R v Eketone

[1995] QCA 301

IN THE COURT OF APPEAL	[1995] QCA 301
SUPREME COURT OF QUEENSLAND

C.A. No. 170 OF 1995

Brisbane

Before Fitzgerald P.
McPherson J.A.
Demack J.

[R. v. Eketone]

T H E Q U E E N

v.

EDWARD EKETONE

(Appellant)

Fitzgerald P.
McPherson J.A.

Demack J.

Judgment delivered 11/07/95

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS	CRIMINAL LAW - MURDER - Whether blows inflicted on infant were intended to cause death or grievous bodily harm - Whether jury could rationally conclude that accused had intention to cause grievous bodily harm.
Counsel:	D. Lynch for the appellant D. Bullock for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent

Hearing Date: 22 June 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 11th day of July 1995

This is an appeal against conviction following a verdict of

guilty at a trial in the Supreme Court on a charge of murder.

The victim was a 20 month old girl, who was the child of the

woman with whom the appellant, then aged 37 years, was living at
the date of the child's death on 25 February 1994.

The child was brought to the Ipswich General Hospital by her

mother and the appellant at about 2.15 p.m. on 23 February 1994.
Those who attended to her there noticed that she was in a state
of reduced consciousness and that there was bruising on various
parts of her face, neck and elsewhere on her body. She was later

taken to Brisbane for specialist treatment but died at about 2.21

p.m. on 25 February 1994.

Post-mortem examination showed that the cause of death was subdural haemorrhaging resulting in ischaemia. Dr Tannenberg, a specialist neuropathologist, who examined the brain after death, found a large blood clot over the surface of the brain on the

left side. It was about 120 to 130 mls. in size, which he

described as "quite considerable". There was a small amount of

damage within the cervical spinal cord, which was consistent with

shaking. Asked about the events leading to death, Dr Tannenberg
said:

"The most likely sequence of events was a blow or blows to the head sufficient in force to produce rupture of veins on the surface of the brain. Subsequent to that the blood clot grew in size as the bleeding continued. This would have taken anything from half an hour to several hours to occur. Once the blood clot had reached a certain size and compressed the brain enough to produce the herniations, the child would have stopped breathing and at that stage the hypoxix - or lack of oxygen - brain damage occurred and subsequently the baby was identified as being clinically brain dead."

He was asked:

"At the time when the brain is damaged due to lack of oxygen and blood supply, at some point in the process does the infant become deeply unconscious? --- The infant could be deeply unconscious from the first blow to the head. The unconsciousness becomes more profound as the increased intra-cranial pressure elevates.

As the pressure elevates and if she was rendered unconscious by the blow, she wouldn't regain consciousness? --- No.

In cross-examination Dr Tannenberg said it was "possible"

for a subdural haematoma to be caused by shaking. When asked if

there was anything to suggest that the particular haematoma he

observed could not have been caused by shaking, he said:

"Yes. Firstly its site. The typical site for a subdural haematoma is - shaking is between the hemispheres. This was over one hemisphere. Over the left hemisphere. That's again kind of only statistically, I guess, more likely, but the massive size of the haemorrhage is really against shaking. The haemorrhage that one gets in shaking tends to be smaller, of the order of 10, 20, 30 mls. rather than a 120, 130.

There was evidence, in the form of admissions made in the course of electronically recorded police interviews with the appellant, that on the day before the child's admission to hospital, the appellant had used physical force against her. He

had been giving her "potty-training" and conceived the idea that

she was being unco-operative. When his efforts proved unavailing and she refused to eat food he had prepared for her, he became enraged and hit her. He struck her about the neck with a wooden handle of a mop; he pinched her vulva; and he hit her with his

hand. His account went on:

"I said eat your bloody lunch and she wouldn't, she wouldn't even eat her lunch, she just kept looking at me and my arm just went whack like that on the side of her head and she hit my leg, and I stepped around and I went whack again and she fell on the floor and she was crying and I told her to get up and eat her lunch. I said get up and eat your bloody lunch and she

wouldn't, so I just bent over and I smacked her again twice, I think, can't remember, and I picked her up and I threw her into her bed. I hit her very hard, I know I did, I know I hit her hard because it stung my hand, but she was crying and sobbing when she was lying in the bed."

There was ample evidence that it was the appellant who was responsible for the child's injuries and ensuing death. Indeed, if there is anything to be said in his favour, it is that he felt

great remorse at what he had done. When he realised the extent

of her injuries, he took her to the hospital, and he freely
confessed to having hit her.

The argument on appeal was confined to a submission that the

death was the outcome of an accumulation of minor blows and

injuries none of which had been intended to kill her or cause grievous bodily harm; and that the jury was therefore wrong in concluding that the appellant had had the requisite intent for murder. The fact is, however, that the evidence of Dr Tannenberg showed that a blow or blows to the head was the most likely cause of the fatal subdural haemorrhage; and, as he said, that the degree of force needed to inflict brain damage of that kind

"could have been anything from a major king hit with a closed fist to swinging the child from the feet into a solid object". He added: "Anything between those two extremes".

The extent of the brain injury discovered on post mortem examination was compelling evidence of the force used. It provided a basis from which a jury could rationally conclude that the degree of force employed by the appellant could only have

been such as to involve an intention on his part to cause

grievous bodily harm. It cannot be said that their conclusion to

that effect was not warranted, or unsafe or unsatisfactory. The

verdict of guilty of murder was a proper one.

The appeal against conviction must be dismissed.