Man who attacked dog walker with block of wood fails in ‘double jeopardy’ appeal

The appellant claimed that he had been charged twice on the same facts and convicted on both charges, which amounted to “double jeopardy”.

But the Sheriff Appeal Court refused the appeal after ruling that charges were “separate and distinct” and that the facts necessary to constitute the two offences were different.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Ian Abercrombie QC and Sheriff John Morris QC, heard that the appellant James Laughlin was convicted following a trial at Perth Sheriff Court in May 2015 of assaulting Fiona Duncan by repeatedly punching Fiona Duncan and striking her on the head and body with a block of wood (charge 1), and of being in possession of an offensive weapon – namely a piece of wood – without lawful authority (charge 2).

The court was told that he had a “grudge” against the female complainer due to her using a communal garden area behind the block of flats where he lived as an access to and from a park where she walked her two dogs.

The sheriff concluded that the appellant had the block of wood in order to prevent the complainer coming through the gate entrance into the garden and that he had the wood in his possession “with the intention of using it to cause injury”.

The court heard that the appellant challenged the complainer and assaulted her by striking her three times on the head and body with the block of wood.

In the course of the assault in February 2014 the complainer fell to the ground and the appellant continued his assault by using his fists.

Leave to appeal was granted on the question of whether on the facts stated the sheriff was entitled to convict the appellant of charge 2 having convicted him on charge 1.

The solicitor advocate for the appellant contended that the double jeopardy arose because the Crown relied on the same evidence for both charges namely, the evidence that the appellant was in possession of a block of wood which he subsequently used in an assault on the complainer.

But the appeal sheriffs ruled that the sheriff was entitled to convict of both charges.

Delivering the opinion of the court, Sheriff Principal Stephen said: “Charge 1 is a common law charge of assault and charge 2 is the statutory charge prohibiting the carrying of offensive weapons in terms of section 47 of the Criminal Law (Consolidation) (Scotland) Act 1995. It is an offence for any person to have with him in a public place an offensive weapon.

“An offensive weapon is an article made or adapted for use for causing injury to a person or intended by the person having the article for use for causing injury to a person either by the person having it or some other person. The locus was undoubtedly a public place. Charge 1, on the other hand, requires proof of a deliberate attack on another with evil intent with or without a weapon.

“Accordingly, the facts necessary to constitute the two offences are different. In this case the evidence demonstrates clearly that the appellant had the piece of wood or offensive weapon with him in a public place prior to him using it. The appellant was, therefore, in possession of the offensive weapon prior to it being used.

“The charge of having the offensive weapon with him preceded the assault and can be distinguished from the situation where an individual may, in the course of or immediately prior to an assault on another, pick up a piece of wood or brick or other offensive weapon and use it. Plainly the charges are distinct and the evidence points to there being a gap in time between the appellant’s possession of the wood and his use of it.”

The Sheriff Principal added “The species facti required to constitute both offences are quite separate. The charges may be proved from the facts and inferences which can be drawn from the general body of evidence led by the Crown.

“The evidence in this case covers a course of behaviour on the part of the appellant firstly, being in possession of the piece of wood whilst in an agitated state and secondly, using the wood in the course of his assault on the complainer.

“The crime of using a weapon is quite different in character and facts to the offence of having or possessing it. The appellant’s possession of the block of wood preceded and was separate in time to his use of it as a weapon in the assault.

“Any overlap or partial overlap in the facts required to establish or prove the separate offences does not in itself involve double jeopardy and clearly not in the circumstances of this case.”