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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Kingarth
Lord Eassie
Lord Marnoch
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2009 HCJAC20
Appeal No: XC687/06
OPINION OF THE COURT
delivered by
LORD KINGARTH
in
APPEAL AGAINST CONVICTION
By
ALEXANDER LEVERAGE
Appellant ;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant:
Shead; Gilfedder & McInnes
Respondent: Ferguson, Q.C., A.D.; Crown Agent
25 February 2009
[1] On 31 August 2006 at Edinburgh High Court the
appellant was found guilty of a charge that:
"on 3 April 2006 at the
premises known as Co-op Superstore, 219 Wallacewell Road, Glasgow, you did
assault Margaret Macaulay Stevely McDougall, Lisa Jane Scouller and Angela
Hendry, all employees there, and George Power and Jean McDowall Daniels, both
c/o Strathclyde Police, London Road, Glasgow, customers there and did present a
firearm, namely a shot gun or similar instrument at them, place them in a state
of fear and alarm, discharge said shot gun or similar instrument, repeatedly
demand that tills be opened and repeatedly demand that they hand over money and
mobile phones and all this you did with intent to rob them and you did attempt
to rob them of mobile phones and a sum of money".
The appellant has appealed against this conviction.
[2] As
reported by the trial Judge the circumstances were that at about 7.00 pm on the
evening of 3 April 2006 four female shop assistants were on duty in the Co-op
Superstore, 219 Wallacewell Road, Balornock, Glasgow when a man entered
carrying a shotgun wrapped in a black plastic bag bound with brown tape. He held the gun at waist level with the
barrel projecting in front of him and began to shout, "It's a hold up". His attention was initially taken up with a
male customer, who was in possession of a mobile telephone. The man demanded that the customer hand over
the telephone, but he was able to escape from the store by running along the
aisles. The man then turned towards the
counter and fired the gun, the shot passing between two of the staff members
who were standing behind the counter at two tills. All four staff members were terrified and
threw themselves on the floor. They then
tried to crawl out from behind the counter to get away from the man. The man was shouting, "Open the fucking
tills," and demanding the keys to the tills, but one of the shop assistants
told him that they did not have them.
The shop assistants attempted to take refuge in the aisles of the store,
along with two female customers. The man
continued to demand the keys for the tills, but was again told that the staff
did not have them. The shop assistants
were by this time extremely distressed, and when he saw this the man said,
"It's all right, don't worry", and put the gun down at his side. At this point one of the assistants who had
in the meantime managed to get out of the premises, pushed open the door of the
store from the outside and said to the man, "There's the polis coming if you
want to get away now." The man then walked
out of the shop still carrying the gun.
[3] A male
customer, who had left the shop shortly before the perpetrator's arrival and
was sitting in a car outside, saw the apparent perpetrator leaving the shop and
his suspicions were aroused. He saw him
walk from the shop along Wallacewell Road and enter the house at
No. 149. The customer then returned to
the shop and gave the supervisor a note of that address. The address was found to be that of the
parents of the appellant. Police
officers went to the house later that evening and detained the occupants
overnight. At about 9.30
am
the following day officers returned to the house and found the appellant in the
kitchen in an agitated state. He said
that he had spent the previous evening at his uncle's house at 94 Barmulloch Road where he normally
lived. He then went voluntarily to Baird
Street Police Office where a statement was taken from him in which he denied
any responsibility.
[4] Two of
the shop assistants identified the appellant as the perpetrator of the assault
and attempted robbery. The women in the
store at the time of the robbery had been affected psychologically by their
experience. The supervisor had not
returned to work six months after the robbery, while a customer had become more
fearful of going out on her own.
[5] The
appellant gave evidence and denied his involvement, maintaining that he had
spent the evening of the robbery in his uncle's house. His uncle gave supporting evidence. The jury rejected that evidence and convicted
the appellant.
[6] In the
ground of appeal lodged before this court it is stated on the appellant's
behalf:
"The Crown relied for
conviction on the evidence of two witnesses.
In the course of the evidence of one of them, Angela Hendry, those
acting for the appellant sought to put to her a previous statement she had made
in relation to her ability to identify the appellant as the perpetrator of the
offence. The advocate depute opposed the
line to be taken in cross-examination.
Having heard argument the trial judge sustained the objection. It is submitted that in so doing he erred."
Before this court it was maintained that this error
resulted in a miscarriage of justice.
[7] A
transcript of the whole of the witness Angela Hendry's evidence was before the court. For present purposes it is enough to say that
in evidence in chief the witness described working in the shop at the relevant
time and seeing the actions of the perpetrator in the course of the robbery as
described in the charge. Although she
described him as having something like a rubber glove pulled down over part of
his face, she could see his eyes. She
identified the appellant in court. She
also confirmed that she had attended a DVD identification parade on 11 April 2006 and picked out images of the
appellant as depicting the person who carried out the attempted robbery.
[8] She
was then cross-examined on behalf of the appellant by Mr Freeman,
solicitor-advocate. Although the witness
agreed that she was frightened and concerned for herself, that her focus was on
the gun, and that at some point the perpetrator had his back to her, she
disagreed with the suggestion that her view was obscured by some kind of
counter screen. When asked about inter alia the limited view she had had
of the perpetrator's face she accepted that she did not get a look at his whole
face at any stage. She accepted that at
the identification parade she had asked to see the images of three men a second
time before picking out the appellant. As
to that, however, there followed the following exchange:
Q "What, what was it of the
image that you picked at the very end that made you sure that was the person?"
A Cause I just knew it was.
Q Can you tell me how?
A Just his eyes.
Q Just his eyes?
A Yeah"
Shortly
thereafter the witness said:
"But as soon
as I seen his face, I knew, cause my legs started going with nerves. I knew."
[9] Later
in the course of her cross-examination she was asked "Has it always been your
position that you'd be able to pick this person out?" She answered in the affirmative. Mr Freeman
then sought to put to her a statement which she was alleged to have made on a
previous occasion in relation to her ability to identify the perpetrator. The advocate depute objected to the question
on the grounds that the solicitor-advocate was not in a position to lead
evidence of a prior inconsistent statement made on a specified occasion in
terms of section 263(4) of the Criminal Procedure (Scotland) Act 1995.
[10] The
background to the objection, as explained by the advocate depute, was that a
typed version of what bore to be a police statement taken from the witness at
1925 hours on 3 April 2006 by PC O'Donnell had been given to the defence
several months previously. That version
of the statement concluded with the words "I do not think I would recognise the
male again". PC O'Donnell's notebook, in
which he had noted the witness statement on 3 April, had been made available to
the Crown during the week prior to the commencement of the trial, and it had
been found not to include the sentence quoted above. On the day before the trial the advocate
depute was informed that, having been precognosed in relation to this matter,
it was PC O'Donnell's position that he had made a mistake, and had added
the final sentence to the typed statement in error. He had no good explanation for doing so, but
said that one of several female witnesses whom he had interviewed had said the
words and he had wrongly attributed them to Miss Hendry.
[11] In
reply Mr Freeman informed the court that, having been alerted by the Crown
to the potential problem , he had arranged for his assistant to precognose PC O'Donnell
that morning. The information which he
had was that PC O'Donnell's position was that after taking a verbal
statement from Miss Hendry at the store he had gone back to the police office
and transposed the statement onto a separate sheet for typing. While doing so he remembered that she had
said "I do not think I would recognise the male" He had an honest and genuine recollection at
that time that that was what she had said.
He did not now know what she had said.
[12] Mr Freeman
nevertheless accepted in the course of the discussion before the trial judge
that there was evidence that on 5 April 2006 the witness had given a
further statement to the police (apparently a longer statement taken at the
police station) in which she had said she thought she would be able to
identify the perpetrator. Although at
one point it appeared, on questioning from the court, that Mr Freeman
accepted he could not lead PC O'Donnell in evidence to say that the witness did
make the statement included in the typewritten document, at all times he
maintained the position that he wished to ask the witness about whether she had
said what was there noted, and ultimately his submission was that it would be
for the jury to decide what to make of the officer's evidence. He maintained that "...if he is questioned
closely enough about that in front of the jury, he might concede, for example,
that at the time he thought that was what she said".
[13] In
sustaining the Crown objection the trial judge is recorded as having said at
the time:
"Yes, the starting thought
for the consideration of this objection, it seems to me, is the rule that
hearsay evidence is not admissible, and the evidence which is sought to be
elicited ultimately by Mr Freeman is, at the end of the day, hearsay. There is an exception to the inadmissibility
of hearsay evidence, when, under Section ... [263] ... when a witness can be shown
or proved to have made a contrary statement at some other time. It is permissible, admissible, to lead that
hearsay evidence of the contrary statement, if that evidence is put to the
witness in the way required by the case of Paterson, or at least the
interpretation of Section ... [263], ... set out in Paterson. Now, investigation, appropriate investigation
and legitimate investigation in this case has shown that it is not possible to
prove that Miss Hendry made a contrary statement. The investigation has shown, it seems to me, the
culmination of the investigation is that the police officer is saying he made a
mistake by putting down the extra sentence in the typewritten statement. It seems to me that if Mr Freeman's
question is allowed, then the result will be that he will be enabled, or at
least consider himself entitled, to seek to find out what the hearsay evidence
was, because we, at the present time, either know there wasn't any or, at the
very best for him, don't know what it was.
That is not the function of this court.
This court is to, the function of this court, is to lead and hear
admissible evidence, the best evidence in the form of oral testimony of the
witnesses in the witness box. In these
circumstances, I shall sustain the Crown objection."
[14] On
behalf of the appellant counsel argued that the trial Judge had erred in
sustaining the objection. The
information in the possession of Mr Freeman - which was different from
that apparently in possession of the Crown - formed an entirely proper basis
for the question asked and, if necessary, for the leading of PC O'Donnell
to seek to contradict the witness. In
the circumstances it could be said to have resulted in a miscarriage of
justice. A relevant and competent line
of examination relating to the reliability of an important Crown witness had
been denied. The test which properly
fell to be applied was whether it could be said the verdict could possibly have
been different. Reference in particular
was made to Hogg v Clark 1959 JC 7, and to the
opinion of the Lord Justice General (Clyde) where, at page 10, he
said:
"...can we say that the
exclusion of the cross-examination in question might not possibly have affected
the conclusion arrived at by the Sheriff-substitute? For it is only if we can negative that
possibility that this conviction can stand.
That is the test laid down by Lord Mclaren and Lord Wellwood
in Falconer v Brown and adopted by the Lord Justice Clerk (Alness) in Winning v Torrance.
To maintain a conviction, in the light of that test, a very heavy onus
rests on the Crown..."
That test was not only consistent with the earlier
authority referred to; it had been applied by the Privy Council in Holland v HMA 2005 (1) SC (PC) 3 (in particular by Lord Rodger at para 82),
albeit in a case concerned, at that point, with non-disclosure. The important consideration was the loss of
opportunity, as emphasised in Moir v HMA 2007 JC 131. Although, in what was a non-disclosure case,
a different test of "real risk of prejudice" had been applied in McInnes v HMA 2008 SCCR 869, leave was
being sought (and indeed has now been granted) to appeal that decision to the
Privy Council.
[15] The Advocate
depute submitted that it could not be said that the trial judge had erred. He was reasonably entitled to conclude that Mr Freeman
had effectively accepted that PC O'Donnell was not in a position to say that
the witness had said what was contained in the typescript of the witness'
statement of 3 April 2006 respecting her ability to
identify the perpetrator. In any event
it could not be said in all the circumstances that any error had resulted in a
miscarriage of justice. The test which
should be followed was whether there could be said to have been caused a real
risk of prejudice to the appellant.
Reference in particular was made to McInnes
v HMA. The test applied by the Lord Justice General
in Hogg v Clark should not be adopted. In particular the powers of the court which
were then current (Section 2(1) of the Criminal Appeal (Scotland) Act 1926)
were such that if the court was persuaded that an error of law had occurred it
was bound to quash a conviction unless the Crown could show, under the relevant
proviso, that no substantial miscarriage of justice had occurred. Under the current statutory regime, by
contrast, the onus was on the appellant in all cases to persuade the court that
a miscarriage of justice, within the meaning of section 106 of the Criminal
Procedure (Scotland) Act 1995, had
occurred. As to the significance of the legislative
change, reference was made to McCuaig v
HMA 1982 JC 59 and McAvoy v
HMA 1982 SCCR 263.
[16] We have
come to the view that the trial judge erred in sustaining the objection which
was taken, and insisted in, by the Advocate depute. The objection was taken on the basis that Mr Freeman
was not in a position to lead evidence of a contrary statement, were the
witness to deny making such a contrary statement. Since the question which the
solicitor-advocate sought to ask at that stage was of the witness herself, and
as to whether she had said what was recorded in the typescript document, the
objection, if taken at all, should properly have been on the ground that the
questioner had no proper basis entitling him to put that question. But since that effectively gives rise to the
same issue, the matter can perhaps be judged on the basis on which the
objection was advanced and determined.
It appears to us to be clear from the transcript not only that the Advocate
depute and Mr Freeman had different and conflicting information from
PC O'Donnell, but also that on the information available to
Mr Freeman it was the police constable's position that although he had no
present recollection of what had been said, the transcript was consistent with
what he recalled the witness had said some hours earlier. In the circumstances, Mr Freeman had, it
appears to us, not only a professionally proper basis for asking the question
of Angela Hendry, but also for leading the police constable with a view to
contradicting her if she disputed it. On
the information before him, therefore, the trial judge was, we consider, wrong
to conclude that the culmination of the investigation was that the police
officer was saying he made a mistake by putting down the extra sentence in the
typewritten statement, or even to conclude that, at best for the defence, the
solicitor-advocate did not know whether the witness had said what was
recorded.
[17] The
question thus comes to be whether it could be said that this resulted in a
miscarriage of justice.
[18] The
parties differed as to the appropriate test to be applied. On the one hand the court was invited to ask
whether it could be said that the verdict might possibly have been different
(following the approach of the Lord Justice General in Hogg v Clark, and the earlier cases referred to in
his opinion); on the other to ask
whether it could be said that the trial judge's decision could be said to have caused
a real risk of prejudice (following the approach in McInnes v HMA). As narrated above the Advocate depute argued inter alia that it was important to
notice that the decision in Hogg v Clark was reached against a different
statutory background circumscribing the court's powers, which, unlike the
current provisions, placed an onus on the Crown to show that no substantial
miscarriage of justice had occurred, whereas counsel for the appellant stressed
inter alia that the decision in McInnes was reached in the different
context of non-disclosure, and is to be subject to further consideration.
[19] We have
come to the view that it is unnecessary, in this case, to reach a view as to
which is the appropriate test. This is not
because if, as was accepted before us and as has been suggested elsewhere, the
test advanced by the Lord Justice General in Hogg v Clark is
understood as referring to a reasonable, rather than to a far fetched or purely
hypothetical, possibility, it is arguable that the difference between that test
and the test of real risk of prejudice may be more apparent than real. Rather, even adopting what may be said to be
the more favourable test of the Lord Justice General in Hogg v Clark advanced on
behalf of the appellant, we have come to the view that, in the particular
circumstances of this case, it cannot be said that had the question, or line of
evidence, been allowed there existed any real possibility that the verdict
would have been different. In testing
the matter in this way we are, we think, approaching the question in the same
manner as the court in Dye v HMA 2008 SCCR 693.
[20] It is
not simply that the chances of the witness herself agreeing that she had on 3 April 2006 said what was being suggested respecting
her likely ability to identify or, if she did not, of the police witness giving
evidence that she had, could both be described as substantially uncertain. It is not for the court to speculate, and the
latter (the police officer's so testifying), if not the former, could, we
think, be described as at least a real possibility. Instead, the matter can, we consider, be
tested on the most favourable assumption for the appellant, namely that the
witness herself would, if the further questioning had been allowed, have agreed
that she had indeed said at the time that she did not think she would be able
to identify the perpetrator (and that that truly represented her position at
that stage). Even if that had been said,
it appears undisputed that two days later, in an apparently more considered and
lengthier statement taken in the police station, the same witness said that she
thought she would be able to identify the perpetrator (and, as was not
disputed before us, it is reasonable to assume that that information would have
been made known to the jury if the disallowed line had been allowed). Moreover it is, we think, in no sense unusual
or surprising that a witness shortly after a traumatic event, in particular after
having been confronted by a partially-masked intruder, might initially, in the
abstract, think that he or she might not be able to identify the perpetrator,
but nevertheless be in no doubt of identification when confronted by the real
features of a person (or of the images of a person) at an identification
parade, and in that context the description of how, on the day of the
identification parade, Angela Hendry came to identify the appellant could, we think,
only have been regarded as compelling.
Further, in addition to the evidence of Angela Hendry, there was, in
this case, not only evidence of identification by another eye witness in the
shop but, significantly, independent evidence of the apparent perpetrator being
seen to leave the premises and entering an address, that of the appellant's
parents, where the appellant was detained, in an agitated state, at 9.30 am the
following morning.
[21] In
these circumstances we are not persuaded that any miscarriage of justice
entitling us to interfere with the jury's verdict has occurred, and,
accordingly, the appeal is refused.
