Man convicted of masturbating in view of neighbour partially succeeds in appeal over lack of corroboration

Ricky Taylor was given a restriction of liberty order and a community payback order with a period of supervision after being convicted of “coercing another into being present during sexual activity”.

But the Sheriff Appeal Court reduced his sentence after ruling that only one of the incidents was corroborated.

Sheriff Principal Ian Abercrombie QC, sitting with Sheriff Principal Craig Turnbull and Appeal Sheriff Sean Murphy QC, heard that the appellant was convicted at Aberdeen Sheriff Court of a contravention of section 5 of the Sexual Offences (Scotland) Act of 2009 for exposing himself and attracting the attention of his neighbour before masturbating on four occasions between 16 October and 16 November of 2017.

The court was told that the neighbour spoke to seeing the appellant masturbating in his bedroom on two occasions in October 2017 and one in November 2017.

On each of those occasions he had been standing at the bedroom window, which he had tapped to attract her attention during one of the incidents.

She told her partner what she had seen and he observed the final episode on 16 November from an upstairs window in their house.

On that occasion the appellant had masturbated in the kitchen, after whistling to attract the attention of the first complainer.

At the close of the Crown case a defence submission of no case to answer was made, which was repelled by the summary sheriff.

The basis of the summary sheriff’s decision was that she considered that the corroborated incident, being so close in time and character to the other incidents which were spoken to by the first complainer alone, amounted to a “course of conduct” with the result that support for her account could be provided by the other witness’s account in relation to the final incident only.

The appellant challenged that decision and appealed against the conviction on the basis that only the final episode, that which occurred on 16 November 2017, was corroborated in the evidence which was heard.

Two questions were set out within the stated case: firstly, was the summary sheriff entitled to repel the submission of no case to answer; and secondly, was the summary sheriff entitled to convict the appellant of four incidents rather than the one incident of 16 November 2017?

The appeal court answered the first question in the affirmative, as it was conceded that there was evidence from two sources in relation to the incident on 16 November, meaning a no case to answer submission could not have succeeded in relation to the whole charge.

But in relation to the second question, the appeal sheriffs held that each incident required to be corroborated.

Delivering the opinion of the court, Appeal Sheriff Murphy said: “In our view, the circumstances of the present case represent a series of incidents, only one of which was corroborated. That is a different matter from a single incident in which not all details are corroborated and the Crown originally sought to secure a conviction by treating the different episodes as a single charge because they were said to form part of a single course of conduct.

“However, while they may be different manifestations of a single course of conduct, each episode in our view was in fact a separate incident which required to be corroborated of itself. A similar type of situation was considered by the High Court of Justiciary in the case of Spinks v Procurator Fiscal, Kirkaldy [2018] HCJAC 37 where the Crown argument was rejected.”

The advocate depute submitted that the case of Wilson v HM Advocate 2017 JC 64, provided support for the Crown’s position.

It was argued that paragraph [15] of the decision indicated that not all of the episodes required to be corroborated or to be spoken to by more than one witness, in effect under reference to the doctrine of “mutual corroboration”, but the appeal sheriffs were not persuaded by that argument.

Sheriff Murphy said: “We do no agree with the interpretation that has been placed by the Crown on paragraph [15] in the case of Wilson, a case which dealt with two separate charges and not with a single charge covering two episodes.

“The final sentence of the paragraph reads, ‘However, equally there is no need for the complainers in two or more charges to be different provided there are two sources of evidence to prove the crucial facts’. In our view that must be construed as a reference to proving the crucial facts in relation to each of the charges.”

He added: “Following Spinks, in the present case it would mean that two sources would be required to prove each separate episode within the overarching charge. Accordingly, in our view the appropriate course for us to follow in the present case is the course taken by the High Court in the case of Spinks.

“It follows that we must answer the second question posed by the summary sheriff in the negative and we will allow the appeal to the extent of restricting the conviction to the events of 16 November 2017 only.”

The court, having deleted a significant number of incidents from the charge, reduced the period of the RLO to one of three months and reduced the period of unpaid work, the punitive element of the CPO imposed in the lower court, to one of 150 hours, but considered that it would not be appropriate to reduce the lengthy period of supervision imposed by the sheriff.