Father and son fail in appeals against attempted murder convictions

The Criminal Appeal Court refused the appeal after rejecting the argument that the trial judge wrongly repelled a “no case to answer” submission.

Lord Bracadale, Lord Malcolm and Lord Turnbull heard that the appellants Stephen Sangster Snr and Stephen Sangster Jnr were convicted of the attempted murder of Fraser Winton following a trial at the High Court in Edinburgh in March 2016, in what the trial judge described as a “vicious and unprovoked attack” which involved the use of a spade, a sledge hammer and a Stanley knife.

In respect of each appellant the judge imposed extended sentences of 13 years comprising a custodial term of 10 years and an extension period of three years.

The circumstances which emerged in the evidence were that at the time of the commission of the offence on 31 August 2014 Stephen Snr was aged 51 and Stephen Jnr was aged 22.

The complainer and his girlfriend Laura Williamson were sleeping at the home of a friend when three or four men burst into the flat and attacked the complainer.

The evidence that the crime was committed came from the complainer and Ms Williamson, together with the medical evidence and the evidence of police officers who attended at the scene.

The primary source of evidence implicating each of the appellants was the evidence of the complainer, who knew each of the appellants and positively identified both.

The question was whether corroboration of the identification of each of the appellants by the complainer could be found in the other evidence including the evidence of Ms Williamson, who the trial judge described as a prevaricating witness.

In court she identified Stephen Jnr whom she knew through the complainer and in her statement to the police some hours after the attack she had named him as one of the assailants, describing what he had done with a weapon.

The court heard that Ms Williamson had identified Stephen Jnr at a VIPER identification parade on 2 December 2014 and in her evidence she agreed that she had made the identification, but went on to claim that he had not been present in the flat and had not been involved in the assault, adding that she had named him as a participant because she had been told to by the complainer.

In relation to Stephen Snr she did not identify him in court but at a VIPER parade on 10 December 2014 she had identified him, although she was recorded as adding, “… but I might not be sure. I think it’s him”.

Again, in her evidence she agreed that she had made the identification but went on to claim that Stephen Snr had not been present or involved in the assault.

Following the approach in Muldoon v Herron 1970 JC 30 the trial judge repelled the submission of no case to answer, concluding that at the VIPER identification parades Ms Williamson had identified both accused as having been involved in the attack.

However, the first ground of appeal was that there was insufficient evidence to prove that each of the appellants was a participant in the assault and that the trial judge was wrong to repel the defence submission.

Stephen Jnr had a second ground of appeal contending that, if there was a technical sufficiency, no reasonable jury, properly directed, could have convicted the appellant based on the identification evidence of Ms Williamson.

Delivering the opinion of the court, Lord Bracadale said: “It was common ground that where one starts with an emphatic positive identification by one witness very little else is required to corroborate the identification of the accused person as the perpetrator… It was accepted that the identification by the complainer could properly be described as an emphatic positive identification.

“Laura Williamson in her evidence accepted that she had picked the appellants out at the parades but denied that they were involved in the attack. The question is whether the principle enunciated in Muldoon v Herron 1970 JC 30 can be applied in the circumstances of this case so as to make available as corroboration of the identification by the complainer the evidence of identification by Laura Williamson at the identification parades.”

In Muldoon, Lord Cameron observed: “If it is settled practice in our law that it is and has long been competent to take from a witness evidence of identification of an accused person made by him at an earlier stage of the investigation than his or her appearance in the witness-box, then in my opinion it cannot make such evidence incompetent that the witness is unable to make a visual identification in court due to loss of memory or from other cause.”

Applying the principle in Muldoon, the appeal judges held that identification at an identification parade would fall precisely within the settled practice identified by Lord Cameron.

Lord Bracadale said: “We are satisfied that the principles in Muldoon applied to the evidence of the identification parades in this case. Laura Williamson’s evidence was that she had picked out both appellants at the respective identification parades. The police officer who conducted the parades gave evidence that she had done so in response to the set questions.

“We are not persuaded that the denials of Laura Williamson that the appellants were involved in the attack mean that the evidence of the identification made at the parades loses its status as admissible evidence in the case which, if accepted, can be used by the jury to support the principal source of evidence incriminating the appellants.”

The court also dismissed the second ground of appeal advanced by Stephen Sangster Jnr, who contended that the verdict was one which no reasonable jury, properly directed, could have returned.

Lord Bracadale said: “When looked at in isolation the evidence of Laura Williamson was in many respects unsatisfactory. But it must be examined in the light of the other evidence in the case, including the evidence of the complainer and the police officer who conducted the identification parades.

“When that exercise is carried out we are satisfied that it was open to the jury to rely on the evidence of Laura Williamson and the police officer speaking to her identification at the parades to corroborate the identification of the appellants by the complainer. It cannot be said that no reasonable jury could have returned a verdict of guilty relying on that evidence.”