APPEAL FOLLOWING UPON A REFERENCE FROM THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
APPEAL COURT, HIGH COURT OF JUSTICIARY |
Lord Justice Clerk Lord Bracadale Lord Drummond Young | [2014] HCJAC 114 XC82/13 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL FOLLOWING UPON A REFERENCE FROM THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION by FAISAL YOUNAS Appellant; against HER MAJESTY’S ADVOCATE Respondent: _____________ |
Appellant: A Ogg, Solicitor Advocate; Gilfedder McInnes (for Callahan McKeown & Co, Renfrew)
Respondent: Wade QC AD; the Crown Agent
25 September 2014
1 Introduction
[1] This appeal raises once again the issue of the degree to which a trial judge should delve into the evidence, when giving directions to the jury. It concentrates upon the extent to which a judge requires to “summarise” evidence and to do so in a balanced manner. The focus is upon medical evidence of the cause of death of an infant whilst in the care of an accused. The appeal also raises an important point about the value of the evidence of a young child and the guidance, if any, which a trial judge ought to give to a jury on how to approach such evidence.
2 General
[2] The appellant went to trial in November 2007 on 3 charges, in particular: (1) multiple assaults on his young son W, born in December 2000, during the years 2002 to 2005, by striking him on the head and body; (2) wilfully ill-treating or neglecting his daughter A, born in December 2004, by failing to see that she was properly nourished and clothed and by delaying seeking medical treatment for severe injuries to her head and arm in August 2005; and, most important, (3) assaulting and murdering A on 16 September 2005, by shaking her or otherwise inflicting trauma on her head and neck.
[3] At the close of the Crown case, the advocate depute withdrew the libel on charge 2 and reduced the charge of murder to one of culpable homicide. When she ultimately addressed the jury, the advocate depute stated that she did not seek a conviction on charge 1. The trial judge accordingly directed the jury to acquit on that charge. On 24 January 2008 the jury found the appellant guilty of culpable homicide in terms of the remaining libel. He was subsequently sentenced to 6 years imprisonment.
3 Evidence
(a) lay testimony
[4] The appellant lived with his wife and two children in Pollockshields, having entered the United Kingdom from Pakistan in 2001. His wife worked as a cashier, whilst the appellant looked after the children at home. On 4 August 2005, A was taken by her parents to Yorkhill Hospital for Sick Children with a large fracture to the occipital bone, with associated bruising to the back of the head. Ultimately, however, it was concluded that there was no adequate basis for concluding that anything sinister had happened. The baby was later complaining of a sore arm. This was subsequently discovered to be related to a fracture of the humerus.
[5] On 15 September, which was the day before her death, A had been seen by Dr Virinder Madhok, who was the family’s general medical practitioner. She had a urinary tract infection, a raised temperature, a cough, a runny nose and a history of vomiting. Antibiotics were prescribed. There was no reason to suppose that A was suffering from any persistent condition.
[6] It was not in dispute that, on 16 September 2005, the appellant had driven his wife to her work at about 12 noon and returned home with the children. He was thereafter alone in the house with them. At about 1.30pm, the appellant called at his GP’s surgery with A. She was clearly in a very distressed state. Attempts were made to resuscitate her. A was taken by paramedics to the Victoria Infirmary, rather than Yorkhill, because of her serious condition. Direct evidence of what had happened to A came from two principal sources. The first was W, who was 4¾ at the material time and 6 when he gave his evidence by recorded commission. The trial judge described W as a bright, intelligent boy. No issue was raised about his ability to give evidence. According to W (see also infra, advocate depute’s speech), he had been in the livingroom when the appellant had come downstairs and struck A “hard” on the face. W had tried to intervene, but he too had been hit. W, who had an interest in Transformers, described the appellant punching him with an iron fist.
[7] The second source was the appellant himself; in the form of statements made by him or in his presence, and ultimately in his testimony. The GP could not remember if the appellant had said anything about what had happened. One of the paramedics said that, in the ambulance en route to the Victoria, the appellant had said that he had been feeding the baby. She was sick and had become quite “flaccid”. At the Victoria, one of the doctors was allocated the task of finding out what had happened from the appellant. The appellant explained to the doctor that the baby had had difficulty breathing. She was rigid and extended and the appellant had taken her to his GP. There was no mention of any traumatic event.
[8] After stabilisation and intubation, A was transferred to Yorkhill. Nursing Sister Rose was part of the team transferring the baby to Yorkhill. She had been with both parents in the intensive care unit. She had asked them what had happened. The appellant had not spoken, but his wife had said that she had given the baby her milk before leaving her “for one hour with the appellant”. The appellant’s wife had asked him “how this had happened”, but he had not responded. When his wife touched him for comfort, the appellant had shrugged her off. Sister Rose, who had 18 years experience, thought that this was “very unusual”.
[9] Dr Syed Ahmed, consultant paediatrician at Yorkhill, had spoken to both parents using both English and Urdu. The appellant had told him, in Urdu, that he had been at home with the children. He had gone to the toilet. A had been sitting on her car seat. When the appellant had come back from the toilet, A was not breathing. The appellant had attempted to resuscitate her before taking her to the GP. When Dr Ahmed had asked the parents if they had ever roughly handled or smacked the baby, the appellant had looked straight ahead. His wife had given him an accusatory, rather than inquiring, look. The trial judge directed the jury to ignore that as evidence against the appellant, because there was no evidence that the appellant had noticed the glance and reacted to it.
[10] DC O’Neill took a statement from the appellant at Yorkhill at about 11.00pm. After an account of the previous evening, when A had been vomiting, the appellant had said that she had been fine later that night and in the morning. A had been given milk at 1.00pm before being placed in her seat. The following was then recorded:
“About ten minutes roughly (later), I’d made tea for me, 2-3 minutes, then I went to see her and she’s faint and her arms and legs were floppy. I tried to breathe in her mouth for two to three minutes. ... Her eyes were closed but her legs and hands were moving, she was breathing but not taking it properly (breaths). I went in the car to the doctor’s…”.
[11] In his evidence, the appellant said that he had fed A at 1.00pm. He was in the living room with the children. He heard (other) children fighting outside. He had gone to the terrace to look at this. When he came back into the livingroom, A, who was in her car seat, was having difficulty breathing. She had been out of his sight for 4 or 5 minutes. He picked her up and clasped her to his chest. He gave her mouth to mouth resuscitation before taking her to the doctor. There was milk coming from her mouth. He had never hit any of his children. W had been lying when he had given evidence otherwise. The appellant had “tapped” A on the face when she was not breathing.
(b) medical evidence
ANTE MORTEM
[12] Dr Madhok, the GP, had looked in the baby’s mouth at his surgery. He had not noticed anything there. By the time the paramedics had arrived, the baby was fitting. Her teeth (gums) were clenched. She was shaking. The paramedics did not notice any vomit.
[13] Dr Daisley, a consultant in accident and emergency medicine at the Victoria, described the baby as pale and unconscious upon admission. The most serious problem was with her airway, which was intermittently obstructed as a result of unusual posturing of her head, neck and body. A was arching her back, with her neck and head fully extended. She was in the shape of a banana (opis thotonis). When the baby was in spasm, her airway was obstructed. When the spasm passed, the airway cleared.
[14] During resuscitation there was a sudden event, with vast quantities of frothy liquid coming from the baby’s nose and mouth. This was after the chest had specifically been noted to have been clear. This sequence suggested the occurrence of a neurogenic pulmonary oedema. There had been no gargling sounds, which might have been expected if there had been any material in the baby’s throat. There had been no signs that the child had vomited. Dr Daisley’s fear, based on her experience, knowledge and training, was that the baby had suffered a catastrophic intra-cranial event. Her initial reaction, however, was that she was treating an illness, rather than trauma, given the absence of any external signs of injury.
[15] Dr Dell, the consultant anaesthetist, took over from Dr Daisley in clearing the baby’s airway and intubating her. He too spoke about the pinky fluid. This was a feature of pulmonary oedema. One of the primary causes of such oedema was a head injury (neurogenic pulmonary oedema). Once he had intubated the baby, Dr Dell cleared the stomach in order to reduce the risk of aspirating gastric content. He had noticed a lot of curdled milk coming from the stomach. There was no obvious cause, such as a blockage, which could have stopped the baby breathing or caused pulmonary oedema. Dr Dell did not recall seeing any vomit. Neurogenic pulmonary oedema required something to initiate it, usually trauma or infection. It was far more likely in this case that the cause had been injury rather than infection. Such oedema could not be caused by an airway obstruction, producing volumes of frothy liquid.
POST MORTEM
[16] The post mortem examination was carried out by Dr Howatson, the consultant paediatric pathologist at Yorkhill. He had the assistance of Dr Black, consultant pathologist. The brain and eyes were sent for specialist analyses. Ultimately, the pathologists’ conclusion was that the baby had died from ischaemic brain damage (hypoxic ischeamic encephalopathy) caused by oxygen starvation consequent upon a head injury. There were no marks on the outside of the head, but there were injuries within it. This situation could have been caused by acceleration followed by rapid deceleration of the head or by an impact of the head against a soft surface. Dr Howatson had been made aware of the ante mortem CT scan findings of subdural and retinal haemorrhaging. This could be explained by his finding that the thin but elastic bridging veins of the brain had been disrupted. The disruption had been total on one side and partial on the other. The previous fracture to the skull had been of no direct significance as a cause of death.
[17] The pathologists had looked for any sign of obstruction to the airway. There was none, even upon microscopic inspection. If vomit had been inhaled, there would have been evidence of it. Gastric aspiration was excluded. In his report, the trial judge summarised part of Dr Howatson’s testimony as follows:
“If one took the constellation features, namely the broken bones, the bleeding into the eyes, the retinal folds and the subdural haemorrhage the pattern was not susceptible to natural events. Even if one left out the bone injuries there were retinal haemorrhages and retinal folds and these are consistent with head injury. He and his colleagues concluded that injury was the cause of the constellation of features … [H]e could not identify any other cause.”
Pathological examination could not differentiate between accidental or deliberate injury. It was highly unlikely that being slapped on the face would cause the injury, in the absence of marks on the face. A hard punch on the face could cause it, but that would leave marks.
[18] Dr Black’s evidence was to a similar effect. The trial judge’s paraphrase included the following:
“The constellation features are of a pattern … consistent with inflicted head injury and inflicted humeral injury. Subdural haemorrhage, swelling of the brain and resultant hypoxic ischemic damage along with retinal haemorrhages in the eyes are features found in standard forensic textbooks classically associated with inflicted head injury. In other words something outside the child had exerted force on the child.”
[19] Dr Smith, consultant neuropathologist, examined the brain. His finding of subdural blood was in keeping with the traumatic rupture of the bridging veins. The reason for the development of hypoxic ischemic encephalopathy was trauma, which had damaged the cervical cord and caused intradural haemorrhage and tearing of the dura. The triad of subdural haemorrhage, retinal haemorrhage and encephalopathy, whilst not diagnostic of trauma, was a frequent element in trauma cases. There was no alternative explanation. It was not necessary for the baby to have been shaken, although that was one possibility. What was required was a force causing the brain to move rapidly and then stop. The previous skull fracture had no significance.
[20] Dr Roberts, consultant pathologist specialising in ophthalmics, examined the eyes. They had bilateral diffuse retinal haemorrhages with a prominent fold and haemorrhage into the optic nerve sheath. This pattern was compatible with findings which followed injury. The combination had been found in cases where there had been admitted shaking of a child or a crushed head injury. Considerable force would have been required.
[21] Dr Stoodley, consultant radiologist, had been asked to interpret the ante mortem CT scans. These had shown extensive abnormalities, with recent blood at several sites in the subdural space and hypoxic ischemic brain injury. The cause was severe trauma of the type occurring in a road traffic accident. The most likely mechanism was shaking; that is a repetitive backward and forward movement on an unsupported neck. There was a dispute amongst members of the medical profession as to whether shaking could produce such injuries without causing damage to the neck. Having considered the scan taken on 5 August, he did not consider that the previous skull fracture had any connection with the death.
[22] Dr Stoodley was of the opinion that Dr Squier’s view (infra), that shaking could not cause injuries of the type suffered by the baby, was, as described by the trial judge, “neither reasonable, reasoned nor capable of [?withstanding] critical analysis”. Choking, followed by raised intracranial pressure and bleeding, could not explain the pattern of injuries. There was no evidence to support choking as a primary event. Choking did not produce subdural haemorrhaging.
[23] Dr Robinson, consultant paediatrician specialising in metabolic disease at Yorkhill, reviewed the case and reached the view that no metabolic disorder could have caused the clinical findings. The death could only have been caused by injury.
[24] Dr Richards, consultant neurosurgeon, carried out a similar exercise from the neurological perspective and concluded that: “No single medical condition is known which causes these features in combination”. The only conclusion was that the cause of the baby’s collapse and death was head injury. The earlier skull fracture had not been a contributory factor. The damage would have caused loss of consciousness. A would have become “floppy” and pale. She would have lost temperature and may have started to fit. She would have stopped breathing, but then restarted. There was no evidence in clinical practice to support the theory that she had choked or inhaled vomit. Dr Richards explained that:
“… it is accepted by the vast majority of practitioners who work in the field of paediatrics or paediatric head injury that significant forces of a magnitude well above those encountered in normal life are necessary to cause such injuries. Such injuries are not normally seen with normal or even rough handling of a child.”
One possible mechanism was excessive shaking, including a single momentary shake. The earlier fracture was not a contributory factor.
[25] Dr Jones, a biomechanical engineer specialising in trauma, explained that some of his colleagues did not consider that shaking alone could cause injuries of the type suffered by A. He, however, thought that sufficient forces could be produced to cause the injuries, consequent upon an impact on a pliant surface. Whereas a forward and backward motion might be insufficient to generate the necessary forces, a more cyclical motion could do so. He disagreed with Dr Thibault (infra) on the limited effect of shaking. If illness were discounted, certain of the injuries, notably the subdural haematoma, subarachnoid haemorrhages and the cervical damage, were consistent with trauma.
[26] The defence medical evidence came first from Dr Squier, a consultant neuropathologist specialising in the development of the brain in the foetus and infant. Dr Squier took the view that it may have been the previous skull fracture that had caused the subdural bleeding. The injuries to the brain could have been caused by either trauma or asphyxia impairing circulation to the brain. If milk had got into the larynx and obstructed the airway, the body’s response would have been to close the airway. A surge of blood pressure to the brain would follow, causing a rupture of the blood vessels. Contrary to her previously held views, shaking could not have caused the injuries. Biomechanical studies had showed that this was not possible without damaging the neck. There were no grip marks or rib fractures. The bridging veins on the brain would have been damaged on both sides. If trauma were excluded, choking was the logical explanation. Dr Squier made a number of concessions under cross examination to the effect that the clinicians were more experienced on choking and aspiration. She was not an expert on eye pathology. Trauma was the most common cause of rupture of the veins. A’s death could not be determined solely by neuropathology. Other disciplines had a role to play. She could not exclude impact trauma as the cause of death.
[27] Dr Doyle, who was a retired paediatric neurologist, stated that the earlier skull fracture could have weakened the brain’s structures so as to render the veins more susceptible to rupture in the event of an increase in pressure, possibly caused by choking.
[28] Dr Thibault, who possessed a doctorate in biomechanical engineering, considered that the forces generated by shaking were below the levels at which subdural haemorrhaging occurred. A baby’s neck would fail well before reaching the threshold for subdural haemorrhage. Furthermore, there were no external injuries consistent with shaking, such as rib fractures, grip marks and long bone injuries.
4 Speeches
[29] The advocate depute asked the jury to conclude that the evidence of W, taken together with the medical evidence about the nature of the injuries to A, proved that she had died because of an assault upon her by the appellant. The advocate depute expressly said that she was not going into the evidence in detail. She focused upon the testimony of W that the appellant had “thumped down the stairs, slapped A… on the cheek hard, that she cried, then she stopped crying and she didn’t move … because she was dead”. That evidence, coupled with the medical testimony that the injuries to A had been caused by trauma, essentially proved the Crown case. There was no contrary explanation for A’s collapse, other than a vague account given by the appellant about coming back into the room, finding A in the seat with some milk coming from her mouth and apparently having breathing difficulties.
[30] The advocate depute addressed the jury on the basis that the medical evidence overwhelmingly pointed in the direction of A having suffered trauma, delivered in the form of an assault. She referred to the subdural haemorrhaging, the retinal haemorrhaging, the tear to the spinal dura and other aspects of the post mortem examinations. Specific reference was made to the evidence of Dr Dell and Dr Daisley and to the constellation of injuries, spoken to by the pathologists, Dr Howatson and Dr Black, and how these fitted with inflicted head injury. A similar result had been postulated by the neuro-pathologists, Dr Smith and Dr Roberts. Dr Richards had reached the same view on the sequence of events. Having referred also to the biomechanic, Dr Jones, the advocate depute turned to address the contrasting views of each of the defence experts. In particular, Dr Squier had, as the advocate depute reminded the jury, put forward a theory that the child could have choked. This was inconsistent with the clinical findings.
[31] The advocate depute dealt with the testimony of the appellant and criticised his late explanation of being out of sight of A, in contrast to what he had told the police. She submitted that the injuries could have been inflicted by the appellant in a variety of ways; by shaking “or perhaps … more likely by being moved and stopped against a surface soft enough not to cause external damage. A force was delivered to her head and that’s what caused the injury”.
[32] The defence speech was of relatively short duration, focused upon the evidence of W, stressing his age, but not actually criticising W much on that basis alone. Rather, the suggestion was that the appellant’s efforts at resuscitation may have been misunderstood by the child. Defence counsel turned to the Crown experts and stated that they had all said the same thing; that the injuries had been as a result of an inflicted injury or some form of accident. He described Dr Squier as “a class act” and repeated, what the advocate depute had already said to the jury, that she thought it had been conceivable that the child had choked and stopped breathing. He referred to Dr Doyle and his theory about the previous injury impacting on the structures of the head and making it more liable to bleed. He drew the jury’s attention to Dr Thibault’s evidence, to the effect that the injuries were not consistent with shaking. The submission to the jury was, simply this:
“Now what do you do with that? Do you ignore it? Do you ignore the evidence of three top people? I don’t know. It’s your decision, not mine but you have a range of opinion about how this child met her death, and we may never know. Science perhaps hasn’t reached that point yet. What we know is that the child dies without a mark on her. …
The prosecution is flawed.”
5 Charge
[33] In relation to the expert evidence, the trial judge gave the jury the standard directions on how to approach such testimony. He spent some time telling the jury that, in relation to evidence of opinion, they would have to be satisfied that the witness was skilled in the relevant field. In doing so he said, as was perhaps obvious, that it was clear that there were differences between the “so-called” experts, some of whom were engaged in the same discipline. He went on to direct the jury on how to treat opinion evidence and how to assess the reliability of skilled witnesses.
[34] When he turned to the evidence available to support a conviction, the judge focused the issue for the jury in the following way:
“… the accused disputes that baby A… was assaulted and ultimately killed by anybody. In other words it is disputed that A…’s death was due to an assault by anyone. The Crown’s case in that regard is based on a combination of circumstantial evidence and direct evidence of W… as to A…’s reaction when the accused was with her. On that basis, the Crown invites you to conclude that the crime of culpable homicide has been committed and it was the accused who committed that crime.
And in her address to you, the advocate depute outlined the circumstances upon which she relied. I will not rehearse them, but essentially she relies upon a variety of medical specialists who expressed the opinion that the condition of the baby could only be explained by trauma to A…’s head and neck …, the medical specialists having excluded natural causes or disease.”
[35] In relatively short compass, the trial judge explained to the jury that, even without W’s evidence, there was sufficient circumstantial evidence to justify a conviction. He went on to state that:
“… in considering the Crown case you must also consider the evidence led on behalf of the accused, including his own evidence, to decide whether you are prepared to draw the inference suggested by the advocate depute. …, you are entitled to consider all the evidence and in particular you may take into account any circumstance which you consider to be significant, whether or not it was mentioned by the advocate depute or [counsel for the appellant] in their closing speeches to you. In other words, you are not constrained by the circumstances that they mentioned or the pieces of evidences that they mentioned.”
The judge reminded the jury about the appellant’s own evidence and the fact that, if they believed him, they required to acquit him. Even if they did not wholly believe him, if they had a reasonable doubt caused by anything said by him or a defence witness, they required likewise to acquit.
[36] After an adjournment overnight, the trial judge returned to the question of whether the jury should be satisfied beyond reasonable doubt of the guilt of the accused. He provided a path which the jury might wish to follow by stating that, on the assumption that it was accepted that A had collapsed and was in a poor state of health by the time she had reached hospital, the jury might want to consider whether the Crown had excluded inhalation of food and vomit as the cause of her collapse. He reminded the jury of the existence of Dr Dell and Dr Daisley and about their physical findings at the time. He reminded them also about the accused’s evidence about seeing milk at A’s mouth, when he had found her in a collapsed state. The judge invited the jury to consider whether, assuming that the Crown had excluded inhalation of food and vomit as the cause of her collapse, they were satisfied that the Crown had also excluded some form of natural disease. He reminded the jury about the evidence on that. If that too were excluded, he invited the jury to consider whether the Crown had excluded genetic conditions, which would account for her demise. Having done this, the trial judge continued:
“… if you’ve got to that stage … if you’ve excluded all of these things, you then might want to go on to consider whether you were satisfied beyond reasonable doubt that the Crown has established that the injuries were caused by shaking, just stopping at shaking, first of all.”
[37] The trial judge reminded the jury about the existence of a difference of opinion between the experts on this issue. There was that of Dr Jones, which was similar to that given by Dr Thibault for the defence, to the effect that shaking, as distinct from impact, was unlikely to have caused the post mortem findings. The judge continued:
“… even if you were not satisfied beyond reasonable doubt that the injuries were caused by shaking … that’s not an end of it, because you then have to go on to consider whether the injuries were caused by trauma to the head and neck. And again, that would involve an assessment essentially of the expert witnesses on both sides …
If at the end of the day you are satisfied beyond reasonable doubt that the head injuries, the brain injury was caused either by shaking or by trauma to the head and neck or both, then the next thing you have to consider is are you satisfied beyond reasonable doubt that that shaking or trauma causing the injury resulted in the ultimate death of A... …. If you answer that last question yes, …, then you have reached this stage in your deliberations … that you are satisfied beyond reasonable doubt that the Crown has established that the crime of culpable homicide has been proved, … obviously if you said no to that, then you are not satisfied beyond reasonable doubt that the Crown has proved the crime of culpable homicide and in that situation you would have to acquit, because … the Crown will have failed to prove that a crime has been committed by anyone”.
Finally, the judge directed the jury that they still needed to be satisfied that the Crown had established that it had been the accused who had committed the crime.
6 The original appeal
[38] A Note of Appeal was lodged on 25 June 2008. This was signed on behalf of the junior counsel who had appeared for the appellant at the trial. The only grounds of appeal against conviction were that: (1) the trial judge had placed inappropriate emphasis upon certain evidence, which he then directed the jury to ignore as inadmissible; and (2) in directing the jury not to speculate, the judge had been unfairly critical of defence counsel’s speech.
[39] Leave to appeal was granted on 6 December 2008 at the first sift stage. In due course, on 12 May 2011, the appeal based on these grounds was refused ([2011] HCJAC 48). Meantime, however, on 24 November 2009, the appellant had lodged a document containing what were described as “proposed additional grounds of appeal”. The fourth of these grounds was in the following terms:
“The trial judge misdirected the jury by setting out at length the Crown case but failing to set out the defence case. The trial judge referred to the defence briefly … The defence case was that when the appellant had returned to the room he found A… had choked on her bottle, and vomited, that the experts called on behalf of the appellant were of the opinion that vomiting resulting in an interruption of the intake of air into the lungs with a subsequent failure of blood and oxygen supplied to the brain … was in the absence of any sign of trauma an explanation for the baby’s collapse and they conclude that the subdural bleeding could therefore be as a result of a hypoxic ischaemic brain injury. The trial judge failed to explain the importance of the evidence of Dr Dell … He had difficulty in maintaining a natural airway. He tried to force air into the child’s lungs. He used a suction catheter to suck gastric contents out of the trachea and to ventilate the lungs. He saw gastric contents including curdled milk, consistent with the appellant’s account of the events leading to A…’s death and consistent with the expert medical evidence adduced for the defence and not disputed by expert medical witnesses called by the Crown. The trial judge misdirected the jury by failing to direct them to consider the defence case”.
These additional grounds were intimated in a fax from a new set of agents and did not purport to have been advanced by trial counsel. The inaccuracies in the factual content of this ground, as contrasted with the actual evidence at trial, are manifest. The appellant did not say that he had returned to the room and found that A had choked on her bottle and vomited. Dr Dell’s evidence about curdled milk related to his removal of the gastric content and was not connected to any account of choking. Such inaccuracies are not unusual when grounds are advanced by those not present at the trial.
[40] At a single judge procedural hearing on 27 November 2009, the proposed “additional grounds of appeal” were “received”. The court directed that the grounds be subject to the sifting procedure. That procedure took place initially on 1 July 2010, when, in a detailed statement of reasons, the first sift judge (Lady Dorrian) refused to grant leave in respect of any of the grounds. In relation to the fourth ground, the first sift judge said this:
“The trial judge advised the jury that the assessment of the evidence was wholly a matter for them … He then made such reference to the Crown case as was necessary to put his directions in law into context, specifically reminding the jury that assessment of the evidence was for them, … When he referred to the Crown case he did so in general terms and on no view could he be described as having rehearsed the very lengthy Crown evidence which was given in the case. He specifically told the jury … that he did not intend to do so and he did not do so. Apart from the passages referred to in the grounds of appeal, the defence position was referred to …; differences between experts was referred to …. ; the need to assess the evidence of the accused was referred to …; the approach to be taken to the evidence of the accused was indicated …; there was no reason for the trial judge to have to record specifically the evidence of Dr Dell referred to in the ground of appeal, which is in any event incompletely narrated and had he done so he would in fairness have had to dwell on certain other aspects of the Crown case given by other witnesses, thus spending more time addressing the Crown case …”.
[41] On 1 July 2010 the court (Lords Eassie, Brodie and Wheatley) again refused leave to appeal on the basis that the grounds were not arguable. The judges agreed with the first sift judge and added, in relation to the fourth ground, that it was to be noted that the trial judge had told the jury of the need to exclude vomiting as a cause of the brain injury.
7 The Reference
[42] The appellant was released from custody on 24 January 2012. He was served with a deportation order. The appellant consented to deportation and was deported on 19 March 2012. By this time he had made an application to the Scottish Criminal Cases Review Commission. His consent to deportation was expressly not to be taken as suggesting any departure from that application. The application consisted of grounds identical, or at least very similar, to those refused by the court at the hearing of the appeal, or in the course of the sifting process. The SCCRC rejected the application to refer the case based upon the original grounds of appeal and those reflecting the proposed additional grounds 1 to 3. However, a different approach was taken to ground 4. The SCCRC noted that the judges at first and second sift had deemed this ground unarguable but, as the SCCRC put it (Reference para 93):
“The Commission, however, respectfully disagrees with this view”.
The SCCRC noted that the trial judge had identified three possible causes of death which the Crown would have to exclude. These were inhalation of food and vomit, infection and genetic condition. In relation to the first of these, the judge had made reference to the evidence of Dr Dell and Dr Daisley but, it is said that:
“Beyond those remarks, he did not rehearse the evidence of these two doctors further, but he added that if the jury accepted the evidence of the post mortem examination of the lungs, there was no evidence of change in the lungs that you would expect if there had been inhalation of food and vomit. He reminded the jury that it also had to consider the applicant’s evidence about seeing milk at baby A…’s mouth when he found her in an unconscious or collapsed state.”
In relation to the possible causes, the trial judge had said that, even if these causes were excluded, the jury still had to be satisfied that the injuries had been caused by shaking. He had reminded the jury that there was a difference of opinion between the Crown and the defence witnesses on this issue and that they would require to assess the expert evidence on both sides. The reference continues:
“The Commission has concluded that … the trial judge’s approach was to invite the jury to consider whether or not the Crown had excluded all possible innocent explanations for death. Thereafter, if the jury found that it had done so, it had to consider whether it was satisfied that the death had been caused by shaking or trauma to the head and neck and, finally, that the applicant was the person who had inflicted that shaking or trauma. In following that approach, however, the Commission considers that it was incumbent on the trial judge to do more than make passing reference to the possible causes of death and the Crown and defence expert witness evidence pertaining to them. In particular it was his duty to summarise the evidence of the main Crown and defence experts in relation to the possible causes of death and to outline to the jury the basis of the differing expert opinions, given that the jury would have to decide which to prefer. Specifically, with regard to the applicant’s ground of review, the defence had led evidence from three experts, … and this evidence, … was not summarised for the jury.”
The SCCRC concluded that there was merit in the submission that there was a failure by the trial judge to set out the main arguments proposed by the defence with reference to the expert evidence.
[43] The SCCRC noted that there had been eye-witness evidence from W and stated that:
“It could be argued that the jury may have placed reliance on this evidence in reaching its verdict, despite the fact that the Crown case appeared to rely almost exclusively on expert witness testimony. The Commission considers that, in a matter of such importance, it would have been appropriate for the trial judge to caution the jury to take great care when considering the evidence of a child who was only 4 years of age at the date of the alleged offence and only 6 years of age by the time of his testimony, some two years after the alleged incident.”
8 Grounds of appeal, case and argument and submissions
Appellant
[44] The grounds of appeal and the written Case and Argument for the appellant generally follow the reference. There were essentially two points. The first was that the trial judge misdirected the jury by failing to provide a balanced review of the central factual matters for the jury’s determination and of the evidence at trial. The trial judge erred in failing to “summarise” the evidence of the main Crown and defence witnesses in relation to the possible causes of death. He erred in failing to outline the bases of the differing expert opinions, given that the jury would have to decide which opinion to prefer. In particular, the trial judge erred in failing to summarise the evidence of the three defence experts and to outline its importance. The defence case was that, when the appellant had returned to the livingroom, he had found that A had choked on her bottle and vomited. The experts called on behalf of the appellant were of the opinion that the vomiting had resulted in an interruption of the intake of air into the lungs with a subsequent failure of the blood and oxygen supply to the brain. This was, in the absence of any sign of trauma, an explanation for the baby’s collapse.
[45] Emphasis was placed upon Liehne v HM Advocate 2011 SCCR 419; it being contended that, had the sifting judges been aware of that decision, it would have been unlikely that leave would have been refused. Two of the judges who had refused leave had been in Liehne. The court in Hainey v HM Advocate 2013 SCCR 309 had cited with approval certain dicta from the Court of Appeal in England in R v Henderson [2010] 2 Cr App R 24 (at para 215), to the effect that a judge should generally “sum the case up issue by issue, dealing with the opinions and any written sources for those opinions issue by issue … The summing up should enable anyone concerned with an adverse verdict to understand how it has been reached … ”.
[46] The length of time which the appellant’s trial had taken had made it very likely that the jury would be unable to recollect in much detail the very technical and complex evidence of the experts. The issues to be summarised by the trial judge were not to be determined by the content of the speeches of the Crown or defence. Rather, as part of the overarching duty of the court to ensure a fair trial, it was for the judge to provide a balanced summary of the Crown and defence positions, taken not only from the speeches but from lines adopted in cross-examination. It did not matter what counsel had said, or had not said. It was for the judge to carry out this exercise.
[47] It was accepted that the judge had created an appropriate structure, but he ought to have expanded upon it by rehearsing the relevant evidence. For example, he should have mentioned Dr Dell’s evidence of finding curdled milk in A’s airway. In relation to the post mortem examination, he ought to have mentioned the clearing of the airway by Dr Dell and Dr Daisley.
[48] As was observed in Liehne, although jury trial is not inconsistent with the right to a fair trial in terms of Article 6 of the European Convention, the jury’s verdict is not given in isolation but within a framework which includes the terms of the charge (Judge v United Kingdom 2011 SCCR 241). The framework in the appellant’s case had been inadequate and accordingly the charge and verdict had breached the appellant’s Article 6 right.
[49] The second point was that the trial judge erred in failing to caution the jury in respect of the evidence of W. He ought to have directed the jury to take “great care” when considering his testimony, given W’s age at the time of the incident and that at trial. A warning ought to have been given especially in light of the doubt which had been cast upon W’s account by Dr Howatson, who spoke to the significance of the absence of marks on the baby’s cheek.
[50] The advocate depute responded that the trial judge had not misdirected the jury. There was no requirement on a trial judge to summarise the evidence (D’Arcy v HM Advocate [2013] HCJAC 173 at para [14]). First, although the requirement in a case which depended upon competing medical evidence had been laid down in Liehne v HM Advocate (supra), that test had not been articulated at the date of the charge. Nevertheless, the judge had set out a clear framework, or pathway, for the jury which entirely satisfied the later test in Liehne. The case did not turn solely upon expert evidence, but depended also on that coming from W. It did not involve complex technical evidence. The bulk of the medical evidence was of fact and not opinion.
[51] The Liehne line of authority, which included Hainey v HM Advocate (supra), could be distinguished. The requirements suggested by the appellant far exceeded those laid down in these cases. In terms of Liehne, the principles were that, first, the primary duty of the presiding judge was to direct the jury upon the law applicable to the case. He had no duty to rehearse the evidence. He did have an overarching responsibility to ensure that there was a fair trial. In certain circumstances there may be an obligation to give guidance on how to approach some of the evidence, so that the jury might be focused on the critical issues for decision. The reason for that was to assist the jury by providing a framework for a reasoned verdict. It was not to remind them of evidence which they had earlier heard in the course of the trial. Secondly, according to Liehne, where there was a realistic possibility of an unknown cause of death, the jury had to be reminded that that cause had to be excluded before they could convict, as was also the case with some natural cause positively suggested in the evidence. Thirdly, it was not open to a trial judge simply to leave technical evidence at large for the jury. Nevertheless, he should take care not to encroach upon the jury’s function.
[52] The directions complained of should not be viewed in isolation. The court had to look at the charge as a whole in the context of the evidence, speeches and issues at trial (Muir v HM Advocate 1933 JC 46, Lord Sands at 49; McPhelim v HM Advocate 1960 JC 17, LJC (Thompson) at 21; approved in Johnston v HM Advocate 1998 SLT 788, LJG (Rodger) at 792). In judging the fairness of a trial, it was necessary to apply current standards, but non-compliance with rules, not current at the time of the trial, could be treated differently from non-compliance with rules that were in force at the time (Coubrough’s Extrx v HM Advocate 2010 SCCR 478, approved in Beck v HM Advocate 2013 JC 232). The trial judge had been bound by Shepherd v HM Advocate 1996 SCCR 679 to the effect that his primary duty was to direct upon the law. Although it was usually necessary to refer to the evidence in the context of his directions in law, it was a matter for the judge’s discretion to determine the extent to which that would be appropriate. In that regard, he could respond to a request in a speech by one of the parties to refer to a particular body of evidence. The judgment was one which the trial judge was best suited to make (Hamilton v HM Advocate 1938 JC 134, LJG (Normand) at 144; O’Donnell v HM Advocate [2014] HCJAC 43, Lord Eassie at para [27]; Black v HM Advocate 1974 JC 43, Lord Cameron at 49). The judge had set forth a clear framework or pathway for the jury which satisfied the appropriate tests.
[53] In relation to ground 2, reference was made to the terms of the Jury Manual which states that an appropriate direction to a jury would be that:
“You should judge all of the witnesses in the same way, whether they are lay people, police officers, doctors, scientists or the accused, or children. We may make special arrangements to put child witnesses at their ease, but their evidence is to be judged in the same way as anyone else’s.”
The jurors were well aware of the age of the child at the time of the incident and at trial.
9 Decision
[54] There are two separate elements to the criticism in the Note of Appeal of the trial judge’s treatment of the evidence. The first relates to “balance”. This can be dealt with in relatively short form. As was repeated recently in Snowden v HM Advocate [2014] HCJAC 100 (at para[ [50]), the essence of such a complaint, if it is to be regarded as justified, has to be that the judge, when referring to the evidence, has failed fairly to “put the defence case to the jury” (Scott v HM Advocate 1946 JC 90, Lord Carmont at 96). Failure to mention a particular point or points raised by the defence will not, of itself, suffice. “The criticism must be a substantial one of imbalance going to the whole ‘tenor’ or ‘purport’ of the charge in the sense of the charge ‘demonstrably favouring the Crown upon a contentious issue of fact raised during the trial’”. Ultimately, the court does not understand that the balance of the charge was in issue, as distinct from a failure to rehearse the evidence led by both Crown and defence and to refer to the points made, or which might have been made, by both parties on the import of that evidence.
[55] The second element relates to rehearsing the evidence. It is a significant defect in the ground of appeal and the SCCRC reference that it is contended that, as a matter of law, a judge requires to “summarise” evidence in certain circumstances. This is simply not the case. The court is unaware of ever having said that this is a requirement and it wishes to emphasise that it is not. As was recently said in D’Arcy v HM Advocate [2013] HCJAC 173:
“[14] In general terms, there is no requirement upon a trial judge to rehearse or summarise the evidence in a charge to the jury. Where, however, the resolution of the central issue or issues requires consideration of competing expert evidence of a complex technical nature, the trial judge may require to give the jury some guidance on how to approach that evidence in relation to the central factual matters for their determination. This will often be designed to provide a framework within which the jury can reach a reasoned verdict (Liehne v HM Advocate 2011 SCCR 419, LJG (Hamilton) at para [47] and also Hainey v HM Advocate 2013 SCCR 309, Lord Clarke at para [52]).”
The evidence is for the jury to analyse and assess. A judge should take care not to trespass upon the jury’s province in that regard.
[56] It remains primarily for the parties to address the jury on what parts of the evidence are, or are not, significant and to make such submissions on credibility and reliability as they think appropriate. The trial judge may react to any submissions made. He does not, however, 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. Although the jury are not bound by anything which is said, or not said, by counsel in their addresses, there are obvious problems created if the judge begins to address the evidence in a manner entirely inconsistent with that adopted by parties. For example, if he introduces matters not mentioned by the Crown (which he is entitled to do), he must take care, if the evidence favours a guilty verdict, that he does not deprive the defence of the opportunity to comment upon it. If he begins to mention important new points apparently favouring the defence (which he is also entitled to do), he must be careful not to be seen as depriving a succinct but powerful defence speech of its force and effect. As will be seen, the degree to which a judge enters into this area of fact must be very much a matter for his judgment, based upon his unique understanding of the true issues of fact in contention during the trial.
[57] It is important to recognise the differences between cases such as Liehne and Hainey on the one hand and this case on the other. Liehne was a very special situation in which the trial took place some 24 years after the death of the infant. The death had been certified as Sudden Infant Death Syndrome. There was no direct evidence of an assault on the child. The Crown case depended solely upon medical inferences that she had been suffocated. Many of the witnesses were speaking to the content of medical records rather than from recollection. There was evidence from haematologists, radiologists, experts in respiratory medicine, endocrinologists, pathologists, statisticians, microbiologists, histopathologists and paediatric pathologists and physicians. It is certainly true that, in that case, as in this, neither counsel sought to analyse the evidence in any depth. Yet the ultimate criticism, which found favour with the court, was that the trial judge had erred in following the same course as the parties.
[58] However, even in Liehne, the court (LJG (Hamilton) at para [46] following Shepherd v HM Advocate 1996 SCCR 679, (at 684) and Hamilton v HM Advocate 1938 JC 134 (at 144)) emphasised that the primary duty of a trial judge is to direct upon the law. He has no duty to “rehearse the evidence” or “summarise in chronological order the testimony of the witnesses”. It did state (ibid at para[47]) that in order for a verdict to be seen as proceeding upon a reasoned basis, the trial judge may require to provide a framework for the jury. However, it said only that in “some circumstances, and in particular in long complicated cases, there may be an obligation to refer to some of the evidence – so that the jury may be focused on the critical issues for their decision” (Black v HM Advocate 1974 JC 43, Lord Cameron at 49).
[59] In cases such as Liehne, where there is “no direct evidence of criminal conduct” and the case will “largely, if not exclusively, depend on inferences to be drawn from medical testimony”, a trial judge is required to “provide a succinct, balanced review of the central factual matters for the jury’s determination”. That is a far cry from suggesting any requirement to “summarise” the testimony given. The court certainly took the view (at para [55]) in Liehne that the trial judge ought to have identified and succinctly described the defence’s postulated explanations for the death, even if the accused’s counsel had declined to do so. The judge would, the court correctly reasoned, thereby oblige himself to do the same with the Crown case. The court recognised (at para [56]) the obvious dangers involved in such an intricate course, but considered that they should nevertheless be courted. Be that as it may, the dictum in Liehne must, given the existence of clear authority on the extent of a trial judge’s duty to delve into evidence, be confined to cases where there is evidence of such an extreme, complex and technical nature. It is not of general application to cases even where a trial has lasted for a relatively long time and has involved some conflicting evidence of opinion.
[60] Similar considerations apply to Hainey. There, as distinct from the situation in this case, the infant’s body, when it was discovered by relatives in March 2010, had been so decomposed as to make it impossible for the cause of death to be ascertained by the pathologists at the post mortem examination. The child had died some time in the course of Summer 2009. The evidence, that the child had died as a result of wilful neglect, came not from medical experts but from a professor (albeit a highly distinguished one) of forensic anthropology and her assistant. That evidence was that the existence of markings on the bones known as “Harris lines” were indicative of neglect. The pathologists remained of the view that the cause of death was properly recorded as “unascertained” and that the existence of Harris lines was not significant. The court (at para [51]) likened the case to Liehne as one where there was “substantial medical evidence which did not rule out a natural cause of death”. It endorsed (at para [52]) the approach in Liehne that, where a “trial turns significantly on complex scientific and medical evidence”, a framework may require to be provided. Once again, however, Hainey is very special on its facts, dealing as it did with a situation where medical evidence contradicted that of the anthropologists on a particular aspect of anatomical science.
[61] The mere fact that medical evidence has been given at some length during the course of a trial does not mean that the jury has been presented with complex testimony of a technical nature, which requires special directions by the trial judge. No doubt, in certain cases, difficult issues involving detailed consideration of the opinion evidence of experts may arise. This case does not fall into that category. Most of the evidence from the doctors was of fact rather than opinion. For example, there was evidence from the GP that he had not noticed any signs of airway blockage. There was testimony from the treating physicians (Drs Daisley and Dell) to the same effect that there was no sign of vomiting or aspiration of fluid. Rather, the airway had been clear except when A’s posture had changed that situation. There was post mortem examination (Drs Howatson, Black, Smith and Roberts) which showed no sign of airway obstruction or inhalation, even upon microscopic study. On the other hand, there was subdural and retinal haemorrhaging and massive disruption of the bridging veins of the brain. These were normal features of cases in which trauma had been inflicted, either accidentally or deliberately. The paediatrician and neurologist (Drs Robinson and Richards) who reviewed the case, saw no signs of metabolic or neurological disease. The only possible cause was trauma. There is nothing particularly complex about any of this evidence. The doctors were all saying that the combination of features identified were indicative of trauma, whether deliberate or accidental, well beyond the range of that normally encountered by babies.
[62] Some of the doctors led by the Crown had acknowledged that certain members of the medical profession did not accept that shaking a baby could cause injuries, such as those suffered by A, without there being damage to the neck. Again, there is nothing difficult in understanding this, from a jury’s perspective. This was the evidence also given by Dr Squier, who therefore postulated a theory (and that is all it was) that death could have been caused by the baby choking. That would not have explained the subdural haemorrhaging, but she said (contrary to the Crown witnesses) that that might have been caused by the previous fracture. Dr Doyle introduced the alternative view that the earlier fracture may have weakened the brain’s structures such that choking might have increased the internal pressure and thus caused the rupturing of the bridging veins. Dr Thibault also supported the view that shaking could not have caused the injuries. There was of course the lack of external marks, such as bruising, on A’s face.
[63] The fact that there are conflicting views held by members of the medical profession on the cause of death does not, of itself, render a case complex or difficult. The jury here had clear evidence from the treating doctors, those who carried out the post mortem examinations and those who reviewed the case, that the cause of death was trauma of one sort or another. It might have been caused by shaking or it might have been some form of impact injury. The defence did not dispute that these doctors did all speak with one voice. The defence put up the contrary theory about choking. The stark reality, however, was that there was no evidence that the baby choked. Contrary to what is asserted in the ground of appeal, the appellant did not say that A had choked. The doctors who saw her, including the GP and the treating physician and anaesthetist (Dr Dell), saw no sign of airway obstruction. Indeed the contrary was the case. The chest was clinically observed by Dr Daisley to have been clear. In addition, had there been an inhalation of liquid or solids, this would have been discovered upon post mortem examination. It did not matter, in that regard, that Doctors Daisley and Dell had been anxious to clear the airway, which had been intermittently blocked not by milk or vomit but by the baby’s unusual posture.
[64] It does not appear to have been disputed that choking would not cause either subdural or, perhaps more important, retinal haemorrhaging. That being so, it is difficult to see how the views of Dr Squier, and those of Dr Doyle and Thibault so far as relevant, could ever have been accepted by the jury as explaining the constellation of effects found in this case. In short, a clear clinical case was being challenged purely on the basis of a theory, which was not supported by that constellation.
[65] The fact that none of this evidence was particularly difficult for the jury to assess is borne out by the content of the speeches from counsel. Despite the length of the trial, as measured in days of evidence, neither the advocate depute nor defence counsel presented it to the jury on the basis that there were any complexities. The Crown speech is contained within some 35 pages of double spaced A4 typescript. There is no criticism of this. It does, however, reflect a speech of no more than about 45 minutes. The defence speech (24 pages) is even shorter. It accepted the import of the evidence adduced from the Crown, but attempted to raise a reasonable doubt in the jury’s mind by drawing attention to the defence witnesses’ theoretical propositions. These propositions did not so much run into conflict with the Crown evidence as present an alternative explanation, albeit one that did not seem to fit with all the physical findings.
[66] In short, the court is not persuaded that this case fell into that category of case where the evidence could be described as of such intricacy or complexity that it required any special treatment by the trial judge along the lines described in Liehne or Hainey. Given the nature of the case, it is undoubtedly true to say that some focussing of the issues might have been desirable. However, it is not for an appeal court to be over prescriptive about exactly what might have been said. The appeal has been presented on the basis that the trial involved a conflict of complex medical opinion and that thus directions of the type envisioned in Liehne and Hainey were required. However, this does not appear to have been the case. Rather, its focus was first on the evidence of W that the appellant had struck A “hard” and that that had stopped her crying and moving. Whatever criticisms may have been open to the defence in relation to that evidence, it was consistent with the medical evidence of extreme trauma having been inflicted on A whilst secured in a car seat. The issue as actually presented to the jury by the advocate depute and responded to by the defence was not one which involved the resolution of complex conflicting medical opinion but primarily one of whether the evidence of W, as supported by the medical evidence, satisfied the jury of the appellant’s guilt or whether, as the defence put it, the testimony of the “three top people” led by the defence, coupled with the appellant’s account, nevertheless raised a reasonable doubt.
[67] In determining how a trial judge should gauge the extent to which he might refer to the evidence, the court does afford the judge’s view considerable weight. He is far better placed “to understand what have been the real issues of fact canvassed at the trial and the extent to which the jury might benefit from further clarification” (Shepherd v HM Advocate 1996 SCCR 679, at 684; Hamilton v HM Advocate 1938 JC 14, LJG (Normand) at 144). In this case, in any event, it is clear that the trial judge did what was later prescribed in Liehne and Hainey as appropriate for cases of some complexity. He did provide the jury with a route or path to verdict. In particular, he told the jury that, in order to convict, they would require first to be satisfied that the Crown had excluded inhalation of food or vomit as the cause of A’s collapse. This was, of course, precisely the hypothesis advanced by the defence witnesses. The judge went on to direct the jury that they would require to be satisfied that other causes, such as natural disease and genetic condition, had also been excluded. He moved onto the subject of shaking as a cause of death and of other traumatic factors which might have been instrumental. The court is unable to accept the criticism made in the reference that the trial judge made only “passing reference to the possible causes of death” and to the relevant witnesses. It has to be borne in mind at all times that, for directions to a jury to be effective, they must be delivered in a manner which the jury will grasp. Care must be taken not to be condescending or patronising to juries by rehearsing evidence to them which they have not only already heard but have also been told specifically is for them, and not the judge, to assess. The risk of inducing boredom and thus promoting a lack of concentration should not be underestimated (see McPhelim v HM Advocate 1960 JC 17, LJC (Thomson) at 21). It is also not to be lightly assumed that a jury will suddenly suffer from collective memory loss relative to evidence presented in recent weeks during the course of a trial (Snowden v HM Advocate (supra) at [57]).
[68] It is common ground that a charge should be such as to enable the informed observer, who has heard the proceedings at trial, to understand the reasons for the verdict. In certain cases, and this may have been one, the trial judge may require to focus the issues of fact sufficiently in order to provide a route or path to a verdict. The path outlined by the trial judge in this case was simple and straightforward. It would have enhanced the informed observer’s understanding of the reasons for the verdict. The requirement for a reasoned verdict in terms of Judge v United Kingdom 2011 SCCR 241 (at paras 35 and 37 following Taxquet v Belgium [2012] 54 EHRR 26) is thus met. The observer would readily have grasped that, having considered the evidence, the jury had excluded each of the possible causes of death other than trauma. He would have understood that the jury had been satisfied beyond reasonable doubt that the cause of death had either been shaking or some other form of blow to the head. He would have seen that the jury had concluded that this trauma had been deliberately inflicted by the appellant.
[69] For all of these reasons, the appeal on this ground is refused.
[70] In relation to the contention that the trial judge ought to have given the jury a cum nota warning in relation to W’s evidence, the ground of appeal was simply that the trial judge ought to have directed the jury to take “great care” when considering W’s evidence due to his age at the time of the incident and the interval between the incident and his evidence. There was some attempt to expand on that in the Case and Argument and in oral submissions to the effect that his evidence was not consistent with the medical evidence about the absence of marks on A’s face and because W had referred to the appellant striking him with an “iron fist”; reflecting perhaps his interest in Transformers.
[71] At one time, the evidence of children could be excluded by a trial judge as incompetent. This was not on the basis that children were not capable of giving credible and reliable evidence, but because they might not have fully understood the significance of the oath (Hume: Commentaries II 342). The practice came to be to regard children as competent if they appeared to have understood what they saw or heard, were able to give an account of it and appreciated the obligation to tell the truth (Walker & Walker: Evidence (1st ed) para 349 under reference to Dickson: Evidence (3rd ed) para 1543). There are examples of very young children being admitted or excluded depending on whether they had made a statement de recenti (ibid).
[72] In the past, certain other jurisdictions may have mistrusted the evidence of children. Some retained a special requirement of corroboration or a practice of warning juries about their evidence (see eg for England, Spencer (ed): Children and Cross Examination p 1). These rules have gradually been abolished in the modern era (ibid p 4). The general approach in Scotland has been different. It is as neatly stated by Alison: Practice 432 as follows:
“It happens very frequently in criminal trials, that children are called upon to give the most important information, from having witnessed acts of the greatest moment in the case; and when they are simple and ingenuous, they generally give better evidence than any other person.”
[73] The modern approach is to regard the evidence of children in exactly the same way as that of other persons. Judges are no longer allowed to ask questions designed to ascertain whether a child understands the nature of a witness’s duty to tell the truth or whether the child understands the difference between truth and falsehood (Vulnerable Witnesses (Scotland) Act 2004, s 24). The basis as to why a cum nota warning should therefore have been given in relation to the evidence of W remains a mystery. It was not suggested that W was in any way deficient in his capacity to understand events by the time he appeared at the commission. It was not said that his memory had been affected by the passage of time. It may have been; but if it had, no previous different account given by him de recenti was adduced in evidence. If there had been a discrepancy between his evidence and an earlier account, the judge may have wished to address it in his charge. As matters stood, however, there was no reason to give the jury any special direction on how to treat the evidence of W. It would not have been appropriate to do so. His evidence ought to have been assessed in the same way as that of any other witness. In any event, W’s age at the time of the incident and at the commission would have been well known to the jury. The jurors would have been familiar with accounts of events given by children and the truthfulness and reliability of children generally. In such circumstances it is not possible to conclude that any miscarriage of justice has occurred as a result of any failure on the part of the judge to mention any of these matters.
[74] For all of these reasons, the appeal on this ground must also be refused.