R v Baxter
[2019] QCA 87
•17 May 2019
SUPREME COURT OF QUEENSLAND
CITATION:
R v Baxter [2019] QCA 87
PARTIES:
R
v
BAXTER, Nicholas Aaron
(appellant)FILE NO/S:
CA No 276 of 2017
SC No 74 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Townsville – Date of Conviction: 20 November 2017 (North J)
DELIVERED ON:
17 May 2019
DELIVERED AT:
Brisbane
HEARING DATE:
7 June 2018
JUDGES:
Fraser JA and Jackson and Crow JJ
ORDERS:
1. Appeal allowed.
2. Conviction quashed.
3. A retrial ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was acquitted of murder but convicted of manslaughter of his child – where the appellant argues the evidence did not establish traumatic injury – where the appellant argues there was no proof that the appellant caused the deceased to collapse – where the appellant argues that there was insufficient evidence to prove beyond reasonable doubt that the medical findings relevant to cause of death could be attributed to anything done by the appellant – whether the verdict was unreasonable or cannot be supported having regard to the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was acquitted of murder but convicted of manslaughter – where the deceased sustained rib fractures prior to sustaining the brain injury the subject of the charges – where evidence of the rib fractures was ruled admissible pursuant to s 132B of the Evidence Act 1977 (Qld) subject to the need to give appropriate directions and warnings to the jury – where the appellant challenges the admissibility of the rib fracture evidence on the ground that it did not constitute evidence of the “history of the domestic relationship” because it was disputed who caused the rib fractures – whether evidence of the rib fractures sustained by the deceased should have been admitted pursuant to s 132B
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was acquitted of murder but convicted of manslaughter – where the deceased sustained rib fractures prior to sustaining the brain injury the subject of the charges – where the evidence of the rib fractures was ruled admissible pursuant to s 132B of the Evidence Act 1977 (Qld) subject to the need to give appropriate directions and warnings to the jury – where the trial judge declined to exercise the discretion in s 130 of the Evidence Act 1977 (Qld) as unfairly prejudicial – where the appellant challenges the decision not to exclude the evidence as unfairly prejudicial – where the appellant argues the admission of the rib fracture evidence as relevant evidence of the history of the domestic relationship carried with it a high risk of impermissible reasoning that the appellant caused the death of the deceased – whether it was unfair to the appellant for the rib fracture evidence to be admitted – whether the trial judge erred in failing to exclude the rib fracture evidence pursuant to s 130 of the Evidence Act 1977 (Qld)
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – OTHER MATTERS – where the deceased sustained rib fractures prior to sustaining the brain injury the subject of the charges – where the evidence of the rib fractures was ruled admissible pursuant to s 132B of the Evidence Act 1977 (Qld) subject to the need to give appropriate directions and warnings to the jury – whether the trial judge erred in the directions given to the jury as to the manner in which the rib fractures could be used
Criminal Code (Qld), s 23, s 293, s 302(1)(a)
Evidence Act 1977 (Qld), s 130, s 132BAttorney-General v B [2003] 1 Qd R 114; [2001] QCA 169, cited
BBH v The Queen (2012) 245 CLR 499; [2012] HCA 9, cited
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, cited
Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50, cited
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16, cited
Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
OKS v Western Australia (2019) [2019] HCA 10; [2019] HCA 10, cited
Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited
R v Bauer (2018) 92 ALJR 846; [2018] HCA 40, cited
R v Bonython (1984) 38 SASR 45, cited
R v Klamo [2008] 18 VR 644; [2008] VSCA 75, cited
R v Mackie (1973) 57 Cr App R 453, cited
R v Macphee[2005] QCA 175, cited
R v Mills [1986] 1 Qd R 77, cited
R v Reed[2014] QCA 207, cited
R v Shoesmith[2011] QCA 352, cited
R v Sica [2014] 2 Qd R 168; [2013] QCA 247, cited
R v Summers [1990] 1 Qd R 92; [1989] QSCCCA 182, cited
Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, cited
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited
Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17, citedCOUNSEL:
P J Callaghan SC, and L Crowley, for the appellant
M R Byrne QC for the respondentSOLICITORS:
Michael Bowe Solicitor for the appellant
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I have had the advantage of reading my colleagues’ reasons in draft. For the reasons given by Jackson J, I too would dismiss the appeal on ground 1, allow the appeal on ground 2(b), set aside the conviction, and order a new trial.
JACKSON J: Except to the extent necessary to explain these reasons, I adopt the summary of the factual circumstances and evidence in this case contained in the reasons of Crow J.
Although the appellant’s plea of not guilty to the charge of the offence of murder raised the general issue on all matters of fact, there were three questions of substance to be resolved, in order to decide his guilt. First, were the jury satisfied beyond reasonable doubt that the appellant “caused the death”[1] of his six week old son, Matthew (“the deceased”), either by shaking him, or by striking his head, or causing an impact of his head against some surface on 3 November 2011, so as to cause injuries inside his cranium that resulted in subdural and subarachnoid haemorrhaging, and generalised swelling of his brain, which in turn caused a cardio-respiratory arrest that caused the death? Second, if “yes” to the first question, were the jury satisfied beyond reasonable doubt that the appellant “intend[ed] to cause the death” of the deceased, or “intend[ed] to do… [him] grievous bodily harm”?[2] Third, if “yes” to the first question but “no” to the second question, were the jury satisfied beyond reasonable doubt that the death was not “an event that… [the appellant did] not intend or foresee as a possible consequence and an ordinary person would not reasonably foresee as a possible consequence”.[3]
[1]Criminal Code Act 1899 (Qld), s 293.
[2]Criminal Code Act 1899 (Qld), s 302(1)(a).
[3]Criminal Code Act 1899 (Qld), s 23.
The appellant gave evidence and called witnesses. His defence, in accordance with that evidence, and his counsel’s address, was not that he had caused the deceased’s death but did not foresee the injuries. It was that he did not shake, strike or cause any impact to the deceased’s head and did not cause the injuries or the death. However, the trial judge directed the jury to consider the third question.[4]
[4]Appeal Books (“AB”) page 1827 lines 30 – page 1828 line 5.
The jury’s verdict of manslaughter necessarily means that they answered “yes” to the question whether the appellant caused the injuries and the death, “no” to whether he intended to cause the death or do the deceased grievous bodily harm and “yes” to the question whether they were not satisfied that the death was an event that the appellant had not foreseen as a possible consequence and an ordinary person would not reasonably foresee as a possible consequence.
Ground 2
Ground 2 of the amended notice of appeal is that the trial judge erred:
(a)in ruling admissible, pursuant to s 132B of the Evidence Act 1977 (Qld), evidence of rib fractures sustained by the deceased, alternatively;
(b)in failing to exclude, pursuant to s 130 of the Evidence Act 1977 (Qld), evidence of fractures sustained by the deceased, alternatively;
(c)in the directions given to the jury as to the manner in which evidence of the rib fractures could be used.
On 10 October 2017, the trial judge dismissed an application made under s 590AA of the Criminal Code 1899 (Qld) to exclude the evidence of rib fractures sustained by the deceased in the period between seven days and three weeks before 3 November 2011 when he suffered a catastrophic cardio-respiratory arrest, leading to his death a few days later. The rib fracture evidence comprised physical evidence of medical diagnostic images taken by x-ray, expert opinion evidence of medical practitioners that those images showed rib fractures and expert opinion evidence of medical practitioners as to the cause of the rib fractures. However, it should not be overlooked that there was a third component of the rib fracture evidence adduced by the prosecution, namely that in the period during which the rib fractures occurred, in effect, the deceased was exclusively cared for by the appellant and his wife whose evidence was that, subject to one possible exception, there was no event that occurred while she was present and caring for the deceased that might have caused the rib fractures.
The prosecution contended the rib fracture evidence was admissible against the appellant on his trial for murder or manslaughter of the deceased on three bases: first as “propensity” evidence at common law; second, as “relationship” evidence at common law; and third, as evidence of the “history of a domestic relationship” between the appellant and the deceased within the meaning of s 132B of the Evidence Act 1977 (Qld). The trial judge rejected the first two bases of tender, but accepted that the evidence was admissible under s 132B.[5]
[5]AB pages 67-68.
Ground 2(a)
By ground 2(a), the appellant challenges that decision. I observe that by its written submissions, the respondent contends that the evidence was admissible, in any event, as propensity evidence and in proof of the mental element required for a conviction of murder.[6] That is a challenge to the trial judge’s decision as to the permissible basis to admit the rib fracture evidence. The respondent’s contention on this point may be put to one side until later in these reasons.
[6]Outline of submissions on behalf of respondent, [82].
The trial judge’s reasoning that the evidence was admissible under s 132B concluded as follows:
“Subject to the need to give appropriate directions and warnings to the jury with respect to propensity evidence and appropriate instructions to the jury that the basis of the tender is to serve the purpose of s 132B, that is to provide relevant evidence of a history of a relationship so that the event or events contended by the prosecution on the 3rd of November are not seen as isolated events out of a context, … I hold that this evidence is admissible on this ground.”[7]
[7]AB page 68 lines 40-45.
The evidence led on the application and at the trial informs the arguments of the parties on appeal as to three contextual matters. First, it was not in dispute that the x-rays were physical evidence tendered by the prosecution that showed some evidence of rib fractures having been suffered by the deceased. Second, it was in dispute that any rib fractures were caused by the mechanism opined by prosecution’s medical expert witnesses, namely that the deceased’s rib cage had been encircled and compressed or, for the fractures on the front, that there had been some direct application of force. Third, it was in dispute that the appellant had engaged in any such compression or direct application of force.
Section 132B(1) applies s 132B to criminal proceedings for a range of different offences, including murder and manslaughter. Section 132B(2) provides as follows:
“Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.”
The appellant challenges whether the rib fracture evidence was relevant evidence of the “history of the domestic relationship” between the appellant and the deceased, on the ground that it did not establish that the appellant was the person who caused the rib fractures. The appellant submits that any conclusion that he was the person responsible was speculation, notwithstanding the evidence of his wife to the effect that she had not caused any rib fractures, generally speaking,[8] and other evidence that he had opportunity alone with the deceased to do so.[9]
[8]See paragraph 63 below.
[9]See paragraphs 61 and 62 below.
Ultimately, the appellant’s argument is that in the absence of conclusive or stronger proof that the appellant caused the rib fractures, the evidence did not amount to evidence of the “history of the domestic relationship” between the appellant and the deceased, within the meaning of s 132B(2).
There is no doubt that there was a “domestic relationship” between the appellant and the deceased as father and infant son living together as part of a family. The respondent submits that a past incident occurring in the course of that relationship will qualify as “history” of the domestic relationship. Further, the respondent submits that although the rib fracture evidence could only by used by the jury if they were satisfied that the appellant was the person responsible for inflicting the rib fractures, that does not mean that the rib fracture evidence was inadmissible, unless it was first proved that the appellant was the person responsible.
In my view, the respondent’s submissions should be accepted. There is a similarity between relevant evidence of the “history of domestic relationship” admitted under s 132B and “propensity” evidence admissible at common law in proof of the offence charged, although their spheres of operation differ as to the purposes for which they may be used. In the case of admissible propensity evidence, where the evidence is in dispute, “it is still relevant to prove the commission of the acts charged”,[10] although it must be kept in mind that admissibility in that context also requires that, if the evidence is accepted, “there is [no] rational view of the evidence that is consistent with the innocence of the accused”, sometimes described as “the Pfennig test”.[11]
[10]Pfennig v The Queen (1995) 182 CLR 461, 482.
[11]Pfennig v The Queen (1995) 182 CLR 461, 483; see HML v The Queen (2008) 235 CLR 334, 383 [107]; BBH v The Queen (2012) 245 CLR 499, 534 [106].
It was held in Roach v The Queen[12] that the Pfennig test is not a condition of admissibility of evidence led under s 132B(2) because “the sole basis to be applied for admissibility, relevance, is clearly stated”.[13] Compare also R v Reed,[14] where an objection to evidence based on similar grounds to the present point was rejected.
[12](2011) 242 CLR 610.
[13]Roach v The Queen (2011) 242 CLR 610, 622 [31].
[14][2014] QCA 207, [38].
It follows, in my view, that the appellant’s challenge to the admissibility of the rib fracture evidence on the ground that it could not constitute evidence of the “history of the domestic relationship” between the appellant and the deceased, because it was disputed that the appellant was the person who caused the rib fractures, must fail.
Ground 2(b)
Ground 2(b) challenges the trial judge’s decision to admit the rib fracture evidence, subject to the need to give appropriate directions and warnings to the jury with respect to propensity evidence on the limited basis that the event or events contended for by the prosecution on 3 November were not to be seen as isolated events out of context.
Section 130 of the Evidence Act 1977 (Qld) provides:
“Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence, if the court is satisfied that it would be unfair to the person charged to admit that evidence.”
The trial judge determined the application under s 130 to exclude the rib fracture evidence otherwise admissible under s 132B as follows:
“I would decline to exercise any residual power at all or under s 130 of the Evidence Act to exclude the evidence as unfairly prejudicial. In my view, a fair trial can be had, provided no improper use is made of the evidence and appropriate instructions and warnings are given. As a consequence, I rule against the defendant’s application.”[15]
[15]AB page 69 lines 1-5.
In reaching a conclusion as to the exclusion of evidence under s 130, the question is whether the court is satisfied that it would be unfair to the person charged. What is unfair will be informed by what is fair both to the person charged and to the prosecution. That assessment can only be made having regard to the use or likely use of the evidence and the other evidence to be called at the trial, to the extent that it is known.
In the present case, the trial judge expressed that use to be so that the event or events contended by the prosecution on 3 November are not seen as isolated events out of context.
However, so far as the prosecution was concerned, the evidence of the rib fractures was to be used as:
“a compelling graduation in the injuries with (sic) which the jury can have regard to in placing the injuries on the 3rd November in their proper context”.[16]
[16]AB page 59, line 22-23.
Sometimes the drawing of distinctions between what may be called “similar fact” or “propensity” evidence, or “relationship” evidence, and the use or uses of those different expressions in different contexts, serves to confuse rather than to clarify.[17] But in all contexts, in considering the admission of such evidence, including under s 132B, it is critical to keep the use to which the evidence in question may be put squarely in mind, as was done in the case of propensity evidence, for example, by Harriman v The Queen.[18] In my view, it is equally important to keep those uses in mind in considering whether the evidence should be excluded as a matter of discretion, including under s 130.
[17]HML v The Queen (2008) 235 CLR 334, 388 [125].
[18](1989) 167 CLR 590.
In the present case, to describe the rib fracture evidence as admissible so that the event or events of 3 November were not seen as isolated events out of context did not grapple with the clearly stated intention of the prosecution to use the rib fracture evidence as part of a course of conduct alleged against the appellant, described by the prosecution as a compelling graduation in the injuries sustained by the deceased at the hands of the appellant, with the end point of the death of the deceased from the event or events of 3 November 2011.
That is to say, the prosecution intended to use the rib fracture evidence as propensity evidence of the appellant having inflicted injuries upon the deceased on 3 November. Once that point is reached, it is difficult to understand the basis of the trial judge’s ruling on the application of s 130. In Harriman, Dawson J said:
“A close examination of the cases decided in an effort (ultimately unsuccessful) to avoid the forbidden chain of reasoning will show that when propensity evidence was admitted it was in general because of its relevance as propensity evidence, whatever other label was put upon it.”[19]
[19](1989) 167 CLR 590, 600.
The trial judge’s reference to admission of the rib fracture evidence so that the charged acts “are not seen as isolated events out of context” may be traced to the reasoning in Roach,[20] HML,[21] and earlier cases. The question in Roach was somewhat different from the present case. The charge was one count of assault occasioning bodily harm. Roach and the complainant had been in an intermittent sexual relationship for two and a half years prior to the alleged assault. Roach was the complainant’s carer for some of that time. The disputed evidence was of many assaults by Roach upon the complainant, as she summarised them: “if [Roach] had more than one too many Chardonnays, I always copped a flogging.”[22] As the reasons in the High Court recognised, such evidence was sometimes admitted as “relationship” evidence at common law. In the Court of Appeal in Roach, it was held that although the prosecution disclaimed reliance on propensity, in reality it sought to use the evidence as evidence of Roach’s “disposition to aggression” towards the complainant.[23] It was held that although the evidence should be identified as showing that particular propensity, it also made Roach’s conduct in relation to the alleged offence “intelligible and not out of the blue”.[24]
[20](2011) 242 CLR 610, 619 [22] and 625-626 [48].
[21](2008) 235 CLR 334, 393 [148], 401-402 [180]-[181], 415 [241], 444-445 [319], 449 [328], 478 [425], 489 [472].
[22](2011) 242 CLR 610, 618 [20].
[23](2011) 242 CLR 610, 619 [22].
[24](2011) 242 CLR 610, 625 [45]. Compare HML v The Queen (2008) 235 CLR 334, 496-498 [498]-[501].
In the present case, the trial judge reasoned that the evidence should not be admitted as propensity evidence at common law, in particular on the issue of intention to cause death or do grievous bodily harm for the offence of murder, because it was neither sufficiently probative on the issue of intent, and because he did not accept it was sufficiently probative to outweigh the possible prejudice to the appellant.
In so finding, the trial judge reasoned that the rib fracture evidence:
“At its highest, … is probative of a propensity to offer violence and, as submitted by the prosecutor, perhaps, increasing levels of physical violence by reason of the inference that successively greater degrees of forces were applied”.
It cannot be said, therefore, that the trial judge ignored or misunderstood the prejudicial effect to the appellant of admitting the evidence. However, the reasons do not disclose any further analysis of why that effect was not considered to be unfair to the appellant under s 130.
The appellant submits that the trial judge’s conclusion was erroneous for a number of different reasons. One of them is that the admission of the rib fracture evidence inevitably opened up a whole new front of factual disputes requiring the appellant to defend himself against two further accusations of serious violence against the deceased, in addition to the accusation of having unlawfully killed the deceased. The appellant referred to the observations of Gleeson CJ in HML v The Queen[25] that the form in which most similar fact evidence is admitted may create a serious risk of unfairness. It may be accepted that a significant proportion of the trial and the evidence related to the rib fracture evidence. But that is a consequence of a decision that propensity evidence or relevant evidence of the history of a domestic relationship is admissible. Accordingly, in my view, subject to two points to be made below, the scope of the factual disputes added by the rib fracture evidence was not a consideration that was likely to cause unfair difficulties in this case because the appellant had to defend them, per se.
[25](2008) 235 CLR 334, 354-355 [13].
In support of his submission as to the extent that the rib fracture evidence potentially distracted the jury, the appellant submits that the prosecutor, in his closing address to the jury, referred to “yellowy-browny marks”,[26] as supporting the conclusion that the appellant left finger-sized bruises on the deceased near where there were rib fractures. The appellant submits that reference illustrates the risk of unfair prejudice to the appellant in admitting the rib fracture evidence, given the absence of any expert opinion evidence supporting the conclusion that there was such bruising. In my view, if the rib fracture evidence was otherwise admissible, the prosecutor’s final address about the evidence did not make it inadmissible. The absence of expert evidence supporting the prosecutor’s hypothesis of bruising might have been a matter for further direction by the trial judge, but was not in itself a reason to exclude the rib fracture evidence under s 130 as unfair to the appellant. And it is not a ground of appeal.
[26]AB page 1751, line 36.
However, a submission of greater weight is that admission of the rib fracture evidence as relevant evidence of the history of the domestic relationship carried with it a high risk of impermissible reasoning, not only by the jury, but also by one or more of the prosecution’s expert witnesses, by direct use of the rib fracture evidence by way of propensity reasoning as to proof that the appellant caused the cardio-respiratory arrest and death of the deceased.
The point appears from a passage in the cross-examination of an important prosecution expert witness, who was a paediatric radiologist, Dr Lamont. He was asked questions in cross-examination that dealt with combinations of physical observations or findings that might support an opinion that the deceased’s death was caused by traumatic shaking. Dr Lamont agreed that a combination of encephalopathy, retinal haemorrhages, and subdural haemorrhages, termed the “triad” in the evidence, cannot be used alone to come to an opinion of a causal mechanism of trauma.[27] There followed a passage of questions and answers in relation to medical publications as to the occurrence of and causes of what was termed “shaken baby syndrome”.[28] Along the way, Dr Lamont made a number of points by way of answer that dealt with the physical medical findings in the present case. In response to a question as to whether they were enough to conclude that this is a case where there has been trauma through shaking, he answered:
“It all depends. … here we’ve got… intracranial bruising. Alongside it we’ve got subdural collections. Alongside that we’ve got subarachnoid bleeding, brain stem bleeding. They all fit together, in my opinion, to say that there is significant trauma to this baby’s brain.”[29]
[27]AB page 595, line 20.
[28]AB pages 595-600.
[29]AB page 595 lines 27-30.
In answer to another question as to the significance of individual findings that could be associated with traumatic shaking, he said as follows:
“[T]his is this business of pulling a whole picture apart and then referring to each of the individual bits. So the implication here is that because the triad didn’t work, therefore, the subdural haemorrhages here aren’t necessarily non-accidental. We do have a whole stack of different things all put together here. You can’t separate them out. It’s severe trauma to the head.”[30]
[30]AB page 595 lines 35-40.
Later still, in answer to questions from the trial judge about the significance of individual findings, Dr Lamont answered as follows:
“The point I’m making is you’re looking at the whole baby. You’ve got all the rib fractures. You’ve got the three or four different features within the brain together as a combination.”[31] (emphasis added)
[31]AB page 600 lines 36-38.
In my view, the last passage illustrates the risk of unfair prejudice that attached to admitting the rib fracture evidence on the ground that it was only to be used as relevant evidence of history of the domestic relationship. Even one of the eminent medical experts, whose function was only to give evidence of expert medical opinion, sought to justify reasoning to his conclusion that the deceased suffered trauma by shaking, by relying on the rib fractures (and the unstated necessary assumption that they were inflicted by whoever inflicted trauma by shaking on 3 November). That was a clear direct use of the rib fractures as propensity evidence.
Some of the other medical expert witnesses called by the prosecution appear to have reasoned in the same way.[32]
[32]AB page 775 lines 5-15 (Dr Ireland).
The point is illustrated further by one of the respondent’s written submissions on appeal. The respondent described “the essence” of the contest at trial as “whether the deceased’s brain injury… was the consequence of trauma inflicted by the appellant… or whether there was some doubt about that”, and submits that “[o]ther findings, such as intracranial bleeding, retinal bleeding, retinochisis, and, to a lesser degree, two sets of earlier rib fractures were relevant to a determination of that issue”. (emphasis added)
This, too, is a use of the rib fracture evidence as direct propensity reasoning.
The course of the trial was diverted into that process to the extent that an eminent expert fell into the error of reasoning in a non-expert propensity way towards a conclusion that supported the appellant’s guilt. In my view, the risk of that process of reasoning, although perhaps not by any expert medical witness, was always present in admitting the rib fracture evidence, given that evidence and the evidence that was otherwise to be led at the trial as to the cause of the deceased’s fatal injuries. It followed, in my view, that there was always a significant risk that it might be unfair to the appellant to admit the rib fracture evidence as anything other than propensity evidence that was of probative force sufficient to satisfy the Pfennig test.
The trial judge considered, however, that appropriate directions and warnings to the jury with respect to propensity evidence and appropriate instructions as to the basis of the tender under s 132B supported admission of the rib fracture evidence as evidence of the history of the domestic relationship.
There is a separate ground of appeal based on the adequacy of the relevant directions, if the evidence was admissible only on that basis. But it is relevant at this point to consider what those directions may have been at the time that the trial judge exercised the discretion under s 130 not to exclude the rib fracture evidence, by reference to the directions that were in fact given.
As previously stated, the prosecution’s stated purpose in tendering the rib fracture evidence during the hearing of the application to exclude the rib fracture evidence was to support the contention that the appellant engaged in a course of conduct of increasing violence towards the deceased. It was to use the rib fracture evidence to directly reason that it was more likely that the appellant unlawfully killed the deceased. Ultimately, that proposed use was acknowledged in the trial judge’s direction summarising the prosecution’s case on this point as follows:
“… the Prosecution contends that the [rib fracture] evidence suggests that the history of the relationship was one of increasing levels of [violence] by the defendant to Matthew. If the timeframe suggested by the doctors for the infliction of the fractures is accurate, some action or actions were perpetrated by the defendant on the Prosecution case on or about the 13th October 2011, about three weeks before the 3 November 2011, resulting in two rib fractures and, subsequently, about seven to 10 days before the 3rd of November 2011, that is, sometime between approximately the 23rd and the 26th of October another actual action brought about Matthew sustaining 15 fractures to his ribs. And, finally, the Prosecution points to the effects on or about the 3rd of November 2011 culminating in the collapse that resulted in Matthew’s admission to hospital and ultimate death on the 6th of November 2011.”[33]
[33]AB page 1802, lines 5-15.
The trial judge then directed the jury as follows:
“But although the evidence of the alleged rib fractures on these two separate occasions before the 3rd of November 2011 comes before you as part of the prosecution case concerning an allegation of a history of violence in the relationship, you must not use it to conclude that the defendant is someone who had a tendency to commit the type of offence with which he is charged, that is, murder by act or acts resulting in the death, with the intention to cause death or grievous bodily harm or, for that matter, its alternative, manslaughter. It would be quite wrong for you to reason if you are satisfied that he did the act or acts on the occasions when the rib fractures are alleged to have been sustained, that it is likely that he committed the charge, the offence of murder, on a later occasion as alleged.
In short, you must not reason that because the defendant caused rib fractures it is likely that he did anything on or about the 3rd of November with the intention to kill Matthew or that he might have unlawfully killed Matthew. As I said to you, the evidence of the rib fractures comes before you as part of the prosecution case concerning an allegation of a history of violence within the domestic relationship that included Matthew and the defendant, and it does not come before you as proof of the charge of murder or its alternative, manslaughter.”[34]
[34]AB page 1802, lines 17-34.
Next, the trial judge further explained that:
“The evidence forming part of the history of the domestic relationship comes before you with the purpose of rendering intelligible or explicable the conduct that is alleged to have occurred on the 3rd of November 2011 which, in the absence of the history of a domestic relationship, would otherwise appear to be out of character and improbable or to have occurred out of the blue.”[35]
[35]AB page 1802, lines 35-40.
The trial judge then qualified that direction, saying:
“Further, and this is very important, you must separately consider the evidence relating to the rib fractures independently of and separately from the evidence concerning the injury or injuries alleged to have resulted in Matthew’s collapse and ultimate death. You must not use one body of evidence to bolster the evidence relating to the other issue.”[36]
[36]AB page 1802, lines 40-44.
Returning to the decision to admit the rib fracture evidence under s 132B, and not to exclude it as unfair to the appellant under s 130, in my view, the trial judge may have erred in postulating that giving appropriate directions and warnings to the jury with respect to propensity evidence and limiting the basis of admission of the evidence under s 132B would remove any prejudice that was otherwise unfair to the appellant in admitting the rib fracture evidence.
It is at this point that the most difficult question under s 130 arises. Given that an evident purpose of s 132B is to admit evidence of the history of a domestic relationship that does not meet the Pfennig test, provided the evidence is relevant to the offence charged, including by way of propensity to engage in violence towards an alleged victim of the offence charged, what is to be taken into account in determining what amounts to evidence that is “unfair”?
With two important exceptions, there is not much guidance as to this question under s 130 in the cases referred to by the parties. The first exception, settled by Roach, is that evidence is not unfair merely because it will not elevate a circumstantial case against the person charged to one where, if the evidence is accepted, there is no rational view of the evidence that is consistent with the innocence of that person. The second exception, also from Roach, is that:
“… it is difficult to see how unfairness could be tested otherwise than by reference to the more general discretion. That is to say, consideration must be given to whether the prejudicial effect of the evidence exceeds its probative value. In the latter regard, consideration may be given to directions which may be given to the jury which may reduce the prejudicial effect of the evidence.”[37]
[37](2011) 242 CLR 610, 618 [18].
The considerations that inform the requirements for admissibility of propensity evidence at common law may be relevant in deciding whether to exclude the evidence as unfair under s 130. For example, it seems unlikely that evidence that would satisfy the common law requirements for admissibility as propensity evidence would be excluded as unfair to the person charged under s 130, where that evidence is otherwise admissible under s 132B.
Also by way of example, in Harriman, Brennan J, in dealing with propensity evidence of prior involvement in buying and selling heroin and the use of such evidence to support an inference of continuing participation in the acts that constituted the offence charged, had regard to “the extent and duration of past participation, the proximity in time between the past participation and the offence charged and the whole of the circumstances of the case”.[38] The power of proximity in time, as a relevant factor, is further illustrated by McHugh J’s analysis of the distinction between res gestae cases and circumstantial evidence cases in Harriman.[39]
[38]Harriman v The Queen (1989) 167 CLR 590, 596.
[39]Harriman v The Queen (1989) 167 CLR 590, 628-634.
In the present case, the evidence was that the deceased suffered any of the rib fractures in the period of between seven days and three weeks before 3 November 2011 when he suffered the cardio-respiratory arrest. If it were accepted that the appellant caused any of the rib fractures, by compressing the deceased’s ribcage or applying direct force to the front of his chest, that supported the conclusion that he may have acted towards the deceased with violence in the few weeks prior to the day of the events which caused the death, which in turn supported the likelihood of the inference that the appellant acted towards the deceased with violence on 3 November 2011.
A greater difficulty lay in assessing the appellant’s involvement as the person who caused the rib fractures, because that depended on an inference based on circumstantial evidence, including the appellant’s wife’s testimonial evidence that tended to exclude her as the person who may have caused the rib fractures. However, under s 132B, the prosecution does not have to cross the threshold for admissibility that if the rib fracture evidence is accepted there is no rational view of the evidence consistent with the innocence of the appellant, because the evidence is only to be deployed as evidence of the history of the relationship. But, depending on the content of the relevant evidence of the history of the domestic relationship and the other evidence to be led at the trial, it may be even more likely, if that threshold is not crossed, that the relevant evidence of the history of the domestic relationship will have a prejudicial effect which is disproportionate to its probative value.
The appellant submits that the prosecutor’s reliance upon the appellant’s involvement in the events of 3 November 2011, as supporting the inference that he caused the rib fractures, was impermissible. However, that submission was made at the pre-trial hearing of the application to exclude the rib fracture evidence.[40] The appellant does not submit that the prosecution addressed the jury on that basis at the trial or that the trial judge’s directions to the jury proceeded on that basis. Accordingly, that point may be put to one side, because it did not affect the course of the trial.
[40]AB 55 lines 16-22.
In the context of admissibility of propensity evidence at common law, the question may arise whether the propensity evidence is a link in the chain of proof of the offence charged, and whether, if it is, the evidence should not be acted upon unless it amounts to proof of the facts of the alleged propensity beyond reasonable doubt.[41] This consideration may also be relevant in deciding whether to exclude evidence under s 130 as unfair to the person charged.
[41]BBH v The Queen (2012) 245 CLR 499, 549-550 [167]-[168].
An allied point arose in R v Reed.[42] In that case, the appellant was charged with murder of a sixteen month old infant. Evidence was admitted, under s 132B, as history of the domestic relationship between the appellant and the infant, of injuries sustained resulting in bruising to the infant’s buttocks two weeks prior and facial grazes sustained in the day or so before he sustained traumatic abdominal injuries that caused death. The trial judge directed the jury that they were only able to use that evidence as relevant to whether there was a history of violence by the appellant towards the child and they must give separate consideration to whether the appellant committed the offence charged.[43] It was held that it was not necessary for the trial judge to direct the jury that they could use the evidence as proving a history of violence only if they were satisfied beyond a reasonable doubt of those alleged facts.[44]
[42][2014] QCA 207.
[43][2014] QCA 207, [60].
[44][2014] QCA 207, [64].
It follows that not all evidence tendered under s 132B must be excluded under s 130 unless it is capable of proof beyond reasonable doubt. However, in my view, it will be relevant to the exercise of the discretion to exclude evidence under s 130 as unfair if the proof of the facts intended to establish the history of the domestic relationship is highly likely to prejudice the jury against the person charged and to be used by the jury in a process of direct or relatively direct propensity reasoning.
Another relevant factor in exercising the discretion under s 130 is the probative strength of the evidence, if accepted, compared to its prejudicial effect. If accepted, the rib fracture evidence would support an inference that during the few weeks before 3 November 2011 the appellant, on either one or two occasions, applied force to the deceased’s ribs by way of encircling his ribcage or directly to the front of his chest that caused the rib fractures. Acceptance of those facts would make it more likely that the fatal injuries suffered by the deceased are to be explained by an application of force to the deceased’s body by the appellant, when the jury came to consider the question whether the appellant caused the deceased’s death. The context was one where the appellant denied any involvement in the injuries that caused the death of the deceased. In the absence of evidence of some other rational or reasonable cause of the deceased’s injuries, the rib fracture evidence was likely to have a high level or degree of cogency that would see its probative force outweigh its prejudicial effect, in accordance with the Pfennig test. Subject to the points to be made below, that would support its admissibility.
Two other features of the rib fracture evidence should be noticed. First, the rib fractures appeared to have occurred without any significant manifestation by way of markings upon the deceased and without anyone noticing that the deceased was unusually distressed or possibly in pain. Second, the time or times at which they occurred was inexact. Accordingly, it was all the more difficult to conclude that it was the appellant who was responsible for the rib fractures. Logically, that conclusion depended upon establishing that there was no-one else who might have caused them. The prosecution’s case was that the appellant was sufficiently identified as the person who caused the rib fractures by acceptance of the appellant’s wife’s evidence that it was not she.
Her evidence was that, on 28 September 2011, she and the deceased were discharged from hospital, after his birth, and went to live with the appellant at their home from then on. The appellant had taken leave from his employment for a period of three months. For a few weeks after the birth, first members of the appellant’s family and then members of her family stayed at their home. Her parents left the home on or about 23 October 2011[45] and the appellant went to Adelaide to attend a medical course over the days between 26 and 29 October 2011,[46] before returning home and continuing his leave until 3 November 2011. Over the whole period, the appellant’s wife and the appellant split the care of the deceased “fifty-fifty”.[47]
[45]AB page 1074 line 20.
[46]AB page 1090 lines 20-25.
[47]AB page 1030 line 38.
On 23 October 2011, the appellant’s wife went to a baby shower given for a friend for a couple of hours, leaving the deceased in the appellant’s care.[48] On her return, the appellant told his wife that while she was out the appellant heard a “big scream”[49] coming from the deceased “and there was a little bit of a blood spot in his eye”.[50]
[48]AB page 1032 line 40.
[49]AB page 1033 line 25.
[50]AB page 1033 lines 27-28.
Between 26 October 2011 and 29 October 2011, while the appellant was in Adelaide, she was manoeuvring around the side of her bed with the deceased in her arms, became unbalanced and fell towards the bed, falling more than 30 centimetres. She pushed the deceased away from her body placing him on the bed with her hand over the top of his ribs with her forearm underneath and running along his back.[51] Generally speaking, she had difficulty getting the deceased in and out of his car seat from time to time.[52] But otherwise she did not hit, harm, shake or strike the deceased.[53]
[51]AB page 1049 line 40 – 1050 line 40 and page 1093 line 40 – 1094 line 42.
[52]AB page 1051 lines 17-36.
[53]AB page 1049 line 40 and page 1051 lines 18-27, 38 and 40.
A number of family members who were staying at the home three weeks before 3 November 2011 and up to 23 October 2011 were called by the appellant as witnesses at the trial. None of them was asked whether they might have encircled the deceased’s rib cage or applied force to the front of his chest.
Some assistance may be obtained from both Roach and Reed. In both cases evidence of violence within the history of a domestic relationship was admitted under s 132B for the purpose of showing a disposition of the defendant to be violent towards (and thereby injure) the victim. Compare also R v Mills,[54] as to relationship evidence at common law.
[54][1986] 1 Qd R 77, 83-87.
However, there is a possible distinction to be drawn between those cases and the present case. There was no doubt in any of those cases that the victim had suffered trauma caused injury in the episode that constituted the subject of the charged offence. The question was whether it was the defendant who had inflicted the trauma or whether there was some other accidental application of force. In the present case, the central issue of fact was whether the medical findings supported the prosecution’s thesis that they were produced by trauma inflicted by the appellant upon the deceased on 3 November 2011, rather than the defence thesis that the prosecution had not proved beyond reasonable doubt that they were not produced by the deceased’s cardio-respiratory arrest or some other underlying condition.
Assistance may also be obtained from a recent decision of the High Court, R v Bauer,[55] as to tendency evidence under the Victorian statutory provisions regulating the admissibility of such evidence, as applied to a single complainant sexual offence case. In that context, a number of cases at common law have considered the admissibility of prior sexual misconduct by a defendant towards the complainant as relationship evidence, probative of a sexual interest in the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant’s evidence of the charged offence.[56] Of course, post-Pfennig, admissibility of such evidence as propensity evidence at common law is permitted only where it supports the inference that the defendant is guilty of the offence charged and permits no other innocent explanation.[57] As to the probative effect of prior sexual misconduct, the court in Bauer held:
“... evidence that an accused has committed one sexual offence against a complainant taken in conjunction with evidence of another sexual offence against the complainant suggests that the accused has a sexual interest in or sexual attraction to the complainant and a tendency to act upon it as occasion presents. And as has been seen, that is so because, where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual act with him or her, it is the more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents.”[58]
[55](2018) 92 ALJR 846.
[56](2018) 92 ALJR 846, 860 [46].
[57](2018) 92 ALJR 846, 861 [52].
[58](2018) 92 ALJR 846, 864 [60].
An important factor in exercising the discretion whether to exclude the rib fracture evidence in the present case under s 130 was that acceptance of the rib fracture evidence as showing a disposition of the appellant to injure the deceased was attended with a risk of unfair prejudice to the appellant of using that evidence as probative of the fact that the appellant caused the death of the deceased without the jury being required to be satisfied beyond reasonable doubt that the appellant caused the rib fractures.
In Bauer, the High Court considered whether the trial judge was required to direct the jury that they needed to be satisfied of uncharged acts beyond reasonable doubt, observing that “[o]rdinarily, proof of the accused’s tendency to act in a particular way will not be an indispensable intermediate step in reasoning to guilt”, and that where the common law would require proof beyond reasonable doubt that law has been altered in Victoria by statute.[59] In the course of that consideration, the court referred, by footnote,[60] to a number of passages from HML that are relevant, in my view, to the question whether the rib fracture evidence should have been excluded under s 130 as unfair to the appellant in the present case.
[59](2018) 92 ALJR 846, 868 [80].
[60](2018) 92 ALJR 846, 868 [80] footnote 82.
Thus, in HML, Hayne J said:
“It was pointed out in Pfennig that the purpose of evidence of other discreditable or criminal conduct that is admitted at trial is to establish a step in the proof of the prosecution case; if the evidence is not capable of doing that, it is to be rejected as inadmissible. Because this is the basis for admitting the evidence (that the jury may use it as a step towards inferring guilt), the jury may use it in that way only if persuaded of its truth beyond reasonable doubt. The direction in this case about what standard of proof was to be applied was correct.”[61] (footnote omitted)
[61](2008) 235 CLR 334, 406 [196].
And:
“If [evidence] meets the test in Pfennig, it may, but need not, be used by the jury as a step in reasoning towards guilt. If it is used by the jury as a step in reasoning towards guilt, the jury must be satisfied beyond reasonable doubt of the premise for that chain of reasoning.”[62]
[62](2008) 235 CLR 334, 416 [244].
In my view, having regard to the nature of the rib fracture evidence and the use to which the prosecution intended to put it, it was unfair to the appellant, in the circumstances of this case, for the rib fracture evidence to be placed before the jury as relevant evidence of the history of the domestic relationship on the basis that they did not have to be satisfied beyond reasonable doubt that the appellant caused the rib fractures before they used that evidence as probative in relation to whether the defendant caused the death of the deceased.
What is “unfair” in the context of s 130 may be questioned. Neither of the parties made submissions directed to that question. In considering the Victorian statutory discretions to exclude evidence for its “prejudicial effect”, or as “unfairly prejudicial” or because of “unfair prejudice” the High Court in Bauer said of those expressions in their statutory contexts that:
“… each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.”[63]
[63](2018) 92 ALJR 846, 867 [73].
In the present case, as the trial judge did not propose to direct the jury that they could only act on the rib fracture evidence if they were satisfied beyond reasonable doubt that the appellant caused the rib fractures (having regard to the directions ultimately made and those foreshadowed by his decision not to reject the evidence under s 130), in my view the trial judge should have excluded the rib fracture evidence under s 130. Alternatively, if the trial judge proposed not to exclude the rib fracture evidence he should have directed the jury that they must be satisfied beyond reasonable doubt that the defendant caused the rib fractures before taking them into account. As that was not proposed, the rib fracture evidence should have been excluded.
Review of whether or not the trial judge erred in exercising the discretion to exclude the rib fracture evidence under s 130 by way of appeal under s 668D and 668E of the Criminal Code is an appeal from a “discretionary” decision not to exclude the evidence. It was not argued by the respondent that if this court were of the view that the rib fracture evidence might have been excluded under s 130, R v Mackie[64] suggests that still this court “[should] not lightly interfere with a judge’s exercise of his discretion to admit relevant evidence”. The point does not seem to have arisen under s 130 or in cases in this jurisdiction. At least, the court was not referred to any cases of that kind. I note that the author of Cross on Evidence opines that “[i]t is much easier to avoid… injustice… if exclusion is recognised to be by application of a rule, subject to the ordinary processes of appellate review”.[65] In my view, whether the question is approached on one basis or the other, in this case the rib fracture evidence should have been excluded under s 130.
[64](1973) 57 Cr App R 453, 465.
[65]Heydon, Cross on Evidence, Australian edition, Lexis Nexis Butterworths, 21,105 [21240].
It is possible, now, to return to the respondent’s submission that the rib fracture evidence was properly admissible, in any event, as propensity evidence (including as to the issue of murderous intent) and as going to identification of the person inflicting the fatal trauma.
In my view, the rib fracture evidence was not admissible to prove the identity of the person who inflicted trauma upon the deceased on 3 November 2011, because there was no issue at the trial that if the deceased sustained trauma shortly before his cardio-respiratory arrest on that day, that trauma occurred when only the appellant was with him. The identity of the person who caused any trauma before the cardio-respiratory arrest was not in issue. The case relied upon by the respondent in this regard, R v MacPhee,[66] does not assist in the circumstances of this case.
[66][2005] QCA 175, [76].
Whether the rib fracture evidence was admissible as propensity evidence that the appellant caused the death of the deceased and thereby was guilty of an unlawful killing is more difficult. In R v Reed,[67] this court held that it was to the advantage of Reed that evidence excluded as propensity evidence for the purpose of proving the intention of Reed to kill or do grievous bodily harm and as negativing any defence of accident was admitted only as evidence of the history of the domestic relationship between Reed and the infant he was convicted of unlawfully killing. But, in my view, in this case, unlike Reed, the likely unfairly prejudicial effect of the rib fracture evidence in the context of the other evidence was such that it should have been excluded as evidence of the history of the domestic relationship. Conversely, if it was to be admitted as propensity evidence to prove that the appellant caused the deceased’s death or that he did so intending to kill him or to do him grievous bodily harm, it was necessary that the jury be directed that they must be satisfied beyond reasonable doubt that the appellant caused the rib fractures before they used that evidence for either of those purposes. In this case, the appellant was not advantaged by the rib fracture evidence being admitted only as evidence of the history of the domestic relationship.
[67][2014] QCA 207, [42] and [68].
Lastly, the respondent submits that because the rib fracture evidence was admissible as propensity evidence, the proviso at s 668D(1A) applies. The submission was not directly made in relation to a finding of error in not excluding the rib fracture evidence under s 130, but was made in relation to any error in the trial judge’s directions as to the use to which the evidence might be put.
Had the rib facture evidence been excluded, the appellant would not have been subject to its use at all, and in particular would not have been subject to the non-expert propensity reasoning relied on by Dr Lamont previously mentioned, leaving aside whether that evidence or other evidence of Dr Lamont or any of the other expert witnesses should have been ruled inadmissible because of that process of reasoning.
Alternatively, had the rib fracture evidence been admitted as propensity evidence, the appellant would have been entitled to a direction that the jury must be satisfied beyond reasonable doubt that the appellant caused the rib fractures before they used that evidence as probative in relation to whether the defendant caused the death of the deceased.
Accordingly, I am not “persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict”.[68] This is a case where “the natural limitations of proceeding on the record do not permit the appellate court to attain that satisfaction”.[69] This is not a case to which the proviso should be applied.
[68]Lane v The Queen (2018) 92 ALJR 689, 695 [38].
[69]OKS v Western Australia [2019] HCA 10, 10-11 [31].
In my view, the appeal should be allowed on ground 2(b), the conviction should be set aside and a new trial should be ordered.
Other grounds
Because of my conclusion on ground 2(b) of the appeal, it is unnecessary to decide ground 2(c).
However, if the appellant were entitled to succeed on ground 1 of the appeal that the verdict is unreasonable or cannot be supported having regard to the evidence, he would be entitled to an order of acquittal, not merely an order for a new trial.
Crow J’s reasons summarise the evidence upon this ground of appeal to the extent that it is unnecessary for me to repeat it. However, in addition to the matters relied upon in those reasons, I would add the following.
The prosecution called a number of expert medical witnesses who gave evidence of their findings and opinions. There were numerous alternative possibilities as to particular aspects of the medical findings and the possible explanations for those findings that the appellant raised in cross-examination of those witnesses. Many of them do not require mention in order to decide the questions raised upon the appeal. Surprisingly, although the appellant’s written submissions were extremely detailed and lengthy, comprising 28 pages of submissions and a further 72 pages of summary of the medical and expert opinion evidence, the appellant’s submissions on ground 1 of the appeal was left on the somewhat vague basis that the “whole of the evidence yields a number of reasonable explanations for” the deceased’s cardio-respiratory arrest or the medical findings that followed it.
The scope of the power of this court to allow an appeal on the ground that the jury’s verdict is unreasonable was reaffirmed in R v Baden-Clay[70] with the warning that:
“…a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. "”[71]
[70](2016) 258 CLR 308, 329 [65].
[71](2016) 258 CLR 308, 329 [66].
Baden-Clay also reiterated the principles for a case where proof of the offence depends upon circumstantial evidence, from which the defendant’s guilt is to be inferred, as follows:
“The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
‘When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen.’”[72] (footnotes omitted)
[72](2016) 258 CLR 308, 323 [46].
Crow J’s reasons show that there was conflicting evidence on a number of matters which it was within the province of the jury to decide as to whether they were satisfied beyond reasonable doubt that the evidence was inconsistent with any reasonable hypothesis other than the guilt of the appellant.
However, there are some relevant aspects of the evidence that are not raised in Crow J’s reasons. In particular, the precise aetiology of the death of the deceased was not necessarily consistent among the expert medical witnesses called by the prosecution who gave evidence that the death was caused by trauma either from shaking of the deceased, or impact to the deceased’s head, given that there was no visible manifestation of bruising or other injury externally, in particular to the structures and tissues of the deceased’s neck or to the extra-cranial tissues of the head, but having regard to the medical findings of injuries inside the deceased’s cranium.
As already mentioned, sometimes the process of causation in fact is described as a causal chain, with each step in the chain constituting a link. The metaphor may be apt, but for clarity I prefer to avoid it. Working backwards from each outcome in the process to the cause of the outcome, step by step, the witnesses generally agreed that the deceased’s death was caused by hypoxic-ischaemic injuries to his brain that were caused by the cardio-respiratory arrest. These steps were not generally controversial at the trial.
Next, the prosecution’s expert witnesses generally agreed (although some of the appellant’s medical expert witnesses differed or sought to differ on this point) that the cardio-respiratory arrest was caused by downward pressure on the deceased’s brain stem into the base of his skull.
From this point, some of the prosecution’s witnesses’ evidence differed among themselves. Some opined that the downward pressure was caused by generalised brain swelling, but not by the subdural and subarachnoid swelling;[73] others that it was caused by subdural haemorrhaging on the surface of the brain and subarachnoid haemorrhaging in the brain,[74] or a combination of those things, as medical findings.
[73]AB page 854 lines 33-40; page 881 lines 18-27.
[74]AB page 491 line 44 – page 492 line 2; page 527 lines 9-11.
In this very brief summary, I have not included the medical findings, by those qualified to make them, that at the time of his death the deceased suffered from extensive retinal haemorrhaging and retinoschisis. That is because although those findings are relevant to whether the other injuries were caused by trauma they were not part of the mechanism of the cause of death as such, and may be put to one side for the purpose of the present analysis.
As to subdural and subarachnoid haemorrhaging, some opined that it was caused by tearing of the bridging blood vessels over the surface of the brain.[75] Those experts opined also that the cause of the tearing of the bridging blood vessels was either rotational brain movement within the cranium from hyperflexion and extension of the deceased’s neck joint, caused by shaking, or deceleration forces from an impact of the deceased’s head.[76] Hence, the conclusion was that the deceased’s death was caused by trauma by shaking or some other impact.
[75]AB page 521 lines 1-5; page 575 lines 5-10; 855 lines 10-15.
[76]AB page 856 lines 20 – page 857 line 10.
There was also some evidence that trauma generally might have caused generalised brain swelling.[77] However, other evidence was that shaking and/or impact may produce subdural and subarachnoid haemorrhaging and generalised brain swelling.[78]
[77]AB page 731 line 40 – page 732 line 10.
[78]AB page 859 lines 4-24; page 861 lines 20-29; page 884 line 30 – page 885 line 18; page 961 lines 9-45; page 978 line 2 – page 979 line 45.
There were, in the result, some uncertainties in the precise causal mechanism that led to the death: first, whether the outcome of generalised brain swelling was caused by shaking or impact or both; second, whether the downward pressure on the brain stem was caused by the subdural and subarachnoid swelling or generalised brain swelling or some combination thereof; third whether death was caused by shaking or impact or both.[79]
[79]AB page 861 lines 20-29.
The appellant submits that one of the principal experts for the prosecution, Dr Donald, gave evidence that the generalised brain swelling might have been caused by the hypoxic-ischaemic injuries that were caused by the cardio-respiratory arrest,[80] rather than the cardio-respiratory arrest being caused by the brain swelling that depressed the brain stem in to the base of the skull and caused the hypo-ischaemic injuries. However, neither that nor the erroneous assumption that Dr Donald had made that pre-mortem bruising of the deceased was observed on post mortem examination,[81] dissuaded Dr Donald from his opinion that the findings were due to injury and nothing else.[82] The same possibility was put to another of the other expert medical witnesses called by the prosecution whose answer was to question what caused the deceased’s cardio-respiratory arrest, if it was not the brain swelling.[83]
[80]AB page 980 line 22 – page 981 line 20.
[81]AB page 983 lines 10-45.
[82]AB page 993 line 35 – page 994 line 10.
[83]AB page 757 lines 15-25.
Despite the uncertainties, in the result, I have formed the view that it was open to the jury to accept the evidence of the expert medical witnesses called by the prosecution so as to find, beyond reasonable doubt, that the appellant’s shaking of the deceased or causing some other impact to the deceased’s head was the only rational inference as to the cause of the deceased’s death.
I note also that the appellant’s outline of oral argument and oral submissions were organised on the footing that ground 2 of the appeal was presented for consideration first. Accordingly, in reaching my conclusion on ground 1, I did not exclude the rib fracture evidence from consideration, because I have not formed the view that the rib fracture evidence must be excluded from consideration as propensity evidence on a new trial.
The other point advanced by the appellant orally,[84] is that ground 1 should be sustained on the basis that it was not open to the jury to answer “yes” to the question whether they were satisfied beyond reasonable doubt either that the appellant did not intend or foresee that death of the deceased was a possible consequence of his actions or that an ordinary person would not reasonably foresee death as a possible consequence of those actions.
[84]It was also hinted at in paragraph 58 of the appellant’s outline of argument, although not developed there.
The argument developed was that conclusion is necessary because it was unclear what the actions of the appellant were that caused the death, including how much force his actions applied to the deceased, and because the evidence was unclear as to how much force was required to be applied to cause death by shaking.
The evidence did refer in a number of places to the required force, and it is fair to say that it did not establish with exactness what force was required before death was a possible consequence of shaking.[85]
[85]AB pages 857 line 40 - 858 line 42; page 896 line 17; page 936 line 40; page 968 lines 11-16; page 979 lines 26 – 47; page 660 line 42 – page 661 line 4; page 669 line 5; and page 710 line 35 – page 711 line 3.
I note that although the trial judge directed the jury on the question whether the defence of accident was negatived, the appellant’s counsel did not rely on it in his submissions to the jury and there is no reason to think that was not a deliberate tactical decision.
I note also that the appellant’s point before this court is not that there is a difference between the evidence as to what force may have been applied to the deceased by the appellant compared to other evidence about some accepted standard of force that would be foreseen or reasonably foreseeable as possibly causing death of a six week old baby by shaking.
In any event, in my view, it was open to the jury to decide beyond reasonable doubt that it was not satisfied that the ordinary person would not reasonably foresee that death was a possible consequence of violently shaking a six-week old baby.
In the result, I would dismiss ground 1 of the appeal but allow the appeal on ground 2(b). I would order that the appellant’s conviction be set aside and that there be a new trial.
CROW J: Matthew Riley Baxter was born on 24 September 2011 in the Townsville Mater Hospital. Matthew died[86] when his life support was turned off at the Townsville General Hospital on 6 November 2011.
[86]Aged six weeks and one day.
On 3 November 2011 Matthew was evacuated by way of ambulance from his home to the Townsville General Hospital where he was found to be suffering from a traumatic brain injury. Attempts to resuscitate Matthew were not successful. On the morning of 3 November 2011, Matthew’s father, the appellant, had the sole care and custody of him. Matthew’s mother, the appellant’s wife, left Matthew in the care of the appellant prior to Matthew falling ill.
No other witnesses were present on the morning of 3 November 2011. The appellant gave sworn evidence that he was a loving and caring father who did not harm his son. The Crown could only prove their case circumstantially on medical evidence. The Crown particularised the death of Matthew as being caused by the conduct of the appellant as the shaking or striking of Matthew causing him to collide with another object or a combination of those mechanisms.
The Trial – 17 October 2017 to 15 November 2017
The trial by jury was conducted over 23 days. In the first 14 days, the Crown proved its medical evidence and called several lay witnesses, including Ms Baxter who was the wife of the appellant and mother of the deceased child. In order to prove its case, the Crown called multiple medical and biomechanical experts.
The defence case consumed days 15 to 22 of the trial. The first defence witness was the appellant who swore he was a capable and loving father who did not injure his son Matthew. In addition, the appellant called ten family members as character witnesses to support the appellant’s credit who also testified their observations of the appellant as a loving, caring father.
Had the jury accepted the evidence of the appellant as supported not only by the ten family members he called but also supported by his wife[87] the jury would have acquitted the appellant, as the only possible way the Crown could prove its circumstantial case was by reference to expert medical and biomechanical evidence. The defence also called seven experts to support the appellant’s version that he did not harm his son.
[87]Who was called in the Crown case.
The defence called Michael Laposata,[88] Carl Wigren,[89] Julie A Mack,[90] Marvin Elliott Miller,[91] Ronald Auer,[92] Chris Alan Van Ee[93] and David Ayoub.[94] Again had the jury accepted the evidence of any of the seven experts called in the appellant’s case it ought to have acquitted the appellant.
[88]Chairman of the Department of Haematology and Pathology at the University of Texas.
[89]Forensic pathologist from Seattle Washington.
[90]Paediatric radiologist.
[91]Professor of Paediatrics from Ohio.
[92]Clinical Neuro Scientist from Canada.
[93]Professor from the Wayne State University, a biomedical engineer.
[94]A radiologist.
The jury acquitted the appellant of murder but found the appellant guilty of manslaughter.
The appellant has appealed against his conviction on the following grounds:
“1.The verdict is unreasonable or cannot be supported having regard to the evidence as:
(a)The evidence did not establish traumatic injury;
(b)There was no proof that the appellant caused Matthew Baxter to collapse;
(c)There was insufficient evidence to prove beyond reasonable doubt that the medical findings relevant to cause of death could be attributed to anything done by the appellant.
2.His Honour, the Learned Trial Judge, erred:
(a)in ruling admissible, pursuant to s 132B of the Evidence Act 1977 (Qld), evidence of rib fractures sustained by the deceased, alternatively;
(b)in failing to exclude, pursuant to s 130 of the Evidence Act 1977 (Qld), evidence of fractures sustained by the deceased, alternatively;
(c)in the directions given to the jury as to the manner in which evidence of the rib fractures could be used.”
Ground 1:The verdict is unreasonable, or cannot be supported by the evidence
Section 668E(1) of the Criminal Code 1899 (Qld) provides:
“668E Determination of appeal in ordinary cases
(1)The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.”
In Attorney-General v B[95] Wilson J said:
“Our system of criminal law accords primacy to the decision of a jury on questions of fact, subject only to limited rights of appeal…”
[95][2003] 1 Qd R 114 at 133 [84].
In R v Shoesmith[96] Fraser JA said:
“… The test is whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The Court must conduct an independent review of the evidence, but it must also bear in mind that the jury had the benefit of seeing and hearing the witnesses give their evidence and it must accord respect to the jury’s resolution of the contested factual questions reflected in the guilty verdict. …”
[96][2011] QCA 352 at [30]. Footnotes omitted.
As identified in R v Shoesmith[97] the task for the Court of Appeal on review is to conduct an independent review of the evidence in order to determine whether upon “the whole of the evidence” it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In doing so, respect must be accorded to the jury’s resolution of contested factual questions reflected in the guilty verdict.
[97][2011] QCA 352.
In support of its argument, the appellant has provided a 72-page summary of the medical and expert opinion evidence arguing that the evidence did not support the verdict.
Prior to considering the relevant evidence it is helpful to understand that it was not an issue at trial that Matthew suffered a cardiac and respiratory arrest which caused a hypoxic ischaemic injury which in turn caused the death of Matthew. The essential factual issue to be determined beyond reasonable doubt by the jury at trial was the cause of the cardiac and respiratory arrest. Was it proven beyond reasonable doubt, as the Crown alleged, by the shaking or striking of Matthew or causing him to collide with another object or a combination of those mechanisms? Or was it as the appellant alleged, a cardiac and respiratory arrest that occurred independently of any criminal act of the appellant.
The appellant[98] submits that on a review of the whole of the evidence there are several reasonable explanations for Matthew’s collapse “and for that which was subsequently learned in medical examinations”. These leave open, it is argued, a reasonable possibility that it was not the appellant who caused the death of his son and it was not therefore open for the jury to hold that the appellant’s guilt had been proved beyond reasonable doubt. The appellant then cites SKA v The Queen[99] in support of its proposition of law.
[98]See paragraphs 12 to 85 of the appellant’s written submissions.
[99](2011) 243 CLR 400 at 409 at [22] – [24] per French CJ, Gummow and Kiefel JJ; M v The Queen (1994) 181 CLR 487 at 492 – 495 per Mason CJ, Deane, Dawson and Toohey JJ.
Where the evidence accepted by the jury leaves open a reasonable possibility that it was not the appellant who caused the death of his son then it is clear that it was not open for the jury to hold the appellant’s guilt had been proven beyond reasonable doubt. However, the test as cited above is whether on the whole of the evidence it is open for the jury to be satisfied beyond reasonable doubt, that the appellant was guilty. As this test recognises, the jury may prefer one body of expert evidence over another, but in order to convict, the jury must be satisfied to the standard of beyond reasonable doubt.
The jury is duty bound to consider all of the evidence, assess it and in doing so bring to bear their respective life experiences and common sense. Each of the seven experts called in the appellant’s case opined Matthew’s death was caused by a process which is consistent with a natural cause and absent any act of the accused. Absent a body of contrary evidence, the tribunal of fact was, no doubt, duty bound to acquit, however, there was a large body of contrary expert evidence.
It is helpful to recall the common law requirements for the reception of expert evidence. They are as set out in the comprehensive reasons of Heydon J in Dasreef Pty Ltd v Hawchar.[100] It is also important to note that Heydon J cited both civil and criminal cases in describing the logic behind the reception of expert evidence and the importance of the Court (whether constituted by a judge or by a judge and jury) guarding its function as the decision maker and not delegating this important role to an expert or panel of experts.
[100](2011) 243 CLR 588 at 612 – 624 [61] – [94].
Expert evidence is not admissible unless it concerns matters that are outside the ordinary human experience such that a person would not be able to form a “sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area”.[101] Where a field of expertise is established it is then necessary to prove that the person providing evidence is qualified in that science. It is then necessary for the party attempting to prove the expert opinion to ensure the expert clearly sets out the assumptions upon which the expert opinion is based (the assumption identification rule) and then it is necessary for the party to prove the assumptions (proof of assumption rule). The next and perhaps most important requirement of admissibility of expert opinion is the reasoning rule. That is, the expert must state his or her process of reasoning so that the triers of fact (a judge or a jury) are placed in a position where they can judge whether they accept the reasoning process of the expert called by one party or another party and thus form a “sound judgment”.
[101]R v Sica [2014] 2 Qd R 168 at 194 [127]; R vBonython (1984) 38 SASR 45.
In a jury trial, matters of admissibility of evidence are matters for the judge. Accordingly, where an expert’s reasoning is not stated or is not logical, the expert evidence is not admissible, that is the jury will not hear it all. In that sense whenever expert evidence is admitted in a criminal trial, it must always be based on a reasoning process and in that sense is always “reasonable”, that is “able to be reasoned”. However, the law is not that whenever “reasonable” defence medical evidence is technically admissible the accused must be acquitted because the reasoned expert evidence called in the defence case admits to a possibility of innocence. Expert evidence is to be judged by the trier of fact in the careful way in which the trier of fact tries all other evidence. The common law admissibility rules are designed to equip a trier of fact with the means to determine whether the evidence of any expert is accepted or rejected, in whole or in part.
That any expert may give opinion evidence which is admissible and admits to a reasonable possibility consistent with innocence is not the test. This is because the jury must take into account the whole of the evidence, and the jury, as the tribunal of fact, determines for itself which expert evidence it accepts and which expert evidence it rejects.
Klamo’s case differs considerably from the present case because Klamo admitted to a minor shaking of his infant child some weeks before the child passed away. In that case, however,[320] the medical evidence did not purport to establish any informative conclusion as to the cause of death. The medical evidence was materially different. In the present case, the appellant denies any shaking or ill treatment of Matthew, yet Matthew was shown to suffer from catastrophic injuries. It is the degree of injury sustained by Matthew in the present case which has compelled Dr Skellern and Dr Donald to opine that the injuries were in fact caused by shaking.
[320]See paragraph 53 of the appellant’s written outline.
It has not been demonstrated on review of the whole of the evidence that it was not open to, or unreasonable for, the jury to have accepted the prosecution case, and accordingly it cannot be concluded that the verdict is unreasonable, nor unsupported, by the evidence.
Ground 2(a): Error admitting evidence of rib fractures sustained by the deceased
After Matthew was admitted to the Townsville General Hospital on 3 November 2011, a series of x-rays were taken. The x-rays revealed two fractures to the posterior ninth and tenth left ribs which radiologically were shown to be in a state of advanced healing and were estimated to be about three weeks old at the time of the x-rays (that is occurring at or around 13 October 2011).
The x-rays revealed Matthew suffered from 15 anterior rib fractures, some of which showed evidence of healing, and from which it could be estimated that the rib fractures occurred seven to ten days prior to the date of x-rays being taken on 3 November 2011 (that is the 15 anterior fractures are likely to have been suffered between 24 and 27 October 2011).
The appellant brought a pre-trial application, pursuant to s 590AA of the Criminal Code 1899 (Qld) seeking the exclusion of the evidence of the rib fractures and the opinion evidence of the cause or likely mechanism of the rib fractures.
The pre-trial hearing was conducted on 10 October 2017 and included oral evidence from Dr Van Ee and extensive written and oral submissions. On the application, defence counsel successfully argued that the evidence of the rib fractures ought not to be admitted on the basis that they demonstrated propensity to be violent to Matthew. The Crown however succeeded in persuading the primary judge that the rib fracture evidence was admissible pursuant to s 132B of the Evidence Act 1977 (Qld). Defence counsel then argued that the rib fracture evidence ought to be excluded pursuant to s 130 of the Evidence Act 1977 (Qld) (as being more prejudicial than probative).
In his argument for the admission pursuant to s 132B of the Evidence Act 1977 (Qld), the prosecutor conceded that appropriate directions would need to be provided by the trial judge to the jury to ensure the proper use of the rib fracture evidence.[321] The primary judge accepted that submission, ruling:[322]
“Subject to the need to give appropriate directions and warnings to the jury with respect to propensity evidence and appropriate instructions to the jury that the basis of the tender is to serve the purpose of s 132B, that is to provide relevant evidence of a history of a relationship so that the event or events contended by the prosecution on the 3rd of November are not seen as isolated events out of a context, I propose to - I hold this evidence is admissible on this ground.”
[321]AB 59 – 60.
[322]AB 68/41-46.
Section 132B of the Evidence Act 1977 (Qld) provides:
“132B Evidence of domestic violence
(1)This section applies to a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 30.
(2)Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.
(3)In this section—
domestic relationship means a relevant relationship under the Domestic and Family Violence Protection Act2012, section 13.
Note—
Under the Domestic and Family Violence Protection Act2012, section 13, a relevant relationship means an intimate personal relationship, a family relationship or an informal care relationship, as defined under that Act.”
It is plain that the accused and his deceased son Matthew stood in a domestic relationship. The issue to be determined was whether the “rib fracture evidence” was properly construed as “relevant evidence of the history of the domestic relationship”. The touchstone is relevance, the prosecutor submitting that the use of “the rib fracture evidence” was “that it makes the injury sustained on the 3rd of November more intelligible or explicable, for without that context, such events may appear improbable or to have occurred out of the blue.”[323] The primary judge accepted this submission, subject to appropriate directions.
[323]AB 59/20-22.
On appeal the appellant argues that the rib fracture evidence cannot be properly construed as evidence “of the history” of any relationship as:[324]
“[T]hese fractures could have been a residual symptom of events which occurred in the course of the relationship. But to be “relevant”, and to be a part of a “history of” their relationship, it had to be established that the fractures were in fact the product of deliberate trauma inflicted by the appellant upon Matthew.”
[324]Paragraph 99 of the appellant’s written outline.
Section 132B (and s 132A) were inserted by the Criminal Law Amendment Act 1977 (Qld). As observed by Heydon J in Roach v The Queen,[325] the Queensland Legislature evinced a disinclination to embrace the rule in Pfennig v The Queen. Section 132B(2) is curiously drafted insofar as it utilises the word “relevant” as descriptive of the type of evidence which is admissible. That is hardly surprising as no one would suggest that “irrelevant” evidence of a history of a domestic relationship ought to be admitted.
[325](2011) 242 CLR 610 at p 630.
The word “relevant” can only be given meaning if s 132B(2) is read in its broadest form. That is evidence of what may or may not have occurred between participants in a domestic relationship is admissible as long as it bears a sufficient rational connection to an issue at trial.
One can see examples of some use being put to the word “relevant”, in particular as s 132B(1) applies in relation to proceedings against a person in respect of violence, i.e. chapters 28 to 30 of the Criminal Code 1899 (Qld).
It may readily be accepted that evidence of non-violent sexual misconduct between the relevant persons to the domestic relationship, would not be relevant to the issue of the nature of the domestic relationship where the offence charged is one of violence. Even then, one would accept there is room for debate as to what was and what was not relevant. However, on the text of the subsection it is clearly the legislature’s intent that the section would be given a broad meaning.
In Roach v The Queen, the plurality said: [326]
[326](2011) 242 CLR 610 at 616 – 617 [12] – [13]; 621 – 622 [31]; 624 [42] – [43]; 625 [45]. Emphasis added. Footnotes omitted.
“The first requirement which must be fulfilled, for evidence to be admissible, is that it be relevant. The question as to relevance is whether the evidence, if accepted, could rationally affect the assessment by the jury of the probability of the existence of a fact in issue. It may do so indirectly. As Gleeson CJ observed in HML v The Queen, evidence may be relevant if it assists in the evaluation of other evidence.
In Smith v The Queen it was said that evidence is relevant or it is not; no question of discretion arises. If it is not relevant, no further question arises about its admissibility, for irrelevant evidence may not be received. It was then said that:
“These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore: ‘None but facts having rational probative value are admissible,’ and ‘All facts having rational probative value are admissible, unless some specific rule forbids.’”
…
The section therefore has a potentially wide operation. It is not restricted in its application to similar fact evidence tendered to prove propensity on the part of the accused, which is the focus of this appeal. Its purpose is to ensure that in criminal trials evidence of the history of domestic violence is put before a jury, or other arbiter of fact, so long as it is relevant to an issue in those proceedings. Relevance is the only requirement stated for admissibility. It may be assumed that that legislative choice was made with knowledge of the decision in Pfennig, which had been made some two years earlier and which effected an important change. It was not necessary for the rule in that case to be expressly excluded, as the appellant submitted. The sole basis to be applied for admissibility, relevance, is clearly stated.
…
The purpose of the evidence in Pfennig may be contrasted with that for which the evidence in question was tendered in the present case. Here the complainant gave direct evidence both of the alleged offence and of the ‘relationship’ evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant’s conduct on the day of the offence would not appear ‘out of the blue’ to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury.
It is difficult to resist the conclusion that it was intended, by the insertion of s 132B, that persons suffering from domestic violence not be disadvantaged in the giving of their evidence and that they be able to tell their story comprehensively. It may be taken to express a perception that it is in the public interest that they be able to do so and that the prosecution of offences which involve a history of domestic violence be thereby enabled. The reception of the evidence operates more fairly to a complainant. Unfairness to the accused, by its reception, is to be considered by reference to s 130.
…
In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant’s account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant’s conduct in relation to the alleged offence intelligible and not out of the blue.”
Although the present case is factually markedly different from Roach, as the victim is a dead infant, the principles remain the same. In particular, the breadth of s 132B, together with the conclusion discussed by the plurality in Roach[327] that the proper conclusion is that s 132B is intended to allow persons suffering from domestic violence to tell their whole story is still applicable in the present case. The death in infancy of the victim prevents that occurring by way of direct evidence. However, the “rib fracture evidence” coupled with the evidence of Matthew only being in the care of the accused or his mother, Ms Baxter, enjoined with Ms Baxter’s evidence, if accepted by the jury, that she did not ever visit violence upon her infant son, provides proper factual basis for the correct finding that the “fractured ribs” was admissible as directly relevant within the proper meaning of s 132B.
Ground 2(b): Failing to exclude the evidence pursuant to s 130 of the Evidence Act 1977
[327]At 624 [43].
Section 130 of the Evidence Act 1977 (Qld) provides:
“130 Rejection of evidence in criminal proceedings
Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”
As stated by the plurality in Roach,[328] the effect of s 130 is to preserve the common law discretion to exclude evidence on the ground of unfairness which provides a discretion of the trial judge to reject otherwise admissible evidence under s 130 “if a trial judge considers that the evidence will be productive of unfairness in the trial of the accused.”[329]
[328]At 622 [32].
[329]Roach v The Queen (2011) 242 CLR 610 at 622 [32].
The power reposed in a trial judge pursuant to s 130 of the Evidence Act must be exercised according to the ordinary plain words of s 130, that is, it is for the accused to satisfy the trial judge of the unfairness in permitting the evidence to be placed before the jury. This is made plain by the plurality in Roach.[330]
[330]At 622 [32].
Admission of evidence which is prejudicial to an accused cannot, ipso facto, be a basis for unfairness. The adjective “probative” simply means “serving to prove”. If evidence serves to prove an important element in a criminal offence, then it is highly probative and must therefore be additionally highly prejudicial. It cannot, be, “unfair” to the person charged to admit highly prejudicial evidence, simply because it is highly probative.
To paraphrase the reasons of Menzies J in Wilson v The Queen[331] and cited with approval by the plurality in Roach[332] “to shut the jury off from the rib fracture evidence” which may shed light upon the relationship between the appellant and Matthew, would require the jury to make important factual decisions upon what actually occurred on 3 November 2011 in a vacuum; particularly where one would consider it “out of the blue” for any father to act violently towards his infant son.
[331](1970) 123 CLR 334.
[332]At 624 – 625 [44].
As in many cases where s 132B is deployed, the major concern with respect to fairness to the accused relates to the use of that other occasion evidence as showing a propensity to commit the crime which is the subject of the trial. It is because of a concern that juries may use propensity reasoning, directions are important. In this regard, appeal ground 2(b) and 2(c) cannot be considered in isolation.
If there were no adequate directions provided in respect of the rib fracture evidence, then it may readily be concluded that there was “unfairness” to the appellant which ought to have been the subject of the exercise of a s 130 discretion to exclude the “rib fracture” evidence. As the plurality said in Roach, it must therefore be concluded that there is no unfairness as long as there are proper directions to the jury:[333]
“The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true.”
Ground 2(c): Error in directions as to manner in which evidence of the rib fractures could be used
[333]At 625 [47].
In considering whether the primary judge “gave a clear and comprehensible warning about the misuse of the evidence [and explanation as to] the purpose for which it [was] tendered” one must not lose sight of the fact that the trial was conducted with 21 days of evidence from 16 October 2017 until 13 November 2017. There were then two days of closing addresses on 14 and 15 November 2017 before the summing up commenced. The summing commenced on 16 November 2017 which proceeded essentially over the entirety of the following day, 17 November 2017.
The primary judge’s directions therefore must be read as a whole in order to have a proper understanding of their effect.
It could barely be suggested that the primary judge’s directions on the issue of the use of the “rib fracture” evidence was not comprehensive.[334]
[334]The direction is set out in full in AB 1800 – AB 1802.
The primary judge’s direction to the jury was based on a direction approved by the Court of Appeal in R v Mills[335] which provided in part:
“… but if a person, standing in the place of a parent, on one occasion used such force or violence to a child who was a member of his household so as to fracture that child’s arm, you might think that it is common sense that one is entitled to take into account, in deciding whether it is more likely or less likely that that person acted with violence towards the same child in the household on a later occasion; it is really to draw an inference based on one’s knowledge of human behaviour.”
[335][1986] 1 Qd R 77 at 83 – 84.
In the present case, the primary judge’s directions concerning the use of the “rib fracture” evidence are set out in 14 paragraphs on transcript pages 1800 to 1802 of the Appeal Record Book. It is too comprehensive to set out in full detail. Pertinently it included:
“But I must now give you a direction at law about the limited use you can make of the evidence concerning the X-rays of the chest, and the rib fractures, if they be rib fractures, and the related matters, even if you conclude that the Prosecution has proved that Matthew sustained rib fractures as a result of the actions of the defendant.[336]
…
[Y]ou must not use it to conclude that the defendant is someone who has a tendency to commit this type of offence with which he is charged, that is, murder by act or acts resulting in the death, with the intention to cause death or grievous bodily harm or, for that matter, its alternative, manslaughter. It would be quite wrong for you to reason that if you are satisfied that he did the act or acts on the occasions when the rib fractures are alleged to have been sustained, that it is likely that he committed the charge, the offence of murder, on a later occasion as alleged.
In short, you must not reason that because the defendant caused rib fractures, it is likely that he did anything on or about the 3rd of November with the intention to kill Matthew or that he might have an unlawfully killed Matthew. As I said to you, the evidence of rib fractures comes before you as a part of the Prosecution case concerning an allegation of a history of violence within the domestic relationship that included Matthew and the defendant, and it does not come before you as proof of the charge of murder or its alternative, manslaughter.
The evidence forming part of the history of the domestic relationship comes before you with the purpose of rendering intelligible or explicable the conduct that is alleged to have occurred on the 3rd of November 2011 which, in the absence of a history of a domestic relationship, would otherwise appear to be out of character and improbable or to have occurred out of the blue. Further, and this is very important, you must separately consider the evidence relating to the rib fractures independently of and separately from the evidence concerning the injury or injuries alleged to have resulted in Matthew’s collapse and ultimate death. You must not use one body of evidence to bolster the evidence relating to the other issue.”[337]
[336]AB1081/40-44.
[337]AB1802/19-44.
Sight must not be lost of the central plank in the appellant’s defence, namely he was considered a man of good character and credit. The appellant, with the support of his wife and his family and others, provided considerable good character evidence for the appellant. As the trial noted, the appellant’s trial counsel:[338]
“[P]laced great emphasis upon his client’s character and background and he reminded you of the evidence of his client’s military service, the love his wife had for him and regard for him and the regard that the family and extended family had for him and what they said about his good character. And he submitted to you that what is alleged against him is not consistent with the character of the defendant.”
[338]AB1886/4-8.
I have had benefit of the draft reasons of Jackson J, (with whom Fraser JA agrees), who has concluded that the rib fracture evidence ought to have been excluded by the primary judge exercising his discretion under s 130 of the Evidence Act. As Jackson J pointed out Dr Lamont did state in evidence that “[t]he point I’m making is you’re looking at the whole baby. You’ve got all the rib fractures.[339] You’ve got the three or four different features within the brain together as a – as a combination.” However, this evidence was stated by Dr Lamont on the sixty-seventh page[340] of Dr Lamont’s 113 pages of testimony.[341] Dr Lamont’s answer was directed to a question by the primary judge about the “triad” of features the subject of Swedish research on shaken baby syndrome. Importantly fractures are not one of the triad features referred to in that study. Fractures are not mentioned to at all in that study.[342] The question was put by the primary judge in relation to the mechanism of the injury as being potentially caused by “violent shaking”. In that context rib fractures may be seen as relevant, as Dr Lamont put it “as a combination”. However as Dr Lamont explained where there are combinations of features:
“[a] variety of things, my suspicion for non-accidental injury then climbs, unless there’s a good story behind it. They’ve been crushed by – by rolling a car or something. If there’s no good story behind it, then the suspicion climbs. And at some stage you’ve got to say this is – this is highly indicative of – of non-accidental injury.”[343]
[339]AB 600/36.
[340]AB 600.
[341]AB 533 - AB 646.
[342]AB 597; AB 2012 – 2018.
[343]AB 601/1-15.
When that passage of Dr Lamont’s evidence is read as a whole it is, to my mind, nothing more than an assertion by Dr Lamont that where there are a combination of injuries an enquiry is called for to examine the cause of the injuries, that is, one looks to the “story behind it”. In the present case the story antecedent to it from the appellant was that he was a man of good character who loved and cared for his son and did not harm his son in any way. In my view it is not unfair to the appellant to admit evidence of the rib fractures so that the jury were entitled to hear all of the relevant relationship evidence and assess it as directed by the primary judge. The jury heard from Ms Baxter who swore that she did not injure Matthew[344] and that her husband, the appellant, and father to Matthew, was a loving, nurturing and caring father[345] and a calm man[346] of good character.[347]
[344]AB 1049 - AB 1052.
[345]AB 1106.
[346]AB 1107.
[347]AB 1106.
Jackson J concluded that it was unfair to the appellant to admit the rib fracture evidence as relevant evidence of the history of the domestic relationship without instructing the jury that they ought to have been satisfied beyond reasonable doubt that it was the appellant who caused the rib fractures.
In declining to exercise his discretion pursuant to s 130 of the Evidence Act the primary judge said[348] “[i]n my view, a fair trial can be had, provided no improper use is made of the evidence and appropriate instructions and warnings are given.”
[348]AB 69/2-4.
In his direction to the jury the primary judge did not direct the jury that they ought only consider the rib fracture evidence if they were persuaded beyond reasonable doubt that the appellant had caused the rib fractures. The primary judge said in part of his direction to the jury on this issue:[349]
“… There is a debate between the experts which you have to grapple with about the proper interpretation of the X-rays and the other evidence, and what can be drawn – and what conclusions can be drawn. And it is simply not a matter of making a choice between the evidence of one body, for example, the witnesses called by the Prosecution on the issue, and the expert witnesses for the Defence. Even after careful deliberation, if you reject the evidence of the Defence experts on this issue, it does not follow that you can simply proceed to accept the evidence given by the Prosecution witnesses on this issue. You must evaluate the evidence and be satisfied of its reliability and accuracy. One possible outcome after considerable deliberation of both bodies of evidence may be you are not persuaded by either. It is a matter for you. If you are unpersuaded by the Prosecution evidence upon this issue, you should ignore all the evidence relating to the chest X-rays, and the alleged rib fractures, the bleeding in the eye and its possible cause, and with it goes all the evidence about Vitamin D deficiency and so forth. And put all that evidence and that issue out of your mind altogether when deliberating upon whether the Prosecution has proved beyond reasonable doubt that the defendant murdered Matthew.”
[349]AB 1801/20-38.
After the summing up to the jury there was no request for a redirection upon the rib fracture issue and in particular no submission seeking a direction that the jury ought only act upon the rib fracture evidence if it was satisfied the appellant caused the fractures to Matthew’s ribs beyond reasonable doubt. In Roach the plurality (at 49) concluded on the facts in that case that “it was neither necessary nor appropriate for the trial judge to give the jury any direction about the standard of proof to be applied to that evidence”.
In Shepherd v The Queen [350]Dawson J (with whom Mason CJ, Toohey and Gauldron JJ agreed) said:
“Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts … The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.
On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 – the evidence consists of strands in a cable rather than links in a chain it will not be appropriate to give such a warning.”
[350](1990) 170 CLR 573 at 579.
In my view as the rib fracture evidence was not an “indispensable link” in a chain of reasoning towards an inference of guilt and accordingly the trial judge was not required to direct the jury that it could only act on the rib fracture evidence if it was satisfied of its truth beyond reasonable doubt. To require a direction that the jury must be satisfied beyond reasonable doubt that the appellant caused Matthew’s rib fractures elevates that issue to the status of an indispensable intermediate fact when in my view, it is not. It was explained by the primary judge that the rib fracture evidence was admitted as relationship evidence pursuant to s 132B with a comprehensive direction that the evidence could not be used by way of propensity reasoning.
A consideration of directions provided by the primary judge show that they are both clear and include a comprehensive warning with respect to the misuse of the “rib fracture evidence”. The primary judge fully and properly explained the purpose for which the “rib fracture evidence” was tendered. Grounds 2(a), (b) and (c) of the appeal therefore ought not succeed.
I would dismiss the appeal.
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