R v O'Brien

[2003] NSWCCA 121

CITATION:	R v O'Brien [2003] NSWCCA 121
HEARING DATE(S):	3 March 2003
JUDGMENT DATE:	6 May 2003
JUDGMENT OF:	Giles JA at 1; Dunford J at 2; Smart AJ at 79
DECISION:	Appeal against conviction dismissed; leave to appeal against sentence granted; appeal against sentence dismissed; conviction and sentence confirmed.
CATCHWORDS:	CRIMINAL LAW - manslaughter - mother's refusal to seek medical treatment for child - duress - Battered Wife Syndrome - sufficiency of summing up - relating evidence to issues in the trial - lies - CRIMINAL LAW - sentencing - manslaughter - mother's refusal to seek medical treatment for child - assistance to authorities - possibility of serving sentence on protection
LEGISLATION CITED:	Evidence Act 1995, s 165 Criminal Appeal Rules, r 4 Crimes (Sentencing Procedure) Act 1999, s 23
CASES CITED:	Domican v The Queen (1992) 173 CLR 555 Osland v The Queen [1998] HCA 75, 197 CLR 316 Papakosmas v The Queen [1999] HCA 37, 196 CLR 297 R v Button & Griffen [2002] NSWCCA 159, 129 A Crim R 342 R v Jeffrey (unreported - CCA - 16 December 1993) R v Runjanjic (1991) 56 SASR 114 R v Zorad (1990) 19 NSWLR 91 Zoneff v The Queen [2000] HCA 28, 200 CLR 234
PARTIES :	Jessi O'Brien
FILE NUMBER(S):	CCA 60279/02
COUNSEL:	EL Fullerton SC (Appellant) DC Frearson (Crown)
SOLICITORS:	DJ Humphreys (Appellant) SE O'Connor (Crown)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/31/0045
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

60279/02

GILES JA
DUNFORD J
SMART AJ

Tuesday, 6 MAY 2003

R v JESSI O’BRIEN

Judgment

1 GILES JA: I agree with Dunford J.

2 DUNFORD J: This is an appeal against conviction and an application for leave to appeal against sentence by Jessi O’Brien for the manslaughter of her daughter Kudaratilaal O’Brien, known as Laali, who died of malnutrition on 8 February 2000 in Queensland, aged 14 months, following her conviction by a jury in the District Court at Port Macquarie and the sentence of imprisonment for 5 years with a non-parole period of 2 years imposed by his Honour Judge Garling.

3 The deceased was born to the appellant and her de facto husband, Peter O’Brien, on 10 December 1998. She had two older sisters, Levy who was born in 1996 and Andashair born in 1998, both of whom have always been healthy. Although the appellant gave birth to the deceased at home unassisted, as with her other births, she attended the surgery of Dr Paul Webster with the deceased briefly on 15 December 1998 as a formality for registration of the birth, and again on 26 February 1999 in relation to a swelling on the child’s upper lip.

4 Narina Rawson-Harris, Peter O’Brien’s daughter from a previous relationship, who had lived with her father and the appellant in Woolgoolga from 1993 to 1996 saw the appellant, her father and the three children in the main street of Bellingen in October 1999 when she noticed the deceased was quite still. She again saw them in Bellingen in December 1999 when she noticed that Laali was again very still and that her skin was saggy with quite a green colouring. She told the appellant and her father that she thought the child looked ill and that she needed some conventional help, to which the appellant replied, “Don’t you think I know she looks ill”.

5 Ms Rawson-Harris told them that there was talk around the town of the child’s condition and that to her knowledge welfare was going to be called. She told them to get some help, i.e. to see a doctor, and asked them had they been doing enough.

6 On 18 January 2000 the Department of Community Services (DOCS) in Coffs Harbour received a notification regarding the physical welfare of the deceased and on 28 January, Richard Lewandowski, a district officer of DOCS stationed at Port Macquarie, went to the appellant’s home at 1 Toorak Court, Port Macquarie. The door was answered by Peter O’Brien. Mr Lewandowski identified himself and asked to see the child. Mr O’Brien refused and threatened him, whereupon Mr Lewandowski telephoned the police for assistance and, accompanied by Detective David Richards and Constable Ozimek, returned to the premises.

7 After speaking with Detective Richards, Peter O’Brien called to the appellant to “bring the baby out”. Mr Lewandowski said that the deceased appeared very jaundiced, very thin with no skin tone, pale and did not appear attentive. The police were of the same view. Mr Lewandowski asked a number of questions about the child and asked the O’Briens to take her to a doctor. Eventually the appellant went inside and returned a short time later saying that she had made an appointment to see Dr Webster the following day.

8 On Saturday, 29 January she attended Dr Webster’s surgery with her eldest daughter Levy and the deceased, whilst Mr O’Brien waited nearby. Dr Webster did not fully examine the child, but his immediate impression was that she was severely malnourished, thin, her bones were visible on the parts that he could see, it was obvious that her body weight was very low for her age, she was jaundiced and weak, making relatively little movement for a baby of that age and was not inquisitive or active. Dr Webster took a history from the appellant and indicated to her that the deceased was very sick and should be taken to hospital for investigation and treatment.

9 The appellant said she did not want the deceased to have blood tests because it was against her and her partner’s religious beliefs but she wanted to take her to a naturopath. Dr Webster advised against that course of action, as he did not believe that a naturopath would have the expertise to treat the child and said that she could suffer mental impairment if she was not appropriately treated.

10 Whilst the appellant was present Dr Webster telephoned the Accident & Emergency Department at Port Macquarie Base Hospital to inform them that the deceased would be brought there that day. Mr Lewandowski gave evidence that he was aware that Dr Webster had later made a follow-up call to the hospital and, on discovering that the appellant had not attended with the baby, had telephoned the DOCS after hours emergency line.

11 Upon leaving the doctor’s surgery the appellant joined her husband, and that afternoon the family left Port Macquarie and travelled to Queensland. The following day, Sunday 30 January they attended Ms Claire Brassard, an unregistered naturopath, at Ormeau in Queensland. Ms Brassard examined the deceased and saw that she was jaundiced, her stomach was swollen and her liver enlarged. She was breathing with difficulty, was very lean with little muscle tone and her teeth had deteriorated.

12 Ms Brassard said that after examination of the child she discussed the question of hospitalisation with the appellant and offered to drive her to the hospital in order that the child might be rehydrated, but the appellant told her that she was opposed to treatment of that kind and as a consequence Ms Brassard proposed naturopathic treatment for two days, and suggested that failing any improvement the child would be hospitalised. The appellant denied that Ms Brassard had suggested hospitalisation or had offered to drive her there. Ms Brassard then provided naturopathic treatment to be administered orally and said she would see the child the following Tuesday, 1 February.

13 She then arranged for the appellant and her family to stay with a friend of hers, Bronwyn Mele, at a remote property where they arrived late that evening. The following morning (Monday) Mrs Mele saw that the child was thin with lose skin, a greyish colour and during the morning she asked, “Is it an option to go to hospital?”, to which the appellant replied, “Not at the moment”. Mrs Mele assisted the appellant in administering the naturopathic substances to the deceased over the following week.

14 Mrs Mele gave evidence that Mr O’Brien was adamant that the child was not be hospitalised, that he openly expressed his views on the subject on three or four occasions, that the appellant appeared subservient to his domination and nodded her agreement.

15 It appears the child rallied for a couple of days and when Ms Brassard saw her on Tuesday 1 February she noticed that the baby was more alert and her colour was better, but she was concerned that she had lost her ability to swallow and vomited what she had taken. She explained that in hospital the baby would be rehydrated with intravenous fluid, but the appellant shook her head and said “no”.

16 The child then deteriorated and on Sunday 6 February Ms Brassard was called. She arrived at the Mele property at about 9pm when she observed the deceased was distressed, her breathing was really bad, and her skin was white.

17 On February 8 at about 1pm Ms Brassard saw the child again, she was yellow and her breathing was very short. She told the appellant, “She’s on her way out, she’s dying, there’s nothing more that we can do”. The appellant told her that she had stopped the treatment on Sunday 6 February. Ms Brassard said that she told her that “There could still be time to go to hospital for you if you don’t want to get into trouble”. The appellant denied that she said this although she conceded (T 154) that some reference was made to hospital that day. The child died shortly before midnight on 8 February.

18 Early the following day the appellant and the rest of the family headed back towards Port Macquarie, but were stopped near Coffs Harbour by police who had been alerted to their disappearance. They were taken to Coffs Harbour Police Station and interviewed separately.

19 In her interview the appellant said that she did not think that there was any need for the child to have medical attention although she was not as robust as her sisters, but had grown at the same rate until she was about 6 months old. She claimed that as a member of the Sikh religion it was her belief that her children should not be infused with fluids or have artificial substances injected into their bodies, and accordingly blood tests could not be done as that was sacrilegious.

20 She said they left Port Macquarie to seek a second opinion and it was a joint decision by her and her husband to do so, although they did not feel their child was at risk so long as she stayed with them. She said that while she was in Dr Webster’s surgery she wanted to take the child to hospital, but after speaking to her husband her opinion changed because of the beliefs she held. She claimed that at no time did Ms Brassard say the child needed to go to hospital or obtain medical attention.

21 After separating from her husband on 31 March she arranged to take part in a further recorded interview on 13 April 2000 in the presence of her counsel and her solicitor.

22 In that interview she said that fear of her husband governed most of her actions and speech, that she had been subjected to extreme physical violence at times and there was also severe psychological and emotional abuse and restriction of personal liberties and freedoms. She had been isolated from friends and family, and it was fear of reprisal that prevented her from bringing this to the attention of the authorities. She said that when speaking to her husband after seeing Dr Webster, he said to her, “You’re not taking her to hospital, I’ll tell you that right now”.

23 She agreed that it was no part of the Sikh religion not to take a child to hospital or have treatment, but that it was her husband’s belief, and that Ms Brassard had voiced adamant opposition to hospitals. When she became aware that the child was dying she decided not to go to hospital because she did not want her to die away from her, but in her arms.

24 She said that she lied in the first interview at her husband’s direction and that, whilst her husband did not physically threaten her after she had seen Dr Webster and reported his advice, she was nevertheless controlled by fear because violence and threats had occurred often enough for her to respond by submission. She maintained that her fear of him prevented her from doing what she knew was right. She suggested the naturopath as a second opinion and that Ms Brassard’s phone number had been given to her by her brother some time earlier because her brother knew she was trying to find someone her husband might approve of taking the child to.

25 Dr Duflou, forensic pathologist, carried out the post mortem and concluded that the child had died of malnutrition. At the time of autopsy she weighed 5.44 kg, about 55% of what her weight should have been. It was his opinion that it would have taken a number of months for her to have become that thin, and her condition was treatable.

26 Dr Barry King, a forensic dentist, gave evidence that while the deceased’s teeth had followed a normal path of ruption and were consistent with her age, they were deteriorated possibly from demand breast feeding, and feeding for prolonged periods of time.

27 It was the Crown case that the appellant was guilty of manslaughter of the deceased child by reason of her gross (criminal) negligence. The Crown alleged that she breached her duty of care to the child by a combination of acts and omissions, particularly failing to take the child to hospital when advised by Dr Webster that it needed urgent medical treatment, removing the child from New South Wales and the jurisdiction of DOCS who insisted that she be medically examined, failing to have regard to Dr Webster’s advice that alternate treatment, such as from a naturopath, was not acceptable, not affording the child proper treatment when she got to Queensland by taking her to a hospital there, and when she knew the child was dying, even then omitting to take her to hospital.

28 The appellant gave evidence that since she became pregnant with their first child in 1989, Mr O’Brien had become controlling, irritable, verbally abusive and physically violent. He verbally belittled her on occasions when they lived at Woolgoolga, he pushed her against a wall holding onto her throat in front of his daughter Narina, on another occasion he punched her in the back of the head because she took too long to get out of the car, on other occasions hit her with a broom or kicked her on the ground, and once held an axe to her nose until it bled.

29 She said that when the deceased became ill she tried to reason with her husband but he would not allow her to seek help and she did not take the deceased to hospital herself out of fear. She said that after seeing Dr Webster she told her husband that if they did not take the deceased to hospital then DOCS would take her from them in the hope that this would convince him to take her to hospital, but he was insistent that the child not go to hospital, and that was why they went to Queensland.

30 After her arrest DOCS had become involved with her and the children and so at the end of March 2000 she felt able to leave, because she then had their protection and assistance, whereas previously she was afraid to leave because he told her that, although she could go, she could not take the children and he hardly ever let her out of his sight. She also said that on occasions over the previous years Peter O’Brien had threatened to kill her if she left him and took the children with her. Her evidence was consistent with her second recorded interview.

31 The other evidence called in the defence case was that of Dr Olaf Nielssen, forensic psychiatrist. He did not find the appellant suffered any kind of psychiatric disorder but his opinion was that her situation fitted what is called the “battered wife syndrome” which is a state in which women who are subjected to severe abuse, particularly within a domestic relationship, form a kind of helplessness and inability to initiate action to leave that situation. He thought that her responses around the time of the baby’s illness were characteristic of the kind of behaviour one would expect to see in a person with battered wife syndrome in that she accepted the decisions made by her husband despite having reservations about them. She was under her husband’s control.

32 There was no issue in the trial that the appellant had failed to take proper steps for the welfare of the child, that her failure to do so had materially contributed to the child’s death and that such failure amounted to gross negligence. The only issue fought at the trial was the question of duress, that is, whether the Crown had negatived the suggestion that at the time she failed to take those steps she was acting under duress induced by fear of her husband.

33 In summing-up, his Honour gave general directions concerning the functions of the jury, their responsibilities and the onus of proof, and then turned to the elements of the crime of manslaughter (SU 7), which he explained (SU 7-11) and then he summarised the evidence relating to those elements, in particular of failure to take the child to hospital or provide proper medical treatment for her (SU 12-19).

34 He then (SU 20-24) gave appropriate directions on the law relating to duress referring to the objective and subjective elements of the test and how the Crown could negative duress and explained to the jury that they had to have regard to the effect of the threats at the time of the acts giving rise to the offence and this raised the issue whether the appellant had a reasonable opportunity of withdrawing from the scene or otherwise rendering the threats ineffective.

35 Following this, after a dissertation on the assessment of witnesses, his Honour went on (SU 27-37) to summarise the appellant’s evidence in relation to that issue, particularly the way she had been treated over the years by Mr O’Brien which she said led her to fail to act in the manner she did and the reasons why she did not take opportunities that were apparently open to her to leave the relationship and seek hospital treatment for the deceased, and then he summarised parts of Dr Nielssen’s evidence (SU 37-38). At SU 40 he briefly summarised the submissions of counsel as follows:

“The Crown say to you, look, those first lots of elements we have proved to you beyond reasonable doubt. And they say to you that you will not be satisfied about the duress, we have negatived that, because in short there were a number of different things she could have done to get help for her baby.

On the other hand, it is said to you that it is just not so and you could not be satisfied of that, and that when you look at all the evidence you will see how she was under the domination of Mr O’Brien, that is how she acted, that is why she acted that way. There is clear duress here. I am not summing up everything they said to you. They went into it in great detail, but they are matters that you have got to consider.”

36 No applications were made at the end of his Honour’s summing-up for further directions.

37 Shortly after the jury had retired his Honour realised that he failed to direct the jury that the appellant’s good character could be taken into account on the question of credibility as well as on the question of guilt, and indicated he would recall the jury to give that direction, and in the mean time he had received a question from the jury inquiring as to the time frame within which they should consider the appellant’s actions.

38 After discussion with counsel his Honour recalled the jury to court and, after giving them the further direction on good character, answered their question as follows (SU 45-6):

“It is argued on behalf of the accused that as a result of the cumulative effects of Peter O’Brien’s conduct since 1993, and continuing up until the death of Laali, which results in the evidence you heard from Dr Nielssen today, what is known as the “battered wife syndrome”. As a result of that it is argued she was unable to withdraw.

The Crown argues that she had a number of opportunities to withdraw after the visit of Mr Lewandowski and the police up to the date of the death of Laali and argues that there is no evidence of actual physical violence after the visit to Dr Webster from that time up until the death of Laali. I hope that answers your question.”

39 The first ground of appeal which related to an application to adduce fresh evidence related to the “battered wives syndrome” was not pressed.

40 The second, third and fourth grounds of appeal may be conveniently dealt with together. They were as follows:

2. The trial judge failed to direct the jury that the evidence of battered wives syndrome was relevant to the defence of duress.
3. The trial judge failed to direct the jury as to how the evidence of battered wives syndrome might apply to their determination of whether the Crown had negatived duress.
4. The trial judge’s summing-up on the evidence of battered wives syndrome was inadequate .

41 As already noted, his Honour directed the jury on the nature of duress, and then explained how the Crown could negative duress either by showing that the appellant was not acting (or failing to act) as she did by reason of a threat, expressed or implied, of death or reasonably serious physical harm (the subjective test), or by showing that her actions or lack of action was not the response of a hypothetical person of ordinary firmness of mind and will, of the same sex and maturity as the appellant and in the circumstances in which she found herself (the objective test).

42 The main ground of complaint about the summing-up, as I understand it, is that his Honour did not, after describing the subjective test, summarise those parts of Dr Nielssen's evidence which were relevant to the subjective test, and then after describing the objective test direct their attention to those parts of Dr Nielssen’s evidence which were relevant to that test and how the hypothetical person in the same circumstances, i.e. a battered wife, would have acted as to withdrawing from the relationship etc. The submission was that Dr Nielssen’s evidence should not have simply been summarised in globo as it were, but that his evidence about the battered wife syndrome should have been expressly and separately related to each of the tests by which the Crown could negative the defence of duress.

43 Although it is undoubtedly the duty of a trial judge in summing up to relate the different pieces of evidence to the different issues in the trial: R v Zorad (1990) 19 NSWLR 91 at 105, this was a “single issue” trial and that single issue was duress. The evidence of Dr Nielssen about the battered wife syndrome was relevant to both the subjective and objective tests and there was no need to divide it up in a way which had not been suggested by either counsel in their addresses: Osland v The Queen [1998] HCA 75, 197 CLR 316 at [59] – [60].

44 This was so particularly when the extracts of Dr Nielssen's evidence which were quoted to the jury (at SU 37) clearly went to both the subjective test and the objective test: cf R v Runjanjic (1991) 56 SASR 114 at 120.

45 It was apparent to the jury that Dr Neilssen’s evidence about the battered wife syndrome and its effect on the appellant went to the issue of duress; and to try and divide it up into sub-issues as suggested by the appellant’s submissions would, in my view, have only tended to confuse the jury, If anything further were needed to draw the jury’s attention to the battered wife syndrome and its relevance to the defence of duress, which I doubt, it was to be found in his Honour’s brief summary of the defence argument at SU 40 and in his answer to the jury’s question at SU 45, where express reference was made to Dr Nielssen’s evidence, the battered wife syndrome and the appellant’s capacity or otherwise to withdraw from the relationship.

46 The further objection to the summing-up in relation to Dr Nielssen’s evidence is that although parts of it were quoted to the jury, no reference was made to a number of specified questions and answers.

47 A trial judge is not required to read or summarise the whole of the relevant evidence to the jury which has already heard it all from the witnesses, but merely to present a balanced summary of the salient parts which is fair to both sides: Domican v The Queen (1992) 173 CLR 555 at 560-561. If counsel at the trial considers that an important part of the evidence has not been drawn to the jury’s attention, he can and should draw it to the judge’s attention. If he or she does not do so Rule 4 applies, one of the objects of which is to prevent mistrials on account of matters which could have easily been cured at the trial: R v Button & Griffen [2002] NSWCCA 159, 129 A Crim R 342 at [34]-[35] quoting Mahoney JA in R v Jeffrey (unreported - CCA - 16 December 1993) at 6-7, and McHugh J in Papakosmas v The Queen [1999] HCA 37, 196 CLR 297 at [72].

48 The evidence of Dr Nielssen, although important, was comparatively short, and in my opinion was sufficiently and fairly summarised by the trial judge. Some of the questions and answers not repeated in the summing-up were merely elaboration of general propositions of the doctor which had been summarised, and one answer in particular at T 172 L 25 which it is claimed should not have been omitted had been substantially paraphrased by the appellant’s trial counsel in his final address (T 182 L 23).

49 It is true that his Honour, apart from summarising Dr Nielssen’s evidence on the nature and possible effect of the battered wife syndrome focussed his evidence on the capacity of the appellant to withdraw from the situation; but this had been the emphasis given to the doctor’s evidence in Defence Counsel’s final address in response to the Crown’s submission that, being an intelligent, articulate person, the appellant had a number of opportunities to extricate herself from her situation and obtain treatment for the child.

50 Grounds 2, 3 and 4 have not been made out.

51 Ground 5 was “The trial judge failed to direct the jury on the lies told by the accused in her first record of interview with police following her arrest.”

52 In her second recorded interview, the appellant admitted that she lied to police in her first interview and said that it was because she was under the influence and domination of her husband, who had told her what to say in the interview. The fact that the appellant told the police deliberate lies was the first issue the Crown addressed to the appellant in cross-examination in seeking to undermine her evidence that her husband had threatened to kill her, and in his final address the Crown submitted to the jury that by her own admission she was a woman capable of telling lies (T 177). His Honour referred to the fact that she admitted telling the police lies and said she had done so under her husband’s influence and that fact was something the jury should “weigh-up” when considering her evidence (SU 26 and 33).

53 It was submitted that in these circumstances there was a risk of the jury misunderstanding the significance of the appellant’s lies, and a direction should have been given as suggested in Zoneff v The Queen [2000] HCA 28, 200 CLR 234 at [23] to the effect that the telling of lies went only to the issue of the appellant’s credibility, and the fact that she told lies could not be used by the jury as evidence of her guilt of the offence charged.

54 Although the appellant had given evidence in chief, repeating what she had said in her second recorded interview, of Peter O’Brien’s domination and physical emotional abuse of her over the years, including a number of assaults, it was only in cross-examination that she claimed he had ever threatened to kill her; and although Dr Nielssen found her articulate and out-going when he interviewed her, he had no note of her ever claiming there had been a threat to kill her, from which he inferred that no such complaint had been made to him.

55 It was in this context and in the overall context of her claim that she was dominated, influenced and generally threatened and physically abused by her husband, that the Crown made the submission to the jury that, based on her first recorded interview, she was a person who was capable of lying. It was never suggested by the Crown Prosecutor or by his Honour that the fact that she had lied in her first recorded interview could be used as evidence of guilt, or that it went to any issue other than her credibility as a witness.

56 In those circumstances I see no risk that the jury could have misused the evidence, and neither apparently did defence counsel at the time, as no further direction was sought. Accordingly I do not see that there was any need for the direction which it is now submitted should have been given. This ground of appeal is not made out.

57 Ground 6 was “The trial judge’s direction under s 165 of the Evidence Act concerning the evidence of Mrs Brassard was inadequate”.

58 Ms Brassard gave evidence that when she first saw the appellant and the child late on Sunday 30 January and observed that the child was obviously ill, she asked the appellant why she did not want to go to hospital and told her that she would go with her to Southport Hospital, the closest hospital about 45 minutes away by car, as she knew people there and that the Hospital would investigate and rehydrate the baby. When the appellant explained she did not wish to go to hospital, Ms Brassard claimed she said, “We will try for two days and if that doesn’t work would you promise me that we will go to hospital?” (T 61)

59 She saw the child again and said she spoke with the appellant about taking the deceased to hospital on Tuesday, 1 February, but again the appellant said “no”. She saw the appellant and the deceased again on Tuesday, 8 February at about 1pm when the child was yellow and her breathing was very short and she told the appellant, “She’s on her way out. She’s dying. There’s nothing more we can do” (T 72), and she also said, “It could still be time to go to hospital for you if you don’t want to get in trouble” (T 73).

60 In cross-examination she agreed that on 30 January (Sunday) she said she would persist in the treatment for two days and if that didn’t work the appellant would have to promise to take the child to hospital, and she thought it was on the Tuesday (1 February) that she said she would assist by driving them to the hospital.

61 She agreed that nowhere in her statement made on 13 February did she make reference to wanting the appellant to promise that if treatment was not successful in two days she would go to hospital, and similarly the suggestion of going to hospital, on 1 February was not mentioned in any of her statements (T 70). She agreed that the first time she had told anyone that she volunteered to take the appellant to hospital was on the morning of the trial in a conference with the Crown Prosecutor.

62 The appellant in her cross-examination denied that the question of taking the child to hospital had been discussed on 30 January but said it was raised by Ms Brassard on the Tuesday 1 February at Bronwyn Mele’s house, when she asked whether the appellant would like to have the child tested at hospital but did not offer to drive her. The next mention of hospital was on 8 February when she said, “Do you want to go to hospital, it’s too late” (T 157).

63 In summing-up his Honour said (SU 39):

“There is the evidence given by Ms Brassard that she offered to take the accused to hospital. That is hotly contested, and it is hotly contested because you will recall that she was asked about when she first told anyone about that evidence, she having given statements to police way back when this first occurred, and she agreed that that did not appear in any statement.

It was put to her the first time she ever said that was either on the morning she gave evidence or in the witness box, and I think in the end there was not much doubt about it.

I have got to say to you that that sort of evidence, that part of the evidence, that sort of evidence, may well be unreliable because it is evidence, you may very well have expected, of such importance that she would have put it in one of her statements and told the police about it at an earlier time, and so you should treat it on that basis.”

64 It was submitted that this warning was insufficient to comply with the requirements of the Evidence Act 1995, s 165(2)(b)&(c) in that, whilst his Honour correctly pointed to the fact that the witness had not told police in her earlier statements that she offered to drive the appellant and the child to the hospital, he should have informed the jury that a possible reason for the alleged “recent invention” may have been a desire on her part to shift all responsibility for the child’s death to the appellant and to deflect it from herself as a person who was treating the child; and furthermore, that his Honour failed to warn the jury of the need for “caution” in determining whether to accept the evidence and the weight to be given to it.

65 There was a request from defence counsel for a warning under the section in relation to Ms Brassard’s evidence (T 94) because her offer to take the child to hospital was not included in any of her statements, and also on the ground that she may have been seeking to protect herself, being an unregistered naturopath practising in Queensland. Immediately before the summing-up there was further discussion about the proposed warning (T 188), but the substance of the discussion is not recorded.

66 The suggestion that the jury should have been warned that the witness may have fabricated this piece of her evidence because of a desire to shift all responsibility for the child’s death to the appellant and thus deflect it from herself as a person who was treating the child though unregistered, was not a suggestion that was made to the jury in defence counsel’s closing address, and indeed could not have been put to the jury in that form because such motivation for fabricating the evidence had not been put to the witness in cross-examination.

67 Although there was not a strict compliance with s 165(2) his Honour warned the jury that it may be “unreliable” and told them one reason why it might be unreliable. He did not expressly use the word “caution”, but told them that they should “treat it on that basis”. In my view in the circumstances of this case that was a sufficient warning and in the context would have conveyed to the jury the need for caution in accepting such evidence.

68 In any event, whether or not the witness had offered to drive the appellant to the hospital was not a major issue in the trial. The appellant had made it perfectly clear to Ms Brassard and also to Mrs Mele that she was not prepared to take the child to hospital, and the non-availability of transport to get to the hospital was not suggested by her as a reason for not doing so.

69 No objection was taken at the trial and accordingly Rule 4 applies. Insofar as there was any deficiency in his Honour’s warning it was minor, and not such as could have led to a miscarriage of justice.

70 Ground 6, like the other grounds of appeal, is not made out and the appeal against conviction should be dismissed.

71 In sentencing the appellant, after reviewing the facts of the matter and noting that the jury had excluded duress, his Honour concluded that she did suffer the “battered woman syndrome” but that she knew the child was very ill, her condition was deteriorating and that she needed medical and hospital treatment, but she failed to act on that advice, that she assisted her husband in leaving the State and the jurisdiction of DOCS by agreeing to take the child to Ms Brassard against the advice of Dr Webster, that whilst she was in Queensland she had the opportunity to seek assistance, including hospital assistance, but failed to do so, and that she was responsible for her child’s death, although she was to a degree under the domination of her husband. His Honour also took into account the fact that she had agreed to give evidence against Mr O’Brien in his coming trial and that, having regard to the nature of the offence, there was the possibility that she might serve her sentence on protection.

72 Having regard to these and other relevant matters his Honour found that special circumstances existed and imposed a sentence of imprisonment for 5 years with a non-parole period of 2 years, indicating that on account of her offer for assistance he had reduced the sentence by approximately 30%, that is from 7 years to 5 years.

73 It is submitted that his Honour erred in sentencing in two respects. Firstly, it was submitted that the discount for her assistance to the authorities by providing information and offering to give evidence against her husband should have been greater than 30%; and secondly, that fresh evidence was available to show that there was not only the possibility of her spending her sentence on protection, but that she is in fact spending her sentence on protection as a result of accepting the advice of her counsel to seek protection, which advice was given after his Honour had sentenced her.

74 I am not persuaded by either of these submissions. A discount of 30% for assistance to the authorities is a reasonably generous discount, and it is necessary to bear in mind the provisions of s 23(3) of the Crimes (Sentencing Procedure) Act 1999, which provides that in relation to the reduction of penalties for assistance, the lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence. This was a very serious offence. The appellant allowed her 14 months old, helpless and defenceless child to die. She was the child’s mother, the person from whom above all others, the child was entitled to expect nurture, care, sustenance and protection, and she failed the child in her most important duty, with fatal results. I cannot see how a sentence of any less than that imposed by his Honour could be regarded as reasonably proportionate to the nature and circumstances of the offence.

75 The evidence which was tendered as fresh evidence on sentence, was to the effect that after the applicant had been sentenced, her counsel advised her to apply to go on protection, that she accepted his advice and was placed on protection. This evidence however all related to matters that occurred after sentencing. His Honour adverted to the possibility that she may serve the sentence on protection, but her acceptance of her counsel’s advice and the giving of that advice only arose after the sentencing was complete.

76 It was therefore not evidence which could have been placed before his Honour if it had been known, as it related to matters which at that stage had not occurred. In any event, his Honour took into account the possibility that she may serve the sentence on protection, and that possibility later became a reality.

77 For these reasons I would grant leave to appeal against sentence but dismiss the appeal.

78 I propose the following orders.

1. Appeal against conviction dismissed.
2. Grant leave to appeal against sentence.
3. Appeal against sentence dismissed.
4. Conviction and sentence confirmed.

79 SMART AJ: I agree with Dunford J.

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Last Modified: 05/07/2003