Man convicted of sexually assaulting young daughter and friend loses appeal against conviction

About this case:

• Citation:
  [2023] HCJAC 35
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Pentland

It was argued on behalf of the appellant GH that the circumstances of the two offences were not sufficiently similar as to allow a jury to use them to mutually corroborate one another. The jury returned a not proven verdict in a third charge involving a different complainer.

The appeal was heard by Lord Pentland, Lord Doherty, and Lord Boyd. M Davidson, advocate, appeared for the appellant and Jessop, solicitor advocate, for the Crown.

Isolated incidents

Evidence was given by the appellant’s daughter, complainer LS, that the abuse began when she was five years old and woke up to find him performing oral sex on her. The abuse happened every couple of months when she was aged between six and 11, always when the appellant was drunk. She also testified that he used to look at her when she was in the bath and felt she did not have any privacy.

The complainer in the other charge, LH, was a friend of LS. She had been at a house party at an address where the appellant lived when, later on in the evening after everyone had consumed alcohol, the appellant attempted to kiss her in the bathroom. She went to the living room, where the appellant “tried to do things” to her, and then left.

In his speech to the jury the procurator fiscal depute relied upon mutual corroboration for each of the charges, including the third charge for which a not proven verdict was returned. He noted that in each of the cases the age difference between the appellant and complainer was similar, that each offence had taken placed in the appellant’s home, and the conduct was similar. The sheriff directed the jury that they must be cautious about applying mutual corroboration to the evidence of only two complainers.

For the appellant it was submitted that, at its highest, the evidence was of isolated incidents of sexual offending. While some aspects of the charges could be said to be similar, the other differences were indicative of there not being a single course of conduct pursued by the appellant. These included the age difference between the complainers at the time of the offences and the differences in conduct.

Took advantage

Lord Pentland, delivering the opinion of the court, began by noting: “In recent times the court has stressed that it is always a question of fact and degree whether the conventional similarities in time, place and circumstances exist so as to allow the inference to be drawn that there was a single course of criminal conduct persistently pursued.”

He continued: “It is only where it is impossible to say on the evidence that the individual incidents were component parts of a single course of conduct persistently pursued that there will be an insufficiency of evidence as a matter of law. The test of impossibility is obviously a high one. If that test is not capable of being met, the issue becomes one of the weight to be given to the evidence. In our system questions of weight are for the jury, not the judge.”

Addressing whether the sheriff had correctly directed the jury, he said: “The effect of the sheriff’s directions was that he instructed the jury that there was sufficient evidence to allow them to use the doctrine of mutual corroboration in respect of the evidence led on charges 1 and 3 and to return convictions on those two charges even if they were not satisfied beyond reasonable doubt of the accused’s guilt on charge 2. The court is satisfied that the sheriff was correct.”

He went on to say: “It is not difficult to discern from [the] common features an underlying pattern running through the appellant’s offending. Essentially, when he was under the influence of alcohol he took advantage of young vulnerable females, who were in his home, in circumstances where he was able to gain access to them by invading their privacy or security.”

Lord Pentland concluded: “No doubt there were also dissimilarities between the circumstances in which the complainers were abused – this will often be so; the form that the abuse took was not identical; one complainer was a good deal younger than the other; some years had passed between the episodes. The significance of these features of the respective accounts in the context of the whole evidence was quintessentially a matter for the jury to weigh up when they came to consider whether they were willing to apply the doctrine of mutual corroboration, as to the rules of which they had received proper directions.”

The appeal against conviction was therefore refused.