Notes Of Appeal Against Conviction By Steven Green And Alan D'ambrosio Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Malcolm,Lord Justice General |
| Neutral Citation | [2017] HCJAC 51 |
| Court | High Court of Justiciary |
| Date | 20 June 2017 |
| Docket Number | HCA/2016 |
| Published date | 05 July 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 51
HCA/2016/206/XC and HCA/2016/211/XC
Lord Justice General
Lord Menzies
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTES OF APPEAL AGAINST CONVICTION
by
STEVEN GREEN and ALAN D’AMBROSIO
Appellants
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant (Green): McConnachie QC, Findlater; Faculty Appeals Unit (for Bridge Litigation, Glasgow) Appellant (D’Ambrosio): M Macara QC (sol adv); Paterson Bell (for Beltrami & Co, Glasgow)Respondent: J Keegan QC (sol adv) AD; the Crown Agent
20 June 2017
Introduction
[1] On 17 March 2016, at the High Court in Edinburgh, the appellants were convicted of a charge which libelled that:
“on 25 April 2014 at West Philipstoun Steadings ... you ... and others unknown did assault [RB] ... and did repeatedly strike him on the head and body with a metal bar or similar instrument, compel him to enter a motor vehicle, place adhesive tape around his legs and wrists, place a hood over his head, secure said hood over his face with adhesive tape, repeatedly strike him on the head and body, pour a noxious liquid on him, and did rob him of his wallet and contents, a mobile telephone, a quantity of documentation and car keys, and you did abduct him, convey him against his will through various streets in West Lothian to a location within West Lothian where, with the intention of menacing him and placing him in a state of fear and apprehension of physical injury to himself, his family and employees, you did threaten him with violence if he did not pay money to ... Steven Green within 7 days, and you did thus attempt to extort money from ... [RB]”.
On 13 April 2016, the appellants were each sentenced to 7 years imprisonment.
[2] In the case of the first appellant, the appeal concerns the accuracy of the trial judge’s narration of the evidence to the jury and the balance of his charge. In relation to the second appellant, the issues are sufficiency of evidence and, again, the balance of the charge.
The evidence
[3] The first appellant ran a business known as Pentland Capital from West Philipstoun Steadings in West Lothian. The second appellant was a director of a security and surveillance business, namely Glencairn Risk Solutions Ltd, in which the first appellant also had an interest. This too was based at the Steadings.
[4] In November 2013, the complainer was in the process of buying a lending company called the Graf Mortgage Corporation from the first appellant. The purchase price was to be £800,000. If this was not paid within a specified period (which had long since passed) the shares in the company were to be returned. By 23 April 2014, the purchase price had not been paid. The complainer went to the Isle of Man to secure funding. On the evening of 23 April (Wednesday), according to the evidence of the second appellant’s wife, Linda D’Ambrosio, the first appellant, along with a former co-accused, namely GS, met the second appellant at the second appellant’s house. After that evening, Mrs D’Ambrosio did not see her husband until 6 May.
[5] On the morning of 24 April (Thursday) or 25 April (Friday), the first appellant contacted the complainer and arranged to meet him at the Hopetoun House garden centre just before 9.00am on the Friday. There was evidence of phonecalls between the two appellants at 8.43 and 9.03am. Thereafter, the principal phones of both the second appellant and the co-accused GS were switched off until 12.30am. Prior to 8.00am, a white Fiat Doblo van, registration number FD07 VHH, was captured by CCTV on the A8 going southbound, then northbound. This van was registered to Glencairn Risk Solutions and specifically the second appellant. In due course, the second appellant was to admit being in this white Fiat Doblo during the course of the morning. Both appellants gave evidence that the second appellant had met the first appellant at the garden centre at about 9.00am, although they described the meeting as intended to allow the second appellant to collect £200 from the first appellant. Glencairn Risk Solutions were the registered keeper of another Fiat Doblo, registration number FH07 VLY. The van captured by the CCTV was not seen after 25 April. The same applied to its registration documents. The second appellant said that it had been sold for spare parts on 29 April.
[6] The first appellant duly met RB at the garden centre. Because the café was not due to open until 10.00am, the first appellant invited the complainer back to his office at the Steadings. There was a discussion, lasting 15 or 20 minutes, between the two in the office. The fact that this occurred was spoken to by two accounts managers at Pentland Capital. The complainer was scheduled to go to a meeting at the Sheraton Hotel, Edinburgh at 10.30. He never arrived. The first appellant was due to meet his accountant at the Dakota Hotel, Coatbridge at about 10.00am. Notwithstanding the timing of that meeting, he delayed leaving the Steadings for about 15 minutes after the complainer had left in order to discuss matters, which one of the managers described as being of no particular importance.
[7] More or less as soon as the complainer left the office, he was attacked by three men, who had been surrounding a Fiat Doblo white van. The attack was witnessed by two bystanders, who noted the registration number of the van as AJ57 WVD. This transpired to be the front plate of a Ford Mondeo, which had been stolen from it sometime after 21 April. The complainer was dragged into the van and assaulted in terms of the libel. During the course of the attack the complainer was told that he had a week to get the money and that his attackers knew where he lived and the address of his “girl in Manchester”. This was DS, an employee of the complainer, who lived in Manchester and was known to the first appellant. The complainer managed to kick one of his assailants on the face while in the van. In due course the complainer was released. He went home and then to his doctor’s surgery in Edinburgh. The police were called. Initially the complainer said he had been mugged before, soon after, giving the account which was to feature at the trial.
[8] When the police called on the first appellant on 26 April, he was described as sweating and shaking. He refused to give a statement or to allow the police access to his mobile phone. He did show them a text exchange between himself and one CM, in which the first appellant said that he was supposed to have been given £600,000 on the day from the complainer, but this had not happened.
[9] The appellants both gave evidence. Although they admitted, as already noted, having met each other before the incident and later meeting up at some time after 12.00 at Chapelhall, both denied any involvement in the attack. Each had a special defence of alibi. The first appellant claimed to have been in his office at the material time (which was not disputed). The second appellant said that he had been driving the van elsewhere. He had not lodged an alibi prior to the trial. The trial judge intervened when he started to give evidence about where he had been at the material time, which he said was near Uphall and then Chapelhall. This explanation seemed to have come as a surprise to the second appellant’s counsel. The jury were asked to retire while a special defence was drafted and subsequently lodged late.
The judge’s charge
[10] The trial judge directed the jury that, although they required to accept and apply his directions on law, they alone were responsible for deciding which facts had been proved on the basis of evidence which they accepted. The Crown had led evidence about the circumstances which they maintained linked each appellant to the crime. The defence, on the other hand, maintained that the evidence had not provided such a link. The judge stated that he intended to mention the evidence as briefly as he could, and specifically that his doing so was solely for the purpose of giving the jury legal directions. It was not any part of his function to express a view or to suggest that the jury should take any such view. It was the jury’s recollection of the evidence which counted, not his or that of counsel. If they believed any piece of evidence which cleared one of the appellants, then he could not be convicted, even if that evidence stood alone. If any piece of evidence provided a reasonable doubt about the guilt of the accused, then they would require to acquit.
[11] Having provided the jury with a number of directions on the law, the trial judge turned, at page 39 of what was a 55 page charge, to look at the cases against each appellant. He reminded the jury, at the start of this passage, that it was their recollection of the evidence which counted. In relation to the first appellant, he said that the Crown case was that the first appellant was the instigator. The Crown did not suggest that he had actually been physically involved in the attack. There was the background evidence about the purchase of the Graf Mortgage Corporation. The judge stated that the first appellant had said “more than once” that the complainer did not owe him £800,000. The complainer had an option either to pay that sum or to return the shares. That was, the judge said, correct “in a sense” because it is what the agreement had said. However, the deadline for payment or return of the shares had passed, although it appeared that the parties were still negotiating. What mattered was that the first appellant was entitled to have the money paid, or to have his shares back, and neither had happened by 25 April. Even on the basis of the first appellant’s evidence that he was continuing negotiations, these were in the hope that he would be paid the £800,000.
[12] The trial judge said that the jury had the evidence of the meeting of the appellants and GS at the second appellant’s house on what was: ...
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