RAYMOND FERGUSON v. HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice General Lord Philip Lord Reed | Appeal No: C891/99 OPINION OF THE COURT delivered by LORD REED in NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by RAYMOND FERGUSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: A.L. Brown; Clark Ferguson, S.S.C.
Respondent: Anderson, Q.C., A.D.; Crown Agent
26 September 2000
[1]The appellant and his co-accused, William Malone, stood trial at Edinburgh Sheriff Court on 20 December 1999 and succeeding days on an indictment containing two charges of assault and robbery. On 22 December 1999 the jury unanimously found each of the accused guilty as libelled in respect of both charges. The appellant has appealed against his conviction in respect of charge 1. The only ground of appeal argued on his behalf was in the following terms:
"The sheriff ought to have directed the jury to treat the evidence of identification with special care as errors have occurred in the past. There was a particular need to do so in the present case given the complainer's failure to identify the appellant at the identification parade. Accordingly there has been a miscarriage of justice."
[2]The sheriff narrates in his report that the complainer on charge 1 was David Hinnrichs, a 24 year old bar manager. In his evidence, he said that shortly after 6 p.m. on 13 September 1999 he was walking alone in South Clerk Street, Edinburgh, carrying some video cassettes. He was approached from behind by a person he identified in court as Malone. Malone asked him if he wanted to buy a video recorder. He said he did not. Malone then asked him if he wanted to buy a microwave. He said he did not. Malone was by this time in front of him. A second person, whom he identified in court as the appellant, then came up on his left and said, "Look, have you any money?" The appellant pulled out a syringe which appeared to be full of blood. The appellant was standing diagonally to Hinnrichs's left. Malone and the appellant appeared to be together. They stopped him from walking on. Hinnrichs demonstrated how the appellant had held the syringe in the palm of his left hand, with the needle towards him. The appellant told Hinnrichs that he was HIV positive and that if he did not give him money he would stab him. Malone was still standing in front of him. Hinnrichs took out his wallet and opened it. The appellant took £20 and Malone took £15. The two men started to walk off in opposite directions. Then the appellant called to Malone and both walked off together in the direction of the centre of Edinburgh. Hinnrichs said that he was shaken and frightened by what had happened. He went round the corner and was sick. He then walked to St. Leonards Police Station to report the matter.
[3]In relation to the identification of those responsible, Hinnrichs was asked in the course of his evidence to say if he could see his assailants in court. He identified both accused. He said what each man had done. The appellant was the one with the syringe. He said that he had no doubt whatever about his identification. He agreed that at an identification parade held shortly after the incident he had identified the co-accused Malone. He did not know why he had failed to identify the appellant, who was on the parade. He had never been to a thing like that before. He was nervous. He said that he was "absolutely certain" about his identification of both men in court. Under cross-examination by the solicitor for the appellant, Hinnrichs said that at the time of the identification parade he was still coming to terms with what had happened to him. He found the parade "quite scary". He understood, rationally, that the people on the parade were behind a screen, but it was a "surreal experience - you think that they can see you". The witness said that he probably did not take as much time to view the parade as he should have taken; he wanted to get out. He did not remember being asked if he saw anyone resembling the persons who had assaulted him or saying, "No one else" He did not identify the appellant in court simply because he had seen him at the parade. He had seen the appellant pull out a syringe and take his money.
[4]Hinnrichs was not asked how long the whole incident took. It started shortly after 6 p.m. on 13 September, when there would be daylight. His account of what happened indicated that the episode must have lasted a certain length of time at least, during which the complainer was confronted by and in close proximity to the appellant. At the end of the incident he watched the appellant walk off and then saw him turn and call to his co-accused to join him.
[5]Apart from the evidence of the complainer, the only other evidence in relation to charge 1 was given by a police constable who was on duty at the police station when Hinnrichs came in and made a complaint of assault and robbery. Hinnrichs had appeared very frightened and shocked. There was no other evidence directly relating to charge 1.
[6]The complainer on charge 2 was David Lennon, a 22 year old student. He said that he had been a passenger on a bus in the afternoon of 14 September 1999 (the day after the attack on Hinnrichs). He got on the bus at Dalry Road, Edinburgh and travelled to the Gyle Shopping Centre. He sat on his own upstairs, reading a book. A person, whom he identified in court as Malone, came and sat on the seat in front of him. Malone sat turned towards him and asked him questions about the book he was reading. A second person, whom he identified in court as the appellant, came and sat beside him and asked similar questions. He was asked if there was a lot of violence in the book and did he like violence. He said he did not. The appellant then showed him a penknife with the blade out. He had it in his hand, below the level of the seat in front. Lennon demonstrated how the appellant held the knife in his left hand. The demonstration was very similar to that given by Hinnrichs of how the appellant had held the syringe. The appellant said to him, "If I showed you this would you like violence?" The appellant told Lennon to give him his wallet. Lennon did so. There was no money in the wallet. The appellant looked through the wallet, handed it back and asked Lennon where he kept his money. Lennon took £1.20 in coin from his jeans pocket and handed it to the appellant. The appellant asked for the wallet again and found Lennon's bank card. The appellant suggested that he get off the bus with the two of them and go to get cash in a shop. The appellant asked Lennon for his PIN number but Lennon would not give it to him, saying he had no money. The appellant took out the knife again and said, "This says you are coming to a shop with us to get some money." After further threats, Lennon agreed to go with them to a bank at the Gyle and take out money. When the bus stopped at the Gyle, Malone and the appellant got off and Lennon followed. Before leaving the bus he told the driver that Malone and the appellant had robbed him. The driver used his radio and the police arrived shortly after. There was ample other evidence led to corroborate Lennon's evidence, and in particular his identification of the two accused as the persons who had robbed him.
[7]Although there was no direct corroboration of the evidence of Hinnrichs in relation to charge 1, the sheriff considered that it would be open to the jury to find corroboration of his evidence in the evidence of the witnesses who spoke to charge 2, on the basis that the jury would be entitled to hold that the two crimes were committed by the two accused as part of a course of criminal conduct systematically pursued and were linked by an underlying unity of purpose or intent. In particular, the sheriff noted that the crimes were closely connected in time, having been committed on successive days in the afternoon or the early evening. They were connected in place, both being committed in Edinburgh. They were connected in circumstances. Each crime involved the presentation of a weapon or weapons. The manner of the presentation of the weapon by the appellant, as demonstrated by the complainers, was very similar. The victims were each young men going about their business on their own in a public place. In each case, matters started with a conversation with the victim initiated by one of the two men. In each case, the second man approached the victim after the initial contact had been made by the co-accused, and then presented an implement at the victim. In each case, the conversation turned at this point from general conversation to a demand for money. In each case the victim had been frightened into handing over his wallet. In each case the appellant went through the wallet looking for money. The two assailants were the same in each case, and each played the same role in the concerted action. Before us, the sheriff's view that the Moorov doctrine could be applied was not criticised on behalf of the appellant.
[8]According to the sheriff's report, the appellant's solicitor, in his speech to the jury, concentrated on two main points. One was that the jury should not accept the evidence of the complainers, and the complainer on charge 1 in particular, identifying the appellant as one of the perpetrators of these crimes. In relation to that point, the appellant's solicitor founded strongly on the fact that Hinnrichs had failed to pick out the appellant at the identification parade. The other point was that even if the jury did accept the evidence of each complainer as to identification, they should not hold that the two crimes were so connected that they could treat the evidence of the complainers as mutually corroborative.
[9]In his charge to the jury, the sheriff's directions in relation to charge 1 were mainly concerned with the application of the Moorov doctrine. In relation to the evidence of Hinnrichs as to the identification of the assailants, the sheriff said:
"Now if you accept his evidence as being true and reliable it is evidence (a) that he was assaulted in the manner that is set forth in charge 1, and (b) that the two accused were the two people he was talking about...If you were left in any reasonable doubt about anything you would give the, about any part of the case, you would give the accused the benefit of that doubt. And indeed, whether or not you accept what the witness has said is entirely a matter for you. Whether their identification is accurate is a matter for you."
Similarly, in relation to charge 2, the sheriff said:
"You've got to be satisfied that Mr. Lennon wasn't making it up, or you would have to believe him on what happened and you would have to be confident that his identification of the two people was correct, and you'd have to be satisfied if you were going to convict on the basis of art and part that the two of them were acting together in the pursuance of a common criminal course of conduct, a common criminal purpose. If you are left in any reasonable doubt on any of that then you would give the benefit of the doubt to the accused, either or both of them as the case may be."
The sheriff also directed the jury to take into account everything that had been said to them in speeches, saying:
"Now you've heard the speeches, you've heard the way in which the case was presented by the lawyers when they addressed you, when they had their chance to address you on the facts of the case, and they did, and you should take into account everything that they said on the facts of the case and consider are these arguments good ones or not, how did they appeal to you, what's your view of the matter, taking into account all the considerations that were urged upon you by the people who addressed you."
[10]In his report to this court, the sheriff states that the defence point, that Hinnrichs failed to pick out the appellant at the identification parade, was a simple, clear and pertinent point. Not surprisingly, great stress was placed on the point by the appellant's solicitor when he came to address the jury. Although the sheriff states that he cannot exactly remember why he chose not to give the jury a special warning about identification evidence in this case, he thinks that he must have taken the view that the defence point was very clear, very simple and had been thoroughly ventilated in the course of the trial. He did not think that it required to be repeated by himself in his charge. It was the only point on which a plausible challenge to Hinnrichs's identification of the appellant had been mounted. It was up to the jury what to make of it. This was not a case where the witness had only a fleeting glimpse of someone in the dark or while the witness was intoxicated or otherwise impaired.
[11]In Bennett v. H.M. Advocate, 1976 J.C. 1, Lord Justice General Emslie, delivering the Opinion of the Court, dealt with a similar ground of appeal as follows (at page 4):
"The second submission for the appellant was that in any event the presiding judge misdirected the jury in respect that he failed to direct them as to the special need to be satisfied of the reliability of the type of evidence of visual identification described in the first submission. No doubt the value and weight to be given to this type of evidence requires careful assessment by a jury but there is, in our opinion, no legal requirement that a judge should give any special warning - as in the case of a socius criminis - as to the manner in which this evidence is to be treated by a jury."
Similarly in Chalmers v. H.M. Advocate, 1994 S.C.C.R. 651, Lord Justice General Hope, giving the Opinion of the Court, made it clear (at page 655) that it was in the discretion of the trial judge as to whether or not to make any observations as to evidence of visual identification:
"In our opinion, it was in the discretion of the trial judge as to whether or not to give the direction to which Mr. McBride referred [vide 'that evidence of this kind may be open to mistake and that it should be approached with care']. As the Lord Justice Clerk said in McAvoy v. H.M. Advocate, 1991 S.C.C.R. 123, where identification is in issue a trial judge may feel that it is desirable for the jury to be given guidance on this matter."
The Opinion of the Court in Kearns v. H.M. Advocate, 1999 S.C.C.R. 141 is to the like effect.
[12]In the circumstances of the present case, we find it impossible to criticise the sheriff for having omitted to give a warning in respect of the identification evidence given by Mr. Hinnrichs. The reliability of his evidence had been challenged by cross-examination and criticised in the appellant's solicitor's speech to the jury. The sheriff reminded the jury of the need to take account of such criticisms in considering the evidence. In our view, having regard to all the factors which we have narrated, the sheriff was entitled to take the view that the directions which he gave provided the necessary guidance for the jury.
[13]For these reasons the appeal is refused.