Michael McCarroll v. Her Majesty’s Advocate [2019] HCJAC 83

Note of appeal against conviction:- On 6 November 2018, at Airdrie Sheriff Court, the appellant was convicted after trial of a charge of assault to severe injury and permanent impairment by repeatedly punching and kicking the complainer on the head and body and throwing a bottle at him. He was also convicted of possession of cocaine contrary to section 5(2) of the Misuse of Drugs Act 1971. On 11 December 2018, following the obtaining of a Criminal Justice Social Work Report, the trial sheriff imposed a 6 month Restriction of Liberty Order together with a Community Payback Order with an unpaid work requirement of 150 hours and a compensation requirement of £750 to be paid to the complainer in the assault charge. The appellant was admonished in relation to the possession of drugs charge. The appellant appealed against his conviction it being contended that there was insufficient corroboration of the identification of the appellant and that a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 ought to have been sustained by the trial sheriff. On behalf of the appellant it was recognised that where there is one emphatic identification (as in the present case by the complainer) very little else is required to corroborated that (Ralston v. H.M.A. 1987 S.C.C.R. 467), however, it was submitted that corroboration of that could not be provided by a description of the clothing, nor by a statement by the appellant that “It’s me you’re looking for” as that did not amount to an admission. On behalf of the Crown it was submitted that here was a sufficiency in relation to the identification of the appellant and corroboration of the complainer’s evidence was provided by:- (1) the appellant being found near the locus wearing the distinctive clothing described by the complainer; (2) the appellant being found outside the pub where the perpetrator had told the complainer he was going; (3) the response and reaction of the appellant when challenged by the complainer’s father’s partner; (4) the appellant’s aggressive demeanour towards the complainer’s father and his partner; and (5) the appellant’s comment to the police upon their arrival at the appellant’s house. It was conceded that if the evidence of the complainer’s father and his partner was not capable of providing corroboration, then the sheriff’s directions had been in error, however, it had not been a material misdirection. Here the court refused the appeal against conviction. The court reiterated that where there is an emphatic identification, like there was in the present case from the complainer, little else further is required by way of corroboration. The court considered that there was evidence from a source other than the complainer which confirmed or supported the complainer’s identification, namely, from the complainer’s father and partner who a short time later found the appellant dressed in a way described by the complainer and leaving the place where the appellant told the complainer he was going. The court considered that evidence went beyond bolstering the complainer’s own evidence and was independent evidence which supported his own description of his attacker and confirmed his stated destination. The court also noted that there was other corroborative evidence, not relied upon by the Crown nor mentioned by the trial sheriff, which may have been available as corroboration, for example, the appellant’s responses to his father’s partner’s statement that the appellant had been over at the red bridge.