P.G. v. Her Majesty’s Advocate [2016] HCJAC 72

Note of appeal against conviction:- The appellant was convicted after trial at the sheriff court of inter alia a contravention of section 31 of the Sexual Offences (Scotland) Act 2009 whereby the appellant, an adult, had intentionally caused AB, a child between the ages of 13 and 16, to participate in sexual activity in that he caused her to expose her naked vagina, photograph it and send these images to him, and requested her to video herself fondling her vagina and send that to him (charge 5). The appellant was sentenced to 15 months imprisonment on that charge. The appellant appealed against his conviction on that charge on the basis that there was no corroboration of it and the sheriff had erred in refusing to uphold a ‘no case to answer’ submission made on behalf of the appellant at the close of the Crown case. The appellant faced other charges on the indictment including inter alia a charge of sexual assault on a complainer, CD, aged between 13 and 16 which was found by the jury to be not proven. Charge 6, a further charge of a contravention of section 31 in respect of CD, was withdrawn by the Crown prior to the closing of the Crown case. At the trial the complainer AB gave evidence in support of charge 5. CD gave evidence that the appellant had not asked her directly but had requested the photographs through AB and that she had been paid £4 by the appellant for them. It was submitted on behalf of the appellant that the evidence of CD having been considered insufficient to establish charge 6 could not corroborate the evidence of AB as to charge 5. On behalf of the Crown it was submitted that the evidence of CD remained available in support of charge 5 notwithstanding the fact that the Crown had withdrawn charge 6. Here the court refused the appeal and considered that the trial sheriff had been correct to repel the ‘no case to answer’ submission. The court stated that the issue at the appeal was not the application of the doctrine of mutual corroboration, nor was it the fact that there was insufficient evidence in relation to charge 6, the question was whether there was corroboration of the complainer’s evidence in relation to charge 5. The court concluded that AB’s evidence that she had been asked to send and then did send the appellant photographs of her vagina to the appellant, and that similar photographs were sent of CD to the appellant together with other adminicles of evidence which the court highlighted amounted to a sufficiency of evidence in relation to charge 5.