APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C521/98
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION and SENTENCE
KEVIN BARRY CANNON
HER MAJESTY'S ADVOCATE
Appellant: Hamilton; Drummond Miller
Respondent: Doherty, Q.C., A.D.; Crown Agent
6 October 1999
The appellant is Kevin Barry Cannon who stood trial at Airdrie Sheriff Court on an indictment which included a charge that he and his co-accused John Cochrane assaulted an elderly lady, demanded money from her, repeatedly struck her on the head with a candlestick and robbed her of a number of items. Both were convicted, the jury adding a rider in the case of Cochrane to the effect that he was acting under pressure. Both Cannon and Cochrane appealed against conviction, though on entirely different grounds and at present we are concerned only with the appeal of Cannon. His counsel accepted that there was sufficient evidence to convict him of theft of the items but submitted that there was insufficient evidence to convict him of assault and robbery. Since there was admittedly sufficient evidence to convict the appellant of theft, there was a case against him to answer and accordingly no submission was made at the end of the Crown case. The appellant's co-accused gave evidence and this became the mainstay of the Crown case that the appellant was guilty of assault and robbery.
The basic picture was not in dispute. The complainer, who lived alone, had returned home from work in the afternoon. She made herself a cup of tea and fell asleep with the door unlocked. She woke up to find Cochrane standing over her with her candlestick in one hand and a cushion in the other. He told her to hand over her purse and, when she declined to do so, he struck her on the head with the candlestick and forced her to hand over her purse. When the appellant spoke to the police he gave them information which led to the finding of the purse. He took the greater part of the proceeds of the crime.
Cochrane's evidence was to the effect that the appellant was the instigator of the whole episode. According to Cochrane it was the appellant who pointed out the complainer's house and told him to go into it and rob the complainer. The appellant threatened him to make him comply with his instruction. Counsel for the appellant accepted that Cochrane's evidence was evidence which pointed to the appellant having been involved on an art and part basis in assaulting and robbing the complainer. The appellant made a statement which was given in evidence. As quoted by the Sheriff in his charge it said inter alia:
"Well, we had walked by the house and we seen the old woman and she was sleeping and all the lights were out and the telly was on and we looked in the windae and I said to him, eh no, he says it's a good place. I says right, I'll tell you what to do and I telt him if she's sleeping, if he thinks she's sleeping, just hunt about and then look for her purse and then come straight down and he says right. So I walked away at the wall and he went in and he came back out and he had a Sega Master game. I put it on the side of the wall, eh, we [sic] went back in again and he had the keys and I telt him to chuck them away and I think he chucked them away, I don't know, and he went back in and that's when he came running out and he telt me to come in so I walked in, and I was in the kitchen and the purse was beside her and he says, I cannae see, try and grab it, so I opened the back door and I bolted out before him and he ran out behind me and he says I've got it and then we ran back up the back of the house and we were sitting and we opened the purse and all that ...."
It is plain from the context that the "we" which we have highlighted in the passage should read "he".
That evidence plainly showed that the appellant was involved in the plan to steal from the complainer and that he was indeed in the kitchen of the house and told Cochrane to try and grab the complainer's purse. The Advocate Depute submitted somewhat tentatively that it would have been open to the jury to infer from this account that he had been a party to the robbery which took place, but the Sheriff directed the jury that there was no admission in anything that the appellant said to the police of any involvement in any violence towards Mrs. Cairns and indeed that there was no reference to any knowledge on his part of such violence. We agree with that direction. But in his report the Sheriff says that he considered that the fact that the appellant was just outside the house when Cochrane assaulted the complainer "was adequately supportive of Cochrane's evidence to entitle the jury to convict the appellant of the full charge if they were so minded." Even if, as his account might suggest, the appellant was actually in the house or running out of the house when the assault and robbery took place, his mere proximity to the events could not, however, in itself permit the jury to infer his participation in them. Nor, as the Sheriff appears to have thought, could the appellant's recent possession of the proceeds of the crime be a basis upon which his complicity in robbery rather than theft of those proceeds could be inferred.
That being the whole of the evidence against the appellant on this aspect of the case, we are satisfied that the Sheriff erred in directing the jury that they were entitled to convict him of assault and robbery. We shall accordingly quash the conviction and substitute a conviction of theft. In those circumstances it is necessary to consider what the appropriate sentence for the conviction of theft should be and, for that purpose, we shall order fresh reports and continue the appeal so that we may deal with the matter of sentence in the light of those reports.