required that each complainer’s respective evidence was capable of providing mutual corroboration to the other. It was submitted that charges 19 and 20 could be indicative of an interest in younger girls but were unable to provide corroboration in that an act of oral penetration was of a different type and nature from the conduct involved in sending an indecent image. It was further submitted that whilst there were undoubtedly similarities between charges 8 and 24, for example, making an arrangement to meet a younger girl via social media and a suggestion of sexual activity these were insufficient to allow the jury to view the charges as forming part of a course of conduct persistently pursued by the appellant. It was submitted that the dissimilarities outweighed the similarities in that charge 8 involved very low-level sexual conduct with a younger child whilst charge 24 involved oral sex in behaviour which was criminal due to them both being older children. It was further submitted on behalf of the appellant that the judge ought to have compartmentalised the various charges of the indictment to the jury to make clear to them which of the remaining 19 charges on the indictment were available to corroborate each other through the application of the Moorov doctrine. On behalf of the Crown it was submitted that there were sufficient similarities in time, place and circumstances between the charges and the jury were entitled to convict by applying mutual corroboration in relation to charges 8 and 24. Here the court refused the appeal. The court considered that the issue was not whether a charge may be corroborated by another charge but, rather, whether the evidence of a single witness speaking to a particular incident of behaviour, may be corroborated by the evidence of another witness speaking to another incident of behaviour which depends upon whether between the two or more incidents there were such similarities in time, place and circumstances in the conduct which demonstrated that the individual incidents are component parts of a single course of criminal conduct persistently pursued by an accused. Here the court considered that the jury were entitled to consider that there were such similarities, for example:- (1) heterosexual acts; (2) perpetrated against younger girls of a similar age; (3) all of whom attended the same school as the appellant; (4) the appellant contacted the complainers via social media; (5) conduct included actual or attempted sexual activity involving penetration; and (6) the appellant repeatedly asked both complainers to engage in the sexual activity. The court considered that any dissimilarities were outweighed by the similarities and the jury were entitled to apply the doctrine of mutual corroboration. In relation to the second ground of appeal and the failure of the trial judge to compartmentalise the various charges the court considered that the general directions on the Moorov doctrine could not be criticised. The jury were directed that the doctrine was available to them for the 19 charges, however, they were also specifically directed that they should take particular care when considering charge 24 due to some of the dissimilarities that existed between charge 24 and the remaining charges. The court considered that the trial judge’s approach not to group the charges in relation to their particular definition was correct given that there was considerable scope for the jury to apply the Moorov doctrine across the various charges.