Nico Donnelly v. Her Majesty’s Advocate [2017] HCJAC 78

Note of appeal against conviction and sentence:- The appellant was convicted after trial of a charge of murder. It had been his position at trial that he struck the deceased repeatedly with a knife in accident. A special defence of self-defence of another, Cameron Ferguson, was lodged on behalf of the appellant. It had been the appellant’s position at trial that the special defence had been lodged to explain the reason for the presentation of the knife at the deceased rather than the knife’s use in that he produced and presented the knife at the deceased to ward off the deceased’s attack upon Ferguson and the resultant infliction of the fatal injury upon the deceased had been accidental. Following his conviction the appellant was sentenced to life imprisonment with a punishment part of 20 years. The appellant appealed against his conviction on the grounds of alleged misdirections by the trial judge in relation to self-defence in defence of another and in relation to the question of provocation. It was also contended that the punishment part of 20 years was excessive. The court dealt with the alleged misdirection on self-defence of another shortly by stating that the directions were adequate and, in any event, were generous in light of the appellant’s position of accident in relation to the infliction of the fatal injury. In relation to the question of provocation, the trial judge had directed the jury that provocation could only arise if the appellant had been assaulted by the deceased. It was contended on behalf of the appellant that provocation could also arise in circumstances where the deceased attacked a third party, in this case, Ferguson. At the trial the trial judge gave directions to the jury in accordance with the opinion of Lord Justice General Rodger in Drury v. HMA 2001 SLT 1013 in which it was stated that the plea of provocation is narrower than that which applies in England and that in Scotland, with the exception of the discovery of infidelity, provocation can only apply where an accused had been assaulted. Here it was submitted on behalf of the appellant that there was a gap in the law and there ought to be a further exception to the general rule to include ‘third party provocation’. It was submitted that in England the law has developed by the replacement of the partial defence of provocation by the introduction, under the Coroners and Justice Act 2009, of the new partial defence of loss of control which has three elements:- (1) a loss of control; (2) a qualifying trigger; and (3) a requirement that a reasonable person of the sex and age of the accused, possessed of normal tolerance and self-restraint, might, in the same circumstances, have reacted in the way the accused had done. Here it was submitted on behalf of the appellant that third party provocation has previously been recognised in Scotland, and a number of cases were referred to which, at least to some extent, appeared to do so, and it was not necessary to extend the law. It was submitted that the trial judge should have given a direction to the jury that provocation could arise recognising that, whilst there was no actual violence towards Ferguson, there were threats of violence in what the deceased said and a reasonably based apprehension of violence should be sufficient. On behalf of the Crown it was submitted that it would be going too far to say that violence on a third party could not allow provocation to arise, however, this was not such a case. It was further submitted on behalf of the Crown that there had been no assault on Ferguson that amounted to substantial provocation and, even if the jury were entitled to consider “substantial provocation”, there was no evidence of loss of control on the part of the appellant and the violence used was disproportionate. Here the court, following a full review of the authorities, including the full bench decision in Drury, refused the appeal. The differences between provocation and self-defence were emphasised and whilst the latter provides a justification for the way an accused acted provocation may only provide an excuse. The court considered that on the facts of the present case any plea of third party provocation could not succeed in light of the absence of an assault by the deceased on Ferguson, nor was there any threatening gesture towards him, there only being an allegation that verbal threats had been made. In addition, as had been submitted on behalf of the Crown, there was no evidence of loss of control by the appellant and the violence exhibited by him was disproportionate. The court concluded that it was not advisable to seek to provide an “all-embracing definition” particularly in circumstances where the plea sought could not operate. In relation to the appeal against sentence the appeal was refused. The court noted that the appellant had a bad record of violence including assault to severe injury, permanent impairment and permanent disfigurement for which he was sentenced to 27 months detention in 2010, assault to severe injury and permanent disfigurement using a knife, for which he was sentenced to 27 months detention in 2011 and assault to severe injury using a sharp object in 2014 for which he was sentenced to 30 months detention. The court further noted that in relation to the present case the appellant stabbed the deceased twice in the chest with a knife which he had taken out with him.