|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General
Lord Nimmo Smith
Lord MacLean
|
[2007] HCJAC 12
Appeal No: XC486/06
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in
APPEAL AGAINST CONVICTION
by
SCOTT ALEXANDER ROBERTSON
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Alonzi; Capital Defence Lawyers
Alt: Young, A.D.; Crown Agent
15 February 2007
Introduction
[1] The appellant
was convicted after trial before a sheriff and jury at Falkirk Sheriff Court of
a charge in the following terms:
"on 27
February 2005
at Upper Newmarket Street, Falkirk, you ... did assault Craig William
Edward McArthur ... and did punch him on the face to his severe injury and
permanent disfigurement."
In addition, he was convicted of a bail aggravation.
[2] The appellant
now appeals against conviction on the grounds inter alia that the sheriff erred in repelling a submission of no
case to answer which was made at the conclusion of the Crown case, because
there was insufficient evidence identifying the appellant as the perpetrator of
the offence.
The section 283 notices
[3] Section 283
of the Criminal Procedure (Scotland) Act 1995 provides inter alia as follows:
"(1) For
the purposes of any criminal proceedings, a certificate purporting to be signed
by a person responsible for the operation of a video surveillance system and
certifying -
(a) the
location of the camera;
(b) the
nature and extent of the person's responsibility for the system; and
(c) that
visual images recorded on a particular video tape are images,
recorded by the system, of events
which occurred at a place specified in the certificate at a time and date so
specified,
shall, subject to subsection (2)
below, be sufficient evidence of the matters contained in the certificate."
Subsection (2) provides a procedure for service by a party
proposing to rely on subsection (1) on the other party of a copy of the certificate
and for service by the other party, if so desired, of a notice that he does not
accept the evidence contained in the certificate. By subsection (4) the expression "video
surveillance system" is defined as meaning "apparatus consisting of a camera
mounted in a fixed position and associated equipment for transmitting and
recording visual images of events occurring in any place."
[4] As will be
seen, during the course of the trial the Crown placed reliance on excerpts from
closed-circuit television ("CCTV") recordings.
Prior to the trial, certificates under section 283 of the 1995 Act in
respect of these recordings had been timeously served by the Crown upon the
appellant and were unchallenged by him.
These certificates, together with relative executions of service, were
lodged as Crown productions. We have not
been shown copies of these certificates, but we assume that they certified the
matters specified in section 283(1).
The evidence led by the
Crown
[5] The Crown led
the following evidence. The complainer,
Craig McArthur, said that he entered a bus shelter in Newmarket Street in Falkirk town centre at about 5 p.m. on 27
February 2005. He was then attacked from behind by a man
wearing a red shirt. He identified the
appellant in the dock as his assailant.
Detective Constable Vickerman said that he had received a complaint on
28 February from the complainer about an assault in a bus shelter in Newmarket Street the previous afternoon. He researched the CCTV surveillance system
operating in Falkirk town centre and obtained excerpts of
recordings from town centre cameras around the relevant times. He was shown these excerpts and confirmed
that they were of the Newmarket Street area and adjacent areas in Falkirk town centre. These excerpts had marked on them the date 27
February 2005
and various times between 5 p.m. and 5.30 p.m.
D.C. Vickerman asked Police Constables Scoular and Turner to view
these excerpts. Both these officers gave
evidence to the effect that they had been asked by D.C. Vickerman to view
these excerpts. They confirmed that the
excerpts shown in court were the excerpts shown to them in Falkirk police office. Both officers had operated as police
constables in Falkirk town centre for a number of
years. They were familiar with the CCTV
surveillance system and the location of the cameras around the town
centre. They said that the excerpts
showed an assault by a man in a red shirt on a youth in a bus shelter in Newmarket Street at around 5 p.m. on 27
February 2005. Other excerpts showed the man in the red
shirt with a companion. They approached
the bus shelter around 5 p.m. and at 5.30 p.m. they were shown in streets near Newmarket Street.
The officers said that they knew both young men, and identified the man
in the red shirt as the appellant. In
his Report, the sheriff states:
"Both officers were asked
specifically about the times on the excerpts.
They gave the times shown on the screen.
These times are recorded in 'real time' showing hours, minutes and
seconds as the recording is made. The
recording of the incident in which [sic]
showed a youth in a bus shelter being assaulted by a man in the red shirt was
shown to have been recorded at 5.02 p.m.
The complainer had said that he had gone to Asda Supermarket in Falkirk town centre at around 4.55 p.m. had purchased some food there and
then crossed the road to the bus shelter where he was assaulted shortly after
leaving the Asda store. The remaining
two excerpts showed times between 5.27 p.m. and 5.29 p.m."
[6] It will be apparent
from this summary that there was a notable omission in the Crown case as
presented to the jury. No mention was
made of the section 283 certificates before the close of the Crown case. Section 283(1), quoted above, provides that
such certificates shall be sufficient evidence of the matters contained
therein, subject to the notice procedure provided by subsection (2). The certificates were thus potential evidence,
but no more than that. To form part of
the Crown case, they required to be brought to the attention of the jury. They could simply have been read out to the
jury, which was the procedure contemplated in McMillan v H.M. Advocate
1982 S.C.C.R. 309. Or the matters thus
certified could have been brought out in the evidence of a suitable witness, in
the present case most obviously that of D.C. Vickerman. The mere lodging of section 283 certificates
as productions is not sufficient to make the matters certified "evidence led by
the prosecution" for the purpose of deciding whether, at the close of the Crown
case, an accused has a case to answer within the meaning of section 97 of the
1995 Act. It may be added that the
complainer was not asked in the course of his evidence to watch the excerpts
from the CCTV recordings, in particular that showing an assault by a man in a
red shirt on a youth. This could, on the
face of it, easily have been done, and indeed in our experience it is normal
practice for a witness who appears in a CCTV recording to be asked to identify
himself and others and to describe the events shown in the recordings, in
effect providing a running commentary as the recordings are played in
court. There may, however, have been a
reason of which we are not aware why this was not done in the present case.
The sufficiency of the
Crown case
[7] Before the
sheriff, and again before us, counsel for the appellant accepted that there was
sufficient evidence that the complainer had been assaulted in the manner
libelled in the charge. The issue was
whether there was sufficient evidence to corroborate the complainer's
identification of the appellant as his assailant. The Crown persuaded the sheriff that reliance
could be placed on the section 283 certificates, even though no reference had
been made to them during the course of the Crown case. Before us, however, the advocate depute
accepted that the certificates had not been put in evidence, and he did not
seek to support the view taken by the sheriff.
In our opinion, for the reasons given above, the sheriff erred in
holding that the Crown were entitled to rely on the certificates.
[8] The sheriff
held in addition, however, that there was in any event sufficient evidence
placed before the jury to provide the necessary link between the evidence of
the complainer as to the time and place of the assault on him and his
identification of his assailant, and the evidence of the two police officers,
P.C. Scoular and P.C. Turner, as to the time and place of the matters displayed
by the recordings. The question for us
to consider is whether the sheriff correctly so held.
[9] Before us,
counsel for the appellant submitted that it was crucial for the Crown to
establish that the date and times shown in the excerpts from the CCTV
recordings were correct. D.C. Vickerman
was not in a position to give evidence about the accuracy of the CCTV
surveillance system or its operation. Police
Constables Scoular and Turner could give evidence identifying the places shown
in the excerpts, but their evidence about the date and times shown in the
excerpts was no more than hearsay.
Although he made no express concession, we did not understand counsel
for the appellant to dispute that the two constables were also in a position to
identify the appellant as the man in the red shirt who was shown with a
companion in some of the excerpts, in particular the excerpt showing them
approaching the bus shelter, and that it was this man in the red shirt who
could be seen carrying out an assault on a youth in the bus shelter.
[10] The advocate
depute, for his part, submitted that there was no gap in the evidence. D.C. Vickerman had obtained excerpts of CCTV
recordings on 28 February 2005.
He had sought excerpts of recordings made around the time of 5 p.m., spoken to by the complainer. The jury had been shown these excerpts, which
contained within them the relevant date and times. The jury were therefore entitled to find
corroboration in them for the complainer's evidence that he was assaulted by
the appellant, wearing a red shirt, in the bus shelter in Newmarket Street at about 5 p.m. on 27
February 2005.
Discussion
[11] It is
regrettable that so much time should have had to be taken up before the sheriff
and again before us as a consequence of the defective presentation of the Crown
case. If the matters contained in the
section 283 certificates had been before the jury, and perhaps in addition if
the complainer had confirmed that the persons appearing in the excerpt of the
recording showing the assault in the bus shelter were himself and the
appellant, no problem would have arisen as the Crown case would have been
entirely sufficient. In our opinion,
however, despite these defects, the Crown case as to the identity of the
appellant as the perpetrator of the assault was sufficient, although barely
so. The complainer did of course
identify the appellant in the dock as his assailant. Police Constables Scoular and Turner were in
a position to give evidence about the places which were shown in the excerpts
and that the appellant was the man in the red shirt. One of the excerpts showed an assault being
carried out by a man in a red shirt, i.e. the appellant, on a youth in the bus
shelter in Newmarket Street, as described by the
complainer. The excerpts incorporated a
date and times consistent with the complainer's account. While in the circumstances it was not open to
the jury to treat these as having been conclusively established (or, if these
had themselves been crucial facts, as sufficient evidence of them), they were
entitled to treat them as adminicles of evidence supportive of the complainer's
account. Given that there was evidence
from the police that the excerpts showed the bus shelter in Newmarket Street
where the complainer said he had been assaulted, and showed the appellant in a
red shirt carrying out an assault, the jury were entitled to conclude that the
excerpts showed the appellant assaulting the complainer and therefore afforded
corroboration of his identification of the appellant as his assailant.
Decision
[12] For these
reasons the appeal against conviction is refused.
