R v Macaskill No. Sccrm-00-257

R v MACASKILL
[2003] SASC 61
Trial by Judge Alone
Nyland J
The Charge

The accused is charged on information with the crime of manslaughter: s 13 Criminal Law Consolidation Act 1935. The particulars of the charge against her are that on 24 September 1999 at Salisbury Downs or another place, she unlawfully killed Crystal Hayes. The accused pleaded not guilty to the charge against her. The accused was initially presented for trial by jury and a verdict of guilty was returned against her. The accused appealed against that conviction. On 21 December 2001, the Court of Criminal Appeal quashed the conviction and ordered a re-trial. The accused thereafter elected, pursuant to s 7(1) Juries Act 1927 (SA) to be tried by judge alone.
Onus of Proof
In considering the issues which arise for determination, I have at all times borne in mind that the accused does not have to prove her innocence. The accused is to be presumed not guilty of the charge against her unless and until I am satisfied of her guilt beyond reasonable doubt. It is for the prosecution to prove that the accused is guilty of the charge against her and nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt or to show that the accused is probably guilty. The requirement of proof beyond reasonable doubt also applies to each and every element of the offence charged against the accused.
If, in the course of these reasons, I indicate that I find something proved or I am satisfied about something, that means that I have done so beyond reasonable doubt.
Witnesses
The following witnesses gave evidence at the trial:
Travis Hayes - partner of the accused and father of Crystal.
Ann French – Mrs French knew both the accused and Hayes. Her son, Will, was a close friend of Hayes and Hayes visited her house several times a week.
Samantha French - daughter of Ann French.
Cheryl Smith - close friend of the accused. At the relevant time Mrs Smith had known the accused for about two years, although for a period she lost contact. She renewed a close association with the accused when Crystal was about three weeks old and regularly assisted the accused in the care of Crystal.
Janet Hasler - neighbour of the accused and nurse. Ms Hasler was summoned to the accused’s house to help when Mrs Smith found Crystal in a seriously ill condition on the evening of 24 September 1999.
Tammy Sims - neighbour of the accused.
Shirley Gower – Family and Youth Services (FAYS) Community Support Worker.
Gareth Kahl – was involved with the Para Districts Men’s Support Group. The group assisted men in dealing with anger and other emotional problems. He took Hayes to the group on a number of occasions.
Craig Winton - ambulance officer. Mr Winton attended at the accused’s home with another ambulance officer, John Graham, on the evening of 24 September 1999 and subsequently transported Crystal to hospital. Mr Winton also gave evidence at the earlier trial and the transcript of his evidence from that trial was admitted in evidence (P6). Mr Graham did not give evidence before me but the transcript of his evidence from the earlier trial was admitted at this trial (P5).
Guy England - Cheryl Smith’s partner. Mr England talked to Hayes about domestic violence issues and suggested the men’s group to Hayes.
Megan Foster - administrative officer for Telstra. She produced records for telephone calls to and from the accused’s home on 24 September 1999.
Margaret Heath - registered nurse working at Child and Youth Health. She gave the accused advice about Crystal’s feeding problems.
Malcolm Boyd – clinical nurse working at Child and Youth Health who saw Crystal with the accused on 9 August 1999.
Margaret Blomeley – a nurse at the Lyell McEwin Hospital. She was on duty when Crystal was admitted to the hospital on the evening of 24 September 1999.
Gillian Lewis-Coles - social worker at the Women’s and Children’s Hospital. She saw the accused on the evening of 26 September 1999 when Crystal was still on life support.
Richard Murphy - police officer at the Child and Family Investigation Unit at the Elizabeth CIB. He was the investigating officer who interviewed the accused on 25 September 1999.
In addition to the above witnesses, the following medical witnesses gave evidence:
Dr Belinda Leigh - Lyell McEwin Hospital Emergency Room doctor. Dr Leigh was on duty in the emergency room when Crystal was admitted on 24 September 1999.
Dr Drago Bratkovic - Registrar at the Woman’s and Children’s Hospital who, in conjunction with Dr Keeley, provided care to Crystal.
Dr Richard Keeley - Consultant specialist at the Women’s and Children’s Hospital. He examined Crystal soon after her admission to that hospital on 24 September 1999.
Professor Roger Byard - Specialist Forensic Pathologist at the Forensic Science Centre. Professor Byard performed an autopsy on the body of Crystal on 28 September 1999. I was also provided with a portion of the transcript of evidence given by Prof Byard at the earlier trial (D26).
Professor Peter Blumberg - Neuropathologist at the Institute of Medical and Veterinary Science. He examined the brain and spinal cord of Crystal in October 1999. I was also provided with the transcript of Professor Blumberg’s evidence from the earlier trial (D14).
Dr John Hilton – Director of the New South Wales Department of Forensic Medicine. Dr Hilton was consulted by the defence and gave expert evidence on their behalf.
In addition to the witnesses who gave oral evidence about these matters, the prosecution tendered the following statements of witnesses which were admitted in evidence and without the requirement of them being called.
Statement of Zacharias Baran, legally qualified medical practitioner dated 4 November 1999 (P28).
Statement of Judith Ann Jaensch, legally qualified medical practitioner specialising in paediatrics, dated 26 October 1999 (P29).
Statement of Guiseppe Barbaro, legally qualified medical practitioner, dated 29 October 1999 (P30).
Statement of Lee-Anne Myers, child protection team leader, dated 23 November 1999 (P31).
Accused does not give evidence
The accused, however, elected to give no evidence. The accused was perfectly entitled to take that course. As that was her right, no adverse inference can or should be drawn against her for exercising the right given to her by law. As, however, she has not given evidence on oath before me, I have not had the opportunity to assess her in the same way as the other witnesses in the case.
The accused was, however, interviewed by the police at 6.53 pm on Saturday, 25 September 1999. That interview was recorded on video (Exhibit P12). I can rely on the evidence of that interview to the extent that I can be satisfied that the accused made those statements to the police. It does not follow, however, that when an accused person is questioned by the police that what he or she tells them is true in whole or in part.
The Prosecution case
The prosecution case against the accused is that Crystal died of hypoxic ischaemic damage to the brain from an inflicted head injury, the most likely cause of which was shaking or shaking coupled with some form of impact and that the accused inflicted that injury.
In order to find the accused guilty of the crime of manslaughter, the prosecution must prove that:
1.The accused killed Crystal Hayes, that is that Crystal died as a result of an act or acts of the accused, which in this case is alleged to be shaking or shaking/impact.
2.That the act or acts of the accused were unlawful, that is, without any justification.
3.That the act or acts were dangerous. An act for this purpose is dangerous if a reasonable person in the position of the accused would have realised that his/her actions exposed the child to an appreciable risk of serious injury.
If all three elements are proved beyond reasonable doubt, the fact that Crystal’s death was neither contemplated nor desired by the accused would not be an answer to the charge.
Circumstantial evidence
The prosecution case against the accused is circumstantial as there is no direct evidence of any person having witnessed the alleged offence. Instead the prosecution relies upon evidence of circumstances surrounding the alleged offence from which I am asked to infer beyond reasonable doubt that the accused was the person who committed it. It is therefore necessary for me to decide what facts I can accept as established by the evidence and then consider what inference or inferences I am prepared to draw from the facts which I find established.
In considering whether I accept that a particular fact has been established I am entitled to take into account the whole of the evidence. In considering the circumstantial evidence, however, I must have regard to the possibility that the evidence does not necessarily point to guilt. I am not able to return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the accused is guilty of the offence. In other words, before I can be satisfied that the accused is guilty, I must be satisfied not only that her guilt is a rational inference, but that it is the only rational inference that the circumstances I find proved enables me to draw.
The Defence case
The defence case is that there is a reasonable possibility on the evidence that Travis Hayes inflicted the injury to Crystal. There is therefore a rational hypothesis consistent with innocence and the accused should be acquitted. The defence further submitted that even if I found the accused had committed an unlawful act with respect to Crystal, the prosecution had failed to prove beyond reasonable doubt that any such act was dangerous.
The credibility of the witnesses
Travis Hayes was a critical witness in the prosecution case and it will be necessary to examine his evidence in some detail. I will therefore address his credibility later in these reasons. I indicate, however, that, as far as the remainder of the witnesses were concerned, I thought each of them did the best he/she could to give truthful evidence. Some witnesses had difficulty in recalling details of some of the relevant events but, in my view, that was understandable given the circumstances and lapse of time since Crystal’s death. I have indicated in a discussion of the evidence of the various witnesses those matters upon which I thought a particular witness was mistaken or gave evidence upon which I could not rely.
Background:
In order to determine what happened to Crystal on 24 September 1999, it is necessary to consider the evidence relating to her health prior to that date and also some of the evidence concerned with the relationship between Hayes and the accused. Unless otherwise indicated, the following history of relevant events represent findings as to facts.
The accused was the mother of Crystal Hayes and Travis Hayes (Hayes) was her father. Crystal was born prematurely at the Modbury Hospital on 15 June 1999. She was approximately three months old at the date of her death.
Crystal’s feeding problems
Crystal was discharged from Modbury Hospital on 6 July 1999. Throughout her short life, Crystal suffered from a number of health problems, most of which related to feeding difficulties.
On 12 July 1999, the accused took Crystal to see Dr Baran, a medical practitioner practising at Paralowie. She was presented by the accused for feeding difficulties, which the accused reported had started when she had returned home from hospital. Dr Baran provided a script for Olac which was a lactose free formula.
On 15 July 1999, Margaret Heath, a registered nurse in the employ of Child and Youth Health spoke to the accused on the telephone as a result of a referral by the midwife at the Modbury Hospital. Ms Heath asked the accused how she was getting on with the baby. The accused described Crystal continuing to have feeding problems. Ms Heath gave the accused some advice and suggested that she return to see Dr Baran.
The accused took Crystal back to see Dr Baran on 27 July 1999. Crystal was on Infasoy at that visit. She had only gained 120 gms in three weeks, which Dr Baran said indicated a failure to thrive. Dr Baran therefore referred the accused to Dr Jaensch, a paediatrician.
Dr Jaensch saw Crystal on 27 July 1999. She described her as looking “lean and scrawny”. She said she looked tense and unsettled. She responded to handling and gentle talking quite well. Her skin was a bit dry but she did not have any rashes or bruises. The tone was mildly increased in her arms and legs, which can indicate that the baby is a bit tense. Dr Jaensch decided to admit Crystal to the Modbury Hospital for failure to thrive. There were no indications of trauma, bruising or ill-treatment. Underweight was the only concern. Crystal was admitted to Modbury Hospital on 28 July 1999 where she remained until 3 August. Dr Jaensch said that while Crystal was at Modbury Hospital there was no indication of any metabolic disease that would indicate any reason for failure to thrive or low weight gain.
The accused did not keep two follow-up appointments, but Dr Jaensch spoke to the accused on the phone on 1 September 1999. The accused explained that she had been ill and for that reason had not attended. The accused said that Crystal was doing well, sucking strongly and gaining weight.
On 9 August 1999, Mr Malcolm Boyd, a clinical nurse employed by Child and Youth Health, saw the accused and Crystal at the clinic at James Street, Salisbury. There was some discussion about feeding Crystal and Mr Boyd provided the accused with a pamphlet entitled Never Shake a Baby. Mr Boyd did not conduct a physical examination of Crystal but he weighed her without her clothes on and did not observe any signs of bruising. He agreed that the pamphlet Never Shake a Baby was included with other information pamphlets which were given to parents of young babies as standard procedure.
On 16 August 1999, Margaret Heath again saw the accused and Crystal at the Salisbury Downs West Child Health Centre. There was a further discussion about feeding problems. The accused indicated that in feeding Crystal there were a few spills but no vomiting. Ms Heath thought it looked as if the baby had reflux and she referred the accused back to Dr Baran.
On 19 August 1999, the accused rang her friend Cheryl Smith and sought her assistance to settle Crystal. The accused told Mrs Smith that Crystal “wouldn’t feed and was very grizzly”.
On 25 August 1999, the accused again took Crystal to see Dr Baran. The accused told Dr Baran that Crystal was still spilling feeds and vomiting. He prescribed some Prepulsid which aids in gastric emptying. This was the last occasion on which Dr Baran saw Crystal.
On 26 August 1999, the accused told Cheryl Smith on the telephone that Crystal had slept all night. Mrs Smith described this, that is Crystal’s sleeping, as unusual.
On 15 September 1999, the accused rang Mrs Smith twice and asked her to assist with Crystal. Mrs Smith went to the accused’s home to help. She said that Crystal was sick. She wouldn’t take a bottle. Mrs Smith described Crystal as lethargic. Mrs Smith rang Dr Barbaro for an appointment and then went with the accused and Crystal to see him.
Dr Barbaro found Crystal to be frail looking in appearance. He did not find any sign of bruising or swelling. He thought she was having “failure to thrive” syndrome. He described Crystal as looking fairly flat in general appearance. Weight loss was a concern plus the feeding problem expressed by the mother in the history. He arranged an appointment with Dr Sabato, a paediatrician on 16 September 1999.
On 19 September 1999, Tammy Simms, a neighbour, was playing with Crystal with a rattle. She said “… she didn’t really look at it. Her eyes were just rolling around in her head. She didn’t focus on it or anything and I put her dummy in her mouth and she didn’t want it and she kept spitting it out. Then Rebecca came and picked her up and held her for five, ten seconds, like a really quick second, and she kept grizzling and then Rebecca said ‘I’m not playing your stupid little games’ and then put her down again”.
On the afternoon of 23 September, Mrs French saw the accused and Hayes with Crystal at Hollywood Plaza. Mrs French said Crystal was screaming loudly and looked unwell. She was pale and inactive.
Mrs French further said that all the time Crystal looked “like a skeleton … and very undernourished”. She also recalled an occasion a couple of weeks before the meeting at Hollywood Plaza when she had observed a bruise on Crystal’s head although she could not remember its position.
Cheryl Smith assisted the accused in feeding Crystal on a number of occasions in addition to the specific dates referred to above. Mrs Smith described Crystal as a “difficult feeder”. She said it took a long time to feed her, sometimes two and a half hours. At times she was unsuccessful getting Crystal to drink. Crystal was not good at sucking the bottle and milk would come out of her mouth and sometimes she would vomit.
Hayes also referred in evidence to Crystal’s feeding problems. He said it was not easy to feed her as she would not keep her food down.
Other injuries
In addition to the evidence which established that Crystal had ongoing health difficulties arising out of her feeding problems, there was evidence that she had suffered a number of injuries prior to 24 September 1999. The evidence does not, however, establish who was responsible for those injuries. The post mortem examination disclosed that Crystal had old or chronic bleeds in the subdural spaces of her brain, and in the thoracic and lumbar region of her spine. These chronic bleeds were in the process of healing and it was estimated that they were about a week old. In addition Crystal was suffering from 11 fractures. These fractures were to her fourth, fifth and sixth left ribs, her left lower arm, her right lower tibia, her right upper tibia, the lower part of her left leg and the lower part of the left thigh bone. They also included greenstick fractures to her left upper arm, her right thigh bone and her left lower leg. The estimated age of these fractures ranged between three weeks and seven days, with not all of the fractures occurring at the same time.
The events of 24 September 1999
That brings me to 24 September 1999, which is the day on which Crystal was admitted to hospital in the seriously ill condition from which she never recovered. Hayes said in evidence that he left the house at about 8.30 am and did not return until the evening. Hayes left on account of an argument with the accused which involved Crystal. This incident is of crucial importance as, on the defence case, there is a reasonable possibility that it was at that time that Hayes inflicted the injury which ultimately led to Crystal’s death.
Travis Hayes
Hayes said that he went with the accused to Hollywood Plaza on the afternoon of 23 September 1999. Crystal “seemed okay” that day and evening. She was “just feeding like her normal … she either just wouldn’t feed or couldn’t keep it down”. He said that the accused put Crystal to bed in her pram which was at the end of the bed. On the morning of Friday, 24 September 1999 he was awoken by Crystal crying. He got up and went to comfort her. He said that Crystal was lying on her back. He picked her up underneath her arms about 10 or 15 cms out of the pram and turned her on her side. Crystal started to get louder when he put her down. He had hold of Crystal for about five seconds. He was “gentle” with her. He did not shake Crystal then or on any other occasion. The accused told him to “fuck off”. He left the house a few minutes later. He said he could still hear Crystal crying.
Hayes said he left the house at about 8.30 am and went to the home of Ann French where he arrived at about 9 or 9.30 am. He stayed there all day. He left at about 6.30 pm and arrived back home at about 7 pm. These times were confirmed by both Mrs French and her daughter Samantha. They also confirmed that Hayes did not leave the house during the day. Hayes said that when he arrived back at his house, the accused was sitting at the kitchen table having something to eat. He asked how Crystal was and the accused said that Crystal was in her room. He grabbed himself a drink and about five minutes later Cheryl Smith and Guy England arrived.

He said that Cheryl Smith went to Crystal’s room and returned almost immediately. He said Crystal was “white as a ghost and didn’t move or anything”. He was sent to get a next-door neighbour, Janet Hasler, as she was a nurse. Twenty minutes later the ambulance arrived and removed Crystal to hospital.
The accused’s record of interview
As the accused did not give evidence, the only information from the accused as to what occurred that day is contained in her interview with the police. The accused said that in the 24 hours prior to Crystal being taken to hospital, that only she and Hayes had custody of her. The accused went on to say (as taken from the transcript of the video recording, but edited by me):
“Q. So what you’re saying is she’s been all right.
A.She … has been all right. Wednesday she had a lot of complications with her feeding I mean because she was vomiting after her feeds, … I didn’t know what to do … because when she was up at the Modbury … I told her about her vomiting last time and they turned around and told me that if she did vomit any more or she did do any spills just to top her up again. And all day Wednesday every time that I fed her or even tried to top her up she would vomit it back up … Thursday Thursday morning Travis had her Thursday morning, I didn’t wake up until 8.30. I woke up to her screaming I don’t know what he done to her ... I turned around and I told him not to touch her again.
Q.What … morning are we talking about.
A.Thursday morning.
Q.So that’s two and a bit days ago.
A.Yep … we went out Thursday, we went and done some shopping, got her nappies …
Q.Was she OK then.
A.Yeah she was fine. Thursday night I put her to bed, she had a feed before she went to bed, she didn’t vomit that one up and that’s when I thought well she must be getting back on track with her feeds and yeah. … Friday morning … Friday morning she went to bed at about quarter past two, two thirty in the morning I gave her a feed, she was right with that feed … I woke up to her at about quarter past eight, I heard her screaming Travis … had her I actually seen him trying to shove the dummy back into her mouth again.
Q.Did you have a look at her when you got up.
A.… Friday morning?
Q.Yes.
A.Yes.
Q.How did she appear.
A.… She … looked like that she was very tired … she wasn’t - her nappy wasn’t wet at all … I checked her nappy, … she wasn’t wet, she wasn’t dirty. I tried to feed her she wouldn’t take her feed for me … and I had an appointment at 11 o’clock that morning with … FAYS …
Q.FAYS can you just say who that is.
A.Family and youth services … because I had to pay out so much on my rent this week I had to catch up on all that so that I could have a roof over my head they helped me out with some money so that I could have some food … it was about quarter past twelve I tried to feed her again and she still looked like that she was very tired she … looked like all she wanted to do was just sleep ...
Q.How did you know, how was her demeanour. Was she, bright, was she bright and alert.
A.No, no she, she was, she’s always she’s always she’s always alert but this no she wasn’t no she wasn’t herself.
Q.So what I’m trying to establish is that her present in her present condition in hospital she limp and unresponsive.
A.Yeah.
Q.Was she like that all that time.
A.Yes, yes, yes.
Q.… I’m saying you understood what I meant that she’s limp today and we’re talking about lunchtime yesterday.
A.Yeah.
Q.She was limp. Limp then.
A.No this would have been early in the morning she wasn’t anything like herself when I tried to feed her the second time. I wanted her so much to drink she just, she wouldn’t drink she you know, she sucked but she, yeah she would end up crying again and I keep moving the bottle around in her mouth for her to catch it on her tongue because she has got a problem with sucking I have to.
Q.Did you think about taking her to the doctor at that stage.
A.Well she’s done this before to me, she’ll drink, she won’t drink for a whole day and the next day she will have about seven to eight feeds she’ll catch up on what she did the last day before.
A.So what did you do when you got home from this outing.
A.I rang Cheryl straight away.
Q.What time was that.
A.It was about 2.30 or quarter to three.
Q.Cheryl is.
A.Cheryl is like a sister to me, she’s been very supportive about Crystal was probably about four weeks old and the first time that Cheryl saw her um but I was getting bashed by Travis at one stage and I got me and Crystal up to the phone box at Hollywood Plaza and I rang Cheryl to get her to come down to look after Crystal while I sorted Travis out and she came down and Travis ended up leaving for the night he came back the next morning and he thought that everything would be totally forgotten about and I think that he suspected that you know that I wouldn’t notice that anything has gone on.
Q.That was some time ago that your (sic) talking about.
Q.Yeah. About ten to three I went to sleep and I woke up and about ten past seven I went to the toilet.
Q.Where was Crystal during that.
A.She was in her pram asleep.
Q.Where was the pram.
A.In my bedroom up against my wardrobe, I heard a knock on the door Travis had come back, he asked me if he could have something to eat, I told him that he has to turn the gas on if he wanted something to eat and then about fifteen or twenty minutes later Cheryl arrived and she asked me where bubby was and I told her that she was in my room and she went down to Crystal’s room and I turned around and told her that she was up in my room and she went and picked her up and she brought Crystal out and Crystal was just like a rag doll she had no muscles she wouldn’t blink.
Q.Had she deteriorated from when you went to sleep.
A.Yes, yes. I shouldn’t of even gone to sleep, I should of …
Q.Now Crystal is currently at the Children’s Hospital isn’t she.
A.Yes.
Q.You’ve spoken to the doctors there.
A.Yes.
Q.And what have they told you.
A.They’ve told me that she’s had some kind of severe blow to the head, she’s had a brain haemorrhage there could be the possibility of her dying, they say that this was self inflicted or it was inflicted not self inflicted but they reckon that if she does pull through this that she may end up being blind she could be retarded. (crying)
Q.I will try not to be particularly long because I know that you’re under stress. Do you know what has caused this injury.
A.No, no.
Q.Have you got any idea what might [have] caused this injury.
A.Travis said to me, I asked Travis earlier on this afternoon what he did to her Friday morning, I told him to answer me honestly I don’t know if he answered me honestly, he said that he picked her up and I turned around and I asked him if she hit her head or if he hit her head and he said yes, I didn’t ask where I didn’t ask how hard.
Q.When you got up in the morning where was
A.Travis was with Crystal.
Q.Did you see anything that caused you any alarm at that stage.
A.I seen him, I seen him trying to shove the dummy into her mouth because she wouldn’t take it I thought that she might have been hungry so I was getting up to make a bottle and I turned around and I told him not to touch her and yeah I don’t know what he done before that, because sometime he will wake up first and apparently when I wake up apparently he will turn around and say that she’s been crying for an hour but if she had been crying for an hour why can’t he get up to her.
Q.Did you hear anything.
A.No.
Q.Before you got up to
A.I heard her screaming that’s what woke me up her scream, I know when because when she is getting hurt she tends to let out a cry as though she’s got her reflux, she gets very bad belly aches … sometimes in the middle of the night she can wake up screaming her lungs out just from belly aches but this was no belly ache, it was a constant screaming screaming.
Q.What did you think was the cause of that screaming.
A.Honestly I can’t tell you I do not know, the only thing I can say is that I saw him shoving the dummy back into her mouth and that’s just as I was waking up, I opened my eyes and he was shoving it into her mouth.
Q.Did you see him strike her or shake her or anything
A.No.
Q.Did you strike her or shake her or anything.
A.No.” (emphasis added)
Shirley Gower
Shirley Gower, a community support worker employed by Salisbury FAYS, confirmed that the accused attended that office at about 11.30 am on 24 September 1999. Ms Gower said that she spoke to the accused about assistance for food and baby needs and then paid her $100. She thought the transaction took between 15 and 20 minutes. The accused had a pusher with her but Ms Gower said she did not see the baby, nor hear any noise or crying.
Cheryl Smith
Cheryl Smith confirmed that she received a phone call from the accused on 24 September 1999. Although the accused told the police in the recorded interview that she rang Mrs Smith at about 2.30 or a quarter to three, the Telstra records establish that the call was made at 1.19 pm. Mrs Smith agreed that sounded correct although she could not recall the actual time. This telephone call is of considerable significance to both the prosecution and defence. On the prosecution case, there was nothing unusual about this phone call. It was simply a fairly routine request from the accused to Mrs Smith for assistance with Crystal’s feeding problems as had occurred on a regular basis in the preceding weeks. This was therefore inconsistent with Crystal having suffered a severe injury at 8.30 that morning. On the defence case, however, the phone call demonstrates a concern by the accused that Hayes had “done something” to Crystal that morning which supports the defence case that there is a reasonable possibility that Hayes was responsible for Crystal’s injuries. It is therefore necessary to consider the terms of that conversation in some detail.
The accused’s phone call to Mrs Smith at 1.19 pm
Mrs Smith said that she had taken her own daughter to hospital on the preceding evening to have grommets put in her ears. She said that on Friday, the accused rang to ask after her daughter. Mrs Smith recounted the conversation as follows:
“Q.Can you recall what was said during that telephone call.
A.Rebecca rung up to ask me how Alisia went, we spoke about that. I think that was the phone call where she said that Travis had unsettled the baby.
Q.Can you remember anything else about that phone call.
A.That he twisted, I think, the baby’s leg.
Q.Anything else.
A.And she hadn’t fed since 2 o’clock that morning.
Q.What did you do after receiving that phone call.
A.I hung up and just did what I was doing round home, I think, yes.
Q.Was there any request from Ms Macaskill for you to come down.
A.Yes, there was. But I explained to her that I’d been in the hospital all that night with my daughter. I just wanted to stay home and have tea with my kids.
Q.Had you received phone calls from Ms Macaskill similar to ones that you received that day.
A.About going down to look after the baby?
Q.Yes.
A.Yes.
Q.Was there anything different about that phone call from other phone calls on that topic.
A.I don’t think so, no.”
In cross-examination, Mrs Smith described this conversation in the following way:
“Q.Going back to the conversation you recall having on the telephone, whenever it was and however long it was: an arrangement was made that you would go round to Rebecca’s place, wasn’t it.
A.That’s right, yes.
Q.You couldn’t go around straightaway, could you.
A.No.
Q.So you said you would be around later.
A.That’s right, yes.
Q.That was because Rebecca – the whole arrangement about you going round there was because she was asking you to go around, wasn’t it.
A.Yes.
Q.That was to do with Crystal, wasn’t it.
A.That’s right, yes.
Q.Ms Macaskill told you in that telephone call that Travis had done something to Crystal that morning, didn’t she.
A.That’s right.
Q.She told you that Travis had done something to Crystal that morning, didn’t she.
A.I think so, yes.
Q.In your diary, in terms of this phone call all you’ve noted is that she was upset with Travis, isn’t it.
A.Yes.
Q.But you can recall that a bit more was said than that obviously.
A.Yes.
Q.That included that Travis had done something to Crystal.
A.Yes.
Q.Do you have a recollection of whether anything was specified about what Travis had done to Crystal or not.
A.Rebecca had said that she had twisted Crystal’s leg.
Q.The leg twisting, is that just from your memory or from some other note somewhere or what.
A.No, that was from memory.
Q.Can you be confusing that with some other occasion when she complained of Travis twisting the leg.
A.I don’t think so.”
Subsequently, having refreshed her memory from the statement that she had earlier made to the police, Mrs Smith said that the twisting of the leg could have related to a conversation which took place in the previous week and that she had got confused. I am satisfied that Mrs Smith was in error when she said that the accused made a complaint about Hayes twisting Crystal’s leg in the course of this particular telephone conversation, but I am satisfied it was an honest mistake which does not affect my overall assessment of her as a reliable witness.
Mrs Smith said that she made an arrangement to see the accused after tea but was not quite sure when that was made. She said she arrived at the house between 7 and 7.30 pm and asked where Crystal was. She then went to see her and immediately noticed that there was something wrong with her. She described her as looking “like a little rag doll”.
Mrs Smith said that she asked someone to get a wet face washer as Crystal looked dehydrated and she told someone to go and get Jan who was a nurse who lived around the corner. Ms Hasler arrived a few minutes later. She started to work on Crystal and Mrs Smith then rang for an ambulance.
Janet Hasler
Janet Hasler said that Hayes arrived at her house at about 7.30 in the evening and asked for help as the baby was sick. She immediately went to their house to see Crystal. She described Crystal as being “totally limp, … very pale”. Her eyes were open but with no life in them. She was chain stroke breathing which Ms Hasler described as non-repetitious breathing. She endeavoured to help Crystal breathe and instructed Mrs Smith to call an ambulance.
Craig Winton and John Graham
Mr Winton and Mr Graham are ambulance officers with the South Australian Ambulance Service. They arrived at the accused’s house at about 7.45 pm. Mr Winton described Crystal as unresponsive, by which he meant unconscious. Mr Graham described her as a very sick baby, struggling for breath, colour not good, very pale, almost blue, almost cyanosed, and said the child was not responsive. Mr Winton completed what he called the Glasgow coma scale to assess Crystal’s level of consciousness and allocated the number three, which meant that she was unconscious with no response at all.
Mr Winton said that he attempted to obtain a history relating to Crystal while he was at the house and he said “basically I was told that the baby has been off his [her] food all day and unresponsive for most of the day as well … I got in my notes ‘at some stage baby has been non-responsive for most of the day’. My belief was that it may have been the grandmother that told me that he had been of[f] his [her] food as well”.
Mr Graham said “I am not sure whether it was the mother of the child or someone, had said the child had been quite flat all day, quite ill, for most of the day.”
Lyell McEwin Hospital
The ambulance officers took Crystal to the Lyell McEwin Hospital where she was admitted at about 8 pm. Dr Leigh, saw Crystal in the emergency room and administered intravenous access and took blood tests. She described Crystal on admission as pale and floppy, responding to deep pain only.
Margaret Blomeley was a nurse working in the emergency area of the Lyell McEwin Hospital when Crystal was admitted. She recognised her handwriting on a page of the hospital notes where the word “alert” had been written. She did not, however, have an independent memory of Crystal nor could she assist in providing information as to what symptoms might have caused her to write “alert”. She said that if this was the child that was eventually taken to the Children’s Hospital then it was possible that the note was inaccurate, particularly as it had clearly been written in a great hurry due to the emergency procedures in operation in the resuscitation room at that time.
The entry in these notes is surprising as Ms Blomeley did not present as the sort of person likely to make such an error, even in an emergency situation. The description of Crystal as “alert” is, however, so contrary to the observations of every other person who saw Crystal at this time that I completely disregard it.
Women and Children’s Hospital
At about 10.30 pm, Crystal was transferred to the Women and Children’s Hospital as she required intensive care management. She was subsequently seen there by Dr Keeley at about 10.45 pm.
Dr Keeley declared Crystal brain dead on 26 September 1999 although Crystal remained on life support until the afternoon of 27 September 1999 when life was declared extinct.
Hayes as an essential witness in the prosecution case
I am satisfied that the only two people who had access to Crystal on 24 September 1999 prior to her being discovered gravely ill by Mrs Smith are the accused and Hayes. Hayes denied that he shook Crystal or caused her any injury that day. If I am satisfied beyond reasonable doubt that Hayes has told the truth when he said that he did not injure Crystal that morning then it would follow as a matter of logic that any injury that I find has been deliberately inflicted upon Crystal must have been inflicted by the accused. Hayes is therefore an essential witness in the prosecution case. There are, however, a number of matters which make Hayes a potentially unreliable witness. It will therefore be necessary to scrutinize his evidence with particular care.
General Principles
The assessment of evidence of a potentially tainted witness has been discussed in the authorities in a number of contexts in which it has been thought necessary to give the jury a warning as to the dangers of acting upon such evidence in the absence of corroboration.
In Bromley v R (1989) 161 CLR 315, the High Court discussed the evidence of a witness who suffered from a mental disability. The High Court held (per Gibbs CJ, Mason,Wilson and Dawson JJ), that if in a criminal trial it appeared that a witness whose evidence was important had some mental disability which might effect his capacity to give reliable evidence, then the jury should be given a warning appropriate to the circumstances of the case of the possible danger of facing conviction on his testimony unless it was confirmed by other evidence.
In Longman v R (1989) 168 CLR 79, the High Court considered whether a warning was required in relation to the uncorroborated evidence of a victim of a sexual offence where the relevant legislation had dispensed with the requirement of a general warning. The court held by a majority that the dispensation with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class did not affect the requirement to give a warning whenever that was necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case.

Domican v The Queen (1992) 173 CLR 555, was concerned with the requirement to give a warning in a case which was dependent upon evidence of identification. The court held by a majority (per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (at 561-562) that:
“Where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. …[T]he jury must be instructed ‘as to the factors which may affect the consideration of the identification evidence in the circumstances of the particular case’ Smith v The Queen (1990) 64 ALJR 588 at 588. A warning in general terms is insufficient. The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’ Kelleher v The Queen (1974) 131 CLR at 551. Reference to counsel’s arguments is insufficient. … [T]he trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.”
In Pollitt v The Queen (1992) 174 CLR 558, the High Court discussed the obligation upon trial judges to warn juries about the evidence of prison informers. The court expressed the view that such evidence required a warning appropriate to the circumstances of the particular case to the effect that it was potentially unreliable, that it was dangerous to act on such evidence, that it should be scrutinised with great care and that there was a need to look for confirmatory material.
It is well established that an accomplice warning is required to be given to a jury in respect of the evidence of witnesses for the prosecution who are participes criminis in the crime charged, whether as principals or accessories before the fact, receivers of property alleged to have been stolen by the defendant and parties to any other crime where evidence of such crimes are admissible against the defendant: Davies v DPP (1954) 1 All ER 507.
In R v Macaskill (No2) (2001) 81 SASR 155, the appeal against the accused’s conviction at the earlier trial, defence counsel argued that Hayes should have been treated by the trial judge as an accomplice. The judge should therefore have given the jury the mandatory accomplice warning as to the dangers of acting upon his evidence. The Court of Criminal Appeal held, however, that Hayes could not properly be characterised as a participant in the crime as the case had been presented to the jury on the basis that it was either Hayes or the accused who had committed the crime. In the course of my reasons (with which Doyle CJ and Besanko J agreed) I referred the Victorian decision of DPP v Faure [1993] 2 VR 497 and said (at 159-160):
“Director of Public Prosecutions 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 The Queen (1989) 161 CLR 315, Longman v The Queen (1989) 168 CLR 79 and Domican v The Queen (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.’
…
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.”
I then went on to refer to a number of matters which had arisen in the course of that trial which made Hayes a potentially unreliable witness and which, in my opinion, had required the judge to give a warning to the jury, as to the dangers inherent in his evidence. I now propose to examine the matters which have arisen in this trial which may affect Hayes’ reliability as a witness, bearing in mind the necessary approach to such evidence as outlined in the authorities.
Matters affecting Hayes’ credibility as a witness
Motive to exculpate
The first matter which I bear in mind when assessing Hayes’ reliability as a witness is his obvious motive to exculpate himself as it is clearly established on the evidence, and I find that only he and/or the accused had access to Crystal at the relevant time.
Prior charges
Furthermore, I take into account the fact that Hayes had previously been charged with offences relating to Crystal’s injuries. Initially he was jointly charged with the accused of causing Crystal grievous bodily harm. Following Crystal’s death he, together with the accused was charged with Crystal’s murder. It is an agreed fact, however, that in November 2000 the murder charge against Hayes was dismissed in the Magistrates Court and that dismissal was not opposed by the Director of Public Prosecutions. The circumstances in which the charge was dismissed were not disclosed in evidence and it is inappropriate for me to speculate as to the reason why that occurred. The fact that Hayes had previously been charged with offences relating to Crystal’s injuries, however, highlights the need to take a very cautious approach to the consideration of his evidence. Hayes has a significant interest in the outcome of these proceedings and his evidence may therefore have been tailored to avoid being implicated in the events which led to Crystal’s death.
Hayes violent behaviour
In scrutinising Hayes’ evidence it is necessary to have close regard to the evidence which emerged with respect to past violent behaviour by him. Hayes and the accused had known each other from about 1997 and formed a relationship in about 1998. Crystal was born on 15 June 1999. I am satisfied that the relationship between the accused and Hayes was always volatile. Hayes in evidence admitted that on occasion he had been violent to the accused but denied that he had ever been violent to Crystal.
Hayes said that prior to Crystal’s birth he had arguments with the accused every couple of weeks which sometimes would be physical with a bit of “pushing and shoving with a few hits thrown in”. He said that the accused would throw some hits but he had thrown one punch. He said there were a couple of arguments after Crystal was born. He recalled one when Cheryl Smith was present in which he was trying to take Crystal away from the accused and the accused would not let him. He thought that on that occasion he grabbed the accused by the throat and threw her against the wall.
Hayes said that he had attended an anger management course as a result of a suggestion from Guy England. He thought he went on about three occasions, although it was suggested to him in cross-examination that it was more. He was adamant, however, that he would never take his anger out on Crystal.
In cross-examination he acknowledged that he would push the accused around. He admitted that he had slapped her once but said he had never left or caused any bruises. He agreed that there was an occasion when the police had been called when he and the accused had ended up on the street and he had grabbed the accused on the arm. He said, however, that the accused would attack him once a week, either “by verbal, push and shove or a few hits thrown” and he would then push her back and grab her by the throat.
Mrs Smith, however, observed Hayes being violent to the accused on more occasions than Hayes was prepared to admit. Mrs Smith also referred to other occasions on which the accused had made complaints about Hayes’ violence. During 1999, Mrs Smith kept a diary in which she wrote down every day occurrences when they were fresh in her memory. She referred to the diary in the course of giving her evidence, both as to the times she assisted the accused with feeding Crystal and also as to her observations of violence between the accused and Hayes.
Mrs Smith said that on 8 August 1999, she received a phone call from the accused in which she made a complaint about Hayes being violent towards her and when she saw the accused later that day she noticed bruising on her face.
On 10 August, she witnessed an argument between Hayes and the accused in the course of which Hayes grabbed the accused’s hair and was hitting her around the head.
On 22 August, Mrs Smith witnessed some arguing and violence although she could not remember the details.
Mrs Smith said she received a message on the phone from the accused on 1 September 1999 that she and Hayes were fighting again.
On 5 September 1999, Mrs Smith was present when there was some arguing.
On 11 September 1999, Mrs Smith recorded in her diary that they had been fighting, but then said she could not remember whether that was something she saw or something she had been told but thought it might have been the latter.
Mrs Smith said that on 16 September 1999, she called in to see the accused. Hayes had Crystal in his arms and he and the accused were pushing each other. Mrs Smith said she intervened and took Crystal away from both of them.
In cross-examination, Mrs Smith agreed that the note in her diary for 8 August 1999 described the accused as being “in a mess”. She said she could tell that by her voice. She said the accused was crying and complained that Hayes had belted her. Mrs Smith described bruising on her left forehead and around her throat. She said that she had seen bruising on the accused on her face and arms on occasions before Crystal was born. Subsequently, between about 8 August and 24 September, she had seen bruises on the accused maybe half a dozen times and had seen Hayes assault her at least five times. She said assaults consisting of pulling hair, grabbing the accused around the throat, hitting her, punching her and pushing.
Mrs Smith said on an occasion which was possibly about two or three weeks before Crystal died, she had seen Hayes push the dummy very roughly into Crystal’s mouth which made Crystal cry harder and she had had to pick Crystal up to soothe her. She said that she had seen Hayes feeding Crystal on two or three occasions and he was not very patient with her.
Mrs Smith recalled another occasion when Hayes and the accused were fighting out the front of the house. She said the accused was hanging on to the pusher and the pusher was about to tip so she took the baby away so Crystal would not get hurt. She then saw Hayes hit the accused and drag her down by the hair.
Mrs Smith said she had heard Hayes call Crystal “a little mole” and a “little slut” and say that he would have preferred a little boy than a little girl.
Mrs Smith agreed that in the phone call on 24 September 1999, the accused said that Travis had done something to Crystal.
Mrs Smith was present the next day when there was a conversation between the accused and Hayes about Crystal in the course of which she remembered:
“… Travis saying something about he had hit the baby’s head on the back of the pusher and he’d done it and was sorry and he thanked me for helping Crystal.”
Mrs Smith said that she had been a victim of domestic violence by her partner, Guy England, who became involved with the men’s counselling group which Hayes later attended.
Mrs Hasler lived near the accused and Hayes in 1999. She said that during the accused’s pregnancy she heard quite a bit of arguing “probably once a fortnight”. On one occasion she had called the police as a result of screaming and banging from the house and the accused was then observed sitting in the gutter crying and yelling that her arm was broken. Mrs Hasler said, however, that she had not heard arguing after Crystal was born.
Anger Management Questionnaire
An anger management questionnaire completed by Hayes (D8) gives some insight into the extent of Hayes’ problems with anger. Hayes says he has “a very big problem with [my] anger” and that he would get angry about three times each day. He said:
“The last time I got angry what happened was I had woke up for work and the alarm clock woke up Crystal so I got up tried to give her the dummy she didn’t want that so I picked her up and she started crying louder than before and Rebecca woke up thinking that I had bashed her so Bec got up and grabbed me around the neck so I smashed her face into the floor and she told me to get out. The problem was resolved by me going away for a few days and cool down.”
He went on to say “Yes, I do wake up feeling angry and it happens pretty often”. In answer to the question “When you do wake up feeling angry, do other people easily get you going?”, Hayes said:
“When I wake up angry other people can easily get me going like after the first few days that Crystal was home I would wake up to her crying so I get up to change her and feed her - there’s mornings when she just won’t stop crying”.
In response to a question as to how he deals with his anger, Hayes said:
“The way I feel about my anger is that 90% of the time my anger gets out of control and the rest of the time I sometimes have a right to be angry but my right reasons could be different at times. …I feel that my anger controls a good 60% of my life.”
He was asked “Do you ever feel crazy when you were angry?” and Hayes said:
“I have felt crazy when I’ve been angry, I wouldn’t give a stuff about getting locked up want to kill anyone that walked past the wrong way. I would even say that I would go and commit suicide.”
Although Hayes denied ever being rough with Crystal, he agreed in evidence that on occasions when he lost his temper, sometimes the details of what happened became a bit blurred in his memory. He was asked:
“Q.There would be times when Crystal’s behaviour would cause you to lose your temper.
A.Not to lose it, but yes, not happy getting frustrated.
Q.Some of those times were when you were handling Crystal and trying to feed her weren’t they.
A.Yes.”
Hayes denied, however, that he would shove the bottle in Crystal’s mouth a bit further or yell at her when he got frustrated. He agreed that the accused relied on Cheryl Smith quite a bit in caring for Crystal and that the accused confided in Mrs Smith about matters and would ring her when they were having an argument and that was how he had become involved in the anger management course. He denied, however, that there was an occasion when Guy England came into the room when he was squeezing Crystal’s leg between the knee and ankle or that he had done anything like that on any occasion.
Guy England
Guy England confirmed in evidence that he had taken Hayes to the men’s counselling group with him on about three or four occasions as well as another group conducted by a man called Mark Hill, the latter group being the one concerned with anger management. Mr England thought he remembered seeing bruises on the accused once or twice and said Hayes had admitted to him that he had hit the accused. He said Hayes told him he would get upset with Crystal when she would not feed properly. He recalled an occasion at their home when Hayes went into Crystal’s room to calm her down. He said he heard Crystal’s cry turn into a “hurtful cry” and he saw Hayes with his hand on Crystal’s leg. He was not prepared to say, however, that Hayes was squeezing her leg but simply that Hayes was “rubbing” it. Despite being pressed about this incident Mr England was obviously reluctant to describe anything more sinister than a rubbing action. This would appear to be the incident which at some stage was the subject of complaint in a phone call to Mrs Smith by the accused. I do not, however, give any weight to what was said in that phone call nor find that anything more happened on this occasion other than as described by Mr England.
Admission of fault
The defence maintained that considerable weight should be given to what appeared to be an admission of fault by Hayes on the day following Crystal’s admission to hospital.
After Crystal was taken to the hospital, Hayes went home with Mr England and the children. The following day, he had a conversation with the accused at Mrs Smith’s house. Hayes agreed that in that conversation he said that Crystal’s injuries might have been his fault. Hayes’ evidence as to this particular conversation is as follows:
“Q.     What did you say to Rebecca.
A.     ‘It might have been my fault’.
Q.    What did she say.
A.     She just started crying.
Q.    Why did you say it might have been your fault.
A.As far as I knew I was the last one to really hold her, apart from Rebecca, before I left. I don’t know.
Q.    Did you say anything else about why you thought it was your fault.
A.     No, I didn’t.
Q.    What were you thinking at that time that you might have done.
A.     I might have hit her head on the pram without even realising.
Q.    When did you think that you might have done that.
A.     There were buckles we had tucked up underneath the cushion.
Q.    When do you think that you might have done that.
A.     The Friday morning.
Q.    Did you hit her head on the buckle.
A.     I don’t know, because the buckles were underneath.
Q.    Did you shake Crystal that morning.
A.     No, I didn’t.
Q.    Did you shake Crystal at any time.
A. No.
Q.    Were you ever violent towards Crystal.
A.     No.
Q.When you put her back in the pram at 8.30 that morning, were you being rough or gentle or what.
A.     Yes, gentle.”

Hayes admitted that about a month earlier, Crystal had ended up with a lump on her forehead and a little bruise on the side of her head as a result of hitting her head when he was putting her into her pram. Hayes said he did not realise how close he was to the pram and Crystal just hit her head on the white plastic part on the front of the pram.
Hayes agreed that he had been told about Crystal having some fractures to parts of her legs and ribs but denied causing any of them. He also said he had not ever seen the accused violent towards Crystal. In cross-examination, however, he was asked about some of the statements he had made to the police and his evidence at the earlier trial. Hayes agreed that when asked by the police whether he had ever seen the accused act in a violent manner to Crystal, he had said:
“I did one morning, but I don’t know whether I was, cause I’d only just woken up to see Rebecca throw Crystal into the pram, so I didn’t get up and say nothing cause I don’t know whether I was seeing things, seeing things or what”.
In the present trial, Hayes said that he did not know whether he had woken one morning to see the accused throw Crystal into the pram. What he had previously said to the police might therefore not be true. Hayes agreed that at the earlier trial he had said he was sure that he had never seen Crystal thrown into the pram by the accused. He now said he was unsure. Hayes agreed that he was asked at the first trial “Did the image of Crystal going forcefully into the pram pop up in your mind?” and he had said “Yes” and that was an image he had in mind when he spoke to the police in March 2000.
In cross-examination Hayes was asked about the conversation at Mrs Smith’s house on the Saturday and the evidence was:
“Q.By the time you were talking to Rebecca and Cheryl you knew that it was a head injury that was being investigated.
A.Yes.
Q.You then turned your mind to what might have led to a head injury to Crystal, didn’t you.
A.Yes.
Q.That caused you to focus on when you had handled Crystal at the pram on the Friday morning.
A.Yes.
Q.In other words, the previous day.
A.Yes.
Q.At that time you concluded that it must have been you that had somehow harmed Crystal, didn’t you.
A.Yes.
Q.You told Rebecca and Cheryl Smith that it must have been you that hurt Crystal.
A.I said it could have been my fault.
Q.You are not suggesting you recollect now the precise words you used, are you.
A.No, I’m not using the precise words that I used then.
Q.You said something along the lines that it could have been your fault. Is that what you are telling her Honour.
A.Yes.
Q.One of them asked for details or what you meant or whatever, didn’t they.
A.Yes.
Q.You said that you put her in the pusher and she hit her head, didn’t you.
A.I said ‘she might have hit her head’.”
Although Hayes continually maintained that he had never been rough with Crystal, he agreed that there were times when Crystal’s behaviour caused him to get frustrated. That happened at times when he was handling Crystal or trying to feed her. He denied, however, that he had ever been rough with her or shoved the bottle in her mouth a bit further, or had called her names. He said he was unaware of any earlier head injury or trauma. He had never seen anything that could have caused some sort of bleeding inside Crystal’s spine in the middle of her back. Defence counsel cross-examined Mr Hayes closely about his evidence about the possibility of the buckles having hurt Crystal and the evidence was:
“Q.We will take it one stage at a time. When were you of the opinion that the buckles might have hurt Crystal.
A.On that Saturday morning.
Q.But not any more; is that what you say.
A.Yes.
Q.What has caused you to change your opinion on that topic between Saturday, 25 September 1999 and now.
A.The fact that I’ve been in court and heard what actually happened.
Q.On that, what you mean by that isn’t it; that you’ve heard that this wasn’t an impact injury but it was a shaking injury.
A.Yes.
Q.That’s what you mean, don’t you.
A.Yes.
Q.So, therefore, you are of the belief that it couldn’t have been you because, whatever you did, you certainly didn’t shake her; is that right.
A.Yes.
Q. If you did anything it was only impact or bumping the pram, correct.
A. Yes.”
It will be necessary to discuss the medical evidence in detail later in these reasons but I indicate at this stage that I am satisfied that Crystal’s fatal injuries were not the result of her hitting her head on the buckles, or for that matter any part of the pram, in the way Hayes described. Dr Hilton was the only medical witness to favour impact over shaking, but even he made it clear that placing the child in the pram and bumping her head would be insufficient to result in the injury which led to Crystal’s death. Dr Hilton said by “impact” he meant throwing or propelling Crystal in an obviously forceful manner.
In view of Hayes’ denial of any such forceful behaviour, on the prosecution case, the suggested admission of fault on the Saturday is irrelevant. The prosecution suggested that, due to her multiple fractures, Crystal probably screamed when Hayes went to pick her up. When Hayes later reflected on what might have caused an injury to Crystal’s head he had remembered the scream and thought that she had possibly bumped her head when he placed her in the pram. As that was excluded by the medical evidence, Hayes’ admission of fault carried no weight.
The defence, however, suggested that Hayes had not told the truth about his actions on the morning in question. On the day immediately following Crystal’s admission to hospital Hayes clearly believed he was responsible for the injury to Crystal. That statement of belief was inconsistent with the version of events which he later gave to the police, and in court, to the effect that he had done nothing at all to Crystal that morning which had caused her any injury.
Defence counsel also referred to inconsistencies arising out of Hayes’ evidence as opposed to what he had said to the police, and at the earlier trial, as to such matters as the distance he had lifted Crystal from the pram. Hayes, at this trial, said he had lifted Crystal 10 to 15 cms out of her pram, but later said he had told the police 5 cms. In the earlier trial, however, he had maintained that he had not given any estimate at all to the police. Hayes was then shown the statement he made to police on 17 March 2000 which mentioned “about 10 cms, 15 cms”. He then said he could not remember. He said “I am just saying I don’t know”.
The defence did not suggest that the mathematical discrepancies of themselves were significant but argued that the confusion demonstrated by this conflicting evidence was indicative of the difficulty in relying on anything Hayes had to say about what happened that morning. In addition, although Hayes earlier said that he had never seen the accused violent to Crystal there was his curious evidence about the possible image of the accused throwing Crystal into the pram. On the defence case, this evidence was untruthful and was designed to divert the responsibility for the crime to the accused. Defence counsel also referred to some other relatively minor inconsistencies in Hayes’ evidence but which taken together added to the difficulty in accepting him as a reliable witness.
Hayes use of cannabis
Furthermore, Hayes admitted he was a regular user of cannabis. He said he smoked it every day. He said he used a $25 bag which was “3 gms, 4 gms”. He then said “100 cones a day, through the whole day from morning until I go to sleep”. Although Hayes said that he did not have any cannabis on 24 September 1999, the defence submitted that his history of cannabis consumption meant that he would have very little idea of what occurred at any time.
Credibility and Reliability of Hayes
Hayes presented as a reluctant witness, but I thought that was understandable, given the suggestion that he was the person responsible for Crystal’s death. He clearly has an aggressive personality and I am satisfied that he was physically violent to the accused on many more occasions than he was prepared to admit. The prosecution conceded that Hayes was a violent man but argued that all of that violence had been directed to the accused. As reprehensible as that was, in the context of this case, the significant matter was that none of that violence had been directed at Crystal, notwithstanding Hayes’ concessions of frustration from time to time on account of Crystal’s feeding difficulties.
Hayes, however, presented as a very immature young man. In fact, he was only aged 18 at the time of Crystal’s death. The care of Crystal must have been very difficult in the light of her ongoing feeding problems and the fact that she must have been in considerable pain as a result of her multiple fractures. As Hayes said in his anger management form “there’s mornings when she just won’t stop crying”.
Although Hayes may not have consciously directed violence at Crystal, his frustration with her must at times have been extreme. I am satisfied that Crystal was involved in episodes of violence which took place between Hayes and the accused such as the episode in which Mrs Smith intervened to remove Crystal so she would not get hurt. Hayes’ description in the anger management form of smashing the accused’s face in the floor and having to go away for a few days to cool down after a crying episode by Crystal is not consistent with the moderate behaviour he described on the morning of 24 September 1999.
Mrs Smith described Hayes being impatient with Crystal. She described an occasion when she had observed him shoving the dummy roughly into Crystal’s mouth, similar to what the accused told the police had occurred on the day in question. There is also the evidence as to Crystal’s previous injuries. The evidence does not establish who was responsible for those injuries but it had to be either Hayes or the accused and Hayes says the accused was not violent to Crystal. Hayes admitted that he had bumped Crystal’s head on the pram on an earlier occasion which left her with a lump and a bruise. This, at the very least, demonstrates a lack of care in the handling of such a young baby. Furthermore, the fact that Hayes consumes cannabis on such a constant basis and to such a substantial degree, must inevitably affect his perception of events and his ability accurately to recall them. In any event, Hayes admitted that when he lost his temper details would become a bit blurred.
As I said earlier in these reasons, Hayes is an essential prosecution witness and I have therefore scrutinised his evidence with particular care, bearing in mind the warnings adverted to in the authorities and the matters which have arisen in the course of this trial which potentially make him an unreliable witness. Having carefully examined the evidence I am not able to be satisfied as to the truth of what Hayes says happened on the morning of 24 September 1999. Even if he has not deliberately lied about those matters, in my opinion, he is an unreliable witness and it would therefore be dangerous to act upon anything he has had to say in the absence of any confirmatory material.
In those circumstances, the proof or guilt of the accused will be dependent upon the medical evidence.
Medical evidence
Shaken baby syndrome
The medical evidence as to the nature and extent of Crystal’s injuries was extensive. Dr Keeley, Professor Byard, Professor Blumberg and Dr Hilton all gave expert evidence on this topic and I accept each of them as a highly qualified expert in his field. I was also provided with a book of medical articles by the defence (D15) upon which the witnesses were examined and/or cross-examined, as well as a selection of articles produced by Dr Keeley in the course of his evidence (P16). These articles extensively canvass the topic of what I shall call “shaken baby syndrome”. I think it is fair to say by way of general comment that those articles disclose that there is a range of opinion, and considerable ongoing debate as to whether shaking alone is sufficient to cause injury to a baby or whether it is shaking combined with some form of impact.
Dr Keeley used the term “shaking impact syndrome” (sometimes referred to in evidence as “shaken impact syndrome”). He considered that was the cause of Crystal’s death. He said that when a child suffers such an injury there is a severe rise in inter-cranial pressure which leads to ischaemia. He said:
“A.   … the children that go on to die from shaking impact syndrome, we see that the dominant problem is profuse brain swelling due to a loss of auto-regulation which is an excessive amount of blood volume contained within the cranial vault. That, as the pressure builds up, in the end the pressure contained within the skull is greater than the heart’s ability to pump it so you get cessation of blood flow, consequent brain ischaemia and in the end brain death. There are phenomenon which are invariably present in these children. They have small amounts of subarachnoid bleeding. That is not sufficient in and of itself to exstrain any of the symptoms the child exhibits. They often have small what are called puntate areas of bleeding visible on scanning scattered through the brain, but again they are only small amounts not and of themselves sufficient to cause the raised intra-cranial pressure.
Q.    So with the shaking impact syndrome, what actually causes a swelling of the brain is the blood in the brain
A.    Yes. It’s loss of auto-regulation and a rapid increase in blood volume to the brain. …”
Professor Byard expressed the opinion that Crystal’s death was due to hypoxic brain damage secondary to shaking. He agreed that there was some controversy with shaking as opposed to shaking/impact syndrome. In this case, he favoured shaking over impact as he could not see any external bruising to Crystal’s head nor any fracture of the skull to indicate an impact point.
Professor Blumberg did not wish to enter the debate as to whether shaking alone could cause the injury. He said that he preferred to refer to non-accidental head injury or inflicted head injury. He was, however, satisfied that Crystal’s injury was the result of non-accidental trauma.
Dr Hilton, however, favoured impact, not excluding shaking, but more impact than shaking as the cause of Crystal’s injury. He acknowledged that this was a shift in opinion from his evidence at the first trial but said he had previously overlooked the fact that there were no fingertip bruises on Crystal’s body which would be expected if the child had been grasped sufficiently firmly to cause the child to develop a problem. He also said that there had been a development of knowledge since he last gave evidence and that it was now widely believed or accepted that in shaking the spinal cord became damaged in the neck. He agreed, however, that the injury to Crystal was plainly, on the material, non-accidental.
In this case, it is unnecessary for me to determine whether the injury to Crystal was the result of shaking alone or shaking combined with impact or for that matter impact with a shaking component. There is a consensus of opinion, and I am satisfied, that Crystal’s death was the result of an hypoxic ischaemic injury to the brain and that the injury was inflicted. The critical issue left for determination on the medical evidence is the timeframe in which that injury could have been inflicted. I am satisfied that only Hayes or the accused had access to Crystal at the relevant time for the infliction of this injury. If it is established that it could not have been inflicted before Hayes left the house at 8.30 am then it must have been inflicted by the accused.
The time frame for the infliction of the injury
Dr Keeley
The high point of the prosecution case is the evidence of Dr Keeley. Dr Keeley was strongly of the opinion that the injury had been inflicted not long before Crystal’s admission to hospital. The prosecution submitted that if I accepted the evidence of Dr Keeley as to the early onset of symptoms, then the description given by the accused in her interview as to what happened with Crystal in the course of the day, was inconsistent with an injury having occurred at about 8.30 in the morning. On that basis, Hayes would be excluded as the offender and I could be satisfied beyond reasonable doubt that the accused was the person responsible for the injury to Crystal.
The prosecution submitted that preference should be given to the opinion of Dr Keeley wherever it might diverge from that of any other expert witness as to the timeframe for the infliction of this injury. Dr Keeley had extensive experience as a specialist in paediatric intensive care and was therefore able to consider Crystal’s situation by comparison with other children that he had assessed and treated over a long period of time. In addition to being the clinician in charge of Crystal’s case, when considering symptoms, as a clinician he was in a superior position to the other witnesses who were all pathologists. The prosecution submitted that in any event the evidence of Professor Byard supported the evidence of Dr Keeley. Professor Byard, although a highly qualified pathologist, had acknowledged the limitations of pathology and said in evidence that he would defer to Dr Keeley as to this issue of time.
The thrust of Dr Keeley’s evidence was that a rise in inter-cranial pressure after trauma was something which occurred rapidly. He said:
“Where you have a diffuse brain injury that leads to death so rapidly, I would not conceive of the child having anything other than immediately unconsciousness.”
He said, by “immediately unconsciousness” he meant that a layperson would see “the child would [be] … flaccid, no movement, perhaps in response to a stimulus, like a shaking … you might get a whimper from the child, but clearly no eye opening, no fixation, no normal responses to handling of that sort”.
Dr Keeley described changes in behaviour, irritability and lethargy as the sort of things that could be early indicators of this syndrome.
It was put to Dr Keeley by the prosecutor that the history of the 24 September 1999 was that the child was difficult, had problems feeding, went into town and was put down for a nap at 2 pm. The prosecutor then asked if that history was inconsistent with the injury occurring at 8.30 am in the morning. Dr Keeley said he would query what was meant by feeding poorly. If that expression meant that the child would not wake, and therefore it could not be fed, then maybe in that situation the story was consistent. He said however, that the child could not be exhibiting the usual typical signs of feeding difficulties she had always had over the three months of her life.
Dr Keeley also referred the history he had obtained from the accused. He said the accused told him that Crystal had been difficult that day and had fed poorly earlier. The accused later told him about two attempts to feed the child. Dr Keeley said:
“… So I presume the child was exhibiting hungry signs, awake, crying, moving about, looking as if it was hungry. I presume it had its nappy changed during the course of the morning, though I did not specifically ask those things. In the end I was left with a child that was fussy and difficult, and left with the impression, and certainly up to at least 11.30, that last attempt to feed was to most intents, or my understanding, irritable but otherwise a normal baby. …”
Until he was cross-examined at trial, Dr Keeley had been unaware of the phone call made by the accused to Mrs Smith at 1.19 pm. He said however that if the trauma had occurred at 8.30 in the morning, by 1.19 pm he would have expected the child to have been in the same condition as she was when presented to him. He said:
“If the injury had occurred at 8.30 usually by four or five hours later, you are going to see a kid in deep trouble.”
He said:
“A deeply unconscious child would not survive more than a few hours.”

He also said:
“The intracranial pressure was of a severity likely to result in death. If that had occurred slowly, then I would have expected the child to … have been brought in 12 hours prior. It would already have begun to show indications that a slow process that’s leading to raised intracranial pressure was beginning. If this had been a slow process, it clearly would have showed signs of abnormality. The fact that the story was that it had no signs until a certain point in the day; again reaffirms my belief it’s a rapid thing.”
Dr Keeley disagreed with Professor Blumberg’s opinion that if it was the sort of trauma that had a delayed or decompensated phase before it got too serious that you would have to be a trained medical observer to recognise the symptoms. Dr Keeley considered that if the process was slow, in most cases the child would have shown symptoms which would tell the mother or care giver that something was “not right”. He did, however, agree that as a general statement it could be said that it was impossible to put a dogmatic time frame on the occurrence of the original trauma in shaken impact syndrome. Although Dr Keeley later acknowledged that he could not rule out the possibility that Crystal suffered injury in the morning and was bleeding until midday when she became unconscious, hypoxic etc, he said that he thought it was implausible.
Defence counsel closely cross-examined Dr Keeley about the history he had obtained from the accused, with particular reference to the 1.19 pm phone call which on the defence case was a call for help as a result of Hayes having done something to the child that morning. It was suggested that if that was so then that would no longer make the day’s events inconsistent with a trauma earlier in the day. Dr Keeley said:
“[M]y belief is that … children [who] suffer these injuries are unconscious from the moment it happens, that therefore there are detectable abnormalities in the child from the moment it happens and makes it more likely to be around that time than later in the day, … because you have got somebody noticing something abnormal about the child.”
Dr Keeley agreed, however, that if there was something noticeably different about the child at 1 pm, that was something you would expect to find in the unfolding cascade of shaking impact syndrome.
Professor Byard
Professor Byard also thought that Crystal would have been unconscious within several hours of the trauma. He said:
“ … a child who has its brain torn or damaged so badly that it’s going to die, is not going to appear normal. The child very often would be unconscious straight way. By ‘unconscious’ I mean stuporous, eyes closed not making eye contact, not focusing, not playing, just lying there floppy, lifeless, blue, pale … It may be that the child doesn’t get to that stage initially, but they will be not normal.”
And:
“It may be that the child might not get to that stage initially, but they would not be normal. … They may be grizzling. They may not be feeding. Then there’s a steady progression.”
Professor Byard discussed a lucid interval, but said that in this type of injury there was no evidence of there being one. He thought Crystal would have been unwell straight away, maybe unconscious. He said:
“I think … in terms of shaking injuries where children die, the evidence is that it (unconsciousness) is reasonably rapid not gradual. … not over hours, not over days, but the child gets into trouble quite quickly (with this type of injury).”
He disagreed that there was a plateau of unwellness as suggested by Dr Hilton. He said:
“… in general terms I can say, as I said yesterday, that these children go downhill very quickly and within either immediately or within several hours will be unconscious if they go on to die.”
Professor Byard said, however, at the earlier trial:
“Q.Unconsciousness may not be the only sign. You said that the baby would not have looked normal from about the time of the injury.
A.That’s correct.
Q.What would be likely to have been the externally visible times of abnormality from the time of the injury on.
A.May have been something as simple as just being listless, not wanting to feed, not being herself. She might have had vomiting, she might have been grizzling or whining, crying with a strange voice. She may have appeared to have been slumbering, she may have actually had fits.” (emphasis added)
Professor Byard also said at the earlier trial:
“A.Again, I don’t think you can put an outer limit on the infliction of the injury, because we don’t know how long these children can survive, but I think that with the degree of injury that was described, and the illness, by the doctors, by the ambulance people, that I would think that she would have been unconscious within several hours, and unconscious, I think, within four hours of when she was seen, but in terms of actually when the injury was inflicted before that, I think it’s very difficult to say. I would say that twelve hours is possible, seven days is not possible, but again we really don’t know how long these children can survive in a moribund state.”
And further:
“Q.… In terms of survival time, you certainly don’t rule out that, in this particular case, whatever injury specifically occurred, if it occurred around about 8.30, you don’t see anything that rules out survival and I mean, unmedically assisted survival, through to 7.35 ish.
A. No, I don’t.”
Professor Blumberg
Professor Blumberg examined Crystal’s brain and spinal cord at the request of Professor Byard. Professor Blumberg gave evidence at the earlier trial and the transcript of that evidence was admitted in evidence at this trial (D14) Professor Blumberg confirmed he still held the same opinion. Professor Blumberg was asked about the observable effect upon the child after sustaining such an injury whatever that might have been, that gave rise to the brain injury. He said:
“If the swelling was very acute, very rapid then the child may lapse into unconsciousness or coma very quickly. If the swelling is more delayed and less rapid, the child may be just drowsy, irritable, failing to feed, just be not its normal self and then as the swelling continues finally a phase is reached where there is a decompensation, and the child would then lapse into a comatose state.”
He said that in this case the brain showed evidence of severe swelling but could not say whether it happened immediately “or delayed then a decompensated phase”.
Dr Hilton
Dr Hilton said, however, that based purely on the medical and pathological data “it is entirely possible that she was injured several hours before she actually presented in the moribund state”. He said the injury could have occurred just before the ambulance got there, or it could have happened in the morning but it was unlikely to have occurred the day before.
Dr Hilton thought the deterioration in Crystal’s condition was “not necessarily rapid or uniform in progression”. He said “There could be a decrease in wellness, there could be a partial recovery, there could be a further decrease going beyond the first decrease” and “there may be temporary improvements or part temporary improvements”. Dr Hilton agreed that irritability, drowsiness, refusal of feeds can be symptoms of “cerebral irritation”.
Having been referred to the history contained in the accused’s record of interview, Dr Hilton said:
“There is nothing in that statement which would exclude something happening at about 8.30 which set in motion the chain of events of the child death. There is nothing to confirm it either. There is at least an incident at 8.30am which might indicate that there was an acute episode in the child’s life.”
He said that some of the symptoms which can indicate this type of injury were seen in the record of interview. He also referred to the history given to the ambulance officers that the child had been “quite flat, quite ill for most of the day and been off her food all day and had been unresponsive for most of the day”. He said it fitted relatively well with the trauma having occurred 8.30 - “Here the trauma has been described for the whole of the day. I think the most telling phrase is ‘unresponsive’.”
In cross-examination, Dr Hilton was asked what the observable symptoms would have been if the injury occurred at 8.30 am and he replied:
“There is a spectrum. There could be … instant loss of consciousness, never any recovery , there could be loss of consciousness, complete recovery, or partly complete recovery or anything in between. There might not necessarily even be a loss of consciousness at that time.”
By “unconscious” he meant floppy and unresponsive.
Dr Hilton was reluctant to say how long a lucid interval could last, ie whether it would last all day or would be relatively short. He said he would need more information on what was meant by feeding difficulties before he could exclude the possibility that the child experiencing feeding difficulties would be inconsistent with the injury having occurred at 8.30 am.
The Prosecution case
The prosecutor, in the course of her address, was quite critical of Dr Hilton. She suggested that some of his responses to questions were quite unhelpful as opposed to the considered opinions expressed by Dr Keeley and Professor Byard.
The prosecutor also suggested that if there was room for debate as to the time of onset of observable symptoms, the phone call made by the accused to Mrs Smith at 1.19 pm was of considerable significance.
Dr Keeley and Professor Byard both considered that Crystal would have been unconscious straight away or within four hours of the infliction of the injury in which case Crystal would have been unconscious and in “deep trouble” at the time of the phone call to Mrs Smith.
On the prosecution case, however, there was no sense of urgency expressed by the accused when talking to Mrs Smith and the discussion by the accused about Smith’s daughter and the arrangement made for Mrs Smith to visit in the evening were inconsistent with there being anything wrong with Crystal at that time, apart from her usual feeding difficulties.
The medical evidence of Dr Keeley and Professor Byard therefore made the accused’s account of what happened in the course of the day implausible if the injury had in fact been inflicted by Hayes at about 8.30 that morning. Hayes, in addition, had denied on oath that he had committed the offence. The evidence therefore established that the injury had been inflicted later in the day and on that basis the only person who could have inflicted that injury was the accused.
The prosecution submitted that the medical evidence established that the crime of manslaughter had been proved and the only issue for determination was the identity of the perpetrator. As Hayes could be excluded as the person who committed this crime, the accused’s guilt of the offence was established beyond reasonable doubt.
Defence case
On the defence case, however, for reasons I have already discussed, Hayes must be rejected as a witness of truth or, at the very least, as an unreliable witness, in which case the determination of the guilt of the accused rests upon the medical evidence.
The defence did not accept that Dr Keeley, as a clinician, was in a better position than the other medical witnesses to reach a conclusion as to the issue of time as Crystal was effectively moribund at the time she was admitted to hospital. On that basis Dr Keeley had not been able to observe any symptoms which might have placed him in a better position than the pathologists to express an opinion.
In any event, and most significantly, the defence suggested that Dr Keeley’s opinion that the injury had not happened earlier in the day was based on a flawed understanding of Crystal’s history for that day. Dr Keeley’s opinion was based on the premise that Crystal was normal throughout the day. On the defence case, Crystal was far from normal when the accused phoned Mrs Smith at 1.19 pm. The accused had contacted Mrs Smith for help as a result of Hayes having done something to Crystal that morning. The evidence of other medical witnesses left open the possibility of Crystal having been injured in the morning. There was therefore a reasonable possibility that Hayes was the person responsible for the injury to Crystal. On that basis the prosecution had failed to discharge its onus and the accused should be acquitted.
Conclusion
Dr Keeley was an impressive witness and I accept his evidence as to the rapid onset of symptoms after infliction of injury. His opinion that Crystal suffered the injury in the afternoon was, however, based upon his understanding that Crystal had not exhibited any unusual signs in the course of the morning, apart from the typical feeding difficulties she had displayed since birth. From his discussion with the accused, Dr Keeley understood that Crystal was exhibiting “hungry signs, awake, crying, moving about, looking as if it was hungry” when the accused attempted to feed her on two occasions prior to at least 11.30 am. As he said, he was left with the impression that she was “… irritable but otherwise a normal baby …”. I accept Dr Keeley’s opinion that those matters would be inconsistent with an injury inflicted in the morning. There is, however, other evidence which suggests that Crystal was not behaving normally, apart from her usual feeding problems, in the course of the day.
The police asked the accused about Crystal’s demeanour when she tried to feed her and the accused said “… she’s always alert but this no she wasn’t no she wasn’t herself”. She described her as “limp and unresponsive”. Crystal was with the accused at the FAYS office at about 11.30 am. If Crystal had been exhibiting hungry signs and crying and irritable that morning as Dr Keeley understood to be the case, it is surprising that Ms Gower did not hear Crystal making any noise at the office. More significantly, Mr Graham and Mr Winton, the two ambulance officers, recorded in the history they obtained at the house before Crystal was taken to hospital, that Crystal had been “non responsive for most of the day” and that she had been “quite flat all day, quite ill, for most of the day”.
Although Mrs Smith did not describe anything out of the ordinary in her telephone conversation with the accused, she recalled that the accused was upset with Hayes and that she had referred to him having done something to Crystal that morning. Nevertheless if Crystal was exhibiting symptoms of being “in deep trouble” as Dr Keeley suggested would have been the case if the injury had been inflicted in the morning, it does seem surprising, as the prosecution suggest, that the accused did not express a greater degree of urgency in the conversation with Mrs Smith or do anything about getting help from someone else. This must, however, be looked at against the background of Crystal’s feeding difficulties, the accused’s obvious limitations as a caregiver, and some of the medical evidence which suggests a difficulty for non‑medical people in immediately recognising symptoms associated with this sort of trauma.
The accused told the police after the phone call to Mrs Smith she went to sleep for the afternoon. This was supported by the evidence of Mrs Smith who said the accused was wearing a nightgown when Mrs Smith arrived at the house. Ms Blomeley at the Lyell McEwin Hospital also said that she remembered the accused wearing her nightgown and slippers because it struck her as unusual that she would be dressed that way at that time of the day. There is, therefore, no evidence at all as to Crystal’s condition from about the time of the phone call until she was found by Mrs Smith that evening. If Crystal was “flat” and “non‑responsive” at the time of the phone call to Mrs Smith that would be consistent with symptoms described by medical witnesses, such as, not feeding, listless, lethargic or as Dr Byard said “not being herself”. The accused may well have mistaken those symptoms for the typical feeding problems previously shown by Crystal. Furthermore, I am satisfied that the accused had a problem dealing with people in authority having had two children previously taken away from her as a result of problems with their care. Mrs Smith seems to have been the only person upon whom the accused was able to rely for assistance and direction with respect of care of Crystal. Those matters provide a possible explanation as to why the accused did not take steps to get advice or help from anyone else that day.
Although Dr Keeley remained firm in his opinion that the injury had been inflicted in the afternoon he conceded that his opinion that the prime event which set in motion the chain of events leading to Crystal being admitted to hospital had not happened earlier in the day was based on his assumption that everything relating to the child was in effect “too normal” that day. When it was suggested to Dr Keeley that the 1.19 phone call to Mrs Smith was a summons for help because Hayes had done something to the baby and that therefore no longer made the day’s events inconsistent with earlier trauma, the evidence was:
“A.It would give me a – assuming that we can take the history as fact, gives me a better idea as to the time of onset. Why? Because, as I said to you, the - my belief is that children who suffer these injuries are unconscious from the moment it happens, that therefore there are detectable abnormalities in the child from the moment it happens and makes it more likely to be around that time than later in the day, for instance, because you have got somebody noticing something abnormal about the child.
Q.Because earlier with your assumptions about feeding, or attempts to feed and therefore, assuming that the child was, in effect, inviting a feed.
A.Yes.
Q.And assuming that during the course of the day there must have been an attempt to feed and assuming, if you are ‘going out to town’, that suggests a pretty ordinary sort of a day, if you assume what we have just read out about the phone call, that that does put a different blush on the apparent history that day, doesn’t it.
A.Like the earlier history, it tells me that maybe at 1 o’clock, or whatever time the phone call was, that something is definitely noticeably different about the child. Whether it was noticeably different at 11.30, or 10, I don’t know.
Q.No, of course not, but what it does tell you is that by 1.19, the caregiver, the mother, was at least sufficiently concerned about the child’s wellbeing to attempt to summons some sort of assistance.
A.Yes.
Q.Which notwithstanding that it is a friend, not medical authorities, it is precisely what you were saying you would expect in the unfolding cascade of a shaken impact syndrome, correct.
A. Correct, yes.” (emphasis added)
This reference to the “unfolding cascade of a shaken impact syndrome” is consistent with the evidence of Professor Blumberg as to a child initially not being its normal self from the time of the initial trauma until a phase is reached when there is decompensation from which point things happen with great rapidity and are inevitably lethal.
As appears from the discussion of the medical evidence I am confronted with a range of opinion from a number of highly qualified expert witnesses as to the possible timeframe within which this injury could have been inflicted on Crystal. As I said earlier however, Dr Keeley is the high point of the prosecution case. If I was satisfied beyond reasonable doubt that he is correct in his opinion that the injury was inflicted in the afternoon then I would be able to infer from that proven fact that the accused was the person to have inflicted it. Dr Keeley’s opinion is however based on the rather scant history he obtained from the accused as to how Crystal was behaving in the course of the day.

The history Dr Keeley obtained from the accused is not however consistent with that obtained by the ambulance officers. Dr Keeley ameliorated his position when it was suggested that his understanding of the history might be incorrect. None of the other medical witnesses could rule out the possibility of an incident at 8.30 am setting in motion the chain of events which culminated in Crystal’s death.
If Crystal was only exhibiting her usual feeding difficulties, and was otherwise normal, at the time of the phone call to Mrs Smith that would enable the inference to be drawn that the injury occurred thereafter. On the other hand, if Crystal was limp and unresponsive and ill all day and “not her usual self” that would be consistent with her having received the injury in the morning. On that basis Hayes could not be excluded as the possible offender. There is however a paucity of evidence to enable a determination to be made as to the true state of affairs with respect to Crystal in the course of the day and I am left with conflicting possibilities. Having considered all of these matters I am left in the position of being unable to say where the truth of the matter lies. In that circumstance I am obliged to give the benefit of the doubt to the accused.
I have not discussed the considerable body of evidence concerned with the possibility of Crystal having a susceptibility or vulnerability to severe trauma arising out of her earlier injuries, that is, whether the fact that she had suffered an earlier injury causing subdural bleeding may have predisposed her to catastrophic results from less severe trauma than someone who had not had an earlier subdural bleed. If I had been satisfied beyond reasonable doubt that the accused had inflicted an unlawful injury to Crystal this topic would have been of particular relevance to the third element to be proved with respect to the crime of manslaughter, that is, whether at the time of the infliction of that injury the accused appreciated that she was exposing Crystal to the risk of serious injury. It is unnecessary for me to consider this matter, however, as the prosecution has failed to exclude as a reasonable possibility that Hayes was the person to have inflicted the injury upon Crystal. There is therefore a rational hypothesis consistent with innocence. The first element of the crime of manslaughter has not been proved beyond reasonable doubt. I therefore return a verdict of not guilty.

[2003] SASC 61

5 March 2003