APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Philip Lord Kingarth Lord Mackay of Drumadoon |
[2006]
HCJAC 63
Appeal
No: XC759/05 OPINION OF THE COURTdelivered by LORD KINGARTH in NOTE OF APPEAL AGAINST CONVICTION by SUSAN LOUISE LAW Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: A. Ogg,
Solicitor/Advocate; Balfour &
Manson, Edinburgh
Alt: A. Stewart, Q.C.,
A.D.; Crown Agent
23
June 2006
"on 8
February 2004 at 15B Arkleston Court, Paisley you JAMES WEIR and SUSAN LOUISE
LAW did assault Paul Carter, then residing there, and did repeatedly strike him
on the head with a knife or similar instrument, bind his wrists, compel him to
get into a bath and compel him to attend at 86 Gallowhill Road, Paisley, with
the intention of obtaining money there, all to his severe injury and permanent
disfigurement."
The appellant appeals against this
conviction.
[2] The
ground of appeal advanced in the Note of Appeal, and which was argued before
us, is that the trial judge erred in repelling a submission of no case to
answer in respect of charge 2, which had been
made on the appellant's behalf at the close of the Crown case. The submission made was to the effect that
there was insufficient evidence to corroborate the direct evidence of the
complainer as to the appellant's involvement, along with her co-accused, in the
commission of the offence.
[3] As
reported by the trial judge the complainer's evidence was:
" ... that
Weir and the appellant, who were boyfriend and girlfriend, visited him in the
complainer's flat at
[4] There
was, it seems, no other eye-witness evidence of what happened in the
complainer's house. The trial judge
explains in his report, however, that he took the view that there was evidence
which a reasonable jury could treat as corroborative of the complainer's
account. He informs us:
"First,
there was the CCTV footage which showed the appellant and Weir arriving in the
block of flats at Arkleston Court at about 10.30pm on the evening of Friday 7
February 2004 and the appellant's not leaving until 7.25am on the following
morning. In the course of the evening,
the complainer and Weir left the block of flats to buy drugs and the CCTV
showed them returning at about
Secondly,
there was the evidence of Mrs Carter concerning the appellant's behaviour when
she was in the complainer's parents' flat between about
Mr John
Carter, the complainer's father, spoke of hearing the close door being kicked
open at about
[5] In
the event neither accused gave or led any evidence in the trial.
[6] In
presenting the appeal Miss Ogg accepted the trial judge's rehearsal of the
evidence, save in two respects. Miss Ogg
argued that it could not properly be concluded from the CCTV coverage that
after the appellant had entered the block of flats during the evening of 7
February, she had not left again until
[7] We
have come to the clear view - agreeing with the submissions of the advocate
depute - that when all the circumstances of the evidence referred to by the
trial judge are considered together, and the principles referred to in Fox v H.M. Advocate are applied, it cannot be said that it was not open
to the jury to find in that evidence confirmation or support of the direct
evidence of the complainer as to the appellant's participation in the
offence. We consider it significant, inter alia, that it was open to the jury
(as we are informed by the trial judge) to take the view that the CCTV evidence
showed the appellant seeking to hide the complainer's injured face from the
camera as he, with his head on her shoulder, was led by her from the building,
with the co-accused in front (consistent with what had been been described by
the complainer himself). Further, we
agree with the advocate depute that the evidence of the complainer's parents as
to how the appellant behaved and reacted when she arrived with the complainer
at their house was not only consistent with the complainer's own account but
capable of being regarded as strongly indicative of the appellant's guilt. We did not find Gallagher v H.M. Advocate,
which was a decision on its particular facts, to be of any real
assistance. Although it is unnecessary
to go further, there seemed to us to be force in the advocate depute's further
submission that, given the nature of the whole terms of the charge in the present case, the
evidence referred to by the trial judge in his report could readily have been
regarded, not merely as circumstantial evidence, but as direct evidence of the
appellant's involvement in the commission of the offence.
[8] The
appellant's ground of appeal based on the trial judge's rejection of the
submission of no case to answer therefore falls to be rejected.
[9] There
remains for consideration at a later date a supplementary ground of appeal,
which was lodged on the date of the appeal hearing. That supplementary ground
of appeal is based on what is said to be fresh evidence which the co-accused
now wishes to give, inculpating himself and exculpating the appellant. It is said that a reasonable explanation exists
as to why that fresh evidence was not
heard at the trial, namely, that, so far as the appellant was concerned, her
co-accused was not a compellable witness.
It was only with some hesitation that we allowed this ground of appeal
to be received, given not only the lateness of its presentation (albeit some
explanation for that was tendered) but also having regard to the apparent
history of the positions adopted on behalf of the appellant and the co-accused
at the trial. In the course of the
submissions as to whether this
supplementary ground of appeal should be received we were, however, made aware
that certain wider legal questions might be thought to arise, which have not
yet been decided by this court - see e.g. Mills
v H.M. Advocate 1999 S.C.C.R.
202, and the unreported decision in Gray
v H.M. Advocate, 8 February
2006. We have, however, asked for a
further report from the trial judge to enable him to give such assistance as he
can as to the positions and lines of defence, which were adopted on behalf of
the appellant and the co-accused, in the course of the trial.