Sean Raymond Graham v. Her Majesty’s Advocate [2018] HCJAC 4

Note of appeal against conviction:- On 18 January 2017, at Airdrie Sheriff Court, the appellant and his co-accused Charlene Johnston, were convicted after trial on indictment of a charge of assault to injury by repeatedly punching and kicking the complainer on the head and body. The jury deleted the reference to them stamping on the complainer. Following their convictions the appellant and his co-accused were sentenced to 18 months imprisonment. In advance of the trial the appellant had lodged a special defence of self-defence of himself and defence of his partner, the co-accused, both of them having been attacked by the complainer. The appellant appealed against his conviction on the ground that the trial sheriff erred in failing to give directions to the jury on provocation as well as the directions he did give in relation to self- defence and defence of another. The sheriff reported to the court that in his view directions on provocation were unnecessary in light of the circumstances and, in any event, the essential elements of provocation were not satisfied. Here it was submitted on behalf of the appellant that there was an evidential basis upon which the jury could have returned a verdict of guilty of assault with the rider “under provocation”. It was submitted that on account of the transcripts of the evidence of the complainer, his partner and the appellant there was evidence which, if the jury accepted it, would have entitled the jury to hold that provocation had been made out. It was further submitted that the four essential requirements of provocation, namely, being under physical attack, immediate loss of temper and self control, instant retaliation in hot blood and proportionality of response were present. It was submitted that the jury were entitled to accept and reject different parts of a witness’s evidence and issues of credibility and reliability were matters for the jury and not the trial sheriff. In light of the absence of a direction on provocation it was submitted that there had been a material misdirection which resulted in a miscarriage of justice and the conviction should be quashed and a conviction with the rider “under provocation” substituted. On behalf of the Crown it was submitted that the four essential elements required for provocation had not been met and in hearing the evidence the sheriff was better placed than an appellate court to decide whether such a direction was necessary. Here the court, having reviewed the transcripts of the relevant evidence, allowed the appeal. It was noted by the court that the complainer, his girlfriend and the appellant all spoke to the complainer being angry and upset, in possession of a piece of fence post which he brandished and, according to the appellant, struck the appellant and his co-accused with. Here the court reiterated that questions of credibility and reliability are matters for a jury and it is for the jury to decide what evidence to accept and reject. The court noted that simply because the jury rejected the special defence of self-defence that does not necessarily mean the jury would have rejected provocation. In concluding that there was an evidential basis for the jury to hold that the four elements of provocation were present the court considered that, despite neither the Crown or the defence making any reference to provocation in their speeches, the trial sheriff ought to have given the jury directions on it and the absence of such a direction resulted in a miscarriage of justice. As such, the court quashed the conviction and substituted a conviction in identical terms but with the added rider “under provocation” and, to reflect the reduced culpability, quashed the sentence of 18 months and substituted a sentence of 16 months imprisonment.