Christopher McMultan v. Her Majesty’s Advocate [2016] HCJAC 89

Note of appeal against conviction:-On 23 November 2015, at Edinburgh High Court, the appellant was unanimously convicted after trial of two charges of assault and robbery. He was sentenced to 12 years imprisonment. His co-accused had pled guilty to the same charges during the course of the trial. The appellant appealed against his conviction. The ground of appeal related to “dock identifications” which occurred during the course of the trial in which the appellant was identified by two witnesses. The circumstances were that in advance of the trial the appellant objected to the leading of evidence of an informal identity parade which took place on 6 June 2015. Following debate the judge sustained the appellant’s objection and ruled that no evidence of what occurred on 6 June 2015 should be admitted at trial. On behalf of the appellant it was contended that as a result of the judge’s decision in relation to the sustaining of the minute the trial judge should not have allowed the “dock identifications” and, that as a result of them being allowed, the appellant has been denied a fair trial. On behalf of the appellant it was submitted that following the judge’s sustaining of the defence objection, the appellant’s counsel conducting the trial took the view that the decision to refuse to lead evidence of the circumstances of 6 June 2015 applied not only to the Crown but to the defence also and restricted the cross-examination of the witnesses who had made the “dock identifications”. Here the court refused the appeal. The court observed that it was open to the defence to have raised the issue of the circumstances of the informal identity parade on 6 June 2015 if they considered that to be in the interests of the appellant or, alternatively, the defence could have considered appealing against the judge’s decision if they considered it prejudicial to the appellant’s interests, however, neither of these things occurred. The court considered that the appellant had not been denied a fair trial, indeed the court did not consider that what occurred during the course of the trial could properly be described as “dock identifications”. The court observed that the witnesses identified the perpetrator as someone who was known to them, identifying him by name and pointing to him in the dock as the spontaneously without being asked to do so without any prompting. The court considered that having regard to the amount and strength of evidence in relation to the identification of the appellant even if there had been any unfairness in allowing the identification of the appellant in court, which the court did not think there was, there was no miscarriage of justice.