R.G. v. Her Majesty’s Advocate [2016] HCJAC 60

Note of appeal against conviction:- On 27 August 2015, at Dumfries Sheriff Court, the appellant was convicted after trial on indictment of two charges of using lewd, indecent and libidinous practices and behaviour towards two girls between 1977 and 1990 (charges 2 and 3). The appellant was acquitted of charges 1 and 4. On 7 October 2015 the appellant was sentenced to 12 months imprisonment. The appellant appealed against his conviction. The Crown relied upon the doctrine of mutual corroboration in relation to charges 2 and 3. The dates of the libel in charge 2 were “on 2 occasions between 1 January 1977 and 31 May 1978 both dates inclusive” and in relation to charge 3 the dates of the libel were “on various occasions between 1 March 1988 and 30 March 1990 both dates inclusive”. The time gap between the allegations in charges 2 and 3 was around 11 years. Here it was submitted on behalf of the appellant that the jury was not entitled to return verdicts of guilty in relation to charges 2 and 3 as the Moorov doctrine should not apply to those charges due to the gap of 11 years and there were no special features which made the similarities compelling. It was further submitted that the sheriff had misdirected the jury in failing to direct them that, given the long time interval, it was necessary for the jury to consider whether there were any special features in the evidence that nonetheless made the similarities compelling. On behalf of the Crown it was submitted that Moorov was applicable notwithstanding the gap in time as there were a number of common features in both charges:- (a) both charges involved pre-pubescent girls; (b) the appellant occupied a position of trust in respect of each complainer; (c) both of the offences occurred in a domestic setting when the complainers were in bed; and (d) both charges involved the appellant exposing his erect penis and the appellant encouraging each complainer to touch his penis and attempting to engage them in conversation about sexual matters. In relation to the second ground of appeal it was submitted that a specific direction was not required and the sheriff had made clear to the jury that the doctrine should be applied with caution. Here the court allowed the appeal. The court stated that the opinion should be read along with the opinion of the court in J.L. v. H.M.A. [2016] HCJAC 61. The court considered that in the present case the similarities between the conduct were superficial and the differences were substantial and there was nothing in the evidence to suggest that this was a course of conduct systematically pursued by the appellant. At the time of the ‘no case to answer’ submission there was a further charge involving a third complainer and the court considered that it could not say that the sheriff had erred in rejecting the ‘no case to answer’ submission. Given that the jury rejected the evidence of that third complainer in acquitting the appellant the jury were left with charges 2 and 3 separated by about 11 years. The court referred to Cannell v. H.M.A. 2009 SCCR 207 and the opinion of Lady Paton at paragraph 31 where it was said:- “...The Appeal Court is reluctant to interfere in such matters, but may do so where, for example there has been a misdirection; or where, following upon a discriminating verdict of the jury, convicting of some charges but not others, certain time lapses emerge between the various incidents which are so excessive in the circumstances that the law would not permit the application of the Moorov doctrine.” Here the court considered that this was such a case and the law could not allow the application of the Moorov doctrine in the particular circumstances of this case, in particular, in light of the interval of time between the two charges.