APPEAL AGAINST CONVICTION BY JOHN MURRAY COPOLO KNOWN AS MCINTOSH AND JOANNE MARY IRONSIDE KNOWN AS MITCHELL AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 119
HCA/2016/000177/XC
HCA/2016/000179/XC
Lord Menzies
Lord Bracadale
Lord Turnbull
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL AGAINST CONVICTION
by
JOHN MURRAY COPOLO known as McINTOSH
and JOANNE MARY IRONSIDE known as MITCHELL
Appellants
against
HER MAJESTY’S ADVOCATE
Respondents
First Appellant: Crowe; Faculty Services Ltd Edinburgh
Second Appellant: Moggach; Burns & McGregor Aberdeen
Respondent: Harper, AD; Crown Agent
2 December 2016
Introduction
[1] The appellants John Copolo, known as McIntosh and Joanne Mary Ironside, known as Mitchell, the first and second appellants respectively, were indicted for trial in the High Court at Edinburgh in March 2016. They each faced a charge of attempted murder in identical terms and the second appellant additionally faced a charge of attempting to pervert the course of justice.
[2] The first appellant was convicted in the following terms:
“On 20 July 2015 at Dill Road, Aberdeen you did assault Daniel Main and repeatedly strike him on his head and body with a hammer and pull him by his hair, all to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and you did attempt to murder him.”
The charge as presented to the jury contained further averments of striking the victim with a piece of wood, repeatedly pushing him on the body, punching and kicking him on the head and body and rifling through his pockets and robbing him of a cheque, medication and £20 of money. These averments were all deleted in the verdict returned.
[3] The case as presented by the Crown was that the first appellant was responsible for an attack on the complainer with a hammer and that the second appellant was acting in concert with him. The second appellant was convicted in the same terms as the first but with the additional deletion in her case of the averment of attempt to murder. The second appellant was also convicted of the charge of attempting to pervert the course of justice.
The evidence for the Crown
[4] The trial judge summarised the evidence led at trial in his report to this court. He explained that the incident arose out of a dispute over drugs which had been obtained by the complainer from the second appellant, who was the partner of the first appellant. All three knew each other. The complainer was unhappy with the quality of the items supplied to him and he returned to the locus, which was near to where the two appellants lived, to remonstrate with the second appellant. He telephoned her in advance to say that he was coming to see them. All three met at Dill Road. At that time the first appellant was walking with the assistance of crutches. The incident which formed the basis of the charge then took place. There was a dispute on the evidence as to how it occurred.
[5] The complainer’s evidence was that there was a confrontation which began with a heated argument involving a scuffle between the three. He explained that the second appellant was then ready to start fighting and was being aggressive. She made a dive at him to which he responded by pushing her back and also pushing the first appellant, causing him to fall to the ground. He explained that the second appellant then distracted him by taking his push bike and making it look as if she was going to steal it. This diverted his attention from what the first appellant was doing and the next thing he knew was that he was lying on the ground with the first appellant standing over him with a big hammer in his hand hitting him on the head. He thought he was hit around four times on the head and also on the body. He did not know how many times he was hit altogether. The incident came to an end when the second appellant said: “that’s enough” and the two walked away together. The second appellant threw the complainer’s mobile phone back towards him as they left.
[6] The complainer denied the suggestions made to him in cross examination that he had armed himself with a stick or a baseball bat and that he had struck the first appellant with a hammer. He denied that he had been the one in possession of a hammer and that in the course of the struggle the first appellant had taken it from him and struck him with it.
[7] The only other evidence led by the Crown concerning the circumstances of the offence came from a lady Kelly Duthie and her daughter Alannah, each of whom had a view of some of what took place from the window of a nearby property. Kelly Duthie saw a lady with blood on her face standing close to a man on the ground and another man who was standing over the person on the ground hitting him with blows directed towards his face and head with something that looked like a hammer. She thought that he hit him more than 10 times. She telephoned the police and during the course of that conversation was able to recognise the first and second appellants as the two involved with the man on the ground. In evidence she said that the second appellant was not doing anything at the time.
[8] In her evidence Alannah Duthie testified that she saw the second appellant strike the complainer with a piece of wood and saw the first appellant hitting him with a hammer.
[9] The medical evidence demonstrated that when taken to the intensive care unit of Aberdeen Royal Infirmary the complainer was found to have six or more semi-circular injuries to his head consistent with having been hit by a hammer, as well as injuries to his wrist, forearm, shoulder and chest. The blows to his head had resulted in a depressed fracture to the skull pushing down towards the brain which evidenced the use of considerable force in administering the blows.
The defence evidence
[10] The first appellant had intimated a special defence of self-defence prior to the commencement of the trial and gave evidence on his own behalf. The second appellant did not.
[11] The first appellant’s evidence was summarised for us by the trial judge at pages 10 and 11 of his report. His evidence was that he had been told by the second appellant that the complainer had telephoned her calling her names and accusing her of ripping him off. He hoped to avoid meeting with the complainer by going elsewhere but as he and the second appellant left their home the complainer was waiting for them at the end of the street. The first appellant’s evidence was that he was not armed with anything. On meeting up with the complainer he became argumentative. The complainer took out a baseball style bat and hit him twice on the head with it. He was unable to escape as he was on crutches at the time. The complainer then struck the second appellant on the head with the same bat causing her to collapse to the ground. The next thing he knew the complainer was on his back holding a hammer and trying to hit him. There was then a scuffle in the course of which the first appellant tried to get the hammer from the complainer and they fell to the ground each holding onto it. He shouted to the second appellant to help whereupon she came over and helped to pull the complainer away. The complainer then got up and turned towards the second appellant. At this point the first appellant had hold of the hammer. He pulled himself up and hit the complainer with it. It all happened really quickly and the complainer fell to the ground. His evidence was that the only time he was standing above him was after he had hit him. The first appellant explained that he struck the complainer out of fear as to what he would do to them with the hammer. He admitted hitting the complainer four times with the hammer and explained that Ms Duthie and her daughter had not seen the start of the events.
[12] In his charge the trial judge gave directions on self-defence and on concert, none of which were criticised. The issue of provocation was not mentioned in any of the closing speeches and no directions on the subject were given.
Leave to appeal
[13] Leave to appeal against conviction was granted in respect of the first appellant on a single ground which submitted that the trial judge had misdirected the jury by failing to give directions on the issue of provocation. In respect of the second appellant leave to appeal was granted on a single ground which submitted that in light of the verdict returned it was clear that the jury had failed to follow the directions which they had been given by the trial judge and had returned a verdict which they were not entitled to return.
Submissions
First appellant
[14] Of behalf of the first appellant, Mr Crowe, who had appeared for him at trial, explained that he had made a tactical decision not to mention the issue of provocation during his speech to the jury. However, he submitted that the issue did arise because on any view of the evidence the requirements for provocation had been met. He submitted that a legal direction which was necessary in fairness to an accused required to be given by a trial judge whether the issue was raised by the defence or not. It was only if the court was able to conclude that no reasonable jury could, on the evidence, reach the view that there was provocation that directions on this issue could be omitted. He referred to the decisions of Ferguson v HM Advocate 2009 SLT 67 and Duffy v HM Advocate [2015] HCJAC 29.
[15] Mr Crowe drew our attention to page 12 of the trial judge’s report where he explained that he made a deliberate decision not to give any directions on provocation, as in his view the issue did not arise on the evidence. He explained the matter this way:
“In the present case Mr Copolo’s evidence was that he struck the complainer out of fear of what the complainer would do to them with the hammer if he just let him go. He could not run away because of his leg. That reflected the special defence of self‑defence lodged by Mr Copolo. That is evidence of a calculated act of self-defence. But it is not evidence which could support a plea of provocation.”
[16] Mr Crowe submitted that the trial judge had been wrong to conclude that the evidence could not support a plea of provocation. The conditions which must exist to permit a plea of provocation to be sustained were: that the accused must have been attacked physically or believed he was about to be attacked and reacted to that; he must have lost his temper and self-control immediately; he must have retaliated instantly and in hot blood; and the violence used in retaliation must be proportionate to the violence faced.
[17] Mr Crowe submitted that on the appellant’s evidence, even if self-defence was not established to the jury’s satisfaction, they would still have been entitled to conclude that each of the requisite conditions for the plea of provocation was present. He reminded us that this was not a case of an unprovoked attack. On the contrary, it was accepted that the complainer went to the locus to remonstrate with the appellants. He submitted that loss of control was a matter which was capable of being inferred from the evidence which established that the first appellant struck the complainer about the head with a hammer and that matters of loss of control, acting in hot blood and proportionate response were not matters which should be weighed too finely. In these circumstances he submitted that the trial judge had a responsibility to direct the jury on the question of provocation and to leave them with the option, if satisfied that provocation had been established, of finding the appellant guilty of assault, with appropriate aggravations, rather than an attempted murder.
Second appellant
[18] The submission presented on behalf of the second appellant by Mr Moggach was short and well-focused. He drew our attention to pages 41 and 42 of the trial judge’s charge in which it had been made plain that there was no corroboration of the evidence given by Alannah Duthie concerning a direct assault by the second appellant on the complainer. Accordingly, as the trial judge had said, the only basis upon which a conviction could be returned against her was if the jury came to be satisfied that she was acting in concert with the first appellant. He drew our attention to page 42 of the transcript of the charge where the trial judge said the following:
“Now the only… the evidence from Alannah of Joanne Mitchell striking the accused, as I say, is not enough to convict her of that attack because it’s not corroborated but it does provide one piece of evidence that she participated in the attack as a whole. If you don’t accept that evidence from Alannah as credible and reliable on that point, then you go no further. You acquit her.
If you do accept Alannah’s evidence on that point as credible or reliable, then you’re looking for something else, some evidence from another source to corroborate or confirm the Crown case that she was involved in the attack and should be found guilty on the basis of concert.”
[19] Mr Moggach submitted that the only evidence given by Alannah Duthie which was relevant for these purposes was that she had seen the second appellant strike the complainer with a piece of wood. In finding the second appellant guilty the jury deleted the averment of striking with a piece of wood. Accordingly, they must have rejected the witness’s evidence on this matter and in compliance with the direction given ought then to have acquitted the second appellant.
Crown
[20] The advocate depute took no issue with the basis of the plea of provocation as described by Mr Crowe or with the authorities relied upon by him. She submitted that in the present case the two requirements of loss of control and an absence of grossly disproportionate violence could not be met. She relied upon the trial judge’s description of the first appellant’s conduct as being a calculated act of self-defence, although she did accept that on one view it would be appropriate to describe conduct such as striking another over the head with a hammer as reflecting a loss of control. The advocate depute relied upon the extent of the complainer’s injuries as described by the trial judge in his report as set against the absence of any injuries on the part of the first appellant and submitted that this comparison demonstrated that whatever else the first appellant had acted in a grossly disproportionate manner. In all of these circumstances she submitted that the trial judge had been correct to conclude that provocation did not arise on the evidence led and he had therefore been correct to omit the directions under discussion.
[21] In relation to the second appellant, the advocate depute submitted that there had been a sufficient body of evidence to entitle the jury to conclude that she had been acting in concert with the first appellant, even putting aside the evidence of Alannah Duthie. The complainer’s evidence would establish that the appellants were together when they met him and that she had been the first to engage in a confrontation. It would also establish that she had distracted him in order to permit the first appellant to strike him. On the evidence of Kelly Duthie the second appellant was seen to be standing close to where the complainer was lying on the ground as he was being struck. Whilst her initial evidence in court had been that the second appellant did not do anything the advocate depute drew our attention to page 6 of the trial judge’s report concerning this appellant where he set out the evidence given by Ms Duthie. He there explained that when she was referred to the tape recording of the 999 call which she had made to the police she spoke of both appellants assaulting someone. The advocate depute reminded us that Ms Duthie also described each of the two complainers walking away together back in the direction of their flat as the first appellant was putting a hammer up the sleeve of the top which he was wearing. She also submitted that the second appellant could be seen to have been the one who controlled the length of the attack by bringing it to an end when she told the first appellant “that’s enough”.
[22] In these circumstances the advocate depute submitted that the jury had been entitled to return the verdict which they did, although she made no submissions concerning the trial judge’s direction relied upon by Mr Moggach.
Discussion
[23] In MacDonald on the Criminal Law of Scotland (5th ed), p 94 the defence (as he calls it) of provocation is stated to be of this sort:
“Being agitated and excited, and alarmed by violence, I lost control over myself, and took life, when my presence of mind had left me, and without thought of what I was doing.”
[24] That definition has been approved of on a number of more recent occasions, for example Cosgrove v HMA, 1990 JC 333 and Low v HM Advocate1994 SLT 277. In the context of a charge of attempted murder the effect of provocation, if established, is to require a verdict of guilty of assault to severe injury under provocation - Brady v H.M. Advocate [1986] JC 68
[25] In the present case no dispute arose as to any of these matters. In light of this the parties were also agreed that the practical effect was that there were four components of the plea of provocation which required to be present before it could be given effect to:
- An accused must have been attacked physically, or believed he was about to be attacked and he must have reacted to that;
- He must have lost his temper and self-control as a consequence;
- He must have retaliated instantly in hot blood, or in other words without having time to think;
- There must be some equivalence between the retaliation and the provocation so that the violence used by the accused is not grossly disproportionate to the violence constituting the provocation.
[26] In the present case the Crown accepted that, on the defence evidence, the jury would have been entitled to conclude that the complainer initiated the attack. The contention was that there was no evidence to support a finding that the first appellant had lost self-control as a consequence of what the complainer did to him and that the first appellant’s conduct, even on his own account of matters, was grossly disproportionate to any violence which the jury might conclude had been displayed towards him. The advocate depute declined to accept the suggestion that if self-defence had been rejected by the jury they would still have been entitled to look at the matter afresh and infer loss of control. She sought to support her position by relying on the view expressed by the trial judge in his report that the account given by the first appellant was evidence of a calculated act of self-defence.
[27] In the case of Ferguson v HM Advocate the court examined the scope of a trial judge’s duty in charging a jury to explain the possible alternative verdicts. The court adopted the approach of the House of Lords in R v Coutts [2006] UKHL 39. In doing so the court drew attention to the observations of Lord Bingham of Cornhill as reported at paragraph 12 of that decision:
“In any criminal prosecution for a serious offence there is an important public interest in the outcome: R v Fairbanks [1986] 1 W.L.R. 1202, 1206. The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge.”
The court also drew attention to what Lord Bingham went on to say at paragraph 23:
“The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support…”
[28] In the case of Ferguson the court concluded that while, on the view taken by the jury, the stabbing was undoubtedly a deliberate attack, that in itself did not necessarily give rise to the inference of murderous intent and nothing else. In those circumstances the court concluded that a direction should have been given on the alternative verdict of culpable homicide.
[29] In the present case the first appellant’s position was one of self-defence. However, it has often been observed that the facts relied upon to support a plea of self-defence usually contain a strong element of provocation, and the lesser plea may succeed where the greater fails – see for example the opinion of Lord Justice-General Cooper in Crawford v HM Advocate 1950 JC 67 and the opinion of Lord Grieve in Jones v HMA 1989 SCCR 726. Although not referred to at the hearing before us, we have found it helpful to take account of the decision of the court in Shepherd v HM Advocate [2009] HCJAC 98 in which the trial judge’s decision not to give directions on provocation resulted in a successful appeal against conviction. In that case the appellant was charged with murder and gave evidence in support of his special defence of self-defence. The deceased was killed in the gents’ toilet of a bar in Glasgow as a result of sustaining 10 stab wounds to various parts of his body. The appellant had no injuries. Whilst the issue of provocation was raised in defence counsel’s speech the trial judge directed the jury that provocation was not available on the evidence.
[30] In Shepherd the Crown’s contention was that the evidence demonstrated that the appellant had left the public house for the purpose of purchasing a knife which he then returned to the premises with, having placed the knife in the waistband of his trousers. CCTV footage showed that after his return he followed the deceased into the gent’s toilets and it was contended that he there used the knife he had obtained to deliberately stab the deceased repeatedly. The appellant’s evidence was that he had left the public house to purchase some tent pegs in advance of a camping trip and that when he returned to the public house he had gone into the toilet area without knowing that the deceased was there. Without warning the deceased came up behind him in the toilet area, put his hand around the appellant’s throat and swung at him with a knife. The appellant explained that there was then a struggle during which they fell to the floor with each of them trying to retrieve the knife which had fallen onto the ground. The appellant gave evidence that he managed to come across the knife with his free hand and jabbed with it across his shoulder at the deceased who was still on the floor behind him. The deceased then came over the top of him so that the two were lying on their sides face-to-face and the appellant was again able to lash out a few more times with the knife striking the deceased in the back. After one of such blows the deceased’s body loosened and the appellant was able to get up and leave.
[31] The trial judge in Shepherd described the appellant’s evidence as being an account of a desperate attempt to protect himself in which both parties were engaged in a constant struggle, most of which took place on the toilet floor. He explained that if that account was sufficient to raise a reasonable doubt in the minds of the jurors as to the appellant’s guilt they would have acquitted him but that he did not see how, other than by resorting to speculation, they could identify a different set of facts which would establish that the appellant, rather than defending himself, had been acting under provocation.
[32] In giving its decision, at paragraph 18, the court explained that the jury was not necessarily bound to accept that the appellant’s actings as described by him fell to be categorised as self-defence. They went on to say the following:
“In our view, they would have been entitled to conclude, as a matter of reasonable inference, not speculation, that, having retrieved the knife, the appellant proceeded to use it to stab the now-deceased in the heat of the moment having lost control of himself.”
[33] Having referred to the requirements for the plea of provocation as given by MacDonald the court went on to say the following:
“We consider that the jury were at liberty to select from the appellant’s evidence, those parts that they could accept and to reject other parts of it. To the extent that it was specifically represented to the jury by the appellant that he had acted in self-defence, the jury were at liberty to reject that. However, they were also at liberty to accept the appellant’s account of the attack made upon him and of what he did thereafter as a fact. Upon that basis, it appears to us that the jury would have been entitled reasonably to infer that the appellant’s actions fell within the graphic description given by MacDonald.”
Having so concluded, the court held that the trial judge had misdirected the jury by withdrawing the issue of provocation from them.
[34] The first appellant also relied upon the case of Duffy v HM Advocate in which the appellant was charged with assault to severe injury, permanent disfigurement and danger of life by stabbing the complainer with a knife. The case of Duffy concerned an incident in which the appellant and the complainer each began fighting in the street, having been asked to leave licensed premises. The only evidence as to what occurred during the course of the fight came from the complainer and from CCTV footage of the incident. The appellant did not give evidence but had intimated a special defence of self-defence. No mention was made of provocation in closing speeches, nor by the presiding sheriff. In his report the sheriff explained that he did not do so because no such direction had been sought and for him to have done so would have been to invite the jury to consider an issue not put to them upon which they had not had any submissions. He also expressed doubts as to whether the evidence was capable of supporting the four qualifying circumstances of provocation.
[35] The court in Duffy reiterated the statement that the judge’s function when charging the jury is not fenced by the way the case is presented by both or all parties. It explained that it is for the judge to give the jury such directions in law as were necessary for their guidance on a reasonable view of the evidence (paragraph 21). The court then stated, at paragraph 22, that:
“Applying the approach set out in Ferguson, it is our opinion that only if a court were able to conclude that no reasonable jury could, on the evidence, reach the view that there was provocation, should directions on provocation be omitted.”
In Duffy the only issue which concerned the court was gross disproportionality. It was satisfied that there was evidence which, if accepted, could satisfy the other three requirements of provocation. Given the absence of evidence from the accused in that case it would seem that, as in Shepherd, the court envisaged the jury proceeding on the basis of inference, particularly in addressing the questions of whether the accused lost his self-control and acted in hot blood.
[36] Applying these considerations to the circumstances of the present case, we consider that the jury were at liberty to select from the appellant’s evidence those parts that they could accept and to reject other parts of it. We consider that the jury were at liberty to reject his account of self-defence but were also entitled to accept the appellant’s account of the attack made upon him and of what he did thereafter as a fact. Whilst the trial judge categorised the appellant’s evidence as a calculated act of self-defence, we do not consider that the jury were bound to reach the same conclusion. In our view, if the jury rejected the appellant’s evidence of acting in self-defence, which they must have done, they would have been entitled to look at the matter afresh. In so doing the jury would have been entitled to accept the appellant’s account of being struck twice on the head with a bat and of thereafter being attacked by the complainer in possession of a hammer. They would have been entitled to accept that, having acquired the weapon, the appellant struck the complainer with it and they would have been entitled reasonably to infer that in doing so his conduct fell within the description given by MacDonald.
[37] Although there was differing evidence as to the number of blows struck by the appellant with the hammer, we do not consider that the difference between the violence which the appellant accepted inflicting and the level of violence which he described being subjected to was so great that the jury would have been bound to have concluded that his response was grossly disproportionate.
[38] In the whole circumstances we cannot conclude that no reasonable jury, on the evidence available, could have reached the view that the appellant was acting under provocation. In these circumstances we accept the submission made on the appellant’s behalf that the trial judge ought to have given directions on provocation and left open to the jury the opportunity of returning a reduced verdict on that basis. The advocate depute did not suggest that if we were to be of this view it could nevertheless be said that no miscarriage of justice had occurred.
[39] We are satisfied in the circumstances of the present case that there was a misdirection by omission and that the misdirection did constitute a miscarriage of justice. Subject to what we say below, we are minded to quash the first appellant’s conviction for attempted murder.
[40] In relation to the second appellant, we shall proceed upon the basis that the only direct evidence of her participating in an assault came from the witness Alannah Duthie. We accept that the advocate depute was correct to draw our attention to what the trial judge said at page 6 of his report concerning the content of the recording of the 999 call made by this witness’s mother. It is not though sufficiently clear what the content of this recording was, nor what Kelly Duthie’s reaction was on being referred to it. As noted above, the trial judge directed the jury in relation to the second appellant that the only direct evidence of her assaulting the complainer came from Alannah Duthie.
[41] We are not persuaded though that Mr Moggach’s submission on the inference to be drawn from the terms of the verdict returned is sound. In our opinion the deletion can be read as meaning no more than that the jury were not persuaded that the second appellant struck the complainer with any, or any particular, weapon. The verdict remains consistent with the jury being satisfied that the second appellant struck the complainer and was acting in concert with the first appellant when she did so. We are not persuaded that the single point advanced is sufficient to allow us to conclude that the jury ignored the clear directions which the trial judge gave them at page 42 of his charge, as quoted in paragraph [19] above.
Disposal
[42] Having reached the conclusions which we have identified we turn to the issue of how to dispose of this appeal. So far as the first appellant is concerned there appear to us to be two options: first, that the conviction should be quashed and authority granted to the Crown to bring a fresh prosecution; and second that the first appellant’s conviction should be quashed and a conviction for assault to severe injury, permanent disfigurement, permanent impairment and to the danger of life should be substituted for it. No doubt both parties will wish an opportunity to consider which course they would commend to the Court. It may also be that the submissions presented in relation to how to dispose of the appeal for the first appellant impact upon the second appellant. It might, for example, appear curious that the conviction in respect of the first appellant should be quashed and yet the conviction in relation to the second appellant, of acting in concert with him, should remain in place. Accordingly following the issuing of this opinion to parties in accordance with paragraph 3 of Practice Note (No 2 of 2014), the appeal will be put out for advising in order that parties may indicate to the court what course they wish to follow.