Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 76

HCA/2015/003546/XC

Lord Justice Clerk

Drummond Young

Lady Clark of Calton

STATEMENT OF REASONS

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

OLU ALUKO

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Ogg; Capital Defence Lawyers

Respondent:   Prentice, QC, AD; Crown Agent

 

7 July 2016

Introduction

[1]        On 12 November 2015 at Dumbarton Sheriff Court the appellant was convicted by majority verdict of a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (charge 1) and a contravention of section 36(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (charge 2), both at Graham Drive, Milngavie.  Both offences were committed whilst the appellant was on bail.  The indictment also libelled a third charge which was a contravention of section 102A(1)(a) of the Criminal Procedure (Scotland) Act 1995 in respect of the appellant’s failure to appear at a sheriff and jury sitting on 22 April 2015.

[2]        At a first diet on 4 August 2015, the appellant pleaded guilty to charge 3 and not guilty to charges 1 and 2, in respect of which he tabled a special defence of alibi.  On 8 December 2015, he was sentenced to 20 months’ imprisonment on charges 1 and 2 and 4 months’ imprisonment on charge 3, consecutively to the sentence imposed on charges 1 and 2.  The court also made a supervised release order.

[3]        At the close of the Crown case, the sheriff heard a submission of no case to answer on the basis that there was insufficient corroboration of the identification of the appellant as the perpetrator of the offences libelled.  That submission was repelled, and the basis of this appeal is that the sheriff erred in repelling the no case to answer submission.

 

The evidence

[4]        Victoria Robertson was an eyewitness who gave the primary identification evidence against the appellant.  She was at home in Graham Drive, Milngavie on 17 May 2014.  She heard shouting and swearing from outside her house and looked outside.  She saw a group of people and another, a male, who appeared to be on his own, and whom she identified as the appellant.  In cross-examination, she rejected extensive challenges to her identification and maintained that she was 100% certain of it.  She introduced evidence that she had looked at a photo board in the course of the police investigation and identified the appellant, evidence confirmed by police officers.  She was asked whether she would use the word “rugged” to describe the person she identified. She did not recollect if she had used that word but it would be apt.  She was asked if she had given a description of the skin colour of the person she identified.  She could not remember if she had but she had probably described him as “mixed race”.

[5]        Another eyewitness, William McLaughlin, was unfit to give oral evidence at trial but his police statement had been admitted in evidence under section 259 of the 1995 Act, and was read to the jury by the officer who had taken it, PC McLeod.  The witness’s description of the perpetrator included a bald patch on the left side of the head, rugged and slim built with dark skin.  The appellant had a bald patch on the left side of his head and fitted with the witness McLaughlin’s description.

[6]        PC MacLeod was cross-examined on his own operational statement, in which he had used the word “scar” as opposed to “bald patch”, in referring to the given description.  He suggested that it might have been a scar or injury resulting in a bald patch but maintained that there had been a scar/bald patch on the appellant’s head.  The appellant’s hair was a lot longer in court than it had been when he had seen him in May 2014.  When he had seen the appellant on the day after the incident, there was, on the top left hand side of the appellant’s head, a small circular bald patch.

[7]        PC Daniel Docherty was on duty on 18 May 2014 and early in the morning of 19 May.  He interviewed a suspect from the incident and identified the appellant as that person.  The appellant’s appearance in court was changed in that he had a little more weight around his face and his hair was longer.  On the day of his interview, the appellant had a small bald patch on the left side of his head.

[8]        The basis of the appeal echoed the submission of no case to answer made to the sheriff.  It was accepted that the evidence of the witness Robertson required very little to corroborate it, but the evidence of the witness McLachlan was insufficient:  he had not made any positive identification; he had neither attended an identification parade nor made an identification from a photo board; and the perpetrator was unknown to the him.

[9]        Further, his description, aside from the reference to the bald patch, was vague and non-specific.  Although the reference to the bald patch was consistent with what the police observed on the day following the incident, there was no reference to the bald patch in the evidence of the principal witness Robertson.  What was required was that the evidence of the witness McLachlan should be consistent with the primary source of evidence, namely the witness Robertson (McCreadie v HM Advocate 2011 HCJAC 54, para. 8).  In the absence of consistency as to the bald patch with the primary source of evidence, the description was too vague to provide sufficient corroboration (McDonald v HM Advocate 1997 SLT 37).

 

Analysis

[10]      In repelling the submission that there was insufficient evidence identifying the appellant as the perpetrator, the sheriff indicated that the issue was not whether the descriptions of each eye witness tallied in all respects but whether they provided separate sources of evidence capable of being relied upon which confirmed the identification of the appellant as the perpetrator.  The sheriff concluded that the clear, and emphatic, eye witness identification the witness Robertson had given was capable of being supported by the account of the witness McLaughlin.  Since McLaughlin was an eyewitness, his account of the perpetrator having a bald patch on the left side of his head was evidence that was capable of being commented on by others who also saw the appellant at around the time of the offence, and commented on his having such a bald patch.  Both police officers who gave evidence were able to do that.

[11]      We have no doubt that the sheriff was correct in his approach, and that he was correct to repel the submission of no case to answer.  McLaughlin’s description of the perpetrator related to his apparent age, build, complexion and height.  His account of these characteristics accorded with the description given by the witness Robertson, and her eye witness identification.