William Wright v. Her Majesty’s Advocate [2019] HCJAC 55

Note of appeal against conviction and sentence:- On 13 August 2018, at Glasgow High Court, the appellant was convicted after trial of three charges:- (1) on various occasions between 1 August 1974 and 30 June 1976 at a school using lewd, indecent and libidinous practices and behaviour towards LM a girl above the age of 12 years and under the age of 16 years by placing his arms around her body and hugging her, tickling her, touching her breasts and pulling at her bra contrary to section 4(1) of the Criminal Law Amendment Act 1922; (2) on various occasions between 1 August 1977 and 2 November 1979 at the same school using lewd, indecent and libidinous practices and behaviour towards JP a girl above the age of 12 years and under the age of 16 years by poking her in the ribs, placing his arms around her body, pressing his clothed erect penis against her body, tickling her, placing his fingers inside her shirt, placing his hand inside her bra, touching and rubbing her breasts, seizing hold of her hand and placing it on his clothed erect penis contrary to section 5 of the Sexual Offences (Scotland) Act 1976; and (3) on various occasions between 3 November 1979 and 30 June 1981 at the same school indecently assaulting JP by doing various acts including inter alia on one occasion seizing hold of her arm and dragging her into a room, locking the door and pushing her to the ground, exposing his penis and penetrating her mouth with his penis. The appellant appealed against conviction on charge 3 but only to the extent of what was alleged to have occurred on the one occasion, namely, the incident alleging oral penetration. It was accepted on behalf of the appellant that there was corroboration of the remainder of charge 3. It was contended on behalf of the appellant that the trial judge misdirected the jury in relation to corroboration of the oral penetration. It was submitted on behalf of the appellant that the incident of oral penetration could not be viewed as an escalation of the course of conduct seen in charges 1-3, but rather was a separate offence and required corroboration. On behalf of the Crown it was submitted that there were a number of factors which allowed an inference of a course of conduct to be drawn:- (1) the appellant was in a position of responsibility as a music teacher; (2) the appellant knew both complainers’ mothers through music and were both concerned about disappointing their mothers if they disclosed the abuse; (3) the loci of the offences was the same; (4) generally the abuse occurred whilst both complainers were practicing piano; and (5) the conduct followed the same pattern from minor tickling to more overt sexual touching whilst the complainers were aged 13-15. It was conceded on behalf of the Crown that the conduct described in charge 3 had escalated significantly, however, that did not prevent the conduct as being viewed as part of the same course of conduct systematically pursued by the appellant. It was conceded on behalf of the appellant that there were striking similarities between the conduct described in charges 1-3, with the exception of the single occasion incident. Here the court refused the appeal. The court referred to the case of Jamal v HMA 2019 SCCR 135 and reiterated that the key issue is whether the evidence demonstrates a course of conduct systematically pursued by an accused. Having regard to the particular circumstances of the present case the court was satisfied that the oral penetration incident in charge 3 formed part of the same course of conduct perpetrated by the appellant against both complainers.