Duncan v Her Majesty’s Advocate [2018] HCJAC 60

Duncan v Her Majesty’s Advocate [2018] HCJAC 60 concerned an appeal against conviction for attempted murder, in which the appellant contended that the trial judge ought to have directed the jury on provocation despite the defence case having been that the appellant was not involved in the assault at all and despite her not having given evidence.

On 7 September 2017 at Aberdeen High Court Ms Duncan was convicted, along with two co-accused, of assaulting Mr Jones by repeatedly punching and kicking him on the head and body, brandishing a knife, stamping on his head and body to his severe injury, permanent disfigurement and to the danger of his life, and attempting to murder him. Ms Duncan was sentenced to six years’ imprisonment. Her co-accused received seven and eight years respectively, the latter having been convicted of additional charges.

The evidence established a background of animosity between one co-accused and the complainer. On 22 May 2016 all three accused and the complainer were at a flat in Aberdeen. The complainer had been “play fighting” with the two male accused in the kitchen. After this had calmed down, the complainer went into the living room and fell asleep on a sofa. Two witnesses gave evidence that the male accused then attacked the complainer as he lay on the sofa, kicking him, and that Ms Duncan joined in, punching him four or five times. All three accused ran out of the flat. In the hallway Ms Duncan said “he deserved it” and later that “he had to learn”. Airborne blood spots and staining consistent with a person being attacked whilst on the sofa and bleeding heavily were discovered. Bloodstains on Ms Duncan’s jeans contained a mixed DNA profile of both her and the complainer. The complainer had a Glasgow Coma Scale of eight out of fifteen when examined. He had soft tissue injuries and contusions to both sides of his brain, right-sided facial fractures, and was left with a catastrophic brain injury. Medical evidence confirmed the attack could have caused death.

After detention on 23 May, Ms Duncan told police that she had sustained bruising when the complainer had turned up at another address on 21 May with a knife and started fighting. In her police interview her statements were mixed and contradictory. She initially denied doing anything, then admitted being present when the complainer walked in with a knife. She said the complainer had assaulted her by pulling her hair and caused bruising. She said she had “kicked off” but denied hitting him. In a later part of the interview she said the complainer came into the flat like a raging bull with a knife, called her a slut, and she had “kicked off” before being assaulted by him. She said this occurred before the other accused arrived. She claimed not to remember what happened after that. When asked how the complainer was injured, she said he had stood up from the settee and sat down again. At the end of her interview she said her sole involvement was putting her hand on his chest. After being charged she said she had not touched him. Medical examination revealed two bruises on her left upper arm and multiple small bruises on her knuckles and the back of her hands, which could not be aged. None of the accused gave evidence.

The general defence position was that the jury should not believe or rely on the eye witnesses or that their evidence should leave reasonable doubt about whether the accused were involved. Counsel for Ms Duncan argued that one witness had lied in one statement and not mentioned the appellant in a second statement, and had been under the influence of something, and that the evidence was of the appellant simply being an onlooker. The trial judge recorded that the evidence painted a clear picture of the complainer entering the flat, play fighting in the kitchen, then a gap during which things calmed down and the complainer went to sleep, after which an attack was launched on him while he was sleeping. The judge considered there was no basis for a plea of provocation because any interaction solely between the complainer and the appellant had been some time before the attack on the prone complainer, and there had been no hint of provocation being an issue during the trial.

The appellant contended on appeal that the judge should have directed the jury on provocation, relying on Ferguson v HM Advocate 2009 SCCR 78. It was argued that the jury would have been entitled to find, on the basis of the appellant’s statements to police that the complainer had appeared with a knife and she had “jumped in and started fighting”, that she had been attacked, lost her temper and self-control and retaliated instantly in hot blood. It was submitted that her retaliation would have been regarded as broadly equivalent and proportionate to the violence she had faced, and that only if the judge could conclude that no reasonable jury could find provocation established should directions on provocation have been omitted.

The court rejected the appeal. Lord Carloway, delivering the opinion of the court, emphasised the fundamental principle that as a generality the trial judge is only required to direct a jury on the issues which are live at the trial. He reviewed the authorities including Templeton v HM Advocate 1961 JC 62, Johnston v HM Advocate 1997 SCCR 568, Mackay v HM Advocate 2008 SCCR 371, Ferguson v HM Advocate 2009 SCCR 78 and R v Coutts [2006] 1 WLR 2154. The court held that there was little real conflict between the authorities. The obligation on the trial judge is to charge on verdicts in accordance with the manner in which the case has been presented to the jury. The judge should not speculate or embark upon areas of possible alternative verdicts which have neither been canvassed in the evidence nor formed part of the speeches to the jury. The judge ought not to present an alternative verdict which has not been canvassed by the parties unless the prospect of that verdict is an obvious one. There is an exception where a direction on an alternative is required as a matter of fairness. The need to direct on a matter not raised by parties ought to be a rare event, but it remains possible that the trial judge will regard an alternative as obviously open to the jury on the evidence even if it has not been addressed in the speeches.

The court held that applying this principle to the present case, the parties did not in their addresses to the jury raise the prospect of a verdict of assault only based upon provocation. There was no need for the trial judge to do so unless that alternative verdict was an obvious one on the evidence such that the public interest necessitated that the direction be given notwithstanding any unfairness which might thereby ensue. The evidence founded upon by the appellant, namely the content of her statements to the police, did not obviously raise provocation as a trigger for the appellant participating in an attack on the complainer as he lay on the sofa. Rather, any element of provocation related to an earlier episode after which matters had calmed down. Any earlier violence had no immediate relationship to the attack on the sofa. The appellant’s position was that the evidence was so incredible or unreliable that the jury ought not to be satisfied she had participated in the assault, not that she had done so under provocation. Had the judge given the direction, it would have had to proceed on a hypothesis that the appellant had participated in the attack. Such a direction would have had the potential to undermine the defence position as put to the jury. It certainly did not require to be given as a matter of fairness.

In short, no direction on provocation was required where the defence case was one of non-participation and the evidence of provocation was not obviously linked to the attack itself, and the appeal against conviction was accordingly refused.

Graham v HM Advocate [2018] HCJAC 4
Coutts [2006] UKHL 39, [2006] 1 WLR 2154