Christopher McCormick v. Her Majesty’s Advocate [2019] HCJAC 54

Description

Note of appeal against conviction:- On 19 October 2018, at Glasgow Sheriff Court, the appellant proceeded to trial on indictment in relation to the following charge:- “On 30 May 2018 at 114 Woodland Crescent, Cambuslang, being a public place, you ... did, without reasonable excuse or lawful authority, have with you an offensive weapon, namely a sword contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 47(1) as amended.” At the close of the Crown case the fiscal depute made a motion in terms of section 96 of the Criminal Procedure (Scotland) Act 1995 to amend the indictment by deleting the word “at” in the first line of the charge and substituting “in the wooded area near to”. The motion was opposed by the solicitor acting on behalf of the appellant but the motion was granted by the trial sheriff. Thereafter, the appellant’s agent made a submission of ‘no case to answer’ in terms of section 97 of the 1995 Act. The sheriff repelled the submission holding that there was sufficient evidence. No defence evidence was led and the appellant was subsequently convicted of the amended charge. The appellant was sentenced to 3 years and 6 months imprisonment. The appellant appealed against his conviction on the following grounds:- (1) the sheriff erred in granting the Crown motion to amend the locus which was originally indicted as a private dwelling with a private garden and the allowed amendment fundamentally changed the character of the allegation from being in possession of an offensive weapon in a private place to being in possession of it in a public place; and (2) the sheriff erred in repelling the ‘no case to answer’ submission as a police officer had seen the appellant in possession of an item in a public place, whereas the ‘corroborating’ witness had seen the appellant in possession of an item in a private place. It was submitted on behalf of the appellant that the original charge did not amount to a contravention of section 47 and the allowed amendment went beyond curing any defect in the charge or meeting any objection or curing any discrepancy between the indictment and the evidence and ought not to have been allowed. In relation to the question of sufficiency there was no corroboration of the police officer’s evidence. On behalf of the Crown it was submitted that the charge had not been fundamentally null and was able to be amended as the garden ground may have been communal ground and therefore a ‘public place’. It was further submitted that the charge was relevantly pled and the amendment did not charge the nature of the offence. It was further submitted that there was a sufficiency of evidence. Here the court refused the appeal on both grounds. In relation to the allowed amendment to the charge the court stated that it was a matter for the sheriff’s discretion and provided it had not been exercised upon a wrong principle (which it had not) then it could not be criticised. The court noted that the remedy open to the appellant would be an adjournment. The sheriff did not consider that the character of the offence was being changed given the allegation was possession of the item in a public place and the amendment simply altered the narrative to reflect the evidence led. The court noted that no plea to the relevancy of the charge had been lodged and, in any event, the corroborating witness spoke to the appellant having left her garden and gone into the public wooded area. The court noted that no motion for adjournment was made and there did not appear to be any prejudice to the appellant at the time the motion to amend was made. In relation to the issue of sufficiency the court pointed to the various factors listed by the sheriff in repelling the section 97 submission including:- (1) the police officer identified the appellant being in possession of the item in the woods; (2) the machete was recovered in a bag covered by clothing; (3) the corroborating witness had seen the appellant in possession of a silver shiny item which she thought was a knife; (4) she identified the appellant as the person in possession of the item just before the police officer saw the appellant with the bag containing an item similar to the one described by her; and (5) the appellant had gone off in the direction of the woods where the bag was recovered by the police officer. Whilst the corroborating witness did not think that the knife shown to her by the police was the same one she had seen brandished in her garden, the sheriff considered that the evidence had to be looked at in its entirety and there was sufficient evidence in her evidence to support the principal source of the police officer’s evidence and the court was unable to identify any error in the sheriff’s reasoning in his assessment of the section 97 submission and, taking the Crown case at it’s highest, there was a body of circumstantial evidence capable of corroborating the police officer’s evidence.