Appeal Court upholds assault conviction over sheriff’s alleged ‘misdirection’ on identification evidence

A man found guilty of two charges of assault on two women despite the fact that the only witness to identify him as the attacker was unable to identify him in court has had an appeal against his conviction refused.

 

The High Court of Justiciary Appeal Court rejected the appellant’s argument that the sheriff “misdirected” the jury by failing to direct the jurors that in order to convict the accused they would have to discount the evidence given in court that he was not the assailant and accept the evidence of the earlier identification of him based upon photographs.

 

Lady Paton, Lord Malcolm and Lord Turnbull heard that the appellant Malcolm Cumlin was found guilty by a jury of two charges of assault upon two women in a hairdressers in Glasgow. 

 

 

Evidence was led from a number of witnesses, to the effect that a male wearing a hoodie entered the premises and lunged at one of the customers.

 

Her hairdresser instinctively put out her hand, but was cut and required hospital treatment to repair a tendon, which left her with an “unsightly scar”.

 

The customer ended up on the floor, where she saw the neck of a lemonade bottle, and the court heard forensic expert evidence to the effect that the major contributor of DNA found on the mouthpiece of the bottle was that of the appellant.

 

About eight days after the attack the customer identified the appellant as the assailant by reference to photographs, including from a photograph on an emulator sheet. 

 

She made reference to “distinctive” eyebrows, but when she came to give evidence before the jury she was unable to identify anyone in court as the attacker. 

 

She was a lot less sure and thought that the eyebrows in the photographs differed from those of her attacker and conceded that she may have made a mistake when she identified him from the photographs.

 

In cross-examination, it was put to her that she was saying that the man in the dock was not the person who came into the shop, to which she answered: “I don’t think so”. 

 

Other witnesses gave certain descriptions of the man, but only the injured customer made an identification of the appellant as the responsible person.

 

The defence made a “no case to answer” submission, but the sheriff refused the submission and an application for leave to appeal to challenge that decision was also refused.

 

 

However, leave was granted for the proposition that the sheriff erred in failing to direct the jury that before there could be a prima facie case against the appellant, they would have to discount the evidence given in court “that the appellant was not the assailant” and accept the evidence as to the earlier identification of him based upon photographs. 

 

In granting leave, the first sift judge said that it is arguable that the sheriff should have given specific directions on the evidence, in particular, that if the jury rejected certain evidence - the identification and/or the DNA evidence - they were bound to acquit.

 

On behalf of the appellant, it was accepted that the evidence of the earlier identification was available to the jury as evidence pointing to the involvement of the appellant, but it was argued that, unless the identification was accepted by the jury, there was an “insufficiency of evidence”. 

 

It was submitted that it was “incumbent” upon the sheriff to “explain this evidential significance” to the jury, but the sheriff did not do so. 

 

He should have told the jury that in order 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 other witnesses as to the earlier identification from the photographs. 

 

It is accepted that it was open to the jury to do this, but the complaint was to an alleged “misdirection by omission” in the charge which amounted to a “miscarriage of justice”.

 

However, the appeal judges were not persuaded that the jury were misdirected.

 

 

Delivering the opinion of the court, Lord Malcolm said: “The jury was given a number of standard directions of relevance in the present context. They were told that they could accept some parts of a witness’s evidence and reject other parts. Plainly this could include acceptance of the evidence that the appellant had been identified as the assailant eight days after the incident, and rejection of the retreat from that position…. 

 

“The jury was given the standard directions on the need for evidence from two separate sources pointing to the guilt of the accused, and that the sources could be of differing types, namely eyewitness and circumstantial evidence (both of which are in play here). The jury was told that they would have to acquit if anything said by a witness raised a reasonable doubt as to the guilt of the accused. 

 

“The charge included the standard directions on the need to take care with identification evidence. It was stressed that the identification evidence was an important aspect of the case.”

 

He added: “Some judges may well have given the additional directions desiderated on behalf of the appellant, but that is not the touchstone for a miscarriage of justice arising from a misdirection by omission. It must be shown that they were necessary for a proper verdict. 

 

“The jury heard all the evidence and both speeches in advance of the sheriff’s charge. The jury was told by the prosecution that its case depended upon acceptance of both the identification and the DNA evidence. Members of juries can be expected to use their intelligence and common sense.

 

“The key importance of the identification and DNA evidence will have been obvious to the jury. The directions as to corroboration were sufficient for the jury to appreciate the significance of rejecting either piece of evidence. 

 

“The charge was also sufficient to allow the jury to assess the evidence that on an earlier occasion the witness had identified the appellant and, in the light of her retraction, to decide whether to accept or reject that identification evidence.”