Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 4

HCA/2016-000231/XC

& HCA/2016-000238/XC

 

Lord Bracadale

Lord Malcolm

Lord Turnbull

OPINION OF THE COURT

delivered by LORD BRACADALE

in

APPEALS AGAINST CONVICTION

by

(FIRST) STEPHEN SANGSTER SENIOR AND (SECOND) STEPHEN SANGSTER JUNIOR

Appellants

against

HER MAJESTY’S ADVOCATE

Respondent

First Appellant:  Connolly; Paterson Bell Solicitors, Edinburgh for Aamer Anwar & Co, Glasgow

Second Appellant:  MacIntosh; John Pryde & Co Edinburgh for Fraser & Co, Livingston

Respondent:  Goddard (sol adv), AD; Crown Agent

7 February 2017

Introduction
[1]        On 11 March 2016 at the High Court at Edinburgh the appellants, who are father and son, were convicted of a charge of attempted murder in the following terms:

“(003)  on 31 August 2014 at 27 Owen Stone Street, Bathgate, West Lothian you STEPHEN SANGSTER SNR and STEPHEN SANGSTER JNR did assault Fraser Winton … and did utter threats of violence, threaten to kill him, repeatedly strike him on the body with a spade, knives, an axe, a mallet, a bat or similar instruments, stab him on the buttocks with a knife or similar instrument and repeatedly strike him on the head and body with said spade, hammer, axe, mallet and bat or similar instruments, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and did attempt to murder him”.

 

As libelled, the indictment included a number of other charges and another two co-accused.  In the course of the trial the advocate depute accepted various pleas from the co-accused, withdrew certain charges, and accepted pleas of not guilty from the appellants to all charges except charge 3. 

[2]        On 26 April 2016 in respect of each of the appellants the trial judge imposed extended sentences of 13 years comprising a custodial term of 10 years and an extension period of 3 years.  No appeal is taken against sentence.

 

Circumstances
[3]        The circumstances which emerged in the evidence were as follows.  At the time of the commission of the offence Stephen Sangster Snr was aged 51 years and Stephen Sangster Jnr was aged 22 years.  The offence was committed at the home of Leigh Sykes, a friend of the complainer. The complainer and his girlfriend, Laura Williamson, were sleeping there when three or four men burst into the flat and engaged in a concerted assault on the complainer.   The trial judge described it as a vicious and unprovoked attack which involved the use of a spade, a sledge hammer and a Stanley knife.  The complainer sustained very serious injuries.

[4]        The trial judge reports that there was some evidence indicating a background involvement in illicit drugs which the complainer had stored for the appellants and in respect of which he may have given some information to the police.  There was also evidence, which the trial judge described as “far from conclusive”, about an incident on the previous night at the home of the appellants when a row broke out and a female connected with the Sangster family was abused and pushed, an incident which led to a brief fight at the time and may have led on to the attack the next day.  The Crown, correctly in the view of the trial judge, did not seek to use this evidence to bolster the case on identification.

[5]        The evidence that the crime was committed came from the complainer and Laura Williamson, together with the medical evidence and the evidence of police officers who attended at the scene.  Laura Williamson's evidence as to the commission of the offence was given by adopting parts of a statement given to the police by her some hours after the attack. There was no challenge as to the sufficiency of the evidence that the crime was committed.

 

The Grounds of Appeal
[6]        The first issue raised in this appeal is whether there was sufficient evidence to prove that each of the appellants was a participant in the assault. The contention in a ground of appeal advanced by each of the appellants is that the trial judge wrongly repelled a submission of no case to answer.

[7]        Stephen Sangster Jnr has a second ground of appeal contending that, if there was a technical sufficiency, no reasonable jury, properly directed, could have convicted the appellant relying, as it had to, on the identification evidence of Laura Williamson. Her evidence was of such a standard that no reasonable jury could have considered it sufficiently reliable to convict the appellant.

 

Sufficiency of Evidence
[8]        The primary source of evidence implicating each of the appellants was the evidence of the complainer. He knew each of the appellants and positively identified both. The question is whether corroboration of the identification of each of the appellants by the complainer could be found in the other evidence including the evidence of Laura Williamson. The trial judge describes her as a prevaricating witness, a description amply borne out in the transcript of her evidence which was available to us.  In court she identified Stephen Sangster Jnr whom she knew through the complainer. In her statement she had named him as one of the assailants and described what he had done with a weapon. In evidence she explained that Stephen Sangster Jnr had not been present in the flat and had not been involved in the assault; she had named him as a participant because she had been told to by the complainer. She did not adopt those parts of her statement identifying Stephen Sangster Jnr as a participant. In relation to Stephen Sangster Snr she did not identify him in court. In her statement she said "one of the guys was either Stephen's dad or Clair Dolland’s dad as they said something like ‘hitting my daughter’ or ‘hitting my stepdaughter’, that’s what made me think that". It is, however, doubtful whether she adopted this particular passage of her statement. 

[9]        On 2 December 2014 Laura Williamson attended the VIPER identification parade of Stephen Sangster Jnr.  In her evidence she was taken through questions put to her and answers given by her at the parade.  She was asked the following question: 

“The person(s) referred to in your statement to the police, who on (date) 31/08/2014 in (locus) 27 Owen Stone Street, Bathgate, West Lothian (describe incident) Assaulted Fraser Winton and attempted to murder him by kicking, punching and striking him with objects may or may not appear on the images shown.  Do you understand?

 

Laura Williamson is recorded on the form as having said “OK” in response.  She was then asked:

 

“If the person(s) you saw on (date) 31/08/2014 and you later referred to in your statement to the police appeared in the images shown please tell me his/her/their number(s)/picture(s)/symbol(s).”

 

She identified Stephen Sangster Jnr whose image was number 5.  In her evidence she agreed that she had made the identification but went on to claim that Stephen Sangster Jnr had not been present or involved in the assault.

[10]      On 10 December 2014 Laura Williamson attended the VIPER identification parade of Stephen Sangster Snr.  She is recorded, in response to the same questions, as identifying number 4, which was the image of Stephen Sangster Snr.  She is recorded in the report of the parade as adding, “… but I might not be sure.  I think it’s him”.  Again, in her evidence she agreed that she had made the identification but went on to claim that Stephen Sangster Snr had not been present or involved in the assault.

[11]      Following the approach in Muldoon v Herron 1970 JC 30 the trial judge repelled the submission of no case to answer in each case. He concluded that at the VIPER identification parades Laura Williamson had identified both Stephen Sangster Snr and Stephen Sangster Jnr as having been involved in the attack upon the complainer on 31 August 2014.  That evidence, if accepted, was sufficient to corroborate the identification evidence given by the complainer, Fraser Winton.

 

Submissions

Stephen Sangster Jnr

[12]      Mr Mackintosh, who appeared on behalf of Stephen Sangster Jnr submitted that at no point had Laura Williamson adopted any part of her police statements in relation to the identification of the perpetrators.  The trial judge had erred in holding that the VIPER parade stood alone as a piece of evidence which the jury could accept or reject independently of the witness.  The statement which Laura Williamson gave to police identifying the appellant at the identification parade fell to be considered in the same way as her other previous statements in which she had acknowledged that she had identified the appellant but stated that she had lied when doing so (Jamieson v HM Advocate (No 2) 1994 JC 251 at page 258 D-G).  Whilst evidence as to whom a witness picked out at an identification parade might be admissible evidence it was not evidence of the truth of the matter, and could not be so unless the witness accepted it as being so in evidence. 

[13]      The present case could be distinguished from Muldoon.  In Muldoon neither witness had said that he or she had lied to the police. Mr Macdonald said that he had told the truth to the police and Mrs Miller's position was that the police had misinterpreted what she had said to them. The position of Laura Williamson was that she had lied to the police. In addition, the identifications in Muldoon had been made at the scene of the crime very soon after its commission. In contrast, the identification parades in the present case had been held months later. What was said at the identification parades was not given on oath.  The questions asked at the parade were directed to what Laura Williamson had said in her earlier statement to the police. The questions were inextricably linked to the earlier statement.

[14]      In support of the second ground of appeal it was submitted that no reasonable jury, properly directed, could have returned a verdict of guilty because, in order to return such a verdict, they would have required to have found corroboration in the evidence of the witness Laura Williamson.  While it was accepted that the test under section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) was a high one, it had been met in the present case.  The evidence of the witness Laura Williamson was entirely unsatisfactory.  By her own testimony she was incredible and unreliable.  Nothing in the way in which she gave her evidence would have led the jury to the view that she was doing her best to tell the truth.  The view of the trial judge was that the witness had failed to comply with her oath.  No reasonable jury, having heard the evidence of the witness, could have considered her capable of being credible or reliable either in her evidence or at any earlier stage in the investigations. 

 

Stephen Sangster Snr
[15]      Ms Connolly, who appeared on behalf of Stephen Sangster Snr, adopted the submissions of Mr Mackintosh in relation to the first ground of appeal.  There was an insufficiency of corroborated evidence to identify the appellant as one of the assailants.  Laura Williamson had not adopted the relevant parts of her police statement relating to the identification of the appellant as an assailant. The questions asked at the VIPER identification parade related to the earlier statement.  As the witness had not, in the course of her evidence at trial, adopted any part of her statement which related to her identification of the appellant, any reference to the identification parade based on her purported identification from her statement should not have been led before the jury.

[16]      If the evidence was competently placed before the jury, an issue arose as to the evidential import of the identification parade.  The witness had not been asked by the advocate depute, in terms, whether she accepted that she had identified the appellant as the assailant.  The questioning had been directed at presence.  The appellant’s mere presence at the locus was insufficient to provide corroboration of the complainer’s evidence.  No attempt had been made to elicit from Laura Williamson a dock identification of the appellant as one of the assailants.  She had not pointed out the appellant as an assailant to the police at or around the time of the offence. 

 

Crown

[17]      The starting point was the evidence of the complainer who had known the appellants for years and had made an emphatic positive identification of both. In these circumstances not much was required by way of corroboration (Ralston v HM Advocate 1987 SCCR 467 at 472). The evidence of the identification parades was sufficient to corroborate the evidence of the complainer. It was clear that the questions asked at the parades were directed at the identification of the assailants. The trial judge had been correct in characterising the arguments in relation to the terms of the questions asked at the identification parade as being "over literal". While the position of Laura Williamson was in some respects different from the position of the witnesses in Muldoon, the principle in Muldoon did apply.

[18]      In respect of Stephen Sangster Jnr the advocate depute advanced a secondary argument that there was sufficient identification in parts of the statement of Laura Williamson which could be said to have been adopted by her to identify the appellant as one of the assailants without reference to the identification parade.

[19]      With regard to the ground of appeal for Stephen Sangster Jnr under section 106(3)(b) of the 1995 Act, the advocate depute submitted that the identification evidence, depending only in part upon the evidence of Laura Williamson, could not be categorised as so grossly riddled with deficiencies, contradictions and inconsistencies that no reasonable jury, properly directed, could have accepted it as credible and reliable. 

 

Discussion and Decision  
[20]      It was common ground that where one starts with an emphatic positive identification by one witness very little else is required to corroborate the identification of the accused person as the perpetrator (Ralston v HM Advocate 1987 SCCR 467, LJG (Emslie) giving the opinion of the court at p 472).  It was accepted that the identification by the complainer could properly be described as an emphatic positive identification.  Laura Williamson in her evidence accepted that she had picked the appellants out at the parades but denied that they were involved in the attack.  The question is whether the principle enunciated in Muldoon v Herron 1970 JC 30 can be applied in the circumstances of this case so as to make available as corroboration of the identification by the complainer the evidence of identification by Laura Williamson at the identification parades. 

[21]      In Muldoon the three appellants were convicted of forming part of a disorderly crowd. The commission of the offence by a number of youths was clearly established. The question was whether there was sufficient evidence to entitle the Sheriff-substitute to hold that the appellants were three of those youths.  Two eye-witnesses of the incident, Mr MacDonald and Mrs Miller, gave evidence. Both of them, very soon after the incident, had identified to the police seven youths as having participated in the disturbance.  According to the evidence of two police officers the youths thus identified included the three appellants.  At the trial Mr MacDonald and Mrs Miller did not identify any of the appellants. Mr MacDonald said that he “could not” identify anyone in court, although he admitted that he had identified seven participants in the disturbance to the police on their arrival. Mrs Miller’s position was that although she admitted that she had identified seven participants to the police when they arrived, the appellants had not taken part in the disorderly crowd and were not among the seven identified by her.  Mrs Miller gave every sign of being afraid to implicate anybody.

[22]      It was held by a Full Bench (Lord Wheatley dissenting) that, since the witnesses had deponed that they had pointed out several of those implicated and the Sheriff-substitute had accepted the police evidence that the accused were among those pointed out, disbelieving the contrary evidence of Mrs Miller on this matter, the evidence of identification was from two sources and therefore sufficient. 

[23]      Lord Cameron at page 46 stated:

"The real question is whether a witness may give evidence of identifying the accused when giving a statement to the police, and further the police can be asked what the nature of that identification was and to whom it related."

 

After explaining that the matter was not covered by rules of evidence governing something said or done as part of the res gestae or something said de recenti, he went on to say that the evidence of the police officers could not be rejected on the simple ground that its admission would offend against the rule prohibiting the admission of hearsay:

"Such identification is truly an act of the mind and so it is a fact, but one the existence of which can only be communicated to another by recognised means of human communication, and the communication itself is also a fact."

 

[24]      Lord Cameron went on to state that the law of Scotland had long recognised that for various reasons the memory of a witness may become dimmed or the appearance of a person may change between commission of an offence and the trial of an accused. The law had made provision which was sanctioned by “long and standing” practice, that the witness may give evidence of an identification made to a responsible magistrate or officer of police in the course of the immediate investigation of crime, even when, for reasons of defective memory or other circumstance the witness is unable to make a visual recognition identification in court.  Lord Cameron summed it up in this way at page 48:

“If it is settled practice in our law that it is and has long been competent to take from a witness evidence of identification of an accused person made by him at an earlier stage of the investigation than his or her appearance in the witness-box, then in my opinion it cannot make such evidence incompetent that the witness is unable to make a visual identification in court due to loss of memory or from other cause. I cannot see that it makes any difference in principle to the admissibility of the evidence that the witness denies (and a denial can be due to honest mistake) that the accused in the dock is a person identified as concerned in the crime.”

 

In our opinion identification at an identification parade would fall precisely within the settled practice identified by Lord Cameron. Identification parades have for many years been part of the process of investigation by the police and evidence of their conduct is regularly led in criminal trials. While not conducted on oath, they are carried out according to strict rules and on a formal basis.  They are conducted by a police officer who has no direct involvement in the investigation itself.  A complete record of the parade is compiled and retained. 

[25]      As explained by Lord Cameron in the passage in Muldoon quoted above, the communication of the identification to the officer conducting the parade is a fact of which that officer may give evidence.  That is a separate fact from the making of the identification in the mind of the witness.  We are satisfied that the principles in Muldoon applied to the evidence of the identification parades in this case.  Laura Williamson’s evidence was that she had picked out both appellants at the respective identification parades.  The police officer who conducted the parades gave evidence that she had done so in response to the set questions.  We are not persuaded that the denials of Laura Williamson that the appellants were involved in the attack mean that the evidence of the identification made at the parades loses its status as admissible evidence in the case which, if accepted, can be used by the jury to support the principal source of evidence incriminating the appellants.  Further support for this approach may be found in the opinion of Lord Milligan in Muldoon at page 51:

“It was submitted by counsel for the appellants that in the case of Mrs Miller the police evidence had no evidential value whatever. I cannot agree with that extreme view. It appears to me that the fact that a person, in full knowledge of what he is doing, identifies certain persons as having been involved in an offence which has very recently taken place cannot be completely ignored and that it has evidential value. It does not lose its evidential value merely because the “identifier” gives completely contrary evidence in the witness-box.”

 

[26]      In our opinion the fact that the parade is held some time after the commission of the offence is not a bar to the application of Muldoon.  There is no reason why the principle should be restricted in this way.  Alison in dealing with this type of identification evidence made reference to an identification made in precognition before the magistrate, Alison's Criminal Law, vol. ii, at page 628:

“On this account, the material point for the prosecutor to establish is, that the prisoner was recognised as the man by the witnesses, when examined in precognition soon after the injury; and their testimony on that head may be received and considered, even although they can say nothing as to the prisoner at the bar, provided the prosecutor prove that that was the man shown them before the magistrate.”

 

[27]      We reject the submission that the questions asked at the identification parades referred back only to the earlier statements of the witness.  When the sequence of questions asked at the identification parades is taken into account in context it is clear that the questions were designed not only to make reference to the statement but to make specific reference to the perpetrators of the assault. 

[28]      We are not persuaded that the passage in Jamieson on which Mr Mackintosh relied undermines the application of the principle in Muldoon to the circumstances of this case. We do not consider that the court in Jamieson intended to limit the application of Muldoon in the manner for which Mr Mackintosh contended. The court in Jamieson was limiting the scope for adoption of a statement by requiring that the witness confirms that the statement to the police was true.  The court in Jamieson was not concerned with a question of identification made at an earlier stage.

[29]      Nor do we consider that the danger of the slippery slope touched on by Mr Mackintosh in the course of submissions is real.  In Muldoon Lord Cameron dealt with that argument at page 48:

“I have also noted the warning which counsel for the appellants gave against embarking on a slippery slope at the end of which, it was said, proof of identity in a criminal trial would be susceptible of establishment solely by evidence of police officers reporting what a witness (or even an uncalled third party) had said to them on this matter-without the witness ever being asked a question on the point when in the witness-box or even being presented as a witness at all. I see no risk of embarkation on such a slope. In the first place, the admissibility of this evidence depends on there being a witness who is called on to testify on the matter of identification. Secondly, the general rule against the admission of secondary evidence, when the best evidence is available, would operate to prevent such a course being successfully pursued.”

 

Just as the slippery slope failed to materialise in the wake of Muldoon, we are confident that there will be no real risk of embarking on such a slope as a result of the application of the principle in Muldoon to the circumstances of the present case.

[30]      We are satisfied, therefore, that the evidence of Laura Williamson and the evidence of the police officer to whom she made the identifications at the identification parades provided a source of evidence pointing to the involvement of each of the appellants in the assault. It would be open to the jury to reject her evidence that each of the appellants was not involved in the attack.  The available evidence corroborated the clear and unequivocal evidence of the complainer identifying each of the appellants as being among his assailants.

[31]      In view of the conclusion that we have reached in relation to the evidence of the identifications by Laura Williamson at the identification parades it is not necessary to form a concluded view on the secondary submission advanced by the advocate depute that parts of Laura Williamson’s statements to the police could be interpreted as adoption of her statement referring to Stephen Sangster Jnr as an assailant without recourse to the evidence of the identification parade.  We would only comment that we would have had considerable difficulty in so interpreting the passages of the transcript of the evidence of Laura Williamson on which the advocate depute relied.

[32]      The second ground of appeal advanced by Stephen Sangster Jnr contended that the verdict was one which no reasonable jury, properly directed, could have returned.  The approach of the court to this type of appeal is well settled:  HM Advocate v Geddes 2015 JC 229 LJC (Carloway) at paragraph [4]:

“…It is an objective exercise in which, for an appellant to succeed, the court must be able to hold ‘that no reasonable jury could have returned a guilty verdict on the evidence before them’ (King v HM Advocate , Lord Justice-General (Rodger), delivering the opinion of the court, p 228). The court has to ‘assess the reasonableness of the verdict with the benefit of its collective knowledge and experience’ (AJE v HM Advocate , Lord Justice-Clerk (Gill), para 30, followed in Gage v HM Advocate , Lord Justice-General (Hamilton), delivering the opinion of the Full Bench, para 29). It is only in the ‘most exceptional of circumstances that an appeal on this ground will succeed’ (Harris v HM Advocate , Lord Bonomy, delivering the opinion of the court, para 67).

[5] One reason for the test being set at so high a level is that there will often be, as there was in the present case, an acceptance that there was a legal sufficiency of evidence against the accused. The argument will accordingly often boil down to one which seeks to persuade the court that the jury could not reasonably have accepted the testimony of a particular witness or witnesses, or part of it, as credible and reliable. Since that is traditionally primarily the province of the jury to assess ( ibid ), it will only be in rare cases that the court will be persuaded that no reasonable jury, properly directed, could have accepted the testimony in question….”

 

Where this type of ground of appeal is founded in an attack on the credibility and reliability of a particular witness guidance may be found in McDonald v HM Advocate 2010 SCCR 619 where the criticism was directed at the credibility and reliability of a witness P: Lord Carloway at paragraph [27]:

“The question for the court is whether, looking at the totality of the evidence, it is satisfied that a miscarriage of justice has occurred because no reasonable jury could have held the case proved beyond reasonable doubt. In answering that question, the evidence of P should not be looked at in isolation but should be taken along with, and in the context of, the other testimony at the trial (see generally E v HM Advocate, LJC (Gill) at paras 28, 30 and 37; King v HM Advocate, LJG Rodger at pp 334–335).”

 

When looked at in isolation the evidence of Laura Williamson was in many respects unsatisfactory.  But it must be examined in the light of the other evidence in the case, including the evidence of the complainer and the police officer who conducted the identification parades. When that exercise is carried out we are satisfied that it was open to the jury to rely on the evidence of Laura Williamson and the police officer speaking to her identification at the parades to corroborate the identification of the appellants by the complainer. It cannot be said that no reasonable jury could have returned a verdict of guilty relying on that evidence.

[33]      In the result the appeals fall to be refused.