R v Amato (No 3)
[2021] ACTSC 242
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Amato (No 3) |
Citation: | [2021] ACTSC 242 |
Hearing Date: | 15, 17, 20, 21, 22 September 2021 |
DecisionDate: | 24 September 2021 |
Before: | Elkaim J |
Decision: | The accused is found Not Guilty of both counts in the indictment dated 3 May 2021 |
Catchwords: | CRIMINAL LAW – TRIAL BY JUDGE ALONE – Manslaughter – Grievous Bodily Harm – causation – whether deceased pushed by accused |
Legislation Cited: | Crimes Act 1900 (ACT) ss 15, 25 Supreme Court Act 1933 (ACT) s 68B |
Cases Cited: | Edwards v The Queen (1993) 178 CLR 193 Reynolds v The Queen [2015] NSWCCA 29 |
Parties: | The Queen ( Crown) Mario Amato ( Accused) |
Representation: | Counsel R Christensen ( Crown) J White SC ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused) | |
File Number: | SCC 219 of 2020 |
ELKAIM J:
On 16 April 2021 the accused filed an election for trial by judge alone, in accordance with s 68B of the Supreme Court Act 1933 (ACT).
At the commencement of the trial, the accused was arraigned on an indictment dated 3 May 2021. It contains two counts. The accused pleaded not guilty to both counts. They are:
(a)Count 1: Committing manslaughter contrary to s 15 of the Crimes Act 1900 (ACT).
(b)Count 2: Causing grievous bodily harm contrary to s 25 of the Crimes Act 1900 (ACT). (The Crown did not rely on any statutory alternative).
Before looking at the evidence, it is necessary to state some of the fundamental legal principles that are to be applied before arriving at a verdict. These are essentially standard directions.
The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. He is referred to as an accused because the indictment is essentially no more than a formal allegation against him.
Suspicion and probability must play no part in my decision-making. As long as I find there is a reasonable doubt, the accused must be found not guilty.
The facts that I find must be based on the evidence, that is the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.
In relation to accepting the evidence of witnesses, I am not obliged to accept the whole of the evidence of any one witness. I may accept part and reject part of the same witness’s evidence. The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness’s evidence. I may accept the remainder of that evidence if I think it is worthy of acceptance.
The prosecution does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.
The elements of the charges faced by the accused are as follows:
Manslaughter
1. The accused did an act;
2. The accused intended to do the act (i.e consciously and voluntarily did the act);
3. The act of the accused caused the death of the deceased;
4. The act of the accused was unlawful;
5. The act of the accused was dangerous (the circumstances are such that a reasonable person in the accused’s position would have realised that he or she was exposing another or others to an appreciable risk of serious injury).
Causing grievous bodily harm
1. The accused engaged in an act or omission;
2. The act or omission was unlawful or negligent;
3. The act or omission caused grievous bodily harm to another person.
In respect of the manslaughter charge the first and third elements were the focus of the defence. The Crown case is that the first element was completed by the accused pushing Ms Sheila Marie Capper. Ms Capper died on 4 December 2018. I will refer to her as “the deceased”. The third element, said the Crown, rested not upon the immediate consequence of the push, but rather on the complications that arose from the treatment of a fractured hip that had been suffered by the deceased when she fell after being pushed.
The precise actions of the accused are matters of fact to be decided by my assessment of the evidence. Causation however is a question which I think requires some elucidation at this point.
Although there is a recent High Court case concerning causation for manslaughter (Swan v The Queen [2020] HCA 11) it is generally accepted that the principles were established by the High Court in Royall v The Queen (1991) 172 CLR 378. I think the following excerpts from Reynolds v The Queen [2015] NSWCCA 29 sum up the appropriate test:
41.The proper test for causation in a case such as the present was whether the accused’s conduct was a ‘substantial or significant cause of death.’ Different formulations of this test were stated by their Honours in Royall v The Queen (1991) 172 CLR 378 (‘Royall’) and Osland v The Queen (1998) 197 CLR 316. Subsequently there has been some debate in the case law as to whether the terms “significant” and “substantial” are interchangeable.
42.In R v Andrew this Court, having referred to Royall,notedat [58] that “There would be no material difference in the way a jury would understand the words ‘substantial’ and ‘significant’ in this context” and then proceeded to adopt the “substantial or significant cause” formulation stated by Deane and Dawson JJ at 411 in that case. In R v Moffatt at [69] Wood CJ at CL made the following observations in relation to a trial judge’s summing up:
“69. On that issue of causation his Honour then correctly directed himself by reference to the fact that in Royall (1990) 172 CLR 378; 54 A Crim R 53, each of Mason CJ, Deane and Dawson JJ, and Gaudron and Toohey JJ, in their separate judgments, cited with approval:
“…the comments of Burt CJ in Campbell [1981] WAR 286’ (1981) 2 A Crim R 157, where the following was said (at 290; 161):
‘(It is) enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.’”
70. The formulation of the test to be applied was not stated by their Honours in identical terms. Brennan J said that the accused’s act or omission “must contribute significantly to the death of the victim” (at 398; [66]). Deane and Dawson JJ said that it would be sufficient if the accused’s conduct “is a substantial or significant cause of death” (at 411, [77]). The “causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused” (at 412; [78]). Toohey and Gaudron JJ said the jury will inevitably concentrate its attention upon “whether the act of the accused substantially contributed to the death” (at 423; [86]). McHugh J said that the wrongful act must be “An operating cause and a substantial cause” (at 444; [109]).
71. What is clear is that the act of the appellant must have more than a coincidental or insignificant effect – rather it must provide a substantial contribution towards the death of the accused: see also Smith [1959] 2 WB 35; (1959) 42 Cr App R 121; Evans and Gardiner (No 2) [1976] VR 523; Bingapore (1975) 11 SASR 469 at 480; Hallett (1969) SASR 141; and Osland (1998) 159 ALR 170 at 174. Although there has been some debate as to whether the expression “significant” is interchangeable for “substantial” in this context (see S J Odgers and S M H Yeo, “Semantics and the Threshold Test for Imputable Causation” (2000) 24 Crim LJ 73) I am content to accept for the present purpose the latter.’
43.Finally, it is noted that the term ‘substantial’ in the context of causation has been said to be “a convenient word to use to indicate to the jury that it must be something more than de minimis”: Royall at 442 per McHugh J referring to Reg v Hennigan [1971] 3 All ER 133 at 135.
Another useful summary of the principles is to be found in R v Wright; R v Lowe [2009] NSWDC 251. Murrell DCJ (as her Honour then was) said this:
10.As causation is an element of the offence, it is essentially a question of fact for the jury. It is to be determined by applying common sense to the facts as the jury finds the facts to be, appreciating the criminal context in which the inquiry occurs: Campbell v The Queen [1981] WAR 286 at 290, Royall v The Queen (1990) 172 CLR 378 per Mason CJ at 387, Deane and Dawson JJ at 413.
11.An act "causes" a death if it is a substantial or significant cause of the death: Royall per Deane and Dawson JJ at 411, Toohey and Gaudron JJ at 423. It need not be the sole, direct or immediate cause of the death: Royall per Brennan J. at 398. The causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused: Royall per Deane and Dawson JJ at 412. Causation cannot be separated from questions of moral culpability: Royall per McHugh J at 450. In Arulthilakan v R [2003] HCA 74 Kirby J stated that the inquiry into causation addresses whether the prosecution has established a link that is "sufficiently cogent to justify attributing causal responsibility, ie legal responsibility, to (the accused) " at [58].
12.It is often said that, when directing a jury on causation, reference to the reasonable foreseeability of death or grievous bodily harm is likely to be confusing and should, if possible, be avoided: Royall per Mason CJ at 390, Deane and Dawson JJ at 412, McAuliffe v R [1995] HCA 621 at [23].
The Crown case
The Crown case, as put in the opening address, was, in summary, as follows:
The alleged victim of the offence, the deceased, died on 4 December 2018.
The deceased was 89 years of age when she passed away. She was a resident at the Southern Cross Care Residential Aged Care Facility in the suburb of Campbell in the ACT. I will refer to this facility as “SCC”. The deceased had a number of medical conditions including dementia, glaucoma, leukaemia and a renal impairment.
The accused was also a resident at SCC. He had a medical history which required him to have assistance with the administration of insulin.
On 13 November 2018 the accused and the deceased wished to enter the laundry room at SCC. They both ultimately went into the room but then:
Seconds later, Ms Capper falls from the laundry doorway and onto the floor in the hallway outside the laundry room and it is alleged that she fell in this manner as a result of the accused having pushed her. (Crown opening, T3.13)
I was told that the fall was captured on CCTV and I was shown the footage. It became Exhibit A. There was no CCTV capturing what occurred in the laundry room.
The deceased fractured her right hip in the fall together with some minor injuries to her elbow and head.
The Crown said that the evidence establishing the cause of the deceased’s fall was circumstantial and came from four sources. These were:
(i)The deceased’s words shortly after the fall.
(ii)Various accounts given by the accused over time.
(iii)The CCTV footage.
(iv)The opinion of a biomechanical expert, Dr Thomas Gibson.
The deceased died on 4 December 2018. The Crown said that expert evidence would establish that “it is unlikely Ms Capper would have died when she did without the fracture to her hip”. This evidence would come from Prof Duflou. Another medical expert, Dr Van Diemen would say that:
Ms Capper’s treatment was such that she was expected to survive the fracture to the hip, that her underlying conditions were not of such significance that death was expected but that ultimately Ms Capper would not have died when she did without her hip having been fractured”. (Crown opening, T8.16)
The Crown then summarised the causation issue:
This causation issue is one that will require your Honour’s consideration and I expect will ultimately involve a conclusion by your Honour that the injury caused to Ms Capper’s hip was the substantial or the significant or the substantial and operating cause of death…” (Crown opening, T8.20)
A little later the Crown said this:
It is sufficient, in the Crown’s submission, that the injury caused is one of the contributors to the death, that it be a significant or substantial cause and I expect that the evidence that Ms Capper would not have died when she did if she had not fractured her hip on 13 November 2018 will result in your honour concluding that the fracture to the hip was, in legal terms, the cause of Ms Capper’s death. (Crown opening, T8.29)
The Crown acknowledged that the accused had significant cognitive deficits.
Senior Counsel for the accused provided written submissions as a brief opening statement. He added that the issues included doubt as to what had actually occurred in the laundry room and causation as between the deceased’s fall and her death. There was no suggestion the accused’s mental condition might lead, if the case was otherwise proved, to a finding of not guilty by reason of mental impairment.
Pre-trial applications
The first day of the hearing was taken up with legal argument concerning the admissibility of expert opinion relied upon by the Crown. This was the report of Dr Gibson, a biomechanical engineer. The import of his report was that the deceased had not slipped or tripped, rather it was highly likely that she had been pushed.
For reasons given separately (R v Amato (No 2) [2021] ACTSC 234), I ordered that the Crown was not permitted to rely upon the evidence of Dr Gibson, including his report, in the trial of the accused.
Lay and police evidence
The following is my summary of the evidence. It is not intended to be precise, but to convey what I considered to be the important parts of the evidence. Obviously detail can be found in the transcript. I also note that a number of witnesses gave evidence remotely and one witness had a support person with her. I draw no inference against the accused, nor give the evidence any greater or lesser weight, because the evidence was given in this manner.
The first witness was Ms Anjana Tandukar. She was a carer at SCC in November 2018. She was walking along the corridor and saw the accused and the deceased in front of the laundry door. They were discussing codes to open the door. She was on her way to attend to a buzzer call. She said she would obtain the code after her immediate task. At that time the laundry door was closed.
Ms Tandukar returned a little later to find the deceased on the floor. Another carer, Ms Melissa O’Dowd was assisting her. She asked Ms O’Dowd about a registered nurse. A nurse soon came along. Ms Tandukar obtained a pillow at the request of the nurse.
When Ms Tandukar returned the accused was no longer present. She was not sure if the laundry door was open or closed. She did not remember any obstructions being present outside the door.
Under cross-examination, Ms Tandukar agreed that after the incident she had entered the laundry room to obtain a trolley. She referred to it as a skip for the collection of rubbish and linen. It was normally kept in the laundry room.
The next witness was Ms Melissa O’Dowd, who I have referred to above. Ms O’Dowd was working on the afternoon shift. She too was answering buzzer calls from residents. Ms O’Dowd came across the deceased, alone, near the laundry. She was agitated because she apparently could not enter the laundry. Ms O’Dowd thought the laundry door could be opened by a key but she found that a coded lock had been installed. She said that she would obtain the number. There was no one else present at that time.
Ms O’Dowd left for the office in order to obtain the code. She returned in less than 10 minutes to find the deceased on the floor with a significant skin tear on her right arm and also a wound to her head. The deceased was on her back, trying to get up. She told her not to make any attempt. She said:
Yes, she was lying on her back, attempting to get up, which then I stopped her from getting up because with all falls with the elderly you've got to make sure there's no hip fractures so you don't let them move. (T71.23)
Ms O’Dowd did her best to minister to the deceased’s needs but realised that a registered nurse should be called as soon as possible. She asked a cleaner, Patricia, who was nearby, to stay with the deceased while she went to call a nurse.
When she returned she tried to keep the deceased still until a nurse arrived. She significantly observed:
And when the RNs arrived, that's the nursing staff, and did they then assist Marie? Is that right?---They did, yes, because we can't have too many people hovering over, you know, people with dementia because it - it freaks them out a bit too much. So once I made sure that the RNs had it in - everything in hand, I left to do - to care for the other residents. (T72.19)
As will be seen below, expert medical evidence was given to the effect that persons with cognitive deficits (such as the vascular dementia suffered by the deceased) will be cognitively affected by circumstances such as a fall.
Ms O’Dowd said that the deceased said to her “He pushed me”. She repeated the statement. Ms O’Dowd was not sure if any other person was present at the time. There were no males present. She did not notice any obstruction in the area of the laundry door.
About five minutes after saying “He pushed me”, the deceased repeated the statement. Again there were no males present at that time.
At one stage Ms O’Dowd saw the accused standing nearby. He said something like: “I hope she is okay”. Ms O’Dowd had not seen where the accused had come from before making this statement.
Ms O’Dowd described the deceased’s demeanour as frightened and agitated. She was in pain.
Under cross-examination Ms O’Dowd was taken back to a statement she made to the police on 23 November 2018. It was put to her that she had told the police that the accused had asked if he could help to lift the deceased onto the ambulance trolley. She told him that that was not permitted. She agreed that the timing of the statement may have been incorrect.
Speaking generally, Ms O’Dowd said that the deceased had been “quite well”. She was suffering from dementia but not to an extent that she needed to be in a dementia ward. She would follow directions and was usually happy. However she became flustered when she could not properly express her thoughts.
Ms O’Dowd said that when she initially saw the deceased outside the laundry door she did not say why she wished to go into the laundry. She did sometimes do ironing in the laundry but she did not have any clothing with her on this occasion.
Patricia, the cleaner, referred to by Ms O’Dowd, was Ms Patricia Jordan. She gave evidence through a Spanish interpreter. She said she was working on the day. She was called to stay with the deceased who was lying on the floor. This was outside the laundry. When she arrived only Ms O’Dowd and the deceased were present. The laundry door was closed.
The deceased did not say much but she did moan a lot in pain. Ms Jordan said the accused came out of the laundry room. The deceased said “That man, he did it, he did it”.
Ms Jordan asked the accused if he had seen what had happened. He replied “She fell”. He then went to his room. She did not think anyone else was present at the time. Ms O’Dowd soon arrived with a nurse.
I then began to listen to some telephone conversations between the accused and various persons, being Exhibits E and F in the trial. Some of the calls which had been intercepted were very clear. However the calls that had been picked up by surveillance equipment were often difficult to hear and decipher. I suggested to the parties that I listen to the calls through earphones in chambers. They agreed. It is important that I note that the evidence was in the recordings. The transcripts were no more than aides memoire.
I note that the persons referred to in the calls in Exhibit E are:
(i)Wendy, an NDIS caseworker.
(ii)Helen Hacker and Roger Hacker, friends of the accused. Mr Hacker had been the accused’s guardian.
(iii)Jane Bird, the accused’s partner.
In Exhibit F the calls were between the accused and Ms Bird. In two calls Mr Hacker takes part and in one call Mr Gino Amato is a participant.
Although the calls were predicted to play a part in the Crown case at its opening, they assumed no importance by final addresses when the Crown said the accused’s comments should be “put to one side” because they were unreliable.
Ms Urmila Sitoula is a registered nurse. She had just begun her shift and was taking a handover from Ms Tulasi Sapkota, also a registered nurse. Ms Sitoula received a call about the deceased’s fall and went to the scene. She found the deceased on the floor being helped by Ms O’Dowd and Ms Tandukar. She checked the deceased and asked the other nurse to call an ambulance. The deceased was in a lot of pain.
Ms Sitoula said the laundry door may have been half open and she did not see any obstructions on the floor. She later saw the accused coming out of his room and going into the laundry. It was possible he had gone to the laundry before the ambulance arrived. He did not talk to her but he seemed very calm.
The next witness was Ms Barbara Faye Saunders. She is a nurse by training and was the facility manager of SCC in November 2018. She left in December of that year. She said that following complaints by the accused, an audit had recommended that the laundry door be locked. Initially it was a key operated lock, but after further complaints from the accused, a keypad was installed. He was the only resident given the code. Any other resident needed to be supervised to enter the laundry.
The laundry door was on hinges and it was not self-closing. It was a “normal door”.
On 13 November 2018 Ms Saunders was told of the deceased’s fall so she went to the scene. A registered nurse was already there. She did not notice any obstacles in the area. She opened the laundry door and saw the accused sitting on a chair with his legs crossed. He was bobbing up and down. The chair was by the window. She asked him if he knew anything about the deceased. He said he did not. Ms Saunders closed the door and went downstairs to ring the deceased’s family. She described the floor of the laundry as being “nonslip” and there was a commercial carpet in the corridor.
Ms Saunders said that measures were in place to minimise falls, such as physiotherapy assessments of the residents and the presence of handrails and wide corridors. The corridors were well lit.
Under cross-examination Ms Saunders accepted that there were no handrails in the laundry. She agreed that she had asked the deceased what had happened and the deceased had replied “I don’t know, I don’t know”. She also often repeated “Don’t ask me anything”.
Ms Saunders said that the accused, other than staff, was the only person who had the code. I noted from the CCTV footage that the accused made a number of attempts to enter a code before being successful.
Ms Saunders said that she “kept a tight ship”. She was very concerned to emphasise that under her management, the facility was ‘spick and span’. She would not agree that the scene depicted in, for example photographs 5 and 8 of Exhibit C, existed in November 2018. She said the appearance depicted in photograph 8 was cluttered. There would normally have only been one chair in the room with no ‘walker’ and one bin.
I had a very distinct impression that Ms Saunders was concerned to defend her management and to avoid any suggestion that a scene such as that shown in photograph 8 might have existed under her tutelage. Other than Ms Saunders, the Crown did not ask any other witness whether this photograph depicted a usual state of the laundry room as at November 2018. Without making any finding as to the competence of Ms Saunders, I do not accept the laundry room could not have been in a similar condition in November 2018.
The next witness was Ms Sapkota, the other registered nurse working at SCC. She was at the end of her shift on 13 November 2018 when the carer called to tell her about the deceased’s fall. She went to the corridor with Ms Sitoula to find the deceased lying on the floor. She was bleeding from the head. Ms Sitoula applied compression. A physical examination was carried out and the ambulance was called.
Ms Sapkota saw the accused in the corridor but she was not sure precisely when. He was in and out of the laundry room. A little later she asked him if he had seen what had happened and he replied “No”. He also spoke to the deceased and said to her “it’s okay” and she replied “I know”.
The following day the accused came to the nurses’ office. Ms Saunders was there. The accused said that “everyone was worried about Marie. I’m sorry I didn’t call you earlier”. He appeared “sad and in a low mood”.
Ms Sapkota said that she had asked the deceased what had happened. She had replied that she could not remember. It was usual for her to say “I don’t remember”.
The evidence about her question to the deceased and the answer was the subject of objection from the Crown because this, and also the evidence given by Ms Saunders, concerning the deceased saying “I don’t know, I don’t know” had been excluded in a decision of her Honour Murrell CJ (R v Amato [2021] ACTSC 155).
The Crown said the conversations had been excluded because Murrell CJ, having heard medical evidence, was of the view that by the time the conversations occurred, considering the pain that the deceased was in, and her dementia condition, the answers would have become unreliable. I said that I certainly understood this reasoning in respect of the conversation with Ms Saunders, which occurred about 25 minutes after the fall, but not necessarily in respect of the conversations with Ms Sapkota which had occurred at three and eight minutes after the fall. I suggested that the latter should be admitted but not the conversation with Ms Saunders.
The accused was happy with this compromise but the Crown requested that I delay my decision until the evidence of Dr Van Diemen. I agreed to do so.
Further submissions were made in final addresses. By this time I had heard the accused’s submissions to the effect that nothing said by the deceased could be regarded as reliable. For reasons that will appear below I think that is correct. This means the subject of the objection should also be classified as unreliable and of little weight. Accordingly I uphold the Crown’s objection.
The final lay witness was Mr Roger Hacker. He and his wife, Mrs Helen Hacker, are good friends of the accused. Mr Hacker initially met the accused in July 2015 when, as part of a church group, he visited the Calvary Hospital. At that time, pursuant to ACAT orders, the accused’s brother, Joe Amato, was the accused’s guardian. The guardianship extended to both health and financial affairs.
Due to various difficulties, but mostly because Mr Joe Amato lived in New South Wales, Mr Hacker became the accused’s guardian. This guardianship lasted until the accused left SCC. From that time the accused’s partner, Ms Jane Bird, essentially for practical reasons, took over the guardianship of the accused.
Mr Hacker became aware of the incident with the deceased on the day it occurred. He was informed by Ms Saunders. The following day he attended a meeting with the police. Ms Saunders and Dr Tate were also present. Dr Tate is the accused’s general practitioner.
Mr Hacker could not remember anything specifically said by the accused at the meeting. He did say that since the meeting he had had several conversations with the accused about what had occurred. He could not recall each conversation in detail but they followed the same theme. The accused said that the lady had followed him into the laundry. He knew she was not allowed to be there. He had ushered her out and then closed the door using his foot. The ushering consisted of taking her arm and guiding her to the door.
Part of the explanation given by the accused to Mr Hacker was that he was worried about getting into trouble with Ms Saunders. There were ongoing restrictions on his movement and he felt he would be in trouble if he let a person into the laundry who was not allowed to be there. Mr Hacker said that the accused had an “awkward” relationship with Ms Saunders. The accused understood that the residents were not allowed into the laundry because they might encounter some danger such as drinking poisonous fluid.
Mr Hacker said it was possible that the accused had said he was frustrated. He was certainly concerned about his relationship with Ms Saunders. He might also have used the words “push her” as seen in the intercepted phone calls. This reference, on page 36 of Exhibit F, must be treated with caution because of the contents of the next answer:
I didn’t push her anyway, you know what I’m saying. I didn’t do it, you know. I just shut the door on her and she fell over.
Under cross-examination Mr Hacker agreed that the accused often gesticulated when he spoke and that he did so as part of an “Italiano persona”. He was very proud of his Italian heritage. This evidence was in contrast to that of Ms Saunders. I have already expressed some reservations about her evidence. It was suggested in argument that Mr Hacker might have been tailoring his answers to protect the accused, his good friend. To the contrary, I was very impressed with Mr Hacker. I have no doubts of his credibility. If anything I think it was Ms Saunders who may have been concerned to not allow any of her answers to be for the benefit of the accused.
In regard to the conflict about the accused’s mannerisms, I prefer the evidence of Mr Hacker.
Mr Hacker also said that the accused had entered SCC partly in order for there to be control of his medications.
Senior Constable Comer, from the City Police Station, said that he inspected the laundry room door on 14 November 2018. He found it to be a lightweight standard internal door, probably hollow. It required only a slight pressure to close the door, but a lot of force to slam it.
It was agreed between the parties that the door lock seen in the photographs taken in February 2019 (Exhibit C) was the same as that in place in November 2018. It had a dual opening mechanism. It could be opened by the insertion of a code or by the use of a card reader.
Exhibit D is a statement from Ms Joy Barnard, the deceased’s daughter. It was taken by the police on 18 November 2018. It also attaches a record of conversation made with Ms Barnard on 4 December 2018. Mr Philip Capper, the deceased’s son, also takes part in this conversation.
In her statement Ms Barnard says that she received a message from her brother, Philip, that her mother had fallen at the nursing home and was being taken to hospital. She says that she was “shocked to hear that this had happened as I know my mother to be very mobile and steady on her feet and for her age is very active and tends to all her own day-to-day needs without assistance”. Ms Barnard said her mother had been diagnosed with vascular dementia. She had short term memory issues and difficulty “expressing herself verbally although she is fully aware of her surroundings and events that occur in general”.
In the recorded conversation Ms Barnard says that her mother had lived at SCC for over 20 years. There had been concerns about her capacity to maintain her independence. This time was spent in an independent villa. However about three years earlier the deceased had been moved into a higher care facility at SCC.
Ms Barnard said that notwithstanding her residence in the higher care facility “she didn’t need assistance with showering, eating, nothing, dressing… she was still ironing her blouse or a blouse every day… in the resident’s laundry”.
Expert evidence
Two medical experts gave evidence. Prof Duflou, a pathologist, and Dr Van Diemen, a forensic medicine practitioner.
In considering the evidence of the experts I give myself the following directions (generally quoting from the NSW Criminal Bench Book);
(a) An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.
(b) The value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge.
(c) Expert evidence is admitted to provide me with, in this case, information and opinions on medical topics which are within the witness’ expertise, but which are likely to be outside the experience and knowledge of the average lay person.
(d) The expert evidence is before me as part of all the evidence to assist me in determining the medical aspects of causation and the health conditions of the deceased and the accused.
(e) I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.
Prof Duflou carried out an autopsy of the deceased on 7 December 2018. He prepared a report for the Coroner which is dated 8 September 2019.
In the report Prof Duflou lists the “Direct Cause” of death as follows:
Complications of fractured neck of femur (surgically treated) in an elderly patient with congestive cardiac failure, generalised atherosclerosis, dementia, cerebrovascular disease and carcinoma of pancreas with sepsis.
The report does not list any antecedent causes, nor does it state any “other significant conditions contributing to the death but not relating to the disease or condition causing it”.
In the summary Prof Duflou says:
Overall, the deceased has died of multiple organ failure, which is believed to have stemmed from the injuries sustained (and specifically the fractured femur) and its subsequent consequences and treatment in a person of advanced age with multiple pre-existing co—morbidities. These pre-existing disease processes included the patient’s valvular and coronary heart disease, generalised cardiovascular disease, ageing related lung disease, and longstanding kidney damage. The relevance of the pancreatic cancer in contributing to death is more difficult to determine although the presence of inflammation in the pancreas in the region of the cancer could entirely reasonably be the cause of for the patient’s persistent favour and was likely the source of infection diagnosed clinically.
In relation to the deceased’s dementia Prof Duflou said:
Detailed neuropathological examination of the brain revealed the presence of multiple disease processes, including the presence of frontotemporal lobar degeneration, and evidence of cerebrovascular disease with a prior stroke, but no evidence of traumatic brain damage. The identified pathological process could reasonably be expected to be a cause for the patient’s clinically diagnosed dementia, and would also be expected to be a contributor to postural instability of the patient and therefore a propensity to falling.
Prof Duflou’s observations of a “propensity to falling” are consistent with the deceased having been noted to be a “falls risk”, but are to some degree inconsistent with Ms Barnard’s description of her mother’s capacity to mobilise independently.
The report attaches “Autopsy Findings”. These findings do not identify a cause of death. The findings identify the recent hip surgery and also the laceration to the deceased’s right elbow. There is no mention of the head wound notwithstanding the evidence of Ms Sitoula that she had applied compression to stop bleeding from the head.
In relation to the pancreas, the microscopic examination of tissues revealed the following:
The pancreas has been extensively sampled. All sections show advanced autolysis, making assessment of pathology difficult. Both the head and tail of the pancreas show areas of fibrosis, and there is a large area of inflammation and necrosis within the head of the pancreas. Surrounding tissue is largely necrotic as well, but some areas show variable morphology of exocrine cells as well as disordered architecture, suggesting the presence of pancreatic adenocarcinoma. The overlying duodenum is largely within normal limits. Adjoining retroperitoneal nodes not obviously pathological.
Prof Duflou requested a neuropathology report of the deceased’s brain. The report was prepared by Associate Prof Buckland on 29 August 2019 (Exhibit I). His summary is as follows:
Brain:
- frontotemporal lobar degeneration…
- severe small vessel vascular disease, subcortical white matter and deep grey structures
- small (~4mm), old lacunar infarct, putamen
- no evidence of trauma
In his oral evidence Prof Duflou was taken to various parts of his report. In particular he explained a number of the medical conditions that he refers to in the report. He said that the deceased’s heart had been the subject of significant surgical intervention in the past. She had had bypass surgery and a mitral valve replacement in 2006.
Although the new mitral valve had a lifespan in the order of 10 years he did not find any evidence that it was not operating competently at the time of death. He did however observe that the deceased’s heart was not functioning effectively to the extent that it was not adequately pushing fluid through the body.
Prof Duflou spoke about the kidney damage that was evident and also the existence of pancreatic cancer. Although he was not able to evaluate the severity of the cancer he was able to say, as is evident in his report, that it could have been the source of infection in the deceased’s body, and in turn the cause of the sepsis from which she suffered. A sepsis is an extreme reaction by the body to an infection.
In relation to the part played by the surgery Prof Duflou explained that there was a large prevalence of death in elderly patients following hip surgery although sometimes the period between surgery and death could be fairly long, for example about a year.
Prof Duflou explained the process from hip surgery to death in this way:
A fracture of the hip is never a trivial injury and especially in elderly people, there is a very strong association between a fracture of the hip and dying in the subsequent months to even a year or two later. There is a much higher mortality rate in any person who has had a fracture of the hip than one who has not and the reason for this is that if you fracture your hip, you have internal bleeding. You have release of inflammatory substances as absolutely normal and more or less with a hip fracture and then added to that, you have the period of immobility in an elderly person. You have the issue of surgery and anaesthesia, again, if you like, to use the term 'knocking about' the person and then you can have very specific complications of hip fractures like ...(inaudible)... weren't present in this case but you can have a number of complications including importantly fat embolism and all of those when taken together and individually can significantly affect the long-term well survival of a person. (T150.47-151.13)
Having regard to the extent of the deceased’s pre-existing conditions, and having invited the parties to object to the question (which invitation they did not accept) I asked Prof Duflou if there would have been any ‘surprise’ had the deceased not fallen but died a day later. He said there would not have been any surprise, at least to him, although:
I think it's fair to say that it may have surprised the people who generally treated her but I see large numbers of deceased persons who have died with this level of disease who are found dead in bed and who have died of these conditions. (T150.11)
The question I asked the professor does not resolve the causation issue. I recognise that the accused could still have caused the death of the deceased notwithstanding that she might have died in any event from one or more of her pre-existing conditions. What the question and answer do highlight is the extent of the pre-existing conditions and the existing vulnerability of the deceased to a health failure causing her death, perhaps at any time.
In turn, the task of the Crown to establish causation became more difficult because of the existence of other plausible causes of death. Of the other possible health conditions, the sepsis, as a result of an infection derived from the pancreatic cancer, becomes a very real alternative. It is worth repeating a portion of what I have already quoted from Prof Duflou’s report:
The relevance of the pancreatic cancer in contributing to death is more difficult to determine although the presence of inflammation in the pancreas in the region of the cancer could entirely reasonably be the cause of for the patient’s persistent fever and was likely the source of infection diagnosed clinically.
If this sepsis was a cause of death then it must be regarded as, at least, a possible significant or substantial cause of death. This is not to say that there cannot be more than one significant or substantial cause of death. My conclusion is not that the sepsis, or any other of the pre-existing conditions suffered by the deceased, were the cause of death but rather, because they cannot be excluded, they become reasonable alternate hypotheses as being significant or substantial causes of death. Therefore the complications arising from the hip fracture cannot be accepted, beyond reasonable doubt, as being the substantial or significant cause of death.
Under cross-examination these answers were given by Prof Duflou:
So it is quite possible, is it not, that the source of what you described as the post-operative infection was not a source to do with an infection having been introduced by the surgery, but in fact something to do with the pancreatic cancer?---I don't think that the surgery itself likely caused infection directly, and the reason why I say that is that the hip wound did not look infected, and there was no clinical indication of surgical site infection. There was, however, pneumonia which is a frequent complication of surgery, anaesthesia and the post-operative period, and that - that would certainly be a source of infection.
Well, another source of infection was highly likely to be the pancreatic cancer, is that the case?---Yes, it could quite well be as well, yes.
I think you've identified to his Honour that sepsis is really a reaction to infection but there is no doubt that there is a good basis for inferring that there was infection which was caused by the pancreatic cancer?---Yes.
(T165.5)
The evidence of Prof Duflou, for example as seen in the above passage, clearly defines a reasonable alternative hypothesis for the deceased’s death.
Dr Van Diemen is a staff specialist at The Canberra Hospital. Her area of specialty is forensic medicine. She produced a report dated 30 June 2020, which was tendered as Exhibit J. The report is a comprehensive examination of the history of the deceased concluding with her demise in December 2018.
Dr Van Diemen expressed her ultimate conclusion in this way:
It is not possible to state with any surety whether the reported assault and fractured hip would reasonably be construed as resulting in death. However, despite Sheila CAPPER’s advanced age and underlying medical conditions, it is unlikely that she would have died in the time period in which she did, had the hip fracture not occurred. This is primarily due to the lack of any clinical evidence of an acute deterioration in her clinical condition prior to the reported assault.
Effectively then, Dr Van Diemen in her report was suggesting that the hip fracture had accelerated the death. Her opinion was primarily derived from the absence of any recorded clinical deterioration before the fall.
While an acceleration of death could well amount to a significant cause of death, for purposes of a manslaughter charge, the doctor’s opinion was, I think, substantially weakened in her oral evidence. This is not a criticism of the doctor. To the contrary I found her evidence particularly helpful and applaud her preparedness to make concessions where appropriate.
Under the heading of ‘Opinion’, Dr Van Diemen, in her report, has this important paragraph:
Sheila CAPPER experienced a number of significant complications resulting from her injuries and subsequent hospitalisation, including;
a.Sepsis of unknown origin,
b.Multi-organ failure, including;
i.Decompensated congestive cardiac (heart) failure;
1. Bilateral pleural effusions,
ii.Acute kidney injury,
c.Anaemia requiring blood transfusion,
d.Aspiration pneumonia,
e.Possible pancreatitis,
f.Troponin rise.
The just-quoted paragraph is an encapsulation of the doctor’s opinion of how the deceased came to pass away at a time earlier than she would have but for the fall. Her oral evidence put this conclusion in doubt:
(a)Dr Van Diemen agreed that the “Sepsis of unknown origin” by definition, could not be said to have resulted from the fall. If, as suggested by Prof Duflou, the sepsis arose from the pancreatic cancer, then, as already discussed above, the link to the fall becomes less arguable.
(b)In relation to “Aspiration pneumonia” Dr Van Diemen said this had been identified on 27 November 2018 which suggested that its cause had arisen a day or two earlier. She agreed that whatever this cause may have been, it was not necessarily a product of the fall and ensuing complications.
(c)Dr Van Diemen’s reference to pancreatitis was a reference to pancreatic cancer which was in existence at the time of the fall, although it’s progression could not have been determined. She did note that there did not seem to be any spread of cancer outside of the pancreas. The important point however is that the “possible pancreatitis” could not have resulted from the injuries and subsequent hospitalisation.
Dr Van Diemen explained the effects of adrenaline following a traumatic event. It is produced by the body as a means of preparation to deal with the insult that has occurred. It targets areas where blood is needed and increases the pain threshold. It reaches its peak effect within seconds or minutes. It certainly takes effect within a minute. Adrenaline does not have any effect on cognition.
The doctor spoke about the tag “high falls risk”. She said it could arise from a mechanical cause or a medical condition. All available efforts were needed to reduce the risk of falling. Dr Van Diemen said that she had not identified any previous falls in the deceased’s records.
Dr Van Diemen was cross-examined about the deceased’s vascular dementia. She had already explained that the disease was progressive and the rate of progression was difficult to measure or predict. She said that progression could be rapid so that a patient’s decline could begin suddenly and advance quickly.
Dr Van Diemen was taken to the deceased’s records, in Exhibit M, and in particular to the daily clinical records. It was suggested to Dr Van Diemen that the records, commencing on 5 November 2018 and progressing forward, indicated an increasing degree of agitation on the part of the deceased. Dr Van Diemen agreed that the notes were consistent with a shift in the progression of the dementia, although she said that there could have been other causes for the observations, such as the deceased having contracted a virus.
Although Dr Van Diemen, as noted above, said that adrenaline did not affect cognition she agreed that a person with an already impaired level of cognition, would be further cognitively affected by a fall of the type suffered by the deceased.
In relation to the risk of falling Dr Van Diemen said that it was usual to exclude a resident who carried such a risk from areas where the risk might be realised. For example, a laundry room with assorted trip hazards should be kept off limits to the resident.
Dr Van Diemen agreed that the deceased’s medical records indicated that she was hard of hearing and that she had glaucoma affecting her eyesight. Both of these conditions were relevant to her risk of falling.
Ultimately, in relation to her ‘acceleration of death’, opinion, Dr Van Diemen gave this evidence:
MR WHITE: To be fair to you, and I am not going to take you, it is in evidence, but you may wish to refer to the conclusion that you drew at 665 of your report. You've qualified that conclusion essentially for the reasons that you have just given us. I just want to take you to one sentence of that conclusion and that is the last sentence in paragraph 675. You say there that, 'This,' that is the connection between the hip injury and death, 'is primarily due - or that conclusion is primarily due to the lack of any clinical evidence of an acute deterioration in her clinical condition prior to the reported assault'?‑‑‑Yes.
But, of course, it could be that there was an underlying condition and it could be that this is, for want of a better word, a coincidence?---Yes, but - yes, but from the clinical evidence I can't say.
You can't say one way or the other from the clinical evidence can you?‑‑‑That's right.
(T186.9)
When Prof Duflou’s evidence is taken with that of Dr Van Diemen I cannot see any basis upon which the Crown can succeed on causation. The possibilities for the cause of death are varied, the unknowns are too numerous and the suppositions in favour of a link to the fall are too tenuous. It simply cannot be found that the fall was a substantial or significant cause of death.
The result will be that there will be a verdict of Not Guilty on the manslaughter charge.
Defence case
The accused did not lead any evidence in his case. I reminded myself that he was perfectly entitled to take this position. The onus always remained on the Crown to prove its case against him beyond reasonable doubt.
It is not necessary to say any more about the manslaughter charge.
Causing grievous bodily harm
The accused does not dispute that in falling to the ground, the deceased fractured her hip and sustained injuries to her right elbow and forehead. He also does not dispute that these injuries amounted to grievous bodily harm.
The main issue for determination here is what happened in the laundry room. In particular, has the Crown established beyond reasonable doubt that the accused pushed the deceased so that she fell to the floor.
I should note here that my findings in respect of the ‘pushing’ would have been equally applicable to the manslaughter charge had I not reached the above conclusion on causation.
The Crown made a very important concession in respect of the pushing. The Crown said that the only pushing that qualified to be the act required in the ingredients for the offences was a deliberate push and one of some force, sufficient to cause the deceased to fall over. Lesser pushes, such as those described by the accused as taking the deceased by the arm, or ushering her out, were not sufficient to prove guilt.
My future references to pushing will be of the nature outlined by the Crown.
Ultimately the Crown was left with only two sources of evidence upon which I could conclude that the deceased had been pushed. The Crown accepted that this evidence was circumstantial and therefore subject to the principles to be applied to such evidence. In written submissions the Crown accurately summed up the principles as follows:
A finding based on circumstantial evidence is not one that requires the Crown to exclude all explanations consistent with innocence. A circumstantial case is one in which the Crown must exclude all reasonable explanations consistent with innocence. The Crown’s burden in respect to circumstantial evidence can be readily overstated. This is not to submit that the Crown does not need to prove anything less than guilt beyond a reasonable doubt. But the obligation on the Crown to exclude only all reasonable hypotheses consistent with innocence must be emphasised. Further, it is relevant to emphasise that in considering a circumstantial case, the whole of the evidence, and not a piecemeal approach, is to be taken: see The Queen v Hillier [2007] HCA 13; 228 CLR 618 at [46].
[Footnotes omitted]
The Crown then submitted that no reasonable hypothesis consistent with innocence was available on the evidence. The Crown submitted that the evidence of Ms Saunders as to the state of the laundry room put to rest any reasonable hypothesis that the deceased might have tripped over some object in that room. I have already dealt to some degree with this evidence. In addition I agree with the accused’s submission that the Crown was attempting to create a point in its favour from a failure, or at least a gap, in its evidence.
At this stage the condition of the deceased becomes important. The accused said that being a high falls risk meant that she was liable to fall at any time, even without the presence of clutter or any other independent reason why she might have tripped.
The Crown said that this approach was flawed because the deceased had not previously fallen, she was apparently reasonably mobile and she had a habit of moving about the SCC independently including frequently going to the laundry to iron her blouse.
In respect of her blouse, it is noteworthy that the deceased did not have any garment with her when she was waiting to enter the laundry room. This may not be of much consequence as, for example, she may have simply wanted to ascertain if an iron was then available. But I think an available, and justifiable, inference is that it was unlikely she intended to stay in the laundry for very long. This is consistent with her exit from the laundry after the period of time observed on the CCTV footage.
Returning to the deceased’s condition I do not accept the Crown’s submission that she was unlikely to have fallen without some independent cause because her clinical records did not show any previous falls. Her very status as a high falls risk must imply that she was at risk of falling at any time. Indeed, being a high falls risk alone may be capable of being seen as a reasonable hypothesis for her fall.
After being asked questions about the deceased’s glaucoma and hearing loss Dr Van Diemen gave this evidence:
So all of these factors are factors which for a start feed into the fact that she is a higher falls risk?---Yes. Certainly the cognitive impairment and the glaucoma would increase her falls risk, yes.
And hearing loss in some situations could as well?---Yes, yes.
So all of those contribute to the fact that she was a falls risk?---Yes.
That is, a risk of falling on her own account?---Yes.
(T182.30)
Other than, to some degree, the observations of Ms Saunders, and notwithstanding the many other people at the scene, there was no evidence led about the state of the laundry room on the day of the incident. The Crown’s evidence relies entirely on what Ms Saunders thinks would have been the case. It is contrary to the photographs which show a factual scene, albeit photographs taken some months later.
The Crown then submitted that the manner of her fall, as depicted in the CCTV footage, could only be consistent with her having been pushed. Any reasonable interpretation of the footage, submitted the Crown, could only be consistent with the deceased having been subjected to some force.
This brings me conveniently to the CCTV footage.
On initial viewing the footage appears to show the deceased coming rapidly out of the laundry room. However there are some drawbacks to the footage which must limit the reliance that is placed upon this impression. These include:
(a)Most importantly, it is not shot in real-time. The result is that the footage has a degree of stutter which distorts the manner in which the deceased came out of the laundry room and fell to the ground. It appears she fell at a very quick rate, perhaps consistent with having been subjected to a forceful push. However to reach such a conclusion would be to allow the footage to be treated as an actual (in terms of time and flow) rendition of the fall. The fall did not actually occur as viewed on the footage. I note here that the evidence given by Dr Gibson on the voir dire as to the frames at which the footage was shot was not the subject of any application to be included in the trial evidence. The same applies to his estimates of the speed at which the deceased fell.
(b)There are some distortions that are evident. An example is the comparitive heights of the accused and the deceased. When first seen down the corridor, some way from the laundry door, the accused appears significantly taller than the deceased. However when at the laundry door, although still apparently taller, the difference is much less significant.
The two drawbacks I have just mentioned do not render the CCTV to be of little use. To the contrary, it gives a vivid display of the general events that occurred. But as with any photographic and video evidence it must not be allowed to dictate conclusions especially on matters which might be affected by its inherent deficiencies, such as it not being shot in real-time.
Other factors that are relevant to the CCTV footage are the following:
(a)The footage does not include any view within the laundry room.
(b)It does show a member of staff leaving the room with a trolley which must have been present when the deceased entered the room.
(c)The shadows which appear on the door opening and closing must be treated with caution. There were at least two sources of light in the room, one through the large windows to the outdoors and the other from the artificial lamp in the ceiling.
(d)The deceased entered the laundry room in a generally forward motion. She did not come out backwards, as if she had been pushed backwards having entered the room. She appears to be falling either forwards or laterally.
(e)The CCTV footage, in the prelude to the accused and deceased entering the laundry room, does not give any indication of any animosity between the two people. In this regard I note the apparent sadness and regret on the part of the accused about the events. On the following day he went to the nurses’ station and said: “I am sorry that I did not come and tell you guys that Marie was on the floor”. (T112.23)
The Crown said the “video paints a thousand words”. It certainly paints a picture, but the picture must be viewed against the background of its constituents. Its flaws cannot be ignored.
Besides the CCTV footage, as mentioned above, the Crown also relied on the words spoken by the deceased after she fell. They were “He pushed me. He pushed me” and a little later “That man, he did it, he did it”.
The Crown submitted that these statements were reliable particularly in the light of the evidence of Dr Van Diemen about the effects of adrenaline. I have discussed these above. The Crown submitted that when the statements were made the adrenaline would have begun its operation so that the deceased then had a higher threshold of pain and her observations would not have been overwhelmed by pain.
The accused submitted, and I agree, that the deceased’s statements are unreliable. This was because:
(a)After her fall the deceased was in a very confusing situation. She already had cognitive deficits and an impaired short-term memory. This was confirmed by Dr Van Diemen (T179.18).
(b)More importantly, the doctor gave this evidence about the deceased’s cognition:
Now I think you were asked some questions about the effect of the release of adrenalin that I think we can readily assume must have occurred to Ms Capper when she had the fall and you said effectively that that didn't have an effect on cognition but the circumstances of that fall would certainly have had effect ‑ an effect on Ms Capper's cognition would they not?---Yes. Yes, you would assume so, yes.
Here was a patient with fairly severe dementia who was suddenly put in this terrible traumatic situation which she may not have fully understood, is that right?---Yes, yes.
Subject to experiences such as pain and emotions that she might not have understood, is that right?---Yes, yes.
That would have all affected her cognition?---Yes, so any abnormal event or situation or environment can adversely affect a patient's cognition when they have underlying cognitive impairment, yes.
(T179.37)
(c)It is unknown what the deceased meant by the word “pushed”. It is as consistent with the Crown’s interpretation of pushed as with a much lesser exertion of force, but one which, perhaps combined with her inherent risk of falling, caused her to fall.
(d)In addition to the above I have to view this evidence having given myself a specific warning about its reliability. This warning arises from s 165 of the Evidence Act 2001 (ACT). I was requested to give myself the warning by the accused.
Having regard then to the deceased’s pre-existing condition, the likely effect of the fall on her cognition, the overall circumstances of the sudden event, the interpretation of her use of “pushed” and the warning that I have given myself, I am compelled to conclude that the statements made by the deceased are not reliable. They must be put aside.
Although perhaps not necessary I think I should make some comments on the Crown’s submission that anything said by the accused was not reliable. This extended to his comments after the event and to those included in the recorded conversations.
Dr Van Diemen gave some oral evidence about the accused’s state of cognition. She was also the primary source for the agreed facts contained in Exhibit O. From these facts it can be seen that the accused had “multiple complex medical conditions”, he had a fall resulting in skull fractures and a brain injury in 2012 and he had a stroke in 2013. He was admitted to SCC in September 2015 to assist in the control of his insulin requirements. Besides Type I diabetes he also suffered from epilepsy.
Dr Van Diemen had actually been his treating doctor when he had been admitted to intensive care, presumably after his fall. She said that his condition had potentially affected his memory. There was this passage of evidence:
In relation to memory, there was a demonstrated mildly reduced recall of information relative to his same aged peers, verbal information was initially acquired was generally retained and successfully retrieved after a lay period. Mr Amato's memory for visual information directly after presentation was variable and he was in the low average range after a lay period, so that simply says that there was - there is still a residual impact on memory and you would interpolate you would - one would expect that in someone with Mr Amato's history?---Yes.
(T188.44).
As pointed out by the Crown the various statements made by the accused in the intercepted conversations are not consistent as between each other and also in comparison to the CCTV footage. I think there is substance in these observations and I would have been very reluctant to base any conclusions on the various statements made by the accused.
Nevertheless, I should say I was impressed with the evidence of Mr Hacker and, relevantly, by his recollection of a consistent theme in the accused’s conversations with him:
Can you tell us about any recollection you have starting with the first conversation you can remember?---Well, I mean, the conversations have all been pretty similar. When he's been talking about the incident itself, that he – this lady followed him into the laundry. Mario was aware of the fact she wasn't allowed in the laundry and Mario then asked her to leave. I think he ushered her out of the door – that's my words, not Mario's – and then closed the door or pushed the door or whatever word.
(T128.5)
Conclusion
I rejected the Crown case on manslaughter in the course of discussing the medical evidence on causation. I later found that the Crown had not proved beyond reasonable doubt that the deceased had been pushed in the manner alleged by the Crown. The latter finding is relevant to both charges.
Accordingly, I return verdicts of Not Guilty on both counts in the indictment.
| I certify that the preceding one-hundred-and-fifty-four [155] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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