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“Material Misdirection” Appeal Upheld

HMA v Piotr Rysmanowski 2019

Mr Rysmanowski has had his appeal against sentence upheld after the Appeal Judges at the High Court in Edinburgh confirm there has been a ‘material misdirection’ by the trial sheriff. The appellant was convicted at Dumfries Sheriff Court of three instances that were libelled in the one charge of sexual assaults on a minor.

After being found guilty he was sentenced to two years imprisonment for this charge and a further four months for a breach of bail charge. This was appealed on the basis that only one of the instances the jury were capable of finding him guilt of. The appellant argued that of the three instances describes by the complainer all for which were in the one charge – only one of them could be corroborated. This was because only one incident was spoken to by a third party, the complainer’s mother. When the matter was appealed the sheriff confirmed that the he viewed the matters as a course of conduct with the difficulty being that the jury were not given any directions on this matter and how to apply the law here and this was required. Therefore, the appeal must be upheld.

In concluding the appeal Lord Justice General said: “It is apparent that this area of the law is continuing to cause difficulties in practice. It need not do so.” Lord Carloway added: “The fundamental problem in this case is that 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. This was a material misdirection which must result in the quashing of heads (a) and (b) of the conviction.” Therefore, the sentence was quashed and he was sentenced to eight months imprisonment.

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