Kyle McCrae and Jamie Anderson v. Her Majesty’s Advocate [2017] HCJAC 27

Note of appeal against conviction:- On 29 July 2016, at Paisley Sheriff Court, the appellants were convicted after trial on indictment of a charge of assault to severe injury and permanent disfigurement. On 24 August 2016, after obtaining Criminal Justice Social Work Reports, the trial sheriff sentenced the first appellant to 35 months imprisonment and made him subject of a supervised release order for 12 months. The second appellant was sentenced to 34 months imprisonment, 4 months attributable to him being on bail, and he was also made the subject of a supervised release order for 12 months. The appellants appealed against their convictions on the ground 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 assault libelled. During the course of the trial evidence was led from 3 sources to identify the appellants as being responsible, namely, from the deceased complainer, Barri Mason, whose evidence was admitted under section 259 of the Criminal Procedure (Scotland) Act 1995, via the evidence of two police officers, and two eye witnesses to the assault, VL and SG. It was submitted on behalf of the appellants that the evidence of VL and SG in relation to identification was unsatisfactory and comprised of numerous inconsistencies. In relation to VL the first appellant had been identified from an emulator sheet and had been unable to provide a description of the perpetrators as they had been wearing hoods. She said one of them had been wearing a ‘onesie’. She indicated that she was not 100% sure of her identification of the first appellant and was unable to explain the basis of her identification of him from the emulator sheet. It was submitted that given the first appellant had been one of two males on the emulator sheet shown wearing a hood, there was a significant risk of a misidentification having occurred. In addition, during the Crown speech to the jury it had erroneously been stated that the first appellant had been positively identified at a VIPER identification parade, albeit the matter had been corrected during the defence speech. In relation to what the complainer had said to the two police officers, in particular, a physical description of one of the perpetrators he knew as Kyle McCrae, the description differed markedly with the first appellant’s actual appearance. In the circumstances it was submitted that, other than the use of the particular name, there was nothing to link the complainer’s account to the first appellant in the dock. On behalf of the second appellant, whilst it was accepted that there had been a positive identification of him by VL from an emulator sheet and a VIPER identification parade, according to the complainer, the identification may not have been in relation to the second appellant having been involved in the assault but, rather, from being seen hanging around in the area. It was submitted that, whilst SG stated that one of those involved had red hair she had excluded the second appellant (who had red hair) as being the male with red hair that she had seen. The complainer had named James Anderson or “Fat Jambo” to the police as being involved, however, there was nothing to link the second appellant to the person referred to by the complainer to the police. On behalf of the Crown it was submitted that there was a cogent body of evidence to justify a conviction in relation to both appellants. It was submitted that it was clear the complainer did not want to appear to be a grass, however, shortly after receiving the injuries he was able to advise the police of the names of those persons responsible, namely the first and second appellants. Thereafter the police prepared emulator sheets including an image of the appellants which were then shown to the eye witnesses and VL identified both appellants as the two males that she had seen attacking the complainer. In addition, SG had been able to provide some information in relation to one perpetrator, that he was wearing a onesie, and in relation to the second perpetrator, that he had red hair. It was accepted by the Crown that there were inconsistencies in relation to some of the witnesses’ identification evidence but that was quite common, particularly in relation to young witnesses. Here the court refused the appeals. The appeals were presented, not on the basis of there being insufficient identification evidence in relation to the appellants but, rather, 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. The court considered that, whilst there were some inconsistencies within the witnesses’ evidence which was open to criticism VL had positively identified both appellants. SG’s evidence was also of assistance to the Crown despite the criticisms that were made of it. In addition, the complainer’s evidence via the evidence of the police witnesses he spoke to shortly after receiving his injuries included the naming of the first and second appellants as being involved and being two individuals he knew. In light of the complainer’s wish not to be seen as a grass the court considered that it may be he intentionally provided a misleading description of those involved to the police.