MIH v Regina

[2007] NSWCCA 199

New South Wales
Court of Criminal Appeal

CITATION:	MIH v Regina [2007] NSWCCA 199
HEARING DATE(S):	8 May 2007
JUDGMENT DATE:	5 July 2007
JUDGMENT OF:	Campbell JA at 1; Hidden J at 68; Smart AJ at 69
DECISION:	(1) Leave to appeal granted.; (2) Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – admissions – discretion to exclude evidence adduced by prosecution if, “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence” – where admission made to ambulance officers treating defendant’s dying infant son – whether unfair to defendant to admit the evidence – Evidence Act 1995, s 90 - CRIMINAL LAW – manslaughter – autopsy report – cause of death – reasonable doubt – whether alternative hypothesis concerning cause of death created reasonable doubt - CRIMINAL LAW – offences against the person – assault – inflict grievous bodily harm – reasonable doubt – whether alternative hypothesis concerning how injuries inflicted created reasonable doubt - EVIDENCE – criminal proceedings – judicial discretion to admit or exclude evidence – admissions – discretion to exclude evidence adduced by prosecution if, “having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence” – unfairness – Evidence Act 1995, s 90 - CRIMINAL LAW – APPEAL AND NEW TRIAL AFTER CONVICTION – role of court when considering appeal by unrepresented person against conviction
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Damic [1982] 2 NSWLR 750 R v Edelsten (1990) 21 NSWLR 542 R v Sophear Em [2003] NSW CCA 374 R v Swaffield (1998) 192 CLR 159 Regina v Fernando [1999] NSWCCA 66
PARTIES:	MIH - Applicant Regina - Respondent
FILE NUMBER(S):	CCA 2006/2379
COUNSEL:	Appellant in person N Noman - Crown
SOLICITORS:	Appellant in person Director of Public Prosecutions - Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0421
LOWER COURT JUDICIAL OFFICER:	Blackmore DCJ
LOWER COURT DATE OF DECISION:	15 September 2005

2006/2379

CAMPBELL JA
HIDDEN J
SMART AJ

5 JULY 2007

MIH v REGINA

Judgment

1 CAMPBELL JA: This is an application for leave to appeal, and, if leave is granted, an appeal from the conviction of the Applicant on 15 September 2005 on two charges. The first charge was of the manslaughter of his infant son IH on 15 October 2003. The second charge was of maliciously inflicting grievous bodily harm upon IH between 28 September 2003 and 15 October 2003.

2 The trial took place in the District Court at Sydney, before his Honour Judge Blackmore SC. The Applicant had elected for that trial to be by judge alone.

3 IH was born on 3 July 2003. It was common ground at the trial that he had died on 15 October 2003. Thus he was a little over three months old at the time of his death. IH was the second child of the Applicant and his wife FAA. Their other child was a daughter, SH, who was a toddler at all relevant times.

4 The Applicant was unrepresented at the application for leave to appeal. He relied on a written submission, the totality of which, apart from formal parts, read "argue against medical report from Coroner." There was no "medical report from Coroner" involved in this case. I take it that the Applicant means, by that expression, the reports setting out the results of an autopsy conducted on the child. The report of Dr Szentmariay, mentioned below, was headed "Autopsy Report for the Coroner".

5 As well, he relied upon a letter received in the court on 6 November 2006, in the first part of which he said that he relied on the fact that the "coroner's report"

"doesn't describe any disease or describe any natural genetic problems because the coroner covered the evidence because the police investigation want show this matter as like an act of violence, so he covered most of the evidence from the doctor (say nothing do nothing and your job is safe."

6 If that is an allegation of deliberate suppression or falsification of evidence by the authors of the reports that set out the results of the autopsy, or by any members of the police force, there is no evidentiary foundation for it whatever.

7 The second part of the letter received on 6 November 2006 said:

"I need you to ask this coroner's medical report again because some of my family they die from disease and some special, the youngest of my family, they are living in intensive care for some time waiting for operation and of them, some die from different disease."

8 If that is an application to reopen the evidence relating to the cause of death, no evidentiary basis whatever has been provided for any such course, leaving aside any difficulties of principle that there might be in adopting any such course. If it is a request for this court to reconsider the adequacy of the evidence on the basis of which the Applicant was convicted, I have done so, and set out the results of that reconsideration in the rest of this judgment. As well, I bear in mind the statement of Street CJ (with whom Slattery and Miles JJ agreed) in R v Damic [1982] 2 NSWLR 750, at 752, that when there is an appeal against conviction by an unrepresented person "the court has an obligation of considering any matter coming to its notice which casts doubt upon the validity of the conviction."

9 The judgment of the trial judge is, overall, a judgment that sets out the relevant principles and legal authorities accurately, and analyses the evidence carefully. In this judgment, I shall concentrate on the particular aspect of the judgment about which the Applicant complains, namely the medical evidence, and how it fits in with the evidence about whether there was an opportunity for anyone other than the Applicant to cause certain injuries to the child. I say at the outset, however, that after considering that evidence myself I can see no error in the trial judge's account of it, or in the use he made of it. Thus I will not repeat, in this judgment, every detail of the evidence upon which the trial judge relied.

General Health of IH

10 IH was well when seen by a general practitioner on 21 July 2003 (concerning an undescended testicle) and on 17 September 2003 (concerning an immunisation). A neighbour, Ms Jackson, minded IH on 2 October 2003 from about 8:30 pm to 11:50 pm, while the Applicant took SH to the emergency department of the hospital, as she was unwell. On that occasion, IH slept for most of the time, but woke for a feed around 10:00 pm (taking over half a bottle of formula), and was not crying or distressed in any way during the time he was awake. Ms Jackson minded IH for a short while on 12 or 13 October while the Applicant went out to buy some more formula, and on that occasion she noticed nothing amiss with the child, though he was asleep at the time. Ms Jackson and her daughter helped the Applicant to install an internal blind over a period of about 1½ hours from 4:00 pm to 5:30 pm on 14 October, on which occasion the child was asleep, but neither of them noticed anything amiss with him. There was also evidence from other friends of the Applicant, and from a relative of FAA, each of whom had looked after the two children on occasions after 13 September 2003, that they had noticed nothing amiss with IH. Dr Szentmariay found, upon autopsy, the baby to have been well developed and well nourished.

Mother's Movements and Conditions in Hospital

11 One of the submissions made on behalf of MIH at the trial was that there was a reasonable doubt about whether both the injuries from which IH died, and the injuries that founded the charge of inflicting grievous bodily harm, had been inflicted on IH by FAA. It is convenient to mention here the evidence concerning the opportunity she may have had to inflict any of those injuries.

12 FAA was admitted to Rozelle Hospital on 13 September 2003 as an involuntary mental health patient. She remained there until November 2003.

13 There were five separate occasions when the two children were brought to visit FAA in hospital. The first visit was on 15 September 2003, when the Applicant brought the children. At that time FAA was in the Observation Unit at the hospital.

14 Ms Philippa Mazoudier, one of the nurses on duty at the time, gave evidence:

“I noticed that [MIH] was stressed and very reluctant to allow [FAA] to breastfeed. His concern was that [FAA’s] medication would affect the baby boy. I noted that [FAA] was being inappropriate with family due to her mental state in that she was demanding to hold baby despite the fact that he was crying loudly. [FAA] was not holding her baby safely and seemed unable to focus.
During this visit, 15 September, the baby boy was fed a bottle of formula, but unfortunately [FAA’s] behaviour deteriorated and at one point she pushed her husband. [MIH] was advised to leave and he did so.”

Another nurse on duty that day, Ms Beverley Davies, gave evidence to similar effect.

15 The second visit with the children was on 21 September. Ms Rosalind Hull is a nurse who was on duty that day. The children were brought to visit by Mr RA and his wife, who are friends of FAA, and who were temporarily minding the children. Mr RA had not known that the condition of FAA was as severe as it was, and regretted having taken the children there at all. Both Ms Hull and Mr RA gave evidence that when the visitors wished to go, FAA was reluctant to hand IH back to them, but the handover was achieved after some minutes, without the child being injured in any way. Mr RA’s evidence was that after FAA had handed the baby back to him,

"The nurses were around us they were everywhere. I think they were actually watching us … She started to get irritated and I called the nurses so about 4 or 5 nurses came to us. At that time I wanted to leave. The nurses started to talk to her. She started to scream and I ran out of the room. She kept asking me "I want to feed him I want to feed him." She was abusing the nurses I can't remember if she actually touched [IH] but I had hold of him, there wasn't any struggle with the baby. There were five nurses there in between me and her and then when I took [IH] out of the room she was screaming very loudly."

16 On 22 September 2003 FAA was transferred to the Intensive Psychiatric Care Unit (IPCU), after two separate incidents in each of which she had been aggressive to a staff member. The IPCU is a locked ward, and is usually for patients who are aggressive or at risk of absconding. Patient stays in that ward are normally as short as possible and patients are transferred to an open ward when they are no longer aggressive and can be managed.

17 The visiting arrangements at the IPCU are that there is a visiting area that is locked from both the area outside the ward, and the main part of the ward itself. Both the visitor, and the patient that is being visited, are locked in this room for the duration of the visit.

18 The third visit with the children was on 28 September 2003, when the Applicant brought them. Mr Mark Geikowski was a nurse on duty at the unit that day. He reports:

“… I was working on the afternoon shift (B Shift) on the IPCU and again was responsible to nurse [FAA] as well as other patients. I have viewed the progress notes and I saw that I have stated that there was a dispute between [FAA] and her husband in the visiting area. I remember that on this day [FAA] was nursing her infant and her husband felt that it was time to leave, and attempted to take the child from her. [FAA] was cradling the infant against her breast. She wasn’t breast-feeding as I think that her milk had dried up, and she was dressed. She was sitting down and her husband got up to leave and [FAA] refused to hand over the child. She was saying, “Wait, wait,” which he did for about two minutes, and he also had another little girl with him.
Her husband then said that he had to go and attempted to take the baby from her arms. He approached her while she was still sitting in the chair. She turned sideways to her left and he approached her from her right. I was standing to her left and helped her husband in getting the infant. [FAA] was saying something like, “No, no, I want to hold him a bit longer.” He was saying, “ I have to go.” The infant wasn’t crying at this time, and it seemed as if it was oblivious to what was happening. When the baby was taken from [FAA] it was pretty much a smooth action. At the same time I was encouraging and imploring her to hand over the baby and be reasonable so her husband could go and the infant would not be injured. In my opinion the infant was not injured on this day. Her husband had hold of the infant’s legs but and was slowly taking the infant from [FAA] and I was trying to ease the top part of the infant from [FAA’s] arms.”

19 The fourth visit with the children was on the afternoon of Saturday 11 October 2003, while FAA was still in the IPCU. The Applicant brought IH in a baby capsule. A nurse on duty, Jennifer Thompson, left the family in the visiting room. She monitored them via a window from the nursing station a couple of times, and there did not appear to be any commotion or noise, or any problems, in the visiting area for the duration of the visit. The visit lasted for about an hour. There was no change in FAA’s state after the visit, and the Applicant and the children, according to Ms Thompson, "appeared fine when they have left".

20 FAA was transferred out of the IPCU, and into the ward known variously as Ward 25, or the acute admission ward, at 6:30 pm on Saturday 11 October 2003. It has 22 beds. During the day it has at least four staff members on a shift, and at night three staff members. It is not a locked ward.

21 The fifth and final occasion when the children visited FAA was on 14 October 2003, the day before IH died. Again it was the Applicant who brought them. The ward that FAA was in by that time had a lounge room, containing a television, hi-fi system, lounges, and enough chairs for about twenty people. It was the place where visits to patients were supposed to take place. One of the nurses on duty at that time was Ms Linda Brown. She gave evidence that the visit started between 7:00 and 8:00 pm, and lasted an hour or an hour and a half; that during the visit FAA gave most of her attention to SH; that "as a family unit they were not together very long, in visit terms"; that IH remained asleep in a baby capsule near his father for the whole visit; that she spoke to the Applicant, admired the baby, and touched it; and that she saw no arguments between FAA and the Applicant, "no tenseness, no arguing, they seemed fine”. Ms Brown also gave evidence concerning the lounge room, "there's always people in there: other patients or visitors or staff, domestics – in and out, yeah." There is evidence that FAA at one time took her daughter upstairs to change her, and took her daughter out of the lounge room on occasions, but no evidence of either the Applicant or IH leaving the lounge room at any time during the visit. Other nurses on duty at that time were Mr Peter Lai, Ms Janet Charnock, and Mr Simon Snare. Ms Charnock gave evidence that during the visit the baby was always in the capsule, and so far as she was aware was asleep. Mr Snare’s evidence advanced matters little, save that he gave no evidence of seeing either the Applicant or IH out of the lounge room. Mr Lai’s evidence from the committal hearing was tendered at the trial, and establishes nothing beyond that he recollects nothing unusual in the course of that visit.

Events Immediately Prior to IH’s Death

22 On the morning of 15 October 2003, at about 7:45 am, Ms Jackson received a telephone call from the Applicant who asked her, with some urgency, to come. She went to the Applicant's house immediately. IH was in his cot. Ms Jackson observed that his face looked pale, his face was cold to her touch, but his hand, which had been covered by a sheet, felt warm. She told the Applicant it was necessary to get the child to hospital, and ran to her own home and quickly dressed. On returning to the Applicant's home, she picked up the child from his cot, and in the process of taking him to the front door decided some help was needed. She told the Applicant to ring an ambulance.

23 The Applicant made a telephone call to 000. That resulted in an ambulance officer very soon thereafter receiving a call to attend the Applicant's home. The ambulance officer received that call at around 8:00 am on 15 October 2003. Meanwhile, on instructions from the 000 operator, Ms Jackson's daughter gave the child mouth-to-mouth resuscitation. Two ambulance officers went there, arriving at a time one of them put at 8:08 am. They found IH was lying on the living-room floor, unconscious, with no pulse, and not breathing. One of the officers gave evidence that the baby was warm to touch, was not breathing, had no femoral pulse and was unresponsive to painful stimuli. The ambulance officers commenced cardiopulmonary resuscitation. Two paramedics arrived soon after, and continued the treatment. One of the paramedics, Mr Stewart Clark, gave evidence that when they arrived at 8:16 am they found IH was "relatively cool to touch". They took him by ambulance to the Emergency Department of Canterbury Hospital, continuing cardiopulmonary resuscitation on the journey. IH arrived at the Emergency Department at 8:48 am in cardiac arrest. He did not at any time respond to resuscitation attempts, whether from the ambulance officers, the paramedics, or at the Emergency Department. He was pronounced dead at 9:08 am.

The Medical Evidence

24 The Crown case against the Applicant was a circumstantial one. It relied on expert medical evidence, the most important of which was obtained in the course of an autopsy that was carried out on the body of IH on 17 and 18 October 2003, and the lack of opportunity of anyone other than the Applicant to inflict the type of injuries that were revealed by that medical evidence. The autopsy was carried out, with one important exception, by Dr Istvan Szentmariay, a forensic pathologist employed by the Department of Forensic Medicine at Glebe.

25 The exception just mentioned is that a detailed examination of the brain of the child was carried out by Dr Michael Rodriguez. He is a neuropathologist, who specialises in examining brains.

26 Other medical evidence was given by Dr Christopher Wong. He is a paediatric radiologist who examined x-rays of the chest of the child that were taken on 29 September 2003 and 15 October 2003, and an ultrasound of his liver taken on 1 October 2003. Dr Paul Tait, a consultant paediatrician, gave evidence of his opinion of factors contributing to death, on the basis of primary findings of other medical experts.

27 The autopsy report of Dr Szentmariay made a number of findings, as follows:

“ PATHOLOGY SUMMARY
BILATERAL SUBDURAL HAEMATOMA (LEFT 22 ML, RIGHT 20 ML) WITH HISTOLOGICAL EVIDENCE OF MORE THAN ONE EPISODE OF BLEEDING.
NEUROPATHOLOGICAL EXAMINATION:
1. Multifocal subarachnoid haemorrhage of different ages.
2. Organising thrombus, left parasagittal frontal bridging vein.
3. Contusions, of differing ages (hours to several days old), temporal poles, left inferolateral occipital lobe.
4. Gliding contusion, left inferior frontal gyrus.
5. Axonal injury:
a. Ischemic, corpus callosum, internal capsule, cerebellum, brain stem;
b. Traumatic, dorsal splenium (subacute), caudal brainstem (recent).
6. Optic nerve sheath and orbital soft tissue haemorrhage (left > right) of different ages.

7. Extensive retinal haemorrhage, left eye.
8. Multifocal spinal subdural haemorrhage, resolving, thoracolumbar and left posterior cervicothoracic region.
9. Spinal epidural haemorrhage, posterior thoracic and posterior lumbosacral.
10. Equivocal cerebral swelling (brain weight 698 g).
NO SKULL FRACTURE OR IMPACT INJURY ON THE HEAD.
INJURIES, TORSO:
HEALING RIB FRACTURES, LEFT, 5TH AND 6TH.
RECENT INTRAMUSCULAR HAEMORRHAGE, PSOAS MUSCLE, BILATERAL.
RECENT SUBCUTANEOUS HAEMORRHAGE, BUTTOCK, BILATERAL.
RECENT INTRAMUSCULAR HAEMORRHAGE, BUTTOCK, BILATERAL.
RECENT INTRAMUSCULAR HAEMORRHAGE, PARASPINAL MUSCLE, BILATERAL.
RECENT SUBCUTANEOUS HAEMORRHAGE, OVER COCCYGEAL VERTEBRA MIDLINE.
INJURIES, EXTREMITIES:
RECENT SUBCUTANEOUS HAEMORRHAGE, POSTERIOR ASPECT OF RIGHT LOWER LEG.
FRACTURE OF LEFT RADIUS (RECENT).
HEPATOMEGALY (334 gm) WITH MILD TO MODERATE MACROVESICULAR STEATOSIS ...”

28 In oral evidence, Dr Szentmariay expressed the view that the cause of death was "non-accidental injuries". That view was based upon "the overall pattern, the extent and location of those injuries". The differing ages of those injuries, the different locations on the child's body at which the injuries were found, the different types of causal mechanism needed to produce those different types of injury, and the amount of force needed to produce each of those different types of injury were also of significance to him in reaching that conclusion.

29 Of the specific injuries found upon autopsy, the recent traumatic axonal injury to the caudal brain stem was of particular importance to the evidence about the cause of death. Such an injury was described by Dr Rodriguez as follows:

“Q. Firstly what is an axon?
A. An axon is the nerve process, if you think about a nerve cell body, which is in the cortex, the grey matter, it has a long process. Impulses travel down that process and communicate with other nerves.
Q. And what sort of injury, you’ve described there were two, can you just explain to his Honour what you mean by the two different types of axonal injury that you saw?
A. Okay. Axons can be injured in a number of different ways. They can, for the impulses to be transported down the axons, the transmission of impulses is an energy requiring process. So if you starve the axon of energy at a particular point the transmission of impulses will stop. So functionally that nerve cell isn’t communicating with anything else. You can physically damage an axon either by shearing it, sort of cutting it or by damaging it so that it’s still in continuity but functionally it doesn’t continue to transmit impulses. One of the things that will decrease the energy level at a particular site is if that part of the brain doesn’t have enough oxygen or doesn’t have blood supply, so it doesn’t have oxygen. Now if a part of the brain has reduced blood supply that’s called ischemia, so one form of axonal injury can be due to ischemia. Another form of injury can be due to direct trauma to that axon at a particular point and the pattern of microscopic changes are slightly different in those two cases. In some cases you can’t tell what kind of injury or the mechanism by what that injury has occurred, but in other cases you can and I believe in this case I could distinguish the two in certain areas.
…
A. The caudal brain stem is the part of the brain that controls, if you like, the vegetative functions like breathing, heart rate and things like that, so injury in that region may result in cessation of respiration, apnoea.”

30 Dr Tait expressed the view that the child:

“… has been subjected to a number of incidences of physical violence. He has extensive bruising, ischaemic changes and traumatic lesions of the brain as well as retinal haemorrhages, injuries to the spinal cord and paravertebral muscles. These are all strong indicators that he has sustained significant inflicted injuries, likely on more than one occasion. Added to this he has rib fractures involving his 5th and 6th ribs on the left side anteriorly and a healing fracture of the distal third of his left radius which is approximately two weeks of age.”

31 He noted, in a report prepared on 26 October 2004, that the child had an unusually large amount of fat in the liver (macro vesicular steatosis), which might possibly have been a contributor to his death. At that time he was of the view that it was not possible to exclude completely an underlying inborn error of metabolism or metabolic abnormality that had contributed to his death. In particular, he was of the view that an underlying liver disease or metabolic disorder affecting the liver could result in an increased tendency to bleed after minor trauma or even spontaneously (a predisposition sometimes called a "bleeding diathesis"). That possibility was of some significance, as it might explain at least some of the numerous haemorrhages at different sites in the child's body. However even at the time of that report he was of the view that:

“Irrespective of this the injuries found indicate violent inflicted forces. Metabolic diseases do not cause skeletal fractures, cerebral contusions and ischaemic changes in the brain.”

32 By the time Dr Tait gave evidence at the trial he had read a report from a histologist, and been informed of the results for IH of the routine blood screening performed on newborns, and had come to the view that:

“… the combination of those things and the absence of any other organ damage involvement seems to rule out fairly confidently an underlying metabolic disease.”

That also, in his view, ruled out any real possibility of a bleeding diathesis.

33 Dr Tait also gave evidence:

“Q. In terms of the markers that were found post mortem, what do you say are the most important markers of the acute injury which caused [IH] to die?
A. Well, the freshness of the bleeding, the lack of significant brain swelling, no time for the brain to have swollen up or to have herniated through the .. (not transcribable) .. or through the frame and magnum. So in other words, the pressure hadn’t risen enough to cut off the blood supply to the brain or that sort of consequence. And just the extent of the intracerebral axonal injuries would be likely to have caused the brain to have stopped functioning very quickly, maybe to stop breathing.
Q. Are you able to comment on the cause or the likely cause of axonal injuries?
A. I think it’s – there has to be some sort of traumatic insult causing stretching and shearing of the axons. Axons are the brain cells so they are described more in the adult neurosurgical literature than infant literature, but they’re important in that they are documented in this case and it would sort of relate to some sort of shearing force that stretches and tears the brain cells.”

34 Dr Rodriguez gave evidence about the length of time prior to death at which the axonal damage in the brain stem had occurred:

“… the traumatic axonal injury in the lower part of the brain stem was more recent in that there was just staining of amyloid pre-cursor protein but no reactive changes, no macrophages or evidence of the body repairing. So that was, that would have taken at least two hours to occur. If it was less than two hours I wouldn’t have expected to see anything.”

35 However, it was not Dr Rodriguez’s view that the axonal injury was itself a cause of death. Rather, his view was that death resulted from a non-accidental injury damaging the lower part of the brain stem, and causing the child to stop breathing. Such an injury was consistent with other haemorrhages that were found, in particular the haemorrhages in the retina, the subarachnoid haemorrhages, and the subdural haemorrhage. The passage in which he expressed that evidence is as follows:

“CROWN PROSECUTOR: Q. Now in relation to all the injuries that you saw, what in your opinion was the cause of death?
A. The precise cause of death in this case is not morphologically apparent from the examination that I’ve made, however the changes that I’ve described are the changes that are documented in cases of non-accidental injury due to either shaking or shaking and impact, and I’m not aware of any other scenario which would give rise to this group of findings. Each individual lesion can be due to other causes and in and of itself is not specific for the mechanism of injury or the mechanism of death. However, put altogether the most likely, the most overwhelmingly likely explanation is non-accidental injury resulting in death--
Q. And what would the mechanism be, are you able to say? Based on the injuries that you saw?
HIS HONOUR: For the baby dying?
CROWN PROSECUTOR: Yes.
A. Again to some extent that’s hypothetical, and the most likely hypothesis or the one that has the most support is that injury results in damage to vital structures in the brain stem, the lower part of the brain stem, the medulla, such that the child stops breathing. And as a result of that the brain is starved of oxygen and the child dies as a result of that, of stopping breathing.
Q. How long after the injury to the brain stem would you expect there to be some apparent problem or difficulty with a child?
A. Well based on that hypothesis such that the injury to the axons in the medulla is mechanical due to traumatic injury rather than say ischaemic injury one would expect the child to be severely abnormal from the time of the injury.
Q. When you say abnormal, what do you mean by that. What would be able to be observed?
A. Well in this situation you would expect the child not to be breathing.
Q. Assuming that there is this damage to the brain stem that you’ve indicated how soon after that damage was occasioned would you expect the cessation of breathing?
A. One would expect it almost at the time of injury. The child would become floppy, with reduced muscle tone and not breathing.
HIS HONOUR: Would the injury to the brain stem result from the blockages that we’re talking about in the axon, in other words is there some sort of pathology that relates to the blockages in the axon causing an injury or blockage or substantial alteration to the brain stem itself, do you follow what I mean?
A. No, I don’t. Would I expect to find an abnormality in that situation?
Q. What you’ve said it, it’s probably just that I am applying layman’s logic to it, but you said that these injuries to the brain are caused - identifiable areas of injuries to axioms(as said)--
A. Axonals, yes.
Q. Axonals, sorry, and you can say that they were caused at least two hours before death, that’s on the one hand. On the other hand, you’ve said that an injury to the brain stem would, from what you said, almost cause instant death, say within a minute or two anyway, so wouldn’t lead to any identification of damage to axonals?
A. No, you wouldn’t expect to find axonal damage due to that application of force to the head, but you may or you would expect to find evidence of haemorrhage which occurs pretty much instantaneously, such as the haemorrhages in the retina, the subarachnoid haemorrhages, subdural haemorrhage.
Q. So did you find injury in the brain stem that could have led to this baby stopping breathing?
A. Well no, because the time that - because it’s likely the child stopped breathing far less than two hours after the application of force. I would not, unless--
Q. You couldn’t find such injury?
A. No, I didn’t find anything associated with that.
HIS HONOUR: So unless I’ve made that less clear than it is, Mr Crown.
CROWN PROSECUTOR: I understand what your Honour is saying.
Q. Just perhaps to summarise, you could have this axonal damage some hours before death?
A. Yes.
Q. Axonal damage over time could lead to an irregularity in the function of the brain stem, which could then lead to a cessation of breathing?
A. I think that’s probably a less likely explanation. If there was a period after the application of force and then the child died, it would be likely that you would expect to see other changes in the brain. In that situation you would expect to see massive swelling of the brain. Children that have sustained head injury and then have been kept alive for hours will show changes such as subarachnoid haemorrhage, subdural haemorrhage, but they will usually have massive brain swelling, and in that situation the massive brain swelling is the thing that ultimately results in death. If someone stops breathing or the blood supply to the brain is stopped for a period, the person will die before they don’t have any brain function. If they’re kept alive for a while the brain will swell and as a consequence of that the pressure in the - in the skull would increase and it will rise so that the pressure is above the blood pressure centre, blood gets into the brain. Now if the person dies before that chain of events has occurred, the brain won’t be swollen and will look pretty much morphologically normal. So someone who dies suddenly from say a heart attack, the brain will look normal. If they have a near miss heart attack and survive for a number of hours, then the brain will be swollen and show morphological abnormalities. Does that help you? Is that clear?
HIS HONOUR: Q. So it would seem that the axonal injury was itself a separate incident than that which caused the death?
A. Yes.
Q. The death was caused by some other application of force which injured the brain stem and led to the child stopping breathing?
A. That’s the most likely hypothesis.
Q. I thought that’s what you were saying, I just wanted to make sure that was clear?
A. Yes.”

That passage was set out in full by the trial judge, and accepted by him.

36 Dr Rodriguez has great expertise within his field. As well, the trial judge noted that there was support for the opinion of Dr Rodriguez in other evidence:

“First it should be acknowledged that Dr Rodriguez was expressing an opinion in his specific area of expertise. This was acknowledged by the other experts who deferred to his opinion as to the timing and mechanism of death. Secondly in the evidence of the ambulance officers they noted that the baby was warm to touch when first seen. Whilst this is perhaps not a matter that carries much weight it suggests that the baby had only recently stopped breathing but its significance may be enhanced by looking at other evidence. The third piece of evidence comes from the accused. He was the sole carer for this child at the time of death. When ambulance officers who were then attending to his dying son asked him for a short history as to what had happened he told them that he had fed the baby at 0600. That evidence suggests that the baby, even if not entirely well, was at least conscious, breathing and eating at that hour. That is only approximately two hours before the baby is found unconscious and unresponsive in cardiac arrest. That evidence strongly suggests that the event that led to that unconscious state occurred at some time after he was fed at 6am. That scenario fits entirely with the opinion of Dr Rodriguez. Given the circumstances then pertaining the obviously serious condition of the deceased when the ambulance officers were treating him I accept that it is extremely unlikely that the accused was either mistaken about the fact of feeding his son at 6am or that he made up that version to somehow mislead the ambulance officers. It was a version that the accused in effect repeated on at least two other occasions. Firstly when completing the SIDS form, to which I have early referred, and secondly in his record of interview with the police. I accept this evidence as being factually accurate and as the truth of what in fact occurred. The medical evidence could not confirm or deny that the baby had been fed at that time.”

37 I mention that, while the trial judge is correct in saying that the medical evidence could not confirm or deny that the baby had been fed at that time, Ms Jackson's daughter gave evidence of IH vomiting when she gave him mouth-to-mouth resuscitation. While that evidence does not enable the time at which he was fed to be established, it explains the comparative emptiness of the child’s stomach upon examination.

The Alternative Hypothesis Concerning Cause of Death

38 At the trial, counsel for the Applicant submitted that the evidence provided a basis for two alternative hypotheses about the cause of death. One was in accordance with the evidence of Dr Rodriguez. The second, based on some evidence from Dr Tait, involved there being an injury, followed by a biphasic sequence during which there is initial unconsciousness followed by a recovering to an extent, such that the baby is breathing for some time before a final decline. Dr Tait's evidence was that that period would be measured in hours not days. The trial judge summarised the argument based on that evidence as follows:

“… the accused submits that such a time frame leads to the inevitable possibility that the child could have been injured by someone other than the accused and he points to the child’s mother. The mother was in hospital under care for a mental condition at the time. It is submitted that she had a history of violence whilst suffering from that disease. The child visited the mother on the evening prior to its death. Whilst there is no obvious event recorded in the hospital notes with respect to this baby and the mother and the evidence of the relevant nurses suggests a lack of opportunity for such an event to occur the evidence could not be described as conclusive in that regard. It is submitted that she was not under supervision at all times during the visit of 14 October and that the event could have occurred very quickly on that evening. It is submitted that if that is a reasonable possibility it cannot be established beyond reasonable doubt that the accused was the one responsible for causing the final insult that led to the death of the child.”

39 While the child's mother gave evidence that she did not injure the child at any time, the trial judge was not prepared to regard her evidence as reliable. I see no error in his taking that view of her evidence – her evidence relates to a time when she was suffering from a severe psychiatric disturbance, and after which she continued for some weeks to suffer from a severe psychiatric disturbance, and in any event the trial judge had the advantage of seeing the witness.

40 The trial Judge did not accept the alternative hypothesis concerning the cause of death. His reasons were as follows:

“Despite that assessment there are, to my mind, a number of difficulties with this alternative argument made by the accused. Firstly it relies on what could only be at best described as a very unlikely turn of events at the hospital on 14 October. The evidence of the nurses, and I will not set it out in detail, was to the effect that at best there must have been a fleeting opportunity to commit the fatal insult. Even if that trauma could have been perpetrated on the baby within a matter of seconds it still required the mother to obtain the baby from the baby capsule in which it was then being carried and to perform some reasonably vigorous movement on that baby without that being seen by either the staff or probably by the accused himself.
The second matter however is more significant. The alternative scenario requires that the baby achieve a level of consciousness sufficient to be fed at 0600 hours. With respect to my mind the evidence of Dr Tait does not allow for that level of recovery. Dr Tait says of this alternative scenario, that the child
“would have been unconscious for a period of time - indeterminate in my mind but at least minutes - possibly recovering, breathing more vigorously, but not being completely normal but may for all intents and purposes look just asleep and breathing in a shallow manner and then a gradual deterioration over a period of hours. ” (emphasis added)

Trial transcript p 156.55 to 157.4.
There is no express acceptance of the possibility of a child feeding in that condition nor is it a likely scenario based on that evidence. Later when counsel returned to the topic Dr Tait gave further evidence to the effect that it would be extremely improbable that the child would have returned to normal during his possible return to consciousness. He bases that opinion on
“The extensive nature of the sort of injuries that are evident within the brain.”
Trial transcript p 158.27.
Assessment of those injuries is of course, as was conceded by Dr Tait, the precise area of expertise of Dr Rodriguez. No-one has questioned his expertise in this area and in my view his opinion must be preferred over that of Dr Tait. Further, it is important to remember that Dr Rodriguez did not only base his opinion on injuries that were evident in the brain but also the lack of expected indications such as brain swelling if the alternative scenario had been a likely one. In any case a proper understanding of Dr Tait’s evidence does not in my view support the alternative scenario if it is accepted that the child was fed at 6am.”

I see no error in that reasoning process.

41 As well, there were some additional matters, not explicitly relied upon by the trial judge, that to a small extent strengthen his conclusion. The evidence that Dr Tait gave about the time that could have passed between the injury and death was tentative in the extreme. In chief, he said:

“Q. When you say “several hours”, what do you mean, two or three hours?
A. It may be three or four hours, something like that. It’s hard – I mean, without being specific about the case, it’s a bit hard to sort of anticipate that. I’ve certainly seen a number of children where they haven’t died, but have presented to hospital after an injury sometime in the eight to 10 hours beforehand, where there’s been an insult and they’ve been then taken to hospital and noted to be unconscious and unresponsive and resuscitated. So there’s a period of, I suppose, probably eight to 10 hours, I guess. It’s a bit hard – I’m really just speculating now about that.”

In cross-examination, he was prepared to agree that the time might possibly be 12 hours:

“Q. Yes, in relation to the outside rational limit of the infliction of the fatal injury, or the fatal insult.
A. Well, I think if we stretch it out to 12 hours, then I would say that whilst I couldn’t exclude that on the basis that I have no theoretical or research ground to exclude that, I think then there would have to be some observation – from my recollection the baby was fed at about 6 o’clock in the morning. So that would – in the context of stretching the time, the severity and the nature of the child’s status at that point in time would have to be--
Q. I know I’m being a little theoretical, but just put that observation out of your mind, if you would, for the purposes of this argument. So I fully understand that you’ve read that observation, but just leaving that aside for the sake of this questioning, and fully accepting that you’re doing so, leaving those observations out, would you be prepared to extend it to 12 hours?
A. I guess I would have to because there have been other cases where I’ve been involved and where children have – again, what we don’t often know is the timing of what might have happened. But children presenting with some time at – being well at, say, 3 pm, and the next day at 10 am presenting very sick to emergency. But again in those cases, though, you’re essentially relying upon a history as to what happened. That’s the trouble with timing, it’s almost always reliant on what somebody else tells you, and they may not be telling you the truth, particularly in cases of this sort. So it’s at best a wobbly estimate. And I’m just speculating, so it’s very hard to be – to be, you know, to be sort of conclusive about that.”

42 Very great care would be needed before evidence of that degree of tentativeness, described by the witness himself, twice, as "speculating" could be accepted as founding a reasonable doubt. As well, the outermost extreme of the time range is needed, to get within the time that the family visit at the hospital was taking place on the evening of 14 October.

43 In the result, I see no error in the trial judge's findings concerning the medical evidence relating to the cause of death.

The 6:00 am Feed

44 The reader will have observed that a matter of some significance in the reasoning process of the trial judge was that the baby had been fed at 6:00 am on the morning he died. The evidentiary basis for concluding that the baby had been fed at that time was various statements that had been made by the Applicant himself. Strictly, the statements that the Applicant had made were all that he had fed the baby after 6:00 am, but in the context in which the trial judge referred to the child having been fed "at 6:00 am" that difference is not, to my mind, of any significance.

45 One such statement was made to the two ambulance officers and two paramedics, soon after the ambulance officers arrived at the Applicant's house on the morning of 15 October 2003. All four of those people gave evidence concerning the statement. One of the ambulance officers, Mr Lampropoulos, recorded in a contemporaneous note that was tendered "Father states last fed child soon after 0600 hrs this a.m." Another such statement appears in the first entry in the hospital notes of the Canterbury Hospital following the arrival of IH in the ambulance. Another such statement was made by the Applicant to police officers who were assisting him to complete a form called a SIDS form. Another such statement was made in the course of an electronically recorded interview with a member of the police force on 21 October 2003.

46 Counsel for the Applicant had objected, at the trial, to each of those statements (except, oddly, the entry in the hospital notes) being received in evidence. He submitted that they were admissions, and that they ought be excluded under section 90 Evidence Act 1995. Section 90 provides:

“In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”

47 The unfairness was alleged to arise from the distressing circumstances in which the Applicant was at the time he made the statements. At the time of the admissions made on 15 October, the Applicant’s wife was in a mental hospital, his son was gravely ill and an urgent history was being sought from him concerning his son. Under those circumstances, it was submitted, he would have felt morally obliged to answer the officers. As well, there was evidence from Ms Jackson that he appeared to be in shock at the time the ambulance officers arrived. There was also evidence that he was in a position close by to see the invasive procedures that were being performed on his son in an attempt to save his life. At the time of the admissions made in the electronic interview, his wife remained in the mental hospital, his son had actually died, and his daughter had been removed from him by DOCS the previous night.

48 The trial judge gave separate reasons for judgment for his decision to admit the statements to which the Applicant had objected.

49 Counsel for the Applicant made his objection on the basis that, if his application to exclude any of the statements was rejected, he would withdraw the objection to the balance of the statements. He took this course because he wished to demonstrate the consistency of the account that the Applicant gave. Because Counsel for the Applicant proceeded in this way, the trial Judge dealt first with the statement that had been made to the ambulance officers and paramedics.

50 The Dictionary to the Evidence Act 1995 provides:

“admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person’s interest in the outcome of the proceeding.”

All elements of this definition apply to the statements about IH having had a feed after 6:00 am. The trial judge correctly regarded section 90 as potentially applicable to those statements.

51 He recognised that the concept of unfairness "has been expressed in the widest possible form" in section 90: R v Swaffield (1998) 192 CLR 159 at 193, [67]. He recognised that the discretion under section 90 relates to whether allowing the admissions into evidence would result in an unfair trial, that the discretion is not confined to deciding whether the police unfairly treated the accused, and that elements of voluntariness, reliability, fairness to the accused and public policy considerations can enter into it: R v Sophear Em [2003] NSW CCA 374 at [104] ff; Swaffield at [69]-[70], 194-195; [74], 196. The trial judge saw no reason to doubt the reliability of the admissions, and held that there had been "no impropriety by police or otherwise in obtaining them". He acknowledged that the Applicant was under stress when he made the statement to the ambulance officers, but was not persuaded that such pressure led to unfairness to him in the admission of the statement. Further, he held that "There is nothing to suggest that the admission of that statement amounts to the admission of evidence at some unacceptable price: see Regina v Fernando [1999] NSWCCA 66".

52 Thus, his Honour allowed into evidence the statement that had been made to the ambulance officers. Because of the attitude that counsel for the Applicant took to the objection, the remainder of the admissions were allowed into evidence without further reasons being provided.

53 Before the enactment of the Evidence Act 1995, this Court (Carruthers, Allen and Badgery-Parker JJ) considered, in R v Edelsten (1990) 21 NSWLR 542, the role of the Court of Criminal Appeal in reviewing the exercise of the common law discretion to reject evidence on the ground of unfairness. Their Honours said, at 552, that there were:

"… two fundamental matters: first, that it was not sufficient for the appellant to persuade us that we would, if called upon to do so, have exercised the discretion differently. The appellant had to demonstrate error on the part of the trial judge, in that his Honour ignored relevant considerations, or relied upon irrelevant matter, or made an error of fact or of law; without identifying any precise error, he might have succeeded also by persuading us that on the facts which his Honour found or ought to have found, his discretion could not have been properly exercised except in favour of exclusion of the evidence.
Secondly, it was to be remembered that inasmuch as the exercise of a discretion to exclude evidence rested upon the existence of a particular state of fact, the onus lay on the accused person to establish that state of fact on a balance of probabilities. The discretion is a discretion to exclude otherwise admissible evidence, not (as indicated in the appellant's submission) a discretion to admit such evidence.”

54 Those principles apply equally to the role of the Court of Criminal Appeal in reviewing the exercise by a trial judge of the discretion that arises under section 90 Evidence Act 1995. Applying them, I see no error in his Honour's decision to allow the admissions into evidence.

The Evidence Relating to Inflicting Grievous Bodily Harm

55 The trial Judge found that the charge of inflicting grievous bodily harm was made out in relation to two particular types of injury found on post-mortem examination. One such type of injury was the fractures of the fifth and sixth ribs. The other type of injury was the child's broken radius.

The Rib Fractures

56 All the medical evidence said that these injuries were caused by non-accidental means.

57 The trial judge accepted evidence from Dr Szentmariay that the pattern of healing in the ribs was such that the injury could have occurred from, at the outside, 1.5 to four weeks prior to death. In so doing, he preferred evidence from Dr Szentmariay to evidence from Dr Wong, a radiologist, who expressed the view on the basis of x-rays that the rib injuries might be between two and four weeks old. It was open to the trial judge to prefer the evidence of Dr Szentmariay on this topic, as Dr Szentmariay based his view on having inspected both the bones themselves and x-rays, while Dr Wong's view was formed on the basis of x-rays alone, and in any event the larger range that Dr Szentmariay gave was more favourable to the Applicant than the slightly narrower range given by Dr Wong.

58 Dr Szentmariay was of the view that it was "very likely" that the rib injuries "were inflicted by blunt force injury which means that there was a force applied". Dr Wong gave evidence that in his view the likely causal mechanism for the rib fractures was "a squeezing force by adult hand". Both Dr Szentmariay and Dr Wong gave evidence that it was more difficult to break the ribs of a child than the ribs of an adult, because the ribs of a child were more flexible than those of an adult. Dr Wong's evidence was that "a substantial force" would be needed to break the ribs.

59 The only people who were realistic candidates for having inflicted the injuries to the ribs were the Applicant and FAA. Given the time when those injuries were inflicted, the only visits at which FAA had any opportunity to be in physical contact with the child were those that fell within the range 17 September to 4 October inclusive. Within that range, the only visits occurred on 21 and 28 September.

60 On the basis of evidence about what transpired on those occasions, the trial judge rejected as a reasonable possibility that the baby was injured by having his ribs broken on either of those occasions.

61 I mention that his Honour expressed that conclusion by rejecting the possibility that the baby was injured by having it ribs broken "on either 17 or 28 September", but it is apparent from the reasoning preceding that remark that his Honour was clearly focused on the visits that occurred on 21 and 28 September, and that his mention of 17 September is just a slip of the tongue. I mention also that it seems that his Honour was of the view that it was the Applicant who brought the child to visit on 21 September. That view is incorrect, as it was Mr and Mrs RA who brought the children on that day. However, when the critical question concerns whether FAA had any opportunity on 21 September to inflict the injuries to the child’s ribs, that error is not one that affects in any way the reliability of his conclusion.

62 I see no error in his Honour's conclusion that MIH had been shown, beyond reasonable doubt, to have inflicted the rib injuries.

The Broken Radius

63 According to Dr Szentmariay, the break in the radius was between three and five days old. That view was based on a histological examination of the bone. Dr Wong was of the view that the break was between two and four weeks old, but his view was based upon examination of x-rays. Dr Wong accepted that histology would be a more accurate means of dating such injuries. The trial judge, correctly in my view, preferred the evidence of Dr Szentmariay on that topic.

64 If Dr Szentmariay’s view concerning the timing of the break in the radius was accepted, the only time at which it could have occurred, if FAA was responsible for it, was on the visit on 11 October. In light of the evidence concerning what transpired during the visit on 11 October, his Honour rejected the hypothesis that FAA had caused the broken radius on that day as being so unlikely as not to be a reasonable possibility.

65 Even if Dr Wong’s view had been accepted, that would have put the break as occurring between 17 September and 1 October. The only visits that occurred during that period were on 21 September and 28 September. The same matters that make it not a reasonable possibility that the rib injuries were inflicted on either of those visits also make it not a reasonable possibility that the break in the radius occurred on either of those visits.

66 I see no error in his Honour's conclusion that MIH has been shown, beyond reasonable doubt, to have caused the break in the radius.

Orders

67 The issues involved in determining this application are of sufficient complexity to warrant the grant of leave to appeal. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

68 HIDDEN J: I agree with Campbell JA.

69 SMART AJ: I agree with Campbell JA.

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