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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> GRAHAM, APPEAL AGAINST CONVICTION BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_4 (11 January 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_4.html
Cite as: [2018] HCJAC 4, [2018] ScotHC HCJAC_4
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2018] HCJAC 4
HCA/2017/000083/XC
Lady Paton
Lord Brodie
Lord Drummond Young
OPINION OF THE COURT
delivered by LADY PATON
in
APPEAL AGAINST CONVICTION
by
SEAN RAYMOND GRAHAM
against
HER MAJESTY’S ADVOCATE
Appellant
Respondent
Appellant: CM Mitchell, Advocate; Faculty Services Ltd
Respondent: Farquharson AD; Crown Agent
11 January 2018
Self-defence and provocation
[1] On 18 January 2017, after a trial in Airdrie Sheriff Court, the appellant and his co-
accused Charlene Johnson were found guilty by majority of the following charge:
“(1) on 8 June 2016 at [an address in Cumbernauld], you … did assault Stuart
Maxwell Raeburn … and did repeatedly punch, kick … his head and body to his
injury.”
When returning their verdict, the jury deleted the word “stamp”.
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[2] The appellant had lodged a special defence of self-defence in the following terms:
“Brown for the Pannel states that the Pannel pleads not guilty and specially and
without prejudice to said plea, states that on the occasion libelled by the Crown the
Pannel was acting in self defence of himself and also on behalf of another namely his
partner Charlene Johnson, the parties having been attacked by the Complainer.”
[3] The appellant gave evidence. No other evidence was led on his behalf. The co-
accused did not give or lead any evidence. The appellant and the co-accused were convicted
and sentenced to 18 months imprisonment.
[4] The appellant appeals against conviction. He contends that the jury should have
been given directions not only in relation to self-defence, but also in relation to provocation.
In preparation for the appeal hearing, transcripts were obtained of the evidence of the
complainer Stuart Raeburn, his partner Louise Sanderson, and the appellant.
An outline of the circumstances of the offence
[5] The evidence disclosed that on 8 June 2016 the appellant and his partner Charlene
Johnson were invited to the home of the complainer and his partner Louise Sanderson.
Louise did not drink, but the others were drinking heavily. A fight broke out, during which
the appellant and Charlene punched and kicked the complainer. Louise managed to make
the appellant and Charlene leave. The police arrived. Statements were taken. An
ambulance took the complainer to hospital. The appellant and Charlene were subsequently
charged with assault to injury.
Report from the trial judge
[6] In his report, the trial judge (Sheriff Derek O’Carroll) stated that he considered that
directions on provocation were unnecessary. At paragraph 25, he explained:
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“It seemed to me however that this was not a case in which the need to direct on
provocation arose. Two starkly different and incompatible versions of events were
placed before the jury. The Crown’s case was that of an unprovoked assault by the
two accused on the complainer as he was trying to leave the house and who did not
manage to fight back and who did not have wood as a weapon. No question of self-
defence or provocation arose on that version. For the defence, the account was of an
unprovoked attack by the complainer on the Appellant and the co-accused to which
the Appellant responded by wresting the wooden weapon from the accused and
then when the complainer began punching the Appellant, he responded in kind, in
self-defence, resulting in comparatively minor injuries with no weapon. On that
version, importantly, there was no question of excessive or disproportionate force
being used by the Appellant on the complainer (unlike other cases where a plea of
self-defence has failed because the force used in response to initial violence was
excessive or disproportionate). More importantly, there was no evidence that the
Appellant ‘lost control over himself, when his presence of mind had left him and
without thought of what he was doing’ (See Jury Manual, Chp 24.1, paragraph 1 and
authorities cited therein). That is an essential element of provocation (along with
physical attack, instant retaliation and proportionality of response.) The Appellant
expressed no such feelings or reaction. On the contrary, the Appellant referred to his
superior size and the complainer’s alleged high level of intoxication and gave the
impression, on his account, that he was able to deal effectively with the complainer’s
alleged assault on him and saw no need to involve the police. In short therefore, it
seemed to me that the jury had before it two competing and incompatible versions of
the incident to consider, neither of which included all the elements of provocation
and none of the parties involved raised the question of provocation either. In all
these circumstances, I did not consider that a reasonable jury could have convicted
with a provocation rider and rightly or wrongly, I did not direct on provocation.”
Selected excerpts from the transcripts
[7] We acknowledge that this court had the benefit of transcripts, which the sheriff did
not. We also note that the excerpts to which our attention was drawn were mainly those
parts of the evidence which, if accepted by the jury, might have provided a basis for
returning a verdict of guilty of assault with the rider “under provocation”.
The complainer Stuart Raeburn
[8] Mr Raeburn was a reluctant witness. In examination-in-chief, he stated that he did
not want to incriminate the accused. Ultimately he adopted a statement which he had given
to a police officer on 8 June 2016 on the basis that he could not now remember what had
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happened, but he must have told the police the truth. His police statement was in the
following terms:
“I am 33 years old and stay at home with my partner.
About 2000 hours on Wednesday 8th June 2016, I was out in the back garden of my
house drinking with Charlene Johnson and her partner Sean, Sean is mid 30’s, 6’2”,
skinny, brown hair, no top on and dark blue jeans. We were out drinking, my
partner Louise Sanderson doesn’t drink. Then we fell out for some reason, well I did
with Charlene and Sean.
Sean out of nowhere, went for me. He punched me on the face and I fell onto the
ground. When I fell onto the ground, Charlene started to stamp on my head, she
kept doing it and she was doing it with some force. Then Sean picked me up and
punched me again. I fell down again.
Louise managed to get me to into the kitchen. They both followed me into the house
and both of them were punching and kicking me when I was on the kitchen floor.
Louise managed to get them out and they were shouting when they walked away.
My nose is absolutely killing me and the police came. I went to the hospital in an
ambulance.”
[9] In the initial stages of his cross-examination by the appellant’s agent, the complainer
confirmed that he had been drinking Buckfast since 11 am on the day of the incident (page
67 line 22 and page 68 line 3). He knew that he should not be drinking as he was taking
medication for depression (page 68 line 23 to page 69 line 5). He acknowledged that
combining his medication with alcohol could result in blackouts and memory loss (page 69
line 22 et seq). He confirmed that, on the day of the incident, he was suffering stress, grief
and upset as a result of the issues relating to his children (page 74 line 15). He was then
asked about losing his composure as a result of the strain which he was under:
“[page 75 line 14] Q: … you’ve no recollection of taking a garden post from your
back garden. Do you remember doing that at all? A: No. Q: Is that possible? A:
Could’ve been. Q: Yes. Brandishing that at [the appellant], and tried to strike him
with that, can you remember, did that happen? … Could that have happened? A: It
could’ve …
“[page 77 line 3] Q: … will you not agree with me that you did somewhat lose your
composure here and started wildly lashing out at people? A: Aye. Q: You said
that? A: Mh hmm. I was angry ‘cause I’d just had my kids taken off me, two weeks
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before. Q: And that must have weighed very heavily with you, I’m sure? A: Mh
hmm. Q: … and [the appellant and Charlene] had arrived at your invite with their
own young children who I think are not far removed from the ages of your own
children, is that right? A: Yes. Q: … Did that upset you? A: Yes. Q: You lost it,
didn’t you? And you started waving this garden post around? A: … I’m no actually
sure what happened.”
[10] In re-examination, the complainer retracted or denied much of what he had said in
cross-examination.
The complainer’s partner Louise Sanderson
[11] Miss Sanderson stated that she did not drink. She had not seen everything that
happened during the incident. She had been preoccupied as a result of losing her children.
Latterly she had become scared. In examination-in-chief, she said:
“[page 90 line 5] … when [the complainer] does drinking, I don’t let him come near
me …
[page 96 line 3] … When [the complainer] drinks, he’s not hisself …
[page 102 line 7] There was a bit of wood that we had … we had a bit of wood in the
garden that was, got pulled out …”
In cross-examination by the appellant’s agent, the following exchanges took place:
“[page 133 line 19] It [the piece of wood] wasn’t a post.
[page 138 line 14] Q: Did you see [the appellant] having to take the bit of wood off
[the complainer]? A: I seen that, yeah, but I never seen [the complainer] picking a bit
… Q. Right. Hang on. You saw that? You saw [the appellant] take the bit of wood
[off the complainer]? Did you agree with that? A: Yes …
[page 139 line 18] Q: So does it come to this, Miss Sanderson: you didn’t see all of
the incident, and you accept that you see [the complainer] having this piece of wood
taken off him by [the appellant]? A: Yeah …
[page 142 line 2] [The complainer] was out of control because he was on his tablets.”
In re-examination, questions and answers included the following:
“[page 149 line 11] Q: … So when Mr Brown [the appellant’s solicitor] put the
suggestion to you that [the appellant] had taken a piece of wood from [the
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complainer], did you see that or not? A: I kind o’ seen it. Well, just, I really can’t
remember that day because my daughter got taken away.
[page 151 line 13]: Q: The ladies and gentlemen might infer from you saying [the
complainer] was out of control that he was somehow behaving aggressively or
violently. Is that the truth? A: On these tablets, when he mixes medication wi’
drink, yes he can be. Q: He can be what? A: Aggressive. Q: Aggressive. On that
night, did you see him behaving aggressively. A: No.”
The appellant
[12] The appellant described how he and his partner Charlene and her two children had
intended to go to Mr Ali’s shop and then to the swing park. At the shop, they met the
complainer, whom they knew. He asked them to go into the shop and buy drink for him.
He did not want the shopkeeper to be able to tell his partner Louise that he had bought
drink. He was already showing signs of having been drinking. The appellant went into the
shop and bought the complainer a bottle of Buckfast. The complainer then invited them all
to his house. The appellant knew that the children of the complainer and his partner had
just been taken into care. However he thought that Charlene’s two young children would be
welcome, and accordingly accepted the invitation. Drink was consumed by the complainer,
the appellant, and the co-accused (but not by Louise Sanderson). The complainer was
becoming more upset. In examination-in-chief, the appellant explained:
“[Page 12 line 24] … as the night or the day was going on, he was gradually getting
more upset. I think he was starting tae, you know, I know a lot o’ people that have
been drinking start getting a wee bit more emotional especially, obviously, what’s,
you know, whatever’s happened wi’ his kids. You know, he’s started getting a bit
more emotional, and he’s started crying at one point … He was trying tae talk to me
about it … I’ve not got any kids of my own. I said, probably the best person tae talk
to would be Charlene [the co-accused] … about this, which he did …
[Page 15 line 17] … a kind o’ an argument started. He [the complainer] was starting
to get quite loud. Quite aggressive towards Charlene … Charlene and [the
complainer] ended up going out in tae the garden … then ah’ve got up and ah’ve
come out to make sure Charlene was okay …
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[Page 16 line3] Q: Why did you do that? A: Because I could see [the complainer]
kind o’, he was kind o’ pushing at Charlene, he was pushing at her and Charlene was
… Charlene was trying … to console him … Q: And what was his response? A. By
pushing her. Pushing her away … He was quite … aggressive lookin’ …
[Page 16 line 21] I’ve actually said tae Charlene, let’s just get … obviously there was
a lot o’ swear words involved, and I’ve tried to get Charlene tae get out the back
gate, just tae leave …
[Page 17 line 24] … as we went out, there’s been a bit o’ a ruckus, really, pushing and
shoving …
[Page 18 line 6] … we’d been trying to get out the back … ah had ma back turned tae
[the complainer], Charlene was facing me and all ah can remember was Charlene
shouting ‘Sean’. I’ve automatically came and jumped forward towards Charlene but
turned at the same time. Just then, I felt something hit ma back. I then looked, to see
in his hands was a, which I could only describe as, like a two by four, a block o’
wood … it was like a fencepost … Q: … who had that? A: [The complainer].
[Page 19 line 2] I felt something hit ma back … I had turned round and just then, he
was gonnae strike me with it again and I’ve tried to grab it and by this point, we’re
kind o’, a tussle to say the least … he was, really, really angry. He was shouting …
he was just, he was really intoxicated. Really, really drunk. I couldn’t make out
what he was actually saying.
[Page 20 line 11] I couldn’t get the stick off him … Charlene was, I believe she was
obviously trying tae protect me as well, at the same time … He’s took it back tae hit,
and get another swing wi’ the stick and he’s actually got Charlene full force in the
face …
[Page 21 line 4] … as far as I could tell, Charlene was knocked out … because she was
lying in a, like jaggy nettles … and she wasnae moving … Then I turned round to try
and get the stick back off him … I managed to get it off him and threw it away …”
The appellant went on to describe the complainer holding a garden hoe, which Charlene
managed to remove (page 22 line 20). The appellant said that the complainer was punching
them, and he was punching the complainer. He said that he was clear that it was the
complainer who attacked him (page 23 line 11). He said that he would not need a weapon to
deal with the complainer as he (the appellant) was 6½ feet tall and the complainer was more
than a foot smaller than him (page 25 line 11) and also under the influence of alcohol (page
25 line 23). He had some sympathy for the complainer (page 28 line 4).
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[13] In cross-examination by the procurator fiscal depute, the following exchanges took
place:
“[Page 46 line 9] Q: What was it that made you lose control of your temper? A: I
didn’t lose control of my temper … Far from it.
[Page 53 line 1] Q: … you lost control of your temper … What was actually
happening when you were tussling? A: I was trying to get the stick off him.
[Page 55 line 4] Q: [The complainer] called the police because he was the one under
attack, and you can’t get away from that fact, can you? A: You can’t get away fae
the fact that [the complainer] started it, picked up a stick and started hitting us with
it …”
Submissions for the appellant
[14] Counsel for the appellant submitted that, notwithstanding the jury’s rejection of the
appellant‘s special defence of self-defence, there was an evidential basis upon which the jury
could, if they so chose, return a verdict of guilt subject to the qualification that the appellant
had been provoked. The transcripts demonstrated that. Questions of credibility and
reliability were for the jury. The jury were entitled to accept parts of a witness’s evidence,
and to reject other parts. There had been evidence which, if accepted, satisfied the four
requirements for provocation. A direction relating to provocation was therefore necessary.
The lack of such a direction resulted in a miscarriage of justice (either on the basis of McInnes
should be quashed, and a conviction in identical terms but with the rider “under
provocation” substituted. The sentence of 18 months should be quashed, and a lesser
sentence substituted.
Submissions for the Crown
[15] The advocate depute submitted that, on a proper understanding of the evidence, the
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four-stage test for provocation was not satisfied. The sheriff had heard the evidence. He
had seen the witnesses and had an opportunity to assess their demeanour. The appeal court
should be slow to interfere.
[16] The court’s attention was drawn to features of the appellant’s evidence which were
at odds with other witnesses’ evidence (for example, his denial of his own intoxication, and
the fact that he claimed to have been hit on the back with the piece of wood when there was
no record of any injuries to the appellant). His kicking and punching of the complainer
could not be regarded as “instantaneous”. The only evidence of kicking was in the kitchen,
once the complainer had been pursued from the garden into the kitchen. There was no
evidence of loss of control on the appellant’s part. The appellant himself denied any loss of
control. The kicking and punching of the complainer was disproportionate.
[17] There had been two competing accounts. The sheriff was in the best position to
assess those accounts and to decide whether or not a direction relating to provocation was
required. There had been no miscarriage of justice. The appeal should be refused.
Discussion
[18] The question at issue is whether the sheriff should have given the jury directions
about provocation.
[19] It is not in dispute that it is the jury’s task to decide questions of credibility and
reliability, to determine what evidence to accept and what evidence to reject, and to
conclude what inferences could be drawn from evidence which they accepted. Similarly it is
not in dispute that the jury are entitled to accept parts of what a witness said, and to reject
other parts.
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[20] In the present case, we consider that it was open to the jury, on the evidence, to
conclude that the following circumstances had been sufficiently established (bearing in mind
that the appellant did not have to prove anything, and in particular did not have to satisfy
the rules of corroboration or meet the standard of proof of “beyond reasonable doubt”).
On 8 June 2016 the complainer and his partner were suffering considerable grief
and upset because their children had been taken into care.
The complainer had consumed drink and medication, which could make him
aggressive.
The complainer’s drinking also made him more emotional.
When the appellant and his co-accused Charlene, who had arrived accompanied
by her children, tried to offer advice and consolation, the complainer became
angry, upset and distressed, started crying, and ultimately became aggressive.
It was also open to the jury to accept the evidence of three witnesses (Louise Sanderson, the
appellant, and indeed the complainer himself) to the effect that the complainer, when angry
and upset, had possession of a piece of wood which resembled a fence post, which he
brandished and (if the jury accepted the appellant’s evidence on this matter) used to strike
both the appellant and Charlene.
[21] As the jury convicted the appellant of assault, they clearly rejected his special defence
of self-defence. They may have taken several factors into consideration, including the height
and build of the appellant compared with that of the complainer, and the fact that the
complainer was drunk and was outnumbered by two to one. But it does not necessarily
follow that the jury would have rejected the concept of an assault committed “under
provocation”.
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[22] The Jury Manual sets out a possible direction on provocation where self-defence is
pleaded, as follows:
“Provocation is quite distinct from self-defence, and shouldn’t be considered along
with it. I’ve already told you about self-defence, so first you decide if the accused
acted in self-defence. Only if you thought he hadn’t, would you again look at the
evidence, and decide if he had acted under provocation.
Provocation by violence
Provocation may arise for consideration when each one of these four circumstances
exists:
1) where the accused has been attacked physically, or where he believed he was
about to be attacked, and reacted to that. The danger of attack must be immediate,
not in the future. The belief must have been held on reasonable grounds, even
though they might turn out to have been mistaken. A mistaken belief must have had
an objective background. It can’t be purely subjective or of the nature of a
hallucination.
2) where he has lost his temper and self control immediately,
3) where he has retaliated instantly and in hot blood. If he had time to think, and
then acted, that would be revenge, not acting under provocation,
4) where the violence of his retaliation was broadly equivalent to the violence he
faced. There must be no gross disproportion between the accused’s violence and the
violence which prompted it. It’s the degrees of violence you compare. The fact that
the effect of the retaliating violence was more serious than that of the provoking
violence doesn’t necessarily mean that it was grossly disproportionate.”
[23] In the present case we consider that there was an evidential basis for provocation
which the jury could accept if they were so minded, namely a physical attack on both the
appellant and his co-accused with a piece of wood which was like a fence post; a resultant
loss of control on the part of the appellant (despite his assertion to the contrary); a
retaliation which might be regarded as “instantaneous”; and a level of violence (punching
and kicking, without a weapon) which a jury might consider broadly equivalent to the
attack on the appellant. We accept that there might be differences of view about each one of
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those matters: but they were relevant matters in the context of provocation which, in our
opinion, were for the jury’s assessment and decision.
[24] It may well be that, for reasons of tactics or effective presentation, neither the
prosecution nor the defence mentioned “provocation”. However as was explained in
Ferguson v HM Advocate 2009 SCCR 78, it is for the trial judge to give such directions as are
necessary in an endeavour to ensure that the accused is neither over- nor under-convicted.
In that case Lord Osborne, delivering the opinion of the court, quoted with approval certain
paragraph 23:
“The public interest in the administration of justice is, in my opinion, best served if in
any trial on indictment the trial judge leaves to the jury, subject to any appropriate
caution or warning, but irrespective of the wishes of trial counsel, any obvious
alternative offence which there is evidence to support… I would also confine the rule
to alternative verdicts obviously raised by the evidence: by that I refer to alternatives
which should suggest themselves to the mind of any ordinarily knowledgeable and
alert criminal judge, excluding alternatives which ingenious counsel may identify
through diligent research after the trial. Application of this rule may in some cases
benefit the defendant, protecting him against an excessive conviction. In other cases
it may benefit the public, by providing for the conviction of a lawbreaker who
deserves punishment. A defendant may quite reasonably from his point of view,
choose to roll the dice. But the interests of society should not depend on such a
contingency.”
[25] Lord Bingham went on to advise that any question of unfairness in the trial arising
from such an approach on the part of the trial judge could be avoided if notice were given at
an appropriate time of the trial judge’s intention to give directions in relation to an
alternative verdict:
“There may be unfairness if the jury first learn of the alternative from the judge’s
summing up, when counsel have not had the opportunity to address it in their
closing speeches. But that risk is met if the proposed direction is indicated to counsel
at some stage before they make their closing speeches. They can continue to
discount the alternative in their closing speeches, but they can address the jury with
knowledge of what the judge will direct.”
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[26] While the plea of provocation would not exculpate the appellant (in contrast with the
special defence of self-defence), if a rider of “under provocation” were to be added by the
jury, the crime would be less serious and any sentence should reflect that.
[27] In this case, we are unable to conclude that no reasonable jury could, on the
evidence, reach the view that there was provocation (cf Duffy v HM Advocate 2015 SCL 544 at
paragraph [22]). We consider that the option of provocation should have been made
available to the jury by means of the necessary directions. Further, following the guidance
course for the trial judge to adopt would be to:
“ … communicate that view in court, but outwith the presence of jurors, to counsel,
before they address the jury, indicating that it is proposed to give a direction upon
such an alternative verdict or verdicts. In this way, any possible unfairness may be
avoided” (Ferguson at paragraph [36])”.
[28] We are also satisfied that the lack of directions relating to provocation resulted in a
miscarriage of justice, whether that issue is assessed in terms of the test in McInnes v HM
Advocate 2010 SC (UKSC) 28, 2010 SCCR 296 (“a real possibility that the jury might
SCCR 23 (a more flexible test, as set out in paragraphs 40 to 43). However we accept that
what is in issue in this appeal is not the question of guilt, as the jury rejected self-defence,
but the degree of culpability. Accordingly we accept counsel’s submission that the
appropriate disposal would be to allow the appeal and to substitute for the existing
conviction a conviction in identical terms, but with the rider “under provocation”.
Decision
[29] We grant the appeal against conviction. We quash the conviction, and substitute
therefor a conviction in identical terms but with the rider “under provocation”. To reflect
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the element of provocation, we quash the sentence of 18 months and substitute therefor a
sentence of 16 months.