Aaron Robert Dines known as Morrison v. Her Majesty’s Advocate [2021] HCJAC 29

Note of appeal against conviction:- On 5 November 2020, following a trial at Edinburgh High Court, the appellant was found guilty of a charge of attempted murder by repeatedly striking the complainer on the body with a knife and sentenced to 8 years imprisonment. The appellant appealed against his conviction only, it being contended that the trial judge had erred in removing the appellant’s special defence of self- defence from the jury’s consideration. The circumstances were that the appellant had lodged a special defence of self-defence in the following terms:- “on the occasion libelled he was acting in self-defence, he having been assaulted by the said (complainer)”. It was the appellant’s position in evidence that he denied that he had used a knife or stabbed the complainer. Further, when the trial judge raised the question of self-defence after evidence and before speeches, the appellant’s counsel agreed that it did not arise. It was submitted on behalf of the appellant at the appeal that the trial judge had erred as a case of self-defence was available on the basis of other pieces of evidence from other witnesses who gave evidence during the course of the trial. It was submitted that whilst the appellant had denied stabbing the complainer deliberately and that he had ever had a knife, the jury could nonetheless have held, as they did, that he had a knife and had deliberately stabbed the complainer. It was further submitted there was other evidence in the case, including what the appellant said to the police which was consistent with self-defence, for example, the appellant’s remark to the police when he was arrested when he said “It was me getting stabbed and it was just self-defence” and the jury could have held that the criteria required for self-defence were met. It was further submitted that counsel for the appellant at the trial was in error in making the concession that the special defence should be withdrawn. It was submitted that if the court held that self-defence ought not to have been taken away from the jury then a miscarriage of justice had resulted. On behalf of the Crown it was submitted that it could not be argued that all three criteria required for a successful plea of self-defence were made out. It was submitted that there was cruel excess in the present case and a reasonable means of escape was available to the appellant. In addition, counsel for the appellant at the trial agreed that there was no basis for self-defence to remain before the jury and that concession was correctly made given that the only conduct libelled was the act of stabbing the complainer repeatedly with a knife and the appellant had said that he did not do that and, as such, there was no basis for self-defence and the judge had been correct to raise the issue. The court refused the appeal. The court considered that there was no reasonable basis for the special defence of self-defence to remain open to the jury, particularly in light of the appellant’s own evidence where he denied using the knife and that was the only means by which an assault was allegedly committed. There was no evidence capable of fulfilling the three criteria for a plea of self-defence. The court went on to state that the concession by the appellant’s counsel was correctly made.