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APPEAL AGAINST CONVICTION AND SENTENCE BY RICHARD GORDON [2022] ScotHC HCJAC_49 (23 December 2022)
URL: http://www.bailii.org/scot/cases/ScotHC/2022/2022_HCJAC_49.html
Cite as:
2023 SLT 549,
2023 SCCR 76,
[2022] HCJAC 49,
2023 GWD 2-24,
[2022] ScotHC HCJAC_49
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 49
HCA/2022/217/XC
Lord Justice Clerk
Lord Woolman
Lord Doherty
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
RICHARD GORDON
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Shand; Faculty Services Ltd, Edinburgh for Doonan McCaig & Co, Glasgow
Respondent: Borthwick KC, AD; the Crown Agent
23 December 2022
The trial
[1]
The appellant was convicted after trial of the attempted murder of Brian Cleary,
including serious injury, permanent disfigurement, and permanent impairment, by repeated
use of a knife. He was separately convicted of carrying a knife in a public place, contrary to
section 47(1) of the Criminal Law (Consolidation)(Scotland) Act 1995. He had been indicted
2
along with a co-accused Brian Shields and there were cross-incriminations. Shields was
acquitted.
[2]
There was direct evidence from Shields that the appellant was the perpetrator. There
was also a substantial body of circumstantial evidence which inculpated him.
[3]
The victim was a reluctant witness, but there is no doubt that he was assaulted and
that he had been severely injured. A joint minute agreed his injuries, which included several
wounds, a pneumothorax and damage to the tendons of his left arm, and the treatment
required.
[4]
The appellant lived in a high rise block in Glasgow. The complainer said he went to
the appellant's flat in the afternoon or evening of 3 October 2020. The appellant and Shields
were there. The complainer consumed some drink or Valium, left the flat and woke up the
next day in hospital. When he left the flat he did not see the appellant or the co-accused.
[5]
A witness who lived near the appellant heard screaming from outside and saw
someone (who on the evidence was obviously the complainer) leaning against a wall by a
bus stop. This was about 1945 hours.
[6]
CCTV footage showed the complainer leaving the block of flats and walking towards
the area of the bus stop. Within seconds the appellant and Shields came out of the stairwell
ground floor door and headed out of the building. CCTV filmed by an outside camera
showed the appellant adjusting his tracksuit bottoms at the left pocket area, the inference
being that he had something inside his lower clothing. Minutes later the appellant and
Shields returned and the appellant appeared to have a long thin object down the back of his
tracksuit. He and Shields were seen in animated conversation inside the lift. Footage of the
bus stop, which was some distance away, was too indistinct to make out anything other than
the presence of some figures.
3
[7]
There was scientific evidence of the complainer's blood on a Ralph Lauren top
recovered from the appellant's flat and a red puffer jacket recovered from Shields' flat.
Shields could be seen wearing the puffer jacket in the CCTV footage. The opinion of the
scientist was that the wearer of each garment could have inflicted wounds that caused the
blood to be spattered or was close by when that happened. A machete and the Ralph
Lauren top were recovered from the appellant's flat. The top was in the washing machine.
[8]
There were also traces of the complainer's blood on the stairs, landing and walls on
the 16
th
, 13
th
, 10th and 2
nd
floors of the appellant's high rise building. The appellant lived on
the 16th floor and there was significant blood staining on a wall in the stairwell on that floor.
[9]
The appellant was interviewed by the police. He told them that the complainer had
come to his flat and left to go and see someone downstairs. He said he did not see the
complainer again and repeatedly denied that he had gone downstairs in the company of a
then unknown male, who must have been Shields. He denied he possessed a Ralph Lauren
top. He denied using the stairwell to go from his home because he was wearing a moon
boot on his right foot and had mobility issues. He used the lift because of that. He denied
being in possession of a knife and denied assaulting the complainer.
[10]
There was ample evidence to show that the appellant had lied about numerous
elements of this account. It was agreed by joint minute that the appellant, Shields and the
complainer were the people shown on the CCTV footage. The appellant was wearing a grey
hooded top with dark sleeves and Shields was wearing a red puffer jacket.
[11]
The appellant did not give evidence. Shields gave evidence that he was in the flat
with the appellant when the complainer came in. The appellant and the complainer were
arguing and the latter left the flat, uninjured. The appellant then left and Shields followed.
At the bus stop the appellant and the complainer were fighting. Shields admitted joining in
4
by punching and kicking. The appellant then pulled out a knife and stabbed the complainer.
It was a black handled knife about 6 inches long. Shields panicked when he saw the knife
and ran off.
The appeal against conviction
[12]
Ground one contends that the trial judge misdirected the jury by failing to tell them
that they could not convict the appellant on both charges based on the same species facti. It
was asserted that a conviction under charge 2 depended on proof that the appellant had the
weapon with him with the intent of causing injury since the weapon was neither offensive
per se nor adapted for causing injury. It was further asserted that, leaving aside the
circumstances of charge 1, the evidence that the appellant had the knife with the intention of
causing injury was scant to non-existent. The argument advanced was that (i) an accused
cannot be convicted of two offences on the same species facti; and (ii) that this meant that the
same evidence could not be relied upon for conviction on two separate charges, even where
one was a common law charge and the other a statutory one, and notwithstanding that the
components required for proof of the one offence differed from the components of the other.
[13]
It was said that the approach in Rodger v HM Advocate 2015 JC 215, being inconsistent
with what happened in McLean v Higson 2000 SCCR 764, was wrong and should be departed
from. In Rodger v HM Advocate the appellants were convicted of a contravention of
section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (behaving in a
threatening or abusive manner, in a way likely, and intended, to cause a reasonable person
to suffer fear and alarm, or reckless thereanent) and of a contravention of section 16A of the
Firearms Act 1968 (possession of a firearm with intent to cause a person to believe that
5
unlawful violence will be used against him or another). In response to an argument that
they could not be convicted of both charges on the same evidence, the court said that:
"[15] ... the Latin term species facti means simply the facts which must necessarily be
established to constitute the offence in question. A body of evidence covering a
course of conduct or sequence of activities may well involve the commission of
offences with different species facti. Where two offences are charged there may be a
partial overlap in the set of facts which has to be established for each offence. But in
our view a partial overlap does not equiparate with identity in the species facti.
[16]
In our view, the species facti -- or factual ingredients -- necessary to constitute
the two statutory offences with which the appellants were jointly charged are not the
same."
The court observed at para [21]:
"[21] As we understood him, the solicitor-advocate for the first appellant accepted
that, where an offensive weapon was used in an assault, and the evidence
demonstrated possession of the weapon in a public place in the time leading up to its
actual use, there was nothing inept in a charge of assault being accompanied by a
charge of possession of the weapon in issue. Again as we understood him, this
acceptance was offered because it was recognised that the crime of using the weapon
was different in its factual constituents from the possessory offence; and in time it
preceded the former. The only basis upon which the solicitor-advocate for the first
appellant suggested the present case might be distinguished was that the time
involved was `short'. In our view that is plainly not a relevant distinction."
The foregoing observations in Rodger v HM Advocate accurately state the law on these issues.
It follows that the legal basis of this ground of appeal is not well founded.
[14]
In McLean v Higson the accused had been charged with assault by striking someone
with a knife, and a charge under section 47(1). However, the jury did not convict of assault
by using the knife, but merely by presenting it. The Crown consented to the conviction on
the statutory charge being set aside. It is unnecessary to decide whether the concession
ought to have been made, but we entertain some doubt as to whether it should have been.
The reason may have lain in a policy decision that where the use of the knife consisted in
mere presentation of the knife, the Crown would not seek conviction separately on the
statutory charge (see commentary in the SCCR report at p 766).
6
[15]
In any case, it is incorrect to say that it was only the facts showing commission of the
first charge which proved the intent required for the second charge. The requisite intention,
and that it had been formed prior to the actual assault, could be inferred from the fact that
after their argument the appellant followed the complainer from the building, at which
point he was seen fiddling with an object which could have been the knife. There was thus
evidence apt to prove each offence independently of the other.
[16]
The second ground of appeal relates to directions concerning the appellant's police
interview. It is not disputed that in respect of matters relating to his movements and
clothing there was evidence demonstrating that the appellant had lied. Counsel for the co-
accused focused on the evidence of the co-accused incriminating the appellant, and the lies
told by the appellant to the police. He suggested that the reason the appellant had lied was
that the co-accused account was truthful. In the course of his charge, dealing with these
submissions, the trial judge said:
"It's a matter for you to decide if Richard Gordon was lying and if he was why he
was."
It was submitted that the trial judge should have told the jury that if they concluded that the
appellant lied in his police interview that would not entitle them to conclude that he was
guilty or was likely to be guilty. They should have been directed to put out of their minds
any evidence they did not believe.
[17]
It seemed to us that counsel's development of his argument was effectively an
attempt to argue that the effect of the trial judge's charge was to invite the jury to consider
corroboration, or at least proof, by false denial. We are not willing to entertain that
argument. It was not foreshadowed in the grounds of appeal. In any case, we are satisfied
that it is not a good argument. It would in fact have been a misdirection for the judge to tell
7
the jury that the lies by the appellant had no relevance. It would probably have been more
accurate for the trial judge to tell the jury that if they concluded that the appellant lied about
these matters it may have a bearing on their overall assessment of his police statement. That
would have accorded with the thrust of the speech for counsel for the co-accused which was
to ask the jury to prefer the account given by the co-accused in evidence over the contents of
the appellant's statement. As the advocate depute pointed out, the judge told the jury that if
they rejected a piece of evidence they should simply put it to one side and not jump to the
opposite conclusion; that there was no onus of proof on the defence, and they could draw no
adverse inference from the fact that the appellant did not give evidence; and that it was for
them to evaluate the appellant's interview, giving them directions on how to do this. The
single sentence focused on by counsel for the appellant needs understood in that context. A
central issue in the case was whether the evidence of the co-accused should be believed, or
whether the appellant's police statement should be given credit. Taking the charge as a
whole we do not consider there to have been any material misdirection, let alone a
miscarriage of justice.
The appeal against sentence
[18]
The judge imposed a sentence of 7 years on charge 1 and a consecutive sentence of
3 years on charge 2. In his report he said:
"The appellant has a very bad record for violence with convictions at High Court
and Sheriff and Jury level. He has 16 previous convictions for offences including
rape, assault and robbery and assault to severe injury. He was convicted in 2009 for
a s.49 offence (knife) and sentenced to 11 months custody. Again, in 2016 he got
18 months for a s.49 offence. He clearly has not learned his lesson. Against his
record, these were separate offences, that merited separate sentences, which I
imposed to run consecutively given the appellant's record for having a knife/weapon
in a public place."
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[19]
The submission for the appellant was that the sentences should have been
concurrent. Reference was made to Allan v HM Advocate 1997 SCCR 23 where concurrent
sentences were imposed, although it was recognised that a different approach had been
adopted in other cases, eg Campbell v HM Advocate 1986 SCCR 516.
[20]
The question whether sentences should be concurrent or consecutive is a matter for
the court to decide having regard to all the factors in the case, including the extent to which
the offences are separate, the circumstances and places in which they took place, and the
record of the accused (Nicholson v Lees 1996 JC 173). This is recognised in the Scottish
Sentencing Council's Guideline on the Sentencing Process, para 31:
"When the offender appears for sentence on more than one offence and the court
decides to impose separate custodial sentences for two or more of the offences, it is
up to the court to decide whether the sentences are to be served concurrently (at the
same time) or consecutively (one after the other). This applies whether the offences
are on the same complaint or indictment or on separate ones."
[21]
It is essential to have regard to the cumulative effect of consecutive sentences. It is
important to consider whether that effect is excessive having regard to the actions of the
accused and his prior convictions. The cumulative sentence should be fair and
proportionate (Scottish Sentencing Council, Guideline on the Principles and Purposes of
Sentencing, para 1). This is reflected in the Sentencing Process Guideline, in respect of
consecutive sentences specifically, at para 34:
"When sentencing for multiple offences the total headline sentence must be fair and
proportionate."
[22]
The question for us is whether an overall sentence of 10 years for the offences of
which the appellant was convicted can be said to be excessive. Counsel for the appellant
frankly stated that had the judge imposed a cumulo 10 year sentence he would have had
difficulty in suggesting that it would have been excessive. As the trial judge pointed out the
9
appellant has a bad record. He has been convicted twice before in the High Court (rape and
assault and robbery), and on five separate occasions at Sheriff and Jury level (assault, assault
to severe injury; assault and robbery, and possession of a knife (repeatedly)). He is now 41
years of age, and the present very serious charges suggest that neither time nor age has
remediated him. The jury was satisfied that the actions of the appellant had the quality of
attempted murder. It was fortunate for the complainer that prompt surgical repair of his
tendons prevented serious lasting damage to the arm. The appellant armed himself with a
knife, took it with him into a public place with the intention of using it to cause harm, and
attempted to murder the victim with it. In these circumstances, against his very bad record,
we cannot say that an overall sentence of 10 years is excessive.
Disposal
[23]
For the foregoing reasons the appeal against conviction and sentence is refused.
