P.M. v. Her Majesty’s Advocate [2017] HCJAC 90

Note of appeal against conviction:- The appellant was convicted after trial on indictment at Glasgow High Court of the following charge:- “On various occasions between 1 January 2014 and 15 April 2015… you did sexually assault [C] ...a child [under] the age of 13 years, in that you did induce her to touch and masturbate your penis, apply cream to her vagina and anus and you did sexually penetrate her vagina and anus with your finger, to her injury, and you did induce her to suck your penis and you did penetrate her mouth with your penis and you did thus rape her” contrary to sections 18, 19 and 20 of the Sexual Offences (Scotland) Act 2009. The appellant gave evidence at his trial. At the conclusion of the defence case counsel for the appellant made a submission in terms of section 97A of 1995 Act that there was no corroborated evidence to entitle the jury to convict the appellant of the parts of the charge which related to contraventions of sections 18 and 20. No such submission was made in relation to the alleged contravention of section 19. The trial judge repelled the submission and he was subsequently convicted of the charge as libelled. Following the obtaining of a Criminal Justice Social Work Report the appellant received an extended sentence of 10 years comprising of a custodial term of 8 years and an extension period of 2 years in terms of section 210A of the 1995 Act. The appellant appealed against his conviction on 4 grounds, albeit only three of those were insisted up:- (1) the trial judge erred in repelling the submission in terms of section 97A in respect of sections 18 and 20 of the 2009 Act in that there was insufficient evidence to corroborate the evidence of the complainer in respect of both of the commission of the crime and the identification of the appellant as the perpetrator; (2) despite no submission being made in relation to the section 19 aspect of the charge at the trial, it was now contended that there was insufficient evidence to corroborate the account of the complainer identifying the appellant as the perpetrator of this offence; and (3) the trial judge erred in directing the jury that they could take account of the complainer’s behaviour and gestures during the joint investigative interview as corroborative of her account and that misdirection resulted in a miscarriage of justice. On behalf of the appellant it was submitted that there was no corroboration of the complainer’s account of penetration of the complainer’s mouth (section 18). It was further submitted that in relation to the allegation of the appellant inducing the complainer to touch and masturbate his penis there was no corroboration of the complainer’s account. In addition, there was no corroboration of the identification of the appellant in relation to sections 18 and 20. In relation to the gestures made by the complainer during the course of her Joint Investigative Interview it was submitted that in directing the jury that gestures spoken to by other witnesses could be regarded as independent evidence was a material misdirection. In relation to ground of appeal 2 it was submitted that in relation to the section 19 aspect of the charge there was insufficient evidence to corroborate the complainer’s evidence that the appellant was responsible. On behalf of the Crown it was submitted that corroboration of the complainer’s account could be found in various facts and circumstances including:- (1) the complainer was able to accurately describe lesions on the appellant’s penis that would only be visible when the appellant had an erection and she also said his penis was hard like bones; and (2) a clinical and forensic psychologist, Dr John Marshall, gave evidence that a child of the complainer’s age would normally have no knowledge of sexual matters and learned behaviour results from behaviour which children have observed or been instructed in. In relation to the question of identification it was submitted on behalf of the Crown that where there is a positive identification very little else is required to corroborate it and in the present case the following facts and circumstances were pointed to which were capable of corroborating the complainer’s identification of the appellant:- (1) the appellant lived in the same household as the complainer and her mother and there was no suggestion that any other adult male had the opportunity; (2) the evidence placed the appellant as the only person who had the opportunity to commit the offences on 15 April 2015; and (3) the appellant had genital herpes on 15 April 2015 which supported the complainer’s account that it was the appellant who was responsible. Here the court refused the appeal. In relation to the question of whether there was corroboration of the complainer’s account that it was the appellant who was responsible the court noted that the complainer gave details of the conduct in graphic detail at the JII and that it was the appellant, her daddy as she called him, who was responsible. It was further noted that very little else was required to corroborate that emphatic identification (Ralston v. H.M.A. 1987 SCCR 467). The court noted that the appellant was the only adult male who lived in the family home where she said the abuse took place. In addition there was the graphic description given by the complainer of lesions on the appellant’s penis which would be seen if the appellant had an erection. In relation to the contention that there was insufficient evidence of the commission of the offences under sections 18 and 20 of the 2009 Act  the court considered that there was a body of circumstantial evidence to support the complainer’s account including:- (1) the gestures given by the complainer in her JII were indicative of knowledge of sexual matters which would not be expected of a girl of the age of this complainer spoken to by Dr Marshall; (2) the lesions on the appellant’s penis; and (3) reference to blue coloured lubricant. In relation to the criticisms of the trial judge’s directions in relation to what the jury could make of the gestures of the complainer at her JII the court made no criticism of the directions given. In light of the evidence of Dr Marshall the court considered that it would make no sense for the jury to take no account of the unchallenged evidence of the significance of a very young girl being able to make such graphic descriptions and give such gestures. The court went on to say that even if it did amount to a misdirection it did not result in a miscarriage of justice in light of the remainder of the charge where the jury were repeatedly advised by the trial judge that they could not convict the appellant on the basis of a single source of evidence.