Alexander Garland v. Her Majesty’s Advocate [2020] HCJAC 46

Note of appeal against conviction:- On 6 December 2019, following a trial at the high court, the appellant was convicted of charge 2, a charge of sexual assault perpetrated against KC, an 11 year old girl, in 2019 when the appellant was aged 32, in that he did “did lie beside her, place your hands inside her lower clothing, touch and rub her buttocks and repeatedly take her hand and compel her to touch your penis: contrary to section 20 of the Sexual Offences (Scotland) Act 2009 ...”. The appellant was acquitted of charge 1 on the indictment, the rape of a 19 year old. On 16 December the appellant was sentenced to 18 months imprisonment three months of which were attributable to a bail aggravation. The appellant appealed against his conviction on the grounds of alleged misdirections by the trial judge about the content of various letters written by the appellant to his former partner in advance of the trial. The appeal evolved, however, into consideration of whether there was a sufficiency of evidence in relation to charge 2, in particular, whether the contents of the appellant’s evidence in which he denied the conduct alleged and one of the appellant’s letters provided corroboration of KC’s evidence. At the trial the Crown had relied upon the application of the doctrine of mutual corroboration in relation to both charges. The Crown also sought a conviction on the basis that there was standalone corroboration on each charge. In the defence speech it was submitted on behalf of the appellant that the Crown were not entitled to seek a conviction on a standalone basis, however, a specific direction was not requested that if the jury rejected the evidence of the complainer on the rape charge, they would have to acquit the appellant of charge 2. In his charge to the jury the trial judge stated that it was a matter for the jury to decide whether the contents of the letter amounted to an admission. The ground of appeal stated that the trial judge erred in directing the jury that the content of the letters could be interpreted as an admission and that the jury ought to have been directed that charge 2 could only be proved by the application of the doctrine of mutual corroboration. It was submitted that the trial judge erred in failing to direct the jury that the appellant’s evidence and the letter could not provide corroboration of the complainer’s evidence. It was submitted that there had been no admission of inappropriate touching by the appellant and what was said in evidence and in the letter were wholly exculpatory. On behalf of the Crown it was submitted that there was a sufficiency of evidence based on what the appellant had said both in evidence and in the letter. It was submitted that what was said were capable of being taken as containing admissions that the complainer had repeatedly touched the appellant’s penis and the jury were entitled to accept that and reject the appellant’s qualifications on the point. Here the court refused the appeal. The court stated that whilst it was understandable that the focus of the trial had been on charge 1, it was unfortunate that the Advocate depute during the trial did not make it clearer precisely what the standalone corroboration was in relation to charge 2 as the letter was making reference to something that occurred in the living room whereas the complainer spoke to the relevant incident taking place in the bedroom where the complainer described the appellant doing various things to her. The court also stated that it was unfortunate that the trial judge did not provide the jury with clearer directions on where they could find standalone corroboration of the complainer’s evidence. The court noted that the trial judge had left it to the jury to decide whether the relevant letter contained any admission by the appellant whereas the court considered it was necessary for the trial judge to refer in the jury directions to the specific part of the letter said to be capable of corroborating the complainer’s account. The court considered, however, that what was clear from the verdict of the jury was that they found the evidence of the complainer to be credible and reliable and the only issue then became whether there was corroboration of the complainer’s evidence to be found in the evidence led. Here the court considered that there was evidence which confirmed or supported the complainer’s account. The court reiterated, referring to Fox v HMA 1998 JC 73, that it is not necessary for the facts and circumstances relied upon to be more consistent with the direct evidence than an explanation or account given by an accused, rather, it is sufficient that the facts and circumstances are capable of confirming or supporting the complainer’s evidence. The court considered that the following facts and circumstances were capable of corroborating the complainer’s evidence:- (1) the relationship between the appellant and the complainer was not a familial one; (2) despite the relatively remote nature of that relationship, the appellant was purchasing the complainer expensive presents which the jury would be entitled to infer amounted to the appellant seeking to ingratiate himself to her; (3) the incident occurred when the complainer’s mother was away at work; (4) the appellant had accepted that he was in bed with the complainer at about 4.00pm which the jury would be entitled to consider unusual in the circumstances; (5) the appellant had accepted that he was in close contact with the complainer cuddling under the bedcovers which the court considered would be of significance had it been seen by an eye witness and no less so simply because described by the appellant himself; and (6) the appellant accepted that the complainer’s hand was touching his penis over his shorts on two occasions which, again, if spoken to by an independent eye witness would be significant so it was equally significant when spoken to by the appellant. The court considered that it was a matter for the jury to decide whether they regarded the various facts and circumstances listed as confirming or supporting the complainer’s evidence or whether a different interpretation could be put on them.