Man who raped and sexually assaulted partner’s sisters loses appeal in ‘mutual corroboration’ case

Lady Paton

A man who was sentenced to 10 years’ imprisonment after being found guilty of raping a girl and using lewd, indecent and libidinous practices towards the complainer’s older sister has had an appeal against his conviction and sentence refused.

The Appeal Court of the High Court of Justiciary rejected the appellant’s argument that the evidence relating to the rape charges could not provide “mutual corroboration” for the evidence relating to the lewd and libidinous behaviour offences.

Lady Paton , Lord Drummond Young and Lord Turnbull heard that the appellant “JGC”, 43, was found guilty following a trial at the High Court in Glasgow in January 2017 of six charges relating to offences committed when he was aged between 22 and 26.

The case involved three sisters, whose parents separated in 1995. A year later the oldest of the three, “B”, became engaged to the appellant, which gave him access as a trusted family member to B’s two younger sisters “L” and “R”.

‘Insufficient evidence’

The appellant was convicted of two charges of rape and three of lewd and libidinous practices towards R when she was aged between 7 and 12, and two charges of lewd and libidinous practices towards L when she was aged between 10 and 15, but he appealed against his conviction and his 10-year sentence.

Counsel for the appellant, Geoffrey Forbes, contended that there was “insufficient evidence” in relation to the rape of R and that the trial judge had erred in refusing a defence submission of “no case to answer” in terms of section 97 of the Criminal Procedure (Scotland) Act 1995.

It was argued that the evidence given by L in relation to the charges of lewd and libidinous practices could not be used by the jury as a basis for the application of the “Moorov doctrine” of mutual corroboration as set out in the case of Moorov v HM Advocate 1930 JC 68, but the appeal judges said they could not accept that submission.

Refusing the appeal, the court reiterated that, for the Moorov doctrine to apply, the nomen juris of each criminal act is “immaterial:, and the question is whether there is an “underlying unity of conduct” (McMahon v HM Advocate 1996 SLT 1139; B v HM Advocate 2009 SLT 151).

‘Course of conduct systematically pursued’

In the context of sexual offences the law concerning the application of the Moorov doctrine has continued to develop over the years, keeping pace with changing societal attitudes (MR v HM Advocate 2013 JC 212).

There is no rule of law whereby what might be perceived as less serious criminal conduct (for example, a non-penetrative sexual offence) cannot provide corroboration of what is libelled as a more serious sexual crime (for example, penetration) (HMcA v HM Advocate 2015 JC 27).

The fundamental issue is whether the evidence is capable of indicating a “course of conduct systematically pursued” by an accused (B(R) v HM Advocate 2017 SLT 714), and the course of conduct must be viewed as a whole rather than in individual compartments (JC v HM Advocate HCJAC 55).

The outcomes of cases concerning individual complainers responding to the behaviour of an accused might be different, but a jury would be entitled to conclude that any difference was attributable to the individual reaction of each complainer (JC v HM Advocate HCJAC 55).

‘Escalation of grooming’

Delivering the opinion of the court, Lady Paton said: “The appellant was a member of the family circle and in a position of trust. By a gradual process including game-playing, magazines, computers, photographing, filming, and close physical contact, he groomed R from the age of 7 to accept and participate in what became sexual behaviour, for his own sexual gratification.

“Latterly R was raped on over ten occasions. In relation to the older complainer, L, there were several incidents…which the jury could assess and consider.

“In our opinion, in the light of the Moorov doctrine as discussed and developed in authorities such as McMahon, HMcA, B(R), BM, and JC, the jury would be entitled, on the evidence before them, to identify similarities in time, place and circumstances in the behaviour described by R and the behaviour described by L, such as to demonstrate a course of conduct systematically being pursued by the appellant. The jury would be entitled to conclude that the appellant’s behaviour with L represented the early stages of the progressive escalation of grooming carried out with R…

“The jury would be entitled to take the view that the different outcome in L’s case was attributable to her greater maturity and awareness of the sexual connotations of the behaviour, and her greater ability to rebuff it. In the result, therefore, we do not accept that the trial judge erred in refusing the ‘no case to answer’ submission. In our opinion, there was a sufficiency of evidence.”

Further, it was submitted on behalf of the appellant that the sentence imposed was “excessive”, but the court observed that the sentencing judge had taken the appellant’s previous convictions into account, as well as his personal circumstances and all the mitigatory factors.

Lady Paton added: “These were very grave offences, where the appellant surreptitiously preyed upon two young girls in the context of a family home, and subjected them to sexual behaviour for his own sexual gratification. He acted in breach of his position of trust, and in breach of any normal standards of behaviour in a civilized society.”