APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Brodie Lord Drummond Young	[2015] HCJAC 10 XC441/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL AGAINST CONVICTION   by   IAN GEDDES Appellant;   against   HER MAJESTY’S ADVOCATE Respondent:   _____________

Act: J Scott QC (sol adv), JP Mowberry (solicitor advocate); Capital Defence (for Bridge Litigation, Glasgow)

Alt: A F Stewart QC AD; the Crown Agent

 

13 February 2015

Introduction
[1]        On 12 June 2013, after a trial which lasted 6 weeks at the High Court at Edinburgh, the appellant was convicted for the second time of the murder of Charles McKay on 18 and 19 March 2003 at 23 East MacKenzie Park, Inverness, by forcing his head into a pillow and smothering him whilst intoxicated with alcohol and medication.  He was also convicted of attempting to defeat the ends of justice by placing the body of the deceased at the bottom of a flight of stairs, pretending to the emergency services that he had returned to the house and found the body there and disposing of the pillow.  The central issue at the trial had been whether the deceased had been killed by smothering, as distinct from, for example, accidentally falling down stairs or succumbing to the effects of ingesting a combination of excessive quantities of alcohol and prescribed drugs.

[2]        The appellant had previously been found guilty of the same offences on 11 March 2005, when he was also convicted of: (a) defrauding the deceased of substantial sums of money over the 9 months or thereby prior to his death; and (b) attempting a further fraud in connection with a purported will created in the deceased’s name.  He had appealed against the convictions for murder and the ends of justice offence on grounds primarily concerned with the discovery of evidence which had not been available at the trial (Criminal Procedure (Scotland) Act 1995, s 106(3)(a) (3A and C)).  The new evidence was neuropathological; Dr Safa Al-Sarraj having expressed an opinion, which was different from that given at the trial by another neuropathologist, that the deceased had suffered a moderate (rather than a mild) head injury which, in contrast to smothering, might have caused his death.  This had prompted the appellant’s expert forensic pathologist, Dr Marjorie Turner, to alter her view on the cause of death from “unascertained” to, inter alia, “head injury…”. 

[3]        The court ([2012] HCJAC 8) applied the McInnes test (McInnes v HM Advocate 2010 SC (UKSC) 28, Lord Hope at paras 20 and 24), following the views expressed in Fraser v HM Advocate 2011 SC (UKSC) 113 (Lord Hope at paras 37 and 43), quashed the conviction and authorised a re-trial.  In addition to the new neuropathology, the court heard evidence from the doctors who had expressed their views at the original trial diet.  However, the court did not attempt to reach a concluded view on the impact of the new evidence on the testimony which had been given at the trial and thus, applying their judicial experience, on whether a miscarriage of justice had in fact occurred.  It did not consider that this was the role of the appellate court.  It was sufficient, in the court’s view (Lord Emslie, delivering the opinion of the court, at para [15]), for the appellate court to take only a “small step” by holding that there was a real possibility of the jury having returned a different verdict, had it heard the new evidence.  The existence of that possibility was sufficient to overturn the jury’s verdict.  Such an approach runs contrary to the test for a miscarriage of justice in non-Convention appeals emphasised subsequently in Brodie v HM Advocate 2013 JC 142, LJG (Gill) at paras [34] et seq.).  That test is whether, taking “an overall view of the circumstances”, a miscarriage of justice can be seen to have occurred (ibid para [42]). 

[4]        The present appeal is based upon a contention, under section 106(3)(b) of the 1995 Act, that the verdict was one which “no reasonable jury, properly directed, could have returned”.  The approach to this specific ground, within the overall context of miscarriage of justice, is well settled.  It is an objective exercise in which, for an appellant to succeed, the court must be able to hold “that no reasonable jury could have returned a guilty verdict on the evidence before them (King v HM Advocate 1999 JC 226, LJG (Rodger), delivering the opinion of the court, at 228).  The court has to “assess the reasonableness of the verdict with the benefit of its collective knowledge and experience” (AJE v HM Advocate 2002 JC 215, LJC (Gill) at para [30], followed in Gage v HM Advocate 2012 JC 319, LJG (Hamilton), delivering the opinion of the Full Bench, at para [29]).  It is only in the “most exceptional of circumstances that an appeal on this ground will succeed” (Harris v HM Advocate 2012 SCCR 234, Lord Bonomy, delivering the opinion of the court, at para [67]). 

[5]        One reason for the test being set at so high a level is that there will often be, as there was in the present case, an acceptance that there was a legal sufficiency of evidence against the accused.  The argument will accordingly often boil down to one which seeks to persuade the court that the jury could not reasonably have accepted the testimony of a particular witness or witnesses, or part of it, as credible and reliable.  Since that is traditionally primarily the province of the jury to assess (ibid), it will only be in rare cases that the court will be persuaded that no reasonable jury, properly directed, could have accepted the testimony in question; even if, in the modern era, it remains important not to “interpret section 106(3)(b) out of existence by excessive deference to the judgment of the jury” (AJE (supra) LJC (Gill) at para [35]).  Nevertheless, the task facing this appellant can be seen as a daunting one, given that there have been two successive guilty verdicts against him from quite differently constituted juries.

[6]        This appeal is thus about whether what the second jury did, in returning verdicts of guilty, was something which no reasonable jury could have done.  That issue involves a consideration of the whole evidence at the trial.  In that connection, there were two quite different categories of testimony: (1) lay evidence of what had happened prior to, at and after the time of death; and (2) detailed medical evidence about the cause of death.  Any analysis of the reasonableness of the verdict is bound to involve a consideration of the way in which these two different categories interlinked in providing the jury with appropriate material on which to base their verdicts.

 

The Evidence
Financial frauds
[7]        The deceased was aged only 48 when he met his death on 18 or 19 March 2003.  He had worked offshore as an electrical engineer, having been given a permanent post in July 2002.  Notwithstanding the steadiness of his employment, when he was onshore he tended to drink heavily.  He lived in East MacKenzie Park, Inverness, which had been his former matrimonial home in which, prior to his separation in 1992, he had lived with his wife and two daughters.  He had recently inherited his mother’s house in Charleston View.  She had died on 1 June 2002 and had left the house to the deceased, as distinct from his siblings, apparently because he was said to have provided the money for its purchase from the local authority.

[8]        The medical records of the deceased dating from 1981 were examined for entries relating to his drinking and mental health.  These indicated that he had a long term alcohol problem.  During the 1990s and 2000s, he had visited his general medical practitioner in relation to excessive alcohol consumption.  In 1993 he had been prescribed a low dosage of anti‒depressants.  In 2000 there was some concern amongst his friends that he had been talking about suicide, but, according to his regular GP, whom he attended with reasonable regularity, no real suicidal ideation or intent was present then or subsequently.  He was examined for possible testicular cancer in October 2002, but in November he had been given the all clear.  An entry dated 13 December 2002 noted that he had been drinking heavily since the death of his mother.  He was signed off work because of viral illness until 23 January 2003 and failed to return to offshore duties thereafter because of continuing difficulties.  He had significant problems with his hip and had been prescribed painkillers in the form of co‒drydamol tablets.

[9]        One important feature of the deceased’s character was his attitude to debt.  He was said by his family never to have been in debt.  He used debit cards and an American Express charge card, but he did not believe in using credit cards.  Another significant aspect of the deceased’s life was his lack of computing skills.  Although he had bought a computer, which he kept at home, he required the help of others to use it.

[10]      The deceased and the appellant were cousins.  The appellant, who also drank heavily, had rekindled his childhood friendship with the deceased in the Summer of 2002.  In due course, the Crown were to argue that this had been a deliberate ploy on the appellant’s part, prompted by his contrasting financial position.  The appellant had been sequestrated on 4 December 2001.  He was not employed.  There were consequent difficulties for him in obtaining any form of credit.

[11]      The appellant was allowed to move into the house at Charleston View.  He began perpetrating a series of simple but lucrative frauds upon the deceased; normally by opening a credit account for his own use in the deceased’s name and forging direct debit instructions.  The direct debits enabled him to syphon money from the deceased’s bank account to pay for sums incurred by his use of the new accounts.

[12]      The appellant’s fraudulent conduct was described by the trial advocate depute as plumbing “the depths of deception and betrayal”.  It had started as early as 23 July 2002, when the appellant opened an Egg internet account in the deceased’s name, using his own computer at Charleston View.  He gave the phone number at that address, along with a mobile number also effectively attributed to him (it was in his son’s name, but his son knew nothing about it) as the primary methods of non‒internet communication.  Although its purpose may not be immediately clear, the appellant also forged a letter from the deceased, dated 22, but created 26, July 2002, relative to this account.  A recording of the appellant activating the relative Egg card, by pretending to be the deceased, formed one basis for the advocate depute’s critique of the appellant as a “convincing and accomplished liar”. 

[13]      At the same time as he opened the Egg account, the appellant obtained a Capital One credit card, again using the Charleston View address.  In respect of both lenders, the appellant rapidly ran up debts of £11,000 and £4,000 respectively as a result of repeated cash withdrawals.  These were used primarily to buy alcohol and cigarettes.  By the end of 2002, the borrowed sums approached the credit limits on each account.  Undaunted, in December 2002, the appellant obtained a RBS Avanta Mastercard and a Cahoot loan in the deceased’s name; quickly running out of credit as he obtained another £2,900 and £7,400 respectively using these new facilities. 

[14]      The appellant engaged in one further fraudulent activity, which was designed to avoid the detection of his financial misdeeds.  This was by securing the redirection of the deceased’s mail, which had been destined for East MacKenzie Park, to his own residence at Charleston View.  This would have allowed him to filter out from the deceased’s correspondence any incriminating financial statements, whilst returning other mail to the deceased undetected.  In due course, the deceased did discover this redirection and protested to the Post Office.  Whether he ever suspected the appellant is not known.  In any event, by using these schemes, the appellant obtained £32,000 or thereby over some 9 months.

[15]      At the beginning of 2003, the deceased had stopped work because of his deteriorating health.  His drinking had grown worse, especially when in the company of the appellant.  The Crown maintained that the appellant had encouraged the deceased to drink, whilst ostensibly suggesting that he was, to the contrary, assisting him to rid the habit.  The deceased’s neighbours certainly spoke to his drinking becoming more extreme in the months immediately prior to his death.  Meantime, as was inevitable, the funds going into his bank account slowed and then ceased.  A stage was fast approaching when the deceased’s account would no longer be able to service the debt fraudulently incurred by the appellant.  In addition, the appellant’s trustee in bankruptcy was pressing him to complete a statement of his affairs.  The trustee’s firm, Tenon Recovery, was in pursuit.  These efforts might soon have uncovered the appellant’s nefarious actings.

 

The will
[16]      One of the more extraordinary circumstances of the case came in the form of a letter delivered by post to the deceased’s law agent in Inverness on the very morning when the deceased’s body was found.  This contained the following:

“In the event of my death, I want my cousin, Ian Geddes, to be the sole executor of my estate.  I also want to bequeath the sum of £25,000 in cash to my cousin, Ian Geddes, from the proceeds of my estate.”

 

This document was created on the computer at East MacKenzie Park by, as was undoubtedly proved, the appellant, who had also forged the deceased’s signature upon it.  He was shown to have bought a quantity of first class stamps on the previous day by using the Capital One card.  As the Crown would in due course maintain, the posting of this letter on 18 March meant that the die was well and truly cast.

 

The discovery of the body (19 March 2003)
[17]      The appellant did not give evidence.  Information on his movements at or about the time of death came from two sources.  The first was his statements to others after the death and the second was observant neighbours.  The centrepiece of the preface of this chapter, however, is the known fact that it was only at 1.34pm that the appellant called the emergency services (999) to report that he had found the deceased lying at the bottom of the stairs “as cold as ice”. 

[18]      When asked on the telephone whether he had seen what had happened to the deceased, the appellant had replied:

“No, I’ve just come in.  He’s been drinking for 3 months.  I’ve been trying to get him off.”

 

When the ambulance crew arrived, the appellant had said to them that he had last seen the deceased at about 11am.  He had been staying with him to get him off the drink.  He had gone to the house that he usually stayed in (presumably Charleston View) to check for mail and had come back to find the deceased’s body in situ.

[19]      Shortly thereafter, when spoken to by the police, the appellant had said that, at about 8.20am, he had found the deceased on “the sofa, incoherently drunk”.  He had made him a coffee, but he couldn’t drink it.  He had helped him upstairs and put him to bed.  He had then left and gone down town.  He had returned between 10 and 11am to pick up a letter.  He had assumed that the deceased was still in bed, but had not checked.  He had then left again and returned “around the back of one”, when he had found the deceased “very cold to the touch”.

[20]      The appellant therefore admitted to being in the house overnight and at various other times during the morning.  Unfortunately, there is no accurate information on the time of death.  The locum general medical practitioner (Dr Von Delft), who attended shortly after the emergency call, described the body as cold, but not extremely cold.  The undertaker, who had arrived at about 3pm, said (without objection) that the death did not look recent.  He had presumed that it had occurred in the early hours of the morning.  On the evidence, therefore, it would appear that the deceased had met his end at or about a time when the appellant was either in the house or had recently left it.

[21]      Set against the timings given by the appellant, what is also known is that, at 10.46am, the appellant had telephoned the deceased’s law agent asking him if he had received the letter.  The call purported to be from the deceased but, given the proved source of the letter and what followed, it must have been from the appellant posing as the deceased.  The agent made an appointment to see the deceased at 2.30pm on the following day; an appointment which was kept by the appellant himself (see infra).

[22]      At 11.07am, a taxi was booked to take the appellant from the house at East MacKenzie Park to the Innes Bar, where the appellant had left his car.  The appellant was dropped off at the Bar, which is near the city centre, at about 11.15‒20am.  According to one neighbour, he returned to the house at about 11.45am, when, unusually, he drove right up the driveway to the garage and went into the house “3 or 4 times”.  The car was driven away and returned to the same area; this time with the appellant going into the house for about an hour before driving away again.  Another neighbour said that the car was (back) in the driveway at about 1.05pm, although two others placed its return at between 1.15pm and 1.20pm.  Whatever the precise time, there was, on the evidence, a substantial delay between his arrival home and his call to the emergency services.

[23]      Dr Von Delft was informed that there were no suspicious circumstances.  He did, however, go into the deceased’s bedroom.  He saw two pillows with blood on them.  The first was pink and was lying on the floor beside the bed.  It had dark “altered” “coffee ground blood” on it.  The second was white.  It was on top of the bed.  It had “fresh” (ie bright red) blood on it.  He made a note of this in his records.  The pillow was photographed in situ prior to its removal by the appellant (infra) and the photograph was shown to the jury at the trial.   Dr Von Delft said that the appellant had told him that the deceased had been vomiting blood on the previous weekend.  In these circumstances, the doctor erroneously certified the cause of death as “gastro‒intestinal bleed”.

 

Further developments (the pillow)
[24]      The appellant began making arrangements for the deceased’s funeral with the undertaker as soon as the body had been removed from the house.  This was despite the existence of the two daughters, with whom the deceased had remained on good terms.  Indeed, he was planning to go to have his tea with one of them, namely K, on the following evening.  Later that same evening (although the timing of this was challenged), the appellant visited a Mrs M, who lived above the Innes Bar.  She testified that he had told her that he had been left £25,000 by the deceased.  This was founded on by the Crown in relation to the identity of the creator of the purported will.

[25]      According to a neighbour, the appellant returned to the deceased’s house in a drunken state at about 3.00am on the following day.  Later that day, the deceased’s daughter K went to tidy the house.  She was surprised to find the appellant there.  What happened next was something which was just as extraordinary as the creation of the will.  A dustbin lorry drove into the street, whereupon the appellant went upstairs to the deceased’s bedroom, removed the pillow, which Dr Von Delft described as having the fresh blood upon it, and put it in the bin for immediate collection.  It was never recovered.  K did ask him what he had been doing and he had told her.  Other items in the bedroom, including the other pillow, which were also bloodstained, were not disposed of in this manner.

[26]      In the afternoon, the appellant appeared for the deceased’s appointment with the law agent.  He informed him of the death.  He said that he did not know whether the deceased had made a will.  He said that he did not think that he had.  This was not, of course, consistent with the evidence that it had been the appellant who had created the letter.  He also told the law agent that the deceased had been coughing up blood on the previous weekend and that he (the deceased) knew that he was going to die.  The law agent advised the appellant that the letter did not constitute a valid will.  On the assumption that the appellant had created the letter, this must have been a considerable disappointment to him.  The appellant made an attempt at suicide sometime thereafter.

[27]      At a subsequent meeting at K’s flat between K, her mother and the appellant, the appellant mentioned that the deceased had said that, if anything happened to him, the appellant was to be his executor.  K began to suspect that something was not right.  She had previously noticed a bank statement in the house, but had been unable to find it when she had gone back to look.  It had been then that she had switched on the deceased’s computer and discovered the purported will.  A police investigation was instituted.

 

Post Mortem Examination
[28]      Drs Rosslyn Rankin and James McPhie, consultant pathologists at Raigmore Hospital, carried out the post mortem examination on the deceased on 21 March 2003.  Dr Rankin certified the cause of death as “airway obstruction and alcohol and dihydrocodeine intoxication” on 2 July 2003.  She had done so in consultation with Dr McPhie and having spoken to Mr David Macintyre, consultant oral and maxillofacial surgeon at the same hospital, that day.  Dr Macintyre had been asked specifically about certain injuries to the deceased’s mouth (infra) and had said that, whilst that to the lower lip was of a type found in falls, road traffic accidents and assaults, that to the upper frenulum (infra) was unusual, occurring at a site normally protected by the nose.  His suggested mechanism was gagging, gripping or violent rubbing of the face.  The PM report was only completed on 12 December 2003, some 9 months after the death.  The delay was caused partly because toxicology and neuropathology results were awaited.  The report concluded that death had been caused by “airways obstruction due to smothering” with a contribution from intoxication with alcohol and dihydrocodeine.

[29]      The physical findings were not in dispute.  The report referred first to coarse petechial haemorrhages in the normal post mortem hypostasis across the shoulders and the lower spine.  On the head and neck there was: (1) blood stained fluid issuing from the mouth; (2) congestion of the face with two conjunctival petechial haemorrhages; (3) a small irregular laceration on the ridge of the nose; (4) blood stained mucus in the mouth; (5) a superficial laceration on the frenulum (a small membrane connecting the upper lip and gum) with adjacent discontinuous haemorrhaging, a superficial laceration on the mucosa (the lining of the mouth) at the midline of the upper lip, a single petechial haemorrhage and, overlying this on the skin aspect of the upper lip, a faint discontinuous abrasion; (6) an irregular laceration with a few petechial haemorrhages on the mucosal aspect of the lower lip and, overlying this on the skin aspect, an abrasion  at the midline; and (7) a superficial abrasion on the point of the chin.

[30]      An internal examination of the head revealed an area of coarse petechial haemorrhage in the frontal area with discontinuous bruising in the parietal region in line with the ears.  There was a further bruise above the right ear and symmetrical bruises on the back of the head.  The skull was intact and there was no evidence of bleeding.  The mastoid air cells were haemorrhagic.  There was ill defined subcutaneous bruising underlying the abrasion on the chin.

[31]      The brain had been referred to Dr James MacKenzie, a consultant neuropathologist at Aberdeen Royal Infirmary, who had compiled a report dated 27 October 2003.  This said that there was very little by way of pathological abnormality.  The presence of very occasional axonal (nerve fibre) swelling suggested a minor head injury, two or more hours before death.  This was unlikely to have contributed to any unconsciousness.  It would not have played a part in the death.  There was no other evidence of traumatic or hypoxic damage to the brain.  Dr MacKenzie’s conclusion was that there had been “very minor traumatic axonal injury …”.

[32]      On the trunk, there was: (1) a superficial laceration to the point of the elbow; (2) a recent bruise to lower left thigh; (3) an irregular area of superficial abrasion on the mid thoracic spine; (4) a superficial abrasion, with skin tags superior, overlying the distal lumber spine; and (5) a bruise on the lower left back near the midline.  There was discontinuous bruising in the subcutaneous fat and muscle overlying the 2^nd to 7^th cervical vertebrae.  There were other areas of bruising on the shoulder blades, on the lower back and the lumbar spine.

[33]      The lungs displayed generalised severe oedema and congestion of the lower lobes.  The stomach contained 35mls of dark brown mucoid fluid.  The liver was enlarged.  The bladder held 80mls of urine.  There was ulceration of the oesophagus (just above the stomach).

[34]      Toxicology revealed that the deceased had a concentration of 253mgs of dihydrocodeine and 230mgs of paracetamol per litre of blood.  The blood alcohol reading was 248mgs per 100mls.  The urine alcohol proportion was 270mgs.

 

The Medical Experts
CROWN ‒ DRS RANKIN AND McPHIE
[35]      Drs Rankin and McPhie gave evidence over a period of some 5 days.  They explained their reasoning for concluding that death had been caused by smothering.  Each was cross‒examined at considerable length; with the competing explanations proffered by the defence pathologists and others, as contained in various reports, being put to each in detail along with the new neuropathology.

[36]      Both doctors accepted the limitations of their expertise relative to smothering.  They had had practical experience in only one case prior to that of the deceased, although Dr Rankin had encountered one further instance subsequently.  Both doctors were general pathologists, whose forensic work formed only part of their practices.  Dr Rankin, for example, would carry out only about 5 suspicious death PMs in a given year.

[37]      Both doctors were referred to a number of medical textbooks and articles in reputable journals in order to explain the general effects of smothering.  It is usually achieved using pillows, bedding or just the hands.  The victims tend to be debilitated or incapacitated by, for example, drugs.  It is extremely difficult to smother an adult in full control of his faculties.  There are usually no marks on the face, which is not normally congested.  There are normally no petechiae on the sclerae or the conjunctiva (parts of the eyes).  Abrasions to the face may occur if the victim puts up resistance.  Even in those who can muster only a minimal struggle, there may be abrasions to the nose or chin from fingernails and contusions to the lips from the use of manual pressure.  The lips, gums and tongue may be bruised or cut. 

[38]      The coarse petechial haemorrhages tended to occur after death if there has been increased pressure in the blood vessels at the time of death; caused by, for example, asphyxia.  The two conjunctival petechial haemorrhages had resulted in life, also from increased blood pressure.  These were common in heart attacks, but could be found in asphyxial types of death.

[39]      Dr Rankin described the laceration to the ridge of the nose as unusual, because it was not surrounded by any abrasion or bruising; as would be expected in a fall.  In the context of smothering, it would be caused by a fingernail.  Dr McPhie agreed that it could be caused by a fingernail (belonging to either the attacker or the victim), but he did not think that was likely in a smothering using only a pillow, as distinct from a combination of pillow and hand.

[40]      The literature described torn frenula in smothering cases.  In a study of 134 asphyxial deaths, a torn frenulum had occurred in two of the six smotherings recorded.  Four of these had involved injuries to the mouth and two showed fingernail marks around the nose.  Whether any of the smotherings had involved a pillow was not recorded.  The mouth injuries to the deceased were similar to one of the illustrations of a smothered child in the textbooks. 

[41]      In falls down stairs, the cause of death was usually a head or neck injury.  Dr Rankin excluded a fall as a cause because of the pattern of injuries to the head and face.  As she succinctly put it:

“The most important thing is the… pattern of injury confined to the nose and the mouth areas, and the lack of any injury to other prominent areas of the face, in particular around the eyes and forehead”.

 

The torn frenulum was particularly unusual.  It was normally seen only when there was a much more severe facial injury.  The laceration to the lower lip had been caused by the lip being pushed up into the upper teeth.  These injuries were consistent with compression.  As Dr Rankin explained in cross‒examination, if it were assumed that the facial injuries were caused in a single event, she could not envisage how a fall would result in this specific pattern.  Dr McPhie was largely in agreement with all of this reasoning.

[42]      Drs Rankin and McPhie had looked at 23 cases, in which they had been involved, where there had been falls down stairs.  Although the results were not “statistically significant”, none had this pattern of facial injury.  Dr McPhie accepted that it was possible that the injuries could have been caused in a fall.  However, they would be “very, very unusual in a fall downstairs”.  The injuries to the mouth could have been caused in a fall upstairs, by striking one of the treads.  The nose injury was different.  It was difficult to see how that could arise, in combination with the mouth injuries, without the bulbous part of the nose also being involved.

[43]      Dr Rankin was of the view that the 4 symmetrical bruises on the scalp might have been caused by finger pressure.  Dr McPhie agreed, even if he would have expected to have found 5 marks.  He thought that these injuries could have been caused by the head bumping off the steps of a stairway.  The absence of evidence of bleeding in the head was indicative of there having been no significant head injury.  The new evidence of axonal damage had not persuaded Dr Rankin to change her mind.  The views of the 3 neuropathologists differed.  Looking at the broad picture, there was still no significant head injury.  There was no evidence of significant trauma to the scalp, the tissues around the skull or the skull itself.  There was no bleeding around the membrane between the skull and the brain.  There was no bleeding on the surface of the brain.  The axonal damage was not diffuse, although it was present in more than one or two areas.  It was mild to moderate.  If a person had been lying unconscious, in a comatose state from the effects of a head injury, drugs and alcohol, the laceration to the lip would have bled significantly.  It had not done so. 

[44]      Dr McPhie had considered Dr Al-Sarraj’s report (infra), but he too did not think that the “subtle changes” found by the neuropathologists pointed to a significant head injury.  Each had interpreted the findings differently.  There had been some injury to the head, whether caused by a blow or a fall, sometime before death.  That had been entirely coincidental.  There was no evidence of a major head injury, such as a skull fracture, bleeding into the membranes covering the brain or bruising to the brain itself.  There was therefore no gross injury to the brain.  The microscopic changes were of a minor nature.

[45]      Dr Rankin considered that the injuries to the trunk were consistent with the skin being scraped across a surface, including a situation where the body had been dragged by the feet.  The bruising of the lower back could have been caused by the use of a knee on the back in the course of smothering.  Dr McPhie thought that the injuries to the back may have been caused by a feet‒first slithering down stairs, but he did not regard them as relevant to smothering.

[46]      Dr Rankin was of the view that the haemorrhagic mastoid cells provided further evidence of congestion at the time of death.  Dr McPhie disagreed.  Dr Rankin explained that no fresh (ie bright red) blood had been found in stomach, so there had been no recent bleeding from the ulcer.  The ulcer had been removed and examined in its entirety.  No blood had been seen in the stomach, even if, as Dr Short (infra) had reported, some unquantifiable amount may have been present.  

[47]      The combination of alcohol and dihydrocodeine would have had a depressant effect on the deceased.  It could induce coma and theoretically cause death.  Dr Rankin did not think that it had done so in this case because such a death did not explain the injuries.  Deaths from chronic alcoholism usually occurred when the level of alcohol was low (ie from the effects of withdrawal).  If the deceased had been found in his bed, Dr Rankin would, in the absence of pathological findings, have attributed his death to an overdose of dihydrocodeine combined with alcohol.  The estimate of the deceased having consumed some 37 co-drydamol tablets was consistent only with an attempt at self-harm or suicide.

[48]      Dr McPhie also said that there was no active bleeding from the ulcer, which had been microscopically examined.  There was thus no gastro-intestinal bleeding. There was no coma, because there was no large volume of urine or swelling of the brain.  The deceased did not die of natural causes or of chronic alcoholism.  In the latter, the amount of alcohol in the system was commonly low or zero.  The cause of death in that situation was either a metabolic reaction or a withdrawal symptom.  The level of co-drydamol consumed indicated an attempt at self-harm, disorientation or even suicide. 

[49]      Dr McPhie explained that, whereas each injury, taken separately, was “non-specific”, taken collectively some of them formed a cluster which fitted smothering.  He and Dr Rankin had carefully and diligently excluded all the other possibilities in coming to a conclusion that smothering had been the cause.  At the conclusion of cross‒examination, Dr McPhie repeated something which he had said on occasions throughout his testimony.  In relation to causation, he would never say never and never say always.  On that basis, he accepted that he might possibly be wrong.

 

CROWN ‒ OTHER DOCTORS
[50]      Several other doctors were called by the Crown.  Mr Macintyre, the oral and maxillofacial surgeon, had examined the deceased on 2 July 2003, by which time the body had been quite decomposed.  He had been asked for his opinion on the cause of the facial injuries, which were illustrated in photographs.  He attributed the deep laceration of the lower lip to the front teeth forcibly biting into, and almost penetrating, the lip, which had been forced or pressed onto the teeth.  He thought that smothering could have caused this injury, but it was the injury to the frenulum which had particularly suggested smothering to him.  The frenulum was normally protected by the nose and damage to it was unusual.  It had been described in the literature as caused to children who had been subjected to gagging, gripping or violent rubbing of the face.  It was accepted that, although it had not been mentioned in his report, the injury might have been as a result of a blow with the back of the hand, or some other form of trauma, rather than gripping.  The abrasion and bruising to the upper lip was related to the frenulum damage and could have been caused by compression of the lip onto the anterior nasal spine.

[51]      Dr MacKenzie was the only neuropathologist who had, as he put it, actually viewed the brain “from start to finish”.  He confirmed that, having considered Dr Al‒Sarraj’s reports, he maintained his original view that the deceased had “suffered a minor head injury a number of hours and possibly days before death and that this [had] not played any part in his death”.  Following the terms of his report dated 7 March 2011, he stated rather trenchantly that:

“the ever‒increasing amount of complex technical detail contained in the various reports produced by Dr Al‒Sarraj and myself, relating to subtle microscopic neuropathological findings, is tending to obscure the bigger picture of the condition of [the deceased].”

 

At the time of the “naked eye examination of the brain”, there was:

“nothing to suggest the presence of any significant traumatic brain injury.  The brain appeared normal.  There was no evidence of bleeding into the coverings of the brain (subarachnoid haemorrhage).  There was no evidence of brain swelling or softening …  The only evidence of traumatic brain injury is to be found at the microscopic level.  This consists of a small number of damaged nerve fibres in several different locations …  this could be called ‘multifocal axonal injury’ but the number of damaged nerve fibres … is few.”

 

In light of the criticisms which had been levelled at his work, Dr MacKenzie had repeated his original tests using modern techniques.  This had confirmed his 2003 result.  He noted signs consistent with early ischaemia or hypoxia, itself consistent with smothering.  Given the mild degree of traumatic brain injury, he did not accept that trauma had caused the ischaemia or hypoxia.

[52]      Dr MacKenzie accepted that axonal damage could now be identified as occurring as early as 35 minutes after trauma in the form of swollen axons such as those present in the brain of the deceased.  However, these could take 24 hours or more to appear.  The axonal injury could have predated the death by 36 hours or more and possibly by a number of days.

[53]      Dr MacKenzie disagreed with Dr Al‒Sarraj that the finding of axonal damage was “in keeping with moderate head injury”.  The number of damaged nerve fibres was so small as to represent only a “mild to very mild degree of head injury”.  “The finding of possible ischaemic/hypoxic neurons would be consistent with terminal brain ischaemia or hypoxia which could have been caused by a number of mechanisms, including airways obstruction …”.

[54]      Dr Colin Smith, a consultant neuropathologist at Edinburgh University, had been asked to review the work of Drs MacKenzie and Al‒Sarraj.  He had carried out a microscopic examination of the brain, noting scattered axonal injury consistent with trauma.  He did not consider it possible to draw any conclusion on the timing of that trauma.  He agreed with Dr MacKenzie that the signs suggested an older injury, but it could have been caused anywhere between 35 minutes and 4 to 6 weeks before death.  At best he estimated it as between 30 minutes and 15 to 16 hours.  On the severity of the trauma, this could have been anywhere between mild and severe.  He disagreed with much of Dr Al‒Sarraj’s methodology, with his view that there was a multi‒focal axonal injury and that it was likely to produce unconsciousness.  He did not consider that any signs of ischaemia were significant.  He could not say whether the head injury had, or had not, contributed to the death.  He would not have, as Dr MacKenzie had, categorised the injury as mild or very mild.  He simply could not say.

[55]      Dr Peter Jerreat was an accredited Home Office pathologist.  He expressed the view that a male with the appropriate drug and alcohol tolerance, with the presence of excessive alcohol and co‒drydamol in his system, who had been ambulant one hour before his death, was unlikely to have died solely from the effects of drugs and alcohol.  If the alcohol and drugs had rendered him unconscious, he would not have got up an hour or so before his death and passed urine.  He was also of the view that a fall had not caused the death.  The frenulum injury was not typical of a fall.  It was consistent with forced pressure and movement over that area.  In order to cause death there usually had to be a significant head or neck injury.  In this case, the bruises to the scalp were small.  There was no evidence in the scalp, skull or brain to say that there had been a significant head injury sufficient to cause death.  A fall forward could not explain the bruising to the scalp or the lack of injuries to the nose, although it was possible that the deceased had fallen against an object.  The mouth could have struck the stair but, in that case, Dr Jerreat would have expected more bloodstains at the site of impact.

[56]      Dr Jerreat commented that fresh haemorrhage (blood) on a pillow was consistent with smothering using that pillow.  Having seen the relevant photographs, he referred to the blood on the pillow on the bed as “fresh”.  He said that the blood on the pink pillow was clearly darker and older.  Blood became altered and brownish, or even black, over time.  There had been some grazing to the deceased’s back which was consistent with dragging or a fall.  Dr Al‒Sarraj’s neuropathology had not persuaded Dr Jerreat to change his opinion.  The scenario of an injury 2 to 3 hours before death was not consistent with the toxicology or quantity of urine found.

[57]      Prior to the trial, Dr Jerreat had not been asked to give a cause of death.  He had been asked to comment on the findings and whether they were consistent with smothering.  He thought that the injuries to the mouth and the blood on the pillow were so consistent.  He did not think that the injury to the nose was likely to have been caused by a fingernail, but that that abrasion, and that to the chin, could have been caused by the movement of the hand across the face.  The scalp bruises could have been caused by some sort of blow with a hand, but were not likely to have been caused by a fall downstairs.  If there had been a substantial blow to the mouth, he would have expected significant associated bruising.  The same applied to the chin abrasion, if it had been caused by a blow.  Dr Jerreat did not think that the cause of injuries to the frenula in children could usefully be read over to adult pathology.

[58]      The deceased had very sharp upper teeth.  He had a complete line of laceration opposite them, yet there had been no associated bruising.  He had not seen a laceration as big as this in a smothering.  He agreed that many of the injuries were non‒specific and possibly caused by a complex fall, falls or blows.  Death as a consequence of alcohol or drug ingestion after a fall did not explain the mouth injury or the blood on the pillow or the lack of blood elsewhere.  Dr Jerreat did not agree that there were no injuries suggestive or indicative of smothering; the mouth injuries in part, or in total, could have been the result of ‒ could be interpreted as supportive of ‒ smothering.

[59]      In a neat summary of his position in cross‒examination, Dr Jerreat accepted that “unascertained” was a viable opinion on cause of death.  In this particular case:

“… there isn’t sufficient head injury to cause death on its own, [there] isn’t sufficient drug and alcohol to cause death on its own, and a combination of two possible cause of death … [T]he pillow blood staining and the mouth, … is compatible with suffocation … but I don’t think without evidence of the pillow and saliva … and all the other evidence that’s presented to me … you could be confident about giving a cause of death.”

 

He would have certified the cause of death as “unascertained”.  The primary reason for this was the absence of an opportunity to examine the pillow.

[60]      Professor Alexander Forrest was the coroner for South Lincolnshire and professor of forensic chemistry at Sheffield University.  Because of the containers, which had been found in the deceased’s house, it was thought that the deceased had taken dihydrocodeine and paracetamol in the form of co-dydramol (DF118) tablets.  Prof Forrest estimated that the deceased had taken (not necessarily at the same time) between 20 and 80 tablets, probably about 37.  This had been at least several hours (between 2 and 12) prior to death.  Since he had 80mls of urine in his bladder when he died, he had emptied his bladder not much more than an hour or so before death.

[61]      If he had been found dead in his bed, Prof Forrest would, in the absence of the alcohol readings and other pathological findings to the contrary, have attributed the death to an overdose in conjunction with alcohol.  However, if this had been the cause, he would have expected the urine/alcohol reading to have been very significantly higher than the blood/alcohol figure.  Once secreted into the bladder, the concentration of alcohol in the urine does not change.  The blood alcohol level continues to fall as it is metabolised.  Thus, if there had been an overdose, and the deceased had consequently been lying unconscious for a prolonged period, the blood/urine figure would have been much higher than the blood/alcohol level.  It was not.  In addition, the deceased had been taking therapeutic levels of co-drydamol and would have acquired a tolerance to its effects.  

 

DEFENCE:
Drs Lawler and Turner
[62]      The appellant elected to lead evidence first from Dr William Lawler, a self‒employed forensic pathologist who had formerly been one of the two full time Home Office pathologists working in Manchester.  He had been instructed for the appellant in 2009 to review the PM reports and the new neuropathological material.  He dealt in detail with each individual injury, expressing the general view that each one was “non‒specific”.  In relation to the injuries to the mouth, he had no doubt that they could all have resulted from a single substantial blunt force impact.  Indeed, this was the only possible explanation.  Compression would not have produced the substantial force required to cause the injury to the lower lip.  The absence of bruising associated with the injuries argued against the use of compression.  It suggested a fall against something, such as the edge of a carpeted stair, or a kick with a shod foot.  The fingers were not sufficiently rough to cause the abrasions.  The tear of the frenulum could have been caused by some form of lateral movement of the upper lip.  Comparison with child abuse cases was not particularly helpful.  The mouth injuries were not those which he associated with smothering.  In the cases of smothering which he had seen, there had been mild bruising to the inner aspects of the lips and cheeks associated with multiple, short, very superficial, vertical and horizontal lacerations from the deceased’s teeth.   He had never seen a deep horizontal laceration of the type seen here in any of the 6 cases of suspected smothering which he had dealt with.  The injuries which were present in this case were not described in the textbooks as indicative of smothering, nor did they accord with his own experience.  Falls onto flat surfaces usually produced injuries to the prominent parts of the face.  However, isolated falls onto the edges of things could produce considerable injuries to the mouth, with little or no damage elsewhere.

[63]      The bruises to the trunk each reflected local blunt force trauma.  All were explicable as a result of a complex fall.  There was no evidence of dragging.  Bodies which had been dragged had vertically oriented abrasions over the prominent parts of the shoulder blades and buttocks.  The injuries to the elbow and scalp were non‒specific and could all have resulted from a complex fall.  The congestion in the lungs was not evidence indicative of smothering. 

[64]      The toxicology was fundamental.  The deceased had been drinking heavily both on the evening before, and on the morning of, the day of his death.  Having taken an excessive quantity of co‒drydomal tablets, he would have been unsteady on his feet and fallen down some, most, or all of the stairs thus sustaining all of the injuries shown, including the axonal damage.  The damage to the brain could have been caused by the impact to the mouth.  It was the concept of shaking and rotation which was important in the creation of what was multi‒focal axonal damage. 

[65]      It was not impossible for the deceased to have been lying unconscious for the 2 or 3 hours minimum required for the development of the axonal changes.  That would have allowed for the continuing absorption of alcohol and dihydrocodeine.  The death could have occurred thereafter solely as a result of the toxic effects of the alcohol and dihydrocodeine. 

[66]      The haemorrhaging in the PM lividity, facial congestion, petechial haemorrhaging and related injuries, gave no indication that the cause of death was smothering.  The bruising to the skull would not have been caused by a hand forcing a face into a pillow because of the toughness of the scalp tissues.  Greater force was required to produce this type of bruising.  In short, it was Dr Lawler’s view that the pathological findings did not support airways obstruction as a cause of death.  On the balance of probabilities, that cause was head injury, and alcohol and dihydrocodeine ingestion.

[67]      Dr Turner had given evidence at the first trial.  She had been a consultant forensic pathologist for some 20 years, seeing an average of 60 to 70 homicides each year in the west of Scotland.  She had only dealt with a very small number of smotherings. 

[68]      Dr Turner challenged the views of Drs Rankin and McPhie on most of the facial and head injuries.  For example, she did not think that the scalp bruising could have been caused by finger pressure, as distinct from blows.  She considered that all of the injuries were explicable by falls or impacts.  The abrasions to the back were not typical of dragging.  The pattern was consistent with impacts from a fall downstairs.  She did not consider that bleeding from the ulcer had been entirely excluded by its examination at the PM.  Although it was possible to proffer a scenario involving suffocation, whereby the facial injuries could be sustained, there were alternative explanations.  There was no diagnostic pathological feature that proved that suffocation had occurred.

[69]      The evidence and the literature did not support the findings as being those which would normally be seen in a suffocation.  Typically, the literature described injuries to the mouth and nose as being very unusual in a suffocation caused by a pillow.  The typical pattern was of very minor injuries to the inside of the mouth; being tiny abrasions or lacerations caused by the tip of the teeth going into the lips.  Bruising or abrasion would not be caused unless the suffocation had been at the more violent end of the spectrum.  However, that was not to say that smothering could be excluded.  No PM examination that Dr Turner had carried out, simply looking at the pathological evidence, could exclude smothering because, typically, it would leave no, or very little, sign of injury.  The use of a pillow, or a hand over a pillow, would leave no injuries.  The damage to the frenulum was typical of a blow or impact.  The occurrence of petechiae was caused by a build‒up of pressure, but not necessarily as a result of asphyxia.  It could occur with violent coughing, sneezing or vomiting.  Fingernails gave typically linear or short linear abrasions; not the type of injury which was seen on the ridge of the nose. 

[70]      The state of the deceased’s liver was a recognised cause of sudden death, typically associated with vomiting, as described in this case.  Death usually occurred when the blood alcohol figure had dropped to a low level, but that did not exclude this as a potential cause of death.  Death from cardiac arrhythmia in people with a history of chronic alcohol abuse was possible.  The drug and alcohol levels could have incapacitated the deceased and contributed to a fall and ultimately his death.  The injuries to his face and back would be consistent with a fall down stairs.  Following upon such a sequence of events, he could have died as a result of intoxication, inhalation, fatty liver or cardiac arrhythmia.  In the whole circumstances, prior to the initial trial, Dr Turner had been of the view that the cause of death ought to be stated as “unascertained”.

[71]      The bruising in the scalp indicated a blunt impact to 4 separate areas of the head with a further heavy impact to the face.  This pattern of injury, causing microscopic traumatic axonal injury, was not particularly unusual.  The pattern of bruising to the head, neck and back was typical of a fall down stairs with a number of impacts to the head.  This could explain axonal damage without bleeding around the brain or skull fractures.  In light of Dr Al‒Sarraj’s opinion (infra), Dr Turner had revised her cause of death to one of “head injury in keeping with a fall and dihydracodeine and alcohol intoxication, with a potential contributing cause of fatty change of the liver”. 

 

Dr Sarah Short
[72]      Dr Short was a forensic scientist who had been asked to examine the deceased’s stomach contents to determine whether they contained blood.  She found blood.  She was not able to say how the blood got there, nor could she say how much blood there was.

[73]      Dr Short noted that the pink pillow on the floor had “much darker”, brown coloured staining in comparison with the brighter red staining on the pillow on the bed.  She concluded that the blood on the pink pillow was older.  She was unable to say how the blood had come to be on the pillow.  She could not exclude smothering, in relation to the white pillow.  She could not express any positive view without having had an opportunity to examine it to see if it revealed the deceased’s saliva or smears of his blood.  Dr Short did not consider that testing could distinguish between blood deposited a couple of days, or even hours, apart.  Nothing could be said about when the stains had been left in relation to each other.

[74]      Dr Short did not consider that a fall downstairs, causing the injuries to the mouth, would necessarily leave significant blood on the stairs.

 

Dr SAFA Al‒Sarraj
[75]      Dr Al‒Sarraj was the neuropathologist at King’s College Hospital, London, whose evidence had prompted the earlier successful appeal.  Using slides from Dr MacKenzie, he had, by employing techniques not available in 2003, detected more axonal damage than had been identified by Dr MacKenzie.  This was multi‒focal, but not diffuse, axonal damage; meaning that the damage involved more than two areas of the brain.  This was consistent with a “moderate” degree of head injury in which the patient was likely to have been unconscious for more than one hour.  It may have contributed to the death, but it was “not necessarily fatal by itself”.

[76]      The brain showed early ischaemia, which was usually related to a reduction in the blood supply as a result of a loss of consciousness or prolonged suffocation.  It could be part of the pathology of head injury and this, he thought, was the most likely explanation in the absence of any other.  The timing of the injury was “not accurate”.  His best estimate was not less than 2 to 4 hours before death, but the upper limit was also “less accurate”.  The pathological signs of suffocation in the brain were not diagnostic.  If it were prolonged, there might be congestion, but its absence would not exclude suffocation, particularly if it were not prolonged.

 

Dr Alan Wylie
[77]      Dr Wylie was a psychiatrist who had looked at the deceased’s medical records.  He had been asked to consider the possibility that the deceased had committed suicide.  He had concluded that the deceased had an “alcohol dependence syndrome”, which statistically increased his risk of suicide as did other factors, including his gender, his status as separated, his unemployment, any financial problems and the relatively recent death of his mother.  He could not say whether the deceased had suffered from depression at the time of his death.

 

Submissions
Appellant
[78]      This was a rare case which satisfied the “very high test” for setting aside the verdict of the jury as unreasonable (Jenkins v HM Advocate 2011 SCCR 575 at para [44]).  The Crown had relied on expert testimony in order to establish a sufficiency of evidence against the appellant.  The trial judge had given very careful directions on the expert evidence, following dicta in Liehne v HM Advocate 2011 SCCR 419 and Hainey v HM Advocate 2014 JC 33.  However, the case had had two unique features: (1) the potentially lethal quantities of dihydrocodeine and alcohol in the deceased’s system; and (2) the brain damage suffered by him, probably within a few hours of death.  Notwithstanding these distinct features, combined with the fact that the body had been found at the foot of the stairs, the Crown pathologists had insisted that the cause of death had been smothering.  They had no proper and sufficient basis for doing so and thus excluding drunken accident (ie a fall), suicide or natural causes related to the deceased’s alcoholism.  Although guided by other experts at the time of their original diagnosis, deficiencies in these experts’ contributions had been identified and other experts had offered different opinions.  Despite this, the Crown pathologists had failed properly to reconsider their diagnosis.

[79]      The trial judge had directed the jury, in effect, that they could only convict the appellant of murder if they accepted the evidence of the Crown pathologists.  The evidence of these witnesses had been significantly flawed in the following respects:  (1) their lack of relevant experience of smothering, particularly in comparison with that of Drs Jerreat, Lawler and Turner; (2) their opinions had been influenced by what they had been told by the police; for example, that the pillow had been removed from the locus by the appellant (see Lord Neuberger’s reference to Karl Popper, Expert Witnesses, annual Bond Solon Expert Witness Conference Lecture, para 20); (3) their confusion inter se as to whether a pillow had been used.  This was a matter of the greatest significance given the terms of the libel; (4) their reliance on Mr MacIntyre.  This was defective, since his report gave only a partial explanation of the possible causes of the facial injuries.  It had not included other forms of trauma, as it should have done; (5) their reliance on Dr MacKenzie.  He had found that there had been brain damage, but had ruled this out as irrelevant because of his opinion on its severity and timing; (6) Dr Rankin’s justification that she had not come across this particular combination of injuries in any previous fall.  She had made a number of concessions, which did not sit easily with her refusal to accept that a fall might have been the cause of death.  Dr McPhie accepted that the facial injuries might have resulted from a fall upstairs; (7) Dr Rankin’s reference to the absence of any blood in the deceased’s stomach.  She had failed to reconsider this in light of the evidence from Dr Short; (8) their failure properly to consider alternative explanations for the death.  Drs Lawler and Turner had spoken to the cause of death being a head injury combined with the effects of drugs.  Dr Jerreat would have given the cause of death as unascertained.  At the conclusion of cross-examination, Dr McPhie conceded that he may have been mistaken as to the cause of death.  Dr Rankin made no such concession, itself a potentially telling position in light of the complicated nature of the case; (9) their preference, in spite of later reports from other neuropathologists, for the views of Dr MacKenzie.  They did not have the qualifications, experience, or any other sufficient basis, for holding this preference.  The two other neuropathologists, Drs Al‒Sarraj and Smith, had disagreed with Dr MacKenzie on severity.  They had considered that the brain damage could have resulted in unconsciousness and played a part in death; (10) their disregarding of the very high level of dihydrocodeine and their failure properly to consider suicide; (11) their failure to maintain the level of objectivity required of expert witnesses.  They had sought to find other material to support their original diagnosis of smothering.  They had found certain texts and articles which they had used in support of their diagnosis, but had done so on the basis of selective reading.  They had not maintained an open mind.  Having taken several months to certify a cause of death, and several more months to issue their joint report, they had thereafter stuck resolutely to their opinion, despite the subsequent problems and inaccuracies in some of the key material underpinning it.  They had sought out research material to support their opinion.  They had found themselves dealing with a case beyond their experience, struggled with a diagnosis, received poor and partial advice from other experts, and then ignored all subsequent developments.  By the time of the trial, they had become advocates in the cause; and (12) their failure properly to reconsider their opinion despite the absence of features found by other pathologists in known cases of smothering and the presence of features not found in such cases.

[80]      The appellate court was at no particular disadvantage in considering the evidence.  There was no “good reason” for the jury to have rejected the evidence of alternative causes of death.  The only way to have done so was to have relied on Drs Rankin and McPhie, who had had no proper justification for excluding the alternatives.

[81]      Following their retiral, the jury had sought clarification on whether the assault libelled was separate from, or part of, the smothering.  This may have indicated a degree of detective work on the jury’s part, rather than adherence to the careful directions.  The judge had taken all possible steps to avoid some of the difficulties mentioned in Liehne and Hainey, but the case highlighted some of the other problems mentioned in those cases.

[82]      The reasonableness of the verdict should be tested on the basis that the trial judge’s directions had all been correct and not on the assumption that proper directions had been given.  That was the basis upon which the Crown had responded to the grounds of appeal and the appellant was not in a position to argue a different case.  The Crown had gone to the jury on the basis that the judge had correctly ruled that the existence of motive was irrelevant to proof of the cause of death.  It was not for the Crown to seek to have the conviction upheld on a different basis (GM v HM Advocate 2012 SCCR 80).

 

Crown
[83]      The appellant had failed to satisfy the high test under section 106(3)(b) of the 1995 Act.  Verdicts of juries, properly directed, are not to be readily set aside by appellate courts (Jenkins v HM Advocate (supra) at para [44]; King v HM Advocate (supra) at 228; McNally v HM Advocate [2012] HCJAC 156 at para [31]).  The issues raised in the grounds of appeal were for the jury to determine.  They were in essence simply a re‒statement of the defence speech.  They set out only one interpretation of the evidence and it was one which the jury demonstrably did not accept.

[84]      The differences of opinion between the medical experts was a matter for the jury to resolve.  In order to be admissible, expert evidence had to have a sufficiently reliable foundation for it to be capable of assisting the jury in the proper determination of the issues of fact (Young v HM Advocate 2014 SCCR 78 at para [55]).  Once admissible, its assessment was a matter for the jury, properly directed in the charge (Hainey v HM Advocate (supra) at para [49]). 

[85]      In focusing on the medical evidence, the grounds of appeal took too narrow a view.  This was a circumstantial case.  Although the issue of the cause of death was primarily a medical question, the jury did not have to consider the medical evidence in isolation, but along with other relevant evidence, including the removal of the pillow in suspicious circumstances and the timing of what happened on the morning of the death. 

[86]      The judge had ruled that motive was irrelevant when considering the cause of death.  The Crown had addressed the jury on the basis that the judge had been correct.  For the purposes of the present appeal, whilst the Crown were content to proceed on that basis (GM v HM Advocate 2012 SCCR 80 at para [25]), they “reserved” their position on whether it had been correct (Webster v HM Advocate [2013] HCJAC 161 at para [40]; R v Kai‒Whitewind [2005] 2 Cr App R 31 at para [89]; Plomp v R [1963] 110 CLR 234; and Cross & Tapper: Evidence at 27, para 4). 

[87]      In relation to the specific grounds of appeal: (1) the allegation of lack of relevant experience repeated a point which had been made in the defence speech.  In any event, Drs Jerreat, Lawler and Turner did not have substantially more experience than Drs Rankin and McPhie in relation to smothering.  No legal objection had been taken to the competence of Drs Rankin and McPhie; (2) Drs Rankin and McPhie had been entitled to take the state of the pillow into consideration.  A forensic pathologist was not obliged to work in a scientific vacuum.  He was entitled to consider whether a known object may have played a part in a death.  Whether Drs Rankin and McPhie had been unduly influenced, by their knowledge that a pillow may have been used, was something for the jury to consider; (3) there was no confusion between the evidence of Drs Rankin and McPhie in relation to the use of a pillow.  Dr McPhie had simply preferred the application of force using a hand rather than a pillow; (4) the pathologists had been entitled to rely upon the views of Mr Macintyre.  Any criticisms of the content of his report were again for the jury to take into account; (5) any reliance placed on Dr MacKenzie’s view was equally for the jury to weigh in the balance, as were: (6) issues including whether a fall had been excluded; and (7) whether Dr Short’s finding of some quantity of blood was relevant; (8) the differences in opinion on the cause of death had been fully and extensively dealt with in both examination and cross‒examination.  The points made were all for the jury to consider in the light of the whole evidence and not just the testimony of the doctors; (9) the neuropathology had been placed before the jury and Drs Rankin and McPhie had given detailed reasons why they did not wish to revise their original opinion, having seen the reports of Drs Al‒Sarraj and Smith; (10) the question of potential suicide had been extensively ventilated in the evidence, the speeches and the charge.  The deceased’s daughter had spoken of a conversation shortly before the death (when the deceased had said that he was coming to tea).  This too was not suggestive of suicide, nor was the evidence of the deceased’s GP, who had seen him about 2 months before his death.  The ingestion of a high number of pills did not carry with it the inevitable conclusion that the deceased had committed suicide.  In any event, even if he had attempted suicide, he had not died from that; (11) the criticisms of the Crown’s pathologists’ objectivity were, once more, matters placed firmly before the jury.  The defence submission to the effect that they had lost objectivity was not the only interpretation available.  Expert witnesses were entitled, and indeed bound, to keep up‒to‒date with developments in literature and to bring these to the attention of the court.  There was no foundation for the assertion that their discovery of texts and articles was based upon a selective reading of the available material.  Dr Rankin had been concerned to come to the correct opinion and had taken her time to do so; and (12) the criticism that the Crown pathologists had failed to reconsider their opinion was misconceived.  They had both considered the subsequent reports, but their opinion had remained the same. 

 

Decision
[88]      The terms of the high test which requires to be met in an appeal based upon an allegation of unreasonable verdict were not in dispute.  They are set out in the introduction (supra).  However, there are certain preliminary matters of law which require to be addressed.  The first is whether the assessment of the reasonableness of a verdict is to be gauged on the basis that the trial judge’s directions were in fact proper ones (ie correct in law), even if they are demonstrated to have been wrong, or upon the assumption that proper directions had been given (ie upon a hypothesis).  The answer to this is to be found in the statutory provision itself.  Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 states that a person may bring under review any alleged miscarriage of justice which may include such a miscarriage based on:

“the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned” (emphasis added).

 

[89]      The task for the court is thus to look at all of the evidence and decide whether, if the jury had been properly directed upon it, no reasonable jury could have convicted.  Thus, any erroneous directions, especially but not exclusively those favouring the defence, fall to be ignored in favour of an assumption that the correct directions had been given.  That approach accords with the view that, in any criminal appeal, other than one based on a breach of Convention rights and thus governed by the UK Supreme Court’s dicta in McInnes v HM Advocate (supra), the court has to apply its collective knowledge and experience (AJE v HM Advocate (supra)) in taking an “overall view of the circumstances” (Brodie v HM Advocate (supra)) on whether a miscarriage of justice can be seen to have occurred.  It could hardly hold that such a miscarriage of justice had occurred when a jury has reached an unreasonable verdict because of a failure to follow an erroneous direction in an appellant’s favour.  Material misdirections favouring the Crown fall into a different category.

[90]      The second point of law, which follows on from the first, is whether the trial judge’s directions were erroneous in certain limited respects.  The first of these relates to his direction that the fact that the appellant had a reason (ie motive) to kill the deceased was irrelevant to the question of whether the deceased had been suffocated.  That question, according to the judge, fell to be resolved “largely” on the evidence of the pathologists and other experts.  Cause of death was “primarily a medical question, although there may be other pieces of circumstantial evidence” that could be looked at.

[91]      Whether evidence is relevant to the proof of a fact depends upon whether it makes that fact more or less probable (CJM v HM Advocate 2013 SCCR 215, LJC (Carloway) at para [28] citing, inter alios, DPP v Kilbourne [1973] AC 729, Lord Simon at 756; see generally Walker & Walker: Evidence (3^rd ed) paras 1.3‒1.5 and Davidson: Evidence para 2.05).  If the question is asked, of whether the existence of a motive to smother a person makes his sudden death more likely to have been caused by smothering by that person, the answer to that is in the affirmative.  There may, of course, be medical evidence which demonstrates otherwise.  If that medical evidence positively shows that an alternative cause of death is established, then the weight to be attached to motive may be all but non‒existent.  If all the medical evidence points to a different cause of death, the case may lack a sufficiency.  Where, however, there is medical evidence which is consistent with smothering as the cause, the existence of a motive on the part of the accused is a relevant factor which a jury is entitled to take into account in determining whether the cause of death was his deliberate killing of the deceased by that method.  It would be equally relevant, but obviously not determinative, that the accused had no known motive to kill the deceased.

[92]      This principle is well illustrated in the Australian case of Plomp v R (1963) 110 CLR 234 (see also Dumoulin v HM Advocate 1974 SLT (n) 42; and Webster v HM Advocate  [2013] HCJAC 161).  It is true that the issue there was not cause of death in a pathological sense, but whether the drowning of the deceased, who was a good swimmer, was deliberate.  The fact that the accused, who was the deceased’s husband, had a reason to be rid of the deceased was deemed relevant to the question of whether she had been murdered by this method and not just to that of whether it had been the accused who had been culpable.  Dixon CJ put it in this way:

“5.       It is objected that [the accused’s] motives cannot be taken into account until it is shown by evidence that in some physical way his actions were responsible for his wife’s death.  There is nothing, it is said, to show that anything he physically did impeded her emerging from the surf or recovering her equilibrium.  Until that is shown, evidence of motive cannot be used, so it is said, to prove guilt.  There is … no legal doctrine to that effect.  All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged.  There may be many cases where it is extremely dangerous to rely heavily on the existence of motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case.  I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done. … In the course of the summing up the learned judge … said to the jury: ‘You must remember that before you can use evidence of motive, there must be a sufficiency in the evidence to establish to you that this death was not an accidental death, to establish to you that he did something in order to get his wife into the water, and having got her there, he wilfully murdered her.’  This appears … to go too far in the accused’s favour.  I think that if the whole of the evidence is read and what the accused said and did both before and after his wife’s drowning is considered with all the circumstances of her drowning a reasonably strong circumstantial case is made against him, but I cannot think that this is so if you omitted from it all the detailed circumstances of his dealings with the other woman.”

 

Just as in that case, so in this.  The trial judge’s directions have gone too far in the appellant’s favour.  In this respect, although the judge’s caution may be understandable, the direction was erroneous and falls to be discounted in the court’s assessment of the reasonableness of the verdict.

[93]      The second area concerns the trial judge’s direction about the blood on the pillow seen on the deceased’s bed in photographs produced at the trial.  The judge directed the jury that they could draw no “inference” about how long the blood had been on the pillow, by the time Dr Von Delft had noticed it, because the only witness who was qualified to estimate the age of blood from its appearance was the forensic scientist, Dr Short.  She had said that it was not possible to determine when bloodstaining had been “deposited”.  It would be difficult, according to Dr Short, to determine the difference between blood deposited last year and blood deposited last week.  The judge directed the jury that “we don’t know when the blood was deposited on the pillow.  There’s no room for speculation on the issue”.  This had prompted the judge in turn to suggest to the jury that Dr Rankin’s opinion might have been erroneous because of her reliance on fresh blood on the pillow as a factor.

[94]      The judge’s directions on the aging of the blood are curious, but seem to have been prompted by a contention raised in the defence speech.  It is no doubt true, as Dr Short said, that, once in the open air, blood reaches a certain consistency or appearance which makes dating its deposit impossible.  It is quite a different matter to say that this means that blood cannot be identified as being “fresh,” in the sense of being clearly deposited relatively recently.  No doubt the members of the jury would be quite capable, from experience in their daily lives, of distinguishing between new and old blood.  A GP, such as Dr Von Delft, with all his/her experience of injuries and blood in general, may certainly competently express a view on whether, from its vibrant colour (“bright red”) or (in different circumstances) its liquid or semi-liquid state, observed blood staining was “fresh”.  Dr Jerreat said that, looking at the photographs, the blood on one pillow was fresh, whilst that on the other was older.   This is reasonably clear from the photograph itself (Pro 146 photo 9) which shows the blood on the pillow on the bed as markedly brighter than that on the pillow on the floor.  Dr Short herself spoke to this.

[95]      The evidence that blood on the pillow was fresh, in the sense of being bright red, at the time when Dr Von Delft saw it, was competently before the jury.  It had been admitted without objection.  In these circumstances, this direction also erroneously favoured the appellant.  The jury were entitled to take into account the fact (if they accepted Dr Delft’s testimony or that of Dr Jerreat) that there was fresh blood on the pillow and from that infer that it had got onto the pillow sometime in the course of no more than a few hours prior to its discovery.  Drs Rankin and Jerreat were equally entitled to have regard respectively to Dr Delft’s written record and the photographs in that regard when expressing their views as to its significance in conjunction with the other facts and circumstances. 

[96]      There is one further comment which requires to be made.  It has been correctly observed that the trial judge went to considerable lengths to give the jury directions about how to approach the expert evidence.  This is understandable, standing the criticisms of trial judges expressed in Liehne v HM Advocate 2011 SCCR 419 and Hainey v HM Advocate 2014 JC 33.  Having explained to the jury that he did not intend to go over the evidence in detail, because that was not his function, the judge said relatively little at all about the evidence given by the lay witnesses.  That may, of course, be explained in part by his ruling on motive.  He then provided a comprehensive summary of the evidence of all the medical experts; referring the jury to many of their comments on the passages quoted from the textbooks and journals which had been placed before them. 

[97]      Where there has been a trial of this duration, and where the parties have been content to explore the issues in such detail with each of the medical witnesses, a trial judge may feel that he/she requires to distil testimony which has been given over many days into some kind of manageable form, with a view to identifying the material issues for the jury’s benefit.  However, it must be emphasised, as it was recently in Younas v HM Advocate 2014 SCCR 628, that even in cases where there is conflicting complex, technical testimony, there is generally no requirement to rehearse or summarise the evidence (ibid, LJC (Carloway) at para [55]).  The obligation is to provide a framework or “route to verdict” which the jury can follow; the existence of which will render any verdict understandable (ibid at para [58]).  At most, all that is needed, in such cases, is a “succinct, balanced review” of the central factual matters for the jury’s determination.  As will be seen, the mere fact that conflicting medical evidence has been given at some length does not mean that the jury have been presented with complex testimony of a technical nature (ibid at paras [61] and [63]).

[98]      There is also a danger, in a case such as this, where the cause of death must be determined not just on the medical evidence but on all the facts and circumstances, that undue focus may be placed on the expert testimony and insufficient attention paid to the other evidence in the case and how the medical evidence dovetails with it.  As Dr MacKenzie put it, albeit in relation specifically to the neuropathology, “the ever increasing amount of complex technical detail contained in the various reports … is tending to obscure the bigger picture …”.  Those words have some resonance to the case as a whole.  There is a distinct risk, in a case of this type, that the medical evidence, some of which may be that the doctors, or some of them, are unable to express a definitive view on the cause of death, swamps the other potentially important evidence bearing on the issue.  Here, the timing of the death, relative to the appellant’s movements, and the disposal of the bloodied pillow, were significant elements for the jury’s consideration.

[99]      In a prosecution of this type, in the context of an adversarial jury system, it is important that not only the judge but also the parties attempt to restrict their expositions of the issues within such bounds as the jury might reasonably be expected to operate.  The jury must be able to grasp the issues and take an informed decision upon them without being overloaded with repetitive technical detail.  Without wishing to be over‒critical, in what was no doubt not an easy case to prosecute or defend, the court does wonder, having studied the approach of parties in detail in the transcription, whether the putting of large tracts of the reports of other doctors before the witnesses and simply asking them to comment upon them, or reading out tracts from textbooks and journals, as if they had an authority akin to precedent, is the best way of achieving that purpose.

[100]    The issues in relation to the medical evidence were not that complex.  The doctors may have expressed differing opinions.  They may have had difficulty in reaching them.  That does not make the resolution of the issues of fact a matter of intricacy requiring high level mental processing.  Ultimately, even in the context of medical evidence, the jury were being asked to consider issues about which they might be expected to have some understanding.  These included how a particular injury might have been sustained; how a laceration or a bruise might have been caused.  They were being asked to consider what injuries might, or might not, have been sustained as a result of a violent compression to the nose and mouth as distinct from a fall down the stairs, or a blow to the face or head.  Medical evidence was, no doubt, necessary to assist the jury in that regard, especially in relation to the internal findings post mortem, but issues such as the causation of wounds are put to juries on an almost daily basis and resolved without any significant perceptible difficulty. 

[101]    Even in relation to the evidence of axonal injury, however difficult the science may be, understanding the differences between the neuropathologists, and the interpretation of the concluded findings of the pathologists, does not require either technical skill or specialist instruction beyond that proffered by the witnesses themselves.  Similar considerations apply to the toxicology, the effect of which was clearly explained by the experts, even if their conclusions on it differed.  The jury would equally be able to understand the lay and psychiatric evidence bearing upon the likelihood of suicide. 

[102]    Turning to the evidence, the court has had the opportunity of reading the entirety of the testimony of Drs Rankin (partly only in electronic form) and McPhie, Mr Macintyre, Dr Jerreat, Prof Forrest and Drs Lawler and Turner.  It has considered the trial judge’s report on their testimony (necessary given that many of the replies of Dr Turner in cross were marked “inaudible” on the transcription) and his detailed rehearsal of the testimony of Drs MacKenzie, Smith, Short, Al‒Sarraj and Wylie.  Having done this, and read also the transcription of both speeches and the charge, it has concluded that it is not at all difficult to understand why the jury were persuaded by the views of Drs Rankin and McPhie, when their testimony is properly seen in conjunction with the other evidence in the case and compared and contrasted with the competing testimony of the defence experts, notably Drs Lawler and Turner, and others.  In short, the court considers that the verdicts were entirely reasonable when the evidence as a whole is examined.  Looking at the issue in general terms, for the verdicts to be regarded as unreasonable, the reasoning on cause of death, essentially encompassed in the post mortem report, must be seen as in some way flawed.  The court is unable to detect a significant flaw in the reasoning of Drs Rankin and McPhie, such as would make any acceptance of their view on cause of death unreasonable, albeit that their view was not a universal one.  Notwithstanding the number of criticisms made, it was not (with some very limited exceptions) suggested that they had been mistaken in relation to their findings of primary fact, albeit that it was said that their inferences from those facts had not been open to them.  There was little valid criticism of their reasoning, beyond the proffering of alternative interpretations of those primary facts.  The criticisms made in the context of the appeal were largely the same as had been presented to the jury.

[103]    Looking at the particular criticisms: (1) although their experiences as forensic pathologists, especially in smothering cases, might be (and was) made the subject of criticism as being relatively light in comparison to that of Drs Turner and Lawler, they were duly qualified as experts entitled to express their opinion on the cause of death based upon all the circumstances known to them.   Had they not been so qualified in relation to any part of their prospective testimony, it would, of course, have been possible to take objection to their evidence, or the offending parts of it, at a Preliminary Hearing (1995 Act, ss 72(6)(b), 79(2)(iv)) or, if unexpected, at the trial diet.  No such objection was, or could have been, taken.  That being so, the issue of which expert’s evidence ought to have been accepted was at large for the jury.  Although the court has read the evidence of the main pathologists, and is able to taste some of the flavour of their respective testimonies, it remains, in common with many appellate courts, at a disadvantage in not hearing and seeing the witnesses give evidence and hence being able to observe their demeanour in so doing.  That apart, it cannot be said to be unreasonable to prefer one witness’s evidence over another simply because the person apparently rejected has the greater experience and qualifications.  Were that to be so, age would almost always triumph over youth, no matter the merits of the cause.

[104]    (2) The carrying out of a forensic post mortem examination is not, or at least not exclusively, an exercise in empirical science.  The pathologists are not presented with a naked corpse and set an examination in detecting what might have caused the death in the absence of any other clues.  Were that to be what is done, PMs would be unmanageable in terms of both time and practical result.  It is entirely proper for the pathologists to be presented with a particular scenario and asked for their opinion on whether the medical findings are consistent with the account given.  Such an approach enables the pathologists to look quickly at what is relevant and avoids any time consuming or detailed probing of the impossible.  That is not to say that the pathologists will not therefore look for other plausible causes.  They are skilled professionals, whom the public entrusts with the obligation of investigating deaths from the medical standpoint.  They are not to be presumed easily led by what they are told might have happened.  In this case, the criticism that they, or some of them, had been told about the pillow and that this had affected their subsequent views, was put before the jury.  However, given the time which Drs Rankin and McPhie took to reach a concluded view, having consulted Mr Macintyre and awaited the results of the toxicology and neuropathology, it cannot be said to be unreasonable for the jury to have rejected this criticism, especially given the pathologists’ detailed exposition of the reasons for their ultimate view.

[105]    (3) There was no confusion between Drs Rankin and McPhie over the use of a pillow.  Dr Rankin had considered that a combination of hand and pillow could have been the mode of smothering, while Dr McPhie preferred the use of hand alone.  He did not exclude the use of a pillow.  The issue is of little moment.  The precise terms of the libel were that the appellant “did force his head into a pillow, smother him and did murder him”.  The jury could not have found the appellant guilty of murder without further specification.  However, despite what may have been a Crown concession on the point and the trial judge’s subsequent direction, they could have deleted the reference to the pillow.  It was not a requirement that the jury be satisfied that a pillow was the instrument of death.  In any event, the jury did not delete the reference to the pillow.  They must have been satisfied that it had been used in the manner libelled, even if it may not have been the exclusive mode of airway obstruction.  That was something which the jury were entitled to hold on the evidence.  Once it were determined that smothering had been the cause of death, it would not have taken a significant further step to hold, in light of the location of the fresh bloodied pillow, that the pillow had played some part in the event.  In response to a question from the jury, the judge directed them, as noted above, that what was libelled was a “continuous act”; meaning that it was the pillow alone which was libelled as used to smother the deceased.  That was what the jury determined.

[106]    (4) Drs Rankin and McPhie had asked for the assistance of Mr Macintyre prior to certifying the cause of death.  Dr Rankin had spoken to him, no doubt in the context of her consideration that death might have been caused by smothering.  Mr Macintyre had confirmed his “suggested mechanism” (and it was only that) of gagging, gripping or violent rubbing of the face.  There was nothing wrong with Drs Rankin and McPhie taking account of this in forming their own opinion.  The fact that Mr Macintyre did not include all other conceivable causes is of peripheral significance, unless it could be said that he was suggesting gripping etc. as the only possible cause.  In any event, this is a point which was put before the jury.  It would not have been unreasonable for the jury to have regarded it as of low value, given Mr Macintyre’s continued favouring of his original suggested cause.

[107]    (5) Similar considerations apply in relation to the reliance placed on Dr MacKenzie.  No doubt, Drs Rankin and McPhie, as pathologists in Inverness, would have had cause to rely on the specialist neuropathologist in Aberdeen on many occasions.  There is no criticism of the work carried out by Dr MacKenzie at the time.  The contention is that it was unreasonable for Drs Rankin and McPhie to continue to rely on him after Dr Al‒Sarraj’s updated findings.  They were, however, fully entitled to do so in light of the work Dr MacKenzie had himself re‒done prior to reaching the same conclusion as he had reached in the first place; that any brain injury would have been mild or very mild and was unrelated to the death.

[108]    In any event, it is not easy to fault the simple logic of Drs Rankin, McPhie and MacKenzie on the issue of brain damage.  It was microscopic.  The deceased had no significant visible injury to his scalp.  Virtually all that was present, and that only upon internal examination, were the four symmetrical bruises to the back of the head.  There was no internal bleeding or bruising of the brain.  Despite the conflicting view of Dr Al‒Sarraj, that the axonal damage would have provoked unconsciousness and may even have contributed to the death, the jury could reasonably reject that theory (and that is all it was) and accept the evidence that there were no visible signs of any significant injury to either head or brain.  They were also entitled, for similar reasons, to reject Dr Lawler’s explanation, which may have seemed somewhat implausible, that the mouth injury had caused the axons of the brain to be damaged.

[109]    (6) For similar reasons, the jury must be seen as acting reasonably in concluding that the injuries to the mouth were not caused in a fall down (or up) stairs.  Once more, there is a relatively simple logic in the idea that a fall could not have created the injuries to mouth and ridge of the nose, yet left the rest of the nose and face virtually unscathed.  No doubt an alternative explanation may theoretically exist and Drs Lawler and Turner both expressed views that the injuries could have happened in a fall.  However, this may have left the jury, if not baffled, at least in a position to reject their contentions as implausible, especially as it did not explain the absence of significant blood loss from the lip either on or, more significantly, at the bottom of the stairway.  Dr Short did say that there might not be any such blood immediately, but the jury would have been bound to ask why there was so little, if the deceased had fallen down (or up) the stairs and landed on the floor.  Dr McPhie’s reasonable acceptance of the possibility of an alternative does not detract from what would have been far more likely, even on the medical and scientific evidence alone.

[110]    (7) Drs Rankin and McPhie found no blood in the stomach.  Dr Rankin specifically said that there was neither fresh blood, which she too said has a bright red appearance, or altered blood.  Dr McPhie said that the matter had been microscopically determined.  However, Dr Rankin would have been surprised if Dr Short had not found some blood in the stomach.  Dr Short could offer no view on the quantity of blood which she had found.  In that state of affairs the jury would reasonably have concluded at least that there was no substantial quantity in the stomach which could be attributable either to the ulcer or the mouth injury.  Dr Short’s report was put to Dr Rankin in cross‒examination and she explained adequately why the finding of an unquantified amount of blood in the stomach would not have caused her to alter her view.

[111]    (8) There is no substantial merit in the contention that Drs Rankin and McPhie failed to consider alternative explanations.  They were engaged, within some 48 hours of the body being discovered, to carry out a PM in order to see whether a cause of death could be medically established.  They were not instructed in the context of a criminal prosecution already underway.  They took time to consult with Dr MacKenzie and Mr Macintyre and obtained the toxicology results.  The PM report is very detailed in relation to the physical findings albeit, in accordance with the then current practice, there is only a short non‒discursive conclusion.  They had been provided with certain information in advance of the PM and had sight of the photographs showing the pillow with the bloodstains.  Presumably, they would have been made aware that the body had been found at the bottom of the flight of stairs.  They were aware of the high quantity of dihydrocodeine and the significant amount of alcohol in the deceased’s system.  Their work, as they explained it, was precisely to consider, and if possible eliminate, alternative explanations before forming a view.

[112]    Drs Lawler and Turner were engaged by the defence in the context of the prosecution.  Dr Jerreat was instructed by the Crown in the same circumstances.  Dr Lawler concluded “on a balance of probability” that the cause of death was head injury with alcohol and dihydrocodeine ingestion.  Dr Turner’s revised view was similar, but specifically did not exclude smothering.  Their views are, no doubt, respectable ones, but nevertheless ones which the jury had reasonable grounds to reject.  For example, if, as outlined above, the jury considered that Dr MacKenzie’s view was to be preferred to Dr Al‒Sarraj’s on the severity of the brain injury, the opinions of Drs Lawler and Turner would not be sustainable.  It would be entirely reasonable for the jury to conclude, following Drs MacKenzie, Rankin and McPhie, that the absence of any visible injury to the scalp made the prospect of a significant brain injury so implausible as an explanation for the death of the deceased that, in light of all the circumstantial evidence, not least the pillow, it could be eliminated beyond reasonable doubt.

[113]    Returning to a theme already explored, the fact that a cause of death is given as “unascertained” upon medical examination, does not create a prohibition on the jury determining a cause as fact.  Were it to be otherwise, the normal smothering, which is said to leave little or no trace of its perpetration, would be bound to go not only undetected but also unpunished.  Equally, a sensible concession by a pathologist that he could be wrong, does not prevent a jury from founding on an opinion, which he nevertheless thinks is correct and objectively justifiable.

[114]    (9) The legitimacy of the preference of Drs Rankin and McPhie has already been dealt with.

[115]    (10) In relation to alcohol and dihydrocodeine, both were excluded by Dr Rankin as a direct cause of death, partly because they could not explain the facial injuries.  In the case of deaths of alcoholics, Drs Rankin and McPhie explained that they died of their alcoholism when there was a low or zero amount of alcohol in the bloodstream, not when a level, such as that found in the deceased’s system, was present.  The amount of urine in the deceased’s bladder pointed to him having been up and about within a short period of his death.  The lack of a substantial discrepancy between the blood/alcohol and urine/alcohol levels suggested convincingly that the deceased had not lain unconscious for any prolonged period of time.  The lack of significant bloodstaining in the vicinity of the body supported that view.  It would seem extremely improbable, in these circumstances, that a person suffering from the, soon to be fatal, effects of alcohol and dihydrocodeine would have been “ambulant” an hour or so before death, fallen down (or up) the stairs, suffer significant unusual mouth injuries and die rapidly from injuries not involving any immediately apparent damage to the head or neck and leave little bloodstaining.  As the defence valiantly maintained, and as supported by the appellant’s pathologists, it is possible, but the jury were reasonably entitled to reject this, or a similar, scenario, as so highly unlikely as to be discounted in their ultimate determination.  The same applies to the rather weak attempt to postulate suicide as an alternative where the deceased had no significant background of depression and had been planning to visit his daughter for tea on the day his body was found.

[116]    (11) There was considerable criticism of the way in which Drs Rankin and McPhie had set about their task and in their conduct after reaching their view on the cause of death.  No doubt what were undoubtedly attacks on their professional integrity were properly made in the circumstances.  However, once more, the jury would have been fully entitled to regard them as unfounded.  It cannot be regarded as surprising that Drs Rankin and McPhie took steps to see that they were properly prepared for what must have been a somewhat gruelling time in the witness box.  Following upon their having testified at the original trial in 2005, they might legitimately have anticipated that their part in the case was over once the verdict had been returned.  However, they were required to give evidence again in the context of the “fresh evidence” appeal, at the end of which their testimony was not evaluated at all by the court but the matter remitted for a second trial by jury.  At that, they were faced with the formidable prospect of having two full time forensic pathologists attacking their opinion in fairly forceful terms.  It cannot be a legitimate criticism that, in advance of the third occasion upon which they were obliged to give evidence, they revisited the literature to ensure proper preparedness.  This is not advocating a cause.  It is carrying out a professional obligation in what can be a stressful situation, knowing that the opinion which they have expressed and which may have a very important part to play in a criminal trial, may be correct but nevertheless be subjected to intense and prolonged scrutiny.

[117]    (12) Drs Rankin and McPhie considered that the injuries to the mouth were consistent with the literature on smothering.  They were supported by Mr Macintyre at the time and, to a large extent, by Dr Jerreat in due course.  Although, based on the pathology, Dr Jerreat conceded that he would have recorded the cause of death as unascertained, he was nevertheless content to describe the injuries as consistent (in a medical rather than a legal sense) with smothering as a cause.  This was especially the case with the injury to the frenulum, which had originally so convinced Mr Macintyre.  The fact that it was accepted that many smotherings leave no injury and that it is only where there is some resistance that cuts and abrasions may be found, and then often in the inside of the mouth through the effect of sustained but temporary pressure, may add little to the equation beyond a conclusion that precisely what injuries were sustained will depend on the particular circumstances, which, if a smothering did occur, will almost inevitably remain unknown.

[118]    The court returns to the high test required when it is sought to overturn the verdict of a jury as unreasonable.  That test is not met in this case.  There was ample justification for the jury to hold that the deceased did not die from natural causes from a fall downstairs, having taken excessive quantities of dihydrocodeine or alcohol.  He did not commit suicide.  Whatever the precise pros and cons, there was evidence that his injuries were consistent with him having been smothered by the pillow, which was seen and photographed on his bed after his death.  Having regard to all the suspicious circumstances surrounding the death, the jury’s verdict must be seen as an entirely reasonable one.  The appeal is refused.