APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Wheatley Lord Bracadale	[2009] HCJAC 87 Appeal No: XC191/04 OPINION OF THE COURT delivered by LORD WHEATLEY in APPEAL AGAINST CONVICTION by ADELE EARLY Appellant; against THE LORD ADVOCATE Respondent: _______

Act: Shead, Mason; B.C.K.M, Edinburgh

Alt: Allan, QC, AD; The Crown Agent

27 November 2009

[1] The appellant was convicted of a charge of murder by a majority verdict of the jury in Perth High Court on 12 April 2000. The victim had been the appellant's partner for some three years prior to the end of 1998. The relationship had been difficult, and after the separation the appellant had obtained a Sheriff Court interdict against the deceased from molesting her or calling at her home. However, there appeared to be some form of continuing contact between them.

[2] In the course of 16 December 1999 the deceased and the appellant had gone shopping together in Perth, together with their young child. At about 2.00 am the following morning the appellant came out of her house in a hysterical condition, and advised her neighbour that she had killed the deceased. The police were summoned and found the deceased lying dead in the hall. He had received six major stab wounds, three to the chest, including one through the heart, and three to the back and sides. There was also a number of prick injuries to the back which had been inflicted after death. The police officer found a broken knife covered in blood at the scene. The appellant at no time denied that she had been responsible for the deceased's injuries, but maintained that she had been acting in self-defence. In evidence at her trial she said that the deceased was drunk, that they had fallen asleep on separate sofas, and that she had awakened to find him having sexual intercourse with her. When she resisted, he flew into a temper and assaulted her with a hammer. It is clear that following the incident, the appellant had injuries to her head and body which may not have been inconsistent with her account. Unfortunately, the police surgeon who examined these injuries was unable to attend the trial through illness, and thus affirm or refute the appellant's claim. It appeared that the first time the appellant mentioned that she had been struck by a hammer was at the trial, and no hammer was recovered. She then stated the deceased had armed himself with a knife, and in ensuing struggle she managed to get it off him. and in the course of the continuing conflict she stabbed him.

[3] Two weeks after her conviction, the appellant intimated her intention to appeal against her conviction and sentence. However, no Note of Appeal was lodged on her behalf and her appeal was therefore deemed to have been abandoned. Subsequently, new agents were appointed and a Note of Appeal against conviction was lodged on 9 August 2004. There then followed what must now be regarded as the all too common and deplorable delay in processing the appeal, with the customary large numbers of futile procedural hearings, that are also all too common, before a hearing on the appeal was fixed. In the event, the only arguments presented at the appeal were directed to what were said to be deficiencies in the judge's charge; these could have been identified at the outset of the appeal process some five years ago. In the meantime, the appellant was granted interim liberation on 12 January 2005, and has been at liberty for nearly five years waiting for her appeal to be heard.

[4] When the written note of argument for the appellant was eventually lodged (at least two and a half months after it was originally ordered to be produced) it contained submissions relating to three Grounds of Appeal. The first has been abandoned some time ago, and the second was abandoned shortly before the appeal hearing. The third Ground of Appeal supported in the written submissions was concerned with criticisms of certain aspect of the trial judge's charge. It alleges that the trial judge's directions on provocation were inadequate and confusing, and that the jury should have been directed to consider whether the ordinary woman, having been provoked, would have been liable to react as the appellant had done; that the directions given were apt to suggest that the appellant's reaction to the provocation had to be reasonable; that the judge did not direct the jury on the evidence on which they could rely to support the plea of provocation; that the jury should have been told that, if the evidence relating to provocation raised a reasonable doubt in their mind about whether the appellant had the necessary criminal intent to commit the crime of murder, then the proper verdict ought to have been one of culpable homicide; and finally that the directions given should have made it clear that, if provocation had been established, the jury were required to return a verdict of culpable homicide rather than regard such a verdict as a possibility.

[5] As counsel for the appellant presented and developed his submissions, the basis of the Ground of Appeal altered, and at the end of the day his criticism principally focused on aspects of the first statement in the relevant Ground of Appeal, to the effect that the directions given to the jury about how they should approach the issue of provocation were inadequate and confusing, and also that the judge's charge, where it touched on the question of provocation raising a reasonable doubt, were wrong. The remaining statements in the Ground of Appeal were either departed from, or can be dealt with briefly.

[6] In the course of his submissions, counsel for the appellant accepted that the test of how the ordinary man or woman would react to having been provoked, in assessing whether the accused was guilty of murder or culpable homicide, had no application to the present case. The original argument had been based on the case of Drury v HM Advocate 2001 SLT (J) 1013, decided after the conviction in the present case, to the effect that the test which the jury should have been asked to apply in considering the issue of provocation, involved an assessment of whether, in the circumstances, the ordinary man or woman, having been provoked in the manner suggested, would have reacted as the accused did in the instant case. The court in Drury emphasised first that the mens rea of murder required a wicked intent to kill, and secondly that a person who kills under provocation is to be convicted of culpable homicide because, even if he intended to kill his victim, he does not have the wicked intention which is required for murder (see Lord Justice General at para [20]). The court went on to conclude that the concept of proportionality had no application to provocation in a case where it consisted of the discovery of sexual infidelity. Rather, the court decided that the appropriate test for the jury in such a case was that, should they come to the conclusion that the accused had indeed lost his self control owing to provocation, they should ask themselves whether an ordinary man, having been thus provoked, would have reacted as the accused did. Accordingly the court concluded that the standard reference in charges to the jury in murder cases, to the effect that violence which was disproportionate to the provocation offered would not reduce the charge to one of culpable homicide, was in the circumstances of that case inappropriate. The court reserved its opinion as to the law that might apply to other forms of provocation.

[7] Subsequently in Gillon v HM Advocate 2007 JC24; 2006 SCCR 561, the trial judge had directed the jury that there must be a reasonable relationship between the provocation and the actions of the accused in responding to it ("the proportionality test") which was in accordance with existing law (Robertson v HM Advocate 1994 SCCR 589). The court held that, in cases where the provocation consisted in violence rather than sexual infidelity, then the proportionality test, which was well established and clearly understood, should continue to apply. As counsel in the present case, following discussion, accepted that the foregoing reflected the correct state of the law in this area, the second and third sentences in the third Ground of Appeal fell to be disregarded.

[8] Further we did not did we consider there to be any force in the appellant's contention, in the fourth and fifth sentences in the third Ground of Appeal, that the judge did not direct the jury as to the evidence in which they could rely to support the plea of provocation, and that this was unfair standing the Crown's position before the jury that there was no such evidence. There is of course no duty on a trial judge to discuss the evidence with the jury at all. However, reading the charge as a whole, the jury can have been left in no doubt about the evidence which they would require to consider in the context of a plea of provocation. It was clearly the same evidence that had to be considered in relation to the question of self-defence, which was fully put before the jury by the trial judge, and it would not have been helpful for the trial judge simply to repeat that evidence when he was dealing with provocation. There is no complaint about the way in which the trial judge presented the evidence on self‑defence, nor could there be. Nor do we think that there is any substance in the remaining argument in the penultimate sentences of the third Ground of Appeal that the jury should have been directed that they required to return a verdict of culpable homicide rather than, as it was argued, leaving that verdict merely as an option. What the judge said in his directions was that, if the jury was satisfied that provocation had been established, they "could" bring in a verdict of culpable homicide. The appellant's argument was that the jury should have been advised that in such circumstances they had to bring in such a verdict. Again, reading the charge as a whole, we have no doubt that the jury would understand perfectly clearly that, if they thought that the plea of provocation was sound, they required to return a verdict of culpable homicide.

[9] This leaves the two remaining issues raised in the third Ground of Appeal. The first is whether the trial judge erred in law in directing the jury as he did on the proper approach they had to take to the question of provocation as it affected their verdict on the charge of murder. The correct approach is to tell the jury that if the question of provocation raises a reasonable doubt in their mind about whether the accused has the necessary wicked intent to commit the crime of murder, then they should acquit of murder and convict of culpable homicide. This is because provocation by its nature is such that, although the accused may have intended to kill the victim, the provocation offered removes the element of wilful or reckless conduct necessary for murder to be established. It is also necessary to advise the jury that once the issue provocation (or self-defence) is raised by the defence, then the responsibility remains with the Crown to refute such pleas. In the present case counsel for the appellant submitted that the trial judge in his charge had given the jury the impression that they could only consider the question of provocation, and its consequences, after they had been satisfied that the evidence otherwise established that the crime of murder had been committed, an approach which is incorrect (see e.g. Drury v HM Advocate per Lord Justice General at para. [17]). Had this been truly the case here, then this part of the Ground of Appeal would have been made out. But in our view the only justification offered for this conclusion was that the trial judge approached these issues in the conventional order, and discussed the question of provocation at the end of his charge, after he had defined the crime of murder and discussed the questions, among others, of reasonable doubt and self‑defence. We do not think that the jury would have failed to understand, reading the charge as a whole, that before convicting the appellant of murder, they would have to be satisfied they had no reasonable doubt about any issue raised in the case, and in particular about whether they could return a verdict of murder beyond reasonable doubt in the face of an averment of provocation by the appellant.

[10] It is true that the trial judge said (at page 18C of his charge) that if the jury were otherwise to convict of murder, but were satisfied that the accused was provoked, they could bring in a verdict of culpable homicide, but he also made it clear, from the outset of his directions, that it was for the Crown to prove the case against the accused and that this burden rested with the prosecution throughout the trial, even when the defence raised matters which suggested an alternative view. The responsibility of the judge is to use his discretion in laying out his charge in such a way that the jury can more readily understand the issues they have to decide. It is difficult therefore in our view to criticise the judge for the order in which he presented his directions to they jury, particularly as here where counsel for both sides appear to have mentioned provocation almost as an afterthought. Although it might be desirable in some cases to link the question of provocation more directly to the direction that the burden of proof remained with the Crown throughout the trial, we have no doubt that in the present case the jury would understand that they could not convict the appellant of murder, rather than culpable homicide, if they thought that she had been provoked.

[11] This leaves the question, referred to in the first sentence of the third Ground of Appeal, as to whether the directions given by the trial judge to the jury on the definition of provocation were inadequate and confusing. It is true that the relevant part of the charge is not presented to the jury with the degree of clarity which might be expected. What the trial judge said (page-18 of the charge) was this:

"...if you are satisfied that there was a provocative act which led to what the accused did, again you have to be satisfied not in the same balance that applied to self-defence but you have to be satisfied that she did not go far beyond what would be reasonably provoking reasonable reaction to a provocative act and, again that's entirely a matter for you".

As we have indicated earlier in this opinion, what was held in the case of Gillon v HM Advocate was that the proportionality test in a case of this kind involved a comparison between the violence constituting the provocation and the violence used in retaliation, and that these must be broadly equivalent. Put another way, there must be no gross disproportion between the violence implied by the accused, and the violence which prompted it. It was clearly this correct definition of the nature of provocation in a case such as this that the trial judge had in mind when he addressed the jury in the terms cited. While the syntax of the passage in question is not faultless, it is in our view clear that the judge did convey correctly to the jury the essentials of how provocation should be assessed. In particular, in employing the phrases "you have to be satisfied that she did not go far beyond what would be reasonably provoking" and "reasonable reaction to a provocative act", the trial judge conveyed, albeit in a somewhat clumsy fashion, the essence of what the jury had to be satisfied about if they were to find that provocation had been established.

[12] In all the circumstances therefore we do not think that the appellant has established in terms of the final ground of appeal that there has been misdirection amounting to a miscarriage of justice, and we therefore refuse the appeal.