RMY v. Her Majesty’s Advocate [2018] HCJAC 41

Note of appeal against conviction:- In August 2017 the appellant went to trial at Hamilton Sheriff Court on an indictment containing two charges:- (1) a charge of using lewd, indecent and libidinous practices and behaviour between 1967 and 1970 towards his niece (H) aged 4 to 7 years by handling her vagina and breasts over her clothing; and (2) a charge of using lewd, indecent and libidinous practices and behaviour between 1975 and 1977 whilst in his car towards P aged 10 to 11 years by kissing her on the mouth, inserting his tongue into her mouth, handling her buttocks and breasts, exposing his penis and forcing her to handle his penis. The appellant was convicted of both charges, with some minor deletions to charge 1. The appellant was sentenced to 15 months imprisonment in relation to charge 1 and 30 months imprisonment in relation to charge 2, to be served consecutively. The appellant appealed against conviction on the basis that the sheriff erred in refusing a “no case to answer” submission at the close of the Crown case in terms of section 97 of the Criminal Procedure (Scotland) Act 1995, it being contended that the Moorov doctrine should not apply. It was submitted on behalf of the appellant that there was a considerable period of time (5 to 7 years) between the offences libelled. It was further submitted that the conduct described in the two charges was very different in that the behaviour described by H was opportunistic and limited to two occasions in the home whereas the behaviour described by P took place on numerous occasions, generally away from the home and was planned. It was further submitted that there were more dissimilarities than similarities in the character and the circumstances of the two offences and the sheriff had placed too much weight upon factors such as the absence of a blood relationship between complainers and the appellant. In the event that the doctrine of mutual corroboration should not apply there was no corroboration for either of the charges and the convictions should be quashed. On behalf of the Crown it was submitted that the Crown case has to be taken at its highest and the time interval was not so great as requiring special or exceptional similarities and the similarities in the conduct described by the two complainers were such as to entitle the jury to apply the doctrine of mutual corroboration. It was further submitted that, having regard to Reynolds v HMA 1995 JC 142, it could not be said that, on any view, there was no connection between the conduct described by the two complainers. Here the court refused the appeal. The court affirmed that in assessing the similarities between the conduct described the sheriff required to take the Crown case at its highest and the time interval of 5 to 7 years was not so great to require the sheriff to find exceptional or extraordinary similarities between the conduct. The court was of the view that it could not say that the circumstances as described by the two complainers was such that on no possible view could it be said that there was no connection between the conduct. The court referred to the evidence which disclosed sufficient similarities in time, character and circumstances which entitled a jury to apply the doctrine of mutual corroboration.