Joby Rowe v The King

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 haemorrhages in the spinal cord;
(c)retinal haemorrhages; and
(d)subarachnoid brain haemorrhages.
[1]That is, bleeding in the subdural area of the brain. The subdural area of the brain is beneath the dura mater, which is the outermost lining of the brain.
No external injuries were identified.
The Crown case at trial was that Alanah’s injuries were caused by shaking, along with possible impact to the head. It relied heavily on the medical opinion evidence of three expert witnesses: Dr Linda Iles, Dr Troy Lim Joon and Dr Joanna Tully. Dr Iles is the forensic pathologist who examined Alanah’s brain and spinal column post mortem; Dr Lim Joon is an ophthalmic surgeon who examined Alanah’s eyes; and Dr Tully is a forensic paediatrician at the Victorian Forensic Paediatric Medical Service (‘VFPMS’) who examined Alanah at the Royal Children’s Hospital, took a history from Alanah’s parents and caused to be carried out and/or reviewed a battery of medical tests on Alanah both pre- and post-mortem.
Dr Tully concluded that Alanah died as a result of inflicted head trauma and supported ongoing investigation by Victoria Police into her death. The conclusion that Alanah died of inflicted head trauma was supported by Dr Iles and Dr Lim Joon.
The applicant adduced no medical evidence at trial but sought to challenge the evidence of the Crown witnesses.
The applicant initially raised six proposed grounds of appeal against conviction. He abandoned all but two of them. The grounds upon which he relies are as follows:
3.A substantial miscarriage of justice occurred because of the failure of Dr Joanne Tully to disclose to legal representatives of the accused: (i) draft versions of her expert report and (ii) email correspondence between Dr Tully and Professor Paul Monagle, Professor of Paediatric Haematology; and fresh evidence of those draft versions and email correspondence should be admitted to demonstrate that the trial of the accused miscarried.
4.The verdict is unsafe and unsatisfactory, or cannot be supported having regard to the evidence.
PARTICULARS
The prosecution could not have the excluded the reasonable possibility that the death of the deceased was caused by
(i) choking during the course of feeding; or
(ii) unknown medical cause/s.

Facts and procedural history

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

Alanah was born six weeks premature at Bendigo Hospital on 31 May 2015. She did not breathe for the first 57 seconds and was revived with CPR. As she was small and required antibiotics, she was kept in a special care unit until she could feed from a bottle. Her parents took her home when she was approximately three weeks’ old.
At home, Alanah was healthy and fed well on the bottle. According to Stephanie, Alanah would sometimes gulp a lot of milk too quickly and would need burping after a feed. Often, after being burped, Alanah would vomit up her milk, but not all of it.
In cross-examination at trial, Stephanie’s step-mother, Joy Knibbs, agreed that the applicant was a ‘doting’ father who handled Alanah ‘like a fragile egg’ and ‘did all the right things’. The maternity and child health nurse at the nearby Heathcote Hospital, Elizabeth Hudspeth, observed the applicant to be a loving father, and saw no signs of tension, aggression or inappropriate behaviour.
It was reported that in the week prior to her death, Alanah was crying a lot. On 25 August 2015, the applicant sent Stephanie a text message that Alanah was ‘crying flat out’. On 26 August 2015, he sent Stephanie another text message saying he was ‘[t]rying to get Alanah to stop crying’, but she would not stop.
According to Stephanie, at approximately 6 am on 29 August 2015, she woke because Alanah was crying. Both she and the applicant tended to Alanah. She prepared the bottle and the applicant changed and fed Alanah. Alanah then settled. Stephanie and the applicant went back to bed.
At 10 am, Alanah’s crying woke Stephanie again. Stephanie realised she was running late for work and hurriedly got ready. The applicant drove Stephanie to work, putting Alanah in the car seat. Alanah cried, as she generally did when put in the car seat. However, she did not settle as she usually did.
At 12:29 pm, while at work, Stephanie sent the applicant a text message asking if Alanah was ‘ok’. The applicant responded that Alanah had ‘been a little upset’ but was ‘ok now’.
Stephanie left work at 2:30 pm. Joy Knibbs dropped her home.
Stephanie gave the following account of events when she arrived home:
(a)She entered the lounge room and saw Alanah on the change table. The applicant was standing at the base of the change table. He said, ‘I think there’s something wrong with Alanah.’
(b)Stephanie approached the change table and saw that Alanah’s face was pale and her eyes were closed. Her left arm was slightly raised and she was gasping for air. Stephanie could not see, hear or feel Alanah breathing.
(c)Stephanie walked outside to call Joy and asked her to come back immediately. When she went back inside, Alanah’s nose was bleeding. Stephanie called 000.
(d)Joy arrived. Joy put Alanah on the couch and administered CPR as instructed by the 000 operator. The applicant was standing behind her and was very upset. He said, ‘I just gave her a bottle.’
The first paramedic on the scene was Michael Holden from the local hospital. He found Alanah lying on her back on the couch, apparently unconscious. She had a patch of formula with red streaks on her jumpsuit and he thought she had vomited or coughed and spluttered. Her mouth contained fluid that was similar in appearance. Holden took over from Joy in administering CPR. At one stage, he saw Alanah’s stomach swell from too much air entering her lungs. He pressed on her stomach and air came out of her mouth with a white fluid that looked like formula. It was a clotty white substance.
Holden said that the applicant told him he had fed Alanah, Alanah had coughed and spluttered, there was a trickle of blood and Alanah had fallen backwards unconscious.
MICA paramedics arrived on scene. According to one of the MICA paramedics, Brad Sanders, the applicant told him that he had fed Alanah, and that she had choked, vomited and become quiet.
At 2:55 pm Alanah became asystolic.[2] Her heartbeat returned 37 minutes later following the administration of adrenaline.
[2]That is, there was an absence of contractions of the heart. In other words, Alanah ‘flatlined’.
By the time she was transported from Heathcote to the Royal Children’s Hospital, Alanah had a consistent heartbeat, but required assistance to breathe.
Stephanie and the applicant drove to the Royal Children’s Hospital. In the car, the applicant told Stephanie that he had given Alanah her bottle and burped her as usual. Alanah had choked, then went back to sleep. He had placed Alanah on the change table just before Joy’s car arrived, and Alanah had put her arms up as she usually did when put down.
Stephanie and the applicant spent the night at the Royal Children’s Hospital. The next day (30 August 2015), they made the decision to remove Alanah’s life support.

The applicant’s police interviews

The applicant gave two interviews to police.
He was first interviewed on 30 August 2015 at the North Melbourne Police Station. Alanah was still alive at that point. He recounted the events of the previous day. He told police that at about 1:50 pm, Alanah was crying. He changed her and fed her. Alanah drank between 70 to 90 mls of formula. She then choked on it. The applicant sat her up and burped her. She vomited. He wiped her face and laid her back down, and she closed her eyes, as if she was going to sleep. Stephanie then arrived, by which time Alanah was struggling to breathe. They then rang Joy.
In the same interview, when asked how he was handling Alanah’s screaming, the applicant said that it was ‘not over the top’, and that it was just what little kids did. He denied being excessively rough with Alanah and said that the roughest thing he did was to place Alanah on his lap and bounce her up and down. He did not shake ‘the shit out of her’. When asked if it was possible that he was frustrated by and angry at Alanah’s crying, he acknowledged that he would get frustrated, but strongly denied that he would ever hurt Alanah. He said he was well-rested and denied drinking.
The applicant was interviewed again on 21 September 2015 at Bendigo Police Station. The applicant was asked if he had dropped Alanah, if there had been any impact with Alanah’s head, or if Alanah had fallen. The applicant answered all of these questions in the negative. He denied hitting, pushing or shaking Alanah.
In that interview, the applicant initially said that he was ‘pretty sure’ that Stephanie was the first to notice that Alanah’s breathing was irregular. It was put to him that it was he who had pointed out that Alanah was injured. He did not directly respond. He denied telling Holden that he had tried to give Alanah the bottle, and that she had then gasped, coughed, vomited, bled from the nose, fallen backwards and become unconscious.

The expert evidence at trial

As discussed, the Crown called three medical witnesses: Dr Iles, Dr Lim Joon and Dr Tully. Each witnesses was extensively cross-examined by defence counsel about the evidence supporting their conclusions and as to alternative hypotheses for Alanah’s presentation.

Dr Iles

Dr Iles is a forensic pathologist at the Victorian Institute of Forensic Medicine (‘VIFM’). She is a specialist in neuropathology and conducts neuropathological examinations — that is, examinations of the brain and spinal cord.
Dr Iles examined Alanah’s brain and spinal cord visually. She then took samples to examine under the microscope. She formed the opinion that the cause of the changes in Alanah’s brain and spinal cord was mechanical head trauma.
Dr Iles explained the general diagnostic process used by medical professionals, both in clinical and autopsy settings. She said that the diagnostic process involves considering potential explanations for individual findings, but also considering findings in combination.
Dr Iles found the following in Alanah’s brain and spinal cord:
•Severe hypoxic ischaemic encephalopathy (‘HIE’) resulting from lack of blood flow and oxygen, associated with diffuse (widespread) brain swelling. The HIE was caused by cardiac arrest and was the immediate cause of Alanah’s death.
•Subdural haemorrhage beneath the convexity dura (dura that sits on top of the brain) and extending down on both sides of the falx, with more blood present on the left hand side.
•Patchy subarachnoid haemorrhage, predominantly in the parafalcine regions (on either side of the falx). There was less subarachnoid haemorrhage than subdural haemorrhage.
•Torn parasagittal bridging veins. These are veins between the surface of the brain and the superior sagittal sinus. There are usually between 10 and 16 bridging veins in an infant brain, but only two bridging veins remained intact.
•Focal white matter micro-haemorrhage about the inferior left lateral orbitofrontal gyrus — that is, one tiny area of haemorrhage about one of the convolutions of the brain that sits above the left eye, in the frontal lobe of the brain.[3]
•Hypoxic ischaemic myelopathy, or injury to the spinal cord from lack of blood flow and oxygen.
•Subdural and subarachnoid haemorrhage about the spinal cord. The subdural haemorrhaging was diffusely spread along the spinal cord.
•A previous or ‘remote’ subdural haemorrhage in the same area as the acute subdural haemorrhage outlined above indicated by membranes that were not visible to the naked eye.
•A ‘remote’ left parasagittal subarachnoid haemorrhage in a single position.[4]
[3]Because this feature was small and very focal, Dr Iles did not think there was enough evidence for her to say confidently that it was definitely a traumatic injury, and she did not think too much importance should be placed on it.
[4]As there was only a small amount of residual iron, Dr Iles did not consider it to be a significant subarachnoid haemorrhage.
Dr Iles considered the most informative of these findings to be the bilateral subdural haemorrhage, the patchy subarachnoid haemorrhage and the torn bridging veins. They did not cause the HIE; however, the subdural haemorrhage and torn bridging veins were indicative of forces applied to Alanah’s brain.
Dr Iles opined that Alanah’s injuries were due to mechanical head trauma. The trauma was due to shaking, but may also have involved impact over a soft broad surface. The level of force required would have been significantly in excess of normal handling.
Dr Iles accepted that, while Alanah’s presentation led to the conclusion that the cause of her death was head trauma, the individual factors could have been caused by a range of events.
Dr Iles gave evidence that HIE is a relatively non-specific finding in isolation, as it is a fairly common ‘end stage’ scenario following brain injury. Causes of HIE include cardiac disease, trauma and asphyxial events. Dr Iles said that Alanah’s period of asystole would cause HIE, but could not cause brain haemorrhages or torn bridging veins. Likewise, the CPR administered to Alanah could not cause the haemorrhages or torn bridging veins that were identified. Further, in Dr Iles’ opinion, the combined events of choking, asystole and CPR could not cause the combination of injuries with which Alanah presented.
Dr Iles was asked about a number of alternative hypotheses for Alanah’s presentation. As to the possibility of choking, Dr Iles said that choking required something substantial enough to obstruct a child’s airway and choking would not explain the subdural or subarachnoid haemorrhages observed in Alanah. As to hypoxia causing bleeding of the kind observed in Alanah, Dr Iles said that if that was the cause, it would occur in many other delicate blood vessels around the body, not just in the brain, and this had not been observed.
Dr Iles was asked about Alanah’s remote subdural haemorrhage and the possibility that it ‘re-bled’. She rejected the idea that a spontaneous re-bleed caused Alanah’s collapse. Alanah had multiple acute subdural haemorrhages in multiple different compartments and spontaneous re-bleeds in multiple different places at the same time would be incredibly unlikely. Further, a re-bleed would not explain the subarachnoid haemorrhage, which was in a different compartment from the remote subdural haemorrhage.
Dr Iles accepted that bridging veins can be torn during post-mortem examination, and agreed that she could not exclude the possibility that this happened in Alanah’s case. However, she thought this was unlikely, as post-mortem tearing of bridging veins does not cause subarachnoid bleeding. Further, a post-mortem technique is used that avoids this occurring.
Dr Iles was also cross-examined about the diagnostic validity of the ‘triad’, meaning the use of a combination of three findings — subdural haemorrhages, retinal haemorrhages and HIE — to diagnose mechanical head trauma. Dr Iles accepted there was some controversy about whether the existence of the triad features supports a diagnosis of shaking, and acknowledged that the triad theory had been criticised for being infected by confirmation bias and by circular reasoning. She also accepted that there were limitations to the conclusion that Alanah had experienced head trauma because it was a diagnosis of exclusion, that is, a diagnosis reached by elimination of other causes.
In response to a question from defence counsel that there were possibly underlying diseases or abnormalities of which medical science was unaware, Dr Iles said: ‘Yes, that is fair, we don’t know what we don’t know; we can only draw conclusions based on the current state of knowledge as it exists.’

Dr Lim Joon

At the time of the trial, Dr Lim Joon was a clinician and acting director of the Department of Ophthalmology at the Royal Children’s Hospital. He examined Alanah’s eyes and found multiple retinal haemorrhages in both eyes. The entire retina of both eyes was bruised and there remained very little normal retina.
Dr Lim Joon opined that Alanah’s retinal haemorrhages were caused by inflicted head trauma, most likely violent shaking. They were at the severe end of the spectrum, being the worst that Dr Lim Joon had seen. He had seen similar haemorrhages in one or two abusive head trauma cases but not of the same severity, and he had also seen similar haemorrhages in a child who was trodden on by a horse. He considered that violent or quite excessive force would be required to produce the kind of retinal haemorrhages seen in Alanah.

Dr Lim Joon accepted that retinal haemorrhages can be caused by external forces, internal causes (such as a bleeding disorder) and infections. However, in relation to alternative hypotheses for Alanah’s retinal haemorrhages, Dr Lim Joon said:
•Retinal haemorrhages arising from childbirth do not usually present in the way Alanah’s did. They are usually smaller, round, slightly pale and often centred around the optic nerve and the central part of the retina. They usually clear after between two to four weeks.
•CPR did not play a role in Alanah’s haemorrhages.
•The administration of adrenaline did not contribute to Alanah’s haemorrhages.
•Raised intracranial pressure can cause retinal haemorrhages, but not in the pattern observed in Alanah.
•The bleeding on Alanah’s brain in the subarachnoid or subdural spaces did not cause or contribute to the haemorrhages.
•Hypoxia does not cause retinal haemorrhages.
Dr Lim Joon said that he did not think that that the hypoxia, subarachnoid and subdural bleeding, raised intracranial pressure, adrenaline, CPR and the 37 minutes or thereabouts of asystole taken together contributed to Alanah’s level of haemorrhage.
Dr Lim Joon told the court that he had not seen retinal haemorrhaging from the constellation of hypoxia, being asystolic for 35 to 40 minutes, and raised intracranial pressure, and certainly not to the extent observed in Alanah. He accepted that he could not exclude the possibility of a ‘unique first time presentation’ by a child with this constellation of features, but considered the possibility of this occurring to be very unlikely.
In cross-examination, Dr Lim Joon agreed that there were limitations to his diagnosis of inflicted head trauma. Retinal haemorrhages alone are not diagnostic of inflicted trauma. The presence of external and other internal injuries would have strengthened his hypothesis, but the absence of such injuries did not weaken it.
Dr Lim Joon agreed that he could only speak as to likelihood and probability and could not say anything with certainty. He agreed that it was difficult to exclude confirmatory bias, and that he had examined Alanah with the understanding that there was a suspicion of mechanical head trauma.
Dr Lim Joon agreed that the science surrounding retinal haemorrhages in infants is incomplete. He agreed that medicine and ophthalmology were evolving areas and agreed that there may be alternative hypotheses for Alanah’s death that are not yet supported by sufficient data. He said the science of genetic abnormalities is evolving particularly rapidly.

Dr Tully

Dr Tully considered that the most significant findings in relation to Alanah were the subdural and associated subarachnoid haemorrhages, retinal haemorrhages, spinal subdural haemorrhages and HIE. In isolation these features might have alternative causes but, when viewed in combination, the number of possible causes rapidly diminishes. Dr Tully concluded that Alanah’s injuries were the result of trauma, most likely shaking or shaking with impact. She could not think of an event, other than shaking, that could have caused Alanah’s death.
Dr Tully gave evidence that the most common cause of subdural haemorrhages is trauma. The location and distribution of Alanah’s subdural haemorrhages was significant. There is a difference in the pattern, location and distribution of accidentally caused subdural haemorrhages from those caused by shaking or shaking with impact: the former tend to be localised and larger at a particular point; the latter, as in Alanah’s case, are typically over the convexities, along the tentorium and around the falx or in the hemispheric fissure.
Dr Tully explained that subdural haemorrhages of the kind seen in Alanah arose predominantly from torn bridging veins. When an infant is shaken the brain moves backwards and forwards, and around and around, at speed inside the skull where the bridging veins are fixed, with the result that the veins may tear, resulting in the particular pattern of subdural haemorrhages. The level of force required to tear bridging veins cannot be quantified — for obvious reasons, it is not possible to do the relevant tests upon infants — but they are generally described as significant or violent forces, and are certainly forces that exceed the normal handling of an infant.
Dr Tully gave evidence that the pattern of retinal haemorrhages observed in Alanah was also significant. They were bilateral, multilayered and extended to the periphery of Alanah’s eyes, a pattern strongly associated with acceleration, deceleration and rotational forces, which are the forces applied during shaking. Dr Tully considered that Alanah’s retinal haemorrhages were a significant finding and she did not believe that they were caused by CPR.
Dr Tully gave evidence that spinal subdural haemorrhages are more rare than subdural haemorrhages in the brain and trauma is overwhelmingly the most common cause of spinal subdural haemorrhages in childhood. In the literature, spinal subdural haemorrhages are accepted to be more common in inflicted trauma than accidental trauma. While the tracking of blood from the posterior fossa to the spine is a well‑recognised cause of spinal subdural haemorrhages, Alanah’s spinal subdural haemorrhages were unlikely to be the result of tracking because no blood products were found in her posterior fossa, either on imaging or at autopsy, and there was no ligamentous damage to her neck.
Thus, like Dr Iles, Dr Tully considered the more likely cause of Alanah’s spinal subdural haemorrhages to be direct trauma to that area.
HIE was the ultimate cause of Alanah’s death. Dr Tully explained how shaking can cause HIE:
[T]he theory is that when an infant is forcefully shaken stretching occurs to the spinal cord at the very top of the cervical spine, brainstem fibres, et cetera, which have a direct effect on the brainstem and the respiratory centres in the brain, and that will stop an infant breathing. Additionally, there can be a concussive effect of the brain tissue banging backwards and forwards against the skull; in combination that will cause an infant to stop breathing. … [W]hen an infant stops breathing … there’s a period of time without oxygen, and the period of time without oxygen is to the whole of the body, not just the brain but also to the heart and the vessels and the tissues of the heart, so the heart will quite quickly become stressed, have a lack of oxygen and stop beating. Once your heart has stopped beating, you don’t have a blood supply to your brain or to the other tissues of your body, and that’s what results in death.
The lack of oxygen to the brain tissue sets up an inflammatory cascade which causes brain swelling.
Dr Tully accepted that Alanah’s cardiac arrest, which likely caused the HIE, could have been triggered by suffocation or choking, but only if Alanah choked on something solid. Dr Tully rejected the proposition that choking on formula could have caused Alanah’s cardiac arrest and HIE. While choking on objects or solid food substances that obstruct the airway can cause cardiac arrest, that is not the case with a liquid. The clotted milk or curdy substance that babies vomit does not block the airway so as to cause a choking event leading to cardiac arrest. Aspiration of liquid is not common in developmentally and neurologically normal infants, and it is not an explanation for subdural haemorrhages, retinal haemorrhages or spinal subdural haemorrhages.
Apart from choking, Dr Tully was asked about a number of other hypotheses for Alanah’s presentation. She gave evidence that hypoxia does not cause subdural haemorrhages. As to re-bleeding of the ‘remote’ subdural haemorrhage that was found, Dr Tully agreed that re-bleeding of birth-related subdural haemorrhages can occur. However, those re-bleeds are small, and the vast majority do not cause any clinical symptoms. They have never been described as causing catastrophic collapse.
In cross-examination, Dr Tully agreed that there was controversy surrounding the diagnosis of mechanical head trauma based on the existence of the triad features, but said that the triad theory had stood up to rigorous testing and there was now general medical consensus supporting the theory. She said that there were some difficulties with the diagnosis because tests could not be carried out on living babies. The studies that bore most weight were the ones that contained evidence independent of physical findings, including confessional evidence and eyewitness evidence.

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

Following the trial, and for the purposes of this appeal, the applicant obtained, through an order made pursuant to s 317 of the Criminal Procedure Act 2009:
(a)email correspondence between Dr Tully and Professor Paul Monagle, then a consultant paediatric haematologist at the Royal Children’s Hospital, and
(b)draft versions of Dr Tully’s expert report that were attached to those emails.
The applicant relies on two aspects of this material to contend that the failure to disclose the material prior to trial led to a substantial miscarriage of justice. First, Dr Tully asked Professor Monagle whether she could change words in her draft report to be more emphatic about blood results; secondly, Dr Tully did not take up a suggestion contained in a comment on the draft by a colleague to refer to alternative conditions or causes that might explain Alanah’s collapse.
The communications with Professor Monagle were as follows:
(1)On 8 September 2015, Dr Tully emailed Professor Monagle to ask him to run an extended coagulation screen on Alanah’s blood samples.
(2)Professor Monagle replied that he had already run the extended screen. He described the results of that screen as follows:
The factor assays were globally depressed, but everything above 30% which one could argue is minimal haemostatic levels. The presence of the elevated D dimers makes it consistent with secondary DIC. The Vit k dependent factors were no worse than others making VitK deficiency as a pre existing entity almost impossible. The factor XIII was clearly normal. Factor VIII elevated as expected in acute phase response.
So in summary, nothing to suggest a pre existing coagulation problem, and abnormalities consistent with mild DIC, that was not severe enough to cause the bleeding identified and almost certainly a secondary phenomenon.
(3)On 15 September 2015, Dr Tully sent Professor Monagle a draft version of her expert report, noting that she had left comments by Dr Anne Smith — then medical director of the VFPMS — in the draft. The section of Dr Tully’s draft report on Alanah’s coagulation results concluded with the following sentence:
Overall, these coagulation test results indicate that a pre-existing coagulation abnormality almost certainly did not contribute to Alanah’s subdural and subarachnoid haemorrhages.
(4)Dr Tully asked Professor Monagle if he would be ‘confident enough to leave out the “almost certainly” and replace it just with “did not”’.
(5)On 16 September 2015, Professor Monagle returned a marked-up draft of the report to Dr Tully. In his covering email, he stated that he ‘didn’t have any major problems with the original wording’ and was ‘happy to say there was no pre‑existing bleeding disorder that could account for the observed bleeding’. He marked up the concluding sentence to the section on Alanah’s coagulation test results as follows:
Overall, these coagulation test results and the clinical picture indicate that no a pre-existing coagulation abnormality (factor deficiency, Von [W]illebrands disease, vitamin K deficiency, platelet disorder) was present and as such ~~almost certainly~~ did not contribute to Alanah’s subdural and subarachnoid haemorrhages.
(6)The final version of Dr Tully’s expert report includes Professor Monagle’s suggested changes to this sentence.
As to Dr Smith’s comment in the draft report, it is attached to the following sentence:
It is my opinion that, if the statement made by [the applicant] that Alanah was her normal self at 13:50–14:00 is correct, then the episode of trauma leading to the observed injuries probably occurred just prior to her collapse (ie sometime between 13:50 and 14:30).
Dr Smith left the following comment on this part of the draft report:
Do you think you need to consider and discuss suffocation? Occlusion of airways? Epilepsy and apnoea? Near miss SIDS? Brugada syndrome/arrhythmia? I think probably yes … if only to say that the presence of SDH^[[5]] in head and spine suggests trauma and there is currently insufficient evidence to support the hypothesis that hypoxia alone causes SDH (as postulated by Geddes etc) …
[5]Subdural haemorrhage.
Dr Tully did not take up this suggestion.

Submissions

The applicant submits that as a result of the failure to disclose the material before trial:
(a)He was deprived of the opportunity to cross-examine Dr Tully on alternative hypotheses consistent with the applicant’s innocence. At least six other specific potential conditions were listed in the comment directed at Dr Tully. None were the subject of cross-examination because of the unreasonable and inexplicable failure to disclose.[6]
(b)Lines of attack on a key expert in the case, Dr Tully, were not available. Had this information been available at the time of trial, live issues as to her impartiality and non-compliance with the Expert Evidence Practice Note[7] would have been explored.
(c)He was deprived of the opportunity to pursue cross-examination of Professor Monagle on alternative hypotheses consistent with innocence. Put another way, the emails suggest an increased degree of uncertainty surrounding whether Alanah had a bleeding disorder that may have caused her death. A reasonable alternative cause of death was indiscernible on the medical material disclosed.
(d)The material reveals that the integrity of the evidence presented at trial was jeopardised. Arguably, Dr Tully took calculated steps to shield Professor Monagle from being subpoenaed. The jury did not know the true state of the haematological results and their significance.
[6]In this regard, the applicant submits that blood abnormalities have been found to mimic symptoms present in shaken baby syndrome/abusive head trauma cases: citing Joshua D Levinson, Melissa A Pasquale and Scott R Lambert, ‘Diffuse Bilateral Retinal Hemorrhages in an Infant with a Coagulopathy and Prolonged Cardiopulmonary Resuscitation’ (2016) 20(2) Journal of the American Association for Pediatric Ophthalmology and Strabismus 166.
[7]Supreme Court of Victoria, Practice Note SC CR 3: Expert Evidence in Criminal Trials, 30 January 2017.
In relation to the haematological evidence in particular, the applicant points out that, at trial, Dr Tully was asked during her examination-in-chief:
Was there any evidence of a congenital coagulation abnormality or anything that would account for the presentation that she had?
Dr Tully replied:
No, there wasn’t.
Dr Tully then explained that she had asked for a haematology review, and ‘the professor of paediatric haematology at the Royal Children’s Hospital reviewed Alanah’s coagulation test results, and his opinion was that there was no underlying coagulation defect that could explain [the] findings’.

Discussion

The applicant seeks to rely on a brief exchange between Dr Tully and Professor Monagle about the proposed removal of the words ‘almost certainly’ in Dr Tully’s draft report and a comment on the draft report by a colleague of Dr Tully’s suggesting discussion of alternative causes, ‘if only to say’ that the presence of subdural haemorrhages in head and spine suggested trauma and there was insufficient evidence to support the hypothesis that hypoxia alone causes subdural haemorrhages.
Dr Tully’s expert report was provided to the applicant before the trial. It is detailed, covering a range of investigations and findings, many of which were not explored or challenged at trial. The report contains the blood analysis results in full and Professor Monagle is named in Dr Tully’s report as the consultant paediatric haematologist who provided an opinion on Alanah’s blood test results. The emails between Dr Tully and Professor Monagle are listed in the part of the report that sets out the material referred to.
The applicant was therefore well aware of Professor Monagle’s existence and the work that he had carried out, and could have subpoenaed him prior to trial. The applicant could also have obtained documents recording discussions between Dr Tully and Professor Monagle at that time.
Furthermore, it was also open to the applicant to call for any drafts of Dr Tully’s report. It is not uncommon for draft reports to be sought by the defence and provided by the prosecution.
The evidence upon which the applicant now seeks to rely is therefore ‘new’ rather than ‘fresh’ evidence.[8] For it to result in a successful appeal, the applicant must show that it demonstrates he is innocent or raises such a doubt about his verdict of guilty that the verdict should not be allowed to stand.[9]
[8]Bowden (a pseudonym) v The Queen (2017) 54 VR 135, 143 [34] (Priest JA); [2017] VSCA 46.
[9]R v Vinaccia [2022] VSCA 107, [151] (T Forrest and Emerton JJA), [506] (Walker JA).
The applicant’s assertions with respect to Dr Smith’s comment do not bear close scrutiny. Whether an occlusion of Alanah’s airways could explain her presentation was in fact explored with, and rejected by, the experts at trial. Having regard to Alanah’s medical history, there is no evidence to suggest that any of the other conditions referred to in Dr Smith’s comment was a reasonable hypothesis consistent with the applicant’s innocence. Indeed, the suggestion that these conditions be discussed in the report was made on the basis that the discussion would make it clear that they could not explain Alanah’s subdural haemorrhages (and were therefore not explanatory of the constellation of Alanah’s injuries).
As the Crown submitted, when considering alternative explanations for the constellation of injuries suffered by Alanah, it was a matter for Dr Tully to determine how wide to cast the net; some conditions will be such a poor fit that they do not warrant inclusion. Dr Tully was the expert who would have to explain her enquiries and conclusions and be cross-examined about them.
There was nothing to prevent the defence from cross-examining Dr Tully about the possibility of suffocation, epilepsy, apnoea, ‘near-miss’ SIDS, Brugada syndrome/arrhythmia or any other condition.
In our view, Dr Smith’s comment does not go anywhere near to demonstrating the applicant’s innocence or raising such doubt about the verdict that it should not be allowed to stand.
Turning to the evidence of the correspondence with Professor Monagle, the applicant has not explained his assertion that ‘live’ issues as to Dr Tully’s impartiality and non‑compliance with her expert obligations would have been explored had this material been available at trial. Dr Tully requested Professor Monagle to carry out tests on Alanah’s blood. She asked him to conduct an additional screening test so that those results could be included in her report. She was careful to check with Professor Monagle, as the specialist, her conclusions about Alanah’s blood test results. In our view, the correspondence does no more than to show Dr Tully’s conscientious acquittal of her expert obligations.
As to the applicant’s submission that he was deprived of the opportunity to pursue cross‑examination of Professor Monagle, the email correspondence shows that Professor Monagle was confident that no pre-existing bleeding disorder could account for Alanah’s condition. The applicant’s underlying premise — that the emails suggest an increased degree of uncertainty surrounding whether Alanah had a bleeding disorder that may have caused her death — is incorrect. Moreover, there was nothing preventing the defence from requiring Professor Monagle to attend court for cross-examination.

Thus, there is nothing in the correspondence between Dr Tully and Professor Monagle creating an obligation of disclosure, let alone that rises to the level of showing that the applicant is innocent.
Finally, we reject the applicant’s allegation that Dr Tully took calculated steps to shield Professor Monagle from being subpoenaed. She simply asked him to carry out additional tests for inclusion in her report. The submission that this was somehow nefarious is devoid of merit.
Ground 3 is not made out.

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

In the notice of appeal, this ground is limited to two particulars:
The prosecution could not have the excluded the reasonable possibility that the death of the deceased was caused by
(i) choking during the course of feeding; or
(ii) unknown medical cause/s.
Neither particular concerns the validity of the triad. However, in his written case, the applicant submits that there are three obstacles to conviction in this case. In addition to the failure to exclude the possibility of death caused by choking or an unknown medical cause, he takes aim at ‘the triad’, which he says is ‘unscientific’. His oral submissions were principally directed to arguing that this was a case in which the triad was the diagnostic tool that was used to find inflicted head trauma, and that it was unreliable and insufficient to establish guilt.
The second obstacle to conviction, according to the applicant, is the prosecution’s inability to exclude the reasonable possibility that a choking event caused Alanah’s death. The applicant submits that this arises as an alternative, reasonable hypothesis because of the account he gave in his record of interview that Alanah became unwell when he was feeding her with a bottle. According to the applicant, this is consistent with Holden’s evidence of his treatment of Alanah.
The third obstacle to conviction, the applicant submitted, was the prosecution’s inability to exclude the reasonable possibility that Alanah’s death was due to unknown medical cause(s). The diagnosis was exclusionary and could only exclude known medical conditions and medical conditions which were considered, but which were not necessarily tested comprehensively or exhaustively.[10] According to the applicant, the ‘unavoidable reality’ is that some infant deaths remain ‘unidentified’ or ‘unascertained’[11] and without a criminal act.

Discussion

[10]In this respect, the applicant submits that there appears to have been little, if any, investigation of the possible genetic causes for Alanah’s death.

[11]Quoting R v Cannings [2004] 1 WLR 2607, 2609 [8] (Judge LJ for the Court); [2004] EWCA Crim 1.

The applicant must establish that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt.[12] That is, on the Court’s own independent assessment of the evidence,[13] the jury must, as distinct from might, have entertained a reasonable doubt about the applicant’s guilt.[14] In determining this ground, the Court must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility of determining the guilt or innocence of the accused.[15]

The triad

[12]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123, 146–7 [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (‘Pell’).

[13]SKA v The Queen (2011) 243 CLR 400, 409 [22] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13.

[14]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J); [2007] HCA 30; Pell (2020) 258 CLR 123, 147 [44]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.

[15]R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 (‘Baden-Clay’).

The applicant submitted that the ‘triad’ was the lodestar in the prosecution case against him and that his was the first conviction in Victoria based solely on the ‘triad’. The evidence adduced against him was expert in nature and pivoted on the presence of the triad and diagnostic pathway of exclusion by differential diagnosis which meant, according to the prosecution case theory, that the applicant had in some way, and by some means, shaken and/or inflicted head trauma to Alanah to cause her death.
The applicant submitted that the triad was vital to the prosecution case because the case was bereft of other manifestations of ‘mechanical injury’: there was no evidence of bruising to the head or chest, no fractures to the ribs or any other bones, no evidence of any damage to the spine or grip marks, and no evidence of axonal damage. In this context, despite the fact that the ‘triad’ remains at the level of a hypothesis, it was used to determine beyond reasonable doubt that the applicant was responsible for Alanah’s death and that no other reasonable possibilities consistent with innocence were open. However, the triad is beset by circularity and confirmation bias which infected the prosecution case. Even Dr Iles and Dr Tully accepted that the ‘science’ behind the triad could not be described as the ‘gold standard’ in medical science.
According to the applicant, apart from the absence of any manifestations of mechanical injury, the prosecution case was contradicted by overwhelming evidence that he had been nothing other than a devoted, attentive and involved father who had manifested great love and affection to Alanah in her short life. Those contra-indicators in the evidence strongly pushed away from conviction.
For her part, however, Dr Tully abjured reliance on the triad:
So the triad is a term the medical community don’t fully accept. Alanah actually didn’t have the triad because she had spinal subdural haemorrhages. So the triad is the combination of subdural haemorrhages around the brain, retinal haemorrhages and encephalopathy, signs of damage to the brain. Certainly, those three features are strongly suggestive of an inflicted head trauma but not necessarily. So the idea that just the presence of those three things means that the medical community diagnoses inflicted head trauma isn’t entirely correct. They have to be subdural haemorrhages of the particular pattern, type and location, retinal haemorrhages of the particular pattern, type and location and encephalopathy, and in then coming to the conclusion that the most likely cause of those findings is inflicted head trauma, you must go through a rigorous process of excluding alternative causes. So, I think just saying that the medical community accepts the triad alone is not entirely correct.
The gravamen of this evidence is, first, that Alanah presented with features indicating trauma to the head in addition to the three triad features and, secondly, that the pattern, type and location of the triad features is distinctive.
It was uncontroversial that Alanah presented with features in addition to those that make up the ‘triad’. She had subarachnoid haemorrhages, torn bridging veins and subdural haemorrhages around the spinal cord.
Much of the oral argument before us was directed to establishing that the evidence about the causes of these additional features — Alanah’s subarachnoid haemorrhages, torn bridging veins and subdural haemorrhages around the spinal cord — was inconclusive and that this was, in fact, a ‘triad’ case, that is, a case that stood or fell on the validity of the triad.
Thus, the applicant submitted that it was open to find that the spinal subdural haemorrhages were caused by blood tracking down from the brain rather than direct injury to the spine.
However, Dr Tully rejected this hypothesis:
I accept that [blood tracking down from the brain] is very well recognised and generally the commonest cause of spinal subdurals in inflicted head trauma. In Alanah’s case there were no blood products identified in her posterior fossa, either on imaging or at autopsy, and there was no ligamentous damage to her neck identified, so I think that under those set of circumstances it’s unlikely that the spinal subdurals arose as a result of tracking, and more likely that they arose as a result of direct trauma to that area.
…
I think it would either be direct impact trauma to that area or, and possibly more likely, damage to the vessels as a result of forceful bending, flexing of the spine that may occur during shaking; so the spine itself gets forcefully bent backwards and forwards and causes tearing.
For her part, when asked about possible causes of the spinal subdural haemorrhages, Dr Iles said:
So the two potential causes: the first is that blood in the subdural space around the cerebrum, so the subdural haemorrhages that have been described over the convexities, that blood has tracked via gravity down the subdural space from the cerebrum through the posterior fossa to surround — to occupy the subdural space around the spinal cord. So that’s one possibility. The other possibility is more localised trauma has been applied to the spinal cord resulting in that finding of subdural haemorrhage around the cord. Now, my favoured explanation is the latter, and the reason why I favour that explanation is [that] we did not identify subdural blood in the posterior fossa. So, in order to get from here (indicates) to the spinal cord, the blood has to traverse the posterior fossa. I did not identify any there and as far as I’m aware none’s been identified on medical imaging which suggests that it would be unlikely if something was going to track from here down to here that you would not see something along the way. But because I cannot exclude the possibility that that’s happened I’m leaving those two propositions open, but my more favoured explanation is more localised trauma to the cord.
The expert evidence was therefore that the most likely explanation for Alanah’s spinal subdural haemorrhages was localised trauma. On the basis of this evidence, it was plainly open to the jury to find that, in addition to the triad features that were present, Alanah’s spinal subdural haemorrhages were a feature that might indicate shaking.
The second topic raised by the applicant to challenge the proposition advanced by Dr Tully that this was not a ‘pure’ triad case concerned the possibility that Alanah suffered ‘re-bleeding’ of existing haemorrhages.
On examining Alanah’s brain post-mortem, Dr Iles found membranes indicating a ‘remote’ or previous subdural haemorrhage. Dr Iles gave evidence that the membranes could have resulted from bleeding during birth.
The applicant submitted that Dr Iles accepted that there were, in fact, ‘remote’ bleeds in the same location as the acute bleeds on 29 August 2015, and it could therefore not be excluded that Alanah had ‘chronic bleeding, subarachnoid bleeds’ at the time of the birth and the possibility of re-bleeds at the same location.
As we understand the applicant’s submissions, the hypothesis that some of Alanah’s brain haemorrhages were caused by the re-bleeding of one or more existing, birth‑related subdural haemorrhages was put forward to explain the subarachnoid haemorrhages that were identified and thereby to eliminate them as features additional to the triad features. Once again, Dr Tully and Dr Iles gave clear and cogent evidence rejecting this hypothesis.
Dr Tully agreed that re-bleeding of birth-related subdural haemorrhages can occur and that she could not exclude birth as a possible cause. However, those re-bleeds are small, and the vast majority do not cause any clinical symptoms. They have never been identified as causing catastrophic collapse. Thus, although Dr Tully could not exclude the possibility of some chronic re-bleeding, she emphatically rejected the idea that a spontaneous re-bleed could have caused Alanah’s sudden collapse.
Dr Iles gave evidence that she could not be certain as to whether there was more than one occasion of bleeding and could not exclude the possibility that there had been some chronic bleeding in Alanah’s case. However, she said:
So, what we have in Alanah is subdural haemorrhages in multiple — acute subdural haemorrhages in multiple different compartments, so above the tentorium, on either side of the convexity and about the falx, so basically you’d be suggesting that you’d be having spontaneous re-bleeds in multiple different places around about the same time and I think that’s incredibly unlikely.
…
I think that proposition of having spontaneous re-bleeds from membranes which don’t actually show capillaries, but I am being generous … saying perhaps there are some tiny capillaries in there. I’m talking tiny capillaries, so very, very small blood vessels. So the possibility that re-bleeding from all of those sites occurring at the same time from tiny blood vessels producing the volume of blood that we’ve observed in Alanah — I do not believe that is possible.
In a long answer to a question about whether there was any mechanism by which sites of older bleeding might re-bleed to cause Alanah’s collapse, Dr Iles referred to the ‘confected controversy’ that hypoxia could cause the re-bleeding of an earlier haemorrhage. In this regard, Dr Iles said:
Membranes are very common, we — I observe them, as I mentioned yesterday, between 30 to 40 per cent of the cases that I examine of children who die of SIDS and other causes, and there’s no evidence to suggest that minor re-bleeding in these membranes is injurious to children. Now, the proposition has been raised that, in the condition of hypoxia, that that might actually predispose to re-bleeding from these delicate membranes, so whether that be through oxygen deprivation to the cells that form the capillaries, whether that be due to vasodilatation of those capillaries and increasing leaking of blood vessels, those mechanisms have been posited. It’s my view that, for example, if in a post cardiac arrest state and there was vasodilatation that resulted in significant leakage from delicate capillaries, not only would we see haemorrhages in the brain but we would see them in other areas of the body that contain delicate capillaries. For example, the delicate capillaries that line the surface of the lung, the delicate capillaries that sit on the thymus, the ones that sit on the surface of the heart. So there is no reason why, if hypoxia causes that type of re-bleeding, why it should just be localised to the brain, you should see it in other body compartments, and there’s no evidence that that has occurred. So, from — I professionally reject the hypothesis that re-bleeding of these membranes can cause a sudden precipitous collapse absent the scenario when we actually have a large volume bleed inside the brain.
Dr Iles also said that if a re-bleed were the mechanism that caused Alanah’s collapse, she would not expect to find torn bridging veins, retinal haemorrhages or bleeding in the subarachnoid area.
This, in our view, disposes of the ‘re-bleed’ hypothesis, whether relied upon to limit the diagnosis to a ‘triad’ diagnosis or put forward as an alternative hypothesis to explain Alanah’s death.
As to the torn veins between the surface of the brain and the superior sagittal sinus — the torn bridging veins — the applicant submitted that the evidence opened the possibility that they were an artefact created in the post-mortem process rather than a sign of mechanical trauma to the head.
It was put to Dr Iles that there was a test that would have established whether there were torn bridging veins prior to the post-mortem examination, but it was not carried out. She agreed that no such test was undertaken. Dr Iles accepted there was no evidence about whether there were any torn bridging veins before the post-mortem examination and that it was possible that they were an artefact created in the post-mortem process. However, when asked directly whether the bridging veins had been damaged in the process of removing Alanah’s brain, Dr Iles answered ‘no’. She explained:
So we’ve developed a technique to enable us to expose the brain and its dural coverings without disrupting the bridging veins that extend between the top of the brain to the superior sagittal sinus. So it’s a routine practice now for us in all infant cases to carefully perform that dissection so that we can observe whether the bridging veins are intact or not. So we know through our normal processes that we can perform this examination without disrupting those structures. So in this instance, I could observe that there were only a couple of residual bridging veins present, the majority of them appeared disrupted.
Dr Iles gave evidence that there was a fibrinoid change in the wall of the blood vessels which can only happen during life, and if the bridging veins had been torn or broken after Alanah died, Dr Iles would not have expected to see the bleeding that she saw in those areas. While she always had to be cognisant of the possibility that torn bridging veins could be an artefact created in the post-mortem process, in this case she had the other pieces of evidence which made her comfortable that the torn bridging veins were not such an artefact.
Dr Tully agreed that in this case, there was no evidence of ante-mortem torn bridging veins other than in the distribution of subdural haemorrhage. She said that she had read that it was possible to tear bridging veins in the post-mortem process, but would defer to Dr Iles in this regard. She thought this was something that the pathologist had to be aware of and take care with.
In our view, it was open on the evidence of Dr Iles and Dr Tully for the jury to accept that the torn bridging veins formed part of the diagnosis of inflicted head trauma.
We have concluded that, having regard to the way in which the specific matters raised by the applicant were dealt with in the evidence, the matters relied upon by the applicant are not sufficient to disturb the findings of Dr Iles and Dr Tully in relation to the features indicative of inflicted head trauma in addition to the three features identified as constituting the triad.
Moreover, the attack on the triad itself is overly simplistic and does not take into account the methodology actually deployed by the medical experts. As in Vinaccia,[16] there was no simple ticking of boxes to diagnose head injury in this case.
[16][2022] VSCA 107.
In our view, nothing in the expert evidence on the topics singled out by the applicant calls into question the diagnosis of inflicted head trauma. The expert evidence stepped through, in detail, the mechanism for shaking injuries and reasons why other explanations for the injuries suffered by Alanah could be excluded. Ultimately, the evidence before the jury painted a detailed picture that extended well beyond the mere existence of the three ‘triad’ features. That evidence also provided an ample basis for the jury to exclude other hypotheses for Alanah’s death.

Choking and other causes

The hypothesis that Alanah may have choked, leading to cardiac arrest and hypoxia, was largely based on the evidence of the milky clotty substance found on her jumpsuit and in her mouth.
Dr Tully gave evidence that the kind of liquid observed by Holden could not obstruct Alanah’s airways so as to cause a choking event that could lead to cardiac arrest. It will be recalled that she rejected the proposition that choking on formula could have caused Alanah’s cardiac arrest and HIE. While choking on objects or solid food substances that obstruct the airway can cause cardiac arrest, that is not the case with a liquid. The clotted milk or curdy substance that babies vomit does not block the airway so as to cause a choking event leading to cardiac arrest. Aspiration of liquid is not common in developmentally and neurologically normal infants, and is not an explanation for subdural haemorrhages, retinal haemorrhages or spinal subdural haemorrhages.[17]
[17]See above [61].

There was no evidence in chest x-rays taken of Alanah on 29 and 30 August 2015 of aspiration in the lungs that might suggest choking. Importantly, a choking event would not explain Alanah’s subdural haemorrhages, torn bridging veins and retinal haemorrhages.
The applicant himself told police that after Alanah choked on her formula and was burped, but she went back to sleep and did not show signs of distress.[18] This is inconsistent with the hypothesis that Alanah’s airways were obstructed.
[18]See above [27].
More generally, the applicant contended that:
(a)Alanah remained asystolic for 37 minutes. Dr Iles and Dr Tully both agreed such a period of asystole could have caused hypoxia.
(b)A CT scan of Alanah’s brain at 6:03 pm on 29 August 2017 showed raised intracranial pressure. An MRI performed on 30 August 2017 showed the intracranial pressure had worsened. According to the applicant, this is consistent with a cardiac arrest from choking leading to the development of features mimicking the triad.
(c)Full blood examinations conducted after Alanah’s arrival at the Royal Children’s Hospital revealed that Alanah’s level of haemoglobin and haematocrit were normal at the time of the first examination, then dropped. According to the applicant, Dr Tully agreed that those figures may indicate that Alanah was bleeding after she arrived at the hospital. The applicant argued that this is significant because, if the applicant had inflicted head trauma, Alanah would have bled at the time the trauma was inflicted. Other reasonable hypotheses are therefore in play.
(d)The prosecution’s case theory is improbable and implausible. If the applicant had ‘snapped’ and violently shaken Alanah, then Alanah would have collapsed immediately and could not have taken a feed. But there was evidence that Alanah had, in fact, been fed.
The applicant’s suggestion that the fact that Alanah bled after arriving at the hospital might explain these features is not supported by the evidence. We have set out Dr Iles’ evidence about hypoxia not being the cause of the cerebral bleeding at [110] and [111]. Dr Tully rejected the proposition that Alanah’s haemoglobin and haematocrit levels pointed to the absence of significant bleeding prior to Alanah’s arrival at the hospital. She said that the more likely cause of the decline in haemoglobin and haematocrit levels once Alanah was at the hospital was not bleeding but haemodilution from Alanah receiving fluid as part of her treatment. Extensive tests were conducted of Alanah’s blood samples and lung fluid samples.
This leads to the last of the applicant’s propositions: it was not possible to exclude an unknown medical condition as the cause of Alanah’s HIE and death.

Unknown causes

The applicant submits that a fundamental issue in cases of this nature is the radical difference between medical science and law in the finding of ‘facts’. According to the applicant, medicine is different from the law in that it is accepted that ‘unknown causes’ for medical conditions that lead to death can and do exist that may, or may not, be determined with the passage of time and advancement of scientific knowledge.
The respondent submits that the possibility of diseases of which medicine is unaware must be considered in the context of the evidence in this case: the extent and nature of Alanah’s injuries, and the rigorous process of exclusion of alternative causes that took place. In those circumstances, the hypothesis of unknown medical causes leading to Alanah’s presentation does not rise above mere speculation.
While Dr Tully accepted that medicine develops over time, that new potential causes or explanations can come to light and that ‘we can’t exclude things we don’t know about’, the medical witnesses were confident in their diagnosis of inflicted head trauma and about the stringency and reliability of the diagnostic technique employed.
Dr Tully was cross-examined about a case in the United Kingdom where a child who exhibited the ‘triad’ symptoms was found to have a rare disease known as Ehlers-Danlos syndrome. Dr Tully gave evidence that as a result of the case, full genetic testing was undertaken in relation to both Alanah’s parents and Alanah’s remains. The result of that testing was that Alanah was found not to have Ehlers-Danlos type 4, nor did she have any other genetic mutation that might possibly have caused or contributed to her conditions.
In our view, the applicant’s submission is devoid of substance. It is trite law that for an inference to be reasonable, it must rest upon something more than mere conjecture.[19] In considering a circumstantial case, ‘all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’.[20] It cannot be that a conviction based on solid medical evidence can be set aside simply on the basis that medicine is an evolving discipline.
[19]Peacock v The King (1911) 13 CLR 619, 661 (O’Connor J); [1911] HCA 66; Barca v The Queen (1975) 133 CLR 82, 104 (Gibbs, Stephen and Mason JJ); [1975] HCA 42; Baden-Clay (2016) 258 CLR 308, 324 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.
[20]R v Hillier (2007) 228 CLR 618, 637 [46] (Gummow, Hayne and Crennan JJ); [2007] HCA 13; Baden‑Clay (2016) 258 CLR 308, 324 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35.
Ground 4 is not made out.

Conclusion

None of the proposed grounds of appeal is made out.
The applicant has applied for an extension of time in which to bring this appeal. Having regard to the lack of merit in the proposed grounds, the application for an extension of time is refused.

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[2023] VSCA 193

18 August 2023