Sex offender who inappropriately touched 11-year-old loses appeal against conviction

Lord Carloway
Lord Carloway

A man found guilty of sexually assaulting an 11-year-old girl who argued that there was insufficient evidence to convict has lost his appeal against conviction.

Alexander Garland was sentenced to 18 months’ imprisonment, three of which were attributable to a bail aggravation, after assaulting the complainer, KC, in May 2019 at the address where he lived along with the complainer’s mother.

The appeal was heard in the High Court of Justiciary by the Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull.

In a relationship with her mother

The detail of the libel was that the appellant lay beside the complainer, touched and rubbed her buttocks, and compelled her to touch his penis. He was also charged with the rape of a 19-year-old, but the charge was found not proven.

At the time of the offence, the appellant had been in a relationship with the complainer’s mother. The complainer had come home from school and gone into her mother’s bedroom to lie down because she was tired. Following the incident, she asked the appellant to phone her grandmother, with whom she lived, who collected her from the house.

The Crown evidence consisted of a joint investigative interview of the complainer, as well as witness testimony from her mother and the deputy headteacher of her school, who was told about the incident by the complainer around two weeks later.

In her evidence, the complainer’s mother spoke to a number of letters written to her by the appellant. In the letters, he denied any wrongdoing and stated that the complainer had touched him while he was on the couch and then hit him in his private parts. The appellant made no comment when interviewed by the police. When he gave evidence at the trial, he responded that the charge was “absolute bull”.

At the end of the trial, no submission of no case to answer was made by the appellant. The advocate depute, whose focus was primarily on the rape charge, contended there was a sufficiency of evidence for each charge without the need for mutual corroboration. He contrasted the lack of detail in the appellant’s letter of 20 June with the more detailed evidence given by him at trial.

It was submitted for the appellant that the trial judge had erred in directing the jury that the content of the letters could be interpreted as an admission. The letters did not contain an admission of wrongdoing or inappropriate behaviour, and the judge should have directed the jury that there was no corroboration available in the appellant’s letters or his testimony.

Unusual situation

Delivering the opinion of the court, Lord Carloway noted that it was unfortunate that the main focus of the AD’s address was the rape charge, saying: “The Crown did not spell out in much clearer terms exactly what they were founding upon as standalone corroboration on the charge under consideration. It would appear, from what the AD said to the jury, that she may have been founding solely upon the content of the letter of 20 June and asking the jury to reject the appellant’s testimony in its entirety.”

He continued: “The judge’s understanding of the AD’s speech reflected the focus on the letters, or rather a letter, rather than the appellant’s testimony. He left it to the jury to decide whether the letter contained ‘any admission’. He ought to have given the jury clear directions on where corroboration might be found by identifying with reasonable precision any passages in the letter, or elements of the appellant’s testimony, which might constitute corroboration.”

Noting that it was clear the jury accepted the testimony of the complainer he went on to say: “The only real question is whether corroboration could be found in either the testimony of the appellant or in the earlier letter. That involves a consideration of whether what the appellant said or wrote ‘confirms or supports’ the complainer’s account.”

It was held that the facts and circumstances of the case did support the complainer’s testimony. Lord Carloway explained: “Notwithstanding the relatively remote nature of the relationship, the appellant was buying the complainer presents of significant value. The jury would have been entitled to consider that he was deliberately ingratiating himself to her.”

He added: “The appellant accepted that he was in bed with the complainer, that is to say an 11 year old girl, at about 4.00pm.The jury would have been entitled to regard this as unusual in a situation in which he was only supposed to be looking after the complainer in the period between her return from school and going to her grandmother’s house.”

The Lord Justice General concluded: “The appellant accepted that the complainer’s hand was touching his penis, albeit over his shorts, on two separate occasions. The same consideration applies here in relation to testimony from an eye witness who might have observed this happening. It was then a matter for the jury to decide whether they regarded these facts and circumstances as confirming or supporting the complainer’s testimony or whether they interpreted them in a different manner.”

For these reasons, the appeal was refused.

© Scottish Legal News Ltd 2021

Other judgments by Lord Carloway