Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 72

HCA/2015/003541/XC

Lord Justice Clerk

Lord Menzies

Lord Brodie

STATEMENT OF REASONS

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

PG

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  McCluskey; Paterson Bell, Edinburgh (for Tods & Mitchell, Paisley

Respondent:   A Brown, QC, AD; Crown Agent

17 August 2016

[1]        This appeal relates to charge 5 on the indictment, namely a charge contrary to section 31 of the Sexual Offences (Scotland) Act 2009 alleging that the appellant, an adult, had intentionally caused AB, a child between the ages of 13 and 16, to participate in sexual activity in that he caused her to expose her naked vagina, photograph it and send these images to him, and requested her to video herself fondling her vagina and send that to him.  

[2]        The appellant was sentenced to 15 months imprisonment on this charge.  He pled guilty to a further charge of taking, permitting to be taken or making indecent photographs, or pseudo-photographs, of children, and was sentenced on that charge to imprisonment for a period of 10 months.  The indictment had also contained 3 charges of lewd and libidinous behaviour or sexual assault towards AB, and a charge of sexual assault on a further complainer aged between 13 and 16, CD.  These charges were found not proven by the jury.  Charge 6, a further charge of a contravention of section 31 in respect of CD was withdrawn just prior to the closing of the Crown case.

[3]        The basis of the appeal was that the evidence of AB was not corroborated, and that the sheriff erred in failing to uphold a submission of no case to answer.  The heart of the appeal was the submission that the evidence of CD having been considered insufficient to establish charge 6, could not corroborate the evidence of AB as to charge 5.

[4]        The Crown submitted that despite the withdrawal of charge 6, the evidence of CD remained available in support of charge 5, as did the remaining evidence in the case.  Taken together the totality of the remaining evidence was sufficient to corroborate the evidence of AB.

[5]        The complainer AB gave evidence in support of the libel of charge 5, as well as the other charges relating to her.  In particular she gave evidence that the appellant had asked for, and she had sent, the pictures.  She gave evidence that she spoke about this to her friend CD, who indicated that the appellant had asked for similar pictures of her.  Photographs of CD’s genitalia were sent using AB’s phone, since CD’s phone was not working.  The appellant had offered £40 for photographs of both girls, which sum had been paid and split between them.

[6]        CD gave evidence that the appellant had requested the photographs through AB, and had not asked her directly.  She had taken the photographs using AB’s phone, her own phone being out of action.  AB had been paid £10, and she herself had received £4 for the images.  She agreed with her police statement in which she stated “he gave me £4”.  The sheriff notes that she asserted that she had received the money for the pictures.  Images of female genitalia were found on the appellant’s computer, one image, which came from a mobile phone being titled “C”, the first name of CD.

[7]        We are of the view that the sheriff was correct to reject the no case to answer submission, on the basis that the Crown case, taken at its highest constituted a sufficiency of evidence.  It is necessary to bear in mind that one is not looking at the doctrine of mutual corroboration, and one is not looking for a sufficiency of evidence on charge 6:  the sole question is whether there is circumstantial corroboration of the clear evidence of the complainer on charge 5.  AB’s evidence was that she had been asked to, and did, send photographs of her vagina to the appellant, and that similar photographs were sent of CD.  There was additional evidence that:

• CD had taken such a photograph of herself, on a mobile phone, which she understood AB to have sent to the appellant
• CD had received money from the appellant for this picture
• There was a picture of a vagina labelled “C” on the appellant’s laptop, having come from a mobile phone
• There was evidence of the appellant’s sexual interest in both girls, and in underage females generally.

[8]        These are adminicles of evidence which, taken together, with the evidence of AB, create a sufficiency of evidence in relation to charge 5.  The appeal against conviction will be refused.  The appeal against sentence was not insisted in and will also be refused.