APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lady Smith Lord MacLean	[2011] HCJAC 48 Appeal No: XC228/08 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by FAISAL YOUNAS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Jackson QC, Brown QC; Capital Defence

Respondent: Cherry QC, Advocate depute; Crown Agent

12 May 2011

Introduction

[1] On 24 January 2008 the appellant was convicted after trial at Glasgow High Court of the following offence:

"On 16 September 2005 ... you ... did assault Alishba Younas, born 25 December 2004, your daughter ... and did seize hold of her by the body and shake her or otherwise inflict trauma on her head and neck and cause her to sustain a head and neck injury whereby she was so severely injured that she died on 18 September 2005 at Yorkhill Hospital ... and you did kill her."

[2] The appellant appeals against conviction, contending that the trial judge's charge contained misdirections. The first passage complained of relates to statements or actions by persons other than the appellant, incriminating him, but made or performed outwith his presence or knowledge. The second passage consisted of a warning to the jury not to speculate about future developments in medical science.

The trial

[3] Initially both the appellant (aged 35) and his wife were on trial. The jury were empanelled on 12 November 2007. On 18 January 2008, the Crown withdrew the libel against the appellant's wife. The trial ended on 24 January 2008.

[4] The evidence established that Alishba had been unconscious when admitted to Yorkhill Hospital. There were signs of neurological impairment. Investigations, including CT scans, revealed subdural haemorrhage, swelling of the brain, retinal haemorrhages, retinal folds, and ruptured bridging veins. Alishba failed to recover consciousness. On 18 September 2005, brain stem death was diagnosed and the life support machine was switched off.

[5] Although there were differences of opinion amongst medical experts as to whether the brain injury could have been caused by shaking, there was no dispute that the cause of the brain damage was trauma, either inflicted or accidental. Matters discussed by the experts included subdural bleeding, bilateral folds in the retina, and ruptured bridging veins. The appellant's own evidence was to the effect that nothing untoward had occurred while he had the care of Alishba. His evidence therefore excluded accidental injury.

[6] The majority of the Crown expert opinion was that shaking could have caused Alishba's injuries. Contrary views were expressed by three defence medical witnesses. Their evidence, summarised at pages 82 et seq of the judge's report, and referred to by senior counsel for the appellant in the course of the appeal, was as follows:

[7] Dr Waney Squier: Dr Squier, a consultant neuropathologist and honorary clinical lecturer at the University of Oxford, gave her opinion that shaking was unlikely to have caused the baby's injuries - although ten years previously she would have characterised the injuries as "shaken baby syndrome", a syndrome first recognised in 1971. She gave reasons for her views, based on studies and developments in medical science. She considered that choking might be a possible explanation, but ultimately could not exclude impact trauma as the cause of the injuries.

[8] Dr David Doyle: Dr Doyle, a retired consultant paediatric neuropathologist, thought that several possible causes might have led to the baby's collapse, such as choking and the consequences of an earlier skull fracture resulting in weakened structures including weakened veins.

[9] Dr Kirk Thibault: Dr Thibault had a PhD in biomechanical engineering. He had studied the biomechanics of paediatric brain injury. His conclusion was that shaking was not the cause of the baby's injuries. In cross-examination, he agreed that he could not rule out impact with a compliant surface.

[10] In addition to the medical evidence, there was evidence from a consultant paediatrician, Dr Ahmed, who interviewed both parents after Alishba had been brought to Yorkhill Hospital. The judge noted some of his evidence at pages 15, and 19 to 20 of his report:

" ... By that time, the police and social work officials had already been contacted. In such circumstances it is normal practice to ask if the child has been handled roughly or smacked. Accordingly he had put a specific question to the parents. He asked, 'Have you ever hit the child, Alishba?' He said that there was a glance from the mother to the father. The father was looking straight ahead. Dr Ahmed was sitting next to him. The mother was at right angles to the father. The mother turned and gave a brief look to the father. Dr Ahmed said that it had been a stressful day for all of them. He often interviewed parents in cases of non-accidental injury and he had never seen that look before. People look at each other in the course of conversation, but this was different. The look was serious. It was fleeting. It did not look as if it was inquisitive. The memory of the look had remained with the witness. He did not recall asking anything about rough handling because he did not know the Urdu for that ..."

There was further evidence from a neighbour of Mrs Younas, named Mrs Kousar. As the judge noted in his report at pages 25 and 29.

" ... A nurse showed [Mrs Younas and Mrs Kousar] into a waiting-room [in Yorkhill Hospital. Mrs Younas] appeared upset. [Mrs Kousar] was upset because she did not know what had happened. [Mrs Younas] told her that [the appellant] had battered the baby, and the baby fell limp, and that he took her to the doctor ...

... When [Mrs Kousar] gave the evidence-in-chief about [Mrs Younas] saying that the appellant had 'battered the baby' after which the baby 'fell limp and he took her to the doctor', senior counsel for the appellant invited me to direct the jury that this was not evidence against the appellant. I confirmed that I would give such a direction at the appropriate time, but if it was desired that I should say something immediately I would do. Accordingly I gave the jury a direction that the evidence about the statement from [Mrs Younas to Mrs Kousar] was not evidence against the appellant because he was not present. I also explained to the jury that I would give them a fuller direction at the appropriate time when I was directing them as to the law which they had to apply in reaching their verdict ..."

An extract from defence counsel's speech to the jury

[11] Trial counsel for the appellant, at one point in his speech to the jury, referred to the medical evidence as follows:

"... We then look at the Crown experts, and I'm not going to go through them all, you will be delighted to know. All of them say the same thing, that's the one thing they can all agree on, from the pathological evidence they cannot say whether what they saw under their microscopes was a result of an inflicted injury or as a result of an accident. That is what they all say. You see, this isn't an academic exercise; it's not a university examination. The Crown are asking you to convict a man of the most appalling crime on the basis of opinion evidence. They are entitled to do so, but you have to look at it very carefully indeed. This is not an exact science. We know that science develops; DNA, fingerprints. We know that science develops. All of these men and women who have given evidence have all said the same thing; they have all said that if you were asked various questions five years ago, would your evidence be different than it is now in various areas, and they all said yes, it might be. 'And if I asked you the same question in five years time, might it be different again?' And they said, 'Yeah, it might be.' Because we know science moves fast. Now, you have to deal with the evidence as it is before you today, but the Advocate depute was right, you have to look with a degree of caution and take into account what they as experts say, that they are giving you a snapshot of their knowledge at this time, because in the course of their professional careers their opinions can change. We know that. Five years time is no use to Mr Younas. If you convict him tomorrow or Thursday of culpable homicide and in a few days time you are sitting at home watching television and you think, 'I voted to convict that man of culpable homicide. Just thinking now ... I just wonder whether that was the right thing to do. Maybe he was telling the truth. Maybe the expert did get it wrong.' You're too late. It's too late. And in five years time, if there's a breakthrough in child neuropathology, showing how children can get damage to a brain, showing how bridging veins can come to be ruptured or showing how you get retinal folds, well, too late ..."

The judge's charge and the passages criticised

[12] In the opening passages of his charge, the judge directed the jury that the evidence upon which they were entitled to rely was the evidence which witnesses had given in court; the label productions; and what was contained in the joint minute. At page 12 of the charge, the judge began giving the jury general directions. He explained inter alia that they could not rely upon hearsay evidence, although they were entitled to take into account statements which the appellant had made to other people. At pages 18 to 22 of the charge, the judge directed the jury as follows:

"Now ... there might be other witnesses who refer to statements made by the accused, and if so their evidence is also relevant for your consideration. But I want to emphasise, ladies and gentlemen, it is only statements made by Mr Younas himself ... to others, that can be treated as evidence in the case against him. That is particularly important in this case, because initially there were two accused, Mr Younas and his wife. And in that regard, you may recall the evidence of Dr Ahmed, that when he asked both parents if they had ever hit Alishba, Mrs Younas glanced at the accused, who looked straight ahead. Dr Ahmed conceded in cross-examination that they shook their heads and may have said no. But even if you accepted the evidence of Dr Ahmed about the glance from Mrs Younas, that is not evidence against the accused because there is no evidence that the accused saw it or had any opportunity to react to it, if it had any significance at all.

You may also recall, ladies and gentlemen, in the context of what other people said, that Mrs Younas allegedly made a statement implicating her husband in Alishba's death. So I should ... tell you how you should deal with that. This is the second special feature of evidence in the case.

Statements allegedly made by one accused ... when the other accused is not present are not evidence against the absent accused. So, if one accused says something about the other accused, when the other accused is absent, they are not evidence against the absent accused.

And you may recall in evidence ... the evidence-in-chief of Farzania Kousar. She alleged that she went to Yorkhill Hospital with her father when she heard about Alishba and Alishba was in the intensive care unit. She said she met Mrs Younas and they were shown into a waiting-room. Both Farzania Kousar and Mrs Younas were upset, and Mrs Kousar ... alleged that Mrs Younas said that Faisal had battered the baby, the baby fell limp, and that he (that's Faisal) took the baby to the doctor.

Now, you might remember that when this issue first arose, and we're away back at the beginning of the evidence, early days of the trial, I directed you at the request of Mr McBride [counsel for the appellant] that statements allegedly made by Mrs Younas about her husband were not evidence against him if he was not present when they were made.

The defence position, of course, in relation to Mrs Kousar, based on cross-examination, was that you can't rely upon anything which she said at all, because she admitted to lying to the police about Mrs Younas. However, ladies and gentlemen, as a matter of law it goes further than that. It's not simply a case of whether you can or cannot rely upon Mrs Kousar, it goes further, and I'll repeat the direction that I gave in the course of the trial, and it is this: that even if you accepted Mrs Kousar's evidence that Mrs Younas said these things, that is not evidence against the accused because he was not present when it was said, and he had no opportunity to respond to it at the time. In other words, ladies and gentlemen, you should simply reject that piece of evidence from Mrs Kousar, and you need not even concern yourself about whether ... Mrs Kousar was correct or telling the truth when she said that Mrs Younas said that or not. It is not evidence available to you for your assessment of the case against the accused ..."

[13] Later in his charge, at pages 36 to 37, the judge further directed the jury as follows:

" ... And in his able address to you, Mr McBride said in the context of your having returned a verdict of guilty, that it would be too late for you in five years time if there was a breakthrough showing how babies acquired retinal folds [or] subdural haemorrhages. I hope that I don't do him an injustice, but it seems to me that there is an element of speculation in that observation, and you must disregard it. In reaching your verdict, you must confine yourself to an assessment of the evidence as it is now, not what may be the situation speculatively in five or ten years time. Clearly you can only decide the case on the basis of now, and not the future.

And if Mr McBride were correct that you should concern yourselves about developments that may take place in the future, no jury could rely upon any expert's scientific evidence because of the possibility of future developments in that scientific discipline."

Grounds of Appeal

[14] The appellant appeals against conviction on inter alia the following grounds:

"That the learned trial judge misdirected the jury:-

(i) That in his charge to the jury, the learned trial judge placed inappropriate emphasis on prejudicial evidence that he ultimately directed that they should ignore. This can be seen at pages 19 [lines 5-24]; 20 [lines 1-24]; 21 [lines 1-24] and 22 [lines 1-9] of the transcript of the charge. It will be noted that the learned trial judge fully rehearses this evidence in his direction as to what should be ignored, thus bringing undue attention to it. Whilst there may be cases when such direction cannot be criticised, in the context of a trial enduring 9 weeks, and concerning the emotive subject of the death of a child at the hand of her father, such detailed reference would serve only to emphasise the prejudicial content of this inadmissible evidence.

(ii) That in directing the jury against speculation, the learned trial judge is unfairly critical of the speech given by defence counsel. This can be seen at pages 36 and 37 of the transcript of the charge [line 7 of page 36 - line 4 of page 37]. Whilst it would ordinarily be proper for a judge to direct against speculation, and correct to criticise counsel who invited speculation, it was not appropriate in the context of this trial, as it was the focus of cross examination of expert witnesses, and served to elicit evidence of a developing science. In this case, the Crown placed significant emphasis on expert medical and scientific evidence of intra cranial findings on post mortem dissection of the deceased infant, and thus neuropathological evidence. In order to demonstrate the unreliability of such evidence, each expert was cross-examined as to the infancy of this science, and the fact that other experts may have contrary opinions. Three experts were led in support of the defence propositions, whose opinions differed from those of Crown witnesses. In his speech to the jury, defence counsel properly sought by the remarks criticised by the learned trial judge to demonstrate that this was a science that was developing, and not one with established parameters. In directing the jury as he did, the learned trial judge has undermined the weight that ought to be attached to the critical cross-examination of Crown witnesses, their general concessions that the science was a developing one, and indeed the [expert] evidence led ... from witnesses called by the defence."

The judge's report

[15] At pages 11 and 15 of his report, the judge responded to the Grounds of Appeal inter alia as follows:

"The first ground of appeal against conviction alleges that I placed inappropriate emphasis on prejudicial evidence that I directed the jury to ignore. Reference is made to passages at pages 19, 20, 21, and 22 of my charge, and criticism is directed at these passages because they 'serve only to emphasise the prejudicial content of this inadmissible evidence', in the context of a trial enduring nine weeks, and concerning 'the emotive subject of the death of a child at the hand of her father' ...

... Despite the length of the trial, it was apparent that the jury was very attentive, and some of them appeared to be taking notes throughout the evidence. Even if that had not been the case, there is an underlying assumption in our system of jury trials that the jurors have heard all of the evidence and upon their retiral to consider their verdict, they undertake an evaluation of all of the evidence to determine what facts they find established. In these circumstances it respectfully seems to me that it is incumbent upon the trial judge to ensure that jurors are directed to ignore particular passages from a witness's testimony if they are not evidence in the case against a particular accused ..."

The judge gave details of the doctor's interview with the parents, and continued at page 19 of his report:

" ... From the above summary of the evidence given by Dr Ahmed, it respectfully appeared to me that the attention of the jury was drawn to the evidence about the glance. Not only did it feature in the evidence-in-chief, but more than half of the time taken to cross-examine Dr Ahmed was involved in asking questions about this matter. Inconsistencies between his statement to the police and his evidence about whether he spoke in Urdu or English were highlighted. He was asked about the seating arrangements when this glance was exchanged. To an uninformed bystander it would appear that his evidence about the glance was significant. However there was no evidence that the appellant had seen the glance, and it may well be that he had no opportunity to react to it. I considered that the evidence may well be prejudicial to the appellant, and it seemed to me to be essential to advise the jury that Dr Ahmed's evidence in this regard was not evidence against the appellant. It was in that context that I made the comment that I did at page 19 of my charge ..."

[16] In relation to the criticism of the passage relating to Mrs Kousar's evidence, the judge explained at page 29 of his report:

" ... When [Mrs Kousar] gave the evidence-in-chief about [Mrs Younas] saying that the appellant had 'battered the baby' after which the baby 'fell limp and he took her to the doctor', senior counsel for the appellant invited me to direct the jury that this was not evidence against the appellant. I confirmed that I would give such a direction at the appropriate time, but if it was desired that I should say something immediately I would do so. Accordingly I gave the jury a direction that the evidence about the statement from [Mrs Younas] to [Mrs Kousar] was not evidence against the appellant because he was not present. I also explained to the jury that I would give them a fuller direction at the appropriate time when I was directing them as to the law which they had to apply in reaching their verdict.

The evidence of [Mrs Kousar] was not confined to the statement allegedly made by [Mrs Younas] to [Mrs Kousar] about the actions of the appellant. In directing the jury as I did, I wished to make it clear to them that that passage of the evidence was not evidence available to them in assessing the Crown case against the appellant ..."

Submissions

Submissions for the appellant

[17] First ground of appeal: In relation to the first passage complained of, senior counsel submitted that the trial judge had given inappropriate emphasis to the prejudicial evidence which he directed the jury to ignore. He highlighted the very evidence which was not to be taken into account, in a way which was prejudicial to the appellant. Before the passage at pages 18 to 22 of the charge, the judge had given fairly full guidance, in general terms, about the evidence upon which the jury could, or could not, rely. But he chose to remind the jury about the evidence which the doctor gave about Mrs Younas' glance at the appellant during the interview. The judge specifically reminded the jury of evidence given by the doctor about what he (the doctor) considered to be significant. Whilst accepting that it was a matter of judgment, and that it was a difficult balancing exercise, the judge should, in the particular circumstances of the case, have avoided specifying the evidence which was not to be taken into account. His directions on this matter re-focused the jury's attention on the proscribed evidence, weeks after the evidence had been given. No-one else had founded upon that evidence in speeches. The matter should have been dealt with in general terms by, for example, directing the jury that anything said or done in the appellant's presence was not evidence against him unless the appellant had been aware of what was said or done.

[18] The same criticism was made of the direction relating to Mrs Kousar's evidence about what Mrs Younas had said to her. While no transcript of the Advocate depute's jury speech was available, that passage of evidence was unlikely to have been relied upon, as Mrs Younas was no longer a co-accused. To give the specific detail which the judge gave (in particular repeating the words "Faisal had battered the baby, the baby fell limp") was to highlight certain evidence, given weeks earlier, which should not have been emphasised to the jury, as they could not rely upon it. It was accepted that defence counsel had requested the judge to give an appropriate direction when Mrs Kousar gave her evidence, all as set out in the judge's report (quoted in paragraph [16] above). It was accepted that the judge had done so, and that he had told the jury that he would give them a fuller direction in his charge. It was therefore conceded that it was not easy to achieve the correct balance. But there had been no need for the judge to spell out in detail the particular part of Mrs Kousar's evidence. To do so was unnecessary, and had the effect of drawing to the jury's attention precisely what they should ignore, thus doing more harm than good.

[19] In the result, the trial judge had, on two occasions, drawn the jury's attention to the precise detail of evidence which they were to ignore. The cumulative effect was prejudicial, particularly when set in the context of a case which consisted largely of conflicting medical opinion. While the appellant's son (aged 6) had given evidence, he was so young that not much reliance had been placed upon his evidence. Thus the misdirections complained of were significant and had led to a miscarriage of justice. The appeal against conviction should be allowed.

[20] Second ground of appeal: In relation to the second ground of appeal, the direction concerning medical science, senior counsel submitted that the trial judge had, in effect, directed the jury that they must disregard the submission made to them by the appellant's counsel in his jury speech. The judge had gone further than directing the jury not to speculate: he had specifically instructed them to disregard or ignore counsel's submission. Counsel had dealt with the defence medical evidence in his speech. Dr Waney Squier's final position was that she did not think that shaking was the cause of death; she would not rule out choking; it could be trauma; no-one knew what the cause was. Dr David Doyle gave evidence that all the problems could have arisen as a result of the child's earlier injury. Dr Kirk Thibault did not accept that shaking had caused the death. Thus, as defence counsel pointed out to the jury, there was a difference of medical opinion in a developing situation, with medical experts agreeing that there had been changes in knowledge and that those changes might continue. In such circumstances counsel was entitled to suggest that the jury should "hesitate before accepting" certain medical evidence. Counsel had told the jury that they had to deal with the evidence as it was, but in a developing medical field with differing opinions counsel was entitled to warn the jury to hesitate before concluding (on the basis of the Crown expert evidence) that the appellant was lying. Counsel had, quite properly, explored the fact that five years previously, medical opinion had been different. The experts had, in evidence, conceded that five years hence, medical opinion might have changed again. The trial judge's direction sought to undermine a legitimate submission which went to the core of the whole case. A miscarriage of justice had occurred.

Submissions for the Crown

[21] First ground of appeal: The Advocate Depute presented five arguments:

(i) There was an assumption that the jury heard and took account of all the evidence, unless they were directed not to. Thus the specific directions relating to Dr Ahmed and Mrs Kousar were necessary, even if those parts of the evidence were not referred to in either jury speech.

(ii) The judge had a difficult decision to make, namely whether to rely upon general directions only, or whether to give a specific direction in certain circumstances. It was a matter for his discretion. The judge could not be faulted in the present case for deciding to give a specific direction. He had heard the evidence and watched the jury taking extensive notes. The jury must be assumed to follow all his directions, both general and specific. The totality of the directions in the present context, although outlining the prejudicial evidence, made it crystal clear to the jury that they could not take either piece of prejudicial evidence into account.

(iii) One reason for the judge's decision in the exercise of his discretion may have been the fact that the trial lasted 21/2 months, and within the trial there were two significant gaps in time, one of 10 days and one of 21/2 weeks. Both Dr Ahmed and Mrs Kousar had given evidence in the early stages of the trial (December 2007), and the judge did not charge the jury until 23 and 24 January 2008.

(iv) It was clear from the judge's report that a considerable amount of Dr Ahmed's evidence was devoted to "the glance". As the judge pointed out in his report to this court at page 20:

"To an uninformed bystander, it would appear that his evidence about the glance was significant."

That factor too may have contributed to the judge's decision to give specific guidance on the matter.

(v) The appellant's trial counsel had requested the judge to give the necessary direction when Mrs Kousar gave evidence. He had requested the judge to warn them that Mrs Kousar's evidence about a comment made by the appellant's wife outwith the appellant's presence was not evidence against the appellant. The judge had done so, with a promise to the jury that he would give them further directions on the matter (page 29 of his report). Had the judge not given the jury the further directions promised, the jury might either have been confused, or might have thought that the earlier direction was not being insisted upon and therefore could be discounted. The jury must be assumed to follow the clear directions given by the judge, and to leave out of account the two pieces of evidence as instructed.

[22] Second ground of appeal: The judge's direction had not undermined the central point in the defence case.

[23] Defence counsel had not in fact said to the jury that they should hesitate before accepting the Crown experts' evidence in a field in which medical opinion was changing over the years. Counsel had rather invited the jury to speculate about what might happen in medical science and knowledge in five years time. Counsel had invited the jury to speculate that there might be a breakthrough in child neuropathology, showing how brain damage, ruptured bridging veins, and retinal folds could occur, and that breakthrough would be too late for the appellant. The trial judge was therefore correct to tell the jury, at pages 36 and 37 of his charge, that as a matter of law, they must not speculate about what the situation might be in five or ten years time. The judge was right to do so: otherwise in any case involving a developing science, it would be impossible for the jury to rely upon what they had been told was the state of the science at the time of the trial.

[24] The directions complained of had to be assessed in the context of the whole charge. The judge had told the jury to avoid speculation generally. The judge dealt with the evidence of experts at pages 28 to 34, and with evidence generally at page 8, and 13 to 17. The general directions were not criticised in this appeal.

[25] Ultimately the key issue in the trial had been the difference in medical opinion about whether shaking did, or did not, cause the injuries. That was the true focus, rather than developing medical science and knowledge. Thus defence counsel's comments to the jury about where medical science and knowledge might be in five years time were indeed objectionable.

[26] Defence counsel's speech to the jury had in fact reflected that focus. Reference was made to pages 14, 17, and 19 to 22 of counsel's speech.

[27] In the present appeal, it was not said that the trial judge had erred in his general directions (concerning, for example, how to approach expert evidence). Nor was it contended that the verdict reached was one which no reasonable jury, properly directed, could have reached.

[28] No miscarriage of justice: The Advocate depute finally submitted that if either direction (complained of in Grounds of Appeal 1 and 2) amounted to a misdirection, then no miscarriage of justice had occurred because of the weight of the expert evidence. The Crown led the evidence of two treating paediatricians; two pathologists (speaking about the post-mortem); a consultant neuropathologist; a consultant pathologist specialising in ophthalmic pathology; a consultant neuroradiologist; a consultant paediatrician who had not treated the child; a consultant neurosurgeon; and a biochemical engineer. The defence led in evidence a neuropathologist (Dr Squier); a retired consultant neuropathologist (Dr Doyle); and a biochemical engineer (Dr Thibault). The medical witnesses gave evidence about the mechanisms of injury and the pathology of the child.

[29] All the Crown experts took the view that the injuries could be caused by shaking and trauma. Only one Crown expert attributed the injuries to shaking only if the shaking involved impact. Of the defence witnesses, two (Drs Squier and Thibault) excluded shaking; but none of the defence witnesses excluded trauma. Thus the weight of the evidence pointed possibly to shaking, but definitely to trauma. The appellant's own evidence excluded accidental trauma. Thus there was no possibility of a miscarriage of justice because of the weight of the medical evidence.

Reply for the appellant

[30] Senior counsel for the appellant wholly disagreed with the Crown's final argument that there had been no miscarriage of justice. There had been major differences of opinion by eminent experts on either side, in a field of developing science. In such circumstances, the Advocate depute's contention that there could not be said to have been a miscarriage of justice, was unstateable.

Discussion

First ground of appeal

[31] The standard direction given to juries warns them that anything incriminatory said about an accused person outwith his presence cannot be used as evidence against him, as he was not present when the words were said, and was unable to deny, explain, comment on, or qualify the incriminatory statement. However such a direction would not have given the jury sufficient guidance in relation to the glance which Mrs Younas gave the appellant during the interview with the doctor. As the judge points out in his report at page 20, "there was no evidence that the appellant had seen the glance and it may well be that he had no opportunity to react to it". The situation was therefore equivalent to someone making a prejudicial statement (in this case, by body language) about the accused when the latter was in some way unaware of that statement, and was therefore not given an opportunity to respond in the ways set out above. Accordingly it was, in our opinion, necessary for the judge specifically to warn the jury not to use the evidence relating to the glance as evidence against the appellant. We cannot accept that the judge erred by reminding the jury of the evidence relating to the glance. If the judge had attempted to use more vague and abstract language, there would have been a risk of confusion or misunderstanding, and a possibility that the jury would not have realised what was being referred to. The jury then might have relied upon the glance as evidence against the appellant. It was therefore entirely appropriate for the judge to give the direction he did.

[32] As for Mrs Kousar's evidence about what Mrs Younas told her, at the time that evidence was elicited, defence counsel invited the trial judge to direct the jury that the evidence could not be used as evidence against the appellant: see page 29 of the judge's report, quoted in paragraph [16] above. As the judge there explained:

"... I confirmed that I would give such a direction at the appropriate time, but if it was desired that I should say something immediately, I would do so. Accordingly I gave the jury a direction that the evidence about the statement from [Mrs Younas] to the witness was not evidence against the appellant because he was not present. I also explained to the jury that I would give them a fuller direction at the appropriate time when I was directing them as to the law which they had to apply in reaching their verdict."

That being the situation mid-trial, it was in our view necessary for the judge in his charge to remind the jury specifically of that part of Mrs Kousar's evidence, and to warn them that it could not be used as evidence against the appellant. The judge had to define which passage in her evidence he was referring to, as there were other passages which the jury would be entitled to take into account. Had the judge failed so to remind the jury, there would have been a danger that the jury might conclude that the judge had in some way departed from his earlier instructions. They might then have relied upon that passage in Mrs Kousar's evidence. In the result, we are not persuaded that the judge erred in giving the direction he did.

Second ground of appeal

[33] We agree with the Advocate depute that the latter part of the extract from defence counsel's speech quoted in paragraph [11] above in effect invited the jury to speculate about possible developments in medical science and knowledge in the next five years, and in particular to speculate that such developments might in some way absolve the appellant from any blame for Alishba's condition. We consider that the judge was right to direct the jury that they could not so speculate when assessing the evidence (pages 8, 13 to 17, and 28 to 34 of his charge). The jury had to base their deliberations upon the medical evidence and medical opinion as it stood at the time of the trial. It would have been improper for the jury to try to guess or predict the state of medical knowledge five years hence, which was in effect what defence counsel was latterly inviting them to do. It was therefore necessary for the judge to give them the specific guidance he did. We are not persuaded that he erred in so doing.

Decision

[34] For the reasons given above, we refuse the appeal against conviction.