Appeal Against Conviction And Sentence By Shaun Darroch Ferguson Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Bracadale,Lord Drummond Young |
| Neutral Citation | [2015] HCJAC 89 |
| Docket Number | HCA/2015-000445-XC |
| Published date | 22 October 2015 |
| Court | High Court of Justiciary |
| Date | 22 October 2015 |
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...
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