Stewart Daniel Pettigrew v. Her Majesty’s Advocate [2018] HCJAC 38

Note of appeal against conviction:- The appellant, and his two co-accused CJW and LBH, were indicted to Dumfries Sheriff Court in relation to a charge alleging that they broke into Dumfries Museum and Observatory and stole a quantity of sporting medals, a Chain of Office and a casket containing an historical scroll. The co-accused CJW pled guilty to charge 3 during the course of the trial. The co-accused LBH did not appear at the trial diet and a warrant was taken for him. On 18 September 2017, at the conclusion of the trial, the appellant was found guilty by the jury and he was sentenced to a period of imprisonment. The appellant appealed against his conviction. The grounds of appeal:- (1) that the sheriff erred in repelling a no case to answer submission at the close of the Crown case; (2) that the Crown should not have placed any reliance on certain comments made by the accused CJW outwith the presence of the appellant and that the sheriff erred in failing to direct the jury not to rely upon the comments made by the co-accused CJW outwith the presence of the appellant and to direct the jury that this was not evidence against the appellant; and (3) failure by the sheriff to direct the jury about concert. It was submitted on behalf of the appellant that there was insufficient evidence of identification of the appellant as one of the persons responsible for the commission of the crime. On behalf of the Crown it was submitted that this was a very strong circumstantial case and the sheriff was entitled, when viewing the case at its highest, to hold that there was sufficient evidence against the three accused. Here the court considered that the case was not a very strong circumstantial one against the appellant there being nothing beyond a possible link to some stolen goods. The court was of the view, however, that the Crown case, taken at its heighest, was sufficient to allow an inference of guilt to be drawn by the jury. In relation to the second ground of appeal there was evidence of a 999 call from Lauren Davis, the former partner of CJW, who made reference to “Stewart” during a call to he police in which she reported admissions by CJW which referred to “Stewart”. During her speech to the jury, the procurator fiscal depute made repeated reference to the evidence of Lauren Davis. The sheriff gave no direction to the jury to the effect that the evidence about what CJW told Lauren Davis, insofar as it was based on what CJW said outwith the presence of the appellant, was not evidence which the jury were entitled to take into account in respect of the appellant. The sheriff in his report to the High Court conceded that it may have been appropriate to have given the jury a specific direction to the jury in relation to the limits of the evidence of Lauren Davis in relation to the appellant. It was submitted on behalf of the appellant that the failure of the sheriff to give a specific direction was compounded by the repeated references by the procurator fiscal depute to the evidence in her speech to the jury and the misdirection was a material one and amounted to a miscarriage of justice in the particular circumstances of the case. On behalf of the Crown it was conceded that there had been a misdirection albeit not a material one in the overall context of the case. Here the court considered that it could not be satisfied that, if the jury had been properly directed, there was no real possibility that the verdict against the appellant would have been different. The court noted that the evidence of Lauren Davis was given a great deal of importance during the course of the trial and was likely to have played a significant role in the jury’s deliberations and the court allowed the appeal.