R v Jamie Schofield (No 2)
[2013] ACTSC 248
•21 November 2013
R v JAMIE SCHOFIELD (NO 2)
[2013] ACTSC 248 (21 November 2013)
CRIMINAL LAW – Trial – trial by judge alone – where the evidence is insufficient to sustain conviction – power of a judge to direct verdict of not guilty on ground that verdict of guilty would be unsafe and unsatisfactory – turns on its own facts
Doney v The Queen (1990) 171 CLR 207
EX TEMPORE JUDGMENT
No. SCC 63 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 21 November 2013
IN THE SUPREME COURT OF THE )
) No. SCC 63 of 2013
AUSTRALIAN CAPITAL TERRITORY )
R
V
JAMIE SCHOFIELD
ORDER
Judge: Refshauge J
Date: 21 November 2013
Place: Canberra
THE COURT ORDERS THAT:
There be a verdict of acquittal in relation to the second count on the indictment that Jamie Schofield assaulted Trevor Schofield and occasioned him actual bodily harm.
Jamie Schofield has been charged with two counts of assault occasioning actual bodily harm and, in the alternative, two counts of common assault. At present, I am only concerned with one of the counts of assault occasioning actual bodily harm, the other count having resulted in a verdict of not guilty as a result of the lack of evidence available to support that charge.
An application has now been made for a directed verdict, in effect, because it is said there is no evidence that would be sufficient to sustain the case on the other count of assault occasioning actual bodily harm.
The offences arise out of events that occurred shortly after the birth of the baby, Trevor Schofield, in January 2011. Subsequent investigations disclosed that there were fractures of his ribs in a number of places. Further investigations resulted, ultimately, in the accused, Mr Schofield, being charged with the offence.
The evidence has almost entirely come from Tiffany Harber, the then partner of Mr Schofield who is the mother of Trevor. That evidence was of maltreatment of Trevor, she says, by Mr Schofield on a number of occasions. There were alleged to have been quite a number of such occasions, in addition to those that found their way into the offences with which Mr Schofield was charged.
The offence with which I am now concerned is one of the counts of assault occasioning actual bodily harm. The occasion which is said to have constituted this offence was said to be when Mr Schofield grabbed Trevor. The terms of the particulars of the offence are that he “[s]queezed the child about the stomach abdomen, resulting in the accused’s finger going under his rib cage and the child vomiting and crying”.
Of course, it is not the case that one is entirely limited in a strictly literal way to the precise terms of the particulars if there is no prejudice and no unfairness to an accused about the precise terms under which the charges have been particularised if the evidence, as it ultimately comes out in the court, is somewhat different.
Nevertheless, the overriding requirement is that the trial be fair.
It is said that, on the evidence as it now has come out, there is no evidence to support the causation of the injuries, namely the fractures of the ribs, in any of the events described by Ms Harber, that could be causative by the accused, Mr Schofield, of those injuries.
The test on such an application is set out authoritatively in Doney v The Queen (1990) 171 CLR 207, where the Court said (at 212):
There is no doubt that it is a trial judge’s duty to direct such a verdict [that is, a verdict of not guilty] if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.
The level of that evidence, however, was subject to further comment by the Court when it is said (at 214-5):
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
The evidence in this case was not always entirely easy to identify as there were, ultimately, a number of occasions on which it was said by Ms Harber that Mr Schofield handled or conducted himself in relation to Trevor in ways that would be inappropriate and which may amount to abuse and may constitute an assault.
I have read the transcript of Ms Harber’s evidence and I note that, on every occasion in which she referred to such incidents relevantly, she has used the word “stomach”.
For instance, the first occasion was early in the transcript, when she was asked what she saw and she said:
I saw him push on Trevor’s stomach. He was sitting next to him. Trevor fell off the couch.
She later was asked:
Now, you said that he pushed on his stomach. Can you explain to his Honour, in as much detail as you can as to exactly what you saw on that occasion?---I saw Jamie – his hands were around Trevor’s stomach, and his fingers were under Trevor’s ribs.
That reference was repeated elsewhere on a number of occasions where she referred to pushing on Trevor’s stomach. It is clear, however, that she was aware of the position of the stomach because, at one stage, she was asked, in relation to another incident:
Did you see where that punch landed?---In – right there, in his – on his stomach.
So you’re pointing just under the rib cage. Is that right?---Yes, just under the rib cage.
Later, she referred to squeezing. Her evidence was this. She was referring to a point in time where she had stayed with her aunt. Ms Harber said:
I stayed with my auntie for about – I think it was about a week after Jamie punched – squeezed Trevor’s stomach.
She was asked:
Okay. A week after he squeezed his stomach the first time or the second time?---The second time.
So just to be clear, a week after the second time he squeezed the stomach, you’ve gone to stay with your auntie for a while?---Yes.
It was later put to her that she had never used the word “squeezing” before, that, in fact, all she referred to was using her fingers to press into the stomach. She admitted that, although it was suggested that she had made, to a Care and Protection worker, use of the word “squeezing”.
She was later asked about these incidents, in respect of the first occasion. She was asked:
The first one you talked about was thumbs going into the stomach. Now, are you saying now that thumbs went under the ribs?---Yes.
So thumbs up under the ribs of the stomach, now, you said in your evidence that – and tell me if I’ve got this wrong – that Trevor was lying on his cot before this happened?---Yes.
Later:
And at this stage you see him standing over Trevor?---Yes.
And is he doing anything at this stage?---Yes, he had his hands on Trevor’s stomach and his thumbs were under his ribs.
And later:
So the first one was thumbs into the stomach area?---Yes.
Later again, she was asked:
And you said – you basically demonstrated that he was pushing his fingers in to the top of the stomach?---Yes.
Fingers in, to the top of the stomach here?---No, it was his thumbs.
Well, you told her the fingers, didn’t you?---Yes. Yes, I did tell mum it was the fingers.
So the thumbs is a new thing, it’s something you’re said for the first time today?---No, the thumbs one was when he got underneath the ribs.
So you didn’t tell your mum about the thumbs, though, did you? No, I told her – I think I told her later on.
So you told her, on this occasion about fingers into the stomach area, pushing there?---Yes.
I note that that is the first reference that I could find of “stomach area”, as opposed to simply “stomach”.
She was then asked about what she had told the police on the phone. It was put to her:
So it’s the case then, is it, that the only things you told the police, in terms of what you’d observed, when you were on the phone to them was about pushing into Trevor’s stomach?---Yes.
She mentioned the stomach area again, but in a context that was consistent with the earlier evidence. She was asked:
And if I can indicate for the transcript, the witness is agreeing that the pressing position is thumbs together in the middle, pressing down on a body, with the fingers into the stomach area, with the fingers going up underneath the ribs?---Yes.
Is that correct?---Yes.
With the thumbs as I’ve indicated. Right. And there’s no doubt in your mind that that’s what you saw?---Yes, that’s what I saw.
Right. Well, there’s nothing there about the thumbs going up under the ribs, is there? It’s the fingers?---The fingers and his – he did – Jamie did put his thumbs into Trevor’s ribs as well.
A little later:
Because you told the police this, didn’t you, that his thumbs were on the outside of Trevor’s body?---Yes. And that was – like, because how Jamie’s fingers are under his ribs, it was pushing on the side of Trevor’s ribs.
Later, she was asked:
Can you indicate that into the stomach area? Okay. With fingers going under the ribs?---Yes.
Again, later, she said:
So for the benefit of the transcript, the witness has started with the fingers in the middle, moved them to the side and then you’re saying they’re right around the back now, are they?---They’re still on the stomach.
On the – they’re – the fingers are still on the stomach, are they?---Yes.
Evidence was then given by an expert paediatrician, Dr Judith Bragg, who examined Trevor at the Child at Risk Unit of the Canberra Hospital. She gave her evidence in detail about the way in which such injuries, as the rib fractures, could have occurred. She did that carefully and with helpful diagrams.
She said:
In infants, this is a common mechanism of fractures that we see in children, that the child is held around the chest with the thumbs to the front of the chest, fingers to the back. So this is the vertebra [the doctor was pointing to the vertebra on the diagram]. And the chest is compressed. And under the circumstances, you get fractures as a result of stress around these areas. And you get fractures as the vertebra are pushed forward and the – what we call the lateral process acts as a, sort of, fulcrum and cracks the ribs in the paravertebral area.
She was then asked:
You’ve given evidence that Trevor had fractures on both sides of the rib cage. Does the fact that there are fractures on both sides have any significance?---Yes. That’s why it leads to the conclusion that this was the mechanism of injury, that there was circumferential pressure because you have fractures on both sides, multiple ribs. So it would be very unlikely to have a lot of single blows landing on a baby. We didn’t have a history of any car accident. This is the picture that we commonly see in young babies.
So to be clear, it’s your clinical opinion that the injuries were caused by a compression?---Yes.
And would you say that it’s far less likely that they were caused by the application of some other type of force, for example – or some other type of force, like an impact?---Certainly not consistent with an impact injury.
She was asked:
But when you used the words ‘anterior and posterior,’ you mean, there’s got to be force behind and in front and it’s the compression of the chest?---That’s correct.
Most of the questions and answers in relation to the evidence of Dr Bragg was in reference to the chest, even though, as I have made clear, most of the evidence, if not all of the evidence, of Ms Harber was in relation to the stomach. There was no evidence that Ms Harber gave of any reference to the chest, although, as I have indicated, there was some references to the stomach area.
Dr Bragg was then asked:
Now, in terms of the mechanism (f), he’s [that is, Associate Professor Munns] been asked, ‘Are you able to determine the cause or likely cause of any of the fractures you’ve identified? So, please indicate as accurately as you’re able your opinion as to the like cause.’ He says, ‘The most likely cause of the rib fractures is the chest behind compressed from behind.’ Chest compression is certainly something you’ve made clear is what is caused there. Are you able to assist with [the] understanding what that would mean in terms of ‘from behind’? It seems to me it could be in front or behind, depending on – as provided there’s equal sides - - -
I said:
Compression has to be from both doesn’t it?
And the question continued:
Well, that’s right?---Now, I’m not quite sure what he means by that. And I think I’d to ask him what he meant.
The evidence then returned to Dr Bragg’s opinion. She was asked:
If someone was to hold the child and put their thumbs down and depress with considerable force, would that - - -?---Around the chest.
Around the chest, with the thumbs going under the ribs?---You mean below the ribs or - - -
I’ll withdraw that. I’ll put it again. If someone was to hold the child and, with their thumbs, press down into the chest with considerable force, would this cause this type of injury?---Yes.
She was then asked:
If sufficient force was applied to make a baby vomit, would that be a sufficient degree of force to cause cracking of the ribs?---If the pressure, yes, is applied around the chest. On the abdomen, I’d be surprised if you could. It wouldn’t make any sense to press on the abdomen and have a fracture of the ribs. The pressure would have to be applied to the chest.
The doctor was then asked:
[T]hat she’d [that is, Ms Harber had] observed the father place both hands on the baby’s stomach and chest and press down really hard so the baby would vomit up his bottle. Did you recall - - -?---Yes.
And so you’ve recorded what was reported to you?---Yes.
Now, I just want to be clear about this: what you were told was that – the scenario that you asked to accept, if you like, for consistency purposes was pressing down really hard on the chest and the stomach?---Yes.
And as I understand your evidence with respect to the abdomen and pushing on the abdomen, really the issue is chest compression here not stomach compression, so to speak?---Yes.
The submission was made that, in the circumstances, the evidence of Ms Harber was all about compression, pressure, or pushing on the stomach. That was, to some extent, reinforced by references to “under the ribs”, because, clearly, as a matter of anatomy, one could only get one’s fingers or thumbs – and the evidence varied from time to time – under the ribs from the stomach. That could not occur while pressing on the chest.
Dr Bragg was not, perhaps, asked as clearly about whether compression of the stomach could cause the fractures that she had discovered in Trevor. But it seems to me, from the last two passages to which I have referred, that it was pretty clear to me that Dr Bragg was making a clear distinction between compression of the chest, which could and likely did cause the fractures to Trevor, and pressure on the stomach (or abdomen).
It was submitted by the prosecution that, in a small baby, the distinction between the stomach and the chest is one that would be hard to make, particularly if one was having a fleeting or distant view of the contact between, in this case, Mr Schofield and Trevor. There would be, it was put, only a few millimetres difference between what was the stomach and was the chest.
However, it was stark, in my reading of the transcript, that Ms Harber’s references were, at all times, to the stomach, and they were in the context where it was clear that she understood the difference between the stomach and the ribs or the chest. The word “chest” was, so far as I can tell in the time available to me, not used during the whole of her evidence. It was certainly not suggested to her that the compression was higher than the stomach or included the ribs, and that the compression, at any time, may have been of the ribs.
In any event, that would be inconsistent with the particular incident that is referred to and is the subject of the particulars, namely, an incident where the fingers (or thumbs) went underneath the ribs, which it seems to me is only possible if, consistently with Ms Harber’s evidence, the pressure was being applied to the stomach.
In the circumstances, it seems to me that Dr Bragg’s evidence is clear; the compression has to be against the chest, compressing the front of the chest with the back of the chest, either by the hands around the chest area or from the front or the back against some hard object. There was some evidence about whether that was possible when the child was lying on a mattress.
In all the circumstances, it seems to me, taking the test for the evidence that is set out in Doney v The Queen at the highest, there is no evidence here to suggest that on the evidence given by Ms Harber, that there was any compression on the chest of Trevor. Therefore, there is no evidence that can sustain a case of assault occasioning actual bodily harm.
Accordingly, I will direct that there be a verdict of acquittal in relation to that count on the indictment.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 13 December 2013
Counsel for the Applicant: Mr A Williamson
Solicitor for the Applicant: Director of Public Prosecutions (ACT)
Counsel for the Respondent: Mr A Hopkins
Solicitor for the Respondent: Darryl Perkins Solicitors
Date of hearing: 20-21 November 2013
Date of judgment: 21 November 2013
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