Note Of Appeal Against Conviction By George Donald Smith Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Justice General,Lady Paton |
| Neutral Citation | [2016] HCJAC 67 |
| Court | High Court of Justiciary |
| Date | 19 August 2016 |
| Published date | 19 August 2016 |
| Docket Number | HCA/2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 67
HCA/2016/19/XC
Lord Justice General
Lady Paton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
GEORGE DONALD SMITH
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: J Carroll, Solicitor Advocate, McLaughlin; John Pryde & Co
Respondent: A Prentice QC (sol adv); the Crown Agent
19 August 2016
Introduction
[1] On 27 October 2015, at the High Court in Glasgow, the appellant was convicted of a charge which libelled that:
“on 7 December 2014 at Flat 1/2, 101 Stravanan Road, Castlemilk, Glasgow, and the common close there you ... did assault Steven Larkin ... and did punch, kick and stamp on his head and body, otherwise inflict blunt force injuries on his head and body, the exact means by which you did so being to the Prosecutor unknown, drag him from said flat onto the landing, compress his neck with a scarf or by other means and you did murder him.”
On 6 January 2016, he was sentenced to imprisonment for life, with a punishment part of 14 years.
[2] The central issue at trial was whether the deceased had been killed by asphyxia as a result of pressure or blows to the neck, as distinct from, for example, hypothermia, or succumbing to the effects of a combination of excessive quantities of alcohol and drugs. There are three grounds of appeal, all related to this issue. The first is whether the trial judge erred in repelling a submission that there was insufficient evidence of asphyxia as the cause of death. The second is whether the judge failed adequately to direct the jury that it was essential for a conviction that the cause of death was proved to be asphyxiation by the appellant. The third is whether the verdict of guilty was one which no reasonable jury could have returned. These issues involve a consideration of the lay and medical evidence heard at trial.
Evidence
Lay
[3] The deceased was found in the early hours of Sunday, 7 December 2014 lying on a first floor landing, outside the appellant’s flat. There was blood on his face and in the surrounding area. His scarf was tied very tightly around his neck.
[4] RH, the appellant’s downstairs neighbour, spoke to being at home on the Saturday night (6 December). At about 9.00pm, Mr H had seen the deceased coming into the close with a carrier bag and going upstairs towards the appellant’s flat. He was watching a film when he heard rumbling noises from upstairs. Prior to this he had heard the voices of both the deceased and the appellant. They had been playing records until at about 1.00am. A crashing sound had come from upstairs as if furniture was being upturned and “stuff was being smashed”. He heard the appellant shouting once or twice: “Get out my f...ing house”. He adopted part of a statement, which he had given to the police, that it sounded as if the appellant had been “rolling about with someone, fighting with them, by the way this crashing noise continued”. This was hours after the music had been turned off.
[5] Mr H had been disturbed by DS (who also gave evidence) at about 4.00am. Mr S had gone upstairs. He then re-appeared and asked Mr H to telephone for an ambulance. Mr H had gone upstairs and found the body of the deceased. The appellant walked out of his flat door at this point and said: “Have you got a cigarette on you please, I think I’ve done him in”. He appeared mesmerised, as if he did not know what was happening or where he was. He was, however, talking about the deceased. A statement was put to the witness that what he had said was “I think he’s deid, I think I’ve killed him”. He agreed with this, although his statement had erroneously recorded that the appellant had gone to Mr H’s door, rather than this occurring at the appellant’s flat.
[6] The appellant made no material comment at interview and did not give evidence.
Professional
[7] Dr Marjorie Turner, consultant forensic pathologist at Glasgow University, spoke to her report on the post mortem examination. The cause of death was certified as being “head and neck injuries and cocaine and alcohol intoxication”. The deceased’s medical history had included alcohol detoxification in October 2014 and opioid drug dependency in April 2014. He had been prescribed a variety of drugs. He was a young man who, Dr Turner agreed in cross-examination, might be unsteady on his feet and fall over.
[8] Dr Turner had noticed a number of petechiae in and around the eyes, one cause of which could have been asphyxia, although they might less commonly have been post mortem changes. Where a pathologist saw petechiae, particular attention would be paid to anything that might have caused that, such as compression of the neck, obstructing the airways and depriving the lungs, and hence the blood, of oxygen. There was a ligature mark (pallor) on the deceased’s neck where his scarf had been. Dr Turner had cut the scarf away. It was not possible to tell if the mark had been a significant factor in the death, but the scarf was tied tighter than a person would wear it. It could have caused asphyxial problems.
[9] The deceased had suffered blunt force injuries to his face and scalp with bruising reflecting impacts to and around both eyes and ears, with scattered small abrasions and lacerations. The force used was in the mild to moderate range and caused by blows with hands or feet or an impact with a hard surface, such as a floor. There were two larger lacerations to the left eyebrow and bruising and abrasion to the left cheek and mouth. The deceased had bruising to his abdomen, which was older than the facial injuries. He had relatively recent bruising of his arms, wrists and hands, which could have occurred at the time of the incident or some hours earlier. The bruises to the hands and arms could have been defensive or indicative of being gripped or held. He had a healing laceration of his right lower shin, a bruise on the knee, and a healing lesion to the ankle, again being older wounds. He also had old bruising or abrasions of the left knee and shin.
[10] Internally, the deceased had two small linear fractures on the roof of the left orbit, together with bruising on both sides of the tongue, which could be a feature of asphyxia where the tongue was caught within the teeth. There was a fracture of the larynx on the left, with a small amount of associated bruising, and a probable partial fracture on the right. There was a fine linear fracture, with a small amount of associated bruising, of the thyroid cartilage. The hyoid bone was deformed, but intact. The larynx, thyroid cartilage and hyoid bone are vulnerable to fracture if the neck is compressed. Some sort of pressure or blunt injury had accordingly occurred to the Adam’s apple area.
[11] There were significant quantities of alcohol in the deceased’s blood and urine, as well as products of cocaine, cannabis, buprenorphine and diazepam. The stomach lining had a few erosions (tiny ulcers), which could be non specific or a feature of hypothermia. There were no other findings associated with hypothermia, although it could not be excluded as a “potential factor” in the death.
[12] Dr Turner noted that Professor Smith (infra) had identified small areas of axonal (nerve fibre) damage in the brain which he did not consider to have been contributory to the death. He had not found any ischaemic damage. Evidence of lack of oxygen (ie ischaemic changes) could sometimes be seen in the brain, but only if the deceased had survived for sufficient time to allow the changes to develop. In a suicidal hanging, for example, there would be no signs beyond the ligature mark. Fatal brain damage could be sustained, yet be undetectable. The person had to have survived for at least 35 minutes before the changes, such as those to the axons, would have occurred. If the changes found had played a part in the death, there would have to have been two separate incidents with a severe blow closer to death. There was no positive evidence of that, but it could not be excluded.
[13] In answer to a somewhat leading question, Dr Turner agreed that the fractures, the bruising and the petechiae could be consistent with asphyxia. She had seen such findings in individuals who had died because of compression of the neck or ligature or manual strangulation. The pressure and/or the blows to the deceased’s neck could have caused the death, but not necessarily so. The application of the scarf alone could account for the findings and for the death of an individual who had taken neither cocaine nor alcohol. There was no evidence that the deceased had died from natural causes.
[14] There were four mechanisms of death associated with the pressure or blows to the neck. The first was that the airways could have been blocked, so that no air reached the lungs. The second was that the blood vessels taking blood to the brain could have been blocked. The third was where there had been pressure to the carotid arteries, again causing a blockage in blood flow. An individual would become unconscious within 10 to 15 seconds after the application of constant pressure, but that pressure would require to be sustained for 4 or 5 minutes to cause death. The fourth was when pressure was applied to the carotid body (or sinus). This could cause a nerve reflex leading to heart arrhythmia. It was possible that the deceased had sustained trauma to cause the minor axonal damage, causing concussion or unconsciousness, before any pressure had been applied to the neck. If the deceased had been face down and bleeding, with a ligature around his neck, the compression would have continued and could have caused death.
[15] An element of respiratory depression, from the combination of diazepam and buprenorphine, could not be excluded, but individuals could tolerate such levels as were found. Cocaine could be associated with cardiac arrhythmia. However, such arrhythmia...
To continue reading
Request your trial
-
Appeal Against Conviction Following Upon A Reference From The Scottish Criminal Cases Review Commission By The Representative Of Hte Late Abdelbaset Ali Mohamed Al Megrahi Against Her Majesty's Advocate
...Test 24 [53] There is no dispute about the test which applies to this ground of appeal. It was recently outlined in Smith v HM Advocate 2017 JC 54 (LJG (Carloway) delivering the opinion of the court) as follows: “[37] The test in relation to the unreasonableness of a jury’s verdict, as desc......
-
Begum v HM Advocate
...6–121; [2015] BVC 13 Sim v HM Advocate [2016] HCJAC 48; 2016 JC 174; 2016 SCCR 303; 2016 SCL 612; 2016 GWD 17–308 Smith v HM Advocate [2016] HCJAC 67; 2017 JC 54; 2016 SCL 773; 2016 GWD 26–476 Walker or Smith or Liehne v HM Advocate sub nom Liehne v HM Advocate [2011] HCJAC 51; 2011 SLT 111......
-
Jerome Butler v R
...considered R v Martin Dyos et al [1979] Crim L.R. 66 distinguished Regina v Stanton [2014] EWCA Crim 1695 applied Smith v H.M Advocate [2016] HCJAC 67 considered The Attorney-General v Omar Chisholm MCCrApp. No. 303 of 2014 mentioned Criminal appeal - Extension of time — Prospects of succe......
-
The Lockerbie Aircraft Bombing Case and the Final Appeal
...that is still competent in Scots law: ibid, [9].48. Al Megrahi v HM Advocate (No 3) [2021] HCJAC 3, [30]–[52].49. Smith v HM Advocate 2017 JC 54.50. Al Megrahi v HM Advocate (No 3) [2021] HCJAC 3, [54]–[56].51. Ibid, [57]–[65] (value of written statements); [66]–[68] (trial court’s use of w......