Scottish High Court of Justiciary Decisons

ANDREA McALLAN v. HER MAJESTY'S ADVOCATE [1999] ScotHC 55 (10th March, 1999)

In the High Court at Aberdeen the appellant stood trial on the following charges:

In the course of the trial the Advocate depute amended charge (1) by deletion of the words "compress her neck". On 14 February 1996 the jury, by a majority, found the appellant guilty of culpable homicide in respect of the first charge and unanimously found her guilty of the second charge, subject to the deletion of the word "severe".

During the progress of the appellant's appeal against her conviction on the first charge this court allowed an additional ground of appeal to be received. This has been presented by Miss Scott on her behalf. Since this required extensive reference to the evidence given by a number of witnesses at the trial Miss Scott had prepared a summary of those passages to which she was to make particular reference, for which the court is most grateful.

The substance of the additional ground of appeal which she argued was that there had been a miscarriage of justice in respect that the jury had returned a verdict which no reasonable jury, properly directed, could have returned. These words reflect the terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, as substituted by the Crime and Punishment (Scotland) Act 1997. It is implicit in that proposition, and it was accepted by Miss Scott, that there was sufficient evidence to entitle the jury to convict. The points in controversy in this appeal arise from the evidence given by pathologists and ambulance men

Before dealing with that evidence it is convenient to refer to the evidence given by lay witnesses. The background to the charges appears to have been that a friend of the appellant, Lisa Robertson, had allegedly been assaulted by one or other or both of Claire Gordon and Dawn Kiloh the previous day. Evidence was given at the trial that the appellant in a first statement to the police told them that she had gone round to Claire Gordon's house and hit her on the head. She had with her nam chakka sticks. She accepted that she had put her weapon up to the deceased's face and threatened her to leave Lisa alone. She also kicked her on the legs. She also accepted that she might also have hit her on the neck later. In a second statement to the police she said that the weapon which she had was in fact a metal bar, and directed the police to where it could be found. It was a production at the trial. In evidence at the trial she said that she had taken the metal bar and gone to the house of the deceased. She also had two knives with her. She maintained that she had intended simply to warn her and Dawn Kiloh against a repetition, and that she took the weapons with her solely in case she might find herself out-numbered. When the deceased opened her door she went in and struck her in the hall with the bar on the left side of her head above her ear, near to the top of the head. The deceased, to her surprise, fell to the floor. On the floor she showed a slight amount of movement in the rocking of the upper part of her body. She kicked her about the legs and body "to get the point across". She hit her legs a few times with the bar. Her body was lying mostly in the hall, but her head and shoulders lay inside a bedroom. She denied striking the deceased on her neck, and did not accept that she had told the police that she might have done so. The only explanation which she gave for striking the deceased on her head when she opened the door was that she had not liked the tone of the deceased's voice when she asked who was there. She said that she then went to the house of Dawn Kiloh. She still had the metal bar with her. She hit her on the head with it. This assault was about 15-20 minutes after the first one. Her explanation for it was that she was on a "high" after having assaulted the deceased. Then she had a conversation with Dawn Kiloh in which she told her that she had hit Claire and was concerned as she had not moved when she hit her legs. The appellant was asked why she had told the police that she had the sticks with her. Her reply was that as it was an assault charge and that she wanted the bar out of it. She accepted that it was a heavy object. It had gone through her head that she might have killed her. She insisted that the deceased had received only one blow before she fell to the floor, and that this was a blow to the side of her head. She was sure that she had not gone near her neck, and accordingly had not caused the marks on the neck which were shown in photographs taken at her post mortem examination. She accepted that she might have prodded with the metal bar a few inches from her face. She had no idea what had caused the marks and was sure that they were not there when she went to the house.

Dawn Kiloh gave evidence that the appellant arrived at her house shortly after 8.30 p.m., carrying the metal bar. The appellant said to her: "Claire has had hers: you are away to get yours" and repeatedly struck her on the head with the bar. She said to her that she was a lot harder than Claire. After this assault Dawn Kiloh went to the house of the deceased and found her on the floor in the lobby, half into a bedroom. She was lying face down and looked dead. She attempted to give her mouth to mouth resuscitation and chest exercises. Someone else called for an ambulance. She was not sure how she got into the house of the deceased, but thought that she had pressed a buzzer to summon a neighbour. She explained that she had received some basic instruction in first aid. The deceased's pulse was very faint and irregular. Lisa Robertson apparently was standing outside the house of the deceased when Dawn Kiloh arrived. She said in evidence that she did not go in. She had a conversation with the appellant in which the latter said that she had battered the deceased.

An ambulance arrived at the scene at 9 p.m., after an emergency call was received at 8.52 p.m. According to the evidence given by the ambulance men the deceased was found lying in the house, pallid and unconscious. Shallow breathing at a rate of 14 breaths a minute was noted. She had a pulse rate of about 62. There was evidence that at one stage there was a momentary eye flicker. There was some uncertainty as to whether this was due to pressure being applied to her nail bed or to her earlobe being pinched. When she was removed in the ambulance about 9.15 p.m. she was fitted with an oxygen mask. Normal impulses on the heart machine were noted, but during the journey her condition deteriorated. There was a slowing of her breathing and she became cyanosed. Following her admission to hospital her condition continued to worsen and she died later that evening.

At the trial the case for the Crown was that the appellant struck the deceased on the neck with the metal bar and that this had caused her death through cardiac failure. The submission for the appellant in this court was that there were material contradictions within the evidence as to the nature, cause and mechanism of injuries which were found on the deceased's neck, and a conflict between the opinion evidence as to the mechanism of death and the medical findings which consisted of the evidence of the ambulance men and the medical records. Miss Scott submitted that these contradictions and conflicts were so profound that no reasonable jury could have convicted and in particular that no reasonable jury could have found that the cause of the injuries to her neck or the cause of the death of the deceased was an assault by the use of the metal bar.

In examining that submission it is convenient for us to divide the discussion into two parts, the first relating to the observed injuries, and the second relating to causation of death. However, as will be seen, they are to some extent inter-related.

As regards the injuries to the deceased evidence was given by Dr. James Grieve and Dr. Neil Langlois, forensic pathologists who carried out a post mortem examination of the deceased on 28 October 1994. Their report contained a detailed description, but for present purposes it is sufficient to refer to only a few of the details. It was recorded that overlying the base of the spine there was a dermal imprint which had an almost circular configuration. The middle of the circle was of generally stippled red dermal bruising. They expressed the view, which was not disputed by the other pathologists who gave evidence, that this mark was consistent with having been caused by the use of the end of the metal bar to strike the deceased. It should, of course, be noted that the appellant at no stage accepted that she had struck her on the back.

Among the injuries to the head which were observed, particular attention was paid at the trial to those numbered (5) and (6). Number (6) referred to their report as a faint curved line of reddish pink dermal bruising, 2.8 cm. in length with its convexity pointing downwards. The report noted that when the chin was turned to the left it was clear that two adjoining abrasions and the bruising formed the circumference of a semicircle, the diameter of which was 2.5 cms., the convexity pointing directly backwards. Dr. Grieve said that the metal bar, which had a diameter of 2.5 cms., could have caused this mark. It was of the right size and both ends had saw marks. The chin might have been pushed away by the end of the bar.

Dr. Grieve also gave evidence about an abrasion on the front of the right shoulder which was within an area of bruising. The report noted that the abrasion in its upper half had a somewhat geometric configuration which was reminiscent of a series of rectangles, obliquely disposed and overlapping each other. In evidence Dr. Grieve said that this could have been caused by the zip on the jacket worn by the appellant being pressed against the skin so as to cause the abrasion. It was possible, if not probable, that the metal bar had been offered up to the neck (i.e. to threaten the deceased) while the arm or the hand of the assailant was against her shoulder, thereby impressing the mark of the zip on the shoulder. If the mark to the shoulder had been caused in this way, the bar would have had to be held in position "over a period of time". Dr. Langlois accepted that part of the mark on the neck (Number (6)) could have been caused by a fingernail. Overall there was an impression of almost a semi-circle. A circular mark would be consistent with the end of the metal bar being pressed against the surface of the skin. On the other hand Professor Bernard Knight, who did not carry out the post mortem examination, but relied on an interpretation of the photographs, said that they did not show a circular mark. It was an over-interpretation to associate marks which had a purely fortuitous relationship. One of them was a typical fingernail mark and was a crescent. There was no evidence of a half moon shape. Dr. Marie Cassidy, a Crown pathologist who was called as a witness for the defence, also gave evidence that the injuries included in Number (6) were not related to each other. One of them was a small area of stippled abrasion, the other being similar in appearance to a fingernail mark. She also gave evidence disputing that a zip would produce the mark on the shoulder. What was found presented the appearance of something drawn across the skin with some force, and not pressed into it. It was possible that the shoulder mark could be produced if the zip had moved a short distance after being forcibly pressed against the shoulder.

The injury to the neck which attracted the greatest amount of attention was Number (5). According to the terms of the post mortem report it was a complex injury located on the front of the neck and extending towards the right side, measuring overall 9 x 4 cms. It stated:

The report then described the abrasion at the uppermost margin, which commenced in a straight line and curved upwards, whereas the lower margin proceeded in a straight area of abrasion and, after a gap of uninvolved skin, continued in a downward curving abrasion. Between the uppermost and lower margin there was patchy discontinuous abrasion, admixed with punctate, red dermal bruising, giving the general appearance of an oblique linear mark. Dr. Grieve treated this complex of marks as a single injury. Dr. Langlois agreed with that interpretation, although he stated that it had been difficult to ascertain whether the marks represented one or more than one injury. As regards the bruising Dr. Grieve gave evidence that its significance was that it indicated where a blow had landed. He was particularly interested in the squared posterior margin. This was entirely consistent with the neck being struck by a bar such as the metal bar produced. He went on to explain that the abrasions could have been caused if the neck and the bar had moved, with the bar moving forwards and falling off at the front of the neck, its end grazing the neck as it came off the circumferential part at the front. The interruptions in the abrasions were perhaps the result of the skin folding and protecting the under-surface. Dr. Langlois generally supported this interpretation. He said that the injuries were consistent with having been caused by an instrument that was relatively long in relation to its width, whether rounded or flat. The bar could have been either pressed or struck or drawn or a combination of all three. Dr. Grieve explained that blows to the neck could result in the sudden cessation of the heart output, with a loss of blood pressure. He accepted that the post mortem examination had shown very little indication of damage to structures underlying the skin on the right side of the neck and down towards the front, such as the Adam's apple and the hyoid bone. That was a negative finding that one might have to look at more closely. However, he said that he believed that an explanation for the lack of underlying injury and bruising was the loss of blood pressure. Despite the possibility of some artificial respiration, perfect heart output would never be regained. Another possibility was that the blow had been a glancing one, with insufficient force to cause the damage. Dr. Langlois also stated that with cardiac arrest little bruising would be expected. He also indicated that cardiac arrest could occur with minimum trauma.

Miss Scott submitted that the evidence of these pathologists, and in particular Dr. Grieve showed an internal contradiction since the medical evidence, and in particular the evidence given by the ambulance men, was opposed to the theory that her heart had stopped straight away. Moreover, she submitted that the explanation which these witnesses had given of the complex injury was flatly contradicted by the evidence given by Professor Knight and Dr. Cassidy. Professor Knight said that he did not believe that the marks were caused by a metal bar. They were totally the wrong shape. They were not parallel. If the bar had dug into the neck sufficiently to compress the curved surface it would have smashed the larynx. The edges were too sharply cut, and the lower abrasion had a zone of normal skin. He described the explanation that the bar had come round the front of the neck as totally impossible. It did not fit the geometry. He preferred the explanation that there had been two applications of something narrower than the bar. It may be noted at this point that Professor Knight was extremely critical of the abrasions being described as "tramlines", but it became clear in the course of his evidence that he had misunderstood the post mortem report which used this expression solely in regard to the bruising on the right side of the neck. He agreed that if the neck were struck with a bar there would be parallel lines around the area which was struck. Referring to the area of bruising shown in the photographs he agreed that he could call it tram lining, although the marks were not parallel. He agreed that a metal bar could have caused that bruising. So could a thousand other things. When it was suggested that the abrasions could be due to the effect of the bar skidding around the neck he repeated that the marks were going in different directions and that appreciable force would be required to produce them. Dr. Cassidy also gave evidence that a tramline abrasions would not be produced by the metal bar. It was verging on the impossible for it to have been used to create the complex injury. Tramline bruising could show the impression around the place where a blow had landed. However, such marks would not be produced if the bar was scraped across the front of the neck. There would be a single furrow. She would also have expected bruising into the muscles of the neck and, perhaps with a young person, damage to the larynx. Accordingly, even if the bar could cause the bruise marks at the side of the neck it would not have produced the marks at the front with a single blow. After an experiment was carried out in court, she accepted that it was possible to get diverging abrasions. However, Miss Scott emphasised that this had not addressed the complexity of the mark, the lack of underlying injury and the fact that at least one of the bruises had continued into an abrasion.

Professor Knight gave evidence as to alternative explanations for the mark. He said there were two possibilities. One was that a belt or band or some kind of ligature had been used, causing the alternating brown and white zones as it was pressed against the front of the neck. This was suggested by the sharpness of the edges of the brown marks, and the interruption possibly suggested a reflection of the pattern of the belt. He favoured the explanation that there had been two applications of the belt. It could have been pulled across the front of the throat from behind or pushed on the front of the throat. Another explanation was whipping with a flexible object such as a length of plastic pipe. Dr. Cassidy stated that the marks at the front of the neck had the appearance of ligature marks imprinted on the throat. The fact that the edges were so clean cut suggested something like a leather belt, such as a dog lead. The gaps might be due to the uneven surface of the belt or to the creasing of the skin. Another possibility was a whipping action. It may be added that Dr. Grieve gave evidence that it was highly unlikely that the mark could have resulted from a ligature, since it was difficult to understand why it did not go right round the neck. He accepted the possibility of the use of a dog lead or a whipping action but did not favour either interpretation.

Since an interpretation of the marks found on the deceased's neck was inevitably tied up with the question of causation of her death we turn next to the evidence in regard to the latter. All the pathologists were of the view that the death had been caused by the use of blunt force injury to the neck. Dr. Grieve expressed the view that the only tenable explanation of the death was reflex cardiac arrest. The insult would be so sudden that the victim would fall to the ground with no heart beat. No other cause of her death could be found. The victim would die there and then unless rescue measures were successfully introduced within a matter of minutes. It was possible for the heart to be restarted after 2-3 minutes, but it would not sustain life as it required respiration in order to obtain oxygen and the latter would not be possible if the victim was by then brainstem dead. He said that the flickering of eyes would be inconsistent with brainstem death. The evidence from the ambulance men about the deceased's breathing, the presence of a pulse rate and eye flickering caused him surprise. It was possible that resuscitation had started, but then he would be at a loss to know why she died. Dr. Langlois said, as we have already noted, that little bruising would be expected in the event of reflex cardiac arrest. However, he added that this case had been complicated by the efforts to resuscitate the deceased. That might well allow some bruising to develop. He too said that the flickering of an eye was inconsistent with brainstem death. It was accepted that with a reflex cardiac arrest and the heart stopped for a period of 2-4 minutes there would be brainstem death. Professor Knight explained that with a cardiac arrest the heart could stop or slow and stop or could slow and recover. It could be grossly slowed down without stopping for seconds, maybe a minute or two. It was feasible for someone else to restore a heart which had stopped but if this was not done within a few minutes death was inevitable. If the heart was stopped for more than 4-9 minutes, there would be irrevocable brain damage. The cortex died first; brainstem death followed. In the present case the death was, strictly speaking, unascertained, but, given the circumstances of an injury to the neck and the absence of natural disease or other severe injury, it could be concluded that reflex cardiac arrest was the most likely cause. Dr. Cassidy said that a person could die as a nervous reaction which either interfered with breathing (by stimulating the glossopharangeal nerve) or which caused the heart to stop (by stimulating the vagus nerve). In regard to the latter she stated that stimulation of the vagus nerve did not necessarily have to cause cardiac arrest. It could cause slowing of the heart which might eventually lead to cardiac arrest. She accepted that these remarks applied on the hypothesis that the complex of marks at the front and side of the neck were the manifestations either of a fatal blow or a fatal application of a ligature. In a case such as this in which there was an absence of other signs it is difficult to say how death had been brought about by means of injury to the neck and how long it had taken the deceased to die.

Miss Scott submitted that, while it was technically open to the jury to conclude that the deceased's death was caused by a blow from the metal bar, it was not reasonable in any objective sense for them to do so, having regard to the fact that Dr. Grieve's interpretation of the complex injury had been so emphatically rejected by Professor Knight and Dr. Cassidy and the fact that his explanation for the lack of internal injury was contradicted by the evidence as to the survival of the deceased till she had reached hospital.

In reply the Advocate depute emphasised that this court required to look at the evidence as a whole. There was evidence that the appellant struck the complainer on the second charge on the head with the metal bar. Her evidence was that she also struck the deceased on the head with the metal bar. Prior to the trial she had accepted that she could have struck her on the neck with that weapon. The deceased, who apparently opened the door to the appellant, had no apparent neck injury before being assaulted by the appellant. She was later found by Dawn Kiloh in the same place as she had originally fallen. There was no evidence to suggest that she had been assaulted by anyone other than the appellant. The difference between the pathologists in regard to the injury Number (6) amounted to no more than a conflict of opinion. As regards the complex injury (Number (5)) it was not in dispute that if it was possible to restart the heart which had been stopped it would be difficult to restore good cardiac output. Hence any artificial respiration which was administered by Dawn Kiloh might not be sufficient to restore good circulation. The Advocate depute emphasised that Dr. Grieve had not said that the heart would be bound to stop. The evidence of Professor Knight was useful in explaining the vital signs which could be observed after cardiac arrest. His evidence in that respect was not inconsistent with that of Dr. Grieve. He pointed out that part of Professor Knight's criticisms of Dr. Grieve's interpretation had been based on a misunderstanding of the post mortem report. The dispute between them centred on the abrasions. It was not in dispute that the metal bar could have been used to cause the bruising. Dr. Cassidy rejected that scraping with the metal bar could have caused the abrasions, but accepted that it was possible for such marks to be caused. Accordingly it was legitimate for the jury to conclude that the marks had been brought about as Dr. Grieve described and as supported by Dr. Langlois. As regards the causation of death, the marks on the neck provided the only indication as to how death had come about. As already noted Dr. Grieve had envisaged the possibility of the heart being re-started. The evidence of Professor Knight explained how there could be vital signs despite cardiac arrest. It was important to note that Dr. Cassidy had described how death could ensue immediately or later whether the marks on the neck were ascribed to a blow or the use of a ligature. The Advocate depute also drew attention to the fact that Dr. Colin Robertson, a consultant in accident and emergency medicine had given uncontradicted evidence for the Crown about the slowing of the heart. He said in evidence that after the heart was restarted the severity of the changes would depend on the slowing. He had seen a heart restarted after two hours. If nothing was done, it was very unusual for the heart to be restarted after 20-30 minutes. He expressed the opinion that what was described in the post mortem report was consistent with death being due to reflex cardiac arrest associated with major arteries.

Miss Scott reminded the court that the terms of section 106(3)(b) of the 1995 Act as amended were enacted as a result of one of the recommendations of the Committee on Appeals Criteria and Alleged Miscarriages of Justice (The Sutherland Committee). She referred to paragraphs 2.59-2.71 of their report, and to M. v. The Queen [1994] 69 A.L.J.R. 83.

The present appeal is not concerned with the question of legal sufficiency of the evidence. Nor is it concerned with whether this court would have convicted. For us to interfere with the jury's verdict on that basis would not be in accordance with the statute, and would amount to usurpation of the function of the jury. The question is whether no reasonable jury, properly directed, could have convicted. We can assume that the jury in the present case were satisfied as to the guilt of the appellant beyond reasonable doubt. We have to consider that that was a verdict which could only have been returned by a jury which was not a reasonable jury.

Having regard to the evidence given by the lay witnesses and by the pathologists, Miss Scott accepted that it was open to the jury to conclude that the appellant struck the deceased on the neck with the metal bar. In our view the matter goes further. There is no warrant for concluding that it would have been in any way unreasonable for the jury to reach that conclusion, having regard to the evidence of the pathologists against the background of the evidence of the lay witnesses which was founded on by the Advocate depute. Whatever other contradictions there may have been between him and Dr. Grieve and Dr. Langlois, it is plain that Professor Knight did not dispute that the bruising which formed part of the so-called complex injury was consistent with having been caused by the use of that implement. There was, as we have noted, a clear dispute between Dr. Grieve and Dr. Langlois on the one hand and Professor Knight and Dr. Cassidy on the other as to whether the metal bar could have caused the abrasions as part of a single injury. It was open to the jury to prefer the evidence given by Dr. Grieve and Dr. Langlois if they so chose. Indeed, given the apparent differences of view between Professor Knight and Dr. Cassidy in regard to their interpretation of the neck injuries and their cause, it cannot be said that to do so would have been unreasonable. However, it seems to us that the more important aspect of that complex injury was the bruising. There was no suggestion that it was in a part of the neck which was unlikely to give rise to a stimulation of the vagus nerve, nor was it suggested that it was inconsistent with an impact of sufficient force to cause that nervous reaction. The evidence of the pathologists as a whole demonstrated that a person who received some form of resuscitation could survive for a period with impaired heart action, and it does not appear to us to be unreasonable for the jury to have regarded that evidence as explaining why it was that the deceased appeared to continue to show vital signs for some time after the assault upon her. It is true, of course, that there was a difficulty in regard to the absence of signs of injury in the structures underlying. However, the jury could quite reasonably have inferred that this was due to a combination of the impaired heart function and the amount of force with which the deceased had been struck. As was pointed out during the course of the evidence another possible factor was the fact that the deceased had been lying on her back when attempts were being made to resuscitate her and take her to hospital.

In these circumstances we cannot conclude that the evidence before the jury was such that no reasonable jury in their position would have convicted the appellant. Accordingly her appeal against conviction is refused.