Barry Purawec V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Clarke,Lord Hamilton |
| Court | High Court of Justiciary |
| Date | 03 March 2005 |
| Docket Number | XJ1282/03 |
| Published date | 03 March 2005 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Hamilton Lady Paton Lord Clarke
| Appeal No: XJ1282/03 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL by BARRY PURAWEC Appellant; against PROCURATOR FISCAL, Paisley Respondent: _______ |
Appellant: Miss Ogg, Solicitor Advocate; Balfour & Manson
Respondent: Mackay, A.D.; Crown Agent
3 March 2005
[1]The appellant was charged on summary complaint in the Sheriff Court at Paisley with three offences, all of which were alleged to have been committed on 5 October 2003 at a particular address in that town. The charges were of breach of the peace, of assault on Karen Blakely and of assault on Barry Purawec, Junior, then aged 10 years. The appellant pled not guilty to all of these charges. The trial took place on 9 February 2004.
[2]Prior to the commencement of the trial applications were made by the Crown under section 271(6) of the Criminal Procedure (Scotland) Act 1995 to authorise the use of a screen during the testimony of Barry Purawec, Junior and of another Crown witness, Nichola Burns, a vulnerable person aged 16 years. These applications were granted. Evidence was led by the Crown from Karen Blakely, Barry Purawec, Junior and Nichola Burns. At the close of the Crown case the solicitor acting for the appellant made a submission that there was no case to answer on any of the charges. The Crown indicated that it did not intend to proceed with the first charge but maintained that there was a sufficiency of evidence in relation to charges (2) and (3). The sheriff repelled the defence submission in relation to these charges. No evidence was led for the defence. After hearing submissions the sheriff convicted the appellant on charges (2) and (3), subject to certain restrictions. Against that conviction he appeals to this court.
[3]It is not disputed that there was sufficient evidence that the crimes of which the appellant was convicted were committed at the time and in the place alleged in these charges. The sole issue arising in this appeal is whether there was in law sufficient evidence that the appellant was the perpetrator. When the case called for hearing, the Advocate depute intimated that the Crown would not be resisting the appeal; but the court required parties to present argument on the issue.
[4]Miss Blakely gave evidence of the commission of the crimes charged and in court identified the appellant as the perpetrator. She also testified that the appellant was the father and stepfather respectively of Barry Purawec, Junior and Nichola Burns. Barry Purawec, Junior testified that the person who had come to the house on the night in question and perpetrated the assaults was his father, whom he named as Barry Purawec. In the course of his evidence he referred to the perpetrator as "Dad". Nichola Burns testified that the person who had come to the house and perpetrated the assaults was her stepfather, whom she also named as Barry Purawec. In her evidence she referred to him as "Big Barry" and to Barry, Junior as "Wee Barry". The applications under section 271(6) having been granted and implemented, neither witness made a visual identification in court of the appellant as the perpetrator. No other evidence was led; nor was any minute of admission or of agreement lodged.
[5]The submission made by the defence to the sheriff was that the identification of the appellant in court by Miss Blakely was uncorroborated by any other evidence to the effect that the appellant was the perpetrator. The procurator fiscal depute invited the sheriff to repel that submission on the basis that sufficient identification had been made out from the evidence of Miss Blakely's dock identification and the confirmation she provided of the family link between the appellant and the other two witnesses. In the Stated Case the sheriff explains that he took the view that there were two sources of evidence of identification. He says:
"Miss Blakely identified the appellant as the perpetrator; she is one source. She also confirmed that he was the father and stepfather of the other crown witnesses. The children confirmed that the perpetrator was the...
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