Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 58

HCA2015-004202XC

Lord Brodie

Lord Bracadale

Lord Turnbull

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST CONVICTION

by

CONNOR TAIT

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  C Fyffe, Solicitor Advocate;  Paterson Bell Ltd (for Bruce Short, Solicitors, Dundee)

Respondent:  Harper, AD;  Crown Agent

16 July 2015

Introduction
[1]        On 11 November 2013, at Dundee Sheriff Court, after a trial lasting four days, the appellant was found guilty by the unanimous verdict of the jury in respect of the only charge on the indictment which was in the following terms:

“(001)  on 4^th July 2013 at the grass area between [specified streets] in Dundee you CONNOR TAIT did sexually assault [the complainer] care of Police Service Scotland, Dundee, a child who had not attained the age of 13 years in that you did take hold of his body by placing both your arms around his chest, pull him towards you, place your hand under his clothing and into his pants, pull him towards the ground, all to his injury and you did intentionally or recklessly sexually touch him in that you did sexually penetrate his anus with your fingers CONTRARY to Section 20 of the Sexual Offences (Scotland) Act 2009;   you CONNOR TAIT did commit this offence while on bail, having been granted bail on 10^th May 2013 at Dundee Sheriff Court.”

[2]        The charge of which the appellant was found guilty had been amended.  It had originally alleged contravention of both section 19 and section 20 of the 2009 Act.  However, although no submission of no case to answer was made at the close of the Crown case, after the appellant had given evidence, a submission was made on his behalf in terms of section 97A of the Criminal Procedure (Scotland) Act, and at common law, to the effect that there had been no corroboration of two of the essential elements in the charge namely the putting of a hand under the complainer’s clothing and the penetration of his anus with the appellant’s fingers.  The sheriff upheld the section 97A submission to the extent of holding there had been insufficient evidence in law to justify the appellant being convicted of a contravention of section 19 of the 2009 Act.  The sheriff accordingly allowed the prosecutor to amend the indictment by deleting the reference to section 19 and by inserting the words “intentionally or recklessly sexually touch him, in that” after the word “and” at line 7 of the charge.

[3]        The appellant now appeals against conviction.  Leave has been granted in relation to three grounds (numbered 1(a), 1(b) and 3), but only two of these are insisted upon, grounds 1(a) and 1(b).  They are in these terms:

“1(a)    There was insufficient evidence of a sexual assault on a young child contrary to section 20 of the 2009 Act;

1(b)      Esto there was a sufficiency of evidence, there was no corroboration of penetration of the anus of the complainer and this part of the libel ought to have been deleted.”

The legislation
[4]        Sections 19 and 20 of the Sexual Offences (Scotland) Act 2009 provide as follows:

“19       Sexual assault on a young child by penetration

(1)        If a person (“A”), with any part of A’s body or anything else, penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus of a child (“B”) who has not attained the age of 13 years, then A commits an offence, to be known as the offence of sexual assault on a young child by penetration.

(2)        Without prejudice to the generality of subsection (1), the reference in that subsection to penetration with any part of A’s body is to be construed as including a reference to penetration with A’s penis.

20        Sexual assault on a young child

(1)        If a person (“A) does any of the things mentioned in subsection (2) (“B” being in each case a child who has not attained the age of 13 years), then A commits an offence, to be known as the offence of sexual assault on a young child.

(2)        Those things are, that A-

(a)        penetrates sexually, by any means and to any extent, either intending
to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,

(b)        intentionally or recklessly touches B sexually,

(c)        engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,

(d)        intentionally or recklessly ejaculates semen onto B,

(e)        intentionally or recklessly emits urine or saliva onto B.

(3)        Without prejudice to the generality of paragraph (a) of subsection (2) the reference in the paragraph to penetration by any means is to be construed as including a reference to penetration with A’s penis.”

Evidence led on behalf of the Crown
[5]        The evidence pertinent to the present appeal was given by two eye-witnesses, the complainer, and his friend, X. The appellant was 20 years of age at the time of the offence and the complainer and X were 11 and 13 years of age respectively. The complainer’s parents gave evidence that the complainer was distressed shortly after the incident.

The complainer

[6]        On 4 July 2013 the complainer had been at football training with X. They made their way to their respective homes by taking a path between two sets of houses, the route of which was primarily between the back of each set of houses. They crossed over an open grassy area before beginning to approach a lane at the back of a local primary school. The complainer stated that he first noticed the appellant earlier at a fish and chip shop and described the appellant following him and his friend some distance, about 20 to 25 feet, behind them. The complainer described the appellant as very strange looking – he had coloured hair, earrings and wore eye-liner. The complainer stated that the appellant had walked past him and X as they crossed the grass. The appellant had emerged from bushes, approached the complainer and X and engaged them in conversation. The appellant then grabbed the complainer from behind and pulled the complainer towards himself, put his hands in the complainer’s tracksuit bottoms and inserted two fingers into the complainer’s anus.  X had ran off and the complainer managed to punch the appellant in the face, broke free and ran off himself.  X did not stop running until the complainer caught up with him.

X
[7]        X’s  evidence was consistent with the complainer’s up to the point where X started running.   X stated that he heard the complainer shouting “help”, and he intended to run to the complainer’s house to get help.  About halfway towards the complainer’s house, the complainer caught up with X.  X described the complainer as being held by the appellant from behind with one arm across his chest and the other across his stomach pulling the complainer to his knees.  He then stated that “except that that bit was kind of pointing out”, and then he physically demonstrated what came to be described as a “pelvic thrust” in which the appellant’s groin made contact with the complainer’s backside.  X did not see any penetrative act.

The sheriff’s reasoning in respect of the section 97A submission

[8]        Albeit he had changed his mind by the time he prepared his report to this court, at the time he determined the section 97A submission, the sheriff accepted that there was no corroboration of the complainer’s account of having been digitally penetrated.  There was therefore an insufficiency of evidence for a conviction in respect of contravention of section 19 of the Act.  On deletion of the reference to section 19, what was charged was the offence of sexual assault on a young child in contravention of section 20 of the Act.  The sheriff reasoned that that offence may be committed by the intentional or reckless sexual touching of a child who has not reached the age of 13 years.  The complainer in the present case had spoken to sexual touching by penetration and the witness X had spoken to sexual touching by the appellant thrusting his pelvis against the complainer’s backside.  Either of the acts spoken of would constitute sexual touching and accordingly, in the opinion of the sheriff, on the basis of the evidence of the two boys there was a sufficiency of evidence for a conviction of contravention of section 20 on a libel which included the allegation of placing a hand under the complainer’s clothing and digitally penetrating his anus. 

[9]        Consistent with this analysis, when he came to direct the jury, the sheriff indicated that it could find corroboration of the complainer’s account in what had been spoken to by X (charge pages 24 to 26). 

Submissions
Appellant
[10]      Mr Fyffe, on behalf of the appellant, adopted his written case and argument.  In summary his submission was that the terms of section 20 of the 2009 Act required that for an accused to be convicted of the offence of sexual assault on a young child, the Crown must prove that (i) the complainer was aged under 13, (ii) one or other of the things specified in paragraphs (a) to (e) of section 20(2) was done and (iii) the accused was the perpetrator.  Each of these three elements had to be established by corroborated evidence.  Thus, in the present case, the Crown required to prove by corroborated evidence that (1) the appellant had digitally penetrated the complainer’s anus or (2) he had intentionally or recklessly touched the complainer sexually.  There was, however, no corroboration of the complainer’s evidence that the appellant had placed his hand under his clothing and that he was digitally penetrated.  The sheriff accepted as much in respect of penetration in ruling as he did on the sufficiency of the evidence of contravention of section 19.  As far as the allegation of reckless or intentional sexual touching was concerned, the jury was directed that X’s account provided the necessary corroboration.  While X’s account of the “pelvic thrust” would be evidence of sexual touching as provided by section 20(2)(b) or possibly another form of sexual activity as provided by section 20(2)(c), that was not the sexual touching libelled.  Thus, while the evidence of X might confirm or support the complainer’s allegation that he had been grabbed from behind, thereby justifying conviction of common law assault, there was no evidence to confirm or support the evidence of the complainer that the appellant had placed his hand under the complainer’s clothing and penetrated his anus.  Accordingly, if it was with him in relation to ground 1(a), Mr Fyffe invited the court to quash the conviction and substitute a conviction for common law assault.

[11]      Alternatively, and in terms of ground of appeal 1(b), Mr Fyffe argued that if there had been sufficient evidence to justify a conviction of a contravention of section 20 of the 2009 Act, there had nevertheless not been sufficient evidence of penetration of the anus and this should have been deleted from the charge.  There was an overlap as between sections 19 and 20 of the 2009 Act in that an act of sexual penetration constitutes an offence under either section.  The overlap did not mean that whereas an act of penetration required to be corroborated for the purposes of section 19 it did not require to be corroborated for the purposes of section 20.  Contrary to the sheriff’s directions, the allegation of digital penetration of the complainer’s anus required corroboration if that was to be the basis or part of the basis for conviction of contravention of section 20.  The jury should have been directed that it could not convict in terms which included the libel of digital penetration and, that direction not having been given, a miscarriage of justice had occurred. 

Respondent
[12]      A written case and argument had been lodged on behalf of the Crown but the advocate depute disavowed any reliance upon it and expressly did not adopt it.  Rather, the advocate depute argued that while the indictment may not have been very elegantly drafted, it fairly put before the jury an allegation of a sexual assault on a young child in contravention of section 20 of the 2009 Act.  What was libelled fell into two parts.  The first part:  “you did take hold of his body by placing both of your arms around his chest, pull him towards you, place your hand under his clothing and into his pants, pull him towards the ground, all to his injury”, constituted a sexual assault in terms of either paragraph (b) or (c) of section 20(2).  The libel “you did intentionally or recklessly sexually touch him in that you did sexually penetrate his anus with your fingers” met the requirements of paragraphs (a) and (b).  What the Crown had to prove by corroborated evidence was (i) the fact that the complainer had not attained the age of 13 years, (ii) that the accused was the perpetrator and (iii) any of the things mentioned in section 20(2).  Here the age of the complainer and the identity of the perpetrator were established and that is not disputed.  As to the occurrence of any of the things mentioned in section 20(2), the complainer had spoken to the whole of the libel and that account had been sufficiently corroborated by X who had spoken to the complainer being held from behind with one of the appellant’s arms across his chest, the other across his shoulder and the complainer having been pulled onto the appellant’s knees.  He also spoke to a pelvic thrust making contact with the complainer’s backside.  There was therefore clearly corroboration of an assault with a sexual element.  Enactment of the 2009 Act had not altered the law of evidence.  It was not necessary for every particular libelled to be corroborated in order for there to be a conviction of assault:  Campbell v Vannet 1998 SCCR 207 at 209, Stirling v McFadyen 2000 SCCR 239 at 240 and Chakal v Brown 2004 SCCR 541 at 543.  In the present case deletion of the allegation of penetration was not appropriate.  To delete the averment of penetration “would send a message” that every element in an alleged sexual assault required to be corroborated.  That is not the approach which had been taken by the Crown in the past or indeed by the court.  A narrative does not require corroboration.  In the present case the evidence of the complainer could be corroborated by the evidence of what was clearly a sexual assault as spoken to by X.  The appeal should accordingly be refused.

Decision
[13]      As the law of Scotland presently stands, in any prosecution, unless he is specifically relieved of this burden by way of a statutory provision, conviction is dependent on the prosecutor establishing two facts by corroborated evidence.  These facts are, first, that the offence charged was committed and, second, that it was the accused who committed it.  They are variously described as the essential facts, the crucial facts, the facts in issue or, for those who prefer the use of Latin, the facta probanda.

[14]      It follows that if the existence of a particular fact is necessary to constitute the offence charged then that fact is an essential fact.  It is part of the prosecutor’s probandum (that which must be proved) and therefore it requires to be established by corroborated evidence.

[15]      In the present case what the Crown put to the jury was an allegation of contravention of section 20 of the 2009 Act.  The indictment had originally also contained an allegation of contravention of section 19 of the Act.  That section provides for the offence of sexual assault on a young child by penetration (“penetrates sexually to any extent, intending to do so or reckless as to whether there is penetration of the vagina, anus or mouth of the child”).  As this statutory offence is constituted by the intentional or reckless sexual penetration of the anus of the child, where the charge is one of contravention of section 19, penetration in circumstances where it can be inferred it was intentional or reckless and sexual, is an essential fact and therefore must be corroborated.  That was precisely the proposition advanced on behalf of the appellant at the stage of the section 97A submission.  The procurator fiscal depute accepted that that was so and the sheriff in his report records that as a concession properly made.  We agree.  The sheriff goes on to record that there was an agreement among parties’ representatives and the sheriff that the evidence led was insufficient to justify conviction of contravention of section 19.  While his report would indicate that the sheriff has since had second thoughts, in our opinion, his initial view, apparently shared by the parties’ representatives, was the correct one.  The complainer spoke to penetration by the appellant’s fingers.  As the advocate depute submitted to us the evidence of the witness X was not inconsistent with the complainer’s account but equally it contained nothing to confirm the occurrence of digital penetration.  The rest of the evidence was neutral as to this essential fact.  Accordingly, it was entirely appropriate that the reference to section 19 was deleted from the indictment before parties addressed the jury.

[16]      Of course, the sufficiency or otherwise of the evidence to support a charge of contravention of section 19 is strictly academic for the purposes of the present appeal.  We make reference to section 19 because it featured in the submissions made on behalf of the appellant and, in our opinion, it has a bearing on the question as to whether sufficient evidence had been led in this case to justify conviction of contravention of section 20 of the 2009 Act on a libel which included “and you did intentionally or recklessly sexually touch him in that you did sexually penetrate his anus with your fingers”. 

[17]      As appears from the terms of section 20(2)(a) of the 2009 Act, an averment of digital penetration of the anus of a young child is relevant to a charge of contravention of section 20 just as it is relevant to a charge of contravention of section 19.  Mr Fyffe was anxious to explain this overlap (and indeed the overlap with section 18 – rape of a young child) by reference to the legislative history of the 2009 Act.  We have noted what appears in paragraphs 41 to 44 of the appellant’s written case and argument under reference to paragraph 3.45 of the Scottish Law Commission Report on Rape and Other Sexual Offences and the explanatory notes to the 2009 Act.  However, none of this has any bearing on the proper construction of section 20.  To be fair to Mr Fyffe, he did not suggest that it did.  His concern was to provide a response to a submission that he anticipated coming from the respondent to the effect that section 20 should be given a construction which in some way was different from its plain and ordinary meaning.  As it turned out no such submission was advanced.  We therefore proceed on the basis that the section and the new offence that it created are to be understood by reference to the ordinary meaning of the words used in the enactment.

[18]      Mr Fyffe pointed out that if the view which the sheriff took at the time of the trial was correct where sexual assault by penetration of a young child is prosecuted as a contravention of section 19, there would require to be corroboration of the act of penetration, whereas if exactly the same conduct was prosecuted as a contravention of section 20, corroboration of penetration would not be required.  He implied that this was anomalous.  We would go further.  We would see it as highly unlikely that this was the intention of the Scottish Parliament in enacting these provisions.  We can understand that for reasons of policy and practicality the Scottish Parliament decided to adopt the overlapping structure seen in sections 18 to 20 (and also in sections 1 to 3) of the 2009 Act.  On the other hand, we are quite unable to understand why that structure should have the result that sexual penetration prosecuted under section 20 should be subject to less demanding evidential requirements for proof than sexual penetration prosecuted under section 19.  However, we see nothing in section 20, construed according to the ordinary meaning of the words used, to suggest that the Scottish Parliament intended such a result.  Section 20 provides that if a person does any of the five things specified in section 20(2), then he commits the statutory offence.  The statutory offence is to be known as “the offence of sexual assault on a young child” but it is a completely different entity from common law assault with or without aggravation.  Assault is not one of the common law offences abolished by section 52 of the 2009 Act.  Unlike common law assault, the statutory offence created by section 20 can be committed recklessly.  Sheriff Alastair Brown, commentating on section 20 in Greens Annotated Acts, Sexual Offences (Scotland) Act 2009, states that the adoption of the nomen juris “sexual assault of a young child” does not import the general law of assault into the new offence.  We agree.

[19]      Because the section 20 offence is committed by the doing of one or more than one of the list of five things set out in sub-section (2), whichever thing or things the Crown libels becomes an essential fact which must be proved by corroborated evidence.  Thus, if the Crown libels, for example, sexual penetration, as specified in paragraph (a) of sub-section (2), that must be corroborated and therefore before the Crown can go to the jury on an indictment which contains a libel of sexual penetration there must be a sufficiency of evidence as to penetration (by which we mean corroborated evidence).  If, in addition to a paragraph (a) thing the Crown libels another thing, then that too will have to have been corroborated if it is to remain part of the libel that goes to the jury.  In so saying we would observe that, contrary to what appeared to be suggested by the advocate depute and contrary to the literal reading of the indictment in the present case, as a matter of statutory construction, the five things listed in sub-section (2) are discrete and mutually exclusive behaviours.  Just as, for the purposes of section 20(2), a paragraph (a) thing cannot also be a paragraph (b) thing, neither can a paragraph (b) thing also be a paragraph (c) thing.  Thus while it may not be necessary to repeat the statutory wording which describes the relevant subsection (2) things in the indictment, after evidence is led if the prosecutor is to obtain a conviction he must be able to point to which of these things he claims to have established and to explain how that specific thing or these specific things has or have been corroborated.  For example, if it is a paragraph (a) thing which is relied on to constitute the offence, there must be evidence from more than one source pointing to sexual penetration.  On the other hand, if it is a paragraph (c) thing which is relied on, there must be sufficient corroboration of sexual activity in which A has bodily contact with B.  That does not mean that every part of the narrative in an indictment needs to be corroborated but it does mean that regard must be had to the thing that the prosecutor relies on as constituting the actus reus and that thing must be proved by corroborate evidence.

[20]      The advocate depute described the indictment in the present case as “inelegant”.  We would be less critical.  There was nothing wrong at all with the indictment as originally drafted.  It began with the proposition that the appellant had sexually assaulted a young child.  It specified a series of alleged actions on the part of the appellant which, if established, could amount to one or other of the things specified in paragraphs (a) to (c) of section 20(2) and therefore a contravention of section 20 and, as one of the things was sexual penetration, a contravention of section 19.  That form of charge with its mixture of more than one sexual offence is specifically authorised by section 288BB of the 1995 Act.  As we would see it, the libel “you did take hold of his body by placing both of your arms around his chest, pull him towards … pull him towards the ground” could amount to a paragraph (c) thing;  the libel “place your hand under his clothing and into his pants” could also amount to a paragraph (c) thing;  and the libel “you did sexually penetrate his anus with your fingers” clearly amounted to a paragraph (a) thing.  Where the indictment lost some of its previous coherence was when, after the section 97A submission and the recognition that penetration (the paragraph (a) thing) had not been corroborated, the procurator fiscal depute sought and was granted leave not only to delete the reference to section 19 but also to insert “you did intentionally or recklessly sexually touch him in that”.  While the matter is not entirely clear, what the procurator fiscal depute may have been attempting to do by this amendment was to preserve the allegation of penetration by turning it from a paragraph (a) thing into a paragraph (b) thing.  While this appears to have been acquiesced in by the appellant’s representative, for the reasons that we have attempted to set out above, this was not an adequate or indeed a legitimate response by the prosecutor to the section 97A submission.  Once it was recognised that there was insufficient evidence to allow the jury to find that there had been penetration, the averments of penetration should have been deleted both for the purposes of section 19, (which was no longer to be a matter for the jury’s consideration) and for the purposes of section 20.  Deleting the averment of penetration would presumably have avoided the entirely misleading introduction of the reference to intentional or reckless sexual touching.  We say that because, as we have explained, as a matter of construction of section 20(2), penetration (a paragraph (a) thing) cannot amount to intentional or reckless sexual touching (a paragraph (b) thing).

[21]      As part of the section 97A submission, the appellant’s representative had contended that just as there had been no corroboration or penetration there had been no corroboration of “place your hand under his clothing and into his pants” (what we have described as the paragraph (c) thing).  The sheriff rejected that submission on the basis that the evidence of the complainer as to this part of the libel, being sexual touching, was corroborated by X’s evidence of what was described as a pelvic thrust.  Albeit that our reasoning does not exactly coincide with that of the sheriff we consider he was correct in the decision he made.  In our opinion, there was sufficient conjunction of testimony as between the complainer and X to establish what is described in paragraph (c) as sexual activity in which the accused intentionally or recklessly has physical contact (whether bodily contact or through clothing) with the complainer.  The two witnesses spoke to physical contact and the sexual nature of the contact could be inferred from the whole circumstances.

[22]      As we have indicated in our opinion there was sufficient evidence in the present case to justify the jury in convicting the appellant by reference to section 20(2)(c) of the 2009 Act.  The complainer and X both spoke to what could be regarded, having regard to the full circumstances, as sexual activity involving bodily contact.  We accordingly cannot uphold the appellant’s first ground of appeal.  However, we do uphold his second ground of appeal to the extent of quashing his conviction and substituting a conviction in terms of the amended indictment under deletion of the words: “and you did intentionally or recklessly sexually touch him in that you did sexually penetrate his anus with your fingers”.

[23]      Our decision obviously is relevant to what sentence is appropriate and, accordingly, we continue the appeal for consideration of that issue, as provided by section 118(3) of the 1995 Act.