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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Macfadyen
Lord Johnston
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[2006] HCJAC 39
Appeal No: XC157/04
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
APPEAL
by
KEVIN HERRITY
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant: Shead; Gordon Ritchie & Co., Paisley
Respondent: Stewart, A.D.; Crown Agent
22
March 2006
[1] On
27 January 2004 at Glasgow
Sheriff Court the appellant was found guilty by
a majority of the following charge:
"On 26
October 2002 within the car park at the Taj Restaurant near to Paisley Road
West, Glasgow you did, whilst acting with another to the Prosecutor meantime
unknown, assault James McNeill and Fiona McNeill, then sitting within motor
vehicle registered number P111 FEE, both c/o Helen Street Police Office,
Glasgow, open a door of said motor vehicle, present a knife at them and demand
a bag and jewellery from them and rob them of a handbag and contents, a
quantity of jewellery and a quantity of money;
you did commit this offence while on bail, having been granted bail on
17 July 2002 at Glasgow Sheriff Court."
[2] He
had originally lodged an appeal against sentence but this was withdrawn before
us.
[3] The
entire evidence against the accused was based on identification from the
complainers who were husband and wife and who both identified the accused in
the dock as the person who had perpetrated the crime and also picked him out at
a previous identification parade and from an exhibition of photographs shown to
them.
[4] The
appellant lodged the following ground of appeal:
"At the
commencement of proceedings the Sheriff was advised that the only issue in the
trial was that of identification. The
trial then commenced and the first witness was called to give evidence. After the witness confirmed the identity
[sic] the Sheriff then turned to the jury and addressed the jury on the
procedures that would be adopted in the course of the trial. During this address the witness remained in
the witness box. In the course of the
address the Sheriff indicated to the jury the identity of the Procurator Fiscal
and the defence solicitor and indicated that the defence solicitor acted for
the accused. At this stage on at least
two occasions the Sheriff gestured towards the accused who was sitting in the
dock. Given that the only issue at the
trial was the question of identification of the accused, the Sheriff having
identified the accused in Court in the presence of the first witness gave rise
to the possibility of there being a miscarriage of justice."
[5] We
were informed from the sheriff's report that the narrative in the ground of
appeal was substantially correct in as much that the wife complainer, as the
first witness, was sworn in and was in the witness box at the time when the
sheriff turned to the jury pointing out the procurator fiscal as representing
the Crown and the solicitor in question as representing the accused. It is maintained that as he did the latter he
gesticulated or gestured towards the accused in the dock, although he said
nothing more. In his report to us the
sheriff cannot remember whether he did make such a gesture or indication but we
are prepared to approach the matter on the basis that he could well have done.
[6] There
is no complaint as to the directions given by the sheriff to the jury at the
conclusion of the evidence nor any question of lack of sufficiency of
evidence. The appeal was solely
concerned with the issue to which we have just referred and to whether or not
it amounted to a miscarriage of justice, or at least rendered the trial unfair
in the particular context.
[7] It
also has to be stated that Mr. Shead made no criticism of the use of dock
identification in this case and did not therefore rely upon anything said by
the Privy Council in the recent decision of Holland v H.M. Advocate
2005 SCCR 417.
[8] Mr.
Shead's submission, accepting as he had to that the sheriff had not made any
suggestion to the jury at the point of time in question that the accused had
committed the crime, described the situation as one of "appearances" in the
sense that indicating the accused in the dock at least gave rise to the
possibility that the witness's subsequent evidence and identification could be
jeopardised or influenced by that particular exercise to an unreasonable extent
or to a material extent in any event.
[9] In
reply the advocate depute took us to the passages in the evidence of both
witnesses particularly in cross-examination where they confirmed their
identification, in the case of the husband, to a greater extent than he had
admitted in chief. The jury was
therefore faced with two witnesses who had positively identified the accused in
court as the perpetrator of the crime together with the evidence also emanating
from the same two witnesses as regards the identification parade and the
photographs. The advocate depute drew
the sharp distinction between indicating the presence of the accused in the
dock as such and the question for the jury as to whether or not the accused had
in fact carried out the crime. He
submitted that there was no reasonable basis for suggesting anything done by
the sheriff, taken at its highest, could have had any influence on the witness
in question when it came to the matter of identifying the accused as the
perpetrator of the crime.
[10] We are firmly of the view that the distinction made by the
advocate depute is entirely correct namely between the fact that the accused
person is the person in the dock on the one hand and on the other the question
of whether or not the accused had committed the crime. Obviously the question of identification in
this case was crucial to that latter question but there is nothing we consider
the sheriff is said to have done which could in our view have any material
influence on the witness's evidence. To
describe the case as one of "appearances" in the sense of what the
well-informed bystander watching the proceedings might have taken from the
sheriff's conduct is, in our opinion, nothing to the point since the whole
matter does not bear upon the real issue before the jury, namely whether or not
the accused committed the crime, which they held by a majority that he had so
done.
[11] It is perhaps worth commenting that the practice adopted by the
sheriff of swearing in the first witness before describing what might be
described as "the cast of players" before the jury is a diminishing practice
and it may be better thought that there should be no witness in the witness box
at the time that the appropriate opening remarks by the judge are made. We understand that that is the more common
practice at this time and would seem to us to be preferable to avoid the sort
of question which has been raised in this case.
[12] However, for the reasons we have given we are satisfied this
appeal is without merit and, as was stated in open court, it is refused.
