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APPEAL AGAINST CONVICTION BY (FIRST) KYLE McCRAE AND (SECOND) JAMIE ANDERSON AGAINST HER MAJESTY'S ADVOCATE


Submitted: 12 May 2017

Web Blue HCJ

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 27

HCA/2016/000470/XC

HCA/2016/000487/XC

Lord Brodie

Lord Drummond Young

Lord Turnbull

OPINION OF LORD BRODIE

in

APPEAL AGAINST CONVICTION

by

(FIRST) KYLE McCRAE, and

(SECOND) JAMIE ANDERSON

Appellants

against

HER MAJESTY’S ADVOCATE

Respondent

First appellant:  Mitchell Adv;  McCusker McElroy, Paisley

Second appellant:  Collins, Sol Adv;  Collins & Co, Edinburgh

Respondent:  Niven-Smith AD;  Crown Agent

12 May 2017

Introduction
[1]        On 29 July 2016 at Paisley Sheriff Court, the first appellant, Kyle McCrae, was convicted by a majority verdict; and the second appellant, Jamie Anderson, was convicted by a unanimous verdict of a charge on indictment in the following terms:

“on 14 February 2016 at a lane running between Charles Avenue and High Street, both Renfrew you KYLE DONALD MCCRAE AND JAMIE ANDERSON did assault Barri Mason, now deceased, c/o the Police Service of Scotland and did pursue him, knock him to the ground, repeatedly strike him on the head and face with a knife or similar instrument and repeatedly kick him on the head and body, all to his severe injury and permanent disfigurement;

 

you JAMIE ANDERSON did commit this offence while on bail, having been granted bail on 13 January 2016 at Paisley Sheriff Court.”

 

[2]        The sheriff adjourned the diet for the preparation of Criminal Justice Social Work Reports.  On 24 August 2016 the first appellant was sentenced to 35 months’ imprisonment and made subject to a supervised release order for a period of 12 months.  On the same date the second appellant was sentenced to 34 months’ imprisonment, 4 months of which was for the bail aggravation, and made subject to a supervised release order for a period of 12 months.

[3]        The appellants appeal their convictions.  Leave has been granted to each in respect of one ground which is to the effect that given the quality of the identification evidence, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellants were the perpetrators of the offence.  While each appellant’s ground of appeal is in essentially the same terms as that of the other, they are expressed slightly differently in order to reflect the relevant evidence as it bears on the identification of the respective appellants.  The ground for the first appellant is as follows:

“Esto there was a technical sufficiency, it is submitted that given the quality of the identification evidence aforementioned that was before the court, and particularly the inconsistencies in the evidence led of the complainer’s identification, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was the perpetrator of the offence and in the circumstances the verdict of the jury ought not to stand and the conviction ought to be quashed.  In addition to these problems the Crown in its speech addressed the jury that the appellant had been positively picked out in a VIPER identification parade.  Although this was corrected in the defence speech, and ultimately the evidence is a matter for the jury this added a further element of confusion into the consideration of the jury to the evidence.”

The ground for the second appellant is as follows:

“Esto there was a technical sufficiency, it is submitted that given the quality of the identification evidence aforementioned that was before the Court, and in particular the fact that the witness Gray had effectively excluded the appellant from being the person she described to the police,  no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was the perpetrator of the offence and in the circumstances the verdict of the Jury ought not to stand and the conviction ought to be quashed.” 

 

Evidence at Trial
[4]        The evidence available to identify the appellants as the perpetrators of an assault in the terms libelled came from three sources: that of the deceased complainer, Barri Mason, admitted under section 259 of the Criminal Procedure (Scotland) Act1995, and spoken to by two police officers, PC Ross Laughlan and DC Gordon Thomson; and two eye witnesses, VL and SG. 

 

The Evidence of VL

[5]        The first witness was VL who was 14 years of age and a school student.  She gave her evidence from behind a screen and therefore was not asked to make any dock identification.  On 14 February 2016 she had been with her friend and fellow witness, SG, at the locus which she identified by reference to photographs.  She recalled seeing three boys running:  two of the boys were chasing the third.  They caught him.  She saw the boy who had been chased being punched.  He was then on the ground where he was repeatedly punched and kicked by both boys.  When asked to describe the two attackers, she said she could not remember because they had hoods on, although one of them was wearing a “onesie” (an all-in-one tracksuit).  She and SG walked up towards a nearby bar where she saw the boy who had been assaulted.  She said that she had spoken to the police that day to tell them what she had seen, and that the next day she had been shown an emulator sheet (Crown production 3) by the police.  She had selected image number 6 as showing one of the boys who had been chasing, punching and kicking the injured boy.  This was an image of the second appellant.  She was shown a second emulator sheet (Crown production 4) and confirmed that she selected image number 11 as showing the other of the boys who had been chasing, punching and kicking the injured boy.  This was an image of the first appellant.  The first appellant’s solicitor had objected to the leading of evidence of VL’s identification of the first appellant by reference to Crown production 4 because the first appellant’s was one of only two images on the emulator sheet showing persons wearing a garment with a hood (albeit not up).  He argued that it was unfair in that VL had described the perpetrators as wearing “hoodies”.  This information had not been included in VL’s police statement and accordingly the solicitor had not been alerted to the point in order to make an earlier objection.  Having considered the matter the sheriff repelled the objection.  VL confirmed that she had attended a VIPER parade in respect of the second appellant and that she had identified his image.  The second appellant was identified as being the male who had been punching and kicking the complainer. 

[6]        Under cross-examination for the first appellant, VL accepted she had not seen the first appellant before, nor had she previously seen the two appellants together.  She also accepted that their hoods were up at the relevant time and that she had not seen their faces but their hair.  It was put to her that the incident had happened quickly and that she might not be 100% accurate and that she might have made a mistake in her identification of the first appellant, to which she replied “yes”.

[7]        Under cross-examination for the second appellant, it was put to the witness that she had seen the second appellant before the incident. Initially she said she was sure she had not but later accepted that she could have previously seen the second appellant “hanging about the streets” with a young woman called Chelsea.  She accepted that it was possible that she had identified the second appellant from the emulator sheet and at the VIPER parade because she had seen him before.  She agreed that she did not get a look at the boys’ faces.

 

The Evidence of SG

[8]        SG was a friend of VL and was also 14 years of age.  She too gave her evidence from behind a screen and as had been the case with VL, was not asked to make any dock identification.  She recalled three males running at the locus, one in front and the others chasing.  She said that one of the males who was chasing was tall with red hair and a tracksuit, was thin and in his 20s.  She said that the other male was tall, with dark hair and wearing a “onesie”.  She confirmed that she subsequently attended an identification parade and did not pick anyone out.  She had been unable to attend a second parade because of a dancing competition.

[9]        SG described an assault by the two males who had been chasing the third male.  The red haired male tripped up the third male who was then punched on the ground.  She subsequently followed the third male to outside a public house where she saw him sitting in an ambulance.  He was bleeding from his cheeks.  

[10]      There was no cross-examination for the first appellant.  Under cross-examination for the second appellant, SG confirmed that she attended a VIPER parade but had said that the person with the red hair was not there.  She agreed that neither of the men she saw committing the assault were in the images.

 

The Evidence of PC Laughlan
[11]      At approximately 11.30 am on the morning of 14 February 2016, the constable and his colleague PC Keen received a report that a male had been assaulted at the High Street in Renfrew.  He and his colleague attended immediately.  The complainer had a slash to the right side of his face and a slash to the back of his head.  The constable said that the complainer gave his account of the attack some time after the arrival of the ambulance, and that it had taken 10 minutes for the ambulance to arrive.  He said that the complainer gave him the names Kyle McCrae and James Anderson.  The complainer said that he had been kicked from behind by James Anderson, whom he also described as “Fat Jambo”, causing him to fall to the ground, and that James Anderson had then “set about him” while he was on the ground.  He said that he had then been slashed by Kyle McCrae using a Stanley knife.  The constable said that the complainer gave him those names several times.  The complainer had said that he had been with Chelsea Troup and drinking with Stewart McClelland and James Anderson and that when he had left the house he had encountered Kyle McCrae.  He said that McCrae had gone with him to an address, that McCrae had offered him a fight and that McCrae had a Stanley knife.  Thinking he was going to be assaulted, the complainer said he pre-emptively punched McCrae.  Anderson then appeared from behind and kicked him to the ground.  Whilst on the ground Anderson had kicked him and McCrae had slashed him on the face with a Stanley knife.  The complainer said that the incident was a dispute over girlfriends.  The constable said that he had tried to obtain a written statement at the hospital but the complainer had refused, saying that he was not a “grass”.  The constable seized the complainer’s blood stained grey hood (Crown label 1) and his blood stained blue shirt (Crown label 2).

[12]      In cross-examination for the first appellant, the constable agreed that the complainer had not signed his notebook to confirm its accuracy.  He agreed that matters had not been written down when they were said, rather they were “bullet points”.  The constable agreed that in his notebook, the person named as Kyle McCrae was described as 5 feet 6 inches, skinny with a red birth mark below his eye, wearing a grey onesie.  As appeared from the notebook, the complainer had referred to the person named as Kyle McCrae as “baldy … in onesie”.  He agreed that there was a significant difference between that description and the appellant in the dock:  the appellant was approximately 6 feet, had no birthmark and thick dark hair. 

 

The Evidence of DC Thomson
[13]      DC Thomson spoke to the complainer in the Royal Alexandria Hospital.  The complainer said that he was not going to give a statement but when asked to repeat what he had told PC Laughlin he mentioned the names James Anderson and Kyle McCrae.  The complainer said that he had been slashed by Kyle McCrae.  DC Thomson described the complainer’s injuries.

 

Submissions

The First Appellant

[14]      Ms Mitchell appeared for the first appellant. She referred to the previously lodged case and argument.  She confirmed that the only ground of appeal in respect of which leave had been granted was that provided by section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, that the jury had returned a verdict that no reasonable jury properly directed could have returned.  Ms Mitchell reminded the court of the applicable law.  A jury verdict could be quashed only if the court was satisfied that, on the evidence lead at the trial, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was guilty:  King v HM Advocate 1999 JC 226.  The question to be asked was whether the verdict could have a rational basis, it being open to the jury on any such basis to reject a body of evidence inconsistent with the accused’s guilt precisely because it was inconsistent with Crown evidence that they had decided to accept.  It was not the function of the court in an appeal under reference to section 106(3)(b) to conduct a general review of the jury’s decisions or to make a determination on some general basis that the verdict was unsatisfactory:  Harper v HM Advocate [2005] HCJAC 23.  However, in exercising the jurisdiction conferred by section 106(3)(b), the court had been prepared to consider the reliability of identification evidence, the potential for injustice arising out of misidentification being well recognised:  Jenkins v HM Advocate 2011 SCCR 23 at paragraph 45.

[15]      It was Ms Mitchell’s submission that given the quality of the identification evidence, and particularly the inconsistencies in the evidence led of the complainer’s identification, no reasonable jury could have been satisfied beyond a reasonable doubt that the first appellant was the perpetrator of the offence. In the circumstances, the verdict of guilty ought not to stand and the verdict should be quashed. 

[16]      Ms Mitchell reviewed the evidence as summarised in the sheriff’s report.  The evidence of VL was that she had identified the first appellant from an emulator sheet.  It was a weak identification.  In her evidence, VL indicated that she could not provide a description of the assailants as they had been wearing hoods.  She had been unable to explain what it was about the first appellant that had allowed her to make an identification.  She had indicated that one had been wearing a “onesie”.  She had conceded that she might not be 100% accurate and that she might have made a mistake in her identification of the first appellant.  Moreover, given that the first appellant had been one of two persons on the emulator sheet shown wearing a garment with a hood, there was a significant risk of there having been a misidentification.  The Crown had not focused on these difficulties in its jury speech but rather had mistakenly suggested that VL had made a positive identification in a VIPER parade, a point which while corrected in the defence speech added a further element of confusion.

[17]      Ms Mitchell turned to what had been said by the complainer to PC Laughlan about the physical appearance of the person named by the complainer as Kyle McCrae:  5 feet 6 inches in height with a red birthmark under his eye and “baldy”.  This was entirely inconsistent with the appellant McCrae’s presentation:  he is 6 feet tall, does not have a birthmark on his face and has a full head of dark hair.  This was confirmed during the cross‑examination of PC Laughlin and in any event the jury were entitled to have regard to the first appellant’s appearance in court: Irvine v Donnelly 2012 SCCR 486.  Accordingly, there was nothing to link the complainer’s account to the actual person in the dock but the use of a particular name.  The complainer was not available for cross-examination.  His account, if accepted, could only be accepted in its entirety.  Given the weakness of the identification by VL and the description provided by the complainer being inconsistent in every respect with the physical features of the first appellant, no reasonable jury could have returned a verdict of guilt. 

 

The Second Appellant
[18]      Mr Collins, on behalf of the second appellant, accepted that VL had identified the second appellant Anderson both from an emulator sheet and at a VIPER identification parade, albeit that she had accepted that her identification might not have been identification of the appellant as the assailant, but rather a recognition based on seeing him “hanging around” in the area.  SG had given evidence in court that one of the assailants had red hair but at a VIPER parade she had excluded any of the images (which included an image of the second appellant) as being that of the red-haired male that she had seen.  The effect of that was that SG’s evidence of one of the attackers having red hair could not point to the second appellant.  The complainer had named one of males who attacked him as James Anderson and “Fat Jambo” but there was a problem with linking the name with the person in the dock.  In the result, as Ms Mitchell had submitted in respect of the first appellant, given the quality of the available evidence as to identification, no reasonable jury could have returned a verdict of guilt in respect of the second appellant.

 

Respondent
[19]      The advocate depute submitted that the appeals should be refused.  The evidence led at trial had provided a cogent framework for conviction.  The correct starting point was the account given by the complainer, Barri Mason.  He was clearly a reluctant witness;  he explained that he was “not a grass”.  However, he was found having recently sustained serious injury and he provided the names of the appellants as the two males who had attacked him.  As a result DC Thomson prepared emulator sheets including an image of the respective appellants which were then shown to the two 14-year old eye witnesses.  VL identified both appellants as the two males that she had seen attacking the complainer.  This was not just a coincidence but, rather, it provided a link between a particular Kyle McCrae and a particular James Anderson, these being the now appellants who had answered to an indictment in these names, and the persons referred to by the complainer.  SG had spoken to the attacker who did not have red hair as wearing a onesie.  The complainer had described the first appellant as wearing a onesie.  As is often the case there were inconsistencies in the evidence.  SG had said that the red haired person was not in the VIPER parade that she had viewed, whereas an image of the second appellant had been included.  However, it was open to the jury to accept or reject such parts of SG’s evidence as they chose, as they had been directed by the sheriff.  That the evidence against the second appellant had been stronger than that against the first appellant, as had been conceded, might explain why the verdict in respect of him had been unanimous whereas that in respect of the first appellant had been by a majority.  If that were so the verdicts might be regarded as the more discriminating, but in any event the jury were entitled to convict. 

 

Decision
[20]      The question for the court is whether by returning the verdicts under appeal the jury returned verdicts that no reasonable jury properly directed could have returned.  In our opinion that question must be answered in the negative.

[21]      There was clear eye witness evidence of an assault on the complainer by two males acting together.  The complainer being deceased at the date of trial hearsay of the accounts that he gave to the two police officers, PC Laughlin and DC Thomson, was admitted in evidence.  In these accounts the complainer confirmed that he had been assaulted in the manner described by the eye witnesses and he named the perpetrators as two males known to him as Kyle McCrae (a relatively distinctive name) and James Anderson.  As the advocate depute pointed out, it is uncontroversial that the first appellant is named Kyle McCrae and that the second appellant is named James Anderson.  The details provided by the complainer to PC Laughlin would indicate, or at least allow the inference, that the complainer had had an acquaintanceship with males of the name of Kyle McCrae and James Anderson, that the complainer had spent time in the company of this Kyle McCrae and this James Anderson and a woman by name of Chelsea Troup and that both the named males had a motive to assault him.  It is true that no evidence was led of the complainer having provided PC Laughlin with a physical description of the male named as James Anderson and that the physical description ascribed to the male named as Kyle McCrae not only did not match that of the first appellant but was clearly inconsistent with that of the first appellant.  However, that did not have the result that a rational jury had to disregard the fact that the complainer had identified one of his attackers as someone named Kyle McCrae or had to exclude the possibility that the person named by the complainer as Kyle McCrae was one and the same person as the first appellant.  Hearsay, such as the accounts given by PC Laughlin and DC Thomson of what was said by the complainer, must be treated with caution.  The sheriff so directed the jury in terms which were not criticised.  But once admitted, the hearsay evidence of a deceased person, like the evidence of any other witness, may be accepted in whole or in part.  It cannot be said that there was no rational basis upon which the jury might decide to lay aside that part of the complainer’s account which purported to be a description of the person named as Kyle McCrae.  It would have been apparent to the jury that the complainer was unwilling to assist the police; he was, as the advocate depute described him, a reluctant witness.  He told DC Laughlin that he was “not a grass”.  He refused to provide a statement.  It is at least possible that he was deliberately providing a misleading description or was at least not troubling to give the most accurate description of Kyle McCrae of which he was capable. 

[22]      Once DC Thomson had prepared emulator sheets including images of the appellants, being persons with the names given by the complainer, he showed them to the two eye‑witnesses.  VL was able to identify both images as those of the males that she had seen assaulting the complainer.  The jury were entitled to regard that as quite compelling evidence that the first appellant was the Kyle McCrae mentioned by the complainer and that the second appellant was the James Anderson also mentioned by the complainer and that they were the two males who had been seen assaulting the complainer, as libelled.  There was in addition the evidence of SG that one of the males was tall, red-haired and in his twenties, all of which was true of the second appellant.  While it is true that SG excluded that male as being shown at the VIPER parade, the jury were not bound to accept that she was correct to do so.  Moreover, as far as the second appellant is concerned he is also linked to the James Anderson referred to by the complainer through his association with one Chelsea Troup.  The complainer spoke of the person he referred to as James Anderson as having been in the company of Chelsea Troup. In cross-examination VL accepted that she might have seen the second appellant “hanging about the streets” with a young woman called Chelsea.  

[23]      The appeals were presented on the basis that there was a sufficiency of evidence as to identification.  The submissions on behalf of the appellants therefore came to be that the evidence of identification was so weak and inconsistent that no reasonable jury could have been satisfied that the appellants were the perpetrators of the offence.  We do not consider that this was so.  While her identification was subject to criticism and she accepted that she might have been mistaken, VL did offer definite identifications of each of the appellants.  The identifications were subject to the protection afforded by the witness being invited to look at twelve images on an emulator sheet.  That the first appellant was one of two shown wearing a garment with a hood but not with the hood up does not seem to us to take away from the fact that the witness was presented with twelve images from which to choose.  We were not impressed by Ms Mitchell’s criticism that VL was unable to explain what it was about the appearance of the two males that allowed her to make an identification.  We would suppose that that is a commonplace circumstance.  Even the most articulate of persons might find it difficult to describe the features which have led her to recognise someone.  Similarly, we do not consider that VL’s acceptance that the males had their hoods up and that she did not see their faces but their hair, can be taken too far.  VL was close to the attackers during the attack.  It may be supposed that she had the opportunity to view the attackers from a number of perspectives in the course of the incident.  While like any other stranger identification (assuming the identification of the second appellant to have been a stranger identification) based on what might have been a quite short viewing of a fast moving and alarming incident, the identifications by VL had to considered critically, as the sheriff directed the jury they should be, in our opinion the jury were not bound to find the identifications other than reliable.  It certainly cannot be said that there was no credible and reliable evidence which would have entitled the jury to return a guilty verdict.

[24]      The appeals on behalf of each of the appellants are refused.