Man wins appeal against sexual assault conviction due to lack of corroboration of actus reus

The Sheriff Appeal Court held that with a statutory libel there had to be corroborated evidence of “an assault which was sexual in nature” and concluded that the evidence was “insufficient” to support a conviction.

Sheriff Principal Craig Scott QC, sitting with Sheriff Sean Murphy QC and Sheriff Principal Brian Lockhart, heard that the appellant Robert McBride stood trial at Ayr Sheriff Court on a single charge libelling a contravention of section 3 of the Sexual Offences (Scotland) Act 2009.

The complainer spoke to the libel, in which it was averred that the accused had handled her private parts.

There was also evidence of the appellant having apologised to the complainer, the complainer being seen to be “upset” after the incident; the appellant having been observed putting “an arm round the complainer’s shoulder”, and text messages between the complainer and a witness “LK” in the early hours of the morning after the incident from which the sheriff inferred that “something untoward” had happened to the complainer.

The appellant denied touching the complainer’s private parts and testified at trial that the only physical contact between himself and the complainer involved him putting his arm around her neck and shoulder.

He admitted that he had apologised to her, but explained that he had done so in the context of expressing sympathy for her grandmother who was ill at the time.

The sheriff rejected the appellant’s version of events, but on appeal the question arose as to whether the Crown had established a sufficiency of evidence against the appellant.

For the appellant it was submitted that the only evidence of a sexual assault of the nature libelled came from the complainer herself and that none of the complainer’s testimony provided corroboration of the libel.

It was argued that the evidence of distress could only amount to the occurrence of “some sort of distressing event” affecting the complainer in circumstances involving a lack of consent.

It was further submitted that the appellant’s apology was of “no moment” and the text messages emanated from the same, single source, namely, the complainer.

The advocate depute maintained that there was a sufficiency of evidence upon which the sheriff had been entitled to convict the appellant.

It was submitted that the evidence of the witness LK, evidence of physical contact between the complainer and the appellant, taken along with the complainer’s distress, was apt to afford corroboration of the complainer’s account involving a sexual assault.

However, the appeal sheriffs observed that the difficulty with the advocate depute’s reliance upon the evidence of LK was that the physical contact spoken to was “a discrete form of physical contact” from that which the Crown set out to prove under reference to the libel.

As the solicitor advocate for the appellant submitted, he had not been charged with a common law assault.

“Had that been so,” Sheriff Principal Scott said, “the Crown case might have benefited from a degree of latitude. However, with a statutory libel, there was no latitude as far as the actus reus was concerned.”

He added: “There had to be corroborated evidence of an assault which was sexual in nature.”

Delivering the opinion of the court, Sheriff Principal Scott said: “The difficulty we identify involves, on the one hand, the Crown founding upon LK’s testimony as corroboration of the sexual assault libelled and, on the other, the Crown’s acceptance of the fact that the actual conduct specified by LK in her evidence amounted to nothing more than ‘an arm around the complainer’s shoulder’. It seems to us that it is not open to the Crown to ‘ride both these horses’ in an attempt to establish corroboration for a sexual assault upon the complainer.

“Accordingly, we have reached the conclusion that the evidence in this case was insufficient to support a conviction. There was no corroboration of the complainer’s account to the effect that she had been sexually assaulted. We have answered the question posed in the stated case in the negative and quashed the conviction.”