R v Touch (No 2) - [2006] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TOUCH (No 2)
Criminal Trial by Judge Alone
[2006] SADC 100
Reasons for the Verdicts of His Honour Judge Rice
25 August 2006
CRIMINAL LAW
Manslaughter - trial by Judge alone - accused unfit to stand trial - consideration of the objective elements - accused alleged to have caused the death of her baby following two separate occasions of trauma and/or violent shaking - medical intervention necessary to prevent intracranial bleeding and death - death after insertion of an atrial shunt - consideration of whether the accused's actions were a substantial cause of death.
Held: objective elements of the offence are established - a finding to that effect is recorded - it is declared that the accused is liable to supervision.
Criminal Law Consolidation Act 1935 Part 8A, referred to.
R v Macaskill (No 2) 81 SASR 155; R v Pagett (1983) 76 CrimAppR 279 at 288; Royall v R (1990) 172 CLR 378 at 398; R v Bristow (1960) SASR 210; R v Jordan (1956) 40 CrimAppR 152; R v Smith [1959] 2 QB 35; R v Bingapore (1975) 11 SASR 469; R v Hallett [1969] SASR 141; R v Evans & Gardiner (No 2) [1976] VR 523; R v Wilson (1991-2) 174 CLR 313, considered.

R v TOUCH (No 2)
[2006] SADC 100

The accused is charged with two offences arising from the death of her daughter. The charges are as follows:-
First Count
Statement of Offence
Manslaughter. (Section 13 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ka Touch between the 29th day of November 2001 and the 17th day of February 2002 at Kilburn, unlawfully killed Melinda Jacsraimien Long.
Second Count
Statement of Offence
Assault Occasioning Actual Bodily Harm. (Section 40 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Ka Touch between the 29th day of November 2001 and the 17th day of February 2002 at Kilburn, assaulted Melinda Jacsraimien Long, a person under the age of 12 years thereby occasioning her actual bodily harm.
The accused elected for a trial without a jury.
Background to this trial
The conduct of the trial before me requires some explanation.
A trial upon these charges commenced before another Judge of this Court in June, 2004. That was also a trial without a jury. The accused was present for that trial. As mentioned, the main charge against her alleged that she unlawfully killed her daughter. As the evidence progressed, a question arose as to whether the accused had become “unfit” such that the trial should not continue. Psychiatric reports were obtained and evidence given before the trial Judge on her fitness to continue with the trial. After a consideration of that material, the trial Judge ruled that she was unfit to attend Court. An investigation was then undertaken for the purposes of Part 8A of the Criminal Law Consolidation Act 1935.
On 16 June, 2004 the trial Judge ruled that the accused was mentally unfit to stand trial pursuant to s 269H of the Criminal Law Consolidation Act. His Honour ruled as follows:-
I am persuaded on the balance of probabilities that the accused is unfit to be tried by reason of her mental processes, being so disordered or impaired, that she is unable to exercise her procedural rights and unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings of this trial which was under way the space of one and a half days before concern arose as to the fitness of the accused to stand trial.
On 18 June, 2004, an application was filed seeking an order that the proceedings be stayed on the basis that their continuation would amount to an abuse of process. That application was dealt with by me in a ruling published on 16 June, 2005 ([2005] SADC 65). That application was made on the basis that, because the accused was not even in a fit state to attend Court for a consideration of the objective facts or able to provide additional instructions, a stay should be granted. For the reasons detailed in the earlier decision, I refused the application (see paras 37-41).
A further application for a stay of proceedings was filed arising from fresh circumstances as follows.
One of the arguments proposed to be put on behalf of the accused was that the prosecution had not proved that the accused had caused the death of her daughter. It was proposed to be argued that death was caused by the neurosurgeon who inserted an atrial shunt into the cranial vault to drain away blood that was causing intra-cranial pressure. To that end it was proposed to cross-examine the neurosurgeon to show he was negligent or grossly negligent in his actions. Unfortunately, the neurosurgeon was himself suffering from a medical condition that prevented him from giving any evidence. It was submitted that being prevented from cross-examining for that purpose was so unfair as to render any trial unfair.
On 7 March, 2006 I ruled against that application. I accepted there would be prejudice to the accused because that particular line of cross-examination could not be pursued, but took the view that “...the prejudice to a fair trial is not of an order that would render the trial unfair such that it should be stayed.”
Procedure at trial
A trial of the objective facts commenced before me without a jury. The evidence for my consideration consisted of three parts. First, by consent, I received the evidence from the previous trial of the witnesses Lay Yim Peng (a friend of the accused), Phuoc Le Cong (a doctor from the medical practice at which the accused attended with her daughter), and Savorn Anna Sim (a Cambodian family support worker who visited the accused and her daughter on many occasions). Concerning Ms Sim, she had only given her examination‑in‑chief previously and was cross-examined before me.
Secondly, I heard the complete evidence of Hang Long (the father of the baby), Professor Blumbergs (who examined the brain of the deceased baby), Dr R. James (who conducted the post-mortem examination on the deceased baby) and Professor Byard (an expert in paediatric pathology).
Finally, I received various statements that are detailed in the evidence.
Prosecution case
The two charges against the accused are in the alternative, namely, if I am not satisfied beyond reasonable doubt that the objective facts necessary upon the charge of manslaughter are established against the accused, I would then move on to a consideration of the charge of assault occasioning actual bodily harm.
In short, the prosecution alleges that the accused caused injury to Melinda’s head, and therefore her brain, by blunt trauma or by significant shaking of her or both. That trauma, however it was caused, brought about chronic and acute subdural haemorrhages, that is, bleeding under the dura or cover of the brain. Those subdural haemorrhages led to the actual cause of death, namely, hypoxic‑ischaemic encephalopathy or a lack of oxygen to the brain.
Although it was conceded by the prosecution that the accused did not have the sole care of Melinda at all times, its case was that she caused the injuries because those who were also involved in her care denied, in evidence, causing any such injuries.
In part the prosecution relied upon an assertion that there were at least two episodes of trauma to Melinda at different times. On that basis, the argument is put that that renders it less likely that it was anyone else but the accused. In other words, what is the likelihood of two other people, on two separate occasions and independently of the accused, causing trauma to Melinda, especially when so few people had contact with Melinda.
Summary of the evidence
I commence by giving what I trust is an unvarnished summary of the facts and highlight the main issues.
The accused migrated from Cambodia to Australia in 1994. She is now aged 35 years. In about late 1999 or early 2000, she commenced a relationship with a man by the name of Hang Long (“Mr Long”). At this time, Mr Long was married and his relationship with the accused was not a stable one. On 29 October, 2000, the accused gave birth to a son, Jetlee, the father being Mr Long.
Although it is difficult to be precise about dates, from about August, 2001 to about December, 2001, Ms Peng lived with the accused. Ms Peng had known the accused for some years.
In August, 2001, Dr Ngo, the accused’s general practitioner, confirmed that the accused was pregnant. On 4 October, 2001, Melinda Long was born at the Women’s & Children’s Hospital (“WCH”). Melinda was born about two months premature and weighed 1470 grams at birth. She remained in hospital until 29 November, 2001.
On 5 and 9 October, 2001, routine cranial ultrasounds showed no abnormality, particularly no haemorrhage or ischaemia. A further cranial ultrasound study was performed on 14 November, 2001 and showed no abnormality. Various other tests were undertaken arising from the fact she was premature and was gaining weight only slowly.
Ms Sim visited the accused at home and later at the WCH. This is discussed in more detail below.
On 13 December, 2001, Dr Couper reviewed Melinda at the WCH. At that time Melinda was gaining weight appropriately “...and she seemed to be doing very well” (Dr Couper, p 2). Dr Couper again reviewed Melinda in outpatients on 31 January, 2002. She had gained only 100 grams in six weeks. Dr Couper was sufficiently concerned about her health that she was re-admitted.
Melinda was seen by various specialists and a variety of tests were performed on her. It was ascertained she had bilateral subdural haemorrhages. Further, a skeletal survey showed multiple bony fractures of varying age.
There were a number of subdural taps undertaken to aspirate the subdural bleeding. The subdural bleeding continued. The decision was made, probably by Dr Hanieh (the neurosurgeon who was unable to give evidence), to insert a subdural atrial shunt. If the aspirations had not been undertaken, Melinda was going to die because the bleeding did not stop. Subdural taps of that type are standard procedure and it was necessary in this case because of the chronic bleeding. The insertion of an atrial shunt was also standard procedure and was a means of having a permanent drain in place rather than undertaking needle aspirations.
After the insertion of the atrial shunt, Melinda initially appeared to be recovering in an appropriate manner. However, her condition deteriorated rapidly after that and, despite prolonged efforts to keep her alive, she died some hours later.
Broadly speaking, there are two main questions:-
1.There being no doubt on the evidence that Melinda sustained a number of injuries, how and by whom were those injuries caused?
There are subsidiary questions, namely, were the injuries all caused at the same time and, if not, on how many occasions, by the same person or different people?
2.Assuming the accused was factually responsible for injuries involving substantial trauma to, or shaking of, Melinda or both, did those injuries cause the death of Melinda?
Again, there are subsidiary questions, namely, were the effects of that trauma still operating at the time of death and did the medical intervention break the chain of causation?
Facts in more detail
A friend of the accused, Ms Peng, gave evidence that the accused arrived in Australia from Cambodia in about 1994. They met and became friends after that time. The accused gave birth to a son, Jetlee, on 29 October, 2000 and it was said that Mr Long was the father. As mentioned earlier, Mr Long was married at this time but his marriage was anything but stable and he lived with the accused at some times.
Ms Peng
Ms Peng and her husband moved into the accused’s house in Kilburn in August, 2001. Ms Peng and her husband were living with the accused when Melinda was born. As mentioned, Melinda was born on 4 October, 2001, about two months premature, and remained at the WCH until 29 November, 2001. Ms Peng and her husband moved out of the accused’s home in December, 2001. After Melinda came home from the hospital, and before they moved out, neither Ms Peng nor her husband looked after Melinda.
However, before Ms Peng and her husband moved out, Ms Peng saw Melinda with a bruise on her face and two small cuts on or near the ear. The accused claimed Jetlee hit Melinda with a bottle. Jetlee was unable to walk at that time.
Ms Peng noticed another injury to Melinda, a big bruise, on the front of the thigh, about five centimetres in size, but she was unable to say which leg. Ms Peng thought this was on a separate occasion to the marks on Melinda’s face. Concerning the bruise, the accused told Ms Peng that Jetlee hit Melinda because he was jealous.
Ms Peng also saw a bruise, about the size of a fingertip, on Melinda’s upper arm. Importantly, there was an occasion that Ms Peng observed when Melinda was crying loudly and the accused became upset. The accused picked up Melinda to stop her crying but then threw her hard back on to the bed from about eight or nine inches above the bed. The accused also shook Melinda by the shoulders while Melinda was on the bed. Ms Peng told the accused that she needed help because one baby would cry, then wake the other, and the stress of handling two was too much.
Ms Peng said Mr Long was there infrequently but there was one occasion when he looked after Melinda alone when the accused went to a wedding. In respect of that occasion, the accused told Ms Peng that she (the accused) needed to come home early because Mr Long could not handle the crying of Melinda. Mr Long denied she came home early or that he could not handle the crying.
At times the accused and Mr Long would argue because he was not prepared to visit for very long. When he was not there and Melinda was crying, the accused would be upset and blamed Melinda for him not being there.
Savorn Sim
The accused was visited by a lady named Savorn Sim, who was a Cambodian family support worker with the Wesley United Mission. Ms Sim communicated with the accused in their common language, Khmer. Ms Sim visited the accused before Melinda was born and later, after Melinda was born, at both the WCH and the accused’s home. Ms Sim assisted with interpreting at the hospital and government agencies and with the filling out of forms and translating the medical and feeding regime for Melinda.
It was clear from Ms Sim’s various visits to the accused that the accused was in dire need of emotional support. The accused had a boy aged about twelve months and then a premature, sick baby. The poor health of Melinda was not noted until early January, 2002. In fact, when Melinda was examined by Dr Couper at the WCH on 13 December, 2001 he was happy with her progress. Ms Sim said that the accused was very lonely and without family support, not getting enough sleep and seemed depressed.
Then, on 10 January, 2002, Ms Sim noted a small scratch on the nose, small bruises on the side of the ear, small dot bruises under the eye on the cheek plus bruises on the forearms and blue marks on the legs. The accused said to Ms Sim that the bruises were caused by Jetlee and in evidence Ms Sim said the blue marks were “Asian baby blue spots”. On this occasion Ms Sim took the baby home to give the accused a break. At her home she checked the bruises and they were not as severe as she first thought. Ms Sim said Melinda fed and slept well until she took her back in the afternoon of the following day. Apparently, Melinda had been vomiting a lot when in the accused’s care.
The next important notation of Ms Sim was on 7 February, 2002 when she learned that Melinda had been re-admitted to the WCH because she was not putting on weight. The accused had taken Melinda to WCH for an appointment and the doctors decided to re-admit her. That re-admission in fact took place on 31 January, 2002.
Ms Sim said that at no stage did she see the accused harm Melinda and, apart from very minor marks on the face of Melinda, there was nothing to cause her any concern.
I am satisfied that Melinda was not harmed at any time by Ms Sim or while Melinda was in her care.
Mr Long
Mr Long explained that he migrated to Australia in 1987. He speaks a little English and sometimes used the interpreter in evidence.
He married in 1988 and had two children. After the second child, Lisa, was born, Mr Long separated from his wife. He then met and commenced a relationship with the accused. He believes he is the father of both Jetlee and Melinda. From Mr Long’s evidence it was difficult to say where he was living at certain times. Sometimes he was back living with his wife and sometimes living with the accused. He certainly did not know with any precision. Any inconsistency on this topic with his statement to the police is not, in my view, of great significance. Nor is the number of times he visited Melinda when she was in hospital on the first occasion.
I do not consider that he was trying to give the police the impression he had nothing to do with Melinda. Having said that, the distinct impression I gained from him was that he was not a particularly attentive father to any of his four children.
In his evidence, Mr Long made no secret of the fact that he was left alone on occasions with both Jetlee and Melinda when the accused went shopping and that, on a separate occasion, he looked after them when the accused said she was going to a wedding. Mr Long, in his statement to the police, may have denied baby-sitting the children, including Melinda, but he readily admitted it in evidence. If he was deliberately telling a false story initially to distance himself from any injury to Melinda, then it is incongruous that he would in evidence expose himself to such an allegation. In my view, that is some indication that he is essentially a truthful witness.
Ms O’Connor, counsel for the accused, was particularly critical of Mr Long. The first is that he did not visit Melinda from the beginning of her second admission until her death, a period of about 18 days. There is no apparent explanation for that. The second is that he did not go to her funeral. As to the latter, Mr Long said he could not find time and his wife had taken the car away from him!
Before being able to come to any considered view about Mr Long, there are a number of aspects of his evidence that make him a potentially unreliable witness. I have already mentioned a number of matters referred to by Ms O’Connor.
I have already found that Ms Peng and Ms Sim did not cause any of the injuries to Melinda. From a practical point of view, that leaves Mr Long and the accused as potential culprits. Mr Long has an obvious motive to exculpate himself. In that situation, he “...was in that general class of witnesses about whom a warning should be given to avoid a miscarriage of justice” per Nyland J in R v Macaskill (No 2) 81 SASR 155 at para 17 (with whom Doyle CJ and Besanko J concurred). Although it may not be strictly necessary to do so (because this is a trial without a jury), I specifically warn myself of the need to very carefully consider the evidence of Mr Long. Bearing in mind my earlier findings, I would not be in a position to find the objective facts proved against the accused unless, having heeded the warning, I am satisfied that any injury to Melinda was caused by the accused and not Mr Long. If I am so satisfied, I would then move to a consideration of those objective facts.
I have considered the evidence of Mr Long and the various criticisms of his evidence made by Ms O’Connor in her written and oral submissions. I have not mentioned in these reasons all of those criticisms or conflicts with other evidence, but I have taken them all into account. Having considered all of those matters, I am satisfied he was not responsible for any injury to Melinda. I accept the substance of his evidence despite the matters of criticism.

I am, however, satisfied that the injuries sustained by Melinda were caused by the accused. I am obviously also satisfied that no other person injured Melinda. I am so satisfied without recourse to one approach to the evidence which the prosecution advocated, namely, that, because there were at least two episodes of trauma, that renders it less likely that it was anyone else but the accused (or less likely to be two culprits).
Nature and extent of injuries to Melinda
As mentioned already, the medical evidence is to the effect that there were at least two episodes of trauma to Melinda at separate times. More needs to be said about that evidence. However, before doing that, I deal with the evidence upon Melinda’s re-admission to hospital on 31 January, 2002.
As previously dealt with, Melinda was re-admitted because of a failure to thrive. She had gained only 100 grams in six weeks. When admitted, a nurse, Ms Heale, noted that Melinda’s head was out of proportion to her body. Her description of Melinda’s general appearance was “thin, scrawny and wasted”. She noted petiachiae like marks on the top of the scalp. She also observed two bruises on her head above the eyebrows, the size of a little finger, about half a centimetre in diameter. There was also a scab on the left side of her top lip.
During the week following her re-admission, Dr Couper noted that Melinda initially gained weight reasonably well with normal feeding, suggesting the major problem at home had been intake. She was, however, irritable to feed.
On 8 February, 2002 an ophthalmology referral conducted by Dr Casey showed evidence of multi-layered dot haemorrhages in the fundi suggestive of non-accidental injury.
A cranial ultrasound and CT head scan were performed on 9 February, 2002 which showed extensive bilateral haemorrhages. The bilateral subdural haematomas were recent and older haemorrhages (Dr Cain; Dr Donald).
Part of Dr Donald’s opinion relates to those intracranial abnormalities:
In relation to the intracranial abnormalities of bilateral subdural haematomas of differing ages and areas of older cerebral infarction. Firstly, the presence of widespread multi layered bilateral retinal haemorrhages detected on the 8/2/02 indicate that the more recent subdural haematomas were most likely due to inflicted head injury that occurred around the time of Melinda’s admission to hospital.
...
However, by carefully looking at the head circumference it seems reasonable to presume the episode of trauma occurred at a time not long before her admission on the 31/1/02. The accumulation of blood in the subdural space then continued over the first few days of her admission leading to the clinical evidence of raised inercranial pressure by Saturday the 9/2/02.
The older of the subdural haematomas is not able to be aged. Once again from analysing the head circumference it appears that it occurred some time after she was two months of age, but before she was four months of age. It is not possible to be any more accurate than this.
After the procedures on 9 February, 2002, subdural taps were performed with the aim of partially draining the subdural collections and therefore reducing the raised intracranial pressure. These taps were undertaken on 11, 13 and 14 February, 2002. On 16 February, 2002, a subdural space to right atrium shunt was inserted. As Dr Donald said:
This is a device in which one end of a length of tubing is inserted into the subdural collection (in the subdural space) and the other end into the right atrium of the heart. The shunt effectively keeps the subdural collection drained and therefore the intracranial pressure rises less.
This is a common procedure and was necessary in this case because of the chronic bleeding (Dr James TP131; Professor Blumbergs TP110, 123-125). If the intracranial bleeding continued, and the collection not drained, Melinda would inevitably have died (Dr James TP131; Professor Blumbergs TP118).
After insertion of the shunt on 16 February, 2002, there was a rapid post operative decline in Melinda’s condition. The deterioration was over about a thirty minute period at which time it was difficult to get a blood pressure reading. She was showing clinical signs of shock (Ms Beckmann; Dr Keeley). There were ongoing efforts to stabilise and improve Melinda’s condition. Dr Keeley concluded in this way:
On 17 February 2002, she had developed onset of hypotension in presence of adequate circulating volume. She appeared to have increased intra cranial pressure. Mr. HANIEH removed blood by needle (a subdural tap) and draining it. That cycle repeated itself. The blood pressure was continually dropping. There was recognition that something in the character of the shock had changed. There was pressure in the skull building up within the cranial vault. The blood pressure was unstable. There was a multi system organ failure. Adrenalin was given to keep the blood pressure up. Basically things began to worsen. Finally Cardiac arrest occurred with resuscitative measures not attempted. Death was recorded at 2230 hrs.
A skeletal survey was undertaken after Melinda’s death (as were bone scans even prior to death). It is reported on by Drs Donald, Cain, Sutherland and Morris. For convenience, I adopt Dr Donald’s summary:
A post mortem skeletal survey was done on the 18/2/02. This confirmed the presence of a healing fracture in the mid-shaft of the right femur; a healing fracture of the mid-shaft of the right humerus; a healing fracture of the mid-shaft of the left radius and probably the left ulna. From the appearance of callus in the three fractured areas it is likely that the fracture to the left radius and ulna occurred more recently than the fracture to the right femur and right humerus, with the femur fracture probably being the oldest. It is not possible to accurately date any of the fractures, but each of the fractures were at least three to four weeks of age.
In general, the bones on the skeletal survey looked somewhat osteopaenic (thin).
(I accept Dr Donald’s intended meaning referred to in Professor Byard’s evidence: TP163.)
Dr Donald also expresses this opinion:
Overall, it seems most likely that Melinda suffered at least two episodes of inflicted head injury associated with long bone fractures. The fractures may have occurred around the same time as the first episode of head injury.
Cause of Melinda’s death
A post mortem examination was performed by Dr James. In his report, Dr James attributes the cause of death to a lack of oxygen to the brain secondary to acute on chronic subdural haemorrhage. The clinical notes for Melinda’s rapid decline on 16 February, 2002 suggest severe blood loss may have been a contributing factor to her death.
Additionally, Dr James went on to discuss and report:
2.Assessment of the recent haemorrhage and hypoxic changes is complicated by the several neurosurgical interventions that were undertaken in the week prior to death, and by the coagulopathy that developed on the day before death. However, more chronic subdural haematoma was also present, of at least several weeks duration (See formal neuropathology report). This would have predated the surgical interventions and the coagulopathy. It is not the type of injury seen in an infant of age 4 months, who can neither crawl nor walk. It is not the type of inflicted head injury that another infant might cause while playing or fighting. Such bleeding in young children results from whiplash shaking syndrome or direct trauma to the head. The latter could be caused by blows to the head from punching, kicking or forceful throwing. Such trauma could also have caused the retinal haemorrhages.
3.A bone scan was performed two days prior to death (15/2/02). This reportedly showed increased uptake in the distal shaft of the right femur, midshaft of the right humerus, and the distal shaft of the left radius which were suggestive of fracture sites without significant hyperaemia to indicate that they were acute (see attached report). A post mortem skeletal survey performed on 18/2/02 reportedly showed the presence of healing fractures in the locations described above. In addition, old/healed fractures of the left 5-7th ribs laterally were identified on the skeletal survey (see attached report). Histological examination supported the presence of fractures at these sites. An infant aged 4 months is not mobile enough to accidentally sustain such injuries. The location of the limb fractures in the shafts of the long bones indicate that force was applied to the bones, by way of hitting, kicking, bending or twisting. Accurate dating of the fractures is not possible because of the differences in healing rate of different bones following injury. It is also unknown how the infant’s poor nutritional state may have influenced bone healing. However, radiological examination suggests that the fractures are of different ages. The nature of the fractures, their multiplicity, location in anatomically unrelated sites, and the seemingly different ages indicate that they were not accidental and likely did not result from one incident. A radiologist’s opinion would carry more weight than mine regarding the assessment of the skeletal injuries.
4.Pathological assessment was made difficult by the prolonged hospital admission during which a number of complicating events occurred, including multiple neurosurgical procedures, the development of a coagulopathy, and extensive resuscitation measures.
5.While it is difficult to assess the contribution of the neurosurgical interventions and coagulopathy in the more acute intracranial pathology, the presence of the intracranial haemorrhage of at least several weeks duration indicated that inflicted head injury had occurred at least several weeks before death. The skeletal fractures may or may not have occurred at the same time.
Professor Blumbergs examined Melinda’s brain microscopically. He made observations of the dura noting “...subdural haematomas of at least several weeks duration with evidence of more recent haemorrhage.” He could not age the subdural haematomas any more specifically. He observed evidence of recent haemorrhage into the older haematomas on both sides of the brain.
In his evidence he said he observed two injuries to the brain, maybe more. The injuries were of different ages and different severity (TP116). He expected there was one major trauma. There was a chronic lesion and an acute lesion (TP122).
Professor Blumbergs’ evidence also touched upon another aspect of the evidence. The evidence shows that Melinda was re-admitted on 31 January, 2002, yet she was not then showing any substantial health problems nor clinical signs of subdural haemorrhaging until 9 February, 2002. The question arises whether any injury she sustained before her re-admission could take time to become evident. Professor Blumbergs said this in the context of shaking a baby:
Q.If the child had been subject to one trauma which caused a massive injury to her brain, would you expect the child to have lost consciousness.
A.It’s a matter of degree. You see, when – just to take your example – shaking a baby, you might shake the head sufficient to damage the veins crossing the surface of the brain, the veins ooze blood and rather than bleeding very rapidly they gradually accumulate blood in the space, maybe over hours, days. And during that period the child might be appearing to be failing to thrive, not itself. When the accumulation of fluid has reached a critical level you will get a precipitous decline in the child’s state. If the bleeding is rapid you get a rapid decline. If the bleeding is very slow and oozing it may be prolonged. And you must remember that at any point in time the bleeding may actually cease of itself for a period of time and then again restart subsequently.
There was other evidence from him to that effect (TP122-123). Dr Donald also dealt with this topic in his report of 13 January, 2004 at question 2.
Returning to Dr James’ evidence, he was asked about the bone injuries. He said this (TP127 lines 19-23):
There are a number of aspects about the interpretation of the bone injuries. The number of fractures, the site of the fractures, the nature of the fractures and their ages indicate that an accidental causation appears at least unlikely.
Importantly, he said that “...collectively [the] fractures suggest a non-accidental causation” (TP127). Dr James also commented on the fact of the bone fractures and head injury (TP130):
I think it is the presence of the subdural haematoma, in conjunction with the multiple fractures as described, that allows an expression of non-accidental injury to be given with more confidence.
He thought physical trauma was the explanation for the combination of findings (TP135). Dr James confirmed the evidence of Professor Blumbergs that “...it is possible that some event prior to the admission on the 31st had allowed a subdural collection of blood which wasn’t apparently discovered until the first surgical operation on, I think, 9 February (TP133).
Dr James also gave evidence that related to a separate matter raised on behalf of the accused, namely, the question of causation. In short, it was argued that death was not “caused” by the accused but by the negligence of the surgeon who inserted the atrial shunt. I mention again that, for medical reasons, the surgeon did not give evidence and no statement from him was tendered. I leave for the moment the separate legal questions that arise where a surgical procedure is necessary or death will occur without it, but where death is said to have been caused by the negligence of the surgeon.
Dr James said that what was essentially a simple procedure would not have been expected to produce a great deal of operative haemorrhage in the scalp, neck and upper chest. However, there was much more bleeding than he would have expected. He did not think it was arterial bleeding. Importantly, Dr James did not know the source of the bleeding “...in that no obvious blood vessel could be seen to have been severed.” He suspected that it was not a large blood vessel because that would have been easily seen to be bleeding and readily rectified. He described such an event as “...a routine problem and easily addressed” (TP137).
Although a pathologist, he expressed the clinical opinion that if Melinda was suffering from a bleeding disorder that day, that was not going to help her capacity to stop bleeding after straightforward surgery. He said that if she was given the wrong blood that was very likely to contribute to the bleeding problem, that is, prevent coagulation. Such an explanation would account for the large amount of bleeding he observed post mortem.
Before going further, I expressly make the finding on the agreed statements that there is no evidence that Melinda was given blood of the wrong blood type. There is simply no factual basis for the suggestion. There is also no basis for the suggestion Melinda was given expired blood (Dr Keeley’s statement dated 6 May, 2004). In any event, the point was not pressed by Ms O’Connor (TP187).
Dr Keeley was the Director of Critical Care at the WCH at the time. His statement also deals with the topic of post operative bleeding. He says that he discussed with the surgeon the feasibility of exploration to control the bleeding but that the surgeon did not consider this a realistic option. Further, Dr Keeley and the surgeon conducted additional subdural tap procedures to relieve the intracranial pressure, but to no lasting effect.
Dr James said that the injuries were consistent with Melinda being forcefully gripped in the chest area and then shaken. He also said those injuries were consistent with the child’s arm being held against the body.
Finally, the prosecution called Professor Byard, Specialist Forensic and Paediatric Pathologist. Professor Byard agreed with Dr James as to the cause of death, that is, brain damage secondary to reduced oxygen and blood supply, secondary to acute on chronic bleeding under the covering of the brain. Professor Byard said the aspiration of blood was necessary because it would not stop and, if allowed to continue, would have resulted in her death (TP156).
He said the atrial shunt was necessary because the bleeding was continuing and not settling down spontaneously. That procedure was apparently uneventful and it is not a major procedure. He observed that apparently she was well in recovery for about 15-20 minutes, then declined quite rapidly, required resuscitation and her clinical course was progressively downhill (TP155-6). He was asked what may have caused that decline (TP157):
A.It is difficult, because we don’t have any anatomical findings from the autopsy. What I could say is it appears to be different from her previous clinical course with the previous history of slow bleeding and blood clot; it was an up and down course, but it wasn’t as rapid as this last episode, so I think something catastrophic has happened and it’s related to the surgery. The odd aspect of it is that she was well for a while, so she was stable and then suddenly declined, and I wonder whether there had been damage to one of the vessels inside her head and perhaps there’d been a blood clot over the top that had been dislodged and she had bled suddenly from that, but that is all conjecture.
He said you may not find the exact site of bleeding post mortem. As to the type of blood vessel, he said this (TP 157-8):
If it’s an artery, which has a high pressure inside, you tend to get pretty obvious bleeding if there’s a significant cut. If it’s a vein, where the blood pressure is much lower, you may just get seeping, and I wonder whether it was a vein or it may have been a sinus that was actually damaged so bleeding wasn’t obvious or there had been a blood clot over it which had been dislodged.
He thought that, if there was significant bleeding at the time of surgery, it would have been picked up (TP158). Later, he said he did not favour the severed artery (TP167). Yet later in his evidence, Professor Byard considered it was possible that a blood clot covered the shunt so that the shunt was actually coping with the bleeding but it became blocked and she deteriorated (TP169).
As to the possibility of a clot being dislodged during surgery (TP158):
A.This is purely conjecture but I wonder why she seemed to be stable and then suddenly deteriorated. I think people suggested perhaps there was ongoing bleeding that reached a critical point, but she did have a shunt in place which could have handled that, I would have thought. It seems to me something quite dramatic happened 15 or 20 minutes into the recovery time.
Then Professor Byard was asked these questions (TP158-9):
Q.From any of the entries in the hospital notes or the statements of the various medical witnesses are you able to discern what that may have been, what that major event may have been.
A.I think that it was Dr Keeley who wrote that there was uncontrollable intracranial bleeding, I don’t think he attempted to guess what it was.
Q.Are you able to do any better than that.
ANot really, no.
Q.I don’t mean that in a disparaging way, but is there any material before you that assists you in that regard.
A.No. there’s not.
In the end, the cause of that “major event” was a matter of conjecture.
As to the subdural bleeding, Professor Byard thought there were at least two episodes of trauma to Melinda prior to 31 January, 2002. He could not say whether the bone injuries occurred at the same time. He thought there were two, perhaps more, bone traumas (TP165). He said it was significant trauma (TP166).
When asked his opinion of the cause of the head injuries to Melinda, he said this (TP161):
A.I would – it’s often not possible to dissect out exactly what has happened, I think this case is like that. I think the amount of subdural haemorrhage is much more than you normally get with shaking, so there’s been some form of impact trauma, that doesn’t exclude the fact that you may have shaking as well. Certainly there were a number of rib fractures which you can often get with shaking, and we also have damage to the upper part of the spinal cord, which can occur with shaking.
He favoured blunt trauma ahead of shaking (TP162). Later, he said “...the shaking problem occurred, I think also impact occurred” (TP164). The degree of haemorrhage is not what you see from shaking (TP173).

Professor Byard was asked in cross-examination whether the atrial shunt procedure caused Melinda’s death. He answered (TP182):
I don’t know what happened. It is conjecture. What I do know is that she went in for an apparent routine procedure and then developed uncontrolled intracranial bleeding. The autopsy didn’t demonstrate any evidence of vessel damage. If I had a damaged vessel, then I could say “Yes, I believe this was the cause of death”, but I don’t, so I can infer there was a problem with surgery, but I can’t say definitely there was.
He deferred to the assessment of the surgeons involved that, after the operation, there was massive intracranial bleeding, the situation was not able to be salvaged (TP182-3).
Finally, Professor Byard was asked (TP186):
HIS HONOUR
Q.Do you favour a dislodged clot as being an explanation for the increased intracranial bleeding.
A.I think, to be honest, I really don’t know. I think what we do know is something happened. Could it be there was bleeding that reached a critical amount and then she deteriorated? I suppose that is possible. My feeling is something dramatic has happened because of the change in her condition, which is why I am hypothesising the clot, but I really don’t know.
Conclusion
This will be dealt with in two parts.
It is appropriate, first, to state my conclusions as to the means of injury to Melinda and, secondly, the actual cause of death. The legal aspect of causation is dealt with separately below.
There is no doubt in my mind that Melinda was subject to at least two significant acts of violent trauma at the hands of the accused. These took place before her re-admission on 31 January, 2002 and one of them was probably close to that time. As of that date, Melinda was close to four months old. It is difficult to be precise about exactly what happened. There are two separate areas of subdural bleeding that were caused either by a violent shaking or blunt trauma whereby there was no obvious external injury (for example, Melinda being thrown violently against a hard, rigid object).
The bony injuries suggest at least one episode of very forceful gripping on the left-hand side, possibly associated with shaking or an occasion of blunt trauma.
I am not in a position to identify precisely the circumstances leading up to those occasions when injuries were inflicted. However, my overall impression is that, whilst her actions were deliberate, they were not malicious in the sense of wanting to harm her baby. The baby was premature, there was illness and there were feeding and health problems. (I have taken into account the statement and evidence of Dr Le Cong.) The accused may have been suffering from some form of depression. Although she had some practical support, there is no doubt she was socially isolated, had difficulty with the language and a transient partner. For any number of reasons she was not coping. There were also the demands of her other young child.
I turn now to the actual cause of death. Dr James and Professor Byard are of one mind in this regard. The actual cause of death was brain damage caused by reduced oxygen and blood supply and those features were secondary to acute on chronic bleeding under the brain. In that situation, it is necessary to trace the events backwards.
The chronic subdural haemorrhage was such that it was necessary to reduce the intracranial pressure, initially by subdural taps (aspirations) and later by means of the atrial shunt. The latter was essential otherwise Melinda’s death was inevitable.
The procedure to insert the atrial shunt appears to have proceeded without any obvious problems. There was no evidence at the post mortem of a severed artery although, it should be said, that would be difficult to discover in a dead person. However, I would readily conclude that, if the surgeon had inadvertently severed an artery, that would be readily apparent and easily remedied. There is no evidence of such an event taking place during the procedure itself. In this regard, I have taken into account the fact that the neurosurgeon was not able to be called and cross-examined.
It is known that about 20-30 minutes after the procedure her condition deteriorated rapidly. As Professor Byard explained, the cause of that is a matter of conjecture, although he favours the shunt becoming blocked. I am not in a position to say what caused that deterioration, although it is a straightforward procedure from which you would not expect a medical problem.
Causation as a matter of law
It is necessary to say something of the general principles concerning causation at common law and then narrow the focus of its application to the area of a possible medical error during necessary surgical intervention to save the life of the alleged victim.
The first point to be made is that the question of causation is a factual matter to be decided by the trier of facts applying their/his/her common sense to the proved facts using the appropriate test.
Secondly, it is well recognised that there may be one or perhaps a number of causes that bring about the death of a person. Recognition of that is to be found in the requirement that the accused’s conduct was “a” cause of death. That requirement is linked to the requirement of a cause of substance, such that the accused’s conduct must be “a substantial cause of death”. Such a requirement has been described by saying that the accused’s conduct must contribute significantly to the death of the victim: R v Pagett (1983) 76 CrimAppR 279 at 288. To the extent there is a difference between “a substantial cause” and acts which “contribute significantly”, I adopt and apply the former.
Further, the conduct of the accused does not need to be the direct or immediate cause of death. In those cases when “...the death is not caused directly by the conduct of the accused but by something done by...a third person in response to the conduct of the accused, there is a question whether the chain of causation is broken” (see Royall v R (1990) 172 CLR 378, Brennan J at p 398).
Before going further, it should be observed that there are many cases where the conduct of the accused remains an operative and substantial cause of death but that there is also another intervening event which is also a substantial cause of death. If there is one or perhaps more other “substantial causes of death”, the accused remains criminally responsible if his or her acts remain “a substantial cause”. This is no more than the application of the direction that there can be any number of substantial causes.
I turn now to the question of causation in the context of medical treatment (negligent or otherwise) or lack of treatment.
One of the earliest cases in this State is R v Bristow (1960) SASR 210 where a woman was charged with the murder of a man by arsenical poisoning. When the victim was initially taken to hospital, he was treated as suffering from alcoholism and not treated for arsenical poisoning. He died six days later and the cause of death was arsenical poisoning. The Court (Mayo, Ross and Brazell JJ) held that the chain of causation was not broken “...by the mere failure to take medical steps which might have arrested the toxic effects of a poison feloniously administered” (p 217).
During the course of the judgment reference was made to R v Jordan (1956) 40 CrimAppR 152 where the wounds, inflicted by the accused were healing. However, during the ongoing treatment, the victim was given a drug to which he was intolerant and, combined with other wrong treatment, led to his death. The Court of Criminal Appeal quashed the conviction because, at the time of death, the wound was almost healed and the administration of the drug, to which he was known to be allergic, was treatment that was described as “palpably wrong” and “not normal”.
By way of contrast, in R v Smith [1959] 2 QB 35, a case well-known in the area of voluntariness of confessional material, the accused’s conviction for murder was upheld in these circumstances. The accused was charged with murder following a barrack-room fight. He twice used a bayonet to stab a soldier of another regiment, once in the arm and once in the back. The one in the back, unknown to anybody, had pierced the lung and caused haemorrhage. A fellow soldier took him to the medical reception area but, in so doing, dropped the victim on two separate occasions. In addition, when actually given medical treatment it “...was thoroughly bad and might well have affected his chances of recovery” (p 42). In upholding the accused’s conviction, Lord Parker CJ distinguished Jordan’s case saying it “...was a very particular case depending upon its exact facts.” In Smith’s case he took the view that the original wounds were still an operative cause of death (p 44).
In another case from this State, R v Bingapore (1975) 11 SASR 469, the victim initially attended hospital after being bashed on the head. However, against medical advice, he left the hospital only to be returned six hours later in a serious condition. The next day he died from brain damage caused by a subdural haemorrhage, which in its turn was caused by the earlier head injury. It was argued that leaving the hospital against advice broke the chain of causation. The Court said this (at p 480):
The act of the appellant causing injuries from which the victim dies does not cease to be a causative act because the victim thereafter acts to his detriment or because some third party is negligent. The case of Reg, v. Jordan (1956) 40 Cr.App.R. 152 to which we were referred, is clearly distinguishable, for there the victim did not die from injuries caused by the act of the prisoner, but from some other cause for which the prisoner could not be held responsible.
Reference was also made to the earlier South Australian case of R v Hallett [1969] SASR 141 which, although it is distinguishable on its facts, provided this general statement of the law (p 149):
The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.
One of the important cases in the area of negligent medical treatment and homicide is R v Evans & Gardiner (No 2) [1976] VR 523. In that case the victim was stabbed in the stomach by the two accused. The victim underwent successful bowel surgery and seemingly recovered fully. Eleven months later he died as a result of a stricture in the small bowel at the site of the earlier operation. Such a stricture is not an uncommon post operative complication. The two accused were convicted of manslaughter. The Court approved this passage from Smith’s case; it was dealing with a contention “...that if something happened which impeded the chance of the deceased’s recovery, then the death did not result from the wound.” The passage is as follows (p 529):
The court is quite unable to accept that contention. It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.
Finally, the Court in Evans & Gardiner said this (p 534):
In these circumstances we agree with the view of the learned trial Judge expressed in his report to this Court that there was a case to go to the jury. The failure of the medical practitioners to diagnose correctly the victim’s condition, however inept or unskilful, was not the cause of death. It was the blockage of the bowel which caused death and the real question for the jury was whether that blockage was due to the stabbing. There was plenty of medical evidence to support such a finding, if the jury chose to accept it.
Jordan’s case has been distinguished and confined to its narrow, exact facts. Smith’s case has been readily embraced as correctly stating the law. It was cited without adverse comment in Hallett’s case (p 150) and followed in Bristow (p 217).
Not surprisingly, the facts of this case are different from those discussed above and others to which the authorities refer. Here Melinda’s death was inevitable if there was no surgical intervention of any type. The subdural taps did not prevent the recurrence of bleeding but relieved the intracranial pressure. The atrial shunt was a common procedure, used here because the bleeding was chronic and it acted as an ongoing drain of the blood from within the cranial vault.
There is no evidence that the procedure was performed negligently or incompetently. If an artery had been severed during this procedure it is reasonable to expect that that would have been appreciated and rectified. If veins had been severed it would not necessarily have been noticed.
Those things having been said, it seems reasonable to infer from the evidence that something did go wrong either during the operation or post operatively. Melinda did suffer a major event that led to her rapid decline. However, I cannot say what that event was but there is no evidence to find negligence during the atrial shunt procedure or that anything done then or later was palpably wrong.
I also note that the surgeon who performed the atrial shunt procedure considered further intervention but decided that nothing further could be done to save Melinda. I do not understand that approach to be under challenge.
I have no doubt, applying the authorities (except Jordan’s case), that the conduct of the accused was a substantial and operating cause of the death of Melinda. In the immediate sense, the surgeon’s actions may have led to Melinda’s death, but that did not make them an intervening cause such that the accused’s actions were inoperative. The accused’s actions were substantial and operative at the time of death and caused the death.
Conclusion
The primary charge being one of manslaughter, the appropriate authority to apply, limited to the objective facts, is R v Wilson (1991-2) 174 CLR 313. I find the accused’s actions were both unlawful and dangerous. In my view, the circumstances as I have found them to be were such that a reasonable person in the accused’s position would have realised that she was exposing Melinda to an appreciable risk of serious injury.
I find the objective facts of manslaughter proved against the accused. In that situation there is no need to say anything further about the alternative charge of assault occasioning actual bodily harm.