Sex offender has sentence reduced over ‘material misdirection on mutual corroboration’

The appellant argued that only one of the three episodes was corroborated and that the sheriff failed to give the jury directions on the principle of “mutual corroboration”.

Allowing the appeal, the judges quashed the two disputed parts of the libel after ruling that there had been a “material misdirection”.

‘Omnibus charge’

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that in August 2018 following a trial at Dumfries Sheriff Court the appellant Piotr Rysmanowski was convicted of an omnibus charge which libelled that on various occasions between 22 August and 9 September 2017 he sexually “RS”, his partner’s 12-year-old daughter, in that he: (a) induced her to remove her clothing before licking and handling her genitals; (b) removed his trousers and induced her to masturbate him; and (c) on one occasion handled her buttocks over her clothing; contrary to section 20 of the Sexual Offences (Scotland) Act 2009.

The court was told that the complainer and her family, including the appellant, moved from Poland to Scotland when she was aged 13 and that they all lived together in a flat above her aunt and uncle’s shop in Lockerbie.

RS spoke to parts (a) and (b) of the charge and then went on to describe part (c), which occurred less than three weeks after her arrival in the town.

The complainer gave evidence that on one specific occasion, the appellant had been lying on a bed and had grabbed her bottom when her mother had unexpectedly returned to the flat from work.

The complainer’s mother, who was described as being “shocked and furious”, told the appellant to leave, and the police were called after RS told her everything.

The potential corroboration came from the complainer’s mother, who spoke to going back to the flat on 9 September 2017 and seeing the complainer standing clothed beside the appellant, who was reclining on a bed.

She said the appellant was touching the complainer on her genital area and her buttocks, which accorded with part (c) of the charge.

‘Single crime of sexual assault’

The sheriff directed the jury on the general need for corroboration, explaining that the acts libelled constituted “a single crime of sexual assault”.

He said that acts of intentionally or recklessly touching a person under 16 sexually were essential elements of the charge and had to be proved by corroborated evidence, before adding that “the other elements of the charge are descriptive only to give the accused fair notice of how the crime is alleged to have been committed and don’t need to be corroborated”.

The sheriff said that the “case stands or falls on the evidence” of the complainer and that if the jury accepted that the complainer was credible and reliable, “there must be evidence supporting what she says”.

That support came from the evidence of her mother, who had given evidence “about some elements of the charge, although not all of them”.

Having been found guilty, the appellant was sentenced to two years’ imprisonment on the sex assault charge and a further four months for breach of a bail condition not contact or communicate with the same complainer.

‘Mutual corroboration’

The appellant’s ground of appeal was that the complainer had described three separate episodes, with only the final one being corroborated; there had been “insufficient evidence” on heads (a) and (b) of the libel.

However, this argument was departed from in favour of a new ground, which had not passed the sift, that the sheriff had failed to provide the jury with an “appropriate route to verdict” when there was an omnibus charge and direct corroboration of only one of the elements.

That route would have been open only if the jury applied the principle of mutual corroboration, but no directions on mutual corroboration had been given.

It was accepted that there was a sufficiency of evidence, but there was no direction on the appropriate route where an omnibus charge was libelled.

The sheriff reported that he viewed the incidents as a single course of conduct, but the jury were not given any directions to the effect that, if they had held that the incidents constituted such a course of conduct, then not all of the elements required corroboration.

A specific direction to that effect would have had to have been given in order to provide sufficient evidence to convict of the whole charge.

‘Material misdirection’

Having allowed the appellant to amend his note of appeal to introduce the new ground, the appeal judges ruled that parts (a) and (b) of the libel should be deleted and therefore reduced the sentence from two years to eight months imprisonment.

Delivering the opinion of the court, the Lord Justice General said: “It is apparent that this area of the law is continuing to cause difficulties in practice. It need not do so.

“First, although the Crown may be allowed considerable latitude when framing a criminal charge involving young children, that has no bearing on the need to corroborate each separate criminal act, whether these form part of a course of conduct or not and whether the crimes are sexual in nature or not.

“Secondly, the need for corroboration may be satisfied as a result of the application of mutual corroboration. In this case, the events libelled, which occurred on separate days over a period of time during which the complainer was otherwise living normally with her family, were separate criminal acts. Corroboration could not be supplied in the same manner as in a single assault, involving different elements, occurring at or about the same time or as part of an uninterrupted continuum.

“However, thirdly, applying mutual corroboration, the mother’s evidence about the final episode could corroborate the earlier episodes spoken to by the complainer, and vice versa. For a conviction of the whole charge, the jury would have to hold that each episode was a component part in a single course of conduct persistently pursued by the appellant.

“That in turn requires the jury to examine the similarities and dissimilarities in time, place and circumstances. It is important to recognise in all of this that the phrase ‘course of conduct’ has no significance in relation to sufficiency of evidence other than in the context of mutual corroboration.”

Lord Carloway concluded: “The fundamental problem in this case is that the jury were not directed to the possibility of applying the principle of mutual corroboration in order to find the whole charge proved. They were directed to approach the charge as if it constituted a single crime in which the separate episodes did not require to be corroborated at all. This was a material misdirection which must result in the quashing of heads (a) and (b) of the conviction.

“The principle of mutual corroboration is well understood. Corroboration of separate offences can, in defined circumstances, be provided by different complainers. The principle can apply to the evidence of a single complainer who speaks to separate offences, which are all committed against her, where there is a separate witness who speaks to one or more of these offences and the whole series constitutes the requisite course of conduct.

“In these circumstances, the route to verdict must include the conventional directions in a mutual corroboration case. There is no other route involving corroboration of a course of conduct.”