R v Bourke (a pseudonym)

[2021] NSWDC 665

District Court

New South Wales

Medium Neutral Citation:

R v Bourke (a pseudonym) [2021] NSWDC 665

Hearing dates:

30 November 2021, 1 December 2021, 2 December 2021, 3 December 2021, 7 December 2021

Date of orders:

9 December 2021

Decision date:

09 December 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Verdict of Not Guilty

Catchwords:

CRIME – assault occasion actual bodily harm – victim 3 week old child

CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - expert evidence that a medical cause of injury highly unlikely - actual mechanism for injuries unknown - conflict of evidence - possibility of accident - who done it? - witnesses lie on oath – accused and key witness drug affected - reasons for not accepting key witnesses – suspicion is not proof beyond reasonable doubt

CRIMINAL PROCEDURE - Trial - Judge alone - fundamental principles applied

Legislation Cited:

Crimes Act 1900

Cases Cited:

Azzopardi v The Queen, (2001) 205 CLR 50; [2001] HCA 25;

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42

Evidence Act 1995

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Meissner v The Queen (1994-1995) 184 CLR 132; [1995] HCA 41

Plomp v The Queen1963) 110 CLR 234; [1963] HCA 44

RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3

The Queen v Baden-Clay [2016] HCA 35

TheQueenv Hillier (2007) 228 CLR 618; [2007] HCA 13

Weissensteiner v The Queen [(1993) 178 CLR 217; [1993] HCA 65.

Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category:

Principal judgment

Parties:

Steven Bourke (the accused)
Director of Public Prosecutions

Representation:

Counsel:
Mr P Williams (for the accused)
Mr M Fox, Crown Prosecutor

Solicitors:
Dillon-Smith Lawyers (for the accused)

File Number(s):

2021/00005130

Publication restriction:

The name of the child is not to be published, nor is any other information or material that could lead to the identification of a child. Accordingly, in this judgment the child and her parents and other family members will be referred to by pseudonyms: s578A of the Crimes Act 1900.

Judgement

Introduction

1. Frances was born at a NSW south coast hospital on 16 November 2020. Although 3 weeks premature she had what was described as an “uncomplicated” natural birth. She left hospital after 7 days to live with her mother Ms Hay and her great grandmother Ms Byron. Her father Mr Bourke lived nearby.

2. It is not in dispute that Mr Bourke and Ms Hay went out early in the morning of 6 December 2020 to buy cigarettes and methylamphetamine (ice), leaving Frances with her great grandmother. At that time Frances’ ‘corrected age,’ to take into account she was born premature, was one or two days old. On their return Ms Hay fed Frances. Ms Byron fell asleep on the lounge but woke to find Mr Bourke holding Frances and a bottle. Ms Hay was either in the room or came into the room soon after with a cloth and wiped up spilt milk from the child.

3. That morning Ms Hay brought Frances back to the hospital. She complained that Frances’ right arm was drooping. She and Frances were soon transferred to the regional hospital in Bega and later to Canberra Hospital. Frances was found to have marks on her right neck, a 1 cm bruise on her right anterior shoulder and a limp right arm with decreased movement. X rays and a skeletal examination revealed Frances had a fracture to her right clavicle or collar bone.

4. On 7 January 2021 Mr Bourke was arrested and charged with assaulting Frances and causing her actual bodily harm. Two factors were critical to that arrest:

1. A statement to police from Ms Byron that she awoke to a “piercing scream” to see Mr Bourke holding Frances and that she saw the child’s left arm looked unusual and looked out of position at the shoulder.

2. Expert medical evidence that the bruise and fractured clavicle could not have been caused at birth or in the usual course of handling of a child so young or self-inflicted. While Frances could be expected to wiggle her body and her arms and legs a child of that corrected age could not roll, pull vigorously: Exhibit R page 12.

5. Mr Bourke said he was not guilty. He was committed for trial to this Court during the current sittings at Bega. On legal advice he elected to have his trial heard by a judge sitting without a jury. That trial commenced before me at Bega on 30 November 2021. When arraigned Mr Bourke again said he was not guilty. Evidence concluded on 3 December 20201. Submissions concluded on 7 December 2021 and the trial was adjourned until today for verdict.

General Principles

Onus

6. The prosecution must prove each element of the offence beyond reasonable doubt. The accused has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I have no reasonable doubt the prosecution has proved beyond reasonable doubt each critical element of the offence charged. If the prosecution fail to meet that high onus, if I have doubts about their case, the accused must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count.

Elements

7. I must be satisfied beyond reasonable doubt that Mr Bourke:

On or about 6 December 2020 at Moruya assaulted Frances. In the context of this trial that involves proof that he intentionally applied of force to Frances without any lawful excuse. And, that the assault occasioned her actual bodily harm.

8. While it is necessary that the time and place of the offence and lack of consent must be proved beyond reasonable doubt these elements have not been put in issue. It is not in dispute that to fracture a baby’s clavicle is to cause her actual bodily harm. Actual bodily harm means any hurt or injury 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 affect upon the victim.

9. The issues in this trial include:

1. What caused the fractured clavicle?

2. When did that fracture occur?

3. Was its cause accidental or intentional? And critically;

4. If intentional, was it the accused who caused the injury?

Intention

10. Intention may be inferred or deduced from the proved facts and circumstances. In some cases, a person’s acts may themselves provide the most convincing evidence of their intentions. Where a specific result is the obvious and inevitable consequence of a person’s act, and where he deliberately does that act, I may readily conclude that he did that act with the intention of achieving that specific result.

11. When assessing what the accused’s intention was I do not take into account that he had chosen to use methylamphetamine and was affected by that drug on the morning of the 6 December 2020: s 428D Crimes Act 1900.

Accident

12. The Prosecution must not only establish that Mr Bourke caused the injury to Frances’ clavicle, it must also prove beyond reasonable doubt that the injury resulted from his conscious or deliberate and voluntary act. To put it another way Mr Bourke is not to be held criminally responsible for any act which was accidental.

Inferential reasoning

13. No one saw Mr Bourke harm Frances. The prosecution rely on a number of circumstances which if accepted, they submit, prove he was responsible. There are well settled principles relating to proof of a circumstantial case and the prosecution’s obligations to rebut any hypothesis consistent with innocence. They were set out by the High Court in The Queen v Baden-Clay [2016] HCA 35 at [47] - [50]:

1. When the case against an accused person rests substantially upon circumstantial evidence the judge or 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.'

2. To enable a judge or 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.’

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

4. In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.’

5. The evidence at trial is not to be looked at in a piecemeal fashion.

See also Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42: The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 and Plomp v The Queen1963) 110 CLR 234; [1963] HCA 44.

Expert evidence

14. I have heard and read evidence from medical experts; Dr Lee, Dr Stewart and Dr Harilal-Chawla. It is accepted that all are experts with specialised knowledge in their fields. Dr Lee as a general practitioner and Doctors Stewart and Harilal-Chawla are paediatric specialists. Each expressed opinions within their particular area of expertise.

15. The expert evidence was admitted to provide me with scientific information and opinion which was likely to be outside my experience and knowledge. The opinions given in evidence and other medical evidence contained in tendered documents was not challenged. Accordingly, I caution myself that unless I find what is agreed or uncontested, unbelievable, I would need to have a good reason to reject it — for example, that it does not fit with other facts, which I have found, proved. I also remind myself that this evidence relates only to part of the case, and that whilst it may be of assistance in reaching a verdict, I must reach my verdict having considered all the evidence called at trial.

Silence on arrest

16. The accused chose not to offer an explanation to the police on arrest. He had no obligation to do so, the burden of proof should never be undermined and no inference can be made against the accused for exercising a right that applies to us all.

Accused’s evidence

17. The accused gave evidence in answer to the case led by the prosecution. He has no onus or responsibility for proving his innocence. There is no obligation on him to persuade me to accept that evidence. But before I could convict him it is for the prosecution to satisfy me beyond reasonable doubt that you should reject what he says as a reasonably possible version of the facts.

18. There is a conflict between a version of the evidence given by Ms Byron and the evidence of the accused. A verdict cannot turn upon a simple choice between two inconsistent versions. Even if I answer to that question against the accused, that that answer does not conclude the issues for determination. I cannot find an issue against the accused if all the evidence at trial gives rise to a reasonable doubt as to that issue. To recap:

1. If I believe the account given by the accused obviously I must acquit.

2. If I have difficulty in accepting the accused’s evidence but think it might be true, then I must acquit.

3. If do not believe the accused’s evidence then I put it to one side. But, the question will remain: has the prosecution, upon the basis of evidence that I do accept, proved the accused’s guilt beyond reasonable doubt?

Assessing witnesses

19. For most people giving evidence in a trial is not common, and may be a stressful experience. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables - I must take care - the manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision. Rather, I assess the evidence “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events:” Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

20. In doing so I focus on what was said and done. I do not draw inferences based on generalities or stereotypes. For example; there is evidence the accused is an illicit drug user accused’s drug use and that at time he is relationship verbally abusive to Ms Hay, leading to his being banned from the local hospital. These matters were relevant to facts in issue but I cannot reason that because he was a drug user or used aggressive language he was more likely to have committed the offence.

21. This background evidence enabled the issues at trial to be properly considered in a realistic and intelligible context. I must not however use this evidence of other acts, some criminal, as establishing a tendency or propensity on the part of the accused to commit offences of the type charged. Nor can I substitute the evidence of the other acts for the evidence of the specific allegations contained in the charge before me.

Lies

22. A witness can be mistaken or perhaps confused but if a witness tells a lie; that is, says something which is untrue, knowing at the time of saying it that it is untrue, that lie can impact on the reliability and credibility of all their evidence generally.

23. Mr Crown submitted Mr Bourke lied on oath. I must give myself this warning while I can take into account any lie when assessing the weight to be given to his evidence I do not follow a process of reasoning to the effect that because he has person is shown to have told a lie about something, that is evidence of his guilt for the charge before the court: Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [23].

Unreliable evidence

24. Evidence can be unreliable for many reasons. A person may be repeating something they were told but did not witness. A person may have given very different versions of events. A person might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings.

25. In such cases I must be cautious in determining whether to accept the evidence and what weight should be given to it. Care is required where known factors can of themselves impact on the accuracy of what is recalled or the reliability of an account given. Caution is also required because it is notorious that a witness’s accuracy and reliability may be affected by factors that are not always easy to discern.

Evidence

Ms Byron

26. Ms Byron, now 74, initially told me that she now had little memory of the morning of 6 December 2020 but what she did recall could not explain the injury occurring at that time. To the contrary, she was adamant that Frances had had a troublesome shoulder since she was born and that she had seen it at birth as the midwife delivered Frances. Something she said the Doctor present at the delivery had failed to notice.

27. What she said in chief was in stark contrast to how Mr Crown had opened his case, her statement to police of 11 December 2020 and what she told police during a video recorded walk through of her home on 17 December 2020: exhibit M. It also contrasted with an even more graphic version given to her friend in Narooma, Ms Brown. That version, in turn can be contrasted with Ms Byron only an hour after speaking to her friend telling a police officer she had no concerns about the accused.

28. I gave Mr Crown leave to cross-examine Ms Byron on the many apparent inconsistencies between her initial evidence and her earlier versions to police and others: s38 & 192 Evidence Act 1995. She agreed she had told the police the truth and she accepted what was in her statement was true but that acceptance was reluctantly given.

29. When she made her statement she told the police that she was scared of Mr Bourke; scared for herself, her granddaughter and Frances. She told police that after Ms Hay and Mr Bourke returned Ms Hay had fed Frances and she had fallen asleep on the lounge. She said she woke to a “spine chilling” scream; a scream she would “never forget.” She saw Mr Bourke holding Frances with both his hands supporting the back of her head and rocking her up and down gently. She asked “what’s happened to her”. He replied “She’s got colic and she’s twisting in pain”. She said “that’s not colic, its something else”. Then Ms Hay came into the room and wiped vomited milk from Frances’ face. Ms Byron told police she saw Frances’ left shoulder was unusual and she had never seen it like that before.

30. In cross-examination she agreed with Mr Williams, counsel for the accused, that she had no concerns about Mr Bourke and that Frances had a problem left shoulder since birth. She also said that she had witnessed him feeding Frances where milk had poured on her because the wrong teat had been put on the bottle. She said there had also been an incident where Ms Hay had nodded off while feeding Frances and had nearly dropped her and had to grab her near her shoulder. She said this occurred days before but then she said it was that night but that she really couldn’t remember as she was “tired and confused”.

31. Although charming and polite, Ms Byron had a loose relationship with the truth. Whatever her agenda it did not involve informing the court about what had actually happened in the early morning of the 6 December 2020. She appeared very protective of her granddaughter. If she did in fact see or hear anything I could not be sure where the truth lay.

Ms Hay

32. It is important to note three things;

1. Ms Hay entered a guilty plea in the Local Court to knowingly conceal a serious offence - s 316 Crimes Act 1900 for her role in these proceedings. She was sentenced to 18 months imprisonment to be served in the community subject to an Intensive Corrections Order. Parts of the agreed facts on sentence were read into evidence during cross-examination. They were based primarily on Ms Byron’s police statement.

2. She has lost custody of Frances and wants her back. Understandably after this incident Frances was placed in foster care by Family and Community Services. There are child welfare proceedings currently before the Children’s Court.

3. Ms Hay’s evidence was unfavourable to the prosecution and leave was given for her to be cross-examined by the Crown: ss 38 & 192 EvidenceAct.

33. Ms Hay told me she lied to police to protect Mr Bourke by claiming Frances’ injury may have been caused accidentally when Frances’ arm caught in her dressing gown during feeding. But when pressed said she wanted to protect him because she feared he would be wrongly accused of hurting Frances. She said she had witnessed Frances’ arm get caught in his singlet during feeding. She also said there was a problem with Frances’ left arm since birth and she had a photograph from that time that showed a bruise. The photograph when produced was inconclusive: exhibit G. She still believes the injury happened at birth and that no one has hurt Frances.

34. She said she and Ms Byron took Frances to the local hospital the afternoon or evening of 5 December 2020 because she had sniffles and because of her shoulder but that they were turned away. No records corroborate this account. She said she took Frances back the next morning for those same reasons and because of the milk overflow issue while bottle feeding. She was breast feeding but also expressed milk and bottle fed so that a supplement could be added. She said had been given and used the wrong size teats.

35. She said she and Mr Bourke went out about midnight on the night of the 5^th to get some smokes from the late night Servo. She returned and fed the baby and took her to bed with her. She later said after the fed, Mr Bourke gave Frances a bottle while in the kitchen that looks onto the lounge. She left for a short time and as she came back there was an incident where Frances had had milk splash in her eyes and had cried. She also said Frances’ shoulder looked unusual. Then he left. The following morning she took Frances to the hospital. She said she never saw anyone hurt Frances. And she remained adamant “no one hurt my daughter.”

33. She accepted she had entered a guilty plea to conceal a serious offence on facts based on the version initially given by Ms Byron but she said she did so on legal advice, not because she accepted that version as true. I note however, that while a plea of guilty constitutes an admission of the essential elements of the offence charged it may be entered for all manner of reasons including “to protect … family or friends; or in the hope of obtaining a more lenient sentence than … if convicted after a plea of not guilty.”: Meissner v The Queen (1994-1995) 184 CLR 132; [1995] HCA 41, Dawson J at p157.

34. In cross-examination she reiterated that she was not covering for Mr Bourke. She still believed he had been falsely accused. She accepted that she had used methylamphetamine in the early hours of 6 December and that later she had nodded off while holding Frances and grabbed at her as she slipped from her arms. She said she did not drop Frances. She also said there was an incident that morning where Frances had cried when the wrong teat led to her swallowing too much milk. She also described how Frances’ arm had got caught in Mr Bourke’s singlet.

35. She was not a good historian. Her biggest concern was losing custody of Frances.

Ms Brown

39. Ms Brown was called to bolster Ms Byron’s initial account, given the attack on her credibility by the defence: s 106 Evidence Act. The account given to Ms Brown included not only a blood curdling scream from Frances but a description of how Mr Bourke held and shook Frances as he told her to “shut the fuck up.” Ms Brown said she was told of an injury to Frances’ lip and that he had been bottle feeding her in a way that caused her to gag and turn blue. Ms Brown said her friend was anxious scared and did not know what to do.

Police witnesses

40. Sergeant Whitton and the officer in Charge Detective Senior Constable Emerton detailed their investigations and what they were told by medical staff at the local hospital and Bega hospital. Initially, Ms Hay had said she had no concerns about Mr Bourke but she had given differing accounts about how Frances had caught her arm in clothing. While a Doctor at Bega had explained the marks on Frances’ neck may have come from self-inflicted scratches initial reports that scans were normal were soon updated and revised. A conclusion was soon reached that Frances had been assaulted.

41. A small number of transcripts, taken from a large quantity of authorised telephone intercepts, were tendered through Senior Constable Emerton: exhibit P. An example of one conversation where Mr Bourke ‘vented’ against Ms Hay was also tendered (over objection): exhibit Q.

Dr Lee

42. Dr Lee, a locum, at the local hospital was the first doctor to see Frances on 6 December 2020. He said there were “alarm bells” as the injury was not consistent with the history he got from the mother or great grandmother and those histories differed. He said other concerns were Ms Hay’s refusal of a skeletal survey and the proposed transfer to Bega. He also noted marks on Ms Hay’s arm inconsistent with her statement that she was not an illicit drug user. He thought Ms Hay was lying.

Dr Stewart

43. Dr Stewart’s partially redacted report was exhibit R. She had comprehensively reviewed all medical records, including the initial Suspected Child Abuse and Neglect (SCAN) medical protocol: exhibit J.

44. She was taken through her report in evidence. She explained that as Frances was born prematurely and that after “correction” she was regarded as a newborn; with a newly born child’s muscle development and reflexes. A child of that age could not have self-inflicted the injuries noted. All newborns do, she said, is “wiggle, sleep and poo.” They need careful holding and do not have the muscle development to do anything with force. Their range of movement is limited.

45. In her opinion the injury to the neck, the bruise to the soft tissue on the deltoid or upper arm and the fracture to the clavicle or collar bone were all caused at the same time. She could not however put forward a mechanism for the injuries but she could say it was due to forces much greater than normal day to day handling. Medically caused clavicle injuries were sometimes found in newborn’s because in a complex birth twisting or pulling of the child can be required to save its life from placental cord obstruction - known as “dystocia.”

46. She discounted the fractured collar bone being caused at birth because X-rays showed no signs of healing, such as callousing. And as there were no unusual features in the hospital notes before Frances was discharged. To the contrary, testing at day 4 showed Frances’ “primitive reflexes were intact”; that is, she had normal reflexes when a ‘Moro’ or ‘parachute’ or ‘startle’ test was done. A Moro test involves the baby, while being carefully cradled, being allowed to drop lightly. A normal response is that both the baby’s arms spread out from the body symmetrically. This, she contrasted, with a Moro test done at the local hospital before Frances’ transfer to Bega, where it was noted Frances was “not moving symmetrically.” She said all of the matters raised initially by Dr Lee raised “red flags.”

47. The fracture was minimally displaced and no bruise was associated with it. The other neck injury had resolved by the time she saw Frances but it is shown in the photographs in exhibit C. She said a child of Frances’ age would feel pain and that a “pain” scream was quite distinct from a cry from and child showing discomfort or colic symptoms.

48. Such clavicle fractures, she said, are extremely rarely caused by accident. She did accept that if a child was dropped and grabbed the sort of forces exerted may possibly fracture a clavicle.

49. Medical records reveal a complaint was made that Frances’ may have been shaken but later testing at Canberra Hospital revealed no retinal haemorrhages or obvious sign of swelling or bleeding in the brain. Had such findings been made they would be consistent with the child’s head having been shaken: see also exhibit R, at pages 9 & 10.

Dr Haril–Chawla

50. Dr Haril-Chawla gave evidence and her report was tendered as exhibit S. She was responsible for Frances’ care when she arrived at the Canberra Hospital. In her opinion dystocia was not the cause of the clavicle facture, although she noted “there can be no certainty in medicine”. She agreed with Dr Stewart that a child’s arm getting caught in clothing could not produce the forces necessary to cause the injury.

Mr Bourke

51. Mr Bourke gave evidence in response to the allegations against him. He denied ever hurting Frances. He admitted he had used methylamphetamine the morning Frances was injured. He also said that although Ms Hay had also used methylamphetamine, she appeared tired when she was holding the baby early that morning.

52. He said he saw Ms Hay cradling Frances and Frances’ back being bent over her right arm. Ms Hay was nodding off and dropped her and had to grab her right shoulder to prevent her falling to the ground. He said soon after he fed Frances and she cried as too much milk had gone into her mouth from the wrong teat. He said he had not noticed any injury on her.

53. In cross-examination Mr Crown put to him the version of events derived from what Ms Byron told Ms Brown. He denied ever shaking Frances. He accepted, reluctantly, that he could at times be aggressive and irritable with Ms Hay, the sort of behaviour displayed in exhibit Q. But he denied being aggressive to Ms Hay or Ms Byron that morning. He said that he’d commonly ‘vent’ but this behaviour was not associated with his methylamphetamine use.

54. When it was put he could have intervened to stop Frances falling as Ms Hay nodded off, he said he had no time “it was that quick.” And she “wouldn’t let me take the baby.” He accepted that he had not mentioned the dropping incident when he was speaking to others, such as his daughter or drug supplier, as recorded in exhibit P. He said Ms Byron had not commented about Frances’ arm that morning but he thought Ms Hay said her arm was “not right.” And at the time he didn’t think the ‘drop’ had caused it.

55. While he denied “staging” the phone calls he did say he was aware police could record phone calls as it had happened to him before. He again denied shaking or otherwise injuring Frances.

Submissions

56. Mr Fox, Crown Prosecutor, placed considerable importance on the accounts given by Ms Byron to police in her initial statement and to her then friend, Ms Brown. He said that although Ms Byron said she was confused by cross-examination the basic details of her accounts were consistent in the sequence of what occurred and the key elements of her account. He said any discrepancies could be accounted for by her age, confusion and continuing fear of the accused.

57. He asked me to accept that the version given to Ms Brown was the most accurate and complete version she gave: a version given to a friend to whom she could talk freely without fear of possible repercussions: a version given soon after the event and accompanied by real signs of distress at what she had seen and demonstrations of what was done to Frances when shaken by the accused. Her later statement to Detective Emerton at 2pm on the 5^th that she had “no concerns re the father” should be read in that context. So too another statement made to hospital staff that she “didn’t want [Ms Hay] to go down for it.”

58. He said, despite all the versions given by Ms Hay, I could be sure of three things-

1. She did not drop her child and have to grab her.

2. She did not injure her child.

3. For whatever reason she was reluctant still to implicate the accused, despite having entered a guilty plea in the Local Court to concealing his serious offence.

59. He said I would reject the accused accounts in the intercepted calls because it was obvious he suspected the calls were being recorded and staged what he said accordingly. He said I would reject his account in evidence as a lie that goes to his credibility. A lie constructed only after he had heard all the evidence presented at trial. Mr Crown noted that until he gave evidence the accused had never said to anyone that Ms Hay may have caused the injury by grabbing Frances after dropping her.

60. He said a careful review of the evidence would show that there was nothing wrong with Frances before the accused started to feed her but there was something wrong with her afterward. He drew my attention to a text Ms Hay sent the accused the following morning at 7:09 AM before she went to the hospital; “Think I found the problem with bub…”:exhibit A.

61. He said there was only one thing that could have caused Frances’ right shoulder bruise and fractured clavicle, an unlawful assault by the accused on his child. He said I would be satisfied that the version given by Ms Byron to Ms Brown was accurate and reliable – Mr Bourke was affected by the methylamphetamine he had taken early; he became angry and enraged; he lost his cool as he has done before; he tried to feed Frances her bottle but the bottle overflowed and after abusing her he shook her causing the injury to her shoulder and clavicle. He submitted nothing else could account for the scream let out by Frances while in Mr Bourke’s arms. He submitted all other inferences had been excluded beyond reasonable doubt.

62. In response Mr Williams asked: what evidence established Frances had been shaken? The medical evidence did not show any signs of head injury or eye injury or bruising consistent with being held by both hands as Ms Brown said Ms Byron described. And, no expert had put forward a mechanism that could account for the injuries other than to say what was unlikely. They could not rule out the possibility that Frances had been dropped and caught as Mr Bourke said he observed. And, it was not, in any event for him to prove that was the cause.

63. He said given Ms Hay’s drug habit the alternative version was not implausible and that anything she said, at any time, lacked credibility.

64. He said a close examination of Ms Byron’s various accounts would show:

1. The version recounted by Ms Brown was not accurate and did not match the injuries noted.

2. Emma was in the room when the shaking was supposed to have occurred.

3. Ms Byron woke to find Mr Bourke cradling the baby in an appropriate way

4. I could not be certain when the injury was first seen by either Ms Hay or Ms Byron.

5. Ms Hay had almost dropped and grabbed the baby earlier that night.

6. She was not concerned about Mr Bourke and was not in fear of him; then or now.

7. She did not want her granddaughter to go down for this and would say whatever it took to protect her.

65. He said I could not discount Mr Bourke’s evidence. He had made no admissions. While his conduct toward Ms Hay and his behaviour toward the hospital staff after Frances’ birth did him no credit, his conduct toward Frances was consistent - caring and considerate, someone who helped Ms Hay care for their child.

66. Mr Williams submitted that when I carefully examined the expert evidence the Crown’s theory was not the only rational inference available - at least one other remains – an accident when the child was with the mother.

Determination

67. It is possible Mr Bourke did something to Frances on the morning of 6 December 2020 that bruised her shoulder and fractured her clavicle, causing her to emit a “pain” scream but a criminal trial is not decided on possibilities. I accept he can at times get angry and express that anger verbally. He had recently taken methylamphetamine. It is notorious that under the influence of drugs people do things that would not otherwise do. But Mr Bourke is not on trial for being an angry methylamphetamine user. He is on trial for assaulting his child and causing her actual bodily harm.

68. Accordingly, it is for the prosecution to prove the accused assaulted Frances to the beyond reasonable doubt standard. To do so they have to prove that the injury occurred while Mr Bourke was holding the child at about the time the bottle over flowed.

69. The expert evidence rules out the child’s injury occurring other than by the application of force. The question is; can it be proved beyond reasonable doubt it occurred while the child was in the accused’s arms?

70. It is not in dispute the accused did hold the child this morning. He has not advanced any evidence to support a proposition the child was injured by accident, such as him accidentally dropping her. A possible cause advanced that she caught her arm in clothing could not, as each paediatrician stated, exert the force required to cause a fractured clavicle.

71. No expert suggests a mechanism for either the bruise or the clavicle fracture other than to say a bruise results from blunt force trauma and to fracture the clavicle of a child so young whose bones a very requires considerable force to fractured clavicle: exhibit R page 12. The injury to the child did not have a medical cause.

72. It is not in serious dispute that the child did not have an injury before the accused and Ms Hay left the home to purchase cigarettes and methylamphetamine about midnight. It is not in dispute the child had the injuries when presented to the local Hospital later that morning.

73. While the burden of proof can never be undermined; if the injury to the clavicle was caused while the child was in his arms at a time Ms Byron heard a “pain” scream there could be no other explanation other than that Mr Bourke was the one who exerted the force necessary to cause the bruise and fracture the Frances’ clavicle. No other plausible explanation for the “pain” scream was offered as the only evidence of a possible accidental injury (arm caught in clothing) has not been ruled out by expert evidence. Given his drug use must not be taken into account the accused’s his denials would have to be rejected and his intention to cause that injury proved beyond reasonable doubt: Azzopardi v The Queen, (2001) 205 CLR 50; [2001] HCA 25; RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Weissensteiner v The Queen [(1993) 178 CLR 217; [1993] HCA 65.

74. The Crown accept that Ms Hay’s evidence was “scattered and incoherent.” I could not rely on any account she gave unless what she said was corroborated. To the extent that some things she said were supported by Ms Byron the fact that she was very protective of her granddaughter reduces the weight of that evidence significantly. One example suffices; both Ms Hay and Ms Byron, at trial maintained that Frances’ had had a problem with her shoulder since birth. That assertion flies in the face of all the other evidence at trial. It can however be said with some certainty that on the evidence before me; Frances’ injury was not the result of birth trauma, nor did it have a medical cause. And it occurred after she left hospital for the first time.

75. The Crown thus depends on Ms Byron. In particular the assertions she made to Ms Brown. Ms Byron was the only one who says she heard a “pain” scream.

76. I accept Ms Brown was and honest and witness given an accurate account of what she was told by Ms Byron. But Ms Brown was totally reliant on the account given by Ms Byron. That account, if true was not supported fully by the expert evidence. No evidence of shaking type injuries or a lip injury were found on Frances.

77. Ms Byron says the accused was holding the child at the time she heard the scream. The medical evidence is that Frances would have felt the pain of the fracture and that babies emit pain cries. If I could confidentially accept Ms Byron as a witness of truth then those circumstances would point toward a conclusion Frances was injured while in her father’s arms. But Ms Byron was not an honest, accurate or reliable witness. She was not a truthful witness

78. I cannot be confident about anything said by Ms Byron. There is no reason to believe any particular version of the many accounts she gave. She may have been confused but I doubt it. She may have been in fear of Mr Bourke but she had an even more powerful motivation - protection of her granddaughter. She was not truthful to the police. She was not truthful in court. She was not truthful in her account to her former friend Ms Brown.

79. The accused was drug affected this night. He has advanced a number of possible reasons for the child’s injury. It may be that he knew or suspected his phone calls were being intercepted. He was not a particularly impressive witness and he had the opportunity to tailor his account to fit in with the evidence led at trial. He can get angry and his behaviour toward Ms Hay was at times overbearing. He often took opportunities to blame her.

80. I accept he could be threatening; and that others may have been in fear of him, but there is no evidence, other than what Ms Byron told Ms Brown and the police, that he was not at all time careful with Frances and concerned for her welfare. Ms Byron demonstrated how he was holding Frances when she awoke to what she said was a “chilling cry” - he was cradling her appropriately. He made no admissions. His denials cannot be completely discounted but they could not have withstood a powerful circumstantial case against him. This was not however a powerful circumstantial case.

81. I accept that someone injured Frances on the night of 5 December or the morning of 6 December 2020 and that injury caused her actual bodily harm. However, I have no confidence at all in the evidence of any witness who had care and control of Frances over that period. Suspicious as I am the accused must have the benefit of the doubt.

Order

82. Verdict - Not Guilty

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Decision last updated: 09 December 2021