Man convicted of carrying a machete in woodland loses appeal against conviction

Christopher McCormick appealed against a conviction of carrying an offensive weapon under the Criminal Law (Consolidation) (Scotland) Act 1995, for which he received a sentence of 3 years and 6 months’ imprisonment, on the grounds that the trial sheriff erred in granting a Crown motion to amend the charge and repelling a submission of no case to answer.

The appeal was heard by Lord Menzies, Lord Drummond Young, and Lord Glennie.

‘A shiny item’

On 19 October 2018, the appellant went to the home of his aunt, Ruby Leonard, in Cambuslang, and shouted abuse at her from her back garden, which was easily accessible by anyone, whilst holding what she described as a shiny item covered by a bag or pillow, which she believed to be a knife. Following this, he went in the direction of a nearby area of woodland. The police were subsequently called. Mrs Leonard was later shown a knife but told the police that she did not know if it was the knife held by the appellant.

The police searched the area and found the appellant on the corner of a street, holding a black bag. When the appellant was spotted, he dropped the bag, which contained a machete covered by a sock as well as several items of clothing, and ran away. He was then found in another nearby area by a different police officer, where he was handcuffed and taken to Motherwell Police Station.

On appeal, it was argued that the offence in question was confined to public places, defined as “any place other than domestic premises, school premises or a prison.” At trial, the Crown moved to amend the indictment from “at” the location to “in the wooded area near to” the location, which the trial sheriff allowed. As the offence had taken place in domestic premises, this amendment changed the character of the offence to something that it was not.

The second ground of appeal was that the trial sheriff erred in repelling the submission of no case to answer. Mrs Leonard did not identify the knife held by the appellant, and could only testify that she saw the appellant holding something silver. This, it was argued, was not adequate corroboration of the main testimony given by the police.

‘Cured an error’

The opinion of the court was delivered by Lord Menzies. In respect of the first appeal ground, he observed: “Whether or not to allow amendment is a matter for the sheriff’s discretion, and his decision must stand unless it can be shown that he exercised his discretion upon a wrong principle or took into account matters which he should have ignored or failed to have regard to matters which he ought to have had in view.”

In this case, the court was unable to hold that this had occurred, but rather that the amendment “cured a discrepancy between the charge and the evidence, and cured an error or defect in the charge”. Mrs Leonard had spoken to the appellant going into the woodland, which was public, with the weapon. Thus, Lord Menzies said that “the charge was clearly one of possession of the item in a public place; the amendment merely altered the narrative to reflect the evidence”.

Regarding the second ground of appeal, Lord Menzies again listed the reasons given by the trial sheriff for repelling the submission. He went on to say: “[T]here was sufficient in Mrs Leonard’s evidence to support the principal source of evidence, being Sergeant Lee.  She spoke to the appellant being in her garden having a shiny item which was silvery and which she thought was a knife, held out in front of him while shouting abuse at her.  Her evidence indicated proximity in time and place, just prior to Sergeant Lee seeing the appellant discard the bag […].  She saw the appellant leave her garden towards the wooded area where he was seen by Sergeant Lee.  All these adminicles of evidence amounted to a body of circumstantial evidence which could properly be seen as supporting Sergeant Lee.”

These factors, then, “were capable of being considered by the jury as amounting to a body of circumstantial evidence which supported the evidence of Sergeant Lee”. As such, the second ground of appeal was also refused.