Zak Bennett and Ian David Moyes v. Her Majesty’s Advocate [2020] HCJAC 12

Note of appeal against conviction:- On 31 May 2019, at Glasgow High Court, the appellants along with two co-accused, Chloe Walker and Courtney McCreaddie, were found guilty of four charges:- (1) possession of a firearm in Ryehill Road, Glasgow with intent to cause EG and JM to believe that violence was to be used against them contrary to section 16A of the Firearms Act 1968; (2) behaving in a threatening or abusive manner at an address in Ryehill Road, pulling a window from its hinges, shouting and swearing at EG, brandishing a shotgun at her and demanding that her son, JM, leave the house contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010; (3) a breach of the peace in Lumloch Road by repeatedly discharging a firearm; and (4) possession of a firearm at Cortmalaw Gardens, Glasgow with intent to cause AD to believe that violence would be used against her contrary to section 16A of the 1968 Act. The appellants were sentenced to 8 years imprisonment. The appellants appealed against their convictions. In relation to the first appellant it was submitted that the trial judge misdirected the jury in relation to certain messages sent prior to the incidents. One was from Ms McCreaddie to Ms Walker at 19.20 on 6 July which read:- “Can u pick that Zac up got Moysie? The hot one who was asking for a hot pal!!!? Drop them back here...” and then at 1.54 on 7 July which read:- “If u drive he’ll give you a couple of hundred he said x”. It was submitted that in a concert case such comments, other than by a particular accused, may only be admissible in two situations:- (1) where the concerted action was already ongoing and the accused was a party to that activity; and (2) where the comments themselves demonstrated participation in criminality. It was submitted on behalf of the first appellant that at the time of the message exchanges between the first appellant’s co- accused, it had not been established that there was any ongoing criminality on the part of him and there was no evidence of concert on his part at the time. On behalf of the Crown it was submitted that in relation to the first appellant there was evidence that the first appellant was involved in concert with the others at the time of the WhatsApp messages and matters had progressed from preparation to perpetration. It was submitted that the sequence of the activities and the exchange of messages painted a clear and logical picture of all four accused working together in furtherance of the common criminal purpose. On behalf of the second appellant it was contended that the trial judge had been wrong to repel the ‘no case to answer’ submission made at the close of the Crown case in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. The case had been a wholly circumstantial one and the evidence, when looked at as a whole, did not allow the required inference of guilt to be drawn. It was submitted that in relation to the DNA and the firearms discharge residue recovered from a pair of jogging bottoms, neither could be linked in time or place to the incidents and there was no identification of the jogging bottoms by anyone who had witnessed the incident or viewed the CCTV footage of the incident at Cortmalaw Gardens. It was submitted that the telecommunications evidence in relation to the three co-accused did not incriminate the second appellant and the images of the second appellant and Ms McCreaddie had been taken three quarters of an hour after the last incident, there being nothing to link him to the loci or the firearm. It was further submitted that the photograph of the shotgun on the floor of a bedroom in the second appellant’s home was not capable of giving rise to an inference of guilt nor did the photograph of the second appellant lying on a bed with Ms Walker with a shotgun. In addition, the trial judge had erred in directing the jury that it was open to them to form their own conclusions from the CCTV images in so far as the identification of the second appellant was concerned given the poor quality of the CCTV footage and the directions given by the trial judge were likely to confuse the jury. On behalf of the Crown it was submitted that in relation to the second appellant there were numerous circumstances when taken together which were capable of supporting the inference that the second appellant had been acting with the others in furtherance of the common criminal purpose. There was no need for the jogging bottoms to have been identified as being worn and had not been relied upon by the trial advocate depute for identification of the second appellant. It was submitted that there had been no misdirection by the trial judge and the trial judge had directed the jury on the care they had to approach the CCTV evidence with given its poor quality. It was submitted that, in any event, given the totality of the evidence, there had been no miscarriage of justice. Here the court refused the appeals. In relation to the first appellant the court considered that the messages of Ms McCreaddie to Ms Walker prior to the incidents with a view to picking up the appellants and telling her that she would be paid for it was not hearsay as it was a fact relevant to the commission of the crime not long afterwards and was part of the proof relative to the preparation and perpetration of the crime and was admissible against all accused to the extent it indicated participation in concert in what took place. The court noted that the prohibition against hearsay generally relates to what a person has said outwith the courtroom after the event has occurred and does not apply to evidence of what was said by persons, particularly the alleged participants, prior to or at the time of the event, namely the res gestae. The court considered that the trial judge’s directions were favourable to the first appellant in that there was no need for concert to have been established in advance. In relation to the second appellant the court did not accept the submission on behalf of the second appellant that the trial judge’s directions in relation to the CCTV could be interpreted as a direction that the jury could identify the appellant solely from the images. The court went on to describe the circumstantial case against the second appellant as compelling, referring to the evidence of the car involved taking the perpetrators from and returning to the second appellant’s address, the recovery of FDR on clothing in his house and him being linked to that clothing from the DNA evidence. In addition, there was a photograph of the second appellant with a shotgun in his house the day before the incidents.