APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
OPINION OF THE COURT
THE LORD JUSTICE CLERK
CONTINUED NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: R. Doherty, Q.C., A.D.
Respondent: M. Scott; Aitken Nairn
16 June 1999
On 20 August 1998 the appellant was convicted on a charge of murder.
The sole ground of appeal against his conviction is that there was a misdirection on the part of the trial Judge.
Before coming to the point at issue we would indicate briefly the circumstances out of which the present case arose. There was eyewitness evidence in this case as to an encounter between the appellant and the deceased. An eyewitness who lived near the scene said she saw the appellant and the deceased fighting in the street. She saw the appellant swing a punch at the deceased, which struck him on his left cheek. The deceased then tried to strike the appellant with the stock of an old umbrella. The appellant warded off the blow from the stock of the umbrella with his elbow and thereupon punched the deceased's face yet again. The pair of them then grappled and the deceased either tripped or fell to the ground. He appeared to twist as he went to the ground. He landed heavily, his right shoulder being on a grass verge but the rest of his body being on the tarmacadam of the roadway. Once the deceased had so fallen the appellant knelt over him, straddled his body and proceeded to punch his repeatedly on the face and head. The eyewitness described the deceased's head as having bounced. Following the first punch, which he received after the fall, the head came up and then went back down to the tarmacadam where it remained. Thereafter the deceased did not move. The appellant appeared to tire of punching and then began kicking and stamping on the body of the deceased. It looked to her as if he was stamping all over his body. Her husband had got up meantime and he went out to the street. She followed him out, by which time the appellant was running down the street. The deceased appeared to be conscious when she and her husband went over to him. The witness's husband gave evidence of seeing the fight from the house and seeing the deceased on the roadway being punched by his assailant. He saw him punched at least four or five times. Then the assailant began to kick the deceased. There was a third eyewitness who gave evidence. Her evidence included seeing the scene from her window. The appellant was delivering kicks to the deceased who was lying prone on the roadway. There were more than a couple of kicks, and they were directed to the deceased's side, his private parts and his head. She also saw the appellant stamp once on his chest and rub his boot against the deceased's body as if he was cleaning the sole of his boot.
At the trial there was evidence given as to the cause of death of the deceased. The immediate cause was bronchopneumonia, arising out of coma which prevented the body from functioning normally. There was evidence of multiple facial fractures, which are detailed by the trial Judge in his report. Post-mortem examination of the brain established that it suffered microscopic diffuse axonal injury. Such an injury would account for the deceased having been rendered unconscious and remaining in a comatose state. The mechanism leading to such injury would be sudden acceleration followed by sudden deceleration of the head causing severing of or damage to the axons within the brain. A neuropathologist gave evidence that the implication of the finding of that kind of injury was that it resulted from trauma to the patient's brain having undergone a degree of acceleration and deceleration. This could not be accounted for by contact alone. He and a pathologist explained that such injury was unlikely to be suffered simply by a fall, but could result from either a propelled fall or by a motion such as the head being punched and moved sharply against a fixed object or surface. On the summary of the scene as described by the first of the eye-witnesses being put to the professional witnesses they were of the view that the likely cause of the onset of the coma would be either a fall being a propelled fall, or the bouncing of the head after it was punched subsequent to the fall, or a combination of both the propelled fall and the bouncing.
The matter of alleged misdirection arises in reference to certain remarks which the trial Judge made in commenting on the defence approach. The Crown had submitted to the jury that the murderous quality of the attack on the deceased should be gathered from the evidence given as to the totality of the attack by the appellant on him regardless of what was the precise cause of death and, accordingly, it would have included consideration of stamping and the other matters which were spoken to by the witnesses, quite apart from brain damage.
We need now to refer to a passage in the trial Judge's charge, starting at page 19C. We read this:
"For his part, Mr.Findlay, for the Defence, disputes that approach and he says that on the evidence relied upon by the Crown, which is largely Mrs. Bruce's evidence (the first of the eye-witnesses), the fatal injury must have been sustained, at the latest, when the deceased raised his head and it was punched, or bounced back on to the tarmac, and any punching or kicking, the attack thereafter, injuries sustained in that attack, are, says Mr. Findlay, of no relevance because the fatal event, the fatal blow, had preceded them in the chronological order of the attack, and the subsequent injuries, says Mr. Findlay, had, of course, no role in the mechanism of causing death. And so, says Mr. Findlay, at most, what one has is the insult or blow inducing this condition of diffuse axonal injury, in either the propelled fall to the ground or the bounce to which I have referred, and neither aspect individually, or in combination, can, he says, amount to wicked recklessness.
Ladies and gentlemen, insofar as you may have understood, as I did, Mr. Findlay to say that in assessing whether the attack on Mr. McLaughlin (that is to say the deceased) was carried out with wicked recklessness, you could not look to the evidence of kicking and punching after the fall or bounce, supposedly precipitating the brain injury, I regret to say that I have to contradict Mr. Findlay. It may be that I misunderstood him but, plainly, ladies and gentlemen, in many fatal assaults there will be many blows of which only one may, with the hindsight of examination in the mortuary by pathologists, be seen as the fatal one. For example, one may have a victim who sustains a number of stab wounds, but only one of them is the one which causes the death, and it would not be in accordance with commonsense, to say, in judging of the nature of the attack, that you look only to the one fatal stab wound and ignore the others. There may be one fatal wound, but many repeated attempts at inflicting wounds.
Moreover, ladies and gentlemen, as I think you will appreciate, the assailant will usually not know which of the many blows which he inflicts, is the fatal one. The attack may continue in ignorance of that knowledge, that knowledge being what is gained with hindsight, by dissecting or examining the body in the mortuary.
And, so, ladies and gentlemen, where one has a continuing, or continuous attack involving many number of successive blows or injuries, a jury is entitled, if you are so-minded, to have regard to the brutality of that continuous attack, in deciding whether murderous intent has or has not been demonstrated. The issue really is the mental state of the perpetrator of the continuing attack, and that is a matter of inference from the attack, which you can look at in its totality, and one is not constrained with the hindsight of the mortuary table, to look only to the fatal blow, in isolation from what preceded it, and what came after it.
That said, of course, ladies and gentlemen, if you do accept the liberty to look at the whole of the assault episode, you have still to consider very carefully whether, viewed in their totality, the actions of the Accused allow you to infer that he acted with wicked recklessness.
Please appreciate that what I'm saying to you is that you are entitled to look at the totality of the attack, but it doesn't follow that, having done so, you must necessarily reach a conclusion favourable to the Crown. You have to look at the Crown contention as critically, and form your own view about that.
The question, ladies and gentlemen, is whether the Crown has satisfied you, having regard to the totality of that attack, that the Accused attacked Mr. McLaughlin with that utter disregard, that wicked recklessness which I have referred to as being the test of murderous intent."
For the appellant Miss Scott did not dispute that the trial Judge was entitled to express his rejection of the proposition put forward by Mr Findlay that the jury were not entitled to look at the totality of the attack. That acceptance by Miss Scott plainly could not have been withheld, especially considering the recent decision in Halliday v HM Advocate 1998 S.C.C.R. 509. The criticism which Miss Scott advanced was that, when the charge was viewed overall, it could be seen that the trial Judge had in effect told the jury that they should look at the totality of the evidence in the way in which the Crown had invited them to do. She referred in particular to the passage towards the end of the section which we have quoted in which he said to them:
"The question, ladies and gentlemen, is whether the Crown has satisfied you, having regard to the totality of that attack, that the Accused attacked Mr. McLaughlin with that utter disregard, that wicked recklessness which I have referred to as being the test of murderous intent."
Miss Scott submitted initially that what the trial Judge should have put to the jury was that they were entitled, if they so chose, to look at the blow in isolation. As the argument developed it appeared that Miss Scott's point went rather to the materiality of the evidence and in the end of the day we think it would not be inaccurate to put her submission as being this - that he should have directed the jury that it was for them to decide what weight they should attach to the different phases of the attack and, in particular, to decide to place weight solely on that part where the fatal blow was caused.
We do not consider that there is any substance in this criticism of the Charge. The trial Judge made it clear on more than one occasion in the passage which we have already quoted that he left it entirely to the jury to decide what they made of the totality of the attack. We refer in particular to the passage in which he indicated that it was for them to decide because they were entitled "if you are so minded to have regard to the brutality of that continuing attack". Again, at a later point he said that they could look at the attack in its totality. Then again he referred to them as considering whether they should "accept the liberty to look at the whole of the assault episode".
In these circumstances we do not consider there was any lack of balance in the trial Judge's remarks and the way in which he invited the jury to look at the evidence as to the totality of the attack.
Miss Scott also submitted that the illustration which the trial Judge had taken of one of a number of stab wounds, again, was an unfortunate one since it differed from the nature of the present case. We do not agree. We do not consider that in any respect the Judge presented an unbalanced view of the evidence to the jury or in any way distorted their proper approach to the evidence that was before them.
In our view this ground of appeal is ill founded and accordingly this appeal against conviction is refused.