R v Coad - [2009] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COAD
Criminal Trial by Judge Alone
[2009] SADC 21
Reasons for the Verdict of Her Honour Judge Shaw
6 March 2009
CRIMINAL LAW
Trial by Judge alone - Accused charged with aggravated recklessly causing serious harm pursuant to section 23(3) of the Criminal Law Consolidation Act 1935 as amended - Verdict - Not Guilty.
Criminal Law Consolidation Act 1935 s21; s23(3), referred to.

R v COAD
[2009] SADC 21
Introduction

The accused, Richard Lionel Coad pleaded not guilty to the charge of aggravated recklessly causing serious harm, but guilty to the alternative charge of aggravated recklessly causing harm.
The particulars of the offence are that on 3 January 2008 at Elizabeth Grove, the accused caused serious harm to Jaxson Coad, being reckless as to whether such harm was caused. It was further alleged that the circumstances of aggravation were that the accused committed the offence knowing that Jaxson Coad was a child of whom he was the parent.
The accused elected to be tried by a judge sitting without a jury pursuant to s7 of the Juries Act 1927. The trial proceeded before me. I received a number of declarations and two records of interview with the accused. In addition, Dr Terry Donald of the Women’s and Children’s Hospital was called by the prosecution. The accused elected not to give or call any evidence. I now deliver my verdict and publish my reasons.
Prosecution Case
It is not disputed that on 3 January 2008, the accused was caring for his son Jaxson who was born on 16 October 2007.
The prosecution alleged, and it is not disputed by the accused in his second record of interview, that the child Jaxson was crying. The accused shook Jaxson from side to side causing Jaxson to suffer a seizure.
The accused and his wife conveyed Jaxson to the Lyell McEwin Hospital, where he was admitted at 10.26pm. At about 2.00am, on 4 January 2008, Jaxson was transferred to the Adelaide Women’s and Children’s Hospital. The child had suffered intracranial haemorrhaging and required emergency seizure treatment.
The accused was interviewed on 9 and 22 January 2008. During the latter interview, the accused admitted shaking Jaxson from side to side. Dr Donald explained in his evidence and in his tendered statements, that when Jaxson was admitted to the Lyell McEwen Hospital, symptoms consistent with a seizure were observed. The child had suffered significant metabolic acidosis indicating that there was a negative impact from the seizure upon the child’s body and the biochemistry of his brain. A CT scan of the child’s head revealed evidence of recent bilateral subdural haemorrhages.
The prosecution case was that the child suffered a seizure that resulted in a condition that endangered the child’s life. In particular, the prosecution case was that had the child not received medical treatment when he did, there may have been a continuing seizure resulting in hypoxic damage to the brain tissue and possibly death.
Issues
Counsel are agreed that the only elements of the offence which are in dispute are, firstly, whether serious harm was caused, and secondly, whether the accused was reckless in causing serious harm[1].
[1] S23(3) Criminal Law ConsolidationAct 1935
Serious harm is defined as:[2]
(a) harm that endangers a person’s life, or
(b)harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or
(c) harm that consists of, or results in, serious disfigurement.
[2] s21 of the Criminal Law Consolidation Act 1935
In relation to the mental element, the prosecution must prove that the accused foresaw the risk that serious harm was a possible result of his application of force to the child and decided to apply the force or continue with the application of the force, regardless of that risk.
Prosecution Address
‘Serious Harm’
The prosecution submitted that the evidence established that the accused had caused his son “serious harm” as defined.
Dr Donald expressed the opinion[3] that on arrival at the Lyell McEwen Hospital, the child was suffering a prolonged seizure that had continued for about one hour. In addition, the child was observed to have an altered state of consciousness, he was experiencing difficulty obtaining oxygen, he had twitching of the limbs, he was suffering from metabolic acidoses, his body tissue was becoming hypoxic and he had suffered brain haemorrhages.
[3] Having regard to hospital notes
Dr Donald expressed the view that absent medical intervention, there were three possible outcomes. Firstly, the seizure may have stopped; secondly, it may have stopped and started again; or thirdly, the seizure may have continued and resulted in serious brain hypoxia which could cause death within hours. In his view, the first possibility was unlikely.
It was the prosecution case that although it was not possible to say whether any brain damage occurred, the consequence of the head injury was life threatening because there was enough disturbance to the brain cells to cause a seizure. Therefore, it was submitted, the accused caused Jaxson harm which endangered his life. But for the medical treatment, there was a significant risk that the consequences could have been fatal. Therefore, the harm caused should be regarded as having endangered Jaxson’s life and amounted to ‘serious harm’.
‘Recklessly Causing Harm’
The prosecution acknowledged that it was required to prove that at the time the accused shook Jaxson, he was aware of the risk that his conduct could result in serious harm to the child and that he engaged in that conduct knowing of that risk and without justification. The accused did not suggest there was any justification for his actions.
The prosecution submitted that the evidence proved that the accused was aware at the time of shaking Jaxson, that, as a result of his actions, there was a substantial risk that Jaxson’s life could be endangered, or that serious and protracted impairment of a physical or mental function could result. The prosecution submitted that the harm caused amounted to serious harm because it endangered Jaxson’s life. However, if the accused was found to be reckless in respect of either of the three limbs in the definition of “serious harm”, then reckless intent would be proven.
The prosecution submitted that the inference of reckless intent could be drawn beyond reasonable doubt from a number of circumstances. The prosecution relied upon the fact that the accused was aware that his son was a ten-week old child and therefore was frail and vulnerable. The accused had a two year old daughter at the time. Therefore, he had previous experience caring for young children, namely his own children, whilst his wife was at work.
The prosecution pointed to the answers of the accused on 22 January 2008 during his second record of interview with the police. The accused admitted that he shook the child because the child was crying and would not settle. The prosecution submitted that the accused was angry and frustrated at the time. The prosecution submitted that the court was entitled to infer that the accused must have considered the possibility that his actions might cause a serious head injury to a young child.
The prosecution pointed to the fact that in his first record of interview, the accused did not admit that he had shaken the child. During his second interview, the accused referred to the pressure of work. He explained that “something made me mad” and he admitted that he had become frustrated when Jaxson would not settle and was crying.
He explained that he “must just have mentally blacked out how bad what I just done” and “I probably must have just shaken the life out of him and that stirred things up”.
The prosecution submitted that the combination of circumstances established that, in a brief display of anger and frustration, the accused must have realized the possibility that shaking Jaxson, a ten-week old child, could cause serious harm, and nevertheless proceeded to shake the child.
Defence Address
The defence submitted that the accused’s answers in the second record of interview must be considered in the light of the fact that at the time of that interview, the accused had received information about the full extent of the consequences of his actions from the medical staff.
The accused admitted to police that he had attempted to block out the detail of the events. It was submitted that when the accused said that he must have “just shaken the life out of him and stirred things up”, he was reconstructing in order to explain the circumstances in which milk might have come from the child’s nose.
The defence submitted that Dr Donald’s evidence about the level of force applied to cause the seizure and brain injury, was quite equivocal. Dr Donald said that the most he could say about the level of force applied to cause a seizure of this kind, was that it did not happen in the normal course of parent/baby handling. Therefore, the defence submitted, the court could not be satisfied that there was a degree of excessive force used in this case, from which it might be inferred that the accused had the mental element necessary to prove “recklessly causing serious harm”.
Findings
I have regard to the oral and written submissions of counsel. I have regard to the declarations, the evidence of Dr Donald and the material in the accused’s two records of interview.
I must determine whether, having regard to that evidence and material, I am entitled to draw the inference beyond reasonable doubt that the accused shook the child having foreseen the possibility of causing serious harm to the child by that action.
I find that the prosecution have not excluded the rational hypothesis that at the time that the accused shook the child, and in the circumstances as they existed at the time, the accused did not foresee the possibility that his actions might cause serious harm to the child.
Indeed, I am satisfied that at the time that the accused shook the child, he did not foresee the possibility that his action might cause serious harm to the child.
Therefore, I am not satisfied that this element of the charge has been proven beyond reasonable doubt.
In view of this conclusion, it is unnecessary for me to make a finding in relation to any other element of the offence.
I find the accused not guilty of the offence of aggravated recklessly causing serious harm.