Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_46.html
Cite as: 2020 GWD 37-477, [2020] HCJAC 46, 2021 JC 118, [2020] ScotHC HCJAC_46

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2020] HCJAC 46

HCA/2020/23/XC

Lord Justice General

Lord Menzies

Lord Turnbull

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION

ALEXANDER JOHN GARLAND

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

30 October 2020

Appellant: IM Paterson (sol adv); PatersonBell

Respondent: A Cameron AD; the CrownAgent

Introduction

[1] On 6 December 2019, the appellant, who was aged 32, was convicted of a charge

which libelled a sexual assault on an 11 year old girl, namely KC, on an occasion in May

2019 at the address of her mother. The appellant was living with the complainer’s mother at

the time. The detail of the libel was that the appellant:

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“did lie beside her, place your hands inside her lower clothing, touch and rub her

buttocks and repeatedly take her hand and compel her to touch your penis:

CONTRARY to section 20 of the Sexual Offences (Scotland) Act 2009; …”.

This had been the second charge on the indictment. The first had libelled the rape of a

19 year old. The appellant was acquitted of that charge. On 16 December the appellant was

sentenced to 18 months imprisonment, three of which were attributable to a bail

aggravation.

[2] Although the ground of appeal was phrased in terms of a misdirection by the trial

judge about the content of certain letters which had been written by the appellant to his

former girlfriend pre-trial, the issue ultimately came to be one of whether the evidence

against the appellant was sufficient. In particular, the question was whether the content of

appellant’s testimony, during which he denied that the events libelled had occurred, and

one of the letters was capable of providing corroboration of the complainer’s account.

The Crown case

[3] The complainer’s evidence consisted primarily of a joint investigative interview

which was held on 7 June 2019. The complainer said that she was at the interview “because

my mum’s ex-boyfriend was making me touch him down there”. She had come in from

school and had been really tired. Her mother was at work. She went into her mother’s

bedroom and lay down. Two seconds later the appellant came in and lay down beside her.

He was “like rubbing into my back bum” and “making me touch him on his private parts”.

She moved away and went to the bathroom. She had gone into her own bedroom and

started crying. She asked the appellant to phone her grandmother and he had done this.

Her grandmother came to collect her.

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[4] The Crown witnesses who spoke to the circumstances surrounding this incident

consisted first of the deputy head teacher at the complainer’s school. On 28 May 2019, about

two weeks after the event, the complainer had told her that the appellant had made her

touch him on his “private parts”. He had also made her lie on top of him and had rubbed

himself against her “bum”. Secondly, there was the complainer’s grandmother who did not

notice anything untoward when she picked the complainer up and took her to her home,

which was quite normal although she did seem a bit quieter than her usual very chatty self.

The complainer lived with the grandmother.

[5] Thirdly, the complainer’s mother explained that she had begun a relationship with

the appellant in January 2019. He had moved in with her during the following month. The

appellant had bought the complainer expensive items, such as air pods, trainers and

“things” from the Nike shop. The complainer’s mother also referred to the disclosure at the

school at the end of May 2019. There was evidence about what the complainer had said on

the way to the JII, which was consistent with what she had told the deputy head teacher.

[6] The complainer’s mother spoke to a number of letters which had been received from

the appellant. These essentially denied that he had done anything wrong. One was dated

20 June 2019 and had been sent by the appellant while he was on remand. This said, inter

alia, that:

“[K] touched me on couch and I told her it was wrong then she acted daft as if she

didn’t know but clearly did I then explained to her why it was wrong then she hit me

in my privates I then screamed and shouted at her she then went to her room and I

sat and watched Ireland’s got talent then I went into her room and tried to speak to

her but she was screaming get out

… for weeks before that she was climbing on top of me for cuddles.”

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[7] At the close of the case, there was no submission of no case to answer. It appears to

have been accepted by the appellant that there was a sufficiency of evidence at least on the

basis of mutual corroboration between the two charges.

The appellant’s testimony

[8] The appellant had made no comment when interviewed by the police. He did testify

at the trial. His response to the first question about the charge was: “It’s absolute bulls..t”.

He explained that the complainer did not live with her mother but with her grandmother.

He often picked the complainer up from school and took her to her mother’s home, where

he too was living. This is what had occurred on the particular day. They had arrived at the

house at about 4.00pm. He decided to go to bed. He was under the covers, wearing a top

and shorts.

[9] The complainer had come into the bedroom. She sat on top of the appellant, initially

above the covers. She had wanted a cuddle. This was a regular occurrence. There had been

a phonecall from the complainer’s mother. At the end of this, the complainer had tried to

climb back on top of the appellant. This time she had gone under the covers. She had

cuddled into him. He had stopped her from climbing on top of him by raising a leg. The

back of the complainer’s hand was next to his penis. This meant that it was touching his

penis, over his shorts. The appellant moved it away, but shortly afterwards the complainer

deliberately put it back to where it had been.

[10] The appellant jumped out of bed and went into the living room, where he started to

watch Ireland’s Got Talent. He remonstrated with the complainer and told her that he did

not feel comfortable with her climbing on him. She had then kicked him “in the privates”,

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causing him to scream, shout and swear. The appellant had telephoned the complainer’s

grandmother, who came to collect her 15 minutes later.

Speeches

[11] The advocate depute’s speech focused on the more serious charge, which was found

“not proven”. The AD emphasised how mutual corroboration could operate and that the

appellant must have been unfortunate to have two females complaining of what was said to

be similar sexual offending. However, the AD did contend that there was a sufficiency on

each charge without the need for mutual corroboration. Specifically on the charge with

which this appeal is concerned, apart from the evidence of the complainer, the AD founded

upon the letter of 20 June (supra) in which the appellant had explained that the complainer

had touched him on the couch and that she had “hit him on his privates”. The lack of detail

in the letter was contrasted with the evidence which the appellant had given. The AD

commented that the appellant “had six months to reveal all of this detail, but there is no

such detail in the letter”.

[12] The speech then concerns itself with the timing and terms of the complainer’s

disclosure to her teacher and her mother and on the lack of any motive on the part of the

complainer to lie about what she was saying that the appellant had done. The speech

returned to corroboration. The AD said that the appellant had admitted that there was

“sexual touching” in the letter to the complainer’s mother (supra). She continued:

“Of course, he turned it around and claimed that it was the child who sexually

touched him. But it would be open to you to accept the accused’s admission that

there was sexual contact and to reject his explanation that it was at [K’s] instigation.”

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[13] The defence speech concerned itself mostly with issues of credibility and reliability

and the application of mutual corroboration. Counsel recognised that the AD was seeking a

conviction based not only on the application of mutual corroboration but also on standalone

corroboration on each charge. He did not submit that the AD was not entitled to do this. He

did not ask for a direction that if the jury rejected the evidence of the complainer on the rape

charge, they would require to acquit the appellant of the other charge.

Charge

[14] In what might be described as a comprehensive charge, at least on some matters, the

trial judge said that the appellant had denied any wrongdoing. The appellant had given

accounts that were consistent with his innocence and that if the jury believed his testimony,

or had any reasonable doubt about the Crown case, they would be bound to acquit him. If

the jury did not believe the complainer, that too had to result in an acquittal. The judge

continued that, if they did believe the complainer, then:

“the crown say it’s a standalone charge in the sense the advocate depute suggests

that there were things said by the accused in the letters which you have heard about

which support the account given by [KC], but you have to bear in mind ever ything

said by the accused himself in relation to these matters, namely that there was no

wrongdoing whatsoever in relation to [KC]”.

[15] At a later point in his charge, the trial judge added:

“In relation to charge 2, the advocate depute suggests that too is a standalone charge

based on the evidence of the complainer, [KC] and the advocate depute says from

things said by the accused and she points to the letters that you heard in evidence”.

Finally, he said:

“In relation to charge 2, the advocate depute invited you to accept the second

complainer as well as the first in relation to those matters, and she invited you to find

corroboration for that in the admission of sexual touching the advocate depute

suggested existed. Whether there was any admission is a matter for you…”.

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Submissions

[16] The ground of appeal is that the trial judge erred in directing the jury that the content

of the letters could be interpreted as an admission. The jury ought to have been directed

that the charge involving KC could only be proved by the application of mutual

corroboration. The letters did not contain an admission of inappropriate behaviour or

wrongdoing.

[17] The appellant submitted that the trial judge had erred by failing to direct the jury

that there was no corroboration available either in the appellant’s letters or his testimony.

There had been no admission of inappropriate touching. The letters and the testimony were

entirely exculpatory.

[18] The advocate depute maintained that there was a sufficiency of evidence based upon

the appellant’s admissions (Gilmour v HM Advocate 1994 SCCR 133 at 135; Branney v HM

Advocate 2014 SCCR 620 at para 18). The statements made by the appellant, both in the

letters and in his testimony, were capable of being taken as containing admissions that the

complainer had repeatedly touched the appellant’s penis. The jury could accept that and

reject the qualifications advanced by the appellant (cf Dunn v McGovern [2013] HCJAC 120;

see also Gray v Procurator Fiscal, Elgin, Sheriff Appeal Court, 29 July 2020, unreported).

Decision

[19] It is understandable that the focus at the trial may have been on the rape charge, but

it is unfortunate that the Crown did not spell out in much clearer terms exactly what they

were founding upon as standalone corroboration on the charge under consideration. It

would appear, from what the AD said to the jury, that she may have been founding solely

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upon the content of the letter of 20 June and asking the jury to reject the appellant’s

testimony in its entirety. The problem with that approach is that, although, with its

reference to Ireland’s Got Talent, the letter is referring to the same incident as the appellant

later spoke about in his testimony, what the letter refers to in an incident on the couch in the

living room and the complainer touching the appellant and then hitting him on his

“privates”. It is not immediately clear how that could corroborate the complainer’s account

of what she said happened in the bedroom. The latter involved positive actions by the

appellant.

[20] It is unfortunate too that the trial judge did not give the jury clear directions on

exactly where they might find standalone corroboration of the complainer’s evidence. The

directions merely stated what the trial judge understood the Crown’s position to be and

were therefore not very helpful. The judge’s understanding of the AD’s speech reflected the

focus on the letters, or rather a letter, rather than the appellant’s testimony. He left it to the

jury to decide whether the letter contained “any admission”. He ought to have given the

jury clear directions on where corroboration might be found by identifying with reasonable

precision any passages in the letter, or elements of the appellant’s testimony, which might

constitute corroboration.

[21] What is clear is that the jury accepted the testimony of the complainer as credible and

reliable. The only real question is whether corroboration could be found in either the

testimony of the appellant or in the earlier letter. That involves a consideration of whether

what the appellant said or wrote “confirms or supports” the complainer’s account . As was

made clear in Fox v HM Advocate 1998 JC 73 (LJG (Rodger) at 100-101; LJC (Cullen) at 109),

when disapproving of the approach in Mackie v HM Advocate 1994 JC 132, where the

question is whether proof of certain facts and circumstances affords sufficient corroboration

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of direct testimony, it is not necessary for those facts and circumstances to be more

consistent with the direct evidence than an explanation or account given by an accused. It is

sufficient that they are capable of confirming or supporting the complainer’s testimony. It is

a matter for the jury to determine whether to accept the facts and circumstances as

corroborative or to interpret their meaning in a different manner.

[22] The following facts and circumstances, when taken together, provided sufficient

corroboration of the complainer’s direct testimony. First, the relationship between the

appellant and the complainer was not a familial one, or at least not strongly so. The

appellant’s relationship with the complainer’s mother had only commenced about three

months before the incident. The complainer was not living in h er mother’s home, but with

her grandmother. Secondly, notwithstanding the relatively remote nature of the

relationship, the appellant was buying the complainer presents of significant value. The jury

would have been entitled to consider that he was deliberately ingratiating himself to her.

Thirdly, the incident occurred when the complainer’s mother was away at work and would

therefore not be returning home at the material time. Fourthly, the appellant accepted that

he was in bed with the complainer, that is to say an 11 year old girl, at about 4.00pm. The

jury would have been entitled to regard this as unusual in a situation in which he was only

supposed to be looking after the complainer in the period between her return from school

and going to her grandmother’s house. Fifthly, the appellant also accepted that he was in

close physical contact with the complainer, involving at least cuddling, under the bedcovers.

That, in itself, would have been a strong corroborative circumstance had it been spoken to

by an independent eye witness, and it is no less so when it is described by the appellant.

Sixthly, the appellant accepted that the complainer’s hand was touching his penis, albeit

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over his shorts, on two separate occasions. The same consideration applies here in relation

to testimony from an eye witness who might have observed this happening.

[23] It was then a matter for the jury to decide whether they regarded these facts and

circumstances as confirming or supporting the complainer’s testimony or whether they

interpreted them in a different manner. The appeal is therefore refused.