APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Nimmo Smith
Appeal Nos: C429/97
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
THOMAS ASHTON and JAMES CARTER
HER MAJESTY'S ADVOCATE
Appellant: Duguid, Shead; Sinclairs, Winning McSporran
Respondent: Di Rollo, A.D.; Crown Agent
13 May 1999
On 7 April 1997 the appellants were found guilty of a charge of assault and robbery at a newsagent's premises in Edinburgh on 28 November 1996. The original terms of the charge were that they and a co-accused Paul Carter presented a knife and menaced the shopkeeper therewith, attempted to strike him with said knife, threatened him with violence, repeatedly demanded money, alcohol and cigarettes from him and robbed him of six bottles of vodka, five packets of cigarettes, three bottles of soft drinks and a quantity of lottery cards, and further threatened him with further violence if he reported the crime to the police. The jury convicted the appellants, under deletion of the allegation that they presented a knife and menaced the shopkeeper therewith, and attempted to strike him with it. They also deleted the specification of what had been taken from the complainer and substituted the word "items".
The shopkeeper gave evidence that he opened his shop between 7.35 and 7.40 a.m. About 15 minutes later the three accused came into his shop. No one else was there. The appellant Carter, to whom we will refer as "Carter", entered first and told him to put all his cigarettes into a bag and to open the till. The complainer said: "Just leave it", thinking that it was a joke. Then Carter said: "Come on, we are here to rob you". The appellant Ashton said the same thing. This was repeated two or three times. Meanwhile the co-accused Paul Carter was standing in the shop in front of the door, which was closed, blocking the way. Carter then said it was only a joke and bought some cigarettes and soft drink from the complainer. He also picked up a scratch card. Then Ashton said to the complainer: "Put all the cigarettes in the bag and open the till". He swore at him, and took out and opened a knife. He said that otherwise he would stab the knife in his eye. He was pointing the knife at him. He was frightened and said: "Just leave me alone". Ashton jabbed the knife towards his face, and the complainer rocked backwards. Carter asked him whether he wanted him to come round the back of the counter. The complainer said: "No, just take it easy. Tell me what you need". They then started demanding cigarettes and bottles of alcohol. They took packs of cigarettes, bottles of vodka and scratch cards. Ashton also took a bottle of juice. The complainer said that he had nothing in the till. As Ashton and Carter were leaving, the co-accused opened the door. They said to the complainer: "Look at our faces, you might need to tell the police". Carter said: "If you tell anybody, we'll come back and we'll stab you and we'll take your eye out". The knife remained in Ashton's hand throughout. After they left the complainer waited for about 3-5 seconds. He then locked the door and phoned the police. There was a girl who wanted to come in while he was locking the door. He signalled to her that the shop was closed.
In support of the evidence of the complainer the Crown relied on the evidence given by two schoolgirls who were going along the street on their way to school. The first intended to buy some juice at the complainer's shop. The second was going to do the same at another shop which was two doors further on. The first girl, who was 13 years of age, said that she saw the three accused standing about the area of the complainer's shop. Carter was inside the shop. One of the other accused, she was not sure which, was facing into the shop and standing "half in, half out" of the shop. The shop door was open. The other accused was standing against a railing at the side, a couple of paces from the shop and also looking into it. She did not go into the shop but went on her way with her friend to the next shop. When she was asked why she did not go into the complainer's shop, she said it was because she saw Carter "pointing at the man in the shop and the man was nodding". She went on to say that Carter was pointing at the cigarettes on the shelf behind the "ethnic guy"(the shopkeeper). He was nodding his head, refusing him. He looked frightened, "his face was all like screwed up". After she had been asked about the other two accused, she was asked why she did not just go into the shop. She relied: "Because one of them was standing in between the door and that and so I just chummed (her friend) to go for hers". When she was asked whether there was anything that made her not to want to go in, and change her intention, she said: "There was a lot of loud voices in the shop". She indicated that she was referring to Carter. When she was asked why the loud voice stopped her from going in, she said: "Because like they were shouting, and I thought I'd just leave it and I'd go down to Terry's first and come back up". It was angry shouting. She could not remember any words, she was just quickly walking past. She thought that she would go back after they had left. She went towards the other shop. She was entering the doorway and saw the three accused walking past, and she went straight back up to the complainer's shop. One of the accused had a big bottle of juice in his hands. They were smirking and laughing together. When she reached the complainer's shop she saw that he was locking it. He shouted that he would not let her in. His hand was shaking.
The second schoolgirl said that she saw the three accused at the shop. Carter was inside. Ashton was at the door, which was half open and half shut. He was "sort of half on the step and half on the pavement" facing into the street. The co-accused was at the railings, facing towards the shop. She had just a quick glance. Carter was pointing at the complainer "and then by that bit I was past the shop". Carter was speaking to him, pointing with his finger. The shopkeeper looked taken aback and frightened. It seemed like an argument about something. She went on into the next shop. When she came out she went back to the complainer's shop. Her friend was there. The complainer was on the phone to the police and seemed to be shaken.
It was not in dispute that the jury were entitled to convict the appellants of theft. What was in dispute was the conviction of the appellants of assault and robbery. Three points were argued.
The first was the submission made on behalf of Ashton that the trial judge had misdirected the jury in his remarks about evidence of distress. During his charge the trial judge stated at 39D-40B that they would have to decide what offence had been committed. He continued by stating:
"It depends on your view of what you make of the fear and distress which was evinced by the manager of the shop - assuming, that is, you so find it. And my direction to you about this is in these terms. If you think that he was upset, distressed and frightened in the manner described, you are entitled, though not bound, to find that that corroborates his own evidence that whatever occurred in the shop premises happened against his wishes. And if the jury takes that step, then you are entitled to infer that force, threats, the demonstration of a weapon were used if you so find. And that is my direction to you. If you took that view, ladies and gentlemen, you are entitled, though not bound, to conclude that the crime of assault and robbery took place involving all three or involving the first and second".
Mr. Duguid for Ashton founded on the decision in Smith v. Lees 1997 J.C. 73 in support of the proposition that evidence of distress by itself could not corroborate the facta probanda spoken to by a complainer. Mr. Duguid accepted that part of what was spoken to by the two schoolgirls was direct evidence as to what was happening to the complainer in the shop. While that evidence could be regarded as relating to a late stage in the perpetration of the assault and robbery, the remarks of the trial judge did not differentiate between what the schoolgirls witnessed at that time and what they said they witnessed later. Accordingly these remarks were too broadly expressed, and there was a danger that the jury had been content to rely on their evidence as to what they saw later.
In our view there is no substance in this criticism. The evidence given by the two schoolgirls was not confined to evidence of distress some time after an alleged assault. If that had been all that could be said about the evidence, it could have corroborated no more than that something untoward had happened. However, in the present case each of these witnesses was able to give direct evidence as to the threatening conduct on the part of Carter towards the complainer. Furthermore, in view of the extremely brief interval of time between the point at which the two girls passed the complainer's shop and the time when the first of them returned to it - which she put as being a matter of seconds - the jury would have been entirely justified in treating the evidence as to the state of the complainer when they returned as a continuation of what they had already seen happening before that interruption. In these circumstances we consider that there was no misdirection on the part of the trial judge.
The second point which was argued, and in this case by Mr. Shead on behalf of Carter, was that there was insufficient evidence to entitle the jury to find corroboration of the complainer's allegation of assault and robbery. He submitted that the evidence of the two schoolgirls was not consistent with that of the complainer. The question was whether the evidence of the schoolgirls could be treated as part of the incident to which the complainer had spoken. Mr. Shead pointed out that according to the schoolgirls only Carter was facing the complainer as they were passing the shop. If the effect of their evidence was that Carter was then threatening the complainer, this could not be fitted in with the evidence of the complainer who stated that the last stage was when both Carter and Ashton threatened him, before the co-accused opened the door for them.
In our view there is no merit in this submission. The question is whether the evidence given by the schoolgirls provided support for the substance of the evidence given by the complainer. It did not require to be consistent in every detail. The Crown case plainly was that they witnessed a late stage in the perpetration of the assault and robbery, and the jury were fully entitled to treat their evidence as providing that support.
The third point was the submission made by Mr. Duguid on behalf of Ashton that there was insufficient evidence to corroborate the evidence of the complainer as to Ashton's participation in the assault and robbery. Mr. Duguid pointed out that the complainer had described Carter and Ashton as leaving the shop together. The evidence of the two schoolgirls, if it was taken together, was that Ashton was standing at the open door. They did not say that he was doing or carrying anything. He was facing either into the shop or out of it. He was not doing anything to assist the actions of Carter. The Advocate depute submitted in reply that the complainer had given clear and unequivocal evidence as to Ashton's participation. While, on the evidence of the schoolgirls, he was not involved in a particularly active way, he was standing in the doorway, and the jury were entitled to accept the evidence given by the first schoolgirl that he was looking into the shop. She had given evidence that a reason why she decided not to go into the shop was because he was standing there. It also required to be borne in mind that the three accused had been together prior to the incident, and that one of the schoolgirls had described them as walking together down the street smirking and laughing together after the incident. Concert was often a matter of inference from the whole surrounding facts and circumstances. The fact that a person watched a robbery and ran off with the robber might provide sufficient evidence of art and part guilt. (Stillie v. H.M. Advocate 1990 S.C.C.R. 719).
In our view the jury were presented with evidence of facts and circumstances which they were entitled to regard as corroborating the clear evidence of the complainer as to the participation of Ashton in the assault and robbery. This was not a case in which a witness merely gave evidence that an accused was one of a number of bystanders present during the course of an incident. No one else was present in or at the door of the shop other than the complainer and the two appellants. The jury were entitled to treat the evidence of the two schoolgirls as providing independent support for the conclusion that Ashton was lending reinforcement to Carter's intimidation of the complainer.
In these circumstances the appellants appeals against conviction are refused.