APPEAL AGAINST CONVICTION BY FRANCIS MOONEY AGAINST HMA [2024] ScotHC HCJAC

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2024] HCJAC 1

HCA/2023/000241/XC

Lord Justice Clerk

Lord Doherty

Lord Boyd of Duncansby

OPINION OF THE COURT

delivered by LORD DOHERTY

Appeal against Conviction

FRANCIS MOONEY

Appellant

against

HIS MAJESTY'S ADVOCATE

Respondent

Appellant: G R Brown (sol adv); Paterson Bell, Edinburgh for Penmans Solicitors, Glasgow

Respondent: J Keenan, Sol Adv, KC, AD; the Crown Agent

_____________________

14 December 2023

Introduction

[1]

On 5 May 2023 at the High Court of Justiciary at Paisley the appellant was convicted

after trial of the following charge:

"on 24 September 2021 at Dunn Street, Glasgow you FRANCIS MOONEY did

purchase and have in your possession a firearm to which Section 1 of the Act

aftermentioned applies without holding a firearms certificate in force at the time, and

you did commit this offence in an aggravated form within the meaning of Section

4(4) of the said Act, the barrels of which had been shortened to a length less than

60.96 centimetres, (24 inches): CONTRARY to the Firearms Act 1968, section 1(1)(a)

and 4(4) as amended by the Firearms Amendment Act 1988."

The verdict was unanimous.

[2]

Two issues arise in this appeal. First, whether the trial judge was correct to repel a

submission of no case to answer. Second, whether the trial judge's charge contained a

material misdirection which resulted in a miscarriage of justice.

[3]

The appeal was heard on 14 December 2023. At the conclusion of the hearing the

court refused the appeal, indicating that reasons in writing would be provided in early

course. This opinion now provides the court's reasons.

[4]

It was common ground that there was sufficient evidence that the offence libelled

was committed by someone. However there was a dispute as to whether there was

corroborated evidence identifying the appellant as the perpetrator.

The trial

[5]

The appellant did not lodge a notice of incrimination, and it was not suggested on his

behalf during the trial that the offence had been committed by his companion, Stephen Kyle.

For the purposes of the appeal it is only necessary to narrate the following parts of the

evidence.

[6]

On the evening of 24 September 2021 the police had information which led them to

believe that a firearm was about to be transferred. Plain clothes police officers took up

position in parked unmarked police cars. The occupants of a car parked in Dunn Street

were Constable Dinnen and Sergeant Scrafton. Constable Paterson and Constable Glen were

in another car in a nearby street.

[7]

Constable Dinnen gave evidence that he was in the driver's seat of his car. The

appellant and Kyle arrived at Dunn Street in a taxi. They alighted and loitered for about

5 minutes as if waiting for someone. The appellant appeared to make a call and speak on his

mobile phone. He sat on a rail. Derek Eadie emerged from a nearby house and joined the

appellant and Kyle. Eadie passed a bag containing a firearm and ammunition to the

appellant which the appellant placed on the ground. Eadie and the appellant then shook

hands or passed something between them. Constable Dinnen and Sergeant Scrafton drove

towards the men and got out of their car to apprehend them. They were swiftly followed by

the car containing Constable Paterson and Constable Glen. Eadie ran away but the

appellant and Kyle remained. Constable Dinnen brought the appellant to the ground and

Sergeant Scrafton brought Kyle to the ground. Constable Dinnen detained the appellant.

The appellant's phone was seized. At London Road Police Office Constable Dinnen

obtained a DNA sample from the appellant and he cautioned and charged him. Later he

visited him in the cells and the appellant provided him with the PIN number for his phone.

Constable Dinnen was clear that it had been the same man who took the bag, was taken to

the ground by him, was apprehended by him, and was processed by him at the police office,

and that that man was the appellant.

[8]

There was CCTV footage which showed the events which Constable Dinnen

described. The man who took the bag appeared to be wearing a gilet. He had a cap on his

head. The other man who had arrived by taxi was bare-headed. The bare-headed man

faced the camera more often than his companion. The footage was filmed at night and there

was good street lighting but it was common ground that the quality of the footage was

insufficient to enable the jury to identify the appellant as the perpetrator by comparing the

footage of the man who took the bag from Eadie with the appellant's appearance in court. It

was clear from the footage that it had been the police officer who emerged from the driver's

door of Constable Dinnen's car who apprehended the man wearing the gilet and the cap.

[9]

Constable Paterson also gave evidence. He confirmed that Constable Dinnen's car

was the first to reach the men and that Constable Dinnen had been the driver. Constable

Paterson saw the appellant, Kyle and Eadie standing together in Dunn Street. He chased

after Eadie when he ran away, apprehending him a short distance away. He identified the

appellant as one of the other two men. At the police office he cautioned, charged and

processed Kyle.

[10]

Constable Dinnen's identification of the appellant was not challenged during cross-

examination. Nor was Constable Paterson's identification of the appellant as one of the two

men who remained when Eadie left. It was put to Constable Paterson that his view of the

three men standing together was "somewhat obscured by the car in front of you", to which

he responded that the vehicles were almost side by side and he had "quite a clear line of

sight of the males in front of me".

[11]

At the close of the Crown case the solicitor advocate for the appellant made a no case

to answer submission. It was submitted that there was insufficient evidence to corroborate

Constable Dinnen's identification of the appellant as the perpetrator. The trial judge

repelled the submission. No defence evidence was led.

[12]

The trial judge directed the jury that the Crown sought to prove the charge by a

combination of direct and circumstantial evidence. She reminded them that the evidence

consisted of the facts contained in a joint minute, CCTV footage, photographs, and the

witnesses' testimonies. In relation to the CCTV footage she stated:

"You may think there are three aspects to what you might draw from the recording.

What is happening in the recording, who is shown in the recording and what

inferences might you be prepared to draw from what you are satisfied you see

people doing... [Y]ou can take into account in determining the facts what you

consider to be shown in the images. You can have regard to images when deciding

who did what. You can make up your own mind about what could be seen and

what happened in the recording and what you could deduce from the recordings

(sic) which you saw when considering it along with the other evidence in the case...

[Y]ou are entitled to form your own conclusions about the recordings (sic) if it is of

sufficient quality to make out what can be seen with sufficient clarity. It's also open

to you to conclude that the quality of the images is such in particular instances that

nobody could make out what was going on or who was depicted. Now in this case I

must direct you that the quality of the CCTV footage is not sufficient to allow you to

make an identification for yourselves of the accused simply by making a comparison

between his appearance in court and the figures on the recording. But you are

allowed to draw inferences from the evidence as a whole when considering the

CCTV footage, considering other evidence and any inferences drawn from it could

permit you to reach your own conclusions about who and what is shown in the

recordings (sic) by inference. As I understand it the Crown relies upon the direct

evidence of Police Constable Dinnen given yesterday which may identify the accused

as the person to whom the bag was given by Derek Eadie. And if you accept PC

Dinnen's evidence as identification of the accused as that person the Crown

thereafter relies upon the identification by Police Constable Paterson ... of the

accused as one of the two who remained at the scene. And the Crown relies upon

the CCTV footage in so far as it may provide support for or confirmation of or fits

with PC Dinnen's evidence about the identification of the accused as it may show the

accused in a certain position or location. It may show the accused as the man using

his mobile telephone before Derek Eadie appeared or being the man put to the

ground by ... Police Constable Dinnen."

The appeal

[13]

The first ground of appeal is that the trial judge was wrong to repel the no case to

answer submission. Mr Brown accepted that since Constable Dinnen's identification of the

appellant had been clear and unequivocal, little was needed to corroborate it (Ralston v

HM Advocate 1987 SCCR 467). However, it was submitted that the only other evidence

which went to identification was Constable Paterson's identification of the appellant as one

of the two men who remained when Eadie ran off. That piece of evidence was insufficient to

corroborate identification because it did not identify the appellant as the perpetrator. All

that it did was confirm that he had been one of the two men who met with Eadie. It did not

distinguish between the man who received the bag and the other man. That was critical,

because only the man who received the bag had been a perpetrator. The Advocate-depute

submitted that not much was needed to corroborate Constable Dinnen's clear and

unequivocal identification (Ralston). In assessing sufficiency, and whether evidence is

capable of affording corroboration, the correct approach was to take the evidence at its

highest and for circumstantial evidence to be interpreted in the way most favourable to the

Crown (Mitchell v HM Advocate 2008 SCCR 469 at [106]). Corroborative evidence need not

be more consistent with guilt than innocence. All that was required for corroboration was

evidence which provided support for, or confirmation of, or fitted with the main source of

evidence. It was then for the jury to decide if it did provide corroboration (Lord Advocate's

Reference (No.1 of 2023) [2023] HCJAC 40, 2023 SLT 1115, 2023 SCCR 340, at [220] approving

Fox v H M Advocate 1998 JC 94). Constable Paterson's evidence and the footage provided

sufficient corroboration. An example of an aspect of the footage which supported Constable

Dinnen's identification evidence was that it showed that the driver of the first car was the

person who brought the perpetrator (the man who took the bag from Eadie) to the ground.

[14]

The second ground of appeal is that the trial judge misdirected the jury when she

directed them that they could use the CCTV evidence to corroborate Constable Dinnen's

identification of the appellant. Mr Brown submitted that the misdirection was contained in

the two sentences:

"And the Crown relies upon the CCTV footage in so far as it may provide support

for or confirmation of or fits with PC Dinnen's evidence about the identification of

the accused as it may show the accused in a certain position or location. It may show

the accused as the man using his mobile telephone before Derek Eadie appeared or

being the man put to the ground by ... Police Constable Dinnen."

No exception was taken to the remainder of the charge. The two sentences were a

misdirection because the judge had directed the jury that the quality of the footage was not

sufficient to allow them to make an identification for themselves of the accused simply by

making a comparison between his appearance in court and the figures in the footage. It

followed that there was nothing in the footage which they could use to corroborate

Constable Dinnen's identification. The examples which the judge gave were evidence that a

crime was committed but they were not evidence that the appellant was the perpetrator. In

reply the Advocate-depute submitted that the judge had not erred in suggesting that the

footage taken together with Constable Paterson's evidence might provide sufficient

corroboration of Constable Dinnen's identification evidence. There had been no

misdirection, and no miscarriage of justice.

Decision and reasons

[15]

We begin with the first ground of appeal.

[16]

The provenance of the CCTV footage was agreed by joint minute. Its content was

proof of fact of the events shown in it. It was real evidence which itself was sufficient proof

of the inferences of fact which might reasonably be drawn from a viewing of its contents

(Gubinas v HM Advocate 2018 JC 45; Shuttleton v Orr 2019 JC 98). The jury was also entitled

to consider whether, looking at the footage and other evidence which they accepted,

reasonable inferences might be drawn as to whether the crime charged was committed and

who the perpetrator was.

[17]

We are mindful that in assessing sufficiency and whether evidence is capable of

affording corroboration the correct approach is to take the evidence at its highest, and for

circumstantial evidence to be interpreted in the way most favourable to the Crown (Mitchell

v HM Advocate 2008 SCCR 469 at [106]); and that where a witness makes a clear and

unequivocal identification little is needed to corroborate that evidence (Ralston v

HM Advocate 1987 SCCR 467).

[18]

Here, Constable Dinnen gave clear and unequivocal evidence identifying the

appellant as the perpetrator. Not much was needed to corroborate that evidence. The

question is whether, taken together, the evidence of Constable Paterson and the CCTV

footage could provide the required corroboration.

[19]

Constable Paterson spoke to the appellant being one of the two men left when Eadie

ran off. He indicated that Constable Dinnen rather than Sergeant Grafton had been the

driver of their police car. Finally, he confirmed that when they got to the police office he

cautioned and charged and processed Kyle.

[20]

The CCTV footage showed that it was the man wearing the gilet and cap who used

his telephone, who took the bag from Eadie, and who was apprehended by the driver of

Constable Dinnen's police car. In short, it showed that that man was the perpetrator and

that the driver had brought him to the ground.

[21]

Corroborative evidence need not be more consistent with guilt than innocence. All

that is required for corroboration is evidence which provides support for, or confirmation of,

or fits with the main source of evidence. It is then for the jury to decide if it does provide

corroboration (Lord Advocate's Reference No 1 of 2023 [2023] HCJAC 40, 2023 SLT 1115, 2023

SCCR 340, at [220] approving Fox v H M Advocate 1998 JC 94). Taking the combination of

Constable Paterson's evidence and the CCTV footage at its highest, as we require to, we are

in no doubt that it was capable of providing corroboration of Constable Dinnen's

identification of the appellant. It was capable of providing support for, or confirmation of,

or fitting with Constable Dinnen's identification. It put the appellant at the scene as one of

only two men with Eadie when the bag was handed over. It confirmed that Constable

Dinnen had been the driver of his police car, and that he had been the man who had tackled

the perpetrator. Moreover, Constable Paterson's evidence that he cautioned and charged

and processed Kyle at the police office fitted with Constable Dinnen's evidence that the

person he brought to the ground and dealt with at the police office was the appellant. It

follows that the trial judge was correct to repel the submission of no case to answer.

[22]

We turn to the second ground of appeal. We are satisfied that the trial judge's charge

did not contain any material misdirection. Mr Brown accepted, correctly, that, leaving aside

the final two sentences, the directions we referred to in paragraph [12] above contained no

misdirection. We are also satisfied that, read in context, the final two sentences were not a

misdirection. The footage showed that the man wearing a gilet and cap who spoke on his

phone and sat on the rail was the man who took the bag, and that the driver of the first

police car was the person who took him to the ground. The combined effect of Constable

Paterson's evidence and the footage was capable of providing support for, or confirmation

of, and it fitted with, Constable Dinnen's identification evidence.

[23]

Neither ground of appeal is well-founded. There has not been a miscarriage of

justice. The appeal is refused.

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