James Duffy Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lady Paton,Lady Smith |
| Neutral Citation | [2015] HCJAC 29 |
| Court | High Court of Justiciary |
| Date | 18 March 2015 |
| Docket Number | HCA/14-1783 |
| Published date | 18 March 2015 |
| Year | 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 29
HCA/14-1783/XC
Lady Paton
Lady Smith
Lord Brodie
OPINION OF THE COURT
delivered by LADY PATON
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
JAMES DUFFY
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: CM Mitchell; Paterson Bell, Edinburgh
Respondent: A Brown QC, AD; Crown Agent
18 March 2015
Introduction
[1] On 14 March 2014, after a trial in Glasgow Sheriff Court, the appellant was found guilty by majority verdict of the following offence:
“On 1 April 2012 at Elizabeth Street, Glasgow you … did assault Richard Watson … and did repeatedly strike him on the head and body with a knife or similar instrument to his severe injury, permanent disfigurement and to the danger of his life.”
On 4 April 2014 the appellant was sentenced to an extended sentence of eight years, back-dated to 14 March 2014, comprising a custodial term of five years and an extension period of three years.
[2] The appellant appeals against conviction and sentence.
Grounds of appeal
[3] Three grounds of appeal have passed the sift. The first relates to directions given concerning the evidence of Constable Dick, who stated that the appellant told him that he had “fallen”. The second ground of appeal concerns the lack of directions relating to provocation. The third ground challenges the sentence as excessive.
Circumstances of the offence
[4] The appellant lodged a special defence of self-defence, but did not give evidence. No evidence was led on his behalf. The Crown led evidence, and relied upon (i) the complainer Richard Watson, and (ii) a CCTV recording from a security camera, to provide corroborated evidence of the incident.
[5] The evidence disclosed that on 1 April 2012 the appellant was playing pool in a pub in Elizabeth Street, Glasgow. He had an argument with the complainer concerning the latter’s girlfriend. As the sheriff (Sheriff J K Mitchell) notes in his report at paragraph [26]:
“[The complainer] recollected an argument with the appellant over a pool cue. He had made some comment that the appellant had got beaten at pool by a girl, namely the complainer’s girlfriend. The complainer did not recollect the appellant giving his girlfriend a kiss, as was suggested to him in cross-examination. The complainer accepted that he was up for a fight …”
[6] Both men were asked to leave. The appellant left first. The complainer then left. In his evidence, the complainer stated in terms that it was his intention “to go out and get” the appellant (paragraph [26] of the sheriff’s report). Once outside, the complainer saw the appellant and walked towards him. The appellant for his part walked towards the complainer. They started fighting. Parts of the fight were recorded by the security camera positioned outside the pub.
[7] Initially the complainer, who was employed as a security officer at a jobcentre, appeared to have the upper hand. As the sheriff notes:
“[27] The complainer accepted that, in the course of the fight, he knocked the appellant to the ground and that he repeatedly punched and kicked him to the head and body. The complainer accepted that he weighed 14½ stone and was on top of the appellant. The complainer stated that he was pretty disgusted by his own behaviour …”
[8] At some stage in the struggle, a knife came into the appellant’s hand. The complainer, when giving evidence, was adamant that he did not have a knife with him (sheriff’s report paragraph [26]). The provenance of the knife was never finally established. What was clear, however, was that the only person who used the knife was the appellant: for while the appellant emerged from the fight with considerable bruising, black eyes, a suspected fracture of the right cheekbone, and two small lacerations (one to his right index finger), the complainer, who “ … did not realise that he had been stabbed until his girlfriend started screaming” (sheriff’s report paragraph [27]), was subsequently found to have suffered (i) a 5 cm incised wound to his head; (ii) a laceration to the left side of his face, running from his left eye down his cheek; (iii) a puncture wound to his left ear; and (iv) seven stab wounds to his back, six to the left side (each 1 cm wide), and one to the right side (1.5 cm wide). The complainer’s evidence was that, after the two men separated, the appellant shouted “Look at the state of you now, you fucking daftie” (sheriff’s report paragraph [27]).
[9] The appellant subsequently met Constable Dick. The appellant was “badly bruised to the face and bleeding, with his clothes bloodstained” (sheriff’s report paragraph [18]). According to the officer’s evidence, the appellant said that he had fallen.
Speeches and charge to the jury
[10] In their jury speeches, neither the procurator fiscal nor the defence solicitor mentioned the option of a verdict of guilty under provocation. We were advised that the defence solicitor had taken an understandable tactical decision based on the fact that the jury might not react well to a fallback position, namely “esto the appellant was guilty of assault, he acted under provocation”. It was felt that a straightforward denial of assault, with actions attributable to self-defence, was preferable.
[11] The procurator fiscal, in her jury speech:
“ … referred to the fact that at no stage did the appellant report to the police that he had been assaulted. She made the point that the appellant did not report to the police that he was a victim of a crime of violence when he met PC Dick (sheriff’s report paragraph [19])”
The defence solicitor, in his jury speech, commented that he was surprised that the fiscal had said what she had, and emphasised that the appellant did not need to say anything to the police.
[12] In the course of his charge, the sheriff gave the jury directions inter alia about credibility and reliability (pages 10-13 of the transcript); self-defence (pages 28-33); the sources of evidence which, if accepted, could provide corroborated evidence, namely the complainer’s evidence and the security camera recording (page 38); and at pages 38-43, continued as follows:
“What you’ve got are other surrounding facts and circumstances, which you are entitled to take into account. These individual facts and circumstances are not corroboration. But what they are, are facts and circumstances which, if you accept them, may throw some light on what the proper interpretation is to take from the evidence, whether you should accept Mr Watson’s account as being credible and reliable. And the other facts and circumstances are, some of them are set out in the joint minute.…
When the accused came to … the close in Elizabeth Street where Mr Dick was on duty, he was asked why he was there. And according to Mr Dick’s unchallenged evidence, he said he had fallen. Now, it’s not corroboration of his guilt, but why would the accused say he had fallen to the police officer at 9.20 at night? Why would he do that? Does that assist you in any way in deciding whether the evidence of Mr Watson should be accepted, about what he says happened, and whether his evidence has been corroborated to a sufficient degree to satisfy you beyond reasonable doubt of the accused’s guilt by what you’ve seen on the DVD tapes [the security camera recording], shown to you in court?
These, ladies and gentlemen, are matters for you. If there’s, you accept Mr Watson’s account but you do not accept the interpretation which the procurator fiscal has asked you to place upon Crown Label Number 1, [the security camera recording], then, ladies and gentlemen, there is insufficient evidence in law and you must acquit the accused. The Crown case depends upon you accepting Mr Watson’s evidence and finding it to be supported or confirmed by what is depicted in the DVD, namely, that at the time, …the accused was not acting in self-defence. Mr Paterson [the defence solicitor] has asked you to consider what he has said, that in his submission there points to a compelling reason why you should acquit the accused, and you’ll recollect what was said by him to you just before I started speaking to you.
In the event, ladies and gentlemen, [if] you are left with a reasonable doubt as to the truth of the special defence, or as to the accused’s guilt, then, as I’ve told you, there cannot be any doubt what you must do: you must return a verdict of acquittal.
Ladies and gentlemen, just to be absolutely clear about two further points, Mr Paterson was quite correct to say to you that you cannot draw any inference of guilt from the accused not saying anything to the police. That’s his right. I may be mistaken, but I think what the fiscal was asking you to do was not to draw any inference of guilt from that. She was remarking on the fact that at no time did he suggest that he had been assaulted, or anything. I think that’s the point that was being made. But it is correct to say you cannot draw any inference of guilt from the accused not saying anything to the police. But what the procurator fiscal said to you, ladies and gentlemen, about what he did say to the police, something you are certainly entitled to consider, if you accept the evidence of the constable. Why did the accused say that, and does that thrown any light on your general consideration of the evidence and the conclusions which it is proper to draw on the evidence?
Now, there can be no question, ladies and gentlemen, of corroboration by false denial. In the event that you were to hold that the accused said to the police officer, Mr Dick, that he had fallen, that does not mean that in some way, ladies and gentlemen, his case has changed and you can find some sort of corroboration because he has changed his position. You cannot do that and I want to make that absolutely clear to you. Before you can find the accused guilty, you must accept Mr Watson as a credible and reliable witness. You’re bound to accept what’s in the joint...
To continue reading
Request your trial
-
Black v R
...9 considered Cumberbatch v R (2004) 67 W.I.R. 48 considered Dennis Lobban v The Queen [1995] 1 WLR 877 applied Duffy v H.M. Advocate [2015] HCJAC 29; 2015 S.C.C.R. 205 considered Edmund Gilbert v The Queen, PC Appeal No. 25 of 2005 considered Ferguson v H.M. Advocate [2008] HCJAC 71; 2009......
-
Duncan v HM Advocate
...Lord Menzies and Lord TurnbullNo 2 Duncan and HM Advocate Cases referred to: Brown v HM Advocate 1993 SCCR 382 Duffy v HM Advocate [2015] HCJAC 29; 2015 SCCR 205; 2015 SCL 544; 2015 GWD 11–188 Ferguson v HM Advocate [2008] HCJAC 71; 2009 SLT 67; 2009 SCCR 78; 2009 SCL 250 Graham v HM Advoca......
-
Smith v HM Advocate
...Advocate [2017] HCJAC 78; 2018 SLT 13; 2017 SCCR 571; 2017 SCL 1026 Drury v HM Advocate 2001 SLT 1013; 2001 SCCR 583 Duffy v HM Advocate [2015] HCJAC 29; 2015 SCCR 205; 2015 SCL 544; 2015 GWD 11-188 Duncan v HM Advocate [2018] HCJAC 60; 2019 JC 9; 2018 SCCR 319; 2018 GWD 33-421 Ferguson v H......
-
Appeal Against Conviction By John Murray Copolo Known As Mcintosh And Joanne Mary Ironside Known As Mitchell Against Her Majesty's Advocate
...directions on this issue could be omitted. He referred to the decisions of Ferguson v HM Advocate 2009 SLT 67 and Duffy v HM Advocate [2015] HCJAC 29. [15] Mr Crowe drew our attention to page 12 of the trial judge’s report where he explained that he made a deliberate decision not to give an......