Act: D. Hughes; McClure Collins, Edinburgh

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

18 December 2009

The background circumstances

[1] On 16 April 2008 at the High Court sitting in Edinburgh, the appellant was convicted on charges (4), (5) and (6) of the indictment that he faced, subject to certain deletions. The terms of the charges on which he was convicted were as follows:

"(4) on 8 September 2007 at Craigton Road, Glasgow, you did assault Francis Boyle ... and did repeatedly strike him on the head and body with a metal bar or similar instrument, cause him to fall him to the ground, stab him on the head and body with a knife, all to his severe injury, permanent disfigurement, to the danger of his life and you did attempt to murder him; you did commit this offence while on bail having been granted bail on 14 August 2006 at Glasgow Sheriff Court;

(5) on 8 September 2007 at Craigton Road, Glasgow you did conduct yourself in a disorderly manner, present a knife at Karen Stephanie Zybilowicz ..., utter threats of violence, place her in a state of fear and alarm for her safety and commit a breach of the peace; you did commit this offence while on bail having been granted bail on 14 August 2006 at Glasgow Sheriff Court;

(6) on 8 September 2007 at Craigton Road, Glasgow being a public place you did have with you articles to which Section 49 of the aftermentioned Act applies, namely a knife; CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 49(1); you did commit this offence while on bail, having been granted bail on 14 August 2006 at Glasgow Sheriff Court."

On 14 May 2008, the trial Judge imposed an extended sentence of fifteen years' imprisonment, the custodial term being ten years, on charges (4) and (5). He imposed a sentence of eighteen months imprisonment on charge (6), which was ordered to be concurrent with the sentence already mentioned.

[2] The factual background to the appellant's convictions, as narrated by the trial judge in his report to this Court were as follows. On Saturday 8 September 2007, Scotland were playing Georgia at football. The match was broadcast on television during the course of the afternoon. A number of regular patrons of the Tall Cranes public house in Craigton Road, Govan had gathered in the public bar area to watch this match. Despite its close location to Ibrox, the Tall Cranes is a Celtic pub. At one end of the bar was one of these patrons namely John Coyne, the complainer on charge (2) of the indictment. He was wearing an unofficial Celtic top. Also in the public bar was the appellant. There were two unusual features of the appellant's presence. First, he was not a regular and had not been in the bar for some years, albeit that he knew various people in it, including John Coyne and one of the bar staff, Margaret Kilbride. Secondly, he was wearing a heavy three-quarter length parka style jacket, whereas almost everyone else was wearing T-shirts and, in some cases, shorts.

[3] At about 3.35pm John Coyne, who had not spoken to the appellant but who had expressed concerns about his presence to others in the bar, went to the toilet. Twenty seconds later, the appellant went to the toilet. A fracas ensued, with both men coming out of the adjacent lounge bar door of the toilet and falling on to the floor. John Coyne maintained that he had been attacked by the appellant in the toilet. He said that the appellant had brandished at least two weapons at him and had hit him on the head with one of them. The charge relating to those events was found not proven. The struggle between the two men on the lounge bar floor was captured on the pub's CCTV system. During the struggle, the appellant was on top of John Coyne. They were struggling for possession of a large kitchen knife which John Coyne ended up holding when the fight broke up. Meantime, many of the patrons went to the aid of John Coyne striking the appellant repeatedly about the head with a variety of implements, including a pool cue, bar stools and chairs and a bottle. The fight was broken up by Mrs Kilbride, by which time John Coyne had received a cut to the base of his nose and the appellant some serious cuts to his scalp. The appellant was, by this time, carrying some kind of baton.

[4] Mrs Kilbride attempted to persuade the appellant to leave the pub by way of the side door, rather than going back through the public bar as he had wanted to do. The appellant was so persuaded. About 200 yards up Craigton Road Francis Boyle, the complainer in charge (4) was in company with his girlfriend Karen Zybilowicz, the complainer in charge (5). Both seemed to have some degree of drug addiction. They lived on Craigton Road and were going to visit a friend at number 72. They were in the vicinity of the door to that close. Francis Boyle is a second cousin of the appellant by marriage. He had seen the appellant many times in the street, but they had not conversed for years.

[5] The appellant approached Francis Boyle and said, in an aggressive tone, "Hiya Frankie". He then struck him several times on the head with what was presumably the baton which he had when he left the pub. He followed this up by delivering a stab wound to his stomach. The blow penetrated four or five inches, going right through the stomach from front to back. Mr Francis Boyle was seriously injured. He collapsed outside a charity shop a little further down Craigton Road. At some point, the appellant's girlfriend appeared in a car and was asked to, and did, seek help from an ambulance crew which had gone to the Tall Cranes to assist one of the patrons, who had either fainted of had an epileptic fit. Help was obtained from a paramedic and Francis Boyle was taken to the nearby Southern General Hospital. There he received surgical treatment. A laparotomy was performed and the bleeding was stopped. The surgery took over two hours. The surgeon testified that the injuries were not complex, just dangerous. Francis Boyle would not have survived had he not had the surgery.

[6] In the meantime, the appellant had headed back towards the Tall Cranes. The appellant was observed by a pedestrian, Sarah Jackson, going towards the pub carrying two "sticks". He seemed to have wanted to re-enter the pub, but his way was barred by those inside. What he did thereafter was not clear.

[7] The appellant was next located in a cubicle in the Accident and Emergency Department of the Southern General Hospital, where he was attended to by a consultant, Dr Philip Munro, at 4.12pm, slightly over half an hour after the Tall Cranes incident. There he was found to have three wounds to his scalp, each about 4cm long. There was another wound to the temporal area of the head and this had cut a small artery from which blood was spurting. The artery was tied off, the associated wound stitched and those to the scalp were stapled.

[8] At the trial the defence proffered by the appellant was the unusual one of automatism. The appellant had been interviewed twice by the police. In the first of these interviews the subject matter was the events in the Tall Cranes public house. The appellant maintained, as he was later to do in evidence, that he could remember nothing of the assaults. His last memory, prior to the incident, was being at his girlfriend's flat, having carried out some decorating. He had been sitting finishing off "the tail end of a bottle of whisky" at about midday or 1.00pm. The next thing he remembered was being in the cubicle at the Southern General Hospital. He had no memory of being in the Tall Cranes, where he said that he had not been for years. He had been unaware of any incident involving his brother. His main concern during the interview appeared to be to prefer charges against those whom he alleged had assaulted him, which indicated that he did know that he had been assaulted. In a second interview, concerning the assault on Francis Boyle, the appellant maintained his position. He said that he had no recollection of being in Craigton Road. He said, "I can only think that [the injuries] had some sort of part in it".

[9] From the foregoing material, the trial judge narrates that the defence developed a theory of automatism, which derived little, if any support from the evidence. He observed that the main stumbling block for this line of defence was the testimony of Dr Philip Munro, a skilled Accident and Emergency consultant. He had seen the appellant within half an hour of the attack on Francis Boyle. Mr Munro said that he went through the usual routine with the appellant. He noted him as "alert", "fully orientated", with a normal level of consciousness (Glasgow Coma Scale 15). Mr Munro testified that he had asked the appellant whether there were any gaps in his memory and whether he had been knocked out. He had denied both, hence Mr Munro's note "denies LOC", meaning "denies loss of consciousness". The appellant had given him an account whereby he said that he had been assaulted with "knives, bar stools, snooker cues, the whole lot". According to Mr Munro the appellant appeared to have known what was going on. He found no evidence of post traumatic amnesia, or of any temporary dysfunction, or mental incapacity. The appellant had not been dazed and was conversing normally. Although Mr Munro was not able to completely exclude the occurrence of some temporary brain dysfunction, he could not find any evidence of it. There was, in his view, nothing to support a contention that the accused did not know what he was doing. At around this time, PC Andrew MacKinnon considered the appellant to be fit to be detained, being "alert, aware of where he was" and "engaging in banter". Much later at about 11.30pm a police surgeon, Dr Graham Strain, examined the appellant and declared him fit for interview. Again the appellant was "alert, orientated", and coherent.

[10] At the trial, the defence called three expert medical witnesses. The first, Dr Robert Gibb, was a consultant forensic psychiatrist, who explained that he had examined the appellant and could find nothing wrong with him mentally. He considered that non-insane automatism was more the province of an accident and emergency, or neurology specialist than his. The second, Dr Ruth Gilham, was a consultant psychologist, not a medical doctor. She had been asked the question by the appellant's law agents whether it was possible that he had suffered a concussive brain injury, which would have rendered him confused or disorientated to the extent that he was not responsible for his actions. Dr Gilham reported that she thought it unlikely that he could have suffered a concussion significant enough to have caused confusion and amnesia. If he had done, then she thought he could not have been described as "alert and well" so shortly afterwards. She considered that there was no evidence of a brain injury having occurred. However, she added that the appellant might still be telling the truth about his amnesia.

[11] The principal witness for the defence was another Accident and Emergency consultant, Mr William Tullett. He too said that there was no evidence of brain damage. He criticised Mr Munro because, on the basis of what he had read of Mr Munro's clinical notes, he did not think that he had explored the question of amnesia as deeply as he might have done. There was virtually no basis for this criticism other than the supposed sparsity of Mr Munro's record. Mr Tullett expressed himself in his report in this way. The appellant "does not appear to have been questioned regarding amnesia following the assault. This is an important line of questioning as the presence of pre- or post-traumatic amnesia is indicative of a degree of brain injury. The presence of post-traumatic amnesia in particular ... can occur in the absence of any other identifiable cause of brain injury ie. a normal Glasgow Coma Scale without a skull fracture. In addition there may be a transient degree of cerebral irritability following a head injury when an individual may become more aggressive for a short period. It is ... therefore entirely possible that the appellant suffered a degree of post-traumatic amnesia .... Furthermore it is in my view equally possible that he may have suffered a transient episode of cerebral irritability. The trial judge observes that cerebral irritability is, of course, not automatism and that Mr Tullett said that there was nothing presented to him to suggest that there was any element of automatism. Nevertheless he had said that it was "possible". In the event, the jury rejected automatism and proceeded to convict the appellant.

The grounds of appeal

[12] The appellant has tabled three grounds of appeal against conviction. All of these, in one way or another, allege misdirection of the jury by the trial judge. The first ground is focused upon the directions give by him at pages 7 and 8 of Part 2 of the transcript of the charge. In that part of the charge the trial judge was concerned with the definition of the crime of attempted murder. No issue is taken with the initial part of that direction. However, criticism is directed against the passage between lines 2 and 10 on page 8. The criticism is put in this way:

"It is submitted that in the context of the facts in this case said (sic) the use of the words 'and possibly' instead of 'or' gives the clear and misleading impression that (a) automatism was someway related to the jury's determination as to whether there was an assault and (b) automatism was not a complete defence in its own right. It is respectfully submitted that the learned trial Judge misdirected the jury regarding the defence of automatism."

In ground of appeal 2 it is said that the misdirection already alleged:

"... was compounded by the trial judge's further treatment of automatism. The trial judge describes the appellant as 'an amnesic' page 4 (Part 1). In his treatment of Dr Gilham's evidence at pages 53 and 54 the trial judge considers her expert evidence, regarding possible concussive brain injury which would have rendered him confused or disorientated to the extent that he was not responsible for his actions, and while stating that her testimony did not support this the trial judge noted Dr Gilham conceded the appellant might still be telling the truth. Dr Gilham's testimony was also to the effect that the Glasgow Coma Scale reading, evidence of which was directly given by Dr Munro, was not an infallible test for amnesia and confusion (a relevant factor in brain injury) in the appellant may have been present (sic). It is submitted that amnesia is an important and relevant starting point when considering automatism. Furthermore the appellant's consistent position was that he had no recollection of events leading up to the incident libelled in charge (4). It is submitted that if a person were to be a victim of an assault which left him dazed and concussed which left him temporarily incapacitated, then an external factor would be present to avoid conviction for any crime apparently committed by him when in such a condition - Ross v HMA 1991 J.C. 210, 1991 S.C.C.R. 823; Sorley v HMA 1992 J.C. 102 at 105. Dr Gilham's evidence therefore lends some support to the appellant's position and it is respectfully submitted that the trial judge's directions on said expert witness's testimony regarding amnesia and its relevance to brain injury, as offering some support to an assertion of automatism on the part of the appellant, [were] inadequate in the circumstances."

[13] In ground of appeal 3, having noted that the trial judge directed the jury that there was sufficient evidence for them to consider the defence of automatism, his further directions are criticised. The focus of the criticism is a passage at page 56, line 14 of Part 2 of the transcript of the Charge. There the trial judge said:

"Now, ladies and gentlemen, as I have said, the test for the defence of automatism is total loss of reason caused by an external force, such as brain injury or alcohol. Cerebral irritability, if all it does is to produce more aggression, is not the same as total loss of reason. The existence of amnesia may show some brain damage, but of itself does not meet the test for automatism."

The criticism is then focused in this way:

"It is respectfully submitted that the trial judge, having initially directed the jury to the effect that there was a sufficiency of evidence to consider the defence of automatism, has moved on effectively to direct them that the defence case taken at its highest could not found a defence of automatism. It is respectfully submitted that these parts of the trial judge's directions are insufficient and contradictory and the jury having been misdirected on the central issue in the defence case, it is submitted the jury would fail to apply the evidence to the correct legal framework thus denying the appellant a fair trial. It is respectfully submitted generally and as specified ... above that the trial judge has misdirected the jury on the law of automatism and the facts of the case applicable to it and that a miscarriage of justice has resulted."

The submissions for the appellant

[14] Counsel for the appellant said that the main criticism of the directions given to the jury was in relation to the trial judge's handling of the defence of automatism. In essence, the question was whether the trial judge had fully and adequately dealt with that defence in his charge to the jury. The law relating to automatism had been settled in Ross v HMA, a decision by a court of five judges. It was said that the trial judge's treatment of the medical evidence was also in issue. In connection with this matter counsel referred to pages 54 to 56 of the transcript of the Charge (Part 2). He also referred to passages from the evidence of Dr Tullett at pages 59 and following of the transcript of 15 April 2008. Returning to the transcript of the Charge, counsel drew our attention to a passage at page 56 of Part 2, lines 18 to 20, which he said was open to criticism. In that passage the trial judge appeared to be tending to exclude the defence. Looking at the Charge as a whole, when it came to the issue of automatism, it was submitted that the charge was sparse, incomplete and contradictory. An example of the confused nature of the Charge was to be found at page 7 of Part 2 of the transcript, lines 18 to 22. That criticism had been focused in ground of appeal 1. The passage at page 8 of Part 2 of the transcript, in particular, was open to criticism, as being confusing.

The submissions for the Crown

[15] The Advocate depute moved the Court to refuse the appeal against conviction. The law in relation to automatism was clear, having been laid down in Ross v HMA, particularly in the Opinion of Lord Justice General Hope, as he then was, at pages 832 to 833 and 837. Reliance was also placed on Ebsworth v HMA 1992 S.C.C.R. 671 at pages 676 to 677 and 680; and Sorley v HMA 1992 S.C.C.R. 396 at pages 401 to 402.

[16] The Advocate depute submitted that the trial judge, in allowing the jury to consider the defence of automatism, had acted in an unduly favourable way towards the appellant. The evidence relating to automatism was insufficient to justify a conclusion that it existed. The defence ought to have been withdrawn from the jury. Since it had not been, whatever the trial judge's treatment of the defence might have been, that could not have led to a miscarriage of justice. To entitle the jury to consider the defence there would have had to have been evidence from an appropriately qualified medical witness that, at the material time, the appellant had been suffering from a total loss of reason, caused by the external factor of a head injury sustained in the course of the events in the Tall Cranes public house. There was no such evidence. The evidence of Dr Tullett and Dr Gilham did not amount to evidence entitling the jury to acquit the appellant on the basis of automatism. There was no evidence of a total loss of reason. Indeed, it was notable that, in the course of the examination of witnesses and in cross-examination the issue of whether there had been a total reason was never put. In questioning, there was a degree of confusion between automatism and amnesia. That point had been highlighted by the trial judge at the bottom of page 11 of his Report to the Court. The high point of the evidence relating to automatism could be found at page 64 of the transcript of the evidence of Dr Tullett. That passage amounted to his saying that there was not such evidence. The Advocate depute went on to draw attention to passages in the evidence of Dr Tullett which showed that the appellant had sustained what might be described as a serious head injury which involved substantial bleeding, but there was no evidence that there had been any significant brain injury. Reference was made to page 60 of the transcript of his evidence. He went on to draw attention to passages in Dr Tullett's evidence where he dealt with matters of amnesia, loss of consciousness and cerebral irritability.

[17] He went on to draw attention to the evidence of Dr Philip Munro. At pages 14 to 15 of the transcript of his evidence he made it clear that, when he examined the appellant there was no brain dysfunction as a result of the head injury which he had sustained. The appellant had given to Dr Munro an account of how he had come by his head injuries, saying that he had been assaulted with knives, bar stools, snooker cues and other items.

[18] The Advocate depute then proceeded to draw attention to the evidence of Dr Gilham. She had found no confusion and amnesia; there was no evidence of a brain injury having occurred. The appellant had got himself to hospital without assistance.

[19] Looking at the evidence that had been led concerning the condition of the appellant, the Advocate depute submitted that the trial judge would have been quite entitled to have withdrawn the defence of automatism from consideration by the jury. On the evidence, the jury would not have been entitled to find an essential ingredient in the defence of automatism, namely a total loss of reason. Nevertheless, the trial Judge had not taken that course.

[20] Turning his attention to the trial judge's Charge, the Advocate depute drew attention to the passage at pages 19 to 21 and at page 56 of Part 2 of the transcript of the Charge. In these passages, the trial judge defined the defence of automatism in a manner which was wholly correct. At pages 21 to 24, he elaborated the definition which he had already given. Those directions also were impeccable. At pages 24 to 25, the trial judge related his definition of automatism to the evidence required. There could be no objection to that passage. At page 25 he stated that amnesia did not amount to automatism. Once again criticism could not be directed to that. At page 33, the trial judge gave the jury a direction on sufficiency of evidence, telling them that there was sufficient evidence for them to consider the defence of automatism. From page 43 of Part 2 of the transcript of the Charge onwards the trial judge drew to the attention of the jury certain passages from the evidence of expert witnesses including Dr Munro and Mr Tullett. The evidence of Dr Munro was of particular importance, since he saw the appellant very soon after the incidents involved. From page 52 onwards, the trial judge summarised the defence contentions in relation to automatism, referring to the evidence of Dr Munro, Constable MacKinnon, Dr Gibb, Dr Gilham and Dr Tullett. What he said about the position of Dr Tullett at page 54 was accurate. At page 55 to 57, the trial judge summarised the position relating to automatism and clearly left the jury with the possibility that they might find that automatism had existed, or, at least, that a reasonable doubt might have been created in their mind regarding that matter. In the whole circumstances, it could not properly be suggested that the Charge was defective in any respect relating to the matter of automatism.

[21] Turning specifically to the grounds of appeal that had been tabled, the Advocate depute submitted that ground 1 was without merit. The trial judge had clearly left the issue of automatism to the jury, although it could be argued that he should not have done so. As regards ground 2, he submitted that it possessed no substance. Amnesia and automatism were quite clearly different concepts. As regards ground 3, it was quite wrong to say that the trial judge had stated that the defence case, at its highest, could not found the defence. If he had taken that view, he could have withdrawn the defence from the jury, which he did not do. In all the circumstances, the grounds of appeal possessed no merit and the appeal should be refused.

The decision

[22] In the appellant's first ground of appeal it is contended that, at page 8 of Part 2 of the transcript of the trial judge's Charge the trial judge misdirected the jury regarding the defence of automatism. That contention appears to be based on what is said in that part of the Charge where the trial judge is furnishing the jury with a definition of attempted murder, the crime alleged in charge (4) of the indictment. On page 8, the trial judge makes the point that before the jury could properly consider the issue of attempted murder, they would require to be satisfied that the complainer had been assaulted. He states that, without an assault, there could be no attempted murder. He then makes the observation that is criticised: "So if you decide there was no assault, and possibly automatism, you need not get involved in these aspects of murder."

[23] In our opinion, in considering whether the observation criticised amounts to a misdirection of the jury, it is necessary to have regard to the terms of the Charge as a whole and not simply to focus upon a single sentence in it. The trial judge gives directions on the defence of automatism between pages 19 and 24 of Part 2 of the transcript of the Charge. It is perfectly clear from that passage that the trial judge explained to the jury that automatism was a complete defence to charge (4) and the related charges, because, if it were shown that the appellant's actions were the result of automatism, it followed that the appellant would not have had the necessary criminal intent, with the result that no crime would have been committed and acquittal would have been appropriate. At page 21 the trial judge observed:

"And if the accused person, therefore, in this case, was in that state, in a state of temporary total loss of reason, or even [if you] have a reasonable doubt about that, then he would fall to be acquitted of the charge and would be free for ever of it and its consequences."

In our view the matter could hardly have been put more clearly. In our opinion, seen in the context of the Charge as a whole, the language used at page 8 could not give rise to an impression that automatism was somehow related to the jury's determination as to whether there was an assault. At page 21, it was made quite clear that it constituted a complete defence to the whole of charge (4). In these circumstances we conclude that ground of appeal 1 possesses no merit.

[24] Turning to the subject matter of ground of appeal 2, the contention appears to be that the alleged misdirection referred to in ground of appeal 1 was compounded by the trial judge's further treatment of automatism. Particular reference is made to the trial judge's discussion of Dr Gilham's evidence at pages 53 and 54 of Part 2 of the transcript of the Charge. Having carefully considered this particular passage, we do not think that it is in any way objectionable. What the trial judge has done here is to remind the jury of the contents of Dr Gilham's report and evidence. He then went on to draw attention to the fact that she had also said that the appellant might be telling the truth regarding amnesia, which, of course, of itself is not synonymous with automatism. In the latter part of this ground of appeal, so far as we understand it, it appears to be contended that the trial judge's directions as regards Dr Gilham's evidence were in some way unfair or misleading. We cannot agree with that contention.

[25] Turning finally to ground of appeal 3, at pages 24 and 33 of Part 2 of the transcript of his Charge, the trial judge made it clear to the jury that there was sufficient evidence to entitle them to consider the defence of automatism that had been advanced. However, criticism is focused on the passage quoted in the ground of appeal to be found at page 56 of Part 2 of the transcript of the Charge. There, beginning at page 54, the trial judge draws the attention of the jury to the evidence of Dr Tullett the Accident and Emergency consultant who gave evidence concerning the condition of the appellant shortly after the relevant events. In the passage which is criticised, the trial judge is giving to the jury a quotation from Mr Tullett's report interspersed with the observation that a particular part of that report was perhaps the high point of the defence case. We cannot agree that there is anything objectionable about this part of the judge's Charge in the context of the Charge as a whole.

[26] In Ross v HMA, the Court gave what has become an authoritative definition of the defence of automatism. At an earlier stage in the Charge from page 19 onwards, the trial judge gave to the jury an explanation of the defence of automatism, which in our view cannot be criticised. In our view that explanation of the defence is entirely consistent with the exposition of the law contained in Ross v HMA. As part of the trial judge's explanation, at page 25 he points out correctly that amnesia is not a defence because amnesia in itself does not amount to automatism, but is simply loss of memory. Finally, at pages 56 to 57, the trial judge plainly puts the issue of automatism before the jury, saying this:

"So, ladies and gentleman, you have heard what Mr Tullett has said, you have heard the medical experts in the case. Does their evidence present to you a basis for considering that at the time of the events in Craigton Road the accused person suffered from automatism? If it does, or it provides you with a reasonable doubt about that matter, then you give the benefit of that doubt to the accused and you acquit him of that charge. If it does not provide you with a reasonable doubt then you would convict at least of the assault element."

In our view, having regard to that passage in the Charge and the earlier definition given to the jury of the defence of automatism there can be no doubt that they would have clearly understood the nature of that defence. We reject the suggestion that the trial judge's directions in this regard were insufficient and contradictory, or that the jury were in any way misdirected. Accordingly we reject this ground of appeal also.

[27] In all these circumstances the appeal against conviction is refused.