R v Court - [2003] WASCA 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- COURT [2003] WASCA 308

CORAM: MILLER J
MCKECHNIE J
WALLWORK AJ

HEARD: 19 NOVEMBER 2003

DELIVERED : 10 DECEMBER 2003

FILE NO/S: CCA 90 of 2003

BETWEEN: THE QUEEN
Applicant
AND
CRAIG DOUGLAS COURT
Respondent

Catchwords:

Criminal law - Prosecution appeal - Appeal from acquittal at trial before Judge alone - Indictment for murder - Acceptance by trial Judge that evidence of a medical witness created a reasonable doubt - Whether medical witness qualified to express opinion - Whether on all of the evidence the trial Judge ought to have held a reasonable doubt - Prosecution appeal - Basis of determination of such appeal

Legislation:

Criminal Code

Criminal Practice Rules

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr J K Tavener & Ms L Gaskell
Respondent: Ms J A Fordham

Solicitors:

Applicant: State Director of Public Prosecutions
Respondent: Andree Horrigan

Case(s) referred to in judgment(s):

Anderson v The Queen (2000) 1 VR 1
Bratt v Western Airlines (1946) 166 ALR 1061
Carter v The Queen (1994) 12 WAR 310
Casley‑Smith v F S Evans & Sons Pty Ltd and Anor (No 1) (1988) 49 SASR 314
Clarke v Ryan (1960) 103 CLR 486
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
R v ADW (2002) A Crim R 532
R v Kurtic (1996) 85 A Crim R 57
R v Margaria & Anor [2003] WASCA 253
R v Mickelberg (1996) 90 A Crim R 126
R v Middleton (2000) 114 A Crim R 258
R v Sodo (1975) 61 Cr App R 131
Velevski v The Queen (2002) 187 ALR 233

Case(s) also cited:

Bugg v Day (1949) 79 CLR 442
Davern v Messel (1984) 155 CLR 21
Hocking v Bell (1945) 71 CLR 430
Murphy v R (1989) 167 CLR 94
R v Anderson [2002] VSCA 16
R v Turner [2001] WASCA 344
R v Udechuku (No 5) [1982] WAR 21
Shepherd v R (1990) 170 CLR 573
Walton v R [1978] AC 788

MILLER & McKECHNIE JJ: The respondent was tried before Judge alone (s 651C, Criminal Code (WA)) in the Supreme Court at Perth between 19 and 29 May 2003 on an indictment which alleged that on 11 May 2001 at Perth he murdered Cameron Court. On 3 June 2003 the learned trial Judge found the respondent not guilty of the crime alleged or of the crime of manslaughter, and directed that a judgment of acquittal be entered.
On 23 June 2003 the appellant sought leave to appeal against the verdict of acquittal pursuant to the provisions of s 688(2)(ba) of the Criminal Code, contending that the learned trial Judge had made errors of law and/or errors which involve questions of mixed law and fact.

Grounds of appeal

Of the grounds of appeal filed by the appellant, three were abandoned, leaving the following grounds which were argued at the hearing:
"1.The learned trial judge erred in finding that Professor Hilton was qualified to testify in the field of neuropathology.
2.The learned trial judge erred in law in failing to give reasons as to why he found that Professor Hilton was qualified to testify in the field of neuropathology.
3.…
4.…
5....
6.The learned trial judge erred in law in failing to give himself an expert evidence direction which was required in this case given the conflict between the medical experts called by the Crown and Professor Hilton.
7.The learned trial judge erred in fact in finding that the evidence of Professor Hilton was able to give rise to a reasonable doubt, when that evidence, the account of the Respondent and any concessions made by the medical experts called by the Crown were not capable of giving rise to a reasonable doubt, as to whether the Respondent caused the death of the deceased by shaking, having regard to the whole of the evidence.
Particulars
(a)The learned trial judge found, on the Respondent's testimony, that it was likely the Respondent administered sharp blows to the back of the deceased in an attempt to dislodge whatever he thought was obstructing his son's breathing. The accused testified that he struck the deceased a number of times.
(b)Professor Hilton was unable to say what degree of force would be required to produce the neuropathological findings. Professor Hilton said the question was very difficult and the force applied was somewhere between trivial and so extreme as to have its corroborative findings in other part of the body.
(c)Dr Cooke's testimony was that the degree of force required to produce the observed symptoms was vigorous if not violent. Dr Fabian said that the degree of force required was repetitive, sustained motions of about 20 to 30 seconds and about 40 to 50 shakes. It was the evidence of Dr Fabian that the only possible mechanism to cause all the findings which she identified was shaking.
(d)No bruising was found on the deceased. Dr Silberstein's evidence was that if there had been blows to the back of the deceased with a view to shifting a throat obstruction, then such blows would likely be of such a force as to cause bruising.
(e)The learned trial judge found that the deceased did not have a pre‑existing coagulopathy.
8.The verdict of acquittal was unreasonable and not supported by the evidence.
Particulars
(a)The expert medical opinion was that the child had died from a brain injury due to trauma;
(b)The Respondent's explanation did not account for the constellation of injuries found on the deceased;
(c)The constellation of injuries found on the deceased was consistent only with the Baby‑Shaking Syndrome. The baby died as a result of being subjected to acceleration/deceleration forces combined with rotational effect."
In its notice of appeal, the appellant sought orders that the judgment of acquittal be set aside and there be a new trial on the indictment.

Reasons for judgment of the trial Judge

The learned trial Judge delivered the verdict of acquittal on 3 June 2003 and published reasons for that decision on 11 June 2003. They were extensive reasons in which the totality of the evidence at trial was summarised and reviewed. The ultimate conclusion reached by his Honour was that he was unable to be satisfied beyond reasonable doubt that the death of the deceased was caused by the accused shaking the deceased as alleged by the prosecution. His Honour added:
"The evidence, which I have reviewed extensively in these reasons, gave rise to considerable doubt as to whether shaking was the cause of the death of the deceased. It was not necessary to consider the intent of the accused further."
Central to the learned trial Judge's conclusion was an acceptance of the evidence of Professor John Hilton, Associate Professor of Pathology at the University of Sydney, and (as his Honour found) an eminent and highly qualified forensic pathologist with vast experience in the field of pathology. The conclusion of Professor Hilton, which was accepted by the learned trial Judge, is set out in his Honour's reasons at [187] ‑ [188] as follows:
"187Professor Hilton was specifically asked whether the only possible cause for the death of the deceased was prolonged and violent shaking and he said:
'I think that's not a - as a general proposition that is not tenable and I think it's highly suspect in any individual case unless there is a reliable witness.'
188As I understand Professor Hilton's evidence, he was suggesting that unless a witness had seen the deceased being shaken or unless there was some medical evidence consistent with the child having been shaken, such as bruising or other external injury, or acceptable admissions, then to conclude that the deceased had died by being shaken in a prolonged or violent way was, as he expressed it, 'highly suspect'."
To understand properly the importance of Professor Hilton's testimony and the learned trial Judge's acceptance of it, it is necessary to refer briefly to the prosecution case.

The prosecution and defence cases

The Crown alleged that on 8 May 2001 the respondent was at home with his baby son Cameron Court (born 29 July 2000) and a 3‑year‑old daughter. He was the only adult at home with the children on that day. During the course of the afternoon the respondent gave his son Cameron (to whom I shall refer as "the deceased") a bath, at which time he appeared normal. As to what then happened the Crown relied upon statements made by the respondent to investigating police. He said that after the child had been bathed he had dressed him and noticed that the child was unwell. He had difficulty breathing and then flopped. The respondent contacted the ambulance service at 2.40pm by use of the 000 line and shortly afterwards an ambulance arrived. Ambulance officers assessed the child and immediately took him to Swan District Hospital. There he was again assessed and moved to Princess Margaret Hospital.
Upon admission to Princess Margaret Hospital the deceased was found to be suffering a severe swelling of the brain. He did not recover and on 11 May 2001 the life support system which had been supporting him was removed, occasioning his death.
A post‑mortem examination was conducted on the deceased on 14 May 2001. The cause of death was identified as head injuries. The forensic pathologist who conducted the post‑mortem was Dr Clive Cooke. He found brain swelling and bleeding around the brain, subdural haemorrhage and congestion of the lungs. Microscopic examination of the brain later showed widespread axonal injury signifying severe brain injury. There was also evidence of a spinal injury. The Crown case was that post‑mortem findings in relation to the neck, spinal cord, brain and eyes of the deceased indicated that he had been shaken in such a vigorous manner as to cause his death. The Crown relied upon the evidence of a number of expert medical witnesses in support of this contention.
In summary form, the evidence of the medical witnesses called by the prosecution was that the deceased showed a constellation of features, most of which individually showed that the child had been shaken, but which together revealed that the manner in which the child died was a consequence of his being shaken in what is commonly termed the "shaken baby syndrome".
The prosecution case for murder was that the respondent had violently shaken the deceased with an intent to do him grievous bodily harm. In the alternative, it was put that a verdict of guilty of at least manslaughter was open on the basis that the respondent had shaken the deceased so vigorously (and dangerously) as to constitute criminal negligence (Criminal Code, s 266).
The defence case, as formulated at the conclusion of the Crown's opening before the learned trial Judge, was that the deceased had been unwell for some weeks prior to his death and had suffered a fit. The illness was said to be a possible explanation for the fit. The deceased stop breathing during the fit and the respondent attempted to revive him with the result that there may have been movement of the deceased's head in the course of his being shaken. It was conceded that some degree of trauma may have been resulted to the deceased during the course of resuscitation, but it was contended that this was a modest degree of trauma, which under no circumstances could be said to constitute an intent to do grievous bodily harm or criminal negligence.
In the course of his extensive reasons the learned trial Judge reviewed the testimony of the many witnesses called. For the purposes of these reasons it is necessary to refer only to the evidence of the more significant of those witnesses.

The medical evidence called by the Crown

The first important witness called by the prosecution was Dr Jonathon Silberstein, a consultant paediatric neurologist employed at Princess Margaret Hospital. He was an eminently qualified consultant paediatric neurologist who had a Bachelor of Medicine, Bachelor of Surgery and Fellowship of the Royal Australasian College of the Physicians specialising in neurology. He had been in practice as a consultant paediatric neurologist since 1995.
Dr Silberstein saw the deceased in the intensive care unit at Princess Margaret Hospital at about 5pm on 10 May. He reviewed an EEG and cranial CT scans and took a history from the respondent and his wife, and from a colleague, Dr Knight. He examined the deceased and noticed in particular widespread bleeding behind the retina of the eyes. He noted on CT scans very severe swelling of the entire brain and bleeding between the brain and the skull, characteristic of subdural haemorrhage. He was of the opinion that the swelling of the brain was so severe that the brain was being displaced downwards out of the skull. He thus concluded that the lower centre of the brain was not functioning and that brain death had occurred.
Dr Silberstein's opinion was that his findings were highly characteristic of brain trauma where acceleration and deceleration injuries had occurred due to a baby being shaken. He found the cause of death to be swelling of the brain and very high pressure within the skull and concluded that the swelling and subdural haemorrhages and the retinal haemorrhages were characteristic of severe traumatic injury to the brain. He also concluded (and the learned trial Judge found this to be an important conclusion) that coagulopathy had occurred after the brain injury. Importantly, Dr Silberstein expressed the view that it was extremely unlikely that the injuries he saw on the deceased could have been produced by any normal attempts at resuscitation.
The learned trial Judge made reference to cross‑examination of Dr Silberstein in which he agreed that if the baby had been shaken violently enough, even without head impact, that could result in sufficient trauma to lead to the sequence of events evidenced in this case. The doctor expressed the view that it would require vigorous shaking with a rotational force, as opposed to a lineal force, to cause the injuries sustained by the deceased.
The learned trial Judge dealt with Dr Silberstein's opinion in relation to the use of force on the back of the child in a resuscitation attempt. His Honour said by way of introduction on the subject:
"68Dr Silbertstein was asked whether the use of force on the back of the child, the child having been placed on the accused's shoulder and struck for the purpose of seeking to dislodge some obstruction in his throat, would be sufficient to cause the injuries and he considered that it was difficult to imagine the amount of force that one could reasonably use to clear an airway producing the severity of the injuries, either the subdural or retinal injuries."
The learned trial Judge summarised the effect of Dr Silberstein's evidence as follows:
"71Dr Silberstein referred to the 'constellation' of features in this case being an indication that the deceased had been shaken. That constellation of features he referred to as being the subdural haemorrhage which was bilateral and particularly also involving the mid‑line, usually more posterior, associated with extensive retinal haemorrhages particularly as they involved multiple layers of the retinae and were associated with the severe swelling of the brain and with evidence of diffuse brain injury. Those were matters he said he personally observed. Dr Silberstein also said that if there had been blows to the back of the deceased with a view to shifting a throat obstruction, then such blows would likely be of such force as to cause bruising. There was no bruising in this case."
His Honour added the following conclusion at the end of this review of Dr Silberstein's testimony:
"71…I would add that, in my opinion, the absence of bruising, in view of all of the evidence, supports the view that the deceased did not have a pre‑existing coagulopathy and is also indicative of the degree of force that was used by the accused when the blows to the back between the shoulder blades were struck."
The second important Crown witness was Dr Malcolm Burvill, a specialist ophthalmologist, who examined the eyes of the deceased with an ophthalmoscope. He found widespread haemorrhages over the retina, within the retina, underneath the retina and in the sub‑retinal layers. The condition of the retina of each eye was considered by Dr Burvill to be a classic indicator of shaking‑type injuries. He regarded the injuries in this case as being the most severe he had ever seen.
However, the learned trial Judge placed reliance upon Dr Burvill's testimony in cross‑examination, in which he agreed that cardio‑pulmonary resuscitation on a baby by a lay person in a home setting might produce retinal haemorrhaging - with the stronger the compression the more likely there would be retinal haemorrhage. He conceded that the eye injuries were such that he could not definitely say that they were related to shaking and he harboured more doubt at the time of trial than he had when originally reporting in the matter about the question whether the injuries to the deceased were accidentally or non‑accidentally caused.
The third important medical witness called by the prosecution was Dr Clive Cooke, chief forensic pathologist for Western Australia. He gave evidence that he was chief forensic pathologist for the State and also director of forensic services at the Path Centre at Sir Charles Gairdner Hospital. He had been a forensic pathologist since 1986. The learned trial Judge described him as a "highly qualified and schooled forensic pathologist of many years' experience".
Dr Cooke found on post‑mortem examination of the deceased that the dura or membrane covering the brain was quite swollen and tense. There was bleeding beneath the dura between the membrane and surface of the brain, subdural haemorrhage on both sides of the brain and brain swelling. There was, however, no evidence of bruising anywhere on the deceased's body, nor obvious bruising beneath the skin. The learned trial Judge placed some importance upon the fact that Dr Cooke concluded that if the child had been shaken by being held by the arms and shaken, there may have been fingertip bruising, but there was no such bruising.
Dr Cooke found haemorrhage along the spinal cord, but was unable to say whether that bleeding was a continuity of the subdural haemorrhage or caused by a different type of impact. In the end he concluded that the primary cause of death was head injury. He referred the brain to a specialist neuropathologist, Dr Vivian Fabian, for microscopic examination. Upon consideration of Dr Fabian's report, Dr Cooke concluded that the constellation of findings were consistent only with the deceased's brain being shaken in a violent manner. Extracts from Dr Cooke's testimony to this effect are as follows:
"The broad issue I think here is if you have all of these features what is the underlying theme, and the underlying theme is that they are linked by a simple causation and that is shaking.
Would it be more accurate to say they may be linked by a single causation and one should then proceed to exclude differential diagnoses? Would that be more accurate?‑‑‑If you're dissecting that sentence, what they are saying, I think and implying is that if you have all of the features then there is only one condition that links them all together. Certainly if you examine each individual one as an individual feature then there may be other explanations to be considered but when you have them all as a constellation then it's a syndrome and the syndrome is the shaken baby syndrome.
All right, and a syndrome is simply a name for a constellation of features, therefore you are, with respect, stating the obvious, are you not? You say that shaken baby syndrome is this constellation of features, therefore if you've got it then you've got shaken baby syndrome. It is very circular, isn't it, if not stating the obvious?---No, I don't think it is. I think what it's saying is that if you have a constellation of features there is a syndrome and the mechanism of causation of that constellation of features is shaking. If you consider each of them individually there may be other explanations for individual features but as a syndrome, a constellation of features, then there is only one mechanism."

The learned trial Judge noted that Dr Cooke expressed the view that the degree of force required to produce the symptoms he found was "vigorous, if not violent", but that Dr Cooke accepted that "there were dissenting voices in recent times" in medical literature in relation to the question of the degree of force required to constitute the "shaken baby syndrome". The learned trial Judge summarised his evidence as being to the effect that "the usual understanding was that the force required was vigorous, if not violent shaking, and … some studies suggested that impact was necessary".
Perhaps the most important witness called by the Crown was Dr Vivian Fabian. She was the consultant neuropathologist at Royal Perth Hospital, a position she had held since 1993. Her qualifications included Bachelor of Medicine and Surgery (1983), Diploma of Tropical Medicine and Hygiene (1986), Fellow of the Faculty of Pathology of the South African College of Medicine and Fellow of the Royal College of Pathologists of Australian in Neuropathology. She also held the position of Associate Neuropathologist at Princess Margaret Hospital.
Dr Fabian explained what neuropathology was and made reference to the various specimens from the deceased that she had examined:
"… Neuro means that it's to do with the nervous system, so what we do is we study the brain, the spinal cord and muscles and any diseases or anything to do with that.
In relation to Cameron Court, the subject of this trial, what involvement did you have with that child?---The forensic pathologist sent me specimens to examine. I was sent the brain, I was sent both the eyes, because the eyes are an extension of the brain so they fall under neuropathology. I was also sent the neck, which is the vertebral column, which is the spine, with the spinal cord inside it."
The learned trial Judge described Dr Fabian as "a very intelligent, highly qualified and skilled neuropathologist". He noted that she diagnosed diffuse axonal injury in the brain which, in her opinion, was consistent with traumatic causation. Her opinion was that for such finding to be made there must have been acceleration and deceleration of the brain. His Honour noted that Dr Fabian's opinion was that retinal haemorrhages were uniquely caused by traction injury and could not be explained by cardiopulmonary resuscitation. His Honour then summarised an important conclusion of Dr Fabian the transcript of which is as follows:
"In order to cause a diffuse axonal injury that you saw what degree of force would have been necessary or what - yes, what degree of force, if possible?---There are two mechanisms. One is in a motor car accident, which would be a high‑speed motor vehicle accident.
SCOTT J: Assume that's not this case?---In this case.
TAVENER, MR: Yes?---the data isn't exactly worked out but there's three in the biomechanics of it. One is repetitive sustained motions of about 20 to 30 seconds. They are repetitive sustained motions of 40 to 50 shakes and in the paediatric literature the comment is much broader where the statement is made that the sustained repetitive vigorous shaking would be recognised as an individual to be dangerous, but one cannot give you the exact biomechanical force."
Dr Fabian expressed the following opinion in relation to the suggestion that striking the deceased in the back in the course of a cardiopulmonary resuscitation attempt could have caused the axonal injuries:
"TAVENER, MR: I'm asking you would they cause the injuries that you saw?---They certainly wouldn't cause diffuse axonal injuries. They certainly wouldn't cause a neck injury and they couldn't cause the rotation or shearing of the retina."
Having reviewed Dr Fabian's evidence, the learned trial Judge accepted her opinion that the axonal spheroids in this case were traumatic in origin, but said:
"The issue was whether the trauma was caused by the shaking of the deceased or by the resuscitation attempts that the accused described."
With great respect to the trial Judge, we would, however, consider that Dr Fabian's opinion on this issue was clear: the diffuse axonal injuries could not have been caused by the striking of the deceased in the back in the course of a cardiopulmonary resuscitation attempt.

Other evidence called by the Crown

We have so far summarised the essence of the specialist medical opinion called by the prosecution in this case. Apart from medical evidence, there was evidence before the learned trial Judge of two video recorded interviews conducted by investigating police with the respondent on 11 May at approximately 2 pm and 5.17 pm respectively. In the first of these interviews the respondent said that he had bathed the child, placed him on a towel, dried and dressed him and was about to put his pants on, turning to get some oil, when on turning back he saw his son's hand "really tight" and noticed that it was "like his son could not breathe". He contended that he told the deceased to get up (although how such a young child could respond to such direction is unclear) but after 10 to 15 seconds, the deceased just "flopped". This led the respondent to begin recitation attempts, first blowing into his mouth, then pressing his heart with his fingers and finally picking his son up and walking around "tapping him".
In the course of the interview the respondent vacillated in his account of what had occurred, saying at one stage that after he had tried to press his son's chest and nothing was happening, he thought the child's airway may have been blocked and for that reason, something might be stuck in this throat. He said that he then put him on his shoulder and was tapping his chest. Later he described this as "smacking his back" in an attempt to make his son breathe normally. However, at all times he maintained that he had never shaken the child and did nothing apart from attempt cardiopulmonary resuscitation.
The learned trial Judge noted that in the second of the video recorded interviews the statements made by the respondent were essentially consistent with what he had said in the first interview and with his evidence in court, save that in the demonstration in court as to how he had hit his son on the back, a greater degree of force was demonstrated than was evident in the video recorded interview.

The strength of the prosecution case

We are of the opinion that the prosecution case against the respondent was very strong. The opinion of highly qualified medical witnesses, which was truly expert opinion evidence, pointed very strongly to a conclusion that the "constellation of injuries" found on the deceased was consistent only with the so‑called "baby shaking syndrome" so that the deceased had died as a result of being subjected to acceleration/deceleration forces, combined with rotational effect.
Although there was some qualification expressed by some of the medical experts called by the Crown in relation to the conclusions they had reached, there was a very strong case that only one mechanism had caused the constellation of features present, and that mechanism could only have been shaking of the deceased. As Dr Cooke put it, the constellation of signs were very typical of shaking injury and they pointed "very strongly if not convincingly" towards shaking as the common cause for all features present.
It was, of course, for the learned trial Judge to determine on the whole of the case whether or not he was satisfied beyond reasonable doubt that the deceased's death was caused by his having been shaken violently by the respondent.

Evidence called by the defence

The defence adduced evidence in the case. The respondent himself gave evidence and in addition, there was evidence of good character of the respondent and expert medical testimony from a number of witnesses.
In relation to the evidence of the respondent himself, the learned trial Judge noted that his testimony was largely consistent with what he had said in his record of interview, save that his demonstration in the witness box of the blows he said he had struck to the back of the deceased indicated that such blows were firm, if not vigorous. The learned trial Judge had some reservations about some aspects of the respondent's evidence, but ultimately accepted his testimony as is revealed from the following conclusion:
"222I accept that the accused was in a state of panic when he realised that his son's breathing had been compromised, and that he did strike his son on the back a number of times with the heel of the palm of his hand with some degree of force in an attempt to dislodge what he thought may have been an obstruction in his son's airway."
The learned trial Judge pointed out that it was not the Crown case that the deceased's death had been caused by or contributed to by blows on the back, with the result that it was unnecessary to reach any further determinations about the force used by the respondent in this way and the extent to which (if at all) it brought into play the provisions of s 266 of the Criminal Code. The ultimate finding by the learned trial Judge was directly related to his conclusion about the testimony of the respondent. His Honour said:
"234In my view, it is not only possible, but likely that the accused administered sharp blows to the back of the deceased in an attempt to dislodge whatever he thought was obstructing his son's breathing. Those blows could have caused or contributed to the cascade of events which ultimately led to the death of the deceased.
235I was unable to conclude beyond reasonable doubt that the death of the deceased was caused by the deceased being shaken by the accused in the manner alleged by the prosecution."
Before reaching conclusions about the testimony of the respondent himself, the learned trial Judge dealt at length with the evidence of Professor Hilton. Having accepted that Professor Hilton was an eminent and highly qualified forensic pathologist with vast experience in the pathology field, his Honour pointed to a difference of opinion between Professor Hilton and Dr Fabian in relation to Dr Fabian's conclusions from the clinical findings she had made on examination of the various items referred to her. The learned trial Judge pointed out that Professor Hilton did not dispute Dr Fabian's findings, but disputed the conclusions she he said followed from those findings. He summarised Professor Hilton's conclusion in the following way:
"183Professor Hilton described the constellation of injuries in this case as not being all of the constellation of injuries normally regarded as indicative of shaken baby syndrome. In particular, he said, in this case there were no gliding contusions or corpus callosum haemorrhages. Professor Hilton also said that, in his view, there were other things other than direct trauma that could have caused the axonal swellings observed by Dr Fabian. Professor Hilton was of the view that diffuse axonal damage was not confined to diffuse axonal injury in that there were things other than direct trauma that could have caused the axonal swellings. In particular, he said, a stroke could produce such symptoms, as could ischaemic hypoxic encephalopathy. Professor Hilton's view, therefore, was that there were causes other than trauma which may produce those findings."
The learned trial Judge was also impressed with Professor Hilton's opinion in relation to the question of cardiopulmonary resuscitation. He summarised his testimony as follows:
"185Professor Hilton was asked specifically about the prospect of these injuries having occurred when the deceased's head was shaken in the course of the accused's attempt at cardio‑pulmonary resuscitation. The mechanism put to Professor Hilton was that the deceased was being held by the accused over the shoulder but with the head unsupported whilst the accused struck the deceased's back with a fairly vigorous force in order to try and remove an obstruction. Professor Hilton was asked if such a force could have accounted for the findings of Dr Fabian and he said:
'I think it was the perceived wisdom 3 years ago that it had to be very vigorous and in fact I was at a conference on shaken baby 2 years ago where extreme vigour was suggested as being required. I think particularly the later papers of Geddes, of which we have heard a fair bit, indicate that it's not necessarily so. It certainly is not necessarily so in all cases. I think again it comes back to that one size does not fit all.'
186Professor Hilton referred to the problems with young children who did not have the co‑ordination or strength to resist the effects of vigorous shaking. He said that when a child was unconscious, the problem was accentuated because there was no neuromuscular control and no co‑ordination. As a consequence, the child would tend to be floppy and incapable of control. In those circumstances, Professor Hilton said that he was unable to say what degree of force would be required to cause the neuropathological findings, but he said, 'It would logically be less than if the child was conscious.' "
We have previously quoted the learned trial Judge's reference to Professor Hilton's opinion that to conclude that the deceased had died by being shaken in a prolonged or violent way was "highly suspect". Clearly this opinion was considered by his Honour to be very important.
In weighing up the evidence of Professor Hilton, the learned trial Judge made specific reference to the respective qualifications of Dr Fabian and Professor Hilton. He said:
"192So far as Professor Hilton's evidence‑in‑chief was concerned, I should finally mention that at one stage he said he was approached to apply for the position of neuropathologist at Royal Perth Hospital, but he elected to continue to practise in the field of forensic pathology. He said that whilst he was not a neuropathologist, he had first‑hand knowledge, experience and insight into traumatic neuropathology.
193In my view, Professor Hilton was eminently qualified to testify in relation to neuropathology, as indeed was Dr Fabian, and in terms of qualifications and/or experience it was difficult to distinguish between the two. Professor Hilton, however, in my view, had vast experience in pathology."
After considering the evidence of Dr Fabian on the one hand and Professor Hilton on the other, the learned trial Judge reached the view that he was unable to conclude beyond reasonable doubt that the deceased had died from being shaken in the manner contended for by the prosecution. The conclusion was as follows:
"193… On the neuropathological aspect of the case the issue for determination was whether Dr Fabian's evidence was so compelling that the Court could be satisfied beyond reasonable doubt that the deceased died from violent or vigorous shaking. As will become apparent later in these reasons, having considered both Dr Fabian's evidence and the evidence of Professor Hilton, I was unable to conclude beyond reasonable doubt that the deceased died from being shaken in the manner in which the prosecution contended."
On the face of it, it is difficult to understand how the learned trial Judge found it difficult to distinguish between the respective qualifications of Professor Hilton and Dr Fabian in the field of neuropathology. Dr Fabian clearly appeared to be the more qualified of the two.

Professor Hilton's qualifications

Professor Hilton's qualifications were the subject of examination and cross‑examination. It was established that he held Bachelor of Medicine and Bachelor of Surgery degrees from the University of St Andrews and was a Fellow of the Royal College of Pathologists of Australasia. Other qualifications were fellowships of learned colleges, which included the Australian College of Biomedical Scientists, the Australian College of Legal Medicine and the Royal Australasian College of Medical Administrators. Professor Hilton had started formal practice in forensic pathology in Western Australia in 1970 and was admitted to the College of Pathologists in 1972. He was still practising in forensic pathology, more or less in a consulting administrative capacity. He had been a forensic pathologist at the State Health Laboratories in Western Australia, then chief forensic pathologist in the mid‑80s and then associate professor of pathology at the University of Sydney in 1991.
Professor Hilton's experience in neuropathology was the subject of the following testimony:
"Dr Hilton, perhaps I could ask you, first, as the issue has been raised, what experience and expertise do you have in the field of neuropathology generally?---As a forensic pathologist traumatic neuropathology is a fairly integral part of the practice of forensic pathology. In addition to that when I had the good fortune to live and practise in Perth I attended frequently at the department of neuropathology at Royal Perth Hospital. I used to in fact do work for the department of neuropathology of Royal Perth Hospital and at one stage I came to one of these crossroads in life where I was approached to apply for the job as neuropathologist at Royal Perth Hospital, the job which I understand Dr Fabian probably does now. I elected to continue in forensic pathology. So, no, in the general sense I am not a neuropathologist but in a particular sense I have some first-hand knowledge, experience and insight into traumatic neuropathology."
In cross‑examination, Professor Hilton was questioned about the exact role he had played in the field of neuropathology:
"In your time in Western Australia, in terms of neuropathology, is it correct to say that the brains of the persons who were subjected to post-mortems were sent to a neuropathologist?---Yes.
And you had some involvement, which you have now explained, with the neuropathologist in looking at brains?---Not with a neuropathologist isolation but I actually participated in the work of the department of neuropathology at Royal Perth Hospital.
Ultimately in post-mortems generally in which you were involved you would rely however on the opinion of the neuropathologist?---Yes, I would."
Other passages that bear reproduction are as follows:
"Would you agree that Dr Fabian is in a better position than yourself to make that comment?---No. Dr Fabian is a very good neuropathologist. She gave a very good description of what she saw microscopically and macroscopically. I mean, one of the purposes of an autopsy report is so that other people can interpret it and I think she discharged that duty well.
…
FORDHAM, MS: I am taking you back to towards the beginning of your cross examination now, Prof Hilton. There was some discussion about the nature of your work in neuropathology and you indicated that you had actively participated in the work of the department of neuropathology at Royal Perth Hospital. Firstly, was this before or after your work as a forensic pathologist, or both?---Both.
Secondly ?---Before when I was in hospital-based pathology and whilst I was occupying a position of forensic pathologist.
You said you actively participated in the work of the department. Without obviously giving a long speech, what was the general nature of that participation in the work of the department?---It was largely but not exclusively concerned with the examination of the brains and spinal cords and sometimes peripheral nerves of people who had died and who had either come for examination in my department by myself or one of my colleagues, or who had been examined in other departments and referred to the department of neuropathology for examination. In other words, I was doing brain cuts on my own cases, other people's cases from my own department, and other cases referred in from other departments.
Those examinations, were they microscopic, macroscopic or both?---Both."
The passages quoted from the evidence will suffice to reveal that it was an overstatement by the learned trial Judge to say that it was difficult to distinguish between the qualifications and experience of Dr Fabian and Professor Hilton. On any view of it, Dr Fabian held more impressive qualifications and experience in the field of neuropathology than did Professor Hilton. The latter's involvement with neuropathology was essentially limited to post‑mortem procedures, where he liaised with the Department of Neuropathology and participated in the work of that Department, but necessarily in his capacity as pathologist, rather than neuropathologist.

To the extent that the learned trial Judge reached the conclusion that there was little to choose between the two experts in relation to their experience in neuropathology and that Professor Hilton was "eminently qualified to testify in relation to neuropathology", we consider the learned trial Judge to have made an error of fact. Whether that error impacts upon the ultimate conclusion reached by the learned trial Judge is another question.
As we have pointed out, the learned trial Judge effectively accepted the testimony of the respondent that he had administered sharp blows to the back of the deceased in an attempt to dislodge something he thought was obstructing his son's breathing. His Honour concluded that those blows could have caused or contributed to the cascade of events which ultimately led to the death of the deceased and (thus) that he was unable to conclude beyond reasonable doubt that the death of the deceased was caused by the deceased being shaken by the accused in the manner alleged by the prosecution. If one adds to that conclusion, his Honour's favourable view of Professor Hilton's evidence, the conclusion that the prosecution had failed to prove the case beyond reasonable doubt was inevitable.
The testimony of Professor Hilton which supported his conclusions and which led to the learned trial Judge forming such a favourable view of his evidence, need not be repeated in detail. It is perhaps sufficient to say that Professor Hilton questioned the accepted thinking on the "shaken baby syndrome". By way of example the following passages are cited from his testimony:
"… What do you say about the distribution of those haemorrhages and whether they are characteristic of non-accidental injury?-I think it's carrying it too far to say that they are characteristic of anything. They're certainly, as I understand it from Dr Fabian's report and from the examination of Dr Burvill, of a character which may well be associated and has been associated with what's unfortunately become to be known as the shaken baby syndrome. There are several confounding factors here. There's several confusing points. One is that this child not only had raised intracranial pressure it also at one stage had a documented coagulopathy which would tend to make any haemorrhage anywhere worse. The second thing is, and I think it is perhaps even more important, is the characteristics and distribution of retinal haemorrhages in association with the shaken baby syndrome - I think I heard Dr Cooke use the phrase "the jury is still out on that" and I would agree with that. The last word certainly has not been written on retinal haemorrhages in association with child abuse of any sort nor has the final word been written with the accounts of retinal haemorrhages in association with accidental injury, and perhaps not even with natural disease. It's a fairly rapidly evolving area of neuropathology.
So are such retinal haemorrhages as in the distribution found in Cameron Court and described by the witnesses inevitably a consequence of vigorous or violent shaking? ---Something had to start the process off and it may well have been some movement of the child's head which may have been shaking. What I have said and what I am saying - I will repeat it - is that I don't think there is enough unanimity of opinion as to whether these haemorrhages are of necessity associated with shaking, violent or otherwise, of themselves and that distribution or severity is pathognomonic in any case and again we have got confounding factors in this case which may have altered the whole picture.
When you use the term 'a shaking' are you importing into the use of that word any notion of deliberate action or are you simply talking about the movement of the head?---No. I think the purposefulness of the action is not for me to judge. What I am saying is that the overall picture is consistent with or suggestive of the unsupported child's head moving with a degree of vigour which I cannot quantitate vis-a-vis the child's body.
…
Can you say anything about the amount of force required to produce such movement in either a conscious or unconscious child if one accepts that the child is being held by father and that force is being applied between the shoulder blades?---I cannot quantitate it. I think it was perceived wisdom 3 years ago that it had to be very vigorous and in fact I was at a conference on shaken baby 2 years ago where extreme vigour was suggested as being required. I think particularly the later papers of Geddes, of which we have heard a fair bit, indicate that it's not necessarily so. It certainly is not necessarily so in all cases. I think again it comes back to that one size does not fit all.
…
And in this particular case is there any other possible or reasonable cause other than prolonged and violent shaking? ---There may be. Again, I don't know in this particular case. If there is retinal detachment and haemorrhage in association with that retinal detachment I think there is another question comes up as to whether the retinal detachment was caused by a local haemorrhage, whatever may have caused the haemorrhage, or whether in fact the haemorrhage occurred because of the retinal detachment before whatever caused that happened.
So a chicken and egg question on that?---It's chicken and egg both ways, I think.
And as you say then, that still leaves the issue of what caused the retinal detachment in the first place?---Yes.
As I understand your evidence then you are not saying that the only possible cause is prolonged and violent shaking? ---I think that's not a - as a general proposition that is not tenable and I think it's highly suspect in any individual case unless there is a reliable witness."

Grounds of appeal

Ground 1

The first ground of appeal contends that the learned trial Judge erred in finding that Professor Hilton was qualified to testify in the field of neuropathology.
We have already detailed the evidence which dealt with the qualifications of Professor Hilton and Dr Fabian. There can be no doubt that Dr Fabian was the more qualified of the two pathologists in the field of neuropathology. She had held the position of consultant neuropathologist at Royal Perth Hospital for a period of 10 years and had been involved in the same discipline at Princess Margaret Hospital for more than five years. Professor Hilton was essentially a forensic pathologist with a background in forensic pathology going back to 1970. He had actively practised in the field of forensic pathology for 21 years. Although Professor Hilton contended that traumatic neuropathology was an integral part of the practise of forensic pathology and he attended frequently at the Department of Neuropathology at Royal Perth Hospital in the course of his work, it could not be said that he was a practising neuropathologist. Indeed, he disclaimed any suggestion that he was, contending only that he had first‑hand knowledge, experience and insight into traumatic neuropathology.
As between the two specialists, it is therefore clear that Dr Fabian was the more qualified in the field of neuropathology. That is not, however, to say that Professor Hilton was unqualified to testify in the field of neuropathology. Whilst the learned trial Judge may have overstated Professor Hilton's qualifications and experience, Professor Hilton had nevertheless qualified himself sufficiently to give the evidence that he did by reference to the field of neuropathology. We have already quoted the passage in which Professor Hilton outlined the extent of his work in the Department of Neuropathology at Royal Perth Hospital and extracts from Professor Hilton's cross‑examination on the issue. He was not challenged by the prosecutor on his capacity to express opinions in relation to neuropathology. The prosecutor was content to leave the matter on the basis that in post‑mortem examination, Professor Hilton would generally rely on the opinion of a neuropathologist. As we see it, that did not preclude him from expressing opinions which were related to the discipline of neuropathology.
In Casley‑Smith v F S Evans & Sons Pty Ltd and Anor (No 1) (1988) 49 SASR 314 at 320 ‑ 322, Olsson J reviewed the authoritative texts and decided cases on the subject of expert testimony and concluded (inter alia):
"(3)In considering the qualifications of a proposed expert witness there are no hard and fast rules appropriate to all circumstances. Each situation must be considered in context and both the general nature and the precise character of the question upon which expert evidence is required have to be taken into account when deciding whether the qualifications of a person entitle that person to claim to be accepted as a competent expert: Said Ajami v Comptroller of Customs [1954] 1 WLR 1405 at 1408. As to this it is, as Blackburn J said in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 160, assumed that the judge can sufficiently grasp the nature of the expert's field of knowledge, relate it to his own general knowledge, and thus decide whether the professed expert has sufficient experience of a particular matter to make his evidence admissible.
…
(6)Nevertheless opinion evidence must strictly be confined to matters which are truly the subject of the special knowledge study or experience of the proposed witness; and the witness may not be permitted to range outside of his or her proper sphere of expertise merely under the rubric of some wide, generic type, description or title of qualifications said to be held: see Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 at 119.
That is, of course, not to deny the validity of the point recently made by Cox J in Tabe v Stanbury (unreported, Supreme Court, SA, NO 826, 13 July 1988), that the vital issue is always the span of a person's training and experience enabling that person to make a responsible judgment; and not necessarily the relative depth of specialist knowledge within a particular discipline area - leaving to one side abstruse areas so highly specialised that a mere basic formal qualification or experience would necessarily and patently be quite inadequate to found any helpful, responsible, opinion.
It is also not to deny the undoubted proposition that an expert witness, duly qualified in the relevant fields, is entitled to draw on and hypothesise with regard to the basis of the work, including unpublished work, of others in his field as part of the process of arriving at a conclusion - provided that such work is clearly identified, so that its cogency and the probative value of any conclusion can be tested by reference to it: R v Abadom [1983] 1 WLR 126; 1 All ER 364; see also H v Schering Chemicals Ltd [1983] 1 WLR 143; 1 All ER 849. However, this proposition, in itself, begs the question as to what is the relevant field of any actual expertise possessed by a proposed witness."
In the light of Professor Hilton's testimony about his involvement in the field of neuropathology, it cannot, in our view, be said that he was permitted in this case to range outside his proper sphere of expertise. He had expertise in the field of neuropathology, although arguably less experience and expertise than Dr Fabian. In our view this was not a case in which an expert witness trespassed beyond the field of his expertise (cfVelevski v The Queen (2002) 187 ALR 233, particularly per Gummow and Callinan JJ at [161] et seq; Anderson v The Queen (2000) 1 VR 1 per Winneke P at page 25; R v Middleton (2000) 114 A Crim R 258 per Anderson J at [19] ‑ [21].)
In any event, the qualification and competency of witnesses to give opinion evidence as experts is primarily a matter for the court of trial as a question of fact. A court of appeal will be slow to reverse the decision to admit such evidence: R v Middleton (supra) at [21]; Bratt v Western Airlines (1946) 166 ALR 1061 at 1067; Clarke v Ryan (1960) 103 CLR 486 per Menzies J at 503.
It follows that we are satisfied that there was no error of law on the part of the learned trial Judge in concluding that Professor Hilton was qualified to testify in the field of neuropathology. Ground 1 has not therefore been made out.

Ground 2

Ground 2 was not pressed at the hearing. It contends that the learned trial Judge erred in law and in failing to give reasons as to why he found that Professor Hilton was qualified to testify in the field of neuropathology. In dealing with this ground it is sufficient to say that the learned trial Judge detailed Professor Hilton's qualifications, describing him as an eminent and highly qualified forensic pathologist with vast experience in the pathology field, and concluding that he was eminently qualified to testify in relation to neuropathology. His Honour noted Professor Hilton's experience in the discipline of neuropathology whilst practising at Royal Perth Hospital as a forensic pathologist, pointing out that whilst he was not a neuropathologist he had first‑hand knowledge, experience and insight into traumatic neuropathology.
Whilst we disagree with the learned trial Judge's conclusion that there was little difference between the qualifications of Dr Fabian and Professor Hilton in the field of neuropathology, his Honour did set out sufficiently in his reasons why it was that he considered Professor Hilton qualified to testify about matters of neuropathology. Ground 2 is not made out.

Ground 6

This ground contends that the learned trial Judge erred in law in failing to give himself an expert evidence direction which was required in the case by reason of the conflict between the medical experts called by the Crown and the evidence of Professor Hilton.
The provisions of s 651C of the Criminal Code, which deal with the law practice and procedure relating to criminal trials by Judge alone, include the following provision in s 651C(3):
"If any written or other law -
(a)requires a warning, information or instruction to be given to a jury in certain circumstances; or
(b)prohibits a warning from being given to a jury in certain circumstances,
the judge in a trial by judge alone under this chapter is to take the requirement or prohibition into account if those circumstances arise in the course of the trial."
The appellant contends that in this case the learned trial Judge should have directed himself that he must consider the expert evidence, together with all the other circumstances he found proved and consider the quality, weight and use of the expert evidence before accepting it. Further, it is contended that where the ultimate issue in a trial is to be decided on the basis of scientific or expert evidence, the expertise of each expert, and their relationship to each other, should be closely examined and a direction given on those matters, and as to the resolution of any conflict between the experts.
It is certainly ample authority in relation to the latter point. Where there is conflict in relation to medical opinion, a jury (and a Judge sitting alone) must be instructed that they cannot use one opinion to the exclusion of the other in a manner adverse to the accused on an issue critical to guilt unless satisfied beyond reasonable doubt that the opinion which is favourable to the accused is not correct: see R v Middleton (supra) per Anderson J at [37]. However, in this case the learned trial Judge clearly concluded that he was not satisfied beyond reasonable doubt that the opinion evidence of the experts called by the Crown was so compelling that he was satisfied beyond reasonable doubt that the opinion expressed by Professor Hilton on behalf of the defence was not correct. Indeed, to the contrary, the learned trial Judge accepted much of what Professor Hilton said, and by reason of Professor Hilton's evidence and other evidence in the case, his Honour found that he was left with a reasonable doubt as to the cause of death of the deceased. It is true that his Honour did not give himself a direction in relation to the matter, but had he done so, it seems to us that the result would have been the same.
It is, of course, true that his Honour was not bound to find that there was a reasonable doubt as to the cause of death of the deceased simply because Professor Hilton expressed an opinion contrary to the opinions of the experts called by the Crown. This is made clear in R v Sodo (1975) 61 Cr App R 131 at 133 ‑ 134, in the following passage:
"… Basic to the issues before us today is the proposition which one hears a great deal nowadays, namely, that if experts differ there must be a reasonable doubt in the jury's mind which will lead to an acquittal. This is heresy, and the more often it can be pointed to as heresy the better. To apply such a principle would be to have trial by expert instead of trial by jury. The truth of the matter is that juries are perfectly entitled when experts before them differ to decide, if they think fit, that one expert is telling them the right and proper answer and the other is not, and if they reach such a conclusion beyond reasonable doubt it is proper for them to act on the opinion of one expert although that is contradicted by another expert."
Although a failure by a Judge sitting alone to give himself a direction in relation to the proper use to which expert evidence should be put, might, in an appropriate case, demonstrate an error of law, it cannot be said in this case that the learned trial Judge misdirected himself in any way in relation to the expert evidence, or that his failure to give a direction to himself as to how to treat the expert testimony, led to a miscarriage of justice: see R v Kurtic (1996) 85 A Crim R 57 per Hunt CJ at CL at 59 ‑ 60; R v ADW (2002) A Crim R 532 per Williams J at [61] ‑ [62]. We do not consider there to be any substance in ground 6.

Ground 7

In this ground the appellant contends that the learned trial Judge erred in fact in finding that the evidence of Professor Hilton was sufficient to give rise to a reasonable doubt as to the guilt of the accused. It is contended that Professor Hilton's evidence, when combined with the account of the respondent himself and concessions made by medical experts called by the Crown, was insufficient to give rise to a reasonable doubt as to whether the respondent caused the death of the deceased by shaking on the whole of the evidence.
In support of this ground, counsel for the appellant argues that Professor Hilton's evidence was given in only general terms and was therefore insufficiently precise on the critical issues to justify the learned trial Judge concluding that by reason of that evidence and other evidence in the case, there was a reasonable doubt as to the guilt of the respondent.
It is true that Professor Hilton, in some instances, expressed reservations in relation to some of the conclusions he had reached. So did many of the expert witnesses called. We have already quoted the passage from Professor Hilton's evidence in which, when asked whether there was any other possible or reasonable cause for the deceased's death other than prolonged and violent shaking, the Professor answered that there might be and that he did not know in this particular case. Professor Hilton said that "as a general proposition" the proposition that prolonged and violent shaking was the only cause of death was not tenable. He expressed the view that it was "highly suspect" and in any individual case unless there was a reliable witness. Whilst this may have been evidence in general terms, lacking in precision, we interpret Professor Hilton's evidence to be that the whole question of the so‑called "baby shaking syndrome" remains an area in which no firm conclusions can necessarily be reached. As he put it in a passage we have previously quoted, it is "a fairly rapidly evolving area of neuropathology".
This indeed was the view of Dr Clive Cooke when pressed about Professor Hilton's opinion. The following passage from the cross‑examination of Dr Cooke makes this clear:
"Dr Hilton gives, at point 12, his medical opinion which is:
'In our current state of partial ignorance and uncertainty relating to this particular area of accidental and non‑accidental, intentional-unintentional injury of this general type the attribution of Cameron's death to violent shaking with or without impact is unsafe in the absence of any corroborative evidence.'
That is of course the position I am putting to you and asking whether - and specifically in respect of Cameron's injuries rather than the general learning about this particular constellation - you accept Prof Hilton's opinion on that?---I think he is basing that opinion on this information from Geddes articles and the whole area is, as I have said and as you have said, is evolving but just like any other medical area it may be that this concept of, if you like, relatively non violent shaking causing this syndrome is right but, as I said earlier, to use that term, the jury is still out and as yet is really to consider that view. So, yes, I mean it may turn out that this view is right, you know. I just can't anticipate the way that's going.
All right. In terms of your own view then would it be fair to say that your own view is that to attribute Cameron's death to violent shaking with or without impact is unsafe with the current state of knowledge we have?---The current state of knowledge is simply that; this is typically vigorous - sometimes people use the term 'violent' but certainly the term 'vigorous' is well used and well stated but, you know, the area is evolving. When you ask me all I can do is come to court and say, 'Look, based on what I know and what I have learnt from my reading, this is the position, this is the current position' and the current position is that vigorous shaking is required notwithstanding the view of Geddes which may with time prove to be right.
It would be fair to say then, given that you have said the current view is - notwithstanding Geddes which may yet prove to be right, it would be fair to say then that you are only telling us what you think the balance of opinion is at the moment? Would that be right?---Yes. I mean, it's the otherwise common view, if you like.
In light of the importance of the Geddes studies, the eminence, if you like, of the authors in the journal and the particular care that we have discussed with this particular study, would it be fair to say then that your own personal opinion about the matter is that you could not say that Cameron's death was due to violent shaking with or without impact?---Yes. I am prepared to be open in my consideration of that and all I can say is that, you know, up to Geddes' work the common view was that it was vigorous shaking. Now following consideration and discussion Geddes' view may turn out to be the right one.
All right?---But to my understanding that consideration and discussion has not yet happened.
Fine. So I am asking you therefore is your personal view that you would not be prepared to say that Cameron's death was due to violent shaking with or without impact? You would not be prepared to go that far?---That's right."

Having regard to the concessions made by Dr Cooke and to the testimony of Professor Hilton on the question whether vigorous shaking is required to bring about death in circumstances where a baby is shaken, we can see no substance in the contention in ground 7 that on the whole of the medical evidence, when combined with all other evidence in the case, the learned trial Judge was foreclosed from concluding that he was left with a reasonable doubt in relation to the cause of death.

Ground 8

This ground contends that the verdict of acquittal was unreasonable and unsupported by the evidence. The appellant's outline of argument in support of this ground details the evidence called on behalf of the prosecution, highlighting in particular that of Dr Cooke, Dr Fabian, Dr Silberstein and Dr Burvill. Reference is also made to the evidence of Dr Thonell (a specialist radiologist) and Dr Knight (an intensive care specialist) whose evidence we have not detailed, but which did not, in our opinion, advance the prosecution case further.
The appellant points to the evidence of the respondent and to inconsistencies in his testimony, and contends that on the totality of the evidence, particularly that led by the prosecution, it was established that the constellation of features present in the deceased, identified the case of classic example of the baby shaking syndrome. It is contended that the learned trial Judge erred in fact in finding that it was not only possible but likely that the respondent had administered sharp blows to the back of the deceased in an attempt to dislodge whatever he thought was obstructing his son's breathing.
We do have difficulty with the learned trial Judge's conclusion that it was not only possible, but likely, that the respondent had administered sharp blows to the back of the deceased and that those blows "could have caused or contributed to the cascade of events which ultimately led to the death of the deceased". It was not for the learned trial Judge to look for the possible or likely explanation as to how the deceased died. The question was whether the prosecution had proven beyond reasonable doubt that the deceased had died in the manner alleged. That is, by being shaken by the respondent in such a violent manner as to bring about his death.
However, we have sufficiently reviewed the evidence in the case to establish that there was evidence which the learned trial Judge was entitled to accept and which could lead him to the view that there was a reasonable doubt as to the cause of death of the deceased. The test to be applied can be taken from Jones v The Queen (1997) 191 CLR 439. That case established that on appeal against conviction, the test for an unsafe or unsatisfactory verdict is whether the Court thinks that upon the whole of the evidence it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty. As Gaudron, McHugh and Gummow JJ pointed out (at 451), it is not the function of the Court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours referred with approval to the decision of the majority in M v The Queen (1994) 181 CLR 487 (at 493 ‑ 494), quoting the following passages:
" 'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt of innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'
The majority judges explained the application of the test as follows:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.' "
Translated to a Crown appeal against conviction by a Judge sitting alone (Criminal Code, s 688(2)(ba)), the question is whether, upon the whole of the evidence, it was open to the learned Judge to be left with a reasonable doubt of the accused's guilt.
The learned trial Judge was, in this case, entrusted with the primary responsibility of determining whether the accused person was guilty or not guilty. He had the benefit of seeing and hearing all witnesses. He was able with his judicial training to weigh up and balance the opinions expressed by the various experts called at the trial. In the end, his Honour found that on the whole of the evidence, but in particular having regard to the evidence of Professor Hilton, he was left with a reasonable doubt that the death of the deceased was caused by the deceased being shaken by the respondent in the manner alleged by the prosecution. We can find no basis upon which it can be said that it was not open to the learned trial Judge to have held such a reasonable doubt. The evidence before the Judge did not establish only that a Judge acting reasonably could not otherwise than have been satisfied beyond reasonable doubt of the guilt of the respondent. We do not consider there to be any substance in ground 8.

Submission of respondent on prosecution right of appeal

The respondent contended (inter alia) that leave to appeal should be refused because the Criminal Code contains no mechanism by which this Court could quash the decision of the learned trial Judge, order a retrial or otherwise make any other consequential orders. No notice of contention was filed by the respondent in respect of this matter, but the Criminal Procedure Rules 2000 (WA) do not appear to require the filing of any such notice. In any event, the Court is prepared to deal with the question. To understand the submissions we turn to the provisions of the Criminal Code.
In 1994 the Criminal Code was amended by the addition of Ch LXIVA – Trial by judge alone. These provisions included by s 651B(2) a requirement for the Judge to give reasons for judgment. As part of the legislative package introducing Trial by judge alone, Criminal Code s 688(2), a section dealing with the right of the prosecution to appeal certain decisions, was amended to add s 2(ba), which relevantly reads:
"(2)An appeal may be made to the Court of Criminal Appeal on the part of the prosecution –
…
(ba)against any verdict of acquittal given by a judge alone under chapter LXIVA and any judgment founded on that verdict ‑
(i)on any ground of appeal which involves a question of law alone; or
(ii)with the leave of the Court of Criminal Appeal or upon the certificate of the judge that it is a fit case for appeal, on any ground of appeal which involves a question of fact alone or a question of mixed law and fact;
… "
The issue raised by the respondent is the power of the Court of Criminal Appeal to determine the appeal and make consequential orders. The issue arises because, unlike appeals by convicted persons and other appeals by the prosecution, there is no provision within the CriminalCode which deals expressly with these matters.
Section 689 of the Criminal Code, which is entitled "Determination of appeals in ordinary cases" deals only with appeals against conviction by a person convicted on indictment, not appeals by the prosecution. Section 690 of the CriminalCode is entitled "How other appeals disposed of" and provides power to the Court of Criminal Appeal to make orders on certain appeals brought by the prosecution but does not in terms or by implication give power to make orders consequent upon an appeal by the prosecution pursuant to Criminal Code s 688(2)(ba).
In R vMargaria & Anor [2003] WASCA 253, EM Heenan J made comments by way of obiter dicta concerning the right of appeal by the prosecution and the power of the Court of Criminal Appeal. He found it unnecessary to decide the issue and the other Judges (Steytler and Parker JJ) expressly refrained from dealing with it. At issue in Margaria, although not decided, was whether the Criminal Code s 651C(4) or (5) provides a source of power to dispose of appeals from decisions of a judge sitting alone. Clearly those sections do not. We approach the matter differently.
The Full Court is constituted under the Supreme Court Act 1935:
"57. Full Court, constitution of
(1)Except as hereinafter provided a Full Court may be constituted by any 2 or more Judges of the Supreme Court sitting together:
Provided that the Full Court when sitting as the Court of Criminal Appeal shall be constituted by an uneven number of Judges.
(2)The Full Court may sit in 2 divisions at the same time."
The Full Court constituted as the Court of Criminal Appeal derives its specific jurisdiction under s 687 of the Criminal Code:
"687. Court of Criminal Appeal
(1)The Full Court (as defined by section 57 of the Supreme Court Act 1935) shall, subject as hereinafter provided have jurisdiction to hear and determine appeals under this chapter, and the expression Court of Criminal Appeal in this Code shall mean the said Full Court.
...
(3)The Court of Criminal Appeal shall, for the purposes of and subject to the provisions of this chapter, have full power to determine, in accordance with this chapter, any questions necessary to be determined for the purpose of doing justice in the case before the Court.
... "
By s 58 of the Supreme Court Act the Full Court has jurisdiction to hear and determine applications for a new trial or rehearing of any cause or matter or to set aside or vary any verdict, finding or judgment found, given or made in any cause or matter tried or heard by a Judge or before a Judge and jury.
The clear legislative intention under Criminal Code s 688(ba) was to invest the prosecution with a right of appeal against a verdict of acquittal following trial by Judge alone. We regard it as no more than oversight that s 690 was not amended in consequence of the amendments to the Criminal Code s 688. Contrary to a submission by the respondent, it would make no sense for Parliament to deliberately refrain from providing a mode of disposition of appeals on the basis of double jeopardy. Parliament would simply have refrained from giving the prosecution a right of appeal.
Accepting that the exercise is one of statutory construction we approach it conscious that Parliament intended to give the prosecution a right of appeal. Parliament cannot have intended that the right would be bestowed on the prosecution without also giving the Court the power to hear and determine any appeal brought pursuant to that right. Such a result is illogical and pointless.
The Court of Criminal Appeal is the Full Court even though its powers may be separately prescribed. No doubt if there are provisions in the Supreme Court Act and provisions in the Criminal Code which contradict each other the provisions of the Criminal Code will prevail. The subject appeal is not such a case. The provisions of the Criminal Code are silent as to the Court's powers of determination and to make orders disposing of appeals.
The relationship between the Full Court and the Court of Criminal Appeal was examined in Carter v The Queen (1994) 12 WAR 310. In that case the appellant sought an order for a separate trial from other co‑accused and the trial Judge refused the application. The appellant appealed to the Full Court. Malcolm CJ, (Ipp and Scott JJ agreeing), after noting that the Criminal Code confers no right of appeal against the dismissal of an application for a separate trial, and that it was therefore conceded the appeal could not be brought before the Court of Criminal Appeal, dealt with the submission that s 58(1)(b) of the Supreme Court Act confers jurisdiction on the Full Court. At 314, Malcolm CJ held that Parliament did not, by s 58 of the Supreme Court Act, intend there to be a general right of appeal to the Full Court. We mention Carter in order to distinguish it from the present case. The issue in Carter was the right of appeal. In the present case the issue is the power of the Court of Criminal Appeal to dispose of an appeal brought pursuant to a statutory right.
In R v Mickelberg (1996) 90 A Crim R 126 the question at issue was the power of a Court of Criminal Appeal to entertain a motion to dismiss an appeal for want of prosecution. No question of a right of appeal arose. Malcolm CJ, (Murray and Steytler J agreeing), held, at 129, that the Criminal Code s 697 brought into play all of the powers of the Full Court in Civil appeals. Section 697 relevantly reads:
"For the purposes of this chapter the Court of Criminal Appeal may, if they think it necessary or expedient in the interests of justice ... exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals in civil matters ... "
We would apply the decision in Mickelberg to the facts of this case.
The respondent argues that applying the principle expressio unius est exclusio alterius there is no power to make consequential orders in the event that the appeal is allowed. If the respondent's argument is correct the Court would not have any power to make any orders either allowing or dismissing the appeal. However, in view of the clear legislative intention to give the prosecution a right of appeal, in our opinion the better view is that the combination of Criminal Code s 687(3) and s 697 provides all the power necessary to the Court of Criminal Appeal to make consequential

orders disposing of an appeal in the event that the appeal is allowed. The appeal is competent because there is power in the Court to make orders disposing of the appeal in due course.

For the reasons we have given, we would grant leave, but dismiss the appeal.
WALLWORK AJ: These are reasons for judgment after a Crown appeal against the acquittal of the respondent on an indictment for murder, contrary to s 279 of the Criminal Code (WA), by a single Judge of the Supreme Court of Western Australia.
The respondent had elected trial by Judge alone and the trial took place from 19 May 2003 to 29 May 2003. On 3 June 2003 the Judge acquitted the respondent of both murder and manslaughter.
The appellant now appeals pursuant to s 688(2)(ba) of the Criminal Code. The first ground of appeal is that the learned trial Judge erred in law in finding that Professor Hilton was qualified to testify in the field of neuropathology. A second ground is that the learned trial Judge erred in law in failing to give himself an expert evidence direction, given the conflict between the medical experts called by the Crown and the evidence of Professor Hilton. A third ground alleges an error in fact finding on the part of the learned Judge when he found that the evidence of Professor Hilton gave rise to a reasonable doubt.
The Crown contends that the evidence of the respondent and any concessions made by the medical experts called by the Crown were not capable of giving rise to a reasonable doubt as to whether the respondent had caused the death of the deceased child by shaking. Finally, it is said that the verdict of acquittal was unreasonable and unsupported by the evidence. The other grounds of appeal were abandoned.
The reasons of the Judge were most comprehensive and cover 34 pages in the appeal book. At the commencement of them his Honour referred to some principles of law and to the fact that the respondent had given evidence at the trial. That last fact was an important matter in my view, because in its submissions on the appeal, in my view, the Crown tended to concentrate on the effect of the medical evidence alone. However, his Honour said in his reasons that he took into account what the respondent had said on oath; also the contents of the 000 phone call made by the respondent to seek help for the deceased, and the video recorded interview the respondent made with detectives in the course of an enquiry following the death of the deceased.

The Crown charge was pursuant to the provisions of s 279. His Honour set out the relevant parts as being:
"279 'Murder', definition of
Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say -
(1)if the offender intends to do the person killed or to some other person some grievous bodily harm … is guilty of murder."
His Honour recorded that in opening the Crown case, counsel had alleged that the respondent was home on 8 May 2001 with the deceased and his 3‑year‑old daughter when the incident, the subject of the trial had occurred. Counsel said in opening that the respondent, his daughter and the deceased were the only people at his house at the time of the incident and that during the afternoon, the respondent had given the deceased his bath. At that time the deceased had been normal. After the bath the respondent said he had dressed the deceased. He had then noticed that the child was unwell and that he was having difficulty in breathing. He said the child then became "floppy".
At 2.40 pm the respondent had contacted an ambulance via the 000 telephone line. A short time later an ambulance had arrived at the house. The ambulance officers had assessed the child and then taken him immediately to the Swan Districts Hospital. The child was assessed at that hospital. He was then transferred immediately to Princess Margaret Hospital by ambulance. On admission to that hospital he was suffering from, amongst other things, a severe swelling of the brain. His Honour said that on 11 May 2001, the life support system which was keeping the deceased alive had been removed and the child had been declared deceased.
It was the Crown case that a post‑mortem examination of the deceased, conducted on 14 May, had concluded that he had died from head injuries. There was brain swelling, bleeding around the brain, subdural haemorrhage and congestion of the lungs. Microscopic examination had showed widespread axonal injury, signifying severe brain injury. There had also been reduced oxygen and blood supply to the brain with some evidence of spinal injury.
The Crown case was that the deceased had shown a constellation of features, most of which allegedly indicated that he had been shaken. It was contended that taken together those features pointed compellingly to the fact that the deceased had died as a result of being shaken.
In the course of his reasons his Honour discussed quite extensively the Crown medical evidence, including that of Dr Burvill, an ophthalmic surgeon, who had examined the deceased's eyes and found extensive subretinal and inter‑retinal haemorrhages of various depths, both centrally and peripherally in his retina.
The Crown prosecutor had said in opening:
"Evidence shows that the force required to achieve the haemorrhages as described by Dr Burvill would need significant repeated shaking with a torsional effect."
Counsel also said that other witnesses would testify that the medical findings were highly suggestive of non‑accidental injury involving extreme shaking. It was contended that on the medical evidence, the nature of the shaking which the respondent would have had to have done to inflict the injuries seen by the medical practitioners was significant and would be recognised by anyone as being inherently dangerous. The prosecution contended that the manner in which the respondent would have had to have shaken the child to cause the injuries showed an intention to cause grievous bodily harm to the child.

The interview of the respondent with the detectives had taken in total over three hours. The video interview concluded at 17 minutes past 5, having started at 2 pm on 11 May. His Honour found that the respondent's statements during that interview were substantially consistent with statements made by him to the operator when the 000 phone call was made and with his evidence in court, except that in the demonstration given in the court as to how he hit his son on the back, a greater degree of force was demonstrated than in the video interview.
Dr Cooke, a forensic pathologist, performed the post‑mortem on the deceased. He testified that he was the chief forensic pathologist for Western Australia. His Honour found that Dr Cooke was a highly qualified and skilled forensic pathologist of many years' experience.
Dr Cooke found no evidence of bruising anywhere on the deceased's body, nor obvious bruising beneath the skin. He said that if the deceased had been shaken by being held by the arms he may have found fingertip bruising, depending on the clothing the child had been wearing. There was no such bruising in this case. Dr Cooke noted that there was not only subdural haemorrhage but also haemorrhage along the spinal cord. He was unable to be precise as to whether bleeding around the spinal cord was a continuity of the subdural haemorrhage or whether it was caused by different type of impact. He considered that the constellation of findings was not consistent with any other cause than the deceased's brain being shaken in a manner which he described as "violent". He said his views of the cause of death were based substantially on Dr Fabian's findings. Accepting those, he said that all the findings gave a constellation of signs which, in his view, were very typical of shaking injury. He said "the common understanding is that there is a constellation of features which taken together in their entirety point very strongly, if not convincingly, toward shaking as the common cause for all those features." He said that if you examine each individual feature there may be other explanations to be considered but when you have them all as a constellation, then it is a syndrome and the syndrome is the shaken baby syndrome. He said his understanding was that the degree of force required was vigorous, if not violent.
Importantly, Dr Cooke accepted that in medical literature there were dissenting voices in recent times. However, he said that the usual understanding was that the force required was vigorous, if not violent, shaking and that some studies suggested that impact was necessary. He also said there was nothing in the deceased's medical history or other medical findings at post‑mortem to suggest that the deceased had any pre‑existing coagulopathy.
His Honour found that Dr Cooke's evidence was important in supporting the conclusion that the deceased did not have a pre‑existing coagulopathy. He said that Dr Cooke had suggested that the shaken baby syndrome was a unifying concept which, as he expressed it, "brings everything together very neatly". His Honour said that in cross‑examination Dr Cooke had conceded that it was possible for relatively non‑violent shaking to have caused the constellation of injuries to the deceased. He said that Dr Cooke was not finally prepared to say that the deceased's death was due to violent shaking without impact. He was not prepared to go that far.
His Honour described Dr Fabian as a very highly qualified and skilled neuropathologist. Dr Fabian said that with respect to the brain she had found that there was widespread axonal injury. She was able to diagnose diffuse axonal injury which she said was consistent with traumatic causation.
Dr Fabian said that in order to cause the findings which were there, there must have been acceleration and deceleration of the brain. She found separate axonal injury in the cervical spine and subdural haemorrhages in the spinal cord which she said were traumatic in origin. The spinal cord haemorrhages and those in the neck indicated that the cord had been hyper‑extended or stretched. She said that there was extensive retinal haemorrhage within the superficial retinal layers and recent haemorrhage of the subdural space around the optic nerve. Dr Fabian said that the finding of bilateral retinal haemorrhages was a finding consistent with the eyes suffering from traction, consistent with a shaking motion or an acceleration/deceleration motion; that the retinal haemorrhages were unique to a traction injury and could not be explained by cardio‑pulmonary resuscitation. There were no signs of any pre‑existing coagulopathy.
In relation to the biomechanics necessary to cause the injuries she saw, Dr Fabian suggested that it would require repetitive, sustained motions of about 20 to 30 seconds and about 40 to 50 shakes. She said the paediatric literature indicated that it would require the sustained, repetitive, vigorous shaking of such a nature as to be recognisable as dangerous; that the striking of the deceased in the back in the course of cardio‑pulmonary resuscitation would not cause diffuse axonal injuries and certainly would not cause the neck injury and would not cause the rotational shearing of the retina; also that trivial injuries such as horseplay, accidents or falling off chairs could not account for the injuries. Even if there was coagulopathy, the inner superficial injuries to the retina could not be caused by anything other than traction. It was Dr Fabian's view that the only possible mechanism to cause all of the findings she identified was shaking.
His Honour said that he accepted Dr Fabian's evidence that the axonal spheroids in this case were traumatic in origin. However, he said the issue was whether the trauma was caused by a shaking of the deceased or by resuscitation attempts. A further issue was the degree of force used in the latter event. His Honour said it was important to note that Dr Fabian had been provided with very little information when given the specimens.
Dr Fabian conceded in cross‑examination that there is a school of thought in the neuropathology field that impact may be required to produce the injuries seen in this case, that is, the axonal injuries. Dr Fabian said she was unable to say whether sustained or violent shaking was required in order to cause the injuries she had seen in an unconscious infant.
His Honour remarked that it was to be recalled that the deceased was said to have been in a condition described as "floppy" after the seizure which the respondent had described and when the ambulance officers arrived at the respondent's house following the 000 call made by him.
Professor Hilton testified that he had commenced practice in forensic pathology in Western Australia in 1970. He was the chief forensic pathologist in the State in the mid‑80s and had held that position until he went to Sydney as associate professor of pathology at the University of Sydney in 1991. It was not in dispute that Professor Hilton was an eminent and highly qualified forensic pathologist with vast experience in the pathology field.
Professor Hilton had examined the documentation relating to the deceased and the post‑mortem photographs. He had access to the Princess Margaret Hospital records and the opportunity of reading the interview between the respondent and the detectives. He also had access to two academic papers authored by Dr Geddes and others which were published in the journal Brain in 2001. He also had access to an article from Paediatrics International by Fung and others entitled "Unexplained subdural haematoma in young children: Is it always child abuse?".
Professor Hilton accepted the clinical findings of Dr Fabian without reservation but took issue with the conclusions she drew from those findings.
Professor Hilton said:
"There are several confounding factors here. There are several confusing points. One is that this child not only had raised intra‑cranial pressure. It also at one stage had a documented coagulopathy which would tend to make any haemorrhage anywhere else worse. The second, and I think it is perhaps even more important, is the characteristics and distribution of retinal haemorrhages in association with the shaken baby syndrome. I think I heard Dr Cooke use the phrase 'the jury is still out on that' and I would agree with that. The last word certainly has not been written on retinal haemorrhages in association with child abuse of any sort. Nor has the final word been written with accounts of retinal haemorrhages in association with accidental injury, and perhaps not even with natural disease. It's a fairly rapidly evolving area of neuropathology."
When Professor Hilton was asked about the retinal haemorrhages and whether they were a consequence of vigorous or violent shaking, he said:
"Something had to start the process off and it may well have been some movement of the child's head which may have been shaking. What I have said and what I am saying - I will repeat it - is that I don't think there is enough unanimity of opinion as to whether these haemorrhages are of necessity associated with shaking, violent or otherwise, of themselves and that distribution or severity is pathognomic in any case and again we've got confounding factors in this case which may have altered the whole picture."
Professor Hilton said that the overall picture was consistent with, or suggestive of, the unsupported child's head moving with a degree of vigour which he could not quantitate in relation to the child's body. He said that on the evidence he had seen he could not say whether the coagulopathy predated the head injury. He said that the haemorrhaging could have been caused by the child's head moving backwards and forwards and the brain moving backwards and forwards within the skull, causing some of the small blood vessels to rupture and cause bleeding. He said that if there had been a pre‑existing coagulopathy that bleeding was likely to be more profuse, more prolonged or both.
His Honour said that Professor Hilton had described the constellation of injuries in this case as not being all of the constellation of injuries normally regarded as indicative of shaken baby syndrome. The Professor said that in this case there were no gliding contusions or corpus callosum haemorrhages. He said that in his view there were other things other than direct trauma which could have caused the axonal swellings observed by Dr Fabian. He was of the view that diffuse axonal damage was not confined to diffuse axonal injury and that there were things other than direct trauma which could have caused the axonal swellings. In particular, he said a stroke could produce such symptoms, as could ischaemic hypoxic encephalopathy. His view was that there were other causes than trauma which might have produced the findings.
His Honour said that he understood that Professor Hilton was not disputing Dr Fabian's findings but the conclusions which she said followed from those findings. Professor Hilton said he did not accept that trauma was necessarily the only possible cause. When asked about whether the injuries could have happened when the deceased's head was shaken in the course of the respondent's attempt at cardio‑pulmonary resuscitation when the deceased was being held by the respondent over the shoulder with the head unsupported whilst the respondent had struck the deceased's back with a fairly vigorous force in order to try and remove and an obstruction, Professor Hilton said:
"I think it was the perceived wisdom three years ago that it had to be very vigorous and in fact I was at a conference on shaken babies two years ago where extreme vigour was suggested as being required. I think particularly the later papers of Geddes, of which we have heard a fair bit, indicate that it is not necessarily so. It certainly is not necessarily so in all cases. I think again it comes back to that one size does not fit all."
Professor Hilton said that when a child was unconscious, the problem was accentuated because there was no neuromuscular control and no coordination. As a consequence, the child would tend to be floppy and incapable of control. In those circumstances he said he was unable to say what degree of force would be required to cause the findings but "it would logically be less than if the child was conscious".
When he was asked whether the only possible cause of the death of the deceased was prolonged and violent shaking, Professor Hilton said:
"I think that is not a - as a general proposition that is not tenable and I think it is highly suspect in any individual case unless there is a reliable witness."
His Honour said that as he had understood Professor Hilton's evidence, he was suggesting that unless a witness had seen the deceased being shaken or unless there was some medical evidence consistent with the child having been shaken, such as bruising or other external injury, or acceptable admissions, then to conclude that the deceased had died by being shaken in a prolonged or violent way was, as he expressed it, "highly suspect".
Professor Hilton said he thought there must have been a degree of vigour in the shaking of the head of the deceased but he could not quantitate that degree of vigour. He said that the fact that the deceased did not have damage to the corpus collosum and gliding contusions took the case away from the classical diffuse axonal injury referred to by academic authors and it lowered the degree of force necessary.
Professor Hilton said that his views had changed over the last three or four years because some neuropathologists and forensic pathologists had shifted away from the view that there had to be vigorous shaking to produce the so‑called shaken baby syndrome. He said:
"However, much more recent work has shown or at least has suggested, and there is observational basis for the suggestion, that much less vigorous movement can produce problems, particularly in the child's neck, that part of the nervous system that lies in the child's neck, which can then cascade onto a diffuse brain problem associated with lack of oxygen going to the brain."
He said there was a school of thought that much less vigorous movement than previously had been believed might be required to produce that sort of injury.
His Honour said:
"I accept Professor Hilton's evidence and I accept Professor Hilton as a highly qualified and very experienced pathologist with vast experience in the neuropathology field. Professor Hilton did not dispute Dr Fabian's clinical findings and as I have said, the difference between the evidence of Dr Fabian and Professor Hilton lies in the conclusions that can be drawn from the pathological findings. As will later become apparent, the question is not only which evidence should be accepted but importantly, whether the evidence which is accepted is sufficiently cogent to satisfy the Court beyond reasonable doubt that the deceased died from being shaken in the manner contended by the Crown."
A senior lecturer in pharmacology, Mr Langam, gave evidence that some of the medications prescribed for and taken by the deceased prior to his death as treatment for his respiratory illness could have had adverse effects. One of the drugs could have led to or contributed to a coagulopathy. Another drug was a long acting antihistamine which was used to induce vomiting and could lower the threshold for seizures. Mr Langam said that drug should not be used normally for children under the age of 2 years and a warning to that effect was contained in the publication called "Australian Drug Information for Health Professionals". It could cause convulsions and sudden death. His Honour said he accepted Mr Langam's evidence but it was not clear from his evidence the extent to which, if any, medications which the deceased was taking had caused or contributed to his death, although there was some potential for an adverse reaction.
The respondent said in evidence that his son may have swallowed something so he hit him in the back trying to dislodge whatever may have been obstructing his son's breathing. He said that he had given his son a tap and then a "whack" - a few whacks - with the lower part of his hand. He said those blows were struck immediately between the shoulder blades. He said he was "going crazy" because he thought he was watching his son dying so he was trying to dislodge anything that his son had lodged in his airway.
His Honour said he accepted that the respondent had been in a state of panic when he realised that his son's breathing had been compromised and that he had struck his son on the back a number of times with the heel of the palm of his hand with some degree of force in an attempt to dislodge what he thought may have been an obstruction in his son's airway.

Trial Judge's conclusions

It can be seen that the learned trial Judge accepted Professor Hilton's evidence and the fact that he was a highly qualified and very experienced pathologist with vast experience in the neuropathology field. The Judge also accepted the respondent's evidence to the degree stated above and took account of the evidence of the character witnesses, which suggested that the accused was a good parent and a non‑violent person.
In view of those conclusions, it would have been surprising if the learned Judge had found the respondent guilty of any offence, particularly as the Crown did not suggest that there had been criminal negligence by the infliction of blows to the deceased in the circumstances. As his Honour said, the Crown case was never put on that basis. His Honour said that had the trial been conducted on the basis that the deceased's death had been caused by or contributed to, by the blows on the back in the manner he had described, other issues might have arisen for consideration. However, the prosecution had expressly indicated that it did not present the prosecution on that basis.
His Honour referred to the evidence of the respondent's wife, who testified that the respondent was a very loving father and husband who always put his family first. She had testified that on 8 May the respondent had telephoned her and told her that the deceased had had a fit. He had asked her to come home quickly and she did so. His Honour said he had taken the respondent's good character into account.
His Honour said that in his opinion the evidence clearly established that the deceased had suffered a fibril fit. He had been given drugs which may have caused or contributed to the fit. His Honour accepted that the respondent had attempted to perform cardio‑pulmonary resuscitation on the deceased, initially by using his two fingers compressing his son's chest, and then by striking him on the back in the manner described. He said that the phone call made by the respondent had indicated that he was in a state of panic when the phone call was made and that it was not possible to determine with any precision either the number of blows or the force he used in the resuscitation attempt, beyond what had already been said. His Honour accepted that the injuries were traumatic in origin and that the blows administered by the respondent could have caused or contributed to the cascade of events which ultimately led to the death of the deceased. However he said he was unable to conclude beyond reasonable doubt that the death of the deceased was caused by the deceased being shaken by the accused in the manner alleged by the prosecution. Secondly, he said the evidence gave rise to considerable doubt as to whether shaking was the cause of the death of the deceased. It was for those reasons he found the respondent not guilty of both murder and manslaughter.

Appeal

It can be seen that if the evidence his Honour relied on was open to be accepted by him, there was ample evidence to justify his Honour's findings. At the hearing of the appeal the Crown formally abandoned grounds 3, 4 and 5.

Counsel for the Crown highlighted the fact that the Judge had found that the injuries seen after the child's death were not the result of hypoxic ischaemic encephalopathy, but were traumatic in origin. Further, that the learned Judge had accepted Dr Silberstein's evidence that the coagulopathy had occurred after severe brain injury.
A Crown submission was:
"Although there was some non‑expert evidence led during the course of the trial which included the accused man's video record of interview and subsequently his evidence - there were also a number of character witnesses who gave evidence and also the wife of the accused gave evidence. However, the Crown would say that this case is revolved around the opinions of experts who had dealt with the child in one way or another and the defence experts who were called during the course of the trial."
In my view, that submission is, with respect, incorrect because it devalues the evidence at the trial other than the medical evidence from the experts; also the medical evidence was to an extent dependent on the background facts.
Further, it was submitted for the Crown that:
"When one reads the decision of Scott J he, in effect - and, again I will go through the detail later, he, in effect, only took notice, if I can say that, of Professor or Dr Hilton".
Again, with respect, that is not the way I read his Honour's reasons for decision. What happened was, that having reviewed all the evidence, the Judge came to the opinion that it was not only possible but likely that the respondent had administered blows to the back of the deceased in an attempt to dislodge whatever was obstructing his son's breathing. Those blows could have caused or contributed to the cascade of events which ultimately led to the death of the deceased. In taking that view the learned Judge accepted in a large part the evidence of the respondent and the evidence called on his behalf.
His Honour came to the decision that he was unable to conclude beyond reasonable doubt that the death of the deceased was caused by the deceased being shaken by the accused in the manner alleged by the prosecution. He said:
"The evidence, which I have reviewed extensively in these reasons, gave rise to considerable doubt as to whether the shaking was the cause of the death of the deceased."
The main ground of appeal raised by the Crown was that Professor Hilton was not an expert in the area of neuropathology. Further, it was submitted that because the trial was a trial involving the opinion of experts, there was a need for the learned Judge to give himself a warning about competing expert evidence. It was submitted that a Judge in such circumstances must consider the expert evidence together with all the other circumstances he found proved. He must consider the quality, weight and use of the expert evidence. It was submitted that the learned Judge should have recorded that he had given himself the suggested warning because the matter of the expert evidence was so crucial. It was submitted that had the learned Judge applied the correct approach in considering all the evidence contrary to Professor Hilton's opinion, he would have arrived at a different decision; that the learned Judge had identified a trauma based on what the accused man had said "by being tapped a number of times on the back without bruising".
What the respondent said and what his Honour accepted was that the respondent "was in a state of panic when he realised that his son's breathing had been compromised and that he struck his son on the back a number of times with the heel of the palm of his hand with some degree of force in an attempt to dislodge what he thought may have been an obstruction in his son's airway."
The learned Judge said "I also took into account the character witnesses who were called on behalf of the accused who suggested that the accused was a good parent and a non‑violent person".
The Crown's approach was that the prosecution's expert evidence was objective, expert and independent. It was submitted that the presence of certain injuries in the eyes, the brain and the spine of the child indicated that the baby had been shaken.
The Crown's submission also was that Professor Hilton was not qualified to express the view he did which, as his Honour put it, was that unless a witness had seen the deceased being shaken or unless there was some medical evidence consistent with the child having been shaken, such as bruising or other external injury, or acceptable admissions, then to conclude that the deceased had died by being shaken in a prolonged or violent way was "highly suspect".
The Crown relied to a large extent on the evidence of Dr Fabian. She was a Fellow of the Faculty of Pathology of the South African College of Medicine and a Fellow of the Royal College of Pathologists of Australia in Neuropathology. Dr Fabian also had an associate neuropathology position at Princess Margaret Hospital, where she had been since 1997. The word "neuro" meant that she was concerned with the nervous system, the brain, the spinal cord and muscles and any diseases of anything to do with that. Dr Fabian had been sent specimens by a forensic pathologist to examine.
His Honour said that Professor Hilton had given evidence that at one stage he had been approached to apply for the position of neuropathologist at Royal Perth Hospital but had elected to continue to practise in the field of forensic pathology. Professor Hilton said that whilst he was not a neuropathologist he had firsthand knowledge, experience and insight into traumatic neuropathology.
His Honour said that in his view Professor Hilton was eminently qualified to testify in relation to neuropathology as indeed was Dr Fabian. In terms of qualifications and/or experience it was difficult to distinguish between the two. Professor Hilton, however, had vast experience in pathology.
It was submitted for the Crown that the learned Judge did not distinguish between pathology and neuropathology. Counsel for the Crown said he was not disputing that Professor Hilton knew about neuropathology.
Professor Hilton had said:
"As a forensic pathologist, traumatic neuropathology is a fairly integral part of the practise of forensic pathology. In addition to that, when I had the good fortune to live and practise in Perth I attended frequently at the Department of Neuropathology at Royal Perth Hospital. I used to in fact, do work for the Department of Neuropathology of Royal Perth Hospital and at one stage I came to one of those crossroads in life where I was approached to apply for the job as neuropathologist at Royal Perth Hospital, the job which I understand Dr Fabian probably does now. I elected to continue in forensic pathology. So, no, in the general sense I am not a neuropathologist but in a particular sense I have some firsthand knowledge, experience and insight into traumatic neuropathology".
The Crown submitted that the evidence of Professor Hilton did not qualify him as an expert in the area. Crown counsel did not dispute that Professor Hilton had some knowledge of neuropathology. What was disputed was that he was an expert capable of giving evidence about it.
When he was cross‑examined at the trial, Professor Hilton said that he had actually participated in the work of the Department of Neuropathology at Royal Perth Hospital. He was asked whether he would agree that Dr Fabian was in a better position than him. He made a comment about retinal haemorrhages and then said "No. Dr Fabian is a very good neuropathologist …".
It was put for the Crown that Professor Hilton was a very experienced pathologist who could understand the work of neuropathologists as "as a GP could understand the report of a specialist. That still did not make him a neuropathologist". It was conceded that Dr Fabian did not have any additional academic qualifications to those of Professor Hilton. However, she was a Fellow of the Royal College of Pathologists of Australia in Neuropathology.
Professor Hilton repeated in re‑examination that he had actively participated in the work of the Department of Neuropathology at Royal Perth Hospital when he was in hospital‑based pathology; also afterwards when he was occupying a position of forensic pathologist. He said his work in that area had been largely but not exclusively concerned with the examination of the brains and spinal cords, and sometimes peripheral nerves, of people who had died, including persons who had been referred to the Department of Neuropathology for examination. He had been doing "brain cuts on my own cases, other people's cases, for my own Department, and other cases referred in from other departments". Those examinations had been both microscopic and macroscopic.
Professor Hilton is a Bachelor of Medicine and Bachelor of Surgery, and a Fellow of the Royal College of Pathologists of Australasia. He is also a Fellow of the Australian College of Biomedical Scientists and of Legal Medicine and a member of the Royal Australian College of Medical Administrators. In addition he is a member of other learned bodies and a Fellow of the Royal Society of Medicine.
With respect to the second ground of appeal that the learned trial Judge erred in failing to give himself an expert evidence direction which was required, due to the conflict between the medical experts called by the Crown and Professor Hilton, the Crown cited the decision in Middleton v The Queen [2000] WASCA 213 (supra). In that decision Anderson J, with whom Kennedy and Wheeler JJ agreed, said:
"[21]The qualification competency of witnesses to give opinion evidence as an expert is primarily for the Court of trial as a question of fact. A Court of Appeal will be slow to reverse the decision to admit the evidence: Bratt v Western Airlines (1946) 166 ALR 1061 at 1067; Clark v Ryan (1960) 103 CLR 486 per Menzies J at 503."
I have carefully read Anderson J's reasons for judgment in Middleton and in my view there is nothing in those reasons which would throw doubt on the approach taken by the learned trial Judge in this case.
It is fundamental that the learned trial Judge would have considered the quality, weight and use of the expert evidence. However, it was submitted for the Crown that if the trial Judge had given himself "an expert evidence direction which was required in this case, given the conflict between the medical experts called by the Crown and Professor Hilton", he could not have possibly formed the views he did, because Dr Fabian's experience so outweighs Professor Hilton's; also there was other evidence given by other experts on the subject.
I repeat that it was not only the expert evidence which his Honour was considering, but all the evidence and circumstances surrounding the injuries of the deceased.
Crown counsel drew the Court's attention to evidence given by Professor Hilton in re‑examination concerning the degree of shaking without impact which could lead to serious injury or death in a child. Professor Hilton said:
"Had the question been put to me perhaps three or four years ago I would have given a different answer to what I give now. There has been a shift away from the concept which was fairly firmly held by most people working in this field, whether they be neuropathologists or forensic pathologists, that it had to be vigorous shaking to produce the effects of this so‑called shaken baby syndrome. That is not necessarily untrue to this day in some instances. However, much more recent work has shown, or at least has suggested, and there is observational basis for the suggestion, that much less vigorous movement can produce problems, particularly in the child's neck, that part of the nervous system that lies in the child's neck, which can then cascade onto a diffuse brain problem associated with lack of oxygen going to the brain.
…
It is suggested that this may be a stretching‑type phenomenon but in any event, whatever it is, it interferes with the respiration. The child then becomes hypoxic or anoxic and there is then a cascade of catastrophe thereon, leading to brain swelling, demonstrable axonal injury and death."
It was contended by the Crown that Professor Hilton could not say what degree of force was required to cause the symptoms which had been seen in the child, whereas other doctors could identify the degree of the force which, on their evidence, would have had to have been substantial. It was submitted that when Professor Hilton was saying he couldn't put a value on how much force was involved, that was not sufficient to raise a doubt in the learned Judge's mind.
Professor Hilton gave quite specific evidence in answer to the suggestion that the haemorrhages were a pointer to the child having been shaken; that one doctor had said shaken violently with considerable force. As already referred to above, Professor Hilton's comment was:
"I think it is carrying it too far to say that they are characteristic of anything. They are certainly, as I understand from Dr Fabian's report and from the examination of Dr Burvill, of a character which may well be associated and has been associated with what has unfortunately become to be known as the shaken baby syndrome. There are several confounding factors here. There are several confusing points. One is that this child not only had raised intracranial pressure, it also at one stage had a documented coagulopathy, which would tend to make any haemorrhage anywhere worse. The second thing and I think it is perhaps even more important, is the characteristics and distribution of retinal haemorrhages in association with the shaken baby syndrome - I think I heard Dr Cooke use the phrase 'the jury is still out on that' and I would agree with that.
…
What I have said and what I am saying - I will repeat it - is that I don't think there is enough unanimity of opinion as to whether these haemorrhages are of necessity associated with shaking, violent or otherwise, of themselves and that distribution or severity is pathognomonic in any case and again we have got confounding factors in this case which may have altered the whole picture.
…
What I am saying is that the overall picture is consistent with or suggestive of the unsupported child's head moving with a degree of vigour which I cannot quantitate vis a vis the child's body".
The Crown submitted that his Honour's finding could simply not be supported, therefore his Honour had erred. It was submitted that what Professor Hilton had been saying was "well, things change. That is all he was saying. Things do change." The Crown did not disagree with that either but in terms of the medical evidence, in terms of the evidence given by Dr Fabian, Dr Cooke, Dr Silberstein - they were quite definite as to what the current understanding is. All Professor Hilton had said was "well it changes".
An analysis of the evidence of Professor Hilton shows that he was saying much more than "well things change".
It was further submitted that Professor Hilton did not give specific evidence in relation to the child, sufficient to raise a doubt. He had accepted there was vigour. He had accepted there was trauma.
In my view the learned Judge was obviously aware of the Crown's submissions in this case. He was very familiar with what Professor Hilton had said in his evidence. Crown counsel accepted that Professor Hilton did claim expertise in the area of neuropathology.
It is important to note that Professor Hilton's evidence was not without support. Dr Cooke was asked:
"So I am asking you therefore, is your personal view that you would not be prepared to say that Cameron's death was due to violent shaking with or without impact? You would not be prepared to go that far?"
Dr Cooke answered "That's right".
Counsel for the Crown put the appellant's case in a nutshell when he said:
"… The Crown says it still comes back to the two questions: was he able to give that evidence in neuropathology and, having given it, should it be accepted when you balance up the weight of the other evidence. But the Crown still says that second direction was crucial …"
In essence, Professor Hilton's evidence was that he would not be prepared to accept that the violent shaking of the baby was the only answer to the injuries which were seen and that it would cause him disquiet to come to that conclusion.
Counsel for the Crown submitted that Professor Hilton should not have given the evidence which he gave and that his evidence was of such a nature as not to raise a doubt in the light of the other medical evidence. With respect to the other defence experts, the Crown submitted they had no impact because of the Judge's attitude to them.
That still leaves the character evidence and the evidence of the respondent. The Crown did not dispute that the respondent was a good father and a good husband. That was never an issue.

Result

In my view, the Crown's appeal should not be upheld. The trial Judge was very much aware of the effect of the evidence. He made no error of law or fact which could result in the appeal succeeding.
I would grant leave to appeal because the questions raised by the Crown, in my view, are of public interest. However, I would dismiss the appeal.
Because of the view I have taken, in my opinion it is not necessary for this Court to decide the questions arising from s 688(2)(ba) concerning what should happen if a Crown appeal did succeed. In R v Margaria & Anor (supra), Heenan J discussed in some detail the problems arising with a Crown appeal under s 688. Steytler and Parker JJ reserved their opinion on the matter as it was not then necessary to decide it. For the same reason I also would reserve any comments at this stage because they would be obiter.