APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Philip
Lord Kingarth
Lord Mackay of Drumadoon
|
[2006]
HCJAC 63
Appeal
No: XC759/05
OPINION OF THE COURT
delivered by LORD KINGARTH
in
NOTE OF APPEAL AGAINST
CONVICTION
by
SUSAN LOUISE LAW
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: A. Ogg,
Solicitor/Advocate; Balfour &
Manson, Edinburgh
Alt: A. Stewart, Q.C.,
A.D.; Crown Agent
23
June 2006
[1] On
9 September 2005, in the High Court at Kilmarnock, the appellant and her
co-accused James Weir were found guilty after trial of a charge (charge 2 on
the indictment) that
"on 8
February 2004 at 15B Arkleston Court, Paisley you JAMES WEIR and SUSAN LOUISE
LAW did assault Paul Carter, then residing there, and did repeatedly strike him
on the head with a knife or similar instrument, bind his wrists, compel him to
get into a bath and compel him to attend at 86 Gallowhill Road, Paisley, with
the intention of obtaining money there, all to his severe injury and permanent
disfigurement."
The appellant appeals against this
conviction.
[2] The
ground of appeal advanced in the Note of Appeal, and which was argued before
us, is that the trial judge erred in repelling a submission of no case to
answer in respect of charge 2, which had been
made on the appellant's behalf at the close of the Crown case. The submission made was to the effect that
there was insufficient evidence to corroborate the direct evidence of the
complainer as to the appellant's involvement, along with her co-accused, in the
commission of the offence.
[3] As
reported by the trial judge the complainer's evidence was:
" ... that
Weir and the appellant, who were boyfriend and girlfriend, visited him in the
complainer's flat at Arkleston Court, Paisley and
assaulted him there during the night of 7 and 8 February 2004.
Before the assault occurred, Weir locked the doors of his flat to
prevent his escape. He tied the
complainer's hands. At some stage Weir
and the appellant demanded money (£100) from the complainer. The assault occurred in the following
way. The appellant took a Stanley knife from
her bag and gave it to Weir who slashed the complainer's face repeatedly. The appellant initially cried at the sight of
the complainer's blood but then took the knife and slashed his ear with
it. She also hit him over the head with
a mug. The complainer informed them that
he had about £60 at his parents' house at 86
Gallowhill Road.
The appellant and Weir made the complainer wash the blood off himself in
the bath in his bathroom and then took him to his parents' flat which was
approximately 5 minutes walk from the complainer's flat, in order to
obtain money from him or from his parents.
The complainer explained that Weir and the appellant deliberately took
him down the back stairs to exit the block of flats in which he lived in order
to avoid CCTV surveillance in the lifts and in the front hall. There was one CCTV camera in the rear hall
and the complainer said that the appellant hugged him to her shoulder as they
left in order to hide the facial injuries from the camera. On reaching the complainer's parents' house,
the complainer's evidence was that Weir remained outside while the appellant
accompanied the complainer into the house to obtain money from his
parents. When in the house, the
complainer burst out crying and, when his mother asked him how he came by his
injuries, told her that 'they' had done it and that they wanted money. He did not state who 'they' were. His mother refused to give any money and said
that she would phone the police. At that
point, the appellant used the complainer's mobile phone which she had earlier
taken from him and had in her possession to alert Weir to the crisis which was
developing. Weir burst open the door of
the close and the door of the complainer's parents' flat. When the complainer's father, Mr Carter
senior, who had been woken by the noise of Weir breaking in, confronted Weir
and pushed him to the floor, the appellant jumped on his back and shouted at
him to leave Weir alone. Weir and the
appellant then escaped, the appellant leaving her handbag in Mr and Mrs
Carter's flat."
[4] There
was, it seems, no other eye-witness evidence of what happened in the
complainer's house. The trial judge
explains in his report, however, that he took the view that there was evidence
which a reasonable jury could treat as corroborative of the complainer's
account. He informs us:
"First,
there was the CCTV footage which showed the appellant and Weir arriving in the
block of flats at Arkleston Court at about 10.30pm on the evening of Friday 7
February 2004 and the appellant's not leaving until 7.25am on the following
morning. In the course of the evening,
the complainer and Weir left the block of flats to buy drugs and the CCTV
showed them returning at about 11.28pm on 7
February when the complainer was apparently uninjured. Then at 7.25am on 8
February, the CCTV at the back exit of the block of flats showed the complainer
apparently being helped out of the building by the appellant, with Weir walking
in front of them. The jury could infer
from the complainer's gait and demeanour that he was injured by then and that
the appellant was either assisting him by letting him lean his injured head on
her should or, as the complainer asserted, that the appellant and he were
hiding his facial injuries from the CCTV.
Secondly,
there was the evidence of Mrs Carter concerning the appellant's behaviour when
she was in the complainer's parents' flat between about 7.30am and 7.45am on 8 February
2004. Mrs Carter
identified the appellant as the girl who brought the complainer to her flat at
this time (only minutes after they were captured on CCTV leaving Arkleston
Court).
Mrs Carter spoke of the complainer's injuries and that the complainer
stated, in the appellant's presence, that 'they ... did it and they want
£60'. Mrs Carter refused to pay and said
that she would phone the police.
Thereafter she left the room but heard noises and banging. The jury were, in my opinion, entitled to
infer that the appellant would have heard what Mrs Carter said as she was in
close proximity to the complainer when his mother said that she would phone the
police.
Mr John
Carter, the complainer's father, spoke of hearing the close door being kicked
open at about 7.30am, pulling
on his trousers and seeing his front door kicked in. He was confronted by a hooded man, whom he
wrestled to the ground. A girl shouted
at him to leave him alone and jumped on his back. The man and the girl then ran out of the
house while Mrs Carter was on the phone in the livingroom. I took the view that the jury were entitled
to infer that this man was Weir who, as the complainer had stated, had been
alerted to the crisis by the appellant phoning him using the complainer's
mobile phone. Similarly, I took the view
that the jury were entitled to infer the female who jumped on Mr Carter
senior's back was the appellant as there was evidence that no one else was
present in the house other than Mr and Mrs Carter and the complainer when the
man and woman escaped. The appellant
left behind her handbag when she fled and PC Littlejohn, on examining it, found
documents which identified her as the likely owner of the bag."
[5] In
the event neither accused gave or led any evidence in the trial.
[6] In
presenting the appeal Miss Ogg accepted the trial judge's rehearsal of the
evidence, save in two respects. Miss Ogg
argued that it could not properly be concluded from the CCTV coverage that
after the appellant had entered the block of flats during the evening of 7
February, she had not left again until 7.25 a.m. on the following morning. Miss Ogg
maintained that was the position because
the CCTV coverage of the entrances to the block of flats had not been constant. Further there had been no evidence of the
appellant having taken the complainer's mobile phone from him that night. That apart, Miss Ogg accepted that the
question was whether the facts and circumstances spoken to by the other
witnesses could have been taken by the jury to confirm or support the direct
evidence of the complainer. Reference
was made to Fox v H.M. Advocate 1998 S.C.C.R. 115, and in
particular to the opinion of the Lord Justice General (Rodger) at page 126. Miss Ogg submitted that all of the pieces of
evidence referred to by the trial judge could be described as being neutral, or
so ambiguous that no reasonable jury could find in them support or confirmation
of the evidence of the complainer. In
particular the evidence as to the appellant's behaviour and reaction at 86
Gallowhill Road (which did not include any apparent aggression shown by her to
the complainer) could readily have been taken by the jury as a reaction either
to protect and warn her co-accused or in order to avoid her being wrongly
thought to have been involved in the assault on the complainer. Reference was made to Gallagher v H.M. Advocate 2000
S.C.C.R. 635, in which the direct evidence of the complainer, pointing to the
appellant as having, whilst acting along with another, assaulted him in his
house, was not found to be capable of being corroborated by the other evidence
led, including certain evidence according to which the appellant was seen to
run from the direction of the complainer's house after the time of the assault.
[7] We
have come to the clear view - agreeing with the submissions of the advocate
depute - that when all the circumstances of the evidence referred to by the
trial judge are considered together, and the principles referred to in Fox v H.M. Advocate are applied, it cannot be said that it was not open
to the jury to find in that evidence confirmation or support of the direct
evidence of the complainer as to the appellant's participation in the
offence. We consider it significant, inter alia, that it was open to the jury
(as we are informed by the trial judge) to take the view that the CCTV evidence
showed the appellant seeking to hide the complainer's injured face from the
camera as he, with his head on her shoulder, was led by her from the building,
with the co-accused in front (consistent with what had been been described by
the complainer himself). Further, we
agree with the advocate depute that the evidence of the complainer's parents as
to how the appellant behaved and reacted when she arrived with the complainer
at their house was not only consistent with the complainer's own account but
capable of being regarded as strongly indicative of the appellant's guilt. We did not find Gallagher v H.M. Advocate,
which was a decision on its particular facts, to be of any real
assistance. Although it is unnecessary
to go further, there seemed to us to be force in the advocate depute's further
submission that, given the nature of the whole terms of the charge in the present case, the
evidence referred to by the trial judge in his report could readily have been
regarded, not merely as circumstantial evidence, but as direct evidence of the
appellant's involvement in the commission of the offence.
[8] The
appellant's ground of appeal based on the trial judge's rejection of the
submission of no case to answer therefore falls to be rejected.
[9] There
remains for consideration at a later date a supplementary ground of appeal,
which was lodged on the date of the appeal hearing. That supplementary ground
of appeal is based on what is said to be fresh evidence which the co-accused
now wishes to give, inculpating himself and exculpating the appellant. It is said that a reasonable explanation exists
as to why that fresh evidence was not
heard at the trial, namely, that, so far as the appellant was concerned, her
co-accused was not a compellable witness.
It was only with some hesitation that we allowed this ground of appeal
to be received, given not only the lateness of its presentation (albeit some
explanation for that was tendered) but also having regard to the apparent
history of the positions adopted on behalf of the appellant and the co-accused
at the trial. In the course of the
submissions as to whether this
supplementary ground of appeal should be received we were, however, made aware
that certain wider legal questions might be thought to arise, which have not
yet been decided by this court - see e.g. Mills
v H.M. Advocate 1999 S.C.C.R.
202, and the unreported decision in Gray
v H.M. Advocate, 8 February
2006. We have, however, asked for a
further report from the trial judge to enable him to give such assistance as he
can as to the positions and lines of defence, which were adopted on behalf of
the appellant and the co-accused, in the course of the trial.
