Croly v. Her Majesty's Advocate  ScotHC 28 (11 May 2004)
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
LordCameron of Lochbroom
Appeal No: XC94/02
OPINION OF THE COURT
delivered by LORD CAMERON OF LOCHBROOM
APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Appellant: C. Shead; Aitken Nairn
Respondent:M. McLeod, A.D.; Crown Agent
11 May 2004 The appellant has appealed against her conviction on an indictment containing a charge of assault to severe injury and permanent disfigurement. The verdict of the jury was by a majority and there was a rider to the verdict that the assault was committed under provocation.  In his first report the sheriff sets out the evidence. The only eye-witnesses were the complainer and the appellant.  The complainer's evidence was that he was celebrating his brother's birthday in his brother's house. He was seated in the living room of the house drinking cider in company with others, including the appellant and her boyfriend. The complainer objected to the appellant smoking what he described as "whacky baccy" and said words to the effect "watch what you are doing with that". The appellant had responded by throwing a small red-handled stanley knife at the complainer's brother. The complainer did not notice what had happened to the knife after that but continued to sit and drink his cider. About a quarter of an hour later for no apparent reason and while he was still seated, the appellant approached him and made what he indicated was a slashing motion with her hand across his face. He did not notice any knife or blade in her hand at that point but immediately afterwards "there was blood all over the place". The appellant then left the house. The complainer waited for an ambulance to take him to hospital where he received six stitches to his left cheek.  The appellant gave a wholly different account both to the police during a taped interview and in evidence. She stated that she was not in the living room but in the hall with her boyfriend. She denied that she was preparing a "joint" but explained that her boyfriend was preparing to smoke heroin. It was to this that the complainer had taken objection. The complainer had then called her a "junkie bastard" and had come up to her, seized her by the throat and struck her in the groin with his knee. He then compressed her throat to the extent that she saw stars and thought she was going to die. She was struggling with her hands and at that point her boyfriend put something in her hand. She thought it was a craft knife. She then drew the knife down the complainer's face as that was the only part of him that she could reach. She saw blood appear and was then able to make her escape out of the house.  In cross-examination the appellant was questioned upon the line that she could have escaped. The appellant responded to the effect that she was struggling with her hands and struggling to move her legs. She could move her legs a bit but she could not escape "because of the strength of him".  The sheriff reports that in their respective submissions to the jury neither the procurator fiscal depute nor the defence mentioned provocation. However, in the course of her address the procurator fiscal depute described the law relating to self-defence and inter alia submitted that the appellant should not be believed as to self-defence. The appellant had claimed that she could not move or escape, yet she was apparently quite well able to struggle. It was not credible that she should be struggling with her hands in the air and at the same time her boyfriend should be able to place the stanley knife in her hand. She recommended that the jury should accept the account given by the complainer.  The defence solicitor in his submission to the jury, on the other hand, had emphasised the difference in the two accounts given by the complainer and the appellant. The complainer was neither credible nor reliable. He had referred to the appellant's account of the attack upon her as one in which she thought she was going to die. The knife had been passed to her while she was under attack and with no means of escape. In the circumstances the retaliation to the attack was not excessive and there was no cruel excess in her response.  In his report the sheriff goes on to explain that he considered that it was just possible that the jury, while accepting the complainer's account that he was in the living room when the assault took place, would nonetheless accept the appellant's account that there was some attack upon her by the complainer. In that event he considered that the question of self-defence needed to be considered and also the issue of provocation.  The appellant lodged a Note of Appeal in which she appealed against conviction on a single ground, namely that the sheriff misdirected the jury by introducing the concept of provocation for the first time at the trial in his charge. Amended grounds of appeal were subsequently allowed to be received. In these amended grounds it was contended, first of all, that the Crown led insufficient evidence to justify the appellant's conviction of the offence libelled, that properly understood the evidence lacked the necessary conjunction of testimony to satisfy the essential test of sufficiency and that in particular the appellant's account given in her interview with the police could not corroborate the complainer's evidence. In making his submissions in support of the ground of appeal relating to sufficiency of evidence Mr. Shead drew our attention to the divergence between the only two accounts of the incident given in evidence before the jury. In reply, the Advocate depute contended that it was open to the jury, in the light of the complainer's evidence, to discount the appellant's explanation for use of the knife. He made reference to Higgins v. HMA 1993 SCCR 542 at pp.556-557 and in particular to the citation by the court of the well known passage from the opinion of the Lord Justice General in Owens v. HMA 1946 JC 119 at 124.  In our opinion there is no substance in this ground of appeal. As the sheriff pointed out in his charge there was no dispute that the complainer sustained an injury consistent with being struck on the face with a knife or similar instrument. The account given by the complainer and by the appellant at interview, and indeed in her own evidence, was that the appellant had had possession of a stanley knife and had used it to strike the complainer deliberately. We observe that no submission of no case to answer was made at the end of the Crown case. However that may be, there was then before the jury evidence from which, if the jury believed the complainer's account and rejected (as they were entitled to do) the appellant's explanation which she gave in the course of the police interview, the jury would be entitled to find from two independent sources sufficient evidence in law to convict the appellant of assault. Since the appellant gave evidence consistent with her account at police interview, nothing turns on the content of her evidence as adding to or detracting from the account which she had given at police interview. Thus at the conclusion of the whole evidence the material before the jury was in its essentials no different from that at the end of the Crown case, except that the jury had had the advantage of having heard the testimony of the appellant herself.  The two further grounds of appeal as amended fall within the ambit of the original ground of appeal, since they are directed to the proper directions to be given to the jury in a case such as the present and the verdicts which were properly open to them in the particular circumstances of the case.  As we have noted above, the appellant, when she was cross-examined, was questioned on the line that she could have escaped, a suggestion which she denied. This line appears to have been predicated upon acceptance that some form of attack had been made upon the appellant by the complainer. When the procurator fiscal addressed the jury, no mention was made of provocation on behalf of the Crown. Rather the jury were invited to convict on the basis that the appellant should not be believed as to self-defence because there were means of escape available to her. The defence agent also made no mention of provocation. He invited the jury to believe the appellant on the ground that she was under attack and with no means of escape. Nothing appears to have been said about circumstances short of self-defence, under which her actings could be said to have taken place when the complainer was provoking her but her response arose while she was in an agitated state and was acting in the heat of the moment.  Mr. Shead submitted that by giving directions to the jury on provocation the sheriff had introduced an issue which had not been an issue at the trial and had not been raised in submissions either by the Crown or the defence. To have done so in this case was to have misdirected the jury as to the issues raised in the evidence during the trial and put before the jury by the Crown and the defence in their submissions. It was a misdirection which gave rise to a miscarriage of justice. Reference was made to Hobbins v. HMA 1996 SCCR 637. In reply, the Advocate depute contended that the question of provocation arose from the nature of the cross-examination of the appellant. This had proceeded on the basis that there had been a struggle between the complainer and the appellant, which indirectly raised the issue of whether there had been cruel excess in the appellant's use of the knife. Reference was made to Gilmour v. HMA 1994 SCCR 133.  In his charge the sheriff referred to the Crown case as proceeding upon the evidence of the complainer to the effect that he was seated in the living room "when for no reason apparently" the appellant came up to him and "suddenly used what turned out to be a blade of some kind" and cut him . He then advised the jury quite properly that corroboration of that evidence could be found both in the appellant's police interview and in the appellant's own evidence, since it was open to the jury to select parts of her evidence as truthful (where she acknowledged she used a knife) and reject those parts as untruthful which related to the self-defence. The case for the appellant was then set out inviting the jury to believe the appellant that she was acting in self-defence at the time that she used the knife. He then said this:
"In judging the matter, I do not think that it is disputed between the Crown and the defence in this case that if you were to accept that what (sic) the accused is saying then it would be open to you to conclude that she was in fact acting in self defence and in that event you would be bound to acquit because self defence is a complete justification of what an accused person has done".
Thereafter the sheriff directed the jury as to what constituted assault and self-defence. These directions were appropriate and unexceptionable. He reminded the jury that they were bound to acquit the appellant if they believed her account or if it raised a reasonable doubt as to self-defence. He then returned to the evidence. He began with the following passage:
"Now, there was a suggestion that the accused could have moved when she said she couldn't and she could have struggled free when she said she couldn't, but I don't think that that really goes to the question of self-defence because the two accounts were really quite separate. The first account by Henry Boyle is that there is an assault in the living room and he is seated and no question of self-defence arises. If you do not accept his account then that is an end of the matter, and if you have a reasonable doubt about it that is an end of the matter, you would be bound to acquit. It is only I think in assessing the question of provocation against self-defence that you need to view the matter of excessive retaliation. Upon the basis that there was a question of self-defence in the living room and frankly I don't see how it arises, but if you were to take the view that the incident took place in the living room and there was nonetheless a struggle there so that the accused was acting in self-defence, you would then need to consider the factors that I have referred to, and if you were not satisfied about self-defence in the living room you would then be entitled in returning a verdict, the verdict would need to be a verdict of guilty in circumstances of guilty under provocation; that is to say where the retaliation is excessive or for some other reason, self-defence failed, it is open to you to find the accused guilty under provocation. That is to reflect the fact that the complainer has provoked or caused the accused to become agitated or excited and alarmed and to retaliate in the heat of the moment. It is not a justification but it is a finding of guilt which with the rider of provocation attached to it would have an effect on the sentence. But as I say here, you are really faced with two separate accounts: one account took place in the living room with no apparent preamble on any particular incitement and the account which is given by the accused is a completely different situation, that is in the hall. Now you really have to decide, ladies and gentlemen, where the truth lies about that. If you are able to determine where the truth lies then you would be bound, as I say, to acquit (sic). Certainly, if you accepted that the true account was the account given by the accused, you would be bound to acquit. So the way to approach this first of all is to see whether you accept the complainer, Henry Boyle, as a truthful and reliable person. If you do not or if you have a doubt, a reasonable doubt about his evidence then that is an end of the matter and you return a verdict of acquittal. It is only if you accept his evidence you then require to consider the evidence of the accused and if you are able to reject her account that it happened in the hall then you would be able to regard the admission that she made about using the knife as corroboration of Henry Boyle. If on the other hand you were unable, you had a reasonable doubt about her evidence, then you would be required to give the benefit of that doubt to the defence and you would be bound to acquit. On the basis that once the self-defence becomes part of the case the onus rests upon the Crown to rebut that evidence and to rebut it beyond reasonable doubt".
" .. my direction to you on provocation is this: if having considered the case and following the directions I have given to you, you are satisfied beyond reasonable doubt that the accused is guilty, that is to say rejected and satisfied that you reject the defence of self-defence, and accordingly were compelled to come to the verdict of guilty, it would be open to you if you felt that the circumstances outlined by the accused in her account of how she came to strike the complainer were such that although they did not amount to a justification of what occurred, in other words it was not sufficient to amount to self-defence, nonetheless if you felt that the circumstances had occurred as she described them and that she was being held by the throat and kneed in the groin at the time that the blow was struck, then this could amount to provocation. That is to say, that although it wasn't excusable, nonetheless it occurred at a time when the complainer was provoking and the accused responded whilst in an agitated and excited state and was acting in the heat of the moment. If you were satisfied as to that then it would help the disposal of the case if you were to add that as a rider and to the verdict if your verdict were to be guilty and you felt there was provocation involved then it would be quite proper for you to indicate that by saying that your verdict was guilty while acting under provocation."
As we have already noted, the verdict was a majority one. In our opinion, the introduction of the issue of provocation was a misdirection in the circumstances of this case. The Crown case proceeded on the basis that those parts of the appellant's account given at police interview and again in her evidence in court relating to self-defence were untruthful. Furthermore in the first of the passages we have quoted from his charge, the sheriff indicated that it was not in dispute between the Crown and the defence that if the jury were to accept what the appellant had said it would be open to them to conclude that she was in fact acting in self-defence. The Crown invited the jury to reach a verdict on the basis that there was no attack by the complainer upon the appellant to which she was responding. As Lord Sutherland observed in Hobbins at p. 645, the purpose of charging a jury is to give the jury the necessary directions in law to provide a framework for their consideration of the facts and in particular to give them proper directions on matters which were in issue in the trial. It is not the function of the trial judge to speculate about possible lines of defence which have not been advanced in any way by the accused. In the present case it was for the Crown while founding upon the appellant's admission that the blow was deliberate, to displace the explanation attached to that admission. This was made clear in the well-known passage from the Lord Justice General's opinion in Owens. In the course of that passage the Lord Justice General said this at page 124:
"The panel relieved the Crown of the first part of the burden by himself admitting the stabbing with a lethal weapon, but attached to this admission the explanation of its being done in self-defence in the circumstances explained by him. The Crown cannot, we think, take advantage of the admission without displacing the explanation or at all events presenting to the jury a not less strong case that shows directly or indirectly that the explanation is false".
In the present case the Crown did not suggest that the explanation given by the appellant was other than wholly false. Just as in the case of Higgins, the Crown case before the jury was presented on the basis that the explanation of self-defence attached to the admission that the appellant had used the knife deliberately, was inconsistent with other evidence which they could accept, namely that of the complainer. There was no suggestion that even if the appellant were to be believed, the circumstances spoken to by her were not in law capable of amounting to self-defence. But there was nothing in the complainer's evidence to suggest that he had done anything to provoke the appellant or that the blow was delivered in the course of a struggle with the appellant. The live issue at the trial was therefore whether the complainer was to be believed in his account of the incident as being a sudden and unprovoked attack upon him by the appellant. The case for both the Crown and the defence was presented upon that basis. In particular the Crown did not submit that even if the circumstances spoken to by the appellant were to be accepted as truthful, they could not serve to amount to self-defence. By their verdict the jury clearly did not accept the evidence of the complainer as truthful in his evidence that the appellant had suddenly attacked him without any reason. His evidence, which was the only other source of evidence before the jury as to the circumstances in which the attack upon him occurred, was thus not capable of showing directly or indirectly that the appellant's explanation for her actings was false. The introduction of the issue of provocation by the sheriff against that background was prejudicial to the appellant in the circumstances of the present case. This is perhaps most clearly reflected in that part of the charge where the sheriff referred to a question of self-defence as arising in the living room, although the sheriff himself stated that he "frankly" did not see how it arose. If there was no basis in fact in the evidence for self-defence arising in the living room, all the more so there was no basis in fact in the evidence for any consideration of provocation arising from a struggle in the living room. It was inviting the jury to speculate upon matters for which there was no evidential basis and return a verdict accordingly. As it was, the verdict was a majority one. In the whole circumstances we consider that the misdirection amounted to a miscarriage of justice. The appeal will accordingly be allowed and the conviction quashed.