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Cite as: [2004] ScotHC 40

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Beaton v. Her Majesty's Advocate [2004] ScotHC 40 (23 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Kirkwood

Lord Hamilton

Lord Johnston

 

 

 

 

 

 

 

 

 

 

Appeal No: XC688/03

OPINION OF THE COURT

delivered by LORD KIRKWOOD

in

APPEAL AGAINST CONVICTION

by

MICHAEL ANTHONY BEATON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

 

 

Appellant: Shead; G. Keenan & Co, Greenock

Respondent: Bell, Q.C., A.D.; Crown Agent

23 June 2004

[1]      The appellant appeared at Greenock Sheriff Court facing three charges. On 2 May 2003 he was convicted of charges (1) and (3) which were in the following terms:

"(1) on 07 January 2003 at Caddlehill Street, Glasgow, you PETER BRIAN HARRIS and MICHAEL ANTHONY BEATON did assault Christopher Michael Mitchell, c/o Strathclyde Police, Greenock, seize his arms, threaten him with violence, demand monies from him, punch him on the head and stab him on the hand with a hypodermic needle or similar sharp instrument to his injury and all this you did with intent to rob him of a quantity of money;

(3) on 13 January 2003 at Nicol Drive, Greenock, you MICHAEL ANTHONY BEATON did assault Allan Michael Laird, c/o Strathclyde Police, Greenock, present a hypodermic needle or similar instrument at him and hold it at his throat, demand monies from him and rob him of £10 or thereby of money".

 [2]      On charge (1) the verdict of the jury was unanimous and on charge (3) the verdict was by a majority. A submission of no case to answer had been upheld by the sheriff in relation to charge (2). On charge (1) the appellant was sentenced to 15 months detention and on charge (3) he was sentenced to 2 years detention, the sentences to run concurrently. There is no appeal against sentence.

[3]      In relation to charge (1) the appellant had lodged a special defence incriminating his co-accused who pled guilty to that charge. In respect of charge (3) the appellant had lodged a special defence of alibi, and he had also incriminated Patrick Altizio.

[4]      In his report the sheriff has summarised the evidence on charge (1). The complainer, Christopher Mitchell, was a 26-year-old research assistant at the University of Strathclyde. He had travelled home from Glasgow by train on 7 January 2003 and arrived at Greenock West Station at approximately 9.50 p.m. As he turned on to Nelson Street, Greenock he noticed two men standing in the doorway of a close. He did not pay much attention to these men. The complainer had a backpack which contained a computer and he also had his mobile phone. At the crossing of Newton Street and Nelson Street he realised that the two men were behind him. As he approached Kelly Street, Greenock he noticed that the two men were still behind him. He went into a local shop to buy cigarettes and when he came out he could not see the two men. He turned up Caddlehill Street and again thought there was somebody behind him. About half way up Caddlehill Street he heard footsteps. He looked round and he saw the same two men he had seen as he left the station. They were now on the same side of the road as him. He crossed to the other side of the road when somebody shouted "Here mate". However, the complainer anticipated trouble and kept walking. As he turned the corner at a piece of waste ground one of the men came up one side of him and the other on the other side. The complainer thought it was safer to stop. One of the men was shouting "Here mate, can I have a cigarette?". The complainer was smoking at the time. The complainer told them they could have his cigarette. Both men then grabbed him. One man was wearing a jacket which appeared purple in colour, the other was wearing a dark top which was red in places. The man with the red top said "Just come down here with us". The complainer refused and pushed them away. The man wearing the red top brought up his right hand and said "Do you want hepatitis? Give us your fucking money". The man in the purple jacket punched the complainer on the top of the head. The man in the red jacket turned back and said to the complainer "That's you got it now". The two men then left. The complainer went home and discovered that he had a puncture wound on one of his fingers and that there was blood on his hand and down his trousers. He was taken to hospital where he was given a tetanus injection and two other injections. The complainer was afraid that he may have contacted hepatitis. The complainer then attended identification parades in which he picked out two people. In court the complainer positively identified the appellant as the man in the purple jacket. He confirmed that he had picked the appellant out at an identification parade. In cross-examination it was suggested to the complainer that he was wrong in his identification of the appellant. The complainer maintained that he was "as certain as he can be" that it was the appellant who had punched him on the head.

[5]      So far as charge (3) is concerned, the sheriff has informed us that Allan Laird, the complainer, was employed as a taxi driver on 13 January 2003 and was driving a Vauxhall Cavalier motor vehicle. He picked up a male at the junction of Kilblain Street and George Square, Greenock between 1.30 a.m. and 2.00 a.m. The male got into the back of his vehicle and sat behind him. He asked him to drive to Nicol Drive in the Bow Farm area. Nicol Drive is a cul-de-sac and Mr Laird stopped at the first house. He advised his passenger of the cost of the journey. At that point he became suspicious as his passenger started to cover his face with his jacket. Something came over his right shoulder from his right hand side. The man in the taxi said "I have got a needle. It is HIV infected. Give us your money". Mr. Laird handed over the money. The man got out of the taxi and ran off. Mr. Laird positively identified the appellant as the man who had assaulted him. Despite intense cross-examination Mr. Laird refused to be shaken in his identification of the appellant.

[6]      The Crown led a second witness, Ross Miller, in relation to charge (3). Mr. Miller had been walking down Grieve Road towards Bow Road. He met someone who stated "Just watch yourself wee man, something happened at the taxi rank". He replied "Nae bother". He took it to mean that he should not go near the taxi rank. At about 2.30 a.m. he was spoken to by police officers who told him they were enquiring about an incident at the taxi rank. Mr. Miller told the police of his meeting with the man who had issued the warning to him. Mr. Miller positively identified the appellant as the man in question. However, the Crown did not contend that Mr. Miller's evidence corroborated the evidence given by the complainer on charge (3). The Crown case was based on the application of Moorov v. H.M. Advocate 1930 JC 68 and the Crown relied on the evidence of the complainers in charges (1) and (3).

[7]      The appellant's co-accused was called to give evidence on behalf of the Crown and he confirmed that he and the appellant had followed the complainer in charge (1) and admitted that he had been the person who had assaulted the complainer. He stated that the appellant had not been present when the complainer was assaulted.

[8]      Patrick Altizio, the incriminee in charge (3), was called by the Crown as a witness. He admitted that he had committed the offence and that he had previously lied to the police as to his involvement. In a joint minute of admissions it was agreed that on 13 January 2003, a few hours after the offence had taken place, the police had conducted a search of the complainer's taxi, and in the course of that search they had found on the rear seat a syringe cap to which traces of blood were adhering. The syringe cap was sent by the Crown for forensic analysis and the analysts were instructed to compare the DNA profile of the blood found on the cap with the DNA profile of the appellant. On 27 February 2003 it was confirmed that the DNA profile obtained from the blood on the syringe cap did not match the DNA profile of the appellant. At the trial it was agreed that it was not his blood. The appellant's special defence of incrimination of Patrick Altizio was intimated on or about 11 March 2003 and at that time the defence had no knowledge of the forensic investigations which had been undertaken in respect of the blood found on the syringe cap. On 28 April 2003, the day on which the appellant's trial was due to commence, the defence was informed for the first time of the forensic investigation and told that the blood found on the syringe cap was not the blood of the appellant. The defence considered it necessary to establish whether the DNA profile of the blood on the syringe cap matched the DNA profile of Patrick Altizio. Forensic analysis was carried out, and later that day it was ascertained that the DNA profile of the blood on the syringe cap matched the DNA profile of Patrick Altizio. The trial was adjourned until the next day to enable the police to investigate the potential involvement of Patrick Altizio in the offence set out in charge (3). At the trial two joint minutes of admissions were lodged and paragraph 12 of the second of the joint minutes was in the following terms:

"The Crown had not anticipated that the DNA profile of the blood found on the said syringe cap would have matched the DNA profile of Patrick Altizio. The Crown was of the view that such was the significance of the said forensic evidence in respect of Patrick Altizio that further investigations in respect of him were essential".

It was also agreed that Patrick Altizio had a number of previous convictions, including a conviction for assault and robbery in 1997, and that he was awaiting trial in respect of inter alia a charge of assault and robbery and a charge of assault with intent to rob, both of which involved the use of a hypodermic needle.

[9]      Counsel for the appellant intimated that he proposed to argue eight of the ten grounds of appeal which had been lodged, and that he would not be insisting in grounds 3 and 4 which related to the appellant's special defence of alibi. We heard submissions on the other eight grounds and it will be convenient to narrate first the submissions made in respect of the second ground of appeal which alleged that the sheriff had erred in repelling the submission of no case to answer in respect of charges (1) and (3). As we have said, in relation to these charges the Crown relied on the Moorov doctrine and founded on the evidence of the two complainers. It had been submitted to the sheriff that there were numerous dissimilarities between the two offences, that the applicability of the Moorov doctrine was a matter of law and that no reasonable jury, properly instructed, could convict the appellant of charges (1) and (3) on the basis of the evidence led by the Crown. The sheriff has stated in his report that, as far as the Moorov doctrine was concerned, he "was of the view that this was a matter for the jury to decide".

[10]      Before us, counsel for the appellant submitted that the sheriff had erred in rejecting the plea of no case to answer in relation to charges (1) and (3). The Crown sought to apply Moorov in relation to only two offences and there were numerous dissimilarities between them. The first obvious distinction was that two men were alleged to have committed the offence libelled in charge (1), whereas only one assailant was involved in charge (3). Counsel referred to Gillan v. H.M. Advocate 2002 S.C.C.R. 502 and to the commentary thereon. While a syringe had been used in each case, the modus operandi had been different. In the case of charge (1) the complainer had been followed by two men whereas the offence set out in charge (3) had been committed by one man in a taxi. In relation to charge (1) it was agreed that the appellant had not had the syringe and that it had been used by his co-accused, who had pled guilty. The threats which had been made were different, one relating to HIV and the other to hepatitis. Further, nowadays the use of a syringe in the course of an assault was not uncommon. It was submitted that there were no cogent similarities in this case. Counsel also submitted that the sheriff had been wrong to say that the application of the Moorov doctrine was always a matter for the jury. It was initially a question of law in that in the first instance it was for the court to decide if there was enough evidence, if it was accepted as credible and reliable, to permit the application of Moorov. Counsel also referred to Ogg v. H.M. Advocate 1938 J.C. 152 and, in particular, to the observations of the Lord Justice Clerk (Aitchison) at page 158. In the present case there were a large number of dissimilarities and such similarities as existed were not sufficient to allow the application of Moorov.

[11]      In reply, the advocate depute submitted that the starting point for the Crown was that each complainer had positively identified the appellant. For corroboration the Crown had relied on Moorov and reference was made to Paterson v. H.M. Advocate 1999 S.C.C.R. 750 where one of the charges had involved one assailant and the other charge had involved two assailants. In that case the test to be applied, when there were similarities and dissimilarities between the offences founded on by the Crown, had been set out by the Lord Justice Clerk (Cullen) at page 755E, namely, whether it could be affirmed that on no possible view were the similarities insufficient to determine that there was a connection between the offences which would justify an inference that they were "instances of a course of criminal conduct systematically pursued by the accused person". In the present case, both offences had involved the use of a syringe and a threat of infecting the complainer with a disease. Both offences had taken place in Greenock and there had been only five days between them. It was accepted that in the case of charge (1) it was the co-accused, and not the appellant, who was wielding the syringe but the appellant had been charged on the basis that he and the co-accused had been acting in concert. There was no criticism of the directions which the sheriff had given to the jury in relation to Moorov. It was submitted that the dissimilarities were not so great as to render the Moorov doctrine inapplicable. The sheriff had been right to reject the no case to answer submission. This was not a case where it could be said that the similarities were insufficient to entitle the jury to convict.

[12]      We will return to ground of appeal 2 later in this Opinion.

[13]      We now turn to the grounds of appeal which allege that the sheriff misdirected the jury, namely grounds of appeal 5, 6, 7, 8 and 9, and it will be convenient to deal first with ground of appeal 6 which was described by counsel for the appellant as fundamental. It alleges that the sheriff failed to give the jury any directions about the approach which they should take to the identification evidence. In particular, he did not direct the jury that experience had demonstrated that such evidence can be fallible nor did he invite the jury to consider what opportunity each of the complainers had to identify their assailants. Since the evidence of each of the complainers was critical to conviction, such directions were necessary to ensure a fair trial.

[14]      In his charge to the jury the sheriff gave the following directions in relation to identification:

"You'll remember, ladies and gentlemen, now one of the essential facts is the question of identity - who committed these particular offences? If we look first of all at charge one - and I will speak in more detail about the details of charge one in a minute, but there is one particular principle that I want to deal with at this particular stage, ladies and gentlemen.

If you accept the evidence of Mr Mitchell as credible and reliable he positively identifies Mr Beaton as one of the people who assaulted him with intent to rob. I think the phrase he used when he was pressed on this matter - I think he used it more than once - was he was as clear as he can be, as I noted what he said, but that is not sufficient, ladies and gentlemen, because there is no other evidence on the question of identity of Mr Beaton and if you remember what I was saying about corroboration, you need two sources.

However, you can look at charge three and, subject to what I am about to say to you, you may be able to find corroboration from charge three, and again this is dependent on your accepting the evidence of Mr Laird as credible and reliable.

Mr Laird, if you accept that evidence, positively identified Mr Beaton as the person who robbed him in his taxi. He couldn't be shifted from that despite fairly strenuous, fairly straightforward cross-examination. He could not be shifted on that, despite being shown Mr Altizio. So, if you are satisfied that Mr Laird is credible and reliable and he positively identifies Mr Beaton, then there is a procedure whereby his positive identification can corroborate the positive identification of Mr Mitchell".

 [15]      In his report, the sheriff observed that he had, in that passage of his charge, pointed out that one of the essential facts was the question of identity. He did not consider it necessary to expand further on the question of identification as the jury had heard the evidence and, in particular, had heard the evidence of the complainers in charges (1) and (3) as to the positive identification of the appellant.

[16]      A transcript of the cross-examination of the complainer in charge (3), Allan Laird, was made available. He had given evidence in chief that the assailant, whom he identified as the appellant, had been wearing a grey hooded top but conceded in cross-examination, when a garment was shown to him, that he had been mistaken when he had stated that there had been a hood. He said that the offence had taken place at night when it was dark. He had seen the assailant quite clearly when he initially came into the car, but he had not seen him clearly, or had a good look at him, in the course of the journey when he was driving.

[17]      Counsel for the appellant submitted that the sheriff should have directed the jury to scrutinise the evidence of identification with very great care, particularly the evidence of the identification given by the complainer in charge (3). The issue of identification was crucial in this case. The Crown was unable to lead evidence to corroborate the identification of the appellant by each complainer and had to rely on the application of the Moorov doctrine, which made it all the more important that careful directions on the jury's approach to identification should be given. Further, in the case of charge (3) there had been cogent evidence indicating that the complainer's identification of the appellant was mistaken. In particular, the incriminee, Patrick Altizio, had admitted committing the offence and his blood had been found on the syringe cap, which the police had discovered in the back of the taxi a few hours after the offence had taken place. Further, the appellant's special defence incriminating Patrick Altizio had been lodged before it had been ascertained that the incriminee's blood had been found on the syringe cap. Counsel referred to Webb v. H.M. Advocate 1996 J.C. 166 and Holland v. H.M. Advocate 2003 S.C.C.R. 616. In order to ensure a fair trial the sheriff should have given detailed directions on the jury's approach to the evidence of identification along the lines suggested in the Practice Note issued by the Lord Justice General (Emslie) in 1977. In his report the sheriff had not given any valid reason for not giving such directions. In the circumstances there had been a misdirection which constituted a miscarriage of justice.

[18]      In reply, the advocate depute submitted that there had been no misdirection on the issue of identification. Whether there was a need for a direction warning the jury to take particular care in view of the risk of mistaken identity depended on the circumstances of each individual case and, in the present case, it was submitted that it had not been incumbent on the sheriff to give such a warning. In that connection the advocate depute founded on the case of Kearns v. H.M. Advocate 1999 S.C.C.R. 141 which, he said, was similar in certain respects to the present case.

[19]      Counsel for the appellant also made submissions in support of grounds of appeal 8 and 9. Ground 8 alleged misdirection in relation to the evidence of Patrick Altizio, the incriminee who had been called as a Crown witness and had admitted that he had committed the offence set out in charge (3). In his charge the sheriff gave the following directions:

"Ladies and gentlemen, you have had the benefit of hearing evidence from Mr Altizio. Mr Keenan described his evidence as impressive. Whether you agree with that description is a matter entirely for you, ladies and gentlemen. However, I would ask you to look very carefully at the evidence of Mr Altizio. Remember how he suddenly changed his attitude when he was told by the Crown of 'you're not going to be prosecuted in respect of this matter'. Remember not only how quickly he then decided to tell you it was not Mr Beaton, it was him, but how quickly he then proceeded to describe the offences. Was he able to do this because he had committed these crimes as he maintains, or was it because he had been told about them? That is a matter entirely for you, ladies and gentlemen."

 [20]      Counsel submitted that the sheriff had in effect usurped the function of the jury, and undermined the defence case, by suggesting that the account given by the incriminee had lacked credibility. In any event, that passage, taken along with the sheriff's failure to give a warning about the identification evidence led by the Crown, clearly demonstrated a lack of balance. In reply, the advocate depute submitted that it could not be said that the sheriff had usurped the function of the jury.

[21]      Ground of appeal 9 states that the sheriff failed to give the jury adequate directions on the significance of the matters contained in the joint minute of admissions dealing with the forensic evidence relating to the blood on the syringe cap found in the rear of the taxi. It was common ground that this was not a matter with which the sheriff dealt in the course of his charge. In his report, he states that the jury had before them the two joint minutes. He did not invite the jury to consider the significance of the forensic evidence as he was not aware that it was of any significance in the case. He did not remember either the procurator fiscal depute or, in particular, the agent for the appellant suggesting in their submissions to the jury that the forensic evidence had any significance.

[22]      Counsel for the appellant stated that while the sheriff had referred in his charge to the blood on the syringe cap, he had not reminded the jury that it had been shown to be the blood of the incriminee, nor had he reminded them how soon after the robbery the syringe cap had been found. The robbery had taken place in the early hours of the morning on 13 January and the syringe cap had been found by the police at about 10.30 a.m. There was no evidence that there had been another passenger in the taxi after the robbery and before the cap was found. The DNA evidence was clearly of considerable significance in relation to the evidence given by Patrick Altizio. Counsel also stated that he had been informed that the forensic evidence had been referred to in the closing submissions for the defence. In reply, the advocate depute referred to the fact that the sheriff had reminded the jury (at page 32 of his charge) that a syringe cap with blood on it had been found in the back of Mr. Laird's car and that what conclusions the jury drew from that fact was a matter entirely for them.

Decision

[23]      We find it convenient to deal first with ground of appeal 6, which was described by counsel for the appellant as being fundamental and which relates to an alleged misdirection by the trial judge in respect that he failed to warn the jury to consider the evidence of identification with particular care.

[24]      In February 1977 the Lord Justice General (Emslie) issued a Practice Note which contained the following passage:

"2. A typical example of the problem is found in the case in which the only evidence inculpating the accused in the commission of a proved crime is evidence of visual identification by witnesses in circumstances in which their opportunity for accurate and reliable observation of the perpetrator has been limited in time or otherwise or merely fleeting, and where the accused was not previously known to them, or where memory may have been impaired for one reason or another. In such a case, and indeed in many cases in which acceptance by a jury of evidence of visual identification is essential to a conviction, the risk of conviction on mistaken identification by honest witnesses cannot wholly be excluded. To reduce this risk to a minimum in cases of this kind and also in cases in which the trial judge himself is of opinion that some critical evidence may be of doubtful quality - for whatever reason - he shall continue to follow the sound practice -

(i) of reminding the jury of the vital importance of approaching the

assessment of the weight which ought to be given to the evidence in question with particular care; and

(ii) of assisting the jury by indicating or suggesting for their consideration the tests which in the particular circumstances of the case they could usefully apply to that evidence to measure its quality and reliability and thus reach a sound conclusion on whether to accept, reject or discard it." (see Webb v. H.M. Advocate 1996 J.C. 166 at page 170).

 [25]      In McAvoy v. H.M. Advocate 1991 S.C.C.R. 123 the Lord Justice Clerk (Ross) made the following observations:

"When identification is in issue in a case, the trial judge may feel it desirable to remind the jury that errors can arise in identification and that there have been cases of mistaken identity with the result that the jury must consider the evidence of identification with some care. A trial judge may go on to remind the jury (if this is the case) that the witnesses were not familiar with the person whom they identified prior to the occurrence of the alleged crime. That being so the jury may wish to ask themselves how long the witness had the person whom he identified in view - whether it was a mere fleeting glance or something more. Whether the person concerned was clearly visible. He may also suggest that the jury may wish to ask themselves how positive the identification was and whether the person identified was nondescript or had some distinctive features and characteristics. However, precisely what the trial judge says in this connection is a matter for his discretion."

 [26]      As the Lord Justice Clerk (Gill) observed in Holland v. H.M. Advocate 2003 S.C.C.R. 616 (at para. [37]), further guidance has been given by the court in Blair v. H.M. Advocate 1993 S.C.C.R. 483, Chalmers v. H.M. Advocate 1994 S.C.C.R. 651 and Webb v. H.M. Advocate, supra. Whether it is necessary for the trial judge to give a specific warning to the jury to take particular care in regard to disputed evidence of identification, and the terms of any such warning, must depend on the particular circumstances of each case. In the present case there is no doubt that the evidence identifying the appellant given by the complainers in charges (1) and (3) was crucial to the Crown case which relied on the Moorov doctrine. In particular, the evidence of identification given by Allan Laird, the complainer in charge (3), was strongly challenged by the defence. The assailant, who had not previously been known to Mr. Laird, had entered the taxi in the early hours of the morning. Mr. Laird said that he saw the man quite clearly when he got into the taxi in the first place, but he stated that in the course of the journey he had not been able to see him clearly or get a good look at him. Indeed, at that stage he would have had no reason to suspect that he was going to be robbed. It was only after the taxi had stopped that he was aware of the man trying to conceal his face, putting his head down inside his jacket up to about the level of his lips. He agreed that it was dark at the time. He conceded that he had been mistaken when he had stated that the assailant had been wearing a top with a hood on it. Further, the appellant had incriminated Patrick Altizio, who gave evidence and admitted having committed the offence, and there was undisputed evidence, which emerged very shortly before the trial was due to commence, that it was his blood which was on the syringe cap found in the back of the taxi shortly after the incident, and that he had a conviction in 1997 for assault and robbery.

[27]      The sheriff told the jury that Mr. Laird had positively identified the appellant as the person who robbed him in his taxi, and that he could not be shifted from that position, despite fairly strenuous cross-examination. However, he did not give the jury any guidance as to how they should approach the crucial and strongly disputed evidence of identification. He did not warn the jury of the need to take particular care in assessing the identification evidence and he did not point out the strengths and weaknesses of that evidence. He did not mention any of the factors which the jury might have found it helpful to consider in relation to the issue of identification, such as the fact that the appellant had not previously been known to Mr. Laird and the extent to which, and the circumstances in which, he was clearly visible to him, nor did the sheriff refer, in relation to the issue of identification, to the evidence given by Patrick Altizio and the finding of his blood on the syringe cap. On the whole matter we are satisfied that the evidence of identification and, in particular, that given by Mr. Laird, was a crucial issue in the case and that there was a failure on the part of the sheriff to give adequate directions to the jury as to how to approach that evidence. In our opinion this was a material misdirection.

[28]      On behalf of the appellant, counsel also submitted that the sheriff's charge had lacked balance and, in that connection, we note that the sheriff, while giving the jury no warning in relation to the identification evidence led by the Crown, directed the jury "to look very carefully at the evidence of Mr. Altizio", because he had changed his attitude when he was told that he was not going to be prosecuted. Further, the sheriff did not give the jury any directions relating to the significance of the forensic evidence because, as he tells us in his report, he was not aware that the forensic evidence was of any significance. However, the forensic evidence clearly lends support to the evidence given by Patrick Altizio, and the terms of the second joint minute of admissions make it clear that the Crown had appreciated the significance of the forensic evidence so far as the incriminee's evidence was concerned.

[29]      In our opinion there was merit in the submissions made by counsel for the appellant in relation to grounds of appeal 8 and 9. On the whole matter we are satisfied that the sheriff misdirected the jury and that that resulted in a miscarriage of justice.

[30]      As we have held that there was a miscarriage of justice on the basis of misdirection, it is not necessary for us to consider grounds of appeal 1, 5, 7 and 10, all of which were argued before us.

[31]      With regard to ground of appeal 2, which alleged that the sheriff had erred in rejecting the no case to answer submission in relation to charges (1) and (3), we have already noted that the sheriff, when he rejected the submission, referred to the two witnesses who identified the appellant and then stated that as far as the Moorov doctrine was concerned, he was of the view that this was a matter for the jury to decide. He also stated that, in rejecting the submission, he took into account the case of Sinclair v. H.M. Advocate 1990 S.C.C.R. 412 and, in particular, the observation of the Lord Justice Clerk (Ross) (at page 415) that it was for the jury and not the judge to decide whether the necessary link had been established in the evidence. There was no criticism of the directions which the sheriff gave to the jury on Moorov but at the stage of the no case to answer submission it was, of course, for the sheriff to decide, as a matter of law, whether the evidence which had been led by the Crown was capable of establishing the necessary underlying unity of purpose. It was only if the evidence was so capable that it would have been open to the jury to convict on the basis of the doctrine of mutual corroboration. If it was so capable, the question whether the underlying unity of purpose had, in fact, been established on the whole evidence and the charge had been proved was, of course, a matter for the jury to determine. Had it been necessary for us to do so, we would have concluded that the evidence led by the Crown was not sufficient to entitle the jury to convict. There were numerous dissimilarities, and it seems to us that those similarities which existed were, in character and circumstance, insufficient to enable the jury to determine that there was a connection between the offences which would justify an inference that they were "instances of a course of criminal conduct systematically pursued by the accused person" (Ogg v. H.M. Advocate 1938 J.C. 152 per the Lord Justice Clerk (Aitchison) at page 157).

[32]      For the reasons which we have given, we will allow the appeal and quash the convictions.

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