Appeal Against Conviction By Connor Tait
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Turnbull,Lord Brodie |
| Neutral Citation | [2015] HCJAC 58 |
| Court | High Court of Justiciary |
| Date | 16 July 2015 |
| Published date | 16 July 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 58
HCA2015-004202XC
Lord Brodie
Lord Bracadale
Lord Turnbull
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL AGAINST CONVICTION
by
CONNOR TAIT
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: C Fyffe, Solicitor Advocate; Paterson Bell Ltd (for Bruce Short, Solicitors, Dundee)
Respondent: Harper, AD; Crown Agent
16 July 2015
Introduction
[1] On 11 November 2013, at Dundee Sheriff Court, after a trial lasting four days, the appellant was found guilty by the unanimous verdict of the jury in respect of the only charge on the indictment which was in the following terms:
“(001) on 4th July 2013 at the grass area between [specified streets] in Dundee you CONNOR TAIT did sexually assault [the complainer] care of Police Service Scotland, Dundee, a child who had not attained the age of 13 years in that you did take hold of his body by placing both your arms around his chest, pull him towards you, place your hand under his clothing and into his pants, pull him towards the ground, all to his injury and you did intentionally or recklessly sexually touch him in that you did sexually penetrate his anus with your fingers CONTRARY to Section 20 of the Sexual Offences (Scotland) Act 2009; you CONNOR TAIT did commit this offence while on bail, having been granted bail on 10th May 2013 at Dundee Sheriff Court.”
[2] The charge of which the appellant was found guilty had been amended. It had originally alleged contravention of both section 19 and section 20 of the 2009 Act. However, although no submission of no case to answer was made at the close of the Crown case, after the appellant had given evidence, a submission was made on his behalf in terms of section 97A of the Criminal Procedure (Scotland) Act, and at common law, to the effect that there had been no corroboration of two of the essential elements in the charge namely the putting of a hand under the complainer’s clothing and the penetration of his anus with the appellant’s fingers. The sheriff upheld the section 97A submission to the extent of holding there had been insufficient evidence in law to justify the appellant being convicted of a contravention of section 19 of the 2009 Act. The sheriff accordingly allowed the prosecutor to amend the indictment by deleting the reference to section 19 and by inserting the words “intentionally or recklessly sexually touch him, in that” after the word “and” at line 7 of the charge.
[3] The appellant now appeals against conviction. Leave has been granted in relation to three grounds (numbered 1(a), 1(b) and 3), but only two of these are insisted upon, grounds 1(a) and 1(b). They are in these terms:
“1(a) There was insufficient evidence of a sexual assault on a young child contrary to section 20 of the 2009 Act;
1(b) Esto there was a sufficiency of evidence, there was no corroboration of penetration of the anus of the complainer and this part of the libel ought to have been deleted.”
The legislation
[4] Sections 19 and 20 of the Sexual Offences (Scotland) Act 2009 provide as follows:
“19 Sexual assault on a young child by penetration
(1) If a person (“A”), with any part of A’s body or anything else, penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus of a child (“B”) who has not attained the age of 13 years, then A commits an offence, to be known as the offence of sexual assault on a young child by penetration.
(2) Without prejudice to the generality of subsection (1), the reference in that subsection to penetration with any part of A’s body is to be construed as including a reference to penetration with A’s penis.
20 Sexual assault on a young child
(1) If a person (“A) does any of the things mentioned in subsection (2) (“B” being in each case a child who has not attained the age of 13 years), then A commits an offence, to be known as the offence of sexual assault on a young child.
(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.
(3) Without prejudice to the generality of paragraph (a) of subsection (2) the reference in the paragraph to penetration by any means is to be construed as including a reference to penetration with A’s penis.”
Evidence led on behalf of the Crown
[5] The evidence pertinent to the present appeal was given by two eye-witnesses, the complainer, and his friend, X. The appellant was 20 years of age at the time of the offence and the complainer and X were 11 and 13 years of age respectively. The complainer’s parents gave evidence that the complainer was distressed shortly after the incident.
The complainer
[6] On 4 July 2013 the complainer had been at football training with X. They made their way to their respective homes by taking a path between two sets of houses, the route of which was primarily between the back of each set of houses. They crossed over an open grassy area before beginning to approach a lane at the back of a local primary school. The complainer stated that he first noticed the appellant earlier at a fish and chip shop and described the appellant following him and his friend some distance, about 20 to 25 feet, behind them. The complainer described the appellant as very strange looking – he had coloured hair, earrings and wore eye-liner. The complainer stated that the appellant had walked past him and X as they crossed the grass. The appellant had emerged from bushes, approached the complainer and X and engaged them in conversation. The appellant then grabbed the complainer from behind and pulled the complainer towards himself, put his hands in the complainer’s tracksuit bottoms and inserted two fingers into the complainer’s anus. X had ran off and the complainer managed to punch the appellant in the face, broke free and ran off himself. X did not stop running until the complainer caught up with him.
X
[7] X’s evidence was consistent with the complainer’s up to the point where X started running. X stated that he heard the complainer shouting “help”, and he intended to run to the complainer’s house to get help. About halfway towards the complainer’s house, the complainer caught up with X. X described the complainer as being held by the appellant from behind with one arm across his chest and the other across his stomach pulling the complainer to his knees. He then stated that “except that that bit was kind of pointing out”, and then he physically demonstrated what came to be described as a “pelvic thrust” in which the appellant’s groin made contact with the complainer’s backside. X did not see any penetrative act.
The sheriff’s reasoning in respect of the section 97A submission
[8] Albeit he had changed his mind by the time he prepared his report to this court, at the time he determined the section 97A submission, the sheriff accepted that there was no corroboration of the complainer’s account of having been digitally penetrated. There was therefore an insufficiency of evidence for a conviction in respect of contravention of section 19 of the Act. On deletion of the reference to section 19, what was charged was the offence of sexual assault on a young child in contravention of section 20 of the Act. The sheriff reasoned that that offence may be committed by the intentional or reckless sexual touching of a child who has not reached the age of 13 years. The complainer in the present case had spoken to sexual touching by penetration and the witness X had spoken to sexual touching by the appellant thrusting his pelvis against the complainer’s backside. Either of the acts spoken of would constitute sexual touching and accordingly, in the opinion of the sheriff, on the basis of the evidence of the two boys there was a sufficiency of evidence for a conviction of contravention of section 20 on a libel which included the allegation of placing a hand under the complainer’s clothing and digitally penetrating his anus.
[9] Consistent with this analysis, when he came to direct the jury, the sheriff indicated that it could find corroboration of the complainer’s account in what had been spoken to by X (charge pages 24 to 26).
Submissions
Appellant
[10] Mr Fyffe, on behalf of the appellant, adopted his written case and argument. In summary his submission was that the terms of section 20 of the 2009 Act required that for an accused to be convicted of the offence of sexual assault on a young child, the Crown must prove that (i) the complainer was aged under 13, (ii) one or other of the things specified in paragraphs (a) to (e) of section 20(2) was done and (iii) the accused was the perpetrator. Each of these three elements had to be established by corroborated evidence. Thus, in the present case, the Crown required to prove by corroborated evidence that (1) the appellant had digitally penetrated the complainer’s anus or (2) he had intentionally or recklessly touched the complainer sexually. There was, however, no corroboration of the complainer’s evidence that the appellant had placed his hand under his clothing and that he was digitally penetrated. The sheriff accepted as much in respect of penetration in ruling as he did on the sufficiency of the evidence of contravention of section 19. As far as the allegation of reckless or intentional sexual touching was concerned, the jury was directed that X’s account provided the necessary corroboration. While X’s account of the “pelvic thrust”...
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