Scottish High Court of Justiciary Decisons

JAMES ANTHONY MACK v. HER MAJESTY'S ADVOCATE [1999] ScotHC 78 (25th March, 1999)

On 12 January 1996 the appellant was convicted, by a unanimous verdict of the jury, of a charge of attempting to defeat the ends of the justice. According to the terms of that charge it was stated, in brief, that, knowing that he was required to attend as a witness at the High Court in Glasgow on 14 September 1995, having received a citation of 30 August 1995 at his home address of 40 Barmulloch Drive, Glasgow, he took various steps to avoid his attendance as a witness. It was stated that on 13 September 1995 he pretended to a postal officer at Springburn Post Office in Glasgow that he was Robert John McQuade Penman, born 21 October 1960, and had obtained a British visitor's passport in that name, and that thereafter at Glasgow Airport he made similar pretences, obtaining an air ticket from Glasgow to London Gatwick in that name and thereafter presenting a visitor's passport to police officers, all in an attempt to conceal his true identify and travel furth of Scotland thereby to avoid attendance as a witness.

The only ground of appeal against conviction which was argued before us was that the sheriff erred in repelling the appellant's submission that there was no case to answer. It is not in dispute that the Crown required to prove that the appellant took the steps set out in the charge in the knowledge that he had been cited to attend as a witness on 14 September 1995. Accordingly the question is whether at the close of the Crown case there was sufficient evidence to entitle the jury to reach that conclusion.

Mr McBride on behalf of the appellant drew our attention to the summary given by the sheriff of the evidence given by Hugh Ward and George McCulloch, process servers who attended at Flat 1/2, 40 Barmulloch Road, Glasgow, on 30 August 1995 in order to serve a citation of the appellant as a witness in the High Court trial. Mr Ward gave evidence that when they attended at the flat, which had the name "Mack" on the door, the door was opened by an elderly woman. When she was asked if James Anthony Mack stayed there she said that he was not at home. She identified herself as being his mother, and agreed to take the citation and to give it to him. Mr McCulloch gave evidence as to hearing the conversation between Mr Ward and the lady, who identified herself as Mr Mack's mother. Mr McBride pointed out that in her evidence the appellant's mother denied receiving any citation and passing it on to her son. Mr McBride said that even if the jury had disbelieved her evidence that the citation had not been handed to her, there was nothing to contradict her clear evidence that she had not passed any witness citation to the appellant. Mr McBride went on to refer to the evidence given by the postal officer, David Kelly, who identified the appellant as the applicant for the visitor's passport; and the evidence of Gordon Williams, Assistant Procurator Fiscal, who gave evidence that the appellant had not attended the High Court on 14 September 1995. Acting on information he instructed that urgent enquiries be made to trace the appellant and in due course he instructed police officers to detain the appellant at Glasgow Airport. Detective Constable David Campbell, who was stationed at Glasgow Airport, gave evidence identifying the appellant as a man who claimed to be Robert Penman, residing at Flat 2/1, 40 Barmulloch Road, Glasgow. He had raised suspicion because of the large quantity of cash which was being carried by him in the security area at the airport. Reference was also made to the evidence given by Tracy Caldwell, a former girlfriend of the appellant, who stated that following her trip to Dundee with the appellant on or about 11 September 1995, the appellant returned to stay with his mother at 40 Barmulloch Road.

In our view there was ample evidence to entitle the jury to infer that, when acting as he did, the appellant was aware that he had been cited to appear as a witness at the High Court trial. There was no direct evidence to this effect. However, there was, in the first place, the evidence given by the two process servers to which we have already referred. In the second place there was evidence as to the appellant staying, or stating that he stayed, at Flat 2/1, 40 Barmulloch Road. We have already referred to the evidence given by the postal worker and by Tracy Caldwell to this effect. In the third place there was the evidence as to the appellant's behaviour in assuming a false name and in seeking to leave Glasgow with apparent haste.

In these circumstances we are entirely satisfied that the sheriff correctly repelled the submission of no case to answer. The appeal against conviction is accordingly refused.