Jesse Vinaccia v The Queen

Case [2022] VSCA 107

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2020 0184
JESSE VINACCIA Applicant
v
THE QUEEN Respondent

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JUDGES: T Forrest, Emerton and Walker JJA
WHERE HELD: Melbourne
DATE OF HEARING: 17–19, 22–26 November, 6–7 December 2021
DATE OF JUDGMENT: 7 June 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 107 (First Revision 11 October 2023: [453])
JUDGMENT APPEALED FROM: [2019] VSC 683 (Croucher J)

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CRIMINAL LAW – Appeal – Conviction – Child homicide – Death of infant in applicant’s care – Whether jury verdict unsafe and unsatisfactory – Where Crown alleged infant died from abusive head trauma (‘AHT’) caused by traumatic shaking – Where cause of death not disputed at trial – Whether jury could exclude possibility death caused by pre-existing medical condition – Verdict open to jury – Extension of time to file leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Fresh evidence – Application to adduce evidence of expert witnesses casting doubt on validity of AHT diagnosis – Where evidence available at trial – New evidence inconsistent with presentation of applicant’s case at trial – Evidence would not have resulted in acquittal if led – No miscarriage of justice – Criminal Procedure Act2009 ss 274, 276 – Bowden v The Queen (2017) 54 VR 135; Ratten v The Queen (1974) 131 CLR 510; Lawlessv The Queen (1979) 142 CLR 659, considered.

CRIMINAL LAW – Appeal – Conviction – Admissibility of evidence – Where Crown relied upon evidence of ‘triad’ of symptoms found in victim to support AHT diagnosis – Whether probative value of evidence substantially outweighed prejudicial effect – Probative value of evidence high – Evidence admissible – No miscarriage of justice caused by admission of evidence –  Evidence Act 2008 s 137.

CRIMINAL LAW – Appeal – Conviction – Non-disclosure of evidence – Obligations of expert witness – Where expert witness did not disclose certain PowerPoint slides – Whether slides show witness gave incorrect evidence about existence of scientific controversy as to AHT – Whether disclosure of slides would affect outcome of trial – No miscarriage of justice – Evidence not required to be disclosed.

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Counsel
Applicant: Mr RF Edney with Ms V Drago
Respondent: Mr CB Boyce QC with Ms A Roodenburg

Solicitors
Applicant: Doogue & George Pty Ltd
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

T FORREST and EMERTON JJA:

(1).... Introduction

(a)          Extension of time

(b)          Procedure in relation to new evidence

(c)          The offence of child homicide

(d)          Factual overview

GROUND 5

(1).... The relevant evidence at trial

(a)          Dr Tully

(i)     Information reported by others

(ii)    14–17 January hospital admission

(iii)   23 January hospital admission and Dr Tully’s examination of Kaleb

(iv)   Working diagnosis of inflicted head trauma

(v)    Retinal examination

(vi)   Dr Tully’s findings and diagnosis

(vii)  Causal connection between shaking and triad injuries

(viii) Significance of other indications: absence of external injuries; torn bridging veins; increased head circumference; raised intracranial pressure; history of ill health

(ix)…

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Jesse Vinaccia v The Queen [2022] VSCA 107
Case
[2022] VSCA 107
Decision Date

CaseChat Overview and Summary

Jesse Vinaccia was convicted of the homicide of his infant son, Kaleb, and appealed against his conviction. The appeal was heard in the Court of Appeal in Victoria. The central issue in the appeal was whether the jury verdict was unreasonable or unsupported given the evidence presented at trial. The court also considered whether there was a miscarriage of justice due to the non-disclosure of certain PowerPoint slides by an expert witness, the admissibility of certain evidence, and the availability of fresh evidence that was not presented at trial.

The court found that the jury verdict was open to them, as the evidence did not exclude the possibility that Kaleb's death was caused by a pre-existing medical condition. The court also found that the prosecution had an obligation to ensure that an expert witness discloses all relevant materials that could potentially impact the case. However, the failure to disclose certain PowerPoint slides did not amount to a miscarriage of justice. The court held that the probative value of the evidence relied upon by the Crown substantially outweighed any prejudicial effect. Therefore, the appeal was allowed on the grounds that the conviction was unsafe and unsatisfactory, and the court set aside the conviction and ordered an acquittal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

A large body of evidence was called on the appeal that concerned grounds 2, 3 and 4. None of that evidence concerns this ground, which is focused entirely on the question of whether the verdict at trial was unreasonable or unsupported having regard to evidence at trial. It is axiomatic that the jury verdict, under this ground, can only be considered on the basis of the evidence that was before the jury.(1)The relevant evidence at trial The evidence at trial relevant to this ground of appeal came largely from Drs Iles and Tully. We shall summarise their evidence.(a)Dr Tully As we have noted, Dr Tully is a forensic paediatrician employed by VFPMS. She described a forensic paediatrician as a paediatrician ‘who provide[s] a medical service to children who are deemed to be at risk or in whom [there are] concerns about physical injury, sexual assault, emotional maltreatment or neglect’. Dr Tully examined Kaleb on 25 January at MMC, having been told that he had been admitted to the Intensive Care Unit (‘ICU’) following a cardiorespiratory arrest at home. She based her report on information gathered from Erin Baylis-Clarke, the applicant, the informant Detective Sergeant Rachel Kennedy, consultant radiologist Dr Padma Rao, consultant paediatrician Dr Sarah Jame, under whose care Kaleb had come at MMC on 23 January, and medical records from MMC. (i)Information reported by others Dr Tully spoke with Ms Baylis-Clarke on 23 January and was given a brief history of the events of the previous day as well as Kaleb’s medical history. Ms Baylis-Clarke told her that Kaleb had been ‘his normal self’ during that day, until Ms Baylis-Clarke left for work at around 4:30 pm. Kaleb had not been ‘quite right’ for about a month leading up to his hospital admission on 14 January: his head circumference had been increasing and he had been generally sleepier and not feeding as well as he had previously. Ms Baylis-Clarke told Dr Tully that the reason she had taken Kaleb to the hospital on 14 January was because when she woke him that morning she noticed that his fontanelle was ‘sort of bulging upwards’ and he was vomiting more and sleepier than he normally was. An ultrasound performed at Casey Emergency Department revealed some ‘abnormalities that included the possibility that he had some fluid in the subdural space’. A subsequent MRI performed at MMC showed that Kaleb had some fluid between his brain and skull and the medical team could not tell whether this fluid contained blood, as this would require drainage by way of a ‘tap’. As we have mentioned, a tap of the fluid was planned but never carried out. This was because Kaleb’s condition improved, and he was sent home on 17 January. Ms Baylis-Clarke told Dr Tully that, although Kaleb had stopped vomiting, she still felt that his fontanelle was bulging a little and he was still not back to ‘the normal self that he had been prior to the last month’. On 25 January Dr Tully spoke with Dr Sarah Jame. Dr Jame reported the same symptoms of drowsiness, vomiting, a full fontanelle and increasing head circumference leading to his 14–17 January hospital admission that Ms Baylis-Clarke had described. Dr Jame said the MRI performed during this first admission to MMC had showed some mild enlargement of the extra-axial spaces, but no sign of acute (meaning recent) bleeding. Dr Jame said the neurosurgical team had reviewed Kaleb and decided he did not require a tap of the fluid; Kaleb was discharged with a plan to review him two weeks later as an outpatient.

Decision

Reasons for decision

However, it is apparent from my reasons that I consider that the PowerPoint slides were potentially significant to the manner in which the applicant could have conducted his case at trial, had the slides been available to him. That raises the question of whether those slides should have been disclosed to the defence prior to trial. In my opinion, they ought to have been so disclosed. However, the responsibility for ensuring such disclosure rested with the respondent, not with Dr Tully. In my view there is an obligation on the prosecution to ensure that an expert witness is briefed in such a way as to make clear that that expert should disclose — either in their report, in their CV or, at least, to the prosecution — particular materials that are relevant to the particular case in issue, even if those materials would not ordinarily be included by that person in their CV. That is, the prosecution is in a position to understand the potential significance of materials of this kind; and an obligation falls on the prosecution to ensure that an expert witness called by the Crown provides complete and full disclosure of materials produced by that witness that relate to the issues before the court. CONCLUSION For the preceding reasons I would grant the extension of time, grant leave to appeal and allow the appeal on grounds 2 and 3. By reason of allowing the appeal on ground 3, I would set aside the applicant’s conviction and order that an acquittal be entered.- - -

Ratio Decidendi

Legal Principle Established

Based on the literature she had read, and predominantly on confessional data, Dr Iles stated that there is typically a very short period between the traumatic event and the child collapsing.(2)Consideration(a)Ground 5(i) Ground 5 makes two contentions. The first (ground 5(i)) is that the evidence at trial did not allow the prosecution to exclude as a reasonable possibility that Kaleb’s death was caused by a pre-existing medical condition independent of any acts of the applicant. This contention can be dismissed relatively shortly. The MRI investigation carried out at MMC on 15 January revealed existing small bilateral hygromas and mild ventricular dilation. Clinically at that time he presented with an abnormally enlarged head, and a raised fontanelle indicative of elevated intracranial pressure. A history of drowsiness and vomiting was provided. No intra-axial haemorrhage was observed and this fact was specifically noted. By his release on 17 January, his fontanelle had mostly retreated and was more settled. Upon admission on 23 January 2016 he was unconscious, his extra-axial space was greater than might have been expected and there was evidence of subdural bleeding. Retinal haemorrhages bilaterally were observed on 25 and 26 January and the autopsy conducted on 1 February 2016 revealed severe hypoxic ischaemic brain injury with extensive subdural haemorrhages and patchy subarachnoid haemorrhages. The bilateral retinal haemorrhages were also noted. Finally, Dr Tully was asked some questions about her obligation, under Practice Note SC CR 3: Expert Evidence in Criminal Trials,[279] to disclose the existence of any significant and recognised disagreement or controversy within the relevant field of a specialised knowledge (emphasis added):I want to suggest in this case that it was an obligation upon you to recognise and inform in your report the nature of what I want to suggest is a significant dispute between scientists and clinical practitioners about this issue. What do you say?---I agree that if I believed there was a — a valid controversy about the medical diagnosis or the diagnosis I had made that I would need to include that. I think I’ve — I’ve referred in my report to um — to the fact that the degree of force to require to cause certain injuries is — is not known but given that I don’t think there is a — a — there’s unsettled science in relation to the medical diagnosis of inflicted head injury, then I don’t think I — I’m under an obligation to do so and that isn’t something that is um — is — is acknowledged routinely in VFPMS medical legal reports. Where there — where I don’t know, I must say and I believe that that’s what I do. If I don’t know the cause mechanism, timing of an injury, I’m — say that and that is what I would do. I suppose my point is those seminars you present indicate that there is a controversy. You might say the other side is providing, you know, inappropriate, insufficient but there is I want to suggest a proper controversy which is reflected in your own papers or seminar papers?---I — the PowerPoint presentation has a title — ah slide entitled, ‘Controversies’, and I think we visited that before in terms of the reason that is there and I do think it is important to understand when you do this work that there are, as I’ve said, alternative — a small minority of individuals who offer alternative views but that these are not at current times substantiated by any evidence. So we have a large body of evidence that consistently, reliably and repeatedly demonstrates this association including information that has been gained from people who said what they’ve done. We don’t as yet have any well-designed large studies that refute that association. So I don’t think I’m under an obligation where there isn’t a study that I can refer to, to — to — to include that information in my medical legal report. I’ve made a medical diagnosis and that is what is in my report.(4)The parties’ submissions concerning the PowerPoint slides[279]Practice Note SC CR 3: Expert Evidence in Criminal Trials, 30 January 2017 (‘Expert Practice Note’).