R.F. v. Her Majesty’s Advocate [2016] HCJAC 52

Note of appeal against conviction:- On 15 April 2015, at Glasgow High Court, the appellant was convicted after trial of 11 charges of the sexual and physical abuse of members of his family between 1976 and 2004. Following his conviction the appellant was sentenced to a cumulo 12 years imprisonment. The appellant was acquitted in relation to charges 5 and 10. The appellant appealed against his conviction in relation to charges 7, 8 and 9. At the close of the Crown case a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 was made in relation to the rape of JB in 1991 (charge 7), lewd, indecent and libidinous practices and behaviour towards NP, his daughter, between 2001 and 2003 (charge 8), lewd, indecent and libidinous practices and behaviour towards NP between 7 May 2002 and 6 May 2004 (charge 9) and lewd, indecent and libidinous practices and behaviour towards RPF, his son, between 19 July 2000 and 13 July 2001 (Charge 10). The appeal related to the trial judge refusing the ‘no case to answer submission’ in which it had been contended on behalf of the appellant that the doctrine of mutual corroboration could not apply between charge 7 and charges 8, 9 or 10 due to the length of time that had elapsed between the events described. The interval between charges 7 and 8 was around 11 years, the interval between charges 7 and 10 was between 9 and 10 years, and the interval between charges 7 and 9 was around 11 years. The trial judge repelled the submission because of what was described by him as a great coincidence between the alleged conduct. It was submitted here on behalf of the appellant that the trial judge erred in repelling the no case to answer submission in relation to charges 7, 8, 9 and 10. It was submitted that it was necessary in the application of the Moorov doctrine that the evidence was capable of showing such similarities in time, place and circumstances in the behaviour in the libel as to demonstrate that the individual instances were not isolated but were parts of a course of conduct systematically pursued by the accused. Secondly, it was submitted that in the present case, the gaps in time between the charges were such as required there to be some compelling or extraordinary feature linking the charges before it could be concluded that they were part of a single course of conduct. It was further submitted on behalf of the appellant that in the event the trial judge was correct to repel the ‘no case to answer’ submission the jury were not entitled to find corroboration in the circumstances of charge 8 alone, the jury having acquitted the appellant of charge 10 as the interval between charges 7 and 8 was even longer than the one between charges 7 and 10 and there were no compelling or extraordinary features present to link the charges nor was there an explanation for the gap in time. It was submitted on behalf of the appellant that, whilst there were common features between the charges there were also significant dissimilarities, for example, JB was over the age of consent, NP was a very young child and the conduct alleged in the other charges was very different from that in charge 7. It was further submitted that the time gap was significant and could not be explained, for example, by the lack of opportunity. On behalf of the Crown it was submitted that it was only extreme cases that should be taken away from the jury and this was not such a case and pointed to a number of similarities which pointed to the conduct as being part of an underlying desire to obtain sexual gratification from vulnerable young female family members regardless of their wishes. In relation to the time interval it was submitted that there is no maximum time interval beyond which Moorov could not apply and the trial judge had been correct to repel the submission. Here the court allowed the appeal in relation to charges 7, 8 and 9 and stated that there was no proper basis that could enable a jury to infer the necessary underlying unity of intent and that the ‘no case to answer’ submission ought to have been upheld. The court stated that it is not correct to say that it is only in extreme cases that a no case to answer submission should be upheld as the issue at that stage is one of sufficiency and whether there is evidence, as a matter of law, within which the jury could find corroboration. The court went on to state that there is no presumption that Moorov applies as the question is whether it could properly be inferred that there was an underlying unity of intent connecting the separate acts. In the present case the court considered that there were no special or extraordinary features linking the conduct nor was there any explanation for the significant gap in time.