Owens v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 22 March 1946 |
| Date | 22 March 1946 |
| Docket Number | No. 17. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Ld. Jamieson.
Crime—Murder—Special defence—Self-defence—Evidence—Sufficiency—Panel's belief that deceased armed with knife—Effect of erroneous belief—Onus of proof—Effect of panel's uncorroborated testimony.
At the trial of a panel, charged with murder, the only persons who could give direct evidence as to the circumstances in which the deceased met his death were the panel and the panel's sister, who was living with the deceased at the time. The panel, who had lodged a special defence of self-defence, gave evidence that, after seeing what looked like a knife in the deceased's hand, he had in self-defence used his own knife in a struggle which ensued. The jury having found him guilty of murder, he appealed on the ground, inter alia, of misdirection. In particular he complained of a direction to the effect that, if the panel was wrong in thinking that there was a dangerous object in the deceased's hand, and if there was no such object, then the subsequent actings of the deceased would not have justified the use of a lethal weapon by the panel. He also complained that the jury had been misdirected in regard to the onus of proof.
Held that for the purpose of setting up self-defence it was sufficient for the panel to satisfy the jury that he believed on reasonable grounds that he was in imminent danger; that grounds for such belief might exist even although he was mistaken in thinking that the deceased was armed; and that, accordingly, the jury had been misdirected on the essential elements of self-defence, and the conviction must bequashed.
Observed that the onus of proof, in cases where self-defence is pleaded, is on the Crown throughout. The Crown must prove that the fatal act was the act of the accused and that it was deliberate or committed with a reckless disregard of the consequences, and must show that the explanation given by the panel is false. If the panel proves that he acted under reasonable apprehension of danger to his life he must be acquitted; but he is not bound to set up the special defence by complete legal proof; he is entitled to rely on his own sworn statement and his own credibility to outweigh any colourable case presented by the Crown. This is because his uncorroborated testimony may introduce that reasonable doubt which the Crown is under the burden of excluding. The panel's testimony may also justify the jury in reducing the quality of the crime from murder to culpable homicide.
Hugh Owens was charged on an indictment at the instance of His Majesty's Advocate which set forth that "you did on 16th December 1945, in the room occupied by William Falconer at 70 Shamrock Street, Glasgow, assault said William Falconer, and did cut or stab him on the body with a knife or similar weapon, and you did murder him."
The panel pleaded not guilty, and lodged a special defence of self-defence. He was tried before Lord Mackay and a jury at a sitting of the High Court at Glasgow on 4th and 5th March 1946, when the jury unanimously found him guilty of murder. The following narrative of the evidence is taken from the opinion delivered by the Court when he subsequently appealed against his conviction:—"There is no doubt that William Falconer was fatally stabbed in a house in Shamrock Street, Glasgow, at about 1.30a.m. on 16th December 1945. Nor is there any doubt that the appellant was the man who stabbed him. He admitted it shortly after the event to the police and to one of his sisters, and he admitted it in the witness-box. The only other person of an age to give evidence who was present at the time when Falconer met his death was the appellant's sister, Mrs Mullan, who was Falconer's paramour. She gave evidence and deponed to the arrival of the appellant at a late hour at the house in which she and Falconer had been living together for a number of years. According to her, Falconer was annoyed by the appellant's coming to the...
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DPP v Morgan, ; DPP v McDonald, ; DPP v McLarty, ; DPP v Parker,
...that physical action in self-defence or the defence of another is called for: Reg. v. Rose (1884) 15 Cox C.C. 540, Owens v. H.M. Advocate 1946 J.C. 119, Reg. v. Chisam (1963) 47 Cr. App. R. 130, Reg. v. Fennell [1971] 1 Q.B. 132Finally, in relation to the critical comments of Professor Gla......
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Richard Joseph Coubrough's Executrix V. Her Majesty's Advocate
...statement of the law in relation to onus of proof. That statement had stemmed from Lennie v HM Advocate 1946 JC 40 and Owens v HM Advocate 1946 JC 119, which had confirmed that the onus of proving a special defence was on an accused. Had the appellant been able to present his original appea......
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Hetsberger v The State
...of the jury that the defendant was in imminent danger and that he held that belief on reasonable grounds. See Owens v. H.M. Advocate (1946) S.C.J. 119. Two questions the jury must therefore answer. Firstly did the appellant genuinely believe that he was in imminent danger? And secondly was ......
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Jones v HM Advocate
...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 ......
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Court of Appeal
...systems, for example Scotland, insist that the mistake has to beboth genuinely held and objectively reasonable (Owens v HM Advocate1946 JC 119; Crawford v HM Advocate 1950 JC 67). Can a disparity between the civil law and the criminal law be justifiedin this context? There is insufficient......
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Analysis
...there was little doubt over the position of Scots law in relation to an unreasonable mistake in self-defence. As Owens v HM Advocate111946 JC 119. made clear, the defence of self-defence is available only where any mistake made by the accused about the existence of an imminent attack is a r......
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In the Scottish Courts
...itis almost certainly not the law in Scotlandthatthe onus is ontheaccused to establish all special defences (See, e.g, Owens v.H.M.Adv. (1946 J.C. 119; 10 J.C.L. 210) which placestheonus on the Crown to exclude self-defence.Therequirementthatnoticemustbe given of such a defence does not app......