Criminal Appeal Court upholds firearms convictions after rejecting ‘hearsay’ claim

Zak Bennett and Ian Moyes, who were each sentenced to eight years’ imprisonment, claimed that the trial judge “misdirected” the jury and that the judge “erred” in repelling a “no case to answer” submission, but High Court of Justiciary Appeal Court refused their appeals.

The Lord Justice General, Lord Carloway, sitting with Lord Glennie and Lord Turnbull heard that on 31 May 2019 the appellants along with their two co-accused Chloe Walker and Courtney McCreaddie were found guilty following a trial at the High Court in Glasgow of four charges, all relating to events on 7 July 2017 at addresses at Dimsdale Crescent, Wishaw, and Ryehill Road, Lumloch Road and Cortmalaw Gardens, all Glasgow.

The first charge was one of possession of a firearm, with intent to cause EG and JM, who lived in Ryehill Road, to believe that violence was to be used against them; contrary to section 16A of the Firearms Act 1968.

The second was a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, by behaving in a “threatening or abusive manner” at an address in Ryehill Road, pulling a window from its hinges, shouting and swearing at EG, brandishing a shotgun at her and demanding that her son, JM, leave the house. 

The third was a “breach of the peace” in Lumloch Road by repeatedly discharging a firearm. 

The fourth was again possession of a firearm, this with intent to cause AD, who lived at Cortmalaw Gardens, to believe that violence would be used against her; again contrary to section 16A of the 1968 Act. 

The court heard that Ms Walker had hired a black Mercedes car, which had been fitted with a tracking device, which showed that she had driven it from Moyes’s house at Dimsdale Crescent, Wishaw to the locus at Ryehill Road shortly before the events which took place there at about 3.00am. 

Evidence, obtained from the mobile phones of the appellant Bennett, Ms Walker and Ms McCreaddie, placed them in the car, along with a fourth person. 

When the car arrived at Ryehill Road, two persons got out, one of whom had a firearm, and the events libelled then took place. 

The two men then returned to the car, which left and made its way to Lumloch Road, where two men again got out and entered the back garden of an address at Cortmalaw Gardens, which was the home of AD and where the gun was discharged twice, before the car then returned to Dimsdale Crescent, Wishaw.

It was not disputed that there was sufficient evidence to identify the appellant Bennett as being in the appellant Moyes’s house, both before and after the incidents and in the car during its journey to and from the loci. 

At 19.33 on 6 July, the car had picked Mr Bennett up at his own house and taken him to Dimsdale Crescent.  Later, after the incidents, at 6.03, it dropped him back home.  Ms Walker texted Ms McCreaddie to that effect. 

Mr Bennett’s appeal concerned the judge’s directions about the import of certain WhatsApp messages in advance of the incidents.

One was from Ms McCreaddie to Ms Walker at 19.20 on 6 July and read “Can u pick that Zac up got Moysie?  The hot one who was asking for a hot pal !!!?  Drop them back here …..” and later, at 1.54 on 7 July, “If u drive he’ll give you a couple of hundred he said x”.

The evidence against the Moyes consisted, first, of four particles of firearms residue found on a pair of grey jogging bottoms, which were recovered from his house at Dimsdale Crescent on 27 July 2017 and on which his DNA was found, indicating that he had been the wearer of them at some point.

Evidence from CCTV images, in relation to Cortmalaw Gardens, showed a person wearing grey clothes and AD had said that one of the men who had got out of a black Mercedes car – which had been hired by Ms Walker and had a tracking device fitted – had been wearing a grey tracksuit. 

Secondly, there was a photograph on a phone, attributed to Ms Walker, timed at 15.29 on 6 July, depicting another phone, itself showing an image of a shotgun, similar to the one which was used in the incident, on the floor of a bedroom in the appellant Moyes’s house.

Thirdly, there was another photograph on Ms Walker’s phone, timed at 4.41am on 7 July, showing the Mr Moyes and Ms McCreaddie together. 

There was another image, dated 14 July, on a different phone, showing Ms Walker and Mr Bennett on a bed with the shotgun

The shotgun shown lying on a floor in Mr Moyes’s home was a pump action shotgun of Italian origin which, according to an expert witness who had viewed the CCTV images of the discharges, was capable of producing the flashes recorded. 

On behalf of the appellant Bennett it was submitted that the trial judge “misdirected” the jury in relation to the text messages. 

In a case involving concert, comments made, other than by a particular accused, may be admissible in the case against that accused in two situations: the first was where the concerted action was already ongoing and the accused was a party to that activity; and the second was where the comments themselves demonstrated participation in criminality.

It was argued that at the time of the WhatsApp exchanges between Mr Bennett’s co-accused, it had not been established that there was any “ongoing criminality” on the part of Mr Bennett – there was no evidence of concert on his part at the time.  

On behalf of the appellant Moyes it was submitted that the trial judge “erred” in repelling a submission of “no case to answer”. 

The case had been a wholly circumstantial one, and the evidence as a whole did not permit the required inference of guilt. 

Refusing the appeal, the court ruled that the trial’s judge’s directions were in fact “favourable” to Bennett, while the evidence against Moyes was “compelling”.

Delivering the opinion of the court, the Lord Justice General said: “Evidence, of Ms McCreaddie contacting Ms Walker prior to the incidents with a view to picking up the appellants and telling her that, if she were to drive then, she would be paid for it, is not hearsay. It is a fact which is relevant to the commission of the crime by all participants not long afterwards.

“It is part of the proof relative to the preparation and perpetration of the crime.  As such it is admissible against all of the accused in so far as it sheds light on their participation in concert in what occurred.  

“The prohibition against hearsay finds it true focus in relation to reports of what a person had said outwith the courtroom after the event, with which the prosecution or litigation is concerned, has occurred. 

“It does not apply to testimony concerning what was said by persons, especially ultimate alleged participants, prior to, or at the time of, the event where that is relevant to proof of the commission of the crime and its perpetrators. Evidence of ‘the whole thing that happened’, that is the res gestae, is admissible.

 “The trial judge’s directions were overly favourable to the appellant. There was no need for concert to have been proved in advance. It may be that it is the content of the WhatsApp messages themselves which ultimately proves the concert. On this basis the appeal in Mr Bennett’s case must be refused.”

Lord Carloway added: “The circumstantial case against the appellant Moyes was a compelling one. The car which took the perpetrators to and from the loci left from, and returned to, his address. Firearms residue was found on clothing in his house. 

“The clothing was linked to him by the DNA findings and, in relation to the tracksuit bottoms, linked also to the CCTV images and AD’s description of what one of the assailants had been wearing… The photograph of a shotgun, which was present in Mr Moyes’s house during the day prior to the incidents, completes the compelling narrative. 

“In these circumstances, there was undoubtedly a case to answer. His appeal against conviction is also refused.”