Harvey v The King
[2023] VSCA 219
•12 September 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0095 |
| JESSE HARVEY | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | EMERTON P, PRIEST and KENNEDY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 July 2023 |
| DATE OF JUDGMENT: | 12 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 219 |
| JUDGMENT APPEALED FROM: | DPP v Harvey (County Court of Victoria, Judge Meredith, 26 March 2019) |
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CRIMINAL LAW – Appeal – Conviction – Recklessly causing serious injury – Whether jury verdict unsafe, unsatisfactory or unsupported by evidence – Where victim seven-week-old infant – Where Crown alleged serious injury the result of head trauma inflicted by applicant – Whether jury could exclude possibility injury caused by prior unidentified episode of trauma or underlying medical conditions – Whether jury could exclude possibility injury caused by unknown cause – Verdict open to jury – Extension of time to file notice of application for leave to appeal refused.
M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123, applied.
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| Counsel | |||
| Applicant: | Mr R Edney with Ms V Drago | ||
| Respondent: | Mr J Lewis with Mr T Bourbon | ||
Solicitors | |||
| Applicant: | Doogue + George Defence Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TABLE OF CONTENTS
Introduction
Background
The events of 14 to 19 April 2017
The applicant’s police interview
The evidence at trial
Dr Crook
Dr Tully
Catherine Scott
Peter Scott
Closing addresses at trial
Ground 6 — verdict unsafe, unsatisfactory or cannot be supported
Applicant’s submissions
Respondent’s submissions
Discussion
Conclusion
EMERTON P
PRIEST JA
KENNEDY JA:
Introduction
On 26 March 2019, following a trial by jury, the applicant was found guilty of one count of recklessly causing serious injury. The victim, Casey Harvey, was his son. Casey was seven weeks’ old when he sustained the serious injury.
On 19 April 2017, Casey presented to the Ballarat Base Hospital. A CT scan revealed multiple areas of brain haemorrhage. Casey was later found to have the following injuries:
(a)subdural and subarachnoid brain haemorrhages;
(b)swelling of the brain;
(c)diffuse axonal injury (‘DAI’) (that is, nerve damage throughout the brain);
(d)tearing and swelling of the posterior ligaments in the high ridges of the spine around the C3 vertebra area; and
(e)extensive retinal haemorrhages.
At trial, a forensic paediatrician, Dr Joanna Tully, opined that these injuries were caused by forceful shaking, with or without associated impact. Casey survived the injuries. However, his prognosis is poor and it is likely he will be severely disabled and fully dependent on his carers for all his daily activities for the rest of his life.
The Crown case was that the applicant shook Casey, causing his injuries, on 19 April 2017, shortly before his admission to Ballarat Base Hospital later that day.
At trial, the defence did not dispute that Casey’s injuries were caused by shaking. The defence was that it was not possible to exclude as a reasonable possibility that another person shook Casey, most likely the applicant’s brother, Peter Scott.
The applicant now seeks an extension of time within which to file a notice of application for leave to appeal. He initially proposed six grounds of appeal against conviction, but abandoned all proposed grounds except one. His remaining ground is as follows:
The verdict is unsafe and unsatisfactory or cannot be supported having regard to the evidence
PARTICULARS
The prosecution could not, and did not, exclude all reasonable possibilities consistent with innocence that the ‘injuries’ suffered by [Casey] were not attributable to a:
(i) prior unidentified episode of trauma; or
(ii) underlying medical condition/s; or
(iii) unknown cause/s
We would refuse the application for an extension of time. For the reasons that follow, the proposed ground of appeal is bound to fail.
Background
At the time of Casey’s birth, the applicant was in a relationship with Casey’s mother in South Australia. Casey’s mother had two other children already. Shortly after Casey was born, the applicant and Casey’s mother separated and the applicant assumed full custody of Casey. The applicant and Casey went to live with the applicant’s mother, Catherine Scott, in rural South Australia. On 14 April 2017, they moved to Ballarat to be near extended family. At the time that Casey sustained the injuries, the applicant, his mother and Casey were living in a house in Ballarat with the applicant’s brother, Peter.
The events of 14 to 19 April 2017
On 14 April 2017, Casey was admitted to Ballarat Base Hospital presenting with irritability, fever, poor feeding and a single vomit. He was noted to have a loud systolic heart murmur. A cerebrospinal fluid report indicated the presence of blood and consideration was given to performing a CT scan of Casey’s brain to investigate the possibility of an intracranial haemorrhage. However, no scan was performed, as Casey improved. Casey was discharged from hospital on 17 April 2017.
We shall refer to this as the ‘first hospital admission’.
At the time of discharge from the first hospital admission, Casey was reported to be interacting and feeding well.
However, Casey was again admitted to Ballarat Base Hospital at approximately 1 pm on 19 April 2017. Dr Heather Crook, a consultant in the Emergency Department, was asked to examine Casey. She noted the following:
(a)Casey was flat and not responding very much.
(b)Casey had a divergent gaze. This suggested he had a fairly serious condition.
(c)Casey was not breathing very well.
A CT scan revealed subarachnoid haemorrhages and ‘acute on chronic’ subdural haemorrhages.
Casey was transferred to the Royal Children’s Hospital. Further investigation revealed that Casey had sustained the injuries detailed in [2] above.
The applicant’s police interview
Police interviewed the applicant on 20 April 2017. The applicant gave the following account of events:
(a)From the time of discharge from the first hospital admission until approximately 2:30 am on 19 April 2017, Casey was ‘good’.
(b)At approximately 2:30 am on 19 April 2017, Casey woke up screaming for his bottle. The applicant gave Casey his dummy.
(c)The applicant went to make a bottle for Casey. When he returned with the bottle, Casey was asleep, which was not normal. The applicant tried to wake Casey up by touching Casey’s lips with the bottle, but Casey did not respond. The applicant thought Casey was asleep and left him.
(d)The applicant woke at approximately 10:30 am. Casey was lying unresponsive, staring into space with his arms in the air. The applicant thought Casey was having a seizure. Casey’s limbs started shaking, then stopped for a minute. Casey’s breathing at this point was not normal. He was groaning a little bit.
(e)The applicant woke up his mother, Catherine Scott. Ms Scott told the applicant to call his sister. The applicant’s sister advised him to take Casey straight to hospital. At ‘probably’ 12 pm, the applicant called a taxi. It took 10 or 15 minutes to arrive. It took them directly to the hospital.
The applicant said that Casey had been keeping his bottles down the previous few days, though he had vomited up perhaps one or two. Before that, Casey had not been keeping many bottles down at all.
The applicant described Peter Scott as a good uncle to Casey. He initially said he did not see Mr Scott on 19 April 2017, but then later said he saw Mr Scott up at ‘[p]robably’ 2 am or 3 am that morning.
The applicant was charged with one count of recklessly causing serious injury and, in the alternative, one charge of negligently causing serious injury. He pleaded not guilty.
The evidence at trial
Dr Crook, Dr Tully, Catherine Scott and Peter Scott (among others) gave evidence at trial.
Dr Crook
Dr Crook gave evidence about Casey’s presentation on the first hospital admission. She agreed that the conditions identified on that occasion — including irritability, poor feeding, recent vomiting, blood in the cerebrospinal fluid, elevated levels of protein in the cerebrospinal fluid, low haemoglobin, low haematinic, low red cell count and anaemia — were possibly consistent with brain haemorrhages. However, there were a large number of other, more common, causes of many of these features. In particular, Dr Crook said that blood may have been present in Casy’s cerebrospinal fluid because of a ‘traumatic tap’ — that is, the needle used to obtain the sample may have nicked a blood vessel.
Dr Tully
Dr Tully gave evidence that, on the night of 19 April 2017 and the morning of 20 April 2017, she attended the Royal Children’s Hospital to examine Casey. She had a conversation with the applicant about Casey’s injuries. The applicant gave her an account that was largely consistent with what he said in his record of interview, namely:
(a)On 19 April 2017, Casey was in his care. Casey woke at 2:30 am, as he normally does, crying for a feed.
(b)He prepared a bottle, but Casey had gone back to sleep, which was unusual for him.
(c)He went back to sleep and did not wake until 10 am. Something appeared to be wrong with Casey. Casey appeared pale, and was staring straight ahead of him with his hands in front of his face. Casey did not appear to be responsive when he picked him up and spoke to him.
(d)He found Ms Scott. She agreed that something was wrong with Casey. He then observed that Casey was having jerking movements which he interpreted to be seizures.
Dr Tully gave evidence that when she saw Casey in intensive care very early on the morning of 20 April 2017, she was aware of brain swelling and bleeding in and around the brain. Later, she became aware that Casey had bleeding in the back of both eyes, injury or damage to the ligaments of his neck, and bleeding around his spinal cord.
Based on the combination of these features, Dr Tully opined that Casey had suffered inflicted head trauma. She explained how shaking, with or without associated impact, can cause this combination of features. It was her opinion that the trauma took place after 2:30 am on 19 April 2017, because Casey was apparently well before that time.
Dr Tully gave evidence that a MRI scan that was carried out on Casey was reported by a consultant radiologist as showing very tiny spots of bleeding throughout the brain tissue and that was reported by the radiologist as indicating DAI, which meant that lots of axons had been damaged. When asked how DAI might occur, she said:
It’s thought to occur as a result of what we call shearing forces. Now shearing is really when one part of the body moves against another like this (witness demonstrates) and what that does is as the brain tissue parts — different parts of the brain move against each other, those long axons that are going down through the tissue get torn or damaged.
When asked what causes these shearing injuries, Dr Tully said:
High levels of significant force as a result of trauma.
Dr Tully also gave evidence that Casey was examined by a consultant ophthalmologist and found to have extensive retinal haemorrhages, that is, bleeding into the retina that affected multiple layers of the retina and extended over its entire surface. The importance of retinal haemorrhages for a diagnosis of their cause lay in their pattern, location and distribution.
Dr Tully was examined about the timing of Casey’s injuries. She was shown footage of Casey in the taxi on the way to hospital after midday on 19 April 2017. The footage was paused at 12:46:36 pm and Dr Tully was asked to comment on Casey’s apparent condition at that time. She said:
Okay, bearing in mind what we are seeing is black and white still image and that the assessment of an infant in terms of how well they are relies on, with their dynamic observation of their colour, their tone, so how well they are able to hold themselves, their breathing, their sounds — all those sort of things is how you assess the young infant to who you are concerned about. So given the limits of what I’m seeing, a still image in black and white, it appears obviously that Casey’s eyes are open and it’s difficult to tell whether he’s focussing on an object or not. He is able to hold his head up to an extent that would be expected for a seven-week-old infant. He appears to have a reasonable amount of tone in his body, in that he’s not just fallen sideways. So on the basis, given the limits of that image, he does not appear as unwell as I would expect him to.
When the footage was paused at 12:47:02 pm, Dr Tully commented that Casey appeared to ‘slump to one side, his eyes shut and he appears to [be] becoming more floppy’.
Having been shown the footage, Dr Tully said:
[A]t the beginning [Casey] appears to be able to maintain his head control, he appears to be able to sit supported appropriately for a seven-week-old baby and has his eyes open, suggestion possibly his fists were clenched … over the course of that recording there’s the suggestion that his tone may start to alter, he starts to seem to be a little bit more floppy, doesn’t appear interested in the bottle.
When asked if the footage altered in any way the evidence she had already given, Dr Tully said she could still say with certainty that the episode of trauma that was responsible for Casey’s condition occurred after 2:30 am on 19 April 2017. Babies with DAI and severe cranial injury become unwell quite quickly. She said that the footage of Casey looking reasonably well, then obviously deteriorating over the next 10 minutes suggested to her that it was ‘possibly more likely’ that the trauma occurred closer in time to Casey getting into the taxi.
Dr Tully was examined about the relationship between Casey’s condition on the first hospital admission and the features that were present during his second hospital admission. When asked if notes from the Ballarat Base Hospital from 14 April 2017 to 17 April 2017 (the first hospital admission) assisted her in her diagnosis of what happened on 19 April 2017, Dr Tully said:
No, probably not. … I need to look at that admission very, very carefully, and I need to be aware of the issues around that admission but in terms of the findings that Casey had on the 19th, that is a separate thing from what occurred between the 14th and 17th April.
Catherine Scott
Ms Scott gave evidence that, when Casey returned home from the first hospital admission, he was ‘a bit cranky’ because he had been immunised, but was ‘fine’ aside from that. She said that, on the morning of 19 April 2017, the applicant came into her room and told her there was something wrong with Casey. She saw that Casey was having a fit, so she and the applicant took him straight to hospital.
When asked if the taxi footage depicting Casey being picked up at 12:46 pm, just after lunch, fitted in with her timeframe, Ms Scott agreed that it did.
Ms Scott denied shaking Casey.
Peter Scott
In his evidence, Peter Scott described Casey as ‘[n]ormal little Casey’ on 17 and 18 April 2017.
In cross-examination, counsel for the applicant put to him that he went into Casey’s room at 2:30 am on 19 April 2017 while the applicant was in the kitchen cleaning the bottles and getting the milk ready, picked Casey up and shook him. Peter Scott responded:
I suggest that that is a load of bullshit that just come out of your mouth.
When it was then put to him that if it wasn’t at 2:30 in the morning then it may have been at some other time, Peter Scott responded succinctly:
No.
And:
No, it didn’t happen.
Closing addresses at trial
In closing, counsel for the prosecution described Casey’s injuries and asked the jury to accept Dr Tully’s evidence in its entirety. He submitted that the applicant lied in his police interview, pointing to the fact that, if the applicant woke as he said at 10 am or 10:30 am, and the taxi arrived to pick Casey up at 12:46 pm, then it took two hours for the applicant to call the taxi.
Counsel for the prosecution pointed to Dr Tully’s evidence that it was more likely that the injury was inflicted closer to the time that Casey was put in the taxi[1] and that the only possible cause of Casey’s injuries was shaking. He submitted that the only person who had the opportunity to shake Casey was the applicant.
[1]See above [30].
Counsel for the applicant submitted that there was another reasonable view of the facts consistent with the applicant’s innocence, namely, that Peter Scott had shaken Casey. Counsel said as follows:
I suggest on the evidence [the applicant] is up, he’s not asleep as suggested by my learned friend. He goes to attend the baby, puts the dummy in his mouth. He goes to the kitchen and prepares the bottle. In that time I suggest to you there is ample time for an injury of this type to take place by his brother, Peter. [The applicant] returns, he finds [Casey] silent, he goes to sleep, that is [the applicant]. Of course a reasonable view of the facts as outlined by my learned friend as he contends, of course that’s a reasonable view. However, I suggest to you the prosecution is unable to disprove the reasonable possibility [that] Peter committed the offence beyond reasonable doubt.
I will just repeat that. I suggest to you the prosecution is unable to disprove the reasonable possibility Peter committed the offence beyond reasonable doubt. That is essentially the defence case, a reasonable explanation of the circumstances consistent with the innocence of the accused.
Counsel for the applicant did not challenge Dr Tully’s evidence that the cause of Casey’s injuries was inflicted head trauma:
The injury as the doctor has posited, as the doctor has given evidence, is how the evidence is. That’s how the injury is caused. I’ll return to that but you will recall that I spent a lot of time trying to work out some other way that it might have happened in conjunction with an earlier injury. Well, it just came to naught when I put those propositions to her. I was going to try to move the timing but it didn’t work. It wasn’t what I anticipated, it just didn’t work. But the timing issue has changed via something else, which happened to be the taxi ride.
So all my efforts in relation to the timing came to naught in relation to the earlier injury …
Counsel returned to the issue of timing before he concluded his address:
I’m not really relying on the timing of it. … My version of the timing, the problem that I was trying to resolve just didn’t work but the prosecution came across another problem with timing with the taxi which might have made the injury a bit later on but that’s for the prosecution’s case.
Ground 6 — verdict unsafe, unsatisfactory or cannot be supported
Applicant’s submissions
Despite the way in which defence counsel cross-examined Peter Scott and put the defence case to the jury in closing, the applicant now submits that it is not possible to exclude two other reasonable hypotheses consistent with his innocence, each of which involves a challenge to the medical opinion of Dr Tully and the diagnosis of inflicted head trauma.
The first hypothesis is that Casey experienced a previous, unidentified episode of trauma, and/or had underlying medical conditions. In support, the applicant points to the features identified on the first hospital admission that Dr Crook agreed might be consistent with a brain haemorrhage.[2] He also points to the finding from the CT scan on 19 April 2017 of ‘acute on chronic subdural haemorrhages’.[3] He submits that this is evidence of a link between Casey’s two admissions to hospital, contrary to Dr Tully’s evidence that the first hospital admission was not relevant to the second hospital admission.
[2]See above [20].
[3]Emphasis altered. See above [13].
The applicant also points to statements in his police interview that Casey had not been keeping bottles down in the days prior to 19 April 2017 and that it was unusual for Casey to fall asleep before he had had his bottle as he did at 2:30 am on 19 April 2017.[4] The applicant contends that this suggests that Casey was already unwell on the morning of 19 April 2017.
[4]See above [15(c)], [16], [21(b)].
Furthermore, according to the applicant, Casey had a number of serious pre-existing medical conditions: infection, anaemia and serious cardiomyopathy. In addition, he says, the possibility of genetic abnormalities was not properly investigated.
The applicant contends that he did not fully abandon his submissions at trial with respect to the timing of Casey’s condition.
The applicant argues that Dr Tully’s evidence that the DAI was caused by some traumatic and catastrophic event is ‘radically inconsistent’ with Dr Tully’s own observation that, in the taxi footage, Casey did not appear to be as unwell as she expected.[5] According to the applicant, Dr Tully was forced to conclude that it was ‘possibly more likely’ that the trauma occurred closer in time to Casey being put in the taxi to go to hospital.[6] However, this is inconsistent with other known facts: (a) the period of time taken by the applicant and his mother to realise that Casey was unwell and get into a taxi to go to hospital; and (b) the fact that there was no evidence at all that the applicant shook Casey between 10 am and 12:46 pm — despite the presence of the applicant’s mother at home.
[5]See above [27].
[6]See above [30].
In oral submissions before us, counsel for the applicant put the argument like this:
If [the applicant] had committed this offence, according to Dr Tully, it would’ve had to have occurred sometime between 10.30 and 12.46, and probably closer to 12.46 because her evidence was clear in the sense that that type of injury effectively prevents any significant brain activity occurring. What happened here, of course, is that CCTV footage showed something very different. It showed a baby with its eyes open sitting up with [the applicant] in the car. There’s no evidence from the mother that [the applicant], in that intervening period, assaulted, shook or did anything of that nature.
In our submission, that is part of the reason why this ground and this conviction gets into the unsafe area, because what happens is that because of that timing issue — and what Dr Tully would expect to happen did not happen. So it raises other possibilities as to when the injury would’ve occurred independent of 19 April 2017, which was the Crown case.
So in our submission, it is a most significant matter, this change of position by Dr Tully about that, because it undermines her original opinion in a significant way given how much weight she placed upon the DAI causing almost immediate collapse in the child. So in our submission, that is of great importance in the case …
The second hypothesis advanced by the applicant is that Casey’s condition was the result of unknown causes. He submits that it was not possible for the prosecution to exclude unknown causes in this case, as the diagnosis of inflicted head injury is exclusionary and could only exclude that which was known to medicine.[7] The applicant accepts that this hypothesis was not pressed at trial:
I don’t abandon unknown causes, and we note that it wasn’t pressed below, but in terms of your Honours’ task here considering the ground, we say that certainly those unknown causes cannot be excluded. But I accept that it wasn’t something which was pressed below, if I can put it in those ways, in that sense.
Respondent’s submissions
[7]Citing R v Cannings [2004] 1 WLR 2607; [2004] EWCA Crim 1.
The respondent submits that the applicant’s case at trial was entirely about timing, and not about pre-existing conditions, and that it was well open to the jury to exclude, as a reasonable possibility, that a prior, unidentified episode of trauma caused Casey’s injuries. In this regard, the respondent points to the fact that the applicant, Catherine Scott and Peter Scott observed Casey to be well on 18 April 2017.
The respondent also contends that Dr Tully did not shift her estimate of the timing of the trauma that caused Casey’s injuries. Rather, after viewing the taxi footage, she cautiously added to her opinion about timing, with some significant qualifications (arising from the difficulty of assessing Casey’s condition at that time from the video footage). The respondent further argues that Ms Scott’s evidence is that, on 19 April 2017, she first saw the applicant and Casey only very shortly before they left for hospital. The mere fact she was in the same house as Casey and the applicant did not mean that she would necessarily have been aware if the applicant had shaken Casey.
The respondent submits that it was clearly open to the jury to exclude the possibility that a previous episode of trauma or existing underlying medical conditions caused Casey’s injuries. The respondent points to the following:
(a)Dr Tully gave evidence that her findings with respect to 19 April 2017 were a separate matter from the first hospital admission.
(b)There was no evidence before the jury, nor on appeal, that Casey suffered from a medical condition that might explain his injuries. Dr Tully excluded that as a possibility.
(c)Significant force is required to generate DAI and retinal haemorrhages.
(d)The applicant accepted at trial that Casey had been shaken.
The respondent also contends that it was open to the jury to exclude unknown causes as possibly causative of Casey’s injuries. According the respondent, Dr Tully’s evidence was that forceful shaking caused Casey’s injuries. The applicant did not challenge that opinion at trial.
Discussion
The basis on which the applicant now seeks to appeal his conviction is at odds with the way in which he put his case at trial. He did not assert that Casey had underlying medical conditions, or that Casey’s injuries were the result of unknown causes. In closing submissions at trial, counsel for the applicant also appeared to abandon any suggestion that Casey’s injuries were the product of a previous, unidentified episode of trauma. He conceded that his efforts to move the infliction of the injuries back in time to a day before the first hospital admission had ‘come to naught’. It was squarely put to Peter Scott in cross-examination that he shook Casey and that he did so in the early hours of 19 April 2017. It was open to the jury to reject that hypothesis as a reasonable possibility.
Moreover, based on the evidence of Dr Tully, it was well open to the jury to exclude, as a reasonable possibility, that Casey had an underlying medical condition or that an earlier, unidentified episode of trauma caused Casey’s injuries. Dr Tully gave evidence about the timing of Casey’s injuries as follows:
Look, timing can be difficult with these sorts of injuries. There are a number of ways that babies who sustain inflicted head trauma can become unwell … [but] there’s really one scenario in which you can be really clear about the time that episode of trauma occurred and that’s babies who are very well and suddenly collapse at home and have a cardiac arrest.
She went on:
[W]ith Casey, I think the key here is he has diffuse axonal injury as reported by the radiologist. And … what that indicates is damage, tear and trauma … so a lot of the nerves that are going through the brain tissue. And what we understand about diffuse axonal injury is that babies who sustain trauma to their brains sufficient to cause diffuse axonal injury and then really severe brain swelling and brain damage are not okay after that episode of trauma …
When asked whether she would expect the deterioration to be ‘almost contemporaneous’, Dr Tully said:
Look, I think generally we’d accept that babies who have diffuse axonal injury — it’s a marker of quite significant trauma to the brain tissue. I think it’s generally accepted that infants certainly wouldn’t be normal after that and probably would [become] quite unwell quite quickly. I think that’s accepted.
Dr Tully was asked whether Casey could have been subjected to a previous episode of trauma close in time to the first hospital admission on 14 April 2017. She said that it was possible. She conceded that the blood in the cerebrospinal fluid may have come from an injury to Casey’s brain before or on 14 April 2017. She could not say with any degree of certainty whether the presence of blood was caused by a traumatic spinal tap or an earlier brain injury. However, she said that, on the assumption that an earlier brain injury caused the presence of blood, this did not affect her evidence that the injuries identified on the second admission occurred between 2:30 am and 1 pm on 19 April 2017.
When asked about a 24 hour time-frame for the infliction of the injury and the presentation at the hospital, Dr Tully opined that 24 hours was ‘a bit long’. She said:
I think with diffuse axonal injury … given the history that [Casey] was well at 2.30 am, I don’t think this episode of head trauma could possibly have occurred before that. You are not well if you have diffuse axonal injury and severe brain trauma. So I don’t think 24 hours, I don’t think so, I’m afraid. I think it has to be a tighter timeframe. Casey may well have had a previous episode of head trauma, he may well have done. But that is a separate issue. … The doctors at the hospital said he was well. [He] was discharged. An infant with diffuse axonal injury and severe brain trauma is not discharged from hospital well.
When asked again if it was possible that the ‘timeframe’ was 24 hours, Dr Tully said:
No. I don’t think it’s possible. I don’t think an infant with diffuse axonal injury [and] severe enough brain trauma wakes up at 2.30 crying for a feed having been well in the hours previously when he was put to bed. I really don’t accept that. I don’t think it’s possible. Diffuse axonal injury is a [serious] brain injury and I don’t think an infant would wake up well [and] crying, I just don’t. So I think that the strongest — the most definite I can be about timing is that this occurred — if the information I’ve been given is correct that he woke up well at 2.30 am for his feed, that the episode of trauma has to have occurred after that. Given that the infant had diffuse axonal injury and severe brain trauma, damage and swelling, I think the timeframe is likely to be shorter rather than longer, but I cannot be really definite about that.
We accept that Dr Tully did not shift her estimate of the timing of the trauma that caused Casey’s injuries. Rather, after viewing the taxi footage, and having qualified her answer by reference to the limitations of using the taxi footage to assess Casey’s condition, she said that the trauma may have occurred closer in time to Casey being placed in the taxi. However, Dr Tully did not resile from her view that the trauma was inflicted some time after 2:30 am on 19 April.
Moreover, Dr Tully’s evidence about the effect of diffuse axonal injury also puts paid to the suggestion that the features/injuries identified in Casey set out in [2] above were the result of an injury or underlying medical condition that existed at the time of the first hospital admission. In this context, we note that both Catherine Scott and Peter Scott described Casey as being ‘fine’ or ‘normal’ after the first hospital admission. For his part, the applicant said that Casey was ‘good’ until 2:30 am on 19 April.
There is nothing to be said about ‘unknown causes’. That submission is purely speculative. It ignores the substantial evidence of Dr Tully about the cause of the combination of injuries identified in Casey.
The proposed ground of appeal is not made out. We have carried out our own independent assessment of the evidence, and, in light of Dr Tully’s (and the other) evidence that we have summarised, we are satisfied that it was open to the jury to be satisfied of guilt.[8] The verdict was not unsafe or unsatisfactory.
[8]M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123, 146–7 [43] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
Conclusion
As the proposed ground of appeal has not been made out, the application for an extension of time to file an application for leave to appeal is refused.
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