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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
in
APPEAL AGAINST CONVICTION
by
(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.
2
1.
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.
2.
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.
3.
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.
4.
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
3
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
4
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.
5
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.
6
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.
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