HMA v CG 2019CG, an appellant who argued there was no mutual corroboration in his trial at Dundee sheriff court where he was found guilty of sexually assaulting his niece and nephew, has had his appeal against conviction refused at the Sheriff Appeal Court. In essence the appellant’s argument was that his actions is touching and massaging his nephew while applying sun cream was not a sexual offence meaning that there was no corroboration for the second charge. The second charge was touching a girl, his niece, sexually in her private parts over her clothes.
At the end of the Crown’s case the defence made a no case to answer submission stating that in charge two the conduct could not be said to be sexual. However, the Sheriff did not agree and repelled the submission and the Sheriff Appeal Court agreed and stated: “On the submission of no case to answer, and ultimately in relation to conviction, with regard to the touching being sexual, the summary sheriff founds on the nature of the activity, there being no reason for applying sun cream under the child’s shorts, to the top of his thighs and to his groin area…While the circumstances are unusual, in that everything took place at the poolside and in full view of the child’s mother, we consider that the evidence of the appellant’s action, in applying sun tan lotion under the male child’s long shorts and in the region of his groin area entitled the sheriff to be satisfied that the appellant’s conduct was sexual; it was touching which a reasonable person would, in all the circumstances of the case, consider to be sexual.”