Douglas v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Brodie,Lord Turnbull |
| Judgment Date | 10 June 2020 |
| Neutral Citation | [2020] HCJAC 23 |
| Docket Number | No 27 |
| Date | 10 June 2020 |
| Court | High Court of Justiciary |
[2020] HCJAC 23
Lord Brodie, Lord Malcolm and Lord Turnbull
CJM v HM Advocate (No 2) [2013] HCJAC 22; 2013 SLT 380; 2013 SCCR 215; 2013 SCL 361
DS v HM Advocate [2007] UKPC D1; 2007 SC (PC) 1; 2007 SLT 1026; 2007 SCCR 222; [2007] HRLR 28; 24 BHRC 412; The Times, 12 June 2007
Fraser v HM Advocate [2013] HCJAC 117; 2014 JC 115; 2013 SCCR 674; 2013 SCL 1031; 2013 GWD 33–652
Howden v HM Advocate 1994 SCCR 19
Lawler v Neizer 1993 SCCR 299
McGaw v HM Advocate [2019] HCJAC 78; 2019 GWD 37–600
McHale v HM Advocate [2017] HCJAC 35; 2018 JC 11; 2017 SCCR 427; 2017 SCL 866; 2017 GWD 27–438
Moorov v HM Advocate 1930 JC 68; 1930 SLT 596
R v Straffen [1952] 2 QB 911; [1952] 2 All ER 657; [1952] 2 TLR 589; (1952) 36 Cr App R 132; (1952) 116 JP 536
Stillie v HM Advocate 1992 SLT 279; 1990 SCCR 719
Vogan v HM Advocate 2003 SCCR 564; 2003 GWD 28–779
Hume, D, Commentaries on the Law of Scotland Respecting Crimes (4th Bell ed, Bell and Bradfute, Edinburgh, 1844), i, 264; ii, 413
Justiciary — Evidence — Sufficiency — Concert — Evidence of three persons involved in assault while another present but not actively involved — Whether sufficient evidence of concert
Justiciary — Evidence — Sufficiency — Accused charged with two similar offences on same day — Circumstantial evidence — Whether evidence relating to one charge relevant as circumstantial evidence to other charge
Brandon Robert Ian Douglas, together with two other accused persons, was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, the libel of which set forth, inter alia, two charges of assault and robbery, one of which was libelled as an attempted murder. The cause came to trial before Lord Mulholland and a jury at the High Court of Justiciary in Aberdeen, on 27 August 2019. In respect of the charge of attempted murder, the appellant made a submission of no case to answer which was repelled. On 4 September 2019, the appellant and the co-accused were convicted. The appellant appealed to their Lordships in the High Court of Justiciary.
The appellant was indicted along with two others on, inter alia, two charges of assault and robbery. Both incidents were alleged to have taken place in Aberdeenshire on the same day. Both incidents involved hooded men in dark clothing entering the houses of known drug dealers, presenting weapons and demanding money and drugs. In respect of the later incident, evidence was led that three males had been actively involved in violence towards the complainer, while a fourth was present and spoke to the three males following the assault. All four males left the locus together. The appellant gave a statement to the police that he had been at or about the locus at the time of the incident but denied involvement in any violence which occurred. The appellant made a no case to answer submission at the close of the Crown case on the basis that there had been insufficient evidence of his participation in any concerted attack. The submission was repelled by the trial judge and the appellant was convicted by the jury of both charges. He appealed.
The appellant argued that, while there had been evidence which placed him at the locus on the later charge, there had been no evidence of participation on his part in any violent conduct and, further, that evidence led in support of the earlier charge did not make it more probable that he had committed the offence libelled in the later charge.
Held that: (1) where a person was attacked as part of a common plan among a number of persons, it was unnecessary for it to be proved that someone who was party to that common plan actually struck the victim for him to be guilty of assault and, where what had been planned was an act of violence, simple presence while others inflicted the violence could readily be inferred to be participation in the assault; in relation to the second charge of assault and robbery, there had been evidence which not only established that the appellant had been at or about the locus but which also allowed the inference to be drawn that he had entered the complainer's house and that he had been party to an agreement to assault and rob the complainer (paras 34–38); (2) while it was generally inadmissible for the Crown to adduce evidence of bad character or propensity to commit a particular sort of crime, it did not follow that evidence of the occurrence and circumstances of one event would always be irrelevant to proof of a separate event; it was artificial to compartmentalise the evidence of what the appellant was alleged to have done earlier in the day as relating exclusively to the first charge and the evidence of what he was alleged to have done later in the day as relating exclusively to the other charge and, while the evidence led in support of the earlier charge had been unnecessary for a sufficiency in relation to the later charge, it strengthened the inferences which were already available (paras 40, 41); and appeal refused.
Vogan v HM Advocate 2003 SCCR 564 referred to.
The appeal called before the High Court of Justiciary, comprising Lord Brodie, Lord Malcolm, and Lord Turnbull, for a hearing, on 28 May 2020.
At advising, on 10 June 20202, the opinion of the Court was delivered by Lord Brodie—
Opinion of the Court—
[1] On 4 September 2019 at the High Court in Aberdeen, the appellant and his co-accused, Martin Gemmell, were convicted after trial of two charges, namely assault to severe injury and permanent disfigurement, and robbery (charge (1)); and attempted murder and robbery (charge (5)). Brandon Wilson, another co-accused, was also found guilty of charge (5). On 4 October 2019 the appellant was sentenced to a cumulo sentence of ten years and three months' detention.
[2] Charges (1) and (5) were in the following terms:
‘(001) on 21November 2018 at 7 Manse Place, Boddam, Aberdeenshire, you BRANDON ROBERT IAN DOUGLAS and MARTIN GEMMELL, did assault Scott Garry David McDonald Thomson, c/o Police Service of Scotland, Peterhead and did enter his home uninvited, brandish a knife at him, repeatedly demand that he give you drugs, money, his mobile telephone and the PIN number for his bankcard, utter threats of violence towards him, strike him on the body with said knife and detain him there against his will, all to his severe injury and permanent disfigurement and did rob him of a bankcard, a mobile telephone and an air rifle;
you BRANDON ROBERT IAN DOUGLAS did commit this offence while on bail, having been granted bail on 29 August 2017 at Peterhead Sheriff Court;
(005) on 21 November 2018 at 40 Clinton Drive, Sandhaven, Fraserburgh, Aberdeenshire, you BRANDON ROBERT IAN DOUGLAS, MARTIN GEMMELL and BRANDON WILSON did, while acting along with another, with faces masked, assault Allan Ian Roy, c/o Police Service of Scotland, Peterhead and did enter his home uninvited, brandish an axe and knives or similar implements at him, repeatedly demand that he give you drugs and money, utter threats of violence towards him, repeatedly strike him on the head and body with an axe and knives or similar implements, repeatedly punch him on the head and body, seize and drag him by the body, pursue him through the property causing him to lock himself in the bathroom, repeatedly strike the bathroom door with said axe and drag him from the bathroom, all to his severe injury, permanent disfigurement and to the danger of his life and did attempt to murder him and did rob him of a games console and accessories and two mobile telephones;
you BRANDON ROBERT IAN DOUGLAS did commit this offence while on bail, having been granted bail on 29 August 2017 at Peterhead Sheriff Court;’.
[3] At the end of the Crown case the Advocate-depute had withdrawn all but charges (1) and (5). A submission had been made on behalf of the appellant in terms of sec 97 of the Criminal Procedure (Scotland) Act 1995 (cap 46) that the evidence was insufficient in law to justify the appellant being convicted of charge (5). The trial judge rejected the submission. The co-accused, Brandon Wilson, gave evidence. The appellant and the co-accused Martin Gemmell did not. Wilson's evidence did not incriminate the appellant or Gemmell.
[4] The appellant has appealed against conviction and sentence. He has abandoned his appeal against sentence. He insists in his appeal against conviction. That appeal relates only to his conviction in respect of charge (5). In the note of appeal the ground of appeal against conviction is framed as the proposition that there was insufficient evidence that the appellant was an active participant in the concerted attack on the complainer. The written argument for the appellant formulates the point as a contention that the trial judge erred in refusing the submission made on his behalf in terms of sec 97 of the 1995 Act that the evidence was insufficient in law to justify the appellant being convicted of charge (5), and more particularly that: (1) there was insufficient evidence that would entitle a jury to conclude that the appellant was actively involved, as opposed to merely being present, at the time of the attempted murder libelled in charge (5); and (2) given the evidence led by the Crown that one of those present at the time charge (5) was committed was not an active participant, there was insufficient evidence that would entitle a jury to conclude that the appellant was not that person (and therefore, according to the argument, not criminally responsible). We do not suggest that there is anything of significance in the difference between these formulations. The ground of appeal is perhaps better focused as a contention that the trial judge was in error in refusing the submission of no case to answer, but the essential question is always whether there has been a miscarriage of justice. That requires this court to consider for itself...
To continue reading
Request your trial