APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Clarke Lord Mackay of Drumadoon	[2010] HCJAC 9 Appeal No: XC657/08 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in NOTE OF APPEAL AGAINST CONVICTION by JOHN SCOTT ANDERSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Brown, Macdonald; George Mathers & Co., Aberdeen

Respondent: Prentice, Q.C. A.D.; Crown Agent

3 February 2010

Background

[1] On 29 September 2008, the appellant was convicted after trial at Edinburgh High Court of a charge of murder. That charge was in the following terms:

"On 22 February 2008 at Beattie Avenue, Aberdeen, you JOHN SCOTT ANDERSON did assault William James Reeve, c/o Grampian Police, Queen Street, Aberdeen and did stab him on the body with a knife or similar instrument, whereby said William James Reeve, was so severely injured that he died later that day at Aberdeen Royal Infirmary, Forrester Hill Road, Aberdeen, and you did murder him;

you JOHN SCOTT ANDERSON did commit this offence while on bail, having been granted bail on three separate occasions on 22 June 2007 and on 16 October 2007, all at Aberdeen Sheriff Court."

[2] The appellant was indicted for trial along with his brother George James Anderson. They faced a variety of charges relating to three separate incidents. The first incident occurred on 16 February 2008 and led to one charge against the appellant. The second incident occurred on 21 February 2008 and led to charges against the appellant and his brother. Those charges included charges of assault involving members of the deceased's family, including one charge against the appellant's brother in which Hayden Reeve, the 15 year old son of the deceased, was the complainer. Both the appellant and his brother faced a further charge of assault on 21 February 2008, in which James Graham, an adult friend of the deceased, was the complainer. Only the appellant faced the charge of murder, which was libelled as having occurred during the third incident on 22 February 2008. In respect of that murder charge the appellant lodged a special defence of self defence to the effect that he had been acting in self defence of himself, his brother, George Anderson, and his mother, Lynda Anderson. Both of them were present when the deceased was killed. During the course of the trial, the Advocate depute withdrew a number of the charges which the appellant and his brother faced. That resulted in the appellant's brother being acquitted of all the charges he faced and the Crown proceeding against the appellant only on the charge of murder.

The trial

[3] The evidence before the jury about the events leading up to the death of the deceased was along the following lines. Around 4.00pm on 22 February 2008 the deceased was on his way to visit his friend, James Graham. He saw the appellant and his brother in Beattie Avenue, Aberdeen. They were joined there by their mother, Lynda Anderson. The deceased telephoned James Graham and asked for his assistance in "sorting out" the two Anderson brothers, in particular George Anderson. James Graham agreed to do so. He armed himself with a meat cleaver, which he had in his home, and came down to join the deceased in Beattie Avenue, Aberdeen. The deceased then challenged and proceeded to fight with George Anderson. The deceased was unarmed and the fight involved fists and feet. George Anderson was knocked backwards into a hedge. It was obvious to those present that George Anderson was getting the worse of the encounter. The appellant, having seen what was happening, ran off to his mother's house, which was nearby. There he armed himself with a kitchen knife. He then returned to the scene of the fight involving his brother. In the meantime James Graham had been patrolling up and down the street with his meat cleaver in his hand. He explained in evidence that he had done so in order to ensure that there was no intervention by other members of the Anderson family in the fight between the deceased and George Anderson.

[4] On the appellant's return to the scene, there was a brief confrontation between James Graham and the appellant, during which they threatened each other with their respective weapons. However, no physical violence took place between them.

[5] The trial judge reports that during the confrontation involving the appellant and James Graham, the violent encounter between the deceased and George Anderson ceased. The deceased was standing up, with George Anderson either in a hedge or a neighbour's garden. The appellant then stepped aside from his verbal confrontation with James Graham and stabbed the deceased once in the lower abdomen, saying as he did so "That's what you fucking get".

[6] A photograph of the deceased's body and a copy of the post mortem report were available to the Court. They establish that the stab wound penetrated the skin of the deceased's upper abdomen, just to the right of the midline and just below the margin of the ribcage. The pathologist estimated the length of the stab wound, as it travelled upwards within the deceased's body, as being 11-12 cms. That wound injured the abdomen, liver, diaphragm and heart of the deceased and caused injuries that were not survivable. The deceased was pronounced dead shortly after his arrival at the Aberdeen Royal Infirmary.

[7] The trial judge reports that the major plank of the defence was that the appellant had been acting in self defence of himself, his brother and his mother. During his address to the jury, senior counsel for the appellant also raised the question of provocation as being a basis upon which the jury might reduce a verdict of guilty from one of guilty of murder to one of guilty of culpable homicide.

[8] The court minutes indicate that after the Advocate depute and counsel for the appellant had addressed the jury the trial judge raised with them, outwith the presence of the jury, the issue of whether a verdict of culpable homicide was sustainable within the context of provocation. The trial judge sought submissions from counsel on that issue. Submissions having been heard the trial judge intimated that he was of the view that provocation could not be made out and that his charge to the jury would contain a direction that the only verdict of acquittal which would be open to the jury would be on the basis of self defence.

Grounds of appeal

[9] The appellant's appeal proceeds on three grounds. They are:

"1. The learned trial judge erred by inadequately directing the jury that it was open to them to return a verdict of guilty in relation to the crime of culpable homicide. The learned judge failed to direct the jury on the circumstances of the incident case, including the fact that only one stab wound had been inflicted. He was obliged to explain the law relating to culpable homicide in light of the evidence led in relation to the single injury sustained by the deceased.

2. Esto the trial judge erred in directing the jury that it was not open to them to find that the appellant had been provoked by the actings of the deceased and his associate James Graham.

3. In the whole circumstances there has been a miscarriage of justice."

[10] It is to be noted that during that discussion which took place between the trial judge and counsel, immediately prior to the charge, neither the trial judge nor counsel appear to have raised the issue involved in the first ground of appeal namely whether a verdict of guilty of culpable homicide would have been open to the jury in the circumstances of this case, including the fact that there was only one stab wound.

Submissions

[11] Counsel for the appellant argued that it was clear from the trial judge's summary of the evidence that matters had been instigated by the deceased himself. Events had moved quickly. The deceased had sought support from his friend James Graham, who had arrived with a weapon. The deceased and James Graham had obviously been acting together. When a fight developed between the deceased and George Anderson it was clear to everyone present that George Anderson was coming off worst. The appellant had gone to his mother's house, which was only some 10 yards away, to obtain a weapon. There had then been an exchange of words between the appellant with his weapon and James Graham with his meat cleaver. Feelings of tension were running high. There had been a real threat of further violence directed against the appellant and other members of his family. That was the background against which the appellant had acted.

[12] Under reference to ground 2, counsel for the appellant dealt first with the issue of provocation. It was submitted that the trial judge had erred in withdrawing provocation from the jury. Indeed he had acted illogically in allowing the defence of self defence to go to the jury, whilst withdrawing that of provocation. There had only been one stab wound. The trial judge's explanation to the jury as to why he was withdrawing the defence of provocation (which is to be found between page 9 line 23 and page 11 line 12 of the charge) did not adequately reflect the speed of events. Nor did it deal adequately with the fact that after the appellant returned from his mother's house, with a kitchen knife, he had been involved in a verbal confrontation with James Graham, who was brandishing a meat cleaver. It was argued that when the appellant had returned from his mother's house with the knife there was still scope for him to be held to have been provoked by the actings of the deceased and James Graham. The joint intentions of the deceased and James Graham had been to assault both the appellant and his brother. That was why the deceased had called for support from James Graham with his meat cleaver.

[13] Under reference to ground 1, it was argued by counsel for the appellant that the evidence in the case would have supported a verdict of guilty of culpable homicide on the basis that the appellant had only struck a single blow. Reference was made to Ferguson v HMA 2009 SCCR 78. In these circumstances, leaving aside the question of provocation, the trial judge had erred in failing to direct the jury that it would have been open to them to convict the appellant of culpable homicide. Instead the trial judge had directed them to contrary effect. At page 15 lines 18-24 of his charge the trial judge had instructed the jury that if they decided that self defence was applicable, or if they were left in a reasonable doubt about it, they would acquit, but "if not, and you are satisfied that the accused has been proved as being responsible for the killing of William Reeve, you would convict."

[14] In the whole circumstances the decision taken by the trial judge to withdraw provocation from the jury and his failure to direct the jury that it would have been open to them to return a verdict of culpable homicide had given rise to a miscarriage of justice.

[15] In response the Advocate depute argued that this would not have been an appropriate case for the trial judge to have directed the jury that a verdict of culpable homicide was open on the basis of only one stab wound. The facts of the present case could be distinguished from those in Ferguson. In the latter case there had only been one wound but it had not been in a particularly dangerous area of the body. That was not the position in the present case where the kitchen knife had been directed towards a particularly vulnerable part of the body, into the deceased's abdomen and upwards towards the deceased's heart which it had fatally injured. The nature of the injury deliberately inflicted in the present case was an example of the types of case in which the jury could not reasonably have convicted of culpable homicide and in which it would be appropriate for the trial judge to withdraw such a verdict from the jury (see Ferguson at pp. 87 A-B). It follows that in the circumstances of this case the trial judge cannot be criticised for not having directed the jury that a verdict of culpable homicide was open to them.

[16] As far as the question of provocation was concerned it was submitted the trial judge had not erred in withdrawing that line of defence from the jury. Although defences of self defence and provocation are sometimes linked they are separate lines of defence. The facts of the present case would not have warranted a jury holding that the elements of provocation necessary to reduce a charge of murder to one of culpable homicide had been present. There had been no loss of control. The killing had occurred as a consequence of a deliberate act to harm the deceased. The evidence the jury heard had tended to suggest that James Graham had been there to prevent others from intervening in the fight between the deceased and the appellant's brother. James Brown had done nothing other than brandish his meat cleaver. An independent witness, James Graham, had described what had happened when the appellant had returned from his mother's house. He spoke to the appellant having brought two knives with him. He then described how after the fight between the deceased and the appellant's brother had stopped, the appellant's mother and sister had shouted at the appellant "Don't do it. Put it away." However, without any confrontation from the deceased, the appellant had approached the deceased and stabbed him - shouting "That's what you fucking get".

Discussion

[17] We have reached the conclusion that this appeal falls to be refused. In our opinion this is not a case in which it would have been appropriate for the trial judge to have directed the jury that it would have been open to them to return a verdict of culpable homicide on the basis that the appellant had only struck one blow. Such a verdict would have been unreasonable having regard to the evidence the jury heard as to the nature of the violence the appellant used towards the deceased, which was directed at a vulnerable part of the deceased's body and in particular in the direction of his heart.

[18] Likewise we have reached the view that the trial judge was entitled to withdraw the defence of provocation from the jury. In a case such as the present when it is claimed that the accused was subject to verbal abuse, but was not physically assaulted, provocation can only arise (a) where the accused has been subjected to verbal insult or abuse; (b) where he has lost his temper and self-control immediately; (c) where he retaliated instantly and in hot blood; and (d) where the ordinary person would have acted as the accused did. In our opinion the trial judge did not err in law in taking the view that the jury could not have held all those elements to have been established. It may appear to have been illogical for the trial judge to have left self defence to the jury, but withdrawn the defence of provocation. However it is not for us in this appeal to address the question of whether it would also have been open to the trial judge to have withdrawn the special defence of self defence from the jury.

[19] In the whole circumstances there has been no miscarriage of justice in the appellant's trial and his appeal against conviction is accordingly refused.