Scottish High Court of Justiciary Decisons

GEORGE BAIGRIE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 64 (26th July, 2001)

[1] The appellant is George Baigrie. On 29 June 2000 in Edinburgh Sheriff Court he was convicted of assault to severe injury and permanent disfigurement. He appealed against conviction on two grounds.

[2] The first was as follows. The appellant was charged with a co-accused, Neil McIntyre. Identification evidence was a crucial issue in the trial. One of the witnesses who identified the appellant said that he told the police that one of the assailants (not McIntyre) had blond hair. He did not attend an identification parade after the incident but made a dock identification at the trial some seven months later. In cross-examination he accepted that the appellant did not have blond hair. No evidence was led at any stage to the effect that at the time of the incident the appellant had blond hair. In the course of addressing the jury the procurator fiscal depute referred the jury to Crown production number 8, the identification parade report, and the description column in that document. The description column was in the handwriting of a witness who had not given evidence and no evidence had been given in respect of the description column of the accused and the stand-ins. The procurator fiscal depute in referring the jury to the column pointed out that the description of the appellant disclosed the fact that he had blond hair. The ground of appeal goes on to state that the procurator fiscal should not have referred to that column and despite the careful direction of the sheriff to the jury to ignore the column, there was a miscarriage of justice.

[3] Mr McInnes, solicitor advocate for the appellant, submitted that it was certainly improper for the procurator fiscal to have made reference to the column in the identification parade report and that her motive could only have been to help the Crown. The question was whether what she did could be saved by direction by the sheriff.

[4] In our view this is indeed the correct question. We agree that it was improper for the procurator fiscal to make reference to that column and it should not have been done. However, we are not persuaded that it was a matter which could not be cured by the direction of the sheriff and we are quite satisfied that the very clear direction by the sheriff on the matter was sufficient to remedy the error.

[5] The second ground of appeal was that the sheriff misdirected the jury when he directed them at page 18 of his Charge to the jury on the law applicable to the statement made to the police by the co-accused McIntyre.

[6] Mr. McInnes pointed out that the sheriff had told the jury that what McIntyre had said to the police outwith the appellant's presence could not be evidence against the appellant. That was correct but McIntyre had then given evidence from the witness box and adopted what he had earlier said to the police as the truth. Accordingly, if he had said anything favourable concerning the appellant, that was evidence in the appellant's case and the sheriff in his directions did not make that sufficiently clear to the jury.

[7] The difficulty with this submission was that Mr McInnes was unable to point to anything which was said by the co-accused McIntyre to the police which was favourable to the appellant. Nor was he able to point to anything said in the closing speech by the solicitor for the appellant which would indicate that something had been said by McIntyre which was favourable to the appellant. From the sheriff's note of McIntyre's evidence, as set out in his supplementary report, there is nothing that is favourable to the appellant and much that is unfavourable. In these circumstances there is no basis for saying that the sheriff misdirected the jury on this matter.

[8] For these reasons the appeal is refused.