High Court refuses appeal by man convicted of indecently assaulting foster brother as a teenager
A man who was convicted of indecently assaulting his foster brother when he was a teenager has lost an appeal to the High Court of Justiciary against his conviction on the ground of sufficiency of evidence.
John Deeney, 53, was convicted and sentenced to four years’ imprisonment after a trial diet in November 2020. He argued that the trial judge had erred in directing the jury that they could use evidence of other conduct said to have taken place when he was aged 9 to 10 as mutually corroborating the events libelled in the indictment.
The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Pentland. The appellant was represented by Lenehan, advocate, and the Crown by P Kearney, solicitor advocate.
Like an older brother
The appellant was indicted on a single charge that on various occasions between 1981 and 1984 he indecently assaulted the complainer, PT, including the act of sodomy. At the time of those events, the appellant was aged between 13 and 17. Attached to the indictment was a docket which stated that the Crown intended to lead evidence of other instances of indecent assault against another person, JK, which were said to have taken place when the appellant was aged between 9 and 10.
Under section 41A of the Criminal Procedure (Scotland) Act 1995 it would not have been competent to prosecute the appellant for the docket offence at the time the indictment was served. Nonetheless, the trial proceeded on the basis that the evidence relevant to the docket was admissible and capable of corroborating the conduct alleged in the indictment, and the advocate depute relied on several points of similarity between the events in his speech to the jury.
All of the conduct alleged had taken place in the appellant’s family home and both PT and JK had been fostered by the appellant’s parents. The complainer described how he had moved into foster care with the Deeneys when he was aged 7 and had come to regard the appellant like an older brother. He spoke to three incidents when he was indecently assaulted by the appellant after being invited to go into the loft of the house to play a “game”. The witness JK stated that on multiple occasions he had been led into the appellant’s bed, where the conduct described in the docket occurred.
The appellant denied that any indecent conduct has occurred and said that at the material times he did not know what sex was, having reached puberty late. In his directions to the jury, the trial judge gave the standard direction on mutual corroboration but told them to apply it with caution given the age of the appellant at the material times.
It was submitted for the appellant that the trial judge ought to have invited submissions on sufficiency. It was necessary for the application of mutual corroboration that the corroborative events amounted to a crime and given the appellant’s age at the time of the events libelled in the docket he would not have been able to comprehend the concept of consent. There was no offence of sexual conduct between younger children, therefore the docket events could not constitute a crime.
Amounted to a crime
Delivering the opinion of the court, Lord Carloway began: “In this case, if, as is now contended, the evidence in relation to the docket events was irrelevant, in the sense that it could not provide mutual corroboration, then objection to it ought to have been taken to it in the pre-trial.”
Discussing the application of mutual corroboration, he said: “There is no requirement that the events libelled in a docket should, by themselves, constitute a crime of which the accused could be convicted. Section 288BA(1) of the  Act provides that an indictment or complaint can include in a docket an act or omission that is connected with a sexual offence charged in the indictment or complaint.”
He continued: “It is true to say that the events in the docket must have amounted to a crime in order to provide mutual corroboration of another crime. That does not mean that the crime has to be one of which the appellant could competently be convicted.”
Lord Carloway concluded: “The appellant was above the age of criminal responsibility at the time and could have been convicted of that offence. There is nothing in the subsequent legislative amendments in 2009 or 2019 which affects this. That is sufficient for present purposes. The docket witness was not capable of consenting to the acts involved. The appellant’s inability to consent or to understand the concept of consent is, in that context, irrelevant.”
For these reasons, the appeal was refused.