APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Hardie Lady Smith	[2009] HCJAC 76 Appeal No: XC907/06 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by COLIN ALEXANDER COWIE, Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Shead, Borthwick; The Barony Law Practice

For the Crown: Di Rollo QC, AD.; Crown Agent

12 August 2009

The conviction

[1] In November 2006 at Aberdeen High Court the appellant was tried on the following charge:

"On 3 April 2006 and 4 April 2006, at Regent Quay, Commerce Street, Cummings Park Drive, Howes Road, all Aberdeen, a car park off the B944 road near Elrick Hill, Aberdeen, and elsewhere you SHAUN AIDEN PATON, DEVIN MARK LESLIE also known as MARK RUSSELL, COLIN ALEXANDER COWIE and COLIN STEWART did assault Dean Thomas Jamieson, c/o Grampian Police, Queen Street, Aberdeen and at Regent Quay aforesaid, you KEVIN MARK LESLIE also known as MARK RUSSELL, COLIN ALEXANDER COWIE and COLIN STEWART did induce said Dean Thomas Jamieson to enter motor vehicle registration number X152PSA, confine him therein against his will and convey him to Cummings Park Drive, aforesaid, and thereafter you SHAUN AIDEN PATON, DEVIN MARK LESLIE also known as MARK RUSSELL, COLIN ALEXANDER COWIE and COLIN STEWART did convey said Dean Thomas Jamieson to Howes Road, aforesaid, place a knife at his throat, rifle through his pockets and rob him of a watch, a wristband, a ring, a tobacco tin and contents, and a quantity of money, convey him to a car park off the B944 road near Elrick Hill aforesaid, force him to exit said motor vehicle, threaten him with a knife, force him to remove items of clothing, rob him of said items of clothing, repeatedly punch and kick him on the head and body, repeatedly stamp on his head and body, repeatedly strike him on the head and body with knives or similar instruments, cut an item of clothing off him, all to his severe injury, abandon him in said injured condition and in a state of undress in freezing conditions whereby he died and you did murder him ... "

In the course of the trial the advocate depute made certain amendments to the indictment that are not material to this appeal. On the amended charge, Leslie was found guilty as libelled, the appellant was found guilty under deletion of the words "repeatedly strike him ... with knives or similar instruments" and Paton was found guilty of culpable homicide under the same deletion. The advocate depute withdrew the libel against Stewart in the course of the trial. The appellant was sentenced to life imprisonment with a punishment part of 18 years. He appeals against conviction and sentence.

The evidence

[2] The appellant used a motor car for the purposes of unlicensed taxi driving in Aberdeen. In the late evening of 3 April 2006 he picked up the deceased, who was drunk. Leslie, Stewart and the appellant's cousin Philip Eddie were in the car. Leslie suggested that they could get money from the deceased. The appellant dropped off Eddie and drove to pick up Paton at his house. Leslie and Stewart went into the house. They and Paton came out with a large bread knife.

[3] The appellant then drove to a remote track in countryside at the foot of Elrick Hill, outside Aberdeen. There he pulled the deceased from the car, punched him and told him to strip. The deceased was then dragged around, thrown to the ground, robbed of his belongings and punched and kicked on the head and body. The appellant stamped on his head. Leslie inflicted three deep knife wounds on his head from which he bled profusely. The deceased's jeans and boxer shorts were pulled off. Then Leslie inflicted several horizontal lacerations on his thighs.

[4] It was a bitterly cold night. The appellant drove off with Leslie, Stewart and Paton, leaving the deceased lying bleeding on the ground clad only in a long sleeved t-shirt. On the way back to Aberdeen the appellant and Leslie joked about the incident. Stewart suggested that they should call an ambulance. The appellant and Leslie refused. Stewart suggested that they should go back to see if the deceased was all right. The appellant and Leslie said that he would be okay. In the course of the journey they put the deceased's jeans in a bin.

[5] The appellant took Paton home and went with Leslie and Stewart to the home of Maria Stout. There the appellant and Leslie boasted about what they had done. There was blood on the appellant's trainers and on his track suit bottoms. He and Leslie said that the appellant had stamped on the boy's face and that Leslie had punched and stabbed him. According to Eddie, Leslie said inter alia that they had left him for dead. Samantha Stout said that the appellant and Leslie were speaking and laughing in the kitchen; that one of them said that he had stabbed the deceased five times on the chest and once on either side of the cheek, and had tried to take skin from his arm; and that one of them admitted that he had punched him on the face and stamped on his head.

[6] Eddie said that when Stewart and Leslie had been dropped off at their respective homes, the appellant showed him a video of the state of the deceased on his mobile phone and told him that he had been trying to get better pictures of the boy's face and that there was so much blood, it was "like the pictures."

[7] The appellant then drove to a hotel in Aberdeen where his mother worked, and told her that he had battered someone and that the boy was in a real mess. Eddie and the appellant's mother told him to go to the police, but he refused. Later he drove to Eddie's home and changed his clothes. Later he told Eddie that he was "scared ... in case the boy didn't make it ... with the stab wounds and jumping on the boy's head." Next morning he told Eddie that he had not been able to sleep and had been up worrying that the boy might have died.

[8] Stewart gave evidence. He said that when he had returned home it started to snow. He telephoned the appellant and asked him to take him out to see if the man was okay and had the help he needed. The appellant replied "No, don't bother. I've already been out, he's not there."

[9] The deceased suffered considerable blood loss and hypothermia with an accompanying confusional state. The pathologists' evidence, together with the forensic evidence, suggested that the deceased had staggered or crawled about in an increasingly confused state before collapsing. The onset of hypothermia was attributable to the bitterly cold conditions including the wind chill factor, the victim's lack of clothing, the exposed skin area, accelerated loss of body heat resulting from the body being wet and loss of blood from the head wound. The alcohol drunk by the deceased dilated the blood vessels, accelerated the loss of heat and increased his confusion, thus masking his appreciation of cold.

[10] The appellant admitted that he had been at the locus and taken part in the incident. His defence was that he was guilty at most of culpable homicide.

[11] One of those present at Maria Stout's home on the night of the incident was Joanne Cameron, aged 18. She was cited as a witness for the Crown. On 9 October the trial judge granted a warrant for her arrest. She was admitted to bail. On 19 October the advocate depute called her to give evidence. She took the oath in what the trial judge describes as an affected and inappropriate manner. Thereafter she was insolent, angry and evasive. In view of her insolence and prevarication, the trial judge gave her a warning. Apart from conceding that she had seen the appellant on 4 April and had had a normal conversation with him, she maintained that she had seen and heard nothing. Her behaviour then took a turn for the worse. She uttered obscenities, interrupted and shouted. She said that her police statement was "a load of bullshit," that the police had made it up and that they were lying. After one or two further questions she said "I'm not answering the questions". In a later outburst she said that "the police made up the whole fucking statement." When the advocate depute suggested that he would prefer her to answer his questions, she replied "I would prefer you to shut your fucking gob."

[12] At this point the trial judge asked the jury to withdraw. The witness was taken outside. Having considered the position in the light of submissions from counsel, the trial judge had her brought back. She directed her to answer the questions, to tell the truth and to give evidence in connection with the police statement that she then had in front of her. The witness's behaviour soon deteriorated again. It became so bad that she was told to leave the court. The trial judge revoked her bail and adjourned the trial for the day.

[13] On the following morning the macer and the clerk of court asked the witness to enter the courtroom. She adamantly refused.

[14] The advocate depute applied for an order in terms of section 259 of the Criminal Procedure (Scotland) Act 1995. The trial judge granted the application.

[15] Later that day the advocate depute sought to lead the evidence of PC Andrew Wilson, one of the officers who had taken Joanne Cameron's police statement. Counsel for the appellant objected. Thereafter the trial judge ruled that Joanne Cameron's refusal to enter the courtroom and her behaviour in the witness box in the face of directions and warnings from the trial judge constituted a refusal to give evidence, in terms of section 259(1) and 2(e)(ii).

[16] PC Wilson then read out Joanne Cameron's statement. I need not quote it. It was highly incriminating of the appellant. It confirmed and amplified the evidence of the other witnesses who had been in Maria Stout's house.

Grounds of appeal

Ground 2

[17] This ground is to the effect that the pre-conditions of section 259(1) and (2) were not met because it was not established that on 20th October Joanne Cameron "refused" to answer questions relating to her statement. Counsel for the appellant submitted that no attempt had been made to have the witness physically brought into court, by force if need be. If that had been done, she would then have been given a further warning, with which she might well have complied.

[18] Section 259(2)(e)(ii) provides that a statement is admissible as evidence of its contents if the maker of it is called as a witness and either refuses to take the oath or to affirm or, having been sworn as a witness and directed by the judge to give evidence in connection with the subject matter of the statement, "refuses to do so." It is agreed that Joanne Cameron was called as a witness, that she was sworn as a witness and that she was directed by the judge to give evidence in connection with the subject matter of the statement. So the only question is whether her conduct constituted a refusal.

[19] In our opinion, the trial judge was right in concluding that by her conduct, the witness had in effect refused to give evidence in connection with the subject matter of the statement. There is no substance in the contention that section 259 would have applied only if the witness had been brought to the witness box by force and had thereafter refused to give the relevant evidence. The trial judge was right to accept the word of two officers of the court, both of whom had repeatedly asked the witness to come into the courtroom and give evidence, that the witness was refusing to do so.

[20] Since there was, in our view, a refusal in terms of section 259(2)(e)(ii), it follows that the Crown was entitled to lead evidence of the statement. It is true that, as counsel for the appellant submitted, that evidence had adverse consequences for the appellant, but that is irrelevant. The legislation contemplates that as soon as the pre-conditions of the section are satisfied, consequences such as those may follow (cf N v HM Adv, 2003 JC 140). We reject this ground of appeal.

Ground 1

[21] This ground is to the effect that the trial judge misdirected the jury by directing them that carelessness would be a sufficient mens rea for the crime of murder. This turns on two sentences in the charge in which, in defining murder, the trial judge said:

"In more modern language murder is the taking of human life by a person who has a wicked intention to kill or whose acts are shown to have been wickedly reckless to the consequences, careless whether someone lived or died" (Charge, p 21, lines 2-3); and

"If you are satisfied that an accused acted in such a way that he didn't really care whether the victim lived or died, that indicates the wicked recklessness required by the law" (ibid, p 22, lines 13-17)."

The question of wicked recklessness as an aspect of mens rea was of considerable importance in this trial. I need not go over the charge in detail. It is sufficient to say that the trial judge left the jury in no doubt that for the mens rea of murder there had to be either a deliberate intention to kill or wicked recklessness; and that there was wicked recklessness where the conduct of the accused demonstrated that he did not care whether the victim lived or died. That was the context in which the trial judge used the words "careless" and "didn't really care." Counsel for the appellant has wrested these words from their context to suggest that the trial judge directed the jury that carelessness would be a sufficient mens rea for murder. That is a wholly unreasonable reading of the charge. The trial judge gave accurate directions on the point. There is nothing in this ground of appeal.

Ground 3

[22] This ground is to the effect that the verdict was perverse because the jury found the appellant guilty under deletion of the allegation of the use of knives. There is nothing in this ground of appeal either. Even if all of the evidence relating to the use of the knife and its consequences was ignored, there was ample evidence to convict the appellant. Hypothermia was one of the direct causes of death. The appellant was fully implicated in the leaving of the victim, semi-naked and in freezing conditions, to die.

Miscarriage of justice

[23] If there had been anything in any of these grounds, we would have held that there was nevertheless no miscarriage of justice. There was powerful evidence against the appellant. He drove the car; he was involved in the plot to rob the deceased; he was involved in preparatory acts for it; he took part in the attack, he stamped on the deceased's head, and he abandoned the deceased in the circumstances that I have described. There was also evidence that he and Leslie gloated over their part in the incident, that he refused to return to the locus to help the deceased and that he lied that he had gone back to the locus to check.

Appeal against sentence

[24] Counsel for the appellant suggested that the difference between the punishment part of 20 years imposed on Leslie and the punishment part of 18 years imposed on the appellant did not adequately reflect the mitigating factors on which the appellant relied. The appellant had not served any previous custodial sentence; he had no record of violence; there were mitigating factors in the social enquiry report and he had expressed remorse.

[25] The trial judge took all of these factors into account; but when all was said and done, this was an unprovoked, cowardly and barbaric killing made all the worse by the fact that it was premeditated and prepared for. We cannot say that the punishment part imposed by the trial judge was excessive. On the contrary, we think that it was entirely appropriate to the crime.

Disposal

[26] We refuse the appeal in both branches.