Paul Alexander Macklin V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hodge,Lord Wheatley,Lord Mackay of Drumadoon |
| Neutral Citation | [2013] HCJAC 80 |
| Date | 11 September 2013,02 May 2013 |
| Court | High Court of Justiciary |
| Docket Number | XC384/12 |
| Published date | 30 May 2013,11 September 2013 |
| Year | 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Mackay of Drumadoon Lord Hodge Lord Wheatley | [2013] HCJAC 80 XC384/12 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in APPEAL AGAINST CONVICTION by PAUL ALEXANDER MACKLIN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: Jackson QC, Considine, Solicitor Advocate; Fitzpatrick and Co, Glasgow
Respondent: Wade AD; Crown Agent
11 September 2013
Introduction
[1] On 26 September 2003, the appellant was convicted after trial in Aberdeen High Court on two charges, one of contravening section 17(2) and (5) of the Firearms Act 1968 and the other of assault. The charges were in the following terms:
"(2) on 11 May 2003 at Printfield Terrace, the car park at the rear of Printfield Walk, on the flight of stairs leading from Printfield Walk to Clifton Road and on Hilton Terrace, all Aberdeen you did have in your possession a firearm or imitation firearm, namely a handgun: CONTRARY to the Firearms Act 1968, Section 17(2) and (5) as amended;
and
(3) on 11 May 2003 within the car park at the rear of Printfield Walk, on the flight of stairs leading from said car park to Clifton Road and on Hilton Terrace, all Aberdeen, you did assault Henry Ferguson, Sergeant and Simon Neil Reid, Constable, both officers of Grampian Police, Grampian Police Headquarters, Queen Street, Aberdeen and did repeatedly present a handgun at them."
[2] During the appellant's trial the evidence led by the Crown in respect of charges (2) and (3) sought to establish that both charges had been committed following on an earlier incident in a flat at 11b Printfield Terrace, Aberdeen, which had given rise to charge (1) on the indictment. At the close of the Crown case, the Crown withdrew charge (1), a charge of assault to severe injury with intent to rob, and the appellant was acquitted of that charge.
[3] On 26 September 2003 the trial judge imposed a sentence of 8 years imprisonment on charge (2) and a concurrent sentence of 15 years imprisonment on charge (3). On 22 April 2004, following an appeal to this court, the sentence on charge (3) was reduced to a concurrent sentence of 10 years imprisonment.
[4] In a report which he prepared for this court in connection with the appeal against sentence, the trial judge summarised the evidence led during the trial in the following terms:
"On 11 May 2003 at about 12.15pm police in Aberdeen received information to the effect that a stabbing incident had occurred at '11 Printfield Road'. Two officers, Sgt Ferguson, aged 32, and Constable Reid, aged 23, were on mobile patrol in the Printfield area, and discovered there was no such address as 'Printfield Road'. Having reached Printfield Terrace, they decided to make enquiries at No. 11 there, which is a tenement block of six flats. On the ground floor the door leading to the flat 11B was ajar and they pushed it open. A voice coming from behind the door of the living room into which they could not see asked who was there, and on their announcing it was the police they heard a scuffling noise which they took to be an indication that the persons were making their exit through the window at the rear of the flats. They moved to the tenement's common back door which led on to an open green area, and observed a man whom they later identified as the appellant beside the rear window. They told him to stop and he started to run away and chased by the officers. A person at the rear window within the flat who was covered in blood shouted 'that's him, get him, he's a bad man'. The officers chased the man for about 60 metres and were gaining on him when he stopped, turned and pointed a gun at them holding it in his right hand with arms outstretched, at a distance from them of about 5 metres. The man said "fuck off", turned and went up some steps, but the officers continued to follow him at a distance. At the top of the steps he turned again, pointed the gun at them in the same fashion and told them to fuck off. He did so again a short distance later, before running out of view down a side street. Before the officers reached the side street they heard the sound of a car with tyres squealing and the engine being raced. When they reached the street the man and the car had disappeared. The chase had lasted for about 11/2 minutes over a distance of about 300 metres, during which time the appellant, apart from stopping and pointing the gun at them three times, had also held the gun behind him pointing in the officers' general direction, and had glanced behind him several times. The officers both identified the appellant in court as the man concerned and they said they had no doubt whatever about their identification. They were shown photographs at Aberdeen police headquarters which enabled the police to ascertain the appellant's name and to trace and arrest him on 13 May at a hotel in Aberdeen where he had arrived and stayed the night on 12 May under a false name. The appellant gave evidence that at the material time on 11 May he had been at the house of a friend in Aberdeen, who gave evidence to the same effect. The jury's verdict indicated that this alibi was fabricated. A passerby who witnessed part of the chase, who in court betrayed signs of nervousness, said that the man being chased was of the same build and hair colour as the appellant but was not him. One of the occupants of the house, who had a considerable criminal record, said that he had been threatened by a masked man holding a gun at his head and demanding 'the money', but that the man who escaped from the window was not the appellant. The jury also rejected this evidence of identification."
The passerby referred to in the trial judge's summary was named Michael Reid and the occupant of 11b Printfield Terrace was named John Ronald.
[5] The summary of the evidence, to be found in the trial judge's report, was amplified by the contents of a joint minute entered into for the purposes of this appeal by counsel for the appellant and the advocate depute. The joint minute set out in fuller detail the evidence given by witnesses called on behalf of the Crown and by the appellant and the defence witness called to give evidence in support of the appellant's alibi. It recorded among other things that both police witnesses described the person whom they chased as having short dark hair and wearing a light-coloured long-sleeve top. It also recorded the cross-examination of the witness Ronald in which his evidence that he did not know the appellant appeared to be undermined by reference to his prior police statements which suggested that he knew that both the appellant and Thomas Pirie were in the flat where the assault occurred. The joint minute proved to be of assistance to the court and counsel are to be complimented for the effort they put into the preparation of that document.
Grounds of appeal against conviction
[6] On 3 September 2012 the appellant lodged a note of appeal against conviction. It contained three grounds of appeal. These grounds of appeal were developed in the case and argument dated 16 October 2012, which was lodged on behalf of the appellant. The case and argument was responded to in a written submission lodged on behalf of the respondent before the hearing of this appeal.
[7] The first ground of appeal on behalf of the appellant was based on the failure of the Crown to disclose to the appellant's lawyers, prior to the commencement of the trial, certain information in the hands of the police. As is clear from the trial judge's report the Crown case against the appellant during the trial had been dependent upon evidence given by each of Police Sgt Ferguson and Police Constable Reid that the appellant had been the man they had chased from Printfield Terrace to Hilton Terrace, Aberdeen and that he had presented a handgun at them. Both police witnesses made a dock identification of the appellant, no identification parade having previously taken place.
[8] The material the Crown failed to disclose prior to the trial fell into two categories. The first category was fingerprint evidence. A fingerprint of a named individual, Thomas Pirie, was found on the internal rear-view mirror of the black Ford Sierra car in which the gunman chased by the police officers had escaped and which was found abandoned by both the driver and the passenger in Moir Green Aberdeen, some distance to the west of Printfield Terrace. Another fingerprint of Pirie was found on a ceramic "bong", in the boot of the same vehicle. Pirie was known to the police and had a number of convictions. Neither the finding of Pirie's fingerprints nor his previous convictions were disclosed to the appellant's advisers prior to the trial.
[9] The second category of material the Crown failed to disclose comprised copies of police statements, all of which are dated prior to the appellant's trial. Those police statements had been taken by police officers from six individuals who had witnessed parts of the chase referred to in the trial judge's report or the subsequent abandonment of the car in Moir Green, when two men had emerged from the car referred to in the trial judge's report. Moir Green lies some distance from a lane leading from Hilton Terrace, where the chasing police officers had lost sight of the man they had been chasing and had heard a motor car driving off from the lane at speed.
[10] In the case and argument lodged on behalf of the appellant, it was contended in support of the first ground of appeal that had the fingerprint evidence relating to Pirie been available to those representing the appellant at the trial, it would have enabled them to have put forward an additional line of defence incriminating Pirie, to have led Pirie as a witness, and to have shown Pirie to the jury during the evidence of Police Sgt Ferguson and Police Constable Reid, as an additional means of assessing similarities in appearance between the appellant and...
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