R v McGregor

[2025] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v MCGREGOR

Criminal Trial by Judge Alone

[2025] SADC 22

Reasons for the Verdicts of his Honour Judge Muscat 

12 March 2025

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MANSLAUGHTER - CRIMINAL NEGLECT

The defendant is charged with the manslaughter and criminal neglect of his 21-day-old son.  The criminal neglect charge has not been laid as an alternative to the manslaughter charge.

The child sustained rib fractures and serious head injuries sometime between about 12:15 pm and 4:00 pm on Wednesday 21 April 2021.  During this time, only the defendant and the child's mother had the opportunity to inflict the injuries on their child.  The injuries were caused by the child being shaken or thrown and subjected to rotational or angular forces to the head, causing damage to the brain.  Thereafter, the child’s condition deteriorated until he died on Friday 23 April 2021. 

The issue on the manslaughter charge was the identity of the person who inflicted the head injuries on the child.  The prosecution had to prove beyond a reasonable doubt that it was not the child's mother while also proving beyond a reasonable doubt that it was the defendant who inflicted the head injuries on their child.  The child's mother had already pleaded guilty to the criminal neglect of her child and was sentenced.

The prosecution called a forensic paediatrician to explain the likely mechanism involved in causing the child’s injuries and the symptoms that would be exhibited by a child following the infliction of the brain injuries.  The prosecution called the child’s mother, who denied that she had harmed her child.  In a number of police interviews the defendant denied that he had inflicted the injuries by shaking his child.  The case against the defendant is circumstantial in nature. 

In relation to the criminal neglect charge, it was accepted that the child’s condition deteriorated following the infliction of the head injuries.  It was also accepted by the defendant that there was an omission by him to prevent harm to his child by failing to seek medical care, which led to the child’s continuing deteriorating state.  The issue on this charge was whether the steps that the defendant took in purchasing and administering Panadol to his child were what is reasonably expected in the circumstances and that a criminal penalty would not be warranted.

I find that the defendant inflicted the head injuries on his child by deliberately shaking him.  The combined force of the inferences to be drawn from the whole of the evidence excludes any alternative hypothesis as being a reasonable possibility. 

I find that the defendant’s failure to seek timely medical care for his child was so serious in the circumstances that a criminal penalty is warranted.  Purchasing and continuing to administer Panadol is not what is reasonably expected in the circumstances.

Verdicts:  Guilty of both counts.

Criminal Law Consolidation Act 1935 (SA) ss 13B, 14, 21; Evidence Act 1929 (SA) ss 34P(1), 34P(2), 34R(1), referred to.
Burns v R (2012) 246 CLR 334; R v Abdul-Rasool (2008) 18 VR 586; Wilson v R (1992) 174 CLR 313, considered.

R v MCGREGOR
[2025] SADC 22

Overview

1. The defendant is charged with the manslaughter and criminal neglect of his baby son, Alvin, who was 21 days old when he died.

2. The defendant has elected to be tried by judge alone.[1]

   [1]     See Election for Trial by Judge Alone filed 17 October 2023.

3. The defendant and Rebecca Lea Denton were in a relationship for a number of years.  Denton has another child, Blake, from a previous relationship.  Blake was aged 11 years when Alvin was born.  The family resided together at an address in Christie Downs.

4. Alvin was born on 2 April 2021, at the Flinders Medical Centre.  He was a small baby, weighing 2.525 kg at birth. 

5. Denton was discharged from hospital on 4 April 2021, while Alvin remained for some tests on his bowel following some bilious vomit.  Alvin left the hospital with his parents on the morning of 5 April 2021.  Thereafter the defendant and Denton were solely responsible for Alvin’s care.  Alvin was bottle fed from birth.

6. There were no concerns with Alvin’s health and wellbeing after he arrived home from the hospital.  The evidence revealed that Alvin was a normal, healthy baby.  Photographs taken of Alvin, following his birth and up to 8:51 am on 21 April 2021, confirm this.[2]

   [2]     P10; P11.

7. Denton and the defendant took turns feeding Alvin at night so the other could sleep through the night and be rested.  Alvin would sleep in his bassinet in the loungeroom and either Denton or the defendant (depending on whose turn it was) would sleep on the couch while the other slept in the bedroom.

8. At about 10:30 am on Wednesday 21 April 2021, Alvin was left in the sole care of the defendant, while Denton went shopping with her stepmother.

9. At 12:14 pm Denton received a call from the defendant who told her that he had tripped over the dog and accidentally knocked the bassinet on its side with Alvin inside it.  The defendant said that Alvin was bleeding from a cut on his lip.  The defendant was distressed during the call and crying.  Denton and her stepmother immediately returned home.  The defendant was sitting on the computer chair holding Alvin applying an ice pack to Alvin’s upper lip.  The defendant was crying.  Denton took Alvin from the defendant to comfort Alvin and check his wellbeing.

10. The defendant said to Denton and her stepmother when they returned home that Alvin had awoken and as the defendant was getting up from the couch to attend to him, the family dog got up at the same time causing him to trip over the dog.  The defendant said that as he tripped over the dog, his arm swung out, knocking the bassinet and causing it to fall to its side with Alvin in it.  The defendant said Alvin must have struck his face on a music box attached to the inside of the bassinet, causing a cut to Alvin’s lip.  Denton said the defendant told her he was also concerned that Alvin may develop a black eye.

11. Denton said that as Alvin had settled and was already asleep, a decision was made not to seek medical assistance for Alvin at that time, but to monitor Alvin, and if his condition worsened, seek medical attention.  As Alvin was asleep Denton placed him back into the bassinet.

12. Later that afternoon the defendant purchased some children’s Panadol for Alvin from a nearby chemist.

13. Alvin had a bottle feed at around 4:30 pm and was given some Panadol.

14. Photographs taken of Alvin later that evening and on Thursday 22 April 2021 show that Alvin’s condition was deteriorating, consistent with having suffered a head injury.  

15. Denton said that Alvin’s feeding was not the same following the bassinet incident and that he was, for the most part, either asleep or drowsy.  The photographs that were taken of Alvin during this time support this.  Despite this, both Denton and the defendant said they did not notice any visible signs of harm on Alvin’s body and that he seemed normal.  Neither Denton nor the defendant considered that Alvin’s condition necessitated them seeking any medical treatment for Alvin.

16. On Thursday night it was Denton’s turn to sleep in the loungeroom and attend to Alvin’s night feeds.  Alvin was usually fed every four hours.  Alvin was last fed at 4:30 pm and he did not want to take the bottle at 8:30 pm.  Denton forgot to set the alarm for Alvin’s next feed, which was scheduled for 12:30 am on Friday 23 April 2021.  Denton said she awoke at 4:30 am and checked on Alvin.  She said she could hear that Alvin had ‘chesty breathing’, as if he had phlegm on his chest.  Denton thought Alvin might be hot because the room was warm, so removed the blanket covering him.  Denton did not feed Alvin at this time and went back to sleep.

17. At around 6:30 am Denton awoke and attended to Alvin to feed him.  Denton had prepared his bottle.  Denton said she found that Alvin was cold and unresponsive.  She took Alvin into the bedroom where the defendant was sleeping.  The defendant performed CPR on Alvin before he and Denton rushed Alvin to the Noarlunga Hospital where Alvin was sadly pronounced dead.

18. During a series of police interviews, the defendant repeated the account that he tripped over the family dog causing the bassinet to tip onto its side with Alvin in it.  He said that the only injuries Alvin suffered when the bassinet tipped over, were a cut to the inside of Alvin’s top lip and a small area of discolouration to the left eye.  He said that both injuries dissipated rapidly with the application of an ice pack.  The defendant stated he had not taken Alvin for medical treatment after the bassinet incident because he did not consider that Alvin required any hospital treatment, although he purchased some Panadol at 3:50 pm as a precautionary measure for any pain that Alvin might have been experiencing.  He said that Alvin did not display any abnormal signs following the bassinet incident that would have necessitated Alvin requiring any hospital or medical treatment. He denied doing any deliberate act that caused any injuries to Alvin. 

19. The postmortem examination revealed that Alvin sustained a number of serious injuries, consistent with a non-accidental infliction of those injuries.  The injuries included rib fractures, bruising to two separate parts of the scalp, subdural and subarachnoid haemorrhages over the brain, a left temporal lobe contusion, hypoxic ischaemic damage of the brain, haemorrhages to the eyes, including retinal detachment of both eyes, bruising to the back, an abrasion to the upper lip, an injury to the frenulum[3] and a small bruise to the left cheek.

    [3]     A thin tissue that attaches the inside of the middle upper part of the lip to the gum.

20. The cause of death was attributed to a head injury, specifically ‘blunt cranio‑cerebral trauma’, involving rotational or angular forces of the head with or without impact.

21. The injuries noted at the postmortem examination were consistent with Alvin being held tightly around the chest and shaken or thrust about, at least once, during which Alvin’s head made contact with an uneven surface. 

22. Alvin’s deteriorating state, in which he exhibited symptoms of drowsiness, sleep, and slow feeding, was consistent with a serious head injury that affected his consciousness.

23. Denton denied causing any harm to Alvin.  She pleaded guilty to criminal neglect by failing to seek medical treatment for Alvin following what she understood happened in the bassinet incident described to her by the defendant.

24. The issue in the trial on the charge of manslaughter is the identity of the person who inflicted the serious head injuries on Alvin that caused his death.

25. On the evidence, only the defendant or Denton had the opportunity to inflict the fatal injuries. 

26. The prosecution case on manslaughter is that the defendant’s account of the harm sustained by Alvin is false, and that he inflicted the fractures and head injuries on Alvin when Alvin was in his sole care on 21 April 2021 by shaking him, while Denton was away from the house with her stepmother.  The prosecution case is that the defendant inflicted the injuries on Alvin, as revealed in the postmortem examination, through an unlawful and dangerous act, or acts, that ultimately caused Alvin’s death.  The prosecution case is that the defendant, while forcefully holding Alvin around the chest, either shook or threw Alvin, striking him against a hard, uneven surface, and, in doing so, caused the brain trauma that ultimately led to Alvin’s death. 

27. The charge of criminal neglect, somewhat unusually, was not charged as an alternative to manslaughter.  The prosecution case on this charge involves the defendant’s failure to seek timely medical care for Alvin, when he was aware or ought to have been aware, through Alvin’s deteriorating condition across Wednesday and Thursday, that there was an appreciable risk that Alvin’s physical and mental wellbeing was deteriorating.  The prosecution case is that the defendant failed to take steps he could reasonably be expected to have taken to protect Alvin from the harm being occasioned through the defendant’s failure to seek medical care for Alvin.  The prosecution case is that the failure to seek medical care for Alvin is so serious in the circumstances that a criminal penalty is warranted.

28. I am satisfied beyond a reasonable doubt that the defendant inflicted the injuries Alvin sustained, as noted at postmortem, with the cause of those injuries, as explained by the paediatrician, being angular or rotational forces, likely through a deliberate act of shaking or throwing, with an impact onto an uneven surface.

29. In reaching this conclusion I have excluded as a reasonable possibility that Denton was responsible for inflicting the injuries Alvin sustained.

30. I am satisfied beyond a reasonable doubt that the defendant’s failure to seek timely medical care for Alvin amounts to criminal neglect. 

31. I find the defendant guilty of both the manslaughter of Alvin and the criminal neglect of Alvin.

32. I now set out the evidence in detail and explain my reasons for finding the defendant guilty of the charges.

    Onus and standard of proof

33. The prosecution bears the onus of proving each charge against the defendant beyond a reasonable doubt.

34. The defendant is not required to prove anything.  While he has given accounts explaining how Alvin was accidentally harmed, the actions taken after the accident, his observations of Alvin, and denied that he inflicted the rib fractures and head injuries, he does not have to prove his innocence of the offences.  Instead, the prosecution must exclude as a reasonable possibility what the defendant has said in his accounts to the police.

35. In these reasons, whenever I have used expressions such as ‘proved’, ‘established’ or ‘satisfied’, in relation to proof of an element of the offence, I mean ‘beyond a reasonable doubt’.      

    Elements of the offences

    Manslaughter

36. There are four elements of the offence of manslaughter, which the prosecution must prove beyond a reasonable doubt.  They are:

    i.The defendant’s act, or series of acts, caused the death of Alvin.  In this sense, it must be proved that the defendant’s act, or series of acts, was a substantive or significant cause of Alvin’s death;

    ii.The defendant’s act, or acts, in causing Alvin’s death was voluntary and deliberate;

    iii.The defendant’s act, or acts, was unlawful; and

    iv.The defendant’s unlawful act, or acts, was dangerous.[4]  This means that the defendant’s act, or acts, must expose Alvin to an appreciable risk[5] of serious injury.  This is to be assessed objectively – whether a reasonable person in the defendant’s position would have realised, that through their act or acts, they were exposing Alvin to an appreciable risk of serious injury.  Whether Alvin was exposed to an appreciable risk of serious injury is qualitative and is to be decided in a commonsense manner taking into account that the enquiry concerns criminal responsibility.[6]

    [4]     Wilson v R (1992) 174 CLR 313; Burns v R (2012) 246 CLR 334.

    [5]     An ‘appreciable risk’ means a risk that is real and not theoretical; more than a remote or mere possibility that the act might cause serious injury: R v Abdul-Rasool (2008) 18 VR 586 per Redlich JA. Although this was in the context of discussing the meaning of ‘appreciable risk’ in relation to an offence of endangering life, there is no reason to suppose the phrase should be interpreted differently in relation to its meaning in an unlawful and dangerous manslaughter and nor for that matter in relation to its meaning in the offence of criminal neglect.

    [6]     Burns v R (2012) 246 CLR 334 at [9].

    Criminal neglect

37. Given the factual basis upon which the prosecution sought to prove this offence as particularised during its closing address, it is necessary to set out the relevant provisions in the Criminal Law Consolidation Act1935 (SA) creating the offence.

    Division 1A—Criminal neglect etc

    13B—Interpretation

    (1)In this Division—

    act includes—

    (a)     an omission; and

    (b)     a course of conduct;

    child means a person under 16 years of age;

    cognitive impairment includes—

    (a)     a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);

    (b)     an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder);

    (c)     a mental illness;

    vulnerable adult means a person aged 16 years or above who is significantly impaired through physical disability, cognitive impairment, illness or infirmity.

    (2)Subject to subsection (3), in this Division the following terms and phrases have the same meaning as in Division 7A:

    (a)     cause;

    (b)     harm.

    (3)For the purposes of this Division, a reference to harm will be taken to include detriment caused to the physical, mental or emotional wellbeing or development of a child or vulnerable adult (whether temporary or permanent).

    (4)For the purposes of this Division, a defendant has a duty of care to a victim if the defendant is a parent or guardian of the victim or has assumed responsibility for the victim’s care.

    14—Criminal neglect

    (1)A person (the defendant) is guilty of the offence of criminal neglect if—

    (a)     a child or a vulnerable adult (the victim) dies or suffers harm as a result of an act; and

    (b)     the defendant had, at the time of the act, a duty of care to the victim; and

    (c)     the defendant was, or ought to have been, aware that there was an appreciable risk that harm would be caused to the victim by the act; and

    (d)     the defendant failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect the victim from harm and the defendant’s failure to do so was, in the circumstances, so serious that a criminal penalty is warranted.

    Maximum penalty:

    (a)     where the victim dies—imprisonment for life; or

    (b)     in any other case—imprisonment for 15 years.

    (2)If a jury considering a charge of criminal neglect against a defendant finds that—

    (a)     there is reasonable doubt as to the identity of the person who committed the act that caused the victim's death or harm; but

    (b)     the act can only have been the act of the defendant or some other person who, on the evidence, may have committed the act,

    the jury may find the defendant guilty of the charge of criminal neglect even though of the opinion that the act may have been the act of the defendant.

    (3)If a defendant is charged with an offence against this section in respect of a course of conduct—

    (a)     it is not necessary to prove that the defendant was, or ought to have been, aware that there was an appreciable risk that harm would be caused to the victim by each act making up the course of conduct; and

    (b)     the information need not—

    (i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this or any other Act; or

    (ii)identify particular acts or the occasions on which, places at which or order in which acts occurred; or

    (iii)identify particular acts as causing, wholly or partly, particular harm to the victim.

    (4)A defendant may be charged with an offence against this section in respect of a course of conduct even if some of the acts making up the course of conduct occurred before the commencement of this section.

    Division 7A—Causing physical or mental harm

    21—Interpretation

    In this Division—

    cause—a person causes harm if the person's conduct is the sole cause of the harm or substantially contributes to the harm;

    If a victim suffers serious harm as a result of multiple acts of harm and those acts occur in the course of the same incident, or together constitute a single course of conduct, a person who commits any of the acts causing harm is taken to cause serious harm even though the harm caused by the act might not, if considered in isolation, amount to serious harm.

    harm means physical or mental harm (whether temporary or permanent);

    …

    physical harm includes—

    (a)     unconsciousness;

    (b)     pain;

    (c)     disfigurement;

    (d)     infection with a disease;

1. There are five elements of the offence of criminal neglect which the prosecution must prove beyond a reasonable doubt.  They are:

   i.That Alvin died or suffered harm as a result of an act or series of acts.  In this case the prosecution has particularised the act as an omission;

   ii.The defendant had a duty of care to Alvin;

   iii.The defendant was, or ought to have been, aware that there was an appreciable risk that harm would be caused to Alvin by that act, or acts;

   iv.The defendant failed to take steps, he could reasonably be expected to have taken in the circumstances to protect Alvin from harm; and

   v.The defendant’s failure to take such steps was, in the circumstances, so serious that a criminal penalty is warranted.

   Evidence

   Background

2. Alvin Tony McGregor was born on 2 April 2021 to parents Rebecca Lea Denton and Ashley John McGregor.[7]

   [7]     T 63.21.

3. Denton has another child, Blake, from a different relationship.   Blake was born on 16 May 2009.[8]  Denton separated from Blake’s father in 2015.[9]   Blake was 11 years old when Alvin was born and lived with Denton and the defendant at Christie Downs but was away from the house on 21 April 2021.

   [8]     T 63.9.

   [9]     T 63.7.

4. Denton had been in a relationship with the defendant for nearly four years when Alvin was born.[10] This was a planned pregnancy, with Denton falling pregnant soon after she stopped her contraception.[11]

   [10]   T 63.27.

   [11]   T 152.2.

   Drug use

5. Both Denton and the defendant were users of cannabis and methamphetamine.[12]  Cannabis plants were grown in the backyard of their property.[13] 

   [12]   T 63-64.

   [13]   P3.

6. Denton said she only commenced using drugs after she formed a relationship with the defendant.[14]  Denton admitted she had become addicted to smoking cannabis.[15]

   [14]   T 156.

   [15]   T 157.

7. Denton gave evidence that prior to pregnancy she was smoking cannabis every day[16] and would generally smoke ‘between eight to 10 bongs of cannabis a day’.[17]  Denton said the defendant would smoke the same amount of cannabis as her.[18]  Smoking cannabis was an activity they would do together.[19]  Denton said they would smoke the cannabis in the laundry.[20] 

   [16]   T 64.5.

   [17]   T 64.7.

   [18]   T 64.18.

   [19]   T 64.20.

   [20]   T 79.

8. Denton and the defendant would not use methamphetamine as often as cannabis.[21]  Denton said they would use methamphetamine only about every three months or more, depending on the availability of money to purchase it.[22] They would consume the methamphetamine together and would smoke it through an ice pipe.[23]

   [21]   T 64.

   [22]   T 64.

   [23]   T 65.3.

9. When Denton discovered she was pregnant with Alvin, she altered her drug use.[24]  While she continued to smoke cannabis, Denton said that she decreased the frequency of her use.[25]  She said she ‘stopped having as many’ bongs a day but ‘didn’t stop altogether’.[26]  Denton was unsure about the exact number of bongs she would have per day during pregnancy,[27] stating she would have a minimum of four bongs a day, ‘but it could have been more than that’.[28]  Denton said she knew that smoking cannabis whilst pregnant posed a risk to Alvin’s health.[29]  Denton said the defendant’s use of cannabis remained the same as it was prior to the pregnancy.[30]

   [24]   T 65.

   [25]   T 65.22.

   [26]   T 65.30.

   [27]   T 66.3.

   [28]   T 66.

   [29]   T 156-157.

   [30]   T 66.17.

10. Denton said she only used methamphetamine twice during her pregnancy.[31] The first time, when she was about 12 or 13 weeks pregnant, Denton and the defendant consumed eight points[32] over three to four days.[33]  The second time, when Denton was about four months pregnant, she and the defendant consumed eight points over about a week to a week and a half.[34]

    [31]   T 66.23.

    [32]   A ‘point’ of methamphetamine is 0.1 g.        

    [33]   T 66.

    [34]   T 67.

11. Denton admitted she had lied to the hospital staff, after Alvin was born, but before he was discharged, by failing to mention that she smoked cannabis and methamphetamine during pregnancy in circumstances where the enquiry related to an issue with Alvin’s health.[35] 

    [35]   T 160.

12. Denton also admitted not disclosing to the police, in an interview on 7 May 2021, when specifically asked about her drug use, that she had used methamphetamine (although she disclosed smoking cannabis).  Denton said she had not disclosed her methamphetamine use to the police because she was trying to protect herself.[36]

    [36]   T 159.

13. After Alvin was born, Denton said that her use of cannabis returned to the same frequency as before she was pregnant.[37]  She returned to smoking between eight to 10 bongs a day.[38]  Denton said the reason for this was because she was no longer pregnant and not because she was struggling with Alvin.[39] Denton said the defendant’s use of cannabis remained the same throughout this time.[40]  Denton said that she would smoke a bong of cannabis before she went to sleep (which was usually between 8:30 pm and 9:30 pm)[41] and then would not smoke her next bong again until the following morning.[42]

    [37]   T 79.21, 157.

    [38]   T 79.21, 195.

    [39]   T 157.28.

    [40]   T 79.31.

    [41]   T 158.

    [42]   T 158.

14. Denton said she stopped using drugs altogether in April 2021.[43] After Alvin passed away, the Department of Child Protection removed Blake from Denton’s care, and Denton was submitted to random drug testing.[44]  Denton said this prompted her to stop using drugs.[45]

    [43]   T 244.24.

    [44]   T 244.34-245.

    [45]   T 244. The defence position was that the evidence was relevant as it was a significant feature of the relationship between Denton and the defendant: T 249-250.

15. The evidence of the defendant’s drug use and growing cannabis plants at the property reveals that the defendant engaged in discreditable conduct.[46]  This evidence was not adduced by the prosecution in proof of the charges.  The only relevance of the defendant’s use of drugs and growing cannabis plants on the prosecution case, was said to be background or context evidence revealing how Denton and the defendant were living at the time.[47] 

    [46]   Evidence Act 1929 (SA) s 34P(1).

    [47]   Evidence Act s 34P(2)(a).

16. Insofar as the prosecution contended that the evidence could be used to determine whether the defendant was ‘caring and attentive and otherwise not a neglectful father’,[48] I will not use the evidence for that purpose, as I do not consider it has the probative value suggested.[49] 

    [48]   T 249.

    [49] Evidence Act s 34P(2)(a).

17. I have not used the evidence to reason that because the defendant has used drugs and was growing cannabis plants at the property that he is the sort of person who is more likely to have committed either of the offences he has been charged with.  The evidence is inadmissible for that purpose.[50]  The evidence has not been used in any adverse way against the defendant when considering whether the prosecution has proved either charge against him.[51]    

    [50]   Evidence Act s 34P(1)(a), (b).

    [51]   Evidence Act s 34R(1).

    Denton’s depression and medication

18. Denton said she has ‘suffered from depression for quite a while’.[52]  Denton said she was diagnosed with postnatal depression after Blake was born and prescribed Citalopram to deal with her depression.  She said she used this medication for about nine years.[53]  At the time of Alvin’s birth, Denton said she was taking Lovan (Fluoxetine) to treat her depression.[54]  Denton said she suffered with depression in the period before and after Alvin was born.[55]

    [52]   T 155.14.

    [53]   T 154.

    [54]   T 155.

    [55]   T 155.

19. On 15 April 2021, clinical nurse Penelope Braddon assessed Denton using the Edinburgh Postnatal Depression Scale.[56] Denton scored zero on the scale, meaning Denton was not exhibiting any active symptoms of postnatal depression at the time.[57]

    [56] P19 [13].

    [57] P19 [13].

20. Denton denied, under cross-examination, that she was crying on a daily basis during the week before Alvin passed away.[58]  She also denied not coping on the morning of 21 April 2021.[59]  There was no evidence that Denton had been crying on a daily basis or that she was not coping on the morning of 21 April 2021.

    2 April 2021 - 20 April 2021

    [58]   T 155.

    [59]   T 156.

    Alvin’s birth

21. Alvin was born on 2 April 2021 at 6:00 pm, at the Flinders Medical Centre. He was two weeks overdue, so Denton had an induced labour.[60]  Alvin was a small baby, weighing 2.525kg at birth.[61]

    [60]   T 67.

    [61]   T 74.32.

    Discharge from hospital

22. On 4 April 2021, Denton was discharged from hospital.[62] Alvin was not discharged at the same time, because the doctors wanted to conduct some tests to determine whether Alvin had an obstruction of the bowel, as Alvin had a bilious vomit.  When the test cleared Alvin of that possibility, he was discharged on the morning of 5 April 2021 and taken home by his parents.

    [62] T 68; P19 [2].

23. After being discharged from hospital, apart from the bilious vomit, there was nothing medically wrong with Alvin nor were any injuries detected to his body.[63]  

    [63] P19 [4].

    Sleeping and feeding arrangements

    Location of the bassinet

24. After Alvin was brought home he was often ‘swaddled’ or wrapped in blankets.[64]  Alvin slept in a bassinet in the loungeroom.[65]  The bassinet did not have a particular location where it would be positioned in the loungeroom, although later in the evidence it emerged that the bassinet was usually positioned in front of  a wall heater in the loungeroom behind the couches.[66]  Denton said she and the defendant would roll the bassinet around to wherever was closest to them.[67] When Denton would sleep in the loungeroom, she would place the bassinet at the end of the couch where her head would lie.[68] 

    Alternating feeding schedule

    [64]   T 83.

    [65]   T 69; This was the light brown couch seen in P3, photographs 23-26.

    [66]   T 70.3.

    [67]   T 70.

    [68]   T 70; See P3, photographs 23-27.

25. Alvin was bottle fed from birth.[69]  As Alvin was being bottle fed, Denton and the defendant decided to take turns feeding him.[70]  They arranged to take turns sleeping in the loungeroom with Alvin while the other slept in the bedroom.[71]  They would alternate ‘one night on, and one night off’.[72]  This was so they were not both tired all the time.[73]

    Record of feeding times

    [69]   Denton had a breast reduction surgery that prevented her from producing milk: T 70.

    [70]   T 73.

    [71]   T 73; See P2, bedroom 1; P3, photograph 65.

    [72]   T 73.23.

    [73]   T 73; P14, 23 April 2021.

26. Denton and the defendant kept a record of feeding times, quantities of milk fed to Alvin and nappy changes in an exercise book.[74]  Alvin was usually fed every four hours.[75]  An alarm was set for every four hours during the night.[76]  The ‘feeding book’, as it was described in the evidence, allowed them to know when Alvin had last fed so there would be no need to wake up the other to ascertain the last feed. 

    [74]   P4; See also P8.

    [75]   T 74.

    [76]   T 74.

27. Denton said that the entries in the feeding book with a capital ‘L’ in ‘mL’ were in her own handwriting, whereas the entries with a lowercase ‘l’ in ‘ml’ were in the defendant’s handwriting,[77] although under cross-examination, Denton said that some of the entries with the capital ‘L’ in ‘mL’ were also in the defendant’s handwriting.[78] Denton said that she could tell the difference between her handwriting and the defendant’s.[79]

    Feeding book entries – Wednesday 21 April - Friday 23 April 2021

    [77]   T 77.

    [78]   T 181-182.

    [79]   T 181-182.

28. A schedule, created from P4 (the ‘feeding book’) for the period commencing 21 April 2021 until Alvin’s passing on 23 April 2021, reveals:[80]

    [80]   There were no entries made into the feeding book on Friday 23 April 2021, as Alvin did not feed again.

START	END	AMOUNT	NAPPY	NOTES
Wednesday 21 April 2021
1.15am	1.45am	100mLs	Wet	With anti-colic
5.05am	5.30am	50mLs	Dry
7.55am	8.40am	80mLs	Wet
11.40am	12.05pm	120mLs	Wet
4.30pm	5.00pm	60mLs	Dry	With anti-colic
8.20pm	8.40pm	60mLs	Wet/poo
Thursday 22 April 2021
1.00am	1.30am	120mls	Wee	Panadol 0.5mls Due at 5am Panadol
5.30am	6.00am	60mls	Wee/poo	Had Panadol 8am
1.00pm	1.20pm	90mLs	Wee	Had Panadol at 1pm
4.10pm	4.30pm	90mLs	Wet	With Anti-colic

Visits and outings following Alvin arriving home

Flinders Medical Centre Maternity Outreach Service

1. On 6 April 2021, in the mid-afternoon, midwife, Kara Bull, visited Alvin at the home as part of the Flinders Medical Centre (‘FMC’) Maternity Outreach Service.[81] The purpose of at-home visits by FMC is to check the welfare of newborn babies and their mothers, including by ensuring babies are feeding and gaining weight.  Generally, babies are stripped naked, weighed and assessed by the visiting midwife or nurse.[82]  Bull weighed and assessed Alvin while Alvin was naked. Bull did not notice any bruising and in her assessment reported that Alvin was behaving like a normal, healthy baby.[83] Due to Alvin’s small size, Bull arranged a further Maternity Outreach Service visit to the home to ensure Alvin was appropriately gaining weight.[84]

   Check up at FMC

   [81] P19 [6].

   [82] P19 [7].

   [83] P19 [8].

   [84] P19 [9].

2. On 9 April 2021, Alvin was taken to the FMC for a check-up in relation to the earlier concern that there may have been an obstruction in his stomach.[85]  As a result of the bilious vomit, noted on 4 April 2021, which kept Alvin in hospital an extra day, Dr Morris, consultant neonatologist, ordered a barium swallow study of Alvin as an outpatient.  The study returned a normal result.  Alvin did not have any further bilious vomits and no further investigation was required.[86]

   FMC Maternity Outreach Service

   [85]   T 75.2, 136.

   [86] P19 [5].

3. On the same day, 9 April 2021, midwife Nicole Sakolevas visited Alvin at home as part of the FMC Maternity Outreach Service.[87]  Sakolevas stripped, weighed and assessed Alvin while he was naked.  Sakolevas reported no concerns about Alvin’s health, apart from some observed flaky skin.  Sakolevas did not consider that any follow ups were required in relation to Alvin’s health or wellbeing.  Sakolevas did not observe any injuries to Alvin.[88]

   Child and Family Health Service visit

   [87] P19 [10].

   [88] P19 [11].

4. On 15 April 2021,[89] at around 9:30 am, clinical nurse Penelope Braddon, of Child and Family Health Service (‘CaFHS’), visited the home to conduct a universal health check on Alvin.  Alvin was stripped naked and weighed.  Braddon had no concerns with Alvin’s wellbeing.  She did not observe any injuries to Alvin. She noted Alvin appeared to be a healthy baby, although of a smaller size.[90]  Denton and Braddon discussed Alvin’s feeding routine.[91]  During this visit Braddon also assessed Denton using the Edinburgh Postnatal Depression Scale and found no active symptoms of postnatal depression exhibited by Denton.[92]

   80th birthday party

   [89]   Denton recalls this visit taking place on 12 April 2021: T 182-183, 229.

   [90] P19 [12].

   [91]   T 183.

   [92] P19 [13].

5. On 17 April 2021, Denton, the defendant and Alvin attended an 80^th birthday party for the defendant’s grandmother.[93]

   ENT examination

   [93]   T 183.

6. On 19 April 2021, Denton attended CaFHS Morphett Vale with Alvin for a hearing test.[94]  Alvin passed the hearing test.  No injuries were observed on Alvin at this time; however, Alvin’s clothing was not removed for an examination of the body.[95]  Denton took a photograph of Alvin while at the appointment.[96]  No injuries to Alvin’s face are visible in the photograph.

   Visits by Samuel Denton and Sarah Harris

   [94] P19 [14].

   [95]   P19 [14]; See T 136, 183.3, 229.

   [96]   T 136.27; P10, photograph 20, taken on 19 April 2021 at 08:57:14 am.

7. Denton’s father, Samuel Denton, and his partner, Sarah Harris, visited Alvin at home on two occasions. The first visit was on a weekday within 24 - 48 hours of Alvin being discharged from the hospital.[97]  This visit was for around one hour.[98]  The second visit took place on either Sunday 18 April or Monday 19 April 2021.[99]  At this second visit Samuel Denton held Alvin.  He said Alvin appeared alert, happy and healthy.[100]  He did not notice anything abnormal about Alvin.  Photographs taken of Alvin at this visit show Alvin as a happy and healthy baby with no visible injuries.[101]  Harris said that Alvin looked ‘small … but other than that seemed like a perfect, normal newborn’.[102] 

   Blake stays with his grandmother

   [97]   T 288.

   [98]   T 288.

   [99]   T 290, 229.34. Denton agreed under cross-examination that this visit was on 19 April 2021: T 229.

   [100] T 284.

   [101] P11.

   [102] T 289.35; See P11.

8. On Tuesday 20 April 2021, Blake went to stay at his maternal grandmother’s house. Blake stayed there for two nights as it was the school holiday period.[103]  Denton collected Blake from her mother’s house on Thursday 22 April 2021, while the defendant’s parents were visiting Alvin that afternoon.[104] 

   Wednesday 21 April 2021

   [103] T 86.

   [104] T 129.

   Prior to Denton leaving home at 10:30 am

9. Denton gave evidence that from her perspective, up until 21 April 2021, Alvin was a happy, healthy baby.[105]  There were no incidents that she was aware of where Alvin had been injured.[106]

   [105] T 81.6

   [106] T 80.35.

10. Denton agreed that Alvin was a very placid baby, that he did not cry a lot and was easy to settle.[107]

    [107] T 238.

11. On Wednesday 21 April 2021, at around 7:55 am, the feeding book records that Denton fed Alvin.[108]  

    [108] P4, 7: The last feed before Denton left for the shops was 80 mL between 7:55 am and 8:40 am. The next entry in the feeding book is for 120 mL between 11:40 am and 12:05 am when Denton was out with Bickley.  Denton’s evidence was that she fed Alvin at 10:00 am but this does not accord with the entries in the feeding book and Alvin’s usual routine of feeding every four hours: see T 97.20.

12. Denton took two photographs of Alvin at 8:51:39 am and 8:51:45 am,[109] in which Alvin appears normal.

    [109] P10, photographs 21-22.

13. After feeding Alvin, Denton said she placed him back into the bassinet.  The bassinet was in the loungeroom and positioned by the heater.[110]

    [110] T 246.

14. Denton said she then telephoned Sheryl Bickley, who she described as being a stepmother to her.[111] Denton asked Bickley what she was doing that day.[112] Bickley told Denton she was going to do some shopping and Denton asked if she could come along.[113]

    [111] Sheryl Bickley is the partner of Denton’s mother’s ex-partner.

    [112] T 253.

    [113] T 253.

    Shopping with Sheryl Bickley

15. Around 10:30 am Denton left home to pick up Bickley, who lived in Port Noarlunga South.[114] They went to the Woodcroft Shopping Centre to look at clothing shops and then went to Dee Dee’s Café in Morphett Vale to have coffee.[115]

    [114] T 85; While Denton’s and Bickley’s evidence differs slightly in the time the events occurred on Wednesday the order of the events remain the same.

    [115] T 87.

16. Denton left Alvin in the defendant’s care.[116]

    [116] T 87.

17. Bickley said she had seen Alvin on a number of occasions before 21 April 2021 and agreed that ‘he appeared to be fine, sleeping and feeding … he was a normal, happy healthy baby’.[117]

    [117] T 253.16.

18. At 10:30:35 am the defendant attempted to call Denton.[118]  The call was not answered.

    [118] P19 [19 (a)].

19. At 10:31:06 am the defendant called Denton, with the call recorded as lasting nine seconds.[119]

    [119] P19 [19(b)].

20. At 11:55:22 am Denton sent a text message to the defendant:[120]

    I’m just having a coffee with Sheryl, then I’ll drop her home and be home.  She bought us a pouch and I have stuff from Trevor too. :) xxx

    [120] P19 [19 (c)]; P24 [24].

21. The defendant replied to this text message at 12:08:45 pm:[121]

    Awesome baby xoxoxoxox

    [121] P19 [19(d)]; P24 [25].

    The telephone call

22. At 12:14:28 pm Denton received a call from the defendant.[122]  Denton said she was still at Dee Dee’s Café having a coffee with Bickley.[123]  The call lasted 53 seconds.[124]

    [122] P19 [19(e)]; Denton’s evidence was that it was around 12:00 pm: T 88.

    [123] T 88.

    [124] P19 [19(e)].

1. Denton said she could hear Alvin crying and screaming in the background while speaking with the defendant.[125]  The defendant told her there had been an incident with the bassinet tipping over and Alvin being injured.  Denton said the defendant explained he got up to check on Alvin.  The defendant said that the family dog, ‘Thor’, got up at the same time and that he tripped over the dog.[126]  Denton said the defendant told her that the only thing he could grab onto was the bassinet, and when he did, it tipped over, and knocked Alvin out of the bassinet.[127]

   [125] T 88.8.

   [126] T 88.9.

   [127] T 88.11.

2. Denton said she asked the defendant, ‘Do we need to take him to the hospital?’, and the defendant said ‘No, we'll just see how he is when you get back’, and she said, ‘Okay, I'll be there very soon’.[128]  In cross-examination, Denton said she could not recall if it was her or the defendant who asked the question about needing to take Alvin to the hospital, but she knew that it had been mentioned during the call.[129]

   [128] T 88.

   [129] T 162.

3. Bickley said Denton was very stressed and upset when she received the call from the defendant.[130]

   [130] T 254.35.

4. Denton agreed that the defendant sounded upset, and that he was crying during the call.[131]

   [131] T 162.

   Denton returns home

5. After the call ended, Denton and Bickley left Dee Dee’s Café and returned immediately home.[132]  The café is about a 10-minute drive from the home.[133]  Denton said she tried to get home as quick as possible.[134]

   [132] T 89.

   [133] T 89.

   [134] T 89.

6. When Denton arrived home and entered the house, the defendant was sitting on a computer chair in the dining room.  He was holding Alvin in his arms, ‘cradling him like you do with a normal newborn baby’.[135]  Denton said that Alvin was not crying and was asleep.[136]  Denton said the defendant was holding an ice pack, wrapped in a tea towel, to Alvin’s top lip.[137]

   [135] T 90.20; Bickley confirms this: T 256.

   [136] T 90.2; Bickley also confirms that Alvin was asleep in the defendant’s arms: T 256.

   [137] T 90.24.

7. Denton did not remember where the bassinet was when she entered the house as she was not paying attention to her surroundings,[138] although she said that she assumed it was upright because she would have noticed if it was tipped over.[139]

   [138] T 90.11.

   [139] T 90.15.

8. Bickley said the bassinet was in its normal position, upright, in front of the heater, and at the end of the couch, in the loungeroom.[140]

   [140] T 258-260, 271.

9. Denton said the defendant was upset, very distraught, and that he was crying.[141]  She agreed under cross-examination that the defendant looked hysterical and had tears flowing down his face.[142]  Denton said that the defendant was ‘annoyed with himself’ for what happened and told her that he wished he grabbed onto something else when he tripped over the dog.[143]  Denton said the defendant was blaming the dog for getting up at the same time.[144]

   [141] T 90, 93.

   [142] T 164.33, 165.

   [143] T 90-91.

   [144] T 90.35.

10. Denton said the defendant repeated what he had told her over the telephone, that he and the dog got up at the same time causing him to trip over the dog and the only thing he could grab onto was the bassinet, which tipped over, and that Alvin fell out of the bassinet and hit his face on the music box in the bassinet.[145]

    [145] T 91.7.

11. Denton took Alvin from the defendant’s arms and told the defendant to go outside, have a cigarette and calm down.[146]

    [146] T 93.

12. Bickley also gave evidence that Denton was trying to calm the defendant down because he was crying and really upset.[147]  Bickley said the defendant was crying and saying ‘I’m sorry. I just tripped’.[148]

    [147] T 259-260.

    [148] T 257.

13. Denton said the defendant passed Alvin and the ice pack over to her and then he went outside.[149]  Denton held Alvin and kept the ice pack on his lip.[150]  Before keeping the ice pack positioned on Alvin’s lip, Denton removed the ice pack to have a look at Alvin and noticed ‘a little cut underneath his top lip’.[151]

    [149] T 93.

    [150] T 93.

    [151] T 93-94.

14. Denton said that Alvin did not wake up or stir after she took him from the defendant, nor when she was placing the ice pack back onto his lip.[152]  Denton said that the ice pack was still cold.[153]

    [152] T 94.

    [153] T 94.

15. Bickley said that Alvin appeared to be asleep, but under cross-examination agreed she had told the police in a statement that she looked over the defendant’s shoulder and noticed that Alvin was ‘awake but drowsy, going back to sleep’.[154]  Bickley agreed this is what she observed.[155]

    [154] T 267.

    [155] T 267.

16. Apart from the injury on his lip, Denton did not notice any other injuries on Alvin.[156]  She said that Alvin’s appearance was the same as it had been earlier that morning and before she left home to go shopping with Bickley.[157]  Aside from what the defendant had told her happened, Denton said she did not have any other concerns about Alvin’s wellbeing at that time.[158]

    [156] T 94.

    [157] T 94.19.

    [158] T 97.

17. Bickley said she noticed blood on Alvin’s face and on the defendant’s t‑shirt.[159]  She said that Alvin had a cut on his lip[160] but apart from that she did not notice any other injuries.[161]  Bickley said that when the defendant was holding Alvin, she did not notice anything other than Alvin as that was her focus.  Bickley said that nothing was being done about the cut to Alvin’s lip when the defendant was holding Alvin.[162]

    [159] T 279.9-279.12.

    [160] Bickley said the cut was directly below Alvin’s nose and slightly to the left on top of lip: T 256-257.

    [161] T 256.

    [162] T 527.13-527.18.

18. Bickley said that her partner Trevor Creek arrived at the house to pick her up about 10 to 15 minutes after she and Denton had returned.[163]  Bickley said she left the house after about one or two minutes of her partner arriving.[164]

    [163] T 258.

    [164] T 261, 269.

    Position of the music box in the bassinet

19. When describing the position of the music box, Denton said that she remembered that it was ‘hanging in the bassinet’.[165]  She described it hanging from the bar located underneath the canopy of the bassinet.[166] Denton marked this position with an ‘X’ and letters ‘MB’ on photograph 27 of P3.[167]

    [165] T 91-93; 173-174.

    [166] T 91-92.

    [167] P3, photograph 27.

20. Denton was shown photograph 104 of P5, which depicted the music box attached to the right side of the bassinet.[168]  Denton accepted that there could have been times when the music box was positioned in this way, however, she could not recall it being positioned in this way and ‘had always thought it was hanging off the top’.[169]

    [168] P5, photograph 104; T 92.

    [169] T 92.38-93.1.

21. Denton said that the music box was hanging in the bassinet before she left the house on Wednesday 21 April 2021.[170] Denton said that when she returned home, the music box was no longer in the bassinet.[171]  Denton said when she next noticed the music box it was on the computer desk.[172]

    [170] T 93.

    [171] T 93.

    [172] T 93; The music box was located by police on the desk in the office: T 38.

22. In cross-examination, it was suggested to Denton that the music box was never hung from the top of the bassinet and was either secured on the left or right side of the bassinet.[173]  Denton responded to this saying, ‘It could have been, yes, but from memory, I only remember it being hung’.[174]  She said that ‘the only thing in my memory is I thought that it was hanging from the top of it’.[175]

    [173] T 172-173.

    [174] T 173.23.

    [175] T 174.3.

    Discussion about seeking medical care

23. Denton said she had a discussion with the defendant and Bickley about seeking medical attention for Alvin.[176]  Denton said they thought about it and decided the injury was not as bad as they thought it was because Alvin had gone to sleep before she returned home and so decided that they would ‘wait and see’.[177]  Denton said, ‘That because [Alvin] had gone back to sleep and wasn’t hysterically crying anymore, we didn’t think that it was as bad as we thought’.[178]  

    [176] T 94.

    [177] T 94. Bickley, however, said there was no discussion in her presence about Alvin’s welfare and specifically no discussion about whether Alvin needed to be taken to a doctor or hospital: T 257-258, 268-269.

    [178] T 95.10, 170, 172.6,

24. Denton said that Alvin’s eyes were closed so she thought that he was asleep.[179]

    [179] T 170.33-170.36.

25. Denton denied under cross-examination that Alvin was sobbing.[180] Bickley also said that she did not remember Alvin sobbing.[181]

    [180] T 170.37-171.1.

    [181] T 267.

26. Denton said that she did not have any concerns for Alvin’s wellbeing after she returned home and checked him over.[182]

    [182] T 97.

27. Denton said she placed Alvin back into the bassinet and ‘just let him sleep’.[183] 

    [183] T 95.26.

28. Denton said she did not check on Alvin while he was sleeping in the bassinet.[184]

    [184] T 95.26, 97.7.

    Conversation about Alvin developing a black eye

29. A few hours after Denton returned home Denton said she had a conversation with the defendant during which he warned her about Alvin developing a black eye.[185] Denton said that the defendant told her that ‘Alvin could possibly develop a black eye from falling onto the music box’.[186]  Denton said, however, that at no stage did she notice an actual black eye on Alvin’s face.[187]

    [185] T 132-133.

    [186] T 133.

    [187] T 132.30, 134.17-134.21.

30. Denton maintained this position about never seeing Alvin with a black eye throughout her evidence. Under cross-examination a portion of Denton’s police interview of 23 April 2021 was played,  in which Denton told the police that Alvin had a black eye.[188]  Denton’s explanation for saying this to the police at that time was not that she had actually seen Alvin with a black eye, but because she was angry with the defendant after she was told of Alvin’s postmortem injuries and thought that the defendant had hurt Alvin and so she wanted to incriminate him.[189]

    [188] T 219.

    [189] T 220, 243.

31. However, on 22 April 2021, Bickley sent a Facebook message to Denton at 4:02 pm:[190]

    Your welcome love...crappy…seeing the dr in the morning…hows alvin and ash xox. [sic]

    [190] P24 [27].

32. Denton replied to this message at 4:14 pm:[191]

    Oh no, hopefully they can give you something better. Alvin has been very, very wingey today, it looks like he got a slight black eye. Ash is doing alright; he didn’t get a lot of sleep last night though. Alvin wouldn’t settle. [emphasis added]

    [191] P24 [27.2].

33. Despite what is obviously written in this reply to Bickley’s text, Denton maintained throughout her evidence that she did not see Alvin with a black eye.[192] 

    [192] Denton was recalled and gave further evidence, and this text was put to her.  Denton still maintained that she did not see Alvin with a black eye saying that she did not remember sending the text to Bickley: T 579-581.

34. This aspect of Denton’s evidence, of her saying she did not see Alvin with a black eye, is incongruous, given that the defendant himself admitted in his police interviews that Alvin had struck his eye on the music box and that there were signs of a very minor black eye, which he treated with an ice pack.[193]  I will return to discuss Denton’s evidence about this later in these reasons, as, naturally, this featured strongly in the defence address on assessing Denton’s credibility and reliability. 

    [193] See both interviews on 23 April 2021: P12, P14.

    Blood from the bassinet incident

35. Denton said that after returning home she did not see any blood on Alvin’s lip.[194]  Denton did notice the cut on Alvin’s lip because she specifically looked at Alvin’s lip, but said it was not bleeding.[195]

    [194] T 148.

    [195] T 148.

36. Denton said she ‘saw a little bit’ of blood on one of Alvin’s sheets.[196]  She also noticed blood on the sheet Alvin was wrapped in.[197] Denton said she thought that she and the defendant put the bloodied sheet in the laundry for washing.[198] Denton was shown a photograph of sheets or blankets depicted in photograph 6 of P6.[199]  Denton said she thought the staining on the blankets was Alvin’s blood from the day of the bassinet incident because they were Alvin’s blankets.[200]

    [196] T 146.9.

    [197] T 146.9.

    [198] T 146.12.

    [199] P6, photograph 6; T 145.

    [200] T 145.

37. When Denton returned home, she noticed blood on the defendant’s t-shirt when he was holding Alvin.[201] Denton said that after she took Alvin from the defendant’s arms, the defendant removed his t-shirt and threw it in the bin.[202] Denton said the defendant  told her that it was an old t-shirt and it would be hard to wash the stains out so it would be easier to just throw the t-shirt away.[203]

    [201] T 146.

    [202] T 146-147.

    [203] T 146-147.

    Feeding slowing down and administering Panadol

38. Denton said that after placing Alvin into the bassinet to sleep, Alvin did not wake again until around 4:30 pm when she woke Alvin for a feed.[204]  Denton said that at this time she did not notice any difference in Alvin’s appearance.[205] She said Alvin was awake.[206] 

    [204] T 95.37, 99-100. In her evidence, Denton said she could not recall if Alvin had woken himself or she had to wake him for the 4:30 pm feed: see T 97.33. This feed is recorded in the feeding book as 60 mL: see P4; P8, 7.

    [205] T 100.9.

    [206] T 99.33.

39. Denton initially said she did not notice any changes to Alvin’s feeding at the time and that there were no issues or concerns with Alvin taking his bottle.[207]  Later in her evidence, Denton said that Alvin’s feeding had slowed down.[208]  Denton said that Alvin ‘wasn’t drinking as fast as he normally would’.[209]  Denton said that the defendant suggested this might be because the cut on Alvin’s lip was hurting him when he took the bottle.[210]  Denton said because of this concern the defendant decided to go to the chemist to purchase children’s Panadol.[211]  Denton said the defendant was away from home for about 15 minutes getting the Panadol.[212]

    [207] T 98.

    [208] T 105.27.

    [209] T 105.

    [210] T 105.

    [211] T 105.

    [212] T 175.

40. It is an agreed fact that the defendant attended the Terry White chemist on Beach Road, Christies Beach, where at 3:50 pm he paid for Panadol branded paracetamol for children (1 month to 1 year).[213]  As is apparent from this agreed fact, this purchase occurred before the 4:30 pm feed recorded in the feeding book, and so before the time Denton said she and the defendant noticed Alvin’s feeding had slowed.

    [213] P19 [22].

41. Denton also gave evidence that the defendant returned from the chemist around 4:30 pm and gave Alvin a dose of the Panadol.[214]  It was suggested to Denton that because the defendant was at the chemist at 3:50 pm, it could not have been the 4:30 pm feed that led the defendant to go to the chemist.[215]  Denton agreed with the suggestion that it could not have been the 4:30 pm feed,[216] however,  maintained that it was Alvin’s trouble with feeding that was the reason behind the defendant going to the chemist to purchase Panadol.[217]

    [214] T 106. Under cross-examination, after having refreshed her memory from her police affidavit of 20 February 2023, Denton accepted that she had administered the first dose of Panadol to Alvin (0.4 mL) when the defendant returned from the chemist: T 239.

    [215] T 175.

    [216] T 175.34-175.36.

    [217] T 176.1-176.4.

    Frozen dinner provided by the defendant’s mother

42. At 6:57 pm, Denton sent a message to the defendant’s mother, Heather McGregor, via Facebook Messenger:[218]

    Hey mum, thank you so much for the frozen dinner, it was absolutely delicious! Love you.

    [218] P24 [26].

43. Denton agreed that she did call Heather McGregor ‘mum’.[219]

    [219] T 581.

44. It was suggested to Denton that the defendant went to his mother’s home before Denton sent the 6:57 pm message in order to pick up dinner, which they ate that night.[220]

    [220] T 233-234.

45. Denton said she did not remember the defendant leaving the house again after he returned from the chemist.[221]  Denton said that she did not remember the text message.[222]

    [221] T 233.

    [222] T 234, 581.

    Bathing Alvin at 8:55 pm

46. Around 8:20 pm another feed is recorded in the feeding book.  This feed is recorded as ending at 8:40 pm.[223]

    [223] P4, 7. This feed was for 60 mL.

47. After this feed, Denton and the defendant gave Alvin a bath.[224]  Denton said they did not have a bathing routine for Alvin as he was still so young and just bathed Alvin whenever they thought he needed it.[225]  Denton said that the defendant would mostly do the bathing.[226]

    [224] P10, photographs 26-29; T 139.

    [225] T 102.22-103.

    [226] T 203.

48. At 8:55 pm, Denton took a series of photographs of Alvin in the baby bath in the bathroom.[227]  Denton said that Alvin was not awake for the bathing process.[228]

    [227] P10, photographs 26-29.

    [228] T 139.24.

49. Denton said that in earlier baths Alvin was ‘generally awake’,[229] meaning that each bath was different.  However, Denton said that there had never been an occasion, before Wednesday night, that she could remember Alvin ever sleeping through the entire bath process.[230] Denton said that during Alvin’s bath on Wednesday night he slept through the entire bathing process.[231]

    [229] T 139.35.

    [230] T 140.

    [231] T 139.36-139.38, 140.11-140.14.

50. In the series of photographs taken of Alvin in the bath on Wednesday night, Alvin’s eyes are closed, his head is wrapped in a white towel and propped on a purple towel and his body is covered in a blue towel.[232]

    [232] P10, photographs 26-29.

51. When Denton was asked why Alvin had a towel over his body, Denton said it was ‘to keep him warm’,[233] but also said that the bath water was warm.[234]  When Denton was asked why Alvin had a towel over his head, she said, ‘That was [the defendant] that did that. I’m not sure why’.[235]

    [233] T 140.22.

    [234] T 140.23.

    [235] T 140.26.

52. These series of photographs can be compared with a photograph of Alvin in the bath taken at an earlier date. That photograph is featured in the photo board shown in photograph 3 of P16, with the photograph reproduced separately in P24.  In this earlier photograph, Alvin is pictured naked in the bath with his arms and legs up.[236]  He is awake.[237]

    [236] P16, photograph 3; P24.

    [237] P16, photograph 3; P24.

53. Denton said she discussed the fact that Alvin had slept through the bath with the defendant.[238] Denton said the defendant told her that ‘maybe it reminded [Alvin] of being in Denton’s womb and it just made him relaxed and comfortable’.[239]  Despite Alvin’s appearance in the bath on Wednesday night, as revealed in the photographs, Denton said there was no discussion around the fact Alvin had fallen during the bassinet incident earlier that day or that he had been given Panadol.[240]

    [238] T140-142.

    [239] T 141.1.

    [240] T 141.

54. Denton said she did not notice any injuries or bruising to Alvin during the bath, and specifically did not notice any black eye or redness under Alvin’s left eye.[241]

    [241] T 141.

55. Denton said she did not notice any change in Alvin’s behaviour from the time she returned home on the Wednesday afternoon until she awoke on Thursday morning.  Alvin was not crying during the day or the night.[242]

    [242] T 100.22-100.26.

56. The only change Denton said that she noticed at this time was that Alvin’s feeding had slowed down.[243]  Denton said she thought that might have been a result of the cut lip that Alvin was not latching onto the bottle properly.[244]  Denton said that Alvin’s feeding remained slow for the rest of his feeds.[245]

    [243] T 120.

    [244] T 120.25.

    [245] T 120.36.

57. It was the defendant’s turn to sleep on the couch that night and attend to Alvin’s night feeds.[246]  

    [246] T 98.

58. Denton said she had no concerns about Alvin’s welfare when she went to sleep that night, nor had she noticed any change in Alvin.[247]

    Thursday 22 April 2021

    [247] T 98.35-99.3.

    Alvin’s morning feed

59. On Thursday 22 April 2021, when Denton entered the loungeroom after waking up, Alvin was asleep in the bassinet and the defendant was asleep on the couch.[248]  Denton fed Alvin between 8:00 am and 8:30 am.[249]  The defendant administered a dose of Panadol to Alvin with his feed while Denton was present.[250]

    [248] T 99.

    [249] T 99.13.

    [250] T 196.19-196.25, 119.

1. Two feeds were recorded in the feeding book before this 8:00 am feed. The first is recorded as a 120 mL feed and 0.5 mL dose of Panadol between 1:00 am and 1:30 am,[251] and the second is recorded as a 60 mL feed between 5:30 am and 6:00 am with a note stating that Panadol was administered at 8.00 am.[252]  These feeds were attended to by the defendant as it was his turn to sleep in the loungeroom with Alvin on Wednesday night.  

   [251] P4, page 8; This feed was for 120 mL between 1:00 am - 1:30 am with 0.5 mL of Panadol being administered.

   [252] P4, page 8; This feed was for 60 mL between 5:30 am - 6:00 am.

2. Denton said that she and the defendant were continuing to administer Panadol to Alvin at the recommended dose every four hours.[253]

   [253] T 120.

3. Denton said that she smoked some cannabis a couple of hours after she woke up.[254]

   [254] T 99.13.

   Defendant leaves home (for 2 - 3 hours)

4. Denton said that sometime between 9:00 am or 9:30 am, the defendant left home to go to his brother’s house to do some gardening.[255] Denton said he returned after two or three hours,[256] and that this was ‘roughly just after lunchtime’.[257]  During this time, Denton was alone with Alvin.[258]  Denton said nothing happened to Alvin in the time the defendant was away.[259] 

   [255] T 101-102.

   [256] T 102.9, 234.

   [257] T 103.

   [258] T 102.

   [259] T 102.25.

   Alvin’s behaviour and appearance during the morning

5. While the defendant was away from the home, Denton said she fed Alvin once.[260]  She said that when she fed Alvin, he seemed normal.[261]  Denton said that the only change she noticed in Alvin was ‘him slowing down on his feeding’.[262]  By this, Denton said that Alvin was not drinking as fast as he normally would.[263] 

   [260] T 103.

   [261] T 103.

   [262] T 120.

   [263] T 105.27-105.35.

6. Denton also said she noticed Alvin ‘seemed a bit extra clingy on the Thursday’.[264]  From mid-morning to afternoon, when Denton tried to put Alvin into his bassinet, Alvin would cry and would only stop crying once she picked him up and cuddled him in her arms.[265]  Denton said she had Alvin in her arms while sitting on the couch around mid-morning.[266]

   [264] T 101.

   [265] T 102.

   [266] T 101.24.

7. Denton said she would have changed Alvin’s nappy a number of times throughout the day.[267] When changing Alvin’s nappy, Denton would strip him completely naked.[268]  Denton said she did not observe any injuries to Alvin’s body during nappy changes,[269] and, specifically, did not observe any bruising on Alvin.[270]

   [267] T 103.2-103.4.

   [268] T 102-103.

   [269] T 103.

   [270] T 103.13-104.

   Syringe feed

8. Denton said that after the defendant returned home, she tried to feed Alvin with the bottle, but Alvin was not latching on to it.[271]

   [271] T 103.33-104.

9. Denton said the defendant told her that he would use a syringe to feed Alvin.[272]  Denton said that the defendant then fed Alvin 90 mL through a 5 mL syringe that was in the box of Panadol.[273]  Denton said it took the defendant around 20 minutes to feed Alvin through the syringe.[274]

   [272] T 103.33-103.38.

   [273] T 103, 104.1-104.11.

   [274] T 104.

10. Denton said this was the only time Alvin was fed using a syringe.[275]

    [275] T 103, 107-108.

11. This feed is recorded in the feeding book as a 90 mL feed taking 20 minutes between 1:00 pm and 1:20 pm.[276] The feed was recorded in the feeding book but not the fact that it was through a syringe.[277] 

    [276] P4, 8.

    [277] T 104.28-104.34.

12. After the feed, Denton said that the syringe was washed and put back into the Panadol box.[278]

    [278] T 104.

13. Despite Alvin having to be fed through a syringe, Denton said there was no discussion with the defendant about Alvin needing medical attention.[279]

    [279] T 107.34-108.3.

    Cannabis ‘withdrawal’ discussion

14. Denton said that around 10 or 15 minutes after Alvin was fed using the syringe,[280] the defendant suggested that Alvin’s feeding issues could have been due to Alvin experiencing ‘withdrawals’ from the cannabis she had been smoking while pregnant.[281]

    [280] T 127. Under cross-examination Denton agreed that in a police interview she said this occurred half an hour after the defendant’s parents left the home: T 194.

    [281] T 127.

15. Denton said the defendant suggested she blow cannabis smoke in Alvin’s face when she next smoked a cannabis bong. [282]  Denton said she did this.  She said she was in the laundry when she blew cannabis smoke in Alvin’s face while smoking through a bong.[283]  Denton said the defendant was holding Alvin at the time.[284]

    [282] T 127.6, 192-194.

    [283] T 192.

    [284] T 192.

16. Denton claimed she did not have an understanding of what a ‘withdrawal’ was but blew the smoke in Alvin’s face at the defendant’s instigation.[285]

    [285] T 192.

17. Denton said that even during this discussion about Alvin’s feeding issues there was nothing said about them needing to take Alvin to see a doctor or to the hospital.[286]

    [286] T 127.33-128.1.

18. Denton denied a suggestion that was put to her in cross-examination that there was an occasion when the defendant had entered the kitchen while holding Alvin and that she was smoking cannabis through a bong and blew cannabis smoke in their direction, for which she was rebuked by the defendant.[287]

    [287] T 198-199.

19. Denton’s evidence that the defendant requested that she blow cannabis smoke in Alvin’s face is evidence that the defendant engaged in discreditable conduct.[288]  The evidence was not objected to by the defence.  The permissible use of the evidence is to infer that the defendant, being aware of Denton’s use of cannabis during pregnancy, had considered that this might be an explanation for Alvin’s feeding issues (because Alvin might be experiencing ‘withdrawals’) following the bassinet incident, which is relevant in relation to the charge of criminal neglect.  I am satisfied that evidence can be used for this purpose.[289]  This is the only permissible use of the evidence.  It cannot be used to suggest that the defendant is the sort of person who would be likely to have committed the either of the offences charged.[290]    

    [288] Evidence Act s 34P(1).

    [289] Evidence Act s 34P(2)(a).

    [290] Evidence Act s 34R(1).

    Alvin’s last feed on Thursday

20. Denton said she gave Alvin a 90 mL feed, taking 20 minutes, between 4:10 pm and 4:30 pm on Thursday.[291]

    [291] T 122; P4, 8.

21. Denton said Alvin did not feed again after this.[292]  This is consistent with this feed being the last feed entered into the feeding book.[293]

    [292] T 122.28.

    [293] P4, 8.

    Heather and David McGregor’s visit

22. Denton said that in the afternoon, the defendant’s parents, Heather and David McGregor, visited the home to see Alvin.[294]  Denton said they held and cuddled Alvin.[295]

    [294] T 128, 129.26.

    [295] T 129.9.

23. Denton said Alvin was asleep during the visit.[296]

    [296] T 129.24, 130.18.

24. Denton said the defendant’s father had noticed that Alvin could not open one of his eyes and commented about this to her.[297]  Denton said she thought Alvin had conjunctivitis because he ‘had a little bit of gunk in his eye’.[298] 

    [297] T 129.12.

    [298] T 129.21, 208-209.

    Picking up Blake

25. After the defendant’s parents arrived, Denton said she left the home to pick Blake up from her mother’s house, where he had been for the previous two nights.[299]  On the drive home, Denton said she told Blake about the bassinet incident and warned him that Alvin may develop a black eye.[300]

    [299] T 128.22.

    [300] T 132.25.

26. Denton said the defendant’s parents left about 15 to 20 minutes after she and Blake returned home.[301]  Denton thought the defendant’s parents had been visiting for around one hour.[302]

    [301] T 132.

    [302] T 129.26.

27. Denton said that when Blake returned home, he gave Alvin a kiss and had a cuddle with him on the couch.[303]  Denton said that Alvin was not awake when Blake was cuddling him on the couch.[304]  Denton said that Blake did not comment on Alvin’s appearance.[305]

    [303] T 132.15.

    [304] T 134.

    [305] T 134.

    Attempt at feeding Alvin at 8:30 pm

28. Denton said that around 8:30 pm, she attempted to feed Alvin but ‘he didn’t seem hungry’.[306]

    [306] T 123.2, 158.32.

29. Denton said that she was sitting on the couch when she tried to feed Alvin by putting the bottle in his mouth.[307]  She said Alvin would not take the bottle and she assumed that this was because Alvin was full and not hungry.[308]  Denton said she thought Alvin would wake up when he next felt hungry.[309] Alvin was put back in his bassinet.

    [307] T 123.

    [308] T 123.12.

    [309] T 123, 209.

30. Despite Alvin not feeding at this time, or waking up hungry, Denton said she still did not have any concerns over Alvin’s wellbeing.[310]

    [310] T 123.19.

31. It was Denton’s turn to sleep with Alvin in the loungeroom on Thursday night. 

32. Denton said she fell asleep on the couch between 9:30 pm and 10:00 pm.[311]  Denton said she smoked a bong of cannabis just before she went to bed.[312]

    [311] T 184.

    [312] T 210.

33. Denton slept on the larger of the two couches in the loungeroom and her head was positioned on the side of the couch opposite the smaller two-seater couch.[313]

    [313] T 247.27; P3, photograph 23.

34. Blake was also sleeping in the loungeroom that night and was lying on the two-seater couch.

35. Denton said she had forgotten to set the alarm on her phone to wake her up for Alvin’s scheduled feed at 12:00 am.[314]  Denton said she had never forgotten to set the alarm before,[315] nor had she ever slept through an alarm.[316]

    [314] T 123.35, 183.

    [315] T 184.

    [316] T 183.

    Friday 23 April 2021

36. Denton said she awoke at 4:30 am on Friday 23 April 2021 and checked on Alvin but did not give him a feed at this time.[317] 

    [317] T 124, 211.

37. Denton said that Alvin was sleeping.  Denton said she could hear Alvin had a ‘bit of chesty breathing’, which she described as though Alvin had phlegm on his chest.[318]  Denton said that this was the first time she noticed a change in Alvin’s breathing, but that this did not cause her to have any concerns over his welfare.[319]

    [318] T 124.25.

    [319] T 124.26-124.31.

38. Denton said that as she felt hot in the loungeroom, she thought Alvin might have been as well and removed the top blanket covering him before going back to sleep on the couch.[320]

    [320] T 124.18, 212-214.

39. Denton said she next awoke at 6:30 am.[321]

    [321] T 124.

40. Denton went to Alvin to feed him. Denton said she noticed Alvin had a ‘clear booger’ from his nose down to his chest. After she prepared his bottle and attempted to feed Alvin, the bottle ‘just sat in his mouth’.[322]  Denton said that when she picked Alvin up from the bassinet, he was cold.[323]

    [322] T 125.

    [323] T 125.

41. Denton said that when she removed Alvin’s nappy and wiped him, he did not startle or wake up (as he normally would).  Despite this, Denton said that she did not check on Alvin’s breathing[324] nor did she think that Alvin had stopped beathing.[325]

    [324] T 125.

    [325] T 216.

42. Denton said she did not realise that Alvin was unresponsive until the bottle sat in his mouth.[326] 

    [326] T 214-215.

43. Denton said she then raced to the bedroom and woke the defendant, telling him that Alvin was not waking up.[327] 

    [327] T 124.37-125.7, 214-215.

44. Denton said she did not know what was going on or what was wrong with Alvin.  She said that she was scared.[328] 

    [328] T 125.22-125.28.

45. Denton said that when she entered the bedroom with Alvin, the defendant took him from her and placed Alvin on the bed and attempted CPR.[329]  When there was no response to CPR, the defendant told her to get the baby capsule and that they were going to the hospital.[330]

    [329] The CPR was performed by the defendant placing two fingers across the top of each other and tapping Alvin’s chest: T 125.

    [330] T 125.

46. Together they rushed to the Noarlunga Hospital with Alvin in the baby capsule.  They arrived at the hospital just after 7:00 am.  Denton took Alvin into the hospital.  Denton said she was in a state of shock.   Denton stood at the triage and felt numb.  When the defendant entered the hospital he shouted, ‘My baby’s not breathing’.[331]  Several hospital staff came rushing out to attend to Alvin.[332]

    [331] T 126, 298.

    [332] T 126.5.

47. Nurse Taylor was the first to respond and rushed Alvin into the resuscitation room. When she stripped Alvin to place defibrillation pads on the front and back of his body, she noticed a bruise along Alvin’s spine.[333]  Taylor performed CPR[334] but Alvin had already passed.[335]  Taylor gave evidence that she believed Alvin had passed a few hours earlier because the failed attempts to gain intravenous access were suggestive of there being no blood flow in Alvin’s body.[336]

    [333] T 300.

    [334] Using two fingers over the lower sternum: T 298-299.

    [335] T 301.

    [336] T 301.

48. Dr Coombe observed that Alvin was very pale, and his body temperature was 30.2℃, indicating that Alvin had died some time ago. She also noted the bruising on Alvin’s back.[337]  

    [337] P17 [20]-[21].

49. At 7:35 am Alvin was pronounced deceased.[338]  

    [338] P17.

50. Denton said that she could not remember exactly what happened at the hospital.  She said, ‘It was a traumatic event, and [her] memory is blurred. [She] was in a state of shock and was numb’.[339]

    [339] T 240.

51. Denton and the defendant were advised by hospital staff that Alvin had passed away. 

52. Denton said she thought Alvin had died from SIDS.[340]

    [340] T 231.

53. Denton and the defendant were spoken to together by Brevet Sergeant Eaton in the resuscitation room at the hospital.[341]  

    [341] T 149.

54. Denton and the defendant were then taken to the Christies Beach Police Station and separately interviewed by the police.[342]

    [342] T 150.

55. Denton said she was never violent to Alvin, had never inflicted any injuries upon him and was never present when Alvin was injured or harmed in any way.[343]

    [343] T 148.15-148.21.

    Photographs of Alvin

56. A series of photographs of Alvin were presented in evidence.[344]

    [344] P10; P11; P16, photographs 3, 22; P24 [28].

57. The photographs taken of Alvin before the bassinet incident reveal a normal, healthy baby.[345]

    [345] P10, photographs 1-22; P11.

58. The photographs taken of Alvin after the bassinet incident reveal that he was either not awake or not fully alert.[346]

    [346] P10, photographs 23-40.         

59. In photographs 23-25 of P10 (taken at 8:13 pm on Wednesday 21 April 2021), Denton and the defendant are attempting to get Alvin to grab hold of their fingers. Denton said that these photographs were taken at the defendant’s suggestion because it would look cute.[347]  Denton said that Alvin was not quite grabbing on to their fingers.  She thought that was because Alvin was asleep at the time.[348]

    [347] T 138.24-138.33.

    [348] T 138.8-138.10.

60. In photographs 26-29 of P10 (taken at 8:55 pm on Wednesday 21 April 2021), Alvin is in the baby bath, lying down in the water with his eyes closed.  A white towel is wrapped around his head and a blue towel is placed over his body.   A grey towel is positioned underneath Alvin’s head for apparent support.

61. In photographs 30-31 of P10 (taken at 10:45 am and 10:46 am on Thursday 22 April 2021) Alvin’s eyes are barely open.  Alvin does not appear alert, and a small bruise is apparent on his left cheek and there is a small mark under his left eye.

62. In photographs 32-40 of P10 (taken between 12:10 pm and 12:12 pm on Thursday 22 April 2021), Alvin is lying in Denton’s arms while she is seated on the couch.  Alvin is not awake, his legs are outstretched, and his mouth is gaping.[349]

    [349] Denton said that Alvin would normally sleep with a dummy: T 143. Alvin did not have one in his        mouth in these photographs.

63. The significance of Alvin’s appearance in these photographs will be discussed later in these reasons.

    Denton’s criminal neglect charge

64. Denton was charged with criminal neglect in relation to her care of Alvin. She pleaded guilty to the offence and was sentenced to imprisonment, which was ordered to be served under home detention.[350]

    [350] T 148-149.

65. Denton said it was her understanding that the charge was brought because she ‘ought to have known to seek medical attention for Alvin because of his age’.[351]

    [351] T 149.

66. Under cross-examination, the basis of Denton’s guilty plea to the charge was confirmed as being that she was aware of the bassinet incident; she was aware that Alvin had suffered injuries as a consequence of that incident; and that she failed to take any steps to seek medical attention for Alvin, knowing that Alvin had suffered the injuries in the bassinet incident.[352]

    [352] T 228.22-228.33, 223.

67. While Denton agreed to give evidence against the defendant, she did not do so on the understanding that she would receive a discount on her sentence if she did.[353]

    [353] T 148.32-148.28. 

    Postmortem examination

68. Dr Neil Langlois is a forensic pathologist at Forensic Science SA.[354]  Dr Langlois’ qualifications and expertise were not challenged.

    [354] T 346.

69. Dr Langlois said the majority of his postmortem examinations have been conducted on adults, as infant death is relatively rare.

70. Dr Langlois performed the postmortem examination on Alvin on 24 April 2021. After this examination, Dr Langlois was contacted by Dr Edwards and provided with copies of the postmortem CT scan that suggested there were additional rib fractures that had been missed in Dr Langlois’ initial examination.[355] A second postmortem examination was therefore performed on 26 May 2021.[356]

    [355] T 348-349.

    [356] T 348.

    Cause of death

71. The cause of death Dr Langlois gave in the postmortem examination report was ‘blunt cranio-cerebral trauma’,[357] which can otherwise be described as a ‘head injury’.[358]  

    [357] T 349.11.

    [358] T 349.19. Dr Langlois ruled out natural causes of death: T 349.25.

72. Dr Langlois said that the head injury caused brain swelling that eventually cut off the blood supply to the brain and caused death.[359]

    [359] T 405.

73. Dr Langlois explained that this brain swelling must have occurred from a physical insult to the brain that could have been caused by ‘shaking, impact or a combination of both’.[360] Dr Langlois stated ‘to have one event or one simple explanation for that is very hard to find, particularly in a child aged 21 days who should not be mobile. So, putting it all together, it suggests that something significant has happened to this child’.[361]

    [360] T 404.

    [361] T 362.37-363.3.

74. Dr Langlois agreed that an incident involving acceleration and deceleration of Alvin’s head and rotational or angular forces, chest encirclement and at least two occasions of blunt force trauma, within close proximity of each other, could account for all the injuries and findings he made in his postmortem report.[362] 

    [362] T 413.

    Aging the injuries

75. Throughout his evidence, Dr Langlois was asked for his opinion on aging the injuries he observed in the postmortem examinations and to provide a timeframe within which these injuries could have occurred.

76. Dr Langlois explained the difficulty in aging injuries.  He stated:[363]

    [A]ging of injuries is not a precise science.  We have a lack of data.  Each individual injury might behave differently to another one, and each person may behave differently to another person.  But by sampling multiple injuries, it becomes less likely that what I'm looking at is not right.

    [363] T 378.

77. Dr Langlois explained that one of the methods he uses to age injuries is by looking for indications of the body’s healing processes.[364]

    [364] T 366-367.

78. When the body is injured, a number of signals are given off by the injured area.[365]

    [365] T 366.

79. Firstly, acute inflammatory cells called ‘neutrophils’ are called into the area.[366]  Dr Langlois described these cells as ‘foot soldiers who are coming in to get rid of an infection’.[367]

    [366] T 366.

    [367] T 366.29.

80. Once the infection is cleared, or some time has elapsed, cells called ‘macrophages’ are called to the area.[368]  Dr Langlois described these cells as ‘garbage cleaners’[369] as they come in to remove the tissue that has been damaged and to make way for the healing process.[370]

    [368] T 366.

    [369] T 366.34.

    [370] T 366.

81. Dr Langlois explained that, generally, a macrophage reaction places an injury within a one-to-two-day timeframe.[371]

    [371] T 368.

1. I am satisfied beyond a reasonable doubt of each of the elements of the offence of manslaughter:

   i.The defendant’s act of shaking or throwing Alvin was the cause of Alvin’s brain injuries that resulted in Alvin’s death;

   ii.The defendant’s act was both voluntary and deliberate;

   iii.The defendant’s act was unlawful; and

   iv.The defendant’s unlawful act was dangerous in that it exposed Alvin to an appreciable risk of serious injury.  Any reasonable person in the defendant’s position would have realised that shaking a 19-day-old baby would expose the baby to an appreciable risk of serious injury.

2. I find the defendant guilty of the manslaughter of Alvin.

   Count 2 – Criminal neglect

3. I propose to deal with this charge by addressing each of the elements of the offence in turn.

   1.Alvin suffered harm as a result of an act

4. Harm is very broadly defined in relation to this offence. It includes the same definition of harm contained in Division 7A of the Criminal Law Consolidation Act, which includes physical harm (whether temporary or permanent), including unconsciousness and pain.[968]  It also includes, and relevantly to this case, detriment caused to the physical, mental or emotional wellbeing or development of a child.[969]

   [968] Criminal Law Consolidation Act 1935 (SA) s 21.

   [969] Criminal Law Consolidation Act s 13B(3).

5. The harm particularised by the prosecution is not the physical harm caused through the act of squeezing and shaking of Alvin that resulted in the serious injuries Dr Langlois gave evidence about.  Rather, the harm involves Alvin’s continued suffering and deterioration from a failure to obtain timely medical care for Alvin.

6. The evidence clearly establishes that Alvin sustained the significant injuries, noted by Dr Langlois at the postmortem examination, and that due to these significant injuries Alvin’s condition deteriorated across Wednesday and Thursday, culminating in his death on Friday morning.

7. Dr Edwards explained how Alvin’s condition would have progressed and deteriorated over time.  This evidence was not challenged.

8. As Dr Edwards said, the symptoms of a serious head injury would typically result in an initial concussion (loss of consciousness) for a variable time, followed by some recovery before the secondary processes applying to the brain lead to a deterioration over time – this deterioration could last from hours to days.  While there might be a return to a degree of consciousness, generally, there would not be a recovery back to a normal state. The initial concussion may vary from a few seconds to a few minutes.  The slow deterioration may then last from a few hours to days.  The traditional understanding of brain swelling is that it usually maximises between 24 - 48 hours.

9. As Dr Edwards later explained:

   [W]hat we know from our own experience of talking to lots of caregivers regarding this and from the literature is that, as I said previously, we expect there to have been a concussion episode where the baby went very quiet and looked like they were asleep pretty soon, if not immediately after the incident, followed by either a continual deterioration where an ambulance is called, or some apparent recovery where the child becomes less obtunded and may well feed and appear to not be too badly hurt.  However, over - if there has been a primary injury to the brain and then the secondary processes which lead to poor oxygen supply and ongoing damage to the brain, we expect symptoms in a young baby to be sort of lack of alertness but also lack of arousal, so when a baby would normally be aroused, like being undressed, or in a bath, or having a nappy changed, when the baby would normally wake up and cry, that they don’t do that as per usual, they don’t wake up for their feeds as often as they, if they were always waking up every two or three hours, they don’t do that.  They may still be able to suck their feeds, but it would be a less effective suck, the feed would take longer, they would take less milk and they might fall asleep during the feed and the parent might have to sort of arouse them.  Then, often a baby will start vomiting, or having seizures, or have periods where their breathing is abnormal that is described to us over, as I said, a period of time.  That can really vary from a few hours to, you know, two or three days.[970]

   [970] T 521-522.

10. I accept Dr Edwards’ evidence.  The evidence of Alvin’s deterioration across Wednesday, Thursday and into Friday has not been challenged.

11. It has not been disputed that Alvin suffered physical harm, such as pain and unconsciousness, through his continued deterioration.  I am satisfied that this continued deterioration was the result of a failure to obtain timely medical care for Alvin.  This element of the offence has been proved beyond a reasonable doubt.

    2.The defendant had a duty of care to Alvin to protect Alvin from harm

12. As the defendant was Alvin’s father and was responsible for him at the time, this element of the offence has been proved beyond a reasonable doubt.

    Discreditable conduct evidence used to prove remaining elements

13. In relation to proving the remaining elements of the offence, the prosecution has relied upon my finding that the defendant inflicted the serious injuries on Alvin through the unlawful and dangerous act of squeezing and shaking Alvin immediately following the bassinet incident.

14. This is evidence of discreditable conduct on the part of the defendant.  I am satisfied that the evidence the defendant inflicted the serious injuries on Alvin is of probative value in establishing each of the remaining elements of the offence and that this use outweighs any prejudicial effect it has on the defendant.[971]  The evidence is admissible in the consideration of this charge.[972]  The defence did not object to its use for this purpose. 

    [971] Evidence Act s 34P(1)(a).

    [972] Evidence Act s 34P. The evidence relevant to proof of the criminal neglect charge, however, is not admissible in proof of the manslaughter charge. That evidence has not been used in the determination of the manslaughter charge.

15. The permissible use of this evidence will be addressed during a consideration of the remaining elements of the offence. Simply put, it directly proves the defendant’s awareness that there was an appreciable risk that harm, in the nature of Alvin’s deteriorating condition, would be caused by failing to obtain medical attention for Alvin; his failure to take steps he could reasonably be expected to have taken in the circumstances to protect Alvin from harm; and whether that failure is so serious in the circumstances to warrant a criminal penalty.[973]

    [973] Evidence Act s 34R(1).

16. The evidence is not used to reason simplistically that because the defendant inflicted the serious injuries on Alvin that he is the sort of person who is more likely to have committed the offence of criminal neglect.[974]  As the evidence that the defendant inflicted the serious injuries on Alvin is essential to prove the remaining elements, it must be established beyond a reasonable doubt,[975] which it has been through finding the defendant guilty of manslaughter.    

    3.The defendant was, or ought to have been, aware that there was an appreciable risk that harm would be caused to Alvin through a failure to obtain medical assistance for Alvin

    [974] Evidence Act s 34R(1).

    [975] Evidence Act s 34R(2).

17. This element does not require proving that the defendant was aware of what was causing Alvin’s deteriorating condition.  What is required is proof that the defendant was aware, or ought to have been aware, that Alvin’s condition was deteriorating, and that awareness carried with it an appreciable risk that Alvin’s condition would continue to deteriorate unless medical assistance was obtained for Alvin.

18. An ‘appreciable risk of harm’ means a risk that is real and not theoretical; more than a remote or mere possibility that the act might cause harm.[976] 

    [976] See discussion by Redlich JA of this expression in R v Abdul-Rasool (2008) 18 VR 586.

19. The prosecution relies on alternative pathways to prove this element of the offence.

20. The first is that the defendant was aware that there was an appreciable risk that harm would be caused to Alvin through the omission in failing to obtain medical assistance for Alvin.  This is because the defendant was responsible for inflicting the serious injures by shaking Alvin and that this act was the cause or source of Alvin’s deteriorating condition across Wednesday and Thursday leading to Alvin’s death on Friday morning. 

21. As I have found proved beyond a reasonable doubt that the defendant was responsible for inflicting the serious injuries on Alvin, by squeezing and shaking him, this element has been proved beyond a reasonable doubt.  The defence accepted this element would be proved if I made this finding.

22. In light of this finding, while it is strictly unnecessary to consider the prosecution’s alternative basis of proving this element of the offence, I consider it appropriate to do so.

23. The prosecution contended that even if a finding was not made that the defendant had inflicted the serious injuries on Alvin, the defendant was nevertheless aware, or at least ought to have been aware, from observing Alvin’s condition following the bassinet incident, that Alvin was unwell and that his condition was worsening or deteriorating from that moment forward.

24. The prosecution relied on Dr Edwards’ evidence about how Alvin’s deteriorating condition would manifest, the objective evidence of Alvin’s level of consciousness that can be ascertained from the photographs, and Denton’s evidence as to Alvin’s reduced ability to feed and his level of consciousness.  Aligned with this, the prosecution submitted that at the very least the defendant was aware that Alvin had suffered some physical injury to his face during the bassinet incident.

25. The defence conceded that on this evidence, the defendant ought to have been aware that there was an appreciable risk that harm would be caused to Alvin through his omission in failing to obtain medical assistance for Alvin and that this element of the offence would be proved.

26. While that concession was made by the defence, I am, nevertheless, satisfied on the evidence, that the defendant not only ought to have known that there was an appreciable risk that harm would be caused to Alvin, through his omission in failing to obtain timely medical care, but that he was aware of that risk.

27. I do not accept the defendant’s continued assertions through his various police interviews that he was not aware that Alvin was unwell following the bassinet incident.  As with Denton’s evidence about this, I did not find what the defendant said to be credible.

28. The defendant stated:

    ·That after the bassinet incident Alvin whinged for a little bit and then he was fine after that.  It was just that night he was a little bit whingey, and he had been fine all day.[977]

    ·The next day (Thursday) Alvin seemed fine.[978]

    ·Alvin just seemed normal.[979]

    ·Alvin seemed perfectly normal, taking his bottle, going back to sleep, fine.[980]

    ·Between Wednesday and Friday Alvin was a perfect, amazing baby.[981]

    ·Alvin took everything fine.  It was like it (the bassinet incident) never happened, like he was himself.[982]

    ·When they bathed Alvin on Wednesday night, they didn’t notice anything.[983]

    ·Nothing else stood out.[984]

    ·They spent the rest of Wednesday cuddling Alvin, just normal day things, cuddling him and having some play time.  He slept fine, everything normal.  Alvin’s been back to normal, like we didn’t notice anything, no signs or anything.[985]

    [977] P12; MFI-P12A [250].

    [978] P12; MFI-P12A [857].

    [979] P12; MFI-P12A [836].

    [980] P12; MFI-P12A [842].

    [981] P12; MFI-P12A [789]-[794].

    [982] P14; MFI-P14A [1894].

    [983] P14; MFI-P14A [2278]-[2285].

    [984] P14; MFI-P14A [1480].

    [985] P14; MFI-P14A [1748]-[1754].

29. The defendant’s assertions are not supported by the objective evidence and are directly contradicted by the photographs that reveal Alvin’s concerning appearance, clearly suggesting that something was not right.  The defendant’s various descriptions of Alvin’s condition are simply not credible.

30. The defendant was aware that Alvin sustained injuries in the bassinet incident.  He was aware that a black eye had developed about an hour after the incident.  The defendant said that he decided to purchase Panadol later that afternoon because he thought Alvin was probably in pain following the bassinet incident, with the first dose of Panadol administered to Alvin after Alvin had his 4:30 pm feed on Wednesday.  The defendant said that throughout Thursday he administered more Panadol to Alvin.  This suggests the defendant was aware that Alvin may be experiencing a level of pain or discomfort.

31. Denton said that when she tried to feed Alvin with the bottle, Alvin was not latching on.  Denton said that the defendant suggested he would use a syringe to feed Alvin.  Denton said that the defendant then fed Alvin through a 5 mL syringe that she believed was from the box of Panadol. 

32. I am prepared to accept Denton’s evidence about this.  The evidence revealed difficulties with Alvin feeding following the bassinet incident and so it would not be surprising that a suggestion would be made to feed Alvin through a syringe.  I am satisfied that this occurred as Denton said.  The fact the defendant used a syringe to feed Alvin reveals that he knew that there was an issue with Alvin’s feeding.     

33. Denton said that around 10 or 15 minutes after the syringe feed, the defendant suggested to Denton that Alvin’s feeding issues could have been due to withdrawals from the cannabis she had consumed while pregnant.  The defendant suggested Denton blow cannabis smoke in Alvin’s face when she next had a bong. Denton said she was in the laundry when she blew cannabis smoke in Alvin’s face while the defendant was holding Alvin.  Denton denied a suggestion that was put to her in cross-examination that there was an occasion when the defendant had come into the kitchen holding Alvin and she blew cannabis smoke in their direction for which she was rebuked by the defendant.

34. As stated earlier in these reasons, the evidence that the defendant requested Denton to blow cannabis smoke in Alvin’s face is clearly evidence that the defendant engaged in discreditable conduct.[986]  This evidence cannot be used to suggest that the defendant is the sort of person who would more likely have committed the offences because he engaged in the conduct and is inadmissible for that purpose.[987]

    [986] Evidence Act s 34P(1).

    [987] Evidence Act ss 34P(1)(a), (b).

35. The prosecution has relied on this evidence for a permissible use being evidence from which it can be inferred that the defendant was aware that Alvin’s feeding was affected, and that, from this the defendant was aware, or ought to have been aware, that there was an appreciable risk that harm would be caused to Alvin through a failure to obtain medical assistance for Alvin following the bassinet incident.  There was no objection to the use of the evidence for this purpose.  I am satisfied that the probative value of this evidence, for the purpose identified by the prosecution, outweighs its prejudicial effect on the defendant.  The evidence was admitted for this purpose.[988]  I direct myself that this is the only permissible use of the evidence.[989]  This evidence cannot be used to reason that by requesting Denton to blow smoke into Alvin’s face that he is the sort of person who would be likely to commit the offence.[990] 

    [988] Evidence Act s 34P(2)(b).

    [989] Evidence Act s 34R(1).

    [990] Evidence Act s 34R(1).

36. I am prepared to accept Denton’s evidence that the defendant suggested Alvin’s feeding issues may be related to his withdrawals.  The evidence establishes that Denton was a heavy user of cannabis.  Denton was smoking between eight to 10 bongs of cannabis a day before falling pregnant.  Denton said that she reduced her consumption of cannabis but was still smoking daily during her pregnancy.  The defendant was aware of Denton’s heavy use of cannabis and that she had been smoking it throughout her pregnancy.

37. I do not consider that in these circumstances, Denton’s evidence that the defendant suggested she blow cannabis smoke in Alvin’s face, is so implausible that it should be rejected.  As I stated earlier in these reasons it is an unusual incident to have been invented by Denton as it reflects poorly on her as a mother.

38. The defendant’s request to Denton, that she blow cannabis smoke in Alvin’s face because his feeding issues may be related to cannabis withdrawals from pregnancy, reveals that the defendant was aware that Alvin was experiencing feeding difficulties.

39. I accept Dr Edwards’ evidence that the behavioural repertoire of a newborn baby is limited.  However, anyone who observed Alvin, in his position and state in the bath on Wednesday night,[991] could not fail to notice that there was something wrong with Alvin’s wellbeing. 

    [991] P10, photographs 26-28.

40. Alvin was stripped naked before he was put into the bath.  This should have woken him if he was asleep before the bath.  Bath time is an important part of a baby and their parents bonding.  It is an exciting and memorable time for parents to bath their newborn child.  Babies generally do not sleep through baths.  The fact that Alvin remained asleep during the bath on Wednesday night should have been a matter of great concern.  Alvin’s appearance in the bath in the photographs speaks to that.  This can be compared with Alvin’s appearance in the bath taken on an earlier occasion[992] and the contrast is stark.

    [992] See P24 [28].

41. It must also be remembered that, before the bath on Wednesday night, the defendant was aware that Alvin had sustained injuries to his face in the bassinet incident.  In those circumstances, a parent would naturally be very mindful of noticing any alteration to their baby’s condition or wellbeing.

42. Indeed, this is what the defendant asserted in his interview at the police station on 23 April 2021 when he said, ‘I always stress.  Like I’m a stress head when it comes to babies’.  Yet, he did not notice or consider that there was anything wrong with Alvin when Alvin was in the bathtub.  I do not find this credible.

43. I accept Denton’s evidence that she discussed the fact that Alvin had slept through the bath with the defendant. Denton said the defendant response was that ‘maybe it reminded [Alvin] of being in Denton’s womb and it just made him relaxed and comfortable’.[993]  Given that Alvin had been injured in the bassinet incident earlier that day, the defendant was at least aware that something different occurred with Alvin’s bath from previous baths because Alvin had slept through the entire bath this night.      

    [993] T 141.1.

44. The defendant also said that on Wednesday both he and Denton stayed up until 2:00 am ‘just to make sure Alvin was okay’.  It seems, despite this, he still did not notice any changes in Alvin’s overall condition, which I do not find credible.

45. The photographs taken by Denton on Thursday morning depict that Alvin barely had his eyes open.[994]  Alvin does not appear alert, and a small bruise is apparent on his left cheek.

    [994] P10, photographs 30-31.

46. The photographs of Alvin taken after midday depict Alvin in an even more concerning state.[995]  Dr Edwards commented about this.  In these photographs, Alvin is not awake, his legs are outstretched, and his mouth is gaping.  If the defendant was paying attention to Alvin, as he claimed he was, then he would have noticed what was obvious, namely, that Alvin’s level of consciousness was significantly altered. It cannot be said that Alvin was ‘normal and fine’, that ‘nothing stood out’ and that there were ‘no signs of anything’, as the defendant asserted in his police interviews.  Alvin’s presentation speaks against what the defendant stated.

    [995] P10, photographs 32-40.

1. Further to this, the evidence establishes that Alvin was either asleep or drowsy following the bassinet incident through to when the defendant went to sleep on Thursday night:

   ·The defendant said this to the police during his interview, on 7 May 2021, when he described Alvin as ‘drowsy, sleepy or quiet’.

   ·Denton said that when she returned home on Wednesday, after the bassinet incident, that Alvin was asleep.

   ·Bickley said Alvin was ‘awake, but drowsy, going back to sleep’.

   ·Alvin had to be woken at 4:30 pm on Wednesday for his feed.

   ·Alvin was asleep when the photographs were taken of Alvin at 8:13 pm on Wednesday and was not grabbing on to their fingers.

   ·Alvin was asleep during the bath at 8:55 pm on Wednesday.

   ·Alvin was asleep when Denton awoke on Thursday to feed him.

   ·Alvin was extra clingy on Thursday.

   ·The photographs of Alvin taken by Denton on Thursday between 10:45 am and 10:46 am show a close up of his face.  Alvin’s eyes are puffy and barely open.  There is a mark under his left eye and a bruise on his left cheek.  He is wrapped in a blanket.  Alvin does not appear to be well.

   ·The photographs of Alvin taken by Denton on Thursday between 12:10 pm and 12:12 pm show Alvin lying in Denton’s arms while she is seated on the couch.  Alvin is not awake, his legs are outstretched and his mouth is gaping.  Dr Edwards said that she also noted from these photographs that there appeared to be a loss of muscle tone in Alvin’s lower face – his mouth was ‘hanging open’ – his legs appeared floppy, and he appeared pale.  Dr Edwards said that even with the limitation of photographs, compared to a video recording, she would be concerned about Alvin’s appearance in this series of photographs.  This must also have been apparent to the defendant, if, as he arrested, he was a ‘stress head when it comes to babies’.

   ·Alvin was asleep when the defendant’s parents visited on Thursday.

   ·Alvin was not awake when Blake was interacting with him on Thursday.

   ·Alvin did not take his bottle at 8:30 pm on Thursday, so he was put back down to sleep.

2. I do not find the defendant’s assertions about Alvin’s appearance, or the state Alvin was in, to be credible.  Alvin’s condition was deteriorating significantly across Wednesday and Thursday, consistent with the progression of the brain injuries Dr Edwards explained.  I am satisfied beyond a reasonable doubt that the defendant was aware of Alvin’s continuing deterioration. The evidence about Alvin’s deteriorating state is clear and obvious.  Contrary to what the defendant has asserted, Alvin never returned to being ‘normal’ after the bassinet incident.

3. I do not accept the defence submission that the court should infer that the defendant was not aware (as opposed to having ought to have been aware) of Alvin’s deteriorating condition, because it was also Denton’s evidence that she was not aware of Alvin’s deterioration either.  It was submitted that Denton’s lack of awareness was reinforced by her having taken photographs of Alvin that reveal Alvin must be unwell and that it would be nonsensical to have taken those photographs.  Denton’s evidence that she did not notice any issues with Alvin’s wellbeing or deterioration is not credible either, in the light of the objective evidence and the opinions of Dr Edwards, that I have already outlined.  I have already found that I cannot accept Denton’s evidence about this.   

4. The defence also submitted that the defendant’s reaction when Alvin was brought into the bedroom on Friday morning, his attempts at CPR and rushing Alvin to the hospital is consistent with the defendant not having been aware of Alvin’s deterioration from the Wednesday.  I accept that when Alvin was brought into the bedroom, unresponsive, that the defendant reacted as any concerned parent would.  Obviously, by that stage Alvin was not breathing and was likely already deceased. I accept that it is a reasonable possibility that the defendant did not realise the extent of the head injuries Alvin had sustained or that they were even life threatening.  This is consistent with his reaction, but it does not follow that the defendant was not aware that Alvin’s condition was deteriorating.

   4.The defendant failed to take steps he could reasonably be expected to have taken in the circumstances to protect Alvin from harm

5. This element of the offence is objective.   The word ‘reasonably’ relates to what a reasonable person in the position of the defendant would be expected to do in all the circumstances.

6. Having found the defendant was responsible for inflicting the serious injuries on Alvin, by squeezing and shaking Alvin, this element has been proved beyond a reasonable doubt.  In the situation where the defendant was responsible for inflicting the serious injuries on Alvin, it would have been obvious to the defendant that Alvin’s deteriorating condition was the result of him shaking Alvin.  He did nothing to protect Alvin from the harm of Alvin’s deteriorating condition. He failed to seek timely medical care for Alvin.  The defence accepted this element would be proved if I made this finding.

7. Alternatively, the prosecution contended that if it was not proved that the defendant inflicted the serious injuries on Alvin, then the defendant was either aware, or ought to have been aware, of Alvin’s continuing deterioration and failed to take steps that he could reasonably be expected to have taken to protect Alvin from that harm. 

8. In this regard, the defendant could reasonably have been expected to have made contact with a medical professional, either by taking Alvin to a doctor, contacting a telehealth service, contacting CaFHS or taking Alvin to a hospital. 

9. When considering whether it was reasonable for the defendant to have taken any of these steps, the prosecution highlighted Alvin’s very young age as being an important consideration.  I accept this.  It cannot be overlooked that Alvin was only aged 19 - 20 days on the Wednesday and Thursday and was only discharged from hospital 14 days earlier.  Any parent faced with a situation that involved the deterioration of their baby, following an incident in which the baby was injured, would be naturally concerned about their baby’s welfare and seek medical assistance.  It can be accepted that immediately following the bassinet incident the decision to ‘wait and see’ or monitor Alvin’s condition and then purchase and administer Panadol was not unreasonable.  However, the situation had changed by 8:55 pm when Alvin was bathed. 

10. I am satisfied, that objectively assessed, the defendant failed to take steps that he could reasonably be expected to have taken in the circumstances to protect Alvin from harm.  The only step the defendant had taken was purchasing Panadol and administering it to Alvin, which, in the circumstances of Alvin’s condition as revealed by the evidence, was a totally inadequate step by the time Alvin was bathed at 8:55 pm on the Wednesday.

11. The defence conceded that the defendant failed to take steps that he could reasonably be expected to have taken in the circumstances.

12. I am satisfied that this element has been proved.

    5.The defendant’s failure to take such steps was, in the circumstances, so serious that a criminal penalty is warranted

13. I have found that the defendant inflicted the serious injuries on Alvin by shaking him.  Given the serious nature of Alvin’s continued deterioration, from the time the defendant inflicted the injuries on Alvin, there can be no doubt that a criminal penalty is warranted in the circumstances.  This was not challenged by the defence and this element has been proved.

14. There might be some cases where a failure to take steps to protect a child might be morally reprehensible, or the parenting involved is careless, but it is not of such a serious nature that it would warrant a criminal penalty.  This will be a matter of fact and degree in each case and involves an evaluative decision of whether, in the circumstances, the failure to take steps to protect a child from harm is so serious that a criminal penalty is warranted.

15. Dr Edwards said that early medical intervention may have prevented Alvin from dying.[996] 

    [996] T 538-539.

16. The defence contended that on the prosecution’s alternative pathway to proof of this charge, that in the circumstances as the defendant subjectively understood Alvin’s condition to be, his failure to take steps to prevent harm to Alvin does not warrant a criminal penalty.

17. The defence argument proceeded on the basis the defendant was not aware that Alvin had sustained a serious head injury, which can be accepted.  The submission was that, subjectively, the only incident the defendant was aware of where Alvin was injured was the bassinet incident.

18. The defence submitted that the defendant initially responded to this appropriately through the application of the ice pack and maintaining observations of Alvin thereafter.  The submission was that the purchasing of Panadol at 3:50 pm on Wednesday was an appropriate response to the circumstances that the defendant was aware existed at that point. The Panadol was purchased by the defendant because he believed that Alvin might be in pain following the injuries sustained in the bassinet incident.

19. It was also submitted that the bassinet incident masked, from the defendant’s viewpoint, there being any other event that contributed to Alvin’s deterioration and that in the circumstances, the defendant’s failure to take other steps that he could reasonably have been expected to take does not warrant a criminal penalty.

20. I do not accept this submission. 

21. The evidence is clear, in my view, that by 8:55 pm on Wednesday, when Alvin was bathed, the circumstances had dramatically changed.  The defence argument has force up until that point in time.  However, after that time, on any view of the evidence, Alvin never returned to his normal state, despite the defendant’s assertions in his police interviews, assertions that I have rejected.  I have already stated that I am satisfied beyond a reasonable doubt that the defendant was aware (and not just that he ought to have been aware) that there was an appreciable risk of harm to Alvin through the failure to seek medical attention for Alvin. 

22. The evidence objectively demonstrates that Alvin’s deteriorating state was visible and noticeable from at least 8:55 pm on the Wednesday.

23. Alvin’s condition in the bathtub signified an important turning point in Alvin’s deterioration.

24. During the bath on Wednesday night, Alvin was asleep, he did not stir after being undressed, submerged in water or having his head wrapped in a towel.  His legs and arms are not in the usual flexed position that is expected in babies of that age.  His eyes are closed.  The photographs clearly show that Alvin was unwell. This should be alarming for any parent. Alvin’s condition further deteriorated on Thursday as the photographs also clearly demonstrate.

25. In these circumstances, the defendant chose to administer Panadol to Alvin. He did not telephone a doctor’s surgery, a hospital or a telehealth service or CaFHS, nor did he take Alvin to see a doctor or to a hospital.  Alvin was totally reliant on his parents to protect and care for him and the defendant, in seeing Alvin in this deteriorating state, did not take any action apart from continuing to administer Panadol.  Simply continuing to administer Panadol is not what would be reasonably expected in these circumstances.

26. Moreover, and importantly, the circumstances include the fact that Alvin was only 19 days to 20 days old and was a small baby.  Alvin had been home for only two weeks.  He was totally dependent on his parents for his wellbeing and care. The defendant knew, at the very least, that Alvin had been injured in the bassinet incident and I am satisfied that he was aware that Alvin’s condition was deteriorating from that point on and failed to take steps to protect Alvin from harm by seeking medical attention for him.  As I have already stated, continuing to administer Panadol was not a reasonable response to Alvin’s progressively deteriorating condition in the circumstances, particularly when having regard to Alvin’s very young age. 

27. In my view, the defendant’s failure to take steps that he could reasonably have been expected to have taken to protect Alvin from harm, from at least the time Alvin was bathed on Wednesday night, is so serious that a criminal penalty is warranted.  I find this element of the offence proved.

28. I am satisfied beyond a reasonable doubt of each element of the offence of criminal neglect on either of the pathways relied upon by the prosecution.  

29. I find the defendant guilty of the criminal neglect of Alvin.

    Verdicts

30. 1.Guilty of the manslaughter of Alvin Tony McGregor.

31. 2.Guilty of the criminal neglect of Alvin Tony McGregor.

    Annexures included – not for publication:

    ·Annexure A:  P10, photographs 23-25

    ·Annexure B:  P10, photographs 26-29

    ·Annexure C:  P10, photographs 30-31

    ·Annexure D:  P10, photographs 32-40