R v Barrett (No 3)
[2019] SASC 93
•4 June 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BARRETT (No 3)
[2019] SASC 93
Reasons for the Verdicts of The Honourable Justice Vanstone
4 June 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - CRIMINAL NEGLIGENCE - GENERALLY
Trial by judge alone. Accused charged with two counts of manslaughter – where accused a qualified but unregistered midwife – where accused attended upon mothers during antenatal period and at births – where both babies died soon after birth. Whether accused was acting as a midwife – whether accused was criminally negligent in provision of antenatal care or during the labour of each woman – whether accused's conduct caused the deaths.
Held: as to count 1 – not guilty, as to count 2 – not guilty.
Juries Act 1927 (SA) s 7, referred to.
R v Barrett (No 1) [2019] SASC 91; R v Barrett (No 2) [2019] SASC 92; Wilson v The Queen (1992) 174 CLR 313; Nydam v R [1977] VR 430; Lavender v The Queen (2005) 222 CLR 67; Patel v The Queen (2012) 247 CLR 531; R v Iby (2005) 63 NSWLR 278, considered.
R v BARRETT (No 3)
[2019] SASC 93Criminal: Trial by Judge alone.
VANSTONE J: The accused, Lisa Jane Barrett, elected for trial by judge alone upon two charges of manslaughter. I was satisfied that her election was made in accordance with the rules under the Juries Act 1927 (SA) and that the trial should proceed before a Judge sitting without a jury.
The accused is a qualified midwife. The charges arise from the deaths of two babies who died soon after their planned home births, at which the accused was in attendance.
Preliminary matters
Before the trial proper commenced, the accused made a number of applications. She sought an order that the two counts be tried separately. That application was very much entwined with the prosecution application for rulings that the two counts were cross-admissible and that additional evidence tending to prove discreditable conduct on separate occasions could be led. There were also applications by the defence for the exclusion of other evidence, including evidence of conversations between the accused and others captured by means of intercepted telephone calls. I ruled on those applications on 21 March 2019 and later published reasons for those rulings. (See R v Barrett (No 1) [2019] SASC 91 (discreditable conduct) and R v Barrett (No 2) [2019] SASC 92 (telephone interceptions.). In essence I ruled that while evidence of what the accused said and did in the antenatal period and during the labour of the mothers of the two deceased babies was cross-admissible, quite possibly revealing a pattern, it could only be used in proof of those very matters; and conclusions about the standard of care provided by the accused, or her guilt of either count could not be imported into the consideration of the other count. I also allowed objective evidence of the accused’s ‘philosophy’ about midwives and home birth. However, I excluded evidence of events at another 50 or so home births attended by the accused which the prosecution wished to lead in proof of that philosophy.
There were other applications for exclusion of evidence upon which I did not need to rule as Senior Counsel representing each side was able to resolve them. In addition, particulars and further particulars of the charges were sought and supplied without need of any orders. I am grateful to counsel – Ms S McDonald SC and Ms T Costi for the prosecution, and Mr S Henchliffe QC and Mr B Armstrong for the accused – for their co-operation and their sensible attitude towards promoting the efficiency of the trial.
Background
The Information containing the counts was filed in this Court on 18 June 2018. The first count alleges that between 1 April 2011 and 9 October 2011 at Northgate and other places the accused unlawfully killed Tully Kavanagh. Tully was the child of Ms Sarah Kerr and Mr Matthew Kavanagh. I shall refer to the child as Tully. Tully was born at 2.25 pm on 7 October 2011 in a street off Melbourne Street, North Adelaide. Ms Kerr had already given birth to Tully’s twin sister, who I shall call ‘Gemma’, at home about 70 minutes earlier in the presence of the accused and one Rose Pride. While Gemma’s birth proceeded quickly and smoothly, Tully’s did not follow as hoped. His heart rate in utero was observed by the accused to drop and Ms Kerr was unable to deliver him. At 1.53 pm the accused telephoned the Women’s and Children’s Hospital (W&CH) and advised that Ms Kerr would be brought there. At about 2 pm the accused, Ms Kerr and Mr Kavanagh drove towards the hospital. However, the journey was interrupted so that Tully could be delivered. The accused attempted to resuscitate him during the balance of the trip. When the party arrived at the W&CH Tully was found not to be breathing. He was resuscitated and maintained on life support.
Two days later it was determined that life support should be withdrawn. Tully was taken home to die and did so on 9 October 2011 in the afternoon. The cause of death was found to be hypoxia due to placental abruption.
The second count alleges that between 14 May 2012 and 31 December 2012 at Northfield and other places, the accused unlawfully killed another child, whom I shall call Ryan. The surname of Ryan, his mother and her female partner is suppressed from publication for reasons unconnected to the accused. I shall refer to Ryan’s mother as Ms H and to her partner as Ms Nicole H.
Ryan was conceived by in vitro fertilisation. Previously Ms H had given birth to another child who had been in a breech position. That child was born by planned caesarean section. Ms H had a congenital abnormality of the uterus – an unicornuate uterus – which meant that the space within which a baby could move and grow was much reduced; perhaps by as much as 50 per cent. Ms H was to some extent, but not markedly, obese. These four factors constitute risk factors for a birth. The most significant of them are the previous caesarean and the unicornuate uterus.
Ryan was born on 30 December 2012 at the home of Ms H and her partner. The accused was present at the birth along with Ms Kristin Cheesman, whose role was to take photographs and perhaps help Ms Nicole H, who suffers from multiple sclerosis, with the children. Ryan was born after a protracted period of labour involving a great deal of pain, during which it was discovered that he was in a breech position. It is not entirely clear what time that was ascertained, but certainly it was known by about 3 pm. At 5.22 Ms Cheesman telephoned 000 and asked for an ambulance to attend. The child was born just before the ambulance arrived, at about 5.30. Ryan arrived at the W&CH at about 6.15. He was in an extremely poor state. Later that night he was taken off a ventilator and died. There were several views expressed as to the cause of his death, but I find that he died from cardiac arrest after delivery, caused by total occlusion of the umbilical cord.
The Australian College of Midwives Guidelines and indeed conventional medical opinion did not sanction a home birth in the circumstances of either Ms Kerr or Ms H.
The prosecution accepts that the accused is a well-qualified and experienced midwife, although, at the time of Counts 1 and 2 she was not registered as she had voluntarily resigned her registration. The prosecution alleges that, notwithstanding the accused was unregistered and despite the fact that she chose to refer to herself as a ‘birth advocate’, she was in fact performing the role of midwife both leading up to and at both births. In those circumstances, she owed a duty of care to both Ms Kerr and Ms H and their unborn babies. The prosecution alleges that the accused was grossly negligent in her care for both women. She exposed their unborn babies to such a high risk of death or grievous bodily harm that her conduct warrants the sanction of the criminal law. It is alleged that the accused’s work in the hospital system must have engendered in her a belief that the best form of birth was a home birth, indeed a home birth with minimal intervention, even in the face of certain births being classified as high risk. The prosecution alleges that the accused’s views must have become so strong as to skew her ability to provide accurate and balanced advice about whether the women should give birth at home.
It is put that, had both women been adequately advised of the risk factors associated with the specific circumstances of each, then they would have chosen to give birth in hospital, and each child would have survived. Further it is put that, such was the accused’s philosophy, it must have caused her, during the labour of each woman, to fail, at the critical time, to give the plainly appropriate advice that each woman needed immediately to transfer to hospital for the births. The prosecution alleges that, had such advice been given in a timely manner, then both Tully and Ryan would have survived.
The accused neither gave or called evidence upon her trial. Her case emerges from cross-examination of the prosecution witnesses, and, to some extent, from out of court statements made by her in various arenas.
Prosecution case on Count 1
The prosecution contends that once the accused was engaged to act as the midwife for Ms Kerr’s pregnancy and birth, she was obliged to provide both antenatal care and care during the birthing and postnatal period of the standard of a reasonably competent midwife. This included comprehensive advice about the advantages and disadvantages of a home birth. Once it was known that it would be a twin birth, the advice needed to encompass that situation.
Particulars of the acts and omissions relied upon to prove the charge included the accused’s advice, encouragement and agreement to facilitate the birth of the deceased in a home environment, in circumstances where it was known that the mother was pregnant with twins; conveying to Ms Kerr that it was safe to have a twin birth at home and failing to accurately advise her of the risks associated with giving birth at home, instead positively reinforcing that Ms Kerr’s babies would be born without complication; offering her services and providing antenatal care in the context of a home birth; failing to discuss a plan to transfer to hospital, and actively discouraging Ms Kerr from consulting other health care providers. Further, the prosecution alleges that the accused failed to properly monitor the heart rate and position of Tully during labour, and failed to provide appropriate and timely advice about the dangerousness of the situation and the need to transfer to hospital.
According to Professor Homer, whose evidence I accept, the necessary advice of possible complications extended to twin one presenting other than head first, and for twin two, cord prolapse leading to hypoxia, the mother bleeding due to a degree of placental abruption while awaiting delivery of twin two, malpresentation of twin two, and, subsequent to birth, the possibility of postpartum haemorrhage from either of the placental beds. Professor Homer said because there were two beds, this risk was magnified. The risk of placental abruption, especially for the second twin, needed to be discussed. Professor Pepperell said that he believed the chances of a placental abruption were about one in 100 for a singleton birth and slightly more for a twin birth. Professor Homer suggested the overall rate of abruption was about 1.8 per cent (or one in 55). However, Professor Dekker pointed out that abruption can occur at any stage of a pregnancy. In addition, a degree of abruption might occur without serious ill-effects. He said that the risk of its occurrence increases as time elapses from the birth of twin one and for that reason the aim is to have twin two delivered within 20 to 30 minutes after twin one.
By the time Ms Kerr became pregnant she and the accused were close friends. They spoke at least daily on the telephone and saw each other very often. No doubt there were many conversations touching her pregnancy, some of which have been loosely described in evidence. However, the main conversation concerning risks occurred on what appears to have been 21 June 2011 in the presence of Ms Kerr’s partner, Mr Kavanagh. This was a planned meeting. It was scheduled to allow for Mr Kavanagh’s presence, his work often taking him away from their home. The plan was to have an ‘in-depth appointment’ to discuss the prospect of a home birth. Ms Kerr said it was a ‘lengthy discussion’. Ms Kerr said that on that occasion the accused spoke about the risks presented by a twin pregnancy, including pre-term birth, twin to twin transfusion, cord prolapse, and malpositioning. In all such circumstances the accused said they would transfer to hospital. Ms Kerr denied that the accused listed placental abruption as a risk. Mr Kavanagh gave evidence that on this occasion the accused explained that she needed to go through the risks of having a home birth, as part of the formality of her being engaged as the midwife. He said in cross-examination that he could not recall what those risks were, but he described them as ‘generic risks’. He said that the accused downplayed most of the risks she mentioned. He said it was possible that abruption was also cited as a risk. He also agreed that he had told police in October 2013 that abruption was given as a risk and that, at the time of speaking to the police, he was attempting to be as accurate as he could. As mentioned, the prosecution contends that, had the appropriate advice been given, Ms Kerr would have decided to give birth in hospital and Tully would have been born healthy, probably by caesarean section.
The prosecution contends that such advice about risks as was given was undermined by the accused’s repeated statement to Ms Kerr that, ‘Your babies are just going to fall out’: 696. Reliance is also placed on statements attributed to the accused discouraging Ms Kerr from seeing obstetricians, as she had considered doing.
I do not propose to traverse this evidence in further detail. There are two reasons for that. First, I cannot be satisfied of the terms of the 21 June 2011 conversation, or of any other. The witnesses were attempting to recall a conversation (or conversations) which occurred some eight years ago. The detail, if not whole topics, has necessarily faded from memory. In addition, the recollections are likely to have been coloured by later events. It is noteworthy that when she gave evidence before the Deputy Coroner on 25 October 2011, Ms Kerr was asked about her knowledge, ahead of Gemma’s birth, of the additional risks that a twin pregnancy and births posed. She specifically included placental abruption as such a risk. Before me she said she was not being truthful in the Coroner’s Court. By way of explanation Ms Kerr said that she was in a poor mental state following Tully’s death and was ‘taking responsibility’ for what had happened. Ms Kerr having given the clear evidence she gave in that Court, I find it hard to accept her evidence on the topic in this Court. Moreover, Mr Kavanagh effectively accepted that abruption was listed. In summary, I find there was formal advice given by the accused to Ms Kerr (and Mr Kavanagh) about the principal risks of a home birth. However, I cannot be satisfied of the extent of it, or of its terms, beyond the detail provided by the prosecution witnesses.
The second reason is that, even if the accused’s advice to Ms Kerr were inadequate, I am not satisfied that appropriate advice would have dissuaded her from a home birth. She had powerful reasons to plan a home birth. She had an extremely difficult hospital birth in 2005, which had left her emotionally scarred and determined to give birth in future only at home. She did so in 2007 and 2009 in the presence only of a ‘doula’ (an unqualified birth assistant) and those births were uneventful and successful. In her initial discussions with the accused about this pregnancy, Ms Kerr told her that she did not like people touching her or being around her, and that she did not want vaginal examinations. Ms Kerr said she ‘was seeking a hands-off approach’. Once Ms Kerr knew she was having twins they spoke further about this. The accused told her that she would need to know that twin two was in the pelvis and would need to palpate Ms Kerr’s belly and perhaps feel around the pelvic rim. Ms Kerr indicated to the accused that this would be acceptable. Later, Ms Kerr said she told the accused that she trusted her and that the accused could do whatever was needed on the day. Even so, from the footage of the birth it is apparent that the accused is very hesitant in touching Ms Kerr.
By the time of her pregnancy with the twins Ms Kerr was deeply invested in the home birth community in South Australia. She was president of the ‘Maternity Coalition’, a consumer advocacy organisation she said was formed by midwives, whose members were ‘extremely pro home birth’: 253. She was an active participant on the ‘Joyous Birth’ website, which is a discussion forum for home birth and free birth advocates, on which various stories, articles, and interchanges were posted by many persons, including the accused. She knew that the medical fraternity set its face against home births for twins. She knew such births were considered to be high risk. She was told by doctors at the W&CH of those risks when she was admitted there at about 27 or 28 weeks gestation for an episode of gastroenteritis. Two doctors gave evidence that they spoke to her in no uncertain terms about the risks of a home birth for twins. One of those, Dr Raman, said that Ms Kerr told her she was willing to accept the risks associated with a home birth; even the risk of a baby dying. Ms Kerr denied having said this. However, I find that in response to Dr Raman’s warning Ms Kerr did say words to the effect that she understood the risks of a home birth and was willing to accept them.
Ms Kerr also knew from the accused herself that in July 2011 the second twin delivered at a home birth at which the accused was the principal care-giver had died; and that the cause of death was placental abruption. While I accept that the accused may well have downplayed to Ms Kerr the chances of that and other risks materialising, I do not accept, as Ms Kerr said, that a comprehensive rundown on the risks and consequences, or advice from the accused that it was safer in terms of remedial action to have her babies in hospital, would have persuaded Ms Kerr to give birth in a place other than her home. She may well believe that this would have altered her thinking, but I am not satisfied of it. While I accept that the accused encouraged Ms Kerr to expect easy deliveries, I find this was no more than an expression of support and optimism and it cannot detract from the advice about risks which I find was given. Accordingly, I find no causal connection between the advice that was given (or not given) and the decision to give birth at home.
Much the same applies to the accused’s alleged discouragement of Ms Kerr consulting an obstetrician or having scans or blood tests. Ms Kerr did have a morphology ultrasound early in her pregnancy. That was done against the accused’s advice. It was that scan which established she was having twins. Ms Kerr also had blood tests earlier in the pregnancy, and saw a general practitioner for that purpose. She did so, she said, despite the accused telling her she was ‘stupid’ and that tests would only cause her stress.
While I find that the accused’s general attitude was that it was pointless pregnant women undergoing tests unless the results would change the women’s intentions, or plans, I do not accept that Ms Kerr’s decision to proceed as she did was anything other than her own choice. Even if she had undergone further scans or seen an obstetrician, I find that it would not likely have had an impact on her decision to give birth at home.
I turn then to the other aspect of the prosecution case on Count 1, the accused’s failure to appropriately monitor the heart rate and position of the second twin and her failure to advise, at an appropriate time, that the situation was dangerous and that Ms Kerr should go to hospital as a matter of urgency.
Ms Kerr said she realised she was going into labour at about 10 am on the morning of 7 October 2011. Ms Rose Pride attended at about 11 am. Though a qualified midwife, her role was to film the event or take photographs and assist with the other children, who were then aged between two and seven years. Ms Pride was a friend of both the accused and Ms Kerr, though perhaps closer to the accused. She did not give evidence at the trial. It is not suggested that I should draw any inference from her absence. The accused arrived soon after midday. She went to see Ms Kerr in the main bedroom and Ms Kerr told her she would be ‘needing some space’. The accused then left her in peace. About 15 minutes later Ms Kerr went into the birthing pool.
Soon thereafter Ms Pride commenced recording audio/visual footage of the proceedings. A disk made from that recording, with enhanced audio, is Exhibit P1. The prosecution provided a transcript of what it suggested could be heard on P1: MFI P1A. The defence also provided a transcript of what it suggested could be heard: MFI D60. The latter was used to cross-examine Ms Kerr and other witnesses. The duration of P1 is about 47 minutes. Late in the trial the prosecution provided a document (P94) which set out ‘real time’ against the counter numbers from the disk. Real time was fixed by reference to the time when the first twin, Gemma, was born, being 1.13 pm. While the times might not be accurate to the minute, the relativities are the most important aspect. Although the expert witnesses gave evidence in terms of the counter readings, I have converted that to ‘real time’. The video commenced at 1.04 pm. The audio quality is very poor. Hearing the words spoken by the accused and Ms Kerr is impeded by loud, metallic and somewhat invasive background music, the comings and goings of the Kerr-Kavanagh children and their interjections and conversations with their father. It is difficult, if not impossible, to hear the accused’s words. All in all, even with the assistance of a transcript, I can hear very little of what was said.
Professor Emeritus Roger James Pepperell is a specialist obstetrician and gynaecologist, and physician. His clinical experience is extensive. He has held high level teaching appointments and has published widely.
He listened to P1 and expressed opinions as to what was occurring and what should have been occurring. From time to time Professor Pepperell (like the other experts) was able to discern the heart rate of twin two by means of the ‘Doppler’ device which the accused was seen to use to listen to the unborn twin’s heart. The witnesses were not always able to determine the rate accurately. Sometimes their opinions were in conflict. All agreed that the normal range was 110 to 160 beats per minute (bpm). If the mother were experiencing a contraction when the reading was taken, that could give rise to a lower reading, in which case the operator needed to keep listening until the contraction passed.
I now describe the key observations of P1 made by Professor Pepperell. The first Doppler reading taken by the accused after Gemma’s birth is within two minutes of her birth. Professor Pepperell hears it as 120 bpm. The accused is seen to use the Doppler again very shortly after that, but the rate is not available.
At 1.16 pm Professor Pepperell hears a heart beat of 120 to 130. At 1.18 one of the children comments on a spurt of blood emitting from Ms Kerr’s vagina. She is still in the birthing pool at this time.
At 1.20 the accused is seen to take Doppler readings which Professor Pepperell hears as 100 to 105 bpm. While he said that could be low due to normal deceleration consequent upon a contraction, it was necessary to keep listening to see if it improved. In cross-examination Professor Pepperell agreed that in his earlier report he had estimated the rate at this point to be 120 bpm. He said he had listened again since then, but to the enhanced recording, and altered his opinion on that basis. However he conceded it could have been 120 bpm. At 1.21 the Professor hears the heart rate as about 100 bpm; still too low. Speaking as an obstetrician, the witness said it was then appropriate to undertake a pelvic examination, and, if the membranes were presenting, to rupture the membranes. If the midwife was not familiar with that procedure, or confident to do it, there could have been a transfer to hospital. However that would carry risks too. Even if the head was not presenting, rupturing the membranes would probably cause it to descend rapidly, especially in a woman with several previous vaginal births. Professor Pepperell said that action of some sort needed to be taken at this point.
At 1.23 Ms Kerr left the birthing pool.
At 1.31 Professor Pepperell hears a heart rate of 70 bpm. In cross-examination he acknowledged it might have been 80 bpm. He said that by now the baby was obviously in real distress and delivery needed to be expedited.
The next heart rate is heard by Professor Pepperell at 1.42 and being about 70 bpm. He said that by this time there had potentially been 20 minutes of low heart rate and the baby was likely to be ‘profoundly hypoxic’. The rate of about 60 bpm at 1.49 is also indicative, or confirmatory of ‘severe hypoxia’. The recording ceased at 1.51 pm.
I digress to say that the call to the W&CH was made by the accused at 1.53 pm. She made that call on her mobile telephone from the grounds of the house while having a cigarette. At about 2 pm the party left the house in Mr Kavanagh’s car. At perhaps 2.20 Ms Kerr’s membranes ruptured. Mr Kavanagh pulled into a side street. Ms Kerr delivered a cord. The accused said, ‘It’s a cord prolapse’. Then, in the front seat of the car, Ms Kerr pushed and the placenta fell on the seat and Tully ‘tumbled out on top of it’: 408. The accused commenced resuscitation. At about 2.30 the party arrived at the W&CH.
In cross-examination Professor Pepperell said, as a general proposition, that, in the period after the first twin is born, if a heart rate below 100 bpm is heard, and 5 minutes later it is still under 100 bpm, then he ‘would expect action to be taken’: 1700.
Professor Pepperell said that in instances of bleeding due to placental abruption, the blood may be retained in the vagina for some time. In cases of complete placental abruption a baby would probably be dead if not delivered within 10 minutes. Where there was less than complete separation (though, I interpolate, a substantial separation) an extra 5 or 10 minutes might be available. Given the history of falling heart rate and the manner of Tully’s birth immediately after the placenta, Professor Pepperell expressed the opinion that it was likely that by 1.21 the placental abruption had already occurred.
Professor Dekker is a highly qualified obstetrician who has many years of clinical experience at major public hospitals, much of it in ‘high risk obstetrics’. He is also the academic head of the Department of Obstetrics and Gynaecology at the University of Adelaide. His evidence was impressive, although, as with all three experts, his opinions as to the birth of Tully rest largely on his assessment of the sounds on Exhibit P1.
He viewed P1 some four times and created (or perhaps modified) a document which collects what he saw as the key recorded events after Gemma’s birth. Critical features of his evidence are gathered below.
By 1.21 pm at least two, and possibly three abnormally low foetal heart rates have been heard. Those are about 80 bpm and about 70 bpm. This is indicative of serious problems. This is the ‘very, very, very last warning to quickly rush to hospital’: 1859.
At 1.24 Ms Kerr leaves the birth pool and at 1.25 the accused appears to ‘feel the uterine tone’, that is, to feel for contractions. That is appropriate, in itself.
At about 1.26 a heart rate of about 60 to 65 bpm is heard. By then, the combined effects of the last four foetal heart rates (which are consistent) suggest the baby is in a state of brachycardia (slowing heart beat) and is probably facing a life-threatening situation. Professor Dekker said that, had this train of events occurred in hospital, there should have been a quick vaginal examination and, if a vaginal birth were not possible, an emergency caesarean section.
At 1.31 blood on Ms Kerr’s inner legs is visible. The combination of the low heart rates and the blood raises a high probability of ‘intrapartum abruption’. Ten minutes later, at 1.41, when Ms Kerr moves into position for a vaginal examination, a large patch of blood is apparent where she had been sitting.
At 1.33 the heart rate, though indistinct, is heard to be about 5 bpm. This is indicative of persistent brachycardia, where the baseline continues to drop slowly until the baby dies.
In cross-examination Professor Dekker was asked if he might be wrong about some of the low heart rates he heard. While he conceded the difficulties, he maintained that the heart rate heard leading up to 1.20 was ‘in the 80 range’ and with respect to the second one later in that minute, he could not make out any signal at defence counsel’s suggested higher rate of 120. He conceded that in his written report he had given the rate at 1.22 as 100 bpm.
Professor Dekker said a drop in heart rate that persists for more than 5 minutes is ‘quite threatening’ for the baby.
The witness was asked in examination-in-chief for his opinion on whether at some point in this period it would have been appropriate for a midwife to undertake an artificial rupture of the membranes, in an effort to hasten the birth. He said this procedure should be performed in a safe and controlled environment. Here, it was a difficult question, bearing in mind that this sequence of events was outside his experience, ‘almost like an hypothetical’. He said that if the midwife were convinced that the birth was imminent it would have been appropriate. However the footage and sequel showed that was not the case. In cross-examination he said that in a home birth setting, without adequate staff, that would not be a wise thing to do.
Professor Caroline Homer is the Co-Program Director, Maternal and Child Health and Working Group Head and National Health and Medical Research Council Principal, and Research Fellow at the Burnet Institute in Melbourne. She also has an appointment at the University of Technology, Sydney as Professor of Midwifery.
While Professor Homer has limited experience of home births, I accept that she is a highly qualified midwife and, as well, exceptionally well placed to speak of best practice in midwifery.
Like the other experts, Professor Homer watched and listened to P1 and completed her own diary of observations. After Gemma’s birth Professor Homer noted several heart rates, most of which were within the normal range. At 1.18 pm the blood spurt from Ms Kerr in the pool is noted. That is said to be not uncommon. At about 1.19 the accused drops the Doppler in the water. The next heart rate heard is at 1.20 and is about 100 bpm. At 1.21 the witness describes hearing a ‘longer and clearer’ piece of audio which reveals a rate of 92 bpm. This is described as ‘concerning’. At this stage Ms Kerr was still in the pool. Professor Homer said that in the face of this rate it was important to get Ms Kerr out of the pool and to do a proper assessment of her to determine the lie of the baby. If it were transverse it might require manual manipulation to get it into a longitudinal position. The accused was not observed to do that. At 1.24 Ms Kerr leaves the pool. By then twin two is not recovering quickly, there is uncertainty about his presentation and Ms Kerr does not appear to be in strong labour. This was probably the time to consider transfer to hospital.
At about 1.26 a further rate is discerned, although over a short span. It is about 80 bpm. Again it is ‘heading in the wrong direction’: 1505. That it has stayed below the normal rate is an indicator that the baby is not getting sufficient oxygen. The situation is urgent. A midwife would need to attempt to identify the problem, and perhaps do a vaginal examination, or obtain help by telephone (including advice as to what to do to address the situation) or think about transfer to hospital. If a transfer were to take place it should occur at this point, at the latest. It appears that the accused makes several more attempts to hear the heart before Professor Homer hears the rate at 1.31 as 48 to 60 bpm. She describes the baby’s condition now as ‘acute and dire’: 1510. As a start, an ambulance should be called. Some attempt should be made to change the woman’s position, or manually move the baby from within the vagina in an attempt to take pressure off the cord, in case that is the problem. Unless the woman is having contractions and the baby is in the pelvis, simply pushing – even very hard – will not deliver the baby. At 1.32 Ms Kerr is seen to be bleeding from the vagina. Vaginal bleeding and a low foetal heart rate are signs that can point to placental abruption. At 1.42 Professor Homer hears a heart rate of 72 bpm.
Professor Homer said that the evidence suggests that twin two should be born within 30 minutes of twin one. If the foetal heart beat is within the normal range and there is no bleeding a little leeway may be given to allow contractions to recommence. Longer than 30 minutes entails an increasing risk of hypoxia.
The evidence of the three experts is fairly consistent. I accept the evidence of all three expert witnesses. I have been much assisted by each one.
All three identified 1.21 pm as a critical time when the low heart rate needed to be addressed. The two obstetricians would require immediate action at this point. Professor Homer said the nature of the problem and the position of the baby needed to be identified. By 1.24 she described the situation as urgent. At 1.31 Professor Homer sees the position as acute and dire. On Professor Pepperell’s evidence it is likely that the abruption has already occurred at 1.21.
It is interesting to note that in a covertly recorded conversation (P5) between the accused and Ms Kerr, which took place on 4 June 2014, the accused made reference to being nervous about the situation even at the time she dropped the Doppler into the birth pool. That occurred at 1.19 pm. Those nerves were clearly related to the abnormally low heart rate of twin two. This tends to demonstrate that the accused was aware of the unsatisfactory state of affairs even before the critical times identified by the three expert witnesses.
Ms Kerr said that at no stage during her labour did the accused convey any sense of urgency in relation to Tully’s birth. Ms Kerr said she simply did not understand the seriousness of the situation. The leisurely way in which the trip to hospital was approached by Ms Kerr and Mr Kavanagh tends to bear that out. Ms Kerr denied that the accused suggested going to hospital earlier in the sequence of events. She said – and I accept – that, had such advice been given in clear terms during the labour, she would have acted on it.
In June 2014 police organised for Ms Kerr to carry a listening device when she met with the accused at a coffee shop. This was the first occasion for many months in which the two women had met. The relationship broke down at some stage after Ms Kerr gave evidence to the Deputy Coroner. On this occasion the two women spoke at some length about what had happened during the labour and subsequently. During that conversation the accused apologised to Ms Kerr for not advising a hospital transfer earlier. She said:
“…I’m sorry I didn’t make you go to the hospital earlier, that would have been the right thing, I’m sorry that I didn’t do that.”
The accused had another covertly recorded conversation this time with the witness Ms Hannah Rice. Ms Rice had worked with the accused in 2010 and 2011 as an informal apprentice and had been a friend of both the accused and Ms Kerr. The accused said this:
“She did a VE [vaginal examination] because I couldn’t do VE and then I did a VE afterwards. And that is how it was. You’ve seen the video, that is what happened and we went to the hospital. Could we have gone earlier, it’s quite possible, when I got her out of the water I should have said, “Go to the hospital”, but I didn’t do that and I can’t go back and do it now.”
It will be remembered that Ms Kerr left the birth pool at 1.23 pm. These statements tend to show a realisation in the accused that she should have been clearer and more forceful in her advice.
Furthermore, the prosecution relies on statements of the accused made to several witnesses which it suggests show a consciousness of guilt in the accused in relation to her conduct during Ms Kerr’s labour. Ms Kerr said that when the party was on the way to the hospital and before Tully was delivered, the accused told her that, when they arrived at the hospital, she should not mention the foetal heart rates. She said they were not important. Then, soon after their arrival at the W&CH when the accused was speaking with the midwife manager, Ms Coffey, Ms Kerr heard the accused tell Ms Coffey that her blood loss had been about 200 ml. In Ms Kerr’s view she had lost far more blood than that.
It was to Ms Coffey that the accused spoke by telephone not long before the party left home for the W&CH. The accused gave Ms Coffey a history. Ms Coffey’s evidence was that she asked the accused whether the foetal heart was okay. In the notes that she made soon afterwards she wrote down ‘foetal HB’ with a tick. She said, had she been told the foetal heart rate was 80 or 60, she would have written down the figure. Plainly, either rate would have been alarming to her. Ms Coffey was closely cross-examined about this conversation. She agreed she had told the Deputy Coroner that what she had asked was whether there was a foetal heart rate, and it was the accused’s assent to that question that she had recorded with a tick. Notwithstanding that previous inconsistent statement, Ms Coffey expressed herself as confident that she had been told that the foetal heart rate was unexceptional. She put her previous inaccuracy down to inexperience as a witness. I accept Ms Coffey’s evidence on this point and generally.
While I find that the accused was not frank in her conversation with Ms Coffey about Tully’s heart beat, I find no causal link between her withholding information and the treatment of Tully at the W&CH.
Ms Kerr said that on numerous occasions from the time of Tully’s death the accused told her that the police would want statements from her and her husband. The accused told her they need not answer police questions or give statements. She said that the accused warned her that if she were to let one police officer into her house, that officer would represent the entire police force. For that reason they should not be admitted. Later the accused wanted to know from her what she had told the police and the accused seemed displeased.
In relation to the evidence in she gave the Coroner’s Court later in October 2011, Ms Kerr said the accused told her she had to take responsibility for Tully’s death, otherwise she, the accused, would have to ‘get up there and tell everyone you refused to transfer’. The accused also told her that in Court she should not mention Tully’s heart rates. Ms Kerr also said that the accused told her that, in speaking to a counsellor, she should be very careful in what she said, as the Deputy Coroner could obtain the counsellor’s notes.
On the day when Ms Kerr and her party arrived at the emergency section of the W&CH, Ms Rice happened to be there. Ms Rice said that she and the accused had a conversation about what had happened in relation to Tully’s birth. Ms Rice said the accused told her that within 10 minutes of detecting that Tully had a low heart rate the party had left for the hospital. If that was said, it was clearly not correct. I find that it was said.
Prosecution case on Count 2
The outline of the case provided by the prosecution in the opening address, together with the particulars, alleged that the acts and omissions of the accused relied upon to prove the charge were the accused’s advice, encouragement and agreement to facilitate the birth of the deceased in a home environment, in circumstances where it was known that the mother had an unicornuate uterus and medical history that would affect the likelihood of her safely delivering her child at home. The further particularised allegations include that the accused conveyed to Ms H that it was safe to give birth at home in the face of Ms H’s history and conditions and failed to warn her of the risks associated with her giving birth at home; that she offered her services and provided antenatal care in those circumstances, that she failed to discuss a plan to transfer to hospital and failed to advise Ms H to undergo an ultrasound scan to ascertain the position of the foetus, which should have been done at 34 weeks gestation. Further, the prosecution alleged that the accused’s failure to arrange for an immediate transfer to hospital once it was known that the foetus was in a breech position and failure to provide appropriate and timely advice about the dangerousness of the situation were, in combination, the substantial cause of death of Ryan.
At the time of Ryan’s birth Ms H was about 35 years of age. Earlier I listed the particular risk factors associated with her giving birth vaginally. The two most important were that she had previously given birth by caesarean section to a child who had been in a breech position and that she had an unicornuate uterus. Evidence before me satisfied me that Ms H’s pregnancy being an IVF pregnancy meant that, for that reason too, it was regarded as high risk. Professor Dekker said this was so due to the many ‘confounders that go with these patients’ (1839) and, in addition, there is a high risk of congenital abnormality. There was also said to be a high risk of pre-term delivery for such patients.
In relation to the unicornuate uterus Professor Pepperell said that the risks at labour arise first, because there is less room for the baby to move and therefore an increased likelihood that it will be in the wrong position. If it is in the wrong position then it is difficult to correct it by way of external version. Given that Ms H had previously given birth to a breech baby, it was more likely that the next one would be breech as well, especially given the shape of her uterus. Second, women with an unicornuate uterus have a greater risk of placental growth abnormalities – how it implants in the uterus – and of spontaneous placental abruption. The reduced size of the uterus also means that the foetus has less room in which to grow. Associated with this congenital abnormality was the fact that Ms H only had one kidney. According to Professor Homer, this should have led to additional monitoring of renal function throughout the pregnancy.
All three experts expressed the view that the foremost risk for Ms H was one of uterine rupture, where the previous caesarean scar tears during birth. This would lead to a catastrophic haemorrhage with an associated high rate of morbidity and mortality. Professor Dekker said that Ms H having an unicornuate uterus rendered the risk of rupture even higher.
The particular danger with a breech birth was described by Professor Homer as cord compression. There is always a degree of cord compression during a breech birth. While there are three breech positions, in each the head is the last part of the body to be delivered. Once the legs and buttocks are delivered the risk of cord compression is acute, because the visible cord is still attached to the placenta.
In 2007 Ms H underwent IVF treatment through the organisation called Repromed. Her previous child was also conceived through IVF and she had dealt with Dr Tremellen, an obstetrician and gynecologist specialising in fertility treatment. Dr Tremellen gave evidence that he advised Ms H on the earlier occasion of the risks to which the condition of her uterus gave rise, principally premature birth. During her first pregnancy she had antenatal care through the W&CH. She requested obstetric care because she was concerned about the risks to which she had been alerted. During that period she had an examination to check her cervix. She found it to be extremely painful. The doctor involved did not cease the examination when she complained and she later made a formal complaint about his conduct. From that time she saw a different doctor at the W&CH. Generally speaking she found the care she received there to be impersonal and felt that she did not receive adequate answers to the questions she asked. During that pregnancy she had various scans as directed and standard blood tests. Towards the end of her pregnancy she was told that the foetus was in a breech position and she would be having a caesarean section. Overall, the experience left her disinclined to have another hospital birth. In addition, she found the ultrasound scans that she had to be extremely stressful, as she was terrified something would be wrong.
In early 2012 Ms H arranged through Repromed to have one of the remaining embryos implanted. In this period Dr Tremellen advised her, that since the last pregnancy involved a breech presentation and caesarean section, there was an increased risk of that recurring.
Once pregnant with Ryan she began to consider a home birth and to that end read a lot about home births and spoke to acquaintances who had had them. She began to make enquiries about the availability of midwives and eventually spoke to the accused. Ms H said people spoke highly of the accused and the accused’s website contained many birth stories, videos, photographs as well as information about birth related topics. She was led to believe that a breech vaginal birth at home was a ‘variation of normal’ and would be safe and successful. In cross-examination Ms H agreed that the wish to avoid a repetition of the trauma she had suffered in hospital was part of the reason for planning a home birth.
Ms H said she knew that the accused had given up her registration as a midwife. She was not sure where she learned that but said that other people were talking about it. Her understanding was that it was given up for ‘political reasons’. She did not believe that the accused not being registered would change her skill level or competency.
Ms H was also aware of Coroner’s Court proceedings involving the accused. She said she was vaguely aware of them. She had heard, though, that ‘it was an unfair witch-hunt’: 844, that the accused had not done anything wrong and that the parents involved supported the accused.
The first meeting between Ms H and her partner and the accused took place on 14 May 2012. Either at that meeting or during the regular antenatal appointments that followed, Ms H would have told the accused of her history and of her congenital abnormality. Ms H said that there was also a meeting at premises known as the Birth Place on 19 October, involving Ms H, her partner, the accused and Ms Cheesman. Ms H said that at no time prior to that meeting had the accused explained what risks were associated with a home birth having regard to Ms H’s particular circumstances, nor did she raise any benefits of having a hospital birth. Ms H said the accused did not advise her of the likelihood of breech birth given her history, or about the risks associated with having a breech birth at home. She said that the accused did not advise her to have scans to determine the lie of the baby. She said that, had she been advised to have scans or other tests, she would have complied. She acknowledged that she declined to have a scan at eight weeks offered by a nurse at Repromed.
Ms H said that from about 28 weeks gestation onwards the accused would say to her that the baby was head down. She would add that she could be wrong, but this was said in a ‘jovial’ fashion. Ms H did not believe this was a serious comment. The accused told her that she had never had an unexpected breech delivery, except for one occasion where the mother had not wanted to have the baby ‘felt’. Ms H said that at no stage was she averse to changing her plans and having a hospital birth. Had the accused told her it was necessary she would have accepted that advice. They spoke of the possibility of a need to transfer during labour and the accused told her of another client who had done so. From that she took that the accused was open to the possibility of transferring to hospital.
As to the meeting at the Birth Place on 19 October, Ms H said it was organised by Ms Cheesman. She said the purpose of the meeting was to discuss what sort of assistance Ms Cheesman could provide during the labour and how to manage Ms Nicole H’s particular needs in the event that there was a long labour or a transfer to hospital. Ms H said there was no discussion about who would determine the point at which a transfer should take place, although she believed that was the accused’s role. She said there was no conversation at this meeting about what might happen if the baby were in a breech position. She said the conversation was of a casual nature.
In cross-examination Ms H agreed that on 4 November she wrote a post on the Joyous Birth website about her pregnancy saying, ‘This time appears to probably be vertex’. Ms H denied that the element of doubt was consistent with what the accused had told her. She accepted that she had written a post before her second pregnancy saying that she would not fit the criteria for a home birth in the public system, because of her ‘unicornuate uterus, prior section for breech and pretty high chance of breech baby again’: 895. Ms H denied that prior to her labour she was aware of the risks associated with a breech birth.
The evidence given by Ms H about the lack of information from the accused about the risk of a breech birth can be contrasted with the evidence of Ms Cheesman. Ms Cheesman is a qualified nurse and a good friend of both Ms H and Ms Nicole H. Ms H selected her to be present at the birth. Ms Cheesman also knew the accused. She had attended some home births with her. She described her as ‘an expert in breech birth’. She said the accused was well known for this in the home birth community. Ms Cheesman gave evidence that a conversation between herself and the accused led to the accused and Ms H organising the meeting. She said the meeting lasted about an hour. The accused took the lead. Among the topics covered were the practicalities of what would occur if Ms H needed to go to hospital during the labour. The particular concerns were Ms Nicole H’s condition and looking after the children. Ms Cheesman said that the accused stated that if it were a breech presentation, then she would not want to stay home for too long. She said breech births were ‘risky’. Ms Cheesman was not able, in evidence-in-chief, to describe more of the conversation. However, during cross-examination she agreed that the accused has said that it was important that a breech birth happen quickly, that there were risks associated with it, and that such risks could exist because of the breech position itself, or because there was something not quite right with the baby or the pregnancy.
It is apparent that Ms H knew well that her proposal to have Ryan born at home would not be viewed favourably by Repromed. Ms H agreed that she did not want to ‘red flag’ herself to the fertility clinic because she knew that home births were not accepted as the norm. She was not prepared to have the scans recommended by Repromed at eight and 12 weeks and she dissembled to a Repromed nurse who wished to know the name of her obstetrician. When Ms H saw Dr Tremellen again in 2012 once her pregnancy was confirmed, she did not tell him that she planned a home birth. In his evidence he said he was sure that he would have told her that, due to her having previously had a breech birth, there was an increased risk of this occurring again. He said had she mentioned that she planned a home birth he would have counselled her against it.
The prosecution relies on the accused’s failure to establish the position of the baby and failure to advise Ms H to have an ultrasound scan for that purpose. However it is not apparent to me that anything turns on this suggested failure. Ms H did not say in examination-in-chief that, had she known in advance that the baby was in the breech position, she would have had a hospital birth. In cross-examination she said so, but was contradicted by evidence of a prior statement. It was an agreed fact that Ms H told police in an interview on the night of Ryan’s birth that, had she known in advance that it would be a breech birth, she would still have had a home birth. But the whole tenor of Ms H’s evidence was that she believed that any problem could be addressed by a transfer to hospital, not that she was only prepared to have a home birth if the baby were not in a breech position. Had that factor been critical, one would think she would have had an ultrasound scan, even if loathe to do so. I find that Ms H was ‘well aware’ that if, during the birth, there were complications, she could not have surgery at home. Ms H said that she did not appreciate that the delay in getting to hospital would be of any moment. I find it hard to accept that evidence. That time is of the essence when a baby is being born is reflected in the fact that, when a birth takes place in hospital, a theatre will be immediately available to accommodate an emergency. In addition, it is plain that, at home, the equipment which might alert an attendant to difficulties is not available.
Ms Nicole H also gave evidence. Although she was present for some parts of some of the antenatal discussions and was certainly present at the meeting at the Birth Place, her recollection of what was said by the accused in terms of the applicable risks was very non-specific. I do not find that Ms H derives any particular support from Ms Nicole H. I do not place reliance on any of her evidence.
Ms H’s evidence denying that the accused warned her of the risks associated with a breech birth is directly contradicted by Ms Cheesman’s evidence of the meeting at the Birth Place. I was impressed by Ms Cheesman’s evidence, both as to the manner in which she gave it and in terms of her demeanour. She was clearly a careful witness who took seriously the task of giving evidence. Indeed, as will be seen, in giving evidence about the labour itself, she had the benefit of extensive notes she was diligent enough to make within a relatively short period of the events. In the face of Ms Cheesman’s evidence I cannot accept that Ms H was not told by the accused of the various risks associated with her pregnancy. Plainly she was told at least as much as Ms Cheesman was able to relate, although even then, Ms Cheesman had a limited recollection of the detail of a meeting which she said lasted about an hour. I am unable to accept that Ms H was not told of the various risk factors which applied to her on other occasions when her pregnancy was under discussion. It is inconceivable that the references made by the accused at the Birth Place to the need for a breech birth to take place quickly and the possibility of requiring a transfer to hospital because of it were the first and last mention by the accused of these matters.
In those circumstances, as with Count 1, I am not in a position to make a finding that, had Ms H been adequately warned by the accused of the risks involved in proceeding by way of a home birth, she would not have had one.
Again, the other relevant matter is Ms H’s attitude to home birth formed even before she had any contact with the accused. Because of her previous unpleasant experience in the W&CH and her fear of ultrasounds, it suited her to proceed down the home birth path. She read extensively on the topic of home births and her internet searches reveal reference to unicornuate uterus, breech birth and vaginal birth after caesarean. She was prepared to brush aside the knowledge that the accused was an unregistered midwife and brush aside the fact that she was under investigation in the Coroner’s Court. In the circumstances I would not be able to find that even comprehensive advice given to her by the accused about the risks for her of a home birth would have dissuaded her from it. On the contrary, I am persuaded that, had the accused told her that, due to the risks involved she would not be prepared to act as her ‘birth advocate’, Ms H would have simply looked elsewhere. Accordingly, I can find no causal connection between the standard of antenatal care given by the accused to Ms H and the death of Ryan.
Ms H said she began to experience contractions at about 3 am on 30 December. She contacted the accused several hours later. The accused arrived at the house at perhaps 8 am. Ms Cheesman arrived later. Ms H said she was just ‘coping with the pain’. It was taking all her attention. Ms Cheesman filled the birthing pool. It had been planned that Ms Cheesman would take a video of the birth but, in the event, she took only still photographs. Those were tendered Exhibit P8. Each bears a time, which, because the time in the camera was shown to have been fast, has been adjusted to reflect real-time. The first photograph, taken at 11.02 am, shows Ms H in the birthing pool. The second, at 11.21, shows her in a different position, but clad as before. By the time of the third photograph, 1.40 pm, Ms H appears to be naked. The next photograph, at 3.03, shows her out of the pool, on her knees and resting her upper body on a chair. Here the accused is shown apparently examining Ms H’s vagina from behind with a torch. Ms H’s memory of events and their sequence was, understandably, lacking in precision. She said that at some stage, having been in a lot of pain, she suggested that the accused undertake a vaginal examination to see what was happening. She was unclear where in the sequence of events this took place. However in cross-examination she said that it was after the vaginal examination that she and Ms Nicole H advised the accused that they had decided to stay home: 973.
The vaginal examination took place in the bedroom. Ms H said that after it, the accused told her that she felt toes. She told Ms H she was 8 cm dilated. Ms H said that in the face of this knowledge the accused did not raise any concerns, or give any other information, or make any recommendations. Ms H said that, even before this, she had raised the possibility of going to hospital because of the degree of pain she was experiencing. She said that the accused responded that Ms H and Ms Nicole H should discuss that in private. The next recollection of Ms H was being back in the pool, still in pain, but then feeling the need to push. At that point the accused told Ms H to get out of the pool, which she did. She began kneeling and, for what felt like an extraordinarily long time, tried to push the baby out. She felt the baby’s buttocks come out and Ms Nicole H told her it was a boy. Despite her best efforts she could not get the rest of the baby out. She told the accused words to the effect, ‘Just pull it out.’ She wanted it over. She said at some stage the accused attempted to physically assist the birth. She did not know what the accused did, but it ‘felt as though she was tearing me apart’: 871. Once the baby was delivered, she said the seriousness of the situation did not dawn on her, although the accused and Ms Cheesman were resuscitating him. She was ‘in a daze’.
Ms Cheesman said she arrived at the house soon after 10.30 am. Despite Ms Cheesman’s qualifications, her role was to take photographs, provide general support to Ms H and, if need be, help with Ms Nicole H and the children. When she arrived Ms H was in the birth pool and the accused was with her. The accused told her that Ms H’s pulse was a little fast, but all was going well. The accused said she believed that the baby was head down. Ms H was very uncomfortable, moaning and crying with pain. Ms Cheesman said that between photographs 2 and 3 (at 11.21 am and 1.40 pm) Ms H had left the pool and gone to the toilet. While she sat on the toilet the accused was squatting on the floor next to her and talking with her. Ms Cheesman said she heard some of the conversation. She said it concerned clarifying with Ms H whether or not Ms H still wanted to stay at home. She heard the accused say to Ms H, ‘Are you sure you want to stay home? Home birth is hard’: 1003. At that time Ms Cheesman thought Ms H’s pain level appeared to be extreme. She said Ms H and the accused were in that position for about half an hour.
Ms Cheesman was not sure whether Ms H then went back to the pool or had the vaginal examination. That took place with the accused initially wearing a glove, but then removing it, saying she needed to feel without the glove. She announced that she could feel toes. Ms Cheesman said that this led to a discussion about whether or not that changed Ms H’s view about how the birth was to proceed. She said that Ms H wanted to go to hospital because of the pain. The accused said that Ms H and Ms Nicole H should discuss this. Ms Nicole H asked the accused whether, if they were to go to hospital, it would be for a caesarean. The accused responded that, yes, that would be the case, because the hospital would not accommodate a breech vaginal birth. There was also conversation about whether a bag had been packed in readiness, which it had not. Ms Cheesman and the accused left the room. To that point, and indeed throughout, the accused did not convey any sense of urgency, or advise one course as opposed to another. Ms Cheesman said the ascertainment that it was a breech birth did not change the tone of the conversation, because the anticipation had always been that there might be a breech birth. That was always ‘on the cards’.
The following passage in Ms Cheesman’s cross-examination at 1043-4 is instructive:
Q.I suggest that Lisa then told [Ms H] that with a breech she had to be one hundred per cent sure that she wanted to stay home.
A.Yes.
Q.And I suggest that Lisa said 'She has to be one hundred per cent sure she wants to stay home because a breech baby needs to happen quickly in the birthing stage'.
A.Well my handwritten notes say 'pushy stage', but yeah.
Q.Well apart from the difference with the pushing or the birthing stage, do you agree with the rest of what I have put.
A.Yes, I do.
Q.That Lisa said that.
A.Yes.
Q.Do you agree that Lisa also said that there was a high risk of complications.
A.Yes.
Q.And that was referring to the fact that it was a breech, wasn't it.
A.Yes.
Q.And Lisa then said to [Ms H] that she had to be absolutely sure as it was her decision.
A.Yes.
Q.Did you say anything to [Ms H] about the news or the discovery that the baby was breech.
A.Yes, I asked her how she was feeling about it.
Q.Did she give you any response, that you can recall.
A.I don't recall.
Q.Did [Ms H] then say 'As long as she was okay and the baby was okay she wanted to stay home'.
A.Yes, that what is she said, yeah.
Q.That, you agree, was after it had been discovered that the baby is in a breech position.
Ms Cheesman’s next recollection was that the packing of a bag was abandoned and that Ms H got back into the pool. She thought it was about 3 pm when Ms H got out of the pool, that being linked to Ms H feeling as if she could start pushing. While Ms Cheesman said in evidence-in-chief that she believed the vaginal examination took place between photographs two and three, in cross-examination she conceded that it might have been between photographs three and four. Therefore it could have been as late as 3.03 pm.
In cross-examination Ms Cheesman agreed (referring to her notes) that, while Ms H was sitting on the toilet with the accused on the floor next to her, she heard the accused say to Ms H, ‘that she had the option of going to hospital but at that time both she and the baby were fine’. Ms Cheesman also agreed that later, when Ms H and her partner had their brief, semi-private conversation, she heard Ms Nicole H say to Ms H, ‘that if she transferred for a caesarean she might always regret it.’: 1038.
Ms Cheesman said that, while the accused had used the Doppler infrequently earlier on, its use became more frequent when Ms H started pushing. More than once the accused said, having used the Doppler, that everything was fine.
At about 4.30 pm when photograph 33 and a number of additional photographs were taken, the scrotum of the baby was presenting and appeared to be full of fluid. The accused said that this was due to a lot of pressure. This was the first time she expressed concern. She said that if Ms H were to go to hospital now with the baby in that position they might be able to do something to assist, but they would not want to go to hospital when the baby was half born, because that would present large risks. There was discussion about whether any transfer to hospital should be by private car or ambulance. At about that time the rest of the baby started to be born and the conversation died away. At 4.56 (photograph 42) the accused is seen putting some pressure on Ms H’s sacrum. When the umbilical cord appeared it was white and did not appear to have a pulse. That was when Ms Cheesman called 000.
The last photograph, number 43, was taken at 5.18 pm. The legs and buttocks of the baby are seen but the chest and head remain within Ms H. The call to 000 was made at 5.22 pm and the baby was delivered during that call. Once delivered, the baby looked very floppy and in very poor condition.
When the ambulance arrived at 5.31 Ryan was seen to be not breathing spontaneously and had a heart rate of 20 bpm, said to be exceptionally low for a new born child. Within one minute his heart stopped. He was flaccid and lifeless and was assessed as having an APGAR score of 0.
The paramedics asked the accused and Ms Cheesman to continue resuscitation attempts on Ryan and eventually he was taken to the W&CH, arriving at 6.14 pm. There was an issue about the ventilation provided during transit, but, as will be seen, nothing turns on that evidence. On arrival he received intensive care from specialists.
An autopsy upon Ryan was conducted by pathologists Dr Moore and Dr Gilbert. The cause of death was said to be hypoxic ischemic encephalopathy, that is brain damage resulting from a lack of blood and/or oxygen. Later in the trial, a paediatric neurologist, Dr Harbord, gave evidence. While he agreed with the diagnosis, he expressed the opinion that Ryan’s death was caused by cardiac arrest after delivery, that being caused by total occlusion of the umbilical cord due to cord prolapse. Dr Harbord had available to him the autopsy report and all the test results generated in the W&CH while Ryan was on life support. Dr Harbord’s view was based on that information, together with Ms Cheesman’s description of the appearance of Ryan and the umbilical cord immediately upon his delivery. I was impressed by Dr Harbord’s evidence. I am satisfied that Ryan’s death resulted from cardiac arrest after occlusion of the umbilical cord during his delivery.
Ryan’s presentation on autopsy was complicated by signs of some congenital abnormality and evidence that several days prior to birth he suffered a separate hypoxic insult which would likely have left him with spastic quadriplegic cerebral palsy. It seems that whatever caused that insult – probably some in utero compression of his umbilical cord – had resolved ahead of his birth. While I initially considered the likelihood of a link between that insult and the cord compression causing death, I am satisfied by Dr Harbord’s evidence that the two events were not linked; with the proviso that the first insult might have left Ryan more susceptible to the second.
Professor Pepperell’s evidence was that, provided Ms H’s baby was head down, it was safe to have a home birth. Later in cross-examination he said that this was on the assumption that she had not had a previous caesarean. In hospital she could have had a vaginal birth after caesarean, even if the baby was bottom down, provided the position of the placenta was favourable and the baby was not too big. Even then, 30 to 40 per cent of patients in her position would end up having a caesarean section.
Professor Pepperell said that as soon as the midwife arrived at Ms H’s house a vaginal examination should have taken place to determine the lie of the baby. However in cross-examination he agreed that this was only absolutely necessary where progress was slow or there was signs of problems. The foetal heart rate should have been checked. At the time feet or toes were felt, suggesting a footling breech, there should have been a transfer to hospital. Professor Pepperell said that constant pain outside contractions is suggestive of either longer than usual contractions or partial placental abruption. Once a breech birth is established the labour needs to progress at a reasonable speed. The witness said that by the time of photograph 31 at 4.11 pm, it was no longer safe to transfer to hospital; it was better to deliver the baby there.
As to cord compression and breech birth, Professor Pepperell said that the risk is greatest once the baby’s abdomen is delivered, as by then the cord is external, and will be compressed by the chest and after-coming head in the pelvic cavity. The witness said it was known that babies could suffer cord compression for up to eight minutes without ill effects.
In cross-examination Professor Pepperell accepted that the risks associated with a complete breech (as opposed to a frank or footling breech) were only minimally more than a head first birth. However, that was so only if it remained a complete breech. If the feet extended through the cervix before the buttocks, the situation became different. He agreed that Ms Cheesman’s description of the birth was consistent with a complete breech, where the feet slipped slightly ahead of the bottom.
Professor Homer said that at the time the toes were found to be presenting, a midwife should have recommended transfer to hospital. If it were a footling breech then a caesarean section would have been recommended. The use of a mirror by the accused in photograph 4 at 3.03 pm suggests Ms H was in the second stage of labour, with a fully dilated cervix. Transfer to hospital in the second stage is difficult. The risk is that the baby will be born in the ambulance. Certainly it is unsafe when a baby is partly delivered, as in photograph 34 at 4.30 pm.
Professor Dekker was of the view that, based on the photographs, this was most likely a complete breech. However, when feet or toes were initially felt, the likelihood was of a footling breech and the advice should have been to go to hospital for a caesarean section. Cord compression can occur at any time, but where it is a breech birth the risk intensifies once the baby’s belly and cord are visible.
The elements of manslaughter
I digress to set out what the prosecution must prove in relation to each count.
Although the submissions of the prosecution and defence on precisely what the prosecution had to prove to make out the charges were not wholly in accord, I shall not stay to discuss the differences in those submissions. In Wilson v The Queen (1992) 174 CLR 313 at 333 the High Court approved the formulation of the elements of manslaughter by criminal negligence in Nydam v The Queen [1977] VR 430 at 445:
In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.
However, in a case where the accused is alleged to owe a specific duty of care to the victim and to have breached it, elaboration is required.
I draw aspects of the following formulation from Nydam, Wilson, R v Lavender (2005) 222 CLR 67 at 72, 87-88 and R v Patel (2012) 247 CLR 531 at 556-558. The formulation is modified to reflect the prosecution case.
The elements of each count, which must be proved beyond reasonable doubt by the prosecution, may be described as follows.
1The accused owed to the victim a duty of care.
2The objective standard of conduct required of her was that of a reasonably competent midwife.
3The accused’s acts and omissions caused the death of the victim (in the sense of being a substantial cause of death).
4The accused’s acts and omissions were deliberate.
5The accused’s acts and omissions fell so far short of the applicable standard as to amount to gross or criminal negligence and thereby to warrant criminal punishment.
When, in these reasons, I speak of being satisfied of a matter, I should be understood to mean satisfied beyond reasonable doubt.
It should be noted that in order to find that the accused caused the victim’s death, the prosecution must arguably prove that the child was born alive. If so, any sign of life after birth would be sufficient: R v Iby (2005) 63 NSWLR 278 at 288. Since I am in no doubt that both Tully and Ryan were born alive in that sense, I do not propose to discuss those cases or the relevant evidence.
Was the accused acting as a midwife?
The prosecution submits that, despite calling herself a birth advocate, the accused took on the role of midwife before and during the births of Tully and Ryan. As a consequence, the prosecution submits that the duty of care owed by the accused to Ms Kerr and Ms H and their babies was that of a reasonably competent midwife. Whether this is proved will depend on whether the accused held herself out as having special knowledge or skills.
The accused was deregistered on 16 March 2011.
On the home page of the accused’s website (P2) appeared the following:
“I’m experienced in all types of births and this includes birthing at home with babies in breech position, twins and births after Caesarean. Anyone who believes they want and need this service should be entitled to get it.”
Both Ms Kerr and Ms H said that they had seen the accused’s website and the front page depicted in P2.
Ms Rice said she was working with the accused at the time she handed in her registration. Ms Rice said that the accused had received a complaint from the Nursing and Midwifery Board of South Australia in relation to a birth attended by complications. She said that the accused de-registered herself so that the Board could not further pursue that investigation. Ms Rice said that the accused framed the decision as ‘preserving women's rights to choose her as a practitioner’. The accused said that, if unregistered, she would not be subject to supervision of her practice and could keep on attending home births freely. Ms Rice said that the accused used the term ‘birth advocate’ to describe herself so that she could continue to advertise her services and continue to attend births with clients; but ‘wouldn’t be pursued for holding herself out as a midwife.’
Ms Kerr said during a meeting with the accused on 10 May 2012 the accused discussed her role. The accused told her that she was to be described as a birth advocate, not as a midwife. Ms Kerr was told that the term midwife was a protected term, and could not be used by unregistered persons. The accused said that she still had the same skills, knowledge and experience and she could use them all. Ms Kerr said that she heard the accused repeat this to others many times.
Ms H said that she was aware that the accused was not registered, but understood that this was for ‘political reasons’, and that it would not change the accused’s level of skills. Ms H said she knew that the accused preferred to be called a birth advocate, but denied that the accused had told her to do so. Ms H said she thought she knew about the accused’s preference for that title from reading media about her. Ms H said that, as far as she was aware, the term birth advocate was simply a name; it did not hold meaning behind it. Ms Nicole H denied that the accused told her and Ms H during any antenatal appointment that she was a ‘birth advocate’. Ms Nicole H said she knew that the accused was not a registered midwife.
Ms Cheesman said that the accused told her following her deregistration, that she should be described as a birth advocate. Ms Cheesman said that from that time she never heard the accused call herself a midwife.
The evidence of Ms Rice, Ms Kerr and Ms Honey Newman, another midwife who had worked with the accused, was that, despite resigning her registration, the accused plainly still intended to undertake the same role as before. Ms Rice said that she did not observe a clear change in the accused’s practice. She said that she observed the accused discuss the fact that she had surrendered her registration with each client. The accused said it would not affect her practice. Ms Rice said that, as far as she saw, everything but the title of midwife stayed the same. The accused still provided care, and still transferred women to hospital when necessary. Ms Rice said that none of the equipment that the accused took to births changed. Ms Rice said that the equipment included two Dopplers, neonate resuscitation masks, intra-venous fluids, oxygen, and nori roll for tears. The accused also carried Shepherd’s Purse, which was used to prevent haemorrhaging. Professor Homer said that neonate masks are part of the recognised equipment that a midwife would ordinarily carry at a birth.
Ms Kerr said that the accused made notes of her visits during the pregnancy in a notebook belonging to Ms Kerr. Mr Kavanagh also said that he saw the accused taking notes during antenatal appointments with Ms Kerr. The prosecution tendered these notes. Ms H denied that the accused told her that, as she was a birth advocate, she would not keep any notes, but was happy to write in Ms H’s diary. Ms H also denied ever having a diary. Ms H did not keep notes of her pregnancy, but used a calendar to record the dates on which antenatal appointments were held. Ms Cheesman said she was not aware of the accused using notes during 2012. Ms Cheesman said that the accused told her that she encouraged mothers to keep their own records.
The accused continued to charge for her services. Both Ms Kerr and Ms H engaged the accused on the understanding that the fee for her services was $3,000, which covered care during the antenatal, labour and post-natal periods. This was said to be consistent with the going rate for a private midwife.
Consistent with Ms Rice’s evidence, both Ms Kerr and Ms H said that the accused attended upon them regularly during the antenatal period, and advised them on things like diet and vitamin supplementation for things like muscle cramps. The accused advised Ms Kerr to take a ‘liver tonic’ and a ‘uterine tonic’ to reduce the chance of suffering a post-partum haemorrhage. At these appointments the accused would palpate the mothers’ stomachs to assess the lie of the babies and use a Doppler to listen to the foetal heart rate. Professor Homer said tasks such as attending at regular antenatal appointments, palpating a woman’s abdomen and advising as to nutrition and medication are typically undertaken by a midwife. Professor Homer also said the tasks that the accused undertook during Ms Kerr’s labour, including checking the foetal heart rate, conducting a vaginal examination and tying and cutting Gemma’s cord, are consistent with a midwife’s role.
As seen, Ms Kerr said that the accused talked to her about the risks that a twin pregnancy posed. Ms Cheesman also said that the accused had a discussion with Ms H and Ms Nicole H at the Birth Place, in which the accused explained how she would want the labour to progress, particularly if it were a breech presentation.
The accused gave evidence in August 2011 at the Coroner’s Court, relevant to another baby. She was asked about her usual practice with clients. She said that, since resigning her registration, she had attended at least 20 births. The accused said that, in her capacity as a birthing advocate, she was not permitted to conduct any clinical procedures, except in case of an emergency. Then, she would be able to use any skills that she had. She said that she was able to attend births, providing the mother understood that she could not provide midwifery care.
The accused’s evidence is to be contrasted with the evidence of the accused’s activities with respect to Ms Kerr and Ms H. The accused performed various clinical tasks, such as monitoring the foetal heart rate, conducting a vaginal examination and advising the women on the progress of their labour. This is consistent with the evidence given by Ms Rice and Ms Newman about the accused’s conduct in other instances where she claimed to be only a ‘birth advocate’.
I find that, despite the accused ceasing to be registered as a midwife, she undertook the duties of a midwife, and used her midwifery skills in the course of attending Ms Kerr and Ms H during their pregnancies and during their respective labours. The accused advertised herself as someone experienced in home births, and was no doubt engaged and paid by these women because of those skills. The tasks that the accused undertook during the pregnancies and labours were of the same nature as before and are typical of tasks performed by midwives. (I note that, while it was not, at the relevant times, an offence to practise as a midwife without being appropriately registered, such an offence was enacted in 2014: s 123A Health Practitioner Regulation National Law (South Australia) Act 2010.)
Consequently, I find that the accused held herself out as, was engaged as, and acted in the role of, a midwife throughout the periods that are particularised in Counts 1 and 2 of the Information. Therefore her duty of care was that of a reasonably competent midwife.
Use of cross-admissible evidence and out of court statements
I have used some evidence relevant to Count 1 to throw light on the facts underlying Count 2. It would be expected that the accused, or any home birth midwife, would routinely discuss with a client the risks of the proposed home birth. Certainly that was done with a degree of formality in relation to Ms Kerr’s pregnancy. The conversation was scheduled to await a time when Mr Kavanagh could be present. That evidence makes me more inclined to accept that one or more similar conversations took place between the accused and Ms H, despite Ms H denying it. In addition there is consistency between the accused’s approach to the antenatal appointments as between Counts 1 and 2.
I accept that in her dealings with Ms Kerr, the accused described herself as a birth advocate. Ms H and Ms Nicole H denied that she used that term to them. I have rejected that evidence on the basis of my finding that she did use that term to Ms Kerr and also because of the evidence of Ms Cheesman and Ms Rice that, after the time when she was deregistered, the accused instructed that she was to be referred to as a birth advocate.
I have used evidence of the accused’s demeanour as shown on P1 in forming my view of the way she conducted herself during Ms H’s labour. I accept that she was not given to overt signs of panic and retained an even demeanour when things were not progressing to plan. This could have led Ms Kerr, and more particularly Ms H, to fail to give appropriate weight to any warnings given them by the accused.
I should also say something about my approach to the extensive material comprising previous statements by the accused which has been presented to me. The prosecution tendered recordings of intercepted telephone conversations between the accused and several others, some of the accused’s sworn evidence before the Deputy Coroner and the covertly recorded conversations between the accused and Ms Kerr and the accused and Ms Rice. I have already made reference to some features of these which I have seen as evidence of admissions against interest. As regards the evidence before the Deputy Coroner, I take the view that, while it was on oath and subject to cross-examination, it is not of much weight for my purposes. It is not directly relevant. It tends to show in the accused a rather combative attitude and a good measure of self-justification, but that is understandable given that she was there under challenge for her conduct in one or more births. I have not seen the whole of the transcript of her evidence and it is difficult to place in context the excerpts which were tendered. However, I do not accept the self-serving statements made during the passages before me, for instance as to the thoroughness with which the accused would brief clients about risks, as being of more than little weight.
The other out-of-court statements were not on oath, not cross-examined upon and have the accused speaking with friends or former friends about her role in Count 1 in terms which are highly self-serving. I am not inclined to place any weight on what she said in her own defence in those informal conversations.
Consideration
I deal first with Count 1. Earlier in these reasons I indicated that I was not satisfied that there was any causal link between the accused’s conduct during Ms Kerr’s antenatal period and Tully’s death. It is necessary, then, to focus primarily on the events following Gemma’s birth to determine whether the accused’s conduct during that period caused Tully’s death and whether it was criminally negligent.
I have also set out that I am satisfied that the accused took on the role as a midwife in relation to both pregnancies and births notwithstanding that she was unregistered. Accordingly, she owed to both Tully and Ryan a duty of care, and the standard of conduct required of her was that of a reasonably competent midwife. I find that both women were led by the accused to expect that the accused would fulfil all the obligations of a midwife, including to offer advice, despite her being unregistered.
Plainly, the acts and omissions of the accused during both periods of labour were deliberate. There is no suggestion to the contrary.
I turn to the issue of causation. After Gemma’s birth at about 1.13 pm, I find that the first sign of any potential problem was five minutes later when a blood spurt was seen emanating from Ms Kerr into the water of the pool. I am satisfied on the evidence of the experts that, although this was not necessarily indicative of a problem, its source should have been investigated. It is not uncommon for women to bleed to some extent after a birth. At 1.21 Professor Homer heard a clear piece of audio in P1 which revealed a foetal heart rate of 92 bpm. She said that it was important at that point for Ms Kerr to leave the pool. Ms Kerr left the pool at 1.24. Professor Homer said that, because twin two was not recovering quickly, there was uncertainty about his presentation and, as Ms Kerr did not appear to be in strong labour, a transfer to hospital should have been considered. The situation became urgent at 1.26. Help was needed. By 1.31 it was ‘acute and dire’.
Professor Pepperell heard the foetal heart rate as 100 bpm at 1.21 pm. He said action of some sort needed to be taken at that point. It was appropriate to undertake a pelvic examination and, if the membranes were presenting, to rupture them. There could have been a transfer, but that would carry risks too. He said the baby was in real distress by 1.31 and delivery needed to be expedited. Professor Dekker said that by 1.22 there had been at least three abnormally low foetal heart rates and a transfer to hospital needed to be quickly undertaken. The accused asked Ms Kerr to perform a vaginal examination on herself – no doubt because Ms Kerr was resistant about being touched – but went on to perform the examination herself at about 1.41. The decision to transfer was made shortly after that and the telephone call by the accused to Ms Coffey at the W&CH occurred at 1.53.
Professor Homer said that at 1.21 pm Ms Kerr needed to get out of the pool to enable the accused to do a proper assessment. Professor Homer said, and I find, that the last time at which transfer should have occurred, if it were going to, was at 1.26 when the heart rate of 80 bpm was discerned. Therefore, accepting the evidence of all three experts, the critical period would seem to be from 1.21, when the low heart beat was found to be persistent, to 1.31, when delivery needed to take place immediately. During that period Ms Kerr left the pool (1.24) and the accused used the Doppler repeatedly. However, the accused did not perform the vaginal examination until 1.41.
I find that the accused was in a difficult position. The hospital was not nearby. It was about 20 minutes away by car. At 1.20 pm the accused told Ms Kerr that the baby was ‘so close’. I accept that was a genuine statement. By 1.21 not even 10 minutes had passed since Gemma’s birth. The vaginal examination which the accused first asked Ms Kerr to perform and then performed herself was, according to Professor Homer, within the range of appropriate responses to the series of low heart rates; although Professor Homer would have done it earlier and have called an ambulance in the meantime. A person in the accused’s position might reason that, if the low heart rates were due to placental abruption or cord compression, then only a birth in the next 10 or 15 minutes might save the baby. It could be reasoned that there was more chance of that occurring in the home where Ms Kerr could readily change position than in the confines of an ambulance.
However the situation was seen, the accused had a limited window of time in which a decision could be made and much pressure on her to make it. I find that her response was to do very little.
The prosecution contends that the accused ought to have conveyed to Ms Kerr the urgency and seriousness of the situation. I find that Ms Kerr did not understand the danger to twin two. It is difficult to hear the audio of Exhibit P1 sufficiently to make any findings about what the accused said to Ms Kerr during the critical period. I have already adverted to the accused’s calm demeanour in such situations. Little would be achieved by instilling a sense of panic. I consider that the accused should have told Ms Kerr in clear terms that the situation was serious. If Tully was to have any chance, the accused needed to act. But I am not satisfied that it would have altered the course of events.
While I find that the best decision would have been to organise a transfer to hospital by 1.21 pm, because of the inevitable delay in the ambulance arriving, assessment by the paramedics and the transfer itself – taking altogether perhaps about 25 minutes – that action would not necessarily have made any difference. Indeed, Professor Pepperell’s view, supported by Professor Dekker, was that it was likely that by 1.21 the placental abruption which led to Tully’s death had already occurred. If it were not a complete abruption at that point, it certainly was soon thereafter. And even if the abruption was initially less than complete, it seems likely that, based on Professor Pepperell’s evidence, unless Tully were delivered at the latest within 20 minutes after 1.21, he would not survive. Even then he was likely to be profoundly hypoxic.
In these circumstances I cannot be satisfied that, even had the accused acted differently at 1.21, for instance, to put in train a transfer to the W&CH, Tully would have survived. The prosecution fails on the issue of causation.
The prosecution was critical of the limited extent to which the Doppler was used. On Exhibit P1 the accused can be seen using the Doppler repeatedly after the birth of Gemma. It is apparent she was not always able to obtain a heart rate. There were difficulties because of Ms Kerr being in the pool. Even if her attempts should have been more regular or more persistent, I am not satisfied that any causal link to Tully’s death has been made out.
It is not necessary having regard to that finding to go on to consider criminal negligence. Indeed, it is somewhat artificial, since the accused’s slow response might have been motivated by a realisation that abruption or something equally dire was the issue. In any event, having regard to the very limited window of opportunity for her to act when the low heart rate persisted, and given that Professor Homer viewed a vaginal examination as an appropriate response, I could not validly base a finding of criminal negligence on the few minutes which ticked away between 1.21 pm, when there was clearly a problem, and 1.26, which Professor Homer said was the last chance to transfer. I prefer Professor Homer’s evidence on this aspect of the matter to that of the obstetricians, if only because she was seemingly more attuned to the choices which would face midwives in this positon. Even Professor Dekker admitted that determining what should be done was for him like looking at an ‘hypothetical’. For these reasons, while I find the accused’s conduct did not reach the standards of a reasonably competent midwife, I am not satisfied that, in delaying as she did, the accused was criminally negligent.
In reaching this position I have not overlooked the evidence of Ms Coffey, which I accept, that the accused misled her as to Tully’s heart rate. I also find that the accused instructed Ms Kerr not to mention Tully’s heart rates at the hospital; and that she misled Ms Rice as regards how quickly she had reacted to the emerging problems. While I find that these statements reflected a knowledge in the accused that her actions were open to criticism – which they were – I do not find that they answer the quite demanding requirements of the concept of criminal negligence.
I turn to Count 2.
I have already rejected the prosecution contention that, had appropriate advice been given by the accused to Ms H, the birth would have occurred in hospital rather than at home. I find Ms H was warned by the accused of the risks of a home birth. Ms H was entitled to decide to have the birth at home and the accused could not be seen to be criminally negligent simply by agreeing to be present. Therefore there is no proven link between the accused’s conduct in the antenatal phase and Ryan’s death.
In focusing on the accused’s conduct during Ms H’s labour it is necessary to establish the specific time span over which the allegation of criminal negligence is levelled.
In finding the facts relating to this birth I rely heavily on Ms Cheesman’s evidence, which I accept without reservation, and on the sequence as established by the photographs. While I consider Ms H and Ms Nicole H were not untruthful, I have reservations about their reliability. In relation to Ms H, that is first because I have already found it necessary to reject her evidence about the Birth Place conversation, and also because I accept that she was in great pain from the time her contractions started, which, on her own evidence, lessened her awareness of what was happening around her and of the sequence of events.
As already noted I accept the evidence of Professor Pepperell, Professor Dekker and Professor Homer. Differences between them are due to the two different disciplines to which they belong, and to questions of judgement.
The first critical time in the sequence of events for Count 2 is the time at which the vaginal examination took place. The prosecution appears to accept that this could have been as late as immediately before photograph 4, that is, 3.03 pm. By this time the accused and Ms H had already had a conversation about the pain she was experiencing and whether she still wanted to be at home. I make no definitive finding as to who initiated this conversation; it was probably Ms H. This was the, ‘Home birth is hard’ conversation. I find that, in response, Ms H indicated that she wished to stay at home.
I find that after the vaginal examination took place it was clear the foetus was in a breech position. There was then a conversation about how the birth was proceeding. Accepting Ms Cheesman’s evidence, there had always been a recognition that this birth might be another breech birth, even if the accused had suggested earlier that the foetus appeared to be head down. I find that the accused spoke to Ms H in the terms of the passage of evidence set out earlier, including that there was a high risk of complications in a breech birth. The accused advised that Ms H and Ms Nicole H should confer about it. Importantly, either in that conversation or earlier, I find that Ms Nicole H said to Ms H that, if she went to hospital for a caesarean, she might always regret it. Ms H did not recall that statement, but it is likely it had an impact on her. It also demonstrates that Ms Nicole H was hardly going to dissuade Ms H from remaining at home.
Again, I find that the decision of Ms H was to stay home. Ms Cheesman reported that Ms H said that, as long as she was okay and the baby was okay, she wished to stay. I find that the accused must have confirmed that they were. There is no evidence that the baby was in distress at this stage. Professor Homer said that a transfer to hospital should have occurred as soon as the breech position of the baby was discovered. Professors Pepperell and Dekker said that as soon as toes emerged there should have been a transfer. However, it was plainly Ms H’s decision to stay. Since the presentation was not necessarily indicative of a footling breech it remained viable, if unwise, to stay at home. I do not find that the accused should necessarily have advised a transfer to hospital. I find that if a transfer had taken place at that time Ryan would have lived, although, due to the earlier hypoxic insult, he would have been in a significantly handicapped state. However, in terms of proof of causation, I find that is not the relevant time.
From that point Professor Pepperell said the birth needed to happen at a reasonable speed. That is consistent with the accused’s own advice to Ms H at the Birth Place meeting and on the day of Ryan’s birth. The critical time, according to both Professors Pepperell and Dekker, is after the baby’s abdomen (or belly button) is delivered. Professor Pepperell said that by the time of photograph 31 (4.11 pm) it was no longer safe to transfer. I find that this narrows the time within which the allegation of criminal negligence causing death might bite to between 3.03 and 4.11 pm.
I find, on the basis of Ms Cheesman’s evidence, that the accused took the foetal heart rate hourly at first and more frequently when Ms H started pushing. There is no evidence of what the heart rates were.
I find that at some point in that period the accused must have become worried, either at the delay in delivery, or at a lower than normal foetal heart rate. At that point, whenever it was, she should have alerted Ms H and Ms Nicole H to the worrying signs and, advised a transfer. I find that she did not. The question is whether, in that period of perhaps an hour, but perhaps much less, transfer to hospital would have saved Ryan’s life and, if so, whether the failure to give that advice was culpably negligent.
Of course a decision such as giving the advice to transfer is always a question of judgement. And one would expect that the judgement of someone who promoted and believed in home births would often be different from experts following a medical model.
It can readily be seen that the accused’s failure to alert Ms H that the baby was no longer ‘okay’, whenever that was, was wrong. I find it was plainly a misjudgement, perhaps arising from a lack of confidence, or lack of the ability to be decisive, or a lack of competence. Perhaps the accused believed her own dogma, and was carried away with, and misguided by, the good reputation she enjoyed in the home birth community, where she was described as a breech birth expert. Perhaps her view of the situation and her sense of responsibility was skewed by her conviction that a woman should determine for herself what should occur in relation to her own body even if it endangered the woman or her baby, that she, the accused, should present only options and not advice and that she should support the woman’s decisions regardless of how misguided they might be; that home birth was safe and that deaths occurred in hospital as well.
The accused’s failure might be due to any of these motivations or impediments or circumstances. However, while it was entirely unsatisfactory, I do not find her conduct to have been criminally negligent. Again, it is too easy to view the events with the benefit of hindsight. The situation was dynamic. Ms H was in much pain. Ms H and Ms Nicole H had not even prepared a bag to take to hospital. They must have been quite set in their thinking. The time within which the critical advice should have been given might be much less than the hour or so between 3.03 and 4.11 pm.
It is not suggested that the accused wanted anything but a successful home birth for Ryan, and indeed Tully. I find that she failed to act when she should have at some undetermined point during Ms H’s labour and that failure continued over a period of at least some minutes, maybe much more. However, I cannot find, irrespective of whatever drove her or impeded her, that her conduct amounted to gross negligence.
Again, because I cannot ascertain over what period the accused’s inaction persisted, I cannot determine whether, by acting earlier and strongly advising a transfer, Ryan’s life would have been saved. The evidence does not justify such a conclusion.
Conclusion
I am satisfied beyond reasonable doubt that, although unregistered, the accused held herself out as having the skills of a midwife and took on the role of midwife in respect of the pregnancies of both Ms Kerr and Ms H. She therefore owed a duty of care to each baby.
On Count 1 the prosecution has failed to prove that the accused’s acts or omissions in the antenatal period, or during the labour, caused Tully’s death. In addition, I have found that the prosecution fails on proof of criminal negligence.
On Count 2 the prosecution has failed to prove that the accused’s acts or omissions in the antenatal period caused Ryan’s death. The prosecution has failed to prove that the accused was criminally negligent in her management of Ms H’s labour. I cannot be satisfied that, if the accused had advised Ms H to transfer to hospital when warning signs emerged, Ryan’s life would have been saved.
While I have found that the accused’s conduct in relation to the labours of both women fell short of that of a reasonably competent midwife, in neither case has it been proved beyond reasonable doubt to be grossly or culpably negligent as the law of manslaughter by criminal negligence requires. Although I find the accused’s conduct was less than competent, I am not satisfied that her conduct merits criminal sanction.
My verdict in relation to each count is, ‘not guilty’.
9
1