R v Strbak - [2020] QSC 364

SUPREME COURT OF QUEENSLAND

CITATION:

R v Strbak [2020] QSC 364

PARTIES:

R
v
HEIDI STRBAK

(Defendant)

FILE NO/S:

SC No 1643 of 2016

DIVISION:

Trial Division

PROCEEDING:

Contested Sentence

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7, 8 and 9 October 2020

JUDGE:

Boddice J

CATCHWORDS:

CRIMINAL LAW – SENTENCE – FACTUAL BASIS FOR SENTENCE – OTHER MATTERS – where the Defendant pleaded guilty to manslaughter on the basis that she failed to provide the necessaries of life to the deceased child – where the Crown did not accept the Defendant’s plea in satisfaction of the indictment – where the Crown contends the Defendant applied blunt force to the child’s abdominal region, which caused his death – where the Defendant contends the Crown cannot exclude as a reasonable hypothesis consistent with innocence that the Defendant’s co-accused applied the blunt force trauma – whether the Crown established, to the standard prescribed by section 132C of the Evidence Act 1977 (Qld), that the Defendant applied the blunt force trauma

Evidence Act 1977 (Qld), s 132C

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, cited

COUNSEL:

P J McCarthy QC for the Prosecution
S Holt QC for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Queensland) for the Prosecution
Bamberry Lawyers for the Defendant

On the evening of 24 May 2009, emergency services attended an address at Biggera Waters in the State of Queensland. The patient was a four year old child, Tyrell Cobb.
Despite efforts by emergency services and medical staff at the local hospital, Tyrell was declared dead later that evening.
At the time of his death, Tyrell was covered in observable bruises. A subsequent autopsy revealed he died as a consequence of blunt trauma to the abdominal region, resulting in internal injuries.
At the time of his death, Tyrell was living with his mother, Heidi Strbak, and her then partner, Matthew Ian Anthony Scown.
On the day following Tyrell’s death, Scown was charged with Tyrell’s murder. That charge did not proceed following a successful no case to answer submission at committal in 2010.
Between 2012 and 2015, police undertook further investigations. Initially, those investigations were for the purpose of a review of the evidence before a coronial inquest. Subsequently, the investigation formed part of a renewed criminal investigation.[1]
[1]Transcript 3-4/20-45.
In 2015, both Scown and Strbak were charged with Tyrell’s murder and torture. Prior to those charges being laid, coercive hearings were conducted by the Crime and Corruption Commission (CCC) in July 2015.
In 2016, the Crown determined to discontinue the counts of murder and torture against Scown and Strbak.
On 16 December 2016, the Crown presented an indictment in this Court charging both Scown and Strbak with Tyrell’s manslaughter. The charge of manslaughter against each was particularised in similar terms.
The Crown alleged that Tyrell had been unlawfully killed by Scown or Strbak having inflicted the occasions of blunt trauma, resulting in his fatal injuries. Alternatively, Scown or Strbak had unlawfully killed Tyrell by failing to provide the necessaries of life to him when he was suffering the consequences of the internal injuries occasioned by the application of blunt force to his abdominal region.
On 11 October 2017, the Crown accepted from Scown a plea of guilty to manslaughter on the basis he failed to provide the necessaries of life to Tyrell. That plea was accepted in circumstances where Scown provided a statement of evidence and undertook, pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) (“the Act”), to give evidence in accordance with that statement.
Scown was convicted and sentenced to four years’ imprisonment, suspended after 987 days spent in presentence custody, declared to be time already served under the sentence, for an operational period of four years.
In accordance with the requirements of s 13A of the Act, the sentencing Judge recorded that, but for his assistance pursuant to that section, Scown would have been sentenced to five and a half years’ imprisonment, with a parole eligibility date of 11 October 2017, having regard to the 987 days spent in presentence custody.
On 1 November 2017, Strbak entered a plea of guilty to manslaughter, on the basis she had failed to provide the necessaries of life to Tyrell. The Crown did not accept Strbak’s plea on that basis. Accordingly, her sentence hearing proceeded as a contested sentence.
On 18 December 2017, Strbak was sentenced, on the basis she had inflicted the blunt trauma causative of Tyrell’s death. An appeal was dismissed.
On 18 March 2020, the High Court allowed an appeal, quashed the sentence imposed on 18 December 2017 and remitted Strbak’s sentence back to this Court for hearing.
The fresh sentence hearing also proceeded as a contested sentence. The issue for determination was whether the Crown established, to the standard prescribed by s 132C of the Evidence Act 1977 (Qld), that Strbak had inflicted the blunt force trauma, which caused Tyrell’s death.
Preliminary issues
There are a number of relevant matters not in dispute.
First, there is no direct evidence of when the blunt trauma was inflicted on Tyrell, how it was inflicted or by whom. The Crown case is circumstantial.
Second, the Crown accepts the preponderance of evidence establishes there were two separate occasions of blunt trauma, delivered 24 to 48 hours apart, with the last application of force being delivered between 25 minutes and several hours before Tyrell’s death.
Third, the Crown accepts the preponderance of evidence supports a conclusion that there were only two people with the opportunity to inflict those occasions of blunt trauma, Strbak and Scown.
Fourth, the Crown accepts that, whilst the required standard of proof is on the balance of probabilities, the serious consequences of the finding mean the required standard of proof is, in a practical sense, approaching the ordinary criminal standard of proof beyond reasonable doubt. For a fact to be proved, the tribunal of fact “must feel an actual persuasion of its occurrence or existence before it can be found”.[2]
[2]Briginshaw v Briginshaw (1938) 60 CLR 336, at 361 (Dixon J).
Fifth, in determining whether the Crown has established, to the requisite standard, that Strbak inflicted the occasion of blunt trauma resulting in Tyrell’s death, the evidence is to be considered as a whole. A summation of the evidence is Annexure A to these reasons.

Crown submissions

The Crown submits that a consideration of the evidence as a whole establishes, to the high degree of satisfaction required, that the only logical and irresistible conclusion is that Strbak inflicted the traumatic injuries which caused Tyrell’s death. That conclusion is to be inferred from her failure to obtain medical assistance for her obviously severely sick child; her concealment of the true nature of that condition; her lies regarding the origin of the multiple non-accidental bruises observed on Tyrell at autopsy; and the differing and inconsistent explanations provided by Tyrell when questioned about observable injuries on the weekend of his death.
Whilst the Crown accepts that there are two potential candidates to have inflicted the traumatic injuries, namely, Strbak and Scown, the Crown submits the Court will accept Scown’s denials and find that Strbak alone had the greater opportunity to inflict the second application of force to Tyrell’s abdominal region.
The Crown submits that no injury to the outer rim of the ear, as seen at autopsy, was observed by staff at Tyrell’s kindy on 22 May 2009, despite good reasons for hypervigilance, having regard to Tyrell’s injury at that centre and his subsequent injury to his finger, which had necessitated hospitalisation for some days. The Crown submits Strbak’s explanation for that injury was a deliberate lie, told to disguise that she was the author of that injury. Strbak’s assertion that Tyrell had bruising of the ear as a result of the fall at kindy was plainly inconsistent with the medical evidence.
Further, the Crown submits that no reasonable explanation could be drawn from the smiley face injury observed on Tyrell’s ankle, other than its deliberate infliction by the use of a BIC lighter. Strbak had used a similar implement on a prior occasion on herself. Further, there was no real opportunity for Scown to have been the author of that deliberate injury, as the injury is said to be at least four to six weeks of age. Acceptance that Strbak was prepared to inflict such deliberate violence to Tyrell is a strong piece of circumstantial evidence, suggestive of her capacity to inflict serious, deliberate violence of the nature occasioned on the weekend of Tyrell’s death.
The Crown submits that, whilst there is no evidence of others having observed violence to Tyrell in the past, or of prior bruising supportive of an abusive relationship, there was cogent evidence from Scown that Strbak had acted aggressively and violently towards Tyrell, when she did not have access to cannabis; from Cobb and Spicer that Strbak was frustrated and agitated that weekend; and from Cremin of crying and screaming from Strbak’s unit on an almost daily basis.
The Crown submits that particular significance is to be drawn from the fact that, at no stage, did Strbak inform her mother of the presence of clearly visible bruising or of the true nature of Tyrell’s sickness, such as vomiting of green bile. It is also significant that, despite promptly seeking medical assistance following the fall at kindy and the injury to the finger by the toy box lid, there was an obvious failure to seek medical assistance when there were obvious multiple bruises and continuous vomiting, including multiple occasions of vomiting green bile. The only logical explanation for this failure is a consciousness of guilt that she had inflicted serious, traumatic injuries to Tyrell. Her deliberate concealment of the true nature of Tyrell’s condition is also supported by the evidence of Cobb, that Strbak advised him on the night of Tyrell’s death that he would not be able to speak to Tyrell.
The Crown submits that the Court would accept Scown’s account of having urged Strbak to seek medical assistance and of Strbak declining to do so for fear that she would be held responsible for his injuries. Scown’s account derives considerable support from his description of Tyrell’s deteriorating condition, which bears a remarkable consistency to the account given by Allan and is in sharp contrast to the description provided by Strbak in her interviews with police. Allan described the vomiting of green chunks as well as a significant change in Tyrell’s condition.
The Crown submits it is significant that Tyrell gave inconsistent accounts of observable injuries that weekend. Tyrell’s differing accounts are consistent with Tyrell wishing to protect the identification of the author of the injury. Tyrell had previously had no difficulty in reporting Scown’s actions to others, including Cobb and Diane Strbak. There was no evidence to support a conclusion that Tyrell was fearful of Scown. Tyrell gave immediate and consistent accounts to Strbak as to the occasion of injuries from the toy box lid, and from falling on the stairs and in the shower.
The Crown submits that Scown’s conduct is inconsistent with Scown having been the author of Tyrell’s traumatic injuries. His account of having observed Strbak inflict deliberate violence on Tyrell, whilst previously describing Strbak as a good mother, resonated truth. Scown’s denial of having been the author of the traumatic injuries should be accepted as credible and reliable.
The Crown submits that, once it has been excluded, as a reasonable hypothesis, that Scown was the author of Tyrell’s traumatic injuries, the evidence as a whole supports the conclusion, to the requisite degree of satisfaction, that Tyrell’s traumatic injuries were occasioned by Strbak.
Defence submissions
The defence submits that the Crown cannot establish, to the requisite standard, that Strbak inflicted the traumatic injuries causative of Tyrell’s death. A consideration of the evidence as a whole supports a conclusion that Scown inflicted those traumatic injuries or, at the very least, that the Crown cannot exclude as a reasonable hypothesis consistent with innocence that Scown inflicted those injuries.
The defence submits that, at best, the prosecution’s circumstantial case relies on opportunity, prior violence towards Tyrell, a downplaying to others of Tyrell’s deteriorating condition, failure to seek prompt medical assistance, a request that Cobb pick up Tyrell because Strbak could not handle him, a lie told about the reasons for leaving the unit at a time when Tyrell was seriously unwell and the presence of a tube of cream used to reduce the effects of bruising.
The defence submits that a detailed analysis of the evidence supports a conclusion that the circumstantial case against Strbak is weak. Without Scown’s evidence, given as part of an undertaking pursuant to s 13A, the prosecution was unable to say which of Strbak and Scown had inflicted the injuries. Scown’s lack of reliability and credibility renders the prosecution evidence incapable of meeting the requisite standard of proof. Further, there is good reason to reject Scown’s evidence, with the necessary conclusion that Scown’s evidence was deliberately false on core issues, supportive of a consciousness of his own guilt.
The defence submits that the weakness in the circumstantial case against Strbak is the complete lack of evidence of any unexplained injuries to Tyrell prior to Scown commencing to live with Strbak. All of the injuries observed at autopsy are likely to have been inflicted in the days after Scown moved in with Strbak. Further, on Scown’s own account, Strbak brought to his attention the critical abdominal bruise and questioned Tyrell about it, in front of Scown. It is inconceivable Strbak would do so if she had inflicted that injury. Further, this inconceivability is enhanced by the fact that, despite being under threat of being charged and being encouraged repeatedly by police to implicate Scown in committing the relevant acts of violence against Tyrell, Strbak declined to do so.
The defence submits that both Strbak and Scown had the opportunity to inflict the traumatic injuries. Each was, on occasions over that weekend, alone with Tyrell. However, the occasions when Strbak was alone with Tyrell were for very short periods, when Scown went to the shops or a nearby telephone box, and at times inconsistent with the medical evidence as to the likely application of the two separate blows resulting in Tyrell’s traumatic injuries. By contrast, Scown was alone with Tyrell at a time consistent with the application of the first occasion of violence and on the Sunday evening for some 40 minutes before an ambulance was called by Scown. That time period was consistent with an application of the second occasion of force. Further, only Scown had an unobserved opportunity of being alone with Tyrell in the period of approximately 10 to 11 hours prior to his death, which was well beyond the timing of the application of the second blow.
The defence submits that there is no evidence, other than from Scown, of any previous aggressive or negligent behaviour by Strbak towards Tyrell. No assertion of witnessing an occasion of violence on Tyrell by Strbak, was made by Scown when he was first spoken to by police on the day after Tyrell’s death. Similarly, no claim was made by Scown of Strbak refusing to obtain medical assistance, when initially spoken to by police. The claim is also inconsistent with the established occasions upon which Strbak promptly sought medical assistance when Tyrell had sustained injuries. The inconsistencies in the accounts given by Scown support a conclusion that his evidence is deliberately false in an effort to cover up his own conduct.
The defence submits that, whilst Cobb gave evidence that Scown contacted him first in relation to Tyrell’s arm injury, there is clear evidence that Scown engaged in repeated attempts to frustrate the parenting relationship between Strbak and Cobb, providing an explanation for that telephone call. To the extent that Scown’s evidence is supported by Cremin, that evidence would not be found reliable. The account was not given to the police until many years after Tyrell’s death, in circumstances where Scown’s father had propounded Scown’s innocence to that witness, that witness had had Scown’s father and partner stay at her home and who visited Scown in prison. That witness’ evidence also had an inherent unreliability as she said Tyrell returned with a cast two days later.
The defence further submits that the evidence of neighbours is descriptive of events which were not concerning and inconsistent with evidence of Strbak being a good mother and of Tyrell being a well-cared for and happy child, who never exhibited any evidence of injuries or of neglect. There is also no reasonable basis to conclude that the scar located on Tyrell’s ankle was caused by a BIC lighter, let alone inflicted by Strbak.
The defence submits that the lie said to have been told by Strbak, as to her reasons for leaving the unit over the course of the weekend, could only go to credit but is of little moment having regard to the illegality associated with any visit to Archer’s residence and the inconsistency in Scown’s own accounts of Strbak’s reasons for leaving the unit that weekend.
The defence submits there is no credible evidence of a deliberate downplaying of the seriousness of Tyrell’s condition by Strbak, to her mother or Cobb. The symptoms of Tyrell’s traumatic injuries may initially have been non-specific. The condition he developed as a consequence of those injuries was insidious. In any event, Strbak told both her mother and Cobb that Tyrell was vomiting regularly and told Cobb he was too sick to speak to him. There is evidence that Strbak was contemplating seeking medical assistance if his condition deteriorated. Strbak gave an account to police consistent with the nature of the symptoms likely to have been displayed by Tyrell. The presence of bruise cream added nothing. There was no suggestion it had recently been purchased by Strbak and Strbak volunteered to police in her first interview that she had begun to use the cream when bruising became observable on Tyrell.
The defence submits that the evidence of Cobb and Spicer of Strbak requesting that Cobb take Tyrell as she could not handle him is neither reliable nor credible. Cobb said nothing about such a reason prior to speaking to police in 2015. His earlier statements and evidence at committal were specifically inconsistent with such an account. Spicer’s account only arose after he had spoken to Cobb and Cobb had supplied Spicer’s name to police.
Finally, the defence submits there is a strong circumstantial case that Scown inflicted the traumatic injuries causative of Tyrell’s death. Not only did Scown have opportunity, there was an absence of any injuries to Tyrell prior to Scown’s living with Strbak. There was evidence of Scown inflicting violence on Tyrell in the past. There was the coincidence that Tyrell suffered injuries on occasions when he was alone with Scown. There were inconsistencies in the accounts given by Scown, together with a falsity of his ultimate account in an effort to implicate Strbak.
Consideration
At autopsy, Tyrell was found to have over 70 identifiable bruises. Approximately 40 percent of those bruises may have been occasioned accidentally or in the course of the normal interactions of an active four year old child. The balance could not have been so occasioned. This conclusion follows from a consideration of the expert evidence as to the nature of those bruises and the parts of the body upon which they were found in such significant numbers. I accept that expert medical opinion.

Whilst the ages of the non-accidentally inflicted bruises were difficult to determine, the only logical and rational inference, on a consideration of the evidence as a whole is that the majority, if not all, of those bruises were inflicted after Tyrell’s discharge from hospital on 20 May 2009. That conclusion flows from the fact that Tyrell was in hospital for some four days and there is no recording of the presence of bruising, let alone significant bruising, whilst he was a patient in hospital. The length of that stay renders it improbable the relevant applications of force occurred prior to his admission and there is no basis to conclude that there would have been opportunity to apply those occasions of force to Tyrell whilst he was a patient at the hospital.
A consideration of the evidence as a whole also supports a conclusion that the majority, if not all, of those occasions of deliberate application of force to Tyrell occurred on or after 22 May 2009. Tyrell attended kindy on that day. No bruises were reported to have been visible on the occasion of that attendance. It is likely staff would have been attentive to observing any such bruising, having regard to the complaints raised by Strbak as to Tyrell being bullied by another child.
Importantly, the traumatic injuries resulting in Tyrell’s death, on the medical evidence, could only have been as a consequence of the deliberate infliction of violence to Tyrell’s abdominal region, with the initial blow being delivered no more than 48 hours before Tyrell’s death, and more likely at around 36 hours before death. That medical evidence, which I accept, also supports a finding that the deliberate infliction of the relevant violence to Tyrell’s abdominal region was after he had returned home from kindy on the afternoon of 22 May 2009.
The preponderance of medical evidence also supports a conclusion that Tyrell’s traumatic injuries were occasioned by the infliction of two separate episodes of force to Tyrell’s abdominal region, with the second application being no later than 24 hours before his death and as recently as within 30 minutes of his death.
Whilst Dr Kimble opined that Tyrell’s traumatic injuries were occasioned by the deliberate application of substantial force to his abdominal region on only one occasion, I accept and prefer the medical evidence to the contrary.
Further, whilst it is a possibility those separate episodes were inflicted by different people, I accept it is inherently improbable. I find both occasions of force were deliberately inflicted by the same person.
I find that the tear to Tyrell’s duodenum was caused by the deliberate application of a substantial degree of force to Tyrell’s abdominal area, with the mesentery tear occurring at a later time when Tyrell’s abdominal region was subjected to a second application of force. I accept that the force involved on that second occasion did not need to be of the magnitude of the blow which occasioned the duodenal tear.
A consideration of the evidence as a whole supports the conclusion that, from the time Tyrell left kindy on 22 May 2009, he was constantly under the supervision of either Strbak or Scown, or both, until the attendance of ambulance officers late on the evening of 24 May 2009. That being so, both Strbak and Scown had the opportunity to inflict the forces to Tyrell’s abdominal region, which were causative of his death. For much of that time, they were together. There were, however, occasions when each was alone with Tyrell, albeit for relatively short periods.
The Crown submits that opportunity is a relevant circumstantial factor in establishing, to the requisite standard, that Strbak inflicted the force causative of Tyrell’s death. The Crown relies, particularly, on that opportunity in the context of evidence from neighbours as to Strbak’s conduct towards Tyrell; the evidence from Cobb and Spicer of Strbak’s frustration and request for Tyrell to be collected on the day prior to his death; Scown’s evidence of directly observing two occasions of violence by Strbak towards Tyrell on the weekend of his death and the presence of the smiley face scar.
Although those pieces of evidence are relevant, I am not satisfied that any of them has sufficient reliability to ground the serious finding that Strbak inflicted the occasions of force to Tyrell’s abdominal region.
First, the evidence of neighbours as to Strbak’s behaviour towards Tyrell was general and incapable of supporting a conclusion that Strbak was physically violent towards Tyrell. Many of the accounts were, at best, of isolated occasions of verbal interaction. Some of the neighbours’ accounts lacked the specificity that would even allow a conclusion that the verbal interaction they heard came from Strbak’s unit. On many occasions, the neighbours readily conceded that the verbal interactions caused them no concern whatsoever.
Of particular significance is the fact that an assertion that Strbak was physically violent towards Tyrell is completely contrary to the evidence of Cobb and Scown to the effect that Strbak was a great mother, who had never shown any propensity for violence towards Tyrell, and the clear evidence of those having responsibility for his care at kindy.
That kindy had had responsibility for Tyrell three days a week for some months. There was no suggestion of any prior evidence of significant bruising or of any occasion of neglect. Staff members spoke of Tyrell as a well-adjusted, well-cared for child, who presented on each occasion in a clean and tidy way, with a well-stocked lunchbox. I accept that evidence. There is also no prior medical history suggestive of the application of physical violence to Tyrell by Strbak.
Although Cremin and Brodie provided more specific evidence of observed interactions between Strbak and Tyrell, their evidence lacked credibility and reliability. Cremin gave her account years after the events, after she had been specifically approached by Scown’s family and told of his innocence and after Cremin had herself become close to Scown. I do not accept Cremin’s evidence.
Brodie also first gave an account years after the events in the context of a woman and child she allegedly observed on the street and later in a shop. She described the child as having a “Downs Syndrome look”, which does not appear to bear any relationship to Tyrell’s appearance. I do not accept Brodie’s evidence.
Whilst Dyball gave evidence of hearing a scream from Strbak’s unit at around 3.30pm on 24 May 2009, I am satisfied that evidence cannot be reliably acted upon to support a finding that Tyrell screamed because Strbak inflicted physical force to Tyrell at that time. Dyball told police the next day she was unsure if it was Sunday and that, with the walls, the scream she heard could have echoed from somewhere else.[3] Scown gave evidence that on that afternoon there were other children in the unit complex making loud noises. In any event, any such scream could equally have been as a result of the application of force to Tyrell by Scown.
[3]Exhibit 99BT3-31/30.
The evidence of Cobb and Spicer, as to Strbak expressing an inability to handle Tyrell on 23 May 2009, also lacks reliability. Cobb displayed and voiced his ill-feeling towards Strbak when giving evidence. Whilst that is understandable in the circumstances, his lack of objectivity called into question the reliability of the evidence, especially where he has previously given different and conflicting evidence.
Cobb gave inconsistent accounts of this conversation with Strbak. Cobb previously expressly said that Strbak provided no reason or explanation for her request that he collect Tyrell. It is unlikely, if Strbak had made that statement, that Cobb could not then remember such an important aspect of the conversation.
Further, in evidence before the CCC, Cobb gave an account to the effect that Strbak, in the same conversation, expressed hesitation as to when he should come to collect Tyrell.
Spicer’s account was only provided to police after he had been spoken to by Cobb, who provided his details to police. The lateness of the provision of that information, in the context of the unreliability of Cobb’s account, renders Spicer’s account unreliable.
I do not accept that Strbak said “I can’t handle him” to Cobb on 23 May 2009. I do accept that Strbak telephoned Cobb on 23 May 2009 and asked him to collect Tyrell. However, that request of itself, even when considered with the other reliable evidence, is not persuasive of a finding that Strbak was so frustrated that weekend as to be physically violent to Tyrell.
I also do not find Scown’s account of witnessing Strbak inflict physical violence on Tyrell, on two separate occasions on the weekend of his death, reliable or credible. Scown was an unimpressive witness. He was argumentative and belligerent. He too has given many conflicting accounts on crucial issues.
Scown gave no account of Strbak inflicting physical violence on Tyrell on the weekend of his death when first spoken to by police. Scown gave no account of any frogmarching episode in the second interview either, although he did give an account of Strbak slapping Tyrell across the face. However, Scown’s account of that episode conflicted with his subsequent accounts.
In that police interview, Scown described the slap as a little slap for being cheeky whereas, in evidence, he described it as an open-handed slap, sufficient to cause bruising to Tyrell’s face. Scown gave a further account, during the CCC hearing, that he had no memory of the occasion of the slap but had been reminded of it by his ex-partner, and a further, different version in his s 13A statement in which he described the slap to Tyrell’s face as being sufficient to move his face, but said that it had occurred following Tyrell placing food to the side of his mouth and not swallowing it.
Those differing versions render his evidence of witnessing those events devoid of the reliability required to support a finding that Strbak occasioned the traumatic injuries, which resulted in Tyrell’s death. This is particularly so when regard is had to the fact that Scown had been specifically asked, in his first interview with police, what he had seen Strbak do to Tyrell in terms of discipline, in response to which he had referred to a little smack on the bottom, with no reference whatsoever to a slap across the face. Further, in evidence at the initial sentence hearing, Scown would not say the slap to the face was “an extremely hard hitting” slap and would not say it would cause an injury to Tyrell. I do not accept Scown’s evidence of witnessing either of these events.
Similarly, Scown’s evidence of Strbak having delayed obtaining medical treatment for Tyrell’s injured arm on 12 May 2009 is directly inconsistent with earlier accounts given by Scown to police. In his initial interview with police, Scown gave an account of Strbak telling him that they had to go to the hospital and that they had returned to Strbak’s house so that Tyrell could get a jumper. At no stage did he say that Strbak wanted to delay taking Tyrell for medical attention because she first wanted to obtain drugs. This material and differing account, in the context of Scown having good reason to embellish, if not lie, about occasions of Strbak’s lack of care towards Tyrell, renders his evidence on this aspect unreliable.
The preponderance of evidence does not support a conclusion that there was undue delay by Strbak in obtaining medical attention for Tyrell on that occasion. In coming to that conclusion, I have had regard to Cremin’s evidence to the effect that Scown had approached her, asking what she would do if one of her children had a broken arm. Cremin’s credibility on this aspect is materially affected by the circumstances in which she provided an account to police, many years after these events, after an apparent closeness to Scown and his family.
I do not accept Cremin’s account of that conversation as reliable or credible. Its unreliability was exemplified by Cremin’s recollection that, shortly after that conversation, Scown, Strbak and Tyrell left, returning about 30 minutes later with McDonald’s. There is an inherent improbability that Cremin would recall such detail and, in any event, it is inconsistent with the unchallenged evidence that Strbak took Tyrell to the hospital on that evening.
There is a further piece of evidence, supportive of a circumstantial case of Strbak inflicting physical violence on Tyrell. That evidence relates to the existence of a substantial bruise to Tyrell’s ear. Both Scown and Allan gave evidence of its presence. On the medical evidence, such a bruise is highly unlikely to have been occasioned accidentally. Strbak acknowledged the existence of a bruise to the ear in her interviews with police but attributed the bruise to events at kindy. The Crown contends that was a deliberately false account.
Whilst there is no objective evidence to support a finding that Tyrell was the subject of physical violence at kindy, there is support for a conclusion that Tyrell had complained about bullying at kindy. Strbak raised that issue with staff. Further, Tyrell told Allan that he had been pushed off a bike at school. Allan also said that both Strbak and Scown reported that Tyrell had received the bruise to the ear at kindy.
Absent any evidence supportive of a conclusion that Strbak deliberately inflicted an injury to Tyrell’s ear (of which there is none), I do not find the presence of the bruise to the ear persuasive of a conclusion that Strbak had occasioned the traumatic injuries to Tyrell’s abdomen.
In discounting the significance of this evidence, I accept that Strbak referred to bruising to Tyrell’s ear subsequent to the fall at kindy and that the bruising to the ear observed at autopsy is more recent, and inconsistent with being as a consequence of that event. However, those circumstances are not sufficient, absent other reliable evidence of physical violence by Strbak to Tyrell, to conclude that the bruise to the ear must have been occasioned by Strbak. The injury to the ear equally could have been occasioned by Scown.
In reaching these conclusions, I have had regard to the evidence of the presence of a smiley face scar on Tyrell’s ankle. The circumstances in which Tyrell received that scar are unknown. Whilst Cobb gave evidence of witnessing Strbak use a lighter on herself, in what might be said to be similar circumstances, it is significant that there is no suggestion, on that occasion, that Strbak caused herself any permanent scar. An examination of her body revealed no such scar.
Against that background, absent compelling evidence of a history of physical violence by Strbak to Tyrell (of which there is none), the presence of that scar is insufficient, either alone or when considered with the other reliable evidence, to support a finding that Strbak occasioned the traumatic injuries to Tyrell’s abdomen, resulting in his death.
In rejecting that there is any reliable and credible evidence supportive of a past history of violence by Strbak towards Tyrell, it is significant to note that, by contrast, there is reliable and credible evidence of past violence to Tyrell by Scown. Scown kicked Tyrell in the bottom when he urinated on the floor, with sufficient force to leave an observable bruise. I do not accept Scown’s evidence as to the lack of force on that occasion. The bruise was obvious enough to raise the concern of Tyrell’s grandmother and Strbak. I accept Strbak specifically raised her concern with Scown.
I also accept that Tyrell complained to Cobb of being struck on the head by Scown. That account had an inherent reliability, being given by Tyrell spontaneously. I accept Cobb specifically raised Tyrell’s complaint with Scown and that Scown’s response was to abuse and insult Cobb, without any denial of having inflicted that violence on Tyrell. That reaction was consistent with the nature of the text messages exchanged between Scown and Cobb, and of their relationship generally.
Allan gave evidence of another complaint by Tyrell, of Scown having inflicted violence to him, said to have been made on the evening of 24 May 2009, to the effect that Scown had punched Tyrell in the stomach. Such a complaint would assume significance, if reliable, as a punch to the stomach is one of the likely mechanisms of the traumatic injuries which led to Tyrell’s death. However, there is good reason to doubt the reliability of Allan’s account.
Allan first recounted this complaint by Tyrell in a statement given in 2014, some five years after the events. Further, on Allan’s account, Tyrell did not indicate when he had been punched by Scown and did not appear to be too upset, and Allan did not raise the allegation with either Scown or Strbak, and left Tyrell in the company of Scown when he departed the unit with Strbak. Those features seriously call into question the reliability of Allan’s evidence on this issue. There is an inherent improbability that Allan would leave an unwell Tyrell with Scown, if Tyrell had given such an account. I do not accept Allan’s evidence on this issue.
The Crown also relies on alleged downplaying of Tyrell’s deteriorating condition by Strbak, to her mother and Cobb, over that weekend. The extent to which it may be concluded there was a downplaying of Tyrell’s condition depends on the evidence to be accepted as to his condition at various times on that weekend.
In large measure, any acceptance of a downplaying of Tyrell’s condition depends on an acceptance of Scown’s evidence of the events of the weekend, particularly as the expert medical evidence was to the effect that the condition is insidious and the symptoms may be masked prior to the second application of force.
Having regard to the circumstances in which Scown has given differing and conflicting accounts, and the obvious benefit to Scown in now giving an account which implicates Strbak, I am only prepared to accept Scown’s evidence where it is supported in a material way by other independent evidence.
Further, whilst Scown gave evidence of specifically raising the need for medical assistance with Strbak, who rejected Scown’s suggestion, there is good reason to reject that evidence as neither reliable nor credible. Scown gave no such account when spoken to by police initially. Scown told police of a heated argument with Strbak on the Sunday evening over single parent payments but made no mention of his suggesting to Strbak that they take Tyrell to the doctor and of Strbak refusing to do so. Scown, in fact, gave an account that he had had a conversation with Strbak, in which Strbak said “if it gets worse I’ll take him to the doctors”. Such an account is completely inconsistent with his later assertion that Strbak specifically refused to take Tyrell to the doctor.
Diane Strbak’s evidence is also of significance on this issue. She said, when Strbak was discussing Tyrell’s condition with her at 4.07 on the afternoon of 24 May 2009 and raised an intention to seek medical attention if his condition did not improve, Scown was in the background saying there was nothing wrong with Tyrell; that he was just playing on it because he was in hospital; that he did not need a doctor; and that he “is just a pig”.
Scown accepted, in evidence, that he had on that weekend said Tyrell was being a sook and just wanted attention, but denied he expressed the words alleged by Diane Strbak on the day of Tyrell’s death. I did not find Scown’s denial credible. I accept Diane Strbak’s account of that conversation. The words attributed to Scown by her are entirely consistent with Scown’s previously expressed views that Tyrell was a sook and an attention seeker.
An acceptance of Diane Strbak’s account of Scown’s comments on the afternoon of Sunday, 24 May 2009, calls into question the reliability of Scown’s evidence that he expressed concern to Strbak as to Tyrell’s deteriorating condition on that day and raised with her the need to take Tyrell for medical treatment. Scown gave evidence that that conversation with Strbak occurred late on the afternoon of 24 May 2009. His expressed concerns are entirely inconsistent with the observations overheard by Diane Strbak that same afternoon.

Such a conversation would also appear inconsistent with Scown’s evidence as to his observations of Tyrell on the afternoon and evening of 24 May 2009. Scown said Tyrell chewed crusts of bread given to him by Scown and that, whilst Tyrell was vomiting, he was drinking substantially more than he was vomiting back up. Scown also said Tyrell ate two pieces of pasta for dinner that evening.
I do not accept Scown’s evidence that Scown expressed concern about Tyrell’s deteriorating condition and raised the need for medical assistance on the afternoon of 24 May 2009.
Scown gave the account of Strbak’s refusal to seek medical assistance to authorities for the first time in 2015 and subsequently in his s 13A statement. By that stage, there was good reason for Scown to embellish, if not deliberately lie, as to Tyrell’s state over that weekend. I do not accept Scown’s evidence that Strbak specifically refused to seek medical attention for Tyrell.
An independent account of Tyrell’s condition on both the Saturday and the Sunday of that fateful weekend, is derived from Allan’s evidence. He spent many hours in Tyrell’s company on Saturday, 23 May 2009, from before midday to after 5 in the afternoon. He also had Tyrell in his company in Tyrell’s final hours on the evening of 24 May 2009, from around 6.30 in the evening.
Allan’s evidence contains an account of a child who was unwell on Saturday, 23 May 2009, but not observably seriously unwell. Tyrell was interacting with them and, whilst there were occasions of vomiting and of lethargy, there was no suggestion of the vomiting of green bile. Such an account is consistent with the preponderance of medical evidence as to the likely masking of symptoms after the infliction of the initial application of force to the abdominal region.
Allan’s account is consistent with Strbak’s account to both her mother and Cobb, in her conversations on that day. Allan’s account also renders it unlikely that Strbak’s account of Tyrell playing with the curtains in the early hours of 24 May 2009 was false. That account was given by Strbak to her mother the next day, when discussing the need to repair the curtains. Scown also told police that Strbak had said Tyrell seemed fine because he had been playing with the curtains and that Strbak had to fix the curtains the next day because Tyrell had been pulling on them.
Such behaviour is not inconsistent with the preponderance of medical evidence, which noted the insidious nature of the condition caused by the first application of force to Tyrell’s abdominal region. The second application of force had not yet happened, meaning it is not medically impossible that Tyrell, whilst having suffered a traumatic injury, was behaving in a manner which masked his true symptoms.
Equally significant is Allan’s evidence as to Tyrell’s presentation when Allan arrived at the unit on the evening of 24 May 2009. Tyrell was a very different child. Allan noted very significant bruising on Tyrell, much more than he considered normal, and Tyrell was vomiting green bile.
There is good reason to accept his account of the vomiting of green bile. He gave that account very early in the police investigation. The neighbour who performed CPR also noted the presence of green bile. Further, his account of the vomiting of green bile at that time would, on the medical evidence that I have accepted, be consistent with the second application of force having been inflicted on the afternoon of 24 May 2009.
The fact that Tyrell was vomiting green bile on the evening of 24 May 2009 is entirely consistent with a child who, by that stage, was very unwell and whose condition had deteriorated significantly from the previous day. Nothing in Strbak’s conversations with her mother on that day or evening was suggestive of vomiting green bile, although aspects of the conversation are consistent with Strbak expressing concern. Strbak indicated an intention to seek medical attention if Tyrell did not improve in the ensuing hours. To that extent, it may be said that Strbak had indicated a deteriorating condition, albeit not of the magnitude apparent on Allan’s evidence.
There was nothing in her conversation with Cobb to suggest that Strbak was expressing concern about the need for medical assistance. However, Cobb did give evidence of Strbak telling him, in their telephone conversation on the evening of 24 May 2009, that Tyrell was “spewing everywhere”. That was different to her earlier account of Tyrell being “crook”. To that extent, it may be said Strbak had indicated a deteriorating condition.
Strbak’s inadequate response to Tyrell’s obvious deteriorating condition gives rise to two possible explanations. First, she had inflicted the traumatic injuries which resulted in Tyrell’s death, and did not want them to be detected by medical examination. Second, she was inadequately concerned about Tyrell’s condition, being unaware that Tyrell had had traumatic injuries inflicted to his abdomen, resulting in serious internal injuries.
In assessing these alternate scenarios, it is significant that, notwithstanding Allan’s clear account of Tyrell vomiting obviously green and chunky bile on the evening of 24 May 2009, Strbak does not ever refer to the vomiting of green bile by Tyrell in her various accounts to police. At best, there is reference to his vomit at one point being yellow in colour.
The lack of any reference to green bile would be consistent with a deliberate attempt to downplay to police the seriousness of Tyrell’s condition on the evening of 24 May 2009. An obvious explanation for that stance is that Strbak did not wish to provide a true account because she was conscious of Tyrell being seriously unwell as she had inflicted his traumatic injuries to the abdominal region.
However, another explanation is that Strbak had not understood the seriousness of Tyrell’s condition. That explanation is open as others in the unit also did not appear to recognise its seriousness. Allan’s account does not record any expression of concern by Scown for Tyrell’s condition or of the need for Tyrell to receive medical attention. Allan gives no account consistent with Allan having a concern that Tyrell was needing medical attention at that time.
If Allan had had such a concern, it is improbable he would have left the unit with Strbak. His behaviour is consistent with a conclusion that Allan’s perception was that, whilst Tyrell had deteriorated significantly from the previous day, his condition was not so serious as requiring medical attention.
Allan’s evidence as to his interaction with Tyrell on that Sunday evening is also consistent with Allan not having a concern that Tyrell required immediate medical attention. Allan said Tyrell vomited three or four times over the period he was present in the unit that evening. Whilst he estimated Tyrell had vomited 600 to 700 millilitres, Allan said he saw Tyrell drink about that amount of water. Allan also lay down with Tyrell for a period. He described Tyrell’s breathing as normal.
The Crown also points to Strbak’s lies to police about the true reason for her leaving the unit with Allan in the 30 to 40 minutes before Tyrell’s collapse. The Crown points to evidence of Strbak’s willingness to concoct a story to ensure that police were not aware that she was, in fact, sourcing cannabis. Whilst the Crown submits that those factors tell, in a material way, against an acceptance of Strbak’s account as reliable and credible, I do not find the lie and the circumstances of its concoction to be of significance in assessing whether the Crown has established, to the requisite standard, that Strbak inflicted the traumatic injuries causative of Tyrell’s death.
Strbak told police from the outset that she had left the unit. In the context of Tyrell’s condition, the reason for leaving the unit is of little moment. It is the fact that she left the unit when he was so unwell on the Crown case. Further, the telling of a lie in such circumstances is explicable as Strbak was sourcing illicit substances.
The lie, and the circumstances of its concoction, only assumes significance if the Court is satisfied of the reliability and credibility of Scown’s account of Strbak behaving aggressively and violently towards Tyrell, when she had not been able to consume cannabis. Having regard to the circumstances in which Scown first raised such a contention, I am not satisfied that Scown’s evidence on this aspect is reliable or credible.
Scown made no such assertion in his interviews with police. To the contrary, he described Strbak as a great mum, keen to establish a whole new lifestyle for her son. Scown also recounted that he had never seen any sign of physical abuse of Tyrell.
Against that background, the lateness of his evidence that, in fact, Strbak was aggressive and violent towards Tyrell when she had not had access to cannabis, in the context of his overwhelming interest in embellishing a version of events exonerating him and implicating Strbak, renders that evidence so lacking in substance as to be devoid of credibility. I do not accept Scown’s evidence as to Strbak’s changed demeanour towards Tyrell, absent cannabis use.
A further difficulty in accepting that the only explanation for Strbak’s account to police is that she inflicted the traumatic injuries causative of Tyrell’s death is that a consideration of the evidence does not provide an obvious window of opportunity for Strbak, on two separate occasions, to have inflicted traumatic injuries to Tyrell.
Scown gave evidence that he left the unit on four or five occasions that weekend. The first was on the morning of 23 May 2009, when he was downstairs for a period of time with Tyrell. The second and third were on 23 and 24 May 2009, when he travelled to the shops and was away for no more than 20 minutes. The fourth and fifth were when he travelled to the local telephone box in unsuccessful attempts to speak to his son. Scown was away for less than 10 minutes on those occasions. He last left the unit at around 11 on the morning of 24 May 2009.
The first occasion afforded no opportunity for Strbak to inflict the traumatic injuries to Tyrell’s abdominal region. Whilst the remaining occasions would have afforded Strbak the opportunity to inflict the traumatic injuries to Tyrell without Scown’s knowledge, the lack of evidence of any prior occasion of physical violence to Tyrell, together with no account by Scown upon his return of any obvious distress or upset on the part of Tyrell, calls into question the likelihood of such a scenario.
That likelihood is further challenged when regard is had to the opportunities for Scown to have inflicted the traumatic injuries to Tyrell when Scown was alone with Tyrell. Those occasions were in equal number and, on two of them, Tyrell sustained injuries whilst in Scown’s presence. On both occasions, Scown was quick to inform Strbak that Tyrell had fallen.
The first was after Scown had been downstairs alone with Tyrell on the morning of 23 May 2009. He was observed to have obvious injuries, consistent with the reported fall. The second was when Strbak left the unit on the evening of 23 May. Again, he had obvious injuries, consistent with a fall.
Whilst Tyrell’s account to Strbak, on those two occasions, was of a fall and was consistent with Scown’s own account of those events, it does not follow that Scown could not, on either or both occasions, have inflicted deliberate force to Tyrell’s abdominal region. There was an opportunity to do so, in the absence of Strbak.
In fact, the occasion Scown was alone with Tyrell downstairs (before the fall on the stairs on the return) falls within the window of opportunity in which it is most likely, on the preponderance of the medical evidence, that the first and more serious application of force occurred as it is some 36 hours or so before Tyrell’s collapse and there was no further opportunity of such an application of force throughout that afternoon as Allan was in Tyrell’s presence between 11.30 and 5.30 that day.
A lack of crying or complaint by Tyrell of a blow by Scown may be explained by Tyrell’s observed apprehension around Scown and Scown’s belittling of him as a sook, who needed to wear a dress.
Scown also had opportunity to inflict the second application of force on 24 May 2009 as he was in the unit continuously from 11am that day. Whilst Strbak was also present, the medical evidence suggests the force required on the second occasion was substantially less, rendering an application possible without Strbak’s knowledge.
Conclusions
Ultimately, a consideration of the evidence, accepted as reliable and credible, as a whole, supports a conclusion that, whilst Strbak had opportunity and did not give a true account to police of the nature of Tyrell’s vomiting on the afternoon and evening of 24 May 2009, Scown also had opportunity to inflict the traumatic injuries occasioned to Tyrell’s abdominal region and gave an account of Tyrell’s condition to police initially, not suggestive of any concern for immediate medical attention.
Any exclusion of Scown as the author of the traumatic injuries causative of Tyrell’s death, is very dependent upon an acceptance of his evidence of having observed Strbak inflict actual physical violence to Tyrell; of her aggressive behaviour when she has not used cannabis; and of her specific refusal to obtain medical assistance. As none of those aspects of Scown’s evidence has been accepted as reliable or credible, there is, on the evidence, no proper basis to exclude Scown as having inflicted the injuries.
That is particularly so when there is objective independent evidence that he has inflicted violence to Tyrell in the past, that he treated him in a belittling manner, that he was dismissive of Tyrell’s condition on the day in question and that Scown has given seriously conflicting accounts of events on that weekend, in circumstances where there is good reason for him to give a false account which exonerates him and implicates Strbak.
A finding, as a fact, that Strbak applied the force resulting in the traumatic injuries causative of Tyrell’s death, would be inconsistent with Scown’s initial account and Cobb’s account of Strbak being a good mother, who had displayed no prior violence in the context of disciplining Tyrell (other than a smack on the bottom or hand, consistent with Cobb’s own discipline practices) and the objective evidence of staff at Tyrell’s kindergarten to the effect that he was a well-loved, well-cared for, happy child, in respect of whom there had never been observed any evidence of potential abuse, let alone neglect.
That being so, and having regard to the substantial inconsistencies in Scown’s various accounts and the evidence of past violence by Scown to Tyrell, there is a real and reasonable likelihood that Tyrell’s traumatic injuries were occasioned by the deliberate infliction of violence by Scown to Tyrell.
The Crown has not established, to the requisite standard, that the traumatic abdominal injuries suffered by Tyrell, causative of his death, were inflicted by Strbak.
Findings
I find:
1.Tyrell’s death was caused by the deliberate infliction of blunt trauma to Tyrell’s abdominal region, delivered with force, on two separate occasions.
2.The first occasion of force occurred after the afternoon of 22 May 2009 and, more probably than not, was delivered during the morning of 23 May 2009.
3.The second occasion of force occurred on 24 May 2009 and, more probably than not, was delivered on the afternoon or early evening of 24 May 2009.
4.The two occasions of deliberate force to Tyrell’s abdominal region were inflicted by either Strbak or Scown.
5.The Crown has not established, to the requisite high standard, that the two applications of force to Tyrell’s abdominal region were delivered by Strbak.

Annexure A

Medical evidence
Pre-death

At 9.37 in the evening on 24 May 2009, emergency services received a call via triple zero from Scown. He reported that Tyrell had just woken up and had vomit coming out of his nose and mouth; that Tyrell had “gone all limp… like he’s not there”; that Tyrell looked like he was going to die; that Scown was doing mouth to mouth; that Tyrell had no pulse; that Tyrell was vomiting “green stuff”; and that Tyrell was not conscious. During that call, Strbak was recorded as asking Scown “what have you done to him” (Scown replied “I didn’t do anything to him”) and why Tyrell had wet hair. Strbak was also saying Tyrell was not breathing and was not conscious.
Prior to the arrival of an ambulance, a neighbour rendered assistance to Tyrell, who was observed to be wet, clothed in shorts and not moving. The neighbour had heard a male voice saying “there’s no pulse. There’s no pulse” and scream out for help. He saw a little boy lying in the hallway. His eyes were rolled back in his head. Scown said he was the babysitter and had been watching television, when he heard a coughing sound from the bedroom and saw the child on the floor. The neighbour and Scown performed CPR until the arrival of an ambulance.
An ambulance was dispatched at 9.40, and arrived at 9.45. Enroute, the call was upgraded from a sick four year old unconscious child to cardiac arrest with CPR in progress. Upon arrival, ambulance officers observed Scown in the middle of the road. They asked him to bring the child down to the ambulance. Scown appeared to be hysterical and panicky. He was not wearing a shirt. He said the child had been vomiting green stuff and “just become unconscious”.
Ambulance officers observed Tyrell to have open and non-responsive eyes, with facial skin being pale and cyanosed in appearance. Marks were observed around his forehead and on his arms, as well as dark rings around his eyes. Whilst they were performing CPR, Strbak came to the ambulance screaming “is he breathing?”. She said Tyrell had a fall in the shower on Saturday night but she kept him awake all night so he would not suffer from concussion and that he had been vomiting all day. She had just come home to find everyone in a panic, as no-one knew how to do CPR. Enroute to hospital, Strbak was pretty hysterical. She kept calling for Tyrell to wake up. She told him that his father was coming to see him soon.
Dr Krahn attended on Tyrell when he arrived at the Gold Coast Hospital at 22.05 on 24 May 2009. He had no signs of life and no pulse or other neurological response. Tyrell also had a very rigid abdomen. Dr Krahn declared Tyrell dead at 22.25 hours. There were no obvious reasons for Tyrell’s demise. Multiple bruises were recorded to the left groin, forehead, left cheek, chest, scalp, left upper ear cartilage and behind the left ear lobe, back of the neck, left shoulder and between the shoulder blades.
Autopsy
Dr Ong performed a post mortem examination on Tyrell on the morning of 25 May 2009. His report recorded that paramedics had noted Tyrell was in cardiorespiratory arrest (absence of breathing and heartbeat) and that blood tests recorded Tyrell’s blood count to be profoundly low. Tyrell had been treated for two injuries in the days before his death. The first injury, to his right elbow, was sustained on 12 May 2009 after a fall. The arm had been placed in a cast as a precaution. The second injury, a traumatic injury to his finger when the lid of a toy box fell upon it, had resulted in Tyrell’s admission to hospital between 16 and 20 May 2009 for cellulitis.
The post mortem findings included the presence of 70 identifiable bruises and abrasions on Tyrell’s body. The bruises were of varying colours. Histology showed varying inflammatory infiltrate in keeping with infliction at different times, possibly over the previous few days, including the perimortem period. Most of the bruises were small and oval in shape and not typical of accidental injuries. Some showed features consistent with being caused by fingertip pressure or pinching.

A notable bruise was located over the umbilicus (belly button) involving the rectus muscle and the peritoneum (inner lining of the abdominal cavity). The bruise was directly in front of the main internal finding on autopsy, that the duodenum (proximal small intestine) had been ruptured and was nearly transected and that the mesentery (membranis attachment of the intestines) was lacerated. The ruptured intestines had caused leakage of contents in the surrounding area, resulting in peritonitis.
There also was extensive bleeding into the abdominal cavity of approximately 20 per cent of total blood volume. Inflammatory change in reaction to that haemorrhage was of at least one to two days’ duration. The combination of haemorrhage and peritonitis resulted in shock and eventual death. Bleeding was also noted in the soft tissue around the lumbar vertebrae and within the intervertebral joints, consistent with a blunt impact or impacts against the abdominal wall, impinging abdominal structures against the spine, with a resultant laceration of and transection of the described structures.
Dr Ong opined that the abdominal injury was caused by blunt impact (e.g. by punches, impact with blunt objects), with severe force. Tyrell would have experienced extreme pain locally, with symptoms almost immediately. Dr Ong observed that the presentation of injuries in children could be delayed as a consequence of limited leakage of contents from a rupture of the intestines initially. Such a scenario would be consistent with vague presentation of vomiting earlier in the same day.
A major finding on autopsy was intra-abdominal haemorrhage. There was no generalised peritonitis. Peritonitis was limited to the site of the rupture. These findings were consistent with further acute trauma to the same site, resulting in the ultimate haemorrhage. It was possible less blunt force would be required for a second blow to have caused the haemorrhage. In that event, it might take a few hours before there was a manifestation of observable clinical symptoms.
Dr Ong also recorded the presence of a u-shaped scar on Tyrell’s left ankle, consistent with contact with the heated surface of a BIC cigarette lighter against the skin, similar to branding. The injury would have been inflicted at least four to six weeks earlier or possibly longer. A similar scar was present on the right leg.
The autopsy report recorded that death was caused by a loss of blood and peritonitis resulting from a rupture of the intestines (duodenum) and laceration of the mesentery, injuries consistent with blunt impact/s to the abdomen. There was also present numerous injuries which, collectively, could not be typical of accidental injuries.
In evidence, Dr Ong described the bruise near the rectus muscle as “actually quite indistinct”. It was only after he discovered an internal bruise in the underlying muscle tissue beneath the skin that he had a closer look at that skin area. The healing process around the bruise and at the site of the rupture was consistent with an injury having been sustained two days before or even more. Whilst the injury itself would be consistent with one application of force, the bleeding in the abdomen rendered it likely there was more than one application of force.
Tyrell had bleeding of approximately 20 per cent of his blood volume. A loss of about 25 per cent of blood is normally required before there are symptoms of a loss of blood pressure. The localised peritonitis in the vicinity of the leakage would cause pain and may further reduce blood pressure. Localised peritonitis would lead to vague symptoms of vomiting, mild pain and fever. The development of peritonitis to the extent observed in Tyrell may have taken longer than a day. The process of bleeding that volume of blood into the surrounding tissue would have taken a longer period of time than if there was evidence of bleeding from a major blood vessel. Whilst it might be as long as 24 hours, it was likely to be less than that period.
A spontaneous bleed could cause a rupture but the two different ruptures in Tyrell’s presentation rendered it more unlikely. It is unlikely a fall on the stairs would be the cause of the main injury, unless the child struck a protruding object, although such a fall could well cause rupture of an area that had suffered trauma previously. If there had been an earlier infliction of trauma, the application of further trauma no later than 25 minutes prior to Tyrell’s death, even a minor application of force, could be consistent with Tyrell’s presentation on autopsy.
Dr Ong opined that, whilst it is difficult to accurately date bruises, the appearance of the bruises observed on autopsy was consistent with most of them being sustained after Tyrell’s discharge from hospital on the Wednesday preceding his death. It is possible the only notable bruise was suffered as long as 36 hours before death. Photographs taken at post mortem might not necessarily accurately reflect the visible state of the bruise immediately before death. Bruising may become slightly more prominent and slightly larger in dimension during the post mortem process. Dr Ong had identified lineal bruises not visible when Tyrell was first examined on 25 May 2009, when he re-examined Tyrell on 26 May 2009.
It was possible that the initial laceration of the duodenum was contained within the soft tissues, such that there may be fairly minimal or weak abdominal pain initially, with some vomiting and fever. The second application of force happened, possibly, a couple of hours before death but may have been even as close as 25 minutes before death. Vigorous pushing on the stomach during the resuscitation process could severely aggravate internal bleeding. Vomiting of the colour green would be a symptom if there was internal bleeding and possible rupture.
The presence of iron pigments in Tyrell’s urine was consistent with a healing process of two or three days or even longer. The histological examination of a bruise to the right frontal region of Tyrell’s forehead was consistent with that injury being about six hours to a day old, may be up to 48 hours but probably less than two to three days old. A discolouration to Tyrell’s right ear was indicative of moderate blunt force, such as a slap or pinching when the ear was pulled. Injuries to the child’s left upper cheek were consistent with a blunt object rubbing against the skin, such as fingernails. Those injuries were red, consistent with being hours before death.
A bruise behind Tyrell’s left ear was consistent with a healed injury, indicating it was older than the other bruising observed on his head area. Two bruises, semi-circular in shape, on Tyrell’s main upper back had the classic appearance of pinching between two fingers, each causing a separate bruise. An area of discolouration in the left loin region was consistent with blunt force trauma. That injury was fairly focused and was less likely to be a slap. Injuries on Tyrell’s left arm were consistent with fingertip pressure having occurred between three and six hours prior to death. Injuries on the wrist and palm were consistent with the child having been grabbed by a hand. Injuries noted on Tyrell’s chest were not recent and could have been inflicted up to a day or two prior to death.
Dr Ong said an injury identified just above Tyrell’s genitalia was likely to be inflicted hours to days prior to death. The large bruise located near the umbilicus, or belly button, did not have any hemosiderin laden macrophages, suggestive of an injury not as old as two or three days. The coincidence between the site of that bruising and the injuries to the duodenum and mesentery and haemorrhaging seen at the L2 and L3 vertebrae meant it was very likely the bruising was related to those injuries. A consistent mechanism causing all of those injuries could be single blunt force trauma, such as a single punch or kick to the child’s stomach. However, Dr Ong’s preferred explanation is two episodes of traumatic force to the same region at different times.
Dr Ong noted that, although Tyrell had a very low haemoglobin level on the night of his death, five days previously at the same hospital he had not been observed to have abnormal haemoglobin levels. Those readings imply haemorrhaging for at least four to six hours and, perhaps, longer. If there had been a really acute bleeding all at once, the haemoglobin will remain at the same level as the body has not had time to replace with other fluids within the bloodstream.
Dr Ong opined that vomiting is a fairly non-specific symptom but repeated vomiting of a green substance during the day of Tyrell’s death, together with an express desire to have liquids, lethargy and pain in the stomach was symptomatology consistent with the pathological findings at autopsy. If Tyrell had been observed holding a curtain, swinging like Spiderman, at 1.30am on the morning before his death, it was probable that any bleeding of the rupture had not progressed and was still in its early stages.
Dr Ong accepted that bruising observed on the chest could be occasioned during resuscitation but said if a palm had been applied, you would normally receive a diffused haemorrhage by way of injury. The bruising to the hand could be consistent with medical procedures on Tyrell’s hospitalisation between 16 and 20 May, as he received an intravenous drip in the vein of his right hand on that occasion.
Dr Little peer reviewed Dr Ong’s report. In her opinion, Tyrell’s death was caused by at least two, maybe more, episodes of blunt force trauma to the abdomen. The injury to the duodenum may have been from a small perforation initially, with an extension of the injury shortly prior to death. If the duodenum had been almost transected for several days, she would expect much more severe inflammation than was present at autopsy. The degree of blood loss probably would not cause death alone. The presence of bowel contents in the abdominal cavity would increase the amount of shock caused by the haemorrhage to a degree sufficient to cause death.
Dr Little opined that abdominal injuries in children can be insidious and do not cause obvious symptoms initially. Typical symptoms and signs when present included abdominal pain and distention, vomiting, fever and non-specific complaints, such as general discomfort and unhappiness. A lack of specific complaints in the days prior to death does not exclude some injury being present during this period. An escalation of the symptoms shortly prior to death would suggest significant progression of the intra-abdominal pathology at that time.
Dr Little favoured the scenario of at least two separate episodes of blunt force trauma because there were present some acute inflammatory cells and quite a large amount of haemorrhage in the abdomen, which appeared to be recent. That bleeding came from the tear in the mesentery. A tear in the duodenum does not cause much bleeding, and will not cause a huge amount of symptoms initially. The mesentery tear that caused the bleeding is likely to have occurred much closer in time to death. It was most likely that the second application of force caused that tear. Whilst an attempt at resuscitation, which resulted in a push on Tyrell’s stomach quite vigorously, could cause an aggravation to the earlier injury, there had to be a reason why the child required resuscitation in the first place. Further, acute inflammation suggested a more recent injury, which would take anything up to half an hour or so to occur.
Dr Little said Tyrell’s haemoglobin level was consistent with a chronic haemorrhage over a period of time, but also consistent with an absolutely catastrophic haemorrhage. A patient may die within an hour or so and have a really, really low haemoglobin. Such a scenario usually arises from a massive acute haemorrhage in a large blood vessel. The blood vessels in the mesentery are not particularly large. It was going to take a period of hours. The child would gradually go downhill. The timing of the second application of force, is more hours than minutes.[4] Dr Little did not think it would be prior to half an hour.
[4]Exhibit 43A, Transcript 1 – 59/30.
Other medical evidence
Dr Kimble prepared a report, dated 19 March 2014, for the coroner. Dr Kimble opined that Tyrell died as a result of internal abdominal injuries, leading to the development of untreated septic shock and hypovolaemmic shock from blood loss and progressive dehydration from vomiting and not being able to drink, as a consequence of severe blunt force trauma to Tyrell’s abdomen. That conclusion was a consequence of the findings that the abdominal injuries all lay in one line from front to back. Severe focus force would be needed, consistent with a kick or a punch.
Dr Kimble further opined that the sheer number of bruises identified at post mortem was way in excess of an acceptable number, associated with normal four year old behaviour, with the majority being unable to be explained by previous recorded falls in day care, injuring his finger in the toy box, falling up a set of stairs, falling in the shower and/or during resuscitation. The pattern of bruising was consistent with non-accidental trauma. For example, bruising to the ear is usually caused by someone pulling a child by the ear with excessive force. The trauma causing these bruises occurred after discharge from the Gold Coast Hospital on 20 May 2009.
The injured duodenum was high in the abdominal cavity and surrounded by other structures, which may have caused the more localised peritonitis, thus potentially delaying septicaemic shock and death. Tyrell would have lost his appetite and would not have been able to keep any food or water down. Vomiting would have started within hours of injury and would have been progressive until death. The colour of the vomit would have been stomach contents at the start and become bile stained later. Tyrell would become very dehydrated and hypovolaemmic shock would have contributed to his death.
In Dr Kimble’s opinion, as Tyrell was at kindy on 22 May 2009 and the staff would have noticed if he had peritonitis if the injury had been sustained prior to that date, the injury would have happened after that date. Pain would have been present from the time of the trauma and emotional distress would be significant. Clinical chemical peritonitis would have occurred within six to 12 hours post perforation, causing abdominal pain and tenderness. Significant bacterial peritonitis would have been present at 18 to 25 hours post perforation, with the development of a fever at around the same time which would have persisted until death.
Based upon his conclusion that the abdominal injuries had been present for a period of 24 to 36 hours, Tyrell would have been very miserable, with extreme abdominal pain and very unwell, a few hours after perforation until death. Every little movement, including breathing and vomiting, would have caused extreme pain. Tyrell would no longer be able to walk after 12 to 24 hours. Any lay person seeing that child would have known the child was very sick and in need of medical care. Tyrell would not want to eat, and his gastrointestinal tract would not be physically capable of taking and digesting food. His abdomen would also be a little swollen and he would respond when touched in that area, trying to push away a person’s hand.
If there had initially been a small tear to the duodenum followed by a more significant injury 12 to 24 hours, it was possible that Tyrell’s symptoms after the small tear would be different. However, the presence in the peritoneal cavity of inflammation, together with the significantly low haemoglobin, were consistent with the actual injury to the abdomen happening as a consequence of one blow quite some time before death, about 36 hours. Tyrell would have had pain and discomfort at the beginning and progressively worsened. That scenario would be inconsistent with Tyrell swinging like Spiderman off a curtain at 1.30 on the morning of his death and any suggestion he was ingesting food on the Sunday afternoon. It would also be extremely unlikely that he would have been able to talk or walk an hour and a half before the calling of any ambulance.
Dr Kimble opined that the scar located on Tyrell’s inner left ankle was clearly caused by a cigarette lighter and consistent with the contact borne of mid to deep dermal partial thickness. The injury was at least several days old, probably older, potentially even up to a year or two old.
Dr Sullivan also provided a report to the coroner. She opined that 28 of the 70 bruises identified at autopsy had explanations for their presence not related to any abuse. Four year old children are quite active and liable to bruise during normal activities. However, the number of bruises located on Tyrell was unusual, as were the positions of many of those bruises. Accidental bruises are usually small, whereas Tyrell had several large bruises. Tyrell also had multiple bruises to several body sites indicative of repeated impact. Those bruises did not have any distinguishing shape indicative of a likely cause, such as belt marks or hand slaps. Tyrell’s medical history did not support any major medical cause to explain his bruises. His blood count was normal on 16 May 2009 and no excessive bruising was noted during that hospital admission.
It was likely that the majority of the bruises observed on Tyrell at autopsy occurred after his discharge from hospital on 20 May 2009. It was implausible the bruising occurred on a single occasion, having regard to their number and widespread distribution on multiple body regions and body planes within those regions. A fall from play equipment on 11 May 2009 was unlikely to account for any bruising to the ear. Those areas rarely are injured in accidental injuries. A fall on the stairs on 23 May 2009 was highly unlikely to have been the cause of Tyrell’s duodenal perforation. The unobserved fall in the shower on the evening of 23 May 2009 also could not account for the number of separate bruises found at autopsy.
Dr Robertson, a specialist forensic pathologist, provided a report to police on 20 May 2015. In her opinion, any initial intra-abdominal injury was inflicted sometime on 23 May 2009 or as early as Friday, 22 May 2009. She could not exclude the possibility of further blunt trauma in the hours before Tyrell’s death, resulting in acute deterioration of the child’s clinical condition. The injuries would have caused Tyrell to be generally unwell, possibly lethargic, vomiting and suffering abdominal pain. If the initial abdominal injuries had caused the tears noted on autopsy, Tyrell would have been more unwell and probably would not have survived as long. For that reason, it was more likely there was a secondary application of force. Dr Robertson agreed the haemoglobin level was extremely low, but opined it did not give any indication of the likely timing of the last traumatic episode. Replacement of levels of blood with other fluids can occur in a matter of minutes to hours.
The nature of the fatal injuries was not consistent with infliction in an accidental manner. The injuries would have required blunt trauma to the abdomen with considerable force. Tyrell also had multiple superficial injuries, unlikely to have been sustained in the normal activities of a four year old child. Lasonil ointment, a preparation applied to aid in the healing of bruises, was found at the scene. It was possible the ointment had been used to hasten the resolution of the multiple bruises on Tyrell’s body.
Professor Duflou provided a report on 27 October 2016, at the request of Strbak’s legal representatives. He noted that Scown had given an account of Tyrell vomiting and not eating well after leaving hospital on 20 May 2009; vomiting on the morning of 23 May 2009; falling on a set of stairs that afternoon and in the shower that evening; and vomiting a number of times on 24 May 2009, including after having dinner, before vomiting again, commencing gurgling and being found unresponsive prior to the commencement of CPR and calling an ambulance.

Scown said he was charged with Tyrell’s murder the next day. He did not recall telling police at that time about a conversation he said he had with Strbak on the chair at the police station, in which Strbak said she was going to get done with neglect. Scown denied that he ever struck Tyrell over that weekend. He did not strike Tyrell’s stomach area with a fist or foot that weekend. He did not ever see Strbak strike Tyrell in the stomach area.
In cross-examination, Scown accepted that, when he spoke to police at 3.02am on 25 May 2009, he was doing his very best to tell the truth and was not looking to leave anything out or to mislead. He accepted he was also spoken to by police at 5.59pm that same day. Not long after, police charged him with Tyrell’s murder. He accepted that at the time of those interviews, his memory was better as to what had occurred in the preceding days.
Scown accepted that, in his interview with police at 3.02am, he described Strbak as a great mum. Nowhere did he make any differentiation between when she was stoned or not stoned. He also told police that if Tyrell wanted a toy or love or care, he always received it from Strbak. He volunteered to police that Strbak “moved up here originally because they had a bit of an ex. Her ex used to – she doesn’t say it, like, she won’t come out and say it, but her ex used to hit her around a bit and stuff like this. That – and to give you an idea of what sort of mum she is, like she really is, she turned around and left her whole lifestyle down there and everything like that basically to get Tyrell up here and to a new school – into a good school, to get him away from all the trouble”.[44]
[44]Transcript 2-57/20.
Scown accepted that descriptions of Tyrell at kindy as happy, outgoing, well groomed, with a full lunchbox prepared with care and attention was an accurate description of what Strbak was doing for her son. However, Scown said Strbak was annoyed she did not get a phone call from kindy. Scown accepted he did not observe any type of neglect by Strbak prior to the emergence of bruises and injuries on the weekend of Tyrell’s death. He never saw any physical sign of abuse of Tyrell. He had seen nothing of the sort of bruising observed on Tyrell at autopsy, but said he was not looking. Scown did not accept he caused those bruises.
Scown agreed he had told the CCC hearing that he had moved into Strbak’s unit after being evicted from his unit and having fallen out with his family, such that his life was devastated at that point in time.[45] Strbak was prepared to take him in for a short period. Scown denied he had a very serious anger problem. His father’s partner had taken out a domestic violence order against him after a drunken argument at their house, with his father. He had pushed his father’s partner to the floor. He could not recall saying to her “shut up slut, I’ll kill you” but said he was drunk.[46] Scown did not accept his father’s partner had a child in her arms at the time.
[45]Transcript 2-63/45.
[46]Transcript 2-67/30.
Scown accepted there was an occasion when he pushed and punched Allan in the head following a dispute over money for drugs. He accepted he had previous convictions for assaulting police and assault occasioning bodily harm; and assaulting a security guard and for a further offence of assault occasioning bodily harm in 2014, when he punched the victim in the head, knocking him unconscious and, when he regained consciousness, threw a beer bottle which smashed near the victim’s head. Scown accepted that the following evening, he had obtained a baseball bat and smashed the back windscreen out of a vehicle.
Scown accepted that in 2019, he was sentenced for unlawful possession of a weapon, unlawful use of a motor vehicle, stealing, dangerous use of a motor vehicle, driving whilst intoxicated and multiple counts of fraud, involving the stealing or receiving of credit cards belonging to other people. He was sentenced in respect of those offences and released on parole, which he breached by failing a drug screen.
Scown accepted he had received a significant discount on his sentence for manslaughter, by reason of his undertaking to give evidence against Strbak. He also accepted that, in speaking to the prosecutor, he had asked whether, if he gave evidence this time, it might help him to obtain parole early.
Scown accepted that the charge of murder first preferred against him did not proceed after a successful no case submission at committal hearing. On 11 May 2015, he was approached by police whilst he was in custody for other matters. He gave evidence at a CCC hearing on 9 July 2015. On 28 September 2017, police questioned him about a number of telephone calls he had made from prison. He had made his s 13A statement that same day. He was sentenced for manslaughter on 14 October 2017.
Scown accepted there was an occasion, when he was living at the Biggera Waters unit, when he was searching his car for a missing phone. He was cleaning the car out, looking for the telephone. He did not accept he was out of control at the time, swearing loudly, ripping things out of the car, including throwing Tyrell’s booster seat from the back of the car. He denied Tyrell was cowering behind his mother.
Scown accepted there were four occasions, in the limited time he had with Tyrell, when Tyrell received an injury in his company. First, when he kicked Tyrell on the bottom for urinating, causing a bruise to his cheek. Second, when the toy box lid crushed Tyrell’s finger. Third, when Tyrell fell on the concrete stairs. Fourth, when Tyrell fell in the shower. Scown said he made Strbak well aware of each episode, straight away. It was not hidden. Scown did not accept he was the only adult present on each of those occasions. Scown accepted that on none of those occasions was Strbak in a position to see what happened, but said she was very close by on each occasion.
Scown accepted that, in his first interview with police, he described the first occasion as “he just pissed all over my floor and I turned around and I’ve given him a kick up the arse” and that, when asked if he had left a bruise, he had replied “not at all, not at all”.[47] Scown did not accept that that version was not true. There was no bruise present until the next day. That was when Tyrell told Diane Strbak that Scown had kicked him in the bottom. Scown accepted that, in that interview, he said he kicked Tyrell “not hard” and that Strbak was “crook about it” when she found out. Scown said he meant Strbak was sick. Strbak just said “don’t do it again”.[48] Scown did not accept he lied to police when he said, in response to a question was there any bruises, “no, not at all, not at all”. Scown said he saw the bruise the next day.
[47]Transcript 2-79/5-35.
[48]Transcript 2-80/25.
Scown accepted he told police in that interview that Tyrell had started crying and said “I need to go to the toilet” and “I’ll wait, I’ll use the toilet when I get to my place. I’ll wait until I get to my place”. Scown denied his response, because Tyrell would not go to the toilet when he told him, was to kick him hard enough on the bottom to leave a bruise. Scown said there was no reason for Tyrell to wee on the floor. Scown said that was the only time he ever hit Tyrell. Scown accepted he had previously said in evidence that Strbak had showed him the bruise and was asking him what had happened. He denied that, when he told her what had happened, Strbak was furious and threatened to leave.
Scown denied he had ever struck Tyrell on the head. He denied Cobb had ever raised with Scown that Tyrell had said Scown kept hitting Tyrell in the head. There had been an argument with Cobb, in which Scown had said “you’re a shit father. You’re a black boong. I’m fucking your missus now”. They were arguing back and forth over text messages because Scown was sleeping with Strbak and Cobb did not like it. Scown referred to Cobb as a “black boong” to “piss him off”. He denied it was because he was racist or had a difficulty with indigenous people.[49] Scown accepted that, in one text message sent on 18 May 2009, he said “any time, wait till you come. The only thing that will be fucked up is you”. He meant he would punch Cobb to the head. Nothing came of it. Scown agreed he would be “smart arse” when Strbak was on the telephone to Cobb. He would sing racist songs to “shit stir” Cobb.[50]
[49]Transcript 2-85/40.
[50]Transcript 2-88/5.
Scown accepted that, in his first interview with police, he said that Tyrell’s finger injury occurred after he had wedged a little car in his toy box lid because Tyrell had his arm in a sling “so he could put his hand and, like, put toys in”.[51] Scown said he had not realised the lid had a hinge mechanism that would allow it to stay up. He did not accept he was aware it had a heavy wooden lid and that what he did involved a risk when dealing with a child with one arm in a sling. Scown denied seeing the lid fall on Tyrell’s finger. He told police in his first interview that the lid had caught the corner of Tyrell’s finger and, in response to a question “did you see that happen?” had replied “yes I did”.[52] Scown meant he saw the toy box lid on his finger, not that he saw the toy box lid fall down.
[51]Transcript 2-89/40.
[52]Transcript 2-91/20.
Scown accepted that Tyrell was taken to the hospital that day. Whilst he rang a medical service the day after, that was not because Strbak was reluctant to provide Tyrell with medical attention. Scown accepted he told police, in his first interview, that Strbak took Tyrell straight to the doctors that day after the lid fell on Tyrell’s finger; that the next day Tyrell’s finger doubled in size and they went to take Tyrell to the doctors but the doctors was closed; that they went to a pharmacy and the pharmacist said if it got worse to go to the hospital; and that, when they returned home, they rang a medical service which came to the house.
Scown accepted he was not saying Strbak did not want to seek medical help on that occasion. When asked why he had given an account to the CCC that he rang the home doctor because Strbak did not want to take Tyrell to the hospital, Scown replied that he was referring to Strbak not wanting to take Tyrell to the hospital on the Sunday of his death. He denied he was making things up as he went along. Scown accepted he went on to tell police that, when they went to the hospital for Tyrell’s finger, Strbak stayed with Tyrell the whole time, only going home to have a shower.
Scown accepted that, in his initial interview with police, he said that, after Tyrell had been injured at kindy, Strbak had told him Tyrell had fallen and had to go to hospital; that they went back to Strbak’s house so Tyrell could get a jumper; that he noticed Tyrell’s arm was swollen and he made a little sling for Tyrell; and that bruises were coming through the next day, including a bruise on the right ear all behind the right lobe.[53] Scown accepted that, at no stage in that interview, did he say Strbak wanted to delay taking Tyrell for medical attention because she first wanted to obtain drugs. He denied that was because what he was now saying was not true.
[53]Exhibit 130.
Scown did not accept that the reason he spoke in the background of Strbak’s telephone calls with Cobb was to hurt their parenting relationship. He denied Strbak was angry when he telephoned Cobb about the hurt arm because she wanted to tell Cobb once she had been to hospital. Scown said Strbak wanted to wait until she had obtained drugs from Archer. Scown said he spoke to the neighbour and then telephoned Cobb. He did not accept that these matters escaped his mind when speaking to police on 25 May 2009. Scown said it was “a stressful time”.[54]
[54]Transcript 2-106/7.
Scown accepted that, in his first interview with police, he volunteered information about Tyrell falling up the stairs and falling in the shower, when being asked about an explanation for various bruises found on Tyrell’s body. He denied he did so in an attempt to cover up what he had done to Tyrell. He told police that Tyrell ended up with a couple of bruises on his torso and chest and bruising to his legs from the fall on the stairs. Scown said that Tyrell had bruises on his abs, chest and legs, as well as his torso. He accepted he specifically said that Tyrell landed on his stomach and ended with a couple of red marks on his chest, but denied he was anxious to tell police about possible ways Tyrell might have hurt his stomach.
Scown accepted he was asked by police how Tyrell suffered significant injuries to his abdomen and had replied that Tyrell “had two big falls”. One fall was the incident at kindy. The second was a fall in the shower. He denied he was telling police about these various incidents to cover up what he had done. He accepted he told police Strbak “got up” him for leaving Tyrell unsupervised in the shower.
Scown accepted he had previously described Tyrell as a sook and an attention seeker. Scown would say to Tyrell there was no need to sook and, if he was sulking, “what do you want to wear a dress?”.[55] Even on the weekend when Tyrell was unwell, Scown had said Tyrell was being a sook and just wanted attention. Scown denied that on the Sunday of Tyrell’s death he had said, whilst Strbak was talking to her mother, that there was nothing wrong with Tyrell; that he was playing on it because he had been in hospital; and that Tyrell did not need a doctor “he is just a pig”.
[55]Transcript 2-111/40.
Scown accepted he told police, in that initial interview, that when he showered Tyrell on the Saturday night, he saw no bruises other than the obvious new red marks from the falls. Scown accepted that, on the following morning when Strbak showered Tyrell, she showed him a big bruise below Tyrell’s umbilicus. Strbak was “freaking out about it”.[56] She asked Tyrell where the bruise came from in front of Scown. Tyrell gave two stories within five minutes.
[56]Transcript 2-116/35.
Scown accepted that, in his evidence at the CCC hearing, he said that by Sunday there were only a couple of bruises visible, being a bruise on his groin, one on his forehead and one on his shoulder. Scown said there was also a bruise on the left hand side of Tyrell’s face. He accepted he did not describe that bruise at all when giving evidence to the CCC. He said he told police about that bruise. Scown denied he caused the bruise on the groin. He denied he had told Tyrell not to say anything. Tyrell had told Cobb that Scown had been hitting him in the head. Tyrell told his grandmother about the kick in the bottom straight away. Tyrell was not scared of him.
Scown accepted that the fall on the stairs happened midmorning on 23 May 2009, about 36 hours before his call to the ambulance service and that the fall in the shower happened 26 to 29 hours before his call for the ambulance. He accepted he told police in his initial interview that Tyrell “got crook overnight”;[57] that Tyrell had a couple of vomits over that night; and that Strbak was concerned and checking him, caring for Tyrell as you would expect a mother to care for a child overnight who had vomiting episodes. Scown accepted he told police that, at one point, Strbak said Tyrell seemed fine because he had been playing with the curtains and that Strbak had to fix the curtains the next day. Scown agreed he told police that the next morning Tyrell was not 100 percent but he had described him as being maybe 70 percent.
[57]Transcript 2-121/10.
Scown also told police that he went to the local supermarket at about 11 that morning and was away for approximately 15 minutes. Scown accepted he had told police he went to the shops twice, once on Friday and once on Sunday, but said, in evidence, that he recalled going to the shops on the Saturday, “roughly 36 hours before, too, your Honour when I went down to the shops where Heidi was left alone”.[58] He denied he was making his evidence up as he went along.
[58]Transcript 2-122/32.
Scown accepted he told police, in that interview, that when he returned from the shops on Sunday, Tyrell was having some pieces of bread with crusts on it, and kept the food in his mouth for an extended period of time. Scown told police that Strbak said, at this point, “you know you’ve got to eat food properly, don’t stick it all in” and that Tyrell vomited a couple more times but “for the amount of water that was going into his body, it was like he’d probably drunk two cups, you know, two cups of like 300 ml of water in it, but had probably vomited up, you know, probably two mouthfuls”.[59] Scown accepted he told police that Tyrell was vomiting a “biley looking colour” but had said it was in a red bucket, which made it look a bit darker.
[59]Transcript 2-123/45 – 124/5.
Scown accepted he also told police that, later that afternoon, Tyrell sat on the balcony before Strbak cooked pasta for dinner; that Tyrell drank three cups of water and only about a quarter of a cup came back up so they thought “he must be a bit better”; that Tyrell ate two pieces of pasta but then said he was going to be sick and vomited again after dinner; and that Scown had been feeling Tyrell’s belly throughout the day because he had had the fall the day before. He was referring to was the fall in the shower. Scown said he was checking his belly because Tyrell could hardly sit up properly. He saw no interaction with Tyrell that day that gave him any concern. He agreed he told police that Strbak came back from the phone box that evening after a pretty upsetting call from Cobb, who had said “I’m taking him off you”.
Scown accepted that he had told police, in his first interview, that Strbak and Allan said “well, we will just go over and see Brad” because they had no cigarettes. His recollection was that they went to Archer’s house to obtain cannabis. When asked why, on the night, he would say to police they went to Brad’s for cigarettes, Scown said they probably told him when they came back. He denied he was lying to police to cover up the fact there was cannabis involved on that night. Scown said “it was probably when Danny came back because he had a few cigarettes your Hon – your Honour. This is – I am only speculating on it and then he may have told me on the way to the hospital that they went and seen Brad. That’s the – that’s – but I can’t remember saying that they went to Brad’s because I know the reason why, because we had no pot. We had no pot, your Honour. That’s – that’s why they were going – going out to try and get some pot”.
Scown accepted he was sentenced on the basis of an agreed schedule of facts which included an assertion that “at approximately 8.30pm Strbak asked Allan if he wanted to go for a drive to their brother’s to get cigarettes. They then left the unit together. According to Allan, Tyrell was left sleeping in the bedroom and Scown was on the couch in the lounge room. Approximately 30 to 45 minutes later Scown called 000”.[60]
[60]Transcript 2-129/45.
Scown accepted that, in his evidence at the CCC hearing, he had asserted that he had telephoned Cobb on the Sunday evening to tell him that Tyrell was sick and that Strbak snatched the phone off him. Scown said that was a mix up. The only time he rang Cobb was after Tyrell fell at day care. Scown denied it was a lie.
Scown accepted that he was in the unit for the whole of that weekend, other than travelling to the telephone box twice in unsuccessful attempts to telephone his son and going to the shops. The trip to the telephone box took only a matter of minutes and the trip to the shops on each occasion took 15 to 20 minutes. The last trip he took from the unit was at around 11 on Sunday morning, 24 May 2009.

Scown accepted that, on the Sunday afternoon, he had a heated verbal argument with Strbak over single parent payments. It was after that argument that he suggested to Strbak that they take Tyrell to the doctors and she replied “I’m not fucking dropping everything just because you said so”. Scown accepted that, in his second interview with police on the evening of 25 May 2009, he spoke about that heated argument but did not at any time suggest that he had said that Strbak should take Tyrell to hospital and she had said no. Scown said he did not tell the police officer because he had been up all night and he did not realise he was going to be charged with murder.
Scown accepted he did tell police, during those interviews, that on that Sunday afternoon he heard children screaming out from other units in the complex. He accepted he did not tell police, in either interview, anything about Strbak frogmarching Tyrell to his room. Scown told the CCC, and also recorded in his s 13A statement, that Strbak frogmarched Tyrell because she was angry at Tyrell for vomiting when he was sick. Scown said there was no marijuana in the house and Strbak was frustrated “simple as that”.[61] Scown accepted that, when giving evidence at the previous sentence hearing, he said he would not say that the slap to the face was “an extremely hard hit” and he would not say it would cause an injury to Tyrell.
[61]Transcript 2-138-34.
Scown accepted that, in his first interview with police on 25 May 2009, he did not say anything at all about Strbak having slapped Tyrell. In his second interview, he told police he did see Strbak hit Tyrell; that Tyrell was getting a bit cheeky and got a little bit of a slap across the face. Scown said he thought it was vomiting. It was a long time ago. He did remember a slap. Scown accepted that, not only had he told police in 2009 that it was a little slap for being cheeky, he had also described Strbak as a “fucking good mum” with the only thing she had being “an ex that rings up and harasses the living fuck out of her”.[62]
[62]Transcript 2-145/10.
Scown accepted that, in his s 13A statement made on 6 October 2017, he said Tyrell had food in his mouth and was putting it to the side and not swallowing it and that Strbak raised her open right hand and slapped Tyrell across the left side of his face, causing Tyrell’s face to move but Tyrell was not knocked off the chair or knocked unconscious and did not cry after being slapped. When asked which of those accounts was the truth, Scown replied:
“He got the slap across the face, your Honour, alright. I may be a bit hazy when it comes to whether he was cheeky because there was a couple of different days where he was sitting at the table. One was with the food in the mouth and the – then he had the – then he spewed next to – next to the chair. I actually thought it was the chair – like his – his spew …”[63]
[63]Transcript 2-143/10.
Scown accepted he told the CCC he did not have any memory of the slap but that his ex-partner reminded him that Strbak had slapped Tyrell across the face.[64] Scown accepted that, in his first interview with police, he said, in response to a question as to how Strbak disciplined Tyrell, “mate I’ve just seen a little – a little smack mate, that’s about it” and that she usually smacked Tyrell “on the bum”.[65] It was only in the second interview he referred to a little slap across the face for being cheeky. Scown denied that he was looking for things to say in the second interview to explain away Tyrell’s injuries. He denied that is why his account changed so dramatically about Strbak’s disciplining of Tyrell.
[64]Transcript 2-144/45.
[65]Transcript 2-146/20.
Scown accepted that, in his second interview with police, he said he had had a conversation with Strbak, in which Strbak said “if it gets worse I’ll take him to the doctors”.[66] At no point in that interview or in the earlier interview, did he tell police that Strbak was saying no to taking Tyrell to the hospital. On that weekend, there was a discussion between Strbak and her mother about whether to take Tyrell to the hospital or to the doctor. In the course of those conversations, Strbak had also spoken to her mother about what Tyrell was eating, about Tyrell hitting his head after a fall in the shower and about Tyrell vomiting.
[66]Transcript 2-148/5.
Scown accepted that, in his s 13A statement, he gave a specific account of Tyrell putting his food to the side of his mouth and not swallowing it, when Strbak raised her open right hand and slapped Tyrell on the face. Scown accepted that in both of his police interviews, he spoke about Tyrell sitting with food in his mouth for an extended period of time, such that Strbak said “you know you’ve got to eat food properly and stick it all in”. He accepted he told police, in the first interview, that he thought Tyrell had vomited up some bread in his mouth, just to get Strbak’s attention, and that he found it frustrating and had said to Tyrell that he had to eat his food up for his mum “otherwise you will go to hospital”.[67]
[67]Transcript 2-152/30.
Scown also accepted that, in the course of the police interview, he described doing CPR and, when asked whether he had squeezed Tyrell’s stomach at any point in time, said “I pushed his – I was pushing on his stomach. I was pushing quite vigorously”.[68] Scown said he was pushing on Tyrell’s chest area. His hand stretched over that area. He denied he was trying to find an innocent explanation for trauma to Tyrell’s abdomen caused by him.
[68]Transcript 2-153/25.
In re-examination, Scown accepted that, in his evidence before the CCC, he had said he told Strbak straight away about kicking Tyrell in the bottom. He also accepted that he told police, in his first interview, that Strbak was “crook as” on the day he kicked Tyrell and that all Strbak said about kicking Tyrell was “well mate, you pissed on his floor, you expect that”.[69] By “crook as” he meant she was violently ill.
[69]Transcript 2-157/25.

CITATION:	R v Strbak [2020] QSC 364
PARTIES:	R v HEIDI STRBAK (Defendant)
FILE NO/S:	SC No 1643 of 2016
DIVISION:	Trial Division
PROCEEDING:	Contested Sentence
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	4 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	6, 7, 8 and 9 October 2020
JUDGE:	Boddice J
CATCHWORDS:	CRIMINAL LAW – SENTENCE – FACTUAL BASIS FOR SENTENCE – OTHER MATTERS – where the Defendant pleaded guilty to manslaughter on the basis that she failed to provide the necessaries of life to the deceased child – where the Crown did not accept the Defendant’s plea in satisfaction of the indictment – where the Crown contends the Defendant applied blunt force to the child’s abdominal region, which caused his death – where the Defendant contends the Crown cannot exclude as a reasonable hypothesis consistent with innocence that the Defendant’s co-accused applied the blunt force trauma – whether the Crown established, to the standard prescribed by section 132C of the Evidence Act 1977 (Qld), that the Defendant applied the blunt force trauma Evidence Act 1977 (Qld), s 132C Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, cited
COUNSEL:	P J McCarthy QC for the Prosecution S Holt QC for the Defendant
SOLICITORS:	Office of the Director of Public Prosecutions (Queensland) for the Prosecution Bamberry Lawyers for the Defendant