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Cite as: [2015] IECA 131
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 131
[2012/272] The President Sheehan J. Edwards J.
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT AND
PHILIP DOYLE APPELLANT JUDGMENT of the Court delivered by the President on 18th June 2015 Conviction and Background Facts 2. Baby Ross was born by Caesarean Section on 10th December 2004 to Leona Murphy at Wexford General Hospital. She is from Gorey, County Wexford and she had met the appellant in September 2004 and began a relationship. He was not the father of her baby. In January 2005, after staying with her parents at their home for a period after Ross’s birth, Leona and the appellant moved in together with Ross to a house in Gorey. 3. The appellant sought to have his name added to Ross’ Birth Certificate, but Ms. Murphy would not consent to that. She gave evidence at trial that the appellant and Ross seemed to get on well together, although she did express some concern that the appellant would ‘jerk’ Ross if he was sleeping while he fed, and that she did not see the point of that and had asked him to refrain. 4. The baby was generally healthy, but it appears that in late March 2005, he had been suffering from a rash on his upper body and neck that came and went. An unusual incident occurred on Thursday 31st March 2005 shortly after the appellant had put the baby to bed at about 8pm. Mr. Doyle volunteered and went up to check Ross and was gone for some minutes when he called down to Leona to come up. He told her the baby had got sick and had now gone limp and apparently lifeless. The two adults brought the baby to the bathroom and splashed some water over his head and neck, which brought him around and back to normal. 5. Although Leona was greatly relieved by the fact that Ross had revived so quickly and so well, she was concerned at what had happened and as to the cause. She rang her mother and also spoke to her sister and their advice was to consult the out of hours doctor service, Caredoc. The appellant and Leona brought Ross to the doctor, who was concerned enough to recommend that they should proceed to Wexford General Hospital A&E Department. When they got there, the medical staff examined Ross and decided to admit him and he remained in hospital until Sunday 3rd April 2005. 6. Leona and Phillip and members of her family attended at the hospital over the weekend and some of them stayed overnight to be with the baby. He was kept under observation by the medical staff and given various tests and was seen and examined regularly by the doctors and nurses, but they did not find anything wrong with him and were happy to discharge him at about 11.00am on Sunday, when the appellant and Leona brought him back to Gorey. 7. Ross behaved normally on Sunday afternoon at home and gave no cause for concern. Members of Leona’s family were around until the early evening. At about 6.00pm, Leona decided to go down the town to get a DVD from the rental shop, leaving Ross at home with the appellant. Soon after she left the house, she changed her mind about going to the rental shop and decided instead to go to her friend’s house because she thought that the friend still had the film that Leona wanted to rent. Because she was not going where she said, she called Philip on his mobile phone but there was no reply on the first two times that she rang and his phone rang out. She was gone some ten minutes or so when she got through on the third occasion, when she discovered alarming news. Philip told her that he had Ross in his arms and that he was lifeless again, the same way he had been on the previous Thursday night. He had not phoned the doctor or an ambulance. Leona made her way home as quickly as possible, which took a little longer because the friend to whom she called said that their car was broken down so she had to get another friend to drive her home. 8. The situation at home was very serious. Despite taking similar measures to what they had done on the previous Thursday, they were unable to get Ross to come round. He was practically lifeless and was apparently having difficulty breathing. Leona phoned for an ambulance and got advice from the Controller while waiting for it to come to the house, which it did very quickly. The doctor had arrived before the ambulance and went with the baby to Wexford General Hospital, where Ross arrived and was admitted at 00.30 hours on Sunday night/Monday morning the 2nd/3rd April 2005. 9. On admission to hospital, Ross was in a very serious condition. The doctors at Wexford noted the various features of the baby’s presentation, which included difficulty breathing; significant generalised bruising; evidence of ocular haemorrhaging and signs of brain damage. Realising the perilous condition of the baby, the medical team in Wexford transferred him to Our Lady’s Hospital for Sick Children, Crumlin in Dublin. Ross arrived at 4.00am and was immediately admitted to Intensive Care. Despite the efforts of the medical and nursing staff, however, he did not recover and died on Tuesday 5th April 2005 in Crumlin Hospital. The Investigation 11. The Gardaí were duly notified and they began an investigation. Suspicion fell on the appellant and he was interviewed under caution. So, also, obviously, was Leona. She initially told the Gardaí that she and the appellant had both been at home with Ross during all of the relevant time. However, she later admitted having gone into town, leaving Ross in the care of the appellant. 12. In the course of a series of interviews, the appellant denied having done anything to harm Ross, or indeed knowing anything about how he might have come to have the traumatic injuries that the post-mortem had demonstrated. Ultimately, however, in the sixth and seventh interviews, Mr. Doyle changed his story. At this stage, he described how he had left Ross on the floor where Leona had placed him and gone to the kitchen to make tea. When he came back into the room a few minutes later he found that Ross had got sick and he picked him up, but again discovered, as he had the previous Thursday night, that Ross was limp and lifeless. He was holding him close to his body and was going to bring him to the kitchen to put water on his head when he tripped on the mat that Ross had been playing on and fell to the ground. Although he did his very best to avoid having the baby strike the floor, and twisted his body in order to do that, he thought that Ross had actually hit his head on the wooden floor. He had not wanted to admit that this had happened because he was afraid he would lose Leona. 13. The Gardaí continued their investigations, which included obtaining expert opinions of the medical witnesses on the new information from Mr. Doyle about the alleged fall. 14. In due course, Mr. Doyle was arrested and charged with the murder of baby Ross Murphy. The Trial 16. The accused was in sole charge of a healthy baby when the baby sustained severe injuries all over his body, externally and internally, including his head and brain and also internal bleeding in his eyes. Those injuries resulted in death. The prosecution’s case is that they were not accidental and cannot be accounted for by natural causes. The expert medical witnesses accepted some suggestions made in cross-examination, and there are points of difference in the analyses of different doctors, but the severity and number and type of injuries are consistent only with inflicted traumatic injury, according to the prosecution. 17. The defence was that the injuries to baby Ross came about in the accident when Philip Doyle was carrying him and tripped and fell. This was an unfortunate accident and the baby sustained the injuries in the fall and in the course of the subsequent events. They included the attempts to resuscitate the baby by Philip Doyle himself and others. Although Philip Doyle did the best he could in what was a somewhat clumsy and amateurish manner, his efforts may have resulted in some of the bruising to Ross. Another cause of injury was the medical treatment, which included insertion of needles and tubes and the insertion of a cannula, could have involved a number of attempts. 18. Obviously, the defence did not have to prove any of these things happened. When this issue has been raised, the onus was on the prosecution to disprove beyond reasonable doubt any such explanations. 19. The defence focused in cross-examination, objection and argument on issues it raised concerning expert medical evidence in criminal trials. They are broached again in this appeal in regard to admissibility of evidence and the judge’s charge. Counsel made particular reference to recent English cases concerning sudden infant deaths and Shaken Baby Syndrome that illustrated the problems and dangers he said such evidence presented. These questions are discussed in the next section. 20. The defence says that the English cases of Shaken Baby Syndrome (Harris [2005]) and of Sudden Infant Death Syndrome (Sally Clarke) offer salutary lessons about medical expert evidence that must make a Court take great care in considering expert medical testimony. The defence says that this general point applies to all the specialist witnesses, and particularly to the treating doctors, who formed the opinion that the baby’s injuries were not of natural cause origin. 21. The following summary of the medical evidence serves as an introduction to the detailed consideration of the grounds of appeal. Treating Doctors’ Evidence 23. Dr. Costigan, a consultant paediatrician practicing in the National Children’s Hospital, Crumlin and Clinical Director for the three Dublin paediatric hospitals, had come in charge of Ross in the early hours of 4th April 2015, and testified as to having observed a bruise on the upper outer pinna of the right ear that was brown, which he said would have been unusual in a non-mobile baby of Ross’ age; a fresh subconjunctival haemorrhage in the left eye; a number of circular bruises on the lower anterior chest and tight anterior abdominal wall as well as five such bruises on Ross’ lower back; fixed and dilated pupils and severe bilateral retinal haemorrhages. He arranged for photographs to be taken, which he testified was standard practice when there was concern about a “non-accidental injury”. He also said that he was of the belief that there was no underlying bleeding tendency. 24. Dr. Costigan also gave evidence of his interaction with the appellant and Ms. Murphy and his resulting notes. He was told that the bruise on the right ear had been present on admission to Wexford General on the Thursday, and that the appellant offered the information that the subjunctival haemorrhage was likewise. Ms. Murphy told Dr. Costigan that she thought the bruise may have been caused by the rocking of Ross’ head and that Ross was inclined to put his finger in his eye. The appellant and Ms. Murphy had given an account of the incident to the effect that Ross during the morning had been shaking his head and had vomited; they had both been out of the room for a very short period, and that when the appellant arrived back Ross was very unwell and not breathing. 25. Dr. Costigan’s evidence, which followed a voir dire hearing to deal with defence objections, is considered below, is the subject of Appeal Grounds 4, 5 and 6. Pathology 27. With regard to the internal injuries, Professor Cassidy gave evidence that there was no skull fracture, but there was flat bruising on the under surface of right side of the scalp, underneath the external bruising described. The brain had started to necrose; where there is a lack of oxygen and brain, it suffers from hypoxic ischemic damage, starts to break down and becomes very soft. There was evidence of bleeding in and around the brain, into the skull cavity over both cerebral hemispheres, termed an extensive subarachnoid haemorrhage. In the eyes, small scleral haemorrhages were noted. There was subdural haemorrhage around the entire spinal cord, which had run down the canal “almost to the bottom area of the child within the spinal canal” from the brain. The abdominal and chest bruising was extensive and very deep; on the abdomen it went through four layers of the baby’s body - through the under-surface of the skin, through the lining of the abdominal cavity and into the soft tissue of that cavity. There was also deep bruising on the left buttock, on the right shoulder and in the armpit area. 28. Professor Cassidy’s conclusion was that Ross had died from head trauma. She stated that the external bruising and the extent of the internal trauma were not suggestive of the single impact as provided for in the appellant’s account. 29. Professor Michael Farrell gave evidence of the extent of the baby’s brain injury. He testified that it was a very severe injury. The haemorrhage was “everywhere, essentially.” Professor Farrell declined in evidence-in-chief to speculate on the cause of death. He had not examined the scalp or the skull, and so his evidence was limited to brain injury. 30. In his statement, Professor Farrell said “It is entirely possible that the injuries could have occurred following a fall in an adult’s arms, in which the rate of acceleration to the ground would have been that of an adult, rather than a child.” In cross-examination, he stood over that proposition, but his evidence was that as severe damage could be caused by acceleration and deceleration as could be caused by impact and that it was uncontested, that there was a “severe fatal head injury.” 31. In cross-examination, Professor Cassidy was questioned on the findings of Professor Farrell. She agreed that he was dealing only with brain injuries as opposed to external injuries. She agreed that the account of the fall could not be discounted, although it was unusual, and that she could not determine the exact mechanism of causation from the examination of the brain alone. 32. She was also questioned on the effects of medical treatment on Ross and whether that could have left the type and degree of bruising found on his body. She gave evidence that the bruising on the forehead was “highly unlikely” to have been caused by Mr. Doyle placing his hand on the baby’s forehead while attempting mouth-to-mouth resuscitation, and that she had not seen such bruising before, and that research suggests such bruising might only occur around the mouth and forehead area. 33. She was asked about alternative reasons for the extensive abdominal bruising. The defence case was that the bruises could be explained by the account of the fall, panicked subsequent handling and the resulting medical interventions. Ophthalmology 35. Dr. Susan Kennedy, a pathologist who specialises in ocular pathology, gave evidence of her examination of the deceased’s eyes, which revealed “very extensive” retinal haemorrhage, not confined to one part of the eye. She indicated, in the context of Professor Cassidy’s evidence, that the injuries were “highly-suggestive of non-accidental injury”. In cross-examination, the doctor said she had not read Professor Farrell’s report. The defence was critical because she admitted that she did not know of the decision in the English case of R v. Harris. She said that it was highly unlikely that a simple fall from a low height would cause such severe retinal haemorrhages without evidence of a fracture but she could not say “100% that it didn’t occur”. Judge’s Ruling The Appeal
Ground 7: An element of the prosecution’s closing speech Ground 8: The judge’s charge Grounds 9 to 22. 39. The Director submits that the appellant’s arguments are, in effect, an attempt to rerun the case on the facts. The submissions point out it was the appellant’s contention that he and the baby fell together, with the baby in his arms, and that death was caused by trauma resulting from that fall. Counsel for the appellant made it clear in closing that:-
41. The specific grounds of appeal are as follows. 1. Having regard to all the circumstances, the trial was unsatisfactory and the verdict is unsafe. 2. The learned trial judge erred in fact and in law in refusing the various applications made by counsel for the appellant in the course of the trial, and arising from said refusals, the trial was unsatisfactory and the verdict is unsafe. These grounds are entirely general and do not require consideration outside of the specific complaints that are contained in the other grounds. 3. The learned trial judge erred in law in ruling admissible the opinion evidence of Dr. Carson that significant brain damage and bleeding to the brain, without a fracture, was unusual. The trial was unsatisfactory and the verdict is unsafe having regard to the evidence actually given by Dr. Carson to the effect that the trauma alleged by the appellant would “surely” result in a fracture of the skull. This ground is that the trial judge erred in law in ruling that the prosecution were entitled to adduce the opinion evidence of Dr. John Carson that significant brain damage and bleeding to the brain without a fracture was unusual. The doctor felt that in the circumstances of the alleged fall then “surely that degree of trauma would result in a fracture of the skull.” Prof. Farrell’s evidence was that brain damage of the kind he identified happened without skull fracture in some 20% of cases, so there was not a conflict as to the unusual nature of this case. 42. At a voir dire hearing in the absence of the jury concerning the admissibility of Dr. Carson’s proposed evidence, the defence had objected on the basis that Dr. Carson was not appropriately qualified or informed. The judge rejected the submission that because this witness was not a pathologist he was unqualified to give the evidence he proposed to give, and ultimately did give, before the jury in relation to causation. He held that having regard to his professional qualifications and experience, there was no reality in the proposition that Dr. Carson’s opinion evidence was not admissible. 43. The judge cannot be faulted for his decision on this objection. He considered relevant authorities. He carefully assessed the admissibility of the proposed testimony and scrupulously rejected part as being affected by non-medical information. Accordingly, the Court is not disposed to uphold Ground of appeal No. 3.
5. The trial was unsatisfactory and the verdict unsafe given the failure to provide adequate notice of the alleged basis for the opinion evidence of Dr. Costigan; 6. Having regard to the fact that the respondent subsequently agreed to limit the opinion evidence of Dr. Costigan to the effect that the injuries were consistent with non-accidental or abusive injury, and having regard to the fact that Dr. Costigan gave evidence in excess of those terms and clearly conveyed his opinion implicitly, asserting that the injuries causing death were non-accidental or abusive, the trial was unsatisfactory and the verdict unsafe. 44. In relation to his clinical examination Dr. Costigan stated uncontroversially before the jury that he noted:
• a fresh subconjunctival haemorrhage in the left eye; • a number of circular bruises that were approximately 1 centimetre in width, on the lower anterior chest; • the right anterior abdominal wall also had a number of circular bruises; • there were five similar bruises on the lower back; • the pupils of the eyes were fixed and dilated; • there were severe bilateral retinal haemorrhages, in respect of which Dr Costigan commented that although he was not an ophthalmologist even he could see the severity of these haemorrhages. 46. In response to the suggestion in cross-examination that there was no logical or rational basis for the witness’s assertion that he knew whether the injuries were accidental or deliberate, Dr. Costigan referred to articles in learned journals in support of his view, to the effect that one could form a conclusion as a matter of probability that injuries were abusive or non-accidental if a number of symptoms were noted together. Under further cross-examination he stated that he only downloaded the articles in question that very day. The doctor’s testimony was to the effect that his original opinion was based on the clinical evidence he had observed at the time of examining baby Ross and that the articles he was now referring to served to reinforce in his mind the correctness of that opinion. 47. The appellant relied on the English Court of Appeal decisions [R v. Sally Clark [2003] EWCA Crim 1020; and R v. Cannings [2004] 1 WLR 2607,] regarding Professor Sir Roy Meadow and the need for trial judges to assess carefully whether statistical evidence should be admitted and the danger of a miscarriage of justice arising from the incorrect admission of such evidence. 48. The trial judge ruled that Dr. Costigan could give his opinion evidence that Ross was the victim of non-accidental injury, which resulted in his death. The judge also held that the journal references were admissible in evidence but he would nevertheless disallow their use by the prosecution. He said:
50. In the presence of the jury, Counsel for the prosecution asked questions in accordance with an agreement with the defence, eliciting answers that the baby’s injuries were consistent with abusive head trauma. The witness responded to another question with the opinion that non-abusive head trauma resulted in his death. He said that the alleged fall did not account for or explain all the injuries that were observable on the baby and mentioned, by way of addition to the matters that were not explained, the severity of the injuries. 51. Counsel for the defence complained to the trial judge that instead of testifying that the baby’s injuries were consistent with abusive injury, as had been agreed between Counsel, Dr. Costigan gave evidence that in his opinion, death was caused by non-accidental or abusive injury, and that the severity of the injuries was inconsistent with the defence suggestion of a fall. Counsel for the appellant submitted that there would be no problem with opinion evidence to the effect that the injuries were “consistent with an abusive injury” but that the problem arose from the intention of the witness to assert that those injuries were inflicted deliberately. A complication is that the witness actually said “non-abusive” and that was not corrected but it was agreed that he meant the opposite and spoke mistakenly. 52. The trial judge ruled that a witness could not be told what to say; that the witness’s evidence was admissible, and that what had occurred was a hazard of cross-examination. The witness could be recalled if the defence wished. 53. The appellant submits that a party can tell his expert witness that only a limited or qualified opinion is admissible and request that the witness confine his evidence to that, and if the party is not willing to comply with that request, then the party may, and indeed should, decline to call the witness. Having regard to the fact that the evidence was given in direct examination, it was open to the judge to discharge the jury. The defence declined to cross-examine the witness on the subject having regard to the trial judge’s ruling. 54. This Court is satisfied that the judge was correct in holding that the witness was an expert who was qualified to give the opinion he gave. His qualifications and experience amply satisfied the legal requirement. Secondly, the voir dire hearing was the appropriate way to deal with the defence objection to the admissibility of the doctor’s opinion. The judge was correct in ruling that if the witness was to be challenged in cross-examination by reference to other evidence that there was no logical or rational basis for asserting that he knew whether the injuries were accidental or deliberate, he was entitled to say that published material, of which he had become aware subsequent to the formation of his opinion, supported his position. 55. If the prosecution, being aware of them, intended to rely on such materials, they were obviously obliged to furnish them to the defence in advance. However, the appellant does not suggest that the prosecution knew that the doctor was going to look up published material on the very day that he was due to give evidence. When it emerged in evidence given on the voir dire that he had done so, the defence could, if they wished, have sought an adjournment in order to analyse it and to consult and take instructions as they saw fit. That was the advantage of the voir dire hearing. 56. Defence counsel in fact chose to proceed, and did not refer to the published information when he cross-examined the doctor in the presence of the jury. In those circumstances, there cannot be a valid complaint that this episode represented any prejudice or disadvantage to the appellant or that the trial was in any way unsatisfactory on account of it. 57. The judge was also correct in ruling as he did on the final point in regard to Dr. Costigan. Counsel could not order the expert witness to give a precise answer in just one form of words - the witness had sworn to tell the truth, the whole truth and nothing but the truth. The difference between what was agreed between Counsel and what the doctor actually said was slight and insignificant in the circumstances, both in the context of the trial as a whole and of the specific issue that was then being addressed. Moreover, the speaking error made by the witness further mitigated any deviation from script. And besides all that, it was of course open to Counsel to ask to recall the doctor for cross-examination on an area of admissible testimony he had given.
58. There is no basis for criticising the judge for this ruling. His approach was in line with established authority in this jurisdiction adopting R v. Galbraith [1981] 1 W.L.R. 1039.
60. On appeal, the Court held that the evidence of the previous incident was relevant in order to prove the necessary intent on the day of the fatal act, and that there was sufficient evidence for the jury to convict of murder as opposed to manslaughter. In addition to the triad of injuries, and the previous incident which the Crown said was due to the appellant's actions, evidence was found of bruising to the back of the child's head. 61. The Court also held that the acceptability of the medical evidence was a matter for the jury. 62. In the present case, the evidence as to the events on the previous Thursday was relevant as part of the history of the baby's illness and the accused's involvement with him and his mother. It was a matter for the jury to assess the materiality, if any, of that particular evidence in the light of all of the evidence in the case.
63. Counsel said, with reference to Dr. Kennedy’s evidence that it was open to the jury to consider as a material factor in assessing that evidence that she was not aware of the Harris case and its implications for expert evidence. He also said that it was a matter for the jury whether or not certain comments made by the State Pathologist, Professor Cassidy, with reference to the Harris case, were relevant in assessing the medical witnesses. 64. Professor Cassidy had acknowledged under cross-examination being aware of the detail of the judgment in R v. Harris, and had agreed with defence Counsel that it had led to the UK Attorney General issuing advice or guidelines, insisting that experts should not give evidence in respect of matters that were beyond the scope of their expertise; that there should be full disclosure inter partes of relevant documents and information and that there was a need for experts to exercise care in choosing appropriate language in which to express their opinions in circumstances where it had been determined that in a number of cases, experts had expressed certainty in circumstances where they could not really be certain. 65. It would appear that Counsel’s allusion to this aspect of Professor Cassidy’s evidence was more in the way of general comment or background to the specific requisitions that Counsel made. 66. The judge was not sympathetic to these general observations. One of the grounds of appeal is that the judge should have given a general direction to the jury about how they should approach expert medical evidence. The judge did not agree; neither did Counsel for the prosecution. The warning sought related to whether the expert was speaking about matters concerning an area in which he or she had special expertise and knowledge, and Counsel cited the advice given by the English Attorney General following on from the cases that gave rise to widespread concern in that jurisdiction. This is discussed in more detail below. 67. Counsel also made general comments about issues that had arisen, including a possible confusion between the rash that the baby had had and petechial lesions. The fact that the experts were drawing attention to petechial lesions would be lessened in significance as evidence of trauma if it could be shown or if there was a reasonable doubt about the matter that they were in fact more properly thought of as features of a rash. Again, it does not appear that Counsel was here requesting a recharge by the jury on this particular point, but was merely perhaps setting it as background. 68. Counsel then went on to make a number of specific requests for recharge on the topics that are the subject of separate grounds of appeal and will be considered in due course.
69. It is relevant to consider some of the English cases that Counsel submitted are relevant to the issues in this case. R v. Sally Clark [2004] 2 FCR 447 was a tragic case of a miscarriage of justice that happened when a mother was convicted of murder when a second infant died of Sudden Infant Death Syndrome. The conviction was ultimately set aside and the appellant released when evidence of a medical specialist about statistical probability of two such deaths occurring accidentally was utterly discredited, and when it was also discovered that relevant evidence showing that one boy died of natural causes had not been made known. The unfortunate victim never recovered from the disaster that the law inflicted on her. This case provides a salutary illustration of how errors can occur when high standards of professional conduct are not observed and when experts testify with seeming authority outside their fields. The case has little direct relevance but Counsel did challenge the capacity of some of the specialists to testify, as was discussed above. 70. R v. Harris [2006] 1 Crim App R 55, and R v. Henderson [2010] 2 Cr App R 24, are cases of non-accidental head injury, which was formerly known as Shaken Baby Syndrome. This subject has been controversial in recent years and these decisions of the Court of Appeal, Criminal Division in England and Wales represent the ends of a series of cases dealing with this phenomenon. Prior to this decision that covered four appeals, it had been thought by the medical experts that the presence in a case of an infant death of a cluster of three specific pathologies was diagnostic of Shaken Baby Syndrome. Experts gave evidence to that effect and convictions were obtained when juries accepted the opinion testimony. Then a series of studies led by Professor Geddes and known as Geddes I, II and III challenged the hypothesis of the triad of conditions. That is the situation that the Court addressed. In its judgments in the cases, the Court rejected the Geddes unified theory, but it did not uphold the diagnostic authority of the triad. It accepted that the presence of the three conditions was indeed evidence of death resulting from non-accidental head injury, as the Court now preferred to call the phenomenon. 71. The story is summarised by their lordships as follows at paragraphs 56 of of their judgment in Harris, which was delivered by Gage L.J.:
56. At the heart of these appeals, as they were advanced in the notices of appeal and the appellants' skeleton arguments, was a challenge to the accepted hypothesis concerning "Shaken Baby Syndrome" (SBS); or, as we believe it should be more properly called, non-accidental head injury (NAHI). The accepted hypothesis depends on findings of a triad of intracranial injuries consisting of encephalopathy (defined as disease of the brain affecting the brain's function); subdural haemorrhages (SDH); and retinal haemorrhages (RH). For many years the coincidence of these injuries in infants (babies aged between 1 month and 2 years) has been considered to be the hallmark of NAHI. Not all three of the triad of injuries are necessary for NAHI to be diagnosed, but most doctors who gave evidence to us in support of the triad stated that no diagnosis of pure SBS (as contrasted with impact injuries or impact and shaking) could be made without both encephalopathy and subdural haemorrhages. Professor Carol Jenny, a paediatrician and consultant neuro-trauma specialist called by the Crown, went further and said that she would be very cautious about diagnosing SBS in the absence of retinal haemorrhages. In addition, the Crown points to two further factors of circumstantial evidence, namely that the injuries are invariably inflicted by a sole carer in the absence of any witness; and that they are followed by an inadequate history, incompatible with the severity of the injuries. 57. Between 2000 and 2004 a team of distinguished doctors led by Dr Jennian Geddes, a neuropathologist with a speciality in work with children, produced three papers setting out the results of their research into the triad. In the third paper "Geddes III", the team put forward a new hypothesis, "the unified hypothesis", which challenged the supposed infallibility of the triad. It was called the unified hypothesis because it relied on the proposal that there was one unified cause of the three intracranial injuries constituting the triad; that cause was not necessarily trauma. It is important to note that the new hypothesis did not seek to show that the triad was inconsistent with NAHI. It did, however, seek to show that it was not diagnostic. 58. When Geddes III was published it was, and still is, very controversial. It is not overstating the position to say that this paper generated a fierce debate in the medical profession, both nationally and internationally. In the course of the hearing of these appeals we have heard evidence from a number of very distinguished medical experts with a range of different specialities most of whom had in witness statements expressed views on one side or other of the debate. However, early on in the hearing it became apparent that substantial parts of the basis of the unified hypothesis could no longer stand. Dr Geddes, at the beginning of her cross-examination, accepted that the unified hypothesis was never advanced with a view to being proved in court. She said that it was meant to stimulate debate. Further, she accepted that the hypothesis might not be quite correct; . . .” 72. In concluding comments in the Harris cases, the Court said in remarks taken from paras. 267 to 270:
As to expert evidence generally, the evidential rules as to admissibility are clear (see for example R v Bonython [1984] 38 SASR 45 and R v Clarke (RL) [1995] 2 Cr. App. R. 425 (facial mapping)). We see no reason for special rules where medical experts are involved. There is no single test which can provide a threshold for admissibility in all cases.” 73. R v. Henderson [2010] 2 Cr App R 24 is of limited value to Irish Courts because it is addressing practice in regard to disputed expert testimony in the context of new criminal procedure rules but it does have observations that have some general relevance to experts. 74. The important points of distinction between these cases and the instant appeal are, first, that they were concerned with head-on clashes between medical experts as to medical science itself and the implications of finding a certain cluster of symptoms. Secondly, they were mostly dealing with internal head injuries in the absence of other evidence of trauma. This case is wholly different in that there is not conflict with one specialist asserting the contrary to others as to areas of their expertise. That is the situation that Henderson specifically addresses. 75. By contrast, the question in the instant case was whether the jury were satisfied beyond reasonable doubt that the baby's injuries, which it was common case were traumatically caused, were inflicted by the appellant otherwise than by the accidental fall. 76. There was no rule applicable to this case that required the trial judge to instruct the jury about some particular methodology of examination or evaluation of the medical evidence. The judge might have done that and it would not have been wrong, but it is not obvious just what he was expected to tell the jury. The point is that the judge in a trial has considerable discretion as to the instructions he gives to the jury in the circumstances of the particular case. The Court is satisfied that there is no basis for criticising the approach the judge took in regard to the evidence in this trial. 77. The proper instruction to the jury does not require a specific direction as proposed by the appellant in every case where there is expert medical or other evidence. There are cases in which particular directions may be required as to the approach to expert testimony but that depends on the facts and issues of the trial. 78. The case of The People (Director of Public Prosecutions) v Murphy [2005] 4 IR 504 provides an example of a case where specific directions were given in relation to non-medical expert evidence. In that case, largely as a result of objections and interventions by Counsel for the accused, an expert witness from the Forensic Science Laboratory went into a lengthy, and perhaps over-technical explanation of DNA technology in the course of her testimony. Faced with a requisition that there was a danger that the jury could jump to the conclusion that the evidence was infallible and that he should give the jury assistance by describing DNA evidence, both in its biological and statistical aspects in understandable terms so as to enable them to properly perform their function, the trial judge recalled the jury and gave a simplified and accurate version of the essential requirements of what required to be proven in that context. The Court of Criminal Appeal was satisfied that the trial judge directed the jury appropriately with respect to the DNA evidence. 79. In the present case, the judge was satisfied that the medical experts were qualified by their studies and experience to give evidence of their opinions. Once the judge was so satisfied, it became a matter for the jury to determine what weight, if any, they should attach to the testimony of any particular witness. In doing so, they were required to do no more that bring to bear their ordinary critical skills and faculties in the performance of their task, and absent the existence of some extraordinary or special circumstances that might give rise to a need for it, they did not require to be given specific directions as to how to approach their weighing and assessment of the evidence.
80. Judge L.J. went on to observe that disagreements between experts were not uncommon and added at para. 89 that “evidence of this kind must be dealt with in accordance with the usual principle that it is for the jury to decide between the experts, by reference to all the available evidence, and that it is open to the jury to accept or reject the evidence of the experts on either side”. 81. It was therefore entirely a matter for the jury to decide what weight, if any, to attach to the evidence given by experts ostensibly in disagreement with each other, and determine whose evidence to accept and whose evidence to reject. Accordingly, the trial judge was under no obligation to give the jury the instruction requested by Counsel for the appellant.
82. Implicit in the submission is that where a doctor says something that is qualified in some way and that falls short of certainty, then the evidence has got to be disregarded as part of the prosecution case. That is not correct. Neither is it correct that simply because a particular assertion or statement made by one expert is qualified or even contradicted by another expert, that a similar result follows. The jury has to take into account all the evidence and that means putting into the scales the fact that a witness says that something is likely. Similarly, if the expert says that something is highly likely or that he or she has never seen a situation like that arising before, or has never seen a situation where that was not the case. All of those things are part of the evidence in the case and they are to be taken into account by the jury. It is not for the judge to parse and analyse every piece of evidence and to ascribe different weights to one statement as opposed to another by reference to some scale of provability that is to be determined by whether the witness used a particular expression in dealing with the degree of probability the event possessed in the doctor’s view. If it was relevant evidence, as the opinions of the doctors were, in addition to the facts of the doctors’ observations and tests and findings, then that was material for the jury to take into account in deciding, in all the circumstances and in light of all the evidence, including the expert evidence, whether the prosecution had proved the case or not.
83. The evidence of Professor Farrell was confined to looking at the brain injuries only, not including the baby’s head injuries. He had not seen the scalp or the skull so he could not comment on the point of impact, but his findings were that there was a severe, fatal brain injury. 84. The prosecution submits that the defence overstates the testimony of Professor Farrell in a potentially misleading or distorting manner. His letter/report said:
There are also petechial haemorrhages involving the inferior frontal lobes on both sides and haemorrhages located between the grey and white matter in the occipital lobes on both sides. Isn't that correct? Whilst it is entirely possible that the injuries could have occurred following a fall in an adult's arms [in which the rate of acceleration to the ground would have been that of an adult rather than a child] during which the child's head struck a hard object, it is not clear from the statement provided which part of the child, if any, actually struck a hard object. Now, this is a fatal head injury and I don't have access I don't know how it happened, but I'm telling you that you can have the same injuries produced with rapid acceleration, deceleration, without contact as you can with contact. So, it's really a matter of marrying up, as I said in the letter, the evidence for and against the contact phenomena and the scalp and the skull, 20 percent of people with a fatal head injury do not have a skull fracture. You know, so it's what remains uncontested, in my view, is the fact that there was a severe fatal head injury.” 86. The brain and head injuries that the baby suffered were not to be considered in isolation. By way of contrast with the English cases in many of which there was no evidence of physical trauma, baby Ross was severely injured and there was a widespread distribution of injuries over his body. 87. The judge was not obliged to give an exhaustive description of all the evidence. More specifically in relation to this ground of appeal, it was not the function of the trial judge to take up a position on the question of a skull fracture. 88. It was a matter for the jury to consider the evidence in respect of the baby’s head injuries and to assess in the course of their deliberations the evidence that it was unlikely or very unlikely that the baby’s brain injuries would have been caused by a fall not involving a skull fracture.
89. It is true that Dr. Brosnahan confirmed that there was a coagulation problem, probably caused by trauma, but that was at the time when he had sustained his fatal injuries. If the condition resulted from trauma, it was not previously present and therefore was not relevant to causation of the injuries and death. The appellant refers to the evidence of Dr. Sethi, but that does not support the case. This doctor rejected the suggestion that there might have been a coagulation problem evident during the baby’s first admission to Wexford Hospital. On that occasion, tests excluded a problem. There was no need to repeat the test because the first one was normal.
90. In his summary of the evidence of Dr. Kennedy, the trial judge included the following:
. . . it was a structurally normal eye, that this was an acute injury, which had occurred in a normal eye, not an eye that was previously malformed - or had any pre-existing disease. The pattern of multiple - such severe and extensive multiple retinal haemorrhages involving all the layers of the retina extending from the back of the eye right to the periphery in the context of the subdural haemorrhages described by Professor Cassidy and the brain haemorrhage without any pre-existing illness or other contributory factors is a constellation of changes that's highly suggestive of non-accidental injury. I'm here to talk about the retinal haemorrhages, not the brain.”
. . . but, you know, if somebody has a baby in their arms, and they're falling they'll try and protect the baby and, you know, it just babies fall so often and children fall so often and they don't get this degree of retinal haemorrhage, it just, it doesn't happen. Well, in as far as I know, unless there is impact with fractures and so on, you don't get, or it's pretty unlikely that you get such severe retinal haemorrhages. But, of course, nobody can say anything 100 %; it has to be a synthesis of all the information. I'm just giving you my opinion based on my experience and my reading of the literature on retinal haemorrhages.”
94. It would have been legitimate for the jury to consider the possibility that some of the bruising on the baby’s body might have been caused in the course of medical treatment and was therefore relevant in their consideration of the case. But, like many of the other points advanced in the appeal, while it would have been possible and permissible of the judge to mention them, it does not at all follow that not mentioning them is to be condemned as a failure to perform the judge’s function.
95. Counsel for the appellant described the summary of the evidence as a “conscientious, comprehensive, and scrupulously fair-minded summary”. 96. In regard to the defence case, the respondent points to some extracts from the judge’s charge as follows. 97. Having dealt with issues of mens rea the judge stated as follows to the jury:-
21. The learned trial judge erred in charging the jury to the effect that a reasonable doubt would be such as to cause a person not to pursue a contemplated course and in refusing to charge the jury that a reasonable doubt need not be of sufficient weight a to be decisive as to whether to pursue a contemplated course, but need only be sufficient to cause a person to pause or hesitate or delay in making a decision, for example, pending receipt of further information.
101. On reasonable doubt, the trial judge told the jury:
103. On the grounds of the charge in relation to presumption of innocence and reasonable doubt, the respondent submitted that these were dealt with in a proper and adequate manner. 104. This Court considers that the concepts of the standard of proof applicable in criminal trials and reasonable doubt were adequately explained to the jury.
105. The respondent submits that the charge, as it related to the appellant’s lies, was fair, balanced, and tailored to the particular circumstances of the case. The respondent points out that the trial judge was in fact concerned that he had put the Lucas warning in strong terms that were overly favourable to the appellant. 106. The trial judge gave an appropriate warning as to the reasons people lie in criminal investigations, to avoid criminal responsibility and otherwise. The trial judge said in his charge:
Conclusion 109. Some general concluding comments may be appropriate. 110. The principal objection, namely, that medical evidence called for special treatment in the form of a warning to the jury and specific directions by the trial judge is rejected by the Court as being inappropriate and unwarranted in the circumstances of the trial. The Court does not rule out any such warning in the case of expert evidence given by medical specialists or others in a criminal trial when it is necessary or desirable to do so. This, however, was not such a case. 111. In respect of a number of the grounds of appeal, it cannot be said that it would have been wrong to embark upon an analysis of differences that the trial judge perceived or that were suggested to him by Counsel from the evidence of the different witnesses. If the judge thought it necessary to do so, he could have chosen some or all of the points identified by Counsel and to have selected excerpts from the evidence to demonstrate points of similarity or difference or agreement or conflict. It is, however, a wholly different proposition to say that the trial judge was at fault in failing to do what he would have been entitled to do if he had thought it necessary. 112. This Court is satisfied the course adopted by the trial judge did not represent an erroneous presentation to the jury. There was no dispute between the experts on questions relating to medicine, as such. The issue that the jury had to consider was whether the number, nature, severity and distribution of the injuries to the baby might reasonably have been accounted for by the fall theory and the subsequent handling by lay persons and medical treatment. Clearly, the onus lay on the prosecution to refute such proposition to the satisfaction of the jury beyond reasonable doubt. 113. The trial judge correctly left the case to the jury for decision. He gave a thorough description of the evidence given by the various witnesses, but he kept comment on the evidence to a minimum. This Court is satisfied that the judge dealt with the evidence in an entirely satisfactory manner, having regard to the issues in the case. |