Appellant: Ogg, Solicitor Advocate; Allan McDougall, Edinburgh

Respondent: Mitchell, A.D.; Crown Agent

27 February 2009

[1] The appellant went to trial, on indictment, at Glasgow Sheriff Court on 7 March 2006 on three charges involving the same complainer, Thomas Thomson. The charges were in the following terms:

"(1) on 25 July 2004 at Barlanark Road, Glasgow, you while acting with others, did assault Thomas Thomson ... and did punch and kick him to his injury:

you did commit this offence while on bail, having been granted bail on 20 May 2004 at Glasgow District Court.

(2) on 25 July at Millbeg Place, Glasgow and Barlanark Road, Glasgow, you did assault Thomas Thomson ... threaten violence to him and pursue him;

you did commit this offence while on bail, having been granted bail on 20 May 2004 at Glasgow District Court; and

(3) on 26 July 2004 at Millbeg Place, Glasgow, you did assault Thomas Thomson ... and did stab him on the body with a knife to his severe injury, permanent disfigurement and to the danger of his life;

you did commit this offence while on bail, having been granted bail on 20 May 2004 at Glasgow District Court."

At the close of the Crown case the procurator fiscal depute advised the court that he was no longer seeking a conviction in respect of charges 1 and 2 and the appellant was duly acquitted of those charges.

[2] On behalf of the appellant, a submission was made that there was no case to answer in respect of the third charge. In essence the submission was that there was insufficient evidence to identify the appellant as the perpetrator of the assault. The sheriff repelled this submission. The appellant was, in due course, convicted by a majority of the jury in respect of charge 3. After having adjourned the diet for the purpose of receiving reports the sheriff sentenced the appellant on 31 March 2006 to four years imprisonment.

[3] Two grounds of appeal passed the sift in this case. In the event, however, the solicitor advocate for the appellant, Miss Ogg, advised the court at the beginning of the appeal hearing that she intended to argue only the first of these, namely that "the sheriff erred and misdirected himself in repelling the submission of 'no case to answer' made on behalf of the appellant".

[4] The appeal hearing, in this case, commenced on 17 July 2008. In the course of that hearing, very significant difficulties emerged in relation to the transcripts of the evidence which had been ordered in this case. In particular, potentially significant passages of the evidence of key witnesses were marked by the transcriber as "inaudible". It was apparent to both the court and the parties' representatives that it would not be possible to dispose of the appeal until some attempt was made to ascertain what the evidence of the witnesses in question was. To this end it was agreed that the appellant's solicitor advocate and the Advocate depute would listen to the tapes of the trial proceedings, with a view to clarifying and, if possible, agreeing what the evidence, which was marked as "inaudible" in the transcripts had been. We are very grateful to Miss Ogg and the Advocate depute for carrying out this task which resulted in significant agreement between them as to what the evidence was, which agreement was signified by the inserting of missing words in the blanks left by the transcriber. Moreover, parties' representatives produced, for the assistance of the court, a document which was said to be an agreed summary as to the evidence of certain of the key witnesses in relation to the point that arose on appeal. The work done by both sides in these respects has been of considerable assistance to the court in dealing with this case.

[5] The evidence of the complainer Thomas Thomson, in this case was set out in summary, in the learned sheriff's careful report, as follows.

"On the day in question he [the complainer] had been drinking in the afternoon and evening in various public houses in the Balornock area of Glasgow with a companion, one Robert Gallagher. Over the course of that afternoon and the evening the complainer consumed about seven pints of lager. He described himself as not sober, but not drunk, being able to run, walk and focus. On emerging at closing time from Morgan's Public House the complainer and his companion Robert Gallagher were involved in some sort of skirmish involving, inter alia, the appellant and the witness, Robert Wilson. The result was that the complainer sustained a bloody nose and ran off, being pursued first to his mother's house, and then later to the house of his brother Tony Thomson. The complainer persuaded his brother, who was at that time in bed in order to be ready for work the next day, to get up and assist him in looking for his companion Robert Gallagher whom he thought had been 'getting a doing'. The complainer armed himself and his brother with a golf club each and they went out in search of Robert Gallagher.

They encountered Robert Gallagher in the company of his wife, and two sisters of the witness Robert Wilson, on waste ground at the top of a flight of stairs leading down behind Millbeg Place. Robert Gallagher appeared to have a bleeding nose. Shortly thereafter the appellant and the witness Robert Wilson appeared together at the foot of the stairs. They appeared to be unarmed. The appellant was holding a carrier bag containing cans of beer. As the appellant and his companion, Robert Wilson, appeared at that stage to be unarmed, the complainer gave over his golf club to one of the women at the top of the stairs, and sought to enquire what had been the cause of the earlier trouble.

There was a central barrier in the middle of the flight of stairs running down its entire length. Words were exchanged which led to Robert Gallagher going down the stairs on the right hand side of the central barrier and engaging in a struggle with Robert Wilson.

The appellant was at this time standing about half way up the stairs on the opposite side of the central barrier. He did not appear hostile but merely stood holding a carrier bag containing cans of beer. The complainer came down the stairs on the left hand side of the central barrier on the side where the appellant was. As the complainer approached, suddenly and without warning the appellant pulled out a knife from his jacket and stabbed the complainer in his lower ribs on the left hand side of his body. The complainer acknowledged that he did not see the knife, but he had not been struck merely with a punch as he had felt the knife get through his skin and being pulled back out. He was in no doubt that it was the appellant that had stabbed him as there was no one else there. The complainer went back up the stairs and as he did so he said to his brother, 'I've been stabbed'. The complainer pulled up his shirt to look at his injury and part of his bowel came out into his hand. At the top of the stairs he collapsed and blacked out."

[6] The starting point, therefore, was a clear unequivocal identification of the appellant by the complainer as being the person who perpetrated the assault upon him, which became the subject matter of charge 3. The question for the sheriff to decide in addressing the submission of no case to answer was whether there was corroboration of the complainer's evidence that the accused was his assailant. It is the case that the evidence of the witnesses who were led by the Crown to provide that corroboration, as being persons in the vicinity when the assault took place, was at times, incoherent, confused and confusing. Miss Ogg for the appellant took us carefully through this evidence, under reference to the book of photographs of the locus which was part of the evidence at the trial. In focussing on the evidence relating to who was where and when on the stairway on which the assault took place, she pointed to apparent confusion and discrepancies that arose from that evidence. She submitted that the adminicles of evidence relied upon by the Crown were insufficient to corroborate the complainer's evidence as to the appellant being his assailant, because the Crown had failed to establish exactly at which point in the sequence of events when the assault took place, exactly where on the stair the assault took place and who was on the stair at that time and had failed, accordingly, to exclude every other person who could have stabbed the complainer.

[7] The Advocate depute accepted that the evidence of the witnesses who were at the locus at the time of the assault was, at times both confused and confusing. But there was a clear and unequivocal account of the assault given by the complainer himself. The question was, then, what other evidence, if any, was there to corroborate that account. The question was not who else might have committed the assault but whether there was sufficient evidence to support the complainer's account as to who carried it out. As far as the evidence went there was no suggestion from any witness that anyone else but the appellant had carried out the attack. There was evidence from the witness Tony Thomson that at the time of the attack only the appellant and the complainer were on the same side of the steps, at about the same point on those steps, near to a yellow beer can which was standing upright on the steps as shown in one of the photographs of the locus. The thrust of the other witnesses' evidence appeared to be that they were at the relevant time all on the other side of the barrier which ran down the centre of the stairway. There was evidence that, at the time of the assault, the witnesses Wilson and Gallagher were engaged in some kind of clinch together on the other side of the stairway from where the complainer was attacked. The women present, to whom reference was made by various witnesses, were seen at the top of the stairs by the time the attack took place.

[8] The witness Robert Wilson gave evidence that the appellant had been seen punching the complainer with both hands on the front of his body. This had brought the complainer down on to his knees. The appellant had admitted during interview with the police that he had pushed the complainer. The witness Wilson told the police that the appellant had told him that he had pushed the complainer on the chest or belly. What Wilson had said had been put to the appellant by the police and was accepted by him.

[9] The evidence of Tony Thomson was that the appellant had been seen to run away immediately after Tony Thomson had heard the appellant cry out or shout, "I've been stabbed". The appellant was running way from the complainer, down the stairs, while the complainer was jumping and holding himself. While the witness had not seen any contact between the appellant and the complainer he had assumed that the appellant was responsible for the stabbing as the appellant had run off and the only other persons present were the women at the top of the stairs.

[10] In his police interview, the accused, at various points in that interview, admitted that he had pushed the complainer and that the complainer had fallen back. The medical evidence which was the subject of agreement in a joint minute, referred to injuries to the left side of the complainer's abdomen. This, it was submitted by the Advocate depute, was not inconsistent with the evidence that the appellant had been seen to push or punch the complainer on the chest or belly. Taking all these matters together, it was submitted by the Advocate depute, that the sheriff was entitled to reach the view that there was sufficient corroboration of the complainer's evidence that the appellant was his assailant.

[11] In anticipation of the Crown's reliance on the evidence of the appellant running away immediately after the complainer had shouted out that he had been stabbed and the evidence that there had been physical contact between the appellant and the complainer, Miss Ogg referred us to certain authorities. In relation to the first of these matters reference was made to Gallagher v HM Advocate 2000 S.C.C.R. 634. In that case the appellant and a female co-accused were charged with assault and robbery on the complainer who was very drunk at the time of the incident and whose recollection was affected by his condition. The complainer gave an account of events that pointed to the appellant having been involved in an assault and robbery upon him. The Crown relied for corroboration of the complainer's account on, inter alia, the fact that the appellant had been seen running away from the locus of the attack. The court held that the fact that the appellant had been seen running away could be taken as indicating involvement in the crime but might equally be consistent with the possibility that he had witnessed a crime in which he did not wish to be involved and, accordingly, this did not confirm or support the complainer's evidence of the appellant's involvement. In our view that case can be distinguished from the present case in that in the present case not only was there evidence of the appellant running away but also that he was seen doing this immediately after the complainer cried out that he had been attacked and in that there was eye witness evidence that there had been physical contact between him and the complainer immediately before that.

[12] As regards the evidence about the physical contact between the appellant and the complainer, Miss Ogg referred us to McDonald v Normand 1994 S.C.C.R. 121 with a view to distinguishing it from the present case. In McDonald the appellant had been charged with assaulting the complainer by seizing her by the arm. The complainer gave evidence that the appellant had grabbed hold of her wrist and had twisted her wrist and arm forcing her to slide down a wall. Her wrist was subsequently found to be bruised and she was in pain. On being cautioned and charged the appellant had replied, "I only knelt on her arm". The court held that the evidence given by the police officers of the injuries which they observed on the complainer was consistent with her account and was sufficient to corroborate the general allegation of assault. Moreover the appellant's reply taken in its context was an admission to being in contact with the complainer's arm at the time she said her arm had been injured by him. There was in the circumstances a sufficiency of evidence to identify the appellant as the person who assaulted the complainer. In the present case, Miss Ogg reminded us that the assault in question consisted of the complainer being stabbed, according to the agreed medical evidence, at his ribs on the left hand side of his body. All that the appellant admitted to doing in police interview was that he had pushed the complainer on the chest or belly. That evidence was insufficient to corroborate the kind of assault in respect of which the appellant was charged. We note that in the McDonald case at page 124E-F the Lord Justice General in referring to what the appellant had said in response to being cautioned by the police said this,

"That reply, however, is something which the sheriff was entitled to look at in the light of all the other circumstances of the case. It was open to him to note that, according to the reply, the appellant was admitting to making some kind of physical contact with the complainer. Furthermore, taken in the context of the charge to which it was a reply, he was admitting to being in contact with her at the time when she had said she was being assaulted by him. Thirdly, it was an admission of making contact with the part of the body which according to her account was injured in the course of that assault. The case can be approached therefore upon the basis that the corroboration of the identity comes from the terms of his reply, whereas the corroboration of the fact of the assault comes from the police evidence about the injury which they observed to the complainer's arm and the pain from which she appeared to be suffering."

In our view, the significance of the decision in McDonald for present purposes is that, like the present case, there was an admission by the appellant that he had made physical contact with the complainer at about the time of the assault. There was no evidence that anyone else had any such physical contact with the complainer. In our view, what the appellant said to the police in interview was also an adminicle of evidence which the sheriff was entitled to have regard to when judging of the sufficiency of the evidence as to the identity of the appellant being the complainer's assailant.

[13] In the whole circumstances we have reached the conclusion that the sheriff was entitled to reject the submission of no case to answer, having regard to the evidence led by the Crown to which the Advocate depute has drawn our attention. As we have said, the starting point in this case was a clear and unequivocal identification by the complainer of the appellant, who was apparently known to him, as being his assailant. In such a case, very little may be required in the way of corroboration of identification. We are satisfied that the various adminicles of evidence relied upon by the Crown in the present case, however slight they might fall to be regarded as if looked at individually, when taken together provided adequate corroboration of the complainer's evidence as to identity of his assailant. For the foregoing reasons the appeal falls to be refused.