Appeal Against Conviction By John Murray Copolo Known As Mcintosh And Joanne Mary Ironside Known As Mitchell Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Bracadale,Lord Turnbull |
| Judgment Date | 02 December 2016 |
| Neutral Citation | [2016] HCJAC 119 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2016 |
| Date | 02 December 2016 |
| Published date | 02 December 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 119
HCA/2016/000177/XC
HCA/2016/000179/XC
Lord Menzies
Lord Bracadale
Lord Turnbull
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL AGAINST CONVICTION
by
JOHN MURRAY COPOLO known as McINTOSH
and JOANNE MARY IRONSIDE known as MITCHELL
Appellants
against
HER MAJESTY’S ADVOCATE
Respondents
First Appellant: Crowe; Faculty Services Ltd Edinburgh
Second Appellant: Moggach; Burns & McGregor Aberdeen
Respondent: Harper, AD; Crown Agent
2 December 2016
Introduction
[1] The appellants John Copolo, known as McIntosh and Joanne Mary Ironside, known as Mitchell, the first and second appellants respectively, were indicted for trial in the High Court at Edinburgh in March 2016. They each faced a charge of attempted murder in identical terms and the second appellant additionally faced a charge of attempting to pervert the course of justice.
[2] The first appellant was convicted in the following terms:
“On 20 July 2015 at Dill Road, Aberdeen you did assault Daniel Main and repeatedly strike him on his head and body with a hammer and pull him by his hair, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and you did attempt to murder him.”
The charge as presented to the jury contained further averments of striking the victim with a piece of wood, repeatedly pushing him on the body, punching and kicking him on the head and body and rifling through his pockets and robbing him of a cheque, medication and £20 of money. These averments were all deleted in the verdict returned.
[3] The case as presented by the Crown was that the first appellant was responsible for an attack on the complainer with a hammer and that the second appellant was acting in concert with him. The second appellant was convicted in the same terms as the first but with the additional deletion in her case of the averment of attempt to murder. The second appellant was also convicted of the charge of attempting to pervert the course of justice.
The evidence for the Crown
[4] The trial judge summarised the evidence led at trial in his report to this court. He explained that the incident arose out of a dispute over drugs which had been obtained by the complainer from the second appellant, who was the partner of the first appellant. All three knew each other. The complainer was unhappy with the quality of the items supplied to him and he returned to the locus, which was near to where the two appellants lived, to remonstrate with the second appellant. He telephoned her in advance to say that he was coming to see them. All three met at Dill Road. At that time the first appellant was walking with the assistance of crutches. The incident which formed the basis of the charge then took place. There was a dispute on the evidence as to how it occurred.
[5] The complainer’s evidence was that there was a confrontation which began with a heated argument involving a scuffle between the three. He explained that the second appellant was then ready to start fighting and was being aggressive. She made a dive at him to which he responded by pushing her back and also pushing the first appellant, causing him to fall to the ground. He explained that the second appellant then distracted him by taking his push bike and making it look as if she was going to steal it. This diverted his attention from what the first appellant was doing and the next thing he knew was that he was lying on the ground with the first appellant standing over him with a big hammer in his hand hitting him on the head. He thought he was hit around four times on the head and also on the body. He did not know how many times he was hit altogether. The incident came to an end when the second appellant said: “that’s enough” and the two walked away together. The second appellant threw the complainer’s mobile phone back towards him as they left.
[6] The complainer denied the suggestions made to him in cross examination that he had armed himself with a stick or a baseball bat and that he had struck the first appellant with a hammer. He denied that he had been the one in possession of a hammer and that in the course of the struggle the first appellant had taken it from him and struck him with it.
[7] The only other evidence led by the Crown concerning the circumstances of the offence came from a lady Kelly Duthie and her daughter Alannah, each of whom had a view of some of what took place from the window of a nearby property. Kelly Duthie saw a lady with blood on her face standing close to a man on the ground and another man who was standing over the person on the ground hitting him with blows directed towards his face and head with something that looked like a hammer. She thought that he hit him more than 10 times. She telephoned the police and during the course of that conversation was able to recognise the first and second appellants as the two involved with the man on the ground. In evidence she said that the second appellant was not doing anything at the time.
[8] In her evidence Alannah Duthie testified that she saw the second appellant strike the complainer with a piece of wood and saw the first appellant hitting him with a hammer.
[9] The medical evidence demonstrated that when taken to the intensive care unit of Aberdeen Royal Infirmary the complainer was found to have six or more semi-circular injuries to his head consistent with having been hit by a hammer, as well as injuries to his wrist, forearm, shoulder and chest. The blows to his head had resulted in a depressed fracture to the skull pushing down towards the brain which evidenced the use of considerable force in administering the blows.
The defence evidence
[10] The first appellant had intimated a special defence of self-defence prior to the commencement of the trial and gave evidence on his own behalf. The second appellant did not.
[11] The first appellant’s evidence was summarised for us by the trial judge at pages 10 and 11 of his report. His evidence was that he had been told by the second appellant that the complainer had telephoned her calling her names and accusing her of ripping him off. He hoped to avoid meeting with the complainer by going elsewhere but as he and the second appellant left their home the complainer was waiting for them at the end of the street. The first appellant’s evidence was that he was not armed with anything. On meeting up with the complainer he became argumentative. The complainer took out a baseball style bat and hit him twice on the head with it. He was unable to escape as he was on crutches at the time. The complainer then struck the second appellant on the head with the same bat causing her to collapse to the ground. The next thing he knew the complainer was on his back holding a hammer and trying to hit him. There was then a scuffle in the course of which the first appellant tried to get the hammer from the complainer and they fell to the ground each holding onto it. He shouted to the second appellant to help whereupon she came over and helped to pull the complainer away. The complainer then got up and turned towards the second appellant. At this point the first appellant had hold of the hammer. He pulled himself up and hit the complainer with it. It all happened really quickly and the complainer fell to the ground. His evidence was that the only time he was standing above him was after he had hit him. The first appellant explained that he struck the complainer out of fear as to what he would do to them with the hammer. He admitted hitting the complainer four times with the hammer and explained that Ms Duthie and her daughter had not seen the start of the events.
[12] In his charge the trial judge gave directions on self-defence and on concert, none of which were criticised. The issue of provocation was not mentioned in any of the closing speeches and no directions on the subject were given.
Leave to appeal
[13] Leave to appeal against conviction was granted in respect of the first appellant on a single ground which submitted that the trial judge had misdirected the jury by failing to give directions on the issue of provocation. In respect of the second appellant leave to appeal was granted on a single ground which submitted that in light of the verdict returned it was clear that the jury had failed to follow the directions which they had been given by the trial judge and had returned a verdict which they were not entitled to return.
Submissions
First appellant
[14] Of behalf of the first appellant, Mr Crowe, who had appeared for him at trial, explained that he had made a tactical decision not to mention the issue of provocation during his speech to the jury. However, he submitted that the issue did arise because on any view of the evidence the requirements for provocation had been met. He submitted that a legal direction which was necessary in fairness to an accused required to be given by a trial judge whether the issue was raised by the defence or not. It was only if the court was able to conclude that no reasonable jury could, on the evidence, reach the view that there was provocation that 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 any directions on provocation, as in his view the issue did not arise on the evidence. He explained the matter this way:
“In the present case Mr Copolo’s evidence was that he struck the complainer out of fear of what the complainer would do to them with the hammer if he just let him go. He could not run away because of his leg. That reflected the special defence of self‑defence lodged by Mr Copolo. That is evidence of a calculated act of self-defence. But it is not evidence which could support a...
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