The statutory alternative in charge 2

"Any person who uses towards a girl of or over the age of 12 years and under the age of 16 years any lewd, indecent or libidinous practice or behaviour which, if used towards a girl under the age of 12 years, would have constituted an offence at common law shall, whether the girl consented to such practice or behaviour or not, be liable on conviction on indictment to imprisonment ..."

The annotations in Current Law Statutes explain that:

" ... [t]he type of behaviour envisaged by this section constitutes a common law crime if committed in respect of children below the age of puberty."

A summary of the evidence

"[t]he appellant had his face close to hers. He pulled the bed clothes down to about her chest area and then placed his hand inside the witness's nightdress and down the front of her pants. He left his hand there for 'less than a couple of minutes'. J then returned to the room and the appellant removed his hand. J told him to leave the girls as they were sleeping. The appellant had felt around the witness's vaginal area and moved his hand around for a few seconds ... She thought she was about ten at the time of the incident, but she could have been nine."

"She was wearing underwear and a nightdress. She was woken by the appellant touching her under her underwear. She said that he touched her on 'the front part of my bottom'. She said that he was stroking her. The quilt on the bed had been moved and she thought that her nightdress had been moved up a bit. At the time she thought he thought she was her aunt, but she did not think that now. She moved away from him and he touched her back. For the rest of the night she pretended to be asleep."

"It was on these occasions that the abuse happened. When she stayed for this purpose she would go to sleep in their bed, and when one of them returned they would wake her up and she would move through to another bed. J and the appellant rarely went out together. The first one back would wake her up. On one occasion she heard the door. She woke to someone caressing her and running [his] hands up and down her body. She had on a nightdress and pants. She was lying under a duvet. She was in shock and didn't see who was touching her. He ran [his] hand up to her hair and back down again. He put his hand into her pants from the back and inserted his finger into her vagina. She moved to make him aware that she was awake and he removed his finger. He then lifted her through to her cousin's bed. While being carried she opened her eyes enough to realise that it was the appellant who was carrying her. The following day he acted as if nothing had happened. The second incident occurred a couple of weeks later. She again went into her aunt's bed. She did not think that the appellant would do it again. She had on a nightdress and pants. She was still awake when she heard the door. The appellant came in and put his hands on her leg. He put his hands down the back of her pants and touched her vagina. He put his finger inside her. She moved about and he removed his finger. He then removed his trousers and got into bed beside her. She then got up and went through to her cousin's room. The third incident occurred a week later. On this occasion she went straight to her cousins' bedroom and got into bed beside her cousin O who slept in a top bunk. She didn't hear the door and was woken up by someone touching her. He moved his hands up and down her body and pulled up her nightdress and inserted his finger into her vagina. She wriggled about and he stopped. The fourth incident occurred when she was again sleeping in her cousin's bed. It happened very much the same as the third occasion. When she was about sixteen or seventeen years old she was baby-sitting. She was in the living-room when the appellant came in. He asked her for a kiss and she said no. Despite that he attempted to kiss her. After that incident she did not have a lot of contact with the appellant. She sent him a text saying that if he tried it again she would tell someone. Prior to the fifth incident she had tried to put it out of her mind but that incident brought it all back. One day at her grandmother's house the appellant brushed past her. She said to P that he was a 'fucking pervert'. She discussed his behaviour but did not discuss everything that he did. It was only after M had a breakdown when drunk that her parents spoke to the witness."

The sheriff's charge

At page 5 of his Charge:

"You can accept part of a witness's evidence and reject part. If you reject a piece of evidence because a witness is either lying in your view or unreliable you put it out of your mind completely. It doesn't mean that the opposite is true. You just ignore the evidence that you reject. If somebody says it is raining outside and you don't believe them because you find that they are generally unreliable, it doesn't necessarily mean that it is dry."

Further at pages 11 to 15:

"I now want to deal with the special rule of evidence which has been described as Moorov which is know to lawyers in Scotland from a case in the fifties [sic] by that name. Sometimes crimes are committed and for various reasons there is little or no eyewitness evidence and in such cases a special rule can apply. It can apply where an accused is charged with a series of similar crimes where there is a different victim of each crime, the commission of each crime is spoken to by one credible and reliable witness and the accused is identified as the person who committed each crime. So all those factors have to be present before you can apply the rule. The rule is this: that if you are satisfied that the crimes charged are so closely linked by their character, the circumstances of their commission and time as to bind them together as a part of a single course of criminal conduct systematically pursued by the accused then the evidence of one witness about the commission of one crime is sufficiently corroborated by the evidence of one witness about the commission of each of the other crimes. To take an example of a case which is far removed from the present one, suppose someone is charged with corruption in the form of trying to fix four football matches. Four goalkeepers give evidence that within a reasonably short period of time he approached each of them when alone and said I'll give you £40,000 to lose the game. If the evidence is believed, there is mutual corroboration and the same rule could apply in this case. For it to apply, you have to believe the witnesses who speak to the individual charges. If you don't, there can be no corroboration. If you have got three, six, ten witnesses who you don't believe, that doesn't take the Crown one centimetre further forward. So if you believe the complainer on any particular charge then you would have to find corroboration from a credible witness who speaks to any of the other charges. If you do believe that witness then you have to decide if by reason of the character, circumstances and time of each charge the crimes are so closely linked that you can infer that the accused was pursuing a single course of crime and bear in mind it is important that you have to find that this is a single course of crime. It is not enough if all that is shown is that the accused had a general disposition to commit this kind of offence. If somebody has a general disposition to commit particular offences it does not mean that they commit a particular offence. So you do have to apply this rule with some caution. The Crown says that the rule can be applied in this case and they point to the similar circumstances that the three girls spoke to, that it all happened at their aunt's house involving their aunt's boyfriend and that the manner of him committing these offences, namely when they were in bed and he was placing his hand under their bedclothes, is similar circumstances. In relation to the third charge, the accused is said to have gone further and placed his finger inside the complainer's vagina. It is for you and for you alone to decide whether this was of similar character and the circumstances were similar and he was just going a bit further than he had before or whether this was a different character of offence. In the former case you can apply the rule, in the latter case you could not. The Defence don't suggest any particular reason that the charges are dissimilar and that the rule can't be applied but merely because the Defence don't say that doesn't mean that you don't have to consider this independently and consider whether the rule can be applied. What I can say, and what has been said I think by both lawyers, is that there is enough evidence in law that the crimes alleged are sufficiently close in time, character and circumstances for the rule to apply but you have to decide if the evidence led is credible and reliable, if there is the necessary link in time, character and circumstances has been established and thirdly that if so the rule should be applied. If you do apply it then you could convict the accused of each of these charges or a combination of them. You'll have to consider all the evidence that the Crown relies on and the submissions made by the Procurator Fiscal Depute and you will have to give consideration to the defence case but I can tell you that there is sufficient evidence in law to implicate the accused but legal sufficiency isn't the issue for you. You will have to assess the quality, strength and effect of the evidence and decide if the case against the accused has been proved or not. It is your decision what conclusion you reach on that evidence."

Also at pages 19 to 22:

"In respect of each of these charges, you will have to decide when the offences were committed. This is important for three reasons. Firstly, if they were not committed during the period described in the libel as now amended, in other words taking charge one as an example between 26^th June of 1992 and 28^th October 1993, you cannot convict. Secondly, in order to decide whether to apply the special rule of the evidence about a course of criminal conduct that I explained earlier you have to decide whether the charges are so connected in time that in your view they do demonstrate a course of criminal conduct. For these two you don't have to pick a precise time or precise range of times but you do have to focus on approximately when you think the offences took place. Thirdly, in respect of charge two, if you decide beyond reasonable doubt that the accused acted in the way set out in the charge you are left with three possibilities. Firstly, that you're satisfied beyond reasonable doubt that the act took place before 22^nd November, 1996, in which case you should convict of the first alternative. Secondly, if you're satisfied beyond reasonable doubt that the act took place after 22^nd November, 1996, in which case you should convict of the second alternative or thirdly, you cannot reach a conclusion on this issue. If that should be your decision, you would not be satisfied to the necessary standard in respect of either of these alternative charges and it would be your duty to acquit. That may seem to you illogical as by then you would have decided that he carried out acts which would be unlawful whether dealing with a child of 11 or a child of 12. However, it is inevitable because of the fact that these are different offences, one at common law and one under the statute. You have to be satisfied that he committed a particular crime before you could convict him of that crime. If you decide that M was telling the truth about what the accused did to her but you are unable to decide when it happened and for that reason alone you would acquit, you may however use her evidence for the purpose of corroborating the other two girls if you were satisfied about the other matters I explained earlier when dealing with what is known as the Moorov principle, namely that the course of conduct is sufficiently linked in character, circumstances and time to disclose a course of conduct. The reason for that is that Moorov is dealing with a rule of evidence rather than looking particularly at the nature of the charges and as far as evidence is concerned, M's evidence would be available to you even if you couldn't tell precisely when the incident took place, whether before or after her 12^th birthday."

Grounds of Appeal

First ground of appeal

"... the learned sheriff should have directed the jury that if they were to acquit the appellant of Charge 2 on the indictment then they could not apply the Moorov doctrine to Charges 1 and 3; that there would be an insufficiency of evidence in respect of those charges and that an acquittal would have to follow in respect of all the charges on the indictment.

It is submitted in particular that the gap in time between Charges 1 and 3 was so great as to suggest that this was two separate series of incidents rather than a course of criminal conduct systematically pursued by the appellant.

It is therefore submitted that there has been a miscarriage of justice."

Second ground of appeal

"... the sheriff misdirected the jury at page 21, line 9 to page 22, line 3 of the transcript of his charge wherein he directed the jury that the evidence of the complainer in Charge 2, M, would still be available to them to consider as corroboration under the Moorov doctrine in respect of Charges 1 and 3, even if they were to acquit the accused on Charge 2.

The sheriff directed the jury that this would be on the basis that they could acquit the accused on Charge 2 on the basis that they could decide that the accused had acted in the manner libelled, but acquit him if they could not decide beyond reasonable doubt as to the age of the complainer at the time of the commission of the offences in order to ascertain whether the offence fell within the time parameters of the first or second alternative on the charge.

It is submitted that this direction is erroneous and without foundation in law. It may have led [to] the jury considering the evidence of the complainer in Charge 2 as supportive of the evidence in Charges 1 and 3, when the jury ought properly have been directed to disregard the evidence of the complainer in charge 2 in the event that they acquitted the accused on Charge 2 for any reason, including the jury finding the complainer's evidence incredible or unreliable.

It is impossible to ascertain from the jury's verdict on what basis they acquitted the accused.

The failure to properly direct the jury in this matter was material, significant and so led to a miscarriage of justice."

Third ground of appeal

"...the sheriff erred in law in his directions to the jury at page 14 of his charge between lines 15 to 24 where he indicates that, subject only to the question of credibility and reliability, there is enough evidence in law that the crimes alleged are sufficiently close in time, character and circumstances for the rule (of Moorov) to apply.

It is submitted that this is an erroneous statement of the law which would wrongly fetter or limit the jury's discretion in dealing with this issue; reference is made to the case of Sinclair v HM Advocate 1990 S.C.C.R. 412.

In particular this may have unduly restricted the jury's discretion as to whether or not the doctrine was still to apply in the event that they brought in a verdict of acquittal in any of the charges, particularly Charge 2 having regard to the time gap that would leave between Charges 1 and 3."

At the appeal hearing Mr Taylor, solicitor-advocate for the appellant, did not insist upon the third ground of appeal as a discrete, self-standing argument, although he submitted that the sheriff's wording at page 14, lines 15 to 24, was unfortunate, and perhaps had a cumulative effect with the other grounds of appeal noted above.

The sheriff's response to the Grounds of Appeal

"During his speech Counsel for the Appellant did not address the Jury at any length on Moorov and accepted that there was a legal sufficiency. The main thrust of his speech was to the effect that nothing happened at all.

Submissions on behalf of the Crown

Reply on behalf of the appellant

Discussion

Type of conduct: There are many variations in the type of conduct amounting to lewd and libidinous practices: cf Lord Justice General Hope in McMahon v HM Advocate 1996 S.L.T. 1139, at page 1142G-J. In the present case, we are not persuaded that the conduct libelled in Charge 3 was anything other than a variation or development of the conduct libelled in Charge 1 and/or 2. It was, rightly, not suggested that the difference in legal foundations of charges at common law and under statute of itself excluded the operation of the Moorov doctrine.

Lapse of time: For present purposes, it is assumed that evidence led in support of Charge 2 is to be left out of account, leading to a lapse of time between the behaviour libelled in Charges 1 and 3 of at least 4 years 4 months. As was emphasised in Dodds v HM Advocate, cit. sup., and Stewart v HM Advocate, cit. sup., there is no specific time-period beyond which the Moorov doctrine cannot be applied. It is true that where the time-lapse is substantial, great caution must be exercised in the application of the doctrine: Ogg v HM Advocate 1938 J.C. 157. Nevertheless the similarities in character and circumstances may be so great that the evidence may, as a matter of law, properly be left to the jury for their assessment and their decision whether or not to apply the Moorov doctrine.

The use of M's evidence, despite an acquittal of Charge 2: It is well-settled that evidence led principally in relation to a charge of which the accused is ultimately acquitted may nevertheless be relevant to the jury's consideration of other charges. For example, a charge may be included for what is known as "evidential reasons". In other words, it is recognised that the accused may not ultimately be convicted of the charge (because, for example, there is no jurisdiction; or because full legal proof cannot be achieved or the prosecutor withdraws the charge for tactical purposes); yet it is necessary or helpful to lead the evidence either as background, or to give a coherent sequence of events, or for some other reason: cf Dumoulin v HM Advocate, cit. sup.; HM Advocate v Joseph, cit. sup. That latter category may, in certain circumstances, extend to providing corroborative evidence for another charge or charges. In the present case, had there been a charge of lewd and libidinous conduct on the part of the appellant against M said to have occurred during a holiday with her aunt J in England, the appellant could not have been convicted of that charge even if there had been no doubt about the precise date of the incident, because the Scottish criminal courts have no jurisdiction over events in England. Nevertheless evidence from M about the type of behaviour indulged in by the appellant towards her while she was visiting her aunt J and sleeping overnight in her aunt's premises would, in our view, be competent and admissible for the jury's consideration. The jury would be entitled to consider that evidence and to assess whether it demonstrated similarities in time, character and circumstances to the other evidence led in respect of Charges 1 and 3, and if so, to apply the Moorov doctrine to both that and the other evidence. Thus M's evidence, if believed, would in our view properly be available to the jury in considering the chronology, character and circumstances of the conduct described by the complainers, namely his fascination with and handling of the naked private parts of his partner's young female relatives when they visited their aunt (his partner), stayed overnight, and were asleep in bed in their night-clothes in his partner's home. In the same way, M's evidence in respect of Charge 2 in the present case was available for the jury's consideration, even although the appellant was not ultimately convicted of that charge. It was, if believed, direct evidence going to proof of conduct underlying and connecting the several charges.

The jury's verdict in the present case: On behalf of the appellant, it was submitted that as the jury's reasoning could not be known, there was at least a possibility that they had disbelieved M and yet had used M's evidence as corroborative of the evidence of P and E.

"If you decide that M was telling the truth about what the accused did to her but you are unable to decide when it happened and for that reason alone [italics added] you would acquit, you may however use her evidence for the purpose of corroborating the other two girls if you were satisfied about the other matters I explained earlier when dealing with what is known as the Moorov principle, namely that the course of conduct is sufficiently linked in character, circumstances and time to disclose a course of conduct. The reason for that is that Moorov is dealing with a rule of evidence rather than looking particularly at the nature of the charges and as far as evidence is concerned, M's evidence would be available to you even if you couldn't tell precisely when the incident took place, whether before or after her 12^th birthday."

The jury, in obedience to the sheriff's direction, would not have to put M's evidence completely out of their minds. They would be entitled to rely upon her evidence, and to use it as corroborative of the evidence of P and E, with the evidence of all three complainers being assessed by the jury in relation to time, character and circumstances, leading to their conclusion that there was a course of criminal conduct and a unity of purpose proved beyond reasonable doubt by corroborated evidence. In such circumstances, in obedience to the sheriff's directions, they would acquit the appellant of Charge 2 (as they were not satisfied beyond reasonable doubt as to M's age at the relevant time) and would convict the appellant of Charges 1 and 3.

Conclusion: In the result, we consider that the jury received proper and accurate directions, and that they reached a verdict entirely consistent with those directions. It is not necessary for this court to know precisely which route the jury adopted in reaching their verdict, as neither route can be criticised.

Decision