McHale v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Drummond Young,Lord Malcolm |
| Judgment Date | 31 May 2017 |
| Neutral Citation | [2017] HCJAC 35 |
| Date | 31 May 2017 |
| Court | High Court of Justiciary |
| Docket Number | No 2 |
Lord Justice-General (Carloway), Lord Drummond Young and Lord Malcolm
Advocate (HM) v Docherty 1980 SLT (Notes) 33
Andrew v HM Advocate 2000 SLT 402
Beacom v HM Advocate 2002 SLT 349; 2002 SCCR 33
Boyd v HM Advocate 2001 JC 53; 2000 SLT 1358; 2000 SCCR 962
Crombie v HM Advocate [2014] HCJAC 118; 2015 SCCR 29; 2015 SCL 144; 2014 GWD 36–669
Gillan v HM Advocate 2002 SLT 551; 2002 SCCR 502
Howden v HM Advocate 1994 SCCR 19
McLay v HM Advocate 1994 JC 159; 1994 SLT 873; 1994 SCCR 397
Wilson v HM Advocate [2016] HCJAC 70; 2017 JC 64; 2016 SCCR 425; 2016 SCL 785; 2016 GWD 28–505
X v Austria (2742/66) (1966) 9 YB 550
Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd Grierson ed, T & T Clark, Edinburgh, 1887), vol I, para 363
Walker, AG, and Walker, NML, The Law of Evidence in Scotland (1st ed, W Hodge, Edinburgh, 1964), para 37
Walker, AG, and Walker, NML, The Law of Evidence in Scotland (4th Ross and Chalmers ed, Bloomsbury Professional, Haywards Heath, 2015), para 9.9
Justiciary — Evidence — Sufficiency — Identification — Circumstantial evidence — Accused charged with forming part of group engaged in thefts occurring several weeks apart — Whether sufficient evidence to link each accused to each crime
Justiciary — Procedure — Trial — Co-accused pleading guilty in course of trial — Schedule of previous convictions of co-accused tendered to court prior to verdict of jury in relation to remaining accused — Whether prejudicial to remaining accused — Whether miscarriage of justice
Joseph Francis McHale and Charles Schruyers were indicted along with two co-accused at the instance of the Right Honourable Francis Mulholland QC, Her Majesty's Advocate, on an indictment libelling, inter alia, charges of theft by opening lockfast places. On 19 May 2016, following trial at the High Court of Justiciary in Glasgow, before Lady Scott, the appellants were convicted of several charges and were sentenced to twelve-and-a-half years' and thirteen years' imprisonment respectively. The appellants appealed against conviction to their Lordships in the High Court of Justiciary.
The appellants were indicted and tried with a co-accused in the High Court of Justiciary in relation to a several charges of theft by opening lockfast places, namely automated teller machines in the Aberdeenshire area. The thefts took place between August and November 2013. The evidence linking the appellants and the co-accused to certain of the events was circumstantial. In the course of the trial, the co-accused pled guilty to three charges. At the conclusion of the Crown case, the appellants each made a submission of no case to answer on the basis that there had been insufficient identification. The trial judge repelled the submissions and the appellants were thereafter convicted of eight charges. The appellants appealed against conviction.
The first appellant argued that the tendering to the court of the schedule of previous convictions of the co-accused in the course of the trial had been prejudicial in that it showed that the appellant had associated with a known criminal. The trial judge's directions not to regard the plea as evidence had been insufficient to cure the error. Both appellants argued that the trial judge had erred in repelling their submissions of no case to answer. There had not been sufficient evidence of identification. It was not enough to show participation as part of a group on one occasion where there was no identification of the appellants being members of the group on another occasion. The evidence had not shown that the thefts had been committed by the same group of men.
Held that: (1) the disclosure of the convictions of a co-accused could not be regarded as a breach of the rights of another accused and no miscarriage of justice had occurred as a result of the schedule being tendered prior to the jury's verdict in respect of the appellants (paras 22, 23); (2) if an accused was demonstrated to have committed a particular offence, alone or as part of a gang, and it was demonstrated that another identical offence had been committed then depending on circumstances, such as the extent of the identical features of the offences and their proximity in time and place, that might suffice to prove that the accused perpetrated both offences (para 26); (3) where near identical crimes are committed in similar locations over a period of weeks rather than on the next day or two, it may not be legitimate to conclude that they were committed by the same persons, albeit that they were perpetrated by a gang under the same leadership (para 27); (4) in the present case, the similarity in the crimes in which the appellants were implicated was not sufficient to establish their guilt of very similar offences and occurring more than one month before, or thirteen days after (paras 29, 30); and appeal allowed and certain convictions quashed.
Observed that when a co-accused pled guilty in the course of a trial, it was better practice to leave the tendering of any schedule of his previous convictions until after a jury's verdict in respect of the remaining accused (para 23).
Gillan v HM Advocate 2002 SLT 551 followed.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), Lord Drummond Young and Lord Malcolm, for a hearing on 28 April 2017.
At advising, on 31 May 2017, the opinion of the Court was delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[1] On 25 April 2016, at the High Court, Glasgow, the appellants, along with Robin Vaughan, went to trial on a series of charges generally involving successful and unsuccessful attempts to force open automated teller machines (‘ATMs’) in the Aberdeenshire area between August and November 2013. There was also a charge (22) of theft of golf equipment, including Galvin Green golf clothing, from the Paul Lawrie Golf Centre on South Deeside Road on 26 October 2013. Another co-accused, Peter O'Brien, failed to appear.
[2] During the course of the trial, Mr Vaughan pled guilty to charges 2, 9 and 10 (infra). On 19 May, the appellants were convicted of these charges and charges 15, 22, 24, 25 and 27. The charges involved ATM machines on the following dates at the specified locations:
| Charge |
Date (all 2013) |
Location |
| 2 |
26 August |
Co-op, Mintlaw |
| 9 |
18 September |
RBS, New Deer |
| 10 |
19 September |
Co-op, Bieldside |
| 15 |
25 October |
Clydesdale Bank, Ellon |
| 24 |
28 October |
Clydesdale Bank, Stonehaven |
| 25 |
28 October |
Bank of Scotland, Inverurie |
| 27 |
10 November |
Lloyds TSB, Oldmeldrum Road (Rucksburn) |
[3] On 5 August 2016, Mr McHale was sentenced to twelve-and-a-half years' imprisonment (reduced from 13 years to take into account an interrupted period in custody); Mr Schruyers was sentenced to 13 years; and Mr Vaughan to 11 years.
[4] The crimes involving the ATMs were described by the trial judge as a ‘highly distinct — if not unique — course of conduct’. Eyewitnesses spoke to seeing up to four dark clothed persons acting in concert. They involved targeting small Aberdeenshire towns in the hours of darkness, placing tape over any cameras at the loci, using crow bars to break into the premises and introducing gas and wiring into the ATMs with a view to blowing them up and stealing the money inside. The modus operandi required a degree of expertise to improvise a hot wire ignition system, the wires being heated by a battery and attached to matches. Some £21,000 was obtained from the events in charge 9 and...
To continue reading
Request your trial
-
Douglas v HM Advocate
...v HM Advocate 1994 SCCR 19 Lawler v Neizer 1993 SCCR 299 McGaw v HM Advocate [2019] HCJAC 78; 2019 GWD 37–600 McHale v HM Advocate [2017] HCJAC 35; 2018 JC 11; 2017 SCCR 427; 2017 SCL 866; 2017 GWD 27–438 Moorov v HM Advocate 1930 JC 68; 1930 SLT 596 R v Straffen [1952] 2 QB 911; [1952] 2 A......
-
Mohammed Ashif Aliah Ashraf Appellants against HM Advocate Respondent
...2000 SCCR 962 Crombie v HM Advocate [2014] HCJAC 118; 2015 SCCR 29; 2015 SCL 144; 2014 GWD 36–669 Gillan v HM Advocate 2002 SLT 551 [2017] HCJAC 35 Lord Justice-General (Carloway), Lord Drummond Young and Lord MalcolmNo 2 McHale and HM Advocate Cases referred to: Advocate (HM) v Docherty 1......
-
Fingerprint Comparison and Adversarialism: The Scientific and Historical Evidence
...of error with the process of31 RvAnwar [2015] EWCA Crim 294 at [3] (italics added). See also the Scottish case of McHalevHM Advocate [2017] HCJAC 35 at [30].32 RvToz e r a n d P o p e [2002] EWCA Crim 966 at [11] (italics added).33 RvGregg [2003] EWCA Crim 387 at [3] (italics added).34 Comp......