APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Osborne
Lord Nimmo
Smith
Lord MacLean
|
[2006]
HCJAC 49
Appeal
No: XC304/03
OPINION OF THE COURT
delivered by LORD OSBORNE
in
NOTE OF APPEAL AGAINST
CONVICTION
by
JAMIE HAGGERTY
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Shead, McKenna; McCusker McElroy, Paisley
Alt: K. Stewart, A.D.; Crown Agent
25 May 2006
The background
circumstances
[1] The appellant
appeared for trial along with two other persons in the High Court at Paisley on 11
December 2002
and succeeding days. He faced two charges
in the indictment, charges (4) and (5).
In charge (4) the appellant, and James Scott Hendry Gardner were charged
with assault and robbery at a post office premises at Lochfield Road, Paisley,
on 12 March 2002. Charge (5), which was
brought against George Andrew Sweeney and the appellant, was also a charge of
assault and robbery said to have been committed at newsagents and a sub-post
office premises at 82 Sycamore Avenue, Johnstone, also on 12
March 2002. The appellant was convicted on both of these
charges. Subsequently he was sentenced
to an extended sentence of 12 years duration, with a custodial term of 9 years
and an extension period of 3 years.
[2] Following his
conviction the appellant lodged a note of appeal against conviction on a number
of grounds. However, leave to appeal was
granted only in relation to ground 2. That
ground of appeal was in the following terms:
"At the close of the Crown case a
submission was made on behalf of James Haggerty in terms of section 160 of the
Criminal Procedure (Scotland) Act 1995. The submission related to charge (4). The submission was repelled. The trial judge erred in law in repelling
this submission. The evidence against
Jamie Haggerty for charge (4) was a supposedly self corroborating special knowledge
'confession' by Jamie Haggerty. It is
clear from the trial judge's charge to the jury (pages 66-68 and 73-74) that
this was the evidence relied on by the Crown in relation to Jamie Haggerty for
charge (4) and that the trial judge directed the jury that they were entitled
to rely on said evidence. However the
supposed 'confession' was actually a denial of the offence, albeit including
information which might have been said to disclose 'special knowledge'. As the statement included no confession the
submission in terms of section 160 of said Act should have been upheld. Esto
the statement was correctly identified by the trial judge as a 'self
corroborating special knowledge confession';
there was insufficient independent evidence to demonstrate the accuracy
of the appellant's detailed knowledge of the circumstances."
The evidence in the case, so far as it was relevant to the
appellant in relation to charges (4) and (5) is described in the trial judge's
report to this court, to which, for convenience we refer. During the course of the debate before us,
the accuracy of his account of the evidence was, with one qualification,
accepted.
Submissions for the
appellant
[3] Counsel for
the appellant began by outlining the circumstances of the case. He explained that the incident which had
given rise to charge (4) had preceded the incident to which charge (5) related
on the day in question. The Crown case
against the appellant in relation to charge (4) was purely of a circumstantial
nature. The Crown's position had been
that the appellant and his co-accused had both actively participated in the
assault and robbery to which the charge related. The co-accused had been directly identified
by certain witnesses, but had been acquitted on this charge. There was no direct identification of the
appellant in relation to this charge.
Counsel drew attention to the account of the evidence relating to it
given in his report by the trial judge.
The assault and robbery at the premises at Lochfield Road, Paisley had occurred at about 9.20 a.m.
The premises contained a post office section and a shop section. The post office section of the premises had
been manned by two witnesses, Struthers and Paton. The other counter there was manned by the
shop owner, Rana. In addition, at the
material time, two members of the public were in the shop, an elderly woman,
Mrs. Munro, who was at the post office counter, and Mrs. Sharp, who was at
the shop counter. All of these witnesses
spoke to the assault and robbery. They
stated that two male persons had entered the post office. Each had his face masked. One went up to the post office counter, which
was protected by a glass security screen.
The other went to the shop counter, behind which Rana was serving. These witnesses variously described the two
robbers as being in possession of weapons.
The robber at the post office counter was said by Struthers, Paton and
Mrs. Munro to be holding a knife like the large curved bladed knife, Crown
Label production 21. The robber at the
shop counter was said by Rana and Mrs. Sharp to be carrying a weapon of
similar length to Crown Label production 21.
The trial judge had narrated the details of the commission of the
offence. These included the removal of
money from the till of the shop counter, which was placed in a blue plastic bag
similar to Crown Label production 54.
Following upon the commission of the offence, the two robbers left the
premises. Struthers went out after them
and noted a red car speeding away. Prior
to the robbery a red car had been seen in the general vicinity with three
occupants. It transpired that the
co-accused was the registered keeper of this motor car. At about the same time as the car sped off
following the robbery, a witness, Gilligan, saw a man running from Lochfield Road carrying a blue bag similar to Crown
Label production 54 and holding up to his face what the witness described as a
machete, resembling Crown Label production 21.
[4] Shortly after
the robbery took place, at about 9.30 to 9.45 a.m., but at a point some
distance from Lochfield Road, a civilian witness, Somerville, had
been walking his dog along a public foot and cycle path near Newton
Terrace. In an area of rough scrub
beside the path he had seen an area of grass burning. He had also seen there what appeared to be a
bundle of clothing, a bag and a baseball cap and also the burning remains of a
knife. This last he had kicked away and
he had then put out the fire. He had identified
the area and the knife as those shown in Crown production 45. The knife had been recovered by police
officers the following day and was Crown Label production 21. Its handle was burned. Struthers, who had noted the car speeding off,
had described the driver as wearing a white baseball cap. He had taken down the registration number of
the car and informed the police. As a
result of that, the identity of the registered keeper was discovered.
[5] At about 9.50 a.m. police officers were instructed to
go to the address of the co-accused at 44 Barterholm Road, Paisley.
The officers arrived there about 9.55 a.m.
The car was found parked at the rear of the building beside the entrance
to it. The car was unlocked and
empty. The bonnet of the car was still
warm. In a refuse bin beside the car was
found a mask, Crown Label production 33, which witnesses to the robbery
identified as like one worn by one of two persons who had been in the post
office and had been responsible for it.
[6] Upon finding
the car, police officers made their way to the flat occupied by the co-accused. He was found to be in the flat alone. He was undressed and appeared as if he had
got out of bed. A search of the flat was
made. In the course of it, police
officers recovered two empty knife sheaths from the floor at the foot of the
bed in the bedroom. One of these sheaths
was capable of holding the knife, Crown Label production 21, which had a
distinctive curved shape, and the other of holding the second knife referred to
in evidence, Crown Label production 34, which had a straighter blade.
[7] Struthers and
Paton identified the co-accused as being the male at the post office counter,
both at an identification parade held on 19 March 2002, and again in court. The witness Rana described the two males as
being the same height, about 6 feet 1 inch. Mrs. Munro stated that the male at the post
office counter seemed tall and she picked out two tall persons at an
identification parade, who were 6 feet and 6 feet 1 inch in height
respectively. Mrs. Sharp in evidence
said that the second male was a bit smaller than the first one. She estimated the first man was 5 feet 9
inches in height and the second man was 5 feet 7 inches. At an identification parade on 19
March 2002
she picked out a male who was 6 feet 1 inch in height as being like the robber
at the post office counter because of his height. Evidence was given by one Laura McBeth that
both the appellant and his co-accused were about the same height.
[8] Counsel for
the appellant explained that, at least in the view of the trial judge, there
was some connection between the first and second robberies. The robbery to which charge 5 related had
occurred at about 12.30 p.m. on 12 March
2002. Suffice it to say that the witness McBeth
testified that she had driven the appellant and his co-accused on charge 5 to Cedar Avenue, Johnstone, where she parked her
car. This was near the sub-post office
premises at 82 Sycamore Avenue.
The appellant and his co-accused on charge (5) had then left the
vehicle. Two civilian witnesses, Bannon
and Duncan, spoke to seeing Laura McBeth alone in the car. Bannon saw two men get out of the car with
bags in their hands. He heard shouting
and then saw the two men returning to the car, one of whom was holding boxes
taken from the sub-post office and a knife.
Duncan saw the two men running back from
the direction of the sub-post office and get into the car. He gave chase to the car. That robbery involved the use of a machete
like Crown Label production 34.
Following the robbery to which charge (5) related, the car driven by
McBeth set off at high speed. It was
pursued by a police car. In the course
of the chase, a knife was seen to be thrown from the car by one of the
passengers. Laura McBeth testified that
she thought that the co-accused in charge (5) had been carrying this weapon
when he got back into the car after the robbery.
[9] There was one
particular respect in which the account of the evidence given by the trial
judge was challenged and appeared to have no basis in fact. At page 17 of his report he had stated that
there was evidence that the second sheath found at 44 Barterholm Road fitted the knife, Crown Label
production 34, which was identified as having been in the hands of and used by
the appellant in the second robbery. It
was submitted that there was no evidence to that effect and attention was drawn
to the evidence given by Laura McBeth, to which reference has already been
made.
[10] Reverting to
the circumstances following the second robbery, the car chase came to an end
when the car involved collided with a lamp post in Hallhill Road, Johnstone. The appellant and his co-accused in charge
(5) were pursued on foot by police officers, by whom they were identified. They were subsequently detained.
[11] Counsel also made
reference to evidence given by three police officers, Detective Sergeant Muir
and Detective Constables Macpherson and Cameron concerning events later in the
evening on 12 March 2002.
Their evidence was to the effect that at about 10.30 p.m. the appellant had intimated that he
wished to see C.I.D. officers. The
officers went to see him. They were not
concerned with the enquiry into the robbery to which charge (4) related. The appellant was cautioned. He then informed the officers that he wished
to point out an area to them. Within the
police office he made a voluntary statement, which was noted at the time, and
in which he said:
"I didnae do the one in the
morning. It was Jamie Gardner. He burnt the clothes he had been wearing and
he threw away the knife but I'll show you where he threw it."
The appellant was then placed in a police car and under his
directions the car was driven to Newton Terrace. He pointed towards the path and said that the
area was "up there and you go to the right".
He also informed the officers that the knife had a curved blade like a Gurkha
knife. The police officers, who searched
in the dark, did not find the knife and burnt articles on that occasion. However, they were subsequently found, in
that general area.
[12] Counsel for
the appellant went on to submit that the voluntary statement to which reference
had been made could not be seen as a confession, let alone a special knowledge
confession relating to the offence to which charge (4) related. In connection with this submission he
referred to Beattie v H.M. Advocate 1995 S.C.C.R. 93, where
consideration was given to the law relating to special knowledge
confessions. He submitted that the
principle relating to such confessions could not be applied in the
circumstances of the present case, since there was no confession. The proper approach was to consider whether,
on the basis of the whole evidence, there was sufficient evidence to
demonstrate the guilt of the appellant on charge (4). His submission was that there was
insufficient evidence for that purpose.
[13] Counsel went
on to make submissions concerning the nature of circumstantial evidence, in
connection with which he relied upon Al
Megrahi v H.M. Advocate 2002 SCCR 509, particularly at page 529, paragraphs 31 to 36. In his submission the evidence available
against the appellant in the present case did not meet the criterion set out in
that passage. Having regard to the
position taken up by the Crown at the trial, it was necessary for the Crown to
show that the appellant had been one of the two people who had actually
committed the robbery, as actors, in the post office premises, since they had
not averred in charge (4) that the offence had been committed by the two
accused in association with any unknown third person.
[14] Turning to
examine the evidence which might be considered to be available to the Crown
against the appellant, he dealt first with evidence about the height of the
perpetrators of the assault and robbery.
His submission was that that evidence did not assist the Crown. There had been no evidence before the court
concerning the height of the appellant.
Furthermore, the evidence given by witnesses in the post office
concerning the height of the perpetrators was not consistent. As regards the voluntary statement made by
the appellant to the police, in certain respects that statement was not
consistent with what had been found by the witness Somerville when walking his
dog. It was true that two sheaths for
knife had been found in the flat of the co-accused in charge (4), where the
appellant had been present the night before.
However, no inference useful to the Crown could be drawn from that state
of affairs. In all the circumstances the
submission of no case to answer ought to have been sustained.
Submissions for the
Crown
[15] The Advocate
depute began by making clear that he was not contending that the voluntary
statement made by the appellant amounted to a confession in relation to the
offence to which charge (4) related. It
had to be treated simply as an adminicle of evidence like others. Accordingly the principles relating to
special knowledge confessions had no application to that statement. He also made clear that he accepted the
observations of the court concerning the nature of circumstantial evidence in Al Megrahi v H.M. Advocate.
[16] Turning to the
evidence itself, the Advocate depute accepted that there was no identification
of the appellant by any of the witnesses who had been present in the post
office and shop premises when the assault and robbery occurred. However, they had been able to give evidence
about the heights of the two persons involved.
He went on in detail to refer to the evidence given concerning those
matters. A further important part of the
evidence was the voluntary statement given by the appellant. He had taken the police to the area where the
knife, Crown Label production 21, and other burnt objects were found. It could reasonably be inferred from the
terms of the voluntary statement of the appellant that he had been present when
the fire had been started by the co-accused in charge (4). That must have occurred within a very short
period of time following the commission of the offence. It was submitted that that material was
capable of giving rise to the further inference that the appellant had been
involved in the commission of the offence.
[17] Further
relevant evidence was the connection of the appellant with his co-accused's
flat. There was evidence that the
appellant had been at a party at that flat the night before the day of the robbery. The knife, Crown Label production 21, fitted
one of the two sheaths which were recovered at 44 Barterholm Road, Paisley.
However, the Advocate depute accepted that the passage at page 17 in the
trial judge's report where it was indicated that there was evidence that the
knife, Crown Label production 34 had been identified as being in the hands of
and used by the appellant in the subsequent robbery, was erroneous.
Decision
[18] We have
reached the conclusion that, when the submission of no case to answer was made
under section 160 of the 1995 Act at the close of the Crown case, on behalf of
the appellant, there was insufficient evidence to entitle it to be concluded
that the appellant was one of the participants in the assault and robbery to
which charge (4) related. Looking at the
evidence relied upon by the Crown in arguing that there had been sufficient
evidence against the appellant, we are of the view that the evidence as to the
heights of the participants in the robbery to which charge (4) related, given
by witnesses who were in the post office and shop premises at the time, possessed
no evidential significance, since there was no evidence before the court as to
the height of the appellant himself.
Furthermore, there was material disparity between the evidence of
different witnesses as to the heights of the participants. It is also important to note that none of the
witnesses who spoke to the heights of the participants suggested that there was
anything unusual or distinctive about the heights of those persons.
[19] As regards the
voluntary statement made by the appellant to the police, narrated above, it was
a matter of agreement between the parties that this could not be viewed as a
special knowledge confession, since it was not a confession at all, at least in
relation to the offence to which charge (4) related. What it amounted to was a statement to the
police from which it could reasonably be inferred that the appellant had been
present when the co-accused had set fire to the clothes that he had been
wearing at the first robbery and the knife, Crown Label production 21. Despite the fact that that event must have
occurred within a fairly short time of the commission of that offence, we do
not consider that, even in association with the other evidence, it is capable
of giving rise to the further inference that the appellant was also a
participant in the robbery itself. It
was noteworthy that there was evidence that there had been three persons in the
red car which may have been used by the robbers to leave the scene of the
robbery, whereas the Crown's allegation was that only two persons were involved
in the commission of the offence.
[20] Turning to the
matter of the appellant's presence in the flat at 44 Barterholm Road, Paisley
at the party the night before the day of the robbery, we are at a loss to
understand how any inference useful to the Crown can be drawn from that
situation, particularly in the light of the fact that there was no evidence
that the sheath, Crown Label production 34, and the knife which it was capable
of holding, had been in the hands of the appellant following the second
robbery, in the commission of which he had participated.
[21] In all these
circumstances we have concluded that the trial judge erred in not sustaining
the submission of no case to answer. It
follows that the appellant's conviction on charge (4) must be quashed. The case will be continued for the purpose of
consideration of an appropriate sentence in the light of the decision which we
have just made.
