APPEAL AGAINST CONVICTION BY BRANDON DOUGLAS AGAINST HER MAJESTY'S ADVOCATE

Factual and Procedural Background

On 4 September 2019 at the High Court at Aberdeen, the Appellant and co-accused were convicted of two charges: assault to severe injury and permanent disfigurement with robbery (charge (001)); and attempted murder and robbery (charge (005)). The Appellant was sentenced on 4 October 2019 to a cumulo sentence of 10 years and 3 months detention. The charges involved attacks on two separate complainers at their homes in Aberdeenshire on 21 November 2018. The Appellant appealed against conviction on charge (005), contending insufficient evidence demonstrated his active participation in the attempted murder and robbery, although he abandoned his appeal against sentence.

Legal Issues Presented

1. Whether there was sufficient evidence to justify the conviction of the Appellant on charge (005) of attempted murder and robbery, specifically regarding his active participation in the concerted attack.
2. Whether the trial judge erred in refusing the submission of no case to answer under section 97 of the Criminal Procedure (Scotland) Act 1995.
3. The admissibility and relevance of evidence relating to charge (001) in supporting the Crown's case on charge (005).
4. Whether the presence of a fourth male who did not actively participate in the attack creates reasonable doubt as to the Appellant's guilt on charge (005).

Arguments of the Parties

Appellant's Arguments

• The trial judge erred in finding sufficient evidence to convict the Appellant on charge (005).
• Active participation is required for criminal responsibility; mere presence is insufficient.
• Evidence from charge (001) was irrelevant and inadmissible for proving charge (005) due to the prohibition on similar fact evidence in Scots law.
• The offences charged under (001) and (005) were dissimilar in nature and method, undermining any inference of active participation in charge (005) based on charge (001) evidence.
• The complainer described three attackers and a fourth male who did not participate; the Appellant could be that fourth person, and the Crown failed to exclude this possibility.
• The evidence did not identify the Appellant as one of the active attackers; he was not seen running towards the locus with the black bag and was not positively identified as entering the house.

Respondent's Arguments

• There was sufficient evidence for the jury to conclude the Appellant was one of the three attackers involved in the concerted attack in charge (005).
• The jury were entitled to infer that all four occupants of the vehicle seen near the locus were participants in the common plan to assault and rob the complainer.
• The evidence from charge (001) was relevant and admissible as it showed the Appellant's conduct earlier that day, including being armed and intent on robbery of drug dealers, supporting the Crown's case on charge (005).
• Presence at the locus with a prior agreement to commit the crime suffices for criminal responsibility even if the accused did not personally inflict injury.
• The Appellant's admission to being "there" and the association with co-accused and the vehicle used in the attack supported the inference of active participation.
• Precedents support that an accused can be criminally responsible as part of a concerted attack without personally striking the victim.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by recognizing the circumstantial nature of the Crown's case, based on antecedent concert among the Appellant and co-accused. The key legal principle is that active participation in a concerted attack includes any role taken pursuant to a prior agreement, and mere presence without such agreement is insufficient for criminal responsibility.

The court accepted the Appellant's concession that he was "at or about" the locus during the commission of charge (005), corroborated by his admission and evidence placing him as an occupant of the vehicle used to reach the locus. The court further found that the evidence permitted an inference that the Appellant entered the complainer's house with the other males. The presence of a fourth male who did not actively participate was acknowledged, but the jury were entitled to conclude that all four males were part of a pre-arranged plan to assault and rob.

The court rejected the Appellant's contention that evidence from charge (001) was inadmissible or irrelevant. Although similar fact evidence is generally inadmissible in Scots law, the court found that evidence of the Appellant's conduct earlier the same day was relevant to establishing identity, intent, and common design for charge (005).

The court applied established principles from case law, including the Moorov and Howden rules, and the authority in Vogan v HM Advocate, affirming that participation in a common plan suffices for liability even if the accused did not personally inflict injury. The court found no miscarriage of justice in the trial judge's rejection of the submission of no case to answer.

Holding and Implications

The court REFUSED the appeal against conviction on charge (005).

The holding confirms that, in cases of concerted attack, evidence of participation in a prior agreement and presence at the scene suffices for criminal responsibility, even absent direct evidence of striking blows. The decision affirms the admissibility of evidence from related offences on the same day to establish common design and identity, within the limits of Scots law on similar fact evidence. No new precedent was set; the ruling applies existing legal principles to the facts before the court, resulting in the upholding of the Appellant's conviction.