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Cite as: [2003] ScotHC 32

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Ritchie v. Her Majesty's Advocate [2003] ScotHC 32 (16 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Kirkwood

Lord MacLean

Appeal No: XC107/02

OPINION OF THE COURT

delivered by

THE LORD JUSTICE CLERK

APPEAL

GORDON STUART RITCHIE (also known as McGREGOR)

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: JD Keegan, solicitor-advocate, Miss A Ogg, solicitor-advocate; Gilfedder & McInnes, solicitors

Respondent: Bell QC, AD; Crown Agent

16 May 2003

Introduction
[1] On 16 May 2001 the appellant was convicted at Edinburgh High Court of having on 20 January 2000, at 61 Mosside Drive, Blackburn, West Lothian, assaulted his son, Deklyn Gordon Stuart Ritchie, then aged three months, by seizing hold of him by the body and repeatedly shaking him to his severe injury and permanent impairment and to the danger of his life.

[2] At the date of the incident, the appellant and Lorraine McDonald, the mother of the child, were cohabiting at the address libelled. The appellant was unemployed. He had care of Deklyn while Lorraine McDonald was out at work. Deklyn was born at 32 weeks gestation; but he had recovered well from conditions of prematurity that he had suffered during his neonatal period and was in good health.

[3] On the date libelled Lorraine McDonald rose at about 7.30 am to go out to work. She fed the child and put him in bed with the appellant. Lorraine McDonald's brother, Lee, was asleep in the other bedroom of the house. Some time after 10 am the appellant wakened Lee McDonald. He was carrying the child in his arms and was distressed. He asked Lee McDonald to telephone for an ambulance. The paramedics who came to the scene noted that Deklyn was breathing with difficulty and that his appearance was "floppy." He was taken to St. John's Hospital, Livingston and then transferred to the Sick Children's Hospital, Edinburgh where extensive specialist investigations were carried out. He was found to have sustained severe brain injury and permanent impairment. He showed no external signs of injury, apart from a small bruise on his chest.

[4] The appellant was interviewed on videotape by police officers two days later. The tape was shown to the jury. He said that he had changed Deklyn's nappy in the living room and, with Deklyn on his lap, had stretched forward for a feeding bottle. As he did so, Deklyn fell off his lap and struck his head on the floor. From evidence about the furniture in the livingroom it appeared that such a fall would have been from a height of between 11/2 to 2 feet. The floor was described as being a hard surface over which a thin covering was laid. The appellant also gave an account of the incident to various witnesses at the scene and at the hospitals. There were certain variations in the account that he gave, at any rate as the witnesses recalled it, but the substance of it was the same throughout.

The trial
[5] The witnesses for the Crown included five doctors who had treated the child, namely Dr David Theodosiou, a consultant paediatrician at St John's Hospital, and Dr John K Brown, a consultant paediatric neurologist, Dr David Simpson, a consultant anaesthetist, Dr Brian Fleck, a consultant ophthalmologist, and Dr George Hendry, a consultant radiologist, all from the Sick Children's Hospital. Their evidence was to the effect that the child had been injured by being shaken and that the mechanism of the fall to which the appellant spoke could not have accounted for the various symptoms found by clinical examination and by x-rays and MRI scans. These witnesses spoke to what Dr Brown called a "constellation of signs" demonstrating non-accidental injury caused by violent shaking, namely sub-dural haemorrhage, sub-arachnoid haemorrhage, retinal haemorrhages, and an older injury to the left tibia; and the absence of any soft tissue injury to the scalp, any skull or rib fracture, or any visible injury other than the bruise on the chest.

[6] The appellant did not give evidence. Two expert witnesses gave evidence on his behalf, namely Dr. Michael Jones, a scientist who lectures in clinical, trauma and orthopaedic engineering at Cardiff University and who spoke to certain specialised aspects of bio-mechanics, and Professor Helen Whitwell, Professor of Forensic Pathology at Sheffield University. Their evidence was to the effect that a short fall suffered by such a young baby could cause compression or stretching at the cranio-cervical junction such as to affect the brain stem and lead to hypoxia without there being any obvious head injury. They considered that the explanation given by the accused was tenable.

[7] Professor Whitwell had prepared a report (defence pro 2) to which was annexed a paper entitled "Fatal pediatric head injuries caused by short-distance falls" (J Plunkett, MD (2001) American Journal of Forensic Medicine and Pathology 22: 1-12 (the Plunkett paper)). One of the conclusions of the paper is that

"A fall from less than 3 meters (10 feet) in an infant or child may cause fatal head injury and may not cause immediate symptoms. The injury may be associated with bilateral retinal hemorrhage, and an associated subdural hematoma may extend into the interhemispheric fissure. A history by the caretaker that the child may have fallen cannot be dismissed" (at p. 10).

Professor Whitwell was not taken through her report by the solicitor advocate for the defence, and it was not put to Dr Brown, Dr Hendry or Dr Fleck for their detailed comments. Each was merely asked to comment on the Plunkett paper. Early in examination in chief, the solicitor advocate for the defence took from Professor Whitwell that she was a co-author of two papers that were relevant to the issue and would be published in July 2001 (transcript, pp. 8-9). These were the first and second "Geddes papers" to which we shall refer later. Later, Professor Whitwell referred more than once to the development of diagnostic thinking in cases of this kind and said that she could no longer be as dogmatic as she might formerly have been in ruling out the appellant's account as a possible explanation of the injuries (eg, pp. 39; 45). She later said that the forthcoming Geddes papers showed that the material signs could be caused by pure shaking or by impact (p. 71). She also suggested that the bruise to the chest could have been caused by attempts at resuscitation (p. 88). Professor Whitwell said that the symptoms caused her to suspect that this was a case of non-accidental injury; but that she could not exclude the appellant's explanation (pp. 47; 48; 62).

[8] It is clear that there was sufficient evidence to entitle the jury to convict. The case therefore resolved itself into a clear-cut jury question.

Proposed additional evidence
[9] This appeal is based on evidence not led at the trial that is said to be significant and to cast substantial doubt on the medical evidence led by the Crown. This evidence consists of three scientific papers published after the trial, the Geddes papers, and recent affidavits by Dr. Waney Squier and Dr. Gillian Adams.

[10] The Geddes papers are (1) "Neuropathology of inflicted head injury in children: I. Patterns of brain damage" (JF Geddes et al. (2001) Brain 124: 1290-1298); (2) "Neuropathology of inflicted head injury in children: II. Microscopic brain injury in infants" (JF Geddes et al. (2001) Brain 124: 1299-1306), and (3) "Dural haemorrhage in non-traumatic infant deaths: does it explain the bleeding in 'shaken baby syndrome'?" (JF Geddes et al. (2003) Neuropathology and Applied Neurobiology 29: 14-22). The first two papers were published in July 2001. The appeal, which was lodged in August 2001, was based on these. The third was published in February 2003 and the grounds of appeal were amended to take account of it.

[11] Ground of appeal 1 asserts that the Geddes papers support the defence evidence and cast considerable doubt on the value of the Crown evidence; that they conclude that previous medical opinion is unreliable; that they constitute substantial fresh evidence; and that that evidence was not and could not reasonably have been known to the appellant at the trial. Ground 9(i) asserts that there is a reasonable explanation for the non-production of the evidence at the trial, namely that at that time the Geddes papers were not in the public domain and had not been considered and evaluated within the medical profession; that this process has now occurred; that responsible medical opinion supports the views and conclusions contained in the papers; and that these views and conclusions impact significantly on the defence advanced at the trial and support a contention that this evidence ought to be preferred to the evidence for the Crown. Ground 9(ii) asserts that independent support for this explanation is contained in the affidavits of Dr Squier and Dr Adams. Ground 8 asserts that the "responsible medical opinion" referred to in the grounds of appeal is reflected in the opinion of Dr Squier.

[12] Dr. Squier is a consultant neuropathologist to the Oxford Radcliffe Hospitals and an honorary clinical lecturer in the University of Oxford. She has reviewed the records of the case in detail. She refers to the Geddes papers and to a number of other papers that have not been produced. She accepts that it is possible that shaking and impact may have caused the injuries; but she herself does not favour that explanation because the clinical history is inconsistent and because the child had no extra-cranial injuries. She believes that the fall described by the appellant could have caused apnoea, brain swelling, thin subdural haemorrhages and retinal haemorrhages.

[13] Dr. Adams is a consultant ophthalmic surgeon at Moorfields Eye Hospital, London. She specialises in the pathology of the developing brain in the foetus and neonate. Like Professor Whitwell she is a co-author of the third of the Geddes papers. She has reviewed the case records and the transcript of the trial, with particular reference to the evidence of Dr Fleck. She has also considered the Plunkett paper, which was published shortly before the trial and which, she thinks, might not have been known to all of the medical witnesses. Dr. Adams has interpreted the evidence in this case in the light of what are, in her view, significant findings in the Geddes papers. Her opinion is that many ophthalmologists are still unaware of the significance of the Geddes papers and that the vast majority of them would assume that the combination of intra-cerebral haemorrhage and retinal haemorrhages is likely to be due to shaking or shake impact injury. They would note that most combinations of retinal haemorrhage and intra-cerebral haemorrhage occur after significant trauma such as high-speed car accidents or falls from a significant height. There is also the belief that the more severe the eye signs the more severe the intra-cranial damage carrying with it the implication of a more severe inflicted trauma. Although at the time of the trial the majority of medical opinion favoured these conclusions, the research and findings reported in the Geddes papers and other literature contradict this. Dr Adams says that her professional view on this matter changed not only with the publication of the Geddes papers but also with her own research and the recognition that premature blood vessels are extremely fragile and that retinal haemorrhages can be produced by relatively minor pressure on the surface of the eye. She says that she has derived this from her own clinical observations and that the Geddes papers have contributed to her re-appraisal of the evidence in some cases.

Submissions

[14] The solicitor advocate for the appellant submitted that the evidence now tendered was material; that there was a reasonable explanation why it was not led at the trial; and that a verdict reached in ignorance of it constituted a miscarriage of justice. He moved us to order that evidence should be heard from the witnesses whose affidavits were before the court. In making these submissions, the solicitor advocate for the appellant accepted that the submission was difficult so far as it related to the first and second Geddes papers; but he said that the third paper was significant because it established that it was possible to sustain bilateral sub-dural haemorrhage without trauma.

[15] The advocate depute submitted that while the Geddes papers appeared to suggest that sub-dural haemorrhaging in infant deaths need not necessarily be caused by trauma, the trial had proceeded on the basis that the child's injuries had been caused by trauma, the question being whether the trauma was the shaking of the child or a fall on the head. There was no affidavit from Professor Whitwell explaining what the significance of the Geddes papers was and in what respect, if any, the findings of those papers would have affected her evidence at the trial. Professor Whitwell was the only medical witness who accepted the accused's explanation as a possibility in the absence of any external signs of a fall; but she also accepted that this could be a case of shaken baby syndrome. Every other medical witness had ruled out a fall. There was no affidavit from any Crown witness stating whether or not that witness's evidence would have been different in the light of the Geddes papers. Affidavits or reports from the witnesses at the trial on this matter were essential if an appeal of this kind were to succeed (Karling v HM Adv, 1999 SCCR 359). Without such evidence the test laid down in Kidd v HM Adv (2000 SLT 1068) could not be met. In any event there was no reasonable explanation why the evidence of Dr. Squier and Dr. Adams could not have been available at the trial.

Conclusions
[16] In an appeal of this kind it is for the appellant to satisfy the court that there has been a miscarriage of justice based on the existence and significance of evidence that was not heard at the trial (Criminal Procedure (Scotland) Act 1995, s. 106(3)) and that there is "a reasonable explanation of why it was not so heard" (s. 106(3A)).

[17] While it is true that the Geddes papers were not published at the date of the trial, we consider that the question is whether the evidence that they contain was before the jury. Professor Whitwell was a co-author of all three papers. The first and second had been submitted for publication in February 2001, before the trial began, and she was specifically asked about them. When one reads the transcript of her evidence, the inference is inescapable that the substance of those papers underlay Professor Whitwell's whole approach to the case. On the face of them, the Geddes papers seem to deal with the central theme of Professor Whitwell's evidence. In the absence of any affidavit from her to the contrary, and in the absence of any reference by the solicitor advocate for the appellant to the transcript of her evidence, we proceed on the basis that her evidence on the crucial issue reflected the findings and conclusions set out in these papers. For that reason alone the appeal, so far as it relates to those papers, cannot be sustained.

[18] In any event, if the substance of the first and second papers was not before the jury, there seems to be no reasonable excuse why it was not. The appellant's solicitor advocate did not lodge proof copies or drafts of them, nor did he take Professor Whitwell through their contents, even in outline.

[19] Moreover, the solicitor advocate for the defence did not mention the possibility that a third Geddes paper would be published at a later date. Since the third Geddes paper was submitted for publication in August 2002, there is a distinct question as to whether at the date of the trial Professor Whitwell was in possession of the research findings on which it was based and whether the substance of that article existed at least in draft. If that paper were to be treated as containing new evidence not available at the trial, we would require an affidavit from Professor Whitwell on the point. We are therefore not persuaded that that paper contains evidence that was not heard at the trial.

[20] However, even if we assume that the Geddes papers constitute new evidence that was not before the jury, we consider that the appellant has failed to establish their significance in relation to the evidence at the trial. None of the medical witnesses at the trial has given an affidavit on that subject. In particular, the court has not been given any comments by Professor Whitwell on the subject matter of the third Geddes paper, on which the submission for the appellant is largely founded, or on its significance in relation to the evidence for either the Crown or the defence.

[21] Furthermore, even if the appellant were to satisfy us that the evidence of the Geddes papers is significant, he would still have to satisfy us that it is of such significance that a verdict given in ignorance of it must be regarded as a miscarriage of justice (Kidd v HM Adv, supra, at para. [23]). There is no material before the court to suggest that if any of these papers had been published at the time of the trial, the conclusions of any of the prosecution witnesses would have been materially different. Since the solicitor advocate for the appellant has not referred us to the transcript of the trial to demonstrate how such evidence might have affected the jury's decision, it follows that we have been given no basis on which we could hold that a miscarriage of justice occurred.

[22] The affidavits of Dr. Squier and Dr. Adams are lodged to support the contention that the Geddes papers demonstrate that previous medical opinion is unreliable and that responsible medical opinion now supports the views that they express. In our view, that proposition is one that would have to be supported by affidavit evidence from the witnesses at the trial. In any event, neither Dr Squier nor Dr Adams asserts that the points that she draws from the Geddes papers were not canvassed at the trial; and we have not been referred to any passage in the transcript that might suggest otherwise.

[23] Furthermore, neither Dr Squier nor Dr Adams disputes that shaken baby syndrome is a possible explanation of the child's injuries, and neither suggests that the points that she makes in support of the defence case were not in substance made in the evidence of Professor Whitwell.

[24] To the extent that the evidence of these proposed witnesses simply differs from that given by the Crown witnesses at the trial, we have been given no explanation why their evidence was not heard at the trial.

[25] We conclude, therefore, that in relation to this evidence too, the requirements of section 106(3) have not been made out.

Disposal
[26] We have therefore refused the appeal.