Lawrence Nelson v. Her Majesty’s Advocate [2020] HCJAC 31

Note of appeal against conviction:- In July 2019, at Edinburgh High Court, the appellant and his co-accused and brother, Gary Nelson, were tried on an indictment containing three charges. Both pled not guilty to the charges, the appellant adhering to a special defence of self-defence in relation to charges 1 and 2 (charge 1 being a charge of attempted murder and charge 2 being a charge of assault to severe injury). At the close of the Crown case the Advocate depute withdrew all charges against Gary Nelson and also withdrew charge 3 against the appellant. In due course the jury unanimously convicted the appellant of charge 1 as libelled and of charge 2 under deletion of the words “repeatedly strike him on the head with a crowbar and”. On 12 August 2019, following the obtaining of a Criminal Justice Social Work Report the appellant was sentenced to a cumulo sentence of 12 years 6 months imprisonment in relation to the two charges, 6 months of that sentence being attributable to the bail aggravation. The appellant appealed against his conviction in relation to charge 1 and against his sentence it being contended that it was excessive. The appeal against conviction related to an alleged misdirection by the trial judge by failing to give a direction that, if the jury rejected the special defence of self-defence in relation to the charge of attempted murder, it would be open to them to convict the appellant of assault to severe injury, permanent disfigurement, permanent impairment and to the danger of life, under provocation. It was submitted on behalf of the appellant that, whilst neither the defence nor the Crown had raised the issue of provocation, given the circumstances and the evidence led it would have been open to the jury to find that the appellant had acted under provocation and the trial judge ought to have so directed the jury and the absence of such a direction amounted to a miscarriage of justice and the conviction in relation to charge 1 should be quashed to the extent of substituting a conviction for assault to severe injury, permanent disfigurement, permanent impairment and to the danger of life, under provocation. It was submitted that it had been open to a reasonable jury to reject self-defence on the basis that a reasonable means of escape was open to the appellant while also concluding that there was a physical attack by the complainer, that there had been a loss of self-control by the appellant and the immediate retaliation by him was not grossly disproportionate. In relation to the issue of the appellant having denied losing self-control when he gave evidence, it was submitted that it was open to a jury to accept and reject different parts of a witness’s evidence. On behalf of the Crown it was submitted that, having regard to what was said by the court in Ferguson v HMA 2009 SCCR 78 at 79, the question whether a direction is required on provocation depends upon whether, on a reasonable view of the evidence, such a finding would be open to the jury. It was further submitted that, in the present case, there was no evidence of a loss of self-control on the basis of the appellant’s position in evidence and to do so would involve the jury speculating in the absence of such evidence. It was further submitted that in the event that there was in fact an evidential basis for provocation any such misdirection did not result in a miscarriage of justice. Here the court refused the appeal. The court noted that neither the defence nor the Crown made any mention of provocation in their respective speeches and the question, under reference to Duncan v HMA 2019 JC 9, was whether a verdict, under provocation, was an obvious one having regard to the evidence and that the public interest necessitated that such directions be given. The court noted that the Crown conceded that three of the four requirements of provocation could be said to be present, namely, a physical assault on the appellant by the complainer, immediate retaliation by the appellant and a response by the appellant by inflicting one blow with a crowbar which was not grossly disproportionate, however, the court also noted that there was no evidence of a loss of self-control and on that basis provocation was not open to the jury. The court had regard to what the appellant said in evidence where he confirmed that he only used the crowbar once in order to facilitate his escape from the bedroom. There was an absence of evidence of the loss of self-control and retaliating in hot blood. In relation to the submission that a jury can accept/reject different parts of a witness’s evidence, whilst the court agreed with that the court also stated that where a part of a witness’s evidence is rejected it is not then open to a jury to substitute evidence to the opposite effect without there being an evidential basis for doing so. The court also concluded that there was no basis for suggesting the sentence imposed was excessive in light of the nature of the charges, in particular, the ongoing consequences for the complainer in charge 1 who has been left with cognitive defects and problems with his speech and memory.