Brady v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 13 March 1986 |
| Neutral Citation | 1986 SCCR 191 |
| Docket Number | No. 15. |
| Date | 13 March 1986 |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Hunter, Brand.
Evidence—Admissibility—Character evidence—Evidence of specific assaults by complainer on third parties prior to incident libelled against appellant—Whether admissible.
Solemn procedure—Trial—Judge's charge to jury—Judge expressing personal view of equiparation of injuries suffered by appellant and complainer in attempted murder trial in which appellant adhered to special defence of self-defence—Whether misdirection—Whether miscarriage of justice.
Solemn procedure—Trial—Judge's charge to jury—Judge criticising defence counsel for attacking Crown evidence led from police officers without the defence having led contrary evidence—Whether misdirection—Whether miscarriage of justice.
Solemn procedure—Trial—Verdict of jury—Attempted murder "with provocation"—Whether appropriate verdict—Whether proper verdict should have been "assault under provocation".
The appellant was convicted in the High Court of Justiciary at Paisley of attempted murder "under provocation" in a case in which he had pled a special defence of self-defence. In the course of the trial his counsel sought to lead evidence of certain specific acts of violence perpetrated by the complainer on third parties and property sometime prior to the incident libelled in the indictment. The trial judge refused to allow this evidence to be elicited. In the course of his charge to the jury, his Lordship expressed surprise that defence counsel, in the defence submissions to the jury, had tried to equiparate the injuries sustained by the appellant and by the complainer. The trial judge thereafter both forcefully and emphatically expressed his own views upon the comparison between the two sets of injuries. The trial judge also, in the course of his charge, criticised defence counsel for having attacked certain police evidence led by the Crown as being lies without having led evidence in support of these allegations, the appellant not having given any evidence in his own defence. The appellant thereafter appealed to the High Court of Justiciary.
Held, (1) (following, H.M. Advocate v. Irving (1838) 2 Swin. 109 and H.M. Advocate v. Fletcher (1846) Ark. 171) that, the general rule (which applied here) was that it was incompetent to prove the commission of specific acts by the complainer; (2) that, in exceptional circumstances, the court might depart from the strict application of that rule and that that matter lay within the discretion of the trial judge; but (3) (distinguishing H.M. Advocate v. KaySC1970 J.C. 68)that, in the present case, there were no exceptional circumstances which could have justified departure from the general rule; (4) that, a trial judge should always be slow to express his views on questions of fact in case he thereby influences the jury whose task it is to determine all questions of fact; but (5) that, in the present case, although the trial judge went very far indeed in his charge and was within a stone's throw of trespassing upon the province of the jury as masters of the facts, he did not impress his own views on the evidence unduly upon the jury; (6) that, the trial judge having emphasised in his charge that the criticism about not leading evidence in support of the allegations against the police was a criticism against counsel only and not the appellant, his comments on this matter were quite proper; and (7) that, although the jury had been directed by the trial judge that they could return a verdict of guilty under provocation, that was an incompetent verdict in the case of an attempted murder charge so that, to that extent a miscarriage of justice had occurred; and appeal refused but verdict of guilty of assault under provocation substituted.
Opinion, that, in any event, the trial judge might well have been justified in commenting to the jury on the fact that the appellant had not given evidence, instead of confining criticism to that of defence counsel in respect of the allegations against the police.
Joseph Brady was indicted at the instance of the Rt. Hon. The Lord Cameron of Lochbroom, Q.C., Her Majesty's Advocate, the second charge of which set forth that:—"[You did, on 25th January 1985 in the premises of Uplawmoor Hotel at Neilston Road, Uplawmoor] assault Stephen Clark, 18 Aurs Drive, Barrhead, repeatedly punch him on the face and body, strike him on the head with a bottle and repeatedly strike him on the head and body with a hammer or similar instrument all to his severe injury and did attempt to murder him." The pannel having pled not guilty to that charge and having adhered to a special defence of self-defence, the cause came to trial before Lord Cowie and a jury in the High Court of Justiciary at Paisley between 25th and 27th June 1985. On 27th June 1985 the jury returned a verdict of guilty under deletion of the words "repeatedly punch him on the face and body, strike him on the head with a bottle" and "or similar instrument" with the rider of "with provocation" appearing in the shorthand writer's extended notes but not appearing in the clerk of court's minute-book. The appellant thereafter appealed by way of note of appeal against conviction.
In his charge to the jury Lord Cowie stated, inter alia:—"Now, if you were not satisfied that his acting displayed that necessary intent to kill, or that wicked recklessness to which I have referred, then he could not be guilty of attempted murder, but you can still find him guilty of an assault, which is how this charge starts off, with such aggravations on that assault as you think appropriate and have been proved by the evidence led by the Crown. But obviously, he couldn't be guilty of either an assault or attempted murder if the perpetrator of the act was justified in acting in the way he did. And that brings me, ladies and gentlemen, to the defence of self-defence. … Thirdly, and this is a very important qualification in this case, in defending himself the person must not have used means which were cruelly excessive in the circumstances. … Something has been said about provocation, ladies and gentlemen. Now, all I need say about provocation is this: that is not a defence to this charge. If there is any element of provocation in this case and you feel that you would like to say, having—of course on the assumption that you find Mr Brady guilty of these offences or part of it—if you feel that there was provocation here then you can add that as a rider to your verdict of guilty but it is not a defence. … If you opted for self-defence, bearing in mind the qualification which I have pointed out to you, then you must acquit, but if you are only considering provocation that is not a defence, you will still have to find him guilty, even though he was provoked, but you can say, when you return your verdict of guilty, it was under provocation. I would take that into account in deciding what sentence it was necessary for me to pass in this case. … So, ladies and gentlemen, you will consider this, I am sure, but at the same time you will consider such evidence as there is of the alternative account, namely, that Mr Clark was the one who went for Mr Brady in the first instance and the evidence that Mr Brady suffered injuries to his face which did not appear to be entirely consistent with simply punching or kicking because he had a cut over his nose, he had abrasions on the side of his nose, he had a very badly swollen forehead with...
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