Note Of Appeal Against Conviction By Jason Brown Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lady Paton,Lord Justice Clerk |
| Neutral Citation | [2014] HCJAC 120 |
| Date | 22 October 2014 |
| Docket Number | XC60/14 |
| Published date | 30 October 2014 |
| Court | High Court of Justiciary |
| Year | 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice Clerk Lady Paton Lord Bracadale
| [2014] HCJAC 120 XC60/14
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
NOTE OF APPEAL AGAINST CONVICTION
by
JASON BROWN Appellant;
against
HER MAJESTY’S ADVOCATE Respondent:
_____________ |
Appellant: CM Mitchell; Gilfedder & McInnes (for McCusker McElroy & Gallanagh, Paisley)
Respondent: Scullion QC AD; the Crown Agent
22 October 2014
Introduction
[1] On 23 December 2013, at the Sheriff Court in Paisley, the appellant was found guilty, by the unanimous verdict of the jury, of a charge of assault with intent to rob. The libel was that on 9 November 2012, at Cherished Thoughts, High Street, Johnstone, he had assaulted PG, an employee, demanded that she open the till, seized her by the body, pushed her on the body and struggled with her to her injury. There was also a bail aggravation. On 20 January 2014, the appellant was sentenced to 22 months imprisonment.
[2] The appeal raises one issue. That is whether the sheriff erred in her directions to the jury to the effect that there was corroboration, of the clear evidence of identification of the appellant given by PG, in the evidence of a witness, DMcA.
Evidence
[3] The critical issue was one of identification. PG was the proprietor of the shop. She identified the appellant in court as the perpetrator. She explained that she had seen him close up and face on. She recalled his distinctive dark-rimmed Elvis Costello style glasses. He had greasy hair. The appellant had been known to her from previous visits to the shop, when he had attempted to sell bacon to local shopkeepers. She had not seen him for some years. On the day after the incident, PG had picked out the appellant from a series of 12 images on an emulator sheet, although these images did not have the appellant wearing glasses. On being shown the incriminee in court, PG said that he was not the person who had been involved. This was then a clear unequivocal identification of the appellant by the complainer.
[4] DC Craig Riddell viewed certain CCTV images which had been recovered from a camera outside Poundland. It was also located in the High Street. The images were displayed in court, but were rather grainy in nature. They showed a man lingering outside the shop, entering it and then running out some minutes later. DC Riddell identified this man as the appellant, whom he knew. In fact DC Riddell had viewed other CCTV images, but these had not been produced at the trial. He maintained that he could identify the appellant from the Poundland CCTV images alone. He also knew the incriminee. He accepted that there was a similarity between him and the appellant. Nevertheless, he maintained that it was the appellant and not the incriminee who was shown on the images.
[5] The third witness was DMcA, who was passing the shop when, according to her evidence, the would-be robber ran past her down the street. He had been wearing big rimmed old fashioned glasses. For reasons which were not explored, there was no attempt to ask Ms McA to identify this person, such as by the use of emulator sheets. When she received her citation, which contained the name of the appellant, Ms McA maintained that she thought that something had gone awry, because she knew the appellant and did not think that he had been the person whom she had seen running away. She described the man as both wearing a hat and gesticulating at her, but neither of these aspects was shown in the CCTV images. She accepted that she must have been wrong about these matters. She said that she was not 100% certain that the person was not the appellant, but she did not think it was him. On being asked to look at the incriminee, she said that he looked more like the person she had seen. Again she was not 100% certain, but she was 85% certain that he had been the man. At some point during the course of her evidence, she accepted that the person she saw “looked like” the appellant, even although she did not think it was him.
[6] The defence led Bruce Duncan, a former scene of crimes of officer, in relation to “facial identification”. He too had reviewed the CCTV images and had met and photographed the appellant. He concluded that it was “unlikely” that the man shown in the images was the appellant, although he was not prepared to conclude that it was not him. Mr Duncan was asked to view the incriminee in court. He said that the incriminee resembled the man by impression, but he could not say that it was him without carrying out a detailed analysis.
[7] In due course the appellant gave evidence to the effect that he had not been involved in the incident. He accepted that he had been on the High Street on the relevant afternoon, although not at the particular time. He had been wearing what he described as his Buddy Holly glasses. He had also wetted his hair. Although he had previously sold bacon to some of the shopkeepers in the vicinity, there had been a period of a number of years when he had not been in Johnstone.
Charge
[8] The sheriff gave the standard direction on the jury being entitled to accept part of a witness’s evidence and to reject other parts. The sheriff stressed that the quality of the identification evidence was a critical issue in the case. She...
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