R v NB

[2022] NSWSC 151

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v NB [2022] NSWSC 151

Hearing dates:

17, 18, 19, 20, 21, 24, 25, 27, 28 and 31 January 2022
and 1, 2, 3, 4, 7, 8 and 9 February 2022

Date of orders:

22 February 2022

Decision date:

22 February 2022

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The accused is guilty of murder.

Catchwords:

CRIME — murder — death of a child — circumstantial case

EVIDENCE — opinion evidence — exceptions — expert opinion

CRIMINAL PROCEDURE — trial — judge alone

Legislation Cited:

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42.

Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35.

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63.

Holt v R [2021] NSWCCA 140.

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66.

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305.

Meyers v The Queen (1997) 7 ALJR 1488; [1997] HCA 43.

Peacock v King (1911) 13 CLR 619; [1911] HCA 66.

Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44

R v Mostyn [2004] NSWCCA 97; (2004) 145 A Crim R 304.

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35.

The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618.

Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2

Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31.

Category:

Principal judgment

Parties:

Regina (Crown)
NB (Accused)

Representation:

Counsel:
L Shaw (Crown)
J Manuell SC with I Nash (Accused)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
North & Badgery Solicitors (Accused)

File Number(s):

2018/7128

Publication restriction:

There are publication restrictions in place concerning the identity of the accused, the deceased, any children involved in the proceedings and the location in which the deceased passed away pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Judgment

The deceased’s short life

The placement of the deceased with the accused

Investigation into the deceased’s death

The Crown case

The accused’s case

A circumstantial case

Delay in prosecution

The events of the morning of 23 March

The triple-0 call

The accused’s first Police interview

The accused’s second Police interview

The accused’s third Police interview

Covertly recorded evidence

The conversation with the caseworker on 2 April

The forensic evidence

The evidence of members of the accused’s family

Kevin

Child 1

Child 2

Consciousness of Guilt

Child 3

Visits with the Johnsons

Events of the next 24 hours

Events of 22 March

Evidence about the deceased’s sickness in the days before his death

The expert evidence

Dr Brouwer

Dr Marks

Dr Orde

Professor Ellis

Dr Currie

Discussion as to the histopathology

Further comments on Dr Currie’s evidence

When did the deceased die?

Assessment of the accused’s statements to the Police

Anal injury

Fracture of the femur

The head injuries

The timing of the stomach injury

Conclusion

Judgment

1. On 23 March 2015, [redacted] died (his father does not wish him to be identified when publishing this judgment, and therefore I will refer to him as the deceased). He was 20 months old.

2. At the time of his death, he was in the care of the accused and her partner on a temporary basis as foster carers. I will refer to her partner as Kevin throughout out this judgment.

3. On 8 January 2018, the accused was charged with the deceased’s murder. The accused has entered a plea of not guilty to the charge against her.

4. The trial commenced before me, sitting as a judge alone, in the Supreme Court at Dubbo on 17 January 2022 and was heard over a period of 17 days.

5. The Crown submits that I would be satisfied that the accused is guilty of the deceased’s murder but, if I am not, I would go on to consider whether the lesser offences of either manslaughter by dangerous and unlawful act or manslaughter by way of criminal negligence have been established.

6. On investigation subsequent to death, it was determined the deceased had sustained a number of injuries. There is really no dispute as to the existence of these injuries but there is a substantial dispute as to their cause and origin and the time or times at which these injuries might have been sustained.

7. On the evidence adduced and assuming the accuracy of the evidence, no one witnessed the accused doing anything to the deceased which would have caused such extensive injuries. However, there is expert evidence as to the nature of the injuries, the possible mechanics of injury and the possible circumstances and timing of the injuries. The accused has raised the possibility that at least some of the injuries may have been sustained accidentally or by other unknown persons or be self-inflicted.

8. The case involves a consideration of extensive lay evidence and complex medical issues. Evidence was adduced from 26 lay witnesses and 9 expert witnesses.

9. At the outset, I remind myself that the Crown must prove every element of the offence beyond a reasonable doubt, and that there is no onus on the accused to prove anything.

10. The accused did not give evidence in the proceedings but the Crown tendered three electronically recorded interviews with the accused and there was evidence from a number of witnesses of various things said by the accused at different times.

11. Again, I emphasise that no inference can be drawn against the accused arising from her decision not to give evidence in these proceedings. That is her right and I draw no inference in that regard.

12. Further, evidence of the accused’s prior good character was adduced. I accept that the accused was a person of good character, in the sense that she has no criminal history. I have regard to that on the basis that being a person of good character makes it less likely that she would commit the offence of which she has been charged.

13. I will start with providing a short summary of the background to the death of the deceased.

14. In order to protect the identity of children or people who were children at the time of the events, I will use a number of pseudonyms and not refer to addresses unless it is necessary to do so. In particular, I will not identify the other children of the accused in any way other than Child 1, 2 and 3, being the oldest to youngest. I will not identify the place where the events occurred.

The deceased’s short life

15. The deceased was born on 11 July 2013. I am uncertain as to the relationship between his parents. There may have been issues relating to drugs. Unfortunately, the deceased’s mother also died at some stage prior to the trial.

16. The deceased’s mother had at least two older children, being JE and HK. In 2011, both JE and HK had been placed with long term foster carers, who I will refer to as Mr and Mrs Johnson, by the Department of Family and Community Services (FACS). They had lived with Mr and Mrs Johnson since 2011 and remained with them in 2015.

17. The Johnson family regularly attended Church in Dubbo. During 2014 they saw the deceased with his mother at Church from time to time. As of November 2014, FACS assumed responsibility for the deceased.

18. On 5 November 2014, the deceased was placed with the accused and Kevin as foster carers. He went to live at their home in a small village or group of houses outside Dubbo. There are less than ten houses in the village. Shortly thereafter, Mr and Mrs Johnson agreed that they would become foster parents to the deceased on a permanent basis so that he may join his two older brothers. However, they were not ready to take in the deceased at that time.

19. The deceased remained with the accused and Kevin until his death. As it turns out, the deceased was due to be transferred to the care of Mr and Mrs Johnson on 1 April 2015. The accused had been told that she would not be keeping the deceased on a permanent basis on or about 25 February 2015.

20. During the two weekends before his death, he was taken by the accused to spend time with the Johnson family. He last spent time with the Johnson family on Saturday 21 March 2015. He was returned to the accused on the afternoon of 21 March. On the next day, 22 March, he remained at the house of the accused until the accused’s family and other persons from the village attended the accused neighbour’s house, that is Kevin’s brother’s house, to watch a game of rugby league. The time at which he was brought home is a little uncertain, but it was probably between 8.30 and 9.30pm.

21. In her first Police interview, the accused said that she changed him and put him into his cot but, when she checked a short while later, he had vomited. She then bathed him, dressed him, and put him back in his cot where, according to the accused, he went to sleep in his cot in the same room as she was sleeping. The accused says that he did not like being bathed and that he reacted adversely in the bath, including doing what she described as crocodile rolls and banging both the front and back of his head.

22. She heard him making some noises around 2 or 3am but she says he went back to sleep. She says that when she awoke around 5am she noticed that he did not appear to be breathing properly. She removed him from his cot and tried CPR and Kevin called triple-0.

23. In view of the remote area, it took approximately 40 minutes for the ambulance to arrive. Two teams of paramedics attended. When the first team arrived and went inside the house, the accused was observed to be attempting CPR on the deceased.

24. The ambulance officers could not detect a pulse and the deceased was not breathing. They made a number of other observations, which I will come to. They did everything they could to revive him. They continued their attempts whilst transporting him to Coolah Hospital, a distance of 64 kilometres. On arrival at Coolah Hospital they met the CareFlight helicopter and the specialist doctor and paramedic, who took over attempts at revival. The deceased was pronounced dead at 7.30am.

The placement of the deceased with the accused

25. At the time of the deceased’s death, the accused was 38 years of age. She had been living with Kevin since 2007. They had one child between them (who I will describe as Child 3 in this judgment) who was 5 at the time. The accused had two older children to her earlier partner (Child 1 and Child 2) who were 16 and 13 at the time. They all lived in a house in the village. Kevin generally worked away from home Monday to Friday.

26. In the period of 2007 to 2008 the accused had become a specialist carer working with Uniting Care Burnside (Burnside). She had undertaken all the necessary courses and obtained the necessary certificates, including the necessary first aid certification. Her work involved attending at persons’ houses and providing care to children with special needs on a shift-by-shift/ contract basis.

27. She had not worked as a specialist carer since becoming pregnant with Child 3. On 28 January 2014 she and Kevin made an inquiry with Burnside regarding becoming foster carers. They were approved on 21 July 2014. There were two other families in the village who cared for foster children.

28. Burnside undertook an assessment in accordance with its policies and procedures of their suitability to be foster carers. After assessing both the deceased and the accused and Kevin, Burnside placed the deceased with them. The deceased was Indigenous as is Kevin. The accused is not. Part of the assessment undertaken by Burnside involved matters relating to cultural significance.

29. The process of assessment of the accused, placement of the deceased and monitoring by Burnside was thorough. There is no suggestion that the case manager or caseworkers involved did not undertake the proper processes or comply with proper procedures and policies in placing the deceased.

30. Although the circumstances in which all of the documentation was completed by the accused’s various family members is not entirely clear, the material contains handwritten statements from family members as to the caring environment in the family home and the respect and support that the family members had provided to each other.

31. The accused had cared for another foster child for a few weeks prior to agreeing to care for the deceased. Having regard to what she told the Police, she had hoped to have the deceased on a long-term basis. When asked about any work she said that being a foster carer was her job, having regard to the remote area where she lived.

32. Leaving aside the appearance of bruising on the deceased as observed by the Johnsons and one bruise observed by a caseworker (on which I will comment later), there is nothing in any assessment or check undertaken by Burnside which might have suggested to Burnside that the deceased was in danger or not being looked after by the accused prior to his death.

33. At the time of being placed with the accused, the deceased was already walking. At least according to statements made by the accused to various persons at different times, he was a very active child.

34. The Burnside case reports of 2014 refer to an occasion where the deceased was observed with bruises above his right eye and a bruise above his left eye. The records refer to the accused having explained that the bruises were caused by the deceased headbanging a wall and a car.

35. Many persons gave evidence of their observations of the deceased in 2014 and 2015. He was examined in March 2015 by Dr Agrawal. It was said he was a child of normal weight and growth.

36. There can be no doubt that he was generally stable on his feet as of March 2015. According to the accused and having regard to the limited observations of persons such as Child 2 and the caseworker, it seems that the deceased had a tendency to bang his head if he did not get his own way. His Burnside caseworker gave evidence of seeing him do this on one occasion. She also observed him walking into the edge of a table rather than ducking underneath it. Child 2 said that over the course of his time with them she had observed him do it more than once and less than ten times.

37. There is some evidence that the deceased generally did not cry. Neither Mr Johnson nor Mrs Johnson heard him cry at all during their visits with him. None of the people who lived in the village or were familiar with him or had seen him gave evidence of ever hearing him cry other than one person. Having said that, Kevin, Child 1 and Child 2 had heard him cry. Child 1 heard him crying at home on the night of his death but thought it was related to the time of night.

38. Almost all of the evidence about the deceased (and it came from many witnesses) was to the effect that he generally presented as a normal child, running around, playing with other kids, being willing to sit on the laps of adults. He had limited vocabulary, perhaps being able to speak ten words.

39. According to the accused, he did not like having a bath. As I will discuss later in this judgment, this is particularly relevant. When his half-brother HK was first placed with the Johnsons in 2011 (at the age of two), he also did not like getting his hair wet or having his hair washed and would resist. However, according to Mr Johnson, that resistance stopped after a short period.

40. Subject to the suggested tendency of banging his head and not liking a bath, at least up to March 2015, all indicators were that the deceased was healthy and developing in the normal way.

Investigation into the deceased’s death

41. Immediately following the deceased’s death, the Police commenced enquiries into the circumstances leading to his death. The investigation was led by Detective Sergeant Joshua Holgate.

42. The accused voluntarily participated in an electronically recorded interview commencing at 10:22am on 23 March 2015. She participated in another interview on 1 April 2015. She contacted the Police again on 23 June 2015 and the Police recorded a further interview with her that day.

43. When the first ambulance officers entered the accused’s home at approximately 6am, the deceased was observed to be on the ground with the accused applying CPR to him. The ambulance officers took over. They observed bruising to the deceased’s face and that he had a distended stomach.

44. There is no evidence of these marks to his face being present at the time when he left the neighbour’s house approximately nine hours earlier. There is a video taken of the deceased whilst he lay on the hospital bed after all resuscitation steps had ceased. The marks on his face, as well as other bruising and his distended stomach, are obvious. His face was also stained by the acid from his stomach contents. This arose either as a result of the suction applied to his airway during resuscitation attempts, or because he had been lying in his cot in vomit for some period of time.

45. An autopsy was conducted on the deceased by Professor Timothy Lyons from the Department of Forensic Medicine at Newcastle on 25 March 2015. Professor Lyons concluded that the deceased was suffering from multiple injuries. Professor Lyons summarised those injuries as being:

1. Closed head injury with significant sub-scalp and facial bruising;

2. Multiple bruises to the torso;

3. Trochanteric fracture of the left femur;

4. Perianal bruising, fissure and pneumatosis coli of the lower rectal mucosa; and

5. Iatrogenic perforation of the stomach.

46. Professor Lyons reported that in his opinion the severity and number of injuries was inconsistent with the injuries being accidental in nature. He considered that the most likely cause of death was a combination of hypovolaemic shock and a developing head injury. Professor Lyons considered that the iatrogenic perforation of the stomach i.e. stomach rupture, was likely due to the orogastric tube inserted into the deceased as part of the attempts to resuscitate him. As such, he did not consider that the stomach rupture was causally related to his death.

47. As part of his investigation, Professor Lyons obtained a neuropathology report from Associate Professor Michael Buckland, a blood analysis report from a toxicologist, and imagery and radiological investigations.

48. Professor Lyons cut a number of tissue sections from the deceased’s body on which he commented. These sections were preserved in paraffin and were available for subsequent examination by experts who came into the case at a later time. Some of these sections were recut by another forensic pathologist, Dr Issabella Brouwer, as part of her investigation.

49. However, there is some criticism as to some vague descriptions adopted by Professor Lyons and, as he did not consider that the stomach perforation was the cause of death, there was no focus on that area by him.

50. Unfortunately, Professor Lyons died in June 2019, 18 months after the accused had been charged. Following his death, the Crown retained another forensic pathologist, Dr Issabella Brouwer, to review Professor Lyons’ findings, as well as all the material then available to Dr Brouwer, and to form an opinion as to the cause of death and the injuries from which the deceased was suffering at the time of death.

51. Dr Brouwer provided a number of detailed reports and was examined in the witness box for over two days. Dr Brouwer disagreed with Professor Lyons as to the cause of death. Dr Brouwer concluded that the stomach perforation occurred prior to death and was unrelated to the insertion of the orogastric tube as part of the resuscitation efforts. She concluded that the perforation observed at autopsy represented an anti-mortem rupture of the stomach due to blunt force trauma to the abdomen. She considered that the extent of the inflammatory response observed at the site of the stomach perforation together with the evidence of florid peritonitis suggested that the injury occurred some hours before death. She considered that the perforation likely occurred at the same time as the insult to the abdomen.

52. There is a significant dispute as to the circumstances in which and the timing when this injury may have occurred, but there is no dispute and I accept that the deceased did suffer from a stomach rupture at some point prior to death. Indeed, all of the other experts who were qualified to comment and gave evidence, including the experts retained on behalf of the accused, accepted that the cause of death was the stomach rupture rather than any closed head injury as originally suggested by Professor Lyons.

46. As described by Dr Brouwer, following the rupture of the stomach, contents spill into the abdominal cavity causing peritonitis. Without medical intervention, peritonitis typically causes death in children. Symptoms of peritonitis may include abdominal distention and abdominal pain as well as nausea, vomiting, diarrhoea, constipation, loss of appetite, fatigue, fever, and chills. Put simply, the stomach perforation causes a chemical imbalance leading to peritonitis which causes toxic shock and ultimately leads to cardiac arrest.

47. Further, all the experts accept that a large amount of force to the abdomen would be required to cause a rupture of the stomach. There may of course be many ways in which a large amount of force could have been directed at the deceased’s abdomen, and the various possibilities for this to have occurred were the focus of questioning of lay and expert witnesses.

48. Despite the extensive bruising to the face and head, the insults which would have caused that bruising did not cause the diffuse cerebral oedema which was referred to Professor Lyons.

49. Associate Professor Michael Buckland, an expert neuropathologist, diagnosed a diffuse cerebral oedema due to hypoxic-ischemic brain injury. Such swelling can be caused without a traumatic brain injury. A condition that can lead to the type of hypoxic-ischemic brain injury observed in the deceased is septic shock caused by peritonitis.

50. It will be necessary to consider all of these injuries in some detail, as the medical issues arising in this case are complex and of significance. It is only necessary to say at this stage that I accept (and there appears to be no dispute) that:

1. There must have been multiple insults to the deceased’s face and head and other parts of his body at some stage prior to his death. Whether these insults happened all at once or over a number of days or weeks and precisely when they occurred and under what circumstances is a significant issue.

2. The stomach rupture is a very rare injury. It is normally associated with motor vehicle accidents; such is the force that would have been required to cause the rupture. It was described as occurring like a hammer and anvil, with the insult likely coming from the front with such force that the stomach is squeezed against the vertebral column causing the bursting, followed by the stomach contents leaking out of the stomach. It is more likely to occur when the stomach is full.

3. There may be a number of theoretical or potential events which could have caused a stomach rupture, such as being deliberately struck through a punch, a knee or a kick, or some other incident said to include walking into a person using a swing or falling on a trampoline. It is not an injury that could have been sustained merely by falling over. Indeed Dr Currie, an expert paediatric surgeon called in the accused’s case, suggested that the force required might be more like falling from a height of 10 metres rather than 1 or even 5 metres. That it is a rare injury does not detract from the fact of its occurrence and the consensus of expert opinion that it could only have happened as a result of a significant blunt force trauma to the stomach, that is a direct forceful hit. However, the fact that it is rare does mean that there are limited studies and analysis of this type of injury, particularly where it is not associated with injuries to other internal organs and particularly in children.

4. The fracture of the femur is also a very significant injury. It could only have occurred through the application of even greater force than would have been necessary to rupture the stomach. The fracture did not occur at an area of a growth plate, meaning that the fracture site was not a point of particular weakness. There was also complete separation of the bone. Such a fracture would be extremely painful and would have prevented the deceased walking, running or really doing anything due to the severe nature of the fracture. That fracture must have occurred before the deceased died because there was evidence of bleeding into the muscle tissue. There was also evidence of the movement of fat emboli from a long bone into the lungs suggestive of having migrated from the fracture site into the lungs. There was some dispute about this evidence. It would be another piece of evidence confirming that the deceased died after the fracture. In any event, it is clear that there was bleeding into the muscle tissue.

5. The injury to the anus was a similarly unusual injury to find in a child of that age, but on my analysis, it was a relatively minor injury, and there is some dispute as to whether it would have involved any penetration.

The Crown case

58. As set out in s 18(1)(a) of the Crimes Act 1900 (NSW), murder is established when a voluntary act or omission of the accused causes the death of the deceased and the act is committed:

1. with an intent to inflict grievous bodily harm, or

2. an intent to kill, or

3. reckless indifference to human life.

59. It is the Crown case that the accused assaulted the deceased at home on 22/23 March 2015 and that the accused intended to inflict grievous bodily harm.

60. The Crown case is that the injuries from which the deceased was found to be suffering at the time of his death are such that they could only have been caused by a deliberate assault by the accused and that the force necessary to have caused such injuries leads to the inference that the accused must have intended to cause grievous bodily harm.

61. During her opening address, Senior Counsel for the accused identified the critical issue as the timing of the trauma to the stomach that caused the stomach perforation which led to the deceased’s death. As it was the injury to the stomach which caused his death, then unless the Crown has established that that injury occurred in the home and in circumstances in which only the accused could have assaulted the deceased, then the accused could not be convicted of either murder or the lesser offence of manslaughter.

62. The Crown accepts that, if it does not establish this, then I could not convict the accused of murder or manslaughter.

63. The Crown relies on what it describes as a constellation of injuries as assisting in establishing that the stomach perforation occurred between 9pm and 5am. ^[1] In particular, the Crown submits that I should accept that the bruising to the deceased’s face (although not all the bruising) arose as a result of insults to his face which happened in the home and were not accidental or self-inflicted. Similarly, the Crown says that I should accept that some of the other bruising and, in particular, the bruise shown on the deceased’s abdomen adjacent to the point where his stomach perforated, was not accidental and again was inflicted between the hours of 9pm and 5am.

    1. R v Mostyn [2004] NSWCCA 97 at [116]-[122] (McColl JA); (2004) 145 A Crim R 304.

64. It is important to emphasise that the Crown must establish that the accused deliberately inflicted the injury which caused the deceased’s death, that being the stomach perforation, with the intent to cause grievous bodily harm. The Crown says it is entitled to rely on the constellation of injuries as evidence of an intention to cause grievous bodily harm.

65. It would not be sufficient merely to establish that the accused deliberately caused the fracture of the femur with the intent to cause grievous bodily harm as that injury did not cause his death. The evidence is that the occurrence of the other injuries, such as the fractured femur and the head injuries, may have hastened his death, or at least in medical terms, be seen to in some way contribute to his death. However, the Crown accepts that findings about the occurrence of, for example, the fracture of the femur, without a necessary finding in respect of the stomach perforation, could not lead to the accused being guilty of murder. ^[2]

    2. Meyers v The Queen (1997) 7 ALJR 1488 at 1489 (Brennan CJ, Toohey, Gaudron, Gummow and Kirby JJ); [1997] HCA 43.

66. In the event that the Crown has not established murder, the Crown submits that I would find either that the accused was guilty of manslaughter by unlawful and dangerous act or manslaughter by criminal negligence. In any case, I would still have to accept that it was the act or omission of the accused which caused the death of the deceased.

67. Manslaughter by unlawful and dangerous act arises where the accused causes the death by a voluntary act that was unlawful and dangerous. The act must be one that a reasonable person in the position of the accused would have appreciated was an act that exposed another person to a risk of serious injury. ^[3]

    3. Wilson v The Queen (1992) 174 CLR 313 at 332-333 (Mason CJ, Toohey, Gaudron and McHugh JJ); [1992] HCA 31; Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 at [75] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

68. The suggestion that the accused would be guilty of manslaughter by criminal negligence arises on a different basis to either murder or manslaughter by dangerous and voluntary act. Evidence was adduced from experts during the trial to the effect that with proper treatment at some earlier time, and even with the stomach perforation, fractured femur and head injuries, the deceased would have lived. A finding of criminal negligence would necessarily require me to make findings as to the deceased’s condition at a certain time such that the accused should have sought treatment.

The accused’s case

69. The accused submits that I would not be satisfied beyond a reasonable doubt that the Crown has proved the elements of the offence of murder or any of the lesser offences which may be available. Specifically, the accused submits that I would not be satisfied beyond a reasonable doubt that the insult to the deceased’s abdomen, that is, the application of such severe force, happened after the deceased had returned home that night. I also could not be satisfied beyond a reasonable doubt that the accused did anything to cause that stomach perforation.

70. In respect of the fracture of the femur, the accused acknowledges that there is evidence that the deceased was able to walk and play before he left the neighbour’s house. However, the accused submits that I would still not be satisfied beyond a reasonable doubt that she did anything to the deceased after his return home that night to cause the fracture of the femur, except for the possibility of how she responded to finding the deceased in his cot the next morning.

71. The accused says that the expert evidence establishes that it is reasonably possible that the insult to the deceased’s stomach happened at least many hours and up to three days before his death, and points to the opinion of at least two of the experts on which she relies that, based on the histopathology, the stomach perforation may have occurred more than 10 or even 24 hours before death.

72. Further, the accused submits that having regard to the evidence as to the deceased’s activities in the days before his death, there remains a reasonable possibility that something happened to him at some earlier time which might have led to the stomach perforation.

73. There is no onus on the accused to prove anything, but the accused did adduce evidence from three medical experts in her case.

74. It is important to observe at the outset that the process of considering when the injuries to the deceased happened and, in particular, when he sustained the stomach injury, involves an assessment of the clinical picture as presented by the deceased himself and others’ observations of him, findings on post mortem and expert opinion and analysis of all of that evidence, including the histopathology. That is not done in isolation.

75. Of course, if an injury must have happened at a certain time as a matter of medical science, the necessary finding would ensue. However, the medical science is not so clear or certain in this case, and I can only make findings having regard to my consideration of all of the evidence. The accused says that it is not a matter of preferring one opinion over another, but the effect of the expert evidence is that there remains a doubt as to when the injuries occurred, and in particular the stomach perforation, such that the Crown has not discharged its onus and I could not convict.

A circumstantial case

76. The Crown case is a circumstantial case in the sense that according to the evidence adduced by the Crown, no person witnessed the accused perform the acts which the Crown says caused the deceased to suffer injury and led to his death.

77. As stated in The Queen v Baden-Clay (“Baden-Clay”),^[4] the principles governing cases that turn upon circumstantial evidence are well settled. The accused cannot be guilty of murder unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”: Peacock v King. ^[5]

    4. (2016) 258 CLR 308; [2016] HCA 35 at [46] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

    5. (1911) 13 CLR 619 at 634 (Griffith CJ); [1911] HCA 66.

78. Further, not only should the accused’s guilt be a rational inference, but it should be the only rational inference that the circumstances would enable the tribunal of fact to draw. ^[6]

    6. Plomp v The Queen (1963) 110 CLR 234 at 252 (Menzies J); [1963] HCA 44; Thomas v The Queen (1960) 102 CLR 584 at 605-606; [1960] HCA 2.

79. As identified in Baden-Clay,^[7] for an inference to be reasonable it must rest upon something more than mere conjecture.

    7. At [47] (French CJ, Kiefel and Gordon JJ).

80. As observed by French CJ, Kiefel and Gordon JJ in Baden-Clay at [47]:

“For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal." (footnotes omitted).

81. It is also important to observe that it is not encumbent on the accused either to establish some inference other than guilt should be drawn or particular facts that would tend to support such an inference. ^[8] At all times the onus remains on the Crown to prove the offence beyond a reasonable doubt.

    8. Barca v The Queen (1975) 133 CLR 82 at [105] (Gibbs, Stephen and Mason JJ); [1975] HCA 42.

82. All of the circumstances must be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. ^[9] I must not approach the evidence in some piecemeal fashion. ^[10]

    9. Bayden Clay at [47] (French CJ, Kiefel and Gordon JJ); The Queen v Hillier [2007] HCA 13 at [46] (Gummow, Hayne and Crennan JJ); (2007) 228 CLR 618.

    10. The Queen v Hillier at [48] (Gummow, Hayne and Crennan JJ).

83. In a circumstantial case, it is not necessary for the Crown to prove every fact on which it relies beyond a reasonable doubt. Yet there are certain facts so critical to the Crown case that they must be proved beyond a reasonable doubt. These are otherwise known as intermediate facts. In this matter, one such fact is the timing of the stomach perforation.

84. It is critical to the Crown case that the insult causing the stomach perforation occurred at the accused’s home after she came home that night.

85. The accused did not give evidence but three electronic recorded interviews with the Police were admitted into evidence. Senior Counsel for the accused submitted in closing that I would accept that which the accused said in those interviews.

86. If I accept what the accused said in the Police interviews then I must acquit, that is, because the accused has not admitted that she did which could have caused the stomach perforation or other injuries. Rather, the accused says that she did not.

87. She was not asked about any possible explanation for the stomach perforation as, at the time of the interviews, it was not thought to have been the cause of death. However, she was asked about the femur, and in her second interview, suggested possible explanations that did not involve any intention on her part to injure the deceased. If I accept what she says in these interviews, then I must acquit.

88. Further, if I am uncertain as to whether to accept that evidence, then I would still have a reasonable doubt about her guilt and I would not convict.

89. I also observe that I may accept part of the evidence of any witness, including the evidence forming part of the accused’s interviews, and reject other parts. I am entitled to and also must consider all of the accused’s evidence, including her own observations of the deceased over the three days leading to his death.

90. Even if I reject part or all of that which the accused said in her interviews that is not evidence of the opposite, that being, her guilt.

91. If I reject what she said to the Police, I would put that part of her evidence aside and consider whether the Crown has discharged the onus of proof which remains on it. ^[11] I do not use my rejection of her evidence as evidence of her guilt.

    11. Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J); [1985] HCA 66.

Delay in prosecution

92. The accused seeks a warning under s 165B of the Evidence Act 1995 (NSW). Although s 165B(1) suggests that the section only applies in criminal proceedings in respect of which there is a jury, if I am satisfied that the accused has suffered a significant forensic disadvantage because of the delay in her being charged, I should take that disadvantage into account when considering the evidence.

93. As set out in s 165B(7), matters which may be regarded as establishing a significant forensic disadvantage include but are not limited to the fact that any potential witnesses have died or are now not able to be located and the fact that any potential evidence has been lost or is otherwise unavailable.

94. After close of the case the accused forwarded an agreed position and agreed draft direction, which I adopt and set out below.

“There is a warning I must give myself relating to this issue of delay in this matter.

The accused was not charged until 8 January 2018, nearly three years after the deceased’s death. She then did not stand trial until January 2022. None of the delay was of the accused’s making. It is most important that I appreciate fully the effects of delay on the ability of the accused to test prosecution evidence and bring forward evidence in her own case, to establish a reasonable doubt about her guilt.

In this regard, I refer to the following specific difficulties encountered by the accused due to the delay in this matter:

1.    The inability to test the evidence of Professor Lyons due to his death in June 2019; and

2.    The loss of opportunity to bring forward and adduce evidence of the deceased’s clinical presentation on Friday 20, Saturday 21 and Sunday 22 March 2015 specifically relating to the presence or otherwise of a stomach perforation.

Had Professor Lyons been available to give evidence at trial, the accused would have had the opportunity to test his evidence regarding the topics such as those identified in the accused's written submissions discussed in Court on 9 February 2022 (T918) (eg. observations of all injuries vs. photography / xanthochromic staining of abdominal tissues / vagueness of descriptions of tissue sections).

From 24 June 2019 it became clear that the deceased’s cause of death was in fact the result of a perforation to his stomach. Had the precise cause of death been known from the commencement of the investigation of this matter, witnesses could have been specifically questioned regarding the presence or otherwise of a stomach perforation in the deceased on Friday 20, Saturday 21 and Sunday 22 March 2015. The witnesses’ memory for details would have been clearer. The accused lost the opportunity to bring forward evidence that may have contradicted evidence in the Crown case or supported her case, or both.

Because the accused has been put into this situation of significant disadvantage, she has been prejudiced in the conduct of her defence. As a result, I warn myself that, before I could convict the accused, I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters just identified — the fact that those matters have not been tested to the extent that they otherwise could have been and the inability of the accused to bring forward evidence to challenge them further, or to support her defence.”

The events of the morning of 23 March

95. The accused called triple-0 at 5.17am on 23 March 2015. An ambulance was dispatched from Coolah. The ambulance arrived at the house at 5.57am.

96. Ambulance officers Philippa Summer Lyndon-James, Haley Mestroni (nee Estreich), Michelle Lipscome and Shannon Rees (nee Skinner) attended. Ms Lyndon-James appears to have been the most senior of the four ambulance officers and paramedics who attended at the scene from the two different units. She was part of the first unit which arrived at the scene and commenced to treat or see the deceased at 5.59am.

97. When she arrived, the deceased was lying on his back on the floor of the main bedroom. The accused was providing CPR. Ms Lyndon-James immediately commenced oxygen therapy and airway clearance via a suction catheter. Ms Mestroni was in charge of the equipment. Ms Mestroni applied a defibrillator firstly at 6am and on a number of occasions thereafter.

98. According to Ms Lyndon-James, when she arrived and first examined the deceased, there was no pulse and he was not breathing. She observed facial bruising and his stomach was distended. She observed that the accused was quite distressed. There was no activity on defibrillation. She said that the attempts at insertion of a cannula were unsuccessful and that there was no haemorrhaging from the wound caused by the attempts to insert the cannula. She said that in her experience, haemorrhaging will occur on insertion of a cannula, even for some time after the heart has stopped. She said that there were two unsuccessful attempts to insert the cannula into the area under the elbow. She said that despite everything done, there was never any pulse or breathing detected.

99. The ambulance officers continued to work on the deceased at the house until 6.40am when they decided to take the deceased back to Coolah where arrangements had been made to meet the CareFlight helicopter. They continued to work on the deceased using all available methods to resuscitate him. When they arrived at Coolah, they met the doctor (Dr Coulton) and the intensive care paramedic (Mr Shiac-Wise) from the CareFlight helicopter. Again, further attempts were made to revive the deceased without success. He was pronounced dead at 7.30am.

100. Ms Lyndon-James’ acknowledged in her oral evidence that the ambulance electronic medical record was a compilation of information provided by all of the ambulance officers. She also acknowledged that the minute-by-minute management and reassessment of record contained within the report was prepared by her back at Coolah, that is, immediately after treatment of the deceased had stopped. Although this was agreed to, it was not suggested that any part of that minute-by-minute record was inaccurate.

101. The ambulance report also contains a case description, which again is a summary of things seen, heard and observed by the ambulance officers. Ms Lyndon-James described in the case description that the child had fallen in the bath/ shower the night before, that he was unsettled when the accused put him to bed, and that the accused had heard him at approximately 3am but thought he was talking in his sleep and thus did not get up to look at him.

102. Ms Lyndon-James also said that before commencing to treat the deceased she noticed that his abdomen was cold to touch but his limbs were of a warmer temperature. She thought that the deceased appeared not to have had a heartbeat for some time. She said she found it difficult to compress his chest. She was taken to the record of observations in the ambulance report and confirmed that there were four finger marks present on the skin of the abdomen which she believed had caused the bruising and a further finger mark near the belly button.

103. She was cross-examined about the ambulance records. She was asked questions about the use of the tubes and the reference to gurgling. She confirmed that the gurgling was caused by the use of the equipment rather than any independent gurgling by the deceased. She agreed that she had been in physical contact with the child a lot during her attempts to treat him or revive him. She had made two attempts to intubate him. She agreed that she needed to manipulate him somewhat. She also said that she found it difficult to move his neck, which she had found unusual.

104. It is not necessary to comment further on the observations of the other ambulance officers. They are generally consistent.

105. Evidence was also adduced from both Dr Coulton and Mr Shiac-Wise, who were at the hospital when the deceased arrived. They could not revive him, and their observations were consistent with those of the ambulance personnel.

The triple-0 call

106. At the commencement of the triple-0 call and presumably when the accused did not believe that the call had been answered, the accused can be heard saying to Kevin, “They’re going to think I bashed him.”

107. The initial description provided by the accused to the operator was that she had a little 18-month-old foster child who had fallen over in the bath the night before. The accused said that she had heard him making noises during the night, and that she now thought he had thrown up and “swallowed it again”. She also said “now he’s not breathing very good” and that she had “just tried to give him CPR and now he’s like he’s full of air”.

108. She was asked whether he was awake, and she said, “No, not sure”. She was asked whether he was conscious, and she said, “No his eyes are open …” but Kevin interrupted and said, “He’s not breathing”. The accused then said “He’s not breathing properly”. She said he was cold and that both his mouth and hands were cold.

109. Kevin was heard to say in respect of the ambulance “Tell them to hurry he’s not breathing”. She responded, “He is breathing, but he’s not breathing properly”. She referred to shallow breathing and being worried that his eyes were half open. She said he had bruises “from the bath, from falling over and hitting his head.” She then asked the operator, “Am I going to get in trouble for this?”

110. The operator asked her to put him on his back on the ground. She said “He was on the bed - is that alright? The operator told her that he needed to be on a firm surface, such as the ground. At one point, Kevin said that he could not hear the deceased breathing. This was again followed by the accused saying, “He just breathed”, followed by Kevin saying, “He’s not breathing much”, then “He’s not breathing, his belly’s too hard.”

111. The triple-0 call lasted 42 minutes. Much of that time was spent with the operator counting out so that the accused and/ or Kevin could do CPR. At one stage the accused said, “His bruises look heaps worse. Would that be because he’s losing oxygen?”

The accused’s first Police interview

112. The first interview commenced at 10:22am on 23 March 2015, within three hours of the deceased being declared dead. The accused’s presentation was rather bizarre in the sense that she smiled and even cracked the odd joke with the officers. It was hardly the presentation that might have been expected given the circumstances.

113. In her closing address, Senior Counsel for the accused suggested that she was shocked and distressed. She did not appear to be, but she may have been nervous and anxious, and people react to adversity in different ways. It has often been said that in assessing evidence, a small amount of fact is worth a large amount of demeanour. By this it is meant that I should be careful in placing any real weight on a person’s demeanour, and I do not do so.

114. The accused described the deceased as hyperactive but that he had settled since she had reduced his sugar intake. However, he still had behaviours such as “head butting things”, and that he was “always hurting himself.” She also said that he hated the bath, and that she had found out his brothers also did not like taking baths either.

115. She was asked about whether he’d had “a bit of a gastro”. She said he had been throwing up, and that it had started when he went on the overnight visit to the new carers.

116. The accused then said that Child 3 had had it the week before, and that he had been sick for a couple of days. When she picked up the deceased on the Saturday, he had a sleep in the car and was “still pretty hot”. She got him to drink water and gave him lemonade to cheer him up. He sculled it down. She put cold things on his neck. She said she gave him a bit of dinner that evening. However, on the Sunday he was “really tired and dopey and not himself.” She also said that the deceased was quiet when they visited the accused’s neighbour’s house, and that usually he would have been running around with the other kids but was not.

117. She did not bath the deceased upon returning home because he hated the bath, so instead she changed him and put him to bed. However, he then threw up all over the cot. She got Kevin to take the sheet out of the cot and she gave the deceased a bath. She said, “that’s when he started, like … he’d done it the week before as well”.

118. She told the deceased that he had to lie down. He then started rolling. She said that he would go “around in the bath and hit his head”. He also swallowed a bit of water. She said she noticed he had “the bruise and bumps on his head again”. She said the bruising was in the same place as the week before.

119. She thought it was 10pm when she put him to bed again. She put him into bed after making his cot again, and at about 2am or 3am she heard him making some noises. She didn’t take any notice, but she now thought that was when he was “throwing up and it wasn’t coming out, it was going back down.” When asked what made her think he was throwing up, she said that was what the ambulance had told her.

120. Kevin got up in the morning and then something woke her up. She said goodbye to Kevin and came back into the room. She checked the deceased “but he didn’t look right”. She tried to sit him up, but he was “floppy”. She said that “he was still breathing, but not good.” Kevin rang triple-0 immediately. She said she laid him on the end of the bed. She tried CPR herself, but only gave two breaths and “his belly went up”.

121. She described how she found him, and then said she did the first two breaths because of his shallow breathing. After that, she said his tummy came out but it did not go back in. It just stayed that way, that is, out. She said it was probably because of all the air going in, but she did not know. She referred to having done first aid courses two or three times, but that it was hard when it came to the real thing and she panicked.

122. She mentioned that he had some bumps on his head previously. She was asked to identify where they were. She drew on a face one large circle in the middle of the forehead and four circles; two to the left and two to the right of that large circle.

123. She said that he bruised easily. She explained that he had thrashed about in the bath the night before, as he had done the previous week when she had tried to wash his hair. She described him rolling over in the bath as she tried to wash his hair and sit him up. She referred to bruising around the hips as being where she had tried to grab him while in the bath.

124. Nothing said in this interview would provide any explanation for the fracture of the femur or the stomach perforation having occurred at her house that night (that is, if they did). However, she was not asked about either of those injuries.

The accused’s second Police interview

125. The accused attended for a further interview at the Mudgee Police Station on 1 April 2015. The interview was extensive (3 hours and 46 minutes).

126. When asked about whether the deceased had had any earlier health issues, the accused identified that she thought he walked funny and that he may have had a hip problem. She also said he had issues with his skin and that he reacted to being bitten by mosquitoes.

127. As I will discuss later, the accused rang the Burnside caseworker the next day and referred to her perception that he had a problem with his hips.

128. The accused was asked about the deceased being a bit sick in the days leading up to his death. Perhaps importantly, she said that when she dropped him off with Mr Johnson on Friday, it was different because he had a sleep in the car on the way and he usually did not. He was usually dancing. She said that when she got there she said to Mr Johnson, “I don’t know he doesn’t seem right and he’s a bit hot you know and he seems really tired.”

129. She was asked what happened once she got home on Saturday (having picked up the deceased). She said that he always wakes when the car stops and that he sat near his toys for a while. She kept feeling him to see if he was hot. She gave him a bit of food and water and she gave him a bath and some Panadol and then put him to bed. He did not vomit at all on the Saturday, but she said he was “very lethargic … like really tired”.

130. She said that on the Sunday morning, the deceased was playing outside for a while with his toys and then he had a drink of water and Weetbix or toast. She said nothing out of the ordinary happened that day.

131. In the afternoon, she and Kevin were sitting out the front having a couple of beers. One of GN’s children came and invited them over. They went over. She said she could remember sitting with the deceased and giving him some water, a banana bar and half of a banana. She got him to sit up on the lounge to eat it before he played with the other kids.

132. At one stage, she told the deceased to go over to JP and give her a hug. He went over and sat on her lap for a while, and then played with the little kids. The accused described them as the little Burnside kids, presumably meaning the other foster children who were staying with the other families. She recalled Child 3 playing with the deceased in the dirt. When asked about the sorts of things they were playing, she said Child 3 and the others were just running around and playing with dirt, and the deceased was just sitting there watching them. She described him as good but not his hectic self. He was a bit quieter. She said he did not have a temperature.

133. The accused then says she went home to get the deceased something to eat. JN had already given Child 3 some lasagne that JN had cooked. However, when the accused got back, Kevin said that the deceased had had some lasagne leftover from Child 3. She then only gave the deceased one or two chips and a fish finger because she was worried about feeding him too much.

134. She estimated that Kevin had had eight beers at the function, and she would have had five or six. She said out of ten she placed Kevin on the scale of four to five and herself on three, with one being sober and ten being “as drunk as you can be”. She said she didn’t check the time when she left. It could have been 9pm or later.

135. She was asked whether the deceased did anything to hurt himself at the neighbours or whether he became upset at all while they were there. She said that he did have a cry with the kids, but they were the little kids about the same age, and she did not see what had happened. He was playing with another boy about two-years-old.

136. She said that the deceased had not been vomiting at the neighbour’s house. She said that he did not have any injuries on him when she came home from the neighbour’s house. She said she hadn’t noticed that he had done anything to hurt himself. Nothing happened on the way home in the Ute (it was only a little over 100m).

137. She was asked to describe what then happened in some detail. Again, she described that she changed the deceased into his pyjamas and put him to bed. She turned the bedroom light off. She asked Child 2 to run a bath for Child 3. She went out the front and had a smoke or a couple of smokes with Kevin.

138. When she went to go to bed, she did not turn on the bedroom light but says that she grabbed a torch to check on the deceased. She saw that he had thrown up in the cot. She took him out of the cot and put him in the bath. She said she didn’t really look at how much vomit there was because she also felt sick herself, that is, because she had the bug too. She said she carried him to the bath. He was crying a little bit. She said there was still water in the bath from Child 3’s bath earlier. She said it was hard to tell, but that the water level might have been 20 or 30 centimetres deep. She then put some more warm water in because the water temperature had cooled down.

139. She sat him in the bath and went to put his clothes in the washing machine (which was only two metres away). She said she already had the hose on. There was a hose on the tap as there is no shower in the premises. She said she went to wash his hair. He thrashed around. She sat him there for a while to try and calm him down. She ultimately said that he might have rolled four to six times. She agreed that when he rolled her arm was not underneath him because she had taken it out to scrub his hair and he was lying down at that stage. She then said after the rolling he got up on his knees and put his head in the bath and headbutted it. She thought the deceased’s banging onto the bath was a seven or eight out of ten, with one being a light tap and ten being a full on, very forceful bang.

140. She stopped him rolling by grabbing him and sitting him back up. She tried to rinse out his hair in the same way, but he flipped himself back into the water. She thinks he rolled once or twice more. She said she grabbed him under the arms to pull him out. She stood him up, but he fell back. He was wobbly but she thought he was just tired. She says he fell back from a standing position and hit the back of his head.

141. She said that whilst she was trying to wash his hair, she tried to grab him because he was twisting around. He would turn his head to the side and swallow water, and then he would come up and turn his head right around and hit his head on the bottom of the bath. She said she would turn him around again, and he would do it again.

142. She said that he had done the same thing the week before. She said that he would act in this way nearly every time his hair was washed.

143. She took him to the change table and put his pyjamas on, that is, after the bath. She said he looked tired and weak from being sick, but she played with him “round and round the garden” and played with his feet. She would lay him down and he would lift his feet up. She agreed that she had a hold of his feet and she lifted them up and he was kicking his feet. She thought this playing went on for about five minutes. She thought he seemed alright, just tired and sick, so she put him to bed.

144. She said she should have taken him to the hospital then, but that he had done it many times before. When she put him to bed she said he was sooky, and she thought that was because he hated the bath. Kevin was asleep at the time.

145. The accused was asked where Child 2 and Child 3 were when she came back from a smoke. She said they were in bed.

146. She said Kevin was a heavy sleeper and he is deaf.

147. She said nothing else happened that night which would have caused any injuries. The only thing she could think of was grabbing the deceased in the bath. She could not think of anything that may have caused any injuries to his legs or front or back.

148. She explained how she went to his cot in the morning. She never usually does. She normally goes back to bed after Kevin leaves. She first thought the deceased was asleep, but soon realised that he wasn’t. She picked him up. He was all limp. She shook him saying “wake up” and grabbed him. He wouldn’t wake up, so she said she laid him on the floor, gave him two breaths and yelled out to Kevin.

125. She then said that she pushed on his belly demonstrating because she thought she had hurt him earlier by giving him two breaths, because it was at that point that “his belly went real big.” Kevin asked what was wrong with his belly. She realised later that the air was not going into his lungs, and then she said he took one more breath, and that she thinks that was his last one. They then put the deceased on the floor. She saw there was stuff coming out of his mouth, and she wiped his mouth with a towel. She also said that she wiped his mouth earlier as he had split his lip or bit his tongue in the bath.

126. She was asked whether at any time she had dropped the deceased. She said, “I could have, no, no, I don’t think so. I’m just trying to think that’s the cot in the room and that’s the hardest bit to remember. I remember shaking him … and grabbing him. I might even grabbed him by the head in the cot … I think I grabbed him by the head, by the head, face by the hands, body, just, got him, put him on the floor right there.”

127. She was asked again did she at any time drop him. She again said that she could have but was not sure. Towards the end of the interview, the accused was informed of the injuries which had been found on post-mortem, including a fractured leg. She said: “could, when I (demonstrates) threw him, like when I panicked and got him out of the cot because, he couldn’t have had a broken leg when I was playing the foot game he didn’t …. It must have been when I got him out of the cot and shook him around (demonstrates) dropped and threw him, not threw him but.”

128. She was asked again whether she threw him to the floor. She said, “I could have. Like I said, I had done it forcefully. I can’t, just can’t believe his leg was broken.”

129. She later said she remembered grabbing him and grabbing his legs and holding them up to his belly to try and make him vomit. She thought that could have done it. She described how she pushed his belly up. She said “Must be. It’s the only way it could have happened. I didn’t bash him.”

130. She had demonstrated holding him and trying to push him down and push his belly and she then said, “and threw him on the ground and put his legs up”. She then said she squeezed his stomach hoping he would throw up. She said she lifted his legs up towards his head a few times. She said she lifted his legs up straight. She thought there was something wrong with his hips because he never walked right.

131. When further pressed for an explanation, she said, “Even when I got him out of the cot I must have chucked him around or forced him or threw him harder than what I thought. I was in a panic. That’s the only way I can explain it. I don’t know. Like I said I grabbed him … I don’t know I panicked … I didn’t want to hurt him.”

132. It was put to her that Child 3 had said that both she and Kevin had smacked the deceased before on the forehead. She said, “[Child 3] is a looney that kid”. She denied ever smacking the deceased on the forehead. The accused was pressed on how he could have broken his leg. The following exchange ensued

Q: Did you do it?

A: What?

Q: Broke his leg?

A: Yeah.

Q: You did do it?

A: I had to of.

Q: How did you do it?

A: I don’t know. That’s what I’m saying.

Q: Did Kevin do it?

A: No. No. Am I going to jail?

157. I do not take those statements by the accused to the Police as any admission that the accused broke the deceased’s leg, but more of a statement that she could not explain it and there was no-one else who could have done it.

158. The second interview is replete with expressions from the accused to the effect that she did not know and did not remember and that she wanted to know herself what happened. She seemed to be saying that she could not believe herself that she would have done anything to break the deceased’s leg. However, she was also adamant that the only time that anything could have happened to the deceased was in the bath or after she got him out of the cot.

The accused’s third Police interview

159. On 23 June 2015 the accused contacted the Police and invited them to come to her house for a further interview. They went there that afternoon. Having regard to the content of the discussion that day, the purpose of inviting the Police out must have been to explain again to the Police how often the deceased hit his head and where he hit his head. She said he used to hit his head eight out of ten days. She said she started writing it in her diary, although she only wrote it once to explain to Burnside.

160. She said he would “just head-butt things, like unbelievably”; she had never seen a kid like that and he didn’t care or show it if it hurt him. She then went to various places around the house demonstrating where he would head-butt the pole or the wall. She said that other people had seen him head-butt, such as her sister and the caseworker. She said he hated tea-time; he hated bed-time; he hated bath-time; he hated restrictions.

161. She was asked if she had given any more thought as to how the deceased might have broken his leg. She said the only way she could explain it would be that Kevin might have trod on him when he was going out to see if the ambulances were coming. She said he went out a couple of times.

162. When pressed as to whether she could remember it happening, she said she remembers him getting up but she could not remember the detail of it; her brain just wouldn’t let her.

163. She was asked again about the towel in the bucket next to the cot. She said she had forgotten all about it, but that he either bit his lip or his tongue in the bath and she had used the towel to get the blood off. She also both the towel and bucket were for him just in case he threw up again. She then said that she used the towel to wipe the excess saliva off him during CPR.

Covertly recorded evidence

164. After being interviewed separately on 1 April 2015, Kevin and the accused drove home with Kevin driving. The Police must have obtained authority to place a device in the car as the whole of their conversation was admitted into evidence.

165. The accused submits that she could not have known that the conversation was being recorded. The accused submits that what she said to Kevin or Kevin said to her was consistent with what she had told Police. That is generally so.

166. Plainly, the accused was frustrated and angry about what had happened at the Police station. She told Kevin what she had told the Police, albeit over the whole of the journey in slightly different ways, but she certainly said nothing which could be considered as any sort of admission.

167. Having said that, her commentary was somewhat curious and, in particular, she volunteered that she did not tell the Police about TN, meaning she did not tell the Police about JN’s comment to TN that he should not be rough and should not abuse he deceased. She said she didn’t want to get him involved.

168. It is surprising that the accused did not tell the Police about what she said she had heard JN say to TN. It was plain from extensive questioning of her by the Police and indeed plain from what she said in the car ride home that she knew that the Police were seeking some explanation from her as to what might have happened to the deceased, and that the Police wanted to give her an opportunity to explain things.

169. It is difficult to understand why she was trying to protect TN (as she suggested to Kevin) bearing in mind, the effect of what she told the Police was that the deceased was fine when he came home, albeit he threw up in his cot.

170. I am not sure what trouble she thought TN might have been in if she volunteered that she heard TN’s mother say not to be rough with the deceased. It was a rather unusual thing to volunteer to Kevin that she had not said and an unusual thing for her not to say to the Police if it had happened.

171. As it transpired, neither JN or TN agreed that such a conversation took place and neither of them said anything in their evidence which might lead me to conclude that TN had hurt the deceased in any way.

The conversation with the caseworker on 2 April

172. The accused rang her Burnside caseworker at 9.40am on 2 April 2015. I do not know why she decided to ring her that day, but it may be that the purpose of the call was to talk about what had happened and what was happening. This phone call was following the Police interview of 1 April 2015. She referred again to the deceased hitting his head but also referred to the Police telling her about the fracture. She referred to things being blurry. She said the Police were really pressing her. She said “… then they started really pressuring me and … started yelling at me and they’re saying well I think it happened like this and you and Kevin had a big fight and then you took it out on him. I said oh, what so we had a big fight and I got up at 4 or 5 in the morning and broke his leg …”

173. That was not said as part of the interview the day before. I do not know why she said it was.

174. She then said to the caseworker that he used to walk funny on his leg. She never made a big thing about it, but she reckoned it was partly fractured from before.

175. There is no medical evidence or other observational evidence to support this suggestion. She again mentioned that he’d bang his head on the cupboards and other things and he was really a rough child; that she had never known him to cry. The caseworker said that even when he hurt himself, she had never known him to cry.

The forensic evidence

176. The Police found a green fitted sheet in the washing machine. This was vomit stained. Both Kevin and the accused say Kevin put this sheet in the washing machine before Kevin went to bed. There was also a bath towel in a bucket next to the cot.

177. Both the fitted sheet in the washing machine and the unfitted sheet which the accused said she put in the cot after the deceased’s bath were found to have bloodstains. Based on DNA testing, it is likely that this was the deceased’s blood. The bath towel found next to the cot was also tested and showed the deceased’s blood.

178. It is difficult to understand why there would have been blood staining on the fitted sheet, as this vomit stained sheet had been removed by Kevin after the deceased vomited and before he was bathed. The accused submits that there is no aging of the blood stains and thus it is not possible to determine when the sheet was stained with blood.

179. It is also difficult to understand when the blood-stained towel was used. The accused told the Police it might have been placed there in case he vomited again. The accused also said that she was wiping slobber off his mouth when doing CPR.

180. Further, although there were blood stains on the second sheet consistent with the deceased lying in his cot and bleeding, the photos of the sheet in situ indicate a clean sheet that has no vomit.

181. The evidence does not permit me to make any finding about why there was blood on the first sheet and no vomit on the second sheet. However, it must be that at some stage the accused had used the towel to wipe blood from the deceased.

182. She did not mention that he was bleeding in the triple-0 call. She said in her third interview that he bit his tongue or had a split lip, but the examination of the tongue and lip was recorded as normal in the report. I accept that the accused is at disadvantage in not being able to ask Dr Lyons whether he would have recorded such things if they were present, and I make no finding about whether he had bitten his tongue.

183. I will now consider the evidence of the deceased’s movements and behaviour in the period prior to his death.

The evidence of members of the accused’s family

Kevin

184. Kevin gave a statement to the Police on 25 March 2015 and participated in a further interview on 1 April 2015.

185. Kevin generally worked away from home Monday to Friday. He agreed that most of the caring was done by the accused. He was asked whether he had ever given the deceased a bath. He said he had. He said:

Q: Can you tell me about how that worked?

A. Yeah. I just gave him a bath. Like, give him a bath and slowly put the bucket on him of water, because he didn't like the water over his head or anything like that there, but, yeah, just gave him a bath and he seemed all right. Good to me.

186. He said he never smacked the deceased and never saw the accused do it. He said the deceased could walk and run around. He recalled seeing him fall over from time to time. He would put his hands out and get back up. He said that if the deceased hurt himself he would cry.

187. He only saw one bruise on the deceased which was on his eye above his forehead at some time. He was told by the accused that he got that by falling over. Plainly there is a significant divergence between the accused and Kevin on the presence of bruising.

188. In answer to the question whether he noticed any injuries on the deceased he said “No. Not sure. No.”

189. He said he remembered that at GN’s place the deceased was playing around with the kids and kicking the ball, playing games and everyone was just around him cuddling him up, just having fun with him. He thought that when they left the gathering, the deceased was like a bit crook still but no different to when he arrived. He stayed in the car finishing half a can of beer and the others went inside. He was in the car for 15 to 20 minutes.

190. He said that when he went inside the accused was changing the deceased because he spewed up a bit. He grabbed his clothes and put them in the washing machine and then went to bed and went to sleep. He agreed he could have grabbed the sheet off the cot as well. He didn’t put the washing machine on.

191. The accused and the deceased were in the bathroom when he went to bed. When he last saw the deceased he was in the bathtub. There was water because she was bathing him. There was water in the tub but the taps weren’t going. He didn’t see the accused using the plastic bucket.

192. When asked about his state of intoxication, he said he wasn’t blind drunk. He was only 6, 7, 8. He said the accused would have been the same in the sense that was not too drunk When asked whether she was 8 out of 10 he said she could have been different. He wasn’t sure. It was nothing like falling down or anything.

193. He said that when he saw the deceased in the bath he was happy. He was sitting in the bath. He did not see any injuries on the deceased at that time.

194. The next morning he got up and the accused came out and said there was something wrong with the deceased. He raced in there and saw he was lying on the bed. They were both in shock. He said ring the ambulance straight away and the ambulance told him how to do the CPR and that’s what he was doing. He was doing the compressions. The accused was helping there as well. She was talking on the phone. He said he was blowing air into his mouth. He thought a little air would come back out. He thought the deceased’s tummy was up a little bit.

195. When asked about the deceased’s face he said it was like just going to sleep and his eyes were weary, staying in the same position. He put his ear to the deceased’s chest and he thought he heard a little heartbeat. He did what the triple-0 person said to do.

196. He was asked whether he had observed any fresh bruises on the deceased when he saw him that morning. He said, “I seen a couple on his ‑ like, just one bruise on his back”.

197. He was asked again whether he had new bruises on his face and he said “No”.

198. He was asked whether he remembered the accused speaking to Child 2 about what to tell the Police and he said “No”.

199. He was asked about whether he knew how the deceased got the fracture of his thigh bone or injuries to his anus or bruises to his stomach. He said “No”.

200. He was asked whether he looked at the deceased’s body before that gathering at the neighbour’s and he agreed that he could not say whether they were fresh or not.

201. In cross-examination he agreed that nothing happened on that Sunday which was unusual. He didn’t really remember who was there. He didn’t go into the neighbour’s house. He was sitting watching the TV screen at the back. He wasn’t watching how much anyone else had to drink and it was not possible for him to say how much anyone else had to drink. He couldn’t remember who gave the deceased the food, that is, lasagne and chips at the neighbour’s house. He remembered country music being played when they left.

202. He recalled that when he first came into the house, he saw the accused changing the deceased on the change table. He went back out to finish his can of beer. When he came back in they were in the bathroom. He recalled she was using wipes to clean him on the change table. He then closed the door when he went outside. He didn’t recall the accused saying anything about being annoyed about the deceased being fed twice that night. He recalled that when he went into the bathroom the accused told him that the deceased had spewed. He got his clothes and the sheet and put it in the washing machine.

203. It was suggested to him that he never washed the deceased’s hair. He said he had a bucket when he gave him a bath, he would put a bucket on slowly over his body. He said he was not sure whether it was over his head and then said he hadn’t washed his hair or shampooed his hair.

204. He recalled that the accused had spoken to him about the deceased splashing around and rolling around in the bath. He agreed that the accused had said he would get bruises from time to time because he thrashed around in the bath and that’s why they used a little container or bucket to pour water slowly over him. He was taken to the Police statement where he said he’d seen him do it in the bath, just turn around and hit himself around; he goes mad in the bath. He thought he was frightened in the bath and he was concerned. He was asked whether he had done that for him at some stage and he said, “Just a little not much though”.

205. He didn’t hear the deceased screaming or crying when he went to bed or throughout the night.

206. He was asked about what happened during resuscitation. He was doing chest compressions. He said he didn’t have his boots on at that stage. He was pretty sure he never had boots on. He said he had never seen the accused hit the deceased.

207. There was some difference in Kevin’s evidence from examination in chief to cross-examination, particularly in relation to the deceased’s behaviour in the bath and bruising. Further as established in cross examination I doubt that he was in any real position to comment on how much anyone else had drunk. However, nothing said by Kevin to the Police or in oral evidence might suggest that the deceased was injured before he came home or that the sort of bruising observed the next morning was present the day before.

208. Further his observations of the deceased’s head banging were vastly different in particular to that which the accused described in her third interview. It was not suggested to Kevin that he had any involvement in any injury sustained by the deceased. Indeed, he was not asked whether he might have trod on the deceased the next morning a suggested by the accused in her third interview.

Child 1

209. The accused’s son was 16 at the time. He spoke to the Police on 23 March. He was not really involved with the deceased. He did not go to the neighbour’s house on the Sunday. He was in his room playing video games. He recalled that the accused had been giving the deceased a bath when he went to get a drink of water. He returned to his room. He said he could hear some crying but thought that it was because it was late in the evening.

Child 2

210. Child 2, the accused’s daughter, was 13 as at the time of the deceased’s death. She was at home over the weekend of 21 and 22 March 2015. She attended perhaps for a brief period of time at the function next door on the afternoon of 22 March. She then visited her friend and spent some time with her friend at a different place. She was inside the house at No. 5 the whole time between the deceased returning home around 9pm and being woken the next morning after the ambulance officers has arrived.

549. The ambulance officers observed extensive bruising to his forehead. Haley Mestroni also observed bruising to the chin and lips before suction had been applied, which was also not observed by any expert. This could be reflective of the gastric burn around the deceased’s mouth. If it is it could only have arisen if the deceased was lying face down in his cot in his own vomit.

550. Dr Brouwer undertook an extensive analysis of the bruising. It must be that when the deceased returned home that night he did not have the substantial bruising to his face. That is, because no-one including family members observed it.

551. A video was taken of the deceased as he lay on the hospital bed. The marks to his face are obvious and significant and of slightly different colours. Those marks are not shown in the photographs taken of the deceased by JE on 21 March. They were not observed by persons at the function on 22 March. Something happened at the accused’s home that night that caused those marks on the face. The marks include bruising abrasions and scratching including on the neck.

552. Bruising results from some form of insult to the skin and underlying tissue. A person is less likely to bruise from an insult to an area such as the abdomen which has underlying fat tissue than an area such as the forehead where there is very little to protect a person. Indeed, because of that underlying fat tissue, it is possible that a person might suffer a trauma, for example, to the abdomen, and no bruise results.

553. On the other hand, as is demonstrated in this case, there can still be bruising to the abdomen. It might be suggestive of significant force.

554. Further, in particular, the marks on the stomach above the umbilicus which were described by Dr Brouwer as being looking like finger marks were not observed by Mr Johnson when he was changing the deceased on 21 March. Mr Johnson provided a diagram to the Police as to where he observed bruising on the deceased and did not mention the front of the abdomen.

555. It is likely that some of the bruising observed by Professor Lyons and as shown in the photographs occurred at different times. For example, there was a bruise on the forehead and the back observed by Mr Johnson. MN said he saw a bruise on the arm.

556. The problem in identifying the age of the bruises arises at least to a certain extent because there is some lack of some specificity in the cell sections obtained by Professor Lyons.

557. However, some of the sections are sufficiently marked. For example, Professor Lyons refers to sections from the scalp. This can only be the top or the back of the head.

558. The presence of hemosiderin on the use of special stains in some sections on the head tends to suggest that those bruises would have occurred much more than hours before the deceased’s death. It follows that, for example, the large bruise shown in the photograph and in Professor Lyons’ diagram on the back of the deceased’s head after his head was shaved most likely happened well before the night of his death. It follows that prior to his death and before the night of his death, the deceased had sustained trauma to his head which caused significant bruising to the top and back of his head.

559. Because of his hair this would not have been observed by anyone. In her third interview with the Police the accused described how the deceased would bang his head front and back. It is possible that such significant but unseen bruising was caused by such head banging but he must have been banging his head with real force to cause such bruising.

560. Having said that the best indicator of when the trauma which caused some of the bruising happened are people’s observations. The accused told the Police she did not observe any bruising other than the five bruises on his forehead, which no-one else had observed and was quite inconsistent with the observations of Mr Johnson.

561. Those of the experts that commented did not consider that the bruising present on death was consistent with accidental injury or the accused’s description of the deceased rolling in the bath.

562. It is possible that the deceased reacted adversely to being put in the bath. He might have squirmed and rolled but having regard to the expert evidence, this would not explain the nature and extent of the marks to the deceased’s face and other parts of his body such as the umbilicus observed the next morning.

563. I am satisfied that the level and extent of bruising and marks to the deceased’s body is not consistent with the deceased rolling and banging his head in the bath. I accept the expert analysis. I am satisfied that the marks on the deceased’s face and some other parts of his body were caused by some sort of a struggle or assault which involved deliberate insult to those areas, through either slapping or forceful gripping.

The timing of the stomach injury

568. A number of possible explanations for the stomach perforation were put forward, including:

1. a punch, knee or kick by another person;

2. being struck by an animal such as being kicked by a cow;

3. being struck by a person on a swing, presumably a moving force versus a static force; and

4. jumping on a trampoline and falling on its side.

569. There may be many other possible ways in which a stomach perforation could occur involving significant blunt force trauma. As I have already indicated, no evidence was adduced from any witness which would tend to suggest that the deceased was either accidentally or deliberately hurt either at the Johnsons, at home on the Saturday night or at the neighbour’s house on the Sunday.

570. I am satisfied that that the deceased was not hit by a child or by a person on a swing; or struck by an animal; or that he fell whilst on some play equipment such as a trampoline. He was not injured in a motor vehicle accident and other than when he was at the Johnsons, he was under the care and supervision of the accused.

571. Nothing said by the accused in her Police interviews raises the possibility of some other accidental injury befalling the deceased before he returned home at 9pm. Further, there is no evidence that he was struck by another person at the neighbours and the evidence does not suggest a reasonable possibility that he was. I am satisfied that he did not exhibit any behaviour consistent with having a stomach rupture at the neighbours’ house.

572. In the end, perhaps the focus of the accused’s submissions that there remains a reasonable possibility consistent with the accused’s innocence was the expert evidence, particularly the expert evidence adduced from Dr Currie and Dr Orde. I have already commented on their evidence.

573. Their evidence does not cause me to have a reasonable doubt as to when the deceased sustained the injury to his stomach. I am unable to accept Dr Currie’s opinion because it is based both on his analysis of the histopathology which is out of step with the analysis of the other experts (and he would defer to them) and his conclusions as to the observational evidence are either incomplete or not supported by all of the evidence. His assumptions as to the observational evidence are not consistent with my own findings.

574. The consensus of expert opinion is that the deceased suffered the perforation at the same time as he trauma which caused it. It would have produced symptoms such as pain and vomiting. It would have been painful to move and pressure on the part such as by picking him up or holding him on the hip would surely have been painful for him.

575. I am satisfied beyond a reasonable doubt that the deceased suffered that injury in the home on the Sunday night. I do not know precisely when he sustained the injury but would have been closer to the time he was put in his cot than when he was discovered the next morning.

Conclusion

576. This is a circumstantial case. It is necessary that I be satisfied beyond a reasonable doubt that the elements of the offence are established and I must not convict the accused of any offence unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

577. Even accepting that the deceased may have had a tendency to bang his head in frustration and that may account for the occasional bruise seen on him at earlier times or even some of the bruising identified during autopsy, I accept the consensus of expert opinion that the bruising was unlikely to be accidental and would not have been caused by rolling in the bath.

578. The version given by the accused could not explain the number and positioning of the bruising particularly on the face, as well as the abrasions and fingernail scratches and abrasions to the neck. The accused’s statements could not explain the bruises to the abdomen above the umbilicus in the very position where Dr Brouwer opined would be consistent with the type of trauma which may have caused the stomach perforation. The finger or knuckle marks were not caused by the deceased rolling around in the bath or the accused merely grabbing him in the area whilst he was in the bath or picking him up. The bruising above the umbilicus must have been caused by a forceful impact at that point like a punch.

579. I do not accept the accused’s explanations for the fracture of the femur.

580. I thus do not accept the version of events proffered by the accused to the Police as to the occurrence of the injuries. As I do not accept it, I must put it aside and consider whether the Crown has discharged its onus of proof, having regard to the other evidence.

581. I am satisfied beyond a reasonable doubt, that having regard to all of the lay and expert evidence, that the injuries to the deceased were not caused accidentally or self-inflicted by the deceased. The facial injuries arose from someone either hitting him, slapping him, grabbing him or some way forcing him into a hard surface. Abrasions and fingernail scratching might suggest some type of resistance.

582. I am satisfied that when the deceased came home that night, he was not suffering from the type of bruising on his face or some of the other bruising such as around his umbilicus. He was not suffering from a fractured femur. He was not suffering from the effects of a stomach perforation. The next morning, he had died, and had sustained all of those injuries between coming home and death. I am entitled to have regard to the fact that the deceased sustained all of those injuries and that they occurred in the home that night, in my assessment of how they occurred. I am satisfied that injuries did not arise as part of the process of resuscitation.

583. The deceased suffered from three types of severe injuries that night. I am entitled to have regard to the fact of all of those injuries occurring in the house that night in my assessment of how they occurred. Whilst I have examined the injuries closely and independently, I must not approach my assessment in a piecemeal fashion.

584. I am satisfied having regard to all of the evidence that the deceased was the subject to some sort of violent assault that night. He could not have injured himself. There is no other rational inference available.

585. I have regard to the fact that the accused was a person of prior good character which means it less likely that she would commit such an offence but I must assess all of the evidence presented in this case. In my view, the evidence that the deceased was subject to a violent assault that night is compelling.

586. I have reviewed the Crown evidence critically having regard to the agreed forensic disadvantage, but there is really no explanation for the sustaining of the fractured femur or the perforated stomach in the home that night and the type of extensive injuries to the face which were not apparent when the deceased came home that night, other than a deliberate assault.

587. I do not know what happened in the bath, but I have accepted what Child 2 said she observed about the accused’s conduct towards the deceased in the bath. She was handling the deceased roughly and she observed the forcing down into the bath. When Child 2 came back into the bathroom to go to the toilet, she observed the deceased suffering bruising around the eye. He was quiet. He simply looked at her, blinking. She did not know whether he was lying down or sitting up at the time. As he had at least that bruising by that time he must have been injured but he was quiet seemingly just looking up Child 2.

588. Further, Child 2 said that when she went back into her room she could hear the accused yelling at the deceased. Everyone else was in bed. It is not known why the accused was yelling at the deceased. The yelling must have gone on for some period as Child 2 said she asked her younger brother to ask the accused to stop yelling.

589. The accused was heard saying before she realised the triple-0 operator had picked up “They’re going to think I bashed him”. That is not evidence that she did bash him and she might have been referring to the obvious bruising on his face but the accused also told the Police that she was the only one who could have bashed him (of course without admitting that she did).

590. On the evidence before me, there is no other person who could have assaulted the deceased in his home that night. The possibility of any other person doing it was not raised by the accused.

591. I am satisfied that the injury was not accidental in the sense that it could not have been caused by the deceased falling or doing something himself. The obvious explanation for the stomach perforation is that which was shown above the umbilicus. As Dr Brouwer and Dr Orde explained, the injuries were round and organised in a linear pattern. They are suspicious of knuckle injuries, for example, just by a fist, such as by a punch.

592. All the experts agree that the stomach perforation could have been caused by a punch. Indeed, a punch to the stomach provides a rather obvious explanation for what occurred and would be consistent with all of the expert evidence including the evidence of all of the experts relied on by the accused. The fact that the experts could not exclude the possibility of some other trauma to the abdomen which was not revealed by a mark or bruise does not detract from the obvious explanation that the deceased may have been punched with such force so as to cause the stomach perforation. A punch would fit with Dr Currie’s description of the type of force required and indeed fit with all of the expert analysis.

593. I do not know whether the deceased might have been the subject of the application of the sort of trauma or force necessary to inflict the stomach perforation at home before he was put to bed the first time, in the bath or at some later time, but I am satisfied beyond a reasonable doubt that that injury occurred after he returned home.

594. As I said at the outset, it is important not to assess the circumstances in a circumstantial case in some piecemeal fashion. I have endeavoured to deal with each of the injuries sustained and I have accepted that the fractured femur and at least some of the bruising was caused by an insult on the deceased in his home on that night.

595. I am entitled to have regard to that fact in assessing the mechanism and timing of the stomach perforation. I have identified why I have accepted that the injury to the stomach occurred in the home that night and I am satisfied that the injury to the stomach was part of the same transactional conduct, that is, the assault on the deceased, which happened inside the home.

596. The injury to the stomach and indeed the other injuries were not caused merely by the deceased being treated roughly. The impact which would have been necessary to cause the stomach perforation would have been substantial. It would have been such that I am satisfied that the force must have been applied with the intent to cause grievous bodily harm. There is no other inference available having regard to the nature and extent of the injuries.

597. I am satisfied that the deceased was violently assaulted by the accused after they returned home on 22/23 March 2015.

598. There is evidence that the accused behaved aggressively when she drunk. She had consumed six to eight beers. Kevin tended to suggest that she might have had a fair amount to drink but I would not make a finding based on Kevin’s view of someone else’s state of intoxication. There is no doubt that the accused had been drinking but the evidence does not allow me to make any finding as to the extent to which she might have been affected by alcohol. The only evidence about her response to alcohol is that she became aggressive when she drunk.

599. There is evidence that she was yelling at the deceased which would tend to suggest that she was in some way angry with him. The accused may have lost control when dealing with the deceased that night. It is possible that her memory of precisely what happened with the deceased that night was somewhat clouded or uncertain, hence her general statements to the Police about wanting to know what happened and not being able to believe that the deceased had broken his leg. However, whether the accused’s memory of events was blurry or whether she was simply deliberately leaving matters out does not matter. I put those parts of her evidence which I do not accept aside and consider whether the Crown has discharged its onus

600. I am satisfied beyond a reasonable doubt that the accused assaulted the deceased and did something to him with such force, possibly a punch, that caused the stomach to perforate and which ultimately led to his death. I am not suggesting that the assault was planned. It may be that the accused simply lost control being angry with the deceased. I do not know when in the sequence of events at home that night the stomach perforation occurred or indeed when the fracture of the femur occurred. I do not know whether the accused might have struck the deceased before she placed him in the cot for the first time causing him to vomit. One explanation for this sort of struggle which the accused says was going on in the bath may be that the deceased was already in pain, the vomiting could have been an immediate response to the blow to the stomach. This is what Dr Currie described as the reaction to the perforation. In the end, I am unable to make any finding as to whether the deceased was struck a forceful blow before being put to bed for the first time or in the bath or some time subsequent to the bath.

601. However, I am satisfied beyond a reasonable doubt that the deceased was either deliberately struck by the accused on one or more occasions with such force that his stomach perforated and his femur fractured. Alternatively, his leg must have been twisted with such deliberate force or he must have been thrown against something with such force that his leg fractured. None of those events could have been accidental having regard to the expert evidence as to the force which would have been required coupled with the injuries, in particular, to the face, which suggest gripping or slapping or scratching. I am satisfied that the accused assaulted or attacked the deceased with such force as to cause all of those injuries.

602. In order for the accused to be convicted, I must be satisfied that there was a voluntary act of the accused and that the act was committed with the intent of causing grievous bodily harm. There is no evidence or even suggestion that the accused’s acts that night would not have been voluntary. Whether she was affected by alcohol is irrelevant. The force required to cause the injuries would have been significant. The femur and stomach injuries could not have been caused by some accidental excessive gripping or inadvertent twisting. Whether or not the actions of the accused arose out of a temporary loss of control such acts by an adult on a 20 month old toddler could only have been intended to cause grievous bodily harm.

603. I am satisfied that the Crown has established that the accused is guilty of murder.

604. [Name redacted], you are convicted of the murder [Name redacted].

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Endnotes

Amendments

23 February 2022 - [59]-[61] replaced with numbering style

[81] replaced with quote style

TOC updated

24 February 2022 - Footnote formatting corrected.

Decision last updated: 24 February 2022