APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Brodie Lord Wheatley	[2011] HCJAC 110 Appeal No: XC360/09 OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST CONVICTION AND SENTENCE by GEORGE WILSON SCOTT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Macara, Q.C., Solicitor Advocate; Nicholson; Beltrami & Co

Respondent: P Ferguson, Q.C., A.D.; Crown Agent

20 October 2011

Background

[1] On 24 April 2009 the appellant was convicted by a majority verdict of a charge in the following terms:

"on 12 September 2007 at the Eastgate Centre, Eastgate, Inverness you did assasult John Morrison, formerly residing at 31 Dalneigh Road, Inverness and did inject him with an excessive quantity of Diamorphine...and you did murder him".

The jury deleted from the libel the words "rob him of a sum of money". He was sentenced to life imprisonment with a punishment part of 13 years.

[2] In his submissions to the Court today Mr Macara for the appellant helpfully summarised the ground of appeal against conviction as being that the trial judge misdirected the jury as to what constituted assault, in particular by directing them that, if they were satisfied that the appellant injected the heroin into the deceased, that was assault. That misdirection was fundamental since it must inevitably have caused the jury, in addressing the issue whether the appropriate conviction was for murder or culpable homicide, to concentrate their attention on matters unfavourable to the appellant's case, which was that, at the very worst, he should be convicted of culpable homicide.

[3] The deceased and the appellant were neighbours and were friendly. They spent the day in each other's company, consuming alcohol much of the time. Eventually they were in the Chieftain public house where they were joined by Carl Howley and Samantha Dickson, who were partners, and both of whom were abusers of heroin and known to the appellant. The appellant maintained that he had been an abuser of heroin but had stopped. While in the Chieftain the appellant and Carl Howley went to the gents' toilet and each of them injected heroin. Thereafter Howley went outside with Dickson and helped her to inject heroin. All four then played pool. The appellant and the deceased continued to drink alcohol while the other two drank soft drinks. Later in the afternoon they went to a bookmakers. The deceased was asked to leave because he was so intoxicated that he fell off a stool.

[4] All four subsequently walked to the Eastgate Shopping Centre. There the appellant, Howley and Dickson went into the disabled toilet and each took heroin by injection. The appellant and Howley each injected himself; Howley then assisted Dickson to inject heroin. CCTV images showed the deceased, apparently intoxicated, leaning against a wall opposite the door to the disabled toilet. Thereafter he staggered across the corridor to the door and was admitted to the toilet. Although he smoked cannabis on a regular basis, he did not abuse heroin. Both Howley and Dickson gave evidence that they were aware that the deceased did not abuse heroin and that that was obvious to them. Within the toilet the appellant prepared an injection of heroin. Howley said that at that time in Inverness the heroin on the streets was stronger than normal; for that reason he and Dickson had reduced the quantities taken in each injection. The injection prepared by the appellant used a large quantity of the powder. Howley described the resultant brew as being coffee-coloured or like "devil's blood". It was much darker than the colour of the mixture that each of the other three had injected. Howley told the appellant not to inject the deceased because he was not an abuser of heroin and the mixture was too strong. The appellant said that he would use only some of the mixture for the deceased and would use the remainder himself. The deceased held out his arm and the appellant injected the entire contents of the syringe into his arm, despite what he had said to Howley.

[5] In the Note of Appeal it is acknowledged that the jury must have rejected the evidence of the appellant denying that he had administered the injection, and accepted the evidence of Howley and Dickson that it was the appellant who had injected the deceased with heroin. It is also acknowledged that the jury must have accepted certain controversial aspects of the evidence of Howley and Dickson in relation to the apparent strength and quantity of the heroin injected into the deceased, and also that the appellant was warned not to inject the deceased with heroin.

[6] It is also stated in the Note of Appeal that there was undisputed evidence that the deceased wished someone to inject him with heroin. Other significant features of the evidence are then set out as follows:

"The disabled toilet within Eastgate Centre, Inverness was occupied by the appellant and Crown witnesses Carl Howley and Samantha Dickson. The jury must have accepted that these individuals were engaged in 'cooking up' the heroin that they had in their possession. There was clear evidence that the deceased knocked on the door of the toilet to demand access. The witness Samantha Dickson testified the deceased had said 'Stick it in me, stick it in me' in relation to the administration to him of the fatal dose of heroin. These factors and others raise the issue of consent in relation to the actions of the deceased".

[7] The further point is made in the Note of Appeal that, in deleting any reference to robbery, the jury must have accepted the evidence of the appellant, or at least rejected the evidence of Howley and Dickson. However it is plain from the report of the trial judge that there were a number of reasons why the jury might have been left in reasonable doubt about the allegation of robbery. In the end that was of no significance to the argument before us. While it might be said that, if the jury had found the appellant guilty of robbery, that would provide support for the view that their finding of guilty of murder reflected a determination that the appellant had intended to kill the deceased, the issue presented to us does not turn on whether the jury considered that the appellant meant to kill the deceased or acted with the necessary degree of wicked recklessness.

Submissions for Appellant re Conviction

[8] The starting point for Mr Macara's submission was that the trial judge went too far and erred by directing the jury that, if they concluded from their assessment from all of the evidence that the appellant administered the injection to the deceased in the disabled toilets at Eastgate Centre, they must reach the conclusion as a matter of law that he was guilty of assault. The trial judge had initially directed the jury properly by explaining the need for evil intent, but had then adopted phraseology which failed to include that requirement and ultimately misdirected the jury by stating that if the appellant administered the injection he was guilty of assault. Mr Macara illustrated his criticisms of the charge by reference to passages of the charge including the following:

"(at page 24.14) ...the legal definition of an assault is that it is any deliberate attack on another with evil intention. Evil intention is essential, so that injuries caused accidentally or carelessly are not assaults...

(25.7) So that's what an assault is and as with many offences the question of intention is important. Now how do you decide what someone intended, obviously as I think the Advocate depute said at one point, you can't look into somebody's mind to see what he or she intended at any particular time so what you have to do is you have to decide what is it has been established on the evidence and from that you have to infer or draw a conclusion as to the intention......

(25.18) Now I'm able to advise you again as a matter of law that assuming that you conclude that the necessary intention is there the allegation of injecting someone is an assault.....".

At that point he gave the direction criticised that administering the injection in this case amounted to assault.

[9] The trial judge then proceeded to explain to the jury that consent was irrelevant to the issue whether the appellant was guilty of assault and noted that Mr Macara had very properly and correctly accepted that in his speech to the jury. The example had been given of two people agreeing to go outside for what is colloquially known in some parts of Scotland as "a square go", a fight. When one of them punched the other, that was an assault, even although there was agreement that that would happen.

[10] Finally, in this chapter of the charge, the trial judge directed the jury that, if they got to the stage of considering whether the crime of murder or culpable homicide had been committed by the appellant, consent might be of some relevance to the question whether the Crown had established the necessary wicked recklessness for murder.

[11] Mr Macara then turned attention to the trial judge's report and contrasted his description on pages 2 and 3 of Howley assisting Dickson to inject heroin and his much more austere description on page 7 of the appellant injecting heroin into the deceased. The latter was, in his submission, simply a particular example of what is now routine behaviour in the world of drug abuse. Those who abused drugs were regularly assisted by other abusers in a variety of ways. Those who assisted others to abuse a drug were regularly prosecuted for culpable and reckless conduct, not assault. All of that highlighted the fact that the quality of the act of assistance and how to classify it was a matter for determination by the jury.

[12] He suggested that, on reflection, the rule that consent to a "square go" did not elide mens rea and provide a defence to a charge of assault, enunciated in Smart v HM Advocate 1975 JC 30, did not automatically apply to a situation such as the present. In the context of a square go there could be no doubt of the intention to cause harm, whereas in circumstances such as the present that was a matter for determination according to the facts. Both the opinion of the court in Smart and the directions of the Lord Justice Clerk (Cooper) in HM Advocate v Rutherford 1947 JC 1 made it clear that consent provided no defence because the act constituting the assault or murder was committed with intent to harm. That principle had no application to the present circumstances. Indeed Mr Macara went as far as to submit that the appropriate way to deal with cases of this nature was to follow the practice approved in MacAngus v HM Advocate 2009 SCCR 238 of libelling culpable homicide by culpable and reckless conduct. There were other circumstances in which consent was a defence to a charge of assault, for example indecent assault or rape. The example was also posited of death resulting from the application of a tattoo in a parlour or shop voluntarily attended by the deceased for that purpose. The act of executing the tattoo, albeit damage to the person was involved, could not be said, of itself, to amount to assault, since there was no intent to harm. The proposition ultimately formulated by Mr Macara was that consent is a defence to a charge of assault based on the deliberate administration of poison or a potentially lethal drug.

Discussion and Decision on Appeal against Conviction

[13] In our opinion the short answer to the appellant's challenge to his conviction is that in the particular circumstances of this case the trial judge's direction that, if the jury were satisfied that the appellant administered the injection of heroin, they must conclude that he was guilty of assault, was a sound direction. While the trial judge did in his report express the view that it is trite to state that the injection of heroin is harmful, that was not of itself his reason for giving the direction which he gave. The facts, which it was agreed must have been accepted by the jury, included: that the assault consisted of sticking a syringe into the arm of the deceased and injecting its contents into his body; that this was done against the background that the deceased had not previously abused heroin in any way; that the appellant was aware of that; that he was aware that the heroin was stronger than normal; and that Howley and Dickson had reduced the quantities taken in each injection for that reason. The only reasonable inference to be drawn from the wilful act of injecting the whole contents of the syringe into the deceased was intent to cause harm. We agree with the views expressed in the report of the trial judge that in these circumstances the actions of the appellant in injecting the deceased could only be described as an assault, and that this case differs from others involving drug addicts providing assistance to one another in the administration of drugs.

[14] That in these circumstances consent is immaterial is clear. In Khaliq v HM Advocate 1984 JC 23, in the context of a charge involving the wilful and reckless administration of a dangerous substance to another causing injury or death, the Lord Justice General (Emslie) at page 32, with the concurrence of the other judges, stated the position as follows:

"Upon the matter of the consent of a victim to conduct causing injury to him, or his death, the law is perfectly clear. Consent on the part of the victim - even instigation by the victim - is of no importance at all. Clear authority is to be found for that proposition in the cases of HM Advocate v Rutherford 1947 JC 1 (Murder); Smart v HM Advocate 1975 JC 30 (Assault); and Finlayson v HM Advocate 1979 JC 33 (Culpable Homicide by injection of a controlled drug causing death)".

The trial judge founded principally upon HM Advocate v Rutherford, a case involving the strangulation of a woman who had repeatedly asked the accused to strangle her to death. There the Lord Justice Clerk directed the jury that, if life is taken in circumstances which would otherwise imply the guilt of murder, the crime does not cease to be murder merely because the victim has consented, or even has urged the commission of the deed. In that context the trial judge explained his reasoning in these words:

"If the appellant injected an unusually strong mixture of heroin into someone who was not an abuser of heroin having been warned not to do so it is inconceivable that the subsequent death of the victim in that situation would be described as anything other than murder".

With that view, we respectfully agree.

[15] It follows from the foregoing that in cases involving injection of prescribed drugs the relevance of consent depends upon the circumstances. In cases where drug abusers give mutual assistance to inject the drugs, it is conceivable that there may be no intention to harm. Indeed that may be fairly common. It is notorious that drug addicts may on occasions suffer more from the lack of a fix than they might from receiving an injection. It will therefore always be a matter of circumstances whether injecting another who wishes to be injected amounts to assault. It is entirely understandable that the Crown have generally elected to proceed by way of charges of culpable and reckless conduct. In the hazy and shady world of drug abuse, securing reliable evidence to establish the mens rea for assault may often prove difficult. On the other hand the risks associated with abuse of Class A prescribed drugs are so notorious that assisting another to abuse the drug may readily be seen as culpable and reckless conduct.

Miscarriage of Justice

[16] While that is sufficient to dispose of the appeal against conviction, we should say something on the matter of miscarriage of justice on which we were also addressed. Bearing in mind the circumstances of the offence and that, even if the appellant were to be acquitted of assault, the question whether the appellant's conduct amounted to murder or culpable homicide fell to be addressed, we invited Mr Macara to articulate how the direction to convict of assault could have resulted in a miscarriage of justice. The question whether the Crown had proved murder, or the conviction ought to be culpable homicide, still remained. The trial judge's directions on the distinction between the two were very clear and were not challenged.

[17] It was Mr Macara's contention that the jury would have approached the issue of murder/culpable homicide from a different perspective. The various factors which led the trial judge to conclude that the appellant's conduct was inevitably an assault, were bound to have taken on greater significance in the subsequent consideration of whether murder had been established. The emphasis in the minds of the jurors would have been on the nature of the injection, the appellant's knowledge of the circumstances of the deceased and his vulnerability, and issues such as the consent of the deceased, his cooperation in receiving the injection would have been relegated in the scheme of things and given less consideration and accorded less weight.

[18] We are unable to accept that submission. Mr Macara recognised that, if the trial judge had given the directions he considered appropriate in relation to assault and the jury had acquitted the appellant of assault, the jury would still have had to address the question whether murder had been proved or the conviction should be for culpable homicide. As was fully explained in the recent Full Bench case of Petto v HM Advocate [2011] HCJAC 80, a wilful act such as injecting another with heroin can amount to murder as long as it is shown to be committed with intent to kill or with such a degree of wicked recklessness as to amount to reckless indifference to the consequences. The facts to be addressed by the jury would have been the same. When pressed on the matter Mr Macara was unable to indicate any basis for asserting that the jury would have weighed matters from a different perspective. We can think of no basis for thinking that they would. We have accordingly concluded that, even if the jury were misdirected in relation to assault, that misdirection had no material impact on the jury's consideration of the question whether murder had been proved.

Postscript on Consent

[19] In his submissions to us, the Advocate depute suggested that the trial judge's directions to the jury that, even though consent was in this case irrelevant on the question of assault, they could take account of the deceased's consent in the context of determining whether the crime was murder or culpable homicide, was unduly favourable. As it turned out, the matter was immaterial. It remains an issue for determination on another day. We simply observe that there may be a distinction to be drawn between cases such as HM Advocate v Rutherford where it can be said that the quality of the conduct is such that consent could not be seen to have any impact on whether the mens rea test for murder was met, and other cases such as the present where, in the objective assessment of whether wicked recklessness was demonstrated by the behaviour of the accused, the likely impact of consent upon that conduct may have a role to play.

Sentence

[20] In presenting the appeal against the punishment part of 13 years, Mr Macara emphasised the unusual nature of the offence and the contribution made by the deceased to the outcome by his conduct in getting into an intoxicated state and then inviting injection.

[21] It is plain from the report of the trial judge that he took these facts into account along with the whole surrounding events, the appellant's personal circumstances and his criminal record. The appellant has been convicted on 49 occasions. All but one of these convictions were summary ones. A few involved assaults of a fairly minor nature. Having had regard to all relevant factors, and in particular the circumstances in which the offence was committed, the trial judge was entitled, in our opinion, to fix the punishment part which he did.

[22] For these various reasons we refused the appeal in respect of both conviction and sentence.