Woman who shook eight-month-old baby loses appeal against conviction

A woman who was sentenced to three years’ imprisonment for shaking an eight-month-old baby and endangering her life has lost her appeal against conviction.

Syeda Begum appealed on the grounds that the trial judge had misdirected the jury regarding expert evidence and had erred in repelling a defence objection to expert reports given to the jury that were said to contain hearsay evidence.

The appeal was heard by the Lord Justice-General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull.

Extensive injuries

The baby, GN, was to be babysat by the appellant on New Year’s Day 2017 from 3pm to 9pm. At 9:05pm that day, the appellant was phoned by a friend of the baby’s parents and reported that the baby was struggling to breathe. The parents and the friend attended the home of the appellant, and phoned an ambulance. When the baby arrived at the hospital at 10.30pm, she was in a critically ill state and was having seizures. She had subarachnoid, subdural and extensive bilateral haemorrhages and a hypoxic-ischaemic injury to her brain.

The baby’s mother reported that she had been feeding normally earlier in the day and was in good health at that time. The doctors who examined the baby concluded that her combination of conditions was “highly suspicious of non-accidental injury”, particularly abusive head trauma. The baby later made a full recovery, and was discharged from hospital within three weeks of her admission.

When the appellant was interviewed by the police, she stated that during her time with GN, she had thrown her up in the air several times before catching her, and that this was “normal play” she had with the baby. The evidence given by GN’s parents was inconsistent and they could not remember several pieces of information. However, both of them referred to the baby being in good health earlier in the day.

A friend of the family, Ms Leung, also testified that the couple’s other child, an eight-year-old, could be quite rough in her handling of the baby, including on the day before she was admitted to hospital. During the trial, the jury also heard from two expert witnesses who reviewed the baby’s injuries. They testified that the baby’s condition was consistent with acute deterioration that would have occurred around the time she became unwell.

The appellant’s case was based on four grounds of appeal. The first was that the judge ought to have reminded the jury that expert evidence should be assessed with “special care” due to the pace of scientific advancements. The second was that the jury ought to have been directed that the Crown had to remove the possibilities of both natural explanations or reasonable chance of an unknown cause. The third was that the jury ought to be directed that the Crown was required to remove the possibility of another party assaulting the baby before she came into the appellant’s care.

The fourth ground was that the defence’s objection to the jury being given copies of medical reports prepared by the expert witnesses, who had since made qualifications and concessions regarding the content of those reports, should have been allowed, since the reports contained inadmissible hearsay and did not reflect what was said during trial.

No competing expert evidence

The opinion of the court was delivered by Lord Carloway. He firstly addressed the appellant’s submission that the case was a complex one and that the judge needed to give the jury a clear route to verdict, saying: “This was not a complex case. There was no competing expert evidence. The evidence of the two experts was, if not straightforward, easy to understand. Complexity is not to be gauged purely by reference to the time which it took for the experts to be examined or cross-examined. It is analysed by reference to what the experts actually said. In this case, the summary which the trial judge repeated to the jury from the conclusion sections of the two reports amply outlined the experts’ positions.”

He continued: “Each expert accepted that, if there had been a body of evidence which demonstrated that the baby had been in some form of decline, that might make a difference. The trial judge gave the jury clear directions on this. As quoted above, he explained that sometimes the facts upon which an expert had expressed an opinion turned out not to be correct. In that event ‘the foundation on which the opinion was based has disappeared and the opinion becomes of no value’. The judge could hardly have been clearer. Having said that, the trial judge directed the jury that, for a conviction, the jury were ‘dependent upon the evidence of the relevant medical experts’. The judge provided a clear route to verdict. For a conviction, the jury had to accept the evidence of the experts and that depended upon the jury finding that, as the appellant’s parents, and the appellant herself at police interview, had said, the baby was ‘fine’ before she came into her care.”

In relation to the third appeal ground, he said: “There was no requirement for the judge to give the jury a specific direction on the need to eliminate the possibility that someone else had shaken the baby some time before she had been handed over at 3.30pm, more than 5 hours before her collapse. Quite apart from the absence of any evidence that either the parents or the baby’s eight year old sister had done anything to cause the child substantial injury, the essence of the case as advanced by the experts was that the injuries had been caused at the same time as the collapse. If the jury did not accept that hypothesis, which was explained in detail to them, they would have been bound to acquit. That was the only basis upon which the Crown case proceeded. In these circumstances, there was no misdirection of the jury and the first three grounds of appeal fall to be rejected.”

Addressing the content of the expert reports given to the jury, he said: “Since the experts were not present in court when the witnesses of fact were giving their evidence, the only way in which their conclusions could be tested was for the jury to understand what the bases for their conclusions were in order to follow the experts’ reasoning .That could only be done by the experts stating what they understood the state of the baby to have been in the hours and days before the hospital admission. It might have been better if that had been done as a straight narrative of events, rather than by attributing particular facts to identified witnesses. That too might have had difficulties in a situation in which the occurrence of these events was challenged. The evidence of the content of the witness statements as reviewed by the experts was admissible in order to understand the basis for their conclusions. It was evidence of the information upon which these conclusions were based, rather than of the truth of the statements’ content.”

He continued: “The discrepancies, such as they were, between what the experts understood the position to be at the stage of preparing their reports and the evidence in court was fully explored by the appellant’s counsel in the course of her speech to the jury. The trial judge gave the jury appropriate directions on hearsay statements and how they could be used. This ground of appeal accordingly fails.”

For these reasons, the appeal was refused.