Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 70

HCA/2015/3561/XC

Lord Justice General

Lady Paton

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTE OF APPEAL AGAINST CONVICTION

by

JAMES WILSON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: A Ogg, Solicitor Advocate; Martin Johnston & Socha, Dunfermline

Respondent: A Prentice QC (sol adv) AD; the Crown Agent

23 August 2016

Introduction
[1]        On 17 November 2015, at the High Court in Edinburgh, the appellant was convicted of two charges of extortion and attempted extortion.  The first libelled that, between January and March 2013, the appellant, along with a co-accused JC, sent an anonymous letter to WT threatening to kill members of his family unless he paid £60,000.  Thereafter they made anonymous phone calls to him pretending that the letter had been sent by dangerous criminals from England.  They told him where and when to deposit the money.  The appellant offered to courier the money and was duly given it.  The second charge was in not dissimilar terms and libelled that, between April and May 2014, they sent further letters to WT threatening him and his family with violence unless he paid £375,000.  In a later call he was asked to give the letters to the appellant so that they could be examined for DNA.  A further letter instructed WT where to deposit the money.

[2]        The co-accused had admitted involvement in both offences at interview, having been advised that his DNA had been found on some of the letters.  He said that it had been the appellant’s idea.  He had written the letters.  He had divided the £60,000 with the appellant.  The co-accused pled guilty at the close of the Crown case.  Both accused were sentenced to 5 years imprisonment. 

[3]        The appeal concerns the sufficiency of evidence on the first charge.  At the trial, this question was analysed in terms, inter alia, of the ratio in Howden v HM Advocate 1994 SCCR 19.

The Complainer’s Testimony
[4]        The complainer had known the appellant for 15 to 20 years.  The appellant had worked for him periodically.  The complainer considered him to be a friend.  In January 2013, a matter of weeks after the complainer had moved house, a letter arrived.   Only the complainer’s family and workers, including the appellant, would have been aware of his new address.  The letter, which was in the traditional cut and paste format of the blackmailer, made threats to the complainer in the terms libelled.  The complainer contacted the appellant, in whom he was in the habit of confiding.  The appellant claimed to know a solicitor or “barrister” in Glasgow called “Davie” who might be able to find out who had sent the letter.  The complainer received a phone call from Davie who told him to put the letter in a plastic bag and give it to the appellant to pass onto him for DNA analysis.  Davie called him later to say that the senders had been identified as being Liverpool villains.  He advised the appellant to pay the money.  This was to be done by giving the appellant £60,000 for onwards transmission through Davie.  He did this, having withdrawn £21,000 from his bank account and obtained the rest by borrowing from relatives.  He received a further call from Davie saying that it was “all finished”.

[5]        On Tuesday, 22 April 2014 a second letter arrived, this time demanding £375,000.  This letter was in stencilled format, in the terms of the libel, involving threats to the complainer’s family.  The complainer phoned the appellant, who arranged for Davie to call.  The same DNA plan was suggested.  The complainer asked the appellant to pick up the letter from him at Pizza Hut on the following day.  The appellant did this, using a blue car. When the complainer arrived home, there was a hand delivered letter stating that the authors had been watching him and asking if he had enjoyed his meal with his girlfriend on the previous Friday night.  The complainer had had such a meal.  The complainer phoned the appellant.  Davie then phoned the complainer to say that he would send two men to watch the house.  Davie later said that a Liverpool mob had been identified from the DNA analysis.  The next morning another letter arrived saying “How was your pizza? ...Your pig friend in the blue car won’t save you…”.  The complainer confided in his son MT and the police were involved.  On the following day (Saturday, 26 April) the complainer told the appellant and Davie that he had been to the police.  On Sunday, 27 April, Davie texted him to say “Me and my boys are coming through to take [M] out for grassing up [the appellant]”.  Only the appellant knew that MT had accompanied him to the police station.  Further demanding letters arrived and were handed to the police.

Other Evidence
[6]        The complainer’s son MT said that he had become aware of the first letter in 2013.  He had seen the letter at the time and noted that it was threatening and demanding £60,000.  It was agreed by joint minute that the complainer withdrew £21,000 from his bank at the time.  MT had fallen out with his father because he had not gone to the police.  He was not aware that any money had been paid.  When the 2014 letters had arrived, he had again told the complainer to go to the police, which he did.

[7]        The police recovered a number of the letters relative to the second charge, as they arrived at the complainer’s home.  These were produced at the trial.

[8]        There was evidence of telephone calls from Saturday, 26 April (when the complainer had contacted the police).  This involved an exchange of some five calls between the appellant and the co-accused from 8.38 to 10.16am.  There were then three calls from the appellant to the complainer from 2.56 to 4.34pm.  At 5.25 the co-accused called the complainer.  At 6.39 the appellant phoned the co-accused and, apparently during this call, there is a second short call from the appellant to the complainer followed at 6.48 by a 10 second call from the appellant to the co-accused.  Between 8.21 and 8.25pm there were three communications between the appellant and the co-accused.  At 8.31 the appellant called the complainer and, immediately, afterwards phoned the co-accused.  Immediately after that, the complainer called the appellant.  Finally, at 8.40pm the appellant called the co-accused.

[9]        Forensic evidence demonstrated that the co-accused’s DNA was on the stamps of two of the envelopes used to send the letters in charge 2.  The handwriting in four of the letters in April 2014 was “probably” that of the co-accused.

[10]      At interview, the appellant admitted that he knew both the complainer and the co-accused.

Trial
[11]      At the trial, there was a submission that there was insufficient evidence of identification on either charge.  There was some debate about the Crown having to rely on the concept of art and part guilt, which had not been expressly libelled, coupled with the application of Howden v HM Advocate (supra).  The Crown accepted that charge 1 relied upon such an analysis.  The judge spent some time resolving the issues as they had been presented to her.  Having accepted that there was no need to libel art and part, the judge examined Howden and its successors.  She noted that, ultimately, it had not been contended that there was insufficient evidence on charge 2.  She rejected the submission that it was necessary to have “direct” evidence of identification before Howden could be applied and that the time interval between the two charges was too long.

Submissions
[12]      The appellant accepted that there had been sufficient evidence on charge 2.  He contended that there was insufficient evidence to allow the application of Howden because of insufficient similarities between the two charges.  The question was whether these similarities pointed to the appellant as the perpetrator of both crimes (Gillan v HM Advocate 2002 SLT 551 at para 24; Martin v HM Advocate 2016 SCCR 276).  As distinct from Howden, Gillan and Townsley v Lees 1996 SLT 1182, the complainer in both charges was the same.  There was no direct identification of the appellant as the perpetrator in charge 1.  The “art and part” identification in charge 2 could only apply to charge 1 if the evidence showed that the latter charge involved more than one person.  The time gap between the offences was too long.  The similarities in the method were not so special as to justify the inference that the same person had perpetrated both crimes.

[13]      The original Crown submission was that there was no rule preventing the application of Howden where the charges involved the same complainer.  There had to be corroborated evidence proving identification on one charge.  If that were established, there was no need for a separate identification on the second charge, if it was proved that both offences were committed by the same person.  There was no requirement for a “direct” identification (Murphy v HM Advocate 2007 SCCR 532 at paras [48] and [90]; Lindsay v HM Advocate 1993 SCCR 868 at 873; and Gillespie v Macmillan 1957 JC 31 at 39).  It was accepted that there was sufficient evidence of charge 2.  The only question was whether there was evidence to prove that charge 1 was committed by the same person or persons.  It was not helpful to focus on the time gap in isolation.  The gap was just one of a number of factors to be considered in establishing a nexus. 

Decision
[14]      The modern expression of sufficiency of evidence, and the manner in which the requirement for corroboration operates, is that the crucial facts (that is the commission of the crime and the identity of the perpetrator) must be proved by evidence from at least two separate sources.  This normally involves direct testimony from at least two witnesses about these facts, indirect testimony from two or more witnesses about facts from which the crucial facts can be inferred or a combination of direct and indirect evidence from at least two sources.  The principle of mutual corroboration is not an exception to this, but an example of it where, if there are charges involving a course of criminal conduct, as explained in MR v HM Advocate 2013 JC 212 at para [20], the testimony of one witness concerning one charge may corroborate, and be corroborated by, the testimony of another witness speaking to another charge linked with it in time, character and circumstance.  In the classic case, each witness will speak to the commission of the particular crime and the identification of the accused as the perpetrator (eg Moorov v HM Advocate 1930 JC 68).

[15]      It follows, from the expression of the principle, that mutual corroboration cannot operate if the only testimony about the commission of the crimes and their perpetrator comes from the same person (eg the complainer).  No matter how similar the facts may be, the sources relied upon to corroborate each other would be the same.  However, equally, there is no need for the complainers on two or more charges to be different, provided that there are two sources of evidence to prove the crucial facts. 

[16]      In many cases, and this is one, there will be evidence from sources other than the complainer, to prove the commission of the crime.  Here, on charge 1, the complainer’s son saw the threatening letter, which instructed the libel, and the complainer’s withdrawal of £21,000 at the material time was agreed.  It is not disputed that there was sufficient proof of the commission of the crime on charge 2.  Leaving aside the testimony of the complainer, there was at least one source of evidence, such as the production of the letters spoken to by other witnesses, to demonstrate the commission of the crime on charge 2.  The principal issue, however, is whether there is corroboration of the complainer’s identification of the appellant as a participant in the crime alleged in charge 1.

[17]      On charge 2 there was at least one source of evidence, other than the complainer, pointing to the appellant (incidentally as actor, not just art and part), including the telephone evidence linking him to “Davie” and thus the co-accused, whose involvement was demonstrated by his DNA on the stamps.  In such circumstances, there was no particular need to rely on Howden v HM Advocate 1994 SCCR 19.  There would be a sufficiency using the evidence (other than the testimony of the complainer) of the identity of the perpetrator on charge 2 in combination with that of the complainer on charge 1 provided that the jury was satisfied that the crime in charge 1 must have been carried out by those who committed that set out in charge 2.

[18]      There is no doubt that the two crimes were very closely linked.  They involved the same complainer and an almost identical modus operandi with participation by a least two persons.  That modus concerned the activities of the fictitious “Davie” and his equally fictitious ability to recover DNA from the letters and identify criminals from Liverpool as protagonists.  In these circumstances, it is not surprising that, having decided to convict the appellant on charge 2, the jury did the same on charge 1.

[19]      Howden v HM Advocate 1994 SCCR 19 operates where, with one charge, although there is sufficient proof that an offence took place, there is no source of evidence pointing to the accused as the perpetrator.  That deficiency can be overcome by proof, by corroborated evidence, that the accused perpetrated the other charge or charges, coupled with evidence that the charges, including that on which there is an insufficiency, all involved the same perpetrator (Gillan v HM Advocate 2002 SLT 551, LJC (Gill) at para [24]).   If the evidence shows that two crimes were committed by the same person, proof that the accused perpetrated one will suffice to prove that he perpetrated the other (ibid para [19]). 

[20]      In this case, the ratio of Howden (supra) has little or no relevance.  Its application could not have proved that the crime on charge 1 had been committed.  That was, however, proved aliunde.  The true issue was whether the complainer’s evidence identifying the appellant as the link with Davie was corroborated by evidence, other than that of the complainer.  There was no other evidence specific to identification on charge 1, but, given the obvious improbability of a different person being involved in charge 1, that gap was filled by the circumstantial identification evidence on charge 2.  While emphasis was placed on the time gap between the two offences, given the overall circumstances, the court is not persuaded that this disentitled the jury from reaching the verdicts which they did, nor that it resulted in an insufficiency of evidence on charge 1.

[21]      The appeal is refused.