APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: XC688/03
OPINION OF THE COURT
delivered by LORD KIRKWOOD
APPEAL AGAINST CONVICTION
MICHAEL ANTHONY BEATON
HER MAJESTY'S ADVOCATE
Appellant: Shead; G. Keenan & Co, Greenock
Respondent:Bell, Q.C., A.D.; Crown Agent
23 June 2004 The appellant appeared at Greenock Sheriff Court facing three charges. On 2 May 2003 he was convicted of charges (1) and (3) which were in the following terms:
"(1) on 07 January 2003 at Caddlehill Street, Glasgow, you PETER BRIAN HARRIS and MICHAEL ANTHONY BEATON did assault Christopher Michael Mitchell, c/o Strathclyde Police, Greenock, seize his arms, threaten him with violence, demand monies from him, punch him on the head and stab him on the hand with a hypodermic needle or similar sharp instrument to his injury and all this you did with intent to rob him of a quantity of money;
(3) on 13 January 2003 at Nicol Drive, Greenock, you MICHAEL ANTHONY BEATON did assault Allan Michael Laird, c/o Strathclyde Police, Greenock, present a hypodermic needle or similar instrument at him and hold it at his throat, demand monies from him and rob him of £10 or thereby of money".
"The Crown had not anticipated that the DNA profile of the blood found on the said syringe cap would have matched the DNA profile of Patrick Altizio. The Crown was of the view that such was the significance of the said forensic evidence in respect of Patrick Altizio that further investigations in respect of him were essential".
It was also agreed that Patrick Altizio had a number of previous convictions, including a conviction for assault and robbery in 1997, and that he was awaiting trial in respect of inter alia a charge of assault and robbery and a charge of assault with intent to rob, both of which involved the use of a hypodermic needle. Counsel for the appellant intimated that he proposed to argue eight of the ten grounds of appeal which had been lodged, and that he would not be insisting in grounds 3 and 4 which related to the appellant's special defence of alibi. We heard submissions on the other eight grounds and it will be convenient to narrate first the submissions made in respect of the second ground of appeal which alleged that the sheriff had erred in repelling the submission of no case to answer in respect of charges (1) and (3). As we have said, in relation to these charges the Crown relied on the Moorov doctrine and founded on the evidence of the two complainers. It had been submitted to the sheriff that there were numerous dissimilarities between the two offences, that the applicability of the Moorov doctrine was a matter of law and that no reasonable jury, properly instructed, could convict the appellant of charges (1) and (3) on the basis of the evidence led by the Crown. The sheriff has stated in his report that, as far as the Moorov doctrine was concerned, he "was of the view that this was a matter for the jury to decide".  Before us, counsel for the appellant submitted that the sheriff had erred in rejecting the plea of no case to answer in relation to charges (1) and (3). The Crown sought to apply Moorov in relation to only two offences and there were numerous dissimilarities between them. The first obvious distinction was that two men were alleged to have committed the offence libelled in charge (1), whereas only one assailant was involved in charge (3). Counsel referred to Gillan v. H.M. Advocate 2002 S.C.C.R. 502 and to the commentary thereon. While a syringe had been used in each case, the modus operandi had been different. In the case of charge (1) the complainer had been followed by two men whereas the offence set out in charge (3) had been committed by one man in a taxi. In relation to charge (1) it was agreed that the appellant had not had the syringe and that it had been used by his co-accused, who had pled guilty. The threats which had been made were different, one relating to HIV and the other to hepatitis. Further, nowadays the use of a syringe in the course of an assault was not uncommon. It was submitted that there were no cogent similarities in this case. Counsel also submitted that the sheriff had been wrong to say that the application of the Moorov doctrine was always a matter for the jury. It was initially a question of law in that in the first instance it was for the court to decide if there was enough evidence, if it was accepted as credible and reliable, to permit the application of Moorov. Counsel also referred to Ogg v. H.M. Advocate 1938 J.C. 152 and, in particular, to the observations of the Lord Justice Clerk (Aitchison) at page 158. In the present case there were a large number of dissimilarities and such similarities as existed were not sufficient to allow the application of Moorov.  In reply, the advocate depute submitted that the starting point for the Crown was that each complainer had positively identified the appellant. For corroboration the Crown had relied on Moorov and reference was made to Paterson v. H.M. Advocate 1999 S.C.C.R. 750 where one of the charges had involved one assailant and the other charge had involved two assailants. In that case the test to be applied, when there were similarities and dissimilarities between the offences founded on by the Crown, had been set out by the Lord Justice Clerk (Cullen) at page 755E, namely, whether it could be affirmed that on no possible view were the similarities insufficient to determine that there was a connection between the offences which would justify an inference that they were "instances of a course of criminal conduct systematically pursued by the accused person". In the present case, both offences had involved the use of a syringe and a threat of infecting the complainer with a disease. Both offences had taken place in Greenock and there had been only five days between them. It was accepted that in the case of charge (1) it was the co-accused, and not the appellant, who was wielding the syringe but the appellant had been charged on the basis that he and the co-accused had been acting in concert. There was no criticism of the directions which the sheriff had given to the jury in relation to Moorov. It was submitted that the dissimilarities were not so great as to render the Moorov doctrine inapplicable. The sheriff had been right to reject the no case to answer submission. This was not a case where it could be said that the similarities were insufficient to entitle the jury to convict.  We will return to ground of appeal 2 later in this Opinion.  We now turn to the grounds of appeal which allege that the sheriff misdirected the jury, namely grounds of appeal 5, 6, 7, 8 and 9, and it will be convenient to deal first with ground of appeal 6 which was described by counsel for the appellant as fundamental. It alleges that the sheriff failed to give the jury any directions about the approach which they should take to the identification evidence. In particular, he did not direct the jury that experience had demonstrated that such evidence can be fallible nor did he invite the jury to consider what opportunity each of the complainers had to identify their assailants. Since the evidence of each of the complainers was critical to conviction, such directions were necessary to ensure a fair trial.  In his charge to the jury the sheriff gave the following directions in relation to identification:
"You'll remember, ladies and gentlemen, now one of the essential facts is the question of identity - who committed these particular offences? If we look first of all at charge one - and I will speak in more detail about the details of charge one in a minute, but there is one particular principle that I want to deal with at this particular stage, ladies and gentlemen.
If you accept the evidence of Mr Mitchell as credible and reliable he positively identifies Mr Beaton as one of the people who assaulted him with intent to rob. I think the phrase he used when he was pressed on this matter - I think he used it more than once - was he was as clear as he can be, as I noted what he said, but that is not sufficient, ladies and gentlemen, because there is no other evidence on the question of identity of Mr Beaton and if you remember what I was saying about corroboration, you need two sources.
However, you can look at charge three and, subject to what I am about to say to you, you may be able to find corroboration from charge three, and again this is dependent on your accepting the evidence of Mr Laird as credible and reliable.
Mr Laird, if you accept that evidence, positively identified Mr Beaton as the person who robbed him in his taxi. He couldn't be shifted from that despite fairly strenuous, fairly straightforward cross-examination. He could not be shifted on that, despite being shown Mr Altizio. So, if you are satisfied that Mr Laird is credible and reliable and he positively identifies Mr Beaton, then there is a procedure whereby his positive identification can corroborate the positive identification of Mr Mitchell".
"Ladies and gentlemen, you have had the benefit of hearing evidence from Mr Altizio. Mr Keenan described his evidence as impressive. Whether you agree with that description is a matter entirely for you, ladies and gentlemen. However, I would ask you to look very carefully at the evidence of Mr Altizio. Remember how he suddenly changed his attitude when he was told by the Crown of 'you're not going to be prosecuted in respect of this matter'. Remember not only how quickly he then decided to tell you it was not Mr Beaton, it was him, but how quickly he then proceeded to describe the offences. Was he able to do this because he had committed these crimes as he maintains, or was it because he had been told about them? That is a matter entirely for you, ladies and gentlemen."
Decision We find it convenient to deal first with ground of appeal 6, which was described by counsel for the appellant as being fundamental and which relates to an alleged misdirection by the trial judge in respect that he failed to warn the jury to consider the evidence of identification with particular care.  In February 1977 the Lord Justice General (Emslie) issued a Practice Note which contained the following passage:
"2. A typical example of the problem is found in the case in which the only evidence inculpating the accused in the commission of a proved crime is evidence of visual identification by witnesses in circumstances in which their opportunity for accurate and reliable observation of the perpetrator has been limited in time or otherwise or merely fleeting, and where the accused was not previously known to them, or where memory may have been impaired for one reason or another. In such a case, and indeed in many cases in which acceptance by a jury of evidence of visual identification is essential to a conviction, the risk of conviction on mistaken identification by honest witnesses cannot wholly be excluded. To reduce this risk to a minimum in cases of this kind and also in cases in which the trial judge himself is of opinion that some critical evidence may be of doubtful quality - for whatever reason - he shall continue to follow the sound practice -
(i) of reminding the jury of the vital importance of approaching the
assessment of the weight which ought to be given to the evidence in question with particular care; and
(ii) of assisting the jury by indicating or suggesting for their consideration the tests which in the particular circumstances of the case they could usefully apply to that evidence to measure its quality and reliability and thus reach a sound conclusion on whether to accept, reject or discard it." (see Webb v. H.M. Advocate 1996 J.C. 166 at page 170).
"When identification is in issue in a case, the trial judge may feel it desirable to remind the jury that errors can arise in identification and that there have been cases of mistaken identity with the result that the jury must consider the evidence of identification with some care. A trial judge may go on to remind the jury (if this is the case) that the witnesses were not familiar with the person whom they identified prior to the occurrence of the alleged crime. That being so the jury may wish to ask themselves how long the witness had the person whom he identified in view - whether it was a mere fleeting glance or something more. Whether the person concerned was clearly visible. He may also suggest that the jury may wish to ask themselves how positive the identification was and whether the person identified was nondescript or had some distinctive features and characteristics. However, precisely what the trial judge says in this connection is a matter for his discretion."