James Holland V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Hamilton,Lord Penrose |
| Court | High Court of Justiciary |
| Date | 16 June 2004 |
| Docket Number | XC783/03 |
| Published date | 16 June 2004 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Penrose Lord Hamilton
| Appeal No: XC783/03 OPINION OF THE LORD JUSTICE CLERK in APPEAL by JAMES HOLLAND Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: M E Scott QC, Latif; Drummond Miller WS
Respondent: Turnbull QC, AD; Crown Agent
16 June 2004
Introduction
[1]On 22 April 2002 at Glasgow High Court the appellant was convicted of inter alia two charges of armed robbery. The first robbery, to which charge (2) related, was committed on 4 September 2001 at a flat in Rutherglen. The appellant was charged with having acted with two unnamed persons. The complainers, John Lynn and Alison Gilchrist, were the occupiers of the flat. Both were registered disabled persons. The second robbery, to which charge (3) related, was committed on 9 September 2001 at shop premises in Carluke. The appellant was charged with having acted along with his co-accused, Steven Foy. The complainer, Stuart Simpson, was the manager of the shop.
[2]The court has already refused the appeal so far as it is based on the question of dock identification (Holland v HM Adv, 2003 SLT 119). The report of that decision sets out charges (2) and (3) and some of the background to the case. The appellant has insisted in two other grounds of appeal. They relate to the alleged failures of the Crown in its duty to disclose material information to the defence.
Charge (2)
The robbery
[3]The complainers were at home awaiting the return of Miss Gilchrist's son, Jamie. Miss Gilchrist answered a knock at the door and found three men there, one of whom had a gun and one of whom had a knife. One of them grabbed her by the hair and dragged her through to the livingroom where she was forced to her knees. Her assailant put his hand over her nose and mouth. Miss Gilchrist managed to explain that she suffered from asthma and lung disease and that he would kill her, but he continued to keep his hand over her nose and mouth. He was wearing latex gloves. One of the other assailants, identified as the appellant, held a gun at Lynn's left temple. He too was wearing latex gloves. The men then tied the complainers' hands. They cut the cable to Lynn's computer, thinking that this was the telephone cable. They demanded money and jewellery. They pulled a ring from Miss Gilchrist's finger and a chain from around her neck. They pulled a chain from around Lynn's neck. They were unable to remove all the rings from Miss Gilchrist's fingers and seemed to be preparing to chop off her fingers with a kitchen knife when her son arrived on the scene. All three men then ran off.
Pre-trial identification
[4]Lynn was unable, because of his defective sight, to identify any of the robbers. Miss Gilchrist attended an identification parade at which she picked out two stand-ins. Jamie Gilchrist attended an identification parade at which he identified the appellant, although there was later to be an issue as to whether he positively identified the appellant or merely recognised a resemblance.
The defence suspicions about the complainers
[5]Before the trial, the appellant told his counsel that he believed that the complainers on charge (2) were drug dealers and that they might be facing trial for drugs offences.
[6]By letter dated 29 January 2002 the defence solicitors enquired of Crown Office whether Lynn had outstanding criminal charges facing him and, in particular, whether he had been indicted or was due to be indicted in the near future. By letter dated 7 February 2002 Crown Office asked the defence solicitors to explain the basis on which the request was being made and its relevance to the defence of their client. By letter dated 22 February 2002 the defence solicitors notified Crown Office that their enquiries suggested that Lynn might have been the target of a robbery because of criminal activity on his part and associations that he had made in that regard. They believed that he had an association with the appellant's co-accused, and that evidence of Lynn's conduct and character might cast doubt on the appellant's involvement in the matters in hand. By letter dated 6 March 2002 Crown Office stated that it was not in a position to disclose any such information.
The evidence at the trial
[7]Both complainers spoke to the commission of the offence. Both identified Crown label (1) as being the gun used in the robbery or as being similar to it. Both said that the assailants had asked where the panic button was and that the existence of the panic button was not known outwith the family circle.
[8]In court, Miss Gilchrist identified both the appellant and Steven Foy, although Foy was not charged with charge (2). She identified the appellant as the man with the gun. She said that she had not been sure at the identification parade.
[9]In her evidence Miss Gilchrist said that one of the assailants asked her, "Where's the gear?" When asked if she knew what "gear" meant, she said that she did not know. In her police statement Miss Gilchrist had said that the assailant said, "Where's the drugs, where's the money?" Miss Gilchrist also said that one of the robbers asked her, "Where's the panic button?" She said that she did not know what he was talking about.
[10]When counsel for the appellant cross-examined her on her identifications at the parade, Miss Gilchrist explained that she had felt self-conscious, having heard laughter which she thought was directed at her. When she was asked if she was more likely to be accurate twenty two days after the event than she was at the trial, she replied "I think I am more likely to be accurate when I see them in front of my face, the two that was in my house and I know it was them." By this, I take it that she meant that she saw the accused directly in front of her at the trial instead of being behind a screen, as would be the case at the identification parade.
[11]Lynn confirmed that there was a panic button in the flat. He said that no one would have known about it, other than Miss Gilchrist and members of his own immediate family.
[12]Jamie Gilchrist identified the appellant in court as one of the robbers.
[13]Anne Lynn, Lynn's sister, was the girlfriend of Steven Foy. She was a Crown witness. She said that she knew about the panic button, as did everyone who came into the house. She lived in a flat owned by Lynn. The appellant had stayed overnight at that flat from time to time. At the date of the robbery, Lynn and Miss Gilchrist were on bad terms with her. On the day before the robbery, Lynn had served an eviction notice on her.
[14]Anne Lynn said that she was always falling out with her brother and that he always wanted her to look after drugs for him. She said that the two complainers were drug dealers and were involved in prostitution. This line of evidence was given in answer to questions by the advocate depute. The advocate depute did not suggest to Miss Lynn that her evidence on this point was untruthful.
The Crown case
[15]The Crown relied on the identification of the appellant in court by Miss Gilchrist and Jamie Gilchrist (cf Holland v HM Adv, supra); the fact that the appellant was found to be in possession of the gun which Lynn and Miss Gilchrist had identified at the trial; and the circumstantial evidence that the appellant had access, through his co-accused and Anne Lynn, to the special knowledge that there was a panic button in the flat.
The case for the defence
[16]The appellant's defence was that the identification evidence was unreliable. The question of a pending prosecution, or of the complainers' involvement in drug dealing, was not put to either complainer by the defence.
Charge (3)
The robbery
[17]Two men followed the complainer into the shop at 8 am when he was opening it. One of them put his arm round the complainer and held a gun to his left temple. They forced him upstairs into the cigarette room and pushed him to his knees. They forced him to open the safe. They robbed him of cigarettes, cash and telephone cards. They then locked him in the shop and escaped. The complainer identified label (1) as being the gun used in the robbery or as being similar to it.
Pre-trial identification
[18]The complainer attended an identification parade at which he identified two stand-ins.
The evidence at the trial
[19]The complainer identified the appellant and the co-accused as the robbers. He said that they wore latex gloves.
[20]The Crown led evidence that when the appellant was detained by the police six days after the incident to which this charge related, he was found to be in possession of label (1).
The Crown case
[21]Since the complainer was the only eye-witness to this charge, the Crown sought corroboration on a Moorov basis. The advocate depute relied on the fact that the two robberies were committed within five days of each other and that the modus operandi was similar in each case. In each case two robbers took part; a gun was used; and the robbers wore latex gloves. The gun was held against the left temple of Lynn and Stuart Simpson; and Miss Gilchrist and Stuart Simpson were forced to their knees.
The defence case
[22]The defence case was that the evidence of identification was unreliable, especially in view of the evidence of the identification parade.
Post trial events
[23]On 21 June 2002 Lynn and Miss Gilchrist appeared at Glasgow High Court on charges of dealing in heroin. Lynn pled guilty to a restricted charge The court was told that he had more than £3,000 hidden in a safe in his house and that he had £1,096 in his trouser pocket and sums of £600 and £188 hidden behind an electric cable in his road. He had been found with ten bags of heroin and was later caught selling a bag of heroin to an addict. The Crown accepted Miss Gilchrist's plea of not guilty.
[24]Since then, those acting for the appellant have established that Lynn and Miss Gilchrist appeared on petition on these charges on 12 July 2001. The...
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