APPEAL AGAINST CONVICTION AND SENTENCE BY SHAUN DARROCH FERGUSON AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 89
HCA/2015-000445-XC
Lord Brodie
Lord Bracadale
Lord Drummond Young
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
SHAUN DARROCH FERGUSON
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Martin, solicitor advocate; Martin Johnston & Socha Ltd, Dunfermline
Respondent: McSporran, solicitor advocate, AD; Crown Agent
22 October 2015
Introduction
[1] This is an appeal at the instance of Shaun Darroch Ferguson who was convicted on 29 January 2015 after trial on indictment at Dunfermline Sheriff Court of the following charges:
“(001) on 1 October 2014 at Church Street, Buckhaven, Fife, you SHAUN DARROCH FERGUSON did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did repeatedly shout, swear and threaten to stab Michael Robinson and Robert Crockett, c/o Police Service of Scotland; CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010
You SHAUN DARROCH FERGUSON did commit this offence while on bail, having been granted bail on 29 September 2014 at Kirkcaldy Sheriff Court
(002) on 1 October 2014 at Lawrence Court, Buckhaven, Leven, Fife you SHAUN DARROCH FERGUSON did assault Michael Robinson, c/o Police Service of Scotland and did repeatedly strike him on the face and body with a knife or similar implement, and struggle with him all to his severe injury and permanent disfigurement
You SHAUN DARROCH FERGUSON did commit this offence while on bail, having been granted bail on 29 September 2014 at Kirkcaldy Sheriff Court”.
[2] There is one ground of appeal. It is directed at the conviction in respect of charge 2. It is in the following terms:
“The sheriff erred in failing to direct the jury in relation to provocation. That on a reasonable view of the evidence it was necessary that he direct the jury in relation to provocation. The omission resulted in a miscarriage of justice”.
The sheriff’s reports
[3] A feature of this case is what the advocate depute came to describe in his submissions as the “spare” terms in which the sheriff has reported to this court on the evidence led at trial and the respective positions taken by parties as to the effect of that evidence. Because of the brevity of the sheriff’s original report, he was invited by this court to provide a supplementary report expanding upon his account of the appellant’s evidence, giving a view as to whether, in the light of the decision in Duffy v HM Advocate [2015] HCJAC 29, he should have raised the issue of provocation with the jury, whether he considered there was an evidential basis for a finding of provocation and explaining on which of the two conflicting versions of events (that of the complainer and that of the appellant) he had sentenced the appellant. The sheriff has provided a supplementary report but beyond stating that it was the sheriff’s view that there was no evidential basis upon which he was required to raise the issue of provocation and that he had sentenced the appellant on the complainer’s version of the incident, it is limited to a relatively brief summary of the appellant’s evidence and a very brief reiteration of what had been the complainer’s position.
[4] It would appear from the sheriff’s supplementary report that the evidence in relation to charge 001 was relatively uncontroversial. The appellant appears to have accepted that on 1 October 2014 during the day he had come across the complainer and another person working in a garden. There had been an exchange between them to the effect that the complainer had “got the wrong windows”. This was a reference to the windows of a house behind that of the appellant that had been “put in” some time earlier. The complainer said that he would not get the wrong ones next time and walked towards the appellant. The appellant said that if the complainer came round to his house he would “get a surprise”. He called the complainer a “daftie”. The appellant walked further along the street but came back and told the complainer that if he came near the appellant’s house the appellant would stab him. Although the sheriff does not say so in either of his reports, we assume that the complainer gave a similar account of the incident which was the basis for charge 001.
[5] The position was different in relation to charge 002. Other than the joint minute agreeing photographs of the complainer’s injuries, the nature of these injuries and the presence of the complainer’s blood on a knife, the evidence appears to have been limited to that given by the complainer on the one hand and that given by the appellant on the other. They were at one as to the appellant having repeatedly stabbed the complainer at about 10pm on 1 October 2014 when the two of them were outside the door to the common close serving the block of flats where the appellant lived. However, the two accounts of the events immediately preceding the stabbing were entirely at odds. In his original report the sheriff summarises the complainer’s evidence as follows:
“Around 10pm [the complainer] appeared outside the appellant’s lower ground floor flat. He was unarmed. He knocked on the window of the flat and the appellant looked out. He said to the appellant words such as ‘are you going to come out the noo?’ or ‘I know what you’re daen’. He saw the appellant run through the back of his flat. The complainer stayed where he was on the path in front of the communal door. The appellant ran out the front door of his flat and through the communal door. He started knifing the complainer. The complainer did not realise he was being stabbed as he felt what he thought was a punch to the left side of his stomach. When the next couple of blows went in he realised he was not being punched by the appellant. He was stabbed five times in his back under the ribs up to his shoulder. The appellant was facing him and his arm came round from the side. The complainer struck the appellant who landed on his back. His evidence was that he had not attempted to hit the appellant before he was stabbed. He had not attempted to enter the appellant’s flat. The complainer’s ear was bleeding and he had been struck in the eye as well. He saw a knife in the appellant’s right hand like a kitchen knife from a block of knives”.
In his supplementary report the sheriff summarises the evidence of the appellant as follows:
“At around 10pm the appellant was sitting in his living room. He heard banging on the windows and shouting from outside. He thought his windows were going to be broken. He heard shouting ‘Come out, I ken you’re in there’. He looked out and saw the complainer, who shouted ‘you’re getting it’. The appellant said that felt threatened. He said that he did not feel safe even although he was in his own home. There was only the living room window between him and the complainer. He told the complainer to ‘fuck off’. The appellant said that he intended to go out the back door of the building. He didn’t have a phone to call anyone. The back door is that of the communal close. He said that the front door of the communal close did not lock. His flat has one door. He said that the complainer was inside the communal close. The appellant opened the door and the complainer was inside the common close. He took a swing at the appellant and hit him on the head. The appellant said that he pushed the complainer out of the front common close door. The appellant said that he followed the complainer out. The complainer was outside the communal close door and down two steps. The appellant said that he was at his own front door when he had been struck by the complainer. The distance from his front door to the communal close door was two metres. The complainer was waving his jacket about. The appellant came down the steps towards the complainer and was hit again on the right eye three to four times. The appellant said that he tried to hit the complainer back but he was a ‘big boy’. The appellant said that he was on the ground and the complainer was laying his boot into him. There was a knife on the ground next to the complainer’s jacket. He didn’t know how it came to be there. He said that he did not have it when he came out of his house. He thought to use it to get the complainer away from him. He thought he was going to get a severe ‘doing’. He was scared and picked up the knife and swung it about as the complainer was trying to hit him. He was trying to keep the complainer away from him. He did not know if he had struck the complainer. He said that the complainer had hit him to the ground again and laid about him. He got up and backed away into his house. When shown the knife involved he said that it did not belong to him. He said that the knife had a handle which he had thrown away. In cross-examination he admitted that he had repeatedly stabbed the complainer. After he had struck the complainer he backed away into the communal close and into his own house”.
Submissions
Appellant
[6] On behalf of the appellant Mr Martin, solicitor advocate, accepted that provocation had not been put in issue either by counsel representing the now appellant or by the procurator fiscal depute. However, on the appellant’s evidence, in the event of the jury finding that this was not a case of self defence, it was open to them to find that in stabbing the complainer the appellant had been acting under provocation as a matter of law. Mr Martin reminded the court of the circumstances which must exist for there to have been provocation by an act of violence. First, the accused must be attacked physically or believe that he was about to be attacked and reacted to that. Secondly, he must have lost his temper and self-control immediately. Thirdly, he must have retaliated instantly and in hot blood. Fourthly, the violence used by the accused in retaliation must be broadly equivalent and accordingly proportionate to the violence he faced. In Mr Martin’s submission, depending upon the view they took of the evidence, the jury would have been entitled to find that each of these elements was present in the instant case. That was so notwithstanding the appellant’s use of a knife. The sheriff was accordingly obliged to direct the jury to consider the option of finding the appellant guilty of assault but, subject to the rider of the assault being committed under provocation. Only if a court is able to conclude that no reasonable jury could, on the evidence, reach the view that there was provocation should directions on provocation be omitted. The sheriff was not relieved of his responsibility to consider the matter by reason of it not having been raised by parties.
Respondent
[7] The advocate depute accepted that in any case of assault tried on indictment the trial judge had a duty to consider whether provocation was an issue. If it might reasonably be inferred from the evidence that an accused had been acting under provocation then the appropriate directions should be given to the jury. However, it did not follow that such directions were necessary in every case or in every case where self-defence was allowed to go to the jury. The defence of self-defence and the mitigation provided by provocation were two quite different creatures. The contention that an accused person was acting in justifiable self-defence assumed that he was in control and responding rationally to a threat, whereas provocation involved acceptance of the fact that the accused had lost control of his actions. On the admittedly limited nature of the information made available by the sheriff in his reports, there was, in the submission of the advocate depute, no evidential basis for a finding that the appellant had been acting under provocation. The background was that the appellant had issued threats. He had chosen to leave the safety of his home. In using a knife his response was clearly disproportionate. There could not be said to have been a miscarriage of justice.
Decision
[8] In Ferguson v HM Advocate 2009 SLT 67 the court reaffirmed that if a direction in law is necessary in fairness to the accused the judge ought to give it even although the defence has not raised the matter. It follows from that proposition that if, in a trial on indictment, on any reasonable view of the evidence an alternative guilty verdict is available which is lesser than that which has been charged, then the judge must give sufficient directions to allow the jury to consider that alternative and, depending on their view of the evidence convict or acquit accordingly. This is not simply to safeguard the interests of the accused. This was explained by Lord Bingham in R v Coutts [2006] 1 WLR 2154 at para 12 in terms that were subsequently approved and adopted by the court in Ferguson:
“The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged”.
[9] In Ferguson the charge was murder, the criticism of the trial judge being that he had failed to direct the jury that it was open to them to return a verdict of guilty of the lesser and different offence of culpable homicide. Here the charge is one of assault. Accordingly, the appellant’s complaint is not that the jury should have been directed that he could be convicted of a different offence; an assault committed under provocation remains an assault. Rather, his complaint is that by reason of the sheriff’s failure to give the requisite direction, the jury were deprived of the opportunity of considering whether he had acted under provocation and in the event of their deciding that he had done so, articulating that by convicting not of assault as libelled, but of assault subject to the rider “under provocation”. Thus, although the circumstances are different from those in Ferguson the rationale of the contention that there has been a miscarriage of justice is the same: on one view of the evidence a guilty verdict was available which was more favourable to the appellant than the charge on the indictment; fairness therefore required that the jury, as judges of the evidence, be given the option of returning that verdict if they decided it was appropriate to do so; in order to give them that option they had to be directed as to the availability of the verdict and upon what evidential basis it might be returned; the necessary direction was not given; there therefore had been a miscarriage of justice. An argument to that effect succeeded in Duffy.
[10] However, a trial judge is only obliged to direct the jury on provocation if, on the evidence, a reasonable jury might find the necessary elements to have been made out. These are that the accused has been attacked physically, that he had lost his self-control immediately, and that he had retaliated instantly and in hot blood with violence not grossly disproportionate to the initial provocation. If the trial judge considers that on no view of the evidence could these elements be held to have been made out, then it is his duty not to direct on provocation. Charges should not be encumbered by directions which are unnecessary for a resolution of the issues raised by the evidence led.
[11] The argument in the present case is that, depending on the view that they took of the evidence, the jury might have rejected the plea of self-defence, perhaps by reason of the degree of violence used by the appellant, while accepting that the appellant had been acting under provocation. The difficulty for this court in assessing that argument is that the sheriff’s discussion of the evidence and how it was led is so exiguous. The sheriff may have been entitled to exclude provocation but despite having been invited to provide a supplementary report, we do not consider that he has explained why, on the most favourable possible view of the evidence from the perspective of the appellant, he considered that he was so entitled. It is therefore possible that because the sheriff failed to give the relevant direction the appellant has been convicted in terms that were more adverse than otherwise might have been the case. If that is what occurred it would amount to a miscarriage of justice.
[12] Given the nature of the assault in respect of which the appellant was convicted and his serious record of previous offending, we consider that any miscarriage of justice that has occurred here would be remedied by quashing the conviction in respect of charge 2 as it stands, substituting therefor a conviction in identical terms but with the rider “under provocation”, quashing the sentence of 5 years imprisonment and substituting therefor a custodial sentence of 4 years and 6 months imprisonment backdated to 3 October 2014. That is what we shall do.