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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Lieser v. Her Majesty's Advocate [2008] ScotHC HCJAC_42 (25 July 2008) URL: http://www.bailii.org/scot/cases/ScotHC/2008/HCJAC_42.html Cite as: [2008] HCJAC 42, 2008 SCL 1050, [2008] ScotHC HCJAC_42, 2008 SCCR 797, 2008 SLT 866, 2008 GWD 26-412 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
Lord Kingarth Lord Eassie Lord Marnoch |
[2008] HCJAC 42Appeal No: XC567/04OPINION OF THE COURT delivered by LORD KINGARTH in NOTE OF APPEAL AGAINST
CONVICTION AND SENTENCE by JAMES LIESER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Shead; Lindsays
Alt: McCallum, A.D.; Crown Agent
[1] On
[2] The
circumstances surrounding the death of the deceased, and the evidence on which
the Crown sought to rely, are fully set out in the report of the trial judge. It is enough for present purposes to record
that the Crown sought to rely on evidence that prior to
[3] The appellant
did not dispute that he had stabbed and killed the deceased, but claimed he was
acting in self-defence. It was his
position that, contrary to the evidence relied on by the Crown,
prior threats had been made by the deceased to him. The deceased and his brother were members of
a gang known as the YPR (Young Parkhead Rebels). On the relevant day he was in the kitchen of
the flat using a knife to help himself to some
cannabis when he heard a knock at the door.
The door started going back and forward and he thought that Kevin Leitch
was getting robbed or something. He then
heard a voice saying, "Lieser's fucking getting it". He walked to the door, the knife in his
hand. The door burst open. Kevin Leitch came in backwards and the deceased
came towards the appellant. The
appellant went towards the deceased. The
appellant felt threatened by the deceased, who was taller than him, and was
standing over him, and he thought that the deceased was going to stab him.
[4] As the trial
judge informs us, the solicitor advocate then representing the appellant did
not suggest to the jury that the deceased in fact had a knife at the time, but
rather the submission was that the appellant believed that he did and that he
held that belief on reasonable grounds.
In that connection the jury's attention was drawn to the appellant's
position as summarised above.
[5] In his charge
to the jury the trial judge gave certain basic directions as to the crime of
murder in terms which were not the subject of any criticism before this
court. In the course of these directions
he said:
"Now, murder is constituted by any
wilful act causing the destruction of life, whether the perpetrator wickedly
intended to kill or displayed such wicked recklessness as to imply a
disposition depraved enough to be regardless of the consequences. So the Crown must prove that the killer acted
with either a wicked intention to kill or with wicked recklessness which showed
that he was utterly regardless of the consequences."
He further directed the jury that
they were bound to acquit the appellant if they were satisfied that he acted in
self-defence or if they were left with a reasonable doubt as to that. He directed them that they could convict of
the lesser offence of culpable homicide inter
alia on the basis that they were satisfied that he had acted under
provocation or if they were left in reasonable doubt as to that. The terms of his directions followed conventional
lines in each respect and it is unnecessary to rehearse them in detail. It is enough to record that in the course of
his directions relating to self-defence he said:
"However where self-defence is raised
there are limits to its application.
First of all, there must be imminent danger to the life or limb of the
accused, or at least, and I think this is the approach taken in this case, the
accused must have believed that there was such imminent danger and that belief
must have been based on reasonable grounds, even if it was mistaken. So there are two stages. You have to ask yourself do you believe the
accused when he says he believed that he was in imminent danger? Secondly, if you do, on the evidence was it
reasonable for him to believe that ...".
Later in relation to the question of "cruel excess" he said:
"By way of example, to illustrate the
approach to this question, if a man was struck by a blow by another man with a
fist, with a punch, that could not justify retaliation by the use of a knife
because there is no real proportion at all between a blow by a fist and the use
of a knife. On the other hand, if a man
genuinely believed that he was under attack from another man with a lethal
weapon and had reasonable grounds for believing that, even if wrong, and he
retaliated using a weapon then you might take the view that there was a
reasonable proportion between the attack made and the retaliation offered."
In relation to provocation, the trial judge directed the jury
inter alia:
"That description raises a number of
requirements before provocation could apply.
The first is that the accused must have had a reasonable belief that he
was under a physical attack."
Before us
counsel for the appellant presented argument in support of two separate, but
related, grounds of appeal. The first is
that the trial judge misdirected the jury in relation to self-defence. In that connection ground 1 of the Note
of Appeal reads:
"In particular it was an error to
direct them that the belief entertained by the accused had to be based on
reasonable grounds. It is submitted
that, since the crime or murder is one of intention, there is no reason why a
genuine belief that one is acting in self-defence should not be a defence
however that belief is arrived at."
The second ground of appeal argued is that the trial judge
misdirected the jury in relation to provocation. Ground 2, in particular, reads:
"... it was a
misdirection to suggest that the appellant had to have a reasonable belief that
he was under attack. Reference is made
to ground 1. By parity of reasoning
it is submitted that the belief only had to be genuine."
Counsel for
the appellant accepted that the directions given by the trial judge in respect
of these matters were consistent with the position which has been expressed in
a number of earlier authorities.
Reference in particular was made, in relation to self-defence, to Owens v HM Advocate 1946 JC 119 and, in relation both to self-defence and
provocation, to Jones v HM Advocate 1990 J.C. 160. Neither of these cases should be regarded as
binding, since the particular question in issue was not fully argued. In any event, for that reason, they could not
be regarded as soundly based in light of more recent authority. In particular it was now clear from the analysis
of at least four members of the five judge bench in Drury v HM Advocate 2001 SCCR 583 that whereas hitherto self-defence and provocation had been
regarded as defences or exceptions to what otherwise would be murder, they
properly fell to be considered as part of the question of whether an accused
could be said to have had the necessary mens
rea, in particular the necessary "wickedness", even where an accused
intended to kill. Reference was made to
the opinion of the Lord Justice General (Rodger) at page 589 (para.11), Lord
Johnston at page 609 (para.18), Lord Nimmo Smith at page 611 (para.2),
and Lord Mackay of Drumadoon at page 614 (para.2). The suggested modification of the traditional
definition of murder, based on Macdonald's
Criminal Law (5th ed. p.89), by the insertion of the word
"wickedly" before "intended to kill" had been correctly followed by the trial
judge in the present case. Although the
question before the court in Drury
related to how the response of an accused, provoked not by violence or by threats
of violence but by discovery of sexual infidelity, fell to be tested, it was
clear that the conceptual analysis of murder (and the place of self-defence and
provocation within it) was essential to the answer given by the court. Reference in particular was made to the opinion
of the Lord Justice General at page 587 (para.8) and to that of Lord
Mackay of Drumadoon at page 614 (para.2).
The analysis of the court in Drury
was not questioned subsequently by the bench of five judges in Gillon v HMA 2006 SCCR 561 (particular reference being made to paragraph
24 of the Opinion of the Court), albeit the court was not persuaded that there
was any need to interfere with the traditional understanding of the requirement
for proportionality in the response of an accused provoked by physical
violence. Given that the proper focus in
questions of self-defence and provocation was on the mens rea of the accused, there was no reason in principle, in cases
of mistaken belief as to violence offered, to consider any more than whether
that belief was genuine. The existence
of reasonable grounds would be relevant only to the jury's assessment of the
credibility and reliability of the accused's position. The appellant's arguments were afforded
assistance, at least in principle, by the decision of the court in Jamieson v HM Advocate 1994 JC 88, where it was held, agreeing with certain
observations in Meek v HM Advocate 1982 S.C.C.R. 613, that an accused
who held a genuine but mistaken belief that the complainer was consenting could
not be guilty of rape. In these
circumstances it could be said that the trial judge had misdirected the jury in
material respects, and the appeal should be allowed, or at least the court should be
persuaded to convene a larger bench to reconsider the earlier authorities.
[6] The Advocate
depute submitted that it could not be said that the trial judge had misdirected
the jury in either of the respects suggested.
His directions were in accordance with longstanding authority. The expressions of view in the cases of Owens v HM Advocate and Jones v HM Advocate were, as was apparently
accepted, part of the ratio of the court's decisions and were binding on the
court as presently constituted. In the
latter case the charge to the jury by Lord Strachan as reported in McCluskey v HM Advocate 1959 JC 39 was specifically approved. Reference was also made to the observations
of the Lord Justice General (
[8] In Owens v HM Advocate Lord Justice General Normand, who delivered the Opinion
of the Court, said (at page 125):
"In our opinion self-defence is made
out when it is established to the satisfaction of the jury that the panel
believed that he was in imminent danger and that he held that belief on
reasonable grounds."
In that case the position of the appellant, whose appeal
against a conviction for murder succeeded on the basis of a misdirection by the
trial judge, was that he believed, on grounds apparently supported by other
evidence, that the deceased had had what appeared to him to be a knife in his
hand.
[9] In Jones v HM Advocate, another appeal against conviction for murder where the
appellant's position was that he believed the deceased had had a knife, it was
held by the court (and apparently accepted on all sides) that the trial judge
had misdirected the jury (a) in relation to self-defence by failing to direct
the jury in accordance with Owens v HM Advocate (albeit it was held that
that had not, in the circumstances, led to a miscarriage of justice) and (b) in
relation to provocation by not leaving it open to the jury to consider that the
appellant was provoked in circumstances where he believed, albeit mistakenly,
that the deceased had a knife and where his belief was based on reasonable
grounds. As to the former the Lord
Justice-Clerk Ross said (at pages 171 to 172):
"In my opinion, if the question of
self-defence was to be left to the jury, it was incumbent upon the trial judge
to direct the jury on the lines approved in Owens
v HM Advocate. An example of appropriate directions to be
given on the issue of self-defence may be found in McCluskey v HM Advocate 1959 JC 39. In charging the jury in that
case Lord Strachan said (at pages 39 to 40): 'Before you could find that the accused was
justified in killing Ormiston (the deceased) you would have to be satisfied
that he struck the fatal blow for his own protection and to ward off danger to
himself, either danger which was actually threatened or danger which might
reasonably be anticipated by him. It
would not be necessary to find that there was actual danger to the
accused; you could uphold special
defence, subject to what I am going to say in a moment, if you were satisfied
that the accused believed that he was in danger and if you were also satisfied
that he had reasonable grounds for so thinking.'"
In this respect he was fully supported by the other members
of the court. As to the latter, the Lord
Justice-Clerk accepted submissions on behalf of the appellant that the
directions by the trial judge on provocation amounted to a
misdirection
"since they
required the jury to determine as a matter of fact whether the deceased
probably had a knife and did not recognise that provocation might be proved if
the appellant believed that the deceased had a knife and that his belief on
that was not unreasonable." (see page 173)
In the same case, in relation to provocation, Lord Wylie said
at page 175:
"On this ground of appeal the proper
test adumbrated in relation to proof of provocation was whether the accused,
given the circumstances in which he found himself, could reasonably have
thought that the victim had a knife, and was about to strike a blow with the
knife, or was about to strike a blow with any knife he may have had in his
possession."
Although we were not specifically
referred to Crawford v HM Advocate 1950 J.C. 67 it may also be
noted that the Lord Justice General (Cooper) said in that case at page 71:
"As regards the argument urged upon
us that the appellant rightly or wrongly thought that he was in danger of his
life and the reliance placed upon the case of Owens ... I
should like to say that, when self-defence is supported by a mistaken belief
rested on reasonable grounds, that mistaken belief must have an objective background
and must not be purely subjective or of the nature of an hallucination."
"In matters of homicide Scots law
admits the plea of provocation only within certain bounds which are
considerably narrower than those within which it operates in English law. In Scots law it applies only where the
accused has been assaulted and there has been substantial provocation. In English law, by contrast, even a slight
blow or mere jostling may be sufficient to admit the plea. In Scots law, no mere verbal provocation can
palliate killing. The same applied in
Given that deliberate and intentional attacks may be said to
be wholly justified on the basis of self-defence, while it is understandable
that allowance should reasonably be made for genuine mistakes of fact, it is
equally understandable that not every such mistake should be thought to be
capable of leading to exculpation. If it
were otherwise even an intentional killing would fall to be regarded as wholly
justified in circumstances where the accused's actions could be said to have
been prompted by gross recklessness. In
other words, an accused who intentionally killed in the mistaken belief that he
faced a grave attack on his person, would (assuming all other requirements for
self defence were met) be entitled to acquittal notwithstanding that he had
recklessly ignored matters which would have destroyed that belief, had he not
thus recklessly cast them aside; and his gross recklessness would go
without penalty.
[11] The foundation
for the appellant's contention that we should at least convene a larger court
to reconsider the earlier authorities is said to be the decision of the bench
of five judges in Drury v HM Advocate. There is, however, in our view, nothing in
the opinions delivered in that case which casts doubt on those earlier
authorities. The essential question
before the court, where the appellant claimed to have been provoked by the
discovery of sexual infidelity, was whether the trial judge misdirected the
jury in so far as he suggested that they required to measure
the degree of violence used by the appellant against the provocation offered. The court, in holding that the trial judge
had misdirected the jury, held that in such cases the essential question instead
should be whether an ordinary man, thus provoked, would have been liable to
react as the accused did. It is, of
course, as counsel rightly pointed out, clear that at least four of the bench
considered that self-defence and provocation were conceptually to be seen,
where relevant, as relating to the primary question of whether the accused
could be said to have had mens rea
for murder, in particular whether he could be said to have acted with the
necessary wickedness, rather than falling to be considered separately as, on
the one hand, a defence or, in the case of provocation, as something which could
"reduce" murder to culpable homicide.
But we see no reason to suppose that (save in relation to the particular
question which the court required to answer) it was intended to alter the
hitherto accepted and well-recognised boundaries of self-defence and provocation. It seems to us to be reasonably clear that
all the court was concerned to stress was that if an accused intentionally
killed in circumstances which the law would regard as meeting the requirements
of self-defence or, failing that, in circumstances in which the law would
regard him as having acted under provocation, he could not be said to have
acted with the necessary "wickedness" for murder, in the former case being
entitled to acquittal, in the latter to a verdict of culpable homicide. As counsel for the appellant before us
accepted, there are, and would remain, notwithstanding anything said in Drury v HM Advocate, a number of conditions which fall to be tested
objectively, either in whole or in part, in relation to both self-defence and
provocation. In relation to the former,
reference may be made to the requirement that there be no "cruel excess" in the
defensive action. In relation to the
latter, examples may be found in the need for immediacy in the provocation
offered, for a degree of loss of control and, in cases of provocation by
violence, for some proportionality in the response (reaffirmed in Gillon v HM Advocate, notwithstanding the conceptual analysis of murder
undertaken in Drury v HM Advocate - see especially para.30) or,
in the case of provocation by discovery of sexual infidelity, for a reaction
which goes no further than that to be expected of the ordinary man. Counsel certainly did not seek to advance
argument to the full extent of the proposition in the first ground of appeal
that "there is no reason why a genuine belief that one is acting in
self-defence should not be a defence, however that belief is arrived at." In these circumstances, in our opinion, it is
not to be supposed that the court in Drury
v HM Advocate envisaged any
alteration to the requirement that any genuine but mistaken belief in violence offered
must be based on reasonable grounds. The
cases of Owens v HM Advocate, Crawford v HM Advocate and Jones v HM Advocate were
not referred to at all.
[12] It is of course
true that, in relation to the crime of rape, the court in Jamieson v HM Advocate held
(affirming certain earlier observations in Meek
v HM Advocate) that an accused
who genuinely but mistakenly believed that the complainer was consenting could
not be guilty of rape, even if he had no reasonable grounds for such
belief. In particular the Lord Justice
General (Hope) said (at page 92):
"The crime of rape consists in the
carnal knowledge of a woman forcibly and against her will. Thus the mens
rea of this crime includes the intention to have intercourse with the woman
without her consent. The absence of a
belief that she was consenting is an essential element in it. If the man has intercourse with a woman in
the belief that she is consenting to this, he cannot be guilty of rape."
and later stressed (at p.93) that:
"The reason why, in rape cases, the
man's belief need not be shown to be based on reasonable grounds for his belief
to be relevant as a ground of acquittal is because of the particular nature of
the mens rea which is required to
commit the crime".
Of particular significance for present purposes, however, he
also said (at page 93):
"As the trial judge points out in his
report, there is ample authority that a person who claims that he acted in self-defence
because he believes that he was in imminent danger must have reasonable grounds
for his belief: Owens v HM Advocate; Crawford v HM Advocate; Jones
v HM Advocate. He suggests that Meek was inconsistent with this line of authority. As the Solicitor General conceded that there
was a misdirection in this case and that a direction
on the lines indicated by Meek was
appropriate here, we were not addressed to any extent on this point. We wish to say, however, that we are not to
be taken, from what we have said in this opinion, as casting any doubt on the
soundness of the dicta in those
cases. Nor are we to be taken as
suggesting that in any other case, where a substantive defence is based on a
belief which is mistaken, there need not be reasonable grounds for that
belief."
In these circumstances we do not consider that the case of Jamieson v HM Advocate can be said to afford any support for the appellant.
[13] The appeal against
conviction is therefore refused.
[14] The appeal
against sentence will be continued to be heard at a later date.