Joseph Mcewan V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Kingarth,Lord Brodie |
| Neutral Citation | [2010] HCJAC 5 |
| Published date | 20 January 2010 |
| Year | 2010 |
| Docket Number | XC472/04 |
| Court | High Court of Justiciary |
| Date | 20 January 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Kingarth Lord Eassie Lord Bonomy | [2010] HCJAC 5 Appeal No: XC472/04 OPINION OF THE COURT delivered by LORD KINGARTH in APPEAL AGAINST CONVICTION by JOSEPH McEWAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Paterson, Solicitor Advocate; Paterson Bell, Edinburgh
Respondent: Allan Q.C., Crown Agent
20 January 2010
[1] On 27 May 2004 at Ayr Sheriff Court the appellant was found guilty of 6 charges on indictment, as follows:
"(002) on 27 May 2002 at Highfield Farm, St. Quivox, Ayr, you JOSEPH MCEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown, assault Alan Dougan, Highfield Farm, St. Quivox, Ayr and did repeatedly strike him on the head and body with a hammer and a baseball bat or similar object to his severe injury;
(003) on 27 May 2002 at Highfield Farm, St. Quivox, Ayr you JOSEPH McEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown assault Mark Robb, Highfield Farm, St Quivox, Ayr and did strike him on the arm with a knife or similar object to his severe injury and permanent disfigurement;
(004) on 27 May 2002 at Highfield Farm, St. Quivox, Ayr, you JOSEPH MCEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown, assault Alastair McDonald, Highfield Farm, St. Quivox, Ayr and did punch him to the head and repeatedly strike him on the arm, body and legs with a hammer to his injury;
(005) on 27 May 2002 at Highfield Farm, St. Quivox, Ayr, you JOSEH MCEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown, assault John Leray, Highfield Farm, St. Quivox, Ayr and did strike him on the arm with a baseball bat or similar object to his injury;
(006) on 27 May 2002 at Highfield Farm, St Quivox, Ayr, you JOSEPH MCEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown, assault Andrew Richardson, Highfield Farm, St. Quivox, Ayr and did repeatedly punch him about the head and body, pull him in a window by his legs and struggle with him whereby he fell to the ground to his injury;
(007) on 27 May 2002 at Highfield Farm, St. Quivox, Ayr, you JOSEPH MCEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown, assault George Schriekel, Highfield Farm, St. Quivox, Ayr and did repeatedly strike him on the legs with a hammer and repeatedly kick him on the head and body to his injury."
On 17 June 2004 he was sentenced to 3 years imprisonment in cumulo in respect of the charges.
[2] He has appealed against conviction. Leave to appeal against sentence has been refused.
The Circumstances of the Offences
[3] As reported by the trial sheriff the circumstances disclosed in the evidence were as follows:
"In the course of the evidence it emerged that the appellant, or at least members of his family, had leased the subjects known as Highfield Farm, St. Quivox, Ayr to a charitable institution known as Lydia Trust Associates. Date of entry under the lease was 1 September 2001. Lydia Trust used the subjects as a residential rehabilitation centre for recovering drug addicts.
After the lease had been granted the appellant was motivated to get the tenants to vacate the subjects and to terminate the lease so that the subjects could be leased to the mother of the appellant's co-accused, Sandra Sneddon, who intended to use the subjects as a women's refuge.
On 27 May 2002 the appellant set up a meeting at the subjects with representatives of the Lydia Trust. The pretext was to discuss some concerns which he had regarding the subjects. The representatives of the Trust met with the appellant and Sandra Sneddon. In the course of the meeting the appellant became very aggressive. The meeting lasted a short time and concluded with the appellant making a phone call to his co-accused Steven William Sneddon who was part of a group which was located a short distance from the subjects. A few minutes later the group including Sneddon arrives at the subjects. Members of that group were wielding weapons including a knife, a hammer and a baseball bat. The appellant saw the group arrive and saw that members were wielding weapons as aforesaid. The appellant, his co-accused and other members of the group entered the premises through an open window. The assaults libelled in charges 2 to 7 of the indictment were then carried out. All of the complainers had their injuries treated at hospital."
[4] It is plain from the speech made to the jury by the Procurator Fiscal Depute that the Crown case was that the appellant was guilty as the person who organised the attacks. It is also clear (and was accepted before us) that a material Crown witness was Mrs Jean McGhee, who was the person responsible for running the rehabilitation centre on behalf of Lydia Trust Associates. A transcript of her evidence has been made available to this court. The thrust of her evidence in chief was that prior to the meeting on 27 May 2002 certain problems or claimed problems had arisen in relation to the continued occupation of the premises by Lydia Trust. The meeting was set up against a background of the appellant having sent a notice seeking to bring the occupation of Lydia Trust Associates to a premature end within 28 days. The appellant became very aggressive. Thereafter he made a telephone call to his co-accused saying "You can come down now...". At that point the co-accused and numbers of others arrived. The appellant himself then became involved along with others in kicking the door of the farmhouse. It was the impression of the witness that he was in charge. He and others were seen to go in through the window into the farmhouse where the assaults on the residents who were the complainers took place. She herself did not see what happened inside the premises. It appears that there was evidence from two or perhaps three of those inside which implicated the appellant directly as being involved in the attacks inside, at least to the extent of controlling them.
The Appellant's Defence
[5] It is plain that the appellant's basic position in defence (which was pursued in cross-examination on his behalf with all witnesses and taken from him in evidence) was that, although he was present at the meeting, thereafter he was not in any sense involved in the attacks, his sole involvement having been to try to stop what occurred. The evidence of any witnesses implicating him could not be accepted as credible and reliable.
The Ground of Appeal
[6] Although leave was granted to argue three grounds of appeal only the third of these grounds was insisted upon. In that ground it is claimed at some length that there was a miscarriage of justice by reason of the failure of the appellant's then representatives to follow his instructions in relation, putting it broadly at this stage, to a proposed attack on the veracity of Mrs McGhee by reference to what was said to be a forged lease. We put it broadly at this stage because, in the event, the position ultimately adopted on the appellant's behalf was considerably narrower than that described in the written ground of appeal.
Evidence and Findings Relating to the Appellant's Representation at the Trial
[7] In circumstances where the factual basis for the contentions made on behalf of the appellant in his written ground of appeal was not accepted by his trial counsel or agents, evidence was led before this court from the appellant himself, from his trial counsel Mr Alonzi and from Mrs Christine West, the representative of his solicitors who was present throughout the trial.
[8] Having considered that evidence we are entirely satisfied that trial counsel's evidence as to what the appellant's instructions were, what his own position was in response and as to whether the appellant accepted the advice which he was given, should be accepted as being accurate. It was, it appeared to us, not only based on an apparently clear recall of all significant events, but his evidence was given fairly and carefully and with a disarming and commendable frankness. In all material respects it was supported by the evidence of Mrs West, who spoke to the general accuracy, at least, of a number of file notes prepared at the time. By contrast, the appellant himself accepted that his recall of what had happened at particular points and at various meetings was not particularly good, and we were left overall with the clear impression that he had some difficulty in sorting out in his mind what he now thinks could and should have been done from what actually happened at the time of the trial. In the event, it was no surprise that Mr Paterson on his behalf did not seek seriously to challenge the veracity or reliability of the evidence given by Mr Alonzi, and in his careful submission to the court proceeded essentially on the basis that counsel's evidence fell at least generally to be accepted.
[9] The material parts of counsel's evidence (supported where necessary by reference to the transcripts) can be summarised as follows. Although there was an earlier trial which was deserted, counsel was instructed only for the trial at the end of which the appellant was convicted, his first involvement being on or about 13 May 2004 some days before the trial commenced. He understood that it was the appellant's position that the property which was leased to Lydia Trust Associates in September 2001 was partly owned by himself and his wife (the farmhouse) and in part by his daughter (the rotunda). There were accordingly two documents of lease. These were lodged as productions and were headed "Lease House A" and "Lease House B". For purposes connected with the obtaining of Council funding, however, Lydia Trust Associates wished to have their occupation regulated by one overall lease, and in that connection...
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