Armed robber who claimed ‘miscarriage of justice’ over alleged misdirection loses appeal against conviction
A man found guilty of an armed robbery committed while wearing a Mexican wrestling mask who claimed he suffered a “miscarriage of justice” as a result of the advocate depute’s speech to the jury on the forensic evidence has had his appeal against conviction rejected.
Scott Fowler argued that the trial judge failed to properly direct the jury about forensic evidence of firearms residue and the role of an expert witness, but the Appeal Court of the High Court of Justiciary refused his appeal.
The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Turnbull, heard that the appellant and a co-accused Slessor Buchan were convicted at the High Court in Aberdeen of assaulting Colin Verrall at his flat in Fraserburgh while wearing masks, by pushing him to the ground, demanding drugs and money, pointing a shotgun at him and firing a shot into the ceiling, before robbing him of £118 and his mobile phone.
The appellant and his co-accused, who were also convicted of a related charge of having a loaded shotgun contrary to section 19(a) of the Firearms Act 1968, were sentenced to 10 years and seven years’ imprisonment respectively.
‘Evil Power Rangers’
The court was told that the complainer had received a phone call on 7 August 2018 from a woman named Lee-Ann Shaw, who said that she was coming to see him.
She later called at his flat, but after he opened his front door three people wearing Mexican wrestling masks - which Ms Shaw said looked like those of “evil Power Rangers” - pushed her aside and charged into his house, where the events libelled took place.
Ms Shaw, who pled guilty to her part in the robbery, told the court she had received a phone call from a man with a Liverpool accent who told her to go to the address in Fraserburgh on the pretext of wanting to buy drugs from Mr Verrall, which she had done before.
She was given a lift to the flat by the appellant – the co-accused and a woman were also in the car – and after the incident she was picked up in the same vehicle in which she had arrived, with the same occupants.
The court also heard evidence that a single particle of firearms residue was found on a hat belonging to the co-accused, with another particle found on his jacket, while two particles were found on the appellant’s jacket and some 17 particles found on Ms Shaw’s clothing
A forensic scientist explained that, where there was only a single particle, it was not “really safe” to come to any conclusion, because it could have got there in numerous different ways.
In addressing the jury, the advocate depute commented on the scientific evidence, by saying, in relation to the case against the appellant, and the finding of the residue, that: “… [w]hat assistance that provides in relation to the evidence is a matter for you. It is not a matter for … a forensic scientist… And you will have regard … to what the scientist said in relation to … the number of particles that were found here … but I suggest it’s for you to decide what that means … and whether it fits with the rest of the evidence taking you a particular direction towards identification”.
In relation to the appellant, the advocate depute said that, on the finding of the residue: “What to make of that is a matter for you … But the Crown brings you that together with all the other strands of evidence which I have … already outlined … The forensic findings … in relation to the clothing fits will all these other strands of evidence and confirms … that the identification of the culprits here is indeed the two accused”.
The fundamental complaint made by the appellant in the appeal related to the advocate depute’s speech to the jury.
It was submitted that the trial judge had failed to direct the jury sufficiently on the forensic evidence and the role of the expert.
The expert had not considered her findings in isolation, but in the context of the evidence, which had included Ms Shaw’s return from the locus to the appellant’s car.
The remarks of the advocate depute had been “inappropriate”, as the jury had been asked to engage in “speculation”, and the remarks had not been adequately dealt with by the trial judge.
The respondent replied that the presence of firearms residue on clothing belonging to the appellant was available to the Crown as one element in the circumstantial case, and that it was for the jury to consider whether or not, in the whole circumstances, the charge against the appellant had been established.
The criticisms of the advocate depute’s speech were “unwarranted”, as he had submitted correctly that the assistance which the forensic evidence provided in relation to the evidence as a whole was a matter for the jury and not for the expert - the expert did not usurp the fact-finding function of the jury.
He had correctly invited the jury to have regard to what the forensic scientist had said about the number of particles found, but correctly submitted that it was the jury to decide what that meant and whether it fitted with the rest of the evidence taking them in a particular direction towards identification.
‘No miscarriage of justice’
Refusing the appeal, the judges ruled that no miscarriage of justice had occurred.
Delivering the opinion of the court, the Lord Justice General said: “The remarks made by the advocate depute were entirely appropriate in the context of the Crown case. It was for the jury to decide what they made of the finding of one or two particles of firearms residue on the clothing of one or other, or both, of the two accused in the context of the other evidence in the case.
“The defence had had, and took, the opportunity of expressing their own viewpoint on that evidence to the jury. It was not correct to say that the jury were bound to accept what the expert had said about the significance of the residue, at least once all the other evidence was taken into consideration.
“The trial judge was correct in directing the jury that, whatever may be the position from a scientific viewpoint, the scientist was not considering the finding of residue in the context of the other potentially incriminating evidence.
“The context in which the residue had to be regarded was that it had been found not just on one accused but on both. These accused were, according to Ms Shaw, near the locus at the relevant time. They had driven her there so that she could participate in the robbery.
“The accused were also there when she returned to the car at the conclusion of the robbery. The complainer had identified both accused as having physical characteristics resembling the robbers.”
Lord Carloway added: “Apart from the remarkable coincidence that these characteristics demonstrated, the co-accused was linked to the robbery by his previous use of the Liverpool accent and his possession of the complainer’s phone. The appellant too was linked by his previous possession of the Mexican mask, of a similar design to that used in the robbery.
“In that state of the evidence, the significance of the finding of one or two particles of residue on the appellant’s clothing would be apparent. No miscarriage of justice can be seen to have occurred.”
© Scottish Legal News Ltd 2019