Man who assaulted and robbed beggar loses appeal against conviction
A man found guilty of assaulting and robbing a homeless person who claimed that the sheriff erred in repelling a “no case to answer” submission and that the sheriff “misdirected” the jury has failed in an appeal against conviction.
The Criminal Appeal Court refused the appeal after ruling that the sheriff’s directions to the jury were “correct”.
The Lord Justice General, Lord Carloway, sitting with Lady Paton and Lord Drummond Young, heard that in June 2015 at Dundee Sheriff Court the appellant David Blackwood was found guilty of a charge which libelled that he and a co-accused Colleen McPhee assaulted David Leighton by restraining him, repeatedly punching and kicking him on the head and body, before searching inside a sleeping bag and robbing him of a rucksack and a container of money.
The evidence consisted of two police witnesses speaking to CCTV images, which showed that the appellant and his co-accused were with a group of people walking in the city’s Nethergate at about 10pm on 14 March 2015 when they approached the complainer, who was a beggar standing next to his sleeping bag and a cup.
The court was told that they seized hold of him and punched him on the head and body.
Ms McPhee then searched inside the sleeping bag, while the appellant took a step back and kicked the complainer.
The appellant and the co-accused walked away, but she went back and spoke to the complainer and there appeared to be an argument.
Ms McPhee and then went back to the complainer’s sleeping bag, rucksack and cup and she picked up the cup and the rucksack and threw their contents onto the road.
The appellant and some other people in the group picked up the former contents of the cup and walked off.
The sheriff directed the jury that they required to return separate verdicts against each of the two accused.
She gave standard directions on concert, using the examples of pre-planned and spontaneous events and explained that the Crown case was that both accused had robbed the complainer with violence; that being the “common criminal purpose”.
The sheriff asked the jury to proceed in three stages: First, they were to decide what evidence there was against each accused; secondly, if there was evidence to implicate them, to decide if there was a common criminal purpose; and, finally, if there was one, to decide whether each accused was party to that purpose and to what extent.
The sheriff having also explained the difference between assault and robbery, the jury returned with a verdict in relation to the appellant of “for assault, guilty” and in respect of Ms McPhee, “on assault, guilty”.
There was then some confusion as to whether the verdicts correctly reflected their deliberations and the sheriff asked the jury to retire to consider the correct verdict.
This time, when they returned, the verdict in respect of the appellant was “guilty of assault and theft”, but the sheriff said that that option was not open to them.
The options were, first, assault and robbery; secondly, assault; or, thirdly, theft. Assault and theft was not an option. It was either assault and robbery, or assault on its own, or theft on its own.
Once more the jury were asked to retire and, on returning, they gave verdicts of “guilty” in respect of both the appellant and the co-accused.
The first ground of appeal was that the sheriff had erred in repelling a submission of no case to answer in respect of robbery.
It was accepted that there was sufficient evidence of theft and of assault, but it was argued that the incident had to be approached in “three phases”: first, the assault; secondly, the robbery by Ms McPhee; and thirdly, the recovery of the money by the appellant.
The jury had not been entitled to infer that the appellant had assaulted the complainer with the intention of robbing him, it was submitted.
The second ground of appeal was that, having returned a verdict of guilty to assault and theft, the jury had been “incorrectly directed” that that had not been open to them.
It was argued that the jury could have concluded that the appellant had assaulted the complainer, had not robbed him, but had thereafter stolen the items at the conclusion of the incident.
Delivering the opinion of the court, the Lord Justice General said: “The appellant and Ms McPhee were both shown assaulting the complainer at the same time. Ms McPhee was seen searching his sleeping bag during the course of this joint assault. Both walked away before both going back to where the complainer’s possessions were. Ms McPhee picked up the cup and rucksack. The appellant subsequently removed some of the thrown items from the road.
“In these circumstances, it was open to the jury to hold that the assault was linked with the search and removal of the items. They were entitled to consider that the appellant had been engaged in a common criminal purpose with Ms McPhee to achieve that removal.
“The sheriff was correct to repel the submission relative to the robbery. She was entitled to approach the CCTV images, and the libel, as involving a single incident of violence and removal of property.
“In relation to the verdicts, the sheriff approached this matter correctly as viewing the event, as it was libelled, as a single episode. That meant that there were only the three guilty verdicts open on what was one charge: assault only; assault and robbery; and theft only. In these circumstances, the sheriff’s directions were correct.”
© Scottish Legal News Ltd 2021