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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Waters v R [2006] EWCA Crim 139 (14 February 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/139.html Cite as: [2006] EWCA Crim 139

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
A REFERENCE BY THE
CRIMINAL CASES REVIEW COMMMISSION.

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 February 2006

LORD JUSTICE HOOPER :

1. On 8 July 1994 at the Crown Court at Hove before Hidden J and a jury the appellant was convicted of murder. He was released from custody on 4 April 2004. He sought leave to appeal his conviction. Leave was refused as also was his renewed application. He now appeals against conviction upon a reference from the Criminal Cases Review Commission ("CCRC") under section 9 of the Criminal Appeal Act 1995.
2. At some time in the evening of Sunday 18 April 1993, 17 month old Aaron Dellow suffered very severe injuries from which he died later that evening or early the next morning. Dr West, who conducted the post-mortem, gave evidence that Aaron had died after suffering a minimum of seven substantial impacts to the head. The pattern of injury suggested that the child had been picked up and his head gripped hard as he was struck against a hard surface. There was also evidence to indicate that the child had been picked up by the right leg and swung to cause injuries. There were also injuries consistent with an adult hand or hands being pressed violently against the child's face perhaps, in the view of Dr West, to stifle his cries. Some of the injuries showed a pattern imprint which may have been from a carpet. Fourty-one separate injuries were identified including two fractures to the skull and severe swelling of the brain. There was no evidence of any previous episodes of physical injury. According to Dr West it would have taken some three and a half minutes to inflict all the injuries.
3. Aaron suffered those injuries in a small, one bedroom flat. It was accepted at the trial, and it continues to be accepted by the appellant, that there were only two possible candidates for the killer, in the sense that no other person had an opportunity to inflict the injuries. They were Lee Baker who was the mother of Aaron, 24 years old at the time and some 8 months pregnant (by the time of the trial) and the appellant Colin John Waters who was living with her. Both were candidates in the limited sense that their life styles and their reliance on alcohol and/or drugs could have made them unsuitable carers.
4. Upon the case as presented at trial and now on appeal the injuries were caused by one of them acting alone. Furthermore each could only have inflicted the injuries within a certain period of time on the Sunday evening. The "window of opportunity" for Lee Baker was between 6.30pm and 6.55pm. During that time there were other people in the flat including the appellant. The appellant's "window of opportunity" was between about 7.45pm and 9pm when the appellant was alone in the flat and another short window of opportunity when he was alone from about 9.30pm to about 9.45 pm.
5. Lee Baker left the flat at about 7pm and should have returned by about 7.15pm. In fact she became involved in an altercation, was arrested and, no doubt to the appellant's annoyance, did not return until about 9.45pm. Thereafter at about 10.15 they went to bed. At no point during the trial was it suggested that Lee Baker could have caused the injuries whilst the appellant was asleep after about that time. The appellant, on his account, discovered the body of Aaron at about 3.00 am in the cot next to their bed,
6. As between Lee Baker and the appellant, the jury could have sensibly concluded that the appellant was the more likely candidate. If Lee Baker caused the injuries then she did so at a time when there were three other adults in the small flat, none of whom gave evidence of hearing any cries. Aaron had been in the flat for about 30 minutes before Lee Baker, on her account, took him through to their bedroom in which his cot was situated. Before then he had been playing happily on the floor with the other children, Laura and Molly, who were temporarily in the house. It seems unlikely, so the jury may well have concluded, that the child was crying so loudly and so continuously that Lee Baker was driven to stopping it by violence and yet no one heard anything. Moreover, Lee Baker would have had to carry out the violence uninhibited by the obvious risk that others would hear something. Having put the baby to bed, on her account, Lee Baker came back into the room in which the adults, Laura and Molly were. There was no evidence that Lee Baker appeared flustered or upset. She then took £20 from the appellant in order to go to an off licence.
7. On the other hand if the appellant was the killer, he was alone at the time. There was also evidence from a neighbour that when she called at the flat to deliver some cigarettes she was not invited in, something that she found strange and unusual.
8. It is submitted on behalf of the appellant that the learned judge misdirected the jury in an important respect about what we shall call the "6.30 feed". Mr Thornton QC also sought to call fresh evidence rebutting the evidence of Dr West about the time of the injuries in relation to the food which Aaron had consumed.
9. We turn to the factual evidence in more detail in so far as relevant to the issues on this appeal.
10. Aaron was with his father for the weekend who returned him shortly before 6.00 pm on the Sunday to his mother's care. The somewhat conflicting factual evidence about what Aaron ate before being returned is neatly summarised in a report by Dr Murphy prepared for the appeal:

"1.5 Brian Dellow's Statement reported that at lunchtime (14.00-15.00 approximately) Aaron had been offered a cooked lunch (chicken, cabbage, peas, roast carrots and gravy). He stated that he did not think Aaron ate any of this. In the afternoon he gave him a chocolate mini roll and some yogurt. At 17.00 he gave him a portion of a chocolate biscuit (Penguin) and a portion of a fudge bar.

1.6 Later in his evidence he stated that Aaron had 'picked at' his lunch. He recalled that Aaron had eaten some crisps and chocolate bars during the afternoon. He stated that he had also eaten some other biscuits (animal shape biscuits). He thought the fudge bar had been eaten at 16.00 or 16.30 or 'it might have been a bit later'. Subsequently he stated that some of these items might have been eaten as late as 17.30 before going to meet Aaron's mother. When asked if the fudge bar was the last item eaten he said he might have had a couple of 'little animal biscuits' also. He also stated that when he returned Aaron to his mother he had placed a bottle of milk in a bag attached to the child's buggy. Aaron had already taken some of that milk before they left his flat.

1.7 John Warner (Brian Dellow's friend and flat mate) stated that Aaron had not eaten any of the cooked lunch. At about 15.30 he had eaten part of a Penguin bar and part of a fudge bar. He was drinking milk and water throughout the afternoon. He did not recall other foods being eaten."

11. It seems likely that the jury would have concluded that Aaron, before his return, ate his last solid food at about 5.30 pm and drank some milk from the bottle. Mr Andrew Mitchell QC (who appeared for the appellant at the trial but not in the appeal) elicited the 5.30 timing in cross-examination by pointing out what the witness had said in his statement.
12. Dellow agreed that in his statement he had described washing the bottle and packing it empty, but he thought that was wrong and that he had confused the beaker and the bottle. He had also said in evidence at the committal proceedings that he had confused the two (so that he actually thought it was the beaker he had washed out and packed empty). He had agreed that he might have discussed that issue with Lee. Giving evidence at trial, he was sure that Aaron's bottle had milk in it when they left the flat and that he was drinking from it on the way to meet Lee, but he could not say how much was in it. He did not think he had drunk it all when he handed him over.
13. Lee Baker, who had been drinking much of the day with the appellant and others, gave evidence about what happened when they returned to the flat at about 6.00 pm. They sat in the front room for a time. She put Aaron to bed at 6.30, which was the time he always went to bed. She knew the time from the video recorder. She changed his nappy and left him in a t-shirt. There were no marks on him. She put him down. Then she went to get his bottle from his bag of things. It was three-quarters full of milk and she left it with him. She could not say whether he had drunk from the bottle. The door to the hall from the bedroom was "closed to", but the door from the front room to the hall was pegged open. She went back into the front room at about 6.40 and everyone was still there. Shortly before 7.00 pm she left with Pamela Waters, at the appellant's suggestion, to get some drink. The appellant gave her the money.
14. In cross-examination she said that when they went back to the flat the television could have been on. She had not gone to the bedroom right away and when she did put Aaron to bed, she was with him in the bedroom for no more than five minutes. She was in the room when the appellant asked Pamela Walters to call Stan and she was in the room when the call was made. (There were three calls made 6.42-6.50, 7.04-7.17 and 7.29-7.43.) She thought it was during the second call that she put Aaron to bed. She had earlier said in examination-in-chief that she was there during the telephone calls with Stan Davies. She was positive that it was about 6.30. She repeated what she had said about getting the milk bottle and said it contained at least seven ounces (nine ounces being the maximum it would take). She was certain the bottle was almost full when she collected Aaron from Brian. If it had not been full she would have given him a clean bottle.
15. During the hearing of the appeal it was assumed that Lee Baker took Aaron through to the bedroom at about 6.30. If there was a feed at that time, a matter to which we return later, then that would be the so-called 6.30 pm feed.
16. Paul Keen, who was involved in making the calls thought that he had left the flat at about 7.45 pm, leaving the appellant, Molly (asleep) and Aaron (in bed) there.
17. Maria Manton lived in an upstairs flat at 16 Montpelier terrace. She was friendly with Lee Baker. On Sunday 18th April she had been out and on her way home with her boyfriend at about 7.30 thought she would call in to see Lee for a cup of tea. Lee was not there but the appellant, Paul Keen and Molly were. She did not knock and walked straight down the hall to the front room. Paul was having an argument on the telephone. Aaron was not in sight and she assumed he was in bed. She stayed five or ten minutes and her boyfriend Wayne and the appellant smoked a joint. The appellant asked her to get him some cigarettes and told her that Lee and Pam had gone for a drink. She went back up to her flat and collected some money before going to the shop. That was 7.40 to 7.50. As she walked out of the building she saw Paul on his way back. He asked her if she had seen Pamela and she said not. She bought things at the off-licence and came straight back. She thought it was about 8 or just after 8 that she returned. The appellant came out when she knocked, took the cigarettes and said 'cheers'. Normally she said she would knock and walk straight in and she found it a bit strange that she was not invited in.
18. By some time around about 9.00 pm Paul Keen and Pamela Walters were back in the flat, to leave again at about 9.30, with Molly. When Lee Baker arrived back at the flat at about 9.45 pm the appellant was alone in the front room. She asked him if Aaron had woken up and he told her that he had but that he had given him his bottle and Aaron had gone back to sleep. He told her that the neighbours from upstairs had been down. At about 10 o'clock he said he was going to bed. She tidied up and followed him to bed about ten minutes later. The light was out and she said she would not have turned it on or looked in the cot as she would have worried about waking Aaron. When she got into bed the appellant said he could not sleep because he had a stomach upset. She went to sleep within minutes. The next thing she remembered was waking in the night, about 3 a.m. The appellant was calling her and said "Something is wrong with Aaron, he's not breathing." He was standing in the doorway and the only light was from the hall. She got out of bed and the appellant put the light on and came over to the cot. She had a quick look and saw foam by his left cheekbone, so ran to the front room to call an ambulance.
19. By now Aaron was dead.
20. The night sister at the hospital noted bruises on the child's face and that his clothes were wet with vomit.
21. Dr Langton-Hewer was the registrar on call at the hospital who examined Aaron and noticed extensive fresh bruising. The bruises were very clearly visible. He spoke to Lee, and noted down that she told him that Aaron had been well when they had put him to bed at about 6.30. He asked if she had checked him when she went to bed and she said that she probably had, at about 10.30, but she could not be sure. Her boyfriend had got up at 3 to go to the toilet and had found Aaron not breathing. He said to Lee that he had seen bruising to Aaron's face and she said something to the effect of, 'Do you think I've done that to him?' and took a rather aggressive stance. He explained that he was trying not to jump to any conclusions. The appellant had not commented at that time. Lee had no explanation for the bruises. She rang other family members who came to the hospital, although she had seemed reluctant to do so when first offered the telephone. Apart from that and her reaction to his remarks about the bruises, she showed signs of normal grief. The appellant did not seem unduly upset, but was generally supportive to Miss Baker. Throughout his conversations with those present he said there was no evidence of anyone being under the influence of alcohol. The grandmothers were clearly horrified when they saw the bruising. Cross-examined, he said that his primary source of information had come from Lee Baker. She was with the appellant the whole time. He had made notes, but not as he sat and talked. He was asked about his note to the effect that 'M checked him briefly at 22.30 – was okay' and said that Lee was clearly very upset when he interviewed her. He wanted to get the picture in his own mind and in particular to ascertain whether Aaron might have been unwell when he was put to bed. His mother thought she had looked at him but she could not be sure and he could not definitely remember her saying that she had definitely checked him at 10.30. He was asked about his deposition before the Magistrates and agreed that she had initially said she had checked Aaron but subsequently she said that she was not so sure.
22. Before looking at the evidence of Dr West, we turn to the appellant's evidence. He was then aged 45. He said that on the weekend of 17^th and 18^th April he was serving a prison sentence of 27 months and had not returned from a period of home leave. He said he did not drink and rarely went out. He had smoked cannabis for 25 years on and off. It had a calming effect on him. He described how they had gone to the pub on Sunday and he had drunk a couple of pints. He thought he was not wearing a watch and did not know what time they left. They moved on to the restaurant where he paid with a stolen cheque. They had drunk wine and lager in the restaurant. Once back at the flat the television was on and the children were playing. He rolled a joint and listened to the answer phone. He remembered a message from Stanley Davis, who had called a few times. Paul Keen got very angry and suggested that he speak to him. Paul made the call at 6.42 but he recalled Pamela Walters saying something to Stan in that call as well. He was concentrating on that and not on Aaron and did not remember when Aaron was put to bed. Lee came back in the room and it was her idea to go to the off-licence, for which he gave her £20. Pamela and Lee went out right away after Lee came into the front room and there was then another call to Stan in which Paul was very threatening. He had not remembered that call when he was questioned by the police.
23. He recalled Maria coming to the flat with her boyfriend Wayne and daughter Natalie. He was buying cannabis from her regularly. He thought she stayed about half an hour during which time Wayne asked if he had any cannabis and he handed cannabis to Wayne to roll a joint. At the same time he asked if they had any more for him and Maria said they had some upstairs. When they left he was with Paul and Molly in the lounge. He would not have left Molly alone. He did go upstairs to Maria's. Asked about Maria's evidence that she saw Paul as she left the flat, he said that was not possible. However, he had no idea how long it was after Paul had gone that Maria knocked on his door. He had no recollection of Paul returning to the flat after he had gone out. There was about twenty minutes between him going upstairs to Maria and her returning with the cannabis. She knocked on the door and he opened it. Usually he would have shouted 'come in' but Molly had just had a sleep and he did not want any company. The telephone went and it was Lee's brother. There was a further call from Stan which he did not answer.
24. When Pamela rang it was the first he knew of what had happened to her and Lee. It was about ten minutes after that call that she returned. He told her to get a taxi and that he would pay. Molly was asleep on the settee and he had heard nothing from Aaron. Paul then arrived, within minutes. He made several calls to the police station to find out what happened to Lee and was eventually told that she would be released in about twenty minutes. Nothing caused him to think that the police might come to the flat. Lee came home as expected and was in a bad mood. He did not say anything to her about Aaron. They had a beer from the fridge and he asked her what had happened. Her version was different from Pamela's and he did not know who to believe. He went to bed fifteen or twenty minutes later. It was not his habit to check the baby. Lee always used to check that he had orange or water before she went to bed. He remembered her coming to bed.
25. He woke at about 3.00 am and went to the toilet and to the kitchen for a drink. He sat down for a smoke and was thinking. It was about half an hour before he went back to bed. He had put the hall light on but turned it off as he went into the bedroom. As he came in he saw Aaron's covers were off and as he bent down to cover him up, he felt he was cold and smelt of vomit. He put the light on in the bedroom and told Lee there was something wrong with Aaron and to ring an ambulance. She ran to the phone. She was not able to touch Aaron or be anywhere near him. He did not cause the injuries to Aaron.
26. In cross-examination he said that there was no problem with the children before Aaron was taken to bed. He said that Aaron could have been injured in the bedroom with Pamela, Paul and himself still in the flat and they would not have been aware. It could all have happened between 6.35 and 6.55. He was not aware of Lee giving Aaron a bottle of milk and was not aware of the bottle being with Aaron until he found it in the morning. He had no recall of Lee asking him if Aaron had woken up. He was positive that he had not said that he had given Aaron a bottle and he had gone back to sleep. When she first confronted him with that statement the morning after, he was in complete and utter shock and when questioned by police he said he could not remember, but later he became sure that he had not said it. He had decided to deny it after hearing Lee give evidence at the committal hearing. He denied that he had complained of a bad stomach when Lee got into bed. He was feeling relaxed. Cannabis did not affect his self control, nor did drink, although it did with some people. He had not noticed anything when he went to bed and had no idea if Aaron's quilt was over him.
27. Because of its potential importance we summarise the evidence given by the appellant about the feeding of that night.

In his first interview the appellant was asked whether he had given Aaron a feed. He said "No".

In his second interview he was asked about the evidence of Lee Baker who said that, when she got home at 9:45pm and asked whether Aaron was okay, Colin Waters had said that Aaron had woken up, was given a bottle and went straight back to sleep again. When asked whether it was possible that the conversation took place he said "Yeah, but I cannot remember it, I will tell you that now. I definitely didn't give him a bottle." Later he then says "Yeahs, I don't honestly remember it. I mean. If, if he woke up I'd have gone in, not give a bottle, it's just passing a bottle that is already there he used to throw it on the floor". He accepted that it was a possibility.

In his third interview he was asked generally about Aaron's crying. He replied that "I found the best way to quieten him down was either fill his bottle with milk. I'd give him like two-thirds of a bottle of milk…and then he would be all right again".

In his third interview he was asked again about what he said to Lee when she returned at 9:45pm about having given Aaron his bottle. He said he had spoken to his solicitor and "I'm not saying I didn't say. I'm not saying I did say" he later said "I can't say yes or no, on the bottle. I just cannot say."

In his evidence-in-chief he said "Aaron didn't wake up while his mother was out…I didn't say anything to her about Aaron. I didn't say anything to her about him having woken up or me having given him anything to drink".

In cross-examination he said "I have no recollection of Lee asking me if Aaron woke up. I deny it. I decided to deny it when I heard her giving evidence at committal and at the Magistrate's Court, that was September last year. I didn't say I just gave him his bottle and he went back to sleep. I am positive about that…." He agreed that he had moved from what he had said in interview.

28. When the bottle was recovered from the cot by police on the Monday evening, it appears to have had about a quarter to a half inch of milk in the bottom. If Lee Baker was telling the truth or accurately recording the amount of milk in the bottle when she says she gave it to Aaron some time shortly after 6.30, then (in the absence of any other explanation) logically Aaron must have drunk the rest of the milk some time between just after 6.30 and the time of the infliction of the injuries. The possibility of the bottle leaking was not apparently explored.
29. We turn to the evidence of Dr West about the time of the injuries to Aaron in relation to his feeding. His evidence was in part based on the statement of Mr Roy Green, a forensic scientist, which was read to the jury. Included within that statement was the following passage:

"The stomach contents consisted of approximately 40ml (1/1/2 ounces) of a thick pinkish fluid which contained a number of flat white lumps. Tests showed that these flat lumps were starch based. Their general appearance and the fact that they contained starch suggested that they were probably potato crisps."

30. Dr West described how he had found a mixture of fluid like thick soup with some rather more solid bits in the stomach. There was no solid material in the second part of the duodenum, only bile; food was just starting to leave the stomach. There could have been milk in the stomach, but it was impossible to identify any individual constituent of the liquid. He saw solid particles which could have been pieces of crisp and the appearance of the mixture he found was consistent with the child having eaten crisps and later drunk milk. The crisps would digest relatively slowly because they are fatty. He thought that the appearance of the contents of the stomach was consistent with Aaron having eaten crisps and biscuits. Some material could have been vomited out as a result of injury or attempts at resuscitation. It was likely that the injuries had either stopped or dramatically slowed digestion.
31. As to timing Dr West said that the state of digestion of the stomach contents suggests that the head injuries had probably occurred within two hours of the last feed, and was likely to have occurred between 45 minutes and one and a half hours after the ingestion of the food. He said that a feed of milk would count as a meal provided it was of reasonable substance.
32. We set out in full a part of the transcript of Dr West's evidence in chief which was the subject of detailed analysis during the hearing of the appeal.

MR CAMDEN PRATT: (To the witness) If Aaron - - and I say "if"; it is going to be a matter for the jury to decide in due course - - if Aaron had, in the course of the late afternoon, say, some fatty crisps and some chocolate biscuit, digestive chocolate biscuits or something of that sort, and if around about 6.30 he had had a feed of some ounces of milk, what sort of time span do you consider is likely to have elapsed before the injuries you saw were inflicted? Can you help us on that?

A. I would have thought that the period is unlikely to have been greater than two hours; and I would only - - by using a two hour period I am assuming that digestion has been slowed in a child and who was, until he suffered his head injury, quite healthy.

Q. A child who was until he suffered his head injury…?

A. Quite healthy.

Q. So we are talking about a two hour period from whenever he had his last feed of milk, when that might have been?

MR JUSTICE HIDDEN: "Unlikely to have been greater than two hours".

MR CAMDEN PRATT: Quite right. (To the witness) And so, just to make sure I have understood it: if his last feed of milk was at 6.30 it is unlikely to have - - the assault is unlikely to have occurred after 8.30?

A. Yes.

Q. If he last took milk at seven o'clock?

A. It is unlikely to be later than nine.

Q. "It is unlikely to be later than nine". Can you help us any more than that, as to the likely bracket, after the last feed, in which the injuries most probably occurred? Or can't you help on that?

A. One cannot be precise. I would suggest that the most likely period within the two hour period is 45 to 90 minutes, but it could be outside those limit, there is quite a lot of variation.

Q. Again so I can understand it: so whatever time we think he may have had his last feed, taken milk last, in your opinion the most likely time for the assault to have occurred is from 45 minutes to 90 minutes thereafter, but you enter the caution that there is a possibility that it is outside that period?

A. Indeed."

33. Mr Pratt then turned to another aspect of the same topic with this question:

Q. Can you help us on this: how likely is it that the assault that you have described must have happened/occurred within minutes of the last feed?

34. The transcript continues:

A. It depends on what one means by "the assault". The assault could certainly start at that period; the critical point is when one - - the critical feature is when the brain damage was suffered. So you can have an assault which takes several minutes. This would, in fact, take a time, perhaps a few minutes, to inflict.

Q. The nature of the injury would take a few minutes to inflict. Can I ask you - - -

MR JUSTICE HIDDEN: I am not sure that was an answer to your main question.

MR CAMDEN PRATT: (To the witness) I will ask you again. Let's assume that - - I just want to take some examples - - let's assume for a moment that there is a feed of several ounces of milk at 6.30, and it is followed immediately by an assault lasting a few minutes, how likely is it, then, that you would have the picture you found, as you have described on your diagram there.

MR JUSTICE HIDDEN: Is that what you want? The witness said: "When you say 'an assault', do you mean this assault in ------?

MR CAMDEN PRATT: yes. (To the witness) The assault you have described of seven impacts?

A. It is possible; I think it is not very likely, if the child had just been consuming a substantial quantity of milk, but it is possible.

Q. It is possible but it is not very likely?

A. I think again this is dependant upon the amount of fluid, the amount of milk that was taken.

Q. And is it easy to explain to us - - and I am going to ask you to try, even if it is not - - why it is not very likely?

A. Because I think that if something had occurred within effectively whilst the child was either consuming milk, or immediately afterwards, one would have seen some evidence of milk in the stomach contents, that is assuming - - - -

MR JUSTICE HIDDEN: (To the witness) Just pause please.

A. - - - - that the assault at the time rendered the infant immediately and deeply unconscious.

MR CAMDEN PRATT: (To the witness) So you say it is unlikely because you might have found milk in the stomach contents rather than what you did in fact find?

A. One might have seen traces of curdled milk, milk in which the gastric acids and one of the enzymes have acted.

Q. Is there any other reason?

A. No, that is the main reason."

35. Later Dr West was to say that fattier milk will take longer to pass through the stomach than very dilute milk.
36. In cross-examination he agreed that "normal individual stomachs may empty at rates that are as variable as less than 30 minutes to more than four hours". The matter was not further explored by Mr Mitchell.
37. Having said that there may be no disagreement between Dr West and the defence, Mr Mitchell put the first of two alternatives:

I ask you, therefore, to have in mind two sets of circumstances: the first set is that the child had nibbled through the day and had, before leaving to be taken home at quarter to six, certainly eaten a chocolate bar or chocolate biscuit, certainly eaten part of a fudge bar, and certainly eaten some crisps?

A. Yes

Q. And also, we understand, on the way back to being returned to his mother, drunk milk from his milk bottle?

….

Q. Thank you. This proposition: the state of the baby's digestion was not inconsistent with the crisps, the fudge, the biscuits, the milk up to about six o'clock and then being injured, such as to cause his death, between five to seven and ten to or five to seven. Would you agree with that?

A. Yes, I said early on I could not exclude that possibility.

Q. Not couldn't exclude", it is a sensible, fair and reasonable possibility?

A. It is a possibility.

Q. Sensible, far and reasonable?

A. If one assumes that the last meal was taken or the last food was taken prior to six o'clock thereabouts.

Q. Yes?

A. Yes.

38. Mr Mitchell turned to the second alternative

MR MITCHELL: That there is food taken at 6.30. (To the witness) And by "food" we would not - - it would only be fluid?

A. Milk, which becomes more solid in the stomach.

Q. Yes, I appreciate that , but even the taking of some fluid milk at half six, you cannot exclude the possibility of twenty to, ten to, five to, as being the time that injuries were caused?

A. Twenty to seven is certainly unlikely because it is going to take a finite time to drink milk through the bottle with a teat, but I am certainly not in a position to exclude that period.

MR JUSTICE HIDDEN: (To the witness) You cannot exclude which period?

A. That period which counsel is suggesting.

Q. Twenty to, ten to seven?

A. Yes.

MR MITCHELL: (To the witness) And therefore, on the basis - - basis that no milk was taken at half six - - and they obviously had to resolve the evidential problems - - - -

A. If no milk is taken at half six, that comes well within my range.

39. There is no complaint about the manner in which Dr West's evidence was summarised to the jury- except in one passage at the end of the summing-up, to which we turn later. Dealing with the evidence of the two alternative situations, first: last feed of solids at about 5.30 followed by milk in the pushchair between then and about 6.00 without milk at about 6.30 and secondly, with milk at that time, the judge said:

He was asked to look at a set of circumstances and give his evidence then. He was asked to look at a situation where the child had nibbled throughout the day and had had certainly eaten chocolate biscuits, chocolate bar, fudge bar and crisps, and also on the way back to the meeting point had drunk milk from a bottle. He said that he had heard the evidence, the state of the baby's digestion being not inconsistent with the Defence [case] of [the injuries occurring] about twenty to seven or ten to seven. He said that was a possibility; he could not exclude it. If one assumes the last food was taken prior to six o'clock, it is a sensible possibility. Solid food, starchy food he thought was not eaten after six o'clock. He said the crisps had liquefied into a paste in some ways, a thick paste, and there was no solid in the duodenum; it was in the stomach that solid particles were found – not in the duodenum. The stomach had broken some of the lumps down but biscuit and fudge crumbles, easily. Other things, that is crisps, crumble much slower and are very fatty and take much longer, and fats digest quite slowly. ...

He said he could not exclude the injuries occurring at twenty to seven or ten to seven, both on the basis that there was no milk [at about 6.30] and that there was milk taken [at about 6.30]. It came within his range of the time for the injury. The death could be as soon as a few minutes or as long as some hours. (Underlining added)

40. Three paragraphs from the original grounds of appeal succinctly state the respective cases of the appellant and the respondent.

It was the defence case that Lee Baker could have snapped and lost her temper when putting Aaron to bed and caused the injuries.

Lee Baker says that she took 5 or 10 minutes to put Aaron to bed and that there were no incidents of any sort, other than her going back into the living room to fetch the bottle for Aaron to drink. She said that the bottle was full of milk and that she gave him the bottle as she put him down for the night. The defence case was that this was impossible as the child would have drunk most of the milk on the way to the Post Office and while waiting for his mother.

The Crown's case was that Lee Baker had given him the bottle at about 6.45pm and that the child had drunk most of it before the attack by Waters between 8 and 9pm. The defence case was that Lee Baker had put the nearly empty bottle into the cot with Aaron after she had attacked him.

41. Mr Thornton submitted that the Crown's case was that there had been a feed of milk at 6.30. There is support for that in the note prepared by junior counsel for the Crown, Mr Lindsay Burn. But it seems clear to us that Mr Pratt abandoned that after Lee Baker did not say that Aaron had fed at 6.30 and given Lee Baker's evidence about what the appellant had told her. When Mr Pratt put the assumption of a 6.30 milk feed (see paragraph 32 above), he was doing no more (as he assured us) than catering for a situation in which the jury reached that conclusion. Mr Thornton submits that there was no evidence to support such an assumption. However, if the jury accepted the evidence of Lee Baker that she had given Aaron the bottle some three quarters full at just after 6.30, then the milk had been (so it appears) drunk by Aaron before he received his injuries. He could have drank it then, shortly afterwards or later with or without the assistance of the appellant.
42. Mr Thornton sought to call expert evidence to support the proposition that Lee Baker might have caused the injuries after her return at about 9.45. The substance of the evidence was that food may remain in the stomach for significantly longer than the two hours for which Dr West opted, albeit with the caution to which we have already referred. We refused permission to call that evidence. Whilst not doubting the credibility of the experts (indeed we have seen that Dr West accepted a period of up to four hours after a passage in the report of Dr Payne-James (instructed by the defence) had been put to him). However the appellant is now seeking to put a case which had never been advanced at trial and appears never to have been advanced in his consultations with his legal team. The new theory only appeared after the CCRC had issued a provisional decision refusing to refer the case and before the final decision to refer made in October 2003. As the CCRC stated in its provisional decision: "it has never been suggested [by the defence] that the injuries were inflicted upon Aaron" at a later time.
43. As the appellant accepted in interview he would have woken up "if Lee had hit him", referring to Aaron. There was no suggestion that either drink or drugs had rendered him incapable of waking up during what must have been prolonged crying followed by a brutal assault lasting some three minutes (as Dr West opined). The new theory is no more than very late post-trial speculation unsupported by any evidence. If there had been any realistic chance that Lee Baker had assaulted Aaron after her return, then that case would have been developed. For these reasons we refused to hear the evidence.
44. We admitted fresh evidence (but only provisionally) at Mr Thornton's request on the grounds that it might undermine the evidence of Dr West that the assault was not likely to have taken place immediately after the feed (paragraph 32 above). In fact the evidence called supported Dr West's evidence. Indeed a further reason was given in support of Dr West's evidence. If there had been a feed of say half a bottle just after 6.30 followed by an almost immediate assault there would likely to have been a significantly greater volume of fluid than that found (on the assumption that the digestive process stopped or slowed right down after the attack). Mr Thornton rightly abandoned the application to have this fresh evidence admitted.
45. Mr Thornton then applied to have admitted the evidence of Professor Milla who cast great doubt on the theory that Aaron had been assaulted by Lee Baker after Aaron had consumed say half a bottle of milk. We rejected this application. His evidence was to a similar effect as that given by Dr West on this point.
46. We turn finally to the ground of appeal which gave us more concern.
47. As we have already noted, there is no complaint about the manner in which Hidden J summarised for the jury the evidence of Dr West. However, at almost the end of the summing-up Hidden J said:

There are only two candidates are there not? Either his mother, Lee Baker, or his mother's boyfriend, the defendant. ... If there are only two candidates, there are only really two times that are possible, are there not, for the infliction of those injuries, either in the early evening between 6.30 and about five to seven when Aaron was being put to bed by his mother with three other adults and two other children in the flat, or a time, still in the evening, but sometime later, when the defendant was alone in the flat, Paul Keen having left to go out and Pamela and Laura not yet having come back.

You will remember the evidence of Dr Ian West in relation to time. … His evidence was that if [in] the late afternoon Aaron had a packet of crisps, some chocolate biscuits at around about 6.30 and he had a feed of some ounces of milk, the time span likely to have elapsed before the injuries the pathologist saw were inflicted he thought that period was unlikely to be greater than two hours from the last feeding. He said also that the most likely period within that 2 hours was 45 to 90 minutes, but it could be outside that; there could be quite a lot of variation.

In cross-examination, given the same circumstances to consider, the child nibbling throughout the day and having certainly eaten a chocolate bar, some biscuits, a fudge bar and crisps also on his way back to being handed over a drink of milk from the bottle. Dr West said that the state of the baby's digestion was not inconsistent with the blows causing the death occurring about twenty to seven or ten to seven. He said that is a possibility. He said that he could not exclude a time of twenty to seven or ten to seven. He thought twenty to seven was unlikely but he could not exclude those two times. There you have his evidence on the timings in his view which I will just summarise to you. It is unlikely to be greater than two hours, most likely within two hours or most likely the period within the two hours forty five minutes to ninety minutes. He could not exclude 6.40 or 6.50. So, you have to come to your decision on the fact in these matters.

48. We note that the third paragraph starts off with the words "given the same circumstances". As transcribed there is an enigmatic reference to "to being handed over a drink of milk". If the judge was dealing with the "same circumstances" then that would include a feed at 6.30. Is the reference to "being handed over" a reference to the "pushchair" or the "cot"? It is not clear. However, the judge had earlier reminded the jury that Dr West had:

said he could not exclude the injuries occurring at twenty to seven or ten to seven, both on the basis that there was no milk [at about 6.30] and that there was milk taken [at about 6.30].

49. The complaint made by Mr Thornton relates to the issue of the feed at 6.30. Mr Thornton submits that the way it was left in the second paragraph pointed towards the injuries having occurred at a time when the appellant was alone and was based on the false premise that there was a feed at 6.30. He submits that the judge should have told the jury that there was no evidence of milk being taken at 6.30 (as to which see above paragraph 41) or should have reminded the jury of all the evidence about the so called "6.30 feed". If he had done the latter he would have to have set out again the evidence of Aaron's father, of Lee Baker, of the appellant, of the state of the bottle and Dr West's doubts about whether what he saw was consistent with a feed of several ounces from about 6.30 until 6.40 (we were told that it would have taken Aaron about 10 minutes to consume half a bottle). Much of that would not have helped the appellant.
50. Whilst we agree that this part of the summing-up could have been worded better, we do not take the view that this renders the conviction unsafe. We also accept that the third paragraph could have been more clearly worded (assuming that the transcript is accurate). However Dr West had said in cross-examination that he could not exclude the injuries occurring at twenty to seven or ten to seven, whether the milk was taken at 6.30 or not. We note also that Mr Mitchell made no complaint about the way the matter had been summarised in this passage which would be surprising if he thought that what was being said undermined his approach to the case. The case he was advancing on behalf of the appellant was that there had been no feed at 6.30, the bottle being by then nearly empty. However, if the jury concluded that Aaron had fed at 6.30 when given the bottle, then that did not necessarily exculpate Lee Baker.
51. For these reasons the appeal is dismissed.
52. This case demonstrates again how useful it would have been for the experts to have met and to have prepared a list of matters about which there was agreement and about which there was disagreement. If that had been done the so called 6.30 feed might have played little or no part in the case. It may well be that the experts would have concentrated not on the last feed of milk (at either just before 6.00 or just after 6.30), but on how long it would normally have taken for the fatty food, in particular the crisps, once digested to move into the duodenum.