Kevin McGrouther v. Her Majesty’s Advocate [2021] HCJAC 5

Note of appeal against conviction:- On 21 February 2020, following a trial at Glasgow High Court, the appellant was convicted of a charge of attempted murder by striking the complainer on the chest with a knife. An averment that the appellant had previously evinced malice and ill will towards the complainer was deleted. The appellant appealed against his conviction. It was contended on behalf of the appellant that the trial judge misdirected the jury by failing to leave open to them the possibility of returning a verdict of guilty without the aggravation of attempted murder. It was accepted on behalf of the appellant that the trial judge had provided appropriate directions on the definition of the charge including the necessary mens rea for the aggravation of attempted murder. In addition, it was accepted that the trial judge gave appropriate and accurate directions on the concept of self-defence which was the appellant’s position at trial. It was alleged that the trial judge erred in relation to the part of the charge when the jury were given directions on the availability of deleting aspects of the charge. The trial judge had stated that the way the case had been presented by parties was that it was either an attempted murder or self-defence was made out and the appellant should be acquitted. It was submitted on behalf of the appellant that, whilst it was correct to say that trial counsel had not suggested that there was a possibility of a verdict of guilty under deletion of the averment of attempted murder the trial judge had misunderstood that to mean that the only verdicts available to the jury were either guilty to the charge of attempted murder or an acquittal. It was submitted that the Advocate depute in her speech to the jury had raised the issue of whether the appellant should be convicted of attempted murder or of a lesser offence and, as such, it was necessary for the trial judge to provide directions which dealt with that possibility. It was submitted that given the issue to be addressed by the jury was the nature and extent of the appellant’s violent conduct which involved a single blow with a knife then a verdict under deletion of attempted murder was more than a theoretical possibility and a direction to that effect ought to have been given. On behalf of the Crown it was submitted that there had been no misdirection by the trial judge as given the evidence led and the approach of parties at trial a verdict of assault to severe injury, permanent disfigurement and danger of life was not one which was reasonably available. It was submitted that the issue at trial was whether the appellant had been acting in self-defence and a direction on an alternative verdict was not required in the circumstances. Here the court refused the appeal. The court did not consider that the Advocate depute at trial had suggested a lesser verdict than attempted murder and, as such, the basis for the direction sought by the appellant was not present. The court considered that, having regard to the opinion of the court in Duncan v HMA 2018 SCCR 319 at paragraphs 27 and 28, the only live issue at the trial was whether self-defence was made out and the prospect of a verdict under deletion of attempted murder could not be described as an obvious one. The directions which were given reflected the approach that parties had taken to their respective cases and this was not one of the rare cases where there was a need for a direction on an issue not raised by either party.