G.S v. His Majesty’s Advocate [2023] HCJAC 35

Note of appeal against conviction:- In November 2022, following a trial on indictment at the sheriff court, the appellant was convicted of two charges:- (a) charge 1 lewd, indecent and libidinous practices and behaviour towards his daughter LS on various occasions between 2004 and 2010 by licking her vagina and repeatedly touching her on the vagina under her clothing; and (b) charge 3 a contravention of section 3 of the Sexual Offences (Scotland) Act 2009 on a single occasion between 18 May 2014 and 17 May 2015 towards the complainer LH by touching her and repeatedly attempting to kiss her. The appellant was acquitted of charge 2 which was alleged to have taken place at the same address as charge 3 involving a different complainer, JG, on an occasion between February 2014 and February 2015. On 13 January 2023, following the obtaining of a Criminal Justice Social Work Report, the trial sheriff sentenced the appellant to a cumulative sentence of 27 months imprisonment. The appellant appealed against his conviction it being contended that there was no proper basis on which the jury were entitled to hold that the evidence led in relation to charges 1 and 3 were mutually corroborative, that the sheriff should have directed them in that way and failure to do so had resulted in a miscarriage of justice. It was submitted on behalf of the appellant that the nature of what the complainers were describing was so different that it could not on any possible view be said that they were component parts of one course of conduct systematically pursued by the appellant. There were a number of differences in the alleged conduct:- (1) there was a significant difference between the ages of the two complainers, LS was aged between 5 and 11 (a pre-pubescent child) and LH was a young adult aged 16; (2) LS was the appellant’s daughter and LH was not related to him; and (3) the conduct described by the two complainers was significantly different there being no similarity between the sexual or physical contact. On behalf of the Crown it was submitted there were present a number of similarities:- (1) the complainers were both young females; (2) they were members of the same friendship circle; (3) there was a significant age gap between the ages of the complainers and the appellant with the appellant being more than 25 years older than each of the complainers; (4) all of the conduct in charges 1 and 3 occurred at the appellant’s home; (5) LS’s evidence was that the appellant was drunk when the abuse in her bedroom occurred and LH’s evidence was that the appellant had been drinking at the time he conducted himself as described in charge 3; (6) the appellant was in a position of trust for each complainer at the material times; and (7) the appellant intruded on the privacy of both complainers at the material times. Here the court reiterated, under reference to Donegan v HMA 2019 JC 81, that it is only where it is impossible to say on the evidence that the individual incidents were component parts of a single course of conduct persistently pursued that there will be an insufficiency of evidence as a matter of law. The court considered that the sheriff recognised that the issue for him was whether on no possible view of the evidence could it be said that the respective accounts of LS and LH constituted component parts of a single course of criminal conduct systematically pursued, that it was a high test and that the evidence led was sufficient for the jury to be allowed to use the doctrine of mutual corroboration in respect of charges 1 and 3 even if they were not satisfied of the appellant’s guilt in relation to charge 2. The court here outlined all of the similarities and dissimilarities of the conduct described by LS and LH and concluded that there was sufficient evidence for the jury to convict the appellant of charges 1 and 3 by applying the doctrine of mutual corroboration between the evidence led in support of those two charges.