Web Blue HCJ


[2017] HCJAC 51

HCA/2016/206/XC and HCA/2016/211/XC

Lord Justice General

Lord Menzies

Lord Malcolm











Appellant (Green): McConnachie QC, Findlater; Faculty Appeals Unit (for Bridge Litigation, Glasgow)

Appellant (D’Ambrosio): M Macara QC (sol adv); Paterson Bell (for Beltrami & Co, Glasgow)

Respondent: J Keegan QC (sol adv) AD; the Crown Agent


20 June 2017

[1]        On 17 March 2016, at the High Court in Edinburgh, the appellants were convicted of a charge which libelled that:

“on 25 April 2014 at West Philipstoun Steadings ... you ... and others unknown did assault [RB] ... and did repeatedly strike him on the head and body with a metal bar or similar instrument, compel him to enter a motor vehicle, place adhesive tape around his legs and wrists, place a hood over his head, secure said hood over his face with adhesive tape, repeatedly strike him on the head and body, pour a noxious liquid on him, and did rob him of his wallet and contents, a mobile telephone, a quantity of documentation and car keys, and you did abduct him, convey him against his will through various streets in West Lothian to a location within West Lothian where, with the intention of menacing him and placing him in a state of fear and apprehension of physical injury to himself, his family and employees, you did threaten him with violence if he did not pay money to ... Steven Green within 7 days, and you did thus attempt to extort money from ... [RB]”.


On 13 April 2016, the appellants were each sentenced to 7 years imprisonment. 

[2]        In the case of the first appellant, the appeal concerns the accuracy of the trial judge’s narration of the evidence to the jury and the balance of his charge.  In relation to the second appellant, the issues are sufficiency of evidence and, again, the balance of the charge.


The evidence
[3]        The first appellant ran a business known as Pentland Capital from West Philipstoun Steadings in West Lothian.  The second appellant was a director of a security and surveillance business, namely Glencairn Risk Solutions Ltd, in which the first appellant also had an interest.  This too was based at the Steadings. 

[4]        In November 2013, the complainer was in the process of buying a lending company called the Graf Mortgage Corporation from the first appellant.  The purchase price was to be £800,000.  If this was not paid within a specified period (which had long since passed) the shares in the company were to be returned.  By 23 April 2014, the purchase price had not been paid.  The complainer went to the Isle of Man to secure funding.  On the evening of 23 April (Wednesday), according to the evidence of the second appellant’s wife, Linda D’Ambrosio, the first appellant, along with a former co-accused, namely GS, met the second appellant at the second appellant’s house.  After that evening, Mrs D’Ambrosio did not see her husband until 6 May. 

[5]        On the morning of 24 April (Thursday) or 25 April (Friday), the first appellant contacted the complainer and arranged to meet him at the Hopetoun House garden centre just before 9.00am on the Friday.  There was evidence of phonecalls between the two appellants at 8.43 and 9.03am.  Thereafter, the principal phones of both the second appellant and the co-accused GS were switched off until 12.30am.  Prior to 8.00am, a white Fiat Doblo van, registration number FD07 VHH, was captured by CCTV on the A8 going southbound, then northbound.  This van was registered to Glencairn Risk Solutions and specifically the second appellant.  In due course, the second appellant was to admit being in this white Fiat Doblo during the course of the morning.  Both appellants gave evidence that the second appellant had met the first appellant at the garden centre at about 9.00am, although they described the meeting as intended to allow the second appellant to collect £200 from the first appellant.  Glencairn Risk Solutions were the registered keeper of another Fiat Doblo, registration number FH07 VLY.  The van captured by the CCTV was not seen after 25 April.  The same applied to its registration documents.  The second appellant said that it had been sold for spare parts on 29 April.

[6]        The first appellant duly met RB at the garden centre.  Because the café was not due to open until 10.00am, the first appellant invited the complainer back to his office at the Steadings.  There was a discussion, lasting 15 or 20 minutes, between the two in the office.  The fact that this occurred was spoken to by two accounts managers at Pentland Capital.  The complainer was scheduled to go to a meeting at the Sheraton Hotel, Edinburgh at 10.30.  He never arrived.  The first appellant was due to meet his accountant at the Dakota Hotel, Coatbridge at about 10.00am.  Notwithstanding the timing of that meeting, he delayed leaving the Steadings for about 15 minutes after the complainer had left in order to discuss matters, which one of the managers described as being of no particular importance. 

[7]        More or less as soon as the complainer left the office, he was attacked by three men, who had been surrounding a Fiat Doblo white van.  The attack was witnessed by two bystanders, who noted the registration number of the van as AJ57 WVD.  This transpired to be the front plate of a Ford Mondeo, which had been stolen from it sometime after 21 April.  The complainer was dragged into the van and assaulted in terms of the libel.  During the course of the attack the complainer was told that he had a week to get the money and that his attackers knew where he lived and the address of his “girl in Manchester”.  This was DS, an employee of the complainer, who lived in Manchester and was known to the first appellant.  The complainer managed to kick one of his assailants on the face while in the van.  In due course the complainer was released.  He went home and then to his doctor’s surgery in Edinburgh.  The police were called.  Initially the complainer said he had been mugged before, soon after, giving the account which was to feature at the trial. 

[8]        When the police called on the first appellant on 26 April, he was described as sweating and shaking.  He refused to give a statement or to allow the police access to his mobile phone.  He did show them a text exchange between himself and one CM, in which the first appellant said that he was supposed to have been given £600,000 on the day from the complainer, but this had not happened.

[9]        The appellants both gave evidence.  Although they admitted, as already noted, having met each other before the incident and later meeting up at some time after 12.00 at Chapelhall, both denied any involvement in the attack.  Each had a special defence of alibi.  The first appellant claimed to have been in his office at the material time (which was not disputed).  The second appellant said that he had been driving the van elsewhere.  He had not lodged an alibi prior to the trial.  The trial judge intervened when he started to give evidence about where he had been at the material time, which he said was near Uphall and then Chapelhall.  This explanation seemed to have come as a surprise to the second appellant’s counsel.  The jury were asked to retire while a special defence was drafted and subsequently lodged late.


The judge’s charge
[10]      The trial judge directed the jury that, although they required to accept and apply his directions on law, they alone were responsible for deciding which facts had been proved on the basis of evidence which they accepted.  The Crown had led evidence about the circumstances which they maintained linked each appellant to the crime.  The defence, on the other hand, maintained that the evidence had not provided such a link.  The judge stated that he intended to mention the evidence as briefly as he could, and specifically that his doing so was solely for the purpose of giving the jury legal directions.  It was not any part of his function to express a view or to suggest that the jury should take any such view.  It was the jury’s recollection of the evidence which counted, not his or that of counsel.  If they believed any piece of evidence which cleared one of the appellants, then he could not be convicted, even if that evidence stood alone.  If any piece of evidence provided a reasonable doubt about the guilt of the accused, then they would require to acquit. 

[11]      Having provided the jury with a number of directions on the law, the trial judge turned, at page 39 of what was a 55 page charge, to look at the cases against each appellant.  He reminded the jury, at the start of this passage, that it was their recollection of the evidence which counted.  In relation to the first appellant, he said that the Crown case was that the first appellant was the instigator.  The Crown did not suggest that he had actually been physically involved in the attack.  There was the background evidence about the purchase of the Graf Mortgage Corporation.  The judge stated that the first appellant had said “more than once” that the complainer did not owe him £800,000.  The complainer had an option either to pay that sum or to return the shares.  That was, the judge said, correct “in a sense” because it is what the agreement had said.  However, the deadline for payment or return of the shares had passed, although it appeared that the parties were still negotiating.  What mattered was that the first appellant was entitled to have the money paid, or to have his shares back, and neither had happened by 25 April.  Even on the basis of the first appellant’s evidence that he was continuing negotiations, these were in the hope that he would be paid the £800,000. 

[12]      The trial judge said that the jury had the evidence of the meeting of the appellants and GS at the second appellant’s house on what was: “according to Mrs D’Ambrosio, Wednesday (sic) 25 April and, according to [the first appellant], I think Monday 23 (sic) April”.  Although there was no evidence of what had been said at the meeting, it was “part of the circumstantial case that the three of them were together on the Wednesday, or possibly the Monday, before the attack on the Friday”.  There was then the meeting of the first appellant and the complainer on the morning of 25 April.  The judge told the jury that they would be entitled to take the view that, at that stage, only the first appellant would have known that the complainer would be at the Steadings.  There was no prior arrangement to go to the Steadings until the first appellant had arrived at the garden centre.  The Crown had described these events as involving the first appellant luring the complainer to the scene of the assault.

[13]      The trial judge referred to the complainer leaving on his own and the first appellant staying behind in the office, even though he had an appointment at the Dakota.  He did not leave until the white van had left the car park with the complainer in it.  The Crown mentioned that the first appellant had not returned to his office.  There was evidence of the false number plate and the existence of the white Fiat Doblo vans registered to Glencairn Risk Solutions, of which both appellants were directors.  One had remained in the car park and the Crown alleged that it was the other one which was used in the attack.  It was not seen after that day.  The second appellant had said that the van had been sold on 29 April, but that had not been recorded with the DVLA.  The Crown invited the jury to hold that the attack was a “targeted hit”.  If the jury were satisfied that the complainer was the intended victim, and were satisfied about what had been said to him in the van, the jury would be “well entitled to hold” that it was a targeted attack.  If it was, then the attackers must have known from some source that the complainer was likely to be in the car park at the material time.  The Crown invited the jury to draw the inference that the only possible source was the first appellant.  The Crown had founded on the evidence of the threat to DS in Manchester.  The first appellant knew her and her connection to that city. 

[14]      The trial judge referred to the Crown’s reliance on the telephone contact between the appellants, which had been set out in production 50, of which the jury had copies.  The judge said that the Crown relied on the phones of both appellants not being “in contact with any cell site during ... the material period, ... and for some time afterwards”.  He mentioned the appellant’s physical appearance when the police went to his house, but reminded the jury of the reason which the first appellant had given for this.  There were also the text messages, which had been sent by the first appellant explaining his knowledge of what had occurred. 

[15]      The trial judge turned to the first appellant’s own position as set out in his evidence.  The alibi had been accepted by the Crown.  The appellant had been “at pains” to say that he was not owed £800,000.  His position “put shortly” was that he was not in any way involved in the attack.  If the jury believed that, or it gave rise to a reasonable doubt, they would require to acquit.

[16]      The Crown case against the second appellant was that he had actually participated in the attack.  The Crown had maintained that the van was the white Fiat Doblo, FD07 VHH, which had been registered to Glencairn Risk Solutions, with the second appellant’s name mentioned specifically on the registration document.  The Crown had relied on the fact that the van had disappeared after the attack.  The trial judge reminded the jury that the second appellant had said that it had been sold on the following Tuesday, although there was nothing to indicate such a sale in the registration materials.  The Crown had relied on the second appellant’s business connection with the first appellant in relation to the movements of the van, as shown on the CCTV images.  They relied on the telephone evidence, which the judge had already mentioned, of contact between the appellants and the fact that the phones were not in contact with cell sites during the relevant period.  The Crown founded on the fact that the second appellant had not been seen after the day of the attack until 6 May.

[17]      The trial judge dealt with the second appellant’s case (at page 49), stating, first, that he was a man of good character.  His position was that set out in his testimony and his alibi.  The second appellant accepted that he had been driving the van, FD07 VHH, on that day, but maintained that he had not been in the car park at the time and had not been one of the attackers.  Once more, the judge said that, if his evidence was accepted by them, or it gave rise to any reasonable doubt, the jury would require to acquit. 

[18]      The trial judge summarised the position as follows:

“... what it comes to is this, in relation to each accused, if, having considered the whole evidence against an accused, you have a reasonable doubt about his guilt, you would require to acquit him.  On the other hand if, having considered the whole evidence, you are satisfied beyond reasonable doubt of his guilt, it would be your duty to convict him to the extent that his guilt has been proved”.


[19]      After the jury had retired to consider their verdicts, a matter was raised by counsel for the first appellant.  He began his submissions by stating that the trial judge had charged the jury in a manner which was scrupulously fair.  He then went on “however” to wonder if the judge would consider:

“In the interests of balancing, bringing the ladies and gentlemen back, to set out specifically that the case for the first named [appellant] mentioned the absence of text messages from [the complainer] confirming that there was to be a meeting at the Hopetoun Garden Centre”.


The judge said that counsel had already made that point in his speech.  He had told the jury to have regard to all the points which had been made in the speeches of counsel.  Having accepted that, counsel said that, having enumerated aspects of the Crown case, the judge should do so in respect of the defence case.  The judge declined to give the directions requested.


First appellant
[20]      The first appellant’s grounds of appeal were, that: first, the trial judge had misrepresented the evidence in his charge; and, secondly, the charge had not been impartial.  These two strands were interlinked and presented in a cumulative submission.  Under reference to Snowden v HM Advocate 2014 SCCR 663 (at paras 50-53) and Beck v HM Advocate 2013 JC 232 (at para 40), it was maintained that the overall tenor of the charge was unbalanced in favour of the Crown.  In relation to the evidence, the initial focus was the judge’s remark that there was “in a sense” a debt owed to the appellant by the complainer.  The complainer had accepted that at the material time there had been no debt.  The first appellant had given evidence to the same effect.  There was no evidence to the contrary.  Accordingly, the judge had trespassed upon the jury’s function of assessing the evidence in suggesting the contrary. 

[21]      The trial judge had made a number of errors of fact.  The first was about the date when the appellants and GS had met at the second appellant’s house.  The judge had said that the first appellant had remained “for some time” in his office.  No indication had been given that he had been speaking to employees about work during this time.  The judge had commented about the first appellant not returning to his office, despite him being told about scenes of crime tape in the car park, but there was no mention of the absence of any evidence that he had been due to return.  The judge had referred to the evidence of the second appellant, that the Fiat Doblo had been sold on 29 April, yet this had not been registered with the DVLA.  However, he had not said that such registration was a matter for the new purchaser.  The reference to DS being known to the first appellant was said without reference to other people being aware of her and her link to Manchester.  Most important, the judge had said that the main phones of both appellants were not in contact with any cell site during the material period.  That was not correct.  The first appellant’s phone had been on at the time; it was the second appellant and the former co-accused’s phones which had been switched off.  The Crown case had been summarised by the judge over several pages of text, whereas that of the defence was contained within 16 lines.  This indicated a lack of impartiality.  Attention was directed to the request from defence counsel after the conclusion of the charge for the judge to expand upon the defence case; making reference to the explanations proffered in relation to each of the circumstances said to have been relied upon by the Crown.


Second appellant
[22]      It was submitted that there was insufficient circumstantial evidence against the second appellant.  The evidence lacked the aptitude and coherence required (Hume: Commentaries (4th ed) ii.384; Megrahi v HM Advocate 2002 JC 99 at para 34; Fox v HM Advocate 1998 JC 94).  The Crown required to place the second appellant at the locus at the time of the assault.  They had to demonstrate that the van was associated with Glencairn Risk Solutions and that the appellant had been in it at the time of the assault.  The circumstances relied upon by the Crown were neutral, albeit that a limited number of them could give rise to an adverse inference.

[23]      The second ground was, like that of the first appellant, partiality in the charge.  The submissions of the first appellant were adopted.  The trial judge had devoted a significant part of his charge to an examination of the evidence.  He had erred in relation to the date of the meeting between the appellants and GS.  He had erred in relation to the appellants’ mobile phones.  His reference to the defence case had been brief and dealt with within a space of 16 lines.  The judge had failed to set out the explanations provided by the second appellant in relation to a number of the circumstances which were said by the Crown to be against him. 

[24]      The trial judge had erred in referring to the need for the second appellant to lodge a special defence of alibi without asking the jury to retire before doing so.



[25]      In relation to the first appellant, the trial judge had correctly addressed the issue of the debt.  The first appellant had transferred his shareholding in the Graf Mortgage Corporation, a company owned by the complainer.  The agreement provided that, if the complainer failed to pay the price, the shares would be returned to the first appellant.  At the time of the offence, some 5 months had passed without payment.  On any view, the arrangement could properly be described as one of debt.  The fact that the appellant had denied this, and the complainer had, for different reasons, agreed with him, was immaterial. 

[26]      When the charge was read objectively, no bias could be detected.  Counsel had, at the conclusion of the charge, described it as “scrupulously fair”, albeit that he had said that the trial judge should have repeated some of the submissions made in the defence speech.  The error made by the judge in relation to the date of the meeting had been minor and of no consequence.  The jury would have been aware that the correct date was 23 April.  It would have been obvious to the jury that the judge had made a mistake about the date, but no one had suggested that the meeting had taken place after the incident.  The significance of the evidence was the period during which the second appellant was thereafter absent from home; perhaps concealing any injury sustained in the van.  The first appellant had remained in his office for some time after the complainer had left.  Although the appellant had claimed that he had been speaking to employees about the day’s work, the employees, or at least one of them, had said that he was simply making small talk. 

[27]      It was accepted that the trial judge had been wrong to tell the jury that the Crown had relied upon evidence that the first appellant’s phone had been switched off.  Given the evidence and the submissions made about it in the speeches, it would have been clear to the jury that the judge was referring to the phones of the second appellant and GS.  He referred the jury to production 50, which contained the timeline in respect of the phones of the complainer and all of the accused.  The jury had copies of this.  It was significant that, in his submissions at the end of the charge, counsel for the first appellant had made no mention of this error. 

[28]      In relation to the time spent summarising the Crown and defence cases, most of the evidence led by the Crown, and referred to in the trial judge’s charge, had not been in dispute.  It was the duty of the judge to explain how the jury should approach circumstantial evidence.  The judge had made it clear to the jury what inferences could be drawn.  When the appellant gave evidence, he had been “at pains” to say that there was no debt.  The judge had, at the start of his charge, made it clear that it was the jury’s function to reach a view on the evidence.  He had repeatedly said that, when the Crown asked the jury to draw certain inferences, it was the jury’s choice whether or not to do so.  There was no requirement to repeat points made by counsel (Fraser v HM Advocate 2000 SCCR 755 at para [6]; Masocha v HM Advocate [2016] HCJAC 15 at para [20]).

[29]      The evidence against the second appellant had been sufficient.  It could be inferred from the circumstances that whoever had attacked the complainer had received information about where and when to carry out the attack.  The telephone contact between the appellants, especially at 8.43 and 9.03, was significant, because it demonstrated that the second appellant was in the area of Philipstoun at the material time.  Contact had been made about the time the complainer and the first appellant had left the garden centre and arrived at the locus.  The reference to the girl in Manchester could only have come from someone who knew, or had been told about, her and that she worked from home.  The disappearance of the second appellant was significant, as was that of the van.  The circumstances demonstrated motive on the part of the first appellant, who was closely associated with the second appellant.  Presence at the locus, opportunity and suspicious activity before and after the commission of the crime, were consistent with the second appellant’s involvement.  The question was not whether each of the several circumstances pointed towards the involvement of the second appellant, but whether the several circumstances, taken together, were capable of supporting the inference, beyond reasonable doubt, that the crime had been committed by the second appellant (Little v HM Advocate 1983 JC 16 at 20, cited in Megrahi v HM Advocate (supra) at para 33).

[30]      In relation to the meeting between the appellants and GS, the trial judge had made an error, but it was of no consequence.  The jury would have been well aware that the correct date had been 23 April.  The time taken to summarise the parties’ cases reflected the amount of evidence led by each.  Throughout the charge, the judge had made it clear that it was a matter for the jury to decide whether the incriminating inferences, which had been advanced by the Crown, should be made.  The extent of any duty to address the evidence was a matter primarily for the discretion of the judge with which the appeal court would not lightly interfere (Ramzan v HM Advocate [2015] HCJAC 9, at para [35]).

[31]      The discussion about the absence of a special defence of alibi in the presence of the jury did not constitute a miscarriage of justice.  The trial judge could not have anticipated the responses given by defence counsel about his surprise.  A certain amount of clarification could normally be expected to take place in the jury’s presence.  When it became clear that an issue had arisen, the jury had been asked to retire. 


[32]      In Snowden v HM Advocate 2014 SCCR 663, it was said (LJC (Carloway) at para 50) that, if a complaint of imbalance is to be regarded as justified, it has to be said that the trial judge, when referring to the evidence, had failed fairly to put the defence case to the jury (Scott v HM Advocate 1946 JC 90, Lord Carmont at 96).  Failure to mention a particular point or points raised by the defence in the course of a speech will not suffice.  The criticism had to be a substantial one of imbalance going to the whole “tenor” or “purport” of the charge, in the sense that it demonstrably favoured the Crown upon a contentious issue of fact.  The question was whether, looking at the whole tenor or purport of the charge, the judge had said, or had failed to say, something which might have had the result of misleading the jury or diverting them from their task (Snowden v HM Advocate (supra) at para 52). 

[33]      In Withers v HM Advocate 1947 JC 109, it was said (LJG (Cooper) at 115) that it was not legitimate to fasten upon isolated passages in order to subject a trial judge’s charge to a meticulous examination, as if the jury had not heard the evidence and the submissions of counsel.  The court affords the judge’s view considerable weight in determining the extent to which he ought to refer to the evidence.  He is far better placed to understand the real issues at trial (Hamilton v HM Advocate 1938 JC 134, LJG (Normand) at 144). 

[34]      The trial judge stressed several times that the assessment of the evidence was for the jury.  He described, in the context of what was a circumstantial case, where they could find the evidence from which they could infer guilt on the part of the appellants, or one or other of them.  He made it clear that it was their decision to determine whether adverse inferences could be drawn or not.  When he turned to the evidence itself, the judge properly put the various circumstances relied upon by the Crown to the jury in the course of explaining to them how the circumstantial case was built up.  He made no comment and expressed no view on whether the inferences, which the Crown had asked the jury to draw, ought to be made or not.  As he correctly said, when invited to set out the defence position on each circumstance, that had been for counsel to do in their addresses to the jury.  He had already mentioned the need for the jury to consider what had been said at that time.  Having dealt with the Crown case, the judge had turned to those of the defence and outlined their nature.  The defence cases, particularly in relation to the second appellant, were alibi.  The time taken by the judge to analyse the Crown case, as distinct from that for the defence, simply reflected the amount of evidence led during the course of the trial.  In short, the court is not satisfied that the criticism of partiality has been made out.

[35]      In so far as the trial judge may have erred in his explanation of the evidence, it is significant to bear in mind that he had repeatedly told the jury that it was their recollection of the evidence which counted.  Of course, that is not a complete answer if there has been a misdirection which can be seen as material in the sense of misleading the jury or diverting them from their task. 

[36]      The trial judge’s reference to the existence of a debt was entirely accurate.  Under the agreement, the complainer required to pay the first appellant the sum of £800,000.  If he failed to do so, the first appellant could require him to retransfer the shares.  It was the obligation to pay, combined with the threat made to the complainer in the van, that connected the first appellant with the attack as its instigator.  No doubt the first appellant would have been at pains to maintain that there had been no debt and the complainer may have said that, for sundry reasons, he was not obliged to pay, but that does not detract from the plain fact that a debt undoubtedly existed. 

[37]      The error in relation to the date of the meeting was a simple mistake which, when read along with the rest of the passage dealing with this matter, would have been patent.  It was clear that the meeting had taken place before the incident, which was the point of importance. 

[38]      The only matter of some concern is the trial judge saying that the first appellant’s mobile had been switched off at or about the time of the incident (or more accurately that it had not been in contact with any cell site).  That was not, according to the advocate depute, part of the Crown’s case as presented to the jury.  It may or may not be the case that the first appellant’s mobile was switched off.  On the basis of the information before it, the court is not in a position to reach a view on this with any confidence.  This is, at least in part, because the point was not raised in the Note of Appeal and the court does not have the judge’s report on the matter.  However, on any view, it was not a feature of the charge that was of real significance.  The jury had heard a substantial amount of evidence about the mobiles.  They had heard the speeches of both the defence counsel and of the advocate depute.  If the judge had been in error in his observation that it was part of the Crown case that the first appellant’s phone had been switched off, this too would have been obvious to the jury.  In any event, it is a matter which was not of central importance to the proceedings at trial.  If there was a misdirection, it was not a material one which has resulted in a miscarriage of justice.

[39]      The case against the second appellant was a circumstantial one.  It is necessary to look at the evidence as a whole.  Each circumstance does not require to be incriminating in itself.  The evidence may have been susceptible to more than one interpretation.  It was for the jury to determine whether to draw the adverse inferences which the Crown invited them to do.  If at least one inference from the circumstantial evidence is guilt, then there will be a case to answer.  In this case, there were several circumstances which were indicative of guilt.  There was the connection between the second appellant’s business and the meeting which took place between the appellants not long before the attack.  There was the second appellant being the registered keeper of the white Fiat Doblo van, which appears to have been used in the abduction.  There was the disappearance of the second appellant for several days after the attack.  Having regard to these matters, and to all of those detailed in the written Case and Argument for the Crown, there was a compelling case against the second appellant, which the jury would have been entitled to accept.  The ground based on insufficiency of evidence must therefore fail. 

[40]      For the reasons given in relation to the first appellant’s case, there was no partiality present in the trial judge’s charge, nor any error of fact of material importance.

[41]      Finally, the exchanges between the trial judge and counsel in relation to the absence of an alibi on the part of the second appellant did not create any prejudice.  A genuine issue had arisen during the course of the second appellant’s evidence, which had to be clarified.  It was clarified by the judge in an appropriate manner.  The second appellant’s counsel explained that he had not expected the answers which he obtained.  However, the second appellant was allowed to introduce a late alibi consistent with his testimony.

[42]      In all these circumstances, no miscarriage of justice can be seen to have arisen.  The appeals must therefore be refused.