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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Robertson v. Her Majesty's Advocate [2005] ScotHC HCJAC_14 (27 January 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_14.html
Cite as: [2005] HCJAC 14, [2005] ScotHC HCJAC_14

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Robertson v. Her Majesty's Advocate [2005] ScotHC HCJAC_14 (27 January 2005)


APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Marnoch

Lord Hamilton

Lord Weir

 

 

 

 

XC948/03

 

 

OPINION OF THE COURT

delivered by

THE RIGHT HONOURABLE LORD MARNOCH

in

NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE

by

KEVIN ROBERTSON

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

_____________

 

 

27 January 2005

[1]      In this case the appellant was convicted of five charges of assault, each of a separate female, and all involving circumstances of indecency. The details of the libel as regards four of these charges were not dissimilar, the charges in question being in the following terms:

"(1)  on 28 October 2002 at the Careers Scotland Office, Main Street, Bellshill, Glasgow you did enter the office there without permission and assault Helen Marchbanks, c/o Strathclyde Police, Bellshill, Glasgow, switch off the lights within said office, threaten said Helen Marchbanks with violence, seize her by the shoulders, push her against a wall and restrain her, kick her legs, attempt to force her to the ground, struggle with her and seize her by the wrist, all with intent to rape her;

(2)  on 24 November 2002 at a grass area at Asquith Place, Bellshill, Glasgow you did assault Michelle Margaret Douglas, c/o Strathclyde Police, Bellshill, Glasgow and did push her against a fence, struggle with her, repeatedly place your hand over her mouth, pull her skirt up to her waist, force her to the ground and lie on top of her, all with intent to rape her;

(4)  on 16 January 2003 you did break, into the house at 2 Heather Avenue, Holytown and there assault Lisa Brown, c/o Strathclyde Police, Bellshill, Glasgow, follow her into a bedroom there, push her onto a bed, seize her arms, restrain her and sit on top of her, all with intent to rape her;

and

(5)  on 18 March 2003 at 6 Mossdale Court, Bellshill, Glasgow you did enter the house there without permission and assault Donna Marie Hendry, c/o Strathclyde Police, Bellshill, Glasgow, lie on top of her, press your private member against her body, push her against a radiator, lift her upper clothing, handle her breasts, kiss her breasts and handle her private parts, all with intent to rape her."

 [2]      Each complainer in evidence spoke, broadly, to the factual particulars libelled in the charge involving her. In returning their verdict the jury deleted, in charges (1), (4) and (5) the aggravation "all with intent to rape her". Otherwise they returned verdicts of guilty on all the charges, subject only to the further deletion in charge (5) of the words "kiss her breasts". Following on a short adjournment the Crown moved for sentence on the basis that all four aggravations should be regarded as having been deleted.

[3]      The appellant tabled three grounds of appeal, only the first two of which are now insisted in. Both of these relate to the form of the verdict returned. It is said, first, that it was insufficient for the trial judge simply to sentence on the basis of the Crown concession, and that his proper course would have been to direct the recording of a verdict under deletion of the remaining aggravation. Second, that not having been done, it is said that this court should now quash the verdict, as recorded, and substitute a verdict under deletion of that aggravation.

[4]      Before us, Mr Shead, for the appellant, submitted that in light of their verdict the jury could not have found, in respect of charge (2), corroboration of the mens rea required for the aggravation of intent to rape. In our opinion, that submission is not well founded. The aggravation in question did not involve proof of additional facts, but was rather an inference drawn from facts otherwise established. In that connection, for present purposes we are prepared to accept Mr Shead's submission that, as a matter of principle, the facts from which an inference of mens rea can be drawn must be proved by evidence from more than one source. For the Moorov doctrine to operate, however, it is clearly unnecessary for the modes of perpetration of the various crimes to be libelled (or established) in identical terms. In our opinion, therefore, the detailed facts libelled in the instant charge, charge 2, namely that the accused did

"push (the complainer) against a fence, struggle with her, repeatedly place (his) hand over her mouth, pull her skirt up to her waist, force her to the ground and lie on top of her",

were all facts which, in this case, the jury was entitled to find established by evidence from more than one source through the operation of that doctrine. Thereafter, it seems to us, the matter of mens rea, in respect of each charge, was one of inference for the jury. The Lord Justice General (Hope), summarised the position very clearly in McMahon v HMA 1996 S.L.T. 1139 at p.1142, when he said:

"It is the underlying similarity of the conduct described in the evidence, not the label which has been attached to it in the indictment, which must be examined in order to see whether the rule can be applied. The question is ultimately one of fact and degree".

In that case it was held that evidence led in support of a charge of lewd and libidinous behaviour could, in the particular circumstance, corroborate evidence led in support of a charge of assault with intent to rape. In the same way, in our opinion, it was open to the jury in the present case to use the evidence led in support of the charges in respect of which the aggravation of "intent to rape" was deleted to corroborate the evidence led in support of the remaining charge in respect of which they saw fit to leave in that aggravation. The evidence displayed a consistent pattern of conduct, albeit that in one case, but not in the others, the inference of a more serious intent was in the event drawn.

[5]      For the forgoing reasons both of the remaining grounds of appeal fall to be repelled and the appeal is refused.

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