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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gonshaw v. Procurator Fiscal [2004] ScotHC 42 (25 June 2004)
URL: http://www.bailii.org/scot/cases/ScotHC/2004/42.html
Cite as: [2004] ScotHC 42

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Gonshaw v. Procurator Fiscal [2004] ScotHC 42 (25 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Macfadyen

Lord Abernethy

 

 

 

 

 

 

 

 

 

 

Appeal No: XJ278/02

OPINION OF LORD OSBORNE

in

NOTE OF APPEAL AGAINST CONVICTION

by

MATTHEW GONSHAW

Appellant;

against

PROCURATOR FISCAL, Lochmaddy

Respondent:

_______

 

 

Appellant: Wheatley, Solicitor Advocate; Anderson Macarthur & Co, Portree

Respondent: Stewart, A.D.; Crown Agent

25 June 2004

 [1]      The appellant was charged on a summary complaint at the instance of the respondent with three charges under the Wildlife and Countryside Act 1981 and a further common law charge, with which this opinion is not directly concerned. The appellant was in fact acquitted on the first of the statutory charges, but convicted on the other two. The appeal related, in the first instance, to the conviction of the appellant on those two charges, which were charges (2) and (3) in the complaint. The terms of the charges on which the appellant was convicted were as follows:

"(2) on 7 April 2001 at South Uist, Western Isles, you Matthew Gonshaw did intentionally disturb of (sic) a wild bird included in Schedule 1 to the Act aftermentioned, namely Aquila Chrysaetos (otherwise known as a Golden Eagle) whilst it was building a nest or in, on, or near a nest containing eggs or young; contrary to the Wildlife and Countryside Act 1981, section 1(5)(a);

(3) on 9 April 2001 at Howmore, South Uist, Western Isles you Matthew Gonshaw did, for the purposes of committing an offence under Part 1 of the Wildlife and Countryside Act 1981, have in your possession an article capable of being used for committing the offence under section 1(1)(c) and section 1(5)(a) of said Act (taking or destroying the egg of a wild bird), namely a Rope, Binoculars, Maps, contrary to the Wildlife and Countryside Act 1981 section 18(2)."

 [2]      At the trial of the appellant before the sheriff at Lochmaddy on 27 and 28 November 2001, at the close of the prosecution case, the solicitor for the appellant made a submission, in terms of section 160 of the Criminal Procedure (Scotland) Act 1995, as amended, that there was no case to answer. The sheriff heard the parties in relation to this submission, which he then repelled. Following that, the appellant led evidence, after which he was convicted in the terms indicated. He himself gave evidence, in which he admitted that he had been the person to whom a Crown witness, Paul Boyer, mentioned later in this Opinion, had spoken. He was fined £500 in respect of charge (2) and £150 in respect of charge (3).

[3]      Thereafter the appellant made an application for a stated case under section 176(1) of the 1995 Act, indicating a number of grounds upon which he desired to bring his conviction on charges (2) and (3) of the complaint under review. Leave to appeal to this court was granted only upon a limited basis. In particular, it was limited to the matters set forth in paragraph 2(a)(ii) of the application for the stated case. Paragraph 2(a)(ii) was in these terms:

"There was insufficient evidence as to the identity of the accused. Identification in respect of charge (2) coming from Paul Boyer only. Mr. Boyer confirmed that he had had a discussion with the accused. Three other civilian witnesses spoke to being on the hillside and observing Mr. Boyer talk to someone at a distance of about 1 kilometre away. Gwen Evans spoke of a fit looking man taller than herself, she being 5' 4", wearing green coloured clothing, but no other evidence was adduced to tie her description to the accused. Two police officers also gave evidence in the case but that related to identification in respect of charge (4) only."

In granting the limited leave to appeal referred to, the court stated:

"The sheriff rejected the no case to answer submission on charge (2) on the basis that one of the Crown witnesses, Boyce, (sic) identified the appellant and that the other witness (sic) saw Boyce (sic) speaking to a man who was alone at the material time, but who could not otherwise identify that person. Contrary to the sheriff's view that there was 'sufficient identification', there was thus no corroboration of Boyce's (sic) identification. This raises sharply the question whether the sheriff was then entitled to reject the submission where the Crown had not corroborated an essential element of the Crown case. This appeal is accordingly allowed, restricted only to the ground of appeal stated in paragraph 2(a)(ii) of the matters sought to be brought under review."

 [4]      The sheriff has provided us with a narrative of the evidence adduced by the Crown at pages 4 to 9 of the stated case, to which I refer. Thereafter he narrates the basis upon which the submission of no case to answer was made. That included certain matters with which I do not now require to be concerned. However, part of the submission was to the effect that there was insufficient identification of the appellant. The sheriff deals with that aspect of the submission of no case to answer at page 10 of the stated case, where he says this:

"As regards identification, Mr. Boyer positively identified the appellant. Two other witnesses, Mr. Stevenson and Miss Evans spoke to Mr. Boyer speaking to the person they had seen in the glen and at the nest. The evidence was that the person was on his own. There was no evidence that any other person apart form this person was in the glen at the material time. I was of the view that this constituted sufficient identification of the appellant as the person seen by the witnesses at the bottom of the glen and at the nest site."

 [5]      It should be recorded that this appeal was the subject of a hearing before this court on 17 December 2003, when the court continued the appeal on a joint motion, in respect that it was considered that the case raised sharply the question foreseen by the Lord Justice General in the case of Little v. H.M. Advocate 1983 J.C. 16, on which the court desired to hear a full argument.

[6]      When the appeal came before us, due to an administrative failure, insufficient time had been allotted to the case to enable the full argument contemplated as necessary by the court on 17 December 2003 to take place. Accordingly, before considering any aspect of the merits of the appeal, we heard submissions relating to what might be the appropriate procedure in the appeal. In the light of those submissions and of the impossibility of hearing all issues in the case in the time allotted to it when it came before us, we decided to hear submissions only upon the issue of whether the sheriff had erred in repelling the submission of no case to answer. It was recognised that, if it were decided that the sheriff had not erred, that would dispose of the case. If it were decided that he had erred in that respect, then it would be necessary for there to be a fresh diet, sufficient in length to enable the issue foreseen by the Lord Justice General in Little v. H.M. Advocate to be fully ventilated. Accordingly, this opinion is concerned only with the issue of the sheriff's decision on the merits of the submission of no case to answer.

[7]      Mr. Wheatley, for the appellant, began his submissions by pointing out that the question was whether there had been sufficient evidence of identification of the appellant, in relation to the offence to which charge (2) related. There had been clear evidence from one witness, Paul Boyer, identifying the appellant. Thus, the question was whether there had been corroboration from other witnesses of that identification. The sheriff, at page 10 of the stated case, had relied upon the evidence of two other witnesses, a Mr. Stevenson and a Miss Evans, who spoke to Mr. Boyer speaking to the person that they had seen in the glen and at the nest. However, they had not been in a position to identify the appellant as that person in court. The decision of the sheriff in relation to this matter appeared to have proceeded upon the basis that there had been no evidence that any other person, apart from the person seen by these witnesses, was in the glen at the material time. That did not amount to a positive finding that no other persons were in the glen at the material time. Corroboration could not be derived from the absence of evidence. Thus there had been before the sheriff only one source of evidence which identified the appellant, namely the evidence of Mr. Boyer. It was thus plain that the basis stated by the sheriff for repelling the submission of no case to answer was unsound.

[8]      However, Mr. Wheatley recognised that there had been certain other evidence in the case which required to be considered in the context as amounting to a possible source of corroboration of the evidence of Mr. Boyer. That evidence was described at page 8 of the stated case. On 9 April 2001, two days after the offence to which charge (2) related had been committed, police constables Graeme Murdoch and Christopher Macrae, acting on information received, had gone to the Howmore Hostel, South Uist, and had met the appellant. He had been cautioned at common law and searched under section 19 of the Wildlife and Countryside Act 1981. He was found to have been in possession of a rucksack in which were found a nylon climbing rope with knots, binoculars, Ordnance Survey maps and other items, which he had said belonged to him. One of the maps was a map of Daliburgh, South Uist, and had had certain markings on it.

[9]      Mr. Wheatley submitted to us that that material was insufficient to provide corroboration of the evidence of Mr. Boyer. Had there been some peculiar features of these items, which enabled them to be linked to the person seen in the glen by Mr. Stevenson and Miss Evans, the position might well have been different. As regards the markings on the map, there was no finding by the sheriff as to their nature or location. In any event, other Ordnance Survey maps than that of Daliburgh had been found. In short, nothing found by the police officers on 9 April 2001 could be related to anything seen in the glen on 7 April 2001. The police witnesses mentioned had also given evidence to the effect that initially the appellant had given a false name and address to them, which he later retracted. However, that circumstance could not provide corroboration in relation to the matter under consideration.

[10]      The Advocate depute, on behalf of the respondent, submitted that the sheriff had reached the correct decision in relation to the submission of no case to answer, albeit for erroneous reasons. The starting point of the consideration was that Paul Boyer had identified the appellant in connection with the offence to which charge (2) related. Although the witnesses Stevenson and Evans had seen Boyer speaking to a person, the only source of identification was the evidence of Boyer, which alone was insufficient. The Advocate depute indicated that the Crown relied for corroboration on several circumstances. First, the appellant had been in a remote area of South Uist. He had been found living in a hostel there two days after the offence, having come from London. Secondly, he had been found to have been in possession of an Ordnance Survey map of the area of Daliburgh, which included the locus. Thirdly, the witness Stevenson had described the person seen by him as male and as having been in possession of binoculars. Fourthly, the witness Evans had said that the person had been a male, had been in possession of binoculars and also a rucksack. Fifthly, on 9 April 2001 the police witnesses had found the appellant in the Howmore Hostel in South Uist in possession of binoculars and a rucksack. Sixthly, the appellant had initially given a false name to the police after having been cautioned and searched. Seventhly, the house of the appellant in London had been searched, in which a number of items listed at page 9 of the stated case had been found, including a book on birds of prey, with a marker at the entry on Golden Eagles and their nests. It was submitted that these circumstances, in combination, provided corroboration for the evidence of Mr. Boyer.

[11]      The Advocate depute then went on to refer to the law which he contended should be applied to the case. He began by referring to Ralston v. H.M. Advocate 1987 S.C.C.R. 467, in which it had been held that, where one starts with an emphatic positive identification by one witness, very little else was required provided that that little else was consistent in all respect with the positive identification evidence. Next he relied upon Fox v. H.M. Advocate 1998 S.C.C.R. 115, a decision by a bench of five judges. In that case it had been held that corroborative evidence required to be evidence which supported or confirmed the direct evidence of a witness, coming from an independent source. It was not the law that circumstantial evidence was corroborative only if it was more consistent with the direct evidence for the Crown than with a competing account given by the accused. Reliance was also placed on Proctor v. Tudhope 1985 S.C.C.R. 39 and Gracie v. Allan 1987 S.C.C.R. 364. In relation to the circumstance that the appellant had initially given a false name to the police, reliance was placed upon Winter v. Heywood 1995 S.C.C.R. 276 and Bovill v. H.M. Advocate 2003 S.C.C.R. 182, although it had to be recognised that certain misgivings had been expressed concerning the former case and it had to be recognised that it related to the creation of a false alibi, as opposed to the giving of a false name.

[12]      Before coming to consider the evidence upon which the respondent relies as corroboration of the evidence of Paul Boyer, it is appropriate for me to explain the criterion which I consider ought to be applied to that material. In my opinion Fox v. H.M. Advocate provides the most authoritative exposition of the nature of corroborative evidence now available. In that case, at page 126 the Lord Justice General stated:

"Corroborative evidence is still said to be evidence which supports or confirms the direct evidence of a witness. See Smith v. Lees at page 155D. The way in which the matter has been formulated in these authorities in itself tells us something about how our law perceives corroboration as operating in such cases. The law might have been, for instance, that a jury could not accept a direct witness as credible unless there were independent evidence supporting that witness. But that is not how the matter is approached in these passages. Rather, the starting point is that the jury have accepted the evidence of the direct witness as credible and reliable. The law requires that even when they have reached that stage, they must still find confirmation of the direct evidence from other independent direct or circumstantial evidence. Unless they find that confirmation, the jury must acquit the accused even though they may be completed convinced by the direct evidence of a single witness ... While evidence can provide corroboration only if it is independent of the direct evidence which it is to corroborate, the evidence is properly described as being corroborative because of its relation to the direct evidence: it is corroborative because it confirms or supports the direct evidence. The starting point is the direct evidence. So long as the circumstantial evidence is independent and confirms or supports the direct evidence on the crucial facts, it provides corroboration and the requirements of legal proof are met."

It was recognised by the Lord Justice General in that case, at page 126, that:

" ... it is of the very nature of circumstantial evidence that it may be open to more than one interpretation and that it is precisely the role of the jury to decide which interpretation to adopt. If the jury choose an interpretation which fits with the direct evidence, then in their view - which is the one that matters - the circumstantial evidence confirms or supports the direct evidence so that the requirements of legal proof are met. If on the other hand they choose a different interpretation, which does not fit with the direct evidence, the circumstantial evidence will not confirm or support the direct evidence and the jury will conclude that the Crown have not proved their case to the required standard."

 [13]      It appears to me, having regard to the foregoing observations, that where what is under consideration is a submission of no case to answer, the question for the court is whether the material relied upon as corroboration is capable of confirming or supporting the direct evidence on the crucial facts. Whether it ultimately does confirm or support that evidence must be a matter for the tribunal of fact which ultimately makes the decision as to guilt or innocence, provided that the case proceeds to that stage. Following this approach, I now consider the material which was relied upon by the Crown as corroboration in this case. I should make clear that both parties to the appeal took the view that the basis which the sheriff gave for his decision was unsound, a view with which I myself agree.

[14]      As regards the matters first relied upon by the Crown, it appears to me that they are incapable of confirming or supporting the evidence of Paul Boyer. Mere presence in the island of South Uist two days after the commission of the offence and having an address in London appears to me quite incapable of providing corroboration of Paul Boyer's evidence of identification. It appears to me that that evidence bears no relationship to that direct evidence. My view as regards the second circumstance relied upon by the Crown is the same. Presence in South Uist, together with the possession of a number of Ordnance Survey maps, appears to me again to have no relationship to the direct evidence relied upon. As regards the third, fourth and fifth circumstances relied upon by the Crown as corroboration, which it appears to me must be considered together, I am not persuaded that that material has the effect contended for by the respondent. What is being considered is the possession by the appellant, a male person, of binoculars and a rucksack in the hostel two days following the commission of the offence, items of a kind that had been seen in the possession of the male person in the glen by the witnesses Stevenson and Evans. In my view, having regard to the utterly commonplace nature of these items in a remote rural context, I consider that they can perform no corroborative function here. As regards the giving by the appellant of a false name following upon being cautioned and searched in the hostel, I am unable to conclude that that circumstance is capable of possessing corroborative effect, particularly in the absence of any finding about what was said by the police officers concerning the nature of their enquiries at the time when they cautioned and searched the appellant. Finally, I am not persuaded that the items found in the appellant's house in London possess any corroborative effect in the context. Those items, at best, might demonstrate an interest in certain birds, quite a common enthusiasm. It appears to me that more than that is required to confirm or support the direct evidence of Paul Boyer's identification of the appellant as the person involved in the commission of the offence. While I have dealt with these pieces of evidence individually, the Crown's argument was that it was in combination that they were capable of providing corroboration of the direct evidence of Paul Boyer. Having regard to the nature of the material founded upon, I remain unpersuaded that that is so. It appears to me that there is simply no discernible relation between that material and the direct evidence, to enable it to furnish the necessary confirmation or support.

[15]      In these circumstances I have reached the conclusion that question (1) in the stated case must be answered in the negative. At this stage, I consider that it is impossible for the court to answer question (2), since the answer to it depends upon the resolution of the issue to which I referred at the outset of this Opinion, for which purpose a further hearing of appropriate length will be required.

Gonshaw v. Procurator Fiscal [2004] ScotHC 42 (25 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Macfadyen

Lord Abernethy

 

 

 

 

 

 

 

 

 

Appeal No: XJ278/02

OPINION OF LORD MACFADYEN

in

NOTE OF APPEAL AGAINST CONVICTION

by

MATTHEW GONSHAW

Appellant;

against

PROCURATOR FISCAL, Lochmaddy

Respondent:

_______

 

 

Appellant: Wheatley, Solicitor Advocate; Anderson Macarthur & Co, Portree

Respondent: Stewart, A.D.; Crown Agent

 

25 June 2004.

[16]      On 28 November 2001 the appellant, Matthew Gonshaw, was convicted by the sheriff at Lochmaddy of inter alia a contravention of section 2(5)(a) of the Wildlife and Countryside Act 1981 ("the 1981 Act"). The libel was that he intentionally disturbed a golden eagle whilst it was building a nest or in, on or near a nest containing eggs or young. In the course of the trial, at the conclusion of the Crown case, the sheriff rejected the appellant's submission that he had no case to answer in respect of that charge. One of the questions posed by the sheriff in the stated case for the opinion of this court is in the following terms:

"In light of the evidence led for the Crown was I entitled to reject the submission of no case to answer?"

 [17]      Before us, it was recognised that if that question were answered in the affirmative the appeal would fall to be refused. If, on the other hand, that question were answered in the negative, that would not dispose of the appeal. That is because, after the rejection of the submission of no case to answer, the appellant gave evidence which cured the alleged insufficiency in the evidence led by the Crown. In that situation, it would be necessary to consider whether in the circumstances the erroneous rejection of that submission constituted or resulted in a miscarriage of justice (see section 175(5) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act")). It was agreed that at this stage the court would hear argument only on the question quoted above, leaving the subsequent issue, if it arose, to be addressed at a further hearing.

[18]      The alleged insufficiency in the evidence led by the Crown related to the identification of the appellant as the person who had been seen by four Crown witnesses disturbing the eagles' nest. One of these four witnesses, Paul Boyer, having seen from a distance a person in the close vicinity of the crag where the eagles' nest was situated, went down the hill and spoke to that person. He identified the appellant as the person he had initially seen from a distance, and had later spoken to. It was not disputed that Mr Boyer thus provided one source of evidence unequivocally identifying the appellant as the perpetrator of the offence. The submission, before the sheriff and before us, was that there was no evidence capable of constituting corroboration of Mr Boyer's evidence identifying the appellant as the perpetrator.

[19]      It appears from the sheriff's report (at page 10) that he found corroboration of Mr Boyer's evidence identifying the appellant as the perpetrator in the evidence of two of his companions, Mr Stevenson and Miss Evans. As the sheriff puts it:

"[they] spoke to [seeing] Mr Boyer speaking to the person they had seen in the glen and at the nest. The evidence was that the person was on his own. There was no evidence that any other person apart from this person was in the glen at the material time. I was of the view that this constituted sufficient identification of the Appellant as the person seen by the witnesses at the bottom of the glen and at the nest site."

 [20]      In my opinion, the sheriff erred in finding corroboration of Mr Boyer's identification of the appellant in that material. In the first place, the evidence of Mr Stevenson and Miss Evans that the person seen near the nest was the same person as was spoken to by Mr Boyer cannot be regarded as providing confirmation that the person seen near the nest and spoken to by Mr Boyer was the appellant. Secondly, the absence of evidence that anyone else was in the glen at the material time is not tantamount to evidence that there was no one else present in the glen at the material time. I am therefore unable to accept as sound the basis on which the sheriff proceeded in rejecting the submission that there was insufficient evidence identifying the appellant as the perpetrator of the offence.

[21]      The question for this court is not, however, to be answered exclusively by reference to the sheriff's reasoning. It requires consideration of all the evidential material available at the close of the Crown case. If that material as a whole is capable of being regarded as corroborative of Mr Boyer's evidence of identification, the question will fall to be answered in the affirmative, even if the sheriff's reasons for finding a sufficiency of evidence are flawed.

[22]      Before I consider the other material founded on by the Crown as justifying rejection of the submission of no case to answer, it is convenient to put the issue in context. In terms of section 160(1) of the 1995 Act a submission of no case to answer falls to be made immediately after the close of the Crown case. Subsection (2) provides:

"If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made ... he shall acquit him of the offence ...".

That section, which applies to summary procedure, is in terms which, mutatis mutandis, are identical to those of section 97(2), which applies to solemn procedure. As was noted in Williamson v Withers 1981 SCCR 214 at 217:

"the question is not whether the evidence presented is to be accepted and therefore the only question before the court at that stage is whether there is no evidence which if accepted will entitle the court to proceed to conviction. ... The question then is whether if [the principal witness's] evidence were to be accepted was there to be found in the other evidence led on behalf of the prosecution adminicles of evidence independent of [him] which could corroborate his testimony. The weight to be given them of course is an entirely different matter."

 [23]      As was confirmed in Fox v HM Advocate 1998 SCCR 115, per Lord Justice General Rodger at 126A:

"Corroborative evidence is ... evidence which supports or confirms the direct evidence of a witness".

At 128F the Lord Justice General added:

"At the stage when the court required to consider whether the Crown had led evidence which would entitle the jury to convict the accused, in my view the appropriate question for the court to ask was indeed whether there was independent evidence which was capable of supporting the direct evidence. To demand anything more than that is to encroach upon the jury's role as the master of all matters of fact."

On the same subject, Lord Justice Clerk Cullen said (at 135C-D):

"Where the prosecutor relies upon circumstantial evidence as supporting or confirming the evidence given by a direct witness as to the factum probandum, it is for the jury to decide whether they accept the circumstantial evidence and, if so, whether it does in fact provide the corroboration for which the prosecutor contends. How they go about their task and what significance or weight they attach to the evidence are, of course, matters exclusively for them to decide. It is, on the other hand, for the court to decide whether there is evidence which, if accepted, is capable of providing corroboration. ... It is important that the court should not encroach on the province of the jury by substituting its own assessment of the corroborative effect of the circumstantial evidence."

 [24]      It seems to me to follow from the correspondence of the terms of section 160(2) with those of section 97(2) that the task of the sheriff dealing with a submission of no case to answer in summary proceedings is identical with that of the presiding judge or sheriff dealing with such a submission in solemn proceedings. The sheriff in summary proceedings should not, merely because he will in due course if the case proceeds have to address the issues of fact raised by the evidence, allow himself to approach the question of sufficiency differently from the way in which he would be obliged to approach it if he were sitting with a jury. He should not anticipate the role, which will fall to him later if the submission is rejected, of tribunal of fact. I am therefore of opinion that the warnings against going beyond the proper scope of the issue raised by a submission of no case to answer expressed by the Lord Justice General and the Lord Justice Clerk in Fox apply with as much force in summary proceedings as they do in solemn proceedings. The issue for the sheriff in summary proceedings is whether the circumstantial evidence is capable of being regarded as supporting or confirming the direct evidence. The questions of the weight and significance to be accorded to the circumstantial evidence, and therefore whether it is accepted as actually providing the necessary support for or confirmation of the direct evidence, ought to be deferred, and addressed only after all the evidence in the case has been led.

[25]      It is on that basis that I turn to consider the circumstantial evidence founded on by the Crown as justifying rejection of the motion of no case to answer. The adminicles founded on by the Crown in the course of the hearing of the appeal may be summarised as follows:

    1. The appellant, whose home address was in London, was found by the police, two days after Mr Boyer's sighting of him at the eagles' nest in the glen below Ben Mhor on South Uist, in a hostel at Howmore, South Uist.
    2. When seen by the police the appellant was in possession of an ordnance survey map of the Daliburgh area of South Uist with (unspecified) marks on it.
    3. He was also found to be in possession of binoculars and a rucksack, items of equipment said by Mr Stevenson and Miss Evans to have been possessed by the person whom they saw disturbing the eagles' nest.
    4. At that stage, having been cautioned and searched under section 19 of the 1981 Act, he gave a false name to the police.
    5. Items found the next day at the appellant's London address included various items relating to bird-watching, and in particular a book (Brown's Birds of Prey) with a marker at the entry on golden eagles and their nests.
[26]      In my opinion it cannot be said that that accumulation of circumstantial evidence is incapable of confirming or supporting Mr Boyer's evidence that the appellant was the person who was involved in disturbing the eagles' nest. No doubt each adminicle, or at least some of them, if viewed alone, might be regarded as falling short of supporting the identification. It is not, however, in my view appropriate to assess separately the capability of each adminicle of supporting or confirming the identification. The proper approach is to take the body of circumstantial evidence as a whole and ask whether it is capable of affording such support or confirmation. Equally, it is no doubt possible to figure further details which would have made the confirmatory effect of the evidence much stronger, for example if the appellant's rucksack had been of a distinctive colour spoken to by Mr Stevenson or Miss Evans, or if the ordnance survey map had born a mark identifying the particular crag where the eagles' nest was situated. But the fact that the evidence could have been stronger in various ways does not mean that, as it stands, it is incapable of affording corroboration of Mr Boyer's identification of the appellant. Moreover, as Lord Coulsfield pointed out in Fox at 143C and F, it is not essential that the circumstances relied on as providing corroboration should be incriminating in themselves. In taking the view that the circumstantial evidence founded on is capable of affording corroboration, I regard it as appropriate to refrain from considering what weight or significance I would have attached to it if the issue had been whether, assuming the absence of the appellant's admission of his presence at the locus, it had been proved beyond reasonable doubt by the end of the trial that the appellant was the perpetrator of the offence.

[27]      In the result, therefore, I am of opinion that the sheriff was right to reject the submission of no case to answer, albeit not for the reasons that he gave. I would therefore answer the questions in the stated case in the affirmative, and refuse the appeal.

Gonshaw v. Procurator Fiscal [2004] ScotHC 42 (25 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Macfadyen

Lord Abernethy

 

 

 

 

 

 

 

 

 

 

Appeal No: XJ278/02

OPINION OF LORD ABERNETHY

in

NOTE OF APPEAL AGAINST CONVICTION

by

MATTHEW GONSHAW

Appellant;

against

PROCURATOR FISCAL, Lochmaddy

Respondent:

_______

 

 

Appellant: Wheatley, Solicitor Advocate; Anderson Macarthur & Co, Portree

Respondent: Stewart, A.D.; Crown Agent

25 June 2004

 [28]      The principal Crown witness in this case, Paul Boyer, gave evidence that on the date and at the place libelled in charge 2 he saw a man whom he thought was acting suspiciously in relation to a golden eagle's nest. He went to investigate and spoke to the man. He identified the man as the appellant. The issue in this appeal is whether there is other evidence in the case which could provide corroboration for that identification and therefore a sufficiency of evidence on which it could be held proved that the appellant was the man in question.

[29]      That is, of course, a quite separate issue from whether there is a sufficiency of evidence on which it could be held proved that the man in question, whoever he was, was acting in a manner such as to commit the crime charged in charge 2. There was no dispute concerning the latter issue.

[30]      Although there were other persons with Mr. Boyer when they first saw the man, none of them accompanied Mr. Boyer when he went to investigate: they remained some distance away. They saw Mr. Boyer speak to the man but they were not close enough to be able to identify him as the appellant. The Crown was therefore forced to rely on the adminicles which comprised the circumstantial evidence mentioned by your Lordships in order to try to provide the necessary corroboration for Mr. Boyer's identification of the appellant as the man in question.

[31]      I accept that the issue for the sheriff at this stage of the trial was not whether the circumstantial evidence should be regarded as supporting or confirming Mr. Boyer's direct identification evidence but whether it is capable of being so regarded. I accept also that, although it is necessary to consider each adminicle individually, which in themselves may but do not need to be incriminating, the question is whether the circumstantial evidence taken as a whole is capable of being so regarded.

[32]      After careful consideration I have come to the conclusion that that evidence is not capable of being so regarded. I agree with the conclusion and the reasoning of my Lord in the chair. I would therefore answer question (1) in the stated case in the negative, leaving question (2) to be answered after a further hearing.

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