Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 89

HCA/2015/003500/XC

Lord Justice Clerk

Lord Menzies

Lady Clark of Carlton

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL AGAINST CONVICTION

by

CHRISTOPHER MCMULTAN

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant:  McConnachie, QC; Adams Whyte, Kirkcaldy

Respondent:  Brown AD; Crown Agent

22 September 2016

[1]        The appellant was convicted after trial at the High Court of Justiciary at Edinburgh on 23 November 2015 of two charges of assault and robbery.  He was sentenced to 12 years’ imprisonment.  He appeals against conviction but no appeal is taken against sentence.

[2]        The two charges of which the appellant was convicted were, after suitable alterations, in the following terms:

“(1)      On 18 January 2015 at an address in Perthshire, you CHRISTOPHER ALEXANDER JOHN MCMULTAN and another accused, with faces masked and whilst holding knives did assault DG and JM, force your way into the dwelling house there, shout, swear and threaten DG and JM with violence, compel them to lie face down on the floor, bind their hands and feet with tape and detain them against their will and you did thus abduct said DG and JM and you did compel said DG to disclose to you the personal identification number associated with his bank card and did rob him of a wallet and contents;

(4)        On 19 January 2015 at a different address in Perthshire, you CHRISTOPHER ALEXANDER JOHN MCMULTAN, together with the same named co-accused, with faces masked and whilst holding knives, did assault SS, SG, MG and MS and you did seize SG by the body, present a knife at her, and did shout, swear and utter threats at said SS, SG, MG and MS, compel said SS and MG to lie face down on the floor, compel said SG and MS to kneel on the floor and you did bind the hands and feet of the said SS, SG, MG and MS with tape, present knives at them and detain them against their will and you did thus abduct said SS, SG, MG and MS and did rob them of a quantity of jewellery and a sum of cash.”

[3]        In the course of the trial, the appellant’s co-accused pled guilty to charges 1 and 4 as above.  The appellant maintained his plea of not guilty to each of these charges but was found guilty by a unanimous verdict of the jury.  It is argued on behalf of the appellant that there has been a miscarriage of justice which is said to have arisen because, at a preliminary hearing before the trial in respect of the appellant’s objection to the leading of evidence about an informal identity parade which took place on 6 June 2015, the judge sustained the appellant’s objection to this evidence and ruled that no evidence of what occurred on 6 June 2015 should be admitted at trial.  It was argued that, in light of this, the trial judge should not have allowed what is described in the appellant’s case and argument as a “dock identification” and that as a result of this being allowed, the appellant has been denied a fair trial.

[4]        On behalf of the appellant, Mr McConnachie QC told us that paragraph 59 of Lord Jones’s opinion, following the preliminary hearing, in which he decided that no evidence of what happened on 6 June 2015 should be admitted at trial, was interpreted by counsel who represented the appellant at trial as applying not only to the Crown but to the defence. 

[5]        We have difficulty in accepting such an interpretation.  It was clearly open to the defence to raise issues about the informal identity parade on 6 June 2015 if they considered that it was in the appellant’s interest to do so - see, for example Gall v HMA 1992 JC 115.  Moreover it would have been open to the defence to appeal against Lord Jones’s decision in this respect if they considered it was prejudicial to the appellant’s interests at trial.  No appeal was taken.  It would also have been open to the defence to seek leave of the trial judge to cross examine witnesses about this matter, notwithstanding Lord Jones’s earlier decision, had they felt constrained by the terms of that decision, Mr McConnachie told us that he was not aware of any attempt to do so. 

[6]        In light of these failures by the defence, we do not consider that it can be argued on behalf of the appellant that he has been denied a fair trial.  Moreover we agree with the point made by the Crown in their written case and argument at paragraph 6 that what happened here was not properly categorised as a “dock identification” as that term is usually understood.  Paragraph 6 of the Crown note and argument is in the following terms:

“It is submitted that what is characterised as ‘dock identification’ in the note of appeal represents a misconception of what actually took place.  Both witnesses identified the perpetrator as someone known to them.  They identified him by name and by the means through which they were familiar with him.  In pointing him out in the dock they merely confirmed that the accused was the person they were identifying.  As a matter of fact, whilst it was the intention of the Crown to ask the witnesses if they could see the man they called Christopher McMultan in court, that is not what actually transpired.  Both witnesses spontaneously and without being asked to do so during the trial, said that the person who robbed them was Christopher McMultan and proceeded to point him out without any prompting.  Accordingly this case does not sit easily with the concept of “dock identification” in the way it is traditionally understood.”

[7]        We agree with this.  What happened might properly be described as identification in court but it cannot be categorised as a “dock identification” in the normal sense in which that term is understood.  In any event, having regard to the amount and strength of the rest of the evidence which was adduced on behalf of the Crown with regard to identification of the appellant, all of which pointed strongly to the conclusion that it was the appellant who was the “second man”, as he was described at trial, in these two charges, which evidence is summarised in detail in the trial judge’s supplementary report to us, dated 8 June 2016 and which is set out at paragraphs 15 to 23 of the Crown’s written case and argument.  Even if there was any procedural defect or unfairness in the allowing of the identification of the appellant in court, which for the reasons given above we do not consider there to have been,   we are not persuaded there has been any miscarriage of justice in this case.  Accordingly this appeal must be refused.