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Cite as: [2004] ScotHC 43

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Kelly v. Her Majesty's Advocate, [2004] ScotHC 43 (22 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Macfadyen

Lady Cosgrove

Appeal No: XC234/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION

BERNARD KELLY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Ms. A. Ogg, Solicitor Advocate; J.C. Hughes & Co., Glasgow

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

22 June 2004

[1] The appellant has appealed against his conviction on a charge in the following terms:

"on 7 December 2001 you did whilst acting along with others whose identities are to the prosecutor meantime unknown, break into the shop occupied by H. Samuel Limited at 93 High Street, Dunfermline, Fife and there steal a quantity of jewellery to the value of £50,007.00".

[2] The ground on which the appeal is based is that the trial judge was in error in failing to uphold a submission of no case to answer which was made at the close of the Crown case.

[3] It is not in dispute that on the evening of 7 December 2001 a number of persons broke into the shop and stole the jewellery. According to the evidence the premises had an intruder alarm system. At the rear was a private car park, to which access could be obtained by a back door in the basement of the shop. Next to the car park was an area of rough ground leading to a wall running along a lane which joined the High Street to Canmore Street. Off Canmore Street there was a public car park which was bounded on one side by the lane. At about 7.42 p.m. the local police received notification that the intruder alarm had been activated at the shop. At about 7.45 p.m. a police officer, who was on mobile patrol, was instructed to go to the shop where he found that the back door in the basement had been forced open. There were wet footprints on the floor of the basement. On the ground floor most of the gold jewellery had been stolen from the display window.

[4] Evidence was given by Miss Alison Dorran that while she was sitting in her car in the public car park about 7.20 p.m. or 7.40 p.m. she saw two men clambering over the wall. One of them passed a bag to the other, who then carried the bag with one hand but seemed to be "quite hindered by it". The bag was a large freezer bag, which appeared to her to have red and white stripes. The two men were wearing dark clothing and their heads were covered. She could not see their faces. They walked towards a red car which, according to the witness, was of an "Escort" type. A third man then followed the first two. He was carrying a similar sort of bag, which seemed to be heavier than the other one, as he was carrying it with both hands in the region of his mid-chest. One of the first two men climbed into the driver's seat, while the remaining two men got into the front and rear passenger side seats. The car reversed at great speed towards a corner of the car park, before being driven out of it. The witness, who by then was highly suspicious, took a note of the registration number of the car (G504 UVS) on a piece of paper. She then went personally to report what she had seen at the local police station. In cross-examination she agreed that the three men whom she had seen might have been youths. Although she was unable to give their ages she thought they were all over 16 years of age.

[5] That same evening a police officer received instructions about 7.50 p.m. to wait at a cross-roads about six miles west of Dunfermline in order to look for a car which was being followed by a police car. Another police officer received a radio message to stop and await a red car with the registration number G504 UVS. About five minutes later the car passed him. He notified police control and then followed it. When the other police officer's car joined him he activated his blue flashing light. The two officers stopped the car, which was a Vauxhall. The appellant was the driver. According to the evidence of the police officers he was informed that there had been an incident in Dunfermline and that he was being detained as he was suspected of involvement in a theft by housebreaking at the shop. One of the police officers described the appellant as making no response, and as having an air of resignation. He did not seem to be surprised and asked no questions. He was then taken to Dunfermline Police Station.

[6] There was evidence from the reporting officer in the case that the distance between the shop and the point at which the second of the police officers had first seen the car was about one and a half miles. The reporting officer also indicated that there were two possible routes by which that point might be reached from the shop. Each of those routes had been time-tested by vehicle. The time taken by the vehicle was five minutes eleven seconds in one case and six minutes forty seconds in the other. The car which was being driven by the appellant had travelled a further three to five miles beyond that point before it was stopped. It had been en route for the Kincardine Bridge.

[7] A search of the car showed that there were a number of items which were immediately visible to anyone looking into or entering it. These comprised two black woollen gloves on the front passenger seat, a mobile phone on the dashboard, and three jackets lying on the rear seat. In addition there was a large carrier bag with pink, white and blue stripes which was found folded flat on the rear seat. It may be noted that Miss Dorran gave evidence that it was similar to the bag which she had seen. A number of further items were found in the search which were not immediately visible to someone looking into or entering the car. These were a jewellery tray with gold chains which was under the front passenger seat, and two earrings, one of which was under the rear seat and the other was in the boot. Other items in the boot comprised a beige or cream balaclava with holes for eyes and mouth, a hammer, a sledge hammer and further gloves. The boot had been found to be jammed and could only be opened by lifting up and folding over the rear seat of the car. A police officer gave evidence that the jackets and gloves were damp. The tray of chains and the two earrings were identified by members of the staff of the shop as having been in the gold display window of the shop on 7 December 2001.

[8] An examination of the shop led to the taking of footprint impressions from the tiled area at the back door and from the door itself, as it had been kicked open. Three different types of footprint were found. The appellant's boots had been checked against each of them. They had not matched any of them.

[9] Police enquiries revealed that the registration number of the car was not the correct number for it. The car was carrying false number plates. The correct number plates were lying loose under carpeting in the boot. A later search of the car on 8 December 2001 led to the discovery of two further pairs of gloves, one on the front nearside passenger seat and the other in the pocket of a nearside door.

[10] The Crown case also included evidence as to a police interview of the appellant, in which he gave an account of being driven from Glasgow to Dunfermline by a friend, whom he refused to name, in order to meet someone in a pub. He arrived in Dunfermline at about 6.30 or 6.45 p.m. He had never been in Dunfermline before. The car was parked "in a wee side street". The appellant said that he was then left alone in the pub for about an hour until his friend came back, gave him the car keys and asked him to drive the car back to Glasgow. He also refused to tell the police the identity of the person whom he was to meet in the pub.

[11] For the appellant Miss Ogg pointed out that, whereas the Crown had maintained that it was open to the jury to infer that the appellant had been directly involved in the commission of the crime, this could not be supported in the light of the evidence. On the evidence of Miss Dorran only three persons had been involved. On the premises were the footprints of three persons, none of whom was the appellant. There was no evidence that a fourth person had been involved at any stage. In these circumstances the only remaining question was whether there was sufficient evidence to convict the appellant on the basis that he had acted art and part with those who had committed the crime. It was evident from the report of the trial judge that this was the view which she had taken of the case.

[12] However, there was insufficient evidence to enable the jury to infer that the appellant knew that the car had been involved in the commission of the crime. The appellant's use of the car, which was based entirely on the fact that he had been found driving it towards the Kincardine Bridge was consistent with the account which he had given at the police interview that he had been requested to drive it back to Glasgow. All the items in the car which might have excited suspicion were concealed either beneath its seats or in the boot.

[13] The Advocate depute defended the decision of the trial judge that there was a case to answer by relying on the evidence as to timings which had been given at the trial. The period of time between the commission of the crime and the point at which the appellant had been observed to be driving the car was relatively short. The car was being driven with false number plates, and the clothing in the back of the car was damp. The Advocate depute also founded on the fact that when the car was stopped and he was informed of the police investigation the appellant displayed an air of resignation. It was of some significance that thereafter he had not been able to explain to the police the location of the public house and had declined to name his travelling companion or the person whom he was to meet in the pub. The Advocate depute accepted, however, that on any view the Crown case was thin.

[14] We consider that the evidence was insufficient to justify the repelling of the submission that there was no case to answer. In view of the state of the evidence it seems to us to be inevitable that the only question was whether there was sufficient evidence from which the jury could infer that the appellant had been acting art and part with the persons who perpetrated the crime. However, the evidence was entirely consistent with the car having been driven from the shop to some other location in Dunfermline where the appellant took over as its driver. There was nothing visible in the car which would have led him to suspect that it had been used in connection with the commission of the crime, let alone to indicate that he had been involved in a supportive role. The attitude which the appellant displayed when the police officers came upon him, and the fact that he did not provide various details to the police at his interview, even when taken together with all the other evidence on which the Crown have founded falls short of establishing a sufficient case to answer.

[15] In these circumstances the appeal against conviction is allowed and the appellant's conviction is quashed.