Description
Criminal Note of Appeal Against Conviction:- The appellant was indicted on a charge of assault against AH (charge 1) and on two charges of lewd, indecent and libidinous practices and behaviour against AH (charge 2) and JH (charge 3). The appellant was convicted of all three charges following trial. Evidence was led by the Crown from AH and JH. Following the completion of the Crown's case, a submission of no case to answer was made, but repelled. Thereafter the appellant himself gave evidence, as did several witnesses led on his behalf. There were four grounds of appeal:- "(1) There was insufficient evidence in relation to charge 1. There was no corroboration of the complainer's evidence on this charge, and in particular no corroborated evidence to establish the necessary mens rea for the crime of assault. The sheriff erred in rejecting a submission of no case to answer; (2) The sheriff misdirected the jury in relation to charge 1. She erred in directing the jury that they could use the evidence of the complainer in charge 3 (a charge of lewd and libidinous practices) to corroborate the evidence of the complainer in charge 1 (a charge of assault); (3) There was insufficient evidence to entitle the jury to convict the appellant of charges 2 and 3. The sheriff erred in rejecting a submission of no case to answer. The conduct spoken to in relation to each of these charges was significantly different, the sex of the complainer in each was different, and in the whole circumstances the sheriff erred in holding that there was sufficient similarity to allow the jury to apply the Moorov doctrine; and (4) Esto there was sufficient evidence to justify a conviction on charges 2 and 3, there was insufficient evidence to justify conviction on these charges as libelled. In particular there was no evidence of attempted anal penetration in relation to charge 2, and no evidence of simulated sexual intercourse in relation to charge 3." It was submitted on behalf of the appellant that the Moorov doctrine could not be applied as between charge (3) and either of the other two charges and between the charges (1) and (3) and charges (2) and (3) there was insufficient similarity to justify the application of the Moorov doctrine. Here the court considered whether the Moorov doctrine could properly be applied between each of charges (1) and (2), spoken to in evidence by the first complainer and charge (3), spoken to by the second complainer and whether there was a sufficiently close link in time, character and circumstances as to demonstrate that each offence could be seen as an individual element in a single course of criminal conduct.
0141 553 4890
