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Court of Appeal in Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Donnell, R v [2001] NICA 54 (14 December 2001) URL: http://www.bailii.org/nie/cases/NICA/2001/54.html Cite as: [2001] NICA 54 |
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HIGGINS J
This is an application for leave to appeal against conviction, leave having been refused by the single judge. On 12 June 2000 at Antrim Crown Court sitting in Ballymena the applicant, Leslie Donnell, was convicted of the murder of Virginia Pauline Adamson after a trial before Mr Justice Girvan and a jury. He was sentenced to life imprisonment. At the conclusion of the hearing of the application for leave to appeal the court announced that the application was dismissed. We reserved our reasons for dismissing the application, which we now give.
Virginia Pauline Adamson (the deceased) was 41 years of age and for 2½ years approximately had been the applicant's partner. They lived at 6 Orkney Street, Antrim. Both she and the applicant were heavy drinkers. On 31 December 1998 they were drinking with friends from late afternoon to just before midnight. Then they walked home. The following morning they got up around 0930. They left the house and joined another drinking party until mid-day. One of the drinking party described an argument involving the accused during which he and another man ended up on the floor fighting. When the accused left this drinking party he "yanked" the deceased out the settee. He was described as being "very aggressive" and the deceased as frightened, upset and crying. They then walked home.
At approximately 2.00 pm the applicant called at his neighbours house and told them there was "something wrong" with the deceased and asked him to come next door. The neighbour went to the house with the applicant and there saw the deceased lying on her back on the kitchen floor. She was naked from the waist up. There was no sign of a struggle in the kitchen. The applicant, who had drink taken, was agitated and was repeating over and over again "she's dead, she's dead" and "a happy fucking New Year". The neighbour's wife was called to the house. She gave evidence about hearing the accused between 12.30 pm and 1.00 pm saying "Get ye up" or Get ye in". Other neighbours described hearing shouting and swearing which lasted about 10 minutes. An ambulance was called at 2.44 pm and the police at 3.27 pm. The ambulance attendant described seeing the deceased's body with her shirt pulled down off her shoulders with the sleeves unbuttoned and her bra, which she was not wearing, torn in the middle. The applicant told the ambulance attendant that he left the deceased in the kitchen and went to sleep. When he came back he lifted her a few times but she just flopped back and he went next door for assistance. The applicant was described as drunk, slurring his speech, but appeared calm. When the police arrived they found him drinking and he was abusive to them. He told the police that he and the deceased had been drinking. They returned home about 2.00 pm and he had fallen asleep on the settee. He woke up and found the deceased lying on the kitchen floor. He lifted her up, shook her and tried to waken her but was unsuccessful. Later he was spoken to by an Inspector and he told him that he had fallen asleep on the kitchen floor with the deceased. When he woke up he tried to waken her but could not and then went to get help. A scenes of crime officer, a forensic scientist and the Deputy State Pathologist Dr Bentley were called to the scene. The applicant went voluntarily to the police where he was examined by a doctor. He was found to be unfit for interview at that time due to the amount of alcohol he had consumed, but was interviewed later.
In the first interview he denied that there was any argument or fighting at the drinking party. When he got home he fell asleep and when he woke up the deceased was lying beside him on the kitchen floor and would not wake up. He lifted up and let her fall back twice and then ran next door for help. He was asked if he remembered everything from the morning time right through the day and replied "Oh aye, near enough".
In the second interview he described arriving home and going into his shed for three bottles of cider. He brought the cider into the kitchen where the deceased had glasses ready. She then took her top off and they were going to have sexual intercourse. He lay down on the kitchen floor and she got down beside him and that was it. He fell asleep and when he woke up she could not be wakened. He strongly denied there was any row between them and definitely no raised voices. He said the deceased may have sustained fractured ribs when she fell the previous Thursday or when she may have fallen on Sunday when it was snowing.
In the third interview he said they were in the best of form when they arrived home and that there was "no row, no fighting and no hitting". He denied stamping on or kicking the deceased and stated – "I did not do it. I don't know how this happened."
In the fourth interview he was asked about the neighbours hearing shouting from the house and he denied there was any shouting. He said he was not present at the time the neighbours were suggesting.
Analysis of a blood sample taken from the deceased revealed 339 mgs of alcohol per 100 ml of blood at the time of death. This was four times the legal limit for driving a motor vehicle. In most people it would induce a stupor, though hardened drinkers may be less affected.
The post mortem examination carried out by Dr Bentley revealed that the cause of death was blunt force injuries of the abdomen and chest.
At the hearing of the appeal Mr A Donaldson QC who with Mr R Greene appeared on behalf of the applicant sought and was granted leave to substitute fresh grounds of appeal.
These were:
"1. The conviction is unsafe in that the totality of the evidence did not support a verdict of guilty to murder:
(i) There was no direct evidence of how the fatal injuries were caused. The Crown case relied exclusively on a theory provided by Dr Bentley.
(ii) The Crown theory was not supported by the defence expert who gave evidence that there was a reasonable possibility that the fatal injuries could have been caused by the Applicant falling heavily onto the deceased. The Crown's own expert agreed that this was possible.
2. The learned trial judge erred in his directions to the jury on the issue of intent in that:
(i) He failed to direct them that they could only find him guilty of murder if they were satisfied beyond reasonable doubt that death or serious bodily harm was a virtually certain consequence of his action and that he appreciated this.
(ii) He failed to direct them on the importance of motive to the issue of intention.
(iii) He failed to direct them fairly or properly on the importance of intoxication and how this could affect his intention to commit murder or serious bodily harm.
3. The learned trial judge misdirected the jury by asking them to consider things the Applicant did or did not do, or said or did not say when considering the question of his intention. This invited the jury to look for corroboration for the Applicant's intent. The learned trial judge did not identify any such corroboration to the jury."
In addition Mr Greene prepared a very detailed skeleton argument which contained a careful analysis of the case being made on behalf of the applicant.
The case made on behalf of the prosecution was that the deceased and the applicant were alone together in the home when she was assaulted by the applicant and that the fatal injuries from which she died were caused by deliberate acts by the applicant stamping on her chest.
It was submitted on behalf of the applicant that in the absence of an eye witness to what occurred, the case made on behalf of the prosecution was a theoretical one which was not borne out by the evidence of the Assistant State Pathologist who gave evidence on behalf of the prosecution and was undermined by the evidence of the State Pathologist who gave evidence on behalf of the defence. In particular it was submitted that the evidence did not rule out as a possibility the defence theory that the deceased fell and sustained a concussive type injury to the back of her head and that whilst she lay on the floor the applicant fell on her causing the internal injuries from which she died. In the absence of any evidence or account from the applicant as to what happened the jury were presented with two theories as to what occurred. It was submitted that they may have reached the wrong conclusion.
There were no witnesses to the circumstances in which the deceased was injured in the manner found by the Deputy State Pathologist . The applicant, the only other occupant of the house at the time gave no information at the time or later in interview with the police about how the deceased may have sustained injury nor did he give evidence to the jury as to the circumstances in the house on that occasion. It is against that background that it is necessary to consider the findings of the Deputy State Pathologist.
Dr Bentley attended the house at 9.00 pm the same night and examined the scene in the kitchen. He found the deceased lying on her back on a plastic mat. The upper half of the body was unclothed with the right hand and wrist in the sleeve of a checked shirt and through the strap of a white brassiere which had been torn in two. The other half of the brassiere was lying adjacent to a cupboard beneath a sink, approximately six inches from the left hand. The lower half of her body was dressed in blue denim jeans fastened at the waist with the fly undone. She was wearing a pair of white socks on her feet. Lying across the front of the thighs was a black nylon anorak, the waist cord of which was tied around her waist. The kitchen was reasonably tidy with no sign of disturbance.
At the post mortem examination Dr Bentley found a large number of injuries. There were seven injuries to the head and neck one of which was a reddish purple bruise with a grid like pattern on the right parietal occipital region of the scalp. Internal examination revealed bruising of the subcutaneous tissue. There was a faint bruise in the midline of the lumbar region of the back. There were five bruises on her left leg, seven bruises or abrasions to her right leg, six bruises or abrasions to the left arm and two bruises and an abrasion to the right arm. On the lower left side of the front of the chest and the upper left abdomen he found a collection of ten bruises occupying an area 14 x 13 cms within which at the centre was a patterned abrasion and at the upper end of that area a red abrasion. There were two other faint bruises on the front of the trunk. Internal examination revealed extensive bruising of subcutaneous fat and muscle on the lower left side of the chest. Also on the left side of the chest eight ribs were fractured (nos. 3-10). The fractures were in a slightly curved line running down the front of the chest. Three ribs (Nos. 7 to 10) at the back of the left side of the chest were fractured. All the rib fractures were associated with extensive bruising. On the right side of the body there was a deep laceration or tear to the undersurface of the left lobe of the liver which almost split the liver in two. The left renal artery was completely torn and had bled into the abdominal cavity from which 500 mls of blood was recovered. There was also a large amount of bleeding found in the retroperitoneal space. Below the shoulder blade on the left side of the back there was an area of bruising underneath the skin of the dorsi muscle. The mesentery of the small intestine had suffered extensive bruising and there was a bruise of the large intestine. Based on those findings the deputy State Pathologist concluded:
"1. Virginia Adamson died as a result of her injuries. Natural disease played no part in the fatal sequence.
2. On the front of the body on the lower left side of the chest and upper left side of the abdomen there were multiple bruises and an abrasion (graze), indicating repeated blunt force trauma at this site, resulting in multiple severe internal injuries. On the left side of the chest there were fractures of most of the ribs. Within the abdominal cavity there was a large tear of the liver, a tear of the artery supplying blood to the left kidney (renal artery), completely transecting this blood vessel, bruising of the gut and bruising of the fatty leaflet (mesentery) that tethers the gut.
The multiple rib fractures would have impaired the movement of the chest wall, thus severely hindering breathing.
The torn renal artery and tear of the liver had resulted in massive haemorrhage into the abdominal cavity. Bleeding would have been rapid, resulting in death in a matter of minutes.
3. The injuries on the skin of the chest and abdomen show no specific pattern to indicate with certainty how they were inflicted. The severity of the internal injuries, however, indicated that multiple blows were delivered with considerable force, as may be inflicted by kicking or stamping. It is highly unlikely that such severe injuries could have been caused by punches. In addition the pattern of injuries were not consistent with a fall.
On the back of the scalp there was a laceration (cut due to blunt injury), consistent with the head making forceful contact with an unyielding surface such as the ground. Adjacent to this injury there was a bruise whose pattern indicated forceful contact with the plastic mat on which the deceased's body was lying. It is not possible to say whether these injuries were due to a simple fall or a fall as a consequence of an assault. These injuries were of a minor nature and would not have contributed to the fatal sequence.
5. A number of relatively minor injuries were noted on the face. The most prominent was a bruise on the prominence of the left cheek. Its colour indicated that it was not a recent injury and probably a few days old. This injury could have been sustained by a blow such as a punch or as a consequence of a fall. The bruise on the left side of the jaw was recent and its position was more in keeping with it being due to a blow rather than fall.
6. There were multiple recent bruises on the back of the left hand and wrist. Their positions suggested that they may have been defensive injuries, indicating that Virginia Adamson may have tried to ward off blows from an assailant.
7. There were numerous bruises of both legs. The most conspicuous were two recent symmetrical bruises on the inner aspects of both knees. These were not consistent with falls, but indicate pressure in these areas, that may have been due to a forceful attempt to prise the legs apart.
8. Toxicological analysis of a sample of blood taken at autopsy revealed a very high concentration of alcohol that lay at a level over four times greater than the legal limit for driving. This would undoubtedly have produced a marked degree of intoxication. Analysis also revealed the presence of the commonly prescribed tranquilliser drug diazepam at a level that lay within its therapeutic range. This may have added to the intoxicating effect of the alcohol. In view of the severity of the chest and abdominal injuries, however, it cannot be implicated in the fatal sequence."
It is necessary to consider the evidence given about the deceased's injuries in some detail. In addition to presenting his report Dr Bentley commented on various matters in the course of his evidence. He stated that that the injuries to the back of the hand and wrist were non-specific injuries and it was impossible to say with any certainty how they were sustained. The bruises on the inner aspect of the knees were rectangular in nature and symmetrical as though they were mirror images of each other. The injuries to the abdomen that is the tear of the liver; the tear of the artery and the bruising of the fat in the abdomen were undoubtedly due to blunt force trauma to the front of the lower chest and the abdomen. Similarly the rib fractures at the front were due to blunt force trauma to the front of the chest. It was highly likely that both were sustained at the same time but the actual injuries to the organs were not due to the rib fractures as fractured ribs had not pierced the organs. It was the Deputy State Pathologist's opinion that the number and pattern of the bruises was more consistent with a number of blows inflicted upon her but he could not say how many. He did not rule out a blow to the front of the chest which caused the rib fractures of the front of the chest also being the cause of the fractures to the ribs at the back of the chest. Considerable force would have been required to cause the internal injuries which he found. If the body was on its back when the injuries were sustained stamping was the most consistent mechanism for their causation. He thought it was possible that someone coming down forcefully on their knees could produce the injuries found if the knees were brought down under considerable weight. However the multiplicity of the bruises favoured more than one blow but he could not exclude a forceful kneel on the body. He thought it highly unlikely that they were caused by someone falling on the deceased.
The State Pathologist, Professor Crane was retained on behalf of the defence to advise and report on certain aspects of Dr Bentley's report and to consider certain issues addressed to him by the applicant's solicitor. Basing himself on this report Senior Counsel then retained on behalf of the applicant cross-examined the prosecution's pathologist. Dr Bentley agreed with Senior Counsel that there was clear evidence that the deceased had struck her head on the mat on the kitchen floor. He also agreed that a person wearing socks and walking on a linoleum floor could easily slip. If she did fall and strike her head on the mat that could cause a degree of concussion and could render her unconscious and not capable of being roused. Dr Bentley also agreed that the bruises which he found on the front of the chest were all in an area which measured about 5 inches by 5½ inches and that he could not say with certainty how they were caused, though he had given a number of possibilities and reflected on the likelihood of each. He rejected the suggestion that the injuries to the front of the chest could be caused by a person kicking the deceased on the side of the chest with their toe in order to rouse her. He accepted that the use of a foot with a shoe or trainer on it, would be the type of action which would cause the bruises to the front of the chest, but the force was so great as to cause the non-survivable injuries. He agreed that ten points of contact were necessary in order to cause the ten small bruises at the left front of the chest. He said it was impossible to say with certainty that the ten bruises were not caused after the fatal injury. However, they were overlying the very severe injuries which, whatever force was used to cause them would leave bruises on the surface of the skin. In his opinion it was likely that they were caused at the same time. He was pressed to agree that he could not say they were caused at the same time with certainty. He replied that he could say that with as much certainty as one can have because to deliver a blow of such force as to transect the renal artery would leave a mark on the skin. He agreed that it was possible for the damage to the liver and the tearing of the renal artery to have been caused by someone falling on the deceased with heavy force, that is, by the knee or knees being brought down under the full weight of the body and pressing the liver and artery against the spine but that this mechanism would also cause bruising of the skin. He agreed that all of the rib fractures, back and front, could have been caused by a considerable crushing force applied to the front of the chest as well as the bruising of the left dorsi muscle and that the same force could also have caused the damage to the liver and the artery, but that the crushing force would have left bruises. It was then suggested to him that a drunk man who lifted his feet to kick or stamp a person lying on the ground and who was then left standing on one leg might well fall and thereby cause the injuries suffered by the deceased. Dr Bentley said it would be unusual for a person in that situation to suddenly drop to the ground on his knees with full body weight. He thought such a person would stumble and instinctively put out his foot or his hand to protect himself. He stated –
"All I'm saying is we all know what happens when we trip in the street, we don't collapse to the ground on our knees, we lengthen our stride, one's hands go out. Now these instincts even when we are inebriated, do tend to survive." ….
"I would defy anyone to fall from a standing height and deliberately not put their hands out or their leg forward."
He agreed that the rib fractures at the front of the chest followed a line which suggested either one force or several forces in the same area. It was suggested that rib fractures caused by several blows would be at different sites whereas rib fractures caused by one blow would be in a line. He disagreed and likened the mechanism to cardiac resuscitation where the effect of multiple blows in the same area can result in rib fractures which are in a line.
In relation to the bruising to the inside of the knees he could not say with certainty that they were caused by thumbs placed there and pressing out but given their symmetry shape and angulation there was a strong possibility that this was how they were caused.
Professor Crane gave evidence that the laceration on the back of the deceased's scalp and the patterned bruise which reproduced the texture of the plastic mat led him to think that the deceased had fallen backwards and struck her head on the mat and that she remained there. The effect of the fall combined with the alcohol she had consumed and the diazepam could have induced a stupor and she might have been unrousable. In relation to the bruising on the left side of the front of the chest Professor Crane said that some of them were more to the left of the chest and therefore it could not necessarily be said that they were related to the rib fractures or the damage to the liver and renal artery. He said that the fatal injuries to the liver and artery and the rib fractures could have been caused by a person falling heavily and in such a way that his lower leg or knee was applied to the chest whereby all the weight of the person would be applied to the chest. The fractures being in one line tended to support the proposition that it was the application of one episode of force. If multiple blows were directed towards the chest one might expect fractures at different sites. Professor Crane was of the opinion that the defensive mechanism present in a sober man who puts his hands out to save himself when falling is frequently absent in someone who is intoxicated. In any event even if the hands were outstretched this would not prevent the person's knees making contact before the hands made contact with the floor. He would not say that the defence mechanism averred to by Mr Bentley would necessarily occur. In addition he would not necessarily expect to find evidence of surface bruising over a large area if some person fell heavily on the deceased. Furthermore he might, depending on the type of footwear worn, expect to find the imprint of the sole or the tread of the sole on the skin surface if the foot was used in a stamping mechanism. He could not say that there was no downward pressure by a foot but could say there did not appear from the photographs to be any evidence of any pattern of bruising on the skin surface. He accepted that the bruises to the inner area of the knees could have been caused by thumbs pressing the knees apart, but said that they could also be the result of trivial knocks and falls. He did not think the injuries to the back of the left hand and wrist were entirely consistent with the deceased trying to protect herself that is defensive injuries, though he could not rule out that possibility.
Professor Crane was then cross-examined by Mr Kerr QC. He agreed that there was nothing in the deceased medical records to suggest she suffered from osteoporosis or that she had recently suffered any significant rib fractures. He also agreed that the injury to the back of the deceased's head could be explained by her trunk being lifted up and dropped with the back of her head coming into contact with the floor. It was possible that this injury was caused in the course of the movement described by the accused in interview with the police when he said he was unable to rouse her, and had lifted her up and dropped her onto the ground a couple of times, though Professor Crane had not mentioned this in his report. He resiled from the proposition in his report that the state of the deceased's clothing and bra as shown in the photographs could have occurred if an attempt had been made to lift her up by pulling her clothing which had them come away. He accepted that the bruising over the left half of the lower jaw was more consistent with a blow or a gripping of the jaw by a hand, though he had no history of such happening. While he stated that the injuries to the inside of her knees could have been caused by knocks or falls he said it would be uncommon to find such marks symmetrical on the same position on each inner leg and accepted they could have been caused by pressure on the inside of the knees by thumbs. In relation to the injuries to her chart be accepted that stamping was a possible mechanism of those injuries and more likely than kicking, though he might have expected to see a mark on the chest reproducing the imprint of the sole or heel of the footwear. He agreed that the rib fractures which caused her death could not be accounted for by the deceased falling to the ground, though in his report he had suggested there was a strong possibility that she could have fallen heavily on her way home as suggested by the defendant through his solicitor, to him. There was no evidence about such a fall. However he accepted that the deceased would not have moved much after the fatal injuries and that it was not unreasonable to conclude that all the fatal rib injuries were caused by one application of force during the same incident. However he agreed that in his report he had stated:
"A simple fall or falls could not however solely account for all the injuries to the trunk and there seems no doubt that some blows, not necessarily a large number, were directed at the trunk. I do not think that simple punching could cause these injuries and it seems more likely that they were caused by pressure applied with the foot, such as by kicking. It is possible that such kicks may not have been necessarily intended to cause serious harm e.g. they could have been inflicted in an attempt to arouse this woman if she was lying incapacitated on the kitchen floor as a result of the effects of alcohol combined with the concussive affects of the blow to the back of her head when she fell onto the floor."
To that he commented that it was possible that she could have been kicked more than once on the side of the chest while she was lying on the ground. He said that kicking as opposed to stamping could account for some of the bruising on the top of her chest visible in photograph 20. When asked which were more likely to have been caused by kicking he said:
"Clearly the more anterior injuries, the more (sic) injuries that are caused on the front, are more likely to be caused by a foot coming down than the tip of the foot being applied, but the injuries to the side of the chest could be caused by kicking with the toe of the foot."
He excluded the bruising on the front of her chest seen in photograph 20 as being caused by a person falling heavily onto her because the pressure applied in such a fall would be over a larger area. Therefore some other mechanism was required to cause the bruising found on her chest and this was likely to be kicking or stamping though he felt the injuries on top of her chest were unlikely to have been caused by kicks if she was lying on her back at the time they were caused. Someone falling heavily on her might account for the internal injuries but not the external marks on her body. He agreed that stamping could account for all the external and internal injuries. What concerned him was the absence of the impression of the footwear which he might expect to find but he did not rule out the possibility that stamping might occur and there might be no marks left. A lot depended on the footwear being used. He agreed that in the area of bruising to the front of the chest and abdomen there was an area of abrasion which was caused by a rough surface making contact with the surface of the skin.
It was submitted on behalf of the applicant that Dr Bentley's initial opinion was that the multiple bruising to the chest and abdomen was caused by repeated blunt force trauma and that the same trauma resulted in the severe internal injuries which caused her death. Concentrating on the fatal injuries Mr Donaldson QC argued that Dr Bentley could not exclude a forceful kneel or a fall by the applicant onto the deceased as a cause of these fatal injuries. One single application of force could have caused the fractures of the ribs and at the same time the injuries to the liver and renal artery. However it is clear from the evidence that Dr Bentley was of the opinion that there was more than one blow or application of force due to the number of bruises (10) found on the chest and abdomen and those he associated with the fatal internal injuries. This was sufficient to persuade him that the deceased died as a result of assault and not by accident. It was argued that Professor Crane's evidence was that the internal injuries could not be related to the bruises found on the chest and abdomen and that his opinion was that if the applicant fell once on the deceased and his knee came into contact heavily with the rib cage, there would be sufficient force to fracture the ribs and at the same time cause the internal fatal injuries to the liver and renal artery. Thus it was submitted that the prosecution case of multiple blows was undermined. Two other matters were relied on in support of this submission – firstly Professor Crane's view that one might expect to find a mark of a sole or heel on the skin if stamping was the mechanism used and secondly, Professor Crane's view (which differed from that of Dr Bentley) that the usual reflex action of extending one's hand to cushion a fall (and thereby not falling directly onto a person on the ground below) was less likely if the person who was falling was intoxicated, as indeed the applicant was. It was submitted that the nature of the evidence required the learned trial judge to highlight the evidence which tended to establish the applicant's innocence and more particularly those parts of the evidence which were inconsistent with his guilt. It was submitted that it was insufficient for the learned trial judge to invite the jury to accept or reject the competing evidence.
The learned trial judge in his summing up, set out accurately the evidence of the witnesses and in particular the evidence of the two pathologists. He identified correctly the nature of expert evidence and the jury's duty and role in relation to it. Having summarised the evidence of the pathologist he said:
"At the end of the day, members of the jury, in analysing the evidence of the two experts you will have to assess which set out versions you find the more convincing. Tying together the evidence of the injuries, a number of points you may think may emerge, the deceased could not have sustained her injuries at any time earlier than the day of her death, the deceased must have suffered a traumatic degree of force to cause the internal damage to the liver, artery and ribs, and the injuries to the rear could have been caused by the compression from the front. Of the possibilities in relation to the state of the internal and superficial injuries at the front of the body, three real possibilities were considered; firstly, that the defendant innocently came down on his knee on the deceased, and falling in this way could explain the internal injuries but it would not explain the bruising or abrasion on the front of the abdomen. Dr Bentley says that they fit in with the locus of the internal injuries and he though they were all part and parcel of the same event or set of events. Professor Crane suggested that they could – that's the bruising and abrasion – could have been suffered subsequently or before the trauma that caused the internal injury. Which of those two versions do you think is right?
In relation to the possibility of the deceased falling on his knee on the deceased, you will recall there was no case of such a fall made by the accused and you must ask this is because it didn't happen or because if it did happen the defendant forgot about it when talking to the police or was so drunk that he didn't realise it had happened?
You will take into account the area within which these events happened and the confined space between the body of the deceased and the cupboards where the defendant would have been standing; would that have been an area in which this type of stumbling and fall could have occurred? And you will take into account Dr Bentley's evidence –which isn't accepted by Professor Crane – that one would expect a person, even a drunk person, to try and save himself with his hands, rather than falling straight on to their knees.
The second possible explanation is the accused stamped on the deceased. Professor Crane accepted that this was a possible explanation although he said you might expect to see the mark of the shoe, although again he put that in terms as something that you might expect but not necessarily and you may also take into account the question of the presence of the abrasion on the front of the chest.
The third possibility was the defendant kicked the deceased, having regard to the location of the injuries on the front of the body, Professor Crane accepted that this was a less likely explanation. Dr Bentley described as fanciful the suggestion that the injuries were consistent with somebody, even a drunk person, trying to rouse or waken somebody from a state of unconsciousness on the floor, and that's a matter that you may or may not agree with and taken into account."
He then went on to deal with the inferences which might be drawn from the failure of the accused to give evidence.
This was not a case of circumstantial evidence which required the learned trial judge to adopt a particular approach to the evidence. The pathologist who conducted the post mortem concluded that the deceased died as a result of repeated blunt trauma to the lower left side of the chest and upper left side of the abdomen. This trauma caused multiple severe internal injuries as well as multiple bruises and abrasions to the skin. Considerable force was required to cause the internal injuries and if the body was on its back when they were caused stamping was the most consistent mechanism. [There was no direct evidence about the position of the deceased at the time she sustained the fatal injuries.] The jury was invited to consider through the cross-examination of Dr Bentley and the evidence of Professor Crane various other possibilities which might have causes such injuries. The most obvious explanation, against the background of the other evidence was a vicious assault upon the deceased, and the least likely, an accidental fall by the deceased followed by an accidental fall by the applicant upon the deceased. In the context of the evidence adduced it was one or the other and the jury were well placed in the light of the trial judge's careful summing up to decide which it was. There was no obligation on the learned trial judge to put the issues before the jury in a way other than he did. There was ample evidence upon which the jury, properly directed as they were, to conclude as they did by their verdict, that the deceased died as a result of an assault upon her by the applicant.
The second ground related to the judge's direction to the jury on the intention or mens rea required for the crime of murder. Four submissions were made. Firstly, that the judge should have directed the jury that if there was no evidence of a motive to kill then it would be less likely that the applicant intended to kill. Counsel referred to Blackstone's Criminal Practice Part F1-11 which relates to the admissibility of evidence of motive (whether acts or words) to prove malice. It is not every case of unlawful killing which requires a direction on the presence or absence of motive and its relation to intent. In this case the prosecution relied on the nature of the assault and injuries to prove the intention to kill or cause serious bodily harm and the absence of evidence of motive was irrelevant. The learned trial judge did draw the jury's attention to the distinction between motive and intention and that was a sufficient direction in the circumstances.
Secondly it was submitted that in dealing with the intention of the applicant the learned trial judge failed to give a clear direction on the relevance of intoxication to the issue of intent. The trial judge gave the jury a clear direction on the issue of intoxication and intent following R –v- Sheehan and Moore 60 CAR 308 and that they, the jury, were concerned solely with his actual intention and state of mind and nothing further was required.
Thirdly it was suggested in the skeleton argument and in the grounds of appeal that this was a case which would have benefited from a "Woolin direction". That is a direction that the jury should only convict of murder if satisfied that death or serious bodily injury was a virtual certainty and that the applicant appreciated that – See R –v- Woolin 1999 1 AC 821. In the course of his submissions counsel for the applicant accepted that this was not a case which warranted a Woolin type direction.
Finally, it was submitted that the learned trial judge's direction on intention generally was insufficient and that on the facts presented manslaughter would have been the appropriate verdict not murder. The judge's summing up to the jury on the question of intention (either to kill or cause serious bodily injury) could not be faulted. It was suggested that the judge misdirected the jury by asking them to consider what the applicant did nor did not do or said or did not say at the relevant time. Those are all matters which the jury are entitled to consider when determining the issue of intention.
We concluded that there was no basis for any criticism of the learned trial judge's summing up to the jury and that the jury's verdict, in the light of the evidence, could not be regarded as unsafe. For those reasons the application for leave to appeal was dismissed.
