Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 100

HCA/2016/000099/XC

Lord Brodie

Lady Clark of Calton

Lord Turnbull

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST CONVICTION

by

JC

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Ogg, Solicitor Advocate;  Gilfedder & McInnes Edinburgh for Ferguson & Co, Stranraer

Respondent:  Farquharson, AD;  Crown Agent

18 November 2016

Conviction and sentence

[1]        The appellant is JC.  He was born on 3 March 1998.  Between 6 and 20 January 2016 he stood trial in the High Court at Glasgow on an indictment which had originally contained 24 charges.  However, charge 4 had been withdrawn before trial and charges 2, 5, 6 and 7 were withdrawn at the close of the Crown case.  The remaining 19 charges all alleged contraventions of provisions of the Sexual Offences (Scotland) Act 2009 over various periods, the earliest of which began on 1 May 2011 and the latest of which ended on 31 March 2014.  Each charge involved a female complainer aged between 12 and 14 years who was younger than the appellant at the date of the relevant offence.  Charges 1, 16 and 23 alleged contravention of section 3 of the Act (sexual assault);  charge 3 alleged contravention of section 2 of the Act (sexual assault by penetration);  charge 8 alleged contravention of section 20 of the Act (sexual assault on a young child);  charges 9, 12, 13, 14, 17 and 19 alleged contravention of section 6 of the Act (coercing a person to look at a sexual image);  charges 10, 11, 15 alleged contravention of section 7(1) of the Act (communicating indecently);  charge 20 alleged contravention of section 24(1) of the Act (communicating indecently with a young child);  and charge 24 alleged contravention of section 37 (1) and (3)(a) of the Act (older children engaging in sexual conduct with each other). 

[2]        After the close of the Crown case a defence submission was made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 in relation to a number of the charges including charge 24.  The trial judge states in his report (para 9) that he repelled the submission on the basis that charge 2 was a charge of sexual assault by penetration and that charges 1 and 16, which were also charges of sexual assault, might be capable of affording mutual corroboration in relation to charge 24.  He notes that charge 23 was also one of sexual assault and that there were other charges in which the complainers had spoken of the appellant requesting that they perform oral sex on him and that these were capable of supporting that aspect of the complainer’s testimony in relation to charge 24.

[3]        In seeking conviction on the 19 charges, the Crown relied upon the doctrine of mutual corroboration;  the appellant did not give evidence and in so far as material to the present appeal gave no comment answers on police interview. 

[4]        On 20 January 2016, the appellant was convicted by a majority verdict of the jury of charges 8 and 19 and by unanimous verdicts of the jury of charges 20 and 24.  The terms of these charges were as follows:

“(008) [B]etween 1 August 2013 and 31 August 2013, both dates inclusive, at […], you […] did sexually assault [AM], born 15 December 2000, […] a child who had not attained the age of 13 years, in that you did repeatedly kiss her, touch her bottom and attempt to induce her to have sexual intercourse with you: CONTRARY to Section 20 of the Sexual Offences (Scotland) Act 2009;

 

(019) between 1 February 2014 and 23 March 2014, both dates inclusive, at […] you […] did intentionally cause [JM], born 26 July 2000, […] to look at a sexual image, in that you did by means of electronic communication send her a picture of your penis: CONTRARY to Section 6 of the Sexual Offences (Scotland) Act 2009;

 

(020) on various occasions between 28 February 2014 and 20 March 2014, both dates inclusive, at […], you […] did intentionally send sexual written communications to [CM], born 2 December 2001, then aged 12 years, […] a child who had not attained the age of 13 years, in that you did by means of electronic communication repeatedly send messages asking her if she wanted an image of your penis and requesting naked photographs of her: CONTRARY to Section 24(1) of the Sexual Offences (Scotland) Act 2009; and

 

(024) on one occasion between 15 March 2014 and 31 March 2014 at […], you […], a child who had attained the age of 13 years but had not attained the age of 16 years, did penetrate sexually with your penis the mouth of [KT], born 10 September 2000, […] a child who had attained the age of 13 years but had not attained the age of 16 years, in that you did penetrate her mouth with your penis: CONTRARY to Section 37(1) and (3)(a) of the Sexual Offences (Scotland) Act 2009.”

 

[5]        On 18 February 2016 the appellant was sentenced in cumulo to a Community Payback Order for a period of 3 years with supervision and programme requirements and an unpaid work requirement of 150 hours, to be completed within six months. 

 

Appeal

[6]        The appellant has appealed his convictions in respect of charges 8 and 24, an appeal against sentence having been abandoned.  

[7]        Miss Ogg, who appeared for the appellant, formulated the grounds of appeal as follows: 

1. There were insufficient similarities between charges 8 and 24 to allow the application of the Moorov doctrine, in particular it cannot be said that the similarities in time, place and circumstances in the conduct complained of are sufficient to demonstrate that the individual incidents in the respective charges are component parts of a course of criminal conduct pursued by the appellant.
2. The trial judge erred in his directions to the jury in relation to the Moorov doctrine in that he failed to “compartmentalise” the charges in the indictment which were available to corroborate one another and gave only an overall direction as to the criteria to be applied in determining whether the doctrine could be applied.

 

Circumstances of the offences

[8]        The trial judge reports as follows on the evidence led at trial in relation to the four charges of which the appellant was convicted.  

“There are similarities between the charges in that in each case the appellant contacted via social media a younger girl whom he knew through attending the same school. The Crown relied upon the doctrine of mutual corroboration in relation to most of its case; the appellant did not give evidence and he gave no comment answers in police interviews in relation to these four charges.

 

AM, the complainer in charge 8, was a former pupil of [the school attended by the appellant, hereinafter ‘the school’]. She had gone to live in England with her family when she was 13 years of age. When the complainer was 12, the appellant had contacted her through social media (Facebook) and asked her to meet up with him. At first she had said no, but she eventually agreed after he had asked her quite a few times. They had met in a street close to his house; no one else had been there. At first they talked, after which they hugged. He started touching her on the bottom, and then he pulled her closer and kissed her. He asked her to come to his house and said to her, ‘We will use protection’. She understood that to mean having sex. She was quite shocked and said no to his request. They had kissed each other but she had not wanted him to touch her on her bottom. He knew her age because she was a couple of years below him at school. She made the excuse that her mother would be worrying about her and left. He had stopped talking to her after that and sex was never mentioned again between them. She spoke to further exchanges via social media (Snapchat) in 2014 which related to charge 15, a matter which resulted in acquittal. In cross-examination, she said that she might have got the wrong idea and she did not know if he might have been joking, but she definitely remembered him speaking about using protection. They were not discussing sex at the time.

 

JM, the complainer in charge 19… knew the appellant through someone in her village. They had been in contact by means of social media (Facebook) where they had what she described as ‘the odd conversation, nothing serious’. On one occasion when she was 13 years of age she had received a Snapchat image from him which was a picture of his erect penis. His face was not visible but red-coloured bedclothes containing football imagery relating to Liverpool or Manchester United could be seen. Images only remain on Snapchat for a limited period of ten seconds and it had gone. She had not wanted or expected to receive the image and had found it ‘a bit of a shock’. After that they had only communicated on Facebook occasionally and had not spoken in person. In cross-examination, when shown telephone records (Crown production 18), she accepted that she had exchanged texts with him in February 2014 in the course of which she had confirmed that she was on Snapchat and she had provided her username to him. When he had proposed that they exchange pictures, she replied, ‘You go first’. Her recollection was that the picture had been received on an occasion after that, not immediately. She accepted that some messages had been exchanged which were flirtatious in character. She accepted that she had told the appellant in a text that she was 14. She had gone to meet him at a house in her area once but he had not been in and they had exchanged texts about meeting.

 

CM, the complainer in charge 20, was a pupil of [the school]. When she was 12 years of age, the appellant added her on social media (Snapchat) and they had started talking through electronic media. She thought that he was in fourth year at the time and that he knew she was in first year. Generally he was nice to her but on one occasion he suggested that if she sent him naked pictures of her he would send some back. She was ‘quite shocked’ as up until that point they had been having a normal conversation and she refused. No pictures were exchanged. They resumed speaking normally to each other. On the following night he had asked her again and she had refused again. After that they had spoken to each other normally.

 

KT, the complainer in charge 24, was a pupil of [the school]. The appellant had been a few years above her at school and they had communicated with each other by sending texts through social media (Blackberry messaging (BBM)). They had also made contact on Facebook and had met in person both in and outside school. Initially she had thought him to be a really nice person but they had not dated each other. She thought that she was 12 or 13 when they had last exchanged messages and that he had been 15 at the time. He asked her to stay off school and to go to his house. She went to school. He sent her a message saying he wanted to have sex and she said no; he may have used the word “fun” but she thought that was a reference to sex. They met in a park frequented by young people from the area and he asked her to give him a ‘blow job’, meaning to perform oral sex. She refused but he asked her repeatedly. She decided that she would because she liked him so she said, ‘Right, okay’. He had pulled down his trousers and pants and placed his penis in her mouth for a minute or two but she did not like it so she stopped. He did not ejaculate. She told him that she did not feel comfortable and that she wanted to go home. He accepted that, they parted and the incident came to an end. This was sometime during late March in 2014, when she was 13. In cross-examination, under reference to records of telephone messages (Crown production 18), she accepted that in a text exchange earlier in the day, arranging to meet, there had been reference to him getting a ‘blow job’ and that she must have known that he would ask for that when they met that evening.”

 

Charge to the jury

[9]        The trial judge gave directions to the jury on the concept of mutual corroboration in a passage which appears between line 12, page 57 and line 2, page 63 of the transcript of his charge.  They include the following:

“There is in our law an important element of the law of evidence which may be applied in certain circumstances; the concept of mutual corroboration. It applies to the charges in this case...

 

This doctrine can apply where an accused is charged with a series of similar crimes and the commission of each crime is spoken to by one credible and reliable witness and the accused has been identified by each of those witnesses as the person responsible for the commission of the crime.

 

In that situation, if you are satisfied that the crimes charged are so closely linked by their character, by the circumstances of their commission and by their closeness in time to each other as to demonstrate that they are examples of a single course of criminal conduct which has been systematically pursued by the accused you could find the evidence of one witness about the commission of one offence to be corroborated by the evidence of another witness about the commission of another similar offence. They can corroborate each other in that way...

 

It is not enough if all that is shown is that he had a general disposition to commit this kind of offence and that consideration is particularly important in relation to your consideration of charge 24, the charge under S.37 which I have just mentioned because while a number of witnesses say … a number of the young girls as witnesses had said that the accused had been asking them for oral sex in the form of what was described as a blow job, this is the only charge in which penetration of that sort actually is said to have occurred and you would have to be careful to apply the doctrine in relation to that. It has to be a reflection that the accused is pursuing a particular course of criminal conduct and not that he's got a general disposition to commit some sexual offences.

 

So the Crown says, overall, that amongst the charges here there is a clear indication that this was a systematic course of conduct and that, therefore, the doctrine can be applied, a mutual corroboration amongst the various charges.

 

On the other hand, Mr Gilfedder has pointed to a number of instances where there are clear differences between types of charge or between types of sexual activity such that it would not be appropriate for you to apply the doctrine and particular[ly] in relation to the sexual assault charges on the one hand and any other form of sexual activity and, indeed, as was indicated by Mr Gilfedder, charge 24 is also seen as being in a separate category and the defence argument is that you couldn't apply the doctrine. You cannot apply the doctrine to charge 24, indeed, to any of the other charges. You cannot convict of any charge in that category.”

 

The trial judge also gives the following direction (lines 9 to 19, page 68):

“The Crown has withdrawn charges 2, 5, 6 and 7 and as you heard and saw, [the appellant] was formally acquitted of those charges. You did hear some evidence about those charges; they concerned [PW] and [NH]. You may take that evidence, the evidence relating to those charges into account insofar as you consider it may assist you in determining the remaining charges if you find that of assistance.”

 

Submissions

Appellant
[10]      In support of the first ground of appeal, Miss Ogg submitted that the appellant’s conviction in respect of either charge 8 or charge 24 was periled on the respective complainers’ evidence being capable of providing mutual corroboration one of the other.  The evidence led in support of charges 19 and 20 might point to a general disposition on the part of the appellant to offend against younger girls but it was not capable of providing the necessary corroboration;  an act of oral penetration was of a different order and nature from the conduct involved in sending an indecent image: LB v Harrower 2011 SCCR 393 at paragraph [3].  Although there were some similarities in the conduct between charges 8 and 24, such as an arrangement to meet a younger girl made via social media and a suggestion of sexual activity in each case, these were insufficient to allow the jury to conclude that these charges were part of a course of conduct persistently pursued by the appellant.  The dissimilarities outweighed the similarities.  Charge 8 involved very low-level sexual conduct with a younger child, as defined by the Act, to which she did not consent, together with a fairly fleeting suggestion of sexual intercourse.  Charge 24, in contrast, involved oral sex with the agreement of the complainer which was rendered criminal behaviour only due to the ages of the appellant and the complainer (both being older children).  Accordingly the necessary similarities in time, place and circumstances in the conduct complained of as between charges 8 and 24 were not present and the doctrine of mutual corroboration could not be applied.

[11]      In advancing the second ground of appeal, Miss Ogg began by acknowledging that there was no issue about what the trial judge had said about the Moorov doctrine.  Her complaint was about what he had not said;  the trial judge had not “compartmentalised” the indictment, by which she meant that he had not indicated the groups of charges within the 19 left for the jury’s consideration, which, because of their similarity in character and the similarity of the conduct libelled, were capable of corroborating one another.  On Miss Ogg’s analysis the 19 charges fell into three groups or categories:  contraventions of section 6

(coercing a person to look at a sexual image); contraventions of section 7(1) of the Act (communicating indecently) or section 24 (1) of the Act (communicating indecently with a young child);  and the contact offences.  Miss Ogg had never come across a case where no attempt had been made in a jury charge to discriminate among charges which were as different one from another as the charges here.  As it was the trial judge had left it so that it was open to the jury to apply the evidence led in support of any of the charges to corroborate the evidence led on any of the other charges.  That the trial judge felt it necessary to give a specific direction on charge 24 indicated that he was uneasy about that.  He should have gone further and made it clear to the jury that while conviction on any of the charges depended on their applying the Moorov doctrine, the evidence of only certain of the charges was capable of supplying corroboration to the evidence of only certain of the other charges.

 

Respondent
[12]      Despite having made enquiry, the advocate depute had been unable to ascertain how the trial advocate depute had presented the case to the jury but in responding to the appellant’s submission that there were insufficient similarities between charges 8 and 24 for mutual corroboration to apply certain themes were of relevance.  As the trial judge had recognised, charge 24 stood alone because it alleged an actual act of penetrative activity involving the appellant’s penis.  In a portion of his charge which was beneficial to the appellant (line 12, page 61 to line 5 of page 62 of the transcript) the trial judge asks the jury to take particular care in relation to charge 24.  However, when considering whether the evidence led in support of one charge might corroborate the evidence led in support of another, it was an error to restrict that consideration to the terms of the libel.  It was necessary to step back and look at the whole circumstances.  While the terms of charge 8 might appear to be very different from the terms of charge 24, the evidence led in support of them demonstrated important similarities.  The respective complainers in the two charges were within a year of one another in age at the relevant time:  12 years and 8 months for the charge 8 complainer, 13 years and 6 months for the charge 24 complainer.  It was the appellant who had initiated contact in each case.  In each case he had used social media to make contact.  He knew both complainers from school.  He had met each in a public place.  He had invited the complainer in charge 8 to his house saying he “would use protection”, a remark from which it might be inferred that he was proposing a penetrative sexual act.  He asked the complainer in charge 24 to stay off school and to go to his house.  He repeatedly asked the complainer in charge 24 for oral sex.  The outcomes in the two cases were different but that had to do with the reactions of the complainers to what the appellant had proposed;  it had nothing to do with any difference in the behaviour of the appellant.  Here there were similarities in time, place and circumstances.  The jury were entitled to convict by applying mutual corroboration as between charge 8 and charge 24 without having regard to the evidence of indecent communications which had been led in support of charges 19 and 20 albeit that evidence had also been relevant to charges 8 and 24.

[13]      Turning to the second ground of appeal, it was the advocate depute’s submission that the exercise which had been suggested by Miss Ogg was overly complicated and artificial.  It was to take too strict a view of the libel to discriminate among the charges in the way that Miss Ogg had suggested.  The trial judge had given directions on the criteria for application of the Moorov doctrine which had been accepted as correct.  He had urged the jury to look particularly carefully at charge 24.  It could not be said that he required to do more:  see McAskill v HM Advocate [2016] HCJAC 64.

 

Decision

[14]      The appellant submits that there was insufficient evidence which the jury can be taken as having accepted as credible and reliable to establish that the appellant was guilty of charges 8 and 24 on the indictment.  The Crown, on the other hand, while accepting that only one witness spoke to the allegations in each of these charges, relies for sufficiency on the principle of mutual corroboration.  According to the advocate depute that principle would have permitted the jury to have regard to the evidence which they must have accepted in convicting of charges 19 and 20, but she was prepared to meet the first ground of appeal on the basis that it was the evidence led in support of charges 8 and 24, and only the evidence led in support of charges 8 and 24, which was relevant. 

[15]      As Lady Dorrian observed in CW v HM Advocate 2016 SCCR 285, while it is usual to talk about one “charge” being corroborated by another through an application of the Moorov doctrine, that can be misleading.  What may or may not be corroborated is the evidence of a single witness speaking to a particular incident of behaviour, the question being whether the evidence of another witness speaking to another incident of behaviour can provide that corroboration.  That in turn depends on whether, as between the two or more incidents there are “conventional similarities in time, place and circumstances in the behaviour proved such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused”:  MR v HM Advocate 2013 JC 212 at paragraph 20.  As the Lord Justice General said in McAskill v HM Advocate (delivering the opinion of the court, at paragraph 26):

“The search is for evidence indicative of an underlying similarity between the circumstances of the offences such as to enable the conclusion to be drawn that there was a course of conduct which was being persisted in by the appellant. It is a question of fact and degree whether the nature of the evidence is such that it would be legitimate to draw the inference that the incidents were indeed components in one course of criminal conduct, CW v HM Advocate 2016 SCCR 285 per Lady Dorrian, at para 31).”

 

As Lady Dorrian further observed in CW, at paragraph 31, an inference that there is an underlying course of conduct may be drawn where the offences in respect of which the evidence under consideration was led were not exactly the same.  Moreover (although this was not suggested to be so in the present case), in any particular trial the existence of an underlying course of conduct may not be entirely a matter of inference, there may be direct evidence of a “project, campaign or adventure” on the part of the accused (to use the language of the Lord Justice General in Moorov v HM Advocate 1930 JC 68 at 73).

[16]      In the present case we consider that the jury were entitled to hold that the necessary underlying similarity of time, character and circumstance was present in the evidence led in support of charges 8 and 24 for mutual corroboration to apply.  The significant features of similarity were that one person was involved as perpetrator in each charge, the acts were all heterosexual in nature, perpetrated against younger girls of a similar age that the appellant knew through attending the same school, that he contacted them via social media to arrange a meeting and that what then occurred included actual or attempted sexual activity involving penetration.  In each case the appellant met the complainer alone and suggested that sexual activity took place.  In charge 8 the libel states that he did “repeatedly attempt to induce [AM] to have sexual intercourse” and the evidence disclosed that the appellant contacted AM repeatedly to ask her to meet up with him and, when she eventually agreed, he asked her to have sex with him.  In charge 24 the evidence discloses that the complainer was asked to have sexual intercourse and that she said no.  When they then met in a park, he asked her to perform oral sex on him which she “refused but he asked her repeatedly” so she then decided that she would.  The complainer in charge 8 refused, whereas the complainer in charge 24 agreed before changing her mind at which point the sexual activity stopped.  The outcomes were accordingly somewhat different (and accordingly the ways in which the charges were formulated) but, as the advocate depute submitted, this was due to the different conduct of the respective complainers, not because of a difference in the way in which the appellant had behaved.

[17]      There were dissimilarities as between the charges but we see these as outweighed by the similarities to which the advocate depute drew attention.  The fact that the requests were repeated in nature, the subject matter of those requests and the relatively short period of time as between the charges all formed a sufficient nexus as between the two charges.  Given that there is no rule that what might be perceived as less serious criminal conduct cannot provide corroboration of what is libelled as more serious conduct and that the fact that some of the charges involve penetrative sex and others do not cannot be regarded as decisive, the jury were entitled to hold that the necessary underlying similarity was present and to rely on the complainer testifying to one incident as corroborating a different complainer testifying to another incident.  The jury were therefore entitled to find an underlying unity of intent, project, campaign, or adventure, which lay beyond or behind, but was related to, the separate acts.  The first ground of appeal must be rejected.

[18]      We can deal with the second ground of appeal relatively shortly.  No issue is taken with the general directions given to the jury with regard to the application of mutual corroboration as between the charges.  The jury were directed that the doctrine was available for them to apply across the 19 charges and that they should take particular care when considering charge 24.  The jury were not directed that they could not apply the doctrine as between charges 8 and 24.  The trial judge states in his report that he did not group the various charges together for the purpose of defining the crimes in relation to the principle of mutual corroboration because there was considerable scope for the jury to apply the doctrine across the remaining charges.  We agree with that assessment.  As the Lord Justice Clerk, as he then was, put it in McA v HM Advocate 2015 JC 27 at paragraph 11:

“... the trial judge was correct to report that it is inappropriate to approach matters in a compartmentalised way. The fundamental point remains that of whether the evidence is capable of indicating a course of conduct systematically pursued by an accused. The individual behaviour exhibited at different times may vary, but it is the course of conduct as a whole which must be examined. The fact that only some of the incidents in a course of conduct involved penetration, while others do not, does not lead to the conclusion that they cannot all be part of one course of conduct. The fact that only the first and final charges involved any form of penetration does not mean that only those two charges should be looked at when considering whether there is a sufficient temporal link, and links by way of other facts and circumstances, sufficient to provide the necessary mutual corroboration.”

 

[19]      Here, as we have already indicated, the evidence led in support of charge 8 was capable of corroborating the evidence led in support of charge 24.  The trial judge considered that there were dissimilarities as between charge 24 and the other charges before the jury which merited his drawing particular attention to it and the need for the jury to exercise particular care in the application of mutual corroboration.  He did that and it cannot be said that he was wrong to do so, but to have “compartmentalised” charge 24 in the way suggested by Miss Ogg would have been an error.  The second ground of appeal must be rejected.

[20]      The appeal is refused.