APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Menzies Lord Brodie	[2012] HCJAC 138 Appeal No: XC19/12 OPINION OF THE COURT delivered by LORD CLARKE in APPEAL AGAINST CONVICTION by JOHN GARY TOMNEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Jackson, QC, Mitchell, advocate; Capital Defence, Edinburgh

Respondent: Di Rollo, advocate depute; Crown agent

26 October 2012

[1] The appellant went to trial at the High Court at Paisley on 11 November 2011 on an indictment containing seven charges. Charge (1) libelled culpable homicide by culpably and recklessly discharging a handgun; charges (2) to (7) libelled various contraventions of the Firearms Act 1988 by possessing, at his home address, handguns and quantities of ammunition without either firearms certificates or the authority of the Secretary of State or the Scottish Ministers. On 18 November 2011 the appellant was convicted, by majority verdict of the jury, of the charge of culpable homicide and was unanimously convicted of charges (2) to (7). The appellant appeals against conviction of the charge of culpable homicide. The terms of that charge were as follows:

"(001) on 28 April 2011 at 96 Glencairn Avenue, Craigneuk, Wishaw you JOHN GARY TOMNEY did culpably and recklessly discharge a handgun whereby Ian Langford, then residing at 1 Flaxmill Avenue, Craigneuk, Wishaw was struck on the body by a bullet whereby said Ian Langford was severely injured and died as a result of said injuries and you did kill him."

[2] At the trial the appellant himself gave evidence. Summarising the appellant's evidence in her report to this court, the temporary judge says:

"When the appellant gave evidence on his own behalf he appeared somewhat reluctant to accept the expert ballistic evidence that he must have pulled the trigger, but his position was that he did not recall doing so and he did not intend to fire the gun. His position was that he had entered the living room and had told the deceased to get the items out of the house. He suggested that the guns and ammunition lying on the floor of his living room must have belonged to the deceased. The deceased allegedly said to him, 'I'll get them later'. According to the appellant, he decided that he would remove the gun, lifted it up and it went off, killing his best friend. He deponed that there was no magazine in the handle of the pistol therefore there must have been a bullet in the chamber. He had no explanation for having lifted the gun. When cross-examined in relation to the other ammunition which was found in parts of his house, he had no explanation for that."

[3] In her report the temporary judge comments:

"There was no doubt that the appellant had not intended to shoot his friend but the Crown's position was that the charge was properly one of culpable homicide because the appellant had either deliberately pulled the trigger, not intending to kill his friend, or that he had acted with such recklessness or gross carelessness in handling the gun, that he had pulled the trigger and caused the death of his friend. The Crown also relied on the fact that the appellant, on his own admission, had consumed some alcohol and cannabis and therefore should not have been handling a gun. The position of the defence was that this was wholly accidental and that the appellant, while it was accepted that he had pulled the trigger, had not intended to pull the trigger. No defence was presented to the jury in relation to possession of the guns or ammunition.

Clearly the jury did not accept his defence and he was convicted of culpable homicide and unanimously convicted of possession of the guns and ammunition."

[4] Before this court Mr Jackson, QC, for the appellant, argued four grounds of appeal. He recognised that the first three grounds of appeal were very closely related and in effect were focused, in truth, on essentially the same point formulated in a different legal form in each case.

The first ground of appeal is in the following terms:

"There was insufficient evidence to entitle the jury to convict the appellant of culpable homicide. The defence made a 'no case to answer' submission in the course of the Trial. On the undisputed evidence, a number of things were clear.

(a) There was no assault.

(b) The gun was not deliberately pointed at the deceased.

(c) The appellant had no intention of firing the gun.

(d) The trigger was depressed accidentally (in the sense of not being deliberate) and accordingly there was no intention to depress the trigger.

(e) The only deliberate act was in handling the gun."

In all the circumstances the jury was not entitled to hold there was the recklessness necessary for the crime of culpable homicide. In this context there are a number of relevant factors:

"(f) The gun had no effective safety catch. This model, unusually, has no 'safety catch' in the trigger itself and therefore depressing the trigger results in releasing the safety catch and firing the gun. This makes the model suitable for law enforcement agencies and extremely unsafe in other hands.

(g) This model, unusually, can have a bullet in the chamber even though, as was the case here, the magazine was not in place. As a result this gun may look unloaded but may actually be loaded.

(h) The trigger may be depressed accidentally as a result of pressure on it. This pressure may simply be the result of tension in the hand of an inexperienced user, rather than an intention to depress."

The second ground of appeal is as follows:

"For the foregoing reasons (set out in paragraphs (a) to (h) of ground of appeal 1) no reasonable jury could have convicted the appellant of culpable homicide."

The third ground of appeal, as stated, is:

"The trial judge erred in allowing the jury to hold that the appellant intended to depress the trigger (see page 39 and 46 of the charge) as there was an insufficient evidential basis for that. Even if there was sufficient evidence that the trigger was depressed because the appellant had acted recklessly, which was denied, there was no evidential basis on which it was depressed intentionally. The trial judge repeated this error when answering a question from the jury (see pages 52-53 of the charge)."

The fourth ground of appeal deals with a discrete issue. It states:

"The trial judge erred in allowing the jury to hold that Crown witness Kevin Mooney had adopted a statement made by him to the police and contained in production number 10 (see pages 25-26 of the charge). This statement contained a passage of particular importance. (page 25, lines 6-9 of the charge). On no fair and proper reading of Mooney's evidence could it be said that he adopted this passage of the statement. Alternatively, the learned trial judge erred when allowing the jury to consider whether the statement had been adopted. This test, being a question of statutory admissibility under section 260 of the Criminal Procedure (Scotland) Act 1995 was one that the learned judge ought to have carried out. In doing so in the present case, the learned judge ought to have directed the jury that this evidence was inadmissible as it did not meet the statutory test of adoption."

[5] In relation to grounds of appeal 1 to 3 although the appellant's case and argument set out distinct contentions and submissions in respect of each of these, senior counsel for the appellant, in his oral submissions, did not adopt that course. For example we do not consider that we heard any distinct oral submissions from senior counsel, under reference to the relevant authorities, to the "no reasonable jury" ground of appeal. Senior counsel's position, on this branch of the case, was ultimately that there was insufficient evidence to allow a jury to reach the conclusion that the death of the deceased had been brought about by the culpable and reckless discharge of the handgun by the appellant, as opposed to the deceased having been killed by accident. Senior counsel accepted that it had been established that the appellant had taken the gun in question into his hand and that while it was in his hand it went off. As senior counsel put it: "It fired because the trigger was depressed. There had been a bullet in the chamber though no magazine. The gun could be fired with one bullet in it."

[6] The deceased was the appellant's friend. There was no suggestion that he had intended to shoot him. It was important, it was submitted to have regard to the expert evidence in the case. Both the firearms expert led by the Crown, Martin Connelly, and the expert led by the defence, David Mitchell, spoke to the real possibility of the gun in question being fired "accidentally", in particular because of the fact that it lacked a safety catch in the conventional sense of that term. The evidence showed, senior counsel submitted, how easy it was to make this gun go off particularly as the experts agreed that if one picked up this gun one's ordinary reaction would be to hold it by placing one's finger on the trigger. If a person who had carried out such a manoeuvre was also tense the depression of the trigger by his finger would be an easy thing to happen. In the state of the evidence given by the experts and the appellant himself it could not be said there was sufficient evidence to entitle the jury to consider that the gun had been discharged by the appellant culpably and recklessly as opposed to accidentally.

[7] In reply the advocate depute submitted that there was ample evidence in the case from which a jury could draw the reasonable inference that the appellant had acted in the manner libelled in the charge and that the necessary mens rea for culpable homicide existed. The appellant had not put before the court materials which could be regarded as ruling out such an inference being reasonably drawn. The evidence upon which the Crown relied as allowing the inference to be drawn was as follows:

1. The evidence of storage by the appellant of the guns and ammunition in his own home.

2. The evidence that the appellant had consumed drugs and alcohol before handling the gun.

3. The evidence that he had been voluntarily "intromitting" with the gun when it was fired.

4. The clear evidence that the discharge of the gun in question which had been handled by the appellant caused the death of the deceased.

5. The gun was handled by the appellant in the confined space of a living room in his home in the presence of other persons.

6. The gun must have been pointed in the direction of the deceased otherwise the bullet would not, in normal circumstances, have hit him.

7. Any "intromission" with a loaded firearm in that situation was attended by or invited risk of injury or death to others.

8. The evidence of the experts that five pounds of pressure at least was required to activate the trigger in the particular gun.

9. The appellant's conduct after the deceased was killed which was to seek to conceal the gun in question and other firearms and ammunition.

10. The evidence from the Crown's expert witness that it was difficult to fire this gun "accidentally". See pages 64-65 of the transcript of the witness Connelly.

The advocate depute stressed, justifiably, the fact that the appellant and, indeed, the deceased and their companion had all been drinking before the gun was fired. That produced a high level of risk arising from the way in which the gun must have been handled by the appellant. Those risks ought to have been apparent and guarded against. There was no question of the gun having discharged itself spontaneously. The evidence, on the contrary, was demonstrative of the appellant, showing a reckless disregard of the dangers involved in handling the gun and depressing the trigger when he had taken drink and drugs and that amounted to culpable recklessness or gross carelessness. The matter was essentially a question for the jury to determine whether or not that inference could be drawn and there was more than a sufficiency of evidence to entitle them, in law, to do so. The trial judge's direction had fairly and fully left open to the jury the appellant's defence that the deceased had been killed by accident.

[8] The remaining ground of appeal (ground of appeal 4), as has been noted, related to the trial judge's decision to allow the jury to consider a statement made by Crown witness Kevin Mooney. It was contended, on the appellant's behalf, that this statement contained within it a passage that was of "particular importance for the Crown case". It was particularly prejudicial to the appellant's defence and should not have been admitted. It appears, it was contended, that the trial judge had thought that the witness had adopted the statement in question and for that reason allowed the jury to consider it. Alternatively she had reached the view that the evidence could be regarded as amounting to the witness having adopted the statement and, in any event that whether or not he had adopted it was a matter to be left for the jury. While senior counsel appeared to accept that in some cases at least the question of whether adoption or not had occurred was a matter for the jury, that had not been the appropriate course for the trial judge to follow in the instant case. In the instant case, it was clear, it was submitted, that the witness had not adopted the statement in question.

[9] The statement in question was contained in Crown production 10. The trial judge in her report to this court provides the following information regarding the role which the statement played at the trial. At pages 5 to 7 of her report she states:

"The only Crown witness to the tragic event was Kevin Mooney. He gave evidence on 11 and 14 November. He had to be warned in the course of his evidence, but outwith the presence of the jury, about prevarication. Mr Mooney testified that all three men had had some alcohol and cannabis. He claimed that he, Mooney, was heavily under the influence of alcohol at the time. (The appellant's position in evidence was that he, namely the appellant, was not affected by the alcohol or the cannabis that he had consumed). With regard to the actual event, the witness Mooney suggested in evidence that he was sitting on the couch within the appellant's living room while the deceased was seated on the floor. Mooney heard the appellant, who was standing, say something like, 'You have to leave with that' or 'Get those out of here' or words to that effect. He then saw the appellant bend down and pick something up with both hands. The witness demonstrated this. It must have been a gun because it went off and he then noticed the deceased was injured. The Crown then put his police statements to him. The important statement from the Crown point of view was contained in Crown production 10. It took a little time to take the witness through the relevant parts of this production. His initial general position was that he was telling the police the truth. When the specifics were put he appeared to change his position, at least in part. The part with which issue now appears to be taken is contained in page 1 of production 10, last paragraph, which states, 'Jonesy was showing Langy something. As I went to sit on the couch I heard a bang and I saw Jonesy with a gun then Langy groaning in pain.' ('Jonesy' refers to the appellant and 'Langy' to the deceased.) Regarding the first sentence of that quoted, the following exchange took place. The witness stated that he had not seen the appellant show anything. He was pressed by the advocate depute and he conceded that the words appeared on the statement and that he was trying to tell the police as much as he could about this incident. The advocate then put the following to him, 'I suggest to you Mr Mooney that that is in fact what you did say to the police and that is what you said, isn't it?' The witness's response was 'Right'. I did not hear what he said and I asked what his response was and he said, 'What, yes'. My impression, and the view I took at the time, was that the jury would be entitled to conclude that the witness had conceded that he had given that statement to the police, that he had told the truth, and in particular that he had told officers that when he was in the living room he had seen the appellant was 'showing' the deceased 'something'. The witness's position throughout his evidence was that thereafter, as he went to sit down on the couch he heard a bang and he saw the appellant with a gun and the deceased groaning in pain. He also stated that the gun went off as the appellant stood up with it. He accepted that he did not however tell the police that the appellant had told the deceased to 'Get those out of here' or words to that effect. The Crown were challenging the truth of this piece of evidence, namely, that the appellant had asked the deceased to leave or remove items. The relevance of this was that the appellant was now claiming that the deceased brought the weapons to the house whereas the Crown position was that the weapon was in the house of the appellant before the arrival of the deceased. The Crown suggestion therefore was that Mooney had made this up to assist the appellant. In short, Mr Mooney's evidence about his statements or parts of it varied. When dealing with this witness's evidence I reminded the jury of this, but in the end of the day I (had) to leave the matter to the jury. Mr Mooney had earlier lied to the police about the shooting in the house. He tried to mislead the jury about the signature on the witness statement only eventually conceding it was his after a warning from me outwith the presence of the jury. The jury would have been entitled in this case to consider what Mooney said to the police in his statement as the more accurate version of what occurred but only if he conceded that he told the truth to the police and if they accepted it was true."

[10] Senior counsel for the appellant before this court submitted that words in the statement "Jonesy was showing Langy something" were particularly damaging evidence against the appellant because it, in some way, undermined his defence of accident and also damaged his credibility. Having regard to the transcript as to what the witness actually said in his evidence at the trial, under reference to production 10, it could not be said that he had adopted that particular part of his statement, whatever else he might have done. The trial judge should have reached that conclusion and not allowed this evidence to be considered by the jury. Instead of that she apparently considered it was a matter for the jury simply to pick and chose as to which parts of the statement as a whole, including the offending part, they chose to accept. Reference in particular was made to a passage in the witness's evidence at page 84 of the transcript and also to what he had to say at pages 97 to 100 which clearly demonstrated, it was said, that the witness ultimately had never adopted this part of the statement. What had happened in this case, was in effect trial by previous statement. This was contrary to established principles of our law of evidence and, it was suggested, there were disturbing signs in some previous cases of the law, wrongly, being developed somewhat along these lines. The passage in question was not without substance, because the jury might have taken from it that the appellant had a prior connection with the gun itself before it was fired. Senior counsel in making the submissions made some reference to the decision of the court in A v HM Advocate 2012 SCCR 84.

[11] In her reply to this ground of appeal, the advocate depute submitted that the witness Mooney, at a certain stage in his evidence, had adopted the position regarding the statement which entitled the trial judge to refer to his possibly having adopted it. Reference was made, in particular, in this respect, to page 80 of the transcript of the witness's evidence. Under reference to the decision of this court in Hughes v HM Advocate [2010] HCJAC 84, the advocate depute submitted that, in that situation, it was appropriate for the judge to leave the matter to the jury to decide whether the alleged offending part of the statement had been adopted by the witness or not. Reference was also made to the decision in A supra at paras 11 to 13. Accordingly there had been no misdirection, in this respect, by the trial judge.

[12] But in any event, submitted the advocate depute, the alleged offending passage could have had no material impact on the jury's assessment of the appellant's credibility or reliability. Reference in that respect was made to the trial judge's report at pages 13 and 14 where she says,

"In any event, I am not entirely sure that this evidence added a great deal to the Crown case in the sense that the defence accepted that the appellant must have pulled the trigger. The appellant's position was it was accidental, whereas the Crown's position was that the pulling of the trigger was intentional or reckless or grossly negligent. It was obvious that the gun must have been pointed in the direction of the deceased, otherwise the deceased would not have been struck. The prior statement of Mooney to the effect that the appellant was showing something to the deceased could have had the effect of supporting the Crown position, namely that the appellant was lying when he claimed the guns belonged to the deceased. That statement was however not crucial to the Crown case in my view."

[13] The advocate depute took matters somewhat further in her submission. The words in the allegedly offending passage did not indicate or impute ownership of whatever it was that was being shown to the deceased by the appellant. The "something" itself, which was referred to, never became anything more specific than that. The appellant himself, in his evidence, spoke to lifting up the gun in question. Even if the passage in question, in the statement, should not have been left for the jury to take into account, which was not accepted, no miscarriage of justice had occurred having regard to what the true issue in the case had been in relation to charge 1.

Decision
[14] We have reached the conclusion that none of the grounds of appeal has any merit. As regards the territory covered in the first three grounds of appeal, we agree entirely with the position adopted by the advocate depute before us and which we have set out above. The evidence was such that it was consistent with either reckless or grossly negligent conduct on the part of the appellant. The possibility of the killing being accidental was fully rehearsed on behalf of the appellant, before the jury and both of the options, namely of reckless or grossly negligent conduct, on the one hand, or accident on the other hand, were rehearsed by the trial judge in her charge to the jury. She made it clear that it was for the jury to reach a conclusion as to whether the Crown had proved to the necessary standard that the deceased's death had been caused by the appellant in the way libelled in charge 1. The factors which the advocate depute drew from the evidence, which are set out above, in our opinion, provided a consistent and powerful body of material from which the jury were entitled to draw the inference that they must have done, having regard to the verdict that they arrived at. There was no evidence, in any event, which clearly excluded that result being one which any reasonable jury, properly directed, would arrive at. The trigger must have been depressed by the appellant when pointing the gun at the deceased and having regard to all the surrounding circumstances that, in our view, clearly could be regarded as amounting to grossly negligent or reckless behaviour.

[15] The discussion in relation to the fourth ground of appeal strayed into certain criticisms, or observations being made about the current state of the law in relation to the admissibility of previous statements on the basis that they have been "adopted" by the maker of them. The recent decision in A may be said to give some basis for some of those observations at least. It was suggested to us that trial judges are finding considerable difficulty in applying with confidence the current law in these matters and it may well be that a reconsideration of the topic by a full bench would be profitable. It may, also, be the case that the way in which the trial judge expressed herself in the present case is illustrative of the difficulties and possible confusions that this branch of the law of evidence presently causes. In her report to this court she states:

"In any event, I am not clear that this was a case of adoption in the sense that, at one point, the witness accepted that he said the sentence I have quoted above ('Jonesy was showing Langy something') and that it was true, albeit his position changed in the course of his evidence, as I have pointed out earlier. In my view, that is not a situation of adoption but a situation of prompting the witness. Be that as it may, where a witness says different things, it is not for me to tell the jury that they should prefer one part of a witness's evidence as opposed to another part. Accordingly, I felt that I had to leave it to the jury to make of that evidence what the jury thought fit."

[16] Before us the question as to what constituted "adoption" at common law, (Jamieson (No. 2) v HM Ad 1984 SCCR 610), the effect of section 260 of the Criminal Procedure (Scotland) Act 1995, the situation where part of a statement is adopted but other parts are not and the kind of situation which the trial judge in the present case in the paragraph from her report just cited considered she was dealing with were all touched upon in discussion. We do not, however, consider it necessary for us to reach any concluded view on these matters in the context of the present case for the following reasons. Even if we were to accept that, for some reason, the jury should have been told to ignore the passage in the statement of the witness Mooney complained about, we are satisfied that no miscarriage of justice arose because of any failure to do so. We agree entirely with what the advocate depute said in her submissions, echoing what the trial judge says in her report, namely that the passage in question would not have been considered by the jury in any material respect as compromising the appellant's defence to charge 1 (as opposed, perhaps, to his position with regard to the other charges) or that it was seriously putting a question mark over his credibility. The essential issue for the jury to determine in respect of charge 1, as we have already indicated, was whether the gun was fired accidentally by him or culpably as libelled in the charge. The remark which the witness Mooney made in the statement, in our judgment, would have played no material, if any, part in the jury's resolution of that question. In our opinion, senior counsel for the appellant, in his submissions, was inviting us to read too much into the words in question, particularly, in a situation, where the appellant admitted handling the gun and where the evidence demonstrated that he must have pointed it at the deceased. In that situation any question of what he said about the gun before was not germane to the criminal nature or, otherwise, of his act in depressing the trigger. For the foregoing reasons we reject the fourth ground of appeal.

[17] In all the circumstances the appeal falls to be refused.