R v Kai-Whitewind
| Jurisdiction | England & Wales |
| Judge | Lord Justice Judge |
| Judgment Date | 03 May 2005 |
| Neutral Citation | [2005] EWCA Crim 1092 |
| Docket Number | Case No: 200401122 D1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 May 2005 |
[2005] EWCA Crim 1092
Lord Justice Judge
Deputy Chief Justice Of England And Wales
Mrs Justice Hallett DBE AND
Mr Justice Leveson
Case No: 200401122 D1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT BIRMINGHAM
Mr Justice Gross and a jury
Royal Courts of Justice
Strand, London, WC2A 2LL
J. Cooper and R. Furlong for the Appellant
W. Davis QC and Miss H. Kubik for the Prosecution
This is an appeal by Chaha'oh Niyol Kai-Whitewind against her conviction on 10th December 2003 at Birmingham Crown Court before Gross J and a jury of murder. The deceased was the youngest of her three children, Bidziil, who was born on 9th May 2002 and died on 1st August 2002.
The issue at trial was whether the child was indeed the victim of a deliberate killing, as the Crown alleged (and the jury found), or died from natural, even if unexplained, causes.
There are two distinct grounds of appeal. First, it is argued that the conviction, said to be "entirely based" on conflicting expert opinions, cannot survive the decision of this Court in R v Cannings [2004] EWCA Crim 1, [2004] 2 CAR 7 p. 6Second and alternatively, it is submitted that fresh evidence serves to undermine the safety of the conviction: if this evidence had been available to the jury, its decision might reasonably have been different ( R v Pendleton [2002] 1 WLR 72).
Sudden Infant Death Syndrome
In criminal trials in which the death of an infant or infants is being investigated, terms like "cot" or "crib" death, or sudden infant death syndrome (SIDS) or an "unascertained" or "unexplained" or "undetermined" cause of death are frequently used. Unfortunately those who use these words (even very highly regarded experts) do not always intend to convey precisely the same meaning, or understand the word in the same way. This uncertainty of definition can give rise to misunderstanding. In the CESDI SUDI Study (1993–1996) into Sudden Unexpected Deaths in Infancy this problem is highlighted in a section entitled "Inconsistencies in the definition of SIDS". The text which follows is self-explanatory:
"The definition of SIDS allows considerable scope for inconsistency … Two pathologists making the same findings may not agree on whether they constitute an adequate explanation for death: for example, if there are signs of respiratory infection one might give this as the cause of death, while the other might regard it as coincidental and classify the death as SIDS. In addition, pathologists and coroners may vary in their readiness to accept SIDS as a registered cause of death, sometimes preferring terms such as … "unascertained". … These variations may give rise to inconsistency in the reporting of SIDS in different places in the United Kingdom. Inevitably, there will be similar inconsistencies between different countries, so that international comparisons of SIDS rates should be interpreted with caution … The exact meaning of the lay term "cot death" ("crib death" in the USA) which was coined by Barratt in 1954, is still the subject of debate. Some people restrict it to deaths meeting the Beckwith criteria for SIDS, while others give it the wider meaning of any infant death that occurs suddenly and unexpectedly, regardless of whether or not a cause is subsequently determined. Besides this impression, the term can be misleading by its implication that death always occurs in the cot, which, although usual, is not invariable.
Finally, the grouping of the deaths in the Confidential Enquiry of Stillbirths and Deaths in Infancy, CESDI [study], which was given the acronym SUDI (sudden unexpected deaths in infancy) does not correspond with any single ICD or ONS classification and includes various other unexpected deaths as well as SIDS."
(ONS is the Office for National Statistics: ICD is the International Classification of Diseases.)
In Byard's Sudden Death in Infancy, Childhood and Adolescence (2nd edition – 2004) to which our attention was drawn, precisely the same point was made.
"SIDS appears destined to continue to be a difficult, contentious and emotive term that can, unfortunately, be used very easily as a "diagnostic dustbin" to disguise incomplete investigations and inaccurate conclusions … It is a rather disappointing fact that debate continues about the most appropriate definition of SIDS … Our understanding of the pathogenesis of SIDS is still incomplete, and this is reflected in the vast number of often contradictory papers that have been published in recent years."
In Cannings itself the Court endeavoured to explain:
"The convenient acronym SIDS requires a little amplification, particularly in relation to the last "S", which stands for syndrome. Treating the problem as a syndrome tends to obscure the fact that sudden unexplained infant deaths occur in different circumstances, and some may be multi-factorial, the result of a coincidence of processes which, taken in isolation, would not necessarily cause death. No underlying condition for every death categorised as SIDS has been identified. The critical point of each such death is that it is indeed unexplained, and that its cause or causes, although natural, is or are as yet unknown. SIDS does not apply to deaths, or if already attributed to SIDS, ceases to apply to deaths which are clinically explicable or consequent on demonstrable trauma. In each SIDS case the mechanism of death is the same, apnoea, loss of breath or cessation of breathing. In the true SIDS case we do not know why the particular infant's breathing stopped. All we know is that for some unexplained reason it did. One obvious reason for loss of breath is smothering or some deliberate interference with the infant's normal breathing process. However the same process, with the same result, also occurs naturally."
This analysis was based on the evidence then before the Court. However, it will become apparent when we examine the second ground of appeal that cases are sometimes categorised as SIDS, notwithstanding that an explanation, for example, accidental suffocation caused by overlaying (when an infant is sleeping with an adult) is available. Some experts regard such an accident as falling within the SIDS classification: others do not. Yet whether the infant has been accidentally or deliberately smothered, the post mortem changes will be similar. These differences of view can be crucial. For the present, however, we simply highlight the importance both to courts, and to expert witnesses giving evidence by reference to the results of research in this field, of identifying precisely what the individual expert or researcher has or had in mind by the description of a "cot" or "SIDS" death.
We shall not attempt any compendious redefinitions. Where appropriate, however, we shall comment on the way in which individual terms are used by the expert whose evidence is being analysed.
The Facts
The appellant was married to Kim Whitewind. He was the father of her eldest child, who was four years old at the relevant time, but not of her daughter, then two years old. According to the appellant he was not the father of Bidziil, who was conceived in the course of a rape.
Bidziil was born by Caesarean section, a healthy little boy. His birth weight was 4340 grammes at 39 weeks gestation. Although there was a history of maternal diabetes, the baby's heart structure was sound, and his death was not linked to his mother's condition.
On 21st May, when Bidziil was twelve days old, the appellant was visited at her home at 2 Maas Road in Birmingham by a health visitor, Ms Hannaford. It was an introductory visit. During the course of the conversation, the appellant told her about the circumstances of Bidziil's conception and that he had been an unwanted baby. His father was not her husband, Kim, who she told Ms Hannaford, was nevertheless supportive. She also told her that she was suffering from depression, and seeing the community psychiatric nurse, but that she was not taking anti-depressants because she was breast feeding her baby. As summarised by Gross J, she told Ms Hannaford that she had once felt like placing a pillow over her daughter's face and also, that there was a fleeting moment when, for no particular reason, she felt like killing Bidziil. She had dealt with that by putting the baby down and walking away. When Ms Hannaford asked how she would deal with such a situation if it happened again, she said that she did not know.
Ms Hannaford said that it was not unusual to hear mothers say that they felt like killing their baby and she placed no particular reliance on the comment, but she agreed that she had never before heard a mother express thoughts as specific as placing a pillow over her baby's face. She felt it appropriate to revisit the issue of anti-depressants with the community nurse. She opened a supplementary file on the case "because of what the defendant had said to her, her depression, and her feelings towards Bidziil with regard to the manner of his conception". Subject to those concerns, she felt that the appellant was a caring mother, and Bidziil appeared in good health. Arrangements were made for Ms Hannaford to meet again with the appellant.
In the morning of 6th June the appellant telephoned NHS Direct, and reported that while Kim Whitewind was changing the baby's nappy, Bidziil was "kicking about so that my husband took hold of his legs and opened them so that he could clean the baby. And he heard a click of the right hip. There was a clicking noise, he put the nappy on the baby, left the baby on the bed and he hasn't moved his leg since"...
To continue reading
Request your trial
-
R v Henderson and Others
...on a logically justifiable basis. That entails a logically justifiable basis for accepting or rejecting the expert evidence (see R v Kai-Whitewind [2005] 2 Cr App R 31 [90]). Hearing these three appeals in succession affords an opportunity to make observations on the correct approach and th......
-
Ben Butler v The Crown
...on a logically justifiable basis. That entails a logically justifiable basis for accepting or rejecting the expert evidence (see R v Kai-Whitewind [2005] 2 Cr App R 31 [90]). Hearing these three appeals in succession affords an opportunity to make observations on the correct approach and th......
-
Oladapo Oyediran v The Crown
...on a logically justifiable basis. That entails a logically justifiable basis for accepting or rejecting the expert evidence (see R v Kai-Whitewind [2005] 2 Cr App R 31 [90]). Hearing these three appeals in succession affords an opportunity to make observations on the correct approach and th......
-
Burridge v R
...(save in unusual circumstances) to reflect on the acceptability of that opinion.” 97 This latter difficulty was also discussed in R v. Kai-Whitewind [2005] 2 Cr App R 31, R v. Meechan [2009] EWCA Crim 1701 and R v. Henderson [2010] EWCA Crim 1269 the latter of which underlined that a con......
-
Table of Cases
...v. Jewitt, [1985] 2 S.C.R. 128, [1985] S.C.J. No. 53 ..................................................... 169 R. v. Kai-Whitewind, [2005] EWCA Crim 1092 .............................................. 18, 252, 288 R. v. Kamara, [2000] EWCA Crim 37 .................................................
-
Don't Mention the War: The Court of Appeal, the Criminal Cases Review Commission and Dealing with the Past in Northern Ireland
...NICA in RvGordon [2001] NIJB 50 and Mulholland n 131 above.139 Criminal Appeal (Northern Ireland) Act 1980, s 25.140 RvKai-Whitewind [2005] EWCA Crim 1092; [2005] 2 Cr App R 31.141 n 127 above.142 ibid at [30].143 RvCooper [1969] QB 267.144 The Court of Appeal has deemed the test inappropri......
-
Expert Opinion Evidence: The Middle Way
...5 at [11]. Dr Nolan’s testimony is worth readingfor its identification of how lax the judicial approach towards expert evidence is.72 [2005] 2 Cr App R 31.73 Ibid. at [5], referring to Byards Sudden Death in Infancy, Childhood and Adolescence,2nd edn (2004) at 460.74 Rv Cannings [2004] 1 W......
-
Admitting scientific expert evidence in the UK: reliability challenges and the need for revised criteria – proposing an Abridged Daubert
...(2001), 2 Cr App R 5.R v Harris and others (2005), EWCA Crim 1980.R v Jenkins (Sioˆn) (2004), EWCA Crim 2047.R v Kai-Whitewind (2005), 2 Cr App R 31.R v Turner (1975), QB 834 841.Winfrey v The State of Texas (2010), TexCrim Ap No PD-0987-09.Corresponding authorProfessor Jane L. Ireland can ......