Appellant: CM Mitchell; Gilfedder & McInnes (for McCusker McElroy & Gallanagh, Paisley)

Respondent: Scullion QC AD; the Crown Agent

22 October 2014

Introduction
[1]        On 23 December 2013, at the Sheriff Court in Paisley, the appellant was found guilty, by the unanimous verdict of the jury, of a charge of assault with intent to rob.  The libel was that on 9 November 2012, at Cherished Thoughts, High Street, Johnstone, he had assaulted PG, an employee, demanded that she open the till, seized her by the body, pushed her on the body and struggled with her to her injury.  There was also a bail aggravation.  On 20 January 2014, the appellant was sentenced to 22 months imprisonment.

[2]        The appeal raises one issue.  That is whether the sheriff erred in her directions to the jury to the effect that there was corroboration, of the clear evidence of identification of the appellant given by PG, in the evidence of a witness, DMcA. 

Evidence
[3]        The critical issue was one of identification.  PG was the proprietor of the shop.  She identified the appellant in court as the perpetrator.  She explained that she had seen him close up and face on.  She recalled his distinctive dark-rimmed Elvis Costello style glasses.  He had greasy hair.  The appellant had been known to her from previous visits to the shop, when he had attempted to sell bacon to local shopkeepers.  She had not seen him for some years.  On the day after the incident, PG had picked out the appellant from a series of 12 images on an emulator sheet, although these images did not have the appellant wearing glasses.  On being shown the incriminee in court, PG said that he was not the person who had been involved.  This was then a clear unequivocal identification of the appellant by the complainer. 

[4]        DC Craig Riddell viewed certain CCTV images which had been recovered from a camera outside Poundland.  It was also located in the High Street.  The images were displayed in court, but were rather grainy in nature.  They showed a man lingering outside the shop, entering it and then running out some minutes later.  DC Riddell identified this man as the appellant, whom he knew.  In fact DC Riddell had viewed other CCTV images, but these had not been produced at the trial.  He maintained that he could identify the appellant from the Poundland CCTV images alone.  He also knew the incriminee.  He accepted that there was a similarity between him and the appellant.  Nevertheless, he maintained that it was the appellant and not the incriminee who was shown on the images. 

[5]        The third witness was DMcA, who was passing the shop when, according to her evidence, the would-be robber ran past her down the street.  He had been wearing big rimmed old fashioned glasses.  For reasons which were not explored, there was no attempt to ask Ms McA to identify this person, such as by the use of emulator sheets.  When she received her citation, which contained the name of the appellant, Ms McA maintained that she thought that something had gone awry, because she knew the appellant and did not think that he had been the person whom she had seen running away.  She described the man as both wearing a hat and gesticulating at her, but neither of these aspects was shown in the CCTV images.  She accepted that she must have been wrong about these matters.  She said that she was not 100% certain that the person was not the appellant, but she did not think it was him.  On being asked to look at the incriminee, she said that he looked more like the person she had seen.  Again she was not 100% certain, but she was 85% certain that he had been the man.  At some point during the course of her evidence, she accepted that the person she saw “looked like” the appellant, even although she did not think it was him.

[6]        The defence led Bruce Duncan, a former scene of crimes of officer, in relation to “facial identification”.  He too had reviewed the CCTV images and had met and photographed the appellant.  He concluded that it was “unlikely” that the man shown in the images was the appellant, although he was not prepared to conclude that it was not him.  Mr Duncan was asked to view the incriminee in court.  He said that the incriminee resembled the man by impression, but he could not say that it was him without carrying out a detailed analysis.  

[7]        In due course the appellant gave evidence to the effect that he had not been involved in the incident.  He accepted that he had been on the High Street on the relevant afternoon, although not at the particular time.  He had been wearing what he described as his Buddy Holly glasses.  He had also wetted his hair.  Although he had previously sold bacon to some of the shopkeepers in the vicinity, there had been a period of a number of years when he had not been in Johnstone.

Charge
[8]        The sheriff gave the standard direction on the jury being entitled to accept part of a witness’s evidence and to reject other parts.  The sheriff stressed that the quality of the identification evidence was a critical issue in the case.  She gave the jury the standard directions on identification evidence.  She pointed out that, in support of the incrimination, the appellant was relying upon the evidence of Ms McA, to the effect that the incriminee was more likely to have been the man that she had seen.  There was specific reference to the 85% figure.  There was mention of the testimony of Mr Duncan.  The sheriff stated that “obviously, the accused is saying he didn’t commit the crime so [the defence] are relying on that as well”. 

[9]        On the other hand, the sheriff stated that the Crown were challenging that evidence and pointing to that of PG, DC Riddell and, “to a degree” that of Ms McA:

“… because you will remember her evidence was that she didn’t think it was the accused, but she couldn’t say it wasn’t the accused, but she couldn’t say it was either, so … you can accept her when she says it looks like the accused and you can reject her when she says it wasn’t”. 

Reference was made also to the testimony of the incriminee that he had not been involved. 

[10]      The sheriff went on to direct the jury on corroboration.  In the course of this exercise she said that, if the jury rejected DC Riddell’s evidence, but accepted that of PG, then PG’s positive identification could be corroborated by Ms McA’s position that the person she saw “looked like” the appellant.  That, she said, would be enough as a matter of law.  She continued by stating that the jury would have to bear in mind the whole of Ms McA’s evidence and, in particular, that, although the person may have looked like the accused, she did not think it was him.  That was “an important qualification”.

Submissions
[11]      The argument was essentially that the sheriff had erred in directing the jury that they could accept that part of Ms McA’s evidence, where she had said that the man she had seen running away looked like the appellant, whilst, at the same time, rejecting that part where she had said that she did not think it was the appellant and was 85% certain that it was the incriminee.  The sheriff had erred in directing the jury that they could use Ms McA’s evidence as corroboration in this way.  Accordingly, a miscarriage of justice could be seen to have occurred, since one route to the jury’s verdict could have been to reject, as corroboration of PG’s testimony, DC Riddell’s evidence, but to accept Ms McA’s evidence in that regard.  Her evidence was not, when taken as a whole, capable of providing corroboration.  Accordingly, a miscarriage of justice had occurred as a result of what had been a material misdirection (cf Docherty v HM Advocate [2014] HCJAC 94).

[12]      Under reference to Maguire v HM Advocate 2003 SCCR 758 and Campbell v HM Advocate 2008 SCCR 847 (Lady Paton at para [23]), the advocate depute submitted that the jury had been entitled to reject parts of Ms McA’s evidence and not others.  The direction on corroboration had been correct.  The jury had had a logical and rational reason for rejecting the particular part of her evidence regarding the incriminee and accepting the other part regarding resemblance to the appellant.  There had been a powerful body of evidence, notably the clear identification made by PG, which entitled the jury to approach Ms McA’s evidence in this manner.

Decision
[13]      The sheriff’s directions on identification were detailed and accurate.  The standard directions on identification evidence were given.  The evidence of all the relevant witnesses was drawn to the jury’s attention.  The sheriff’s narration of Ms McA’s testimony is not said to have been wrong in any respect, notably that at one point she had accepted that the man she had seen “looked like” the appellant, however that statement may have been qualified.  The sheriff was entitled to give the jury the standard direction to the effect that they could accept part of a witness’s evidence and reject other parts.  There was in this case, as in many others, no requirement upon the jury to accept or to reject “as a whole” the testimony given by Ms McA.  They were entitled to reject her evidence that she did not think that the appellant was the man or that it was 85% certainly the incriminee.  At the same time they were entitled to accept as accurate that there was a resemblance between the appellant and the man she had seen.  That being so, the direction that the evidence was potentially corroborative of PG was the correct one.  The jury had an ample basis upon which they could have rejected the exculpatory parts of Ms McA’s testimony, notably the clear evidence of PG and DC Liddell.  She had also been shown not to be correct in relation to her description of the man wearing a hat and as someone who had gesticulated at her.  These aspects of her reliability were matters which the jury could take into account in selecting as true and accurate such parts of her testimony as they deemed appropriate.  The appeal against conviction must be refused.