Malcolm Cumlin v. Her Majesty’s Advocate [2018] HCJAC 44

Note of appeal against conviction:- At Glasgow Sheriff Court the appellant was convicted after trial of two charges of assault on two hairdressers. The appellant appealed against his conviction it being contended that there had been a misdirection by omission by the trial sheriff in relation to identification which amounted to a miscarriage of justice. The circumstances were that a male wearing a hooded top entered the locus and lunged at one of the customers. Her hairdresser put her hand up and was struck by the male resulting in her injury. The customer fell to the ground and saw the neck of a broken lemonade bottle lying beside her. Eight days later the customer was shown an emulator sheet in which she identified the appellant and made reference to his distinctive eye brows. At trial, however, the customer stated that she may have made a mistake in relation to her earlier identification and in cross-examination stated that she did not think that the man in the dock was the person who came into the shop and that he did not look like the perpetrator. The customer was the only witness who provided identification evidence of any value. Forensic evidence was led to the effect that the major contributor of DNA found on the mouthpiece of the lemonade bottle was that of the appellant and evidence was led that the lemonade bottle was not there before the incident. The scientist was able to say that the presence of the DNA on the mouthpiece was consistent with the appellant having been drinking from the bottle albeit not when he had been drinking from it. At the close of the Crown case a no case to answer submission was made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 which was repelled. Leave to appeal was refused in relation to challenging the sheriff’s decision, however, leave to appeal was granted in relation to the contention that the trial sheriff had erred in failing to direct the jury that before they could convict the appellant they would have to reject the evidence given in court that the appellant was not the assailant and accept the evidence of the earlier emulator sheet identification. In addition, it was contended that the jury should have been given specific directions that if they rejected either the earlier emulator identification or the DNA evidence then they would be bound to acquit the appellant. It was submitted here on behalf of the appellant that it was incumbent upon the sheriff to explain to the jury the evidential basis upon which they could convict the appellant and, in particular, they should have been directed that to enable them to convict they would have to discount the evidence in court that the man in the dock was not the assailant and accept the evidence from the customer of the earlier identification from the emulator sheet. Similar submissions were made on behalf of the appellant in relation to the significance of the DNA evidence and what the jury were bound to do in the event that the jury rejected it. It was submitted that this misdirection by omission amounted to a miscarriage of justice. Here the court refused the appeal. The court considered that the directions given to the jury were adequate. The jury were directed that they could accept and rejects different parts of a witness’s evidence. Further, the jury were given standard directions on corroboration and the care they should approach identification evidence with and that they were bound to acquit if anything said by a witness raised a reasonable doubt as to the appellant’s guilt. The court observed that some judges may have given the specific direction sought on behalf of the appellant, however, it could not be said that those directions were necessary for a proper verdict. The court stated that the jury were expected to use their intelligence and common sense and a charge should not be looked at in isolation as if the jury had not heard the evidence or the speeches of the Crown and the defence. The court also considered that the directions given were sufficiently clear to instruct the jury how to approach the customer’s earlier emulator identification against her later retraction.