MacPhee v The Queen

[2005] HCATrans 783

[2005] HCATrans 783

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B48 of 2005

B e t w e e n -

LOUISE JULIE MacPHEE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 SEPTEMBER 2005, AT 9.32 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.J. CALLAGHAN, SC, for the applicant.  (instructed by Boe Lawyers)

MR M.J. COPLEY:May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Thank you.  Mr Walker.

MR WALKER:   Your Honours, there are two ways in which we present this case for the grant of special leave.  The first, which transcends or goes beyond the issues of the particular case concerns the way in which reasoning from this Court’s decision and reasons in Pfennig’s Case, a body of evidence described by the trial judge, and surely as a matter of common ground as being highly prejudicial, was admitted into this trial of a charge of unlawful homicide against a mother.

GUMMOW J:   This is the evidence respecting the injuries to the other two infants, is it?

MR WALKER:   That is so, yes, your Honour.  The circumstances presented themselves starkly in relation to the number of possibilities for the introduction of such highly prejudicial evidence of uncharged acts against the mother.  The circumstances were of course that the only other rationally possible perpetrator was the little boy’s sister, 7½‑years‑old, almost twice the average weight for her age and a tall girl.

KIRBY J:   But as I understand it the evidence suggested that the sister could not have performed the acts that were necessary to cause the injuries to the other children.

MR WALKER:   With respect, your Honour’s understanding is erroneous, but your Honour has correctly understood a suggestion advanced by the Crown.  The evidence did not support that at all.  Justice Fryberg in the majority in the Court of Appeal against us, for example, makes it clear – application book 68, paragraphs [98] and [99], that there was simply no evidence to support the hypothesis that the degree of force required for the peculiar fractures of the other two little boys, let alone the awful injury of the dead little boy, there was no evidence to suggest that that was beyond the capacity of this 7½‑year‑old very large girl.

GUMMOW J:   At page 95 in paragraph 37 it is said that:

This body of evidence was not admissible on any basis.

Is that true?

MR WALKER:   That is what we contend for by reason of a proper understanding of what this Court ruled in Pfennig.  I referred earlier to the possibilities raised by those reasons for the admission of such evidence.

KIRBY J:   It is very powerful evidence.

MR WALKER:   That is what we mean by highly prejudicial, of course, your Honour.

KIRBY J:   I understand that, but, on the other hand, if it is very powerful on one view it is very relevant that the tribunal of fact, the jury, should consider its interpretation, otherwise we are requiring juries to decide cases without reference to what are possibly very significant events.

MR WALKER:   Your Honour, the rule administered on lower courts’ understanding of this Court’s reasoning and statements in Pfennig is of course an exclusionary rule and there might be, as it were, a travestied Benthamite approach that all exclusionary rules have a vice that needs to be controlled, but, with respect, those days are long gone and probably were never in vogue in any event.

It is excluded precisely because what is required is a fair trial of the charge – of the act charged – and as Perry’s Case, the lady whose households kept being interrupted by the untimely death, husbands and brother, the discrimination practised in that case as to the proper admission of evidence where there was only one putative perpetrator really highlights the extremity, we would submit, of the error of admission in this case of this body of evidence.  The possible catalogues of the introduction of evidence which would otherwise be inadmissible because highly prejudicial, in exactly the way Justice Kirby has noted, as being in the nature of propensity evidence or whatever other word is attached to it ‑ ‑ ‑

KIRBY J:   It is not just propensity, though.  This is the problem.  The evidence is there – some evidence against your client, then you seek to rebut that by saying it was the sister and then the Crown has to be in a position, as it were, to deal with that alternative hypothesis.

MR WALKER:   Can I go directly to that point?  The catalogue that was raised by Pfennig as a checklist, as it were, includes accident relationship.  Your Honours have seen in the written submission that notwithstanding the reference by Justice Williams to relationship as being a ground of admission that that is disavowed by the Crown.  We have in Justice Williams’ reasons this notion of a link, a link between the accused and the killing being established by the evidence of the other uncharged act, but as Justice Holmes points out, the evidence is incapable of shifting as between mother and sister, whether it is more likely that a mother would do all three, that is, would inflict injuries on all three, or whether it was more likely that a sister would do that is of course in the realm of speculation about which there was not evidence.

A jury question, perhaps, but a jury question on the basis of evidence which was relevant to the acts charged against the accused and in a way which would rationally permit beyond reasonable doubt there to be the exclusion of the hypothesis consistent with guilt.  That is the point about Pfennig.  At the top of page 484 of 182 CLR and in the middle of page 485 there is a passage which, with respect, produces difficulty in this case, has produced difficulties in other cases, see, for example O’Keefe in the Court of Appeal in Queensland and this case well demonstrates that unless the admonition uttered by this Court is understood in a way different from the way it was it was understood and applied by the Court of Appeal in Queensland in the case before your Honours today that this is evidence which will become admissible precisely because it is prejudicial, precisely because it is evidence which a jury might use illegitimately as we submit they must have done in this case.

At the top of page 484, concluding the passage about the balance, in effect, between probative and prejudicial effect their Honours talked about the evidence putatively to be admitted as such as would raise:

the objective improbability of some event having occurred other than that asserted by the prosecution –

In other words, that there is no reasonable view of the evidence consistent with the innocence of the accused and there has been, as your Honours know, a controversy about how one understands that expression “the evidence”.  We submit that it means and should be read as meaning the tendered evidence in the context of the whole case.  Then at page 485 were there doubts about that passage.  It is, in our submission, even clearer under the heading – all important heading – showing that this is intended as guidance for the conduct of future trials, “The role of the trial judge in admitting propensity evidence”, their Honours said it:

is circumstantial evidence –

that is why we have raised our Shepherd’s Case point –

and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances.  More than that –

these are emphatic words which, in our submission, have certainly been misapplied, but with respect, misunderstood in the present case -

the evidence ought not to be admitted if the trial judge concludes that, viewed in the context of the prosecution case, there is a reasonable view of it –

that is the most troublesome word of all –

which is consistent with innocence.

O’Keefe’s Case is, of course, the well known attempt by the Queensland Court of Appeal to understand what that means in relation to the probative value of the evidence in question.  However, leaving aside textual cruces for a moment and gathering the meaning that on any approach would to be gathered from those passages, what can be said about the evidence in question in this case.  None of the three judges, and of course we rely most heavily on the way Justice Holmes puts it in the passages that your Honours will have seen on pages 80 and 81 of the application book, especially page 81, none of the three justices ‑ ‑ ‑

GUMMOW J:   She would have entered a verdict of acquittal.

MR WALKER:   Yes, and for reasons which, when one looks at the matter, not only through her eyes but through the eyes of her brothers on the Bench, with respect, was very compelling.  At the top of page 81, paragraph [152] is the passage to which Justice Gummow was referring.  The material which would be left to the jury in the absence of this highly prejudicial and we submit inadmissible evidence was such as not to permit rationally the exclusion of the reasonable doubt.

KIRBY J:   Where does the reasonable doubt come from?

MR WALKER:   There were two people and nothing to pick between them and that is the point of the evidence to which we object as to its tender, as to its admission.  None of the judges points out how it is that the same person – the same person inflicting injuries on all three little boys, how that ‑ ‑ ‑

GUMMOW J:   You are really saying it is not a similar fact.

MR WALKER:   Quite so.  In our submission, this does not have the specific connection element that Pfennig talks about.  It certainly does not have the compelling characteristic that would permit the probative effect to outweigh the prejudicial effect.  The prejudicial effect is enormous in the charged atmosphere of a killing alleged against a mother.

KIRBY J:   That is true and in a sense that is the other side of the coin.  It is enormous because the probative effect is potentially – depending on what the jury makes of it – very powerful of guilt of your client.

MR WALKER:   But when there is another person with the opportunity, no less motive ‑ ‑ ‑

KIRBY J:   But I thought I read that this required a certain compression fracture and that that could not have been done by a girl of this weight and size.

MR WALKER:   There is, as Justice Fryberg points out emphatically, no evidence of that at all.  Certainly, the jury were invited to consider the question of the force involved in choosing between mother or sister.

GUMMOW J:   Where is that passage in Justice Fryberg?

MR WALKER:   The passage of Justice Fryberg is at page 68, paragraphs [98] and [99] and the passage where the jury were invited to consider the question of force includes in the summing‑up page 18, about line 5, so that it is simply not the case that this was one where, with the assistance of experts, and the experts were all asked about force, it was possible for the jury to say, either of the killing itself or of the injury to the other two little boys, that this was beyond or at the extremity of the capacity of the sister.  It is not possible.

KIRBY J:   It will rarely be, as we know, in cases that it is absolutely indisputable.  There will generally be a matter of fact to be decided.

MR WALKER:   But the difficulty in this case, your Honour, is that when you admit the evidence of the other two it is impossible, rationally, to identify why that links to mother rather than to sister.

KIRBY J:   Justice Holmes said it led to mother on the probabilities.

MR WALKER:   No, she said it may have made it more likely.

KIRBY J:   I read her as saying that she thought it more probable than not that your client had committed the offence.

HEYDON J:   It went ‑ ‑ ‑

MR WALKER:   Page 81, paragraph [155], first line ‑ ‑ ‑

HEYDON J:   It went some way to making it more likely.

MR WALKER:   Yes, and then at the first line of [155], “at best” recognising, of course, that that is simply one view.  Now, it is not rationally capable of excluding the possibility that it was the sister.

KIRBY J:   Let us just for a moment pause on that assumption and therefore really this is not a case where this Court is asked to lay down some great principle of law.  It is all there in Pfennig and we are asked to apply settled principle to the facts of the case.  Look at our list today.  We are becoming the Supreme Court of Criminal Appeal of Australia.  I thought I got out of that when I left the New South Wales Supreme Court.

MR WALKER:   Well, your Honour ‑ ‑ ‑

KIRBY J:   Look at our list, Mr Walker.  I think all but about three or four cases are criminal appeals.

MR WALKER:   Your Honours appreciate that it is my task to persuade your Honours to choose our case.

KIRBY J:   I realise that.

MR WALKER:   And in our submission, this is, first of all to go to my second point in answer to your Honour’s observation, with great respect, an observation the force of which I recognise, of course the individual merits of this case, without implication for jurisprudence, is to the forefront of our appeal to your Honours today, of course.  A mother has been convicted of killing a child in circumstances which are truly horrible because the other possibility is the sister, her daughter, having caused the clearly deliberate injuries.

The position, however, is not that we do not have a transcendent point because when one goes, for example, to application book 67, paragraph [94], about line 35 or so, in Justice Fryberg’s reasons there is demonstrated, in our submission, an approach to Pfennig which really cannot sit with the passages to which I have already taken your Honours from that authority.  To quote selectively from that paragraph, about line 33 or so:

Reliance was placed on Pfennig v The Queen.  In my judgment that submission is not supported by that case.

That submission to which his Honour is referring is to be found just after line 30:

The submission was that the jury should have been told it could be so used only if there was no reasonable view of it which was consistent with the appellant’s innocence.

That was a submission well founded, verbatim taken from the second of the passages to which I took your Honours, namely, that at 182 CLR 485. So that we have in the Queensland Court of Appeal, and by reason of O’Keefe, no doubt, the reading of it which moves it away from what it means to the whole of the prosecution case, we have, true, an application of what is taken to be authority but in such a way as to require explication, correction by this Court in a case where the simplicity as well as horror of the facts provides an ideal test of whether in fact, far from the principles pronounced in Pfennig winnowing out prejudicial evidence but preserving that which is probative of issues truly raised – accident, for example – instead, we have here it being admitted precisely for its adverse prejudicial effect.

In our submission, this is a case where rationality does not enable one to identify how that evidence beyond reasonable doubt could implicate mother without leaving a reasonable doubt by reason of sister.

HEYDON J:   Your point is, although he was speaking about the terms of the judge’s directions it reveals a misunderstanding in Pfennig.

MR WALKER:   Indeed.  Your Honours, I have referred to Shepherd’s Case.  In our submission, Justice Williams demonstrates in the passage that one finds at page 64, paragraph [76], a way in which, albeit largely as a matter of the particular merits of our application, that is the injustice of this particular case, the very serious risk of a very serious miscarriage.  The passage starts by referring to the way in which this evidence could be used to establish a link, but of course then goes to say but that link itself is not indispensable, it was not an indispensable part of the proof to show that it was the mother who inflicted injuries on the other two little boys.

GUMMOW J:   On between three and eight occasions.

MR WALKER:   Yes.

GUMMOW J:   Of all of which the mother said she was ignorant.

MR WALKER:   Yes.  And, as your Honour knows, there was evidence – not challenged – of the sister having been seen “in a rather nasty way” – they were the words used by the eyewitness – “in a rather nasty way” jabbing one of the little boys but in a way which, the evidence also showed, left no external mark.  There is the evidence to which I do not have time to refer but your Honours are well aware of it which very greatly informed

Justice Holmes’ approach, upon which we rely, of course, of the extraordinary and disturbing conversation with the little girl very soon after the event.

KIRBY J:   Can I try again to express my anxiety about taking this case on.  It is a bit like Folbigg which we had in Sydney a few weeks back where a mother ‑ ‑ ‑

MR WALKER:   There is nothing equivalent to the diary that was in Folbigg – nothing at all so forceful ‑ ‑ ‑

KIRBY J:   That is true.  None of these cases are different and all of them are very ‑ ‑ ‑

MR WALKER:   They are, your Honour, but this is a case where the very starkness of the circumstances and the huge element represented by this prejudicial material, (a) provides an opportunity, in our submission, by this case alone demonstrated to be needed to correct ‑ ‑ ‑

KIRBY J:   You say that, but in the end it is going to be a judicial formula and it is not going to stray very far from Pfennig and so we would be sitting here as the Supreme Court of the country ploughing through facts and then trying to find some better way of expressing the puzzle that Pfennig addresses.

MR WALKER:   It is a relatively very short record.  May it please your Honours.

GUMMOW J:   Yes, Mr Copley.

MR COPLEY:   Your Honours, in the respondent’s submission this evidence was admissible because it was relevant.  The plea of not guilty put all matters in issue.  That is said commonly in the authorities, but of course in the circumstances of this case a plea of not guilty, for example, did not put in issue the question of whether these injuries were inflicted in the course of self‑defence.  However, in a prosecution for manslaughter the Crown has to prove first that the accused caused the death of the deceased, secondly, that the death was caused by means of a willed act.

In this case the evidence of the injuries to the other children bore directly upon the question of whether or not the injuries to the deceased baby were done by a willed act as opposed to, for example, someone tripping down the stairs with the child or accidentally dropping the child over a balcony or something of that nature.

GUMMOW J:   Can you just go back and explain the structure of the Code which necessarily gets one into this notion of willed act?

MR COPLEY:   Section 23 of the Code says that ‑ ‑ ‑

GUMMOW J:   Because it is from the structure of the Code that you are supporting the admission of this evidence.  I am not criticising you for it but I just want to understand the steps.

MR COPLEY:   All right.

KIRBY J:   I think Justice Gummow and Justice Hayne explained it in Murray, did they not, how you take those steps.  You have to be tolerant with us being non‑Code persons.

MR COPLEY:   Yes.  Pursuant to section 291 of the Code:

It is unlawful to kill any person unless killing is authorised or justified or excused by law.

Pursuant to section 293 of the Code:

any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

Pursuant to section 300 of the Code:

Any person who unlawfully kills another is guilty of a crime, which is called murder or manslaughter, according to the circumstances of the case.

Any killing that is not murder is manslaughter.  It is submitted that to prove manslaughter the Crown has to prove, therefore, that by some act or act of the appellant she caused, that is to say substantially caused or substantially contributed to the death of the deceased baby and that, secondly, that act which caused or substantially contributed to the death of the baby was a willed act.  Section 23 of the Code says two things, that:

a person is not criminally responsible for –

(a)      an act . . . that occurs independently of the exercise of the person’s will; or

(b)      an event that occurs by accident.

The acts in this case would have been those actions which were required to cause two fractures to the baby’s skull.  So by pleading not guilty and saying “I didn’t do it”, it was incumbent upon the Crown to prove that whoever did it, in this case the appellant did it pursuant to a willed act, not inadvertently or accidentally.  So it then became most relevant for the jury to be aware that this injury to a person who was incapable of purposeful movement because he was only six weeks old was a bony injury.  Bony injuries were also present – coincidentally – in the bodies of the other two children.

KIRBY J:   You have answered Justice Gummow’s question and you have got us to the application of the Code but it has to be accepted that the evidence is highly prejudicial to the accused and it is really prejudicial because it is of other offences against other persons that are not charged and not before the jury and have an element of similarity and the question is whether it passes the Pfennig test.  What do you say about the reasonable hypothesis consistent with innocence of the other fractures or the other bony injuries?

MR COPLEY:   This prejudicial but relevant evidence was admissible because it demonstrated that the other injuries were caused to the babies but there was no mark left on the surface of their skin.

KIRBY J:   It demonstrated that the accused was guilty of them but only if you exclude the other hypothesis which is said to be equally consistent with innocence of those injuries as of the injuries of the deceased baby.

MR COPLEY:   And that hypothesis is excluded by knowing that all of the injuries which were suffered were all bony injuries which would not necessarily have left, the doctors said, any external sign like a bruise or a red mark on the skin.

KIRBY J:   So what?  We are hypothesising not that this is some frenzied act, that these are just injuries to the babies which have caused bony injury internally.  Can one exclude the sister from the other injuries?

MR COPLEY:   One can exclude the sister from the other injuries because it is impossible to imagine that a girl of seven would be either sufficiently lucky or sufficiently cunning to be able to inflict injuries on these babies on between three and eight occasions without leaving some external manifestation of those injuries.

GUMMOW J:   That is the critical point, I suppose.

MR COPLEY:   It is far more probable that that sort of conduct would be engaged in by an adult than a child as young as seven, no matter how strong she might have been.

KIRBY J:   I find that is not very convincing because if the adult is so disordered as to be injuring babies she is not going to be paying a lot of attention to external injuries, she is just going to be disordered.  It may simply be fortune that these injuries, and fortune either for whoever did it, that the injuries did not lead to external signs.

MR COPLEY:   That, in my submission, is the point that it gets past fortune.

KIRBY J:   You do get cases of siblings who are extremely envious of a baby or babies that come along.  It is a well‑known phenomenon.  So how can we exclude it in this case except you say there were no external signs, but there were no external signs if the mother did it, so it is a neutral fact.

MR COPLEY:   The mother said that she never heard the babies crying out in pain when she was in and around the house with R.

KIRBY J:   She might have just thought it was ordinary crying.

MR COPLEY:   The doctors said, your Honour, that these injuries would have caused really substantial pain at the time of their infliction.  R went to school.  The mother stayed home with the children all the time.  She had no husband living in the house with her.

KIRBY J:   I appreciate all that and I read Justice Holmes.  I am very affected by Justice Holmes’s dissenting opinion – very affected – and if we look at that what is wrong with her Honour’s reasoning?

MR COPLEY:   In my respectful submission, her Honour’s dissenting opinion cannot be characterised as a dissent which is, as it were, enthusiastic ‑ ‑ ‑

KIRBY J:   It sounds like it.  It leads to an acquittal.

MR COPLEY:   It is a dissent.

HEYDON J:   Its conclusion suggests some flaw in it.  It cannot possibly be the case that if an appeal succeeded there should be no new trial.

MR COPLEY:   No, your Honour.

HEYDON J:   I mean, given a strange conclusion one puts a question mark over the reasoning that led to the conclusion.

MR COPLEY:   Yes, but it is not a dissent that was enthusiastic or convincing, in my respectful submission.  Her Honour anxiously analysed the evidence, applied the correct test and came to that conclusion but their Honours – the majority – also thoroughly and carefully analysed the evidence and came to the conclusion that it was open to the jury to be satisfied beyond doubt of guilt and that, in my submission ‑ ‑ ‑

GUMMOW J:   Paragraph [159] does not lead to [160].  It is a matter of logic.

KIRBY J:   I take the force of that but we are still left with the question of whether there is an hypothesis of the injury to the other children which is consistent with the innocence of this applicant.  I thought I had read that there was some scientific evidence that it was just not possible for this sister to have caused the bony injuries, but the best you have is that there were no external signs, is that it?

MR COPLEY:   Yes, to the second part of the question.  In relation to your reading of the evidence my contention is that your Honour would not have read that in the evidence.  Your Honour may have read it from the supplementary record book because in the course of the hearing in the Court of Appeal Mr Justice Fryberg asked whether there had been any evidence led below as to the likelihood of R being able to generate the forces required to do the injuries and the answer to that in the Court of Appeal was, no, there was not.

KIRBY J:   What about pushing the child off a table or off a lounge or something of that kind?

MR COPLEY:   The doctors were unanimous in their opinion that a simple fall, the product of gravity, from shoulder height, even from an adult, let alone a 7‑year‑old, tall as she was, would have been insufficient to have generated the forces needed to fracture the skull.

KIRBY J:   She did say a curious thing, the sister, like, “What if I did this?”  She asked a question which was a very curious question.  Do you know what I am referring to?

MR COPLEY:   Yes, I do know the one you are referring to.

KIRBY J:   What was it that she said?

MR COPLEY:   “What if I dropped him?”

KIRBY J:   That is it.

MR COPLEY:   She asked that on 16 February, which was 24 hours after the incident.  Mr Justice Williams pointed out that it was not clear from the evidence whether that question was asked before her or after her first interview with the detectives and the significance of that is that in that interview the detectives asked the child whether she had dropped the baby, even accidentally.  It could be quite possible that the child did pick the boy up at some stage in the past and did drop him, but the point is that the evidence of the doctors was that a simple fall or a simple drop from shoulder height of a child as tall as her or even from an adult would have been insufficient to have generated the forces required to fracture the skull. 

So there may have been some minor incident in the past that this young child after having heard all of the talk in the house that no doubt occurred after the death, in the child’s mind she might have been frightened that, well, there was something that might have happened that I might have done that might have contributed to this or caused it but, realistically, on the evidence, whatever was concerning her need not have concerned her because the forces were akin to those involved in a high speed or in a motor vehicle accident, according to the doctor.

KIRBY J:   You put that very well and that is relevant to the offence charged but it is not relevant to – which is the issue before us – to excluding the evidence in relation to the offences not charged which, as I understand it, involve bony injury which was of much less significance, non‑threatening, non‑fatal, and that – I mean, there is at least a logical possibility that one person did one thing and another person did another and we are momentarily concentrating on whether the evidence in respect of the other two children ought to have been admitted or excluded.  What is the answer to that?

MR COPLEY:   My contention is that it would be completely unlikely that two persons living in the same house would be surreptitiously injuring these babies without either being aware of what the other was doing.

KIRBY J:   But that is on a hypothesis of deliberate, wicked action.  The hypothesis I am asking you to consider is a manslaughter in relation to the one child but accidental pushing or something of that kind to the other two.  Is that inconsistent with the evidence?

MR COPLEY:   I would submit that it is.  In relation to the lumbar injuries, the crush fractures to the base of the spine of D and H the doctor said that substantial force would be needed, as it were, to slam the baby down on to his bottom to cause that sort of injury.

KIRBY J:   Not a fall from a chair or a lounge?

MR COPLEY:   No.  D also had the broken shins on each leg and ‑ ‑ ‑

KIRBY J:   There is evidence that at this age that children’s bones are very malleable and will not show injury unless there is something substantial.  That was the evidence, was it not?

MR COPLEY:   That is so.  Dr Lamont said ‑ ‑ ‑

KIRBY J:   It has to be a substantial trauma.

MR COPLEY:   Yes.  Dr Lamont said it was really very rare to see any injuries to a baby’s ribs yet here D and H had broken rib or ribs, as did A.  So it is that combination of things, the degrees of force involved, the unlikelihood of two people inadvertently or advertently causing these injuries without the other being aware of it and the failure or the inability of anybody to observe injuries on the surface of the skin, all of which points at the end of the day inexorably to the conclusion that the adult was responsible.

GUMMOW J:   Yes, Mr Copley.

MR COPLEY:   Thank you, your Honours.

GUMMOW J:   Yes, thank you.  Yes, Mr Walker.

MR WALKER:   On that last point, your Honours, in the supplementary book at page 111, page 173 of the trial record, line 50, there is the evidence of the doctor to which my learned friend was just referring.  My learned friend used the word “slamming”.  The doctor used a rather less alarming word “bobbing” -“bobbing it down on its bottom”, that was the phrase used to describe the mechanism that produced the lumbar injury of which my learned friend refers and that is why ‑ ‑ ‑

GUMMOW J:   I am not sure we have these books.

HEYDON J:   If you want us to look at them you will have – I think they have just been handed to the Court Officer.

MR WALKER:   I do apologise.  We have extracted that passage on page 3 in paragraph 10 of our written submission.

KIRBY J:   Yes, I remember that, but do you say that is inconsistent with – well, of course it is consistent with your client being able to do it, but do you say that it is equally consistent with a child of seven being able to do it?

MR WALKER:   A large child of seven bobbing – the actual passage is, just above line 50.

GUMMOW J:   Page?

MR WALKER:   Page 111 of the book, 173 of the transcript:

If you can imagine the baby sitting up in front of you –

that happens often, even with little babies, as long as you hold them –

some sort of force going down along the length of the spine and a most likely cause would be picking the baby up –

and these are little premature babies –

bobbing it down on its bottom so that the spine is crushed along its length.

So that is the mechanism – we drew attention to that in paragraph 10 on page 3 of our written submission.  That is the mechanism ‑ ‑ ‑

GUMMOW J:  

And again, the degree of force that is required in that?‑‑‑Very substantial.

MR WALKER:   Yes, that is right.  But a very substantial degree of force involved in a mechanism of bobbing it down on its bottom.  Not a gentle bobbing of course, a very rough bobbing, and “rough” was a word used by observers of the sister’s previous treatment of the babies.

KIRBY J:   Yes, but it takes a lot of power to ‑ ‑ ‑

MR WALKER:   But my point is simply this in refutation of my learned friend’s answer to your Honour Justice Kirby’s question, the evidence did not include, as Justice Fryberg very plainly concluded, the evidence did not include material which excluded the degree of force inferentially required to inflict these injuries as being within the capacity of this sister.  That is the point. 

KIRBY J:   Mr Walker, Justice Heydon is right, is he not, that the proper order in a case like this where it is an evidentiary question is a retrial not an acquittal?

MR WALKER:   In practically every case that must be so.  However, in our submission, if one goes to the, we would submit, summary, but nonetheless telling description of the Crown case that precedes the sentence to which Justice Heydon has drawn attention, page 81, paragraph [152], when one goes to that it is difficult to see that any real component has been left out and that ought to give rise to doubt as to whether it would be proper for a retrial.

Now, I accept that the usual, almost invariable approach is to leave that decision to the executive, the prosecuting authority, I accept that.  Your Honours, page 17 of the application book, line 30, in the summing‑up the jury were reminded by her Honour, the trial judge, of the evidence which rather answers what my learned friend was saying concerning the mother claiming not to have heard the baby’s cry.

As to the particular injuries in question, her Honour herself describes the puzzling evidence of so many witnesses that the babies did not demonstrate distress when moved after the time when those injuries must have been inflicted.  Now, whether they are stoic babies or whatever, or the particular nature of what on the evidence must have been painful injuries, that rather casts into a different ‑ ‑ ‑

GUMMOW J:   Have a look at page 19, line 30.

MR WALKER:   Yes, your Honour.

GUMMOW J:   You may have done an unfairness to your opponent.  In respect of D it was “banging it down”.

MR WALKER:   That is Dr Lamont.

GUMMOW J:   Yes, yes.

MR WALKER:   I am obliged to your Honour.  In our submission, when your Honours then look at the way in which this evidence was directed by her Honour to the jury as being capable of being used, for example, when – particularly it culminates at page 24.  There was, in our submission, a recognition – following the admission of this evidence a recognition that there were severe difficulties in the use rationally of that evidence.  The passage in question starts at about line 30, goes to about line 50.  At line 40:

you may make use . . . to assist in deciding if she was responsible for A’s injuries, but only if you are satisfied that she inflicted those injuries . . . Otherwise you must completely disregard that evidence for the purpose of identification.

KIRBY J:   Could I just ask you ‑ ‑ ‑

MR WALKER:   So you may ‑ ‑ ‑

HEYDON J:   That is a sound direction.

MR WALKER:   Well, your Honour, it is watertight logically, but it amounts to this.  You can only use it for the purpose of identifying her with those injuries if you are satisfied that it identifies her with those injuries.  That is what she says.

HEYDON J:   First you must be sure that she inflicted the injuries on the other boys.  If you are not sure about that ignore that evidence or keep it out of your reasoning.  If you are, only then do you consider it in relation to the crime charged.  That is not only an accurate but a fair direction, is it not?

MR WALKER:   You have not heard me complain about the direction.  That is an illustration of the fact that this is evidence which, as it were, is pulled up by its own bootstraps.  There is no rational way in which that evidence can contraindicate the sister and thus implicate the mother.

HEYDON J:   Well, Justice Holmes thought it was – you got at least some distance towards it on a balance of probabilities.  I fully understand your submission about there is a difference between that and conviction.

MR WALKER:   The light says I cannot repeat that submission.  Your Honour understands it.

GUMMOW J:   Yes, you can.  Go on.

MR WALKER:   I do not need to repeat it, your Honour, but it is the passage in the middle of the second of the pages in Pfennig to which I rely upon.

KIRBY J:   What is your answer to that passage, it is a very powerful piece from Justice Evatt in Martin v Osborne.  Is it just that, well, since then we are wiser because we have Pfennig and other cases and we know more clearly the danger of similar facts?  He says that:

As human experience negatives the likelihood of repetition of disastrous accidents –

So that when you have a few of them what might have been explicable becomes suspicious.

MR WALKER:   Yes, but with Mrs Perry not all of those unfortunate events were admissible and she was really only the one person present at all of them.  We have two people present here.  As we said about the Brides in the Bath Case, there cannot be an analogy because there were not two husbands in that case.  There are two people in this case.  This evidence is incapable of discriminating between them to the level of cogency that this Court has required in Pfennig of such circumstantial evidence of uncharged acts.

GUMMOW J:   We will take a short adjournment.

AT 10.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.25 AM:

GUMMOW J:   We are not satisfied that there has been a miscarriage of justice in this case or that any other grounds are made out for the grant of leave.  The relevant principle, it is agreed, is stated in Pfennig’s Case (1995) 182 CLR 461.

On an appeal this Court would be doing no more than applying the principles in Pfennig’s Case to the facts of this particular case.  When those facts are examined, there are features in them which tend to confirm the conclusions reached by the majority of the Court of Appeal and to exclude the hypothesis implicating the infant sister of the victim.  These features include the degree of force required to cause bone injuries to the siblings of the deceased child.

Special leave is refused.

AT 10.26 AM THE MATTER WAS CONCLUDED