RAYMOND FERGUSON v. HER MAJESTY'S ADVOCATE

[1] The appellant and his co-accused, William Malone, stood trial at Edinburgh Sheriff Court on 20 December 1999 and succeeding days on an indictment containing two charges of assault and robbery. On 22 December 1999 the jury unanimously found each of the accused guilty as libelled in respect of both charges. The appellant has appealed against his conviction in respect of charge 1. The only ground of appeal argued on his behalf was in the following terms:

"The sheriff ought to have directed the jury to treat the evidence of identification with special care as errors have occurred in the past. There was a particular need to do so in the present case given the complainer's failure to identify the appellant at the identification parade. Accordingly there has been a miscarriage of justice."

[4] Hinnrichs was not asked how long the whole incident took. It started shortly after 6 p.m. on 13 September, when there would be daylight. His account of what happened indicated that the episode must have lasted a certain length of time at least, during which the complainer was confronted by and in close proximity to the appellant. At the end of the incident he watched the appellant walk off and then saw him turn and call to his co-accused to join him.

[5] Apart from the evidence of the complainer, the only other evidence in relation to charge 1 was given by a police constable who was on duty at the police station when Hinnrichs came in and made a complaint of assault and robbery. Hinnrichs had appeared very frightened and shocked. There was no other evidence directly relating to charge 1.

[9] In his charge to the jury, the sheriff's directions in relation to charge 1 were mainly concerned with the application of the Moorov doctrine. In relation to the evidence of Hinnrichs as to the identification of the assailants, the sheriff said: