Jones v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 01 December 1989 |
| Date | 01 December 1989 |
| Docket Number | No. 27. |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Wylie, Grieve.
Appeal—Additional evidence—Appellant seeking to lead fresh evidence—Whether constituted new evidence or merely change of appellant's trial evidence—Whether evidence could reasonably have been led at trial—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 228.1
Crime—Murder—Self-defence and provocation—Whether require reasonable belief in circumstances to justify use of force—Directions to jury regarding elements justifying plea of self-defence or provocation.
Procedure—Solemn procedure—Trial—Judge's charge to jury—Self-defence and provocation—Trial judge directing jury to determine as a matter of fact whether the deceased victim in a murder trial probably had a knife to establish special defence of self-defence or provocation—No reference by judge to subjective element involved—No evidence from which reasonable jury could infer reasonable belief in necessity for self-defence—Whether misdirection—Whether miscarriage of justice.
The appellant was convicted in the High Court of Justiciary at Glasgow of murder by stabbing the victim on the body and leg with a knife. At the trial diet, the appellant pled not guilty and adhered to a special defence of self-defence. In evidence, the appellant stated that the victim had earlier come to the appellant's house and had threatened him, thus causing the appellant to go out of his house armed with a knife for his own protection. The appellant and his victim met each other in the street and the defence maintained that the victim had challenged the appellant concerning an earlier assault perpetrated by the appellant on the victim's mother; that the appellant pushed the victim and thereafter ran away; and that the appellant had "felt a prick", turned round, and stabbed the victim. The appellant did not state that he had been in fear for his life at the time. The trial judge (Lord Dunpark) directed the jury that, if they were satisfied that the victim did not have a knife, then there could be no question of self-defence; and they could return a verdict of culpable homicide on the ground of provocation only if they thought that the victim might have had a knife and might have struck the first blow.
The knife produced in evidence at the trial was alleged not to be the one which the appellant had used in the stabbing; the knife produced had been handed to the appellant by the dying victim as he lay on the ground. The appellant maintained at judicial examination that he did not know what he
had done with his own knife and that he could not remember whether he had thrown it away or not. At his trial, the appellant maintained that he had used his own knife but had later thrown it away onto a railway embankment. Subsequent to the trial, the appellant recalled that he had stuck the knife in the ground near to a particular path after the stabbing and that that knife had since been recovered. The appellant sought to lead additional evidence in respect of this under sec. 228 (2) of the Criminal Procedure (Scotland) Act 1975. That subsec. provides for the leading of such evidence on the basis that it could not reasonably have been available at trial.Held, (1) that, the additional evidence upon which the appellant wished to found was in direct conflict with his testimony at the trial so that what he was trying to do was to change his evidence; (2) that, additional evidence designed to do this did not constitute evidence which could not reasonably have been available at the trial; and motion to hear additional evidence refused; (3) (approvingOwens v. H.M. AdvocateSC1946 J.C. 119, per Lord Justice-General Normand at p. 125) that, the trial judge's directions on self-defence were inadequate: if the issue of self-defence were to go to the jury they ought to be directed that self-defence was made out when they were satisfied that the appellant believed that he was in imminent danger and that he held that belief on reasonable grounds; but (4) that, although there had been a misdirection in respect of the directions on self-defence, no reasonable jury could have found in this case that there were such reasonable grounds, and the trial judge ought to have withdrawn the issue of self-defence from the jury's consideration; (5) that, accordingly, no miscarriage of justice had occurred in respect of the misdirection on self-defence; but (6) that, the trial judge had misdirected the jury on the question of provocation: the direction given required the jury to determine as a matter of fact whether the victim probably had had a knife and did not recognise that provocation might be proved if the appellant believed that the victim had had a knife and that this belief was not unreasonable (in other words, that the trial judge had failed to direct the jury that the subjective element had to be considered); and (7) that, accordingly, a miscarriage of justice had occurred; and appealallowed, murder conviction quashed and conviction for culpable homicide substituted.
Francis Edward Jones was charged on an indictment at the instance of the Rt. Hon. The Lord Cameron of Lochbroom, Q.C., Her Majesty's Advocate, the libel of which set forth inter aliathat:—"(5) [O]n 23rd September 1988 in the common close at 21 Harcourt Drive [Dennistoun, Glasgow], you did assault Anne Collins or McCormack, …, and did push her, butt her on the face, knock her to the ground and repeatedly kick her on the head and body all to her injury; (6) [on the] date last above libelled, in Ballindalloch Drive, Glasgow, you did assault Ross McCormack, …, and did stab him on the body and leg with a knife and did murder him."
The cause came to trial in the High Court of Justiciary at Glasgow before Lord Dunpark and a jury between 13th and 20th January 1989. On 20th January 1989 the jury, inter alia, by a majority found the pannel guilty on charge (5) under certain deletions and emendations and unanimously found him guilty on charge (6). After having been sentenced, the appellant appealed by way of note of appeal against the conviction on charge (6).
In his charge to the jury, Lord Dunpark stated, inter alia:—"Now, let me deal with the alternative verdict of guilty of culpable homicide, because counsel for the accused submitted to you that Ross McCormack so provoked the accused into knifing him that the verdict should be one—if self-defence is out, and I will come to that later—should be one not of murder, but of culpable homicide. The law on provocation is this. Provocation, unlike self-defence, does not excuse a killing, but when provocation is proved it explains the degree of violence used by the accused, and it may therefore reduce the quality of the crime from that of murder to the crime of culpable homicide, which is just unlawful killing, but without the murderous intent. That would affect the sentence that could be imposed, but that would be my concern, not yours. You have to decide whether there was provocation in the legal sense, which I shall define for you. The essence of provocation is that the conduct of the deceased immediately, and I emphasise immediately—for many acts of the deceased at 21 Harcourt Drive some time previously do not amount to provocation in law which would reduce this killing from murder to culpable homicide—for provocation, the conduct of the deceased immediately before the fatal blow must have been such as to deprive the accused momentarily of his self-control, so that he struck the fatal blow in a fury caused by the provocation, without stopping to think what he was doing. The fact, if you find it to be the fact, that Ross called the accused a bastard or made any other remark or verbal abuse, does not amount to provocation in law which would reduce the killing from murder to culpable homicide. The question in this case is whether you find that the nature and degree of Ross McCormack's conduct towards the accused immediately before this fight started was so provocative as to explain the act of the accused in thrusting a knife into his heart, in the sense that it was not unnatural for a man in the accused's position at that time to lose his self-control to the extent of doing what he did. Now, I think the only possibility of you finding legal provocation in this sense would be if you thought that Ross probably had a knife and drew it first as a threat to the accused; that would be provocation. The advocate-depute submitted, or told you, that there was no provocation if you find that the accused struck the first blow. Now, I tell you that that is not the correct definition of provocation. If you were to find that Ross drew a knife first—although there may be no evidence at all that he did so, except by inference from what the accused said—that would be provocation, although the accused retaliated by drawing his knife. However, who had what knives and when is a question for you to decide, and I don't want to get involved in that, because it is not a question for me. There certainly is some evidence … that each had a knife, but the accused didn't say, according to my note—but that is also a question for you—that he ever saw a knife in Ross's hand until he had stabbed him, and then he said, “Give me the knife,” and Ross, lying on the ground, handed it to him. What the accused said, according to my notes, was that he first shoved Ross away—and I have not got a note of him saying that he saw Ross with a knife at that time—but he turned round and he thought that he felt a prick, presumably from a knife, and stabbed Ross first to the leg, and thereafter he thrust again, which was presumably the fatal blow. I think that was the accused's evidence, but it is a matter for you. Now, the accused does not have to prove that he was first pricked with a knife by Ross for you to find provocation proved. As the onus of proving murder is upon the Crown, the result is, if you are not sure whether or not Ross had a knife and if you are not...
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