High Court refuses appeal of man convicted of assaulting a baby

The appellant, known as SI, submitted that the serious injuries could have happened while the child was being looked after by someone else.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Glennie and Lord Turnbull.

Fallen from a sofa

The child was admitted to hospital with serious injuries on 30 May 2017, when she was in the sole care of the appellant. These included 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 right eye.

The appellant said at the time that the child had fallen from a sofa whilst momentarily unattended. This position was not supported by the medical experts given that the child was a non-mobile infant who had the development of a two-day-old child.

The child was admitted to hospital again on 12 July 2017 for other injuries. In the opinion of a consultant paediatric neurosurgeon, these were the result of a single event occurring on 30 May 2017. Retinal haemorrhages, a common finding in baby shaking cases, were identified on 18 July.

The appellant gave no evidence during trial, and maintained his earlier position that the injuries could have been caused when the child was in someone else’s care. He excluded the child’s mother or maternal grandparents as having been likely to cause any injuries, and named no other person as having any caring role for the child at that time.

The appellant submitted that the sheriff had over-stated the position in his charge to the jury by saying that “there were no other incidents”. The true position was that there was no evidence of other incidents, but that did not totally exclude the possibility of injury at the hands of another. There was no evidence to support such a definitive statement by the sheriff.

The Crown submitted that the directions were an accurate reflection of the evidence before the jury. There was no need for the sheriff to give a specific direction to eliminate the possibility of another event which had not arisen in evidence.

Ample evidence

The opinion of the court was given by Lady Dorrian. She said of the evidence before the jury: “There was no alternative reasonable explanation for these injuries, nor was there any evidence pointing to an incident prior to 30 May which might have resulted in trauma. There was evidence suggestive of a subsequent episode of shaking resulting in the retinal haemorrhages identified in July 2017. There was therefore ample evidence before the jury from which they would have been entitled to conclude that the appellant had assaulted the child on ‘various’ occasions during the period of the libel, causing the injuries libelled.”

On the directions given by the trial sheriff, she said: “It would no doubt have been preferable had the sheriff been more precise in relation to the direction which is criticised, saying that there was no evidence of other incidents in the lead up to 30 May that would have explained the injuries being referred to, but the notion that the jury might thereby have been misled or somehow failed to give due weight to the defence submissions must be rejected.”

She continued: “The jury would not have understood the sheriff to have been stating the evidential position to be other than it actually was. The sheriff proceeded to give the jury full and detailed directions about the appellant’s police statement and subsequent interview, correctly directing them that if any part of these gave rise to a reasonable doubt they required to acquit, a direction which was repeated later in the charge.”

On the specific directions mentioned by the appellant, she said: “The directions which are singled out for criticism require to be seen in the context of the whole charge, and of the evidence which was before the jury. Having regard to both we do not think there is any merit in the criticisms advanced.”

She concluded: “The sheriff’s directions overall were quite clear, balanced, and not in any way liable to confuse the jury, or cause them not to give due consideration to any relevant points advanced for the defence.”

For these reasons, the appeal was refused.