Gap of 10 years too long for Moorov corroboration: appeal court
A man convicted of sexual ofences against different complainers within his home has had three of the convictions quashed after appeal judges ruled that there was too great a gap in time for the Moorov principle of mutual corroboration to apply.
The man, referred to as RF, was found guilty of 11 out of 13 charges but appealed in relation to three: rape of a sleeping 17 year old, JB, in 1991; simulating intercourse with his daughter, NP, on an occasion between 2001 and 2003 when she was aged between three and five; and lewd practices towards NP on an occasion between 2002 and 2004 by rubbing her naked breasts. He was acquitted of a charge of lewd practices towards his son RPF on an occasion between 2000 and 2001 when he was aged 11, by ejaculating in his mouth. The Crown approached the case on the basis that it was necessary to find corroboration for the first of these charges in one or more of the others.
At trial the judge repelled a submission of no case to answer, accepting the Crown argument that taking the evidence at its highest, there was great coincidence in the conduct alleged and notwithstanding the time gap, Moorov could apply. On appeal RF argued that he had been wrong to do so: the latter three charges could not afford evidence of a course of conduct systematically pursued and so the Moorov doctrine did not apply. Further, the lapse of time was too great and there were no compelling or extraordinary features to link the charges, nor was there an explanation for the gap in time.
The Crown submitted that only in extreme cases should the matter not be left to the jury and this was not such a case. There was no maximum time lapse beyond which Moorov could not apply. The circumstances of the behaviour alleged were compelling.
Giving the opinion of the court, Lady Smith, who sat with Lady Dorrian and Lord Bracadale, said that where there was a long lapse of time, there required to be “special” or “extraordinary” features so as to render any similarities between the charges “compelling”. "It is not enough that a general description or characterisation applicable to all the charges may be arrived at. Something more is required – something special or extraordinary that casts the similarities in such a light as to demonstrate that they can properly be regarded as evidence of the requisite underlying unity of intent."
There was no support in the authorities for the view that it was only in an extreme case that a no case to answer submission could be upheld. "There is no presumption that [Moorov] will apply unless the case is an extreme one, which is what the advocate depute seemed to suggest."
The court was not persuaded that the similarities as between the charges in question could properly be regarded as compelling."We agree that there were no special or extraordinary features", Lady Smith said. "Further, there were also dissimilarities, there was no explanation for the substantial lapse of time and, given the evidence about other children, the later events were not the first opportunities to resume the alleged course of conduct. Accordingly, we consider that the appeal is well founded. There was no proper basis on which the jury would have been entitled to infer the necessary underlying unity of intent; Moorov could not apply. The submission of no case to answer ought to have been upheld."