Moorov v HM Advocate

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Moorov v His Majesty's Advocate
CourtHigh Court of Justiciary
Decided18 July 1930
Citation(s)[1930] ScotHC HCJAC_1, 1930 JC 68, 1930 SLT 596
Court membership
Judge(s) sittingLord Justice-General (Lord Clyde), Lord Justice-Clerk (Lord Alness), Lord Ormidale, Lord Anderson, Lord Sands, Lord Blackburn, and Lord Morison
Keywords
admissibility, Similar fact evidence

Moorov v His Majesty's Advocate 1930 JC 68 is a Scots criminal and evidence law case that concerns admissibility of similar fact evidence.[1] The High Court of Justiciary established the Moorov doctrine[2] in its judgment, which is predominantly used in criminal prosecutions involving allegations of rape and sexual abuse.[1][3][4][5][6]

The doctrine states that the prosecution of two or more separate offences, each witnessed by only one person, can be grouped together to evidence the accused's pattern of behaviour to the court and the jury.[1][6]

Facts[edit]

Samuel Moorov was a draper and the proprietor of Samuel Moorov & Son on Argyle Street, Glasgow.[1] He was accused of committing seven assaults and nine indecent assaults against his female employees between 1923 and 1930.[7]

This case brought light on the original course of similar fact evidence which was generally regarded as inadmissible in court. It created a "course of conduct" which related from a connection of special circumstances, such as recurring sexual offences, similar to the case itself. The course of conduct is sufficient as it determines the use of corroboration for each victim involved.

Principles of the Moorov doctrine[edit]

  1. Series of offences connected closely in "time, character and circumstance and have underlying unity."
  2. Evidence of one witness in a series of two or more separate offences capable of providing corroboration for the evidence of a witness in another case or cases.
  3. Only evidence of the greater charge can corroborate the lesser charge, not vice versa
  4. Not restricted to sexual assaults
  5. The time factor can vary- usually not more than 3 years apart, however it may extend to this period in specific circumstances.[8]
  6. Character of the crime must be the same
  7. Sodomy and rape are not the same crimes.[9] However, as children were involved Moorov applied
  8. Incest and sodomy are not the same crimes.[10]

Application of the doctrine[edit]

  • Distress
  • Prior to Lord Advocate’s Reference (No1 of 2001) to prove rape meant proving that intercourse happened against the will of the complainer.
  • Rape occurs when a man has intercourse with a woman without her consent
  • A victim's distressed state can corroborate rape[11]
  • New case law shows that distress is not necessarily enough corroboration, it is a matter of fact meaning it is up to the jury to decide if the distress is enough.

Key cases where the Moorov doctrine was applied[edit]

Yates v HM Advocate, 1977
  • Accused of raping a 16-year-old girl
  • Only witness was a person who testified to the girl's distress shortly after the incident
  • Accused admitted intercourse, but said it was consensual
  • Found guilty
Gracey v HM Advocate, 1987
  • Gracey accused of rape
  • Gracey adamant victim was consensual
  • Convicted on basis of several witnesses testifying to her distressed state shortly after the incident
Stobo v HM Advocate, 1994
  • Indecent assault
  • Various witnesses testifying to victim’s distress
  • Found guilty even after appeal, it was circumstantial in the same way that torn clothing would be
Smith v Lees[12]
  • Overruled Stobo
  • 13-year-old complained of a sexual assault while camping
  • Distress didn’t corroborate that the act had taken place
  • They corroborated that something had happened, however it could not be proven that the girl's distress was because of what was claimed to have happened in the tent.

It is found that in incidents where intercourse is admitted and distress is proven, distress can corroborate.

McKearney v HM Advocate, 2004
  • Force is no longer part of definition of rape
  • Recent distress can’t prove the mens rea of the perpetrator
  • Distress may indicate lack of consent, but isn’t evidence that the man knew that/was reckless as to her consent
Cullington v HM Advocate, 1999
  • Sexual assault
  • Distress was enough to convict, as the jury didn’t believe Cullington’s version that it was consensual

Carloway Review[edit]

"It is acknowledged that the recommendation to remove the requirement for corroboration will attract particular comment and, no doubt, criticism. There may be further consequences of abolition that will need to be worked through, as the criminal justice system is progressively reformed. This is the nature of law in society. But the initial decision, which has to be taken, is whether, of itself, corroboration continues to contribute more than it detracts from a fair, efficient and effective system."[13]

See also[edit]

References[edit]

  1. ^ a b c d Frank Crowe (15 April 2019). "Moorov then and now". The Journal. 64 (4). Law Society of Scotland. Archived from the original on 25 October 2023.
  2. ^ "Judges and juries to hear of accused's record" (PDF). Scottish Law Commission. 23 May 2012. Archived from the original (PDF) on 7 June 2023. Retrieved 3 January 2024.
  3. ^ "Fife priest Thomas Mullen dismissed over child abuse claims". BBC News. Scotland. 15 May 2014. Archived from the original on 16 May 2014. Retrieved 3 January 2024.
  4. ^ "Child abuser Robert Fury has jail term cut from 12 to four years". BBC News. Glasgow. 20 June 2016. Archived from the original on 25 June 2016. Retrieved 3 January 2024.
  5. ^ "Rapist jailed in England acquitted of charges in Scotland". BBC News. Highlands and Islands. 24 January 2017. Archived from the original on 26 January 2017. Retrieved 3 January 2024.
  6. ^ a b "Former East Kilbride teacher wins child abuse appeal". BBC News. Glasgow. 10 May 2017. Archived from the original on 16 May 2017. Retrieved 3 January 2024.
  7. ^ Moorov v HM Advocate, 1930 JC 68 (High Court of Justiciary 18 July 1930), Text.
  8. ^ Dodds v HMA
  9. ^ P v HM Advocate, 1991
  10. ^ HM Advocate v Cox, 1962
  11. ^ Yates v HM Advocate, 1977
  12. ^ Smith v Lees, 1997 JC 73
  13. ^ (para 7.0.5)
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