George Donald Smith v. Her Majesty’s Advocate [2016] HCJAC 67

Note of appeal against conviction:- On 27 October 2015, at Glasgow High Court, the appellant was convicted after trial of a charge of murder. On 6 January 2016 the appellant was sentenced to life imprisonment with a punishment part of 14 years. The main issue at trial was whether the deceased had died as a result of asphyxia due to pressure or blows to the neck or from other causes like hypothermia or from the deceased succumbing to the effects of a combination of drink and drugs. There were three grounds of appeal:- (1) that the trial judge erred in repelling a submission that there was insufficient evidence of asphyxia as the cause of death; (2) that the judge failed to adequately direct the jury that it was essential for a conviction that the cause of death was proved to be asphyxiation by the appellant; and (3) that the verdict of guilty was one which no reasonable jury could have returned in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. During the course of the trial evidence was led from the appellant’s downstairs neighbor who spoke to hearing the appellant and the deceased fighting and to the appellant stating to the neighbour later that :-“I think he’s deid, I think I’ve killed him”. In relation to the medical evidence, Dr Turner, the consultant forensic pathologist, who had conducted the post mortem, was not definitive as to the cause of death and that there were a number of potential causes. In light, however, of certain of the findings including the petechial, a ligature mark, bruising to the tongue and a fracture to the larynx, these could be consistent with asphyxia. Dr Turner considered that there were three potential causes but she could not say which one had killed the deceased, these being the head injuries, the injuries to the neck and the cocaine and alcohol intoxication. Professor Smith, a consultant neuropathologist, gave evidence that any restriction of the flow of blood or oxygen to the brain was likely to leave signs on the brain and there had been none. It was submitted here on behalf of the appellant that there had been insufficient evidence to prove that the appellant had caused the death of the deceased by asphyxiation and the jury were not entitled to form their own opinion in relation to what caused the deceased’s death. There was a material difference in the conclusions of the Crown pathological evidence led at the trial and for the jury to hold that the death had been caused by asphyxia would have been contrary to the evidence led. It was further submitted that the jury ought to have received directions that if they rejected the neuropathological findings of Professor Smith they had to find sufficient evidence of asphyxia elsewhere and that it was not for the jury indulge in their own interpretation of the medical or scientific evidence. It was submitted that where an innocent explanation for the death had been introduced, it was for the Crown to meet that explanation and it was necessary for the judge to give directions on it. In relation to the contention that the verdict of guilty was one which no reasonable jury could have returned if the jury had been given adequate directions they would have come to the view that the murder had not been proven. It was further submitted that expert witnesses should only give evidence within the limits of their expertise and a jury should not be allowed to form a contrary view in the absence of any evidential basis for doing so. On behalf of the Crown it was submitted that there was a compelling body of evidence against the appellant including an admission beyond which little more was required. Whilst there were a number of possible causes of death there was still evidence from which the jury could conclude that the cause of death had been asphyxia and there had been no evidence of death resulting from natural causes. It was further submitted that there was no requirement for the Crown to exclude every potential cause of death and the issue was whether the case had been proved beyond reasonable doubt. It was a matter for the jury to determine whether there was a causal link and the medical evidence was only a single element of that task. It was contended on behalf of the Crown that it had been a compelling circumstantial case and the verdict had not been unreasonable. Here the court refused the appeal. The court stated that, as in Geddes v. H.M.A. 2015 J.C. 229, where medical science is unable to provide a definitive cause of death, the jury are entitled to take into account lay evidence to decide whether the Crown had proved beyond reasonable doubt that the death of the deceased had been caused by the appellant in the manner libelled. The court considered that the trial judge had adequately directed the jury that the questions they had to answer were whether the assault libelled had caused the death, either by asphyxiation or otherwise, and whether that assault was murderous. Here the court was of the view that there was sufficient evidence from which the jury could conclude that asphyxia was a significant causal factor in the death, notwithstanding the absence of a definitive pathological opinion to that effect. The court stated that the jury was entitled, on the evidence, to reject other possible causes of death like hypothermia (the deceased was young, wearing clothes and situated in a close) or a combination of drink/drugs (the levels of both were not particularly high). The court was of the view that the directions given by the trial judge in relation to how they should approach the expert evidence and the critical area of causation could not be faulted. In relation to the contention that the verdict was one which no reasonable jury could have returned the court reiterated that the test is an objective one and a high one and it is only in the most exceptional of circumstances that an appeal on this ground will succeed. The court stated that there was a body of evidence pointing to the appellant causing the death of the deceased by asphyxiation and the jury were entitled to do so on the evidence.