William Thomas Handy v. Her Majesty’s Advocate [2017] HCJAC 20

Note of appeal against conviction:- In June 2016, at Aberdeen High Court, the appellant was convicted after trial of a charge of wilful fire raising relating to setting fire to a car. His co-accused, Craig Guest, pled guilty to the same charge at the close of the Crown case, when the Crown withdrew the remaining charges on the indictment. A ‘no case to answer’ submission on behalf of the appellant was made at the close of the Crown case which was repelled by the trial judge. The appellant then gave evidence and was ultimately convicted by a majority of the jury. The appellant was sentenced to 5 years imprisonment. The appellant appealed against his conviction. It was contended on his behalf that the trial judge erred in repelling the ‘no case to answer’ submission. The circumstances were that PC David Farr and a colleague, PC Ross Clark, had stopped the appellant in his motor vehicle on 13 May 2014 and questioned him regarding possible motoring offences and seized his car at that time. In the early hours of 23 June 2014 PC Farr’s car was set on fire outside his home address. A police investigation ascertained that the fire had been started deliberately and that petrol had been used as an accelerant. Guest’s DNA was recovered from the label of the plastic tub that had contained the petrol. In his police interview Guest stated that ‘someone’ told him that they wanted a car set alight and where to find the car and he set fire to the car using petrol and ran off. He stated he did not know who resided at the house and he refused to name the person who instigated the fire fearing of reprisals against himself and his young son. It was submitted on behalf of the appellant that there was insufficient evidence to link the appellant to the commission of the crime and there was no evidence that would entitle the jury to infer that he had instigated the crime. The trial judge in his report to the court highlighted a number of adminicles of evidence relied upon by the Crown in their circumstantial case against the appellant:- (1) The appellant felt aggrieved after being stopped by PC Farr and his colleague on 13 May; (2) on 13, 14 and 15 May he made several searches against the officers’ names on his ‘192.com account’ and he bought six extra credits for his account and found PC Farr’s home address; (3) the appellant told his friend John McGurk that he was going to find out where the police officers stayed; (4) an iPhone seized from the appellant had a digital image taken at 08.25 on 14 May 2014 of an envelope with ‘PC Ross Clark’ and his shoulder badge noted on it; (5) on 14 June the appellant attended a police station in Dundee in relation to a separate matter and when another officer asked him to wait to speak to PCs Farr and Clark the appellant became “angry and hostile”; (6) on 19 June the appellant met the officers at Downfield police office and became agitated when they raised the incident on 13 May; (7) in his police interview Guest said that someone had asked him to commit the crime and the same person had supplied the details of the address; (8) the appellant and Guest sought to communicate with each other on 19, 21 and 22 June albeit there were only two actual calls, one lasting 12 seconds and the other 30 seconds the contents of which were unknown; (9) On 21 June two iMessages were exchanged between Guest’s phone and an untraced phone which were suspicious in content and referred to Guest as ‘matey boy’ a greeting used by the appellant in a text sent by him to Guest on 30 June; and (10) on 25 June 2014 the appellant and Guest attended at a shop to have their phones’ memories wiped by a specialist and the appellant purchased a new phone for Guest. There was no evidence of the appellant as the actor. It was submitted on behalf of the appellant that there was insufficient evidence led to entitle a jury to hold that Guest acted upon the instigation of the appellant and something much more than wishing ill to be done to a person and something more than approval or knowledge or appreciation that harm was intended to a person was required. It was submitted that there was no evidence of instruction, direction or reward on the part of the appellant towards Guest and the evidence led was insufficient for a legitimate inference to be drawn from it, firstly, that Guest was instigated to do what he did and, secondly, that the appellant was the instigator. It was submitted on behalf of the Crown that there was a sufficient basis in evidence to enable the jury properly to draw the inference that the appellant instigated Guest to commit the offence. Here the court refused the appeal and considered that there was sufficient evidence to enable the jury to draw the inference that Guest committed the crime under instigation and that the appellant was the instigator. The court considered that there was a strong circumstantial case against the appellant and whilst there could be an innocent explanation for each strand of evidence at the stage of the submission of no case to answer the trial judge had to consider the evidence in the way most favourable to the Crown.