R v Strbak

Case [2017] QSC 299

SUPREME COURT OF QUEENSLAND

CITATION:

R v Strbak [2017] QSC 299

PARTIES:

R

(prosecution)

v
HEIDI STRBAK

(defendant)

FILE NO:

1643 of 2016

DIVISION:

Trial Division

PROCEEDING:

Contested Sentence

ORIGINATING COURT:


Supreme Court of Queensland at Brisbane

DELIVERED ON:

11 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

7, 8, 9, 10, 16 and 17 November 2017

JUDGE:

Applegarth J

CATCHWORDS:

CRIMINAL LAW – SENTENCE – CONTESTED – where the defendant pleads guilty to a charge of manslaughter on the basis of a criminally negligent  omission to seek medical treatment for her son – where the prosecution contends that she applied blunt force to the child’s abdomen causing his death – where the defendant contests this and raises the hypothesis that her co-accused may have inflicted the fatal injuries – whether the evidence establishes the contested fact on the balance of probabilities with  the degree of satisfaction required to be actually persuaded of that fact

Evidence Act 1977 (Qld) s 132C

Briginshaw v Briginshaw (1938) 60 CLR 336, cited
R v Geary [2002] 1 Qd R 64; [2002] QCA 33, cited
R v Miller [2004] 1 Qd R 548; [2003] QCA 404, cited

COUNSEL:

P J McCarthy for the prosecution

G M McGuire for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Queensland) for the prosecution

Bamberry Lawyers for the defendant

  1. Tyrell Cobb died on the night of Sunday, 24 May 2009, aged four years and three months.  He died as a result of abdominal injuries caused by blunt force trauma.  The defendant, Heidi Strbak, was indicted, along with Matthew Scown, for the manslaughter of her son. 

  2. On 11 October 2017 Scown pleaded guilty to manslaughter and was sentenced on the basis that he omitted to obtain medical assistance for Tyrell on 24 May 2009, when he observed Tyrell to be obviously and severely unwell.  Scown’s failure to obtain medical assistance made him criminally negligent for Tyrell’s death.

  3. On 1 November 2017 Strbak pleaded guilty to manslaughter, and the matter has proceeded to a contested sentence.  The prosecution particularises the charge that she unlawfully killed Tyrell Cobb on two alternative bases.  The first is that she applied force to his abdominal area causing his death.  The alternative is that she omitted to, among other things, “provide the necessaries of life”[1] to Tyrell in failing to seek medical treatment for him.

    [1]     Criminal Code 1899 (Qld) s 286.

  4. Strbak concedes that she is guilty of manslaughter on this alternative basis.  She contests that she applied blunt force trauma to her son which caused the abdominal injuries that led to his death.  In particular, she submits that the prosecution has not proven this to the high standard required because of:

    (a)uncertainty about the number of blows which were inflicted, and when they were inflicted; and

    (b)the possibility that the blunt force trauma which killed her son was inflicted by another individual who had the opportunity to do so.

    One such individual who was present on the weekend of…

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Details
AGLC
R v Strbak [2017] QSC 299
Case
[2017] QSC 299
Decision Date

CaseChat Overview and Summary

The case of R v Strbak involves a conviction for manslaughter by criminally negligent omission to seek medical treatment for her son, Tyrell. The prosecution argued that Strbak applied blunt force to Tyrell's abdomen, leading to his death. Strbak contested the prosecution's claim and suggested that her co-accused, Scown, may have inflicted the fatal injuries. The court had to determine whether the evidence established the contested fact on the balance of probabilities with the degree of satisfaction required to be actually persuaded of that fact.

The legal issues before the court were whether the circumstantial evidence was sufficient to prove beyond reasonable doubt that Strbak inflicted the fatal injuries and whether the evidence established that the injuries were caused by blunt force trauma. The court also had to assess the relative strength of the circumstantial cases against Strbak and Scown.

The court found that the circumstantial case against Strbak was a strong one. Strbak had an opportunity to inflict blunt force trauma to her son at various times early on the weekend and to deliver the second blunt force trauma to his abdomen some time on the Sunday. The medical evidence indicated that the injuries sustained by Tyrell were consistent with blunt impact, and the force required to cause these injuries would have to be severe. The court was satisfied that the evidence established the contested fact on the balance of probabilities with the degree of satisfaction required to be actually persuaded of that fact.

The court found Strbak guilty of manslaughter and sentenced her to imprisonment. The court noted that while the circumstantial case against Scown was not compelling, the evidence did not exclude the possibility that he inflicted the fatal injuries. However, the court was not satisfied beyond reasonable doubt that Scown was responsible for the injuries, and he was acquitted.

Orders

Orders of the court

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Background

Background to the litigation

Strbak chose not to give oral evidence, and to thereby subject herself to cross-examination, at the hearing.Essential facts and events Strbak and Tyrell’s father, Jason Cobb, lived together at Lightning Ridge, New South Wales for about a year before he was born. Tyrell was born at the Gold Coast Hospital and after his birth he and his parents returned to Lightning Ridge. They lived together until about six months before he died. In late 2008 Strbak moved to the Gold Coast with Tyrell. Jason Cobb resided mainly in Lightning Ridge, but would visit his son when he could. Strbak’s relationship with Scown commenced in late 2008. She met him through her step-brother, Danial Allan. Scown had his own son, who was five years old. Strbak’s parents owned a unit at 5/76 Brighton Street, Biggera Waters, and in December 2008 Strbak moved into it with Tyrell. Scown did not live with her there. He had his own place at Hope Island, but would regularly visit Strbak at her unit. On or about 17 February 2009 Strbak moved with Tyrell into a unit at 6/45 Bayview Street, Runaway Bay. Tyrell attended a pre-school three days a week. On 11 May 2009 he injured his arm when playing on a fort in the pre-school’s playground. The arm became swollen, and that night a possible fracture was treated at the Gold Coast Hospital with a cast. On 14 May 2009 when Strbak and Scown were packing up her belongings from her unit in preparation for her to move back to 5/76 Brighton Street, Tyrell was playing near a large wooden toy box which looked like a trunk. Scown had propped it open so Tyrell could reach into it and take toys. The prop fell away and Tyrell’s hand was jammed, injuring a finger. It became infected and he was prescribed antibiotics by a general practitioner. On 16 May 2009 Strbak and Tyrell moved back into 5/76 Brighton Street, Biggera Waters and Scown also stayed at that address. Strbak occupied a bedroom with Tyrell, who slept on a mattress on the floor. Scown slept on the floor in the main living area. On the night of 16 May, Scown placed a call to a locum medical service because he was concerned about Tyrell’s injured finger. A doctor attended and the injury was referred to the hospital. Tyrell was admitted to the Gold Coast Hospital that night, and examination showed an undisplaced fracture at the base of his finger. The infection associated with the injury was treated with intravenous antibiotics. During his time at the hospital over the following days, no problems were detected with his abdomen. It was noted to be soft and non-tender. There was an isolated episode of vomiting food on 19 May 2009. At midday on Wednesday, 20 May 2009, Tyrell was discharged from hospital, having been observed by physicians at the hospital to be well. On Friday, 22 May 2009, he attended his pre-school. No incidents involving Tyrell were observed by pre-school staff or reported to them that day, and apart from his bandaged hand injury, no injuries were observed. Strbak collected Tyrell from the centre at around 4 pm that Friday. Tyrell returned home and remained at the unit until his death.

Evidence

Evidence Before The Court

Dr Little stated, and this is not contested, that because of the placement of the duodenum at the back of the abdomen, it is possible for a duodenal injury to be “walled off”, which can mask symptoms. Medical evidenceDr Ong Two important paragraphs of Dr Ong’s autopsy report should be quoted:“A notable bruise was the bruise near the umbilicus (belly button) involving the rectus muscle and peritoneum (inner lining of the abdominal cavity). The site of the bruise was directly in front of the ruptured duodenum and lacerated mesentery. In addition, there was bleeding in the soft tissue around the lumbar vertebrae as well as bleeding within the intervertebral joints. The finding was consistent with a blunt impact or impacts against the abdominal wall impinging abdominal structures (in this case, the mesentery and then beneath that the fourth part of the duodenum) against the spine. This had resulted in laceration of and transection of the described structures. Consequent of the impact, there was bleeding in the tissue around the spine (vertebra) as well as in the intervertebral joints.This abdominal injury was caused by blunt impact (e.g. by punches, impact with blunt objects). The force to cause this injury would have to be severe to cause these injuries. As the injury was extensive, the child would have experienced extreme pain locally and the symptoms would appear almost immediately after the injury was sustained. It was noted on histology that there was inflammatory reaction to these injuries in keeping with them being sustained earlier (at least 1 to 2 days’ duration). The inference from the findings was that the child had sustained similar blunt impacts to abdomen before. As the child had not complained of any abdominal pain before the terminal episode, the injuries sustained earlier were unlikely to cause intestinal or mesenteric rupture. The fatal injuries (rupture of the intestines and laceration of the mesentery) would have been sustained in the peri-mortem period.” Dr Ong discussed the matter with another pathologist who brought to his attention certain articles which described how in similar cases the presentation of such injuries in children could be delayed. A leakage of contents resulting from the rupture of intestines may be limited initially to the site of the rupture. Dr Ong noted in his report that it was possible that in this case there had been a similar course, consistent with “vague presentation of vomiting present earlier in the same day”. However, in this case, a major finding was an intra-abdominal haemorrhage, rather than generalised peritonitis. The child’s peritonitis was only limited to the site of the rupture. This suggested to Dr Ong further acute trauma to the same site which had resulted in the haemorrhage. He concluded that it might take “a few hours after the last infliction of injury before clinical manifestation could be seen (in this case, cardiorespiratory collapse).” As there was healing process in the same area resulting in the tissue being more friable, it was “possible that less blunt trauma to the abdomen would be required to cause the haemorrhage”.

Decision

Reasons for decision

As part of the argument that the circumstantial case against Scown is stronger than the circumstantial case against Strbak, defence counsel submitted that, unlike a slap prompted by frustration, to punch somebody in the stomach is an unusual thing to do. The rhetorical question was asked: “Is it more likely for a male to do that than a female?” This is an interesting question and, for the purpose of argument, I am prepared to assume that, generally speaking, males are more physically aggressive than females. However, the issues I have to decide are not resolved by generalisations of that kind, or by guesses, unaided by evidence, of the incidence of injuries caused to children by physical abuse and neglect at the hands of female parents, male parents and partners of biological parents. No questions were asked of the highly-qualified experts who gave evidence in this case about those matters. However, I suspect that any evidence which they may have been able to offer would only be useful if the type of injury (a slap or a punch), the circumstances under which it came to be inflicted and other matters were analysed. Even if a reliable evidentiary base existed and yielded a reliable figure that X per cent of stomach punches to children of about Tyrell’s age were delivered by men, that would simply be an actuarial figure. Any such figure, drawn from thousands of cases, would be of limited assistance in deciding the probability that Strbak inflicted the blunt force trauma in this case. However, I do not have any such evidence and no attempt was made to elicit it from the experts. Conclusion on the relative strength of the circumstantial cases Having assessed the circumstantial case in respect of Scown, both in respect of its component parts and by way of an overall assessment when those parts are considered together, I conclude that there is no compelling case that Scown inflicted the fatal injuries. By contrast, the circumstantial case against Strbak is a strong one.Has the prosecution proven the ultimate issue, on the balance of probabilities, and to the high degree of satisfaction required? The defence argues that, even if the circumstantial case against Strbak is a strong one, and stronger than the competing circumstantial case against Scown, I should not be satisfied to the high degree required that Strbak inflicted the fatal injuries. The defence position in this regard is captured in the submission that, given the state of the evidence, we will never know who did what or when or how. The prosecution is not required, however, to prove precisely when each fatal blow was landed or the reason for it. Its circumstantial case against Strbak is a strong one. Strbak had an opportunity to inflict blunt force trauma to her son at various times early on the weekend, and also to deliver the second blunt force trauma to his abdomen some time on the Sunday. Ms Dyball’s evidence is suggestive of such a blow being inflicted at around 3:00 or 3:30 pm on the Sunday but does not prove this on its own.

Ratio Decidendi

Legal Principle Established

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