Darren Finnegan v. His Majesty’s Advocate [2024] HCJAC 33

Note of appeal against conviction:- On 26 October 2023, following a trial on indictment at Glasgow Sheriff Court, the appellant was convicted of two charges:- (1) charge 1 - having with him an offensive weapon, namely, a knife in a public place contrary to section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995; and (2) charge 3 – a charge of assault to injury by repeatedly striking Lee McDaid on the body with a knife. A further charge relating to an allegation of stabbing Charlene Kerr was found ‘’not proven” by the jury. On 16 November 2023, following the obtaining of a Criminal Justice Social Work Report, the sheriff sentenced the appellant to an extended sentence of 6 years comprising of a custodial element of 4 years and an extension period of 2 years. The appellant appealed against the conviction it being contended that the sheriff failed to provide the jury with balanced directions on the critical issue of identification, in particular, that the sheriff failed to adequately deal with a prior statement which had been put to one of the witnesses and failed to warn the jury about the dangers of identification evidence in incidents involving a fast moving and traumatic event. It was submitted that the witnesses only had the benefit of a fleeting glace of the perpetrator and, under reference to the suggested directions in the jury manual, the sheriff ought to have directed the jury that errors can arise in identification and that the evidence had to be looked upon with care, particularly, where the alleged perpetrator was unknown to the witnesses, as in the present case. Whilst it was recognised that the precise terms of directions to be given to a jury were a matter for the discretion of the trial judge, the failure to so direct the jury in the particular circumstances of this case amounted to a misdirection resulting in a miscarriage of justice. On behalf of the Crown it was submitted that the trial sheriff’s directions in relation to the use the jury could make of prior statements was adequate and followed those in the Jury Manual. Further, it was submitted that the sheriff’s directions in relation to identification did not lack balance and reference was made by the sheriff to the fact that the witnesses did not know the appellant. Here the court refused the appeal. The court reiterated what was said in Snowden v H.M.A. 2014 S.C.C.R. 663 that where the contention is that the trial judge failed to direct the jury in a balanced manner the appellant required “to demonstrate that, looking at the charge as a whole, its tenor was unbalanced in the sense of demonstrably favouring the Crown upon a contentious issue of fact raised during the trial”. Here the court considered that the sheriff, presiding over a very short trial, with the evidence concluding in a day, adequately covered both the use of prior statements and the issue of identification in his directions to the jury. The court stated that this was not a “fleeting glimpse case” and whilst it was a fast moving and traumatic event there was adequate opportunity for eye witnesses to see the perpetrator and identify him in due course, as they had done here, not via dock identification but by a VIPER identification and by the use of emulator sheets. The court also observed that it was not simply an eye witness case in that there was evidence of a statement which was part of the res gestae, namely, “Fucking stab them, Darren” coming from one of the females who was present.