S.I. v. Her Majesty’s Advocate [2020] HCJAC 28

Note of appeal against conviction:- The appellant was convicted after trial on indictment at the sheriff court of a charge 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 and causing her severe injury and permanent disfigurement. The appellant appealed against his conviction. The circumstances were that on 30 May 2017 the complainer was in the sole care of the appellant. On that date she was admitted to hospital with serious injuries including 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 her right eye. The appellant reported that whilst the complainer had been unattended she had fallen from the sofa, despite the medical expert opinion being that the complainer who, as a premature baby, had the development of a 2 day old child was a non-mobile infant and would have been incapable of moving in the manner described by the appellant. The medical evidence was consistent with the constellation of injuries being non-accidental, in particular, by forcible shaking, being the most common cause of such an injury. The medical findings were considered to be a natural progression of the acute subdural haematoma identified and the result of a single event occurring on 30 May 2017. It was contended on behalf of the appellant that, whilst it had been accepted at trial that the injuries seen were non-accidental in nature, the appellant had not been responsible for their infliction. It was submitted that the rib injuries and sub-conjunctival haemorrhage could have occurred prior to 30 May 2017 and the injuries attributable to 30 May must have been sustained accidentally. Whilst it was accepted on behalf of the appellant that there was a sufficiency of evidence in relation to the charge the ground of appeal advanced criticised the trial sheriff’s directions in relation to excluding any other incidents which could have explained the injuries prior to 30 May 2017. It was submitted on behalf of the appellant that the trial sheriff overstated the evidential position in his directions to the jury as despite the mother and grandmothers’ denials about there being any other incidents the circumstances did not exclude the possibility of the complainer’s injuries being caused at the hand of others before 30 May 2017. On behalf of the Crown it was submitted, with reference to Bakhjam v HMA 2018 JC 127,  that to advance a particular factual position on behalf of the defence there must be evidence to justify it and in the present case the appellant did not give evidence and any position advanced on his behalf came in the form of his police interview under caution and a witness statement, led by the Crown during their case. In those, the appellant excluded the possibility of the complainer receiving an injury prior to 30 May 2017 and further excluded the child’s mother or grandparents from causing any injuries to the complainer. The appellant did not refer to anyone else having any caring role for the child at the material time. It was submitted that the sheriff’s directions were an accurate account of the evidence before the jury and there was no need to provide a specific direction to eliminate a theoretical possibility of another event for which there had been no evidence. Here the court refused the appeal. The court noted that there was evidence that the bruising, sub-conjunctival haemorrhage, bleeding resulting in chronic subdural haematoma causing a degree of raised intracranial pressure and the fractured ribs could all have arisen from the one incident on 30 May 2017. The complainer had been in the sole care of the appellant on that day and evidence was led of a shaking mechanism being the cause of all of the injuries seen. The court noted that there was no alternative explanation before the court suggesting that some other mechanism may have caused the injuries prior to 30 May. Whilst the court recognised that the trial sheriff may have been more precise in the directions that were given when viewed as a whole the charge made clear that the jury had to be satisfied (1) that the injuries found following admission on 30 May were caused by trauma sustained on that day; (2) that trauma was non-accidental; and (3) that the injuries occurred as a result of an assault by the appellant. The sheriff repeatedly directed the jury that in relation to the appellant’s police statement and later police interview if any part of these gave rise to a reasonable doubt they required to acquit the appellant.