Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 23

HCA/2015/1945/XC

Lord Justice General

Lady Paton

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION

by

DAVID BLACKWOOD

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  C Fyffe, Solicitor Advocate; Paterson Bell (for Levy & McRae, Glasgow)

Respondent: Edwards AD; the Crown Agent

9 February 2016

Introduction
[1]        On 4 June 2015, at the Sheriff Court in Dundee, the appellant was found guilty of a charge which libelled that:

“(1)      on 14 March 2015 at Nethergate, Dundee you ... and Colleen McPhee did assault David Leighton ... restrain him, repeatedly punch and kick him on the head and body and search inside a sleeping bag and you did rob him of a rucksack and a container of money;

you ... did commit this offence while on bail, having been granted bail on 6 March 2015 at Dundee Sheriff Court”.

The appellant was sentenced to 475 days imprisonment (60 days attributable to the bail aggravation), which had been discounted from 18 months, the appellant having previously pled guilty to the assault, but not the robbery.

The evidence
[2]        The evidence consisted of two police witnesses speaking to CCTV images.  These revealed that the appellant and Ms McPhee were with a group of people walking in the Nethergate at about 10 o’clock.  They approached the complainer, who was a beggar standing next to his sleeping bag and a cup.  They seized hold of him and punched him on the head and body.  Ms McPhee searched inside the sleeping bag, whilst the appellant took a step back and kicked the complainer.  The appellant and Ms McPhee walked away, but Ms McPhee went back and spoke to the complainer.  He was backing away.  There appeared to be an argument going on, with the appellant trying to get to Ms McPhee, but being prevented from doing so.  Ms McPhee and the appellant then went back to the complainer’s sleeping bag, rucksack and cup.  Ms McPhee picked up the cup and the rucksack.  The appellant was standing to her right.  Ms McPhee threw the contents of the cup and the rucksack onto the road.  The appellant and some other people in the group picked up the former contents of the cup and walked off. 

[3]        No evidence was led by the appellant.  Ms McPhee denied any assault or robbery.  She maintained that she had argued with the complainer, who had spat on her.  She admitted picking up and throwing the cup and rucksack.

Sheriff’s directions
[4]        The sheriff directed the jury that they required to return separate verdicts against each of the two accused.  She gave standard directions on concert, using the examples of pre-planned and spontaneous events.  She explained that the Crown case was that both accused had robbed the complainer with violence; that being the common criminal purpose.  The sheriff asked the jury to proceed in three stages.  First, they were to decide what evidence there was against each accused; secondly, if there was evidence to implicate them, to decide if there was a common criminal purpose; and, finally, if there was one, to decide whether each accused was party to that purpose and to what extent. 

[5]        The sheriff explained that the crime of robbery consisted of stealing another person’s property using violence or threats.  In order to prove the charge, the jury required to be satisfied that the particular accused, first, assaulted the complainer, secondly, intended to cause fear or injury with the object of taking his property, and thirdly, took his property.  An alternative of theft was available if any violence which had been used had been minor and had not overcome the complainer’s will. 

[6]        The jury returned with a question about the difference between theft and robbery.  The sheriff explained the difference again.  The jury said that they understood this.  When they returned again, the foreman initially said, in relation to the appellant, “for assault, guilty”.  In respect of Ms McPhee, he said, “on assault, guilty”.  There then seemed to be a problem as to whether these verdicts correctly reflected the jury’s deliberations.  The sheriff asked the jury to retire to consider the correct verdict.  This time, when they returned, the verdict in respect of the appellant was “guilty of assault and theft”.  The sheriff said that that option was not open to them.  The options were, first, assault and robbery; secondly, assault; or, thirdly, theft.  Assault and theft was not an option.  It was either assault and robbery, or assault on its own, or theft on its own.  Once more the jury were asked to retire and, on returning, they gave verdicts of “guilty” in respect of both the appellant and Ms McPhee. 

Submissions for the appellant

[7]        There were originally three grounds of appeal, but only two of these were insisted upon.  The first was that the sheriff had erred in repelling a submission of no case to answer in respect of robbery.  It was accepted that there was sufficient evidence of theft and of assault.  Essentially, the submission was that the incident had to be approached in three phases: first, the assault; secondly, the robbery by Ms McPhee; and thirdly, the recovery of the money by the appellant.  The jury had not been entitled to infer that the appellant had assaulted the complainer with the intention of robbing him.  

[8]        The third ground of appeal was that, having returned a verdict of guilty to assault and theft, the jury had been incorrectly directed that that had not been open to them.  The verdict was a competent one and should have been allowed to stand.  The jury could have concluded that the appellant had assaulted the complainer, had not robbed him, but had thereafter stolen the items at the conclusion of the incident. 

[9]        The advocate depute submitted that there had been ample evidence to support a verdict of robbery.  Concert had been demonstrated throughout (Stillie v HM Advocate 1992 SLT 279).  In assessing sufficiency, that there was no necessity to separate out the incident into three phases.  The sheriff had been entitled to regard the incident as a single one involving a joint attack and the removal of property by both accused. 

[10]      On the third ground, having regard to the particular libel, the crime was a single one of robbery, albeit that assault had, as was customary, been separately libelled (Gordon: Criminal Law (3^rd ed) para 16.10).  There was only one crime and therefore only one verdict open.

Decision
[11]      The appellant and Ms McPhee were both shown assaulting the complainer at the same time.  Ms McPhee was seen searching his sleeping bag during the course of this joint assault.  Both walked away before both going back to where the complainer’s possessions were.  Ms McPhee picked up the cup and rucksack.  The appellant subsequently removed some of the thrown items from the road.  In these circumstances, it was open to the jury to hold that the assault was linked with the search and removal of the items.  They were entitled to consider that the appellant had been engaged in a common criminal purpose with Ms McPhee to achieve that removal.  The sheriff was correct to repel the submission relative to the robbery.  She was entitled to approach the CCTV images, and the libel, as involving a single incident of violence and removal of property. 

[12]      In relation to the verdicts, the sheriff approached this matter correctly as viewing the event, as it was libelled, as a single episode.  That meant that there were only the three guilty verdicts open on what was one charge: assault only; assault and robbery; and theft only.  In these circumstances, the sheriff’s directions were correct.  This appeal must be refused.