Joseph James Savage Mcclymont V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Lord MacLean,Lord Osborne |
| Neutral Citation | [2006] HCJAC 47 |
| Court | High Court of Justiciary |
| Published date | 15 June 2006 |
| Date | 25 May 2006 |
| Year | 2006 |
| Docket Number | XC1324/03 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Osborne Lord Nimmo Smith Lord MacLean | [2006] HCJAC 47 Appeal No: XC1324/03 OPINION OF THE COURT delivered by LORD OSBORNE in NOTE OF APPEAL by JOSEPH JAMES SAVAGE McCLYMONT Appellant; against HER MAJESTY'S ADVOCATE Respondent: ______ |
Act: Shead; Lavery Smith, Glasgow
Alt: K. Stewart; Crown Agent
25 May 2006
[1] On 23, 24 and 27 October 2003, the appellant went to trial on a charge of assault and robbery, having previously pled guilty to the other charge on the indictment, a contravention of section 27(7) of the Criminal Procedure (Scotland) Act 1995. On 27 October 2003 he was found guilty of that charge, under deletion of the words "and permanent disfigurement". The terms of the charge on which the appellant was convicted were as follows:
"On 20 February 2002, at Farmeloan Road, Rutherglen, Glasgow you did assault Thomas Parker ... and did present a screwdriver or similar instrument at him, threaten to stab him, push him against a wall, strike him on the body with said screwdriver or similar instrument to his injury, seize hold of his taxi keys, demand his money box in exchange for said keys, demand money from him and did rob him of a box and £35 or thereby of money."
Following conviction, on 22 December 2003 the appellant was sentenced to 12 months imprisonment on that charge.
[2] At the trial, two witnesses were led by the Crown. These were the complainer, Thomas Parker, and Police Sergeant James Matthews. Two witnesses were led on behalf of the appellant, the appellant himself and his girlfriend, Jan Mitchell. A special defence of alibi had been lodged on behalf of the appellant, which was to the effect that, at the time of the alleged assault and robbery, he was within flat 3/2, 23 Farmeloan Road, Rutherglen, Glasgow. The appellant lived at that address, along with his girlfriend and her mother, whose flat it was. Miss Mitchell was a prostitute who plied her trade in Glasgow city centre.
[3] The complainer was a married man, with a family. At the time of the offence he was a taxi driver. He testified that, in the early hours of 20 February 2002, he had picked up Miss Mitchell in Glasgow city centre and taken her to her home in Farmeloan Road. He accepted that he had known that she was a prostitute and that he had previously taken her home. According to the complainer, Miss Mitchell had told him that she had no money and had asked him to come up to her house in order to be paid. He had done so, taking with him his money box from the taxi. In the house, Miss Mitchell had taken him to a bedroom and had then come in and paid him. He had then left the flat and descended the stairs, taking his money box with him. As he was approaching the close door, a man armed with a small screwdriver had come into the close, threatened to stab him and pushed him against the wall. In the course of a struggle, he had been struck on the body with the screwdriver, sustaining an injury. He had also dropped his taxi keys, which his attacker had picked up. His attacker had demanded that he hand over his money box in return for the keys and, fearing the loss of his taxi more than the loss of his money, he had done so. His attacker had then left the close and run off. The complainer had driven to Rutherglen Police Office, which was very close by, and had told the officer there what had happened. This officer had left the police office with him and the two of them had headed back to 23 Farmeloan Road in a police car. As they were approaching this address, the complainer's attacker had come around the corner of the building, carrying the complainer's money box, and had gone up to and entered the close at No. 23. The complainer and the police officer had made their way to the close door. As they opened the door, the police officer had passed the complainer and had gone up the stairs after the complainer's attacker. Behind the door, the complainer's money box and money had been found lying scattered on the floor. The complainer had followed the officer upstairs. The front door of Miss Mitchell's flat had been open, and through the door he had been able to see the person who had attacked and robbed him sitting on a settee. In relation to identification, the complainer positively identified the appellant in court as his attacker. He positively identified Crown Label 1 as the jacket worn by his attacker. He identified Crown Label 2 as his money box.
[4] In cross-examination it was put to the complainer that, far from going to Miss Mitchell's flat to obtain payment of her taxi fare, he had gone to have sex with her. He was asked why Miss Mitchell could not have paid him from her night's earnings, and, in any event, why he had required to spend some time in a bedroom. It was also put to the complainer that he and Miss Mitchell had had previous sexual encounters. These matters the complainer denied. In relation to the assault and robbery, it was put to him that he was mistaken in identifying the appellant as the person who had carried out any assault and robbery of which he had been the victim. Questions affecting the reliability of his identification were put to him.
[5] Police Sergeant James Matthews testified that he had been on duty at Rutherglen Police Office when the complainer had appeared in the office. He had complained of having...
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