Scottish High Court of Justiciary Decisons

Act: Shead; The Barony Law Practice (for Gray & Kellas, Aberdeen)

Alt: Allan, AD; Crown Agent

23 July 2010

1. General

[1] On 6 March 2009, at the High Court in Aberdeen, the appellant was found guilty of a charge which libelled that:

"on an occasion between 1... and 31 May 2006... at 7 ... Aberdeenshire, you did assault [BL] ... then aged 4 years... and did put your private member in his mouth, pull down his pyjama bottoms...".

The libel had concluded with an averment of sodomy, but this had been deleted by the Advocate Depute at the close of the Crown case. On 17 April 2009, the appellant was sentenced to 30 months detention.

2. The Trial

[2] The address in the libel was that of the complainer, who was aged 4 at the time of the offence charged. The complainer lived with his mother EL and his brother WL, aged about 9. The appellant lived with his parents at number 6. He was employed as a care worker at a private nursery.

[3] The complainer gave evidence that he was assaulted in his bedroom when the appellant was babysitting. He was unable to give much detail of what had happened. He had been going to bed. He said that "Iain tried to hurt me... He put his toodlie (penis) in my mouth and bum". The appellant had been next to his bed. His brother had come into the bedroom with the complainer's dog. The dog had bitten the appellant and the complainer's brother had kicked the appellant. The complainer had felt sad and was crying. He had been wearing his Buzz Lightyear pyjamas, which had started to rip "because [the appellant] was pulling them". He said that they had come off. The complainer maintained that he had told his mother the next morning that the appellant had "hurted him".

[4] The complainer had later been interviewed jointly by the police and social worker and, he said, he had told them the truth about what had happened. He accepted that he had said to them: "My mouth was closed, so he couldn't do it to me, and Iain was tickling me on my tummy to get me to open my mouth"; "[W] said 'Stop it' and Iain stopped"; "I went 'Ow!' because it was sore" when the appellant had put his "toodlie" into his bottom; and his pyjama trousers "were starting to rip ... because Iain was pulling them". The complainer testified that the content of all of these statements was true.

[5] During cross-examination, the complainer stated that his brother had been digging a secret passage under the house. He had only started digging "yesterday", but had dug "100 miles under my bed" or had been digging for "100 days". He had used a long series of straws to enable him to breathe during this operation. When it was put to him that he did not have a secret passage, the complainer replied "I do".

[6] WL has Asperger's syndrome. He recalled being in the house with his brother, the dog and the appellant as babysitter. The complainer had gone to bed and he (WL) was playing with his Gameboy in the livingroom. The appellant had been watching television, also in the livingroom. The appellant had left the livingroom "six minutes" after the complainer had gone to bed. WL had heard the dog barking. The dog had been in the adjoining dining room. WL opened the door and the dog "just ran upstairs" to the complainer's bedroom. WL followed the dog into the bedroom. The appellant had been in the bedroom sitting on his brother's bed. His brother was in bed. The dog was growling and pulling at the bottom of the appellant's trouser leg. The appellant yelled, saying "let go" before leaving the bedroom and going downstairs.

[7] When he was referred to a statement given by him to the police and social worker, WL said that he had been telling the truth to them. He then said, in response to an open question, that the appellant had been "hurting" the complainer, which he knew because the complainer was yelling or crying out. He had heard this initially when he had been downstairs. He repeated that the appellant had been "hurting" the complainer but could not, or at least did not, elaborate on that. He had thrown teddies at the appellant. The complainer had been scared and crying when he reached him. He had calmed him down by giving him one of his "special teddies".

[8] According to the complainer's mother, she had been unaware of anything untoward happening until about April 2007. Before that, about two weeks after the babysitting, the complainer had mentioned a bogeyman coming into his bed and hurting him, but this had been dismissed as normal childlike behaviour. Much later, when she raised the prospect of the appellant babysitting again, WL had gone quiet and the complainer had said "no". When asked why not, WL said that they could not tell her but that nothing had happened. A few days later the complainer had asked her why men put "toodlies" in little boys' mouths and reported that the appellant had done this to him. The complainer's mother had noticed a change in the complainer's behaviour. His nursery had contacted her and had said that there were major problems with his conduct. He would not listen to the teachers and would not play with the other children. In hindsight, she realised that this had occurred only two or three weeks or so after the babysitting episode.

[9] The complainer's mother had remembered the particular evening when the appellant had babysat. When she had arrived home, the appellant had just said that everything was fine and left. The complainer was asleep, but WL had been awake, sitting in the middle of his room, having scattered all his toys about and dislodged their shelves. He did not want to talk to her. She had asked him why the complainer's teddies were on the stairs, but he would not answer. The complainer's mother also spoke to noticing, on the following morning, that some of the studs on the complainer's pyjamas had been torn; some studs being still fixed together but one side having become detached from the fabric. There was a tear in the crotch and one running down the seams of the legs. Although she first said in evidence that the pyjamas had a Thomas the Tank Engine motif, when shown her police statement the complainer's mother had changed that to a Toy Story motif, with Buzz Lightyear and other familiar characters.

[10] The appellant did not give evidence but, at the conclusion of the Crown case, a no-case-to-answer submission was made. This was that there was insufficient evidence of an indecent assault. The argument, under reference to Smith v Lees 1997 JC 73 and Fox v HM Advocate 1998 JC 94, was that neither WL nor the complainer's mother had provided sufficient corroboration of the complainer's account. The Advocate Depute countered by arguing that corroboration came from WL, who had said that the appellant had been hurting the complainer, and from the mother in relation to the pyjamas. Reference was made to Stirling v McFadyen 2000 SCCR 239, Chakal v Brown 2004 SCCR 451 and Ferguson v HM Advocate 2005 SCCR 603. The Trial Judge repelled the submission on the basis that he was not satisfied that the evidence was insufficient.

[11] In his charge to the jury, the Trial Judge reminded the jury that defence counsel had drawn to their attention to inconsistencies affecting credibility and reliability, which they ought to take into account. He reminded them that they could use a prior inconsistent statement to test credibility and reliability.

3. The Grounds of Appeal and Submissions

(a) APPELLANT

[12] The appellant's first ground of appeal was that the Trial Judge had erred in repelling the no case to answer submission. The ground narrates that there was no corroboration of the complainer's evidence that the appellant had put his private member into his mouth. It was accepted that this latter proposition, contained in the Note of Appeal, was not the submission which had been presented to the Trial Judge. The submission at the trial had been that there had been insufficient evidence to convict of indecent assault, the libel of which, it had been accepted, included the pulling down of the pyjama trousers. What was advanced in the Note hinged, in large measure, on the Advocate Depute's decision to withdraw the libel of sodomy.

[13] There were, it was said, two separate accusations in the libel (see Cordiner v HM Advocate 1991 SCCR 652); first, an indecent assault by putting the private member into the complainer's mouth; and, secondly, sodomy. The reference to the pulling down of the pyjama bottoms was just narrative relating to the sodomy. It was not an assault in itself. Since WL's evidence of the complainer crying out must have related to the sodomy element, since it came last temporally, it could not corroborate the earlier indecent assault. Since the mother's evidence of the tears in the trousers related also to the sodomy element, it too could not provide corroboration of the indecent assault. Evidence of the complainer's distress could not corroborate the events libelled (Smith v Lees (supra)). Irrespective of the nature of the actual submission made to him, the Trial Judge ought to have sustained the no case to answer submission on the basis now presented upon appeal. In any event he ought to have directed the jury to acquit. A miscarriage of justice had occurred.

[14] The second ground of appeal refers to the "adoption of prior statements" but what is complained of in particular is different. It is that the Trial Judge failed to give the jury "full" directions on how to deal with two contradictory parts of the complainer's mother's evidence concerning the motif on her son's pyjamas. It was said that the jury should have been directed that the only use which they could make of the prior inconsistent statement was in assessing credibility and reliability and not as proof of fact.

[15] The third ground of appeal is, in terms of the test for appeals under sub-section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 set out in AJE v HM Advocate 2002 JC 215, that no reasonable jury, properly directed, could have returned a guilty verdict. This focused first on the evidence of the complainer and an alleged contradiction whereby, although the complainer had said that the appellant had put his penis in his mouth, he had earlier said to the police that his mouth had been closed (supra). He had also given evidence about secret tunnels under his bed, which he insisted was true. Secondly, the complainer's mother's evidence had been confused, contradictory and untruthful. This related to what she had said the complainer had told her and also about behavioural changes after the babysitting by the appellant. Part of this ground was that the mother had said that she had reported these changes to a child psychiatrist at the time, but the psychiatrist had denied this, saying that the changes had only been reported to him in September 2007. However, it was accepted that the mother had not said that she had reported the changes at the time. Part of the ground alleged a further contradiction by the mother in relation to the complainer's bedwetting. But this was not insisted upon, since it appears that the contradiction stemmed from a misunderstanding between the examiner and the witness. But the mother had given contradictory evidence about the pyjamas and also about instances when she had left the complainer alone at home.

(b) THE RESPONDENT

[16] The Advocate Depute contended that the Court should take a strict approach to the terms of the first ground of appeal. The Trial Judge could not be criticised for rejecting the no case to answer submission made, on the basis presented to him. He had correctly held that there had not been insufficient evidence. In any event, although the trial Advocate Depute may have erred in withdrawing the libel of sodomy, what remained was a libel of indecent assault, including the pulling down of the trousers. There did not require to be "stand-alone" corroboration of the putting of the private member into the mouth (Grainger v HM Advocate 2005 SCCR 175, Lord Justice-Clerk (Gill), delivering the Opinion of the Court, at para [17]). There was sufficient corroboration of assault, which was what was required, from the brother's evidence of hearing cries, seeing the appellant in close proximity to the complainer in his bedroom and being aware that his brother was being "hurted", combined with the mother's evidence of the tears in the pyjama trousers.

[17] The trial judge had given adequate directions on the use to be made of prior statements. The matter complained of was one of detail, which had been fully ventilated before the jury. No specific direction on the point was necessary. The issue could be left to the jury's collective common sense.

[18] The Court should be slow to hold that the verdict of the jury was one which no reasonable jury could have arrived at. It should only reach such a conclusion if it were held that there was no possible basis upon which the jury could have rejected the matters presented to them as favouring the appellant's case. The complainer was only seven years of age when giving his evidence. He was testifying about events three years earlier, which had been disclosed two years previously. If his evidence had been confused and contradictory, then the jury would plainly have been able to form a view of the complainer's credibility and reliability through observing his demeanour, presentation and responses to questioning. He had given clear evidence of oral and anal penetration. He did not elaborate on what had happened. His police statement was put to him and he had recognised his narrative at the joint police and social work interview. But the quotation concerning his mouth being closed was a selective one. If children's evidence were to be dismissed because they believed in fantasy, that would be the end of Santa Claus. A jury would be able to work out when a child was talking about fantasy and when he was describing what had actually happened to him. Any inconsistencies in the mother's evidence formed no basis upon which it could be said that the jury's verdict was unreasonable. She had given accounts which could be regarded as different. That was the purpose of cross-examination. The case had been peculiarly suited to determination by a jury. The test for over-turning a jury's verdict, as set out in AJE v HM Advocate (supra), had not been met.

3. Decision

[19] The trial Advocate Depute elected only to ask the jury for a conviction of indecent assault by the appellant putting his private member into the complainer's mouth and pulling down his pyjama bottoms. The first issue for this Court, as advanced by the appellant at the hearing of the appeal, is whether there was sufficient evidence to merit such a conviction. The Court is content to proceed upon that basis even if the ground as stated in the Note of Appeal begins by posing a different question; whether the trial judge erred in repelling the submission of no case to answer.

[20] Indecent assault is not an independent sexual offence but an assault aggravated by indecency (Grainger v HM Advocate (supra) para [17]). Where assault alone is libelled, and that assault takes the form of different elements of attack as part of the same incident, there is no requirement for each individual element to be proved by corroborated evidence (see eg Campbell v Vannet 1998 SCCR 207, referred to in Grainger). Of course, where an additional crime, such as sodomy, is also libelled as part of the charge, that separate crime will require corroborated evidence, but that is not the issue in this case, given the Advocate Depute's decision to delete that part of the libel.

[21] The Court does not agree with the analysis presented by the appellant that pulling down of the trousers was simply narrative of a non-criminal act preparatory to the sodomy. A non-criminal act does not require any libel. The pulling down of the trousers was libelled as an element of the assault on the complainer, which included the appellant putting his private member into his mouth. What was required was corroboration of an assault on the complainer, and not corroboration of each of the two constituent elements separately.

[22] There was sufficient evidence to corroborate the testimony of the complainer that he was assaulted in the manner described by him. Indeed, there may well have been sufficient evidence to corroborate the sodomy element too. Be that as it may, the evidence of the complainer's brother was, of itself, enough to provide a sufficiency. It is important to note that the brother's testimony was not simply of distress occurring after an alleged incident, such as was found insufficient to amount to corroboration in Smith v Lees (supra). The brother was speaking to hearing and seeing what went on at the time when the crime was allegedly being committed; that is to the res gestae. His evidence commenced with the reference to the appellant going up to the complainer's bedroom shortly after the complainer had apparently retired to bed. It proceeds with a narrative of the actions of the dog, which are not insignificant, in hearing something which prompted it to go to the bedroom and actually attack the appellant. It continues with an account of the complainer yelling and crying over a period of time and to the proximity of the appellant to the complainer on the bed. It refers to the appellant in some way hurting the complainer. The jury would have been entitled to infer from the last passage alone that the witness had seen the appellant in some way assaulting the complainer, even though the witness was not able to elaborate on exactly what had occurred. This lack of elaboration is not entirely surprising given the nature of the alleged attack and the ages of the witnesses. Even without the evidence of the tearing of the trousers, the testimony of the brother was sufficient to provide the requisite strength to, and support and confirmation of, the complainer's account (Fox v HM Advocate (supra), Lord Justice General (Rodger) at 99).

[23] There was no adoption of statements in the testimony of the complainer's mother. It was not a question of the mother failing to remember something, but stating that the content of an earlier statement was true. Rather, the statement of the mother regarding the nature of the motif on the pyjamas was put to her and that had prompted her to change her position and to recall that the motif had indeed been of Toy Story and not Thomas the Tank Engine. In so far as her evidence was therefore, in one sense, inconsistent in this respect, the trial judge adequately directed the jury on taking such inconsistencies into account. There was certainly no need for a specific direction on this point. A general statement was more than adequate.

[24] In AJE v HM Advocate (supra at para [29] et seq), the Court was anxious to stress that, while it was not at liberty to disturb a jury's verdict simply because it disagreed with it, the issue of reasonable doubt did not remain within the jury's exclusive preserve. The Court has to decide whether it can say that, on any view, a verdict of guilty was one which no jury could reasonably have returned. The Court cannot say that in this case.

[25] There were many reasons why the jury might have regarded the evidence as unsatisfactory. The complainer was aged only seven and was speaking about an incident occurring when he was four. The main corroboration also came from a very young witness, who clearly had some difficulty expressing himself. The episode was not mentioned expressly by the complainer until a year later. All of this could have resulted in an acquittal verdict. It did not and, on reviewing the whole evidence, it is not difficult to see why that was so.

[26] Leaving aside what might be regarded as minor discrepancies in the testimony regarding, for example, the motif on the pyjamas, the simple account of the complainer does gain in strength when dovetailed with the brother's narrative and that of the mother describing the state of affairs on her return home and subsequently. There is a cohesion in the testimony which the Court can readily understand a jury accepting.

[27] Some of the detailed criticisms of the evidence presented under this ground of appeal were not insisted upon as they had turned out to be inaccurate. In so far as they remained, the Court does not consider that there was any contradiction between the complainer's testimony of the appellant putting his private member into his mouth and his remark to the police that he had his mouth closed. All the latter suggests is that the complainer at one point had his mouth closed. It does not carry with it an implication that this was the position at all times. Indeed, the subsequent reference to tickling points the other way. All normal children fantasise. That does not mean that they cannot be relied upon to tell the truth accurately when asked about what real people have done. A jury is particularly well placed, with all their collective experience of the behaviour of children, to distinguish between expressions of fantasy and narratives of fact. In so far as there were contradictions in the mother's testimony, or between her testimony and earlier police statements, these were not out of the ordinary. They were of a type which the Court would expect a jury to consider and determine whether they provided a reasonable doubt when deciding upon a verdict. Clearly the jury did not regard any of the inconsistencies as significant. They were entitled to take that view.

[28] The appeal against conviction must be refused.