R v Campbell - [2005] NSWCCA 132

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Campbell [2005] NSWCCA 132

FILE NUMBER(S):
2005/95

HEARING DATE(S): 7 April 2005

JUDGMENT DATE: 13/04/2005

PARTIES:
Regina v Marie Elaine Campbell

JUDGMENT OF: Spigelman CJ Studdert J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/61/0216

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

COUNSEL:
J. Bennett SC (Crown)
A. Francis (Appellant)

SOLICITORS:
S. Kavanagh (Crown)
S.E. O'Connor (Appellant)

CATCHWORDS:
Lies told by accused
lies affecting credibility
Crown Prosecutor's address invited jury conclusion that lies evidenced consciousness of guilt
necessity for jury to be instructed in the circumstances that it should not use a lie as evidence of guilt.

LEGISLATION CITED:
Crimes Act, s 35
Criminal Appeal Rules, r 4

DECISION:
Appeal allowed; appellant's conviction and sentence quashed; new trial ordered.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/95
SPIGELMAN CJ
STUDDERT J
GREG JAMES J
Wednesday 13 April 2005

REGINA v MARIE ELAINE CAMPBELL

Judgment

SPIGELMAN CJ: I agree with Studdert J.
STUDDERT J: Following trial in the District Court, the appellant, Marie Campbell, was found guilty of the crime of maliciously inflicting grievous bodily harm in contravention of s 35(b) of the Crimes Act. Following conviction, the appellant was sentenced on 25 June 2004 to a head sentence of four years six months with a non parole period of eighteen months. The sentence commenced on 25 June 2004.
The appellant does not seek leave to appeal against the sentence imposed, but brings this appeal against her conviction.
The facts outlined
The alleged victim was an infant child named Alexandra Whelan, who was born on 24 July 2000 and the offence was allegedly committed on 1 February 2002. The appellant was engaged by the parents of the child to look after her, together with her sisters, one of whom was born on 17 December 1998 and the other of whom was the victim’s twin sister.
The appellant first acted as babysitter for the eldest child when she was six months of age. Then, after the twins were born, their mother went back to work in about November 2000 and from that time on the appellant looked after the three children. The father of the children was a Corrective Services officer and his wife was a nurse who was studying midwifery at the Charles Sturt University.
In the week commencing Monday 28 January 2002 Mrs Whelan went to do a week’s residential course at Wagga. On 31 January 2002, whilst Mr Whelan was at work, the appellant, who was then caring for the children, informed him that the dog had knocked Alexandra over and that she hit her head. Mr Whelan noted when he returned home that Alexandra had a small bruise on her forehead and this was observed to be larger on 2 February 2002, the date upon which the offence was alleged to have been committed. However, according to Mr Whelan, Alexandra appeared to be well when he left for work that day.…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Campbell

Details

AGLC: R v Campbell [2005] NSWCCA 132
Case: [2005] NSWCCA 132
Decision Date: 13 April 2005

CaseChat Overview and Summary

The appellant, Campbell, appeals against her conviction for causing the death of a three-month-old child, Alexandra Whelan, through shaking and/or contact injury to the brain. The appellant was engaged by the child's parents to look after her and her sisters. On 1 February 2002, while the appellant was caring for the child, she called an ambulance reporting that the child had "gone funny". Upon the father's return, he found Alexandra unconscious in the back of an ambulance. Medical evidence indicated that the child had suffered severe brain injuries consistent with abusive head trauma, not accidental falls or injuries from a dog. The appellant claimed that the child had fallen while she was carrying her, resulting in an accidental injury.

The primary legal issues were whether the appellant's account of the incident was credible and whether her lies about the circumstances of the injury could be used as evidence of her guilt. The appellant argued that the jury should not have been allowed to consider her lies as indicative of her guilt, as they were not directly related to the cause of the child's injuries. The Crown argued that the lies demonstrated the appellant's consciousness of guilt, which was relevant to her credibility as a witness.

The court held that while the appellant's lies were relevant to her credibility, they could not be used as substantive evidence of her guilt. The jury needed to be properly instructed to avoid conflating the lies with the evidence of the actual cause of the child's injuries. The court found that the appellant's account of an accidental fall was inconsistent with the medical evidence of the child's injuries. The jury was properly instructed to consider the lies in the context of the appellant's credibility but not as direct evidence of her guilt for the offence. The appeal was dismissed, and the conviction was upheld.

The court's final order was that the appeal against the conviction was dismissed, and the conviction for causing death by dangerous conduct was upheld.

Orders

Orders of the court

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Background

Background to the litigation

The appellant does not seek leave to appeal against the sentence imposed, but brings this appeal against her conviction.The facts outlined The alleged victim was an infant child named Alexandra Whelan, who was born on 24 July 2000 and the offence was allegedly committed on 1 February 2002. The appellant was engaged by the parents of the child to look after her, together with her sisters, one of whom was born on 17 December 1998 and the other of whom was the victim’s twin sister. The appellant first acted as babysitter for the eldest child when she was six months of age. Then, after the twins were born, their mother went back to work in about November 2000 and from that time on the appellant looked after the three children. The father of the children was a Corrective Services officer and his wife was a nurse who was studying midwifery at the Charles Sturt University. In the week commencing Monday 28 January 2002 Mrs Whelan went to do a week’s residential course at Wagga. On 31 January 2002, whilst Mr Whelan was at work, the appellant, who was then caring for the children, informed him that the dog had knocked Alexandra over and that she hit her head. Mr Whelan noted when he returned home that Alexandra had a small bruise on her forehead and this was observed to be larger on 2 February 2002, the date upon which the offence was alleged to have been committed. However, according to Mr Whelan, Alexandra appeared to be well when he left for work that day. When he returned home for the period between 12.20 pm and 1.30 pm he saw the twins were awake and that they were seated on a lounge eating. The twins were left in the appellant’s care at 1.30 pm and the appellant telephoned Mr Whelan at 3.30 pm to advise him she had called an ambulance because Alexandra had “gone funny”. On his return home, Mr Whelan observed the appellant standing on the front lawn with the other two children and Alexandra was lying unconscious in the back of an ambulance. The child was taken to Dubbo Base Hospital, where she came under the care of Dr Hardacre. The child was unconscious, breathing irregularly and there was stiffening of the arms and legs associated with deep brain injury. Dr Hardacre was informed that the appellant had been looking after the child at the time the injuries were sustained, and Mr Whelan gave him permission to ring the appellant to find out what had occurred. The account Dr Hardacre was given by the appellant was one of a number of accounts which it becomes necessary to consider, having regard to the grounds of appeal. The Crown case was that Alexandra had suffered brain damage shortly before the appellant telephoned for an ambulance at 3.39 pm on 1 February 2002. Since the only adult present in the Whelan home at the critical time was the appellant, the Crown case was the appellant must have caused the harm. The appellant denied that she shook or intentionally injured the child but told the jury that there was an accidental fall. She said that whilst she was carrying Alexandra she tripped and fell onto a concrete floor whilst negotiating a doorway (T 443):“I was hurrying and my shoe got caught in – there’s two tracks across the step and my shoe went down like that, and it threw me out – I was thrown out and down and I fell half on top of Alexandra and her head hit the floor.”

Evidence

Evidence Before The Court

The above account of the appellant was the only direct evidence as to what happened. There was a lively issue at the trial as to whether that account was to be accepted.The medical evidence Alexandra was airlifted to Prince of Wales Hospital where she was assessed by Dr Moran, a paediatrician with the Sydney Children’s Hospital, and by Dr Kennedy, a specialist paediatric ophthalmologist. The Crown relied upon the evidence which these two specialists gave. The appellant called no medical evidence. In short, it was the Crown case that the appellant had shaken the baby, causing a rapid acceleration of the brain, and this was possibly associated with a soft surface impact that may have resulted in a deceleration of the brain. The child sustained diffuse brain injury with bilateral preretinal haemorrhages and acute subdural haemorrhages that caused unconsciousness. Whilst at Dubbo Base Hospital, CAT scans were performed which showed soft tissue swelling at the back of the head. They also revealed bilateral subdural haemorrhages, described as old, and an area suggestive of a fresh bleed on the right side. A subsequent scan at the Children’s Hospital on 5 February confirmed those findings. Dr Moran examined the plaintiff on 4 February 2002. When he examined her, Alexandra had an impaired level of consciousness and was moving her right limb more readily than her left. This indicated brain damage. Dr Moran agreed that a direct blow to the back of the head could cause bleeding within the brain or subdural haemorrhages and also retinal haemorrhages. However, in the opinion of Dr Moran, had the child fallen and hit her head on concrete, that was not the sort of trauma that would cause the retinal haemorrhages (T 277):“I think I can fairly confidently say that that sort of injury from a fall [referring to the soft tissue swelling at the back of the head] would not cause the retinal [haemorrhages]. So, in other words, if we look at the soft tissue swelling, if that represents a fall onto something, it would be most unusual that that would have retinal haemorrhages of the type we see in this child associated with it, in fact it has never been described.” Then, when asked about the subdural haemorrhage, Dr Moran went on (T 277):“The subdural haemorrhage – could the subdural haemorrhage be associated with the fall such as this? And the answer is that she could get a subdural haemorrhage. Usually you would expect to see the subdural haemorrhage directly underneath the area of impact and in the case we’re talking about, it’s not. The other question I guess is, could you get the damage to the brain that we see in this child from a fall such as this? I think that would be most unlikely as well.” Dr Moran considered that there was no history of accidental injury and no evidence of medical conditions that could account for Alexandra’s clinical findings (T 304). They could not have been caused by the dog knocking her down. Dr Moran was asked these questions and gave these answers (T 304-305):“CROWN PROSECUTOR: Q. You also say that the eye injuries, the recent subdural haemorrhage, that’s the fresh bleed?A. Yes.Q. And the brain injury--A. Yes.Q. –that’s the injury to the white matter and the basal ganglia?A. Yes.Q. Those injuries could result from a variety of mechanisms you stated including shaking, contact forces, hypoxic ischaemic injury which is basically a lack of blood supply, and secondary metabolite accumulations causing cell damage in the brain, and you’ve stated that in your opinion these injuries are the result of abusive head trauma?A. Yes. When I just look at that again I think perhaps what I should say there is – lest there be any – lest this could be misconstrued, it’s from a combination of these mechanisms.Q. A combination of which mechanisms?A. Of the shaking, contact forces, hypoxic ischaemic injury and secondary metabolite accumulations causing cell damage in the brain.HIS HONOUR: Q. What do you mean by abuse head trauma?A. Well rather than I guess accidental head trauma. Some form of shaking and/or contact injury to the brain, and – yes, that’s what I mean by that...Q. Is there evidence of contact injury here?A. Well there was evidence – if we take – if we accept that there was the bruising there, that could be evidence.Q. Bruising there you mean of the occipital area?A. Yes, that could be evidence of contact injury, but as far as I was concerned at the time, the only evidence that I saw was old bruising on the head, so there wasn’t any absolute evidence of contact injury.Q. So what’s the mechanism by which these injuries were received then?A. The mechanism in my view was that the child had rapid rotational acceleration of her head which could occur with shaking and that could include contact injury. In other words, at the same time hitting something but not necessarily showing that as not necessarily having any bruising or a fracture. So, for instance, the bruising you shook somebody and then their head came in contact with let’s say a piece of – a padded fabric, for instance, on a – on a chair, that wouldn’t necessarily leave any bruising but there would be a very rapid deceleration of the head and that could lead to these sorts of injuries that we see here.”

Decision

Reasons for decision

SPIGELMAN CJ STUDDERT J

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ STUDDERT J

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