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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Chakal v. Procurator Fiscal [2004] ScotHC 55 (27 August 2004) URL: http://www.bailii.org/scot/cases/ScotHC/2004/55.html Cite as: [2004] ScotHC 55 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord MacLean Lord Hamilton Temporary Judge C.G.B. Nicholson, C.B.E., Q.C.,
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Appeal No: XC110/03 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL by STATED CASE in causa BULENT CHAKAL Appellant; against PROCURATOR FISCAL, Edinburgh Respondent: _______ |
Appellant: Ms. A. Ogg, Solicitor Advocate; McCourts
Respondent:
A.J. Lamb, Q.C., A.D.; Crown Agent27 August 2004
[1] The appellant was convicted after trial on complaint in the Sheriff Court at Edinburgh on the charge (as amended) that on 21 January 2003 in a flat in the city he did "assault" [the female complainer, then aged 15] "and did place your hand under her clothing and touch her naked stomach and fondle her private parts over her clothing". At the date of the alleged assault, the appellant was aged 29. The matter sought to be brought under review is whether there was sufficient evidence in law to entitle the sheriff to convict. [2] The evidence disclosed that at the material time the complainer was temporarily resident with another young woman, K.E. (then aged 18) at the latter's home at the address referred to in the charge. They were the only persons normally resident there at that time. On the evening of 20 January 2003 K.E. noticed from her flat the appellant walking up and down the street outside as though looking for someone. She spoke to him and was told that he had had an argument with his wife and had nowhere to stay. Although he was a stranger, K.E. invited him into the flat where, after some friendly conversation, it was agreed that he might stay as a lodger. A sum of money was paid as initial rent for a few days. [3] In the course of that evening the appellant, in the presence of both young women, raised in an unsolicited way certain sexual issues. He offered the girls money either to sleep with him or to sleep together and he indicated that he liked them and had no difficulty with the fact that the complainer was only 15. These conversations culminated in the two girls informing him that they were lesbians, though this was done by them partly as a joke and partly so that he would leave them alone. The appellant did not stay in the flat that night but left for work in the course of the evening, returning the following day with certain personal property. [4] The complainer, who had not been party to the invitation to the appellant to stay as a lodger, continued to express to K.E. her unhappiness at that arrangement. In the course of that afternoon, the appellant learned from K.E. about the complainer's unhappiness at his presence. He then went into the livingroom where the complainer was sitting with two boys, aged 14 and 15 respectively, and asked her to go into a bedroom to speak with him. The complainer indicated her unwillingness to do so but he pressed her on the matter. The complainer asked one of the boys to go through to the bedroom in company with her and the appellant so that she would not be alone in the room with him. The complainer then went into the bedroom but, before the appellant joined her there, he told the boy not to come in. The boy complied with that instruction. The appellant closed the bedroom door behind him. A few minutes later the complainer emerged from the bedroom obviously upset. Immediately thereafter the appellant departed from the flat leaving his personal property behind. He did not return. [5] The complainer spoke in evidence to having been indecently assaulted in the bedroom by the appellant in the particular manner described in the charge (as amended). She had given a consistent account of such conduct since immediately following her emergence from that room. The sheriff found her to be a credible witness. The appellant did not give evidence but in a lengthy tape-recorded interview with police officers denied the allegations of indecent assault, which were fully put to him. When charged, he responded "It is just lies". [6] At the close of the Crown case a submission was made to the sheriff that the appellant had no case to answer, the contention being that the complainer's evidence as to the appellant's alleged conduct towards her in the bedroom was uncorroborated. The sheriff repelled that submission. [7] Before us Miss Ogg, on the appellant's behalf, renewed the contention that there was insufficient evidence in law to support the charge. The complainer's account of indecent assault was not corroborated. Reference was made to Smith v. Lees 1997 S.C.C.R. 139. The evidence in the present case could be contrasted with that led in Brouillard v. H.M. Advocate 2004 S.L.T. 726, where there had been independent evidence of the complainer's clothing having been disturbed. Here there was no such evidence. There was no independent evidence of any conduct of a sexual nature in the bedroom, far less of such conduct involving a physical assault. [8] In our view, while the issue is a narrow one, the sheriff was entitled to reject the submission of no case to answer. The crucial facts to be proved on this charge were that an indecent assault had been perpetrated on the complainer in the bedroom and that the appellant had been the perpetrator of it. There was ample evidence that at the material time the only persons present in that room were the complainer and the appellant. The only issue was whether there was sufficient evidence of the perpetration of the crime. The complainer gave a full account of an indecent assault having been perpetrated by the appellant on her there, and her evidence about that was accepted by the sheriff. The question for decision is whether her account was corroborated by facts and circumstances spoken to by other witnesses. [9] In Smith v. Lees it was held that evidence of distress exhibited by a complainer could not itself corroborate her account of what had happened to her. While it appears that in that case there may have been other adminicles of evidence (page 142B-C), on appeal the Crown placed no reliance on these. That decision is accordingly concerned only with the significance of such distress as an element of proof. [10] In the present case there are, in our view, several pieces of evidence which, taken together, support the evidence given by the complainer. K.E. (as well as the complainer) spoke to uninvited overtures of a sexual nature having been made the previous evening by the appellant to both young women; these included invitations to them to participate with him in physical activity of a sexual character. The boy (and his companion) spoke to the appellant having taken positive steps toexclude him from the bedroom into which the complainer had entered on the basis that she would not be alone there with the appellant. Immediately after the brief period when the appellant and the complainer were alone together there, the appellant, according to independent witnesses, precipitately departed from the flat leaving his belongings behind. These circumstances, when taken together, are consistent with the appellant's sexual conduct towards the complainer having escalated to his making physical advances of a sexual kind towards her in the privacy of that room. They are such, in our view, as to support or confirm (in the sense indicated in Fox v. H.M. Advocate 1998 S.C.C.R. 115 at p. 134E-F) the direct evidence of the complainer as to what physically occurred within that room. It is unnecessary that there be independent evidence of the particulars of what occurred: it is sufficient if there is corroborated evidence of an indecent assault (Stirling v. McFadyen 2000 S.C.C.R. 239, at p. 242B-C). That what did occur was unwelcome to the complainer is corroborated by the evidence of others as to her state of distress.
[11] In these circumstances this appeal must fail. We shall answer in the affirmative all four questions posed in the stated case.
