Piotr Valdermar Rysmanowski v. Her Majesty’s Advocate [2019] HCJAC 88

Note of appeal against conviction:- On 16 August 2018, at Dumfries Sheriff Court, the appellant was convicted after trial of a charge of sexually assaulting a child (RS) under the age of 13 contrary to section 20 of the Sexual Offences (Scotland) Act 2009 in that he did:- “…(a) induce her to remove her clothing, handle and lick her genitals, touch her chest; (b) remove your trousers and induce her to put her hand on your penis and masturbate you; and (c) on one occasion handle her buttocks over her clothing…”. In addition, the appellant was also convicted of a breach of a bail condition not to contact or to communicate with RS. On 3 October 2018 the appellant was sentenced to 2 years imprisonment in relation to the sexual assault charge and 4 months imprisonment in relation to the breach of bail, which sentences were to be consecutive with each other. The appellant appealed against his conviction. The ground of appeal contended that the complainer in her evidence had described 3 separate incidents with only the last one being corroborated and, having regard to Spinks v Harrower 2018 JC 177, there was insufficient evidence in relation to heads (a) and (b) of the charge. At the appeal hearing the ground of appeal was departed from and a ground which had not passed the sift was pursued, namely, that the trial sheriff had failed to provide the jury with an appropriate route to verdict when there was an omnibus charge and direct corroboration of only one of the elements and that route would have been open only if the jury applied the principle of mutual corroboration, however, no directions had been given by the trial sheriff on the doctrine of mutual corroboration. It was submitted that whilst the sheriff had reported to the court that he viewed the incidents as a single course of conduct he had not given the jury directions on that basis. On behalf of the Crown it was submitted that the appeal should be refused. In the first instance it should be refused as the ground of appeal now sought to be argued by the appellant had been refused at the sift. It was further submitted on behalf of the Crown that there was sufficient evidence for the entire charge. It was submitted that the conduct described took place towards a 12 year old girl in the family home over a period of 19 days and it was competent to libel a single crime in a single omnibus charge. Further, the complainer’s evidence regarding the conduct could be corroborated, as here, by an independent source (the mother in this case) speaking to one or more of the sexual assaults. It was further submitted on behalf of the Crown that what amounted to a single episode of sexual assault was a question of fact and degree and in the present case the conduct described took place over 19 days when the complainer was in the sole care of the appellant for lengthy periods within that time frame and whilst the jury were not directed on that basis, no miscarriage of justice had occurred. It was further submitted on behalf of the Crown that if the incidents were separate as they shared conventional similarities in time, place and character, a sufficiency could be provided by the application of the doctrine of mutual corroboration. Here the court allowed the note of appeal to be amended to introduce the new ground as the court considered it to be a development of the original ground which had passed the sift and a supplementary report from the sheriff was unnecessary. The court observed that this is an area of the law which is continuing to cause difficulties in practice. The court observed that how the Crown decides to frame a charge involving young children has no bearing on the requirement that each crime be separately corroborated, regardless of whether they are part of a course of conduct. In addition, the court observed that the requirement for corroboration may be satisfied by the application of the doctrine of mutual corroboration. In the present case it was clear that the incidents, on different days, were separate criminal acts and corroboration could not be provided in the same way as in a single assault, comprising of different elements, occurring at or about the same time or as part of an uninterrupted incident. The court confirmed that the mother’s evidence in relation to the final incident could be used to corroborate the earlier incidents spoken to by the complainer provided the jury considered that each episode was a component part in a single course of conduct persistently pursued by the appellant. The court allowed the appeal on the basis that the trial sheriff failed to give the jury directions on how they could convict the appellant of the three heads of the charge.There were no directions given on the principle of mutual corroboration to allow them to find the whole charge proved. The jury were directed that they should approach the charge on the basis that it constituted a single crime in which the separate episodes did not all require to be corroborated.  As such the court considered the misdirection was material and heads (a) and (b) of the charge were quashed. The court reiterated that the principle of mutual corroboration can apply to the evidence of a single complainer who speaks to separate offences against her, provided there is a separate witness who speaks to one or more of those offences and the whole series constitutes a course of conduct. In light of the court allowing the appeal, the sentence of 2 years imprisonment was quashed and a sentence of 8 months substituted.