R v T & H
[2016] SADC 32
•7 April 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T & H
Criminal Trial by Judge Alone
[2016] SADC 32
Reasons for the Verdicts of His Honour Judge Costello
7 April 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
T and her partner H were charged with Criminal Neglect of T's 2 year-old daughter, TW - Criminal Neglect related to a series of assaults by T on TW resulting in bruising and abrasions to her face and body, fractures to various bones and other serious internal injuries - each accused had duty of care for TW - each accused ought to have been aware of an appreciable risk that serious harm would be caused to TW by the assaults - each accused failed to take steps which could reasonably have been expected to have been taken to protect TW from harm - failure of each accused to take such steps so serious that a criminal penalty is warranted.
VERDICTS: T guilty
H guilty
Juries Act 1927 s 7; Criminal Law Consolidation Act 1935 ss 14, 21, 25, 29; Evidence Act 1929 s 34P, referred to.
H Ltd v J & Anor [2010] SASC 176; R v C, CA [2013] SASCFC 137; R v Joyce [2014] SADC 125; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Martin v Osborne (1936) 55 CLR 367; Knight v The Queen (1992) 175 CLR 495; R v Micallef [2002] NSWCCA 480; Shepherd v The Queen (1990) 170 CLR 573; R v Hillier (2007) 228 CLR 618; R v Chamberlain (No 2) (1984) 153 CLR 521; R v N-T and C [2013] SASC 200; R v Staker [2011] SASCFC 87; The Honourable M J Atkinson, Second Reading Speech, 12 October 2004 p 333, considered.
R v T & H
[2016] SADC 32
This is a trial by judge alone. The accused, T and H, are jointly charged with the following offences:
First Count
Statement of Offence
Criminal Neglect. (Section 14(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[T] and [H] between the 26th day of May 2013 and the 31st day of May 2013 at Smithfield, being persons who at the time had a duty of care to [TW], who suffered serious harm as the result of an unlawful act, namely an assault or assaults, and whilst they were aware or ought to have been aware that there was an appreciable risk that serious harm would be caused to [TW] by the unlawful act, failed to take steps that they could reasonably be expected to have taken in the circumstances to protect [TW] from harm.
Second Count
Statement of Offence
Aggravated Creating Risk of Serious Harm. (Section 29(2) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[T] and [H] between the 30th day of May 2013 and the 31st day of May 2013 at Smithfield, made an omission, namely failing to obtain proper medical attention for [TW], knowing that the omission was likely to cause serious harm to [TW] and intending to cause such harm, or being recklessly indifferent as to whether such harm was caused.
It is further alleged that [H] and [T] committed the offence knowing that [TW] was a child of whom they were the parent or guardian.
It is further alleged that [H] and [T] committed the offence knowing that [TW] was a child under the age of 12 years.
Despite carrying a higher maximum penalty, the prosecution have charged count 2 on the Information in the alternative. The Crown elected to proceed in this way because in its submission count 1 was factually broader and involved more serious criminality.[1]
[1] See T4.
Both accused pleaded not guilty to the charges, and each elected to be tried by a judge sitting without a jury pursuant to the provisions of s 7(1) of the Juries Act 1927. The accused, T was represented by Mr Healy at trial, and the accused, H was represented by Mr Mead. Mr Edge and Ms Lakatos appeared for the Director of Public Prosecutions.
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a judge sitting without a jury, that the Court should detail every obvious and basic direction which might be given to a jury.
I do, nevertheless, record that I have reminded myself of the following:
1 An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2 The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3 The accused does not carry any onus of proof and to the extent that he or she might put forward a defence, he or she does not have to prove it.
4 It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him or her not guilty of that charge.
5 Each of the counts on the Information concerns a separate offence. I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6 The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he or she also should be found guilty of the other offence charged. Depending on my findings on the evidence, I may find the accused not guilty of both offences charged or guilty on count 1 or not guilty on count 1 and guilty on count 2.[2]
7 I further direct myself that each count charges a separate and distinct offence against each accused. I must consider the evidence in relation to each accused separately, and must be careful to ensure that, when considering the evidence against each accused, I do not bring into consideration any evidence that is not relevant to that particular accused.
8 I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, each accused elected not to give evidence and remained silent. The accused were not bound to give evidence and each had the right to decline to give evidence. Because that is their legal right, I am not permitted to draw any inference adverse to them or the case he or she put forward from the exercise of that right. There may be many reasons why each accused did not give evidence and I should not speculate on those reasons. I have not done so. Each accused’s silence in Court is not evidence against him or her; does not constitute an admission by him or her; may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a ‘makeweight’ in assessing whether the prosecution has proved its case beyond reasonable doubt.
9 In assessing the evidence of the witnesses, I have had regard to their demeanour. I have considered their evidence in the context of the other evidence in the case. I have considered their answers in cross-examination, and applied my judgment to the evidence. I am entitled to accept the evidence of any witness in whole, in part or not at all. Even if I were to find a witness to be unreliable about some part of the evidence, it does not follow that I must not accept other parts of the witness’s evidence.
10 Finally, I remind myself that I must determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lays in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
The Offences
[2] I acknowledge that, in relation to dot point 6, count 2 is charged in the alternative and that depending upon the verdicts entered in relation to count 1, it may or may not be necessary to consider guilt and/or enter verdicts in relation to count 2.
Criminal Neglect
The offence of Criminal Neglect is set out in s 14 of the Criminal Law Consolidation Act 1935 (‘the Act’), which relevantly provides:
14—Criminal liability for neglect where death or serious harm results from unlawful act
(1) A person (the defendant) is guilty of the offence of criminal neglect if—
(a)a child or vulnerable adult (the victim) dies or suffers serious harm as a result of an unlawful act; and
(b)the defendant had, at the time of the act, a duty of care to the victim; and
(c)the defendant was, or ought to have been, aware that there was an appreciable risk that serious harm would be caused to the victim by the unlawful act; and
(d)the defendant failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect the victim from harm and the defendant’s failure to do so was, in the circumstances, so serious that a criminal penalty is warranted.
Maximum penalty:
(a)where the victim dies—imprisonment for 15 years; or
(b)where the victim suffers—serious harm imprisonment for 5 years.
(2)If a jury considering a charge of criminal neglect against a defendant finds that—
(a)there is reasonable doubt as to the identity of the person who committed the unlawful act that caused the victim’s death or serious harm; but
(b)the unlawful act can only have been the act of the defendant or some other person who, on the evidence, may have committed the unlawful act.
the jury may find the defendant guilty of the charge of criminal neglect even though of the opinion that the unlawful may have been the act of the defendant.
(3)For the purposes of this section, the defendant has a duty of care to the victim if the defendant is a parent or guardian of the victim or has assumed responsibility for the victim’s care.
(4)In this section—
act includes—
(a)an omission; and
(b)a course of conduct;
child means a person under 16 years of age;
serious harm means—
(a)harm that endangers, or is likely to endanger, a person’s life; or
(b)harm that consists of, or is likely to result in, loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or
(c)harm that consists of, or is likely to result in, serious disfigurement;
unlawful—an act is unlawful if it—
(a)constitutes an offence; or
(b)would constitute an offence if committed by an adult of full legal capacity;
vulnerable adult means a person aged 16 years or above whose ability to protect himself or herself from an unlawful act is significantly impaired though physical or mental disability, illness or infirmity.
The elements of this offence, which the prosecution must prove beyond reasonable doubt, are that:
· TW, a child, [3] suffered serious harm as a result of an unlawful act.[4]
· The unlawful act is an act which constitutes an offence.
· The accused each had, at the time of the unlawful act, a duty of care to TW.
· Each of the accused was, or ought to have been, aware that there was an appreciable risk that serious harm would be caused to TW by the unlawful act.
· Each of the accused failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect TW from harm.
· The failure to take proper steps was, in the circumstances, so serious that a criminal penalty is warranted.
[3] I am satisfied that at the time of the alleged offending TW was aged 2 years and 9 months.
[4] The words ‘child’, ‘act’ and ‘unlawful’ and the phrase 'serious harm' have the meanings assigned to them by s 14(4) of the Act.
Aggravated Creating a Risk of Serious Harm
The offence of Aggravated Creating a Risk of Serious Harm is set out in s 29(2) of the Act, which relevantly provides:
29—Acts endangering life or creating risk of serious harm
...
(2)Where a person, without lawful excuse, does an act or makes an omission—
(a)knowing that the act or omission is likely to cause serious harm to another; and
(b)intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
that person is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 12 years.
(3)Where a person, without lawful excuse, does an act or makes an omission—
(a)knowing that the act or omission is likely to cause harm to another; and
(b)intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
that person is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 5 years;
(b)for an aggravated offence—imprisonment for 7 years.
...
The elements of this offence, which the prosecution must prove beyond a reasonable doubt, are that:
· Each accused made an omission.
· Each accused had an obligation or owed a duty of care to TW.[5]
· The omission was made without lawful excuse.
· The omission made was, as a matter of fact, likely to cause serious harm to TW.
· Each accused knew that the omission was likely to cause serious harm to TW.
· At the time of the omission, each accused either intended to cause serious harm, or was recklessly indifferent as to whether such harm was caused.
[5] H Ltd v J & Anor [2010] SASC 176 [73].
Section 21 of the Act sets out the relevant definitions that apply to s 29. It provides:
21—Interpretation
In this Division—
cause—a person causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm;
If a victim suffers serious harm as a result of multiple acts of harm and those acts occur in the course of the same incident, or constitute a single course of conduct, a person who commits any of the acts causing harm is taken to cause serious harm even though the harm caused by the act might not, if considered in isolation, amount to serious harm.
harm means physical or mental harm (whether temporary or permanent);
lesser offence, in relation to an offence against this division means—
(a)in relation to an aggravated offence—the basic offence or another offence against this Division, Division 7AB or section 32A, for which a lesser maximum penalty is prescribed;
(b)in any other case—another offence against this Division, Division 7AB or section 32A for which a lesser maximum penalty is prescribed;
mental harm means psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm;
physical harm includes—
(a)unconsciousness;
(b)pain;
(c)disfigurement;
(d)infection with a disease;
recklessly—a person is reckless in causing harm or serious harm to another if the person—
(a)is aware of a substantial risk that his or her conduct could result in harm or serious harm (as the case requires); and
(b)engages in the conduct despite the risk and without adequate justification;
serious harm means—
(a)harm that endangers a person’s life; or
(b)harm that consists of, or results in, serious and protracted impaired of a physical or mental function; or
(c)harm that consists of, or results in, serious disfigurement.
The Prosecution Case in Overview
The accused T is the biological mother of TW. TW was born on 18 August 2010, when T was 17 years old.
T and TW lived with T’s parents,[6] C and Y, for a period of about 18 months shortly after TW’s birth. On the Crown case, T was not an attentive mother, and Y, and others, provided a substantial amount of care to TW.
[6] When using the term ‘parents’, I acknowledge that although C is the step-father of T, she referred to and treated them as her parents.
In early 2013, T met and commenced a relationship with H. H was, at that time, living in a ‘share house’ at North Haven. T, and shortly thereafter TW, moved in with him for a relatively short period of time. In around mid May 2013 both of the accused and TW moved to a new house in Smithfield, where they lived as a family unit. On the Crown case H had assumed a duty of care for TW, at least from the time they moved to Smithfield.
C and Y saw both the accused and TW at the Smithfield house on Sunday, 26 May 2013, and noted TW to be both happy and healthy. T then visited Y at her workplace during her lunchbreak on the following day. TW was not with her.
They next saw T on Wednesday evening, when she visited their house to borrow a screwdriver. She told her parents at that time that TW had been unwell and that she had been vomiting.
A locum doctor visited TW at home on Thursday evening following receipt of a telephone call to the medical practice by T, on behalf of TW, whom she said had symptoms of vomiting and diarrhoea. At that time the locum doctor noted some general bruising on TW and that she exhibited symptoms consistent with dehydration. He recommended TW be taken immediately to hospital. He offered to arrange an ambulance transfer, but this was declined by the accused who said they would take her to hospital.
TW was not taken to hospital, and no further medical treatment for her was sought by either of the accused.
On Friday, 31 May 2013, C received a phone call from T, who was upset and reported that TW was still unwell. When he asked why TW had not been taken to the doctor, T replied that it was because TW had bruises on her.
C and Y then drove over to the Smithfield house. They noted that TW was obviously unwell and decided to take her to their house to treat her. However, TW’s condition quickly deteriorated and they changed their minds and drove her to a local GP, and then to the Lyell McEwin Hospital. From there TW was transferred to the Women’s and Children’s Hospital.
TW presented at that hospital with multiple bone, soft tissue, and internal organ injuries. She had internal bleeding, as a result of her mesentery having been torn away from her small intestine. This injury led to the death of a section of her intestine, which had to be surgically removed. Surgeons reported that the perforation of this tissue was ‘imminent’, which, had it occurred, may have had fatal consequences. TW’s liver was also lacerated in two places; the blood supply to her left kidney had ceased, and she had fractures to her pubic bone, wrists and a left rib.
TW also had significant bruises and abrasions, which the Crown assert would have been obvious to both accused, in the days leading up to her hospital admission.
Both accused were interviewed by police. T provided explanations for some of the bruising. These included a fall in the bath whilst in H’s care; T grabbing TW on the arm when she was naughty; a misguided smack to the bottom that contacted her lower back; and pushing TW into the side of the toilet bowl when she was vomiting. H denied that either of them struck or injured TW beyond giving her a ‘normal smack’.
The Crown case is that TW was physically assaulted on one or more occasions during the week leading to her admission to hospital on 31 May 2013. It alleges that both accused had a duty of care to TW, and that either one or both of them were responsible for the assault or assaults.
The Crown alleges that regardless of which accused inflicted the injuries the infliction was intentional.
In terms of count 1, it is alleged that both accused knew TW had suffered injuries and was at risk of succumbing to those injuries. Both accused failed to prevent the assaults, and then failed to take steps to prevent TW’s condition worsening by seeking medical attention.
Count 2 was particularised more discretely. It was asserted by the prosecution that following the locum doctor’s advice on the Thursday night, each accused should have taken TW immediately to hospital. In short, count 2 is an omission to heed the medical advice, thereby exposing TW to the risk of serious harm.
The Trial
During the trial the prosecution called the following witnesses to give evidence:
· C, the step-father of the accused T.
· Y, the mother of T.
· J, the mother of H.
· Ms R, a friend of T, who often provided care for TW. T also gave Ms R an explanation for some of the bruising sustained by TW.
· Ms S, a former receptionist at the GP clinic where C and Y initially took TW on Friday 31 May 2013.
· Dr Radisic, the locum doctor who visited the accused at their Smithfield home and examined TW on the night of Thursday 30 May.
· Dr Tee, a paediatrician employed by Child Protection Services, who undertook a forensic medical assessment of TW and of the injuries sustained by her.
· In addition to this evidence, the prosecution tendered a number of declarations without objection.
Discreditable Conduct Evidence
T filed a Notice of Intention to Adduce Discreditable Conduct Evidence against H.
When the trial commenced, Mr Healy indicated that her application to adduce this evidence was not to be pursued. However, on the following morning, after the trial had commenced, and after C had completed his evidence, Mr Healy sought leave to both re-enliven and amend her application.
After submissions from counsel, I granted leave for the application to be re-opened. The Notice, as amended, relevantly provided:
Particulars of the evidence of conduct
A In respect of the first item of discreditable conduct:
A1The nature of the discreditable conduct is [H] had a violent disposition towards [T] during the domestic relationship post arrest including physical and mental violence.
A2The witnesses from whom the evidence is to be led, whether in examination-in-chief or in cross-examination are [T] [and] [Y].
A3The use of the evidence said to be permissible under section 34P(2)(b) in respect of Count One as [sic] [is relevant] to properly assist the Court in deciding who was responsible for the physical injuries of [TW].
Mr Mead opposed the application and I heard submissions from all counsel on the application.
The question arose as to whether, this being a trial by judge alone, the evidence should be admitted de bene esse and ruled upon at the end of the trial. I was referred by Mr Mead to a decision of R v C, CA,[7] wherein Kourakis CJ commented, albeit by way of obiter, that there should be no difference in approach to such an application, whether the trial is with a jury or by a judge sitting alone. Accordingly, and in order to ensure that the trial was conducted in a manner fair to both accused, I decided to rule on the application at the time, rather than rule on the evidence at a later date.
[7] [2013] SASCFC 137 [76], [81]-[82].
After hearing counsel, I ruled that the evidence was not sufficiently probative to be admitted, pursuant to the requirements of s 34P(2)(b) of the Evidence Act 1929, and declined to permit any such evidence to be led.
The Evidence
In these Reasons, where I indicate that I am ‘satisfied’, I intend to mean that I am satisfied beyond reasonable doubt. The same applies to the phrase ‘I accept’ or ‘I find’ where it appears.
The Prosecution Case
C
C is the stepfather of T and in 2013 was employed as a gastroenterology nurse. He commenced a relationship with Y when T was 4 years old. In 2009 T commenced a relationship with one, CW as a result of which TW was born on 18 August 2010. When TW was about 6 months old this relationship ended and both T and TW moved back to live with him and Y. They remained with them for some 18 months to two years before T met H.
He said that T’s relationship with TW was ‘not completely optimal’ and did not encompass the typical mother/daughter bond. He did not see T physically discipline TW. He described TW as a ‘mobile’ child, which I understood to mean active. He did not ever see bruising on her. He described his relationship with T as good and that she relied upon him for general medical advice.
After T met H she moved into a house with him which they shared with about three other people. About two weeks prior to 31 May 2013 H and T moved to a house at Smithfield.
During the time the accused were at Smithfield their respective houses were about a five minute walk apart. There was also a GP clinic about five minutes walk from H and T’s house. The Lyall McEwin Hospital was about 10‑20 minutes drive away. Neither T nor H owned a car.
He and Y saw the accused and TW at their house on the Sunday prior to TW being admitted to hospital. TW appeared to be in good health on that day. He next spoke to T on Wednesday 29 May when she came around to borrow a screwdriver. T told him that TW had been sick, was vomiting and had ‘gastro’. While at his house she received a phone call, (apparently from H because C could hear him shouting) which appeared to distress T. After the call she told him that H had put TW in the bath because TW ‘had been sick all down herself’.
On the Friday of her admission to hospital at around 4-5 pm he received a call from T who sounded concerned. T said TW was still sick; was vomiting and had diarrhoea. She asked them to come around and help. He said that he told her to take TW to a doctor but that she didn’t want to because TW ‘had some bruises on her’. He said that T said that TW has ‘got bruises all up her arms’ and ‘people might think that she’d hurt her’.
They then went around to their house. On arrival H was on the ‘settee’ in the living area. When C saw TW she was standing up near the bathroom. She appeared to him to be lifeless. She didn’t say anything, looked pale and unwell. The only apparent mark he saw was on her face. She had vomit oozing from her mouth, similar in colour to what he described as a mixture of ‘bowel contents and faecal overload’. It was a very ‘browny, greeny colour’. T was in the vicinity but he didn’t particularly notice her. Y picked TW up and took her into the bathroom to wash the vomit off and clean her up. He said T attributed her condition to something she must have eaten at McDonalds the previous Monday.
He and Y determined to take TW home. When they got TW into the car she ‘passed out’ so they then decided to take her straight to the doctor. A Dr Goel examined her at the clinic. During his examination he noticed bruising on her arms and on her chest. On advice from Dr Goel they took her to the Lyall McEwin Hospital.
He said that after TW was admitted to hospital he had a discussion with T about some of the bruises on TW. T said that she had held TW’s arms because ‘she was being sick and pushed her against the toilet’. He asked her about the big bruise on her back but T could not explain how that had been caused.
He said that T had told him that she had given H permission to smack TW ‘if she was naughty’ because he was the ‘father-figure’ in the relationship.
In cross-examination by Mr Healy C did not accept that T told him that she had made an appointment for TW to see a doctor that week. Nor did he accept that prior to taking TW on that Friday they informed T that they were taking TW to the doctor. He said that they were planning to take TW home and get her hydrated, given that he thought she was suffering from a bout of ‘gastro’.
In cross-examination by Mr Mead C said that he was at the house on Friday 31 May for about 20-30 minutes but didn’t interact with H. He agreed that H had only recently ‘come on the scene’ in terms of the relationship with T.
He said that he thought TW had gastroenteritis based upon what he had been told by T. He said that T had told him, after she received the phone call on the Wednesday, that H had told her that TW had slipped in the bath and that she had to go home.
He accepted that T didn’t appear to have a normal maternal bond with TW and that when he confronted her about it she told him to ‘fuck off’. He also said that when she lived with them T had left all of TW’s care to Y.
Assessment of C
C gave his evidence in a concerned, yet dispassionate manner. I am satisfied that he was both truthful and reliable in his evidence. I accept his evidence generally and in the following particular respects:
· T did not appear to him to have a normal maternal bond with TW;
· When he saw TW on Sunday 26 May she acted like a normal, healthy child;
· On Wednesday 29 May T told him (after receiving a telephone call) that she had to go home because TW had been sick, was vomiting and had ‘gastro’;
· On Friday 31 May T telephoned him and told him TW was still sick, was vomiting and had diarrhoea. She told him that she didn’t want to take TW to a doctor because she had bruises all up her arms and that people might think she had hurt TW;
· On arriving at the accuseds’ house (which they did at about 4-5 pm on that day) and observing TW, she appeared to him to be lifeless, pale and unwell. She had vomit oozing from her mouth, similar to bowel contents, and that it was browny, greeny in colour;
· When they arrived H was in the living area and sitting on the ‘settee’;
· T attributed TW’s condition to something she had eaten at McDonalds on the previous Monday. With respect to the bruises on TW’s arms T later told him that she had held her arms while she was being sick;
· He thought she had gastroenteritis based upon what he had been told by T.
Y
She said T resided with them for some 18-24 months before moving in with H. She said that during that time T was not very close with TW and that she, Y did most of the work for TW with respect to things like nappy changing and feeding. She said that T did not spend much time with TW. She described TW as a happy, active child during the time she resided with them. She did not, during this period, observe any unusual bruises on TW. She did, however, recall seeing T smack TW ‘if she was naughty’.
She first became aware of T and H being in a relationship about two months before TW was admitted to hospital. She had been to the house in Smithfield perhaps twice before TW was taken to hospital.
She and C visited the accused on the Sunday before TW went to hospital. T, H, TW and J were there. TW behaved quite normally during the 40 minutes that they were there. She saw T the following day during her lunchbreak. T was there with her friend Ms R. T told her that TW was at home with H.
She saw T next on Wednesday when T came to their home. Whilst there she received a phone call, after which T said to her ‘TW’s slipped in the bath, I’m going to have to go’.
She did not see TW again until about 1:30 pm on Friday when she and C went around to the accuseds’ home. On arrival she described TW as looking ‘lifeless, not talking, vacant expression’. T looked worried. She was crying and looked upset. H didn’t say anything. He just sat on the couch. T said ‘TW’s got gastro and I’m a bit worried’. Y picked TW up and TW vomited ‘down her front, on the couch and on herself’.
When that happened T appeared ‘surprised, upset still and crying’. H got up and got Y a towel. C then told T to get a bag packed because they were going to take her home. Prior to their leaving TW had been undressed, at which time she saw ‘injuries’ on TW’s arms. Immediately upon their leaving, TW’s condition deteriorated and they decided to take her straight to the doctor. That doctor was 5-6 minutes walk away and operated as a ‘bulk bill’ practice. When TW was undressed at the doctor’s rooms she did not notice any further bruising but when she was taken to the hospital she noticed a bruise on her pubic bone and on her back.
In cross-examination by Mr Healy she agreed that on Friday 31 May it was raining. She said that while they were at the house on that day H did not utter a word to her. She said that he didn’t appear to have a ‘look of concern’ on his face. T was distressed throughout the whole time C and Y were there at the Smithfield house.
In cross-examination by Mr Mead she agreed that T didn’t exhibit a maternal connection with TW from about six months after TW was born and that she often found it easier to do things for TW rather than try to get her daughter to do them. She agreed that she used to ring home when at work to check that TW was being looked after properly because of her concern that T was neglecting TW.
She said T would often remain in bed even when TW was crying and needed her attention and did so despite Y telling T that TW needed attention. She agreed that when T first moved out to live with H she left TW living with her and C.
She agreed that when T came to their house on Wednesday 29 May she said to her that TW had been a bit sick and had been vomiting and that it was from something she had eaten at McDonalds on Monday of that week.
She agreed that T had said that TW got on very well with H and that he was very good with her.
Assessment of Y
I accept Y’s evidence as both truthful and reliable. In particular, I am satisfied as to both the truthfulness and reliability of her evidence in the following respects:
· During the time T and TW resided with her and C it was Y who did most things for TW;
· Y often rang home while at work because of her concerns that T might be neglecting TW;
· On Sunday 26 May TW behaved like a normal child;
· On Wednesday 28 May T said she had to go home because TW had slipped in the bath;
· When she saw TW next on Friday she appeared lifeless and had a vacant expression;
· Whilst there H said nothing but got a towel when TW vomited;
· When she vomited T appeared surprised and upset.
Although I accept her evidence in the aforementioned aspects, I think that she must be mistaken about the time that she and C arrived at the accuseds’ home on Friday 31 May. I accept C’s evidence that it was around 5 pm.
J
She is the mother of the accused H. She first became aware of the existence of T sometime prior to Easter 2013. She thought her son and T seemed to be happy prior to the events giving rise to these charges. It was H who informed her that TW had been taken to hospital probably on the day it happened. On the previous Sunday she saw TW who appeared to be well. She said, from her observations, that her son occupied the ‘father role’ in his relationship with T. She often saw both accused and TW when they all visited her at her work.
She said that she spoke to her son on several occasions during the week leading up to TW going to hospital. He told her that TW had been to McDonalds and had thereafter been suffering from ‘gastro-like’ symptoms. She said that he also informed her that they were getting a locum out to see TW.
On Thursday she went around to their house after speaking to H. He asked her to bring around panadol and she decided to bring around some ‘hydralyte’ because TW was still vomiting. When she saw TW on Thursday (about lunchtime) she was initially asleep but clearly not well. When she arrived H was on the phone to a ‘helpline’ seeking information about how to treat TW.
After TW had woken she noticed a bruise on her face. She asked what it was and ‘they said she slipped over in the bath’ and that ‘she got [it], referring to the bruise, on the corner of the bath’. On that day she saw TW undressed on her top half when ‘she went back to say goodbye’. She didn’t see any bruises on her body. Later that day H told her (by telephone) that ‘they [had] decided to get the locum out’. She spoke to him after the locum visited and H said to her, at that time, that TW had gastro. On the Friday morning she spoke to her son who said TW was a ‘little bit better’.
In cross-examination by Mr Mead she agreed that her son had been updating her all week in relation to TW’s condition and seeking her advice as to what he should be doing. From her observations he appeared to have a good relationship with TW. While she was there on Thursday she saw him wake TW to give her fruit juice. She said that H told her on the telephone that the locum had said TW had ‘gastric-like symptoms’.
Assessment of J
Although I felt that J’s evidence was at times understandably partisan with respect to her son, nevertheless, I generally accept J’s evidence as truthful and reliable.
In particular, I accept her evidence in these respects:
· On Sunday 26 May TW appeared healthy and happy;
· H adopted a father role in his relationship with TW;
· In the week of 26-31 May she spoke regularly to her son who said TW was suffering gastro-like symptoms;
· When she saw TW around lunchtime on Thursday, H was on the phone to a helpline;
· During the week H had regularly sought her advice as to what to do for TW.
Ms R
She was a friend of T who studied with her at TAFE. She had seen T smack TW on the hand or wrists to discipline her. She became aware of T having H as a boyfriend from around March 2013.
She saw TW a lot from the time she was born. She ‘babysat’ TW during the time the accused were at North Haven and TW stayed overnight at her house on one occasion for three nights in a row. She never saw bruising on TW nor observed her to be in pain.
She related a phone call she had with T (‘probably a couple of months prior to TW’s birthday of 18 August 2013’) where T told her that TW had been vomiting and that she didn’t want to take her to hospital because she had bruising. She told her that TW ‘had some bruising on her arm from where [she, T] had grabbed her to put her in the naughty corner, ... a bruise on her lower back from where [she] had smacked her and ... a bruise on her pelvis area from where she’s swung her to the toilet to be sick’.
Ms R also said that T thought that the [locum doctor] had said ‘to go to the hospital but she didn’t want to because of the bruising’. She said that T said that TW had sustained the bruise on her face when she slipped in the bath on a night when H was looking after her.
In cross-examination by Mr Mead she agreed that sometimes T didn’t want anything to do with TW and preferred to be away from her. She agreed that TW spent a lot of time in childcare. After looking after TW for three nights T didn’t want to come and get TW but wanted Ms R to return TW. She didn’t agree to do that because Ms R’s mother wouldn’t allow her to do it. She agreed that on one occasion T asked her to lie to Y about T’s whereabouts but that she had refused. She agreed that T told her that TW had been ‘very naughty for her recently but ... was never naughty for H’.[8]
[8] It is unclear as to exactly what ‘recently’ means, although it is likely to have been when the accused were at Smithfield – T110.
She agreed that in relation to her injuries T also told her that ‘she had been running TW down the hallway on her little bike when she had come off it’. She also agreed that she had seen T become frustrated when dealing with TW.
Assessment of Ms R
I accept the evidence of Ms R as both truthful and reliable. In particular, I accept her evidence that:
· In a telephone call with T in around June 2013 T said that TW had bruising on her arm from where she had grabbed her, bruising on her from where she had smacked her and bruising in the pelvis area from where she had swung her to the toilet to be sick.
Ms S
In May 2013 she worked as a receptionist at the GP clinic in Smithfield. She made the appointment for TW to be seen by a doctor consequent upon a call from someone who identified ‘himself’ as her grandparent.
From an examination of the computer booking system she was able to say that there were no previous bookings made for TW. When TW was brought in she observed her being examined by the doctor and noted bruising on her face and arm. Shortly thereafter TW left with her grandparents to go to hospital.
Assessment of Ms S
I accept her evidence as both truthful and reliable.
T – Record of Interview (‘ROI’)
During the interview which took place on 3 June 2013, T was upset and crying. She thought that TW had sustained ‘gastro’ after eating a ‘burger’ at McDonalds. She tried to keep her hydrated and gave her panadol but her condition had deteriorated by Wednesday or Thursday of that week.
She said:[9]
AIt was, because she was still eating it was whatever she’d eaten and then um on I think it was the Thursday um it was just like acids off the stomach and then um I was getting up every hour like, set my alarm like every hour through the night to check on her and um she hadn’t um, she hadn’t thrown up for a while so I thought she was, ya know it was out of her system cos I thought it was gastro. And then I think it was like 4 o’clock in the morning she’d thrown up um in her bed and it was like a dark green colour and I thought well when I’ve had gastro I’ve thrown up whatever’s in my stomach. I’ve thrown up the acids off my stomach and then the bile which is the green colour and that’s what I thought it was. I thought she was getting better because it was getting out of her system. And she was also, she had really bad diarrhoea as well um to the point where it was just like water on the Thursday um, the Thursday night and then on the Friday she didn’t have it at all so I just thought ya know it was getting out of her system, that’s what I thought it was. (my emphasis)
[9] At p 3 of T’s ROI.
She said that H put her in the bath on Wednesday because she had vomited on herself and that ‘she slipped and hit her face’.
On the topic of what happened on Friday 31 May 2013, she said:[10]
QOkay. Alright so what happened on Friday?
AFriday um she, Thursday night she’d been sick in the night and then Friday I went into her at 8 o’clock to check on her and she was already awake so I bought her into the lounge room and put the heater on and I put cartoons on for her and she was just wanted to sit and I was giving her water and then I thought I’d give her a bath, might make her feel better. So she was in the bath and she was saying she wanted to swim in the bath um but she had a sore tummy so I said to her don’t lay on your tummy in the bath because of your tummy’s sore and it’ll make you sick and um yeah she just wanted to go to sleep so I just set up her little couch in the lounge room with her blankets and her bears and stuff and um I was giving her water and ya know we had the electrolytes that [H’s] mum bought round and panadol and um we were just tryna keep her hydrated and ya know cos we thought it was gastro. Just tryna get her to ya know sleep it off a bit as well and then every time she’d just have some of the hydrolyte it wasn’t long after like not even half of what she’d had would just come straight back up and um and then I just um, I was tryna talk to her like where does your tummy hurt and she would say my tummy hurts here and then I called my dad co I didn’t know what to do. I rang my dad cos my dad’s a nurse and my mum and dad came over and um my dad said that he would go and take her to the doctors which I’d already made an appointment for. (my emphasis)
QWhat time did you make the appointment with the doctor?
A4 o’clock I think it was.
[10] At p 8 of T’s ROI.
On the topic of other injuries to TW she said:[11]
[11] At p 9, 10-11 of T’s ROI.
AShe has a couple bruises on her arm um from where I’ve grabbed her arm to put her in the corner when she’s having a tantrum or whatever and she’s got one on her public [sic] bone from where I’ve swung her over to the toilet for her to try and be sick in the toilet. And what the little bruises here are too from where she’s been being sick over the toilet where I’ve been tryna hold her over the toilet cos she’s just throwing up everywhere. And she’s got a bruise on her back cos I went to smack her bum and I missed and got her too high so I know she has those ones there.
...
QSo one smack?
AI don’t exactly remember every single time I’ve smacked my daughter. I’m sure anybody else would say the same thing, they don’t remember exactly every single time they’ve smacked their child but I would never do anything to intentionally hurt her.
QOkay but you’re smacking her causing her bruising. So you know that the smack that you gave her caused her to bruise. Yes? Does [H] ever smack her?
ANo [H] doesn’t smack her, I smack her.
QOkay and in relation to the bruising on her face, you said she hit her head.
AShe slipped in the bath that’s all I know. I wasn’t there, I can’t tell you anything if I wasn’t there.
QOkay because if you normally slip, you normally fall and hit yourself on one side but she’s got bruising to both sides of her face.
AI don’t know, I wasn’t there.
QOkay and she’s also got injuries behind her ear.
AI haven’t seen that.
QShe has bruising on her chest.
AWhich is from being sick over the toilet from me holding her over the toilet.
QOkay that takes a fair amount of force to push her against the toilet to cause it to bruise.
AI didn’t push her against the toilet. If she’s being violently sick she’s gonna be leaning over the toilet bowl. Have you seen the size of her? She’s tiny.
QOkay and you say this is when you swung her around.
AI swung her over to the toilet to be sick, I didn’t, it’s not like I’ve thrown her into a wall or something.
QOkay so what did she hit in order to get that bruise?
AI’m assuming the toilet. (my emphasis)
She said that she only smacked her with her hand and that ‘it’s not like a full on smack’.
With respect to TW’s internal injuries she was asked:[12]
[12] At p 12-13 of T’s ROI.
QI have to ask these questions [T] because your daughter’s got significant bruising and she also has significant internal injuries.
AI didn’t do anything to her. I don’t even know what’s going on, I’m not even allowed to go and see my own daughter.
QOkay. One of your daughter’s kidneys is no longer functioning. Her bowel has been torn from the mesentery which has caused a significant amount of blood in her abdominal cavity and has caused a section of her bowel to die inside of her which has caused her to have a fever and beginnings of an infection which is why she was so ill. These are things that don’t just happen for no reason, it looks as if the mesentery’s actually been torn from the small bowel and looks like an inflicted injury.
ASo how does that happen?
QThat’s what I wanna ask you what’s happened that could possibly have caused that.
ASo what are you saying, what do you think happened? What can happen to cause that sort of injury?
QWe don’t know what’s caused that injury that’s why, has there been any accidents, is there anything, that’s why I’m asking you everything that’s happened to your daughter in the last week.
ANot that I can think of.
QOkay so she fell in the bath and you know that she got an injury to her face but you don’t know which side and you don’t know what happened cos you weren’t home. You say you grab her arms to swing her into the corner when she’s been naughty.
AI never said I grab her arm to swing her into the corner, I said I grab her arm to put her into the corner. I never said I grab her and swing her into the corner, I never said that.
QOkay and you noticed that when you’ve grabbed her arm to put her into the corner that you’ve caused bruising to her arm.
ANot straightaway, it’s not like an instant bruise, I mean I’ve noticed the next day or something and obviously I feel bad about that, it’s not like I would intentionally hurt my own child.
QOkay and you say you’ve gone to smack her on the bottom but you’ve missed and you’ve got her back and you believe that’s how she’s got the bruising to her back.
AYes.
QAnd the bruising to her chest and to her public bone is when she’s been vomiting in this past week. And as to the internal injuries you’ve got no idea how or why she would have those injuries.
ANo idea, I don’t even know what’s going on, I’m not even allowed to go and be there and be with my own daughter, I’ve been sitting at home feeling sick and crying since Friday because I don’t know anything.
QOkay there’s a reason for that and that’s because it’s believed that some of these, these injuries are inflicted injuries, they’re not accidental okay and they’re not in normal places where a child would normally get an injury and normally if somebody smacks a child with an open hand they don’t normally get bruising okay and that raises and [sic] lot of concerns with child protection services, with Families SA and also with us alright. It takes a fair bit of force to cause these sorts of injuries and then on top of that she’s got the internal injuries that at this moment are unexplained okay. And so what the purpose is today is to try to work out how all of this has occurred. Alright and our number one priority, all three agencies, is to make sure that [TW] remains safe so until we can work out how this has all happened to her, we have to make sure that she remains safe and nothing further can happen to her.
AI’m not a bad person, I’ve never been in trouble with police, I’ve never been arrested, I’ve never been in trouble for anything ya know, I work and ya know I study, I’m tryna do the right thing.
In relation to H she said:[13]
Q[T] have you ever seen [H] in the last six months you’ve been with him, since she’s been sort of two and a bit, be angry with her or get frustrated with her?
ANo he never gets frustrated with her, he doesn’t get angry with her.
QHas he ever smacked her at all?
ANo.
QYou ever seen him smack her?
ANo. (my emphasis)
[13] At p 20 of T’s ROI.
In relation to medical treatment she said:[14]
QOkay just one query. After eating McDonalds on the Monday and then she started, she vomited up that night and then started to get worse and by the Thursday she was really bad, can you explain to me well firstly, did you take her to the doctors?
AOh I booked a doctors’ appointment for the Friday at 4 o’clock because I thought she had gastro. If she had, what she had was gastro, as far as I’m concerned what I did was the right thing, I kept her hydrated, I was giving her panadol and I was giving hydrolytes which is what you do for gastro and as far as I’m concerned, if that’s what it was, I was doing everything right. I mean ya know that’s what I thought it was. (my emphasis)
Assessment of T in the ROI
[14] At p 22 of T’s ROI.
It was obvious that during the interview T was in an agitated and somewhat emotional state. In that interview I gained the impression that she tried to ‘downplay’ the extent of her role in any injuries sustained by T. She did, however, admit to causing bruising to TW by, variously, grabbing her by the arms, smacking her and swinging her over to the toilet for her to be sick. She said that she booked a doctor’s appointment on Friday at 4 o’clock. This cannot be accurate because I am satisfied that no appointment was made until an appointment was made that day by C. I also note that by Friday morning TW was complaining of a ‘sore tummy’ which suggests that she may have sustained some injury to her stomach prior to that time.
H – Record of Interview (‘ROI’)
This interview was conducted on 13 June 2013.
During the interview H said:[15]
[15] At pp 2-4, 5, 7 of H’s ROI.
QOkay on Friday is when [TW] was taken to the hospital, can you tell me what happened leading up to her taking, her going to the hospital?
AWhat happened was she was really ill, she’s been vomiting for a couple weeks now, we actually thought she had gastro or something, we’ve taken her to the GP, we’ve taken her to the locum, the locum’s come round our house, we’ve taken her to the doctors’ surgery around the corner, we thought she had gastro, she’s been throwing up for a coupla weeks now. Now on Friday when it comes she was really, really sick, she was really pale in the face, she lost colour in her lips, we were really, really worried about her, we took her to the doctors’ surgery, the doctor turned around and said this is the doctor’s exact words, never mind why don’t you try and perk her up and fed [sic] her. That was his exact words. (my emphasis)
QWhich doctor was that?
AThe GP around the corner from the house at Smithfield.
QOkay do you know the name of the clinic or the name of the doctor?
ANo [T’s] dad actually took her there.
QOkay and when was it that the doctor said that?
AThat was on Friday.
QWere you there when he said that?
ANo I wasn’t that was [T’s] dad who was there.
QOkay so how do you know the doctor said that?
ABecause he told me he said that. Why would I just say that, he told me that the doctor said that to him.
QOkay so [T’s] dad told you the doctor said that.
AYes that’s correct.
QSo which other doctor, which other GP or locum have you taken [TW] to?
AThe locum come to our house.
QOkay when was that?
AUm Thursday night.
QSo Thursday, the Thursday just gone.
AI think so yes.
QOkay and you said you took her to the GP before that.
AI just told you [T’s] dad took her to the GP.
QOkay what you said to me was that you’ve taken her to the GP, you’ve had a locum come out and then she went back to the GP.
ANo [T’s] dad took her to the GP, are you gonna listen to me?
...
AWhatever, who cares if you do or don’t. Every kid gets a smack, every kid gets a smack, nobody intentionally ever hurts this little girl. This little girl is one of the little girl in my entire life I’ve ever met who never ever cries. She never ever, ever cries, she does not feel pain, she never ever cries, she’s the happiest little girl, she’s never upset, even when we tell her off, the only time she ever cries is when we tell her to put in the corner, if she gets a smack on her hand or on her bum or on her back, she never cries. We never ever intentionally hurt her, we love this little girl, she’s our fucking life, she’s, she’s a little girl. She’s two and a half years old, why would we ever intentionally hurt her. She’s got problems in her stomach, why would we ever intentionally hurt her? (my emphasis)
...
QOkay so how did she get bruises?
AWha’d you mean how’d she get bruises, from a smack.
QOkay I have children, you’re right, I do.
AShe bruises really easy.
QI’ve smacked my children and they’ve never bruised.
AOkay well she bruises really easily okay. I don’t care what the fuck you’ve got to say eh because she never gets hit hard, nothing ever happens to her.
QHas she ever had bruises before from a smack?
AYes she has, she bruises really easily, the bruises on her arm are from [T] grabbing her arm. That is from ]T] grabbing her arm. Not even forcefully, grabbing her arm and putting her in the corner...
...
QThe bruising here?
AIt’s from leaning against the toilet.
QSo that’s from leaning against the toilet.
AAre you looking at me like I’m fucking lying? It’s from leaning against the fucking toilet. (my emphasis)
Assessment of H in the ROI
H was in a highly agitated state during the interview and his responses need to be viewed with that in mind. I do however note that he initially suggested that T and he had taken TW to the doctor. He went so far as to relate what he said were the doctor’s exact words. This was clearly untrue. Not only did C and Y take TW to the doctor but the doctor’s recommendations was not to ‘perk her up’ but take her straight to hospital. H also stated that every child ‘gets a smack’. Finally, I note that he attributed the bruising around her abdomen area as coming from her leaning against the toilet bowl.
Possible explanations for this last answer are that he had discussed an explanation for that injury with T prior to speaking to the police, or alternatively witnessed her coming into contact with the toilet bowl. When considering the evidence as a whole, in my view, the latter explanation is more likely. Despite making an appropriate allowance for his agitated state, I nevertheless viewed his answers as the responses of a person trying to ‘paint himself’ in a favourable light.
Dr Radisic
While working as a locum he attended at the accuseds’ home on 29 May 2013. At 6:45 pm he examined TW. A male person, whom he assumed to be the partner of the mother of the child, had opened the door to allow him to enter the house. A third person, another male, was in the house. He described TW as being alert, pale and ‘pretty dehydrated’. He said that the majority of TW’s ‘history’ was given to him by the mother. The main complaints attributed to TW were ‘vomiting, diarrhoea, being sleepy and falling over during previous two days’.
On examination he observed multiple bruises on TW, mainly on the body and the face. He said TW was alert but pale. She had ‘sunken eyes’ which he said was a sign of dehydration, a temperature of 36°, multiple bruises on the body and an abdomen which was ‘soft but not tender’. He thought she might have had gastroenteritis based on both the history given to him and her appearance. He didn’t observe any ‘guarding’ of the abdomen region by TW. He said that his recommendation was that ‘the child was required to go to hospital for further investigation and management’. The absence of guarding suggested to him that any serious internal injury either happened later or had only just happened.
He was specifically talking to the mother during the consultation, but the person he perceived to be her partner also ‘came in and out’ during the consultation. He emphasised the need for her to go to the hospital ‘right now’ and he heard the other male person offer to transfer TW to hospital while he was there.
He suggested an ambulance but indicated that ‘they have said they will take the child to the hospital’. A free ambulance service was available but this, he said, could have taken an hour or two to arrive.
In cross-examination by Mr Healy he agreed that he palpated the abdomen and detected only ‘mild tenderness but no guarding’.
If TW had serious internal injuries including a fractured pubic bone and mesentery tear he would have expected tenderness and guarding. TW appeared to him to be comfortable in her mother’s arms.
In cross-examination by Mr Mead he said he did not record where on the body the bruises were. He examined her arms but did not note bruising on them. He agreed that at least one of the men, perhaps both, may not have been present when the topic of TW going to hospital was raised. In re-examination he agreed that, in view of the examination he conducted, he would not necessarily have expected to detect a non-displaced fracture to one of TW’s ribs.
Assessment of Dr Radisic
I accept Dr Radisic’s evidence as truthful and generally reliable. His recollections were based largely on a recall derived from his notes and to that extent were limited.
I do however, accept his evidence in these particular respects:
· One of the two male persons there took more of an interest in TW’s condition;
· Dr Radisic thought she might have had gastroenteritis based in part on the history he obtained;
· He recommended that TW go to hospital immediately;
· He saw no signs of guarding in the abdomen on examination and TW appeared comfortable in her mother’s arms, suggesting that any serious internal injury could either only just have occurred or happened later;
· TW had multiple bruises on her body even though he could not say where that bruising was located.
Dr Tee
She is a paediatric physician with Child Protection Services. Dr Tee first examined TW on 1 June 2013. She relied in giving her evidence on the hospital notes which recorded not only her findings but also the assessment and findings of other medical practitioners at the Women’s and Children’s Hospital. She said that TW weighed 11.9 kg which placed her in the 10th percentile for her age. Examination of her abdomen by the Emergency Department doctor disclosed an abdomen which was tender, guarded and distended. She described a guarded response as being involuntary in the sense that one has ‘something going wrong in the abdominal cavity where your abdominal musculature is trying to tense up and protect and it’s being irritated and it’s tense because of that’.
TW was operated on at 1:15 am. The surgeons found abdominal wall bruising, necrotic tissue requiring the removal of some necrotic small intestine. The mesentery (which contains the blood vessels to the small bowel) had the appearance of being lacerated away from the bowel wall.
They noted that a 45 cm section of the duodenum (or small bowel) was necrotic making the risk of its perforation imminent. A perforation in the duodenum, Dr Tee said, was likely to cause significant infection and death. TW remained in hospital until her discharge on 25 June 2013. During her stay she also underwent further bowel surgery.
Dr Tee examined her again on 6 June and 19 June 2013. She noted extensive bruising on TW. Tests were conducted on her to ascertain whether TW was a person who was likely to bruise more easily than normal. Other tests were conducted on her to see whether her bones might break more easily than normal. Both tests indicated that, in these respects, TW was normal.
Dr Tee identified a number of bruises or abrasions to the face, which emanated from a number of separate impacts, all of which may have been the result of blows. The injuries to the face (both bruises and abrasions) were likely to have occurred within days of Dr Tee’s examination of her on 1 June 2013. A fall in the bath on the previous Wednesday could account for one but not all of these injuries.
Bruising, which she observed to her chest, was likely to have occurred within days of her examining TW. The bruising to her abdomen was likely to have been the result of two separate injuries. The bruise to her pubic area was likely to have occurred within a matter of days of her being examined and was due to forceful direct impact. She had a large bruise in the middle of her lower back, which, in her view, had been caused as a result of forceful direct impacts. This bruising was also sustained within days of her examination. A smack with the hand (she said) could not account for the bruising which would have required multiple impacts of a force greater than was to be expected in the normal handling of a child. Impact blows, including punching, kicking or stomping, could account for this bruising. She said that bruising to the pubic area is rarely seen in a child but could occur e.g. if a child fell onto a leg of a chair. It is, however, she said, very rare.
The fracture to her pubic bone was also very rare. Dr Tee had never seen one in the course of her work. It could occur as a result of high force injuries such as a fall from a significant height, or a motor vehicle accident. As a result, a child would experience ‘significant pain and be distressed, crying, upset and not walking very well’. Although a child could sustain such an injury e.g. on hitting the edge of a toilet bowl, it would have required significant force, such as it might occur if a child fell out of a tree.
In terms of the bruising to her legs, in areas such as her upper thigh, this, she said, was not consistent with having occurred in the course of normal childhood activity. TW also had circular bruises to the back of her right and left forearms, which were consistent with forceful gripping.
Apart from the fracture to her pubic bone TW also had fractures to a rib and to her right and left forearms. The fracture to her left forearm (‘ulna’) was an older fracture, sustained perhaps weeks prior to her admission, but no more than two months.
From the time of the occurrence of that fracture she said that TW would have been in pain. There may also have been swelling and a preference in her to use her uninjured arm. These symptoms would have lasted for some weeks and would be obvious to her care givers.
The fracture to her right wrist could, she said, be accounted for by a child falling onto an outstretched hand and might have occurred in normal childhood activity. The injury was likely to have occurred within a few days of her being admitted to hospital. She would have likely experienced similar symptoms to those referred to in relation to the other arm.
The fracture to her 12th rib was more likely to have occurred from direct impact rather than a compression force. It was not identified until 17 June and was likely to have been 7-10 days old at least. It was unlikely to have occurred in hospital and was more likely, in her view, to have occurred at the same time as the bruising to her back, referred to above. It too was unlikely to have resulted from normal childhood activity.
In terms of internal injuries, the tear to the mesentery would cause pain, vomiting and diarrhoea and ultimately lead to ‘guarding’ and tenderness. These symptoms could develop over a number of hours to days.
This injury, she said, requires a deceleration force whereby the abdomen is crushed and the mesentery ‘shears’ or ‘tears’ away from the bowel. She said that the injury is seen in children in car accidents after coming into contact with seatbelts, falls from heights, being kicked by a horse or by a series of punches and kicks.
She identified an injury to TW’s left kidney and said that it was consistent with the blood supply to it being stopped. A rapid deceleration force can, she said, also be the cause for damage to that renal artery. Although this injury cannot be dated, it could well have occurred at the same time as the mesentery tear.
She also noted two lacerations to the liver and bruising to the large bowel. The lacerations may have occurred as a result of the same mechanism which bruised the large bowel. The injury to the large bowel, she said, required direct impact, whereas the injury to the liver could have occurred either by direct impact or compression of the abdomen. The forceful direct impact to the pubic area could not account for the contusion to the large bowel. In short, the injuries to the large bowel and the mesentery would have occurred, in her view, as a result of separate mechanisms or blows.
Bowel tests were conducted which revealed no infectious (bacterial or viral) gastroenteritis in TW’s stools. These tests were conducted on 1 June. Dr Tee said that if TW had been suffering from infectious gastroenteritis in the ‘few days leading up to her admission’, it would have been able to be detected. As such, gastro-like symptoms being experienced by TW on Thursday or Friday were more likely to be due to other causes.
In Dr Tee’s opinion TW had sustained some 9-10 incidents of injury. She said that the internal injuries (such as the fractured pubic bone and mesentery tear) were not the sort of injuries a 2-3 year old child could cause by themselves unless e.g. ‘they jumped out of a second-storey building’. In her view, the injuries must have been inflicted by another person. While an injury to the pubic bone could result from contact with the toilet bowl, she said that a child would need to be ‘slammed against’ the toilet bowl or dropped on top of [it]’.
In cross-examination by Mr Healy Dr Tee said that if a child was ‘slung into the toilet bowel’ that could cause the injury to the mesentery and the renal artery injury. She said that a fall in the bath could not account for the bruising to TW’s back. She would expect, if the pubic bone injury had already occurred, for it to have been obvious on examination by a locum doctor. Slipping over in the bath would not be a likely cause of her kidney damage.
In cross-examination by Mr Mead she said that the bruising to TW’s back would require ‘multiple forceful hits’. The fracture to the right wrist, she said, was likely to have occurred around 29-31 May 2013, although the precise timing of the injury is difficult. This ‘window’ also applied to the rib and pubic bone fractures.
She said that if a child was alert and able to respond to a locum doctor it is unlikely that she would have had the fractures and other injuries at that time. Furthermore, she said that if a child was thrown or swung into the toilet bowl and was airborne at the time she collided with the toilet bowl, such a mechanism may account for her pelvic fracture and mesenteric injury. It could also cause the liver laceration and injury to her kidney. However, it could not account for the bruising to her large bowel, the rib fracture on the back of her chest, the right wrist fracture or arm bruises, buttock bruises or back bruises.
Testing, which had been done in relation to TW’s white blood cells, would suggest that the injury to the small bowel was ‘at least several hours old’ when she was examined and operated on.
Assessment of Dr Tee
Dr Tee was a highly qualified medical practitioner in her area of paediatric trauma. She impressed me as both a fair and balanced witness. I have no hesitation in accepting her evidence not only in general but also in the following particular respects:
· TW was a person whose response to bruising or bone breakage was normal;
· TW presented with bruising and abrasions to her face, limbs and body; lacerations to her liver; bruising to large bowel; tearing of her mesentery; damage to her renal artery and fractures to pubic bone, rib and arms/wrists;
· All of her injuries, apart from one to her left wrist, occurred within a matter of days of her admission to hospital;
· All of her injuries resulted from impacts involving significant levels of force;
· A number of the injuries could have arisen from a child such as TW being swung in the air and while airborne coming into contact forcefully with a toilet bowl;
· The possibility that the fracture to her left arm, when viewed in isolation, occurred as a result of normal childhood activities could not be discounted;
· The injuries to her large bowel and rib were sustained as a result of a separate mechanism to that which caused the mesentery tear and fractured pubic bone;
· All the injuries she sustained would cause TW varying degrees of pain and distress which would have been obvious to a care giver;
· More than one application of force was required to cause these injuries.
The Tendered Declarations
The declarations of Ms C, Dr Nehvi and Mr R were tendered by consent and without the necessity for them to be called. It is unnecessary to record the details of their evidence.
Ms C was a TAFE lecturer where T did a TAFE course.
Dr Nehvi saw TW upon her admission to the Lyall McEwin Hospital and made arrangements for her to be transferred urgently to the Women’s and Children’s Hospital.
Mr R is a casual medical telephonist who answered a call from T on Thursday 30 May and booked the locum doctor to visit later on that day in order to examine TW.
T told Mr R that TW might have gastro and that she had been vomiting for the last few days and that she and her boyfriend thought she might be dehydrated because she had passed out.
The Defence Case
Neither accused elected to give evidence. As I have already indicated that was their legal right and I have drawn no inference adverse to either of them for exercising that right.
Circumstantial Evidence[16]
[16] In what follows, I have adopted the analysis of Judge Lovell, as he then was, in R v Joyce [2014] SADC 125.
Where, as is the situation here, the case against an accused person rests, to a significant extent upon circumstantial evidence, the jury or a judge sitting without a jury, cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’.[17] To enable me to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his/her guilt should be a rational inference, but that it should be ‘the only rational inference that the circumstances would enable [me] to draw’.[18]
[17] Peacock v The King (1911) 13 CLR 619.
[18] Plomp v The Queen (1963) 110 CLR 234.
A case is not bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that ‘according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed’.[19]
[19] Martin v Osborne (1936) 55 CLR 367.
While this statement of principle is uncontroversial it is really ‘no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt’.[20]
[20] Knight v The Queen (1992) 175 CLR 495 at 502.
However, for an inference to be reasonable it must rest upon something more than mere conjecture.[21] It is necessary to weigh and consider the totality of the evidence and in doing so the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence.[22]
[21] Peacock v The King (supra).
[22] R v Micallef [2002] NSWCCA 480.
It is of critical importance to remember that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.[23]
[23] Shepherd v The Queen (1990) 170 CLR 573.
Often in a circumstantial case there is evidence of matters, which looked at in isolation from other evidence, may yield an inference compatible with the innocence of an accused. But a circumstantial case is not to be considered piecemeal.[24]
[24] R v Hillier (2007) 228 CLR 618 at [48].
As was said in R v Chamberlain (No 2):[25]
At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness “separately in, so to speak, a hermetically sealed compartment”; they should consider the accumulation of the evidence...
[25] (1984) 153 CLR 521 at 535.
Similarly, in a case depending on circumstantial evidence, one should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that what must be considered is ‘the weight which is to be given to the united force of all the circumstances put together’.[26]
Discussion
[26] Ibid at 534.
Count 1
Prior to considering the various elements of this charge, each of which the prosecution must prove beyond reasonable doubt, it is convenient to note that in the Second Reading Speech, which introduced amendments to the Act which introduced s 14 in its current form, the then Attorney General said of the section that:[27]
It covers two kinds of case. The first is where there is no suggestion that it was the accused who actually killed or seriously harmed the victim; the second is where the accused is one of a number of people who had the exclusive opportunity to kill or seriously harm the victim and where, because no member of the group can be eliminated as the principal offender, no principal offender can be identified, with the result that neither the accused, nor any other member of the group, can be convicted either as a principal offender or an accomplice.
[27] South Australia, Parliamentary Debates, Legislative Assembly, 12 October 2004, 333 (M J Atkinson, Attorney General).
And:[28]
When a person is charged with criminal neglect, the assumption is that the unlawful act that killed or harmed the victim was committed by someone else. In cases where it is impossible to tell which of two or more people killed or harmed the victim, but it is clear that one of them did, it would be possible to escape conviction for criminal neglect by repudiating that assumption. The accused could simply point to the reasonable possibility that it was he or she, and not someone else, who killed or harmed the victim. To prevent this perverse outcome, the Bill makes it clear that a person accused of criminal neglect cannot escape conviction by saying there was a reasonable possibility that he or she was the author of the unlawful act.
[28] Ibid at p 334.
It was submitted by Mr Mead that in circumstances where a court was satisfied beyond reasonable doubt that only one of the accused committed the unlawful act, s 14 would have no application.[29] It was submitted that s 14 would have no application because the main focus of the section is concerned with a failure to mitigate harm or mitigate unlawful acts.
[29] See Mr Mead’s Outline of Submissions at p 2.5 and T289-290.
I do not accept this submission. In my view, the passages referred to from Hansard make it tolerably clear that the fact that a court is able to conclude that one particular accused perpetrated the unlawful act or acts is no impediment to a conviction for this offence. Furthermore, as Stanley J observed in R v N-T and C,[30] despite the fact that the focus of the section is on omission not commission, it is nevertheless necessary to identify an unlawful act or acts upon which the contravention of s 14 depends.
[30] [2013] SASC 200 at [22]-[23].
With those observations in mind, I now turn to consider the elements of a charge under s 14.
The Elements
In this case the prosecution must prove each of the following elements beyond reasonable doubt, namely that:
(a) TW, a child, suffered serious harm as a result of an unlawful act;
(b) The unlawful act is an act which constitutes an offence;
(c) At the time of the commission of the unlawful act each of the accused had a duty of care to TW;
(d) Each of the accused were, or ought to have been aware, that there was an appreciable risk that serious harm would be caused to TW by the unlawful act; and
(e) Each of the accused failed to take steps that each could reasonably be expected to have taken in the circumstances to protect TW from harm and each of the accused’s failure to do so was so serious that a criminal penalty is warranted.
Regardless of whether it was either one or both of the accused or some, as yet, unidentified third person who committed the alleged offence, it is necessary for me to consider and make findings with respect to some of the ‘threshold’ issues which the prosecution needs to establish in any event.
Serious Harm
I am satisfied, based on the evidence of Dr Tee, that prior to TW’s admission to hospital, on 31 May 2013, she had suffered serious harm. A number of the injuries sustained by TW constituted serious harm in that they resulted in a serious and protracted impairment of her physical function.
Serious harm on this basis was constituted first by the extensive bruising and abrasions to her face, legs, back and chest. It was also constituted by the fractures to her rib, pubic bone and to her left and right wrists. Thirdly, on this basis it was also constituted by the bruising to her large bowel, damage to her renal artery and the lacerations to her liver.
I am also satisfied that the injury to the mesentery and the resulting necrosis of her small bowel constituted serious harm in that it was likely to endanger her life.
The question then arises as to whether the serious harm to TW was caused as a result of an unlawful act or acts.
The Result of Unlawful Act or Acts
I am satisfied, on the evidence of Dr Tee, that TW was a child who neither bruised abnormally nor one whose bones were other than of normal strength.
It was Dr Tee’s opinion (which I accept) that many of her injuries could not be accounted for by normal childhood activities. Dr Tee acceded to the proposition that a fall in the bath (particularly if TW came into contact with a protuberant object in the bath) could account for perhaps one of the bruises on her face or a bruise on her back, but not the balance of the bruising and abrasions to her face and trunk or indeed to her arms and legs.
Dr Tee was not able to proffer an opinion upon the probable cause of the fracture of the left wrist. The evidence does not permit me to conclude beyond reasonable doubt that it was caused by an unlawful act. As to the right wrist fracture Dr Tee explained that it was likely to have resulted from a fall onto an outstretched hand. Dr Tee agreed that it could possibly have been accounted for by a normal childhood accident.
Dr Tee gave this answer in relation to specific questioning about this particular injury. When this injury (given its likely timing which I will discuss later) is seen in the context of the other serious internal injuries which TW sustained, together with the extensive recent bruising and abrasions (which I have also found to be serious) over a large part of her face and body, I reject, as a reasonable possibility, that it could have been sustained accidentally.
Lest there be any doubt when speaking of serious internal injuries, I intend to mean the fracture to the pubic bone, tear to the mesentery, damage to the renal artery, lacerations to the liver, bruising to the large bowel and fractures to the right wrist and rib.
Dr Tee accepted that, if TW came into collision with a toilet bowl, such a collision could bruise and fracture the pubic bone, tear the mesentery, damage the renal artery and lacerate the liver. However, the clear evidence from Dr Tee, which I accept, was that the forces involved in such a collision would need to approximate forces involved in things like falling from a building, being kicked by a horse or being in a car crash. If these injuries were sustained in a collision with a toilet bowl, they could only have occurred if the forces involved equated with a mechanism whereby TW was swung while ‘airborne’ into the toilet bowl in such a way that her pubic bone collided with the edge of the bowl. I am quite unable to say whether this is the precise mechanism which, in fact, caused these injuries. I am, however, satisfied that if the injuries were sustained during a mechanism so described, it constituted an unlawful act, namely an assault. It is not possible, in my view, to swing a child into a toilet bowl with sufficient force to cause such injuries and categorise it as innocent or accidental. If the injuries occurred in some other unexplained manner, I am satisfied equally that they could only have been sustained as a result of an unlawful act, being an assault or series of assaults. In short, there is no hypothesis consistent with innocence or accident which could account for such injuries.
Dr Tee also said that the collision with the toilet bowl, in the manner referred to above, would not account for the bruising to the large bowel or the wrist and rib fractures.[31] Whilst the exact cause of these injuries remains unexplained, I am, nevertheless, satisfied that they too could only have been caused by an unlawful act or acts, namely one or more assaults.
[31] She also said that it could not account for the extensive bruising to TW’s face and body.
Finally, there is the very extensive bruising and abrasions to her face, limbs and trunk. I accept that an accidental fall in the bath could account for one such bruise to either TW’s face or back but not to both areas. There is again, in my view, no ‘innocent’ or accidental explanation for the remaining bruising and abrasions. I am satisfied that they could only reasonably have been caused by unlawful acts, namely a series of high impact hits, smacks, strikes or similar blows which I am satisfied were assaults.
The next issue which arises is the timing of the infliction of these various injuries.
Timing of Injuries
As I have already observed, TW sustained a number of separate and distinct injuries. Apart from the injury to the left wrist, it was the opinion of Dr Tee that her injuries occurred ‘within a timeframe of days leading up to TW’s admission’. I will return to the timing of these other injuries in more detail in a moment.
Left Ulna Fracture
Dr Tee opined that this injury occurred in a ‘window’ of between two months and two to three weeks prior to TW’s admission to hospital, but that she was unable to be any more precise.
On the evidence of C and Y, TW did not show any signs of having a fractured wrist while she and T were living with them. The evidence is fairly vague but Y suggested that after her daughter moved out of their house, she went to live at North Haven for approximately four to five weeks. Thereafter, both C and Y said that the accused had resided at Smithfield for about two to three weeks prior to TW’s admission to hospital.
TW exhibited no signs of a wrist injury on the Sunday prior to her admission. I am therefore satisfied that the injury to her left wrist must have occurred whilst she was living at North Haven and during the initial period of her stay at North Haven. It is not possible to be any more precise.
I am satisfied that, at least for some period of time after the injury was sustained, there would have been obvious manifestations of it, in the form of TW exhibiting pain and restrictions of movement. It is of note that there was no record of any treatment for this fracture at any public hospital in the State. Although C and Y visited the North Haven house on perhaps two occasions and did not observe TW to have any signs of a wrist injury, it is unclear as to when precisely they visited. It is therefore unlikely that either visited North Haven and/or saw TW within days and perhaps weeks of the fracture occurring.
The Other Injuries
C, Y and J all visited the Smithfield house on the Sunday prior to TW’s admission to hospital. All of them were there for an extended period of time and reported TW to have behaved like a normal, happy and healthy child. I am therefore satisfied that these other injuries, which I have found caused serious harm to TW, must have occurred between the Sunday afternoon and Friday afternoon when C and Y took TW to hospital.
A number of the witnesses gave evidence with respect to TW exhibiting ‘gastro-like’ symptoms in the days leading up to her admission. In her evidence, J said that she visited the accused at their home on Thursday around lunchtime. She said however, that prior to that Thursday (i.e. ‘earlier in the week’) she spoke to her son who told her that TW wasn’t well, had eaten McDonalds and had gastro-like symptoms. She said that H had told her that ‘as the week progressed’ TW wasn’t eating a lot and wasn’t well as a result of which ‘she advised him to keep her fluids up’.
Prior to her visit on the Thursday, both C and Y said that T had told them on the Wednesday that TW was sick, had been put in the bath by H and had slipped in the bath. As a result, T had to go home in a hurry.
J said that when she saw TW on Thursday at lunchtime she observed her to be weak, lethargic and tired. While she was there TW woke up and vomited. She noticed that she had a bruise to the side of her face, which both accused ascribed to a slip in the bath. Finally, on that day she had an opportunity to see TW’s body, (front and back), undressed to the waist. Apart from the aforementioned bruise on her face she saw no other bruises on TW.
The next person to see TW was Dr Radisic who made a note of multiple bruises. He said he believed that she had more than one bruise on her face and multiple bruises to her trunk. He did not record the exact location of the bruising which, in any event, he ascribed to TW having had a series of falls. He based this opinion upon what T had told him. Dr Radisic also examined TW’s abdomen and found it to be soft and neither tender nor guarded. She had sunken eyes and was pale, symptoms generally consistent with dehydration. She did not appear to him to be in pain.
Against the background of this evidence it is not possible to exclude the possibility that her symptoms in the earlier part of the week were due to an infectious gastroenteritis. However, the evidence of Dr Tee (which I accept) is that bowel tests on her stools taken on 1 June did not show any infectious gastroenteritis. In Dr Tee’s opinion, there would have been a positive indication if such an infection had been present in the ‘few days leading up to her admission’. There being no such positive indication, I am satisfied that gastroenteritis was not the cause of any vomiting, diarrhoea or stomach pain after Dr Radisic had left on Thursday evening.
With respect to the bruising observed by Dr Radisic, it is difficult to reconcile the evidence of J and Dr Radisic. Whilst it is possible that the bruising to TW’s body did not become apparent to an observer until after J had seen her or that TW was subject to an assault, in between the time she was seen by J and Dr Radisic, I think that it is more likely that on this issue J is simply mistaken. At the time she visited, she was under the impression that TW was suffering from gastroenteritis and, as such, would not have been looking for signs consistent with any assault. I am satisfied that the bruises on TW’s face and body, as seen by Dr Radisic, were evident at the time J visited on Thursday and that J did not examine TW closely in the event that she saw her undressed. In this respect, I note that her observations were made as she was saying ‘goodbye’ and may have been more ‘cursory’ than ‘close’.
I am also satisfied that this bruising, apart from perhaps a single bruise to her face or her body, did not occur as a result of a slip in the bath, but rather, as I have said, resulted from a series of high impact hits, smacks, strikes or other similar assaults, as indicated by Dr Tee.
Dr Radisic did not observe any bruising to TW’s arms or legs. He did say that he ‘thinks’ that he was able to see most of TW’s limbs’. He saw no ‘protective bruising’ on her upper arms and he recorded that she had a passive range of movement in her limbs. I am therefore satisfied that the bruising to her arms and legs observed by Dr Tee must have occurred after Dr Radisic’s visit. I am equally satisfied that many of the bruises and abrasions to the face and trunk of TW were sustained prior to Dr Radisic attending and that such bruises and abrasions (apart from an isolated bruise to her face or body from a fall in the bath) were caused by assaults.
In the result, this leaves the timing of the serious internal injuries. I am satisfied that these injuries were sustained subsequent to Dr Radisic’s visit and prior to the visit of C and Y, namely during a period of approximately 24 hours. The evidence of J is that she spoke to her son on Friday morning, at which time she said ‘they thought’ that they might ring C and Y to have a look at her. In her record of interview, T said that on Thursday night TW had ‘really bad diarrhoea’ and had been sick and that at about 8:00 am Friday morning TW had a bath and wanted to swim in the bath but couldn’t because she had ‘a sore tummy’.
These observations suggest, and I find, that the injuries resulting in the fracture and bruising to the pubic bone, the mesentery tear, liver tears and renal damage (which Dr Tee stated could have resulted from one mechanism such as being swung into the toilet bowl) were sustained between Dr Radisic leaving and around 8:00 am the following morning.
I find that the other internal injuries (i.e. the wrist and rib fractures and bruising to the large bowel) happened after Dr Radisic had left and may also have occurred during this period. It is however not possible to be any more precise.
In summary, up to this point, in relation to count 1, I am satisfied that:
·TW suffered serious harm, first in the form of bruising and abrasions to the face, limbs and body, secondly, in the form of fractures to the rib, right wrist and pubic bone, and thirdly, in the form of mesentery and liver tears, renal damage and large bowel bruising;
·The serious harm was caused as a result of unlawful acts, namely more than one assault;
·Assaults causing multiple bruises and abrasions to her face and body occurred within days of her admission to hospital and prior to the visit of Dr Radisic;
·Other assaults occurred between the time TW was examined by Dr Radisic and the visit of C and Y;
·One such assault or series of assaults gave rise to the bruising of and fracture to the pubic bone, the torn mesentery, the renal damage and the liver lacerations;
·This assault or series of assaults occurred after the visit of Dr Radisic and prior to approximately 8:00 am when TW had a bath and complained of a sore tummy; and
·The other serious internal injuries and the balance of the bruising and abrasions may have occurred during this period or shortly thereafter.
I now turn to consider the other elements in count 1 as they relate to each accused.
T
A Duty of Care
As TW’s mother, T had duty of care to TW.
Awareness of Appreciation of Risk
Was she aware, or ought she to have been aware, that there was an appreciable risk that serious harm would be caused to TW by the unlawful acts?
There is no direct evidence as to who it was who assaulted TW so as to cause her serious harm.[32] There was no suggestion in the evidence (and in my view it is not possible) that persons other than the two accused assaulted TW. I therefore exclude the possibility that someone other than the accused inflicted these assaults on TW.
[32] In so saying, I acknowledge that T admitted smacking TW but not with force sufficient to constitute an assault.
In relation to T there is evidence that:
·She had smacked TW in the past in the presence of Y ‘if she was naughty’.[33]
[33] T66.
She also made admissions that:
·At least some of the bruising on one of TW’s arms emanated from her grabbing TW;[34]
·A bruise on TW’s lower back emanated from where she smacked her;[35]
·An injury (albeit only a bruise) to TW’s pelvis occurred as a result of the fact that she ‘swung her to the toilet to be sick’;[36]
·She didn’t want to take TW to the hospital because of the bruising.[37]
[34] T109.
[35] T109.
[36] T109, also T40.
[37] T110, also T34.
Some of these admissions are significant for what they do not say as much as for what they say. They disclose an awareness, on her part, of the fact that she had injured TW in a way which might indicate (to medical personnel at least) unlawful behaviour on her part and an intention to keep it a secret. They disclose an awareness on her part of possible explanations for, at least some, albeit not all, of the injuries. If, in giving these explanations, she was deliberately understating the actual level of force she used, they go a long way towards establishing the prosecution case against her on this element. My assessment of her demeanour and answers during her record of interview is that she was attempting to downplay the level of force she had used. Moreover, there is no evidence that H actually used any force against TW. Finally, T expressly disavowed that H had ever disciplined TW in any way.
I infer from the evidence of others that T lacked much of the usual maternal bond and was in the habit of physically disciplining this very young child. The explanation that she was able to offer for how such an unusual injury occurred, namely the bruising to TW’s pubis (which is likely to have been the same mechanism which fractured her pubic bone), points strongly towards a conclusion that she was the person who caused not only that bruising but also the fracture to that bone, the mesentery tear, renal damage and liver lacerations.
She also offered explanations for some of the other bruising, which Dr Tee opined would have required ‘multiple high force impacts’.
Having considered all the evidence, I am satisfied that T was the person who assaulted TW and that she did so with sufficient force to cause the internal injuries sustained by T. I am satisfied that the injuries occurred as a result of a number of high impact forceful blows delivered against TW by T. Specifically, I am satisfied that as a result of T’s assaults TW sustained the fractures to her rib, right wrist and pubic bone and the injuries to her mesentery, renal artery, large bowel and liver and the extensive bruising and abrasions to her face, limbs and trunk.
I am finally satisfied that the level of force she used was such that she was aware, or ought to have been aware, that there was an appreciable risk that serious harm would be caused to TW by her assaults.
Failure to take Steps to Protect TW from Harm
In view of my findings that T engaged in the assaults which caused serious harm to TW, and that she was aware, or ought to have been aware at that time, of the appreciable risk that serious harm would be caused to TW, it was incumbent upon her to take steps to obtain appropriate medical attention for TW.
It is not possible to say precisely when the last of the injuries constituting the serious harm to TW actually occurred. In my opinion, it was likely to have been sometime on Friday morning at the latest.
The evidence of Dr Tee makes it clear that by Friday TW was seriously ill. The findings at surgery would suggest that she was, by the early hours of Saturday morning (absent medical intervention) within days, perhaps even hours, of dying.
It follows, in my view, and I find, that it was incumbent upon T, to take steps to obtain appropriate medical treatment after the blows leading to the bruising, observed by Dr Radisic, were sustained and at the latest immediately after the internal injuries occurred, which at least with respect to, inter alia, the mesentery tear and fractured pubic bone, was before 8:00 am on Friday. I am satisfied that apart from calling Dr Radisic, whose advice she rejected, T took no steps to obtain appropriate medical assistance for TW. I reject the suggestion that a subsequent call to her parents satisfied the requirement to take steps to protect TW from harm. The call to C expressed concern for TW but amounted to nothing more than a request for him to come around and ‘have a look at her’.[38] Furthermore, C was only ever told that TW had been sick, vomiting and experiencing diarrhoea. There was no mention (of any kind) of TW coming into contact with a toilet bowl, let alone being swung into it or otherwise assaulted.
[38] T33.
The silence, secrecy, misleading statements and inaction of T, had the result that C and Y were proposing to take TW to their house rather than to hospital. In a somewhat perverse twist of fate, it was the fortuitous deterioration in TW’s condition (resulting in her passing out) rather than any intervention by T which may have saved her life.
I am satisfied that T failed to take steps which she could reasonably be expected to have taken to protect TW from harm.
Failure Warranting Criminal Penalty
I am satisfied that T’s misleading conduct and inaction were very serious and that, in the result, a criminal penalty is warranted.
H
A Duty of Care
Section 14(3) declares that a person has a duty of care to a victim if the person is a guardian of the victim or has assumed responsibility for the victim’s care. The fact that the word ‘guardian’ is juxtaposed with the word ‘parent’ in subs 14(3) suggests something more formal was intended than a mere de facto carer. In my view, H was not a guardian.
The next issue is whether, after commencing a relationship with T, H had assumed responsibility for TW’s care.
The evidence on this question suggests that he did. He clearly ‘looked after her’ when T was not present. J viewed his role as that of the ‘father’ in the relationship. T described H as like a ‘father-figure’ to TW. Finally H spoke about her in terms, such as ‘she’s my little girl’, which are suggestive of some assumed responsibility.
I am therefore satisfied that he had a duty of care for TW within the meaning of s 14.
Awareness of Appreciation of Risk
Was he aware, or ought he to have been aware, that there was an appreciable risk that serious harm would be caused to TW by the unlawful acts?
As I have already observed, there is no direct evidence as to who assaulted TW. I am however, satisfied that T engaged in the unlawful acts which caused serious harm to TW. The question remains as to whether there is any evidence to support the assertion that H also engaged in any of the unlawful acts causing serious harm to TW.
H first came into regular contact with TW when T brought her to the house at North Haven, which I am satisfied was approximately two months before her admission to hospital. The likelihood is that the fracture of TW’s left wrist occurred during this period. There is no evidence to suggest that any act on H’s part caused that injury.
However, it is quite impossible, in my view, for him to have been unaware of the pain, restrictions of movement and ‘favouring’ of the injured arm that this would have caused to such a young girl.
The evidence discloses that no hospital treatment was sought for this injury. Neither of TW’s grandparents nor J spoke of seeing any bandaging or plaster evident on TW. I am satisfied that no medical treatment was sought for her and that H must have been at least privy to the decision not to seek such treatment. Even if this injury occurred accidentally, it suggests, at the very least, an indifference on his part, as to the need to seek treatment for TW.
Prior to TW sustaining the serious internal injuries, on the evidence of Dr Radisic, which I accept, TW had sustained multiple bruises to various parts of her face and body. There is no evidence to support an assertion that H engaged in the unlawful acts which gave rise to this bruising. It may be that while in his care on Wednesday TW sustained a bruise to her face or body, but it is impossible to say that this occurred other than accidentally.
Prior to her admission to hospital TW sustained further bruises to her limbs and probably also to her face and trunk. The preponderance of evidence favours the conclusion that it was T who engaged in the acts which led to these bruises. She admitted in her record of interview to smacking TW generally and specifically to smacking her on the back causing a bruise shown in one of the photographs. She also admitted to causing some of her recent bruising on an arm by grabbing her and to the pubic area by pushing her to the toilet. She also said that H did not smack TW and none of the other witnesses ever saw him smack her. Finally, there is no evidence to support an assertion that H engaged in any unlawful acts which gave rise to the serious internal injuries.
In all the circumstances, I am unable to find that H engaged in any unlawful acts resulting in TW being injured prior to her admission to hospital.
However, in his record of interview, H told the police that:
·Every kid gets a smack;
·This little girl never ever cries;
·She does not feel pain;
·If she gets a smack on her hand or on her bum or on her back she never cries;
·I’ve never smacked her;
·[T] has smacked her on her hands, on her lower back, on her leg;
·We never ever intentionally hurt her.
These answers suggest that he was well aware of the fact that TW had been smacked in the past and that there was nothing unusual about it.
H also told the police that TW had bruises on her arm from T ‘grabbing her arm’. This answer suggests that he was aware of a degree of force being used against TW, sufficient to bruise her. His repeated responses that ‘she bruises really easily’ were disingenuous.
I am satisfied that in the week leading up to her admission, but prior to the doctor’s visit, he was aware that TW was being treated in a manner and with a degree of force sufficient to cause serious harm, in the form of bruising and abrasions, to TW. I am also satisfied that the effects of these injuries, in the form of pain and discomfort in such a small child, would have been obvious to H.
As a result, I am satisfied that prior to the doctor’s visit on Thursday, H was aware or ought to have been aware that T had been mistreating TW in a way calculated to cause extensive bruising to her body. I am also satisfied that he had every reason to assume that this treatment would continue. I am satisfied, in these circumstances, that he ought to have been aware that there was an appreciable risk that serious harm would be caused by T’s unlawful treatment of TW.
I am also satisfied that H ought to have been aware that serious harm would be caused to TW by the assaults which led to the serious internal injuries being sustained by TW.
I am satisfied that by 8:00 am on Friday, at least, the injuries resulting in a torn mesentery and a fractured pubic bone had occurred.
The manifestations of such injuries (in the form of a tender stomach, difficulty in walking, extreme pain and vomiting to name but a few) must have been apparent to H.
The exacerbation of her symptoms and deterioration in her condition must also have been apparent to H, and against the background of T’s mistreatment prior to that point, H ought to have been even more aware of a now even greater risk that serious harm would be caused to TW by T’s unlawful treatment of her.
Failure to take Steps to Protect TW from Harm
The results of the treatment ‘meted out’ to TW initially in the form of ‘smacking’, namely the bruising seen by Dr Radisic, would have been obvious to H and was treatment from which he had a duty to protect her.
I am satisfied that one step required of H was to alert responsible authorities as to T’s behaviour. There is no evidence to suggest that he ever contemplated such steps. His answers to police suggest that, in his view, there was nothing wrong with this type of treatment, even at a level which could cause bruising because, to use his words, this vulnerable child ‘bruises very easily’.
Another step would have been to take TW to hospital in accordance with the recommendation of Dr Radisic, a step which is likely to have prevented the serious internal injuries which later occurred.
He was also aware that TW had sustained bruising to her pubic area. Dr Tee’s evidence is that this bruising is likely to have occurred at the same time as the fracture to that bone and that one explanation for that injury is a high impact collision with the toilet bowl. In his interview with police H offered an answer in relation to that bruise which suggests some understanding of how it was caused. It is obvious that an injury such as this would have caused significant pain with associated obvious discomfort.
H must have either seen the injury occur or otherwise become aware of it. Regardless, he could not have been unaware of a young girl in obvious pain and discomfort from this and the other internal injuries she suffered. The combined effect of these injuries demanded immediate medical intervention. It is inconceivable to me that a person who had a duty of care for TW could fail to take steps to seek immediate medical treatment for her.
It was submitted by Mr Mead that there was no evidence to suggest that H was in the house at the time TW sustained any of these injuries, and/or that he was aware that TW was being subjected to such treatment.
The evidence suggests that H was present on the Wednesday when looking after TW, on the Thursday when talking to J and later when she visited, when Dr Radisic attended and when C and Y visited. In short, he was in the house throughout the important parts of the week. I am satisfied that H was present when at least some of the assaults took place. Even if he was not, I find it equally inconceivable that being there before and after the assaults he could have been unaware of the pain, discomfort and suffering which TW would have been exhibiting and of the consequent need to obtain medical attention for her.
In contrast to this reasonable and otherwise obvious expectation, the evidence suggests that apart from consulting his mother and ringing a ‘helpline’, H did nothing with respect to accessing necessary and ultimately urgent medical treatment for TW. In short, I find that H failed to take steps that he could reasonably have been expected to have taken to protect TW from harm.
Failure Warranting Criminal Penalty
In view of the fact that the unlawful acts were such as to cause TW obvious pain and discomfort and serious harm, his failure to take such steps warrants a criminal penalty.
Count 2
Count 2 is charged in the alternative. In view of my findings in relation to count 1, it is, strictly speaking, unnecessary to consider this count. In the event that I have erred in relation to count 1, I will briefly consider count 2.
I have, in considering this charge, had regard to the decision of the Court of Criminal Appeal in R v Staker.[39]
[39] [2011] SASCFC 87.
The elements which the prosecution must prove beyond reasonable doubt are those identified earlier. In view of my findings and conclusions in relation to count 1, it is unnecessary to rehearse them in detail.
An Omission
The omission alleged is a failure to obtain proper medical attention for TW.
I am satisfied, for reasons already articulated, that each accused omitted to obtain proper medical attention for TW in the form of medical treatment in a hospital or elsewhere. The omission crystallised from the time Dr Radisic advised that TW be taken to hospital immediately or, at the very latest, after the internal injuries were inflicted between the time when Dr Radisic left and approximately 8:00 am on Friday.
Duty of Care
For the reasons articulated, each accused had a duty of care to obtain proper medical treatment for TW.
Lawful Excuse
Neither accused had a lawful excuse for the omission.
Omission likely to Cause Serious Harm to TW
For the reasons already articulated, at least after the serious internal injuries were inflicted, an omission to obtain appropriate medical treatment was likely to cause serious harm to TW.
Knowledge That Omission likely to Cause Serious Harm
For the reasons articulated, T knew, having inflicted the injuries, that any omission to obtain treatment was likely to cause serious harm to TW.
In the case of H, even if he did not witness the unlawful acts he must have known, given the obvious pain and discomfort which TW would have exhibited, that an omission to obtain medical treatment for TW was likely to cause her serious harm.
Intention to Cause Serious Harm or Reckless Indifference
For the reasons articulated, I am satisfied that T was recklessly indifferent as to whether her omissions to obtain medical treatment would cause such harm to TW.
For the reasons articulated, I am satisfied that H was recklessly indifferent as to whether his omission to obtain medical treatment would cause such harm to TW.
Verdicts
Verdicts on count 1:
I find T guilty.
I find H guilty.In view of my verdicts in relation to count 1, it is unnecessary to enter verdicts on count 2. However, if it had been necessary, I would have found both T and H guilty on count 2.