R v Rice
[2009] SADC 121
•6 November 2009
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICE
Criminal Trial by Judge Alone
[2009] SADC 121
Reasons for the Verdicts of His Honour Judge Cuthbertson
6 November 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Trial by judge alone - The accused is charged with Aggravated Recklessly Causing Serious Harm s23(3) Criminal Law Consolidation Act. Prosecution case that accused kicked 7 year old complainant in thigh breaking femur. No evidence of bruising supports defence contention that thigh broken in fall from bunk bed. Verdict of not guilty entered.
R v RICE
[2009] SADC 121
The prosecution filed a new information in this matter dated the 19th of October 2008 and, by consent, the trial proceeded on the new information. The accused was charged with Aggravated Recklessly Causing Serious Harm contrary to Section 23(3) of the Criminal Law Consolidation Act 1935. Particulars of the offence alleged are as follows:
Justin Paul Rice on the 8th day of April 2008 at Davoren Park, recklessly caused serious harm to D.
It is further alleged that Justin Paul Rice committed the offence knowing that D was, at the time of the offence, under the age of 12 years.
It is further alleged that Justin Paul Rice committed the offence knowing that the victim of the offence was a child of whom he is the parent or guardian.
The parties have agreed that available alternative verdicts to me are Aggravated Causing Harm to Another Intending to Cause Harm (s 24(1) of the Criminal Law Consolidation Act) and Recklessly Causing Harm (s 24(3) of the Criminal Law Consolidation Act).
Background
At the time of this offence D was living with his mother, his older brother, two younger siblings and their stepfather, the accused. He was 7 years of age.
There is evidence that D was a slow learner with some unspecified intellectual deficits.
His father, DM, told the court that he has difficulty with reading, understanding words, putting a sentence together, Literature, English and Maths. Since age 2 he has had difficulties with speech and is currently seeing a speech pathologist.
He has had D booked into the Child Mental Health Services for counselling and for getting speech pathology. D has also had behavioural problems since he has been at school for which he has been disciplined.
It seems clear, also, that there were difficulties at school for various behavioural matters involving inappropriate conduct towards other pupils and staff.
A document has been tendered by consent, a School Behavioural Management History (Exhibit D9), and I am asked to receive it for the truth of that which is asserted in it, which I do.
Prosecution Case
The prosecution case is essentially dependant upon my acceptance of “D” as an honest and reliable witness.
He says that on the relevant day he was suspended from school for punching someone.
When he got home his mother told him to sit on his bunk bed.
His stepfather, the accused, came home for lunch and D hid.
He hid at the end of his brother J’s bed, which was a non bunk bed because he knew he going to get into trouble. His name was called by the accused and he came out and the accused grabbed him by the collar and pushed him. He claims this incident occurred in the hallway and not in his bedroom.
He described how he was sitting on the floor in the hallway with his left leg outstretched and his right leg tucked up so that the sole of his foot was touching his left thigh when he was kicked on the top of his right thigh by the accused who was wearing heavy work boots.
He had never been hurt so much before.
The accused told D’s mother to ring the ambulance. He grabbed D and placed him on the couch and told him to say that he fell off the bunk bed. The accused said: “Pretend I didn’t kick you. Just pretend you fell off your bunk bed.”
Ambulance Officers Reed and Horton received a call to attend at the accused premises at 13:41 hours. They arrived at 13:46 and were greeted by D’s mother.
She informed Mr Reed that she had heard a loud bang, heard some crying and had gone into the room and found her child on the floor.
This is not evidence against the accused.
When the ambulance officers attended, D was laying on the lounge. He appeared to have a lump where the femur had been broken.
Additional pain relief was provided by calling for an Intensive Care Paramedic.
Initially D was conveyed to the Lyell McEwin Health Service.
Mr Reed said that whilst his note indicated that the information he received was that D had fallen from a bunk he had no recollection as to who had said that.
He claimed he did not speak to D about it. If I accept that evidence I might infer that it must have been either the accused or his wife who said it.
It is not, however, evidence I can use against the accused.
D asserts that he was wearing, at the relevant time, a red “bad boy” t-shirt and jeans.
He claims the t-shirt was ripped when he was grabbed by the collar by the accused.
During cross examination it was put by counsel for the accused that a blue t-shirt (Exhibit D1) was the one he was wearing but D denied that.
At the Lyell McEwin Hospital D was seen by Dr Busuttil on the 8th of April 2008. She examined D and observed that his right leg was swollen and that he appeared to be in distress from pain. She has documented that she had been told that he had fallen off his top bunk. She can’t recall who provided this information other than that it was not the patient.
D’s leg was placed in a temporary cast for transfer to the Women’s and Children’s Hospital that same day.
Dr Anthony Nguyen was, in April 2008, a Registered Medical Officer at the Women’s and Children’s Hospital and came to treat D.
He indicated that D had suffered a fracture of the femoral shaft close to the middle of the thigh bone. It was an oblique fracture. X-rays were taken and the fracture is amply demonstrated in the X-ray (Exhibit P1).
D was placed in “Thomas traction”, essentially a process whereby some weight applied by a rope or pulley gives symptomatic relief.
On the 22nd of April 2008 Dr Nguyen became aware that D was making an allegation that the injury was caused by his step-father and he contacted Child Protection Services.
He could not recall any bruising or marks on the thigh in the vicinity of the fracture and agreed that you would expect notes to be made of the presence of a significant degree of bruising. His notes made no such reference.
He indicated that he had treated many patients with similar fractures as this with many mechanisms of injury but had never observed any significant bruising.
Sharon Young is a graduate Social Worker. In April 2008 she had not yet graduated but was doing some placement work at the Women’s and Children’s Hospital.
On the 17th of April 2008 she was asked by her supervisor to meet D. She introduced herself to him in the presence of his mother who was present beside the bed and she asked how D came to break his leg and he whispered quietly that, “Justin kicked me”.
Ms Young thought that Justin was a reference to his brother and replied “That’s your brother, your brother kicked you”. D did not say anything or respond to the suggestion.
The information was reported to Ms Young’s supervisor that D’s brother had kicked him.
Ms Yasin is about to complete a medical degree.
In April 2008, as part of her degree course, she was at the Women’s and Children’s Hospital and had contact with D on the 22nd of April 2008. On that occasion she asked him how he injured his leg and he said, “My step-father kicked me and pushed me”. She reported that information to Dr Nguyen, the medical officer, who in turn reported it to the Child Protection Services on 24th April.
The only use I can make of the complaints made to Ms Yasin and to
Ms Young are that they give an indication as to when the authorities would have been expected to commence enquiries. The complaints are not to be used as evidence of the truth nor do I use them as evidence of recent complaint to bolster D’s reliability by analogy with a sexual case.
In other words the timing of the complaint, and the nature of the complaint, are intractably neutral on the question of the guilt of the accused.
The authorities having been involved, an experienced forensic paediatrician working at the Child Protection Services, Dr Terence Donald, was asked to examine D.
He met with him in the Orthopaedic Ward whilst he was in traction.
He noted that the X-ray disclosed a transverse fracture and opined that it was thus due to either a levering force or a direct impact.
By a levering force he meant a bending force as you would get if a leg was caught and the body weight bent the bone. Alternatively he said, a kick could adequately account for the fracture observed. He would not expect a transverse fracture to result from the standard fall from a height by which he means a fall from about 1.2 metres where you land on your feet.
When asked whether the lack of any bruising around the area of broken bone would change his opinion he only answered that an observation of bruising was not one that a competent doctor would necessarily make because it would be irrelevant as far as the diagnosis and management of the problem is concerned.
When asked whether a boot causing the damage would be expected to leave a bruise he said it depended on the clothing being worn.
When it was put to Dr Donald that you would expect a bruise in the shape of the part of the boot making contact he agreed but said that you don’t always see it for the reasons he mentioned, which were the type of clothing and the lack of any noted observation of bruising.
When it was put to Dr Donald that you would expect bruising, if it was present, to be there some 12 days after the trauma his response was “not necessarily”.
He finally agreed that if there was not bruising it would make it more likely that the mechanism of the break was not a force concentrated on a small area (like a boot kick) but rather a bending.
He said that it is possible to have an injury of a breaking of the bone without bruising to accompany it but he went on to say, however, that the kick scenario would probably lead to a muscle injury and bruising.
The Defence Case
The accused said he is currently aged 37 and married to J, the mother of D.
He says that D had been attending Swallowcliffe Primary School at Davoren Park. There had been behavioural difficulties at school and several occasions on which D was suspended.
On the 8th of April 2008 the accused was working for TVR Bulk Haulage as a Foreman / Transport Manager / Driver.
He regularly came home for lunch and did so on 8th April, 2008.
He learned from his wife that on that day D had been suspended again. (See Exhibit D9 for School Behavioural Management History).
He got home at about 1.30pm and spoke to D, asked him what he had been doing and explained to him that he can’t be throwing chairs and things at teachers.
His wife was with him. They spoke for a minute or two in the bedroom that the three boys shared and where D had been hiding under the bed.
The accused had previously asked him to come out and he did.
D was instructed that he had to stay in bed until the accused got home from work later that day and the accused walked out of the bedroom.
At that stage he says that D was standing up in the middle of the room and at the time he left the room D had climbed up on his bed.
He was making his lunch and having that and he heard a thump.
D yelled out, “Ow my leg” and he and his wife ran to the bedroom to see D in the middle of the room on the floor complaining about his leg.
He observed that the leg was twisted and there was a big bump on his leg. He asked his wife to ring the ambulance and picked D up and took him to the lounge room and put him on the lounge.
He did not kick D.
The Law
At the beginning of the trial Mr Ey, Counsel for the accused submitted that there was material obtained by subpoena that tended to show that D had little or no conception of truth from falsehood.
Accordingly Mr Ey made application under s 9 of the Evidence Act that pursuant to s 9(2)(a) I should enquire as to whether I could be satisfied that D understands the difference between truth and falsehood.
I conducted a short enquiry and came to the view that the child did understand the difference and that he should be permitted to give sworn evidence. In the circumstances he affirmed. (See s 6(4) & (5) Evidence Act.)
The accused is presumed innocent unless, or until, his guilt has been proved.
The burden of proving the charges lie wholly on the prosecution and the onus of proof is beyond reasonable doubt. The accused is not obliged to prove anything. Where he has put forward a defence he does not have to prove it. The Crown must disprove it beyond reasonable doubt.
Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. I am not to reach a conclusion of guilt by preferring the evidence of D to that of the defence case. I must be satisfied before I can convict the accused of the count on the information that the prosecution has proved beyond reasonable doubt each element of the charge.
Given that the child was 7 years of age at the time of this offence and only 9 when he gave evidence before me and given his history of school difficulties, I must scrutinise his evidence with great care. I must remind myself that it would be dangerous for me to convict the accused unless I am completely satisfied of D’s credibility.
D gave evidence by video link up with the court. I am not to draw an adverse inference against the accused nor treat D’s evidence any differently by virtue of that procedure being adopted.
Elements of the Offence
In order to establish the offence of Aggravated Recklessly Causing Serious Harm it is necessary to prove the following elements:
(1)that the accused committed a voluntary act. That is an act that was deliberate as opposed to accidental.
Here it is suggested that the voluntary act was one of kicking.
(2)that the accused caused serious harm to D.
“Causes” is defined in the Act as follows:
“A person causes harm if the persons conduct is the sole cause of the harm or substantially contributes to the harm;
“Serious harm” is defined in s 21 of the Act to mean
(a) harm that endangers a persons life; or
(b) harm that consists of, or results in, serious and protracted impairment of physical or mental function; or
(c) harm that consists of, or results in, serious disfigurement.
In this case the prosecution has indicated that it relies on para (b).
(3) The accused caused the serious harm recklessly.
“Recklessly” is defined in s 21 of the Act to mean to cause harm where the person;
(a)Is aware of the substantial risk that his or her conduct could result in harm or serious harm (as the case requires; and
(b)engages in the conduct despite the risk and without adequate justification;
(4)There was no lawful excuse for the act.
In this matter expert evidence was called. I am entitled to give such weight to the opinions of the expert witnesses as I think should be given having regard to the qualifications of the witness the partiality or otherwise of the witness and most importantly the extent, to which the witnesses opinion accords with such other facts as I find proved.
The accused gave evidence in this matter. He was not required to give evidence.
I will treat his evidence exactly as I treat the evidence of the other witnesses in this case.
The accused called character evidence from a Mr Brenton Raimann.
Later in the trial the counsel for the accused, Mr Ey, made an application to withdraw the character evidence.
This was agreed to by the prosecution.
As this was a trial by judge alone I did not have any difficulty in permitting this course to be adopted. It follows that I will treat the case as one where no character evidence has been called by the accused. No adverse inference will be held against the accused for the withdrawal of the character evidence and no adverse inference will be held against him for the fact that there is thus no evidence of good character.
The Issues
The principle issue for determination is whether it has been proved beyond reasonable doubt that the accused kicked D in the thigh breaking his femur.
Unless I can be satisfied of that beyond a reasonable doubt then all of the charges including the alternative charges must fail as they are all predicated on proof beyond reasonable doubt that the accused caused the injury.
I remind myself that it is not a question of choosing between two alternatives, the alternative put forward by the prosecution of a kick or the alternative advanced by the defence of a falling off of the bunk bed being the probable cause of injury.
It is nevertheless the case, however, that unless I can exclude beyond a reasonable doubt the scenario of D falling off the bunk bed being the cause of the broken femur the prosecution must fail.
Discussion
It was clear to me that during the course of his quite lengthy evidence D had a poor concentration span. He gave his evidence by video link up but I could see that he was constantly fidgeting.
He told a number of inaccuracies about details of what he had said on previous occasions and about details of his behavioural problems at school.
Nevertheless, as Ms Boord has said, he was steadfast and uncontradicted in his evidence about the incident.
I was largely impressed by the evidence of D. I thought he was unshaken in cross examination on the particular issue of whether he was kicked.
Mr Ey pointed out a number of inconsistencies and inaccuracies in relation to his history of behavioural difficulties at school.
Whilst I think it is true that there were a number of inaccuracies I would attribute it to lack of concentration during his evidence. Moreover there did not appear to be any rational basis for D deliberately lying about these matters. He appeared not to be ashamed or reluctant to discuss his behavioural issues at school nor did he seem to have desires of hiding them.
The accused, on the other hand, did not particularly impress me.
I find it difficult to believe that, if the injury occurred while the accused was not in the room, he would never have asked D how it occurred, even while visiting him at hospital and engaging in small chat.
It is difficult not to form the view that the failure to ask is some evidence of consciousness of guilt on the part of the accused. It tends to suggest that he must have known exactly what happened to D and hence there was no need to enquire.
I am also suspicious of the fact that D was carried to the couch in the lounge room.
If D was on the floor in the bedroom and a bed (J’s bed) was a few feet away, and, given that to carry someone in such circumstances with a broken femur must have caused significant pain, I find it surprising that the accused did not place D on the bed a few feet away rather than a couch some metres away. This gives weight to the assertion of D that he received his injury in the hallway.
Further, I thought D’s insistence on the fact that he was wearing a red t-shirt in the face of the production of a number of shirts was impressive. It is difficult not to be suspicious that the accused was deliberately asserting that D was wearing another blue t-shirt in order to cast aspersions on the credibility of D and to mask the fact that evidence had been destroyed of a torn red t-shirt.
The wife of the accused was not called.
One might have thought she would have been in an excellent position to give evidence as to whether indeed D owned, as he asserted, a red t-shirt at the relevant time as the photographic evidence produced (See Exhibit D6 and D7), would appear to establish.
I remind myself that I am not to draw an adverse inference against the accused or the prosecution from the failure to call her to give evidence about these matters.
At the end of the day I am required to acquit the accused unless I am satisfied beyond a reasonable doubt of his guilt.
This means I must be satisfied beyond reasonable doubt that the mechanism of his breaking his femur was a kick from the accused and no other mechanism.
I cannot help but be troubled by the absence of evidence of a bruise.
At the time D was kicked he was wearing a pair of jeans and the accused was wearing a pair of large heavy boots (See Exhibit P4).
Common sense suggests that in these circumstances, if there was a kick sufficiently hard with the boots, (Exhibit P4), one might have expected a bruise on the muscled part of the thigh where contact was made, (i.e. the outer and upper region of the thigh).
The question is whether the evidence simply demonstrates that no observations were made as to whether or not there was a bruise, or whether I can take the evidence to be that there probably was not a bruise.
I note that D was in hospital for some time. Initially at the Lyell McEwin Hospital a temporary plaster was put in place. This was an opportunity for those treating D to note if there was any bruising coinciding with the area of the break.
Further opportunity to note whether there was any bruising occurred when D was recuperating in the Women’s and Children’s Hospital.
As Dr Donald said, the bandages holding the splint together on the leg would have been regularly reviewed and it was standard practice to make sure that there were no problems developing under the bandage.
My view is that if there was bruising present it would most likely have been noticed.
Further, when Dr Donald became involved he himself noted no bruising and his brief specifically was to look for signs of physical abuse.
At the time the authorities became involved, even if bruising wasn’t noted, it is likely that it was fresh in the memory of those treating D and it would have been possible to ask all persons who had seen D, including D himself, whether there was any bruising.
D was not asked in evidence whether he noted any bruising or discolouration of his leg.
In the circumstances I do not draw an inference adverse to the prosecution from the failure to ask the question although, in my view, I would have been entitled to do so.
There appears to be no Australian authority which extends the principles
of Jones v Dunkel to a case where a party fails to ask questions of a witness
in chief. However I can see no reason why those principles should not apply
when a party by failing to examine a witness in chief on some topic, indicates
"as the most natural inference that the party fears to do so". This fear is then
"some evidence" that such examination in chief "would have exposed facts
unfavourable to the party": see Jones v Dunkel (@ 320-321) per Windeyer J.
Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 @ 62,
Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) @ 218, held that
inferences could not be drawn in favour of a party that called a witness who
could have given direct evidence when that party refrained from asking the
crucial questions.
(Commercial Union Assurance Co of Australia Ltd v Ferrcan Pty Ltd (1991) 22 NSWLR 389 per Handley JA @ 418). (See also R v D (1998) 71 SASR 99 @ 108)
It is true that there does not appear to be much in the bedroom of D which might explain the injury he has suffered. The bunk bed appears in the rather unclear video that I have seen (See Exhibit P3) to be too far away to explain a fall from the bunk bed onto the bed end of the other bed.
There are some sort of low railings on the upper bunk bed and it is possible that the leg somehow got caught in that railing leading to a bending force breaking the thigh.
There is not any evidence before me as to whether the leg of D would have fitted between the rails of the bed.
The fact that the mechanism described by D for the injury is so obviously likely to be productive of a bruise and the failure of anyone to observe such a bruise leaves me in a position of disquiet.
It seems to me more likely than not that there was no bruise as I think if one had occurred it would have been observed.
If the delay in complaining has meant that the issue of the presence or absence of a bruise is unresolved then that itself is a matter which causes me to have a doubt.
It means that the delay in reporting, albeit short, has prevented the accused from having properly tested the complaint of D by checking whether or not there was any bruise accompanying the injury.
In my view the authorities had the opportunity, when the complaint was finally made, to check prior to memories fading as to whether there was or was not any bruise.
Despite my satisfaction with the evidence of D and dissatisfaction with certain aspects of the evidence of the accused the absence of any evidence of bruising and the absence of any acceptable explanation for its absence produces in me doubt about the circumstances of the causing of the injury. Indeed I am greatly suspicious of the evidence put forward by the accused.
In the circumstances I cannot be satisfied beyond reasonable doubt that the injury was caused by a severe kick with boots on to the thigh of D.
Being in that state of mind I cannot conscientiously say beyond reasonable doubt that the charge or any alternatives has been established beyond reasonable doubt.
My verdict is one of acquittal. I find the accused not guilty.
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