APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 86
Lord Brodie Lord Bracadale Lord Boyd of Duncansby	Appeal No: XC529/13   OPINION OF THE COURT   delivered by LORD BRODIE   in   NOTE OF APPEAL AGAINST CONVICTION   by   SCOTT BAMBRICK   Appellant;   against   HER MAJESTY’S ADVOCATE   Respondent:   _______

 

Appellant:  Jones;  Rhodes & Co, Dundee

Respondent:  Wade, QC, AD;  Crown Agent

 

26 June 2014

Introduction

[1]        On 6 August 2013 at the High Court at Edinburgh the appellant was convicted after trial of the following charges:

"(001)   on 19 or 20 May 2012 at [an address] you SCOTT BAMBRICK did assault AE, born 7 April 2009, then aged 3 years ….. and did repeatedly strike her on the body with your hand to her injury;

 

(002)    on 19 or 20 May 2012 at [an address]  you SCOTT BAMBRICK did assault JE, born 28 March 2010, then aged 2 years ….. and did repeatedly strike him on the body with your hand to his injury;

 

and

 

(003)    on 19 or 20 May 2012 at [an address] you SCOTT BAMBRICK did sexually assault AE, born 7 April 2009, then aged 3 years …. a child who had not attained the age of 13 years, in that you did attempt to penetrate her anus with a blunt object, the nature of which is meantime to the prosecutor unknown;  CONTRARY to section 20 of the Sexual Offences (Scotland) Act 2009".

 

 

[2]        On 29 August 2013 the appellant was sentenced to 6 years imprisonment.

[3]        The appellant now appeals his conviction on two grounds.  Ground of appeal 1 concerns an alleged misdirection by the trial judge as to the nature of the evidence in respect of the incriminee, SJC, and the trial judge's direction that the jury could consider this evidence in assessing the submissions made by counsel for the appellant in respect of the incriminee.  In ground of appeal 2 it is submitted that the trial judge's directions in respect of charge 3 lacked balance in that they set out the evidence relied on by the Crown but failed to mention or give sufficient emphasis to the medical evidence supporting an alternative inference.

 

Evidence and issues at trial

[4]        The complainers were AE, a girl born on 7 April 2009, and JE, a boy born on 28 March 2010.  The children's mother, SJC, met the appellant (who was not the children's father) in November 2011.  They started a relationship and began living together at the locus (SJC's house in Stirling) in May 2012.  On Saturday 19 May 2012 at about 4pm, SJC went out to celebrate a friend's birthday.  She left the children in the care of the appellant with instructions that he was to put them to bed at 7pm.  When she left the children with the appellant they were uninjured and no one was expected to visit the house.

[5]        SJC returned home about 1.30am or 2am and went to bed.  The appellant was sleeping on the couch and the children were asleep in their bedroom.  When SJC awoke later that morning she discovered that JE's nappy was held up by masking tape.  When she changed his nappy she saw that his bottom was black and blue.  She checked her daughter's nappy and found that her bottom was also black and blue.  SJC dressed the children, took them to a friend's house and telephoned the police.  When the police arrived, the appellant ran away.

[6]        The children were medically examined and were found to have sustained injuries.  In addition to the general bruising which had been noticed by SJC, AE was found to have peri-anal bruising consistent with blunt force trauma caused by a hard object.  The general bruising to the bottoms of both children was consistent with having been caused by an open hand.  Both doctors who examined the children were of the opinion that the injuries were non-accidental and, although they could have been caused during the period when the appellant had care of the children, they could equally have been caused at a time when they were being cared for by SJC.

[7]        The appellant was later that day apprehended by the police.  At a subsequent police interview he denied having caused the injuries although he admitted smacking AE on the bottom over her nappy and smacking JE on the hand.  The appellant did not give evidence at the trial;  however, he lodged a special defence of incrimination of the complainers' mother, SJC.  One witness was led on his behalf, a forensic scientist, who said that no blood or semen was found on the peri-anal and anal swabs taken from AE.

[8]        Counsel for the appellant conceded that the injuries in respect of charges 1 and 2 were non-accidental in nature.  The issue for the jury in respect of these charges was whether the appellant, as opposed to SJC, was responsible for causing them.  The issues for the jury in respect of charge 3 were two-fold;  firstly, whether the peri-anal injury to AE arose as a result of a sexually motivated assault upon her as opposed to having been caused accidentally by her falling on to a cylindrical object such as an upturned table leg or stool and, secondly, if the injury was non-accidental, whether the appellant as opposed to SJC was the person responsible.

           

Ground 1

[9]        Mr Jones, who appeared for the appellant, explained that the Crown case relied on the jury accepting the incriminee, SJC, as both credible and reliable.  Evidence had been led from a consultant paediatrician, Dr S, who had given his opinion that the injuries sustained by the children were likely to have occurred within 24 to 48 hours of their being examined.  The children had been in the sole care of the appellant for part of that period but SJC had also had the opportunity to inflict such injuries as may have been the results of an assault.  In the course of the cross examination of Dr S certain social work and medical records relating to the children were put to him for his consideration with a view to demonstrating:  that between April 2010 and August 2011 AE had visited the hospital Accident & Emergency department on six separate occasions having suffered various injuries which included a "bump" to the head, a burn to the right hand, an injury to her foot which had been explained by a weight having been dropped on her toe and a burn to the inner aspect of her right foot;  that both AE and JE had speech and language difficulties exacerbated by their non-attendance at appointments arranged at a time when SJC was suffering from depression;  that AE's teeth were decaying;  that the social work department and the nursery attended by the children had expressed concerns over the condition in which the children were living and that AE was suffering from severe nappy rash;  that concerns had been raised by the social work department and the nursery that AE was not receiving the medical treatment she required for injuries with which she had presented;  that in August 2011 the police visited the home in which the children and SJC resided and that concerns had been expressed about the condition of the home;  that on 25 January 2012 the nursery had reported that AE had attended with a dressing on her hand covering a burn she had apparently sustained after climbing on the kitchen worktop and touching the cooker;  that on 4 May 2012 the children had presented at nursery as "extraordinarily hungry";  that on 13 June 2012 the nursery had contacted SJC asking for a change of underwear for AE and had been told that no clean underwear was available;  and that in a letter from the nursery concerns were expressed about the environment in which the children were living. 

[10]      Once all the appropriate entries had been drawn to Dr S's attention the following questions were asked by counsel for the appellant and the following answers were given by Dr S:

"So if I tell you all of these, we've heard evidence about all of these in this case, that would be warning bells, wouldn’t it, that these children may be at risk at risk of non-accidental injury from whoever is in charge? – Yes.

And if we'd heard that when Mr Bambrick was off the scene, so that's before he arrived and after he had left, these concerns were being voiced one way or another, that gives you, certainly as a paediatrician, cause for concern? – Yes".

 

[11]      That being the state of the evidence, Mr Jones submitted that it was open to the jury to infer that the children had suffered injuries as a result of the actions of the incriminee, SJC.  He therefore criticised, as a misdirection, the following passage from the trial judge's charge:

"[Counsel for the appellant] attacked the character of [SJC] and I don’t think it is disputed, and I don’t understand the Crown to dispute it, that there is evidence in the case that in the past that she has been an inadequate mother and that the children could have been better looked after and there was social work involvement but, as far as I recollect the evidence, ladies and gentlemen, there is no suggestion that on any previous occasion she had assaulted the children and what we are dealing here with is a case of alleged assaults.  So bear that in mind when you are considering the attack which was made by [counsel for the appellant] on the character of [SJC]".

 

 

The trial judge's directions, submitted Mr Jones, had not presented this passage of the evidence in a balanced and fair way.  In a trial where the Crown case depended entirely upon the evidence of SJC being accepted as credible and reliable and where the appellant had incriminated SJC as being responsible for such injuries as had been deliberately inflicted upon the children, the trial judge was effectively inviting the jury to consider that the evidence put forward in support of the incrimination was of little importance because the appellant had been unable to identify a previous or subsequent assault on the children by the incriminee.  This was accordingly a material misdirection and should be regarded as having given rise to a miscarriage of justice.  Mr Jones commended what he said had been the approach of the court in Touati v HMA 2008 SCCR 211 at 229:  it could not be said that had it not been for the misdirection the appellant would in any event have been convicted.

[12]      In responding on ground 1, the advocate depute reminded the court that the trial judge's charge was not to be approached as if it were a conveyancing document.  One had to have regard to the whole of the charge in the context in which the judge was giving his directions.  There had clearly been an attack on the character of SJC but it had never been suggested to her during her cross examination that she had assaulted the children.  What the trial judge had said was correct.  Nevertheless, he had also made it very clear to the jury that they had to accept the evidence which she had given to the effect that she did not cause the injuries and had directed the jury in terms that if they did not accept her evidence to that effect then they could not convict the appellant.  As far as the test for a miscarriage of justice was concerned, the advocate depute submitted that that was to be found in Brodie v HMA 2013 SCCR 23. 

[13]      Agreeing with the advocate depute, we do not consider there to have been any misdirection by reason of the passage in the trial judge's charge relied on by Mr Jones in support of the first ground of appeal.  Prior to the passage which Mr Jones criticised, the trial judge had made it very clear that the jury had to accept the evidence of SJC, in particular her evidence that she did not cause the injuries, if they were to convict the appellant.  He reminded the jury that, on the evidence, SJC had had the opportunity to injure the children as well as the appellant: 

"The acceptance by you of the evidence of [SJC] to the effect that she did not cause the injuries is fundamental to the Crown case.  If you do not accept her evidence to that effect, then you could not convict the accused.  The Crown case is that there were two carers of these children at the material time;  [SJC] and the accused.  The Crown say that the evidence shows that [SJC] did not assault the children and that the other evidence shows that it must have been the accused….but ladies and gentlemen, note this:  the doctors do not say the injuries could have been inflicted only when he had care of them.  The period which they give ….would be within 24, possibly 48 hours….And during that period, both [SJC] and the accused had care of the children".

 

 

A little later the trial judge told the jury to have regard to all the points made by the appellant's counsel but in considering counsel's attack on SJC states that there was no suggestion that on any previous occasion SJC had assaulted the children.  That was a factually correct summary of the evidence.  The appellant's counsel had, entirely properly, laid before the jury such evidence as was available to her to indicate that SJC had been, as the trial judge put it, an inadequate mother but, equally properly, because she did not have the available evidence, counsel did not go the distance of asserting during her speech to the jury or suggesting by the way she formulated her questions, that SJC had, on any specific occasion, prior to or subsequent to the events libelled in the indictment, assaulted either of the children.

[14]      In our opinion, what was said by the trial judge in his directions was no more than an accurate summary of the evidence in the case.  There is no question of a misdirection in relation to this matter and the first ground of appeal accordingly fails.

 

Ground 2

[15]      Mr Jones explained that ground 2 related to charge 3, a charge of sexual assault.  In both cross examination and re-examination, Dr S had conceded that the peri-anal injury sustained by AE might have been caused accidentally, by the child falling on something such as the cylindrical leg of an upturned play table or a stool while wearing a nappy.  Despite this concession whereas the trial judge set out the medical evidence relied on by the Crown for proof of assault, he failed to remind the jury that there was also evidence to the effect that the injuries might have been caused accidentally.  There was accordingly a lack of balance in the judge's charge which had given rise to a miscarriage of justice. 

[16]      In response the advocate depute submitted that the passage complained of was entirely neutral.  The trial judge had told the jury that they must have regard to all the points made by the appellant's counsel.  That included raising the possibility of accidental injury.  There had been no misdirection.

[17]      Again we agree with the submission made by the advocate depute.  This is not a case where the trial judge gave prominence to the Crown case at the expense of the defence case. 

[18]      The passage complained of is short:

"Ladies and gentlemen, it was I think, accepted by the doctors, that there was no evidence of actual penetration but what they do is they point to the bruise, the peri-anal bruise which I think is shown in photograph 4, I think, in the book of photographs, and infer, and you are asked to infer, that there was an indication that something was pressed against the anus with a view to being inserted in the anus and before you could convict the accused you would have to conclude that that was what happened and that it was he who did it and that it was sexual in nature".

 

 

That is no more than a very brief outline of what the Crown has set out to prove in relation to charge 3.  While it is true that the trial judge does not remind the jury of Dr S's acceptance of the possibility of accidental injury on the hypothesis suggested by the appellant's counsel, neither does he elaborate upon the Crown case.  Moreover, not long after the passage which was criticised by Mr Jones, the trial judge said this:

"[Counsel for the appellant] made several points when she addressed you and you must have regard to all those points in the same way as you must have regard to the points made by the advocate depute".

 

 

It does not appear to us that there was any imbalance in the way that the trial judge dealt with the respective cases presented by the Crown and the defence.  The second ground of appeal fails.

 

Disposal

[19]      The appeal is refused.