Brandon Douglas v. Her Majesty’s Advocate [2020] HCJAC 23

Note of appeal against conviction:- On 4 September 2019, following a trial at Aberdeen High Court, the appellant and his co-accused, Martin Gemmell, were convicted of two charges:- (1) assault to severe injury and permanent disfigurement and robbery (charge 1); and (2) attempted murder and robbery (charge 5). Another co-accused, Brandon Wilson, was also convicted of charge 5. On 4 October 2019, following the obtaining of a Criminal Justice Social Work Report, the appellant was sentenced to a cumulo sentence of 10 years 3 months detention. At the end of the Crown case the advocate depute withdrew all the charges except charges 1 and 5. A submission was made on behalf of the appellant at the close of the Crown case under section 97 of the Criminal Procedure (Scotland) Act 1995 that the evidence was insufficient in law to justify the appellant being convicted of charge 5. The submission was repelled by the trial judge. Thereafter, the co-accused Brandon Wilson gave evidence which did not incriminate the appellant or Gemmell. Neither the appellant or Gemmell gave evidence. The appellant appealed against his conviction in relation to charge 5 it being contended that there was insufficient evidence that the appellant was an active participant in the concerted attack on the complainer rather than merely being present and the trial judge erred in refusing the ‘no case to answer’ submission made in terms of section 97 of the 1995 Act. It was submitted on behalf of the appellant that, whilst any active role with a group of attackers in a concerted attack would result in art and part responsibility, for example being a look out, in the present case there was no evidence capable of supporting the inference that the appellant was actively involved in the concerted attack rather than just being present. It was submitted that there was evidence from the complainer that he was attacked by three men with a fourth man present but not involved. It was further submitted that the trial judge was wrong to find that evidence led in support of charge 1 was relevant to the proof of charge 5 as the complainers were different and the evidence in relation to charge 1 did not make it more probable that the appellant committed the offences libelled in charge 5 with ‘similar fact evidence’ having no application in Scots law and the Howden and Moorov principles having no application to the facts of the present case. Whilst there was evidence from the appellant of being present that did not allow an inference to be drawn that he was actively involved in the commission of charge 5. Whilst there was evidence of the appellant being one of the occupants of the relevant motor vehicle again it did not allow an inference of active participation to be drawn. On behalf of the Crown it was submitted that when the evidence was looked at as a whole there was sufficient evidence to allow the jury to infer that the appellant was one of the three persons who entered the house of the complainer in charge 5 and took part in a concerted attack upon him and in any event the jury were entitled to infer that all four occupants of the vehicle (of whom the appellant was one) that parked close to the locus in charge 5 were participants in a concerted attack. It was submitted that the case against the appellant was a circumstantial one and having regard to all of the available evidence there was a sufficiency of evidence against him and the trial judge had not erred in repelling the ‘no case to answer’ submission. In relation to the evidence relating to charge 1 it was relevant because it had the appellant on the day in question travelling by car with his co accused Gemmell in the relevant area armed with a knife with the intention to use it in furtherance of robbing individuals of drugs and money. There was also evidence of 4 or 5 men running towards the locus of charge 5 and there was CCTV evidence of the appellant and an association with the vehicle used in the attack and to individuals against whom there was scientific evidence linking them to the crime. Here the court refused the appeal having considered that there was sufficient evidence against the appellant. The court observed that the appellant and his co-accused were convicted on the basis of “while acting along with another” and by their verdict the jury imposed criminal responsibility on a fourth person as well as the 3 males and the court considered that there was sufficient evidence of the appellant as either one of the males or the fourth unknown person. In relation to antecedent concert, upon which the Crown based their case, the court stated at paragraph 34 that:- “…It is different where there is evidence of a prior agreement to commit the offence and that the accused was party to that prior agreement. Then, any degree of participation is sufficient to make the accused responsible for what the other party or parties do, provided that it does not go beyond the extent of what was agreed. Where what has been planned is an act of violence, simple presence while others actually inflict the violence can readily be inferred to be participation in the assault, whether by providing moral support to the actual assailants, by being available to provide more active support should it be required, and by intimidating the victim.” In relation to the circumstances of the present case the court considered that the evidence disclosed more than mere presence at the locus as had been contended on behalf of the appellant. The court considered that the evidence allowed an inference to be drawn that the appellant had entered the complainer’s house with the other three males and that all the males who approached the house were part of a concerted attack having driven together to the complainer’s house, were dressed in dark clothing and wearing balaclavas and to one of them shouting “give me the drugs” all supporting the inference that the males (including the appellant) had formed an agreement to assault and rob the complainer. The court also considered that the Crown were right to rely on the evidence referred to relating to charge 1 in support of charge 5, whilst confirming that it is generally inadmissible for the Crown to adduce evidence of bad character or of propensity to commit a particular sort of crime. The court stated at paragraph 40 that it would be “…artificial to compartmentalise…the evidence of what the appellant was alleged to have done earlier in the day…” and that whilst the evidence in relation to charge 1 was unnecessary to provide a sufficiency in relation to charge 5, it was nevertheless evidence to strengthen the inferences which were open to the jury in relation to charge 5.