England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
HH JUDGE DAVID CLARKE QC
T973512

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2009

Lord Justice Thomas:

1. On 1 December 1998 at the Crown Court at Liverpool before His Honour Judge David Clarke, the Recorder of Liverpool QC (as he then was), the appellant was convicted of the murder of Nicole Goodwin on 13 July 1997 and sentenced to life imprisonment with a recommended minimum term of 10 years. He appeals against his conviction for murder by leave of the Full Court given in September 2008 on the basis of fresh medical evidence. It is not in dispute that for the purposes of s.23 of the Criminal Appeal Act 1968 there is fresh evidence, that evidence is capable of belief and there is a reasonable explanation why it was not called at the time. The sole issue before us is whether, in the light of the test in Pendleton [2001] UKHL 66, that fresh medical evidence might reasonably have affected the decision of the jury to convict and so render the conviction unsafe.

The factual background

2. It is convenient first to set out a brief synopsis of the facts.
3. In 1997 the appellant lived at 6 Buckfast Avenue, Haycock with Michelle Goodwin and her two children, Nathan born on 29 April 1992 and Nicole born on 30 November 1995. Michelle Goodwin was divorced from the children's father, Nigel Goodwin, who lived nearby. The children regularly stayed overnight with him, generally at weekends and on Thursdays. There was support from the grandparents on both sides.

The incident on 13 June 1997

4. On Friday, 13 June 1997, an emergency 999 call was placed by the appellant at 8.46 p.m. in which he reported that Nicole had fallen off a kitchen unit at 6 Buckfast Avenue and was unconscious. The ambulance crew arrived at 8.50 p.m. and found Nicole lying on the living room floor deeply unconscious. She was taken to hospital accompanied by Michelle Goodwin. She told the staff at the hospital that Nicole was on a work surface in the kitchen from where she had fallen onto a ceramic tiled floor. In subsequent interviews with the police both the appellant and Michelle Goodwin maintained they were present when she fell, although part of the tape-recorded 999 call contained passages that indicated that Michelle Goodwin was not present when the fall occurred. Before referring to the evidence of the injuries Nicole sustained, which are relevant to the circumstances in which of Nicole died on 13 July 1997, it is necessary to record that the appellant was charged in relation to her fall on 13 June 1997 with inflicting grievous bodily harm with intent on Nicole, contrary to s.18 of the Offences against the Person Act 1861. That charge was tried jointly with the charge of murder, but he was acquitted on that charge.
5. As regards Nicole's injuries sustained on 13 June 1997 and the treatment of these injuries, she made a steady recovery. X-rays were taken but were reported as normal. Although Dr Sills, the Consultant Paediatrician in charge of her, had some concerns, he allowed her to be discharged home on Sunday, 15 June. She spent the Sunday with her father, Nigel Goodwin. His evidence, and that of his parents, was that Nicole was not her usual self. When she was collected by Michelle on Monday 16 June her condition was such that she was taken to hospital. After her readmission, a CT scan was taken on 17 June and a linear fracture of the occiput was shown. Professor Carty, the well-known paediatric radiologist, gave evidence at trial that on re-examination of the x-rays of 13 June, evidence of the fracture could be seen. In addition to the discovery of the fracture, gross retinal haemorrhages to the left eye were diagnosed by Dr Sills and confirmed by an eye specialist. It was as a result of this diagnosis and Dr Sills' suspicions that the retinal haemorrhages had been caused by shaking that the police were contacted and the appellant and Michelle Goodwin interviewed.
6. Nicole was kept in hospital until Thursday, 26 June when she was discharged. On the weekend of 27-29 June she was with her father, Nigel Goodwin, but over the weekend of 4-6 July was with her mother, Michelle Goodwin, and the appellant. On 7 July 1997 the appellant and Michelle moved to 171 New Street, St Helen's. On 10 July she was seen by Dr Sills who was very pleased with her progress.

The events surrounding the death of Nicole on 13 July 1997

7. On Saturday, 12 and Sunday, 13 July Nicole was with her father, Nigel Goodwin, and his girlfriend, Gillian Fisher, and from time to time with her paternal grandparents. It had originally been intended that Nicole stay with her father for the night of Sunday, 13 July but she was brought back to Michelle Goodwin on the Sunday evening because they wished to go out. At about 6 p.m. Nicole was taken to the house at 171 New Street to which the appellant and Michelle Goodwin had moved.
8. It is not in dispute that she arrived back at about 6 p.m. At 7.28 p.m., a 999 call was made in which Michelle Goodwin said that she had dropped her child, that the child was unconscious and asked for the ambulance to attend. When the ambulance men arrived shortly thereafter, Nicole was lying on the worktop in the kitchen unconscious. She was taken to hospital. On arrival there was no heartbeat, resuscitation was attempted but Nicole was certified dead at about 8.10 or 8.15 p.m. Dr Sills arrived as these attempts were being made.
9. On 14 July the appellant and Michelle Goodwin were interviewed by the police. On 15 July they were both arrested on suspicion of murder and the appellant was re-interviewed. In the accounts given in these interviews both essentially maintained that Nicole had been dropped accidentally whilst Michelle was present. During the course of 15 July, the police discovered a timed till receipt which placed Michelle Goodwin at a grocery shop at 7.24 p.m., about four minutes before the 999 call.

The appellant's confessions

10. In an interview at 7.44 p.m. on 15 July, following a consultation with his then solicitor, the appellant gave an account of what had happened. After her return home Nicole had been put to bed by her mother but she had awoken, probably when the door shut when her mother went to the shops. He had tried to quieten her but she would not stop crying. He had then lost control and had shaken her and thumped her on the head. He had punched her with his fist. He had not meant to, he just went blank. He said he had picked her up by her arms, held her round the ribs and shaken her. He had made up a false story of what had happened which he discussed with Michelle on their way to hospital.
11. He was then charged with murder at 8.39 p.m. that evening.
12. On 16 July the appellant changed his solicitor. In the course of a further interview he said that he knew he would end up admitting the killing on 13 July, but he could not admit it in front of Michelle. He maintained in that interview the account in relation to the injuries sustained on 13 June which he said was the result of a fall from the worktop in the kitchen at 6 Buckfast Avenue.
13. The appellant retracted his confession on 9 September 1997. In November 1997 the appellant wrote letters whilst on remand in prison indicating his responsibility for the actions that led to the death of Nicole.

The evidence at the trial

14. At his trial in November 1998, the Crown relied on five matters in relation to the charge of murder:

i) The timing. The appellant was alone with Nicole in the period immediately preceding the 999 call.

ii) The medical evidence. The essential feature of that evidence was a fresh fracture found after death, external and internal bruises and haemorrhages of the eyes and bleeding inside the skull which was said to evidence shaking.

iii) The evidence of Nigel Goodwin and the grandparents. Their evidence was that, apart from being tired at the end of the day when she was returned to New Street at about 6 p.m., Nicole was uninjured. It is important to point out that she did in fact have a greenstick fracture to the arm which doctors thought would cause Nicole to recoil or wince if touched, but no-one noticed this.

iv) The lies told by the appellant prior to his confessions.

v) The appellant's own confession to which we have referred.

15. The medical evidence at trial was principally that of Dr Tapp, a Home Office pathologist called by the prosecution, and Dr Williams, also a Home Office pathologist who was called on behalf of the appellant. As the judge pointed out to the jury, the medical and pathological evidence was relevant first, to whether the injuries were accidental or deliberate and second, as to whether they could have been sustained before Nicole was brought back to be in the appellant's custody at 6 p.m.
16. There was also evidence from Dr Sills who saw Nicole as resuscitation was being attempted; he expressed the view that if there was nothing apparently wrong when she returned at 6 p.m. apart from being tired and cranky, it suggested that the fatal injury occurred between then and the ambulance arriving.
17. The significant medical evidence was that of Dr Tapp which can be summarised as follows:

i) There were fresh bruises which, in his view, had been sustained within 48 hours of death. There were marks and bruises on the ears; it looked as if the ears had been gripped.

ii) Of particular importance was a bruise at the back of the head; some of the bruise was fresh and it overlay the site of two fractures.

iii) The linear fracture of the occiput which had occurred on 13 June was accompanied by a fresh fracture which was no more than 4 to 5 days old. Dr Tapp drew that new fracture in blue on a photograph showing it extending in a triangular shape, with one of the bases of the triangle being the line of the linear fracture sustained on 13 June being shown in pink.

iv) There were fresh haemorrhages in the eyes; the presence of haemosiderin indicated that these were 3 to 4 days prior to death.

v) Inside the skull there was blood and heavily stained cerebrospinal fluid which gushed out under pressure; it was bright red. There were fresh haemorrhages in the meninges in the brain – subdural and subarachnoid, but no intracerebral haemorrhage. There were small amounts of haemosiderin. In addition to the fresh haemorrhages, the presence of haemosiderin indicated that there had been damage some time before due to shaking. The blood was a mixture of fresh and older blood; it could not be suggested that the blood which came gushing out was so old as to be associated with the haemosiderin.

vi) He considered that the cause of death was blunt head injury and shaking. Although the blunt head injury could be an accident, he did not think that was likely given the site of the fracture, but he could not exclude it completely.

vii) As to shaking, it resulted in disruption to the nerve fibres of the brain which killed the child. The fact that the blood which gushed out was bright red indicated it was recent; Nicole had not been bleeding there two hours before.

viii) It was not possible for the injury to have been sustained before 6 p.m. on 13 July. Although there was evidence that Nicole was tired and cranky, these were not symptoms he associated with bleeding inside the brain. The bleeding inside the brain would have caused her to lose consciousness almost immediately on being shaken, as it was the disruption of the nerve fibres in the brain that caused unconsciousness.

ix) It was not possible on the appellant's account of Nicole waking up when Michelle Goodwin left the house for the injury to have been sustained prior to that time, as she would have been unconscious; she could not have cried out when the door slammed.

18. Dr Williams questioned whether Nicole had died from being shaken; he did not subscribe to the view that some of the matters relied on showed that this was a cause of death. He considered that death occurred as a result of head injuries which could have been caused by a blow to the head. He accepted that the injuries to the brain could have been caused by the blow to the back of the head. He could not put a time on when this had happened. He gave evidence, without apparently going into detail, that there could be a lucid interval after the injury; he disagreed with Dr Tapp that the severity of the injury would have resulted in immediate unconsciousness.
19. The appellant gave evidence at trial. He said that on 13 July he had got back from friends at about 5.30 p.m. As he was worn out and tired, he went to bed. He heard the children arrive back and got up and went downstairs. Nicole was tired and cranky and then was put to bed. When Michelle Goodwin went to the shop with Nathan and the door banged, he heard Nicole crying. He ran upstairs and picked her up to comfort her as she was crying loudly. He felt light headed and thought he would pass out. He put her down quickly on the cot. She was then quiet. He picked her up and she was all floppy then. He threw or placed her on the bed to one side. He did not throw her hard, but panicked and ran out of the door to get a cloth. He heard a thud, turned and saw her on her back on the floor at the side of the bed. He picked her up, threw her on the bed and got a cloth from the bathroom. He wiped her face and called her name, but there was no response. He then picked her up and ran downstairs. She gave a cry and started to vomit. He cleaned her mouth out. Michelle Goodwin then came home. He told her he had dropped Nicole. Michelle Goodwin then phoned the ambulance. He explained in detail why he had confessed on the basis of the legal advice he said he had been given. He was cross examined extensively on his account of events and his confession.

The nature of the fresh medical evidence

20. As we have set out, the fresh evidence relied on in the appeal was solely medical evidence. It was undisputed that Nicole had died from the complications of head injury. She had received blunt trauma injuries within hours of death and this was the cause of her death. All the experts agreed that the findings viewed as a whole were in keeping with non accidental injury, save that one expert was of the view that it was not possible to tell whether they were or were not accidental. The fresh evidence related to the timing and nature of that trauma, as to whether she had been shaken and, if so, whether that could have caused or contributed to her death.
21. It was contended by Mr Michael Bowes QC on behalf of the appellant that the new evidence undermined, in the detailed respects which we set out below, the evidence given at trial by the pathologist called on behalf of the Crown and other medical evidence. When properly analysed it also cast doubt upon the confession made by the appellant and pointed to there being an issue as to whether the injuries had occurred prior to 6 p.m. and thus whilst Nicole was in the custody of her father and his family. The only aspects of the Crown's case which Mr Bowes QC accepted the new evidence did not affect were the reliance on the appellant's lies and the fact that he was with her in the period after 6 p.m..
22. There was a substantial body of expert evidence before the court. We heard evidence from the following experts.

i) Dr R S James, a Home Office pathologist and a senior lecturer in forensic pathology at the University of Wales College of Medicine, Cardiff. He had prepared the initial report which formed the basis of the appeal.

ii) Dr Rogers, a Home Office pathologist, based in North West England. He had reviewed Dr James' report and was called by the Crown.

iii) Dr Waney Squier, a Consultant and clinical lecturer at the Department of Neuropathology at the John Radcliffe Hospital, Oxford. She had provided a report and was called on behalf of the appellant.

iv) Dr du Plessis, a Consultant Neuropathologist at the Salford Royal Hospital and the Greater Manchester Neurosciences Centre. He commented on Dr Waney Squier's report and was called by the Crown

v) Mr Peter Richards, Consultant Neurosurgeon at the John Radcliffe Hospital Oxford. He provided a report and was called by the Crown.

Discussion between these experts prior to the hearing of the appeal on the direction of the court had significantly narrowed the issues. We would wish to observe that in respect of the evidence of each, it was given with very considerable professionalism and in a completely impartial and detached manner.

23. There were also before us reports and agreed statements of Dr McCarthy, a Consultant Histopathologist, and Dr R E Bonshek, a Consultant Ophthalmic Pathologist, and reports of Dr Neil Stoodley, a Consultant Neuroradiologist and Dr George Kokai, a Consultant Paediatric Pathologist at Alder Hey and a Senior Lecturer at Liverpool University and also an agreed statement from them. It was in the light of the agreement those experts reached that it was not necessary for us to hear evidence from them.
24. In the light of the way the experts had approached their task, there was a very substantial measure of agreement as to the nature of the fresh evidence, although there was some difference as to its significance. Before we turn to describe that evidence it is, we think, important in fairness to Dr Tapp to point out that there has been a significant advance in medical science since the time he conducted his post mortem examination in 1997. There is a considerable difference in approach. Whereas it was common at the time Dr Tapp conducted his post mortem for him to conduct that post mortem on his own and for his report to be reviewed by a further pathologist, in this case by Dr Williams, the practice these days is for the pathologist to consult experts of the kind who gave evidence before us. This enables a much more precise and expert determination to be made than was possible in the circumstances prevailing in 1997.
25. We will first set out the evidence, both undisputed and disputed, and then our conclusions as to whether, applying the test in Pendleton, the fresh evidence might reasonably have affected the decision of the jury.

The undisputed evidence

26. The undisputed new evidence can be summarised as follows:

i) The evidence of pathology both general and ophthalmic did not enable the time of the fatal blunt trauma injuries to be stated with precision; it could not be said that the injuries had occurred after 6 p.m., though they had occurred within hours of death. It is now not possible to say that the external appearances of the bruises meant that they were less than 48 hours old. Nor did the appearance of red blood cells without associated iron pigment in macrophages allow a time to be placed on the injury other than to say it had occurred within the day or two previous to death.

ii) The bruises to the area around the ears were likely to have been caused by a severe blow rather than by someone holding the ears and shaking Nicole. These were purple. Although it was not possible to age these accurately, they were not more than a day or so old, as they were not yellow. These were blunt injuries.

iii) The bruise at the back of the head was of an age and shape that it was unlikely to have been caused by a fist shortly before death; it was not fresh, as it showed signs of healing.

iv) It was recognised that fractures to the occipital bone could occur accidentally; the view of Dr Tapp was based on a study by CJ Hobbs: Head Injuries, ABC of Child Abuse (BMJ Vol 298, 29 April 1989), but more recent research showed that occipital fractures are common in accidents.

v) There was now much more understanding as to the effect of shaking a baby. It was accepted that Dr Tapp was wrong in saying that this definitely brought about the death. The consultant ophthalmic pathologists agreed that blunt head injury was the more likely cause of the final injury than shaking. There was some dispute about this to which we refer at paragraphs 40 to 44 below.

The disputed evidence

27. There was disputed evidence in relation to three questions:

i) Was there was an interval between the fatal injury and loss of consciousness – the lucid interval issue?

ii) Was there evidence of shaking having a fatal effect?

iii) Was there a new fracture?

(i) Was there an interval between the injury and loss of consciousness?

28. The most important aspect of the evidence was the issue as to whether there was the real possibility of an interval between the infliction of the fatal injury and Nicole losing consciousness; this was referred to as "the lucid interval".
29. Both Dr James and Dr Waney Squier made clear that on the pathology evidence, though the blunt trauma injuries to the head which had caused death had occurred within hours of death, it was not possible to be more precise. It could not be said that the injuries occurred after 6 p.m. This was not disputed. There were cases which showed that there could be an interval between the fatal injury and severe distress or loss of consciousness. Although it was not possible for Nicole to have been absolutely normal if she had sustained the fatal injury before 6 p.m., the cases showed that a child could have sustained a severe brain injury, but appeared only to be lethargic and irritable. As Nicole had been reported to be tired and cranky on her return, the state of medical science had now to admit of the possibility that the fatal injuries had occurred before 6 p.m.
30. The contention was advanced on the basis of medical literature. The Crown in response contended that the cases in the literature were rare. In the circumstances of this case, there was no possibility of such an interval as the pain from which Nicole must have been suffering would have been evident. The Crown also relied on evidence relating to the nature of the subdural haemorrhage as supporting the conclusion that there was no lucid interval.

(a) The medical literature

31. We were taken by Dr James and Dr Waney Squier to medical literature which set out a small number of cases where there had been an interval between injury and loss of consciousness. The principal materials relied upon were a letter published in the American Journal of Forensic Medical Pathology in March 2002 by Dr Robert W Huntingdon and the following papers: Arbogast, Margulies and Christian: Initial Neurological Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries ...Paediatrics, 2005); Graham, Smith et al: Trials and Tribulations of using ß-amyloid precursor protein immunohistochemistry to evaluate traumatic brain injury in adults (Forensic Science International, 2004); Gilliland: Interval duration between injury and severe symptoms in non-accidental head trauma in infants and young children (Journal of Forensic Sciences (1998); Sauvageau, Bourgault and Racette: Cerebral traumatism with a playground rocking toy mimicking shaken baby syndrome (J. Forensic Science vol 53); Plunkett: Fatal paediatric head injuries caused by short-distance falls (American Journal of Forensic Medicine and Pathology vol. 22 (1) 2001); Denton and Mileusnic: Delayed sudden death in an infant following an accidental fall (American Journal of Forensic Medicine and Pathology vol. 24 (4) 2003).
32. Dr James relied in particular on the case described in the letter by Huntingdon where the 13 month old child who died of a subdural haemorrhage many hours later was described on admission to hospital as being irritable and sleepy, clingy and fussy, but being interactive and responsive. He pointed to the fact that Nicole had a fracture of the arm which no one had noticed. He also pointed to the case reported by Graham, Smith et al where a child had suffered a minor head injury but was lucid until experiencing a series of seizures from which he died.
33. Dr James accepted that it was easier to see how the injury occurred in the period after 6 p.m. and there was other evidence that might allow that inference to be drawn. The cases where there was an interval were rare and the common reaction to a fractured skull would be severe pain. Indeed the cases set out in the paper by Plunkett showed that where there was more than a minimal fall, the interval was only 5-10 minutes. However, the definitive evidence of Dr Tapp that the injury must have occurred immediately prior to unconsciousness could no longer be accepted in the light of the literature. He emphasised however that the evidence of clinicians was very important.

(b) The pain from which Nicole would have been suffering

34. Mr Richards, a clinician who has specialised in neurosurgery of children for many years, accepted that there could be very rare cases where there could be a lucid interval. However if a child has suffered an injury to the head which would cause death, the child would be in acute pain from a very short time after the injury had been sustained. It was inconceivable that the injuries sustained by Nicole would not have caused severe pain and other signs of distress that would have been obvious to those looking after her; furthermore from the moment Nicole suffered a subarachnoid haemorrhage there would have been severe pain and there would only be a minimal chance that she would not be unconscious. If she had suffered such injuries before 6 p.m. and remained conscious, then she would have been in severe pain and very distressed on her return home. The cases where there had been the lucid intervals described in the literature to which we have referred were very different; each depended on the accuracy of the recollection and description of the person at the first point of examination. He considered strange the single case referred to in the paper by Denton and Mileusnic where a 9 month old child was reported to have fallen 30 inches from a bed striking the back of his head on a concrete floor; he was not taken to hospital or to a doctor as he appeared to have recovered after initial crying but died 72 hours later; a post-mortem revealed a linear fracture and haemorrhaging.

(c) The extent of the subdural bleeding

35. A space occupying lesion, such as an expanding subdural haematoma, can explain a delayed reaction to a fatal blunt injury. The Crown contended that the evidence showed that there was no space occupying lesion and hence there was another independent basis for showing there was no lucid interval.
36. As we have set out at paragraph 17.vii) above, Dr Tapp's evidence was that when he conducted the post mortem, the blood which gushed out was bright red, indicating that it had not been there very long. His report also described a large amount of blood stained fluid. He also described a residual liquid acute subdural haemorrhage as present over both cerebral hemispheres.
37. Unfortunately Dr Tapp did not provide further details. In May 2008, Dr du Plessis asked Dr Tapp about the nature of the bleed. He recorded that he had been told by Dr Tapp that there was a relatively small volume of subdural collection which was unlikely to be space occupying. Dr Tapp did take photographs. These were seen by Dr du Plessis who concluded that they revealed a small subdural blood clot in the right parieto-occipital region against a background of extensive bilateral thin film blood staining of the dura and brain surface on both sides extending onto the skull base.
38. Dr du Plessis considered the description given by Dr Tapp and what he had observed from the photographs ruled out a space occupying lesion as a mechanism which could give rise to a lucid interval after an injury sustained before Nicole was returned to the appellant and her mother at 6 p.m. He accepted, however, that clinical evidence was the more important in assessing the delayed reaction.
39. After the hearing before us, Dr Tapp produced his notes; the experts were asked to express further views on the subdural bleeding and its relevance to the lucid interval issue. Dr du Plessis gave further reasons for his maintaining the view he had expressed. Dr Rodgers and Mr Peter Richards both expressed the view that in the light of the apparent scale of the subdural haemorrhage, it was unlikely there had been any lucid interval. Dr James did not think it was now possible in the absence of proper contemporaneous evidence to express a view on the nature and size of the subdural haemorrhage. He did not place a great deal of significance in relation to disagreement on this lucid interval issue, as the pathology evidence could not tie down the timing of the fatal injury to a period other than one measured in hours. Dr Waney Squier commented that all that could be said was that there was no evidence of an absence of a space occupying subdural haemorrhage; there was in any event no evidence to show that a space occupying subdural haemorrhage was necessary or even a frequent prerequisite to a lucid interval in infants.

(ii) Was there evidence of shaking having a fatal effect?

40. It was the evidence of Dr James that in the 1990s there was a widely held view that severe shaking caused subdural haemorrhage which would result in unconsciousness. There were some who questioned the effect of shaking at that time, but now there was a much more cautious approach; he relied on the analysis by Leestma. It was also thought at the time, as Dr Tapp had said in his evidence, that shaking caused damaged to the nerve fibres of the brain – diffuse axonal injury. This was no longer a tenable view. Nor was it any longer tenable to state that retinal haemorrhages were definitely caused by shaking; it would be necessary to be more circumspect about the cause of the retinal haemorrhages.
41. If Nicole had been shaken violently, then Dr James would have expected to see bruises where she had been gripped and tears to the neck muscles, but he could not exclude the possibility of shaking causing or contributing to the death. Dr Waney Squier's evidence was to the same effect. Although she considered it was clear that Nicole had suffered a severe blunt injury which would have been fatal, there was none of the evidence such as grip marks, bruises, neck injuries or rib fractures normally associated with shaking a child of Nicole's age.
42. Dr du Plessis disagreed with this evidence; he considered that a child of Nicole's age could be shaken by gripping the clothing and that shaking in this way sustained for sufficient time could cause a subdural haemorrhage and retinal bleeds. He supported his views by reference to work by Roth using computer-generated biomechanical modelling based on finite element analysis. Dr Waney Squier considered that it was not possible to rely on such computer modelling without any real life data.
43. In Dr du Plessis's view the thin film non space occupying and widely distributed subdural bleed (to which we have referred in paragraph 37) was typically associated with non accidental head injury consequent on shaking or some form of impact. Although Dr Waney Squier agreed with the description given by Dr du Plessis, she expressed the view that whilst blunt trauma might be a cause of the thin film in the subdural haemorrhage, it was more common to see a thicker film. It was not possible to say from the evidence whether the injury was accidental or inflicted.
44. It is not, we think necessary to set out further details of the evidence given nor to traverse again the issues considered by this court in R v Harris [2005] EWCA Crim 1980. For reasons we explain at paragraph 48, it is sufficient to say that Dr Waney Squier remained of the very firmly expressed view that there was no merit in the hypothesis that subdural bleeding could be caused by shaking and the evidence to which Dr du Plessis referred was not in any way convincing, although she accepted that this was not the majority view.

(iii) Was there a new fracture?

45. It seems clear from the report of Dr Williams and the summing up that there was no dispute at trial that there was a fresh fracture as drawn in blue by Dr Tapp along the triangular shape lines in the manner we described at paragraph 17.iii) above.
46. Dr James considered that Dr Tapp might have been wrong in his evidence summarised at paragraph 17.iii) that there was a new fracture of the occiput some 4-5 days old – shown on an image as a blue triangular shape, one of the bases of which was part of the linear fracture which was agreed to be old. He considered that the histological appearances were inconclusive and that he was not convinced he could diagnose a fresh fracture. He supported his view by a comparison of the evidence of Dr Tapp and a report of Professor Carty which had not mentioned the fresh fracture, but which had commented that the CT scan of 17 June and the post mortem x-rays were consistent; Professor Carty had referred to a depressed element being present on the CT scan of 17 June. This could have been a crack, but he could not be more definite in his view as the x-rays had been destroyed.
47. The evidence of Dr Kokai as set out in his agreed report was that the fracture of the occipital bone had two different ages; one which was healing which correlated with the June incident and one which was more recent and consistent with the July incident. He considered that these findings were confirmed by Professor Carty's evidence. Dr James was asked about the skull blocks that had been the subject of a histological investigation by Dr Kokai who reported that the fifth of those blocks revealed a fresh fracture. He accepted that there were two different injuries. One of these might be a fresh fracture, but he was not convinced by the histology. Dr James said that what Dr Kokai described might be accommodated with his view that the bruises to the rear of the head were about a week old.

Would the new medical evidence have made a difference?

(i) Shaking

48. We accept that the evidence of Dr Tapp that the subdural haemorrhage was caused by shaking can no longer be accepted as undisputed. If there had been no other cause of death than injuries that were said to have resulted from shaking, it might well have been the case that the new evidence in relation to shaking and the evidence in relation to the imprecision of the original pathology might have made a difference to the verdict the jury would have returned. However it is clear that the death was caused by blunt trauma to the head.
49. What therefore is of significance is the evidence in relation to the blunt trauma and the evidence in relation to the possibility of a lucid interval.

(ii) The blunt trauma injury to the head.

50. Mr Bowes QC submitted that it was significant that in his confession, the appellant had referred to striking Nicole on the back of the head. Thus before the jury, on Dr Tapp's evidence, there had been strong support for the fact that the confession was true because of the evidence Dr Tapp gave in relation to the blow to the back of the head. That position was now altered in the light of the undisputed new evidence that the bruising there was not fresh as Dr Tapp had said.
51. We conclude that although there is some evidence to suggest that there was no new fracture, there was strong evidence, particularly the unchallenged evidence of Dr Kokai, that there was a new fracture. The evidence before us showed the single blow to the back of the head was not consistent, by reason of its age and shape, with a blow being struck on 13 July. However, we do not consider that whether or not there was a new fracture was of central significance.
52. What was of real importance was Dr James' evidence to us that there was a severe blunt injury to the area around the ears. Although it was not possible to be definite as to the cause, as there were bruises on both sides, blows were more likely. The evidence of Mr Richards was that this must have caused immense pain. Thus, although the confession evidence is not consistent entirely with the pathological evidence, it is clear that Nicole did receive a severe blunt injury to the area around the ears. We have little doubt that a jury would accept the evidence that this must have caused her immense pain, as this was the only evidence from a clinician. This strongly suggests an assault to the child's head after 6 p.m. consistent with the appellant's confession.

(iii) Nicole's condition on her return to the appellant's custody

53. As we have set out at paragraphs 31-33 above, there are instances of cases where a fatal injury is sustained and a child does not immediately become unconsciousness and has a lucid interval. An examination of each of the cases set out in the literature produced to us shows that there are plainly a tiny number of such cases which happen in certain circumstances. The significance of each case depends on a detailed consideration of the circumstances and of the accuracy of what is reported.
54. It was, however, common ground that a child will not be normal and will exhibit signs that show this. The evidence of Dr James was based on a study of the papers which in fact go no further than we have described; he very properly accepted that he would have to defer to a clinician in relation to pain and other symptoms of the trauma.
55. As regards the signs which are accepted as inevitable, as we have set out at paragraph 34, the evidence of Mr Richards was that if Nicole had suffered a severe blow to the head prior to 6 p.m. on 13 July, she would not merely have been cranky or not herself, but, if conscious, showed signs of acute pain and distress as a result of the injuries that she had received. Any jury would have attached considerable weight to the fact that this was the only evidence from a clinician. We have, in reaching this conclusion, taken into account the submissions of Mr Bowes QC that on the evidence no-one on the paternal side of Nicole's family seems to have recognised the greenstick fracture (to which we referred at paragraph 14.iii)) but it seems to us that the pain and distress that would have been caused as a result of a fatal blow to the head would have been of an altogether different order. We have not in considering the issue of a lucid interval attached any significance to the evidence in relation to the subdural haemorrhage set out at paragraphs 35 to 39; it is not relied upon by those called on behalf of the appellant and is too uncertain to assist the Crown in the contention that it makes the case for a lucid interval impossible to sustain.
56. It is important to point out, though this issue did not have the significance at the trial that it assumed on the appeal, that as we have set out Dr Williams (at paragraph 18) gave evidence that it was not medically possible to say how long before death a fatal injury was sustained; there was sometimes a "lucid interval" after an injury. It was necessary to be very cautious about saying Nicole sustained the fatal injury shortly before collapsing.
57. The jury also had to consider at the trial the case made against Nicole's paternal family who had charge of her prior to 6 p.m. on 13 July. The paternal family was adamant in the evidence that they gave that no such injury occurred. The jury had the opportunity of considering that evidence and plainly rejected any suggestion that the injury had occurred prior to 6 p.m. We accept, of course, that Dr Tapp's evidence would strongly have militated against the defence case, but on the new evidence before us a jury would conclude that it was clear that if Nicole had suffered the fatal injuries prior to 6 p.m. she would not merely have been cranky but also in great pain. There was no evidence of distress of that kind and therefore, although the pathological evidence before us was different, it would have made no material difference to a finding that the fatal injuries were not caused before 6 p.m.

(iv) Lies and the confession

Conclusion

58. We consider that the confession evidence was very strong. Shortly after arrest the appellant confessed separately in the presence of solicitors from two different firms. The first of those solicitors was called by the Crown at trial and gave evidence strongly rebutting the appellant's explanation as to why he had confessed. The appellant did not repudiate his confession when interviewed in the presence of the second solicitor. Only in September 1997 did the appellant repudiate his confession. Subsequent to that, however, he wrote a series of letters from prison in which he clearly accepted that he was responsible for inflicting the fatal injuries on Nicole. It is also highly significant that, in his initial interviews the appellant had maintained the false account that he and Michelle had been together at home at the time of Nicole's collapse, but when shown the evidence of the shop receipt proving that he had been alone with Nicole at the time, he confessed, having been caught out in a lie. Moreover, there was never any suggestion that he had tailored his confession to fit with the state of the medical evidence as made known to him. In our judgment, this is very compelling evidence and must have appeared so to any jury. The appellant never provided any satisfactory explanation for it.
59. Although the new evidence that has been placed before us does raise a different mechanism of causation, there is nothing in that new evidence which would lead us to conclude that if the new evidence had been before the jury at the trial they might have come to a different verdict. Whilst there is now evidence of a different mechanism of causation in terms of detail, this difference does not undermine the essential force and thrust of the appellant's repeated confessions. In those circumstances, the appeal must be dismissed as we are satisfied that the safety of the conviction is not impugned.