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. 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.”
She said it would have been the back of the child’s head that hit the floor. The floor surface was cement with lino over it.
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.”
And then (T 308):
“HIS HONOUR: Q. What happened in this case in your opinion to Alexandra?
A. Well in my opinion one of two things happened, or both of these things happened, and that is that there was some shaking causing whip lashing and the head impacted something or else there was just purely shaking alone. My view would be that in a child of this age it would be much more likely that you would have some impact causing the injury as well.
CROWN PROSECUTOR: Q. The fact that she was well and the fact that you have seen the video taken that morning, she was well just before her going unconscious, do you have a view as to when the injuries were sustained, the injuries that made her unconscious?
A. Yes, I think it is highly unlikely that injury to this degree, that produces pretty much instant unconsciousness it would appear from the history, so that the child was well at one stage and then was unconscious a few seconds later, that that – so the injury must have occurred in close proximity to the time she became unconscious. Very close proximity, or indeed immediately.”
Dr Moran rejected the possibility that a fall from a highchair onto the lino-covered concrete floor would have caused the injuries the victim suffered (T 320).
In cross examination, Dr Moran agreed that the pulpy mass at the back of the child’s head could have been caused by a fall when the child was being carried. Dr Moran was then asked whether, if there was a fall, this could account for the retinal haemorrhages (T 363):
“Q. Secondly, could a fall in those circumstances account for the retinal haemorrhages as observed by you?
A. I’m not in a position – I think that they would be unusual under those circumstances but I’m not in a position to say to you that they could not occur but I would consider them extremely unusual under those circumstances.
Q. It would depend essentially on the extent to which the head did move on its axis during the course of the fall and the way in which it struck the floor at the point of impact with the floor, is that right?
A. Well I think it depends, as I said there has been a suggestion that occipital impacts may cause more in the way of retinal haemorrhage than other impacts. I think that there is a significant degree of rotational acceleration in the scenario that you describe, whether or not – certainly traditionally I think I would have to say that a lot of people would say, no that the retinal haemorrhages could not occur under those circumstances that they’re too wide spread, too diffuse and that they only occur with shaking. I’m not so sure that I could agree entirely with that proposition now, so while I would say that they’re unusual I don’t think I’d be able to say that they couldn’t have occurred under those circumstances.
Q. A fall in those circumstances could also account I suggest to you for the fresh bleed or the area of the fresh subdural haemorrhage that you’ve given evidence about?
A. Yes.
Q. And a fall in those circumstances could account also for the instantaneous loss of consciousness, couldn’t it?
A. I would say yes, yeah.”
Dr Kennedy, who was the head of the Department of Paediatric Ophthalmology at Sydney Children’s Hospital, examined Alexandra on 12 February 2002 after an MRI scan. He reported that the child had many retinal haemorrhages in both eyes and that these were both retinal and preretinal. He believed that the presence and extent of the haemorrhages in the various retinal layers indicated a violent and repeated shaking, and this was a pattern seen in non-accidental injury. The pattern of retinal haemorrhages with accidental injury was usually a little different. His evidence (T 394) was as follows:
“CROWN PROSECUTOR: Q. You also say at point 4 of your statement, the presence of haemorrhages in various retinal layers extending out to the retinal periphery, would indicate to you that this was due to violent and repeated shaking, a pattern seen in non accidental injury?
A. I believe so yes.
Q. Is that your expert view on the cause of--
A. That’s my view.
Q. Can you think of any other cause of retinal haemorrhage apart from violent and repeated shaking?
A. Yes, retinal haemorrhages are not specific obviously, retinal haemorrhages can occur occasionally in accidental injury, although the pattern is a little different usually. They can occur in bleeding disorders such as the leukemias, meningitis, some rare metabolic disorders, it can occur after childbirth even, is quite common after childbirth. You see retinal haemorrhages in some other diseases of the eye, such as retinopathy of the prematurity iseikal (?) cell disease, and there’s a list of a number of causes of retinal haemorrhages. However the pattern is by and large a little different, but it’s usually not as extensive as this.
Q. Are you able to comment on the pattern in Alexandra’s retinal haemorrhaging and relate that to your view of – the cause of it?
A. Yes the pattern that I observed was – what I commonly see in what I term non accidental injury or inflicted injury if you like.
Q. And does the pattern include the position on the retina of where these haemorrhages were?
A. The position and the extent.”
Then (T 395):
“Q. You’ve said that in your view the retinal haemorrhages are most likely due to the violent and repeated shaking, a pattern seen in non accidental injury, are you able to say what causes the retinal haemorrhaging from the shaking?
A. The current general view of the causation of the retinal haemorrhage is that it’s – it’s a shearing force, the shaking causes a repeated shearing force between the jelly that fills the eye and the retina, to which it is attached as a young child. So the light blue of the diagram which is the cavity if you like of the interior of the eye is filled with a jelly, and that is actually attached to the retina, and those shearing forces puts stress on the blood vessels on the surface of and within the retina which causes the bleeding. That is the current general view that the ophthalmological community if you like take.
Q. These forces set up from the shaking, would you agree that they are described as rotational forces?
A. Yes rotational forces.”
Dr Kennedy was then asked these questions and gave these answers (T 396):
“Q. Are you able to comment on the duration of time that the shaking would have to last to cause the retinal haemorrhaging that you saw in Alexandra’ case?
A. No I couldn’t there’s been no – obviously you can’t do a control trial to see what forces you need to create haemorrhages, it’s something you can’t – experimentally you can’t do, so we don’t know the extent of the force needed. We do – there has been some sort of estimation of people falling out of buildings, being in fast accelerating vehicles or this sort of thing, bungy jumpers can get retinal haemorrhages occasionally, but it’s thought to be considerable if it’s a translational force. In other words if you just – if you’re thrown from a motor vehicle or fall out of a building, it’s not just a short bump that causes the – short fall that generally causes a haemorrhage, you’ve usually got to – it’s got to be considerable if it’s due to say a head injury.
Q. Would you consider a short fall to be a fall from a high chair?
A. Yes.
CROWN PROSECUTOR: Can Dr Kennedy be shown C16 please your Honour, just that it’s a high chair, it’s relevant to this case.
Q. Just as a hypothetical situation, say Alexandra fell from the seating part of that and she fell onto a concrete floor, would that cause the pattern?
A. No I don’t believe so.”
In cross examination, Dr Kennedy agreed that it would be possible for retinal haemorrhages of the type here seen to occur in a fall. He was asked these questions and gave these answers (T 400):
“Q. And for example it would be possible for retinal haemorrhages of the kind that you saw to be created if a person fell in a particular way and hit their head a piece of protruding concrete, that’s one example I think where you would allow for retinal haemorrhages to possibly occur of the type you’ve described?
A. Yes in less than three per cent of cases, that’s the papers that have – that sort of fall with severe head injury the series that have been done and there have been several shows that it’s uncommon but they do occur.
Q. Now even though you suggested that you can’t put a figure or precise description on the degree of force required, you definitely in your opinion to violent and repeated shaking don’t you?
A. Well I think it has to be considerable the force to cause retinal haemorrhages.
Q. Do you disagree or agree that it can be caused by certain manner of turning with a child, for example?
A. Can you explain that a little bit more, elaborate a bit?
Q. Yes I think the description was turning with a child a particular way while the child’s being held?
A. I wouldn’t have thought so.”
Dr Kennedy was asked these further questions and gave these further answers (T 402-403):
“Q. Doctor do you agree that if a head of a child was unsupported whilst the child was being held such that during the course of a fall in the arms of the carer, that is the carer falling, the head was allowed to move on its axis on the neck because it was unsupported, that would add a rotational component to the fall if the child’s head then came to hit a hard surface on the ground?
A. I can’t see how you can quantitate that clinically from my point of view, I can’t really give a comment on that I’m afraid. I wouldn’t have thought that in the normal course of events that sort of thing would give sufficient – we see retinal haemorrhages uncommonly and we examine lots of children and very rarely do we see retinal haemorrhages in children and I would have thought if something like that was the cause we’d be seeing a lot more than we do.
Q. If a child though was being held by someone so the child wasn’t falling from its own weight, from its own legs but rather was being held by someone and so if the child was held around its body but its neck was then in movement or in motion in a backwards and forwards manner perhaps while the person went to the ground that could add a rotational element to the fall though, couldn’t it?
A. It may add a rotational element to the fall but I can’t see it be a great amount of rotational element. I mean flexing of the neck I don’t think would be enough to shake the vitreous jelly which is what causes the haemorrhages, it’s the shaking of the vitreous jelly. It would take quite a lot of force to shake the vitreous jelly.
Q. If the fall commenced though by virtue of the person who was carrying the child tripping, that is, not just falling over or falling to the ground but actually tripping on something, that would add some velocity or some force to the fall wouldn’t it?
A. Yes.
Q. And perhaps to the suddenness with which the child’s head might move on the neck during the course of the fall?
A. Yes.
Q. And in those circumstances I suggest to you if a child were to make contact with a hard floor --
A. Yes.
Q. –after going to the ground in those circumstances, that is they’re moving forwards and downwards from the carer --
A. Yes, yes I understand what you mean.
Q. –but at the same time their head is moving because it’s unsupported, that could result in retinal haemorrhages I suggest of the kind that you’ve observed here?
A. Well I mean you can get retinal haemorrhages from falls and undoubtedly but the incidents as I’ve pointed out is in accidental falls and injuries, motor vehicle accidents is low, it’s generally reported to around three per cent.”
The delay in the appellant’s account of a fall

The appellant gave evidence of her fall whilst carrying Alexandra, and said that after this Alexandra collapsed in her arms. However, it was common ground that the first time the appellant told anybody of that fall was on 6 March 2002. According to the appellant’s daughter and her son-in-law, the appellant told them about falling with the child in her arms on 6 March 2002, which was after the appellant had been charged on 28 February 2002. The appellant’s explanation for not having spoken about the fall earlier was “because I’d shut down” (T 448).
There had been earlier opportunities to mention that fall when the appellant gave a different account of events:
(i)the first opportunity was the 000 call made by the appellant when, according to Mrs Jeffries, the operator at the 000 centre, the appellant reported: “She’s gone funny, she had a bad bump on her head yesterday” (T 182);
(ii)Mr Whelan gave evidence of the phone call he received from the appellant in which the appellant said she had called an ambulance “because Ally had gone funny” (T 106);
(iii)Constable and Mrs Lalor were the Whelans’ neighbours. Constable Lalor attended the Whelan’s residence at 4.00 pm on 1 February 2002 where he spoke to the appellant. He took notes of what the appellant said and recorded “Just after 2.00 pm child bumped forehead causing bruises…heard cry and went to child. Picked up. Started gulping for air.”
(iv)Mrs Lalor also went in to the Whelan’s place about 4.00 pm that same day. The appellant told her that the previous day a dog had knocked Alexandra over and she mentioned other accidents that Alexandra had had, but there was no mention of a fall whilst the appellant was carrying Alexandra (T 185);
(v)Dr Hardacre gave evidence that he spoke to the appellant at 5.00 pm on 1 February 2002 in relation to the child’s admission, and was seeking to find out what had happened to the child. The appellant had not seen what had happened, according to Dr Hardacre’s recollection of what he was told, but the appellant
“wondered if Alexandra had pulled a stool over on top of herself, although she stated clearly that she had not seen this happen and had not heard any noise to suggest a stool had been pulled over…she told me that at some time after two o’clock Alexandra let out a cry and seemed distress. [The appellant] said that she picked Alexandra up and while holding her in her arms Alexandra became limp and lifeless. She called the emergency number immediately to summon the ambulance…” (T 416)
(vi)Detective Walkom attended upon the appellant on 1 February 2002 and the appellant accompanied the police officer to the police station where she was interviewed. There was no account of the fall about which the appellant gave evidence at the trial. An ERISP was conducted shortly after midnight in which the appellant said the child had been knocked down by the dog the day before but in answer to Q 70 the appellant said:
“And she seemed all right when Leon left. She was happy and playing and sitting on my lap. And then I just put her down and I went inside, I went back into the kitchen, and I was starting to get their tea ready. And they were playing over a highchair, the three of them, pushing Zara, ‘cause all fighting and going on. And then I heard Alexandra cry and I came out and the chair was tipped over and she was sort of sitting up rocking on the floor. And I picked her up and she seemed all right and then she just went all funny and just went all limp and funny in my arms. And I panicked and I rang the ambulance and then I rang Leon.”
The grounds of appeal
Three grounds were expressed and addressed:
(1)The Crown Prosecutor’s address gave rise to a miscarriage of justice;
(2)the trial judge’s directions concerning lies were erroneous and gave rise to a miscarriage of justice;
(3)the verdict of guilty constituted a miscarriage of justice in that the jury ought, in all the circumstances, to have entertained a reasonable doubt.
Grounds 1 and 2
It is convenient to deal with grounds (1) and (2) together, that being the course adopted in the submissions of counsel.
Clearly, the appellant’s credibility was challenged by the Crown and, indeed, the appellant was vigorously cross examined, as is illustrated by the following passages of evidence:
Referring to the appellant’s evidence of her fall carrying Alexandra (T 482):
“Q. I suggest you’re making this up Mrs Campbell, what do you say about that?
A. I’m sorry, I’m not making anything up, no.
Q. You’ve made up this entire story about Alexandra falling out of your arms because you know how she in fact did receive her injuries that afternoon, what do you say about that?
A. I know exactly how she got the injuries, yes.”
And, later (at T 487) referring to the visit by Mrs Lalor:
“Q. You must have been feeling a bit shaken from the fall?
A. I was shaky, yes.
Q. Why didn’t you tell her about that fall?
A. I don’t know, I didn’t tell anyone.
Q. That’s because it didn’t happen, did it?
A. It did happen, yes, it did happen.
Q. And you didn’t tell her about your injuries because you didn’t have any, did you?
A. Yes, I did.”
After being cross examined about what she told Dr Hardacre (T 495):
“Q. Mrs Campbell, see I suggest you’re lying?
A. Well that’s your opinion.
Q. And I am suggesting that you’re lying about what happened to Alexandra--
A. No, I’m not lying, no.
Q. Because if you had had this fall you would have told Dr Hardacre at 5 o’clock on 1 February 2002 about it?
A. No, I wouldn’t. I wouldn’t have told anyone but Leon. He was the one I wanted to tell.”
And then at T 496:
“Q. See, I suggest that you’re just making this up now, Mrs Campbell?
A. No, I’m not, no.
Q. You’re making it up because you didn’t tell Dr Hardacre the truth and you haven’t told the truth in this courtroom?
A. Yes, I have.
Q. What do you say about that? You see because if you had fallen with Alexandra in the way you have told us that was such a crucial piece of information for Dr Hardacre that you would have told him if it had happened?
A. It did happen and I didn’t tell him. I didn’t tell anyone.
Q. You didn’t tell him because it didn’t happen?
A. I didn’t tell anyone.
Q. See, what did happen was that you shook Alexandra?
A. No. No, no.
Q. You shook her violently?
A. No.
Q. And she went unconscious?
A. No.”
When cross examined on the account given to the police in the ERISP (T 516-517):
“Q. Question, answer 433 on page 47, that she’s asking you, ‘One of those modern high chairs that is? A. Yes. Q. On castor type wheels? A. Yes and then I heard Ally cry and I just walked to the door and had a look out and she was. The chair was tipped over because they were making a hell of a racket. Q. They were all fighting over the chair. A. Yes and I looked and Ally was sort of like that on the floor, sort of hunched over. When you say’ – question 435 – ‘Q. When you say like that on the floor, can you describe it for me in word pictures? A. Like as if she was sitting and sort of like that. Q. So she’s with her head actually on the floor? A. Yes, I think it would have been because she was over and I said, “Oh, what happened darling?” and she looked at me and I picked her up and she seemed all right for a few seconds and then she went funny’?
A. Yes.
Q. That didn’t happen at all, did it?
A. No, that was--
Q. That’s a lie, isn’t it?
A. Yes, that was wrong, yes.
Q. It’s a lie, isn’t it?
A. I don’t know about a lie but that – I couldn’t really say what happened because I wanted to tell Leon.
Q. You couldn’t tell what happened to the police because you knew you’d been cautioned and if you told the truth you would be in caution, Mrs Campbell. What do you say about that?
A. I say no, that’s wrong.”
The transcript records that on 29 April 2004, before the evidence had concluded but in the absence of the jury, his Honour indicated the matters that would be dealt with in his summing up, and said this about lies (T 625):
“I also would have to give a direction I think about the use that could be made by a jury of lies. I would like both counsel to think about it. I’m certainly not going to give a direction that lies can be taken into account as an indication that the person has a guilty mind.”
To that, the transcript records the Crown Prosecutor responded: “I don’t ask for that, your Honour.” However, the judge went on to indicate that whether the appellant had told lies was something that affected her credibility and he indicated that he thought he had to tell the jury that.
Counsel for the appellant then referred to Zoneff v The Queen (2000) 200 CLR 234 and, whilst this was not formalised, counsel appears to have been raising with the trial judge the possibility of a direction that proof of a lie was not to be treated as evidence of guilt (T 626). However, later, (T 681) counsel for the appellant specifically drew the attention of the trial judge to the direction proposed in Zoneff to which I will return shortly. At T 682 it is recorded that the judge, addressing the Crown, again conveyed he would not be directing the jury that lies could be treated as indicative of guilt.
However, when the Crown Prosecutor subsequently addressed the jury, this submission was put (T 20, 3 May 2004):
“So, members of the jury, here she gives, you might think, a very detailed, long account of what happened to Alexandra when she was involved with the high chair. When I put it to her in cross-examination she told me that it was a lie. She admitted that this was a lie. The whole high-chair story is a lie. It was a lie made up on the run to cover up for her own actions, her own shaking of Alexandra, but it wasn’t a very well-thought-out lie – she’d only had a brief bit of time.
We’ve already got the dog and the triple 0 call. We hadn’t got the high-chair story formulated at that stage. So we start off with the dog and the triple 0 call; nothing to the ambulance officer. Maybe she is not able to speak at that stage because she’s in some kind of shock. Anyone presented with a child who’s gone unconscious in their arms might be shocked. That’s where your commonsense comes into it again…”
And, then (T 21, 3 May 2004):
“What do you make of this chronology that I’ve spent the last half an hour putting forward to you? Not much, I would suggest, except that it is the desperate efforts of a woman trying to cobble together a story to fit in with what she knows about Alexandra Whelan’s injuries.
Accounts don’t even match, but you all know that old adage, ‘what a tangled web we weave.’ What a tangled web Mrs Campbell, the accused, has weaved: stories that don’t match up; the dog gets a guernsey; the high chair gets a go; Merissa; mum’s in the bath; even the child herself is being accused of being ‘a clumsy little thing’. Why is all of these people – the blame being apportioned to everybody else?
You might think it’s because the accused cannot accept that she herself has caused these grave, grave injuries to Alexandra Whelan, and for one month and five days this account stood firm, this account of some external cause causing the injuries to Alexandra – ‘nothing to do with me’, one month and five days from 1 February until 6 March, the postulation that everybody else was somehow involved except the accused.”
(Emphasis added)
It is submitted that what the Crown Prosecutor did amounted to inviting the jury to treat lies as evidencing a consciousness of guilt. It seems to me, particularly having regard to the above passages to which emphasis has been given, that there is substance in that submission. Indeed, the Crown has here fairly acknowledged that this was the effect of what had been put to the jury.
Whilst the judge had, in the earlier discussion, indicated he did not intend to direct the jury that the jury could take any lie it found had been told as evidencing a consciousness of guilt, the jury was not given a direction in the summing up that it would not be permissible for the jury to so regard any lie told. It seems to me that this was an omission from the summing up which assumed a great deal of importance because of the content of the final address by the Crown Prosecutor.
It is necessary to look closely at the content of the directions given by the trial judge as to lies. His Honour sought to identify the lies in this passage of the summing up (SU 22):
"Now the Crown allegation is that when she told Dr Hardacre what happened she was lying. When she told Mr Lalor what happened she was lying and when she told the police that night what happened she was lying. The Crown case is that her story that she was frozen in fear or shut down or the like is false and that she consciously was telling lies.
The Crown has also put to you and indeed they put to her when she was in the witness box that what she said in the witness box was about what occurred were lies. She told you in the witness box that what she told you about the events was true, but some of the things that she told the police may have been lies and the Crown mentioned various matters in her address that were false that Mrs Campbell told the police.”
His Honour then reviewed the submissions of counsel (SU 22-23):
“The Crown says look she told the police untruths. She knew they were untruths. She is someone who lacks credibility. Now it is her credibility that is one of the issues here obviously enough. She has put forward a version which is a possible version. If she is not telling the truth it is not a possible version at all. If you were satisfied beyond reasonable doubt that she was telling lies then members of the jury you would be entitled to consider whether there was any basis for a fall occurring as she claimed.
Now the fact that she tells lies about something outside the Court, even something connected with this matter does not mean that she does not tell the truth when she comes to Court. It is a matter that you have got to weigh up and people have many reasons for telling lies and I think all of us that have been around for a while know that. Sometimes it is panic, sometimes it is fear, shock, and people say things that are not true and I think every person here would know of some clear example occurring in their own life where they have experienced that. Someone has told them something that is not true. And not because they are normally liars but because the instant reaction is to say something that is not so.
The mere fact that she said something that was not so at the time of the event or close to it when she spoke with I think firstly Mr Lalor. He was really the first person that she said anything of any consequence to and then later Dr Hardacre and later the police. You have got to weigh up why she would do that, why she would tell them what was not true.
Her counsel has put to you that she committed herself to something and once you get into that situation it is sometimes difficult to move away from it. She has committed herself to a story and then she did not know quite what to do.”
His Honour then proceeded to give the following instruction (SU 23-25):
“That is something you have got to look at very carefully, because in this Court she has given you a version of events. That version of events raises a possibility of the injuries having been caused otherwise than as the Crown claims. If what she told you in the witness box was untrue then it would follow that there is no version on her part that would explain anything, if what she said was untrue. As to whether there was a fall or not depends entirely on her evidence. There is nothing to substantiate it.
The Crown has put to her that if she fell so heavily she could have be expected to be sore and bruised. Yet she said nothing to any doctor about being sore or bruised. She made no complaint to anybody else about being sore or bruised. So the Crown says well you could not believe that.
Well you have got to think about that members of the jury. I want to make this perfectly clear, you can be satisfied that she told lies outside the Court, that she painted a deliberately incomplete or false picture and yet you can still accept that she told the truth in Court. If you are able to do that, but of course when you come to considering her vision you would want to consider everything that she has said.
Now, if after considering everything, you are still left in the situation where she has given a possible explanation in your opinion, then the Crown has not proved its case. If having heard everything and the cross-examination of the Crown and everything the Crown put and you are satisfied that what she said in the witness box is not true then you are left in the situation where there is no explanation by her. You have still got to consider whether you are satisfied, that apart from that the Crown has proved its case beyond a reasonable doubt.
As I said to you before she does not have to prove anything. If she had said nothing at all and she had advanced no explanation at all and indeed had not asked one question through her counsel you would still have to consider whether the Crown has proved its case beyond reasonable doubt.”
Later the jury was given this further instruction (SU 33-34):
“I have said to you that the Crown case is a circumstantial one and the Crown’s submission circumstances point inevitably to guilt and in the Crown case it is because medical evidence establishes that there has to be a forceful rotational movement of the neck accompanied by a blow, even though a light one for these injuries to occur and the Crown says the early explanations given by the accused do not explain how that could have occurred. The only explanation is that she shook the baby and struck her head.
Mrs Campbell has put forward a possible explanation. If you consider that this is a possible explanation then you should find her not guilty. If you consider that is not a possible explanation at all you still have to consider the whole of the other evidence. You still have to be satisfied beyond a reasonable doubt that the Crown has proved its case. She does not have to prove anything. The Crown has to prove that she has not put forward a possible explanation. If you are not satisfied she has put forward a possible explanation you still have to consider all of the other evidence, the evidence of all the witnesses the Crown called and you can only convict if you are satisfied beyond reasonable doubt that the Crown has proved its case to the satisfaction of all of you.”
In my opinion, the directions given to the jury did not adequately instruct the jury having regard to the content of the Crown Prosecutor’s address.
It appears that the jury was given written instructions as well as the oral instructions to which I have been referring. However, those written instructions do not add relevantly to the instructions set out above, and I do not propose to record them here. They contained no direction to the effect that the jury should not use a lie as evidence of guilt.
In the circumstances, it seems to me that it was necessary for the trial judge to instruct the jury in the clearest of terms that it ought not to treat any lie found to have been told by the appellant as affording evidence of guilt of the offence charged.
Wood CJ at CL recently had occasion to observe in R v Ray (2003) 57 NSWLR 616 at 632:
“It is clear from a long line of authority, for example, R v Sutton (1986) 5 NSWLR 697, R v Heyde (1990) 20 NSWLR 234, Edwards v The Queen [(1993) 178 CLR 193] and Zoneff v The Queen, that the topic of lies is one that must be approached with considerable care.”
In their joint judgment in Zoneff, Gleeson CJ, Gaudron, Gummow and Callinan JJ expressed a direction on lies suitable to that case:
“[23] A direction which might have appropriately been given and which would have allayed any concerns which the trial judge may have had, in this unusual case, in which the issues may not have been defined as they might have been had the prosecutor made a speech to the jury, is one in these terms:
‘You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.’
[24] A direction in such terms may well be adaptable to other cases in which there is a risk of a misunderstanding about the significance of possible lies even though the prosecution has not suggested that the accused told certain lies because he or she knew the truth would implicate him or her in the commission of the offence.”

After the trial judge in the present case had indicated that he did not propose to direct the jury that lies could be taken into account as indicating the appellant had a guilty mind, the Crown did not ask the judge to reconsider the position. Nor did counsel for the appellant ask for an Edwards-style direction at the trial. Nor does the appellant’s counsel submit in this Court that such a direction should have been given. Before such a direction could have been given, it would, of course, have been necessary to clearly define to which lies any such direction was intended to relate. However, whilst no complaint is raised as to the absence of an Edwards direction, I consider a direction such as was proposed in Zoneff was required because of the content of the Crown Prosecutor’s address.
The failure to give an explicit warning that any lie found to have been told could not be used as evidence of a consciousness of guilt left open the risk that the jury might go astray by so treating it.
Hence I accept the submission that the failure to instruct the jury against the impermissible use of any lie found caused the trial to miscarry. The trial judge was not asked to give further instruction to the jury after the completion of the summing up, so strictly speaking r 4 of the Criminal Appeal Rules applies. However, the judge had been asked to give the jury instruction consistent with Zoneff before the addresses began. Moreover, I consider the need for the direction was of fundamental importance. I would therefore grant leave to the appellant to rely upon ground 2 of the grounds of appeal.
For the above reasons, I have concluded that this appeal should be allowed. I propose, nevertheless, to deal shortly with the third ground of appeal because of its possible bearing upon the orders which ought to be made.
Ground 3
The principles relevant to the consideration of this ground were outlined in M v The Queen (1994) 181 CLR 487 in the judgment of Mason CJ and Deane, Dawson and Toohey JJ, and also in MFA v The Queen (2002-2003) 213 CLR 606 paras 45-61.
It was open to the jury to reject the appellant’s evidence that she fell whilst carrying the baby. Not only had she failed to mention the fall on any of the occasions considered in para 28 above, but the appellant saw her local doctor, Dr Petersen, on 11 February 2002 and she acknowledged in cross examination that on that day she made no mention to him about injuring her ribs, her back or her elbow in a fall eleven days before, although her evidence was that she had injured herself in those areas in the fall (T 541-544). When the appellant consulted her doctor on 11 February 2002, Dr Petersen’s notes record it was for dermatitis only. Indeed, on that date the appellant did not even mention the fall to Dr Petersen (T 544).
It was submitted on the appellant’s behalf that Dr Moran and Dr Kennedy made concessions that opened up the possibility that the child may have sustained her injuries other than in the manner for which the Crown contended. However, if the jury rejected the appellant’s evidence about the fall, then, weighing the whole of the evidence which Dr Moran and Dr Kennedy gave, their evidence afforded a sound basis for a finding by the jury that the child’s injuries were caused by the appellant.
Hence, but for the absence of a Zoneff-style direction, I would have been minded to propose that this appeal be dismissed.
Should a new trial be ordered?
It has been submitted that the appellant, who is now sixty-five years of age, has served much of the non parole period of her sentence, and that in all the circumstances in which the trial miscarried a new trial should not be ordered.
The head sentence imposed was one of four years six months and the sentence reflects the gravity of the offence charged. Having regard to all the evidence adduced at the trial, I consider that a new trial should be ordered.
The formal orders I propose, therefore, are as follows:
1.That the appeal be allowed and that the appellant’s conviction and sentence be quashed;
2. That a new trial be ordered.
GREG JAMES J: I agree with Studdert J.

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LAST UPDATED: 13/04/2005