Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C521/00 OPINION OF THE COURT delivered by LORD KIRKWOOD in NOTE OF APPEAL AGAINST CONVICTION by ROBERT JOHN POTTER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: N. McCluskey; Drummond Miller

Respondent: S. Woolman, Q.C., A.D.; Crown Agent

3 September 2002

1. This is an appeal against conviction at the instance of Robert John Potter. On 29 June 2000 at the High Court in Glasgow he and a co-accused, Alexander Lennox, were convicted of assault and robbery. The charge against them narrated that on 3 March 2000 at the shop premises known as "Bobby's Newsmarket", 161 Main Street, Forth with their faces masked, they assaulted Jill McGurk and Alice Bryson, both employees there, presented a knife at them, repeatedly demanded that they open a cash register there, chased Alice Bryson, attempted to force open a cash register there, threatened them with violence, placed them in a state of fear and alarm for their safety and robbed them of a cash register, £400 of money and personal papers. The appellant was sentenced to eight years imprisonment and Mr. Lennox was sentenced to three years imprisonment. The appellant has not appealed against sentence.
2. We were informed by the trial judge that on 3 March 2000 Jill McGurk, (aged 15) and Alice Bryson (aged 58) were working as shop assistants at Bobby's Newsmarket in Forth. The shop normally closed at about 8 p.m. At about 7.15 p.m. Miss McGurk was at the front of the shop preparing for closing time when a man with a knife came in. He was wearing a balaclava over his face, and another man, also wearing a balaclava, followed. She shouted on Mrs. Bryson who came through, not realising at first what was going on. When she did, she made for the door to the adjoining flat of the owner, Laura McGinty, but was chased by the first man with the knife. He shouted at her not to touch the door, to get over and open the till. This was not necessary, as the second man had by then disconnected the till. He ran out of the shop with it along with the first man. The first man was the appellant and the second man was Alexander Lennox, and they made away with a sum of money of somewhere between £300 and £500.
3. Neither of the complainers could identify either of the robbers. However, a trail of bits of till and till roll led from the shop, down Carmuir to 133 Manse Road, an upstairs flat not far from the shop. Inside the flat were five people, Mr. James McDowall and his wife Lyn, Ian Sirrell, the appellant and Alexander Lennox. The police spoke to the McDowalls and detained the other three. After some questioning, Alexander Lennox accepted that he had committed the robbery along with the appellant. The appellant made no comment but subsequent statements taken that day from Ian Sirrell and the McDowalls implicated him, and both he and Mr. Lennox were arrested and charged.
4. The principal evidence against the appellant came from a statement said to have been taken from Mrs. McDowall by Detective Constable William Stewart. Mrs. McDowall had died on 25 April 2000 of a probable drug overdose. The advocate depute made an application to admit the statement in terms of section 259 of the Criminal Procedure (Scotland) Act 1995. Its admissibility was challenged by counsel for the appellant on the basis of what was contained in the written "witness statement" was not a statement but a precognition. In order to determine that issue, the trial judge held a "trial within a trial" consisting of the evidence of D.C. Stewart. He was satisfied that it was not a precognition and that D.C. Stewart's evidence, if accepted, would entitle the jury to hold that the statement had been made. It was therefore admitted as evidence before the jury. The decision of the trial judge to admit Mrs. McDowall's statement as evidence in terms of section 259 was not challenged in the course of the appeal.
5. The statement of Mrs. McDowall contained the following passage:

"About 7.00 p.m. on Friday night 3/3/00 I was in my home with Jinky, Robert, Alex and Ian. Just after 7.00 p.m. Robert and Alex stated they were going out. Robert wanted a large knife. I was in the kitchen with Jinky. I did not know what Robert was wanting the knife for and did not ask. Robert then took a large bread knife from my kitchen drawer and both Robert and Alex then

left.

A short time later they came running back into the house. They were carrying a large till. They took it into a bedroom and there was a lot of banging and hammering. I think they were trying to open the till.

A short time later I then saw a lot of police activity outside. This got Robert and Alex really nervous and they then tried to put the till upstairs in the loft but it wouldn't go. They then went and hid the till within our kitchen when there was a knock on the door. I went with James to the door. It was the police."

6. As the trial judge observed in his report, the statement of Mrs. McDowall was highly incriminating of the appellant, who was Mrs. McDowall's cousin. However, in order to convict the appellant it was necessary for the jury to accept that she had been telling the truth, and that what she had said was reliable. The trial judge stated that there were two possible ways of finding the necessary corroboration of her statement. In the first place, there was the evidence of Mr. McDowall. Although his version of events apparently altered somewhat during his testimony, he initially said that the two accused had gone out together and returned together after about an hour. He was clear that the appellant had left the house and that after the two men had returned the till was in his house. This could in itself have provided corroboration of his wife's statement relative to the identity of those who had brought the till into the house. Alternatively, since it had been proved by the till trail that the two men who had robbed the shop had run into the McDowall house, the evidence of Mr. McDowall and Mr. Sirrell that they did not commit the robbery could, if accepted, have led the jury to conclude that the only other two men proved to have gone into the McDowall house, i.e. the appellant and Mr. Lennox, had done so, and used this to corroborate Mrs. McDowall's statement. Either way, the evidence of Mr. McDowall also had to be accepted and the jury were so directed.
7. The only ground of appeal which was maintained before us related to an alleged misdirection by the trial judge which arose in the following circumstances. The co-accused, Alexander Lennox, was represented at the trial by counsel, but no challenge was made on his behalf to any of the Crown evidence, and counsel did not even address the jury. The Crown led unchallenged evidence of a statement which had been made by Mr. Lennox to the police in the course of which the following account of events was given by Mr. Lennox:

"Q. Did you have a knife?

A. Naw, I didnae have nothing. I had nae knife.

Q. Were you in that shop?

A. Mm, I was in the shop, aye.

Q. What did you do when you were in the shop?

A. I ran over and grabbed the till and pu'ed it off the wall and ran away.

Q. Where did you go?

A. Em, don't know, just ran out....

Q. Who was with you?

A. I don't know his name. Robert I think. Robert Potter".

8. In the course of his address to the jury, the advocate depute made the following submissions, referring to Mrs. McDowall's statement:

"You can do something else with it and it's something you can do with evidence in general. Sometimes you can test a piece of evidence by cross-checking it against another bit of evidence and if they fit you can conclude that is because it is true and accurate and to some extent you can do that here because one thing we heard was we heard Mr. Lennox's admission. Now, as his Lordship will tell you, that is not evidence directly against Mr. Potter and I don't suggest it is but so far as his own part is concerned in this escapade, you heard him make an admission of what he did and let's concentrate on that. Now, if you accept that, and I suggest there is no reason why you shouldn't, it has not been challenged, if you accept that then you can take what he says about his own role and you can look at Mrs. McDowall's statement and what I suggest to you is, if you do that, you find that what is in Mrs. McDowall's statement about Mr. Lennox is borne out by what Mr. Lennox says about himself. In other words, it fits and that tells you, in my submission, two things. It tells you first of all that Mrs. McDowall's statement is correct not only in relation to what it says about Mr. Lennox but I suggest to you it is a test to tell you it is accurate in relation to what it says about Mr. Potter."

9. In his charge to the jury, the trial judge reminded the jury of the passage from Mr. Lennox's police interview which we have quoted, and gave the following directions:

"So there you have heard played to you a statement by Mr. Lennox in which he admits, as I understand it, being in the shop and committing essentially the crime. You are allowed to use that, ladies and gentlemen, in the case against Mr. Lennox but as I've mentioned to you earlier, you have to look at the two accused separately. You cannot use that evidence in the case against Mr. Potter and the reason for that, as I have said, ladies and gentlemen, is this was a statement which was made outwith the presence of Mr. Potter. He did not have any opportunity to contradict it or anything of that sort so the law is that this statement by Mr. Lennox is evidence against Lennox but it is not, repeat not, evidence against Mr. Potter."

10. In presenting the appeal, counsel for the appellant accepted that there had been sufficient evidence to entitle the jury to convict the appellant and, in particular, that there had been no shortage of corroboration of what Mrs. McDowall had said in her statement. Further, no criticism was made of the trial judge's direction to the jury that what Mr. Lennox had said in his police statement was not evidence against the appellant. The submission which was made to us was that the advocate depute had been wrong to tell the jury that they could use part of the statement given by Mr. Lennox to test the credibility and reliability of Mrs. McDowall whose statement constituted the principal Crown evidence against the appellant. It was contended that there had been a misdirection by omission in respect that the advocate depute's approach had been erroneous, and that that error should have been corrected by the trial judge in his charge. What the advocate depute had done was to invite the jury to use evidence of what Mr. Lennox had said to the police outwith the presence of the appellant, which was clearly not admissible evidence against the appellant, in order to bolster the credibility and reliability of the principal Crown witness against the appellant. That was clearly not permissible and the jury should have been directed that they could not use any part of Mr. Lennox's statement to test the credibility and reliability of Mrs. McDowall's statement. Counsel referred to McNicol v. H.M. Advocate 1993 S.C.C.R. 242, Riddler v. H.M. Advocate 1995 S.C.C.R. 655 and Mathieson v. H.M. Advocate 1996 S.C.C.R. 389. In the circumstances the jury may well have done what the advocate depute invited them to do and, in effect, used evidence which was inadmissible against the appellant to strengthen the credibility and reliability of Mrs. McDowall. Proof of the guilt of a co-accused was not a factor which could be taken into account in assessing the credibility and reliability of the principal Crown witness. Counsel submitted that, as Mr. Lennox's statement had been so incriminating so far as the appellant was concerned, the failure of the trial judge to give the required direction had constituted a miscarriage of justice. The appeal should be allowed and the conviction quashed.
11. In reply, the advocate depute submitted that there had been no misdirection. At the trial the advocate depute's approach to the issue in question had been perfectly proper and the direction sought by the appellant would have been quite inappropriate. The advocate depute had reminded the jury that Mr. Lennox's admission was not evidence directly against the appellant, and it was never suggested that the jury could take into account, as evidence against the appellant, the fact that Mr. Lennox had said that the appellant had been the other man involved in the robbery. What the advocate depute had done was to suggest to the jury that they could take into account, in assessing Mrs. McDowall's credibility and reliability, what Mr. Lennox had said about his own involvement in the robbery. This was something which the jury would have been entitled to do in any event. She had not been able to give evidence so that the jury did not have the opportunity of observing her demeanour in the witness box. In the circumstances it was legitimate to cross-check her evidence against Mr. Lennox's admission that he had been one of the men who had carried out the robbery. In any event, even if the direction sought by the appellant should have been given, it had not been shown that there had been a miscarriage of justice. There was conceded to be a sufficiency of evidence and the directions which the trial judge had given had not been challenged. Further, drawing the attention of the jury to Mr. Lennox's statement, in so far as it referred to the appellant, could have been detrimental to the interests of the appellant. The appeal should be refused.
12. In our opinion the submissions made to us by the advocate depute were well-founded. It was conceded that there was sufficient corroboration of Mrs. McDowall's statement and no criticism was levelled at the trial judge's general direction to the effect that the evidence of what Mr. Lennox said to the police, outwith the presence of the appellant, was not evidence against the appellant. In the course of the police interview Mr. Lennox (a) admitted that he had been involved in the robbery and the removal of the till and (b) said that the appellant had been the other man who had been with him. Mr. Lennox's statement that the other man involved in the robbery was the appellant was not, of course, evidence against the appellant, and the advocate depute at the trial did not suggest otherwise. In making the submission to the jury which the appellant has challenged, the advocate depute confined his observations to what Mr. Lennox had said to the police "about his own role" in the robbery. In our opinion the jury, who had not had the advantage of seeing and hearing Mrs. McDowall giving evidence in the witness box, were perfectly entitled to cross-check her evidence against other evidence in the case which they considered to be truthful and reliable. In particular, they were entitled to test her statement against Mr. Lennox's admission that he had been one of the men who had carried out the robbery involving the removal of the till. It follows that the approach which the advocate depute invited the jury to adopt was a proper one, and that there was no justification for a further direction in the terms sought by the appellant. For these reasons we are satisfied that there was no misdirection by the trial judge, and the appeal is refused.