CBM v The Queen

[2020] NSWDC 507

District Court

New South Wales

Medium Neutral Citation:

CBM v R [2020] NSWDC 507

Hearing dates:

10 – 12, 18 – 20 August 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Criminal

Before:

Wass SC DCJ

Decision:

I am satisfied that had the prosecution been in possession of all evidence of all relevant facts it would not have been reasonable to institute the proceedings and that any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances and accordingly, I grant the certificate.

Catchwords:

CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) — Not Guilty Verdict — Judge Alone Trial — No Real Prospects — Conviction was Never a Realistic Possibility — Unreasonable Institution of Proceedings — Confirmation Bias

Legislation Cited:

Costs in Criminal Cases Act1967 (NSW)

Category:

Costs

Parties:

CBM (Applicant)
Director of Public Prosecutions (Crown)

Representation:

Counsel:
Mr P Massey (Applicant)
Mr W Creasey SC (Crown)

Solicitors:
Greg Tyler & Associates (Applicant)
Director of Public Prosecutions (Crown)

File Number(s):

2018/00340573

Publication restriction:

Statutory Non-Publication Order regarding name of injured child known as ‘CM’. Applicant to be referred to as ‘CBM’ in all material.

Judgment

Introduction

1. There is a non-publication order in respect of the name of the child, who is referred to as ‘CM’ and accordingly, given the direct relationship between her and the applicant, he is referred to as ‘CBM’.

2. The Crown brought one count on the indictment, that CBM on 3 June 2018 at Raymond Terrace in the State of New South Wales did cause grievous bodily harm to CM and was reckless as to causing her actual bodily harm. I found CBM not guilty after the Crown offered no evidence on 19 August 2020, the fifth day of the trial.

3. Mr Massey, who appeared for CBM in the trial, makes an application on a Notice of Motion for a certificate pursuant to s 2 of the Costs in Criminal Cases Act1967 (NSW).

Material and Evidence Relied On

4. The evidence relied on is: the evidence admitted in the trial; the Crown’s expert reports; and the material contained in the affidavit of Scott Sharpe sworn 20 August 2020 which records a conversation between the Crown and Dr Mitchell Hansen on 14 August 2020.

5. I have also had regard to the written submissions of Mr Massey. The Crown did not wish to be heard on the application.

Relevant Test

6. In order for a costs certificate to be granted, I must be of the opinion:

1. that if the prosecution had been in possession of evidence of all relevant facts (and I interpolate for reasons that will become obvious applying the relevant law), it would not have been reasonable to institute the proceedings; and

2. that any act or omission of the applicant that contributed, or might have contributed to the institution or continuation of the proceedings, was reasonable in the circumstances.

Onus of Proof

7. In assessing the reasonableness of the Crown in instituting the proceedings it is important to note that, as with all criminal trials, the burden of establishing the guilt of the accused is placed firmly and solely upon the Crown and that any accused is presumed innocent until proven guilty.

8. In the context of this case, which was a circumstantial one, the Crown was required to establish that there was no other reasonable inference to be drawn other than that CBM assaulted CM on or about 3 June 2018.

9. The relevant lay evidence, and the Crown’s expert reports (leaving aside the material in Scott Sharpe’s affidavit) establish that it has always been the case that the Crown could not prove beyond reasonable doubt any of the challenged elements of the offence.

10. It could not be established when the assault occurred, other than within a window of some days. Accordingly the Crown could not establish the assault occurred on 3 June 2018.

11. There is no reliable evidence as to where CM had been in that time period and as such, the Crown could not prove beyond reasonable doubt that the assault was committed at Raymond Terrace nor could it establish beyond reasonable doubt that the accused committed the assault, much less his recklessness in causing actual bodily harm.

12. The only matter that could be conclusively established on the evidence, a matter which was not challenged by CBM (at least in the trial to the point that the Crown offered no evidence), was that CM suffered grievous bodily harm by reason of her brain and retinal bleeds (“the injury”).

13. The prosecution was doomed from the start and CMB ought never have been charged. It was at all times not reasonable to institute the proceedings, based on the following matters.

Relevant Facts

14. At the time CM showed observable signs of injury she was in the care of CBM. The medical evidence however established only that the assault occurred in a period of a number of days.

15. It would have been obvious to any reasonable investigating officer that without any witness to the assault and without any admission of guilt, it would be necessary to exclude any person with relevant contact as someone who might reasonably have assaulted CM, and to exclude accidental injury.

16. By the time CBM was charged in November 2018 there was absolutely no reasonable basis upon which police could have suspected CBM above others. Police ought reasonably to have known, and in some cases did know, the following matters:

1. That CM had been in the care of at least CM’s grandparents, and certainly CM’s mother, during the relevant time period;

2. That CBM was relevantly a person of good character and had never in the past given any cause for police to suspect that he was likely to assault CM in the way alleged, or indeed at all. Indeed the Crown case rested on the inherently unlikely proposition that CBM assaulted CM in a short period of time where there was no evidence that CM was particularly fractious and no evidence that CBM was in any way agitated by her;

3. CBM had had the care of an autistic child over an extended period and by all accounts was a sympathetic, kind and patient parent.

17. The view taken by the police with regard to CBM as a “protected suspect” as early as June 2018 was unreasonable. That view infected the entire investigation and it was demonstrably designed to implicate CBM rather than make genuine enquiries about what had occurred. That view arose from the unreasonable position that, because the acts described by CBM on 3 June 2018 and thereafter could not have caused the injuries, he must have been lying about his conduct and therefore guilty.

18. Rather than making wide-ranging and general enquiries, police determined to proceed with confirmation bias, to try and unseat CBM’s version of events, including a number of interviews not conducted in the same way with other potential suspects and in which CBM was, in my view, open and forthcoming and where he was asked only cursory questions (and other witnesses were only asked cursory questions) about what was happening in the days leading up to 3 June 2018.

19. Police did so knowing that doctors were unable to put a firm chronology on the onset of the injury or its mechanism. The officer-in-charge, Detective Senior Constable Amber Stephens, gave evidence that she did not enquire of CBM about what had been going on during the relevant time because she already had "that information previously from [the mother].”

20. That spoke volumes of the confirmation bias that has plagued this investigation from the outset. That has meant that there was no reliable evidence, for example, of the following matters:

1. When was the last time prior to 3 June 2018 that CM was cared for by her grandparents, or whether or not anything happened in that time that might account for the injuries to CM;

2. Precisely what happened in the days leading up to 3 June 2018 while CM was in the care of CBM and the mother, and perhaps others; and,

3. What the two year old sibling had been doing to CM and whether or not that might account for the injuries to CM, particularly in light of the potential predisposition to injury, given CM’s head injury in March 2018.

21. By making reference to those matters I do not seek to criticise, impugn or implicate any person. I do not intend any disrespect by not referring to them by their names. I do it to protect their identities.

22. The deficiencies in the investigation by reason of the myopic approach taken by members of the Child Abuse Unit and in particular the officer-in-charge who led the investigation, meant that by the time the trial commenced, getting a clear picture of CM’s condition and what was happening leading up to 3 June 2018 was simply not possible.

23. Such is the nature of confirmation bias that it has pervaded the prosecution. The mother’s denial was put forward without question simply because she expressed it. CBM’s denial was rejected as a lie, without proof. The difference in approach was unreasonable and unexplained. It was inconsistent with the presumption of innocence, which is fundamental to a fair trial.

24. The prosecution's expert reports were demonstrably inadmissible on critical issues. However, even if they had been admitted, none was capable of implicating CBM over anyone else. The reports simply proved that CBM’s actions on 3 June 2018 could not have injured CM as described.

25. Any prosecutor acting reasonably would have realised that the evidence about the relevant events leading up to and on 3 June 2018, were such that a conviction was never a realistic possibility. The evidence included the following:

1. Only two days earlier, the couple’s two year-old did something whilst alone with CM such that CM was crying. The mother said that he looked in a way that he does when he had done something wrong. Just what he did and for how long was not known. Doctors engaged by the prosecution later opined, without any clear picture of what had happened, that the child was not physically capable of, for example, shaking CM. No other mechanism was explored. Just how they arrived at that opinion was not exposed in any reasoning and the expert evidence garnered did not properly address that issue;

2. On the morning of 3 June 2018, the two year-old child was able to “shake” CM’s head by pushing the bouncer adjacent to her head and hit it to the carpet, with the head to bounce back with the aid of the spring motion of the bouncer. Because of the view police had from the outset, nominating CBM as the suspect, that mechanism was never properly explored to discover whether or not it could provide a plausible explanation for the injuries, particularly if there had been a vulnerability by reason of the March 2018 fall, which is now known to plausibly potentially include a brain bleed. It was simply discounted without any quantitative evidence;

3. Two nights before the alleged date of injury, CM did not settle as usual. She woke every hour during the night (where she usually woke only about twice), and was crying and kicking her legs. That information was not provided to the experts in a way that it should have been. It was dismissed by the prosecutor as being a function of her having a cold. The following night she slept better, however she did so with Panadol; and

4. On the morning of 3 June 2018, prior to the mother leaving CM in the care of CBM, CM did not feed as usual.

26. In short there were four unusual things in the days leading up to 3 June 2018 that were simply not explored properly by the experts because of the approach taken by police, and later by the prosecutor, that they simply did not believe CBM because what he described could not have caused the injury.

27. That, with respect, is an illogical reversal of the onus of proof and the evidence did nothing more than establish that CBM had made no relevant admission. It was not, and never could have been, characterised as a provable lie implicating CBM.

28. Even if those unreasonable investigating decisions had not been made, it was not reasonable to commence this prosecution from the outset. As well as being (as required by the test) something that is now known to be unreasonable, it has always been unreasonable.

29. The Crown never had any prospect, in my view, on the evidence of: identifying the timing of the assault; of identifying the particular mechanism; or of implicating CBM on a circumstantial case. It had little prospect of excluding any reasonable hypothesis consistent with innocence, of which there were a number as I have described.

Decision

30. I am satisfied that had the prosecution been in possession of all evidence of all relevant facts it would not have been reasonable to institute the proceedings and that any act or omission of the applicant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances and accordingly, I grant the certificate.

Referral to the Prosecuting Agencies

31. I direct that these remarks be forwarded to the following in the hope that this approach is not repeated in the future:

1. The Director of Public Prosecutions;

2. The head of the State Crime Command;

3. The head of the NSW Child Abuse and Sex Crimes Squad;

4. The head of the Child Abuse Unit, Hunter Region; and

5. The officer-in-charge, Detective Senior Constable Amber Stephens, Child Abuse Unit, Hunter Region.

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Decision last updated: 04 September 2020