R v MORGAN - [2021] SADC 129

District Court of South Australia
(Criminal)
R v MORGAN
[2021] SADC 129
Judgment of her Honour Judge Chapman
23 November 2021
criminal law - particular offences - offences against the person - acts intended to cause harm or causing danger to life or bodily harm or seri8ous injury - other offences involving grievous bodily harm or serious injury - generally
The accused is charged with aggravated recklessly causing serious harm to his 11 week old daughter. It is alleged she sustained intracranial injuries from being shaken. The prosecution called expert evidence regarding the mechanisms for such injuries. The accused denied the offence and said he accidentally fell on his daughter.
Verdict: Guilty.

R v MORGAN
[2021] SADC 129

Criminal

The accused is charged with aggravated recklessly causing serious harm.[1]
[1]Contrary to s23(3) of the Criminal Law Consolidation Act 1935.
It is alleged that on 23 August 2018 at Paralowie the accused caused serious harm to his 11 week old daughter, Aaliyah Joyce Wilson-Morgan (AWM), being reckless as to whether serious harm was caused.
The accused elected for trial by judge alone.
The prosecution case was that the accused shook AWM, causing subarachnoid and subdural haemorrhages overlying both sides of her brain which put her life in danger.
The defence case was that the accused fell on AWM. He denied shaking her.
The prosecution called AWM’s mother (Ms Adeline Wilson), three paramedics (Mr Burdett, Mr Turner and Mr Cook) and two doctors (Dr Edwards and Dr Nozza). The prosecution also tendered the 000 call made by the accused,[2] the interview between the police and the accused[3] and the video/screenshots of the accused’s re‑enactment of what he said occurred.[4]
[2]Exhibit P4. The transcript is MFI P5.
[3]Exhibit P4. The transcript is MFI P6.
[4]Exhibit P4. The transcript is MFI P7. The screenshots are Exhibit P8.
The accused elected not to give or call any evidence. That is his legal right. I do not draw any inference adverse to the accused because of his exercise of that legal right.
The accused does not have to prove that he fell on AWM. Having decided to speak to the police and engage in the re‑enactment, he took on no onus on proof. The prosecution must disprove his account. Even if the prosecution does so, the burden remains on the prosecution to present evidence which proves that the accused caused the injuries to AWM by shaking her.
Elements of the offence
The prosecution has the onus of proving each element of the offence beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or even probably guilty. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour.
The offence of recklessly causing harm has four elements which the prosecution must prove beyond reasonable doubt:
1.     The accused performed an act which was voluntary and deliberate.
2.The accused’s act caused serious harm to AWM.
‘Serious harm’ is defined to include harm that endangers a person’s life. ‘Harm’ is defined to mean physical or mental harm, whether temporary or permanent. Physical harm includes unconsciousness.[5]
A person’s act causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm.[6]
3.At the time of his act, the accused was reckless in causing serious harm. A person is reckless in causing serious harm to another if the person (a) is aware of a substantial risk that his conduct could result in serious harm; and (b) engaged in the conduct despite the risk and without adequate justification.[7]
4.     The accused acted unlawfully.
[5]Criminal Law Consolidation Act 1935, s 21.
[6]Criminal Law Consolidation Act 1935, s 21.
[7]    Criminal Law Consolidation Act 1935, s 21.
The circumstances of aggravation (that the accused knew AWM was under 12 at the time and that she was a child of whom he had custody as a parent) were not in dispute. AWM was born on 4 June 2018. The accused is her biological father and AWM was in his parental care on 23 August 2018.
There was no dispute that if the accused had shaken AWM so as to cause her undisputed injuries (as described by Dr Edwards), then the elements of the offence would be satisfied. The issue at trial was whether the prosecution had disproved that he fell on her and proved beyond reasonable doubt that he did in fact shake AWM.
Facts not in dispute
There was no dispute that:
(i)Ms Wilson left her house with her son at about 2.45pm.
(ii)At the time Ms Wilson left, AWM was well. She was in her pram in the lounge room.
(iii)From 2.45pm, the accused was alone at the house with the AWM. He had the sole care of his daughter.
(iv)The accused made a 000 call at 4.25pm. He was given instructions by the operator to assist AWM’s difficult breathing.
(v)The paramedics arrived at about 4.40pm. AWM’s condition was life threatening. She appeared motionless and was not responding to her environment. She looked cyanosed and was hypoxic. Her GCS was very low. She was given jaw support and oxygen ventilation support. She began to respond but then started posturing which indicated that something was going on neurologically. There was seizure activity. An IV line was put into her leg to administer midazolam.[8]
(vi)AWM was transported by ambulance to the Lyell McEwin hospital. The accused was in the front passenger seat. During the journey, AWM was very unwell. She was still seizing. Her airway was an issue. Her life remained in danger.[9]
(vii)At 5.04pm, AWM was in the resuscitation room at the Lyell McEwin hospital. A CT scan and blood samples were taken.
(viii)AWM was then transferred to the Women’s and Children’s hospital and admitted via the emergency department to the intensive care unit where she remained intubated and ventilated until the following evening. She was seen by an ophthalmologist and an MRI scan was conducted. She remained at the hospital until 31 August 2018.
(ix)AWM suffered bleeding in the meninges, which are the layers that surround the brain on both sides. She had subarachnoid and subdural haemorrhages overlying both sides of the brain. Her left retina showed abnormal retina edges.
On the CT scan there was no injury to her scalp, skull bones, neck, chest, abdomen or pelvis.
She had four visible areas of bruising or scratches on her body. There was one bruise on the right groin in the skin fold and two bruises on her left flank. She had a small scratch on her upper lip on the left side and a small bruise in the middle of her forehead. [10]
[8]Evidence of Mr Burdett, T52 – 70.
[9]Evidence of Mr Burdett, T52 – 70.
[10]Exhibits P11 and 12. T114.
Background evidence from AWM’s mother
Ms Wilson gave evidence that she has two children. Her son was born in May 2015 and AWM was born on 4 June 2018. She had been in a relationship with the accused for almost two years prior to August 2018. AWM is the accused’s daughter. She described her relationship with the accused as on and off. She was living with her two children in Paralowie. The accused stayed with them a few times each fortnight.
In August 2018, they all slept in the lounge room because the only heater was in that room. There was a double mattress and a single mattress on the floor. Ms Wilson and the accused slept on the double mattress. AWM slept on the mattress with them or in her pram. Ms Wilson’s son slept on the single mattress.
Ms Wilson gave evidence that AWM was a healthy baby, who was very happy and alert. There were no problems or complications at birth. After AWM was born, the accused would rarely assist with her care. She described herself as the primary care giver of both children.
She gave evidence that the accused did not seem to be able to read AWM’s cues. For example, he could not read the cues for when she was bloated and needed to be burped. Maybe once or twice he helped bathe AWM. He would occasionally change the nappies. AWM would often cry because she was hungry or wanted to be burped or needed a cuddle. The accused would try to comfort AWM from time to time but would often get a bit frustrated by not knowing what the baby wanted, so Ms Wilson would ask to take over.
There was one time when the accused took AWM around to see his family. He was gone no less than an hour. He brought her back because he was a bit worried about reading her cues.
Ms Wilson gave evidence that on 23 August 2018 she woke up at around 8.30am to check AWM. She attended to the children. At around 10.00am, the accused went across the road to call a taxi. They went to the shopping centre for about an hour or two and then returned home. When she got home, she was relaxing doing some gardening for an hour or two.
During the day, AWM was quite happy, very alert and settled. She was content in the pram just observing everyone. AWM had no injuries or bruises. She had some small scratches around her eyes from her nails.
Ms Wilson told the accused that she was going to take her son to her mother’s house to pick up a puppy that her mother had bought for them. She complained to the accused about basically having three kids now with the puppy.
AWM had her afternoon bottle before Ms Wilson left. Generally, after an afternoon feed, AWM might stay asleep for up to four hours. Ms Wilson told the accused the baby would be asleep for the afternoon nap. The accused did not have anything to do besides watch the baby. The accused told Ms Wilson to hurry up and get back because if the baby did wake up, he was concerned he would not be able to settle her back down. She remembered him using the words ‘well, how long are you going to fucking be because of this girl’.[11]
[11]T24.
She believed she left the house around 2.45pm with her son to walk to the bus stop. AWM was asleep in the pram in the lounge room facing the direction of the TV which was on. She caught the bus to her mother’s house who lived nearby in Parafield Gardens. She had numbers written down for her sister and her mother as emergency contacts.
The accused called that afternoon. He said ‘you need to come home or need to come to the hospital now. Something’s happened with [AWM].’[12] He did not say what had happened to her.
[12]T26.
Ms Wilson described herself as being in shock for about 10 minutes. She caught a bus to the hospital with her sister. When she arrived at the hospital, she was in the waiting room for about 30 minutes. When they let her past the sliding door, she saw the accused in a room with some police officers but was not allowed to speak to him.
Statements made by the accused about what happened
The defence case is that the accused fell on his daughter when she was lying on a mattress in the lounge room.
The prosecution led evidence that the accused gave varying accounts to different people about what happened.
000 call
The accused made a 000 call at 4.25pm.
The operator asked him to tell her exactly what happened. He said, ‘I don’t know, I was watch, like me and my daughter was just like sitting down and I, all of a sudden she’s just stopped breathing … just like she’s not alert’.[13]
[13]MFI P5, lines 41-43.
Later in the call he was again asked about whether anything had happened today. He said, ‘oh well I was cleaning up just before and I think like, I’m not for certain but I might’ve, a like I fell down and I put my hand down and I don’t know if I fell on her or the pillow’.[14]
[14]MFI P5, lines 219-221.
Mr Burdett (paramedic)
Mr Burdett gave evidence that when he was at the house, he asked the accused something like, ‘what’s happened?’ or ‘can you tell me what’s going on?’. The accused said, ‘I was holding the baby’ or ‘I was walking the baby’. Mr Burdett was not certain whether the accused said that he fell on the baby, but he did ask how did he fall on the baby and where. The accused said, ‘I’m not sure, I may have fallen on her head or I may have fallen on the pillow’. Mr Burdett said that is all he asked because there was a very sick child in the room and he just needed some very basic information.[15]
[15]T53.
In cross‑examination, Mr Burdett agreed he was very focussed on the child and what he was doing. He agreed that he does not remember the exact words, but the message conveyed was that the accused had fallen onto the child. He did not make notes.[16] The accused said he was holding the child and leaning over and fell on the child. He was not sure whether he landed on the child’s head or on the pillow that the child was lying on.[17]
[16]T75.
[17]T70.
Mr Cook (paramedic)
Mr Cook did not have any involvement in the clinical care of AWM at the house. He drew up and checked medications and gathered equipment. The accused was standing next to him whilst the other two paramedics were treating AWM.
Mr Cook asked the accused what had happened. The accused said he was carrying the baby in his arms and tripped on something and landed on top of the baby. The accused pointed out what it was that he tripped on, but Mr Cook could not recall exactly what it was. He said they landed on the floor of the lounge room.[18]
[18]T81-82.
In cross‑examination, Mr Cook agreed that he did not make a note of what was said. He agreed he did not make his police statement until over a year later. He said that part of the conversation was very vivid in his memory.[19]
[19]T86.
Mr Turner (paramedic)
Mr Turner drove the ambulance to the Lyell McEwin hospital. The accused was sitting in the front passenger seat. The accused said he was standing next to the baby who was on her side and he had somehow fallen on top of her. He thought he may have landed on the baby’s head, but he was not sure. He said there were some blankets up around the baby’s shoulders.
In cross‑examination, Mr Turner agreed he did not take notes of the conversation at that stage and it has been three years since. He was reasonably certain about the conversation regarding how the injuries occurred because it was important to hand that information over to the hospital staff.[20]
[20]T76.
Dr Nozza
On 23 August 2018, Dr Nozza was working at the Lyell McEwin hospital as a consultant paediatrician. She had a conversation with the accused in the presence of Dr Thomas in the resuscitation room. She wrote down what was said whilst Dr Thomas took the history.
The accused said AWM had been quite happy and well that morning. The child was crying for attention that morning on and off, which was normal. Her mother had gone to Parafield Gardens to drop off her son at her mother’s house. The mother had been away for approximately an hour when the event occurred. The child had been given a bottle of 120ml of milk and then her dummy before the mother left.
Prior to the ambulance being called, the baby was placed on a single bed mattress and was asleep. A car mat was half-way under the mattress. The accused was sweeping, tripped over the carpet and fell onto the baby, who was asleep.
The baby was lying there with her mouth open. He panicked and picked her up. She was limp, but still appeared a little pink. He laid her down and was scared. He called the ambulance and was told to give mouth to mouth. She started breathing but was still unconscious.[21]
[21]T158-159.
Dr Nozza was not cross‑examined.
Interview with the police
The police spoke to the accused on 23 August 2018 at 6.20pm at the Lyell McEwin hospital.[22]
[22]Exhibit P4 and MFI P6.
The accused told the police that ‘I picked my daughter up, I put her to sleep, laid her back down, ended up sweeping a little bit and then I came over to her, sweeping a little bit, moving a little bit things around and I’ve actually gone and I’ve fallen over onto her’.[23]
[23]MFI P6, line 31.
He later told the police that AWM was sleeping before her mother left but woke up crying. He then said, ‘I gave her the rest of her bottle and then I let her down, she was crying a little bit more, then I picked her back up, gave her another additional bottle that I made, gave her a little bit out of that – probably 5mls, then and she’s actually went to sleep and yeah that was all’.[24]
[24]MFI P6, line 137.
He said she was lying on her back, turned on her side maybe like the tiniest bit. Her head was on a pillow. She could not roll over or move around.
She went straight to sleep and then he was sweeping and then he fell. He tripped on a carpet like a car mat that was half under the bed and half coming out. He was standing up sweeping, bending over at the time, and his foot got caught between the carpet and his shoe and he has gone down. He fell on the bed.
After he fell, he did not think much of it. She seemed alright so he continued sweeping. He then came back and checked on her to make sure she was ok. He pulled the blankets back, looked at her, picked her up and her body was limp, so he rang the ambulance. It did not look like she was breathing.
Re‑enactment on 24 August 2018
The prosecution tendered a video of the conversation between the police and the accused at his house on 24 August 2018 during which time he demonstrated what happened. He placed a doll in the position of AWM. He said AWM was sort of on her ‘back side‑ish’.[25]
[25]MFI P7, line 122.
The accused said he took AWM out of the pram because she was crying, gave her the rest of her bottle and then tried to settle her. He then lay her down on the mattress on the floor. She kept crying so he picked her back up and gave her an additional bottle. He rocked her to sleep and lay her down on the mattress. She went back to sleep. He went to the kitchen and started cleaning up.
As part of his cleaning up, he was sweeping with a broom. He had slides on his feet, like slippers. He put one leg in front of the other and fell down with the broom in his left hand. He fell on top of AWM. He threw away the broom as he was falling. He thought his right elbow must have hit her head around the eyebrow area of her forehead. He then jumped back up. He looked at her and thought she was fine. She was still sleeping. He continued sweeping, put the broom back and did the rubbish.
He had a feeling that something was wrong. He went back and checked on her. She was non‑responsive. He called 000.
Ms Wilson
Ms Wilson gave evidence that at some stage she had a conversation with the accused. It could have been seven days after AWM was at the Women’s and Children’s hospital. She asked the accused how AWM ended up in the state that she did. The accused said he was sweeping and fell on her. In cross examination, she gave evidence the accused told her that he was sweeping and for some reason he took AWM out of the pram, put her on the bed and tripped over the car mat in the lounge room. She gave evidence that the mat slips a bit and slides on the lino.[26]
[26]T27-28, 44 – 45.
After that conversation, Ms Wilson said she had contact with the accused via Facebook Messenger.[27] She sent him a photo of AWM in hospital. She said, ‘you did this to my daughter’. He replied ‘why you got to keep rubbing it in I know what I done why can you just leave me alone. Ow’.
[27]Exhibit P3.
Expert evidence
The prosecution called Dr Jane Edwards, who is a paediatrician. She gained her medical qualifications in 1992 and her specialist qualifications in 2002. She was admitted in 2015 as a founding fellow to the Faculty of Clinical Forensic Medicine at the Royal College of Pathologists of Australia. She is a Consultant for Child Protection Services and the Medical Unit Head at the Women’s and Children’s Hospital. Her role is to assess children referred by police or the Department for Child Protection where there is a suspicion that they have been abused or neglected.

Her qualifications were not in dispute.
Dr Edwards conducted a forensic medical assessment of AWM on 24 August 2018.
In regard to the external physical injuries, Dr Edwards gave evidence that the bruises on AWM’s left flank and right groin area were likely to be a result of forceful direct impact or gripping, squeezing of the skin, pinching type mechanism, either of which could cause underlying damage which then appears as bruising. It is not possible to date bruises.
She did not consider there was any significance to the scratch observed on AWM’s left, upper lip. A baby of that age can scratch their own face with their fingernails. AWM also had tape on that area when the incubation was done which may explain the scratch.
Dr Edwards gave evidence that the CT scan of AWM’s head showed subdural and subarachnoid haemorrhaging.
There are two ways in which an infant’s brain can sustain that injury. The first is through rotational acceleration or deceleration forces which occur when an unrestrained head is set into motion or abruptly stopped. The rotational forces are where the head moves rapidly around the neck in an arc, either forwards and back, or side to side. That can occur when an infant is held around the torso and shaken back and forward so the head rotates rapidly. The other scenario is if she is forcibly thrown through the air and then lands on a soft surface causing the head to rotate through an arc in that process.
The second main mechanism is via direct linear forces. That mechanism relates to impact crushing of the head, or a drop where the head stays in line with the body.
Each of those two main mechanisms cause different clinical symptoms and findings.
When there is a direct impact or linear force (such as if a child is dropped from a parent’s arms or off a change table), most times the clinician will see direct local injury in the form of a skull fracture or deformity with an underlying area of bleeding. It is the impact which causes local deformation of the skull and blood vessels. The skull is very thin with very young infants, only a few millimetres. The bleeding is seen directly underneath where the fracture is sustained.
Those children do not lose consciousness. They might be a little irritable straightaway afterwards. They do not have problems with their breathing or any subsequent need for intervention or resuscitation.
Unless there is a severe crushing injury, you do not see blood spreading out over the surface of the brain. If there was a direct crushing injury sufficient to cause bleeding on both sides, you would not see injury just within the brain, but you would also see bruising, scalp swelling and skull fractures.
A rotational mechanism causes the brain to move at a different rate to the skull, so the blood vessels which are connected between the brain and the skull and the dura get sheared and tear. The clinician will see the shearing injury to the nerves and the brain and the blood vessels in and around the brain. That is the type of head injury associated with concussion and loss of consciousness. It is also the type of injury that is associated with subdural and subarachnoid bleeding around the brain.[28]
[28]T126.
AWM was carefully examined around her head. There was no swelling that could be felt. There was also no swelling on the CT scan and certainly no skull fractures or bruising. There was no area that would fit with a high force crushing injury applied to her head.
AWM was not one of those children who might be predisposed or at a greater risk of suffering from subdural haemorrhages. There were no underlying problems with her brain.
Dr Edwards expressed the opinion that rotational force caused AWM’s haemorrhages which were small volume and spread out over the surface of both sides of the brain. That means her head had rotated around her neck in an unrestrained movement.
It is not possible to rely upon a CT scan to precisely time or date the injury. On a CT scan, recent blood looks white and then is black after several days. AWM’s blood was white which means the injury was definitely less than a week old. The onset of symptoms is an important indicator of the timing of such an injury.
Dr Edwards gave evidence that concussion symptoms happen immediately, that is, at the point that the head injury actually occurs. That means when Ms Wilson left that afternoon, AWM did not have this injury to her brain. AWM did not have then any of these symptoms.
The combination of AWM’s symptoms at the time of the 000 call/ paramedic attendance are symptoms that a child gets with a concussion from rotational movement of an unrestrained head. That combination of symptoms does not happen with linear impact forces. She was completely floppy, had no tone in her muscles, had a very low GCS score (which included not responding to voice, having some motor responses to painful stimuli only and not opening her eyes spontaneously) and had gurgly, erratic and disturbed breathing. She was deeply unconscious. At the time of those symptoms she already had the damage widespread across her brain.
Infant head injuries are also quite commonly associated with seizures. They are particularly common in infants who have this concussion widespread type injury to their brain.
AWM also had retinal haemorrhages. On her left retina were lots of red patches showing haemorrhaging from damaged little blood vessels. The haemorrhages were around the back of the eye. She also had little dots of red haemorrhages all the way out as far as could be seen. That is significant because occasionally you can get one or two retinal haemorrhages right near the optic disk if there is raised pressure in the head, but when the bleeding goes all the way out around the periphery, that is quite specific for rotational head injuries.
Dr Edwards was asked to respond to the various scenarios mentioned by the accused.
In relation to what the accused first said to the operator during the 000 call, she gave evidence that a child could not spontaneously suffer these injuries.
In relation to the accused saying he fell whilst holding the baby, generally that scenario involves the baby’s head being in a restrained position so there is no free rotation around the neck. Such a scenario would not account for AWM’s injuries.
Dr Edwards gave evidence that something falling onto a baby may cause a crush head injury from static loading-type forces. There have been a few cases reported which fit into the scenarios of a quite high force crush, like a television falling on a child’s head, or a child being compressed between two solid surfaces. In all those cases, there was significant damage to the skin, scalp and skull. Because AWM had no significant external injury, a crushing type mechanism would not explain her intracranial findings.
If AWM’s head was on a pillow on a mattress on the floor when the accused fell on her, then force is applied over a compressible surface. The surface beneath will accommodate some of the forces and so it is much less common that you get head injuries when that surface is soft. That is why playgrounds have the astro‑turf on them. There is a lot of evidence to say the impact onto a spongy or deformable surface is much less likely to cause any head injury.
Dr Edwards examined the video re‑enactment. She gave evidence that such a scenario may possibly explain the small bruise in the middle of AWM’s forehead, but it could not explain any of her other injuries, namely the bi‑lateral subdural haemorrhage and subarachnoid haemorrhage, the retinal haemorrhage and her concussion presentation.
She expressed the view that AWM’s injury was life threatening.
In cross‑examination, Dr Edwards was asked whether if AWM’s head was moved by contact to the chin, that could cause this injury because of a rotational movement of the skull. She said the re‑enactment scenario does not involve sufficient movement of AWM’s head for a rotational force injury because she was lying supine on a padded surface. If the accused’s hand or elbow clipped her on the forehead to move her head quickly to one side, that would not cause a rotation sufficient to result in these injuries. The head would only have rotated a few degrees to one side of the other and there was no impact injury to the child’s face apart from a very small bruise to the middle of the forehead. At most, the head would have moved 45 degrees to one side and that is not sufficient force to cause this injury. She said, ‘if you just move a baby’s head from one side to the other, that’s not going to be a sufficient force to cause intracranial injuries’.[29]
[29]T148.
Dr Edwards understood that the scenario being put to her was that the baby was lying on a soft surface and the head is being moved 90 degrees very suddenly. She said that does not account for the injuries.[30]
[30]T156.
Dr Edwards said that if a child was sitting up and the head was completely free to move in a full arch and the child was struck, that might cause significant injuries, but in these circumstances where the child is reclined on a pillow, the head would not have moved sufficiently to cause these injuries.
She said the issue is whether the head is restrained which is why there are car seats for babies, to ensure that the head does not move sufficiently. It is known that if children are restrained correctly in a car, they have very few head injuries compared to those who are flung where the head moves in a more significant way with much higher forces. They are the children who sustain similar injuries to those of AWM.
Discussion of the evidence
I find that AWM sustained the intracranial injury to her brain when she was in the accused’s care and shortly before he called 000. That was not disputed.
The prosecution does not place reliance on the differing accounts given by the accused as evincing a consciousness of guilt on his part. Rather, the prosecution says that the differing accounts reflect poorly on his credit. Ultimately, the prosecution submission is that the most significant aspect of the accused’s explanations is not the fact that they changed, but rather that each of those explanations was excluded as a possibility by Dr Edwards.
I have not relied upon the text message from the accused to Ms Wilson as an admission of guilt. In my view, his text is as consistent with his described scenario as it is with the prosecution case.
On behalf of the accused, Mr Richards made the submission that when assessing the different accounts given by the accused, the surrounding circumstances cannot be ignored. In terms of the accused’s mental state at the time he spoke to the 000 operator, it would be difficult to imagine anything more stressful for a parent than witnessing a child in that state. The differences in the conversations that followed with the paramedics and the doctor are explicable because of the stressful circumstances in which he found himself. He said it must be remembered that people in panic situations often struggle to find the words that they are looking for and so have difficulty in expressing what they want to say.
Mr Richards’ point is well made. The accounts given by the accused in the 000 call and to the paramedics included AWM spontaneously exhibiting the symptoms, the accused falling with AWM and the accused falling on AWM. The accused must have been under considerable stress at that time. He was either dealing with an unresponsive baby on his own whilst waiting for the paramedics or watching the paramedics treat his daughter who was in a very poor state. The accused’s account became more consistent during his later conversations with the police in the interview, then in the re‑enactment and then with Ms Wilson. Relatively, those later occasions were calmer environments in the sense that there was no child present who was exhibiting life threatening symptoms.
I have not reasoned from the differences in the various accounts given by the accused that he must be guilty. I accept the force of the submission made by Mr Richards and have not used the earlier accounts given by the accused to the 000 operator/paramedics to reflect adversely on the later accounts he gave to the police and Ms Wilson.
Nevertheless, I have no hesitation in rejecting the account given by the accused to the police and Ms Wilson, namely, that he tripped and fell on AWM. I accept the prosecution submission that not only is the account itself implausible but more significantly, it could not be the cause of AWM’s intracranial injuries.
Mr Richards made the submission that the accused’s evidence was supported by Ms Wilson who said the mat could slip and slide. He submitted there is also objective evidence of the accused cleaning the house.
I find it implausible that the accused was standing and sweeping the floor then tripped on the mat from an upright position resulting in a fall onto the baby. As a matter of common sense, there is insufficient momentum in the act of sweeping for a fall onto the baby to be the result of tripping on that mat.
Even if I am wrong, and such a scenario is in itself a plausible one, then I have no difficulty in rejecting it as a possible cause of AWM’s intracranial injuries. I accept the evidence of Dr Edwards to the effect that the injuries suffered by AWM were not consistent with a crushing type injury. There were no signs of injury to the skull or scalp and in any event, the symptoms displayed by AWM were not consistent with being caused by such a mechanism. I accept her evidence which excludes the re‑enactment scenario as a reasonable possibility. I accept her evidence that a rapid movement of AWM’s head to one side in the scenario described by the accused would not produce sufficient force to result in AWM’s intracranial injury.
The evidence against the accused was overwhelming. There is no doubt that AWM was a healthy baby when Ms Wilson left that afternoon. She was in the accused’s sole care. The accused was anxious about being left alone with the baby. I am satisfied beyond reasonable doubt that he held AWM around her flank and violently shook her. I accept Dr Edwards’ evidence that there are no number of shakes that need to occur to cause the rotational force for AWM’s injury. One arc of a baby’s head is quite an extensive movement of the head violently from all the way forward to all the way back. I accept her evidence that the degree of force required to cause a child to get concussion, retinal haemorrhages and subdural haemorrhages is a very violent movement of the head around the neck.
The prosecution has proved each element of the offence. I agree with Mr Wilson’s submission that no matter how sudden or fleeting the accused’s act may have been, and even if he came to quickly regret his behaviour, the evidence establishes that the accused acted deliberately and violently towards his infant daughter and was at the time of that act aware of the substantial risk that his conduct would result in serious harm to her, which it did. It caused life threatening harm.
I find the accused guilty.