The Criminal Appeal Court allowed the appeal by the Crown against the judge’s decision to acquit the respondent, Christopher Mason, who was charged with assaulting an employee at a branch of the Bank of Scotland in Glasgow, threatening her with a firearm or imitation firearm, repeatedly demanding money from her and attempting to rob her.
Lord Brodie (pictured), Lady Dorrian and Lady Clark of Calton quashed the acquittal after ruling that the trial judge erred by entering the “province of the jury” and assessing the quality of the evidence.
In presenting the appeal, the advocate depute referred to the evidence which had been led at the trial in Glasgow High Court on December 5 and 8, 2014, and relied on by the Crown as amounting to “sufficient evidence” to support the indictment.
The note of appeal stated that there was “clear evidence” from the complainer of facts and circumstances which would amount to an attempted robbery as narrated in the libel in the indictment.
The court heard that on 24 February 2014 a person who it was agreed was the present respondent entered the bank on Dumbarton Road and sat down in front of the complainer wearing a long-haired wig, a white baseball cap and a colourful scarf which covered part of his face – items which the respondent admitted wearing in a joint minute and which were recovered from his home address.
According to the complainer the respondent demanded money, told her he had a gun, and motioned to his waistband where she saw something which appeared to be silver, wrapped in duct tape and having the appearance of the handle of a gun.
The complainer was shown bank CCTV footage and she gave evidence of the respondent moving his scarf up and down during a conversational exchange, at the end of which he stood up and left, at which point she pressed the panic button to indicate that an incident had occurred.
The same CCTV footage was described by a detective constable, and there was also evidence from a witness who was waiting in a queue in the bank when she noticed that the respondent had a “grey and shiny” package in the top part of his trousers as he stood up walked out.
A further witness described seeing a man who appeared to be wearing a black wig and being in an” agitated state” walking up and down before entering the bank, and she said she saw the same man running from the bank shortly afterwards and pushing “something shiny” into his trousers.
And there was additional evidence from another witness to the effect that a man wearing a white baseball cap and tartan/striped scarf appeared to be hiding in bushes in a garden as a police helicopter which had been called out flew overhead.
Having drawn the court’s attention to the evidence set out in the note of appeal, the advocate depute reminded the court that at the stage of considering a submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995, the Crown case must be taken at its “highest” – it was to be assumed the evidence was “credible and reliable” and that in respect of circumstantial evidence that the inference most favourable to the Crown might be drawn by the jury.
But on behalf of the respondent, it was argued that the evidence relied on by the Crown “did not in fact support the crucial parts of the complainer’s evidence”, and that there was “no evidence” that the respondent had demanded money from the complainer and made a threat based on the assertion that he had a gun in his possession.
However, the appeal judges accepted the advocate depute’s submission that there was sufficient evidence, if accepted by the jury as credible and reliable, to entitle the jury to convict in terms of the libel in the indictment.
The court reiterated that the question for a trial judge when considering submissions in terms of section 97 of the 1995 Act relates to the “sufficiency of the evidence” and “not to its quality”.
Delivering the opinion of the court, Lord Brodie said: “In looking at the trial judge’s report in the present case it appears to us that he fell into error by entering into what is the province of the jury, that is the assessment of the quality of the evidence and a consideration as to whether the inferences which the Crown would seek to draw from the circumstantial evidence are inferences which are to be drawn in the particular case.
“Whether the evidence which has been led by the Crown in this case will satisfy a jury is a matter for the jury and a matter that has yet to be determined. However, in our view, the evidence led by the Crown which includes direct evidence speaking to the whole narrative in the indictment, is apt, if accepted, to support a conviction in terms of the indictment.
“Accordingly, we will allow the Crown appeal and in terms of section 107D of the 1995 Act we shall quash the acquittal as being wrong in law and direct the trial to proceed in respect of the offence libelled.”