Appellant: A Ogg, Solicitor Advocate; Drummond Miller, Edinburgh (for Bruce MacDonald, Aberdeen)

Respondent: Niven Smith, AD; Crown Agent

19 February 2013

[1] We agree with the advocate depute that this is a circumstantial case. The sheriff took into account inter alia the following strands of evidence. First, the statement of the appellant (given in his police interview and also to his wife) namely, that what had occurred was that the child had fallen from the bed, had been injured and was crying. Secondly, the strong medical evidence from two very experienced consultant paediatricians to the effect that the injuries were not consistent with the explanation provided by the appellant. Thirdly, the evidence given by the medical experts, that in their opinion, the cheek bruises were attributable to pinching or gripping. Fourthly, the nature and the extent of the cheek injuries which were clearly demonstrated in the photographs. Fifthly, the fact that the child was aged nine months, that the explanation given by the appellant did not fit with the medical evidence, and therefore that the pinching referred to by the medical experts was indicative of the presence of mens rea for assault. Finally, in relation to the identity of the perpetrator, not only did the grandfather say in his agreed evidence that bruises were apparent on the child's face when he arrived, but also the appellant himself is noted in paragraph 40 of the sheriff's report as accepting that the child had been injured while in his sole care.

[2] In all the circumstances the sheriff did not err in our opinion, when he rejected the "no case to answer" submission, standing the nature and extent of the evidence. We consider that he was entitled to reach the conclusion he did, and to convict the appellant as he did. We accordingly answer question 1 in the negative and question 2 in the affirmative. The appeal is refused. The Bill of Suspension is also refused.

DAW