R v Powell - [2014] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v POWELL
Criminal Trial by Judge Alone
[2014] SASC 127
Reasons for the Verdict of The Honourable Justice David
5 September 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE
Trial by Judge alone - murder - death of child due to inflicted brain injury - accused and partner only two people with access to the deceased at relevant time - where both accused and partner have told series of lies to police and others - unreliable witnesses - reasonable hypothesis consistent with innocence - verdict of not guilty.
Criminal Law Consolidation Act 1935 (SA) s 11, referred to.

R v POWELL
[2014] SASC 127
Criminal

DAVID J: The accused, Brock Michael Powell, is charged with murder. I set out the Information in full:
Information of the Director of Public Prosecutions
BROCK MICHAEL POWELL
is charged with the following Offence
Statement of Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brock Michael Powell on the 14^th day of January 2012 at Melrose Park, murdered Brendan-Junior Nathan Williams.
The Crown allegations are that in the early hours of the morning of 14 January 2012, the accused murdered the deceased who was the son of his partner at the time, Latara Hunt.
The accused was tried and convicted on a previous occasion in a trial by Judge alone. He appealed to the Court of Criminal Appeal. The conviction was overturned. The matter now comes before me by way of retrial. His election for trial by Judge alone stands.
I indicate that, in hearing this matter, I have read neither the original Reasons for Verdict, nor the decision of the Court of Criminal Appeal.
Overview
The deceased, as I have indicated, was the son of Latara Hunt. At the time of his death, he was two years old. The accused was her partner at the time. The father of the deceased was Brendan Williams. By an arrangement between the parties, the deceased would spend three days with Brendan Williams and his partner at the time, Jessica Schutt, and three days with Latara Hunt.
Latara Hunt lived in a granny flat adjacent to a house on Winston Avenue, Melrose Park, in which her mother, Karen Hunt, her mother’s partner at the time, Christian Edwards, her brother, Michael Turrell, and her daughter, Destiny, by another relationship, all lived. She lived in the granny flat with the accused and, when she had custody of him, the deceased.
In brief, on the night of Friday 13 January 2012, the deceased spent the night at the Winston Avenue address, having been dropped off that morning by the deceased’s father and Jessica Schutt. In the evening, the accused and Latara Hunt went with a friend to a nearby hotel whilst the deceased was in the main house being looked after by his grandmother, Karen Hunt. On returning, the deceased was moved back into the granny flat by the accused and on an occasion during the evening, to which I will refer later, Latara Hunt spent time in the main house. It was undisputed evidence that the accused, in the early hours of the morning of 14 January 2012, came into the main house saying that the deceased was in a bad way. The deceased was eventually taken to the nearby Flinders Medical Centre and observed to be in a critical condition. He was subsequently taken to the Women’s and Children’s Hospital and put on life support, which was removed on 15 January 2012.
The cause of death was ascertained as blunt cranio-cerebral trauma. Medical experts called at the trial gave evidence that he suffered a left frontal subdural and subarachnoid haemorrhage and he had a contusion to the left pole of his brain. There were other injuries on other parts of his body, which I will detail later in these reasons.
It was the Crown case presented at trial that these injuries were inflicted by deliberate trauma, and that the accused was the person who inflicted them.
I will return to the facts in more detail.
I now turn to matters of law.
Directions of law
Elements
I direct myself that, for the accused to be guilty of murder, the following elements have to be proved beyond reasonable doubt:
1 That the acts of the accused caused the death of the deceased.
2That those acts were conscious and voluntary, that is to say that they were the result of the exercise of the accused’s will; they were not the result of an accident.
3That the act or acts of the accused which caused the death of the deceased were carried out with the intention of killing the deceased, or at least causing grievous bodily harm. By the term “grievous bodily harm”, I mean really serious bodily harm. The intention necessary for the crime of murder must exist at the time when the act or acts which caused the death were carried out.
4The killing was without any lawful justification or excuse.
I also direct myself that, if the act or acts which caused the death of the deceased were caused by the accused, but it has not been proved beyond reasonable doubt that those acts were inflicted with the intention to cause grievous bodily harm, then a verdict of manslaughter could be returned, if the following elements are proved beyond reasonable doubt:
1 The accused killed the deceased.
2 That the act or acts causing the death of the deceased were unlawful.
3That the act or acts causing the death of the deceased were dangerous. An act is dangerous for this purpose if a reasonable person, in the position of the accused, would have realised those actions would expose the deceased to appreciable risk of serious harm.
Onus of proof
When considering all of the issues that have arisen for determination in this matter, I have borne in mind that the accused does not have to prove his innocence. He is presumed to be innocent of the charge against him until I am satisfied of his guilt beyond reasonable doubt. The requirement of proof beyond reasonable doubt applies to each and every element of the charge.
Of course, it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. The accused does not have to prove anything. It is not sufficient for the prosecution to show that the accused is probably guilty. To be convicted, nothing short of proof beyond reasonable doubt will suffice.
Where, throughout these reasons, I indicate that I find a matter proved, that means that I have found so beyond reasonable doubt.
Lies
In this case, there is undisputed evidence that, at the previous trial, the accused lied to the police when he said he was in the presence of Latara Hunt when he discovered the deceased between the trundle bed and the cupboard. Any lies told by the accused in this matter at the previous trial, or to witnesses before the trial started, cannot be used as positive evidence of the charge against him showing a consciousness of guilt. The Crown concedes as such. Any proven lies are relevant only to findings of credit when assessing his evidence on oath from the previous trial.
Similarly, and as will be discussed in these reasons, it became apparent that other witnesses had told lies at various stages. In particular, and most critically, Latara Hunt told lies to hospital staff and to the police as to her observations on the night in question. Again, any proven lies go to credit and, in the case of Latara Hunt, have caused me to scrutinise her evidence with particular care.
Evidence given at previous trial
I also direct myself that the evidence given on oath in the previous trial is admissible at this trial. It has, in fact, been tendered as an exhibit. I direct myself that such evidence can be used both for and against the accused. I take into account the fact that that evidence was given in the knowledge that he would be cross-examined on it and, in fact, this account was tested by cross‑examination, which I have carefully read. However, I do have the disadvantage of not being able to see the accused give evidence and assess him accordingly. Nevertheless, the evidence which was given on oath, and which was subject to cross-examination, is material which I can take into account.
Accused does not give evidence
I also direct myself to the fact that the accused has not given evidence in this trial. That is a right that he has, and no adverse inference can be drawn from that fact.
Circumstantial case
The case presented by the prosecution to prove that the accused committed this offence is based on circumstantial evidence. There is no eye witness to the fact that he assaulted the deceased. I direct myself that, in order to find the accused guilty on a case based on circumstantial evidence, I must exclude beyond reasonable doubt any hypothesis consistent with innocence from the accumulation of the circumstances which I find to have been proved. If I reject the account given by the accused, that does not relieve me of the responsibility of finding the case proved beyond reasonable doubt. In other words, any rejection of the accused’s evidence is not positive proof to advance the prosecution case.
Expert witnesses
I also direct myself in relation to witnesses called who would be classified as expert witnesses. They are Professor Roger Byard, Dr Janine Tee and Dr Michael Yung. Also, statements were tendered by consent from Professor Jason White and Pamela Fietz. A number of agreed facts that encompass the evidence of an engineer, Dr Lei Chen, were also tendered. I direct myself in the usual terms that such evidence is for my assistance, that expert witnesses are not the deciders of fact, but their evidence must be placed alongside the other evidence called at the trial.
As will be revealed when dealing with the facts in more detail, the accused and Latara Hunt had been both drinking and ingesting drugs on the evening before the deceased’s death. The ingestion of drugs and intoxication due to alcohol can be relevant as to whether the accused, if he did assault the deceased, had the intention to cause grievous bodily harm. Intoxication may also be relevant by way of explanation as to why certain events occurred. I hasten to add that, in this case on the evidence before me and, in particular, that of Professor White, intoxication would play no part in considering the specific intention of the accused, if I found that it had been proved beyond reasonable doubt that the accused, in fact, inflicted the blows upon the deceased which caused his death.
Evidence of good character
At both this trial and the previous trial, evidence was led as to the good character of the accused. It was led at the previous trial that, except for one small incident involving graffiti when he was young, the accused has no previous criminal record. Also, I received evidence from the first trial attesting to his good character (Exhibits D54 and D55).
More specifically, witnesses in the trial before me attested to the fact that the accused had a good relationship with the deceased, was never violent towards him and never played any part in his discipline. That being so, I have regard to the fact that such good character, especially in regards to his relationship with the deceased, is important when considering the likelihood of him having committed this offence. It is also relevant to his credibility; namely, that his evidence at the previous trial has come from a person of previous good character.
Evidence of Latara Hunt
Finally, I direct myself that, in relation to the evidence of Latara Hunt, I must scrutinise that evidence with care. That is so for the reasons already discussed, but also because, as the case has been presented and defended, it is open to find that, in some way, she may have been responsible for the death of the deceased. Whether that is a possibility is a matter I have to decide. I do not put her in the category of an accomplice, or any special category of a suspect witness. However, looking at the evidence as a whole, it is important that I scrutinise her evidence with care, and I do so.
I now turn to the evidence in more detail.
Evidence
I turn, first, to the evidence of Mr McKenzie, a police officer, who arrived at the Winston Avenue premises with forensic members of the police force at 8.47 am and examined the granny flat. The premises had been secured and untouched since 6.20 am. I heard detailed evidence of Mr McKenzie’s observations of the granny flat, especially the position of the bed used by the accused and Latara Hunt, and the trundle bed and mattress next to it used by the deceased, and the wardrobe next to that trundle bed. The positions, as observed by Mr McKenzie, were reconstructed in Court and a photograph was taken of that reconstruction (Exhibit P52). Also, I received a number of photographs as to the setup of the granny flat when he arrived.
When Mr McKenzie saw the trundle bed, the mattress upon it was offset so that a portion of that mattress was overhanging in a space between the trundle bed and the wardrobe. If the mattress had been properly fitted on to the trundle bed, there was a definite space between the trundle bed and the wardrobe but, when observed by Mr McKenzie, that space was occupied largely by the overhanging mattress.
Mr McKenzie also gave evidence of the various measurements as to the height of the trundle bed from the floor and the distance of the trundle bed from the wardrobe. These were reduced to a diagram and tendered in evidence (Exhibit P11).
Mr McKenzie also gave evidence that, if the mattress was placed upon the trundle bed, it could not be fitted under the main bed when not in use. However, the trundle bed without the mattress could be so fitted. He observed a number of other items. In particular, and of relevance, there was an up-turned child’s chair on the trundle bed. There were some scissors and a phone charger on the main bed, and also a Ventolin canister with a spacer attached. There was also an ice pack used to cool items.
During the course of his examination of the granny flat, Mr McKenzie spoke to the accused, who had subsequently arrived at the Winston Avenue premises. He had the following conversation with the accused:
QThe whole conversation, start from the beginning.
AReferring to the notes, he said that the child was facedown between the wardrobe and the eastern edge of the makeshift bed. The gap, the current gap at the time we were examining the bed was about 2 inches smaller than he remembers, because he had moved it after he had removed the child. The child’s arms were bent and legs were straight. Then the mattress was hinged and bent on the right side. Then he told me that the bed base had been originally hard up against the wardrobe, but it had been moved when the cupboard was moved from the south end of the mattress and the bed base was not put back at that time. The plastic seat, the red seat that was on top of the mattress had been moved onto the bed after the child had been removed.
QThat’s as you remember the conversation.
AYes.
XN
QI want now to go back and ask whether you recall any further detail, other than what’s recorded in your notes.
MS TELFER: Is that permissible?
HIS HONOUR: Yes, of course.
XN
QYou told us that you recall that he said that the correct gap is about 2 inches smaller, he remembers that because he moved it after getting the child out. Did he indicate in any way what direction he moved it in.
AYes, I clarified – he’d said it had been moved closer to the wardrobe. I just clarified the direction by actually saying ‘That way?” and pointed to the east and he acknowledged that that was the direction.
QHow did he acknowledge that.
AI think he said ‘Yes’, or nodded his head, I can’t be sure.
QYou said that he said the child’s arms were bent and his legs were straight. Did he say anything about in what direction the child’s arms were bent.
AYes, above his head.
QYou said that he said that the mattress was hinged or bent on the right side. The term ‘the right side’, is that your words or his words.
AI can’t recall whether he said that. He was facing in a different direction to how I was facing the bed at the time I was asking the questions.
QWhich side of the mattress, as far as you recall, was he saying was hinged or bent.
AThe side that’s on the side of the wardrobe.
QDid he indicate anything with his hands in respect to hinged or bent.
AI demonstrated, I went up to the side of the mattress and pushed it down to show that effect and he pointed in the area near the wardrobe.
QThe word ‘hinged’, whose word was that.
AI believe it was his.
QFinally, you said that he said that the plastic seat had been moved onto the bed after the child was removed. Did he say who had moved it onto the bed.
AI can’t remember.
The father of the deceased, Brendan Williams, and his then partner, Jessica Schutt, and his mother (and grandmother of the deceased), Joanne Bilston, were called. Their evidence can be summarised briefly and was to the effect that the care arrangements for the deceased were three days on and three days off. That is, he would spend three days in the care of his father, followed by three days in the care of his mother. There appeared to be no formal order to this effect from the Family Court, but was an arrangement between all concerned. Often, the deceased stayed at the premises of his paternal grandmother, Joanne Bilston. I find that the relationship between the deceased and his father, grandmother and father’s partner was loving and caring.
On the morning of Friday 13 January 2012, Brendan Williams and Jessica Schutt picked up the deceased from Joanne Bilston’s house, he having stayed the night there, and delivered him to Latara Hunt, pursuant to their arrangement. Latara Hunt took the deceased into her custody at the front of the house on Winston Avenue. Their observations were that, as he was handed over on that occasion, he was in good health.
I turn to the events of the evening of 13 January 2012.
Kiarra Bell was a next-door neighbour of Latara Hunt. She gave evidence that she had spent the afternoon with Latara Hunt, Destiny and the deceased at her house. She described the deceased as appearing to be in good health and noticed no injuries upon him. She also gave evidence of an arrangement for she, Latara Hunt and the accused to go to a hotel, called the Victoria Hotel, which was approximately a 15 minute journey by bus. She gave evidence that she went to the granny flat and, whilst there and before leaving, both Latara Hunt and the accused smoked methylamphetamine and marijuana. She gave evidence that the ice pack observed by Mr McKenzie was not visible to her in the granny flat. She described putting on makeup in the bathroom of the main house with Latara Hunt, and being watched while doing so by Destiny and the deceased. Eventually, Latara Hunt, the accused and Kiarra Bell caught a 10.55 pm bus to go to the Victoria Hotel.
They were also drinking. She and Latara Hunt were drinking vodka. The accused was drinking bourbon.
Eventually, when they arrived at the hotel, they went their own way, but Latara Hunt had arranged for them to be brought back home by a friend, Jason St Claire O’Connor. Kiarra Bell said that they left the hotel at about 1.30 am. They waited outside in the carpark and noticed an argument with some other people. Eventually, they were given a lift by Jason St Claire O’Connor. She gave evidence that all of them appeared to be a little affected by alcohol. She said they arrived back Winston Avenue at about 2.00 am and, at about the same time, three other people arrived in a taxi. It was established in evidence that these three people were Latara Hunt’s brother, Michael Turrell, and two of his friends, Joshua Kelly and Karim Kamara.

Jason St Claire O’Connor estimated that the time of arrival back at the granny flat was around about 2.30 am to 2.35 am. He also gave evidence that, when bringing the accused and Latara back, the accused was a “bit tipsy” and, on a scale of zero to 10 on the scale of alcohol was concerned, was in the region of four. He also noticed that, when he dropped them off, Latara Hunt’s brother and two friends arrived at the same time.
Kiarra Bell gave evidence that, upon arriving back at Winston Avenue, she went inside the granny flat for about five minutes, picked up a phone charger which she had left there, and then went home.
Next morning, Kiarra Bell had a conversation with the accused. It is apparent that the conversation took place after everyone had returned from the hospital. She said that the accused told her that he and Latara were in bed and they heard a noise. Latara asked him to check on the deceased. He said he leaned over to feel where the deceased was and could not feel him. That is when he saw the deceased facedown between the bed and the wardrobe. She said that, during that conversation, the accused also said that the deceased was gurgling and “kind of coughing up blood”. He also said he heard a kind of groaning sound. Also, the accused told her that he had given the deceased CPR and then taken him to the Flinders Medical Centre.
I turn to the evidence of Latara Hunt.
She is the mother of the deceased. She is also the mother of Destiny who, as at January 2012, was about five years of age. Destiny is now cared for by her grandmother, Karen Hunt. The accused was Latara Hunt’s former partner. The father of the deceased is Brendan Williams. The father of Destiny is a person with whom she had a previous relationship, namely, Scott Daniels. At the relevant time, Latara Hunt lived with the deceased and the accused in a granny flat at the Winston Avenue property. As I have said, Latara Hunt’s mother and her mother’s then partner, Christian Edwards, and her brother, Michael Turrell, and Destiny lived in the main house.
Latara Hunt gave evidence of the three days on, three days off care arrangements with the deceased. She gave evidence of the events of Friday 13 January 2012.
Latara Hunt’s evidence conflicted in a number of respects with that of Kiarra Bell. The inconsistencies are largely immaterial, and it is not necessary for me to make any findings in respect of them. However, it is noted that Latara Hunt did not agree that she spent much of that afternoon at Kiarra Bell’s house with the deceased and Destiny. Rather, she said that, prior to Kiarra Bell coming to the granny flat that evening, she had that afternoon only spoken with her briefly over the fence. Further, Latara Hunt did not think that Kiarra Bell had put makeup on in her house but had, instead, arrived at the granny flat ready to depart for the Victoria Hotel. As I have said, the inconsistencies are not material to any critical issue that I have to decide. Nevertheless, I have had regard to them when considering the whole of Latara Hunt’s evidence.
Latara Hunt agreed that she caught a bus to the Victoria Hotel with Kiarra Bell and the accused but, her evidence was that she arrived at the hotel at about 9.30 pm to 10.00 pm. The plan was for the deceased to stay in the main house with his grandmother, Karen Hunt, while she was out. She agrees in evidence that she took illicit drugs and had been drinking alcohol whilst in the granny flat before going to the hotel, but was feeling no effects. She said that both she and the accused were using both methylamphetamine and marijuana. She said that she left the hotel with the others at about 1.00 am and arrived home at Winston Avenue at about the same time as her brother and his two friends. She said that her brother and his friends went into the main house but she, Kiarra Bell and the accused went to the granny flat. She said that Kiarra went home soon after arriving back at Winston Avenue.
Latara Hunt gave the following details of what happened next:
1She said she was sitting on the end of the bed and the accused said he was going to the toilet. He then left the granny flat and went inside the main house.
2The accused then came back holding the deceased, who appeared tired and grizzly. The deceased was wearing a T-shirt and nappy.
3She cuddled the deceased and the accused said he was going back to the toilet, back in the main house.
4Whilst the accused was out at the house on that second occasion, she changed the deceased’s nappy and saw no injuries.
5When the accused came back into the granny flat, she was still cuddling the deceased. The accused had been out of the room for about three and a half minutes.
6She handed the deceased to the accused who put him to bed whilst she was present.
7She then gave evidence of the details of an argument she had with the accused, which involved matters of infidelity.
8As a result of that argument she then went inside the main house to watch television and to let the accused calm down. She said she planned to return to the granny flat but, instead, fell asleep on the couch.
9While she was asleep on the couch, the accused woke her up and said that something was wrong with the deceased.
10She followed him into the granny flat and saw the deceased lying on the main bed with the accused trying to give him CPR. She then ran inside and got her mother. She then ran back to the granny flat.
After trying to ring triple 0, the accused and Latara Hunt took the deceased to the Flinders Medical Centre and, whilst there, she heard the accused say to a nurse that he had found the deceased wedged between the bed base and the wardrobe, that he pulled him out and started to give him CPR. She gave evidence that she repeated back to the nurse what the accused had said, indicating she was present. She gave evidence in this Court that she said to the nurse that she had seen the accused had rolled over while in the bed to see where the deceased was and found him near the wardrobe.
I interrupt the narrative of her evidence to make two observations at this stage. Latara Hunt’s statements to the nurse were, of course, not true because her evidence was that she was not present when the accused discovered the deceased, on his account wedged between the bed and the wardrobe. She was, in fact, in the main house. I also note that the prosecutor, when opening the case in referring to her evidence, said the following:
Yes, the accused comes home, goes inside, says BJ has woken up, so brings him from the main house out to the unit. So, we got to the point where the child was resettled to sleep on that trundle bed and according to Latara Hunt the accused sat down on a couch nearby where she was on the bed. They started to watch television and make some small talk and there was then what might be described as some heated discussions – how heated it was will be a matter for the evidence – when the accused began to question Latara Hunt about an allegation that Latara had been sexually involved with someone else. Latara Hunt was unwilling to continue that discussion. She left the unit and went into the main house.
She left the child asleep on the trundle bed in the unit, and according to Latara Hunt between BJ, the child, being brought into the unit and her leaving to go into the lounge room of the main house she hadn’t been alone with that child. Once Latara Hunt went into the main house she lay down in the lounge room, she watched television and she fell asleep.
(Emphasis added.)
I infer from the prosecutor’s opening that the instructions she had, for the purposes of her opening, are different than the evidence given by Latara Hunt and that, contrary to the sequence of events described by the prosecutor when opening, she now says she was alone with the deceased for a period of three and half minutes when the accused went to the toilet, during which time she changed the deceased’s nappy.
I continue with the summary of her evidence.
Latara Hunt gave further evidence that, after the death of the deceased, she remained in the relationship with the accused until he was arrested on 10 March 2012. They both lived at the granny flat for a period of time and then moved to a new house. She said that, during that period of time, the accused did not say anything different or additional to what he had told a number of people, both at the hospital and elsewhere, about finding the deceased in the gap between the trundle bed and the wardrobe.
She gave further evidence that a phone charger that was found on the main bed by Mr McKenzie was not there when she went to go into the main house that morning after arguing with the accused. It was, according to her, plugged into a power board behind the couch. Similarly, a pair of scissors which were used for chopping up marijuana and which were found on the bed, were not there when she left, and a pink ice brick, which was observed by Mr McKenzie, was not in that position before they went to the hotel.
She also gave evidence that she liked being a mother, and was a good mother.
In cross-examination, it was established that the trundle bed was, in fact, built for the deceased by the accused. Before that, the deceased was sleeping on a mattress on the floor. It is agreed that the floor was thin carpet over concrete. She also indicated that she did not have enough money to buy a bed or a cot. Such an assertion seems to be contradicted by her ability to use illicit drugs and alcohol. It, of course, cuts across her evidence that she liked being a mother. In fact, the squalor I noticed from the tendered photographs of the living conditions of the deceased indicate that she was anything but a good mother.
She also gave an explanation as to why she lied about her being present in the granny flat when the deceased was discovered in the early hours of the morning in the parlous condition he was in. Her explanation was that she did not want to be seen to be a bad mother because of her absence when this event happened. She also agreed that she lied when speaking to the police on 13 February 2012 when she said she had not taken any drugs on that evening. She said she told that lie because she did not think it was necessary for the police to know that fact.
Also, it was put to her in cross-examination that she told the police that, after she had changed the deceased’s nappy, she put him to bed. She accepted that she said to the police, “I changed his bum, I picked him back up, had another biggest cuddle in the world, kissed him on the forehead and tucked him into bed”. She now maintains that it was the accused who put the deceased to bed.
In cross-examination, she denied either striking or pinching the deceased in the genital area or losing her temper with him.
It is also to be noted that, in her evidence, she frankly agreed that there was a good relationship between the accused and the deceased and there was never any suggestion of inappropriate behaviour or violence.
Karen Hunt, the mother of Latara Hunt and the grandmother of the deceased, said that the accused genuinely cared for the deceased, and also that she never saw Latara Hunt be violent with the deceased, although she described her as a poor parent.
I turn now to the evidence of Karen Hunt, the deceased’s maternal grandmother, in more detail.
On Friday 13 January 2012, Karen Hunt went with her partner, Christian Edwards, to a hotel at about 6.00 pm for dinner. Before leaving for dinner, she spent time with the deceased and did not notice anything out of the ordinary with his behaviour. She did not notice any injuries to him. She said that she was excited to see the deceased, as she had not seen him for a few days. Karen Hunt and Christian Edwards came back from the hotel at about 8.00 pm and went into the granny flat to tell Latara Hunt that they were home. She was in the granny flat alone with the accused. The two children were in the main house, apparently unsupervised. At that stage, she then attempted to put both Destiny and the deceased to sleep. After some time, they both went to sleep on couches in the main house. The deceased fell asleep on the yellow couch and Destiny fell asleep on the blue couch. The deceased had a towel for a nappy, which Karen Hunt had put on him because he needed a nappy change and she could not find a spare nappy. This was at about 9.30 pm. She was not sure what time Latara Hunt and the accused had left from the granny flat to go out. She said that Latara Hunt had no role in settling the children down and putting them to bed on that evening.
As events unfolded, Karen Hunt woke up during the night to go to the toilet and, while she was returning, noticed Latara Hunt on the blue couch and then, later in the morning, she was woken by Latara screaming that the deceased was not breathing. After being woken by Latara, Karen Hunt then went to the granny flat with her and saw the accused administering CPR to the deceased. At one stage, she herself gave the deceased CPR and, at that stage, noticed no injuries to his head or face. She said, however, that a little later, as the deceased became paler, she observed a number of small bruises which she had not seen earlier that evening.
Karen Hunt gave evidence that she and her partner and her son, Michael, and his friend, Josh Kelly, eventually arrived at the Flinders Medical Centre. She gave the following evidence of a conversation she had with both Latara Hunt and the accused in the relatives’ room at the hospital. I set out the evidence of that conversation in full:
QWhen you went into the relatives’ room who was in there.
AFrom memory Latara and Brock – no, sorry, I apologise. Latara from memory, Brock was in the bathroom and came in after we arrived in the room.
QAfter Brock came into the room did you ask anything about what had happened.
AImmediately.
QAnd do you recall the words that you used to ask.
A‘What happened?’ basically. Not exact – it’s a long time ago and I was in great shock.
QWho was that question directed towards.
AI don’t think it was directed at either one of them specifically. It was just ‘Someone tell me what happened to my grandson’.
QWho responded.
AFrom memory Latara.
QAnd what was said.
AThat they had heard a noise, that they didn’t necessarily respond at first, they are not sure whether they fell back to sleep, then they heard some sort of noise again, went to check on BJ and found him underneath this wardrobe, or wedged next to the wardrobe.
QWhat else was said after that.
AThat they – or someone took him from underneath or next to the wardrobe and that he was making very unusual –
HIS HONOUR
QNow Latara said that, did she.
AYes, I think it was both of them or she was speaking and he was – if there was something else he seemed to either correct her or add to it I felt.
QWas she doing the bulk of the talking.
AYes.
QAnd saying what you just told us.
AYes. That he was making an unusual gurgling sound and they then proceeded to give him CPR. To be totally honest, to say word for word would be impossible because I was barely – I was struggling to literally not pass out.
XN
QWhat you’ve just told us is the effect, as far as you can recall, of what was said.
AYes.
QYou’ve used to the word ‘they’ in describing that. Is that the term that was used.
AAs in them talking to me?
QYes.
AYes.
HIS HONOUR
QSo the impression you got from the gist of what was said mainly by Latara is that both of them experienced watching the same.
AAt that time but I also think –
QNo, I don’t want you to think. Just a moment please. I’ve got to get it quite clear. When she was speaking to you at that time, and there was some comments being made by him also, the impression you got was that she was speaking of an experience where both were involved; is that right.
AYes, at the time, yes.
XN
QAnd was anything said, as part of that conversation, about how it was that BJ had been accessed. You’ve told us about them being in bed, about a noise being heard, about him being accessed.
ANot in that room but they had told me –
HIS HONOUR: We have got to confine this to this conversation. We will come to the others later on.
XN
AAt that time, no, I don’t know how they removed him, or he did or one of them did.
QAnd who was in the room when these things were being said.
ALatara, Brock, myself, Christian, I don’t know whether Michael and Josh had come into the room at that point but they may well have been in there as well.
In cross-examination, she said that she was told by Latara Hunt, some time after the events of January, that she was, in fact, not in the room when the deceased was discovered. She said she was furious that Latara Hunt had told the police and other people that she was in the room. She said it made both of them look like liars. She then told Latara Hunt she needed to ring the police to tell them the correct story and that, if Latara did not ring the police, she would do it herself. She said in evidence that Latara Hunt did not ring the police to correct the situation, and so she went and did so herself.
Though nothing turns on it, I note that Karen Hunt admitted in cross‑examination to lying to the police about how she and Christian Edwards travelled to dinner on Friday, 13 January 2012. She lied so as not to incriminate herself in respect of a driving offence. This lie does not impact greatly upon her credibility.
Christine Hunt, the grandmother of Latara Hunt, told of a conversation she had with the accused in the presence of others about how he found the deceased. In that conversation, he said that he was awoken by the deceased gurgling and he did not take a lot of notice. He said he again heard the deceased gurgling, realised he was not in bed and so got up to check on him. He then found the deceased caught down the side between the wardrobe and the bed. He said that while this was happening, Latara Hunt was inside the main house because they had an argument and she had gone inside to sleep.
Christian Edwards, the then partner of Karen Hunt, said that he was awoken by Latara Hunt screaming on the morning of 14 January 2012 at about 10 minutes to 5 (he recalled seeing the time on the microwave in the kitchen). He said that when they all entered the granny flat after being summoned by Latara Hunt, he noticed the deceased on the bed and being given CPR by the accused. He also noticed at that time three or four bruises on his left forehead. He had never seen those injuries before. When at the hospital, he gave evidence that the accused did a fair bit of talking in terms of what had happened and said that the deceased had fallen out of bed and was caught in between the cupboard and the bed frame with an arm around his neck, and he was struggling to breathe.
Michael Turrell, the brother of Latara Hunt, gave evidence that he never saw the accused smack the deceased. He said that he had been out with friends on the night of 13 January 2012 and arrived home at 2.30 am. The accused and Latara Hunt arrived at the same time. His two friends who were with him when he arrived home were Joshua Kelly and Karim Kamara. He did not get the impression that the accused and Latara Hunt had been drinking, and he said that they seemed very affectionate towards each other. He said he went to his bedroom when he got home and his two friends came in with him. They sat and played on a PlayStation in his bedroom.
Michael Turrell said he then fell asleep, but the other two boys were still there. The next thing he remembers happening was his mother waking him up and saying that the deceased was not breathing. He did not go into the granny flat, but drove to the Flinders Medical Centre with Josh Kelly, Christian Edwards and his mother, Karen Hunt. Karim Kamara stayed at the house to look after Destiny.

He then gave evidence that, whilst at the hospital, there was a general discussion but, during that discussion, the accused told him the story that he was asleep, that the deceased suffers from night terrors and rolls in bed and that happened, that he did not cry and the accused said he was worried and noticed that the deceased was wedged in a gap between the trundle bed and the wardrobe. He said that the accused then told him that he pulled the deceased out of the gap and started to give him CPR.
Notably, Michael Turrell gave evidence that he had raised with Latara Hunt and the accused concerns he had regarding the deceased’s sleeping arrangements. He had told Latara on a number of occasions that the gap between the deceased’s bed and the wardrobe was dangerous. Latara’s response was to acknowledge his concern, but do nothing about it and then, ultimately, to get angry and tell him to leave her alone.
Joshua Kelly gave evidence that, when he returned to the Winston Avenue house with Karim Kamara and Michael Turrell, he played on Michael Turrell’s PlayStation with Karim whilst Michael went to sleep. At around about 3.30 am, he went to the kitchen to get a glass of water, and he saw the accused with the deceased, who was rubbing his eyes as if he had just woken up. He saw no marks or injuries on the deceased. He then said that Karen Hunt, at a later time, came into the room to tell them what had happened. He then went to the hospital. At one stage, whilst at the hospital, he was moving his car for the accused who he said appeared to be stressed out.
He gave evidence that, during a conversation while at the hospital, the accused told him that, at one stage, he heard a rustling on the other side of the curtain between the deceased’s trundle bed and his bed, and he found that the deceased had fallen off the side of his bed and got stuck between the cupboard and the bed. He then told Joshua Kelly that he had tried to resuscitate the deceased by giving him CPR.
Karim Kamara also gave evidence, which was largely consistent with Michael Turrell and Josh Kelly’s evidence, as to timing. However, when all of the others went to the Flinders Medical Centre, Karim stayed at the Winston Avenue house to keep an eye on Destiny. He recalled that Police arrived at Winston Avenue at around 5.15 in the morning.
The prosecution called a number of people at the hospital who had conversations with Latara Hunt and the accused about what had happened.
Amy Falanga was a nurse at the hospital on the morning of the deceased’s admission. She gave the following evidence about speaking to Latara Hunt and the accused:
AI asked them ‘Guys, do we know what happened here?’
QWho did you direct that question to.
AJust the both of them, probably more the mum, but yeah.
QWho spoke.
AThe stepfather.
QWhat did he say.
AHe said that they’d been out that night and they’d got home about 1 o’clock in the morning. At some stage he’d heard like a loud noise and like a scream or something, but he thought that the child was having night terrors so he didn’t go, but then at some stage later he went to check and he found the child down the side of the bed.
She also gave evidence that, at some stage, she saw bruising on the deceased’s head and face; mainly on the forehead and the face.
Verity Sikorski was also a nurse at the Flinders Medical Centre and was there for the admission of the deceased. She was of the opinion that, when the deceased was brought in, he was being held by Latara Hunt and that, at that stage, he was dead. She observed that the deceased had faint bruising around his head, and she noticed it mainly on the forehead. There looked to be early swelling as well. She then gave the following evidence:
AI asked what happened. There was a few people that asked ‘How did this happen?’ and I was one of them.
QWhat happened after you said that.
AThe male responded ‘He has just fallen out of bed’ and then elaborated ‘At about 1 o’clock I heard a primal scream and thought it might have been night terrors so I didn’t go in, but went to check at 4 o’clock and heard a gurgling sound’.
Natalie Cook was a nurse also on duty on the morning in question. She said that she spoke to Latara Hunt who said that the deceased had been caught down the side of the bed. The accused was present at the time she said that.
Dr Petra Bos was a paediatric registrar on duty when the deceased was brought to the Flinders Medical Centre. She gave evidence at the previous trial, which was tendered as an agreed fact before me. Dr Bos said she spoke with both the accused and Latara Hunt, but that Latara “didn’t say a lot”. She asked the accused what had happened. The accused said that he heard the deceased having a nightmare and decided to check on him. He then found the deceased lying on the floor with his head between the bed and a cupboard. He said that, at that stage, the deceased was gasping and making gurgling sounds.
I now turn to the medical evidence.
Medical evidence
Dr Janine Tee holds extensive specialist qualifications in paediatrics (Exhibit P32, Curriculum Vitae). She is a consultant at Child Protection Services at the Women’s and Children’s Hospital. She gave evidence of her very extensive experience, study and qualifications in the area of paediatrics and concerns of physical abuse upon children. In that area, she has been involved in something like 500 forensic examinations on top of her academic qualifications. She conducted examinations of the deceased at the hospital and attended the post-mortem conducted primarily by Professor Byard, and attended a reconstruction by the police of a setup of the furniture in the room of the granny flat depicting the events of the morning of 14 January 2012.
She first had contact with the deceased at approximately midday on 14 January 2014 in the Paediatric Intensive Care Unit at the Women’s and Children’s Hospital. She conducted an examination. At that time, the deceased was on life support. She took photographs of his injuries, which were tendered in evidence (Exhibit P33).
At 5.50 on the morning of 15 January 2012, the deceased had a CT scan of his head. Dr Tee said that showed evidence of generalised brain swelling of the brain tissue generally, and there was a recent subdural haemorrhage and a subarachnoid haemorrhage. There was evidence of scalp swelling on the left‑hand side, with some recent blood in it. Also on the CT scan there were some small areas of what is called micro-haemorrhaging in the brain itself. She gave evidence that, at 6.00 pm, life support was withdrawn from the deceased. An aide-memoire (Exhibit P36) setting out all the injuries observed by Dr Tee was tendered in evidence. The injuries are set out in detail in that aide-memoire and, for the purposes of these reasons, I need only refer to them in categories but indicate that I have had reference to both this aide‑memoire, and one provided by Professor Byard.
The first category is a series of bruises to both legs. According to Dr Tee, there are approximately nine such injuries. There is no need to discuss those injuries any further, because Professor Byard gives the clear opinion that those injuries were very much consistent with the wear and tear of everyday life of a child aged two.
The next area was genital injuries. They are set out in the aide-memoire. These injuries include petechial bruises all over the pubic area and on the penis itself. Petechial bruising is what I might call “dotted” smaller bruises. In relation to that area of bruising, she gave the following opinion as to what kind of force would be necessary to cause them. She said:
AThese bruises, if we talk about the bruises over the pubic area first, separate to the penis itself, it’s likely to have resulted from impact. The linear appearance of the uppermost bruising suggests to me that the impacting object had a linear component to it but sometimes when there is impact through clothing as well and that revolves you can get that linear appearance as well. The bruising to the penis if just impact to one side from the front of the penis I would not expect to see bruising on the underside of the penis as well as the front side. Generally what happens when there is impact to that site is because the penis and the scrotum are freely mobile they tend to move out of the way and not get injured so the mechanisms of injury that can cause penile injury would be either more than one impact to cause the bruising to both sides or pinching and pulling and twisting. The scrotum similarly if there’s impact to that site it tends to move out of the way and also not forgetting BJ wears nappies so if there was impact through the nappy it should protect that area from bruising. The scrotum bruising the mechanisms of injury might be impact or again grabbing, pulling, twisting.
The next area was bruising to the left elbow, which included three bruises which she said could be inflicted by “significant impact”; namely, where a significant force came into contact with the elbow or the arm.
The next injury are abrasions to the right hand, which were not significant.
There were three bruises to the left buttock, and one bruise to the right buttock. Dr Tee was of the opinion that those bruises would have been caused by impact, but she is unable to determine whether it was as a result of hitting something or something hitting him. She was, however, of the opinion that there were at least two impacts to cause those bruises. The same could be said of two bruises which were discovered on the back of the deceased.
On the back of the head, on the right temple and further back on the right side of the head there were a total of six bruises, but Dr Tee was unable to quantify the amount of force which was required to cause those bruises.
On the left side of the head was a cluster of petechial bruising on the scalp, but also a large swelling to the left side of the scalp with overlying redness. She was of the opinion that that was caused by trauma.
On the right side of the head there were two bruises.
Dr Tee then gave evidence of the observations she made of the deceased’s face. There were six bruises spread across the forehead. Dr Tee was unable with any accuracy to say the number of impacts which would be required to cause that bruising. There were a number of bruises to the right temple, the right eye, the right cheek, the front of the left ear and the left ear itself, the right ear and the jaw. These are set out in Exhibit P36. There was also a small bruise adjacent to the left nipple and petechial bruising on the neck.
In relation to the bruising generally, Dr Tee gave this evidence:
QBefore I go to the other injuries, the pattern of bruising that you saw on this child, did you have an opinion about the general pattern of bruising.
AThere was an extensive number of bruises, far more than I would ordinarily see on a child who didn’t experience any major trauma, for instance. There was a predominance of bruises over the head and the face.
QDid that lead you to a particular opinion.
AWell, it led me to be concerned that there had been a physical assault of this child.
In Exhibit P36, Dr Tee set out the results of the examinations by way of head imaging. She gave evidence of the multi-layer or retinal haemorrhages that can be caused by trauma which raises intracranial pressure and causes such haemorrhaging. In other words, those haemorrhages could have come from the swelling of the brain. In this case, there was brain swelling. She told the Court how the brain swells as a result of trauma, and how that can lead to death. She also gave evidence that there was a left-sided subdural haemorrhage and a left‑sided subarachnoid haemorrhage, which assisted her in coming to the opinion that there was a significant impact to the left side of the head.
She also gave an opinion that the genital injuries or buttock injuries would not have been caused over a nappy.
Dr Tee was of the opinion that, to account for the bruising to the face and head, she would estimate there would be at least eight to ten impacts at different locations. In terms of the brain injuries, she was of the opinion that, to cause such injuries, it would be a high-force blow; she could not quantify the amount of force.
Dr Tee also gave evidence that she was asked to attend a reconstruction organised by the South Australia Police during which the bed base, the cot, mattress and wardrobe were set up in the same configuration as was set up before me in Court, and this was consistent with what Mr McKenzie observed in the granny flat. In order to assist Dr Tee in that reconstruction, measurements of the deceased from a CT body scan were supplied (Exhibit P37).
At the reconstruction, two scenarios were put to Dr Tee; namely, that the mattress was overhanging the trundle bed, similar to the configuration shown in Court. The second scenario was that the mattress was flush with the edge of the bed base, so that there was a clear open space between the bed base and the wardrobe. Professor Byard was also at the reconstruction.
I need not go into that reconstruction in detail, except to say that Dr Tee was of the opinion, based upon the measurements, that, even on the first scenario, the head of the deceased could fall off the trundle bed and hit the ground surface between the trundle bed and the wardrobe. That would, of course, be from a very low height of 28 millimetres. On this scenario, of course, the mattress would need to be compressed to accommodate the presence of the head.
In relation to the second scenario, obviously given the positioning of the mattress the space would be larger and the child’s head would fit more easily.
Dr Tee also gave evidence that there was a further injury detected post‑mortem which was not evident on the CT scan. That was a temporal lobe contusion, or bruising to the temporal lobe of the brain. She gave the following evidence on that topic:
QWas there another brain injury detected in the post-mortem examination that wasn’t evident in the CT scan.
AYes, there was.
QWhat was that.
AIt was a temporal lobe contusion or bruising to the temporal lobe of the brain.
QIs that something that won’t be picked up on the CT scan.
AIt may or may not, depending on the size of the contusion. In this case it wasn’t an obvious finding on the imaging before the post-mortem.
QCan you tell us what’s the mechanism involved to cause at a temporal lobe contusion.
AWell, it’s significant movement of the brain inside the skull so (INDICATES) the part of the temporal lobe that’s bruised in this case is called the temporal pole, which is at the end or the tip of the temporal lobe, which sits on the (INDICATES) bottom of the cavity in the skull over a bony plate of skull, which has quote [sic] a lot of ridges, rough ridges over it. So any significant movement of the brain in this space can cause it to impact on that rough part of the skull plate and cause injury.
QWhat sort of force are we talking about to cause a temporal lobe contusion.
AWell, we’re not able to be accurate with the degree of force but these temporal lobe contusions are very unusual in children and the types of injury or the types of mechanisms that have been reported to cause these would be significant high-fall injuries so falls from a significant height, motor vehicle accidents, the high‑force injury.
Dr Tee also said that, taking all the injuries to the brain into account, there was a significant amount of force involved and she would expect the consciousness of the deceased to have been altered. She would expect that alteration of consciousness to have occurred fairly early in the time of the head injury, maybe within minutes.
Dr Tee also said in evidence that blood tests were taken from the deceased at about 6.45 on the morning of 14 January 2012. They showed the existence of a condition known as Disseminated Intravasular Coagulation (DIC). The importance of that finding in this case is that the evidence of the medical experts is that DIC is a condition which can potentially cause spontaneous bruising unrelated to trauma. Both Dr Tee and Professor Byard were cross-examined extensively on that topic, on the basis that the extent of the bruising observed on the deceased may have been exaggerated due to the presence of the condition of DIC and that not all of it may necessarily have been caused by trauma, but some of it may have been accountable to that condition. I do not wish to spend a great deal of time on that topic, except to say that both Professor Byard and Dr Tee were of the opinion that there is only, at the very most, a theoretical potential for that to happen. When I turn to Dr Byard’s evidence, he was certainly of the view that that was not the case here.
I turn to Professor Byard’s evidence. Professor Byard is a forensic pathologist employed at the Forensic Science Centre in South Australia. His extensive curriculum vitae was tendered in evidence (Exhibit P48).
On 16 January 2012, he performed a post-mortem upon the deceased. He also provided to the Court an aide-memoire as to his observations of the injuries (Exhibit P43). He gave general evidence about the aging of bruising, and said that is an area of scientific opinion that has undergone quite a change, and is an area about which experts cannot be precise. In other words, the best an expert can do is differentiate between a more recent bruise and an older bruise. He explained the nature of petechial bruising, which tend to be more superficial and spot-like. He then went through the injuries set out in his aide-memoire, which is similar if not the same as the aide-memoire of Dr Tee. He was of the opinion that the bruises to the legs of the deceased were typical of a toddler and irrelevant to the present case.
In relation to the injuries to the genitals, he said they were consistent with either blows or pinching or twisting. He said that, as far as the genitals were concerned, it could have been caused by five separate blows or pinches, although he described it as one. He was of the opinion that the bruise to the elbow was from a blunt force instrument and would not be described as normal wear and tear, and that the bruises to the buttocks were caused by a blow or blows or falling on to an area or surface. Although he has grouped the injuries to the buttocks as one injury, if they were caused by blows with a fist it would have to have been more than one.
Professor Byard was of the opinion that the bruising to the right eye (Exhibit P 43 No 25) would normally be caused by a punch. The bruising over the forehead (Exhibit P 43 No 26) amounted to extensive blue-brown bruising over the forehead and three areas of more intensive brown staining. Professor Byard grouped those injuries as possibly one impact, though stated that it could possibly have been three. He then turned to his internal examination.
Professor Byard excluded any natural cause of death. The brain was examined at autopsy and sent to a neuropathologist, Professor Peter Blumberg. He provided a report that formed part of Professor Byard’s opinion that the cause of the deceased’s death was blunt cranio-cerebral trauma, which means blunt head trauma. He then described the damage to the brain in similar terms to the evidence of Dr Tee. He said it was possible that all of the brain injuries observed could have been caused by a single blow. He then gave this evidence on this topic:
Q– or are you just dealing internally with that opinion.
ANo, I think if you look at the bruising on the outside of the head, this could be caused by a blow to the left side of the head, it also could be caused by some of the blows to the face, but I think it’s probably most likely to be the blow to the left side of the head that has caused these findings in the left side of the brain.
QSo consistent with one blow to the left side of the head, this damage, the cause of death.
AYes.
QI must get this right. That’s irrespective of the fact there might be other applications of trauma to other parts of the body. This is the vital one, so far as your opinion is concerned.
AI think that’s most likely. Is it possible there is a contribution from the facial blows? It is possible.
XN
QJust to pick up on what you said about the contribution of the facial blows. The subarachnoid haemorrhage, is it possible to talk about what blows might be responsible for that.
ANot really, because it was so scattered. I think the only thing we can say is that we have the left-sided subdural, we have the left-sided bruise to the brain, so it seems logical that it’s been associated with the impact to the left. The subarachnoid is scattered, could it come from the blow to the left side, or could it be from the blows to the face, the forehead? That’s possible too.

He was then asked this question about the number of blows:
QTaking first of all the external injuries, if I can group them in that way, the bruises. Did you reach an opinion as to the minimum number of blows to cause the injuries to the child’s face and head.
AOverall I think I’ve put eight notes [sic]. Now, to the head I’ve got six impacts, that’s being very conservative. What I’m saying is that the jaw, I think, we could say is one, I put one to the left side of the head, one to the forehead, one to the cheek, one to the cheek and one to the back of the head, but as I said there are a number of different bruises and lesions there, so it could be more than that, but the minimum is six.
HIS HONOUR
QThose six, do you link any of them up, or all of them up with internal injury.
AThe one on the left side of the head, I think certainly. The ones to the cheeks and the forehead could also have contributed, but there’s no subdural underlying them, so I think those four, certainly the left and possible the ones to the face and cheek. I’m not sure about the impact to the back of the head.
XN
QTaking then the body, which did you include in your sort of general estimate overall. Which of the injuries to the body did you include in that.
AI included the injuries to the genitalia, scrotum and penis and adjacent to the buttocks. I didn’t include the one on the right buttock, just the superficial petechiala. It was a closer of bruises on the left buttock.
QDid you exclude from consideration those bruises to the legs that we talked about being normal rough and tumble.
AYes, I did, and also the elbow injury, that’s not normal wear and tear.
QIs it possible to be precise about these things, in terms of the number of blows.
ANo, it’s not.
Further, on a similar topic, he said:
QIf I could tie that up with the opinion you gave that the bruising I think to the forehead could be one application of force.
AYes.
QRight, I want to get this clear, that is the bruising just to the forehead could be one application.
AThat’s correct.
QThe other parts of the head you mentioned would have to be separate applications of force.
AInitially I was calling the cheeks one injury I think but I think practically you would have one application of force on the forehead, one to either cheek, one to the jaw and one to the back of the head although there are a series of injuries to the back of the head and one to the side, injury 20.
Also, Professor Byard said that blunt lethal head injuries such as these would cause changes in the deceased very quickly. Put simply, he said that he would expect persons familiar with the deceased to notice a change in his demeanour and presentation following the infliction of the head injuries.
On the topic of DIC, after an amount of evidence Professor Byard said the following:
QIn your view did this child have DIC to an extent where he was vulnerable to spontaneous bruising.
AI wouldn’t have thought so given the localised nature of the bleeding, I know he had DIC and that may have exacerbated his bleeding in the areas of trauma but if the DIC was initiating significant amounts of bleeding I would expect to see if elsewhere on organs.
Again, on the topic of DIC, the prosecution called Dr Michael Winston Yung, who is a consultant in paediatric intensive care at the Women’s and Children’s Hospital. He was present when the deceased was brought to the Women’s and Children’s Hospital at 9.48 am on 14 January 2012. He observed him as being critically ill when he arrived. He said a blood test was taken and it indicated the presence of DIC, which he described as a secondary condition associated normally with a severe brain injury.
He was of the opinion that if he was presented with a child with head injuries which affect the brain so as to require intensive care, he would expect that child to have DIC. He said that he has never experienced DIC causing spontaneous bruising, although he stated that it is theoretically possible for that to occur. He added that spontaneous bruising from DIC is not something he has ever seen clinically in his experience.
I now turn to the Police evidence.
The prosecution also called a police officer, William Thomas, who was tasked to go to the Flinders Medical Centre on them morning of 14 January 2012. Whilst there, he spoke with Latara Hunt in relation to the events of that morning, and took notes of the conversation. The accused was standing directly behind her at the time. I set out his evidence on that topic:
QWhat did had [sic] Ms Hunt say.
AShe told me that she had gone out in company with Brock Powell at approximately 10 p.m. the previous evening, had returned home at 2 o’clock in the morning. After returning home, they had gone to bed. She was aware that Brock had gotten up and gone to the toilet shortly after 2 o’clock and again, shortly after 2, she heard a thud noise, went to check on her child and found the child down the side of a makeshift bed.
QDid she say what the condition of the child was.
AShe did. She said the child’s breathing was laboured, I believe, and one breath where there should have been three.
QShe did say anything about the bed [sic].
ABrock constructed the bed, the makeshift bed. It was approximately 30 cm high from the floor.
QDid she say anything else on the topic of Brock going to the toilet.
ANo.
Mandy Gay Bell was called. She was a police officer stationed at Sturt. On 14 January 2012 at 8.27 am she had an interview with the accused, which she recorded. (Exhibit P44 and Exhibit P44A). During that interview, the accused told the police officer that when he came home from the hotel on the morning in question he went to the toilet in the main house. He said he then picked up Destiny and took her to her room. He then grabbed the deceased and put him into bed in the granny flat. Latara Hunt then went to the toilet and came back, having gone for about five minutes; then she came back and both went to sleep. He then heard a thud. Both were in bed and saw the deceased lying between the bed and the wardrobe.
The prosecution tendered in evidence the accused’s evidence from the previous trial. (Exhibit P51). I wish to summarise his evidence at that trial and set out his defence.
He told the Court that, at the time of the trial, he was aged 25. The only trouble he had had before with the police was when he was 17 when he got caught for graffiti, which was dealt with by way of a family conference. He had never been in any other trouble. He told the Court that he started a relationship with Latara Hunt when he was at high school. He discontinued that relationship when they were very young, but he took it up again when he was aged 21 or 22. He commenced living with Latara Hunt. They eventually moved to Winston Avenue, Melrose Park, where he, Latara Hunt and the deceased were living in the granny flat, and Michael Turrell, Christian Edwards, Karen Hunt and Destiny were living in the main house.
He gave evidence of the caring arrangements with the deceased. He gave evidence of how he made the trundle bed for the deceased. He said that the trundle bed could slide under the main bed. He said it could even slide under the main bed, even with the mattress on it, if you squeezed it hard enough. There was a curtain placed between the double bed and the trundle bed when the deceased went to bed at night. He said he never disciplined the deceased, nor did he ever change his nappies. That was always done by Latara Hunt. He said that he drank alcohol, and that he would take cannabis and methylamphetamine. He agreed he smoked some methylamphetamine on the night that they went out, prior to the deceased’s death, and also that he smoked cannabis on that night.
He gave evidence of the events of Friday 13 January 2012. He said that the deceased was delivered to the house in the morning. He went out during the day and he got home at about 5 pm. There was talk about going to the Victoria Hotel. Latara took the two children into the main house for dinner. He stayed in the granny flat.
They had planned with Kiarra Bell, who lived next-door, to go to the Victoria Hotel. Before they went, he was drinking scotch and Coke. He noticed them drinking vodka. He smoked some cannabis and some methylamphetamine, as did the other two. He said they left the house at about 9.30 pm and got to the Victoria Hotel by bus. Destiny and the deceased were in the main house.
He said that Latara took some alcohol to the hotel in her handbag and was drinking. He then gave evidence that the three of them left the hotel at about 1.20 to 1.30 and got a lift back to Winston Avenue with Jason St Claire O’Connor and they arrived home just before 2 o’clock. When they got home, a taxi arrived with Michael, Karim and Josh Kelly. Michael was Latara’s brother and the other two were his friends. They went straight into Michael’s room. The other three went into the granny flat.
He gave evidence that Kiarra Bell left almost straightaway. They sat down for a few minutes and he went inside to go to the toilet. He had only been in the granny flat for about five minutes before he departed to go to the toilet. He then gave evidence that he went into the house to use the toilet, but he heard the deceased’s voice. He went into the lounge room to check him, and found him awake. Destiny was still asleep. He thought they were both on the same couch. He did not go to the toilet at that stage, because the deceased was awake; so he took him back into the granny flat to Latara. He had a drink of water on the way through, but did not see any of Michael’s friends.
When he got into the granny flat with the deceased, he gave him to Latara. He went straight back into the main house to use the toilet. When he was carrying him into the granny flat, the deceased was wearing shorts and a T-shirt, but he could not see whether he was wearing a nappy or not. Whilst he was in the house, he used the toilet and then decided to put Destiny to bed, even though she was still asleep; that is, he took her from the couch to her bedroom. Whilst he was moving her, she began to wake up. He said he spent four or five minutes and just sat with her while she went to sleep. He then went back into the granny flat. He said he was in the main house on that occasion for about ten minutes.
He said that when he got back into the granny flat, the deceased was tucked in bed.
He then said in evidence that he and Latara Hunt had some kind of disagreement. He gave details of that disagreement, which details are not necessary to go into. Latara Hunt ended up going into the main house. He had no idea how long she was going to be there. When she left, he went outside for a “smoke”. By that, he meant smoking cannabis. He then went back into the granny flat and laid on Latara Hunt’s side of the bed, that is, the side furthest from the deceased’s bed, and watched television. He then fell asleep.
At one stage he woke up and heard a noise and a murmur from the deceased. The curtain between the two beds was closed at that stage. The accused still had his clothes on. He waited to see whether anything further was going to happen, because often the deceased would wake up and walk around and jump in the adults’ bed. However, as this did not happen, the accused then went back to sleep.
Some time later, he woke up to go and get Latara. On doing that, he checked the deceased and found him beside the bed and the cupboard. He said the deceased was stuck between the cupboard and the bed. He told the Court he was facing downward with one arm up. He described it as the left arm. He said the deceased was wearing shorts, no nappy and a T-shirt. He then told the Court he went to pick him up and get him out of the situation, and then heard him gurgling. He said he put his foot on the bed to pick him up and, as he was doing that, he pushed it – meaning the bed – away a bit. He then put the deceased on to the adults’ bed, but he was making a gurgling sound.
He noticed that he was wearing a T-shirt and a nappy, but he does not believe he was wearing any shorts. He then started to perform CPR on him. He did not see any marks on the deceased at that stage.
The accused then gave evidence that he took the deceased’s T-shirt off and “chucked it to the side”. He continued with CPR but, eventually, left the granny flat after about five minutes. He gave evidence that he did not touch the red chair and that was later found on the deceased’s bed , when he picked up the deceased to give him CPR, it was not in the position later seen by Mr McKenzie. He does not know how it came to be in the position of being upside down on the trundle bed.
He then called out for help and ran inside. He went into the main house through the back door into the main lounge room. He shook Latara Hunt and said something was wrong with the deceased. He then ran back into the granny flat. Latara followed shortly afterwards. He recommenced performing CPR on the deceased. He said Latara was frantic. She ran back into the main house to get her mother. Eventually, having tried to call an ambulance, he, Latara and the deceased went in a car to Flinders Medical Centre. Latara ran into Flinders Medical Centre with the deceased, the car having pulled up in the emergency lane. The accused was a few metres behind them.
In relation to any discussion with the nursing staff, the accused said that when asked to say what happened he only got about four words out before being cut off by Latara. He said that Latara ended up saying to nursing staff that she had found the deceased in the room. He then said in evidence that he told the police officer who taped his conversation that he adopted what Latara had said to the first lady she spoke to, namely, that she was in the room when the deceased was found.
In evidence at the previous trial, the accused said that the ice pack which was on the bed was used during the course of the night when they had the “meth” out.
The accused denied in any way assaulting the deceased.
It is to be noted that that evidence is inconsistent with what he said to Mandy Bell in the record of interview. There was no mention in that record of interview of any argument between the accused and Latara Hunt as a result of which Latara Hunt left the room, and no mention of Latara Hunt ever being alone with the deceased.
I have also considered very carefully the accused’s cross-examination at the previous trial. He was cross-examined about inconsistencies put to various people at the hospital. In particular, he was cross-examined about telling one of the nurses that he said he heard a scream. His reply in cross-examination was that he could not recall saying “a scream”. He was also cross-examined about why he lied at the hospital and to the police. He said he did so, in a sense, to protect Latara. He gave this evidence:
QMoving to the hospital, you said a number of times in your evidence that you only gave the version you did because you were jumping on board with what Latara was saying.
ATrying to protect her in that sense because after she gave the first lead of events – sorry I can’t remember if it was police or the medical. When they left I then pretty much asked or sort of had a go at Tara, saying ‘Why did you lie?’ Her reasoning was because she didn’t want to look like a bad mother and get Destiny taken.
QYou say the only reason you gave the version you did at the hospital was because you were following what Latara said.
AYeah.
As I indicated, his evidence at the previous trial is important material to which I must have regard, albeit I have the disadvantage of not observing the accused give his evidence.
The prosecution case was completed by evidence from the previous trial from two witnesses of character. Both attested to the good character and reputation of the accused.
Analysis
On the evidence presented to me in this trial, there are three questions which I have to answer in the affirmative before the accused can be found guilty. They are:
1Was the death of the deceased a result of a deliberate application of force upon him by another person; or, is it reasonably possible that it was some form of unfortunate accident?
2If the first question is answered in the affirmative, did the person who applied that force do so with the intention to cause at least grievous bodily harm?
3Has it been proved beyond reasonable doubt that the person who applied that force, to the exclusion of anybody else, was the accused?
I deal with the first question. I deal with it briefly because, in my view, the answer is clear and obvious. On the evidence presented to me, it is not reasonably possible, or in any way possible at all, that the death of the deceased was caused in any accidental way. In fact, I go further and find that such a suggestion is almost fanciful. In answering that question, I indicate that it is possible that the deceased could have rolled into the gap between the wardrobe and the trundle bed.
There was evidence by way of agreed fact of the opinion of an expert as to whether such an occurrence could have occurred whilst the mattress was overhanging. However, there is enough doubt in my mind as to whether on the morning in question the mattress was, in fact, overhanging between the trundle bed and the wardrobe, or it got into that state some time after the deceased was taken from that position. The evidence of Dr Tee is clear that the deceased’s head could fit between the wardrobe and the edge of the trundle bed.
Having found that, however, I find that even if he did roll on to the floor from the position of the trundle bed, that could not have caused the injuries that resulted in his death. The height of the trundle bed is very small. The extent of the injuries are great. The force required to cause the injury which caused the swelling of the brain is significant and, as the medical evidence clearly shows, is accompanied by numerous other injuries on various parts of the deceased’s body. The coincidence of these injuries, having not been observed on earlier occasions by any witness, happening to have appeared after the deceased had rolled on to the floor is, in my view, fanciful.
I have no doubt that an accident can be rejected.
I can also dispose of the second question. Whoever inflicted the injuries which caused his death, accompanied by the other assaults upon this child’s body, clearly had an intention to cause at least grievous bodily harm. There can be no other conclusion. A mere reciting of the medical evidence presented at trial, and uncontradicted by any other evidence, clearly proves that fact beyond reasonable doubt.
The third question causes me great concern. Can I find that it has been proved beyond reasonable doubt that it was the accused, and not another, who assaulted the deceased? In attempting to answer that question, I am faced with three alternatives:
1It has been proved beyond reasonable doubt that the accused alone assaulted the deceased; or
2 Whilst he was out of the room Latara Hunt assaulted the deceased; or
3 Both the accused and Latara Hunt assaulted the deceased.
The dilemma with which I am faced is that both of the main parties in this case, namely, the accused and Latara Hunt, have at various stages lied. It is difficult to trust anything each of them says. The accused has told numerous lies about Latara Hunt being present when he says he discovered the deceased. He told lies at the hospital to various family members, and to the police when interviewed. That goes to the question of his credibility when I assess the evidence he gave at his previous trial, which his counsel now argues is reasonably possible as being the truth.

Latara Hunt strangely told the same lies. There are many peripheral lies, it has been put, that she told concerning such matters as to whether she had ingested alcohol or smoked drugs before going to the hotel. However, the main lie with which I am concerned is that same lie told by the accused.
Their respective reasons for telling that lie are dubious. The accused says he told that lie because she, in fact, introduced the topic and he just went along with it. Latara Hunt says that she told that lie because it would make her look like a bad mother if she was seen to be out of the room in the main house when these events took place.
I do not know whether one was trying to protect the other at an early stage or whether, in fact, they may have both been involved following an argument. However, the reasons they have given for that deception do not fill me with confidence in their evidence.
There is a further strange aspect to the evidence of Latara Hunt. Within the trial itself, there is a discrepancy between the Crown opening whereby it was put she was never alone with the deceased. That is in contrast to her evidence when she said the accused went out of the room for the second time to go to the toilet, leaving her alone with the deceased.
I am further troubled by the submission put by Mrs Shaw, that the extensive wounds to the genital area could not have been caused over the nappy. Professor Byard gave clear evidence to that effect. The objective evidence before me is that Latara Hunt changed the nappy, and the accused had nothing to do with it. It is clear that those injuries to the genitals were caused at the same time as the injuries which caused death. It is difficult to say where that leaves me in deciding who committed this offence.
Can I find beyond reasonable doubt that the accused took the nappy off, inflicted these wounds and then put it back on again?
I also consider very carefully the fact that if it is reasonably possible that Latara Hunt inflicted these wounds, it would be in a situation where the accused then came back into the room, having gone to the toilet, and the deceased was lying peacefully in bed. The question of whether it is reasonably possible that she had time to commit this assault depends very much upon her evidence; namely, that she only had about three and a half minutes, as compared to the evidence of the accused that she had ten. Any fact in this matter which relies solely upon her evidence has to be treated with great suspicion, because of the problems I have with her credibility.
I cannot exclude beyond reasonable doubt a hypothesis consistent with innocence. That hypothesis is that Latara Hunt was alone with the deceased, and that she may have inflicted the trauma which ultimately caused death. I cannot exclude that hypothesis, even if her time alone with the deceased was as brief as three and a half minutes, as she says, and even if, when the accused came in, the deceased was in bed, bearing in mind the additional fact that the two beds were separated by a curtain. The effect of the trauma upon the deceased, consistent with the medical evidence, could have taken effect by then, in particular, rendering the deceased comatose.
I cannot draw any distinction between either the accused or Latara Hunt as to their respective capabilities to commit this crime.
Ms Telfer in her very clear argument puts to me that the dishevelment of the room in the sense of the difference between when people saw the room originally and as described by Mr McKenzie indicates violent activity consistent with an assault. She also argues that the presence of the scissors and the ventilator, and perhaps the ice pack, indicate a determination by the accused to revive the deceased and perhaps cover up his crime before calling anybody. In other words, it was an out‑of‑character unwarranted attack that was instantly regretted.
Ms Telfer may be right; but I can put it no higher than that. Having viewed all the evidence and all the arguments, I come to the very clear conclusion that it is been proved beyond reasonable doubt that this was not an accident.
I find it proved beyond reasonable doubt that whoever perpetrated this assault did so, even though it may have been spontaneous, with the intent to cause grievous bodily harm.
I suspect it was the accused. In fact, I think it was probably him. However, on the evidence placed before me, I cannot be convinced that that is so to the requisite onus.
I have a reasonable doubt that he did it, and I must give effect to that.
Conclusion
I find the accused not guilty.