RYSMANOWSKI, NOTE OF APPEAL AGAINST CONVICTION BY PIOTR VALDERMAR RYSMANOWSKI AGAINST HER MAJESTY'S ADVOCATE

Factual and Procedural Background

The Appellant was convicted at the Sheriff Court in Dumfries on 16 August 2018 of sexually assaulting a child under 13 years old on various occasions between 22 August and 9 September 2017, at a location in Lockerbie. The charge included multiple acts such as inducing the child to remove clothing and engage in sexual acts, as well as one occasion of touching the child's buttocks over clothing. The Appellant was also convicted of breaching a bail condition prohibiting contact with the child. On 3 October 2018, the Appellant was sentenced to two years imprisonment for the sexual assault charge and four months for the bail breach, to run consecutively.

The evidence included testimony from the child (complainer) describing repeated sexual assaults by the Appellant, and corroboration from the child's mother regarding one specific incident on 9 September 2017. The Sheriff directed the jury on the general requirement for corroboration, treating the acts as constituting a single crime. The Appellant appealed the conviction.

Legal Issues Presented

1. How should a jury be directed on the requirement for corroboration when the Crown libels an omnibus charge referring to different but similar acts occurring on various occasions over a period of time?
2. Whether the principle of mutual corroboration applies to an omnibus charge involving multiple separate episodes of sexual assault.
3. Whether the failure to direct the jury on mutual corroboration constituted a material misdirection affecting the safety of the conviction.

Arguments of the Parties

Appellant's Arguments

• The complainer described three separate episodes, but only the final episode was corroborated, resulting in insufficient evidence for parts (a) and (b) of the charge.
• The sheriff erred by failing to provide the jury with an appropriate route to verdict under an omnibus charge where only one element was directly corroborated.
• The jury should have been directed on the principle of mutual corroboration, allowing corroboration from one episode to support others within a course of conduct.
• The sheriff treated the incidents as a single crime but did not instruct the jury that if the incidents formed a course of conduct, not all elements required separate corroboration, which was necessary for a proper verdict.

Respondent's Arguments

• The new ground of appeal was not originally contained in the Note of Appeal and had not passed the sift, but regardless, there was sufficient evidence to uphold the conviction.
• The offence was properly libelled as a single course of conduct involving repeated sexual assaults over 19 days, and corroboration of the course of conduct as a whole was competent.
• The complainer’s testimony could be corroborated by independent evidence relating to one or more of the assaults, referencing established authorities.
• Whether the incidents constituted a single episode was a matter of fact and degree; the jury’s lack of direction on this was not a miscarriage of justice.
• If the incidents were separate, mutual corroboration could supply sufficiency due to similarities in time, place, and character.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized that the law on corroboration in omnibus charges involving multiple similar acts remains complex but emphasized established principles. The Crown may frame an omnibus charge covering repeated offences as a single course of conduct. However, each separate criminal act within that course still requires corroboration, whether through direct evidence or mutual corroboration.

The court found that the sheriff misdirected the jury by treating the charge as a single crime not requiring corroboration of each element. The jury was not directed on the principle of mutual corroboration, which would have allowed evidence of one episode to corroborate others if the jury found the episodes formed a persistent course of conduct.

The court explained that the phrase "course of conduct" carries no inherent significance for sufficiency of evidence except in the context of mutual corroboration. The failure to direct on mutual corroboration was a material misdirection that affected the safety of the conviction as to parts (a) and (b) of the charge.

Although the evidence of the complainer’s mother corroborated the final episode (part (c)), the absence of proper directions meant that the jury could have wrongly convicted on uncorroborated elements. The court noted some confusion arising from dicta in Stephen v HM Advocate, clarifying that corroboration must be established through mutual corroboration principles rather than treating the entire omnibus charge as a single crime requiring no separate corroboration.

Holding and Implications

The court allowed the appellant to amend the Note of Appeal to include the new ground concerning jury directions on mutual corroboration.

It held that the failure to direct the jury on mutual corroboration constituted a material misdirection, leading to the quashing of the convictions on heads (a) and (b) of the sexual assault charge.

The sentence for the sexual assault charge was reduced from two years to eight months imprisonment, reflecting the deletion of significant portions of the libel.

No new legal precedent was established; rather, the decision reaffirmed the existing principles requiring proper jury directions on corroboration and mutual corroboration in omnibus charges involving multiple offences.