David Blackwood v. Her Majesty’s Advocate [2016] HCJAC 23

Note of appeal against conviction:- On 4 June 2015, at Dundee Sheriff Court, the appellant was convicted after trial of a charge of assault and robbery whilst on bail, along with a Colleen McPhee. The appellant was sentenced to 475 days imprisonment which was discounted from 18 months as the appellant had previously pled guilty to the assault element of the charge. The appellant appealed against his conviction. At the trial evidence was led from two police witnesses who spoke to CCTV images which captured the incident. The footage showed the appellant and McPhee approaching the complainer who was a beggar in Dundee city centre. They seized hold of him and punched him on the head and body and then walked away. They went back and McPhee threw the contents of the complainer’s begging cup and his rucksack onto the road. The appellant and other people picked up the money from the cup and the rucksack and made off. The appellant did not lead any evidence, however, McPhee did and denied assault and robbery, she accepted that she had argued with the complainer who spat on her and McPhee stated that she then picked up his rucksack and cup and threw them. The sheriff directed the jury in respect of the crime of robbery that it consisted of stealing another person’s property using violence or threats. When the jury returned the verdict in respect of the appellant was “guilty of assault and theft”. The sheriff stated that that option was not open to them and they could only convict the appellant of assault and robbery, or assault, or theft. The sheriff directed them that assault and theft was not an option and the jury thereafter convicted the appellant of assault and robbery. Here it was submitted on behalf of the appellant that the sheriff had erred in repelling a submission of no case to answer in respect of robbery as there was insufficient evidence to infer that the appellant had assaulted the complainer with the intention of robbing him. It was further submitted on behalf of the appellant that a verdict of guilty to assault and theft was a competent verdict and should have been recorded. It was submitted that on the evidence led it was open to the jury to conclude that the appellant had assaulted the complainer and at the conclusion of the incident had then stolen the cup and rucksack. On behalf of the Crown it was submitted that there was sufficient evidence for a charge of robbery. It was submitted that there was no requirement to separate the incident into 3 separate parts and that the sheriff was entitled to treat the circumstances as a single incident involving a concerted attack. It was further submitted on behalf of the Crown that the crime was a single charge of robbery and a guilty verdict for assault and theft was not open to the jury. Here the court refused the appeal and pointed to the fact that McPhee was observed going through the complainer’s sleeping bag during the course of the joint assault. The appellant and McPhee then walked away together before both returning to where the complainer’s possessions were at which time McPhee picked up the cup and rucksack and threw them. The appellant then picked up some of the thrown items from the road and, as such, it was open to the jury to infer that the assault was linked with the taking of the cup and rucksack. The court considered that the sheriff was correct to view the circumstances as a single incident of violence along with the removal of the property and the sheriff was correct to repel the no case to answer submission in relation to the robbery. In relation to the verdicts available to the jury, given the circumstances were correctly viewed as a single incident, the only guilty verdicts open to them were assault, assault and robbery and theft.