R v Barrett (No 1) - [2019] SASC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BARRETT (No 1)
[2019] SASC 91
Reasons for Ruling of The Honourable Justice Vanstone
4 June 2019
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - JOINDER OF PERSONS OR COUNTS
Accused charged with two counts of manslaughter of babies delivered following planned home births at which she was allegedly acting as a midwife - where the prosecution seeks to adduce discreditable conduct evidence - whether evidence of each count is admissible in relation to the other - whether evidence of the accused's "general philosophy" regarding home birth admissible - whether evidence of a large number of other home births where the accused was present, unrelated to the charges, is admissible - whether an order for separate trials should be made.
Held: evidence tending to demonstrate the accused's philosophy is admissible where able to be clearly proved. Evidence relating to the two counts is cross-admissible. Evidence of the accused's general behavior at other births and elsewhere, though relevant, is excluded.
Evidence Act 1929 (SA) s 34P, referred to.

R v BARRETT (No 1)
[2019] SASC 91
Criminal.
VANSTONE J.
Ruling on admissibility of evidence and application for separate trials

Lisa Jane Barrett is charged with two counts of manslaughter. The prosecution alleges that she rendered services in the role of a midwife to two women, one in 2011 and the other in 2012. For present purposes I shall refer to the mothers of the victims as A and B. Those services were said to have been provided both in advance of the births and during the labour of each woman. In each instance what was planned was a home birth. There were known risk factors in relation to each of the pregnancies, although they were very different. Both children were born alive, but each was brain damaged at birth and died not long thereafter.
The prosecution alleges that the accused was criminally negligent in relation to the deaths of both babies. That negligence is said to have included the advice that was given to each mother ahead of her labour – including misleading advice and the omission to give relevant advice – and conduct during each woman’s labour, including a failure to advise, in a timely manner, that the home birth should be abandoned and each mother immediately transferred to a hospital.
The prosecution has filed a notice of intention to adduce discreditable conduct evidence. That evidence falls into a number of categories. First, it is contended that the evidence of each count in admissible in relation to the other count. Second, it is contended that evidence of the accused’s conduct in relation to multiple separate occasions of performing the role of a midwife at a home birth should be admitted. It is proposed that this evidence would be given, in the main, by the witnesses Honey Newman, Hannah Rice and Kristen Cheesman, who are or were friends of the accused and who worked alongside her for various periods prior to the two charged occasions. Those women, between them, attended over 50 home births where the accused acted as the midwife. Third, the prosecution wishes to lead evidence to establish the beliefs of the accused – which have been referred to as her philosophy – in relation to home births. In essence, it is suggested that the philosophy was, with one very specific exception, that all home births were safe and to be preferred to hospital births, and that the risks were always the same, whether the birth took place at home or in hospital. The nature of the evidence sought to be led under this heading extends to evidence given by the accused at one or more coronial inquests in relation to other home births where the accused acted as a midwife, statements made by the accused to other persons regarding her philosophy, material from her website, and intercepted telephone conversations in which the accused spoke of her attitudes to and beliefs about home births.
Ms S McDonald SC, for the prosecution, contends that this evidence will show that the accused’s general practice was to provide midwifery care well below the standard expected of a reasonably competent midwife and that those services were provided in the period leading up to the charged births and during each mother’s labour. This included providing inaccurate or inadequate advice about the risks of a home birth, discouraging women from having babies in hospital, discouraging them from consulting obstetricians and discouraging them from having tests or scans during pregnancy. The prosecution then wishes to establish through this evidence that it was the accused’s practice not to monitor the health of any baby adequately during labour and to fail to advise about any developing dangers during the labour or birth, such as would justify immediate removal to hospital.
This evidence is said to bear on proof of the two counts on the information in the following way. The statements of both A and B assert that both during their respective pregnancies and their ensuing labour they were not told of the significant risks associated with their pregnancies, risks which told against having a home birth; and that further, while in labour, they and their respective partners were not advised of the developing danger to their babies and were not advised to immediately seek an emergency transfer to hospital.
The prosecution contends that all the evidence of events at previous and subsequent births, as well as the evidence tending to prove a general philosophy, is relevant in relation to both counts and indeed that the evidence of each count is admissible in relation to the other count. The prosecution argues that, if A or B are challenged in relation to advice they claim the accused gave them, or failed to give them, both before and during their respective periods of labour, the similarity of things said to the other, and to other prospective mothers – for example underplaying the risks of a home birth – will be relevant to the credibility of A and B. That is so because it is alleged that the accused’s conduct was in conformity with her philosophy about home births.
Ms McDonald argues that the evidence “has strong probative value” having regard to the issues outlined and that probative value ‘substantially outweighs any prejudicial effect it may have on the defendant’: s 34P Evidence Act 1929 (SA).
Mr S Henchliffe QC, for the accused, objects to the evidence. He argues that the evidence does not meet the demanding requirements of s 34P of the Evidence Act and, even if some aspects of it do, the prejudicial effect of the evidence outweighs its probative value. It is merely material which goes to show bad character in a non-specific way. In relation to cross-admissibility he adds that the lack of similarity in the particular risk factors relevant to each of A’s and B’s pregnancies tells against any capacity to logically reason from either situation to the other.
Mr Henchliffe further argues that to require the accused to answer allegations relating to the 50 or so previous births is too onerous and will skew the trial and make the presentation of the accused’s defence extremely difficult. He puts that the accused could hardly be expected to recall all the details of the 50 plus births which would be described by Ms Newman and the others. In order to meet the allegations made by those women the accused would need to do substantial research in relation to each of those births, as well as requiring an extraordinary memory. In general terms, Mr Henchliffe argues that the evidence of what the accused said and did on other occasions does not specifically bear on what she said and did in relation to the two charged incidents. In other words, even if the accused failed to adequately advise one woman in relation to relevant risk factors associated with her impending birth, it does not follow that she failed to appropriately advise either A or B. In relation to the issue of separate trials Mr Henchliffe concedes that, in practical terms, the decision will largely turn on the decision made as to cross-admissibility of the counts.
I consider that evidence in the third category enumerated above, tending to demonstrate the accused’s philosophy, is capable of demonstrating a relevant disposition and, providing evidence tending to prove it is given with a degree of precision, has strong probative value having regard to the issue of what was said and done by the accused during the two pregnancies which have led to the charges. I do not consider the prejudicial effect of the evidence to be significant. It is really an attitude of mind rather than a criminal disposition. Therefore evidence of statements made by the accused herself in the form of written articles, evidence before the Deputy Coroner, intercepted telephone conversations between her and another, and like material is admissible.
In relation to the second category of evidence, although I consider that such evidence has potential relevance, such is the generalised nature of the statements by the colleagues who attended at various other births where the accused delivered a baby; and such is the generalised nature of the statements which they attribute to the accused, that I do not consider that all this evidence is strongly probative of the relevant factual issues. In addition, notwithstanding the potential relevance of this evidence, to allow a large mass of evidence to be given about births which are not the subject of a charge and which the accused may or may not recall in any detail would not only obscure the central issues in the trial, but would also distort it, in the sense that the accused would be required to meet potentially hundreds of allegations about what she said and did which are probably, by now, very difficult to recall and, if necessary, deflect. My decision is, then, that even if that evidence is admissible, it should be excluded as an exercise of discretion.
I find the evidence relating to the two counts to be cross-admissible, insofar as there is evidence of things said and not said to A and B relevant to the health and wellbeing of the foetus, the baby and the mother herself. I find the evidence of each count is admissible in relation to the other count on that question of what the accused said and did in relation to the two women. It is strongly probative on that issue. Unlike the second category, the evidence supporting each count is specific and well documented. Insofar as there are parallels between the counts in terms of the accused’s alleged conduct, it may be helpful to have available evidence of what the accused allegedly said and did by way of imparting information, interacting with clients and their partners and in terms of her method of dealing with difficult situations. I do not consider it of much moment that the risk factors associated with each of the two births were different. Apart from that, having only one trial will mean that many witnesses will not have to attend at two trials and, to some extent, give the same evidence twice.
However, it is not a question of using a conclusion about guilt of one count in relation to the other count. Furthermore, in the notice of intention to adduce discreditable conduct evidence the prosecution suggests that what is sought to be proved is ‘evidence of the accused’s general practice of providing midwifery care to women below the standard expected of a reasonably competent midwife both before and during the birthing process’. I do not admit any evidence that I have referred to for that purpose. Rather, it is only clear or objective evidence of the accused’s manner of operating that is admitted on the basis that it may bear on what was or was not said and done by the accused in relation to A and B both leading up to the births and afterwards.
I rule as follows:
1The defence’s objection to the prosecution leading discreditable conduct evidence is sustained in part;
2The defence application for an order for separate trials is dismissed;
3The evidence of each count is admissible with respect to the other count on the question of what the accused said and did in relation to each woman, but any conclusion of guilt is not admissible in proof of the other count.