Scottish High Court of Justiciary Decisons

JOHN GALLAGHER v. HER MAJESTY'S ADVOCATE [2000] ScotHC 50 (11th April, 2000)

The appellant is John Gallagher, who went to trial along with his co-accused Annie Banks Downie on a charge of assault to severe injury and robbery. Both were convicted and the appellant has appealed against his conviction. He was given leave to appeal on the ground that the sheriff erred in law in repelling the submission that there was no case to answer by reason of a lack of the necessary corroborative evidence.

The principal witness for the Crown was the complainer who was, however, very drunk at the time of the incident and whose recollection was affected by his condition. The background in which his evidence has to be considered is this. On the day in question the complainer went to a bar in Leith where he had some drinks with the co-accused. At some point Margaret Martin, with whom the complainer was in a relationship, came in and they quarrelled over a money matter. The complainer subsequently went home and the co-accused invited Martin to come and stay with her. Martin was worried about her dog and the co-accused indicated that she would go to the complainer's house and fetch it. Martin gave her the keys to the house so that she could get the dog and two bottles of cider from the kitchen. Martin said that the co-accused called on the appellant to go with her in a taxi. After half-an-hour Martin walked up Leith Walk where she saw the appellant running away from the direction of the street where the complainer lived. The appellant said that the co-accused was in another public house with the dog but Martin went up to the house where she saw the complainer injured, with blood on him and over the television set and coffee table.

The complainer's evidence was that he woke up in the house to see the appellant and the co-accused in his livingroom. They were the only other people in the house. He wondered how they had come to be there since he was unaware that the co-accused had a key. He was struck on the head and kicked in the ribs and money was taken off him which he estimated at about £85. He remembered the co-accused saying to the appellant to remember to "get his fucking money". He remembered the co-accused putting the lead on the dog and picking up two bottles of cider from the kitchen. He did not remember the co-accused hitting him and he did not indeed see anyone raising his hand to him, but he assumed that the appellant had struck him because he thought that the co-accused was too drunk and because she was in the kitchen.

When detained, the co-accused had £60 in her jacket. There was blood on the money and on her jacket and, although it was not possible to group the blood on the money, the blood on her jacket matched the complainer's blood. In these circumstances it is clear that the evidence available against the co-accused was significantly different from the evidence involving the appellant because, although there was blood on the trainers which the appellant was wearing at the time of his arrest a week later, it was not possible to group the stains.

The appellant told the police that the co-accused had asked him to go up to Balfour Street (to the complainer's house) with her and that he had done so. He said that he got the dog but had left when the complainer and the co-accused quarrelled when he saw her taking the cider.

The submission on behalf of the appellant was that the evidence was insufficient to corroborate the complainer's account. The complainer's account in itself would, of course, point to the appellant as having been involved in the assault and robbery. The question was whether or not the other evidence in the case provided the necessary corroboration.

The evidence certainly showed that the complainer had not been injured when he left the public house and had been injured by the time that Martin went to the house. It would therefore have been open to the jury to infer that the complainer had been attacked in the intervening period. In that period the appellant admitted that he had been in the house along with the co-accused. There was therefore corroboration of the appellant's presence at the scene of the crime. The Advocate Depute initially placed weight on the evidence of Martin that the co-accused had asked the appellant to go with her in the taxi and that they had left together. That is indeed a factor which the sheriff also appeared to found upon. But, on further consideration, the Advocate Depute acknowledged that that adminicle of evidence in itself could not point to any involvement by the appellant in any assault on the complainer since there was no evidence to justify an inference that the co-accused and appellant had formed the intention of carrying out an assault and robbery by the time when they left for the flat.

In these circumstances the Advocate Depute submitted that the necessary evidence to corroborate the involvement of the appellant in the crime on an art and part basis came from three sources. The first was the admission by the appellant that he was in the house along with the co-accused and the complainer. As we have explained, that evidence, in itself, of course, puts the appellant at the scene of the crime at the relevant time but does not in itself provide corroboration of his actual involvement in it. The Advocate Depute said that another factor which could be taken into account was the fact that the appellant's trainers had had spots of human blood on them. In our view, however, that adminicle of evidence is not of significance in this case because the trainers were simply trainers which the appellant was wearing a week after the incident and there was no evidence that he had been wearing the same trainers on the occasion in question. Moreover, there was, of course, no evidence that the blood on the trainers was blood from the complainer. For our part, therefore, we do not consider that factor to be of significance. The factor which the Advocate Depute perhaps placed most weight upon, although he said that all the factors had to be taken in combination, was the evidence of Martin that she had seen the appellant running from the direction of the flat and that he had said that the co-accused was in Morrison's Bar whereas subsequently he indicated to the police that she had still been in the house at the time when he had left. The Advocate Depute submitted that the fact that the appellant was running away could be taken as indicating that he was running away from the crime in which he had been involved. In our view, however, the fact that he ran away would, for example, be equally consistent with the possibility that he had witnessed a crime in which he did not wish to be involved. In other words, that adminicle of evidence did not confirm or support the complainer's evidence of the appellant's involvement in the crime.

It therefore seems to us that, even taking the three factors which the Advocate Depute highlighted and putting them all together, they do not admit of the inference that the appellant was involved in the crime and therefore do not provide the necessary corroboration, by way of support or confirmation, of the complainer's account of the appellant's involvement in the assault and robbery.

We therefore consider that the learned sheriff erred in rejecting the submission of no case to answer. The appeal must accordingly be allowed.