APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: C342/98
OPINION OF THE COURT
delivered by LORD BONOMY
HER MAJESTY'S ADVOCATE
Appellant: M. Scott; Blacklock Thorley
Respondent: Doherty, Q.C., A.D.; Crown Agent
25 June 1999
On 8 May 1998 the appellant was convicted by a majority verdict of a charge
"On 21 July 1997 in George Street, Edinburgh [he] did assault Brian Ward...and did present a knife at him and did strike him repeatedly on the head and body with a knife to his severe injury and to the danger of his life and did attempt to murder him".
The complainer spent the evening of Sunday 20 July 1997 in a number of bars with several colleagues. They left the final venue at closing time. In the alleyway leading from the club to George Street there was an incident involving the complainer and at least one of a group who were in a taxi. The appellant was part of that group. In a confrontation in which at least the complainer and the appellant were involved the complainer suffered two cuts to his scalp and two stab wounds, the material one being one in his left loin which injured the underlying kidney.
The appellant has appealed against his conviction on the ground that the trial judge misdirected the jury by misrepresenting the evidence on the crucial question of the identification of the appellant as the person who stabbed the complainer. At the trial there was no dispute that the complainer was assaulted. There was an issue over the more serious elements of the assault and whether the assault amounted to attempted murder. The most seriously disputed aspect of the Crown case, however, was the question of the identification of the appellant as the person who committed the stabbing. As the terms of the charge make clear, the assault alleged against the appellant related exclusively to the use of a knife. And as the trial judge stated, at page 20C of his charge, the main issue for the jury was the question of identification. He said:
"That question as you will appreciate is the most strenuously disputed aspect of the Crown case. For the Crown to succeed in obtaining a conviction of the accused, whether for assault, aggravated assault, or attempted murder, the evidence must satisfy you beyond reasonable doubt that the accused is the person who committed the stabbing".
Earlier at 17B he had said:
"You will appreciate that in this case there is a very sharp conflict of evidence and that conflict is for you the jury to resolve".
The evidence of the complainer was that the appellant emerged from a taxi, approached him and presented a knife at him. He attempted to kick the knife out of the appellant's hand but failed to do so. A struggle ensued between him and the appellant, in the course of which he felt what seemed to him at the time to be a punch to his lower back. He then found that he had been stabbed. He identified the appellant as the person with whom he had been engaged when he felt the blow to his back.
A colleague of the complainer, Derek Culbertson, gave evidence that he saw the appellant stab the complainer.
A knife was recovered nearby. It had blood which matched that of the complainer on its tip and blood which matched that of the appellant on its handle.
The appellant gave evidence. He admitted having been involved in a fight, but he denied having the knife and denied stabbing the complainer. He incriminated James McCormack. The appellant said that, when he got back into the taxi, he there saw McCormack with a knife. McCormack also gave evidence. Both he and the appellant said that the appellant's hand was cut in the course of his trying to take the knife from McCormack and that that explained the presence of his blood on the handle. McCormack also gave evidence that he had the knife both before and after the stabbing. He declined, however, to answer the direct question whether he stabbed the complainer.
In view of the fact that the appellant and McCormack gave an explanation for the presence of the appellant's blood on the knife, the eye-witness evidence of identification was vital. On that matter, beginning at page 22E, the trial judge directed the jury as follows:
"Now in this case the Crown relies first on eye-witness evidence to prove that the accused was the assailant. The complainer himself does not say that he saw the accused stab him, but he did say that the accused came out of the taxi with a knife in his hand, that he failed to kick the knife out of the accused's hand, that they then struggled, that he felt a punch as he put it, on his back and then was, had it pointed out to him by others that in fact he had been stabbed. If that is your recollection of the evidence, and it's your recollection that matters, and if you accept that evidence, it's open to you to regard it as pointing to the accused as the person who stabbed the complainer. The second string to the Crown's bow on this point is the evidence of the Mr. Culbertson who, to put the matter very shortly, said that he saw the accused stab the complainer twice in the back".
The trial judge then gave familiar directions to the jury about exercising care in scrutinising the reliability of eye-witness identification evidence of strangers. Having mentioned a number of factors that the jury should bear in mind, such as the state of the light, the length of time that each of the witnesses had in which to see and form an impression of the person who stabbed the complainer, and having rounded off the list with these words, "and any other factor that you think may have a bearing on whether the identification, identifications can be relied on", the trial judge added this at 24E:
"On the other hand you also have to consider the degree of certainty that each of the witnesses separately expressed about their identification, and also the way in which that identification developed, beginning with the picking out, by each of those two separately, of a picture of the accused from a reasonably substantial number of photographs shown to them by the police. It's for you to assess whether it is likely that both witnesses would make that same sort of mistake".
In fact there was no evidence of the complainer viewing photographs at all. In addition, while Mr. Culbertson gave evidence that he had picked out the appellant from a number of photographs shown to him by the police, a police officer who was present at the time gave evidence that Mr. Culbertson had identified a person in a photograph as very similar to the assailant and he was unable to say whether the photograph in question was a photograph of the appellant. Both the complainer and Mr. Culbertson had been invited to attend an identification parade but did not do so.
Miss Scott for the appellant invited us to regard the passage quoted above as a misdirection on a material issue in the trial amounting to a miscarriage of justice. In doing so she highlighted the fact that the trial judge, after opening the passage of his charge relating to the question of identification, and referring to the defence of incrimination of McCormack and the evidence of the appellant and McCormack relating thereto, said this at 12C:
"Now it's for you to assess all of that evidence carefully and decide whether you find it credible and reliable. In assessing the accused's evidence it's open to you, among other things, and I'm not attempting to be comprehensive in this, I'm just mentioning one particular thing. It's open to you to consider the differences between what he said when interviewed by the police and what he said in Court, as the Advocate Depute invited you to do, to see whether that helps you decide whether you believe and accept what he says".
He went on to refer to evidence of McCormack's criminal record. He then directed the jury that they must acquit if they accepted any part of that evidence which pointed to the accused's innocence, but that in the event that they rejected the defence evidence they should turn back to the evidence led by the Crown to decide whether that satisfied them beyond reasonable doubt that the appellant was guilty. At that point the trial judge summarised the evidence of the appellant and Culbertson as we have done above.
Miss Scott submitted that the misdirection, which followed immediately thereafter, should be viewed in the context of the trial judge having invited the jury, in evaluating the appellant's evidence, to consider the differences between the appellant's evidence in court and what he said to the police. In contrast to that the trial judge's inaccurate reference to the consistency between the identification of the appellant by the complainer and Culbertson from photographs and their identification of the appellant in court was a clear invitation to the jury to consider whether that comparison tended to support the reliability of the eye-witness identification by these Crown witnesses. This was not a situation where the trial judge in the course of directions to the jury placed a minor inaccurate gloss on the evidence. The misdirection consisted of a number of inaccurate statements. The jury were invited to consider "the way in which that identification developed, beginning with the picking out, by each of those two separately, of a picture of the accused", when in relation to one of the witnesses there had been no such picking out and therefore no development of his evidence of identification and, in the case of the other, it could not be said that quite independently by a similar route he had arrived at a similar firm position in court. The point was then stressed by the trial judge with these words, "It's for you to assess whether it is likely that both witnesses would make that same sort of mistake".
Miss Scott recognised that in other parts of his charge the trial judge stressed that decisions on questions of fact were for the jury alone to make, on the basis of their own recollection of the evidence. She maintained, however, that the misdirection was so material and on such a crucial issue that it could not possibly be cured by these familiar general directions.
The Advocate Depute acknowledged that there was a misdirection but insisted that it was confined to the misstatement of the position in relation to the evidence of the complainer. He maintained that the combined evidence of Culbertson and the police officer was not inconsistent with the trial judge's direction. In making that submission, however, he left out of account the comparison the trial judge invited the jury to make of the way in which the two witnesses arrived at the same firm position by similar, but independent, routes. In our opinion the advocate depute understated the materiality of the misdirection.
It was his further submission that the misdirection did not amount to a miscarriage of justice since there was clear and compelling evidence pointing to the guilt of the appellant. There was the evidence of the complainer and Culbertson identifying him in court. The forensic science evidence was that the blood of the complainer and the appellant was on the knife. In addition the appellant in his evidence acknowledged that he had been involved in a struggle with the complainer. He further submitted that, if the court were not prepared to refuse the appeal at this stage, it should obtain transcripts of the evidence of the complainer, Culbertson, the appellant and the police officer. It was his submission that the very fact that the appellant acknowledged that he was involved in a struggle with the complainer indicated that the question of identification of the appellant as the person who stabbed the complainer was less of an issue than Miss Scott submitted. The transcripts would clarify the extent to which the very acknowledgement by the appellant that he was involved in such a struggle simplified the question of identification.
We are not persuaded that obtaining transcripts would assist the court in determining this appeal. At no point in his charge did the trial judge suggest to the jury that the very acknowledgement by the appellant of his involvement in a struggle with the complainer would materially assist their determination of the issue of identification, in spite of the fact that he dealt with the issue of identification at length. It is plain from the charge, read as a whole and from the particular passages we have quoted, that the trial judge regarded the question of identification as the main issue for the jury to determine. Against that background his inaccurate account of the evidence about the complainer considering photographs, the relationship of that with a similar exercise in respect of Culbertson, and the fact that all of this was asserted shortly after the jury were directed to have regard to inconsistency between the appellant's evidence in court and what he said to investigating police officers, amounted to a material misdirection on a crucial issue for the jury. That misdirection was likely to have influenced the jury to reach a material judgment adverse to the appellant. It is accordingly our opinion that there was a miscarriage of justice. We accordingly allow the appeal, set aside the verdict of the trial court and quash the conviction. Since there is no question of the Crown being at fault and since the appellant has served just over one year of a seven year sentence of imprisonment imposed, we grant authority to the Crown to bring a new prosecution.