Neutral Citation no. [2001] NICA 16	Ref:     	NICE3394	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	06.04.2001	
(subject to editorial corrections)	 	 	

 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
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THE QUEEN
 
V
 
STEPHEN PETER SCOTT
 
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NICHOLSON LJ
 
Introduction
	This is an application on behalf of Stephen Peter Scott for leave to appeal against conviction and sentence on the first count of an indictment charging him with Murder, contrary to common law.  The particulars are that on 4 April 1998 he murdered Sylvia Fleming.  His trial commenced before Kerr J and a jury on 28 March 1999, he was found guilty of murder by the unanimous  verdict of the jury and was sentenced by Kerr J to life imprisonment on 5 April 1999.
	An application for leave to appeal was refused by McLaughlin J.  We heard the renewed application for leave, refused leave and stated that we would give our reasons later.  We now do so.

 
 
The Case for the Prosecution
 
	Sylvia Fleming, then 17 years of age, was seen alive by Katrina McMullan at about 11.15pm on Friday 3 April 1998.  She left the house of Miss McMullan at 68 Meelmore Drive, Omagh, Co Tyrone at that time.  She was reported to the police as missing by her sister, Kathleen Fleming, on the afternoon of Sunday 5 April 1998.  On Sunday 31 May 1998 the police carried out a search of a building site known as Glenside, Circular Road, Omagh as a result of information supplied by Paul John Rigby, a co-accused of the applicant.  The dismembered body of Sylvia Fleming was found buried under the floor boards of a room or rooms in a house under construction on the site.  The details of the dismemberment were described by the State Pathologist, Professor Crane.
	He found that the most probable cause of death was some form of mechanical asphyxia causing interference with breathing.  This could have been effected by obstruction of the mouth and nose, such as in suffocation or by compression of the neck, either manually or using a ligature, ie strangulation.
	No signs of strangulation were seen but it could not be ruled out.  The possibility of poisoning also needed to be considered and in particular, the administration of a drug or drugs by injection.  He concluded that there seemed little doubt that death was due to some unnatural event, most likely mechanical asphyxia.  Then after death the body had been dismembered and the body parts secreted.  The condition of the remains would have been consistent with death having occurred at about the time of her initial disappearance.  She was pregnant at the time of her death.
	On a number of occasions during the month of April 1998 persons spoke to the applicant about Sylvia Fleming.  He denied any knowledge of where she was.  He made a witness statement to D/C Coyle on 20 April 1998.  In it he stated that he had gone out with her for about six weeks towards the end of January, then they split up.  He last saw her in late March.  She told him that she was pregnant.  She telephoned him on the evening of Friday 3 April.  It was arranged that she would call at his flat on Saturday but she did not.  He was informed by Denise Galbraith, a co-accused, that she had called at his flat after 11pm on Friday but he was not at home.  He had had no contact with her since the telephone call on the Friday.  During the course of making the written statement he informed D/C Coyle that a man whom he named was the love of her life and had a sexual relationship with her.
	On 30 May 1998, after her body had been found, the applicant was arrested for the alleged murder of Sylvia Fleming, was cautioned and taken to Omagh RUC Station where he was interviewed in the presence of his solicitor on a number of occasions.  All the interviews were tape-recorded and transcripts were prepared.
	In the course of the first interview he told the police that the last time he actually saw her was on the morning of her disappearance.  She came round to his flat about 7am, stayed for about an hour and they ended up having sex.  He did not see her after that but Denise (Galbraith) told him that she had called round after 11pm.  Then he told the police that she had called round the next morning (Saturday) around 7am and they had sex.  She then left and on the Sunday he learnt that she was missing, he panicked and when the police came and asked him if he had seen her, he said “No”.
	In the course of the second interview he denied involvement in her murder.  In  the course of the third interview he said that Sylvia came to his flat on the Friday evening, and that they had sexual intercourse; for a joke he proceeded to tie her up.  She was blindfolded.  He had a bottle of insulin and injected it into her.  He called Stephen (McGeown), a co-accused, and Denise (Galbraith) in from the room next door in his flat.  The cord that he had tied round Sylvia’s hands was looped from one of her hands round her throat to the other hand.  It was looped round her neck.  The hands were tied to the headboard [of the bed].  Her legs were also tied to the foot of the bed.  Stephen proceeded to pull on one of the cords and it tightened and at first it was a bit of a joke but the joke got out of hand, Stephen pulled it and then said he didn’t think she was breathing.  She was dead.  He and Stephen got her body up to the attic and rolled her in a blanket.  Then they went swimming in the local swimming pool.  
When he returned to the flat, he said that it was put to him [by the others] that they would have to dispose of the body.  Stephen suggested that they cut her up and Denise went to a shop and bought some black bags.  The applicant proceed to cut her up in the bath in the flat and put her into plastic bags and then put her in two boxes up in the attic.  The body was cut up with a hacksaw.  Stephen held her while he cut and sawed.  Later they buried her. Paul Rigby, a co-accused, helped to bury her.  He described where she was buried.  This was where her body was found.
	Later in the interview he described how he gave her sleeping pills.  He repeated in detail how he tied her up, how she was blindfolded with tape and was taped over the eyes and over the mouth by him and how the tape actually went over her nose.  He stated that he injected her in the leg with insulin using a syringe.  He repeated the allegation that Stephen pulled the cord.  He stated that he didn’t remember if he had said on the Friday evening to Stephen and to Denise before Sylvia came to the flat that he was going to kill her.  He didn’t remember if he had said it as a joke or said something in passing and they picked it up like that.  He might have made a comment like that.
	He said that he had originally thought that he was the father of Sylvia’s child and then when the police put to him at interview that there was an element of doubt, he said that he was doubtful.  He described how all her clothes and other things were subsequently burnt.  He repeated in considerable detail how they had dismembered and disposed of the body.
	He was questioned about why he had injected her with insulin.  He said that it was just to see her reaction.  When asked by the police how he explained her death to Rigby he said that he told him that he had injected her with insulin but added that Stephen (McGeown) caused her death.
	During the course of the next interview he said that at the time of Sylvia’s death Rigby was in England.  He told Rigby on the telephone that she had gone missing.  Rigby came over to Northern Ireland.  They met.  He told Rigby that she was dead, that they had cut her up but had not got rid of everything.  Later he said that he told Rigby that Stephen (McGeown) had panicked because he had thought he had killed her so that he told Stephen it was maybe the insulin (which he had injected) that caused her death.  They had hidden parts of the body before Rigby came over to Northern Ireland.  Rigby helped to hide the remainder of the body.
	He described again the events of the night of Friday 3 April and early morning of 4 April.  He said that he had tied her up on two, three or four previous occasions.  He said that she enjoyed it.  On this occasion two ropes were used, one of which was nylon.  She did not object to him tying the ropes round her neck.  He used one dosage of insulin on her.  She didn’t agree or disagree to it.  She was tied up for more than an hour before he injected her.  Then he said it was half an hour.  Stephen and Denise joined them.  He left to go to the toilet.
	He said that he may have been away 15 minutes; when he came back Stephen said she was dead; he checked for her heart beat, did a few chest compressions, then removed the tape.  He was panicking.  No-one phoned for a doctor or an ambulance.  Stephen was the one playing around with the cord around her neck.  He never went near the cord.  He described again taking her body to the attic and then going for a swim with Stephen, coming back to the flat, dismembering the body and concealing the corpse.  
	At one stage of the interviews when he alleged that Stephen pulled on the rope or cord he agreed that he did not untie her or remove the tape after Stephen did this.  During the course of the third interview he stated that he was present when she died.  In the fourth interview he said that he was in the toilet when she died.
	The evidence established that he was a person who had first-aid training as a fire-fighter.  The attempts which he claimed that he made to resuscitate her were inconsistent with this training.
	Dr Ian West, an expert in pathology, gave evidence that the application of bindings in the manner described by the applicant might accompany sado-sexual activity.  Even excluding the ligature compression of the neck described by the applicant he considered that death would be the anticipated sequence of the actions described and undertaken by the applicant in his interviews – the obstruction of the mouth, the administration of insulin and, most importantly, leaving her unattended (as he claimed).  He considered these actions to be, at the minimum, acts of extreme recklessness.  Later he said that to bind somebody in this manner, to administer insulin and then to leave her meant that one could foresee that such conduct would lead to serious harm or to her death.
 
The Course of the Trial
	At the close of the Crown case Mr McDonald made submissions to the trial judge that the charge of murder should be withdrawn from the jury on the same grounds as he advanced before this court.  The learned trial judge ruled that there was evidence upon which a jury, properly directed, could conclude to the requisite standard that the accused was responsible for the death of the deceased in the sense that his acts were at least a substantial cause of her death.  He stated that he was also satisfied that the jury were entitled to find that he either intended to kill her or to cause her grievous bodily harm at the time when the injuries (which were the cause or a substantial cause of her death) were inflicted on the deceased.
	Defence counsel informed the court that the applicant did not intend to give evidence and stated that his client was aware of the consequences.
	After speeches from counsel the learned trial judge summed-up the case to the jury in a manner which could not be faulted.  All the relevant matters of law were set out clearly and concisely for the jury,  not least that the case for the prosecution depended in part on circumstantial evidence.  He gave a careful and appropriate direction on that aspect of the case.  He warned the jury that they must not allow the understandable emotional reaction to the facts leading to the death of the deceased and the aftermath of it to cloud a dispassionate analysis of those events.
	He summarised the evidence of Professor Crane and Dr West as to the cause of death and referred to the evidence which implicated the applicant in a fair and proper way.  He dealt with the issue of intention comprehensively and left the issue of manslaughter to the jury as he was duty bound to do.
	The grounds of appeal were that the conviction for murder was unsafe for the following reasons:-
(a)        the evidence in the case did not justify the refusal of the learned trial judge to grant a direction application by the defence at the end of the prosecution case;
(b)       in permitting the case to proceed to the jury on the charge of murder there was a grave risk that the dreadful events in the aftermath of the deceased’s death would create in the mind of the jury an irresistible inference that the accused’s action before the death must have been designed to bring about the death.
	In the course of his submissions to this court Mr McDonald QC added a third ground that the judge ought to have directed the jury that the prosecution must establish that Scott intended actually to kill the deceased in order to obtain a verdict of guilty on the count of murder (as he had submitted during the course of the summing-up).
	Mr McDonald reviewed the evidence as to the cause of death with special reference to the evidence of Dr West and submitted that the cause of death had not been established by the prosecution.  We have set out what we regard as relevant portions of the evidence of Professor Crane and Dr West.  We are satisfied that the jury were entitled to conclude that a substantial cause of death was asphyxia.
	The admissions of the applicant that he had tied the legs of the deceased to the foot of the bed and her arms to the headboard and that a rope or cord was or cords were looped round her neck by him and that her eyes and mouth were taped by him and that the tape covered her nose at times for a period of about an hour entitled the jury to conclude that these acts played a significant part in causing her death by asphyxiation.
	It was contended that there was no evidence of intention to kill or cause grievous bodily harm.  We are satisfied that the admitted actions of the applicant were such as to justify the jury in drawing the inference that at the very least he intended to inflict grievous bodily harm.  It is a matter for the jury to infer whether what can be foreseen from knowledge is intended.  
Section 4(1) of the Criminal Justice Act (NI) 1966 provides:-
“Where on a charge for an offence it is necessary to determine the knowledge or state of mind of a person at any time the jury … may infer that that person at that time –
 
(a)        had knowledge of his conduct and of the natural and probable consequences of that conduct; and
 
(b)       either intended those consequences, or, if he did not intend them, was reckless as to whether or not they would ensue from that conduct.”
 
  Grievous bodily harm could be foreseen by the applicant, as the evidence established.  The intention to inflict it could be readily inferred from the circumstances established by the evidence.
	Apart from his actions the applicant attempted to exculpate himself as to the death and to blame a co-accused, lied consistently to the police and others before the finding of the dismembered body of the deceased and, during the course of interviews, gave an account of tying up the deceased for a joke, was unable to explain satisfactorily why he did not untape the mouth of the deceased until she was dead, was unable to explain why he injected her with insulin which could have induced a coma and could have been undetected, said that he could not remember whether he had told his co-accused, Stephen McGeown and Denise Galbraith that he intended to kill her, and had a motive for killing her in that he was aware that she was pregnant and had found out before she came to the flat that someone other than he was or might well be the father of the child in her womb.
	Moreover his story to the police changed significantly in interviews.  At one time he stated that he was present in the room when she died; at another he said that he was in the toilet.  It was open to the jury to find that he was callous and cruel in his treatment of the deceased before and after her death.
	Therefore, we are in no doubt that the jury were entitled to infer that he intended to cause at least grievous bodily harm to the deceased.
	We are also satisfied that the prosecution conducted the case on alternative bases, namely that he intended to kill or cause grievous bodily harm and that the learned trial judge was correct in leaving the case to the jury on these alternative bases.
	For these reasons we dismissed the application.

 
 IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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THE QUEEN

V

STEPHEN PETER SCOTT

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JUDGMENT
 
OF
 
NICHOLSON LJ
 
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