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Cite as: [2005] ScotHC HCJAC_20, [2005] HCJAC 20

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Purawec v. Her Majesty's Advocate [2005] ScotHC HCJAC_20 (03 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lady Paton

Lord Clarke

[2005HCJAC20]

Appeal No: XJ1282/03

OPINION OF THE COURT

delivered by LORD HAMILTON

APPEAL

BARRY PURAWEC

Appellant;

against

PROCURATOR FISCAL, Paisley

Respondent:

_______

Appellant: Miss Ogg, Solicitor Advocate; Balfour & Manson

Respondent: Mackay, A.D.; Crown Agent

3 March 2005

[1] The appellant was charged on summary complaint in the Sheriff Court at Paisley with three offences, all of which were alleged to have been committed on 5 October 2003 at a particular address in that town. The charges were of breach of the peace, of assault on Karen Blakely and of assault on Barry Purawec, Junior, then aged 10 years. The appellant pled not guilty to all of these charges. The trial took place on 9 February 2004.

[2] Prior to the commencement of the trial applications were made by the Crown under section 271(6) of the Criminal Procedure (Scotland) Act 1995 to authorise the use of a screen during the testimony of Barry Purawec, Junior and of another Crown witness, Nichola Burns, a vulnerable person aged 16 years. These applications were granted. Evidence was led by the Crown from Karen Blakely, Barry Purawec, Junior and Nichola Burns. At the close of the Crown case the solicitor acting for the appellant made a submission that there was no case to answer on any of the charges. The Crown indicated that it did not intend to proceed with the first charge but maintained that there was a sufficiency of evidence in relation to charges (2) and (3). The sheriff repelled the defence submission in relation to these charges. No evidence was led for the defence. After hearing submissions the sheriff convicted the appellant on charges (2) and (3), subject to certain restrictions. Against that conviction he appeals to this court.

[3] It is not disputed that there was sufficient evidence that the crimes of which the appellant was convicted were committed at the time and in the place alleged in these charges. The sole issue arising in this appeal is whether there was in law sufficient evidence that the appellant was the perpetrator. When the case called for hearing, the Advocate depute intimated that the Crown would not be resisting the appeal; but the court required parties to present argument on the issue.

[4] Miss Blakely gave evidence of the commission of the crimes charged and in court identified the appellant as the perpetrator. She also testified that the appellant was the father and stepfather respectively of Barry Purawec, Junior and Nichola Burns. Barry Purawec, Junior testified that the person who had come to the house on the night in question and perpetrated the assaults was his father, whom he named as Barry Purawec. In the course of his evidence he referred to the perpetrator as "Dad". Nichola Burns testified that the person who had come to the house and perpetrated the assaults was her stepfather, whom she also named as Barry Purawec. In her evidence she referred to him as "Big Barry" and to Barry, Junior as "Wee Barry". The applications under section 271(6) having been granted and implemented, neither witness made a visual identification in court of the appellant as the perpetrator. No other evidence was led; nor was any minute of admission or of agreement lodged.

[5] The submission made by the defence to the sheriff was that the identification of the appellant in court by Miss Blakely was uncorroborated by any other evidence to the effect that the appellant was the perpetrator. The procurator fiscal depute invited the sheriff to repel that submission on the basis that sufficient identification had been made out from the evidence of Miss Blakely's dock identification and the confirmation she provided of the family link between the appellant and the other two witnesses. In the Stated Case the sheriff explains that he took the view that there were two sources of evidence of identification. He says:

"Miss Blakely identified the appellant as the perpetrator; she is one source. She also confirmed that he was the father and stepfather of the other crown witnesses. The children confirmed that the perpetrator was the father/stepfather; they are separate sources, that link having been established".

He refers to Craig v. H.M. Advocate (High Court of Justiciary, 12 October 1995, unreported) and to Robson v. H.M. Advocate 1996 S.C.C.R. 340. He also notes that in the present case it was never suggested in cross-examination that the appellant was not the father/stepfather of the witness concerned; rather it was suggested that the allegations were untrue or exaggerated or had been suggested to the witnesses.

[6] Miss Ogg, in support of the appeal, renewed the submission made to the sheriff. The only evidential source that the appellant was the perpetrator was, she argued, Miss Blakely. She, and she alone, identified the appellant as the perpetrator, both in respect of her identification in court and her testimony that the appellant was the father/stepfather of the children. No other witness had spoken to the man in the dock being the father/stepfather. He had not, in terms of the complaint, been prosecuted as having committed either offence in any special capacity; accordingly, there was no deemed admission that the appellant had any particular relationship to either of the vulnerable witnesses (1995 Act, section 255). No evidence had been led to allow section 271(11) or section 280(9) to come into play. It was unclear from the Opinion in Craig v. H.M. Advocate what evidence had been led to identify the appellant in that case as the father of the complainers. Robson made it plain that indirect proof of identification depended on evidence from more than one witness that the person in the dock was the person answering the description spoken to by the children. Reference was also made to Wilson v. Brown 1947 J.C. 81, specially per Lord Mackay at pages 94-5 and Lord Jamieson at pages 96-7.

[7] The Advocate depute, in explaining the basis upon which the Crown was not resisting this appeal, stated that there would have been a sufficiency if evidence had been led by the Crown from another witness who, by reference to the appellant's name and/or his relationship with the vulnerable witnesses, had in court linked him with the person having that name or relationship; but no such witness had been led. In these circumstances, on a proper analysis, identification of the appellant as the perpetrator depended solely on the evidence of Miss Blakely, which was insufficient in law. Even if the appellant had at the outset of the proceedings answered to the name "Barry Purawec", the Crown could not rely on that circumstance as it formed no part of the Crown's proof.

[8] The lay observer might find the Crown's concession of this appeal surprising; but we have come to the view that it is well-founded. In the absence of full argument on the matter, this is not a case in which to attempt a detailed analysis of the rules of corroboration. However, a few observations are called for. It is indisputable that, subject to certain statutory exceptions, no person can in Scotland be convicted of a crime unless there is evidence of at least two witnesses implicating the person accused with the commission of the crime with which he is charged (Morton v. H.M. Advocate 1938 J.C. 50 at pages 54-5). That implication may be based on direct identification, on indirect identification or on a combination of direct and indirect identification. But, whatever the basis, there must be at least two independent sources of evidence which, taken together, link the crime charged with the person appearing before the court as the accused.

[9] The burden of proof rests on the Crown throughout. Accordingly, the fact that evidence led by the Crown touching on identification is not challenged by the defence does not absolve the Crown of the basic requirement to adduce corroborated evidence in support of the requisite identification - although in some circumstances, it appears, the attitude adopted by the defence has been regarded as significant.

[10] In the present case the Crown sought at trial to rely on direct identification (from Miss Blakely who identified in court the appellant as the perpetrator) and, as corroboration, on evidence from the vulnerable witnesses to the effect that the man whom they respectively knew as "Dad" and "Big Barry" was the perpetrator. But a necessary link in the chain of indirect identification, of which the evidence from the vulnerable witnesses might have proved part, was evidence that the man in the dock (the present appellant) was the man answering the descriptive names given by these witnesses. Only Miss Blakely spoke to that link. But, as she was not, in the relevant sense, an independent witness, being the principal witness as to identification, no corroborated proof was adduced.

[11] While each of Craig v. H.M. Advocate and Robson v. H.M. Advocate involved indirect evidence of identification, neither supports the decision in this case to repel the submission of no case to answer. In Craig the "other evidence in the case from which identification of the appellant as their father could be inferred" is not further described in the Opinion; but, regard being had to the circumstances of that case, it seems likely that the necessary link was established by independent corroborated evidence. That link was also so established in Robson. The court in Robson indicated (at page 345F) that, where the evidence of a child or other vulnerable witness is taken by means of a live television link or from behind screens, different considerations may arise from those applicable in the context of the general rule of practice described in Bruce v. H.M. Advocate 1936 J.C. 93; but there was no suggestion that, in cases where such means were taken, the general principles of corroboration could be departed from.

[12] Nor, it seems, can the evidential difficulty in the present case be met by adopting a different approach. It is true that, quite apart from Miss Blakely's evidence, there was evidence from two other sources (namely each vulnerable witness) that the assaults were committed by a described individual; if it had been established by sufficient evidence that the description applied to the appellant, the necessary link might in that way have been made. But it seems reasonably clear from Muldoon v. Herron 1970 JC 30 (as read with Bennett v. H.M. Advocate 1976 J.C. 1) that, in the absence of some other source of evidence, that link itself requires to be spoken to by at least two witnesses. Accordingly, if, for the purpose of testing sufficiency, Miss Blakely's dock identification of the appellant as the perpetrator is left out of account and her evidence used for the purpose of speaking to the descriptive link, that evidence stands uncorroborated on that matter and the Crown case again fails for lack of sufficiency of evidence.

[13] It was rightly accepted by the Crown that the circumstance that the person named by each of the vulnerable witnesses was "Barry Purawec" and that the person against whom the complaint was directed was also so named does not advance proof of the assertion that the man named by these witnesses was the person appearing as accused.

[14] In all these circumstances this appeal must be allowed, all three questions posed in the Stated Case being answered in the negative.

[15] We would only add that the outcome of this appeal should be noted by those who have responsibility for prosecuting cases which involve children or other vulnerable witnesses, for the taking of whose testimony special arrangements are being made. Particular attention requires to be given as to how proof of the identity of the perpetrator is in such cases to be established, whether under statutory procedures or otherwise.