Waters v R

An imperfectly expressed passage in a summing-up does not make a murder conviction unsafe where the jury has otherwise received the material medical evidence accurately and the alleged defect does not undermine the defence case. Fresh expert evidence may properly be refused where it advances a very late and unsupported factual theory that was not pursued at trial, particularly where the proposed evidence does not weaken the original expert evidence. Expert witnesses should meet before trial to identify their agreements and disagreements so that the real medical issues are clearly defined.

The appellant was convicted of murdering a 17-month-old child at the Crown Court at Hove on 8 July 1994. The case proceeded on the basis that either the appellant or the child’s mother, Lee Baker, had inflicted the fatal injuries while alone with the child.

Following refusals of leave to appeal, the Criminal Cases Review Commission referred the conviction to the Court of Appeal under section 9 of the Criminal Appeal Act 1995. The appellant challenged the judge’s directions concerning the possible timing of a milk feed at about 6.30 pm and sought to adduce fresh expert evidence about the timing of the injuries.

1. Appeal dismissed. The conviction was not unsafe. Although the final passage of the summing-up could have been expressed more clearly, it did not wrongly determine the timing issue or undermine the defence case.

2. The trial judge had earlier accurately reminded the jury of Dr West’s evidence. Dr West accepted in cross-examination that injuries at about 6.40 pm or 6.50 pm could not be excluded whether or not milk had been taken at about 6.30 pm. The jury therefore retained the factual question whether there had been such a feed and, if so, what significance it had.

3. The court refused to admit proposed fresh expert evidence supporting a theory that the mother inflicted the injuries after returning at about 9.45 pm. That theory had not been advanced at trial or in the appellant’s earlier consultations. It was late post-trial speculation unsupported by evidence. The appellant’s own account made the theory unrealistic, since he accepted that he would have woken had the mother assaulted the child.

4. Other provisional fresh evidence did not undermine Dr West’s evidence. It supported his view that an almost immediate assault after a substantial milk feed would probably have left a materially greater volume of fluid in the stomach. The appellant consequently abandoned that application. Similar further expert evidence was also rejected.

5. The court observed that the experts should have met and prepared a schedule identifying their agreements and disagreements. That process could have focused the trial on the significance of the digestion of fatty food rather than the supposed 6.30 pm feed.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, dismissed the appeal against conviction.

• Crown Court at Hove: Convicted the appellant of murder before Hidden J and a jury on 8 July 1994.