Scottish High Court of Justiciary Decisons

TERRY KENNEDY v. HER MAJESTY'S ADVOCATE [1999] ScotHC 69 (16th March, 1999)

The appellant appeals against convictions on charges of assault and robbery and fraud by using a credit card stolen from the complainer in the robbery charge. The case against the appellant was that he was acting on an art and part basis with his co-accused French, who was convicted of robbery and pled guilty to the charge of fraud. The grounds of appeal are that there was insufficient evidence to establish the crime of robbery and that on both charges there was insufficient evidence to establish that the appellant was acting in concert with the co-accused.

The circumstances were that the complainer was walking home along Melville Drive, Edinburgh shortly before midnight on 11 March 1997, when he was approached by the co-accused French. French grabbed the complainer by the neck, placed a knife against his stomach and demanded that he hand over his cards and his wallet. The complainer panicked and paused while, or shortly before, handing over his wallet. His evidence then was that as he did so he saw another man walking down the steps from Melville Terrace to Melville Drive towards him. The witness formed the impression that the second man was with the first and that he was party to a plan. The way the matter is put by the sheriff in his charge to jury is that

The complainer identified the appellant as being the second man. The complainer then returned home, where he told his flatmate what had happened, and the police were called. Both the flatmate and the police officer who attended described the complainer as being pale, shaken and visibly upset. The next event took place at the BP Service Station in Barclay Place, Edinburgh, which is fairly close to the locus of the first charge. About 3.27 a.m. on 12 March 1997 the co-accused entered the shop of the service station. He requested various goods and tendered a Highline card in payment. That card was personalised in the name of the complainer. After the card had been presented, the appellant entered the shop and had a short conversation with the co-accused. He then left the shop, taking with him the goods which had been purchased. The attendant, having ascertained that the card had been rejected, told the co-accused that it had been rejected and cut it in two. The appellant was not present either when the card was tendered or when the card was rejected.

Miss Scott on the appellant's behalf argued that in relation to the crime of assault and robbery, there must be corroboration of the use of force or violence. She submitted that the evidence of distress could only corroborate the fact that some untoward event had occurred and this could have been the theft of the card. Distress was insufficient to corroborate the fact that force or violence had been used. She referred to Smith v. Lees 1997 J.C. 73 for the proposition that distress cannot corroborate a complainer's evidence of what occurred. That case also approved the cases of Mongan v. H.M. Advocate 1989 S.C.C.R. 25 and Bennett v. H.M. Advocate 1989 S.C.C.R. 608.

In Mongan the circumstances were that an elderly lady living alone was the victim of a break-in and theft of her handbag. In addition, she gave evidence that she was gripped by the throat by the intruder and threatened before he took her handbag. The intruder was in fact caught by the police nearby and seen to drop the complainer's handbag. The only corroboration of what occurred in the house came from the distress of the complainer. It was held that, where there had been a housebreaking and theft of a handbag, inevitably there would be some distress and accordingly, the evidence of distress could corroborate that much but would not necessarily corroborate the allegation of assault. Therefore, a conviction for theft by housebreaking was substituted for the conviction of assault and robbery.

Similarly, in Bennett the appellants were charged with assaulting a taxi driver and robbing him of various items. The corroboration came from the distress of the complainer, but there was also found, at or near the locus, a Stanley knife, which is the weapon which the complainer said was presented at him. It was accordingly held that there was sufficient corroboration of the complainer's evidence of being robbed, but it was also said that the incident of the removal of the complainer's taxi might itself be enough to distress the complainer to the extent of excluding that distress as providing corroboration for the assault.

Finally, counsel referred to MacKay v. H.M. Advocate 1997 S.C.C.R. 743. The circumstances there were that the appellant was charged with assaulting the complainer, pulling him into a lane, threatening him there and robbing him of a ring. The appellant was subsequently found in possession of the ring. The only corroboration of what happened at the locus came from witnesses who saw the complainer and the appellant go into the lane, heard shouting and saw them emerge from the lane, at which time the complainer was in a distressed state. The case was somewhat curious in that the sheriff directed the jury that there was insufficient evidence to corroborate any assault in the lane but, nevertheless, left robbery to them. In any event what was held on appeal was that there was sufficient evidence to corroborate the complainer's account of what happened. This was on the view that when the complainer went into the lane he was wearing a ring on his finger and when he emerged from the lane he was no longer wearing that ring. There could only be two possible alternatives, either that he handed the ring over voluntarily or that he handed it over by reason of violence or intimidation. There was also the evidence of the shouting in the lane which might indicate that there was some intimidation going on, and also the evidence of the complainer's distressed condition. The court took the view that the distress could legitimately be used to show the state of mind of the complainer on the crucial question of whether he had handed the ring over voluntarily or whether it had been taken from him by means of violence or intimidation.

Miss Scott submitted that these cases were examples of the application of the rule laid down in Smith v. Lees to the effect that evidence of distress cannot, by itself, corroborate a complainer's account of what happened. As there is no other evidence in the present case as to what happened in Melville Drive there is insufficient corroboration of the complainer's account.

We agree that evidence of distress by itself cannot corroborate the facta probanda spoken to by a complainer. That was decided in Smith v. Lees, a case of indecent assault. In a case where there is a witness who gives direct evidence of the facta probanda, the Crown may look for corroboration of that direct evidence in circumstantial evidence. Evidence of distress may form part of that circumstantial evidence and, by itself, it will at least support the direct evidence of a witness to the effect that something untoward occurred. In Smith v. Lees, before this court, the Crown sought to find corroboration of the facta probanda only in the evidence of the complainer's distress (see 1997 J.C. at p. 76C). That being the only corroborating evidence, the court held that, by itself, it could not provide corroboration of the complainer's evidence about the nature of the indecent assault. In many cases, such as the present, however, there will be evidence of other surrounding circumstances. The amount of circumstantial evidence will vary, of course, from case to case, and, as the cases show, the decision as to whether the circumstantial evidence provides the necessary corroboration of the direct evidence may vary accordingly. The approach which a court must adopt in determining whether the circumstantial evidence is capable of corroborating the direct evidence was, however, authoritatively settled in Fox v. H.M. Advocate 1998 J.C. 94: the court must have regard to all the available circumstantial evidence, including the evidence of distress, and decide whether it is capable of supporting or confirming the available direct evidence as to the facta probanda. It is then for the jury or the judge in a summary case to decide whether in fact they find in the circumstantial evidence the necessary support or confirmation of the direct evidence. Since there is no doubt about the approach which we must adopt, we do not find it helpful to explore in detail the decisions cited to us. It is sufficient if we say that, in our view, the present case is closer to MacKay than to the other cases to which Miss Scott referred.

In the present case in his evidence the complainer gave an account of being robbed of his wallet containing his credit card. There was other evidence to the effect that the appellant's co-accused had tried to use the complainer's card to pay for goods in the petrol station some time later. The appellant was present talking to the co-accused and took the goods out of the shop to the car, although he was not present when the co-accused tried to pay for them with the complainer's card. That was evidence from which the jury would have been entitled to infer that the appellant and his co-accused had obtained the complainer's wallet from him at the relevant time. They would therefore have been entitled to find in that evidence support for the complainer's account that the appellant and his co-accused removed his wallet from him. It was never suggested at any stage in the case that the complainer had been the victim of a pick-pocket. That being the case, it would have been open to the jury to infer from the complainer's distress not simply that his wallet had been removed from him against his will, but also that his will had been overcome by force or the threat of force (cf. Smith v. Lees 1997 J.C. at p. 90B-C per the Lord Justice General and per Lord McCluskey at p. 106E-F). If the jury did indeed interpret the circumstantial evidence in this way, then it was open to them to find in the totality of that circumstantial evidence support and confirmation of the complainer's direct evidence that his wallet had been removed from him by force and the threat of force. For these reasons we are satisfied that the circumstantial evidence was capable of providing the necessary corroboration of the complainer's evidence. The sheriff was accordingly correct to reject the submission that there was no case to answer. For these reasons we reject the first ground of appeal.

As far as the second ground of appeal is concerned, counsel argued that there was no corroboration of the complainer's impression that the appellant was part of a plan or was acting along with the co-accused. The evidence relating to the transactions in the petrol station could not provide any form of corroboration, because the evidence clearly was that the appellant was not present, either when the stolen card was tendered or when it was rejected. In these circumstances, at best for the Crown, there was evidence that the appellant was seen on the fringes of the events relating to charge 1 and that he was in the company of the co-accused during an immaterial part of the events in charge 2. This evidence was therefore insufficient to establish that the appellant was acting in concert with the co-accused. Again, in our view, what has to be looked at is the evidence as a whole. There is no doubt on the evidence that the appellant and the co-accused had been together on their journey from Peebles to Edinburgh. There was the evidence of the complainer in charge 1 that he clearly formed the impression at the time that the appellant was acting in such a manner as to show that he was part of a common plan. There was evidence that the card, which was stolen from the complainer, was used in the petrol station and that at that time the appellant was having a conversation in the shop with the co-accused, even if he was not present at the moment when the card was tendered. The appellant also removed the goods from the shop while the co-accused was attempting to pay for them with the use of the stolen card. Proof that an accused person is acting in concert with a co-accused very often has to be drawn as an inference from the whole surrounding facts and circumstances. Looking at the whole circumstances of this case we are quite satisfied that the jury would be entitled to draw the inference that the appellant and the co-accused were acting together, both in the removal of the credit card and the attempted use of it. In these circumstances we consider that the second ground of appeal must also fail.