Regina v Bilton

[2000] NSWSC 923

CITATION:	Regina v Bilton [2000] NSWSC 923
FILE NUMBER(S):	SC 70079/99
HEARING DATE(S):	04/09/00, 05/09/00, 06/09/00, 07/09/00, 11/09/00
JUDGMENT DATE:	11 September 2000
PARTIES :	Crown Paul William Bilton
JUDGMENT OF:	Bell J at 1

COUNSEL :	N Harrison - Crown G Cusack, QC - Accused
SOLICITORS:	SE O'Connor - Crown Budd & Piper - Accused
LEGISLATION CITED:	Criminal Procedure Act 1986
CASES CITED:	R v Moffatt [2000] NSWCCA 174 Royall v The Queen (1990) 172 CLR 378 Wilson v The Queen (1992) 174 CLR 313 @ 334
DECISION:	Verdict of guilty of manslaughter entered.

THE SUPREME COURT
OF NEW SOUTH WALES

CRIMINAL DIVISION

BELL J

Monday, 11 September 2000

70079/99 - REGINA v Paul William BILTON

JUDGMENT

1 HER HONOUR: Paul William Bilton was arraigned before me on 5 September 2000 on an indictment which charged him that on 25 February 1998 at Chinderah in the State of New South Wales he did feloniously slay Corey Jessel. In the alternative he was charged that on that date and place he did assault Corey Jessel. He entered a plea of not guilty to the count charging him with manslaughter and guilty to the alternative count charging him with assault. The Crown did not accept this plea in full discharge of the indictment and accordingly the matter proceeded to trial. On 4 September 2000 the accused had elected, pursuant to s16(1) of the Criminal Procedure Act 1986, for trial by judge alone and the Crown consented to the same. The matter proceeded before me without a jury.
2    The deceased Corey Jessel was an infant aged two years, he having been born on 5 January 1996.
3    The area of factual dispute was relatively confined. By consent a number of statements were tendered. Oral evidence was given by Cheryl Jessel, the mother of the deceased. There was short oral evidence from Senior Constable Peter Wilson and Detective Senior Constable Ian Hutchinson. Neither of the latter two witnesses were cross-examined.
4    Two electronically recorded interviews between Detective Hutchinson and the accused, the first dated 26 February 1998 and the second dated 19 March 1998, were tendered without objection.
5    The Crown led evidence from two forensic pathologists, Dr Lawrence and Dr Duflou. Dr Collins, forensic pathologist, was called in the accused's case. It will be necessary to return to the medical evidence in some detail in due course.
6    The accused was aged 29 at the date of the incident. He was living at the Hacienda Caravan Park, Chinderah. He was involved in a romantic relationship with Cheryl Jessel, who was also a resident of the caravan park. Ms Jessel lived in one caravan with Corey, the accused occupied a separate van just across the road from hers.
7    The accused told police that he had been involved in the relationship with Cheryl Jessel for about 12 months prior to 1998. Ms Jessel had been living at the caravan park for about four or five months, but he had known her prior to this when she was living at Chinderah Lakes.
8    Corey died sometime a little after 9pm on the evening of 25 February 1998. He had been at home at the caravan park with his mother during the course of the day. She gave him breakfast around 7.30 or 8am. After breakfast Corey vomited. Thereafter he spent the morning playing on a little plastic toy bike outside the caravan. At around 12 o'clock or 12.30 Corey ate his lunch which consisted of a vegemite sandwich and some Milo. Again, he vomited after this meal. Ms Jessel said of this episode, "He was a little bit sick but he was better after that". During the course of the afternoon Corey had his usual nap which lasted around half an hour to an hour.
9    Ms Jessel was asked what Corey had done after waking from his afternoon sleep. She said, "Sometimes we watched television that day or go for a walk or go to the park with him". When asked which of these they had done that afternoon Ms Jessel said "Done all of them". Having regard to her earlier answer I was left with the impression that Ms Jessel did not have a clear recall of the afternoon activities. However, I took it from her response that there was nothing noteworthy about the afternoon. Corey's vomiting attacks following breakfast and lunch do not appear to have led to any departure from the family's routine.
10    Corey was given dinner at about 5 o'clock or 5.30. He ate sausages, potatoes, and vegetables. In her evidence Ms Jessel described Corey as being fine after his evening meal. She said he did not vomit on this occasion.
11    Later that evening Ms Jessel was watching "Blue Heelers" on television. Corey was lying on the double bed. Ms Jessel roused Corey and took him out to see if the accused had returned from touch football. The two walked to just outside the caravan park. In due course the accused turned up and Ms Jessel and Corey walked with him to his van. He gave Corey a piece of bread. Corey eat the bread and did not vomit.
12    The accused asked Cheryl to take Corey to bed. She took him back to their van. She removed his shoes and socks and jumper and lay him on the double bed. He was crying. Ms Jessel stayed in the bedroom for a little while patting him on the head to put him to sleep, then she returned to the living area of the van and continued watching "Blue Heelers".
13    The double bed on which Ms Jessel and Corey slept was located at the southern end of the van. There was a partition between the bedroom area and the living area. A curtain could be pulled across the doorway. Ms Jessel pulled the curtain across so that the light from the living area would not disturb Corey. The curtain did not fully cover the opening. There were gaps at either end. She was able to see into the bedroom from her position as she watched television.
14    The accused came over to Ms Jessel's van. It appears that Corey was still crying. The accused called out to him through the window above the bed, "Bloody hell, go to sleep". He then walked into the van and went straight to the bedroom.
15    The account given by the accused in the course of his two electronically recorded interviews differs in some respects from the evidence of Ms Jessel concerning what took place whilst he was in the bedroom section of the caravan with Corey. I will return to this. For present purposes it is sufficient to note that on the accused's account he walked into the bedroom and punched Corey in the chest with his right fist. Shortly after this he shook the child. It was apparent that Corey was in distress. He was placed on the floor in the living area of the van and the accused left the van to raise the alarm. He went to a nearby caravan where he spoke to Janette Ford and her partner Robert Waldron to ask if they had a telephone. They did not, and the accused left to find a public telephone.
16    Mr Waldron went to the Jessel van and commenced administering CPR to Corey. He observed that Corey was blue in the face, neck, stomach, and arms. He was unable to feel a pulse, and he noted that the child did not appear to be breathing at all. His eyes were open but they did not look normal or clear. As he breathed into Corey's mouth he could hear a gurgling sound as though there was fluid in the lungs. When he pressed on the chest fluid came out of the child's mouth and nostrils. Mr Waldron continued with CPR until the ambulance arrived. He estimated this would have been an interval of about three to four minutes. At no time during the course of this procedure did the child respond. It was Mr Waldron's opinion that the child was already dead.
17    At 9.08pm Diane Kelly, a booking clerk employed by the New South Wales Ambulance Service took a call from a public phone box. The caller identified himself as Paul Bilton. He reported "Site 80. It's a little two year boy. He has fallen over and there is something wrong with him. He won't - He's just breathing funny".
18    Ambulance Officers Hutchinson and Potts arrived at Hacienda Caravan Park at 9.15pm. Officer Hutchinson described a male person (who it is common ground was the accused) telling him "He's fallen from his bed onto this toy. It's hit him in the chest".
19    The ambulance officers lay Corey on a concrete slab adjacent to the caravan and placed defibrillation electrodes on him. This equipment gives a reading of the electrical activity of the heart. There was no heart beat.
20    Ambulance Officer Hutchinson's opinion was that Corey was already dead when he first saw them.
21    The child was transported to the Tweed Heads Hospital Accident and Emergency Section where life was certified extinct.
22    In the period following the realisation that Corey was suffering from some significant injury, the accused fixed upon a plan to say that Corey had fallen out of bed. In his interview with police, he said that he had given such an account to Cheryl. He pointed out that Cheryl did not know that he had hit Corey.
23    Two uniformed police officers attended at the scene. The accused and Ms Jessel were conveyed to the Tweed Heads Hospital in a police car with one of the officers. At the hospital Detective Hutchinson spoke briefly with Ms Jessel to obtain particulars as to Corey's date of birth, name, and address. Thereafter he spoke with the accused.
24    The accused accompanied Detectives Hutchinson and Thurbon to the caravan park. He agreed to speak with them further about the matter at the Tweed Heads Police Station. He was interviewed in the early hours of the following morning.
25    In the course of that interview he agreed that he had made up the story about Corey falling out of bed. Prior to the commencement of the interview he had told police that he had struck Corey. The account he gave in his first interview was as follows:

"He was crying and, um, Cheryl took him home, laid him down and he kept on crying, so I went over there and said to her, is he crying? and she said, yes, and I went over there and I hit him".

26    The accused went on to say that he had struck Corey in the chest using his right fist. After that he left the Jessel van, went back to his own van, and then he returned to check Corey. He returned within a couple of seconds and saw that Corey was gasping for air. In the first interview he described events in this way:

"I went out and went back home and I come back and I come back over to check him to see if he was all right and he was gasping for air, so I took him out in the lounge room. Then I went over to a friend's place to see if they had a phone and they didn't have one, and then I went to the ambulance"
.

27    In the course of the first interview the accused described Corey as whingeing. He had hit him out of frustration. He had not meant to hit the child as hard as he did.
28    It is to be noted that in the account given during the first interview the accused made no reference to shaking the child with a view to seeing if he was all right, or for any other reason.
29    The accused was not under the influence of alcohol at the time he struck Corey. He had consumed one middy of VB at the Cudgen Leagues Club after the game of touch football.
30    Following the completion of the first interview on 26 February the accused was charged and taken into custody. He had no contact with Cheryl Jessel in the period between leaving the Tweed Heads Hospital and the first record of interview.
31    Cheryl Jessel was also interviewed on 26 February 1998, and that interview was recorded.
32    On 19 March 1998 Detective Hutchinson conducted a further interview with the accused at the Grafton Police Station. This was done with a view to clarifying events in the light of the autopsy examination. As I have noted, no objection was taken to the admission of this interview.
33    One area of conflict in the evidence relates to the number of occasions on which the accused shook Corey and to the circumstances in which that shaking took place.
34    Cheryl Jessel gave evidence that she had been able to see the accused in the bedroom section of the caravan with Corey. In the gaps between the partition and the curtain she had been able to see a little bit of Corey's body and Paul's body too. She could see Corey's legs. Corey was lying down. Paul was sitting on the bed with his legs off the bed. She saw Paul shaking Corey. Paul was sitting on the bed while he was doing this. "He got Corey up and shaked him underneath. He put his hand under his arm and shaked him".
35    Ms Jessel demonstrated how the accused had shaken Corey. She indicated that he had placed his hands under the child's armpits. She described the shaking as hard shaking. She said that it had gone on for between five and seven minutes. During this time she said that Corey was crying "Mum". She said that she had asked Paul to stop. She thought she had asked him to stop on two occasions. Paul did stop and went back to his place.
36    After the accused left the caravan Ms Jessel went to see if Corey was all right. She said, "Corey was laying there asleep. Looked like asleep to me". He was not moving or making any sounds. She saw white stuff coming out off his mouth. She screamed out to the accused, and the accused came running over. She said it was between 15 to 20 minutes from the time that the accused left the van after shaking Corey to the time he returned.
37    Ms Jessel was asked what the accused had done when he came back into the caravan. She said, "He opened the door and came straight to Corey. Picked him up. Shaked him". She went on to say of this shaking that it was "Not hard. Just to check if he was awake". She was asked how long this second episode of shaking had taken and she said, "just three minutes". This second episode of shaking by the accused occurred in the bedroom section of the caravan. Ms Jessel went on to say, "I took Corey off Paul. I put him straight on the floor". She said that when the accused was shaking Corey on the second occasion he was sitting down with his legs off the bed.
38    Ms Jessel was also reinterviewed on 19 March 1998. Prior to this second interview Detective Hutchinson spoke with her and told her that the medical evidence suggested that Corey had been shaken hard. During the course of the interview which followed it appears that Ms Jessel, for the first time, offered the account that she had seen the accused shaking Corey "real hard".
39    The accused in his second record of interview was asked:

"Q. Can you tell me if at any stage during the evening when Corey died did you shake him at all?
A. The only time was when he was sitting on, when he sat him on my lap.
Q. Right, now when was that?
A. That was when I came back in the room when he was gasping for air. I sat him on my lap and shaked him".

40    The accused described the sequence of events in these terms:

"We went to my place and I gave Corey something to eat, a piece of bread. Then they went home, then I went back over there. Corey was crying. I walked into his bedroom, punched him in the chest, standing up as he was laying down, then I went back home, then I came back a couple of seconds later and I seen him there gasping for air and then I put him on my lap and shook him and his head was going around and around and then we took him out and put him on the lounge, on the lounge room floor, and then I went to a bloke's place to see if he had a phone to ring the ambulance".

41    The accused told the police in the course of the second interview that he remembered the contents of his first interview. He agreed that he had not made reference to shaking Corey on that occasion.
42    There was some malfunction with the ERISP equipment during the conduct of the second interview and no video recording was made. The accused was closely questioned concerning the manner he had shaken Corey that night. He demonstrated on at least one occasion what it was that he had done. Detective Hutchinson was not able to recall, after this interval of time, how the accused had demonstrated the shaking of Corey.
43    The accused's verbal description of the shaking was in these terms:

" Q. And did he do anything when you shook him?
A. No, he was just gasping for air and his head was turning around.

Q. Right, can you demonstrate again for me how you shook him?
A . It was going like that with his arms.

Q. Right, how many times would you have gone like that, can you say?
A. I can't remember really, but I went, Corey, are you all right? Corey. I was going like that.

…

Q. When you said his head was going around when you were doing that, was it a normal action of a head going around, or did it look like there might have been something wrong with his neck?
A. Just like he was dazed, like he was just dazed.

Q. Just like he was dazed, was it?
A. Mmm, 'cos he was gasping for air and going.

Q. Was his eyes open at that time?
A. He went purple when we put him down on the floor, so I suppose.

Q. Was he saying anything?
A. No, he was just, just gasping for air."

44    A little further on the accused continued:

"I think it was just going round and round. It might have gone forwards, I don't know, it's just, I don't know. Might have went forwards, I can't remember."

45    The accused was not able to recall ever shaking Corey like this before.
46 In the course of her evidence Ms Jessel's responses exhibited a degree of slowness, and generally were consistent with a view that she may possess some mild degree of intellectual handicap. The Crown Prosecutor concurred in the view that it was appropriate for me to direct myself, in conformity with s.165(1)(c) of the Evidence Act 1995 that Ms Jessel's evidence may be unreliable on this account. I bear that injunction in mind.
47    My impression was that Ms Jessel was endeavouring to tell the truth and that her account was largely consistent with that which she had given the police in February 1998. It is true that in matters such as what Corey was given for dinner and the like there were discrepancies between her initial account and her evidence. However, overall, I was inclined to the view that she was a consistent historian. I also note that in a number of respects her account is corroborated by that given by the accused in his interviews.
48    However, bearing in mind the heavy burden of proof which rests on the Crown, and in the light of the considerations to which I have adverted, I approach the determination of the facts upon an acceptance of the version given by the accused in the course of his records of interview in any case where that account conflicts with the evidence of Ms Jessel. Upon this basis I accept that there was only one episode of shaking Corey. This occurred in the context of the accused returning to the caravan to check on Corey. The quality of the shaking was as the accused described in the course of his second interview.
49    The accused did not give evidence in the trial. I draw no inference adverse to him from this fact.
50    In the way the case was conducted the central issue for my determination was whether the Crown had discharged the onus of proving beyond reasonable doubt that Corey's death was caused by the action of the accused in punching him and/or shaking him in the way he described in the course of his interviews with the police.
51    Dr Lawrence conducted a post-mortem examination on the body of the deceased on the afternoon of 26 February 1998 at the Institute of Forensic Medicine, Glebe. In his opinion the direct cause of death was non-accidental injury. He did not identify any morbid or other significant conditions contributing to the death. Dr Lawrence prepared an interim autopsy report on that date and a provisional report on 2 March 1998. At that time certain further investigations remained to be carried out. The final autopsy report was dated 21 August 1998. It was signed by Dr Johan Duflou in Dr Lawrence's absence. Dr Lawrence was, at that time, overseas. Dr Duflou contributed some sections to the final report, including the results of tests carried out on the cervical cord.
52    Dr Duflou was in agreement with Dr Lawrence as to the cause of death being non-accidental injury. They concurred in the opinion that there appeared to be an upper cervical traumatic injury, possibly a spinal cord injury without radiological injury. Dr Lawrence explained that in children of this age the spinal cord is predominantly composed of cartilage as distinct from bone. Thus an injury to the spinal cord of a child may not leave obvious fractures. He said that:

"This entity is described in young children, most of whom have been shaken, where they get spinal injury without obvious x-ray changes".

53    Dr Lawrence observed a haemorrhage in the vicinity of the left vertebral artery. The artery itself appeared to be intact. The haemorrhage was, in Dr Lawrence's opinion, "a marker of trauma to the area".
54    Dr Lawrence and Dr Duflou expressed the opinion that:

"It appears that the cervical injury is the probable cause of death. The exact mechanism whereby the spinal cord injury was sustained is not apparent at post mortem examination, but possibilities include the following:

1) The consequence of a blow to the head causing secondary whiplash injuries to the neck,

2) shaking of the body with a mobile head insufficient to cause cerebral or retinal injury, but causing neck injury,

3) shaking of the body, with the head held fixed in one position, causing a distraction injury to the neck."

55    Dr Lawrence said a difficulty with this case was that while there is a very good history of a blow to the chest he did not identify what he described as "a lot of physical evidence of a blow to the chest". However, he observed that the autopsy findings were consistent with a blow to the chest.
56    Dr Lawrence gave evidence about a phenomenon described as commotio-cordis. This is a cause of death seen in cases where a person is struck hard in the chest, frequently by a cricket ball or base ball, and occasionally by a punch. The person almost immediately losses consciousness. The medical theory underlying commotio-cordis is that the impact to the vicinity of the heart causes the heart to stop beating. There may be a delay of 20 seconds or so before the lack of blood supply to the brain causes unconsciousness, but it usually occurs pretty quickly thereafter. Dr Lawrence was not able to exclude commotio-cordis as a mechanism of death in this case. He did not incline to it as a likely explanation:

"The time scale where the child is described as being alive, I mean, I think I have seen mentioned 15, 10, 15, 20 minutes, would seem to me, while a kid is still breathing and so forth, would seem to me too long for commotio-cordis to be a likely scenario".

57    It would seem that the doctor's reference to 10, 15, or, 20 minutes came from Ms Jessel's account of the interval of time between the accused shaking the child and the time when he returned to the caravan. I was not inclined to view Ms Jessel's estimates as to time with any confidence. Indeed, I considered her to have little grasp of the same. Dr Lawrence was not invited to express an opinion as to the likelihood or otherwise of commotio-cordis being the mechanism of death if he were to discount any suggestion that the child had been alive for as long as 20 minutes after the traumatic injury.
58    Turning to the three possible explanations for the cervical injury as set out in the autopsy report, Dr Lawrence noted that no history had been given of a blow to the head such as to cause a secondary whiplash injury to the neck. It was possible that the child could have suffered such a secondary whiplash injury as the result of a forceful blow to the chest. In cross-examination the doctor agreed that if one accepted that the child was lying on the bed when he was struck in the chest it was unlikely that he would sustain a whiplash style injury. On this view it was possible that he might sustain a forward flexion injury of sufficient severity to occasion the traumatic injury to the neck. As I understood Dr Lawrence the latter was a mere possibility. He was not able to say with any confidence that forward flexion of the neck would produce such an injury.
59    The second possible mechanism producing a spinal cord injury, namely shaking the body with a mobile head, assumes that the child's body is held and shaken whilst the head moves backwards and forwards, or rotates to some degree. This is consistent with the description given both by the accused and Cheryl Jessel as to the manner in which the accused shook Corey.
60    Dr Lawrence was asked:

"Q. If that were the case what would you expect to find normally?
A. Well, if the kid was shaken that vigorously I would expect to see the normal signs of a shaken baby, which are subdural haemorrhage, retinal haemorrhage, haemorrhage around the back of the optic nerve, and I did not observe those in this particular case.

Q. Would it make a difference whether the child's head was moving backwards and forwards with the shaking or whether the head was rotating side to side or around, if I can use that?
A. Theoretically, the type of motion is supposed to make a difference, but I don't know that it would make a dramatic difference in this particular instance".

61    As I understand Dr Lawrence's evidence, in the light of the absence of any account of a blow to the head, such as to cause a whiplash injury, and having regard to the absence of cerebral or retinal injury, the more likely cause of the cervical injury was the third scenario, namely, a shaking of the body with the head held fixed in one position. Dr Lawrence explained that where cervical injury has been described in the absence of head injuries such has often been the scenario. Post-mortem examination revealed the presence of two recent bruises at the back of the child's head. By recent I understood Dr Lawrence to be referring to injuries sustained within 24 hours of death. These bruises were consistent with being fingertip bruises. They were consistent with the child's head being held in a fixed position during the incident of shaking. However, there is no evidence to establish that the child was at any stage held in this fashion. Dr Lawrence indicated that fingertip bruising was only one of a number of possible explanations for the appearance of the bruises at the back of the head.
62    Dr Lawrence and Dr Duflou reported that:

"From the autopsy alone it cannot be stated with any degree of certainty which of the above, (referring to the three scenarios I have outlined) or other scenarios is the more likely in causing the injuries seen."

63    Dr Duflou carried out certain additional testing on the upper cervical cord. The technique he used, Beta Amyloid Precursor Protein staining (“Beta APP”) revealed a number of small areas of positive staining in the region of swelling of the cord. Those results suggest that there is damage to the nerve fibres and that the damage has prevented the transport of impulses and various chemicals within the nerves. The cause of damage to the cord may be trauma itself, in the sense of direct trauma to the cord, and stretching of the cord. The results of the Beta APP test led Dr Duflou to the view that there was probably some damage to the spinal cord itself. He said that one of the reasons for this may have been a shaking injury to the child.
64    It is to be noted that the use of the Beta APP test to detect spinal cord injury in children is in the experimental stage. Dr Duflou emphasised that his tentative conclusions were just that. I understood Dr Duflou to be saying no more than that such additional tests as he conducted were consistent with cervical injury as the probable cause of death.
65    In summary, neither Dr Lawrence nor Dr Duflou were able to identify the mechanism causing Corey's death. However, both were of the opinion that Corey died as a result of non-accidental injury.
66    As I have noted Dr Collins was called to give evidence on behalf of the accused. Dr Collins is a forensic pathologist whose lengthy experience in the field is detailed in Ex 1. He was asked for his opinion as to the cause of death. He said:

"I think, basically, that it is supremely difficult to be dogmatic as to what the cause of death is in this matter. If one looks at the post mortem examination report there are two distinct areas of significant pathology, one being in relation to the upper cervical spinal cord and its coverings and, secondly, in relation to gastric material which is in the lungs. Now, in my view, although the area of damage to the cervical cord is obvious and significant it need not necessarily have produced death. Whereas, if an individual has the gastric material in the lungs, as identified in this case, then that would be an acceptable cause of death of its own right. Finally, I think it is difficult, or it is unusual, to see a cause of death given as non-accidental injury. I am not sure that one can deduce that from the post-mortem examination report, particularly when there are those areas of pathology that are present as in this case".

67    Dr Collins was cross-examined concerning inhalation of vomit as a possible cause of death:

"Q. In Drs Lawrence and Duflou's evidence they say they have never experienced, that they have never seen a child of normal health inhale gastric contents unless there was some lowered level of consciousness?
A. Yes.
Q. Do you agree with that?
A. I think in the broad sense of that explanation that is so, that one would expect that an individual's coughing reflex would be such that it would prevent inhalation. Now, that doesn't mean to say that that can not occur, and all of us pathologists would have had the experience where a case has been where someone has vomited up some food at the back of their throat and a piece has lodged in the airway and caused what is called the cafe coronary. I am not saying that this is a true cafe coronary here, but it only takes a piece of foreign body, and in this case gastric material, some of which can be entirely or supremely irritant to produce a laryngeal spasm and the whole cycle goes on with further vomiting and further inhalation in what otherwise might be a normal person. So whilst I agree basically with what they're saying, it is certainly a reasonable explanation or a sound pathological basis for somebody to inhale fluid".

68    Dr Lawrence rejected vomiting as a possible cause of accidental death in this case. He put it this way:

"I would not regard it as likely at all, that this child has just vomited and choked on his own vomit. He would not need - something else would need to occur for an average child to die in that way".

69    In the course of his cross-examination he expanded on this:

"In a conscious child with nothing else happening, I would not expect them to vomit and die as a consequence of that. I think it is a possibility if the child had a depressed level of consciousness or if they had been struck a hard blow in the chest and were gasping for breath, involuntarily gasping for breath at the time. I think it's possible to override the natural mechanism to protect the upper airway, but I would not expect a kid with just some gastroenteritis to die as a consequence of vomiting and inhaling their vomit."

70    As I understand the medical evidence it is not possible to determine whether the inhalation of gastric contents occurred before death, as part of the process of the child dying, or after death during the course of attempted resuscitation. Each of those three scenarios is open.
71    However, Dr Lawrence was emphatic that in the absence of any event causing a reduction in level of consciousness, or possibly a forceful blow to the child causing him to gasp for breath and to inhale vomitus, the ordinary mechanism protecting the upper airway would have prevented the child accidentally inhaling gastric contents.
72    Dr Duflou also rejected accidental inhalation of gastric contents as a mechanism of death in this case. He explained:

"A. As in a normal child as soon as there is the commencement of vomiting with inhalation, there is a very rapid coughing and vigorous attempt at removing the gastric contents from the airway. The amount present here today, I do not think could be classified as a normal event as such.
Q. What do you classify it as then, if it is not a normal event?
A. Well, there is a number of circumstances in which this can happen. I mean, the first is that, as part of the process of dying certainly inhalation of vomit is very, very common. We see this all the time. Resuscitation, where not performed expertly certainly does that as well. There is, I suppose, the possibility that the blow in the chest and/or abdomen could in some way have caused vomiting. That is a possibility. I'm not sure. But in the presence of this very much occurring as a condition roundabout the time of death, and many other circumstances, I am not too sure that you can say with any degree of certainty that a blow to the abdomen could have caused it. "

73    In the course of his cross-examination Dr Duflou observed that in 15 years or more of forensic pathology practice he was unable to recall a case of a two year old dying as the result of inhalation of vomitus in the absence of a very significant predisposing problem such as unconsciousness.
74    Generally, Dr Collins did not take issue with the expression of opinion by Drs Duflou and Lawrence that in an ordinary child the cough reflex would prevent the inhalation of vomit. He gave this evidence on the topic:

"Q. Doctor, the scenario we appear to have here is a blow to the chest and then very shortly thereafter the child was observed to be gasping for breath and bringing up vomitus?
A. Yes.
Q. Are you saying that latter aspect could be completely unrelated to the blow to the chest?
A. I am saying it depends on the time frame and how hard that blow was. If you say to me it was a significant blow to the chest and the child started to gasp immediately afterwards then your scenario is more likely. If it is a relatively light blow to the chest, and we have said there is no evidence of bruising to the chest in that region, as the time goes on then the cause, or causal relationship weakens."

75    Mr Cusack QC, who appears on behalf of the accused invited me to approach the matter upon the basis that the evidence disclosed an interval as long as 15 or 20 minutes between the occasion when the accused first assaulted Corey and the observation that Corey was gasping for air. On this view the possibility of a bout of vomiting unconnected with the blow was said to be a somewhat more likely scenario. Mr Cusack pointed to the evidence of Ms Cheryl Jessel. In the course of her evidence in chief the following exchange appears:

"Q. What did you see that made you yell out, or scream for Paul to come over?
A. Some white stuff coming out of his mouth and next I was screaming out to Paul and Paul came running over?
Q. How long was that after Paul had left the van until he came back again?
A. Around from 15 to 20 minutes.
Q. What were you doing during that time? You told us that when Paul left you were still watching a bit of television, right. Do you understand what I am saying?
A. Yes.
Q. You now say it was 15 to 20 minutes before Paul came back after you yelled for him. What were you doing in that 15 to 20 minutes?
A. I can't remember?
Q. When you went into the doorway of the bedroom to look at Corey how long did you stand there looking at him before you yelled out for Paul?
A. Just a minute.
Q. Now you say that when you yelled Paul came straight over, is that right?
A. Yes."

76    I have commented on Ms Jessel's reliability with respect to estimating time. I do not consider that I can place any reliance on the estimate of 15 to 20 minutes. I approach the matter by looking at what Ms Jessel said she did in the period following the accused leaving the van the first time. Ms Jessel said that she called out to the accused to stop when she saw him shaking Corey, thereafter he left the van, she went to see if Corey was all right. She observed Corey was not moving and that white stuff was coming out of his mouth. She then screamed out to the accused who immediately returned. This sequence of events fits with the timing described by the accused in the first and second records of interview. On both occasions he described the interval during which he was absent from Cheryl Jessel's caravan as a couple of seconds. I do not take this to be literally accurate but to convey it was a short interval. This very matter, namely, that it was a matter of seconds between the accused leaving the van and returning was put to Ms Jessel in the course of her cross-examination and accepted by her.
77    I conclude that it was a short interval, and I view Dr Collins' evidence concerning the possibility of an episode of vomiting wholly independent of the punch to the chest in the light of this finding.
78    I should note that having regard to the account given by the accused in his first record of interview I consider that the blow to the chest was a significant blow. The circumstances that it did not produce bruising is explained in the evidence of Dr Lawrence. I am satisfied that the child was gasping shortly after this blow.
79    Mr Cusack invited me to take into account the history Corey had been running a temperature and that he had vomited three times during the course of the day. These matters, in association with the evidence of Dr Collins, at the least so he contended, identified accidental death as a reasonably possible cause.
80    I propose to review the evidence concerning Corey's health on 25 February, prior to the assault upon him that evening.
81    The accused told the police, in the course of his first interview, that Corey had a cold the week before his death. In the course of the same interview he agreed that Corey was a healthy child.
82    It was Ms Jessel's evidence that Corey had vomited on two occasions on the day of his death. Once after breakfast and once after lunch. He had not vomited again thereafter. In the course of her cross-examination she was taken to answers she gave the police during the first record of interview. The Crown conceded that the transcript of that interview recorded the following exchange:

"Q. Getting back to yesterday, was Corey sick at all yesterday or?
A. Yes, yes, after his dinner he was chucking up, like milk and eggs and meat."

83    It also appears that in the course of that initial interview with the police Ms Jessel said that Corey had had his dinner around 6 o'clock. She had told the police that Corey had been sick about two minutes after dinner. In her evidence Ms Jessel did not agree that there had been three episodes of vomiting that day. It appears the account she gave police somewhat closer to the events was again of two episodes of vomiting. Significantly, the second of those episodes occurred after dinner. I consider it distinctly possible that Ms Jessel is confused as to the occasions on which Corey was sick during the course of 25 February, but accurate in recollecting that he vomited twice that day. However, in the light of her evidence at the trial that he vomited both after breakfast and lunch, and having regard to the circumstance that within hours of his death she recalled him vomiting after his evening meal. I approach the matter upon the basis that Corey vomited, for whatever reason, after each of the three meals he consumed that day. I accept that his evening meal may have been as late as 6pm.
84    Nonetheless, the evidence does not suggest that Corey showed any further sign of distress prior to the assault. He walked with his mother to the gate of the caravan park to wait for the accused. He went to the accused's van where he ate a slice of bread. This did not bring on another episode of vomiting. This visit took place sometime during the telecast of "Blue Heelers". That program commences at 8.30pm. Dr Lawrence did not observe dehydration or anything which suggested that Corey was suffering a severe bout of gastroenteritis.
85    In the period preceding the summons to the ambulance service it is admitted that the accused struck a forceful blow to Corey's chest. Shortly thereafter Corey was seen to be gasping for air. The accused then shook him such that his head was observed to be going round and round. I bear in mind Dr Duflou's evidence that in over 15 years in practice as a pathologist he has not encountered a case of an otherwise healthy child dying as the result of inhaling vomit.
86    I consider it fanciful to entertain as a reasonable possibility that within a short period of the blow to the chest and/or the episode of shaking that Corey coincidentally vomited and died accidentally as a consequence of inhaling the same.
87    I do not understand there to be any issue as between the pathologists but that the cervical injury was consistent with a shaking injury of some character. On the accused's account in the second interview it is conceivable that his actions in shaking Corey were carried out in a misguided attempt to revive the boy after the earlier punch. The alternative view is that shaking of the type described by him in the second interview constituted a further deliberate assault upon the child. It does not seem to me to be necessary to resolve this issue.
88    The Crown must establish beyond reasonable doubt that the accused's acts were a substantial cause of the death of the deceased. In R v Moffatt [2000] NSWCCA 174 Wood CJ at CL (in a judgment with which Foster AJA and Adams J agreed) in referring to the decision of the High Court in Royall v The Queen (1990) 172 CLR 378 observed:

“The formulation of the test to be applied was not stated by their Honours in identical terms. Brennan J said that the accused’s act or omission “must contribute significantly to the death of the victim (at 398)”. Deane and Dawson JJ said that it would be sufficient if the accused’s conduct “is a substantial or significant cause of death” (at 411). The “causal connection must be sufficiently substantial to enable responsibility for the crime to be attributed to the accused” (at 412). Toohey and Gaudron JJ said the jury will inevitably concentrate its attention upon “whether the act of the accused substantially contributed to the death” (at 423. McHugh J said that the wrongful act must be “an operating cause and a substantial cause” (at 444).
What is clear is that the act of the appellant must have more than a coincidental or insignificant effect - rather it must provide a substantial contribution towards the death of the deceased. … Although there has been some debate as to whether the expression “significant” is interchangeable for “substantial” in this context, (see volume 24 Criminal Law Journal April 2000 at 73), I am content to accept for the present purpose the latter”. (paras 70-71).

89    It was the Crown case that the accused's act in punching Corey in the chest was both unlawful and dangerous. Mr Cusack did not seek to contend to the contrary and I so find. Punching the child in the chest constituted an assault and as such was unlawful. An act is relevantly dangerous if the circumstances are such that a reasonable person in the position of the accused would have realised that he was exposing the child to an appreciable risk of serious injury.
90    Once it is accepted that Corey's death was brought about as the result of the blow to the chest, or as the result of being shaken by the accused, or a combination of both of them, it does not seem to me to bear on the accused's liability to conviction for manslaughter as to whether the act of shaking was carried out for the purpose of attempting to revive Corey or by way of a separate assault. Whatever the mechanism of death, be it commotio-cordis, inhalation of gastric contents following a blow to the chest, or cervical cord injury as the result of shaking, or a combination of one or more of these events, the death followed in a causal sense from the initial blow to the chest. Again, Mr Cusack did not seek to contend to the contrary.
91    I am satisfied beyond reasonable doubt that the accused punched Corey Jessel in the chest and that shortly thereafter he shook Corey. I find that the punch to the chest was both unlawful and dangerous in that an ordinary person in the position of the accused would have realised that by punching a two year old child in this fashion he was exposing him to an appreciable risk of serious harm. I am satisfied beyond reasonable doubt either that the punch was a substantial cause of Corey's death because it directly brought about the child's death, or because the distress occasioned to Corey by the blow led to the accused shaking him and that this event, by itself or in combination with the physical effects of the punch, caused death.
92    Alternatively, upon the view (i) that Corey's death was the result of the shaking, or (ii) that the shaking constituted a separate assault upon the child, and not a misguided attempt to revive him from the effects of the punch, I find that the shaking was an unlawful and dangerous act in the sense I have already explained.
93    Paul William Bilton I find you guilty of the second count charged in the indictment, namely, the manslaughter of Corey Jessel on 25 February 1998 at Chinderah.
94    I direct that a conviction be entered in accordance with my verdict.

Last Modified: 10/27/2000