Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 104

HCA/2015/000869/XC

Lady Paton

Lord Bracadale

Lord Turnbull

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

CHRISTOPHER BEUCKMANN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Keenan, Solicitor Advocate;  Capital Defence Lawyers, Edinburgh

for Fitzpatrick & Co, Glasgow

Respondent:  Alex Prentice QC AD;  Crown Agent

18 November 2015

Introduction

[1]        The appellant was charged with two breaches of a sexual offences prevention order (SOPO) imposed on 14 July 2014 at Paisley Sheriff Court.  In terms of that order the appellant was inter alia prohibited from –

“… having contact with any person under the age of 16 years save for inadvertent or unavoidable contact …”

Charge 1 libelled an approach to a young girl RC, aged 15, on 8 October 2014.  Charge 2 libelled an approach to a young girl NJ, aged 15, on 9 October 2014.

[2]        A jury trial took place before Sheriff Pender in Paisley Sheriff Court in February 2015.  Evidence was led from the two complainers.  The sheriff in his report records the evidence as follows:

“The first complainer, prior to the date libelled knew the Appellant.  They had met earlier in the summer of 2014.  She said in evidence that on the date libelled the Appellant had approached her in the street when she was with a friend and they had walked from the Cenotaph in the centre of Paisley to a local shop so that the complainer could purchase tobacco. 

In cross examination the complainer stated that at the time she was approached by the Appellant she had been smoking a cigarette and at an early stage in the conversation, about five minutes after he had approached her, he asked her what age she was.  She stated that when she told him she was 15 he said that he was not allowed to speak to people under 16 and he had walked away.

The following day the Appellant encountered the complainer in the second charge.  She said in evidence that the Appellant had been standing outside the doors of the Piazza Centre when she approached, that she had stopped only because he spoke to her and they had spoken to each other for about five to seven minutes.  She also had known him before the date of the offence.”

[3]        The appellant then gave evidence.  He admitted having contact with the complainers on the dates libelled, but explained that he had not known that they were aged under 16.  In relation to the second complainer NJ, he gave evidence that she had in fact approached him.  He had been standing outside the shopping centre.  The complainer was walking towards the shopping centre doorway in order to go into the centre.  She had stopped and spoken to him for some minutes.

[4]        The jury heard speeches and a charge.  At page 7 lines 8-13, page 10 line 19 to page 11 line 22, and page 12 line 8 et seq of his charge, the sheriff directed the jury as follows:

“[page 7] Now, by the law of Scotland an accused person cannot be convicted on the unsupported evidence of any one single witness, however credible and reliable.  There must be corroboration, that is, separate evidence, confirmation from some other independent source.

So two sources of evidence are required to prove the essential facts in each case, and the essential facts in this case are, firstly, has a crime been committed, and, secondly, is the accused the person who committed the crime, or crimes, of course, as we’re dealing with two charges.  That’s what must be corroborated.  These are the essential facts…

[page 10] … you will see from the charges that the accused only commits these offences if he has had contact with the girls without reasonable excuse.  Now, it’s not up to the Crown to establish if there is or if there is not a reasonable excuse;  that would be impossible [page 11] if you think about it.  The burden of establishing this falls on the accused.  This means that he has to satisfy you, on a balance of probabilities, that he has a reasonable excuse for having contact with these girls.

Now, you will note it is a lesser test, it’s not beyond reasonable doubt, but, balancing things up, you have to ask yourselves, is it probable that his explanation, which you heard from the witness box, is a reasonable excuse.

The duration of his contact, it seems to me, doesn’t matter, the question is whether or not he had contact, and if he had, did he have a reasonable excuse for having contact.

Now, evidence to support his position doesn’t need to be corroborated, and if you think he has proved that on a balance of probabilities, then you are obliged to acquit him.

…

[page 12] And while the accused has given evidence and admitted that there was some sort of contact with them, I still have to tell you what the legal position is, because here, there is only one single witness to each charge.

Sometimes crimes are committed, and, for various reasons, there is little or no eyewitness evidence.  In such cases, a special rule can apply.”

There followed standard directions on the Moorov doctrine.  At page 14 line 8 et seq, the sheriff further stated:

“Now, for [the Moorov doctrine] to apply, you have to believe the witnesses who speak to the individual charges.  If you don’t, there can be no corroboration.  So if you believe the complainer in the first charge, then you would have to find corroboration from a credible witness who speaks to the second charge.  If you do believe that witness, then you would have to decide if, by reason of the character, circumstances, place of commission and time of commission of each charge, the crimes are so closely linked that you can infer that the accused was pursuing a single course of crime.”

[5]        By majority verdicts, the jury found charge 1 not proven, and convicted the appellant of charge 2.  He was sentenced to 18 months detention and given a nine-month supervised release order. 

[6]        The appellant now appeals against both conviction and sentence.

Grounds of appeal

[7]        The grounds of appeal are as follows:

“1.  The jury were directed that in relation to each of the charges on the Indictment there was only one witness (see Sheriff’s Charge, page 11, line 23 to page 12, line 13).  In addition the jury were directed that they could only convict on the basis of the application of the doctrine of mutual corroboration if they believed both the complainers and found that the crimes were so closely linked in terms of time, character and circumstances that they could infer that the appellant was pursuing a single course of conduct (see Sheriff’s Charge, page 14, lines 8 to 21).  Accordingly, having regard to the very clear directions the jury were provided with in relation to this matter, the fact that they reached a verdict of acquittal in charge 1 inevitably meant that they were not entitled to convict the appellant in relation to charge 2 and accordingly the jury erred in convicting the appellant in relation to charge 2 and the conviction on that charge was a miscarriage of justice. 

2.  It is submitted that the imposition of a custodial sentence was excessive for the following reasons.  The conduct in charge 2 occurred over a very short period of time.  No distress was caused to the complainer in the charge and in her evidence she stated she was not alarmed or worried in any way in relation to the incident.  No suggestion was made that the appellant had acted in any way that would be regarded as inappropriate.  In addition, albeit with some reservations, the appellant was assessed as suitable to perform a Community Payback Order with a condition of unpaid work.

3.  Esto a custodial sentence is regarded as appropriate, it is submitted that the length of the sentence was excessive having regard to the factors referred to at ground of appeal 2 above.”

Submissions for the appellant

[8]        On the basis of the way the case had been dealt with in the sheriff’s charge, the jury had erred.  The sheriff made it clear that there was “only one single witness to each charge” (page 12 lines 5-7 of the charge).  That being so, it was necessary for the jury to accept the evidence of each complainer:  otherwise there could be no corroboration.  By acquitting of charge 1, and convicting of charge 2, the jury had demonstrated that they had not followed the sheriff’s directions.  Acquittal on charge 1 inevitably meant that they were not entitled to convict of charge 2.  No resort could be had to authorities such as Cannell v HM Advocate 2009 SCCR 207, or Laughlan v HM Advocate 2014 SLT 811, as the conduct relied upon as corroboration in those cases was criminal conduct, whereas in the present case the jury had specifically found the conduct in charge 1 not to be criminal conduct.   A conviction in relation to charge 2 was therefore a miscarriage of justice.  The conviction should be quashed. 

[9]        It was further submitted that the sentence imposed was excessive.  The appellant’s account of events was different from the complainer’s.  But even on the complainer’s account, the contact was of very limited duration.  There was no evidence of alarm, stress or upset.  There was no suggestion of inappropriate behaviour.  The appellant had not sought to continue the contact or to meet the complainer at another time.  The complainer had moved on.  Either custody was unnecessary, or a shorter period of custody should be imposed (with a reduced SRO).  While the appellant had served the full custodial part of the sentence, and while he was currently remanded in custody for a similar alleged breach, there were ongoing live issues about the orders relating to the appellant.  The appeal against sentence should therefore be granted.

Submissions for the Crown

[10]      The appeal against conviction should be refused.  The Crown had to prove two issues, namely (i) that the appellant was subject to a SOPO, which was a matter agreed in a joint minute;  and (ii) that there had been contact, without reasonable excuse, between the appellant and a child or children under the age of 16.  The evidence of the two complainers, taken at its highest, provided (on the hypothesis that the jury would consider that evidence suitable for the application of the Moorov doctrine) corroborated evidence of the second requirement.  There was, accordingly, a case to answer (contrast with Gonshaw v Bamber 2004 SCCR 696), and there had been no submission to the contrary at the close of the Crown case.  The appellant had then given evidence, during which he admitted that he had spoken to the complainers, with the caveat that he had not known that they were aged under 16, and also in the case of the second complainer NJ, that she had approached him.  Once the appellant had given evidence admitting contact with the complainers, it was open to the jury to find each charge proved without having to rely upon the Moorov doctrine, as there were two independent sources of evidence for each charge.  The jury were therefore fully entitled to find one charge proved, and the other not.  The sheriff’s direction at page 12 lines 8 - 13 of his charge was incorrect, as there were two independent sources of evidence in respect of each charge.  But there had been no miscarriage of justice, as the evidence entitled the jury to reach the verdict they did.

Discussion

Appeal against conviction

[11]      It is clear that there was a sufficiency of evidence at the close of the Crown case.  Taking the Crown evidence at its highest, each complainer described the appellant having a conversation with her for a relatively short period.  The circumstances of each conversation were suitable for the application of the Moorov doctrine (being so closely linked in character, circumstances, and time, as to give rise to an inference of a course of conduct systematically being pursued by the appellant).  Thus if the jury were minded to accept each complainer as credible and reliable, and were minded to apply the Moorov doctrine, there was a sufficiency of evidence entitling them to convict.  Quite correctly, therefore, the defence did not make a submission of no case to answer at the close of the Crown case.

[12]      The appellant then gave evidence.  He agreed that he had spoken to the complainers, but explained that he had not known that they were under 16.  In relation to the second complainer NJ, he also explained that it was she who had approached him in that she had stopped on her way into the shopping centre, exchanged a few words with him, and then gone on into the centre. 

[13]      It follows that, in respect of each charge, the question whether there was some contact or engagement between the appellant and the complainer was spoken to by two independent sources:  in charge 1, by the complainer RC and the appellant; and in charge 2, by the complainer NJ and the appellant.  The jury were therefore entitled to decide not to rely upon the Moorov doctrine, but simply to apply the basic rules of corroboration as explained by the sheriff at page 7 of his charge.

[14]      If the jury took that route, and found the prohibited contact proved by corroborated evidence on the basis outlined in paragraph [13] above, the only question remaining for them was whether, on a balance of probabilities, that contact had been shown to be inadvertent or whether the appellant had a reasonable excuse for his breach of the SOPO.  In the case of first complainer RC, she herself said in evidence that the appellant asked about her age and then, on hearing her answer, walked away, saying that he was not allowed to speak to people under 16.  That evidence supported the appellant’s own assertion that he had not known her age, and the jury were entitled to conclude that the appellant did not have the necessary mens rea for the offence libelled in charge 1.  However in the case of the second complainer NJ, the jury were entitled, on the evidence, to form a different view, and to convict of that charge.

[15]      In our opinion therefore the jury were entitled to return the verdicts challenged.  While there was an inaccurate direction at page 12 of the sheriff’s charge, we consider that the charge, read as a whole, gave the jury sufficient guidance to enable them to proceed as they did.  Even if it were to be suggested that the misdirection was material, we are not persuaded that any miscarriage of justice has occurred.  Accordingly we shall refuse the appeal against conviction.

Appeal against sentence

[16]      Breach of a SOPO is a serious matter, and the sheriff was right to treat the conviction on that basis, particularly bearing in mind the appellant’s apparent attitude in court (described by the sheriff in his report as a statement that he could not live his life with the order as his sole purpose).  Nevertheless we are persuaded by Mr Keenan’s submissions that the incident involving the second complainer did not merit the length of sentence imposed, for all the reasons he advanced.  We shall accordingly allow the appeal against sentence, quash the sentence of 18 months with a supervised release order of 9 months, and substitute therefor a custodial sentence of 12 months (back-dated as before) with a supervised release order of 6 months.