C.W. v. Her Majesty’s Advocate [2016] HCJAC 44

Note of appeal against conviction:- The appellant was convicted after trial at the High Court of a charge of indecent assault on JW by masturbating and performing oral sex on him whilst he was asleep (charge 1) and a further charge of sexual assault on JW in similar terms to charge 1 but contrary to section 3 of the Sexual Offences (Scotland) Act 2009 (charge 2) to reflect the coming into force of the 2009 Act on 1 December 2010. In addition, the appellant pled guilty during the course of the trial to engaging in sexual activity with a person DA under the age of 18 which included performing oral sex on the complainer contrary to section 42 of the Sexual Offences (Scotland) Act 2009 (charge 5). The appellant appealed against his conviction and the issue raised by the appellant was whether the evidence in respect of charge 5 was capable of corroborating the evidence of the complainer on charges 1 and 2 in that consent was not an issue for proof of charge 5, but was an essential element of charge 2 which required to be corroborated. It was submitted on his behalf that an absence of consent was essential for the Crown to prove in either the common law charge of indecent assault or a sexual assault under section 3 of the 2009 Act and required corroboration. It was submitted that evidence led in respect of charge 5 could not corroborate a lack of consent as all that was required to prove a contravention under section 42 was that an accused intentionally engaged in a sexual activity with or towards a person under 18 whilst in a position of trust. In other words it was contended that proof of an offence which did not require lack of consent for its commission (charge 5) could not corroborate evidence relating to an offence which did require lack of consent (charges 1 and 2). It was further submitted that the sheriff erred in his directions to the jury when he directed them that if they were satisfied on the first complainer’s evidence that the acts spoken to by him were not consensual they could find corroboration for that in the evidence of the second complainer because he was under the age of 18 and his lack of consent was implied. On behalf of the Crown it was submitted that simply because the crimes libelled were different did not prevent the application of the doctrine of mutual corroboration as it was the underlying similarity of conduct which must be examined and as it could apply to crimes with a different nomen juris it followed that it could apply where the essential elements which the Crown had to establish for each crime were different, for example, in a charge of rape, where penetration is an essential element, MR v HMA 2013 JC 212 illustrates that such a charge can be corroborated by evidence of conduct towards another complainer falling short of penetration and the critical issue is whether the evidence was capable of indicating a course of conduct systematically pursued by the accused. Here the court allowed the appeal and considered that the trial sheriff had misdirected the jury when he said that a lack of consent was to be implied in relation to charge 5 as, in terms of section 42, unlike, for example, section 17 where a person is incapable of consent, the question of consent is immaterial. In other words if a complainer did in fact consent in a charge under section 42 the offence would still be committed so the court here considered that there was a misdirection by the trial sheriff. In relation to the question of whether the evidence in respect of a charge, where consent is not relevant, can be used to corroborate evidence of another complainer in respect of a charge, where consent was a critical issue, the court considered that it can, the key issue being whether the evidence was capable of indicating a course of conduct systematically pursued by the accused. The court held that the misdirection given by the trial sheriff was a material one and resulted in a miscarriage of justice. The trial sheriff directed that the 3 elements of which proof was required to establish charges 1 and 2 required to be individually corroborated and in the direction that was given about consent being implied in relation to charge 5 the jury were given the impression that an element of evidence on which it was critical for the first complainer to be believed, namely lack of consent, was corroborated.