Dines v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Turnbull,Lord Matthews |
| Judgment Date | 13 May 2021 |
| Docket Number | No 24 |
| Court | High Court of Justiciary |
[2021] HCJAC 29
Lord Justice General (Carloway), Lord Turnbull and Lord Matthews
Carr v HM Advocate [2013] HCJAC 87; 2013 SCCR 471; 2013 SCL 752; 2013 GWD 25-489
Crawford v HM Advocate 1950 JC 67; 1950 SLT 279
Duncan v HM Advocate [2018] HCJAC 60; 2019 JC 9; 2018 SCCR 319; 2018 GWD 33-421
Graham v HM Advocate 1987 SCCR 20
Graham v HM Advocate [2018] HCJAC 4; 2018 GWD 2-41
Lawson v HM Advocate [2018] HCJAC 9; 2018 SCCR 76; 2018 GWD 3-50
McGrouther v HM Advocate [2021] HCJAC 5; 2021 SCCR 46; 2021 GWD 5-65
Nelson v HM Advocate [2020] HCJAC 31; 2021 JC 1; 2020 GWD 28-367
Pollock v HM Advocate 1998 SLT 880
SB v HM Advocate [2015] HCJAC 56; 2015 JC 289; 2015 SLT 476; 2015 SCCR 281; 2015 SCL 663
Surman v HM Advocate 1988 SLT 371; 1988 SCCR 93
Telford v HM Advocate [2018] HCJAC 73; 2018 GWD 39-481
Whyte v HM Advocate 1996 JC 187; 1997 SLT 24; 1996 SCCR 575
Justiciary — Procedure — Special defence — Self-defence — Evidence complainer was aggressor in confrontation with appellant — Appellant denial of having deliberately stabbed complainer — Whether judge erred in removing self-defence from jury consideration — Whether miscarriage of justice
Aaron Robert Dines also known as Morrison was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate with, inter alia, a charge of assault to severe injury, permanent disfigurement, and danger of life, and attempted murder. The appellant pled not guilty and the cause came to trial before Lord Beckett and a jury in the High Court of Justiciary at Edinburgh, on 3 November 2020. On 5 November 2020, the appellant was convicted by the jury. He appealed against conviction to their Lordships in the High Court of Justiciary.
The appellant was indicted on, inter alia, a charge of assault to severe injury, permanent disfigurement, and danger of life, and attempted murder. Prior to trial, a special defence of self-defence was lodged. The complainer suffered five wounds with a knife, one of which would have been fatal without medical treatment. When initially spoken to by the police, the appellant stated that he had been acting in self-defence. The appellant gave evidence on his own behalf. In the course of giving evidence, he said that the complainer had a knife in his hand which he held to the appellant's neck. The appellant maintained in evidence that he himself did not have a knife and that he had not stabbed, nor attempted to stab, the complainer. The appellant denied knowledge of how the complainer came by his injuries. At the end of the evidence, counsel for the appellant agreed with the trial judge that self-defence was not an issue for consideration by the jury. Counsel for the appellant addressed the jury in line with the evidence given by the appellant and did not rely upon self-defence. The trial judge directed the jury that self-defence was not an issue for their consideration. The appellant was convicted. He appealed.
The appellant argued that there had been sufficient evidence for the three criteria of self-defence to be made out, that the trial judge had erred by forming a view that self-defence should not go to the jury and by ultimately removing the special defence from their consideration, and that trial counsel's acquiescence was not a cure for the judge's error.
The Crown argued that self-defence could not be made out in the circumstances, given that the appellant had denied stabbing the complainer, and that counsel had not advanced the special defence to the jury and, accordingly, the trial judge had not erred in removing the defence.
Held that: (1) self-defence could not be made out in the case as the use of the complainer's knife to inflict five stab wounds would inevitably have amounted to cruel excess, leaving aside whether there was a reasonable means of escape (para 26); (2) the decision by trial counsel to agree with the trial judge that self-defence was not an issue which could arise on the evidence was one which he was bound to make in the circumstances (para 27); (3) had there been sufficient evidence of self-defence, it would have been open to trial counsel nevertheless not to rely on the special defence because of the tactical considerations (para 28); (4) whether to lodge a notice of special defence and thereafter to continue to rely on it were matters entirely within the province of defence counsel and it would not generally be for the court to intervene and impose a special defence (paras 29, 30); and appeal refused.
Crawford v HM Advocate 1950 JC 67, SB v HM Advocate2015 JC 289 and Duncan v HM Advocate2019 JC 9referred to.
The appeal called before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Turnbull and Lord Matthews, for a hearing, on 13 May 2021.
Eo die, the court refused the appeal for the reasons set forth in the opinion of the Court which was subsequently delivered by Lord Matthews—
Opinion of the Court— [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 eight years, but there is no appeal against sentence.
[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.
[3] A number of matters were agreed by joint minute. Among these were that, following the incident, at...
To continue reading
Request your trial