K.H. v. Her Majesty’s Advocate [2015] HCJAC42

Note of appeal against conviction:- On 6 June 2014, at Aberdeen High Court, the appellant was convicted after trial of various charges:- (charge 1) rape; (charge 2) assault; (charge 4) culpable and reckless conduct; (charge 5) assault; and (charge 7) rape. The jury returned a verdict of ‘not proven’ in relation to a charge of indecent assault brought under section 3 of the Sexual Offences (Scotland) Act 2009 and charges 3 and 6 were withdrawn by the Crown. On 5 August 2014 the sentencing judge imposed a cumulo sentence of seven years’ imprisonment in relation to the charges the appellant was convicted of. The appellant appealed against his conviction in respect of charges 1 and 7, namely, the rape charges. The circumstances were that the rapes libelled conduct between 1 and 4 November 2004 (in relation to charge 1) and on various occasions between 7 September and 24 October 2012 (in relation to charge 7). The grounds of appeal related to a contention that on the evidence led the jury were not entitled to apply the doctrine of mutual corroboration in relation to charges 1 and 7. In particular, it was submitted on behalf of the appellant that:- (1) there were only two offences; (2) there was a substantial time gap of almost 8 years between the dates of charges 1 and 7; (3) the circumstances of charges 1 and 7 were said to be different; (4) there was an absence of any extraordinary features which would allow such a time gap for the application of Moorov; and (5) there had been intervening relationships which the appellant had had between his relationship with the complainer in charge 1 and his relationship with the complainer in charge 7. It was conceded on behalf of the appellant that there ought to have been made on the appellant’s behalf at the close of the Crown case a submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. On behalf of the Crown it was submitted that the question of whether or not there existed the necessary similarities in time, place and circumstance for the application of Moorov is primarily a question of fact and degree for assessment by the jury and only if it could be said that on no possible view of the evidence could the separate charges be seen to be part of a single course of conduct should the doctrine be taken away from the jury’s consideration. It was further submitted on behalf of the Crown that whilst the time gap was lengthy, that in itself was not a bar to the application of the doctrine and whilst there were a number of dissimilarities between the two charges those could be contrasted with the similarities which existed. Here the court allowed the appeal and quashed the convictions in respect of charges 1 and 7. The court considered that in relation to the two charges there was insufficient evidence to enable a jury to hold that they were part of the same underlying course of conduct. Having regard to the length of time between the two charges (8 years) the Crown was unable to point to a special feature that would have entitled the jury to infer the necessary underlying unity of intent or purpose which is required for the application of the Moorov doctrine. The court also considered the Crown’s invitation for the evidence of witness ‘Y’, who spoke to the circumstances of charge 5, to be available to tie charges 1 and 7 together. The court stated that what was libelled in charge 5, being neither an allegation of rape nor an allegation of conduct having any similarity to rape, was not available to corroborate charges 1 and 7. Given that charges 1 and 7 were quashed the hearing was continued to consider the impact of that on the appellant’s sentence.