Duncan v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Menzies,Lord Turnbull |
| Judgment Date | 19 September 2018 |
| Neutral Citation | [2018] HCJAC 60 |
| Docket Number | No 2 |
| Court | High Court of Justiciary |
| Date | 19 September 2018 |
[2018] HCJAC 60
Lord Justice-General (Carloway), Lord Menzies and Lord Turnbull
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 Advocate [2018] HCJAC 4; 2018 GWD 2–41
Hobbins v HM Advocate 1997 SLT 428; 1996 SCCR 637
Johnston v HM Advocate 1998 SLT 788; 1997 SCCR 568
Mackay v HM Advocate [2008] HCJAC 16; 2008 SCCR 371; 2008 SCL 628; 2008 GWD 10–182
R v Coutts [2006] UKHL 39; [2006] 1 WLR 2154; [2006] 4 All ER 353; [2007] 1 Cr App R 6; The Times, 24 July 2006; The Independent, 21 July 2006; [2006] Crim LR 1065; 156 NLJ 1213; 150 SJLB 984
Steele v HM Advocate 1992 JC 1; 1992 SLT 847; 1992 SCCR 30; The Times, 31 October 1991
Templeton v HM Advocate 1961 JC 62; 1961 SLT 328; [1961] Crim LR 720
Justiciary — Procedure — Charge to jury — Misdirection by omission — Provocation not raised by defence in jury speech or in judge's charge — Whether miscarriage of justice
Ashley Duncan was charged, with two co-accused, on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, the libel of which set forth, inter alia, a charge of attempted murder. The appellant pled not guilty and the cause came to trial before Lady Scott and a jury at the High Court of Justiciary in Aberdeen. On 7 September 2017, the appellant was convicted. On 3 October 2017, the appellant was sentenced to a period of six years' imprisonment. The appellant appealed against conviction to their Lordships in the High Court of Justiciary.
The appellant, along with two co-accused, was tried on a charge of attempted murder. The Crown case was that the complainer and all three accused had been together at another's home, that the complainer had been “play fighting” with the two co-accused, that the complainer had then gone to sleep on a sofa, and that later he was attacked by all three accused as he lay there. The appellant did not give evidence. Evidence was led of the appellant's various and contradictory statements to the police. The appellant told the police that the complainer had appeared with a knife, had fought with a co-accused and had assaulted her. The appellant also said that she had fought with the complainer. But at other points she denied hitting or punching the complainer and, in reply to her caution and charge, said she had not touched the complainer. The appellant's case was that the Crown had not proved her involvement in the assault. Provocation was not referred to either in the defence counsel's jury speech or in the judge's charge. All three accused were convicted. The appellant appealed on the ground that a direction on provocation ought to have been given by the trial judge where provocation could be inferred from the circumstances described in her statements to the police.
Held that: (1) as a general principle, a trial judge should charge the jury on verdicts in accordance with the manner in which the case had been presented by the parties (paras 18, 27); (2) a trial judge ought to present an alternative verdict which had not been canvassed by the parties only where it was obviously open to the jury on the evidence and the public interest necessitated that the direction be given notwithstanding any unfairness that might thereby ensue (paras 27–29); (3) in the present case, no direction was required where a verdict of assault based upon provocation was not an obvious one and where a direction had the potential to undermine the defence advanced by the appellant (paras 29, 30); and appeal refused.
Ferguson v HM Advocate 2009 SLT 67 and Mackay v HM Advocate2008 SCCR 371explained, Templeton v HM Advocate1961 JC 62applied and R v Coutts[2006] 1 WLR 2154followed.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), Lord Menzies and Lord Turnbull, for a hearing, on 19 September 2018.
Eo die the court refused the appeal for the reasons set forth in the opinion of the Court which was subsequently delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[1] This appeal raised a question of whether, in a trial for attempted murder, the judge ought to have directed the jury on provocation in circumstances in which the appellant had not given evidence that she had been provoked and the defence advanced on her behalf had been that the evidence was insufficiently credible and reliable to demonstrate that she had been involved in the assault at all. The contention was that provocation could be inferred from circumstances described by the appellant to the police and that, in terms of Ferguson v HM Advocate, a direction required to be given.
[2] On 7 September 2017, at the High Court in Aberdeen, the appellant was convicted of a charge which libelled that:
‘(7) On [Sunday] 22 May 2016 at 28 Auldearn Place, Aberdeen you MATTHEW DONALDSON, LEE HUTCHISON and ASHLEY DUNCAN did, whilst acting together assault Jordan Jones … and did repeatedly punch and kick him on the head and body, brandish a knife at him, seize hold of him, stamp on his head and body, all to his severe injury, permanent disfigurement and to the danger of his life and did attempt to murder said Jordan Jones and did previously evince malice and ill-will towards him’.
[3] The co-accused were found guilty of the same charge. On 3 October 2017, the appellant was sentenced to six years' imprisonment. Mr Donaldson was sentenced to seven years and Mr Hutchison to eight years; both co-accused having been convicted of other charges for which separate sentences were imposed.
[4] The trial judge reports that there was a background of animosity between Mr Hutchison and the complainer. This related to their respective relationships with Amy Spalding, who lived at a flat at Auldearn Place. The main evidence about what had happened at the locus came from two witnesses, namely Ms Spalding and Jodie Skinner. The three accused and the complainer had all been in Ms Spalding's flat. The complainer had been ‘play fighting’ with the two male accused in the kitchen. The appellant had been in the living room. The fighting had grown more aggressive, but then calmed down. The complainer had gone into the living room, where he lay down on a sofa and went to sleep.
[5] Ms Skinner gave evidence that the two male accused had come from the kitchen and began attacking the complainer as he lay on the sofa. They were kicking him. The appellant had then joined in and punched and kicked the complainer. She had punched him four or five times. All three accused had run out of the flat...
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