Scottish High Court of Justiciary Decisons

BRENDA MALLON v. HER MAJESTY'S ADVOCATE [2000] ScotHC 75 (11th July, 2000)

[1] This is an appeal against conviction by Brenda Mallon who appeared on indictment at Glasgow Sheriff Court and was convicted, after trial, of assault. The charge narrated that on 29 November 1997 in Dumbarton Road, Glasgow near Primrose Street the appellant, and three co-accused, assaulted Patricia Carden, pulled her hair, repeatedly punched and kicked her on the head and body, struck her on the face with bottles or similar instruments to her severe injury, permanent disfigurement, permanent impairment and danger to life. In the course of the trial one of the co-accused, Susan Livingstone, pled guilty to the charge and another co-accused was convicted. The third co-accused was acquitted.

[2] The sole remaining ground of appeal alleges that the sheriff gave insufficient directions to the jury on the question of identification.

[3] The sheriff has set out in his report what he describes as the body of evidence against the appellant. The complainer gave evidence that Susan Livingstone and the appellant became involved in assaulting her. She felt badly hurt and there was lots of blood about. She had a massive hole on the right side of her face. She said that when Susan Livingstone and the appellant were involved in assaulting her she felt a great pain in her face. Sharlene Williamson (16) identified the appellant in court and gave evidence that the complainer was assaulted by Susan Livingstone and someone else joined in and then the appellant joined in punching, kicking and pulling the complainer's hair. There was blood spilling from the complainer's face and her whole face had opened up and was hanging out. Nicola Dean (17) identified the appellant as being present. The appellant grabbed the complainer by the hair and then all four women were assaulting her, pulling her and booting her for a couple of minutes. Nicola Dougan (16) gave evidence that she saw the complainer being assaulted by two women and then a third woman joined in, and finally a fourth woman, and they were all punching and kicking the complainer. Two men came over and pulled the women off and the complainer's face was seen to be cut open and blood was gushing out. Miss Dougan had picked out the appellant at an identification parade.

[4] We are informed by the sheriff that the evidence showed that the appellant had been involved in the assault on the complainer by punching and kicking her, but there was no evidence that she had used a bottle or a similar instrument. However, she had been convicted of the whole charge, including the use of the bottle, on the basis of concert.

[5] In his charge to the jury the sheriff gave them the following directions:

He later directed the jury that there may be matters which bring into question the reliability of what a witness said and reliability meant that on a particular occasion the accuracy of the witness could be relied on.

[6] Counsel for the appellant submitted that the issue of identification of the appellant, and the part which she had played in the incident, had been of great importance in this case. The complainer had identified the appellant in court but at the identification parade held some three weeks after the incident she had not been sure. Karen Farquhar had given evidence that Susan Livingstone had become involved with the complainer and two other lassies had joined in assaulting her but she did not identify the appellant. Three other witnesses had identified her in court and at the identification parade. The appellant did not give evidence but when she was interviewed by the police she told them that she had been at the locus but had not taken part in the assault. In the circumstances the sheriff should have given clearer directions to the jury on the issue of identification and, in particular, he should have directed them to take particular care in considering the evidence of identification. Counsel accepted that the appellant's solicitor had put to the jury all the defence criticisms of the evidence led by the Crown in relation to the identification of the appellant and the part which she had played in the incident. In reply, the advocate depute referred to the terms of the sheriff's charge and submitted that in the circumstances the directions which had been given on identification were adequate.

[7] When the Crown relies on identification evidence, the directions which the presiding judge should give to the jury must depend on the facts of each particular case. In the present case the sheriff reminded the jury that a considerable amount had been said about identification and told them that "the evidence of an eye-witness who speaks to a particular person being present or doing something on a specified occasion is clearly very important evidence and must be subjected to the kind of careful scrutiny which important evidence demands". The sheriff then went on to refer to factors which the jury might wish to take into account in assessing the quality of the identification evidence and the weight to be given to it. It is accepted that the appellant's solicitor had, in his closing speech, placed before the jury all the defence criticisms of the evidence given by the Crown witnesses on identification, and in our opinion the sheriff was under no obligation to repeat, in the course of his charge, those criticisms. In the particular circumstances of this case we are satisfied that there was no misdirection by the sheriff and the appeal is therefore refused.