APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Reed Lord Marnoch	[2010] HCJAC 9 Appeal No: XC789/09 OPINION OF THE COURT delivered by LORD EASSIE in NOTE OF APPEAL by ANN GORMAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McConnachie, Q.C.; Capital Defence

Respondent: Cherry, Q.C., A.D.; Crown Agent

2 February 2011

[1] On 15 October 2009 at a sitting of the High Court in Glasgow the appellant, along with her sons Gary Gorman and Stephen Gorman, was found guilty of the attempted murder on 6 July 2002 of Sean Peter Hagen. The charge of which she and her sons were convicted libelled that on that date at Boyle Street and Fleming Avenue, Whitecrook, Clydebank they assaulted Sean Peter Hagen and,

"did pursue him, seize hold of him by the body, strike him on the head with a bat or similar instrument, knock him to the ground, throw a bottle containing petrol or other flammable liquid at him, ignite said petrol or flammable liquid and thus set fire to the clothing worn by said Sean Peter Hagen and to his person, seize him and threaten him with violence, all to his severe injury, permanent disfigurement and to the danger of his life and did attempt to murder him".

Gary Gorman and Stephen Gorman were also convicted of a charge of murder, committed on 6 November 2008, of Bernard Hagen, the father of Sean Peter Hagen.

[2] Two grounds of appeal are advanced. The first concerns the refusal by the trial judge to uphold a submission made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 at the close of the Crown case to the effect that there was no case to answer. The ground of appeal reads:

"The Learned Trial Judge erred in refusing the submission of no case to answer. There was insufficient evidence to allow the Jury to infer that the appellant had acted in concert with her co-accused. At its highest the evidence supported an inference that the appellant had entered into a common plan to throw a petrol bomb through the window of a house. After the vehicle she was driving stopped her co-accused got out and carried out a spontaneous attack of a different kind not within the common criminal purpose. Unless there was evidence to support an inference that she became part of a new common criminal purpose there was insufficient evidence to convict."

[3] The evidence at the trial disclosed that the attack on Sean Hagen which formed the subject of the charge against the appellant had been preceded by an incident earlier in the evening at Braes Avenue, Whitecrook. According to the evidence of Andrea Anderson, who at the time of the events was the girlfriend of the co-accused Gary Gorman, she and Gary Gorman went to Braes Avenue in search of further supplies of alcohol. There they encountered Sean Hagen and a Christopher White. Gary Gorman went up to Hagen and White and after words were exchanged Gary Gorman hit Christopher White and a fight ensued which attracted the presence of other people. A confrontation then took place during which something was said about Gary Gorman's father; but in the event Gary Gorman and Andrea Anderson walked away from the confrontation.

[4] The evidence of Andrea Anderson as to what happened thereafter formed an important part of the prosecution case against the appellant. In summary, Andrea Anderson deponed that from the incident in Braes Avenue she and Gary Gorman proceeded to the appellant's house. When they arrived, in addition to the appellant, Stephen Gorman was in the house. Gary Gorman told both the appellant and Stephen Gorman what had occurred in Braes Avenue, including relating the comments which had been made about Gary Gorman's father. The appellant became upset about this and, with the witness, went to retrieve her car which was parked a few streets away.

[5] The evidence given by Andrea Anderson respecting what happened after she and the appellant had retrieved the car and returned to the appellant's home is summarised by the trial judge in his report as follows:

"They then went back into the house and Gary, Stephen and the appellant were saying that they were going to give Christopher White a fright. In the kitchen, Gary and Stephen had a glass bottle into which they were pouring stuff and they then put toilet paper into it. The appellant was also in the kitchen when this was happening. She was going on about these people not getting away with it anymore. The bottle was to be thrown through Christopher White's window, to give him a fright. The witness, Gary, Stephen and the appellant were all present when that was said but she did not remember who said it. Then she, the appellant, Stephen and Gary went to the car. The appellant Gorman was driving and the witness was the front passenger. Stephen was behind her and Gary was behind the appellant. There was another person there. She professed not to know who that was but it turned out later in her evidence that it must have been someone by the name of Liam McEmmerson. She thought that Stephen had the bottle in his hand in the back. The car drove off and at one point she felt the brakes slamming and the back door was opened. Stephen got out first followed by Gary. She did not see the bottle at this time because it all happened so quickly and she said she did not see anybody in the street at that time. Once the car stopped she knew there was someone there because she heard Gary and Stephen in a fight with this person. She knew now that it was Sean Peter Hagen, who was wearing a Celtic top. She said that she went to get out of the car but the appellant stopped her. She still thought that Gary and Stephen were going to give Christopher White a fright by throwing the bottle through his window and thought that perhaps he lived just round the corner but she noticed that Sean Hagen was on fire. She said that Stephen and Gary had gone near to him and she started panicking and getting upset. She tried to get out of the car but the appellant pulled her back. She then started calling Gary and the appellant said that that was not his name. She heard Gary speaking in an Irish accent. She said that Gary and Stephen must have got hold of Sean Hagen. The next thing she saw was that Stephen had him on the ground. Gary must have been behind Stephen. She heard a bottle smash and Gary, in an Irish accent said 'Light the bastard". For some reason the appellant gave her a navy blue overall to put on and she looked back to see Sean Hagen on fire. He was screaming and rolling about and Gary and Stephen ran back towards the car. Gary then went back to Sean and got a hold of him somewhere saying 'You better no stick us in". Stephen and Gary got back into the car and it drove away. They then went into the appellant's house. The appellant told her and Gary to leave and she went to her own place in Drumchapel."

The trial judge further records:

"In cross examination for the appellant, she [Andrea Anderson] said that she had expected the bottle to be thrown through Christopher White's window to give him a fright. When the car stopped she did not see what was going on at first and when she saw flames it was a massive surprise and not what she was expecting. Once again a number of discrepancies in her various statements were put to her but I need not mention those for present purposes.

In re-examination, amongst other things, she said that the car had been driven for about 2 minutes when the brakes were slammed. She said that this must have been because they saw Sean Hagen."

[6] So far as pertinent to the first ground of appeal, the complainer in his evidence described standing on Fleming Avenue, near Boyle Street, some time after the Braes Avenue fight talking to a Craig Houston when a car "screeched up". The complainer thought that this was something to do with the earlier fight and told Houston to run. The back doors of the car opened and a couple of people got out. The complainer then ran up Boyle Street and, put shortly, he was pursued, assaulted and set alight. He heard the voice of the appellant screaming "fucking hurry up". The complainer was conscious of the car in question twice circulating round the area in which the assault had taken place.

[7] Counsel for the appellant largely renewed to us the submission which had been advanced to the trial judge. In summary, while there was evidence of antecedent concert between the appellant and her sons to drive to Christopher White's house and throw a petrol bomb through a window of the house, the pursuit and attack on Sean Hagen by the sons was not part of that plan. There was no evidence of any discussion, in the car or elsewhere, of assaulting anyone in the street. At best the evidence was of spontaneous concert between the two sons at Boyle Avenue. For spontaneous concert to apply to the appellant, the jury would require to be satisfied that Sean Hagen had been seen; that the sighting of Sean Hagen was the reason for the appellant bringing the car to a sudden halt; and that the appellant contemplated her sons getting out of the car to assault Sean Hagen and in particular to use the bottle of flammable liquid to set fire to him. The evidence of Andrea Anderson was not consistent with that. She was surprised when the car stopped suddenly but she believed that it had stopped as part of the original plan to throw a petrol bomb into the house of Christopher White.

[8] While, as the trial judge observes, a possible interpretation of the evidence is that there was spontaneous concert between the sons alone on or after their leaving the car, the issue for the trial judge at the stage of a no case to answer submission was, of course, whether taking the evidence at its highest for the prosecution, another interpretation would be open to the jury. In our view an obvious starting point in consideration of the Crown case is the evidence that the expedition upon which the appellant and her sons had set out had for its purpose an attack with a petrol bomb on the house of Christopher White. There is nothing in the evidence to suggest that the building would be unoccupied, with no-one present, or that no-one other than Christopher White would be present. Accordingly the reasonably foreseeable consequences of executing the antecedent plan were not necessarily directed only at Christopher White. Further there is evidence of the appellant having gone on about "these people not getting away with it anymore" which might allow the inference that the plan conceived in the Gorman house was not so confined but was truly part of a factional dispute, involving others in the opposing faction. As the Advocate depute submitted, concert need not be victim specific (cf Black v Sneddon 2006 SCCR 103). Sean Hagen had been with Christopher White at the time of the Braes Avenue incident and the evidence allowed at least the inference that he was thus associated with Christopher White.

[9] Given that the common purpose of the antecedent concert to which the appellant was a party might thus be seen as wider than directed against Christopher White alone, it would, in our view, be open to the jury to treat the attack on Sean Hagen as a spontaneous development within that same overall plan, particularly in the light of the evidence of the appellant's actings after she and her sons had set off from their home. It may readily be inferred that the reason for the appellant's bringing her car to a sudden halt at the junction of Fleming Avenue and Boyle Street was that she had seen, or had had her attention directed to the presence of Sean Hagen. It may be noted that, with hindsight, Andrea Anderson gave evidence that she concluded that that was the reason for the car stopping suddenly. In light of other circumstances, including in particular the reason for the appellant and her sons having set off in the car with the latter in possession of a petrol bomb, the jury might reasonably infer that the purpose of the appellant's thus stopping the car suddenly was to do violence to Sean Hagen. The complainer clearly apprehended the doing of violence to him as the reason for the car "screeching" to a halt. As the trial judge observes in his report, Andrea Anderson's evidence that the appellant pulled her back when she tried to get out of the car could be open to the interpretation that the appellant was trying to prevent her going to the aid of Sean Hagen; and evidence that the appellant told her that Gary's name was not "Gary" could be indicative of an attempt, while the incident was still going on, to cover his involvement. Similarly, the words said to have been used towards the end of the incident, before the sons returned to the car, were capable of inferring participation by the appellant in what was happening. Further, the evidence did not disclose any effort by the appellant to dissociate herself from what happened. There was, on the contrary, evidence from the complainer of the car having circled twice around the area of ground on which he was attacked.

[10] In these circumstances, we have come to the conclusion that the trial judge was not in error in rejecting the submission of no case to answer and in allowing the case against the appellant to be considered by the jury.

[11] We would add that in the course of his submission, counsel for the appellant canvassed an alternative submission to the effect that even if there were sufficient evidence of the appellant's participation in a spontaneous assault independent of the antecedent concerted plan, there was no evidence of spontaneous concert for attempted murder. That contention did not, and indeed could not, form part of the no case to answer submission; nor is it encompassed in the grounds of appeal. However in light of the features of the antecedent concert which we have already discussed and the appellant's knowledge of the possession by one of the male passengers in the car of the petrol bomb and the common intention that it should be used, it cannot, in our view be said that the possibility of its being used in the course of an assault on Sean Hagen was not reasonably foreseeable to the appellant, who ex hypothesi was involved art and part in that assault. The evidence of her shouting to the sons to hurry up suggests that she was not surprised by what had taken place.

[12] In these circumstances we have reached the conclusion that the first ground of appeal cannot be upheld.

[13] The second ground of appeal is concerned with the identification of the appellant by means of the complainer's evidence of recognising her voice. The ground of appeal reads:

"The verdict was one which no reasonable jury properly directed could reach. In order to convict the appellant the jury required to believe and rely upon the evidence of Sean Hagen. His evidence was wholly lacking in credibility and reliability. The jury required to believe that having been knocked unconscious and then coming to and finding himself on fire and whilst screaming in pain he was able to recognise the voice of the appellant from a distance of 150 yards when she shouted six words. Such evidence was totally devoid of credibility and reliability and no reasonable jury could convict on the basis of that evidence."

[14] In advancing the contention that no reasonable jury could accept the complainer's evidence on this matter, counsel for the appellant submitted first that Sean Hagen's evidence of having been pursued for a distance which the witness estimated at 150 yards, rendered unconscious for a time and set alight, made it inherently improbable that he could have heard and recognised the appellant's voice. Secondly, counsel invoked the fact - brought out in evidence - that when interviewed by the police in July 2002 Sean Hagen maintained that he did not know the identity of the persons who had assaulted him and set him alight. On 6 November 2008, following his being advised that day by the police of his father's death, Hagen gave a statement to the police in which he referred to there being bad feeling between his family and the Gorman family which went back to the assault on him in 2002 when he was set on fire. The statement given on 6 November continued - "it was said to be Gary Gorman. I never saw who did it. I couldn't identify who did it so nobody got the jail for it." (transcript of evidence 1 October 2009, p. 151). Only five days later, having been told that Gary Gorman was considered to have been responsible for the murder of Mr Hagen senior, did Sean Hagen give a statement to the police in which he blamed the Gormans and identified the appellant as being one of those responsible for the attack in 2002. Counsel submitted that in light of that dramatic change of position, other discrepancies between detail noted in his 2008 statement and his evidence, and the inherent improbability of his being able to make the crucial identification of the appellant's voice, the evidence of the complainer had the air of concoction and did not reach the base-line of quality which would enable a reasonable jury to accept it.

[15] In considering this submission it is relevant to note - as the Advocate depute pointed out and as counsel accepted - that in his evidence Sean Hagen offered some explanation of his change of position. He explained that in 2002 he did not wish to be seen as a "grass". He had matured since then. He indicated that on just receiving, in the police station, news of his father's death he was not in the right frame of mind to tell the police the truth about the 2002 matter. As the Advocate depute pointed out, it is not uncommon for a witness to change position and not uncommon for a witness to refrain from giving information to the police for fear of being treated in his community as a "grass". The effect of a prior inconsistent statement on the credibility and reliability of a witness' evidence is, in our view, essentially a matter for the jury's consideration, particularly in the light of any explanation offered.

[16] As regards the other strand of counsel's submission in respect of this ground of appeal, it has to be noted that Sean Hagen explained in his evidence that the appellant's voice was a distinctive one, with which he was familiar, having in earlier years "run about" with Stephen Gorman and grown up with the Gormans and been frequently in their house. Moreover, as the Advocate depute pointed out, support for Sean Hagen's evidence was to be found in the evidence of the witness Nicky McLean who, though unable to recollect events at the time of the trial in 2009, had told the police in 2002 that after she had seen the flames (from the complainer's having been set alight) she heard a female voice shouting "come on". Further, as the Advocate depute also stressed, the evidence of Andrea Anderson clearly and firmly placed the appellant as the driver of the car.

[17] In all these circumstances we consider that it cannot be said that no reasonable jury could ever accept the identification evidence given by Sean Hagen. In our view, a jury could, without acting irrationally, accept Hagen's explanation for his position prior to November 2008 and his explanation of why it changed thereafter. The jury could similarly also accept the substance of his evidence at the trial. We accordingly conclude that the second ground of appeal is also unsound.

It follows therefore that this appeal must be refused.