APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lady Paton Lord Clarke	[2010] HCJAC 93 Appeal No: XC607/07 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by MICHAEL JOHN McCONNACHIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McCluskey; Culley & McAlpine, Perth

Respondent: A Mackay, A.D.; Crown Agent

29 September 2010

The procedural history

[1] On 3 December 2004 the appellant was convicted after trial in the High Court at Stonehaven of having on 13 August 2004 at Garth Avenue Post Office, Perth assaulted Mrs Audrey Buchanan by presenting a firearm or imitation firearm at her and by various other acts and of having attempted to rob her of a sum of money. The offence was aggravated by it having been committed while the appellant was on bail. He was subsequently sentenced to five years and six months' imprisonment, of which six months were attributed to the bail aggravation. The appellant served three years and four months of that sentence before, on 13 December 2007, being liberated on bail in the course of the present appeal proceedings. The jury's verdict of guilty was by a majority.

[2] The appellant lodged a note of appeal containing six grounds. Leave to appeal was granted in respect of the first and second of these grounds, but refused by the single judge in respect of the remaining grounds. The appellant submitted an application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 for leave to appeal in respect of these remaining grounds. That application was refused in respect of grounds 3, 4 and 5 and refused in hoc statu in respect of ground 6 (which related to an alleged failure by the Crown to disclose information to the defence). At the opening of the appeal hearing Mr McCluskey, on behalf of the appellant, stated that ground 6 was no longer to be insisted on. In so far as based on that ground the appeal was accordingly refused.

The evidence at the trial

[3] There was no dispute at the trial that an assault and attempted robbery had taken place in the premises libelled on the date in question. The issue was whether the offender had been proved to be the appellant. The principal evidence upon which the Crown relied was that of Mrs Audrey Buchanan and of another member of staff, Mrs Kathryn Benson. Mrs Buchanan testified that around 5.25pm, shortly before closing time, she was standing on the staff side of the counter of the premises when she became aware of a man standing on the other side of that counter. He was holding a gun. She immediately recognised him as being the appellant whom she had known for some twenty seven or twenty eight years, that is from his childhood. When he had been younger, he had, virtually every day, been in and out of another sub-post office in which Mrs Buchanan had then worked. As he had grown older he had visited other sub-post offices in which she had worked. She had last seen him about two weeks before.

[4] Mrs Buchanan testified that, after the appellant had confronted her, he pushed a carrier bag towards her. He told her to put money into the bag. She told him: "Oh, bugger off". He pushed the bag towards her again. She again told him to go away. Whilst giving evidence, she indicated that she had spoken very firmly to the appellant. The appellant then flipped up the hatch on the counter and came through into the staff side of the counter area. He pushed Mrs Buchanan slightly and then continued forwards, into the back shop of the premises, where Mrs Benson was with her daughter. Mrs Buchanan stated that the appellant looked very desperate. He had a wild look in his eyes. He appeared to be nervous. As the appellant went through into the back shop, Mrs Buchanan shouted to Mrs Benson to telephone the police. She then heard something of a commotion. The appellant then re-emerged from the back shop premises, rushed past her and went out of the front door of the shop, without saying anything further. Mrs Buchanan described the gun, which the appellant had been carrying, as being silver with a black handle. The police were telephoned. They arrived very quickly. Mrs Buchanan was 100% certain about her identification of the appellant. He had been very close to her, when he had asked that she put money in the bag. She was cross-examined to the effect that she might have been mistaken about the identification. She was adamant that she was not. She also recognised his voice. His face was uncovered. She had given the appellant's name to the police on their arrival.

[5] Mrs Benson testified to having been in the back shop of the premises at about 5.30pm. The door leading into the back shop had been ajar. She had heard loud noises and voices coming from the front shop, including something being said about money. She had opened the door to go through into the front shop and been confronted by a male, on the post office side of the counter. She had sworn at him. He had not said anything to her. He was carrying a gun at shoulder height. He also had a carrier bag. He was wearing a coat. He was only two or three feet away from her. His face was very drawn. His eyes were scary. He did not run away immediately after he saw her. She identified the appellant as being the man who had entered the post office. She stated that she was fairly confident that the appellant was that man, because she had seen him previously in the post office, approximately a month before. She explained that in Perth a number of sub-post offices had closed down and she made it her practice to pay attention to new customers and to try to get to know their names. During cross-examination Mrs Benson confirmed that she was aware that the appellant was known to Mrs Buchanan and that after the incident the appellant's name had been mentioned in discussions with Mrs Buchanan. Mrs Benson stated that it was unlikely that the person who had entered the post office had not been the appellant and had merely looked like him.

[6] The appellant was detained by police officers early the following morning. On the way to police headquarters he said in the presence of these officers, "There is no fucking way that I would have robbed somebody with a gun". He had earlier been advised that he was being detained in connection with "an armed robbery".

[7] In advance of the trial the appellant lodged a special defence of alibi. He gave evidence in support of it. Other evidence was also led in that respect. The jury's verdict was to the effect that that defence was rejected.

The first ground of appeal

[8] The first ground of appeal is that, since the conviction, fresh information has emerged which points to the innocence of the appellant. The burden of that information is that the crime was committed by another, namely Mark Campbell, now serving a term of imprisonment for assault and robbery.

The new evidence

[9] At the hearing of the appeal, evidence was given from several sources: from the appellant, from the now incriminee Campbell, from William Black who at the time of the robbery was staying with his sister and her family in Perth a short distance from the Garth Avenue Post Office, from that sister, Anne Black, and from a Paul Murning.

[10] The appellant's evidence was that after his conviction, while he was in Perth Prison, he had been told by William Black, who was at that time also a prisoner there, that the person who had committed the attempted robbery at the post office was "Mark" (later identified as Mark Campbell). He had informed his solicitor immediately and had continued to protest his innocence. Later when in Shotts Prison he had met Paul Murning, then also a prisoner there. Murning had told him that he (Murning) knew who had committed the attempted robbery, namely, Campbell. He (the appellant) had had no contact with Campbell or with Anne Black. He had loudly and widely protested his innocence since first charged with this offence.

[11] Campbell was then led as a witness for the appellant. At the outset of his testimony he was duly warned that he was not obliged to answer any question which tended to incriminate him. In examination-in-chief he gave his personal details, including his criminal record, which included convictions in the High Court in 2000 and again in 2005 for assault and robbery, but when asked about events on 13 August 2004 declined to answer the questions put to him. In cross-examination by the Advocate depute he denied any knowledge of the Garth Avenue Post Office. There was put to him a statement which he had given to a police officer in April 2005 in which he had denied any involvement in an attempted robbery there in August 2004; he had not, according to the statement, been in Perth since 2003 when he had spent a few weeks there. Everything he had said in the statement, including in particular his not having committed that crime, was true. He denied having told Murning that he had committed it. Counsel's attempt in re-examination to explore with the witness the events of August 2004 was met with a refusal by the latter to answer any such questions.

[12] William Black, who at the time of the hearing was held in Perth Prison, testified that early in 2005 he also had been held there and had spoken to the appellant, telling him that he knew that the appellant had not committed the attempted robbery. At about the time of that offence Mark Campbell had been at his sister's home in Struan Road, not far from the Garth Avenue Post Office. Campbell had spoken of "doing" a post office. He (Black) had suggested the Garth Avenue Post Office - "as a joke". On the day of the attempted robbery Campbell had gone to the post office, ostensibly to buy cigarettes but for the purpose of "casing" the premises. He had returned and later left saying, "I'm going to do that job". He had driven to the vicinity of the post office. The witness had not seen Campbell enter the post office but shortly thereafter had seen him run to his car with his hands over his face and drive off. These events had happened "in the afternoon". The witness had not reported anything to the police as he was "involved in activities" and did not want the police near him.

[13] Anne Black testified that in August 2004 she was living in Struan Avenue, Perth with her partner, Thomas McLeish, and her young children. Her brother, William Black, Mark Campbell and a friend of Campbell's were also staying there for a while. Campbell had said he needed money and that he was "thinking of a post office". He had gone to the Garth Avenue premises to purchase certain items and had then returned. He had then stated that the post office was "too good to be true"; its security was "slack". He later left the house, Ms Black having told him that he could no longer stay. She had seen him driving off, not down Garth Avenue towards the post office, but in another direction. She had remained in the house until she went to the post office at about 6.00pm. There was a lot of police activity there at that time. Campbell had driven off from her house about one and a half to two hours before that.

[14] Murning testified that in 2006 he was in custody in Shotts Prison where he had met both Campbell and the appellant. Campbell had told him that he had committed the crime for which the appellant had been convicted. In his affidavit Murning had said that he was sure that Campbell had said "it was a 4-figure sum between £1,000/£3,000, somewhere in that region." He was now less sure about the amount of money Campbell had said he had taken; he (Campbell) "may have been bragging".

Discussion

[15] In addressing the first ground of appeal we remind ourselves of the propositions formulated by the court of five judges in Al Megrahi v HM Advocate 2002 SCCR 509 at para [219]. These include:

"(4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.

(5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial.

(6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial."

The relevant statutory framework was further explained in Fraser v HM Advocate 2008 SCCR 407 at paras [132] - [133] as follows:

"[132] If the appellant provides [a reasonable explanation why the new evidence was not heard at the trial] the court must consider whether the new evidence would have been capable of being regarded by a reasonable jury as credible and reliable. If the court is so satisfied, it must next consider the cogency of the new evidence. The new evidence must be important evidence of such a kind and quality that it was likely to have been found by a reasonable jury, under proper directions, to have been of material assistance in their consideration of a critical issue that emerged at the trial (Cameron v HM Advocate, Lord Justice General Emslie at p. 619).

[133] At that stage the appeal can succeed only if the court is satisfied that if the jury had heard the new evidence they would have been bound to acquit; or that the new evidence is of such significance that it is reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice (section 106(3)(a); Cameron v HM Advocate at pps. 618-619). Since there is a danger that fresh evidence may assume greater strength than it would have had if it had been led at the trial (Gallacher v HM Advocate at p. 47), it is essential that this court should assess it in the context of the whole evidence led at the trial (Al Megrahi v HM Advocate at para [249]; cf Lyon v HM Advocate)."

[16] Before applying these observations to the evidence adduced in this appeal it is necessary to address another issue of law which arose. As noted above, the incriminee Campbell in questions during examination and re-examination exercised his right to decline to testify about the events of 13 August 2004. In cross-examination he was to some extent more forthcoming in that he testified that he had in 2005 given an account to a police officer (in which he denied any involvement in the crime in question) and that that account was true. The issue of law is whether in these circumstances the witness Murning's account of what, according to him, Campbell had told him in prison was, albeit hearsay, admissible evidence, by virtue of section 259 of the Criminal Procedure (Scotland) Act 1995, of the content of Campbell's statement. In our view it is. Although Campbell in cross-examination by the Crown admitted that he had given a statement to the police officer about the crime of which the appellant had earlier been convicted and asserted that the denial in it of his own involvement was true, when asked by counsel for the appellant about the material events, he insisted on sheltering behind his right not to incriminate himself. The truth of his denial could accordingly not be tested. This was in effect a situation in which the witness, having been authorised to do so by virtue of a ruling of the court in the proceedings that he was entitled to refuse to give evidence in connection with the subject-matter of the statement on the grounds that such evidence might incriminate him, refused to give such evidence. It was accordingly within the scope of section 259(2)(d) of the 1995 Act.

[17] However, although Murning's evidence (which for present purposes we are prepared to accept as being capable of being regarded by a reasonable jury as credible and reliable) of what Campbell told him is admissible, that tells us nothing about the quality of Campbell's assertion/admission. We found Campbell's testimony to be wholly without credit. He has frequent convictions for dishonesty. In his statement to the police he denied having been in Perth at all in 2004 - a statement wholly at odds with the testimony of William Black and Anne Black, whose testimony on his presence there we accept. According to Murning's affidavit, Campbell told him that the proceeds of the crime were "a 4-figure sum", although Murning was in evidence less confident about how much money was taken. It is known that no money was in fact taken. In these circumstances, Campbell's statement to Murning has all the appearance of being that of a braggart - not only about what was taken but also of his personal involvement in the crime. That statement is in these circumstances, in our view, not capable of being regarded by a reasonable jury as being credible and reliable as to its contents.

[18] As to the testimony of William Black, we found him to be a most unsatisfactory witness. His demeanour in the witness box was not that of an honest and reliable witness. In several respects he contradicted in evidence an affidavit he had earlier sworn and a police statement he had earlier given. These contradictions included whether Campbell had had certain visible tattoos in 2004. When faced up with the fact that Campbell had no such markings, Black resorted to an incredible suggestion that Campbell might have used transfers. He claimed in evidence that he had seen Campbell drive down to the post office and later drive off. In his statement to the police he gave contradictory accounts of whether he had seen Campbell approach the post office. His account of the critical events around the time of the crime was in material respects in conflict with that of his sister, Anne Black. In our judgment, his evidence, except in so far as confirmed by that of his sister, was not capable of being regarded by a reasonable jury of being a credible and reliable account of Campbell's involvement with this crime.

[19] There remains the evidence of Anne Black. We are of opinion that her evidence that Campbell stayed for a day or two in August 2004 at her home in Struan Road, Perth and left there on the afternoon when the attempt on the post office was made, was such as could be regarded by a reasonable jury as truthful and reliable. We take a similar view of her evidence that Campbell spoke in her presence of needing money and was thinking of "doing" a post office; that Campbell visited the Garth Avenue Post Office and on his return spoke disparagingly of its security arrangements. However, her testimony is quite inconsistent with Campbell having in fact made the attempt in question. According to her, he left her home by car at about 4.00 to 4.30pm, while it is clear that the robbery was attempted shortly before 5.30pm a very short distance away. He also, according to her, drove in a different direction from her home; while he could have approached the post office by a roundabout route, there is no reason to suppose that he would, if minded to commit this crime, have taken anything but the direct route he knew from his earlier visit. There is nothing in her evidence which puts Campbell at or close to the Garth Avenue Post Office at the material time.

[20] It is essential to assess the new evidence in the context of the whole evidence at the trial. Because of the importance at the trial of the eyewitness identification of the appellant by the witnesses Audrey Buchanan and Kathryn Benson, we decided that, before reaching a final conclusion on this appeal, we should consider a transcript of the evidence given by each of them. A transcript was obtained and we heard counsel on it. Perusal of it confirms the trial judge's report that Mrs Buchanan, who had known the appellant since his childhood, was "a 100% sure" of her identification of him as her assailant. Mrs Benson, although she was not as well acquainted as Mrs Buchanan with the appellant, had known him as a customer and was fairly confident of her identification. Both witnesses had had an opportunity to view the assailant at close quarters and over a reasonable period of time. It was not suggested that it was necessary or appropriate to see a transcript of the evidence in support of the appellant's alibi.

[21] Although there are well recognised dangers in evidence of visual identification, such dangers are significantly reduced where the identification is of a person well known to the identifier and where, as here, it is corroborated by another identifier who knows the identified person. The evidence of these two witnesses was in the circumstances cogent. Mrs Buchanan's identification had led to the appellant's almost immediate arrest. We are not persuaded that the new evidence, in so far as capable of being regarded as credible and reliable by a reasonable jury, is likely to have had a material bearing on the critical issue at the trial, namely, the identification of the assailant. We reach that conclusion notwithstanding that the jury's verdict of guilty was by a majority.

[22] We should add that there was also evidence of a statement made by the appellant to the police which was relied on by the Crown at trial as incriminatory. We have not, however, relied on this piece of evidence in coming to our conclusion on the first ground of appeal.

The second ground of appeal

[23] The second ground of appeal concerns the trial judge's directions in relation to corroboration. Clear directions were given by him as to the need for there to be at least two sources of evidence which incriminated the appellant as the assailant. The trial judge, in relation to the two eyewitnesses, said:

"Certainly if you rejected both their identifications that would undoubtedly be the end of the case."

He was less forthright on the legal position if the jury accepted the identification evidence of one of these witnesses but not of the other. That was no doubt because there was a third source of evidence available - namely, the observations by the appellant to police officers following his apprehension, which might be construed as incriminatory. It was unnecessary in these circumstances for the judge to explore the range of combinations which would entitle the jury to return a verdict of guilty. They were clearly directed that a minimum of two sources of credible and reliable evidence was required. This ground of appeal also fails.

Disposal

[24] For the foregoing reasons the appeal is refused.