ROBIN MORTON v. PROCURATOR FISCAL, OBAN

[2] The sheriff explains the similarities in the appellant's behaviour at pages 23-24 of the stated case as follows:

A clearer example of evidence appropriate for the Moorov doctrine would be difficult to find.

[3] Moving on to mens rea: the sheriff's stated case describes behaviour which has all the hallmarks of planned, pre-meditated and calculated behaviour designed to give the appellant access to, and to touch and fondle in a sexual way, young females. The subterfuge used was an offer to an inexperienced young woman of an apparently professional massage but with the added element of the incentive about getting a job: cf the circumstances in Bain v HMA 22 November 2011.

[4] In our view, the necessary mens rea is clearly inferred from the fact that the appellant managed to achieve the removal of clothes, the touching of parts of the body not normally touched in a professional massage, (for example the upper inner thigh, breasts and stomach), the incentive of employment being held out, the postures which the complainers had to adopt, (one being for example on all fours) and both finding that the concealing towel, protecting their privacy, was disturbed and removed.

[5] This sort of behaviour was in sharp contrast to the evidence given by A J about what constitutes a proper professional massage. The inevitable inference from all the factors listed by the sheriff is one of deliberate sexual gratification. In our view the sheriff's stated case makes that quite clear. Accordingly in relation to question 1, we answer in the affirmative so far as charges 1 and 5 are concerned.