APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: C604/98
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Appellant: Gebbie; Allan McDougall & Co.
Respondent: Gray, A.D.; Crown Agent
16 August 1999
On 21 September 1998 the appellant was found guilty of a number of charges. He has appealed against his conviction on a number of grounds.
The first three grounds relate to the first charge, which was a charge of attempted robbery in the following terms:
"On 2 May 1998 at the premises of Bearsden Post Office at 27 Roman Road, Bearsden, while acting with another person and with faces masked and while you and said other person had with you loaded firearms, you did throw a spade through a window of said premises with the intention of entering said premises and robbing a person or person within of money from the safe within said premises and, by these means, you did attempt to rob Daniel Cyril Docherty, Post Master of said premises, of a sum of money".
The Post Master, who lived in a flat above the Post Office, gave evidence that on that date the Post Office was due to open at 9 a.m. He came downstairs at about 8.40 a.m. and turned off the alarm in the office area. There were two safes, each of which had a separate alarm. He saw a yellow van, the size of a transit van, moving very close to a side window of the Post Office and stopping there. He thought that the side of the van was about six inches from the wall of the Post Office. A few seconds later a shovel came through the window and he heard the smash of breaking glass. He triggered the alarm on one of the safes. He also heard a woman screaming and shouting. He did not see the occupants of the van at any stage. He thought that the van had had a sliding door. After the van left, a shovel was found on the floor of the Post Office. A passer-by gave evidence that she was outside the Post Office at about 8.40 a.m. She saw a yellow van come round the corner of the shop and stop in the lane beside the Post Office, close to the wall of the building. She saw a man kneeling on part of the van and the windowsill of the Post Office. He had a spade which he threw at the window of the Post Office and she heard the noise of breaking glass. She then heard an alarm sounding and the van drove away. Before it left she saw a man wearing a black balaclava running round the back of the van and jumping into it. A counter clerk at the Post Office gave evidence that she was approaching the premises at about 8.45 a.m. She saw a yellow van, like a transit van, which had stopped close to the corner of the Post Office. The van had sliding doors. She saw a man dressed in black get out of the van on the passenger side. The van moved into the lane beside the Post Office. She heard an alarm going off. She also heard a woman screaming, and she saw the broken window. There were two safes in the Post Office, but neither of them was open at that time. She also saw a spade lying on the floor of the Post Office inside the broken window. None of the Crown witnesses saw any firearms.
On 22 May 1998 the appellant, who had been apprehended in regard to a charge of breaking into a school, was interviewed by two police officers and was asked if he had been involved in any other crimes. He told them that he had "done a Post Office in, it was either Milngavie or Bearsden". It had, he said, taken place on a Saturday morning at 8.45 or 8.50 a.m. two or three months earlier. He and another man had got into a yellow van, like a transit van, which had a sliding door at the side. The other man was driving and the appellant was in the back of the van. They had with them a gun and a shotgun and they were both wearing black balaclavas. They drove up a lane beside the Post Office where two of the Post Office windows were situated, the second window being behind the Post Office counter. The appellant slid the door open and an alarm went off. The driver jumped into the back of the van, picked up a shovel and put the window in. The safe in the Post Office was meant to be opened and money taken from it. Having smashed the window the other man was ready to jump in. He was looking about and a woman in the Post Office started screaming. The other man then drove off. They had expected the safe to be open but it had not been. The plan had been that the appellant was to go into the Post Office and take the money from the safe. He was to take a bag and fill it with money while the other man stood at the window with the gun. As regards the persons who were in the Post Office, "hopefully they wurnae gonnae move". He said that the gun and the shotgun were real and that the gun had four bullets in it and the shotgun had one cartridge in it.
For the appellant, Mr. Gebbie submitted that the trial judge had erred in law in repelling the submission that there was no case to answer in respect of charge 1. In developing that submission he presented two main arguments. The first was that the evidence relied upon by the Crown did not amount to evidence of attempted robbery. Thus the evidence as to the statement made by the appellant to the police could have been regarded by the jury as a confession of housebreaking with intent to steal. However, that was not part of the Crown's case. It could have been regarded as a confession of housebreaking with intent to commit robbery. However, there was no such offence (H.M. Advocate v. Forbes 1994 SCCR 163). Mr. Gebbie sought to support these submissions by pointing out that, on the evidence, neither of the men had entered the premises. The shovel had been put through the window in the staff area of the Post Office. At that time the Post Master, who was the only member of staff on the premises, was not in that area which was divided off from the public area by a counter. Accordingly there was no one who could be intimidated in the part of the premises into which the shovel had been thrown. The throwing of the shovel and the wearing of balaclavas was consistent with housebreaking in conjunction with no more than an intent to rob.
In our view this submission was misconceived. There was sufficient evidence to entitle the jury to conclude that the crime of attempted robbery had been perpetrated. They were fully entitled to infer this from the actions of the men and the time at which they took place. According to the evidence the men arrived together in the van at about the time when staff would be expected to be present and opening the safe. The jury were entitled to infer that the putting of the shovel through the window was not merely to enable entry to be obtained to the premises but also to constitute part of a display of force which could be expected to have intimidated members of the staff who were present in the premises at the time. Consistently with this, the use of balaclavas pointed to an attempt to conceal the identity of the perpetrators from those members of staff. In these circumstances there was evidence which the jury were entitled to treat as demonstrating that, while robbery had not been carried out, it had been embarked upon to that extent.
The second argument which Mr. Gebbie presented was directed to the statement which the appellant made to the police. He explained that it was not in dispute that he had made this statement to the police officers. His position, as explained at his judicial examination, was that he had overheard this account while he was at premises which were being frequented by drug abusers, and that he had given it to the police after they offered him an inducement in the form of his release from custody. These circumstances, which were disclosed in the course of the Crown case, meant that what he told the police officers did not constitute special knowledge. Such knowledge required to be knowledge which could only have come from someone who was a perpetrator of the crime. Mr. Gebbie also pointed out that there were a number of discrepancies between the account given by the appellant to the police and the evidence given by other witnesses as to what happened. The appellant had told the police that the incident had taken place two to three months before, and was unable to say whether it was in Bearsden or Milngavie. He said that the woman who had screamed was inside the premises, and gave a description of her which did not tally with that of the passer-by. He said to the police that the spade had been left in the van. The witnesses had seen only one person and had not seen any firearms at any stage.
We are entirely satisfied that the jury had before them evidence of statements made by the appellant which they were entitled to regard as evidence that the appellant displayed the knowledge of the circumstances of the crime which would be possessed by a perpetrator. The fact that the jury heard that at judicial examination he gave a different explanation did not affect the position. Even if he had given evidence to the same effect, which he did not, it would have been for the jury to decide whether that evidence led them to reject what he had said to the police. On no view did his statement at judicial examination change the nature of what he said to the police, the assessment of which was a question for the jury. As regards any discrepancies between the detail contained in his statement to the police and the evidence given by other persons who witnessed the incident it is useful for us to recall the remarks of the Lord Justice Clerk (Wheatley) in Gilmour v. H.M. Advocate 1982 S.C.C.R. 590. In that case, which was concerned with a statement by the accused to police officers which was said to display special knowledge of the circumstances of the crime, he stated at page 607:
"Where a statement contains points of identity and points of discrepancy, then, as previously indicated, it is for the jury to decide whether they are going to accept and proceed upon the points of identity, and if they do so the only question then is whether these points are sufficient in law to constitute corroboration of the admission of guilt. In the instant case the points of identity, if accepted, were clearly sufficient in law, and the judge very properly left the issue to the jury".
The same remarks apply to the present case. Even when one disregards the points of discrepancy to which Mr. Gebbie drew our attention, it is plain that the remaining parts of the statement contained ample material to entitle the jury to conclude that they were made by someone who had the knowledge of a person who was present as a perpetrator at the time when the crime was committed.
The remaining ground of appeal presented by Mr. Gebbie relates to all the charges of which the appellant was convicted. We have already mentioned the first charge. Charges 2-7 were relatively minor charges, consisting of one charge of breaking into premises with intent to steal, two charges of breaking into a school and stealing therefrom, one charge of attempted housebreaking with intent to steal, one charge of forcing open a lockfast van and stealing therefrom and one charge of theft. This ground of appeal arises in the following way. The shift manager at the bakery, which was the scene of the theft referred to in the last charge, gave evidence that he was working in the bakery yard and saw the appellant standing at the back of a delivery van with a bag of bakery products in his hand. The charge was that he had stolen them from that van. They had been part of the stock in the van which had not been locked. The witness said that he took the appellant into the bakery premises and told the security guard to telephone the police. According to the report by the trial judge, the next questions and answers were as follows:
"Advocate Depute: Before the police arrived, did he say anything to you?
Witness: He asked to be let go. I says I'm afraid it's not company policy.
Advocate Depute: So he said what?
Witness: He asked to be let go - sorry.
Advocate Depute: Remember his precise words?
Witness: Gonnae let me go - something about him just out after three months - sorry - that's what he said".
In his report the trial judge informs us that no objection was taken to any of these questions and no further reference was made to these matters in the course of the trial. No motion to desert was made. In this ground of appeal it is maintained that there was a miscarriage of justice in respect that the Crown had elicited from the witness a reference to a previous conviction of the appellant, contrary to section 101(1) of the Criminal Procedure (Scotland) Act 1995, which is in the following terms:
"Previous convictions against the accused shall not be laid before the jury, nor shall reference be made to them in presence of the jury before the verdict is returned".
The circumstances in which the witness came to refer to the fact that the appellant had been in prison were not explored before the trial judge. However, Mr. Gebbie accepted that in questioning the witness, the Advocate depute had not anticipated that he would give that evidence. In this court the Advocate depute elaborated on this by explaining to us that, in the light of a police statement, the Advocate depute at the trial had expected the witness to state that the appellant had said to him: "Can you let me go and give me another chance". The reference to his being "just out after three months" came as a complete surprise to the Advocate depute. He would not have phrased his question in the way in which he did if he had known that the witness was liable to refer to that matter.
In his approach to this ground of appeal Mr. Gebbie founded on the appellant's right to a fair trial in accordance with Article 6(1) of the European Convention on Human Rights and on the presumption of innocence in accordance with Article 6(2). As regards the fairness of the trial he referred to the principle of the equality of arms, and in that connection he founded on the observation of the European Commission on Human Rights in Reinhardt and Slimane-Käid v. France (1998) 28 E.H.R.R. 59 at para. 123, where they stated that the Convention was intended to guarantee not rights that were theoretical or illusory but rights that were practical and effective. Mr. Gebbie submitted that where the questions put by the prosecutor had led to the disclosure of a previous conviction, the accused's right to a fair trial had been violated, and it did not matter whether the prosecutor had acted intentionally or negligently in this respect. As regards Article 6(2), Mr. Gebbie accepted that there was no rule that it would be breached by the revelation of an accused's past criminal record. On the other hand, where there was a rule of domestic law against the disclosure of a previous conviction it was in accordance with European decisions to treat the breach of that rule as a violation of Article 6(2).
The central question in regard to this ground of appeal is whether there was any breach of section 101(1) of the 1995 Act which forms the only stated basis of the ground of appeal. It was plain from the way in which Mr. Gebbie advanced his arguments that he treated the mere fact of the disclosure of a previous conviction as a breach of the subsection. However, it is well recognised that the subsection and its predecessors are directed to the conduct of the prosecutor. In Deighan v. MacLeod 1959 J.C. 25 the Lord Justice Clerk (Thomson) at page 29 said:
"The assumption of the provisions is that somebody who is exercising control over the trial is in a position to lay the prohibited information before the court. There is an injunction clearly laid on the prosecutor, and if the prosecutor deliberately flouts it, then as the cases show, a conviction cannot stand. Where, on the other hand, in answer to a properly framed and competent question, a witness ultroneously includes in his answer something pointing to the accused's having been previously convicted, the injunction is not infringed because the contravention is not the act of the prosecutor and he cannot be regarded as having laid the information before the court...intermediate cases may be difficult but it can safely be said that prosecutors must be very careful, and if by carelessness in framing a question or by pressing a witness too far despite the sort of warning signs one sometimes sees, the prohibited information is allowed to come out, then the prosecutor must pay the price, and rightly so, because as a rule the prosecutor knows quite a bit about the witnesses and their means of knowledge and ought to be on his guard".
There are numerous examples in the reported cases of instances where the court has had to decide whether the disclosure did or did not come about through fault on the part of the prosecutor. In the present case the question was properly framed by the Advocate depute in the light of the information before him, which contained nothing to indicate that the witness was liable to give evidence about the appellant having a previous conviction. It follows that there was no breach of the statutory provision.
Mr. Gebbie did not persuade us that there was anything in the law relating to the interpretation and application of Article 6(1) or Article 6(2) which required that disclosure by a witness in answer to a question put by the prosecutor that the accused had a previous conviction automatically involved the infringement of the accused's right to a fair trial or his right to be presumed innocent until otherwise established.
In these circumstances we consider that this ground of appeal is not well-founded.
The appeal against conviction accordingly is refused.