Scottish High Court of Justiciary Decisons

Gillan v. Her Majesty's Advocate [2002] ScotHC 21 (5th March, 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Marnoch Lord Kingarth	Appeal No: C609/00 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK In the APPEAL by SHAUN CHRISTOPHER GILLAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Scott; Balfour & Manson

Respondent: Woolman QC, AD; Crown Agent

5 March 2002

The conviction appealed against

1. On 25 July 2000 at Glasgow High Court the appellant was convicted on three charges. He has appealed against conviction on two of the charges which were libelled in the following terms:

"(4) On 10 March 2000, in a lane leading from Tower Street to Keir McTurk Memorial Bridge, Ayr Road, Cumnock, you did, while acting with another person meantime to the Prosecutor unknown, assault Patrick Blue, care of Strathclyde Police, Cumnock, seize him, present a syringe and hypodermic needle at him and hold it to his neck, threaten him with violence, rifle his pockets and rob him of £80 of money;

you did commit this offence while on bail, having been granted bail on 7 January 2000 at Ayr Sheriff Court;

(5) On 31 March 2000, in Robertson Avenue, Cumnock, you did assault Derek Rutherford, care of Strathclyde Police, Cumnock, present a syringe and hypodermic needle at him and hold it to his neck, compel him to enter a phone box, headbutt him to his injury, and did rob him of £93 of money and 21 Nitrazepam tablets;

you did commit this offence while on bail, having been granted bail on 7 January 2000 at Ayr Sheriff Court".

The jury convicted on charge 4 as libelled and on charge 5 under deletion of the words "and did rob him of £93 of money and 21 Nitrazepam tablets."

2. On charge 5 the appellant was positively identified by two witnesses as the perpetrator of the assault. Counsel for the appellant accepts that the jury were entitled to convict on that charge and has therefore maintained the appeal only in relation to charge 4.
3. On charge 4 the complainer said that as he was going down a flight of steps two men came behind him and assaulted and robbed him. There was no other direct evidence to support this account. The complainer did not identify either of his alleged assailants. He said that the appellant was not one of them.
4. To make good these deficiencies in the evidence the Crown relied upon a principle laid down Howden v. HM Adv (1994 SCCR 19) and applied in Townsley v. Lees (1996 SCCR 620), namely that where there is sufficient evidence to identify the accused as the perpetrator on one charge but insufficient evidence to identify him on another, the jury are entitled to conclude that the accused was the perpetrator on that other charge if there is circumstantial evidence justifying the conclusion that the same person perpetrated both crimes.
5. In his Report, the presiding judge observes that the circumstances of the crimes libelled in these two charges showed the following similarities: (1) both took place in Cumnock town centre; (2) both were committed within the space of 21 days; (3) the complainer in each case said that he was waylaid from behind and that a syringe and hypodermic needle were held at his neck; (4) in each case the complainer was an addict who was on a course of methadone and was receiving social security benefits; and (5) in each case the incident occurred on a Friday, at about the same time of day, after the complainer had uplifted his benefits at the Post Office and collected his methadone from the chemist.
6. At the conclusion of the Crown case, counsel for the defence submitted that there was no case to answer on charge 4 because there was no identification. In reply, the advocate depute relied on the similarities to which we have referred. The presiding judge repelled the defence submission.
7. At the hearing of this appeal the advocate depute relied on the same similarities in supporting the conviction on this charge. This approach to the evidence was based on there having been two offences of a similar nature; but of course in relation to charge 4 there was only the complainer's word that the offence had been committed at all.

The judge's charge

8. When he came to charge 4, the presiding judge had to consider the lack of corroboration of the evidence of the complainer as to the commission of the offence itself. He decided to give a direction on the Moorov doctrine (cf. Moorov v HM Adv, 1930 JC 68) as well as a direction on the principle in Howden v HM Adv. He did so because, as he says in his Report, he was of the view, which he still holds, that "although there are similarities between the two rules, it was nevertheless necessary to give separate directions about them so that the jury would appreciate that they could not hold the offence in charge 4 to be proved unless they were satisfied, applying the rule in Moorov v HM Adv, that it was committed as part of a single course of criminal conduct as well as having to decide, in light of my direction about the rule in Howden v HM Adv, whether they were satisfied that the proper inference was that the appellant was one of the perpetrators (Report, pp. 5-6)." He therefore gave the following direction on the Moorov doctrine:

" ... Where an accused person is charged with a series of similar offences closely linked in time, character and circumstances, the evidence of one witness implicating the accused in one offence may be taken to corroborate the evidence of another witness implicating the accused in another offence, each offence being treated as if it were an element in a single course of conduct. It is essential for the operation of the rule, which must be applied with caution, that there be some underlying unity of purpose between the offences which makes them part of the one course of criminal conduct. And before you could apply it you would have to say that the two offences that are the subjects of Charges 4 and 5 are not isolated, unrelated instances of crime, but are part of a campaign of related crimes. There must be at least two similar offences, and where there are only two, even more caution must be exercised in applying the rule.

The rule can only apply to instances in each of which the accused is identified, either directly by a witness, or by inference from some other credible and reliable evidence; and of course only where you are satisfied that evidence of identification is both credible and reliable.

What you have to decide, therefore, for this rule to apply, is whether the offences are sufficiently linked in time, character and circumstance as to amount to one course of criminal conduct (Charge pp. 44-46)."

.

The presiding judge then gave the following direction as to the meaning and application of the Howden principle:

"The other rule which, in the circumstances of the case is a related rule, can be put in this way: if there is sufficient evidence, looked at on its own, to implicate the accused in the commission of one offence; and if there is evidence about the commission of another offence which is so similar, when regard is had to all the circumstantial evidence, that the proper inference is that the same person must have committed both offences, then even if there is no evidence directly implicating the accused in the commission of the second offence, if he is proved to have committed the first offence, and if the inference is that the second offence must have been committed by the same person, then the proper conclusion may be that it was the accused who committed the second offence as well.

As was put in a very recently-decided case, so long as the jury are satisfied beyond reasonable doubt by the circumstantial evidence that it was the same person who was responsible for both offences, and so long as they are satisfied beyond reasonable doubt that the accused was the perpetrator of at least one of these offences, that was sufficient to establish the guilt of the accused in respect of both of the offences (Charge pp. 53-56)."

Counsel for the appellant accepts that both of these directions were accurate descriptions of the principles to which they referred.

9. After the jury had retired they returned with the following question:

"The jury have a query as to whether one can find a defendant guilty under deletion on charge 5, the deletion being the actual robbery, and still find the defendant guilty as libelled for the whole of charge 4?"

The presiding judge answered the question by giving further directions. We need not quote them. It is sufficient to say that in substance they re-iterated the Moorov and the Howden directions that we have already quoted and that they indicated to the jury that, if they were minded to convict on charge 5 under that deletion, they would have to deploy both the Moorov and Howden principles before they could convict on charge 4.

The questions in this appeal

10. There are three questions in this appeal: first, whether the principle laid down in Howden v HM Adv is sound; second, if the principle is sound, whether the evidence was sufficient to entitle the jury to apply it; and third, whether the directions on the Moorov doctrine were appropriate.

(1) The Howden principle

11. Counsel for the appellant submitted that the Howden principle is flawed and that a larger court should be convened with a view to its being reconsidered.
12. In Howden v HM Adv there were two charges, one of attempted robbery of a building society and the other of robbery of a bank. In both cases there was corroborated evidence that the crime libelled had been committed. There was sufficient evidence to identify the accused as the perpetrator of the attempted robbery at the building society; but at best the evidence of the eye-witnesses at the bank was only that the accused resembled the robber. That fell to be treated as a failure to identify. However there was evidence of facts and circumstances that pointed to the conclusion that both robberies were committed by the same person. Both robberies took place on similar premises in Edinburgh. Both occurred within the space of 12 days. In both cases the robber acted alone. In both cases he was wearing a baseball cap, a Barbour-type jacket, sunglasses and light training shoes, and was not wearing gloves. In both cases the robber produced a handgun of similar type. At the building society, he shouted "Press the alarm and I'll blow your f'ing head off." At the bank he shouted "If you press the alarm, I'll blow your head off."
13. In our opinion these striking resemblances provided circumstantial evidence that entitled the jury to conclude that the robberies were committed by the same person. Since they had sufficient evidence to identify the accused on the first charge, they were therefore entitled to conclude that he was also the perpetrator on the second charge.
14. Townsley v Lees is to similar effect. In that case there were three charges of theft of jewellery from private houses. There was evidence that the first theft had been committed on 24 June 1995 and that the second and third had been committed five days later. In each case, an elderly lady was detained in conversation in her garden by a woman while an accomplice entered the house and stole the property libelled. There was cogent evidence that in all three cases it was the same woman who distracted the complainer while the theft was committed. In each case the woman offered the complainer roses for her garden. In all three cases the woman had her hair combed back and was wearing similar clothes.
15. On charge 1, the complainer could say only that the woman was similar to the accused in height and age and that she had her hair drawn up in a ponytail; but that evidence, taken together with evidence of neighbours that included a positive identification of the accused as having been nearby at the relevant time, was sufficient to constitute one source of identification. On charge 2, the complainer herself positively identified the accused as being the woman concerned. There being positive identification on charges 1 and 2, the sheriff was therefore entitled to rely on the Moorov doctrine to hold those charges proved (ibid., at p 625 E-G; Lindsay v HM Adv, 1994 SLT 546.)
16. On charge 3, however, there was no identification of the accused. The High Court accepted the argument for the Crown that since it was proved that all three crimes libelled were committed by the same person and that two of them were committed by the accused, it followed that the sheriff was entitled to convict her on the third.
17. The point that matters in Townsley v Lees is that the proof that the woman who spoke to the complainer was the same person in each case was derived from evidence of similarities that were personal to the woman herself. In each case the woman raised the same topic of discussion when distracting the attention of the complainer. It was also significant, in our view, although the point is not relied on in the judgment in that case, that the sheriff's findings established that on each occasion the woman was wearing similar clothes and had a similar hairstyle.
18. Counsel for the appellant has submitted that these cases were wrongly decided because they transgress the principle, to which Moorov is the only exception, that on any criminal charge there must be evidence from two independent sources identifying the accused as the perpetrator of the crime libelled. Since there was no identification of the appellant on charge 4, the gap could not be filled by reference to the evidence on charge 5. This was similar to the argument that the court rejected in Howden.
19. In a straightforward case involving two similar charges, the problem that we are now considering arises where there is full legal proof of identification on one charge, but a lack of any identification on the other. In our view, if the evidence shows that the two crimes were committed by the same person, then the evidence that the first was committed by the accused entitles the jury to convict him of the second.
20. Counsel for the appellant referred to the basic principle of corroboration in relation to identification, namely that there must be evidence from two separate sources both of which point to the identification of the accused. She argued that in Howden v HM Adv, as in this case, there was simply no identification that could be corroborated by any other evidence. In our view, this argument is unsound. In cases such as Howden v HM Adv and Townsley v Lees there is identification. It comes from circumstantial evidence to the effect that the perpetrator on one charge was the same person who is identified as having been the perpetrator on the other.
21. Counsel for the appellant has failed to persuade us that there is any flaw in the reasoning on which both of these decisions depend. In our view these cases were correctly decided. They establish a cogent and logical principle and we can see no need for it to be reconsidered.
22. There remains of course the question as to how the principle falls to be applied in the circumstances of the individual case. That takes us to the second question in this appeal.
2. Was there sufficient evidence to justify the application of the Howden principle?
3. In this case there was no direct corroboration of the complainer's evidence on charge 4 that the robbery was committed. But we shall leave that problem aside for the moment. The question that we have now to consider is whether the circumstantial evidence relating to the similarities that we have described could, on any view, be sufficient to entitle the jury to hold that both crimes were committed by the same person. There is the added complication in this case that charge 5 related to a crime committed by one person whereas charge 4 related to a crime committed by two persons acting in concert. However, it is unnecessary for us to concern ourselves with the implications of that point, because we are satisfied that the evidence as to the similarities that we have described was not sufficient to entitle the jury to apply the Howden principle at all.
4. The essential question in a case of this kind is not simply whether the two crimes libelled are similar in type or in the manner and circumstances of their being committed. The essential question is whether these and any other similarities go to the identification of the accused as the perpetrator of both. It is at this stage, in our view, that the jury must approach the evidence with great care.
5. In Howden v HM Adv, the perpetrator of each of the robberies wore similar clothing, produced a similar handgun, and spoke similar words. In Townsley v Lees the perpetrator in each charge held exactly the same discussion with each of the complainers, was dressed similarly and had a similar hairstyle.
6. On charge 4 in this case, there is nothing in the evidence relied on by the Crown that goes to the identification of either of the alleged assailants. The Crown did not point, for example, to evidence that, when compared with the assailant identified on charge 5, either of them was of similar height and build, or was similarly dressed, or spoke similar words. All that the Crown could suggest was that the similarities in time and place, and in the manner and circumstances of commission, entitled the jury to conclude that one of the persons who committed charge 4, as to whose physical characteristics nothing was known, must have been the person who committed the crime libelled in charge 5. In our view, that goes too far. While we cannot exclude the possibility that the modus operandi might be so special as to justify the inference that the perpetrator of two similar crimes was the same man, the facts of this case cannot, in our view, warrant that conclusion. That would have been our view even if there had not been the complicating factor that the complainer in charge 4 said that two men attacked him.
7. For these reasons we conclude that the presiding judge ought not to have let charge 4 go to the jury. The appeal therefore succeeds on this ground.
8. The directions on the Moorov principle
23. In Howden (supra, at p. 24D), the court said that that case had nothing to do with the Moorov doctrine. In Townsley v Lees (supra, at p. 626C), the court considered that for proof of charge 3, to which the Howden principle applied, the Moorov doctrine had no application.
24. On charge 4 in this case, in contrast with Howden, there was no independent corroboration of even the commission of the crime. This aspect of the case was not focused in any way in the arguments put to us. Counsel for the appellant submitted that the Moorov direction given by the trial judge was unnecessary. The advocate depute agreed with her. Since we have decided this appeal on the second point, we need not consider whether counsel's agreement about the Moorov direction is well founded or, for that matter, whether either the Moorov or the Howden principle could properly have been invoked to bridge the evidential gap to which we have referred.

Conclusion

25. We shall allow the appeal to the extent of quashing the conviction on charge 4. That will make it necessary for the question of sentence to be reconsidered. We shall put the case out for a hearing on that question.