R v Hammond (Ruling No 3)
[2019] VSC 195
•25 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0312
| THE QUEEN | |
| v | |
| SCOTT ROBERT HAMMOND | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | Geelong |
DATE OF HEARING: | 25 March 2019 |
DATE OF RULING: | 25 March 2019 |
CASE MAY BE CITED AS: | R v Hammond (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 195 |
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CRIMINAL LAW – No case submission – Test for no case in a circumstantial case – Whether innocent manslaughter rationally excluded – Whether murderous intent can be deduced from the severity of the injuries – Evidence of force required to cause injuries is insufficient to prove intent for murder -- Criminal Procedure Act 2009 (Vic) ss 226(1)(a) and 241(2)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Miss M Mahady with Mr T Bourbon | Office of Public Prosecutions |
| For the Accused | Mr S Bayles with Ms E Clark | Stary Norton Halphern |
HIS HONOUR:
In this matter the accused, Scott Hammond, is charged with the murder of his child, Braxton Hammond, then aged 11 weeks, and, in the alternative, child homicide contrary to s 5A of the Crimes Act. The death of this child occurred in the Royal Children’s Hospital on 23 October 2011. The event leading to his death, in all likelihood, occurred on 15 October 2011.
The prosecution case has closed and, on behalf of the accused, a submission has been made pursuant to s 226(1) of the Criminal Procedure Act 2009 that there is no case for the accused to answer on the charge of murder. No submission is made in relation to the alternative charge of child homicide.
On 15 October 2011, in the late afternoon or evening, the mother of Braxton Hammond, Nikita Cook, was visiting her brother and his partner in the Colac area. She had left Braxton Hammond and his twin brother, Dean, in the care of her partner, the accused. At around 7:45pm, she received a phone call from the accused advising her that Braxton had stopped breathing. Ms Cook returned home urgently and then took the child to the Colac hospital. Sometime shortly thereafter, after the child had been examined and his condition diagnosed, he was taken by air to the Royal Children’s Hospital, and ultimately died of his injuries on 23 October 2011 when life support was withdrawn.
The medical evidence indicates that the child was suffering from widespread subdural haemorrhages over his brain. He suffered from an hypoxic ischaemic brain injury as well as a haemorrhage in the spine and bilateral retinal haemorrhages. The medical evidence excludes as a cause for those injuries anything other than the application of force. The prosecution allege that the injuries were inflicted on the child by the accused during the period while Nikita Cook was away from the house.
The issue which has arisen for the jury’s determination in this trial is not so much what caused these injuries, but rather whether they were caused by the accused or by the mother of the children, Ms Cook.
The issue for resolution in this ruling is the issue of intent. The submission made by Mr Bayles, on behalf of the accused, is that there is no evidence in the prosecution case on which a jury could rationally conclude that the accused intended to kill Braxton Hammond or cause him really serious injury – assuming that he was the person who inflicted the injuries on this child. Therefore, it was submitted there is no case for the accused to answer on the charge of murder because the element of intent could not be proved.
The case against the accused on the charge of murder is entirely circumstantial. It relies on the opinions of the expert medical witnesses. Mr Bayles has submitted that in such circumstances, if a reasonable inference consistent with innocence is open and cannot be rationally excluded, then his no-case submission should be upheld. He referred to a ruling of mine in The Queen v Mocenigo[1] and, in particular, a reference to the holding of Ormiston JA in The Queen vCengiz,[2] in which His Honour said:
If it can be shown that it is open to the jury to hold that all other hypothesis should be excluded as irrational or unreasonable, then it is important to allow the jury to apply their collective minds to the issue... [3]
Also in that case, Harper AJA added:
It sometimes happens in a circumstantial case that the evidence is not in dispute but the parties disagree about the inference or inferences which should be drawn from the facts. In such cases the judge must take the case away from the jury if and only if an inference consistent with innocence is not only open on the undisputed evidence but is also an inference which cannot be rationally excluded.[4]
[1](Ruling No 4) [2012] VSC 442.
[2][1998] 3 VR 720.
[3]Ibid 721.
[4]Ibid 735.
In his ruling in The Queen v Bond,[5] T Forrest J, after reviewing the principles, concluded:
Thus, on the no-case submission to murder, I consider the test is this — could the jury rationally exclude the innocent manslaughter hypothesis? [6]
[5](Ruling No 15) [2012] VSC 119.
[6]Ibid [4].
The leading prosecutor, Miss Mahady, has accepted that the prosecution case against the accused on the charge of murder and whether murderous intent can be proved depend entirely on the medical evidence. In particular, it depends on whether the medical evidence established that the level of force required to inflict the injuries on the child was of such a magnitude as to compel the conclusion that there was at least an intention to cause really serious injury. There is no other evidence on which that conclusion could rely. Miss Mahady has, however, submitted that the evidence is such that the jury could conclude the issue of murderous intent adversely to the accused.
Thus, the issue depends significantly on the evidence of the medical practitioners who gave opinion evidence about the level of force that would be required to cause the injuries. In the order in which that evidence was given, it included the following:
Forensic pathologist Dr Linda Isles gave the following evidence:
Q:Are you able to comment upon the force that would be required in terms of shaking and impact to cause this type of injury?
A:Ah, not easily. So one of the – one of the difficulties about this area of injury to children’s brains, ah is the lack of accurate biomechanical models that truly replicate an infant’s spine and its brain and its delicate vascular structures and its state of myelination. Um that – those models don’t exist tell us with any precision, the exact quantum of force that is required to um produce subdural haemorrhages and a catastrophic cardiorespiratory arrest as we’ve seen here. [7]
She went on to add:
…I can only say that the forces required to produce the spectrum of injuries um must be significant in excess of normal handling.[8]
She concluded the following answer with the observation:
So therefore that specific quantum of force remains unknown.[9]
[7]T 498.10-21.
[8]T 498.23-26.
[9]T 499.4-5.
She later agreed in cross-examination that beyond saying the same level of force was significantly more than normal day-to-day handling, she was unable to otherwise say what the level of force required to produce these injuries would be.[10] She added:
…there are a number of variables in terms of frequency and repetition and the forces involved in shaking. There is no empirical evidence that I can give to assist any further with that.[11]
[10]T 530.17-23.
[11]T 531.8-11.
Dr Amanda Gwee was asked similar questions:
Q:In terms of shaking what can you say about the amount of force that would be required to produce this type of injury?
A:So it’s not known exactly the amount that you need to cause this triad (referring to subdural haemorrhage, retinal haemorrhage and brain injury) but it’s something we don’t see with the normal handling and settling of babies. [12]
[12]T 583.11-15.
Later, asked whether or not a fall with impact to the head could produce these kind of injuries, she responded:
Ah, certainly not a simple fall. [13]
[13]T 604.13-14.
She agreed that the mechanism by which the injury manifests itself within the brain is something that is not completely understood by medical science.[14] She said that:
… a simple fall would not generate the forces required to produce the injuries.[15]
[14]T 605.10-17.
[15]T 608.29-31.
In re-examination, when asked what type of accidental trauma would have been involved, Dr Gwee did say that it would have to be high impact, high force trauma[16] and something akin to a motor vehicle accident, or significant fall.[17]
[16]T 614.28-29.
[17]T 614.31-615.1
Dr Deborah Colville is an ophthalmologist and gave evidence about the retinal haemorrhages that were obvious in the eyes of the deceased child. Asked about those haemorrhages, the witness said that they were consistent with shaking, and asked to comment upon the force said:
I don’t know. No, I don’t know. I just know that with even like quite a bad head injury it would be exceptional to see this.[18]
[18]T 741.23-25.
She went on to say when asked:
Q:But if it’s accepted there was a shaking event that occurred, the first proposition is you’d be unable to make any comment about the degree of force that would be necessary in that shaking event.
A:No. It has to be shaking.
Q:Yes?
A:But no, I – I’m not able to give you the speeds.
Q:You’d be unable to make any comment about the duration of any shaking event?
A:Ah, no but it wouldn’t be just once. [19]
[19]T 745.4-11
In the evidence of the specialist from the University of Florida, Dr Randell Alexander, when asked about the amount of force required to cause the injuries, he said:
A very severe force. I mean this isn’t something about a parent that was rough with the child, or else we see so many of these injuries I suppose, but this really is very severe to cause this and it’s repetitive so a single shake won’t do it. That’s the equivalent of a fall and that doesn’t give you the pattern of retinal haemorrhages, it looks a little different most of the time on the CT scans. So this is a repetitive back and forth shaking that can accumulate to cause these injuries. [20]
[20]T 737.4-13.
In the course of cross-examination, the following was put to Dr Alexander:
Q:What I want to suggest to you is that, beyond that, you cannot say with any degree of confidence or certainly precisely what is the level of force that would be required to bring about the injuries that were observed here?
A:I don’t think that’s entirely true, but when you phrase it as a level of force is the dilemma: The level of force for which brain cell? Um, because they’re all slightly different and things. So the reason we can’t answer it and give a number, like, for instance, if I said 42, that would be meaningless. For what? Um, what could we say on that? So, um, instead its more qualitative terms in terms of being severe, serious, the sort of thing that the American Academy of Pediatrics described as to the external observer looked like someone’s going to get seriously injured or killed.[21]
[21]T 762.4-19.
I have examined the relevant parts of the evidence concerning the level of force required to produce these injuries because it is conceded by the prosecution that proof of the intention to kill or cause really serious injury is entirely dependent on that evidence. There is no other evidence bearing on the intention of the accused.
In the course of submissions, the prosecution relied on the judgment of the New South Wales Court of Criminal Appeal in BJR v R[22] in support of the submission that adverse conclusions about the accused’s intent can be deduced from the severity of the injuries, even when that is the only available evidence. As a matter of broad principle, that submission must be correct.
[22][2008] NSWCCA 43.
However, in that case, the appellant was convicted after a trial of two counts of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm and one count of assault occasioning natural bodily harm. The victim of these actions was the child of the appellant, then aged three weeks. As in this case, the Crown case was an entirely circumstantial one. The issue at trial was whether the prosecution’s evidence had excluded the possibility that the injuries were accidental as a result of normal handling by parents and/or relatives, or the result of falls or play activity with other children.
The convictions were upheld by a majority (Hulme J dissenting). Importantly, in the judgment of Beazley JA, the following observation was made:
[31] Notwithstanding that the medical experts could not ‘quantify’ the amount of force necessary to inflict the injury, the unanimous effect of their evidence was that the most likely cause of the injury was the use of compressive force. The other possible cause of the injury was the application of force whilst the child was lying on a hard surface. In either case, the degree of force that was necessary was described as “shocking”, “considerable” and “in excess of normal handling”. The jury were well placed to understand that evidence. Indeed, it is likely to have been more understandable than any ‘quantification’ based on a scientific formula that the jury may or may not have understood. [23] (Emphasis in original)
Her Honour went on in her conclusion to observe:
[33] In my opinion, the inference that the appellant intended to cause really serious harm was compelling and it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant, relevantly to the matter in issue here, had the requisite intent to inflict serious bodily harm.
[23]Ibid.
It therefore becomes apparent that the case in BJR raised a slightly different issue from that which arises in the case before me. In this case, the question is whether the level of force required to inflict the injuries suffered by Braxton Hammond was such a force as to compel the conclusion that the accused must have intended to kill Braxton Hammond or cause him really serious injury, and to exclude the ‘innocent manslaughter hypothesis’ referred by T Forrest J in his ruling in Bond.
As the brief review of the evidence demonstrates, in my opinion, the evidence could never reach that stage. In my view, there is considerable uncertainty about the degree of force required to cause these injuries, which makes the distinction between murderous intent on the one hand and dangerousness on the other almost impossible to identify in the context of child homicide.
In addition, the jury would have to disregard those parts of the evidence, such the evidence of Dr Iles, that biomechanical models do not exist to identify with precision the quantum of force that is required to produce subdural haemorrhages and catastrophic cardiorespiratory arrest. It is tolerably clear, in my opinion, a conclusion only that the force required must be significantly in excess of normal handling would not, by any means, be sufficient to reach the standard required for the proof of intent for murder.
I have therefore come to the opinion that, in this case, the jury could not rationally exclude the ‘innocent manslaughter hypothesis’ and, in those circumstances, pursuant to s 241(2)(b) of the Criminal Procedure Act, I propose to take the charge of murder away from the jury’s consideration by discharging them from delivering a verdict on that charge and directing that a verdict of not guilty be entered.
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