Goodlad v The State of Western Australia - [2010] WASCA 20

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GOODLAD -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 20

CORAM: McLURE P
PULLIN JA
BLAXELL J

HEARD: 14 DECEMBER 2009

DELIVERED : 12 FEBRUARY 2010

FILE NO/S: CACR 72 of 2009

BETWEEN: DANIEL LESLIE GOODLAD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'BRIEN DCJ
File No  :IND BUN 21 of 2008

Catchwords:

Criminal law - Appeal against conviction - Whether verdicts inconsistent or otherwise unsafe and unsatisfactory - Admissibility of expert evidence - Section 213 of the Criminal Code - Circumstantial evidence

Legislation:

Criminal Code (WA), s 23, s 263

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr E J Myers
Respondent: Mr D Dempster

Solicitors:

Appellant: Edward John Myers
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Chamberlain v The Queen (No 2) (1984) 153 CLR 521
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
Riley v The State of Western Australia [2007] WASCA 22
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171

McLURE P: The appellant seeks leave to appeal and to appeal against his conviction on two counts of aggravated assault causing bodily harm contrary to s 317(1) of the Criminal Code (Code). The complainant was an infant aged 13 months. The appellant, who was aged 19 at the relevant time, was in a relationship with the complainant's mother, Megan Cox.
The appellant was charged with four counts of unlawful assault of the complainant causing bodily harm. Count 1 was alleged to have occurred on a date unknown between 16 March 2007 and 17 August 2007 and the bodily harm was a fracture of the right lower leg. Count 2 was alleged to have occurred on a date unknown between 9 August 2007 and 17 August 2007 and the bodily harm was fractures to the left and right forearm. Count 3 was alleged to have occurred on a date unknown between 9 August 2007 and 17 August 2007 and the bodily harm was fractures to the posterior ribs. Count 4 was alleged to have occurred on a date unknown between 9 August 2007 and 17 August 2007 and the bodily harm was bone contusions to the left scapula (shoulder blade). The appellant was acquitted on counts 1 and 2 and convicted on counts 3 and 4.
The State case was as follows. After the appellant and Ms Cox commenced a relationship in April 2007, Ms Cox began noticing injuries to the complainant. About four to six weeks or two months before the injuries observed in the week commencing Monday 13 August 2007, Ms Cox noticed that something was wrong with the complainant's right leg. She took the complainant to her doctor who thought it might be developmental changes. Ms Cox also noticed at this time that the complainant had more bruises around her head than usual.
On Friday 10 August 2007, the appellant moved in with Ms Cox and the complainant. On Monday 13 August 2007 the complainant stayed the night with her maternal grandmother. Ms Cox did not observe any injuries to the complainant before the complainant was left with her mother or after the complainant was collected the next morning. On Tuesday the appellant was at work. The next day (Wednesday 15 August) the appellant did not go to work. He was feeling unwell and had a doctor's appointment. The appellant was outside alone with the complainant when she started to cry and became very distressed. She had suffered a graze to her forehead and was bleeding from her mouth. Later that day, the appellant, Ms Cox and the complainant travelled by car to Centrelink. The appellant and the complainant remained in the car whilst Ms Cox went inside. When she came out, the appellant had his hand on the complainant's face. The complainant was very distressed. Ms Cox gave her a bottle which the complainant vomited up on the way home. The complainant was shaking when the appellant got her out of the car. Over that Wednesday, bruising developed on the complainant's left eyelid and around the lower sections of her neck.
The appellant did not go to work on Thursday 16 August 2007. When Ms Cox was changing the complainant on Thursday morning, she saw a large gouge down the complainant's back which she had not seen the previous day. The appellant was alone in the house with the complainant later on Thursday when Ms Cox went to collect photographs. The complainant was asleep when Ms Cox left but was awake and screaming on her return about half an hour later.
Over the course of Thursday, more bruises started to develop. They were all over the complainant's face. Ms Cox called her mother who came around at 4.30 pm and took Ms Cox and the complainant to a doctor. After seeing the doctor the complainant was then taken to the emergency department at Bunbury hospital from where she was transferred on Friday 17 August 2007 to Princess Margaret Hospital (PMH) in Perth. Photographs of the complainant were taken on admission and were tendered in evidence.
The complainant was examined at PMH by a paediatric registrar, Dr Tan on 20 August 2007. Dr Tan gave evidence that blood tests were undertaken and bleeding disorders that might explain the bruising were excluded. A skeletal survey was done and it showed that the complainant's bone formation, strength and density were normal. Other investigations undertaken at PMH included X‑rays and a bone scan. Based on a combination of his examination, the photographs, X-rays and bone scan, Dr Tan identified the injuries suffered by the complainant as follows:
1.multiple bruises over both facial cheeks and forehead;
2.abrasion to the centre of the forehead and tip of the nose;
3.bruises to the back of the neck and underneath the chin;
4.healing upper frenulum injury (the frenulum is a piece of tissue that connects the upper lip to the gums of the mouth);
5.multiple bruises over the back and front of the left shoulder;
6.diffuse bone contusions of the left scapula (a bone contusion is a bruise of the bone itself);
7.bone contusions of the posterior part of the 7th and 8th ribs and the posterior lateral part of the 9th through to the 12th ribs on the left side and bone contusions of the posterior part of the 6th through to the 8th ribs on the right side;
8.a lineal abrasion, 2 cm in length, over the middle portion of the back;
9.a fracture of the right ulna and forearm bone (closest to the hand) and bruises over the right forearm;
10.a fracture of the distal part of the left radius bone (closest to the hand);
11.a healing spiral fracture of the right tibia (shin bone).
The State also called Dr Winterton, the medical director of the Child Protection Unit at PMH who had been involved in child protection work for 30 years.
The appellant seeks leave to appeal on five grounds, some of which overlap. He contends that:
(a)the jury's verdicts on counts 3 and 4 are unsafe and unsatisfactory because they are inconsistent with the acquittal on counts 1 and 2 (ground 2);
(b)the opinion evidence of Dr Tan and Dr Winterton was inadmissible in the absence of evidence of the history given to Dr Tan (ground 5);
(c)the trial judge erred in refusing to allow the jury to consider whether the injuries to the complainant might have occurred while the complainant was being restrained in the course of throwing a tantrum (ground 4);
(d)the trial judge erred in failing to identify to the jury the primary or intermediate facts of which they had to be satisfied beyond reasonable doubt (ground 6); and
(e)the verdicts on counts 3 and 4 are otherwise unsafe and unsatisfactory (ground 1).

Inconsistent verdicts

A detailed survey of the relevant High Court authorities on inconsistent verdicts was undertaken by Buss JA in Riley v The State of Western Australia [2007] WASCA 22 [16] ‑ [25]. We are here concerned with a claim of factual inconsistency. Against that background, it is sufficient for present purposes to note the following. First, the appellant has to satisfy the court that the verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion: MacKenzie v The Queen (1996) 190 CLR 348, 366. Secondly, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, the verdicts will not be inconsistent in the relevant sense: MacKenzie (367).
The State case against the appellant was entirely circumstantial. It had to prove that deliberate acts of the appellant caused the complainant's injuries the subject of each count. The task accepted by the State was to exclude accident. At trial, that term was used in both a colloquial and a technical sense. In its technical sense under s 23 of the Code (as it stood at the relevant time) it means (1) an act or omission which occurs independently of the exercise of a person's will and (2) an event which occurs by accident. To fall within the first limb, the act must be a deliberate not an unwilled, act: Ugle v The Queen (2002) 211 CLR 171. The second limb relates to events consequent upon the act: it excludes from criminal responsibility consequences of the act which are unintended, unforeseen and not reasonably foreseeable.
The term 'accident' was also used at trial by the medical experts to include injuries consequent upon an act or omission of the complainant attributable to her age and stage of development. The complainant was in transition from crawling to walking. The doctors drew a distinction between accidental injuries in this colloquial sense and 'inflicted injuries', being injuries directly caused by the deliberate act of a third person.
Dr Tan, a trainee paediatrician, gave evidence about the potential mechanisms for the injuries suffered by the complainant. He was not asked his opinion on the actual causes.
The reconciliation of the verdicts is to be found in the evidence of Dr Winterton. As to the spiral fracture of the tibia the subject of count 1, he described it as a twisting, torsion‑type injury (ts 108). He dated the injury as being probably 14 days old or older. He was asked in examination‑in‑chief whether it was possible for a child to have caused the injury by themselves. He said (ts 109):
The answer is yes, it is possible. You can get what's called toddler fractures which do occur in toddlers and that's when they basically spontaneously occur - I mean, yes, that's probably the best way of putting it ‑ in the normal activities of toddling.
That was possible in relation to this spiral fracture?---It can't be excluded.
When asked about his experience in relation to spiral fractures Dr Winterton protested at the approach of looking at each injury in isolation. He said (ts 109):
I think it's important to understand that ‑ I mean, to pull each injury apart, which is what's currently happening, and give an opinion on each injury is a tad meaningless. It's a bit like going to a beautician and saying, 'I only want my left eyebrow fixed but not the rest.' It's the whole picture that adds up.
Yes. I will ask you about that, Dr Winterton?---So, in essence, as I have said, a spiral fracture of a tibia in a child with nothing else, with a history that may be non concerning, you would probably put down to a toddler's type fracture. On the other hand, a child with other injuries and a spiral fracture, it's like the second eyebrow on the face, it needs doing.
As to count 2, he was asked to describe the action or mechanism that could result in the injuries to the left arm. He said (ts 115):
Well, really, to either forearm it would be in keeping once again with ‑ whether it's possible to have a fall on ‑ a toddler toddling could fall onto their forearm.
When you say a fall?---As in going plop, over, like toddlers do.
From what sort of position would a toddler require to fall to cause a fracture?---Well, I mean, when they're standing and they actually go to fall ‑ to steady themselves, they can actually put out a hand and trying to lessen the fall, so that is possible. But to have both sides involved would be extremely uncommon from an accidental event.
However, although he dated them as less than 10 days old (ts 112) Dr Winterton was unable to say whether the fractures to the left and right arm occurred simultaneously. Dr Winterton's evidence concerning counts 3 and 4 individually is stronger than that relating to counts 1 and 2.
As to the fractures to the ribs the subject of count 3, he said that posterior rib fractures in infants and toddlers almost invariably result from a squeezing action of the chest and that in his experience it was not possible to have such fractures from a fall (ts 119). He was of the opinion that the rib fractures had happened very recently (within a few days) (ts 120).
Dr Winterton was asked whether it was possible to have the scapula injury the subject of count 4, from a fall. He said (ts 115):
Well, I suppose everything is possible, but the reality is that scapula injuries in children or in toddlers just really are exceedingly uncommon from this ‑ in normal daily practice. I mean, the child who was hurled out of the car which was recently on TV, the three-week-old baby, that's the sort of event that you would expect to produce that sort of injury.
He returned to the subject in cross‑examination. He said (ts 138):
Injuries to the scapula in a small child are exceedingly uncommon and they are seen ‑ we see them in inflicted injury and we also see them rarely in high speed motor vehicle accidents and falls from great heights.
Dr Winterton described the mechanism required to cause the scapula injury as squeezing, grabbing, punching or hitting. He said that injury was also less than 10 days old (ts 115). He also gave evidence that multiple or cluster bruising shown on the photographs (such as on the complainant's face, neck, shoulders and back) was highly suggestive of inflicted injury (ts 107, 116, 121, 125).
Dr Winterton was not permitted by the trial judge to state his opinion, based on the injuries as a whole, as to whether some or all of the injuries were deliberately inflicted. The trial judge permitted the following question (ts 133):
Dr Winterton, in your experience have you seen a child, in the absence of a major trauma such as a motor vehicle accident, with as many injuries as this child?---Not that I can recall.
He made the same point in re‑examination. Based on his experience he would not expect a child to exhibit all the injuries suffered by the complainant from normal every day toddling (ts 142).
The appellant's contention is that the State relied on the number and type of injuries as a whole within a relatively short period to compel an inference that all of the injuries were inflicted by deliberate acts of the appellant. In particular, the appellant contended that the State relied on the same evidence to establish all four counts. However, as the analysis of the evidence demonstrates, that is not the case. The evidence of Dr Winterton provides a rational basis for reconciling the guilty and not guilty verdicts. In the end, the compelling inference from the evidence as a whole is that some of the complainant's injuries were deliberately inflicted and the jury concluded that the burden of proof was satisfied in relation to counts 3 and 4.
There is no merit in the appellant's claim that the guilty verdicts on counts 3 and 4 are inconsistent with the acquittals on counts 1 and 2.

Admissibility of medical opinion evidence

Dr Tan had prepared a report that was made available to the appellant's solicitors. The report contains a summary of the complainant's history obtained from Ms Cox. The report also contains Dr Tan's opinion that some of the injuries could have been deliberately inflicted. The report was not tendered in evidence and Dr Tan did not give evidence of his opinion as to the actual cause of any particular injury. However, he was cross‑examined about his report and Dr Tan confirmed that he obtained a history from the complainant's mother. The cross‑examination continued (ts 95 ‑ 96):
In terms of causation, you would rely fairly heavily on the history that you're given, wouldn't you?---Yes.
If the history is inaccurate, your conclusion as to the cause might be inaccurate. Is that right?---Yes.
…
I think part of the reasons that you formed some of your conclusions in relation to these injuries was that some of them seemed to be unexplained. Is that right?---Yes.
On my reading of the evidence given by Dr Tan, none of it is expressly or impliedly dependent on the history provided by the complainant's mother. He was simply asked to identify the possible mechanism of injuries of the type suffered by the complainant. There was no challenge to Dr Tan's evidence of the existence and nature of the injuries to the complainant.
Dr Winterton was also cross‑examined about the history provided by Dr Tan as follows (ts 139):
In this particular case, you relied on the history that Dr Tan provided, didn't you?---Correct.
At least, a good part of your opinion might depend on the history you obtained from Dr Tan?---True.
…
So it would follow then if the history that Dr Tan obtained is not accurate then that would affect the quality of your opinion, wouldn't it?---That's true.
Notwithstanding Dr Winterton's response, I am unable to identify any of his evidence that expressly or impliedly depended upon the history provided to Dr Tan by the complainant's mother. The trial judge kept such tight control over the examination‑in‑chief of the medical experts that it is difficult to conceive of any inadmissible evidence slipping through. In any event, the complainant's mother gave evidence of the history of the injuries to the complainant. The appellant did not identify any material differences between the history recorded in Dr Tan's report and the evidence given by Ms Cox. Ground 5 is without merit.

Reasonable restraint of complainant

The appellant contends that the trial judge erred in refusing to put to the jury a defence under s 263 of the Code. That section provides:
Duty of head of family
It is the duty of every person who, as head of a family, has the charge of a child under the age of 16 years, being a member of his household, to provide the necessaries of life for such child, and he is held to have caused any consequences which result to the life or health of the child by reason of any omission to perform that duty whether the child is helpless or not.
There was evidence that the complainant would on occasions throw tantrums. This evidence was addressed by the trial judge in the context of her directions on defence of accident in s 23 of the Code (ts 222 ‑ 223). The trial judge gave directions on both limbs of that defence (ts 217 ‑ 218). However, the appellant's counsel submitted that, the trial judge should have put to the jury a defence under s 263 of the Code that:
(a)the appellant as a de facto parent had a duty for the care of the complainant that required him to use reasonable force to restrain the complainant when she was throwing a tantrum and likely to hurt herself; and
(b)if the complainant suffered the rib fractures and bone contusions to the scapula the subject of counts 3 and 4 whilst being restrained by the appellant then the force used by the appellant was either authorised, justified or excused under s 263.
My preliminary view is that s 263 is not a defence to an unlawful act but imposes a positive duty, the failure to comply with which gives rise to an offence. However, it is unnecessary to determine that matter because there is no evidentiary foundation for a claim that the appellant inflicted the injuries the subject of the charges in the course of the complainant having a tantrum nor that he acted (involuntarily or otherwise) to prevent her from hurting herself.

The complainant's mother gave evidence that she threw tantrums during which she would bang her head on the floor. She said (ts 52):
Even given the fact that she was only 13 months, she could be a bit difficult to restrain when she threw herself around in tantrums, wouldn't she?---Yes. I would generally leave her on the floor and let her get it out of her system.
In cross‑examination on the incident on Wednesday 15 August when the complainant grazed her forehead, Ms Cox said (ts 53):
[The appellant] was freaking out because [the complainant] had hurt himself (sic) is that the case?---[The complainant] was throwing herself about. I asked [the appellant] to stop holding her and to put her on the lounge, but she persisted with misbehaving, so I told him to put her on the ground so she wouldn't hurt herself. This is when she apparently banged her head on the ground and created the graze.
That wasn't unusual, given she was throwing a tantrum, was it?---She'd never done that sort of injury to herself before in that action.
That's when ‑ you say you have seen her throwing a tantrum. She had never bruised her head before?---She'd bruise but she'd never cut her head open like that and she had been outside in those surroundings.
The appellant did not give evidence. However two video‑recorded interviews of the appellant conducted by police were tendered in evidence. In the first interview the appellant was asked about this event on Wednesday. The evidence is as follows (VROI1 25):
Q.All right. Now, we've been told that on Wednesday you were out the back with [the complainant], and something happened.
A.Yes. Err. Megan was in the, um, laundry room. She put [the complainant] on my lap and Megan actually tells me now and then if she screams and cries too much to put her on the ground, let her walk up towards the door and maybe open the door for her. As I put her down she, um, started to cry, and then she actually banged her head into the concrete itself. So I stood her up against the, um, lounge at the back.
Q.Yeah.
A.And she just started rubbing her face into the lounge and she actually cut her top lip, um, some time during the week and it started bleeding.
The appellant said he was outside where there is a table, chairs and two lounges. Megan was in the laundry. The interview continues (VROI1 26):
Q.You've had [the complainant] on your lap?
A.Yeah.
Q.All right. So when ‑ was this on Wednesday on your day off?
A.Yeah.
Q.What time?
A.Er, it'd have to be round between 10 and 12 o'clock. …
Q.So you put her ‑ how did you put her down?
A.I put her down (indistinct) the top with her arms over.
Q.Yeah.
A.Just slid my hand underneath her lower ‑ ‑ ‑
Q.Yeah.
A. ‑ ‑ ‑ (indistinct) put her down gently.
Q.Was she laying on the ground, or sitting---
A.She - she put all fours on the, um, ground.
Q.Yeah.
A.And then she got both her arms and legs on the ground and she took herself off balance and hit her head onto the concrete at one stage, cos she got put down, she stood there, started to cry, and then she dropped herself.
Later that day the appellant in the company of police officers attended at the house he had shared with Ms Cox. The subject of the events of Wednesday were re‑addressed. The appellant explained (VROI2 4):
As Megan was doing the laundry I was sitting down here and she brought [the complainant] out to me and sat on my lap. Um, scrapping on her back was from my other belt buckle um, as [the complainant] started to play up, picked her up and put her down as she was put down she played up a bit more and just dropped to the ground and banged her head. So I picked her up leaned her up against this, waited for Megan to finish what she was doing and that's basically what it was from there.
The video of this interview has the appellant demonstrating what he did. There is nothing in that demonstration (or the other evidence relied on by the appellant) which provides an evidentiary foundation for a claim that the appellant may have inflicted a squeezing type injury whilst the complainant was having a tantrum and that such an injury was inflicted in order to protect the complainant from injury. Moreover, in his record of interview with police, the appellant discusses a number of possible ways the complainant may have been injured. At no stage did he raise as a possibility this factual scenario.

Intermediate facts

The appellant contends in this ground of appeal that the trial judge's direction was inadequate because she failed to outline to the jury 'the primary facts and/or intermediate facts with respect to each count upon which the jury should be satisfied if they were to convict the appellant on that count'.
I infer the appellant's submission to be that there were indispensible intermediate steps in the reasoning process towards an inference of guilt on each count that had to be established beyond reasonable doubt: Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 575; Shepherd v The Queen (1990) 170 CLR 573, 576. Where circumstantial evidence is relied on, there is a distinction between cases where there are intermediate facts which constitute an indispensible link in a chain of reasoning and cases in which the circumstances can be likened to strands in a cable: Shepherd (Dawson J, 579). In essence, this ground is another manifestation of the appellant's contention that the State case was dependent on proving that all the complainant's injuries were deliberately inflicted. That proposition has already been rejected. Otherwise, the appellant's counsel was unable to identify any intermediate fact or facts which constituted indispensible links in a chain of reasoning towards an inference of guilt. I am unable to identify any. This ground is without merit.

Unsafe and unsatisfactory

The appellant contends the guilty verdicts are unsafe and unsatisfactory. The content and application of the relevant test remains that identified in the majority judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487:
[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (493 ‑ 494).
Where as in this case the prosecution relies upon circumstantial evidence, guilt must be the only reasonable and rational inference that could be drawn from the circumstances: Plomp v The Queen (1963) 110 CLR 234, 243; Shepherd, 578. However, circumstantial evidence must not be considered on a piecemeal basis but be evaluated in its entirety: R v Hillier (2007) 228 CLR 618. All of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: Hillier [46].
This ground as formulated overlaps with ground 2 (inconsistency), ground 5 (admissibility of medical opinion) and ground 6 (direction on intermediate facts) all of which have been dismissed. I have already

referred to the evidence relating to whether the injuries were non‑accidentally inflicted. The only remaining issue is whether it was the appellant who inflicted them. The injuries suffered by the complainant increased in frequency and severity after the commencement of the appellant's relationship with Ms Cox and particularly so after the appellant had commenced living with Ms Cox and the complainant. The appellant had the opportunity to inflict the injuries. It was not seriously suggested that anyone else with the opportunity had deliberately inflicted the injuries. In his video record of interview, the appellant admitted he had a problem with loud noises around his ears which caused him to get really angry and which required him to calm down (VROI1 31 ‑ 32, 59 ‑ 60, 64). On one occasion the complainant screamed in the appellant's ear causing him to freak out and he put her down and raced into his bedroom crying (VROI1 59 ‑ 60). The appellant also gave examples of occasions when he had gone to sleep and woke up feeling blurry, hazy or foggy and a bit agitated (VROI1 35 ‑ 36, 44 ‑ 48, 57 ‑ 58, 64) at which time he acknowledged the possibility that he might have hurt the complainant. It is apparent from the video record of interview that the appellant was having difficulties coping with, and was stressed by, living with the complainant. The appellant's admissions tend to rebut the defence evidence from the appellant's friend, sister‑in-law and mother concerning his dealings with children.

Based on a review of all the evidence, I am satisfied that it was open to the jury as a matter of fact to conclude that the only reasonable and rational inference that could be drawn from all the circumstances established by the evidence is that the injuries the subject of counts 3 and 4 were inflicted by deliberate acts of the appellant, the consequences of which were reasonably foreseeable.

Conclusion

I would refuse leave to appeal and dismiss the appeal.
PULLIN JA: I agree with McLure P.
BLAXELL J: I agree with McLure P.