R v Szabo
[2020] ACTSC 175
•3 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Szabo |
Citation: | [2020] ACTSC 175 |
Hearing Dates: | 23 – 29 June 2020 |
DecisionDate: | 3 July 2020 |
Before: | Elkaim J |
Decision: | The accused is found not guilty on both counts in the indictment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Recklessly inflict grievous bodily harm – intentionally and unlawfully suffocate infant – circumstantial case – expert evidence – verdict |
Legislation Cited: | Crimes Act 1900 (ACT) ss 20, 27(3) |
Parties: | The Queen (Crown) Luke Szabo (Accused) |
Representation: | Counsel A Williamson (Crown) M Jones (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Numbers: | SCC 258 of 2019; SCC 323 of 2019 |
ELKAIM J:
On 3 June 2020, the accused elected for a judge alone trial under s 68B of the Supreme Court Act 1933 (ACT).
A fresh indictment containing two counts was handed up at the commencement of the hearing. The accused was arraigned. He pleaded not guilty to both counts.
The first charge is that on 1 June 2019 the accused recklessly inflicted grievous bodily harm on MH (SCCAN3821/2019), contrary to s 20 of the Crimes Act 1900 (ACT). The second charge, which is in the alternative, is that on the same date he choked, suffocated or strangled MH so as to render him unconscious (CC8195/2019), contrary to s 27(3)(a) of the Crimes Act.
On 1 June 2019 MH was 11 months of age. He experienced a choking episode which the Crown says was the result of the accused, in an act of frustration and in an endeavour to quieten the crying child, putting tissues into MH’s mouth. The grievous bodily harm was constituted by the effects of the accused’s actions. The Crown, in an email to the accused’s solicitors, put the allegation in this way:
We say the GBH suffered is the constellation of harm culminating in a medical episode causing respiratory difficulty and hypoxic injury and unconsciousness arising from a foreign object obstructing the infant’s airway.
The Crown, for purposes of the second count, identified the criminal act as the suffocation of MH.
Following the opening made by the Crown, I had the benefit of a short opening on behalf of the accused. As a result of what I was told it was quickly apparent that the primary issue in the trial was whether or not it was the accused who had inserted the tissues into MH’s mouth or whether the child had done so himself. The secondary issue was whether or not the accused had been reckless in his actions. There was no dispute MH had suffered grievous bodily harm.
Before going further I think it important to set out a number of directions which I am obliged to give to myself.
The Crown must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.
The Crown does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.
The facts that I find must be based on the evidence; that is, the evidence given by the witnesses and that are contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.
In respect of witnesses who gave evidence remotely, or had a support person present, I must not draw any inference against the accused for that reason or give their evidence any greater or lesser weight.
I must also remind myself of the principles involved with deciding a case based on circumstantial evidence.
Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did.
In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is, for that reason, weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality.
Further, in a circumstantial case, no individual fact can prove the guilt of the accused. Where the Crown’s case depends either wholly or in part on circumstantial evidence, I must reason in a staged approach.
The Crown asked me, first, to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused.
I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown has asked me to find, at least for Count 1, based upon the basic facts, is that the accused recklessly inflicted grievous bodily harm on MH.
A case based on circumstantial evidence may be just as convincing and reliable as a case based on direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown, considered as a whole. It will also depend upon on whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.
It is important that I approach the circumstantial case by considering and weighing, as a whole, all of the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the guilt of the accused.
If I find a conclusion is a reasonable conclusion to draw based upon a combination of the established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails, because I would not be satisfied of the accused’s guilt beyond reasonable doubt.
I understand that drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.
The elements of the first count are:
(a)The accused engaged in conduct;
(b)The accused intended to engage in the conduct;
(c)The conduct resulted in harm being inflicted on MH;
(d)That harm amounted to grievous bodily harm; and
(e)The accused was reckless as to whether the conduct would inflict grievous bodily harm on MH.
The elements of the alternative count are:
(a)The accused suffocated MH;
(b)The accused intended to suffocate MH;
(c)That conduct was unlawful; and
(d)MH was rendered unconscious as a result of the conduct.
I do not intend to set out all of the evidence given by each witness; that can be found in the transcript. I will however highlight, in a narrative fashion, what I consider to be the relevant evidence necessary to decide the issues in the case.
The evidence
MH’s mother is LH. Besides MH she has 2 other children, KH and AH. These 2 children were aged 10 and 4 respectively at the time of the alleged offence. LH had separated from the father of her 3 children about a year earlier.
LH met the accused through an internet dating site (‘PlentyofFish’) in December 2018. A relationship developed and became intimate in February or March 2019. The accused has two children of his own, LT and IT, who were aged seven and three at the relevant time.
As the relationship developed the accused and LH spent more time together so that by May 2019 the accused was frequently at LH’s home. The accused however had been unwell shortly before 1 June 2019, so he had not seen LH for about two weeks.
As at 1 June 2019 LH was working at a nearby tavern, doing an evening shift commencing at 6:30pm. On the Friday evening (31 May 2019) LH had slept at her father’s house so that he could babysit her children when she went to work. She arranged for the accused to babysit on the following evening.
On 1 June 2019 LH spent time with her children and their father. In the afternoon she returned to her own father’s residence where she had a rest. Sometime in the afternoon she used her telephone to film MH playing with her father. The film became Exhibit F. It shows MH sitting on the floor playing with his grandfather and, in particular, taking food out of a bowl and, with a measure of inaccurate targeting, putting the food into his mouth.
MH at this time was an apparently happy child; he was crawling and able to walk holding an adult’s finger or using furniture as an aid. He was loud when he cried and it was his custom to cry out when he awoke from a sleep. At his home his cot was located in the main bedroom, at the foot of the bed. This arrangement is well depicted in photographs 34 and 35 of Exhibit D.
MH was able to reach through the slats on his cot and would have been able to pick up anything lying at the foot of the bed. There was no evidence to suggest that he was able to get out of the cot on his own.
MH frequently put things that he came across on the floor into his mouth. He was nicknamed the Cookie Monster because he would “shove” things into his mouth.
From time to time MH would take hold of tissues and tear them apart either using his hands or his mouth. LH’s custom was to have only one box of tissues opened in the house. It was placed as depicted in photograph 7 of Exhibit D. Despite a good deal of probing in cross-examination LH would not concede that tissues were left randomly about the house. Attempts to obtain a concession that MH might have had access to tissues left about inadvertently were unsuccessful.
Ultimately, LH said that she could not say with certainty there were no tissues within reach of MH when she left for work but, she continued, it was very unlikely. She said that he could only reach the bed and there were no tissues on the bed.
She also said that the two black items of clothing seen in photograph 44 of Exhibit D did not have pockets.
LH accepted that she might take tissues out with her but generally did not. She would rely on tissues at the places she visited or otherwise use toilet paper.
In the weeks before the alleged offence LH and her children had suffered from colds or the flu. Amongst other symptoms, they had runny noses. On 20 May 2019 LH took MH to the Winnunga Medical Centre and then, on the following day, to hospital. On examination the diagnosis was that MH had the flu or a cold. He had a cough and a runny nose.
LH recalled that about a week before 1 June 2019 KH had tripped over MH causing him to call out in apparent pain. She agreed that, at the Medical Centre, she had told the doctor that MH appeared to not be weight-bearing, although he was crawling. She agreed that she would pick up his legs to change his nappy, but she could not recall a time when he cried out when his legs were lifted.
At the hospital a name band was put on MH’s leg. It later swelled up which she was told was due to fluid retention.
Returning to 1 June 2019 LH sent the accused a text at around 5:03pm to tell him that she was leaving her father’s house and on the way to her own residence. She arrived home to find the accused and his two children waiting for her. She unpacked her motor vehicle. MH had fallen asleep on the journey home and he was taken out of the vehicle and placed in his cot, apparently still asleep, by the accused.
LH said that when she arrived home the accused appeared irritated, which was not usual. She thought he was in this state because she had been running late and he had been waiting with his children in his motor car. She deduced his irritability from him being “short with me”. KH referred to the accused as being “grumpy”, which she also put down to him waiting in the car and also due to a painful back, and perhaps because his children “were being really naughty”. I would not however regard KH’s evidence as describing a person so aggravated or irritated that he might take extreme measures to silence a crying child.
LH was expected at work at 6:30pm so she set about getting changed into a black outfit and ordering dinner for the family. She also washed some bottles and prepared one bottle of formula milk for MH. She could not recall if she or the accused gave the bottle to the baby. KH's recollection was that the accused had given MH his bottle. LH did observe that when she left not much had been consumed from the bottle. This is consistent with MH having mostly been asleep after being brought in from the motor car.
When LH was ready to leave she checked on MH. He seemed well and she departed at about 6:25pm. Evidence from KH indicated that MH may have woken up briefly and began crying before LH left, but she “settled” him by patting him on his backside and he went back to sleep.
According to KH, sometime after LH left the home MH started crying again. KH described it as a:
half whinge, half cry … almost like a cry, but it, like, sounds like both, but it’s more leaning towards a cry.
She said it was “not very loud” and rated it as a 3 or 4 on a scale of 1 to 10, the former being, as described by the officer conducting the record of interview, “a really soft whisper” and the latter being “as loud as you could yell”. Her evidence was that the accused went into the bedroom to settle MH. He was successful in doing so. The accused then came out of the bedroom and asked KH and LT to finish setting the table for dinner. MH began crying again and the accused went back into the bedroom. A short time later the accused screamed out to KH that MH was choking.
Notably, as seen in Questions 125 and 138 of KH’s police record of interview, there did not appear to have been a prolonged period of MH crying or screaming either before or after the accused entered the main bedroom. There is no other evidence to suggest the sort of behaviour on MH’s part that might have annoyed the accused to the extent that he inserted the tissues into MH’s mouth in order to keep him quiet. Somewhat to the contrary the accused said to KH that he would bring MH out for dinner.
Later that evening Mr Thompson, who lived next door to LH, heard KH calling for help and saying that her brother had stopped breathing. He immediately went next door to find MH on the floor, in only a nappy and with his eyes bulging and his face discoloured. The accused was attempting mouth-to-mouth resuscitation of MH which Mr Thompson thought was being carried out “enthusiastically”. He asked his wife to call 000 but she was obviously distressed, so he took over the telephone call.
Once 000 was on the line, instructions were given to the accused about performing chest compressions (Exhibit T). An ambulance soon arrived, and the paramedics took over. Later in the evening Mr Thompson spoke to the accused. The accused told him that he had heard MH choking and went into the bedroom to help him. He had been in the shower and heard the baby choking when he came out. Mr Thompson agreed that he had not told the police, when interviewed some days later, about the accused mentioning having been in the shower. He said he must have forgotten that detail.
It was put to Mr Thompson, in cross-examination, that he must have been mistaken about the shower comment. I can see no reason to doubt his evidence. Being in the shower may not be detrimental to the accused. Taking advantage of MH being asleep and the other children being present, might have been seen as an appropriate time to have a shower. The assertion is however contrary to the record of conversation with the accused and the evidence from KH. I see no relevance in the issue.
I also note Mr Thompson’s evidence that when he entered the house the accused was not wearing a shirt.
Two ambulances arrived in response to the emergency. The first was crewed by Ms Amy Spiteri and Mr Aidan Chappell. Ms Spiteri was an intern who had been working as an ambulance officer for a little over a year. Mr Chappell had about seven years’ experience.
Ms Spiteri noticed the accused performing CPR through a window before she entered the house. She described his compressions as “vigorous”, in particular for a child. She told him to stop and took over the care of MH. Her initial assessment identified that he was breathing and had a pulse. He was not conscious. She assessed him according to the Glasgow Coma Scale (GCS) and determined his overall score to be ‘three’, which was the “lowest based on his presentation”. The score is equivalent to an appearance of death.
Ms Spiteri noticed swelling, bruising and a haematoma on MH’s face. His lips were discoloured. The haematoma, a lump, was on his forehead. Blood was also present. She moved MH to gain better access to him and removed his clothing and nappy. She inspected his airway and found it bloodied with secretions. There were fragments of wet tissue. She applied suction through a Y suction catheter (Exhibit A). She also applied a device called an OPA (Exhibit B) which holds the patient’s tongue down. She said that no force was required to install this device.
A BVM (a bag valve mask, Exhibit C) was then applied in order to facilitate ventilation. MH remained with a GCS score of three but Ms Spiteri seemed to have achieved effective ventilation. She said none of her actions caused him any injury.
Both Ms Spiteri and Mr Chappell described the BVM as fitting over a patient’s mouth and nose. It needed to be held firmly in place in order to ensure the optimum intake of oxygen.
Ms Spiteri said she noticed vomit and a bloody ball of tissue near MH. The ball of tissue can be seen in photographs 25, 26 and 27 of Exhibit D. At some stage Mr Chappell looked into MH’s mouth and returned to the ambulance to obtain a laryngoscope (Exhibit E). This is a device which allows the operator to look down a patient’s airway.
Mr Chappell used the device and observed small bits of “pinky” material in MH’s mouth. He did not see any foreign material in the child’s throat.
Mr Chappell said he did not cause any injury to the baby. When the other ambulance arrived, staffed by a Mr Hamill and a Ms Dabsen, there was a handover. Mr Hamill attempted a cannulation but was not successful. Mr Chappell also attempted a cannulation in the ambulance to the hospital. This was also not successful.
While at the scene Mr Chappell asked the accused for a history of what had occurred. He was told that the baby “had woken up like this”. Perhaps surprisingly the accused said he did not know MH’s name. Less surprisingly he said he did not know his date of birth.
Returning to Mr Chappell’s arrival at the scene, he said he noticed a small haematoma on MH’s forehead, dry blood in his nostrils and bruising evident on his top lip. He estimated the size of the haematoma as having the approximate diameter of a 10 cent coin.
MH was transported to Canberra Hospital, where, later in the evening, Ms Spiteri prepared the Electronic Patient Care Record (Exhibit 1) which was checked by Mr Chappell.
While LH was at work she received a telephone call from her brother telling her that MH had choked and she should return home. She soon arrived at her house to find the two ambulances present and MH being carried up the driveway. LH and her brother went to the hospital in the second ambulance. LH did not wish the accused to accompany her to the hospital.
At the hospital LH spoke to Dr Sansum and told her that the accused had told her that MH had made a funny noise before choking. The accused had told her this before she left the house.
LH spoke to the accused who told her that MH had been choking on tissues, there was blood coming out of his nose and he had not known what to do.
LH was asked about her daughter speaking to her in late May of this year. Her daughter had asked to speak to the police officers which LH arranged. When the police officers visited LH was present for a short period during which KH was told about the upcoming court proceedings.
I saw a short record of interview conducted with AH. He was then four years of age and, during the interview, acted in a manner consistent with his age. He did seem to understand the questions about the events of 1 June 2019 and gave apparently sensible answers. The Crown emphasised to me that his evidence was not relied upon in support of its case but had been put before the Court in order to meet the Crown’s obligation to lead all relevant evidence. I do not rely upon AH’s evidence in support of either the Crown or the defence cases.
I take essentially the same attitude to the taped record of interview with LT. It came into evidence, to some degree as a convenient method through s 48(1)(c) of the Evidence Act 2011 (ACT), but without objection. LT clearly understood the questions she was being asked but, at the same time, there were equally clear variations in recollection, for example about where she was located when MH was choking.
One matter of possible significance is that her answer to Question 57 might suggest her father was not in a bad mood, although I would not accept that without more. As with KH however, she did not say anything in the interview which would suggest an extended period of crying by MH before her father went into the bedroom.
In respect of the evidence of KH no issue was taken about her competency to give evidence. She also had participated in a record of interview which took place on 2 June 2019. She spoke in a clear and confident manner and, subject to overall reservations about the reliability of a child of 10 years of age (as she then was), I thought she was doing her best to be honest in what she said to the police. I had the same impression of her evidence before me.
She was cross-examined to suggest that her estimates of time in the interview were vague and perhaps unreliable. I had a different impression. For example, she said that the ambulance had taken between two and four minutes to arrive, which is a fairly accurate estimate. According to the Electronic Patient Card Record (Exhibit 1) the ambulance was requested at 6:49pm and arrived at 6:52pm.
At Question 359, KH gave evidence about bruises “all over” MH’s face. I think it clear that these particular bruises existed some time before 1 June 2019 and were unrelated to the alleged offence. No bruising can be seen on MH in the video taken earlier in the day (Exhibit F). This was confirmed by the accused in his recorded conversation at Question 427.
The recorded conversation was taken by Senior Constable Clark shortly before 10:00pm on the night of the incident. Clearly the events would then have been fresh in the accused’s mind. As a general statement I think it can be said that in many respects his version is consistent with that given by KH. One difference is that according to KH the accused made two visits to the bedroom before coming out with MH. The accused said that he brought MH out the first time he heard him making a noise.
The accused’s version was stated in this way:
Um, I was sitting there organising dinner with the kids. Um, so there was four kids, my two and [LH’s] two. Um, and I heard a bit of a funny noise, little screechy sort of noise come out of the main bedroom, which is where [MH] sleeps. Um, and I walked in, and I could notice that he was like, I guess, choking, Um, and when I picked him up to look into his – into his mouth, I could see, like, a white sort of tissue-y sort of thing that was in his mouth. Um, I then put him on the bed and I tried to get rid of – like, remove the tissue from his mouth. Um, but I just couldn’t – couldn’t remove it, just couldn’t get, I guess, behind it enough to pull it out.
…
So I – I – I picked him up and I walked out to the lounge room, and I asked, um [KH] um to try help me, because she has smaller hands, I thought maybe she’d be able to get in behind it better. Um, and very quickly, um, I realised that she couldn’t. Um, I asked her to get me some tweezers. Um, she quickly ran back with some tweezers, and I couldn’t – I couldn’t get it wit the tweezers, because he’d bitten on my hand, like, on my finger, and I couldn’t pinch the tweezers enough to pull it out. Um, so I asked [KH] to call an ambulance. Um, she couldn’t find my phone and I couldn’t find my phone. Um, so I told her to run next door and get the next-door neighbour to call the ambulance. Um, in – in that process of her running next door to get, um, the neighbours to call the ambulance, I managed to get the tissue out of his mouth.
…
And he – he vomited and he spewed blood, and – yeah. Everything. And then I started to do CPR, best to my knowledge.
It is also evident from the conversation that the accused became distressed during the interview. His state after the events was also referred to by First Constable Frizzell, who was told by LH’s father, as “inconsolable”.
Other notable matters arising from the recorded conversation are these:
(a)At Question 223 the accused begins to describe his actions in administering CPR.
(b)The accused had not visited LH for nearly two weeks prior to 1 June 2019. There is a point arising from this evidence which I will return to below.
(c)The accused said there were no tissues in the bedroom.
(d)He said that the relationship with LH seemed to have tapered off since Easter. However, she obviously trusted him enough to request him to babysit.
(e)The accused did not know how MH had obtained the tissue. One might have expected that if the accused had inserted it into MH’s mouth the accused might have proffered a source of the tissues to divert attention from himself.
I could not see the accused during the recorded conversation, and he was not cross‑examined. He was of course not obliged to give evidence. Nevertheless, the absence of cross-examination must be taken into account in assessing the weight to be given to his version as stated in the recorded conversation.
Senior Constable Dinham, an experienced detective, conducted a fairly cursory search of the premises. He left the detailed search to a forensic team that was organised to attend. No member of the forensic team gave evidence. Nevertheless, Senior Constable Dinham did inspect the room and could find no tissues. Because no member of the forensic team was being called to give evidence, and because neither party apparently thought it fit to examine the issue, I asked the officer whether he had seen, in the main bedroom, any reason which might have been consistent with the use of tissues in the bed. He said he had not.
I directed the officer to photograph 30 of Exhibit D. After being particularly directed to the condom in the photograph he seemed to agree that tissues in the bed might be consistent with bodily fluids associated with the condom. In re-examination by the Crown the officer, quite properly and obviously, said he could not estimate how long the condom had been in the bag.
Notwithstanding the officer’s correct answer, I would find it quite extraordinary for that condom to have worked its way to the top of the bag if it had last been used two weeks previously when the accused had been at the house. Sexual intercourse had clearly not taken place on 1 June 2019. I also find it extraordinary that the condom would have been allowed to sit in the bag for a long period of time in the presence of children about the house.
On the basis of the evidence before me, and especially because LH was never cross‑examined about the condom, I think it would be inappropriate for me to draw any specific conclusions arising from its presence.
First Constable Frizzell is the informant in the case. She also led the police record of interview with KH. She confirmed that KH had never said to her, either in the interview or otherwise, that MH had been “crying the house down”.
I will deal with the expert evidence in the case separately, but I note that First Constable Frizzell gave important evidence about the information, or lack of it, provided to
Dr Sansum, the Crown’s expert. Although the officer was not familiar with the terms of the expert witness code of conduct she was aware of its existence. She said that she had spoken to Dr Sansum on the telephone on 4 June 2019 and during a meeting two days later. She confirmed that Dr Sansum had never been given a transcript of the accused’s recorded conversation nor had she been given her any detail of his version. In addition, she did not relay to Dr Sansum the description of the accused’s actions given by KH nor did she tell the doctor about the statements obtained from Mr and Mrs Thompson, in particular their perception of the vigorous application of CPR by the accused.
Dr Sansum had also not been told that the accused had described the noise made by MH as a screeching sound. As a general statement, an expert opinion is heavily dependent on the facts and assumptions upon which it is based. As will be seen below, Dr Sansum was never given a full and relevant history.
First Constable Frizzell confirmed that the accused had told her that he had been suffering nightmares and flashbacks and that he was apparently shocked when being arrested.
Expert evidence
Turning now to the expert evidence. In dealing with expert evidence it is necessary for me to take the following into account.
An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may generally speak only to facts, that is, what they saw or heard, and are not permitted to express their opinions.
As mentioned above, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge.
Expert evidence is admitted to provide me with information and an opinion on a particular topic which is within the witness’s expertise, but which is likely to be outside the experience and knowledge of the average lay person.
The expert evidence is before me as part of all the evidence to assist me in determining whether the accused placed the tissues in MH’s mouth.
I must bear in mind that if, having given the matter careful consideration, I do not accept the evidence of either Dr Sansum or Professor Duflou, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.
Dr Sansum is the Clinical Director of the Child at Risk Health Unit (CARHU) in the Canberra Hospital. It was in this capacity that she first examined MH and it is clear from both her reports and her oral evidence that her examination was as much concerned with this role as with an independent assessment of MH’s injuries. Dr Sansum also has extensive experience in forensic medicine, in particular with a focus on children. This is evident from her curriculum vitae.
Professor Duflou is a consulting forensic pathologist. His qualifications are widespread, stretching from a Bachelor of Medicine to a Diploma in Aviation Medicine. Clearly his main area of specialty is forensic pathology.
Both experts possess a good deal of learning in their respective fields. It might be said that Dr Sansum is concerned with the preservation of the living while Professor Duflou is more attuned to the explanation of the dead. Their fields in this respect are very different but as far as an explanation of injuries is concerned, although they may approach the injury from a different viewpoint, I think they were both well-qualified to comment on the injuries suffered by MH.
The one area where I thought their respective expertise relied more on logic and common sense than their precise training was in whether or not MH could have ingested the tissues. I would have thought the appropriate expert in this area would be a paediatric Ear, Nose and Throat specialist. Neither party thought it necessary to provide a report from such a specialist.
Dr Sansum thought it was “incredibly highly improbable that [MH] inhaled or put tissues in his mouth to the extent that they became so sodden and impacted”. She thought that the child’s gag reflex would have caused him to expel tissues in a wad of that size. If the tissues were dry she thought the child would find it unpleasant and not continue to put it in his mouth “to the point that it’s that large and impacted”.
The evidence that MH would put things in his mouth was beyond dispute. As mentioned above, these habits had led to him being nicknamed the Cookie Monster. As to his possible revulsion of dry tissues it is notable that when LH left the house the bottle in MH’s bed was almost full. He must, however, have consumed the rest of the liquid after she left because the photographs of the bottle taken by the police (Exhibit D photograph 50) depict an empty bottle. It is completely unknown whether the milk was the source of the ‘soddenness’ but it is a possibility which cannot be excluded.
Professor Duflou on the other hand thought it entirely possible for an infant to ingest the tissues. It may well have been unlikely but nevertheless it was possible.
The issue where the experts were most at odds, and it is an issue falling well within the expertise of both doctors, was the origin of the bruising to MH’s face, especially his forehead. Professor Duflou acknowledged that the literature he had examined did not specifically refer to any instances of injury being caused to a child above the eye line during the administration of CPR. Nevertheless, he demonstrated how an adult’s hands might have caused the bruising to the forehead, depending on their placement, when attempting mouth-to-mouth resuscitation. The demonstration he gave seemed to me to provide a logical explanation for the bruising to MH’s forehead. At [36] of his report Professor Duflou said:
I conclude that the superficial facial injuries, which are in the form of bruising, swelling and abrasion may be a consequence of inexpert and frantic resuscitation attempts by [the accused]. I do not exclude the possibility of the injuries being sustained prior to the attempted resuscitation, but am of the opinion all can be explained on the basis of the resuscitation.
In addition Professor Duflou pointed out that there is a transient period where a clotting disorder, leading to “easy bruising”, is a product of a period of hypoxia, as suffered by MH. The accused suggested that the easy bruising might have applied to injuries sustained before the transient period described by Professor Duflou. I did not understand that to be the case from the evidence. Rather I thought the easy bruising was referable to injury suffered during the transient period.
It is immediately apparent from the report of Professor Duflou that he has been provided with a good deal of relevant information that Dr Sansum did not receive. I am particularly referring to the transcripts of the conversations with the accused and with Mr Thompson.
The accused submitted that this was a point in favour of accepting the views of Professor Duflou over those of Dr Sansum. An integral part of the strength of an expert’s report is that it is based on a complete picture of the facts in a particular case. However, Dr Sansum was cross-examined and not directed to those facts which it might have been suggested she had omitted in forming her opinion. I took this point up with the accused. His counsel submitted that it was not “up to the accused to provide a huge wad of material to an expert…”. That may be so but if it is not done then criticism of the expert for not taking the material into account cannot be sustained. Further, it would not have been necessary to provide any more than a summary of the accused’s version to the doctor.
The experts broadly agreed on the possible origins of the pneumomediastinum (essentially air in the space between the lungs). It could not be excluded that the condition was a result of compression by the accused on MH’s chest.
The buckle fractures are ostensibly an indication of an assault by the accused. At first sight it seems most unusual that these fractures were not a source of pain which would have been noticed had they been suffered prior to 1 June 2019. Certainly, the footage recorded earlier in the day (Exhibit F) does not indicate a child in any distress. Dr Sansum said in her report of 1 July 2019 that:
The fractures would have been painful, causing swelling and decreased movement in these limbs. These fractures appear to have been un-noticed by his carers.
When I asked the doctor about this passage she said it referred to the buckle fractures and other matters which were not relevant to the case. The above logical statement by the doctor must therefore be put to one side in any assessment of whether the buckle fractures were caused by the accused.
If, therefore, the buckle fractures could have occurred prior to 1 June 2019, and if there is no other evidence to assist with dating their occurrence, then I cannot use the presence of the fractures in aid of the Crown’s case.
Two matters of significance emerge from my assessment of the expert evidence; firstly there was a possibility, perhaps unlikely, that MH could have put the tissues into his mouth, and secondly, the bruising to MH’s face, in particular his forehead, does not necessarily suggest any action by the accused outside of the bounds of a vigorous attempt at resuscitation.
Consideration
The Crown provided helpful written submissions at the conclusion of the evidence. I agree with its characterisation of the case as circumstantial and, in turn, dependant on the establishment of the various strands making up the circumstantial case. I also agree that while the failure to establish a particular strand might weaken the Crown case, it does not necessarily defeat it. Where I differ from the Crown is whether or not any of its strands have been established at all.
The Crown identified four strands in its case. These are:
(a)The tissues were forced into the infant’s mouth or throat.
(b)The accused assaulted the infant at or about the same time that he forced the tissue down the infant’s throat.
(c)The accused was in an irritable mood at the time of the incident.
(d)There were no tissues accessible for the infant to self-ingest.
I will deal with each of the above strands in turn. I have already made a number of comments concerning the evidence about the strands.
Neither the opening nor the closing addresses of the respective parties were evidence. Nevertheless, I note that in opening, the Crown said:
I expect that your Honour will hear that at one point [KH] went - or attempted to enter the room but the accused wouldn't allow her in and shut the door in her face.
There was no such evidence.
The tissues were forced into the infant’s mouth or throat
I have dealt with this strand in reviewing the evidence of the experts. I am not satisfied that the evidence leads to a conclusion that the possibility that MH put the tissues into his own mouth must be excluded. In my view it is a reasonable possibility.
The accused assaulted the infant at or about the same time that he forced the tissue down the infant’s throat
This has also been dealt with above. The injuries most relevant here are the haematoma and bruising to the forehead of the infant. I have decided that these injuries are consistent with the application of the accused’s hands to MH’s face in the manner described by Professor Duflou. In addition, the buckle fractures cannot establish any conclusion, nor assist in the establishment of any other injuries occurring immediately before the accused brought MH out of the bedroom.
The accused was in an irritable mood at the time of the incident
The Crown said in opening the case:
Whilst it is unnecessary for the Crown to prove motive, it's not an element of the offence, the Crown case is nonetheless that the accused committed these acts in anger and frustration at the infant's crying whilst he was in irritable mood.
The source of the suggestion of “anger and frustration” is not in the evidence. As noted above, the evidence about the accused’s irritability when he entered the bedroom is uncertain, at best. He does seem to have been irritable when LH and her children were late arriving home.
KH gave some evidence about grumpiness on the accused’s part through the evening. She referred to him having a “really sore back” and being in a “bit of a grumpy mood”. She also referred to him as telling her mother that he had slept for three days, giving him the sore back, and also that the previous evening he had had difficulty sleeping.
KH did not say that the grumpiness continued after her mother left the home and her perception of his being grumpy seems to have been based on him not having his normally smiling face. To elevate the descriptions given by KH to a person acting in anger and frustration is in my view more than a single step too far.
There is absolutely no evidence of prolonged screaming or overly loud crying to an extent that might have led to frustration and extreme action on the accused’s part. LH left the house at about 6:25pm. The ambulance was called at 6:49pm. The gap is about 24 minutes, during which the other events took place before MH woke up. Where then is any period of prolonged crying or screaming? In addition, and more importantly, there is simply no evidence of very loud crying or screaming. Yet the Crown suggests that some behaviour on MH’s part led the accused to “stuff” a wad of tissues down the baby’s throat.
There were no tissues accessible for the infant to self-ingest
On initial consideration this is a very strong point in favour of the Crown’s case. However, it does not bear scrutiny.
The Crown submitted that the only source of tissues was in the lounge. There is a box of tissues there and some tissues in the cupholders of the lounge suite. The Crown pointed out that no tissues were found in the cot or in the bed. Further, the garments left hanging on the cot did not have pockets and, in any event, LH did not put tissues in her pockets. I pointed out that it was the habit of many people who did not have pockets to place tissues up their sleeve. Unfortunately, the accused did not suggest this possibility to LH so that I think I am bound to ignore it. The same, as I have already mentioned above, relates to possible bodily fluids having been the source of a use of tissues in the bed.
The accused submitted that his answer in the record of conversation that there were no tissues in the bedroom was a significant point in his favour. If he had, earlier in the evening, inserted the tissues into MH’s mouth it would have been in his interest to tell the police that tissues were sometimes located in the bedroom.
The Crown, on the other hand, relied on the accused’s answer to corroborate its assertion that there were no tissues in the bedroom. Both positions have their merits, although I do note that there would have been little point in the accused giving a different answer in the knowledge that there were no tissues in the bedroom.
Ultimately, I do not think it matters much whether the accused, or even LH, were aware specifically of any tissues in the bedroom. The tissues could have been left in the bed or the cot inadvertently. In particular, as far as the bed is concerned, their original use may have occurred some time previously. There was no evidence as to when the sheets on the bed were changed. The state of the garbage bin, for example, in the separate toilet, where the bin is overflowing with toilet rolls (as can be seen in Exhibit 2), would suggest that regular housework was not a priority.
Dr Sansum correctly described the house as being in “disarray” and noted, with appropriate disapproval, the presence of medication within reach of children. I do not accept that a deliberate ‘policy’, let alone a practice, was in place to ensure tissues were not kept in the bedroom or even kept away from the cot. The overall evidence, and especially, the picture painted by the photographs in Exhibit D does not permit such a conclusion.
It is also worth noting that if MH’s bottle had been largely consumed by MH after his mother departed then he must have been awake for a period of time during which he might have explored his surroundings.
It is impossible to exclude as a reasonable possibility that tissues were within the reach of MH.
Conclusion
The Crown has not satisfied me that it has established the strands necessary to prove its circumstantial case. This conclusion necessarily includes a finding that the Crown has not established that the accused assaulted, and in particular, suffocated MH. The prosecution of both counts must therefore fail.
The Crown, in its written (but not oral) submissions, referred to the statutory alternative charge of causing grievous bodily harm. This alternative is not available on my findings.
Although not necessary, I would like to comment briefly on two matters which would have arisen had the above strains been established:
(a)The accused conceded that MH had suffered grievous bodily harm. However, the accused said that his actions, had I found them to be established, were not reckless as required by the relevant section. I disagree. In my view a more reckless action than stuffing tissues down a child’s throat in order to quieten him or her down is hard to imagine.
(b)In respect of the alternative charge the accused submitted that the necessary intention was both an intention to suffocate and an intention to render the child unconscious. But this is not what s 27(3)(a) of the Crimes Act requires. This section states:
…
(3)A person who intentionally and unlawfully––
(a)chokes, suffocates or strangles another person so as to render that person insensible or unconscious…
is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
A plain reading of the section reveals that the choking, suffocation or strangling must be intentional, and it must have a particular effect. It is a very strained reading of the section indeed to suggest that the ‘rendering’ must also be intentional.
Order
The order of the Court is the accused is found not guilty on both counts in the indictment.
| I certify that the preceding one-hundred-and-twenty-nine [129] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 3 July 2020 |
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