J.G.C. v. Her Majesty’s Advocate [2017] HCJAC 83

Note of appeal against conviction and sentence:- On 19 January 2017, at Glasgow High Court, the appellant was found guilty after trial on indictment of six historic charges of indecency perpetrated against two young girls R and L whist the appellant was aged 22-26 years of age. The appellant was sentenced to a cumulo sentence of 10 years imprisonment in relation charges 1, 3, 4 and 5 and in relation to charges 2 and 6 he was sentenced to 2 years imprisonment to run concurrently with the 10 year sentence. The appellant appealed against conviction and sentence. The ground of appeal against conviction was that there was insufficient evidence in relation to charges 3 and 4, the charges relating to the rape of R, and that the trial judge erred in refusing a ‘no case to answer’ submission made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 at the close of the Crown case. In particular, it was contended that the evidence given by L in relation to charges 5 and 6, namely, lewd and libidinous practice and behaviour, could not be used by the jury in the application of the doctrine of mutual corroboration in relation to charges 3 and 4. It was submitted on behalf of the appellant that whilst there were the necessary similarities present in relation to time and place, there were insufficient similarities in relation to the character of the offences in that R’s evidence relating to charges 3 and 4 could not be corroborated on by L’s evidence relating to charges 5 and 6. It was further submitted that there was no evidence from L about any form of penetration, nor was there any attempted penetration, nor evidence upon which the intention to penetrate could be inferred. As such, the contention advanced on behalf of the appellant was that the trial judge had erred when the jury were directed that evidence about the non-penetrative sexual conduct was capable of providing the necessary underlying similarity of conduct for charges 3 and 4, the rape charges. The court, having considered the particular circumstances of the case and, having reviewed the recent authorities in relation to the application of the Moorov doctrine, refused the appeal against conviction. The court made a number of points in relation to the doctrine:- (1) the nomen juris of each criminal act is immaterial and the issue is, rather, whether there is an underlying unity of conduct; (2) the law in relation to the doctrine of mutual corroboration has developed over the years as social attitudes have; (3) there is no rule which prevents less serious criminal conduct, for example, where there is no penetration, corroborating more serious criminal conduct, for example, where penetration does take place; (4) the key issue is whether the evidence is capable of indicating a course of conduct systematically pursued by an accused; (5) any examination of a course of conduct should view the conduct as a whole rather than in individual compartments; and (6) outcomes for each complainer in a case reacting to the conduct of an accused might be different and may simply reflect the age or understanding of each complainer. Having considered the evidence in the present case the court considered that there were such similarities in time, place and circumstances in the behaviour of the appellant described by R and L that demonstrated a course of conduct systematically being pursued by the appellant and entitled the jury to apply the doctrine of mutual corroboration. In relation to the appeal against sentence it was submitted on behalf of the appellant that the sentence was excessive having regard to the particular circumstances of the appellant. The court refused the appeal against sentence. The court pointed to a number of factors including the nature and gravity of the charges, the significant breach of trust and the fact that the appellant had a number of previous convictions which, when taken together, entitled the sentencing judge to select a sentence towards the upper end of the range of reasonable sentences.