R v ANDERSEN No. SCCRM-98-61 Judgment No. S6927

R v Michael Keith ANDERSEN
[1998] SASC 6927

Trial by Judge Alone
Acting Justice King

KING AJ The accused is charged with murder. The particulars of the offence alleged in the information are that he “on or about 21 February 1997 at Elizabeth Grove, murdered Kirk Dorovata-Chapman”. He pleaded not guilty and elected, pursuant to s7(1)(a) of the Juries Act 1927, to be tried by the judge alone. The trial proceeded before me sitting without a jury.
The deceased was at the date of his death aged two years and three months, having been born on 12 November 1994. His height was 88 cm and his weight 10.75 kg. He had a condition of the brain known as periventricular leukomalacia, resulting from some experience at or about the time of birth. That condition appears to have resulted in episodes occurring from time to time in which the child stared blankly ahead for a short period. He did not, however, fall, stumble or become unbalanced during these episodes and the condition has no bearing on the issues in this case. His general health was good.
The child was the offspring of a union between Grace Dorovata and a man named Chapman. The relationship had ended. Grace Dorovata commenced a sexual relationship with the accused in December 1996. They maintained separate households but habitually stayed at one another’s homes. Kirk’s mother had custody and Kirk was ordinarily with her when she was with the accused. The accused’s relationship with Kirk appeared to be good.
On Friday morning, 21 February 1997, Grace and Kirk were at the home of the accused, having stayed overnight. It had been arranged for the accused to care for Kirk on that morning while Grace attended a TAFE course. The accused awakened as Grace left at about 8.30 am. She left him some cigarettes and took her leave. There had been no sound from Kirk who was in an adjoining room and still apparently asleep.
At about 11 am, the accused appeared at the home of Michael Maher and Elizabeth Heane, which was three houses along the street from the accused’s home. He had Kirk in his arms. The accused had discarded a soiled disposable napkin near the door. Kirk was unconscious or almost unconscious. The back of his hair and neck were wet. Kirk vomited a watery substance. The accused said that he thought that Kirk had slipped in the bath and hit his head. An ambulance was summoned and Kirk was taken to Lyell McEwin Hospital. On the way, the accused told one of the ambulance officers, a Mr Martin, that the child was having a bath at the time, that he was in another room, that he heard a thud, that he went back to investigate and saw that the child was immersed in about six inches of water in the bath.
After examination at the Lyell McEwin Hospital, Kirk was taken to the Adelaide Women’s and Children’s Hospital where he was placed on a respirator. He was announced brain dead at about 12 noon on the following day, Saturday 22 February. His bodily processes were kept functioning on the respirator until about 4 pm on that day. A post mortem examination was performed by pathologists, Drs Bourne and Gilbert, in the presence of a paediatrician, Dr Donald, at 8.15 pm that night. I mention that the autopsy report states the time of death, apparently incorrectly, as 1715 hours.
The post-mortem examination disclosed the following injuries:

1....... A vertical bruise on the forehead just to the right of the mid-line measuring 60 mm x 10 mm.
2....... A small purple bruise above the right eyebrow, 5 mm in diameter located 25 mm above the right eyebrow.
3....... A long linear bruise commencing on the lateral aspect of the forehead and travelling inferiorly and posteriorly towards the external auditory meatus. The bruise was 75 mm in length, 2 - 3 mm across, with a 15 mm expansion just above the lateral end of the right eyebrow. It was greenish in colour.
4....... The right upper eyelid was slightly swollen.
5....... A 7 mm purple bruise on the right side of the chin.
6....... Swelling at the bridge of the nose.
7....... A linear 20 x 0.5 mm scabbed abrasion just above the left eyebrow.
8....... A purple bruise on the pubis extending downwards onto the base of the penis measuring 25 mm x 15 mm in area, associated with slight greenish discolouration of the adjacent soft tissue.
9....... A 10 mm x 8 mm purple bruise on the dorsal aspect of the distal shaft of the penis.
10..... A bruise approximately 70 mm x 20 mm in area in the left frontoparietal region of the scalp.
11..... A haemorrhage into the mesenteric adipose tissue and lymph nodes.
12..... The brain was severely damaged. There were severe multi-focal axonal injury, a subdural haemorrhage and severe cerebral swelling.

Examination of the eyes disclosed retinal haemorrhages and oedema.

The cause of death was found to be a closed head injury with subdural haematoma.
It was the unanimous view of the medical experts who gave evidence, that the injuries to the head were at least consistent with having been caused by blows inflicted by means of a blunt object at about the time at which the accused took Kirk to the neighbour’s house.
The case for the prosecution is that that is the only reasonable explanation of the injuries and that as the accused was alone with the child at that time and for some two and a half hours before that time, the necessary inference is that he inflicted the blows.
The accused gave evidence. He was 19 years of age at the time of Kirk’s death. He has no prior convictions other than for minor irrelevant matters. His evidence repeated the account which he gave to the police when interviewed on the night of 21 February 1997 and on the following Monday. The substance of his evidence was as follows. He was not fully awake when Grace left to go to TAFE. Later in the morning he awoke and heard Kirk making his usual noises. He changed his nappy, gave him a bottle and left him to play around the house. There was nothing unusual about the child. The accused went back to bed. Later Kirk appeared in the bedroom. He was grizzly and calling for his mum. The weather was very hot and Kirk looked hot and sweaty. He looked slightly dizzy and slightly unbalanced. The accused decided to “cool him down a bit” by placing him in the bath. He removed a soiled nappy and placed him in the bath in water to a depth of three or four inches. He left Kirk sitting up in the bath and went to the bedroom to have a cigarette. When he had smoked half the cigarette he returned to the bathroom to check on Kirk. The child was lying on his back. His nose and mouth were above the level of the water. His eyes were open but he was unresponsive. The accused lay the child on the lounge floor and pulled on a pair of shorts. He grabbed the soiled nappy which had been placed outside the door of the child’s bedroom and held it on to Kirk’s bottom. He then ran to Elizabeth Heane’s house. He denied that he had struck the child that morning or at any other time.
I shall have occasion during the course of these reasons to refer to certain aspects of the accused’s evidence and in particular to instances in which I feel strongly that he was embellishing his account in an effort to support his case. At this stage, I content myself with a general observation that he did not impress me as a witness. I cannot place sufficient weight on his evidence to make it alone the basis of any positive finding of fact. It remains to consider of course whether his version has been refuted by the prosecution beyond reasonable doubt.
Before considering further the issues in the case, it is necessary to consider the evidence as to the age of the various bruises observed at post-mortem and therefore their relevance to the case. In addition to the post-mortem examination they were observed by medical experts in the hospitals while the child was still living and, in some instances, were subjected after death to histological testing. It is clear that the age of bruises cannot be established precisely, even by histological examination, but they can be aged with confidence within certain ranges.
I find on the overwhelming weight of the expert evidence that the long linear bruise on the right temple, the bruising in the left frontoparietal region, the bruise above the right eyebrow, the bruise to the right upper eyelid and the bruise to the chin, were recent bruises which could have occurred on the Friday morning. Likewise, the mesenteric haematoma was consistent with having been sustained at the same time. In particular, I find that the long linear bruise could not have occurred earlier than 48 hours from the date of death and specifically could not have been present on the previous Wednesday. The significance of that finding will become apparent later in these reasons. The bruise to the centre of the forehead and the injuries to the supra pubic area and the penis occurred at an earlier time and could not have been sustained at the same time as the other injuries.
The evidence as to the age of the long linear bruise requires some discussion. Grace Dorovata gave evidence that on the Tuesday night, 18 February, Kirk was sleeping in a bed about 18 inches to two feet high. The room was carpeted and there was a wooden floor under the carpet. She heard “a little banging sound” and “a slight moan because it was pretty hot I suppose”. She gave Kirk a drink and placed him in a cot. On the Wednesday morning she went shopping with her mother about 6.30 am, leaving Kirk in the care of the accused who was asleep in her bed. When she returned after about half an hour, Kirk was in the bed with the accused. The accused showed her a bruise on Kirk’s right temple. She went so far as to state that the bruise was the same bruise as the bruise on the right temple depicted in the photographs taken at post-mortem. The accused also gave evidence that he observed the bruise on the Wednesday morning and he gave a description which fitted the bruise depicted in the photographs.
Mrs Kathleen Dorovata, Grace’s mother, gave evidence that she saw the bruise on Thursday, 20 February. She described it as “a little one on the right side of the forehead ... it was only small, it looked like it was fading away, it was clearing up”. When shown the photograph she said most emphatically “It was completely different. It was only about half the length and was more up the top end”.
Dr Bourne and Dr Gilbert, the pathologists who observed the bruise at post-mortem and assessed the histological findings, were clear that the bruise was recent. Dr Bourne estimated that the injury had been sustained not more than 30 hours and Dr Gilbert not more that 48 hours before the cessation of artificial respiration at about 4 pm on the Saturday. The earliest possible time was therefore Thursday afternoon. The bruise could not possibly have been present on the Wednesday morning or be related to any tumble from the bed on the Tuesday night. This is confirmed by the evidence of Kathleen Dorovata. It is further confirmed by the fact that it was not observed by Ms Heane, or by the ambulance officers, but was first seen by doctors at Lyell McEwin. It was evidently the result of a very recent injury and was in the course of becoming visible. I reject the accused’s description of the bruise which he observed on the Wednesday morning. I think that he seized upon the existence of the small bruise observed by Mrs Dorovata to make it appear that it was the bruise observed by the doctors on the Friday, perhaps feeling that if that major bruise was explained in that way it would reduce the difficulty of reconciling the multiple injuries with a fall in the bath and perhaps give weight to a suggestion that the supposed fall out of bed on the Tuesday night had something to do with the child’s death. I think that Grace consciously tailored her evidence to support the accused. It was not the only indication in her evidence that she was willing to colour her evidence to assist the accused if she could. She has been in regular contact with him since his arrest.
It is possible that the bruise which Kathleen Dorovata observed was the old bruise on the central forehead seen at post-mortem and that she was mistaken about its location. Another possibility is that there was a small bruise on the right side of the forehead which had either completely faded by post-mortem or had been obscured by the subsequent extensive bruising on that side of the forehead.
I turn to the injury in the supra pubic and genital area. The bruising in this area was severe and was first seen by Grace Dorovata on the Wednesday afternoon. She had not observed it when she last changed Kirk’s napkin before noon. She was alarmed and sent the accused to the nearby telephone box to summon a doctor. Dr Christopoulos, a doctor with a locum service, arrived shortly afterwards. She showed him the bruising. He advised her to see her own doctor if it had not improved by Friday. I accept her version of the doctor’s visit and reject the doctor’s version. As the conflict between them as to what took place during the doctor’s visit is not material to the resolution of this case, I do not delay to elaborate my reasons for preferring her version.
Mrs Kathleen Dorovata saw the bruising on the Thursday. Its appearance on the Wednesday is consistent with the histological findings.
How did this injury occur? It is not clear whether the injury to the penile area is a separate injury from that to the supra pubic area. It would be possible for blood to track down from the supra pubic bruise to the penis. Whether one or two injuries, the trauma required would have been significant and painful. The injury is consistent with a blow or blows from a blunt instrument. If the penile bruising is the result of a separate injury, it is consistent with having been caused by someone yanking or twisting the penis with some severity. The alternative hypothesis to deliberately inflicted trauma is that the child came into accidental contact with some hard object. If that had occurred it would have been a painful incident. Kirk was in the care of Mrs Kathleen Dorovata on the Tuesday and in the care of either Grace or the accused on Tuesday night and Wednesday. Neither Kathleen, nor Grace, had any knowledge of an accident. The accused told ambulance officer, Martin, that Kirk had sustained the injury when he ran into “a tap out the front”. In evidence, and to the police, he disclaimed any knowledge of an accident which could have caused the injury. The injury would have been very painful and there can be no doubt that the child would have made his distress known to his carer at the time. This is a matter of common sense and common experience and is fortified by the unanimous view of the medical witnesses who were questioned on the point. I am left in no doubt that the injury was not caused accidentally but was the result of force deliberately applied to the area.
Who was responsible? The only persons who had the opportunity were the accused and Grace. She denied emphatically in evidence that she had ever used violence towards the child. She was regarded as a good mother who cared for the child properly, not only by her own mother, but also by the paternal grandmother, Mrs Chapman. The accused made no suggestion that he had ever ill-used the child. Although I have some reservations about some aspects of her evidence where I thought she was endeavouring to assist the accused, I considered that her denials of ever beating the child, and in particular of causing the pubic and genital injury, were entirely convincing and I have no doubt that she was telling the truth on the point.
I reject the hypothesis that she inflicted the injury beyond reasonable doubt. The only remaining hypothesis is that the accused caused the injury. The accused was left alone with the child at about 6.30 am on Wednesday. At one point in the police interview he made it clear that he did not function well early in the mornings. The weather was very hot and oppressive. He had not been in bed early, having arrived at Grace’s house at about 1 am. It is not difficult to envisage that if his sleep was disturbed by the child at that early hour, he may have been irritated and angered and that may explain what occurred. Whatever the explanation, I am left in no doubt that while Grace was out shopping, the accused deliberately applied to the child the force which caused the bruising to the supra pubic area and the area of the penis and testes. I shall discuss later the significance of this finding.
The facts that Kirk became unconscious while in the sole care of the accused and was found to have sustained severe head injuries capable of having been caused by being struck by a blunt object, are plainly capable of supporting an inference that the accused was responsible for causing those injuries. I must ask myself whether there is any hypothesis consistent with the accused’s innocence which is reasonably open on the evidence. Two alternative hypotheses require consideration. The first is that the mother caused the injuries before she left for her TAFE course. The second is that the injuries were caused by a fall in the bath.
I consider the first of these hypotheses. It involves that the child’s mother inflicted this severe head injury on the child at some time before she left for her TAFE course at about 8.30 am on the Friday. It was the unanimous view of the medical experts that the child would have been rendered unconscious or nearly unconscious immediately. The hypothesis therefore involves that the child’s mother left him in that condition, coolly took her leave of the accused and left him some cigarettes, and went off to her TAFE course without alerting anyone to the parlous condition of her son. Having regard to my observations of Grace Dorovata, to the evidence that she appeared to have been a good mother, and to her reaction on the Wednesday afternoon when she discovered the groin injury, I find the scenario which I have described to be nothing short of fantastic. There is the further circumstance that the accused, on his own version, changed the child’s nappy and gave him a bottle, without observing anything unusual. The weight of the medical evidence is that Kirk, having sustained these injuries, would not have recovered anything like normal consciousness.
Dr Collins, the pathologist called by the defence, did say that he considered that consciousness might be recovered to a sufficient degree that the effects of the injury might not be observed by a lay observer for a time. I am fully satisfied, however, that if the child had sustained this severe head injury prior to Grace’s departure, the accused could not fail to have noticed its effects when he changed the napkin and gave the child the bottle. Even when Kirk came into the bedroom later, the accused’s observation was simply that he was hot and sweaty. It was a very hot day occurring in the midst of a heat wave. The accused added, most unconvincingly, in his evidence that the child appeared slightly dizzy and unbalanced. There was no mention of that in his interview with the police and I am satisfied that it was an invented afterthought designed to support the theory of a fall in the bath. To my mind, the accused’s evidence itself effectively refutes the hypothesis that Grace Dorovata was responsible for the injuries. Having observed her demeanour closely, I am fully convinced by her denials in evidence that she inflicted the injuries. I have no difficulty in excluding this hypothesis beyond reasonable doubt.
I turn to the hypothesis that the fatal injuries were caused by a fall in the bath.
It should be said at the outset that the accused’s story that he left the child sitting in water in the bath, has little to support it. It depends essentially on the accused’s evidence and, as I have already indicated, I do not regard him as a witness to whose evidence I can attach weight. It is a story which has it difficulties. When the accused arrived at the home of Elizabeth Heane and John Maher, he discarded a soiled napkin. The prosecution urged the inference that the child was wearing the napkin when assaulted and that it was discarded because the accused, having decided to tell the story of the bath, belatedly realised that the napkin was inconsistent with it. It is true that if that theory is correct, discarding the napkin at the neighbour’s doorstep would not seem to have been the best option. Nevertheless, the accused failed to give any convincing explanation of why he took the napkin with him. The other difficulty in the story arises from the accused’s assertion to the police and in evidence that when he returned to his home after being at the hospital, the water was still in the bath and he then let it out. This evidence was in conflict with that of Elizabeth Heane and also that of Lisa Andersen, the accused’s sister. Ms Heane went to the accused’s house to make it secure after the ambulance left. There was no water in the bath apart from droplets on the side of the bath and on the bottom. Lisa Andersen went to the house with the accused after his return from the hospital. She looked into the bath and the only water was “around the side of the bath, like little just droplets and things, and the mat was wet”. Kirk’s hair and back of the neck were wet when Elizabeth Heane first saw him and I suppose that that, as well as the condition of the bath as observed by Ms Heane and Ms Andersen, is consistent with the use of the shower or the tap in an effort to revive the boy.

There was a difference of opinion among the medical witnesses as to whether the multiple head injuries could have been caused by a single fall in the bath. Dr Collins, the pathologist called by the defence, considered that if the child had climbed so as to stand on the edge of the bath he could have fallen in such a way as to strike his head on various objects such as the taps, pipes and the surfaces of the bath itself, thereby causing all the relevant head injuries and the intra-cranial damage. He considered that the postulated scenario was not impossible, although admittedly unusual. He put the scenario forward as a serious hypothesis to be considered.
The expert witnesses called by the prosecution took a different view. They were uniformly sceptical about the capacity of a fall from less than five feet to produce severe brain injury, although they conceded that there was a minority opinion amongst experts that that could occur. They all discounted, in various forms of expression, the view that the multiple injuries sustained by the deceased were caused by a fall in the bath. The paediatricians, Drs Raftos and Donald, were definite that a fall in the bath could not account for the multiple head injuries, as was the neurosurgeon, Dr Hanieh. Dr Thesinger, a paediatrician, regarded the proposition that a fall in the bath caused the head injuries as “extremely unlikely”, although possible, and Dr Slater put it as “most unlikely”, although possible. Having heard the tone in which those two witnesses used the word “possible” and observed their demeanour, I am sure that they were speaking of a bare or theoretical possibility rather than one to be seriously considered. Dr Gilbert, the pathologist, referred to it being a “fairly low probability but still possible”.
It is necessary at this point to express my views about the expert medical witnesses. Those called by the prosecution were all highly qualified. They had formed their views in the course of performing their ordinary duties and I am satisfied that they formed them objectively and expressed them dispassionately and without partisanship. Dr Collins, the pathologist called by the defence, is highly qualified and clearly has an impressive command of his subject. I am sure that he honestly held the opinions which he expressed. I felt, however, that his brief was to justify, if possible, some hypothesis other than the guilt of the accused. This led him to give excessive weight to mere possibilities and to present them as fit for serious consideration. It also led him into defensive answers and strained interpretations of the facts. I do not think that he approached the hypothesis of the fall as the cause of the fatal injuries in an objective fashion. Rather, he tended to assume the hypothesis and then make awkward facts fit the hypothesis. Thus he had to say that the mesenteric injury must have been caused at another time, despite the similarity in age to the head bruising. The bruise on the chin had to be explained as perhaps caused in attempts to resuscitate. The scenario had to be constructed by which the deceased must have climbed on to the side of the bath, stood up and fell face forward and rolled about so as to make a number of severe impacts with the bath or the fittings, to different parts of the head. Although I respect Dr Collin’s expertise and am sure that he expressed his honest opinions, I think that he was influenced by the role which he was performing and I prefer the evidence of the prosecution experts. It must be said, however, that although Dr Collins gave the scenario under discussion greater weight than I think can be justified, he conceded that the scenario, although not impossible, was unusual.
The question whether the multi-faceted head injuries could have been caused by a fall in the bath is by no means entirely, or even mainly, to be resolved by reference to medical opinions. Assistance may be gained from the experts, especially paediatricians trained and experienced in the ways of children, but it is largely a question of fact to be assessed by the tribunal of fact by reference to common sense and the probabilities. Medical witnesses are only marginally, if at all, better qualified than the layman to answer it. The scenario of this two year old child climbing on to the edge of the bath, managing to stand up on the edge and then falling, presumably face forward, so as to strike not only his right temple, but his right eyebrow, the bridge of his nose and the frontoparietal region on the other side of his head, and to do so with sufficient force to cause severe brain damage, defies my imagination; and that even if one accepts that the bruise to the chin may have been caused at some other time.
The matter, however, does not end there, because the mesenteric injury has to be considered. The unanimous view of the experts is that the injury resulted from severe compression of the abdomen, so that it was forced against the mesentery, pressing the mesentery against the spinal column, thereby causing the haemorrhage. A considerable degree of force was required. The injury is consistent with having been caused by a punch or kick or blow with a blunt object. It could be caused by accidental forceful collision with a hard object, but in a two year old child the possibilities are limited. The injury would have been painful and the pain would have continued for some time. The medical evidence establishes that the injury was of about the same age as the injuries which caused the head bruising. Kirk was in the care of his mother or the accused throughout the period during which this injury must have been sustained. Both disclaim any knowledge of an accident which could have caused it. There is no doubt that such an accident would have caused such pain and distress as would have been obvious to any carer. The child would have made his distress obvious. The conclusion that there was no such accident is irresistible. The injury must have been deliberately inflicted. For reasons already given, I am fully satisfied that the mother did not inflict violence on the child. That leaves only the accused as the assailant.
Having regard to the relevant ages of the injuries, I think that it would be fanciful to suppose that this injury was sustained at a different time from the fatal head injuries. The medical evidence is overwhelming that the mesenteric injury could not have been sustained in any fall which could have caused the head injuries. Dr Collins agrees with that. If, therefore, as I find, the mesenteric injury was caused at the same time as the fatal head injuries, the fatal head injuries could not have been caused by a fall in the bath.
I should mention at this point a side issue which arose as to whether there was a slowly developing subdural haematoma antecedent to the events of the Friday morning. It arose because it appeared to Dr Hanieh, the neurosurgeon, from the CT scan that there were two types of clot, one older than the other, indicating two subdural haemorrhages occurring at different times. This was not borne out, however, by the radiological report or the post-mortem examination which detected only one haematoma. The theory of an earlier subdural haemorrhage could be no more than a bare possibility, unsubstantiated by evidence. The theory put forward by Mr Stokes for the defence is that the supposed fall out of bed on the Tuesday night might have caused a slowly developing subdural haematoma which was “a potential contributing factor to the fall in the bath on the Friday morning”. At its highest, however, a pre-existing subdural bleed could only have rendered Kirk more susceptible to sustaining a subdural haematoma from trauma on the Friday morning. It could have no bearing, as Dr Collins makes clear, on the causation of the severe diffuse axonal injury and cerebral oedema which resulted in death. There was unquestionably a traumatic event on the Friday morning which resulted in death.
For the reasons stated above I am satisfied beyond reasonable doubt that the fatal head injuries were not sustained in consequence of the fall in the bath.
I have reached the conclusion that the deceased died in consequence of head injuries sustained at about 11 o’clock in the morning of 21 February. Those injuries were caused by blows to the head deliberately inflicted by means of an unknown blunt object. At the time the only person with the deceased was the accused and I infer that he inflicted the injuries. I have reached these conclusions beyond reasonable doubt and I reject the accused’s denials beyond reasonable doubt.
My conclusion is strengthened, although it does not depend upon it, by the injury in the pubic area inflicted on the child on the preceding Wednesday morning. If, as I have found, the accused deliberately applied force to the child so as to cause that injury, that tends strongly to rebut the possibility that the trauma on the Friday morning was accidentally sustained.
In order to prove the charge of murder, it is necessary for the prosecution to prove that the blows were inflicted with the intention of causing death or grievous bodily harm, or recklessly realising that they would probably do so. I have found this issue difficult. The nature of the injuries inflicted tends to suggest that the accused must have realised that at least grievous bodily harm would result. On the other hand, there is no evidence as to the nature of the object used and no basis for any inference as to the circumstances in which the blows came to be struck. In the end I am left in doubt as to whether the accused had the requisite state of mind for the crime of murder. I think that it is a reasonable possibility that he struck out in frustration with whatever was at hand without thought as to the consequences of his actions.
It is beyond doubt that the blows inflicted by the accused on the child amounted to assault and were therefore unlawful acts. They were also acts which carried a serious risk of injury to the child. The accused is undoubtedly guilty of manslaughter by unlawful and dangerous act.
The verdict of the court is that the accused is not guilty of murder but guilt of manslaughter.

[1998] SASC 6927

29 October 1998