APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Hardie Lord Osborne	[2012] HCJAC 6 Appeal No: XC142/11 OPINION OF THE COURT delivered by LORD HARDIE in APPEAL AGAINST CONVICTION by ROSS JUNIOR MILLAR Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: M C MacKenzie; Capital Defence, Solicitors, Edinburgh

Respondent: Clancy, QC, AD; Crown Agent

12 January 2012

Introduction

[1] On 28 January 2011 At Glasgow High Court the appellant was convicted unanimously of the following charge:

"On 1 January 2010 at 115 Glenavon Road, Glasgow you ROSS JUNIOR MILLAR did assault Scott McNeill, c/o Strathclyde Police, Maryhill, Glasgow and did strike him on the body with a knife or similar instrument to his severe injury, permanent disfigurement, and to the danger of his life and you did attempt to murder him".

On 18 February 2011 the trial judge sentenced the appellant to an extended sentence of eleven years comprising a custodial term of nine years and an extension period of two years and back-dated the sentence to 28 January 2011.

Basis of the appeal

[2] The appellant has appealed against his conviction but does not challenge the sentence selected by the trial judge. The basis of the appeal is that it is alleged that there has been a miscarriage of justice because the trial judge erred in failing to uphold a submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 that the appellant had no case to answer in respect that the Crown had failed to prove by corroborated evidence the identity of the appellant as the assailant. The Note of Appeal acknowledges that David McManus (Crown Witness No 6) positively identified the appellant as the perpetrator of the offence. However, it alleges that there was no corroborated evidence of that identification because Scott McNeill (Crown Witness No 2) did not identify the appellant at a Viper parade and at the trial of the appellant was not requested to identify and did not identify the appellant as the perpetrator of the offence. He identified the perpetrator by name but not by identity.

[3] The issue in the appeal was accordingly a narrow one and was restricted to the question whether there was sufficient evidence to corroborate the evidence given by McManus identifying the appellant as the perpetrator of the offence. It is thus necessary to consider what evidence was available to the jury at the conclusion of the Crown case. The trial judge in his report has provided a useful summary of that evidence. In the case and argument submitted in advance of the appeal hearing, counsel for the appellant confirmed that she did not take any issue with the summary of the evidence provided by the trial judge and she did not depart from that at the appeal hearing.

Evidence

[4] The trial judge's narrative, apart from the medical and scientific evidence which did not assist in the identification of the assailant, was in the following terms:

"David McManus said that on 31 December 2009 (Hogmanay) he was drinking heavily with a couple of friends including the appellant and his father, known as Ross Senior Millar. He said that his father was a "big guy" with nothing unusual about him. The witness's nickname was "Div". He claimed that he had had a drink and drug problem since he was younger and was drinking probably Buckfast or beer. At some point they left a pub and went to the appellant's house at the Glenavon High Flats in Maryhill. They must have stopped at an off sales and obtained more drink. Then he and the appellant went to a flat belonging to someone called Michelle (Crown Witness Michelle Golding) for more drink. He thought that the appellant's father came up for a time but was not sure. Michelle and another woman and a man and possibly her parents and perhaps children were in the flat. He did not think that Michelle knew the appellant. The atmosphere was alright and everyone was drinking. He left the house at some point but before that someone called Scott had arrived. This would have been the complainer Scott McNeill. He knew Scott from Maryhill but did not know his surname. He did not know if Scott was Michelle's partner but something about the atmosphere caused the witness to feel uncomfortable and he left. The witness then went back down to the appellant's flat and sat on the landing outside. He was going to wait for his friends coming back down. He sat and drank the rest of his wine and eventually they did come down. He then claimed that he went into the flat and fell asleep on the couch. He was woken up when the police came to the door. He heard a bang and they came in. He was not too sure why they were there although it was something to do with an incident. He was taken to the police office and questioned. He did not know what it was about at first until the police said someone had been stabbed, namely Scott. He then said that before the police came to the door he was sleeping and woke up. He saw the appellant walking into the living room from the hall and he had a silver thing in his hand. The appellant said that he was fighting with the guy Scott but the witness said he could not remember exactly what words he used. He said that the silver thing could have been a pole or a knife. He was half sleeping and was not too sure. He also saw a couple of cuts on the appellant's hands. He did not know for a fact that the appellant had been fighting with Scott but he thought that they had had an argument earlier on, although he was not sure. He was asked about a statement he gave to the police and said that at first he did not want to say anything to them but ultimately told the truth. The police were saying to him that the appellant and he had done something. He was shown a photograph of a knife sticking in the appellant's hall carpet and he said that the police showed him that when they were taking him away. He was also shown a photograph of the kitchen worktop containing something silvery on top of it and he said again that the thing in the appellant's hand could have been a metal thing or a knife. He was shown label 22, which he said was part of a knife set which he had seen in the house. Label 29 was a silver case which contained a knife set. I need not go into full details about the statement which was put to him but I will refer to part of it. It was suggested that he said to the police that after he had gone down and sat outside the appellant's door the appellant and his father came back after about 15 to 20 minutes. He agreed that they came back but said he could not remember the time. It was also suggested that he said the following:

'Ross said to me at that time "Ah've just knocked him out". Ah knew he meant Scott because Michelle's Ma's boyfriend had went tae his bed before I left. Ah said to him "What did you do that for, he's sound" and he never said anything and me, Ross and his Dad went into their house. They couldnae find the key to lock their door. I got a quilt and went and lay down on the couch and crashed out. The next I know I heard a loud bang and that was what woke us up. Ah did (sic) know what it was. Ah got up. Ah made ma way from the living room into the hall towards the front door. As ah was going to the front door, ah saw Ross (jnr) coming back into the house from the landin'. He had a knife in his hand, ah don't remember what hand it was in. It was a silver knife'

He said that he did not remember seeing a knife and that the police were putting him under a lot of pressure but he must have said it.

The statement went on:

'Ross said "Ah think ah've just murdered him" '. Ultimately the witness accepted that he thought that those were the words which the appellant used.

The statement went on:

'Ah thought he meant Scott, but he didn't say his name. That was because of him saying he had knocked him out earlier'.

Eventually he accepted that what he had said in the statement was true.

He was cross-examined, in particular about whether he was in fact sleeping when the police came in, which would have meant he could not have seen the appellant coming into the hall. It was also suggested that by blaming the appellant, he was able to get himself off the hook for any involvement he might have had but the witness denied this.

There was then evidence from Scott McNeill, the complainer. He said that he was the ex-boyfriend of Michelle Golding and she called him about 03.30 hours on 1 January 2010. He had been released from hospital the day before and had a "stookie" on, consisting of a sling made up of half plaster and half bandage. He said that Michelle Golding said there were people in the house and her mother did not want them there. He went into her flat and there were a number of people in the living room having a drink, namely a person he named as Ross Millar, this person's father, a boy whom he already knew, called David or Div, and Michelle's mother, as well as Michelle herself. At no stage did he identify the appellant as being the Ross Millar to whom he referred. This was the first time he had come across this individual. There was nothing really wrong and Ross Miller, his father and David all left together. He said that the father had a tattoo on his face and he would know him if he saw him again. At that point the appellant's father (Crown witness no 36) was brought into court and the witness professed to recognise him. Then Mr McNeill said that he left the flat in order to get his friend. Before that he went downstairs and went to Ross Millar's door. This was to tell him not to come back near the house. He chapped the letter box and no one answered. Then the door flew open and he saw a big shiny dagger. He turned round and felt as if he was punched in the throat and then went back up to Michelle's flat. It was the person called Ross Millar who had the dagger. The door opened, he saw the dagger and he saw this person's hand at shoulder level. It punched, as he put it, straight down into the left side of his neck and he still had a scar. The dagger punctured the opposite lung. He went upstairs but at that time he did not realise he had been stabbed. He was about halfway up when he first saw the blood. Photographs showed a trail of blood between the two flats. He went into the flat and Michelle Golding called a paramedic. He was in hospital for three days. He had a punctured right lung. He had been affected in a lot of different ways but was now getting over it. He had suffered severed nerves in the left arm and pins and needles in his thumb and fingers. His neck was a bit numb and was scarred permanently. The lung was reinflated after three days and was now alright. He did not go near the flats again because this matter was always at the back of his mind. It affected his socializing for a while but he was no longer getting treatment and was not now on painkillers. The pain had lasted for about eight months. He had had some difficulties for a while in washing and dressing but he was now getting back to normal. He thought that if he had not received medical treatment he would have been dead

In cross-examination he was asked about the atmosphere in the flat. He accepted that he had gone there with an expectation that there might be the potential for trouble. Michelle Golding asked the others to leave but he did not know exactly what she said. They all left together as far as he knew. He stayed for another half hour then decided to visit the flat, although they had not tried to come back up. He accepted that he might have been shouting at the appellant's letter box but he did not know. There were no words exchanged before he was attacked. He said that he had gone to the flat unarmed although the knife in the carpet in the appellant's flat looked like one from Michelle Golding's flat. He could not explain what it was doing there but he said that two went missing from her house. He denied taking it down himself. He could not remember kicking the door repeatedly and shouting. He denied a suggestion that he had a knife and it ended up on the floor in the appellant's flat. He also denied attacking the appellant at his door. It was put to him that when he had gone to the hospital he had told a Dr Victoria McWinnie that he had been walking home from a friend's house when someone came up behind and stabbed him in the neck. He did not remember that. It was also suggested that he told the doctor he knew he had been stabbed but did not see the weapon. He said he did not remember that either. It was suggested that he was not attacked as he had said and that his attacker was not someone in the flat below but he did not accept that.

On re-examination he confirmed that he had a "stookie" on and could not have done much against three people. There was no altercation at the appellant's door. As far as what he was said to have said to the doctor was concerned he indicated that it might have been because he was on painkillers and was all mixed up. It was not David who assaulted him and it was not the father. It was the other person.

Michelle Golding then gave evidence. She referred to a number of people coming drinking at her flat at 7/5 115 Glenavon Road, where she stayed with her two sons, having recently broken up with the complainer. Her mother was there and her mother's boyfriend Charlie. David, who was a friend from the flats, came up to the door and chapped it. He was with the appellant, whom she identified. She said that he lived downstairs. She was aware that he had a father and had spoken to them a few times. His father appeared and she let him in as well. She did not notice any change in the atmosphere. Scott McNeill arrived and she let him in. She asked people to leave because it was getting late. The men were getting on with everybody and she was not aware of any issues. Scott left and the next thing he was back at the door shouting that he had been stabbed in the neck. She saw the blood and went on the phone to the ambulance. He went into the kitchen and kept banging on the floor with his feet and saying "downstairs".

In cross-examination she reiterated that Scott McNeill just appeared. She asked people to leave because of the time and they all shook hands at the door, although she did not know if Scott McNeill shook hands as well.

Elizabeth Golding, Michelle Golding's mother gave evidence. She was in the house having drinks and the atmosphere was fine. She did not remember telling the police that after the bells a boy, whose name she did not know, and his father, who had been polite, both started to make cheeky comments. She accepted she probably would have said it if it was in her statement. The next thing of significance she remembered was seeing the complainer on the floor being assisted by Michelle.

Her statement was put to her, inter alia as follows:

"Then just before the bells another guy was walking in the livingroom. He was one of the boys Da's not the Divy one...the other one"

She said that that must be true. It went on:

"He just put out his hand and said 'pleased to meet you'. He seemed quite pleasant. But he didn't really talk to me much cos I was playing with the kids".

Again that was probably true she said. It continued:

"Then just after the bells, the boy whose name I don't know and the dad who had been so polite both started to get nippy".

She said that that would be true if she said it. It went on:

"By that I mean just making cheeky comments. The boy said something about his dad getting together with me. I said to him 'that's my man there Charlie, I've been with him for 10 years'".

She said that would be true. It went on:

"I just brushed it off to keep the peace. Then he got up and started dancing wi Divy. The boy was talking to either Charlie, Michelle or that stupid Divy about being a professional kickboxer and he was doing the movements with his hands. I got frightened about them cos I felt that something was going to kick off. So then Michelle saw the look in my face and obviously knew that I was frightened by them. Then Michelle's ex-partner Scott McNeill came to the door, it would have been about half an hour after the bells...So Michelle said to everyone that we'd had all had a good night and that the kids had to go to bed and it was time for people to go. ...When they did Scott said to Michelle 'You shouldn't let them in your house'. She said "But you know Divy" - he said "Aye, but you don't know the other two" or something like that, cos I knew what he meant".

She did not remember that but she said it would be true if she said it. Her statement then referred to seeing the complainer being tended to and went on:

"I didn't know what made me dae it but I ran to the front door. I locked it, the key was in the lock. Then I looked out the spy hole and I saw the father who had been in the house earlier. He was topless and he was walking towards the door, he was holding a weapon out in his right hand. It was made out of a light coloured wood, the colour of pine, connected with a piece of chain. It is those Japanese things that are used for Kung Fu".

She agreed that that would be true if she said it.

There was then evidence from Charles Marshall Buchanan, who was the Charlie previously referred. He referred to two people whom he did not know coming to the house. They sat talking and the atmosphere was fine. He did not really advance the case one way or the other.

Evidence was led from PC Eddie Leung. He was called to the incident and saw the complainer lying on the floor covered in blood. He also spoke to the blood trail between the flats.

PC Kevin Dougall also attended the scene. He noticed the trail of blood and went to flat 6/5, the appellant's flat. He was noted to have a cut above the left eyebrow and a cut to the nose. There was a knife stuck in the carpet to the left of the door. He and other officers went into the flat to find the appellant's father and another male, who turned out to be David McManus. The appellant's father had blood on his hands, forehead and clothes.

Sgt Edward Seery was along with PC Dougall and another officer. He saw the blood trail and saw the injuries to the appellant. His demeanour led him to believe that he had been drinking. There were two other males, the appellant's father and David McManus in the appellant's flat. He noticed the knife sticking into the carpet and a set of martial arts numchucks in the living room.

DC Alexander Cameron spoke, amongst other things, to the statement made by Elizabeth Golding.

DC Alistair Donaldson spoke of interviewing David McManus on tape. In cross-examination he gave certain evidence which contradicted what McManus had said about what he had been told by the police.

Det Sgt Thomas McKean spoke to the detention of the appellant. The officer then went to the scene and was present when a number of photographs and swabs were taken. He noticed the knife sticking into the carpet and the numchucks. Under an armchair in the living room were a carving knife and carving fork from a set. There were knives of similar design in the case which I have mentioned on the kitchen worktop. There appeared, though, to be a missing knife.

Det Sgt Kevin Jamieson spoke to the statement given by David McManus and to the taking of certain swabs."

Discussion

[5] The summary of evidence provided by the trial judge narrates that the complainer testified that it was the person called Ross Millar who had the dagger immediately before the complainer was punched in the throat, as a result of which he sustained the stab wound to his neck. However, it was accepted that the complainer did not identify the appellant at an identification parade or in court. The issue can be placed in context when regard is had to the Minute of Proceedings for 27 January 2011 recording the submissions by the solicitor advocate for the accused and the Advocate depute in terms of section 97 of the 1995 Act. The relevant entry in the Minute of Proceedings is in the following terms:

"The Solicitor Advocate for the accused submitted that there was no case to answer in respect of the charge on the indictment in respect that there was insufficient corroborated evidence identifying the accused as the assailant, he submitted that what the Crown have regarding identification was the evidence of David McManus speaking to seeing the accused with a knife and being present at the door and evidence of the accused returning into the flat and stating 'I think I have murdered that cunt', the complainer Scott McNeil (sic) spoke of Ross Junior Miller (sic) and Ross Miller (sic) Senior, he spoke of going to Ross Miller's (sic) flat and being stabbed in the neck with a knife by Ross Junior Miller (sic), the Solicitor Advocate submitted that Scott McNeill did not identify the accused in court or at an identification parade, he submitted that there was no identification of the accused as an assailant and no positive identification by the complainer. During the course of his submissions the Solicitor Advocate for the accused referred to the following authorities:

P v Williams 2005 SCCR 234;

The Advocate Depute replied and submitted that there was a sufficiency of evidence in respect of identification, she submitted that there was the evidence of David McManus who gave a clear identification of Ross Miller Junior(sic) and spoke of the accused being in the hallway with a knife, she submitted that Scott McNeill gave evidence that he was assaulted by the younger Ross Miller (sic) not the father and that he was not assaulted by David McManus who was known to him."

[6] From the trial judge's summary of the evidence and the above entry in the Minute of Proceedings, it appears that the complainer in his evidence referred to the appellant and his father by name, both of whom were called Ross Millar although the appellant was known as Ross Junior Millar. From the submissions made by the solicitor advocate on behalf of the appellant it appears that the complainer testified that he had been stabbed in the neck with a knife by Ross Junior Millar. That would coincide with the trial judge's summary of the evidence. Although that summary of the complainer's evidence refers to a person named Ross Millar, it is clear that this is a reference to the appellant for a number of reasons. First, when referring to the people in Michelle Golding's flat when he arrived, the complainer spoke of a person he named as Ross Millar, Ross Millar's father and McManus. Second, he identified the father, who had a facial tattoo, when he was brought into the court. Third, he went downstairs to Ross Millar's door. Michelle Golding testified that the appellant, whom she identified, lived downstairs. Fourth, when he saw the dagger, it was the person named by him as Ross Millar who had it. Finally in his evidence, as summarised by the trial judge, the complainer distinguished between Ross Millar and Ross Millar's father.

[7] From the summary of the evidence it is clear that there was sufficient evidence to entitle the jury to conclude that prior to the assault upon the complainer the appellant and David McManus arrived at Michelle Golding's flat; that the appellant's father arrived later and that even later the complainer arrived. The appellant was identified in court by Michelle Golding. The jury could also conclude that the appellant, his father and McManus returned to the appellant's flat and were the only occupants of that flat when the police arrived immediately after the attack upon the complainer. Moreover there was sufficient evidence for the jury to conclude that the attack upon the complainer occurred on the landing outside the appellant's door, the complainer's evidence to this effect being corroborated by the trail of blood from the appellant's flat to Michelle Golding's flat where the complainer went immediately after the attack. The blood was linked to the complainer by DNA analysis. Although David McManus was a reluctant witness, he ultimately adopted his police statement in which he said that he had seen the appellant coming back into the house with a knife in his hand and saying: "Ah think ah've just murdered him." He was of the view that the appellant was referring to the complainer as the appellant had earlier stated that he had knocked out the complainer. It was not disputed that the evidence of this witness was one source of evidence implicating the appellant as the assailant of the complainer, assuming that the jury accepted it. Although the complainer did not identify the appellant as his assailant either at an identification parade or in court, the complainer's testimony that he went to the appellant's door to tell the appellant not to return to Michelle Golding's flat and his account of events thereafter is significant. The complainer testified that he knocked on the door but got no reply; however the door flew open and the complainer saw a "big shiny dagger". Ross Millar, as distinct from Ross Millar's father, had the dagger. Earlier in his evidence he had testified that Ross Millar, Ross Miller's father and David McManus were in Michelle Golding's flat when he arrived there. He knew David McManus but this was the first time that he had met Ross Millar. The three men left the flat at some point and he left shortly thereafter. He distinguished the appearance of Ross Millar and his father by saying that the father had a tattoo on his face and he would be able to recognise the father if he saw him again. When the appellant's father was brought into court the complainer identified him as the father. Thus, when the complainer referred to Ross Miller having the dagger when the door flew open, the jury could conclude that the witness was referring to the appellant. The witness knew McManus as "David" or "Div" and as between the two men named "Ross Millar" he could distinguish between the father and the son and was clearly referring to the son. In re-examination the witness put the matter beyond any doubt by testifying that it was not McManus who assaulted him nor the father but "the other person". Michelle Golding identified the appellant as the person who arrived at her flat with David McManus and who was subsequently joined by the appellant's father. In all the circumstances we are satisfied that the jury was entitled to interpret the complainer's evidence as indicating that of the three people in the appellant's flat it was the appellant who emerged from the flat holding a dagger immediately before the appellant stabbed him in the neck.

[8] We are accordingly satisfied that there was a sufficiency of evidence at the conclusion of the Crown case and that the trial judge was correct to repel the submission of no case to answer. Accordingly we shall refuse this appeal.