Reyne (a pseudonym) v R

[2022] NSWCCA 201

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Reyne (a pseudonym) v R [2022] NSWCCA 201

Hearing dates:

25 July 2022

Date of orders:

19 September 2022

Decision date:

19 September 2022

Before:

Beech-Jones CJ at CL at [1];
Dhanji J at [9];
Yehia J at [141].

Decision:

(1)   Leave to appeal is granted.

(2)   The appeal is allowed.

(3) The conviction of the applicant in the District Court on 6 November 2020 for the offence contrary to s 35(2) of the Crimes Act 1900 (NSW) of recklessly causing grievous bodily harm is quashed.

(4)   In lieu thereof, enter a verdict of acquittal on that offence.

Catchwords:

CRIME – appeals – appeal against conviction – recklessly causing grievous bodily harm – trial by judge alone – skull fracture – circumstantial case – unreasonable verdict – expert evidence – whether injuries caused in the essential period – whether injury amounted to grievous bodily harm – where trial judge had no relevant advantage – quintessential jury question – relevance of age of victim – relevance of future risk of harm – appeal allowed – conviction quashed – verdict of acquittal

WORDS AND PHRASES – “grievous bodily harm”

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes Act 1900 (ACT), Dictionary

Crimes Act 1900 (NSW), ss 4, 35(2)

Crimes Act 1958 (Vic), s 15

Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)

Criminal Code 1899 (Qld), s 1

Criminal Code 1913 (WA), s 1

Criminal Code 1924 (Tas), s 1

Criminal Code 1983 (NT), s 1

Criminal Law Consolidation Act 1935 (SA), s 21

Criminal Procedure Act 1986 (NSW), s 133(1)

Evidence Act 1995 (NSW), s 38

Cases Cited:

AA v McDevitt [2017] ACTSC 342

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833

Chambers v Jobling (1986) 7 NSWLR 1

Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728

Director of Public Prosecutions v Smith [1961] AC 290

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Frew v R [2022] NSWCCA 165

Hone v State of Western Australia [2007] WASCA 283

Hyam v Director of Public Prosecutions [1974] UKHL 2; [1975] AC 55

JH v R [2021] NSWCCA 324

Joyce v Yeomans [1981] 1 WLR 549; [1981] 2 All ER 21

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Pell v The Queen [2019] VSCA 186

R v Bird-Walton (A pseudonym) [2020] NSWDC 730

R v Bollom [2003] EWCA Crim 2846; [2004] 2 Cr App R 50

R v Golding [2014] EWCA Crim 889

R v Hall (1988) 36 A Crim R 368

R v Klamo (2008) 18 VR 644; [2008] VSCA 75

R v Perks (1986) 41 SASR 335; (1986) 20 A Crim R 201

R v RIK [2004] NSWCCA 282

R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unrep)

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

ST v R [2022] NSWCCA 169

Swan v R [2016] NSWCCA 79

TheQueen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Ukropina v R [2016] NSWCCA 277

Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65

Wick v R [2017] NSWCCA 244

Texts Cited:

Macquarie Dictionary, online ed, September 2022

Category:

Principal judgment

Parties:

Julia Reyne (Applicant)
Rex (Respondent)

Representation:

Counsel:
M Avenell SC (Applicant)
E Nicholson (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/122078

Publication restriction:

Statutory non-publication order with respect to the identity of the complainant and her brother.
Non-publication order with respect to the identity of the applicant, complainant and the complainant’s brother.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

R v Bird-Walton (A pseudonym) [2020] NSWDC 730

Date of Decision:

6 November 2020

Before:

Grant DCJ

File Number(s):

2019/122078

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 23 to 28 September 2020, the applicant, Julia Reyne, stood trial by judge alone in the Albury District Court on one count of recklessly causing grievous bodily harm to Ella, the applicant’s 13-month-old foster daughter, contrary to s 35(2) of the Crimes Act 1900 (NSW). The trial judge found the applicant guilty of the offence on 6 November 2020 and sentenced the applicant on 21 January 2021 to a term of imprisonment of 2 years, to be served by way of an intensive correction order commencing on 21 January 2021 and expiring on 20 January 2023.

The Crown case at closing was that the applicant assaulted Ella sometime between about 10:00am and 7:00-8:00pm on 28 October 2018, causing a fracture to the parietal skull and bilateral corneal abrasions to Ella’s eyes, injuries which the Crown said amounted to grievous bodily harm. The Crown case relied on an accumulation of evidence, including the applicant’s sole care of Ella during the relevant period, medical evidence that a bruise behind Ella’s ear was likely to be related to the fracture and that her reported lethargy was also potentially linked to injury, the absence of observable injury prior to 10:00am on 28 October 2018, the applicant’s failure to bond with Ella, evidence that the applicant was upset and frustrated with Ella during the relevant period, the fact that the number, location and probable cause of the injuries were inconsistent with accident, together with the absence of any innocent explanation for the injuries sustained by Ella. The trial judge found that only the skull fracture amounted to grievous bodily harm, but accepted the applicant was responsible for this injury. Accordingly, the applicant was found guilty of the offence on the basis of the skull fracture.

The applicant sought leave to appeal against her conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the grounds that the verdict is unreasonable and cannot be supported having regard to the evidence, as:

1. it was not proved, beyond reasonable doubt, that Ella suffered the skull fracture within the essential time-period, viz between about 10:00am and 7:00-8:00pm on 28 October 2018; and

2. the skull fracture suffered by Ella was not grievous bodily harm.

The Court held (per Dhanji J, Beech-Jones CJ at CL and Yehia J agreeing), allowing the appeal:

As to ground 1, per Dhanji J (Beech-Jones CJ at CL agreeing at [2]-[3], Yehia J agreeing at [141]):

3. At [49]-[55]: For the purposes of an appeal against conviction brought pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) and determined pursuant to s 6, a judge’s finding of guilt is treated as if it were a jury’s finding. The test to be applied in determining an unreasonable verdict ground in such an appeal is the same as the test applied with a jury verdict, although the advantage that a trial judge might have had over a court of criminal appeal will vary.

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 applied.

4. At [56]-[98]: The medical evidence, such as the lack of observable injuries prior to 28 October 2018, and evidence of the applicant’s difficulties in her relationship with Ella established that Ella suffered non-accidental injuries while in the sole care of the applicant on 28 October. However, this did not establish that the skull fracture was occasioned in the essential timeframe. The combination of Ella’s lethargy on 28 October and the location of the bruise behind Ella’s left ear, which Dr Garside opined was likely caused by bleeding from the parietal skull fracture, made it highly suspicious that the skull fracture was occasioned in the essential timeframe. However, the evidence that some injuries were occasioned before the essential timeframe, in conjunction with Dr Garside’s inability to provide a firm opinion as to the age of the skull fracture, are such that the possibility that the skull fracture occurred at some time prior to 28 October cannot be excluded.

As to ground 2, per Dhanji J (Beech-Jones CJ at CL agreeing at [4]-[6], Yehia J agreeing at [141], [146]):

5. At [99]-[113]: A determination as to whether a given injury is, or is not, grievous bodily harm is, in the context of a trial by jury, within the province of the jury. This Court, when reviewing such a determination, is to determine whether it was “open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”. This does not mean open as a matter of law but open in the sense used in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The nature of this Court’s review of such a determination for the purposes of the unreasonableness ground is the same regardless of whether the determination is that of a jury or a judge alone.

M v The Queen (1994) 181 CLR 487; [1994] HCA 63 applied; Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; JH v R [2021] NSWCCA 324; R v RIK [2004] NSWCCA 282; Swan v R [2016] NSWCCA 79; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30; AK v Western Australia (2008) 232 CLR 438 considered.

6. At [123]-[127]: In determining whether an injury amounts to grievous bodily harm, the age of the victim may be relevant if the injury itself is more serious due to the victim’s age. For instance, the victim’s age may have an effect on the victim’s capacity to heal.

R v Bollom [2003] EWCA Crim 2846; [2004] 2 Cr App R 50; Director of Public Prosecutions v Smith [1961] AC 290; R v Golding [2014] EWCA Crim 889 considered.

7. At [128]-[131]: While the seriousness of an injury will be informed by any prognosis, actual harm must be proved, and any prognosis must be informative of that actual harm. The Court cannot conclude that harm is really serious based only on a speculative possibility of future harm.

AA v McDevitt [2017] ACTSC 342 considered.

8. At [132]-[139]: The skull fracture resolved without intervention. The analgesia required was fairly mild and of limited duration. The length of the hospitalisation and the necessity to undertake a CT scan under general anaesthetic predominantly related to potential harm, concerns of which did not eventuate. However, the fact that it subsequently healed without incident does not mean that at the time of admission to hospital it was not a “really serious injury”. The concerns with respect to the bones failing to knit due Ella’s age, stage of development and the length of the fracture, were real, as opposed to speculative. The fact that bone displacement did not occur does not mean that the injury can be dismissed as being not serious on the basis that no long-term harm was occasioned. It was open to the trial judge to find that the fracture to Ella’s skull amounted to grievous bodily harm, despite the fact that some potential, more serious harm did not eventuate.

JUDGMENT

1. BEECH-JONES CJ at CL: I have had the advantage of reading the judgments of Dhanji and Yehia JJ.

2. I agree with their Honours that ground 1 should be upheld. Having reviewed the evidence at the trial, I agree that it was not demonstrated beyond reasonable doubt that Ella’s skull fracture was occasioned during the so‑called “essential period” (ie, between 10.00am and approximately 8.00pm on 28 October 2018) when she was under the sole supervision of the applicant as opposed to a prior period, including a period prior to the “failure to thrive” examination conducted by Associate Professor Hopp (see [19]).

3. The evidence of Mr Reyne was that, during the essential period, he heard yelling inside the house (see [25]). That evidence, taken with the evidence of Ella’s injuries, was capable of supporting a finding beyond reasonable doubt that the applicant deliberately harmed Ella during the essential period. However, the evidence was not reasonably capable of demonstrating beyond reasonable doubt that Ella’s skull fracture was caused during that period. Ella suffered multiple injuries. Those injuries included fractures to her ulna and wrist which the medical evidence suggested were caused prior, perhaps well prior, to the essential period. Ella’s injuries also included conjunctival abrasions and a lip laceration. The evidence concerning the lip laceration suggests that it was caused during the essential period (see [77]). The evidence was silent as to the possible connection between that injury and the skull fracture. Otherwise, the medical evidence did not advance the Crown case that the skull fracture was occasioned during the essential period. Further, for the reasons given by Dhanji and Yehia JJ, the decision in TheQueen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 is of little relevance to this matter.

4. In relation to ground 2, Dhanji J has described the authorities concerning this Court’s function where it is contended that the verdict of a judge sitting without a jury is unreasonable and cannot be supported having regard to the evidence. I will not repeat that discussion other than to note the following passage from Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 (“Dansie”) where, after referring to the test in M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63 (“M”), the High Court stated (at [16] to [17]):

“16   Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.

17   The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.” (emphasis added)

5. It follows from this passage that, where the Court is considering a contention that a verdict in a judge alone trial is unreasonable and cannot be supported having regard to the evidence, the scope of the “full allowance for the advantages enjoyed by a jury” afforded to the tribunal of fact (M at 494) is not confined by any express statement by the trial judge describing, or even disclaiming, the advantages they enjoyed as such (cf Frew v R [2022] NSWCCA 165 at [63], [75] and [82]). Instead that scope turns on the “form in which the evidence was adduced at the trial and depend[s] on the nature of the issues that arose at the trial” (Dansie at [16]). Further, depending on those matters, the “advantages” enjoyed by the jury are not confined to assessments of the demeanour of witnesses and can extend to an assessment of the plausibility of a witness’ account in the context of considering how the witness presented (cf Frew id). At the risk of stating the obvious, this Court’s function in such cases is very different to that undertaken by an intermediate court of appeal hearing an appeal from a judgment in civil proceedings, whether by rehearing or an appeal in the strict sense (Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833).

6. However, for the reasons given by Dhanji J, this ground falls within the second statement in [17] of Dansie; that is, the relevant advantage enjoyed by the trial judge in this case was “slight” in that it turned on an evaluation of largely undisputed (medical) evidence. Even so, I agree with Dhanji J that it was reasonably open to the tribunal of fact to be satisfied beyond reasonable doubt that fracturing the skull of a 13-month-old child in the manner shown in [114] involved the infliction of grievous bodily harm. As indicated by the passage from R v Bollom [2003] EWCA Crim 2846; [2004] 2 Cr App R 50 (cited by Dhanji J at [125]), the age of the victim is a consideration in the determination of whether such harm was inflicted. I do not understand Swan v R [2016] NSWCCA 79 to have held to the contrary. While there is no “bright-line” (see ST v R [2022] NSWCCA 169 at [69]), in this case, the fracture to Ella’s skull amounted to significant structural damage to the integrity of an especially important part of her body. I would reject ground 2.

7. Lastly, I also agree with Dhanji J that the practice of using the names of historical figures as pseudonyms in criminal cases should not be adopted. It is capable of causing offence to the surviving members of their families and, more importantly, might be seen as detracting from the seriousness of the task the Court is undertaking.

8. I agree with the orders proposed by Dhanji J.

9. DHANJI J: The applicant was convicted in the District Court of an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). The applicant now seeks leave to appeal against her conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

10. The applicant’s trial took place between 23 to 28 September 2020, in the Albury District Court before Grant DCJ, sitting as judge alone. The applicant faced a single count of recklessly causing grievous bodily harm to her 13-month-old foster daughter, Ella. On 6 November 2020, the trial judge found the applicant guilty of the offence. A non-publication order is in place with respect to the applicant, the complainant and her brother (although the making of such an order was not strictly necessary given that s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) provides for a statutory non-publication order extending to the applicant as identifying her might identify the children). His Honour’s reasons were published as R v Bird-Walton (A pseudonym) [2020] NSWDC 730. I would not endorse the practice of using the name of a real person as a pseudonym. His Honour’s reasons will hereafter be referred to as “Judgment”. All parties have been given alternative pseudonyms for the purposes of the present judgment.

11. On 21 January 2021, his Honour sentenced the applicant to a term of imprisonment of 2 years, to be served by way of an intensive correction order commencing on 21 January 2021 and expiring on 20 January 2023. The applicant does not seek to appeal against her sentence.

12. The Crown case at trial was circumstantial. It was alleged the applicant assaulted Ella between 26 and 29 October 2018 (narrowed, in closing, to sometime between about 10:00am and 7:00-8:00pm on 28 October 2018, which came to be described as “the essential period”). It was not in dispute that Ella was in the sole care of the applicant during this time. The Crown case was that, while the precise manner by which the injuries were inflicted was unknown, the applicant assaulted Ella, causing a fracture of Ella’s parietal skull and bilateral corneal abrasions to Ella’s eyes, injuries which the Crown said amounted to grievous bodily harm. There were, in addition, a number of (relatively) minor injuries not said to amount to grievous bodily harm. The Crown case relied on expert medical evidence together with a combination of circumstances, including the absence of observable injury prior to 10:00am on 28 October 2018, the applicant’s failure to bond with Ella, which led the applicant to be upset and frustrated, the fact that the applicant was alone and upset with Ella during the relevant period, that the number, location and probable cause of the injuries was inconsistent with accident, and the absence of any innocent explanation for the injuries sustained by Ella. The applicant did not give evidence. Two records of interview undertaken by her with police were tendered in the Crown case. It will be necessary to consider the Crown case in more detail, below.

5. Although the Crown relied on both the skull fracture and corneal abrasions as grievous bodily harm, the trial judge was not satisfied that the corneal abrasions amounted to grievous bodily harm and accordingly, found the applicant guilty of the offence on the basis of the skull fracture alone. The appeal proceeded on the basis that the only available foundation for the verdict was the skull fracture. It should not be assumed from this that a combination of injuries cannot be relied on to establish grievous bodily harm, although in the present case an issue is likely to have arisen as to whether it could be established the injuries were the result of the one assault.

6. The applicant appeals on two grounds:

1. The verdict is unreasonable and cannot be supported having regard to the evidence, as it was not proved beyond reasonable doubt that Ella suffered the skull fracture within the essential period, viz between about 10:00am and 7:00-8:00pm on 28 October 2018; and

2. The verdict is unreasonable and cannot be supported having regard to the evidence, as the skull fracture suffered by Ella was not grievous bodily harm.

15. These grounds require leave as they raise questions of mixed law and fact: s 5(1)(b) of the Criminal Appeal Act. Despite the terms of the grounds, it is sufficient, in the terms of the statute, if the verdict is either unreasonable or cannot be supported having regard to the evidence.

The Crown case

Background

16. Ella was born on 23 September 2017. On 17 July 2018, when she was about nine months old, she was placed in foster care with the applicant and her husband Mr Reyne, who had been caring for Ella’s older brother, Frank, since 27 July 2017. They lived near Leeton. Ella suffered from hip dysplasia, which required her to wear a hip brace for most of the day and for the applicant and Mr Reyne to engage in physiotherapy exercises with her. This was primarily done by the applicant. There was evidence that the applicant was struggling to bond with Ella and that the child had a better relationship with Mr Reyne. As at October 2018, Ella was 13 months old and Frank was about two and a half years old.

22 September 2018 to 4 October 2018

17. On 22 September 2018, the applicant, Mr Reyne and Frank went on a pre-arranged cruise to the South Pacific and returned on 4 October 2018. As Ella did not have a passport, she was unable to travel and was placed in the care of Ms Howard during this period. According to Ms Howard, Ella was well and did not have any accidents while in her care.

18. On 4 October 2018, the applicant, Mr Reyne and Frank picked Ella up from Ms Howard’s home. Mr Reyne did not notice any injuries on Ella or anything about her behaviour that caused him concern.

23 October 2018

19. On 23 October 2018, Ella was assessed by Associate Professor Maxwell Hopp, a paediatrician, for “failure to thrive” due to her delayed development and poor weight gain. Associate Professor Hopp conducted a “head-to-toe examination” of the child and found no evidence of bruising or other injury. He referred Ella for admission to Griffith Base Hospital for further tests to be conducted.

26 October 2018

20. On 26 October 2018, the applicant dropped Ella off with her mother-in-law, Mrs Reyne, at around 10:00am to 10:30am so that the applicant could run some errands in Leeton. Mrs Reyne said that while in her care, Ella was “quite good”, ate without difficulty and was not in any pain or discomfort when Mrs Reyne moved or touched her. Mrs Reyne did not notice any bruises on Ella or see her hurt or injure herself.

21. The applicant returned to pick Ella up at around 12:30pm to 1:00pm. She took Ella to Griffith Base Hospital for the scheduled admission under the care of Associate Professor Hopp for failure to thrive investigations. During his examination of Ella, Associate Professor Hopp noted that Ella was bright and interactive and using both hands normally. In the afternoon, Nurse Renae Foster observed that Ella appeared happy. Ella remained in Griffith Base Hospital overnight.

27 October 2018

22. The next morning, Mandy Ratcliffe, critical nurse specialist in paediatrics and clinical nurse educator in paediatrics saw Ella in the course of her shift. She remembered Ella being happy, smiling and interacting with the staff. She said Ella was not distressed when touched, did not have a bruise on her forehead and ate well. Associate Professor Hopp also saw Ella and said she was well, moving all her limbs, happy, unbruised and had normal eyes. No lacerations to Ella’s lip were observed by hospital staff.

23. Mr Reyne picked Ella up from the hospital in the afternoon. He did not look to see if there were any injuries on her. He said she was “real doughy” (an expression, he later explained, he used to mean weak and tired) when he first picked her up but was reasonably happy on the car trip home.

28 October 2018 – the “essential period”

24. On the morning of 28 October 2018, Mr Reyne got Ella out of bed, changed her and gave her breakfast. He said they sat on the lounge for a bit, and at about 10:00am, when Ella got tired, Mr Reyne put her back to bed and went outside to do some yard work. Mr Reyne did not recall seeing any injuries on Ella when he changed her that morning. He said that from the point at which he went outside, Ella was left in the sole care of the applicant.

25. Mr Reyne said that, sometime after 12:00pm, he went to the back door, intending to help feed the children, but on seeing the applicant was already feeding them, went back outside and kept working. At some point after returning outside, Mr Reyne heard the applicant yelling from inside the house.

26. There was no challenge to the evidence that Ella was in the sole care of the applicant from about 10:00am until about 7:00pm or 8:00pm. There was also some evidence of difficulties experienced by the applicant with Ella during that timeframe.

27. In her record of interview, the applicant said that at about 12:00pm, she went into Ella’s room to check if she was awake and if she wanted lunch. She saw that Ella was awake and brought her out to feed her. At this point, the applicant did not notice any marks on her and her eyes were fine. The applicant said that when she fed Ella, Ella vomited multiple times which necessitated three baths and three changes of clothes. The applicant sent a text message at 3:45pm to her friend, Ms White. The message read, “Shit. I just tried to feed her, fussed the whole way through it, then threw up 3 times. I just don’t know what to do. I can’t handle this!”

28. The applicant said that at some point that afternoon, she noticed a little bruise on Ella’s forehead, which she believes resulted from her toppling forward and hitting her head on a toy.

28 October 2018 – evening

29. At about 8:00pm, Mr Reyne went back inside. His evidence from this point came from a combination of evidence-in-chief, evidence given in cross-examination by the Crown as a result of leave given pursuant to s 38 of the Evidence Act 1995 (NSW), and cross-examination on behalf of the applicant. His evidence was that when he got Ella up and changed her, he noticed that she refused to open her eyes, was “a bit funny” and “sort of doughy or confused”. Mr Reyne and the applicant tried to wash her eyes, but Ella still refused to open her eyes. Mr Reyne became concerned and drove Ella to Leeton Hospital.

30. On the way to Leeton Hospital, Mr Reyne noticed that Ella looked “doughy”, her head was flopped forward, she was rubbing her eyes and every time he drove over a bump her head lolled. At one point Mr Reyne was sufficiently concerned that he pulled over to check her breathing. Mr Reyne confirmed that from the time he collected Ella from Griffith Base Hospital on 27 October and took her to Leeton Hospital on 28 October, he did not see any bruising.

31. At about 9:30pm, Mr Reyne arrived at Leeton Hospital with Ella. According to his police statement, which was tendered by consent, Nurse Curan Mahoney noticed that Ella was unsettled, whinging a little, photophobic and refusing to open her eyes. He did not see any injuries on her. At 10:55pm, Dr Ambareesh Mohan noted in the progress notes that she was moving her head but uninterested in the phone. Shortly after that, Nurse Mahoney noted that she was alert and interacting appropriately but refusing to open her eyes.

32. After being triaged, at about 11:15pm, Ella was transferred by ambulance to Griffith Base Hospital for photophobia and irritability, without the company of either parent, and arrived just before midnight.

29 October 2018

33. According to hospital records, when Ella arrived at the Griffith Base Hospital emergency department, she was triaged by Nurse Gina Sartor, who noted that she was lethargic, cried when disturbed and had her hands over her eyes. She was then examined by Dr Scott Thompson, who was working as the Chief Medical Officer at the emergency department at the time. He informed Dr Marion Reeves, a GP and visiting medical officer of paediatrics, of Ella’s condition by telephone. Dr Thompson reported that Ella seemed to be happy and played with a tongue depressor when the room was dark, but any light caused her to squint and become very upset. He also noticed a 4cm bruise to her right forehead. It was decided that Ella should be admitted to the children’s ward.

34. Nurse Foster gave evidence that she saw Ella when she was brought into the children’s ward at about 1:30am. Nurse Foster found bruises to Ella’s forehead, behind her right ear, to her left wrist, and a laceration to her upper inside lip, with blood on her gums. Ella presented as very unsettled, would cry each time she was touched and was not opening her eyes.

35. At about 8:00am, during the morning rounds, Associate Professor Hopp and Dr Reeves saw Ella. The nursing staff had reported to Dr Reeves that they had seen further bruising through the night, that she had been upset and crying when moved but was easily comforted, and that she still refused to open her eyes when there was light in the room.

36. During the rounds, Dr Reeves observed a bruise on Ella’s forehead, behind the ear, on her left wrist and towards the side of her back. She was upset when moved but was able to be comforted with a cuddle.

37. Associate Professor Hopp observed that Ella was very unhappy and unable to open her eyes, that she was not using her right hand and that she was distressed when it was palpated. He further noted that Ella had extensive bruising involving her right wrist, upper thigh, posterior torso and behind her right ear. The constellation of injuries that Ella was suffering, combined with Associate Professor Hopp’s opinion that there was a possible fracture of her right arm, led him to the opinion that the injuries were likely to have been inflicted rather than accidental.

38. During the day, several nurses made observations of Ella consistent with the above, such that her presentation on this day was described as completely different to her presentation on 27 October.

39. As Associate Professor Hopp and Dr Reeves formed the view that Ella’s presentation was not accidental, an investigation by the Murrumbidgee Child Abuse Unit commenced. The applicant was interviewed by police at 4:40pm, where she accepted that she was the only carer inside the home with Ella on 28 October while Mr Reyne was outside in the yard.

40. At about 5:10pm on 29 October 2018, Ella was transferred by air to the Sydney Children’s Hospital for further testing and to get input from the Child Protection Unit.

After 30 October 2018

41. On 30 October 2018, the Child Protection Unit paediatrician, Dr Lydia Garside examined and photographed Ella. On 31 October 2018, a brain CT and an X-ray skeletal survey were performed. These examinations established that Ella had a non-displaced fracture to her skull, fractures to both wrists, laceration to her inner upper lip and bruising to her head behind the right ear, both wrists, lower and upper limbs and back. Dr Garside’s findings and opinions are the subject of further discussion below.

42. On 1 November 2018, Ella no longer seemed bothered by her eyes. A whole-body bone scan was performed, showing a subtle increased uptake in the right posterior parietal skull, a possible indication of healing in the bones. Progress notes dated 1 November 2018 indicated that no intervention was required other than analgesia as needed. Progress notes dated 2 November 2018 recorded that the neurosurgical registrar was happy with the CT images and that there was no need for an MRI from a neurosurgery point of view. The bruise behind Ella’s ear seems to have resolved by about 3 November 2018.

43. On 5 November 2018, a brain MRI was performed at the request of the Child Protection Unit for forensic purposes, showing no evidence of intracranial injury.

44. Progress notes during her stay at Sydney Children’s Hospital demonstrated that the corneal abrasions had healed by about 31 October or 1 November 2018 and that Ella was well, alert, happy and not in pain from at least 31 October 2018.

45. Ella was discharged on 7 November 2018.

Other evidence

46. As noted above, the applicant participated in two records of interview with police. In those interviews, she accepted that she had struggled with her relationship with Ella but denied deliberately doing her any harm. She postulated that the source of the difficulty in the relationship was her responsibility for Ella’s physiotherapy exercises which caused Ella discomfort. No plausible mechanism for the injury to Ella’s skull (or for the majority of the injuries) was suggested. She said she was aware of the laceration to Ella’s lip and believed it was first caused when Frank tapped on a bottle that was in Ella’s mouth, causing the plastic to hit the skin. She said this had occurred weeks before the hospital admission and was in the process of healing. She also said that Mr Reyne had reported to her an occasion on which Frank had pulled Ella off the lounge onto the floor. She was able to place this as having occurred on 4 or 5 August, as she was on a weekend away at the time it occurred. While Mr Reyne gave evidence that this had occurred, there was reason to doubt this account. Apart from him having never reported it to any of the medical staff or police across various interviews, he had specifically told police in an interview that Ella had never fallen off a lounge. In any event, he did not suggest that she had reacted in any way consistent with any serious injury having resulted. Some other events, such as Ella falling back and hitting her head on a coffee table and bumping her head in the shower, were reported. However, these matters were not, according to the medical evidence, capable of explaining the injuries.

47. The applicant did not give or call any evidence at trial.

Allegation

48. Based on the above evidence the Crown contended that in the period between about 10:00am and 7:00-8:00pm while Ella was in the sole care of the applicant, the applicant lost her temper and inflicted the injuries relied on by the Crown.

The appeal

49. While there are two grounds of appeal, both invoke the first limb of s 6 of the Criminal Appeal Act. That is, both grounds assert that the verdict is unreasonable. The first ground asserts that this is so on the basis of the Crown’s failure to prove, beyond reasonable doubt, that the injury suffered by Ella and relied on as grievous bodily harm occurred within the timeframe ultimately particularised by the Crown. The second ground similarly asserts that the verdict is unreasonable but asserts that this is so on the basis that the injury did not amount to grievous bodily harm.

50. As noted above, the trial was by judge alone. While the first limb of s 6 allows for an appeal on the basis that the “verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”, where a trial on indictment proceeds by judge alone, s 133(1) of the Criminal Procedure Act 1986 (NSW) provides that “a Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person” and that “[a]ny such finding has, for all purposes, the same effect as a verdict of a jury”. As was explained in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [11], the effect of this provision is to “equate a judge’s finding of guilt to a jury’s finding of guilt ‘for all purposes’”. Thus, for the purposes of an appeal against conviction brought pursuant to s 5 of the Criminal Appeal Act (and determined pursuant to s 6), a judge’s finding of guilt is treated as if it were a jury’s finding.

51. It follows from the above that the test to be applied in determining an unreasonable verdict ground in the present appeal is the same as the test applied with a jury verdict: Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [7]-[8]; Filippou v The Queen at [12]. The test to be applied to a complaint that the verdict is unreasonable within the first limb of s 6(1) of the Criminal Appeal Act was explained in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (“Pell v The Queen”) at [43]-[45] as follows:

“43   At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:

"whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".

44   The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:

"But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt." (Footnote omitted; emphasis in original.)

45   As their Honours observed, to say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.” (footnotes omitted)

52. In Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 the High Court observed (at [55]):

“An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.” (footnotes omitted)

53. The correctness of the above, and its application to a judge alone trial, was re-affirmed in Dansie v The Queen. The Court there observed at [17] that:

“The advantage that a trial judge might have had over a court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial. In a case such as the present, where the prosecution case was circumstantial, where the evidence adduced by the prosecution was largely uncontested and for the most part in the form of transcripts of unchallenged testimony, and where the appellant did not give evidence, the advantage must be slight.”

54. That observation is of significance in the circumstances of the present matter, at least in relation to the first ground of appeal. That ground is ultimately concerned with the capacity of the combination of circumstances to prove the applicant’s injuries were caused in the essential period. Any advantage held by the trial judge was, in this regard, “slight”.

54. The approach by this Court to the second ground of appeal raises somewhat different issues. It will be necessary to consider the issues in this regard more closely in the context of that ground.

Ground 1 – The essential timeframe

56. As noted above, although the indictment particularised the offence as having occurred between 26 and 29 October 2018, by the time the case was closed the Crown had narrowed its case to the period referred to in the ground. This was a period during which it was established that the applicant had sole care of Ella. The imprecision in the start and finish time is reflective of imprecision in the evidence of Mr Reyne as to when the applicant had that sole care.

57. In opening its case, the respondent indicated it relied on a fracture to the skull, injuries to Ella’s eyes, an injury to the inner lip, bilateral wrist fractures and the bruising as amounting to grievous bodily harm for the purposes of the charge. While there was also evidence of a fracture to the left ulna (one of the two bones in the forearm), this was not relied upon, as the age of that fracture made clear it predated the charge period. In written submissions, closing its case, the respondent made clear it no longer relied on the wrist fractures on the basis that the Crown could not prove that those injuries occurred within the relevant timeframe. Of the remaining injuries, the trial judge found only the skull fracture amounted to grievous bodily harm. The applicant was convicted on this basis. The framing of this ground reflects this narrowing of the case. Critically, it was accepted by the respondent that, if the finding that the skull fracture was inflicted in the relevant time was unreasonable in the sense the term is used in s 6(1) of the Criminal Appeal Act, then the verdict is unreasonable.

58. As a significant part of its proof as to when the injury occurred, the respondent relied on the evidence of Dr Garside. Dr Garside examined Ella at Sydney Children’s Hospital on 30 October 2018 and in the days following. She also had access to various notes, photographs, and records of prior examinations and additionally spoke with Mr Reyne in relation to the history. She provided a report dated 7 November 2018 and gave evidence at trial. It was not an issue that Dr Garside was qualified to give the opinions she provided.

59. The respondent accepted on this appeal that the evidence of Dr Garside, alone, could not prove, beyond reasonable doubt, that the injury occurred within the essential period. The respondent submitted that the evidence of Dr Garside, together with other evidence, did prove the injury occurred in the timeframe alleged.

60. Dr Garside summarised the injuries with which Ella presented as follows:

“1.   Linear non-displaced fracture of the right parietal bone (skull fracture)

2.   Bilateral conjunctival abrasions

3.   Laceration to the mucosa of the inner upper lip

4.   Transverse fracture of the proximal left ulna at the diametaphyseal junction with surrounding periosteal reaction.

5.   Bucket-handle/corner type metaphyseal fractures of both distal radii (bone at the wrist) with associate periosteal reaction (classic metaphyseal lesions (CMLs)).

6.   Probable corner-type metaphyseal fractures in both distal ulnae (bone at the wrist) (CMLs).

7.   Bruising to the right side of the head, lower limbs, upper limbs and back.”

61. Dr Garside gave evidence that, unlike fractures occurring in some other parts of the body, it is not possible to age a skull fracture from medical imaging. Any attempt to age the fracture is reliant on the available information beyond the fracture itself. It was, therefore, necessary to look to the other available information.

62. Dr Garside had regard to the results of the various medical examinations set out above. In particular, there was the “head-to-toe” examination by Associate Professor Hopp on 23 October. While the examinations during her admission between 26 and 27 October appear to have been of a more cursory nature, Dr Garside noted that in the afternoon of 27 October, on discharge from Griffith Base Hospital, Ella was described as “bright, chatty, playful and interactive”.

63. That presentation was in sharp contrast to Ella’s presentation when she was taken to Leeton Hospital on the evening of 28 October by Mr Reyne. Dr Garside said that the distribution of bruising observed was generally not such as is “typically seen in accidental injury”. Ella’s lack of mobility made the distribution of injury even less likely to be the result of an accident. Further, the various fractures (excluding the left ulna) when taken together, and in the absence of any suggested mechanism for each of those injuries, made it “highly unlikely that all of those injuries were separate accidental injuries”. While this evidence very strongly suggests that there was non-accidental infliction of harm upon Ella, and indeed satisfies me that at least some of the injuries to Ella occurred between her discharge from Griffith Base Hospital on 27 October and her re-admission to Leeton Hospital on 28 October, it is necessary to consider the evidence in relation to the individual injuries more closely.

The bilateral conjunctival abrasions

64. Dr Garside reported that such abrasions can be the result of something hitting the eye or blowing into the eye, such as plant matter, dust or dirt. She noted that such abrasions could be caused by foreign matter getting stuck under the eyelid, prompting rubbing of the eyes.

65. The applicant had told Ms Howard on 28 October that shampoo had gotten into Ella’s eyes during a shower, which the applicant tried to wash out using water. She told the police the same thing in each of her interviews.

66. Dr Garside indicated that it was “unusual to have such severe injuries in both eyes, unless she was in some sort of sandstorm or she’d been out in the wind and had a whole lot of foreign matter going into her eyes and had immediate sort of pain and blepharospasm [involuntary closure of the eyelids]”. She noted that there was no such history. When asked about shampoo as a possible cause she said that “having shampoo in the eyes to the degree of the abrasions” would be very unusual, that baby shampoo is less abrasive than adult shampoo, but that it was “not [her] area of expertise”. She reiterated that such injuries in children were “highly unusual”.

67. A curious feature of the injury to the eyes was that, while there was real doubt as to whether the injuries could have occurred accidentally, there was also no evidence as to how they might otherwise have been inflicted.

The fracture to the left ulna

68. As noted above, the skeletal survey revealed a fracture to Ella’s left ulna. Unlike the skull fracture, it was possible from the imaging to provide an age range with respect to this fracture, which Dr Garside put as likely to be more than 10 days but less than three months old. Given the skeletal survey was performed on 31 October, this fracture was likely occasioned somewhere in the period between the beginning of August 2018 and 21 October 2018. In cross-examination, Dr Garside clarified that the injury was unlikely to have been as old as three months. It might be noted that this places the timing of the injury to a point after Ella came into the care of the applicant and Mr Reyne. It also, of course, predates the medical examinations commencing on 23 October 2018.

69. Dr Garside gave evidence that the injury could be caused by a fall, a direct blow or by the arm being manhandled in some way. Insofar as a fall was a possibility, Dr Garside indicated it was highly unlikely to have been caused by a fall from a sitting position. Further, while a mechanism such as falling from a lounge might cause such a fracture, in those circumstances the injury would have been immediately painful and Ella would have stopped using her arm at that point. The lack of evidence of any such response excluded the reported fall from the lounge as a potential explanation. The evidence therefore suggested the fracture to the left ulna was unlikely to have been caused by an accident.

The wrist injuries

70. Associate Professor Hopp examined Ella on 26 October 2018. While he described this as a “cursory” examination, his notes indicated that she was happy, using both her hands normally, and reaching out with both arms to play with toys given to her or placed nearby. In contrast, he gave evidence that when he examined Ella on 29 October, she was not moving her right arm at all and became distressed when her arm was palpated. He suspected that there was a fracture, which was confirmed by X-ray.

71. Dr Garside confirmed that the injuries were to an area known as the wrist bone. Her evidence was that this type of injury is normally caused by a twisting, or twisting and pulling, which “would be violent and [would involve] some force to cause the end of the bone to lift off”. The mechanism causing the injury was the same for both wrists, suggesting to Dr Garside that, while they could have occurred separately, they occurred with the same or a similar mechanism.

72. As to the date of this injury, the evidence of Associate Professor Hopp was that there was no injury to the right wrist detected on 26 October, but that on 29 October (quite apart from the scans) Ella’s presentation suggested a fracture to that wrist. There was no corresponding opinion expressed with respect to the left wrist.

73. More significant was the evidence in relation to the bone scans. Dr Garside said that while it is difficult to date fractures of this type, in this instance, the skeletal scan indicated that there was a periosteal reaction in the area of the fracture to the left wrist. The following questions and answers were given:

“Q.   That suggests that the fracture to the – the bucket handle fracture is more than ten days old?

A.   Yeah. I would say that. It’s – yeah. It’s classically very difficult to date these CMLs but on occasion you do get periosteal reaction, and when there’s a periosteal reaction we would say it’s more than 10 days.

Q.   If there’s periosteal reaction on 31 October 2018 that rather sits against a theory that these fractures were caused on, say, 28 October, does it not?

A.   Yeah. Absolutely, and I think a child may still use their arms and legs even if they’ve got fractures, which is why we always do skeletal surveys. The clinical examination is not always reliable.”

74. The bone scan report also indicated that there was a periosteal reaction around the fracture of the right wrist.

75. The evidence was, therefore, that the fracture to the left wrist occurred sometime on or before 21 October. While Dr Garside was not specifically taken to the identification of a periosteal reaction associated with the right wrist fracture, there was nothing to suggest the above evidence would not be of equal relevance to the age of that fracture.

76. There was no exploration of how the above evidence might be reconciled with the observations of Associate Professor Hopp beyond the observation of Dr Garside that “clinical examination is not always reliable”. Insofar as Ella presented on 28 October with obvious discomfort in relation to her right arm, one possibility that suggests itself is that while the wrist fractures occurred at some earlier time, there was a reinjuring of the right wrist on 28 October.

The lip laceration

77. Dr Garside gave evidence that the laceration to the mucosa of the inner upper lip was not something that Ella could have caused herself. She said that this part of the body heals very quickly and she was able to estimate the age of the injury as between 24 and 48 hours old. This excluded the explanation given by the applicant in her record of interview to the effect that Frank had caused the injury weeks before the hospital admission. Given Dr Garside saw Ella on 30 October 2018, her evidence was the injury could be dated to 28 or 29 October. Combining this with the other evidence, the overwhelming inference is that the injury was occasioned on 28 October while Ella was in the sole care of the applicant.

The evidence of lethargy

78. The effect of the evidence of Mr Reyne, as discussed above, was that during the car trip to Leeton Hospital on the night of 28 October 2018, Ella was “looking down”. He accepted that he had previously, and accurately, described her as “struggling to lift her head” and that “her head was flopped forward and every time [he] went over a bump her head lolled”. He was sufficiently concerned that he pulled over to check that she was still breathing. Hospital records after admission on 28 October also documented lethargy, although the initial records from Leeton Hospital appear to record the history provided by Mr Reyne as opposed to observations made by the hospital staff themselves. However, an ambulance record of the transport from Leeton Hospital to Griffith Base Hospital records Ella as being “quite floppy”. At Griffith Base Hospital she was observed to be “lethargic”.

79. Dr Garside in her report said that this history “could be in keeping with a neurological insult, such as head trauma, that would result in a reduced conscious state and subsequent lethargy and irritability[,] which were described by staff at Leeton Hospital and at Griffith Base Hospital”. In her evidence she indicated that neurological insult would be part of a differential diagnosis for any child with such symptoms. Other differential diagnoses were available but after investigations were made, “nothing else was found to account for that drowsiness”. She then gave the following evidence:

“Q.   In your opinion what does that say about the timing of the neurological insult?

A.   Well, I am suspicious. I'm suspicious that her reduced conscious state in retrospect would have been secondary to head trauma because we found a skull fracture in the bruising behind the ear. I can't say for certain but it, it, that makes me suspicious.

Q.   It's consistent?

A.    It's, it is consistent the two things yeah.”

80. Dr Garside was not questioned as to the temporal relationship between drowsiness and neurological insult. The full extent of the evidence in that regard was in a progress note dated 18 January 2019 written by Dr Lee, a child protection registrar relating to a meeting with the police Child Abuse Unit (including the officer in charge) at which Dr Garside was also present. The note recorded as follows:

“Asked about whether [Ella’s] symptoms on re presentation to Hospital (Leeton Hospital) could be explained by a head injury and whether if the injury occurred at lunchtime would those symptoms still be present in the evening at 9pm (when she presented)

- explained that yes, it is possible that she was still symptomatic from an event that could have occurred at lunch time - head injury symptoms can resolve in minutes or take days to resolve

- symptoms as reported by [Mr Reyne] could be explained by a head injury - head "lolling" in the car en route to Leeton Hospital and needing to stop the care (sic) to "check that she was still breathing" as well as the fact that she [w]as so drousy (sic) whilst being fed her dinner that [Mr Reyne] took her immediately to Leeton Hospital.

I explained that [Ella] was well when she left hospital - as witnessed by several medical and nursing staff - no bruising, no injuries, alert and active and alert. When she returned to medical attention the following day she was drousy (sic), consistent with a head injury and had several injuries - laceration in mouth, bruising to head. This indicates that something happened to her between when she left hospital and when she returned to hospital.

Police requested expert certificate for court.”

The skull fracture and its timing

81. The medical evidence, such as the lack of observable injuries prior to 28 October 2018, establishes to my satisfaction that Ella suffered non-accidental injuries while in the sole care of the applicant. Evidence of the applicant’s difficulties in her relationship with Ella and the evidence of her yelling during the course of 28 October further support the conclusion that she caused some harm to Ella in the course of that day. Proof that Ella suffered non-accidental injuries while in the care of the applicant does not prove that all the injuries were occasioned during that period. The issue on this ground of appeal remains whether the skull fracture was occasioned during this period.

82. The evidence of bruising was a critical part of the evidence relevant to the timing of the skull fracture. With respect to the bruising on the right side of the forehead, Dr Garside indicated that while it was potentially the result of the mechanism that occasioned the fracture, she could not say they were connected. In her record of interview the applicant said that she was aware of this bruise. She said Ella had toppled forward and hit her head on a toy. Dr Garside opined that while such an event could explain this bruise, it could not explain the skull fracture. This bruise had resolved by the time that Dr Garside saw Ella on 30 October.

83. Dr Garside also ruled out the possibility the fracture could have been caused by Ella throwing her head back and hitting a table, an event that had been suggested by the applicant to the police. She appeared to accept the possibility that it could have been caused by Ella falling off the lounge onto the wooden floor. She said that, in this instance, it would have needed to be a direct impact, without Ella putting out her hand to break her fall. While, as discussed above, there was evidence of such an event having occurred on 4 or 5 August, the reported reaction of Ella was not consistent with serious injury.

84. Dr Garside’s evidence was that the bruising behind the ear was of greater significance. She said that “there is very likely to be a relationship between the skull fracture and that bruising”. She explained that when a bone is fractured it “bleeds out and it can either cause a haematoma or swelling or it can track down, normally by gravity, to an area below the area of the fracture”. She said that in the present case it was the latter. If this was the case it would also not be unusual for there to be an absence of swelling (as was the case here).

85. Dr Garside, in her report had said that bruises are normally caused by blunt force trauma (to the site) and attributed the bruise behind the left ear to such a cause. However, in giving evidence she revised her opinion. She said that on reviewing the pictures and the evidence she thought that the bruising behind the ear was “more likely” caused by bleeding from the parietal skull fracture in the process described above. This was on the basis that there was no evidence of any injury to the fleshy part, (or pinna), of the ear.

86. No evidence was led as to the likelihood of a bruise behind the ear being occasioned by impact to the ear without occasioning injury to the ear itself, although my own reaction is that this seems unlikely. Nor was there any evidence in relation to the prospect of the bruise resulting from pressure applied to the area without contact with the ear, such as by a grabbing of the back of the head.

87. There were also limitations to the reliance on the bruises as a basis to time the skull fracture. Dr Garside gave the following evidence in relation to the ageing of bruises:

“Q.   You subscribe to the theory that it’s notoriously difficult to age bruises?

A.   I do, yeah.

Q.   Are there outer limits to that in terms of, you know, the maximum time it would take for a bruise to show up?

A.   I wouldn’t like to say, to be honest, because it depends on the amount of bleeding, the depth of the bleeding, the age of the child, how healthy the skin is, how healthy the child is at the time. It’s very, very difficult to age bruises.”

88. In cross-examination, Dr Garside gave the following evidence:

“Q.    One theme that I have drawn from your report and from the notes is that despite exhortation, you will not be drawn in any way on the age of the skull fracture.

A.    No, I can’t be drawn on the age of the skull fracture.

Q.    It’s too hard, for the reasons –

A.    Yeah, unless I’ve got a witnessed mechanism that matches the fracture it’s too difficult radiologically and clinically.”

89. While Dr Garside was not further questioned in relation to the above answer, the expression “radiologically and clinically” suggests that the answer related to her opinion based on both the bone imaging and the clinical presentation. This view of the evidence is consistent with the following question and answer:

“Q.   It might have occurred on 28 October or it might have occurred before 28 October? Do you agree with that?

A.   Yeah, that’s, that’s correct. I mean the presence of the bruising drew me to think it was more recent but that bruising could be another injury conceivably.”

90. The combination of lethargy and the location of the bruise make it, at the least, highly suspicious that the skull fracture was occasioned in the essential timeframe. Ultimately, however, Dr Garside would not be drawn on a conclusion. There was no other expert opinion as to the age of the injury. I would not lightly draw a conclusion that goes further than the expert evidence. The principles in this regard are clear: see, generally, R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [44]; Mizzi v The Queen (1960) 105 CLR 659 at 663; [1960] HCA 77; Hone v State of Western Australia [2007] WASCA 283 at [2]-[12] (Steytler P), [124]-[126] (Miller JA); Ukropina v R [2016] NSWCCA 277.

Other evidence

91. As noted above, the respondent accepted that the evidence of Dr Garside could not, alone, prove the fracture occurred in the essential period. The question is, therefore, whether there is evidence beyond the clinical presentation and imaging that would allow a conclusion that the injury was occasioned in the critical timeframe. There was no issue that the applicant was a person of prior good character or that she attempted, with her husband, to provide a safe and loving environment for Ella and Frank. However, there is evidence, and I am indeed satisfied, that the applicant occasioned some injury to Ella on 28 October 2018. Accordingly, the evidence as to her prior character is of no moment.

92. The combined effect of all the evidence was that Ella was well cared for from the time she was in the custody of the applicant and Mr Reyne up until 28 October. This included periods when Ella was in the care of other people such as Ms Howard and the applicant’s mother-in-law. However, the capacity of this evidence to exclude a particular injury having been occasioned prior to the essential timeframe was limited. This was because the expert evidence established that the fracture to the left ulna occurred within three months of 30 October but had not occurred within the last 10 days. Similarly, there was evidence suggesting the fractures to the wrists were occasioned on or before 21 October. The injuries to the wrists, and probably that to the ulna, are highly likely to have been non-accidental. This begs the question of whether the skull fracture could also have been occasioned at a time prior to the essential period.

93. There was, of course, the evidence of the difficult relationship the applicant had with Ella, the yelling and the sending of the text message on the afternoon of 28 October, which are consistent with the applicant inflicting some injury on that day. However, given that the evidence establishes that some injuries were occasioned to Ella prior to the essential period, and others during the essential period, this evidence does little to assist in determining the category into which the skull fracture fell.

94. The respondent submitted that, in addition to the expert evidence, the Court ought to take into account the fact that the applicant had failed to put forward any alternative mechanism capable of explaining the fracture to the skull. The respondent relied on TheQueen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [50]-[51] in support of this submission. It might be noted that, unlike in Baden-Clay, the applicant did not give evidence. She did, however, participate in two records of interview, in which, as discussed, no plausible explanation was provided for the skull fracture. However, the issue presently under consideration is focused on when the injury occurred. This was an essential part of the Crown case in proving that the applicant was responsible. It was not for the applicant to give evidence to establish the injury was occasioned outside the essential period. Indeed, such an event may have been outside her knowledge. Further, there are available explanations as to why the applicant may have chosen not to give evidence. The most obvious is that, in doing so, she would have, given my views expressed above, inculpated herself with respect to at least some of the injuries within the essential timeframe. The type of reasoning discussed in Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 and Baden-Clay is not available. It is, in these circumstances, unnecessary to decide whether, had the Crown proved the fracture occurred in the essential timeframe, reliance could be placed on the failure of the applicant to give an explanation. That, as opposed to the present situation, would be closer to the situation in which the type of reasoning discussed in Weissensteiner v The Queen and Baden-Clay might be employed.

95. Ultimately, to the extent that Dr Garside was drawn on the timing of the skull fracture, it came from evidence given early on in her evidence-in-chief and was tied to the timing of the injuries generally. Her evidence was as follows:

“Q.    Did the contrast in presentation between discharge on 27 and admission on 28 October, did that feed into the assessment that you ultimately made of the causation of the injuries?

A.    Well, not necessarily the causation of the injuries, but the timing of the injuries, I would say. So normally when I take a history from a parent I like to know when they were last completely well, and when the change occurs. So this was why it was important to know that independently the hospital had described her as bright, chatty, playful [and] interactive, and when she was seen again at the hospital she was not that way.

Q.    In terms of the conclusion that you drew did that make it more likely that the injuries had occurred in between those two times?

A.    It makes it more likely that they occurred in the two times, because she had been examined by a paediatrician while she was in hospital originally, and no injuries were seen or at least no injuries were documented in the notes.”

96. However, as the evidence unfolded, given what could be said as to the age of some of the fractures, it was not possible to place the injury to the skull in the essential period simply on the basis of the premise that Ella was well, and then she was not. Regrettably, no attempt was made by the Crown to deal with the problem that arose, either through Dr Garside or through Associate Professor Hopp. The latter, in particular, might have explained how it was that the wrist and ulna fractures were not detected in the “head-to-toe” examination on 23 October, and whether, in the light of this, there was any possibility the skull fracture was present on either 23 or 26 October but not detected.

97. The evidence of earlier injuries, in conjunction with Dr Garside’s inability to provide a firm opinion as to the age of the skull fracture, are such that the possibility that the skull fracture occurred at some time prior to 28 October cannot be excluded.

98. Having regard to the respondent’s concession that proof of the applicant’s guilt beyond reasonable doubt required proof that the fracture occurred within the essential period, I am of the view that this ground has been made out and the verdict is, consequently, unreasonable.

Ground 2 – An appeal on the question of “grievous bodily harm”

Nature of the review of a finding of grievous bodily harm

99. As discussed above in the context of ground 1, in determining whether a verdict is unreasonable the test to be applied is that stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The particular question here is whether the injury suffered by the complainant amounted to grievous bodily harm. While whether an injury fits this description will be a question of fact and degree to be determined in each individual case, the outcome is binary. A particular injury must be determined to either amount to grievous bodily harm, or to fall short of it. This raises a particular question as to the nature of any “advantage” held by a jury when applying the test in M v The Queen.

100. In some cases, the tribunal at first instance assessing whether an injury is grievous bodily harm may have an advantage over an appellate court. The most obvious example is where there is an issue as to the credit of the complainant with respect to the impact of the injuries suffered. Even where there are no issues as to credit, a jury (or trial judge) may still have an advantage simply as a result of seeing firsthand the complainant describe the injuries and their impact. Nor is the advantage in the first instance assessment of a witness lost simply on the basis that the witness is an expert: Chambers v Jobling (1986) 7 NSWLR 1 at 25; Joyce v Yeomans [1981] 1 WLR 549; [1981] 2 All ER 21 at 24, 27. Here, however, where there was no contest as to the injury or its effects (albeit these were not certain), I apprehend the trial judge to have had no (or at best, only slight) advantage in assessing the injury. In these circumstances, the question arises as to how the test in M v The Queen is to be applied. Should this Court form its own view as to whether the injury amounted to grievous bodily harm? If, having done so, the Court is of the view that the injury was not grievous bodily harm, then, given the trial judge had no relevant advantage, the verdict, seen from the perspective of this Court, could be described as wrong. If wrong in this sense, does it follow that such a verdict is unreasonable, or unable to be supported having regard to the evidence? Does the applicant, in effect, get a second trial on this issue? Further, is the answer to the question affected by the fact that the verdict was that of a judge and thus might be thought not to have the “sanctity” of the verdict of a jury?

101. Returning to the text of the provision, the terms of “the first limb” of s 6 of the Criminal Appeal Act do not clarify the approach to be taken by this Court. The question raised by the statute is whether the finding that the injury amounted to grievous bodily harm was “unreasonable” or “cannot be supported having regard to the evidence”. Those two expressions have not been understood as creating separate tests. Indeed, until relatively recent times, appeals or conclusions with respect to appeals under this ground tended to use language such as “unsafe or unsatisfactory”, “unjust or unsafe” or “dangerous or unsafe”: see M v The Queen (Mason CJ, Deane, Dawson and Toohey JJ at 492), although as their Honours explained at 493, the verdict might be unsafe and unsatisfactory “for reasons which lie outside” the first limb of s 6. The High Court in Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 referred to these observations and stressed the need for attention to be given to the terms of the statute, noting the potential confusion arising from expressions such as “unsafe and unsatisfactory” (at [12]). Since that time, grounds of appeal have tended to be framed in accordance with the terms of the statutory provision, either as “unreasonable” or “unable to be supported having regard to the evidence”, or both. While the use of one form of words may be more apposite to a particular case than the other, I do not apprehend that to be the case here.

102. It is necessary to consider the authorities in more detail. It is convenient in the first instance to consider the question in the context of an appeal from the verdict of a jury, and then to determine whether the approach is any different where the appeal is from a verdict following trial by judge alone.

Review of a jury verdict

103. In my view, to simply substitute the verdict of a jury with the opinion of this Court, even where there was no relevant advantage with respect to the understanding of the evidence, would not be correct. The nature of the jury’s “advantage” is not limited to matters such as the assessment of witnesses or the opportunity to hear the evidence unfold over a longer period. It is helpful to return to the circumstances in which Pell v The Queen was decided. The High Court was there concerned with an appeal in which the intermediate court of appeal had available to it video recordings of the critical evidence given at trial. The members of the Victorian Court of Appeal, in addition to reading the transcript, watched the video recordings of a number of important witnesses including that of the central witness, the complainant, who was the only eyewitness to the offending alleged against him, and to the second alleged victim. The members of that Court also watched a video recording of the view that had been undertaken of the cathedral where it was alleged the offences took place. In the case of the critical witness, the complainant, the majority indicated they had viewed the evidence more than once: Pell v The Queen [2019] VSCA 186 at [90] (Ferguson CJ and Maxwell P). Significantly, in the case of that witness, what the Court of Appeal saw was precisely what the jury saw. That was because the appeal was from a conviction after a retrial in which the complainant did not give evidence. Rather, the jury saw the recording of his evidence from the first trial. The process of watching the evidence apparently took a number of days: see at [1045] (Weinberg JA).

104. The High Court, in joint reasons, rejected the submission made by the respondent that the existence of the recordings was sufficient to make it “appropriate” that they be viewed by the Court of Appeal. This was an issue which had earlier been resolved by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. What is important for present purposes is that the context of the High Court’s consideration of the test for unreasonableness was one in which the jury had no (or at best, a very marginal) relevant advantage over the Court of Appeal. The High Court said (at [38]):

“It should be understood that when the joint reasons in M v The Queen spoke of the jury's “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.” (footnote omitted)

105. The above is consistent with earlier observations of the High Court in Baden-Clay (at [65]-[66]):

“65 It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

66    With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (footnotes omitted)

106. Thus, while a given injury is, or is not, grievous bodily harm, that question, at least in the first instance, is within the province of the jury. While that determination is subject to review by this Court, a different view would only be taken in the event that the verdict of the jury was “unreasonable”. In making this determination, this Court would not simply substitute the jury’s view with its own view, so as to “substitute trial by an appeal court for trial by jury”, but rather would determine whether it was “open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” by forming our own view as to whether the injury amounted to grievous bodily harm and then determining whether it was open to the jury to come to a different view. The word “open” in this context retains the meaning given to it in M v The Queen (and does not mean open as a matter of law). It does require that regard be had to the constitutional role of the jury in determining a matter which involves a question of degree.

107. The above approach is that which I apprehend is taken when matters are referred to by this Court as “quintessential” jury questions: see, for example, JH v R [2021] NSWCCA 324, at [24], [41]-[43]. In JH v R it was not suggested that by labelling the issue as one for the jury, it was not subject to review by this Court. McCallum JA (as her Honour then was), having noted that the law “does not assume that juries are witless” (at [24]), referred to the well-known “open to the jury” test but noted that the jury, in that case, did have an advantage in determining the question of seriousness of harm.

108. In R v RIK [2004] NSWCCA 282, the appellant contended that his conviction for manslaughter was unreasonable. In issue was whether a reasonable person in the position of the appellant would have appreciated his acts were exposing another to a significant risk of serious injury, and whether the response of the deceased (who was killed as a result of jumping onto railway tracks in order to evade the appellant) was reasonable or proportionate in all the circumstances. This, it can be seen, raised questions of judgment, fact and degree. Hodgson JA (with whom Hulme J and Smart AJ agreed) said (at [16]) that it was “appropriate for this Court to exercise considerable care before coming to the view that no reasonable jury, properly directed, could find beyond reasonable doubt in favour of the Crown on these questions”. Later, his Honour said (at [23]):

“The question before this Court is not whether this Court would be satisfied that the appellant acted dangerously or that the response of the deceased was reasonable or proportionate. Unless this Court is of the view that no reasonable jury, properly directed, could be satisfied beyond reasonable doubt of these matters, the appeal must fail.”

109. The “no reasonable jury” test is one that is most commonly engaged in complaints of inconsistent verdicts: that is, that “no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion …”, based on the reasons in MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35, quoting R v Stone (Court of Criminal Appeal (UK), Devlin J, 13 December 1954, unrep). A ground of appeal which asserts that verdicts are inconsistent asserts that they are, by reason of that inconsistency, unreasonable within the first limb of s 6(1) of the Criminal Appeal Act. (I pause to note that this is one example of a case where the “cannot be supported” formulation may be inapposite). There is no reason in principle why the “no reasonable jury” test should be limited to complaints of inconsistent verdicts. It is, however, noteworthy that it appears to have primarily been engaged in a context that is not concerned with the quality of the evidence.

109. In Swan v R [2016] NSWCCA 79, the question on appeal was, as it is here, whether the injuries occasioned amounted to grievous bodily harm. Garling J (with whom R A Hulme and Wilson JJ relevantly agreed, although the latter dissented as to the result) acknowledged that while it was a question “of fact and degree, and appropriately one for the jury’s assessment, that does not mean that all injuries will properly be assessed as really serious, or that this Court has no role to play in determining whether, on such an issue, the jury’s verdict is unreasonable” (at [76]). His Honour concluded that the verdict was unreasonable as “the jury must have concluded that there was a real doubt that the injury amounted to grievous bodily harm” (at [77]).

110. Garling J’s expression of the test evokes the expression used by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]. There, his Honour said, the appellate court is to decide “whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt” (emphasis in original). While Hayne J’s statement has been sometimes deployed with the suggestion it provides a different or more stringent test, as was made clear in Pell v The Queen (at [45]) and emphasised in Dansie v The Queen (at [13]), it was not a departure from the test in M v The Queen. Indeed, Hayne J provided a footnote to the joint reasons in M v The Queen as authority for his Honour’s statement. Rather, to say the jury “must have had a doubt” is the same thing as saying a verdict was “not reasonably open”: Pell v The Queen at [45]. It can also be equated with the “no reasonable jury” test. These expressions of the test are, in my view, helpful in the context of what are usually described as “quintessential” jury questions. While some questions might be described as such, the “open to the jury” test does not quarantine them from review or reduce them to a question of law. What is required is an appreciation that, as discussed by Brennan J in M v The Queen at 501, there is an ambiguity in the word “open” making it necessary to be clear as to the sense in which it is used: see also per McHugh J at 525.

Review of a judge alone verdict

112. In the present case, the trial was by judge alone and it is obviously inapposite to describe the determination as quintessentially one for the jury. As noted above in the context of ground 1, however, s 133(1) of the Criminal Procedure Act provides that a judge hearing a trial without a jury “may make any finding that could have been made by a jury …”. As was pointed out in Filippou v The Queen at [6], the reference to a “finding” in s 133(1) is a reference to the ultimate finding of guilt. Nonetheless, the effect of s 133 is that a judge’s finding of guilt is “to be treated as if it were the same as a jury’s finding of guilt” (Filippou v The Queen at [11]), and is to be reviewed by an appellate court in the same manner as a jury’s finding of guilt (Dansie v The Queen at [7]; Filippou v The Queen at [12]). While there is the obvious difference in the obligation to give reasons, those reasons are to be approached with “circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence”: Dansie v The Queen at [16].

113. Having elected to be tried by judge alone, the applicant chose to give up the advantages of trial by jury, in exchange for a trial by judge alone with the obligation to give reasons: see AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89]-[98]. However, the nature of the verdict and its review for the purposes of the unreasonableness ground are the same. The reasons, of course, may be central to an appeal on other bases.

The trial judge’s finding of grievous bodily harm

114. In order to determine whether it was open (in the relevant sense) to find that the fracture to Ella’s skull constituted grievous bodily harm, it is convenient to first consider the nature of the injury and its impact on Ella. The fracture was described in the skeletal survey as a “linear fracture of the right parietal bone extending from the coronal to the lambdoid suture”. That description is better understood by reference to the drawing done by Dr Garside in which she marked the part of the fracture on a diagram of a skull, which became Exhibit A and is reproduced below:

115. The fracture is represented by the blue line running between the markings indicating the lambdoid suture and the coronal suture. Based on its length it can be seen to be a significant fracture, although Dr Garside did indicate that more severe fractures will sometimes traverse the suture lines skull. That it could have been more extensive does not, of course, exclude the injury as amounting to grievous bodily harm: see Wick v R [2017] NSWCCA 244 at [19].

116. Dr Garside confirmed that the injury did not require surgical intervention, or indeed, any (direct) treatment at all. She said that what it did require was a period of observation to ensure that it healed properly. Dr Garside stated that the most important thing in relation to such fractures is to ensure there is no underlying brain injury. She said that “clinically that’s what you’re interested in rather than the fracture itself”. She said that in this case the CT and the MRI scans showed no underlying brain abnormality, with the result that the ordinary course was to discharge the patient with an expectation that the pain would subside over a week or two. She said that follow-ups would be required by neurosurgeons to ensure that there was not a “growing fracture”. That is, given the age of Ella and that her brain was in a period of rapid growth, it was necessary to ensure that the skull “does actually map together or stick together”. She confirmed that that did occur in this case, such that intervention was not required.

117. While the injury ultimately did not require intervention, it did require hospitalisation. Ella was not discharged from hospital until 7 November 2018. As discussed above, she was presented to hospital on 28 October 2018 with lethargy. She was observed in the early hours of 29 October at Griffith Base Hospital to be lethargic. Throughout 29 October, Ella was described as unsettled, “very sad”, and crying when touched. She was seen to be holding the right side of her head and ear with her hand. She was also keeping her eyes closed, presumably due to the eye injury. She was given paracetamol. On the morning of 30 October, she was, again, given paracetamol. It was apparent that she was still troubled by the injury to her eyes, although she was described at one stage of the afternoon as happy, interactive and showing no evidence of pain. Attempts to conduct a CT scan without anaesthetic were unsuccessful, resulting in a scan being done under general anaesthetic on 31 October. On that day she was described as less unsettled than the previous day, and separately also described as alert, responsive, happy and with no behavioural signs of pain. That evening she was observed to stir from sleep intermittently, and to pull her hands to her eyes or her blankets over her head. She was given paracetamol on one occasion. By 1 November, there was no record of any medication for pain.

118. On 2 November, consent was given for an MRI brain scan to be done under general anaesthetic. However, the neurosurgical registrar indicated that the CT images were sufficient from a neurosurgery point of view and there was no need for an MRI. An MRI was ultimately conducted for forensic purposes, according to the records, on 5 November, which indicated that there was no evidence of intracranial or intraspinal injury. Ella was discharged on 7 November. She was discharged into the care of FaCS caseworkers, with an indication in the notes that a temporary placement for Ella had been found.

119. The primary judge’s finding that the injury amounted to grievous bodily harm was expressed as follows (at [137]):

“Although it is a common simple type of fracture it was extensive from one suture to another. It resulted in internal (below the skin) bleeding. It caused lethargy and would be painful for over a week or two. A parietal skull fracture is sufficiently serious for a child to be admitted to hospital and not be discharged. They would remain in hospital until further testing had been carried out. The injury need not be permanent nor have long lasting or life-threatening consequences, nor be something requiring operative treatment. I am satisfied beyond reasonable doubt that the skull fracture was a really serious bodily injury.” (transcript references omitted)

What constitutes grievous bodily harm

120. At the relevant time, s 4 of the Crimes Act provided, in relation to grievous bodily harm:

4   Definitions

…

Grievous bodily harm includes:

(a)     the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and

(b)     any permanent or serious disfiguring of the person, and

(c)     any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

121. That inclusive definition is of no assistance in the present case. In Swan v R, Garling J provided an overview of the approach of the courts to the expression. His Honour (at [58]) noted the genesis of the accepted meaning of “really serious injury” is to be found in the speech of Viscount Kilmuir in Director of Public Prosecutions v Smith [1961] AC 290 at 334 and was adopted in Hyam v Director of Public Prosecutions [1974] UKHL 2; [1975] AC 55. As noted in JH v R at [16], the only reason that such explication is required is because of the arcane nature of the word “grievous”. Garling J (at [57]) observed that it is necessary to explain to a jury that the injury must not just be “serious”, but “really serious”, referring to R v Perks (1986) 41 SASR 335; (1986) 20 A Crim R 201. His Honour continued (at [62]-[65]):

“62   In one sense, describing “grievous bodily harm” as “really serious bodily injury” does little to elucidate the meaning of the phrase. However, the addition of the word “really” to the phrase “serious injury” does indicate that the phrase refers to injuries which are considerably more serious than those which constitute “actual bodily harm”.

63   In Haoui v R [2008] NSWCCA 209, Johnson J observed at [162] that there is no bright-line test for determining whether a particular injury or injuries constitute grievous bodily harm, a remark with which McCallum J agreed at [168]. His Honour also approved the direction given in that case to the jury that the words “grievous bodily harm”:

“… do not require that the injuries are a permanent one nor that the consequences of the injury are long-lasting or life threatening, but that they do require that the injury is a really serious one.” (sic)

64   …

65   It is clear from the authorities that in ascertaining what constitutes really serious bodily injury, questions of fact and degree are involved. In R v Overall (1993) 71 A Crim R 170, Mahoney JA (with whom Allen J agreed) considered the difference between actual bodily harm and grievous bodily harm. At 174, his Honour said:

“The difference between actual bodily harm and grievous bodily harm is … one of degree. Actual bodily harm if ‘really serious’ (cf DPP v Smith at 335; 291) may constitute grievous bodily harm. Each is ‘harm’ but the one is more serious than the other.””

122. Garling J went on to consider whether matters going beyond the physical effects of the injury, such as its economic, personal or social impact are relevant. As the examples given by his Honour demonstrate, different people may suffer very different consequences from the same injury. His Honour was of the view that the individual or subjective impacts are not relevant. Wilson J, while dissenting as to the result, adopted Garling J’s outline of the relevant law. The other member of the majority, R A Hulme J, while otherwise agreeing with Garling J, refrained from expressing a view on the issue of the relevance of matters beyond the physical effects of the injury.

Relevance of age to the assessment of grievous bodily harm

123. In the present case, an issue arises as to whether the victim’s age is to be taken into account. The first observation to be made is that the infliction of injury on a 13-month-old child involves a very high level of culpability. It is important, however, not to conflate the seriousness of the conduct (inflicting injury on a young child) with the seriousness of the result. If a person is guilty of injuring a child, it is difficult to conceive of a situation in which that will not operate as a significant aggravating feature impacting on penalty. The offender, however, is not to be doubly punished by regarding his or her culpability as aggravated, and also escalating the offence itself from a less serious offence, such as one involving actual bodily harm, to a more serious offence, such as one involving grievous bodily harm.

124. While culpability is not a relevant consideration, it remains necessary to consider whether an injury itself can be more serious as a result of the victim’s age. In the case of many injuries, age will impact the body’s capacity to repair itself with the result that an insult might be particularly concerning in an older person due to the potential for permanent damage to result. A particular injury may leave an older person immobile whereas the same injury to a younger person may see them recover in a relatively short time with no lasting effects. The harm must be assessed in the context of its effect on the particular individual. I do not understand this to be inconsistent with the view expressed by Garling J in Swan v R.

125. The above view is also consistent with the approach taken by the Court of Appeal for England and Wales, expressed in R v Bollom [2003] EWCA Crim 2846; [2004] 2 Cr App R 50. It is to be noted that in considering “grievous bodily harm”, the Court was bound by the decision of the House of Lords in Director of Public Prosecutions v Smith (see R v Bollom at [53]), which, as discussed above, is the source of the approach in this State. In deciding whether extensive bruising to a 17-month-old child amounted to grievous bodily harm, Fulford J, giving the judgment of the Court, said (at [52]):

“Mr Davies, on behalf of the appellant, at paragraph 9 of his Advice and orally before us, submits that the injuries should be assessed without reference to the particular victim. He suggests the age, health or any other particular factors relating to the person harmed should be ignored when deciding whether the injuries amounted to really serious harm. We are unable to accept that proposition. To use this case as an example, these injuries on a 6 foot adult in the fullness of health would be less serious than on, for instance, an elderly or unwell person, on someone who was physically or psychiatrically vulnerable or, as here, on a very young child. In deciding whether injuries are grievous, an assessment has to be made of, amongst other things, the effect of the harm on the particular individual. We have no doubt that in determining the gravity of these injuries, it was necessary to consider them in their real context.”

126. In referring to the “effect of the harm on the particular individual” I understand that, in the context of the age of the victim, and reading the paragraph as a whole, his Lordship was referring to the physical effect of the injuries, consistent with the view I have expressed above. R v Bollom was subsequently followed in R v Golding [2014] EWCA Crim 889 (see at [64]).

127. Here, there was particular concern based on Ella’s age, and the related fact that her brain was in a rapid growth phase, which consequently increased the risk of the bones not healing correctly. What, then, is the relevance of future risk?

Relevance of future risk to the assessment of grievous bodily harm

128. As observed in Swan v R, in the case of both “actual bodily harm” and “grievous bodily harm”, the adjectives “actual” and “grievous” describe the bodily harm occasioned. Harm, used as a noun in this context simply means injury or damage: see Macquarie Dictionary, online ed, September 2022. The concern is with the actual, (broadly) quantifiable injury. However, a presently quantifiable injury may be regarded as more or less serious based on a prognosis, which is necessarily uncertain. There appears to be little in the way of authority with respect to how one assesses potential future harm. This is in keeping with the nature of the test. That is, it is for the jury to assess the seriousness of an actual injury, based on that injury and any prognosis.

129. The absence of authority may also be, at least to some extent, explicable on the basis that the Code States of Queensland, Western Australia and Tasmania provide exhaustive definitions for the expression grievous bodily harm. [1] Victoria uses the expression “serious injury” while South Australia and the Northern Territory use the expression “serious harm”, which, in each case, is given a closed definition. [2]

     1. Criminal Code 1899 (Qld), s 1 (definition of “grievous bodily harm”); Criminal Code 1913 (WA), s 1 (definition of “grievous bodily harm”); Criminal Code 1924 (Tas), s 1 (definition of “grievous bodily harm”).

     2. Crimes Act 1958 (Vic), s 15 (definition of “serious injury”); Criminal Law Consolidation Act 1935 (SA), s 21 (definition of “serious harm”); Criminal Code 1983 (NT), s 1 (definition of “serious harm”).

130. While the definition of grievous bodily harm in the Australian Capital Territory is not in precisely the same terms as in this State, it is similar. [3] Most significantly, the definition is inclusive and, as in this State, the vast majority of cases are likely to be concerned with injuries not captured by the inclusive definition. That was the case in AA v McDevitt [2017] ACTSC 342 which involved an appeal from a conviction in the Children’s Court for an offence of recklessly inflicting grievous bodily harm. The appellant was found to have assaulted the complainant over five days, involving forceful slaps to the complainant’s face on numerous occasions, resulting in “extensive abrasions and bruising to most areas of her face, including her eyes, forehead, both sides of her face and her jaw area” (at [15]). The facial injuries were not suggested to amount to grievous bodily harm. The prosecution relied upon expert evidence to the effect that there was a potential for trauma to the head to be extremely serious and life-threatening, with potential long-term consequences including increased risk of dementia and Parkinson’s disease. There was no quantification of risk particular to the complainant. Murrell CJ said (at [53]):

“Grievous bodily harm” is concerned with “actual harm”, not potential harm. In this case, there is an increased risk that the complainant will suffer harm in the future, but the extent of the increased risk is entirely speculative. It may be arguable that a particular complainant has suffered “grievous bodily harm” where the evidence establishes that there is a moderate to high prospect of that future harm materialising, but that issue does not arise in this case.”

3. See Crimes Act 1900 (ACT), Dictionary (definition of “grievous bodily harm”).

131. As observed above, the seriousness of an injury will be informed by any prognosis, and to that extent, potential effects are relevant. However, as observed by Murrell CJ, that does not allow for a conclusion that harm is really serious based only on a speculative possibility of future harm. Actual harm must be proved, and any prognosis must be informative of that actual harm. For example, that a broken leg bone will leave a person with a 30 percent chance of a permanent limp will be highly informative of the seriousness of the break.

This case

132. The present case is, arguably, more straightforward than a case involving a risk that may or may not eventuate. When admitted to hospital, and after the fracture was revealed, there were concerns as to the possibility of intracranial bleeding. There was, however, no such bleeding and this was therefore never part of any injury occasioned. The other concern was the potential for bone displacement. The fracture fortunately resolved without intervention and thus, by the time of the trial, the impact of the injury was known, at least with respect to the serious concerns of intracranial bleeding and potential bone displacement.

133. With respect to other aspects of Ella’s presentation, it is unclear from the above history the extent to which any discomfort shown by her was related to the fracture or the injury to her eyes (or another injury). In any event, the analgesia required was fairly mild and of limited duration. With respect to the lethargy, as discussed above, while Dr Garside stated that the history provided “could be in keeping with a neurological insult, such as head trauma” as “that would result in a reduced conscious state and subsequent lethargy and irritability”, her evidence as to the connection was that she was “suspicious”. Even if connected, any lethargy or irritability not obviously related to her eyes appears to have resolved by 30 October 2018. The bruise behind the ear, if assumed to relate to the fracture, was, of itself, not of particular concern. Its importance was in its forensic significance.

134. It is additionally unknown as to whether the length of the hospital stay was impacted by the need to conduct forensic investigations such as the further MRI scan on 5 November. Moreover, while it is apparent that there were issues surrounding returning Ella to the care of the applicant and the consequent need to find alternative care, the evidence is silent as to any impact this may have had with respect to the timing of Ella’s discharge. What does appear to be clear is that hospitalisation was required at least until 2 November when the neurological registrar was satisfied with the CT images.

135. That leaves for consideration the skull fracture itself, including the fact of hospitalisation, investigation and monitoring, including the necessity to undertake a CT scan under general anaesthetic. In approaching the matter in this way, I do not mean to suggest that it is appropriate to hive off different aspects or effects of the injury, assess each aspect as minor and then ignore the cumulative effect. The total harm must be considered. (As noted above, it may have been open to the respondent to rely on a combination of injuries to establish grievous bodily harm, although in the circumstances of this case, an issue was likely to arise as to whether multiple injuries could be proved to be the result of a single assault.)

136. The need to undergo a CT scan and the consequent need for general anaesthetic relate primarily to potential harm. I say “primarily” as I do not disregard the administration of a general anaesthetic as impact resulting from the injury. The length of the hospitalisation, while still relevant as a consequence of the injury, also related to potential concerns which did not eventuate. Is it then, legitimate to find that the injury did not amount to grievous bodily harm because, in effect, it all turned out well in the end?

137. Clearly, where an injury develops over time, the relevant harm will, subject to any issue as to causation, be the ultimate harm suffered. Here, given the injury healed without incident, the ultimate harm was the fracture itself. The fact that it healed without incident does not, however, in my view, mean that, at the time of admission to hospital, it was not a “really serious injury”. It was a very significant fracture to the skull of a young child with the real, as opposed to speculative, potential to lead to a displacement of the bone. The fact that this did not occur does not mean that the injury can be assessed, and dismissed, on the basis that no long-term harm was occasioned.

138. The view expressed immediately above can be tested against the example of the fracture of the leg with a 30 percent chance of a permanent limp. There, the prospect of there being no future limp is more likely than not. However, as observed above, the risk of a limp will, nonetheless, be informative of the seriousness of the break. Here, the concerns with respect to the bones failing to knit due to the length of the fracture, Ella’s age, and perhaps more critically, her stage of development, were similarly real. It was, in these circumstances, open to find that the fracture to Ella’s skull was a harm properly described as really serious, despite the fact that some potential, more serious harm did not eventuate. Giving due deference to the role of the first instance decision-maker, I do not think that his Honour must, as distinct from might, have entertained a doubt as to whether the injury amounted to grievous bodily harm.

139. I would reject ground 2.

Orders

140. I propose the following orders:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The conviction of the applicant in the District Court on 6 November 2020 for the offence contrary to s 35(2) of the Crimes Act 1900 (NSW) of recklessly causing grievous bodily harm is quashed.

4. In lieu thereof, enter a verdict of acquittal on that offence.

141. YEHIA J: I have had the considerable advantage of reading the judgment of Dhanji J and subject to the following, I agree with his Honour.

142. In relation to Ground 1, and in oral argument, the respondent submitted that the absence of evidence in the defence case as to an alternative mechanism capable of explaining the skull fracture supports the contention that the Crown's circumstantial case was sufficient to exclude any hypothesis consistent with innocence.  In that regard, the respondent relied on The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [50]-[51].

143. The reliance on Baden-Clay is misconceived. There, the respondent gave evidence in the trial denying that he fought with his wife, killed her, and disposed of her body. The respondent's evidence did not support an alternative hypothesis consistent with innocence, namely, striking his wife in the course of a struggle and that she died as a result of a fall, or in some other manner, absent an intention to kill or cause grievous bodily harm.

144. Indeed, the respondent's evidence excluded that scenario as a reasonable alternative explanation.

145. The circumstances in this case are quite different. The onus was on the Crown from beginning to end to establish beyond reasonable doubt that the skull fracture was occasioned in the essential period. It was not for the applicant to establish that the injury was occasioned outside the essential period or to posit alternative mechanisms capable of causing the injury in the days leading up to 28 October. The central issue (in light of the way in which the Crown case was ultimately left) was whether the skull fracture was inflicted between 10:00am and 7:00-8:00pm on 28 October, the period in which it was accepted the applicant had sole care and supervision of Ella. The evidence fell short of discharging that onus for the reasons comprehensively set out in the judgment of Dhanji J.

146. For the reasons set out in the judgment of Dhanji J and the additional remarks of his Honour Beech-Jones CJ at CL, I reject Ground 2.

**********

Endnotes

Decision last updated: 19 September 2022