R v Dempsey
[2000] VSC 528
•30 November 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1437 of 2000
| THE QUEEN |
| v. |
| BRENDAN ERIC DEMPSEY AND KATHLEEN LINDA DEMPSEY |
---
JUDGE: | HARPER, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 30 NOVEMBER 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 528 | |
---
CATCHWORDS: Ruling – Criminal trial – Application to exclude evidence relating to a broken leg suffered by deceased child after infliction of fatal injury – Failure to seek medical assistance – Relevance to accused's state of mind – Whether propensity evidence – Application refused.
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms. M. Sexton with Mr. J. Dowsley | Peter Wood, Solicitor for Public Prosecutions |
| For Brendan Dempsey | Mr. M. Bourke with Ms. T. Hartnett | Victoria Legal Aid |
| For Kathleen Dempsey | Mr. A. Lewis | Anthony Isaacs |
HIS HONOUR:
On 13 August 1998 beginning at about 9.30 a.m. An autopsy was performed on Bo Dylan Dempsey who had died the previous day. He was then 11 weeks old. The pathologist who performed the autopsy was Dr Shelley Robertson. She is a senior forensic pathologist at the Victorian Institute of Forensic Medicine.
According to her autopsy report, Dr Robertson found that the baby had suffered a severe injury to the head with skull fractures and an intracranial haemorrhage. He was small for his age and his gastrointestinal tract was relatively empty. Sections of his lungs showed early bronchopneumonic changes. He had a periorbital haematoma to the right eye and was wearing on his right leg a makeshift splint formed from two pieces of plastic ruler, some "stretch" bandaging and a safety pin. This splint was in the region of a fracture of the baby's femur. There were indications of dehydration and poor feeding.
The cause of death is recorded by Dr Robertson as a head injury with the fractured femur as a contributing factor. The head injury had, as the report records it, been sustained some days, probably later than seven, before death. The broken femur had been sustained, according to Dr Robertson, some shorter period, probably three to four days, before the baby died.
The depositional papers disclosed that two other medical practitioners agree with the conclusions to which Dr Robertson has come. Dr Morris Odell, a physician who specialises in the assessment and treatment of victims of child abuse, states in a report dated 2 December 1998 under the letterhead of The Victorian Institute of Forensic Medicine (where he holds the position of forensic physician) that the head injury described by Dr Robertson was of considerable severity, the result of the application of severe force and not likely to have been sustained by someone accidentally sitting on Bo Dylan's head or from an accidental fall. The injury would have caused the child distress and a readily observable alteration in his conscious state; and this in turn would have included drowsiness and inability in feeding. In these circumstances it is Dr Odell's opinion that any failure by the adult or adults responsible for the care of the child to seek "urgent medical attention" would be "difficult to comprehend".
Dr Odell also noted that the femur is the strongest and heaviest bone in the body and not subject to fracture as a result of a trivial injury. Any injury such as that suffered by Bo Dylan "would have been intensely painful, although this may have been masked by the decreased conscious level from the head injury". Dr Odell's report continues, "the splint applied to the broken leg was completely inappropriate and inadequate and cannot under any circumstances be considered to be appropriate medical treatment. The injuries seen in this child are highly unlikely to have been sustained in an accidental manner. The lack of medical attention for the head injury and the inappropriate treatment of the leg injury are not consistent with proper care and constitute neglect of a child at a time when it had an acute and urgent requirement for essential medical treatment".
The third medical practitioner of present relevance is Mr Jeffrey Rosenfeld. He is the Director of the Department of Neurosurgery at the Royal Children's Hospital. In a report dated 15 July 1999 he said, among other things:
"I agree that the head injury was more likely the result of a blow to the head rather than a compression type injury. I agree ... that the child would not have appeared normal and would not have been feeding adequately with his injuries. The poor feeding, early bronchopneumonia and dehydration were also of relevance in terms of adequacy of care of the infant prior to death
The most likely direct cause of death was related to complications of severe head injury and generally inadequate care. The fractured femur would also have caused some degree of hypovolemia and anemia and contributed to the death. Inadequate and varying explanations as to the causation of the head injury and the fractured femur are provided ... The trivial slippage described in the direct evidence to the police is totally inadequate to explain the injuries. The child falling from its father's arm on to concrete could possibly have caused such a head injury, but this is unlikely ... I favour the explanation that a direct blow or blows were the cause of the brain injury ...
The child was provided with inadequate care following the head injury and the limb fracture and there is evidence of poor general care of the child. There [is a] strong likelihood that the head injury was caused by direct assault.
This child may have survived the injuries had he been presented at hospital immediately following the head injury. This would have prevented the femur fracture as well. The nature of his head injury was likely survivable if it had been treated in the early stages."
This was the gist of the medical evidence available to the police when Bo Dylan's parents were arrested on 5 August 1999, almost one year after Bo Dylan's death. It remains as the gist of the medical evidence available to me.
Mr Dempsey, facing a charge of murder, seeks to have me exclude from the consideration of the jury the medical and other evidence going to the injury to the baby's leg. Mrs Dempsey, facing a separate trial on a charge of manslaughter, makes the same application. In each case the Crown takes the contrary position.
It was submitted by Ms Sexton, leading counsel for the prosecution, that the injury to the leg forms part of the matrix of facts surrounding the death of Bo Dylan. It is also, she submits, a constituent part or element in the relationship between Brendan Dempsey and his son; and evidence of that relationship is relevant to the question of the responsibility for the head injuries which, on any view, were the principal reason why Bo Dylan died. In addition, the leg injury contributed to the baby's death. Finally, as Ms Sexton submitted, Mr Dempsey's behaviour after that injury was suffered by his son is indicative of a man who is conscious that he is to blame for the injury to Bo Dylan's head. This point is relevant not only as going to the intent which the Crown must prove (and prove beyond reasonable doubt) as an element in the crime of murder, but also as going to the alternative count of manslaughter. While the Crown does not contend that Mrs Dempsey was guilty of more than a criminal failure to take action which would have prevented Bo Dylan's head injury being fatal, Mr Dempsey is alleged to have been actively involved in the infliction on Bo Dylan of that injury.
In my opinion, evidence about the leg injury and the circumstances in which it occurred is admissible against Mr Dempsey. He knew that it was a serious injury. He made an amateurish attempt to administer to it by the application of an inadequate if not useless splint. There is evidence that he sought to exclude his wife from this aspect of Bo Dylan's care. There is also evidence that he had the means and ability to obtain medical attention for his son. It is not in dispute that no medical attention was obtained until after death.
It is not yet known how Mr Dempsey will seek to meet the Crown case. He may accept that his failure to obtain adequate treatment for his son's fractured skull amounted to negligence for which he is criminally liable. There is no suggestion, however, that he accepts any responsibility for the trauma inflicted upon his son's head other than that it was accidental and occurred while Bo Dylan was in his immediate care.
In these circumstances the failure to seek medical treatment following that trauma demands an explanation. The Crown seeks to put such an explanation forward. The failure to go to the doctors is, according to the prosecution, explicable, and only explicable, on the basis that this was no mere accident. It was a case of the direct infliction of harm on the head of the baby by the baby's father. Why else, the Crown submits, would the father not seek medical treatment for Bo Dylan after his leg was broken? This was obviously an injury which demanded proper medical attention. Mr Dempsey must have known it required such a response. The only explanation for his failure to seek it, the Crown would submit, is his knowledge that his part in the infliction of the injuries to Bo Dylan's head would thereby be exposed.
The relevant evidence does not in these circumstances fall into the category of propensity evidence. Nor does it do so in relation to Mrs Dempsey, although in each case its tendency is such that the jury must be instructed that they must not use it as propensity evidence. It is admissible against Mrs Dempsey not because it shows that she is the kind of person who is likely to neglect her children, but because, if accepted, it shows that on this occasion at a time when her son was severely brain damaged she sought medical attention for neither that problem nor the leg injury. This is so, the Crown case would have it, not because she was ill or because she was not aware of Bo Dylan's severely injured head; it was because she was criminally negligent. That point is made, according to this line of reasoning, because she failed to take her son to the doctors after his leg injury, even though she was then well enough to do such things as travel into Mount Beauty; in other words (to put the prosecution argument in another way) if she did not seek treatment for the head injury then, the only realistic explanation for her not seeking such treatment at a time when it might have saved Bo Dylan's life is that she is guilty of the crime of which she is charged.
In my opinion, given the background circumstances I have outlined, the Crown is entitled to put before the jury the evidence of the broken leg. If it were not, the prosecution would not fairly be able to meet the cases which the accused may well seek to mount.
---
0
0
0