Scottish High Court of Justiciary Decisons

JOHN ADAMS v. HER MAJESTY'S ADVOCATE [1999] ScotHC 1 (6th January, 1999)

The appellant is John Adams who went to trial on an indictment libelling three charges of assault and robbery. He was acquitted of the first two charges and convicted of the third charge. He was sentenced to 8 years imprisonment. He originally appealed against that sentence but, at the outset of the hearing of his appeal, Miss Scott indicated that he wished to abandon that appeal and we allowed him to do so. The appellant also appealed against his conviction on the ground that the trial judge erred in rejecting the defence submission that there was no case to answer because the evidence led on behalf of the Crown was insufficient. At the trial there was no real dispute that the events in question had taken place; the defence contention was that the appellant had not been involved. The crucial question is, therefore, whether there was corroborated evidence identifying the appellant as one of the persons who had carried out the robbery in Charge 3.

The robberies all took place over a period of roughly five months in central Glasgow. There were similarities among them. In each case there was evidence purporting to identify the appellant as being involved in the incident. In certain respects, at least, the Crown relied on the Moorov doctrine and the judge directed the jury accordingly.

Charge 3 related to an incident outside the Clydesdale Bank in Bath Street at about 7 p.m. on the day in question. The complainer and another young lady approached the night safe, when two men came from behind, grabbed hold of them and struggled with them. The struggle ended with one of the girls lying on the pavement. The two men ran away. Neither the complainer nor the young lady who accompanied her could identify her assailant. A couple were present, however, when the incident occurred. The lady, Miss Frances Rooney, identified the appellant, while the gentleman, Mr. Thomas Graham, though unable to identify the appellant, had indicated at an identification parade that the appellant was similar to the person who had carried out the robbery. Since the jury acquitted the appellant of the other two charges, it would not, of course, have been open to them to rely on the Moorov doctrine in order to find the necessary corroboration for conviction on Charge 3. The jury were therefore entitled to convict the appellant only if the evidence of Mr. Graham could provide the necessary corroboration of Miss Rooney's evidence.

The evidence of Frances Rooney identifying the appellant as one of the assailants was clear. As was explained in Fox v. H.M. Advocate 1998 J.C. 94, if the jury accepted Miss Rooney's evidence, they still required to find evidence which supported or confirmed her evidence identifying the appellant. It has been recognised in previous cases such as Ralston v. H.M. Advocate 1987 S.C.C.R. 536 and Nelson v. H.M. Advocate 1988 S.C.C.R. 536 that evidence that an accused resembles the perpetrator may corroborate clear evidence from another witness actually identifying him as the perpetrator. Miss Scott did not suggest that this was incorrect in principle. Rather, her argument was that on the facts of this case Mr. Graham's evidence did not actually provide the necessary support or confirmation to corroborate Miss Rooney's evidence.

According to his account, Mr. Graham had been present when the two young women had been assaulted. He had seen two men approach them, grab hold of them and struggle with them. One of the girls landed up on the ground. Mr. Graham gave evidence of seeing one of the two men kneeling beside the girl on the ground with something in his hand. Mr. Graham took a step forward and the man told him to "Get fucking back". When he saw the man with something in his hand, he was looking directly at him. It was, apparently this man whom the appellant was said to resemble. Mr. Graham was unable to specify what it was about the appellant which he recognised: there was, he said, just something which he recognised about the man. It was just his basic looks. He agreed in cross-examination that at the identification parade he had first said that there was nothing which he could say for definite and that it was "just basic looks". He agreed that he was very uncertain about everything.

Mr. Graham was cross-examined and, plainly, his evidence was open to challenge and to criticism. Those criticisms were deployed before the jury. One general criticism we did not find persuasive, however. Miss Scott criticised Mr. Graham's evidence, that the appellant resembled the man whom he had seen, on the ground that the witness had been unable to specify the basis of that resemblance. It is, however, a common experience for people to notice that someone resembles another person even though they cannot pinpoint exactly why that should be so. This is hardly surprising since resemblance depends on many factors - not just height or build or hair colour, but perhaps the manner of walking, the angle of a person's shoulders or something as small as a gesture, or a combination of any of them. One may often notice the resemblance without consciously registering the factors which give rise to it and so one might instantly recognise a friend or relative and yet be unable to itemise the components of their appearance. Indeed it may be the overall impression of similarity, rather than any particular set of factors, which really gives rise to the resemblance between two people. For that reason we are not impressed by criticism of Mr. Graham's evidence based simply on the proposition that he could not specify the factors which made him say that there was a resemblance between the appellant and the man whom he had seen taking part in the crime.

Whatever the criticisms which might properly be made of Mr. Graham's evidence, there is no doubt that, not long after the incident, he pointed out the appellant as being someone who, in his basic looks, resembled the perpetrator whom he had seen at close quarters. That evidence was available for the jury to consider and to evaluate. Miss Scott rightly emphasised, of course, that Mr. Graham had said that he was very uncertain about everything. This, she submitted, took the present case into the same class as Reilly v. H.M. Advocate 1981 S.C.C.R. 201 where this court had held that certain evidence of resemblance identification did not provide the necessary corroboration. As Miss Scott readily acknowledged, however, each case depends on its facts. Here we are satisfied that, if accepted by the jury, Graham's evidence could provide the necessary support or confirmation of Miss Rooney's evidence. Precisely because of the qualifications which Graham inserted into his evidence, it was, as the trial judge stressed, a matter for the jury to decide whether that evidence was strong enough to support or confirm her evidence. They were directed that, in reaching their decision, they should bear in mind the warnings which they had been given about the possible unreliability of identification evidence. The jury's verdict indicates that, having been so directed, they must have accepted Mr. Graham's evidence as corroboration of Miss Rooney's evidence and, that being so, they were in our view entitled to convict the appellant of Charge 3. His appeal against conviction must therefore be refused.