R v Macaskill (No 2)

R v MACASKILL
[2001] SASC 449
Court of Criminal Appeal: Doyle CJ, Nyland and Besanko JJ

DOYLE CJ: I would allow the appeal, set aside the conviction recorded in the Supreme Court, and order that there be a retrial of the appellant on the Information. I agree with the reasons given by Nyland J.
NYLAND J: This is an appeal against conviction and sentence. The appellant was found guilty by verdict of the jury of the unlawful killing of her daughter, Crystal Hayes, on 24 September 1999. Crystal was aged approximately three months at the date of her death. The prosecution case was that Crystal died as a result of hypoxic and ischemic injury to the brain from inflicted head injury and that the most likely cause of that injury was shaking or shaking coupled with some form of impact. The prosecution alleged that Crystal sustained her injuries some time after about 9 am on 24 September 1999 while in the sole care of the appellant and in all likelihood much later that day.
Travis Hayes is the natural father of Crystal Hayes. At the relevant time he was residing with the appellant. The evidence established that Hayes left the home some time between 8.30 and 9.30 am on 24 September 1999. It was common ground that thereafter the appellant was the only person to have contact with the child until about 7.30 pm when a friend, Cheryl Smith, found Crystal in her cot, ostensibly unconscious.
Crystal was taken to the Lyell McEwin Hospital and shortly afterwards transferred to the Women’s and Children’s Hospital where she was treated by Dr Keeley. Dr Keeley expressed the opinion that Crystal was suffering from shaken baby syndrome. Crystal was eventually declared brain dead on 26 September 1999 and the ventilator was discontinued on 27 September 1999.
Professor Byard, who carried out the postmortem on Crystal, considered that the cause of death was hypoxic and ischemic damage to the brain from an inflicted head injury the most likely cause of which was severe shaking.
The prosecution case was that after the injuries were inflicted the observable effect on the child would have been obvious. Dr Keeley considered that there would have been immediate unconsciousness. Professor Byard expressed the view that, given the severity of the injury, the child would probably be unconscious, if not straight away, within several hours of injury. He would have expected Crystal to have been stuporous four hours after injury.
Hayes was a prosecution witness at trial. He denied inflicting any injuries to Crystal that morning. He said that he woke up to hear Crystal crying. He got up and tried to fix her or make her comfortable in her pram and to make her a bottle. He said the appellant woke up and told him “to fuck off”. He said that he picked Crystal up and put her on her side and she screamed some more and it was at that stage that he was told to go. He said that he picked Crystal up from beneath the arm pits because she was on her back and he turned her on to her side. He said that she was still in her pram. As far as he knew she did not hit her head on anything. After the argument with the appellant he walked out of the house and went to the home of a woman called Anne French who was the mother of a friend. He remained there until about 6.30 pm. He arrived back at the house at about 7 pm.
The appellant did not give evidence at the trial but the video tape of her police interview was played to the jury. In that interview she said that she had woken up at about 8.15 am and heard Crystal screaming and she saw Hayes trying to shove a dummy into her mouth. The appellant said that Crystal looked very tired at that stage. She later tried to feed Crystal but she would not take her feed. The appellant went to an appointment at FAYS (Family and Youth Services) at about 11 am to arrange some financial assistance for food. The appellant told the police that while she was waiting at their office Crystal screamed a little bit which she thought was due to very bad reflux.
She said that she returned home at about 2.30 or 2.45 pm. She rang her friend, Cheryl Smith, straight away. Cheryl Smith thought the call was made at about 12 noon or 12.30 pm but the telephone records indicated that the call was probably made at 1.19 pm. Cheryl Smith was aware that Crystal had feeding problems and during the call she asked how Crystal was and the appellant said she was okay. Cheryl recalled the appellant mentioning that Travis had upset Crystal and they discussed Crystal’s problems with feeding. Cheryl had helped with feeding Crystal in the past and an arrangement was made with Cheryl to come over after dinner to assist. The appellant then put Crystal down to sleep and had a nap herself. She woke at about 7.10 pm. At that stage Crystal was still in her pram asleep. At about the same time Hayes arrived home. Cheryl Smith arrived 15 or 20 minutes later with her partner and her two children. Ms Smith went to check on Crystal who was in a room at the back of the house. She said that when she picked Crystal up she was like a rag doll. She appeared unconscious. A friend with a nursing background was called, following which Crystal was taken to hospital by ambulance.
The appellant said she did not see Hayes strike or shake Crystal that morning but said he had been violent towards her, that is, the appellant, in the past. She agreed that in the 24 hours prior to Crystal being admitted to hospital, only she and Hayes had custody of her.
Hayes was initially jointly charged with the appellant with offences relating to Crystal. There was no evidence given in the trial as to the exact nature of those charges but it appears that the proceedings against Hayes were later discontinued. The information filed in court charged the appellant alone with the crime of manslaughter. The prosecution case was that the appellant had alone inflicted the injuries on Crystal.
Much of the trial was taken up with the medical evidence concerning the possible cause of the child’s injuries. It was not suggested that the injuries were accidentally sustained but the time frame within which they might have been inflicted was a crucial matter. For present purposes, however, it is unnecessary to canvass the medical evidence in any detail as the prosecutor, in the course of argument with respect to an unsuccessful no case application by the defence, conceded that there was evidence before the court which left open the possibility that the injury to the child had been sustained before 8.30 or 9 am when Hayes left the house. On that basis, Mr McEwen, who was counsel for the appellant both at the trial and on the hearing of the appeal, argued that it was open to the jury to conclude that Hayes was solely responsible for the injuries to the child or had contributed to them, together with the appellant.
Mr McEwen submitted that on that basis Hayes was in the position of an accomplice. That imposed a mandatory obligation upon the judge to warn the jury against the danger of acting upon his evidence in the absence of corroboration. Although the defence case raised the possibility of Hayes being solely responsible for the crime, rather than jointly with the appellant, Mr McEwen submitted that he was a particeps criminis as discussed in Davies v DPP [1954] AC 378. Davies was a decision of the House of Lords which considered an appeal with respect to a charge of murder. A group of youths including the appellant had attacked another group, one of whom died of a stab wound inflicted with a knife. The appellant was the only one of his group to be convicted. Another member of the appellant’s group was initially charged with murder but subsequently no evidence was tendered against him and he was convicted of common assault. He gave evidence at the trial as to an admission by the appellant as to the use of a knife by him, but the judge did not warn the jury of the danger of accepting his evidence without corroboration. In determining whether a warning had been required, the court considered the proper construction of the word “accomplice”. Lord Simonds LC said (at 400):
“There is in the authorities no formal definition of the term ‘accomplice’: and your Lordships are forced to deduce a meaning for the word from the cases in which X, Y and Z have been held to be, or held liable to be treated as, accomplices. On the cases it would appear that the following persons, if called as witnesses for the prosecution, have been treated as falling within the category:-
(1)On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours). This is surely the natural and primary meaning of the term ‘accomplice’.”
He then went on to refer to receivers who had been held to be the accomplices of thieves and cases in which the court was concerned with a system and then continued (at 401 and 402):
“My Lords, I have tried to define the term ‘accomplice’. The branch of the definition relevant to this case is that which covers ‘participes criminis’ in respect of the actual crime charged, ‘whether as principals or accessories before or after ‘the fact’. But, it may reasonably be asked, who is to decide, or how is it to be decided, whether a particular witness was a ‘particeps criminis’ in the case in hand? In many or most cases this question answers itself, or, to be more exact, is answered by the witness in question himself, by confessing to participation, by pleading guilty to it, or by being convicted of it. But it is indisputable that there are witnesses outside these straightforward categories, in respect of whom the answer has to be sought elsewhere. The witnesses concerned may never have confessed, or may never have been arraigned or put on trial, in respect of the crime involved. Such cases fall into two classes. In the first, the judge can properly rule that there is no evidence that the witness was, what I will, for short, call a participant. The present case, in my view, happens to fall within this class, and can be decided on that narrow ground. But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a ‘participant’. In such a case the issue of ‘accomplice vel non’ is for the jury’s decision: and a judge should direct them that if they consider on the evidence that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so if, after that warning, they still think fit to do so.”
Mr McEwen argued that in this case it was open to the jury to find that Hayes was a criminal participant which would attract the need for the mandatory warning and urged the court to adopt that approach rather than that taken by the Victorian Court of Criminal Appeal in Thomas (1988) 40 A Crim R 89. Thomas was charged with the crime of murder. A witness called Bell had been with him shortly before the killing and Bell had been involved in an argument with the deceased. The trial judge declined to direct the jury that Bell was an accomplice.
On appeal the court held that an accomplice was a party to and charged with the same crime as a person accused either as principal accessory or aider and abettor. As there was no evidence that the murder was committed by more than one person and no evidence upon which Bell could be said to be an accomplice, the trial judge had an unfettered discretion as to what, if anything, he should say about his evidence. In the course of his reasons, however, Gray J (with whom Murphy and Nathan JJ agreed) referred to what he considered to be the unsatisfactory rigidity of the law in this area. He commented that although Bell was not strictly speaking an accomplice, his position was calculated to motivate him to understate his own involvement and to emphasise the involvement of Thomas. He was therefore subject to the very influence which gave rise to the requirement of a warning.
DPP v Faure [1993] 2 VR 497, is another decision of the Victorian Court of Criminal Appeal. In that case, the appellant had been convicted of murder. The prosecution case was that the motive for the killing arose from a dispute between the deceased on the one hand and the appellant and his wife on the other. The appellant’s wife was the main witness against him at the trial and the case was conducted on the basis that it was either the appellant or his wife who had killed the deceased. The court, allowing the appeal, held that although the appellant’s wife was not a witness who was characterised as an accomplice, nevertheless she was a witness in respect of whom a warning, similar to that given in respect of accomplices, should have been given. Hampel J (with whom Smith and Phillips JJ agreed) referred to a combination of factors which provided the need for a warning. He referred to a number of earlier decisions including Bromley v R (1989) 161 CLR 315, Longman v R (1989) 168 CLR 79 and Dominican v R (1992) 173 CLR 555. He concluded that the wife was in that general class of witnesses about whom a warning should be given to avoid a miscarriage of justice. He went on to say (at 504):
“While no particular formula is appropriate, a warning in a case such as the present should be one which is given by way of a direction to the jury from the trial judge and with the force of his authority. It should be more than a general comment about the need to scrutinise evidence of important witnesses carefully. It is not sufficient that counsel have put the matters in argument which raise the considerations relevant to the assessment of tainted witnesses and that such arguments are repeated by the judge. Nor is it sufficient to say that care and careful scrutiny are desirable as a matter of commonsense.
The warning should include a reference by the judge to matters of significance which are relevant to the assessment of the evidence of such witnesses. The jury’s attention should be drawn to the dangers inherent in such evidence and at least to the desirability of, if not the need for, the search for supporting material.
What warning is appropriate and adequate depends on the circumstances of the particular case. The stronger the warning given with the authority of the judge and the more it deals with the specific factors which affect the evidence of the tainted or potentially unreliable witness, the more confidence exists that the jury has considered those matters in reaching its verdict and the further any risk of a miscarriage of justice is reduced. That, after all, is a most important consideration and one which has moved the courts to extend the requirement of judicial warnings beyond the cases involving accomplices to cases involving prison informers, identification evidence, disputed confessions by people in custody to police officers, mentally disabled witnesses and other cases in which the witness is significantly tainted or for some other reason the evidence is inherently unreliable.”
Although on the hearing of the appeal Mr McEwen submitted that it was open to the jury to conclude that Hayes was solely responsible for the injuries to the child, or had contributed to them together with the appellant, on my understanding of the matter, that was not how the case was presented to the jury. The case presented at trial was that one or other of these people had been responsible for the crime. As Mr McEwen said in his closing address, when referring to the earlier joint charge, “there was never going to be evidence that would establish that both these parents ... took hold of this baby and shook and impacted it to death”. That is why the judge told the jury that it must have been one or the other who was responsible. As the case was presented on the basis that either Hayes or the appellant was the offender, I do not think that Hayes could properly be characterised as a “participant” in the crime, which would have required the judge to give the mandatory accomplice warning.
Nevertheless, the facts of this matter, as was the case in Faure, required the judge to give the jury a warning as to the need carefully to consider Hayes’ evidence. Hayes was an essential witness in the prosecution case. It was not open to the jury to convict the appellant unless they were satisfied beyond reasonable doubt that Hayes had told the truth when he said he did not injure the child that morning. Although in evidence Hayes did not seek to implicate the appellant in the commission of the offence, there were a number of matters which made him a potentially unreliable witness.
Hayes was one of only two people with access to Crystal at the relevant time. He therefore had an obvious motive to exculpate himself. The day following Crystal’s admission to hospital, he said that “it might have been my fault because I might have hit her head on the pram”. There were inconsistencies arising out of his evidence as to how in fact he had lifted Crystal from her pram. He had an aggressive personality and had been violent to the appellant in the past. Although there was no evidence of prior violence directed to the child, he admitted in cross-examination that he had anger management problems and that there were times when he would “lose it”. He also admitted that he was “pissed off” when he left the house that morning.
There was also evidence of prior injuries to Crystal and the Crown case was presented on the basis that there was no evidence to distinguish whether those prior injuries had been inflicted by Travis Hayes or the appellant or both.
In assessing the evidence of Hayes, the jury was also entitled to have regard to the fact that he had been previously charged with offences relating to Crystal’s injuries. The learned trial judge referred to those charges and said:
“You heard in evidence that he was originally charged with offences in relation to Crystal’s injuries. ... Those charges were later withdrawn. The circumstances in which they were withdrawn have not been disclosed in evidence and you cannot speculate as to that. In any event, those circumstances are of no great relevance in considering what you make of his evidence. What weight you give to his evidence is principally to be judged by your assessment of him in the witness box and your evaluation of his evidence in the context of the evidence as a whole.
As I’ve said, you are not to speculate as to the reasons why charges against him were not proceeded with. That fact does not give his evidence any more credibility or any more weight than what you are prepared to attribute to it on your own assessment of him having heard his evidence from the witness box during the course of the trial.”
The learned judge was correct when he directed the jury that they were not to speculate as to the reasons why the charges were withdrawn and their withdrawal could not make Hayes a more credible witness. In directing the jury in that way, however, the learned trial judge effectively suggested that the fact of those charges could be completely ignored when assessing Hayes’ credibility as a witness. If anything, the fact that Hayes had initially been charged with offences relating to Crystal’s injuries highlighted the need for the jury to take a very cautious approach to the consideration of his evidence as he had a significant interest in the outcome of the proceedings and his evidence may have been tailored to avoid being implicated in the events which led to Crystal’s death.
When summarising the defence case, the learned trial judge referred to defence counsel’s submission that “the perpetrator was unquestionably Travis Hayes” and the reasons given by the defence as to why the jury should accept that to be so, such as the evidence of Hayes about handling the baby that morning, his anger management problems, his past violence towards the appellant, and Hayes’ denial, which on the defence case had been proved untrue, as to how far he had lifted the child from her pram. The judge also directed the jury that “... the fact that, as I’ve put it, the finger of guilt has been pointed firmly in (Hayes’) direction by Ms Macaskill and her counsel means that you must, as a matter of ordinary commonsense, carefully consider his evidence. It must have been one or the other who was responsible for this child’s death. In those circumstances you should not accept the evidence of Travis Hayes unless, after the most anxious consideration, and bearing in mind all the rest of the evidence in this case, you have sufficient confidence in it to place the reliance on it that would be necessary to regard it as both truthful and reliable beyond reasonable doubt”.

On the facts of this case, Hayes was the only other contender for the commission of this crime. In that circumstance, it was not enough for the judge only to caution the jury in the context of the defence case and the arguments put by defence counsel in the course of his closing address. The judge was required to give a very strong warning, supported by the weight of judicial authority about the need to scrutinise Hayes’ evidence with particular care and drawing the jury’s attention to those matters which made Hayes a potentially unreliable witness, such as the fact that he had initially faced charges, his obvious motive to exculpate himself, and the other matters which I have previously mentioned.
The failure of the learned trial judge to give an adequate warning in the circumstances of this case, in my opinion, gives rise to a significant risk of a miscarriage of justice. I consider that the appellant has therefore lost the chance of an acquittal reasonably open to her. On that basis the appeal should be allowed.
There are, however, two further grounds of appeal. The second ground of appeal relates to the onus of proof. Mr McEwen submitted that the overall effect of the summing up left it open to the jury to make a choice between the appellant and Hayes as having inflicted the fatal injuries and thereby invited conviction by a process of elimination. The third ground of appeal is closely linked to the second and complains of the direction given by the judge in his concluding remarks that “if you were satisfied that Travis Hayes did not do it, you could safely convict Ms Macaskill”. Mr McEwen complained that in directing the jury in that way, the judge had withdrawn from the jury the consideration of an essential ingredient of the offence of manslaughter, that is, that a reasonable person would have realised that the act or acts which caused the injury exposed Crystal to an appreciable risk of serious injury.
The directions given by the trial judge as to these matters must, however, be looked at in the light of all of the circumstances of the case. The prosecution case rested firmly on the acceptance by the jury of the evidence of Hayes that he had not done anything to the child to cause her an injury on the day in question. The judge made it clear to the jury that before they could make a finding of guilt with respect to the appellant, there had to be an acceptance of the evidence of Hayes that he did not injure the child. He explained to the jury that if there was a reasonable possibility that Travis Hayes was the culprit, they were obliged to acquit. The undisputed evidence at the trial was that only the appellant and Hayes had access to the child at the relevant time and therefore one or other of them had to be responsible for her injuries. As a matter of logic, if the jury were satisfied that Hayes had not caused any injury to the child, that inevitably left the jury in the position in which they could be satisfied as to the guilt of the appellant.
In the earlier part of his summing up, the learned trial judge explained the elements of the offence to the jury in some detail which he summarised by saying:
“... the Crown must prove:
One, that Crystal died as a result of an act or acts of her mother, Ms Macaskill, in this case the act of violently shaking Crystal, or a combination of shaking and a blow to her head.
Two, that the act or acts of Ms Macaskill were unlawful in that they amounted to an assault in the sense in which I have defined it.
Three, that the circumstances in which the assault was committed satisfy you that the act of the assault was a dangerous act, in that a reasonable person would have realised that it exposed Crystal to an appreciable risk of serious injury.”
At the end of his summing up, the judge did not repeat the elements which had to be proved when he said “if you were satisfied that Travis Hayes did not do it you can safely convict Ms Macaskill”. It might have been helpful at that point for the learned trial judge to have reminded the jury that, in addition to being satisfied that the appellant had inflicted the injuries, they had also to be satisfied that a reasonable person would have realised that the act or acts which caused those injuries exposed Crystal to an appreciable risk of serious injury. I think, however, that the judge’s remarks would have been well understood by the jury to be taken against the background of the earlier directions with respect to the onus of proof and the elements of the offence. The real issue in this case related to the identity of the offender. In my opinion, neither the second or third grounds of appeal have been made out.
For the reasons I have mentioned, however, there was an inadequate warning given to the jury with respect to the evidence of Hayes. On that basis I consider the appeal should be allowed. The conviction should be quashed and there be an order for re-trial. In view of the order for a re-trial it is unnecessary to consider the appeal against sentence.
BESANKO J: I agree with the orders proposed by Nyland J for the reasons she has given.

[2001] SASC 449

21 December 2001