COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL
B e f o r e :
Mr JUSTICE GROSS
Mr JUSTICE McFARLANE
Raymond Charles Rock
Alan Barry Joseph Cherry
Michael Ian Faulder
Mr Michael Mansfield QC and Mr Peter Wilcock for Lorraine Harris and Alan Barry Joseph Cherry
Mr Michael Mansfield QC and Mr James Gregory for Raymond Charles Rock
Mr Michael Mansfield QC and Mr Robert Woodcock for Michael Ian Faulder
Hearing dates: 16 June 2005
Crown Copyright ©
Lord Justice Gage :
"I woke up to give him his feed and he wasn't breathing. Not until I picked him up and sort of shook him. He seems as right as rain now."
"The prosecution assert that she killed Patrick by deliberately shaking him violently or by shaking him violently and then throwing him down in his cot so as to cause bleeding inside his skull, thus leading to his collapse and death. The defendant denies that she did any such thing. She cannot explain her son's collapse and death, but maintains that she did nothing which might have brought about that death. If you are not sure that the defendant killed Patrick, then you find her not guilty"
After deliberating for just short of three hours the jury returned a verdict of guilty of manslaughter.
"It is for you to say, but you may think that, in the end, the defendant was bound to admit that he had shaken Heidi, and shaken her before she became floppy, because the evidence that she was shaken is so strong, so overwhelming. How else were those injuries caused to Heidi, if it were not by the defendant shaking her, and shaking her with considerably excessive force? That is a question you are entitled to ask yourself, obviously. There is no question of accident here. It is not suggested that what the defendant did was done otherwise than deliberately."
"So, I must leave it open for you to say whether the defendant is not guilty of anything. I am allowed, however, to suggest to you that not guilty of anything is not a realistic verdict in this case. As I say, you decide this case. If you think that the defendant's account that he did not shake Heidi violently so as to cause those injuries to Heidi from which she died, that his account is true or may be true, then he is entitled to be acquitted both of murder and manslaughter."
After deliberating for a period of forty minutes the jury returned a verdict of guilty of murder.
"The cause of her death was a swelling of the brain caused by an impact of one sort or another. It is the prosecution case that the impact was in consequence of an unlawful blow delivered by this defendant. Your task will be to decide whether that case is proved or not."
After deliberating for just over two and a half hours the jury returned a unanimous verdict of guilty of manslaughter.
"Was this or may it have been accident or design? If you come to the conclusion that this is or may have been a tragic accident it follows that the defendant cannot be guilty of count 1 or count 2 and must be acquitted by you. That is the simple issue for you to decide."
The triad and the unified hypothesis
"I think we might not have the theory quite right. I think possibly the emphasis on hypoxia - no, I think possibly we are looking more at raised pressure being the critical event. "
And later in her evidence:
"Q. Dr Geddes, cases up and down the country are taking place where Geddes III is cited by the defence time and time again as the reason why the established theory is wrong.
A. That I am very sorry about. It is not fact; it is hypothesis but, as I have already said, so is the traditional explanation. … I would be very unhappy to think that cases were being thrown out on the basis that my theory was fact. We asked the editor if we could have "Hypothesis Paper" put at the top and he did not, but we do use the word "hypothesis" throughout."
The unified hypothesis ("Geddes III")
"Our observations in the present series indicate that, in the immature brain, hypoxia both alone and in combination with infection is sufficient to activate the pathophysiological cascade which culminates in altered vascular permeability and extravasation of blood within and under the dura. In the presence of brain swelling and raised intracranial pressure, vascular fragility and bleeding would be exacerbated by additional hemodynamic forces such as venous hypertension, and the effects of both sustained systemic arterial hypertension and episodic surges in blood pressure. "
Thus, it was suggested that all the injuries constituting the triad could be attributed to a cause other than NAHI. We understand that this paper has been much cited in both criminal and civil trials since its publication.
Geddes I and II
Degree of force
" It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child."
"Nobody really knows whether, when you shake a child, it is just back and forth or there is rotation as well. What does the head do? Does it decelerate against the back? Does it decelerate against the chin? When you put the child down, there must be an element of deceleration. It is a complex problem."
"It has been demonstrated experimentally and validated through real-world accident analysis that various intracranial pathologies result from excessive angular acceleration of the head. In general, angular acceleration of the head creates relative motion between the brain and the skull, causing potentially injurious strain within the intracranial neural and vascular tissues (bridging vessels, deep central white matter). The nature, distribution and severity of the resulting pathology depend not only on the angular acceleration magnitude, but also on its direction, onset rate and duration."
a) Shaking only could not produce the documented pathologies seen in these children;
b) If "violent shaking" of the sort required to produce the documented injuries had taken place one would have expected cervico-medullary injury, cervical spine and spinal cord injury.
"31 In the board's view the law is now clearly established and can be simply stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury. That said, if the court regards the case as a difficult one, it may find it helpful to test its view "by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict": R v Pendleton 1 WLR 72, 83, para 19. The guiding principle nevertheless remains that stated by Viscount Dilhorne in Staffords case  AC 878, 906, and affirmed by the House in R v Pendleton:
"While… the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rest with them and them alone for deciding the question [ whether or not the verdict is unsafe]"
32 That is the principle correctly and consistently applied nowadays by the criminal division of the Court of Appeal in England – see, for example, R v Hakala  EWCA Crim 730, R v Hanratty, decd  3 ALL ER 534 and R v Ishtiaq Ahmed  EWCA Crim 2781. It was neatly expressed by Judge LJ in R v Hakala, at para 11, thus:
"However the safety of the appellant's conviction is examined, the essential question, and ultimately the only question for this court, is whether, in the light of the fresh evidence, the convictions are unsafe."
"These observations serve to highlight the second problem which can arise in this case, and case like Sally Clark and Trupti Patel. We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remain as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both hear and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge".
But as the court was careful to point out later in the judgment at paragraph 178 this does not mean that fanciful doubts are a basis for rejecting expert evidence. With the general observations, referred to above and the legal principles in mind, we turn to the individual appeals. Furthermore, the limits of Cannings and its proper use were carefully explored in Kai-Whitewind, at  – , in observations with which we wholeheartedly agree.
"Diffuse cerebral swelling and oedema secondary to hypoxia/ischaemia. Thin subdural haematoma in the para-falsine region. The appearances are suspicious of shaking or shaking - impact injury"
"The post-mortem examination confirmed a markedly swollen and softened brain and softened spinal cord with small amounts of subdural haemorrhage around the tentorium cerebelli at the foramen magnum and in the subdural space along the length of the spinal cord. Detailed examination by Professor Lowe confirmed widespread hypoxic (anoxic or ischaemic) changes within the brain resulting in marked swelling, necrosis of the cerebellum, haemorrhage into the left lateral ventricle and subarachnoid haemorrhage over the surface of the spinal chord and medulla. Professor Green confirmed extensive haemorrhages through the retina and the vitreous of both eyes with some retinal detachment"
Dr Bouch recorded the cause of death as cerebral hypoxia/ischaemia; intracranial haemorrhage; shaken baby syndrome. In his witness statement Dr Bouch said he had been advised that Patrick may have been shaken as part of an attempt to revive him. He said that he could not exclude such a shake as having caused the injuries but commented "accepted medical opinion is that the force required to produce injuries from shaking is greater than that resulting from rough handling of an infant". As already noted, Dr Punt said that the blood on the surface of the brain was not sufficient to cause Patrick's death. In his opinion it was the injury to the brain, caused by shaking, which caused his death.
The new evidence on the appeal
The ophthalmic witnesses
Evidence of a possible infection
"My reason for making that statement is simply that there are many cases where questions are raised as to how the child died and, because there is a big question mark over the circumstances, it is rather tempting to assume that ways of causing death in this fashion that we do know about are the only reasonable explanations. But in fact I think we have had examples of this – I have heard already. There are areas of ignorance. It is very easy to try and fill those areas of ignorance with what we know, but I think it is very important to accept that we do not necessarily have a sufficient understanding to explain every case."
As noted by the Court in Cannings and Kai-Whitewind these observations apply generally to infant deaths.
Conclusion in this appeal
"The clinical history is perhaps the most important clinical tool available to the clinician and to reject the carer's version of events in favour of another requires the highest possible level of medical evidence. After all, the Doctor is effectively accusing the carer of lying."
Dr Anslow is not a clinician but in our judgment his words of caution are apt in cases of this sort.
The focus of the appeal
The new evidence on the appeal
"Q. If you leave the corpus callosum out of the equation, when you say it just might be feasible, what do you mean?
A. Because in medicine there is never a hundred per cent certainty. So, if I was asked is there a hundred per cent certainty that it could happen, I would have to be honest and say no, there must be almost the freak situation where that could happen.
Q. What are the chances from your clinical experience?
A. By inference, 99 per cent unlikely."
In his final submissions, Mr Mansfield QC sought to suggest that these answers disclosed a major concession on Dr Jaspan's part. Having seen and heard Dr Jaspan give evidence and having reviewed the transcript of his answers, we respectfully disagree. The essence of Dr Jaspan's views remained plain and unaltered, albeit couched in rather more moderate and less graphic language than apparently deployed at trial.
"I believe that both the intracranial and the intraocular bleeding are likely to have been the result of vigorous to-and-fro movements of the brain inside the skull, of the type that occurs in a shaking injury."
Subsequently, Dr Geddes has (as is well-known) revised her thinking. That said, in her evidence at trial, Dr Geddes accepted the presence of subdural haemorrhages but was unable to provide an explanation for them. She remained of the view that for violent shaking to have produced the subdural and retinal haemorrhages here, she would have expected some form of widespread diffuse axonal injury and damage to the muscles in the neck and spinal column. She accepted, however, in answer to questions from the Court, that, on any view, Heidi must have had some insult to the brain, not explained by Rock's account of events. She could not rule out impact plus shaking.
"Subdural haemorrhage is essentially always traumatic in origin except under very unusual circumstances…."
In itself, of course, that answer cannot resolve the source of the trauma nor, insofar as it was inflicted by another, the intention with which it was inflicted.
"…I do not know either an upper limit or a lower limit of impact velocity below which there is no injury and above which there is always injury."
Dr Plunkett's evidence related to the cases of Rock, Cherry and Faulder. We shall have more to say of his evidence, in particular with regard to the Cherry case.
"Q. The retina is completely detached from the eye?
A. The retina is folded up very much like a rug would be if you pushed it together. It is not detached in the same way as boxers get retinal detachments, but the fact that it is folded means it is not in the place that it should be."
A little earlier, Dr Gregson had observed that in children of Heidi's age, he knew of no other cause for para-macular folds other than trauma; this was so, regardless of when the para-macular folds had first appeared. Moreover, the presence of para-macular folds was indicative of severe injury – "a lot of trauma" was required. His reason for this view was as follows:
"…the retina wants to stay attached; it does not want to fold. It requires an effort to detach it."
"I do not believe that the presence of retinal haemorrhages necessarily implies a specific level of force although I think the level of force is likely to be more than would be seen in even rough normal play."
"The minimum level of force required to produce this syndrome can not be defined, but the recent Royal College of Ophthalmologists Working Party concluded 'It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child.' In my opinion, it is now not possible to exclude the possibility that a well-intentioned but ill-advised shake might cause the pattern of pathology seen in Heidi. The same Working Party commented 'It seems clear that minor falls can, only exceptionally, give rise to subdural and retinal bleeding. In these cases, it may well be that the biomechanics of the impact induce the rotational forces necessary to produce the picture considered typical of SBS.' So it is difficult to exclude with total confidence the possibility that the fall caused the injuries seen. Finally, it is also feasible that Heidi was assaulted."
In answer to questions from the Court as to this passage, Professor Luthert asserted that he had relied on Geddes I and II but not Geddes III. Professor Luthert said that he had been a member of the Working Party and agreed with its conclusions. While he was (in effect) contemplating the infliction of some force going beyond rough play, by itself that did not determine the intention of the person inflicting the force.
i) The fall as described by Rock was not the cause of Heidi's retinal haemorrhages;
ii) The injuries to Heidi's eyes were at the very top end of the scale;
iii) The cause of those injuries was shaking or shaking and an impact;
iv) Simply by looking at the retinal haemorrhages, it could not be said "definitively" what level of force had been applied.
i) On behalf of Rock, some play was made with the moderation in language employed by Crown experts between the trial and the appeal; in this regard, as we have seen, considerable emphasis was placed on the alleged "concession" made by Dr Jaspan, an emphasis we have already indicated we regard as misplaced. We think that the submission as to moderation of language is correct as far as it goes; but we do not think it goes very far. Doubtless, as expert thinking has evolved, so, rightly, the language has moderated and become less graphic or emotive. Those are welcome developments. But when the totality of the evidence is considered, there is nothing in any of this to suggest that the safety of Rock's conviction is undermined.
ii) Dr Geddes, as we have seen, was puzzled as to the absence of other injuries, if indeed Heidi had been the subject of violent shaking. We have given this matter anxious consideration but ultimately regard it as decisively outweighed by the overwhelming evidence pointing to a degree of force (or violence) at least going beyond even rough play. There is, as has frequently been urged on us, no precise correlation between force inflicted and the gravity of the injuries suffered.
iii) As seen in the passages set out earlier, the Judge summed up in robust terms. On the evidence before him, no proper criticism could be made of those passages. Given the totality of the evidence now before the Court, even though an alteration in expression might have been warranted, we do not think that any change to the substance of the summing-up would have been such so as to undermine the safety of a conviction for unlawful killing on this ground.
" 48. Other grounds of appeal having been examined, and in the end abandoned, that leaves only the question of whether the jury was entitled to find that she intended to do really serious harm. We are troubled about that. One brief period of violent shaking by a frustrated mother and child-minder was all that was required to explain this death. Apart from the bruises to the neck, no other injuries were found. As the judge said, an intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter.
49. Even allowing for the jury's obvious advantage in seeing the appellant give evidence, we have been unable to discern anything which, in our judgment, would have made it safe for the jury to convict this appellant of the more serious charge. In our judgment, the less serious charge was the only safe verdict. If the jury had had the additional benefit of hearing the fresh medical evidence we have heard, they might well have come to the same conclusion."
i) The Crown's position had shifted between trial and appeal; at trial, this was a case of impact; now it was a case of both shaking and impact; but that was not how the matter had been placed before the jury.
ii) There was new evidence to the effect that death or serious injury from low level falls could not be ruled out. In addition, there was a possibility that Sarah had aspirated vomit. Death could have resulted from a combination of the two. In any event, if this was a case of both shaking and impact, the innocent combination of an accidental fall followed by a resuscitative shake could not be ruled out.
iii) Great care had to be taken in approaching the bruising on Sarah's head and body, both in the light of the new evidence and the course which the trial had taken.
iv) In all the circumstances, the conviction was unsafe.
The new evidence on the appeal
"The degree of trauma necessary to produce such damage is considerable and the findings are not consistent with a simple fall onto a carpeted surface. They are consistent with the head being forcibly propelled against a hard surface or a blunt object contacting the head.
Apart from the brain injuries there are a number of bruises on the body. The sighting of a number of these is highly suggestive of non-accidental injury rather than being caused accidentally – in particular the bruises to the buttock, face, thigh and arm. "
" A 23 month-old was playing on a plastic gym set in the garage at her home…She had climbed the attached ladder to the top rail above the platform and was straddling the rail, with her feet 0.70 metres (28 inches) above the floor. She lost her balance and fell headfirst onto a 1-cm (3/8 inch) thick piece of plush carpet remnant covering the concrete floor. She struck the carpet first with her outstretched hands, then with the right front side of her forehead, followed by her right shoulder. Her grandmother had been watching …. And videotaped the fall. She cried after the fall but was alert and talking…However, approximately 5 minutes later she vomited and became stuporous…. A CT scan indicated a large right-sided subdural haematoma…. The haematoma was immediately evacuated. She remained comatose postoperatively, developed cerebral oedema with herniation, and was removed from life support 36 hours after the fall….."
Dr Plunkett suggested that, as her head had been some 42 inches above the ground when the fall began and as her body length was some 30 inches, it was equivalent to her falling from a chair 12 inches high. We confess some difficulty with this reasoning but we nonetheless continue with our consideration of Dr Plunkett's evidence. We do acknowledge that we felt, as indeed Dr Anslow later expressed it, "shocked" that a fall, as captured on the video (which was shown to the Court), could have resulted in a fatality; this, indeed, may be the strength of Dr Plunkett's evidence, so far as it goes. Nonetheless, it is pertinent to record the following: (i) It transpired, as explained by Dr Plunkett in his oral evidence following the playing of the video, that the rail from which the child fell was in fact 39 inches above the floor, not 28 inches; (ii) she fell a sufficient distance for her to rotate and so as to fall onto her head with some 2/3 of her body weight contributing to the impact; (iii) there was a lucid interval after the fall (unlike the cases before us); (iv) the haematoma was large and lop-sided (again unlike the thin film haematomas encountered in cases such as the present); Dr Plunkett agreed that the mass effect of this haematoma caused the child's death. Notwithstanding all these factors, Dr Plunkett continued to maintain that the Case 5 fall was "exactly comparable" to a 12 inch fall. The velocity was relevant and what was not known was the "minimal impact velocity" required to cause these types of injuries.
"Q. …your paper does not establish the proposition that any impact, no matter how minor, can lead to fatal consequences, does it?
A. That is correct."
After some questioning from the Court, Dr Plunkett acknowledged the common sense proposition that the lesser the distance of the fall, the less likely it was to cause an injury to a vulnerable part of the body. In any event though for a time it seemed that Dr Plunkett was resistant to the suggestion, the distance of a fall is a necessarily relevant consideration. Dr Plunkett's own formula for impact velocity was as follows: Velocity (V) squared = 2 x Acceleration (A) x Distance (D). From this it must follow that, all other things being equal, a reduction in D will result in a reduced V.
"Q. You have used the word 'severe'. Degree of force required in this particular case?
A. Far in excess of anything we see in normal life with children of this age. Children are toddling around at this age. They fall over all the time. It they suffered severe head injury from little falls, the casualty departments would be inundated with them, the intensive cares would be full of them, my operating theatres would be operating or dealing with them on a daily basis. I have not seen a child of this age suffer a severe head injury in my 24-year neurosurgical career from a minor injury as described or….as considered. This very short 6-inch fall."
Other than being prepared to accept never to say never, try as Mr Mansfield QC might, Mr Richards did not shift in substance from this answer.
"…there is no doubt that Sarah vomited and aspirated material into her lungs. The vomiting was described by Mr. Cherry and was confirmed by those who arrived to help. A chest X-ray later in the day of injury showed 'widespread airspace shadowing throughout both lungs'. The hypoxia which this would have caused is likely to have resulted in or at least contributed to the gross cerebral swelling that was present. "
In his oral evidence, Mr Wrightson said, early on, that this was "the key to the whole situation". There was no reason for Cherry to have invented the evidence he gave. As to aspiration, the ambulance personnel described a "bubbly" chest. At the hospital, copious bloodstained fluid came out from the lungs; the chest x-ray and the findings on post-mortem were likewise said to support these conclusions.
i) Neurogenic pulmonary oedema ("NPO") was a condition involving fluid in the lungs as a result of something catastrophic happening to the brain. It is characteristically immediate. The description given by the para-medics was "almost a text-book" description of NPO:
"A combination of the noisy chest, with obvious fluid, with pink frothy secretions coming out of the mouth and the child making respiratory effort to overcome this fluid in the chest are all typical. It could read like a text-book description."
ii) At no stage was there any evidence of aspirated vomit. The most relevant evidence was that of Sarah's appearance at intubation. Had aspiration been a major cause of respiratory failure then, typically, when the tube was placed into the lungs there would be a "welling up" from the chest of whatever was aspirated. No suggestion of aspirated vomit was made by the intensive care staff; to the contrary the fluid seen remained pink and frothy and became more blood-stained as time passed. This was a typical pattern of NPO. Had the fluid been erythromycin (a very common child's antibiotic which Sarah had been given), Dr Peters would have expected the paediatric staff to recognise the difference between it and blood-staining.
iii) To cause respiratory distress suddenly, massive aspiration was necessary. If so, however, it would have been apparent on intubation and subsequent care. Conversely, unless it was massive, it would not be a "credible cause" of this respiratory distress of this severity.
i) On any realistic view, the fall here (if fall there was or might have been) was of a very different type and nature from those forming the subject of Dr Plunkett's study. The factual differences between any fall here and Dr Plunkett's Case 5 (said to be the closest comparable) are marked indeed, not least with regard to the nature of the subdural bleeding found.
ii) Even if the reservations in i) above are put to one side, notwithstanding the extent of Dr Plunkett's research, there is no example of a 6-8 inch fall, from a static object, causing death or serious injury to a 21 month old child. As he himself agreed in cross-examination (see above), it does not follow from Dr. Plunkett's study that any impact, no matter how minor, can lead to fatal consequences.
iii) Even if (contrary to the above) it was thought that Dr Plunkett's study did mean that a fall from the chair here was capable of furnishing a realistically possible innocent explanation for Sarah's death, it remains necessary to address the two separate sites of scalp bruising. Professor Whitwell conducted the post-mortem; as she agreed in her oral evidence, her impression (at least at the time of the trial) was that the two separate areas of scalp bruising had been caused at about the same time. Inevitably and as Professor Whitwell further agreed, no scientific developments since the trial could alter the relevance of these two separate sites of bruising. Accordingly, for the fall to be capable of providing an innocent explanation of these injuries, it was necessary to postulate two impacts (window and floor) in the course of the same fall. As it seems to us, this is pure speculation and stretches credibility altogether too far.
iv) We have set out earlier Mr Richards' observations (i) that if such falls did generate severe injuries, casualty departments and the like would be inundated; but (ii) that in more than 20 years of practice he had never encountered a severe head injury in a child of this age arising from a 6 inch fall. Some caution is necessary in approaching these observations; first, there is no claim that serious injury is the inevitable result of falls of this nature; secondly, "never" is an unfortunate word. Nonetheless, when this evidence based on practical experience is considered cumulatively with reasons i) – iii) above, it furnishes powerful support for the conclusion that the notion of an accidental fall in this case, causing or contributing to Sarah's death, is simply fanciful.
v) We are not swayed from our view by the evidence of biomechanics summarised earlier. This is a complex, developing and (as yet) necessarily uncertain area of scince, as illustrated by the stark divergence of opinion between Dr Bertocci and Dr Thibault. Be that as it may, Dr Thibault's views are altogether too difficult to reconcile with evidence of primary fact in this case, for the conviction to be regarded as unsafe by reason of the biomechanical evidence.
a) had the jury been aware of the new evidence they might not have been certain that Faulder's account was untrue; and
b) the medical evidence now available provides a possible alternative explanation for N's injuries and challenges the prosecution case that the injuries must have been caused by shaking.
i) Area of erythema (ill defined flushing of the skin) that was 'grazed/bruised' located directly on top of the head;
ii) A triangular fresh bruise 2cm by 2cm above the forehead;
iii) A 2cm linear bruise on the left side of the head above the ear;
iv) A small deep blue bruise over the right forehead;
v) A second small deep blue bruise over the right forehead but more centrally sited;
vi) Marked swelling over the top of the occipital bone in the midline.
vii) Thin fresh subdural haemorrhage along the falx with a thin layer of subdural blood over the surface of the brain (seen on the first CT scan at 7.44 am on the morning after admission, it remained largely unchanged in subsequent scans);
Brain swelling and HII
viii) In the first scan (12 hours after the 999 call) there is no significant brain swelling or injury. Subsequent scans over the following three days show developing brain swelling and hypoxic-ischaemic injury in both cerebral hemispheres.
Changes in the Crown's Case
(1) The appellant's account of the fall
(2) Causation of brain injury
Shaking or Impact
a) Faulder's account of N falling from his outstretched arm is now accepted as a possible event;
b) The brain injury is now seen to be a secondary hypoxic-ischaemia rather than as a result of primary intra-cranial trauma;
c) The mechanism for injury is now stated to be a number of blunt force impacts to the head, rather than the massive violent shaking mechanism put forward at trial.
Dr San Lazaro
Overview of Faulder's case
a) Shaking and slamming down involving very severe force (Dr San Lazaro and Dr Alexander at trial);
b) Non-specific inflicted head injury (Dr Jaspan and Mr Richards) involving secondary, but not primary, brain injury (Dr Jaspan);
c) Multiple (at least six) blows to the head (Professor Jenny and Dr Rorke-Adams) causing primary localised brain injury (Dr Rorke-Adams);
d) A bending and stretching injury to the respiratory nerves in the cranio-cervical junction causing a secondary brain damage. On the basis that the minimum degree of force required to cause subdural haemorrhages is unknown, all the symptoms could have been caused in the fall described by Faulder (Professor Whitwell);
e) A blow to the skull during the fall from Faulder's arm, causing the baby's skull temporarily to deform and directly injure the underlying brain substance, which may then hinder respiration and cause secondary brain damage (Dr Plunkett).
i) What is the minimum degree of force required to cause these injuries? and
ii) Might the injuries have been incurred by a fall as described by Faulder?
(1) Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
(2) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate.
(3) An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions.
(4) An expert should make it clear when a particular question or issue falls outside his expertise.
(5) If an expert's opinion is not properly researched because he considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one.
(6) If after exchange of reports, an expert witness changes his view on material matters, such change of view should be communicated to the other side without delay and when appropriate to the court.
"Where that occurs, the jury will have to resolve the issue which is raised. Two points must be made. In my view, the expert who advances such a hypothesis owes a very heavy duty to explain to the court that what he is advancing is a hypothesis, that it is controversial (if it is) and placed before the court all material which contradicts the hypothesis. Secondly, he must make all his material available to the other experts in the case. It is the common experience of the courts that the better the experts the more limited their areas of disagreement, and in the forensic context of a contested case relating to children, the objective of the lawyers and the experts should always be to limit the ambit of disagreement on medical issues to the minimum."
We have substituted the word jury for judge in the above passage.