Paul Mcinnes V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Lord Eassie,Lord Justice General |
| Judgment Date | 26 September 2008 |
| Neutral Citation | [2008] HCJAC 53 |
| Docket Number | XC686/05 |
| Date | 26 September 2008 |
| Court | High Court of Justiciary |
| Published date | 26 September 2008 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Nimmo Smith Lord Eassie | [2008] HCJAC 53 Appeal No: XC686/05 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by PAUL McINNES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Carroll, McClure, Solicitor Advocate; McClure Collins, Edinburgh
Alt: Stewart, A.D.; Crown Agent
26 September 2008
The prior proceedings
[1] The appellant was, with two others, on 13 December 2001 convicted after trial in the High Court at Glasgow of assault on Brian James Sweeney to his severe injury, permanent impairment and to the danger of his life and of his attempted murder. He was sentenced to imprisonment for eight years. He did not appeal against either his conviction or his sentence. He subsequently made an application to the Scottish Criminal Cases Review Commission which, after investigation, has referred his case to this court. Grounds of appeal were in due course lodged on behalf of the appellant.
The incident
[2] The incident which gave rise to the appellant's conviction occurred on 16 December 2000 outside premises known as the Duntocher Hotel, Duntocher, Dunbartonshire. A fight had shortly before broken out on the dance floor within the hotel. This had resulted in various persons, including the appellant, his two co-accused and the complainer, being forcibly ejected from the premises by stewards. Immediately upon his ejection the complainer was struck a blow to the head, administered by what was described by one witness as a "roundhouse" kick (a martial arts technique), as a result of which he was brought to the ground, where he was then set upon by a number of individuals. The crucial issues at the trial were the identities of the assailants, including that of the individual who had administered the "roundhouse" kick. The appellant at trial denied any part in the assault upon the complainer. While admitting that he had been in the hotel that evening, he lodged a special defence of alibi in relation to the incident outside it. He maintained that, having become aware that there was going to be trouble on the dance floor, he had decided to leave and had telephoned a friend to pick him up by car; the fight had broken out (in which he had played no part) and he had, with others, been ejected by a steward but, when outside, he had made his way to his friend's car and left in it. Evidence was given in support of that alibi.
The basis of the Crown case against the appellant
[3] So far at least as concerned the appellant, the Crown case depended on proof by witness identification that the appellant was one of the assailants. That proof rested exclusively on the evidence of two stewards, Craig McKernan and Brian Pearce; the complainer was unable to recall the events which led to the assault upon him. McKernan testified that he had seen the appellant and his co-accused assaulting the complainer as he lay on the ground. He described the appellant as wearing a cream or yellow shirt and light trousers. In evidence he was at first uncertain how the complainer came to be on the ground but later said that he had seen someone land an initial blow to his head. He did not describe the nature of that blow nor specifically identify the person who had administered it. Pearce testified that, when he had ejected the complainer from the hotel, he had seen the appellant and one of his co-accused standing outside, near the door. He described the appellant as wearing a black leather jacket, white T-shirt and jeans. He testified that he had seen the appellant administer the "roundhouse" kick to the complainer's head, which had brought him to the ground. When on the ground he had been kicked by the co-accused who had been with the appellant.
The basis of the appeal
[4] The Note of Appeal lodged by the appellant contained two grounds of appeal, each allegedly giving rise to "a miscarriage of justice", but at the outset of the hearing Mr Carroll on the appellant's behalf intimated that he was not to insist on the second of these (an alleged misdirection by the trial judge). The remaining ground (headed "Right to a fair trial") opens with the proposition that "there has been a violation of the appellant's rights in respect of paragraph 3(c), taken with paragraph 1, of Article 6 of the European Convention on Human Rights and thereby a contravention of section 6(1) of the Human Rights Act 1998 ...". A number of specific respects are then set out in which it is contended that the appellant's right to a fair trial was denied. These, broadly speaking, are concerned with alleged failures by the Lord Advocate to disclose prior to the trial material which, it is said, would have been of assistance to the defence of the appellant. Although some general contentions in respect of non-disclosure and certain particular non-disclosures in respect of the witness McKernan are set out in the Note of Appeal, Mr Carroll made it plain at the hearing that he was relying solely upon non-disclosure relevant to the evidence of Pearce. Accordingly, it was not maintained that the defence had been disadvantaged (or that there had been any other infringement of a Convention right) in respect of the identification by McKernan of the appellant as one of the assailants of the complainer. A minute was also lodged in which it was contended that the reference gave rise to a devolution issue in that "there was a failure by the Crown to follow a practice of disclosure of information and statements that would have been of material assistance in the defence of the appellant that has resulted in a miscarriage of justice by denying the appellant his right to a fair trial"; reference then is made to the Note of Appeal. Again the restriction of the scope of the complaint applies. Mr Carroll also made it plain that, in the circumstances of this case, he saw no difference between the Convention right to a fair trial and that right as provided for under the common law of Scotland.
The police enquiry
[5] At a relatively early stage in the police enquiry which followed the incident, attention as a suspect had focused upon, among others, a man called Gary Esdale (or Easdale). On 17 January 2001 an identification parade was held at Partick Police Station at which Esdale was paraded. He was at position 4. Pearce, having viewed the parade, was unable positively to identify any person there as having been involved in the incident but when asked if there was present anyone who resembled any such person he replied "4 or 6" (the latter being a stand-in). The basis of that resemblance was stated as being "shape of face". Suspicion having also centred upon the appellant, he was paraded on 2 August 2001, again at Partick Police Station. He was at position 3. Pearce, having viewed the parade, was again unable positively to identify anyone. When asked if there was anyone who resembled anyone who had been there he responded "number three". The basis of that resemblance was given as "facial features". The reports of each of these identification parades were lodged as Crown productions at the trial.
[6] In the course of the police enquiry a number of statements were taken from Pearce. The first was taken within a few hours of the incident. In it Pearce identified one of the co-accused as an assailant. He also described another male by appearance and clothing; neither description fitted the appellant. In a second statement taken later that day he is recorded as stating that the second man previously described had been involved in the fighting inside the hotel but that he (Pearce) had not at any time seen him attack the complainer. However, in addition to again identifying the co-accused as an assailant, he described the male who had delivered the blow which brought the complainer to the ground. That part of the statement reads:
"I would describe him as about 28-30 years of age, dark hair which was quite long, medium build, 5'9", wearing a black leather jacket and jeans, and a T-shirt".
As previously noted, Pearce on 17 January 2001 attended an identification parade where Esdale was paraded. Having viewed the parade and made the identifications by resemblance described above, he was interviewed by a detective sergeant. He is recorded as stating:
"... I identified the men standing at positions 4 and 6 as being similar to the persons to whom I referred to [sic] in my earlier statement to the police. Nos 4 and 6 looked very familiar and I would say that one of them was the guy that kicked Mr Sweeney on the face that night that resulted in him being knocked to the ground. I am unsure of this identification."
He was again interviewed after the identification parade on 2 August 2001, when the appellant was paraded. To a different officer he said:
"I identified the person at position number 3 as similar to the person I described to the police in my statement. This person had the same facial features as I described in my original police statement.
I cannot be sure if it was the same person as on the night who I have partially identified."
Precognition of the case
[7] The case having been reported to the procurator fiscal, it was precognosced. Pearce was seen by a precognition officer on 17 July 2001. In his precognition he is recorded as able to testify that, as he threw the complainer out, "... a guy with a leather jacket who I had seen inside earlier on but not involved in the fighting straight kicked [the complainer] on the face. ... It put [the complainer] right down on the ground."
[8] He is later recorded as describing "the guy with the leather jacket" as "being in his late twenties, dark hair which was not cropped but untidy, medium built, about 5 foot 9 inches tall wearing the black leather jacket, jeans and a white T-shirt". Precognosced about the identification parade on 17 January 2001 Pearce's prospective testimony is noted as being that during that parade:
"I was unable to...
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