Hollingsworth v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0212

LUKE HOLLINGSWORTH	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NIALL, KENNEDY JJA AND MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2021
DATE OF JUDGMENT:	17 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 354
JUDGMENT APPEALED FROM:	[2020] VCC 282 (Judge Taft)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one charge of intentionally causing serious injury to six-week old daughter – Evidence admitted of previous episodes of family violence between applicant and child’s mother, a family violence intervention order and associated intervention by Department of Health and Human Services – Whether evidence relevant – Evidence admitted of victim’s older injuries – Applicant gave exculpatory account in record of interview – Whether error in admitting family violence evidence as inadmissible tendency evidence – Whether error in not excluding family violence evidence pursuant to s 137 of the Evidence Act 2008 – Evidence Act 2008, ss 55, 97 and 138 – Whether family violence evidence admissible for context – HML v The Queen (2008) 235 CLR 334, Aleski (a pseudonym) v The Queen [2020] VSCA 124, WFS v The Queen (2011) 33 VR 406, Ritchie (a pseudonym) v The Queen [2019] VSCA 202 – Whether family violence evidence admissible to rebut anticipated defence – Ivanoff v The Queen [2015] VSCA 116 – Extension of time to file notice of application for leave to appeal granted – Leave to appeal granted in respect of grounds concerning admission of family violence evidence, but appeal dismissed – Leave to appeal refused on remaining proposed grounds.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P P Kounnas	Gallant Law
For the Respondent	Mr J C J McWilliams	Office of Public Prosecutions

NIALL JA
KENNEDY JA
MACAULAY AJA:

Introduction

At 6:28 pm on the evening of 10 June 2016, Kelly Morgan[1] took her six-week old daughter, May,[2] by taxi to the local hospital. Upon examination in the emergency department, a doctor observed that some of May’s limbs were making jerky movements, consistent with fitting, and that May maintained an abnormal, fixed downward gaze with minimal interaction with medical staff. A small boggy swelling was identified over the right parietal region of her skull. Significantly, that swelling doubled in size over a matter of hours at the hospital. A paediatrician was called in, as were other specialists. An ultrasound scan revealed significant bleeding in the brain.
[1]‘Kelly Morgan’ is the name for the child victim’s mother. To avoid the identification of the victims of family violence, the names of the victim, the victim’s mother and siblings, and some members of the victim’s household have been anonymised. In the interests of the administration of justice we have not anonymised the name of the offender.
[2]A pseudonym.

Later that evening, medical staff observed bruising beginning to appear on May’s right foot and both of her calves were noticed to be tight. At 3:00 am the next morning, May was airlifted to the Royal Children’s Hospital where she was treated urgently by a number of specialists, including by surgery, for what were regarded as life threatening conditions. Investigations revealed that she had suffered a number of injuries including a fracture to the right parietal bone, tearing of the bridging veins passing from the surface of the brain to the layers closer to the skull, associated bleeding and haematomas in the scalp and throughout the brain, diffuse axonal swelling, spinal cord injury and multiple leg fractures with associated swelling.

A number of these injuries were either acute — that is, believed to have been inflicted within the hours or up to a day prior to May’s admission to hospital — or at least had an acute component or had been exacerbated within that period. Some other injuries, however, were thought to have been of longer standing. Expert forensic opinion later indicated that May’s acute injuries were not accidentally occasioned but were consistent with May having been shaken and blunt force trauma having been applied to her head. There was no witness to these injuries being inflicted.

The applicant, Luke Hollingsworth, is May’s father and was Ms Morgan’s partner. On 21 October 2019, a jury found the applicant guilty of intentionally causing serious injury[3] to May. The applicant also pleaded guilty to a charge of contravening a family violence intervention order.[4] On 18 March 2020, he was sentenced to a total effective sentence of imprisonment for 14 years with a non-parole period of 11 years. He has applied for leave to appeal his conviction on the charge of intentionally causing serious injury.
[3]Pursuant to s 16 of the Crimes Act 1958 (maximum 20 years’ imprisonment).
[4]Pursuant to s 123(2) of the Family Violence Protection Act 2008 (maximum 2 years’ imprisonment).

In the days leading up to May’s admission to hospital, the house in the town in which she was living was occupied by four adults and four children: Ms Morgan and the applicant, their two biological children (that is, May and an older sister) and two more female children from Ms Morgan’s other relationships, together with Ms Morgan’s adult brother, Arnold Morgan-Wade,[5] and his partner, Rebecca Burke.[6]
[5]A pseudonym.
[6]A pseudonym.

At trial, the jury heard evidence about the volatile relationship between the applicant and Ms Morgan including evidence of some episodes of family violence in the months prior to May’s hospitalisation. Further, the jury heard that the Department of Health and Human Services (‘the Department’) had implemented a ‘safety plan’ requiring Mr Morgan-Wade and Ms Burke to reside at the house to prevent future family violence and to prevent the applicant from returning to the house.

There was no question that May suffered serious injuries. The principal issue at trial was whether it was the applicant who had caused the injuries. The applicant’s defence at trial was that the injuries to May could have been caused by any person within the household, each of whom had the opportunity at various times during the course of 10 June 2016 to inflict the injuries upon May, focusing most particularly on Ms Morgan. If the jury was satisfied (as they were) that the applicant had caused the injuries, the alternative charge on the indictment required the jury to consider whether the applicant had caused the injuries intentionally or recklessly. The jury found that the applicant had caused them intentionally. Whether intention was a seriously contestable issue is a matter raised on this application for leave to appeal.

In his application for leave to appeal, the applicant proposed six grounds of appeal although three of them may be grouped around the one topic. The first three proposed grounds concern the admission and use of the evidence of family violence which the applicant contended amounted to an error or irregularity at trial. By these proposed grounds, he contended that this evidence was irrelevant, its probative value was substantially outweighed by its prejudicial effect, it invited impermissible tendency reasoning, and it was so characterised by the prosecution in final address.

By way of his additional grounds, the applicant sought to argue that the absence of evidence about who inflicted May’s injuries sustained before 10 June 2016 left open possibilities consistent with his innocence which no reasonable jury could have eliminated. Finally, he proposed to argue that the conviction was unsafe and unreasonable (with a particular focus on the element of intention) and that, because of an accumulation of errors, a substantial miscarriage of justice has occurred.

The applicant sought to file his application for leave to appeal on 24 September 2020, which is approximately five and a half months after the time within which such an application may be made. Accordingly, the applicant has also applied for an extension of the time under s 313 of the Criminal Procedure Act 2009 within which to file his application for leave to appeal. We determine the application for extension of time in the course of these reasons for decision.

Background[7]

[7]The details set out under ‘Background’ are drawn substantially from the sentencing remarks of Judge Taft in Reasons for Sentence published 18 March 2020, DPP v LH [2020] VCC 282.

The applicant and Ms Morgan first formed a relationship in 2009. Between then and 2016 their relationship had been on and off. In 2010, they moved to their home from another regional place. From early in the piece, police attended their home on a number of occasions to deal with family violence issues, which included 12 family violence incidents of which eight involved the applicant and Ms Morgan. The Department also became involved with the family soon after their arrival in the town.

Both the applicant and Ms Morgan were regular users of crystal methamphetamine (‘ice’). The relationship was highly volatile and marked with a high level of dysfunction.

The 18 October 2015 incident

On 18 October 2015, police attended at the home after a report that the applicant had chased Ms Morgan through the house while holding a knife and a kettle full of boiling water.[8] The applicant denied those allegations, Ms Morgan made no statement of complaint and no charges were laid. However, police were concerned about the safety of Ms Morgan and her then three children and applied for a Family Violence Intervention Order (‘IVO’) for the family’s protection. On 28 October 2015, the local Magistrates’ Court issued an IVO the terms of which prohibited the applicant from committing any family violence against Ms Morgan and her three daughters, from approaching within five metres of any of them and from attending within 200 metres of any place where they lived. The IVO was to remain in effect until 8 July 2016. Despite the IVO, and with Ms Morgan’s consent, the applicant continued to regularly reside at the home.
[8]The details concerning the knife and boiling water were not revealed to the jury at the trial: see below at [87].

May was born in April 2016.

The 21 May 2016 incident

On 21 May 2016, another incident occurred at the house. After Ms Morgan fled the house police were called and attended. Ms Morgan alleged that the applicant had threatened her with a knife while she was holding May and that he prevented her attempts to call police by breaking the telephone.[9] Emergency accommodation was arranged for Ms Morgan and her then four daughters,[10] Jessica[11] (aged seven), Clara[12] (aged five), Dianna[13] (aged 13 months) and May (23 days old).
[9]The details concerning the knife and breaking the telephone were not revealed to the jury at the trial: see below at [87].
[10]By the time of trial in 2019 Ms Morgan had a fifth daughter.
[11]A pseudonym.
[12]A pseudonym.
[13]A pseudonym.

As a result, the Department created and implemented a ‘safety plan’ designed to prevent future family violence and to prevent the applicant returning to the home. That plan required Mr Morgan-Wade, aged 22, and Ms Burke, aged 18, to reside at the home with Ms Morgan and her four daughters. Despite the IVO and the safety plan, the applicant continued to stay at the home address most nights. If the police attended, the applicant would hide. Like Ms Morgan and the applicant, Mr Morgan-Wade and Ms Burke were also users of ice on a daily basis. Their presence at the house appeared to be entirely ineffective as a means of ensuring that the applicant did not come into contact with Ms Morgan or the children.

At various times during the morning of 10 June 2016, the four adult occupants were each present at the house. Mr Morgan-Wade and Ms Burke were in and out during the course of the day. At about 2:00 pm Ms Morgan woke the applicant who had been asleep and asked him to mind May while she went out. She left the house with the other three children at around 3:30 pm, returning at about 4:30 pm. During that period Mr Morgan-Wade and Ms Burke were also absent, returning at about 5:00 pm. When Ms Morgan returned at around 4:30 pm, the applicant was asleep on the couch and May was asleep in her bassinet. Not long afterwards, Mr Morgan-Wade and Ms Burke arrived. Some while later, Ms Morgan was changing May’s nappy when, upon her legs being lifted, May cried in pain. Ms Morgan noticed that May’s legs were abnormally tight and swollen. At 6:22 pm a taxi was called, arriving shortly afterwards. Ms Morgan and Ms Burke took May to the hospital. The applicant did not accompany them.

On 11 June 2016, the applicant was arrested by police in connection with the family violence event of 21 May 2016. On 1 July 2016, upon her discharge from the Royal Children’s Hospital, May was placed into foster care.

Record of interview

The applicant was interviewed by police at the Ararat Police Station on 16 August 2016 about the injuries sustained by May. The transcript of the applicant’s record of interview spans 167 pages. In it, the applicant puts forward his defence to the suggestion that he had anything to do with May’s injuries sustained on 10 June 2016. In substance, it was a two-pronged defence: first, to portray Ms Morgan as a violent, aggressive, drug-addled, neglectful and hateful mother who was prone to shake the children and, secondly, to cast himself as a caring and loving model father to all four children. From his record of interview, it was clear that the applicant perceived the probable responsibility for May’s injuries as falling either on himself or Ms Morgan. Thus, he was at pains to pin the responsibility upon her and to give a graphic account as to why that was so.

Accordingly, as to Ms Morgan, a selection of his descriptions about her, as given to police, is as follows:

(a) ‘… she was pretty spontaneous with her anger and her … violence’;

(b) ‘… she started smoking pot, and if she didn’t have the weed then she’d be a fuckin’ mess, a violent mess, a cunt, just a nasty arsehole cunt to anyone and everyone, just a prick’;

(c) [Ms Morgan would] ‘chase me in the kitchen and throw things [at] us and smash things and break things and it was just full on’;

(d) ‘… she hates those children, hates ‘em, hated them. Always hated [Jessica], always hated her, even though she was a good mum to her she always hated that kid, despised her, hated her, did not like her at all’;

(e) ‘… she hated that child ‘cause she would just hurt her, as soon as she fucked up she would hurt her … hit her across the head … Knock her in the walls, give her black eyes and have no remorse, no remorse at all, none’;

(f) [Regarding Ms Morgan’s drug use] ‘… the drug use in itself is horrendous … her being pregnant and, you know, using fucking needles and injecting ice into her arm’;

(g) [About his relationship with Ms Morgan] ‘… I’m in a relationship where you can’t get angry with this person or you have to – you have to say something – that the best … you can and as calmly as you can. … one minute you’re looking at a normal person, then shit, bang … you’re getting things thrown at you, your cups thrown at you … you’re dealing with a – a psychotic monster, yeah’;

(h) ‘I asked her if she was … cheating on me and she denied it … which is a clear lie. … it’s one-way street with this girl … so eventually I just – I gave up and didn’t say nothin’ and just let it go, there was no point … And I got told by people that were going to drug dealers houses that were seeing her, you know, in there and whatever, performing sexual acts on people for – for drugs … And I would confront her about it but confrontation of that girl never ended well’;

(i) ‘She’d be good one minute, she’d be laughing … giggling and be feeling fantastic and the next minute it would be … a war. Shits getting thrown and smashed or somethin’, you know, kids are getting … hurt and it’s all happening. [She is] … shaking ‘em, slapping ‘em across the head, chase after ‘em with scissors and knives. Threaten to cut their ears off, their fingers, their tongues’;

(j) [About shaking the children] ‘… if [Dianna] was crying or [Clara] was crying or somethin’ then always just pick ‘em up and – and shake ‘em … Like, grab ‘em, “this fuckin’ little cunt”, she’d go … enough to shake their heads back and forwards’;

(k) [After May was born] ‘I couldn’t handle violence and I couldn’t handle seeing her the way she was treating them kids. … This – this woman – girl, whoever the hell she is, a monster, she had no care for them kids at all, did not give a fuck about it. Didn’t care if they had nothin’ to eat, didn’t care if they didn’t have clean clothes on. Didn’t give a shit they had nits in their hair … Didn’t care about ‘em, hated ‘em – hated them. I’ve never seen nothin’ like it’;

(l) ‘… but it just got to a point where if any one of those girls cried because they had wind or were hungry or – or something, she’d just turn nasty … Because her time was being interrupted and that kid was crying and I’m not doing whatever job I’m s’posed to be doing sufficient enough to her liking, she’d come and just snatch ‘em and rip ‘em, you know what I mean, snatch, rip, “You fuckin’ little cunt,” like that, like, I’ve never seen ‘em like it’;

(m) ‘… the last time I seen [Ms Morgan] shake either of the kids was the day that an intervention order was put on me and she was put in protective care or some fuckin’ thing. Police come round to the house that day and I witnessed her shake [May] … in the kitchen … I seen her shake [May] that day’;

(n) [Concerning May’s injuries on 10 June 2016] ‘… well, I had no idea at all, none … none … She obviously did because she was the one that fuckin’ shook her but I had no idea’;

(o) [After the swelling was noticed on May, on 10 June 2016] ‘She had to make sure she wasn’t going to the hospital until she made sure she went and got her drugs and had a fuckin’ hit and then she was, you know. So the drugs was first preference which I fuckin’ lost to that, I thought that was ridiculous, that really pissed me off. And as soon as she had her hit, since she got drugs and she had a hit, then bang she was good to go in taxi, was gone, off she went’;

(p) [If Ms Morgan ran out of money] ‘… she’d turn to a monster, turn to a violent rampaging monster’;

(q) [Ms Morgan’s preparation of meals] ‘Never did any of ‘em. Doesn’t know how to cook. … I don’t think she can open a can with a can opener’;

(r) [At the hospital on the night of 10 June 2016] ‘While we’re at the hospital … I’m looking at [Ms Morgan], ‘cause we – I went outside. Because I knew that – because I’d seen her shake her before, right, so I knew that she’d had somethin’ to do with it. Without even having to ask her I knew that she had somethin’ to do with it’;

(s) [After returning from the hospital at night] ‘I went and sat in the – in the kitchen, I sat on a chair and I cried, I just cried. [Ms Morgan] came in and she was ranting and raving; she was ranting and raving and carrying on. She just picked up a cup and fuckin’ lobbed it at me; like, this big cup and just threw it at me head. … yeah, she had the handle bit and it was, like, trying to punch me with it’.

(t) [Asked about a volatile relationship with Ms Morgan] ‘Not between both of us. It’s only been one way’; and

(u) ‘Go and arrest the mother. Go and arrest the mother and do what you have to do there because otherwise she’s gonna fall pregnant again and the same thing’s gonna happen again and again … The mother needs – the mother’s got problems … so go and arrest her, throw in her gaol, do it, so to help that – help those kids’.

Regarding his own character and conduct, the applicant provided the police with these descriptions:

(v) [First time he met Ms Morgan, with Jessica] ‘I’m actually good with kids so I took to it like a duck – a duck to water, no problems for that. First time I met her she was my little girl …’;

(w) [After the birth of Clara] ‘… with [Clara] … I sort of took over a bit more with her, because she was – ‘cause she’s my little girl, she’s my first legitimate little girl. Not that I love my kids any less but I just felt that I was more responsible for – for [Clara] … So I, yeah, did what a father should do. I went to work, I earned a living and I’d come home and – ‘cause [Ms Morgan] was with the kids all day, well, I’d say, “Sit down, have a break, I’ll take over now”, I’d cook up food every night, did a bit of washing, chucking ‘em in the bath or the shower, do a dad – should do’;

(x) [About returning to Ms Morgan after a period of separation] ‘When I set my mind something it’s – it’s gonna be done and I just – I’m relentless … I will not buckle and I will not fault. And those kids clearly need me around. Because the state of the house, and there’s been no food in the cupboards or the fridge was just appalling. So they clearly need their dad and they didn’t want dad to leave, so I took all that in consideration and plodded along and kept doing what I was doing’;

(y) [Counselling Ms Morgan about drug use] ‘And I’d say to her all the time, “well, you can’t be doing that with a – a little baby inside, like, you can’t. You set yourself up for that baby have problems”’;

(z) [Regarding his own drug use] ‘Drug use for me non-existent. None at all, once or once every now and then, like a blue moon sorta thing. I would have a puff and that would be it’. [Asked if that was amphetamines] ‘Yeah. And any other times I had any chard was when that fuckin’ bitch of a thing injected in me sleep, stuck it in me arm while I’m asleep’;

(aa) [Caring for Jessica when she was a baby] ‘I’d hear her as well, I’d get up and help … and change her bum and give her feed and a bit of dad, daughter time and – yeah. She’s not my blood … she’s not my blood daughter … but she’s my little girl. I love that little kid and she’s my – she’s my daughter’;

(bb) [While Ms Morgan was out all night long] ‘So I’m dealing with … a month old baby and … I’m dealing with two other daughters, you know, one that’s got homework and – needs to have the – sit down and teach the time tables or maths or something. Then I’ve got another daughter that’s autistic and – and got ADD, so she, you know will sit for five minutes and do a couple of flashcards with me, but, you know, it’s hard to get her to stop. So I’m trying to get her to colour to keep her still and they’re getting upset or they’re getting happy and they’re squealing and carrying on. Then I’ve got a baby trying to sleep and, you know, she’s having fits and, like, shit just happened and it shouldn’t be happening but lucky … I got some good skills there, so I know what I’m doing or how to deal with it. I think I saved that baby’s life probably a good half a dozen times’;

(cc) ‘I’m the one that – that cooks all the meals, I pack lunches. [Ms Morgan] would help me sometimes packing lunches but I pack lunches for both kids. I would put fuel in the car so that we had, you know, so we’d drive around and I would take them on little excursions … I’d bath ‘em, I’d – I’d shower ‘em, I would clothe them, I would change nappies. And get outside and – and play with ‘em and I would teach them. And I was there for the – for the bullying and the name calling and all the aggression. And I’m teaching ‘em words, I’m teaching ‘em colours. I’m teaching ‘em values, I’m trying to teach ‘em culture heritage stuff about where we come from and, you know, our family bloodlines. And I’m doing all of it, I’m doing the whole lot as well as try and deal with an infant or a baby. And trying to deal with a pregnant person that’s hormonal and a drug fiend and, yeah, it’s pretty tough’;

(dd) ‘Cause I’m pretty just used as a slave – to take care of my kids and that’s basically about it. And I wouldn’t have it any other way, ‘cause I knew when I was looking after ‘em they will get treated properly, so very Luke’;

(ee) [Asked how he reacted with children when stressed] ‘I know where you’re going there, I’m not like that. I don’t act in a way where I’m – where I’m violent towards kids, no worries at all. … whenever I had times where I felt unwell I would get the kids out of the way. … It’s something that I know well because I’ve dealt with this shit my whole life’;

(ff) ‘I don’t hurt babies, I don’t hurt children’; and

(gg) ‘… most of the time I’d just pass out on the couch; be that buggered, I’d just pass out on the couch and a lot of the time, none of the other kids would be next to me but [Dianna]. She’d be cuddled up next to dad, yeah.’ [Asked what the applicant was buggered from] ‘from running around after all the girls, from being here, there and – and everywhere from going to work and coming home and, you know, it’s pretty full on, yeah. It’s just a full-on lifestyle and I was trying – the best way I knew how and how I could … function without complaining. … and you know what it’s like with us blokes, we just … just keep the mouth shut, plod along’.

Evidence at trial

In addition to the record of interview, the prosecution presented other oral and documentary evidence. Some of the documentary evidence enabled the movements of Ms Morgan, Mr Morgan-Wade and Ms Burke on 10 June 2016, at least in part, to be reconstructed. That evidence consisted of records from the local kindergarten where Clara was signed in and signed out, taxi records, bank records, records from a real estate agent, CCTV footage at various shops, and times stamped on receipts for purchases made that day. That evidence enabled the prosecution to submit (without dispute from the applicant) that Ms Morgan, Mr Morgan-Wade and Ms Burke were all absent from the house between 3:30 pm and 4:30 pm on 10 June 2016. There was no dispute that the applicant remained at the house with May during that period.

May’s injuries

Evidence was given by Dr Razick Khan, the emergency registrar on duty when May was presented at the hospital on the evening of 10 June 2016. The substance of his evidence has been outlined above.[14] The prosecution also called a forensic paediatrician, Dr Merryn Redenbach, employed by the Victorian Forensic Paediatric Medical Services in June 2016. Dr Redenbach examined May at the Royal Children’s Hospital at approximately 3:30 pm on Saturday, 11 June 2016. She prepared a report on 23 June 2016 containing her opinion about May’s injuries. At that time, Dr Redenbach had available to her the records of the local hospital in the town relating to May’s admission on 10 June 2016 as well as the records of the Royal Children’s Hospital.
[14]Paragraph [0] above.

At trial, Dr Redenbach presented her opinion to the jury by reference to various anatomical illustrations. In final address, the prosecution provided the jury with a typed summary of Dr Redenbach’s evidence. The summary was not disputed by the applicant. The following description of Dr Redenbach’s opinion is derived from that summary.

Dr Redenbach noted that May had a large subgaleal haemorrhage (that is, a collection of blood under the scalp) which was approximately eight centimetres in diameter. That haemorrhage was likely related to the skull fracture referred to next. Such a haemorrhage was likely to have been caused by blunt force trauma – that is, by May having been dropped or fallen on, or striking, a hard surface. Because it was noted to have doubled in size whilst May was at the local hospital, Dr Redenbach considered that the cause of this haemorrhage was from something that had occurred within hours or potentially a day of May’s presentation to the local hospital. This was therefore noted as an ‘acute’ injury.

May was also found to have a skull fracture of the right parietal bone. Dr Redenbach considered that this injury was the result of blunt force trauma involving considerable impact to the skull bone. Significant force was necessary to produce this injury, such as May’s head striking or being struck by a firm object or surface. As to the likely timing of the infliction of the injury, Dr Redenbach considered it was difficult to establish the timing taken in isolation. But, she explained, looking at all the injuries in combination assisted an understanding of the timing of the skull fracture. In particular, the likely timing of the cause of the haemorrhage over the site of the parietal bone and other haematomas within the brain enabled inferences to be drawn about the timing of the fracture of the parietal bone. However, on the hypothesis that the skull fracture and its (probable) related scalp haemorrhages were caused earlier than 10 June 2016, then the nature of May’s presentation at the local hospital and her rapid deterioration thereafter indicated that a further trauma to the skull had occurred in the minutes or hours before that presentation.

Thirdly, May had subdural haematomas which were a consequence of the tearing of the bridging veins which passed from the surface of the brain to the layers closer to the skull. May had extensive subdural haematomas throughout the brain. Dr Redenbach explained that this type of injury was caused by the shearing-force that occurs when the brain moves in relation to the skull resulting in tearing of the connecting veins. It was not likely to have been associated with a single event such as would have caused the skull fracture, but more likely the majority of it was associated with a shaking event. The evidence concerning its timing was somewhat mixed. Dr Redenbach thought it could have had both a ‘chronic’ and an ‘acute’ component.

Next, May had a diffuse axonal injury (that is a brain injury) constituted by swelling, bruising and bleeding throughout all lobes of the brain. It was described as involving extensive damage. Dr Redenbach said this injury was consistent with a shaking episode and the injury was ‘acute’, occurring within hours to a day before presentation at the hospital.

Next, it was noted that May suffered a spinal cord injury – that is, there was evidence of swelling and reduced diffusion of blood. Again, this was the product of a shaking injury occurring within hours to a day before presentation to the hospital.

In addition, Dr Redenbach noted that investigations revealed the presence of hemosiderin, a pigment or staining in the spinal cord around the brain which occurs when there has been bleeding. The cause of this was unknown and it was suggestive of an older injury that occurred more than two or three weeks before presentation at the hospital. It raised concern about a past episode of head trauma.

Further, May had leg fractures involving at least six sites with associated swelling. This again was consistent with shaking injuries. Because of the rapid onset of swelling which required emergency surgery at the Royal Children’s Hospital to relieve the pressure in the legs, Dr Redenbach considered that these injuries occurred in the hours up to a day prior to May’s presentation at the hospital.

Less definitively, Dr Redenbach reported that there were probable fractures to the ribs, right forearm (wrist) and right third fingertip. Dr Redenbach said to attribute cause to fractures which may or may not in fact be there was a speculative exercise. If in fact there were fractures to the ribs they would have been at least a few weeks old. If there were fractures to the wrist and fingertip, they were probably acute fractures occurring within seven days of the hospital presentation. There was no evidence of healing but neither was there any associated swelling to give a sense of timing.

Overall, Dr Redenbach considered that the nature and severity of the injuries could not be explained as having occurred by accident, the alternative being that they were caused by an abusive episode. Her opinion concerning the timing of May’s injuries was summarised in this passage of her evidence:

[May] had severe complex brain injury with both acute components, i.e., had happened recently, and evidence of older injury. This suggests head trauma on at least two occasions. [May]’s extensive and recent metaphyseal fractures, associated compartment syndrome, and subdural haemorrhages are consistent with injury caused by non-accidental trauma occurring in the hours to days prior to the presentation. Skull fracture with overlying subgaleal haematoma is indicative of blunt force head trauma as a result of [May]’s head striking or being struck by a firm object or surface. The subdural haematomas may also have been caused by or exacerbated by this trauma. The fluctuant appearance and rapid development of the subgaleal haematoma and its timing in relation to [May]’s reported clinical deterioration, suggest that this injury occurred proximately, e.g., minutes to hours prior to her presentation at hospital. However, it is not possible to rule out earlier blunt force head trauma causing the fracture and subgaleal haemorrhage with a worsening of brain swelling, subgaleal and brain haemorrhages caused by subsequent trauma. The degree of swelling in [May]’s brain and legs and the rapid deterioration in her clinical state, including seizures and breathing difficulties, suggest a significant traumatic event occurring in the hours prior to her presentation.

Evidence from the householders

The jury heard evidence from the three occupants of the house, other than the applicant, namely Ms Morgan, Mr Morgan-Wade and Ms Burke. Most of the evidence presented to the jury on the trial was presented in the form of recorded evidence, there having been an earlier trial in August 2019 at which the jury had been discharged without verdict.[15] However, Ms Morgan was recalled before the Court for further cross-examination at the trial held in October 2019.
[15]The jury was discharged shortly before the prosecution closed its case when defence counsel informed the Court that his instructions had changed and that the Ethics Committee of the Victorian Bar had advised him that he could not continue to act for the applicant.

Ms Morgan told the Court of the history of her relationship with the applicant and the birth of her four daughters up to June 2016. She gave a short account of the family violence events of 18 October 2015 and 21 May 2016. She explained that she had allowed the applicant back into the house despite the IVO for fear of his threatening conduct towards her saying, ‘He would always have the last laugh’. She described his anger on 21 May 2016 when he told her to, ‘Shut the kid up. Shut the fucking kid up’, culminating in a neighbour calling the police, her placement into emergency accommodation for the following weekend and the Department’s safety plan that resulted in Mr Morgan-Wade and Ms Burke coming to live with her and the children at the house.

According to Ms Morgan, the applicant stayed at the house on the night of 9 June 2016 and was there during the day of 10 June 2016. She gave an account of her movements during the day and the events that occurred. She said the applicant was left with May, who was sick with a chest infection, while she was shopping between about 3:30 pm and 4:30 pm. She described what occurred when she arrived home that afternoon, eventually noticing May’s swollen legs while she changed her nappy and then her subsequent journey to the hospital in the taxi with Ms Burke and May. In her words:

I laid her on the floor and I took her nappy off, wiped her bum and then, as you grab her ankles to lift them up to slide the new nappy under, she – sort of made this weird cry, which, like, to me it was abnormal. To me it meant pain, so I looked and I thought maybe I’d, like, poked her bottom with a prickle or something on the ground. I looked. There was nothing there and that’s when I noticed her legs were tight, swollen looking. I asked [Ms Burke] if her opinion was the same as mine, if they seemed not normal. She agreed with me. I showed Luke. He said, ‘Yeah, they do look a bit tight’. And I’m, like – so I called a taxi to go down to the hospital.

At the hospital, staff pointed out a soft spot on May’s head which Ms Morgan had not previously seen. She informed them of the stumbling incident when Dianna fell on May, and even wondered whether a spider had bitten May.

Ms Morgan said she had wanted to accompany May to the Royal Children’s Hospital in the helicopter but was not permitted to do so due to the lack of room. Instead, she returned home with the applicant, who had later come to the hospital at her insistence, and she made arrangements for the applicant’s mother, Vicki Peta Heard, to drive them to Melbourne the next day.

Under cross-examination, Ms Morgan was questioned extensively about numerous contradictions and inconsistencies between the various accounts she had given of the events of the day. She had previously made two statements to police, had undergone a record of interview when she initially was a suspect, and had also given evidence at the committal hearing. Essentially, the questions ranged over her movements back and forth from the house on 10 June 2016, her mode of transport, who was with her, the timing and sequence of her various stops, and so forth. She was questioned about the details of the two prior family violence incidents that have been referred to above and, more generally, about her previous experiences with police and the Department. She agreed that in total there had been eight IVOs over the years, five in her favour and three in favour of the applicant.

Ms Morgan also agreed that she had initially lied to police about the applicant not being at the house and that she had asked Mr Morgan-Wade and Ms Burke also to lie on that subject. She said she did so because the applicant was not supposed to be at the house under the IVO made in October 2015. She also admitted various prior convictions for assault and dishonesty (although she denied others). She admitted she regularly used ice on a daily basis if she could get it. She agreed to forgetfulness and mixing up dates and times, especially in connection with her drug use.

Many allegations were put to Ms Morgan consistent with the applicant’s claims made about her in his record of interview, including that she:

(hh) yelled and swore at the children;

(ii) exchanged sexual favours for drugs;

(jj) scared the children;

(kk) shook the children;

(ll) hated the children;

(mm) injected the applicant with drugs while he was asleep; and

(nn) became a ‘monster’ whilst under the influence of drugs.

Although admitting her drug use and that life looking after the children, one of whom had attention deficit hyperactivity disorder, was challenging and tough, Ms Morgan denied most of these allegations. She also said that in May and June 2016, the applicant was as regular a user of both marijuana and ice as she was, using it daily if available. According to her, the effect of the drugs upon him was either to make him angry or to fall asleep.

One of the questions in her further cross-examination before the jury in October 2019 concerned a text message she had sent to her sister after the discovery of May’s injuries on 10 June 2016. Ms Morgan responded to her sister’s question ‘How is [May]? Any improvement?’, saying that fractures had been found in May’s legs, and, ‘I have no idea how it’s happened, it’s like [Jessica] all over again’. Ms Morgan agreed that the message alluded to an incident which had occurred in 2009 involving Jessica at which time the Department had removed Jessica from her care. In her earlier evidence given in August 2019, Ms Morgan said that that incident involved an injury to Jessica’s face and eye, that she did not know how it had been caused and that, by that time, she was already in a relationship with the applicant.

Mr Morgan-Wade told the Court he was the brother of Ms Morgan and partner of Ms Burke. He said he and Ms Burke went to live with Ms Morgan and the family at the house because ‘DHS asked us to’. He said the applicant was living at the house ‘90% of the time’. Mr Morgan-Wade was vague about his movements on 10 June 2016 saying that he may have been at an employment services agency at one point and at his brother’s at another point. But he did not accompany either Ms Morgan or Ms Burke.

Back at the house in the evening, he said he and Ms Burke were watching television and May was on the floor in a rocker. Ms Morgan was cooking dinner and he thought the applicant was in a bedroom. He noticed Dianna fall upon the legs of May on the floor and both children started to cry. He said Ms Morgan came from the kitchen, picked up May and calmed her. Soon after, while Ms Morgan was changing May’s nappy, she noticed May’s swollen legs, panicked and decided to go to the hospital. He also observed the swollen legs.

Under cross-examination he agreed that he had previously made two statements to the police, one in June 2016 and the other in August 2016. In the first statement he had made no mention of the applicant being at the house and he agreed that he had been told by Ms Morgan not to tell the police that the applicant was at the house.

He said that he, Ms Burke, Ms Morgan and the applicant were all using ice on a daily basis at that time. He denied that using ice made him aggressive. On the other hand, he said that Ms Morgan became tense and aggressive if she did not have ice.

He also said that Ms Morgan regularly hit the applicant and that he, Mr Morgan-Wade, would step in to stop the applicant retaliating because the applicant would become angry. He also said he had heard Ms Morgan verbally abusing the children, regularly, calling them ‘arseholes’, ‘fucking little cunts’ and ‘useless kids’.

He had noticed what he described as some raised skin, like a blister, on May’s head the day before 10 June and had pointed it out to Ms Morgan. Asked if he himself had hurt May, he said ‘no … I wouldn’t ever harm a child, or anyone, really’.

Ms Burke gave evidence. She told the jury that in June 2016 she was 18 years old and the girlfriend of Mr Morgan-Wade. She had been living at Ms Morgan’s house on and off for a couple of months before May 2016 when the Department asked her to stay at the house to ensure that the applicant did not return to live there. However, she said, the applicant never left and had continued to live at the house. Ms Burke said that she observed how the applicant behaved toward the baby, May. She said:

He talked down to [May], like, called – referred to her as an ‘it’, said that he hated her, she wasn’t his child even though you could quite tell the similarities between the two [i.e., [May] and [Clara]]’.

Ms Burke spoke about the routine at the house and the care of the children. She also spoke of the movements that she and Mr Morgan-Wade took on the day of 10 June 2016. They had dropped Clara off at kinder, returned to the house at about 9:35 am and then left again at approximately 10:15 am and were ‘down the street pretty much all day’. They returned to the house about 5:00 pm.

She said that she, the applicant, Ms Morgan, Mr Morgan-Wade and the children were all in the house at that time. At one stage, Dianna fell on May. Ms Burke said she attempted to prevent the fall but was too late. Dianna fell over May’s legs and both children started crying. She said Ms Morgan came from the kitchen and picked May up and May stopped crying and appeared to be alright. She was placed back into the porta-cot on the floor and Ms Morgan returned to working in the kitchen.

Ms Burke said about half an hour later, Ms Morgan returned to the living room to change May’s nappy when she asked Ms Burke to look at May’s legs. Ms Burke noticed that they were swollen. Ms Morgan became distressed, called a taxi and together they went to the hospital with May. At the hospital, Ms Burke observed the doctors check May’s legs and then also find a soft spot on May’s head which they pointed out. Ms Morgan became distressed, overwhelmed and was crying.

Ms Burke agreed that, in a statement she made to the police, she left out that the applicant had been staying at the house and that she had done so at the request of Ms Morgan. When cross-examined about the relationship between Ms Morgan and the applicant, Ms Burke said that it was marked by ‘more than fights and arguments … he was very violent towards [Ms Morgan], even while pregnant with [May]’. When asked if Ms Morgan was violent towards the applicant too, she said, ‘not as violent as what Luke was’.

Ms Burke agreed that all of the household used ice, regularly, the applicant included, whom she said used ice daily or even more than once a day.

She agreed that Ms Morgan swore at the children but denied hearing her using some of the more offensive expressions alleged. She did not see anyone hurt May except when Dianna fell on her. When asked directly, ‘could you have hurt [May]?’ Ms Burke answered ‘no’.

She admitted to the commission of a number of offences, including dishonesty offences and use of methamphetamine, agreeing that she had been imprisoned, placed on a community corrections order and, indeed, was in custody at the time of trial.

Other witnesses

Other than statements from witnesses read to the jury and police witnesses, the final two witnesses were the applicant’s mother, Ms Heard, and his aunt, Joanne Hollingsworth. Before turning to the evidence of Ms Heard, it is first necessary to recount a further aspect of the applicant’s version of events as given to the police. In his record of interview, the applicant gave quite a detailed account of having, himself, discovered May’s injuries on 10 June 2016 and what had occurred thereafter.

Although elaborated in answers to many further questions, the substance of the applicant’s account was given in this passage:

… so I’ve been away ... and I come, come around to - come around home just stop there to see [May], ‘cause [Ms Morgan] would be there - to see her. And I’ve noticed, like, she was asleep when I walked in so I did what I always do, I walk up, “Hey, bub, how you going?” Grabbed her little hand and give her a kiss and, “Little darling.” And I see, like, a lump on the side of her head and I’m thinking, “O.K., well, this isn’t good.” And I go to [Ms Morgan], and I say, “[Ms Morgan], what’s happened to [May], she’s got, like” - what do you say – “on the side of her head, like, it’s all soft and - and spongy. What’s going on there?” And she goes, “Oh, I dunno, I dunno.” And I said to [Clara], she was, like, in the kitchen, I’m like, “[Clara], have you hurt your sister or what?” I said, “Which one of you girls hurt?” “No, no, dad, they never hurt, that’s all, O.K.” I’m like, “[Ms Morgan], what the fuck have you done to that - that daughter of mine, what are you - what are you been doing, you’ve been hurting her, haven’t ya?” And she’s like, “Nuh, nuh, nuh, nuh.” She’s getting angry and stuck into me, she goes, “Don’t – don’t come here, barking orders and fuckin’,” you know, “get smart with me.” And I’m like, “Hey, I’m just - I love that kid and, like, and I’m just worried about her.” An hour goes by and she wakes up and [Ms Morgan]’s fuckin’ yelling and screaming and carrying, I’m like, “It’s all right, I’ll go deal with this.” So I grab [May] in the little bassinette, and I just put her up in me arm and on me shoulder and I’m giving her, like, a burp ‘cause I thought she had wind, she had blue around her lips, and I’m doing that. And, “Oh, come on, bub, change your bum,” just put her in front of the heater ‘cause it was cold and take the jumpsuit off and nappy off. And I, like, I look at her little foot and at the bottom of her foot she had a bruise on the side of her foot, I never seen nothin’ like it. And I thought, “What the fuck is this?” And I grab her, like, little foot and holding it and it’s, like, really firm. Then I seen, like, both her legs from the knees down have been tight, you know what I mean, like, they got - they got marks on ‘em and they’re – they’re tight. And I’m like, “[Ms Morgan], what the fuck have you done this kid, like, you’ve fuckin’ hurt her, haven’t ya?” And then she’s like, “Nuh,” and I’m just like, “Yeah, whatever,” I couldn’t .......... whatever, I said, “You - you get her fuckin’ to the hospital, I’ll ring up mum.” Mum come around and had a look and mum told me, she said, “Yeah, she’s got swollen brain,” she didn’t know, like, what was wrong with her, with her feet. And I told [Ms Morgan], I said, “Get her to the - get down to the hospital.” And not long after mum left she, yeah, called a taxi and got her down, yeah.

The key elements of the applicant’s account of what occurred may be summarised as follows, namely that:

(oo) he had not been at the house overnight but had arrived at the house to see May;

(pp) upon going to kiss May he noticed a lump on her head which was soft and spongy and he asked what was going on;

(qq) after about an hour of Ms Morgan’s yelling and screaming, he decided to do something about May’s condition, picked her up and noticed that her lips had gone blue, then, after he took May’s nappy off, he noticed that she had a bruise on her foot and her legs were tight;

(rr) he told Ms Morgan to get May to the hospital, but first rang his mother who came, saw May, and said that she had a swollen brain but did not know what was wrong with May’s feet; and

(ss) soon after his mother left again, Ms Morgan called a taxi and took May to the hospital.

Clearly, this account differed from the account given, collectively, by Ms Morgan, Mr Morgan-Wade and Ms Burke.

Ms Heard initially told the Court that, before receiving a text message from her son, the applicant, at 1:28 AM on the morning of 11 June 2016, she had last seen him at her house on a couple of occasions following a phone call with him on 21 May 2016 (the day of the second of the two family violence episodes previously referred to). The text message that she had received from the applicant on 11 June 2016 read as follows:

Hey mum [May’s] injuries not good she’s not in a good way at all she gone to royal children’s hospital bleeding round brain and leg trauma gotta go to melb tomoz if I can use ur car plz would b bloody awesome this is fucked old girl I’ve got mixed emotions don’t know how this happened she’s always safe up high supervised I’ll talk to u more in morning gotta get some sleep love u mum

Ms Heard told the Court that, upon receiving that message, she was ‘absolutely devastated’, ‘in shock’ and that it was ‘the first I’d ever heard of [the injuries to May]’. She said she then organised to take the applicant, Ms Morgan and one of the children to Melbourne. On the journey, she claimed that Ms Morgan said that ‘it wasn’t Luke … He would never do that.’ Ms Heard also claimed that Ms Morgan was ‘emotionless’, never cried and ‘wasn’t really concerned very much about [May]’.

A recording of some phone calls during 2017 between the applicant (from prison, on remand) and Ms Heard were played to her in Court. In one of those calls, the applicant referred to his solicitor wanting to speak to Ms Heard. In the call, the applicant said to his mother:

You’ve got to talk to him, mum, and, like tell him that you come around there and you seen the bump on her leg, and I’m sure you seen the swelling on her legs, too, didn’t you? … Did you see the swelling on her legs and her head? Maybe it was the first day you come around.

In response, Ms Heard said to her son:
It was - there was a couple of days before she – she was in the hospital I was around there and she … You told me about it and I come around and she screamed her little head off … And you said you were gonna - it might have been the day before ‘cause you said you were gonna take her to the doctor.

When the prosecutor reminded Ms Heard that she had just told the Court that the 1:28 am text was the first she heard of May’s injuries, Ms Heard then said, ‘I do remember seeing a little bump on her little head when I was nursing her … I never thought anything of it because she was a newborn baby’. Following some further questions, the prosecutor obtained leave from the judge pursuant to s 38 of the Evidence Act 2008 (‘Evidence Act’) to cross-examine Ms Heard.

The prosecutor put to Ms Heard the contents of a previous sworn statement she had made to the police on 14 August 2016. In that statement, Ms Heard had told police she had not seen the applicant from a few days after 21 May 2016 until she saw him again on the morning of 11 June 2016 after learning of May’s injuries. In seeking to explain why she made no mention of an occasion when she observed a bump on May’s head and swollen legs, she said, ‘I just didn’t think anything of it because she was a newborn baby … I never thought they were injuries’. She also said that before learning of May’s injuries on 11 June 2016 she had no idea, prior to that, that May was injured. In answer to some later questions, she indicated that the little bump had been on the left side of May’s head.

Ms Heard denied that her evidence about noticing a bump on May’s head and swollen legs was untruthful and was only given to assist her son.

The remaining witness was Ms Hollingsworth, Ms Heard’s sister. Ms Morgan and Ms Heard had stayed with Ms Hollingsworth overnight during their stay in Melbourne on 11 and 12 June 2016. Ms Hollingsworth said that Ms Morgan had seemed most concerned about the applicant, had said she had no idea what had happened to May and at different times said that it may have been the toddler (ie,Dianna) or Clara who had been responsible. Ms Hollingsworth also said that in the past she had heard Ms Morgan say very harsh and unsuitable things to her children, ‘really horrible words to a child that a child shouldn’t ever hear from a loving parent’.

Relevant to the various accounts given of what occurred to May, the prosecution tendered two documents written by the applicant: one, a letter dated 19 May 2017 written to ‘Karen’ at the Department (‘the Letter’) and the other, an undated set of notes made in his hand writing found upon the execution of a search warrant in which he appears to set out an account of what occurred during the three days leading up to May’s hospitalisation (‘the Notes’).

In the Letter, amongst other things, the applicant wrote:

… It was me who saw [Ms Morgan] shake [Dianna] and [May], she even said to me that she had rolled over on her in her sleep the night before. I found her legs to be swollen thursday night and I got my mum to come round and look at [May], I told [Ms Morgan] to get her to hospital, she said that she’d be right, and as badly as I wanted to take her I couldn’t as I was on the run. I even noticed that having [May] in front of the heater made all the swelling go down, I believe that it wasn’t all [Ms Morgan] but that [Mr Morgan-Wade] had something to do with it also.

In the Notes, the applicant set out an extensive four page account listing events on the Wednesday, Thursday and Friday (Friday being 10 June 2016). In the Notes he recorded that a bump was found on May’s head on the Wednesday and that he had witnessed Ms Morgan shaking May on the bed in their room. He noted that he had asked his mother to come around after work and that he and his mother felt around the baby’s head and had noticed an irregularity on May’s skull. He claimed that on the Thursday he noticed that May had bruises on the soles of her feet and that her lower limbs were swollen. He claimed to have asked Mr Morgan-Wade and Ms Burke which of them had hurt May. Later that night, he had pointed out to Ms Morgan that something was ‘not right’ with May at which point Ms Morgan allegedly said she may have elbowed May in the head and it was all her fault. He wrote that he had comforted Ms Morgan. He recorded that he had noticed that heat reduced the swelling over May’s legs and her head, so he had made sure to keep her warm whilst the others – Ms Morgan, Mr Morgan-Wade and Ms Burke — simply smoked ice.

On the Friday, he wrote, he had been caring for May during the day, enjoying ‘having some quality daddy time with her’, after which he fell asleep. Later, while holding May on his knee, burping her, he noticed she looked pale, was twitching and looking downward. That was when, he wrote, ‘my fatherly instinct kicks in’ and he called Ms Morgan in and he told her to ‘call the ambos’. Instead, she took a taxi with Ms Burke to the hospital. He then wrote of his tearful reaction at the hospital to all that had occurred and gave many other details about Ms Morgan’s hatred for the children and his protectiveness toward them as a father.

It is to be noted that counsel for the applicant did not attempt to put this version of events to any of the prosecution witnesses in cross-examination. Nor did counsel for the applicant seriously suggest to the jury that they should accept that those events had occurred as described by the applicant. Counsel only suggested that Ms Heard might have been confused about when she noticed something about May, and that her recollection was consistent with the baby having suffered other injuries on earlier occasions.

The prosecution case

The case which the prosecution ultimately advanced to the jury was a circumstantial case. The elements of that circumstantial case were, in the broad, four-fold. The first was that the bulk of the injuries suffered by May must have occurred within hours, up to a day, of her admission to hospital in the evening of 10 June 2016. Some of those injuries would have been occasioned within hours of that admission. Secondly, the injuries were not accidental but were the result of an abusive episode. Thirdly, the applicant had the opportunity to inflict the injuries within the specified timeframe, having been alone with May between at least 3:30 pm and 4:30 pm on 10 June 2016. Fourthly, the prosecution contended, the applicant had told ‘demonstrable lies’ about the events leading up to May’s hospitalisation in his police interview, the Letter and his Notes, and had tried to ‘recruit’ his mother to support those lies. This last element, the prosecution told the jury, could be used by them to infer that the applicant admitted that he had committed a crime.[16]
[16]In accordance with s 19 of the Juries Directions Act 2015, the prosecution had filed a Notice of Incriminating Conduct concerning this evidence.

Ruling and charge

As previously mentioned, the trial at which the applicant was convicted was a re-trial that followed shortly after an aborted trial. New defence counsel had been retained. Substantial pre-trial argument took place before the re-trial. A topic of significant debate concerned the admission of evidence about the various family violence episodes. Another topic concerned the amount of the applicant’s record of interview that should be tendered. As will appear, those two issues were inextricably linked. The discussion in the judge’s ruling on the admission of the evidence about the family violence episodes is central to the applicant’s first three proposed grounds of appeal.

The judge gave a written ruling on 8 October 2019.[17] As explained by the judge (who was also the judge in the aborted first trial):

… Counsel now briefed seeks to run the defence in a different manner from the first trial and seeks the exclusion of a significant component of the accused’s record of interview. In that interview [the applicant] alleges that [Ms Morgan] caused the serious injuries to the baby and that she engaged in enduring, drug-fuelled family violence. For its part the prosecution proposes to lead evidence of a chaotic and dysfunctional domestic environment in which both the accused and [Ms Morgan] were regular users of illicit drugs and both were engaged in interpersonal violence.

Defence counsel seeks to selectively excise some of the more colourful or florid utterances of his own client. If that evidence is excluded, then counsel seeks to prevent the prosecution from leading evidence that challenges or contradicts those assertions of the accused.[18]

[17]Judge Taft, County Court, DPP v Hollingsworth, Transcript 8 October 2019, pp 105-116, [14], [15] (‘Ruling’).

[18]Ruling [14], [15].

After setting out examples of passages from the record of interview of the applicant’s ‘florid utterances’, some of which we have extracted above, the judge turned to the prosecution argument:

The prosecution’s contention is that Mr Hollingsworth has choreographed a false narrative with the intention of blaming [May’s] injuries on [Ms Morgan]. In effect the prosecution assert that Mr Hollingsworth is engaging in a character assassination of [Ms Morgan] and painting himself as a protective angel. That, the prosecution contends, is entirely untrue and in those circumstances the prosecution is entitled to adduce evidence that rebuts Mr Hollingsworth’s narrative and presents, what is said to be, a realistic picture of a dysfunctional home blighted by illicit drug use and interpersonal animosity and aggression.[19]

[19]Ruling [19].

The judge noted that the prosecutor had proposed to limit the evidence of family violence to ensure that the applicant’s ‘more emotive accusations’ did not ‘swamp the trial’, and had put forward a proposal to excise portions of the applicant’s record of interview. Nevertheless, as the judge put it, counsel for the applicant sought to ‘selectively exclude … a broad swathe of material relating to prior incidents of violence, prior DHHS contact, prior intervention orders and the drug use of the accused’.

Counsel for the applicant had submitted that such evidence was irrelevant to any fact in issue and enlivened impermissible tendency reasoning that, because the applicant had been violent towards Ms Morgan in the past, he was more likely to have been violent toward May. To that submission, the judge said:

In my view, it is the accused in his record of interview, who asserts that [Ms Morgan] is a violent, psychotic monster and that she is responsible for the serious injury to [May]. It is the accused who recites a series of episodes in which he alleges that [Ms Morgan] was violent and he does so in order to present her as responsible for [May’s] injuries. It is not to the point that defence counsel may now have a view that answers given by his client in the course of his record of interview were inflammatory and may be rejected by a jury.
In this case it is the accused who enlivens tendency reasoning in respect of [Ms Morgan] in order to buttress his nomination of [Ms Morgan] as the offender. It is the accused who will derive the benefit of a tendency direction if it is sought. Indeed, previous defence counsel filed a tendency notice in respect of [Ms Morgan], although in the course of the fluctuating pre-trial submissions, it is not relied upon in the current trial.[20]

[20]Ruling [22], [23].

Noting that the ‘source’ – which we take to mean the root cause for the production − of the impugned evidence was the applicant’s own record of interview, the judge held that:

the Crown is entitled to lead the accused’s record of interview - and it should be noted that the prosecutor has proposed significant deletions - as evidencing the accused’s defence and characterisation of his role in contrast to that of [Ms Morgan]

which, in turn, meant that:
the Crown is entitled to rebut those assertions and lead evidence that the accused was not the peaceable, protective family man that he claimed to be. In my view the evidence is directly relevant to the central issue the jury will have to determine.[21]

[21]Ruling [24].

The judge also rejected the applicant’s submission that the evidence to be led to rebut his assertion that he was a peaceable, protective family man – namely, evidence of the family violence episodes and the Department’s interventions — should be excluded under s 137 of the Evidence Act.

Ultimately, the judge added a ‘footnote’ to his Ruling after all the evidence had been tendered at trial. In the footnote the judge wrote that, in the end, the applicant’s counsel wanted most of the inflammatory passages that the prosecution was prepared to redact to be included in the evidence, with some other evidence excluded by consent. Consequently, the trial was conducted largely on the basis of the evidence given at the first trial with the applicant’s trial counsel seeking (and obtaining) a tendency direction for use of the evidence about Ms Morgan’s tendency to be aggressive toward her children.

In his final charge to the jury, the judge addressed the evidence that the jury had heard regarding the applicant’s use of drugs, the imposition of the IVOs, the alleged incidents of violence towards Ms Morgan in the presence of the children of 18 October 2015 and 21 May 2016, and the evidence that the applicant had been violent towards Ms Morgan while she was pregnant. Consistently with the Ruling, the judge directed the jury that the evidence was admitted to challenge the claims made by the applicant in his record of interview, to explain why he was not supposed to be staying at the house and the existence of the safety plan requiring Mr Morgan-Wade and Ms Burke to stay at the house. The judge directed the jury that:

The evidence has been led with a limited purpose of challenging [the applicant’s] claims in his record of interview and to provide a fuller context of the family dynamics and the domestic setting in which the alleged offending occurred.
You must not use this evidence for any other purpose or reason in any way that [the applicant] must be guilty of harming [May] because of evidence that he used ice regularly, had been violent towards [Ms Morgan] when she was pregnant, or that intervention orders had been taken out after allegations that he had been violent to [Ms Morgan] in the presence of the children.
You must not reason that he is the sort of person who is more likely to have seriously injured [May] because he used ice or there had been incidents of violence towards [Ms Morgan]. You could only find the accused guilty if you are satisfied of his guilt on the whole of the evidence and not because of any judgments you may make based on the misconduct evidence about his drug use, the fact that intervention orders were in place and evidence of violence towards [Ms Morgan].

Proposed grounds 1, 2 and 3

The applicant’s first three proposed grounds of appeal were as follows:

Ground 1 – That the learned judge erred in admitting the context/relationship evidence, which resulted in a substantial miscarriage of justice.
Ground 2 – That the admission of the context evidence [referred to in Ground 1] invited impermissible tendency reasoning which could not be remedied by judicial direction.
Ground 3 – The prosecution’s characterisation of the evidence of past family violence led to impermissible tendency reasoning that could not be remedied by judicial direction.

In oral submissions, the applicant made clear that his arguments with respect to proposed ground 1 were the most important of all of his submissions and that those in respect of grounds 2 and 3 necessarily followed, and were different forms of attack on the impugned evidence.

It is critical, at the outset, to identify specifically the so-called ‘context/relationship’ evidence which is the subject of first three proposed grounds of appeal. So far it has been described, categorically, as the ‘family violence evidence’. To recapitulate, it was more particularly identified in written and oral argument to comprise:

(tt) Evidence from Ms Morgan concerning:

(i) the ‘family violence incident’ on 18 October 2015, the resulting IVO and the reason that Ms Morgan allowed the applicant back into her home (ie, the applicant’s threats);

(ii) the ‘family violence incident’ on 21 May 2016, the consequential emergency accommodation and, again, the reason that Ms Morgan allowed the applicant back into her home (ie, the applicant’s threats); and

(iii) the safety plan organised by the Department after the incident on 21 May 2016 designed to prevent future family violence and incidents in the home, including the arrangement that Ms Morgan’s brother and his partner would come to live with Ms Morgan and the children.

(uu) Other evidence regarding the existence of family violence orders issued on 28 October 2015 and 21 May 2016 regarding the incidents outlined in paragraph (a).

(vv) Evidence from Ms Burke that there were ‘more than fights and arguments’ between the applicant and Ms Morgan and that the applicant was ‘very violent’ towards Ms Morgan, even when she was pregnant with May.

The manner by which most of this evidence was presented was prearranged following the lengthy pre-trial argument. That is, it was adduced by the prosecutor asking leading questions of prosecution witnesses, no doubt with the concurrence of the applicant’s counsel. In this way, the evidence was limited and highly contained. For example, the jury was not informed about the applicant’s alleged use of a knife or of boiling water, or of him breaking a phone, in the course of the family violence incidents.[22] Exceptions to this outcome were few: for example, Ms Morgan volunteered that the applicant would ‘threaten’ her and ‘have the last laugh’ and Ms Burke responded to a question in cross-examination with the evidence that Ms Morgan had not been as violent towards the applicant as the applicant had been toward Ms Morgan even while she was pregnant with May.
[22]See above at [0] and [0].

As a result, the evidence of the applicant’s violence was mostly devoid of specific detail and was bland in nature. For example, the evidence of the Department’s intervention as given by Ms Morgan was as follows:

Were the Department of Health and Human Services involved with your family at this time?---Yes.
And they had been involved with your family in the past as well, hadn't they?---Yes.
And at this time did they organise what's known as a safety plan for you and the children?---Yes.
And that was designed to prevent future family violence - - -?---Yes.
- - - and incidents in the home?---Yeah.
And was one of the arrangements that was put into place – was that your brother would come and live with you?---Yes, and his partner.

Another example was the way in which Detective Sergeant Olston described the family violence episodes and subsequent orders. He agreed that there had been a ‘family violence incident on 18 October 2015’ where the allegation had been that ‘the father had been violent to the mother in the presence of the children’. He stated that the IVO was obtained allowing the applicant to have contact with his children but not to attend the home address or at school or at day care. The detective agreed that there was another family violence incident on 21 May 2016 when, again, the allegation was that the ‘father was at the premises, violent to the mother in the presence of the children’, after which the Department put into place a safety plan. The effect of the plan, he said, was that Ms Morgan and the children had to stay at a motel for a couple of days and, thereafter, Mr Morgan-Wade and Ms Burke were to live at the family home. Separately, the detective said, the IVO was to prevent the applicant from any contact and from being at the family home.

In his written case, the applicant contended that evidence of his previous violence toward Ms Morgan could not be justified as relevant evidence of context or of relationship. In his submission, evidence of the applicant’s violence towards Ms Morgan had no probative value towards the fact in issue, namely whether he was the one who had harmed May. Still less could evidence of the existence of previous intervention orders have any rational bearing on the question of whether he had harmed May.

He disputed the proposition that such evidence was capable of making other evidence more intelligible as the prosecution had contended. In particular, he submitted that because the prosecution case was that the applicant was the only person with the opportunity to harm May (although, we doubt that was the prosecution case), the justification that the family violence evidence made other evidence more intelligible could not be sustained.

A significant focus of the applicant’s argument about relevance involved the assertion that violence toward an adult could have no probative bearing on the question whether that person was violent toward child. The applicant identified the ‘real crux’ of his argument as being centred on the evidence from which it may be inferred that the children needed to be protected from him. That evidence included evidence of him being violent towards Ms Morgan while pregnant, violence perpetrated in front of the children, the IVOs, the safety plan of the Department and the emergency accommodation for Ms Morgan and the children, all of which, the applicant contended, implied that the children required protection from him.

The applicant argued that such evidence was irrelevant, unnecessary and invited tendency reasoning and, furthermore, the proposition that the children required protection from him was contrary to fact. Indeed, the applicant argued that in this case the evidence was all one way when it came to his conduct toward the children — that is, that there was no evidence that he had been violent towards them but, instead, only that he had been a protective and caring father.

The applicant contended that during the course of discussion in the pre-trial argument, the judge had stated that the family violence evidence ‘balanced’ some of the ‘invective’ expressed by the applicant in his record of interview. The applicant submitted that there was no recognised category of ‘balancing’ evidence.

Moreover, the applicant contended that there was simply no need to adduce evidence of the previous family violence incidents, the safety plan or past intervention orders because, in his own record of interview, the applicant did not seek to define his relationship with Ms Morgan as anything other than volatile. Simply put, the applicant’s argument was that violence or aggression towards Ms Morgan was not a fact in issue in the case and evidence of it should not have been admitted.

Even if relevant, the applicant contended that the probative value of such evidence was, at best, minimal. The so-called context and relationship evidence was not necessary to explain or make more likely the other components of the prosecution case, that is, the applicant’s opportunity to harm May or any of his post-offence conduct relied upon by the prosecution. Further, to the extent that it was relationship evidence, the applicant argued it was evidence of the wrong relationship.

Next, the applicant argued that insofar as the prosecution contended that the family violence evidence was necessary to rebut his one-sided portrayal of the Ms Morgan’s violent tendencies, as given in his record of interview, those sections of the record of interview giving that portrayal could and should have been removed. Nevertheless, the applicant conceded that at a minimum he wanted to retain his statements to the effect that Ms Morgan was aggressive and violent towards the children, particularly when drug affected, but admitted that there were ‘gradations’ of the content of his record of interview which he had sought to have excluded over the course of the three days of pre-trial argument. Referring to the judge’s ‘footnote’ to the Ruling, the applicant argued that had the inflammatory parts of the record of interview been excluded, the trial could have been conducted without any reference to the disputed material.

On the subject of tendency reasoning, more particularly raised by proposed grounds 2 and 3, the applicant argued that the reasoning the prosecution sought to enliven by introducing the disputed family violence evidence was that if the applicant was violent to Ms Morgan, by extension he must be a violent person and therefore capable of harming May. In this context, the applicant argued that there was a fine line between leading evidence to contradict the applicant’s self-portrayal as a peaceable man, and inviting tendency reasoning that he was the type of man who was not peaceable and therefore more likely to have harmed his child.

Finally, the applicant contended that, in the prosecution’s final address, the prosecutor did in fact invite the jury to reason this way. Specifically, referring to the reason that Mr Morgan-Wade and Ms Burke were in the house, the prosecutor said, ‘They were there pursuant to the safety plan that the Department of Health and Human Services put in place. They were meant to be protective figures within that household’. And, referring to what the applicant said in his record of interview, the prosecutor said, ‘In his record of interview he presents a one sided and essentially false picture of family life in which all the blame lies with [Ms Morgan] and he is a protective and caring father’.

Analysis

The structure of the applicant’s argument before us was, first, to contest the relevance of the family violence evidence. Secondly, the applicant argued, in the alternative, that if the evidence was relevant, it invited impermissible tendency reasoning, its probative value was outweighed by the danger of its prejudicial effect and so it ought to have been excluded under s 137 of the Evidence Act. In our view, it is more convenient to begin with the argument about the danger of the prejudicial effect because, doing so, assists to identify the true relevance and probative value of the evidence.

Was the family violence evidence tendency evidence?

The applicant’s primary position was that the family violence evidence was adduced to demonstrate that the applicant had a tendency to be violent toward Ms Morgan. Thus, he argued that tendency evidence was not permitted because there had been no notice of it under the Jury Directions Act 2015 and, in any event, any tendency to harm Ms Morgan was entirely irrelevant to the fact in issue which was the question of who had inflicted harm on May.

Tendency evidence, as defined in the Evidence Act, is ‘evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection’. Subsection 97(1) identifies the purpose of such evidence as being ‘to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind’. The potential relevance of such evidence to the fact in issue, if that fact is whether the accused committed the charged act, is its rational capacity to enable the trier of fact to reason that, because the accused had a tendency to act in that particular way, he or she is more likely to have committed the act the subject of the charge. Section 97 (‘the tendency rule’) makes tendency evidence inadmissible unless the party seeking to adduce it has served a notice of intention to do so and the court thinks it will have significant probative value. Neither at trial nor on this application did the prosecution expressly seek to support the admissibility of the family violence evidence as tendency evidence, and indeed disavowed any such basis.

Independently of whether it is admissible for a tendency or coincidence purpose, evidence may be relevant and admissible in other ways, for example, as context or relationship evidence.[23] Such evidence may be admissible for a specific ‘context’ or ‘relationship’ use subject to being relevant and subject to the discretions in ss 135 and 137 of the Evidence Act.[24]
[23]Stephen Odgers, Uniform Evidence Law (Lawbook, 14^th ed, 2019), [EA.97.240], [EA.98.240] and [EA.101.150].
[24]Ibid; eg, Aleski (a pseudonym) v The Queen [2020] VSCA 124, [55]–[63] (Maxwell P, Niall and Weinberg JJA); Murdoch(a pseudonym) v The Queen (2013) 40 VR 451, 455 [11]–[12] (Redlich and Coghlan JJA), cf 474 [93] (Priest JA); [2013] VSCA 272.

‘Context evidence’ is evidence that provides essential background, which may help the jury to assess and evaluate other evidence in the case in a true and realistic context, and may, for example, be used to explain the conduct of the accused or another person, the person’s state of mind or circumstances of the alleged offence.[25] Its relevance, and thus admissibility, may lie in its capacity to bear upon the assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence.[26] This Court, in distinguishing tendency evidence from context (and relationship) evidence, has observed that:

There is a significant difference between evidence, that is led for the purposes of demonstrating a relationship between parties, or context, on the one hand, and, on the other hand, evidence that is adduced as tendency evidence under s 97 of the Evidence Act. In essence, tendency evidence, if accepted, may bear directly on the probability of the existence of a particular fact that is in issue in the case. That is, tendency evidence may add to the probability that the offending, alleged against an accused, did occur. By contrast, context or relationship evidence does not, in that way, bear directly on the guilt of the accused. Rather, the purpose of that evidence is to explain why the parties might have behaved in a particular way, which might otherwise seem quite extraordinary or inexplicable.[27]

[25]WFS v The Queen (2011) 33 VR 406, 412 [38] (Robson AJA with whom Buchanan JA and Whelan AJA agreed); [2011] VSCA 347.

[26]HML v The Queen (2008) 235 CLR 334, 352 [6], (Gleeson CJ, Crennan and Kiefel JJ agreeing); [2008] HCA 16.

[27]Ritchie (a pseudonym) v The Queen [2019] VSCA 202, [125] (Kaye and Weinberg JJA, Kidd AJA).

In HML v The Queen[28] (‘HML’), Gleeson CJ (with whom Crennan and Kiefel JJ agreed) explained the potential relevance of context evidence employing the language of s 55 of the Evidence Act 1995 (Cth), and also referred to its common sense foundation, saying:

Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative.…
Jurors are told that, in evaluating evidence, they should use their common sense and their experience of life. Whether or not expressly invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour. In Director of Public Prosecutions v Boardman in a passage later cited with approval in this Court, Lord Cross of Chelsea said that there are cases in which to exclude evidence of the kind presently in question would be an affront to common sense. The law must apply a more definite test, but common sense and relevance are closely related. A jury’s assessment of some kinds of evidence is likely to be based more upon common sense than upon scientific method.[29]

[28](2008) 235 CLR 334; [2008] HCA 16.

[29]Ibid 352 [6] (footnotes omitted).

Hayne J in HML said that:

… evidence of what happened on a particular occasion will often make little sense (or at least convey a very different picture) if evidence of the occasion in question is not set in its proper factual context…. [Such evidence] is relevant because it provides an important part of the context within which the events are said to have occurred, and without which the… evidence would be incomplete.[30]
[30]Ibid 401 [180].

Evidence as context

In the present case, the judge directed the jury that the family violence evidence could provide ‘a fuller context of the family dynamics and the domestic setting in which the alleged offending occurred’. For the following reasons, we consider that the evidence admitted of the applicant’s own drug use and past incidents of violence within the family, and the interventions of the police and the Department, were relevant to assist the jury to better evaluate and understand other evidence which, in turn, bore upon the existence of the fact in issue — namely, who had injured May.

First, the jury heard evidence that made it possible, if not probable, that May had sustained injuries over a longer period than merely within the previous hours or day before hospitalisation. The jury’s task was to determine whether the prosecution had proven beyond reasonable doubt that the applicant had inflicted any of the serious injuries with which May presented to hospital. Whilst it was not essential for the jury to come to any definitive views about who may have caused injuries of an older nature in order to determine whether the applicant was implicated in the injuries caused on 10 June 2016, it is clear that a realistic and not distorted view of the relationships and individual behaviours within the household in the preceding weeks and months would have been of vital significance to the jury in evaluating the evidence of what occurred on the day itself.

If jurors were to exercise their common sense and life experience to draw inferences from the surrounding facts, then a distorted picture or a vacuum of knowledge about the operation of the household prior to 10 June 2016 would have left the jury bewildered and bereft of critical contextual facts in which to comprehend the existence of the (presumed) prior injuries. The applicant’s solution was unrealistic and plainly self-seeking: he would have it that the jury should have only heard that, historically, Ms Morgan was a drug-fuelled, aggressive and child-hating mother, and be kept uninformed of his own drug use, anger and aggression within the household which led to the imposition of the recent IVO intended to keep him away from the home.

To have confined the prosecution to presenting such a distorted picture of family life in the preceding days and weeks would, we think, have been unfair. That is particularly so given the evidence of the earlier injuries to the child and given that the two central suspects for inflicting those injuries were the applicant and Ms Morgan.

In short, the disputed family violence evidence was relevant contextual evidence for the jury’s evaluation of the evidence about the older injuries to the child.

Secondly, it is clear that the credit of both Mr Morgan-Wade and Ms Burke was in issue. In cross-examination of them, counsel for the applicant highlighted their lies in telling police that the applicant was not living at the house. Each of them was questioned about their drug taking and the effect that drugs had upon them. Ms Burke was questioned about her criminal record leading the applicant, in final address, to describe her and Mr Morgan-Wade as ‘Bonnie and Clyde’. Albeit mildly, the question was put to each of them whether they might have harmed May. Against the background of this evidence, the applicant went to the jury with the proposition that this was ‘a house with problems’, extending the ring of suspicion to all four adults.

In that scenario, it was relevant and of assistance to the jury to know that Mr Morgan-Wade and Ms Burke were at the house because of the IVO and the associated safety plan. Their lies were to be seen in the context of those facts and of Ms Morgan’s proclaimed fear of the applicant, her consent to his return to the household and her request to them not to disclose to the police that the applicant was staying at the house.

Thus, again, the family violence evidence was relevant to assist the jury in evaluating Mr Morgan-Wade’s and Ms Burke’s role in the causation of injuries to May and, more broadly, the credibility of their evidence about the events of the day.

Thirdly, it is well-established that the prosecutor has a duty to put forward evidence of an accused’s defence and to give the jury a complete and fair understanding of relevant facts.[31] To the extent that the inclusion of many of the applicant’s statements about Ms Morgan and himself were the driver for the admission of the disputed family violence evidence, those statements constituted his defence, given at the first opportunity, to the allegation that he was implicated in May’s injuries. The existence of the IVO also explained why the applicant chose not to attend the hospital in the first instance on 10 June 2016, blunting the appearance of him being uncaring or, worse, concerned for his own responsibility for May’s injuries.
[31]Nguyen v The Queen (2020) 269 CLR 299, 313 [30] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ), 318 [48] (Nettle J), 330-1 [74]-[75] (Edelman J); [2020] HCA 23.

At trial, the applicant argued that if the admission of the family violence evidence was the price to be paid for having his record of interview tendered, then he would accept exclusions from the record of interview to avoid that outcome. Having read the transcript of the lengthy pre-trial argument, it is apparent that the extent to which parts of the applicant’s record of interview were to be excluded underwent searching and extensive discussion, proposals and revision. Before this Court, it was conceded, as was evident from the transcript itself, that the applicant’s position varied during the course of the pre-trial argument. From this standpoint, it is difficult to determine the extent to which the applicant finally sought exclusion of parts of the record of interview. The various versions of the record of interview with handwritten markings and redactions swapped between counsel are no longer available. But having heard counsel on the leave to appeal application, it is plain that the applicant wanted to retain at least some parts of his record of interview. He still wanted the parts referring to Ms Morgan’s alleged aggression towards the children and, most particularly, her alleged past conduct in shaking the children. Importantly, it was the applicant’s consistent position at trial that his favourable self-characterisation of a caring, protective family man should remain.

All of this culminated in the judge’s statement in his Ruling about the applicant wanting to ‘selectively exclude’ a ‘broad swathe’ of material relating to topics concerning the applicant’s violence and drug use. Again, before this Court, the applicant suggested that the solution to the admission of the prejudicial family violence evidence would have been simply to exclude a lot of the applicant’s statements about Ms Morgan’s violence. We are not now in any position to know exactly what the applicant had (or now has) in mind concerning those redactions.

But, for reasons already given, the evidence was relevant and admissible in any event for purposes other than merely correcting the applicant’s lop-sided description of the relational dynamics in the household. Moreover, having read the record of interview, we can understand the difficulty that would have arisen in attempting to separate out the material that the applicant wanted to exclude from that which he either wanted retained or which otherwise ought to have been retained to fairly depict his defence.

The version of the record of interview that the judge originally permitted to go into evidence was the version that had been significantly redacted in accordance with the prosecutor’s proposal. Yet, as the judge recorded in his footnote, most of the excluded parts were later included at the request of the defence. Counsel for the applicant explained before us that the applicant took the view that, because the disputed family violence evidence was allowed to be tendered, the applicant needed to adapt his approach to the trial accordingly and requested more of the allegations against Ms Morgan to be presented than he had originally wanted.

This ‘chicken and egg’ argument does not have much merit in our view. As stated, the family violence evidence was admissible for a number of reasons, not simply because of the allegations made in his record of interview about Ms Morgan. In any event, the applicant conceded that he still wanted some parts of those allegations to be retained. Once that position was maintained, the extent of the inclusion of material from the record of interview, and the consequential need to allow rebuttal evidence, simply became a matter of degree rather than one of principle.

Furthermore, in our view, the applicant’s conception of what was or was not relevant to the fact in issue was unrealistically narrow. His conception did not fully acknowledge the breadth of the circumstantial evidence that was salient to the prosecution case. Nor did it adequately take into account the means by which contextual evidence could assist in the evaluation of other evidence which more directly affected the probability of the existence of the fact in issue. Some of the other arguments advanced by the applicant on the subject of relevance appeared to us to be debating the factual merits of particular pieces of evidence rather than their relevance, and we say no more about them.[32]
[32]We refer here to the contentions at [93] and [95] above that certain aspects of the family violence evidence were ‘unnecessary’ either because, so the applicant asserted, there was other evidence that contradicted the point, or because there was other evidence that established it.

Reaching this conclusion, of course, does not address the objection about the danger of the prejudicial effect of that evidence relative to its probative value. We will return to that topic below. Before doing so, however, there were reasons other than for context that supported the admissibility of aspects of this evidence. We need to refer to those reasons so that the full probative value of the evidence may be weighed in the scales against any danger of its prejudicial effect.

Rebuttal of a defence

As noted, the judge also permitted the evidence of the family violence incidents, the IVOs, the Department’s safety plan and the limited description of the applicant’s violence to Ms Morgan in the presence of her children to be led ‘for the limited purpose of challenging the [applicant]’s claims in his record of interview’ and ‘to rebut the assertions that the [applicant] was … the peaceable, protective family man that he claimed to be’.[33]
[33]See above at [80] and [83].

The effect of the applicant’s two-pronged defence as articulated in his record of interview was to invite the inference that the perpetrator of the violence upon May could not have been him, and was most probably Ms Morgan. By portraying himself as a caring, calm and protective father he advanced a narrative to make it appear unlikely that he would have harmed May. Additionally, the record of interview contained a version of events which had him arriving at the house on 10 June 2016 after May had already sustained the acute injuries, which he then discovered.

Because an identifying criteria of tendency evidence is the purpose of its admission, it is possible for one party to adduce evidence merely to negate or discredit an account or a fact that an opposing party relies upon by way of defence, without the first party themselves intending to establish any tendency.[34] Accordingly, in the context of the present case we consider there is an important, even if subtle, distinction between the prosecutor adducing evidence to rebut the applicant’s self-portrayal as a caring, protective family man, on the one hand, and, on the other, adducing evidence to prove that the applicant had a tendency to harm his children to make it more likely that he committed the offence.
[34]For example s 97(2)(b) permits the prosecution to contradict tendency evidence adduced by another party without infringing the tendency rule. This is consistent with the critical focus being placed on the purpose for which the evidence is led.

In Ivanoff v The Queen,[35] Weinberg JA gave examples of different kinds of uses to which evidence of the past discreditable conduct of an accused could be put which may be relevant for a non-tendency purpose. One such use was to rebut a reasonably anticipated defence.[36] We recognise that there is a temptation to interpret the prosecutor’s evidence as being simply ‘tendency evidence to meet tendency evidence’. That interpretation was a key theme in the applicant’s argument.
[35][2015] VSCA 116 (Weinberg JA).
[36]Ibid [19].

But the separate and distinct purpose for the admission of the family violence evidence can be seen more clearly by contrasting the different purposes for which the prosecutor might adduce evidence in response to each prong of the applicant’s defence. In our view, the rebuttal evidence was confined, both in its scope and purpose, to the extent required for negating the particular evidence relied on by the applicant of his own good behaviour, which was central to his defence, and did not extend to further advancing the proposition that the applicant is the type of person who is more likely to have committed the offence, it did not attract the operation of the tendency rule.

We found no support for the applicant’s submission that the judge admitted the evidence to ‘balance’ the applicant’s characterisation of Ms Morgan as an aggressive, drug addicted person, if that submission was intended to construe the judge’s logic as ‘tendency may be adduced to combat tendency’. Properly understood, the judge ruled that family violence evidence was, at least in part, relevant and admissible to counter the applicant’s own exculpatory statements about himself and was of a non-tendency nature when adduced for that purpose.

Nor was there any merit in the argument that the only relevant evidence of the applicant’s violence was evidence of violence toward the children rather than toward Ms Morgan. For the reason already given, evidence of his disposition toward anger and violence within the family unit was relevant for countering his portrayal of himself as only being caring and protective. As a matter of common sense, episodic violence toward the mother of the child, including violence in the presence of the children generally, may be fairly considered (if the jury chose to see it this way) as inimical to the notion that the applicant was an agent for the safety and welfare of a six-week old infant in the care of the mother.

Finally, in our view, the judge was also justified in allowing the prosecution to lead the family violence evidence to discredit the applicant’s characterisation of his own typical behaviour within the household as part of an overall challenge to the credibility of the applicant’s claim that he arrived at the house after the injury to May had occurred. That claim was central to the fact in issue. An examination of the applicant’s alternative version of events reveals the interwoven nature of his characterisation of his and Ms Morgan’s parental conduct and his description of what took place and who said what to who. That interwoven nature makes it unrealistic to isolate an attack on the credibility of his account of the events from an attack on the credibility of his account of his and Ms Morgan’s general parental behaviour.

In summary, we consider that the disputed family violence evidence was relevant for the reasons we have already explained. It was not excluded by the tendency rule because it was not led for a tendency purpose. Overall, we also think that the probative value of the whole of the evidence, used in the various ways we have described in the context of a circumstantial evidence case, was substantial.

Should the family violence have been excluded under s 137 of the Evidence Act?

It remains to consider the applicant’s argument that the evidence should have been excluded under s 137 of the Evidence Act because of its probative value having been outweighed by the danger of its unfair prejudicial effect. The danger of unfair prejudicial effect was identified as the risk that the jury could have used the evidence about the applicant’s past violence in a tendency way, that is, to reason that because of his violence toward Ms Morgan, he was more likely to be guilty of the offence charged.

We accept that the distinction between negating a tendency and establishing a tendency may be a relatively subtle one. Additionally, we also recognise that there is a potential for context evidence to only be minimally probative but highly prejudicial.[37] However, in the particular circumstances of this case we do not consider there to be any real substance to the argument that the evidence should have been excluded under s 137 of the Evidence Act, bearing in mind we have already concluded that its probative value was substantial.
[37]Henderson (a pseudonym) v The Queen [2017] VSCA 237, [68] (Beach, Ferguson and Coghlan JJA).

First, we reiterate that the evidence of the family violence was presented in a relatively clinical and confined manner, devoid of any elaboration or colour. This is to be contrasted with the terms of the applicant’s descriptions of Ms Morgan’s violence, and especially his direct allegations of her tendency to shake the children. We only make this point to draw attention to the relative prominence with which the two sets of evidence was likely to have struck the jury. In our view, the tenor of the evidence of the applicant’s violence was, in context, relatively subdued. Bearing that complexion, it was unlikely to swamp the jury’s intellectual task of assessing the evidence in accordance with the judge’s directions.

Secondly, the combined effect of the prosecutor’s address about the evidence, and the judge’s charge, effectively conveyed to the jury the proper use to be made of the evidence and the use to which it must not be put. After identifying the elements of the now disputed family violence evidence, the prosecutor said this:

So what’s the relevance? What’s the relevance of that material in this trial? Well, in the first place it’s contextual. You have a right, a perfect right, to understand who was who in that household on 10 June 2016. It would be most artificial if we just started at that date. It helps you put the evidence that you hear about the relevant date into context. You’ve also heard evidence that [Ms Morgan] and [Mr Morgan-Wade] and [Ms Burke] made statements, made more than one statement in this matter, and in the first place they all said that the accused man wasn’t in the house on the night, and they went back from that and their evidence was, yes, he was, he stayed the night of 9 June. And they explain their reluctance to talk about that with the police in the first place as they understood he was in breach of the intervention order.
[Mr Morgan-Wade] and [Ms Burke], you remember, explains why they’re there in the house. They were there pursuant to the safety plan that the Department of Health and Human Services put in place. They were meant to be protective figures within that household. So it explains their presence and explains the lies that were initially told by [Ms Morgan], [Ms Burke] and [Mr Morgan-Wade] about the accused man being at the house.
The relationship between [Ms Morgan] and the accused man may have some relevance. There’s clearly been a relationship of some animosity, perhaps that's putting it rather mildly, and to some extent that may help, may help explain why he said the things he did about [Ms Morgan] in his record of interview, and of course this evidence, even in its limited form, rebuts what he says in his record of interview. In his record of interview he presents a one sided and essentially false picture of family life in which all the blame lies with [Ms Morgan] and he is a protective and caring father. So it’s in response, that evidence is response or as a corrective to that false picture of family life that he himself paints in the record of interview …

In passing, it is to be recalled that proposed ground 3 asserted that the prosecutor’s characterisation of the family violence evidence led to impermissible tendency reasoning. One of the statements made by the prosecutor said to denote that characterisation was the reference in the passage above to Mr Morgan-Wade and Ms Burke being ‘protective figures’ within the household. The other, also contained in the passage, was the prosecutor’s submission that the applicant’s record of interview presented a false picture of family life, including of himself being a ‘protective and caring father’. If those statements encourage tendency reasoning, then they do so in a remarkably oblique way. For our part, we cannot see that they do.

In his charge, the judge identified individual aspects of the family violence evidence and stated their relevance and how they might be used. Evidence of the intervention orders and the applicant’s violence to Ms Morgan in the presence of the children was adduced, the judge said, ‘to challenge the claims made by [the applicant] in his record of interview’. The intervention orders, the judge told the jury, also explained why the applicant was not supposed to be at the house, and the safety plan explained why Mr Morgan-Wade and Ms Burke were staying at the house. Evidence of the applicant’s violence toward Ms Morgan was only relevant, the judge directed, to the jury’s ‘assessment of [the applicant’s] claims that the only inter-personal violence in the house came from [Ms Morgan]’. The judge then directed the jury against using the evidence for tendency reasoning.[38]
[38]The direction is set out at [83] above.

Thirdly, to reinforce by way of contrast how the jury may not use the family violence evidence for tendency reasoning, the judge directed the jury that it may, only in the case of Ms Morgan, use the evidence of her violence as a basis for reasoning that she inflicted the injuries on May. On that point, the judge said as follows:

I turn to another consideration. In his record of interview Mr Hollingsworth claimed that [Ms Morgan] engaged in a pattern of aggressive violent drug-fuelled behaviour within the family home directed at her children. He referred to previous occasions in which he alleged that [Ms Morgan] had shaken her young children and assaulted them.
...
If you find that [Ms Morgan] had a tendency to act violently towards her children, then you can use that to find that it is more likely that she inflicted the serious injuries on [May] or at least that there is a reasonable possibility that she did so.

Primarily, courts trust that juries will obey the directions a judge gives to them.[39] In this case, we see no reason to think otherwise.
[39]Rv Glennon (1992) 173 CLR 592, 603 (Mason CJ and Toohey J); [1992] HCA 16; Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 74 (Toohey J); [1987] HCA 56; Murphy v The Queen (1989) 167 CLR 94, 99 (Mason CJ and Toohey J); [1989] HCA 28; R v Yuill (1993) 69 A Crim R 450, 453–4 (Kirby ACJ); R v Loguancio (2000) 1 VR 235, 244 [24] (Callaway JA with whom Tadgell and Buchanan JJA agreed); [2000] VSCA 33; R v Crowther-Wilkinson [2004] NSWCCA 249, [204] (Wood CJ at CL with whom Dowd and Kirby JJ agreed).

The combination of these facts leads to the conclusion that there was no real danger that the jury would misuse the family violence evidence to impermissibly reason that because the applicant had a violent tendency he was more likely to have inflicted the injuries on May.

It follows that we reject the applicant’s arguments on proposed grounds 1 to 3. The judge made no error and, consequentially, there could be no substantial miscarriage of justice.

Proposed ground 4

Proposed ground 4 is that the lack of evidence surrounding the victim’s prior injuries left open the possibility that someone else inflicted the current injuries and that the applicant did not have the requisite intention.

From the written and oral submissions we understand the applicant’s contention under this ground to be as follows:

(ww) there was evidence that May suffered some injuries in the days or weeks prior to 10 June 2016, described as the chronic injuries;

(xx) it was inherently unlikely that two different people had caused similar injuries to May in this matter;

(yy) without evidence about the nature of the chronic injuries and the identity of the person who inflicted them, the jury could not eliminate the possibility that someone other than the applicant had caused the chronic injuries and, therefore, that someone other than the applicant caused the acute injuries; and

(zz) because the prosecution led no evidence as to who caused the chronic injuries it follows that it is not open to the jury to eliminate the possibility that someone else caused the acute injuries and, thus, it was not open for the jury to convict the applicant.

In our view, this argument breaks down at numerous levels and is unsustainable. The first problem is the assumed premise that two different people could not be responsible for May’s different injuries (assuming, in fact, there were older injuries). We do not accept that this is correct.

Additionally, there is a certain internal inconsistency in the applicant’s arguments. The first three proposed grounds asserted error in allowing in too much evidence about the violence within the household. This proposed ground seems to suggest that there should have been greater exploration of violence toward May in the days and weeks prior to 10 June 2016. The fuller the picture given of the volatile, erratic and drug-affected conduct of all members of the household, particularly the applicant and Ms Morgan, reaching back into time, the greater the probability that any number of circumstances could emerge to account for May’s earlier injuries. It is well possible that the assumed premise would grow even weaker the more the household history was explored.

The second fallacy is the logical (or illogical) assumption that proof beyond reasonable doubt as to who caused one set of injuries could not be achieved without eliminating the possibility of who caused another set of injuries. As a general proposition, it may perhaps be accepted that proof that one person caused an earlier set of injuries to a victim may have some probative force toward the proposition that the same person caused similar injuries to the same victim on another occasion, particularly among a limited set of potential culprits.

But that proposition cannot be converted by some sort of syllogistic reasoning to a further proposition that only by identifying the perpetrator of the earlier injuries can you identify the perpetrator of the later injuries. In substance, this was the argument put forward by the applicant. He characterised the identification of the earlier perpetrator as the ‘indispensable link’ in the chain of reasoning for proving that the applicant was guilty of the charged offence. We reject that argument.

Importantly, the jury was properly directed that in order to convict the applicant the prosecutor was required to exclude any reasonable view of the facts other than that the applicant caused serious injury to May on 10 June 2016. The jury could not have failed to appreciate that the key alternative view was that Ms Morgan had caused the injury, as that was the almost singular burden of the defence case.

In our opinion, on the evidence as presented, it was open to the jury to conclude beyond reasonable doubt that the applicant caused May a serious injury that day. The jury could reasonably form that view regardless of whether it knew who had caused any previous injuries.

It appeared that proposed ground 4 was really a particular of the next proposed ground which was that the conviction was ‘unsafe and unreasonable’. To the extent that proposed ground 4 does form an element of that proposed ground, we reject it. We now turn to proposed ground 5 to consider its other aspects.

Proposed ground 5

Proposed ground 5 is that the conviction was unsafe and unreasonable.

The Court must allow an appeal against conviction, under s 276 of the Criminal Procedure Act 2009, if the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’. The task of an appellate court upon such an appeal is to ask itself whether it thinks upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The court must make an independent assessment of the evidence both as to its sufficiency and quality. In considering the question, the appeal court is to bear in mind that the jury had the primary responsibility of determining guilt or innocence and had the benefit of seeing and hearing the witnesses, although in most cases a doubt experienced by an appellate court would be a doubt which a jury ought to have experienced.[40]
[40]SKA v The Queen [2012] NSWCCA 205, [11]–[14] (Beazley JA); M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; R v Klamo (2008) 18 VR 644, 653 [38]–[40], 655 [43] (Maxwell P with whom Vincent JA agreed and Neave JA agreed with further comments); [2008] VSCA 75.

In written submissions, the applicant briefly referred to the absence of any direct evidence as to who inflicted the injuries on 10 June 2016, and that the existence of older injuries was unexplained. Little was said in oral argument on this point beyond the submissions already made in support of proposed ground 4 which we have already dealt with. We are satisfied from our own assessment of the whole of the evidence, as summarised in these reasons, that it was open to the jury to be satisfied beyond reasonable doubt that the applicant caused a serious injury to May on 10 June 2016.

The real attention in oral argument turned to the mental element of the charge with which the applicant was convicted. In short, the applicant argued that it was not open to the jury to be satisfied beyond reasonable doubt that he caused serious injury intentionally. Assuming the jury to be satisfied beyond reasonable doubt that he had caused serious injury in the manner described by the medical evidence (namely by shaking or striking the child), the applicant conceded it was open to the jury to find that he was reckless in doing so. But, said the applicant, the evidence did not permit any inference beyond recklessness.

In other words, according to the applicant there was no evidence upon which a jury could reasonably exclude the possibility that his mindset had been reckless (that is, with indifference towards or disregard to foreseen probable consequences)[41] as opposed to being intentional.
[41]Mutemeri v Cheesman [1998] 4 VR 484 (Mandie J); (1998) 100 A Crim R 397.

We disagree. We think there was ample evidence. Upon the constellation of acute injuries described by Dr Redenbach, and the means by which those injuries must have been inflicted bearing in mind that the victim was a six-week old infant, it is difficult to conceive of a circumstance in which such injuries could have been inflicted other than by intentional conduct. Added to that, the jury heard of the applicant’s post offence conduct which was well capable of supporting the inference that the applicant was conscious of having intentionally harmed the child.

We would not ourselves entertain a doubt as to the applicant’s intentional state of mind once we had concluded that he had inflicted a serious injury on May of the kind described in the medical evidence.

Accordingly, we reject proposed ground 5.

Proposed ground 6

Proposed ground 6 is that an accumulation of errors had led to a substantial miscarriage of justice.

Since we have found that there were no errors or irregularities in the conduct of the trial we will not uphold this proposed ground.

As a post script, we would add that this was a difficult trial, calling for a careful approach by both prosecution and judge. Having carefully analysed the evidence, addresses and charge, we consider that the learned trial judge and prosecutor commendably navigated a safe course.

Extension of time

Returning to the application for the extension of time to file the application for leave to appeal, the applicant argued that the delay was caused due to three reasons: first, COVID-19 restrictions; secondly, obtaining the transcript of the trial; thirdly, obtaining Victoria Legal Aid funding to obtain the transcript. In short, the applicant submitted that:

(aaa) following the applicant’s sentencing and his immediate commencement of his term of imprisonment on 18 March 2020, his solicitor was impeded in his attempts to visit and communicate with the applicant due to COVID-19 restrictions being in place;

(bbb) once instructions to appeal the conviction had been received, obtaining the trial transcript was delayed due to the judge’s retirement. The applicant’s solicitor contacted the County Court’s Criminal Registry on 18 June 2020 and was directed to the Victorian Government Reporting Service (‘VGRS’). The VGRS advised a payable fee per page which was a concern for the applicant given he was funded by Victoria Legal Aid. Following email communications between the applicant’s solicitor and the VGRS from 23 July 2020 to 2 September 2020, the VGRS waived the fee and provided a typed transcript and mailed an audio recording of the trial. The audio recording did not arrive and was later provided electronically. The applicant’s solicitor provided the typed transcript to counsel on 31 August 2020 who noted that recorded evidence from the first trial which was then played at the trial subject to this appeal had not been provided. To not cause further delay, the applicant decided not to make a further request of VGRS; and

(ccc) noting the volume of the trial transcript and other court transcripts, the applicant’s legal team worked on finalising the submissions since 2 September 2020.

The respondent submitted that the period of delay was substantial, the reasons for delay were inadequate and the applicant had poor prospects of being granted leave to appeal. We see merit in the first two of the respondent’s submissions. However, despite ultimately rejecting the applicant’s arguments on proposed grounds 1 and 2, we think that they had sufficient prospects of success to warrant the grant of leave to appeal. Therefore, we will grant the extension of time to file the notice of application for leave to appeal.

Conclusion

An extension of time for filing the notice of application for leave to appeal will be granted. Leave to appeal will be granted for proposed grounds 1 and 2 but the appeal will be dismissed. For proposed grounds 3, 4, 5 and 6 leave to appeal will be refused.

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[2021] VSCA 354

17 December 2021