Appellant: J. Hamilton; Drummond Miller, Edinburgh

Respondent: A. Di Rollo, A.D.; Crown Agent

5 July 2011

[1] The appellant was convicted on 19 March 2009 at Greenock Sheriff Court of a charge in the following terms:

"on 5 January 2008 at Balfour Street, Port Glasgow, you ... did assault Margaret McIlvenny, aged 89 years, care of Strathclyde Police, Greenock, and seize hold of her handbag containing a purse, personal items, a quantity of groceries and £30 or thereby of money and cause her to lose her balance and fall against a wall there and rob her of said handbag and contents

you ... did commit this offence while on bail, having been granted bail on 31 August 2007 at Greenock Sheriff Court."

He was sentenced to thirty three months detention and has served that sentence.

[2] The appellant lodged a special defence of alibi which was read to the jury at the outset of the trial. In support of the alibi he relied upon inter alia the terms of a statement he made in the course of police interview. He now appeals against conviction on two grounds which are inter-connected and which relate to the way in which the sheriff dealt with the defence case and in particular the special defence. In the first place, he contends that the sheriff erred by directing the jury to disregard the special defence on the view that no evidence had been led which bore on the detailed terms of the alibi lodged. In the second place, he maintains that that direction was in any event apt to confuse the jury when read in tandem with the sheriff's directions about how the jury should treat his statement to the police.

[3] There was no issue at the trial over the commission of the crime alleged. The sole issue was whether the Crown had proved that the appellant was the perpetrator. For that the Crown relied on: the eye witness evidence of the complainer and that of a passer by who was alerted to the offence when he saw something happen that was "not quite right"; the terms of a joint minute relating to their respective identifications of the appellant at a VIPER identification parade and the examination of images from CCTV footage at Port Glasgow railway station; and the evidence of the police officer who detained the appellant. The Crown case was concentrated on that evidence. However evidence was also led by the procurator fiscal depute of the terms of a police interview of the appellant while he was detained.

[4] While the CCTV footage did on one view provide some support for the appellant's contention that he was not at the locus at the time of the robbery but elsewhere, the principal foundation for that line of defence was the statements made by the appellant at interview. In terms that are consistent with his statements, his alibi was as follows:

"... between the hours of 12.30 and 13.30 when the crime libelled is believed to have been committed, the Panel was successively within various streets in Greenock Town Centre; at Greenock Central Railway Station; on a train between Greenock Central Railway Station and Port Glasgow Railway Station; within various streets in Port Glasgow Town Centre; on the main A8 road, Port Glasgow, between the Town Centre and the Newark Roundabout and thereafter in the Robert Street area where he eventually was met by police officers."

[5] In his report to this court the sheriff states that he considered that the statement was not a "mixed" statement since it was not in any way incriminatory. When charging the jury, however, he proceeded to treat it as a mixed statement, which it plainly was. The robbery took place fairly close to Port Glasgow railway station. The statement therefore placed the appellant in the area surrounding the locus at around the time of the commission of the offence. On the other hand, it also distanced the appellant from the locus and from the commission of the offence.

[6] Against that background we consider that the appellant's alibi, supported by his answers at interview, ought to have been left for the jury to consider in the light of appropriate directions. Instead the sheriff directed the jury as follows:

"... at the outset of this trial there was read to you the special defence of alibi. You totally disregard that now. There has been no evidence led about the question of alibi, so you can forget all about that particular special defence."

We agree with the submission of Mr Hamilton, who presented the appeal for the appellant, that the sheriff erred by directing the jury to disregard the special defence of alibi.

[7] As we have already noted, in addition to the statement, some of the evidence derived from the CCTV footage was on one view consistent with the position set out by the appellant at the interview. The timing of the CCTV images might also have helped the appellant to distance himself from the commission of the offence. There was clearly, therefore, evidence before the jury which, if they had accepted it, would have supported the alibi. In the course of his charge the sheriff apparently recognised this, at least in relation to the statement, and told the jury both before and after his direction about the special defence that, if anything in the statement left them with a reasonable doubt about the Crown case, they should acquit the appellant. Thus the sheriff added confusion to the mix. We also accept Mr Hamilton's submission that these directions, when combined with the misdirection in relation to the special defence, must inevitably have caused confusion in the minds of the jury as to the significance to their deliberations of the terms of the statement.

[8] The advocate depute made a powerful submission to the effect that there had nevertheless been no miscarriage of justice given the evidence available and the terms of the charge as a whole. No no case to answer submission had been made. The case identifying the appellant as the perpetrator of the robbery was a compelling case of eye witness and circumstantial evidence combining to incriminate the appellant. She further submitted that by withdrawing the alibi the sheriff removed from the minds of the jurors any notion that the appellant might have the onus of establishing anything and threw the focus squarely onto the Crown case and the requirement to be satisfied of the guilt of the accused. The sheriff's directions as to the burden and standard of proof were clear. In addition he had given the jury careful directions about identification. Finally the sheriff had twice directed the jury that, if anything said in the statement left him in reasonable doubt about the appellant's guilt, they were bound to acquit him.

[9] In our opinion the misdirection in this case, being a direction to disregard the defence position on the central issue in the trial, namely identification, has inevitably resulted in a miscarriage of justice. While the sheriff's directions on the onus and standard of proof and on the question of identification were clear and accurate so far as they went, their clarity and accuracy were undermined by the direction to disregard the special defence. Standing the bald and peremptory terms in which the direction to disregard the alibi was given, the direction to acquit should any part of the statement create reasonable doubt were likely to have left the jury confused and uncertain about what in the statement they could take into account. We find ourselves unable to say with any degree of confidence what decision the jury would have reached had they been properly directed on the special defence of alibi and the relevance of the statement to it. There is a realistic possibility that they would have returned a different verdict. We are accordingly satisfied that there has been a miscarriage of justice and that the appellant's conviction should be quashed.