Appellant: C M Mitchell, Advocate; Paterson Bell, Edinburgh

Respondent: Wade, AD; Crown Agent

13 November 2012

[1] At the outset, we should deal with question 2 which, of consent, should be answered in the affirmative. In relation to question 1, the Court answers that question in the affirmative also, for the following reasons. First, actus reus: the sheriff was entitled to hold that the actions of the appellant as described by JC in relation to charge 1 were corroborated by the actions of the appellant described by A B in relation to charge 5. The actions described were so related in time, character and circumstances as to permit the sheriff to apply the Moorov doctrine, and to find that one corroborated the other. As the sheriff pointed out in her note at page 24 of the stated case, A B had consented only to a professional massage; she had not consented to being touched in a sexual way.

[2] The sheriff explains the similarities in the appellant's behaviour at pages 23-24 of the stated case as follows:

"Neither complainer had experienced a massage before and it would be fair to say that neither was entirely sure about what to expect of the process. Both girls had made applications for employment in the gym of which the appellant was a co-owner. He had offered a massage to each of them and told them he would give them some tips about the job/interview process. Both were keen to find employment, both were clearly uncomfortable and distressed by their experience as was evidenced by their rush to leave the massage room at the end of the massage and by the words used by each in the course of their evidence to describe how each felt when the appellant was touching their breasts. [A B] had been massaged by two others subsequent to 15 June 2011 and the experience had been quite different".

A clearer example of evidence appropriate for the Moorov doctrine would be difficult to find.

[3] Moving on to mens rea: the sheriff's stated case describes behaviour which has all the hallmarks of planned, pre-meditated and calculated behaviour designed to give the appellant access to, and to touch and fondle in a sexual way, young females. The subterfuge used was an offer to an inexperienced young woman of an apparently professional massage but with the added element of the incentive about getting a job: cf the circumstances in Bain v HMA 22 November 2011.

[4] In our view, the necessary mens rea is clearly inferred from the fact that the appellant managed to achieve the removal of clothes, the touching of parts of the body not normally touched in a professional massage, (for example the upper inner thigh, breasts and stomach), the incentive of employment being held out, the postures which the complainers had to adopt, (one being for example on all fours) and both finding that the concealing towel, protecting their privacy, was disturbed and removed.

[5] This sort of behaviour was in sharp contrast to the evidence given by A J about what constitutes a proper professional massage. The inevitable inference from all the factors listed by the sheriff is one of deliberate sexual gratification. In our view the sheriff's stated case makes that quite clear. Accordingly in relation to question 1, we answer in the affirmative so far as charges 1 and 5 are concerned.

[6] As for charge 6, in our opinion A B's evidence was corroborated by strong circumstantial evidence. We agree with the advocate depute that it was the gist of what was said that had to be corroborated. In fact the essence of the charge was an indecent proposal.

[7] Supporting the complainer's evidence was for example Crown witness S P who saw A B prior to the incident and described her as "fine; she was happy with how her run had gone". At about that time S P noticed the appellant in the car park. S P went home but was summoned back by a telephone call. She then found A B to be "upset, frightened and nervous, totally different" to what she had been when the witness had seen her a short time earlier on after her run. S P in addition heard a de recenti statement from A B which enhanced the latter's credibility and reliability and in fact led S P to challenge the appellant, who thereupon acknowledged to her that there may have been a misunderstanding, and that he would sort it out.

[8] Further circumstantial evidence came from K G, who also saw A B in a very distressed state, so much so that it was K G who summoned S P. Yet more circumstantial evidence came from the appellant himself. During a police interview, he agreed that two appointments in the gym diary for the massage of A B were made in his own handwriting; that he had had a conversation with A B in the car park which involved talking about money; that the figure of £50 had been mentioned, although he denied offering her £50 in exchange for a massage; that he had said something to the effect that giving A B a massage would be a "treat" for him; that he had also said something to the effect that he was making the running and that the two appointments had been cancelled by A B suggested that she did not wish to have a massage. A further strand of evidence which the sheriff was entitled to take into account was the appellant's modus operandi in relation to young female employees at the gym, as found proved by corroborated evidence in respect of charges 1 and 5.

[9] In the result therefore, in respect of charge 6, we have no hesitation in answering question 1, in the affirmative.

[10] We turn now to question 3. Each complainer consented, in our view, to a professional massage. The correct approach to and the strict limits of such a massage were clearly outlined by Crown witness A J, and also incidentally by defence witness B C, whose evidence can be looked at when the issue is not a "no case to answer" submission.

[11] From the evidence noted by the sheriff in the stated case, what occurred with each complainer was not such a massage, and the question of consent then has to be viewed in the context of circumstances similar to Hussain v Houston 1995 SLT 1060. Accordingly again we answer question 3 in the affirmative.

[12] For all the reasons given the appeal is refused.

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