APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Eassie Lady Clark of Calton	[2011] HCJAC 59 Appeal No: XC281/10 OPINION OF THE COURT delivered by LADY CLARK OF CALTON in NOTE OF APPEAL AGAINST CONVICTION by FRANCIS JOHN PATRICK DORIS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: M.E. Scott, Q.C., C. Mitchell; BCKM, Edinburgh

Respondent: Miller, Solicitor Advocate, A.D.; Crown Agent

17 June 2011

Introduction
[1] On 19 March 2010 the appellant and his co-accused Martin Black were convicted after trial at the High Court at Edinburgh on charge (1) (as restricted) and charges (6) and (7) in the following terms:

"(1) between 1 June 2008 and 6 July 2008, both dates inclusive, at 20/1 Colinton Road, Edinburgh and elsewhere in Edinburgh, you MARTIN WILLIAM BLACK and FRANCIS JOHN PATRICK DORIS did conspire to assault and murder Kevin John Martin, c/o Lothian and Borders Police, Edinburgh and in pursuance of said conspiracy you did:

(1) (a) advise Iain Bower Gillespie, c/o Lothian and Borders Police, Edinburgh that you intended to discharge a firearm at and kill said Kevin John Martin;

(b) have in your possession a stolen motor vehicle, registered number SK54 PYZ, bearing a false number plate, a quantity of firearms and ammunition, a silencer for said firearms, a crossbow and bolts, a quantity of balaclavas, face masks, paper suits and disposable gloves, a quantity of knives, a petrol can and a quantity of tarpaulin to be used in the commission of said assault and murder of said Kevin John Martin;

(c) advise Claire Frances Lizanec and Connie Margaret Comrie, both c/o Lothian and Borders Police, Edinburgh of your intention to track down and kill said Kevin John Martin by means of shooting him whilst showing them said firearms, crossbow, face mask, balaclavas, knives, petrol can and your intention to destroy said motor vehicle registered number SK54 PYZ and to dispose of any evidence of any crime committed;

you FRANCIS JOHN PATRICK DORIS did commit this offence while on bail, having been granted bail on 6 May 2008 at Edinburgh Sheriff Court;

(6) on 6 July 2008 at 20/1 Colinton Road, Edinburgh you MARTIN WILLIAM BLACK and FRANCIS JOHN PATRICK DORIS did have possession of a firearm, namely a weapon adapted to discharge ammunition to which Section 1 of the aftermentioned Act applies without holding a firearms certificate in force at the time: CONTRARY to the Firearms Act 1968, Section 1(1)(a) as amended by the Firearms Amendment Act 1998;

you FRANCIS JOHN PATRICK DORIS did commit this offence while on bail, having been granted bail on 6 May 2008 at Edinburgh Sheriff Court;

(7) on 6 July 2008 at 20/1 Colinton Road, Edinburgh you MARTIN WILLIAM BLACK and FRANCIS JOHN PATRICK DORIS did have in your possession without holding a firearm certificate in force at the time ammunition to which Section 1 of the Act aftermentioned applies, namely a quantity of .22 ammunition:

CONTRARY to the Firearms Act 1968, Section 1(1)(b) as amended by the Firearms Amendment Act 1998;

you FRANCIS JOHN PATRICK DORIS did commit this offence while on bail, having been granted bail on 6 May 2008 at Edinburgh Sheriff Court."

[2] Charges (2), (3), (4) and (5) were withdrawn in the course of the trial. These charges related to fraudulently using a licence plate; being concerned in the supply of cocaine; assault; and a breach of the peace. Paragraphs (d) and (e) of charge (1) were deleted by the jury.

[3] The appeal which was argued related only to conviction in respect of charge 1.

The note of appeal

[4] On 14 January 2011 counsel for the appellant informed the court that ground 2 of the note of appeal (the Cadder ground) was no longer insisted upon. At the appeal hearing on 26 April 2011, counsel for the appellant substantially departed from the terms of the note of appeal. Counsel conceded that the ground of appeal did not adequately reflect the submissions now sought to be advanced and that these submissions would not have been anticipated by the trial judge. The Advocate depute intimated that he was able to deal with the submissions of the appellant, of which he had had some notice. We considered that a further report was unnecessary. Counsel conceded before us that the existence of a conspiracy involving a person or persons other than the two accused did not form part of the Crown case. The appeal was therefore further restricted in scope. A written outline submission with references to the evidence and the judge's report was made available to the court.

Documents considered

[5] During the appeal hearing, reference was made to the trial judge's report, which summarised the factual background to the offences and commented on the ground of appeal, as stated. There was also a supplementary report by the trial judge, but that related to a ground of appeal not insisted in. Reference was made to the closing speeches on behalf of the appellant and Martin Black and the charge of the trial judge. At an earlier procedural stage, defence counsel had requested a transcript of the evidence of the complainer in charge (1), Kevin Martin. That evidence was available and referred to in part.

Summary of the issues in the appeal

[6] Counsel for the appellant did not dispute that there was a sufficiency of evidence in relation to the appellant. Her criticism was that the jury was not properly directed to look at the evidence in relation to the appellant separately from evidence relating to Martin Black. She was also critical of the fact that the trial judge did not specifically direct the jury in relation to evidence which might suggest there was some form of conspiracy between Martin Black and persons other than the appellant, particularly, Charles McKinley, and did not direct the jury how to deal with that evidence.

Submissions by senior counsel for the appellant

[7] Counsel submitted that there was overwhelming evidence in relation to Martin Black showing that he had made preparation for killing, and intended to kill, the complainer Kevin Martin. The position of the appellant was very different. There was a foundation in the evidence for an alternative explanation for the appellant's association with Martin Black. That evidence came from Kevin Martin. His evidence was to the effect that the appellant was working for him, Kevin Martin, "as an inside man" to observe the actions of Martin Black and to provide information to Kevin Martin. Counsel submitted that the defence position was to the effect that, although Martin Black may have been involved in a conspiracy, it was not a conspiracy with the appellant. Against that background, it was submitted that it was incumbent on the trial judge to direct the jury very clearly that they required to treat the evidence in relation to the appellant and Martin Black separately and to direct the jury to have regard to the defence position of a conspiracy with others not involving the appellant.

[8] Counsel submitted that the evidence fell into three main chapters. There was evidence that, as a result of the history of financial dealings involving Kevin Martin and Martin Black, Martin Black had a motive to kill Kevin Martin. Secondly, there was direct eyewitness evidence from Claire Lizanec and Connie Comrie that the appellant and Martin Black boasted of their involvement in a plot to kill Kevin Martin and showed these witnesses the weapons which they had in their possession for that purpose. According to these witnesses, both the appellant and Martin Black were involved in progressing the plan by acquiring the red Mercedes car, placing weapons in it, and driving it to a location to wait for Kevin Martin. That exercise having failed, the witnesses Claire Lizanec and Connie Comrie spoke to another occasion on 2 July 2008 when the appellant and Martin Black spoke again of their plans to murder Kevin Martin. The third chapter of evidence related to the three cars used in the conspiracy and the items recovered when a search was made under warrant. The items recovered included firearms. Counsel submitted that there was overwhelming evidence that Martin Black had control at the relevant time of these cars and there was forensic science evidence linking Martin Black to some of the weapons recovered.

[9] Counsel submitted that the evidence was thus overwhelming in relation to Martin Black. She submitted that there was a danger in this case that the appellant would be "dragged in" because of the evidence of guilt of Martin Black rather than evidence pointing to the guilt of the appellant. The evidence, she submitted, disclosed that Martin Black was involved in some plan to kill Kevin Martin but that plan involved a person or persons other than the appellant. It was conceded that neither Martin Black nor Charles McKinley, both of whom gave evidence, was cross-examined to the effect that there was a conspiracy between them. There had been no formal incrimination of Charles McKinley.

Submissions by the Advocate depute

[10] The Advocate depute pointed out that no objection had been taken on behalf of the appellant to the general evidence which had been led about the motivation and actions of Charles McKinley. He emphasised that it was never submitted to the jury by the Advocate depute at the trial that Charles McKinley was part of a conspiracy. The Crown case was founded solely on the contention and the evidence that there was a conspiracy between the appellant and Martin Black.

[11] The Advocate depute drew attention to the position adopted by counsel for the appellant at the trial. Counsel for the appellant did not cross-examine Charles McKinley. The case presented on behalf of the appellant to the jury was that:

"Frank Doris was involved in no general way in murdering Kevin Martin. The evidence shows that Frank Doris was in no conspiracy. The Crown, ladies and gentlemen, failed to prove he was involved in any such conspiracy. At the very least given the evidence of Kevin Martin ... there must be a reasonable doubt that Frank Doris was involved in anything approaching a conspiracy" (Transcript page 140, line 16 - 141, line 7).

[12] The Advocate depute submitted that the trial judge made it plain that the jury should consider the case against each accused separately and that the jury could not convict in relation to charge (1) unless they were satisfied beyond reasonable doubt that both the appellant and Martin Black were involved in the conspiracy libelled in charge (1). He submitted that if the jury are taken to have followed the trial judge's directions, as they must do, on the directions given by the trial judge the jury could only convict by concluding that the two accused conspired with each other and not with anyone else. The Advocate depute submitted that there was no misdirection and no miscarriage of justice. He invited the court to refuse the appeal.

Discussion

[13] It is necessary to consider the submissions made and the charge of the trial judge in the context of the case as presented to the jury by counsel for the appellant and the Advocate depute. There is no dispute about the legal sufficiency of the evidence in relation to the appellant. The appellant did not give evidence. He gave mainly "no comment" answers in the police interview but it was accepted by the trial judge that there was a "mixed statement" (page 14, line 19 to page 15, line 24) and the jury were so directed. The appellant did not suggest in that statement that there had been a conspiracy between others or that, while ostensibly acting along with Martin Black, he had been secretly acting in the interests of Kevin Martin.

[14] At the trial, the Advocate depute narrated to the jury the parts of the evidence on which he relied in respect of each accused in relation to charge (1). The Advocate depute submitted that the evidence against each of the accused was overwhelming and demonstrated that Martin Black and the appellant were involved in a conspiracy to murder Kevin Martin.

[15] Trial counsel for the appellant submitted to the jury that the two main Crown witnesses, Claire Lizanec and Connie Comrie were incredible and unreliable (pages 103-127). He founded on the evidence of Kevin Martin to the effect that he had asked the appellant to assist him in relation to his problems with Martin Black and that is what the appellant did. Counsel for the appellant invited the jury to accept that the evidence of Kevin Martin was all true (page 131-140). Counsel distinguished the motivation of Martin Black from that of the appellant, whom counsel stated was merely assisting Kevin Martin and had no plans to harm him. Counsel for the appellant also highlighted the relationship between Charles McKinley and Martin Black and disassociated the appellant from that (page 144, line 22 - 145, line 23). Counsel also dealt with the evidence in relation to the recovery of various items under the search warrant.

[16] We note that is now conceded that at trial the Advocate depute presented the case clearly on the basis that the Crown alleged conspiracy between only two people, the appellant and Martin Black. We consider that the major thrust of the defence position was that the witnesses on whom the Crown relied were incredible and unreliable and that the appellant, according only to the evidence of Kevin Martin's understanding of matters, was working for Kevin Martin and was not involved in any conspiracy to harm him. The reference to the part which others, including Charles McKinley, may have played was not a major part of the defence case. This is not a case in which there was a special defence of incrimination of Charles McKinley lodged on the part of the appellant. Charles McKinley was not cross-examined on behalf of the appellant. As already mentioned, the appellant did not give any evidence and in his police interview he did not suggest that he was working for Kevin Martin.

[17] We now turn to consider the charge. The trial judge stated in the early part of his charge that "looking at the evidence as a whole you have to be satisfied of the guilt of each of the accused beyond reasonable doubt" (page 2, line 7-9).

[18] The direction about conspiracy stated:

"The starting point is this. You will have to decide if the Crown has proved that there was a conspiracy between the accused. That is something you may have to infer or deduce from what it is claimed that the accused said and from their actions ... Now it may be helpful to approach this question in stages. First of all decide if what is set out in the separate paragraphs of the charge and said to have been done in pursuance of the conspiracy has been proved. Secondly, look at any general evidence about the actions of the accused even though it is not directed specifically to any of these headings. Thirdly, decide if you can infer or deduce the existence of a conspiracy from all of that and fourthly, then look at the case against each accused separately. If a particular accused was not involved in the actings in any one heading or paragraph you would ignore that for the purpose of deciding whether or not that accused has been proved to have been involved in the conspiracy. But if you do find the conspiracy proved, a particular type of criminal liability arises. Normally you are held criminally responsible for your own actions alone only. But if you are involved in conspiracy you are responsible not just for what you have done yourself but for what your fellow conspirators have also done. So you could convict each accused of whatever has been proved to have happened in pursuance of conspiracy" (page 6, line 2 - page 7, line 2).

Referring to charge (1):

"The Crown case as set out in the first charge is that the two accused conspired with each other and no one else. If you find that it has not been proved that there was conspiracy involving both of the accused, then you would acquit both of the accused. You cannot convict only one accused. If conspiracy is proved you could convict each accused of all of the actions described in the individual headings which have been proved to have been carried out in pursuance of the conspiracy. If you find that all the allegations in the separate headings or paragraphs have been proved your verdict would be guilty as libelled. If you think that some parts have not been proved you may delete that part or those parts. Your verdict would then be guilty under deletion of the relevant part or parts" (page 18, line 23 - page 19, line 10).

[19] In the course of the charge, the trial judge having dealt separately with Martin Black, stated:

"Consider all the evidence the defence rely on and the submissions made by ... [the appellant's counsel]. ... If you believe Francis Doris in any parts of his comments in the interview with the police which points to innocence or any other evidence which you think exculpates or clears him then you must acquit him. And even if you do not believe such evidence but it leaves you with a reasonable doubt about the Crown case you should acquit him" (page 18, line 15 to 20).

[20] It is important to recognise that this is a case presented by the Advocate depute at trial clearly on the basis that charge (1) involved a conspiracy between two people and two people only. The two people were Martin Black and the appellant. The things which were narrated to have been done in pursuance of that conspiracy are set out in the charge and are stated to have been carried out by only two people, namely Martin Black and the appellant. The trial judge in his charge correctly focused the charge as being related only to Martin Black and the appellant. He stated that:

"The Crown case set out in the first charge is that the two accused conspired with each other and no one else. If you find that it has not been proved that there was a conspiracy involving both of the accused, then you would acquit both of the accused" (page 18, line 23 - page 19, line 2).

[21] We are satisfied that if the jury followed the directions of the trial judge, as we must assume they did, it would be impossible for the jury to conclude on examining the evidence relative to the appellant that he was guilty on the basis that there was some other conspiracy, not founded upon by the Crown, which involved Martin Black and others. The jury were properly directed in the passages to which we have referred to consider the evidence both in relation to conspiracy in relation to charge (1) and the appellant's part (if any). The thrust of the defence case was that the accused was not involved in the conspiracy alleged by the Crown. In the absence of formal incrimination it was not open to the defence to suggest that the truth of the matter was that any conspiracy to murder Kevin Martin was between Martin Black and Charles McKinley; and no such case was advanced. In these circumstances the trial judge was under no obligation to direct the jury as to how they should deal with any alternative conspiracy. We are satisfied that the trial judge directed the jury in appropriate terms about the defence case and that no more was required by way of directions to the jury in the circumstances of this case.

[22] In our view the criticisms of the trial judge's directions are not well-founded for the reasons we have given. We are unable to identify any misdirection amounting to a miscarriage of justice. We therefore refuse the appeal.