Syeda Sokina Begum v. Her Majesty’s Advocate [2020] HCJAC 16

Note of appeal against conviction:- On 1 March 2019, following a trial at Aberdeen High Court, the appellant was convicted of a charge of assault to severe injury and danger to life by shaking GN born in 2016 on 1 January 2017. On 9 April 2019 the appellant was sentenced to 3 years imprisonment. The appellant appealed against her conviction and four grounds passed the sift:- (1) that the judge failed to set out what the expert evidence was and what the jury had to accept to convict the appellant and they ought to have been reminded that “today’s scientific orthodoxy may become tomorrow’s outdated learning” and the evidence required to be assessed with “special care”; (2) that the jury should have been directed that the Crown required to exclude not only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; (3) that 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; and (4) 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, it being contended that the reports contained inadmissible hearsay. It was submitted on behalf of the appellant that all 4 grounds of appeal were linked. It was conceded that whilst the position was different from the circumstances in Liehne v HMA 2011 SCCR 419 in that there were no competing medical opinions in the present case the position of the defence was that the child had not been well when handed over to the appellant and with medical science changing there was a real possibility that something unknown had caused the injuries and the judge ought to have provided the jury with a route to verdict. It was submitted that the trial judge failed to give the jury any directions on how to deal with the medical experts’ opinions with neither of the Crown experts, Mr Richards and Mr Newman, ruling out that there had been some cause of which medical science was unaware. It was further submitted that in light of some of the evidence led about the behaviour of the child prior to being handed over to the appellant, the judge ought to have directed the jury that, if they held that the baby had not been behaving normally when handed into the appellant’s care, they would have to exclude the possibility of a prior assault. The defence was that if there had been an assault it had not been by the appellant and the judge’s criticism of the lack of a special defence of incrimination was misplaced as such a special defence was inappropriate as there had been no direct evidence that anyone else had caused the injuries. In relation to the jury being provided copies of the expert reports and their retention it was submitted that the jury could give undue weight to the summaries of witness statements contained therein rather than what was given in evidence in court. On behalf of the Crown it was submitted that the extent to which a trial judge should address the evidence in the charge is largely a matter for the discretion of the trial judge in light of the particular circumstances of the case. It was submitted that there was no contradictory medical evidence in this case and any issues were theoretical and a jury ought to be directed and reach a decision on the basis of the current state of medical opinion and knowledge. It was accepted that it was necessary for the jury to be directed to exclude any realistic possibility of an unknown cause, however, there was no suggestion that there was any natural explanation/non-accidental cause, rather, the issue was the timing of the infliction of the injury. As there was no realistic possibility of an unknown cause no such direction was required. Similarly, in relation to the possibility of another person being responsible for the infliction of the injuries, in the absence of any evidence of that, no such direction was necessary. In relation to the distribution of the experts’ reports it was submitted that neither expert departed from the position as stated in their respective reports and there was no basis to think that the jury would focus on the witness summaries rather than the evidence given by the witnesses in court. Here the court refused the appeal. The court considered that in relation to the extent to which trial judges should summarise expert evidence this was not a complex case. There was no competing expert evidence of a complex technical nature, the evidence of the two experts was straight forward and both reached the same conclusion. Similarly, neither expert departed from their respective reports in their evidence. The trial judge had provided a clear route to a verdict in that the jury were directed that to convict they were “dependent upon the evidence of the relevant medical experts”. The appellant at interview had stated the baby was fine before she came into her care and that she had not shaken the baby. The judge had directed the jury that if they accepted her evidence that she had not shaken the baby they required to acquit her. In convicting the appellant the jury must have rejected any suggestion that the child was unwell prior to coming in to the appellant’s care and rejected her denial about not shaking the baby and accepted the medical experts’ opinions. In relation to the alleged failure by the trial judge to give a direction to the jury about the theoretical possibility that in the future medical science might uncover another cause of the haemorrhages, the court considered that to be wholly speculative in light of what was considered to be a well settled area of medical knowledge. In relation to the alleged misdirection in failing to give the jury a specific direction on the need to eliminate the possibility that someone else had shaken the child prior to coming into the care of the appellant the court noted that the evidence of the experts was that the injuries had been caused at the same time as the collapse and there was no evidence that either the parents nor the child’s sister had done anything to injure the baby. In relation to the issue of the jury having copies of the experts’ reports, it is generally a matter for the trial judge to decide whether distributing copies of a report will assist jurors in following an expert’s evidence. The court stated that the issue is one of fairness. If, for example, a report contains material which is prejudicial/inadmissible care must be taken to move that material from any copies of the report to be shown to the jury. In the present case any reference to statements made by the appellant in the reports were admissible and any statements from witnesses formed the basis of the experts’ conclusions rather than being evidence of the truth of the contents of those statements. The court noted that the contents of the reports were fully explored in evidence and in defence counsel’s speech to the jury and any hearsay within the reports was adequately dealt with in the trial judge’s directions.