Joby Rowe v The King - [2023] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0060

JOBY ROWE	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, PRIEST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2023
DATE OF JUDGMENT:	18 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 193
JUDGMENT APPEALED FROM:	DPP v Rowe (Supreme Court of Victoria, T Forrest JA, 3 August 2018)

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CRIMINAL LAW – Appeal – Conviction – Child homicide – Death of infant in applicant’s care – Whether jury verdict unsafe, unsatisfactory or unsupported by evidence – Where Crown alleged infant died from inflicted head trauma – Whether Crown relied upon evidence of ‘triad’ of symptoms to support diagnosis – Whether jury could exclude possibility death caused by choking – Whether jury could exclude possibility death caused by unknown medical cause – Verdict open to jury – Extension of time to file notice of application for leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – New evidence – Evidence of correspondence between expert witness and colleagues – Where evidence referred to in expert report in applicant’s possession at trial – Evidence does not raise such doubt about guilty verdict that verdict should not be allowed to stand.

Bowden (a pseudonym) v The Queen (2017) 54 VR 135, Vinaccia v The Queen [2022] VSCA 107, R v Baden-Clay (2016) 258 CLR 308, applied.

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Counsel
Applicant:	Mr RF Edney with Ms V Drago
Respondent:	Mr J Lewis with Ms J Wang
Solicitors
Applicant:	Doogue & George Pty Ltd
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

Facts and procedural history

Alanah’s death, and the events leading up to it

The applicant’s police interviews

The expert evidence at trial

Dr Iles

Dr Lim Joon

Dr Tully

Ground 3 — failure to disclose drafts of expert report and emails

Submissions

Discussion

Ground 4 — verdict unsafe, unsatisfactory or not supported by evidence

Discussion

The triad

Choking and other causes

Unknown causes

Conclusion

EMERTON P
PRIEST JA
KENNEDY JA:

Introduction

On 3 August 2018, the applicant was convicted of one count of child homicide. The victim, Alanah Rowe, was three months’ old at the time of her death. The applicant was Alanah’s father. At the time, he had been in a relationship with Alanah’s mother, Stephanie Knibbs, for about 12 months.
Between approximately 10 am and 2:30 pm on 29 August 2015, Alanah was in the care of the applicant while Stephanie was at work. When Stephanie returned home at approximately 2:30 pm, Alanah was unwell. Stephanie saw that Alanah was pale and gasping for air. She immediately called for help from her step-mother, Joy Knibbs, who told her to ring 000 and administered CPR until paramedics arrived and took over.
Alanah was air-lifted to the Royal Children’s Hospital. By then, she required assistance to breathe. The following day, 30 August 2015, Alanah’s life support was removed.
Examinations revealed that Alanah had the following conditions:
(a)subdural haemorrhages in the brain;[1]
(b)subdural…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Joby Rowe v The King

Details

AGLC: Joby Rowe v The King [2023] VSCA 193
Case: [2023] VSCA 193
Decision Date: 18 August 2023

CaseChat Overview and Summary

The applicant, Joby Rowe, appealed against his conviction for the death of an infant in his care. The Court of Appeal heard the matter and considered the arguments put forward by the applicant. The primary legal issue was whether the jury's verdict was unsafe, unsatisfactory, or unsupported by the evidence. The Crown had alleged that the infant died from inflicted head trauma. The applicant argued that the jury could not exclude the possibility that the infant's death was caused by choking or an unknown medical cause. The court considered the evidence of a 'triad' of symptoms that the Crown's expert witness had relied upon to support the diagnosis of inflicted head trauma. The court found that the jury was entitled to accept this evidence and that the verdict was open to the jury. The court also considered the applicant's argument that new evidence of correspondence between the expert witness and colleagues raised such doubt about the guilty verdict that it should not be allowed to stand. The court found that the evidence did not raise such doubt and dismissed the application for leave to appeal. The court also refused to grant an extension of time to file the notice of application for leave to appeal. The reasoning of the court was based on the principles established in Bowden v The Queen, Vinaccia v The Queen, and R v Baden-Clay. The court found that the jury's verdict was open to them based on the evidence presented and that the new evidence did not raise such doubt about the verdict that it should not be allowed to stand. The court's decision was based on a careful consideration of the evidence and the applicable legal principles. The final orders of the court were to dismiss the application for leave to appeal and to refuse an extension of time to file the notice of application for leave to appeal.

Orders