Taborda & Anor v Rex

Factual and Procedural Background

In 2019 the Applicant commenced a relationship with the Appellant and moved into the same household in about May 2020. The Applicant was pregnant with twins; social services became involved during the pregnancy and, prior to birth, a child protection plan was made. The twins were born on 1 June 2020 and subject to frequent professional visits. On 24 June 2020 the Applicant was arrested for child neglect after being found intoxicated; a safety plan was implemented and later modified to permit limited periods where the Applicant could be left alone with the twins.

On 18–19 August 2020 the Appellant left the address leaving the Applicant alone with the twins. The following morning the Applicant called for emergency assistance in relation to one of the twins (the Child). The Child was found unresponsive and subsequently pronounced dead. A post-mortem identified a severe head injury and multiple fractures; a further fracture to the left wrist was dated as having occurred 3–6 days before death. While at the scene the Applicant assaulted a paramedic and provided biological samples; the urine sample was later found to have been contaminated.

At trial the prosecution alleged the Applicant inflicted the fatal injuries and earlier injuries; it alleged the Appellant had allowed the death and wilfully neglected the Child by failing to protect the Child after the earlier injury. The Applicant and the Appellant were convicted on multiple counts in the Crown Court on 26 July 2023 and sentenced on 20 October 2023. The Appellant seeks to appeal convictions (counts 3 and 5), to amend grounds and to admit fresh expert evidence; the Applicant seeks an extension and leave to appeal against conviction on count 4 and to admit fresh evidence. The Full Court heard the renewed and adjourned matters and delivered judgment.

Legal Issues Presented

1. Whether the judge erred in refusing the Appellant's submission of no case to answer on count 3 (allowing the death of a child) and count 5 (cruelty to a person under 16), given the evidence available at the close of the prosecution's case.
2. Whether fresh expert evidence (reports and oral evidence from a competing osteoarticular pathologist) and adverse judicial comment about trial experts rendered the convictions unsafe and should be admitted.
3. Whether the Applicant's application for an extension of time and leave to appeal against conviction on count 4 should be granted in light of the fresh expert evidence.
4. Whether the sentences imposed were excessive or should be varied (including correction of calculation of the Applicant's minimum term).

Arguments of the Parties

Appellant's Arguments

• The Appellant submitted there was no or insufficient evidence that the earlier left-wrist injury had been caused by the Applicant or that the Appellant knew or ought to have known of that injury, so there was no or insufficient evidence for counts 3 and 5.
• It was argued the judge widened the evidential timeframe improperly and relied on evidence outside the indictment period when assessing wilfulness for count 5.
• The Appellant sought to admit fresh expert evidence (Professor Freemont's reports) contending that the earlier injury dated outside the 3–6 day timeframe or was not a classic metaphyseal lesion, which would render the convictions unsafe.
• On sentence, the Appellant argued culpability was in a lower category (C) and the starting point for count 3 should have been 5 years, not higher.

Applicant's Arguments

• The Applicant sought an extension of time and leave to appeal against conviction on count 4 and to admit expert evidence asserting that the earlier injury dating might affect safety of conviction on count 4.
• On sentence the Applicant accepted a serious uplift was required but argued mitigating factors (mental health history, lack of premeditation, no previous convictions) warranted a lower adjustment from the starting point.

Respondent's Arguments

• The prosecution maintained there was sufficient circumstantial and expert evidence to satisfy the jury that the Applicant inflicted the earlier injury and that the Appellant knew or ought to have known of that injury and failed to take reasonable steps to protect the Child.
• The prosecution opposed admission of the fresh evidence as not undermining the safety of convictions and contended existing expert evidence remained reliable despite adverse comments in other cases.
• On sentence the prosecution supported the original sentencing approach and calculations subject to any clerical correction.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the legal standards under section 5 of the Domestic Violence, Crime and Victims Act 2004 and applied recent authority (R v Jamal and R v Sheikh & others) on the need to identify a significant risk coterminous with an unlawful act and the proper meaning of "circumstances of the kind" in subsection (1)(d)(iii). It reviewed the prosecution evidence at the close of the prosecution case and concluded that there was sufficient circumstantial and expert evidence to permit the jury properly to infer that the earlier left-wrist injury was non-accidental, dated some 3–6 days before death, and consistent with a classic metaphyseal lesion.

The court conducted a detailed evaluation of competing expert evidence called after trial. It heard evidence from four expert pathologists (the trial expert and three subsequent experts) and noted the respective positions: the trial expert and two subsequent experts maintained the diagnosis and dating of a classic metaphyseal lesion in the timeframe relied upon; the proffered fresh expert evidence contested the diagnostic label and dating but ultimately accepted a traumatic earlier injury of an age that did not assist the Appellant's appeal. The court also considered previous judicial criticisms of some experts in other cases but analysed context and the particular evidence before it.

On admissibility and weight of the fresh evidence, the court found the proffered expert lacked sufficient impartiality and credible basis to undermine the trial evidence. It concluded the fresh evidence did not render the convictions unsafe and refused admission. Applying the statutory and case-law tests, the court held the judge had been correct to refuse the Appellant's submission of no case on counts 3 and 5: there was sufficient evidence that the Appellant knew or ought to have known of the earlier injury, failed to take reasonable steps to protect the Child, and that the fatal act occurred in circumstances of the kind he foresaw or ought to have foreseen.

On sentence, the court reviewed the trial judge's approach. It refused the Applicant's renewed challenge to sentence but ordered a clerical correction to the minimum term calculation (credit for remand), applying R v Sesay. For the Appellant, the court re-evaluated culpability under the relevant guideline, concluded culpability fell within a lower category than the judge had assessed, and substituted a reduced custodial term for count 3, with total sentence adjusted accordingly.

Holding and Implications

Core Rulings:

• Appeals against conviction: The Appellant's appeal against convictions on counts 3 and 5 is dismissed; the application to admit the proffered fresh expert evidence is refused; the Applicant's application for an extension of time and leave to appeal against conviction on count 4 is refused.
• Sentence: The Applicant's renewed application against sentence is refused, but the court ordered a correction to the Applicant's minimum term calculation (revised to 15 years and 91 days after credit). The Appellant's sentence for count 3 was reduced: the earlier 10-year sentence for count 3 was quashed and substituted with 7 years' imprisonment; total sentence for the Appellant is 7 years.

Implications: The direct effect is to uphold the convictions and most sentences while correcting a clerical calculation and reducing the Appellant's term. The court considered but declined to admit fresh expert evidence and found no basis to disturb the jury's verdicts. The judgment does not establish a new legal precedent beyond applying and interpreting existing authorities cited in the reasons.