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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> CELIA JANE FRASER v. HER MAJESTY'S ADVOCATE [2000] ScotHC 76 (11th July, 2000) URL: http://www.bailii.org/scot/cases/ScotHC/2000/76.html Cite as: [2000] ScotHC 76

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CELIA JANE FRASER v. HER MAJESTY'S ADVOCATE [2000] ScotHC 76 (11th July, 2000)

[1] This is an appeal against conviction by Celia Jane Fraser who appeared at Glasgow Sheriff Court and was convicted of breach of the peace and assault. The charges narrated that on 29 November 1997 in Dumbarton Road, Glasgow near Primrose Street, the appellant (1) conducted herself in a disorderly manner, shouted and swore and committed a breach of the peace, and (2) along with three co-accused assaulted Patricia Carden, pulled her hair, repeatedly punched and kicked her on the head and body, struck her on the face with bottles or similar instruments to her severe injury, permanent disfigurement, permanent impairment and danger to life. In the course of the trial, one of the appellant's co-accused, Susan Livingstone, pled guilty to the assault charge and another co-accused, Brenda Mallon, was convicted of that charge. The appellant was sentenced to 18 months imprisonment but no appeal is taken against the sentence.

[2] In the grounds of appeal it is alleged (1) that the sheriff misdirected the jury on the issue of identification and (2) that there was a miscarriage of justice on the basis of the existence of significant evidence which was not heard at the trial, under reference to section 106(1)(a) of the Criminal Procedure (Scotland) Act 1995 as amended.

[3] The evidence against the appellant on the assault charge is fully set out in the sheriff's report. Put shortly, the complainer identified the appellant as being the girl with short blonde hair who was present when the attack on her took place and who was standing beside her when she got up off the ground after the attack. Sharlene Williamson (16) gave evidence of a girl with short blonde bobbed hair being involved in the incident and, in particular, punching and kicking the complainer. She thought that she was the last of the four women to become involved in the attack on the complainer. She picked the appellant out at an identification parade but said that she had later told the police that she was not entirely sure about her identification. Karen Farquhar (22) gave evidence that she saw the complainer being hit in the face by a bottle and that it was being used by "the lassie with the blonde hair, short and bobbed". Nicola Dean (16) identified the appellant, who was the only woman there with short blonde bobbed hair, and said that one assailant grabbed the complainer by the hair and thereafter the other three women, including the appellant, jumped in pulling and booting her. She also said that prior to the attack she had seen a bottle in the appellant's hand immediately before she became involved although she did not see what happened to it. Nicola Dougan (16) gave evidence that the complainer was attacked by four women who were punching and kicking her. She said that the last person to become involved, who was a young woman with short blonde peroxide hair, had run and jumped into the assault. The woman with the short blonde hair was the only one in the group with that sort of hair. There was medical evidence that the complainer's injuries were consistent with the use of a broken bottle. The sheriff informs us that the Crown case against the appellant was that she had been the last person to get involved and that she had used a bottle on the complainer. The appellant did not give evidence but after the incident she had been interviewed by the police and she agreed that she had been the only one of the women with short blonde hair. Her position, however, was that she was not present at the time when the complainer was assaulted. When the attack happened she had run after her boy-friend, who was chasing some boys, and she had returned just as the attack finished. Susan Livingstone pled guilty to the charge and gave evidence that she, and only she, hit the complainer in the face with a bottle. At the time of the assault the appellant had run up a nearby road and, although she was back very quickly, she was not present when the bottle was used on the complainer. In the circumstances it is clear that there was sufficient evidence, if accepted by the jury, to entitle them to convict the appellant of assault involving the use of a bottle. The question which arises is whether or not the sheriff misdirected the jury on the issue of identification.

[4] In his charge to the jury the sheriff gave them the following directions:

He later directed the jury that there may be matters which bring into question the reliability of what a witness said and reliability meant that on a particular occasion the accuracy of the witness could be relied on.

[5] Counsel for the appellant submitted that the issue of identification was of crucial importance in this case. The Crown's position had been that two of the assailants, one of them being the appellant, had used a bottle on the complainer. It was accepted that there was sufficient evidence to entitle the jury, if they accepted it, to convict the appellant. However, three witnesses who identified the appellant in court had not identified her at the identification parade which was held about three weeks after the incident. These witnesses were the complainer, Karen Farquhar and Nicola Dougan. Sharlene Williamson had picked out the appellant at the identification parade but in court had only given evidence that the appellant was similar in appearance to one of the assailants. It was put to a number of Crown witnesses that they were mistaken in their identification of the appellant and that they had discussed her appearance after the identification parade had been held. Counsel accepted that all the alleged shortcomings of the Crown evidence on identification had been placed before the jury in the course of the speech by the appellant's solicitor. However, the sheriff should have directed the jury to take particular care in considering the evidence relating to identification, especially in view of the fact that witnesses had identified the appellant in court after failing to pick her out at the identification parade. Counsel referred to Webb v. H.M. Advocate 1996 S.C.C.R. 530 and Kearns v. H.M. Advocate 1999 S.C.C.R. 141. The directions on identification which the sheriff had given were inadequate and had amounted to a misdirection. In reply, the advocate depute submitted that the directions which the sheriff had given on identification were adequate, particularly as the defence criticisms of the Crown evidence relating to identification of the appellant had all been placed before the jury by the appellant's solicitor. The sheriff had stressed that the identification evidence was important and must be subjected to careful scrutiny. Reference was made to Shepherd v. H.M. Advocate 1996 S.C.C.R. 679 and Sanderson v. H.M. Advocate 1999 S.L.T. 1033.

[6] When the Crown relies on identification evidence, the directions which the presiding judge should give to the jury must depend on the facts of each particular case. In the present case the sheriff reminded the jury that a considerable amount had been said about identification and told them that "the evidence of an eye-witness who speaks to a particular person being present or doing something on a specified occasion is clearly very important evidence and must be subjected to the kind of careful scrutiny which important evidence demands". The sheriff then went on to refer to factors which the jury might wish to take into account in assessing the quality of the identification evidence and the weight to be given to it. It is accepted that the appellant's solicitor had, in his closing speech, placed before the jury all the defence criticisms of the evidence given by the Crown witnesses on identification, and in our opinion the sheriff was under no obligation to repeat, in the course of his charge, those criticisms. In the particular circumstances of this case we are satisfied that there was no misdirection by the sheriff.

[7] We now turn to the second ground of appeal which is that there was a miscarriage of justice in respect that significant additional evidence is now available which was not heard at the appellant's trial.

[8] Section 106(1)(a) of the Criminal Procedure (Scotland) Act 1995 provides that any person convicted on indictment may, with leave, appeal to the High Court against the conviction. Subsections (3) and (3A), so far as relevant, provide:

[9] On behalf of the appellant there has been produced an affidavit from Colin McCabe who was not a witness on the Crown list and apparently only volunteered his evidence after the trial. In his affidavit Mr McCabe states that the livingroom of his flat looks onto Dumbarton Road and in the early hours of the morning in question he had seen the appellant walking along Dumbarton Road in company with two boys. The two boys he referred to had been arguing with three young boys and had chased them up a side street. The appellant, however, continued walking along Dumbarton Road and was rejoined by one of the two boys, Peter Vaughan. The witness observed them walking about 400 yards before he lost sight of them. He then saw one of the appellant's co-accused, Brenda Mallon, arguing with an older woman and three young girls. A fight started and it developed into a free-for-all. There was a lot of punching, shoving and kicking going on. He says that he could clearly make out the faces of those involved but the appellant was not one of them. He left his livingroom and went into the bedroom to speak to his wife and he told her what was going on. She then accompanied him into the livingroom but the incident was over and those who had been involved were walking or running away. The older woman was running across Dumbarton Road and he could see that she was bloodstained. He said that the appellant had not been involved in any of this. He never saw her come back towards the fight and she was definitely not in the crowd fighting with the older woman. The following day he heard gossip that the older woman had been badly injured but he did not go to the police as he had been in trouble with them before and did not want to get involved. It was only after he heard that the appellant had been convicted that he decided to come forward and he contacted her boy-friend about what he had seen. Two other affidavits were produced but they were relevant only to the question as to whether there was a reasonable explanation of why Mr McCabe's evidence had not been heard at the trial.

[10] Counsel for the appellant submitted that there was a reasonable explanation of why Mr McCabe's evidence was not heard at the trial. He was not on the Crown list of witnesses and, although he states that he had witnessed the assault, he did not go to the police. In the circumstances the appellant and her solicitors could not reasonably have been aware of the existence of this witness and they had no reason to think that anyone had been watching the incident from a nearby flat. Counsel then dealt with the significance of the evidence which Mr McCabe could give. At the trial the appellant had lodged a special defence of alibi based on what she had told the police about her movements at the time the incident was taking place, and Susan Livingstone had given evidence in support of that alibi. The evidence which Mr McCabe could give would support the appellant's alibi and he is a totally independent witness. Counsel accepted that Mr McCabe's evidence had to be material evidence relating to a critical issue for the determination of the jury at the trial and in the end of the day the court would need to be satisfied that there had been a miscarriage of justice on the basis of a verdict given in ignorance of the fresh evidence (Cameron v. H.M. Advocate 1987 S.C.C.R. 608 at pages 618-9). One question which now arose was whether the evidence was capable of being found to be credible and reliable and in that connection the court should hear the evidence of Mr McCabe. The other issue was whether the evidence of Mr McCabe was significant evidence and counsel submitted that it related to the important issue of identification and was prima facie significant and that was all that required to be demonstrated at the present stage. If necessary, the issue of its significance could be reconsidered once Mr McCabe's evidence had been heard. Counsel referred to Kidd v. H.M. Advocate 2000 S.C.C.R. 513 and McLay v. H.M. Advocate 2000 S.C.C.R. 579.

[11] In reply, the advocate depute accepted that, on the face of the affidavits, there was a reasonable explanation of why Mr McCabe's evidence was not led at the trial but he submitted that the evidence was not of such significance as would justify the court in hearing it. The position of the appellant, on the basis of the information which she gave to the police when she was interviewed, was that when the attack happened she ran off chasing somebody up a side street and returned just as the attack finished. The Crown case was that there were four assailants, one of whom was the appellant, that she used a bottle on the complainer, that she was the last to become involved and that she was there when the assault came to an end. In his affidavit Mr McCabe states that he saw the complainer involved in a free-for-all with three women, being the other three accused. He said that he went into the bedroom and spoke to his wife and when he went back to the livingroom window the incident was over. On the basis of Mr McCabe's affidavit, his evidence would not exclude the possibility that the appellant, wielding a bottle, had joined in the attack on the complainer. Further, Mr McCabe's evidence contradicts the account which the appellant had given to the police about her movements before the complainer was assaulted. The appellant requires to satisfy the court that, if the evidence of Mr McCabe was capable of being treated as credible and reliable, his evidence would be of such significance that a verdict reached in ignorance of it constituted a miscarriage of justice. At the present stage the contents of the affidavit had to be taken pro veritate and it was not permissible to speculate on what else Mr McCabe might say if he was allowed to give evidence. In the circumstances the evidence of Mr McCabe, on the basis of his affidavit, was not evidence of such significance that it should be heard by the court.

[12] On the basis of all the information before us, and particularly the contents of the affidavit, we accept that the existence of Mr McCabe's evidence was not known to the appellant or her legal advisers, and could not reasonably have been expected to be known to them. In the circumstances we are satisfied that there is a reasonable explanation of why his evidence was not heard at the appellant's trial. Counsel for the appellant invited us to hear Mr McCabe's evidence so that it could be determined whether or not his evidence was capable of being found by a reasonable jury, properly directed, to be both credible and reliable. However, before reaching a decision as to whether or not his evidence should be heard, we must examine the significance of that evidence and in that connection we must proceed on the basis of what is contained in Mr McCabe's affidavit. The Crown case was that the complainer was attacked by four women, alleged to be the four accused, and that one of the assailants was the appellant who was the last woman to become involved and who had a bottle which she used on the complainer. We are informed by the sheriff that Sharlene Williamson gave evidence that she thought that the appellant was the last of the four women to become involved in attacking in the complainer and that Nicola Dougan gave evidence that the complainer was attacked by four women and that the last person to become involved in the assault was the appellant. In his affidavit Mr McCabe states that he saw a fight starting which developed into a free-for-all. He said that he could clearly make out the faces of those who were involved and he could see that the group fighting were Brenda Mallon, Lizzie and Susie (accepted to be the other three accused) on the one hand and the older woman (the complainer) on the other. He states that he then left his livingroom and went into his bedroom to speak to his wife. He told her what was going on and she came back to the livingroom with him. They both looked out of the livingroom window and saw that the other three accused were walking along Dumbarton Road towards Scotstoun and that the older woman, who was bloodstained, was running across Dumbarton Road. On the basis of what is contained in his affidavit it would appear that Mr McCabe saw the three co-accused fighting with the complainer but he did not see the end of the incident. He had gone to the bedroom to tell his wife what was happening but by the time he returned to the livingroom window the incident was over and the participants whom he had seen were walking or running away. In our opinion there is, in Mr McCabe's affidavit, nothing that is necessarily inconsistent with the appellant having joined the other three women in their attack on the complainer and then, as soon as it was over, having left the scene, albeit not in the company of the other women. It should also be noted that Mr McCabe appears to contradict the account which the appellant gave to the police about her movements prior to the incident. In the particular circumstances of this case we are not satisfied that the evidence which Mr McCabe could give would be of such significance as to lead to the conclusion that the verdict of the jury, reached in ignorance of that evidence, must be regarded as a miscarriage of justice. We are therefore not prepared to hear the evidence of Mr McCabe. It follows that, for the reasons which we have given, the appeal is refused.