R v Barrett (No 3) - [2019] SASC 93

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 93
Criminal: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Barrett (No 3)

Details

AGLC: R v Barrett (No 3) [2019] SASC 93
Case: [2019] SASC 93
Decision Date: 4 June 2019

CaseChat Overview and Summary

In this matter, the accused, Barrett, was charged with two counts of manslaughter. The first count related to the death of Tully, the child of Ms Sarah Kerr and Mr Matthew Kavanagh, who died shortly after birth due to hypoxia caused by placental abruption. The second count involved the death of Ryan, the child of Ms H and her partner, who died from cardiac arrest due to total occlusion of the umbilical cord. The court was required to determine whether the accused was acting as a midwife, whether her conduct during the antenatal period and labour caused the deaths, and whether her conduct amounted to criminal negligence. The court concluded that the accused was indeed acting as a midwife, and thus owed a duty of care to both babies. However, the court found that the prosecution had failed to prove that the accused's conduct caused the deaths or that she was criminally negligent. Consequently, the accused was found not guilty on both counts.

The court held that, while the accused's conduct fell short of that expected of a reasonably competent midwife, it did not reach the level of gross or culpable negligence required for a manslaughter conviction by criminal negligence. The court accepted that the accused had described herself as a birth advocate, which the mothers and their partners had relied upon. The court found that the accused's actions during the labours were deliberate, and while there were signs of potential problems, it could not be established that earlier transfer to hospital would have saved the babies' lives. Therefore, the court held that the accused was not criminally negligent and found her not guilty on both counts of manslaughter.

The court's decision was based on the lack of evidence to prove causation and criminal negligence beyond reasonable doubt. The court acknowledged that the accused's conduct was less than competent, but it did not merit criminal sanction. The court did not find the out-of-court statements made by the accused to be reliable due to their self-serving nature and lack of formal context. The court's ruling highlights the high threshold required for a manslaughter conviction by criminal negligence and the importance of proving both causation and the requisite level of negligence.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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’.

Ratio Decidendi

Legal Principle Established

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.