R v Barnes

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1532 of 2007

THE QUEEN	Plaintiff
v
BRENDAN BARNES	Defendant

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	25. 26, 27, 28, 29 February; 3, 4, 5, 6, 7, 11, 12, 13 March 2008
DATE OF RULING:	7 March 2008
CASE MAY BE CITED AS:	R v Barnes
MEDIUM NEUTRAL CITATION:	[2008] VSC 66

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Criminal Law – Murder – No case submission – Circumstantial evidence – Concept of reckless murder – Alternative charge of manslaughter

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr G. Silbert SC Ms. S Borg	Mr G. Taberner Office of Public Prosecutions
For the Accused	Mr M. Rochford Mr C. Carr	Ms E. Aldersea Morwell Victorian Legal Aid

HIS HONOUR:

APPLICATION

The accused is charged with the murder of Max Webster, an infant who died on 20 December 2004. At the conclusion of the Crown case yesterday morning, Mr Rochford, who appeared with Mr Carr, for the accused made a submission that the accused had no case to answer on this charge. I then heard submissions from Mr Rochford and from Mr Silbert SC who appears with Ms Borg for the Crown.
The charge relates to actions allegedly committed by the accused at Skye on 26 September 2004.

PRINCIPLES

The principles in relation to a no case submission at the conclusion of the Crown case were set out by the High Court in Doney v R[1]:
“It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.”
[1](1990) 171 CLR 207 at 214-215. See also Attorney-General’s Reference (No. 1 of 1983) [1983] 2 VR 410 at 417
It was also said in Doney[2]:
“Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded”.
[2]Supra at p 211
In R v Cengiz[3] Ormiston JA stated:
“If it can be shown that it is open to the jury to hold that all other hypotheses should excluded as irrational or unreasonable, then it is important to allow the jury to apply their collective minds to the issue, because, as was said later in Doney, ‘… the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters’ ”.[4]
Harper AJA stated the relevant test as follows:
“It sometimes happens in a circumstantial case that the evidence is not in dispute, but the parties disagree about the inference or inferences which should be drawn from the facts. In such cases, the judge must take the case away from the jury if, and only if, an inference consistent with innocence is not only open on the undisputed evidence but is also an inference which cannot be rationally excluded” (My emphasis)
[3][1998] 3 VR 720 at 721
[4]Supra at 735
A similar approach was taken by the Court of Criminal Appeal of South Australia in Case Stated by Director of Public Prosecutions (No. 2 of 1993)[5]. King CJ said of the trial judge’s role:
“He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence”.
He went on further to say:
“I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence”. (My emphasis).
[5][1993] SASC 4152 (1993); 70 A Crim. R. 323 at 327
As I have stated, the accused is charged with the murder of Max Webster. The Crown does not suggest that the actions of the accused were intentional; rather it relies upon the concept of “reckless murder”.
In R. v TY[6] the Chief Justice stated:
“In my view, a jury in the circumstances of reckless murder should be directed that they must be satisfied beyond reasonable doubt that:
(1)       The accused caused the death of the deceased.
(2)       The accused ought and must have foreseen the consequences of the act contemplated; and further that,
(3)       In assessing foresight, what a reasonable person might have foreseen is relevant but the accused’s actual state of mind is critically important and they should not treat what they think a reasonable person’s reaction would be in the circumstances as decisive of the accused’s state of mind;
(4)       In assessing the accused’s state of mind the accused’s circumstances are relevant (such as age, background, educational and social circumstances, emotional state and state of sobriety)”.
[6](2006) 12 VR 557
Accordingly in determining whether the accused is guilty of “reckless murder”, the Crown will need to prove beyond reasonable doubt, inter alia, that –
(a)the accused caused the death of Maxwell Webster;
(b)that the actions of the accused which caused Maxwell Webster’s death were carried out actually knowing that such actions would probably cause death or really serious injury to Maxwell Webster.
On numerous occasions appellate courts have cautioned prosecutors about the dangers of relying upon a “reckless murder” charge particularly when an alternative charge of unlawful and dangerous act manslaughter is open on the evidence: R v Barrett;[7] R v TY;[8] Pemble v The Queen[9] and R v Aiton.[10] As Barwick CJ said in La Fontaine v The Queen[11]:
“If the issue is to be placed before the jury, at all, the facts of the case must make it necessary to do so in a practical sense”.
[7][2007] VSCA 95.
[8](2006) 12 VR 55.
[9](1971) 124 CLR 107.
[10](1993) 68 A Crim R 578.
[11](1976) 136 CLR 62 at 98.
It is clear, despite these admonitions, that in an appropriate case (of which R. v Barett is one),[12] both charges will be committed to the jury for its deliberation. However in my view, these statements of caution require me to consider this application particularly carefully.

[12][2007] VSCA 95

THE ISSUES

The following are the primary issues of contest between the Crown and the defence, namely –
(a)whether the deceased died as a result of the external application of force (ie. shaking or striking);
(b)that in the event that (a) is answered affirmatively, whether it can be established beyond reasonable doubt by the Crown that the accused, had carried out any action which produced the injuries sustained by the deceased;
(c)that in the event that (b) is answered affirmatively, then can the Crown establish on the evidence that the state of mind of the accused was such that at the time that the actions were carried out by him, he actually knew that such actions would probably cause death or really serious injury to Max Webster.
It is the third element to which this application is directed: ie the accused ought and must have foreseen that the consequences of his actions would probably result in Max suffering really serious injury or death.

THE PROSECUTION CASE

The Crown case is circumstantial. There is no direct evidence as to how, at around midnight on 26 September 2004, Max came to be in such a parlous state as the result of a serious head injury, that some 2½ months later resulted in his death from complications of that condition.
The accused has consistently denied that he inflicted any injury upon Max. He does, however, accept in his records of interview, that he shook Max – but non-violently and only to try and wake him up shortly prior to midnight on 26 September.
The Crown case, in terms of fixing the timing of the injury to Max and the manner in which such injury may have occurred, turns upon expert evidence called by the Crown based upon an analysis of Max’s condition after admission to the Royal Children’s Hospital (“RCH”), as well as a series of studies, radiological and ophthalmological, carried out within days of Max’s admission to the RCH.
It is primarily from this expert evidence that the Crown would seek to establish facts which would enable a jury to draw inferences as to the accused’s state of mind at the time the injury was allegedly inflicted by him.
The Crown also relies upon the fact the accused was a previously married man with three children and, as such, says that it could be inferred that he would be well aware of the consequences of shaking a child.
I now turn to the evidence.

THE EVIDENCE

There is sufficient evidence capable of supporting a jury concluding that the accused caused Max’s death.
The only two persons in a position to inflict injury upon Max in the period of two days prior to the onset of his severe symptoms were the accused and Max’s mother – Paula Duffy.
If the jury accept the evidence of Paula Duffy that she at no time shook or harmed Max (and indeed was incapable physically of doing so) it is open to the jury to conclude that the only person who could have inflicted injury to Max Webster was the accused. This conclusion flows not only from Paula Duffy’s evidence but also from the evidence of a number of other witnesses (including her GP) as to her physical condition in the months and weeks preceding 26 September 2004 and her interaction with Max.
The accused admits that he did shake Max, although not with any severity and solely to wake him when he appeared to be in a distressed and comatose state.
Four medical witnesses gave evidence as to the nature and cause of Max’s injuries – namely:
-          Dr Cordner, pathologist;
-          Dr Dondey, ophthalmologist;
-          Dr Smith, paediatrician; and
-          Dr Coleman, radiologist.
Doctor Smith (a paediatrician at the RCH) and Doctor Coleman (a radiologist at the RCH) identified three separate areas of injury to Max’s head, namely:
(a) the subdural haemorrhages in the posterior area of the brain;
(b)the significant retinal haemorrhages in both the left and right eyes;
(c)the significant brain swelling observed on the MRI of 1 October.
The medical evidence (particularly from Doctors Dondey and Smith) provides the foundation for a conclusion that Max’s injuries were non-accidental. There is a divergence amongst the various practitioners as to when the injuries occurred and the estimates of a timing range from within hours of Max being admitted to the RCH to several days. However, there is, clearly evidence capable of establishing that the injuries were inflicted on or about the evening of the 26^th.
I recite the above facts as background to the substantive contention.
The contentions of Mr Rochford and Mr Carr focused on whether the Crown case is, on the best view of the evidence, capable of establishing that the accused actually knew that his actions would probably cause death or serious injury to Max.
Taking each relevant witness at the best for the Crown, the evidence discloses the following:
(a)from Professor Cordner, pathologist: there is a reasonably strong association between the existence of retinal haemorrhages and the circumstances of shaking; a relevantly modest level of force could produce a subdural haemorrhage;
(c)from Dr Coleman, radiologist: the injury is traumatic. However, she did not give any evidence about the degree of force required;
(d)from Dr Dondey, ophthalmologist: the extent of haemorrhaging around the retina was consistent with a crushing head injury or, in the absence of such an injury, “would be consistent with a violent shaking as described in a non-accidental injury”.[13] She did not believe it was consistent, having regard to the literature, with a blow but rather was the result of shaking. She also said “well it’s reported to occur due to a violent acceleration/deceleration of the neck. In young children the head is relatively heavy and the neck muscles are not strong if an adult grabs a child by the torso and shakes them the heavy head bounces backwards and forwards violently and there is a rupturing of the blood vessels within the brain and also within the eye”. [14]
(e)from Dr Smith, paediatrician: the retinal trauma to Max was a result of “typically inflicted head injury either of shaking and/or impact scenario”.[15] “These three injuries are typically seen in inflicted head injury and I think the most likely type of inflicted head injury is shaking alone, although it also can be seen in shaking and impact and also impact.” [16]
[13](T118)
[14](T120)
[15](T188)
[16](T191)

INFERENCES OPEN TO THE JURY

In my view it is open to the jury to conclude on the basis of Dr Dondey’s evidence that the injury to Max occurred as a result of violent shaking. It is also open, as I have said, to the jury to conclude that that shaking was carried out by the accused shortly prior to Max developing his marked symptoms in the late evening of 26 September.
However, the question arises as to whether the jury can infer, on that evidence in combination with his inferred knowledge as to how to handle infants, that the shaking was sufficiently violent to be capable of leading only to an inference that the accused actually knew that in carrying out such actions he would probably cause really serious injury or death to Max. Or to put it another way can the jury on this evidence rationally exclude the hypothesis that the accused believed his actions would cause injury but that such actions would fall short of causing really serious injury (if it is accepted that he shook the baby violently).
I accept that the evidence is capable of supporting the inference that the accused actually knew that his actions would cause really serious injury. However that does not end the inquiry. I need to determine whether the evidence taken at its best for the Crown can exclude the competing inference – namely that the accused may have known that his actions would cause injury but as I have said falling short of really serious injury. On the facts established by the Crown, and for the reasons I will set out subsequently, I am persuaded that an alternative inference, namely that the accused actually knew that he would cause injury, but not really serious injury, cannot be rationally excluded. The availability of this inference must result in a verdict of not guilty on the charge of murder.
The evidence I have identified from the medical practitioners as to shaking does not, even if combined with the accused’s inferred parental knowledge, permit an inference being drawn that, to the exclusion of all other hypotheses, the accused must have foreseen that the consequences of violently shaking a baby was that of really serious injury. There is a complete lack of evidence (or a vacuum as Mr Rochford called it) as to the actions of the accused which could have caused such an injury other than the proposition that it was a violent shaking. If the evidence was capable of being more specific as to the nature of the actions involved in the shaking it may lead to such an inference being open to the exclusion of others. For instance, the jury could, if there was evidence that the accused engaged in a series of shaking incidents, infer, based on these events, that there was a likelihood that the accused knew that he would cause really serious injury to the child. Alternatively if the evidence established that the shaking took place over a period of some time then the jury could infer that the accused had the requisite knowledge as to the consequences of his actions. Both these inferences, if available, could be drawn to the exclusion of other inferences consistent with innocence. However there is no such evidentiary basis to permit the drawing of such inferences. On the present state of the evidence they would be no more than speculation or conjecture.
The problem, as illustrated by these two examples, is that it is, in my view, impossible to identify from the expert opinions, evidence capable of supporting an inference that the accused had the requisite knowledge as to the likely consequences and particularly that of really serious injury at the time that Max was subjected to shaking – assuming the jury accept that proposition.
The inference to be drawn from the accused’s knowledge as a parent of the fragility of young children does not, in my view, advance the Crown’s contention very far at all. One is still left with the question – what was his state of mind as to his actions at the time of the alleged shaking.
Is there any evidence, other than expert evidence, coupled with the accused’s implied parental knowledge which is capable of establishing beyond a reasonable doubt that the accused had the requisite knowledge? The Crown did not suggest any.
In passing I note that although there were some very minor injuries to Max observed at the hospital to Max (the most significant of which seems to be some bruising to his right ear) none lead anywhere near establishing a factual basis for inferring the degree of force or the length of time over which Max may have been shaken. Indeed the Crown did not rely upon these matters.
In my view there is no other evidence which can be utilised by the Crown as being capable of establishing the factual basis (in conjunction with the medical evidence and the implied parental knowledge) which can exclude the rational hypothesis that the accused’s state of knowledge fell short of knowing that his actions would cause really serious injury.
R v Stacey[17] concerned a baby-shaking case in which the appellant had been convicted of murder. The case went to the jury on the question of intentional murder; it involved a determination by the English Court of Appeal as to whether a guilty verdict was unsafe, nevertheless it is illustrative of the problem of determining the state of mind of the accused in cases such as this:
“Other grounds of appeal having been examined, and in the end abandoned, that leaves only the question of whether the jury was entitled to find that she intended to do really serious harm. We are troubled about that. One brief period of violent shaking by a frustrated mother and child minder was all that was required to explain this death. Apart from the bruises to the neck, no other injuries were found. As the judge said, an intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way that any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter.” (My emphasis).
[17][2001] EWCA Crim 2031 per Kennedy LJ at para 48.
In my view it is equally as difficult in a case such as this in which the jury must be satisfied that the accused actually knew that his actions would probably cause death or really serious injury to the victim.

In summary the application by the accused must be upheld. There is, in my view, no case to answer on the charge of murder. I propose to direct the jury to return a verdict of not guilty on the charge of murder. The jury will then be required to determine whether the accused is guilty on the alternative charge of manslaughter.

[2008] VSC 66

7 March 2008