Man who pled guilty to assault but claimed ‘mental disorder’ fails in ‘defective representation’ appeal

The appellant alleged “defective representation”, but the Appeal Court of the High Court of Justiciary refused the appeal after noting that he had given his defence agent “clear instructions” not to pursue the issue of his mental responsibility at the time of the offence.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that in July 2014 the appellant Gursel Duzgun pled guilty at a first diet at Edinburgh Sheriff Court to a charge which libelled that he assaulted the complainer by repeatedly striking him on the head and body with a pair of scissors, all to his injury, and that the offence was aggravated by religious prejudice.

‘Psychotic symptoms’

The circumstances of the offence were that, at about 6.30pm on 29 April 2014, the appellant and the complainer, both of whom were of Turkish origin, were outside a food shop when the appellant said to the complainer “If you step in front of me I will kill you”.

The appellant went into the shop while the complainer stood outside, and when the appellant came out of the shop the complainer asked him what the problem was.

In response, the appellant said “nothing” before walking up to the complainer and punching him on the left side of his face.

He had a small pair of scissors in his fist at the time, and proceeded to strike the complainer several times, inflicting puncture wounds to his chest, neck, head, face and left ear, and bruising to the jaw and chest.

He appeared on petition on 30 April 2014, but because of his mental state the Crown instructed a psychiatric report.

The report, which was compiled by Dr Craig Morrow on 6 May 2014, stated that the appellant had, by the time of the offence, cut off contact with society and was spending most of his time browsing the internet for videos which might indicate “a coming apocalypse”.

According to the appellant, when the large hadron collider was started up in 2010, an atomic particle flew off and entered his brain through his ear, which opened his mind to the universe and led him to understand that he was a “prophet of God” who was ultimately to die at the moment when the world was to end, following which he would assume the role of judging others.

There were individuals who had come from “the fire temple” which was linked to Solomon, who were opposed to the appellant and planned to decapitate him and steal his knowledge.

The psychiatric opinion was that the appellant had a number of active psychotic symptoms which were consistent with a diagnosis of schizophrenia and that he was not “presently fit to stand trial”, partly because he regarded the court as part of a wider conspiracy.

The recommendation, which was followed, was to subject the appellant to an assessment under section 52D of the Criminal Procedure (Scotland) Act 1995.

A second report by Dr Morrow dated 2 June 2014 after a reassessment of the appellant found that he had continued to express a number of delusional beliefs, but concluded that: “After a period of treatment [the appellant’s] mental state would be likely to respond to treatment sufficiently that he could be considered to meet the relevant criteria for fitness for trial over the coming months”.

By the time he pled guilty on 29 July 2014, the appellant’s law agent had several meetings with his client in the State Hospital at Carstairs, as a result of which the lawyer came to the conclusion that the appellant was “doing fine under treatment” and “seems to be better”.

‘Defective representation’

However, the appellant appealed against his conviction – some four years after the plea of guilty had been tendered – alleging defective representation.

It was submitted that, in terms of section 51A of the 1995 Act, the evidence demonstrated that he was not criminally responsible for his conduct by reason of mental disorder, and that he had been unable to appreciate the nature or wrongfulness of his conduct, which caused him “prejudice”.

The law agent had not instructed an independent psychiatric report to consider either fitness to plead or whether the appellant had been criminally responsible for his actions at the time of the alleged offence, but if a report had been instructed the appellant would have had evidence available to support a special defence under section 51A.

It was argued that the appellant’s law agents had had a “duty” to investigate the defence in terms of section 51A of the 1995 Act.

The central allegation was that the appellant’s defence had not been properly presented and that he had therefore not received a fair trial, meaning a “miscarriage of justice” had occurred.

However, the appellant’s agent advised the court that in the course of the discussions he had with the appellant, and in light of his medical history, he discussed with him the possibility of obtaining further medical evidence with a view to exploring whether he had a defence under section 51A of the 1995 Act.

But the appellant made it very clear that he did not want to submit to further medical assessment or obtain further medical opinion about his state of mind at the time of the incident.

To the contrary, the appellant’s clear instructions were that he wanted his case to be resolved expeditiously and on the basis of the plea that was ultimately tendered on his behalf.

The Crown intimated by letter that they did not support the conviction on the basis that it was accepted that the appellant had had a defence open to him in terms of section 51A of the 1995 Act, which had neither been explored nor advanced on his behalf by his legal representatives, but the letter had been sent without any consideration of the response of the appellant’s agent to the allegation of defective representation.

‘Clear instructions’

Refusing the appeal, the judges observed that a guilty plea may only be withdrawn in “exceptional circumstances”, but this case did not meet the criteria.

Delivering the opinion of the court, the Lord Justice General said: “An accused person is entitled to plead guilty to the charge libelled against him. He is not required to plead a defence which may be open to him on the evidence. For a variety of sound reasons, an accused may elect not to advance such a defence.

“The plea of guilty was not tendered by mistake, nor was it tendered without the authority of the appellant. On the contrary, the appellant’s law agent reports, first, that he was, as a result of several meaningful consultations with the appellant in the lead up to the plea, ‘wholly satisfied that [the appellant] understood the nature of the allegation and the evidence against him and he was able to provide … coherent and comprehensive instructions in relation to the evidence’. There is no material before the court to contradict that statement.

“The agent explains that the possibility of obtaining further medical evidence, with a view to exploring whether he had a defence under section 51A of the Criminal Procedure (Scotland) Act 1995, was discussed with the appellant. There is no material produced which contradicts that version of events.”

“In short, therefore,” Lord Carloway added, “at a time when he was deemed fit to plead, the appellant had given clear instructions to his agent not to pursue the issue of his mental responsibility at the material time. It would have been a breach of his obligations to the appellant if the agent had nevertheless decided to pursue a line which he had been specifically instructed not to pursue.

“For these reasons the appeal, which is presented solely on the basis of defective representation, must fail.”