|
HIGH COURT OF JUSTICIARY
[2007] HCJ17
|
|
|
OPINION BY LORD
BRODIE
in the Minute by
T. McK
in the cause
HER MAJESTY'S
ADVOCATE
against
T. MCK., M.J.C. and J.A.MCK
ннннннннннннннннн________________
|
Minuter (First Accused): Moir; Brian Gregg, Solicitors
Crown:
Ablett, AD; Crown Agent
22 August 2007
Introduction
[1] This case called before me
for a continued preliminary hearing on 22 August 2007, one of the purposes
of which was to hear an application at the instance of the first Accused and
Minuter, T. McK, for the separation of the two charges on the indictment
which concerned him. These are
charges (1) and (3). I heard
Mr Moir on behalf of the Minuter and the Advocate Depute in reply. I further continued the hearing until 28 August 2007 with a view to
determining future procedure in the light of the submissions which had been
made.
The indictment
[2] Charge (1) on the
indictment is subject to certain bail aggravations relating to the second and
third accused. Ignoring these bail aggravations,
charges (1) and (3) on the indictment are in the following terms:
"(1) on 7
and 8 December 2006,
both dates inclusive at 70A Seedhill Road, Paisley, you T.
McK, M.J.C. and J. A. McK. did force entry to the house there, occupied by
Richard Manser, c/o Strathclyde Police, Mill Street, Paisley, and did
assault said Richard Manser, utter threats of violence to him, brandish
knives or similar instruments at him, demand money from him, strike him on the
head with a knife or similar instrument, repeatedly punch him on the head, bind
and gag him and detain him against his will in said house, threaten to kill him
and repeatedly strike him on the head with a knife or similar instrument, all
to his severe injury and permanent disfigurement and did thereby rob him of
personal papers and a bank card;
... and
(3) on
3 February 2007 at 22 Waverly Road, Paisley, you T. McK did, whilst
acting with another whose identity is to the Prosecutor meantime unknown, force
entry to the house there, occupied by Gary McKay, and did there assault
said Gary McKay, repeatedly strike him on the body with knives or similar
instruments all to his severe injury and to the danger of his life and did
attempt to murder him."
The argument
[3] The
basis of the submission made on behalf of the Minuter lay in an assessment of
the evidence available to the Crown in support of charge (1). The position set out in the Minute lodged on
behalf of the Minuter and developed by Mr Moir in submission was that
there was simply no corroboration whatsoever of the complainer's account
insofar as it related to the Minuter (the position was different in relation to
the second and third accused). The
inevitable outcome if the Minuter went to trial on the present indictment would
be that, in the event of the Crown insisting on charge (1), a submission
of no case to answer would be made and would succeed. However, by that time the jury would have
heard evidence implicating the Minuter in the assault and robbery of the
complainer in that charge. That could
not but prejudice their minds when considering charge (3), for which
Mr Moir accepted there was corroboration.
No direction that the trial judge might give could cure that prejudice. Given the absence of corroboration for
charge (1) if considered in isolation, Mr Moir anticipated that the
Crown would rely on the doctrine of mutual corroboration as between
separate charges associated with the decision in Moorov v HMA
1930 JC 68. It was Mr Moir's
submission that while what was alleged in charge (1) occurred close both
in time and as to locality with what was alleged in charge (3), there was nevertheless no sufficient nexus
between the two charges as to allow the doctrine to be applied, as the Crown
was or ought to be aware. Accordingly,
by seeking to lead evidence in support of both charges at one trial in
circumstances where it was clear that it would not be able to ask for a
conviction on charge (1) in respect of the Minuter, the Crown was acting
oppressively. The court has the power to
prevent this. Mr Moir did not
suggest that the Minuter should not be tried, together with the second and
third accused, on charge (1) but he submitted that this should be
separated from the Minuter's trial on charge (3) (in respect of which only
he is currently indicted).
[4] The
Advocate Depute took no issue with Mr Moir's underlying approach: that if the court was satisfied that there
was indeed no corroboration available to support the complainer's account of
the Minuter's involvement in charge (1) it would be entitled to separate
the charges with a view to avoiding the unfairness of leading evidence of an
offence which could not be proved at the trial where another offence, in
respect of which there was a real issue, was also charged. However, it was the submission of the
Advocate Depute that there was a sufficiency of evidence for
charge (1). That was so if the
charge was considered in isolation but this was also a case where
charge (1) taken with charge (3) afforded mutual corroboration one
for the other.
The evidence
[5] The argument outlined above
could only of course be advanced on the basis of an agreement between the
parties as to what was the evidence available to the Crown. It was with a view to establishing what it
was that, on the basis of precognition, the Crown might be able to prove that
the preliminary hearing had been continued from 20 July 2007.
Agreement had been reached and I was invited to consider the respective
contentions of the parties under reference to a written statement of what the
Crown considered it in a position to lead by way of evidence. I set out that statement (subject to some
very minor editing) below.
Charges (1) and
(2)
[6] Prior to the incident forming
the basis for charges (1) and (2), the complainer Richard Manser
had for some three years been involved in a relationship with the third
accused, J. McK. The Minuter,
T. McK is the father of J. McK, and is also known to the complainer. At the time of the incident which is the
subject of charges (1) and (2) the second accused M. J. C. was the
boyfriend of J. McK.
[7] The locus of the incident was Richard Manser's
home at 70A Seedhill Road,
Seedhill, Paisley.
The primary source of evidence for charge (1) against T. McK.
is that of Richard Manser. His
evidence is that at about 2100 hours on Thursday 7 December 2006, he was at home at
70A Seedhill Road when
his doorbell rang. He went to the bay
window of his living room, and looked down to his front door. He saw J. McK., standing alone at his
front door. The complainer made his way
down the internal stairs to the front door.
He allowed J. McK. to enter.
They ascended the stairs and entered Mr Manser's house. Thereafter a brief conversation took place,
with J. McK. asking for money for cigarettes. The complainer gave г2.50 to J. McK.
and she left with the stated intention of going to a nearby shop. She returned a short time later, shouting
from outside "Richard, Billy's closed", referring to the local shop. The complainer shouted from his window that
she should try a nearby grocer. Moments
later, the complainer's front door was forced open, and three persons entered
the living room: the first accused T. McK;
a male later referred to as "M.", and J. McK.. T. McK. and M. were holding knives. T. McK. is described as holding a large
knife or machete. M. had a "samurai type
sword". T. McK. was the more
aggressive, waving his knife in the complainer's face. The complainer was forced to sit on the
settee. T. McK. shouted at him that
he had "ruined his daughter".
T. McK. then struck out with a knife at the complainer, striking
him at the side of his left eye, as a result of which the complainer was
injured and started to bleed.
T. McK. then continued to threaten the complainer, stating inter alia that he would stab him in the
chest. T. McK. then asked the
complainer how much money there was in the house. The complainer indicated that he had only г25. T. McK. then stated he wanted all Mr Manser's
bank cards. The complainer stated that
he only had one card, to which the accused T. McK. stated, "Right, I want
that card". The complainer retrieved his
wallet from a locked cabinet. The wallet
and the complainer's card were snatched from him by M.. The card was handed to J. McK. T. McK. and M. then held their knives at
the head and chest level of the complainer, approximately six inches away from
him. All three of the intruders asked
the complainer for his pin number. The
complainer provided it. J. McK.
wrote the pin number down on a piece of paper, and left the house. She was wearing a white coat. Within the house, the complainer sat down
again on the settee. Between
approximately 9.30pm and midnight, the complainer, T. McK. and M.
watched television. During that time, T. McK.
mentioned the complainer's relationship with J. McK and L. A. B.,
his ex-wife/partner, and continually threatened the complainer with violence. M. suggested that the complainer had a
"stash" of money somewhere. The
complainer directed him to approximately г20 in a bedroom. T. McK. stated to the complainer that
the incident had been planned, that he had an alibi and that he would burn all
of his clothing after the incident.
[8] Officials
of the Bank of Scotland are able to confirm that the following withdrawals were
made from the complainer's account, using the bank card taken from the
complainer's house: 1. 2125 hours on 7 December 2006 -
г200 withdrawn from Bank of Scotland ATM in Glasgow Road, Paisley; 2.
2127 hours on 7 December 2006 - г100 withdrawn from Bank
of Scotland ATM in Glasgow Road, Paisley; and 3. 0037 hours on 8 December 2006 -
г300 withdrawn from Bank of Scotland ATM in Neilston Road, Paisley. Thus a total of г600 was withdrawn. The first ATM is very close to the
complainer's house. The second ATM on Neilston
Road is between a mile and a mile and a half away. At around the time that the last withdrawal
was made, images were captured by the CCTV system of a shop in Neilston
Road, close to the Bank of Scotland on Neilston
Road. Two
witnesses have viewed the images, and will confirm that they include that of a
person matching the general description of J. McK., and wearing a white
coat, on Neilston Road at
around the time of the final withdrawal.
[9] At
the complainer's house, T. McK. frequently went to the living room window,
looking for J. McK. Just after midnight he stated he was going out to look for
her. M. found plastic cable ties and
duck tape in the cupboard within the house, and brought the items into the
living room. T. McK. and M. then
tied the complainer's wrists with the cable ties. T. McK. then obtained a sponge from the
kitchen sink, returned and instructed the complainer to open his mouth. T. McK. then placed the sponge in the
complainer's mouth, and wrapped the duck tape around the complainer's head,
securing the sponge in place in the complainer's mouth. T. McK. then left the house.
[10] At around 0040 hours on Friday 8 December 2006, T. McK. and
J. McK. returned to the house.
J. McK. became aggressive.
She punched the complainer's face, striking his left eye, and causing
the previous injury to bleed. She
continued to punch him. T. McK.
restrained her. They then left the
living room and went into the kitchen area.
Both then returned. J. McK.
was in possession of a small black handled knife. She and T. McK. stood in front of the
complainer. T. McK. said, "Slash
him" and J. McK. then said to the complainer something along the lines of "You
are getting what you deserve." J. McK. then began to strike the
complainer's face with the knife.
T. McK. then said, "Here" and pointed to the right side of Manser's
face. J. McK. struck the complainer
on the right hand side of his face. The
attack then stopped.
[11] Various personal papers, the complainer's diary, and a
collection of pornographic films were packed into polythene bags and all three intruders
collected the bags, their used drinks cans, cigarette ends and left the house.
[12] The complainer freed himself from the ties, and removed the
tape and sponge from his head and mouth.
He looked out of his window and watched the three intruders walk away. He then telephoned the police and an
ambulance. At about 0100 hours
police officers were instructed to attend at the complainer's house and did so. They found the complainer there, injured,
with cable ties on his wrists and tape around his neck. He gave the officers an account of what had
happened, naming T. McK. and J. McK. as being involved, together with
a male called M.
[13] The complainer was taken by ambulance to the Royal
Alexandra Hospital,
Paisley. He was
found to have a 4 centimetre laceration above the left eyebrow which
required 3 sutures, a 10 centimetre horizontal superficial laceration
under his left eye, and a 5 centimetre laceration forming a flap under his
right eye which required 6 sutures.
He has also sustained a lump to the right side of his forehead
approximately 4 x 3 centimetres in size. The lacerations were consistent with him
having been struck with a knife. He was
detained overnight for observations in Ward 22 of the Royal
Alexandra Hospital. At hospital, the complainer was interviewed
by the Police, and a statement was noted from him. He was shown twelve images of males including
that of the accused T. McK., and the complainer identified T. McK. as
one of those involved in the attack on him.
He was then shown a set of images of females, including that of
J. McK., and he identified her as having been involved in the attack. The complainer described T. McK. as
wearing a navy blue tracksuit top and bottoms with a white stripe and crest
logo and trainers. The witness can
identify the accused. He described
J. McK. as wearing a long white coat with a hood and a vest top with pink
or orange markings, blue jeans and white trainers. He described M. as using a towel across his
face to mask it. He was wearing a dark coloured
anorak with a hood, and silver-grey tracksuit bottoms.
[14] It
was established that J. McK. was residing at a flat in Paisley. Police Officers went to that address,
arriving there at 11.30am. There they found the three now accused, T. McK., J. McK.
and M. J. C. together at the flat.
C. identified himself as J. McK.'s boyfriend. All three were detained in terms of Section 14
of the Criminal Procedure (Scotland) Act 1995
and taken to Paisley Police Office. They
were later interviewed, cautioned and charged.
They made no reply.
[15] A
warrant was obtained for a search of J. McK.'s house and at about
1525 hours on Friday 8 December
2006 Police Officers went to the flat in Paisley. A full search was carried out during which
the police officers recovered the following items:
1. A white coat with hood, found on top of
chest of drawers in main bedroom. This
was subsequently shown to the complainer and he identified the coat as that
worn by J. McK. during the incident.
2. A pair of grey tracksuit bottoms found
on top of the chest of drawers under the white coat in the main bedroom. These were subsequently shown to the
complainer and he identified them as the bottoms worn by the person referred to
as "M.".
3. A pair of black Adidas tracksuit
trousers found on the floor of main bedroom.
Within the rear pocket was found a cigarette packet containing г565 in
cash. Within the left hand pocket there
was г7.76 in coin.
[16] A
forensic examination of the black tracksuit trousers was carried out, and a
blood stain was identified. DNA was
extracted from the bloodstain. That DNA
matches the complainer's DNA. Further
DNA matching that of J. McK. and M.J.C. was identified on the tracksuit
trousers.
Charge
(3)
[17] The locus of the incident which forms the
basis of charge (3) is the flat in Paisley. This is a residential flat within a tenement
block accessed by a controlled entry and common stairwell. There are front and rear communal garden
areas.
[18] At
about 2310 hours on Saturday 3 February
2007 the complainer, Gary McKay, and his partner,
Heidi Blane, were at home when two males came to the front door and
knocked. Mr McKay went to the door
and shouted "Who is it?" He then heard a
male voice say "I am looking for M.." The complainer did not recognise the
voice and looked out of the spy hole fitted in his door. The glass of the spy hole was damaged and
limited his view, but he could see a figure dressed in a black jacket and white
tracksuit trousers. Mr McKay said "You
have the wrong house." He then heard a second male voice, who appeared to be
instructing the first male and who then stated "I am looking for
M. S". Again the second male
appeared to speak to the first male.
Mr McKay believing the male to be attempting to source drugs stated
that the only M. he knew was at an address in Paisley (M. McK.,
a relative of T. McK. and someone known to him). Both males then left the doorway and Mr McKay
made his way to the front living room window from which he looked into the
street and observed a male wearing a black jacket and white tracksuit trousers
making his way towards the address.
Mr McKay believed the male to be holding his jacket collar at his
face or walking with his face turned away in an effort to conceal his identity.
[19] About
2330 hours, same day, Mr McKay and Ms Blane were still within
their home watching television with their children sleeping in the bedroom,
when their front door was forced open by two males in possession of large
kitchen knives. Both males were wearing
hats and scarves which covered their faces.
Immediately Mr McKay rose to his feet and ran into the kitchen
pursued by the two males. The first male
that entered the kitchen area was wearing a black jacket and white tracksuit
trousers. Mr McKay threw a glass
containing orange juice at this male. Both
males then began to stab at Mr McKay, who attempted to struggle with the
males. He kicked out at the second male. The second male's scarf fell from his face
and McKay immediately recognised him as T. McK.. McKay kicked out at McK., grabbed at him and
attempted to force him to the ground. During
this the male in the black jacket and the white tracksuit trousers was stabbing
at Mr McKay. McKay was on his side
on the floor of the kitchen. He was
still holding the male in the black jacket, while attempting to pull himself up. At this point he felt the male stab him in
the thigh.
[20] T. McK.,
who had been knocked to the floor, rose to his feet and stabbed McKay in the
stomach. T. McK. then fled from the
kitchen and the locus. Throughout the
assault the witness McKay was aware of T. McK. and the other male was
shouting at him, the phrases included "Ya fucking bastard".
[21] The
male in the black jacket and white tracksuit trousers remained in the kitchen after
T. McK. fled. He turned to Ms Blane,
who had remained at the door of the kitchen door, hysterical. The male in the black jacket stated to Blane "Ya
cow". At this point McKay realised that he
was seriously injured but nevertheless picked up a knife in an effort to
protect Ms Blane. He dropped the
knife moments later when the male in the black jacket and the white tracksuit
trousers fled from the house. Ms Blane
then telephoned the witness Mr McKay's mother and an ambulance.
[22] The police were
notified at 2334 hours, on the same day.
An ambulance crew attended the locus and Mr McKay was conveyed to
the Royal Alexandra Hospital where he was
admitted to the resuscitation treatment room and stabilised. He was thereafter admitted to Ward 24
where he was being treated for twelve stab wounds, one stab wound to the chest,
which caused a collapsed lung, eleven further stab wounds in the abdominal
area, limb and chest and two fractured ribs.
[23] Both
witnesses Mr McKay and Ms Blane are able to identify T. McK. as
one of the men who forced their way into their house and assaulted the
complainer.
Discussion
[24] The accumulation of
outstanding charges in one indictment is usual.
Charges will be separated very rarely and only in exceptional
circumstances where a very strong and special reason is shown: HMA v Bickerstaff 1926
JC 65 at 80. It is normally
assumed that it is in the public interest that analogous matters should be
tried together where possible: Johnston
v HMA 1996 SCCR 808 at 816C. A motion to separate charges will only be
granted if there is a material risk of real prejudice: Reid v HMA 1984 SLT 391, Jackson v
HMA 1992 SLT 370 at 373, Toner v HMA 1995
SCCR 697. In Reid v HMA
supra, which has been consistently followed, Lord Justice General
Emslie put the matter this way, at 392:
"For centuries
it has been the practice to try all outstanding charges against a single
accused on a single indictment at the same time. It is pointed out in Hume, ii, 172: 'This is allowed, not only for the sake of
doing justice as expeditiously, and with as little expense and trouble as may
be to the public, but also (provided it is kept within certain bounds) for the
advantage of the panel; that he may be relieved of a long confinement, and of
the anxiety and distress which would attend a series of successive trials.' It
is only where a material risk of real prejudice to the accused can be
demonstrated that a trial judge will normally be justified in granting a motion
for separation of trials and, let it be said at once, it simply will not do for
an accused to contend as was done in this case, that such a material risk of
real prejudice arises merely because the charges in an indictment are of
different places and circumstances. If
that proposition were to be accepted it would also have to be accepted that
several charges of crimes of the same kind, eg theft by housebreaking committed
at different times and places and in different circumstances must carry an even
greater risk of prejudice and should never be tried together."
[25] It was because Mr Moir saw there as being a material risk
of real prejudice if the Minuter were obliged to stand trial on an indictment
containing both charges (1) and (3) that he made his motion. The Advocate Depute did not seek to argue
that there would not be such a risk if the premise from which Mr Moir's
submission proceeded were correct: that
the Crown simply cannot prove charge (1) on the evidence currently available
to it. Of course the prejudice as to the
Minuter's position in relation to charge (3) is, if anything, greater if
the Crown can prove charge (1) than if, on a proper understanding of the
available evidence, it cannot. If there
is a sufficiency of evidence on both charges then both will go to the jury and
everything adverse to the Minuter which has been led in support of
charge (1) will be available to the jury, albeit that they will be
directed to consider each charge separately.
However, that is a prejudice that Mr Moir would feel constrained to
accept as a consequence of the usual practice, referred to by Lord Emslie,
of trying all outstanding charges against an accused on a single
indictment. What he complains about is
unfairness or oppression: the Crown
libelling a charge which it knows it cannot prove simply in order to prejudice
the minds of the jury against the Minuter in respect of the other charge. This would seem to be an entirely legitimate
position for Mr Moir to adopt.
There will be cases where the Crown must be allowed to libel what are
sometimes referred to as "evidential" charges, that is charges which probably
will not be proved but which are required to give notice that evidence may be
led pointing to an incidental offence because without them it would be open to
an accused to object to the leading of evidence which is part of the narrative
associated with the important charge or charges on the indictment. However that consideration has no application
to the case where the Crown libel two or more unconnected charges, one of which
has no prospect whatsoever of being proved, for example by reason of absence of
corroboration. Where the purpose of
libelling such a charge can only be to prejudice the jury against the accused
then it would seem to be clearly oppressive for the Crown so to act and that is
something which can be controlled by the court by ordering a separation of
charges.
[26] The question therefore is whether, on the most favourable view
of the evidence which it is agreed is currently available to it, can the Crown
prove charge (1).Richard Manser can give an account fully implicating
the Minuter in everything libelled in the charge. The question therefore comes to be whether,
as the Advocate Depute submitted, there was corroboration of that account,
either in the circumstance of the Minuter being found by police, together with
the second accused in the house of the third accused or by virtue of the
doctrine associated with HMA v Moorov.
[27] In my opinion, taking the evidence available to the Crown at
its very highest and looking to such inferences as might be drawn from it,
which is the approach that Mr Moir accepted that I should taken, there is
corroboration of Richard Manser's account of the participation of the
Minuter in the offence libelled as charge (1) That is so because I
consider that a jury might find in the circumstances of charges (1)
and (3) sufficient interrelation of character, circumstances and time to
allow them to apply what is usually referred to as the Moorov doctrine but also because I consider that there is just
sufficient circumstantial evidence to allow charge (1) to be corroborated
if looked at in isolation. Of course it
is not necessarily a case of either or. If
I am correct in my conclusion as to the applicability of the Moorov doctrine and if I am correct in
finding materially incriminative evidence in the circumstances of the Minuter
being in the third accused's house some ten and a half hours after the assault
on Richard Manser then the jury would be entitled to look at all of that
with a view to determining whether charge (1) has been established to
their satisfaction on the basis of corroborated evidence.
[28] Turning first to why I consider that charge (1) can be
corroborated without reference to the evidence relevant to charge (3), I would
observe that there is no question but that there is evidence to corroborate the
complainer's account of being tied up and assaulted and of his bank card being
used around midnight on 6 to 7 December 2006. He reported the event to the police immediately
and when police attended he was found to have cable ties on his wrists and tape
around his neck. He was injured in a
manner that was consistent with him having been struck with a knife. There is evidence of withdrawals being made
from his bank account. The offence being
capable of corroboration, the Crown must also corroborate who was or were
responsible. The complainer states that
there were three assailants, two of whom he can identify: the Minuter and the third accused. He is able to ascribe a name to the third
assailant: "M.". The finding of a white coat in the third
accused's house and the appearance on CCTV of a person matching the general
description of J. McK., wearing a white coat, on Neilston Road at around
the time of the final ATM withdrawal provide corroboration for the third
accused's involvement at least to the extent of use of the bank card. In addition there is the finding of black
tracksuit trousers in the third accused's house with DNA traces originating
from the third accused (and the second accused) and blood stains originating
from the complainer, which had a cigarette packet containing г565 in the left
hand pocket. The second accused's first
name, "M.", his admission that he was the third accused's boyfriend and the DNA
trace on the black tracksuit trousers are potentially incriminating of
him. Thus, a number of the details of
the complainer's account are capable of being confirmed from independent
sources of evidence. Accordingly,
assuming that the jury found the complainer to be credible and reliable in his
account, they could find an independent check for many of elements in that
account. The critical elements for
present purposes are the features that there were three assailants and that the
third assailant was the Minuter. The
only check for these elements is the finding of the Minuter in the third
accused's house in the company of the second and third accused and no other
person. In my opinion that is a piece of
incriminating circumstantial evidence that is available to corroborate the
complainer's account of the involvement of the Minuter in the assault and
robbery. I would see that as being
beyond argument if the Minuter had been seen obviously in the company of the
other two accused very shortly after the complainer reported them as leaving
his house. Mr Moir emphasised that
that was not the position here. Fully
ten hours had passed after the complainer reported them as having left and
before the police found the three together.
I accept that that is a significant period of time, although in
assessing that I consider that a jury might infer that the three had gone to
the third accused's house to sleep the night.
The passage of time undoubtedly weakens the force of the circumstance of
the Minuter being found with the two others who can be taken for the purposes
of the present argument to be two of the complainer's assailants but the time
period and the surrounding circumstances, which include the finding of money in
the house and the fact that only these three and no others were there together,
are such that, in my opinion a jury could find the necessary corroboration.
[29] I also consider that the doctrine of mutual corroboration is
available to the Crown. The Advocate
Depute pointed to the similarities between the circumstances of charge (1)
and those of charge (3): the events
were close in time and place, as was conceded; both involved complainers who
knew the Minuter; both had the feature of a preliminary contact as between one
of the assailants and the complainer; both involved the sudden breaking in of a
door and a forcible entry into the house; and both involved a violent attack on
an unarmed complainer by two men with knives, one of whom was positively
identified as the Minuter. Mr Moir,
for his part, emphasised the differences:
charge (1) was a robbery; it involved what he described as the
deliberate torture of the complainer; and it seemed to have as part of its
motive revenge or retribution. These
were not features of charge (3).
Parties were agreed about the
applicable law and the principal authorities:
Moorov v HMA supra, Ogg v HMA 1938 JC 152, Dodds v HMA 2002 SLT 1058. In Moorov v HMA supra at 73 the Lord Justice General said this:
"Before the
evidence of single credible witnesses to separate acts can provide material for
mutual corroboration, the connexion between the separate acts (indicated by
their external relation in time, character or circumstance) must be such as to
exhibit them as subordinates in some particular and ascertained unity of intent,
project, campaign or adventure which lies beyond or behind - but is related to
- the separate acts."
In Ogg v HMA supra at 157 and 158 the Lord Justice-Clerk said
this:
"Moorov
is a decision of the highest authority by a Court of seven judges which
authoritatively laid down the general proposition in relation to sexual crimes,
although not entirely limited to such crimes, that similar sexual crimes each deponed to by a single
credible witness may afford mutual corroboration, provided that they are so
inter-related by character, circumstances and time - the presence of all
these features is not essential - as to justify an inference that they are
instances of a course of criminal conduct systematically pursued by the accused
person. ... Where the inter-relation is sought between
similar offences as in this case, it must be possible to say that there is not
only a series of separate similar offences, but that there is a reasonable and
practical certainty, based not on conjecture or suspicion, nor a mere moral
certainty, that the similar offences are instances of one course of conduct
persistently pursued by the accused person.
... the doctrine of Moorov is a
valuable doctrine, but it must be applied with great caution. If it is not applied with caution there is a
danger that evidence showing a general disposition commit some kind of offence
might be treated as corroboration. That
must always be guarded against, and the doctrine ought not to be applied unless
inter-relation of the similar offences in some substantial sense can be with
certainty affirmed."
The difficulty of course lies in applying the agreed principle to the
marginal case which I would regard the present as an example. There are similarities as between
charges (1) and (3) but, as Mr Moir emphasised, there are
dissimilarities and similarity, of course, is not enough. The similar features must be such as to point
to an inter-relationship which allows the inference that they are instances of
one course of conduct. In the present
case, taking matters at their best for the Crown, I consider that that
inference can be drawn.
[30] I would accordingly refuse the motion to
separate charges.
