R v Bird-Walton (a pseudonym)

Case •

[2020] NSWDC 730

•

06 November 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Bird-Walton (A pseudonym) [2020] NSWDC 730
Hearing dates: 23,24,25 and 28 September 2020
Date of orders: 06 November 2020
Decision date: 06 November 2020
Jurisdiction:Criminal
Before: Grant DCJ
Decision:

The accused is found guilty of count 1.

Catchwords:

Criminal Law - Judge alone trial – meaning of reckless grievous bodily harm – fractured skull – expert evidence

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Cases Cited:

Fleming v The Queen (1998) 197CLR 250

Swan v R [2016] NSWCCA 79

Haoui v R [2008] NSWCCA 209

R v Woodland [2007] NSWCCA 29

Singh v DPP (2006) 164 A Crim R 284

Vann v Palmer [2001] ACTSC 12

The Queen v Baden Clay (2016) 258 CLR 308

Category:Principal judgment
Parties: Regina (Crown)
Accused (NBW)
Representation:

Counsel:
Mr Smith (Crown)
Mr King (accused)

Solicitors:
Ms Coleman (Crown)
Ms Mckay (Legal Aid)
File Number(s): 2019/00122078
Publication restriction: Non publication order re identity of accused and the complainant.

Judgment

  1. HIS HONOUR: On 23 September the accused, NBW was arraigned before me at the Albury District Court on the following charge: between 26 October 2018 and 29 October 2018 at Merungle Hill in the State of New South Wales, NBW did recklessly cause grievous bodily harm to AT, contrary to s 35(2) of the Crimes Act 1900.

  2. The accused pleaded not guilty to the charge. The matter proceeded as a judge alone trial, as consented to by the parties on 24 August 2020.

DIRECTIONS

  1. In compliance with s 133(2) and (3) of the Criminal Procedure Act, and as required by the decision of the High Court in Fleming v The Queen (1998) 197CLR 250, I remind myself of the following principles of law: as the accused has pleaded that she is not guilty and elected trial by judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charge and to return my verdict according to the evidence that I have heard.

  2. I have received final submissions from the Crown and Mr King of counsel. I will consider the submissions that have been made and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

  3. I know that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense. I acknowledge that I have very important matters to decide in this case, important not only to the accused but also the whole community. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called and the various exhibits.

  4. I remind myself that I may in my role as a judge of the facts draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

ONUS AND STANDARD OF PROOF

  1. I now turn to what is the most important direction in any criminal trial. The obligation is on the Crown to put evidence before me in order to prove beyond reasonable doubt that NBW is guilty of the charge alleged against her. It is important that I bear this in mind throughout the trial. As a fundamental aspect of any criminal trial the Crown must prove the accused’s guilt based upon the evidence it places before me. NBW has no obligation to produce any evidence or to prove anything at all at any stage of the trial. In particular NBW does not have to prove that she did not commit the offence.

  2. The accused is presumed to be innocent of any wrongdoing until I am satisfied beyond reasonable doubt that her guilt has been established according to law. This does not mean that the Crown has to satisfy me of its version of the facts where some dispute arises. What is required is that the Crown proves those facts that are essential to make out the charge and proves those facts beyond reasonable doubt. These are sometimes referred to as the essential facts or ingredients of the offence. I will go through the essential facts of this particular case shortly.

  3. The expression, proved beyond reasonable doubt is ancient and has been deeply ingrained in the criminal law of this State for a very long time. This is the highest standard of proof known to the law. It is not an expression that is usually explained by trial judges but it can be compared with the lower standard of proof required in civil cases where matters need only be proved on what is called the balance of probabilities.

  4. The test in a criminal case is not whether the accused is probably guilty. In a criminal trial, the Crown must prove the accused’s guilt beyond reasonable doubt. Obviously a suspicion, even a strong suspicion that the accused may be guilty is not enough. A decision that the accused had probably committed the offence also falls short of what is required.

  5. Before I can find Ms BW guilty I must consider all the evidence placed before me and ask myself whether I am satisfied beyond a reasonable doubt that the Crown has made out its case. NBW is entitled by law to the benefit of any reasonable doubt that is left in my mind after considering the evidence before me.

LIBERATO DIRECTION

  1. First, if I believe the accused’s account I must acquit. Second, if I find difficulty in accepting the accused’s account but I think it might be true then I must acquit. Third, if I do not believe the accused’s account then I should put it to one side. Nevertheless the question will remain has the Crown upon the basis of the evidence that I do accept proved the accused’s guilt beyond reasonable doubt?

GOOD CHARACTER

  1. The accused has called evidence to establish that she is a person of good character. She has no prior convictions. That evidence has not been challenged by the Crown, therefore I accept the fact that the accused is a person of good character. The law provides that I am entitled to take evidence of an accused’s good character into account in favour of her on the question of whether the Crown has proved the accused’s guilt beyond reasonable doubt.

  2. The fact that the accused is a person of good character is relevant to the likelihood of her having committed the offence alleged. I can take into account the accused’s good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Further, I can use the fact that the accused is a person of good character to support her credibility. I may reason that a person of good character is less likely to lie or give a false account in giving an account of the events in answer to questions asked by the police. Whether I reason that way is a matter for me to determine.

  3. None of this means of course that good character provides the accused with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused. What weight I give to the fact that the accused is a person of good character is completely a matter for me.

ERISP OF ACCUSED

  1. The accused gave a version of events in the recorded interview with the investigating police. The accused is entitled to rely upon that account and I remind myself to take that into consideration with the other evidence called by the Crown. The accused is not required to prove that this account is true. The Crown in discharging its obligation to prove the accused’s guilt must satisfy me that it is a version of events that could not reasonably be true.

EXPERT EVIDENCE

  1. In this case Dr Hopp and Dr Garside have been called as expert witnesses. An expert witness is a person who has specialised knowledge based on the person’s training, study or experience. Unlike other witnesses a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is what they saw or heard, and are not permitted to express their opinions.

  2. Of course the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.

  3. Expert evidence is admitted to provide the Court with medical information and an opinion on a particular topic which is within the witness’ expertise, but which is likely to be outside the experience and knowledge of the average lay person. The expert evidence is before me as part of all the evidence to assist me in determining the causes of the fractured wrist and skull, the damage to the complainant’s eyes, as well as the various bruises found on her body. I must bear in mind that if having given the matter careful consideration I do not accept the evidence of the experts, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be.

  4. I am also to a degree entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates. It is for me to decide whose evidence and whose opinion I accept in whole or in part. I remind myself that this evidence relates only to part of the case and that while it may be of assistance to me reaching a verdict, I must reach my verdict having considered all the evidence.

  5. Further, there has been no challenge to the qualifications of any of the expert witnesses, all of whom I may consider well qualified.

  6. If the opinion is based upon facts which I am satisfied have been proved, or assumptions that I am satisfied are valid, then it is a matter for me to consider whether the opinion that is based upon those facts or assumptions is correct.

  7. On the other hand, if I decide that the facts have not been proved, or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case the opinion should be disregarded.

INFERENCES

  1. I may in my role as a judge of the facts in this judge alone trial draw inferences from the direct evidence. There is nothing extraordinary about that, we all do it, consciously or otherwise, in our everyday lives.

  2. Inferences are conclusions of fact rationally drawn from a combination of proved facts. If (a), (b) and (c) are established as facts then one might rationally conclude that (d) is also a fact, even though there might be no direct evidence that (d) is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.

  3. In a criminal trial I must be satisfied of the guilt of NBW beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I remind myself to examine any possible inference to ensure that it is a justifiable inference.

  4. In the context of a criminal trial you should not draw an inference from the direct evidence unless it is a rational inference in the circumstances.

  5. In the present case the Crown asked me to draw an inference that the injuries suffered by the complainant were inflicted by NBW.

CIRCUMSTANTIAL CASE

  1. In this case the Crown relies on what is called circumstantial evidence. In relying upon circumstantial evidence the Crown asked me to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further fact or facts.

  2. Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw, or heard, or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case, or it can be evidence from a witness that he or she heard an accused person admit to committing the crime.

  3. In a direct evidence case if the evidence is accepted beyond reasonable doubt it is capable of proving the guilt of the accused.

  4. In a circumstantial case the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be a very dubious quality. For example direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken. But in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown’s case depends either wholly or in part on circumstantial evidence then I am asked to reason in a staged approach.

  5. The Crown first asked me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond a reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. The judge in a judge alone trial is then to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asked me to find, based upon the basic facts, is that an accused person is guilty of the offence charged.

  6. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation), and it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.

  7. It is important that I approach a circumstantial case by considering and weighing up as a whole all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of NBW or whether there is any explanation for that particular fact or circumstance which is inconsistent with Ms BW ’s guilt.

  8. The correct approach is first to determine what facts I find are established by the evidence. As I have already said, any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt. I then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that NBW is guilty of the offence charged. If such a conclusion does not necessarily arise then the Crown’s circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. Of course it follows that I must find the accused not guilty.

  9. But if I find that such a conclusion is a reasonable one to draw based upon the combination of those established facts then before I can convict NBW I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of NBW the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused’s guilt.

  10. I remind myself that I should understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning; I must not base my conclusion upon mere speculation, conjecture or supposition.

  11. In order to satisfy me beyond reasonable doubt of Ms BW ’s guilt of the offence the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. It then must prove that the only reasonable inference, or conclusion that can be drawn from a consideration of all the established facts viewed as a whole, is that the accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asked me to find then the Crown’s circumstantial case fails.

ACCUSED NOT GIVING EVIDENCE - AZZOPARDI DIRECTION

  1. NBW has not given or called any evidence in response to the Crown case. There are a number of important directions of law which I must follow in relation to that fact.

  2. Although an accused person is entitled to give or call evidence in a criminal trial there is no obligation upon her to do so. As I have already pointed out, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged.

  3. NBW bears no onus of proof in respect of any fact that is in dispute. I remind myself that she is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that she is guilty of the offence charged.

  4. Therefore it follows that the accused is entitled to say nothing and make the Crown prove her guilt to the high standard required. I direct myself as a matter of law NBW ’s decision not to give evidence cannot be used against her in any way at all during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give or call evidence. I cannot use that fact to fill in any gaps that I think might exist in the evidence tendered by the Crown. It cannot be used in any way for strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I remind myself that I must not speculate about what might have been said in evidence if NBW had given evidence or what might have been said if that person had been called by the accused as a witness in the trial.

ELEMENTS OF THE OFFENCE

  1. To be found guilty of recklessly causing grievous bodily harm the prosecution must prove the following elements beyond a reasonable doubt:

  1. The accused person caused grievous bodily harm to A.

  2. The accused person was reckless as to causing actual bodily harm.

RECKLESS GRIEVOUS BODILY HARM

  1. Causes grievous bodily harm to a person;

  2. The act was done recklessly.

GRIEVOUS BODILY HARM

  1. Grievous bodily harm requires that the injury be a serious one, but does not require that the injury be permanent or that the consequences of the injury are long-lasting or life threatening.

RECKLESS

  1. In order to prove that the accused acted recklessly the Crown is required to establish beyond reasonable doubt that the accused thought about the consequences of her actions and at least realised the possibility of actual bodily harm to the complainant. The Crown is not required to prove that the accused realised that a serious injury, or any particular type of injury, nor any particular result from her action.

ACTUAL BODILY HARM

  1. Actual bodily harm is any hurt that interferes with the health or comfort of a person. The injury does not need to be permanent, but it must have more than a fleeting or trivial effect upon the victim, such as fear or panic at the time of the incident.

OVERVIEW

  1. The complainant AT was born on 23 September 2017. At the time the alleged offence took place she was 13 months old.

  2. The accused in the matter NBW was the foster carer of the complainant. GBW is the husband of the accused. GBW and the accused resided Corby Hill with their foster child JT, and AT.

  1. The complainant was born with hip dysplasia and was required to wear a hip brace most of the day and night. She was unable to walk or crawl at the time of the offence and extra care was required in relation to her special needs.

CROWN ALLEGATION

  1. The Crown opened their case in relation to the complainant’s relationship with her foster parents Mr BW, and NBW, the accused. It was asserted by the Crown that NBW did not have a good relationship with the child AT. The child would not let NBW feed, change, or bathe her, and would cry when NBW carried out such duties.

  2. It is not contested by the defence that Mr BW had a better relationship with AT and she did not make a fuss when he would feed, change and bathe her.

  3. The Crown alleges that on Friday 26 October 2018 GBW and the accused NBW took the complainant AT to Griffith Hospital for a scheduled admission organised by a paediatrician regarding “failure to thrive” as AT had not gained a healthy amount of weight for her age.

  4. After observation by numerous medical staff the child was described as happy and interactive with no signs of any injury or trauma. The child remained in Griffith Hospital overnight.

  5. On Saturday 27 October 2018 the child was discharged and collected later that afternoon by GBW and taken to his and the accused’s home.

  6. On the morning of Sunday 28 October 2018 GBW got the child out of bed and proceeded with their morning routine, including changing the child and feeding her breakfast.

  7. At about 10am GBW put the child back to bed so he could commence some yard work outside. The complainant was left in the sole care of Ms BW .

  8. The accused’s husband GBW continued to work outside in the yard and could hear the accused yelling from inside the house. At some point that afternoon the accused sent a text message to her friend Ms Skewes, which read “shit I just tried to feed her, I just don’t know what to do, I just can’t handle this”.

  9. At about 7 to 8pm GBW came inside the house. He checked on the child in the bedroom and found that she was awake but refusing to open her eyes. He became concerned as she appeared lethargic. Mr and Mrs BW attempted to wash her eyes with water but AT would not open her eyes. It remains unclear how corneal abrasions such as these could be sustained without some kind of vigour.

  10. GBW subsequently drove the child to Leeton Hospital. On route to Leeton Hospital he noticed the child appeared to be losing consciousness. He pulled over to check her breathing. The child was breathing but still had not opened her eyes. He described her state as “doughy”.

  11. On arrival at the Leeton Hospital the child was triaged, but transferred via ambulance to Griffith Hospital that night. A number of nurses observed injuries to the child.

  12. At Griffith Hospital the treating paediatrician and nursing staff observed injuries including corneal abrasions to both eyes, bruising to her forehead and behind her right ear, right wrist and a fresh cut to her upper inner lip were observed. Ultimately these injuries were deemed suspicious and non-accidental by staff. As a result a risk of harm report was made and the Murrumbidgee Child Abuse Unit commenced an investigation.

  13. The complainant was transferred to Sydney Children’s Hospital Child Protection Unit. At SCH it was confirmed the complainant had a non-displaced fracture to her skull, fractures to both wrists, laceration to the inner upper lip, bruising to the head behind her right ear, both wrists, lower and upper limbs and back.

  14. The accused was interviewed by police. She accepted that she was home throughout the Saturday with the child while GBW was outside in the yard. The accused did not provide any explanation as to how the injuries might have occurred and was given opportunities throughout the course of the investigation to tell officers if any incidents occurred while in their care.

  15. A warrant was obtained by police to place listening devices in the accused’s house. The Crown alleges that NBW can be heard saying “I wish I never took her” and “I wish I said something like I accidentally dropped her in the shower or something”. The Crown alleges that these statements are admissions of guilt.

  16. I do not accept this evidence. The recordings were played in Court during the course of the trial and the audio was incoherent. I could not make out the words asserted by the Crown. I have listened to the recording several times.

  17. The Crown opened that the overwhelming likelihood is that the injuries were inflicted on 28 October 2018 after GBW had put A down for her morning nap and before GBW returned to the house in the late afternoon and woke A up. In the intervening period the accused was alone caring for A. She tried to feed A lunch and A vomited multiple times, necessitating three baths and three changes of clothes. The accused lost her temper and inflicted the injuries relied on by the Crown. The precise mechanism is unknown.

THE EVIDENCE

RELATIONSHIP WITH THE CHILD

  1. NBW had a strained relationship with AT. AT preferred GBW to carry out daily activities with her, such as feeding and changing. This was undisputed by GBW and further documented in the notes of Phillip Williams, a caseworker from the Leeton office of New South Wales Department of Family and Community Services.

  2. AT and NBWdid not bond and this strained the relationship to the point where GBW would come home to NBW upset and frustrated on most days. NBW held the belief that AT could perhaps sense her stress, hence reacted poorly to Ms BW ’s attempt to care for her. She further believed that AT felt pain and discomfort during her physio exercises and because the exercises were done with NBW she associated Ms BW’s presence with pain and discomfort.

PHILLIP WILLIAMS, CASEWORKER, OFFICE OF NEW SOUTH WALES DEPARTMENT FAMILY AND COMMUNITY SERVICES

  1. The BW s, with AT, met with Mr Williams on 18 October 2018. Mr Williams indicated that there was limited interaction between AT on their first appointment and that she sat on GBW’s lap on their first visit: (T31.1)

  2. I give this observation little weight. The child was seated on GBW’s lap. It is only natural that she would interact more with him due to the close physical proximity.

  3. On 22 October 2018 GBW returned to see Mr Williams without the accused. He requested to speak to Mr Williams because he was concerned about “AT’s reaction to NBW”. This meeting was unscheduled and he turned up to Leeton with no appointment. Mr Williams subsequently referred the family to a counsellor.

  4. GBW told Mr Williams “AT won’t let NBW dress, bathe her, or basically do anything without throwing a tantrum”. GBW recounted to Mr Williams that the accused’s relationship with AT was such that the accused would be “in tears of frustration due to A either crying a lot during the day, not wanting to be fed, just not wanting a hands-on baby/mother sort of interactions going on during the day”: (T32.17)

  5. I granted leave for the Crown to cross-examine GBW. In cross-examination GBW conceded that the accused had been struggling with AT the entire time that she had been in their care and that they had been hoping it would get better, however it did not: (T193.37 - 41)

  6. GBW described how significant patience was required to feed A, with some meals taking up to an hour to complete: (T195. 36-43) The difficulties had on a couple of prior occasions led the accused to force feed A to the point where A would vomit: (T198.47)

VANUATU TRIP/KELLY SALIOU

  1. Prior to fostering AT Mr and Mrs BW had planned a trip to Vanuatu with JT. They did not have a passport for A. Arrangements were made for A to be left in the care of Ms Saliou from 22 September to 4 October 2018. Ms Saliou was a foster carer. The BW s trusted her with AT.

  2. Ms Saliou gave evidence in the trial by audio-visual link. While AT was in the care of Mr Saliou, AT was bathed in a shower seat provided by the BW s. Ms Saliou noted AT could not crawl, she was unstable and could not sit up unassisted, and could not sit with a straight back. Ms Saliou described AT as a “happy go lucky child” and only “cried once when the vacuum cleaner was put on as it scared her”. She further stated that “she ate very well” and was a “good sleeper”.

  3. GBW and JT picked up AT on 4 October and Ms Saliou did not see AT again following her stay.

  4. The accused sent Ms Saliou a message on 27 October in the following terms “she ate fine for hospital staff, won’t eat for me, I don’t know what to do”: (exhibit 2, product 6193). Ms Saliou did not recall any incidents with AT during her stay.

NBW - ERISP AT THE FAMILY HOME, 29 OCTOBER 2018, EXHIBIT 5

  1. Ms BW ’s motherly instinct was demonstrated in her clear concern for AT’s developmental issues. She expressed concern that there had not been any directions in relation to AT’s hip dysplasia and subsequently organised physio sessions. Her manner and concern for AT’s wellbeing was reflected when talking about AT and detailed her attempts to carry out exercises for the benefit of AT’s developmental progress.

  2. NBW admitted that AT did not settle as easily as JT and that caused her some frustration. NBW suggested that AT could sense NBW’s stress which could have led to AT’s discomfort when in her company.

  3. NBW stated she leaves feeding to her husband GBW when he is at home, stating that this course of action “saves the fuss and saves her being upset”. NBW stated that it was her idea for AT to engage with physiotherapy. She claimed that Griffith Base Hospital said it was not necessary, however NBW did not see how AT would be able to develop well without that kind of support. NBW had AT’s best interests in mind.

  4. Detective Flynn asked NBW about the time period that she returned from hospital “Did JT play with her unsupervised?” Answer “No I don’t think so”. Detective Flynn asked if there was any accidents that NBW could think of. NBW said that on one occasion she had AT in a position on the floor in the living room, as directed by the physiotherapist, and AT fell forward, hit her head. NBW said she “whinged a bit, didn’t cry”. NBW could not recall how long ago that incident occurred.

  5. She further outlined an occasion in which she took AT out the front of the family home away from the rest of the family in trying to get her to eat and AT threw her head back and tapped the back of her head on a coffee table. NBW also recalled an incident in which AT vomited three times. NBW noticed she was having some discomfort with her eyes, holding them closed and constantly rubbing them. She subsequently flushed her eyes with water and nothing else. When AT woke the discomfort had not lessened and GBW took AT to the hospital.

DETECTIVE BELTRAME AND DETECTIVE FLYNN AT THE HOME OF MR AND MRS BW

  1. A warrant was obtained to search the property of Mr and Mrs BW. Both Mr and Mrs BW chose to be present during the search and assisted the officers during the course of the search. The home of Mr and Mrs BW where they live with their foster children JT and AT was presented as a safe and child-friendly environment. The children’s rooms were filled with toys and painted a picture of loving parents.

  2. Mr and Mrs BW detailed their daily routine with AT, including the feeding process, the bathing process, and detailed their general movements and activities throughout the day. They showed the chair which AT sat on to eat and where that seat was placed during feeding times.

  3. NBW moved to the living room area and showed detectives where they would carry out the physio-recommended exercises with AT. AT did not enjoy the exercises which could have been a contributing factor to the tension between NBW and AT.

  4. The detective asked several times throughout the process whether any accidents with AT had occurred in the home. The answers from both NBW and GBW were “no” or “no, not that I know of”.

  5. The group moved to the bathroom area where Mr and NBW would bathe AT. They showed detectives the tub which AT was bathed in on the day where she first became ill which led to the first visit to the hospital. GBW showed detectives the shower which they often used for AT, and the shower seat which they often used for her. GBW was asked if there were any accidents in the shower. He answered “no, not that I know of”.

  6. GBW recalled one incident in the living room in which JT pulled AT off the corner of the couch by her right wrist. GBW picked AT up, who did not appear upset or hurt. He demonstrated to the detectives how she had been pulled up by the wrist onto the ground from the centre corner of the L-shaped couch by JT. In his oral evidence GBW confirmed when giving evidence in the trial that the fall was not something to worry about and was not a big deal.

ERISP – NBW AT POLICE STATION, 5 DECEMBER 2018 - EXHIBIT 6

  1. NBW consented to a further interview with Detectives Flynn and Senior Constable Beltrame at the police station. NBW was unrepresented in this interview. Ms BW detailed the pickup of AT when she first came into her care. There was no information in relation to how to deal with the hip dysplasia which she thought was concerning at the time. NBW said she did not hear from the caseworker for a significant amount of time following the pickup of AT. This is concerning for a child with significant disabilities.

  2. Ms BW subsequently made contact with JT’s caseworker who then made contact with AT’s caseworker, who eventually got in contact with the accused. During the interview NBW outlined that GBW would carry out the morning routine while NBW was at the gym in the mornings. GBW had a closer relationship with AT, and that AT was more comfortable with GBW carrying out the routines associated with a small child, such as feeding and changing a baby. NBW detailed the daily routines in the household in relation to the care of the children. There was nothing out of the ordinary about the routine. When asked about bruising and if she knew how the bruises were sustained NBW was unable to say.

  3. On 28 October 2018 GBW got AT out of bed. She tried to feed her lunch. AT fussed the whole way through and worked herself up. She used the tub to wash her three times, and that she vomited. She was constantly crying. She took her out to the change mat and she vomited while she was lying down for the second time. She vomited a third time and she had bathed her three times. NBW said,

“I would never hurt a child purposely”. “It’s not something I would ever do intentionally”.

EVIDENCE OF GBW

  1. On 22 October 2018 GBW saw Mr Williams without his wife and agreed there were “bonding problems”. He said AT was, “Getting standoffish with NBW”. When asked about the evening he drove AT to the hospital and described AT as “doughy”, he further explained he meant weak and tired. He said, “She was probably freaking out a bit” and was “dropping her head down looking up and around” and “Rubbing her eyes probably” when asked about the position of AT’s hands in the car. In relation to the hospital visit he said, “I honestly don’t recall what they gave her or what they did when she was in hospital”. He further said he does not have much recollection regarding the issue with her eyes and the shampoo.

  2. I granted leave to the Crown to cross-examine GBW. In cross examination he agreed that AT preferred GBW to NBW and agreed that this made NBW frustrated. He was then asked if he ultimately went to Phillip Williams for help. He answered, “Yep”. It is reasonable to think that perhaps GBW’s evidence was presented in a way it was in order to protect his wife.

23 OCTOBER 2018

  1. AT was assessed by Professor Hopp, a paediatrician, on 23 October 2018 at his rooms in Griffith for “failure to thrive”. He conducted a head to toe examination (T36.4). There was no evidence of any bruises and no evidence of corneal abrasions. She was to be admitted to the Griffith Hospital for further tests to be conducted.

FRIDAY 26 OCTOBER 2018

  1. AT spent time with RBW, the mother-in-law of the accused. She noticed no injuries and nothing about AT’s behaviour on that day gave rise to any concern. She did not have any accidents. She ate without difficulty. In the afternoon of 26 October 2018 A was admitted to the Griffith Base Hospital under the care of Professor Hopp. This was referred to in the trial as the failure to thrive admission. A was an inpatient overnight. Nurse Renee Foster had the opportunity to observe AT in the afternoon. She appeared happy (T52.46).

SATURDAY 27 OCTOBER 2018

  1. Nurse Mandy Radcliffe interacted with AT on Saturday 27 October 2018. She presented as happy, smiling, and interactive (T64.36). She ate well (T64.5). GBW picked AT up from the hospital and took her home. No hospital staff saw a laceration to the inside of AT’s lip.

SUNDAY 28 OCTOBER 2018

  1. GBW got AT out of bed in the morning. He changed her and gave her breakfast. He spent some time with her on the lounge before she became tired and he put her back to bed before going outside for the rest of the day (T172). He returned to the house at some time after 12pm. He went as far as the backdoor, saw the accused feeding AT and went back outside (T173.13). AT became so “worked up” during the time that the accused was trying to feed her that A began to vomit (ERISP 376, 377). She was constantly crying whilst the accused was trying to wash her (ERISP 421). She seemed to settle for a time but began crying again when she vomited for a second time (ERISP 425). She vomited three times and required bathing and changing three times. She did not stop crying until she was returned to the cot (ERISP 433).

  2. At 1545 hours the accused sent a text message to Ms Skewes,

“Shit. I just tried to feed her, fussed the whole way through it, then threw up three times. I just don’t know what to do. I can’t handle this” (exhibit 17).

  1. GBW said that he heard the accused yelling from inside the house in the afternoon but it was not sufficiently serious to warrant his intervention.

  2. Later that evening GBW woke AT up. He realised her eyes would not open. He changed her and then persisted for some time in trying to feed her before realising that there was a significant problem and determined to take A to the hospital (T175 to 177). He took AT to Leeton Hospital. She was transferred to Griffith. By the time AT was admitted to the paediatric ward very late in the evening on 28 October 2018 she was very unsettled. Every time she was touched by nursing staff she would cry. She was not opening her eyes and she had blood on the top of her teeth and gums (T55.10). Nurse Radcliffe described AT’s presentation late in the evening of Sunday 28 October 2018 as completely different to her presentation on 27 October. She would become upset if disturbed (T69.46).

MONDAY 29 OCTOBER 2018

  1. Dr Reeves examined AT and described her as being very, very upset when moved but able to be comforted by a cuddle (T28.45). Dr Hopp examined her and noted that she was a very unhappy child. She was not using her right hand and was distressed when palpated (T38.47). She had extensive bruising involving her right wrist, upper thigh, posterior torso, and behind her right ear, and her presentation was in contrast to how she had presented when Dr Hopp last saw her (T39.95). A was transferred to the Sydney Children’s Hospital.

DR LYDIA GARSIDE

  1. Dr Garside is a consultant paediatrician. She is a paediatrician with the Child Protection Unit at the Sydney Children’s Hospital, Randwick. She co-authored a report dated 7 November 2018 with Dr Rebecca Lee, a Child Protection Fellow. AT was transferred from the Griffith Base Hospital to the Sydney Children’s Hospital on 29 October 2018. She was referred for complex care management; conjunctival abrasions, renal tubular acidosis, developmental delay, and for investigations of child protection concerns including unexplained eye injuries, cutaneous bruising and laceration of the inner surface of the upper lip.

  2. AT presented to Leeton Hospital on 28 October with lethargy and inability to open her eyes. Carers report that AT was woken at 2030 hours to be given dinner when carers noticed she could not open her eyes. AT was taken to the Leeton Hospital from where she was further transferred to Griffith Base Hospital where she arrived at 2350 hours. She was found to have a 4 centimetre bruise to her right forehead, bruising behind her right ear, a bruise to her left wrist, and a cut on her upper lip with some blood on her gums.

  1. When AT presented to Leeton Multipurpose Centre and then was transferred to Griffith Hospital she was documented to have been irritable with bilateral corneal abrasions, blepharospasm (an inability to open her eyes) and bruising involving her right wrist, back, and behind her right ear. At Griffith Hospital she was examined by Dr Marion Reeves at 0100 hours on 29 October after transfer from Leeton Hospital. She was found to be irritable and photophobic with blepharism and to have a 4 centimetre bruise to the forehead. Fluoroescein staining of her conjunctiva (covering of the eye) revealed large bilateral corneal ulcers.

  2. A number of medical investigations were conducted. A skeletal survey was performed on 31 October 2018. It revealed the following:

  1. A linear non-displaced fracture of the right parietal bone,

  2. A transverse fracture of the proximal left ulna at the diametaphyseal junction with surrounding periosteal reaction,

  3. Bucket handle/corner type metaphyseal fractures of both distal radii with associated periosteal reaction,

  4. Probable corner type metaphyseal fractures in both distal ulnae.

  1. A CT scan was performed on 31 October 2018. It revealed a non displaced linear fracture in the right parietal bone extending from the right coronal suture to the right Lambdoid suture. AT had a formal ophthalmological examination performed by the ophthalmology registrar on 13 October 2018, and again under general anaesthetic on 31 October. There was a small epithelial abrasion on the left eye noted on examination on 30 October. Examination on 31 October revealed that the left corneal defect had healed and there was no retinal haemorrhages.

  2. Dr Garside expressed the following opinions in her report:

  1. Skull fracture:

“The linear skull fracture seen would be the result of blunt force trauma to the right side of the head. This could be the result of a direct blow from a hand or object, or as a result of a fall from a height onto a hard surface such as a fall from a bed or change table. It is not possible to age skull fractures and is therefore not possible to put a timeframe on when the injury occurred. The fracture could not have occurred spontaneously and it would be unlikely that she could have caused this injury by herself in the course of normal activity... Additionally, there is bruising to the right side of her head behind the right ear. It is not possible to definitely say that the right skull fracture and bruise were caused by the same mechanism; however this could be a possibility.”

  1. Bilateral conjunctival abrasions:

“Conjunctival abrasions can be the result of something hitting the eye or blowing into the eye such as plant matter, dust or dirt. Foreign matters such as dust, dirt or sand getting stuck under the eyelid and rubbing the eyes may cause corneal abrasions. To have corneal abrasions of both eyes is not commonly seen. The corneal reflex protects the eye from foreign material by reflexively shutting both eyes in response to contact with the cornea to make it more difficult for foreign material to enter both eyes. Corneal abrasions are unlikely to have occurred spontaneously. It is possible that she caused these injuries herself in the course of rubbing her eyes if foreign matter had entered her eyes.”

  1. Laceration to the mucosa of the inner upper lip:

“This laceration could be the result of blunt force trauma to the face in the region of the mouth, which could be the result of a fall onto the face or a direct blow to the face. This could also have occurred as a result of direct trauma to the mucosa as can be seen with forceful feeding with a hard implement like a spoon. It is unlikely that AT caused this injury herself in the course of normal activity.”

  1. The accused is not charged with an assault occasioning actual bodily harm. Evidence of a cut is therefore relevant only in a Crown circumstantial case that the accused inflicted grievous, as distinct from actual, bodily harm to AT on the afternoon of 28 October 2018.

(d) Transverse fracture of the proximal left ulna

  1. The Crown did not rely upon this injury in proof of the charge. It was not relied upon due to the opinion of Dr Garside that, “There is evidence of periosteal reaction at the fracture site which indicates healing... evidence of healing would be consistent with this fracture being more than ten days old at the time that the images were obtained”. Dr Garside’s opinion takes the fracture outside of the between dates of the charge.

(e) Metaphyseal fractures of both the radii and ulna of her left and right wrist

It is Dr Garside’s opinion that,

“Metaphysical fractures result from traction and torsion forces such as might occur if the arms were forcibly pulled or twisted. It is unlikely that these injuries occurred accidentally, nor could this have occurred spontaneously. AT could not have caused this injury by herself in the normal course of activity. CMLs are highly suspicious for inflicted injury”.

  1. In cross-examination Dr Garside agreed that the periosteal changes shown on the skeletal scan and the bone scans put these fractures into a similar category as the ulna and therefore were more likely to be more than ten days old (T135.25). In light of Dr Garside’s evidence the Crown abandoned reliance upon this injury in proof of the charge.

(f) Bruising to the right side of her head

  1. It was Dr Garside’s opinion that,

“The bruising seen behind AT’s right ear is likely to have been caused by a direct blow to the side of the head with a hand or object. This is unlikely to have occurred spontaneously and she is unlikely to have caused this extent of bruising herself in the course of normal activity”.

  1. In the trial it was her opinion that the bruising behind the right ear was bleeding from the fracture site seeping down by gravity to appear in the position it did. It is not necessary for me to make a finding whether the bruise behind the right ear has been caused by a direct blow to the side of the head or bleeding from the fracture site. The bruise does not satisfy the definition of grievous bodily harm. It is, however, relevant in the Crown’s circumstantial case that the accused inflicted grievous, as distinct from actual, bodily harm to AT on the afternoon of 28 October 2018.

  2. Dr Garside’s report concludes that, “The pattern and number of injuries makes them highly suspicious for inflicted injuries which are likely to have occurred on at least two separate occasions”.

CONSIDERATION

  1. The Crown case is that the following injuries were sustained by AT on Sunday October(as said) 2018:

  1. Bruising to the right side of the head (behind the ear and forehead);

  2. Lip laceration and graze;

  3. Bilateral corneal abrasions;

  4. A skull fracture.

  1. The corneal abrasions and the skull fracture are relied upon by the Crown as constituting grievous bodily harm. The question whether injuries constitute grievous bodily harm is a matter for the tribunal of fact. Courts have long resisted any further explanation given beyond noting that the injuries need to be more than just serious bodily harm, that they must amount to really serious bodily injury. Such injury need not be permanent nor have long lasting or life threatening consequences, nor be something requiring operative treatment.

  2. The concept of grievous bodily harm was considered in Swan v R [2016] NSWCCA 79 at [54] - [71]. Garling J at [71] held:

“To summarise, it seems to me that, based upon the authorities and the preceding discussion, the following principles can be stated with respect to the phrase ‘grievous bodily harm’:

(a) It is to be interpreted according to its natural and ordinary meaning;

(b) On its natural and ordinary meaning, the phrase means not just serious bodily injury, but really serious bodily injury;   

(c) There is no bright line by which an injury can be classified as really serious bodily injury; it is always a question of fact and agreed;

(d) Not every injury is capable of amounting to grievous bodily harm;

(e) Only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury.”

THE CORNEAL ABRASIONS

  1. Dr Garside agreed in cross-examination that there are a large number of causes of corneal abrasions including as a result of direct trauma, the introduction of physical irritant into the eye like sand or a speck of dust, the introduction of a chemical irritant causing excessive rubbing (T126.45 to T127.15).

  2. The Crown submits that there is no evidence of AT being outside at all on the day (except for at the outdoor table area being fed). AT could not crawl and did not have the opportunity to amass grit on her hands for it to be transferred into her eyes. I accept the Crown submission.

  3. AT was bathed on three occasions due to vomiting when feeding. It was postulated that the use of shampoo (a chemical irritant) is a possible cause of the abrasions. It was Dr Garside’s evidence that it would be very unusual for shampoo to have caused the abrasions (T120.6). She went on to say that AT would not have caused the abrasions rubbing her eyes herself (T120.6). She conceded, as she had in her report, that it was possible that AT caused the corneal abrasions by rubbing her own eyes if foreign material had entered her eyes (T126.36). There is nothing in the medical material tendered that gives rise to the reasonable possibility that shampoo in her eyes caused the injuries to AT. She had limited time outside; there was no opportunity for grit to be transferred into her eyes.

  4. The accused submits that the epithelial defects do not and could not constitute grievous bodily harm. When AT was seen at Leeton Hospital she was reluctant and unable to open her eyes. Upon her transfer to Griffith Base Hospital in the early hours of 29 October AT was found to be photophobic (sensitive to light) and blepharospasms (inability to open her eyes). When Professor Hopp examined AT at 8am on 29 October 2018 he was still able to identify the abrasions and fluorescein staining which, at his estimation, meant that the abrasions were more than trivial. Of course, this was less than 12 hours after AT first presented at Leeton Hospital.

  5. AT was transferred to the Sydney Children’s Hospital on 29 October 2018. When she was examined by Dr Garside and Lee the next day AT was still photophobic. She was later seen that day at 4.30pm by an ophthalmic registrar who noted that the right eye abrasion had healed completely and that there remained a small epithelial abrasion on the left eye. This was only two days after AT first presented at the Leeton Hospital. A further examination on 31 October revealed that the left corneal defect had then completely resolved with no retinal haemorrhages.

  6. This was consistent with the evidence of Professor Hopp that epithelial defects can clear up within a matter of hours, and certainly within a matter of days. He also stated that the only treatment required for such abrasions (if needed at all) was topical application of Chlorsig (a dual antibiotic anti-inflammatory) but they normally resolve themselves without any treatment as the eye is part of the body which regenerates very quickly. On this issue Dr Garside agreed that it was not uncommon for corneal abrasions to resolve within hours, and that almost all resolve within a day or two, and that the only treatment required is the application of Chlorsig and maybe eye drops (not further described).

  7. Dr Garside said in evidence,

“Well I think that there was a question about the cause simply because it’s such an unusual pattern of injury. And in constellation with all the other injuries that AT had sustained it made me feel that it was more likely that there was some sort of trauma. But you’re absolutely right, it’s not typically seen in non-accidental injury or inflicted child injury, but given that she had so many other injuries we were thinking that that was more likely. The injuries to her eyes healed very quickly and she didn’t have any viral therapy or anything like that. They healed just with Chlorsig and time” (T133.15).

  1. Mr King, who appears on behalf of the accused, submits that abrasions do not and could not constitute grievous bodily harm. He submits that the highest the medical opinion rose in this regard was through Professor Hopp who thought that they were more than trivial because they were still present less than 12 hours after initial presentation at Leeton Hospital.

  2. In my view irritability and light sensitivity over a couple of days would constitute actual bodily harm, but in applying the principles in Swan I am not satisfied beyond a reasonable doubt that the abrasions constitute grievous bodily harm. The abrasions were not a really serious bodily injury. Accordingly, it is unnecessary for me to consider if the abrasions were recklessly caused by the accused.

SKULL FRACTURE

  1. The skeletal survey and CT brain scan performed on 31 October 2018 revealed a “non-displaced linear fracture in the right parietal bone extending from the right coronal suture to the right Lambdoid suture”. It was the opinion of Dr Garside that,

“The linear skull fracture seen would be the result of blunt force trauma to the right side of the head. This could be the result of a direct blow from a hand or object, or as the result of a fall from a height onto a hard surface, such as a fall from a bed or change table. It is not possible to age skull fractures and it is therefore not possible to put a timeframe on when the injury occurred. At the time of injury there was no evidence of underlying intracranial abnormality in association with a fracture. The fracture could not have occurred spontaneously, and it would be unlikely that she could have caused this injury by herself in the course of normal activity”.

  1. Mr King, on behalf of the accused, referred me to Haoui v R [2008] NSWCCA 209. The Court of Criminal Appeal considered the classification of the injuries consisting of a depressed cheek fracture with bony deformity and an associated orbital floor blowout fracture. The injuries required surgery which consisted of a 2 centimetre incision on the scalp, and further incisions to the lateral brow and inside the mouth, and insertion of a titanium plate which was affixed to the facial bones by way of titanium screws which would remain permanent in situ.

  2. He relies upon the minority judgment of Beazley JA (as her Honour then was) that “The jury’s determination that the injuries amounted to grievous bodily harm was unreasonable”. Her Honour referred to R v Woodland [2007] NSWCCA 29 where the injured party had suffered significant facial injuries including a right orbital complex fracture; Singh v DPP (2006) 164 A Crim R 284 which involved a fracture of the left orbit and Vann v Palmer [2001] ACTSC 12 which involved facial fractures including cheekbones and nose which required reconstructive surgery and the insertion of plates under the left lower eyelid and inside the lining of the mouth.

  3. Her Honour was of the view that the fracture was of a small bone and the plate that needed to be inserted was small. In her Honour’s view that did not constitute a really serious bodily injury. Johnson J disagreed and thought the evidence showed that the injured party sustained a significant injury which required significant surgery and this constituted grievous bodily harm, but very much at the low end of the scale. McCallum J agreed with Johnson J.

  4. Mr King concedes that Haoui is of limited assistance in considering the question of injuries in this case and the factors which should play into an assessment of whether injuries constitute grievous bodily harm or not. Mr King relies upon the evidence of Dr Garside that,

  1. Linear undisplaced skull fractures are the most common simple type of fracture, which are one of the less serious fractures because they generally do not require additional neurosurgical intervention (T142.30),

  2. A simple linear undisplaced fracture usually requires admission to hospital for observation and performance of CT and MRI scans, which occurred on this occasion and which showed no underlying brain abnormality (T143.20),

  3. If there is no underlying brain abnormality there is no further treatment required and a patient can be discharged (T143.40),

  4. That any pain (if there was any) would subside over a week or two (T143.37),

  5. Patients are then left to live their lives, although in a child there would need to be a repeat scan which in A’s case showed no abnormality (T143.40).

  1. He submits that when the evidence is examined with the guidance in Swan there must be a reasonable doubt that the skull fracture represents a really serious bodily injury.

  2. Mr Smith, who appears for the Crown, relies upon what was said in Swan at [71]. He submits that Dr Garside noted that the skull fracture was “quite extensive” and went from one suture to the other (T114.49. See also exhibit A). He points to Dr Garside’s opinion that there is very likely to be a relationship between the skull fracture and the bruising behind A’s right ear (T114.49). Dr Garside’s evidence was.

“... if you fracture a bone and it bleeds out and it can either cause a haematoma or swelling or it can bleed out and track down, normally by gravity, to an area below the area of the fracture. So in this case it has tracked down to behind the right ear” (T115.6).

  1. There was bruising behind the ear which Dr Garside says was consistent with the skull fracture. Although the fracture was non-displaced it resulted in bleeding from the fracture site. It was an extensive fracture, and in my view it was a significant skull fracture from one suture to the other. AT’s excessive drowsiness during the car trip between the accused’s home and the Leeton Hospital is consistent with the skull fracture (T119.22). When GBW spoke to hospital staff at Sydney Children’s Hospital he described A having her head down on her chest. He also described to hospital staff that AT’s head was flopped forward and the manner in which A’s head “lolled” every time the vehicle travelled over a bump.

  2. AT’s presentation at Leeton Hospital was associated with lethargy (Dr Garside’s report 2.2). This evidence is suggestive of a significant closed head injury. The nature and severity of an injury is not to be judged by comparisons with other injuries, even other injuries of a similar type. The fact that surgery was not required because it was a non-displaced fracture is not by itself determinative as to whether the injury amounts to a really serious bodily injury. There is no bright line by which an injury can be classified as really serious bodily injury. It is always a question of fact and degree.

  3. Although it is a common simple type of fracture it was extensive from one suture to another. It resulted in internal (below the skin) bleeding. It caused lethargy and would be painful for over a week or two (T143.37). A parietal skull fracture is sufficiently serious for a child to be admitted to hospital and not be discharged. They would remain in hospital until further testing had been carried out (T143.1 to 48). The injury need not be permanent nor have long lasting or life-threatening consequences, nor be something requiring operative treatment. I am satisfied beyond reasonable doubt that the skull fracture was a really serious bodily injury.

DID THE ACCUSED CAUSE GRIEVOUS BODILY HARM TO AT, AND WAS SHE RECKLESS AS CAUSING ACTUAL BODILY HARM

  1. The Crown case is a circumstantial case. The Crown case is that the injuries relied upon were sustained by AT sometime between 10am on Sunday 28 October 2018 and 7 to 8pm Sunday 28 October 2018. It was the Crown case that in the lead-up to the alleged assault the accused was struggling with the day to day care of AT and was becoming increasingly upset and frustrated. The accused was struggling to feed A and was aware GBW did not have the same difficulty. The Crown says that on the day of the alleged assault the accused was feeding AT. For reasons that are unclear (but which the Crown says probably involved the accused overfeeding AT) A vomited three times. Each time she vomited the accused was required to wash AT and dress her. The accused became increasingly upset and angry to the point she was yelling.

  1. The Crown submits that during the period the accused inflicted the injuries relied upon by the Crown she then placed A in her cot where she was later discovered by GBW. Not long after being taken out of bed by GBW he realised that A was not opening her eyes and took her to the Leeton Hospital.

  2. The Crown’s circumstantial case is based on six facts:

  1. The complete absence of any observable signs of injury prior to 10am on 28 October 2018;

  2. A failure of the accused to bond with AT including behavioural difficulties that the accused experienced with AT, which led to the accused being upset and frustrated;

  3. The accused was alone with AT in the period between when A was last observed to be completely well and when she was observed to be injured;

  4. The accused becoming upset with A during the period she was alone with her on 28 October 2018;

  5. The complete absence of any innocent explanation for the injuries sustained by AT;

  6. The number, location, and probable cause of the injuries A sustained are inconsistent with accident.

  1. Mr King, on behalf of the accused, submits that if it is reasonably possible that the accused

(a) did not inflict the stated injuries on A, or

(b) if it is reasonably possible that the injuries were not sustained on the afternoon of 28 October 2018, the accused is entitled to an acquittal.

  1. He contends that considering the evidence as a whole there exists a reasonable possibility that the skull fracture occurred at a time prior to 28 October 2018. The accused submits that there is a reasonable possibility that the fracture of A’s skull occurred prior to the afternoon of 28 October 2018 based on,

  1. the radiological and clinical evidence of the fracture, the opinions of Dr Garside and the supporting medical observations at the relevant time, and

  2. the circumstances otherwise do not point exclusively to that conclusion.

  1. Mr King points to the inability of Dr Garside to date the bone injury and her variation in evidence as to whether the bruise near the ear was the result of blunt force trauma or bone bleed.

  2. I accept Dr Garside’s evidence that there is very likely to be a relationship between the skull fracture and the bruising behind AT’s right ear (T114.49). It was Dr Garside’s opinion which I accept that,

“... if you fracture a bone and it bleeds out then it can either cause a haematoma or swelling, or it can bleed out and track down, normally by gravity, to an area below the area of the fracture. So in this case it is tracked down to behind the right ear” (T115.6).

  1. Professor Hopp examined AT head to toe on 23 October 2018. There was no bruise near the right ear. On the afternoon of 26 October 2018 AT was admitted to the Griffith Base Hospital under the care of Professor Hopp. The child was observed by Professor Hopp, nurses Foster and Radcliffe. There was no observation of bruising below the right ear. On Saturday 27 October 2018 A presented to Nurse Radcliffe as happy, smiling, and interactive (T64.36). She ate well (T64.45).

  2. GBW told Nurse Foster that upon picking up AT from Griffith Base Hospital on 27 October 2018 that AT was pretty happy and went to sleep after getting home (T171.40). GBW told the Court that he had never seen any of the bruises that the doctors at Sydney Children’s Hospital told him about (T181.41) despite having changed her multiple times, showered her, and strapped her into a car seat multiple times (T196). This evidence is consistent with a bruise below the right ear appearing at presentation at the Leeton and Griffith hospitals suggesting a fracture of the skull on Sunday 28 October 2018. I accept there was a fracture of the skull and there was bleeding at the fracture site causing a haematoma which tracked down by gravity below the area of the fracture, and in this case it tracked down to behind the right ear.

  3. Mr King says that the Crown argument that there was no plausible previous history of accident reverses the onus of proof. In The Queen v Baden Clay (2016) 258 CLR 308 at [46] the Court 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 (citation omitted). 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 (citation omitted).

For an inference to be reasonable it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.”

  1. As I understand the Crown argument what has been postulated is that there is an absence of a reasonable inference due to no plausible history of accident and without it there is mere conjecture allowing the finder of fact to be satisfied that the inference of guilt is the only inference open upon a consideration of all the facts on the evidence. The evidence is not to be looked at in a piecemeal fashion. I am to consider all of the circumstances established by the evidence and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

  2. I am satisfied that there is no inference consistent with innocence reasonably open on the evidence. In coming to that conclusion I have taken into account the following,

  1. There is no plausible previous history of accident to account for the fractured skull. The fracture was caused by blunt force trauma. The fracture could not have occurred spontaneously and it would be unlikely that AT could have caused this injury by herself in the course of normal activity.

  2. The complete absence of any observable signs of injury prior to 10am on 28 October 2018. AT had been seen by numerous people between 4 October 2018 and 10am on 20 October 2018, and none of them had observed injuries or behaviour consistent with the injuries. There was no challenge to the evidence of Professor Hopp that he had examined AT head to toe (T36.4) during an examination which took place on 23 October 2018. There was no evidence of bruises. On the morning of Friday, 26 October 2018 AT spent time with Ruth BW, the mother in law of the accused. She noticed no injuries. She did not have any accidents.

  3. The failure of the accused to bond with AT. The crime scene video clearly shows that the BW s could not have provided a more caring and thoughtful family environment for the children who clearly wanted for nothing, materially or otherwise. Mr King submits that it is clear from the evidence that the accused was struggling with settling into the new relationship with AT which came with its own challenges, that she was expressing her concerns to others. And in seeking help from FAC both she and GBW were dealing with the challenges in a transparent and approximate manner: Accused submissions [24].

It was the accused who was the one involved in the physio type exercises to gain proper use of AT’s legs after being in the constriction brace which put AT in discomfort, and the accused bore the brunt of that. Mr King submits it is not a failed bond issue but rather one in which the accused was in the frontline care for AT.

GBW recounted to Mr Williams that the accused’s relationship with AT was such that the accused would be “in tears of frustration due to AT either crying a lot during the day, not wanting to be fed, just not wanting to be the hands on baby/mother sort of interaction going on during the day” (T32.17). GBW told Mr Williams that A would not let the accused dress, bath, or basically do anything without “throwing a tantrum” (T35.32). By way of contrast Mr BW had no such difficulties (T36.40).

After a grant of leave to the Crown to cross-examine GBW he conceded that the accused had been struggling with AT the entire time that she had been in their care, and they were hoping it would get better; however, it did not (T193.37 to 41). Significant patience was required to feed AT with some meals taking up to an hour to complete (T195.36 to 43), which on some occasions led the accused to force feed AT to the point where AT would vomit (T198.47). The events of 28 October 2018 must be looked at in light of the above evidence.

  1. The accused was alone with A in the period when A was last observed to be completely well when she was observed to be injured. Mr King submitted that there is little challenge to the evidence of the events in question on 28 October. He submits it is what can be conclusively drawn from the events that is in issue. GBW was the person who got A out of bed in the morning of Sunday 28 October 2018. He changed her and gave her breakfast. He then spent some time with A on the lounge before she became tired, and he put her back to bed before going outside. It is common ground that GBW was outside the house from about 10am until 7 to 8pm. He came into the house at lunchtime to assist with the feeding of the children. The accused was already feeding AT and JT.

  1. On the accused’s version A became so “worked up” during the time that the accused was trying to feed her that AT began to vomit. The accused described to the police that A was constantly crying whilst the accused was trying to wash her. She vomited a second time requiring washing, and a third time requiring washing. The accused’s version is that AT did not stop crying until after she returned to bed. At 1545 hours on 28 October 2018 she sent the following message to Ms Skewes,

“Shit. I just tried to feed her, fussed the whole way through it, then threw up three times. I just don’t know what to do. I can’t handle this” (exhibit 17).

  1. GBW heard the accused yelling from inside the house during the afternoon.

  2. Mr King concedes that the above evidence is relevant to take into account as part of the circumstantial case. He further submits that by the accused merely expressing upset or frustration does not necessarily lead to a conclusion that the accused physically assaulted A. He submits it is unlikely the accused would harm the child knowing that A was to be further examined at the Griffith Base Hospital on Monday 29 October 2018.

CONCLUSION

  1. I am satisfied that the bruises were developing and observed at the Griffith Hospital after transfer from Leeton. Mr King accepts that if the bruises were developing, which I am satisfied they were, “that this is some evidence that the trauma that resulted in the bruises was very recent in origin and almost certainly during the time in which A was in the sole care of the accused”: (accused’s submissions, para 39). I am satisfied that the bruise near the right ear came into existence as a result of the skull fracture. I am satisfied that A’s behaviour on 28 October was the culmination of weeks of difficulty that the accused has experienced in caring for A. She knew that other people did not experience the same difficulties, particularly her husband.

  2. I am satisfied that after the third vomit and the need to clean A that the accused was upset, frustrated and highly emotional. She acted recklessly towards the child. She did not intend to cause grievous bodily harm. In a highly emotional state she realised the possibility of actual bodily harm to A. The Crown is not required to prove that the accused realised that a serious injury, nor any particular type of injury, result from her actions. I am unable to make a finding as to the mechanism of injury other than there was blunt force trauma to A’s skull causing the non-displaced fracture.

  3. I am satisfied the fractured skull occurred on 28 October 2018 within the time period of the indictment. The bruise near the ear is indicative of a skull fracture bleed, placing the injury within the timeframe of the indictment. I am satisfied that,

  1. the accused caused grievous bodily harm to A, and

  2. the accused was reckless as to causing actual bodily harm, and I find the accused guilty of the charge.

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Decision last updated: 26 November 2020

Most Recent Citation
Cases Citing This Decision

2

R v Bird-Walton (a pseudonym)(no 2) [2021] NSWDC 23
Reyne (a pseudonym) v R [2022] NSWCCA 201
Cases Cited

6

Statutory Material Cited

2

Fleming v The Queen [1998] HCA 68
Swan v R [2016] NSWCCA 79
Haoui v R [2008] NSWCCA 209