Jesse Vinaccia v The Queen

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)   Level of force required to cause triad injuries
(x)    Controversy surrounding connection of triad injuries and level of forces necessary for their production
(b)          Dr Iles
(i)     Cause of death
(ii)    Eye examination
(iii)   Level of force required to cause Kaleb’s injuries
(iv)   Whether triad injuries could be caused by the applicant’s admitted actions
(v)    Temporal relationship of traumatic event and collapse

(2).... Consideration
(a) Ground 5(i)
(b) Ground 5(ii)

GROUND 3
(1).... Introduction
(2).... The new or ‘fresh’ evidence
(3).... Background to the new evidence
(4).... Scientific basis for ‘the triad’ as a diagnostic tool
(a)          The SBU Report
(i)     Criticisms of the SBU Report
(ii)    Professor Eriksson’s evidence
(iii)   Evidence of Professor Högberg and Professor Wester on ‘the triad’
(b)          Evidence of Dr Tully and Dr Iles on ‘the triad’
(c)          Studies supporting/applying the SBU paradigm
(i)     Thiblin 2020
(ii)    Wester 2021
(iii)   Thiblin 2021
(iv)   Andersson 2021
(d)          Retinal haemorrhages as a sign of AHT

(5).... Alternative diagnosis: Benign Enlargement of the Subarachnoid Space (BESS)
(a) Professor Wester’s evidence supporting a diagnosis of BESS
(b) Dr Tully’s and Professor Ditchfield’s response to BESS diagnosis

(6).... Alternative diagnosis: Rebleed of hygroma
(a) Dr Tully’s and Dr Iles’ response to the rebleed diagnosis

(7).... What is the consequence of the new/fresh evidence?
(a) New or fresh evidence
(b) No substantial miscarriage of justice

GROUND 4
(1).... Consideration
GROUND 2
(1).... Background
(a)          Dr Tully — At trial
(b)          The PowerPoint slides
(c)          Evidence heard on this application
(i)     Professors Wester, Högberg and Eriksson
(ii)    Dr Tully’s evidence on this application

(2).... Submissions
(3).... Consideration
(4).... Conclusion

WALKER JA:

(1).... Introduction and summary of conclusions
(a)          Summary of conclusions on ground 3
(b)          Summary of conclusions on ground 2
(c)          Appropriate orders

GROUND 3
(1).... ‘New’ vs ‘fresh’ evidence
(2).... The evidence concerning BESS
(a)          The BESS evidence at trial
(b)          Dr Tully’s written reports
(c)          Professor Ditchfield’s initial report
(d)          Dr Tully’s second report
(e)          Professor Wester’s evidence
(f)          Professor Ditchfield’s rebuttal report
(g)          Professor Wester’s oral evidence on the appeal
(h)          Professor Ditchfield’s oral evidence

(3).... Consideration of the BESS evidence
(4).... The significance of BESS
(a) The evidence on the appeal concerning retinal haemorrhages
(b) Conclusions on the evidence concerning retinal haemorrhages

(5).... Conclusion on effect of new evidence
(6).... Alternative conclusion: a reasonable possibility of acquittal
(a)          How the applicant put his case on the evidence of Professors Eriksson, Högberg and Wester
(i)     The applicant’s submissions on new vs fresh evidence
(ii)    The respondent’s submissions on new vs fresh evidence
(iii)   Consideration of the new vs fresh evidence issue
(b)          Relevance, admissibility and credibility
(c)          The role of this Court in evaluating reliability and credibility of fresh evidence
(d)          Significant possibility of acquittal?
(i)     The SBU Report
(ii)    Circular reasoning
(iii)   Whether there is a medical controversy concerning the ‘triad’
(iv)   The use of a ‘differential diagnosis’
(v)    Did Kaleb have BESS? And, if so, was this relevant to the diagnosis?
(vi)   The role of retinal haemorrhages in diagnosing abusive head trauma
(vii) Other matters

(7).... Conclusion on ground 3
GROUND 2
(1).... Dr Tully’s evidence at trial, as relevant to ground 2
(2).... The PowerPoint slides
(a) The 2017 slides
(b) The 2019 slides

(3).... Dr Tully’s evidence on the appeal concerning the slides
(4).... The parties’ submissions concerning the PowerPoint slides
(5).... Consideration of the PowerPoint slides
(a) Were the PowerPoint slides ‘fresh’ or ‘new’ evidence?
(b) Effect of the fresh evidence concerning the PowerPoint slides

CONCLUSION

T FORREST JA
EMERTON JA:

(1)Introduction

On 26 June 2019 the applicant, Jesse Vinaccia, was found guilty of one charge of child homicide. He was convicted of causing the death of 16-week-old Kaleb Baylis-Clarke, by handling him in a manner that was unlawful and dangerous or, alternatively, criminally negligent. Kaleb was found to have subdural haemorrhages, retinal haemorrhages and encephalopathy — a constellation of clinical features referred to in this application (and more broadly) as ‘the triad’, which is said to be suggestive of head trauma. The applicant was charged following a police investigation undertaken in conjunction with the Victorian Forensic Paediatric Medical Service (‘VFPMS’) following Kaleb’s sudden respiratory and cardiac collapse on 23 January 2016 and his death seven days later.
An earlier trial (the ‘first trial’) was aborted in early April 2019 as a result of juror misconduct.
The applicant now seeks to appeal his conviction, principally on the basis that the diagnosis of an inflicted head injury based on the presence of three clinical features referred to as ‘the triad’ was the product of ‘junk science’. He proposes the following grounds of appeal:[1]
[1]Grounds 2 and 5 were amended, and ground 1 was abandoned, in an Amended Notice of Application for Leave to Appeal, filed after the oral hearing.
Ground Two
A substantial miscarriage of justice occurred because the expert witness, Dr [Joanna] Tully, gave evidence that was incorrect and contrary to her obligations as an expert witness and new evidence should be admitted to demonstrate how the evidence of Dr Tully has caused a substantial miscarriage of justice in the applicant’s trial.
PARTICULARS
(i)That there is no scientific controversy, or dispute, in the scientific community as to the diagnostic utility of the ‘triad’ to confirm that an infant has died as a result of non-accidental physical abuse;
(ii)That there is a ‘consensus’ in the scientific community that the ‘triad’ can be used to determine whether the death of an infant is the result of non-accidental physical abuse.
Ground Three
New expert evidence as to the cause of the death of the deceased should be admitted as that evidence demonstrates the applicant’s innocence or, at the very least, create[s] a reasonable doubt as to the applicant’s guilt because it suggests that the death of the deceased was due to [Benign Enlargement of the Subarachnoid Space] and not … a result of [Shaken Baby Syndrome]/[Abusive Head Trauma].
Ground Four
Evidence as to the ‘triad’ should not have been adduced in the applicant’s trial as the probative value of that evidence was outweighed by its unfair prejudice and the admission of that evidence has occasioned a substantial miscarriage of justice.
Ground Five
The verdict is unsafe and unsatisfactory or cannot be supported having regard to the evidence.
PARTICULARS
(i)The prosecution could not have … excluded the reasonable possibility that the death of the deceased was caused by a pre-existing medical condition independent of any acts of the accused.
(ii)The prosecution could not have excluded the reasonable hypothesis consistent with innocence that the acts or conduct of the accused as described in the record of interview did not amount to unlawful and dangerous act/s or criminal negligence.
Proposed grounds 2, 3 and 4 rely on the receipt of evidence not adduced at trial that goes to the cause of Kaleb’s death. That evidence, which the applicant now seeks to adduce from three new witnesses, Professors Anders Eriksson, Knut Wester and Ulf Högberg (the ‘Scandinavian witnesses’), calls into question the scientific basis for the widely accepted association between three clinical features found in Kaleb — subdural haemorrhages, retinal haemorrhages and encephalopathy — and inflicted head injury,[2] and advances alternative, organic causes for Kaleb’s death.
[2]The term ‘inflicted head trauma’ (‘IHT’) was used interchangeably with ‘abusive head trauma’ (‘AHT’) in evidence, and, depending on context, shall be used interchangeably in these reasons. Shaken Baby Syndrome (‘SBS’) has also been used in the past to convey a form of IHT/AHT.
For the reasons that follow, we decline to grant an extension of time in which to file the notice of application for leave to appeal.
(a)Extension of time
The application for leave to appeal was filed on 4 September 2020, approximately one year after conviction and sentence, and approximately 11 months after the time prescribed by s 279 of the Criminal Procedure Act 2009 (‘Criminal Procedure Act’). Accordingly, it is necessary for the applicant to apply for an extension of time within which to file the notice of application for leave to appeal, which he also did on 4 September 2020.
The principles that are relevant to such an application can be summarised as follows:
•The applicant bears the burden of persuading the Court that an extension of time should be granted.[3]
•Time limits exist for sound reasons. Finality is desirable and in the interests of justice.[4]
•The Court has a wide discretion in determining whether to grant such an application.[5]
•The central consideration is whether it is in the interests of justice for the application for leave to appeal to be heard.[6]
•In determining that question the Court will consider the length of the delay and the reasons for it; the prospects of success of the proposed appeal;[7] and any other relevant circumstance.[8]
•Ordinarily where the delay is considerable the Court will not grant the extension unless it is satisfied that the proposed grounds are sufficiently meritorious to justify the grant of the extension, notwithstanding such delay.[9]
[3]Barber v The Queen [2018] VSCA 232, [3] (Kyrou and Kaye JJA) (‘Barber’).
[4]Ibid.
[5]Ibid; Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (‘Madafferi’).
[6]Kentwell v The Queen (2014) 252 CLR 601, 613–14 [30]–[32] (French CJ, Hayne, Bell and Keane JJ); [2014] HCA 37.
[7]Madafferi [2017] VSCA 302, [11]. See also Woods (a pseudonym) v The Queen [2021] VSCA 105, [7] (Kaye and Niall JJA).
[8]Barber [2018] VSCA 232, [3] (Kyrou and Kaye JJA).
[9]Ibid.
The applicant’s solicitor, Mr Luke McMahon, filed an affidavit in support of an extension of time on 4 September 2020. In that affidavit, which has not been challenged, he set out various logistical challenges that accompanied the applicant’s change of solicitors in late October/early November 2019; the very large volume of material that needed to be examined so as to prepare appropriate appeal grounds; the steps taken to seek opinions from the Scandinavian witnesses; and the impact of the COVID-19 pandemic on the efforts to prepare the written case for the applicant, as well as on the broader preparation for the appeal.
It is sufficient to state that we are satisfied that the applicant’s current solicitors have acted with efficiency in the preparation of this complex application. Their explanation for the delay is persuasive and we would have granted leave for an extension of time had we have been satisfied that one or more of the proposed grounds of appeal were meritorious.
(b)Procedure in relation to new evidence
As we have indicated, this has been a complex application for leave to appeal. In addition to hearing from the three Scandinavian witnesses, the applicant tendered more than 36 documents, many of which were extensive and of a highly technical nature. The respondent was permitted to call evidence in rebuttal from Dr Joanna Tully (a forensic paediatrician from VFPMS who investigated the cause of Kaleb’s death), Dr Linda Iles (a forensic pathologist who performed a post-mortem examination of Kaleb) and Professor Michael Ditchfield (a paediatric radiologist who examined MR images of Kaleb’s head). The respondent also tendered numerous technical documents and papers.
We shall deal with a procedural issue at the outset. On 21 June 2021 at a directions hearing in this matter the respondent objected to the applicant being permitted to advance grounds of appeal based on the new evidence as they were said to be inimical to the manner in which the trial was conducted and it was therefore futile for the Court to receive the new evidence. The respondent submitted that, ‘the proposed new evidence could not lead the Court of Appeal to conclude that the conviction should be set aside’.[10] On 17 August 2021, the Court determined that it was ‘neither necessary nor appropriate … to rule finally on the objection at this stage. That will be a matter for the bench which hears the substantive application for leave to appeal … Specifically, that will be a context where the evidence will have been heard and considered.’[11] The Court went on to rule that the respondent’s objection should not ‘stand in the way, at this point, of the applicant preparing and presenting the new evidence ground’.[12]
[10]Vinaccia v The Queen (Ruling) (Victorian Court of Appeal, Maxwell P, Emerton and Walker JJA, 17 August 2021) [5].
[11]Ibid [6].
[12]Ibid [7].
This ruling was based on the need for the Court to hear the new evidence in order to determine whether to uphold the respondent’s objection to the applicant advancing the new evidence grounds. It was necessary for the Court to hear the new evidence in order to decide whether it could lead the Court to conclude that the applicant’s conviction should be set aside.
Theoretically, this meant that in this, the substantive application for leave to appeal, we would hear the new evidence and determine whether to admit it in the substantive application (stage 1). If we determined to admit it, we would then consider its impact on the proposed grounds of appeal that rely on that evidence (stage 2). However, the two stages cannot be sensibly separated. The evidence now sought to be adduced by the applicant which was not adduced at trial should only be received if the Court is persuaded that it must lead to the setting aside of the applicant’s conviction. That requires consideration of the proposed grounds. If stage 2 is determined in the applicant’s favour, stage 1 will fall away.
We therefore decided to hear the evidence and consider its impact on the grounds that the applicant seeks to raise in reliance on that evidence.
(c)The offence of child homicide
Section 5A of the Crimes Act 1958 creates the specific offence of child homicide. That offence is committed when a person by his or her conduct kills a child under the age of six years in circumstances that, but for s 5A, would constitute manslaughter. In this case, at trial the prosecutor alleged child homicide either by unlawful and dangerous act or alternatively by gross or criminal negligence.
Thus at trial the prosecution assumed the burden of proving, in the case of unlawful and dangerous act:
(a)that the applicant committed the act that caused Kaleb’s death;
(b)that the act was committed consciously, voluntarily and deliberately;[13]
(c)that the act involved a breach of the criminal law;[14] and
(d)that a reasonable person in the position of the applicant, performing that act, would have realised that he was exposing Kaleb to an appreciable risk of serious injury.[15]
[13]See Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2; R v Haywood [1971] VR 755; R v Winter [2006] VSCA 144.
[14]Cf manslaughter by criminal negligence: Wilson v The Queen (1992) 174 CLR 313, 333 (Mason CJ, Toohey, Gaudron and McHugh JJ); [1992] HCA 31 (‘Wilson’). See also Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20.
[15]Wilson (1992) 174 CLR 313, 333; [1992] HCA 31; R v Holzer [1968] VR 481, 482 (Smith J). See also R v Klamo (2008) 18 VR 644; [2008] VSCA 75.
Or, in the case of criminal negligence, the prosecution needed to prove:
(a)that the applicant owed Kaleb a duty of care;
(b)that he breached that duty by criminal negligence — that is, that his conduct involved a great falling short of the standard of care which a reasonable person would have exercised in all of the circumstances, and that there was a high risk that death or serious injury would result from that conduct;[16] and
(c)that the breach of that duty of care caused Kaleb’s death.
(d)Factual overview
[16]Nydam v The Queen [1977] VR 430, 444 (Young CJ, McInerney and Crockett JJ); Bouch v The Queen (2017) 270 A Crim R 478, 505 [107] (Priest JA); [2017] VSCA 86. See also Aston v The Queen [2019] VSCA 225, [59], [63] (Priest, Beach and Kaye JJA).

The discussion within our analysis of the grounds of appeal will be more readily understood against a broad factual background of relevant and undisputed facts. We will examine the evidence, where necessary, in greater detail when considering the individual grounds.
Kaleb Baylis-Clarke was born to Erin Baylis-Clarke on 4 October 2015 at Casey Hospital. Kaleb’s birth was by emergency caesarean section after plans for a natural birth were abandoned. Kaleb was delivered after a healthy pregnancy, although he was undersized for a normal term baby. The circumference of his head was in the third percentile for newly born infants.[17]
[17]Meaning 97 per cent of newly born infants have a greater head circumference than Kaleb did.
Partway through her pregnancy Ms Baylis-Clarke had separated from Kaleb’s father, Shannon Spackman. Ms Baylis-Clarke stayed with her mother for the balance of her pregnancy, then moved in with her sister, Sarah Baylis-Clarke, and her sister’s partner, Sean Bertram, at an address in Cranbourne West.
The applicant had previously lived with Natalie Van Bree. They shared a child, Wyatt, born in December 2014, although the relationship did not survive beyond 2015. The applicant knew Ms Baylis-Clarke from his school days and in late 2015 they reconnected through social media. A relationship developed and they were effectively partners from towards the end of 2015. The relationship evolved quickly and by about Christmas 2015 the applicant had moved into the Cranbourne West house. The applicant was then 22, and Ms Baylis-Clarke 21. He was an intermittently employed bricklayer, and she resumed work around November 2015 as a waitress.
Kaleb was brought home on about 7 October 2015 to an immaculately kept house. Ms Baylis-Clarke was a caring and proud mother. The applicant was actively involved in Kaleb’s care and in housekeeping more generally. On occasions the applicant would bring Wyatt, then about one year old, to the Cranbourne West house.
There was a living room area in that house where a play mat and play equipment had been set up. A change table was nearby, as were a bouncer, a rocking chair and a couch for a small child. Kaleb’s cot was in the children’s bedroom and was a few metres from his play mat and the change table.
Over the course of October, November and December 2015 Kaleb was regularly assessed by maternal and child health nurses. No particular concerns were raised by the nurses about his health, although Ms Baylis-Clarke became concerned about the apparently disproportionately increasing size of Kaleb’s head.
Kaleb was seen by his mother’s general practitioner Dr Belinda Zhou at the Camms Road Medical Centre in Cranbourne on three occasions:
•On 17 November 2015 for vaccinations.
•On 4 January 2016 for vomiting that was thought to be connected to reflux.
•On 11 January 2016 for the purpose of having his head circumference measured and examined. At that stage the circumference of Kaleb’s head was at the 85^th percentile. While Ms Baylis-Clarke later raised concerns about bruising to Kaleb’s ear and showed a photograph of this to the emergency department doctor at Monash Medical Centre (‘MMC’), Dr Zhou gave evidence that she was not shown any photograph of the bruise to Kaleb’s ear during this appointment and did not recall any concerns being raised about bruising at any stage.
On 14 January Ms Baylis-Clarke and the applicant took Kaleb to the Casey Hospital. Ms Baylis-Clarke had noticed an egg-shaped protrusion in the top centre of Kaleb’s head and called the applicant at work to ask him to come home, which he did. A raised fontanelle was diagnosed. At about this time Kaleb’s vomiting increased. After waiting for some hours Kaleb was transferred to the emergency area, and an ultrasound examination of his head was performed. Kaleb was transferred to MMC later that day.
We will examine the investigations undertaken and the resulting findings in more detail later in these reasons. For present purposes it is sufficient to state that Kaleb’s head was observed to be abnormally large, and that it had grown at a concerning rate. An MRI was conducted on 15 January and mild ventricular dilation was observed together with small bilateral frontal subdural hygromas. No intra-axial haemorrhage was observed and this fact was noted.
The neurosurgical team reviewed Kaleb and considered performing a diagnostic tap of his fontanelle, but Kaleb’s improving condition led the team to decide against such a course. He was discharged on 17 January for outpatient follow-up.
Kaleb returned home apparently more settled, happy and active, although he seemed to his mother to ‘sleep a lot’. His mother thought he was ‘basically back to normal’. Ms Baylis-Clarke was concerned enough, however, to cancel her waitressing commitments for the next week — from 17 to 23 January. She said that she ‘just wanted to be [at home] to make sure he kept improving. They said, if he did go downhill again, to bring him straight back, so I didn’t want to risk not being able to do that.’ On 20 and 21 January Ms Baylis-Clarke texted the applicant on a number of occasions expressing concern that Kaleb was still unwell and vomiting regularly.
We should emphasise that it was no part of the prosecution case that Kaleb’s enlarged head or apparent bruise to the ear area or any other pre-23 January condition or injury were caused by any wrongful conduct by the applicant or anyone else.
On 23 January Kaleb woke early. Ms Baylis-Clarke played with Kaleb for a while until he went back down for a sleep. The applicant assisted with his care. Kaleb appeared to visitors to be well and happy during that part of the morning, although when he awoke he appeared to his mother to be grizzly and overtired. In the afternoon the applicant and Ms Baylis-Clarke took Kaleb to Fountain Gate shopping centre. They returned home at about 3:45 pm. The applicant gave Kaleb a bottle. Kaleb was on his mat playing, happy and alert, when his mother left for work at about 4:30 pm. Kaleb seemed tired but well when Sean Bertram and Kaleb’s aunt Sarah left to go out for dinner at 6:00 pm.
The applicant was then alone with Kaleb in his care. During this time he engaged with Shannon Spackman on Facebook. Mr Spackman had shared an apparently provocative post implying that he was being denied appropriate access to Kaleb. The applicant responded to the post, saying that he thought it was inappropriate. Messages were exchanged between them during which Spackman stated that he was Kaleb’s father, not the applicant, and that he would ‘appreciate it if [the applicant] wouldn’t post photos with [his] son every day.’
In a record of interview that police conducted on 26 January 2016 the applicant admitted, in substance, that:
•He put Kaleb down ‘a bit hard’ as he was angry about a Facebook post made by Shannon Spackman.
•He picked up Kaleb from the play mat ‘a bit hard’ and placed him in his bed ‘like, pretty rough’.
•He was ‘just feeling … angry’.
•He placed him down ‘probably a bit hard’.
•He had his hand under Kaleb’s head (which he demonstrated) and placed him down on the bed ‘so probably hit his head a bit hard on the bed’. He then wrapped Kaleb up in a blanket.
•It was ‘a bit of a … swing’ (which he again demonstrated) as he placed Kaleb in bed. This was not a backward-and-forward motion, but ‘one motion’.
•When he carried Kaleb to his cot it could have been ‘a bit bouncy and stuff’.
•He went back into the bedroom half an hour later to check Kaleb for wind and to check on him because of the way he had placed him down.
•He thought at this point, ‘maybe I did hurt him’.
•Kaleb cried for between five and 10 minutes when put down.
•He believed his actions ‘possibly’ caused Kaleb’s injuries.
Questions 434–7 of the record of interview consist of the following sequence of questions and answers:
Q[I’ll put it to you that when you’ve picked Kaleb up on] Saturday afternoon that you’ve shaken him with — with quite significant force. What do you say to that?
A       Possibly when I lifted him up, yeah.
Q       Is it you don’t remember or - - -
A       No, I was just frustrated and stuff. Like, I just picked him up ---
Q       Yeah.
A       - - - And then I went in there and then it frustrated me, yeah.
Q       So just - - -
A       And put him in bed, yeah.
We are of the view that this sequence of questions and answers did not constitute admissions to any more than was previously admitted by the applicant, and is not capable of constituting an admission to applying violent shaking with accelerative and decelerative force. Senior counsel for the respondent to this application, having considered this sequence of questions and answers, accepts that it did not constitute an admission to shaking Kaleb repeatedly with rapid accelerative and decelerative force.
At 6:45 pm Ms Baylis-Clarke received a message from the applicant to the effect that Kaleb was not breathing and was ‘acting funny’. At 6:46 pm the applicant called ‘000’ for an ambulance. The operator advised the applicant to perform CPR until the arrival of paramedics, which he did. Paramedics arrived at 6:54 pm and found Kaleb to be in cardiac and respiratory arrest. They were able to restore cardiac output and Kaleb was transported to MMC in a critical condition.
In the immediate period following Kaleb’s collapse, the applicant gave the following accounts:
(a)While paramedics were attempting to revive Kaleb, he told a CFA officer that he last saw Kaleb when he put him to bed half an hour before returning to check him. When he checked on Kaleb he was unable to wake him. Kaleb was gasping heavily every five to 10 seconds. The applicant said he tried to wake the baby and picked him up. He then realised the baby was unresponsive and floppy and that his breathing had stopped. He called Ms Baylis-Clarke and then ‘000’;
(b)He told other paramedics that he put Kaleb down at 6:00 pm, and went to check on him and change his nappy at 6:30 pm, when he found him unresponsive, not breathing and blue;
(c)Karen McBride, the aunt of Mr Spackman, arrived at the house with Mr Spackman. The applicant also told her that he had fed Kaleb, put him to bed, and when he had checked on him half an hour later, he was not breathing;
(d)In the car ride to the hospital, the applicant told Mr Spackman, Ms McBride and Lisa Glendenning (Mr Spackman’s mother) that he had fed Kaleb, put him to bed, checked him half an hour later, lifted him out of the cot to change his nappy and then realised Kaleb was limp and unresponsive. He stated that he would never forgive himself if anything happened to Kaleb.
(e)At the hospital, the applicant told Mr Bertram, the partner of Sarah Baylis-Clarke, that Kaleb was limp when he picked him up and that he had stopped breathing. While at the hospital the applicant was obviously distressed.
(f)Kaleb’s maternal great-grandmother, Joyce Clarke, noting the applicant’s visible distress, asked that he be taken to a private room so that a nurse could examine him. Ms Clarke remained in that private room with him. She said that at some point Mr Vinaccia sat up on the bed, put his head in his hands and said, ‘It’s all my fault.’ Ms Clarke asked him what had happened, and what was ‘all his fault’. The applicant told her he had fed Kaleb and then put him on the play mat, where he fell asleep. He had then picked Kaleb up, put him in his bed and returned to the lounge room. Half an hour later he had thought he should check Kaleb. He had found Kaleb lying with his eyes wide open and thought he might need his nappy changed. He had picked Kaleb up and he was ‘dead in his arms’.
(g)On 25 January 2016, the applicant told forensic paediatrician Dr Joanna Tully that he had fed Kaleb and put him to bed at 5:00 pm.[18] He had checked on him half an hour later, and found that Kaleb had soiled his nappy. He had picked him up. Kaleb’s arms were floppy, his eyes were open, his arms were stiff and he was not breathing. The applicant had changed Kaleb’s nappy before contacting Ms Baylis-Clarke. He had then dialled ‘000’ and was given CPR instructions. Kaleb was vomiting and blue-purple in colour.
[18]This is probably an error either on the part of the applicant or of Dr Tully (in documenting the conversation). All other evidence suggests Kaleb was put down at 6:00 pm. The Crown did not make anything of this either in this Court or at trial.
Kaleb was taken to MMC. He did not present with any bruising, skin discolouration or redness on any part of him. Tests taken on 23 January revealed that the extra-axial space[19] was greater than might have been expected, there was evidence of recent bleeding in the subdural space and there were no observable skull fractures.
[19]The space within the skull but outside the functional tissue of the brain, encompassing the subdural and subarachnoid spaces.
An ophthalmology consultant conducted retinal examinations on Kaleb on 25 and 26 January. Multiple retinal haemorrhages were observed bilaterally, including at the posterior pole[20] and retinal periphery.[21]
[20]The rear portion of the retina, including the macula.
[21]The area of the retina outside the macula.
On 27 January Kaleb was found to have no brain activity. An MRI conducted on that day demonstrated that Kaleb had suffered a brain injury.
On 30 January, with the acquiescence of his parents, Kaleb’s life support was withdrawn. He died at 10:02 am.
On 26 January, at the behest of police, Ms Baylis-Clarke participated in a covertly recorded conversation with the applicant. She asked him whether he had done anything on the night of 23 January that might have contributed to Kaleb’s medical condition. The applicant denied being rough with Kaleb or shaking him. Shortly after that conversation, a police officer asked the applicant, ‘Is there anything you want to tell me?’ The applicant then stated, ‘The only thing I can think of is that I put Kaleb down in his cot a bit hard.’
An ‘informal’ record of interview, and later a ‘formal’ record of interview, were conducted between the applicant and police on 26 January. The substance of the applicant’s answers are set out at [34] of these reasons. The applicant was initially charged with recklessly causing serious injury. Subsequently the offence of child homicide replaced this charge.
No objection was taken at trial to the admissibility of the pretext conversation, or of the subsequent police interviews, and indeed the applicant relied on their content as part of his defence.
Dr Tully provided the opinion that Kaleb had died as a result of a traumatic head injury, most likely caused by acceleration and deceleration and rotational forces. A clinical exome trio analysis performed on Kaleb by Professor Martin Delatycki, geneticist, revealed no evidence of any underlying bleeding disorder or connective tissue disorder.
A post-mortem examination was conducted on 1 February 2016 by Dr Linda Iles, a forensic pathologist employed by the Victorian Institute of Forensic Medicine (‘VIFM’). She concluded that Kaleb had suffered a severe brain injury with extensive bilateral retinal haemorrhages. There was no evidence of bruising to the under-surface of the scalp such as to indicate impact. All evident bruising was attributable to medical intervention. Widespread subdural haemorrhages were evident, as were deficiencies in the bridging veins.[22] Patchy subarachnoid haemorrhages were also seen, along with severe hypoxic ischaemic encephalopathy. It was this encephalopathy that led to necrosis of parts of the brain as a consequence of lack of oxygen. Ischaemic myelopathy to the spinal cord was also observed.
[22]The blood vessels extending from the surface of the brain to the under surface of the skull.
Thus the post-mortem examination demonstrated severe brain injury, and that a head injury caused Kaleb’s death. The likely mechanism of that head injury was shaking and/or impact trauma.
As indicated, we shall return to the evidence of Drs Tully and Iles at trial when considering the individual grounds of appeal.
Other evidence was adduced at trial. This included:
•Accounts of Kaleb’s appearance and affect in the week between his 14–17 January hospital admission and his ultimate collapse on 23 January. Sarah Baylis-Clarke said that Kaleb was ‘a bit sooky’ and ‘just wanted to be held all the time’, that ‘[t]hroughout the week he began to vomit a little bit after feeding’ and that this was out of the ordinary. Joyce Clarke saw Kaleb at a baby shower to which medical staff had allowed his mother to take him during his first hospital admission. She observed that ‘he didn’t look very well’, seeming ‘a bit lethargic’, and she was surprised that medical staff had allowed him to leave the hospital. After Kaleb’s ultimate discharge from hospital, Ms Clarke observed that Kaleb still ‘didn’t look quite right’ and looked sleepy.
•Accounts of the swelling on Kaleb’s head and his mother’s concerns about it. Neville Holden, Ms Baylis-Clarke’s stepfather, visited the Cranbourne West address on the morning of 23 January. Ms Baylis-Clarke told him that Kaleb had been sick a lot so she had taken him to hospital and fluid had been found on his brain. Mr Holden observed that Kaleb still had some swelling on his forehead, which he pointed out to Ms Baylis-Clarke. She told him that it was ‘nothing compared to what it was like’. Ms Clarke recalled that around mid-January, immediately prior to Kaleb’s first admission to hospital, Ms Baylis-Clarke had expressed concerns to her about ‘a bit of swelling’ on Kaleb’s head and stated she planned to take him to the doctor.
•Maryanne Florisson, the mother of the applicant’s former partner and grandmother of his child, Wyatt, gave evidence that when Wyatt was three or four weeks old, she witnessed the applicant yelling at the crying baby, saying, ‘Shut up, shut the fuck up’, holding him under the armpits and shaking him. This evidence was admitted as tendency evidence, said to support a tendency of the applicant to ‘act out violently towards young children when in a state of anger or frustration’.[23]
[23]As expressed in the Amended Tendency Notice filed prior to the commencement of the first trial.
Against this background it is convenient to begin by considering ground 5.
GROUND 5
Ground 5 does not rely on the evidence of the Scandinavian witnesses (collectively, the ‘Scandinavian evidence’), and is formulated as an orthodox challenge to the jury’s verdict on the ground that it is unsafe and unsatisfactory. Pursuant to s 276(1) of the Criminal Procedure Act, a court must allow an appeal against conviction if the appellant satisfies the court that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
This section, and others like it, have received considerable curial scrutiny since its enactment in 2009. The following general propositions can be extracted from the authorities:
•To succeed an appellant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his or her guilt of the offence charged.[24]
•In determining this question the court must make its own independent assessment of the evidence, giving full weight to the jury’s advantage in seeing and hearing the witnesses.
•The jury is the ‘constitutional tribunal for deciding issues of fact’.[25] To set aside a jury verdict on the grounds that it is unreasonable is a ‘serious step’ and not to be taken without particular regard to the jury’s advantage in seeing and hearing the evidence.[26]
•In most cases a doubt experienced by an appellate court will be a doubt that the jury ought to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[27]
•In a circumstantial case, a jury may only be satisfied beyond reasonable doubt of the accused’s guilt if the circumstances are capable of excluding any reasonable hypothesis consistent with innocence.[28]
[24]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’); SKA v The Queen (2011) 243 CLR 400, 405 [11] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
[25]Hocking v Bell (1945) 71 CLR 430, 440 (Latham CJ); [1945] HCA 16, quoted in R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Bell, Keane and Gordon JJ); [2016] HCA 35 (‘Baden-Clay’).
[26]Baden-Clay (2016) 258 CLR 308, 329 [65]; [2016] HCA 35.
[27]M (1994) 181 CLR 487, 494–5 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.
[28]Barca v The Queen (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ); [1975] HCA 42, quoted in Baden-Clay (2016) 258 CLR 308, 324–5 [46] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.

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.
Dr Jame told Dr Tully that on his 23 January admission to MMC, Kaleb was critically unwell with subdural haemorrhages on both sides of his brain. CPR had been performed for a period of approximately 20 minutes before he was transported to hospital. On arrival at MMC emergency department, Kaleb had a Glasgow Coma score of 3, meaning he was unconscious and unresponsive. Both pupils were fixed and dilated, meaning they did not respond normally to light. His heart rate was 130, he had been intubated and a needle had been inserted into his shin bone in order to administer fluid and drugs. A ventricular tap was performed: about 60ml of bloodstained fluid was withdrawn from around Kaleb’s brain. A CT scan showed acute subdural haemorrhages on both sides of the brain, causing him to be transferred to the paediatric ICU where a second tap of intracranial fluid was performed. Dr Jame told Dr Tully that on 24 January Kaleb had an MRI scan, which showed extensive hypoxic damage to his brain, meaning damage resulting from lack of oxygen. Dr Tully said that this overall presentation — an infant who was critically unwell following a sudden collapse which resulted in his heart and breathing stopping, with subsequent CT and MRI scans giving findings that ‘raised concerns about how that had been caused’ — had prompted Dr Jame to refer Kaleb to VFPMS.
On 25 January Dr Tully spoke with the applicant about the events leading to Kaleb’s admission on 23 January. He told her that he had been caring for Kaleb while Ms Baylis-Clarke was at work. He had fed Kaleb his bottle between 4:30 and 5:00 pm, after which Kaleb fell asleep on his play mat. Kaleb did not take the whole bottle, though this was not unusual, and he did not vomit. The applicant told Dr Tully that he had put Kaleb in his cot at around 5:00 pm[29] and had then gone to check on him after about 30 minutes. The applicant said that it was apparent that Kaleb had soiled his nappy so he went to lift him out of the cot to change it. Kaleb was not breathing and he was floppy when picked up, though his heart was beating. His eyes were open and his arms were stiff. The applicant told Dr Tully that he had changed the baby’s nappy and then messaged Ms Baylis-Clarke to tell her that something was wrong with Kaleb. He had then listened to Kaleb’s chest and found that his heart had stopped beating. At this point, the applicant told Dr Tully, he called ‘000’ and was instructed on how to perform CPR on an infant by the call-taker. The applicant said that vomit kept coming out of Kaleb’s nose and he kept wiping it away. Kaleb was blue-purple in colour.
[29]See [18] above.
In order to inform her ultimate assessment, Dr Tully also took a history of her pregnancy from Ms Baylis-Clarke. She was told that the pregnancy was unplanned but that she was happy about it. Ms Baylis-Clarke had a viral infection during her pregnancy and was induced at 37 weeks (almost full-term) because Kaleb was not growing well and his movements had decreased. As we have mentioned, Kaleb was born by caesarean section, weighing 2.52 kilograms, which Dr Tully said was ‘a bit small’. He was well following delivery, no problems were identified and he was discharged on his fourth day of life. Ms Baylis-Clarke said he was generally well and had been an easy baby to care for. He was not on any medications and had his first round of immunisations.
(ii)14–17 January hospital admission
Dr Tully gave more detailed evidence about Kaleb’s 14 January admission to MMC, based on what she was told by Dr Jame. On that day he was taken to the emergency department at Casey Hospital, with vomiting (about five times a day) and an increasing head circumference. As previously outlined, his mother was also concerned about his raised fontanelle, which she described as being ‘like an egg on his head’, his intermittent crying and his reduced appetite, only taking about half the volume of milk he normally would. Ms Baylis-Clarke reported that he was otherwise developing well, was able to hold his head up and was smiling. His maternal and child health nurse had referred him to the paediatric outpatients clinic as she was concerned about his abnormally increasing head circumference. Dr Jame said that Ms Baylis-Clarke had reported previous unexplained bruising to Kaleb’s ear during her presentation at Casey emergency department, and to her GP, Dr Zhou. No bruising was visible on examination at Kaleb’s admission on 14 January, however.
The ultrasound referred to above was performed by Dr Monica Pahuja. That ultrasound found that two of Kaleb’s ventricles[30] were ‘a little bit bigger than they normally would be’ and that his extra-axial spaces appeared to be larger than they should have been. Dr Pahuja also noted probable fluid in the subdural space. This ultrasound revealed no evidence of bleeding either within the brain tissue or around the surface of the brain, however she recommended an MRI scan to be sure. In her evidence Dr Tully said that any observed bleeding would have been a significant finding.
[30]Spaces in the centre of the brain filled with craniospinal fluid.
The MRI scan was performed on 15 January at MMC, and reported by radiologist Dr Poonam Thakur. This confirmed the ultrasound finding that the ventricles were ‘a little larger than they normally are’ and that there were small bilateral subdural hygromas[31] in the frontal area of Kaleb’s head. Again, there was no evidence of haemorrhage either within the brain tissue or around the brain. As such, the MRI findings, though providing more detail, were not essentially any different from those of the ultrasound; they confirmed that the fluid detected by the ultrasound was subdural fluid (ie hygromas).
[31]Collections of fluid in the subdural space. The fluid has the same or similar signal intensity as craniospinal fluid.
Kaleb was reviewed by the neurosurgical team on 17 January. They asked whether there was any history of a fall and noted that Kaleb’s feeding had improved since his admission. They noted that his fontanelle was full, or ‘a bit bulgy’, and also noted his head circumference. Having regard to the MRI findings, the team considered whether to extract fluid from the area (ie perform a tap) in order to exclude the possibility that the fluid contained blood. As mentioned, this course was ultimately abandoned.
In cross-examination, Dr Tully conceded that a tap of the fontanelle serves a therapeutic as well as a diagnostic purpose, reducing pressure on the brain, and that she ‘would have liked for [the tap] to have been done’ on Kaleb, as well as an examination of his eyes to check for retinal haemorrhages — which was also not performed — during this first hospital admission.
Dr Tully conceded that, due to the failure to perform a tap of Kaleb’s fontanelle between 14 and 17 January, there remained a reasonable possibility that raised intracranial pressure may have persisted beyond that time, and, due to the failure to conduct an eye examination, ‘we don’t know whether he had retinal haemorrhages at that stage or not’. Dr Tully accepted that the gold standard for observation of retinal haemorrhages was to examine the eyes within 24–48 hours of a patient’s presentation. However, while it could not be known whether Kaleb had retinal haemorrhages during his first admission, even if he did, they would not have been the same retinal haemorrhages seen on 25 and 26 January, as retinal haemorrhages almost always resolve within a week. The appearance, pattern and distribution of the retinal haemorrhages seen in Kaleb during his second admission indicated that they were recent.
(iii)23 January hospital admission and Dr Tully’s examination of Kaleb
Dr Tully examined Kaleb herself on 25 January, following his second admission to MMC on 23 January. At this point, Kaleb was ‘critically unwell’ and in the ICU. Her examination was ‘very limited’ and largely confined to a visual inspection of the front of Kaleb’s body due to his fragile condition and the risk that moving him would result in clinical deterioration. Kaleb was connected to a life support machine. Dr Tully observed a small amount of dried blood around his nostrils but no visible skin injury. His pupils were small and not reacting to light. His tummy felt soft and there was no indication that that physical examination was causing him any pain.
Dr Tully found no ‘grasping injuries’ to Kaleb’s trunk, and no skeletal injuries. She could not say whether there was any trauma to the third or fifth cervical spine resulting from hypertension or hyperflexion to the neck as no MRI scan was performed on Kaleb’s spine. She conceded that this is a procedure now performed on every child ‘in these circumstances’, but was not routine at the time of Kaleb’s death.
At this point Kaleb’s head circumference was around 44 or 45 centimetres, which placed him in the 95^th percentile for his age and gender.
A number of examinations were undertaken in order to determine the causes of Kaleb’s clinical presentation. Blood tests excluded any blood-clotting disorder, any problems with his kidney function, liver function, the chemistry of his bones, enzymes produced by his heart and pancreas, his blood sugar level, and any evidence of infection. Kaleb’s craniospinal fluid was checked for any infection, and studies were performed to detect any viruses. His urine was checked for infection and for any drugs of abuse. A metabolic screen was performed, to check for any underlying metabolic disorder. None of these investigations revealed anything of significance to Kaleb’s presenting condition.
A CT scan of Kaleb’s head conducted on 23 January showed enlarged extra-axial spaces and evidence of recent bleeding in the subdural space which extended into the parafalcine region.[32] No skull fracture was shown.
(iv)Working diagnosis of inflicted head trauma
[32]The large groove extending down the centre of the brain.
At the conclusion of the various tests and investigations carried out on Kaleb, the working diagnosis was formed that he had a head injury caused by IHT. This diagnosis, Dr Tully said, is one that must be made with care and with rigorous attention to detail. It arises, she said, as a result of a ‘constellation’ of findings, including subdural haemorrhage of a particular pattern, distribution and location within the subdural space;[33] evidence of damage to the brain itself; retinal haemorrhages of a particular pattern and distribution (collectively, the ‘triad injuries’[34]); and exclusion of all alternative causes.
(v)Retinal examination
[33]The medical experts in this case appeared to use the terms ‘subdural haemorrhage’ and ‘subdural haematoma’ interchangeably. For ease of reference, we shall refer to these phenomena as ‘subdural haemorrhages’.
[34]We use the term ‘triad injuries’ to describe the clinical features of subdural haemorrhage, retinal haemorrhage and encephalopathy. In using this term we are not assuming that the injuries were caused by the application of external force.
Dr Tully gave evidence that a retinal examination of Kaleb was performed by ophthalmology consultant Dr Sophia Leikin on 25 and 26 January, examining one eye on each day. Dr Leikin detected in both Kaleb’s eyes multiple retinal haemorrhages including the posterior poles and retinal peripheries. This meant there were ‘lots and lots’ of areas of bleeding, extending from the centre to the very edges of the retina.
In Dr Tully’s opinion, the retinal haemorrhages observed on the 25 and 26 January would have existed on 23 January.
(vi)Dr Tully’s findings and diagnosis
Based on her own examinations, consultations with specialists and records, Dr Tully found that Kaleb had the following conditions:
•Recent subdural and subarachnoid haemorrhages on both sides of the brain on a background of subdural hygromas.
•Mild dilatation of the spaces inside his brain, ‘which can be called hydrocephalus sometimes’.
•Big extra-axial spaces; in total, the subdural and subarachnoid spaces were bigger than they should have been.
•An increasing head circumference.
•Chronic symptoms of vomiting and drowsiness.
•A past history of unexplained bruising to the ear.
•Widespread, multi-layered retinal haemorrhages in both eyes.
•A severe hypoxic ischaemic brain injury, resulting from a lack of oxygen and blood supply.
Dr Tully’s diagnosis based on these findings was, in the absence of an explanation involving significant trauma (meaning accidental trauma), IHT. She stated, ‘I think the combination of these findings, when an infant has been fully investigated for any other medical reason and there’s no history of significant trauma, then we don’t have another diagnosis other than inflicted head trauma.’ She further stated that ‘the current understanding is that … that combination of findings is most likely to be caused by forceful shaking with or without associated impact against a firm surface’.
Under cross-examination, Dr Tully agreed that in order to form her expert opinion, she relies in part upon the interpretations and reports of other medical specialists (radiologists, ophthalmologists and, to some extent, pathologists, interpreting blood tests).[35]
[35]Though she would only agree to this proposition ‘partly’ in cross-examination, she stated exactly this as a limitation to her expert opinion in her first written report.
Dr Tully also accepted that Kaleb had pre-existing conditions prior to 23 January 2016, including enlarged extra-axial spaces, and that this condition may have predisposed him to subdural haemorrhage, which can occur in those circumstances either spontaneously or with ‘trivial’ forces.
She did not accept as a reasonable possibility that Kaleb’s enlarged extra-axial spaces and subdural fluid may have rendered him more vulnerable to the injuries with which he presented on 23 January. While she agreed that this ‘pre-existing abnormality inside [Kaleb’s] head’ may have slightly increased his risk of subdural bleeding (although the converse could also apply, given that the fluid cushions the brain against impact against the skull), that vulnerability did not extend to the retinal haemorrhaging in the pattern and severity that was observed.
(vii)Causal connection between shaking and triad injuries[36]
[36]Dr Tully clarified during her evidence that ‘the triad’ is a term applied more often in legal settings than in medical settings, though it is ‘rightly associated with the three features: subdural haemorrhage, retinal haemorrhage and damage or disruption to the brain, encephalopathy’.
Dr Tully explained the connection between forceful shaking and the triad injuries in infants as follows:
So, what happens when you shake a baby: a baby has a relatively big head compared to its body which is relatively heavy. And as you probably know, babies also have relatively weak necks, and babies, it takes a while for them to be able to lift their head, they need to strengthen their neck. What happens when you shake a baby is that generally the baby is grasped around the chest and forcefully shaken backwards and forwards. What that does is, it means that the baby’s head goes back and forwards and round and round, poorly supported by a relatively weak neck and shoulder musculature; they can’t splint their head, so their head is moving in multiple directions back and forward, and we call that acceleration–deceleration and rotational movement which causes/applies forces to the baby’s head. That means that the brain, which is very, very soft in an infant, much softer than it is in an older child or adult, what happens to the brain is, it moves back and forwards within the skull which is fixed. What that causes is for the brain itself to sustain some damage, by banging effectively back and forward and side to side against the skull, and that those bridging veins that we talked about earlier that go from the surface of the brain up to the inner table of the skull are stretched and sometimes torn; that results in subdural bleeding. In addition, a similar process happens within the eyes. So those layers of the retina actually sheer against one another to cause retinal bleeding within the layers, and the jelly-like substance inside your eyeball moves back and forward against the retina itself, causing [bleeding] in other parts of the retina, so you get this pattern of multilayered retinal haemorrhages. The third part of this is that there is damage, we think, to the upper part of the spinal cord as it comes up through that hole and to the brainstem that sits down there at the base of the brain, so there is disruption to some of the … nerve centres … in there, that results in the infant stopping breathing, problems to their heart rate, et cetera. That therefore results in a reduction or a loss of oxygen supply to the brain. That, in combination with probably some direct damage to the tissue of the brain from the movement, means that you get injury — hypoxic ischaemic injury to the brain. It starts to swell. Like anything does when you injure it, you get inflammation and swelling. That process, and it’s very complex and we don’t fully understand it, that process of swelling probably further reduces the blood supply to the brain, because it’s basically squashing the blood vessels, so you get what is called a secondary cascade of events within the brain that makes the actual damage to the brain sometimes unsurvivable [sic].

Dr Tully clarified that it is probably the combination of direct damage to the brain caused by shaking and damage to the spinal cord and brainstem that results in the cessation of breathing and cardiac arrest, rather than the subdural haemorrhages themselves.
She stated that the action or event that would cause cardiorespiratory arrest as a result of brain injury of this nature would almost certainly have occurred very closely in time to the infant’s collapse. In particular, retinal haemorrhaging of the pattern and severity seen in Kaleb was ‘indicative of significant, high-level forces being applied to Kaleb just prior to his collapse’.
(viii)Significance of other indications: absence of external injuries; torn bridging veins; increased head circumference; raised intracranial pressure; history of ill health
Kaleb’s lack of any external injuries, such as bruising or fractures, did not alter Dr Tully’s opinion that his injuries were caused by inflicted head trauma. She stated that ‘probably about half, maybe slightly less than half’ of babies with inflicted head trauma also present with bruising, and that some literature holds that a quarter, or up to two thirds of such babies present with fractures, ‘but certainly not all of them’.
Dr Tully agreed that rib fractures are thought to arise from compressive forces such as squeezing on the chest. She agreed that fractures at the end of long bones (eg those in the limbs) are, when seen, important ‘in terms of the mechanism’ but are not always seen in cases of AHT.
Dr Tully stated that torn bridging veins (the condition of which can only be determined at autopsy) indicate that trauma has occurred.
As to Kaleb’s increasing head circumference, Dr Tully stated that weighing the significance of this was difficult. While she could not determine the rate at which it was growing based on the number and intervals of measurements available to her, she confirmed that Kaleb’s head circumference had increased ‘more than it should have done’ and the rate of the increase was ‘concerning’. She stated that the likely cause of the increase was the ‘enlargement of the space between his brain and the skull and fluid in the subdural space that shouldn’t be there, as well as those … fluid-filled spaces in the centre of his brain being a little bigger’, as shown on the ultrasound and MRI scans conducted during Kaleb’s 14–17 January admission. Her opinion, however, was that the increasing rate of growth and abnormal size of Kaleb’s head was not the cause of his death. She further stated that the increased head circumference was not caused by the internal trauma to Kaleb’s head seen at the time of his 23 January admission; it was likely attributable to a previous event, related to the fluid identified during his first hospital admission. Kaleb’s collapse on 23 January was, in Dr Tully’s opinion, caused by a supervening event: ‘Something has happened in the interval [between Kaleb’s two hospital admissions], almost certainly just before he collapsed, to cause that.’
As stated above, Dr Tully conceded the reasonable possibility that Kaleb continued to experience raised intracranial pressure beyond the time of his 17 January discharge from MMC. She accepted that the discharge summary of Casey Hospital had indicated Kaleb had ‘sunsetting eyes’, which is a clinical indication for ‘quite significant’ raised intracranial pressure of some duration. She also conceded that she had not known that sunsetting eyes had been observed in Kaleb when she had reached her conclusions as to the cause of Kaleb’s injuries. Dr Tully did not, however, view the clinically observed sunsetting eyes as relevant to her diagnosis because they were observed only by one middle grade doctor, and were not documented by the paediatric consultant or neurological consultant. She stated that ‘the relevance of [Kaleb’s] raised intracranial pressure to his final presentation is … a complex issue’.
Dr Tully stated she was aware that Kaleb had ‘not been his normal self’ for about a month prior to 23 January, that he had been vomiting (including in the two immediately preceding days) and drowsy, and that he had had raised intracranial pressure and subdural fluid. This did not, however, affect her assessment. She did not resile from her statement during the first trial, that, ‘[i]n an infant that … was previously well who collapses at home with severe hypoxic brain injury, that particular pattern and distribution of subdural haemorrhage and the particular pattern and distribution of retinal haemorrhages, there’s very few other causes’. She stated that, in the context of a sudden collapse, it is the relative stability of the child’s condition in the preceding period that is relevant:
[W]e’re not talking about a baby who for a few hours had been becoming increasingly, increasingly, increasingly unwell. We have a state that he’s more or less stable for a month. Absolutely, there is something going on and we know that, because this child has got fluid inside his subdural space. He has some raised intracranial pressure as a result of that and therefore is not, as Erin identified, hasn’t been his normal self. However, when he suddenly collapsed it is that rapid and sudden change that’s important.
(ix)Level of force required to cause triad injuries
Dr Tully stated that it is not possible to measure the magnitude of force required to cause the triad injuries, as to do so would require shaking babies with a particular measured force and noting the results. She explained that, in substitute, there have been attempts to produce biofidelic models (models that accurately represent human infants), but that results of studies using different biofidelic models are contradictory, leading to the conclusion that it is not possible to create a model exactly representing a human infant. This meant that the current understanding of the force threshold required to produce the triad injuries was based on, among other things, ‘confessional data’ — data collected from individuals who have confessed to shaking a baby resulting in such injuries. One study based on confessional data found that in every case the forces applied would be described as ‘violent’. Dr Tully stated:
It’s certainly fair to say that these are not forces generated during normal handling, obviously, otherwise we would see this very, very frequently. It’s highly unlikely that they are forces generated during rough handling. So while I can’t … give a figure, I can’t quantify the force, I think … the best we can say, is that these are forces that are well beyond or significantly beyond the normal handling of an infant.
Dr Tully said that retinal haemorrhages in the pattern and distribution observed in Kaleb are ‘really only seen in a few other circumstances … and they are: motor vehicle accidents, high velocity, crush injuries to the head and falls from a height’. She accepted that it would be unusual for a child who had sustained injuries in such a way to present with no external injuries.
Dr Tully conceded that it is not known what effect Kaleb’s pre-existing pathologies, in particular his enlarged extra-axial spaces, would have had on the degree of force required to produce his subdural haemorrhages. She said that this uncertainty did not extend to his retinal haemorrhages, however: ‘[E]nlarged extra-axial spaces in your head don’t affect your eyes, and we know that to cause widespread multi-layered retinal haemorrhages requires significant forces.’
Asked to give some content to the term ‘significant force’, Dr Tully clarified that this meant force ‘well beyond’ ordinary handling. She explained that, as the specific pattern of retinal haemorrhaging seen in Kaleb is only seen in association with trauma in situations of ‘significant force’ such as high-velocity motor vehicle accidents, crush injuries to the head or falls from a height, ‘we can make some assumptions, while we can’t measure it, about [the] level of force required to cause it’.
Dr Tully’s opinion was that the actions demonstrated by the applicant in his record of interview could not account for Kaleb’s injuries as they would not be capable of generating the requisite force. She stated that ‘significant force’ of the kind described above had been applied to Kaleb, based on, at least, two of the triad injuries observed in him: the retinal haemorrhages and severe damage to the brain.
(x)Controversy surrounding connection of triad injuries and level of forces necessary for their production
Under cross-examination, Dr Tully agreed that the finding of the triad injuries (subdural haemorrhage, retinal haemorrhage and encephalopathy) do not ‘immediately and conclusively’ indicate non-accidental injury; they merely raise concerns. She accepted that there is a controversy as to the level of force required to produce these injuries, due to the aforementioned inability to conduct controlled trials of the effects of baby-shaking ethically, or to produce an accurate biofidelic model of a human infant.
She conceded that the available confessional data, on which she based her opinion that ‘violent’ force was required to produce the triad injuries, ‘probably’ did not include reference to a child with the same age, symptoms and history as Kaleb.
Dr Tully did not, however, agree that there was a medical controversy as to the ability to diagnose inflicted head trauma when the triad injuries are present with ‘very specific features’ and a ‘rigorous and accurate medical diagnostic pathway is followed’.
She specified that the term ‘triad’ had a narrow meaning, and the diagnosis of inflicted head trauma could only be made based on the so-called triad elements when each of those elements had very specific features. Retinal haemorrhages were crucial to the ability to make that diagnosis because of their high association with inflicted head trauma.
(b)Dr Iles
As stated above, Dr Linda Iles is a pathologist employed by VIFM. She performed an autopsy on Kaleb on 1 February 2016, pursuant to which she made the following observations:
•Kaleb was well-nourished, and of normal weight and length.
•He had no external signs of injury. Minor bruises were attributable to medical intervention.
•His head circumference was 45 centimetres, being in the 97^th percentile.
•There was no evidence of any bruising (not attributable to medical intervention) of the under surface of the skull which would indicate impact.
•There was no evidence of skull fracture.
Primary or acute findings (relating directly to Kaleb’s collapse) were:
•Extensive subdural haemorrhages on the top and under the surface of the brain and on the membrane between the hemispheres.
•Injury to the bridging veins, which was the cause of the subdural haemorrhages. There were only a very small number of intact bridging veins.
•‘Patchy’ subarachnoid haemorrhages.
•Severe hypoxic ischaemic encephalopathy with extensive cortical, subcortical, cerebella and brainstem necrosis (ie all parts of the brain were severely affected by the hypoxic ischaemic injury), due to inadequate blood and oxygen supply.
•Ischaemic myelopathy, meaning there were ischaemic changes to the spinal cord, also due to inadequate blood supply.
Remote findings (not relating directly to Kaleb’s collapse but to earlier injury) included:
•A chronic subdural membrane, which was evidence of a previous blood collection beneath the subdural space which had since healed.
•A small area of organised left parietal extradural haemorrhages, which was evidence of previous bleeding on top of the dura. The evidence of healing indicated it had occurred prior to Kaleb’s collapse, though the precise time could not be determined.
(i)Cause of death
Severe brain injury due to lack of blood and oxygen was, in Dr Iles’ opinion, the ultimate cause of Kaleb’s death.
No potential cause of the subdural haemorrhages other than mechanical head trauma was identified, and it was Dr Iles’ opinion that that mechanism was shaking and/or impact trauma of the brain, ie a shaking injury. She could not exclude the possibility of impact despite the lack of bruising to the scalp or fracture of the skull, as an impact to a broad, soft surface would be capable of causing Kaleb’s internal injuries without causing those external injuries.
The subdural and subarachnoid haemorrhages were not the cause of Kaleb’s death nor injuries in themselves, but rather the presence of blood in the subdural and subarachnoid spaces was indicative of the mechanism by which the underlying brain was injured. The mechanism indicated was an acceleration–deceleration action, causing the brain to go backwards and forwards inside the scalp. The brain injury was caused by the effect of the acceleration–deceleration force on the brainstem, which controls respiration and heart rate. The consequent dysfunction of the brainstem and resulting lack of oxygen and blood supply was the ultimate cause of catastrophic brain injury.
Kaleb’s injured bridging veins indicated that this acceleration–deceleration force had been applied. The resulting movement of the brain inside the cranial cavity puts tension on these thin and delicate veins, which consequently tear and produce haemorrhaging.
(ii)Eye examination
Dr Iles referred the examination of Kaleb’s eyes externally. They were macroscopically examined and sectioned at St Vincent’s Hospital in Sydney and the sections were examined by a neuropathologist, Dr Michael Rodriguez. The findings from that examination were bilateral optic nerve sheath haemorrhages and extensive bilateral retinal haemorrhages extending from the optic nerve to the ora serrata and involving all layers of the retina.
Dr Iles stated that the more extensive retinal haemorrhages are, the more specific they are as an indication of trauma. Kaleb’s retinal haemorrhages were ‘very extensive’. The presence of optic nerve sheath haemorrhages are also used as an indicator of a traumatic cause of retinal haemorrhages.
Dr Iles said that retinal haemorrhages are a common feature of shaking injuries, though they may be caused by a number of things. Other types of trauma associated with retinal haemorrhages include crushing injuries such as those seen in motor vehicle accidents, occipital impacts or where a heavy object has fallen on a child’s head.
Dr Iles said that her evidence as to retinal haemorrhages was qualified by ascertainment bias — in her function as a forensic pathologist, she only examined the eyes of infants when inflicted injury is suspected. She did not have much experience of the appearance of the eyes of infants affected by accidental trauma. She stated that therefore the opinion of clinicians on the subject of retinal haemorrhages was to be preferred to her own.
(iii)Level of force required to cause Kaleb’s injuries
Dr Iles described the same difficulties that Dr Tully had pointed out in determining with any certainty the level of force required to produce the triad injuries — the lack of accurate biofidelic models for human infants and impossibility of experimenting on real children. The best available indicator of the requisite force was, Dr Iles said, clinical experience, and the frequency with which the triad injuries were presented: ‘[W]hat we know is that we do not see children with this spectrum of injuries often, particularly not this type of catastrophic head injury, so the implication for that is that the force must be significantly in excess of the normal force applied when handling a child.’
Dr Iles made several concessions as to the current understanding of the requisite force. These concessions can be summarised shortly here:
•There is ‘consternation and disagreement’ in the literature about the particular levels of force needed to produce the triad injuries in a normal case.
•It cannot be known with certainty what kind of force beyond normal handling is needed to produce the triad injuries in the normal case.
•The presence of pre-existing conditions such as Kaleb’s makes the uncertainty as to the requisite level of force even greater.
•The pre-existing conditions identified in Kaleb — chronic subdural membrane (evidence of a previous subdural collection) and an expanded subdural space containing blood and/or fluid — created a potential vulnerability the significance of which Dr Iles was unable to determine. There was a reasonable possibility that his pre-existing conditions made Kaleb more susceptible to the injuries he suffered.
•She could not say whether Kaleb’s pre-existing pathology had the capacity to significantly affect the amount of force that might be required to produce the triad injuries, because that data did not exist.
•She could not exclude the possibility of some extant, birth-related issues.
(iv)Whether triad injuries could be caused by the applicant’s admitted actions
Dr Iles reported that whether the triad injuries can be produced by shaking alone, absent some additional impact, has been the subject of significant scientific controversy. She added in her oral evidence that the addition of an impact to a shaking incident would make the forces applied to the brain significantly higher.
Dr Iles agreed that she had not detected any injuries in Kaleb outside of the central nervous system and the eyes. There were no external marks to the trunk, fractures to the ribs or paravertebral region, no skeletal injuries from chips in the bones or from flailing limbs, nor injury to the neck (which might indicate shaking).
Dr Iles conceded that she could not say one way or the other whether the actions the applicant described undertaking in his record of interview, in combination with Kaleb’s pre-existing conditions, caused his injuries. She accepted that what he had said was ‘relatively non-specific and open to a wide range of interpretation[s]’. Given the uncertainties she had conceded as to both the requisite force for the triad injuries generally and the significance of Kaleb’s pre-existing conditions to the requisite force in his case, as well as the vagueness of the applicant’s description of what he did, she did not have an adequate evidential basis to determine whether his description of those events could account for Kaleb’s injuries.
(v)Temporal relationship of traumatic event and collapse
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’).
The applicant advanced his case based on the PowerPoint slides in several distinct, albeit related, ways.
(a)First, he submitted that Dr Tully ought to have disclosed the PowerPoint slides prior to trial and that, had she done so, a useful line of cross-examination would have been opened for the defence.
(b)Second, he submitted that the PowerPoint slides and the evidence of Professors Högberg, Wester and Eriksson demonstrate that Dr Tully gave evidence at trial that was incorrect; namely, her evidence that there is no ‘controversy’ about the use of the ‘triad’ to diagnose abusive head trauma.
(c)Third, he submitted that the PowerPoint slides and the answers given by Dr Tully at trial concerning whether there is a controversy, viewed in light of the evidence of Professors Högberg, Wester and Eriksson, reveal that Dr Tully is an advocate for a cause, not a truly independent expert. As a consequence, he submitted, she breached her obligations as an expert witness as set out in the Expert Practice Note.
In contrast, the respondent submitted that:
(a)Dr Tully was not asked in terms about, and did not comment on, any ‘dispute’ concerning the ‘triad’;
(b)in any event, Dr Tully conceded that there are several ‘controversies’ concerning the ‘triad’, namely:
(i)a controversy as to the mechanism that might produce the relevant injuries and whether they could be caused by ‘impact alone’;
(ii)a controversy concerning the level of force required to produce the ‘triad’; and
(iii)a controversy concerning whether ‘“the degree of existing pathology, natural or otherwise”, might modify the extent and prognosis of the relevant injuries’.
The respondent also submitted that Dr Tully did not find it helpful to speak of the ‘so-called “triad”’ in some abstract sense, divorced from the particular circumstances of a given case. Thus, the respondent submitted, the existence of the ‘triad’ collection of injuries did not ‘immediately and conclusively’ mean non-accidental brain injury, but their presence ‘raised concerns’. The respondent emphasised that Dr Tully’s evidence was specific to ‘the nature and extent of the particular injuries sustained’ by Kaleb — it was in that context that she did not think that the diagnosis of inflicted head trauma was controversial.
In oral argument, the respondent contended that Dr Tully had not been required to disclose the PowerPoint slides, either in her CV or otherwise.
(5)Consideration of the PowerPoint slides
It is convenient to consider first, and separately, the aspect of ground 2 based on Dr Tully’s PowerPoint slides, because it is independent of the evidence of Professors Högberg, Eriksson and Wester.
(a)Were the PowerPoint slides ‘fresh’ or ‘new’ evidence?
The first question to address in relation to the PowerPoint slides is whether they constitute ‘new’ or ‘fresh’ evidence, because this will impact on the manner in which this Court approaches the significance of the evidence.
I agree with Forrest and Emerton JJA that Dr Tully’s PowerPoint slides are properly characterised as fresh, rather than new, evidence. That is because I do not consider that they could, with reasonable diligence, have been produced by the accused at his trial. The PowerPoint slides were not referred to in Dr Tully’s curriculum vitae in express terms.[280] They were not published papers, nor were the presentations to which they relate given at a public event. There was no basis for the defence to know of the existence of the PowerPoint slides, in the absence of them having been disclosed by Dr Tully. Noting that ‘great latitude’ is to be given to an accused in this regard,[281] I do not think that the applicant could, with reasonable diligence, have produced the PowerPoint presentations. That is, I do not think that reasonable diligence required that the defence call for all documents relating to all presentations Dr Tully had given in relation to a particular topic, in the absence of any indication that such presentations existed. The mere statement that Dr Tully had given VFPMS seminars, without more, did not provide such an indication.
[280]Dr Tully’s evidence was that in her CV she listed the fact that she had given VFPMS seminars, but did not provide titles or other details of those seminars.
[281]Ratten v The Queen (1974) 131 CLR 510, 517 (Barwick CJ, McTiernan J agreeing at 524, Stephen and Jacobs JJ agreeing at 533); [1974] HCA 35. See also Bowden (2017) 54 VR 135, 145 [38] (Priest JA, Maxwell P and Kidd AJA agreeing at 137 [1]); [2017] VSCA 46.
Some of Dr Tully’s oral evidence on the appeal also related to the PowerPoint slides. Plainly that evidence was not in existence at the trial. That evidence was given in response to the tender of the PowerPoint slides, which, as explained above, are properly characterised as fresh evidence. In my opinion Dr Tully’s evidence on the appeal takes its character from the evidence to which it is responsive. Thus I consider that, in so far as Dr Tully’s evidence concerned the PowerPoint slides, it is properly characterised as fresh.
As already noted, if fresh evidence adduced on appeal reveals that there is a ‘significant possibility’ that that evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at trial, then an appeal should be allowed. It is thus necessary to consider the effect of the PowerPoint slides, in light of the way in which the applicant sought to rely on them to impugn his conviction.
(b)Effect of the fresh evidence concerning the PowerPoint slides
It may be immediately observed that in her evidence at trial Dr Tully acknowledged the existence of two specific ‘controversies’ or uncertainties as to the diagnosis of abusive head trauma based on the ‘triad’:
(a)she accepted that there is a controversy as to the amount of force required to produce the symptoms known as the ‘triad’; and
(b)she accepted that it is unclear as to whether impact alone can cause the symptoms known as the ‘triad’.
However, at trial Dr Tully did not accept that, in any more general sense, the science surrounding the ‘triad’ is ‘unsettled’ or that there is any ‘medical controversy’ about the diagnosis of abusive head trauma when the relevant diagnostic pathway is followed. Rather, her evidence was that there is a medical consensus that such a diagnosis is a valid diagnosis when properly done; and she relied upon the Consensus Statement in support of that proposition. She did not refer to the SBU Report, although she acknowledged in her oral evidence on the appeal that she was aware of that report at the time she gave evidence at trial. Further, the SBU Report was referred to in the 2019 slides.
It is plain from Dr Tully’s evidence both at trial and on the appeal that, while she accepts some degree of controversy concerning the amount of force required to produce the ‘triad’, she does not consider that there is any legitimate controversy about the diagnosis of abusive head trauma when the ‘triad’ — including the specific pattern of extensive retinal haemorrhages — is present. She considers that there is a ‘perceived’ controversy, which she describes as being ‘within the legal forum’ and ‘driven in the media’. There is no reason to doubt that that is her genuinely held opinion as to the state of the medical evidence, based on her reading and experience.
The question that arises, however, is whether, when asked about whether there is ‘unsettled science and uncertainty’ in relation to the ‘mechanisms and existence of shaken baby syndrome as a diagnosis’, it was appropriate for her to answer ‘no’; and whether it was appropriate for her to state that there is no ‘medical controversy’ about such a diagnosis. Her evidence in that regard now falls to be assessed in light of the PowerPoint slides, in which Dr Tully had used the term ‘controversies’ to identify ‘alternative theories’ about the cause of the ‘triad’. More specifically, had the PowerPoint slides been available to the defence at trial, could they have made any difference to the cross-examination of Dr Tully and the jury’s reliance on her evidence?
Of course, in making that assessment, this Court cannot know precisely what questions defence counsel might have asked Dr Tully had he had access to the slides. But it is not difficult to postulate that, Dr Tully having stated in her oral evidence at trial that she did not believe there is a ‘medical controversy’ about the diagnosis of abusive head trauma, and her disagreement with the proposition that the science is unsettled, defence counsel would have been able to put to Dr Tully that she herself had acknowledged the existence of controversies in relation to abusive head trauma and the ‘triad’. That could have potentially had two impacts.
(a)First, it could have undermined Dr Tully’s credibility, in that:
(i)her definitive answer was contradicted by her own PowerPoint slides, which she had presented only months prior to the trial; and
(ii)it may have suggested that she had adopted a partisan approach to the diagnosis of abusive head trauma, and her role as an expert, as evidenced by her reference to the area being ‘plagued’ by ‘non-believers’.
(b)Secondly, it could have been used by the jury in a more substantive sense, to reason that, contrary to Dr Tully’s evidence, the science is ‘unsettled’, and that there is a ‘medical controversy’ concerning the utility of the ‘triad’ as a diagnostic tool to demonstrate abusive head trauma.
In addition, the PowerPoint slides could have been used by the defence to reinforce the proposition raised at the trial that both an early eye exam and spinal imaging were important, neither of which occurred in relation to Kaleb.
(a)The absence of an ‘early’ eye exam was arguably important in two different ways, namely because no eye exam was done during Kaleb’s admission between 14 January 2016 and 17 January 2016, and because the eye exam that was eventually done was not done ‘early’ — that is, it was done outside the recommended time frame for such examination. Dr Tully was asked about this during her evidence at trial. Had the 2019 slides been available, they could have been deployed to interrogate her answers to those questions.
(b)The absence of evidence of spinal injury was potentially important because when Dr Tully described the ‘triad’ to the jury, she described the third element as being injury to ‘the spinal cord … and … brainstem’. Yet no such injury was found in Kaleb, either upon admission to hospital on either occasion (because no spinal imaging was taken) or on post-mortem (on Dr Iles’ evidence). Thus, based on the 2019 slides, an ‘important’ step was not undertaken, and arguably there was no evidence of an important aspect of the ‘triad’.
Of course Dr Tully would have had an opportunity to give evidence about the content of the slides, including what she meant by ‘controversies’ and why she did not consider the controversies she had identified in the slides to be ‘legitimate’ controversies. Her slides could have been tendered in their entirety, and that could have posed some risks for the defence. It might be that her evidence concerning the slides would have satisfied the jury both of her credibility and of the reliability of her diagnosis. But that is speculation.
To some extent, this Court can infer what Dr Tully might have said in answer to such questions by reference to the answers she gave to questions concerning the slides on the appeal. But, assuming that she would have given the same kind of evidence at trial as she gave on appeal concerning the slides, I do not think that that evidence would have foreclosed the jury from reasoning that there was (and is) a medical controversy about the use of the ‘triad’ to diagnose abusive head trauma. In particular, Dr Tully acknowledged in evidence before us that there is a ‘small number’ of clinicians and researchers who do not support the consensus view that she supports. Thus, to that extent, she acknowledged a difference of opinion, but sought to defuse that difference by pointing to it as a minority view. She did not suggest that the persons expressing that different view lack relevant qualifications and expertise. Dr Tully also said in evidence before us that she did not ‘say that there’s no controversy’. Literally, that is true, because what she said at trial was that there is no ‘medical controversy’. But that is a somewhat disingenuous distinction.
Ultimately, there is a significant possibility that, had Dr Tully’s slides been in evidence, the jury would have accepted that there is a real (medical) controversy concerning the diagnostic utility of the ‘triad’. Dr Tully’s certainty as to her diagnosis could have been undermined. Her credibility could have been undermined. This possibility is reinforced by Dr Iles’ evidence, set out in the judgment of Forrest and Emerton JJA, which was considerably more equivocal than Dr Tully in relation to the possibility that Kaleb’s pre-existing condition had pre-disposed him to injury from less force than would ordinarily be required to produce the ‘triad’. Dr Tully’s evidence was the critical evidence that provided a pathway for the jury to convict. Without her evidence, a conviction would not have been possible. If the jury accepted that there is a medical controversy concerning the diagnosis of abusive head trauma where the ‘triad’ is present, they might not have concluded that the applicant had handled Kaleb in a manner that reached the relevant standard of gross negligence or unlawful and dangerous act. Thus, had the defence had available to it material that potentially undermined Dr Tully’s evidence, whether as a matter of substance or as a matter of credibility, the prosecution may not have successfully excluded a reasonable hypothesis consistent with innocence.
Thus, in my opinion, had the PowerPoint slides been available to the defence at trial, there is a significant possibility that the jury would have acquitted the applicant, noting that, where fresh evidence is concerned, it is not for this Court to resolve what we would have made of the evidence, but to consider what a reasonable jury might have made of it. I consider that Dr Tully’s evidence as to the absence of any medical controversy was, objectively understood by reference to her own PowerPoint slides, incorrect. Had the PowerPoint slides been in evidence before the jury, I consider there is a reasonable possibility that they might not have accepted Dr Tully’s unequivocal assertion that there was no medical controversy concerning the ‘triad’. Had they taken that path of reasoning, there is a reasonable possibility that they would not have convicted the applicant. Thus, I am satisfied that there has been a substantial miscarriage of justice, and ground 2 is made out. It is thus unnecessary to consider the effect of the evidence of Professors Högberg, Eriksson and Wester in relation to ground 2.
The consequence of my conclusion on ground 2 is that the conviction should be set aside and a new trial ordered.
It remains to make some remarks about Dr Tully’s failure to disclose her PowerPoint slides. To the extent that the applicant suggested in the course of the appeal that, by that failure, Dr Tully behaved in a manner contrary to her obligations as an expert witness, I wish to emphasise that I have not made any such finding. Dr Tully provided a CV that was her ‘ordinary’ CV, not one that was tailored to the particular case in which she was appearing. That was not contrary to her obligations. I accept that a person in Dr Tully’s position would not include a list of PowerPoint presentations given at seminars of the kind she delivered on behalf of the VFPMS in their ‘ordinary’ CV. There was, in my opinion, no reason for Dr Tully to have, of her own accord, produced any different CV or produced the particular PowerPoint slides in issue on this appeal.
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.
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[2022] VSCA 107

7 June 2022