R v Doughty
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STOCKER |
| Judgment Date | 23 May 1986 |
| Neutral Citation | [1986] EWCA Crim J0523-18,[1986] EWCA Crim J0523-1 |
| Judgment citation (vLex) | [1986] EWCA Crim J0523-14 |
| Docket Number | No. 6875/C3/85 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 May 1986 |
[1986] EWCA Crim J0523-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Stocker
Mr. Justice Peter Pain
and
Mr. Justice Gatehouse
No. 6875/C3/85
MR. J.A. PRICE Q.C., and MR. T. RIGBY appeared on behalf of the Appellant.
MR. R. KLEVAN Q.C., and MISS A. TAYLOR appeared on behalf of the Crown.
On the 15th October 1985, in the Crown Court at Manchester in a trial conducted by Mr. Justice Caulfield before a Jury, this appellant was convicted of murder and sentenced to life imprisonment. He now appeals against that conviction, this court having granted his application for leave to appeal.
The Crown's case expressed shortly was this, that on the 14th January 1985, the appellant's wife, Alison, gave birth to their first child, a little boy called Stephen Nathan Doughty. The birth was by Caesarean section. On returning home from hospital, five or six days after the birth, she followed the medical advice that she had been given by the doctor that she should remain in bed. The consequence was that the appellant, a young man aged 26, had to take upon himself the running of the house, looking after his wife and looking after the baby. He did that task, according to the evidence, conscientiously. A health visitor who called at the house on several occasions observed on each occasion that the baby looked well cared for though on one visit she did feel there may have been some tension in the house and thought the appellant was showing signs of fatigue.
Until the incident giving rise to the death of the baby there is no doubt that it had been well looked after and it was putting on the appropriate amount of weight for a baby of that age. Alison, the appellant's wife, said that he was loving and attentive to the baby.
On the 31st January 1985, Alison got up and found the baby was missing from his cot. The baby had been sleeping downstairs with the appellant so that he could look after it and his wife could have presumably a full night's sleep. She, of course, questioned the appellant who ultimately directed her to the kitchen and on the table of the kitchen was the dead body of the baby wrapped in a dustbin liner.
The cause of death was considered in some detail at the trial by a pathologist, Dr. Lawler. He found bruising to the chest and some damage to the lungs, and in particular extensive diffuse bruising to the scalp which gave the impression of being one large bruise. The skull was fractured and the membrane between the brain and the skull showed generalised haemorrhage. The cause of death in his opinion was intracranial haemorrhage and a fractured skull. He took the view that the injuries were consistent with the baby's head having been crushed for a minimum of 30 seconds whilst the head was resting on a firm flat surface, such as the floor, and that such squashing would have required considerable force, but was consistent with somebody kneeling upon the baby and thus applying the force to the head on the floor.
In the course of police interviews, to part of which we shall refer in greater detail hereafter, the appellant gave a number of explanations. At first he explained that he had fed the baby twice during the night (we observed that he kept a careful record of the feeds), he had changed its nappy and that the baby's continuous crying got on his nerves. He said he fell asleep and then woke up finding the baby lying underneath him. In other words, he gave an explanation of accident. When further questioned, he accepted that he must have inflicted the injuries, but denied responsibilty for his actions. He gave explanations of blackout and asked to see a doctor. He did say that he could not really recall what had happened. There was psychiatric evidence to the effect that the trauma of these events might well perfectly genuinely have wiped out from his mind, at any rate from time to time, recollection of what the events had been. He admitted in temper squeezing the baby's chest. Then he admitted that he had covered the baby with cushions to silence the baby while he changed his nappy and had knelt on the cushions in order to stop the baby screaming.
He gave evidence to the effect that he was very happy at the birth of his son, that he had spent the time after his wife had returned from hospital caring and cooking for her, looking after the baby and generally cleaning the house. He gave an explanation that on the night in question he had fed the baby and twice changed his nappy. He could not recall whether he awoke for the next feed, but recalls the baby crying. He first of all covered the baby's face with his hand, then with a nappy, then with cushions and pressed them down in order to quieten the baby. He agreed he must have knelt on those cushions. He denied that he intended to hurt the baby. He said he fell asleep and awoke on the floor finding the baby beneath him and that in a state of shock he tried to conceal it in a bag which he put in the kitchen. It was clear from the way he gave evidence, and from the transcript, that he did appear confused and unclear in his recollection from time to time. He said that he did not remember killing the baby. He recalled putting his hand on its mouth and vaguely remembered part of what happened, but he did not intend to do harm. He said on that particular day he was very tired and knelt on the cushions to silence the baby.
As has already been observed, there were witnesses who gave evidence to the effect that the appellant was attentive and hard working for his wife and child after their return from hospital. As has already been observed, a psychiatrist testified that even without any attempt at lying people experiencing tragedy could genuinely fail to recall details.
At the close of the defence case, and in the absence of the jury, counsel for the appellant argued that there was evidence of provocation, that is to say, the crying and restlessness of the baby over at least a period of some hours prior to his death. We therefore think that we should shortly refer to some of the answers given during the course of interrogation by the police and to small parts of the appellant's own evidence as reflected in the summing-up. The learned judge fairly extensively dealt with the answers given to the police when the appellant was questioned. At page 25 letter F, he reminds them of this question and answer: "The defendant said, 'It's all my fault.' 'What is?' 'The baby dying.' 'What do you mean?' 'I shouldn't have been looking after it. I was too tired.'" Then the police intervened, saying, "'Hang on a minute. Are you saying you killed the baby?'" The answer was, "'Yes, but I didn't intend to.'" Then he was warned and cautioned and said, "'Well, I deserve to be punished for it. It's my fault, but I didn't mean the baby to die. I can't remember. When I woke up the baby was under me and he was dead. I cleaned his bum and changed him. I must have fallen asleep on top of him. I've not slept properly for ages.'" A little later on page 26, at letter D," 'All I remember is I gave the baby its first feed at 3.20. I think it was 3.20. I've got it written down at home. After that feed he kept crying with wind. I kept going to him to try and wind him. He just seemed to carry on crying. I kept going to him, then it got time for his second feed. I took him out of his cot and put him on the mat. I cleaned his bum and changed his nappy. He was getting on my nerves. I just put my hand over his mouth. It was stupid but I wanted him to stop crying.'" In a later passage recorded on page 29, at letter D of the summing-up, he was asked, "'The officers have told me you were very distressed.' 'Yes.' 'Quite openly you told them that at some stages you were annoyed.' 'I may have got a bit annoyed. I was getting aggravated, he was annoying me.'" A little later on, "'He was screaming a lot, I tried to stop hirn by putting my hand over his mouth. It made him worse. It's only commonsense when you think about it, it's bound to do.'" On page 31, at letter D, he was asked, "'Did you say you had lost your rag?'" Answer, "I didn't say it like that, but I did lose my temper. I don't lose it easily." On page 33, at letter D, he was asked, "'You were fed up with looking after it because it wouldn't keep quiet.'" Answer, "'That's what happened. It was building up during the week. I was tired but I was blacked out. You hit the nail on the head. I was just getting more and more tired. I've done it, I know I have. That's what happened.'" On page 34, he was asked, "'Do you think you were in such a temper that you can't remember separate actions you did?'" The answer was, "'Probably.'" At letter D, "'I can just remember putting them on him and then putting my weight on him. I think I was trying to wind him. I am not sure. I'd lost my temper.'" Then at letter F, "'What did you do, kneel on him, sit on him, or what?'" The answer was, "'My hands I think, I pressed down on him with my hands and knelt on him as well.'" "'Why?'" "'Just to keep him quiet and stop him screaming.'" "'Did he go quiet?'" "'Slightly, but he still screamed. No matter how hard I tried he still seemed to scream harder.'" Then he described what he had done after that. Then on page 36, he was asked, "'Do you think you are trying to forget part of it?'" He said, "'May be - may be just in temper.'" At letter F, "'I wouldn't use so much pressure but being in such a bad temper, I just used more than I thought I was doing.'" On page 37, it was put to him, "'And each act getting progressively worse as you progressively lost your temper.'" "'Yes.'" "'Finishing up with you putting one or two cushions over the...
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