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Reduced sentence after 'material misdirection' on sexual assault charge

A man who was found guilty of three counts of sexual assault in an ‘omnibus’ charge has had his sentence reduced from two years to eight months after appealing against his conviction. The appellant, Piotr Rysmanowski, argued only one of the three episodes was corroborated and questioned how the jury was directed on what ‘mutual corroboration’ is.

Background to the case

Rysmanowski was tried and convicted of sexually assaulting his partner’s then 12-year-old daughter ‘RS’ on three occasions between August and September 2017, contrary to section 20 of the Sexual Offences (Scotland) Act 2009.

During the trial at Dumfries Sheriff Court, the sheriff said the “case stands or falls on the evidence” of RS, whether the jury felt the complainer was credible and if there was “evidence supporting what she says”. This evidential support came from the complainer’s mother “about some elements of the charge, although not all of them”. The mother stated she returned to the flat and witnessed the appellant touching her daughter, in accordance with part (c) of the charge, and thereby corroborating the complainer’s testimony.

The sheriff then directed the jury on the general need for corroboration, stating all three acts constituted “a single crime of sexual assault”. The sheriff explained:

“The other elements of the charge are descriptive only to give the accused fair notice of how the crime is alleged to have been committed and don’t need to be corroborated.”

The appellant was subsequently sentenced to two years’ imprisonment and a further four months for breaking his bail conditions of not contacting RS.

What is corroboration?

A distinctive feature of Scottish legislation is the requirement for corroboration of evidence in criminal cases. The law surrounding corroboration becomes especially complicated when considering sexual crimes, as these incidents typically occur in a private setting. In such cases, the prosecution will seek to rely on the application of mutual corroboration, or corroboration by similar facts. Referred to as the Moorov doctrine, separate acts can be treated as a single course of conduct if perpetrated by the same individual and proved by corroborated evidence.

What constitutes a course of conduct is the subject of a substantial body of Scots law, particularly where significant time gaps separate two or more incidents. There must be evidence which proves the acts are not isolated incidents but are, instead, component parts of one course of conduct pursued by the same individual. The doctrine of mutual corroboration is complex, which is why it is always recommended to have a qualified legal professional defend you.

Grounds for appeal

Rysmanowski appealed on the grounds that there was “insufficient evidence” on parts (a) and (b) and that the complainer’s mother only corroborated part (c). This argument then changed in favour of a new ground: that the sheriff failed to provide the jury with an “appropriate route to verdict” for the omnibus charge and there was only direct corroboration of one of the elements.

Allowing Rysmanowski to amend his note of appeal to include the new ground, the appeal judges ruled the first two parts of the libel should be deleted. Lord Carloway concluded it was a ‘material misdirection’ how the jury was guided:

“The fundamental problem is the jury were not directed to the possibility of applying the principle of mutual corroboration in order to find the whole charge proved. They were directed to approach the charge as if it constituted a single crime in which the separate episodes did not require to be corroborated at all.”

“In these circumstances, the route to verdict must include the conventional directions in a mutual corroboration case. There is no other route involving corroboration of a course of conduct.”

Rysmanowski’s sentence of two years imprisonment was substituted for eight months.

Expert Sexual Assault Legal Defence in Scotland

A sexual assault charge can have life-changing implications for you and your family. If you are the subject of sexual offence allegations, it is imperative to instruct a skilled criminal defence solicitor who can provide you with a robust defence. At Keith J Tuck, our solicitors are always on hand with strategic legal advice tailored to your circumstances. Whether you need help through police interviews or representation in court, we will work tirelessly on your behalf to ensure your reputation is protected.

Contact our Specialist Sexual Offence Lawyers in Glasgow City Centre

At Keith J Tuck, we can provide expert legal guidance for numerous sexual offence charges, including indecent assault, rape, and historic sexual offences. No matter what you have been accused of, you should never look at it lightly. Please speak with a member of our qualified criminal defence team today to discuss your case in detail. Call us on 0141 336 2020 or complete the online enquiry form.

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