Appeal Against Conviction By Cw Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Bracadale,Lady Dorrian |
| Neutral Citation | [2016] HCJAC 44 |
| Court | High Court of Justiciary |
| Date | 06 May 2016 |
| Docket Number | HCA/2015 |
| Published date | 09 May 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 44
HCA/2015/002281/XC
Lady Dorrian
Lord Bracadale
Lord Malcolm
OPINION OF LADY DORRIAN
in
APPEAL AGAINST CONVICTION
by
C W
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Ogg, sol adv; McCusker McElroy & Gallanagh, Paisley
Respondent: Erroch, AD; Crown Agent
6 May 2016
[1] The appellant was convicted after trial of the following charges:
“(001) on various occasions between 3 August 2006 and 30 November 2010, both dates inclusive at [an address in Paisley] and elsewhere you CW did indecently assault [JW] c/o Police Service of Scotland, Paisley and did while he lay asleep and intoxicated place your hand under his bed clothes, touch his leg, remove his underwear, masturbate him and place his penis within your mouth and perform oral sex on him
(002) on various occasions between l December 2010 and 30 April 2012, both dates inclusive at [an address in Paisley] and elsewhere you CW did sexually assault [J.W.] c/o Police Service of Scotland, Paisley in that you while he lay asleep and intoxicated place your hand under his bed clothes, touch his leg, remove his underwear, masturbate him and place his penis within your mouth and perform oral sex on him;
CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009”.
[2] His plea of guilty to another charge was eventually accepted after the evidence in relation to it had been led. That charge alleged that:
“(005) on various occasions between 1 June 2013 and 10 May 2014, both dates inclusive at an address in Paisley and elsewhere you CW, being a person who had attained the age of 18 years and who was in a position of trust towards [D.A] born 3 November 1998, c/o Police Service of Scotland, Paisley, whilst said [D.A] was a pupil at [schools in Paisley] and you did look after said [D.A.] at said schools, and you did engage in a sexual activity with or directed towards said [D.A], a person who was under 18 years in that you did meet him outwith the school, take him for drives in your motor vehicle, tell him about your own sexual activities, supply him with alcohol and while intoxicated handle his penis over his clothing, handle his naked penis, masturbate him, place his penis in your mouth, masturbate in his presence, incite him to masturbate in your presence until ejaculation and cause him to ejaculate in your mouth;
CONTRARY to Section 42 of the Sexual Offences (Scotland) Act 2009”.
[3] The first two grounds of appeal raise the question whether the evidence in respect of charge 5 was capable of corroborating the evidence of the complainer on charges 1 and 2, that he did not consent to the conduct alleged. Ground 3 raises a similar point in relation to proof of a lack of reasonable belief in consent in relation to charge 2. The final ground is that the sheriff erred in failing to direct the jury whether there was corroboration of a lack of reasonable belief in relation to charge 2, and where that might be found.
[4] The statutory provisions, so far as relevant, are as follows:
Section 3:
“(1) If a person (‘A’)—
(a) without another person (‘B’) consenting, and
(b) without any reasonable belief that B consents,
does any of the things mentioned in subsection (2), then A commits an offence, to be known as the offence of sexual assault.
(2) Those things are, that A—
(a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,
(b) intentionally or recklessly touches B sexually,
(c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,
(d) intentionally or recklessly ejaculates semen onto B,
(e) intentionally or recklessly emits urine or saliva onto B sexually.”
Section 14:
“(1) This section applies in relation to sections 1 to 9.
(2) A person is incapable, while asleep or unconscious, of consenting to any conduct.
Section 42:
“If a person (‘A’) who has attained the age of 18 years—
(a) intentionally engages in a sexual activity with or directed towards another person (‘B’) who is under 18, and
(b) is in a position of trust in relation to B,
then A commits an offence, to be known as the offence of sexual abuse of trust.
Section 45:
“(1) It is a defence to a charge in proceedings under section 42 that A reasonably believed—
(a) that B had attained the age of 18, or
(b) that B was not a person in relation to whom A was in a position of trust.
(2) It is a defence to a charge in proceedings under section 42—
(a) that B was A's spouse or civil partner, or
(b) that immediately before the position of trust came into being, a sexual relationship existed between A and B.
(3) Subsection (2) does not apply if A was in a position of trust in relation to B by virtue of section 43(6)”.
Evidence
[5] The complainer in charges 1 and 2 had been in care and was introduced to the appellant through the social work department when he was 16 or 17. The appellant was introduced to him as a “befriender”. The evidence of the complainer on charges 1 and 2 on the question of consent was that when he was sober he had on a number of occasions consented to conduct of this kind between himself and the accused. However, he gave evidence that the incidents referred to in the charges had occurred when he was asleep or drunk and that on these occasions he had not consented. On such occasions he told the appellant to “fuck off”, at which point the appellant would stop what he was doing. The complainer had already laid down ground rules with the appellant that no sexual conduct was to take place when he was intoxicated. He had told the appellant not to do these things to him and to stop touching him or sucking his penis when he was not consenting. He continued to see the appellant socially up to and including 2014 and there had been consensual sexual conduct between them in 2014. On occasions the appellant paid him £20, which was an agreed “fee” between them. In cross examination he denied that all sexual contact between them had been consensual.
[6] The age of the complainer on charge 5 during the period of the libel went from just short of his 15th birthday to 15½. The appellant was his teacher, responsible for extra teaching of him, and in a position of trust. He then gave evidence of the incidents referred to in the charge. He accepted a suggestion from the crown that the appellant had built up a relationship of trust with him before the sexual activity took place. The activity had been entirely started by the appellant. After this evidence the appellant pled guilty to charge 5.
[7] The appellant gave evidence that he had applied to the social work department to become a befriender to young people, and thus began his involvement with the first complainer. He had volunteered his services and had made an application on-line with the social work department in order to become a befriender. Befrienders were people who became involved with vulnerable children. They were trained not to have personal relationships with their clients. The complainer was vulnerable when they first met. He was about 15½ and living in a children’s home. In the appellant’s view, the complainer stopped being vulnerable when he became an adult at 18.
[8] The complainer had been 18 when he first came to the appellant’s flat, and 19 when the first sexual contact took place. Sexual conduct took place on numerous occasions but always with consent, and never when the complainer was drunk or asleep. The complainer had initiated the contact because he wanted money. The appellant had never forced his attentions on the complainer. The complainer had wanted to move on from being befriended to being a friend. The appellant knew from his training that he should not allow this to happen. In relation to the second complainer he admitted taking him for drives and supplying him with alcohol. There had been a combination of that behaviour and then sexual behaviour in May 2014. He understood the concept of grooming but had not been culpable of such an activity. He did accept that he had been guilty of a breach of trust in respect of the second complainer.
The submission to the sheriff
[9] In the Crown speech the procurator fiscal depute relied for corroboration on the application of the Moorov doctrine, citing a similarity of time, place and circumstance as indicating a course of conduct on the part of the accused. Thus corroboration of the first complainer’s evidence came from the evidence of the second complainer, which evidence was unequivocal since the appellant had accepted his guilt on that charge.
[10] After the Crown speech the appellant’s solicitor made a submission in terms of section 97A of the 1995 Act that the evidence of the complainer on charge 5 was not capable of corroborating the evidence of the complainer on charges 1 and 2. The similarity of circumstances was not disputed, but the complainer on charge 5 had been silent on whether he had been a willing participant or had consented. Consent was not an issue for proof of charge 5, but was an essential element of charge 2 which required to be corroborated. Further, the circumstances in relation to charges 1 and 2 were such that the appellant would at least have had a reasonable belief that the complainer was consenting.
[11] The Crown response was that the evidence of lack of consent in charges 1 and 2 was clear. Reference was made to section 14 of the 2009 Act as to when a person is deemed to be incapable of providing consent, including when asleep or intoxicated. The evidence on charges 1 and 2 was corroborated by the evidence of similar sexual conduct in respect of a person who was not capable of providing consent because of his age. The statutory provision meant that the complainer on charge 5 was not capable of giving...
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