Kilmarnock takeaway manager given 150 hours unpaid work for sexually assaulting female employee loses appeal against conviction

About this case:

• Citation:
  [2023] SAC (Crim) 6
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Wade

It was argued by appellant Bhupinder Singh, who was given 150 hours of unpaid work for the offence, that the sheriff erred in repelling a no case to answer submission. He separately argued that the sheriff’s decision lacked an adequate explanation for why he had accepted certain evidence given by the complainer.

The appeal was heard in the Sheriff Appeal Court by Sheriffs Principal Gillian Wade and Kate Dowdalls, together with Appeal Sheriff Fiona Tait. N Shand, advocate, appeared for the appellant and Jessop KC, advocate depute, for the Crown.

Alone on the premises

On 15 February 2021, the complainer was working a shift in the takeaway managed by the appellant. At around 5:30pm the appellant’s girlfriend came in and directed threats at the complainer, which caused her to leave early. She returned to work that day between 9 and 10pm after the appellant called her and asked her to return. The evidence led by the Crown was that, during this time, the appellant invited the complainer to join him in the rear of the shop and suggested he should “get a couch” for that purpose.

Later that night, the appellant and the complainer were again alone on the premises. He proceeded to place his hand on her right leg, beginning at her inner thigh and moving it upwards until his hand was over her private parts above her clothing. She stated she was uncomfortable, and the appellant moved away. She then left the takeaway, and at 2am on 17 February after a night out with friends disclosed to police officers what had happened to her.

The police seized from the complainer the grey leggings she said she had worn on 15 February, DNA analysis of which showed the DNA of the appellant on the waistband. It was stated by the forensic scientist that this finding was the result of either primary or secondary transfer. At trial, a no case to answer submission was made based on a lack of corroboration of the complainer’s conduct and of the evidence that she had worn the leggings on 15 February.

It was considered by the sheriff that the complainer’s evidence of the appellant’s conduct could be supported by the DNA sample taken from the front waistband of the complainer’s leggings. He did not accept there was a requirement for the Crown to corroborate the fact that the leggings seized on 17 February had been worn by the complainer on 15 February 2021 and found the evidence of the appellant to be wholly unconvincing.

Counsel for the appellant submitted, in line with the position at trial, that the complainer could not corroborate her own evidence. Further, her distress on 17 February could not corroborate lack of consent, and the Crown had failed to explain the delay in disclosure.

Cogent reasons

Delivering the opinion of the court, Sheriff Principal Wade said of the required corroboration: “The crime with which we are dealing here is a sexual assault by touching. What requires to be corroborated is that the complainer was assaulted in the manner alleged and that the perpetrator of that assault was the person responsible. Identity was not in dispute in this case. Accordingly the only matters which require corroboration are the sexual activity described in the charge and the complainer’s lack of consent.”

She continued: “Day in and day out juries are directed that a piece of circumstantial evidence may be spoken to by a single witness. In our view the submission that the wearing of the leggings on the day in question is a fact requiring to be specifically corroborated is wrong and we reject this criticism of the sheriff’s approach.”

Addressing the gap between the assault and disclosure, she added: “If the appellant’s approach were correct it would endorse rather than dispel what have come to be known as ‘rape myths’. That would be a retrograde step. Accordingly for these reasons we reject the second limb of the appellant’s argument.”

Addressing whether the sheriff’s reasoning was adequate, Sheriff Principal Wade concluded: “He was unimpressed by the appellant’s attempt to provide a narrative which explained the DNA findings, particularly as he had failed to mention these matters in his earlier statements. He was critical of the lack of conjunction of testimony between the appellant and the other defence witnesses; the delivery driver’s evidence refuted the appellant’s position in respect of the driver’s whereabouts and duties on the evening in question. These are detailed and cogent reasons for the conclusion reached by the sheriff and the appellant accordingly fails in this regard.”

Accordingly, the appeal against conviction was refused.