Appellant (Kennedy): Findlay QC, Young; Gilfedder & McInnes (for Higgins, Moreledge & Litterick, Alloa)

Appellant (Breslin): Kerrigan QC; Paterson Bell (for L & G Robertson, Glasgow)

Appellant (Oliver): Keenan, Solicitor Advocate; Capital Defence

Respondent: Niven Smith AD; the Crown Agent

23 January 2014

General
[1] On 30 November 2012, at the High Court in Edinburgh, the appellants were convicted of a charge which libelled that:

"on 19 May 2011 you ... did at ..., Rosyth, assault Alexander Ormiston, ... repeatedly punch him on the head and body, otherwise inflict blunt force injuries on his head and body, all to his severe injury and abduct him, convey him against his will in his motor vehicle ... on various streets in Rosyth, across the Forth Road Bridge, on various streets in Edinburgh and elsewhere to the Bank of Scotland ... Leith ...force him to enter said Bank ... and to withdraw £5,000 from his bank account and rob him of £5,000".

The appellants were acquitted of the culpable homicide of Mr Ormiston, who died on 3 June 2011. On 10 January 2013, the trial judge sentenced Mr Kennedy to 5 years and 6 months imprisonment, Mr Breslin to 6 years imprisonment and Mr Oliver to 8 years imprisonment.

The evidence
Against all appellants
[2] The evidence fell into three categories. First there was evidence which was available against all the appellants. This established that a company owned by Mr Kennedy was in the process of suing the deceased for £89,000. A proof had been fixed for the sheriff court in July 2011. It was being defended "vigorously" by the deceased. On 17 May, Mr Kennedy's company had been required to produce certain books and records, including bank statements. There was evidence that Mr Kennedy was in some financial trouble and had possibly been made bankrupt. From this evidence the trial judge considered it reasonable to infer that Mr Kennedy was of the view that the court proceedings were not going well and that what lay in prospect was an expensive and difficult proof.

[3] The three appellants were known to each other. Whereas Mr Kennedy lived in Fife, Mr Oliver and Mr Breslin both lived in East Lothian and had had no prior contact with the deceased. In the course of the two days before the incident, there was telephone contact between the three appellants and also between Mr Breslin and a Mr Forbes. Very early on 19 May, Mr Breslin and Mr Oliver were driven by Mr Forbes from East Lothian to the deceased's home in Rosyth. In the course of this journey, Mr Breslin and Mr Oliver were discussing something about being owed money. There were further phone calls and texts between Mr Breslin and Mr Kennedy during the course of this morning. By about 6.00am, all three appellants had arrived at the deceased's home, where he lived alone, with Mr Kennedy arriving in his own car. All three entered the house, although not necessarily together. The trial judge described the deceased as vulnerable. He was aged 63 and a chronic alcoholic with a number of health issues.

[4] At about 7.40, Mr Kennedy left the house in his car. Mr Breslin drove the deceased to the Bank of Scotland in Leith. Mr Forbes drove Mr Oliver to that Bank. Mr Breslin went into the Bank with the deceased and remained with him while the deceased cashed a cheque for £5,000. The deceased had visible signs of injury to his face. Mr Breslin explained to the Bank staff that he and the deceased, whom he described as his uncle, had been out drinking on the previous night and the deceased had fallen. There was some opportunity for the deceased to have raised an alarm with the Bank staff, but whether that was a realistic option, whilst he was in Mr Breslin's company, was a matter for the jury to assess. Meantime, there was continued phone contact between Mr Breslin and Mr Oliver, when the deceased was in the Bank.

[5] Once out of the Bank, the deceased handed a white envelope to Mr Breslin, presumably containing the money. The deceased was then driven in his own car to the Leith Docks area, where he was left to go to his work there. By the time of his arrival at work, the right side of his face was badly bruised and swollen. He was distressed and crying. He left work and went to stay with his brother in Trinity. Thereafter Mr Forbes drove Mr Breslin and Mr Oliver home to East Lothian where, later in the day, they were seen to have significant amounts of cash. Mr Breslin handed money to Mr Oliver sometime in the afternoon and Mr Oliver then gave his girlfriend some £500 in cash to spend.

[6] There was continued phone contact between Mr Oliver and Mr Kennedy and between Mr Breslin and Mr Kennedy. Mr Breslin was in continued contact with the deceased. A text message was sent by Mr Breslin to Mr Kennedy stating: "He is giving you 30 just now. He's not moving on that so once that's in we will take it from there". Mr Kennedy later sent a text to Mr Breslin asking: "Has he paid in?"

[7] On 4 June, Mr Kennedy was found by the police hiding in his attic. He was trying to conceal his mobile phone underneath some insulating material.

Against Mr Breslin only
[8] The second category was evidence affecting only Mr Breslin. Whilst on remand, Mr Breslin had told his girlfriend that he and Mr Oliver had gone to the deceased's house because "he was due him, the diesel and that". He said that the "boy" (Mr Kennedy) had punched the deceased in the face. He said much the same to Mr Forbes in another call from the prison.

Against Mr Oliver only
[9] The third category was that available to the jury only in respect of Mr Oliver. This came from his former girlfriend, who said that he had told her that Mr Kennedy had wanted him to go and speak to the deceased, who was due Mr Kennedy money. Mr Oliver had become involved because Mr Kennedy had offered him money "to do with" the deceased. He had telephoned the deceased and asked him whether he was due Mr Kennedy money. He later said that he had seen Mr Kennedy punch the deceased in the face whilst they were at the deceased's house. He had thought this to be a "liberty". When the girlfriend had been given the cash, she was under the impression that this had been the deceased's money and that it was being kept from Mr Kennedy by Mr Breslin and Mr Oliver. They had "bumped" Mr Kennedy and kept the money for themselves. Mr Oliver had told her that the deceased had given Mr Breslin the money.

[10] There was evidence also from a witness DB, who said that Mr Oliver had also told her that he had seen Mr Kennedy slapping the deceased on the mouth in the house. Mr Oliver had told her that he had been at the house getting money for Mr Kennedy. He was "collecting money". This witness was under the impression, from what Mr Oliver had said to her, that Mr Kennedy was due a large sum of money from the deceased, which was being pursued through the courts.

Submissions
[11] The submission, in respect of each appellant, was that there was insufficient evidence of antecedent concert, which had been the essence of the Crown case. It was a necessary element of the proof that there had been an antecedent plan to use violence or the threat of violence in order to obtain money from the deceased (Codona v HM Advocate 1996 SCCR 300). In convicting the appellants, the jury had engaged in speculation, since they had not been entitled to draw legitimate inferences of criminal conduct in terms of the libel. There had been no evidence of who had delivered the blow in the house and therefore it could not be attributed to any of the appellants (HM Advocate v Welsh and McLauchlan (1897) 5 SLT 137). The actings of the individual appellants after the incident could not assist in the absence of prior concert (McLaughlan v HM Advocate 1991 SCCR 733). It was a quantum leap to go from an inference, that the appellants had attended at the house because of something to do with the payment of money said to be due to Mr Kennedy, to one that this was to involve the use or threat of violence. There might be suspicion but what was lacking was evidence.

Decision on Sufficiency
[12] A number of legitimate inferences could be drawn from the evidence. First, all three appellants were involved in whatever had been planned to take place in the deceased's house on the morning of 19 May. Secondly, from the timing of the visit to the house in the early hours of the morning when the deceased was to be on his own, and from the number of visitors to the house, a sinister connotation can be placed upon whatever the plan was. Thirdly, the only connection between the appellants and the deceased was that the deceased allegedly owed Mr Kennedy a significant sum of money which was being disputed in the courts. Fourthly, there was a possible immediate trigger for the events which took place; being the court order made on 17 May to produce certain financial documentation. That seems to have been the only proximate event to the incident. Fifthly, all three appellants were in the deceased's house. It is true that there is no specific evidence affecting all three appellants to describe precisely what did happen in the house and who was present in what room at the time any assault took place. Nevertheless, it could be legitimately inferred by the jury, from the evidence given of the deceased's condition in the Bank, that whatever had happened to the deceased had happened in the house. It is reasonable to conclude that all three would have been in the company of the deceased until Mr Kennedy's departure. There was evidence against both Mr Breslin and Mr Oliver that they had both been present when Mr Kennedy had struck the deceased. Sixthly, since the deceased was thereafter driven by Mr Breslin to the Bank and accompanied by Mr Breslin into the Bank, where £5,000 was withdrawn, it can be inferred that whatever had occurred in the house had prompted the journey and the withdrawal. From the injuries and distress proved and the ever presence of one of the appellants during the deceased's banking, it can be inferred, seventhly, that this withdrawal was against his will and in accordance with the appellants' wishes. Eighthly, since the money was handed over by the deceased to Mr Breslin and in part from Mr Breslin to Mr Oliver, it can be concluded, particularly in the absence of any explanation, that this was in connection with a plan which had been drawn up relative to the payment of money said to be owed to Mr Kennedy. Finally, the texts exchanged between Mr Breslin and Mr Kennedy thereafter, whereby "30" was to be paid, presumably by the deceased to Mr Kennedy, indicated a continuing direct link between the compulsory actions of the deceased and a benefit to all three appellants.

[13] These various circumstances and legitimate inferences provided sufficient proof that, as a result of a preconceived plan, the deceased was abducted from his home and taken to the bank, where he was forced to withdraw the money, which was then taken from him. Essentially, that amounted to proof of the libel. For these reasons the appeals against conviction, in respect of all three appellants, on this ground are refused.

Separate ground re "mixed statement"
[14] There is a separate ground of appeal relating to the trial judge's directions on mixed statements. The contention, under reference to Morrison v HM Advocate 1990 JC 299 and Scaife v HM Advocate 1992 SCCR 845, was that the directions on the statements made by Mr Breslin and Mr Oliver (supra), were inadequate. In particular, it was argued that there had to be a specific direction that the statements were "evidence of the truth of their content".

[15] What the trial judge did was direct the jury that statements made by accused persons constituted an exception to the rule excluding hearsay. Whilst statements made by persons outwith the courtroom should normally be ignored for the purpose of proving fact, those of accused persons fell within that exception. He directed the jury that this meant that the jury were entitled "to have regard to evidence about what an accused person said at some prior stage". This would include any statement which amounted to a denial of involvement in the alleged crime. The only conclusion which the jury could have drawn from what they had been told by the judge was that what was said by an accused person fell to be treated as evidence in the case. In that respect, the directions, which are required in terms of Morrison and Scaife, were given.

[16] The trial judge told the jury that what was said by an accused was part of the evidence in relation to that accused, being an exception to the hearsay rule. He directed them specifically, in any event, that if any evidence in the case, which included the statements by each of the accused, raised a reasonable doubt, then they must acquit (cf Scaife (supra)). In any case, it will be a question of circumstances as to what precise directions should be given. The directions given by this judge, in the circumstances here, were adequate. This ground also fails and thus the appeals against conviction are refused.

Sentence
[17] The trial judge was of the view that each appellant had been convicted of a concerted, violent and cowardly attack on an elderly and vulnerable man in his own home. This is undoubtedly the case, given that the deceased was aged 63 and a chronic alcoholic. The injuries noted on the deceased on 23 May 2011, after he had been found unconscious at his home, included bruising to his right shoulder, a fractured fifth rib, an abrasion and bruising on his right lower lip, an abrasion behind his right ear and another below the right earlobe. It is also of significance that the motivation for any violence was connected with court proceedings, consistent with an illegal attempt to collect a debt which was disputed in the sheriff court. The judge took the view that the only basis for distinguishing between the appellants was by comparison of their criminal records.

[18] Mr Kennedy was aged about 30 at the time of the offence. He has a relatively minor criminal record, consisting of two contraventions of the Police (Scotland) Act 1967, section 41(1)(a), in 2007 and 2011. He had been running his own haulage business and was a landlord in respect of several flats. He was single at the time of the offence, although he had been in relationships before and has two children. At the time of the compilation of the Criminal Justice Social Work Report, he continued to maintain his innocence and contended that all that had happened was that the deceased had instigated the meeting, but had been intoxicated when Mr Kennedy arrived. He had then left.

[19] Mr Breslin was about 40 at the time of the offence. He has a record of some significance, including an assault to injury (with a knife) in 2010, three assaults to injury and one simple assault in 2007 and another in 2006. He had not been sentenced to any custodial term, although he had been put on probation and fined significant sums. He is a plumber to trade and had been working for some time as a gas repair engineer. He has a partner of some 7 years standing. He too maintained his innocence at the date of the CJSWR, maintaining that he had simply gone to the address to discuss a cheap deal on diesel oil.

[20] Mr Oliver was aged 24 at the time. He has a significant criminal record, notably a conviction in 2007 for two drugs offences and hamesucken. He received 4 years cumulative for the drugs offences and 2 years consecutive for the hamesucken with a supervised released order. He had been released from this sentence, on licence, on 26 January 2011; only a matter of months before the current offence. He has a conviction in 2007 for assault to severe injury, which attracted a sentence of 18 months and another in 2006 for an assault to injury. He previously worked as a plasterer. He too maintained his innocence, stating that only Mr Kennedy had assaulted the deceased. All that had happened was that it had been agreed that Mr Breslin would drive the deceased to his work in Leith and that had been done. He did accept that he had been given several hundred pounds for his trouble.

[21] Having regard to the circumstances of this offence, the court is unable to disagree with the trial judge's description of it as a violent and cowardly attack on an elderly and vulnerable man in his own home. It is of particular significance that this offence was committed in the context of a legitimate and on-going court action. Although they were acquitted of culpable homicide, the jury accepted that the appellants had, in concert, inflicted "severe" injury on the deceased. For these reasons, the court considers that the judge was correct in concluding that the only basis for any significant distinction between the appellants was relative to their criminal records. He took these fully into account, including the fact that Mr Oliver had had his licence revoked and had therefore spent an additional period in custody in advance of the sentencing diet. The judge reached a balanced view on the three criminal records and he cannot be faulted in his selection of appropriate periods of incarceration. The appeals against sentence are therefore accordingly also refused.