Scottish High Court of Justiciary Decisons

NEIL McINTYRE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 67 (26th July, 2001)

[1] The appellant is Neil McIntyre. On 29 June 2000 in Edinburgh Sheriff Court he was convicted, together with a co-accused, of assault to severe injury and permanent disfigurement. He was sentenced to one year's detention in a young offenders institution. He sought leave to appeal against both conviction and sentence but leave was granted in respect of ground 2 of the appeal against conviction only. In support of this ground of appeal Mr Wheatley, solicitor advocate for the appellant, submitted that the way in which the sheriff addressed the jury on the question of identification was unfair and indicated his own view of the identification evidence. In doing that he had trespassed on the jury's function and a miscarriage of justice had resulted. The appeal should therefore be allowed.

[2] The material passage in the sheriff's charge is at pages 16 and 17 where he was dealing with identification evidence and, in particular, the identification evidence of a witness David Burzala. In that passage he contrasted the evidence that the witness had given with regard to the identification of the co-accused and that with regard to the appellant. He directed the jury that the evidence in regard to the co-accused was so confused and so contradictory that he thought it was impossible for them to rely upon it as evidence identifying the co-accused. On the other hand he reminded the jury that Burzala's evidence of identification in respect of McIntyre was very clear. Earlier in his charge he had told the jury that they could accept the evidence of a witness in whole or in part or could reject it in whole or in part and towards the end of this passage of his charge at page 17 he said that this identification evidence by Burzala might be a case where they reject part of his evidence, namely his identification of the co-accused, and accept another part of his evidence, namely the identification of the appellant. It was a matter for them but they were entitled to take that selective approach towards the evidence.

[3] Having regard to the context in which the sheriff gave those directions we are not persuaded that what he said was in any way unfair to the appellant. In our view what he did was perfectly proper in the context of the evidence as given by the witness Burzala and it was appropriate for him to put his comments in the context of the jury possibly accepting some parts of a witness's evidence and rejecting other parts.

[4] For these reasons the appeal is refused.