Man who claimed self-defence in knife attack despite denying having a knife loses appeal against attempted murder conviction

Lord Matthews
Lord Matthews

The High Court of Justiciary has refused an appeal against conviction by a man convicted of attempted murder made on the basis that he had a ‘jigsaw’ basis for a special defence of self-defence.

Aaron Dines, also known as Morrison, was sentenced to 8 years’ imprisonment for striking another man, MDN, with a knife to his severe injury and permanent disfigurement. He argued that, while his trial counsel had agreed with the judge that self defence did not arise, a case for it could be made out.

The appeal was heard by the Lord Justice GeneralLord Carloway, sitting with Lord Turnbull and Lord Matthews. The appellant was represented by C Findlater, advocate, and the respondent by solicitor advocate G Jessop.

Removed from consideration

The incident, which took place at a play park during an attempted drug transaction, left the complainer with three stab wounds to his abdomen, one to his thigh, and one to his right hand. One of the wounds to the abdomen penetrated the large bowel, necessitating surgery to save the complainer’s life. The appellant was later arrested on suspicion of attempted murder, at which time he stated: “It was me getting stabbed and it was just self-defence.”

A witness, DK, who had been with the complainer attempting to buy crack cocaine from the appellant, stated that the appellant had pulled out a breadknife with a blue handle and fought with the complainer. He could not say for certain whether he saw the complainer being stabbed but heard him shout that he had been during the struggle.

At the trial diet, during his own evidence, the appellant had denied using a knife or stabbing the complainer, or that he was a drug dealer. He said that the complainer had attacked him and demanded money from him, which the appellant owed him for drugs. He denied that he had brought a knife with him and that he did not know how the complainer had come by his injuries.

In his report, the trial judge stated that he raised the possibility of self-defence with defence counsel, who had agreed there was no basis for it. However, counsel did not withdraw the special defence in his speech to the jury. Rather than causing delay by disconnecting the jury and reminding him about it, he decided simply to direct the jury that self-defence was not an issue for consideration, noting that defence counsel made no attempt to persuade him to leave it open.

It was submitted for the appellant that pieces of the evidence could be taken together to infer a special defence of self-defence. These included the appellant’s comments to the police, the evidence of the two civilian witnesses that suggested the complainer was the first party to use violence, and the continuing attack by the complainer, who was acting aggressively.

In respect of the agreement of defence counsel with the trial judge that self-defence was not an issue, it was submitted that the trial judge had raised the lack of a basis for it in error. He had raised the point because he obviously had a preliminary view that self-defence should not go to the jury, and it had caused the case to go off the rails.

‘Have its cake and eat it’

The opinion of the court was delivered by Lord Matthews, who began: “The proposition, derived from cases such as Crawford v HM Advocate (1950), that special defences ought not to be withdrawn if there is any reasonable basis in the evidence for them, is non-controversial. By navigating a tortuous path within the evidence in this case, there might have been a basis for the jury to hold that the complainer had a knife (the appellant’s own evidence) and that the appellant was acting, as he put it to the police, in self-defence in a general sense.”

However, he went on to say: “The more fundamental problems for the appellant are the nature of his own evidence and the agreement by his counsel that the issue of self-defence could not arise on the evidence. There is no foundation for any suggestion, nor indeed was it suggested, that counsel was put under any pressure to make this concession.”

On whether defence counsel’s approach in this case was reasonable, he said: “Standing the state of the evidence, not only was counsel’s approach reasonable in the circumstances, it was the only approach which he could realistically and responsibly take. The only criminality alleged against the appellant was his use of the knife. In his evidence he denied using a knife. There was no basis on which counsel could have effectively discarded that evidence and proceeded on the basis that the jury should consider self-defence, even on an esto basis.”

He continued: “Had there been sufficient other evidence supporting self-defence, counsel might have had a difficult practical choice to make. If the position of the accused in such a case were that he denied the use of the weapon and denied committing the assault at all, reference to a provisional defence might well have been seen to be undermining the accused’s position and could easily lead to a jury thinking the defence wanted to have its cake and eat it.”

Turning to whether the judge had erred in removing the defence from consideration, Lord Matthews said: “The trial judge quite properly raised the issue and counsel quite properly indicated that he would not be relying on the special defence. There was no need for him to use any particular form of words in withdrawing the special defence. An indication to the trial judge that that was his position was quite sufficient. The judge made no error. He did not in fact make any operative decision at all, although we know what his views on the matter were.”

He concluded: “All he did was give effect to the concession made by counsel. Had he carried on regardless of this and addressed the jury on self-defence he would have risked undermining the position adopted by counsel.”

For these reasons, the appeal was refused.

© Scottish Legal News Ltd 2021

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