APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Mackay of Drumadoon Lord Brodie	[2012] HCJAC 140 XC835/11 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by IAN ALEXANDER DEMPSTER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: S Collins, Solicitor Advocate; Capital Defence

Respondent: Brown, QC, AD; the Crown Agent

10 October 2012

[1] On 28 October 2011, at the High Court in Edinburgh, the appellant was convicted of five charges involving indecent or sexual assault. Charge 1, as amended, libelled that, on 24 August 2010 at an address in Dunbar, he assaulted CS by instructing her to remove her clothing, pulling her trousers down, seizing her by the arms, pushing her and holding her down on a bed, rubbing his penis against her body and masturbating above her. The second charge libelled that in Galashiels on 12 February 2011, he sexually assaulted GM by handling her private parts over her clothing, seizing her by the body and pulling her onto his knee, restraining her there, handling her buttocks over her clothing and handling her breasts (contrary to section 3 of the Sexual Offences (Scotland) Act 2009). The three remaining charges all libelled offences committed on 13 February 2011, at a different address in Dunbar. The first of these (charge 3) was of sexually assaulting TW, by placing his hands down her trousers, attempting to handle her private parts, placing his hands under her clothing and attempting to handle her breasts (also contrary to section 3 of the 2009 Act). The second (charge 4) was intentionally exposing his genitals in a sexual manner to TW and SM (contrary to section 8 of the 2009 Act). The third (charge 5) was a statutory breach of the peace (contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010) by repeatedly demanding that TW and SM remove their clothes and behaving in a threatening manner towards them. On 21 December the trial judge sentenced the appellant to eighteen months' imprisonment on charge 1, six months' imprisonment consecutive on charge 2, an extended sentence of four years (with a custodial term of twelve months) consecutive on charge 3 and six months concurrent on charges 4 and 5.

[2] The circumstances relative to charge 1 require to be noted. According to the complainer, who was aged 19 at the time of the offence, she met the appellant, whom she had not previously known, at a garage in Musselburgh and he had first offered her a lift home and then to give her driving lessons. The complainer had ultimately accepted an invitation to go into the appellant's house, where he began to show her a pornographic DVD. She objected to this and he had replaced it. He gave her a gift of two rings and a mobile phone. The discussion turned to matters sexual and the appellant had attempted to touch the complainer's private parts. She had become afraid and asked him to take her home. The appellant had said that he would take her home after she had lain naked on his bed and allowed him to touch her. The complainer was crying and protesting, but had reluctantly agreed in order to return home. The appellant then performed the acts libelled in charge 1, before allowing the complainer to get dressed and driving her back to Musselburgh.

[3] In relation to charge 3, the essence of the offence involved the appellant arriving at his house in Dunbar and telling the two females (aged 19 and 21), whom he was driving to Dunbar, that he would have to go in and get money for petrol. The females accepted his invitation to go into the house and, after the occurrence of the matters libelled in the charge, the appellant had removed his clothes and asked the females to do the same. They had become afraid and apprehensive. The appellant had told them that they could sleep in his bedroom. They had gone there and lain down. The appellant had then come in and attempted to join them in the bed. The females jumped up and ran out of the house, eventually calling the police.

[4] In contrast to these narratives, the appellant, who was aged 54, told a different story. On the first charge, he maintained that CS had gone into the bedroom of his house and removed her trousers in order to show him why she had wanted plastic surgery. He had become aroused and asked her if she would mind if he masturbated behind her. She said that she did not mind, and he had lain down beside her and did so, to the point of ejaculation. In relation to charge 3, he said that the females had been extremely drunk when they had arrived at his house and, essentially, had instigated any sexual behaviour. In particular, TW had taken off her clothes and thrown herself onto his knee. SM, who had meantime gone to a bathroom, had returned. The females had gone to bed and invited the appellant to join them.

[5] In dealing with these conflicting narratives, the trial judge gave the jury clear directions in relation to the appellant's account. These were, as follows:

"If you believe him, you acquit him of a particular charge. Even if you don't believe him, or don't wholly believe, but the evidence taken as a whole, leaves you with a reasonable doubt about the Crown case, then you can acquit him of that charge."

[6] Two other aspects of the charge require to be noted in light of the grounds of appeal tendered. The first relates to the corroboration on charge 1. In that respect the trial judge directed the jury as follows:

"A word about corroboration here. It's not necessary for each one of the elements in the narrative to be proved by corroborated evidence, and that will be the case for each of the charges. It's not necessary for every bit of this narrative to be proved by corroborated evidence, but there must be corroboration, in other words there must be evidence from more than one source that an assault did take place. Now, in this case we have the evidence from [CS] of the events which she said happened, but, obviously there were no eye witnesses other than the accused, so where is the corroboration? Well, you will recall that the accused ... gave evidence to this court that he masturbated close to [CS], and you will recall that he gave a similar account in the police interview which we listened to. Now, although his version of the events of that day is very different from [CS's], his evidence that he masturbated over her does provide the necessary corroboration of the crime of assault if you accept her account that this took place in the course of what was, in effect, an attack on her."

Subsequently, the judge dealt with the application of the principles of mutual corroboration relative to charges 1 and 3 and, in particular, gave the jury directions that, in relation to charge 3, corroboration could be obtained only if they believed both the complainer on charge 1 and the complainer on charge 3 and held that the offences were so closely linked in time and circumstances that they could be regarded as a course of conduct by the appellant.

[7] The trial judge in directing the jury in relation to charge 3 dealt with the defence of reasonable belief of consent, as follows:

"... one of the essential ingredients of this offence is that the accused must have had no reasonable belief that the complainer was consenting to what took place, and it's for the Crown to prove that, not for the accused to prove that he ... to show that he did have a reasonable belief. If it's proved that he actually knew that the complainer didn't consent, then it must follow that he had no reasonable belief that she did. If it's not proved that he actually knew, then the Crown must prove that his belief that he thought she did wasn't a reasonable one for him to have held. But a reasonable belief is not the same thing as an honest belief, the belief must be held on reasonable grounds. So how do you judge that? Well, you look at what the facts tell you about the interaction between the victim and the accused, and a shared understanding of what was happening. So to decide if an accused's belief that the victim was consenting was reasonable you have to look at whether he took any steps to find out if she was consenting and what these steps were".

[8] The first ground of appeal (ground 2) is that the trial judge erred in directing the jury that the appellant's admission to masturbating in the presence of the complainer was capable of providing corroboration of the complainer's account. The contention was that the admission made by the appellant, although accepting of some form of sexual contact with the complainer, could not corroborate the complainer's account because the appellant's account was not eloquent of the same facts and circumstances. Put another way, there was no consistency in the testimony of the complainer and the account given by the appellant.

[9] The second ground (ground 3) is that the trial judge erred in directing the jury on the requirement for the absence of reasonable belief. He had erred in directing the jury that, in determining whether the belief of the appellant was a reasonable one, they had to look at whether he took any steps to find out if the complainer was consenting and what those steps were. He had failed to direct the jury that there could be reasonable belief in the absence of any steps having been taken. This carried with it the potential for a misapprehension that, if the appellant had taken no steps to ascertain whether consent was given, there could thereby be no reasonable belief.

[10] What requires to be corroborated on a charge of assault is the fact of the assault libelled. Each separate element of the assault does not require separate corroboration. The complainer, on charge 1, had provided one source of evidence of assault, which included a narrative that the appellant had ejaculated over her while she was naked. The admission by the appellant that he had masturbated over her was capable of corroborating that element of what was an assault and, indeed, the similar elements libelled in the charge. For these reasons the court does not consider that there was any misdirection on corroboration. In any event, standing the trial judge's directions on the applicability of the doctrine of mutual corroboration, in order to convict the appellant on charge 3, the jury had to have accepted as credible and reliable the complainer on charge 1 also. It is clear that the jury did accept the evidence of both complainers on these charges and, in these circumstances, the court cannot hold that any miscarriage of justice has occurred on the basis of the directions given.

[11] The court accepts there is force in the submission that, from a practical point of view, there are many cases where the steps taken by an accused person to ascertain whether consent was being given are, essentially, irrelevant. In this case, for example, there were two competing accounts: one, that the complainers had instigated the sexual activities and the other that what had happened was entirely against the wishes of the complainer. In that situation it is difficult to see what relevance there is in trying to identify the steps taken to establish consent. The jury had two versions of events and required to decide whether to accept that of the complainers or to acquit the appellant. However, the position is, in terms of section 16 of the Sexual Offences (Scotland) Act 2009, that in determining whether an accused did reasonably believe that consent had been given, the court must have regard to whether he took any steps, even if there were clearly none. It cannot be said, in these circumstances, that the trial judge's directions were in error, even if they might be regarded as unnecessary. The court cannot hold that any miscarriage of justice has occurred thereby and therefore this appeal is refused.

DL