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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord
Justice General
Lord
Eassie
Lord
Clarke
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[2009] HCJAC 21
Appeal No:
XC246/06
OPINION OF THE COURT
delivered by LORD CLARKE
in
Appeal
by
GARY READY
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Appellant: Ogg,
Solicitor Advocate; Allan McDougall, Edinburgh
Respondent: Mitchell,
A.D.; Crown Agent
27 February 2009
[1] The appellant went to trial, on indictment, at Glasgow Sheriff Court
on 7 March
2006 on three charges involving the same
complainer, Thomas Thomson. The charges
were in the following terms:
"(1)
on 25 July 2004 at Barlanark Road, Glasgow, you while
acting with others, did assault Thomas Thomson ... and did punch and kick
him to his injury:
you
did commit this offence while on bail, having been granted bail on 20 May 2004
at Glasgow District Court.
(2) on
25 July at Millbeg
Place, Glasgow
and Barlanark Road,
Glasgow,
you did assault Thomas Thomson ... threaten violence to him and pursue him;
you
did commit this offence while on bail, having been granted bail on 20 May 2004
at Glasgow District Court; and
(3) on
26 July
2004 at Millbeg Place, Glasgow, you did assault
Thomas Thomson ... and did stab him on the body with a knife to his severe
injury, permanent disfigurement and to the danger of his life;
you
did commit this offence while on bail, having been granted bail on 20 May 2004
at Glasgow District Court."
At the close of the Crown
case the procurator fiscal depute advised the court that he was no longer
seeking a conviction in respect of charges 1 and 2 and the appellant was
duly acquitted of those charges.
[2] On behalf of the appellant, a submission was made that there
was no case to answer in respect of the third charge. In essence the submission was that there was
insufficient evidence to identify the appellant as the perpetrator of the
assault. The sheriff repelled this
submission. The appellant was, in due
course, convicted by a majority of the jury in respect of charge 3. After having adjourned the diet for the
purpose of receiving reports the sheriff sentenced the appellant on 31 March 2006
to four years imprisonment.
[3] Two grounds of appeal passed the sift in this case. In the event, however, the solicitor advocate
for the appellant, Miss Ogg, advised the court at the beginning of the
appeal hearing that she intended to argue only the first of these, namely that
"the sheriff erred and misdirected himself in repelling the submission of 'no
case to answer' made on behalf of the appellant".
[4] The appeal hearing, in this case, commenced on 17 July 2008. In the course of that hearing, very
significant difficulties emerged in relation to the transcripts of the evidence
which had been ordered in this case. In
particular, potentially significant passages of the evidence of key witnesses
were marked by the transcriber as "inaudible".
It was apparent to both the court and the parties' representatives that
it would not be possible to dispose of the appeal until some attempt was made
to ascertain what the evidence of the witnesses in question was. To this end it was agreed that the
appellant's solicitor advocate and the Advocate depute would listen to the
tapes of the trial proceedings, with a view to clarifying and, if possible,
agreeing what the evidence, which was marked as "inaudible" in the transcripts
had been. We are very grateful to
Miss Ogg and the Advocate depute for carrying out this task which resulted
in significant agreement between them as to what the evidence was, which
agreement was signified by the inserting of missing words in the blanks left by
the transcriber. Moreover, parties'
representatives produced, for the assistance of the court, a document which was
said to be an agreed summary as to the evidence of certain of the key witnesses
in relation to the point that arose on appeal.
The work done by both sides in these respects has been of considerable
assistance to the court in dealing with this case.
[5] The evidence of the complainer Thomas Thomson, in this
case was set out in summary, in the learned sheriff's careful report, as
follows.
"On
the day in question he [the complainer] had been drinking in the afternoon and
evening in various public houses in the Balornock area of Glasgow with a companion, one
Robert Gallagher. Over the course
of that afternoon and the evening the complainer consumed about
seven pints of lager. He described
himself as not sober, but not drunk, being able to run, walk and focus. On emerging at closing time from Morgan's
Public House the complainer and his companion Robert Gallagher were
involved in some sort of skirmish involving, inter alia, the appellant and the witness, Robert Wilson. The result was that the complainer sustained
a bloody nose and ran off, being pursued first to his mother's house, and then
later to the house of his brother Tony Thomson. The complainer persuaded his brother, who was
at that time in bed in order to be ready for work the next day, to get up and
assist him in looking for his companion Robert Gallagher whom he thought
had been 'getting a doing'. The
complainer armed himself and his brother with a golf club each and they went
out in search of Robert Gallagher.
They
encountered Robert Gallagher in the company of his wife, and
two sisters of the witness Robert Wilson, on waste ground at the top
of a flight of stairs leading down behind Millbeg Place. Robert Gallagher appeared to have a bleeding
nose. Shortly thereafter the appellant
and the witness Robert Wilson appeared together at the foot of the
stairs. They appeared to be
unarmed. The appellant was holding a
carrier bag containing cans of beer. As
the appellant and his companion, Robert Wilson, appeared at that stage to
be unarmed, the complainer gave over his golf club to one of the women at the
top of the stairs, and sought to enquire what had been the cause of the earlier
trouble.
There
was a central barrier in the middle of the flight of stairs running down its
entire length. Words were exchanged
which led to Robert Gallagher going down the stairs on the right hand side
of the central barrier and engaging in a struggle with Robert Wilson.
The
appellant was at this time standing about half way up the stairs on the
opposite side of the central barrier. He
did not appear hostile but merely stood holding a carrier bag containing cans
of beer. The complainer came down the stairs
on the left hand side of the central barrier on the side where the appellant
was. As the complainer approached,
suddenly and without warning the appellant pulled out a knife from his jacket
and stabbed the complainer in his lower ribs on the left hand side of his body. The complainer acknowledged that he did not
see the knife, but he had not been struck merely with a punch as he had felt
the knife get through his skin and being pulled back out. He was in no doubt that it was the appellant
that had stabbed him as there was no one else there. The complainer went back up the stairs and as
he did so he said to his brother, 'I've been stabbed'. The complainer pulled up his shirt to look at
his injury and part of his bowel came out into his hand. At the top of the stairs he collapsed and
blacked out."
[6] The starting point, therefore, was a clear unequivocal
identification of the appellant by the complainer as being the person who
perpetrated the assault upon him, which became the subject matter of
charge 3. The question for the
sheriff to decide in addressing the submission of no case to answer was whether
there was corroboration of the complainer's evidence that the accused was his
assailant. It is the case that the
evidence of the witnesses who were led by the Crown to provide that corroboration,
as being persons in the vicinity when the assault took place, was at times,
incoherent, confused and confusing.
Miss Ogg for the appellant took us carefully through this evidence,
under reference to the book of photographs of the locus which was part of the evidence at the trial. In focussing on the evidence relating to who
was where and when on the stairway on which the assault took place, she pointed
to apparent confusion and discrepancies that arose from that evidence. She submitted that the adminicles of evidence
relied upon by the Crown were insufficient to corroborate the complainer's
evidence as to the appellant being his assailant, because the Crown had failed
to establish exactly at which point in the sequence of events when the assault
took place, exactly where on the stair the assault took place and who was on
the stair at that time and had failed, accordingly, to exclude every other
person who could have stabbed the complainer.
[7] The Advocate depute accepted that the evidence of the
witnesses who were at the locus at
the time of the assault was, at times both confused and confusing. But there was a clear and unequivocal account
of the assault given by the complainer himself.
The question was, then, what other evidence, if any, was there to
corroborate that account. The question
was not who else might have committed the assault but whether there was
sufficient evidence to support the complainer's account as to who carried it
out. As far as the evidence went there
was no suggestion from any witness that anyone else but the appellant had
carried out the attack. There was
evidence from the witness Tony Thomson that at the time of the attack only the
appellant and the complainer were on the same side of the steps, at about the
same point on those steps, near to a yellow beer can which was standing upright
on the steps as shown in one of the photographs of the locus. The thrust of the other
witnesses' evidence appeared to be that they were at the relevant time all on
the other side of the barrier which ran down the centre of the stairway. There was evidence that, at the time of the
assault, the witnesses Wilson and Gallagher were engaged in some kind of clinch
together on the other side of the stairway from where the complainer was
attacked. The women present, to whom reference
was made by various witnesses, were seen at the top of the stairs by the time
the attack took place.
[8] The witness Robert Wilson gave evidence that the
appellant had been seen punching the complainer with both hands on the front of
his body. This had brought the
complainer down on to his knees. The
appellant had admitted during interview with the police that he had pushed the
complainer. The witness Wilson told the
police that the appellant had told him that he had pushed the complainer on the
chest or belly. What Wilson had said had been put to the
appellant by the police and was accepted by him.
[9] The evidence of Tony Thomson was that the appellant had
been seen to run away immediately after Tony Thomson had heard the
appellant cry out or shout, "I've been stabbed". The appellant was running way from the
complainer, down the stairs, while the complainer was jumping and holding
himself. While the witness had not seen
any contact between the appellant and the complainer he had assumed that the
appellant was responsible for the stabbing as the appellant had run off and the
only other persons present were the women at the top of the stairs.
[10] In his police interview, the accused, at various points in that
interview, admitted that he had pushed the complainer and that the complainer
had fallen back. The medical evidence
which was the subject of agreement in a joint minute, referred to injuries to
the left side of the complainer's abdomen.
This, it was submitted by the Advocate depute, was not inconsistent with
the evidence that the appellant had been seen to push or punch the complainer
on the chest or belly. Taking all these
matters together, it was submitted by the Advocate depute, that the sheriff was
entitled to reach the view that there was sufficient corroboration of the
complainer's evidence that the appellant was his assailant.
[11] In anticipation of the Crown's reliance on the evidence of the
appellant running away immediately after the complainer had shouted out that he
had been stabbed and the evidence that there had been physical contact between
the appellant and the complainer, Miss Ogg referred us to certain
authorities. In relation to the first of
these matters reference was made to Gallagher
v HM Advocate 2000 S.C.C.R. 634. In that case the appellant and a female
co-accused were charged with assault and robbery on the complainer who was very
drunk at the time of the incident and whose recollection was affected by his
condition. The complainer gave an
account of events that pointed to the appellant having been involved in an
assault and robbery upon him. The Crown
relied for corroboration of the complainer's account on, inter alia, the fact that the appellant had been seen running away
from the locus of the attack. The court held that the fact that the
appellant had been seen running away could be taken as indicating involvement
in the crime but might equally be consistent with the possibility that he had
witnessed a crime in which he did not wish to be involved and, accordingly,
this did not confirm or support the complainer's evidence of the appellant's
involvement. In our view that case can
be distinguished from the present case in that in the present case not only was
there evidence of the appellant running away but also that he was seen doing this
immediately after the complainer cried out that he had been attacked and in
that there was eye witness evidence that there had been physical contact
between him and the complainer immediately before that.
[12] As regards the evidence about the physical contact between the
appellant and the complainer, Miss Ogg referred us to McDonald v Normand 1994
S.C.C.R. 121 with a view to distinguishing it from the present case. In McDonald
the appellant had been charged with assaulting the complainer by seizing her by
the arm. The complainer gave evidence
that the appellant had grabbed hold of her wrist and had twisted her wrist and
arm forcing her to slide down a wall.
Her wrist was subsequently found to be bruised and she was in pain. On being cautioned and charged the appellant
had replied, "I only knelt on her arm".
The court held that the evidence given by the police officers of the
injuries which they observed on the complainer was consistent with her account
and was sufficient to corroborate the general allegation of assault. Moreover the appellant's reply taken in its
context was an admission to being in contact with the complainer's arm at the
time she said her arm had been injured by him.
There was in the circumstances a sufficiency of evidence to identify the
appellant as the person who assaulted the complainer. In the present case, Miss Ogg reminded us
that the assault in question consisted of the complainer being stabbed, according
to the agreed medical evidence, at his ribs on the left hand side of his
body. All that the appellant admitted to
doing in police interview was that he had pushed the complainer on the chest or
belly. That evidence was insufficient to
corroborate the kind of assault in respect of which the appellant was
charged. We note that in the McDonald case at page 124E-F the
Lord Justice General in referring to what the appellant had said in response to
being cautioned by the police said this,
"That
reply, however, is something which the sheriff was entitled to look at in the
light of all the other circumstances of the case. It was open to him to note that, according to
the reply, the appellant was admitting to making some kind of physical contact
with the complainer. Furthermore, taken
in the context of the charge to which it was a reply, he was admitting to being
in contact with her at the time when she had said she was being assaulted by him. Thirdly, it was an admission of making
contact with the part of the body which according to her account was injured in
the course of that assault. The case can
be approached therefore upon the basis that the corroboration of the identity
comes from the terms of his reply, whereas the corroboration of the fact of the
assault comes from the police evidence about the injury which they observed to
the complainer's arm and the pain from which she appeared to be
suffering."
In our view, the
significance of the decision in McDonald
for present purposes is that, like the present case, there was an admission by
the appellant that he had made physical contact with the complainer at about
the time of the assault. There was no
evidence that anyone else had any such physical contact with the complainer. In our view, what the appellant said to the
police in interview was also an adminicle of evidence which the sheriff was
entitled to have regard to when judging of the sufficiency of the evidence as
to the identity of the appellant being the complainer's assailant.
[13] In the whole circumstances we have reached the conclusion that
the sheriff was entitled to reject the submission of no case to answer, having
regard to the evidence led by the Crown to which the Advocate depute has drawn
our attention. As we have said, the
starting point in this case was a clear and unequivocal identification by the
complainer of the appellant, who was apparently known to him, as being his
assailant. In such a case, very little
may be required in the way of corroboration of identification. We are satisfied that the various adminicles
of evidence relied upon by the Crown in the present case, however slight they
might fall to be regarded as if looked at individually, when taken together
provided adequate corroboration of the complainer's evidence as to identity of
his assailant. For the foregoing reasons
the appeal falls to be refused.
