APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: XC277/03
OPINION OF THE COURT
delivered by LORD KIRKWOOD
APPEAL AGAINST CONVICTION and SENTENCE
NIALL DUNCAN McDONALD
HER MAJESTY'S ADVOCATE
Appellant: J. Gilchrist, Shead; Burnside Kemp Fraser
Respondent:I. Armstrong, Q.C., A.D; Crown Agent
 In January 2001 the appellant, Niall Duncan McDonald, appeared at the High Court at Forfar facing (1) a charge of murder and (2) a charge of attempting to defeat the ends of justice. Charge (1) was in the following terms:
"(1) on 4 January 2000, at 1 Arnhall Drive, Westhill, Aberdeen, you did assault Amanda Jane McDonald, your wife, residing there, place your arm round her neck and compress same, repeatedly insert the handle of a whip into her private and hinder parts and you did murder her".
The second charge alleged that, having murdered his wife, he had disposed of her body, cleaned the blood-stained areas in their house, disposed of the whip and pretended to police officers that his wife had left the house as the result of an argument and was missing, all with intent to conceal or destroy evidence in order to avoid detection, arrest and prosecution and attempted to defeat the ends of justice. It was common ground that the two charges stood or fell together. On the first charge the appellant was convicted of culpable homicide, and he was convicted of the second charge as libelled. On 9 February 2001 he was sentenced to four years imprisonment on charge (1), and three years imprisonment on charge (2), the sentences to run consecutively. He has appealed against conviction and sentence. The circumstances in which the deceased met her death are set out in the report by the trial judge. On Christmas day the appellant, his wife (hereinafter referred to as "the deceased") and their children had visited her parents, and there had been nothing remarkable about the occasion. On the afternoon of Monday 3 January 2000 the appellant and the deceased had attended a New Year's party in Westhill, Aberdeen. It came to an end at about 7 p.m. and people proceeded to the nearby Westhill Hotel. The party later moved to a public house, the Key West. At about 11.30 p.m. the party began to break up, and the appellant and the deceased went home. There was evidence that during the evening the deceased had become "giggly" and talkative as she usually did under the influence of drink, and there was other evidence that she had had too much to drink and that the appellant thought that she should go home. He was happy and quite drunk.  The appellant left the matrimonial home in the early hours of the morning of 4 January and later that day he began to make contact with friends and neighbours. He said that he and the deceased had had an argument, and that she had stormed out of the house and he was anxious to find out where she had gone. That evening the appellant telephoned the police and reported that the deceased was missing. In the days following her disappearance the police visited and interviewed friends and neighbours and made other investigations.  On Saturday 8 January the appellant was interviewed by the police and eventually told them that his wife was dead and he gave his account of how she had died. The next day he was interviewed under tape-recorded conditions and the transcript of the interview was before the jury. The appellant stated that he had had intercourse with the deceased, both vaginally and anally, and that he had ejaculated. However, she was dissatisfied and the appellant said that he would satisfy her. His account of what happened next was in the following terms:
"I inserted my finger and then got a leather whip that we have out of the bedside cabinet, on Mandy's side of the bed. Then I inserted it vaginally, I think, followed by anally. At this point my arms were round Mandy's throat because that's the way we normally love sort of thing, so, as Mandy was grunting and groaning I thrust in deeper and deeper and at this stage my arms must have tightened and as I am thrusting my arm is pulling. Then, I am not sure of the time span, maybe two minutes, Mandy's noises stopped. So at this point I withdrew the whip and realised Mandy wasn't moving. I was amazed, shook her. I think I might have slapped her face to try and get her round. At that point I tried to give her the, the kiss of eh, life. There was nothing."
"Yes, it was accidental. During sex my arm was usually round her neck at that point and I didn't realise it was tightening. She was making noises which I took to be pleasure. Usually if the whip is hurting her she says stop. She didn't say stop so I just stopped when she went quiet."
"I said I will satisfy you. I reached over to the bedside cabinet where we keep a leather whip. I took it out and inserted the handle end into her vagina and then her anus and I was thrusting away. She was grunting and lying on her side with my arm round her neck. She was making noises and I was going deeper and deeper. As I was thrusting, my arm tightened and then the noises stopped. I wasn't aware but as I was thrusting I was sort of pulling and then the noises stopped pulled out the whip handle, realised Mandy wasn't moving. She died."
"There was in the total body of evidence led by the Crown ample to show that serious physical damage had been inflicted on Mrs. McDonald by a combination of at least partial manual strangulation and the forceful insertion of a rigid blunt instrument deep into her bowel causing a great deal of pain".
Sufficiency of evidence - submissions Counsel for the appellant submitted that there had been insufficient evidence to entitle the jury to hold that there had been the necessary evil intent to constitute an assault. While the appellant had admitted the acts libelled in charge (1), he had said that they had taken place in the context of a consensual sexual encounter. The Crown had accepted that they had taken place in the course of such an encounter, and the pathological evidence had supported the appellant's account of events. However, counsel made it clear that he was not contending that, if there was an intention to cause injury, consent of the deceased was a defence. The Crown approach had been that the jury could reject the "self-serving" parts of the appellant's account of events, and that in that event there was sufficient evidence of evil intent. However, even if the jury had adopted that approach, it was submitted that there was insufficient evidence to justify an inference of evil intent. There had been evidence that the appellant and the deceased had been a happy couple, and that they had enjoyed an unusual sex life. She had spoken of a whip being used in the past. The pathological evidence relating to the insertion of the whip handle had contained reference to the fact that the deceased would almost certainly have suffered considerable pain and that anal fissures can be "exquisitely sore". Counsel submitted that, at best, the evidence justified an inference that the appellant would have been aware that his actions were causing pain. The evidence did not justify an inference that the appellant, or indeed, the deceased, would have been aware that his actions were causing physical injury, or carried the risk of stopping her heart. Awareness that a person is causing pain (in the absence of evidence of lack of consent) in the context of a sexual encounter is not sufficient to justify an inference of evil intent, and in the present case the deceased had died very suddenly. So far as the compression of the neck was concerned, there had been two possible mechanisms, namely asphyxia or vagal inhibition, Dr. Grieve taking the view that the more likely scenario was vagal inhibition. He stated that if there had been no other injuries, he could easily have attributed her death to a neck injury. If the only injuries had been to the colon and surrounding tissues, he would have accepted that her death had resulted from those injuries, which had caused reflex cardiac arrest. However, it was submitted that someone inserting an implement into the anus would not be aware that it would come into contact with a bend in the passage. Similarly, a layman would not know that putting an arm round someone's neck could result in vagal inhibition, as opposed to a degree of asphyxia. Either the compression of the neck or the insertion of the whip handle into the anus could have caused cardiac arrest, but the mechanism in each case is different. The point was that the pathological evidence was quite consistent with what the appellant said had happened. While the Crown had sought to rely on the tears in the rectum as evidence of lack of consent, the trial judge had described them as relatively minor structural marks at the entry to the rectum. Even if the jury rejected the appellant's account that the deceased had consented to what was being done, that did not establish that the activities were non-consensual. Counsel submitted that the injuries themselves were not a sufficient basis for inferring evil intent. In particular, they were not obviously injuries that were likely to prove fatal. They were injuries which could have been caused without the appellant having any intention to injure the deceased. What had happened was consistent with the careless use of force. Evil intent could only be inferred from the knowing infliction of physical injury, not from the knowing infliction of pain, although counsel conceded that he did not know the exact distinction between pain and injury. In this case the evidence was only capable of justifying the inference that the appellant knew that he was causing pain. The jury could not infer that the appellant had knowingly inflicted injury by the insertion of the whip handle simply because the deceased had complained that penile penetration had caused her pain.  In reply, the advocate depute submitted that there was evidence from which the inference of evil intent could be drawn. It could also be inferred that the deceased had not consented to what the appellant was doing to her, at least in the later stages. The Crown accepted that the incident began as a consensual sexual encounter, but it could be inferred, when she complained of pain, that she had withdrawn her consent, although such an inference was not necessary for the Crown case. At the trial there had been more emphasis placed on consent than on evil intent, and on causing injury rather than the infliction of pain. The injuries were such that, if the deceased had survived, medical intervention would have been necessary. While the appellant had referred to previous anal penetration, Dr. Grieve was not able to say if there had in the past been penetration by an object like a whip handle. It was important to consider the nature of the injuries sustained by the deceased. There was evidence of injuries due to significant pressure being applied to the neck. There were petechial haemorrhages on one eyelid, lymph nodes were enlarged and congested, there was bleeding deep in the neck structures and some bruising of the hyoid bone. So far as the bowel was concerned, there was a tearing of the structures of the bowel and extensive haemorrhage. The injuries to the rectosigmoid junction were described as serious and "a major trauma", and as having caused "considerable and extensive damage". The evidence established that the length of the rectum was about six inches, and that the bruising extended eight inches in from the edge of the anus. There had been a great deal of bleeding. The advocate depute submitted that the appellant's actions were such that it must have been obvious to him that he was causing injury. In any event, his actions were clearly calculated to cause injury, particularly as he had admitted tightening his arm round her neck and thrusting the whip handle deeper and deeper. An inference of intention to cause injury could be drawn from the nature of the injuries sustained and the degree of force required to inflict them. Further, the appellant had stated that the deceased had objected to anal penile penetration. If that had caused pain, the jury were entitled to infer intention to injure when the appellant inserted the whip handle to the depth he did. If there was an intention to cause injury, and injury resulted, consent could not be a defence (H.M. Advocate v. Rutherford 1947 J.C. 1; Smart v. H.M. Advocate 1975 SLT 65). There was no evidence that the deceased had consented to pain being inflicted. The advocate depute submitted that an inference of evil intent could be drawn from the appellant's conduct in the context of the totality of the injuries sustained, the appellant's admission in relation to the degree of force he had applied and his subsequent actions in disposing of his wife's body. Towards the end of his submissions, the advocate depute conceded, for the purpose of this appeal, that if the appellant had only intended to cause pain, as opposed to significant actual injury, then that would not constitute evil intent and the convictions could not be maintained.
Sufficiency of evidence - decision It was common ground that the appellant had placed an arm round, and had compressed, the deceased's neck, and that he had inserted the handle of a whip into her private and hinder parts, as set out in charge (1), and it was not disputed that as a result of his actions the deceased had died. The question for our determination is whether there was sufficient evidence to entitle the jury to infer beyond reasonable doubt that the appellant had had the necessary evil intent to constitute assault.  In H.M. Advocate v. Rutherford, supra, the accused was charged with murdering a woman by strangling her. He stated in evidence that she had repeatedly asked him to strangle her to death, that he had put his necktie round her neck and that he had pulled it and pulled it again on her telling him to get on with it. The Lord Justice Clerk (Cooper) gave the jury inter alia the following directions:
"Where violence is used, as admittedly it was used in this case, and it results in fatal consequences, that is not by the law of Scotland assault. It is culpable homicide. And the question to which I now direct your attention is the question of the choice between a verdict of guilty of murder and a verdict of guilty of culpable homicide. That choice depends entirely upon the quality of the criminal intent which, in your view, inspired the assailant, Rutherford ... What the law looks for is, not the motive at the back of a man's mind, but the intention, the intent with which he acts; and of course it is just there that the difficulty arises, because no one can see inside any person's mind, and intent must always be a matter of inference - inference mainly from what the person does, but partly also from the whole surrounding circumstances of the case".
Misdirection - submissions On behalf of the appellant it was submitted that the trial judge had misdirected the jury on the issue of evil intent. On that matter the trial judge gave the following directions to the jury:
" Now, ladies and gentlemen, in the context of this case what I would say to you about assault is this: that assault in our law is defined as any deliberate attack by one person upon the person of another, with evil intent. An attack ladies and gentlemen is a deliberate physical attack carried out by a man or a woman directed against the body or the person of someone else, with evil intent. Evil intent is of the very essence of assault.
The physical attack involved in assault may take many forms: it is often a blow, but it can be an aggressive grasping hold of someone or the use of an instrument against the other person. Evil intent in that context is an expression used to reflect the intention to inflict pain, to hurt, to injure. It has to be set against and distinguished from accident, from carelessness or negligence: they are all ... those are all ... accident, carelessness, negligence ... are all ways in which one person may injure another. What distinguishes these from assault is this element of evil intent.
Now, evil intent is sometimes established by evidence of a threat or words spoken by an assailant before a blow is struck (inaudible) which would show an intention to hurt; but in most cases it is an inference which arises from the circumstances of the attack, established in evidence. And what the jury is mostly invited to do is to look at what has been established as having happened in fact and ask whether an inference of intention to hurt, to injure, can be drawn from those facts.
You will see instantly that that also distinguishes evil intent as well as from accident and so on, from motive. Motive, the reason why an attack is carried out, is not a material consideration.
Ladies and gentlemen, how does a jury such as yourselves approach this idea in the context that we have to deal with here? Consensual sexual relationships or activity within the context of a human relationship between two people doesn't in the ordinary course involve assault, however bizarre it might appear to others and whatever form of stimulation a couple might adopt. You can identify motive in most cases: motive for the conduct is generally taken I imagine to be the giving of mutual pleasure and satisfaction. But you will see at once (inaudible) and perhaps see within that a reason why motive generally is not significant in the context of assault: because although one might not normally consider that causing injury or harm to another person's (sic) sexual partner was an aspect of one individual's intention, in this case you have heard largely in quotations from American literature ... though there is no reason to think it is restricted to America ... of practices which appeared to involve the deliberate intention to inflict pain apparently to heighten sexual experience. Now, ladies and gentlemen, some of these practices ... and it is thought there is much controversy in this case ... some of these practices especially at the extreme end of the scale would if they were carried out in Scotland most certainly involve assault: for example, the law would not excuse mutilation on the basis that it was done to a willing partner to heighten sexual gratification. And in the range that leads up to mutilation there must be many circumstances where a jury looking at what has been established has happened in fact would say objectively 'That conduct, while done in a sexual context clearly was carried out with the intent to hurt, the intent to inflict harm': and that conduct, ladies and gentlemen, despite the consensual sexual relationship, would (inaudible) come out to an assault. And that again, if you think of it is simply the result of applying the test. If there is an attack on another person which is done with evil intent, the intent to injure and do bodily harm, then the fact that the person who is attacked in that way was willing to submit to the attack, consented to the attack, does not prevent the attack from being an assault ... And so in the sexual context, ladies and gentlemen, in the course of sexual exchanges, people may engage in practices which involve one assaulting the other or even mutual assault in the course of sexual exchanges: people may engage in practices which involve one assaulting the other or even mutual assault if the person acted deliberately towards the other with the intention of doing bodily harm or positive injury. Now, there are individuals who would explain to you that such conduct was mutually acceptable sexual behaviour, and of course cases of that kind seldom reach a public court; probably only where there are disastrous consequences for one of the parties do outside agencies become involved at all. But views about the social acceptability of sexual conduct are not material in this case, any more than are views about the morality of such conduct. The first thing for you to decide in considering the question of an assault which arises from the first charge is to consider whether the facts have been proved objectively on the evidence and to consider whether you are satisfied beyond reasonable doubt that those facts give rise to an inference of evil intent, that's intent to do bodily harm, to injure, which is central to the charge. Without evil intent in that sense there cannot be an assault. And evil intent, ladies and gentlemen, let me emphasise, can be established even where the motive for the conduct, the object, was to give sexual stimulation, or what the recipient herself in this case might have described as sexual pleasure".
Misdirection - decision An assault is an attack on the person of another, and evil intention is of the essence of assault (Macdonald, Criminal Law (5th edition) 115; Smart v. H.M. Advocate, supra, at page 66). In Smart the court made the following observation:
"If there is an attack on the other person and it is done with evil intent that is, intent to injure and do bodily harm, then, in our view, the fact that the person attacked was willing to undergo the risk of that attack does not prevent it from being the crime of assault".
As we have said, the advocate depute conceded that the conviction of the appellant could only be justified if it could properly be inferred from the evidence that he had intended to cause physical injury or, to put it another way, had intended to injure and do bodily harm. We have proceeded on the basis of the advocate depute's concession in this case, but we wish to reserve our opinion as to whether, in an appropriate case, notwithstanding consent to the infliction of pain in a sexual context, an intention to cause pain could justify a conviction for assault in the absence of an intention to cause actual physical injury. In the circumstances of this case what we have to decide, in light of the advocate depute's concession, is whether the trial judge adequately directed the jury that they had to be satisfied beyond reasonable doubt that the appellant had had the intention of causing the deceased physical injury. The trial judge directed the jury that culpable homicide was defined as causing death by an unlawful act, and that in this case the alleged unlawful act was assault. He told the jury that assault was any deliberate attack by one person upon the person of another, with evil intent. In the course of his charge, so far as it related to evil intent in the context of assault, the trial judge referred at one stage to "the intention to inflict pain, to hurt, to injure". He also referred to "the intent to hurt, the intent to inflict harm", as well as injury and bodily harm. Having regard to the submissions which were made to us by counsel for the appellant, we have noted that, in their closing speeches, neither the advocate depute or counsel for the appellant sought to draw a distinction between intention to cause injury and intention to inflict pain, and the appellant had not stated at any stage that his intention was to cause pain, but not to injure. The reference by the trial judge to "the intention to inflict pain, to hurt, to injure" was made by him at the outset of the part of his charge which related to assault and where he was defining it in general terms. He thereafter turned to the context of the present case, and consensual sexual relationships or activities. He dealt with quotations from literature which, he said, appeared to involve the deliberate intention to inflict pain apparently to heighten sexual experience. He then told the jury:
"Now, ladies and gentlemen, some of these practices - and it is thought there is much controversy in this case - some of these practices especially at the extreme end of the scale would if they were carried out in Scotland most certainly involve assault: for example, the law would not excuse mutilation on the basis that it was done to a willing partner to heighten sexual gratification. And in the range that leads up to mutilation there must be many circumstances where a jury looking at what has been established has happened in fact would say objectively 'That conduct, while done in a sexual context clearly was carried out with the intent to hurt, the intent to inflict harm': and that conduct, ladies and gentlemen, despite the consensual sexual relationship, would (inaudible) come out to an assault. And that again, if you think of it is simply the result of applying the test. If there is an attack on another person which is done with evil intent, the intent to injure and do bodily harm, then the fact that the person who is attacked in that way was willing to submit to the attack, consented to the attack, does not prevent the attack from being an assault."
The trial judge turned finally to the first charge on the indictment, and observed as follows:
"The first thing for you to decide in considering the question of an assault which arises from the first charge is to consider whether the facts have been proved objectively on the evidence and to consider whether you are satisfied beyond reasonable doubt that those facts give rise to an inference of evil intent, that's intent to do bodily harm, to injure, which is central to the charge. Without evil intent in that sense there cannot be an assault."
Having considered the trial judge's directions in relation to evil intent, in the context of the charge as a whole, we are satisfied that the jury could not have been in any doubt that they could not convict unless they were satisfied beyond reasonable doubt that the appellant had intended to cause actual physical injury. That being so, we are of the opinion that there was no misdirection in this case.
Disposal For the foregoing reasons the appeal against conviction is refused. We will continue the hearing to another date to enable the appeal against sentence to be considered.