Begum v HM Advocate

JurisdictionScotland
JudgeLord Justice General (Carloway),Lord Menzies,Lord Turnbull
Judgment Date16 April 2020
Neutral Citation[2020] HCJAC 16
CourtHigh Court of Justiciary
Date16 April 2020
Docket NumberNo 23

[2020] HCJAC 16

High Court of Justiciary

Lord Justice General (Carloway), Lord Menzies and Lord Turnbull

No 23
Begum
and
HM Advocate
Cases referred to:

Carroll v HM Advocate [2015] HCJAC 75; 2015 SCL 859; 2015 GWD 28–477

D'Arcy v HM Advocate [2013] HCJAC 173; 2014 GWD 1–12

Elsherkisi v HM Advocate [2011] HCJAC 100; 2011 SCCR 735; 2012 SCL 181; 2011 GWD 37–758

Fenton v HM Advocate [2014] HCJAC 70; 2014 SCCR 489

Gilroy v HM Advocate [2013] HCJAC 18; 2013 JC 163; 2013 SCL 308; 2013 GWD 5–129

Grant v HM Advocate 1938 JC 7; 1938 SLT 113

Hainey v HM Advocate [2013] HCJAC 47; 2014 JC 33; 2013 SLT 525; 2013 SCCR 309; 2013 SCL 499

Lauder v HM Advocate [2016] HCJAC 30; 2016 SCL 459; 2016 GWD 19–337

R v Henderson [2010] EWCA Crim 1269; [2010] 2 Cr App R 24; [2010] 1 FLR 547; 115 BMLR 139; [2010] Crim LR 945; [2010] Fam Law 917; 107 (26) LSG 16

R v Holdsworth [2008] EWCA Crim 971; (2008) 102 BMLR 112; [2009] Crim LR 195; (2008) 152 (19) SJLB 28

Ramzan v HM Advocate [2015] HCJAC 9; 2015 SCL 300; 2015 GWD 6–121; [2015] BVC 13

Sim v HM Advocate [2016] HCJAC 48; 2016 JC 174; 2016 SCCR 303; 2016 SCL 612; 2016 GWD 17–308

Smith v HM Advocate [2016] HCJAC 67; 2017 JC 54; 2016 SCL 773; 2016 GWD 26–476

Walker or Smith or Liehne v HM Advocate sub nom Liehne v HM Advocate [2011] HCJAC 51; 2011 SLT 1114; 2011 SCCR 419; 2011 SCL 755

Younas v HM Advocate [2014] HCJAC 114; 2015 JC 180; 2014 SLT 1043; 2014 SCCR 628; 2015 SCL 30

Textbooks etc referred to:

Judicial Institute for Scotland, Jury Manual (Judicial Institute for Scotland, Edinburgh, January 2020), p 36.4 (Online: www.scotland-judiciary.org.uk/Upload/Documents/Jury_Manual_20200113_1047.pdf (26 May 2020))

Justiciary — Procedure — Charge to jury — Assault upon baby by shaking to severe injury and danger to life — Expert evidence on cause of brain haemorrhage in babies — No direction given regarding possibility of future advances in medical science discovering alternative cause of brain injury in babies — Whether misdirection — Whether miscarriage of justice

Justiciary — Evidence — Productions — Jury given and allowed to retain copies of expert reports — Whether unfair

Justiciary — Evidence — Admissibility — Hearsay — Jury given and allowed to retain copies of expert reports — Whether reports contained inadmissible hearsay

Syeda Begum was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, the libel of which set forth a charge of assault to severe injury and danger to life. The appellant pled not guilty and the cause came to trial before Lord Uist and a jury at the High Court of Justiciary in Aberdeen. On 1 March 2019, the appellant was convicted of assault to severe injury and danger to life. On 9 April 2019, the appellant was sentenced to a period of three years' imprisonment. The appellant appealed against conviction to their Lordships in the High Court of Justiciary.

The appellant was charged with an assault on an eight-month-old baby, whom she was babysitting. The baby was admitted to hospital while in the care of the appellant. She was found to have suffered extensive brain haemorrhages. The appellant denied shaking the baby. She maintained that the injuries could only have been sustained prior to the baby coming into her care. Evidence was led from two medical experts to the effect that the injuries suffered would have had an immediate and obvious impact upon the baby. The experts had prepared reports that were led in evidence and distributed to the jury. The trial judge directed the jury, inter alia, that they would have to accept the expert evidence before they could convict and that the factual basis upon which the experts' opinions were based required to be proved. The jury convicted the appellant of assault to severe injury and danger to life. She appealed.

The appellant argued that the trial judge had erred by failing to direct the jury on the possibility of future advances in medical science that might discover alternative causes of brain haemorrhages in babies. The judge erred in allowing the jury to retain copies of the expert reports, as the reports contained inadmissible hearsay.

The Crown submitted that the trial judge had properly directed the jury that they required to reach a verdict on the current state of medical knowledge. It was a matter for the judge's discretion whether to allow the jury to be provided with copies of expert reports. In all the circumstances, there had been no unfairness to the appellant.

Held that: (1) there was no requirement on a trial judge to rehearse the evidence, it being for the parties to address the jury on what evidence was significant and to make submissions, if appropriate, on credibility and reliability (para 48); (2) the trial judge required to direct the jury on the need to exclude the realistic possibility of an unknown cause of injury, but there was no requirement to give the jury a direction on the theoretical possibility that future medical science might uncover a previously unknown cause (paras 52, 53); (3) whether an expert report should be given to the jury was a matter for the judge's discretion, having regard to whether it would assist the jury in following his or her testimony or in reaching their verdict, and the requirement of fairness. It had been entirely reasonable for the jury to have been given copies of the reports (paras 54, 55); (4) the evidence of the witness statements contained in the reports was admissible as the purpose of leading evidence was to understand the factual basis of the experts' conclusions, not to establish the truth of the content of the statements (paras 56–58); and appeal refused.

Grant v HM Advocate 1938 JC 7 considered and Younas v HM Advocate2015 JC 180 and R v Holdsworth(2008) 102 BMLR 112applied.

The appeal was heard before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Menzies and Lord Turnbull, on 17 March 2020.

At advising, on 16 April 2020, the opinion of the Court was delivered by the Lord Justice General (Carloway)—

[1] Opinion of the Court— On 1 March 2019, at the High Court in Aberdeen, the appellant was convicted of a charge which libelled that:

‘[O]n 1 January 2017 at … you … did assault [GN], born … 2016 … and did shake her by the body to her severe injury and the danger of her life’.

On 9 April 2019 she was sentenced to three years' imprisonment.

[2] On 15 July 2019, the appellant lodged a note of appeal containing 16 separate grounds of appeal and an omnibus seventeenth ground. On 2 September, leave to appeal was refused at first sift. On 14 November, leave was granted in respect of three grounds (grounds (1), (2) and (4)). An application to reintroduce seven of the remaining grounds was, with one exception (ground (3)), refused (see statement of reasons HCA/2019/187/XC).

[3] The case is a distressing one involving the shaking of a baby in a manner which caused life threatening injuries. Fortunately, the baby made a remarkable recovery. She was discharged home within three weeks of her hospital admission. The legal issues which remain are encompassed in the four interlinked grounds of appeal. Three of these concern the adequacy of the trial judge's directions on expert evidence. It was contended, first, that the judge failed to set out what the expert evidence was and what the jury had to accept to convict the appellant. The jury ought to have been reminded that: ‘today's scientific orthodoxy may become tomorrow's outdated learning’; and therefore the evidence required to be assessed with ‘special care’. Secondly, the jury should have been directed that the Crown required to exclude not only any natural explanation for the injuries but also any realistic possibility of an unknown cause. Thirdly, the jury ought to have been directed that the Crown required to exclude the possibility that someone else had assaulted the baby, before she had come into the care of the appellant. It was said that there was evidence that the baby: had not been well prior to being handed over to the appellant; had not behaved normally when in her care; and had been handled inappropriately by her older sister in the period prior to being handed over. The final ground was that the judge erred in repelling a defence objection to copies of two expert reports being given to the jury and, after they had been ingathered, copies of one being given back to them. The reports were said to contain inadmissible hearsay. They did not reflect the testimony given at trial. When giving their evidence, the experts had provided further explanations and made qualifications and concessions to what was said in their reports.

Evidence in summary

[4] GN, who was about eight months old at the material time, is the daughter of KN and his wife YL. They have an older daughter, who was aged eight years. KN and YL operated a takeaway shop. Carole Leung, aged 34, worked in the shop. She introduced YL to the appellant. The appellant was to babysit GN at her own flat on 1 January 2017. She called at the shop at about 3.30 pm to pick up the baby. She was due to return her at about 9.00 pm. At 9.05 pm, the appellant sent Ms Leung a text message stating that her (the appellant's) own daughter had fallen asleep and asking if she could return the baby later. Ms Leung phoned the appellant, who was shouting and screaming that the baby was struggling to breathe. KN, YL and Ms Leung all went to the appellant's house. The appellant was standing at the stair door. She was holding the baby and saying that she did not know what to do with her. The baby was floppy and struggling to breathe.

[5] An ambulance was called. When the baby arrived at the hospital at 10.30 pm, she was critically ill. She was having seizures. She had subarachnoid, subdural and extensive bilateral haemorrhages and a hypoxic-ischaemic injury to her brain. At the trial, there was a joint report, from a consultant and an associate...

To continue reading

Request your trial
1 cases
  • Appeal Against Conviction By Si Against Her Majesty's Advocate
    • United Kingdom
    • High Court of Justiciary
    • June 23, 2020
    ...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 ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT