Olu Aluko v. Her Majesty’s Advocate [2016] HCJAC 76

Note of appeal against conviction:- On 12 November 2015, following a trial on indictment at Dumbarton Sheriff Court, the appellant was convicted by a majority of the jury of two charges:- (1) a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010; and (2) a contravention of section 36(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. In advance of the trial the appellant pled guilty to a contravention of section 102A(1)(a) of the Criminal Procedure (Scotland) Act 1995 following his failure to appear for trial on 22 April 2015. On 8 December 2015 the appellant was sentenced to 20 months imprisonment in relation to charges 1 and 2 and 4 months imprisonment on charge 3, to run consecutively to the 20 months and the court also made a supervised release order. The appellant appealed against his conviction in relation to charges 1 and 2 on the grounds that the trial sheriff had erred in repelling a ‘no case to answer’ submisison that was made on behalf of the appellant at the close fo the Crown case that there was no corroboration of the identification of the appellant as the perpetrator of the two offences. At the trial evidence was led from a witness, Victoria Robertson, who provided positive identification evidence against the appellant. Another witness, William Mclaughlin, had his police statement, which he had provided to PC McLeod, admitted as his evidence under section 259 of the Criminal Procedure (Scotland) Act 1995 due to him being unfit to give evidence at the time of the trial. The description which he had provided to the police, and was included in his statement, was of the perpetrator having a bald patch on the left side of the head, rugged and slim built with dark skin. PC McLeod when cross-examined regarding the contents of his own operational statement which referred to the description given by William Mclaughlin as a “scar” and not a “bald patch”. PC McLeod did confirm in evidence that when he saw the appellant the day after the alleged incident on the top left hand side of the appellant’s head there was a small circular bald patch. Here it was submitted on behalf of the appellant that the evidence of McLaughlin admitted by section 259 was insufficient in character to corroborate the positive identification evidence by Robertson, albeit it was conceded that very little was required to corroborate it. It was submitted that the description provided was lacking in sufficient specification other than the limited reference to a bald patch. Here the court refused the appeal and stated that the sheriff had correctly identified that the issue was not whether the descriptions of each eye witness matched in all respects but, rather, whether each witness provided separate sources of evidence capable of being relied upon which confirmed the identification of the appellant as the perpetrator.The court considered that the trial sheriff was correct to conclude that the the emphatic and positive identification the witness Robertson had given was capable of being supported by the description given by the witness McLaughlin.