R v Few (No 2)
[2013] NSWSC 1771
•08 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v FEW (No 2) [2013] NSWSC 1771 Hearing dates: 8-11/10/2013; 14-16/10/2013; 21-25/10/2013; 29/10-1/11/2013 Decision date: 08 November 2013 Before: Fullerton J Decision: Not guilty verdict
Catchwords: CRIMINAL LAW - judge alone trial - murder - child victim Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Criminal Procedure Act 1986Cases Cited: Edwards v R [1993] HCA 63; 178 CLR 193
R v FEW [2013] NSWSC 1486
Shepherd v R [1990] HCA 56 HCA; 170 CLR 573Texts Cited: - Agrawal S et al, "Prevalence of Retinal Haemorrhages in Critically Ill Children" (2012) 129(6) Pediatrics
- Chadwick DL et al, "Annual Risk of Death Resulting From Short Falls Among Young Children: Less Than 1 in 1 Million" (2008) 121(6) Pediatrics 1213-1224
- Ehsani JP et al, "The Role of Epidemiology in Determining If a Simple Short Fall Can Cause fatal Head Injury in an Infant" (2010) 31(3) The American Journal of Forensic Medicine and Pathology 287-298
- Loyd AM, "Studies of the Human Head from Neonate to Adult: An Inertial, Geometrical and Structural Analysis with Comparisons to the ATD Head" (2011) PhD Thesis, Department of Biomedical Engineering, Duke University, North Carolina, USA
- Plunkett J, "Fatal Pediatric Head Injuries Caused by Short-Distance Falls" (2001) 22(1) The American Journal of Forensic Medicine and Pathology 1-12
- Reiber G, "Fatal Falls in Childhood: How Far Must Children Fall to Sustain Fatal Head Injury?" (1993) 14(3) The American Journal of Forensic Medicine and Pathology 201-207
- Viano DC and Parenteau CS, "Analysis of Head Impacts Causing Neck Compression Injury (2008) 9 Traffic Injury Prevention 144-152Category: Principal judgment Parties: The Crown
FEW (Accused)Representation: Counsel:
J McLennan (Crown)
D Yehia SC/C Feiner (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Blair Criminal Lawyers (Accused)
File Number(s): 2011/247992 Publication restriction: Non-publication order on the names of the victim, the victim's mother and the accused.
Judgment
FULLERTON J: JP died on 1 April 2011 from a head injury she sustained on 30 March 2011 whilst she was in the sole care of the accused at his home in Coffs Harbour. The accused lived alone. The child was aged 2½ at the time of her death. The accused was not related to the child but had an established relationship with her as a de facto grandparent.
The head injury comprised a linear fracture at the base of the skull with associated bilateral subdural haemorrhages and brain swelling. Bilateral multi-layered retinal hemorrhages were also identified.
On 1 August 2011, at the culmination of the police investigation into the child's death, the accused was charged with her murder.
On 8 October 2013 the accused was arraigned before me and entered a plea of not guilty. The trial was conducted without a jury in accordance with s 132 of the Criminal Procedure Act 1986.
The trial commenced in Coffs Harbour where evidence was called from thirteen witnesses, inclusive of the child's mother (BJP), grandmother (RW) and great grandmother (LP). These witnesses gave evidence of seeing the child in the days, weeks and months preceding her death while she was both in the sole care of her mother and, after her mother had placed the child in the care of the accused, in his sole care. Paul Harmey, the ambulance officer who transported the child from the accused's home to Coffs Harbour Hospital on 30 March, and Dr Robertson, who treated her on admission before she was conveyed to Westmead Hospital that night where she later died, also gave evidence in Coffs Harbour. They both noted bruising to the child's forehead unrelated to what later proved to be the fatal head injury. Additional sites of bruising, both to the forehead and other areas of the child's body, were identified when the child was examined by Dr Norrie at the Children's Hospital at Westmead on 31 March 2011. Save only for the bruising to the child's right ear, all areas of secondary bruising were confirmed on autopsy. The autopsy also identified additional extensive bruising to the scalp, not associated with the skull fracture. (These injuries were referred to at trial collectively as "the secondary injuries".)
The trial resumed in Sydney on 21 October 2013 where evidence was called by both the Crown and the accused from a number of expert witnesses in forensic medicine, paediatrics and biomechanical engineering.
The accused did not give evidence. He relied upon two electronically recorded interviews with police in which he claimed that the child's head injury must have been sustained when she fell from her pram while he was in the toilet. He also relied upon a walkthrough interview at his home where he reconstructed the scene of the accident. He denied deliberately inflicting any of the secondary injuries or seeing anyone else injuring the child.
The Crown case in summary
In order to convict the accused of murder I must be satisfied beyond reasonable doubt that it was the deliberate act of the accused which caused the death of the child, and that the act was accompanied by an intention to kill or to inflict grievous bodily harm. In this case, the Crown alleged that the fatal head injury was deliberately inflicted by the accused, and that the location of the skull fracture and the complex of associated head injuries are such that I would be satisfied, beyond reasonable doubt, that at the time of the assault the accused intended to kill the child or to inflict grievous bodily harm.
The Crown is unable to appoint the precise mechanism which caused the fatal head injury. The results of autopsy do not discriminate between the skull fracture being the result of a direct blow to the back of the head by the accused's fist or by an object wielded by him, or as a result of the child being thrown or deliberately dropped from some height, with the back of her head striking a hard surface and fracturing in the process. In addition, the Crown cannot appoint the location in the accused's home where the child was fatally assaulted. A crime scene search warrant executed on 31 March 2011 did not produce any relevant scientific evidence.
On the Crown case, the time at which the fatal injury was inflicted is able to be appointed with reasonable certainty. At 10.01am the child was seen in the accused's care in a local chemist sitting upright in her pram and capable of responsive movement and, within a minute or so of 10.21am, she was seen by her mother and her mother's boyfriend in a severely compromised state of orientation and consciousness lying on the couch in the accused's living room after they arrived in response to the accused's telephone call claiming that there had been an accident. The expert medical witnesses all agreed that whatever might have been the explanation for the child being observed by a pharmacy assistant to be sad and perhaps unwell in the chemist at 10.01am, she could not at that time have sustained the skull fracture, or any of the associated intracranial bleeding first revealed on the CT scan performed at Coffs Harbour Hospital following her admission two hours later.
It was the Crown case that after returning from the chemist at about 10.10am the accused assaulted the child with sufficient force to fracture her skull and render her unconscious or semi-conscious. It was also the Crown case that before he telephoned the child's mother at 10.21am the accused deliberately positioned the pram on its side, near the tiled foyer of his home unit, to give the pretence of the scene of an accident, and that he reconstructed that same scene in the course of a walkthrough with police conducted on 2 April 2011 for the same reason.
The Crown submitted that the postulated but unwitnessed fall from the pram was false and demonstrably so. The Crown also submitted that the accused gave a deliberately false account to police of his movements on the morning of 30 March 2011 when he was first interviewed on 1 April 2011, an account which he repeated in the walkthrough on 2 April 2011 and in a further recorded interview on 3 April 2011. According to the Crown, the falsity of that account was exemplified by the fact that the accused made no reference to leaving the house on the morning of 30 March to collect a prescription for anti-anxiety medication from the chemist, or that he had telephoned his doctor at 9.46am asking for the medication as a matter of urgency because, as he claimed to his doctor, "Something terrible [had] happened". Instead, the accused consistently asserted in his various interviews with police that the morning of 30 March was a "routine" morning at home with the child until she fell from the pram. The Crown submitted that the accused's lies were motivated by a consciousness of guilt, there being no other reasonable explanation for his failure to give a complete and honest account of his movements on the morning of 30 March in the course of what he knew was a police investigation into the child's death.
The Crown submitted that the accused's account of an accidental fall from the pram is not only inherently implausible but the time at which he claimed the accident occurred (namely, while the child's preferred television programs were screening - a claim repeatedly detailed and described by him to police) has been shown by the evidence led at trial to be objectively false. The timetable of televised children's programs, variously nominated by the accused as being those the child was watching immediately before the fall, were all screened between 8.15am and 9.23am - before the child left the house with the accused to go to the chemist.
The Crown also relied upon the multiple sites of secondary bruising to various parts of the child's body in further support of the Crown case that the fatal head injury was not an accidental injury but an inflicted injury. These secondary areas of bruising included extensive bruising to the scalp (revealed when the scalp was reflected at autopsy) with maximal involvement of large areas of the forehead anteriorly and the posterior aspect on the left side of the head; bilateral bruising to the ears; bruising to both buttocks (predominantly involving the left buttock with the grouping of the bruises resembling a handprint) and an area of bruising on the left thigh posteriorly (either incorporated as part of the handprint or a separate site of trauma) which, on dissection revealed bruising passing through the fat to the level of the musculature.
On the Crown case none of the secondary injuries were consistent with, or might reasonably be viewed as being consistent with, the postulated fall from the pram. Viewed as a constellation of injuries, the Crown submitted that they could not be explained by any other accidental cause. The Crown relied upon the evidence from the child's mother and her boyfriend (LB), and to a lesser extent the child's grandmother and great grandmother, to the effect that in the days preceding 30 March the child was not unwell and they saw no other bruises or signs of injury other than a bruise to her left temple from knocking into a hall table and a small bruise to her thigh. It was the Crown case that the bruising to the child's ears; the extensive bruising to her forehead; the patterned bruising to her buttocks and the deep and diffuse bruising to her thigh were also deliberately inflicted by the accused, some of which may have been inflicted in the course of the fatal assault but all of which were inflicted some time after 5pm on 29 March when she was last seen by her mother and her mother's boyfriend in good health and spirits at the accused's home.
The accused's case in summary
The accused denied deliberately harming the child in any way. So far as the child's head injury was concerned, it was his case at trial, consistent with his account to police, that the child must have climbed, or attempted to climb into or onto her pram and, in the process, fallen backwards, striking the back of her head on the tiled floor in the front foyer of his home. The accused told police that he did not see the fall but he heard a crashing sound while he was in the toilet and, upon rushing out, found the child lying on her back on the tiles. He said he picked her up and carried her to the couch in a semi-conscious state and immediately telephoned her mother.
It was the accused's case, again consistent with what he told police, that the child had bruised her forehead in the left temple area when she ran into a small hall table some days before 30 March (an event he said was witnessed by the child's mother and which she confirmed in her evidence) and, on another occasion, that she had stumbled over or fallen upon some toys which may have explained the bruise on her thigh. He said that there were areas of redness in her ears from insect bites. He also told police that the child had left his home in the company of her mother and LB for two hours on the afternoon of 29 March and that when she returned she was quiet and seemed unwell. He said he saw an area of redness on her right thigh when he changed her for bed that night.
In so far as the Crown relied upon the secondary injuries to reinforce the Crown case that the fatal injury was not accidental but inflicted, Ms Yehia, senior counsel for the accused, submitted that the Crown has not excluded the reasonable possibility that at least some of the secondary injuries were capable of being explained by accidental causes and, for that reason, I would discount those sites of injury as having any bearing on the issues at trial. She also submitted that of the secondary injuries that were not readily or reasonably explained as the result of accident, (in particular the bilateral bruising to the ears and the deep patterned bruising to the buttocks) there remained a real and pervasive doubt as to the identity of the person or people who inflicted them. In that connection, she submitted that I would reject as untrue aspects of the evidence of the child's mother and her boyfriend, in particular, their evidence that they did not have the child in their sole care and custody for some hours on the afternoon of 29 March as the accused claimed in his interview with police. She submitted that the evidence of the child's mother generally lacked weight and that I would be left with concerns as to her credit. Ms Yehia submitted that the delay of over an hour before the child's mother called the ambulance when, on any view, it was obvious that her daughter was seriously ill, coupled with a series of unexplained phone calls to her mother within that hour, is consistent with a desire on her part to conceal the child's inflicted injuries from the authorities, perhaps in the hope that the head injury, which she believed to have been the result of the fall, was not serious.
Ms Yehia relied upon the proven tendency of the child's mother to inflict serious violence on her own invalid mother, as tending to prove her violent disposition when triggered by stressors of various kinds. She also submitted that the personal circumstances of the child's mother in the weeks preceding the child's death (including leaving her in the care of the accused for three weeks in order to cement a relationship with a new boyfriend with a view to moving to Brisbane to live with him) raised a real doubt as to the identity of the person who inflicted the secondary injuries, thereby undermining the Crown case that it was the accused who inflicted the fatal injury.
A summary of the competing submissions on the question whether a short distance fall can account for the fatal injury
The Crown submitted the combined weight of the medical evidence as to the severity of the head injury, including the site of the skull fracture in the occiput, to the effect that it was unlikely to have been occasioned in a short distance fall; the identification of bilateral retinal haemorrhages; the design and dimension of the pram; the height of the child and the location of the pram relative to where the accused claimed to police he found the child on the tiles in the foyer, combine to exclude the reasonable possibility that the child died as the result of an accident.
Ultimately, the Crown submitted that with the reasonable possibility of accident discounted and, in the absence of any other reasonable hypothesis for the child having suffered the fatal injury consistent with the innocence of the accused, I would return a verdict of guilty.
Ms Yehia submitted that not only was the postulated fall from the child's pram capable of producing a head injury of the kind revealed at post-mortem from a biomechanical perspective as attested to by Professor Pandy, but that each of the three expert medical witnesses called by the Crown, Drs Norrie, Duflou and Moran, conceded that it was possible that the fatal head injury was sustained in a short distance fall of the postulated kind, albeit that it was unlikely. Ms Yehia acknowledged that a fatal head injury resulting from a child falling a short distance was reported in the literature as a rare occurrence. She also acknowledged that the epidemiological studies referred to extensively in the literature, and drawn upon by each of the medical witnesses as contributing to the opinions they expressed that an accidental fall was a possible but unlikely cause of this child's death, was an approach reasonably open to them as experts in their field. She submitted however, that after reviewing all the evidence (including the accused's account to police and his demonstrated love and affection for the child, as attested to by all members of the child's family), I would be compelled to the conclusion that an accidental fall of the kind postulated is a reasonably possible explanation for this child's death and one that the Crown cannot discount beyond reasonable doubt. For that reason, she submitted I would return a verdict of not guilty.
Ms Yehia submitted that the accused's account of the incident, given for the first time within minutes of the child being injured, and maintained thereafter in the course of sustained questioning over many days, was coherent and consistent. Save only for failing to account for his visit to the chemist in his account of the morning of 30 March, Ms Yehia submitted that there was nothing in the accused's demeanour in the face of police questioning or the answers he provided which gave any support to the Crown case. In so far as concerned the lies relied upon by the Crown, Ms Yehia submitted that I would not be satisfied that the only explanation for his failing to tell police that he had called his doctor and had left the house to go to the chemist was because he knew he had killed the child and needed to conceal that fact, and that I could not rely upon that lie (or those lies) to infer guilt in those circumstances (see Edwards v R [1993] HCA 63; 178 CLR 193 at 201).
Ms Yehia submitted that the Crown case, which timed the fatal assault at some time between approximately 10.10am and 10.21am (allowing about ten minutes for the accused to return to his home from the chemist), simply could not, in any rational way, account for the accused being seen at 10.01am in the chemist with the child and the relative normalcy of that encounter. She submitted that it defies commonsense that the accused would have inflicted some non-fatal, but nonetheless serious injuries to the child that morning sufficient to raise his anxiety levels to the extent that he was prompted to call his doctor at 9.46am for an urgent issue of a prescription for anti-anxiety medication (the explanation advanced by the Crown for his call to the doctor), and then to have taken the injured child with him to the chemist to collect the medication, with the obvious risk of her vocally complaining that the accused had hit her and hurt her, or that her injuries would be noticed and the subject of remark or inquiry. She also submitted that attaching the raincover to the pram (the evidence at trial being that the weather that morning was very cloudy with showers) was entirely consistent with the overwhelming weight of the otherwise uncontradicted evidence to the effect that the accused was a responsible and loving carer, and wholly inconsistent with him having assaulted the child before going to the chemist, sufficient to cause the secondary injuries, and then fatally assaulting her within minutes of his return.
Ms Yehia further submitted that the Crown could point to nothing in what others observed of the accused's treatment of the child whilst she was in his care in the days immediately preceding 30 March, or on other occasions over the three weeks before that day, that might shed any light on what might have caused him to assault the child, inflicting multiple injuries to her head (one fatal), and to her torso and limbs in what the medical evidence suggested must have been at least two episodes of serious and unrestrained violence.
Ms Yehia submitted that the accused's demonstrated love and concern for the child was confirmed by the candid and recorded interactions with the child on his mobile phone which were exhibited at the trial. This, she submitted, in itself raises a doubt as to whether the Crown has proved its case of murder. She submitted that the Crown's description of the accused in final submissions as a man under financial, physical and emotional pressure, such as to render him capable of explosive and episodic violence on 30 March, was without any evidentiary foundation and was nothing more than a strained attempt by the Crown to explain the inexplicable and I would not be persuaded of the Crown's submission for that reason. She submitted that when the accused's proven demeanour and behaviour is coupled with an accidental fall being a possible explanation for the fatal injury, the Crown has failed to discharge the onus of proving the accused's guilt beyond reasonable doubt and he should be acquitted.
The issues raised by the evidence
The evidence led at trial over thirteen hearing days was detailed and in parts both complex and perturbing. That said, a number of issues ultimately crystallised as critical to the question whether the Crown had proved the guilt of the accused beyond reasonable doubt. They included the following:
(i) Whether the Crown had discounted the reasonable possibility that the injuries which caused the death of the child were sustained accidentally?
(ii) Whether, in considering that question, I am entitled to take into account any or all of the secondary areas of bruising revealed on pre-mortem and post-mortem examination and, if so, whether I must be satisfied beyond reasonable doubt that those injuries were deliberately inflicted, and deliberately inflicted by the accused, before they could support a finding that the fatal injury was inflicted? In considering that question, what weight should I give to the tendency evidence led by the accused concerning the child's mother and, in addition, what is the impact, if any, of concerns more generally about the credibility of the child's mother and the child's grandmother?
(iii) Further, in addition to, or as an alternative to the question whether I am satisfied that the accused was responsible for the infliction of the secondary injuries, whether I am entitled to take the accused's lies to police as evidence of a consciousness of his guilt of the crime charged in considering whether the Crown has discounted the reasonable possibility of accident as an explanation for the fatal injury?
(iv) If, having regard to the combined weight of all of the evidence legitimately able to be taken into account on the question of guilt, I am satisfied that the Crown has discounted the reasonable possibility of accident (either because the medical evidence renders that explanation so unlikely that it is discounted as a reasonable possibility, or even were the combined weight of the medical evidence such as to allow for an accidental cause as a possible explanation for the fatal head injury, the other evidence in the Crown case, and the inferences legitimately drawn from that evidence, compel the conclusion that the injury was deliberately inflicted), has the Crown discounted any other alternate hypothesis inconsistent with the guilt of the accused?
(v) In the event that the Crown has proved beyond reasonable doubt that it was the deliberate act of the accused that caused the death of the child, has the Crown proved beyond reasonable doubt that the act causing death was done with an intention to kill the child or inflict grievous bodily harm? It was no part of the Crown case that the accused's intentional act was done with reckless indifference to human life?
Family relationships
The child's mother, BJP, was aged 17 at the time of the child's birth in September 2008. She was at that time in a relationship with the child's father. At the end of November 2010 she terminated that relationship. The relationship was unstable and had been marred by abuse for some time. There was, however, no evidence that the child was the victim of any physical abuse from either of her parents whilst they were together.
In 2007 BJP's mother, RW, formed a relationship with the accused. There was a time where she and the accused were engaged. They remained friends after the engagement was broken. RW said that when her granddaughter was born the accused occupied a significant role in the family and was spending a great deal of time with them.
RW gave evidence that BJP looked upon the accused as a stepfather figure as she had not known her biological father. She said that when BJP ended her relationship with the child's father, it was a difficult time as she was divorced and BJP had no father figure. RW said:
...she turned to [the accused] as a father figure because she needed that supportive protection.
BJP gave evidence that the accused was always there for her and that she looked up to him.
BJP stated that whilst her family (including her mother, grandmother and the accused) would help her with her daughter, she was the main caregiver. She was not pressed as to how, and with what support she was able to maintain that level of care given the instability in her housing situation and the fact that by the end of 2010 she was effectively a single mother in her late teens, or how she dealt with the pressures and stresses inherent in being the sole parent of a toddler after surviving an abusive relationship with the child's father.
In early December 2010, on referral by RW, the child and her mother were accommodated at the Warrina Women and Children's Refuge at Coffs Harbour. Whilst a resident at Warrina Refuge, at least until mid February 2011, the child attended the Caterpillar House Occasional Child Care Centre, also in Coffs Harbour, on eight occasions pursuant to an arrangement with Warrina Refuge.
BJP gave evidence that the child attended day care approximately three days a week, roughly from 9am until 3pm. The evidence from Rosemary Franks, director of Caterpillar House, was that the child attended on the following three days in 2010: 8 December for 4 hours, 10 December for 7 hours, 15 December for 6.5 hours. She attended on the following five days in 2011: 11 January for 6 hours and 4, 9, 16 and 18 February for 5 hours each day.
In early 2011 BJP met LB, the brother of her best friend, and commenced a relationship with him. She said that her relationship with him developed quickly, and from the beginning of February 2011 to the end of March 2011 they spent most days together.
BJP gave evidence that her daughter had a good rapport with her new boyfriend, and that he was willing to take her on as his daughter. In his evidence, LB said that the child "had a smile that could light up your day" and that he fell in love with her the first time he met her. He said that his feelings towards the child were reciprocated.
According to the child's mother, because LB and her daughter were building a strong relationship and LB lived in Brisbane, she decided they should move to Brisbane. She said because she wanted to see if Brisbane was a suitable environment for her daughter, she decided to go to Brisbane with LB and leave the child in the accused's care. BJP and LB left for Brisbane on 2 March 2011 and did not return to Coffs Harbour until 21 March.
BJP said that her daughter loved the accused as much as she did, and that the child would call him "Poppy", whilst the accused would call her "Peanut". This was confirmed by RW in her evidence. LB gave similar evidence and said that the accused was like a father to BJP, and that the child called the accused "Poppy". LB also stated that when he observed interaction between the accused and the child he noticed that the child adored the accused, and the accused was very loving towards her. Whilst the accused was considered to be part of the family and spent a substantial amount of time with them, he had not looked after the child overnight until 2 March 2011 when she was left in his sole care.
BJP gave evidence that because of her mother's disability (she had been suffering from multiple sclerosis for many years and was confined to a wheelchair), and because her mother was scheduled to have surgery in March 2011, the accused was the most suitable person to care for the child whilst she was in Brisbane. RW confirmed that she was admitted to Coffs Harbour Hospital on 17 February 2011 for back pain, and then from 5 March to 15 March she was admitted to the Royal North Shore Hospital for surgery. From 15 March to 23 March she was again admitted to Coffs Harbour Hospital.
During cross-examination, BJP confirmed that some time before she went to Brisbane she terminated the lease at Warrina Refuge and was living in between RW's residence and LB's father's residence. She further confirmed that LB's father told her she could not stay there any more because the child's crying upset him. She confirmed that after she returned from Brisbane the accused invited her to stay with him, however she decided to leave the child in his care and to stay with LB at her mother's home as "it was easier for all involved".
The child's general health prior to being placed in the sole care of the accused on 2 March 2011
The evidence from a number of medical and lay witnesses in Coffs Harbour was to the combined effect that the child was considered to be developmentally normal and in general good health, without any history to suggest she might bruise or fracture more easily than other children.
Dr Bedford
Dr Bedford is a medical practitioner with approximately 25 years experience. He was one of the child's treating practitioners. From his clinical notes, Dr Bedford confirmed that he saw the child on 27 April 2009, 31 August 2009, 13 October 2009 and 20 December 2010. He gave the following evidence:
The child always appeared to me...from my recollection, of just a pretty developing child and I had no reason or I would have reported the child if I'd had concerns if there'd been any signs of injury or anything that had sort of prompted alarm bells.
So far as is material to the issues at trial, on 20 December 2010 he said the child attended the Medical Centre with BJP presenting with a history suggestive of an upper respiratory chest infection of a viral origin. He gave evidence that, "the child looked well, ... basically was on a great weight for its age ... [and] appeared a happy, pretty little girl". Upon examination he recommended treatment for a viral infection. He said that at the end of the consultation the child's mother told him that the child was "veering off to the left" and would "run into walls". He considered that might be a feature of her chest infection. He recommended that the child have a CT scan if the unsteadiness persisted. He said, however, he was able to discern no neurological findings in the clinical setting to explain or confirm her unsteadiness.
Other than members of the child's immediate family, the only other witnesses who gave evidence of the child's apparent health and well being prior to mid March 2011 were Ms Young, the manager of Warrina Women and Children's Refuge, and Ms Franks, the manager of Caterpillar House Occasional Child Care Centre.
Ms Young
As at February/March 2011 Charlotte Young was the manager of Warrina Refuge in Coffs Harbour and had worked in that facility for 21 years. She held relevant tertiary qualifications. She gave evidence that Warrina Refuge provided housing and counselling support for women and children in crisis, most frequently as a result of domestic violence.
As to their dealings with BJP and the child between 6 December 2010 and 28 March 2011, the records maintained by Warrina Refuge reflect the following:
(a) BJP was referred to the service by RW on 6 December 2010 in circumstances where she had been the victim of abuse from her previous partner. On admission, she was noted to be suffering from anxiety, stress and poor self-esteem. Arrangements were made with Caterpillar House for the child to be accommodated on a "needs basis" as a respite for BJP when the demands of her young child were causing her stress.
(b) Ms Young had the opportunity to observe BJP and the child between 6 December and 14 December 2010 as they were accommodated where the administration of the service was conducted. Ms Young gave evidence that she saw and spoke with BJP over that period, albeit briefly. She described her as an "over-protective mother" who frequently had the child restrained in her pram to enable BJP to attend to her rostered household chores. Ms Young described the child as having good communication skills but that she was "a quiet child" who thrived on adult company. She observed no signs of neglect, injury or anything else to suggest that the child was experiencing any emotional distress. After BJP left the accommodation in Warrina Refuge and moved to supported accommodation in an outreach property, Ms Young saw her infrequently and did not see her with the child or speak with her at this time. An outreach worker, Linda Parkinson, assumed supervision of mother and child at this time. She did not give evidence.
Ms Franks
Rosemary Franks was the director of Caterpillar House, the Child Care Centre to which the child was referred under a funded arrangement with Warrina Refuge. She described the child as engaging at her expected level with others and that her development was appropriate to her age. There was no record of any injuries sustained by the child at Caterpillar House on the eight occasions she attended between 8 December 2010 and 18 February 2011, and no notation of any injuries the child presented with on arrival. Ms Franks gave evidence that it was customary to check a child on arrival in order to identify any injuries sustained during the course of care which would then be reported to a parent when the child was collected at the end of the care period.
Mr Hockings
On 16 March 2011 Lachlan Hockings saw the child whilst he was installing a stereo unit in the accused's premises. He described the child as:
...quiet, long hair ... probably the age of four or five, didn't really say a lot but, she just really sat there.
Mr Hockings said that the accused told him that he was looking after the child. In cross-examination Mr Hockings confirmed that the accused had said to him, "This little girl means the world to me".
The evidence bearing upon the welfare of the child between 2 March - 22 March 2011 whilst in the accused's care
Prior to leaving for Brisbane on 2 March 2011, BJP said that she left money with the accused sufficient for food for two to three weeks, and that she told him of the child's daily routine, including meal times, nap times, and bathing. She also left a cot, a pram, toys and videos. She described the child's daily routine as waking up between 7 and 8.30am, being changed out of her pyjamas, eating breakfast, and then playing until lunch time. Her lunch normally consisted of a sandwich and juice, and at times Milo. On occasion, BJP said she would then take the child to the park. She said the afternoon was a quiet time, when the child would be bathed and given dinner before watching a movie and being put to bed, which was normally between 7.30 and 8pm. For dinner she would normally eat "whatever the adults were eating", which included vegetables, mashed potato and sausages.
On 2 March, BJP and LB travelled to Brisbane by bus. During the journey, BJP and RW exchanged the following text messages. BJP sent the following text:
Well I'm on my way on my journey to Brisie. A little bit nervous but excited. Hope everything's okay. Love you and miss you more than the sky. Xoxo.
RW replied to this text saying:
Don't stress, enjoy it angel. It will be the last time you have a holiday on your own so please don't worry. [JP] looked after by the best person other than me so stop worrying please for me and [JP] okay. I love you more than words can say. Love Mumma xoxo.
On 3 March, BJP sent $70 electronically to the accused. On 10 March 2011, she received a text from the accused stating:
[BJP] can you please send me $100 and I will pay you back when you get back. I wouldn't ask if I didn't need it. I get paid tomorrow but its not enough. Love you dad and [JP] xoxo.
On 5 March, RW's mother (LP) was to meet RW at West High Street Radiology in Coffs Harbour where RW had an appointment. LP arranged to meet the accused and the child there so that the child could give RW a gift before RW was transferred to the Royal North Shore Hospital for surgery.
On 11 March, LP had the child in her care for approximately two hours. She said that the child was well but that the accused told her that the child had nappy rash. She bought cream and applied it. The next time LP saw the child was 16 March, when she again took the child to visit RW at Coffs Harbour Hospital. She also said that she had changed the child's nappy and that the nappy rash had cleared. She again confirmed that the child was well.
LP also saw the child on 23 March, when RW was discharged from hospital. She said that the accused and the child were waiting on the verandah of RW's house. She said that the child was excited to see her grandmother and also that she was "really happy to see everyone". She said that the child was "her normal toddler self". She said that the child and the accused stayed at RW's for approximately half an hour.
LP returned home on 24 March. She did not return to Coffs Harbour until 30 March, when she visited the child in hospital.
Whilst in Brisbane, BJP said that she found accommodation for herself, LB and her daughter. She described the premises as a large house where two other families were living. She would have lived in the granny flat in the backyard, which included a bathroom, lounge room, bedroom and kitchen. She said she believed it would be a safe environment for her daughter.
BJP confirmed that whilst in Brisbane the accused called her on a number of occasions and she would then speak to the child who she said sounded happy. When she returned to Coffs Harbour, she said that the child's locution had improved, and her ability to form sentences had also improved. She said that she believed the child was happy, had been well fed, and generally well looked after.
BJP did not see her daughter the night she arrived in Coffs Harbour. LB did not return to Coffs Harbour with her but caught the next bus on the following day.
Photos and video recordings of the child taken on the accused's phone were tendered in the trial. They depicted the child as responsive and well. The photos were taken on 7 March 2011, and the video recordings were taken on 7, 10 and 27 March 2011 (the latter at RW's home).
The evidence bearing on the welfare of the child between 22 March - 28 March 2011 (following BJP's return from Brisbane)
Whilst in Brisbane, BJP and LB decided they would move there permanently. BJP said she told the accused about the move to Brisbane when she returned and that she was taking the child with her. She said the accused was upset upon hearing this news, as was her mother. She gave evidence that when they returned to Coffs Harbour she needed to organise her relocation, so she decided to leave the child in the care of the accused until they moved. The move was scheduled for 30 March. She said at this time she was living between RW's house and LB's mother's house having terminated her lease with Warrina Refuge, despite the accused offering to accommodate her and the child. She said she refused that offer because she wanted LB with her. RW resided around the corner from the accused.
During this period BJP gave evidence that she organised a trailer to collect her belongings from storage. She said this took approximately a day and a half. She said she also needed to get her car registered, and in order to do this it was necessary to replace the windscreen. LB confirmed her evidence. She also said she visited friends in light of her planned move interstate.
BJP gave evidence that she believed she took the child out to lunch or to the park with LB during the week following her return from Brisbane, however she was unsure on which days. She said she saw the child every day, sometimes twice a day, and that she loved to say "good morning and good night" to the child. She described the child as happy.
RW said that nobody had been living in her house until she was discharged from hospital on 24 March, however she believed (but was not certain) that BJP was at her house when she was released from hospital and returned home.
RW confirmed that on 28 and 29 March BJP was staying with her.
Observations by various witnesses in the days before and the day she sustained the fatal injury
BJP's evidence
At the conclusion of her evidence in chief BJP said that when she bathed the child and changed her nappies from time to time after returning from Brisbane, she did not notice that the child had any unusual bruising (presumably to her buttocks, thighs or abdomen) although she did notice some nappy rash. She said that she noticed a bruise on the back of the child's thigh (she was unable to remember which leg), the size of a 10 or 20 cent piece. She noticed this bruise after she returned from Brisbane, but was not asked when she saw it.
On 28 March 2011, BJP's 20th birthday, she said that she visited the child at the accused's home for approximately one hour. On this occasion she said she noticed a bruise on the left side of the child's forehead, above the eyebrow but below the hairline. When she asked the accused about the bruise, she was told the child had hit her head on a table in his house. She said she saw the child hit her head in the same spot on the same table whilst running down the hall. She described that incident as follows:
I asked [the accused] where [the bruise on the left of the child's forehead] came from and cause he had a table in the hallway of his house, it was a round table, stood about her head height, just in the hallway, she'd run and grab her jamas from the end room at the end of the hallway as she'd come towards the lounge room she had to pass it and she used to run like she was really good and every time she clipped her head on that table and I saw it myself your Honour.
She went on to say that the child was "a good girl but she was hypo".
When asked what she meant by her description of the child as "hyperactive", BJP said that the child had a great deal of energy, in that she loved to dance and sing and jump off the lounge. She said:
... I had seen her bump her head a couple of times. She's getting to the point where she would jump up on the lounge and if you weren't quick she'd try and be Superman and fly off it but, yeah, gravity takes hold but he does have carpet in his house and everything. She was just very unlucky to hit the tiles at the front door that day.
She said that the table was not knocked over when the child's head hit it, and that she did not think to move the table to avoid another accident. She said that the child said, "I'm a toughie" and "bumped noggin", but was not distressed and did not cry. She described her daughter as "a wild child". She confirmed during cross-examination that she was worried about the child as she was at the age where she was "testing her limits". She said that the child was "a toughie" who would not be bothered if she fell over or bumped herself. She agreed that the child was a handful, however denied that this was one of the reasons that she left the child in the care of the accused upon her return from Brisbane. BJP said she also noticed a scratch on the child's forehead, "I noticed the one big bruise and the little scratch on the other side".
On the question of whether the child had been seen to climb onto the pram, Ms Yehia took her to her statement of 31 October 2012 which provides:
Detective Howe has asked me whether I have seen [JP] climb onto the pram in any way. I remember at least one time when she did climb onto the pram. I can't remember whether it was at [the accused's] or at [LB's] mum's. I never saw [JP] climb onto the pram and make it start to tip over. Climbing on the pram is not normally something [JP] would do. She would mostly do anything to get out of the pram. I don't remember telling off [JP] for climbing onto the pram at [the accused's] place ever. There was never a time that [the accused] needed to put the pram into [JP's] room because she was climbing onto it. I don't think the pram would fit in there.
She maintained that she did not remember seeing the child fall off her pram, but said that the pram was normally parked near the front door.
BJP confirmed that she spoke to police on a number of occasions, and she was often asked by them about the relationship between the accused and the child.
In her interview on 2 April 2011, when asked about other areas of bruising on the child she said:
...I know it's definitely there cause you guys, why would you lie to me, but I just - I don't understand how or why for the fact that I see them together and they are that happy and, you know, he'd protect her with his life. He'd die for her and he's a mess at the moment.
She also said to police:
I just can't see him doing anything like this to her. Like when I saw them playing it puts a smile on, they were so happy together...
She was also asked by police about the abrasion on the right side of the child's head. She responded:
I'm not exactly sure where the gash on the right side of her head came from but it looked like a corner of a table or it could have been from the park.
Ms Yehia put to BJP that there was an occasion after her return from Brisbane where she "smacked the child really hard", and that the accused subsequently confronted her about it, which she denied.
In October 2012, BJP was shown the pre-mortem photographs of the child by Detective Howe, and he asked her to mark the photographs which disclosed the injuries of which she was aware prior to the child sustaining the fatal injury on 30 March.
She confirmed that she had seen the bruise to the left side of the child's forehead and the scratch on the right (photograph 2648) which she said she saw on 28 March and which she believed occurred when the child hit her head on a table at the accused's residence. However she did not circle the other marks on the child's forehead, which she said she noticed at the hospital. She said that she was not responsible for the bruises and did not know how they occurred.
She said that she had not seen or done anything to cause the red mark in the child's right eye (photograph 2643), or the red area of discolouration behind the child's ears (photograph 2630). Again she confirmed she did not cause these injuries.
She said that when she bathed the child she did not notice any injuries other than the bruises on the forehead and the back of the thigh. In respect of photographs 2665 and 2666, which depict the child's thigh and buttocks area (both of which show significant bruising), she said that she had not seen these marks, did not cause them herself and did not know how they were caused. She said the first time she had seen these bruises was in October 2012 when she was shown the photographs.
Photograph 2679, depicting a small coin-sized bruise on the back of one of the child's thighs, was circled by BJP. She confirmed that she had noticed this bruise before 30 March and said that the accused told her that the child had fallen off the lounge.
LB's evidence
LB gave evidence that he noticed a bruise on the child's forehead when he saw her at the accused's home on 29 March 2011, however he could not recall on which side of her head. He said that the accused told him that the child had hit her head on a "table or bench". He also said that he witnessed the child bump her head inside the accused's premises "a few days before". He said that he did not see any other marks on the child.
RW's evidence
RW gave evidence that on 28 March 2011, when she returned home after being discharged from hospital after surgery, she noticed a bruise on the child's forehead. She said she asked her daughter about it and was told that the child had bumped her head on the table or a piece of furniture. Other than that she said that the child was in good spirits and was otherwise happy and healthy. She said she believed the mark was on the left side of the child's forehead, but she could not be certain. She did not notice any other marks, bruises or injuries on the child.
Dr Robertson's evidence
Dr Robertson is a medical practitioner in New South Wales and is currently employed as a practitioner at the Coffs Harbour Health Campus. He has a Bachelor of Medicine, Bachelor of Surgery and is an emergency medicine specialist. He has been practising as an emergency medicine specialist for 16 years.
Dr Robertson noticed bruising across the top of the child's forehead near the hairline which was documented in his clinical notes, however he did not say and was not asked on which side of the forehead this bruising appeared. He noticed bruising to other parts of the child's body which he did not document, but which he considered were in various stages of healing. Following a brief external examination of the child's body on her admission he noted injuries that may have occurred at other times that were all of different ages but since he did not record their nature or location he was unable to give evidence about them.
Paul Harmey's evidence
Paul Harmey has been an ambulance paramedic for 26 years. He noticed bruising on the left side of the child's forehead. He was unable to say whether he noticed the bruising in the pre-mortem photographs just above the left eyebrow and the more substantial bruising located higher up on her forehead, or whether there was bruising in just one location. He gave evidence that on the way to hospital he asked the child's mother about the bruising on the child's forehead and she had explained that the child's head was at a bad height with the kitchen bench, and that the child had bumped into that.
29 March 2011
BJP described her normal daily routine which she said she adhered to on 29 March. She said this included going into town, visiting the accused and the child, seeing her friends, and visiting her mother and anyone else who needed help. She said she received a text message from the accused on 29 March which read:
[BJP] you forgot to give me my change from yesterday. It's my food money love. Love you. Girl you're a woman now.
BJP said that she and LB visited the child at the accused's home, arriving at approximately 4pm and that she believed they both left at approximately 5pm. She said that they were with the child (and the accused) out the front of the accused's home during the visit, which she described as follows:
I think that was the day [LB] brought his guitar cause we were going to sing some songs and say hello to [the child] and stuff. I think we sat out the front and had a couple of cigarettes and smelling the roses in the garden and everything and we were just singing songs with the guitar.
She said that they were together at the accused's home until she and LB returned to her mother's home where they stayed the night. She said that neither she nor LB took the child away from the accused's home at any time that afternoon.
This was confirmed by LB in his evidence as follows:
Q. So can you remember the time of day, this is on 29 March, that you saw [JP]?
A. It was in the afternoon that I went over, some time in the afternoon.
Q. Who did you go over with?
A. [BJP].
Q. Did you take anything with you?
A. I think I may have had a guitar or something, I can't remember.
Q. Were you playing guitar at that time?
A. Yes I was playing guitar at that point and I always used to take it everywhere with me.
Q. An acoustic guitar?
A. Yeah an acoustic guitar, six string.
Q. Did you sometimes play the guitar for [JP]?
A. Yeah she thought it was pretty cool.
Q. Did you two sing songs together?
A. Yeah, well she tried to sing.
Q. So you went over there this afternoon with [BJP]. [JP] was with [the accused] and you think you may have had your guitar?
A. Maybe. I remember playing with her in the front yard, running around the front yard with her. We were playing catch and it was pretty cool.
LB gave evidence that the child was somewhat exhausted after playing catch. When asked by the Crown if the child could talk he answered, "A little bit but not overly great", but said that the child did not complain of feeling any pain on that day. He stated that the child was sad when he and BJP left and that she cried "a little bit".
LB stated that he noticed a bruise on the child's forehead that afternoon, however he could not recall on which side. He said that the accused told him that the child had hit her head on a "table or bench". He also said that he witnessed the child bump her head inside the accused's premises on another occasion. He said that he did not see any other marks on the child.
He said he did not do anything to cause the bruising revealed on the photographs shown to him by the Crown, and that he did not know how the injuries were caused.
BJP said she did not bathe the child that afternoon and she believed that the child was not changed into her pyjamas when she was there, but she assumed she would have changed the child's nappy. She said that she did not notice any injuries on the child other than the bruise on her forehead which she had seen previously. She said that the child did not complain of feeling unwell or of being in pain. She said the child did not have any difficulty running around the garden. She said that the child was sad when she and LB left.
At the conclusion of her evidence in chief, BJP denied ever doing anything to physically harm her daughter and that she would "protect her with [her] life". She also said that she had never seen the child climbing on the pram as the child did not like it. Further, in the period of 27 March to 29 March she said she did not hit, punch or slap the child and during the same period had not left the child alone with LB.
30 March 2011 - The day the child was fatally injured
Dr McClure's conversation with the accused at 9.46am
Dr McClure practices at a medical centre in Coffs Harbour. As at March 2011 he had been the accused's general practitioner for three and a half years. The accused was assessed by him as being overweight and unfit. A diagnosis of emphysema by a colleague was reviewed by Dr McClure but not confirmed. He agreed, however, that it was a "physical challenge" for the accused to attend the medical centre. As at March 2011, the accused was prescribed Antenex (a benzodiazepine, also prescribed as Valium) and Pristiq (an antidepressant) in 50mg doses which, in combination, addressed a diagnosed anxiety disorder.
Dr McClure gave evidence that there were two alternate procedures for the prescribing of medication to established patients. One involved the patient attending upon a doctor in the consulting rooms, and the alternate procedure, where an established patient simply required a repeat prescription to be issued, involved the patient speaking to the doctor by telephone after which the prescription would be left for collection at reception. The telephone attendance was not always noted in a patient's medical file, but it would be noted as a prescription issued on the computer file maintained at the medical centre.
Dr McClure gave evidence of receiving a telephone call from the accused on the morning of 30 March 2011. (Other evidence timed this call at 9.46am.) He said the accused requested a repeat prescription for Antenex to be faxed through to a Soul Pattinson chemist in Coffs Harbour. Although Dr McClure's notes do not record the terms of that telephone attendance, he gave evidence that the accused said something to the effect that, "Something terrible has happened". He also gave evidence that despite breathlessness, agitation and some incoherence being features of his previous dealings with the accused when he was exhibiting symptoms of anxiety, on the morning of 30 March they were evident in a more exaggerated and acute form.
In cross-examination, he agreed that while he was not able to be certain that "Something terrible has happened" were the precise words that the accused used, it was words that were close to those words and that they conveyed to him the same meaning. He agreed that in ordinary circumstances, without a note in his clinical records, he might not have recalled a patient making a comment of that kind, however in circumstances where, in a further telephone attendance with the accused on 4 April and a personal attendance on 15 April, he learnt of the child's death, the accused's earlier comment was fixed in his mind. He also agreed that he had not volunteered to police that he had spoken with the accused on the morning of 30 March 2011 before making a statement to police in December 2012. Whether he should have contacted police earlier and the reasons for his failure to do so were not explored in cross-examination or re-examination.
Under cross-examination, when it was put to him directly that the accused did not present any differently over the telephone on 30 March than in Dr McClure's other dealings with him as a patient and, in particular, he did not display any symptoms of acute anxiety, Dr McClure disagreed and maintained that in his estimation, the accused was "more anxious that day". He also gave evidence that he had the impression that the accused may have been tearful, but over the telephone he could not be sure if he was crying.
He gave evidence that he would expect the Antenex (which was administered by the accused on a "needs basis" when anxiety to some degree was experienced) would take effect within 20 or 30 minutes and, after the medication took effect, that those symptoms would lessen, although they would be unlikely to resolve completely.
Carmel Maione's dealings with the accused at 10.01am (when the Antenex was dispensed) and for some minutes before that time
Carmel Maione has worked as a pharmacy assistant at Soul Pattinson chemist in Coffs Harbour for approximately seven years. She said she saw the accused and served him on a regular basis. She described his demeanour as quiet but friendly, and as someone who was willing to start a conversation and engage with her.
Ms Maione described herself as a friendly person, enjoying making customers feel comfortable and accommodated. She considered herself able to judge people's emotions having had experience dealing with a variety of emotional situations as a mother, grandmother and in the course of her employment. Ms Maione gave evidence that she was often exposed to children in the course of her employment.
On 30 March 2011, Ms Maione recalled serving the accused which, by reference to the tax invoice tendered in the trial, evidenced a cash transaction at 10.01am. (It was not in issue that it was this transaction in which the accused was issued with the anti-anxiety medication prescribed by Dr McClure following the accused's telephone call at 9.46am.)
Ms Maione said she first saw the accused sitting in the consultation area of the chemist where he was waiting for his prescription to be filled. She said he was with a little girl who was sitting upright in a pram which was beside him, with a raincover over her legs. She said it was a drizzly and overcast day. She said it was the first time she had seen the accused with a child. She said that she could see the child's face clearly and that the child looked upset, with a slight quiver in her lips. Ms Maione said that she tried to start a conversation with the child without success. Ms Maione also gave evidence that she attempted to have a conversation with the accused about the child, which was also unsuccessful. She said she thought that was unusual as the accused was usually a friendly and conversational person. Ms Maione's words to the accused were, "Oh you've got a little friend with you today", to which he did not respond. As the accused and the child left the chemist, Ms Maione said the child gave her a small wave and a half smile. The accused did not say anything to Ms Maione as they left the chemist.
Were I left in no doubt as to the credibility of the evidence of the child's mother and her boyfriend, and in particular, were I left in no doubt that it was the accused, and only the accused who had the opportunity to inflict the injuries on the child, thereby excluding any reasonable possibility that BJP or LB or both might have assaulted the child, and were I also able to accept their evidence that when they left at 5pm on 29 March the child was well in all observable respects, then logic would dictate that I would find that it was the accused who inflicted the secondary injuries given their frank presentation on her admission to hospital and that he was the only person who had access to her in the preceding 24 hours. Were I able to reason in that way, it would also allow me to afford preponderant weight to the Crown's submission that the secondary injuries were inflicted by the accused at some time after 5pm on 29 March and before 9.45am the following morning after he lost control, perhaps only momentarily, and repeatedly struck the child (or threw or dropped her) perhaps as a consequence of the interplay of environmental, physical and emotional stressors the Crown submitted were in play, and that in a state of abject remorse he telephoned his doctor for assistance and made a telling admission in the process.
While I do not reject the evidence of the child's mother in its entirety (or to the extent that LB gave truly independent evidence, the entirety of his evidence), I am however left in considerable doubt as to whether their version of events of the afternoon of 29 March is truthful and, by necessary extension, whether their version of events as it relates to the delay in calling the ambulance is acceptable. It is no part of my role or function to make a finding that the child was forcefully smacked on her buttocks and about her head and ears by the child's mother or by anybody else, and I do not make that finding. I am not however persuaded on all of the evidence to a sufficient level of satisfaction that the accused inflicted those injuries. Unlike the child's mother, there is nothing in the evidence that is even faintly suggestive of a tendency to violence on his part. The overwhelming weight of the evidence is that his treatment of the child is to the contrary. Further, his exposure of the child to public view after having, on the Crown case, abused her such as to cause observable injuries is also inexplicable.
In contrast, the tendency evidence in the trial led by the accused does establish that the child's mother can, under stressful circumstances, lose self control to the extent of inflicting serious and sustained violence upon a vulnerable person, without apparent regard for the consequences, and then to later express regret and remorse. Whilst there is no evidence that the child was assaulted by her mother (aside from the accused in his interviews with police to which I afford some weight), I am satisfied that the measures she took to control the child by tightly restraining her in her pram does tend to suggest that she was not, as a very young mother with an active, even hyperactive child, always able or willing to employ more benign methods of controlling her. I note in that connection that, contrary to BJP's evidence that the child was "hypo" or a "wild child", to the observation of Dr Bedford, Ms Young and Ms Franks she was a relatively quiet child, also consistent with the accused's experience of her whilst she was in his care.
I emphasise that I cannot say what occurred to the child while she was in her mother's company for some hours on 29 March. That said, the accused's observations of her on her return as subdued and possibly unwell and with a raised temperature are suggestive that something happened to the child to result in the bruising observed by medical personnel the following day. Whatever happened might also explain Ms Maione's observations of the child as unwell. I caution myself against affording the accused's observations of the child upon her return any undue weight given that they are untested in cross-examination. On the other hand, the lengthy and intensely focused questions by police and the answers volunteered by the accused without accusation or insinuation are, in my view, entitled to appropriate weight in his favour.
Reasoning in this way, I am also prepared to conceive of the reasonable possibility that the child's condition worsened on the night of 29 March and into the early morning of the following day (or at least her condition did not stabilise or resolve to the extent that she fully recovered) such that by mid morning, with the bruising becoming apparent, the accused became concerned, even alarmed, that either he would be regarded as an irresponsible or negligent carer or, perhaps even more likely, that he knew or believed that the child's mother (his de facto stepdaughter for whom he felt considerable paternal sympathy) was responsible for harming the child and that, in an unguarded moment, when seeking to address his anxiety in that situation, he reported to Dr McClure that "Something terrible has happened", as reflecting that knowledge or belief.
I am also compelled to the view that his lies to police about his movements on the morning of 30 March might have been motivated by something other than a consciousness of his own guilt in respect of the crime charged, namely a misplaced but understandable desire on his part to protect BJP from the obvious judgment that a disclosure that she had harmed her child would involve, and that he became wedded to that lie and could not later retract it.
I now move to consider whether, in light of those findings depriving the Crown of any reliance upon the accused's infliction of the secondary injuries, or the lies he told to police as to his movements on 30 March as evidence in proof of the allegation that he fatally assaulted the child, the Crown has discounted the reasonable possibility that the injuries which caused the death of the child were sustained accidentally in the fall.
Accepting as I do for the purposes of this analysis that the accused called the child's mother at 10.21am and told her that the child had harmed herself in a fall, and that it was within minutes that she arrived to find the child unconscious, if the accused deliberately inflicted the head injury there was a very narrow time frame, measured in minutes, after he left the chemist and returned home to do so.
One of the factors relied upon by the Crown as undermining the plausibility of the accused's account of accident is the relative placement of the pram and the child in the reconstructed accident scene. There was evidence from the manufacturer of the pram that the pram seized from the accused's premises was in generally poor condition, with some suggestion that the back wheels did not function in accordance with the condition of the pram at the point of initial purchase. On the other hand, there was no evidence to suggest that the base functioning of the pram and its stability was other than sound. No evidence was called by the Crown however, to inform the question of whether it was possible for the pram to be rendered unstable if climbed upon and, if it was rendered unstable, the likely direction it would move so as to ultimately fall on its side. It is a notorious fact that the dynamics of a fall are difficult if not impossible to recreate, the more so when the fall is unwitnessed. While for my part I find it difficult to conceive of how the child came to rest, or how she may have come to rest on the tiled foyer with her head generally at right angles to the door and the pram on its left side in the carpeted area of the lounge room that leads directly to the small tiled foyer, the evidence does not allow me to find that the physical laws do not allow for the possibility that the child fell backwards from the pram and struck her head. Uninformed by the evidence, I would be at risk of speculative reasoning with all of the inherent dangers that are entailed were I to conclude otherwise. From a different but allied perspective, while again I find it difficult to conceive of why a child in what I am satisfied must have been the compromised physical condition of the deceased child on her return from the chemist might climb onto or into the pram, to conclude against the accused that there is no rational explanation for it, attributes to a two and a half year old child a degree of rationality and predictability, which has its own inherent dangers.
Because the combined weight of the medical and biomechanical evidence cannot exclude the possibility that the child sustained the fatal head injury from the postulated fall from the pram, in the absence of other evidence available to the Crown to discount that as a reasonable possibility, I am compelled to the conclusion that the Crown has not disproved beyond reasonable doubt that the child's fatal injury was the result of an accident.
There remains a complex of perplexing issues raised by the evidence in this trial, but I direct myself that it is for the Crown to prove guilt beyond reasonable doubt and in this case the Crown has failed to discharge that heavy onus.
Accordingly, on the charge that on 1 April 2011 the accused murdered JP, I find the accused not guilty and enter that verdict.
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Decision last updated: 30 November 2013
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