S.M. v. Her Majesty’s Advocate [2018] HCJAC 22

Note of appeal against conviction:- On 27 March 2017, at the High Court, the appellant was convicted after trial of a number of sexual offences committed against two boys:- (a) a charge of lewd, indecent and libidinous conduct and behaviour towards a neighbour, AG, when he was aged 11 to 14, which included handling the complainer’s penis (charge 1); (b) a charge of indecent assault on AG, when he was aged 14 to 18, which included handling the complainer’s penis; (c) a charge of lewd, indecent and libidinous conduct and behaviour towards his nephew, PM, when he was aged 10 to 14, which included handling the complainer’s penis and inducing him to perform oral sex on the appellant (charge 3); and (d) a charge of sodomy on PM, when he was aged 10 to 14 (charge 4). The appellant was sentenced to 8 years imprisonment. The appellant appealed against his conviction on two grounds, only one of which was argued at the appeal hearing, namely, that the trial judge erred in repelling a no case to answer submission made on behalf of the appellant at the close of the Crown case. It was submitted here on behalf of the appellant that whilst there were a number of similarities between the conduct described by both complainers there were a number of marked dissimilarities which, it was submitted, made the conduct so materially different that the doctrine of mutual corroboration should not apply. It was contended on behalf of the appellant that the conduct involved in charges 1 and 2 did not involve any penetration nor was there any attempted penetration or any element of the conduct described from which an intention to penetrate could be inferred. A further number of dissimilarities were pointed out on behalf of the appellant between the two complainers’ evidence including inter alia:- (1) AG was a neighbour and PM was a relative; (2) most incidents involving AG took place outside whereas in relation to PM these occurred inside; (3) AG was always cycling before the incidents whereas PM did not mention that; (4) AG referred to jokey elements to the conduct with no violence whereas PM referred to extreme violence being exhibited and threats being made; and (5) AG was given cigarettes and beer following the abuse whereas PM did not. It was submitted generally on behalf of the appellant that the conduct described were not component parts of a single course of criminal conduct systematically pursued by the appellant and the trial judge should have sustained the section 97 submission in relation to charge 4. On behalf of the Crown it was submitted that there was no rule of law that prevented evidence of a less serious charge corroborating evidence of a more serious charge, or evidence about non-penetrative conduct not being able to corroborate evidence of penetrative conduct. It was submitted that the conduct described had to be looked at as a whole. The different response by each of the complainers was also submitted to be relevant in that the escalation of conduct towards PM may have been partly due to him being unable to fend off the appellant whereas AG had at times been able to tell the appellant to stop. It was submitted on behalf of the Crown that the dissimilarities referred to on behalf of the appellant were superficial in nature and, when one looked at the conduct as a whole, there was a unity of purpose that allowed the inference to be drawn that these were component parts of a course of criminal conduct systematically pursued by the appellant including:- (1) both of the complainers were male; (2) both complainers were significantly younger than the appellant, AG was 7 years younger and PM 11 years younger; (3) the majority of the incidents described by both complainers took place in Port Glasgow; (4) both complainers described the appellant as conducting his relationships with them in a controlling manner; (5) there was a striking similarity in relation to how the relationships with each of the complainers began in that the first contact between the appellant and the complainer involved a violent act where the appellant hit the complainer and apologised shortly afterwards; (6) the appellant provided both complainers with treats; (7) the appellant showed pornography to both complainers; (8) the appellant took both complainers away on trips; (8) both the complainers referred to incidents of abuse taking place in the appellant’s home after the appellant’s mother had gone leaving them alone; and (9) the appellant told both complainers that they should not tell anyone. Here the court refused the appeal. The court considered that the trial judge was correct to repel the no case to answer submission. The court referred to Reynolds v HMA 1995 JC 142 and the process of evaluation that requires to take place in such a case between similarities in the conduct described on one hand and dissimilarities in the conduct described on the other. Only in a case where it could be said that on no possible view could it be said that there was any connection between the two offences would a submission in terms of section 97 of the 1995 Act succeed. In the present case the court considered that, looking at the case as a whole rather than the individual component parts of it, and the various similarities referred to, the jury were entitled to hold that there was a single course of conduct systematically being pursued by the appellant towards the two complainers.