Cumbernauld man loses High Court appeal against shop knife assault conviction

Gary Orr received a 30-month cumulo penalty after being found guilty of assaulting the complainer, Patrick Clarke, and of being in possession of an offensive weapon. He argued that the trial judge ought to have directed the jury differently in respect of the issue of identification. 

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Malcolm. The appellant was represented by IM Paterson, solicitor advocate, and the Crown by Gillespie, advocate.

Judge for themselves

During the trial, the jury was shown CCTV footage of a man with a Mohican haircut wearing a fur-lined parka jacket, identified as the appellant, entering the shop. Footage from outside the shop showed a person, again identified by the police as the appellant but not wearing a parka, gesturing to the complainer with slashing motions and chasing him back towards the shop accompanied by another person. A shiny object, presumed to be a knife, was visible in his hand.

Another man who had been inside the shop, Mr McGarr, gave evidence that the man inside the shop was not the complainer, but that he was one of the two men who attacked the complainer outside the shop. The complainer himself could not remember anything about the incident and was not asked to identify the appellant.

Two police officers who had viewed the CCTV, DC Murray and PC Greenhorn, both identified the appellant from the CCTV footage, however neither of them had seen the appellant in person before trial. The officer who had cautioned and charged the appellant, DC Cuthill, had been unable to identify him from the footage.

In his charge to the jury, the sheriff directed that they had to judge the soundness of the identifications for themselves and “take special care in assessing the quality of the evidence”. The sheriff’s directions on identification concluded with a statement that, although the jury did not have to conclude that the witnesses had made 100% cast iron identifications, they had to be satisfied that they could rely on the substance of what the witnesses had said and would need to be able to accept the evidence of the two police officers where they positively identified the accused.

It was submitted for the appellant that the evidence of DC Murray and PC Greenhorn had been flawed and unfair as they had not met him before trial. Further, the sheriff had given confusing and conflicting directions regarding identification as it was said the jury could make up their own minds about the CCTV images but had to accept the identification evidence of the two police officers in order to convict.

Sufficiently clear

Giving the opinion of the court, Lord Carloway began: “The ground of appeal relates to the quality of the evidence of identification. It is not about any misdirection by the sheriff.”

Evaluating the strength of that evidence, he said: “Mr McGarr [testified] that the person who had carried out the attack on the complainer was somebody whom he knew to be called Gary Orr. The appellant was identified as being Gary Orr by the police who cautioned and charged him. He would have answered to that name in the sheriff court.”

He continued: “The strength of this evidence derives from the unlikely coincidence of Mr McGarr’s statement that it was Gary Orr who had carried out the attack and the person in the parka seen in the CCTV images, and later involved in the stabbing, being identified by the police officers as Gary Orr.”

Assessing the quality of this evidence further, he went on to say: “The images, especially those showing the man in the parka entering the shop, were sufficiently clear to permit identification by a jury of the appellant. There was sufficient in the other images for the jury to conclude, on their own viewing, that the attacker was the same person who had been wearing the parka.”

On the directions given to the jury, Lord Carloway said: “The sheriff’s directions on identification might have been clearer on the scope for the jurors to form their own view on whether the CCTV images showed the appellant and the place for the image comparison testimony of the two police officers. Technically, the jury did not have to be satisfied that the two police officers had correctly identified the appellant, since the jury could have made up their own minds upon whether the appellant was shown in the CCTV images.”

He concluded: “If they did not accept that the appellant was shown in the images, they could hardly have accepted the identification evidence of the police officers. There was no misdirection. Even if there had been, it was a direction in favour of the appellant. It could not have resulted in any miscarriage of justice.”

For these reasons, the appeal was refused.