England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		8 July 2009

LORD JUSTICE STANLEY BURNTON:

1. The appellant in this case, Anandakumar Ratnasabapathy, died soon after his conviction, before His Honour Judge Katkhuda and a jury, in the Crown Court at Isleworth on two counts of an indictment against him relating to injuries suffered by his daughter Yalini, who had been born on 16 July 2002. Those counts charged cruelty to a person under 16 years, contrary to section 1(1) of the Children and Young Persons Act 1933 (count 1) and causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861 (count 2). The jury were discharged from returning a verdict on count 3, inflicting grievous bodily harm contrary to section 20 of the 1861 Act. The appeal is brought by the deceased appellant's sister, Mrs Dias, under section 44A of the Criminal Appeal Act 1968 with the approval of the Vice President of the Court of Appeal. Leave was granted by the full court on one ground only, namely the adequacy or inadequacy of the summing-up in relation to the appellant's state of mind having regard to his diagnosis of Autistic Spectrum Disorder ("ASD").
2. The appellant's trial was a retrial. At his first trial, he had been convicted of the same charges as those that are the subject of this appeal. His appeal against those convictions was allowed on the basis of new evidence as to his mental condition, specifically that he suffered from ASD.
3. Yalini was the daughter of the appellant and his wife Rajani Ratnasabapathy. They were both from Sri Lanka and married in Australia in 2001 before coming to this country. At the time in question they lived in Southall. As mentioned, their daughter Yalini was born in July 2002.
4. At about 10.25pm on 7 October 2002, following a 999 call, an ambulance crew attended the appellant's home address. They found Yalini lying on the floor on top of some bedding. She was not breathing and did not have a pulse. The appellant and his wife were both present in the house at this time. Resuscitation was started and, when there was no response, the baby was taken to Ealing Hospital and there intubated and ventilated by the Accident and Emergency staff. The following day, Yalini was transferred to the Paediatric Intensive Care Unit at St Mary's Hospital, Paddington, where she was found to be severely brain damaged as a result of prolonged cardiac arrest.
5. X-rays taken on 11 and 14 October revealed that eight of Yalini's bones had been broken and there was one suspected fracture. Those injuries had all occurred between two and five weeks before 7 October.
6. The result of the brain damage suffered by Yalini on 7 October was severe permanent disability, which included an inability to move any of her limbs, chew or swallow normal food, and partial blindness. A severe case of cerebral palsy was the culmination of her disabilities. Twenty-four hour care and medication will be required for the rest of her life. There is only a 50% chance of her surviving to the age of 18. Those consequences were the grievous bodily harm which was the subject of count 2.
7. The particulars of the charges faced by the appellant were:

Between 31 July 2002 and 7 October 2002, being a person who had attained the age of 16 years and had responsibility for Yalini Ratnasabapathy, a child under that age, wilfully neglected her in a manner likely to cause unnecessary suffering or injury to the child, contrary to section 1(1) of the Children and Young Persons Act 1933. (Count 1)

On 7 October 2002 he unlawfully and maliciously caused grievous bodily harm to Yalini Ratnasabapathy with intent to do so, contrary to section 18 of the Offences against the Person Act 1861. (Count 2)

Count 1 related to the injuries suffered by Yalini before 7 October 2002 (i.e. the various fractures). Count 2 related to a deprivation of oxygen on that date that caused her brain damage.

8. There was ample evidence that the injuries that led to count 1 were non-accidental. There is no issue as to that on this appeal. There was no evidence as to which of her parents had caused the injuries found on admission to hospital, if indeed it was one of her parents who had caused those injuries (which was, however, the likelihood). As a result, both parents were charged with cruelty. At the first trial Rajani (the appellant's wife) was found guilty of that offence.
9. The prosecution case on count 1 was that the fractures, which were only discovered by the medical authorities on a skeletal survey on 7 October, subsequent to her admission to hospital, must have caused the child to express her pain by cries and screams. Notwithstanding this continuing situation the appellant, her father, then aged 36, along with his wife, took no purposeful action to provide the medical care and assistance for Yalini which would have been obviously necessary for the treatment of her fractures and, consequently, they neglected her in a manner likely to cause her unnecessary suffering or injury.
10. The prosecution case on count 2 was that the appellant, at the family home, used such unlawful force on the child, including the insertion and use of a pipette in her mouth to feed her, that prolonged cardiac arrest occurred resulting in brain damage to the child.
11. The prosecution suggested that the appellant had a motive for his actions in relation to Yalini. Soon after the birth he discovered that his wife had a history of mental illness which had not been disclosed to him before their marriage. His own medical evidence was to the effect that he felt devastated, betrayed and cheated by this.
12. The appellant did not give evidence at this trial. It is accepted on behalf of the appellant that he used a pipette to feed Yalini, and thereby caused the oxygen starvation to the brain and the cardiac arrest that resulted in her brain damage.
13. It is apparent that by their verdicts the jury at the second trial found that the appellant had indeed failed to take appropriate action to obtain medical care for his daughter's injuries. On count 2, they found that the action of the appellant on 7 October caused Yalini to suffer the starvation of oxygen to her brain and cardiac arrest.
14. The issue raised by the expert evidence which the defence called at the trial was that the appellant suffered from ASD and that that concerned the mental element of the offences. They contended that, by reason of that condition, he was less likely than a normal person to appreciate that Yalini was in pain and in need of medical attention (count 1), and would be less likely to appreciate that his actions on 7 October were harming her or were likely to do so. It followed that it had not been proved that he wilfully neglected her or that he had intended to cause her grievous bodily harm.
15. The expert evidence called by the defence was that of Dr Canagasabey, a consultant psychiatrist, and a psychologist, Dr Holmwood. Dr Canagasabey's professional field included assessing and managing referrals for Autistic Spectrum Disorder, neuro-psychiatric and general psychiatric disorders. He testified that the appellant suffered from ASD and that such a condition in the appellant regarding the feeding and handling of Yalini decreased his efficiency in understanding and appreciating her needs. It lessened his responsiveness to the baby's needs and his perception of the baby's experience of pain. This did not, however, mean that he was not capable of deciding what he wanted to do and going on to do it. He was capable of appropriate behaviour towards Yalini, as had been demonstrated when on an earlier occasion he and his wife had taken the baby to hospital at the end of July 2002 because he felt that he had injured the baby, having heard a clicking of the arm when he picked her up. At the end of August they had again taken her to hospital because they felt that she was too heavy. He was capable of following advice as to how to handle the baby and of seeking advice from the midwife. But his rigidity of mind was shown by the fact that he had compiled a chart on his computer which he checked to ensure that the baby received precisely the right amount of milk.
16. Dr Joanna Holmwood, a chartered clinical forensic psychologist, experienced with Autistic Spectrum Disorders, interviewed and carried out tests on the appellant on 6 May 2006. She confirmed that the appellant suffered from ASD. She considered that he might not have considered all possible explanations for the baby crying, or been able to recognise or consider the implications of the baby's resistance to being fed. His inflexibility of thought, his preference for rule-based decision and his concern about feeding his daughter precisely the right amount of milk, coupled with deficits in consequential thinking, all served to increase the risk that the appellant engaged in feeding techniques that were potentially harmful to the baby without realising that they were so. Later incidents of touching the baby's head demonstrated a failure of consequential thinking and difficulty in predicting what might happen as a result of his actions.
17. There are three areas of difficulty encountered by a person suffering from Autistic Spectrum Disorder: social communication, social interaction and social imagination. The appellant had difficulty in each of those areas. Dr Holmwood was asked about how his condition might have impacted on the Appellant's daughter. She said:

"In my opinion, the deficits in social problem-solving and in being able to empathise with others and in perceiving the consequences of his behaviour could provide an explanation that in trying to provide her with appropriate care, there was a risk that the defendant might have adopted fixed details of feeding of his daughter and how much the baby should be feeding rather than [the transcript reads 'inaudible'] look of what might be needed."

(Clearly there was a reference to the needs of the child rather than the appellant's decision as to how the child should be fed.)

"[The appellant] acknowledged that his injury to his daughter was due to not knowing a safe way of picking her up by the arm. His discussion of feeding her with a pipette and his rationale that he could monitor the amount of milk was likely to have been interpreted as a rule. He said that he did not force milk into the baby's mouth but accepts that what happened is due to his feeding methods. I interpreted it that with hindsight, his behaviour could be problematic. He said that only when he returned to the baby that she was blue and was having breathing difficulties.

In terms of Autistic Spectrum Disorder problems, [specifically] based on a baby crying, he might not have interpreted the baby crying in any other context; he would not have attached a mental state to crying. It is only when there were additional indications like the baby turning blue that he recognised that something was wrong, therefore needing this additional information to recognise that the baby was in difficulty. For example, when he picked up the baby and heard a 'funny cracking sound' and then realised that there could have been a problem. Then when he said he saw Yalini with her mouth open and no sound coming out of it, at that point he made attempts to ring for help."

18. The summing-up was certainly not a model of its kind. The crucial issues, from the point of view of the present appeal, were whether or not the appellant had the necessary intent to be found guilty of the offences charged in counts 1 and 2. No complaint would be made of the summing-up if there had been no relevant issue as to the mental elements of the offences. The complaint is that the direction should have been tailored to the issue and evidence in the present case. We think this complaint is justified. There should have been an analysis of these mental requirements of the offences together with references to the expert evidence called by the defence so that the jury could easily understand what were the mental issues in the case and the relevance of the defence expert evidence to those issues. Instead, the jury were given standard directions as to the mental elements of the counts together with, but separate from, a comprehensive reiteration of the defence's expert evidence. The direction as to the mental element in count 1 is at page 15C of the transcript and on count 2 at page 17D.
19. Do these deficiencies mean that the verdicts are unsafe? It cannot be suggested, and is not suggested, that the evidence before the jury was not sufficient for them to be sure that he was guilty of both offences. The evidence was that the injuries suffered by Yalini that were the subject of count 1 would have caused her intense pain. Her screams and cries would have been obviously different from those of a child in normal circumstances. The injury that was the subject of count 2 involved the airway of the child being blocked for three to ten minutes, during which she would have been struggling to breath and would eventually have turned blue. Those signs would have been obvious to any normal person. Conversely, it is not suggested by the prosecution that a reasonable jury, properly directed, could not have been unsure as to whether the prosecution had established the mental element of those offences. The question for us is whether the deficiencies in the summing-up are such that there is real doubt as to whether the jury understood what the prosecution had to prove and the relevance of the defence evidence to those elements of the offences sufficient for them to be able to scrutinise that evidence, together with the other evidence in the case and reach safe verdicts.
20. For that purpose it is not sufficient to say that counsel would have accurately summarised the issues and the evidence in their speeches to the jury. Counsel's speeches are not a substitute for an adequate summing-up. Their speeches may be borne in mind by this court by way of background, but they are not a substitute for a full and accurate summing-up.
21. We think it necessary to consider the judge's summary of the defence evidence to see whether the issue to which it related would have been evident to the jury.
22. In fact, much of the evidence of Dr Canagasabey was unhelpful to the defence. By way of example, he had admitted (at page 215B of the transcript of the summing-up) the appellant's reaction to his discovery of the mental illness of his wife, that is that "he was devastated, felt betrayed, cheated and descended into long depression feeling which exacerbates episodically". At page 224C he confirmed that the appellant "was capable of deciding what he wanted to do and going on and doing it". At 225G he confirmed that the appellant "was capable of appropriate behaviour towards Yalini", and he gave examples to which we have already referred. At page 226G, having been shown the transcript of the 999 call, he said: "From this, it looks as if he [the appellant] is capable of following instructions of using two fingers to press her [Yalini's] chest five times. They called the ambulance. He would not have perceived the pain or discomfort the baby was having and if the baby was fighting and struggling vigorously he would have noticed that". A little later he said: "He [the appellant] had the ability to see that the baby was distressed, if he had seen the baby struggling. His autism is an impairment and it is not a complete lack of capability".
23. At page 229 and following, the judge summarised the evidence of Dr Holmwood. That paragraph to which we have referred accurately summarises the issue raised by the defence. At page 230F she referred to the feeding of the child with a pipette. She said: "He [the appellant] discussed feeding his daughter with a pipette but did not know that this method would cause her difficulties. He acknowledged that because he was new to parenting he did not know the correct technique of picking up the baby and it was out of ignorance that he picked her up in a problematic way". There is an important passage between pages 234 and 236 to which we have referred. At page 240 Dr Holmwood said: "There is nothing in the [appellant's] condition that prevents him from being capable of intending to do something and there is nothing in [his] condition that prevents him behaving appropriately in a given set of circumstances. In July he took the baby to the hospital after picking her up in an inappropriate way and heard a cracking. He might have hurt the baby and decided to take her to hospital. There is nothing in his condition that prevents him following advice. It requires communication to be 100 per cent sure; to understand advice you need certainty of communication and to interpret it. He has the possible capability of following advice and of seeking help and of summoning help. As for his capability to recognise a baby is in real distress there will need to be something additional as an obvious cue to indicate to the [appellant] that the baby was in distress. This increases the chance of him picking up something is different. When [the] baby turned blue, for example, that would be sufficient". When asked about the breathing on 7 October, and it was put to her that breathing was obstructed for three to ten minutes and that the baby would have been struggling vigorously to clear her airway, Dr Holmwood replied, "This could be, depending how forceful he was in feeding the baby. It is important to take into consideration the circumstances. Because of disorder, this could have overridden his attention and it could be that he knew very well that something was wrong. Screaming would be an additional and obvious cue. If it was a scream he had not heard before, it could be an additional cue".
24. That was the last part of the summing-up given to the jury before the court adjourned for lunch. We think that it is evident from those passages that this evidence went to the question whether the appellant had the mental element required by these offences, and that it must have been evident to the jury. We are fortified in this view by the fact that no attempt was made at the time by counsel for the appellant to ask the judge to clarify for the jury the issues raised by the defence evidence, although other points were raised by Mr McKiernan, one of which led the judge, at page 258, to remind the jury of the possible explanation for the appellant touching his daughter's head when he had been told not to do so.
25. Perhaps more importantly, when the grounds of appeal were first formulated, when counsel had had time to reflect over the appropriateness of the summing-up, the present ground of appeal was not raised. It was the Court of Appeal, on hearing the renewed application for leave to appeal, that raised the present issue for the first time. Having heard full argument on this ground of appeal, and having considered the direction given to the jury as to the mental elements and the summary of the expert evidence called by the defence, we have concluded that these convictions were safe. The jury were well aware of the relevance of the defence's evidence and its implications. It follows that the appeal is dismissed.
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