Pair convicted in Aberdeenshire ATM raids have sentences cut after challenging convictions
, as part of the group on one occasion, when there was no identification of the appellant being a member of the group on another occasion.
Following from the submissions on sufficiency, it was said that the trial judge had misdirected the jury as the evidence did not show that the ATM crimes were committed by the same group of four men.
Delivering the opinion of the court, the Lord Justice General said: “If an accused person is proved to have committed a particular offence and it is demonstrated that another identical offence has been committed, that may be sufficient to prove that the accused perpetrated both offences… Whether it is sufficient will depend upon the particular facts and circumstances; notably the extent of the identical features and their proximity in time and place.
“However, in a situation where there are near identical crimes committed in similar locations over a period of weeks, it may not be legitimate to conclude that they were committed by the same persons; albeit that they were perpetrated by a gang under the same leadership.
“In this case, assuming, as the Crown maintained, that Mr Vaughan was the director of operations, the question must be whether there was sufficient evidence for the jury to conclude that his cohorts were the same, when carrying out: first, the raid on 26 August; secondly, the successful crimes on 18 and 19 September; thirdly, the unsuccessful attempts and the golf centre break-in over a month later from 25 to 28 October; and fourthly, the final attempt (which did not involve Mr O’Brien) on 10 November.
“Although it may be legitimate to draw an inference, that those involved in a raid on one day were the same as those involved in a raid on the next day or two, it is far more difficult to infer involvement in events several weeks apart, without some evidence linking the accused to each block of crimes.”
The judges observed that Mr McHale was linked to charge 27 by virtue of his DNA being found on tape surrounding the wires used in the interrupted attempt in Bucksburn on 10 November and the circumstantial evidence was sufficient to link him to and prove guilt on charges 15, 22, 24, and 25.
“In order to bring home charges 2, 9 and 10, however, there would have to be something linking him to them, occurring, as they did, a month earlier,” Lord Carloway said, adding: “The very similar nature of the crimes was not sufficient for the jury to draw the inference that the same four persons, and in particular Mr McHale, were involved in the earlier incidents.”
In relation to Mr Shruyers, there was evidence to link him to the ATM raid gang “as a generality”, but it was not clear whether he was part of the initial group of four or not.
“In these circumstances,” the Lord Justice General said, “as with Mr McHale, there was insufficient evidence to link him to the earlier charges”.
He added: “As already observed, if there had been sufficient evidence to satisfy the jury that all the ATM incidents involved the same members of the same gang, they would have been entitled to hold that each appellant had been involved in them all. That is how the trial judge directed the jury. There was insufficient evidence to link the appellants to the earlier charges.”
The appellants’ claims that their trial was unfair and complaint regarding the admission of hearsay evidence were dismissed.
© Scottish Legal News Ltd 2021