Man who permanently disfigured another loses appeal against attempted murder conviction
A man who was tried alongside his brother for attempted murder and assault has failed to appeal his conviction in the Appeal Court of the High Court of Justiciary.
Lawrence Nelson, whose brother Gary Nelson was not convicted following the charges against him being withdrawn, argued that the trial judge misdirected the jury by omitting to give them a direction relating to provocation of the appellant by the complainer.
The appeal was heard by Lord Brodie, Lord Glennie, and Lord Turnbull.
The appellant had entered the home of the second complainer, Mark Christie, in the early hours of the morning on 23 December 2018 along with his brother and another woman, Kelly Van Beck. The first complainer, Greig Ramsay, was also in the house. Mr Christie and his partner Jade Miller were attacked by the appellant, who then went upstairs with a crowbar looking for Mr Ramsay.
Greig Ramsay suffered severe injuries including a laceration to the scalp and a comminuted skull fracture under it, which required him to undergo emergency surgery after he was admitted to hospital. The surgery left him with a noticeable depression in his skull and at risk of seizures for life as well as cognitive impairments.
At trial, the first complainer did not give evidence due to loss of memory from the injuries. The appellant’s evidence was that he had driven to Mr Christie’s address to obtain the repayment of a loan given to Mr Ramsay. He claimed that Mr Ramsay had stabbed him on his right shin with a pair of scissors when he had gone upstairs, and he grabbed the crowbar after that to get him away.
The trial judge observed in relation to the appeal that the issue of provocation had not been raised at trial by either the defence or the advocate depute, and thus did not consider it appropriate to mention provocation in his charge. He was extremely doubtful if this could ever have amounted to a case of self-defence, but left that issue to the jury.
It was submitted for the appellant that it was open for the jury to find on a reasonable view of the evidence that the appellant had assaulted the complainer under provocation and thus the trial judge ought to have directed the jury on it. His failure to do so amounted to a miscarriage of justice.
It was accepted by counsel for the appellant that the jury must have rejected the special defence of self-defence in this case. Therefore, the issue in the appeal was whether to substitute the existing conviction for attempted murder with one for assault to severe injury, permanent disfigurement, permanent impairment and to the danger of life, under provocation.
It was also submitted that the sentence imposed, if the appeal against conviction were successful, would be excessive for what would remain following an amended charge.
Cruel and vindictive
The opinion of the court was delivered by Lord Brodie. After outlining the requirements for a finding of provocation, he said: “Three of the four requisites of provocation might be said to be present: a physical assault on the appellant by the complainer; immediate retaliation by the appellant; and a response by inflicting one blow, albeit with a crowbar, which was not grossly disproportionate. However there was no evidence of loss of self-control and in the absence of such evidence there was an insufficient basis for the desiderated verdict.”
He continued: “Far from being an obvious possible verdict, we consider that a verdict of assault under provocation was not one which a reasonable jury could have reached. There was therefore no misdirection and no miscarriage of justice. We are however reinforced in our conclusion that there was no miscarriage of justice by our consideration of how the respective cases were put to the jury by the trial judge and what the jury determined.”
On the appellant’s submission that the jury may have rejected self-defence as the appellant failed to avail himself of a means of escape, he said: “We do not accept that suggestion. As can be seen from the brief extracts from the appellant’s evidence quoted above, he was at pains to stress his attempts to get out of the bedroom, but more critically, it is very clear that failure to take the opportunity to escape was simply not an issue in the case.”
Regarding the sentence, he said: “The consequences for the complainer in charge (1) have been particularly grave. He has been left with cognitive defects and problems with speech and memory. The trial judge reports that the complainer described his life as having been ruined by cruel and vindictive actions. That is understandable. These were offences which called for a significant custodial sentence. There is no question of the sentence selected by the trial judge being excessive.”
For those reasons, the appeal was refused.
© Scottish Legal News Ltd 2020