Appeal Against Conviction By Ds Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lady Clark Of Calton,Lord Brodie |
| Neutral Citation | [2017] HCJAC 12 |
| Published date | 28 February 2017 |
| Date | 08 February 2017 |
| Docket Number | HCA/2016 |
| Court | High Court of Justiciary |
| Year | 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 12
HCA/2016/000318/XC
Lord Brodie
Lady Clark of Calton
Lord Turnbull
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL AGAINST CONVICTION
by
DS
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: J Keenan, (sol adv); Capital Defence Lawyers
Respondent: Edwards QC, AD; Crown Agent
8 February 2017
Introduction
[1] On 27 April 2016, at Perth Sheriff Court, the appellant went to trial on an indictment containing two charges of lewd, indecent and libidinous practices and behaviour towards two complainers. The charges were in the following terms:
“(1) between 1 January 2000 and 1 November 2003, both dates inclusive, at [an address in Perth] and [an address in Dunfermline… you [DS] did use lewd, indecent and libidinous practices and behaviour towards [GB]… then aged between 10 and 13 years…and did repeatedly put your hand down his shorts, fondle his genitals, masturbate him until he ejaculated, remove your underwear, cause said [GB] to watch as you masturbated yourself to ejaculation, kiss him on the face and neck and induce him to masturbate you;
(2) on 4 August 2010 or 5 August 2010 at [an address in Leven] you did use lewd, indecent and libidinous practices and behaviour towards [KW]…then aged 12 years…a girl then over the age of 12 years and under the age of 16 years, and did put your hands down her shorts and touch her on her vagina;
Contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 6.”
[2] At the close of the Crown case a submission was made by the defence in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 that the appellant had no case to answer, in that the Crown had failed to corroborate the accounts given by the respective complainers. In response, the prosecutor pointed to the similarities of the conduct which was the subject of charge 1 to that which was the subject of charge 2, and explained that the Crown relied on the doctrine of mutual corroboration associated with the decision in Moorov v HM Advocate 1930 JC 68. The sheriff repelled the section 97 submission. The appellant led no evidence. The jury thereafter convicted him of both charges by a majority. [3] Having adjourned the diet to obtain a Criminal Justice Social Work Report and a Tay Project Report, on 15 June 2016 the sheriff imposed on the appellant what she intended to be an extended sentence as provided for by section 210A of the 1995 Act, with a custodial term of 38 months and an extension period of 18 months. In her report to this court the sheriff describes the process adopted by her in imposing sentence in the following terms:
“I sentenced the appellant to 26 months’ imprisonment on charge 1 and to 12 months’ imprisonment on charge 2 to run consecutively to the period of imprisonment on charge 1. I imposed an extended sentence within the meaning of section 210A Criminal Procedure (Scotland) Act 1995 comprising the custodial period of 38 months and an extended period of 18 months.”
The sentence is recorded in the minutes of proceedings as follows:
“The Court having considered the report now lodged and heard from Mr McLaughlin for the accused in mitigation of sentence and being satisfied that no other method of disposal was suitable because of the nature of the offence, sentenced the accused to 26 months’ imprisonment from this date on charge 1 and sentenced the accused to 12 months’ imprisonment on charge 2 to run consecutively to the period of imprisonment imposed in respect of charge 1, total imprisonment 38 months from today’s date.
[A paragraph then records a finding of guilt and a sentence in respect of a contempt of court]
The Court imposed upon the said accused an extended sentence of imprisonment within the meaning of section 210A of the Criminal Procedure (Scotland) Act 1995 comprising the custodial period of 38 MONTHS and an extended period of 18 MONTHS to commence from 15 June 2016.”
[4] The appellant appeals against conviction and sentence. In relation to conviction the appellant submits that the sheriff was wrong to repel the section 97 submission; the conduct to which the respective charges related being insufficiently connected in terms of time, character and circumstance to allow the doctrine of mutual corroboration to apply. As to sentence, it is submitted that the length of the custodial term was excessive having regard to the nature of the conduct, the appellant’s age and his limited record. No point is taken by the appellant in relation to whether the sheriff was entitled to impose an extended sentence or how she went about doing so.
Evidence at trial
Charge 1
[5] The appellant was introduced to the family of the first complainer in charge 1, GB, in or around 2000 through a family friend. They were all members of, or acquainted through, a church community. The complainer’s family welcomed the appellant into their home and the appellant became a regular visitor. He took a particular interest in the complainer, paying less attention to the complainer’s older brother, who was the more outgoing of the two children. The appellant bought a number of gifts for the complainer, including a hi-fi system and PlayStation games. On occasions the appellant slept over at the complainer’s family home, sleeping in the complainer’s bedroom where there was a spare bed.
[6] The alleged conduct which was the subject of charge 1 took place in 2002 to 2003 when the complainer was 12 or 13 years old. There were two chapters of evidence: the first related to what was said to have occurred within the complainer’s family home in Perth, and the second related to what was said to have occurred in the appellant’s home in Dunfermline. During the first chapter, the complainer spoke to being in bed, to the appellant being beside him, his right arm behind his head and to the appellant speaking to him about matters of a sexual nature. With his left hand the appellant stroked the complainer’s penis, masturbated him and took his boxers off to ejaculate. The appellant then masturbated himself to ejaculation. Both washed themselves and went to sleep. The complainer thought that this had happened on two or three occasions.
[7] At the appellant’s home in Dunfermline, the complainer had a bath and was being dried when the appellant invited him to go into the bedroom to lie on the bed. The appellant told the complainer that it was normal to “wank” and he masturbated the complainer to ejaculation. He then put the complainer’s hand on his penis for him to be masturbated to ejaculation. He kissed the complainer on the neck and cheek while he masturbated. Again, this conduct took place on two or three occasions. When the sheriff discusses the evidence at pages 4 and 5 of her report, the kissing takes place in the second chapter of evidence. When the sheriff discusses the evidence at pages 10 and 11, the kissing takes place in the first chapter of evidence.
Charge 2
[8] The appellant met the older sister of the second complainer in charge 2 in 2010 in homeless accommodation. The complainer’s sister then brought the appellant to her mother’s home where the complainer lived with her mother and other siblings. The appellant became a regular visitor, welcomed by the complainer’s mother who assisted him with paperwork. The appellant brought gifts for the complainer’s siblings, and on one occasion bought the complainer a toiletries set.
[9] On the day prior to the offence, the complainer and her mother had argued. It was agreed that the appellant would take the complainer on an outing to Edinburgh the following day. That evening the appellant and the complainer travelled by bus to the appellant’s home. Once at the appellant’s home, the appellant and the complainer watched a film together. The complainer changed for bed and went to bed in the appellant’s bedroom. The appellant said that he would sleep on the sofa in the sitting room. Just as the complainer was falling asleep, the appellant came into the bedroom, topless. Without speaking he entered the bed and put his hands down the front of the complainer’s shorts and touched her vagina. The complainer jumped out of bed, left the bedroom and locked herself in the bathroom for the rest of the night. The following morning neither the appellant nor the complainer referred to what had taken place. They travelled to Edinburgh and the appellant offered to buy various presents for the complainer, which she rejected. The complainer telephoned her mother to ask to come home early but her mother was unable to collect her. After the incident the complainer avoided the appellant on the occasions he visited the family home.
Submissions: conviction appeal
Appellant
[10] A case and argument had been lodged. It was supplemented by oral submissions by the solicitor advocate appearing on behalf of the appellant. The solicitor advocate submitted that the sheriff had erred in repelling the submission of no case to answer. The alleged offences were insufficiently connected in terms of time, character and circumstances to allow the doctrine of mutual corroboration to apply as between the evidence of the first complainer in relation to charge 1 and the second complainer in relation to charge 2. In advancing that submission, four particular factors were highlighted: (i) the period of time between the two charges was substantial, being at its shortest a period of six years and nine months and at its longest a period of ten years and seven months; (ii) there were only two offences committed against complainers of different sexes; (iii) the nature and the gravity of the conduct in the respective charges was different (the conduct libelled in charge 1 occurred over a significant period of time and on a number of different occasions, involving masturbation of the complainer and masturbation of the appellant whereas the conduct libelled in charge 2 occurred on one occasion and involved one brief...
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