APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Dorrian Lord Bracadale	[2014] HCJAC 41 XC372/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL AGAINST CONVICTION AND SENTENCE   by   HMcA Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _____________

Appellant: E Forrest; Rhodes & Co, Dundee

Respondent: Fairley QC AD: the Crown Agent

 

16 April 2014

[1] On 21 May 2013, at the High Court in Livingston, the appellant was found guilty of four charges; 1 of rape and 3 of lewd, indecent and libidinous practices, 2 of which were at common law and one under section 5 of the Sexual Offences (Scotland) Act 1976.

[2] The libel of the rape was that it had occurred between March 1989 and April 1991 at the appellant's home in Craigshill, Livingston and was perpetrated on his daughter, then aged 19. She had been invited to stay overnight at the appellant's home and to have a bath after dinner. The appellant had entered the bathroom, washed her body, entered her bed, lain on top of her and penetrated her with his penis.

[3] The first of the lewd practices charges involved a libel that on various occasions, between April 1990 and April 1991, at the same address in Craigshill, he had entered the bedroom of another of his daughters, aged 15, and offered to massage her back. He had poured baby oil on her, rubbed her back, placed his hands between her buttocks and fondled her vagina.

[4] The second lewd practices charge involved a step-daughter, aged between 9 and 11, at two different addresses in Livingston, where she had lived with the appellant and her mother, between June 1991 and June 1994, during which he had entered a bathroom where she was having a bath, washed her back and handled her body.

[5] The final charge involved the appellant's step-granddaughter, then aged between 9 and 11. On various occasions between April 2001 and April 2004, at a garage in Armadale and one of the appellant's home addresses referred to in the previous charge, he had insisted in rubbing the girl's body with cream prescribed for a skin condition. He placed his hands inside her trousers, digitally penetrated her and compelled her to masturbate him. The offences also involved entering a bathroom when she was having a bath and again digitally penetrating her.

[6] On 13 June 2013, the appellant was sentenced to 7 years imprisonment on the rape charge, and sentences of 1 year consecutive on the second charge, admonition on the third and 2 years consecutive on the final charge.

[7] The submission was that the trial had judge erred in failing to sustain a no case to answer submission based on the insufficiency of evidence because, first, the complainers' testimony on the lewd practices charges could not corroborate that of the complainer in the rape; that is, in particular, the penile penetration. It was accepted that there were similarities in the circumstances of the various different charges, notably the family connections and the sexual aspects of the conduct. Nevertheless, there were insufficient similarities in the conventional elements of time, place and circumstance to amount to a sufficiency. In particular, although it was accepted that, as a generality, less serious conduct was capable of corroborating more serious conduct, the sexual abuse of young children involved a particular mind-set which was different from that involving the rape of an adult woman.

[8] Secondly, it was said that there was a difference in the nature of the crimes between the lewd conduct, where the mens rea involved a tendency to corrupt the innocence of the child, and the act of rape on an adult complainer. Finally, in relation to corroboration of the penetration in respect of the rape charge, greater caution was required where there was a significant time gap between the offences. The temporal difference between the act of penetration in the rape and the final indecent charge spanned a decade. That was insufficient to provide the necessary mutual corroboration of the two charges.

[9] As was said in MR v HM Advocate 2013 SCCR 190 (at paras [20] and [21]), what is being searched for in relation to mutual corroboration are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel, such as would demonstrate that the individual incidents are component parts of the one course of criminal conduct persistently pursued by the accused. Whether these similarities exist or not will often be a question of fact and degree for the jury to assess. There is no rule of law whereby what might traditionally have been perceived as less serious (eg non penetrative) criminal conduct cannot provide corroboration of what is libelled as a more serious (eg penetrative) crime. B v HM Advocate 2009 JC 88 is an example where lewd practices towards young girls may provide corroboration of lewd conduct towards an adult, if that conduct is similar in nature.

[10] In this case it is of particular significance that, in respect of all of the offences, these were committed against young female members of the appellant's family, mostly in his own home or en route to that home. There was a particular theme of washing, massaging or rubbing with cream in each.

[11] In these circumstances the trial judge was correct to report that it is inappropriate to approach matters in a compartmentalised way. The fundamental point remains that of whether the evidence is capable of indicating a course of conduct systematically pursued by an accused. The individual behaviour exhibited at different times may vary, but it is the course of conduct as a whole which must be examined. The fact that only some of the incidents in a course of conduct involved penetration, whilst others do not, does not lead to the conclusion that they cannot all be part of one course of conduct. The fact that only the first and final charges involved any form of penetration does not mean that only those two charges should be looked at when considering whether there is a sufficient temporal link, and links by way of other facts and circumstances, sufficient to provide the necessary mutual corroboration. For these reasons the trial judge was correct in repelling the no case to answer submission and this appeal must therefore be refused.