Richard Gordon v. His Majesty’s Advocate [2022] HCJAC 49

Note of appeal against conviction and sentence:-The appellant was convicted after trial at Glasgow High Court of the attempted murder of Brian Cleary by repeatedly striking him on the head and body with a knife. He was also convicted of carrying a knife in a public place contrary to section 47(1) of the Criminal Law (Consolidation)(Scotland) Act 1995.The appellant was indicted along with his co-accused, Brian Shields, who was ultimately acquitted by the jury. There had been cross incriminations, with Shields giving direct evidence of the appellant being the perpetrator. The complainer was a reluctant witness and failed to identify the perpetrator, however, there was other circumstantial evidence including CCTV and DNA evidence implicating the appellant. The appellant was convicted of both charges and sentenced to a period of imprisonment of 7 years on charge 1 and a consecutive sentence of 3 years on charge 2. The appellant appealed against his conviction and sentence. In relation to the appeal against conviction it was contended that the trial judge had misdirected the jury by failing to direct them that they could not convict the appellant on both charges based on the same species facti in that it was submitted 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 and in relation to charge 2, beyond the allegation of the use of the knife in charge 2, there was no evidence that the appellant had the knife with the intention of causing injury. It was submitted that the approach in Rodger v HMA 2015 JC 215 was inconsistent with what happened in McLean v Higson 2000 SCCR 764. Here the court refused the appeal against conviction on that ground. The court reiterated that what was said by the court in Rodger accurately reflects the law. The court stated that in the present case the requisite intention, which formed prior to the assault, could be inferred from the fact that after their argument in the appellant’s flat on the 16th floor, he followed the complainer from the building, at which point he was seen fiddling with an object which could have been the knife and there was therefore evidence to prove each charge separately. It was further contended that the trial judge misdirected the jury when he said:- “It's a matter for you to decide if Richard Gordon was lying and if he was why he was.” It was submitted on behalf of the appellant 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 and such evidence should simply be put out of their minds. The court rejected the argument put forward on behalf of the appellant which the court viewed as a suggestion that the trial judge was in effect inviting the jury to consider evidence against the appellant by false denial and considered that, when the charge was read as a whole, there had been no material misdirection and the second ground of appeal against conviction was also refused. In relation to the appeal against sentence it was submitted that the sentence imposed was excessive and, in particular, that the sentences for charges 1 and 2 ought not to have been consecutive to each other. The court observed that, having regard to what was said by the court in Nicholson v Lees 1996 JC 173, 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. The court reiterated that the court must have regard to the cumulative effect of consecutive sentences and the Scottish Sentencing Council, Guideline on the Principles and Purposes of Sentencing makes clear that any consecutive sentence must be fair and proportionate. The court here, having regard to the nature of the offence and the previous convictions of the appellant, which included a High Court conviction for rape and a High Court conviction for assault and robbery, considered that an overall sentence of 10 years was not excessive and the appeal against sentence was also refused.