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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> NOTES OF APPEAL AGAINST CONVICTION BY (FIRST) ZAK BENNETT AND (SECOND) IAN DAVID MOYES AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_12 (05 March 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_12.html
Cite as: 2020 GWD 13-189, [2020] ScotHC HCJAC_12, 2020 SCCR 221, 2020 JC 191, [2020] HCJAC 12
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Glennie
Lord Turnbull
[2020] HCJAC 12
HCA/2019/410/XC and HCA/2019/392/XC
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTES OF APPEAL AGAINST CONVICTION
by
(FIRST) ZAK BENNETT and (SECOND) IAN DAVID MOYES
Appellants
against
HER MAJESTY’S ADVOCATE
Respondent
First Appellant: Graham QC; Ross and Fox, Glasgow
Second Appellant: Forbes; Paterson Bell
Respondent: Edwards QC AD; the Crown Agent
5 March 2020
General
[1] On 31 May 2019, at the High Court in Glasgow, the appellants, along with their two
co-accused, namely, Chloe Walker and Courtney McCreaddie, were found guilty of four
charges, all relating to events on 7 July 2017 at addresses at Dimsdale Crescent, Wishaw, and
Ryehill Road, Lumloch Road and Cortmalaw Gardens, all Glasgow. The first charge was
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one of possession of a firearm, with intent to cause EG and JM, who lived in Ryehill Road, to
believe that violence was to be used against them; contrary to section 16A of the Firearms
Act 1968. The second was a contravention of section 38(1) of the Criminal Justice and
Licensing (Scotland) Act 2010, by 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. The third
was a breach of the peace in Lumloch Road by repeatedly discharging a firearm. The fourth
was again possession of a firearm, this with intent to cause AD, who lived at Cortmalaw
Gardens, to believe that violence would be used against her; again contrary to section 16A of
the 1968 Act. The appellants were sentenced to 8 years imprisonment.
Evidence
[2] Ms Walker had hired a black Mercedes car. From evidence obtained from the
tracking device which was fitted to that car, it was not disputed that she had driven it from
the appellant Moyes’s house at Dimsdale Crescent, Wishaw to the locus at Ryehill Road
shortly before the events which took place there at about 3.00am. Evidence, obtained from
the mobile phones of the appellant Bennett, Ms Walker and Ms McCreaddie, placed them in
the car, along with a fourth person. When the car arrived at Ryehill Road, two persons got
out, one of whom had a firearm. The events libelled then took place. EG, who was the
mother of JM, was confronted by the two, who wanted JM to leave the house. The two men
then returned to the car, which left and made its way to Lumloch Road. Two men again got
out. They entered the back garden of an address at Cortmalaw Gardens, which was the
home of AD. The gun was discharged twice. The car then returned to Dimsdale Crescent,
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Wishaw. The car’s engine had not been switched off from 2.25, when it left Dimsdale
Crescent, until it returned there at 3.55.
[3] It was not disputed that there was sufficient evidence to identify the appellant
Bennett as being in the appellant Moyes’s house, both before and after the incidents and in
the car during its journey to and from the loci. At 19.33 on 6 July, the car had picked
Mr Bennett up at his own house and taken him to Dimsdale Crescent. Later, after the
incidents, at 6.03, it dropped him back home. Ms Walker texted Ms McCreaddie to that
effect. Mr Bennett’s appeal concerned the judge’s directions about the import of certain
WhatsApp messages in advance of the incidents. One was from Ms McCreaddie to
Ms Walker at 19.20 on 6 July and read “Can u pick that Zac up got Moysie? The hot one
who was asking for a hot pal !!!? Drop them back here .....” and later, at 1.54 on 7 July, “If u
drive he’ll give you a couple of hundred he said x”.
[4] The evidence against the appellant Moyes consisted, first, of four particles of
firearms residue found on a pair of grey jogging bottoms, which were recovered from his
house at Dimsdale Crescent on 27 July 2017. Mr Moyes’s DNA was on the trousers,
indicating that he had been the wearer of them at some point. Evidence from CCTV images,
in relation to Cortmalaw Gardens, showed a person wearing grey clothes. AD had said that
one of the men, who had got out of the car, had been wearing a grey tracksuit. There were
two other articles found in Mr Moyes’s house, notably a mask (on which his DNA was also
found) and a hat, on each of which there was a single particle of firearm’s residue, which
was said not to be scientifically significant.
[5] Secondly, there was a photograph on a phone, attributed to Ms Walker, timed at
15.29 on 6 July, depicting another phone, itself showing an image of a shotgun, similar to the
one which was used in the incident, on the floor of a bedroom in the appellant Moyes’s
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house. Thirdly, there was another photograph on Ms Walker’s phone, timed at 4.41am on
7 July, showing the Mr Moyes and Ms McCreaddie together. There was another image,
dated 14 July, on a different phone, showing Ms Walker and Mr Bennett on a bed with the
shotgun. The shotgun shown lying on a floor in Mr Moyes’s home was a pump action
shotgun of Italian origin which, according to an expert witness who had viewed the CCTV
images of the discharges, was capable of producing the flashes recorded.
The judge’s charge
[6] In the course of his directions to the jury, the trial judge explained the meaning and
effect of concert. Specifically in relation to the WhatsApp messages, he gave a standard
direction about statements made by one accused outwith the presence of another. He
continued:
“But if you’re satisfied that persons accused were involved jointly in committing a
crime then what’s said or written by any one of them in preparing for or carrying out
that crime, that’s to say in furtherance of the common purpose, is evidence against
any of the others. And that’s so whether or not the others were present or were part
of the group message chat at the time. And that’s because in such a situation, what
was said can be inferred to be part of their ongoing collaboration in carrying out the
crime. So if you’re satisfied that a statement about any one of the others was made in
the course of planning for or carrying out the crime, its content are evidence against
any of the other persons accused who was mentioned. But if you’re not satisfied that
concert or joint criminal responsibility has been proved then you must disregard
what was said about a person co-accused who at the time it was said or messaged or
texted was not present or was not part of the group chat, in other words, in that
situation, if you’re not satisfied that concert or joint responsibility has been proved,
the general rule applies.”
The jury subsequently asked:
“With regards to Zak Bennett, does reliance on text messages between Chloe Walker
and Courtney McCreaddie hinge upon whether or not it can be established that some
or all of the accused were acting in concert”.
The trial judge answered this as follows:
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“... as regards Zak Bennett, whether or not you can make reliance on text messages,
or WhatsApp messages concerning him between Chloe Walker and Courtney
McCreaddie depends on two factors. The first is this, before you could rely on
anything concerning him messaged between these two you would need to have
come to the view that the three of them together were acting in concert in furtherance
of a common plan, that’s the first thing. And second thing is that when the messages
were sent concerning him or received, that was happening either in preparation of
executing the common plan or in furtherance or in the carrying out of the common
plan, in other words that communications concerning him were concerned with the
furtherance of the common plan. If the messages concerning him were sent or
received after the commission of the crimes set out in the charges, then that would be
too late and the messages concerning him would not be evidence against him”.
The trial judge dealt with the images caught on CCTV as follows:
“We saw footage which depicted the rear garden of 5 Cortmalaw Gardens and there
was other footage taken from public space CCTV cameras ... tracking the progress of
the black Mercedes through Wishaw and Glasgow ... and we also had evidence of
images taken from the Samsung mobile phone belonging to Chloe Walker and there
were photographs and a video. Now, all of that is part ... of the evidence in the case
and it’s important that you should realise that you are entitled to form a judgement
about what these images show just as you are entitled to form a judgement about eye
witnesses’ descriptions about what is said to have happened. Now, we did have
witnesses who gave evidence about what they say is happening in these CCTV and
phone images and who is shown in them ...
... Now, you are entitled in considering all of that evidence to consider
whether these witnesses are credible and reliable. You may find the evidence of a
witness helpful in interpreting what is shown in these images but you are not bound
by what any of the witnesses said in fact. You are entitled to form your own
judgement about what the images show, just as you form a judgement about an eye
witness’s description of something that has happened. So you can take into account
in determining the facts who you consider to be shown in the images and what you
consider the images depict as happening. You can have regard to the CCTV images
and the photos when deciding who did what, so you form your own conclusions
about the CCTV evidence regardless of what any witness has said.
Now there was some comment made in the defence speeches about the
quality of the footage at Lumloch Road, it was suggested it wasn’t that clear or
grainy so that the ... witnesses’ evidence about what it shows is happening is
possibly not reliable, so you’ll have to consider that ... you’ll have to consider the
quality of the footage in assessing the reliability of that evidence”.
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Submissions
First appellant (Bennett)
[7] The appellant Bennett submitted that the trial judge misdirected the jury in relation
to the text messages. In a case involving concert, comments made, other than by a particular
accused, may be admissible in the case against that accused in two situations. The first was
where the concerted action was already ongoing and the accused was a party to that activity
was where the comments themselves demonstrated participation in criminality (cf Johnston v
accused, it had not been established that there was any ongoing criminality on the part of
Mr Bennett. There was no evidence of concert on his part at the time.
Second appellant (Moyes)
[8] The appellant Moyes maintained that the trial judge erred in repelling a submission
of no case to answer. The case had been a wholly circumstantial one; the test to be applied
a whole did not permit the required inference of guilt. In relation to the jogging bottoms,
neither the DNA nor the firearm’s discharge residue could be linked in time or place to the
incidents, in the absence of identification of the bottoms by those who had either witnessed
the incident or viewed the CCTV images of the Cortmalaw Gardens incident. The
telecommunications evidence in relation to the three co-accused did not incriminate
Mr Moyes. The image of Mr Moyes and Ms McCreaddie had been taken three quarters of an
hour after the last incident. There was nothing in it to link Mr Moyes to the loci or a firearm.
The photograph of the shotgun on the floor of a bedroom in Mr Moyes’s home was not
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capable of giving rise to an inference of guilt. The iPhone on which the photograph of the
gun had been taken had not been traced. The image of Ms Walker and Mr Bennett lying on
a bed with a shotgun, which was similar to the one shown in the CCTV images, did not give
rise to an inference of guilt on the part of Mr Moyes (see McPherson v HM Advocate 2019
SCCR 129 at para [8]).
[9] The trial judge had erred in inadvertently misdirecting the jury about what they
were entitled to find proved from their viewing of the CCTV images at Cortmalaw Gardens.
It was not open to the jury to form their own conclusions from the CCTV images in so far as
the identification of Mr Moyes was concerned. The quality was so poor that no
identification was possible. The directions may have confused the jury (Afzal v HM
distinguishable given the quality of the images.
Crown
[10] In relation to Mr Bennett, the advocate depute submitted that, at the time of the
WhatsApp messages, there was evidence that Mr Bennett was involved in concert with the
others. Matters had moved from preparation to perpetration. Whether the incriminatory
messages were sent or received in furtherance of that common criminal purpose, and
therefore admissible against the appellant, was a question of fact. The message to
Ms Walker, to pick up Mr Bennett and bring him to where the others were, had been in a
context in which she had not met him before. At the time of the message about the money,
both women had been in Mr Moyes’s house. The shotgun was shown in the house in the
photograph timed at 15.29 on 6 July, by which time perpetration was underway. The
interrelationship of the activities and the exchange of messages painted a clear and logical
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picture of all accused working together in furtherance of the common criminal purpose. The
jury were entitled to take the messages into account. In any event, given the totality of the
circumstantial evidence against Mr Bennett, there was no prospect of the jury coming to a
different verdict.
[11] In relation to the appellant Moyes, the several circumstances, when taken together,
were capable of supporting the inference that he had been acting with the others in
furtherance of the common criminal purpose. There was no need for the jogging bottoms to
have been spoken to by witnesses who were either at the scene or who had viewed the
CCTV. The CCTV images had been of poor quality and it was not possible to identify
anyone from them. The images were not relied upon by the trial advocate depute as
evidence of identification. It was open to the jury to assess whether Mr Moyes was one of
the persons shown in the images on the basis of the other circumstantial evidence. There
was no misdirection. The trial judge had cautioned the jury about the quality of the footage.
In any event, given the totality of the evidence, there had been no miscarriage of justice.
Decision
[12] Evidence, of Ms McCreaddie contacting Ms Walker prior to the incidents with a view
to picking up the appellants and telling her that, if she were to drive then, she would be paid
for it, is not hearsay. It is a fact which is relevant to the commission of the crime by all
participants not long afterwards. It is part of the proof relative to the preparation and
perpetration of the crime. As such it is admissible against all of the accused in so far as it
sheds light on their participation in concert in what occurred.
[13] The prohibition against hearsay finds it true focus in relation to reports of what a
person had said outwith the courtroom after the event, with which the prosecution or
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litigation is concerned, has occurred. It does not apply to testimony concerning what was
said by persons, especially ultimate alleged participants, prior to, or at the time of, the event
where that is relevant to proof of the commission of the crime and its perpetrators. Evidence
of “the whole thing that happened”, that is the res gestae, is admissible (see generally
Davidson: Evidence para 12, 13 et seq; Walker & Walker : Evidence (4th ed) para 8.5.1 et seq; and
the dissenting opinion of Lord Philip in Hamill v HM Advocate 199 JC 190 at 202-204, citing
Dickson: Evidence (Grierson Ed) paras 254 and 256). As Dickson put it (at 363, (cited in
“... all words uttered or documents issued by one conspirator in furtherance of the
common design, and those which accompany acts of that description, and so form
part of the res gestae may be used against all the other prisoners, provided there be
prima facie proof that they engaged in the plot” (see also § 257).
[14] The trial judge’s directions were overly favourable to the appellant. There was no
need for concert to have been proved in advance. It may be that it is the content of the
WhatsApp messages themselves which ultimately proves the concert. On this basis the
appeal in Mr Bennett’s case must be refused.
[15] The trial judge’s directions on what the jury might make of the CCTV images of
events at Cortmalaw Gardens were unexceptional. It was not suggested by the Crown that
the appellant Moyes could be identified from the images and the judge did not say so either.
The significance of the images was, as the judge said, in relation to gauging the testimony
the images. The judge’s passing reference to the jury taking into account the images in
determining who was shown in them cannot reasonably be interpreted as meaning that the
jury could identify the appellant solely from the images themselves.
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[16] The circumstantial case against the appellant Moyes was a compelling one. The car
which took the perpetrators to and from the loci left from, and returned to, his address.
Firearms residue was found on clothing in his house. The clothing was linked to him by the
DNA findings and, in relation to the tracksuit bottoms, linked also to the CCTV images and
AD’s description of what one of the assailants had been wearing. Asking AD, or the police
officer who viewed the images, to comment on the similarity of the bottoms in court was
neither necessary nor likely to have been productive. The photograph of a shotgun, which
was present in Mr Moyes’s house during the day prior to the incidents, completes the
compelling narrative. In these circumstances, there was undoubtedly a case to answer. His
appeal against conviction is also refused.