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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> BEGU, APPEAL AGAINST CONVICTION BY SYEDA SOKINA BEGU [2020] ScotHC HCJAC_16 (16/04/2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_16.html
Cite as: 2020 SCCR 223, 2020 GWD 16-231, [2020] ScotHC HCJAC_16, 2020 JC 217, [2020] HCJAC 16
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 16
HCA/2019/187/XC
Lord Justice General
Lord Menzies
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL AGAINST CONVICTION
by
SYEDA SOKINA BEGUM
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: McConnachie QC, Connor; Faculty Appeals Unit (for David E Sutherland & Co,
Aberdeen)
Respondent: Richardson QC AD; the Crown Agent
16 April 2020
[1] On 1 March 2019, at the High Court in Aberdeen, the appellant was convicted of a
charge which libelled that:
“on 1 January 2017 at… you… did assault [GN], born … 2016… and did shake her by
the body to her severe injury and the danger of her life”.
On 9 April 2019 she was sentenced to 3 years imprisonment.
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[2] On 15 July 2019, the appellant lodged a Note of Appeal containing 16 separate
grounds of appeal and an omnibus seventeenth ground. On 2 September, leave to appeal
was refused at first sift. On 14 November, leave was granted in respect of three grounds (1,
2 and 4). An application to reintroduce seven of the remaining grounds was, with one
exception (ground (3)), refused (see Statement of Reasons HCA/2019/187/XC).
[3] The case is a distressing one involving the shaking of a baby in a manner which
caused her life threatening injuries. Fortunately, the baby has made a remarkable recovery.
She was discharged home within three weeks of her hospital admission. The legal issues
which remain are encompassed in the four interlinked grounds of appeal. Three of these
concern the adequacy of the trial judge’s directions on expert evidence. It is contended, first,
that the judge failed to set out what the expert evidence was and what the jury had to accept
to convict the appellant. The jury ought to have been reminded that: “today’s scientific
orthodoxy may become tomorrow’s outdated learning”; and therefore the evidence required
to be assessed with “special care”. Secondly, the jury should have been directed that the
Crown required to exclude not only any natural explanation for the injuries but also any
realistic possibility of an unknown cause. Thirdly, the jury ought to have been directed that
the Crown required to exclude the possibility that someone else had assaulted the baby,
before she had come into the care of the appellant. It is said that there was evidence that the
baby: had not been well prior to being handed over to the appellant; had not behaved
normally when in her care; and had been handled inappropriately by her older sister in the
period prior to being handed over. The final ground is that the judge erred in repelling a
defence objection to copies of two expert reports being given to the jury and, after they had
been ingathered, copies of one being given back to them. The reports were said to contain
inadmissible hearsay. They did not reflect the testimony given at trial. When giving their
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evidence, the experts had provided further explanations and made qualifications and
concessions to what was in their reports.
The Evidence in Summary
[4] GN, who was about 8 months old at the material time, is the daughter of KN and his
wife YL. They have an older daughter, who was aged 8. KN and YL operated a takeaway
shop. Carole Leung, aged 34, worked in the shop. She introduced YL to the appellant. The
appellant was to babysit GN at her own flat on 1 January 2017. She called at the shop at
about 3.30pm to pick up the baby. She was due to return her at about 9.00pm. At 9.05pm,
the appellant sent Ms Leung a text stating that her (the appellant’s) own daughter had fallen
asleep and asking if she could return the baby later. Ms Leung phoned the appellant, who
was shouting and screaming that the baby was struggling to breathe. KN, YL and Ms Leung
all went to the appellant’s house. The appellant was standing at the stair door. She was
holding the baby and saying that she did not know what to do with her. The baby was
floppy and struggling to breathe.
[5] An ambulance was called. When the baby arrived at the hospital at 10.30pm, she
was in a critically ill state. She was having seizures. She had subarachnoid, subdural and
extensive bilateral haemorrhages and an hypoxic-ischaemic injury to her brain. At the trial,
there was a joint report, from a consultant and an associate specialist in child protection and
consultants in radiology and ophthalmology, dated 1-20 February 2017. The report, to
which two of the doctors testified, recorded a history from the baby’s mother, YL, that the
baby had been “well throughout the day… and was feeding normally”. She had been
playing on a mat after a bottle feed. The appellant had left the room for about 10 seconds.
When she returned, the baby was floppy, blue and appeared not to be breathing. The
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ambulance staff had given the baby diazepam because she was “rigid”. There were no
visible signs of trauma. There had been no concerning signs in the baby’s history.
[6] The doctors concluded that the combination of unexplained collapse, intracranial
haemorrhage and bilateral retinal haemorrhages was “highly suspicious of non-accidental
injury”. The presence of apnoea, seizures and a retinal haemorrhage was “highly predictive
of abusive head trauma”. Although accurate timing was not possible, it was likely that the
injuries had “occurred sometime after she was last seen objectively to be completely well”.
The injuries were potentially life threatening and life altering.
[7] The appellant was interviewed by the police on 5 January 2017. In a passage quoted
by the trial judge in his charge to the jury, she said:
“It was about 10 minutes after she had taken her bottle. [G] was on my knee and I
was throwing her up in the air and catching her. She was fine. I did this about three,
four, five times. [G] was laughing. When I caught her, I tickled her tummy with my
nose. [G] was laughing. This is normal play that I would have with {G].”
She had said that the baby had been fine when she had picked her up at 3.30pm, apart from
having cold feet and hands.
[8] Unfortunately, much of the non-medical evidence is not covered by the judge in his
report. What follows is gleaned either from the appellant’s or the Crown’s narrative in their
speeches and the appeal papers. According to the appellant, the baby’s father, KN, who like
his wife had given evidence with the assistance of an interpreter, gave conflicting accounts
of the events on the morning of 1 January, when he had the primary care role, and in the
period prior to the appellant picking up the baby. He frequently responded to questions by
saying that he could not remember. When referred to his statement to the police, he said
that the baby normally woke between 8.00 and 10.00am. She would generally drink a 150ml
bottle of milk and sleep every four hours. He could not remember if the baby had finished
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the bottle, which he had given to her at 4.00am, or if he had told his wife that the baby had
vomited in the course of the morning. He thought that, on 1 January, the baby had slept
until 11.00am, which was not normal. He had left to go to the shop at 12.00 noon. In the
Crown speech, the advocate depute referred to KN saying, in terms of his police statement,
that, when the child had been brought to the shop at about 2.00pm, she had appeared
normal and healthy (or happy). She had not been unwell in the first seven months of her
life. She could not sit up unassisted because she was “quite a lazy natured baby”.
[9] The baby’s mother, YL, according to the appellant, had said that she could not
remember in response to many questions. Her evidence was inconsistent and contradictory
at times. She did say that the baby could sit up unassisted by December 2016. The baby
normally slept for an hour in the afternoon. On the morning of 1 January, the baby was
“normal”. She did not know if anything had happened to the baby in the morning after her
husband had left. When YL had left to go to the shop with the baby, there had been “no
problem”. The baby had been just the same when the appellant had collected her. YL could
not remember if the baby had been unwell on 31 December or 1 January. She had
previously been to the doctor. When referred to her police statement, YL said that the baby
had been a slower developer than her older sister. She had been unable sit up unassisted for
longer than 10 minutes. She had been sick on 1 January. She had had a cold and a chest
infection. She was not normally sick after feeding. She normally held her bottle with both
hands. A photograph of the baby, which had been taken by the appellant on 1 January,
unusually showed her feeding with her hands at her side. YL did not leave the baby with
her other daughter as she could hurt the baby. Ms Leung had told her that her older
daughter disliked the baby. In his speech, the advocate depute had described YL’s evidence
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as being that the baby had been happy and alert in the morning of 1 January and when she
had been picked up by the appellant.
[10] Ms Leung testified that she occasionally babysat GN between 3.00pm and 9.00pm.
The baby normally slept for an hour or two during this period. According to the appellant,
Ms Leung had said that the baby’s sister could be rough when handling the baby. She
would hold the baby’s head and pull and push it sideways. This happened on most days,
including 31 December. She had warned the baby’s parents about this. The advocate
depute referred to her evidence being that, on 31 December, when she had seen the baby
being dropped off, the baby seemed “okay” and her “usual happy self”.
[11] The appellant’s husband, namely Abdul Malek, had returned the baby to her parents
on the evening of 31 December. The baby seemed odd. She was not her normal self. She
was crying and had a rash on her face. The advocate depute told the jury that this witness
had said that he had thought that, on 31 December, the baby had been coming down with a
cold, but he did not mention that to his wife. When pressed, he had not thought that there
was anything wrong with the baby.
[12] According to the baby’s GP, she had had not suffered any serious illnesses. Her
development had been normal. She was meeting all the milestones.
[13] The baby’s injuries were reviewed by two experts from England, namely: Mr Peter
Richards, a retired paediatric neurosurgeon; and Mr William Newman, a consultant
paediatric and neuro-ophthalmologist. The trial judge quoted from Mr Richards’ report,
when directing the jury on his evidence as part of the Crown case, as follows:
“There is nothing to suggest any delayed deterioration following her head injury.
Rarely, patients after apparently minor head injury can get progressively worse so
that what was originally thought to be a minor head injury turns into a serious,
perhaps even fatal one. The usual cause is a large blood clot in the head which as it
grows compresses the brain further and causes damage. No such cause was
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apparent in this case. In such cases the period between the injury and loss of
consciousness due to the secondary effect is known as a ‘lucid interval’. However, in
lucid interval cases there is normally a gradual drift towards coma and it is for this
reason that head injuries are admitted to hospital for observation so that if they
deteriorate something can be done about it. Lucid interval cases show some of the
effects of head injury, including irritability, nausea and headache and then gradual
deterioration before things become critical. They do not go from complete normality
to critically unwell. This would indicate, on the basis of all descriptions of [G] being
normal and feeding normally until her acute deterioration, that the point of injury
was the point of acute deterioration.”
[14] Mr Newman’s report of 28 January 2019 was also quoted by the trial judge as
follows:
“In the absence of an identifiable medical condition or history of significant trauma
the retinal haemorrhages identified in [G] remain unexplained but would be most
consistent with those found following a shaking type injury likely having occurred at
or around the time she became unwell on 1st January 2017.”
[15] The appellant, who was 26 at the time of the incident, gave evidence. She denied
shaking the baby. She had looked after her on four successive days. The advocate depute
maintained to the jury that her consistent position had been that there had been nothing
wrong with the baby, including when she had picked her up. When she returned home, the
baby had taken a feed of 20 ounces. Her temperature was normal and she had no concerns
about her. According to the appellant, she had testified that the baby had been sleeping
when she had collected her on 1 January. She had had to wake her up to feed her. She was
still sleeping when the appellant got home at 5.00pm. She took less than half a bottle, which
was not normal. She had taken the photograph of the baby, who was not holding onto her
bottle as she normally did.
[16] The baby had gone back to sleep and awoke about 8.30. The appellant gave her
another bottle, but she could not recollect if she had finished it. She had played with the
baby, who had given her an “on off smile”. She had put the baby onto a play mat and she
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had fallen to her right. She had not seen her fall before. She put down pillows and soft toys
for her. She went into the bedroom to attend to her own daughter. When she returned, the
baby had fallen onto her right side again. She picked her up. Her hands and feet were
floppy and she was struggling to breathe. She had been concerned that the baby’s hands
and feet were really cold (the advocate depute did not accept that this had been her position
in evidence). She had not reported the existence of any concerns to Ms Leung, when she had
arrived with the baby’s parents, or to the police, when they had arrived.
The experts in more detail
Mr Richards
[17] When Mr Richards had been giving his evidence, by live link from England, the jury
had copies of his 24 page report to assist them in following his testimony. The report
referred to the information which he had been given, including a transcript of the
appellant’s police interview and various statements from the ambulance staff and the baby’s
health visitor. It repeated what had been noted in the medical records following the baby’s
arrival at hospital. It covered the results of the CT and MRI scans and many other
investigations which had been carried out in the hospital. Mr Richards was taken through all
of this in considerable detail in examination in chief.
[18] Fresh blood had been found on the baby’s brain (subdural haematoma), which was
no more than ten days old but could have been only ten seconds old. It was a marker for
what the problem had been. The tests had been done to see if there was anything, other than
a head injury, which might have caused the presence of fluid. No diseases had been found.
The tests could not eliminate unknown causes, but they did eliminate the known ones. The
only positive things that had been found were:
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“things in the brain and the eyes that shouldn’t be there and no explanation for them
being there, and in the absence of these things being there they’re all known to be
associated with a recent head injury. So that would be my working diagnosis, a
recent head injury.
…Or something completely unknown. Or something completely unknown… but…
for practical purposes this was a head injury.”
There were five factors: sudden onset encephalopathy; subdural bleeding; subarachnoid
bleeding; retinal haemorrhages; and traumatic effusion. All were consistent with a head
injury. There was no other explanation. There was a theoretical unknown, which could not
be discounted, but doctors had known about head injuries and diseases for centuries so it
was unlikely to have been the cause. The features were consistent, in the absence of any
evidence of specific trauma, with what was known as “shaken baby syndrome”, occurring
as a result of a momentary loss of control on the part of the carer. There was nothing
plausible, which had been “put forward and accepted by mainstream medical opinion to
explain the features similar to [G’s] presentation other than injury”.
[19] In relation to the level of force involved, Mr Richards said:
“…[W]e can see these types of injuries in car crashes, it doesn’t mean the forces are
exactly the same because cars, in injury terms, crash slowly, their bonnets crumple
and things. Whereas in theory a shaking is fast. But we do see them in those sorts of
things. We do see similar things in children who fall down stairs with carers, or out
of windows with carers. We don’t see them in children who fall out of domestic
beds, for example, or sofas, a minor domestic trauma, as I would call it. So the force
must be somewhere between the two. It is thought, but not proved, but widely
accepted amongst mainstream doctors, who look after infants like this, that the kind
of force is such that a witness would say “stop, don’t do that, you’ll hurt the child.”
Throwing a baby up and catching her in the course of normal play would not cause this. If it
did, then the child would become immediately unwell. A “low level topple” would not
cause it either.
[20] Mr Richards continued:
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“It’s a cardinal feature of any head injury… that there is a change at the moment of
head injury. At its most mildest, if you bang your head on the cupboard door you go
‘ow’ at the moment you bang your head. You’re not fine for ten minutes and
suddenly go ‘ow’ … Whenever there is a head injury there is a change, if it’s so
severe you go unconscious straight away, if it’s mild you may not be unconscious
but there’s still… a change, you know, there’ll be pain. Subarachnoid blood causes
pain, they’ll not be feeling right. So if, as described, there was normality and it’s
dependent upon an accurate picture from the carer, but if there’s normality and
playing and laughing and crying and interacting, giggling and interacting after this
play, I don’t believe that injury could have occurred… But as described to me, when
the childminder left there were no concerns and when they came back, the child was
collapsed. So if that’s correct… the clinical change is likely to be the point of injury.
… If this was a lucid interval case, I would think it’s likely that there would have
been concerns, something is not right, the baby is not feeding, they’re vomiting,
they’re just really sleepy, they’re not playing, they’re not interacting, which is not the
story I was given when I wrote this report. So I don’t think it … and also, there’s no
big blood clot, no reason for a lucid interval in the imaging and so forth.”
[21] In cross-examination, Mr Richards was referred to the relatively recent discovery
that, contrary to previous thinking, many babies have subdural bleeding at birth. Various
propositions were put to Mr Richards, including that the nature of the baby’s birth may have
been a contributing factor to what happened and the baby’s parents had thought that she
had been developmentally slow. He accepted that his opinion might change, if the history
which he had been given had not been accurate. He would have been concerned if there
had been a radical change in a baby’s feeding pattern or the baby was not holding her bottle
as she normally did or the baby had been repeatedly “impressively sick”. Cold feet in an
otherwise normal baby would not be a cause for worry. Cold peripheries in a collapsed
baby were different. If some of the retinal haemorrhages were older than the others, it was
possible that the baby had been shaken more than once. That might explain why her
development was thought to be slow. The clinical signs in this case had all been fresh,
recent and not caused weeks beforehand. The situation in which the baby’s head had
previously been seized and shaken was put to Mr Richards, but he said that that still left the
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collapse on the day. He accepted that, if the account which he had been given had been
wrong, and the baby had not been right during the day, then that was a “different
ballgame”. If the account given by the parents could not be relied upon, the prior picture
would not be there. If an eight year old had been using a baby bouncer as a catapult, that
could have caused the injuries, but, in that event, significant change at the time would have
been expected.
[22] In re-examination, Mr Richard again accepted that his view might change if the
history which he had been given had been “totally wrong”. He continued:
“If… it is established and the court accepts that a couple of minutes before the
collapse, the baby had fed, was interacting normally, seemed fine, you know,
nothing causing any concern, was left for a few moments and then collapsed, I do not
think that any earlier events could have done this. If it comes out that actually this
was an unwell baby through the day and getting worse and didn’t feed just before
they became unwell, that’s a different story. But if the story… ends up being similar
to what… was presented to me in the papers which I was sent then I remain firmly of
the opinion that I have given.”
Mr Newman
[23] Mr Newman also gave his evidence by video link from England. His report, which
ran to some 61 pages, was distributed to the jury. He was taken through it in considerable
detail by the advocate depute, especially in relation to the hospital’s ophthalmic specialist’s
clinical findings and the retinal photography. Mr Newman referred to the need, in cases
such as GN, to ask a specialist to take a look at the back of the eyes. When that was done on
4 January 2017, extensive haemorrhages were found throughout the whole of the back of
both eyes and on different layers of the retina. There was no history of any naturally
occurring disorder, underlying medical condition or disclosed history of trauma which
could have explained the findings. In these circumstances, these types of haemorrhages
were what were seen following a shaking type injury. They were most consistent with that
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having occurred. The shaking would have happened around the time that the baby became
acutely unwell. Whatever caused the haemorrhages would have caused a change in her
visual behaviour. She had also suffered a hypoxic-ischemic injury, which was specifically in
the area of vision. If that had occurred at the same time, it would have been clear to a parent
that there was a problem with her vision.
[24] There was vast experience of children’s eyes being looked at, from 24 weeks
premature onwards, to see if minor falls could cause retinal haemorrhages. There was a
potential gap in medical knowledge because not every child, who is brought into A & E or
who has fallen off a sofa, has a retinal scan. However, Mr Newman and his colleagues each
saw between 20 and 60 children, who were under the age of one year, three or four times
every week. They did not find haemorrhaging unless there was an explanation. Most of the
gap had been filled by both clinical experience and systematic reviews by senior clinicians.
Haemorrhaging could be caused at birth, but even traumatic haemorrhaging would have
resolved within two to three weeks. If the baby had had haemorrhages which had persisted
for eight months, she would have had very abnormal visual behaviour, which someone
would have noticed. It was not possible to time the haemorrhaging or to state whether it
was all caused on one occasion. In conclusion, it was very unlikely that accidental trauma,
of a type which would normally occur at home, or falling from a sitting position, would
result in the baby’s haemorrhages. Although accidental trauma did cause retinal
haemorrhaging, it would be exceptional to find that which had been found. It could not be
caused in normal handling or play.
[25] Tests had eliminated known natural causes, each of which was considered in some
depth in the examination in chief. In relation to unexplained medical conditions,
Mr Newman said:
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“Well this is simply keeping an open mind of the fact that not everything in medicine
can be explained. So we have situations where we have a particular set of clinical
features which defy explanation at this particular time. But maybe later we’ll find an
explanation, either because of genetics or other testing. So one has to keep an open
mind there may be other explanations present for which we, as yet, do not know
about…
…I don’t think that it’s more than a theoretical possibility. [GN] has been extensively
investigated, clearly you don’t know what you don’t know… One has to interpret in
the light of known neuroradiology, surgical opinion et cetera…”.
He later continued:
“… I’ve been through differential diagnosis and… I’ve not found any cause for
retinal haemorrhages. … [T]hey’re not related to birth, the fitting, any vomiting,
raised pressure… minor trauma, immunisations or a fall from a sitting position. She
has been extensively examined and not found to have any underlying medical
condition. And to date I’ve not found any history or clinical examination… of the
eye to suggest an inherited or born-with abnormality. My conclusion is in the
absence of a disclosed history of accidental trauma… the haemorrhages remain
unexplained [and] are in my opinion most consistent with that that we see following
a shaking type injury. I’ve described how I think that type of shaking type injury
might occur and that picking up a child and shaking a child in that manner for a
short period of time… would likely to be sufficient to generate the retinal
haemorrhages. And such behaviour… would be abnormal and obvious to an
independent bystander and the perpetrator that they were doing something that they
shouldn’t be.”
[26] Cross-examination focussed on the dependence on an accurate history and the fact
that a perpetrator would not want to be truthful or would claim that they could not
remember how the baby was acting. There had been no comment on visual activity in the
period after the baby’s admission to hospital until 4 January. From a purely ophthalmic
outlook, the haemorrhages could have been caused on 30 or 31 December 2016 and they
could have been caused on more than one occasion. However, the haemorrhages would
result in a change in visual behaviour and the brain injury would cause an even greater
change. The baby’s method of holding a bottle or the fact she fell over did not indicate a
visual problem.
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Speeches and charge
Crown
[27] The advocate depute’s approach focused on the evidence that the injury which the
baby had suffered would have had an immediate and obvious impact on her. If that was
correct, there was only one person who could have assaulted her. He founded heavily upon
the evidence of the two independent experts, which he said pointed to the inevitable
conclusion that the appellant had been responsible for the “shaking injury”.
Defence
[28] Early on in the defence speech, which was of considerable length, there was
reference to the moveable feast of changing medical knowledge, especially in relation to the
extent of retinal haemorrhaging at birth. The appellant’s previous good character as a kind,
gentle parent was prayed in aid. There were no outward signs of trauma. The photograph
of the baby, which the appellant had sent to her sister at just after 9.00pm, offered no
explanation as to why the appellant would suffer a sudden loss of control. The defence
founded on the consistency of the appellant’s story that there had been nothing wrong with
the baby earlier that evening. That consistency was to be contrasted with the evidence of the
baby’s parents, who had said 488 times: “I can’t remember”. One question was why there
had been no investigation into their changing accounts. They had lied by omission and the
jury ought to ask themselves why they were lying.
[29] The innuendo was that the baby’s father’s account to the police suggested that the
baby had been “getting on his nerves”. There was an attack on the father in relation to him
saying “no comment”, when he had been interviewed as a suspect and asked what his
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thoughts were on the disciplining of children. There was criticism of both parents being
“reliant on all sorts of babysitting arrangements” and the absence of evidence from the eight
year old daughter. The father was said not to have looked upset at the hospital. His “baby
was not his main priority that night, his priority was getting a story straight… to protect
himself”. “His reaction in court did not impress as someone who was a caring vigilant
attentive father”.
[30] The mother was attacked for saying that the birth of GN had been without
complications when there had been an emergency caesarean section. Conflicts with what
was in her statement to the police, when she was interviewed as a suspect, were highlighted.
This was designed to discredit the evidence of the parents that the child had been happy
before being picked up by the appellant. There were repeated references in the speech to the
“can’t remember replies”. The baby’s mother’s attitude was described as “totally cavalier”
in relation to a previous episode when the baby had to be taken to hospital.
[31] The defence turned to the evidence of Ms Leung about the baby’s 8 year old sister’s
handling of her. She seemed to “hold [her] head and shake it… most days”. Ms Leung had
told the baby’s parents but, according to the defence speech, the parents did not seem to
have done anything about this. The speech continued:
“I suggest to you the only people who spoke with any real warmth and affection to
[G], unbelievably…was [Miss Leung] and [the appellant].
[The appellant’s] account of what happened at the point [G] became unwell, I say to
you hasn’t changed from the first moment the [G] became… unwell. Despite…
bullying from the police. It seemed to swing between bullying and then entreaties to
just tell us it was an accident. To which she maintained, “I did not do it, I did not
harm her, I’m trying to help you”.
The defence maintained that there were double standards. There was evidence pointing
away from the appellant which the Crown had swept under the carpet.
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[32] In relation to the two experts, the defence approach was to suggest that they had
been given the wrong information or “a fraction of the whole story”. It was explained that,
although the jury had Mr Richards’ report, they did not have his cross-examination or re-
examination, “so don’t think that the report was all he said”. The appellant covered those
parts of Mr Richards’ testimony which might have been regarded as favourable to the
defence. The first was that he had accepted that he had relied on the information which he
had been given, including the normal nature of the baby’s birth and that she had been
happy, alert and interacting when handed over to the appellant. These elements had
“gone”. When Mr Richards had spoken of the fresh blood in the haemorrhaging, as he
described it in his report, he had said in his evidence that it might have been ten days old.
Although he had said that one forceful shake could have caused the injuries, no-one knew
for certain. The problem was that Mr Richards’ opinion depended on the accuracy of the
parents’ account of normality and they could not be relied upon. There was evidence that
the baby was sleeping too much, had been sick and had freezing feet and hands. Neither
expert could rule out the occurrence of two episodes. They accepted that the injuries could
have been caused by another child.
[33] On Mr Newman, the appellant stressed that retinal haemorrhages could not be
accurately timed. In all of this, the appellant told the jury that they had to be more careful
than in the normal case because:
“…we just don’t know. There is no black and white. These cases confuse lawyers and
doctors, they get argued about up and down the country…”.
Charge
[34] The judge’s charge was relatively succinct. He gave the standard directions on the
jury’s function in relation to evidence; that it was the jury’s task to decide what evidence to
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accept. It was the jury’s recollection of the evidence which counted. If the jury believed the
evidence of the appellant, which absolved her from guilt, or they had a reasonable doubt
about it, the jury had to acquit. The judge turned to the experts, whose evidence of opinion
was admissible because of their specialist knowledge. He continued:
“Since the opinion of an expert witness is based on a certain set of facts, it is of no
value unless those facts are proved. It can sometimes happen, that an expert witness
forms a view before the trial based on alleged facts presented to him at the time, such
as witness statements, which, in the course of the trial are not proved, or may even
be contradicted. If that happens, the foundation on which the opinion was based has
disappeared and the opinion becomes of no value.
Moreover, in one sense, you the jury have an advantage over any expert witness in
that you have heard all the factual evidence in this case, particularly the evidence of
the parents of baby [G] and of the accused. And you are able to assess any expert
evidence in light of the whole facts which you find have been proved.”
[35] The trial judge explained that, whereas in some cases there were competing opinions,
there was no dispute between the experts in this case, although it was still up to the jury to
decide whether to accept that evidence. The judge said:
“In this case, you are dependent upon the evidence of the relevant medical experts
for proof that baby [G] was assaulted and that it was the [appellant] who assaulted
her. So, you could not convict unless you accepted the evidence of the relevant
medical experts, to which I shall refer briefly, later on”.
[36] The judge dealt with other matters before describing, first, the Crown case as follows:
“There are really, you may think, three chapters of evidence that you have to look at.
First of all, what was [G]’s condition up until she took seriously ill after 9.00pm on
Sunday 1st January 2017. Was it, as the Crown say, that she was behaving normally,
or was it not?
Secondly, what was her condition after she took seriously ill…
And the third chapter is, what caused [G] to become seriously ill. In particular, have
the Crown proved that it was an assault by shaking on the part of the accused”.
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[37] In relation to the first chapter, the judge mentioned the evidence that the baby had
not suffered from any serious illnesses in the past. He referred to the parents’ testimony and
to the appellant’s statement in her police interview (supra), from which he quoted, to the
effect that the baby had been “fine”. On that basis, the jury could find that the baby was
behaving normally up until the point at which she became seriously ill. The judge
continued:
“The real question is, in the third chapter, what caused [GN] to become seriously ill.
That’s the crux of the case. Have the Crown proved that it was an assault on the part
of the accused?”
The jury were reliant on the medical evidence on this; the two experts and the doctors who
spoke to the joint report.
[38] The trial judge read out the conclusions of the two experts as set out in their reports
(supra) and said:
“Well, … do you accept these opinions as expressed by the doctors and in light of the
cross-examination of them by [counsel for the appellant]? It is only if you do accept
their opinion that these were shaking injuries caused at the time of acute
deterioration and are satisfied that the shaking amounted to an assault that you
could convict the accused, but that, in a nutshell, is the Crown case. It relies
principally on the evidence of Mr Richards and Mr Newman, and has some support
from the other treating doctors.”
[39] The trial judge turned to the defence case. This pointed to the appellant’s previous
good character. It was not for the appellant to prove how the baby had come by her injuries.
The appellant had engaged in a broad challenge to the credibility and reliability of the
baby’s parents. The judge asked the jury to consider what the purpose of that had been. If it
was to demonstrate that the baby had some form of underlying condition, the experts had
not accepted that. The appellant in her police interview and her testimony had said that the
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baby had been fine until she became seriously ill. If the parents were being accused, then no
incrimination had been lodged to suggest that they, or anyone else, had been to blame.
Submissions
The appellant
[40] The appellant submitted that each of the four grounds of appeal (supra para [1]) were
interlinked. It was accepted at the outset that the circumstances differed from those in
defence had been that the child had not been well when handed over to her. Medical
science was changing and there was a real possibility that something unknown had caused
there the dispute was on fact and not opinion. The judge ought to have provided the jury
with a route to verdict (Hainey v HM Advocate 2014 JC 33 at para [52] citing R v Henderson
(Practice Note) [2010] 2 Cr App R 24).
[41] The case was unusual in that there were no physically observable injuries. The
Crown case had been based on the evidence of the two experts, which had been complex.
The jury had been provided with copies of their reports, which the advocate depute felt
obliged to go through with them. The trial judge had referred to the reports in his directions
to the jury. That was not a criticism, but he had gone on to say that the position of both
parties had been that the child had been fine. He had referred to the appellant’s police
statement but had not made any mention of the qualifications to it in her testimony. He did
not direct the jury that they had to take into account the contrary evidence which she had
given; that the baby had slept more than had been normal and had not held her bottle as she
had done previously. The child had not sat up properly. The evidence of the parents, which
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often consisted of a failure to remember, had not been covered in the charge. The judge
ought to have directed the jury that, if they held that the baby had not been behaving
normally when handed into the appellant’s care, they would have to exclude the possibility
of a prior assault.
[42] The trial judge had given the jury no indication about the differences between the
experts’ reports and their testimony. The jury had not been given assistance on what to do
with the major criticisms which had been made of the experts’ view. Although they had
maintained that the collapse had occurred immediately after the catastrophic event, neither
could rule out that there had been some cause of which medical science was unaware. This
had been a live issue, but it had not been mentioned by the judge. There was a real
possibility of this. Where the evidence was complex, the judge required to assist the jury.
The problem was that the jury had been left with bits of paper, rather than relying on their
recollection. As distinct from testimony, they could read and re-read the reports. The judge
should have made sure that the jury were not just doing this but were considering the other
evidence.
[43] There had been evidence that the baby had not been well before her collapse. There
was the temperature of her extremities. There was evidence of how she had been handled
by her sister. The evidence of the parents had been difficult. In order to get to the point at
which they said that the baby had been “fine”, they had to be referred to their statements to
the police. The judge had not directed the jury on these matters. The judge’s criticism of the
lack of an incrimination was misplaced. An incrimination was not appropriate as there had
been no direct evidence that anyone else had caused the injuries. The defence was that, if
there had been an assault, it had not been by the appellant. Therefore it must have been the
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parents or the sister. The judge had confined himself to saying that the evidence had been
that the child had been “fine”.
[44] It was unusual for complex medical reports to be given to juries for their retention.
There was a danger of the jury concentrating on what had been given to them. The expert
testimony could have been given with the reports being displayed on a viewer, rather than
being distributed. The reports contained references to hearsay which did not properly
reflect the testimony of the witnesses. There was a risk that the jury would have
concentrated unduly on the written summaries of the witness statements, which were
contained in the reports, rather than what had been said in court. Similarly, they would
have concentrated on the quotations from the appellant’s police interview, rather than her
testimony.
The respondent
[45] The advocate depute maintained that the extent of the duty on the trial judge to
address the evidence in his charge was primarily a matter for his or her discretion in the
had been no controversy about the medical evidence in this case (cf Liehne v HM Advocate
(supra) and Hainey v HM Advocate (supra)). The defence was that the factual basis for the
opinions had been incorrect. It was for the judge’s discretion to decide how to deal with it
(Younas v HM Advocate (supra) at para [56]). The trial judge had set out the expert evidence
clearly and had provided a route to verdict under reference to his three chapters. The
Rumsfeldian1 analysis on the difference between an unknown unknown and, as in Liehne, a
known unknown, pointed to the former being theoretical at best. The judge’s charge was
1 US Secretary of Defense Donald Rumsfield’s news briefing on Iraq dated 12 February 2002
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consistent with the approach that a jury must reach a decision on the current state of
knowledge. Considering how matters might develop in the future was speculation (see Jury
Manual: Skilled Witnesses and Expert Evidence page 36.4; Carroll v HM Advocate [2015] HCJAC 75
at para [19]). The experts had been extensively cross-examined and their evidence had
been referred to throughout the speeches. The jury would have been clear about the live
issues.
[46] It was accepted that the jury would have had to have been directed to exclude any
realistic possibility of an unknown cause. There was no contention that there was any
natural explanation or that there was a non-accidental cause. The focus was on timing. The
defence had not said that there had been an unknown cause. There had been evidence of a
series of intensive tests and assessments, which had been carried out to exclude other
possibilities. The experts had concluded that the injuries had been caused by shaking.
There was a cogent body of evidence from which the jury could exclude other causes and
hold that shaking was the cause (Smith v HM Advocate 2017 JC 54 at paras [34-38]). There
was no realistic possibility of an unknown cause and no direction on that was required. The
difficulty for the defence was the appellant’s consistent position that the baby was fine. The
was not bound to direct on the possibility of another assailant when there was no evidence
of this.
[47] The experts had given evidence by live link. Using the viewer and creating a split
screen for the jury would have resulted in the jury not being able to follow the report as the
letters would have been too small to read. The reports had correctly set out the information
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upon which the experts’ opinions had been based. Neither made any material qualification
to his opinion during his evidence. The status of the factual basis of the opinions was made
clear by the trial judge. It would have been clear to the jury that they had not only the
reports but also the testimony of the experts. There was no basis for supposing that the jury
would focus on the written reports and not the whole evidence of the witnesses. There was
no material in the reports which was calculated to prevent a fair trial (cf Grant v HM
Advocate 1938 JC 7 at 10). The fact that the jury had copies of the reports would have had no
Decision
[48] In several recent cases, including D’Arcy v HM Advocate [2013] HCJAC 173 (at
2015 JC 180 (at para [55]), the court has explained that there is no requirement on a judge to
rehearse the evidence in the case. It is primarily for the parties to address the jury on what
parts of the evidence they maintain are, or are not, significant and to make submissions on
credibility and reliability, where appropriate. The trial judge may elect to comment on
certain aspects of the speeches, but he or she does not “require to conduct an independent
audit of the evidence in order to extract all the main points which he considers might be
regarded by the jury as favouring one verdict or another” (Younas, LJC (Carloway),
delivering the opinion of the court, at para [56]). It is true that the judge requires to charge
the jury in such a manner that will make the jury’s verdict intelligible. The provision of a
specific route to verdict will be desirable in order to achieve this. For example, in cases
where there has been competing expert evidence of a complex technical nature, the judge
may require to give the jury some guidance on how to approach that evidence; to provide a
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“framework which allows them to proceed to a verdict by a reasoned process” (eg Liehne v
HM Advocate 2011 SCCR 419, LJG (Hamilton) at para [47]). In less complex cases, the route
to verdict will be relatively self-evident.
[49] This was not a complex case. There was no competing expert evidence. The
evidence of the two experts was, if not straightforward, easy to understand. Complexity is
not to be gauged purely by reference to the time which it took for the experts to be examined
or cross-examined. It is analysed by reference to what the experts actually said. In this case,
the summary which the trial judge repeated to the jury from the conclusion sections of the
two reports amply outlined the experts’ positions. In Mr Richards’ opinion, since there was
no natural disease or history of trauma to explain the injuries, and the baby was reported as
behaving normally up until the point of acute deterioration, the injury was caused at that
point. This was not a lucid interval situation because that would have involved a gradual
deterioration and not a sudden critical decline. Mr Newlands’ view was that, “in the
absence of an identifiable medical condition or history of significant trauma the retinal
haemorrhages… would be most consistent with those found following a shaking type injury
likely having occurred at or around the time [the baby] became unwell”. Both experts
reached the same conclusion having regard to their knowledge in their own particular
specialisms.
[50] There was no significant departure by either expert from their conclusions in the
course of their testimony. It was, of course, an important factor in reaching that conclusion
that the accounts of the baby’s condition in the hours before the collapse were that she had
been behaving normally. Each expert accepted that, if there had been a body of evidence
which demonstrated that the baby had been in some form of decline, that might make a
difference. The trial judge gave the jury clear directions on this. As quoted above, he
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explained that sometimes the facts upon which an expert had expressed an opinion turned
out not to be correct. In that event “the foundation on which the opinion was based has
disappeared and the opinion becomes of no value”. The judge could hardly have been
clearer.
[51] Having said that, the trial judge directed the jury that, for a conviction, the jury were
“dependent upon the evidence of the relevant medical experts”. The judge provided a clear
route to verdict. For a conviction, the jury had to accept the evidence of the experts and that
depended upon the jury finding that, as the appellant’s parents, and the appellant herself at
police interview, had said, the baby was “fine” before she came into her care. The judge had
already directed the jury that, if they accepted the appellant’s evidence, that she had not
shaken the baby, or had a reasonable doubt about it, they required to acquit. It follows that,
if a conviction resulted, the jury must have accepted the evidence that the baby had been
fine before coming into the appellant’s care and thus rejected the suggestions, based upon
somewhat flimsy foundations that the baby was in some way deteriorating or was otherwise
unwell. They must have accepted the fundamentals of the experts’ opinions and rejected the
appellant’s version of events, as given in the witness box, that, inter alia, she had not shaken
the baby.
[52] There was no requirement to give the jury a direction concerning the theoretical
possibility that some time in the future medical science might uncover another cause of the
haemorrhages. There are references in both Liehne v HM Advocate (supra, LJG (Hamilton) at
para [48]) and Hainey v HM Advocate 2014 JC 33 (Lord Clarke at para [52]) to R v Henderson
(Practice Note) [2010] 2 Cr App R 24 and the need to exclude the “realistic possibility of an
unknown cause” because “today’s orthodoxy may become tomorrow’s outdated learning”
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(supra Moses LJ at 217). In a case such as the present, where there was clear evidence (if
accepted) of the cause of the baby’s injuries:
“the jury must reach a decision on the current state of scientific knowledge, and to
consider how matters might develop in future is mere speculation” (Carroll v HM
Advocate [2015] HCJAC 75, Lord Drummond Young, delivering the opinion of the
court, at para [19]).
The suggestion, which was developed by counsel from the general and inevitable
concessions made by the experts that it was always possible that a new cause might be
discovered in time, amounted to no more than speculation. As the experts both explained,
this was a well-trodden area of medical practice. The jury ought not to have been distracted
by the theoretical notion of an entirely new cause of haemorrhaging being found in the
future.
[53] There was no requirement for the judge to give the jury a specific direction on the
need to eliminate the possibility that someone else had shaken the baby some time before
she had been handed over at 3.30pm, more than 5 hours before her collapse. Quite apart
from the absence of any evidence that either the parents or the baby’s eight year old sister
had done anything to cause the child substantial injury, the essence of the case as advanced
by the experts was that the injuries had been caused at the same time as the collapse. If the
jury did not accept that hypothesis, which was explained in detail to them, they would have
been bound to acquit. That was the only basis upon which the Crown case proceeded. In
these circumstances, there was no misdirection of the jury and the first three grounds of
appeal fall to be rejected.
[54] In a system which developed at a time when the copying of documents was difficult,
it was unusual to provide the jury with copies of any productions other than, and even then
relatively recently, photographs. Testimony would be given about the principal productions
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without them ever being handed to the jury, although that might be done if a production’s
appearance was a relevant fact. Experts would give evidence orally without their reports
being shown to a jury. Although, as a matter of fairness, they may have been disclosed to an
accused’s representatives, they did not require to be productions in order for the expert to
testify to their content. In times when trials were much shorter, the expert could be
permitted to hear the testimony about the facts before expressing his or her opinion on them
(see Criminal Procedure (Scotland) Act 1995, s 267(1)). As copying became easier and
cheaper, the provision of physical copies of important items to the jury became
commonplace. Alternatively, more recently, the use of a viewer has enabled the jury to
follow the questioning of witnesses more easily. In the modern era, with the digitisation of
material, seeing the relevant document on screen may become more prevalent.
[55] Whether an expert report should be shown, or given, to a jury is a matter to be
determined by the trial judge having regard to whether it will assist the jury in following the
testimony of a witness or, if the report is retained by the jury or requested during their
deliberations, in reaching their verdict. Whether copies of the document should be given to
the jury, as distinct from being displayed on a viewer, is a question of convenience. The
advocate depute has explained why that was not practical (although no doubt it was
possible) in this case when the witnesses were testifying by live link. The principle of
fairness will, as always, apply. Given that the advocate depute elected to trawl through the
entirety of what were extensive and detailed reports, it was entirely reasonable to distribute
copies of them to the jury in order to assist them in following the testimony.
[56] If a report contains material which is either inadmissible or unnecessarily prejudicial
to an accused, care must be taken to excise that material from any copies of the report which
are to be shown to the jury. The problem was illustrated in Grant v HM Advocate 1938 JC 7
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where a doctor, who was speaking to the treatment of a child who had allegedly been
poisoned, had incorporated a statement from the child’s mother in his report. The report
said that: “She said that her husband had done it”. That is what the mother said in evidence
but the statement in the report was inadmissible as hearsay. The Lord Justice Clerk
(Aitchison) said (at 10):
“A practice has been growing up in recent years of medical men putting into their
reports, which are often made productions in criminal cases, statements which are
made to them by third parties, and these are sometimes read to the jury when the
reports are put in evidence. In some cases this may be difficult to avoid… But in all
cases the utmost caution must be exercised to see that no statement which is hearsay
in a medical report is disclosed to the jury if it is calculated in any way to prejudice
an accused person, and especially so where there is a real issue as to whether the
accused person committed the act with which he is charged…”.
That dictum is undoubtedly sound. A statement which is otherwise inadmissible cannot be
introduced by subterfuge.
[57] In this case, first, the statements which the appellant had made during her interview
by the police were admissible and therefore could be referred to. Secondly, since the experts
were not present in court when the witnesses of fact were giving their evidence, the only
way in which their conclusions could be tested was for the jury to understand what the
bases for their conclusions were in order to follow the experts’ reasoning. That could only
be done by the experts stating what they understood the state of the baby to have been in the
hours and days before the hospital admission. It might have been better if that had been
done as a straight narrative of events, rather than by attributing particular facts to identified
witnesses. That too might have had difficulties in a situation in which the occurrence of
these events was challenged. The evidence of the content of the witness statements as
reviewed by the experts was admissible in order to understand the basis for their
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conclusions. It was evidence of the information upon which these conclusions were based,
rather than of the truth of the statements’ content.
[58] In any event, no miscarriage of justice could have arisen in respect of the inclusion of
the statements in the reports. These were, for the most part, used in the course of the
examination and cross-examination of the witnesses, notably the baby’s parents. The
discrepancies, such as they were, between what the experts understood the position to be at
the stage of preparing their reports and the evidence in court was fully explored by the
appellant’s counsel in the course of her speech to the jury. The trial judge gave the jury
appropriate directions on hearsay statements and how they could be used. This ground of
appeal accordingly fails.
[59] The appeal is refused.