Scottish High Court of Justiciary Decisons

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST CONVICTION BY JOHN DOCHERTY AND DON TEMPLETON AGAINST HER MAJESTY'S ADVOCATE [2021] HCJAC 36 (11 February 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_36.html
Cite as: [2021] HCJAC 36

[New search] [Printable PDF version] [Help]

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2021] HCJAC 36

HCA/2019/235/XC

HCA/2019/258/XC

Lord Justice Clerk

Lord Brodie

Lord Turnbull

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

(1) JOHN DOCHERTY and (2) DON TEMPLETON

Appellants

against

HER MAJESTY'S ADVOCATE

Respondent

First Appellant: J Keenan, Sol Adv; Paterson Bell, (For Bruce Short & Co, Dundee)

Second Appellant: McCluskey; Faculty Services Limited (for Houston Law, Glasgow)

Respondent: M Meehan, QC, AD; Crown Agent

11 February 2020

[1]

The two appellants were co-accused on a charge of attempting to murder by shooting

which took place at a farm in Bridge of Weir on 31 October 2017. The only issue in the appeal

is whether there was a sufficiency of evidence against each appellant, it being maintained that

the trial judge erred in repelling no case to answer submissions.

[2]

The case was a circumstantial one. There were four sets of cctv footage of importance.

Between 14.09.40 and 14.12.12 Mercedes 203 Avant Guard estate motor car WA02

WFW was driven into the Tesco petrol station at Bridge Street, Linwood where fuel was

added. The appellant Don Templeton was identified as the driver. The vehicle had been

added to his insurance policy on 27 October 2017. The appellant Docherty was in the rear

passenger side seat. At that time, he was wearing a burgundy colour top. He exited the

vehicle and entered the forecourt shop where he paid for the fuel, and some drinks. He got

back into the same seat. The front passenger seat remained unoccupied throughout.

CCTV footage from Darluith Road, Linwood between 14.22.36 to 14.23.14 showed a

similar Mercedes estate travelling from Linwood towards Houston in the direction of the

farm.

CCTV at the farmhouse between 14.26.06 and 14.29.56 showed a Mercedes estate

motor car being driven into the entrance of the farm 2 minutes and 52 seconds after it had

been seen last in the Darluith Road CCTV 1.3 miles away. On entering the farm, the Mercedes

turned immediately to the driver's right, in the direction of the motor workshop where the

complainer James McGurk and a Crown witness, Josh Kerr, were working. The Mercedes

remained out of sight of CCTV directly at the locus. However, the complainer, having been

shot, was seen hobbling in the yard. Immediately thereafter the Mercedes was driven off at

speed, and was then seen reappearing on CCTV from the direction of the workshop. It was

driven at speed and exited the farm.

Thereafter at the Darluith Road CCTV from 14.32.18 to 14.32.50 the Mercedes estate

WA02 WFW was captured on the Darluith Road CCTV travelling from the direction of the

farm back towards Linwood. An eye witness spoke to seeing the vehicle leaving the farm as

fast as you could go on that stretch of road. It is not disputed that it is a reasonable inference

from the whole of the CCTV footage that the Mercedes vehicle to which it relates was the

same vehicle throughout, namely WA02 WFW.

[3]

The complainer gave evidence that on hearing a vehicle run over the gravel outside the

workshop he walked outside. He did not see or hear anyone, then heard a bang and was sent

flying. He had been shot in the leg (the medical evidence indicated that the weapon used was

a shotgun). He knew the appellant Templeton; they had "been pals for years" and had

spoken often by phone. He identified Templeton on the petrol station CCTV. The witness

Kerr was in the workshop with McGurk when he heard a voice from the bottom part of the

workshop shout "alright mate". McGurk then walked towards the voice saying "That's Don's

pal, I'll go and deal with it". He walked out of sight at which point Kerr heard a bang which

he thought was a gunshot. On hearing a second shot he ran away and did not look back.

[4]

The day before the incident, McGurk asked Kerr to drive a van for him. Kerr drove

the van to Bridge of Weir. He stayed over at McGurk's house. In his presence McGurk

received a telephone call. Kerr heard him say "Hello, Don". He heard the voice on the other

end say "They're going to blow up your motors". McGurk replied that his vehicles were all

insured. The voice then said, "I'm not bothered about the van, I just want my tools back".

Submissions

[5]

The central submission for Docherty was that he had not been identified in the vehicle

after the garage; and that the reference to "Don's pal" whilst clearly referring to someone

other than Templeton was vague and did not allow an inference that it referred to Docherty.

[6]

For Templeton the submission adopted the argument that the terms "It's Don's pal"

were not sufficient to be taken as referring to Docherty. It was conceded that it was a

reasonable inference that the appellant was driving the vehicle throughout, including at the

farm. However, there was insufficient evidence to convict him on an art and part basis with

the shooter. There was no evidence of any agreement involving a weapon. The only basis

upon which an inference could be drawn as to his involvement in any plan was the evidence

the car sped away from the locus, but this does not demonstrate either prior or spontaneous

agreement, but only an awareness that there was an urgent need to depart the locus.

[7]

A further ground of appeal for Templeton based on a material misdirection relating to

concert as applicable to him was conceded by the Crown.

[8]

The advocate depute submitted that there were three compelling features which

supported the inference of a plan between the accused, against the background of the

evidence as a whole. These were: the relatively remote location of the workshop, which was

up a track on farm premises off a country road; the departure of the car at high speed

immediately after the shooting; and, coupled with that, the very short time it was at location,

which was not suggestive of a visit for a legitimate purpose.

Analysis and decision

[9]

It is in the nature of circumstantial evidence that it may be capable of bearing more

than one interpretation. As was noted in McPherson v HMA 2019 SCCR 129, the critical

question is whether an inference of guilt is a reasonable one to draw from the evidence. If so,

the matter should go to the jury who will then determine whether in the circumstances they

consider that they should draw that inference, having regard to the weight they think should

be attributed to the various pieces of evidence taken together. The point is not to look at

individual circumstances but to ask whether these individual circumstances, taken together,

are capable of supporting an inference of guilt beyond reasonable doubt.

Docherty

[10]

In our view the evidence would enable the jury to draw the inference that Doherty was

still in the car when it pulled off the road to the workshop; that he was the person identified as

"Don's Pal"; and that he was the shooter. The evidence against him was that he was seen in

the rear seat of the vehicle when it left the garage, in the company of the appellant who was

driving the car. The evidence suggests he was not a mere passenger since he paid for the fuel,

using cash and presenting his keyring card, associated with his mother in law's Tesco account.

This aids the inference that he remained in the car thereafter, and strengthens the evidence of

his association with the driver, whose fuel he had paid for. It seems unlikely that he would

have done this if he did not intend to remain in the vehicle, or was not party to whatever was

intended. The words described as part of the res gestae were capable of an inference that the

individual who spoke from the end of the workshop was a friend of the appellant Templeton,

who was both known to the complainer, and was driving the very car in which the person

had arrived. It is an almost irresistible inference that this person was the shooter, and that this

was Docherty; and that he made his getaway in the vehicle. It may, of course be that other

inferences could be drawn. The appellant gave evidence that he had exited the vehicle before

it got to the farm. Reference during the appeal was also made to a joint minute agreed during

the defence case that a police officer had viewed the footage 14.22.36 to 14.23.14 "as showing"

the vehicle with a front seat passenger wearing a white or light top. What exactly was made

of this at trial is not clear it seems that it could not be seen when the footage was shown at

normal speed. However, this evidence would not in our view affect the sufficiency of the

case, and was material going only to weight, and for the jury to ask whether it meant that they

should not draw the inference which the Crown asked them to draw.

Templeton

[11]

As to Templeton, he was the driver of the vehicle throughout. It was a reasonable

inference that the "Don" with whom the complainer appeared to have an issue the previous

night, and the "Don" whose friend was identified at the locus, was one and the same person

as the appellant. Of course, the jury could be asked to conclude that this was all a

coincidence, but the inference would be a reasonable one. The vehicle was driven to the

workshop, and was on the farm premises as a whole for a very short period of time. At best

for the defence this was a period of 3 mins 50 secs, if the footage (3) is to be taken as recording

that time. The vehicle could have been stationary for only a very brief moment. This would

accord with the trial judge's note that the evidence showed that the vehicle drove off

"immediately" after the shooting. It is a reasonable inference that the engine had not been

turned off during the short period when the vehicle must have been stationary; in other

words, it was being kept ready for a swift departure. The fact that Templeton remained in the

vehicle lends support for that inference. The weapon used was a shotgun it is a reasonable

inference that the driver of the vehicle must have seen the passenger with such an item, in the

car and on exiting it at the workshop. From all of this evidence it is a reasonable inference

that there was a prior plan to shoot the complainer, of which the appellant Templeton was a

knowing participant.

[12]

In these circumstances both appeals so far as based on sufficiency must fail. We

accept, however, that the Crown was correct to concede the appeal against Templeton so far

as based on misdirection. We will accordingly appoint the case to a hearing on the effect of

this.