Scottish High Court of Justiciary Decisons

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 122

HCA/2014-001943-XC &

HCA/2014-002010-XC

 

Lord Bracadale

Lady Clark of Calton

Lord Wheatley

 

OPINION OF THE COURT

delivered by LADY CLARK OF CALTON

in

APPEALS AGAINST CONVICTION

by

(1) JOHN CARLIN;  and (2) JAMES MCCLUCKIE

Appellants;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  McElroy;  Paterson Bell Solicitors (for the first appellant)

Paterson;  Paterson Bell Solicitors (for the second appellant)

Respondent:  McSporran AD;  Crown Agent

13 November 2014

The background circumstances
[1]        The appellants were indicted on a single indictment containing two charges in the following terms:

“(001)  on 08 August 2012 at …, Irvine you JOHN CARLIN and JAMES MCCLUCKIE did whilst acting together assault William Galloway, c/o Police Service of Scotland and did repeatedly punch and kick him on the head and body and strike him on the head and body with an unknown implement all to his severe injury and permanent disfigurement

 

(002)    on 8 August 2012 at …, Irvine you JOHN CARLIN and JAMES MCCLUCKIE did whilst acting together assault Patrick Mulgrew, c/o Police Service of Scotland and did repeatedly punch and kick him on the head and body, thereafter strike him on the head and body with an unknown implement, all to his severe injury and permanent disfigurement”

 

[2]        On 26 March 2013 after trial at Kilmarnock Sheriff Court, the appellants were found guilty by a majority of the two charges.  On 14 April 2014 the first appellant (Carlin) was sentenced to a cumulo period of two year imprisonment and the second appellant (McCluckie) was sentenced to a cumulo period of two years detention.  Both sentences were backdated to 26 March 2014.  The appellants appealed the convictions.

 

The reports by the sheriff
[3]        The sheriff provided two reports which set out the evidence.  Unfortunately the reports did not set out the evidence in identical terms and not all the potentially relevant evidence was included in each report.  In a case such as this where the appellants are accused of acting in concert and the undisputed evidence of the complainers was to the effect that there were two males involved, this approach proved unhelpful and confusing.  It was possible however to work out from the reports a narrative of the evidence in relation to the critical issue of identification.  It is necessary to read both reports together to achieve this.  We observe that it is desirable that each report should be self-contained and sufficient  in respect of the relevant evidence albeit different responses may be required in response to the particular grounds of appeal raised by each appellant. 

[4]        It is unnecessary to repeat the full summary of the evidence but we make reference to parts of the evidence to put the issues into context.  There is reference in the sheriff’s report in relation to the second appellant to identification evidence by the complainer, William Galloway, about a Viper identification in which William Galloway was said by DC McCulloch to have identified the second appellant.  The advocate depute conceded that this evidence was hearsay evidence by DC McCulloch.  Albeit no objection had been taken to the evidence, the position of the Crown in the appeals was that they did not seek to rely in any way on this evidence.  

 

Evidence from the complainers
[5]        The two complainers were asleep in different rooms in an upstairs flat in a block of five flats.  Entrance to the block of flats was via an entry system.  The complainer, William Galloway, described opening the door to the flat to two males.  Two males entered and the complainers were assaulted by them.  At trial, William Galloway could not describe either of the two males responsible.  He did adopt, as the truth, two police statements in which he gave descriptions of the two males responsible for the assaults.  William Galloway was shown CCTV footage which he said showed two males “at the stairs at my bit facing up”.  He confirmed that both males in the CCTV fitted the descriptions given by him to the police.

[6]        Patrick Mulgrew in his evidence was unable to describe either of the males.  He adopted as true a police statement in which he said that there were “two guys” involved whom he described.  One male was “mid to early 20s”, black top, thin build.  The other male was mid to early 20s, light coloured top, thin build.  The male in the black jacket assaulted him.  When he viewed the CCTV, he confirmed that one male was between 20 to 22 years in age with a grey hoodie and black hair.  The second male had a black hooded top and was about 18 years old with black hair. 

[7]        Neither complainer was cross‑examined. 

 

Evidence from police witnesses
[8]        The only other evidence in the case was led by the Crown from various police officers and this was subject to cross‑examination.

[9]        PC Donald Fisher gave evidence about a statement which he had taken from William Galloway at 23.15 “immediately after the incident”.  William Galloway was able to describe only one male. 

[10]      DC Stuart McCulloch said in evidence that he took a statement from William Galloway at 11.25 am on 9 August 2012.  That statement included the following:

“The two males came into my flat, I didn’t know who they were, but they did say that they were Pat’s nephew.  It was the one wearing a grey top that said this.  Both the males were assaulting us both.  I can’t be sure exactly what weapons they have used.  I would describe the males as tall, about 5’11”, grey hooded top, dark hair, possible about 23‑24 years old.  The other male was slightly shorter, maybe 5’9”, he had dark hooded top on, dark hair, also in his 20’s, 23‑24.  They had local accents but I had never seen them in my life before.”

 

DC McCulloch also gave evidence about retrieving the CCTV dated 8 August 2012 which showed the entrance to the block of flats.  He viewed the CCTV (timed at 22.22) and identified the first appellant as “the male with the grey hoodie”. 

[11]      DC Nisbet gave evidence that he first viewed the CCTV on 9 August 2012.  He recalled seeing two males at a secure entry door together and they moved to climb over a wall.  He identified both appellants as the two males shown on the CCTV because he knew them both.  He identified the male wearing the grey hoodie as the first appellant from his facial features, his dark hair and the shape of his face. 

[12]      PC Mark Sanderson and PC Fiona Gibson gave evidence about viewing the CCTV and they both identified the second appellant as the second male in the CCTV.  PC Fiona Gibson identified the male who “starts to climb over the wall”, as the second appellant.

 

The grounds of appeal advanced on behalf of the appellants
[13]      Both appellants had grounds of appeal directed to insufficiency of evidence.  As advanced before us in oral submission, the argument was that the sheriff erred in law in repelling a submission, made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 at the conclusion of the Crown case, to the effect that there was insufficient evidence in respect of each appellant to corroborate the identification of the assailants involved in the attack on the complainers as the appellants. 

[14]      Of consent,  the solicitor advocate for the second appellant made the first submission.  He accepted that the appellants were identified from the CCTV by police witnesses at an area near to the locus of the assaults.  He submitted however that there was no identification of the appellants within the flat and no direct identification by the complainers of either of the appellants as being involved in the assaults.  According to the evidence of the complainers, the assault was said to have occurred between 9 and 11 pm or thereabouts.  The CCTV images were captured at 22.22 hours on 8 August 2012.  The height of the Crown evidence was that two males, identified by police evidence as the appellants were outside the block of flats, perhaps acting suspiciously at about 22.22.  The solicitor advocate accepted that William Galloway confirmed that both males in the CCTV fitted the description he gave to the police, which he adopted as the truth in evidence, but this was a vague general description which fell far short of identification of the appellants as the perpetrators of the crimes charged.  He submitted that the evidence from Paul Mulgrew was even weaker and no link with the CCTV evidence was spoken to by him.  Such evidence was insufficient to provide the necessary evidential link that the attack on the complainers was by the appellants.

[15]      The solicitor advocate for the first appellant adopted the submissions made on behalf of the second appellant.

 

Discussion
[16]      These appeals raise a short and narrow point.  We are required to assess the sufficiency of the evidence of identification.  The law was not in dispute.

[17]      We accept that some discrepancies can be identified in the police evidence and that criticisms can be made of it.  But there was plainly a substantial basis in the police evidence identifying the appellants as the two males shown together in the CCTV at 22.22 on 8 August.  The evidence about the CCTV disclosed the actings of the males outside the block of flats and there was evidence that their attention was directed upwards to the upper flats. 

[18]      Further the evidence of the complainers that assaults took place on them by two males acting in concert was undisputed.  The complainers were able to give some description of the assailants by reference to the police statements which they adopted as the truth in their evidence.  They also gave evidence about what they saw on the CCTV footage.  We accept that there were gaps and some inconsistencies in the identification evidence by the complainers. 

[19]      In these appeals, there was undisputed evidence that the assaults on the complainers by two young males acting together took place shortly before 11.15 when the police attended.  Descriptions of the clothes, age, height, hair colour and build of the two males were given by the two complainers.  It was undisputed that the appellants were identified by various police witnesses as the two males on the CCTV at 22.20 hours and evidence was available about their descriptions and actings at that time.  In our opinion when that evidence is taken together, at its highest, there is an ample sufficiency to allow inferences to be made that the same two males identified on the CCTV as the appellants were the attackers of the complainers.  We have no difficulty therefor in concluding that the sheriff did not err in law in repelling the section 97 submission of no case to answer at the end of the Crown case and allowing the case to be considered by the jury.  The criticisms of the identification evidence which were made on behalf of the appellants, in our opinion, may be relevant to the weight and quality of the evidence but that was a matter for the jury to consider.

[20]      For these reasons, the appeals are refused.