APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Osborne
Lord Abernethy
Lord Johnston
|
[2006]
HCJAC 82
Appeal
No: XC179/05
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
NOTE OF APPEAL AGAINST CONVICTION
by
JOHN WISHART COON COOK
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
______
|
Act: Shead; Castle Law, Edinburgh
Alt: Prentice, A.D.; Crown Agent
9 November 2006
[1] After trial,
at Stirling Sheriff Court on 11
February 2005,
the appellant was convicted of two charges in the following terms:
"(001) on 09 April 2003, you did break into the dwellinghouse
owned by [the complainers] at Lochend House, Port Of Menteith, Stirling and
steal a video camera, a camera, a quantity of jewellery, a jewellery box, a
handbag, a cheque book, a spectacles cleaning cloth, a key ring, a driving
licence, a watch, a pot, a ring box, cufflinks, a pair of sunglasses and a set
of car keys; and
(002) on
09 April at Lochend House, Port Of Menteith, Stirling, you did steal motor vehicle
registered number N1 NRN;".
[2] Much of the
evidence was not disputed and was contained in a Joint Minute, particularly
with regard to the proceeds of the housebreaking and forensic evidence in
relation to two motor cars involved in the matter, one being the motor car
specified in the second charge and the other being a Vauxhall Vectra, found
abandoned not far from the locus after the event. At the time of the indictment being served
the appellant was accompanied on it by a co-accused James Patrick Paul Boyle
but, immediately before the trial started, Boyle pleaded guilty to the second
charge without any amendment. His plea
of not guilty to the first charge was accepted by the Crown. He thereafter gave evidence for the Crown
along with a local farmer named Erskine who deponed to seeing the stolen car
(the Porsche) being driven away from the locus by one person whom he could not
identify and a Caroline Dickson who deponed to the appellant attempting to sell
her a watch and some jewellery some time in April of 2003, the month when the
housebreaking took place, but she could not be precise about the date.
[3] Against that
background the appellant lodged a number of grounds of appeal but adhered to
three of them in the following terms:
"1. The
Sheriff misdirected the jury on the approach they should take to
the evidence of the witness James
Boyle. At the trial diet he had pleaded
guilty to charge 2 on the indictment.
Subsequently he gave evidence that he had not been responsible for the
theft of the car but rather that he drove the car apparently knowing that it
had been stolen. He explained that the
Appellant had brought the car to Glasgow.
Since his evidence was inconsistent with the terms of his plea of guilty
the Sheriff should have given the jury some guidance on how they should
approach this material discrepancy.
Separatim. Given the evidence linking the witness to the
theft of the car (and by implication the first charge) and the evidence of the
witness Erskine who gave a description of the thief which appeared to be
consistent with the appearance of the witness it was incumbent on the Sheriff
to direct the jury to approach his evidence with particular care. This was all the more important in the light
of the fact that the Crown presented its case to the jury on the basis that
only one person was responsible for the housebreaking.
2. The
evidence of the finding of the appellant's fingerprints on the door
of the Vauxhall Vectra and the jacket
in the car which contained the letter was not, it is submitted, sufficient to
entitle the jury to convict of either charge.
That being so it was necessary to direct the jury to acquit the
appellant if they did not accept the evidence of Boyle and Caroline Dickson.
3. The
Sheriff erred in the directions that he gave the jury on the doctrine
of recent possession. In order to apply the doctrine the jury would
have had to be satisfied that the appellant was in possession of stolen items
in criminative circumstances. It was
accordingly necessary that the jury should understand the concept of
'criminative circumstances'. It is
submitted that the directions given were inadequate for the purpose.
Separatim. As the Sheriff observed in his charge there
was no evidence to establish the value of the stolen property and accordingly
there was no basis on which to establish the necessary criminative
circumstances.
Separatim. Since there was no such evidence the Sheriff
ought not to have given the directions which he did at pages 18-19 of the charge."
[4] Grounds 2 and
3 passed the sift.
With regard to ground 1, leave was refused at the first sift but this
court allowed the matter to proceed subsequent to an appropriate
application. Accordingly, the matter was
argued before us in respect of all three grounds of appeal remaining in the
case.
[5] We shall deal
with each ground separately, since they are all freestanding. Mr. Shead attempted, at one stage, to
suggest to us that effectively the three should be treated cumulatively as
amounting to a miscarriage of justice, but we are not prepared to accede to
that position.
[6] It also
requires to be recorded that neither at the trial nor before us was it
suggested that there was insufficient evidence in the case to convict the
appellant. The grounds of appeal were
all directed towards alleged deficiencies or inadequacies in the sheriff's
charge to the jury.
Ground 1
[7] This matter
arises in a somewhat unusual way. As we
have already indicated the co-accused, Boyle, gave evidence, the substance of
which was that he had not been to Lochend House. He had only been involved with the Porsche in
Glasgow, which he had not left in the course
of the day in question. On the face of
it, it was submitted by Mr. Shead, this conflicted markedly with the terms of
the plea tendered by Boyle and accepted by the Crown which, of course, included
the locus and therefore implied, if not expressed, the position that he, Boyle,
had been there. Although the matter was
argued at some length, the real issue as we see it was simply whether or not,
in these circumstances, the sheriff should have pointed to that fact, namely
the inconsistency, in his charge to the jury and directed them to proceed, as a
consequence of it, with care. This
appeared to the position often to be taken up by Mr. Shead although, for
much of his submissions, he seemed to stop at the point of suggesting that the
sheriff was required to give "some guidance".
However, as we have said, at the end of the day the real issue seems to
us to be whether or not the sheriff failed in his duty to the jury in respect
of the fact that he did admittedly not make any reference to the apparent
conflict or, accordingly, give any warning as to how the jury should treat the
evidence of Boyle as a consequence of that issue.
[8] The advocate
depute's position in relation to this matter was a simple one. The sheriff had properly directed the jury as
to its task in relation to the assessment of evidence as a matter of
credibility and reliability and was not bound to do any more than that in the
context of Boyle's evidence The jury were
well aware of the terms of the plea and had of course heard his evidence. It was, it was submitted, entirely
a matter for them to assess what they made of it and the sheriff need not go
any further.
[9] In his report
to us the sheriff accepts that the apparent conflict was there but stated that
he deliberately made no reference to it because he was in a dilemma,
particularly not knowing precisely why the plea was taken against the
background of the evidence that Boyle actually gave and which the Crown must
have presumably have known he was going to give before he went into the witness
box. We have considerable sympathy with
that position.
[10] Properly
understood we consider that there may not in fact be an inconsistency between
the evidence and the plea in as much that he, Boyle, accepted that he had
driven the stolen car in Glasgow and was involved in its theft, as opposed to
any question of reset thus, indirectly at least, inferentially connecting him
with both the car and the locus.
Secondly, we should observe that Mr. Shead referred us to the case of Dickson v H.M. Advocate 2004 S.C.C.R. 426, a somewhat unusual case where this
court upheld a direction to the jury by the trial judge in the context of a
co-accused pleading guilty and giving evidence, that the jury should treat with
care that evidence having regard to the fact that there might have been an
inducement by the Crown in response to which the witness agreed to become a
witness and ceased to be a co-accused after tendering a plea. In that case there was some suggestion that
the Crown had indicated to the witness that, if she gave evidence in the terms
of a statement she had already given to the police, the Crown would probably
not move for sentence.
[11] We consider
that that case was exceptional, hopefully so, because this type of plea
bargaining does not commend itself to this court. What was much more important, however, was
that there was no suggestion that the inducement, if offered, was to invite the
witness to give false evidence but merely adhere to her prior statement. It should be understood that whenever a
co-accused tenders a plea and then gives evidence for the Crown in the same
matter it does not follow that some direction or advice from the trial judge to
the jury, effectively amounting to a cum
nota warning is required. We
consider that the proper course in this type of situation is to do exactly what
the sheriff did in this case, make no mention of the matter and leave it to the
jury, provided the issue has been properly focused before the jury by counsel.
[12] In this case
there is no doubt the issue was focused because Boyle was cross-examined
vigorously, to the effect that he was in fact making up all the evidence that
he gave involving the appellant.
[13] In these
circumstances, while it might have been preferable for the sheriff at least to
remind the jury of the apparent conflict between the contents of the plea and
Boyle's evidence, we do not consider he was under any obligation to do so, nor
do we consider that he in any way failed in his duty with regard to the
instructions he gave to the jury as to the assessment of witnesses,
particularly under reference to credibility and reliability.
[14] In our opinion
this ground of appeal is without substance.
Ground 2
[15] It is to be
observed that this is concerned with the Vauxhall Vectra, to which previous
reference has been made. It was found
abandoned and it contained both fingerprints and clothing attributable to the
appellant and also part of the haul from the housebreaking in its boot. There was also found a document relating to
the accused.
[16] In this
respect Mr. Shead criticised the trial judge for not directing them that the
evidence of Boyle and Dickson had to be accepted by them to establish there was
sufficient evidence to convict, the evidence relating to the car not being
sufficient in itself.
[17] This position
was vigorously challenged by the advocate depute who referred us to two cases Maguire v H.M. Advocate 2003 S.C.C.R. 758 and Curley v H.M. Advocate
1999 S.C.C.R. 467. He submitted that the
case of Maguire was particularly
significant since the only evidence there, which convicted the accused, was a
mask which was identified as similar to one used in the robbery in question and
which was connected with the accused by DNA.
So long as spoken to from two sources the court in Maguire were satisfied that that
was sufficient evidence in itself to justify a conviction in respect of the
accused having taken part in the robbery.
[18] We are
entirely satisfied in this case that the evidence relating to the Vauxhall
Vectra and the surrounding circumstances to which we have made reference would have
been sufficient in themselves to warrant a conviction, particularly having
regard to Maguire. We do not consider that case is
distinguishable. That
being our view it was unnecessary for the sheriff to direct the jury that they
must accept both Boyle and Dickson before they could convict. In these circumstances we consider this
ground of appeal is misconceived and without substance.
Ground 3
[19] It is to be
observed that this ground of appeal is entirely related to the references made
by the sheriff in his charge to the jury on pages 18 and 19 of the transcript
in relation to the doctrine of recent possession. Mr. Shead's position was that recent
possession was really nothing to the point as far as his client was concerned,
it not being established when, as a matter of time, he, the appellant, had
attempted to sell the items in question to Miss Dickson. He was also critical of the sheriff's
consideration of the question of value of the watch in question which was not
the subject of evidence and was mere speculation on his behalf. This, therefore, amounted to a material
misdirection which it was said amounted in itself to a miscarriage of justice.
[20] We have to say
at once that if we thought that this was a misdirection, and certainly the
sheriff was perhaps unwise to venture into the notion of value, in the absence
of evidence in the context of criminative circumstances, we certainly would not
hold that it amounted to a miscarriage of justice looking at the overall
evidence in this case. That being so, as
encouraged by the advocate depute so to do, we do not really need to consider
whether the sheriff misdirected the jury in this matter at all. As we have said, it was perhaps unwise of him
to go into the question of value, but what is much more important is the evidence
that the appellant was in possession of goods which were either actually proved
to be part of the proceeds of the housebreaking or, in any event, very similar
to them. That adminicle to our mind was
not so much an invitation to consider the doctrine of recent possession but
rather was evidence of having been involved in the theft, not conclusive in
itself but another factor. This ground
of appeal therefore, in our opinion, also fails.
[21] In these
circumstances, for these reasons, we do not consider there is any substance in
any of the grounds of appeal. That being so, this appeal will be refused.
[22] The appeal
against sentence did not pass the sift and there is
therefore no further live issue in this case before this court.
