(1) John Docherty and (2) Don Templeton v. Her Majesty’s Advocate [2021] HCJAC 36

Note of appeal against conviction:- The appellants were convicted after trial at the high court of a charge of attempted murder in relation to a shooting incident on 31 October 2017 in Bridge of Weir. Both appellants appealed against their conviction on the ground that the trial judge erred in repelling a ‘no case to answer’ submission at the close of the Crown case it being contended there was insufficient evidence identifying the appellants as being the perpetrators of the shooting. In relation to the first appellant it was submitted that he had not been identified in the vehicle and the reference to “Don’s pal” was vague and did not allow an inference that it referred to the first appellant. On behalf of the second appellant it was submitted that the term "It's Don's pal" was not sufficient to be taken as referring to the first appellant, however, it was conceded that it was a reasonable inference that the second appellant was driving the vehicle throughout but there was insufficient evidence to convict him on an art and part basis with the shooter. Whilst there was evidence of the car speeding away from the locus that was only demonstrative of an awareness to depart the locus urgently rather than demonstrating either prior or spontaneous agreement of the use of a weapon. On behalf of the Crown it was submitted that the following features were present which supported an inference of a plan between the appellants:- (1) the remote nature of the location of the workshop up a track on farmland off a country road; (2) the departure of the car at high speed immediately after the shooting; and (3) the short period of time it was at the locus which was indicative of the visit not being for a legitimate purpose. A ground of appeal in relation to the second appellant in relation to a material misdirection relating to the application of concert was conceded by the Crown. Here the court refused the appeal in relation to the ground relating to the sufficiency of evidence. The court reiterated that the critical question is whether an inference of guilt is a reasonable one to draw from the evidence and that it is in the nature of circumstantial evidence that it may be capable of bearing more than one interpretation. If guilt is a reasonable inference then the matter should go to the jury to determine whether they consider that they should draw that inference having regard to the weight they think should be attributed to the various pieces of evidence taken together and whether they are capable of supporting an inference of guilt beyond reasonable doubt. In relation to the first appellant the court considered there was sufficient evidence to enable the jury to conclude that he was still in the car when it pulled off the road to the workshop, that he was the person identified as “Don’s Pal” and that he was the shooter. In relation to the second appellant the court considered there was sufficient evidence to enable the jury to conclude that he was the driver of the vehicle throughout the relevant period. As a consequence of the Crown concession in relation to the second appellant’s ground of appeal relating to the trial judge’s misdirection, the court appointed a further hearing to consider the effect of the misdirection.