Aberdeenshire man who participated in multiple robberies whilst on bail loses appeal against conviction

Brandon Douglas was convicted on two charges; one of assault and robbery alongside his co-accused Martin Gemmell, and one of attempted murder and robbery alongside Mr Gemmel and a third co-accused, Brandon Wilson. His cumulative sentence for these offences was 10 years and 3 months’ detention.

The appeal was heard in the Appeal Court of the High Court of Justiciary by Lord Brodie, Lord Malcolm, and Lord Turnbull.

Thought he would die

The appeal related only to the second of the charges he was convicted of, namely that he, alongside Gemmell and Wilson, entered the home of a man in Sandhaven, a village near Fraserburgh, and threatened him with weapons before assaulting him to his permanent disfigurement and robbing him of several electronic goods. Both of the incidents described in the charges was said to have taken place on the same day.

Following the attack, the complainer in the second charge spent several days in Aberdeen Royal Infirmary being treated for six broken ribs, one of which had punctured his lung, and other injuries. His evidence was that at the time the offence took place he thought he was going to die. He also stated that, nearer the end of the incident, he thought he heard a fourth male speaking to the other three shortly before their departure.

A submission was made at trial that there was insufficient evidence in law to convict the appellant of this charge, which was rejected by the trial judge. On appeal, the appellant argued that there was insufficient evidence that he was an active participant in the concerted attack on the complainer, and the trial judge erred in rejecting this submission.

There was evidence of the appellant’s association with both co-accused, and of his being in the vehicle that it could be inferred was used to travel to and from the complainer’s home. He was identified as coming out of the car at a petrol station in Fraserburgh. The car had been seized and the complainer’s DNA had been found inside it.

In repelling the submission of no case to answer, the trial judge accepted that Scots law did not provide for the acceptance of similar fact evidence. However, he went on to consider that some of the evidence relating to the first charge, in particular evidence that the appellant and Gemmell were travelling by car earlier the same day looking for drugs and money from known drug dealers living in the area whilst armed with weapons, was relevant to the second.

Putting this evidence together with the evidence from witnesses for the second charge, the trial judge said it was a reasonable inference that the appellant was an active participant in the second charge, as opposed to an innocent bystander.

The appellant submitted that, absent speculation, there was no evidence of his active involvement in the charge. In particular, the complainer’s evidence was that he was attacked by three men but four were present. The evidence relating to the first charge did not make it more likely that he was involved in the second.

The appellant also submitted that, once the evidence from the first charge was disregarded there was no evidence that he was armed with a weapon. There were also significant differences in how the two attacks were carried out, as the first charge involved careful planning between two men whilst the second involved a frenzied attack by three.

A concerted attack

The opinion of the court was delivered by Lord Brodie. He noted that it was conceded by the appellant that where there was a pre-agreed plan to assault, his mere presence would be enough to entitle a jury to convict.

On whether the appellant was in the house, he said: “Counsel for the appellant accepted that there was evidence to establish that the appellant had been ‘at or about’ the locus. In our opinion the evidence went somewhat further than that, allowing the inference to be drawn that the appellant had entered the complainer’s house with the other three males.”

On whether there was agreement in this case, he said: “As far as the question of pre-agreement among the three males and the fourth male is concerned, we accept the Crown submission that the jury would be entitled to take the view that all the males who approached the house were part of a concerted attack. The assault and robbery were clearly planned by the four males. They drove together to the complainer’s house. They all immediately got out of the car and ran together to the house. They were all in dark clothing and were wearing balaclavas. At least some of them had weapons.”

He continued: “The complainer’s evidence was of being immediately assaulted and subjected to demands for drugs and money. We would see the inference that the four males had formed an agreement to assault and rob the complainer and that, as one of the four males, the appellant was party to that agreement, as well-nigh irresistible.”

On the use of evidence from the first charge by the trial judge, he said: “We would see it as self-evident that it was relevant to the determination of all these issues that earlier that day the appellant was travelling by car in the Aberdeenshire area with Gemmell; that he was armed with a knife; and that he had an intention to assault and rob drug suppliers. “

He continued: “Apart from anything else, it would be to strain the jury’s credulity to suggest that, given his activities in the morning which were the subject of [the first] charge, the appellant’s admitted presence at the locus of [the second] charge in the evening was as an innocent bystander. It is artificial to compartmentalise, as it appeared counsel for the appellant was seeking to do, the evidence of what the appellant was alleged to have done earlier in the day of 21 November 2018 as relating exclusively to [the first] charge, and the evidence of what the appellant was alleged to have done later in the day as relating exclusively to [the second] charge.”

For these reasons, the appeal was refused.