Uncle found guilty of sexually assaulting nephew and niece fails in appeal against conviction

The appellant argued that the first charge, which involved touching and massaging a boy on the leg and groin area while applying sun cream, was not a “sexual” offence, meaning there was no corroboration of the second charge, which involved touching and rubbing a girl’s private parts over her clothing.

However, the Sheriff Appeal Court refused the appeal after ruling that there were “sufficient similarities” between the two offences to constitute “one course of conduct”.

‘No case to answer’

Sheriff Principal Duncan Murray, sitting with Appeal Sheriff Grant McCulloch and Appeal Sheriff Norman McFadyen, heard that the appellant “CG” was found guilty, after a lengthy summary trial at Dundee Sheriff Court of two charges in the complaint against him.

Charge 2 was charge of contravention of sections 20 and 55 of the Sexual Offences (Scotland) Act 2009, between 12 and 19 October 2016 at a hotel pool side in a holiday resort in Spain, in respect of a single incident of sexually assaulting a boy of 10 or 11 years by touching and massaging him on the leg and groin area while applying sun cream to his body.

Charge 3 was a charge of sexually assaulting a girl aged between five and eight years on various occasions between 28 August 2014 and 16 May 2017, by touching and rubbing her private parts over her clothing with his hands. 

The had no recollection of the incident and the only witness to the incident was his mother, who described her child’s uncle as massaging her son with sun cream from his ankles right up to his thighs, placing his hands underneath the child’s knee-length shorts with one hand on each leg and continuing to massage him to the top of his thighs.

She told the court that his hands were inside the boy’s shorts “at the top of his thighs at either side of his groin area”.

She thought it was “odd” and felt “uncomfortable” and brought it to an end by saying something like “Oh [child’s name], that must be a bit tickly, that’s enough”.

At the close of the Crown case the defence made a “no case to answer” submission, on the basis that the conduct in charge 2 was not “sexual” within the meaning of the 2009 Act, which meant that, because of the reliance on the mutual corroboration principle, there was “no basis” for corroboration of charge 3.

But the summary sheriff repelled the submission after ruling that the conduct described was “sexual” in nature, and that ultimately convicted the appellant after applying the doctrine of mutual corroboration, as set out in Moorov v HM Advocate 1930 JC 68.

‘Sufficient similarities’

The appellant appealed to the Sheriff Appeal Court, but the appeal sheriffs ruled that the sheriff was entitled to apply the doctrine in the circumstances and to convict the accused.

Delivering the opinion of the court, Appeal Sheriff McFadyen said: “On the submission of no case to answer, and ultimately in relation to conviction, with regard to the touching being sexual, the summary sheriff founds on the nature of the activity, there being no reason for applying sun cream under the child’s shorts, to the top of his thighs and to his groin area. 

“While the circumstances are unusual, in that everything took place at the poolside and in full view of the child’s mother, we consider that the evidence of the appellant’s action, in applying sun tan lotion under the male child’s long shorts and in the region of his groin area entitled the sheriff to be satisfied that the appellant’s conduct was sexual; it was touching which a reasonable person would, in all the circumstances of the case, consider to be sexual.”

Turning to the question of mutual corroboration, the court observed that the offences occurred between a “reasonably concise time period”.

He continued: “There are obvious features of similarity. Both complainers were infant children and indeed siblings. The appellant was part of the same close family and accordingly enjoyed close access to the children.

“In both cases the appellant has allegedly touched the complainer, in the girl’s case in the area of her vagina, over her clothing and in the boy’s case at least at his groin area. Allowing for the biological differences, the parts of the body targeted are certainly in proximity.

“There are, of course, differences. One child is male, the other female. There is no similarity of place in the sense that charge 2 was at a poolside in Spain, in full view of the relevant child’s mother. 

“The conduct alleged is different in the sense that the behaviour towards the boy was a single episode presented as massaging sun cream on the boy’s legs, a public and at first sight innocent activity, as opposed to the more overt (but private) and repeated conduct towards the girl, involving direct touching and rubbing (over the clothing) of her vaginal area.”

However, the conduct described in the two offences was “broadly similar”.

Sheriff McFadyen concluded: “In probably the majority of mutual corroboration cases there will be some differences in the conduct which is complained of, but in this case what was alleged and accepted by the sheriff involved conduct of a broadly similar character. 

“We are satisfied that the similarities in time, character and circumstances of the conduct, addressed as it was to two young children in the same broader family as the appellant, to whom he had close physical access as part of that family, committed over a relatively short period of time and involving touching of the children in one case over and in the other at the genital area, provide sufficient similarities properly to demonstrate one course of conduct persistently pursued by the appellant.

“The sheriff was entitled to apply the doctrine and to convict the appellant. The appeal must therefore be refused.”