[2006] HCJAC 49

Appeal No: XC304/03

OPINION OF THE COURT

delivered by LORD OSBORNE

NOTE OF APPEAL AGAINST

CONVICTION

JAMIE HAGGERTY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Shead, McKenna; McCusker McElroy, Paisley

Alt: K. Stewart, A.D.; Crown Agent

25 May 2006

The background circumstances

[1] The appellant appeared for trial along with two other persons in the High Court at Paisley on 11 December 2002 and succeeding days. He faced two charges in the indictment, charges (4) and (5). In charge (4) the appellant, and James Scott Hendry Gardner were charged with assault and robbery at a post office premises at Lochfield Road, Paisley, on 12 March 2002. Charge (5), which was brought against George Andrew Sweeney and the appellant, was also a charge of assault and robbery said to have been committed at newsagents and a sub-post office premises at 82 Sycamore Avenue, Johnstone, also on 12 March 2002. The appellant was convicted on both of these charges. Subsequently he was sentenced to an extended sentence of 12 years duration, with a custodial term of 9 years and an extension period of 3 years.

[2 ] Following his conviction the appellant lodged a note of appeal against conviction on a number of grounds. However, leave to appeal was granted only in relation to ground 2. That ground of appeal was in the following terms:

"At the close of the Crown case a submission was made on behalf of James Haggerty in terms of section 160 of the Criminal Procedure (Scotland) Act 1995. The submission related to charge (4). The submission was repelled. The trial judge erred in law in repelling this submission. The evidence against Jamie Haggerty for charge (4) was a supposedly self corroborating special knowledge 'confession' by Jamie Haggerty. It is clear from the trial judge's charge to the jury (pages 66-68 and 73-74) that this was the evidence relied on by the Crown in relation to Jamie Haggerty for charge (4) and that the trial judge directed the jury that they were entitled to rely on said evidence. However the supposed 'confession' was actually a denial of the offence, albeit including information which might have been said to disclose 'special knowledge'. As the statement included no confession the submission in terms of section 160 of said Act should have been upheld. Esto the statement was correctly identified by the trial judge as a 'self corroborating special knowledge confession'; there was insufficient independent evidence to demonstrate the accuracy of the appellant's detailed knowledge of the circumstances."

The evidence in the case, so far as it was relevant to the appellant in relation to charges (4) and (5) is described in the trial judge's report to this court, to which, for convenience we refer. During the course of the debate before us, the accuracy of his account of the evidence was, with one qualification, accepted.

Submissions for the appellant

[3 ] Counsel for the appellant began by outlining the circumstances of the case. He explained that the incident which had given rise to charge (4) had preceded the incident to which charge (5) related on the day in question. The Crown case against the appellant in relation to charge (4) was purely of a circumstantial nature. The Crown's position had been that the appellant and his co-accused had both actively participated in the assault and robbery to which the charge related. The co-accused had been directly identified by certain witnesses, but had been acquitted on this charge. There was no direct identification of the appellant in relation to this charge. Counsel drew attention to the account of the evidence relating to it given in his report by the trial judge. The assault and robbery at the premises at Lochfield Road, Paisley had occurred at about 9.20 a.m. The premises contained a post office section and a shop section. The post office section of the premises had been manned by two witnesses, Struthers and Paton. The other counter there was manned by the shop owner, Rana. In addition, at the material time, two members of the public were in the shop, an elderly woman, Mrs. Munro, who was at the post office counter, and Mrs. Sharp, who was at the shop counter. All of these witnesses spoke to the assault and robbery. They stated that two male persons had entered the post office. Each had his face masked. One went up to the post office counter, which was protected by a glass security screen. The other went to the shop counter, behind which Rana was serving. These witnesses variously described the two robbers as being in possession of weapons. The robber at the post office counter was said by Struthers, Paton and Mrs. Munro to be holding a knife like the large curved bladed knife, Crown Label production 21. The robber at the shop counter was said by Rana and Mrs. Sharp to be carrying a weapon of similar length to Crown Label production 21. The trial judge had narrated the details of the commission of the offence. These included the removal of money from the till of the shop counter, which was placed in a blue plastic bag similar to Crown Label production 54. Following upon the commission of the offence, the two robbers left the premises. Struthers went out after them and noted a red car speeding away. Prior to the robbery a red car had been seen in the general vicinity with three occupants. It transpired that the co-accused was the registered keeper of this motor car. At about the same time as the car sped off following the robbery, a witness, Gilligan, saw a man running from Lochfield Road carrying a blue bag similar to Crown Label production 54 and holding up to his face what the witness described as a machete, resembling Crown Label production 21.

[4 ] Shortly after the robbery took place, at about 9.30 to 9.45 a.m., but at a point some distance from Lochfield Road, a civilian witness, Somerville, had been walking his dog along a public foot and cycle path near Newton Terrace. In an area of rough scrub beside the path he had seen an area of grass burning. He had also seen there what appeared to be a bundle of clothing, a bag and a baseball cap and also the burning remains of a knife. This last he had kicked away and he had then put out the fire. He had identified the area and the knife as those shown in Crown production 45. The knife had been recovered by police officers the following day and was Crown Label production 21. Its handle was burned. Struthers, who had noted the car speeding off, had described the driver as wearing a white baseball cap. He had taken down the registration number of the car and informed the police. As a result of that, the identity of the registered keeper was discovered.

[5 ] At about 9.50 a.m. police officers were instructed to go to the address of the co-accused at 44 Barterholm Road, Paisley. The officers arrived there about 9.55 a.m. The car was found parked at the rear of the building beside the entrance to it. The car was unlocked and empty. The bonnet of the car was still warm. In a refuse bin beside the car was found a mask, Crown Label production 33, which witnesses to the robbery identified as like one worn by one of two persons who had been in the post office and had been responsible for it.

[6 ] Upon finding the car, police officers made their way to the flat occupied by the co-accused. He was found to be in the flat alone. He was undressed and appeared as if he had got out of bed. A search of the flat was made. In the course of it, police officers recovered two empty knife sheaths from the floor at the foot of the bed in the bedroom. One of these sheaths was capable of holding the knife, Crown Label production 21, which had a distinctive curved shape, and the other of holding the second knife referred to in evidence, Crown Label production 34, which had a straighter blade.

[7 ] Struthers and Paton identified the co-accused as being the male at the post office counter, both at an identification parade held on 19 March 2002, and again in court. The witness Rana described the two males as being the same height, about 6 feet 1 inch. Mrs. Munro stated that the male at the post office counter seemed tall and she picked out two tall persons at an identification parade, who were 6 feet and 6 feet 1 inch in height respectively. Mrs. Sharp in evidence said that the second male was a bit smaller than the first one. She estimated the first man was 5 feet 9 inches in height and the second man was 5 feet 7 inches. At an identification parade on 19 March 2002 she picked out a male who was 6 feet 1 inch in height as being like the robber at the post office counter because of his height. Evidence was given by one Laura McBeth that both the appellant and his co-accused were about the same height.

[8 ] Counsel for the appellant explained that, at least in the view of the trial judge, there was some connection between the first and second robberies. The robbery to which charge 5 related had occurred at about 12.30 p.m. on 12 March 2002. Suffice it to say that the witness McBeth testified that she had driven the appellant and his co-accused on charge 5 to Cedar Avenue, Johnstone, where she parked her car. This was near the sub-post office premises at 82 Sycamore Avenue. The appellant and his co-accused on charge (5) had then left the vehicle. Two civilian witnesses, Bannon and Duncan, spoke to seeing Laura McBeth alone in the car. Bannon saw two men get out of the car with bags in their hands. He heard shouting and then saw the two men returning to the car, one of whom was holding boxes taken from the sub-post office and a knife. Duncan saw the two men running back from the direction of the sub-post office and get into the car. He gave chase to the car. That robbery involved the use of a machete like Crown Label production 34. Following the robbery to which charge (5) related, the car driven by McBeth set off at high speed. It was pursued by a police car. In the course of the chase, a knife was seen to be thrown from the car by one of the passengers. Laura McBeth testified that she thought that the co-accused in charge (5) had been carrying this weapon when he got back into the car after the robbery.

[9 ] There was one particular respect in which the account of the evidence given by the trial judge was challenged and appeared to have no basis in fact. At page 17 of his report he had stated that there was evidence that the second sheath found at 44 Barterholm Road fitted the knife, Crown Label production 34, which was identified as having been in the hands of and used by the appellant in the second robbery. It was submitted that there was no evidence to that effect and attention was drawn to the evidence given by Laura McBeth, to which reference has already been made.

[10 ] Reverting to the circumstances following the second robbery, the car chase came to an end when the car involved collided with a lamp post in Hallhill Road, Johnstone. The appellant and his co-accused in charge (5) were pursued on foot by police officers, by whom they were identified. They were subsequently detained.

[11 ] Counsel also made reference to evidence given by three police officers, Detective Sergeant Muir and Detective Constables Macpherson and Cameron concerning events later in the evening on 12 March 2002. Their evidence was to the effect that at about 10.30 p.m. the appellant had intimated that he wished to see C.I.D. officers. The officers went to see him. They were not concerned with the enquiry into the robbery to which charge (4) related. The appellant was cautioned. He then informed the officers that he wished to point out an area to them. Within the police office he made a voluntary statement, which was noted at the time, and in which he said:

"I didnae do the one in the morning. It was Jamie Gardner. He burnt the clothes he had been wearing and he threw away the knife but I'll show you where he threw it."

The appellant was then placed in a police car and under his directions the car was driven to Newton Terrace. He pointed towards the path and said that the area was "up there and you go to the right". He also informed the officers that the knife had a curved blade like a Gurkha knife. The police officers, who searched in the dark, did not find the knife and burnt articles on that occasion. However, they were subsequently found, in that general area.

[12 ] Counsel for the appellant went on to submit that the voluntary statement to which reference had been made could not be seen as a confession, let alone a special knowledge confession relating to the offence to which charge (4) related. In connection with this submission he referred to Beattie v H.M. Advocate 1995 S.C.C.R. 93, where consideration was given to the law relating to special knowledge confessions. He submitted that the principle relating to such confessions could not be applied in the circumstances of the present case, since there was no confession. The proper approach was to consider whether, on the basis of the whole evidence, there was sufficient evidence to demonstrate the guilt of the appellant on charge (4). His submission was that there was insufficient evidence for that purpose.

[13 ] Counsel went on to make submissions concerning the nature of circumstantial evidence, in connection with which he relied upon Al Megrahi v H.M. Advocate 2002 SCCR 509, particularly at page 529, paragraphs 31 to 36. In his submission the evidence available against the appellant in the present case did not meet the criterion set out in that passage. Having regard to the position taken up by the Crown at the trial, it was necessary for the Crown to show that the appellant had been one of the two people who had actually committed the robbery, as actors, in the post office premises, since they had not averred in charge (4) that the offence had been committed by the two accused in association with any unknown third person.

[14] Turning to examine the evidence which might be considered to be available to the Crown against the appellant, he dealt first with evidence about the height of the perpetrators of the assault and robbery. His submission was that that evidence did not assist the Crown. There had been no evidence before the court concerning the height of the appellant. Furthermore, the evidence given by witnesses in the post office concerning the height of the perpetrators was not consistent. As regards the voluntary statement made by the appellant to the police, in certain respects that statement was not consistent with what had been found by the witness Somerville when walking his dog. It was true that two sheaths for knife had been found in the flat of the co-accused in charge (4), where the appellant had been present the night before. However, no inference useful to the Crown could be drawn from that state of affairs. In all the circumstances the submission of no case to answer ought to have been sustained.

Submissions for the Crown

[15 ] The Advocate depute began by making clear that he was not contending that the voluntary statement made by the appellant amounted to a confession in relation to the offence to which charge (4) related. It had to be treated simply as an adminicle of evidence like others. Accordingly the principles relating to special knowledge confessions had no application to that statement. He also made clear that he accepted the observations of the court concerning the nature of circumstantial evidence in Al Megrahi v H.M. Advocate.

[16 ] Turning to the evidence itself, the Advocate depute accepted that there was no identification of the appellant by any of the witnesses who had been present in the post office and shop premises when the assault and robbery occurred. However, they had been able to give evidence about the heights of the two persons involved. He went on in detail to refer to the evidence given concerning those matters. A further important part of the evidence was the voluntary statement given by the appellant. He had taken the police to the area where the knife, Crown Label production 21, and other burnt objects were found. It could reasonably be inferred from the terms of the voluntary statement of the appellant that he had been present when the fire had been started by the co-accused in charge (4). That must have occurred within a very short period of time following the commission of the offence. It was submitted that that material was capable of giving rise to the further inference that the appellant had been involved in the commission of the offence.

[17 ] Further relevant evidence was the connection of the appellant with his co-accused's flat. There was evidence that the appellant had been at a party at that flat the night before the day of the robbery. The knife, Crown Label production 21, fitted one of the two sheaths which were recovered at 44 Barterholm Road, Paisley. However, the Advocate depute accepted that the passage at page 17 in the trial judge's report where it was indicated that there was evidence that the knife, Crown Label production 34 had been identified as being in the hands of and used by the appellant in the subsequent robbery, was erroneous.

Decision

[18 ] We have reached the conclusion that, when the submission of no case to answer was made under section 160 of the 1995 Act at the close of the Crown case, on behalf of the appellant, there was insufficient evidence to entitle it to be concluded that the appellant was one of the participants in the assault and robbery to which charge (4) related. Looking at the evidence relied upon by the Crown in arguing that there had been sufficient evidence against the appellant, we are of the view that the evidence as to the heights of the participants in the robbery to which charge (4) related, given by witnesses who were in the post office and shop premises at the time, possessed no evidential significance, since there was no evidence before the court as to the height of the appellant himself. Furthermore, there was material disparity between the evidence of different witnesses as to the heights of the participants. It is also important to note that none of the witnesses who spoke to the heights of the participants suggested that there was anything unusual or distinctive about the heights of those persons.

[19 ] As regards the voluntary statement made by the appellant to the police, narrated above, it was a matter of agreement between the parties that this could not be viewed as a special knowledge confession, since it was not a confession at all, at least in relation to the offence to which charge (4) related. What it amounted to was a statement to the police from which it could reasonably be inferred that the appellant had been present when the co-accused had set fire to the clothes that he had been wearing at the first robbery and the knife, Crown Label production 21. Despite the fact that that event must have occurred within a fairly short time of the commission of that offence, we do not consider that, even in association with the other evidence, it is capable of giving rise to the further inference that the appellant was also a participant in the robbery itself. It was noteworthy that there was evidence that there had been three persons in the red car which may have been used by the robbers to leave the scene of the robbery, whereas the Crown's allegation was that only two persons were involved in the commission of the offence.

[20 ] Turning to the matter of the appellant's presence in the flat at 44 Barterholm Road, Paisley at the party the night before the day of the robbery, we are at a loss to understand how any inference useful to the Crown can be drawn from that situation, particularly in the light of the fact that there was no evidence that the sheath, Crown Label production 34, and the knife which it was capable of holding, had been in the hands of the appellant following the second robbery, in the commission of which he had participated.

[21 ] In all these circumstances we have concluded that the trial judge erred in not sustaining the submission of no case to answer. It follows that the appellant's conviction on charge (4) must be quashed. The case will be continued for the purpose of consideration of an appropriate sentence in the light of the decision which we have just made.

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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Haggerty v. Her Majesty's Advocate [2006] ScotHC HCJAC_49 (25 May 2006) URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_49.html Cite as: [2006] HCJAC 49, [2006] ScotHC HCJAC_49

Scottish High Court of Justiciary Decisons

[2006] HCJAC 49

Appeal No: XC304/03

OPINION OF THE COURT