Debresay v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0024

MUSSIE DEBRESAY	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2017
DATE OF JUDGMENT:	21 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 263
JUDGMENT APPEALED FROM:	R v Debresay (Unreported, Supreme Court of Victoria, T Forrest J, 26 September 2016)

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CRIMINAL LAW — Appeal — Conviction — Manslaughter — Death of child in 2005 caused by abdominal injuries — Trial not held until 2016 — Principal prosecution evidence constituted by hearsay account of child aged four years at time of death — Conviction dependent on credibility and reliability of hearsay account — Whether jury able to exclude reasonable hypothesis consistent with innocence — Whether verdict unsafe and unsatisfactory — Appeal allowed — Judgment of acquittal entered — Criminal Procedure Act 2009 s 277(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC with Mr B Johnson	Stephen Andrianakis & Associates
For the Crown	Ms K Judd QC with Mr M D Stanton	John Cain, Solicitor for Public Prosecutions

PRIEST JA:
BEACH JA:
KAYE JA:

Introduction

‘TH’ was aged two years when she died from severe abdominal injuries on 13 May 2005. The injuries could not have been accidental. They had to have been sustained in the applicant’s flat, and to have been caused either by the applicant or by TH’s mother, ‘JL’.

In the event, JL was never charged over her daughter’s death. More than a decade after TH’s death, however, the applicant was charged with her murder, and ultimately was convicted by a jury of her manslaughter. The applicant seeks leave to appeal against that conviction, claiming that the verdict is unsafe and unsatisfactory. As will become clear, there is a single piece of hearsay evidence — something that TH’s brother, ‘AL’, said and did on the day of her death — that is critical to the outcome of the application.

When TH died, AL was aged four years. On the day that TH died, AL was spoken to by a police officer, Acting Senior Sergeant Dagmar Anderson, at a medical centre where the moribund TH had been taken by JL and the applicant. AL told Senior Sergeant Anderson, in the presence of others, that ‘MJ’ — this was an appellation that AL gave to the applicant — ‘step on’ TH, and, according to Senior Sergeant Anderson, he demonstrated ‘a sort of kicking motion … a stomp down with the foot’. It is this piece of hearsay evidence upon which the integrity of the jury’s verdict rests.

It is uncontroversial that on 13 May 2005, at about 3.00 pm, TH’s mother, ‘JL’, in the company of the applicant, took TH to the Millennium Medical Centre in Footscray. TH was not breathing and was unresponsive. Attempts to revive her were unsuccessful, and she was pronounced dead. Doctor David Ranson, a forensic pathologist, conducted a post-mortem examination at 10.30 pm that evening, and stated the ‘formal cause of death’ to be ‘blunt force injury to the abdomen’.

It was at the Millennium Medical Centre, shortly after TH was taken there by JL and the applicant, that AL told Ms Anderson that the applicant ‘step on’ TH, and demonstrated a kick or a stomp. Remarkably, however, the applicant was not charged with murder until 13 May 2015.

At the applicant’s trial, it was not disputed that TH had died from significant trauma which had caused severe abdominal injuries. One of the principal issues in the trial[1] was whether the jury could be satisfied beyond reasonable doubt that the applicant was responsible for that trauma, JL being an alternative culprit.
[1]Were the jury satisfied that the applicant inflicted the injuries, the other principal issue that then arose was the intention that accompanied the act causing death.

Importantly, upon the hearing in this Court, Senior Counsel for the respondent realistically conceded that, in order for the jury to have convicted the applicant of manslaughter, they had to have been satisfied beyond reasonable doubt of the truth and reliability of the hearsay evidence of what AL said (and demonstrated) at the medical centre. Without that evidence, senior counsel properly conceded, the jury could not have convicted. It was the sole piece of evidence which might have permitted the jury to be satisfied beyond reasonable doubt that JL had not caused the fatal injuries, but that the applicant had.

The central issue for this Court is whether the jury ought to have had a reasonable doubt on that issue — that is, whether the jury could have excluded as a reasonable hypothesis that JL caused her daughter’s death — and thus whether the verdict of manslaughter is unsafe and unsatisfactory.

We have concluded that the jury, acting reasonably, must have had a reasonable doubt as to the applicant’s guilt. For reasons upon which we will elaborate, the verdict of manslaughter is thus unsafe and unsatisfactory and must be set aside. In our view, it simply was not open to the jury to convict the applicant. Having conducted our own review and analysis of the evidence, we have a reasonable doubt about the applicant’s guilt.[2] The nature of the evidence central to the prosecution case was such that — with, perhaps, the exception of JL’s evidence — the jury enjoyed no advantage over this Court in being able to see and hear the witnesses give evidence. Importantly, however, as we will later discuss, the prosecution put to the jury that JL was not a witness of truth with respect to important aspects of her evidence relating to the critical events of 13 May 2005. Thus, the reasonable doubt that we have concerning the applicant’s guilt is a reasonable doubt that the jury should have held.[3] Indeed, in our view a properly instructed reasonable jury must have had a reasonable doubt about the applicant’s guilt.[4] An entry of a judgment of acquittal is thus the inevitable result.[5]
[2]SKA v The Queen (2011) 243 CLR 400; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66]; GAX v The Queen (2017) 344 ALR 489, 494 [20]; R v Klamo (2008) 18 VR 644, 653-4 [38]–[40]; Greensill v R (2012) 37 VR 257, 276–7 [81]–[83].
[3]M v The Queen (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ); GAX v The Queen (2017) 344 ALR 489, 495 [25].
[4]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J).
[5]Criminal Procedure Act 2009, s 277(1)(b).

Overview

TH was, as we have mentioned, aged two years when she died. Her mother and father had separated, and she lived with her mother, JL, her brother, AL, and her younger sister, ‘K’ (aged one year), in a flat in Maidstone.

In February 2005, JL began a relationship with the applicant. On 12 May 2005, JL and her three children stayed at the applicant’s small, one bedroom flat in Footscray.

As we have said, the next day, on 13 May 2005, at about 3.00 pm, JL and the applicant took TH to the Millennium Medical Centre in Footscray. She was not breathing and was unresponsive. Doctors and paramedics tried to revive her using cardio-pulmonary resuscitation, but she was dead. The post-mortem examination conducted by Dr Ranson later that evening showed that TH had extensive injuries to her head, neck, arms, legs and abdomen, and that she had died from blunt force trauma to the abdomen, which had caused ruptures of her organs and bleeding within the abdomen.

In order to assist with the narrative, and for the purposes of analysis, it is convenient to divide the evidence presented at trial into ten categories (some of which overlap):

·     first, the evidence from Millennium Medical Centre staff — including practice manager, Miriana Aleksovski, and doctors David Eckel and Asvindra Naidu — and that of paramedics, Justyne Kristic and Vincent Bryce;
·     secondly, the expert medical witnesses as to TH’s injuries, including Dr David Ranson, Dr Keith Stokes and Dr Morris Odell;
·     thirdly, the applicant’s record of interview with police;
·     fourthly, those witnesses who gave evidence of JL’s behaviour as a mother, and her treatment of TH — both generally, and in the period of 24 hours leading up to TH’s death — including Gail Phillips, Erin King, Samantha Barry, Dimitra Arvanitidis, Filmon Geresuss, Samantha Elford, Ly Duong and Gail Hegarty;
·     fifthly, evidence from members of JL’s family, including her sister, ALT, her father, MWKL, and her mother, CL;
·     sixthly, the evidence of the psychologist, Dr Rob Gordon, who spoke of his clinical engagement with AL;
·     seventhly, the evidence of police investigators, including Detective Sergeant Mark Hatt, and Detective Sergeant Timothy Moreland;
·     eighthly, the evidence of TH’s mother, JL;
·     ninthly, the evidence of those witnesses to whom AL gave an account of the applicant’s alleged assault on TH, including Acting Senior Sergeant Dagmar Anderson, JL’s brother, DL, and Quang Tran, fiancé of JL’s sister ALT; and
·     tenthly, the evidence of AL derived from the VAREs[6] and from his evidence before the jury.

[6]Video and Audio Recorded Evidence. See Criminal Procedure Act 2009, ss 366 and 367.

For reasons that will become obvious, we will deal with the evidence of AL last.

Millennium Medical Centre staff and paramedics

Miriana Aleksovski was the practice coordinator at the Millennium Medical Clinic in Footscray in 2005. At about 3.30 pm on 13 May 2005 she was working at the reception desk when ‘an Asian lady came into the clinic … holding a child’. The woman, JL, said that ‘she couldn’t wake her child up’. Ms Aleksovski ‘noticed a lump’ on the child’s forehead — it was a ‘red lump … the size of a golf ball’ — and she ‘asked what the lump was from’. JL said that the child ‘had fallen out of bed the night before‘. Ms Aleksovski said that she reached for a pulse but ‘the child’s arm was cold’. She treated that as an emergency and told the doctors there was ‘a child emergency’. Doctors Naidu and Eckel performed CPR whilst she called the ambulance. She was there ‘while the ambulance were working on the child’, and then ‘was informed that the child had passed away’. When JL was informed that the child had died, she showed ‘absolutely no emotion as a mother who’s lost a child’.

David Eckel, a medical practitioner, gave evidence that he was practising as a general practitioner at the Millennium Medical Centre in Footscray, and was working on the day of TH’s death. He said that he was made aware by the practice manager that an unconscious child had been brought in. After CPR failed, Dr Eckel recalled that ‘the mother and the father … didn’t seem to react very much’. He recalled the child’s hands being cold, ‘which usually meant the person had been dead for some time’.

Asvindra Naidu, a general practitioner, gave evidence of working at the Millennium Medical Centre in Footscray and being advised by the practice manager that an unresponsive child had been brought in. Doctor Naidu gave evidence of noting bruising on TH’s body. She noted that the child’s pupils were ‘fixed and dilated’, being ‘one of the signs of no life’, and that the extremities were ‘icy cold’. Doctor Naidu ‘started cardiopulmonary resuscitation by way of chest compression’, and then ‘started ventilating the child by way of mouth-to-mouth resuscitation’ once Dr Eckel took over CPR.

Justyne Kristic, a paramedic, gave evidence of going to the Millennium Medical Centre and attending to the victim. Two male doctors were attempting resuscitation on the two year old child, and ‘a male and a female that appeared to be the mother or parents of the child’ were in the room. Ms Kristic and her colleague Mr Bryce took over resuscitation attempts, including the use of a defibrillator. She noticed injuries on the child, including ‘a very large bruise to her forehead’, ‘some bruising under the chin‘ and ‘some bruises to the abdomen’.

Ms Kristic asked the ‘boyfriend’ how the child had received the bruise to her head, and he said that ‘she’d fallen off a cupboard’. When Ms Kristic told the mother that there was nothing more she could do, she ‘became a little teary’. The male looked ‘upset and anxious’, and he pleaded with her ‘to do more’. After this, Ms Kristic asked the male and female ‘how the little girl had sustained the injuries which were evident’. The male told her that at 5.30 that morning ‘the child was watching cartoons with her brother and that she’d fallen off the couch and hit her head on the coffee table’. He said that ‘he and the mother were in the bedroom and did not see what had happened’. When asked when they noticed that the child was not breathing, the male ‘said that they were having coffee in Footscray’. He said the child ‘was tired and went to lay down on her mum’. When he returned to the coffee shop from making a phone call, the mother told him that ‘the child wasn’t breathing’.

In cross-examination, Ms Kristic recalled both the male and female pleading with her ‘to try and do something more to save the child’. Comments recounting that the male initially had spoken about a fall from a cupboard and then changed that to a coffee table, had been recorded in the patient care record by her colleague.

Vincent Bryce was a paramedic who went to the Millennium Medical Centre along with Justyne Kristic. Mr Bryce gave evidence that the mother’s demeanour was ‘essentially flat’ when told that the child had passed away. The male also had the same sort of ‘unemotional’ response. After they had both been told of the death, Mr Bryce had conversations with each of them separately. The mother, JL, stated that TH had an ‘unwitnessed fall’ at her home at around 5.00 am that day ‘whereby she hit her forehead causing bruising to her face’. JL stated that TH ‘appeared to be well post that fall’. She indicated that TH ‘had another unwitnessed fall at 10.00 am’ and that she found TH ‘lying face down on the floor’. JL stated that at the time of both falls she was in a different room to TH with her boyfriend, and that on both occasions she heard a thump and went to investigate.

When Mr Bryce spoke with the male, he stated that TH had ‘an unwitnessed fall at approximately 8.00 pm to 9.00 pm the previous evening where she hit her head’. The male ‘was unclear as to the circumstances surrounding that fall’. After a period of time, he said that TH had ‘an unwitnessed fall at approximately 5.30 am that day’, and that ‘he was in the bedroom with the child’s mother when he heard a thump and went to investigate’. The male told Mr Bryce that he ‘believed that the child had struck her head on the coffee table’.

Under cross-examination, Mr Bryce did not recall ‘anything significant’ being said about a cupboard. He had no recollection of anyone pleading for CPR to continue.

Medical evidence concerning TH’s injuries

As we have mentioned, on 13 May 2005, Dr David Ranson, a forensic pathologist, performed an autopsy of TH’s body. In his evidence, Dr Ranson said that TH weighed 14.2 kilograms and was 97 centimetres tall. He saw various signs of recent injury in the head and neck area, including ‘six discrete areas of bruising and ten discrete abrasions, some of which were scabbed over’. There were three discrete areas of bruising to the chest. Doctor Ranson said that he saw mottled areas of bruising over the whole front of the abdomen, with individual zones of bruising within that mottled area. He also saw an area of superficial laceration to the external genitalia present over the inner aspect of the labia, on the left side, and there were two superficial lacerations on the right side inner aspect of the labia.

To the right arm, Dr Ranson said that he saw five areas of bruising, being four areas of superficial mixed bruise and abrasion and an abrasion with some scab formation to the back of the right hand. To the left arm, he said that he observed three areas of bruising and an area of abrasion and local haemorrhage to the nail bed of the left middle finger. To the right leg, Dr Ranson said that he saw widespread bruising to eleven discrete areas, some of which involved mixed abrasions. On the left leg, Dr Ranson observed six areas of bruising, one of which contained a mixed abrasion and bruise. To the back of the leg there were three areas of bruising, one of which was not obvious (it being a complex mottled area of bruising, near the lateral aspect).

Upon internal examination of TH’s scalp, Dr Ranson observed bruising to the back, side and top of the head. He said that to get that bruising required sufficient force to create bleeding, but where there is ‘bone closely beneath the skin as there is in the head’, it was easier for a bruise to occur than where it was not. Doctor Ranson said that externally, the brain appeared swollen, although that could be related either to external bruising, or to hypoxia or oxygen deficit. He said that the cardiovascular system was ‘unremarkable’. In the gastrointestinal system, the stomach contained no milk-like material or food residue.

Significantly, Dr Ranson said that he observed a haemorrhage associated with injuries to the liver which appeared to track along the outer aspect towards the pelvis. The liver had a bruise present over its front and there were widespread lacerations. There was a ragged defect in the anterior wall of the small bowel. The pancreas appeared to be ruptured and the peritoneal cavity of the abdomen contained approximately 300 millilitres of blood.

Doctor Ranson said that the tearing of the pancreas, the splitting of the liver and the defect in the bowel could be as a result of a blunt force mechanism to the upper part of the abdomen, crushing or squeezing the contents below if the child was lying on a flat surface. He said that the force could be applied to the front of the abdomen to a child lying on a flat surface, or, alternatively, to the back of the child lying face down on a flat surface. Doctor Ranson thought that a considerable degree of force was necessary to cause the abdominal injuries and that they were consistent with TH having been stepped or stomped upon. He offered the opinion that a child suffering from those abdominal injuries would be in significant pain.

In Dr Ranson’s view, a child suffering from those abdominal injuries, where there is a considerable amount of internal blood loss, would become more and more faint as time went by. He thought it was likely that the child would become drowsy, and there was a general process whereby the body shut down as it tried to cope with the blood loss. Doctor Ranson said that the periphery would become cold where there was blood loss, although the child at that stage would still be alive. He said he would expect the child to be in pain and to have difficulty walking. On the question of how long a child suffering from TH’s abdominal injuries might be expected to live, Dr Ranson thought ‘several hours’, but could not be any more precise than that.

Doctor Ranson’s opinion was that the injuries must have occurred on 13 May 2005 and not earlier. He said that it was possible that ‘one broad application of force’ could have caused the abdominal injuries.

As to the injuries to the vaginal area, Dr Ranson thought that squeezing forces front to back could be an explanation, as could ‘stride injuries’, where the legs were forced apart.

Under cross-examination, Dr Ranson accepted that the scars that he identified were old injuries, and he explained how difficult it was to age a bruise. The bruising to TH’s forehead, he said, could have been caused by one application of blunt force and it is conceivable that the bruising was sustained by a fall onto the coffee table. Doctor Ranson accepted that various abrasion-type injuries to TH’s head, face, eyelid and back of the head, were consistent with scratch injuries occasioned by children scratching themselves. He also accepted that a number of TH’s injuries could have been caused as part of the everyday life of a very young child (for example, bruises on the knees, shin and buttocks, which are often seen in children who fall while learning to walk), allowing for the possibility that they were accidentally caused. Overall, Dr Ranson said that some of the injuries were clearly older than others — particularly the scabbed abrasion injuries — and beyond those, the scars and other injuries.

We pause to note that, in his charge to the jury, the trial judge cautioned the jury about impermissible reasoning with respect to the injuries. He said:

It is clear, you might think from the evidence, that some of the injuries observed by Dr Ranson were older than others. Now, there is no evidence in this case that any of these older injuries were caused or carried out by the [applicant], and it follows that it would be impermissible to conclude that he did cause those older injuries, and that therefore he is more likely to have caused the fatal abdominal injuries to [TH]. To repeat, there is no evidence in this case that the [applicant] is responsible for those older injuries. If that is the case, which it is, it is impermissible to reason that he was responsible for them and therefore he is more likely to have caused the fatal injuries.

Returning to Dr Ranson’s cross-examination, as to TH’s external genitalia he agreed that someone changing a nappy, pressing down onto TH’s thighs and forcibly separating her legs, could have caused injuries of the type that he observed. Very forcible separation would be required, with forcible stretching of the legs. He accepted that fingernails could have caused the scratches to the inner thigh area. Doctor Ranson had said that ‘stride’ type injuries — forcing the legs apart sometimes with direct pressure on the vulval area — can result in lacerations such as were observed to the labia.

Insofar as the injury to the abdomen is concerned, Dr Ranson accepted that there seemed to be more injury to the front of the abdomen than to the back, but he could not distinguish whether the force to the abdomen was applied to the front or the back. Importantly, he said that if the abdominal injuries were the result of a fall, it would need to be a fall from a significant height so as to produce a significant speed. There may also have needed to be a protruding object involved.

On the issue of the timing of the fatal injury, Dr Ranson said that he thought a period of several hours between injury and death was reasonable. He doubted that TH’s abdominal injuries could have been caused the night before she died. Doctor Ranson thought that the injuries which caused death were sustained on 13 May 2005.

Doctor Keith Stokes, a retired paediatric surgeon, who had worked at the Royal Children’s Hospital for 30 years until retiring in 2008, gave evidence. He was asked for an expert medical opinion based on the autopsy report of Dr Ranson, the report of Dr Odell and the post-mortem photos. His opinion as to TH’s cause of death matched that of Dr Ranson: injuries to the abdominal region with massive internal blood loss. The injuries were severe and involved the liver, pancreas and intestines, with associated blood loss of huge proportions. Doctor Stokes was aware that there were also extensive soft tissue injuries to TH’s head, neck, chest, abdomen and limbs. In his opinion, those injuries were sustained at different times because of the different phases of healing that could be observed.

With respect to the abdominal injuries, Dr Stokes thought it was likely that the fatal injuries were sustained several hours prior to TH’s death. He said that the magnitude of the injuries would have been produced by severe force to the abdominal wall. In Dr Stokes’ view, the level of injuries would have caused ‘extreme pain’ and thereafter TH would have continued to be in extreme pain. She may have vomited from the shock of the injury. TH would have become pale rapidly and her conscious state would have deteriorated, manifesting itself in lethargy or drowsiness, which would occur quite rapidly. TH’s physical capabilities would have been compromised by the injury. Initially she may have been able to express herself orally, but Dr Stokes doubted that she would have been able to move other than to respond to the pain caused by the injuries. The ‘injuries were of an extreme nature’ and could not have been sustained accidentally, unless the deceased was hit by a car or suffered a fall from several stories, or something else involving that type of extreme force. In his view, ‘stomping by an adult was a possible means of sustaining those injuries’.

As to the bruise to TH’s forehead, Dr Stokes agreed that it could have been sustained by a head-butt or a fall onto a table. He agreed with Dr Ranson that it is difficult to age bruising, but that the forehead injury was relatively recent, within ten days to two weeks.

When cross-examined, Dr Stokes said that he thought that the bruising and lacerations to the thighs, with some scab formation, could have been sustained within two days to one week of TH’s death. He said those injuries were separate injuries to the injuries that caused death, and had a separate cause to the abdominal injuries. The abrasions in the thigh region could be consistent with fingernails; and the injury to the forehead was consistent with blunt force trauma.

Doctor Stokes said that the abdominal injuries ‘were a major set of injuries to vital organs in the abdominal cavity’, requiring ‘extreme’ or ‘severe’ force. He said that the abdominal injuries ‘could not have been inflicted between one to two days prior to death, or beyond two days prior to death’. Doctor Stokes thought it unlikely that TH would have been able to walk after these injuries were inflicted; and he thought it was unlikely that the child would have been able to get up from a supine position. He thought it hard to believe that TH would have been able to communicate in the hour prior to death.

Doctor Morris Odell, a forensic physician, was contacted by Dr Ranson and asked to do a post-mortem inspection of TH’s genital area, which he performed on 16 May 2005. He gave evidence that from the outside TH’s genital area looked normal; but on separating the outer labia, he observed two areas of lacerations or splitting either side of the clitoral hood. The rest of the area, including the vaginal opening, was normal, and there was no other sign of injury at all. Doctor Odell thought that the lacerations that he saw were inflicted by forceful separation of the outer labia. They had the appearance of a fresh injury inflicted recently before death, perhaps in the last day of life.

Cross-examined, Dr Odell said that the abrasions that were present on TH’s thighs could be consistent with fingernail pressure in those areas. In his opinion, the labia injuries were separate injuries to the injuries to the abdominal areas, and involved a separate process to blunt force trauma. He said that the injuries to the thighs ‘were consistent with rough or very rough handling of a very young child’.

Applicant’s record interview of interview with police

The applicant was interviewed at the Homicide Squad offices at 9.45 pm on Friday, 13 May 2005. In the course of the interview, the applicant told police that:

· he had been seeing JL for between two and three and a half months;

· he had met JL ‘somewhere in February’ and had seen her more after he lost his job on 3 May 2005;

· JL had stayed two or three times at his house;

· the day before the interview, at 2.00 pm, he had gone to a TAB in a pub in Footscray and played the ‘pokies’, and then had a coffee with JL and the children before returning to his place;

· that evening, JL slept at his house, and the children stayed in the lounge room;

· at about 6.00 pm he had visited a friend in Williamstown, whilst JL and the children remained at his place, and had arrived back at home at 8.30 or 9.00, or 9.30 pm at the latest;

· when he returned home, JL was in the kitchen, and he spoke to AL and TH who were in the lounge room;

· he then went to bed in his bedroom with JL, shutting the door, and leaving TH in ‘front of the TV’;

· he said:

… roughly about 9.30, 10 o’clock when I came back out again, I find her on the floor like, bending down, sleeping next to the TV. I put her next to the brother and she didn’t want to sit next to the brother, she wanted to sit on this couch here. … So I put her on this couch. I put the blanket, I took it out of here, the blanket out of the pram. … I put it down, I lay it and she jump on it. She slept there. I went to the room and I woke up normally when I heard the bang. That’s when we woke up. …;

· he did not wake during the night, but woke at 5.30 or 6.00 am after he heard a ‘bump’;

· he said:

… so that’s when I ran to the door and looked around and she is on the floor, like, under the – under the thing here. … [TH]. She was like, under here laying down, like on her stomach down, here [‘just under’ the coffee table]. … ;

· he then put TH next to AL on the couch and went back to bed, and he said:

… And then I went to the bedroom, like, half an hour – an hour later on, I heard this bang again, but it wasn’t as loud. She’s just slipped down because I don’t have a mattress on it, I let it sit on the edges, like on – they sit on the edges, like they feet touching the ground. So I put a pillow behind them ...

· he said that he heard TH hit her head about two or three, or three or four, times;

· the first time he heard her hit her head was about 8.00 or 8.30 or 9.00 pm, when she fell ‘from the couch … on the coffee table’, and he found her on the floor with ‘her bum sticking up’ and he put her back on the couch;

· when he found TH in the morning when he got up she was back at the TV, and then he found her sleeping sort of under the table;

· he said the cushion had been removed from the couch and put in the bathroom because TH had wet through her nappy;

· he had never hit the children, and had only looked after them once when JL went home to get a heater;

· he had seen KL with a swollen face, and was told it was eczema or an insect bite;

· he saw injuries on TH when her nappy was changed in the morning, and saw her head ‘was a little bit bruised, blood’, and also a ‘couple of bruises’ on her leg; and

· he had no idea how TH died, just thought she was sick and would have taken her to the hospital if he had known she was sick.

JL’s behaviour as a mother and her treatment of the deceased

Gail Phillips gave evidence that her two daughters, Erin King and Samantha Barry, both babysat JL’s children around Christmas 2004. At one point, Erin was babysitting basically every day and night. On an occasion that she saw the children, they seemed fine; but from her observation, JL did not seem to have any time for them. Ms Phillips had concerns for the children’s welfare because JL never seemed to be at home. On another occasion, the ‘conditions’ at the address were ‘disgusting and filthy’ and ‘there didn’t seem to be any food for the children’. From the time Erin started babysitting in 2004, sometimes Ms Phillips would ‘see the children where they had bumps and bruises to their bodies’, which she thought was just ‘normal kid stuff’.

Erin King gave evidence of babysitting for JL. At first she babysat ‘maybe once or twice in that week’. After three weeks it became overnight, ‘and then it was nearly every night’. Initially she stayed at JL’s residence on her own overnight, but after a while her sister Samantha would go with her to babysit. JL ‘didn’t have much discipline’ with the children. Ms King gave evidence of one incident where JL was on the telephone in the lounge room and TH went over to her to try and get her mother’s attention. JL ‘pushed [TH] away from her and she’s fallen back onto the couch’.

In cross-examination, Ms King said that if JL had ‘no time’ for the children ‘she would push them away’. Ms King also observed that JL ‘seemed obsessed with getting into a relationship’. When JL was in or wanted to be in a relationship ‘she became single-minded’ and ‘saw the children as holding her back in those relationships’. Ms King said that ‘when it came to a relationship with a man and trying to maintain a relationship, [JL] actually resented having the children around’. Ms King had no further contact with JL, after her sister became scared when JL was in the bedroom with someone and would not come out.

Samantha Barry often babysat for JL in the two years leading to TH’s death. She gave evidence that JL ‘didn’t really discipline [the children] at all’. Ms Barry recalled one occasion when JL told TH to go away and ‘pushed her away and she fell backwards’. Although Ms Barry saw JL give the children ‘a tap on the hand or a smack on the bum’, she did not recall seeing JL ‘inappropriately physically discipline the children’. Ms Barry gave evidence that she bathed the children and changed their nappies, but apart from when they may have fallen over or bumped their head, she had not seen ‘any bruises or injuries’ to the children ‘at all’.

Ms Barry gave further evidence that she had been to the applicant’s home ‘a handful of times’ and had seen him with the children. She noticed a difference in JL’s attitude to the children after she met the applicant. JL let the applicant discipline them and was even more ‘held back’. Ms Barry observed the applicant speaking to the children firmly, but did not recall any ‘physical action’, although she recalled one occasion where the applicant had pulled TH towards him with enough force for her to notice. The applicant ‘took over the discipline’ of the children and would use his kitchen as ‘a time-out area’.

On the Tuesday before TH died (that is, 10 May 2005), Ms Barry babysat and bathed the children but did not notice any bruising on TH. On Friday 13 May 2005, she arrived at the applicant’s flat at 12.15 pm and left at 12.45 pm. Towards the end of her visit, she saw TH lying with her back on the coffee table and her legs flat on the floor. TH looked as though she was ‘dozing off’ with her ‘eyes rolling in the back of her head’. Ms Barry went to move TH, but the applicant cut her off ‘and moved her himself’. She was later contacted by one of JL’s friends and told that TH had passed away.

In cross-examination, Ms Barry agreed that on 20 May 2005 she secretly recorded a conversation with the applicant at the request of police. During that conversation the applicant indicated that he and JL were engaged. Ms Barry agreed that on the day after TH died, she had met up with her sister and had told her that the applicant ‘was really good with the kids and spent more time with them than [JL] did’. When it was put to her that she herself ‘would grab the children forcefully by the arm and pull them around the room, pull them around the house’, and that two days before her death, TH had experienced ‘a bad fall’ whilst Ms Barry was with her, Ms Barry denied those suggestions.

Dimitra Arvanitidis gave evidence of first meeting JL at a coffee shop in Footscray. She would see JL there with the children ‘most days’ and their children would play together. Ms Arvanitidis had never seen JL ‘angry’ or ‘physically rough’ with the children. The applicant seemed ‘good’ with the children. Apart from the odd ‘bump and bruise’, Ms Arvanitidis ‘never saw any injuries on the children’. When she saw JL and the children the day before TH’s death, TH ‘seemed happy and active’. On the day that TH died, Ms Arvanitidis saw TH on JL’s lap. TH was ‘real like tired looking’ (sic.), and ‘she wasn’t awake, she wasn’t asleep’. She was ‘just slouched sort of her back against her mum’s sort of chest’ (sic.). TH ‘wasn’t very responsive’, and ‘there was a bruise on her head‘. JL said that TH ‘fell off the couch or something like that and hit herself on the coffee table’. She said that she was waiting for the applicant and that they would take TH to the hospital or the doctor. Ms Arvanitidis left and returned about an hour later. TH remained in the ‘same position’ and looked to be ‘in the same condition’. When Ms Arvanitidis offered to take her to the medical centre, JL said that she would wait for the applicant.

Under cross-examination, Ms Arvanitidis agreed that JL had said to her that she had taken TH to a doctor earlier that day to have the bruise ‘checked out’.

Filmon Geresuss had known the applicant for two or three years. He gave evidence that JL was a ‘good mother’ and said that he never saw JL hit the children ‘or anything like that’. Mr Geresuss said that the applicant would treat the children ‘like just any father figure would do’ (sic.). On the day that TH died, Mr Geresuss had seen JL at the coffee shop with the children. TH was being held by JL, looking ‘drowsy, unwell a bit’, ‘she wasn’t energetic’. Later, he returned to the coffee shop and saw JL yelling TH’s name, ‘freaking out’. He stayed with the children and then received a call from the applicant telling him to come down to the doctor.

Samantha Elford was a friend of Samantha Barry. She gave evidence that on occasion she would visit Ms Barry while she was babysitting at JL’s house, and a handful of times she stayed over and assisted with bathing and feeding the children. JL had ‘not much interest at all’ in the children. A couple of times Ms Elford had seen JL push TH back because she ‘was very clingy’; and once or twice saw TH ‘fall onto her bum’, but ‘she got straight back up and tried to hop on [JL’s] knee again’. Ms Elford had never seen JL hit TH, and had never observed injuries on TH. She had met the applicant ‘maybe five or six times’. He ‘seemed good with the children and interested’. Ms Elford said that a few times when TH would not listen the applicant got ‘a bit angry’ and his voice got ‘very loud’.

In cross-examination, Ms Elford said that ‘a couple of times’ JL pushed TH hard enough for TH ‘to fall backwards’. JL ‘was a lot better with the kids when she didn’t have a partner’.

Ly Duong was a friend of JL, and had known her for about five years. She gave evidence that she had not seen any ‘significant injuries’ on TH or AL, but a week prior to TH’s death, she had seen TH ‘with some bruising on her legs’. Her view was that JL ‘seemed loving towards the children’. Towards the end of April 2005, she had a conversation with the applicant about disciplining the children. He said that if the children were ‘naughty’ he would ‘tell them to be quiet or put them in a room’. Ms Duong said that on the day TH died, she attended the medical centre. JL was crying. The medical professionals explained that TH had passed away, and the applicant was saying, ‘No, no, you can’t, bring her back’.

During cross-examination, Ms Duong agreed that in her statement she had said that the applicant seemed ‘very loving around the children’. She was cross-examined about a statement she had made to police, in which she had said that JL had given her a ‘direction or instruction’ that when she spoke to the police she was ‘not to mention anything about this, leaving the children with MJ‘.

Gail Hegarty was a pharmacy assistant at a pharmacy in Footscray. In 2005, she had known the applicant for two years. She also knew JL, and would regularly see her sitting outside that coffee shop with her three children. Ms Hegarty thought JL ‘was quite … neglecting the children’, although she did not witness her yelling or ‘being in any way physical’ with the children. On 13 May 2005, she observed TH ‘in the pusher’, and from where Ms Hegarty was standing, ‘she seemed to be asleep’.

The statement of Xuan Dung Tran, dated 19 May 2005, was read to the jury. Doctor Tran had treated JL’s children, and stated that on 22 February 2005 TH was ‘brought in after she suffered a fall in the mall’. Doctor Tran ‘examined her and found a very tiny scalp wound on top of her head’. There was no loss of consciousness. Doctor Tran told JL to watch TH in case of vomiting or loss of consciousness, and that, if any of this occurred, she was to take TH to hospital.

Ann De Vries, the coordinator of the Maribyrnong Maternal and Child Health Immunisation Unit (‘M and CH’) situated at Footscray, had also made a statement which was read to the jury. JL visited M and CH ‘25 times altogether from 12 June 2001 until 13 January 2005’. JL ‘was a regular attendee with the M and CH up until March of 2005 and there were never any problems with her failing to attend appointments prior to March 2005’. Apart from JL’s failure to respond to a letter of 3 May 2005 concerning immunisation of K, there ‘were no previous concerns from the M and CH Service regarding injuries with any of the children’, or about JL’s ‘treatment of the children’.

Rae O’Brien was a kindergarten teacher and had made a statement on 8 November 2005. In that statement, which was read to the jury, she described AL’s attendances at the kindergarten, and stated that there ‘are no recorded illnesses, injuries or concerns regarding [AL]’.

JL’s family

CL was JL’s mother. Her statement, and parts of her committal depositions, were read into evidence. She said that her dog had not caused scratches to TH’s face. During her evidence, she agreed that AL had told her that he was often stood on by the applicant, as was TH. AL often mentioned that the applicant had put a plastic bag ‘to his mouth’.

ALT, JL’s sister, gave evidence that whenever she observed the children they were normal, healthy kids and never really got up to any trouble. She had not observed any injuries on them, other than ‘everyday kid things’. One time AL fell and hit his head, but other than that, ‘nothing major’. ALT did not have any concerns about JL’s behaviour towards the children.

On Mother’s Day, 8 May 2005, the family went to a restaurant in Doncaster East and ALT saw JL and the children there. TH was ‘very clingy’, quiet and subdued, but ALT did not notice anything of TH’s physical appearance. On 10 May 2005, when she went over to see JL and the children, she noticed that they acted very differently when the applicant arrived. At the time she was holding the children and they kind of leaned into her closer. ALT recalled the applicant asking if AL and TH had been naughty. The applicant told her that when the kids were naughty he would put them in the kitchen in the dark and close the door.

On the day of TH’s death, at the medical clinic, she asked AL what had happened to TH. AL said that the applicant had stepped on her. He said that TH was a naughty girl and that the applicant had stepped on her and he demonstrated. Later, he showed the police officer, and did several stepping motions.

Sometime later, on Sunday 15 May 2005, ALT was having breakfast with Quang Tran and AL, when AL said ‘MJ hit [TH]’ and ‘MJ kicked [TH]’. When asked where, AL said ‘On her tummy’, and that TH was lying down at the time. (It must be said, however, that much (if not all) of what AL asserted in this conversation was the product of leading questions by Quang Tran.) On another occasion, after ALT had been given a recording device by the police, she had a further conversation with AL. A number of subsequent conversations also occurred.

DL, JL’s brother, went to the medical centre the day TH died. He went into a room with ALT. They spoke to AL. ALT asked him what had happened. AL said that TH was naughty. He ‘was sitting on the bed and he had his foot and he put his foot down in a stomping motion’. He also did a head-butt motion, ‘thrusting the head forward in a quick motion’, and just said ‘can’t breathe’.

The psychologist, Dr Gordon

Doctor Rob Gordon is a clinical psychologist who specialises treating trauma in children and adults. He gave evidence that he has treated AL, using ‘child psychotherapy’, since 23 May 2005. Doctor Gordon said that in the early stages of treatment AL’s ‘ability to communicate was fairly limited’, and that ‘there was a very strong element of emotional inhibition through fear that made it very difficult for him to communicate’.

During Dr Gordon’s fifth session with AL, on 16 June 2005, Dr Gordon asked him who hurt TH, and he answered ‘MJ’, who was a ‘bad man’. AL said MJ hurt TH ‘in the kitchen’.

On 1 July 2005, Dr Gordon had a discussion with him ‘about him being scared’. When Dr Gordon asked AL what scared him, he indicated that MJ made him scared; that MJ ‘hit’ TH and ‘hurt her’; and that MJ is ‘naughty’. AL also indicated that his mother was ‘naughty’ because she did not stop MJ from hurting him and TH.

Doctor Gordon also gave evidence of a consultation on 18 August 2006, when police were coming to have a discussion with AL. In the course of that consultation, AL indicated that MJ ‘stamped’ on TH ‘in the living room’.

Back in 2005 when Dr Gordon first began treating AL, it was usually his grandmother who would bring him to the treatment sessions. For the first year Dr Gordon would see AL weekly, moving to fortnightly in the second year. As at September 2016, Dr Gordon was seeing AL every four weeks.

Cross-examined, Dr Gordon agreed that he made a clinical note in a session on 28 May 2005 that AL’s ‘distractibility and spontaneous associations suggest limited rational process’. Further, in a session of 2 June 2005, AL ‘shook his head and looked nervous’ and said that he did not want to see his mother (whom he had not seen since the day of TH’s death). AL’s grandmother then intervened, saying: ‘Tell Rob. Don’t lie. Tell him the truth’. According to Dr Gordon, AL then ‘clearly became confused since he did not know what the truth was’.

Doctor Gordon agreed that he formed the view in the early sessions that AL ‘was not able to communicate and function cognitively at an age-appropriate level’, cognitive functioning embracing ‘processes of memory, perception, judgment and reasoning’. He was concerned with the nature of AL’s grandmother’s intervention in the session of 2 June 2005, because of the ‘sort of language’ and ‘sort of approach to a four-year-old’, and ‘the potential for the grandmother to be altering, changing, [and] trying to influence this young boy’s thought patterns’. From an ‘early period’ there was ‘a constant theme from the grandmother’ that she was determined that AL ‘be able to have a relationship with his mother’. Due to the type of intervention, Dr Gordon was ‘concerned that the grandmother was attempting to influence the way this child felt about his mother’.

On 1 July 2005, Dr Gordon had a session with AL, in which he asked the grandmother to ‘just stay in the room and not say anything’. When Dr Gordon asked AL if he wanted to see mother, he ‘shook his head firmly, looked alarmed and said no’. He looked frightened. In a session a week later, AL said his mother was ‘naughty’ but did not say why. On 14 October 2005, AL said he still did not want to see his mother. He said, ‘I’m afraid of her’. AL also said his mother made him ‘be like a chicken’; but when Dr Gordon asked AL if his mother hurt him he was ‘indefinite’.

In further moderately extensive cross-examination which it is unnecessary to set out, Dr Gordon spoke of AL’s expressions of fear about his mother, and of the grandmother accusing AL of lying about various topics.

Police investigators

Detective Sergeant Mark Hatt was the informant. In 2005 he was attached to the Homicide Squad and was in charge of the investigation. He produced a Melways map showing the locations of places mentioned in the evidence; a floor plan of the applicant’s flat; and photographs and a video recording of the applicant’s flat.

Detective Sergeant Timothy Moreland was also attached to the Homicide Squad in 2005. At 8.23 pm on Friday, 13 may 2005, he went to the applicant’s flat in Footscray. Whilst searching the kitchen area, he noticed a white coloured rag in a plastic bag. It was damp and appeared to have blood on it. Another light coloured rag was retrieved from the bag and had a darker burn-type stain that did not appear to be blood. A third rag was also located in a tool kit or bag. Detective Moreland also gave evidence that, at 1.20 pm on 1 September 2005, he and Detective Hatt arrested JL; and that, at 4.50 pm that day, he and Detective Russell Sheather arrested the applicant. Both JL and the applicant were later interviewed.

The evidence of JL

JL, TH’s mother, gave evidence that in 2004 she used two babysitters, Erin King and Samantha Barry. Samantha Barry ‘would be more rough with the kids’, but JL ‘didn’t mention it to anyone’. If one of the kids was naughty, ‘Samantha would put her in one of the rooms for five minutes in the dark’. JL denied, however, seeing ‘any injuries’ on the children.

JL said the applicant treated the children like ‘a loving father’. The children called him ‘MJ Daddy’. JL denied having seen him touch the children in an inappropriate physical way. The night before TH died, the applicant put TH in the kitchen for misbehaviour. JL thought this was because TH had wet her nappies which went through to the couch.

The night before TH’s death, JL recalled that TH ‘had a fall’. She knew that because ‘there was a thump outside during the night’. When they went out, TH ‘had hit her head and she was on the floor’, face down. TH ‘didn’t cry or anything’, she ‘just said she fell’.

At one stage TH’s nappy soaked through her clothes onto the cushion of the couch and ‘she was taken to the kitchen’ by the applicant. JL denied that the applicant was angry. When TH’s nappy was changed, JL could not remember noticing any marks around her vagina or on her thighs but thought that she had a mark on her forehead. She thought that when she was changing the nappy in the morning she had noticed marks on TH’s thighs. That morning, TH was ‘tired’ and ‘wasn’t active’, but she did not complain ‘about being in any pain’.

They went to the café. TH ‘walked halfway and said she was tired’. At the café TH went to sleep in JL’s arms. JL became concerned when TH would not wake up when JL called her name. TH’s fingers were turning blue, and JL splashed water on her face. At the medical centre, TH ‘wasn’t able to be revived’.

JL did not know how TH had got any of the ‘bruises and abrasions’ that were on her body and denied having caused them. She denied seeing the applicant do anything ‘to cause those injuries’ or the abdominal injuries.

The prosecution made an application under s 38 of the Evidence Act 2008, to cross-examine JL as an unfavourable witness. That resulted in the judge granting limited leave to cross-examine; and, on 6 September 2016, the judge granted JL a certificate under s 128 of the Act.

It is fair to say that, when asked about what she had told police at the medical centre, JL said repeatedly that she could not remember. A small extract of her cross-examination by the prosecutor will suffice to provide the flavour of her evidence, which, we pause to note, was very unsatisfactory:

Do you accept that you’ve given different versions about the number of falls?---Not that I’m aware of.
Do you accept that you’ve given different versions of the circumstances of the falls?---No.
I’ll take you firstly to a conversation that you had at the medical clinic and I want to suggest that that was with a male ambulance officer by the name of Paul Bryce. Do you recall that conversation?---I remember talking to someone but I don’t remember who it was.
I suggest that you told him that [TH] had had two falls?---I don’t remember.
I suggest that you told him that you didn’t see either of the falls?---I wasn’t there so, no, I didn’t see it.
No, I’m not asking you about what you saw, I’m just asking you about the conversation that you had with the male ambulance member, Mr Bryce. Did you tell him that you didn’t see either of the falls?---I don’t remember.
Did you say that both times you heard a thump?---I would have said I heard a bump, but I wouldn’t remember how many times.
What I suggest that you said to Mr Bryce was that both times you heard a thump. Do you agree with that?---I don’t remember.
Did you say to him that the first fall was at around 5 am on that morning?---I don’t remember.
Did you say to him that [TH] had hit her forehead causing bruising?---I think I said that.
Did you say to Mr Bryce that [TH] had a second fall at 10 am?---I don’t remember.
Did you say to Mr Bryce that you found [TH] lying face down on the floor?---Yes.
Did you say to him that at the time of both of those falls that you were in a different room than [TH]?---I don’t remember.

AL’s account of the assault to third parties

Acting Senior Sergeant Dagmar Anderson was, in 2005, attached to the Sunshine Sexual Offences and Child Abuse Unit. On Friday, 13 May 2005, she was called to attend the medical centre, arriving there at 5.00 pm. She gave the following evidence:

… I had the conversation with [ALT] and then I went across and um started trying to speak with [AL]. He was um a bit – he was clingy, he was a bit wary, he was constrained in his talking so we then negotiated with the medical centre to use another treatment room so that we could actually have a more contained conversation with him and that's what we did. We then moved into a second treatment room at the back of the foyer area. So that was [ML], [DL], which is [JL’s] brother, and Quang [Tran] all sat along one side of the treatment room. The um – there’s a sort of a treatment table which [AL] was sitting on and I sat in front of him and [ALT] sat offset and closest to [AL] so that it was more a - sort of a triangle of [AL], [ALT] and myself.
…
… So we started the conversation in a general free flowing sense around um that introduced myself um as a policewoman, the fact that I – I deal with children all the time, that um I was interested in getting to know him. We spoke about things like his school, friends at school, um all with a view to building a rapport, engaging with him, hearing from him um and actually so that I could understand his capacity for narrative and for telling a story as well.
…
… I made notes in the daybook of everything that he said to me, some of the things um I didn’t necessarily follow from one bit to the next, I just simply wrote down what he said.
…
… So the way I recorded it was purely by writing notes. I um was – it was with a view to actually understanding the story, um how they had come to arrive um at the medical centre and everything that had happened in the preceding 24 hours and um I wasn’t equipped with any video or tape recording mechanism so it’s simply handwritten notes.
…
… So I said: ‘What did you do today?’ He said: ‘Went to MJ house.’ Amanda stated MJ was the name the children had for [the applicant]. I said: ‘What happened then?’ He said: ‘Sit down and rest.’ I said: ‘What happened then?’ He said: ‘[TH] crying at MJ house.’ Amanda said: ‘Why was [TH] crying?’ He said: ‘Sleeping on the table, MJ from bedroom took her to the kitchen, used the bathroom.’ … I said, ‘Then what happened?’ He said, ‘[TH] sick. MJ tell her to sit down on the kitchen floor.’ I then saw Andrew demonstrating vomiting, holding his hand over his mouth and leaning forward. … He was making a - a gagging sound. … He then said, ‘[TH] wee-wee on the couch, crying.’ I said, ‘Who was crying?’ He said, ‘[K] didn't close her eyes.’ Amanda said, ‘Who was crying?’ He said: ‘She put ice pack’ - and there was a delay - ‘on mouth.’ And I have in brackets, ([K]). I can't recall whether he said [K] or whether I believed that that was what he meant. … I said, ‘Why?’ He said, ‘Blue’ – and there was a delay – ‘[TH] crying.’ I said, ‘Why?’ He said, ‘We sleeping, take her socks off, naughty.’ Referring to [TH], and again that’s my note that he was referring to [TH]. I said, ‘Why naughty?’ He said: ‘Take her to the kitchen’ and he said something else which is indecipherable. He was speaking quite quietly by this stage and – yeah, it was a bit hard to hear. … [ALT] said, ‘Where take her?’ He said: ‘MJ took [TH] to the kitchen. He turn off the lights.’ I said, ‘Then what happened?’ He said: ‘[TH] sleeping’ and he said something else indecipherable. ‘MJ step on.’ As he was doing that, he pointed to the top of his right boot, his foot, he was wearing boots, and I was trying to understand what he was talking about, I said, ‘Where?’ He said, ‘On lounge room, [TH]’, and then he started demonstrating, he put his hand in the middle of his back below shoulder blades, he pushed himself forward slightly and at the same time as he was doing that – awkward – at the same time he was doing that, he pushed his right foot down in a sort of a kicking motion … it was the pushing and then it was a stomp down with the foot. … I said, ‘Did you see [TH] fall or did you hear about it or someone told you she fell?’ He said, ‘[TH] was a bad girl.’ I said, ‘Why was [TH] bad?’ He said, ‘MJ being silly. He do like this,’ and he again demonstrated pushing his foot down in a sort of a kicking motion. By this stage his foot was swinging more than the push down, it was a different motion. …

Senior Sergeant Anderson’s involvement in the case continued until 15 September 2005. From May to September 2005 she conducted a number of VAREs with AL.

Quang Tran was engaged to ALT in 2005. He is now a police officer. Mr Tran would occasionally visit JL and the children. He had never witnessed any inappropriate discipline of the children. On Mother’s Day, 8 May 2005, however, he attended a family gathering and noticed that TH had three slight scratches on her face. Importantly, he gave the following evidence of what he saw and heard at the medical centre on the day TH died:

Now when you’re in the consulting room and [Senior Sergeant Anderson] was answering – asking questions of [AL], did [Senior Sergeant Anderson] say to [AL], ‘What did you do today?’ and [AL] said, ‘I went to MJ house’?---Yes, that’s right.
Did [Senior Sergeant Anderson] say ‘What happened there?’ and did [AL] say, ‘MJ kicked [TH]’?---Yes, that’s right.
Did [Senior Sergeant Anderson] ask, ‘How did MJ do that’?---Yes.
Did [AL] then make some sort of action?---Yes, he demonstrated a stomping motion with his foot.
Are you able to just demonstrate to the members of the jury what you saw [AL] do?---Ah, physically demonstrate it?
Yes please?---Yes, so he - he was standing and just with one foot, I don’t know if it was his left or right foot but he just stomped on the floor.
HIS HONOUR: I might ask you, Mr Tran, to go down to the floor of the court and demonstrate that?---Sure.
…
HIS HONOUR: … The witness with his right leg described a stamping, stomping motion with the sole of his right foot striking the ground.
[PROSECUTOR]: Thank you, Your Honour. (To witness) Did the conversation continue where [Senior Sergeant Anderson] Anderson asked where was [TH] and [AL] said, ‘Lounge room’?---Yes, that’s right.
Did [Senior Sergeant Anderson] ask, ‘What was she doing’?---Yes.
And did [AL] say, ‘On the floor’?---Yes.
Did [Senior Sergeant Anderson] say, ‘Why did MJ kick her’ and did [AL] say, ‘[TH] bad girl, she had to go kitchen’?---Yes.
Did [Senior Sergeant Anderson] ask, ‘How was [TH] bad girl’ and did [AL] say, ‘[TH] do wee-wee’?---Yes.
Did [Senior Sergeant Anderson] ask, ‘What was Mummy doing’ and did [AL] say, ‘Mummy in bedroom eating sandwich, Mummy sick’?---Yes.

MWKL, JL’s father, gave evidence that JL was a good mother. Although she would tell the children off at times, she was not aggressive towards them. He gave evidence of attending the Millennium Medical Centre on 13 May 2005 and of a conversation between a policewoman and AL. He gave the following evidence:

[PROSECUTOR]: Can you please just tell us what that conversation was?---Well, the policewoman asked [AL] what had happened and what he saw, and [AL] said … he saw MJ, said [TH] was naughty and … he sort of a – show a stomping motion to what MJ did to [TH].
So you’re described a stomping motion, a sort of stomping motion?---Yes.
Are you able to demonstrate for the jury what that was?---Yeah. Yeah, he – he started
HIS HONOUR: I think, [MWKL], if you could go down onto the floor of the court so we can all see what you're about to show us?--- …[AL] said MJ said [TH] was naughty and he started doing like this to – on the floor, said that’s what he did to [TH] that’s what he said.
…
[PROSECUTOR]: Thank you. For the transcript, Your Honour, the witness indicated a stomping down motion with the right leg, up and down.
HIS HONOUR: Two or three times.

AL’s evidence

Eleven years after TH died, when AL was aged 15,[7] he testified at the applicant’s trial. AL gave evidence that what he had told police in a number of recordings, VAREs,[8] was ‘the truth’. Nine of the VAREs were played to the jury and stood as his evidence-in-chief.
[7]His date of birth is 14 December 2000.
[8]See footnote 6 above.

There were ten VAREs in total, but, as we have indicated, nine only were relied upon. They became Exhibit 7 for identification. Police conducted nine of the VAREs over a 15 month period in 2005 and 2006, eight in that series being played to the jury. Those nine included VAREs conducted on, first, 13 May 2005 (at 9.50 pm); secondly, 16 May 2005; thirdly, 31 May 2005; fourthly, 16 June 2005; fifthly, 14 July 2005; sixthly, 17 August 2005; seventhly, 12 April 2006; and, eighthly, 18 August of 2006. (The VARE that was third in the series of nine, conducted on 18 May 2005, was the one not played to the jury.) A tenth VARE — the ninth played to the jury — was conducted more than nine years after the last, on 28 January of 2015. It also became part of Exhibit 7 for identification. As mentioned, the nine VAREs played to the jury constituted AL’s evidence-in-chief.

It is, we think, fair to say that AL said nothing of any relevance until the fourth VARE. Throughout the interviews, at times AL fidgeted, walked around the room, sat in the police officers’ laps and showed a general inability to concentrate, such behaviour appearing to us to be consistent with Dr Gordon’s opinion that AL ‘was not able to communicate and function cognitively at an age-appropriate level’.

In the third VARE played to the jury, conducted by Senior Sergeant Anderson on 31 May 2005,[9] AL said TH ‘got hurt’, but when asked how TH got hurt, AL shook his head.
[9]It was the fourth VARE in the series conducted by police.

The next VARE, on 16 June 2005, rendered a complaint from AL that MJ hurt TH:

A. I wanna be a angel like [TH].
Q. Mm. Is [TH] a angel?
A. I’m a angel like [TH].
Q. Mm. Mm. Is [TH] a angel?
A. …
Q. Did someone hurt [TH]?
A. MJ did it.
Q. Did he? A Yes, he’s bad guy.
A. Oh.
Q. What does MJ do?
A. Hit [TH] like this (banging sound) …
Q. Oh, That’s ---?
A. Yeah.
Q. A stamp of your foot on the ground.
A. He was being naughty. He’s a bad guy.

After the passage of conversation above, AL’s attention wandered and he became preoccupied with a ball game.

In the fifth VARE,[10] AL again said that MJ — who he said was ‘very stupid’ and a ‘bad guy’ — had hurt TH. He said MJ was a ‘bad guy’: ‘Cause [sic] my mum wanted to be a friend for him … and my mum is being silly. She wanted to be a good friend for MJ’.
[10]It was the sixth VARE conducted by police.

On 17 August 2005, in the sixth VARE,[11] AL told police that ‘MJ hurt [TH] … he put her in a room, and [TH] wee-wee in MJ’s chair, and MJ used a plastic bag to don’t let her cry (AL put a hand over his mouth), and she’s …’. AL said TH ‘got naughty’ and ‘MJ’s a bad guy’.
[11]It was the seventh VARE conducted by police.

Senior Constable Tracey O’Neill conducted the seventh VARE[12] on 12 April 2006, when AL was aged five years. It contained the following exchanges between police and AL:
[12]It was the eighth VARE conducted by police.

Q. [TH]. What can you tell me about [TH]?
A. MJ hurt her.
…
Q. Okay. And when you say he hurt her, what happened?
A. He hurt [TH] in the head.
Q. Can you tell me what happened?
A. [TH] was crying.
Q. Yep.
A. And MJ hurt her.
Q. And how did he hurt her?
A. She – ‘cos she was naughty. He was naughty.
Q. Okay. So where was [TH] when MJ hurt her?
A. At his – at MJ’s house.
Q. Okay. And in what room were you? Where you there too?
A. No.
Q. No? What room were you in at MJ’s house?
A. The lounge room.
Q. And where was [TH]?
A. In the lounge room with me.
Q. Okay. So, you said she was crying in the lounge room with you?
A. (Nods head.)
Q. Where was Mummy?
A. Mummy was in MJ’s house.
Q. Was she in the lounge room or was she in another room?
A. Another room.
Q. Okay.
A. At MJ’s room.
…
Q. What happened after that?
A. He get the bag and do it here (indicates his mouth) and I can’t – and I can’t talk.
Q. Okay. So, who – who came in the room?
A. MJ.
Q. Okay. And you said something about a bag. What was the bag?
A. The bag was – he hi-, kicked [TH] in the head, and me.
Q. Okay. So, when you’re in the lounge room, [TH] was crying and MJ came in. Is that right?
A. (Nods head)
Q. And what did he do then?
A. Get the bag and do it here (indicates mouth).
Q. On whose mouth? Your mouth or [TH’s] mouth?
A. My mouth – and [TH’s] mouth.
Q. Okay. And what was the bag? Where was that from?
A. From the – the bag – the bag in the cupboard.
Q. Okay. And is it like a bag - - -?
A. Blue.
Q. A blue bag?
A. Yeah.
Q. And is it like a bag that you put all your clothes in or is it something that you put your shopping in? What type of bag is it?
A. Put my clothes in.
…
Q. … And where did he put it on your mouth?
A. Here (indicates mouth).
Q. And how long did he keep it there for?
A. No, he get his hand here (indicates mouth).
Q. He put his hand on there?
A. Yeah. And I couldn’t talk. (Covers his mouth.) And I was – and I kept cry-, crying.
Q. You did cry?
A. Yeah.
Q. Okay. And did this happen the same night when MJ hurt [TH]?
A. Yeah.
…
Q. [TH]. What can you tell me about [TH]?
A [TH], and MJ hurt her.
Q. Yep. And how did he hurt her?
A. Hit her in the head – in the head.
Q. He – sorry?
A. In the head.
Q. What – what did he do to her head?
A. He hit.
Q. Okay. What did he hit her head with?
A. His hand.
Q. His hand. And whereabouts did that happen?
A. In – in MJ’s house.
Q. Yep. And do you remember what room in MJ’s house?
A. In the lounge, in ---
Q. In the - - -?
A. In the kitchen.
Q. In the kitchen? And were you in the kitchen with MJ and [TH]?
A. (Nods head).
Q. Yeah. And what else happened?
A. He … the bag and put here (indicates mouth).
Q. Okay. So, before when you were talking about the blue bag, is that the same blue bag or is it a different bag?
A. Same.
Q. Okay. And what did he do with it?
A. Just put it here (indicates mouth).
Q. Okay. And when you say here, what are – what – whereabouts are you pointing to?
A. Here (indicates mouth).
…
Q. And how long did he keep it there for?
A. No, he get his hand.
Q. He put his hand? Where?
A. Around the top.
Q. The top of what?
A. The top next to the bag.
Q. Okay. So, the bag – can you show me whereabouts – did it go up higher on her face or just on her lips? Down – whereabouts did it go?
A. Here (indicates mouth).
Q. Here? Okay. And was it just a little bit of the bag or all of the bag? What was it?
A. A little.
Q. Little bit? And he – and how long do you think that was on there? A little time or a long time?
A. A long time.
Q. Okay. And was MJ talking to [TH] when that was going on?
A. (Nods head.)
Q. What was he saying?
A. Saying, ‘If you be naughty’ … Get [TH] to the – to the – to the police.
Q. So, he said that to [TH]?
A. (Nods head.)
Q. Okay. So, when – whereabouts was Mummy when he had the bag on [TH’s] mouth?
A. In the lounge room.
Q. Okay. So, after the bag was on – on her mouth, what happened after that?
A. He – he go to his room.
Q. Okay. And where was [TH]?
A. [TH] was with me.
Q. Okay. And how was she then?
A. She was – she was with me and [K].
Q. And [K]. Okay. And was [TH] crying or was she asleep or was she talking? How was she?
A. She was – she was watching TV.
Q. Okay. So, when you said that he hurt her, y-, have we talked about everything or was there other times?
A. Other times.
Q. Can you tell me about the other times?
A. Hurt her in the head.
Q. Okay. Can you tell me about that one?
A. He got his hand and hit the head.
Q. And when was that?
A. That was in the lounge room.

Several months later, Senior Constable O’Neill conducted the eighth VARE[13] on 18 August 2006. He said MJ had hit him and was ‘naughty’. The VARE proceeded:
[13]It was the ninth VARE conducted by police.

Q. Okay. So when you said before you wanted to talk about MJ and [TH], what – whereabouts were you when that happened?
A. I was watching TV and [TH] watched TV and she – he went out to see her and he hit [TH].
Q. He hit [TH]. Okay. So was this at the Templestowe house or another house?
A. Temple –, another house.
Q. Okay. And was Mummy at this house?
A. Which one?
Q. At the house that you’re talking about now when the – when MJ came out and hit [TH]. Was Mummy home?
A. Yeah.
Q. Where was she?
A. She was in the room sleeping.
Q. Sleeping. And who – you were watching telly. Who else was in the room with you?
A. [TH] and Kelly and me.
Q. And where was MJ?
A. In the room asleep.
Q. Okay. But then you said he came out and hit [TH]. What did he come out for?
A. To see [TH] to hit her.
Q. And why did he do that?
A. Because [TH] was naughty.
Q. She was naughty. What was she doing?
A. MJ was.
Q. MJ was naughty, okay. So MJ came out and when he – when he hit [TH] how did he hit her?
A. Hit her hard.
Q. He hit her hard. And whereabouts on her was it? Like on her head or her hand? Whereabouts on her body was it?
A. On her head.
Q. On her head. Okay. And what … part of MJ hit [TH]? which part of his – was it head, his hand, his legs? What type of part hit [TH]?
A. His legs.
Q. His legs. And you know how you’ve got really, really long legs, is it the top of your leg or the middle of the leg or the bottom of the leg?
A. The bottom of the leg.
Q. Okay. So was – was [TH] – where was she in the room when MJ hit her?
A. In the lounge room.
Q. Chairs. So was she sitting on the chair or sitting on the floor?
A. Sitting on the chair.
Q. On the chair. Okay. So you said MJ came out because she was naughty and when he hit her was she sitting on the couch or was she somewhere else?
A. Sitting on the couch.
Q. Okay. And how many times do you think that he hit her?
A. Hit one time.
Q. One time. And then what happened?
A. I saw MJ hit [TH].
Q. Yep. And he used his bottom part of his leg, you said. And whereabouts did he – did he hit her?
A. She hit (inaudible) leg.
Q. Okay. So was [TH] – when – when he’s hit – hit her with the bottom part of his leg, where was [TH]? Was she on the chair or was she on the floor?
A. A chair.
Q. Okay. And was she sitting next to you or were you sitting on another part of the couch?
A. Another part of the couch.
Q. Okay. And why was it that he came out and – and hit her? She was being naughty, was she? Do you remember what she was doing?
A. No.
Q. No. Okay. And what happened after he had hit her with his foot or with the bottom part of his leg? What – what happened?
A. (Inaudible) she – [TH] was crying.
Q. Okay. And then what happened?
A. MJ went to sleep.
Q. Okay. So she was crying. So MJ did what? When she was crying what did MJ do?
A. He went in – in the room to sleep.
Q. Okay. And what … what did [TH] do?
A. [TH] was sitting down.
Q. Yep. And how was she?
A. She was good.

What AL told the police in the course of the VAREs was far from consistent. In the final VARE, conducted on 28 January 2015, when he was aged 14 years — and almost ten years after the event — AL described an incident where MJ was beating TH up. He told Senior Detective Cory Knox:

Well, all I remember was when [TH] was screaming in the kitchen, and, yeah, she was bleeding. … She was screaming and yelling and, she said that she was hurt, she couldn’t move, she kept saying her back was hurting. … I saw the man hitting [TH], started beating her up. … Think [sic.], kicking her, pushing her around. … In the kitchen. … Just near the stove, lying on the floor. …

In earlier passages in that final VARE, AL claimed that he had been badly hurt:

Q. Okay. Tell me about the man’s house.
A. Well my mum would always be in his bedroom, and my two younger sisters and I would be in the living room.
Q. Mm’hm.
A. Just be watching TV.
Q. Mm’hm. What else can you remember?
A. That we got badly injured.
Q. Tell me about that.
A. I think that man - when my mum’s asleep, I think, that man would always just come out and start hitting us and hurting us. That’s all I really know. …
Q. Tell me in as much detail as you can remember about what happened in the living room.
A. He would – the man would always come out and take us to his kitchen and start hitting us, and I think kicking us as well.
Q. Okay.
A. And we were badly injured. And I think after that he would just leave us there and then just go back to his room. That’s all I remember.
Q. Okay. When you say he’d come out – out of his bedroom and take you into the kitchen, tell me what happened when you were in the kitchen.
A. He would start, like, pulling and pushing us, and started hitting and kicking us.
Q. When you say that he was kicking you and hurting you, and you were badly injured, who was badly injured?
A. Well, I – I was quite badly injured and [TH] was. She said that – I think she said her back was hurting.
Q. Okay. Tell me about your injuries. Tell me where you were sore.
A. Well, nearly my whole body was sore. I couldn’t move properly.
Q. Yeah?
A. Mostly my leg was sore.
…

When AL was called to give evidence at the trial, prosecuting counsel took AL to each of the VAREs individually and asked with respect to each, ‘… is what you told the police the truth?’, eliciting in each case the simple answer, ‘Yes’. The VAREs thus stood as AL’s evidence-in-chief. No attempt was made in evidence-in-chief to have AL supplement the contents of the recordings with any other oral evidence.

AL’s evidence under cross-examination was in parts markedly inconsistent. At different points during his cross-examination AL contradicted himself. He said that from where he was on the couch he could not actually see TH at the time when he said she was assaulted. He could not see TH in the kitchen. AL further agreed that he had not actually seen the applicant step on TH’s back. TH was complaining that her stomach was hurting so AL had ‘worked out somehow’ that the applicant must have done that, but he ‘didn’t actually see it happen’. AL had no memory of telling police that MJ had kicked TH in the head. His memory was that their grandmother had picked them up the evening before and that she had taken them to the medical centre the following day. It was ‘clear in [his] mind that on the day that [he] went to the medical centre [he was not] at MJ's place at any time on that day’.

Further cross-examined, AL said that on the relevant night he was sitting on the couch when the applicant started ‘kicking’ him. AL said that he went ‘behind the couch to hide’. He remembered going back onto the couch. TH was ‘then in the kitchen’. AL said that he could then ‘see some leg movements’. His mother then came out of the bedroom and told him it was time to go home. AL then gave evidence that he could in fact see TH ‘on the floor’, despite previously having said that he could not see her. Later, AL further changed his evidence to say that the applicant had ‘never hurt [him] in any way’ and had ‘never kicked’ him. Moreover, although it is unnecessary to set out any more of his evidence in any detail, AL was unable to recall a great deal of what he had said in conversations roughly contemporaneous to the alleged offending.

Summary of the applicant’s submissions in this Court

Counsel for the applicant submitted that a combination of eighteen problems within the evidence meant that the jury, acting reasonably, must have had reasonable doubt of the applicant’s guilt of manslaughter.

In summary, the identified problems were:

· first, AL’s evidence was uncertain as to when the assault on TH occurred;

· second, under cross-examination, AL gave evidence that he could not see TH during the alleged fatal assault;

· third, AL would in any event have had a practical difficulty in being able to witness an assault on TH in the kitchen from his position on the couch in the lounge room;

· fourth, AL’s evidence did not account for all of TH’s injuries;

· fifth, much of AL’s evidence surrounding the alleged fatal assault was shown ‘to be demonstrably wrong and inconsistent with the prosecution case’;

· sixth, AL was shown to be inconsistent in his description of many aspects of the assault;

· seventh, there was other evidence which demonstrated that AL had made false allegations against the applicant;

· eighth, the evidence disclosed that at the time of TH’s death, AL was a four year old child with ‘limited rational process’;

· ninth, there was a difficulty in any jury being able to act on AL’s evidence that what he had said in his various VAREs was the ‘truth’;

· tenth, the stomping allegation, upon which the prosecution sought conviction, was not mentioned in nine of AL’s ten VAREs;[14]
[14]See footnote [93] above.

· eleventh, on AL’s account, his mother JL should have been in a position to give some supporting evidence as to the alleged assault on TH;

· twelfth, in a case where the prosecution went to the jury on the basis that it had to be either the applicant or JL who committed the fatal assault, any jury acting reasonably could not be satisfied beyond reasonable doubt of the truth of JL’s denials that she had assaulted her daughter;

· thirteenth, JL admitted that she had some realisation from an early stage that if she admitted assaulting her daughter there was a chance she would be charged with murder;

· fourteenth, given that there was evidence of JL’s previous mistreatment of TH, she was a more likely candidate for having committed the fatal assault than was the applicant;

· fifteenth, any available motive for offending attaching to the applicant applied with equal force to JL;

· sixteenth, as to evidence of unusual demeanour following TH’s death, there was more evidence against JL than against the applicant;

· seventeenth, within minutes of TH’s death, JL had lied about her knowledge of the injuries to TH; and

· eighteenth, there was a real risk that AL’s evidence had been contaminated.

Analysis

Properly analysed, the prosecution case rose or fell on AL’s previous statements. In particular, the prosecution case turned on what AL told Senior Sergeant Anderson (in the presence of others) at the medical centre on the day TH died.

AL was aged four years at the time, and, as Dr Gordon noted, ‘his ability to communicate was fairly limited’. Yet it was AL’s representations to Senior Sergeant Anderson that were the backbone of the prosecution case. As Senior Counsel for the respondent submitted in this Court:

… They did not have to accept all of his evidence. They did not have to correlate all of his evidence, but I accept that in order to convict, they had to act on his evidence, in particular his evidence as he, or it’s not so much his evidence, but his account in particular to Senior Sergeant Dagmar Anderson and others. … [W]ithout that evidence you could not convict because … there is no independent evidence that points to him rather than the mother.

On any analysis of the evidence, this concession by Senior Counsel is correct, and, indeed, it was an inescapable aspect of the prosecution case against the applicant.

It was not disputed at trial that — subject to s 137 — AL’s hearsay statements at the medical centre were admissible pursuant to s 66 of the Evidence Act 2008. That said, it might ordinarily be thought quite unusual for a four year old to have sufficient capacity to give evidence — particularly the four year old who can be seen and heard in the first eight VAREs, and whom a treating psychologist thought was not able to communicate and function cognitively at an age-appropriate level — as is required by s 61(1) of the Act.[15] At all events, however, it seems that was not put in issue at the trial. But accepting for the sake of argument that AL did have capacity, that capacity must have been decidedly limited, if for no reasons other than his tender age; his limited ability to communicate; and the fact that, as Dr Gordon made clear, he was not functioning intellectually at a level appropriate to his age.
[15]See also Evidence Act 2008, s 13(1).

There were, in reality, three pillars to the prosecution case: first, the oral representations — and accompanying physical representations — made by AL at the medical centre on 13 May 2005; secondly, the coincidence between AL’s composite oral and physical description of ‘stomping’ — that description being at least partially reliant on the interpretation by Ms Anderson and others as to what AL was endeavouring to convey — and the massive abdominal injuries found post-mortem; and, thirdly, the evidence of JL that she did not cause the fatal injuries.

As we have indicated, the central pillar to the prosecution’s case — AL’s composite description at the medical centre — relied to a significant extent upon the interpretation of Senior Sergeant Anderson and others. Thus, it will be remembered that Ms Anderson’s evidence was that AL told her, ‘MJ step on’ TH, and pointed to the top of his foot. Obviously conveying the difficulties attending the process, Ms Anderson said that she was ‘trying to understand what he was talking about’. She said that AL ‘pushed his right foot down in a sort of a kicking motion’, it being ‘pushing and then it was a stomp down with the foot’. Senior Sergeant Anderson then said that AL told her: ‘MJ being silly. He do like this’. She said that AL ‘again demonstrated pushing his foot down in a sort of a kicking motion’, but by this stage ‘his foot was swinging more than the push down, it was a different motion’.

MWKL, JL’s father, observed the same conversation with — and physical action by — AL, about which Senior Sergeant Anderson testified. His description, it will be remembered, differed from other accounts, in that he described a stomping motion by AL with the right leg, up and down, two or three times, as opposed to a single stomp. DL, JL’s brother, gave a version whereby AL ‘was sitting on the bed and he had his foot and he put his foot down in a stomping motion’; but also said that AL also did a head-butt motion, ‘thrusting the head forward in a quick motion’, and said ‘can’t breathe’. And ALT gave evidence that AL said that the applicant had stepped on TH, and demonstrated several stepping motions.

Quite apart from the fact that drawing a coherent account from AL’s version of events depended to a significant degree upon interpretation — the witnesses seemed content to accept that what AL was attempting to convey was a ‘stomping’ — putting the medical evidence to one side, properly viewed there was scant support for AL’s suggestion that ‘MJ’ had stomped on TH. Thus, for example, the version of events elicited from AL by Quang Tran on Sunday 15 May 2005 was worthy of little weight, it being the product of significant leading and suggestion. In our estimation, very little (if anything) in the VAREs gave any support for AL’s medical centre version, including the eighth, on 18 August 2006, which contained a detailed account. Indeed, it might be thought that the eighth VARE contained a version that was somewhat at odds with the medical centre account in important respects; since, in that version, AL suggested that the applicant hit TH with the bottom of his leg hard ‘on her head’, whilst TH was sitting on a chair (or, perhaps, the couch) in the lounge room (the prosecution case being that the applicant stomped on TH in the kitchen).

By the time AL came to provide his final version in the VARE conducted on 28 January 2015, he was a 14 year old purporting to recount events that had occurred almost a decade earlier, when he was but four years of age. In the meantime, a number of VAREs and other conversations had been conducted with AL — on occasions, the other participants asking leading questions — and he had undergone a long period of therapy. Undoubtedly, in those circumstances, by the time that the trial was conducted, an uncontaminated recollection, and an unvarnished account, had long been lost. And, quite plainly, AL’s version given in the final VARE did not sit comfortably with his earlier accounts or with other objective evidence.

Thus, AL’s version in the final VARE was that the applicant was beating TH up in the kitchen just near the stove (not, as he had previously claimed, in the lounge room whilst TH was sitting in a chair). According to AL, the applicant was ‘kicking’ TH and ‘pushing her around’; and, in apparent contradiction of the contemporaneous and objective medical evidence, AL asserted that TH was ‘bleeding’. Moreover, and significantly, in the final VARE he makes suggestions that, objectively viewed, cannot be true. Thus, for the first time AL asserted that both he and TH ‘got badly injured’, he being ‘quite badly injured’, such that his ‘whole body was sore’ and he ‘couldn’t move properly’. Plainly, up until the final VARE he had not suggested to police that he too was hit, kicked, pulled, pushed or injured. Objectively, AL’s evidence about being badly injured could not be true. Whether this evidence was deliberate deception or innocent delusion it is difficult to say. Whatever the explanation is, however, it has a considerable and adverse effect on AL’s credibility and reliability.

Taking all of AL’s evidence into account — that derived from the VAREs and his evidence at trial — it is difficult to discern any lucid, coherent and consistent narrative which corresponds in any meaningful way to his medical centre account. Prior to the last VARE, the detailed version closest to the medical centre account was in the eighth VARE,[16] in which AL claimed that the applicant hit TH with his leg whilst she was on a chair in the lounge room. That account was a far cry from a description of a stomp to the abdomen. Furthermore, the various versions advanced by AL — quite apart from failing to mention stomping — were riddled with inconsistencies and contradictions, and assertions that objectively could not be true. Some of these inconsistencies and contradictions might have been capable of explanation — particularly given his age, relative immaturity for that age and limited communication abilities — but collectively they inflicted irreparable damage upon the case that the prosecution sought to put forward at trial.
[16]Compare the seventh VARE: see [100] above.

AL’s hearsay account given at the medical centre was — subject to exclusionary rules and applicable discretions — permitted to be given at the time that the applicant’s trial was conducted, given the promulgation of the Evidence Act 2008. (Doubtless, if the applicant had been tried in 2005 or 2006 the evidence would have been excluded as inadmissible hearsay.) Notwithstanding that it may have been admissible, however, it carried with it all of the various limitations and deficiencies that hearsay evidence bears. After the effluxion of a decade, it was impossible in any meaningful way to assess AL’s demeanour at the time he gave his original account. He was not, and could not have been, questioned contemporaneously by anyone concerned to protect the interests of the applicant. And, as we have said, what AL was endeavouring to convey when giving his original account was in any event subject to a degree of interpretation by those present. The weight of the evidence was thus greatly diminished. In our opinion, it was inherently unreliable.

Of course, the prosecution sought to draw some support for the proposition that it was the applicant who caused the fatal injuries from JL’s evidence. It is fair to say, however, that the prosecution did not give JL, or her evidence, a glowing endorsement. By way of example, in her final address to the jury, counsel leading for the prosecution accepted that JL did not tell the truth about important matters:

Now, of course the other piece of evidence that you have, really, against this defence theory [that JL was responsible for the death of TH] is the evidence of [JL] herself. And she gave sworn evidence in that witness box that she did not hurt [TH], either by hurting her thighs or hurting her vagina, or pressing on her abdomen, or any of those things. Now, it’s probably perfectly obvious to you that the prosecution don’t say to you ‘Well, you know, [JL], she’s a complete witness of truth, and you should accept every single thing that she told you in the witness box’. We are certainly not suggesting anything like that at all.
But what we suggest is that there are some things she says which are quite strange, quite bizarre. I mean, things like denying that she was engaged to the accused a week after [TH] died. Strange things like that. But in relation to her denial of causing any injuries to [TH], we suggest that you should absolutely accept her evidence about that. And that there is no other evidence in this case to the contrary.
What we really say to you about [JL] is that she’s not telling the truth when she tells you in this trial that she did not hear [TH] cry out or scream out on 13 May 2005. …

It was, we think, forensically realistic of prosecuting counsel to accept that JL had not told the truth. Our own assessment of JL’s evidence is that she was a highly unsatisfactory, unreliable and untruthful witness, unworthy of belief on critical aspects. Additionally, it will be remembered that AL was frightened of his mother, and told Dr Gordon that he did not want to see her, the reason for his fear of his mother remaining unexplained at trial. And based on some of the other evidence, it might well be concluded that JL had little regard for the welfare of her children.

Thus, on the night of 12 May 2005, JL left her three children in the lounge room of the applicant’s flat — the two year old and four year old to sleep on the couch — whilst she retired to the applicant’s bedroom behind closed doors. When, on JL’s version, TH had fallen off the couch at least once, striking her head on the coffee table, she simply went back to bed. And it is remarkable that when — as Samantha Barry saw — TH was lying on her back on the coffee table with her ‘eyes rolling in the back of her head’, JL did not seek urgent and immediate medical assistance. JL instead took TH to a café — she said TH walked half way in circumstances where the medical evidence was that TH would have been incapable of doing so — and, despite the urgings of others to take her to the medical centre, JL only sought medical assistance for TH when she realised that TH was unresponsive. By the time JL got around to going to seek medical assistance, TH was beyond any help.

It seems from the evidence that JL’s preoccupation was with the applicant, to the detriment of her children. Her shortcomings or delinquency as a mother do not, of course, establish that she inflicted the fatal injuries on her daughter. JL’s behaviour does show, however, that she did not value her daughter’s welfare as highly as a parent ordinarily would. It was a factor relevant to the issue whether there was a reasonable possibility which could not be excluded, that it was JL, and not the applicant, who inflicted the fatal blow (or blows) to TH.

Ultimately, the jury must, we think, have been heavily influenced by the marked coincidence between what AL had said to Senior Sergeant Anderson at the medical clinic, and the cause of TH’s death. Unquestionably, that is where the prosecution case started and ended. Without that evidence the prosecution would not only have failed, it would not even have started. As we have endeavoured to demonstrate, however, that evidence was so flawed, and so lacking in credibility and reliability, that it could not properly have satisfied the jury of the applicant’s guilt.

On the evidence, either the applicant or JL caused the fatal injuries to TH. The jury were only entitled to convict if capable of satisfaction beyond reasonable doubt that JL did not do so, and that the applicant did. On all of the evidence, however, we think it impossible to exclude beyond reasonable doubt the reasonable hypothesis that JL caused the injuries. That does not mean, of course, that JL did inflict the fatal blow or blows to TH. But as we have concluded, the jury could not reasonably have been satisfied beyond reasonable doubt that she did not. In our view, having regard to all of the evidence, the jury must have acquitted.

The verdict is unsafe and unsatisfactory. It must be set aside. A judgment of acquittal should be entered.[17]
[17]Criminal Procedure Act 2009, s 277(1)(b).

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