Bourke v The Queen

[1988] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B60 of 1987

B e t w e e n -

TANIA MICHELLE BOURKE

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J
DAWSON J
TOOHEY J

Bourke

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 28 JUNE 1988, AT 3.31 PM

Copyright in the High Court of Australia

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MR R HANSON, QC: If the Court pleases, I appear with my

learned friend, MRS. ZILLMAN, for the applicant.

(instructed by the Public Defender)

MR P.G. NASE:  May it please the Court, I appear on behalf

of the Crown. (instructed by the Director of Prosecutions)

MASON CJ:	Yes, Mr Hanson.
MR HANSON:	Your Honours, may we hand up a synopsis of our

submissions.

MASON CJ:	Yes, thank you.
MR HANSON:	Your Honours, the applicant for special leave was

tried and convicted upon a charge of manslaughter. Her

appeal to the Court of Criminal Appeal was dismissed by a

majority and Mr Justice Dowsett dissented on the ground

that the trial had miscarried by reason of a number of

errors. The only special leave point we have is that there

has been a miscarriage of justice.	She has been deprived
of a fair trial.	To develop that point I must give-
Your Honours an overview of the case.	The victim of the
crime was a boy of three years and some months.	He was

the son of the man with whom the accused came to live

only some few months before the death of the boy.

The cause of death was a subdural haemorrhage thought

by the doctors to have arisen from an injury inflicted

during the three weeks preceding death, and it was thought

that the injury probably resulted not from a blow but rather

from a shaking or twisting motion causing sheering of the

blood vessels within the skull. The case against the

accused was circumstantial and to that end the Crown

mounted a case designed to demonstrate animosity on her

part towards the child, coupled with a body of evidence

designed to prove actual mistreating of the child.

Having regard to the em~tive nature of the topic,

a child abuse case, our first submission, and our primary

essential that care be taken that no evidence be placed	submission is that if she was to have a fair trial it was
before the jury that was not strictly admissible and properly relevant, and our submission is that unfortunately
this was not done. On the contrary, there was a good deal
of evidence which was highly prejudicial which had no probative value or which was of such minimal probative value that it ought not to have been put before the jury.
The result, in our submission, was an atmosphere created
which made it impossible for the jury to distinguish what
was really relevant to the issues and impossible for them to properly discharge their function.

The first error in this regard that we complain of

was perpetrated when the first witness came to the

witness box, Dr Atkinson, a neuro-surgeon who attended

the boy before his death. He had the boy in his care

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for a couple of days before the boy died. He described

the haemorrhage within the child's skull, but he was

permitted to say, and was encouraged to repeat to the

jury that the injury was one corrnnonly seen in abused

babies. Could we take Your Honours then to volume I,

page 96 - perhaps we should start at page 95, at line 20:

You spoke of subdural haematoma?---Yes.

Would you explain that to the jury -

and he does so. He speaks of this being seen:

tend to be seen in two ages of people, in young

children or people over 50.

At the top of page 96:

In the young child it is very corrnnonly

seen in abused babies, occasionally seen in

a patient - in children who have had a

complicated meningitis -

and so it goes on. Now, at line 40 on the same page -

perhaps it could be excused on the basis that what he

says at the top of page 96 was said in the course of a

long answer by the doctor - but at page 96, line 40,

he was then encouraged by a question from the Crown to

expand upon that corrnnent:

You were speaking earlier that this was found

in relation to young children in abused

children?

And he was asked to explain that, and he did so, and at

lines 50 through to the bottom of the page:

Chronic Rubdural effusion and haematoma .....

they tend to melt into each other, the chronic

subdural effusion and the chronic subdural

haematoma.	They are one of the more corrnnon
ones that we see in children. Very corrnnonly

they are associated with abused babies, so much

so that if one sees a child with a chronic

subdural effusion you would automatically be

obliged to notify the paediatricians and the

scan team -

I will tell Your Honours in a moment what the scan team was -

to look into that.

The scan team was said to mean a team of doctors and wo~ka~s ~~~~~~~.: ~!t11 the. hospital in Brisbane called the Suspected Child Abuse and Neglect Team, and it is a

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phrase that was put before the jury constantly during

the trial. Carrying on on the top of the next page,

page 97:

A woman that might have an obstructed labour

that required a forceps delivery and a lot of

stress on the skull and a lot of pulling of

the skull at the time of delivery. But they

are uncommon, and the majority come on in
children around the age of two or one, one year

of age, two years of age, even up to three

years of age. And these are often so commonly

associated with abused children that we

would automatically start doing skeletal surveys

automatically, bring in the scan team, because

it's seldom we find other convincing causes.

Your Honours, in our submission, that line of evidence was

completely and utterly inadmissible and highly prejudicial

to the accused.

DAWSON J:  Why? Not why was it prejudicial, why was it

inadmissible?

MR HANSON:	Your Honour, we could not complain if the doctor describes the injury he saw and the possible causes for
such an injury and he did just that. He says that it would
have to be a shaking or rotational motion to cause the
injury that he discovered.  Now, that is where his evidence
should have stopped, but he goes on and says that this is
invariably associated with an abused child. The idea is
planted in the minds of the jury that this is almost certainly one of those cases.
DAWSON J:	If he had said, "It is invariably associated with abuse", the evidence would have been admissible, would
not it, provided the doctor was established as an expert in abuse, but I do not understand you to take that point.
MR HANSON:	With respect, that evidence surely could not be

admissible, your Honour.

DAWSON J:	Why not?
MR HANSON:	The question in this case is whether this child

has been damaged by this woman in the way suggested

which could have caused - - -

DAWSON J:  But if the only possible explanation for the injury

is abuse, it does not establish that your client was

responsible, but it establishes one step on the way.

MR HANSON:  Your Honour, it is a most emotive word, a most

emotive phrase, "an abused baby", and it was entirely

unnecessary to put it that way to the jury. The case

would have adequately been argued for the Crown by

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the doctor simply saying that, "Such-and- such a conduct

must have caused this injury". Now, how does it help

the Crown to say that, "We always find babies with this

sort of injury have been abused"?	What does "abused"
mean?

DAWSON J:  There are degrees in that line of evidence. The

evidence could be just, "this is consistent with

maltreatment", or whatever you like to call it, and, "it can be not only consistent, but it is invariably

the case". Now, somewhere in between those two lies

a difference in degree but it would seem that the first

is certainly relevant, the last is certainly relevant,

so why should not the degree in between be relevant.

MR HANSON:  I am sorry, Your Honour, we just do not see the

relevance of that line of reasoning, that because
paediatricians or neuro-surgeons in their experience

find that 90 per cent of babies with subdural haemorrhages

have been abused, therefore this baby has been abused.

DAWSON J:  I do not want to carry this on, but I do not see

that. You would agree that the question, "Is this

consistent with the child being maltreated in some manner?",

would be a relevant question?

MR HANSON:	No, Your Honour.
DAWSON J:	All right.  Would you agree that the question,

"This is not consistent with the child having received

the injury from natural causes, or from, in some manner,

falling over or injuring himself"?

MR HANSON:  That is a relevant question because it goes to

speak of causes. Now, our submission is the doctor

ought to be confined to possible causes and not to use

this phrase of abuse, "child abuse'~ It is perfectly

permissible for him to speak of possible causes: falls,

injuries during play, discipline, anything he likes to

speak of, as long as he confines himself to possible

causes, but to use this umbrella phrase of 'child abuse'

really does not prove anything.

DAWSON J:  You do not question the doctor's qualifications

as an expert?

MR HANSON:  No, Your Honour, just the use of this phrase.

Now, in a slightly different category was a paediatrician,

Dr Brown, and at page 275, which is in volume II, he

spoke of the indicia, or the indicators of an abused

child. At page 275, at line 25:

Doctor, what are some of the indicators of an abused child? First of all, have you

·ex.pel:i1:::1.1.:.e wiLh c~iildren who have been abused?--

Yes, I was a paediatrician to the Suspected

Child Abuse and Neglect team at the Mater

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Children's Hospital for approximately nine

months, and I have had experience since then

with various children who have suffered

physical or emotional abuse.

What does that particular team do?

And he describes that. Well,we might ask there what was

the relevance of asking what the scan team did.	At
line 40:

What are some of the indicia or indicators in abused children that one looks for?

Now, again we say that that is clearly an improper

question, an inadmissible topic, it is too general,

"abused children." The line of arguing is abused children

demonstrate certain indicators and then, I suppose, the

next line is this baby demonstrates some of those

indicators; therefore, this was an abused child. Even following that line of reasoning, it is not a valid line

of reasoning.	She was not on trial for abusing the child.
She was on trial for manslaughter.	She was on trial for,

according to the medical opinions, shaking the child or

doing sc:m:th:ing violent to the child that sheered the veins in the brain by some conduct described by the doctors.

Now, it is just not relevant to say that this was an abused

child.

DEANE J:  One problem with this, though, when it is not

objected to, is that sometimes counsel can see a real

advantage in letting professional witnesses ride a hobby

horse, or show a prejudice, or use emotive language, in

that it can be often exploited to discredit the witness.

MR HANSON:	That is true, Your Honour.
DEANE J:	And it is a problem when there is no objection

to it.

MR HANSON:  There was a long argument about the admissibility

of evidence when this trial began and if Your Honours want

me to address you on what objections were taken I am

prepared to do that.

DEANE J:	Would it have covered this?
MR HANSON:	We did not know it was coming, you see. It was

not -

DEANE J:  I thought you were implying there had been some

general objection at the beginning that was then being

observed.

Mk HANSON:  There was. Yes; there was a long debate before the

trial began dealing with man~ many objections and many

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categories of evidence and this is not amongst them

because it was not amongst the proof that the accused

was expecting t0 meet. It arose then in Dr Atkinson's

evidence, and I must say it was cross-examined upon too,
on behalf of the accused, and perhaps with the motive

that Your Honour suggests: it is there and you have to

try and deal with it somehow.

TOOHEY J:  But, Mr Hanson, was not there a voir dire in relation

to Dr Brown's evidence?

MR HANSON:  There was, Your Honour, but a slightly different

aspect. I think the voir dire was confined to his

evidence about emotional abuse. He wanted to give evidence

that this child had been emotionally abused and there was

a voir dire about that.

TOOHEY J:	With what result?
MR HANSON:	The evidence was allowed and we have a complaint

about that.

TOOHEY J:	Thank you.
MR HANSON:	We have two complaints about this evidence,

"What are some of the indicia in abused children?"

Firstly, I have put the first proposition to Your Honours

that it is not a valid line of reasoning. The second

objection is that in any event the Crown did not make

the connection between indicia in children and this

child in particular, even if it were a valid line of

reasoning, assuming for a moment it is valid to say,

"These are all the indicia that you look for in abused

children, this child exhibits some of them, therefore

this child has been abused", assuming - - -

DAWSON J:  When you say that valid line of reasoning, you

mean it is irrelevant.

MR HANSON:  I am sorry, Your Honour?

DAWSON J:  When you say it is not a valid line of reasoning

you mean the evidence is irrelevant.

MR HANSON:  Irrelevant before a jury. It is logically relevant,

I suppose.

DAWSON J:  Relevant before anyone - it is not a special

relevance before a jury.

MR HANSON:  No. But the other complaint we have is they did

not make the connection. They did not do that exercise,

and I will seek to demonstrate that point as we go through

when this question is answered.

DAWSON J:  But that would not go to admissibility, would it?

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Bourke

I am sorry to press you about that, but counsel may

attempt to lay the ground for something but not make the

connection. That does not mean that the evidence is

irrelevant. It is just that it has not been shown to

have the necessary connection to make it relevant in
this particular case, relevant in the sense of

inadmissible.

MR HANSON:  That is true, Your Honour. A complaint we have is

that the witnesses who destroyed this line of reasoning

were the Crown's own witnesses and it should have been

apparent to the Crown that it was a hopeless line of

reasoning right from the outset and the topic should never

have been embarked upon. That is something I want to

develop when we look at how the doctors responded to this

question. The Crown's own witnesses did not make the

connection and surely that should have been known to

Crown before they embarked upon this course.

DAWSON J:  I am just trying to get what the objection is.

Are you saying this evidence was so highly prejudicial

that the trial judge should not have admitted it without

making sure in the first place that the relevant

connection was going to be made?

MR HANSON:	Yes, Your Honour, or something should have been done at the end of the trial when it was seen that
the connection had not been made.  There should have been
a fairly strong direction to the jury at least.
Your Honours, the question was asked there, on page 275,
at line 40:

What are some of the indicia ..... Some of the

indicia of physical abuse would be bruises

which one would consider inappropriate for

the age of the child -

there was no evidence to support that -

multiple bruises -

there was evidence the child had bruises, but the evidence

said that was nothing out of the ordinary -

bruises of various ages -

the child had bruises of various ages -

bruises on the child's body in places where one

would not expect bruises from normal activity -

there was no evidence to support that indicia -

Other signs of abuse are malnutrition -

there was not a scrap of evidence about that -

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and then there are symptoms indicators -

of emotional abuse such as very unusual or

inappropriate behaviour.

On that last aspect, Doctor, if you have a

hypothetical situation where a child for no

apparent reason on a number of occasions makes

a statement that "I am a naughty boy", would

you attach any significance to that?-- If a

child made that statement on a number of

different occasions?

Yes?-- And you are suggesting a child at the

age of three?

Yes, a young child of the age of three?--

I would consider that inappropriate behaviour for

a child of that age and that would suggest to me

that the child may be being mishandled in an

emotional sense, and that could be an indication

of child abuse, particularly emotional child
abuse.

Is it an indication merely of emotion abuse or

could it also be a combination of emotional

and physical abuse?-- A child who is being

emotionally abused is often being physically

abused at the same time - the two of ten go hand

in hand - so it could suggest a physical abuse,
but per se, it would make me suspect that the

child is not being handled in an appropriate

way from an emotional point of view.

We have a number of criticisms of that line of reasoning.

Firstly, again, it is not a valid line of reasoning.

Some children who respond in a particular way may have

also been physically abused, therefore this child - - -

DAWSON J:  This is where it is necessary for a bit of clear

thinking, I think. You are now saying you do not agree

with the doctor. Well, that is all right, you perhaps

do not, but once you have not objected to his expert

qualifications and his giving evidence as an expert that

is that. Now, you say the evidence is irrelevant, but

I take it you do not say that the relationship between

the mother and the child is - it is not the mother. It is the de facto mother and the child - I take it you do

not say that is irrelevant.

MR HANSON:	No, Your Honour.
DAWSON J:	And, of course, this goes to show the relationship

of these things, provided, of course, it is connected up

with the mother.

MR HANSON:  Yes.

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DAWSON J:  But that would be a matter of inference at

the end of all the evidence which the jury may or may

not be prepared to make. It does not mean that they

are not prepared to make it or should not make it.

It does not mean that the evidence is irrelevant.

MR HANSON:  Your Honour, the weight of the evidence, if it

was to have any proper weight, disappeared in

cross-examination at the foot of page 279, at line 60:

Accepting it is not, of course, accepting that

was four occasions to the one person, over four

months -

and we are talking then about when the boy made this

statement "I have been a naughty boy". At the foot of

page 279 that is what the question is about and that

is what the evidence was. The evidence was correctly put

to him that the boy had said it on four occasions to one

person during four months, then the question is -

would you draw much from that?-- I wouldn't

think so, no.

DAWSON J:  That was a very successful cross-examination and

the value of the professional opinion that the doctor

expressed was set at nought. But that happens frequently.

MR HANSON:  Well, it was all left there then, Your Honour, and

the jury are left with this picture that this child is

being abused. The damage is done. Really, in a case

like this, the Crown ought to have surely explored this

topic with its witnesses before they came to the witness

box if this was going to melt away, because exactly the

same thing happened when another paediatrician, Dr Harris,

came to the witness box. She was asked to give the

indicia of child abuse and she had to concede that she

found none herself. Having seen the boy and had him under

her care in the hospital a very short time before his

death, she found none.	So what is the purpose in asking
these witnesses to list the indicia of child abuse?

DAWSON J:  Again, I am trying to get to the basis of your

objection. You are saying that you object to the

evidence, not on the grounds of relevance, not on the

grounds that the witness was not an expert, not on the

grounds that the prejudice outweighed the probative value,

but because it was eventually destroyed in

cross-examination.

MR HANSON:  No, I am sorry, Your Honour. The prime objection

is it is an irrelevant.· There is certainly an objection

that its prejudicial value far outweighs any probative

value it has .. · That is. certainly an obiection because

the Crown seem· to have -··pr.:oceeded as if this were an

inquest into the death of the child. These matters

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should have all been settled with their expert witnesses

before they came to the witness box. Could I ask

Your Honour to look at Dr Harris in volume II, at

page 464. She is a paediatrician. She was attached

to the hospital where the boy came.	He was at the
hospital twice before he died.	He came in about eight

days before his death with an overdose of sleeping draught

or something or other. There was no suggestion that

was ever deliberate or anything sinister in that

but he came to the hospital for that reason. She saw

him there. She saw him at the hospital and she discharged

him from intensive care back to the ward and he eventually

went home, although he came back a few days later.

At the top of page 464 she was asked:

Through your experience and area of expertise

in child abuse you can make those observations.

What are the indicia of child abuse - what sort

of indicia would you look for in child abuse?

She then goes on to list indexes of child abuse and, without reading them to Your Honours, we simply make the

comment that no connection was made in this case. In

particular, the evidence went the other way from tier

in cross-examination at page 476, at the top through

to line 20. Your Honours, our submission is the Crown

should have apprised itself of these matters before

embarking upon this topic. It is very hard to overcome

this sort of thing once it has happened - nothing that

gave her any cause to believe that the child was being

physically ill-treated.

Another paediatrician said the same thing, a

Dr Cooke, at page 426. Dr Harris that Your Honours were

just looking at, that was within the seven days before

his death. Dr Cooke saw him earlier in the month.

He is a paediatrician - page 426 at lines 5 to 15. What

is being put to the doctor in cross-examination is a

statement that he has made, and the general practitioner

who referred the child to Dr Cooke, Dr Mohr, at page 297

and page 299 in the same volume - page 297, I am sorry,

Your Honours.

Those were the doctors who spoke upon this topic for

the Crown and, Your Honours, really it all melted away

and the accused was left with it and it is hard to say

to the jury there really is not any evidence that this

child was abused, or was an abused child. There was

specific evidence the child was being mistreated by the

girl. We do not complain about that evidence. There

was evidence that she was slapping the child and the child

was crying. We cannot make any complaint about that, but

it is this general line of reasoning presented by

the Crown which all fell apart,should never have been

embarked upon. So that.is our fi:.csL ,:;u.un.i:.>s.:.0,1

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MR HANSON (continuing):  The emotional abuse issue should

never have been embarked upon for this reason:

there was only one witness who provided any support

for that topic. It is a witness called Fragiacomo,

an acquaintance of the accused and the father

of the boy. She said that the child on four

occasions said spontaneously to her, "I am a

naughty boy." The evidence from Dr Brown was that

it had to be, of course, a spontaneous comment; it

was of no value if the comment was led from the boy.

He had said it, according to other witnesses, but

in response to prompting, or leading, from other

people - so, only on those four occasions. Now,

I have already shown you what Dr Brown had to

say about that:  that he would not draw anything

from that evidence, those four occasions.	So, the
topic just was not open to the Crown.

If it is permissible to look at what he himself

had to say on the voir dire in the absence of the
jury at page 246, which is in volume 1, he says

that it was of no value in providing evidence of

physical abuse.	I just have not got the line
marked, I am sorry, Your Honours.	I am sorry,

I have made a note of the page, but not the line.

Yes, it is at the foot ,of the page, at about

line 58:

it does not necessarily imply physical

abuse but it certainly makes me suspect

emotional abuse.

Well, it was a terribly tenuous basis on which to lead evidence before the jury that this

boy was being emotionally abused and therefore he was probably being physically abused. So, really

the whole topic did not get off the ground and

should never have been embarked upon.

DEANE J: What about the evidence of your client having said

that she hated him and that he should run away?

MR HANSON:	I cannot object to that, Your Honour.
DEANE J:	You would not object?
MR HANSON:	No.

DEANE J: Except that it does fall into the general cate3ory

of emotional rather than physical abuse, does

it not?

MR HANSON:  Yes. We cannot object to the Crown seeking to

show the relat5.c::- '.",h.~ .. f, be.,..":7r ~.,-, the.- woman and. the

child. We cannot object to them seeking to show

that she was antagonistic towards him; that she

physically over-disciplined him. We cannot make

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any objection to any of that line of evidence.	The
submission is that the line was overstepped.	The

Crown embarked upon an illegitimate inquest,really,

into how she handled the child, in an attempt to

establish a relationship and antagonism.

Your Honours, about those doctors, before I

leave them, could we simply make this comment that

coming as it does from specialist medical practitioners,

the prejudice was particular and presented the jury

with a climate that the accused would have found

impossible to overcome. The jury would surely give

particular weight to these comments by specialist

medical practitioners.

Your Honours, could I pass on then to another

line of evidence of which we complain?

TOOHEY J:  Mr Hanson, just before you do.- I am not asking you

to develop the matter at this point, but as well

as complaining about the admission of the evidence,

do you complain about the way in which the trial

judge directed the jury in relation to that evidence?

MR HANSON:	Yes - - -
TOOHEY J:	By "that evidence" I mean the medical evidence to

which you have just taken us.

MR HANSON:  I do not think he mentioned the evidence about

child abuse in any way at all, the particular

phrase "child abuse". But he specifically deals with

the.· emotional abuse, and we have a complaint

about that at a later stage.

TOOHEY J:	Thank you.
MR HANSON:	Turning to a completely different category of evidence, and it is this, that neighbours gave
evidence of having heard the child cry and some
of them said that he appeared to be crying in
pain.  Now, the passages where that is to be
found are in the evidence of Hawes - I will simply
give Your Honours the page references, without
reading it - Hawes, 221 and 224; Th.orrassen,. 351, and
that passage was repeated in the summing up at 535;
Mrs Hawes, 364 and Miller, 440.

Now, each of those witnesses described the

child as crying in pain. How one ascribes pain

to the tone of a child's cry, I do not know.

Again, it is an emotive comment from witnesses

and surely it is one they could not justify: to

say a child was crying in pain, rather. than from

some other cause. These are·neighbours; Miller lives

in the unit next door; the others are neighbours who

live in adjoining houses, adjoining allotments. We

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complain about that. That should never have been

permitted.

There was a body of evidence given about

how strict the accused was in her management of

the child and they supported these comments with

examples. Could I give Your Honours these

witnesses' references: Bainbridge, 199; Caton, 171

and 173; Fragiacomo, 237 to 238 and 257; MacDonald,
399, 403; Chapman 432, at the foot of ·the page and

over on to 433. In addition to that, Mr MacDonald

at page, 400. I would ask Your Honours to look

at this passage; it seems to sum up the allegations

against her in this regard. MacDonald is not a

neighbour; he is an acquaintance.	At the top
of 400:

Could you see her attitude towards the child

in any way? ..... how was her attitude towards

the child? What was her attitude?---She

didn't show Leigh - it was sort of like a

teacher and student arrangement, so there was

no real affection or love shown to the child

or understanding of the child.

Your Honours, what we say about that is this:

in some circumstances that sort of evidence might

have particular probative value; if she were the
natural mother of the child, or in some other

circumstances. But the evidence was this: this

girl was 19 years of age; she had been brought

to Brisbane from Melbourne by the father of the

boy in November, I think it was, 1985 and the

boy died on 1 March 1986.	She came to live
wit~ him in a de facto relationship.	So, she

Tl2

with a three-year-old boy to take over the mothering	a7rives here at the age of 19 and she is presented
of him. Within a few months she was pregnant herself
~hich s~e.said distressed her. She was unhappy. Is '
it suprising then that she is seen to lack love and
affection for this child that she has only known
for a few months, that has been thrust in her lap
~o mothe:; tha~ she perhaps finds the domestic chores
mvo~ved m _looking after him and her de facto husband a little irksome; that perhaps she is strict with the boy, impatient with the boy and perhaps slaps him
more than others do?

DAWSON J:  Well now, that sounds more like an address to

the ~ury. In fact, the issues were correctly put

by His Honour the trial judge at pages 620 to 621.

:t-1R. HANSON:  Your Honour refers to his comments that:

She is not on trial for· being an unfit

mother -

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DAWSON J:  I am starting:

The Crown case is that her conduct, proved by the evidence of the neighbours demonstrates she had an animosity towards

the child.

MR HANSON:	Yes.
DAWSON J:	And then there on.
MR HANSON:	I would never - - -

DAWSON J:	You said he did not deal with child abuse. does, at the top of page 621.	He
MR HANSON:

in the popular -

I see that, Your Honour -

abusing the child -

in the vernacular. Yes, yes.	She is not charged
with doing that.

DAWSON J: And she is not on trial for that, he pointed out.

MR HANSON:	But our submission is that all of this evidence about strictness really had no probative value
in the circumstances in which the girl came in contact with the child. Petty domestic incidents
were held against her. One of them was that they were at a drive-in one night with Fragiacomo and
other children, and I think Fragiacomo bought ice c-reams for her three or four boys and the
accused refused to let this lad have an icecream. That evidence was led against her as evidence of
undue strictness, or something like that and that she would not let him go and play with other children
when they were out. Well, in other circumstances
one could see some value in that evidence, but when you see that she has only been with the child for
a couple of months, surely the probative value of
that sort of evidence really amounts to very
little and it should not have been relied upon
before the jury.

Your Honours, there was this sort of evidence

put before the jury: that the child was not one

to cry if he hurt himself, and he was a child

who was steady on his feet. The references:

Bainbridge, 203; Lewis at 391 and MacDonald at 403,

<lt:::c:1.l.i.ng with not one to dry if he hu:t 1.. iiiu1a(:;lf.

A team of them said that he was steady on his

feet. Again, we would submit that these sort of

subjective corrrrnents really have no probative value

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and in combination with the other circumstances that

we have mentioned already, create a complete

atmosphere which she would find impossible to dispel

or refute by giving evidence. You can imagine the

position that she is put in when the time comes to

give evidence that she has to meet this sort of

thing:  she would not let the boy have an ice cream

at the drive-in; there was evidence that she made

him eat a sausage at a barbecue and the witness

knew that the boy did not like eating meat - this

sort of thing was put against her - that everybody

said he was steady on his feet, so why has he

got the bruise on his forehead and that sort of

thing. How does she meet this sort of thing when

she comes to give evidence, and if she does not

given evidence, how does her counsel deal with

what the Crown is asking the jury to infer from

these sort of things? I suppose it will be said

that he would address the jury as I am trying to

address Your Honours now, that she is only 19

and she has only been there for a few months.

DAWSON J:  But the problem is deeper than that really. Is

this not the sort of situation where if the Crown

is trying to establish a relationship, it can only

do it by building the case up fact by fact; fact

by relatively insignificant fact?

MR HANSON:	I accept that, Your Honour.
DAWSON J:	But a combination of insignificant facts may

amount to something that - or relatively

insignificant facts may amount to something that

is insignificant. On the other hand, if the jury

does not think that it amounts to anything

significant, it will so decide. But that is the

only way in which a case such as this can really
be presented. There probably were some things

that should not have been admitted that had no

probative value at all. But the trouble with that

is there was no objection made to those.

MR HANSON: Well, I would like to deal with that eventually,

Your Honour, the question of the objections, but
I take - yes, I accept what Your Honour says. That

is the only way a circumstantial case can be put together. Undoubtedly the Crown had a difficult task in proving the relationship between the mother

and the child. Our complaint is that they just went

too far out to the periphery and dragged in facts
that could never, alone or in combination with

anything else, ever, really, amount to what they

were trying to prove. It just became an inquest

into her motherhood and whether t:he·child was being

abused. That is what it all added up to. It was a

difficult task the Crown set themselves.

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DAWSON J: But you see, I still have difficulty getting

your objection to it because if they are

insignificant facts, and, of course, their

probative value would not be outweighed by

their prejudicial value, the prejudice came in

the combination of all these things. The jury

would realize one that was not important. So

that really what you say does not logically hang

together.

MR HANSON:  At the outset of the trial there was a long

argument about many of these matters and what

matters could and could not be placed before the

jury, and really, it all should have been settled

there and then, Your Honour. The accused should

have been able to see what she was facing there

and then and if the whole body of the evidence

was then allowed to go to the jury, well then the remedy is to complain on appeal. But, it

all should have been put together, brought

together in perhaps an opening, or in a submission

at the outset so that she would know what she was

facing and whether or not all of these particular items

when added together could validly put together

a case against her.

As I said about the doctors, the Crown

rambled off down this track and got nowhere

and that should never have happened. I make the

same comment about the evidence of strictness.

Having regard to her circumstances, it did not

bear the weight that they would seek to put

upon it.

Did Your Honours want to adjourn at 4.15?

MASON CJ:  I thought we might continue for a while, Mr Hanson,

if it is not inconvenient to you.

MR HANSON:  No, it is not inconvenient for me,. Your Honour.

Your Honours, there was a series of

directions to the jury that were inaccurate and

were to the prejudice of the accused and I would

like to take you to them one by one. They are

not insignificant matters. They are either

misstatements of the evidence, or they

misrepresent the effect of the evidence. Could I

ask you first to look at page 581 of the summing

up, a.t line 31? Now, His Honour is talking

about Dr Mohr, the general practitioner who saw

the boy on several occasions and who referred him

to the paediatrician, Dr Cooke. Now, at 581, line 30:

~he child, according to her, appeared tired.

He volunteered to her that he had been naughty.

S:lesaid it was because the child told her he had been naughty that she arranged for a

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paediatrician to see him. He certainly

was not as happy looking on 4 February as

she had seen him on earlier occasions.

There are two serious misstatements of fact in

those passages:  "He volunteered to her that he

had been naughty." If Your Honours would look

at page 303, the evidence of Dr Mohr - we should

start at 302, line 42- sorry, perhaps line 40:

(Continued on page 19)

. ~-- -~ .- ~,.

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MR HANSON (continuing):

Were there any signs on 4 February he had

recently been belted and slapped repeatedly?

---Not that I found.

He appeared happy, did he?---Not as happy as

I had seen him.	He appered tired, he
volunteered he had been naughty.	Certainly,

as I said, that is why I arranged a paediatrician

that afternoon.	He was not as happy looking as
I have seen him.

In re-examination on the next page:

You said to my learned friend that the child volunteered that he was naughty?--He agreed

when it was told to me that he was naughty,he

said yes, he had been naughty.

So she had changed that. Apparently, His Honour just

picked up 302 and missed what is on 303.0ne can

understand the ta§k His Honour had, it was a very

long trial. .It was put to the jury and this was,

I suppose, meant to support the line of reasoning

that whenever he volunteered that he had been a

naughty boy, there was evidence of emotional abuse. This was put as one of those examples. Now, it was

not a valid example. Now, the other statement at

page 581 was the reason why Dr Mohr had referred the

boy to the paediatrician. If I could read it to you

again:

She said it was because the child told her

he had been naughty that she arranged for a

paediatrician to see him.

Your Honours, surely that is a misreading of the

passage on 302 at line 45. It was because he appeared

tired, surely. It is put beyond doubt, if you go

back to 294 to her evidence-in-chief, at line 28:

Doctor, did you advance any reason why you

referred the matter to a paediatrician?---At

that stage Lfelt it was, as I said before,

seriously disrupting the family -

this is the lack of sleep, the child was not sleeping

properly -

and as well the other clinical finding that I

noted was that Leigh did appear to be very

tired. He had dark circules under his eyes

and at that stage I felt the problem was a

matter that needed to be sorted out there and

then. i hadn 1·t elicited whai.. 1 felt was any

good reason for the sleeping pattern changing,

and that is why I referred him to a specialist

who was trained as a paediatrician as well as

specialising in behavioural problems as well.

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So, with respect, at 581 there are two serious misstatements of the effect of the evidence. Now, if

Your Honours would go back one page to 580, in

the summing up, still speaking of Dr Mohr's evidence, about the middle of 580,His Honour·- perhaps line 30:

She decided she would get the paediatrician who

specialised in behavioural problems of children

as well as other problems that appear and she said

that at that stage she had rtot dealt wit~ any

child - or suspected child abuse cases, but

she had no reason, I think, from what the

discussion was that had taken place between

her and the accused, to suspect that there was

child abuse in this case.

Now that would lead the jury to think that the reason

why Dr Mohr did not suspect child abuse was simply

the discussion she had with the accused. If you go

to Dr Mohr's evidence at page 298, at lines 35 to 45,

it was her findings and the information that was

given to her. So it was misleading to let the jury

think that she had missed the fact that this child

was being abused because she had only had a discussion
with the parents. In fact, she had examined the

child and her findings led her to that view.

Would Your Honours go to 574 in the summing up, still

speaking of the evidence of Dr Mohr in conjunction

with others, at line 35:

Their evidence -

and this is the evidence of three doctors -

Their evidence has been placed before you for you to

consider what, over that period of time from

9 January to 11 February - what the three doctors -
out of the social circle of the accused and the

child - out of the domestic environment - what

they observed when they looked at the child

when they observed the relationship between

the accused and the child on the occasions they

saw them.

You may think, using your own experience of

life and so on, although the evidence does not

go to it, they may not have spent a great deal

of time with the child and the mother - there

is no evidence of it, you might think - you are

entitled to take into account from your experience

of life what happens when you go to see doctors.

And pausing there, Your Honours, there seems to be an

attempt to water down the opinions of those doctors

... who said they saw nothing um.1::u.sJ. in the rel::i. t ~- ~- ",_,.; r

You see that at the top of the same page at line 15,

speaking of Dr Cooke:

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He said his opinion was there was a good

relationship between the accused and

the deceased.

Dr Cooke is a paediatrician. Now this

seems to be, and I do not know whether it is designed

to, but it has the effect of watering down the

corrnnents of these paediatrians who did not see anything

wrong in the relationship. Now, there was not any

evidence of cursory examinations or short examinations.

His Honour says, at the foot of 574:

The examinations might have been a bit on

the short side, but that is not relevant.

You might think, when considering the

evidence of Dr Cooke who says that he

examined the child, looking for things and
did not find them, but as far as having

the opportunity to appraise the relationship

between the accused and the son - it is a

matter you could keep in mind. None of

these doctors saw anything to suspect child

abuse, they were not considering child abuse,

they were accepting what the accused told

them, but they did not see any bruises on the

the child and they did not, in the time that

they observed the child and the accused

together, observe anything that made them
think there was any fear entertained by the

child of the accused or that there was any

antagonism between them.

Your Honours, we complain about the passage.

DAWSON J: Well, the next sentence is relevant - just the next

sentence.

MR HANSON:  Sorry, Your Honour -the next sentence?

DAWSON J: Is relevant, yes.

MR HANSON:	You use your commonsense, you may think in
circumstances if there were such fear, if
there that animosity, and so on; it might
have appeared or begun to appear.  You
must keep that in mind.

Just the impression given.to the jury, we say, with

respect, that perhaps these doctors have missed because

they did not have time; the examination was not

directed towards that topic with that inquiry in mind.

Really, it is just not the effect of the evidence

they gave.

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MR HANSON (continuing):	Would Your Honours go to 537.

His Honour is speaking of the evidence of one of

the neighbours, Mrs Thomassen, at about line 8:

His wife gave evidence and this is what she had

to say about it all. She said the first time she

noticed anything was about the second week in

January after she got back from the holidays.

She heard an adult voice yelling at the child,

the child was crying. She then said, "I

heard slapping sounds and the child seemed

to get more distressed, then I heard the

female voice saying emphatically, "Why do you

always have to cry?" then the child cried again."

In the main she said it was both adult voices -

this is the de facto ·husband, of course, who was

there, the father of the boy -

both adult voices that were raised against

the child. The voice that said, "Why do you

always have to cry?" was definitely female.

She says on that occasion, whether it was the same one that her husband was talking about

or not, certainly it was in the middle of

January - the second week in January. She

said she heard a slapping sound accompanying

the baby crying. She said it sounded like

a couple of slaps the first time, after the

child became distressed a second lot of

hitting accompanied what the woman said.

The crying became more intense, she said it

became an un~ontrollable sort of cry that

is hard to make a child stop. It happened over

a few months. She said she thought that

occurred in the early afternoons but she

wasn't sure.

We ask you to notice the plural "the early afternoons"

and "over a couple of months". In fact, the

evidence of Mrs Thomassen did not come anywhere

near that. If you go to 373 at about 28, perhaps

starting at 25:

How long had you been away on holidays? .....

the first occasion you had taken notice of
this particular accused and the child .....

What is the next thing that occured?--Well,

the first time I actually heard anything from

that particular unit was that second week in

January after we had come home from our

holidays. I was in the back bedroom of our

house and I heard adult voices raised from

that direction of that unit. They seemed to

be yelling at the child from what I could hear. The child was crying. I heard slapping sounds.

The child sounded to get more distressed.	Then
I heard the female voice saying rather

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emphatically, "Why do you always have to cry?", or words to that effect, and then the child cried again.

If you would go from there to 377 at line 46:

You simply heard nothing unusual coming from

those, or from that unit up until January,

is that right?--That's correct.

About a week after you returned from holidays

you have spoken of an incident where you heard

the adults - two of them - yelling at the

child?--That's correct.

You heard a slapping sound on that occasion?--

Yes, twice.

How many slaps did you hear all up?--Well, it

is hard to recall the exact number but I'd

say two or three both times.

And on 378:

Did you know who slapped the child - if the

child was slapped?--Well, obviously I didn't

see it, I can only judge from what I heard.

Well, is the adult yelling at the time when you heard the first slaps?---Which adult? ..... Both

adults were yelling before I heard any slaps

whatever then the child cry, then I heard the

first slaps.

Was there anything to indicate to you who was slapping the child?---Not the first time.

You believe the second time it was the accused - you heard the female?---That it must have been

her because it accompanied what she said

to the child.

Two or three I think you said on each occasion?

--Yes.

Do you recall what time of day that was?--I guess

early afternoon.	I really can't be sure of the
time.

There was no other occasion that you heard the

child slapped?--No, I don't believe so.

Your Honours, with respect, it is hard to see how

that body of evidence supports the directions of

of months", "occurred in the early afternoons", when,	the jury at 537, that it happened "over a couple
really, the woman is only talking about two occasions.

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It is not an insignificant matter, in our submission,

combined with other evidence. It gave the jury

the impression that all of the neighbours heard

an ongoing body of slapping and mistreatment.

MASON CJ:  Mr Hanson, that might be a convenient time to

adjourn.

AT 4.36 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 29 JUNE 1988

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