Scottish High Court of Justiciary Decisons

McLaughlin v. Procurator Fiscal [2002] ScotHC 5 (15 February 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Philip Lord Caplan	Appeal No: 1492/00 OPINION OF THE COURT delivered by LORD PHILIP in STATED CASE in causa GARY McLAUGHLIN Appellant; against PROCURATOR FISCAL, Kirkcaldy Respondent: _______

 

Appellant: Shead; Purdie & Co.

Respondent: A. Smith, Q.C., A.D.; Crown Agent

15 February 2002

1. The appellant was charged on a complaint containing two charges of shop lifting and one of assault and robbery, all committed on 12 January 1999. He eventually pled guilty to one of the charges of shoplifting and his plea of not guilty to the other shoplifting charge was accepted. He went to trial on the third charge, the charge of assault and robbery. On 3 March 2000 he was convicted and sentenced to 7 months imprisonment on both of the charges. He appeals against conviction on the ground that there was insufficient evidence to establish that he was guilty of the assault and robbery and also against sentence.
2. It was agreed by joint minute that at about 5.10 p.m. on 12 January 1999, the complainer, Joan Lauder, aged 75 years, was walking along Maryhall Street in Kirkcaldy. The joint minute continues:

"She had her blue nylon shopping bag over her shoulder, with her arm through the straps of the bag, and was carrying a Tesco carrier bag. Suddenly Miss Lauder was aware of a person behind her and her shopping bag being wrenched from her shoulder. It was pulled quite hard which caused Miss Lauder to spin round, stumble and fall, striking her head on the pavement. Thereafter Miss Lauder was unaware of anything until she was helped to her feet by a young man and the police arrived. Miss Lauder's shopping bag was missing along with its contents, being a purse with £30 of money, a travel pass, two bank cards, her house keys and three library books. Miss Lauder suffered a painful shoulder and legs from the fall and also a laceration to the left side of her forehead."

3. The only other evidence in the case was evidence of a statement by the appellant to police officers which was put forward by the Crown as a confession containing special knowledge. At the trial, there was some suggestion on behalf of the defence that the contents of the statement had been supplied by the police officers and that pressure had been put on the appellant, but these were matters for the sheriff and were not raised again on the appeal. The sheriff accepted that there were differences between what was said in the appellant's statement and the facts as set out in the joint minute but thought that there was sufficient correspondence between the facts and the statement to entitle her to hold that the statement did display sufficient special knowledge to entitle her to convict. The question in this appeal is whether the sheriff was entitled so to hold.
4. The appellant's interview was tape recorded and we have the advantage of a transcript of the recording which the sheriff instructed to be made for the purposes of the preparation of the stated case. The first part of the interview deals with the shop lifting charges. Thereafter the officer conducting the interview told the appellant that he had information that the appellant had been involved in an incident in which a woman had her bag snatched from her. The appellant explained that he was in company with a woman called Sandra. He said that Sandra had put it into his head to grab the woman's bag. He ended up grabbing the bag, kept on running and never even looked back. He explained that the woman had been walking along the right hand side of a street but crossed over just before a pub called Smithy's and walked along and up the same street as Smithy's, a street whose name he did not know. His description indicated that the street was Maryhall Street. He was asked how she was carrying the bag and replied "Just hid it in her hand, hinging through her fingers, ken." He was asked whether it was over her shoulder and said "No". He said it was in her left hand because he had to run to the inside of her to grab the bag. He was then asked what was in the bag and replied "£30 odd quid eh, reading books eh, some kind of cards eh." He was asked to explain that answer and said "A think there was a bank card, maybe a library card or something like that, I cannae mind. There was cairds, there was eh reading books, a purse eh." He explained that the purse was a stud thing, "quite a weeish one". The money, he thought, was a £20 note, two fives and some pound coins. He said that he did not know what happened to the woman afterwards. He just grabbed the bag and ran. The woman did not put up a struggle, he just got to the bag in one grab and never looked back. He got it quite easily. He explained that he threw "her cairds and that" down drains and threw the bag over a fence somewhere near a scrap yard. Later in the interview he was asked to describe the bag and said it was quite a biggish bag, a leather bag. He was then asked "Right. Not a shopping bag. A shopping bag aye?" and replied "It could have been a shopping bag, aye."
5. Later, after he had been charged, he said "I'm just sorry that one happened, you know what I mean? Never meant for that to happen"
6. It is immediately obvious that the statement contains a clear admission of snatching the bag and that some of the details in the statement match what was agreed in the joint minute. On the other hand, however, there are some differences between the statement and the contents of the joint minute. It was submitted to the sheriff that the statement did not display sufficient special knowledge, but the sheriff, having considered that submission, was satisfied that it did. In her notes, she observes that the statement agreed with the joint minute as to the location of the incident, and the fact that the appellant came from behind the woman. She notes that, although he did not see her fall, he explained that he had run on without looking back. She also notes that the appellant gave specific details as to the contents of the bag, including the denomination of the money, the cards and, in particular, the library books. In addition she observes that the appellant had a motive in that his previous shoplifting efforts had been unsuccessful and he was, on his own admission, in need of money to obtain heroin. With regard to the differences between the statement and the joint minute the sheriff says:

"I accepted that the victim was carrying a blue nylon bag, although the appellant had stated that he thought that it was leather. He said that she was carrying the bag in her hand through her fingers. This not necessarily inconsistent with her arms being through the straps of the bag although it was not specifically proved that she was also holding on to it with her hand. Whether he ran into her side or not is still consistent with him approaching her from behind. He could hardly have grabbed the bag if he had run straight towards her back. She certainly did not see anyone coming towards her. Accordingly her evidence and the appellant's was consistent that she had been approached from behind before he wrenched the bag from her shoulder, having run into the side of her.

More particularly, the appellant gave specific details as to what was in the bag. In addition, as indicated above, he must have been desperate for money for heroin as the shops were closing and the items which he had stolen and attempted to steal had been removed from him."

7. Mr. Shead, on behalf of the appellant, submitted that regard should be had to the contents of the statement and to the way in which questions had been put and answered during the interview. He recognised the importance of the references to the cards and the library books. On the other hand, the sheriff had apparently thought that there was correspondence in detail as to the money but there was no detail as to the make up of the £30 in the complainer's account, as set out in the joint minute. There was no evidence that any bag had been found in the place where the appellant had spoken to disposing of it. There were clear differences in regard to the description of the bag. It was notable that a difference emerged when an open question was asked in regard to the nature of the bag. It should also be remembered that the whole affair had been reported in the press before the interview took place. Mr. Shead referred to Manuel v. H.M. Advocate 1958 JC 41, Lowe v. H.M. Advocate 1993 S.C.C.R. 493 and Wilson v. H.M. Advocate 1987 S.C.C.R. 217. The test as stated in Wilson was that the only reasonable explanation of the special knowledge shown in a statement was that the accused was the perpetrator. That test was not satisfied in this case.
8. The advocate depute submitted that the sheriff had been entitled to hold that the consistencies between the facts and the confession were such as to be sufficient corroboration. It was very much a matter for the court of first instance to determine whether there was sufficient consistency and the fact that there were some inconsistencies was not fatal to the argument. There were consistencies as to the nature of the incident, the age of the complainer, the direction of approach, the date, the locus, the time, the contents and, subject to certain differences, the bag itself, which, according to the appellant, could have been a shopping bag. The advocate depute referred to Gilmour v. H.M. Advocate 1982 S.C.C.R. 590 and in particular to the opinion of the Lord Justice Clerk at 606 and to Andrew v. H.M. Advocate 2000 S.L.T. 402 at page 405.
9. This case gives rise to a question as to what is the proper approach when there are both inconsistencies and consistencies between a statement and the facts as established from other sources. With regard to this point the advocate depute founded strongly on what was said by the Lord Justice Clerk in Gilmour v. H.M. Advocate supra. The appellant in Gilmour was charged with rape and murder and had made a lengthy statement. Some of the information contained in that statement coincided with the facts established from other sources, but many of the details did not correspond. In charging the jury, the judge mentioned specifically those details which did correspond and reminded the jury that there were many other points where such correspondence did not exist, but did not go through the discrepancies in detail. One of the grounds of appeal was that the judge should have reminded the jury of those discrepancies.
10. The second ground of appeal was that the points of identity were not sufficient to provide corroboration. In dealing with that argument the Lord Justice Clerk pointed out that it was not a matter to be dealt with by numerical or mathematical equation or balance and said:

"Where a statement contains points of identity and points of discrepancy then, as previously indicated, it is for the jury to decide whether they are going to accept and proceed upon the points of identity, and if they do so, the only question then is whether these points are sufficient in law to constitute corroboration of the admission of guilt. In the instant case the points of identity, if accepted, were clearly sufficient in law and the judge very properly left the issue to the jury. The verdict indicates how the jury responded."

11. On the basis of that passage, the advocate depute submitted, as we have noted, that it was for the court of first instance to determine whether there was sufficient consistency to enable the statement to be treated as corroboration. In our view, that is an oversimplification of what the Lord Justice Clerk said. The Lord Justice Clerk expressly referred to the question of sufficiency, in this context, as a question of law, and his observations plainly imply that the judge might have withheld the issue from the jury if he had not been satisfied on the question of sufficiency. While the court in Gilmour was primarily concerned with the question of the adequacy of the judge's directions, it was apparently satisfied that the accused's statement did contain enough material to be capable of being treated by a reasonable jury as corroboration. There was no discussion in detail of the nature and extent of the points of difference and similarity respectively, but the fact that there were some discrepancies between the facts and the contents of the statement did not prevent there being a sufficiency of evidence in that case. The sheriff in the present case, in performing her function of assessment and evaluation of the evidence accepted the points of identity as providing sufficient corroboration of the complainer's evidence. It is not for this court to usurp the sheriff's function in that regard but it is for this court to consider whether the evidence before her was sufficient in law.
12. In the statement in this case, as we have said, there are both consistencies and inconsistencies with the facts established otherwise. The advocate depute submitted that, in considering whether there was sufficient evidence in law the court should look only at the points of agreement and ignore points of disagreement, on the basis that points of disagreement would be points to be considered by the tribunal of fact. Again we consider that to be too simple an interpretation of what was said by the Lord Justice Clerk in Gilmour. It must, we think, be open to the court to consider the statement as a whole in order to decide whether it is capable of being corroborated by facts proved from other sources. In the present case the points of identity on which the sheriff relied were the nature of the crime, the location, the fact that the perpetrator came from behind the complainer, the contents of the bag, in particular, the amount of money, the cards and the library books. In our opinion, the sheriff was entitled to conclude, on the basis of these points of identity, that the only reasonable explanation of the accused's knowledge of these facts was that he was the perpetrator of the crime, notwithstanding the differences between the statement and the proved facts to which we have referred. We shall accordingly answer the first question in the stated case in the affirmative and refuse the appeal against conviction.
13. The appellant also appeals against the sentence of seven months imprisonment imposed by the sheriff. The sheriff had regard to the seriousness of the charge and the appellant's record which disclosed a pattern of persistent offending since the early 1980s including many convictions for theft. The appellant has served a number of custodial sentences. This was an assault and robbery of an elderly woman in the course of which she was thrown to the ground and struck her head on the pavement. In our view, against that background the sentence imposed by the sheriff cannot be categorised as excessive and we shall refuse the appeal against sentence also.