“[L]et us just look at the summary of where we are with the two major areas, ingestion of salt and head trauma. Salt first. There is no doubt Christian undoubtedly came into hospital with a grossly raised sodium concentration in his blood, you may think. All possible known causes have been excluded except acute ingestion of salt earlier that day. Therefore, all the doctors, except Dr Chambers [the relevant defence expert], say that that is what caused it. Dr Chambers says he can think of no other cause, but he is not persuaded of acute ingestion because of what is agreed to be an extraordinary feature, which is the plateauing of the excretion of sodium on the 9th, even though his kidneys were functioning properly. Professor Haycock [one of the prosecution experts] gives the possible explanation for that as being the heart damage. Dr Chambers says there is nothing in the literature to support that, even though it is possible. To be sure of ingestion of salt, what you must be sure of is that Dr Chambers is wrong. It is not a matter of counting head[s], as counsel has rightly said – all the other doctors are clear – but you must be sure that he is wrong before you can be sure that there has been a grossly excessive ingestion of salt. Of course, on this issue we then have the important factual issue, namely how did he get [it] into his system? The head trauma. This is very much not one man against the rest, you may think. There is a group of doctors, called by the prosecution, who say that the combination of the sub-scalp bruises as markers and the swelling which Dr Jaspan says he sees in the CT scan, and the pattern of the bruising, convinces them that this was trauma – shaking, violent handling, striking of the head or a combination. But there is another group – Dr Anslow, Dr Squires, Professor Forrest, and to a lesser extent some of the paediatricians who acknowledge this as a possibility – who attack this theory both in a negative and a positive way. They say that these are not impact injuries and that shaking of a three and half year old to death is not only unknown in the literature but physically inconceivable (to use Dr Anslow’s expression). That is the negative attack. Their positive attack is on the basis that there is reasonable cause for the bleeding in the brain present, namely hypernatraemia, which does appear in the literature even though the evidence may be weak. You heard a careful and full analysis of the medical evidence by Mr Smith on behalf of both defendants – he was actually speaking on behalf of Mr Gay. He did not put it quite as bluntly as this, but I think it necessary to do so so that you face up to the issue you are confronted with. You know that to convict of murder you must be sure that the head trauma was a substantial cause of the death, and hence before you convict of murder you must be sure, must you not, that that second group of doctors (Anslow, Squires, Forrest and the like) are wrong, because unless you can exclude that as a possible cause of the head injury, that is to say the hypernatraemia, and their opposition to the proposition that this could be shaking or impact, then unless you have excluded their views you cannot be sure that the other view is right, and unless you can be sure that the other view is right then you cannot answer that first question on the form in the way I indicated you had to before you could convict of murder.”
“There was no history of abuse of Christian in the weeks leading up to his death, but there was a history of poor coping by the defendants with the difficulties which he presented. During the application for adoption they had insisted upon perfection in the child. Not long after he had come to live with them, Mr Gay, with the knowledge of Mrs Gay, telephoned Social Services indicating that because he wasn’t doing as well as they had hoped they might not wish him to stay with them. A picture of events leading up to the final day, as set out in their interviews, shows a pattern of increasing pressure on both of them caused by Christian, from whom, on the face of their interviews, they appear to have had unreasonable expectations and to whom they attributed adult motivation. Secondly, on the Saturday and Sunday both defendants were together with each other and Christian almost the entire time. During this time they found his behaviour towards Mrs Gay particularly distressing and needing firm, even very firm, correction. Thirdly, each admits that they were angry with Christian during this time. Fourthly, during the vital period both for any forced ingestion of salt, which would be roughly between 10.00 in the morning to 2.00 in the afternoon, and the trauma to the head, probably no more than 15 minutes during the afternoon, they were together with each other and Christian, save for periods of a matter of seconds. Their care of Christian during this time was joint, in that they were acting together in dealing with him and the various problems that he was presenting. Fifthly, during the longer period, in the presence of both of them, he was playing with his food, culminating in throwing it to the floor, after which Mr Gay saw and told Mrs Gay of his smiling about having caused the mess and this appears to have distressed them. Sixthly, during the course of the police investigation they admit agreeing not to disclose what they plainly regarded as potentially damaging facts. In the case of Mr Gay the fact that Christian had bitten Mrs Gay, and in Mrs Gay’s case the fact that they had put him in his cot.”
“This has got nothing to do with salt; we are here dealing with something that the prosecution say is relevant to head trauma.”
“There is no doubt at all – nobody disputes – that Christian had an exceptionally high level of concentration of sodium in his blood when he was admitted to Russells Hall Hospital. The timing of the various tests and the fluid and so on were examined and, subject to what Dr Chambers said .., there is no doubt that he had a high level of sodium in his blood on admission. Two of the possible causes of such a high level of sodium have been ruled out: (1) severe dehydration, (2) known pre-existing metabolic disorders or other diseases. Very sophisticated testing was done … to rule out all known existing disorders which might have caused that high level of salt. Therefore, all of the doctors save for Dr Chambers conclude that having ruled out all other known causes the cause of his high level of salt must have been ingestion of a large quantity of salt during the day of his admission. All the doctors, Dr Chambers as well, agree that if he did ingest the salt it must have been acute – that is to say immediately before the events we are concerned with – and not chronic (that is to say bit by bit) over days. That acute ingestion must have been in the range of two to six hours before his collapse, which we know to be something like 3.15.”
“Q. … Now just as you at trial … postulated heart failure as an explanation, do you agree that what Dr Walters has done is a quite legitimate exercise in postulating an alternative hypothesis; is that right? A. Yes. Q. And you are not in a position, are you, to say that he is wrong? A. No, I am not.”
“(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice – … (c) receive any evidence which was not adduced in the proceedings from which the appeal lies. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to – (a) whether the evidence appears to the Court to be capable of belief: (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings for which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”
“We should not re-write, and we are not re-writing s.23. The fact that the expert chosen to give evidence by the defence did not give his evidence as well as it was hoped that he would, or that parts of his evidence were exposed as untenable (as, certainly on one view, occurred with Dr Rushton) thereby undermining confidence in his evidence as a whole, does not begin to justify the calling of further evidence, whether to provide ‘substantial enhancement’ of the unsatisfactory earlier evidence, or otherwise. Where expert evidence has been given and apparently rejected by the jury, it could only be in the rarest of circumstances that the court would permit a repetition, or near repetition of evidence of the same effect by some other expert to provide the basis for a successful appeal. If it were otherwise the trial process would represent no more, or not very much more than what we shall colloquially describe as a ‘dry run’ for one or more of the experts on the basis that, if the evidence failed to attract the jury at trial, an application could be made for the issue to be revisited in this court. That is not the purpose of the court's jurisdiction to receive evidence on appeal.”
“Perhaps, and one of the witnesses, Mr Punt, refers to cases he has seen during neurosurgery where the body, if you like, resets the level at which – the sodium is kept within a very narrow level by a complex physiological system. Now, other physiological systems work in the same way and can be reset so that for somebody, for most of us our normal sodium concentration is 140, but for that particular patient, the compensating mechanisms have changed and it is actually 170.”