APPEAL AGAINST CONVICTION BY SI AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC

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[1] 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

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.

[2] 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

[3] 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.

[4] 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

[5] 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

[6] 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

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”. He excluded the child’s mother or maternal

grandparents as having been likely to cause any injuries to the child, and named no other

[7] 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

[8] 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

“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 mother and from

what the accused told the police, there were no other incidents in the lead up to 30th

The sheriff over-stated the position by saying “there were no other incidents”: the true

position was that there was no evidence of other incidents. However, the denials by the

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.

[9] If a particular factual proposition is to be advanced for the defence there must be

evidence to justify that proposition: Bakhjam v HMA 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

[10] 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

made to Begum v HMA [2020] 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

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

[11] 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. 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

[12] 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

[13] 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

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.

[14] 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

[15] 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

libelled only if satisfied that there were two separate events in each of which the appellant

[16] 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

“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

In light of Begum 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

[17] In these circumstances the appeal must be refused.

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST CONVICTION BY SI AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_28 (23 June 2020) URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_28.html Cite as: [2020] HCJAC 28, 2020 GWD 24-321, [2020] ScotHC HCJAC_28

Scottish High Court of Justiciary Decisons