Kevin Patrick O’Donnell & Darren Ross v HM Advocate

30th May 2014

Background

On 4th April 2013, the appellants Mr O’Donnell and Mr Ross were convicted before a jury in the sheriff court in Dundee of charge 1 on the indictment. This charge libelled that:

“on 22 or 23 November 2012 both of them broke into commercial premises in Dundee and stole a number of items including, in particular, a Mercedes C180 motor car and a BMW 325 convertible motor car registered number ND05 DWV.”

Additionally, Mr Ross and Mr O’Donnell were respectively convicted of charges 4 and 5. These libelled that:

““on 24 November in certain streets in Dundee the second appellant (Ross) drove a motor car registered number ND05 DWV dangerously in contravention of section 2 of the Road Traffic Act 1988.”

and

“on 23 November in various, different streets in Dundee the first appellant (O’Donnell) also contravened section 2 of the Road Traffic Act 1988 by driving a Mercedes C180 vehicle (no registration number given) dangerously.”

Mr Ross was also convicted of charge 2. This libelled that:

“on 23 November 2012 at a jewellers’ shop in Perth when acting along with others he did “behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did enter said shop with your head concealed by a hood and face masked while brandishing a weapon, namely a pry bar.”

Appeal

The appeal, presented on the appellants’ behalf, concerned the way the presiding sheriff charged the jury with respect to evidence in the case. The appeals of both men may be summarised as such:

“the appellants contend that the sheriff misdirected the jury by (i) placing undue emphasis on the evidence supportive of the prosecution case and omitting to give appropriate weight to the defence evidence; and (ii) by imparting to the jury his own views on the credibility or reliability of witnesses, in particular, the credibility or reliability of the appellants.”

These include instructing the jury that “the quality of the driving is shocking” and asking the jury “how on earth did his DNA get transferred to a mask found within the secure compound of this garage.”

These utterances were presented with many more similar examples. Collectively, the appeal alleged that they represent a systematic failing of the part of the sheriff with respect to both (i) and (ii).

Conclusion

As evidenced by the transcript, at numerous times throughout the trial the sheriff impresses his own views upon members of the jury. Additionally, at multiple times he failed with respect to his obligation to present matters in a fair and balanced way.

There was some discussion as to whether the failings of the sheriff affected individual charges or the trial as a whole. Eventually it was decided a piecemeal approach was not suitable and that the conviction stood or fell as a whole.

The appeal found the judge was culpable of misdirecting the jury in respect to both (i) and (ii) and as such the convictions fell.

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