Appeal Following Upon A Reference From The Scottish Criminal Cases Review Commission
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Drummond Young,Lord Justice Clerk |
| Judgment Date | 25 September 2014 |
| Neutral Citation | [2014] HCJAC 114 |
| Published date | 23 October 2014 |
| Court | High Court of Justiciary |
| Date | 25 September 2014 |
| Docket Number | XC82/13 |
| 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....
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