Andrew Gillon V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Kingarth,Lord Johnston,Lord Philip,Lord Abernethy |
| Judgment Date | 17 August 2006 |
| Neutral Citation | [2006] HCJAC 61 |
| Court | High Court of Justiciary |
| Date | 17 August 2006 |
| Published date | 17 August 2006 |
| Docket Number | XC924/04 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Osborne Lord Abernethy Lord Johnston Lord Philip Lord Kingarth | [2006] HCJAC 61 Appeal No: XC924/04 OPINION OF THE COURTdelivered by LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION by ANDREW URQUHART BLACK GILLON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Jackson, Q.C., J. Barr; Milligan Telford & Morrow, Falkirk
Alt: J. Beckett, Q.C. A.D.; Crown Agent
17 August 2006
The background circumstances
[1] On 15 May 1998, at the High Court at Edinburgh, the appellant was found guilty by a majority verdict on the following charge:
"(5) on 13 January 1998, in a lane between 36 and 38 Balbardie Crescent, Bathgate, you did assault Gary George Allan Johnstone, aged 25 years, 77 Balbardie Avenue, Bathgate and strike him repeatedly on the head, face and body with a spade and you did murder him and you did previously evince malice and ill-will towards him."
The appellant also pled guilty to three other charges on the indictment: charge (1) a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971; charge (3), a contravention of section 5(2) of the Misuse of Drugs Act 1971; and charge (4) a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. On the same date, the trial judge sentenced the appellant to life imprisonment, that sentence to run from 13 January 1998. On 7 October 2002, a punishment part of 14 years was fixed under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended.
[2] The circumstances of the offence to which charge (5) related, as narrated in the trial judge's report, were as follows. The appellant, who was born on 27 January 1968, killed his victim in a lane in a housing estate in Bathgate early in the morning concerned, having been out drinking with him and others in bars in Bathgate the previous evening. It was accepted on behalf of the appellant from the outset of the trial that he had assaulted and killed Gary George Allan Johnstone; the only issue in relation to the charge of murder was whether the appropriate conviction would be one of murder or of culpable homicide. Death was caused by horrendous injuries to the head of the victim inflicted with a spade while he was on the ground; apart from the blow which felled him and caused him to be on the ground. The blows were described in evidence by a pathologist as being of a targeted nature, in that they were delivered to the top of the head, indicative of deliberate targeting of blows with the spade, delivered with maximum force. The only ground upon which a verdict of culpable homicide, rather than murder, was sought was that the killing was carried out under provocation. Evidence of provocation came only from the appellant himself, who gave evidence to the effect that Gary George Allan Johnstone had attempted to strike him with the spade and the two of them had then grappled for it; the appellant had managed to get hold of it and had thereafter attempted to strike the now deceased with the spade. The appellant said in evidence that he remembered no more of what had happened and, in particular, did not remember striking his victim with the spade while he was on the ground. The Crown led evidence to suggest that the appellant had earlier suspected his victim of having caused him to be reported to the police with regard to the events which gave rise to charge (1) in the indictment. That charge arose from a car being stopped in Inverness and the passenger in the car, the appellant, being found in possession of £4,900 worth of cannabis resin in a rucksack, namely 984 grams, and a small quantity of amphetamine. Evidence was also led that the appellant's threats against Gary George Allan Johnstone included the sending to him of Christmas cards suggesting that the forthcoming New Year would be his last. There was also evidence that subsequently the appellant had discovered that Gary George Allan Johnstone had not been responsible for reporting him to the police. Accordingly, the significance or lack of significance of this aspect of the matter in the attack on the night concerned was not clear. In pleading guilty to the offences involved in charges (1) and (3) in particular, it was accepted that the appellant himself had been a drug user for many years. Despite what had been said in the social enquiry report available to the trial judge, there was no evidence at the trial that Gary George Allan Johnstone had been involved with controlled drugs. So far as the evidence at the trial was concerned, the appellant's motive for what he had done was not clearly established. There was some evidence that the appellant owed Gary George Allan Johnstone £2,100, but the evidence about that was not clear.
[3] On 14 February 2005, the appellant lodged a note of appeal against conviction containing a number of grounds. These were in the following terms:
"(1) There has been a miscarriage of justice in respect that-
(a) the learned trial judge misdirected the jury at page 11, lines 21-24 of his charge in that he gave inadequate and incomplete directions as to the mens rea required for the crime of assault by failing to direct the jury that evil intent is of the essence of the crime.
(b) The learned trial judge misdirected the jury at page 12, lines 5-21, and page 15, lines 12-17, of his charge in that he gave inadequate and incomplete directions as to the mens rea required for the crime of murder by failing to direct the jury that a wicked intention to kill or wicked recklessness as to the consequences is of the essence of the crime (Drury v H.M. Advocate 2001 S.C.C.R. 583).
(c) The learned trial judge directed the jury at page 16, et seq., of his charge as to the law of provocation. Said directions do not explain that the essence of the plea is the absence of wicked intent to kill or wicked recklessness as to the consequences (Drury v H.M. Advocate, supra).
(d) The effect of the directions at (a), (b) and (c), supra, is that the jury did not specifically require to determine when considering the issue of provocation, whether if they accepted that the [appellant] acted under provocation but nevertheless concluded, having regard to the manner, number and nature of the injuries inflicted upon the deceased, that intention to kill or recklessness as to the consequences was proved, they were satisfied that the appellant acted wickedly when he killed the deceased. The jury should have been specifically directed to make such a determination when considering the issue of provocation and the failure to do so amounts to a miscarriage of justice and the conviction should be quashed.
(e) Separatim, the learned trial judge misdirected the jury at pages 17, et seq., of his charge, that for provocation to reduce what would otherwise be a conviction for murder to culpable homicide one of the three requirements they must be satisfied about was that the appellant's retaliation must be (sic) a reasonable relationship, and not be grossly disproportionate, to what provoked the retaliation. The learned trial judge should have directed the jury that evidence relating to provocation in general, and proportionality between provocation and retaliation in particular, were simply factors which the jury should take into account in performing their general task of determining the appellant's state of mind (i.e. in determining whether he had a wicked intent to kill or was wickedly reckless as to consequences) at the time when he killed the deceased. The failure to so direct the jury amounts to a miscarriage of justice and the conviction should be quashed.
(f) Separatim, the learned trial judge at pages 22, 23 ad 24 (in particular at lines 7-15 of page 24) of his charge gave undue prominence, emphasis and weight to the Crown's submission that the appellant's retaliation was grossly disproportionate to the deceased's provocation such that the appellant's plea of provocation was excluded and that the only proper verdict was one of murder. The giving of such prominence to the Crown's submissions amounts to a miscarriage of justice and the conviction should be quashed."
Having regard to the date of the lodging of the note of appeal against conviction, 11 February 2005, and to the date of death of the trial judge shortly thereafter on 7 March 2005, no report is available from him in response to these grounds of appeal. Leave to appeal has been granted.
[4] On 29 September 2005, the Court, on the motion of counsel for the appellant, remitted the appeal to a bench of five judges on the basis, described in the interlocutor of that date, of "the issues, inter alia, of proportionality and provocation, in the light of the Opinions of the Court in Drury v H.M. Advocate ...". In an opinion delivered in association with the interlocutor on 29 September 2005, the Court observed of the trial judge's directions in regard to provocation:
"It is not in doubt that these directions, and in particular in regard to the third requirement, were in accordance with the law relating to provocation as it was then understood. In Robertson v H.M. Advocate 1994 S.C.C.R. 589 Lord Justice Clerk Ross stated at page 593F:
'It is by now well established that loss of control is not the only element in provocation. Although provocation does involve the loss of control, there must be a reasonably proportionate relationship between the violent conduct offered by the victim and the reaction of the accused.'
In this appeal it is maintained that the trial judge misdirected the jury in respect that he should have directed them that evidence relating to provocation, and proportionality between provocation and retaliation in particular, were simply factors which the jury should take into account in performing their general task of determining whether the appellant had a wicked intent to kill or was wickedly reckless as to the consequences at the time when he killed the victim.
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Analysis
...(2007) 190-192. The High Court had the opportunity to revisit its analysis in another Full Bench decision, Gillon v HM Advocate,12122007 JC 24. the focus of which was also provocation. But despite the barrage of academic criticism that followed Drury,1313Aside from those sources already not......