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>> APPEAL AGAINST CONVICTION BY SI AGAINST HER MAJESTY'S ADVOCATE  ScotHC HCJAC_28 (23 June 2020)
Cite as:  ScotHC HCJAC_28,  HCJAC 28
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
 HCJAC 28
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
APPEAL AGAINST CONVICTION
Appellant: Moggach; Faculty Services Limited
Respondent: Prentice QC, AD; Crown Agent
23 June 2020
The appellant was convicted of assaulting his baby daughter on various occasions
between 30 May 2017 and 17 July 2017 by inflicting blunt force trauma to her head and body
by means to the prosecutor unknown causing her severe injury and permanent
disfigurement. A critical date was 30 May 2017 when the child was (a) in the sole care of the
appellant; and (b) admitted to hospital with serious injuries. These included bruising to her
right cheek, forehead and right knee area; a bleed on the left front side of the brain with
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contusion of the frontal area; and a sub-conjunctival haemorrhage in right eye. The
appellant said the child had fallen from a sofa whilst momentarily unattended. That
possibility was not supported by the medical experts, the child being a "non-mobile infant"
whose prematurity gave her at the time the development of a 2 day old child.
The child was subsequently admitted to hospital on 12 July when a cranial
ultrasound revealed a fluid collection consistent with the changes seen on the original scan,
showing a significant bleed with pressure on the underlying brain. The diagnosis was of a
chronic subdural haematoma causing a degree of raised intracranial pressure. A non-
accidental injury, particularly forcible shaking, is the commonest cause of such an injury.
These findings were in the opinion of a consultant paediatric neurosurgeon most likely a
natural progression of the acute subdural haematoma identified in May 2017, and the result
of a single event occurring on 30 May 2017.
X-ray imaging of the chest on 17 July showed healing rib fractures of the 6th to 8th
ribs on the left side. Whilst an earlier X-ray on 31 May had shown no fractures, there was
some indication of swelling around the lung in the same area as the subsequently detected
healing fractures, consistent with the rib fractures having been present at that earlier date.
Retinal haemorrhages, a common finding in baby shaking cases, were identified on
18 July. Ophthalmic evidence suggested that these were likely to have been caused within
two weeks prior to that date.
There was evidence that the precise dating of injuries was difficult, and that the
bleed in the brain identified in May, and the rib injuries, could have occurred up to about 10
days prior to the first admission to hospital.
The appellant did not give evidence. In a statement to police and a subsequent
recorded interview he maintained his earlier account that the child had rolled off the sofa. It
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was submitted that it was the appellant’s “position” that the serious injuries could have been
caused when the child was looked after by someone else. However, there was no evidence
to suggest that this might be the case. In both his police statement and subsequent interview
the appellant, asked what might be the two incidents causing the injuries referred to the
incident of 30 May saying “that’s the only one”.
xcluded the child’s mother or maternal
grandparents as having been likely to cause any injuries to the child, and named no other
person as having any caring role for the child at that time.
Submissions for the appellant
In the case and argument and subsequent submissions it was stated that it was
accepted throughout that the child had sustained non accidental injuries but that these had
not been caused by the appellant. What this amounted to was that it seemed to be accepted
that the rib injuries, and sub-conjunctival haemorrhage were non accidental, but these could
have occurred prior to the 30 May. Insofar as any injuries were deemed to have occurred on
30 May, notwithstanding the preponderance of evidence, it was maintained that these must
have been sustained accidentally. It was accepted that the retinal haemorrhages were classic
signs of shaking and thus non-accidental.
It was accepted that there was a sufficiency of evidence against the appellant in
respect of the charge as a whole. The sole basis of the appeal was that on page 22 of his
Charge to the Jury the trial sheriff stated:-
the medical evidence does not rule out the possibility of the injuries having been
inflicted a few days earlier, but given the evidence of [the child’s] s mot
her and from
what the accused told the police, there were no other incidents in the lead up to 30th
May that would have explained those injuries.
The sheriff over-
stated the position by saying “there were no other incidents”:
position was that there was no evidence of other incidents. However, the denials by the
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child’s mother and grandmother that any other incident occurred
did not exclude the
possibility of injury at the hands of another or others. There was no evidence to support
such a definitive statement by the sheriff which may have misled the jury into not giving
proper, careful and full consideration to the defence submissions.
Submissions for the Crown
If a particular factual proposition is to be advanced for the defence there must be
evidence to justify that proposition:
2018 JC 127
, LJG Carloway at para 35.
The only evidence of the respondent’s position, led at trial, was a police interview under
caution, and a witness statement, led by the respondent during the Crown case. Within
these the appellant excluded the possibility of the child receiving an injury prior to 30 May
2017, and excluded the child’s mother or maternal grandparents from causing any injuries to
the new born child. The appellant names no other person as having any caring role for the
child at that time.
The medical evidence that one could not exclude the possibility that the injuries
apparent on 30 May 2017 had been caused a few days prior cannot be viewed in isolation
but against the background of a witnessed injury and hospital admission on 30 May, and
evidence that such injuries (significant head injury and rib fractures), would be apparent to
those caring for the child if they had pre-existed. The directions were an accurate reflection
of the evidence before the jury. There was no need for sheriff to give a specific direction to
eliminate the possibility of another event which had not arisen in evidence. Reference was
 HCJAC 16
at para 53 in similar circumstances:
“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
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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
Analysis and decision
There was evidence before the jury that the bruising, sub-conjunctival haemorrhage,
bleeding leading to chronic subdural haematoma causing a degree of raised intracranial
pressure, and the fractured ribs all arose or could have arisen from one incident on 30 May.
There was evidence of a mechanism (forceful shaking) by which all the injuries could have
been inflicted. The child was admitted with fresh injuries sustained whilst in the sole care of
The appellant’s assertion in interviews and at hospital that
the child rolled off
the sofa was essentially excluded as a possibility by all the medical experts. On the evidence
there was no alternative reasonable explanation for these injuries, nor was there any
evidence pointing to an incident prior to 30 May which might have resulted in trauma.
There was evidence suggestive of a subsequent episode of shaking resulting in the retinal
haemorrhages identified in July 2017.
There was therefore ample evidence before the jury from which they would have
been entitled to conclude that the appellant had assaulted the child on “various” occasions
during the period of the libel, causing the injuries libelled.
It would no doubt have been preferable had the sheriff been more precise in relation
to the direction which is criticised, saying that there was no evidence of other incidents in
the lead up to 30 May that would have explained the injuries being referred to, but the
notion that the jury might thereby have been misled or somehow failed to give due weight
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to the defence submissions must be rejected. In the first place, the sheriff gave the jury the
standard directions that the assessment of evidence was a matter for them, not for him, and
that if anything he said did not accord with their recollections they should proceed on their
own recollections. The jury would not have understood the sheriff to have been stating the
evidential position to be other than it actually was. The sheriff proceeded to give the jury
full and detailed directions about the appellant’s police statement and subsequent interview,
correctly directing them that if any part of these gave rise to a reasonable doubt they
required to acquit, a direction which was repeated later in the charge.
As to the medical findings following admission on 30 May, the sheriff directed the
jury that they had to consider three issues: whether the injuries found following that
admission were caused by trauma sustained on that day; whether that trauma was
accidental or non-accidental; and, if the latter, whether the injuries occurred as a result of an
assault by the appellant, as he had already defined it. He made it clear that the injuries to
which he was referring were the bruising, the brain bleed including the subdural
haemorrhage, the sub-conjunctival haemorrhage and the rib fractures. He pointed out to the
jury that whilst there was a sufficiency of evidence for an assault on 30 May, sufficiency was
not the same as quality, and unless they were satisfied that at least the brain bleed was
caused in an incident on 30 May at the hands of the appellant they could not convict of a
libel which included an assault on 30 May.
He went on separately to deal with the evidence indicative of a subsequent event,
and in particular the ophthalmic evidence. He made it clear that the jury had to decide on
the evidence whether there was a second incident; whether it was an abusive, non-accidental
one; and whether the appellant was responsible for it. They could convict of the charge as
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libelled only if satisfied that there were two separate events in each of which the appellant
assaulted the child causing injury.
The directions which are singled out for criticism require to be seen in the context of
the whole charge, and of the evidence which was before the jury. Having regard to both we
do not think there is any merit in the criticisms advanced. In this respect we note that the
sheriff also directed the jury that they had:
“to exclude any realistic possibility for there being an unknown cause for the injuries,
and to exclude the explanation the accused offered to the child’s mother and to the
police, before they could conclude that the injuries were non-accidental and resulted
from an assault.”
In light of
it is questionable whether the first part of this direction was required, but it
was clearly favourable to the appellant.
The sheriff’s directions overall were quite clear,
balanced, and not in any way liable to confuse the jury, or cause them not to give due
consideration to any relevant points advanced for the defence.
In these circumstances the appeal must be refused.
amended on 25/11/2010