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NOTE OF APPEAL AGAINST CONVICTION BY AARON ROBERT DINES KNOWN AS MORRISON AGAINST HER MAJESTY'S ADVOCATE [2021] ScotHC HCJAC_29 (13 May 2021)
URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_29.html
Cite as:
[2021] HCJAC 29,
2021 GWD 19-265,
2021 SCCR 197,
[2021] ScotHC HCJAC_29,
2021 JC 219
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 29
HCA/2020/335/XC
Lord Justice General
Lord Turnbull
Lord Matthews
OPINION OF THE COURT
delivered by LORD MATTHEWS
in
NOTE OF APPEAL AGAINST CONVICTION
by
AARON ROBERT DINES KNOWN AS MORRISON
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: C Findlater; Murray Ormiston LLP, Aberdeen
Respondent: G Jessop AD (sol adv); the Crown Agent
13 May 2021
[1]
On 5 November 2020, at the High Court of Justiciary sitting in Edinburgh, the
appellant was found guilty, after trial, of a charge narrating that he assaulted MDN and
repeatedly struck him on the body with a knife to his severe injury, permanent
disfigurement and to the danger of his life and that he attempted to murder him. He was
sentenced to imprisonment for 8 years, but there is no appeal against sentence.
2
[2]
There is, however, an appeal against conviction and it raises a short point. It is
submitted that the trial judge erred in removing the appellant's special defence of self-
defence from the jury's consideration. It is said that there was some evidence from which
self-defence could have been made out. Even if this is so, the appellant faces two major
hurdles. These are that, during his own evidence, he denied that he had used a knife or
stabbed the complainer, which is the only narrative of how the assault took place and
secondly that when the trial judge raised the question of self-defence after evidence and
before speeches, the appellant's counsel agreed that it did not arise. Notwithstanding this, it
is submitted that a case for self-defence could have been made out on the basis of a jigsaw,
using pieces of evidence from other witnesses in the case and that the judge made an error
of law.
The evidence
[3]
A number of matters were agreed by joint minute. Amongst these were that,
following the incident, at a play park, the complainer had three stab wounds to his
abdomen, one to his left thigh and one to his right hand. One of the stab wounds to the
abdomen had penetrated the large bowel and was repaired at surgery. The other stab
wounds to the body and thigh were closed with stitches and the hand wound was dressed
without being stitched. Without treatment, the injury to the bowel would have caused
death. There will be permanent disfigurement, with scars at the sites of the wounds.
[4]
When the appellant was arrested on suspicion of the attempted murder of the
complainer, he struggled with the police and stated: "It was me getting stabbed and it was
just self-defence."
3
[5]
A witness DK had been with the complainer and another individual. They were all
addicted to crack cocaine, which they had been looking to buy from the appellant when they
went to the play park, where they met him. The complainer began grabbing at the appellant
with his hands, trying to take drugs from him. A confrontation developed, with the
appellant backing away. The complainer appeared to be the aggressor and punched the
appellant to the body. With reference to his police statement, the witness said that the
complainer had asked the appellant for money he owed him. His first position was that he
saw a blue handle in the appellant's hand, but no more than that. The appellant was
moving his hands around and backing off. The complainer then ran way and turned out to
be badly injured. The evidence of the witness then came to be that, with his right hand, the
appellant had pulled out, from somewhere on his person, a breadknife with a blue handle.
He saw a fight between the two, with the appellant defending himself. He saw movements
by the appellant's arms towards the complainer's torso and the top of his legs, where stab
wounds had been found. There was a set-to back and forth. While the appellant was in
possession of the knife, he made a lunge for the complainer, but the witness could not say
that he ever actually saw him stabbing the complainer. While he watched the struggle, he
heard the complainer shout: "I've been stabbed".
[6]
Another witness, TR, was unfit to attend court and his statement was read out, using
the provisions of section 259 of the 1995 Act. He had been in the park that night looking for
drugs from the appellant. He said that the complainer and the appellant started arguing
about something. He went on:
"The argument started getting more heated where Tubz (the complainer's nickname)
tried to grab Aaron by the mouth and he punched him to the face. They both then
started rolling about the ground fighting. Tubz appeared to be fine before all this
happened. During the roll around on the floor I noticed Aaron swing his arm
towards the body of Tubz. It just looked like he was punching him. I never noticed
4
anything in his hands. I heard Tubz screaming and then him shout: `I've been
fucking stabbed'."
[7]
The appellant had lodged a special defence of self-defence, the operative part of that
being that "on the occasion libelled he was acting in self-defence, he having been assaulted
by the said (complainer)".
[8]
In his evidence, the appellant denied that he had been selling drugs, maintaining that
the complainer was a drug dealer. He said he had been begging in the streets for money to
buy drugs and went to the park to buy them there. He had seen the complainer and his two
companions, but sought to avoid them as he had had trouble with the complainer before.
The complainer attacked him, grabbed him and was demanding money, which the appellant
owed him for drugs. Then the complainer punched him three times and he put his hands
up to defend himself. He saw that the complainer had a knife in his hand when the third
punch was thrown. The complainer held it at the appellant's neck. The appellant tried to
run, but the complainer grabbed him and they ended up rolling on the ground. He was
struggling to keep the knife, which was still at his neck, away from him. They were rolling
around for about 3 minutes before a woman shouted, "Get him", at which he had managed
to slither away from the complainer and escape. He ran home and discovered that he had
been cut on his right hand, but he had not wanted to go to the police. He did not have a
knife with him, he did not attempt to stab the complainer deliberately and he did not
attempt to murder him.
[9]
In cross-examination, he said he did not know how the complainer had come by his
injuries, but he had not caused them and only the complainer had had a knife. He was
adamant that he did not stab him.
5
[10]
In his report, the trial judge tells us that he raised with defence counsel whether he
maintained that there was any basis for self-defence and/or provocation. We need not
concern ourselves with provocation. Counsel agreed that there was no basis for self-
defence, as the minute for 5 November records. The judge expected counsel to withdraw the
special defence in his speech, but he did not. Rather than causing delay by disconnecting
the jury and reminding him about it, he decided simply to direct the jury that self-defence
was not an issue for consideration.
[11]
The judge was aware that withdrawing a special defence was a strong step. It was
his duty to direct the jury that it was not open to them to consider it if there was no evidence
from which the requisite conclusion could reasonably be drawn. If, on the other hand, there
was some evidence, although it might be slight, or even evidence about which two
reasonable views might be held, then the duty of a judge is to leave the special defence to the
jury, subject to such directions as the judge may think proper (see Crawford v HM Advocate
1950 JC 67). This approach has been approved of in a number of cases, such as Carr v HM
[12]
In his report, the judge refers to Whyte v HM Advocate 1996 JC 187, Carr, and Lawson v
HM Advocate 2018 SCCR 76, where this issue was considered. As he points out, there is no
suggestion in those cases that the defence representative in the trials conceded that self-
defence could not arise.
[13]
Telford v HM Advocate [2018] HCJAC 73 was a recent example where it was correct to
withdraw self-defence because the three criteria necessary for the plea could not be met on
the evidence. The judge points out that, in this case, while the question of the appellant
being the subject of an attack is addressed in the grounds of appeal, the other two are not,
namely no reasonable means of escape and no cruel excess, although these were addressed
6
in submissions. Furthermore, in none of the cases did the accused give evidence to say that
he had not performed any part of the action which was the only modus of the assault.
[14]
Counsel knew that the judge was not going to leave self-defence before the jury and
did not attempt to persuade him that he should. His jury speech presented the defence on
the basis of the appellant's denial that he had stabbed the complainer deliberately. The
judge did not consider that there was evidence capable of meeting all three of the criteria for
self-defence, in particular being of the view that it could not be said that the retaliation was
not excessive. He also considered that giving directions on self-defence would undermine
the speech of defence counsel. In addition, the appellant did not even say that he could not
get away. On his own account he had managed to do so. If the hypothesis was that the
appellant had disarmed the complainer and then stabbed him five times, such actions would
inevitably be cruelly excessive.
Submissions
Appellant
[15]
In reliance on the appellant's comment to the police and the evidence of the two
civilian witnesses, to the effect that the complainer was the party who first used violence, it
was suggested that there was support for the first leg of the test. There was a continuing
attack on the appellant by the complainer. The evidence of the appellant backing away from
the aggressive complainer and failing to get away from him until the end, when he was able
to slither away, could allow a jury to be satisfied that violence was used as a last resort. The
means of escape were removed once the complainer began struggling with the appellant,
including grabbing him by the neck.
7
[16]
As far as cruel excess was concerned, the appellant spoke to the complainer having a
knife. Only one of the five injuries sustained by the complainer was of any particular
gravity. Cruel excess was a matter to be left to the jury.
[17]
While the appellant had denied stabbing the complainer deliberately and that he had
ever had a knife, the jury could nonetheless have held, as they did, that he had a knife and
had deliberately stabbed the complainer. Using the other evidence in the case, which was
consistent with self-defence, such as the appellant's remark to the police, the jury could have
held that the criteria were met.
[18]
Reference was made to a number of cases, such as McGrouther v HM Advocate 2021
SCCR 46, Graham v HM Advocate 1987 SCCR 20, and particularly Surman v HM Advocate 1988
SCCR 93. In that case the appellant had given evidence that he was defending himself in a
struggle with the deceased, but that he was unaware of stabbing him. He agreed with the
suggestion that the stab wounds must have been inflicted accidentally. There was no
question of the deceased being armed but, according to the appellant, he was trying to
throttle him with his hands. In the opinion of the court, it was for the jury to determine
whether the appellant was acting in self-defence or whether his evidence was sufficient to
raise in their minds a reasonable doubt as to whether the Crown had established its case.
The trial judge was wrong in taking the defence of self-defence away from the jury. For
other reasons, there was no miscarriage of justice in that case. It is noteworthy that in that
case the stabbing was not the only modus of assault charged.
[19]
Counsel also referred to the cases of Whyte and of Graham v HM Advocate
[2018] HCJAC 4, although the relevance of that latter case is not immediately apparent.
[20]
If the court were not with him, counsel recognised that the appeal could not succeed.
However, assuming his submissions found favour, the court would require to consider
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whether a miscarriage of justice had resulted, given the appellant's evidence and the fact
that counsel had agreed that self-defence was no longer an issue.
[21]
Counsel's agreement was an error. However, this was not a case where it was
appropriate to base an appeal on defective representation. The error arose because the lack
of a basis for self-defence had been raised, in error, by the trial judge and that had infected
what happened thereafter. Therefore the judge had raised the point because he obviously
had a preliminary view that self-defence should not go to the jury. It was speculative to try
to work out what might have happened had counsel insisted on the special defence. The
judge's intervention was the point at which the case went off the rails.
[22]
The case could be distinguished from SB v HM Advocate 2015 JC 289. In that case,
and in cases such as Duncan v HM Advocate [2019] JC 9 and Nelson v HM Advocate
[2020] HCJAC 31, the ground of appeal being advanced was one of misdirection in circumstances
where parties had not advanced a particular line, or specifically disavowed a particular line,
and on appeal it was contended that such an omission represented a miscarriage of justice.
That was not the position here. The special defence had been removed by the trial judge.
Where a defence appeared to be available on the evidence, generally the trial judge should
provide directions on it. Self-defence could have been made out on the evidence led in this
case. The defence had proceeded on the basis of this throughout the trial. It was only when
the judge raised the issue that counsel agreed there was no basis for it. At paragraph [28] of
his report, the judge said that:
"[Trial counsel] knew that I was not going to leave self-defence before the jury and
made no attempt to persuade me that I should."
9
That was where the error of law and the miscarriage of justice arose. The trial counsel's
acquiescence was not a cure for the judge's error. In any event, even if SB did apply, this
was one of those exceptional cases where the judge should not have withdrawn the defence.
Crown
[23]
Under reference to Pollock v HM Advocate 1998 SLT 880, the advocate depute
submitted that it could not be argued that all three criteria were made out. Pollock was a
case where there was obviously cruel excess. So was the instant case. There had been no
suggestion that the appellant could not get away. He had slithered free and run off.
[24]
While it was clear from Crawford and such cases that the court had to be cautious in
withdrawing a special defence, this was a case where it was appropriate.
[25]
Leaving all that aside, counsel had agreed that there was no basis for it. The only
conduct libelled was the act of stabbing the complainer repeatedly with a knife and the
appellant had said that he did not do that. That being so, there was no basis for a special
defence of self-defence and the judge was correct in raising the issue. Counsel could not
advance the special defence given that evidence. SB was in point. Reference was also made
to McGrouther v HM Advocate and Duncan. The obligation on the court was to charge in
accordance with the way parties conducted the case, unless it was obvious that a particular
direction had to be given. The question was one of fairness. As was pointed out at
paragraph [28] in Duncan, situations where the court charged a jury otherwise than in
accordance with the way the parties conducted the case ought to be rare.
Analysis
[26]
The proposition, derived from cases such as Crawford, that special defences ought not
10
to be withdrawn if there is any reasonable basis in the evidence for them, is non-
controversial. By navigating a torturous path within the evidence in this case, there might
have been a basis for the jury to hold that the complainer had a knife (the appellant's own
evidence) and that the appellant was acting, as he put it to the police, in self-defence in a
general sense. There was a basis in the evidence of the two civilian witnesses, that the
complainer attacked the appellant. There was no suggestion in the evidence that there were
ever two knives on the scene. The only knife which was seen was that which the witnesses
said they saw in the possession of the appellant. If the hypothesis is that he used the
complainer's knife to inflict the five wounds then, inevitably, that would have amounted to
cruel excess, leaving aside the question whether or not he might have been able, reasonably,
to make his escape. The various cases referred to in argument turned on their own facts and
on the terms of the charges.
[27]
The more fundamental problems for the appellant are the nature of his own evidence
and the agreement by his counsel that the issue of self-defence could not arise on the
evidence. There is no foundation for any suggestion, nor indeed was it suggested, that
counsel was put under any pressure to make this concession. In any event, in our opinion,
standing the state of the evidence, not only was counsel's approach reasonable in the
circumstances, it was the only approach which he could realistically and responsibly take.
The only criminality alleged against the appellant was his use of the knife. In his evidence
he denied using a knife. There was no basis on which counsel could have effectively
discarded that evidence and proceeded on the basis that the jury should consider self-
defence, even on an esto basis. Had there been sufficient other evidence supporting self-
defence, counsel might have had a difficult practical choice to make. If the position of the
accused in such a case were that he denied the use of the weapon and denied committing the
11
assault at all, reference to a provisional defence might well have been seen to be
undermining the accused's position and could easily lead to a jury thinking the defence
wanted to have its cake and eat it. There being no evidence capable of fulfilling the three
criteria for self-defence in the instant case, however, there was no tactical decision for
counsel to make. The decision to agree that there was no issue of self-defence was one
which he was bound to make in the circumstances.
[28]
We observe that if there had been sufficient evidence of self-defence it would have
been open to counsel nonetheless, standing the appellant's evidence, to decide not to rely on
the special defence, because of the tactical considerations outlined above.
[29]
Even in such a case, it would not generally be for the court to intervene and impose a
special defence of self-defence or any other special defence on the accused. However, that is
not this case. The trial judge quite properly raised the issue and counsel quite properly
indicated that he would not be relying on the special defence. There was no need for him to
use any particular form of words in withdrawing the special defence. An indication to the
trial judge that that was his position was quite sufficient. The judge made no error. He did
not in fact make any operative decision at all, although we know what his views on the
matter were. All he did was give effect to the concession made by counsel. Had he carried
on regardless of this and addressed the jury on self-defence he would have risked
undermining the position adopted by counsel. Cf Duncan at para [30].
[30]
Whether or not to lodge a notice of special defence in the first place and thereafter
whether or not to continue to rely on it, are matters entirely within the province of defence
counsel. If they choose no longer to rely on such a defence, as happened here, then the
circumstances envisaged in SB arise. The Lord Justice Clerk, as he then was, delivering the
Opinion of the Court said the following at paras [34] and [35]:
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"[34] The responsibility for giving correct directions on the law to a jury rests
firmly with the trial judge. Where a defence appears to be available on the evidence,
it will generally be incumbent upon the judge to provide the jury with adequate
directions on the nature of the defence. A failure to do so may result in an accused
person being found guilty of a greater offence, or even simply an offence, of which
he should not have been convicted. This was part of the rationale in Ferguson v HM
para 12). The issue there was determined on the basis that it had been unfair to the
appellant, who had been charged with murder, to omit directing the jury on the
alternative verdict of culpable homicide, even although neither the Crown nor the
appellant had raised the possibility of such a verdict.
[35]
It is important not to extend the ratio in Ferguson beyond its parameters. It is
one thing for an accused not to refer specifically to an available defence in a jury
speech. It is quite another for the accused to state specifically to the court that a
particular defence is not being advanced. In the latter situation, there may still be
occasions in which the court may nevertheless decide to leave such a defence for the
jury's consideration. The normal position, however, will be that the court should
accept the concession and direct the jury accordingly. It will only be in quite
exceptional circumstances that such a course could be regarded as resulting in an
unfair trial."
[31]
There are no such exceptional circumstances in this case. It follows that the appeal
must be refused.
