R v Strbak - [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

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.
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.
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.
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 23 and 24 May 2009 was Strbak’s step-brother, Danial Allan. Another was Scown, with whom Strbak was in a relationship at the time, and Strbak points to times when Scown was alone with Tyrell that weekend.
There is no dispute that Tyrell’s death was caused by a transected duodenum with an associated laceration of the mesentery. Those injuries caused leakage of the child’s stomach contents and bleeding in the abdominal cavity. The combination of peritonitis (caused from the leaking stomach contents) and haemorrhage (bleeding) eventually resulted in shock and death.
Tyrell suffered other non-fatal, non-accidental injuries. These are relevant to the source and timing of his fatal injuries.
As for his fatal abdominal injuries, the preponderance of the expert medical opinion is that they were the result of two separate applications of blunt force trauma. Post-mortem examination of his abdomen, including inflammation around the duodenum, indicates that the inflammatory changes would take 24 to 48 hours to occur.
The medical evidence also indicates that a second application of blunt force trauma closer to the time of death caused a fresh haemorrhage. Early healing of the tears that had already been inflicted would have made the tissue more friable, and it is possible that less blunt force than had been applied to the abdomen a day or two earlier was required to cause the fresh haemorrhage and increase the size of the duodenal tear.
The second blunt force trauma probably occurred within several hours of death, whereas the initial application of force occurred at least a day, and probably between 24 and 48 hours, prior to Tyrell’s death.
The issue
The issue is whether I am satisfied to the required standard that Strbak applied one or more of the blunt forces that were a substantial cause of her son’s fatal abdominal injuries.
Outline of the prosecution case
The prosecution contends that the evidence compels the conclusion that Strbak applied blunt force to the child’s abdomen, and also perpetrated other injuries, including a burn scar to his leg inflicted by a cigarette lighter and bruises to parts of his body.
According to the prosecution, Strbak is a demonstrated liar who was prepared to lie to investigators about the events in question, including her son’s condition that weekend. She did not disclose to even her mother the bruises and other injuries that Tyrell had accumulated by Sunday, 24 May 2009, or his dire state of health, despite speaking to her mother that evening.
The prosecution case is that Strbak opposed Scown’s suggestion that the child be taken to hospital. She refused to take him to hospital because she inflicted his injuries and knew that taking the child to hospital would put the cause of his injuries under investigation.
The prosecution points to other circumstantial evidence that Strbak was responsible for the child’s injuries. According to the child’s father, Strbak contacted him that weekend and asked him to take Tyrell from her. The inference is that she wanted the child taken from her because she could not cope with him and had injured him. There is evidence from neighbours that she would often yell abuse at the child. According to Scown, Strbak was a good mother when she was “stoned”. On the weekend in question she did not have cannabis and left her sick child on Saturday night and then again on Sunday night in order to seek cannabis.
According to a neighbour, Ms Dyball, Strbak was “stressed out”. On the afternoon of Sunday, 24 May 2009, at around 3 or 3:30 pm, Ms Dyball heard a child scream from Strbak’s unit. After the child screamed “all of a sudden he stopped”.
The prosecution case contrasts Strbak’s alleged lies and concealment of the truth from even her mother with Scown’s truthful evidence about the child’s condition that weekend and about what was said and done. Scown’s evidence is said to be supported by the medical evidence about Tyrell’s likely state that weekend. Until matters turned against her in the course of a lengthy police investigation, Strbak did not criticise Scown in statements she made to police. In fact, she reported that Tyrell had never complained about Scown and had always said “Matt’s a great bloke, he’s my friend”. Even at this stage, Strbak does not point to any direct evidence that Scown injured the child that weekend. The prosecution submits that there is no acceptable evidence that Scown inflicted the fatal injuries.
In broad outline, the prosecution case involves:
·acceptance of Scown’s evidence about the course of events and Tyrell’s condition that weekend, as supported by the medical evidence;
·acceptance of Tyrell’s father’s evidence that suddenly that weekend, Strbak requested him to take Tyrell from her because she could not cope with him;
·findings that Strbak was responsible for non-fatal injuries inflicted on Tyrell, including a burn to his leg some weeks earlier and injuries to other parts of his body that weekend;
·findings that Strbak lied about her son’s condition and concealed his true condition;
·findings that Strbak refrained from seeking medical assistance for her severely sick child throughout Sunday because to do so would reveal the injuries she inflicted on him.
These and other matters are said to present a compelling case that Strbak caused her son’s abdominal injuries and the other non-accidental injuries he sustained.
Outline of the defence case
The defence submits that, on the state of the evidence, we will never know what happened to Tyrell as far as who did what or when or how. The medical evidence about two separate applications of blunt force trauma to the abdomen is said to make it feasible that the second application of force occurred when Tyrell was alone with Scown for a period of about 25 minutes on the Sunday night, shortly before Tyrell’s condition rapidly declined.
The defence submits that even if Strbak was responsible for inflicting the scar to Tyrell’s ankle by applying the heated end of a cigarette lighter to his skin, this does not support the inference that she was responsible for inflicting the far more serious injuries which he sustained on the weekend of 23 and 24 May 2009. In addition, if, as Scown reported to police on 25 May 2009, Strbak slapped the child on his face at dinner time on the Saturday evening, the slap did not cause any serious injury.
The defence is not required to prove, nor does it seek to prove, that Scown caused the fatal injuries. Instead, it points to evidence which is said to make it more likely that Scown caused the injuries than Strbak. This includes Scown’s admitted conduct some time earlier in kicking the child in the backside, and evidence that Tyrell complained to his father at some stage about being slapped across the top of his head by Scown’s open palm.
The defence also relies upon injuries that the child suffered when Scown was present with him, namely an injury sustained on 16 May 2009 when his finger was caught in the lid of a toy box, and injuries which he sustained in the shower on the night of Saturday,

23 May 2009. The defence points to evidence of Scown’s aggression. It challenges the credibility and reliability of parts of Scown’s evidence. It submits that even if one accepts his evidence about occasions when he saw Strbak being aggressive towards the child, including slapping the child on the face that weekend, Scown’s evidence and the other evidence about Strbak’s aggression towards Tyrell does not prove that she applied one or more of the blunt forces that caused her son’s fatal abdominal injuries.
In summary, the defence’s position is that:
·there is no direct evidence against either Strbak or Scown;
·there is a circumstantial case against each of them;
·the circumstantial case against Scown is stronger than it is against Strbak, such that one could not be satisfied, to the degree required, to make the adverse finding which the prosecution seeks.
The onus of proof, the standard of proof and the degree of satisfaction required
Strbak is not required to prove that she did not inflict the fatal injuries. Nor is she required to prove that Scown probably did. The onus of proof is on the prosecution to prove the contested facts upon which it relies, and the ultimate contested fact that Strbak inflicted the fatal injuries.
Proof that she inflicted other non-fatal injuries aids the prosecution case by, among other things, illuminating the nature of her relationship with her son at the time and enhancing the credibility and reliability of parts of Scown’s testimony.
Unlike a criminal trial, the standard of proof is not beyond reasonable doubt. A sentencing judge may act on an allegation of fact that is admitted or not challenged.[2] If an allegation of fact is not admitted or is challenged, the sentencing judge may act on the allegation if “satisfied on the balance of probabilities that the allegation is true”.[3]
[2] Evidence Act 1977 (Qld), s 132C(2).
[3] Ibid, s 132C(3).
In this statutory context, “the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true”.[4]
[4] Ibid, s 132C(4). See also R v Geary [2002] 1 Qd R 64.
Under the common law of Australia there are only two standards of proof: beyond reasonable doubt and on the balance of probabilities. There is no intermediate standard. Instead, in a case in which proof on the balance of probabilities is required, and a party makes grave allegations of misconduct, courts require a high degree of satisfaction before finding the allegation proved on the balance of probabilities. As was stated by Dixon J in Briginshaw vBriginshaw:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”[5]
But as Dixon J pointed out, this does not mean that some standard of persuasion “is fixed intermediate between the satisfaction beyond reasonable doubt required on a criminal inquest” and reasonable satisfaction based on a preponderance of probability.[6] Instead, it means “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.”[7] 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”.[8]
[5] (1938) 60 CLR 336 at 362.
[6] At 363.
[7] Ibid.
[8] At 361.
Justice Gagelar recently wrote:
“What Dixon J was saying in Briginshaw was that satisfaction on the balance of probabilities involves the formation under conditions of acknowledged uncertainty of a subjective belief. The requisite belief is an “actual persuasion” that the fact in issue actually exists – that a past event the occurrence of which is uncertain and is disputed did indeed occur”[9]
[9] Justice Stephen Gagelar “Evidence and Truth” (2017) 13 The Judicial Review 1, 7.
One of the matters mentioned in Briginshaw is reflected in s 132C(4) of the Evidence Act 1977 (Qld), which refers to the adverse consequences to the person being sentenced of finding the allegation to be true. Accordingly, in determining the contested facts, and the ultimate contested fact (that Strbak applied blunt force trauma which caused her son’s fatal abdominal injuries), I must have regard to the consequences of finding the allegation to be true.
The consequences include additional punishment and the additional reputational harm of being found to have applied the blunt forces that substantially caused her son’s death, as compared to the consequences of being criminally negligent for his death.
As to the latter, on any fair assessment of the uncontested facts and facts which cannot be seriously disputed, Strbak was callously indifferent to her son’s condition. She concealed his true condition from the child’s father and from her own mother when each of them spoke to her on the telephone that weekend. She left the child with Scown and went in search of cannabis, rather than take him to the hospital or otherwise seek urgent medical care which would have saved him. On that basis, she deserves to be sentenced to a very substantial term of imprisonment. This is so even if an explanation for not seeking medical treatment that Sunday was that hospital staff and authorities would investigate her son’s obvious injuries and “do her for neglect”.
It might be said that the culpability of a parent who allowed her child to die in the circumstances in which Tyrell died is not much different to what her culpability would be if she, in addition, inflicted a fatal blow to his abdomen. It might be said that the punishment for the gross neglect of the injured and very sick child should not be much less than if the prosecution additionally proves that she struck him in the abdomen.
There is, however, a real difference between the punishment she might reasonably expect depending upon whether the prosecution proves the contested facts. The required proof includes the application of substantial force to the child’s abdomen on at least one occasion, and the prosecution seeks to prove that she inflicted other non-fatal injuries. These are very serious allegations and proof of them would be expected to have significant, additional consequences for Strbak. Therefore, a high degree of satisfaction is required before these allegations can be found to be true.
Some less important contested facts do not require the same degree of satisfaction. Some are contested simply because Strbak did not personally observe them, and they are readily proven to my satisfaction.
Although a high degree of satisfaction is required before certain contested facts can be found to be true, this is not a criminal trial. The task of fact finding by a judge in a contested sentence is not constrained by the presumption of innocence.
A sentencing judge may proceed, as common sense dictates, more readily to accept evidence or draw inferences invited by the prosecution in the absence of contradictory evidence. This proposition emerges from the judgment of Holmes J (as the Chief Justice then was, and with whom Williams JA and Muir J agreed) in R v Miller:
“It is true that he has a right to maintain his silence and that he cannot be compelled to give evidence on sentence; but those entitlements are not infringed by the drawing of an inference in favour of the prosecution case if he does not do so. …
At the stage at which fact-finding on the sentence occurs, the situation, at least in Queensland, is more akin to that in a civil trial than that in the criminal trial which may have preceded it. The fact-finder is, of course, a judge, not a jury. Although the prosecution still carries an onus, it is, by virtue of s 132C of the Evidence Act 1977, to satisfy the sentencing judge on the balance of probabilities, with allowance for the Briginshaw standard by requiring a variation of the degree of satisfaction according to the consequences. ...
There is nothing, in my view, which would constrain a sentencing judge from proceeding, as common sense dictates, more readily to accept prosecution evidence or draw inferences invited by the prosecution in the absence of contradictory evidence.”[10]
Williams JA added that because the presumption of innocence is not relevant, one would ordinarily expect a party to give evidence in support of a contention about the disputed fact.
[10] [2004] 1 Qd R 548 at 553[25] – 554[27].
The parties in this case accept that these principles apply to the resolution of disputed questions of fact. The presumption of innocence does not apply. In the absence of sworn evidence by the defendant about matters about which she could give evidence and be cross-examined, I can more readily accept prosecution evidence and draw inferences invited by the prosecution.
Agreed facts, contested facts and the evidence
Many facts are agreed by the parties. Rather than reproduce them in the body of these reasons, they are attached as a schedule. The unshaded paragraphs are agreed. The shaded paragraphs are contested because Strbak either denies them or is unaware of certain matters and therefore declines to admit them. The agreed facts should be taken as being, in effect, incorporated into these reasons.
The evidence before me included 124 exhibits, consisting of expert reports, witness statements, transcripts, photographs and recordings of police interviews. During four days of evidence I heard from many lay witnesses and several medical experts. It is unnecessary for me to resolve every disputed question of fact. In due course, I will turn to the credibility and reliability of certain important lay witnesses, and also to the credibility and reliability of Strbak’s account of events, as told to police in a two hour recorded interview early on the morning of 25 May 2009 (some hours after Tyrell’s death), an hour long interview that evening, in a witness statement dated 7 July 2009 and in a “field interview” on 10 July 2015.

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.
Jason Cobb would routinely telephone his son most evenings. Telephone records for Friday afternoon and evening, and for Saturday evening record a number of telephone calls made by Jason Cobb to Strbak’s phone, and it seems likely that Jason Cobb spoke to his son on the Friday evening, and again on the Saturday evening.
According to Jason Cobb, during that weekend Strbak spoke to him on the telephone and requested that he take Tyrell from her. For reasons to be given, I find that such a conversation occurred, and that Jason Cobb was given to understand that the request was being made by Strbak because she could not cope with Tyrell.
At around lunchtime on Saturday, 23 May 2009, Strbak’s step-brother Danial Allan attended Strbak’s unit and observed Tyrell to lack energy, and not to be his “usual happy self”. He observed that Tyrell had bruises on his head, ear and arms. Strbak indicated to him that the bruises were from Tyrell’s pre-school.
Tyrell was unwell that Saturday afternoon, but he and Allan watched a movie in the lounge room before Allan left at around 5:30 pm.
That evening Strbak left the home in order to obtain cannabis from her dealer,

Brett Archer. She later lied to police about the reason why she left her home and her son that night.
That evening, while she was absent, Scown cooked dinner and, at the same time, arranged for Tyrell to have a “bubble shower” in the shower recess. While he was cooking dinner he heard a bang, went into the bathroom and found Tyrell on the floor of the shower. Tyrell hit his head when falling, and when Strbak returned home, Tyrell’s fall in the shower was reported to her.
Tyrell had been vomiting earlier that day and continued to vomit during the Saturday night.
Strbak stayed with him in their bedroom that night. The next morning Tyrell had not improved and for some time watched television in the living room.
Tyrell repeatedly vomited throughout Sunday, 24 May 2009. His vomit had the colour of bile. He could not keep food or liquids down throughout the day.
According to Scown, he told Strbak that Tyrell should be taken to the hospital or to see a doctor, but Strbak refused to do so, saying that she would be blamed for a bruise to her son’s face, and would be investigated for neglect of her child. Strbak contests that she said these things.
On the evening of Sunday, 24 May 2009, Allan came to the unit again, and observed that Tyrell’s condition had deteriorated. He observed more bruises to Tyrell than he had seen the day before.
Allan heard Strbak and Scown arguing on the verandah. She left the unit and placed a call to Jason Cobb from a payphone at 7:48 pm.
Some time after 8:30 pm Strbak and Allan left the unit. Strbak later told police that she left at around 9:10 pm to drive to another brother’s home in order to get cigarettes. In fact, she left in order to obtain cannabis. When Strbak and Danial Allan left the apartment, Tyrell was asleep on his mattress in the bedroom. Scown was on the couch in the lounge room.
While he was watching television, Scown heard a gargling noise coming from Tyrell’s room. He found Tyrell was limp and initially took him into the shower to attempt to revive him. He then placed Tyrell on the floor. At 9:37 pm he telephoned 000 and reported that Tyrell had vomit coming out of his mouth and nose. Strbak arrived home with Allan at about this time. Scown and Strbak each spoke to the 000 operator who attempted to have them administer CPR. A neighbour arrived at the scene and administered CPR.
The ambulance arrived at the address at about 9:45 pm. Tyrell was observed to be in a parlous condition. He had no heart rhythm and paramedics started CPR without success. Upon his arrival at the Gold Coast Hospital he was examined and found to have no pulse. Attempts to revive him failed and at 10:25 pm he was declared deceased. Doctors at the hospital noticed numerous bruises all over his body.
The timing of the fatal injuries
The evidence of the medical experts is important in reaching a conclusion about the timing of the fatal blunt force or forces which killed Tyrell Cobb. The medical evidence comes with its complexities. There are some subtle differences between the evidence of the medical experts. However, there is a broad consensus that the initial blunt force injury (or, in Dr Kimble’s view, possibly the only blunt force injury) occurred a substantial time before death.
Dr Kimble was not convinced that there were two blows, but thought that a fatal blow occurred a substantial time, possibly around 36 hours, before death. He explained that the extent of peritonitis was consistent with 24 to 48 hours of irritation, and explained how it was possible for the child to have survived for a couple of days with that level of tear to the duodenum.
Dr Little thought that there were at least two episodes of traumatic injury because of the period during which the inflammatory process had occurred. She shares Dr Ong’s opinion that there was a fresh haemorrhage in the hours prior to death which was the result of another application of force. This made both the injury to the duodenum and the injury to the mesentery worse. Professor Duflou also agreed that the inflammatory reaction was indicative of an injury which occurred some days earlier. Understandably, like other experts who favoured the two blow theory, he could not say precisely when the last blow occurred. It could have been a relatively short time before the child’s collapse and death.
The sources and timing of non-fatal injuries
When seen at pre-school, at hospital and by some relatives in the days and weeks before 23 May 2009, Tyrell appeared relatively free of bruises and other injuries. However, one would expect any active four year old like Tyrell to carry a number of accidental injuries which resulted in abrasions and bruises. The two pre-school employees who gave evidence impressed me as professional and caring. It would be unrealistic, however, to expect even the most professional of pre-school teachers to monitor every abrasion or bruise that might be seen on a child, and such an employee would not be ordinarily expected to remove the child’s clothing to see what injuries might be concealed by clothes. Tyrell was in hospital between 16 and 20 May 2009, being treated for the infected finger he injured in the lid of a large wooden toy box. One would not expect hospital staff treating an infected finger to give his body the same degree of close attention in terms of counting and analysing scratches, scars and bruises as they would in a case of suspected child abuse, or the close attention given in a post-mortem examination.
Therefore, it cannot be said, and it would be wrong to assume, that Tyrell’s body was free from bruises and other injuries when he was in hospital or at pre-school. It is possible that minor injuries, including some non-accidental injuries, went unnoticed when he was at pre-school or was in hospital. For example, a u-shaped scar on his leg, upon close post-mortem forensic examination, was shown to have a sinister origin, being caused by the heated metal top of a cigarette lighter. This scar may not have been closely observed by others in the weeks prior to his death. If noticed by an untrained eye, it may have appeared to be a small and unremarkable scar on a young boy’s leg.
When Tyrell attended pre-school with bandaged fingers on Friday, 22 May, he was carefully observed by Ms Tracey, a child care assistant. She did not notice any excessive bruising or injuries. Tyrell was not observed to have any major accidents at pre-school. He did not complain of any injuries or report to Ms Tracey that day, to his mother when she picked him up that afternoon or to Scown that evening that he had been hurt by anyone at pre-school, or that he had been hurt, for example, by accidentally falling off a bike or anything else.
By the time of his death, however, Tyrell had acquired a large number of injuries. Some, possibly many, particularly injuries on his legs, might be explained by falling over and other accidents. But even an accident-prone child could not have acquired all of the injuries which Tyrell did in the places which he did.
Dr Ong, the forensic pathologist who performed the autopsy, and whose findings were reviewed by other experts, numbered 70 different injuries in his report. They are summarised and numbered differently in a schedule annexed to these reasons. Some were very minor and are the kind of abrasions or bruises which would be found on the limbs of most active four year olds. Dr Ong’s autopsy report noted that most of the bruises found on Tyrell’s body were small and oval in shape. Bruises are, by definition, caused by blunt force trauma. Dr Ong concluded that the bruises on Tyrell’s body, together with the abrasions, were distributed over his entire body, and were not typical of those caused by accidental injuries. He reported that some of the bruises showed features (oval and some butterfly-shaped) that could be caused by fingers, either by fingertip pressure or pinching. The bruises were also of varying colours, and histology showed that they were of varying age. He concluded that most of the findings “would be consistent with the injuries being inflicted at different times, possibly over the past few days including the peri-mortem period.”
I was assisted also by the evidence of Associate Professor Sullivan, who has practised in paediatrics since 1971. He is an expert in child protection and child abuse. His report and oral evidence addressed the number of injuries and bruises, their location and the clustering of bruises. He also addressed the aging of bruises. His report dated

9 July 2014 concluded that, given the large number of bruises and abrasions on Tyrell’s body, their position on the body, and their size, it was highly unlikely that these occurred in normal activities, and it is highly likely they were inflicted.
Although Associate Professor Sullivan could not use the colour of the bruises to date them, he relied upon other information to do so. The intravenous treatment Tyrell received after 16 May for his infected finger explains bruising on the back of his left hand where a drip was inserted. As Associate Professor Sullivan notes, the extensive bruising and abrasions of his face, ear, chest, abdomen and back noted in the autopsy report were not noted by any paediatric nurse or doctor, indicating that these injuries occurred after discharge. Strbak told police that Tyrell had only a few marks on him when he left hospital. Associate Professor Sullivan concludes that the majority of the bruises on Tyrell’s body occurred after discharge from hospital, namely between 20 and 24 May 2009. His report found it:
“implausible that these bruises occurred on a single occasion during that timeframe. This opinion is based not on the colour or appearance of the bruises but their total number, the widespread distribution on multiple body regions, and the wide distribution on body planes within those regions (e.g. front and back, left side and right side, inner and outer on the limbs). This distribution indicates impacts from multiple directions likely to have occurred on separate occasions.”
Associate Professor Sullivan considered, both in his 2014 report and in his oral evidence to this Court, whether certain incidents could account for some or all of the bruising and abrasions noted at the time of Tyrell’s death.
The fall from the fort/slide on 11 May 2009: This fall from a height of about a metre might explain a bruise around the elbow. The hospital notes do not record any bruising of the ear or elsewhere.
Associate Professor Sullivan regarded Strbak’s claim that she noted bruising on the top of Tyrell’s ear and behind his ear after his discharge from hospital as implausible. He explained that this would imply multiple contact points during the fall, which is unlikely. He described the area of the ear and lower jaw as part of the “protected triangle”. This is because when a person falls and one side strikes the ground, the point of the shoulder and the upper part of the head may strike the ground, but the lower jaw area and ear are protected within the cavity formed by the shoulder and head, and are rarely damaged. His report states:
“Ears have little blood supply and are hard to bruise and injuries to the ear are highly correlated with non-accidental injury”.
He elaborated on that aspect in his oral evidence and also referred to the time lapse between the date of the fall from the fort (when Strbak alleged Tyrell sustained the bruise to his ear) and the autopsy. No bruising was noticed during Tyrell’s time in hospital and, in any event, most bruising would have faded by 13 days after the fall from the fort/slide.
The fall upstairs: There is evidence that Tyrell slipped and fell forward while walking upstairs on the morning of Saturday, 23 May 2009. This incident was observed by Scown and immediately reported to Strbak. It seems he scuffed his leg and injured his shin, and also fell on the front of his body. Such a fall was extremely unlikely to have caused his fatal abdominal injuries, or to have caused the bruises to his abdomen that were noted post-mortem. Associate Professor Sullivan reports that bruising on the abdomen is rare in childhood. Bruising occurs when blood vessels are damaged and this occurs mainly over rigid bony surfaces. The soft-yielding abdomen rarely bruises even when severe abdominal injury occurs. Research in 2000 into whether stair falls could result in small intestine perforation reviewed hundreds of cases of small intestine perforation and none were due to stairway falls. Of 432 cases of children who had stairway falls, none had small bowel perforation. Associate Professor Sullivan concluded that it is highly unlikely that the fall up the stairs was the cause of Tyrell’s duodenal perforation.
He also observed in his oral evidence that one would not expect such a fall to have caused the bruises to the abdomen noted by Dr Ong’s post-mortem report. According to Associate Professor Sullivan, if there was bruising to the abdomen by a fall to the tread of a stair, one would expect a line, possibly, if it was going to cause a bruise at all.
The fall in the shower: There is evidence that Tyrell fell in the shower on the evening of Saturday, 23 May 2009. The child had been having a bubble shower, and reportedly slipped and fell onto the floor of the shower recess. Scown heard the noise and went into the bathroom where he saw Tyrell on the floor and observed, amongst other things, a red mark on his forehead. I will return, in due course, to Scown’s reported observations of that mark and other bruises, and Strbak’s account of the marks and bruises which she saw on Tyrell that weekend. For present purposes, it is sufficient to observe that, as with other reported accidents, such as the fall from the fort on 11 May and the fall up the stairs on the morning of 23 May, the fall in the shower could not account for all of Tyrell’s injuries and bruises.
Associate Professor Sullivan summarised the matter in his report as follows:
“I do not consider that these accidents, individually or in total, could account for the large number of injuries on multiple body areas and planes noted in this case and, at most, may be the cause of a few individual lesions”.
His oral evidence was to like effect. As he explained, any single bruise can be due to an accident or can be due to an impact, and it is impossible if a person has one bruise to say exactly what caused it. However, in Tyrell’s case there were a constellation of injuries and multiple bruises to his back, to his front, to the left side of the face and to the forehead. Associate Professor Sullivan’s evidence was:
“I couldn’t say that any single injury may not have been accidental, but I could not see that the totality of these injuries could be accidental”.
One other non-accidental injury should be noted at this point: the scar to Tyrell’s leg as shown on Exhibits 6 and 7. It was referred to in some evidence as a “smiley face” scar. The forensic evidence and Exhibit 94 in particular, convincingly proves that the scar injury had been caused by the application of the heated metal at the end of a cigarette lighter being applied to the child’s leg. Associate Professor Sullivan confirmed that the tissue damage that would have occurred to cause that scar would have placed the child in significant discomfort at the time and that pain would have subsisted for some time afterwards. The scar cannot be precisely aged but Dr Ong thought it may have been at least four to six weeks old.
Bruises cannot be precisely dated. The colour and appearance of bruises may be affected by individual characteristics or the places on the body at which they are located. However, experienced forensic pathologists, experienced paediatricians and other medical experts are able to give an estimate of when an injury which causes bruising was sustained. Sometimes their opinions are aided by histology reports. It will be necessary to return to the medical evidence about when significant injuries to Tyrell’s face, head and other parts of his body were probably sustained, and to other evidence about how and by whom injuries may have been inflicted. For example, there is evidence that on the evening of Saturday, 23 May 2009, Strbak slapped her son across the face.

It is not necessary or even possible for me to reach a conclusion about precisely when each of the apparently non-accidental, non-fatal injuries were inflicted. Instead, the inference to be drawn from the significant number of apparently non-accidental injuries which Tyrell suffered is that he was physically abused.
The infliction of a number of non-accidental injuries has a relevance to the source and timing of his fatal injuries.
The fatal injuries
The photographs of Tyrell’s body include bruises to his abdomen. Injuries 26 and 27 are each described in the autopsy report as a greenish brown bruise. Injury 25 in the autopsy report (which correlates with Injury 26 in the schedule) is described as a faint greenish bruise on the centre of the abdomen, just to the left of the umbilicus (belly button).

Dr Ong reported that there was an underlying red purple bruise, “3 x 2 centimetre in the rectus muscle and visceral peritoneum”. His internal examination of the abdomen found a near transection of the small intestine, with only one centimetre out of four centimetres of the circumference of the intestine still attached. There also was a three centimetre long tear involving the mesentery of the small intestine near its attachment. The small intestine at this point lies directly above the ruptured portion of the duodenum. Internal examination of the muscular skeletal system revealed a perivertebral soft tissue haemorrhage on the front of vertebrae L2 and L3, underlying the area in which the intestines were perforated.
Abdominal injuries in children, according to the medical literature, can be insidious and not cause obvious symptoms initially. Typical symptoms include abdominal pain, distention, vomiting, fever and non-specific complaints such as general discomfort and unhappiness. Dr Kimble stated that initially the release of duodenal contents into the abdomen would cause some discomfort, but a child does not become “terribly unwell” until the initial chemical peritonitis develops into bacterial peritonitis. Therefore the severity of symptoms vary, and symptoms take a variable length of time to develop.
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 evidence
Dr 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”.
In his oral evidence, Dr Ong noted the coincidence between the injury to the duodenum, the injury to the mesentery and the haemorrhage seen at the L2 and L3 vertebrae. Those overlaying injuries suggested the application of a blunt force trauma as the mechanism causing all of those injuries. The injuries might be caused by a single punch or a kick to the child’s stomach. However, Dr Ong’s preferred view was that the injuries were not the result of a single traumatic episode, but were the result of force being applied on at least two different occasions. This was based upon the histopathological examination of the injuries, including the presence of fibrosis which indicating early healing and the presence of hemosiderin-laden macrophages, which is seen two or three days after injuries. This implied that the injury had occurred some time ago. However, the substantial haemorrhage in the abdominal cavity suggested at least a second trauma had been inflicted, causing the mesentery to tear.
In summary, Dr Ong’s opinion is that there were at least two traumatic injuries. His report suggested “one fairly remote, more than two to three days, another one could be hours before death”. The cause of death included peritonitis caused by the leakage of the contents of the duodenum into the abdominal cavity. When the child was admitted to the emergency department of the Gold Coast Hospital his haemoglobin level was 46 grams per litre. This low level was forensically important. It indicated to Dr Ong that for the haemoglobin to drop so dramatically there must have been an acute haemorrhage and that the haemorrhaging had been going on for at least four to six hours, possibly longer.
Reports of the child vomiting a green substance in the course of Sunday, 24 May 2009, expressing a desire to have liquids and being unable to raise himself, with pain in the stomach, were consistent with Dr Ong’s findings about the timing of a tear to the duodenum and haemorrhaging of the mesentery.
Dr Ong thought it very unlikely that the child would have been able to swing on a curtain in the early hours of the Sunday morning, as Strbak reported him doing in her first interview with the police.
Dr Little
Dr Little, a forensic pathologist employed by Queensland Health, peer reviewed Dr Ong’s report, and shares the opinion that there were at least two episodes of blunt force trauma to the abdomen. This was evidenced by bruising and healing reactions around the rupture site and the nature of the tears to the duodenum and mesentery. In Dr Little’s opinion, if the duodenum had been almost transected for several days, she would have expected much more severe inflammation than was present. According to Dr Little, and based upon Dr Ong’s report that there was 250 mls of blood and intestinal contents at the time of autopsy, there was a significant haemorrhage. A blood loss of 250 mls would be about 20 per cent of Tyrell’s expected blood volume. This was a significant blood loss but would not cause death alone. Instead, the transected duodenum would allow bowel contents to enter the abdominal cavity and increase the amount of shock caused by haemorrhaging.
In her oral evidence, Dr Little explained that the fact that Tyrell did not have widespread, severe peritonitis, but had a very large haemorrhage suggested a second injury closer to the time of death. The fact that the blood appeared to look fresh to Dr Ong suggested to Dr Little that although Tyrell sustained an injury in the days before his death, which explains the period of inflammation, this initial injury to his duodenum and also to the mesentery was made worse in the hours prior to this death.
Dr Little described Tyrell’s haemoglobin level at the time he presented to the emergency department of the Gold Coast Hospital as extremely low. He had normal haemoglobin on his earlier admission to hospital, excluding the possibility that he was anaemic. A tear to the mesentery was a likely source of blood loss. Although Dr Little did not completely exclude the possibility that the second application of force could have been as recent as a half an hour or so before the child collapsed and required resuscitation, she doubted whether the blood loss was caused in such a short period. This is because the blood vessels in the mesentery are not that large.
Dr Kimble
Dr Kimble is a highly qualified consultant paediatric surgeon, and the Director of Burns and Trauma at the Lady Cilento Children’s Hospital. His qualifications include the Degree of Doctor of Medicine (Research). He reported to the Coroner and concluded that Tyrell received severe blunt force trauma to his abdomen, consisting of one or more blows. These injuries would have been the result of a focused injury such as a kick or a punch or a blow from another blunt object. Having regard to the evidence before him in 2014 when he provided his report to the Coroner, he concluded that it could have taken at least 36 hours for Tyrell’s injury to cause death. However, if Tyrell had suffered a tear to his duodenum on Friday, 24 May 2009, the pre-school staff would have noticed the effects of peritonitis. Dr Kimble is of the view that the injury would have happened after that time and that there would have been increasing abdominal pain from the peritonitis, with Tyrell being very unwell from the few hours after the bowel perforation until death. He would have become progressively dehydrated and felt thirsty, but anything he drank would be vomited.
In his oral evidence, Dr Kimble explained the progress of the condition and that Tyrell’s condition would have taken some time to develop. His level of haemoglobin taken at the Gold Coast Hospital showed profound anaemia. Dr Kimble concluded that it was possible that Tyrell had suffered more than one blow to the abdomen. However, it was possible for a child in Tyrell’s position to have survived with a tear to the duodenum for some time. Further, a duodenal injury may be difficult to diagnose, with acute sickness taking some time to be established. According to Dr Kimble, in the hours before death, Tyrell would have been in extreme pain and unable to move because of the peritonitis. From his analysis of the evidence, Dr Kimble rejected the view that the tear to the duodenum happened within an hour of the child’s collapse. This was insufficient time for the peritonitis to have taken effect. According to Dr Kimble, having regard to the inflammation in the abdominal cavity, something had been irritating it for a period of 24 to 48 hours.
Dr Duflou
Dr Duflou, a consulting forensic pathologist, agreed that whilst it was possible that there was only one impact causing the fatal pathology, he preferred the view that there were probably two or even more blows. Whilst acknowledging that it was possible that the last blow was sustained in the 25 minute period when Tyrell was in the unit with Scown on the Sunday night, Dr Duflou was unable to provide an opinion about the timing of the last blow. He also gave evidence that Tyrell’s low haemoglobin did not mean that the final event did not occur a short time prior to collapse. The tear to the mesentery which led to the blood loss could have occurred some hours earlier.
According to Dr Duflou, the amount of inflammation in the inner lining of the abdomen was not particularly excessive and not such that one would expect it to have been there a number of days. He thought it likely that there was a further event which occurred and which resulted in a further deterioration and a further rupture of the duodenum and of the mesentery. It is possible that a large tear of the duodenum may be masked. He agreed that a relatively straightforward fall up the stairs would not cause injuries of this severity.
Dr Robertson
Dr Robertson is a specialist in forensic medicine and pathology based in Melbourne. Her report dated 20 May 2015 opined that the inflammatory changes associated with the abdominal injuries would have taken 24 to 48 hours to occur and were probably inflicted some time on 23 May 2009. In her report she could not exclude the possibility of further blunt force trauma at a later time in the hours before death, resulting in acute deterioration. This is because if all of the abdominal injuries occurred about 36 hours earlier, she would have expected the child’s condition to have been worse and that he probably would not have survived as long as he did. In her oral evidence, Dr Robertson expressed the opinion that it was likely that there was a second application of force, but was unable to place a time upon it. Under cross-examination she accepted that it was possible that the initial injury happened on Friday, 22 May 2009.
Timeframes and opportunities to perpetrate assaults
There were times on the weekend on 23 and 24 May 2009 when Strbak, Scown or Danial Allan was alone with the child in a room, and times that weekend when Strbak or Scown was the only person in the unit with the child. For example, Strbak would have been alone with Tyrell in the bedroom they shared, and alone with him when Scown left the unit to obtain food. By way of further example, Scown was alone with the child on Saturday night during the time that Strbak left and he was cooking dinner. Danial Allan was with Tyrell on the Saturday and again on the Sunday when they watched films together. It seems that either Strbak or Scown was in, or in the vicinity of, the unit when Tyrell was on his own with Allan.
The defence emphasises the fact that Scown was present alone with the child on the Sunday night, after Strbak and Allan left the unit together. Some evidence suggests that Strbak was away for about 25 minutes. This is the period between 9:10 pm, when Strbak told police she went out, and the time when Scown made a 000 call.During this period the child became extremely ill, and was in a parlous state when Strbak returned. This leaves open the possibility that Scown inflicted the second fatal blow during this period and that this blow, and fresh haemorrhaging caused by it, accelerated Tyrell’s decline and death. While this is a possibility, the medical evidence indicates that the second blow could have been inflicted at any time over a period of hours that Sunday. The medical evidence indicates that Tyrell would have been very sick by late on Sunday because of the effects of the first fatal blow which may have occurred a day or two earlier. His final and rapid decline some time after 9 pm on Sunday, 24 May 2009 does not mean that the second blow occurred after 9 pm on Sunday. It is consistent with the combined effects of the fatal blows, triggering shock to a physically weak little boy who had been vomiting all day and for much of Saturday.
Telephone communications between Strbak and Jason Cobb that weekend and her request that Cobb take Tyrell from her
An important and contentious piece of evidence is that on the weekend of 23 and 24 May, Strbak spoke to Jason Cobb by telephone and requested that he take Tyrell from her. Jason Cobb gave sworn evidence that she did and, for the reasons which follow, I am persuaded of that fact. Cobb did not initially mention this matter to police when he spoke to them on the Tuesday. This calls into question the content and timing of the relevant conversations. The fact that he did not mention the conversation when he first spoke to police is significant, but explicable. He was a grief-stricken father who had many more important things to think about. He may not have suspected the worst of Strbak. When he recalled the relevant conversation or conversations, he suggested that a conversation about taking Tyrell occurred at night, and occurred on the night he died. Cobb gave evidence at a committal on 11 November 2009, and made further statements in 2015 about the case, including statements to the Crime and Corruption Commission. On

6 July 2015, about six years after the event, he told the CCC of a telephone conversation with Strbak when he was home at Lightning Ridge in the company of a friend, Warwick Spicer. His evidence to the CCC was that Strbak said:
“Do you want to come and pick your son up?”
to which he replied that of course he did. He recalled that this conversation occurred late at night and that it was impractical to drive to the Gold Coast straight away, a journey that would take between eight and ten hours. Instead, he understandably decided to stay the night in Lightning Ridge and call Strbak the next day to see how she was then feeling about the matter.
His recollection was that in the conversation he asked Strbak when he could come and pick Tyrell up, to which she said:
“Oh leave it with me. I’ll have to talk to Diane and see when it’s a good time for you to come down.”
This gave Cobb the false impression that Strbak’s mother and father might have been at the unit, in which a bedroom was reserved for their use. Cobb was not sure what Strbak meant, but thought he would clarify matters the next day. When he gave his evidence to the CCC in 2015 he could not be sure whether the conversation occurred on the Saturday night or the Sunday night. He explained that he did not initially tell police about the conversation because it “completely went over his head” at the time he spoke to them on Tuesday, 26 May 2009.
The timing of telephone conversations between Strbak and Cobb that weekend does not depend entirely upon recollection. There are comprehensive telephone records and Exhibit 87 conveniently compiles telephone calls, including calls which Strbak made from a nearby payphone. They are consistent with Cobb making regular calls of an evening to Strbak’s phone in order to speak to his son before his son went to sleep. There are calls from Cobb to Strbak’s phone on many evenings, including the evening of Friday, 22 May 2009 at around 8:40 pm when there was a conversation which took about four and a half minutes.
On Saturday, 23 May 2009, call records indicate a number of telephone calls between Jason Cobb and Strbak. It seems that Strbak called him from a payphone at 6:20 pm. The call lasted just over three minutes. Jason Cobb called Strbak’s phone at 6:51 pm and the call lasted one minute. Strbak called him again at 8:33 pm. It was a very short call, probably to save her phone credit. He then called her phone at 8:34 pm and the call lasted more than three minutes. She sent him a text at 8:40 pm.
On Sunday, 24 May 2009, Strbak sent another SMS to Cobb’s phone at 1:51 am. She made a three second call at 4:12 am, and another call of only four seconds at 9:28 am.
At 7:48 on the Sunday night Strbak made a call from a payphone at Biggera Waters to Cobb. The call lasted one minute and four seconds. This timing is reflected in agreed fact 56. Danial Allan heard Strbak and Scown arguing on the verandah of the unit. He heard Strbak saying she was going to the payphone, and that she left the unit and made that call.

Not long before this contested hearing, and I infer after being questioned about the timing of the relevant calls, Jason Cobb adopted the position that the telephone call in which Strbak asked him to take Tyrell from her occurred on the Saturday. In any event, he recalled a conversation that occurred one morning. His evidence was that the call occurred at around 10 or 10:30 in the morning and that Strbak asked:
“Can you come and pick up this boy? I can’t handle him no more.”
Cobb says that he asked what was wrong and she just said, “Come and get him. I can’t handle him”. His evidence was that Strbak sounded very frustrated and his impression was that “she just didn’t really want to deal with Tyrell any more”. This was what he inferred by what she had said.
Jason Cobb was “over the moon” that he could have his son back. Strbak’s suggestion that he take the boy to live with him was unexpected. Strbak had the primary care of Tyrell. On occasions when he would ask to come and see Tyrell on the Gold Coast, Strbak would say things like “Something’s happening this weekend”, or “Not a good time”. She had never previously suggested that Tyrell should go and live with Cobb, despite Tyrell asking “Can we come (and) live with you, Dad?”
I am persuaded that a telephone conversation substantially to the effect described by Jason Cobb occurred that weekend. Jason Cobb impressed me as an honest witness. Giving evidence and being cross-examined about the circumstances leading up to his son’s death could not have been easy. I did not detect any malice in his evidence directed towards Strbak or Scown. He did not try to suggest that Strbak was a bad mother. Mr Cobb visited Tyrell and Strbak on the Gold Coast late in 2008 and early in 2009. The last time he saw Tyrell was a few months before he died. When Mr Cobb washed or showered Tyrell he did not notice any suspicious bruises or scars. He had bruises and scabs of the kind one would expect on a normal child who suffers bumps and accidents. Mr Cobb had never noticed any suspicious injuries to Tyrell when he and Strbak were living together. He had never seen her use excessive force on Tyrell when they were living together. When he was on the Gold Coast for about two weeks over the Christmas period, things seemed good. He did not see anything that concerned him about Tyrell. If anything, there were occasions when Strbak was overprotective towards Tyrell.
When Mr Cobb came up to the Gold Coast just after Tyrell died, he was very emotional. Because he had never seen Strbak being violent to Tyrell, the thought that she had injured him did not cross his mind. This point assumes significance in assessing the contested issue of whether Strbak asked Mr Cobb to take Tyrell from her that weekend, and, if she did, why he did not report that conversation when he spoke to police on Tuesday,

26 May 2009.
Given my favourable assessment of Mr Cobb’s credibility and general reliability, and considering probabilities, I find it very improbable that he has imagined a conversation that did not occur. The telephone records bear out the fact that there were a number of telephone communications between Cobb and Strbak that weekend. It is possible, indeed probable, that the topic of Tyrell going to stay with Cobb was discussed in more than one telephone call. It is understandable that in attempting to recall the relevant conversation or conversations, Mr Cobb recalled a telephone conversation on either the Saturday night or the Sunday night and tended to think that the conversation occurred on the Sunday night when Tyrell died. There was, in fact, a conversation between Strbak and Cobb at 7:48 pm on Sunday and I conclude that it probably discussed both Tyrell’s health and tentative plans for Jason Cobb to collect him in the near future. Mr Cobb’s evidence, which I accept, is that on the night of Tyrell’s death Strbak informed him that Tyrell was feeling sick. I find that Strbak did not disclose to Mr Cobb that night just how sick Tyrell had been all weekend, or that he was carrying many bruises.
In retrospect, Mr Cobb must regret not jumping in his car on the Saturday or Sunday once Strbak asked him to take Tyrell from her. However, he was not to know Tyrell’s true condition, and Strbak did not tell him. In addition, it was entirely understandable that he would not travel late at night and make a journey on outback roads, but would wait to speak again to Strbak the next day to see if her request stood or whether she had changed her mind.
Mr Cobb’s evidence that there was such a request is supported by the evidence of his friend, Warwick Spicer, who had moved in with Jason Cobb at his unit at Lightning Ridge after Strbak left. Mr Spicer recalled a telephone conversation that weekend which Cobb put on loudspeaker. Mr Spicer’s evidence is that Strbak said:
“You’ve got to come and get Tyrell. I can’t handle this anymore. I can’t deal with him Jason. Please come and get him”.
Mr Spicer thought that the call was in the morning and that later on that night Diane Strbak telephoned with the news that Tyrell had died. As to the relevant call, Mr Spicer said that it was fairly short phone call and that there were a few calls like it that weekend. His recollection is that he and Jason Cobb were going to pick up Tyrell the next day, but they received the phone call that night saying that Tyrell had passed away. I take into account that Mr Spicer did not give evidence about these matters until 2015 when he was contacted by police. However, I am inclined to accept his evidence, and that he has an honest recollection that a phone call to say “Come and get him” occurred one morning. There was a short call by Strbak to Cobb at 9:30 am that Sunday.
I take into account the distinct possibility that, in attempting to recall the relevant conversation or conversations, Mr Cobb and Mr Spicer have each reconstructed what they think was said, rather than recalled the precise words that there said. I also take into account the likelihood that they have spoken to each other about these matters over the years and that this has affected their recollections. However, the evidence of Jason Cobb and the evidence of Warwick Spicer persuades me that Strbak did speak by phone to Jason Cobb that weekend and said words to the effect “Can you come and pick up this boy?”
A call made by Strbak from a pay phone at 6:20 pm on Saturday, 23 May 2009 to Jason Cobb, which lasted just over three minutes, probably discussed the matter. As noted, there was a call which lasted more than three minutes between Cobb’s phone and Strbak’s phone at 8:34 pm. It is possible, and indeed probable, that Jason Cobb spoke to his son during this call, but perhaps not for the entire three minutes. Mr Cobb’s recollection is that he asked Strbak to put Tyrell on the phone, that she did so and that his conversation with Tyrell did not last long. Tyrell sounded tired. After Tyrell said goodnight to his father, Strbak took the phone back and said “He’s too sick to keep talking to you”.
Whilst Strbak contests the allegation that, over the weekend, she requested Jason Cobb to take Tyrell from her, his evidence and the evidence of Mr Spicer about such a request is not contradicted by evidence from her. In the circumstances, I find contested fact numbered 37 proved.
I am not convinced that Strbak added “I can’t handle him” or words to like effect. It is quite possible that she said this to Jason Cobb, since the evidence is that she was not coping well with him that weekend which, incidentally was a period when she apparently did not have cannabis to consume. If she did not in fact say to Jason Cobb “I can’t handle him”, then this was the impression he gained from her frustrated tone and from the unexpected decision to allow him to take Tyrell from her. Therefore, it is possible that Jason Cobb has honestly reconstructed a recollection that words to the effect of “I can’t handle him” were actually used, when this was an impression which was clearly conveyed by other words and Strbak’s tone, but left unstated. By that weekend Strbak was not coping well. A neighbour in an adjoining unit, Ms Dyball, said that Strbak was “stressed out” after she moved back into the unit. Neighbours in nearby units regularly heard her screaming at Tyrell.
Telephone communications between Strbak and her mother that weekend
On the weekend of 23 and 24 May 2009, Strbak’s mother, Diane Strbak, who is a nurse, was residing in Lightning Ridge. The telephone records show a pattern whereby Diane Strbak would call her daughter for up to three minutes so that she did not have to pay for calls. On various dates in May she called her daughter. During a telephone call on Saturday, 23 May 2009, she was told by her daughter that Tyrell had vomited some clear fluids. Strbak also told her mother that Tyrell had fallen up the stairs when returning to the unit, but did not cry.
On Sunday, 24 May 2009 Strbak spoke to her mother by telephone at 10:35 am for just under three minutes, at 4:07 pm for about four minutes, for just over a minute at 5:57 pm, and then in a series of consecutive calls commencing at 8:08 pm until about 8:20 pm. During one of these calls Diane Strbak says that she spoke to Tyrell about a planned trip. He sounded tired. Diane Strbak’s evidence is that she had no inkling that there was anything wrong with him, although she also says that she had been again told by her daughter that Tyrell had been bringing up clear fluids, and one of them was a bit yellow. Diane Strbak recalls Strbak mentioning only one occasion when Tyrell’s vomit was not clear. She acknowledged that her recollection of the content of the calls is unclear because of the passage of time. She thinks that she may have spoken to Tyrell that evening about eating his dinner. However, the evidence is that he did not eat dinner that night and had difficulty keeping even water down. She thought that Tyrell had told her that he had eaten his pasta. Her best recollection is that she spoke to him on the evening of 24 May and that he sounded “a bit tired”.
Other evidence about the extent to which Tyrell vomited throughout Sunday, and just how dehydrated he must have been, is difficult to reconcile with Diane Strbak’s impression that Tyrell “was fine, apart from being a bit tired”. This disparity does not force me to take an adverse view of Diane Strbak’s credibility, and to conclude that she has tailored her evidence to fit the defence theory that Tyrell was not so unwell when Strbak went out some time after 8:30 pm. It is sufficient to conclude that:
1.Diane Strbak was not in a position to observe Tyrell’s physical condition; and
2.Heidi Strbak did not disclose to her mother on the Sunday how sick and injured the child was.
The evidence is that Tyrell repeatedly vomited throughout Sunday, 24 May 2009 and that his vomit was a green colour, with the appearance of bile. He was listless and moved very little. He was taken by Scown to sit out on the balcony to get some fresh air. He was very sick, not just a little bit tired. Diane Strbak was not aware of just how sick he was and could only get an impression from what he said over the telephone. Whilst she may have been able to speak to her grandson some time on the evening of Sunday,

24 May, she did not appreciate from the telephone call or from anything her daughter had told her, just how ill Tyrell was. Moreover, Strbak had concealed from her mother the extent of his illness, and the bruises and other injuries that he carried. Strbak’s withholding of this information from her mother is suspicious since she was in the habit of seeking advice from her mother who is a nurse.
Danial Allan
Danial Allan is the son of Diane Strbak (formerly Allan). Danial Allan met Heidi Strbak when his mother and her father commenced a relationship more than 20 years ago.

Heidi Strbak was a few years younger than Danial Allan and these children got along as brother and sister, along with Danial Allan’s brother, Brad, who is the same age as Heidi. Although Diane Strbak is Heidi’s step-mother, because of the family dynamics I have referred to her as Heidi Strbak’s mother.
Danial Allan met Scown when he was about 18 years of age. He, Scown and friends would smoke cannabis together. They had a shared interest in boats. Scown employed Danial Allan at some stage. Danial Allan and Scown had a falling out when, instead of using money given to him to buy cannabis, Allan went to the hotel and spent the money on alcohol. Scown assaulted Allan after Allan lied to him about the stolen money.
In 2009 when Danial Allan visited his nephew, he had little to do with Scown. Allan told police in a statement dated 22 July 2014 that when he visited Tyrell on 23 May 2009, Tyrell did not appear to be his usual happy self and did not seem to have much energy. Allan saw some bruises on Tyrell that day, on his head, ear and arms. He asked Tyrell what had happened and, according to Allan, Tyrell said something about falling off a bike. He says that Heidi Strbak told him that the bruises were from kindy. That day Allan and Tyrell watched a movie in the lounge room area. He left the unit at around 5:30 pm.
The following evening, at around sunset, Allan returned to the unit. Tyrell looked worse than he had appeared the day before and Allan recalls that he was vomiting green bile.
Later that evening when he was watching another movie with Tyrell, Allan observed that he was “covered in bruises”, including a bruise above his groin area.
While Allan and Tyrell were watching television, Scown and Strbak were arguing loudly, apparently about a phone call.
Allan’s July 2014 witness statement was provided for the purpose of being considered for an indemnity against prosecution. In it he said that at one stage that evening when he was sitting on a lounge chair, Tyrell said to him “Uncle Dan, Matt punched me in the tummy”. Danial Allan gave similar evidence on oath on 10 November 2017. I found his evidence about that alleged conversation unbelievable. If Danial Allan was to be believed, his four year old nephew, who he loved, reported being punched in the stomach by Scown. At that time Scown was not in his peripheral vision but was elsewhere in the unit. Any ordinary person would be furious, and would at least confront the alleged perpetrator of a physical attack on a four year old. Allan did no such thing and could not provide any explanation to me as to why he did not do so. In addition, he did not report the matter, and his concerns, to his sister, the mother of the child. Instead, he and his step-sister left the house not long after, leaving Tyrell in the care of Scown. Allan could not explain why he left the child alone with the alleged perpetrator of such violence. His evidence was that it did not enter his mind that this was something about which he should tell the mother of the child.
Danial Allan’s evidence about being told by Tyrell that Scown had punched him in the stomach is incredible. Strbak’s submissions did not urge me to accept his evidence about this matter.
According to Allan, he did not actually recall this incident until some time after Tyrell’s death, and when he was with a previous partner “I’ve opened up to her, apparently”. It is possible that through some odd mental process, or possibly through the effects of drugs, Danial Allan has honestly, but mistakenly, constructed such a significant recollection. However, I am inclined to conclude that Danial Allan gave untrue evidence in this regard to police and to this Court so as to falsely implicate Scown, and to thereby assist his

step-sister’s defence. Allan was an extremely unimpressive witness in his recollection of this contentious conversation.
Strbak’s unsworn evidence
Strbak spoke to police in the early hours of Monday, 25 May 2009 and in further interviews on the evening of 25 May. She provided an addendum statement to police on 7 July 2009. Police spoke to her again on 10 July 2015.
In her interviews on 25 May 2009 she gave a somewhat confusing account of Tyrell’s condition over the crucial weekend and when she first observed bruises on him. She did, however, say positive things about Scown and his relationship with Tyrell. By 2015 Strbak and Scown were not on good terms and she said adverse things about him. However, at no stage did she purport to witness acts of physical violence or verbal aggression exhibited by Scown towards Tyrell, including on the weekend of 23 and

24 May 2009.
I treat her unsworn evidence with reserve. Her account of how ill Tyrell was does not align well with observations made by Scown or with the medical experts about how ill Tyrell must have been late on Sunday, 24 May 2009. Her plea of guilty to manslaughter is on the basis that the child was obviously unwell and required urgent medical treatment, that she was criminally negligent in failing to obtain it, and that her criminal negligence caused her child’s death. The reliable evidence about Tyrell’s condition that day, and the admissions which are implicit in her guilty plea, cannot be easily reconciled with her statements to police, which tended to minimise how sick he was that day. In her initial interview with police Strbak suggested that Tyrell must have choked on his vomit.
A lawfully intercepted telephone call on 11 June 2015 between Strbak and her

step-brother, Bradley Allan, is instructive about her honesty and preparedness to lie. She and her step-brother discuss what they should say to the CCC and joke about lying. They construct an account of the evidence that will be given about her movements on the Saturday night and a false explanation about why she went out. Strbak seems to admit that she has lied for half of her life and knows how to lie.
Despite the reservations which I have about Strbak’s credibility and the reliability of many of the things which she told police, I remind myself that my rejection of parts of her evidence or disinclination to accept it when it conflicts with other, more reliable evidence, does not necessarily lead to the conclusion that the contested facts are thereby proven. The onus remains upon the prosecution to prove the contested facts, if it can. In addition, my reservations about the credibility and reliability of parts of her account of events does not automatically bolster the credibility and reliability of certain prosecution witnesses, such as Scown. The evidence relied upon by the prosecution must warrant acceptance in its own right.
In addition, the decision of Strbak not to give sworn evidence and to verify contentious parts of her statements to police means that I accord that evidence less weight than I would accord it if given on oath, and tested by cross-examination.
To the extent that there is a conflict between the sworn evidence of Scown and the unsworn evidence of Strbak, including about the course of events that weekend, I prefer the evidence of Scown. This is not only because it was tested by cross-examination. It is because it accords with the medical evidence of Tyrell’s probable condition that weekend, including his condition late on Sunday. I also have reservations about the credibility and reliability of Strbak’s account of events to police because the evidence shows that she lied to police about what she did and where she went that weekend, and in 2015 spoke to her brother, Bradley Allan, about lying to the CCC.
I conclude that Strbak did not give an accurate report of Tyrell’s condition to her mother. Therefore, Diane Strbak’s impressions of Tyrell’s condition on the Sunday night were based neither on personal observations nor accurate reporting of his condition. Strbak’s concealment from her mother of Tyrell’s true condition is a significant piece of circumstantial evidence in the prosecution case against her.
Assessment of Scown’s evidence

To the extent that the defence argument relies upon evidence from Strbak, Danial Allan and Diane Strbak to the effect that Tyrell was not very unwell on the Sunday night, I have found their evidence unreliable.
On the medical evidence, the second injury could have occurred at any time over a period of hours. Therefore, it is possible that it occurred in the 25 minute window of opportunity pointed to by the defence. It is more probable that the second injury occurred at some stage in the preceding hours, possibly at around 3:30 pm when Ms Dyball heard a scream from a child and then silence. Strbak was present in the apartment at that time. Whilst I have regard to the possibility that the second blunt force trauma occurred after 9:10 pm and when Tyrell was alone with Scown, this possibility is not sufficient to establish, in conjunction with other evidence, a compelling case against Scown.
In addition to considering the possible timing of the second application of blunt force trauma, consideration is required about when the first blunt force trauma was inflicted, namely a day or so before Tyrell’s death, being an injury which caused him to begin to vomit on the Saturday and to continue to vomit throughout the Sunday.
I will return to the question of possibilities, including whether the possibility that Scown inflicted the second blunt force trauma injury is sufficient to not be satisfied that the prosecution case on the ultimate issue has been proven on the balance of probabilities.
The argument that men are more aggressive than women
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.
Strbak was frustrated by Tyrell that weekend and slapped him on the face in front of Scown. She was prone to aggression when not on cannabis and she did not have cannabis to use that weekend. Her request to Jason Cobb that weekend to come and get Tyrell indicated her frustration and an inability to cope with Tyrell. It also suggests her recognition of the fact that she had injured him so as to cause the bruising that was observed by Danial Allan early on Saturday afternoon.
On the Sunday Strbak concealed Tyrell’s true condition from her mother and from the child’s father, and refused, despite Scown’s suggestions, to take Tyrell to obtain medical assistance.
The hypothesis or possibility that Scown inflicted the fatal injuries arises because he also had the opportunity to inflict the injuries, and some of the medical evidence leaves open the possibility that the second blow was inflicted late on the Sunday night when Scown was alone with the child. However, the existence of possibilities left open by the evidence is not enough to defeat a prosecution case, even a prosecution case which must be proven beyond reasonable doubt. Whether the standard of proof be beyond reasonable doubt or, as here, on the balance of probabilities, the judge or jury deciding the facts must be satisfied to the requisite standard of proof and if proof is on the balance of probabilities, have the degree of satisfaction required in the circumstances of the case. The existence of a circumstantial case against Scown and the matters relied upon by Strbak in support of a circumstantial case against him do not necessarily prevent the prosecution proving its case against her.
In summary, there is no compelling evidence that Scown inflicted the fatal injuries that weekend. The hypothesis that he did so is principally based upon his conduct in kicking Tyrell in the backside on an earlier occasion, the opportunity which he had to inflict the fatal blows that weekend and suspicions aroused by Tyrell’s fall in the shower. The same hypothesis is weakened, however, by his early disclosure of having kicked Tyrell in the backside, his admission to police of having done so and acts of care for Tyrell. These include caring for the child’s injured arm and making a sling for him, and requesting Strbak to take him to obtain medical treatment for the swollen arm when Strbak was more interested in seeing her drug dealer. It extends to Scown, rather than Strbak, being the person who called the locum medical service to get treatment for Tyrell’s injured and infected finger. Also, it was Scown, not Strbak, who cooked the child’s dinner and showered him on the Saturday night. I consider the possibility that these acts of care were accompanied by other discreditable acts of aggression which were not seen or observed by Strbak, her step-brother or neighbours. However, no-one reported Scown behave aggressively towards Tyrell, let alone see him inflict physical violence on the child. It was Scown who twice suggested on the Sunday that Strbak seek medical treatment for her ill and injured son. On both occasions Strbak declined to do so because she feared that taking her son to the hospital or to a doctor would enable them to see the bruises which she had inflicted and that she would be “done for neglect”.
The circumstantial case against Scown is weakened by the compelling circumstantial case against Strbak. Scown denied inflicting the injuries, including the fatal injuries, which Tyrell sustained in the days immediately prior to his death. I accept his denials in the light of my assessment of all the evidence. I have accepted Scown’s evidence in relation to certain critical matters about what he observed, and what Strbak said to him. I have also generally accepted the evidence of Jason Cobb about what Strbak said to him that weekend.
In deciding the ultimate issue of whether I am satisfied that Strbak caused serious

non-accidental injuries, including the fatal injuries, I avoid reasoning that because Strbak inflicted a scar on her son’s leg with her hot cigarette lighter, frogmarched him so as to cause bruises to his arms and hand and slapped him on the face the night before Tyrell died, she therefore must have inflicted the fatal injuries and the other injuries that were inflicted that weekend. Those facts, however, illuminate the true nature of the relationship between Strbak and her son. Strbak was prone to aggressive behaviour towards Tyrell, as observed or overheard by neighbours. She was prone to be aggressive when not using cannabis and was likely to become exasperated with Tyrell that weekend, following a series of accidents which had befallen him. Just as I avoid reasoning that Strbak inflicted the fatal injuries because she had earlier inflicted less serious injuries, I avoid reasoning that because Scown kicked Tyrell in the backside he therefore must have inflicted the fatal injuries and other injuries which Tyrell sustained on the weekend of 23 and 24 May 2009. The act of kicking the boy in the backside supports the hypothesis that he may have inflicted the fatal injuries. However, that hypothesis lacks much support from other reliable evidence.
The circumstantial case against Strbak, and the circumstantial case against Scown, have certain common features, including at least one episode of physical aggression towards the child and the opportunity to inflict the fatal injuries. Despite these common features there are important differences. Scown’s act of kicking Tyrell in the backside was admitted by him at the time, and reported by Tyrell to both his mother and to his grandmother. It was reported by Scown to police at a very early stage. By contrast, Strbak’s acts of scarring and slapping her child were not admitted. They were not reported by Tyrell to others, it would seem. Strbak concealed the truth about her son’s injuries and illness from even her mother. She lied to the police and was prepared to lie to the CCC.
The sworn evidence given about Strbak slapping her son’s face on the night before he died, and of previously frogmarching him into his room, was not contradicted by sworn evidence from her. Her request to Jason Cobb that weekend to come and get Tyrell remains unexplained by her to this day. For example, it is not suggested that she made this request because she apprehended that Tyrell was at risk from Scown. The obvious inference is that she was not coping, and that the bruises which were observed on Tyrell on the Saturday were inflicted by her. The proposition that she was not coping is supported by direct evidence of the frogmarching and slapping incidents, as well as circumstantially by the stresses associated with Tyrell’s recent hospitalisation arising from accidents. When asked by police about the bruise to Tyrell’s ear, Strbak lied and suggested that the bruise was caused by the fall from the playground fort which had occurred about 13 days earlier. Associate Professor Sullivan explained why it was very unlikely that the ear bruise was caused by such a fall. Even if it had been, it would not have been apparent some 13 days later, having been overlooked by doctors, nurses and pre-school staff. Strbak falsely attributed to the pre-school an injury to Tyrell’s ear which she inflicted much closer to the time of his death.
Strbak’s failure and refusal to take Tyrell to hospital on Sunday, 24 May 2009, when any reasonable person would have done so, given the state the child was in, has not been satisfactorily explained by her. Scown suggested such a course but she refused to take Tyrell to the hospital or to a doctor because she feared what an investigation into his bruises, injuries and illness would reveal. She explained her reluctance to Scown on the basis that doctors or nurses would notice the bruise on Tyrell’s cheek, which Scown had observed and which he attributed to the slap which he had seen the night before.
Strbak had more to fear from a child protection investigation being initiated by medical staff than the revelation that she had slapped her child once on the face in an act of frustration. Any investigation would have been required to assess the variety of bruises and injuries on Tyrell’s face, head and body, and the improbability that all of them were due to accidents. Strbak’s conduct in not seeking treatment for her son is explained, particularly in the absence of any sworn evidence from her, by her appreciation that investigations into his condition and his injuries would implicate her. Her conduct in requesting Jason Cobb to collect the child, like her conduct in not allowing the child to go to hospital, is explained by her knowledge of the injuries which she had inflicted.
I am conscious of the seriousness of concluding that Strbak inflicted injuries to her son in the days prior to his death, including the fatal abdominal injuries. There is, however, a compelling circumstantial case that she did so, and I am satisfied to the degree required that the prosecution has proven its case on the balance of probabilities.
In addition to the other contested facts which I have found proven, I am satisfied to the required standard that Strbak applied the blunt forces that were a substantial cause of her son’s fatal abdominal injuries.

ANNEXURE

Schedule of Agreed and Contested Facts

□ Agreed facts
□ Contested facts

Introduction

The deceased child Tyrell Cobb was 4 years and 3 months old at the time of his death.

At 9:37pm on 24 May 2009 Matthew Scown, then in a relationship with Tyrell’s mother the defendant Heidi Strbak, made a 000 call in which he stated Tyrell was vomiting and it was coming out of his nose. Scown stated Tyrell had “gone all limp and it’s like he’s just not there” and “looks like he’s gonna die on me. He’s just woken up he had spew coming out of his nose and his mouth.” He later reported Tyrell had no pulse and he was doing mouth to mouth on him. An ambulance was dispatched to the address.

During the call Tyrell’s mother, Strbak arrived at the address. Neighbours also attended the unit and assisted in rendering first aid to the child. Tyrell was observed to be wet and only clothed in shorts.
At approximately 9:45pm the ambulance arrived at the address. Scown waved them down in the street and indicated “he’s not breathing, he’s not breathing” and “hurry up, hurry up, he’s turning blue, he’s not breathing”. Paramedics told Scown to bring Tyrell down. Scown left and returned with Tyrell in his arms. Scown indicated to paramedics that Tyrell had been “vomiting green stuff.”
Paramedics examined Tyrell and noted the following:

a.He was wet;
b.He was limp;
c.His eyes were open and non-responsive;
d.His facial skin was pale and cyanosed;
e.He had marks on forehead and arms;
f.He had dark rings around eyes;
g.There was no blueness around mouth; and
h.He had no heart rhythm.

Paramedics started CPR. At that time Strbak approached and the paramedics asked her what had happened. Strbak responded that the child “had a fall in the shower Saturday night that she kept him awake all night so he wouldn’t suffer from concussion and that he had been vomiting all day.” Scown reported that Tyrell had been vomiting and “just become unconscious.”

Tyrell was transported to Gold Coast Hospital by ambulance with Strbak. The child was examined at the hospital and found to have no pulse. At 10:25pm the child was declared deceased. Doctors noted numerous bruises on the child all over his body.

Tyrell was born on 25 February 2005 and was the biological son of Heidi Strbak and Jason Cobb. Tyrell was born in the Gold Coast Hospital, Southport. After Tyrell’s birth his parents returned to Lightening Ridge with their child. Strbak and Cobb separated in 2008 and Strbak moved to the Gold Coast.

Whilst Strbak and Cobb lived together in Lightening Ridge, Strbak would take Tyrell to the family doctor when ill and his vaccinations were maintained.

Tyrell did not suffer from any known allergies.

Whilst Strbak and Cobb lived together in Lightening Ridge, both parents would on occasion discipline Tyrell with an open hand smack to the buttock. No other physical discipline was implemented by either parent upon their child.

Relationship between Scown and Strbak

Scown met Strbak through her brother Danial Allan whom Scown had known for about 10 years. Their relationship commenced around November 2008. At that time Strbak had Tyrell who was 4 years of age. Scown also had son Haydyn, who was also 5 years old, from a previous relationship. His son resided with his ex-partner.

When their relationship commenced Strbak was residing at 5/76 Brighton Street, Biggera Waters. Scown would at times visit or stay with Strbak at the unit. Scown was not residing there with her and Tyrell during that first period she lived at that residence nor when she later lived at 6/45 Bayview Street, Runaway Bay.

Prior to Tyrell’s death both Strbak and Scown had been residing together at 5/76 Brighton Street, Biggera Waters. Strbak had moved back into that unit on 16 May 2009 and the unit was owned by Strbak’s parents.

Timeline of Events

In December 2008 Strbak moved into 5/76 Brighton Street, Biggera Waters with Tyrell. Tyrell commenced attending Kindyland at Harbour Town on Monday, Tuesday and Fridays.

On or about 17 February 2009 Strbak moved into 6/45 Bayview Street, Runaway Bay.

During the time Strbak was residing at Bayview Street, other residents observed her to act abusively and aggressively towards Tyrell. They would hear her yell at the child and also observe her grab his arm and drag him. They also heard Tyrell screaming and crying and the sounds of smacking or hitting coming from inside their unit.

On 11 May 2009, Tyrell was attending the Kindyland centre and told staff he had a sore arm and indicated to the fort area of the playground. This was reported to Strbak who collected him from the centre shortly after 4.00pm.

Scown attended Strbak’s unit at Bayview Street. Scown manufactured a sling for Tyrell using a pillow case. Scown encouraged Strbak to take Tyrell to the hospital. Strbak told him she would do it later as she wanted time to obtain cannabis from Brett Archer.

Scown contacted Jason Cobb and advised him of Tyrell’s incident at childcare.

Strbak attended Chevron After Hours Medical Service at Nerang Street, Southport with Tyrell at 7:28pm. There was swelling and pain to his right elbow and forearm, with a reduced range of movement. A fracture was suspected and referral made to the Gold Coast Hospital.

Strbak then took the child to the Emergency Department of the Gold Coast Hospital at 7:36pm. Tyrell had pain at his right elbow and was unable to extend his arm. He was diagnosed with a possible fracture to his right arm and a long arm cast was applied. He was discharged with instructions to attend the fracture clinic on 15 May 2009.

Strbak spoke to Tyrell’s teacher, Timothy Smith on 12 May 2009 and advised that Tyrell would not be back at the centre until the following Monday, 18 May 2009.

On 14 May 2009, Scown and Strbak were packing up her belongings at her unit in preparation of her move back to 5/76 Brighton Street, Biggera Waters.

That afternoon Scown had propped open Tyrell’s toy box with a toy so that Tyrell could reach in to take toys. Tyrell jammed his hand in the toy box. Scown assisted Tyrell and he reported to his mother that he had hurt his hand in the toy box.

Strbak attended the Biggera Waters Medical Centre with Tyrell on 15 May 2009 at 3:09pm. Tyrell was noted to have a “skin injury” to his left hand and the area was “swollen”. It was reported that the child’s finger was caught in the lid of a toy box. He was prescribed the same antibiotics he had been provided on earlier occasions at the medical centre in April 2009.

On that same day, 15 May 2009, Strbak and Tyrell failed to attend the appointment at the fracture clinic at the Gold Coast Hospital.

On 16 May 2009 Strbak moved into 5/76 Brighton Street, Biggera Waters. Scown was staying with her at the address.

At 6:19pm that night a call was placed by Scown to the Medcall (a locum medical service) about Tyrell’s finger injury. A doctor responded and attended the unit and noted the left hand of Tyrell was swollen with ring finger “highly inflamed – weeping and blistery”. They were referred to the hospital.

At 8:45pm that night Strbak, Scown and Tyrell went to the Emergency Department of the Gold Coast Hospital. A radiograph taken indicated that Tyrell had an undisplaced fracture at the base of his finger (the fourth digit of his left hand). During his overall initial examination his abdomen was noted to be soft and non-tender and his bowel sounds normal. Tyrell was admitted to hospital and given intravenous antibiotics. The long arm plaster on Tyrell’s right arm was removed after an x-ray excluded a fracture.

Tyrell vomited food at 7:20pm on 19 May 2009. It was the only recorded time he vomited during his stay at the hospital. It was recorded as an isolated episode.

At midday on Wednesday, 20 May 2009 Tyrell was discharged from hospital. Tyrell was observed to be well by physicians at the hospital. There was a follow up appointment booked for Orthopaedic clinic on 22 May 2009.

On 22 May 2009, Tyrell attended Kindyland. Strbak reported Tyrell’s hand injury to staff. Staff noted no other injuries to Tyrell through the day of his attendance.

Strbak collected Tyrell from the centre at around 4:00pm that afternoon.

There was no attendance to the scheduled Orthopaedic hospital appointment on 22 May 2009. Strbak did not take Tyrell to the appointment as she had been informed that there was no fracture by the Hospital Staff.

Tyrell remained at the unit at Brighton Street until his death in the evening of 24 May 2009. During his last days in the unit he was in the care of Strbak and Scown.

Over that weekend, Strbak contacted Jason Cobb and requested that Cobb take Tyrell from her.

On the Friday or Saturday night, Tyrell was slapped in his face by his mother, leaving a bruise to his face.

On the same weekend, when Tyrell had vomited, Strbak grabbed his wrist and struck Tyrell to the back side of his rib cage as she walked him to his room.

Over the weekend Scown had told Strbak to take Tyrell to the hospital or to a doctor. Strbak refused to do so as she would be blamed for the bruise to her son’s face.

Strbak told Scown that others would think she was neglectful in the care of her child.

That morning, Saturday, 23 May 2009, Tyrell was downstairs from the unit with Scown. Strbak was inside of the home. As Tyrell made his way back up the stairs to the unit he fell forwards on the stairs over his stomach. Scown was following Tyrell up the stairs. Tyrell told his mother that he had fallen and hurt his legs and belly.

At around lunch time on 23 May 2009, Strbak’s brother Danial Allan attended and observed Tyrell to lack energy and not be his “usual happy self.” He noted Tyrell to have bruising on his head, ear and arms. Stbrak indicated to him that the bruises were from Kindy. Tyrell and Allan watched a movie in the lounge room and then Allan left at about 5.30pm.

That evening Strbak left the home to obtain cannabis from Brett Archer.

Scown took Tyrell to have a shower that evening whilst Strbak was out. Scown left Tyrell alone in the shower and heard a bang. Tyrell was on the floor of the shower.

When Strbak returned to the home, Scown told her that Tyrell had hurt himself in the shower.

Strbak noticed that Tyrell was still vomiting, as he had been earlier that day. Tyrell continued to vomit through the night.

After showering Tyrell on Sunday morning, 24 May 2009, Strbak showed Scown a large bruise above Tyrell’s groin.

Tyrell told Scown that “it was OK for Mr Timmy to touch him”.

Strbak applied bruise cream to her son.

Tyrell repeatedly vomited through the day of Sunday, 24 May 2009. His vomit was green/dark green in colour. Tyrell could not sit up. Tyrell could not keep food or liquids down through the day.

At sunset on 24 May 2009, the evening of Tyrell’s death, Allan attended the unit again.

Allan noticed that Tyrell was vomiting and throwing up “Teenage Mutant Ninja Turtle” green into a red bucket. Allan saw Tyrell do this three or four times. Strbak told Allan that Tyrell was sick from the antibiotics he was taking for his hand injury.

Allan observed further bruises to Tyrell than from the day before.

Scown drew Allan’s attention to a large bruise that was above Tyrell’s groin area. Tyrell told Allan that “it was OK for ‘his teacher’ to touch me”. They watched another movie.

Allan heard Strbak and Scown arguing on the veranda. Allan heard Strbak say she was going to the phone box and she left the unit. A call was placed by Strbak to Jason Cobb from the payphone at 7.48pm.

At approximately 8:30pm Strbak asked Allan if he wanted to go for a drive to their brothers to get cigarettes. They then left the unit together. Tyrell was left sleeping in the bedroom and Scown was on the couch in the lounge room.

After Tyrell’s death, Strbak later informed Jason Cobb that she and Allan had gone to Brad’s to “score a fifty” of cannabis. Stbrak had gone to her brother’s to get cannabis leaving Scown home alone with Tyrell.

Scown was watching TV and heard a “gargling noise” coming from Tyrell’s room. Scown checked on Tyrell and he was limp. Scown took Tyrell into the shower and turned the shower on. Tyrell was not responding. Scown placed Tyrell on the floor and tried to call Strbak. Scown contacted 000 and started administering CPR. Strbak arrived home with Allan whilst Scown was assisting Tyrell and on line with 000.

The day following Tyrell’s death police conducted an examination at the unit. Green/black coloured vomit was located on the carpet in the hallway in front of the linen cupboard. A similar coloured stain was observed on the bottom area of the linen cupboard door.

A red bucket was located in the bedroom where Tyrell slept and there were numerous drying green/black stains on the inside bottom of the bucket. One of these stains tested presumptively positive for blood. A red coloured stain was located on the bottom of the bedroom door which tested presumptively positive for blood.
Subsequent DNA analysis confirmed samples taken from the above stains to match the DNA of the deceased child.
Police also located a tube of Lanosil ointment beside a handbag on a table near the dining room. Lanosil ointment can be used to reduce inflammation, relieve pain and aid in the healing of bruises.

Tyrell’s injuries

An autopsy was performed on Tyrell. The injuries noted are detailed on an attached schedule.

Tyrell’s cause of death was found to be a transected duodenum in the abdomen of the child with associated laceration of the mesentery. Those injuries caused leakage of the child’s stomach contents and bleeding in the abdominal cavity.

The combination of both the haemorrhage (bleeding) and peritonitis (caused from the leaking stomach contents) resulted in shock and the eventual death of the child.

The cause of the abdominal injuries was blunt force trauma of at least a moderate degree of force from one or more impacts. Possible mechanisms include a blow from a fist, foot, or blunt object.

Another opinion indicated the internal injuries are consistent with a small perforation to the duodenum with an extension of that injury shortly (hours) prior to the death. (two episodes of trauma). The initial injury would require severe force but that a moderate force would only be required to exacerbate the injury.

There was a bruise near the belly button of the child noted to be directly in front of the abdominal injuries.

Strbak had applied blunt force trauma to her son causing the abdominal injuries substantially resulting in Tyrell’s death.

Dr Roy Kimble, a Paediatric Surgeon, opined leading up to his death Tyrell would have been in extreme pain and have been very sick from the time of injury until death. Every movement including breathing and vomiting would have caused extreme pain. He would have been sore from the time of the injury and would have progressively got worse over the first 24 hours. He would not have taken any significant food or water after the first 12 hours. He may have felt thirsty due to dehydration and would have been lethargic. Vomiting would have been bile-stained (green) as his condition got progressively worse. He would have developed a fever at around 24 hours which would have persisted until his death. His symptoms would have been easily recognised as requiring urgent medical treatment by any lay period from around 12-24 hours post injury. He would have difficulty moving around after 24 hours and would have stopped being able to communicate around 48 hours.

The injuries Tyrell sustained were treatable and he would have survived if he had received treatment when he first became symptomatic.
There were 53 bruises and 17 abrasions to the child (a total of 70) located on his head including ear, chest, stomach, back, bottom, groin and legs. Some bruising was consistent with fingertip pressure. Dr Sullivan opined that a significant number of injuries to the lower legs were consistent with those seen through normal childhood activities.

Strbak was the author of the identified injuries to Tyrell with the exclusion of those accepted by Dr Sullivan as potentially accidental.

In particular Tyrell had a scar to his ankle which was consistent with that left by applying the heated end of a cigarette lighter to his skin.

Strbak had caused this “smiley” injury to her son, Tyrell.

Police Investigation

Police attended the hospital and spoke to both Scown and Strbak.
Both Scown and Strbak agreed to attend police station and both subsequently participated interviews.

Whilst at the police station, Strbak told Scown that she was “going to get done for neglect”.

Arrest history

Scown was charged with the murder of Tyrell on 25 May 2009.

That charge was struck out at the conclusion of a committal hearing on 3 February 2010.

On 13 August 2015 both Scown and Strbak were charged with the murder and torture of Tyrell.

A committal hearing was conducted in the Brisbane Magistrates Court on 2 November 2016 with the ODPP withdrawing the charge of torture prior to the hearing.

The charge of murder was withdrawn prior to a no case submission listed for 4 November 2016 at the conclusion of the hearing. Both Scown and Strbak were committed on the now indicted charge of manslaughter.

Schedule of Tyrell’s injuries noted during pathologist examination

Injury	Size	Location
1.	2 fine punctate abrasions	no more than 0.2 cm in greatest dimension	Top of the head between two ears slightly left of midline with underlying scalp bruising
Subcutaneous red bruise (not visible externally)	3.5 x 2.5 cm	Right temple
Abrasion	1 x 1 cm	Right forehead, 4cm right of midline and 4 cm above the area between the eyes (glabella)
Faint red bruise	1 x 1.5 cm	Right forehead to the left of the previous abrasion (above), 2cm right of midline and 2.5cm above the area between the eyes with associated subcutaneous and subgaleal bruising beneath bruises extending above to upper frontal region of the scalp, to the right to underlie the abrasion noted on right forehead.
5. (4)	Faint red bruise	0.5 x 2 cm	Left of midline and 1 cm above the area between eyes with associated subcutaneous and subgaleal bruising beneath bruises extending above to upper frontal region of the scalp, to the right to underlie the abrasion noted on right forehead.)
6. 5.	Red bruise	1.5 x 1 cm	Left forehead, 1 cm left of midline and 4 cm above the area between the eyes
7. 6.	Red bruise	1.5 x 1 cm	Left forehead, 2 cm left of midline and 2 cm above the area in between the eyes
8. 7.	Triangular shaped red bruise	1 x 1 cm	Upper left cheek, between the eye and external ear
9. 8.	Linear slightly diagonal (lower end to the left) scratch abrasion	3cm long	Upper left cheek between triangular red bruise and eye
10. 9.	A red bruise	2 x 1 cm	Lower left cheek, between the outer angle of mouth and external ear
11. 10.	Healed linear wound	1 cm	Back of left external ear
12. 11.	Brown bruise	0.5 x 0.3 cm	Left chin
13. 12.	Purple bruise	2 x 0.5 cm	Outer rim (helix) of right external ear with associated local swelling
14. 13.	Faint abrasion	0.5 x 0.5 cm	On outer right cheek lateral to eye
15. 14.	Small abrasions	Around the nostrils of the nose
16. 15	Small abrasions	Scatters upper and lower lips
17. 16.	Subcutaneous red bruise	5 x 3 cm	Back of head (occipital region)
18. 17.	Brown red bruise	0.5 cm diameter	Right underside of chin (submental region) immediately below the jaw
19. 18.	6 faint fine linear parallel red bruises	1.5 to 3 cm long and 5.5 cm wide	Upper outer front of left chest and shoulder region (NB: weren’t visible during examination on 25 May, but apparent on 26 May.)
20. 19.	3 brown bruises	0.7, 0.5 and 0.3 cm (greatest dimension in descending order)	Vertically on the midline of the chest, lowest bruise immediately above the upper point of abdomen (epigastrium)
21. 20.	Brown bruise	0.5 cm diameter	Right lower chest, 7cm right of midline
22. 21.	Red bruise	1 x 1cm	Right lower chest, 5 cm right of midline
23. 22.	4 faint brown bruises	0.5 cm diameter	Left mid to lower chest, 3.5 to 8cm left of midline
24. 23.	Fading red bruise	1 x 1cm	Right of midline of upper abdomen
25. 24.	Circular red bruise	0.4 cm diameter	Upper abdomen, 2 cm right of midline
26. 25.	Faint greenish bruise with underlying red purple bruise 3 x 2 cm in the rectus muscle and visceral peritoneum	Left of the belly button (umbilicus)
27. 26.	Greenish brown bruise	1.5 x 1.5 cm	Left lower abdomen
28. 27.	Greenish brown bruise	1.5 x 1.5 cm	Left lower abdomen
29. 28	Diffuse red bruise (fading margins)	4.5 x 3.5 cm	Lower mid abdomen (suprapubic region)
30. 29.	Brown abrasion	0.5 x 0.5	Right lower abdomen/ groin
31. 30.	Diagonal red abrasion (lower end to right)	3 x 0.5 cm	Left upper back of chest
32. 31.	2 semi-circular bruises	2 x 2.5 cm	Mid upper back
33. 32.	Brown bruise	1.5 x 1 cm	Right upper back over the shoulder blade
34. 33.	Brown bruise	1 x 0.8 cm	Outer back of lower right chest
35. 34.	Brown bruise	1.5 x 1 cm	Left loin region
36. 35.	Fading brown bruise	0.5 cm diameter	Left loin region
37. 36.	3 fading brownish green bruises	0.5, 0.5 and 1 cm in greatest dimension	Left buttock
38. 37.	Fading brown bruise	0.5 x 0.3 cm	Back of right elbow
39. 38.	Subcutaneous red bruise	3 x 1 cm	Back of right elbow, distal to elbow
40. 39.	Red bruise	3.5 x 1 cm	Front of right forearm, distal to fold of elbow
41. 40.	Brown bruise	0.5 cm diameter	Distal back of thumb side (radial aspect) of right forearm
42. 41.	Red bruise	1.5 x 1 cm	Distal back of the little finger side (ulnar aspect) of right forearm, stippled in pattern following the corrugations of the skin
43. 42.	Red bruise	2.5 x 2 cm	Front of right wrist
44. 43.	Red bruise	2 x 1.5 cm	Front of palm of right hand
45. 44.	Red bruise	1.2 x 0.5 cm	Back of right hand and wrist
46. (44)	Small red abrasion	With red bruise on back of right hand and wrist
47. 45.	Irregular red bruise	2.5 x 2 cm	Back of right hand proximal to base of middle and ring fingers.
48. (45)	Small abrasion	With irregular red bruise on back of right hand proximal to base of middle and ring fingers.
49. 46.	Faint red bruise	0.3 cm	Back of right hand near the base of the little finger
50. 47.	Red bruise	0.7 x 0.8 cm	Mid-front of left upper arm
51. 48.	Red bruise	1 x 0.8 cm	Mid-front of left upper arm, distal to the previous bruise
52. 49.	Red bruise	0.7 x 0.8 cm	Mid-front of left upper arm
53. 50.	Faint red bruise	1.5 x 1 cm	Back of left hand, distal to the previous bruise
54. 51.	Grey brown bruise	1.5 x 1 cm	Back of left hand proximal to the ring finger
55. 52.	Two brown abrasions	0.3 cm and 0.5 cm	Region of rectum
56. 53.	Brown abrasion	0.5 cm diameter	Upper right thigh
57. 54.	Brown abrasion	1 x 1 cm	Inner back of mid right thigh
58. 55.	Indistinct brown bruise	1 x 1 cm	Inner back of mid right thigh
59. 56.	Red bruise	1.2 x 1 cm	Front of right knee
60. (56)	Small fading bruise	0.5 cm	With red bruise on front of right knee
61. 57.	A horizontal green bruise	2 x 0.7 cm	Inner front of right leg
62. 58.	Faint brown bruise	1 x 1.5 cm	On the back of right calf
63. 59.	Greenish bruise with overlying abrasion	1 x 1.8 cm	Front of the right leg
64. 60.	Greenish bruise	1.5 x 1 cm	On front of right leg
65. 61.	Brown irregular bruise	1.5 x 0.6 cm	Left upper thigh
66. 62.	Greenish bruise	2.5 x 1.5 cm	Outer left thigh, stippled following congregations of the skin
67. 63.	Near horizontal butterfly shaped brown bruise	3 x 0.8 cm	Outer front of lower left thigh above knee
68. 64.	Circular brown bruise	0.6 cm diameter	Outer upper front of left knee
69. 65.	Brownish red bruise	1.5 x 1.8 cm	Front of left knee
70. 66.	Fading brown bruise	1.5 x 0.8 cm	Inner front of left leg
71. 67.	Brown bruise	1.5 x 0.8 cm	Inner front of left leg
72. 68.	Rectangular shaped brown red bruise	1.8 x 2 cm	Inner front of left leg
73. (68)	Abrasions with dried scab	On the rectangular shaped brown red bruise on inner front of left leg
74. 69.	Brownish purple bruise, rabbit head shape	4 x 2 cm	Back of left calf
75. 70.	Vague greenish bruise	0.5 x 0.8 cm	Inner aspect of left leg
76. A	U shaped scar	Left ankle
77. B	Near transection of the small intestine (only 1 cm of the 4 cm circumference attached)	About 8cm from the antrum of the stomach
78. C	3 cm tear in mesentery of the small intestine	Near its attachment of the small intestine (lies directly above the rupture portion of the duodenum)
79. D	Soft tissue haemorrhage on front of vertebrae L2 and L3	On front of vertebrae of L2 and L3 (area underlying where the intestines are perforated)
80. E	Bruise in abdominal wall	Haemorrhage noted mainly in subcutaneous fat. There is associated mixed acute and chronic inflammatory infiltrate with presence of polymorphs, macrophages, lymphocytes and plasma cells. No hemosiderin pigment is noted.
81. F	Raised intracranial pressure with cerebral swelling	Brain

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