Muldoon v Herron

JurisdictionScotland
Judgment Date25 March 1970
Date25 March 1970
Docket NumberNo. 6.
CourtHigh Court of Justiciary

JC

FULL BENCH. L. J.-C. Grant, Lords Wheatley, Walker, Cameron, Milligan.

No. 6.
MULDOON
and
HERRON

Evidence—Sufficiency—Identification of accused—Failure of only two eyewitnesses to identify at trial—Evidence that accused pointed out to police by these witnesses at time of offence as persons implicated—Denial by one witness that accused among those pointed out or among those implicated.

At the trial of three accused the only two eye-witnesses of an offence gave evidence that soon after the offence they had pointed out to the police several of those implicated. Neither witness, however, identified the accused in court, and one deponed that the accused were not among those she had pointed out or among those implicated. The Sheriff-substitute did not believe her on this matter. Two police officers deponed that the accused were among those pointed out by both the witnesses, and the Sheriff-substitute believed this evidence. There was no other evidence to incriminate the accused. All were convicted.

Held by a Full Bench (diss. Lord Wheatley) that, since the witnesses had deponed that they had pointed out several of those implicated and the Sheriff-substitute had accepted the police evidence that the accused were among those pointed out, disbelieving the denial of the female witness on this matter, the evidence of identification was from two sources and therefore sufficient.

M'Gaharon v. H.M. Advocate, 1968 S.L.T. (Notes) 99,applied.

John Scott Muldoon, Robert Steen and John M'Leod were charged in the Sheriff Court at Glasgow on a complaint at the instance of Henry Herron, Procurator-fiscal, which set forth that, along with several others, "you did on 14th June 1969, in Wallacegrove Place, Glasgow, near Watt Street, form part of a disorderly crowd which did bawl, shout, curse and swear, run about the roadway, throw stones and commit a breach of the peace." The accused pled not guilty, but on 1st September 1969, after trial, the Sheriff-substitute (Peterson) found them guilty as libelled. At their request he stated a case for the opinion of the High Court of Justiciary.

The case set forth that the following facts were proved:—"(1) On 14th June 1969, at about mid-afternoon, a disturbance took place in Wallacegrove Place, Glasgow, which runs between Shields Road and Watt Street, and which is immediately adjacent to an area of vacant ground littered with bricks and stones. (2) A crowd of youths came into Wallacegrove Place from the direction of Shields Road towards two men, Ian and John MacDonald, who were walking towards the latter's home in the common stair at No. 3 Wallacegrove Place, near Watt Street. (3) The youths were aggressive in manner and were shouting. The cry of "Rebels," a Glasgow gang, was heard. (4) The youths spread over the roadway and on to the pavement. (5) Some of them threw bricks at Ian and John MacDonald, who were both struck on the head and injured. (6) The youths thereafter dispersed. (7) Ian MacDonald was removed to hospital, but John MacDonald, though injured also, declined to go. (8) At about 4.10 P.M. a further disturbance took place and the police were summoned to Wallacegrove Place, where a number of youths were seen running about near a betting shop. (9) They were promptly identified to the police as having taken part in the disturbance referred to in finding (1) by a Mr John Miller and Mrs Martha M'Ghie or Miller, his wife, residing in the common stair at 3 Wallacegrove Place. (10) The youths thus identified included each of the appellants. The police cautioned and charged them with the offence. None made any reply, and they were then put in the police vehicle. (11) While this was being done, Mr John MacDonald approached and also identified said youths, including each of the appellants, as having taken part in the earlier disturbance, in which he had been attacked. (12) The police examined the roadway where the earlier disturbance had been said to take place, and found it littered with bricks. (13) The youths, including the appellants, were taken to the Southern Police Office, where they were again cautioned and charged as libelled. None made any incriminating reply. (14) The crowd of youths mentioned in finding (2) was a disorderly crowd. The appellants were members of it, and thus committed a breach of the peace."

The case further stated:—"Evidence was given in this case by four witnesses. These were Mrs Miller, Mr John MacDonald, and Police Constables John M'Coll and Alexander Finnie. There was no doubt on the evidence of Mrs Miller and Mr John MacDonald that on the occasion of the earlier disturbance there had been a disorderly crowd at the locus acting in the manner described in the complaint. The question was whether the appellants had been proved to have been members of that crowd.

"Mrs Miller and Mr John MacDonald did not identify them at the trial. They gave every sign of being afraid to implicate anybody, to such an extent that I asked Mrs Miller if she was afraid. She replied that she could not afford to go on having her windows broken, as she had ten children to keep. It emerged that, according to her, two members of the crowd had been Tom Wallace and David Smith, whom she knew to be members of the Rebels gang, and who had previously broken her windows. She stated that she had identified these two persons to the police, who, again according to her, had attended after the first disturbance, and had taken away Wallace and Smith, who were now serving a prison sentence. A strong impression was given that she feared that, if she implicated anyone in the offence, her windows would be broken again. John MacDonald also said he could not identify anyone in court, but he admitted that he had identified participants in the first disorder to the police when they arrived later in the afternoon. He gave the impression of being afraid of further violence if he implicated anyone. Police Constables M'Coll and Finnie both described how, as narrated in findings (9) and (11), Mrs Miller and Mr John MacDonald had identified the appellants to them as having participated in the first disorder. (Mr Miller did not give evidence. I was told he had been summoned to join his father, who was ill.)

"I disbelieved, as being inspired by fear, evidence given by Mrs Miller and Mr John MacDonald that the appellants were definitely not involved in the offence, and that the police officers could have misunderstood their identification of the appellants at the locus, and I believed the evidence of the police officers that these witnesses had specifically identified the appellants to them at the locus. This police evidence appeared to me to put the case on all fours withM'Gaharon v. H.M. Advocate, 1968 S.L.T. (Notes) 99, in which police evidence was given that the panel had been identified shortly after the commission of the offence by two complainers who were unable to identify the panel at the trial. An appeal against conviction on the ground that the evidence was insufficient in law and inadmissible was refused, from which I inferred that the evidence before me was sufficient in law. I was satisfied as to its weight, and accordingly convicted the appellants."

The question of law for the opinion of the Court was:—"On the facts stated, was I entitled to convict the appellants?"

On 6th January 1970, after a hearing, the Court remitted to the Sheriff-substitute to state "whether Mrs Miller categorically denied, and persisted throughout in so denying, that the three appellants were persons (a) whom she had identified to the police as participants in the first disorder, or (b) who were in fact such participants; or whether she expressed any doubt thereanent or any inability to state whether the appellants were in fact such persons or not." The Sheriff-substitute answered both branches of the first question in the affirmative and the second in the negative.

Subsequently the Court remitted again to the Sheriff-substitute with the question:—"Is it the case that both Mrs Miller and Mr MacDonald were recalled to the witness-box and admitted that they had identified seven persons to the police?" The Sheriff-substitute answered in the affirmative.

The case was heard before a Full Bench of the High Court of Justiciary (consisting of the Lord Justice-Clerk, Lord Wheatley, Lord Walker, Lord Cameron and Lord Milligan) on 10th March 1970.

At advising on 25th March 1970,—

LORD JUSTICE-CLERK (Grant).—The three appellants were convicted in the Sheriff Court in Glasgow of forming part of a disorderly crowd, bawling, shouting and so on and committing a breach of the peace. It was clearly established that at the time and place libelled a number of youths were behaving in the manner charged. The question raised by the appeal is whether there was sufficient evidence to entitle the Sheriff-substitute to hold that the appellants were three of those youths.

Two eye-witnesses of the incident, Mr MacDonald and Mrs Miller, gave evidence. Both of them, very soon after the incident, identified to the police seven youths as having participated in the disturbance. According to the evidence of two police officers (which was led without objection and was accepted by the Sheriff-substitute) the youths thus identified included the three appellants. The seven youths on being identified were cautioned and charged and all, except one who was in hospital, were thereafter brought to trial.

At the trial Mr MacDonald and Mrs Miller, who gave every sign of being afraid to implicate anybody, did not identify any of the appellants. Mr MacDonald said that he "could not" identify anyone in court, although he admitted that he had identified seven participants in the disturbance to the police on their arrival. Mrs Miller, however, went further. Although she eventually admitted that she had identified seven participants to the police when they arrived, she was emphatic that the appellants had not taken part and were not among the...

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21 cases
  • Jamieson v Hm Advocate (No 2)
    • United Kingdom
    • High Court of Justiciary
    • 6 July 1994
    ...had that effect; and, accordingly, (3) that the evidence of the statement had been admissible; and appeal refused. Muldoon v. HerronSC 1970 J.C. 30 applied. Opinion that, in any event, the evidence of the witness was relatively unimportant in the context of the whole trial evidence and it w......
  • R. v. T.T. and S.L., (1997) 103 O.A.C. 15 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • 8 September 1997
    ...461 (C.A.), refd to. [para. 37, footnote 4]. R. v Swanston (1982), 25 C.R.(3d) 385 (B.C.C.A.), refd to. [para. 42]. Muldoon v. Herron, [1970] J.C. 30, refd to. [para. Jamieson v. H.M. Advocate, [1994] S.C.C.R. 610, refd to. [para. 45]. R. v. McCay (1990), 91 Crim. App. R. 84 (C.A.), refd to......
  • Luke Mitchell V. Her Majesty's Advocate
    • United Kingdom
    • High Court of Justiciary
    • 16 May 2008
    ...was not uncommon in Scots law, as when a witness spontaneously points out a suspect close to the locus of an offence (Muldoon v Herron 1970 J.C. 30). Similarly there was no authority which would suggest that the identification of the appellant from a selection of twelve photographs was inad......
  • A V. Her Majesty's Advocate
    • United Kingdom
    • High Court of Justiciary
    • 21 February 2012
    ...acceptable evidence of the truth of its contents. It is encountered most frequently in identification evidence, as eg in Muldoon v Herron 1970 JC 30, 1970 SLT 228. A clear statement of that rule is to be found in Jamieson v HM Advocate (No. 2) 1994 SCCR 610 at page 618 where the Lord Justic......
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