Glasgow man convicted of attempted murder at bus stop loses appeal against conviction

About this case:

• Citation:
  [2022] HCJAC 49
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Richard Gordon was convicted of the attempted murder of Brian Cleary after a trial at which his co-accused was acquitted. 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 and argued that the same species facti could not be used to convict him of both offences.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Woolman and Lord Doherty. Shand, advocate, appeared for the appellant and Borthwick KC for the Crown.

Intent to cause injury

The appellant and co-accused Brian Shields were tried for the attempted murder of Mr Cleary, including serious injury, permanent disfigurement, and permanent impairment by repeated use of a knife. The complainer’s evidence was that he had gone to the appellant’s flat on the afternoon of 3 October 2020 and consumed some drink or Valium. He then left the flat and woke up the next day in hospital. There was no doubt that he had assaulted and severely injured.

Mr Shields gave direct evidence that the appellant was the perpetrator. He had followed the complainer out of the flat and fought with him at a bus stop, including pulling out a black-handled knife and stabbing him. There was substantial circumstantial evidence available to the jury to inculpate the appellant, and evidence demonstrating that he had lied about numerous elements of his own account of events in his police interview.

It was contended by the appellant 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. Counsel for the appellant asserted that a conviction under the statutory offence 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.

The judge imposed consecutive sentences of 7 years’ imprisonment and 3 years’ imprisonment on the charges, noting the appellant’s previous record for violence and 16 previous convictions for offences including rape, assault and robbery, and assault to severe injury. In the appeal against sentence, it was submitted that the two sentences ought to have been made concurrent.

Bad record

Lady Dorrian, delivering the opinion of the court, began by addressing the appeal against conviction, saying: “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.”

On how the jury ought to have been directed, she said: “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.”

She continued: “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.”

Addressing the appeal against sentence, Lady Dorrian observed: “As the trial judge pointed out the appellant has a bad record. He has been convicted twice before in the High Court, and on five separate occasions at Sheriff and Jury level. He is now 41 years of age, and the present very serious charges suggest that neither time nor age has remediated him.”

She concluded: “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.”

The appeal against conviction and sentence was therefore refused.