RMM v The State of Western Australia

[2018] WASCA 183

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   RMM -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 183

CORAM:   MAZZA JA

MITCHELL JA

HALL J

HEARD:   1 AUGUST 2018

DELIVERED          :   30 OCTOBER 2018

FILE NO/S:   CACR 204 of 2017

CACR 205 of 2017

BETWEEN:   RMM

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   MCCANN DCJ

File Number             :   IND 68 of 2016

Catchwords:

Criminal law - Appeal against conviction - Child neglect - Whether miscarriage of justice arose due to alleged incompetence of trial counsel

Criminal law - Appeal against sentence - Child neglect - Whether trial judge erred in finding, beyond reasonable doubt, that the appellant deliberately inflicted, and was responsible for, the injuries caused to the child - Ambit of s 15 of the Sentencing Act 1995 (WA) - Finding facts for the purpose of sentencing after trial - Meaning of 'recklessness' in s 101(1)(b) of the Children and Community Services Act 2004 (WA)

Legislation:

Children and Community Services Act 2004 (WA), s 28(1), s 101
Sentencing Act 1995 (WA), s 15

Result:

Appeal against conviction dismissed
Further submissions sought on appeal against sentence

Category:    B

Representation:

Counsel:

Appellant	:	Mr T F Percy QC and Mr C S Woodhouse
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Robertson Hayles Lawyers
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1.

Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425.

Craig v The Queen [2018] HCA 13; (2018) 92 ALJR 390.

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

Hall v The State of Western Australia [2018] WASCA 151.

HAS v The State of Western Australia [2005] WASCA 29.

Huggins v The State of Western Australia [2018] WASCA 61.

Law v The State of Western Australia [2009] WASCA 193.

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614.

Pelemis v The State of Western Australia [2009] WASCA 151.

PES v The State of Western Australia [2013] WASCA 202.

R v De Simoni (1981) 147 CLR 383.

R v Olbrich [1999] HCA 54 (1999) 199 CLR 270.

Rimington v The State of Western Australia [2015] WASCA 102.

Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96.

SV v The State of Western Australia [2014] WASCA 123.

Tanner v The State of Western Australia [2013] WASCA 142.

Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188.

The State of Western Australia v JWRL [2010] WASCA 179.

Table of Contents

Summary

Family relationships

Offences charged on the indictment

The State's case against the appellant

The appellant's case at trial

Evidence at trial

Evidence of School staff as to HEP's condition prior to the offence period

Evidence of School staff as to HEP's condition during the offence period

Ms Hamilton's cross-examination of School staff

Evidence of Ms McKnight

Evidence of other staff at Kalgoorlie Regional Hospital

Evidence of Dr Johnson

Evidence of HRB

Police evidence

Amendment of the indictment

Counsel's closing submissions

Prosecutor's closing submissions

Ms Hamilton's closing submissions

Trial judge's directions

Ground of appeal against conviction

General principles

Applications to adduce additional evidence in the appeal

Assessment of the evidence in the appeal

Findings of fact on appeal

Disposition of appeal against conviction

Particulars 1.1 and 1.2: instructions and advice as to central issues

Particular 1.3: limiting the defence to too narrow a ground

Particulars 1.4 and 1.5: failure to cross-examine Ms McKnight

Conclusion as to appeal against conviction

Appeal against sentence

Facts found by the trial judge in sentencing RMM

Trial judge's approach in sentencing RMM

Grounds of appeal against sentence

Fact finding on sentence: general principles

Error in finding that the appellant inflicted HEP's injuries

Disposition of appeal against sentence

Orders

JUDGMENT OF THE COURT:

Summary

1. The appellant and his de facto partner were convicted after trial of an offence of child neglect contrary to s 101(1)(b) of the Children and Community Services Act 2004 (WA) (Act). The maximum penalty for this offence is 10 years' imprisonment. The offence related to the 5‑year‑old child of the appellant's de facto partner, who was hospitalised suffering from catastrophic injuries. The appellant was sentenced to a term of 5 years' immediate imprisonment.

2. The appellant appeals against his conviction on the sole ground that there was a miscarriage of justice when the appellant failed to receive a fair trial due to the incompetence of his trial counsel.  For the reasons which follow we are not satisfied either that the appellant's trial counsel acted incompetently or that her conduct of the appellant's trial resulted in a miscarriage of justice.  We would refuse leave to appeal and dismiss the appeal against conviction.

3. The appellant also appeals against his sentence, on a number of grounds.  The appeal against sentence should be allowed on the ground that the trial judge erred in sentencing the appellant on the basis that he had inflicted the catastrophic injuries.  Sentencing the appellant on that basis involved punishing him for an offence of which he had not been convicted.  Further, it was not open on the evidence for the trial judge to be satisfied of that fact beyond reasonable doubt.

4. Therefore, the appeal against sentence must be allowed and the sentence imposed by the trial judge set aside.  We would hear from the parties as to whether this court should proceed to resentence the appellant, and if so on what factual basis, or whether the matter should be remitted to the trial judge to find the relevant facts.

Family relationships

1. In order to protect the identity of the child who is the alleged victim of the charged offences, it has been necessary to anonymise the references to many of the persons involved in the events with which the charges are concerned. 

2. The child will be referred to as HEP, his mother as KYB and the appellant as RMM. 

3. KYB has three children to a relationship with a former partner, who will be referred to as RP.  RP lived in Queensland at the time of the alleged offences.  The children of KYB and RP are:  HEP (who was about 5 years old at the time of the offences), his brother JBP (who is about a year older) and his younger sister KRP (who is about a year younger). 

4. RMM has two children to a former relationship, TM who was about 11 years old at the time of the alleged offences and his younger brother AM.  RMM's sons lived with their mother in Kalgoorlie, and would visit RMM from time to time.

5. At the time of the alleged offences, RMM and KYB lived with KYB's children at a house in Kalgoorlie, which will be referred to as the House.  The three children all attended the same primary school in Kalgoorlie, which will be referred to as the School.  JBP was in year one, HEP in pre-primary and KRP was in kindergarten.

6. Staff at the School will be referred to by the positions which they held at the School.

7. HEP's maternal grandmother (KYB's mother) will be referred to as HRB.  She also lived in Kalgoorlie at the relevant time.  KYB's children would often stay overnight at HRB's house.

8. RMM and KYB commenced a relationship in early 2016 and became a de facto couple, moving in together to live at the House.  In April 2016, KYB fell pregnant to RMM.

Offences charged on the indictment

1. RMM and KYB were jointly tried on an indictment charging two offences against s 101(1)(b) of the Act. RMM and KYB were charged jointly with count 1. Count 2 only related to KYB, in respect of an offence committed on 17 June 2016.

2. Section 101 of the Act provides:

   (1)A person who has the care or control of a child and who engages in conduct -

   (a)knowing that the conduct may result in the child suffering harm as a result of any one or more of the following -

   (i)physical abuse; or

   (ii)sexual abuse; or

   (iii)emotional abuse as defined in section 28(1); or

   (v)neglect as defined in section 28(1);

   or

   (b)reckless as to whether the conduct may have that result,

   is guilty of a crime, and is liable to imprisonment for 10 years.

   (2)In subsection (1) -

   engage in conduct means -

   (a)to do an act; or

   (b)to omit to do an act;

   harm has the meaning given to that term in section 28(1).

3. Section 28(1) of the Act defines 'harm' and 'neglect' in the following terms:

   harm, in relation to a child, means any detrimental effect of a significant nature on the child's wellbeing, whether caused by -

   (a)a single act, omission or circumstance; or

   (b)a series or combination of acts, omissions or circumstances;

   neglect includes failure by a child's parents to provide, arrange, or allow the provision of -

   (a)adequate care for the child; or

   (b)effective medical, therapeutic or remedial treatment for the child.

4. The State did not allege that RMM was the 'parent' of HEP for the purposes of the definition of 'neglect'.  That would have required it to establish at least that RMM at law had the responsibility for 'the day‑to‑day care, welfare and development of' HEP.[1]  However, as the definition of 'neglect' is inclusive rather than exclusive, an allegation of neglect could still be based on a failure by a person other than a parent to provide things such as adequate care and effective medical treatment.

   [1] See s 3 of the Act (definition of 'parent').

5. Section 101(1)(a) and (b) distinguish between engaging in conduct 'knowing' that the conduct may result in harm to a child, and engaging in conduct 'reckless' as to whether the conduct may have that result. In s 101(1), the word 'reckless' connotes that the accused wilfully or deliberately shut his or her eyes to, or excluded from contemplation, whether the alleged conduct may result in the child suffering harm of the kind specified in s 101(1). If an accused has actual foresight or actual awareness that his or her conduct may result in a child suffering harm as a result of abuse or neglect of the kind specified in s 101(1), then he or she will have engaged in that conduct knowing that the conduct may have that result.[2]

   [2] Under s 101(1)(a) of the Act: see PES v The State of Western Australia [2013] WASCA 202 [20] - [24].

6. Prior to amendment, count 1 charged that, between 1 June 2016 and 16 June 2016 at Kalgoorlie, KYB and RMM, being persons having the care or control of HEP, engaged in conduct reckless as to whether such conduct may have resulted in HEP suffering harm as a result of neglect as defined in s 28(1) of the Act. In that manner the indictment charged an offence against s 101(1)(b), read with s 101(1)(a)(v) of the Act. The indictment did not charge RMM or KYB by reference to the 'physical abuse' limb of s 101(1)(a)(i) of the Act.

7. Count 2 was a charge expressed in materially the same terms against KYB only, alleging an offence on 17 June 2016 at Kalgoorlie.

8. In the manner in which the case was put against RMM, the offence would be established if the State proved, beyond reasonable doubt, that between 1 and 16 June 2016:

   (1)RMM had the care or control of HEP;

   (2) HEP was a child;

   (3)RMM omitted to provide or arrange adequate care (in the form of clothing and food) or effective medical treatment for HEP; and

   (4)RMM was reckless as to whether that omission may result in HEP suffering harm as a result of neglect. 

9. As discussed at [102] - [105] below, the indictment was amended during the course of the trial so that the offence with which RMM was charged was alleged to have occurred between 1 and 17 June 2016.

The State's case against the appellant

1. The State's case was that staff at the School observed HEP deteriorate throughout the 2016 school year, particularly during June 2016.  They observed HEP picking up and eating scraps of food discarded by other students, come to school covered in mosquito bites on one occasion and regularly appear to be cold because he was inadequately dressed.  HEP came to school with bruising on his face on more than one occasion from 1 June 2016.[3]

   [3] Trial ts 114 - 115.

2. On Friday, 10 June 2016 HEP had a severe dose of diarrhoea at the School.  After the School was unable to contact his mother KYB, his grandmother HRB was called to take HEP home.  The following week, HEP did not attend the School on Tuesday or Thursday, and was listless and lethargic when he was at school.[4]

   [4] Trial ts 115.

3. Just after 9.30 am on Friday, 17 June 2016, KYB attended the Kalgoorlie Regional Hospital with HEP, who on presentation at the emergency department was not breathing, had no heartbeat and was completely unresponsive.[5]

   [5] Trial ts 111 - 112.

4. The State's case was that RMM was the stepfather of HEP.  Although he had no biological relationship with HEP, he stood in a parental relationship with HEP and, thereby, assumed the care and control of the child.  The prosecutor indicated that count 1 (which charged both KYB and RMM) involved both RMM and KYB from the time staff at the School first observed bruising on HEP's face up until the day before he was hospitalised.[6]  Count 2 was brought against KYB alone and related to her behaviour on the morning of 17 June 2016 and her failure to see that HEP got to the hospital in a timely way.[7]

   [6] Trial ts 116.

   [7] Trial ts 117.

5. After referring to the statutory provision, the prosecutor said:[8]

   The failure to seek help or treatment for a child who needs help or treatment can amount to engaging in conduct.  And if that conduct has the result of placing the child at risk of harm and the person who failed to act was reckless about the possibility of that occurring, they can be guilty of this offence.

   [8] Trial ts 117.

6. After referring to the case against KYB on count 2, the prosecutor said:[9]

   In this case, you will hear a lot of evidence about the deterioration of HEPs condition over a period of time, about teachers and school staff seeing bruising on his face, about his hunger, about him being cold and inadequately dressed, about him suffering from diarrhoea and vomiting which appeared to endure over a number of days. Medical evidence about the likelihood that injuries were deliberately inflicted and, all the while, HEP was living at his family home …, with his brother and sister and with only two adults at that home, his mother, KYB, and his stepfather, RMM.

   [9] Trial ts 119.

7. The prosecutor indicated that the jury may find that the failure by KYB and RMM to seek any form of medical treatment for HEP until the morning of 17 June 2016 was conduct which may have resulted in HEP suffering harm.[10]

   [10] Trial ts 119.

The appellant's case at trial

1. RMM was represented at trial by Ms Hamilton.  She gave a brief opening statement.  After referring to some general matters, Ms Hamilton said:[11]

   You will need to be satisfied beyond reasonable doubt that my client, RMM, was a person who did have the care and control of the small child, HEP, and that he recklessly engaged in conduct that may have resulted in HEP suffering harm as a result of neglect. His Honour will give you some directions at the end of this trial as to what that word 'recklessly' means at law. In considering whether RMM (a) had the care and control, or control and (b) engaged in conduct, you're going to have to form a view of the nature of the relationship between he and HEP's mother, his co-accused, KYB, and the responsibilities, if any, he had towards parenting her children and, in particular, HEP.

   [11] Trial ts 121.

2. Ms Hamilton conceded that RMM was in a de facto relationship with KYB and they lived at the House.  Ms Hamilton then said:[12]

   In considering the nature of the relationship between KYB and RMM and his relationship with her children I ask you to pay particular attention to the evidence of those who taught HEP or interacted with him at school and what interactions they had with his mother, KYB, and if they had any with RMM.

   [12] Trial ts 121 - 122.

Evidence at trial

1. The following is a summary of the evidence at trial which was admissible against RMM.

Evidence of School staff as to HEP's condition prior to the offence period

1. HEP's Class Teacher described meetings she had with KYB in the first term of 2016, regarding developmental concerns which the Class Teacher had about HEP.[13]  She described HEP appearing to be cold and underdressed in the winter months,[14] picking up scraps of food from other children,[15] and coming to school with mosquito bites in late April or early May.[16]  The Class Teacher described her interactions with KYB and HRB, but did not mention interacting with RMM.

   [13] Trial ts 252 - 253.

   [14] Trial ts 254 - 255.

   [15] Trial ts 255 - 256.

   [16] Trial ts 256 - 257.

2. The School Principal gave evidence of a discussion he had with KYB in the pre-primary playground in around February 2016 about mosquito bites observed on JBP and HEP.  At that time there was a man with her who was about 10 - 15 m away and who was not part of the conversation.  The man appeared to be distracted.[17]

   [17] Trial ts 181 - 183.

3. A Relief Teacher said that she observed HEP to be insubstantially dressed and cold during winter months,[18] and had seen HEP picking up scraps of food on the veranda and eating them.[19]  Evidence to the same effect was given by the Education Assistant in HEP's class, who also described HEP eating any food left in a fruit bowl, taking scraps from the floor and taking food from other children's lunchboxes.[20]  The Education Assistant also observed HEP covered in mosquito bites in the first term.[21]  A staff member from another class also described HEP's cold and hungry state.[22]

Evidence of School staff as to HEP's condition during the offence period

[18] Trial ts 190 - 191.

[19] Trial ts 193.

[20] Trial ts 214 - 216.

[21] Trial ts 222.

[22] Trial ts 230 - 233.

1. On Wednesday, 1 June 2016, the Deputy Principal of the school observed HEP, who looked sad and forlorn, with a 2 - 3 cm bruise on his left cheek.[23] The Education Assistant from HEP's class also observed this bruise,[24] and subsequent bruising on HEP's face.[25]  The bruise was also observed by other staff members.[26]

   [23] Trial ts 125 - 126.

   [24] Trial ts 216 - 217.

   [25] Trial ts 217 - 218; 220 - 221.

   [26] Trial ts 233 - 234, 241.

2. The Relief Teacher also described seeing bruising on HEP's face at about this time.[27]  The Relief Teacher indicated that HEP nodded when asked if 'Dude' (HEP's nickname for RMM) was responsible.[28]  The Relief Teacher also described discussions she had had with KYB at about this time.[29]

   [27] Trial ts 191.

   [28] Trial ts 192.

   [29] Trial ts 193 - 196.

3. On Friday, 10 June 2016, the Class Teacher returned from a period of leave.[30]  On that day HEP was collected from school and went home sick after experiencing diarrhoea.[31]

   [30] Trial ts 258.

   [31] Trial exhibit 2A; trial ts 220, 258 - 259.

4. HEP attended the School on Monday, 13 June 2016.[32]  The Class Teacher saw a large bruise on HEP's forehead which she had not observed before.[33]   She also observed HEP to be sick and lethargic after lunch on that day, and sent him to rest in a corner of the classroom until he was collected by KYB at the end of the school day.[34]

   [32] Trial exhibit 2A, trial ts 132.

   [33] Trial ts 259. 

   [34] Trial ts 260 - 261.

5. HEP was absent from the School on Tuesday, 14 June 2016.[35]

   [35] Trial exhibit 2A, trial ts 132, 261 - 262.

6. The Education Assistant recalled seeing HEP upset, cold and lethargic on one of the days he attended school in this week.[36]

   [36] Trial ts 221 - 222.

7. On Wednesday, 15 June 2016, the Class Teacher observed HEP to be crying with what appeared to be finger mark bruises on his face.[37]  A teacher's assistant brought HEP to the Deputy Principal's office with bruising on both sides of his face and skin off under his nose, and a photograph of the injury was taken.[38]  There was evidence that HEP, when asked by the Deputy Principal who had done this, said that 'Dude bit me'.[39]  However, that evidence was not tendered as evidence of the truth of the fact that RMM had caused the injuries.[40]  The Principal of the School also observed the injuries.[41]  HEP appeared to the Class Teacher to be in a better frame of mind on his return to class,[42] but was observed to be unwell and asleep in the classroom in the afternoon.[43]

   [37] Trial ts 263.

   [38] Trial ts 126 - 129, 242 - 243; trial exhibit 1.

   [39] Trial ts 127.

   [40] Trial ts 136 - 137.

   [41] Trial ts 184 - 185.

   [42] Trial ts 264.

   [43] Trial ts 243 - 244, 264.

1. HEP did not attend the School on Thursday, 16 June 2016.[44]

Ms Hamilton's cross-examination of School staff

[44] Trial exhibit 2A, trial ts 132, 264.

1. In cross-examination, Ms Hamilton elicited evidence from the Deputy Principal of the School as to concerns which staff had about HEP in 2015 and May 2016, and her discussions with KYB and HRB about those concerns.[45]  The Deputy Principal agreed that RMM was not involved in those discussions.[46]

   [45] Trial ts 143 - 144.

   [46] Trial ts 144.

2. Ms Hamilton elicited from the Principal of the School that School staff met with KYB and HRB to discuss concerns about HEP in 2015, but no man attended the meeting.[47]

   [47] Trial ts 186 - 187.

3. Ms Hamilton cross‑examined the Class Teacher in relation to her interactions with KYB and HRB in relation to HEP's difficulties at school.[48] Under cross‑examination, the Class Teacher said that she had never seen or spoken to RMM,[49] and that, as far as she was aware, RMM was not listed as an emergency contact for HEP on the school records.[50]

   [48] Trial ts 276 - 279.

   [49] Trial ts 278.

   [50] Trial ts 279.

4. Ms Hamilton elicited from the Education Assistant that she regularly engaged with KYB and HRB at the School, but had never met RMM.[51]

   [51] Trial ts 228 - 229.

5. Ms Hamilton cross‑examined the Relief Teacher referred to at [36] above about her evidence as to her discussions with HEP as to whether 'Dude' inflicted the injuries observed in early June.[52]

Evidence of Ms McKnight

[52] Trial ts 202 - 205.

1. Ms McKnight was working the morning shift as triage nurse at Kalgoorlie Regional Hospital on Friday, 17 June 2016.[53]  She described HEP being carried by his mother into the emergency department in an unresponsive state.  HEP was not breathing and it appeared that he had no heartbeat.[54]  She described the resuscitation of HEP by medical staff, during much of which she was the 'scribe' responsible for recording a timeline of events that happened during the resuscitation.[55]  Ms McKnight said that HEP appeared very underweight for his age.[56]

   [53] Trial ts 148.

   [54] Trial ts 148 - 149.

   [55] Trial ts 150.

   [56] Trial ts 151.

2. Ms McKnight's evidence was that RMM arrived about 5 ‑ 10 minutes after HEP.  He did not appear to be upset, crying or angry, or to be 'overly rushed' to find out about HEP's condition.[57]  Ms McKnight said that she spoke to RMM quite quickly when he came in, and RMM said:[58]

   he had found that the child had been unwell and that he kept him home from school and he had gone into his bedroom to check on him and when he went to check on him he noticed that he had been incontinent with urine, so he gave him a little shake to try to wake him up and then he had been incontinent with faeces and then he said they put him in the shower. (emphasis added)

   [57] Trial ts 153 - 154.

   [58] Trial ts 154.

3. Ms McKnight said that RMM told her that he was the one who checked on HEP that morning, but didn't say when.[59] 

   [59] Trial ts 154.

4. The following exchange then occurred between the trial judge and Ms McKnight:[60]

   [60] Trial ts 155.

   Did he actually use the expression 'incontinent of urine' …---No. That's my own words.  He basically said he wet himself and then he told me that he had shat himself after that.

   Shat himself?---After we shook him, yes.

   All right. So just to clarify the timeline, this man said that he had gone in to check on the child?---Mmm.

   Discovered that the child had peed himself in the bed?---Yes.

   And then the man said that he gave the child a shake; is that so?---Yes.

   And did he describe how it was that he shook the child?---He didn't describe that, but I - because I was asking him questions at the same time to try and get a history.  Was the child awake, was he breathing at the same time when he said he gave him a shake, and then he shat himself.

   All right. Did he say why it was that he shook the child after discovering the child had peed himself in the bed?---He didn't say why it was, but I - my assumption was that he shook the child to try and wake him up.

   All right. And then just to ensure that we've got this timeline correct; the man then said that after shaking the child, the child shat himself?---Yes.

   All right. And then I think you said that the man said that he had done something with the child after the child was incontinent of faeces?---… he said that they would - he went to clean up the child and then put him in the shower.  (emphasis added)

5. Ms McKnight gave evidence that RMM told her that the child was breathing in an abnormal, gasping, manner.[61]  RMM told her the child was under the shower for around 20 minutes, that he had a discussion with his partner.[62]

   [61] Trial ts 155 - 156.

   [62] Trial ts 156 - 157.

6. Ms McKnight had minimal interaction with RMM and KYB after taking the initial history, but observed them conversing away from the child.[63]

   [63] Trial ts 161 - 162.

7. Under cross‑examination by counsel for KYB, Ms McKnight gave the following evidence as to her discussion with RMM:[64]

   [64] Trial ts 168.

   And he said that the - the child had been generally unwell prior - prior to this happening. Is that right?---So I don't (indistinct) that he would have used those exact words.  He just said that the kid had been unwell.

   That's right. And he also said that he had - he had gone - or went to the bedroom - went to the child's bedroom?---I'm sorry?

   And the child had wet himself?---That's right.

   And he tried to stir him by - by shaking him?---That's right.

   And then after that he - he said 'the child had shat himself'?---That's right.

   Yes. And he went to clean up the child by putting him in the shower?---Correct.

   And you said some things about that. And - and I think you said that after that he had a discussion with his partner?---Yes.

   And they decided to bring the child to the hospital?---Yes.

   (emphasis added)

8. Ms Hamilton did not cross-examine Ms McKnight.[65]

Evidence of other staff at Kalgoorlie Regional Hospital

[65] Trial ts 169.

1. Another nurse, Ms Edwards, described HEP's arrival at Kalgoorlie Regional Hospital and his condition and treatment at that time.[66]  She observed multiple bruises around his jaw and mouth.[67]  She saw a woman who she assumed was the boy's mother come with him to the hospital, and a man arrive 2 - 3 hours later.  The woman was initially distressed on arrival.  However, an hour or so later, Ms Edwards observed that neither the woman nor man appeared distressed.[68]

   [66] Trial ts 334 - 336.

   [67] Trial ts 336 - 337.

   [68] Trial ts 337.

2. Ms Maynard was the acting clinical nurse manager of the emergency department and high‑dependency unit at Kalgoorlie Regional Hospital.  She described HEP's arrival, his resuscitation, and KYB's distressed state.[69]  She saw a male appear later on, but did not have any interactions with him or see his emotional state at that time.[70]  Ms Caliskan, another registered nurse, gave evidence as to the resuscitation of HEP, but did not describe any significant interaction with or observation of RMM.[71]

   [69] Trial ts 359 - 361.

   [70] Trial ts 361.

   [71] Trial ts 418 - 421.

3. Dr Werner was the emergency doctor on duty when HEP was brought into Kalgoorlie Regional Hospital by KYB at about 9.39 am on 17 June 2016.[72]  Dr Werner observed HEP to be non-responsive, not breathing and with no pulse.  Staff commenced immediate cardiopulmonary resuscitation on the child.[73]  It took about 20 minutes to resuscitate the child, and 45 minutes to stabilise him.[74]  A CT scan was then taken which showed a subdural haemorrhage (bleeding around the brain) and evidence that his brain was swollen.[75]  A transfer to Princess Margaret Hospital was then arranged.[76]

   [72] Trial ts 343.

   [73] Trial ts 343.

   [74] Trial ts 345.

   [75] Trial ts 346.

   [76] Trial ts 346 - 347.

4. Dr Werner described her interactions with KYB and HRB,[77] gave evidence as to the reflex response of putting hands out on falling and the criticality of time when a child becomes unresponsive if brain injury is to be avoided.[78] 

   [77] Trial ts 347 - 349.

   [78] Trial ts 347 - 350.

5. Dr Werner gave evidence that the three possible causes of subdural haematoma were trauma (which is the overwhelming major cause), pre‑existing medical conditions and the use of drugs.  The absence of anything to suggest that a pre-existing medical condition or drugs were involved, together with the bruises observed on HEP's face, led Dr Werner to conclude that the most likely cause of HEP's subdural haematoma was trauma.[79]

   [79] Trial ts 357.

6. Ms Hamilton cross-examined Ms Edwards, Ms Maynard and Dr Werner about the removal of HEP's clothing during the resuscitation process,[80] and Dr Werner about the fact that HEP was not weighed at the hospital, although his weight was estimated.[81]  She did not cross‑examine Ms Caliskan.[82]

   [80] Trial ts 342, 356, 363.

   [81] Trial ts 356.

   [82] Trial ts 422.

7. Dr Hagan is a doctor specialising in general paediatrics who was working at the Kalgoorlie Regional Hospital and responded to a call from the emergency department for assistance in resuscitating HEP at about 9.40 am.[83]  He gave evidence that the CT scan showed a diffuse subdural haemorrhage which was pronounced over the right parietal region.[84]  His evidence was that trauma and (much less commonly) infection were causes of this condition.  He noted bruising on HEP's face, which was an unusual location for accidental bruising due to the instinctive reflex to put hands out in front to protect the head when falling.[85]

   [83] Trial ts 365 - 366.

   [84] Trial ts 367.

   [85] Trial ts 368 - 370.

8. Dr Hagan described the history given to him by RMM and KYB in the following terms:[86]

   They stated that he had had intermittent vomiting and diarrhoea for approximately one week and they said that they found him in bed this morning and he had been incontinent of both bowels and bladder, which is obviously very atypical for him and atypical for most five year olds. They then said that he dropped to the ground and became limp, at which point they took him to the shower to clean him off, but at no point did they say, when asked, that [HEP] was responsive during this time.  It's (indistinct) the stepfather said that he found him and it was unclear to me as to when mother became aware of his condition. They said that they then dressed him and drove him to the hospital in a car, and they described his breathing as very raspy during that time…  There … was no history of a trauma to begin with, but when directly questioned about the bruises on his face, the stepfather reported that [HEP] had been falling over frequently.

   [86] Trial ts 370 - 371.

9. Dr Hagan said that blood tests revealed a lower than expected blood pH, due to his retaining carbon dioxide because he was not breathing fast enough, and slightly elevated lactate (which was a common marker of stress in the body).[87]  HEP's bicarbonate levels were normal and his sodium level was at the lower end of normal, which was atypical for diarrhoea so severe as to cause a collapse.[88]  Dr Hagan said that it was extremely rare for diarrhoea to get to that stage, and would generally speaking take more than a week.[89]

   [87] Trial ts 371.

   [88] Trial ts 372.

   [89] Trial ts 372.

10. Dr Hagan gave evidence to the effect that, unusually for parents, RMM did not display any grief and he couldn't recall any significant grief from KYB.  Dr Hagan said:[90]

    in this case, when it was quite clear that this was a serious illness, and that he was having chest compressions and people were breathing for him, they - the stepfather seemed more intent on finding out what we thought it was, rather than finding out whether the child was getting better or not, and he was particularly interested in hearing the results of the head CT. I distinctly recall him coming and standing next to me while I was receiving a phone call from the radiologist to give me the result of the subdural, and he was - asked a number of questions about - about that bleed and what it meant.

    Was it a typical behaviour?---It's quite hard to put your finger on how it feels slightly off. Usually, there's - there's a wide variety of grief responses and everyone handles stress differently, but it, certainly - he just didn't seem to be that engaged with anything that was happening to [HEP].  He just wanted to know the results and what they meant, but it, really, didn't seem like he - he displayed a lot of concern for what was happening with [HEP] on the table at the time.

    [90] Trial ts 373 - 374.

11. Dr Hagan said that subdural haemorrhage could be caused by direct trauma (which was excluded by his examination and the CT scan of HEP's skull), asphyxiation (although ligature marks sometimes appear with choking) and shaking.[91]

    [91] Trial ts 376.

12. Ms Hamilton cross‑examined Dr Hagan about his discussions with RMM,[92] including by the following exchange:[93]

    And do you recall if the person who you're referring to as the stepfather said to you that - or to some other member of the team - that the child was responsive when he first walked into the room - - -?---I believe he did say something along those lines, yes.

    - - - and that the child got out of bed?---As I recall, he said he helped the child get out of bed and then [HEP] collapsed.

    Right. Did he say that the child got out of bed, he noticed that he was incontinent of urine - not his words, yours - and then he smelled poo?--- I don't recall the exact phrase that he used, but he basically said something along the lines of, you know, that he had wet himself, soiled himself, pooed himself.

    And after he's saying to you that he has made those observations, he goes on to indicate that the child dropped down to the ground in a seated position?---That sounds about right.

    And at that point in time, he then takes the child to the shower to clean the poo off him?---Yes.

    And did he tell you how long the child was in the shower for before the child collapsed?---No. He - he didn't give me a time.

    [92] Trial ts 384 - 385.

    [93] Trial ts 385.

13. Ms Hamilton also asked Dr Hagan whether, if HEP had consumed Ratsack (warfarin), it would have shown up on his presentation.[94]

    [94] Trial ts 386 - 386.

14. Dr Venettacci, who was a resident medical officer at Kalgoorlie Regional Hospital, gave evidence which was consistent with that given by Dr Hagan.  He was not cross‑examined by Ms Hamilton.[95]

Evidence of Dr Johnson

[95] Trial ts 390 - 399.

1. Dr Johnson, a consultant paediatrician and head of department in the Child Protection Unit at Princess Margaret Hospital,[96] was called by the State.  She referred to notes as to HEP's presentation and resuscitation at Kalgoorlie Regional Hospital, including the CT scan which showed bilateral subdural haematomas and some cerebral oedema (brain swelling).[97] 

   [96] Trial ts 459.

   [97] Trial ts 464 - 465, 495.

2. Dr Johnson referred to photographs of HEP showing his bruised face.  In the course of commenting on those photographs, Dr Johnson observed that the cheek and jawline were relatively unusual sites for accidental bruising.  She described the bruising as quite significant and fairly extensive, such that it would be reasonable to seek medical attention out of concern for an underlying brain injury.[98]  Dr Johnson said that the bruises could not be aged with any accuracy, but indicated that HEP had sustained blunt force trauma to his face.  The small circular bruises were suggestive of 'fingertip type bruises'.[99]

   [98] Trial ts 472 - 474.

   [99] Trial ta 475.

3. Dr Johnson's evidence was that the facial bruising was 'highly suspicious for inflicted injury',[100] as were the brain injuries.[101]  Dr Johnson said that subdural haematomas are caused, almost always, by trauma, either blunt force trauma or rotational injury as occurs when the head of a baby or small child is shaken.[102]  While the latter injuries were unusual in a 5‑year‑old child, they were not unheard of.  The risk was slightly dependent on the child's size (noting that HEP's weight was below the third percentile for a child his age).[103]

   [100] Trial ts 501 - 502.

   [101] Trial ts 503.

   [102] Trial ts 503 - 504.

   [103] Trial ts 505.

4. Dr Johnson gave evidence that an examination performed on 20 June 2016 showed bilateral optic disc swelling and retinal swelling, of which the only relevant common cause was inflicted head trauma.[104]  Dr Johnson was of the view that these injuries were 'most likely the result of abusive head trauma, but there are other possibilities'.[105]

   [104] Trial ts 493.

   [105] Trial ts 506.

5. An MRI scan conducted on the same day showed HEP had severe hypoxic ischemic injury, meaning that his brain had been deprived of oxygen and blood.[106]

   [106] Trial ts 496.

6. Dr Johnson was not able to say with any accuracy when any abusive head trauma would have been inflicted prior to HEP's admission into hospital.  She said that the CT scan showed the subdural haematomas were recent and most likely occurred within 2 - 3 days.  Dr Johnson said that it was very unlikely that HEP was walking around with those subdural haematomas in the days leading up to his admission.  It was much more likely that something happened on the morning of, or the night before, his admission to cause his brain injuries and reduced consciousness level.  It was very unlikely that it occurred before the photo was taken at the School on Wednesday, 15 June 2016.[107]

   [107] Trial ts 509 - 510.

7. Dr Johnson gave evidence as to the effects of the injury, which ultimately rendered HEP a quadriplegic with very little motor movement, unable to speak and unable to eat so is fed via a tube into his stomach.  He was totally dependent on others for all his needs, and it was unlikely that he would make significant further progress in the future.[108]

   [108] Trial ts 500 - 501.

8. Ms Hamilton cross‑examined Dr Johnson, whose answers were to the following effect:

   (1)Bruises are very difficult to date or age.[109]

   (2)A forceful grip to a child's jaw without any further forceful motion of the heard would not be sufficient to cause a subdural haematoma, but could be sufficient if accompanied by shaking.[110]

   (3)It would have been possible for HEP's subdural haematoma to have occurred prior to 16 June 2016, but it was necessary to consider the appearance of the haemorrhages on the imaging and how HEP was clinically.  It was unlikely that HEP would be walking around and going to school with that amount of bleeding in his head.[111]

   (4)There was no evidence of any observable external injury to HEP's scalp or skull which might indicate blunt force trauma which was causative of the subdural haematoma.[112]

   (5)Greater forces would be required to shake the head of a bigger heavier child (as compared to a baby) and produce a subdural haematoma.[113]

   (6) If greater forces were used, it would not necessarily be expected that bruises other than those shown on the photographs would be observable after HEP's admission to hospital.[114]

   [109] Trial ts 525.

   [110] Trial ts 525.

   [111] Trial ts 526.

   [112] Trial ts 526.

   [113] Trial ts 526 - 527.

   [114] Trial ts 527.

9. The trial judge also asked Dr Johnson a series of questions, including the following:[115]

   Now, would I be correct in putting it to you that the evolution of these symptoms might be dictated by the amount of bleeding that's occurring and the speed of the bleeding? So a slow leak might manifest itself less dramatically and over a longer period of time than a major rupture?---Yes.

   Okay?---I would agree with that.

   Well, that brings me to the real question. I still don't understand how a subdural haemorrhage could cause you to stop breathing?---I think that is - that is a difficulty here which we don't know because sometimes if subdural haemorrhaging is very large, it causes significant pressure effects in the brain and you become ill very quickly. That wasn't the case here. They were relatively thin. So - but what the scans did show was brain swelling and the MRI showed evidence of the hypoxic ischaemic injury to the middle of the brain we talked about, the basal ganglia.  Now, that would certainly be enough to stop you breathing.  But what we don't know is whether that occurred purely as a result of him stopping breathing.  … We don't know ... whether his brain was starved of oxygen before he stopped breathing and that's why he stopped breathing or whether those changes were purely as a result of the cardiorespiratory arrest. We don't know.

   [115] Trial ts 530.

1. Dr Johnson later put forward the following 'possible scenario':[116]

   [W]hat we know is that [HEP] has sustained trauma to his head and that - and that is evidenced by the subdural haematomas. We don't know what type of trauma, but we know that he has sustained trauma.  So my thinking is that he sustained some kind of trauma to his head which caused the subdurals and probably some injury to the brain itself which caused his conscious level to be reduced.  And we know that on the Friday morning his - he had a reduced conscious level.  Then when he was put in the car - and this is a - this is a child with a reduced conscious level who is floppy. It was reported to us that his head flopped down and he then went blue. I think at that time he obstructed his airway and that's why he stopped breathing.  … The loss of consciousness is due to the brain injury… [a]nd he stopped breathing because he obstructed his airway because he was floppy and, you know, semi-conscious.  … That's a theory…It might explain it, but I don't know exactly what happened.

Evidence of HRB

[116] Trial ts 531 - 532.

1. HRB gave evidence that she was the mother of KYB and the grandmother of JBP, HEP and KRP, whose father was RP.  RP had separated from KYB when KRP was 4 months old and was in Queensland at the relevant time.  HRB said that she was also the grandmother of the child born to KYB and RMM in January 2017.  She described the relationship between RMM and KYB, which began some time prior to May 2016.  KYB and RMM lived with KYB's three children at the House from sometime before May 2016.[117]  The children called RMM 'Dude'.[118]

   [117] Trial ts 283 - 287.

   [118] Trial ts 294.

2. When they were living at the House, KYB and her children would regularly come to HRB's house on Thursday night for tea, and the children would stay overnight.  HRB would take the children to the School and collect them from the House after she finished work on Friday.  After they slept with her overnight on Friday, she would return the children to KYB at about 5.00 pm on Saturday.[119]

   [119] Trials ts 288 - 289.

3. HRB described three incidents when she observed HEP at the House.  On one occasion, she saw RMM stand on HEP's bare feet and push his head down when HEP was going to go outside without shoes.[120]  On another occasion she observed HEP at the doorway to his bedroom with a fearful look in his eyes.[121]  On a third occasion, she described RMM placing and leaving HEP on top of a freezer, and not assisting when HEP asked for help to get off.[122]

   [120] Trial ts 290.

   [121] Trial ts 290 - 291.

   [122] Trial ts 291 - 292.

4. HRB said that, a couple of weeks prior to 17 June 2016, she observed bruising on one side of HEP's face.[123]

   [123] Trial ts 292.

5. On Friday, 10 June 2016, HRB collected HEP from the School after he had a loose bowel action, took him to KYB and returned to work.  She collected JBP and HEP after work that evening.  HEP vomited in the car on the way to HRB's house.  HRB showered HEP and noted that he looked skinny.  She weighed him at 15 kg.[124]

   [124] Trial ts 295 - 296.

6. On Saturday 11 June 2016, HEP had another loose bowel motion early in the morning.  HRB took the boys to JBP's soccer game, and dropped them off at the House at about 5.00 pm.[125]

   [125] Trial ts 296.

7. HRB saw HEP at the School on Monday, 13 June 2016, and did not notice any fresh bruises.[126]

   [126] Trial ts 297.

8. On Wednesday, 15 June 2016, HRB observed bruising on the other side of HEP's face when she was assisting at the School at recess time.  This was the last time she saw HEP before his hospitalisation.[127]

   [127] Trial ts 293, 298.

9. On Thursday, 16 June 2016, KYB came to HRB's house with JBP and KRP at the usual time of between 5.30 pm and 6.00 pm.  She understood that HEP stayed at the House with RMM because he was unwell.  KYB left at about 9.00 pm.[128]

   [128] Trial ts 298 - 299.

10. HRB arrived at Kalgoorlie Regional Hospital at about 9.40 am on 17 June 2016, after receiving a text from KYB.[129]  She described the following conversation with RMM while HEP was having x‑rays:[130]

    [RMM] said that he had put [HEP] into [JBP's] room which was closer to the fire, because [HEP] was cold.  He went in to check on him in the morning - Friday morning and noticed that he had wet himself.  So he said he was in the process of telling [HEP] off, when he collapsed like he just was sitting down, but he collapsed.  So he bent down to pick him up, noticed that he had piddled himself, and so he took him to the shower.

    Okay. And did he say anything about what happened after he took him to the shower?---After he showered him, he took him in to [KYB], who was still in bed.

    [129] Trial ts 300.

    [130] Trial ts 301.

11. HRB said that KYB was the only family member who went with HEP to Princess Margaret Hospital.[131]  RMM went to the House to get some items for KYB, and HRB could not recall whether he had returned before she left Kalgoorlie Regional Hospital.[132]

    [131] Trial ts 302.

    [132] Trial ts 303.

12. HRB's evidence was that, at the time of trial, HEP was living in the care of two families.  HEP needed 24‑hour care, and was unable to speak, walk or eat normally.[133]

    [133] Trial ts 287 - 288.

13. Ms Hamilton cross-examined HRB at some length about the family relationships and the role RMM played in relation to the children.  At the conclusion of that cross-examination, HRB agreed with the proposition that, while RMM and KYB may have had an intimate relationship, RMM did not behave as if KYB and her children were his family.[134]

Police evidence

[134] Trial ts 329.

1. Detective Senior Constable Davis gave evidence that, on 18 June 2016, she attended the House, where RMM and two children were present.  RMM appeared to be living at the house, and she obtained his consent to a search of the property.[135]

   [135] Trial ts 431.

2. DSC Davis produced CCTV footage of KYB's arrival at Kalgoorlie Regional Hospital with HEP,[136] as well as text messages and intercepted telephone conversations between RMM and KYB.[137] 

   [136] Exhibit 5; trial ts 431 - 432.

   [137] Exhibits 6, 7, 8A - 8P, 9A - 9D, 10.

3. In a text message exchange on 28 May 2016, KYB complained that she had to give HEP lunch when RMM had said she wouldn't have to deal with HEP that day.  At 5.13 pm on 16 June 2016, KYB texted RMM asking if he was on his way home as she did not want to leave HEP too long.  In the course of a series of text exchanges that evening, RMM indicated that he had cooked some pasta bake.  Further text messages suggested that KYB did not return to the House until about 9.48 pm.[138]

   [138] Exhibits 8 and 9.

4. One of the intercepted calls was a discussion between RMM and KYB on the evening of 21 June 2016, to the following effect:[139]

   [139] Green AB 30 - 31.

   KYBBut - yeah.  The only think is I remember hearing a lot of banging Friday morning when you were talking to him.

   RMMHey?

   KYBI said there was a lot of banging when you were talking to him Friday morning.

   RMMNo.  Well, I was - when I was talking to him in his room, no, there [indistinct] banging.

   KYBYeah.

   RMMNo.  Only thing that happened in his room was, was that he fell down, I picked him up, tried talking to him, didn't talk to me.  Took him in and put him in the shower.  That's it.

   KYBBut I heard a loud noise.

   RMMI don't know what your loud noise you heard was.

   KYBMmm.

   RMMLike I told you, exactly what I told the police and everything else is exactly what happened.  I did not do anything to [HEP] on Friday morning.

   KYBWell, why did - - -

   RMMWell, other than growl at him.  But yeah.

   KYBWhatever happened, it was not an accident.

   RMMHey?

   KYBThat's what they said.  Whatever happened was not an accident.

   RMMWell, I'm telling you, I didn't do anything.

   KYBAnd they're saying, 'Do you know when you went in the house?'

   RMMWell, [indistinct] in the house, but yeah.  Honey, I'm telling you honestly, dead set, I did nothing to [HEP].  I, I growled at him, yeah, no argument, but, like, you know - - -

5. After discussing the questioning by police, the following exchange occurred:[140]

   [140] Green AB 32 - 33.

   RMMOkay.  It's mine next [indistinct] what they wanted from me.  I'm saying I, I didn't do anything, so that's what I said.  I don't know what fucking banging you thought you heard.

   KYBLike something had hit a wall.

   RMMNothing hit the fucking wall.  Don't know where you got that noise from.  When [HEP] sat down, he didn't even go close to the wall.  Well, actually, I shouldn't say when he sat down.  When he dropped down.  But yeah.

   KYBWell, I was asked why didn't we get up when we heard the banging in the bath [indistinct] went to the toilet, and my response was, 'Well, I thought it was the do-, bathroom door hitting the bathtub 'cause the bathtub's right behind the door,' and I just got told I was making up excuses.

   …

   RMMMmm.  You told the coppers you reckon you heard a noise or something going bang against the wall Friday morning?

   KYBNo.

   RMMWhat did you say?

   KYBJust that I could hear you talking to [HEP].

   RMMWell, I don't - like I said, I didn-, I don't know what noise you heard, honey, because I'm telling you there was no bang of any wall.  There was me talking to [HEP].  Yeah, there was a lot of that.  Like I said, when [HEP] went down, he didn't, didn't go near the wall.  Well, you know, didn't, didn't hit the wall on his way down.

   KYBYou didn't accidentally hit your head as you were carrying him around?

   RMMMe?

   KYBMmm.

   RMMNo, I might have smacked the door open, but, like, that's not hitting the wall, I don't - pretty sure.

   KYBYeah, but you didn't hit his head on anything as you were carrying him around?

   RMMOh, shit no.  No.

   KYBOkay.

   RMMNo.  Fuck no.

   KYBWell, I don't know.

   RMMNo. Medical 101.  I had his head in my hand, always supporting underneath the head.  Number 1, first thing I learned in bloody first aid.  Always support the head.  Yeah.  No.  No.  I didn't bang [HEP's] head on anything.  I didn't bang myself on anything, so I'm not sure what you heard.  Yeah.  ...

6. KYB's statements as to what she heard on the morning of 17 June 2016 were not evidence against RMM as to the truth of the statement that she heard a banging noise as RMM was speaking to HEP in the morning.

7. At about midday on 22 June 2016, there was a further intercepted telephone discussion between KYB and RMM about the police investigation.  RMM said that there were no marks on HEP, and confirmed that he was the one who got HEP out of bed.[141]

   [141] Green AB 42 - 43.

8. On the night of 23 June 2016, RMM had a further intercepted discussion with KYB in which RMM asked KYB about the cause of HEP's condition.[142]

   [142] Green AB 49 - 50.

9. DSC Davis was not cross-examined by Ms Hamilton.[143]

   [143] Trial ts 458.

Amendment of the indictment

1. The prosecution case was closed on the afternoon of 4 September 2017, and both KYB and RMM elected not to give or adduce any evidence at the trial.[144]

   [144] Trial ts 538 - 539.

2. When the trial resumed at 10.36 am on 5 September 2017, the prosecutor applied to amend count 1 on the indictment so that it alleged the commission of an offence between 1 - 17 June 2016, rather than 1 - 16 June 2016.[145]

   [145] Trial ts 556.

3. The amendment was not opposed by counsel for KYB.  The following exchange occurred between the trial judge and Ms Hamilton:[146]

   HAMILTON, MS:  Sorry. I'm in a somewhat difficult position in respect to this because, as I understand it, the purpose is to incorporate the conduct that - the witness, McKnight, says in her evidence that the accused made admissions about - to her, that is, that the child was unresponsive when he went into the room, he shook the child, the child defecated but was still unresponsive, he got the child out of bed and then put the child in the shower for 20 minutes.  Now, I had no instructions from my client about those alleged admissions that McKnight's evidence went to.

   McCANN DCJ: Was it not in her statement?

   HAMILTON, MS: It was in her statement. I don't have any difficulty with that. I'm talking about my instructions.

   McCANN DCJ: Yes.

   HAMILTON, MS: As a consequence, in the course of the trial and of her giving evidence, I recall standing up and saying I had no cross‑examination. At the time I was saying that, I didn't notice, but my client was trying to get my attention and, ultimately, after I had uttered the words Mr McKenzie said, "I think your client is trying to say something to you," and I sat down and then I spoke to him afterwards, when we adjourned.  And I thought I would be able to address that issue simply in the cross-examination of Dr Hagan, who gave different evidence as to what it was my client told him.  In my closing I have made reference to the evidence of both of those witnesses.  So my difficulty is I didn't have instructions. Now I see the purpose for which the State wished to make the amendment. If the amendment is allowed, I am going to have to make some changes to the way I close, but I have that difficulty, your Honour.

   McCANN DCJ: All right.  Well, first of all, what is your attitude to the amendment? We've got all week to finish the trial, so you will certainly have any time you want if that's all it involves.

   HAMILTON, MS: Look, your Honour, I don't think it's something that I can particularly resist.  The evidence is there.  Whether I had cross‑examined her or not, it still would come back to an issue of credibility and reliability, so I don't think I can really resist, to any great extent, the State's application.

   [146] Trial ts 557 - 558.

4. The trial judge then allowed the amendment to the indictment.  He confirmed with Ms Hamilton that the amendment had not affected the way in which she had run her case 'in terms of making decisions as to whether your client would testify and so on and so forth'.[147]

   [147] Trial ts 558.

Counsel's closing submissions

Prosecutor's closing submissions

1. The prosecutor's closing submissions largely consisted of a detailed summary of the evidence which had been led by the State.  In the course of that summary, the prosecutor referred to Ms McKnight's evidence of her discussion with RMM.  He referred to that passage of her evidence as demonstrating that RMM was exercising care and control over HEP.  The prosecutor also observed:[148]

   Ladies and gentlemen, while [RMM] may only have admitted to Ms McKnight that he shook him a - gave him a little shake, he has indicated, has he not, that he did shake that child, the child that was weighing 15 kilos, even though he was five years old, the child that was in the third percentile weight, a little child, a child who ended up with what the experts have opined - that - it was their opinion, that is, Dr Johnson's opinion, that it was an abusive head trauma injury, the haemorrhaging to - the subdural haemorrhage.

   Now, let's tie all of these things in together.  [RMM] said to the nurse, 'I gave him a shake, a little shake.'  We know it couldn't have been a little shake that would have caused an injury like that, an abusive head trauma injury, because that's what Dr Johnson said.  It required more than that.  It required a significant amount of force.

   [148] Closing ts 56 - 57.

2. After referring to the absence of evidence of blunt force trauma and RMM's comments about the absence of marks, the prosecutor observed:[149]

   Put it all together, ladies and gentlemen, like a jigsaw puzzle.  He comes into the bedroom.  He finds that the child has peed himself, a child which had, for several days, been appearing at school with fingerprint bruising.  He tells the nurse, 'I gave him a little shake.'  Is that a little shake that would cause a rotation injury to the brain?  Is that really a little shake?  I mean, has he actually admitted that he shook the child because of his frustration at the fact that the bed was wet?  And what does he say happened sequentially after the shaking?  He shat himself.  The child is unresponsive, struggling for breath, gasping for breath.  What do they do?  Put him in the shower for, potentially, up to 20 minutes, I think some of the evidence was, in the shower before deciding to take him to the hospital.

   [149] Closing ts 57 - 58.

3. After summarising the evidence, the prosecutor indicates that the State's case was that both RMM and KYB had the care and control of HEP.  Noting that this element of the offence was a live issue for RMM, the prosecutor contended that the evidence proved that RMM was a person who had the care and control of HEP.  The prosecutor said:[150]

   He wasn't just a casual boyfriend. They were living together as husband and wife, or as a de facto couple.  They were living with [KYB's] three children.  [KYB] was pregnant to [RMM].  [RMM] indicated that he was involved in the care of [HEP], through the text messages that you've seen, through the things that he said.  When he said the things that he said to [Ms McKnight], the nurse, he said, 'I was the person who went - who got up to him in the morning to see how he was in the morning of the Friday of the 17th.' 

   He assumed a parental role with respect to that child. He owed a duty to him as a person who had the care and control of that child.

   [150] Closing ts 81.

4. The prosecutor indicated that there were a number of aspects to the allegation that the accused engaged in conduct and were reckless as to whether such conduct may have resulted in HEP suffering harm as a result of neglect, including:

   (1)Sending HEP to school while inappropriately dressed;[151]

   (2)Not properly feeding HEP;[152] and

   (3)Failing to seek medical treatment when there was significant diarrhoea on Friday, 10 June 2016 and HEP was sick for the next week.[153]

   [151] Closing ts 82.

   [152] Closing ts 82 - 83.

   [153] Closing ts 83.

5. The prosecutor also referred to the bruising on HEP's face, observing:[154]

   But you might have to reach a conclusion about the cause of that bruising. You may or may not be satisfied as to how that happened or who was responsible for that bruising.  But again, there are two people that we say were in care and control of that child throughout that course of the days between 1 June and 17 June when he presented to school on at least three separate occasions with significant bruising to his face.

   [154] Closing ts 84.

6. The prosecutor referred to medical evidence that the injuries were highly suggestive of inflicted rather than accidental causes.  He said that, even assuming that the bruises were accidentally caused, the failure to seek medical treatment to try and find out the cause of the bruises was neglect that may result in harm to the child.[155]

   [155] Closing ts 84.

7. The prosecutor also referred to the major injury which caused HEP to go into 'cardio‑respiratory arrest on the morning of 17 June'.  He said that the unchallenged medical evidence was 'pretty overwhelming' that the injury was not organically caused.  The prosecutor submitted:[156]

   It wasn't just a situation where [HEP] had this secret illness that no one could possibly know about and then all of a sudden it just manifested itself on that day.  Here is a child was weak from inadequate food, constantly cold because he is inadequately dressed, presenting with bruising on numerous occasions, vomiting and diarrhoea for over a week.

   And then finally - finally, with that delay that we've seen when he finally gets into that emergency department, gets into that emergency department with no heartbeat and not breathing and the evidence suggests that it was an abusive head trauma injury.  Well, someone has to have done that, ladies and gentlemen.  You might not be able to reach a firm conclusion as to who has done it, but the evidence would establish that a person has inflicted that injury to [HEP] in that two to three day period before that presentation at that hospital.

   If you're not satisfied as to the identity of the person who did it there are two people with the care and control of that child.  If one person is aware that it has been inflicted by the other, but neither seek treatment in a timely way for it, then that, you might conclude, amounts to engaging in conduct that may result in the complainant suffering harm. (emphasis added)

Ms Hamilton's closing submissions

[156] Closing ts 84 - 85.

1. Ms Hamilton began the substantive part of her closing submissions by referring to the evidence of the telephone intercepts and text messages.  She noted that RMM denied creating the banging noise referred to by KYB, and the absence of any evidence that HEP suffered any blunt force trauma to his head on the morning of 17 June 2016.[157]  She referred to their discussion about whether KYB should buy a book to read to HEP, and said:[158]

   What I want you to consider is this. Was that the voice of a step-father, a person deeply involved in a family relationship, or simply the voice of a human being concerned about a little boy that they knew and had something to do with, because you need to find that [RMM] was a person with the care or the control of this child and in doing so, you will need to consider in depth the dynamics of his relationship with [KYB] and her children.

   And you will need to do that in order to determine his guilt.  When you consider the evidence of the witnesses in this matter and my conduct of his defence, it will not be hard for you to draw the conclusion that he's not in a position to challenge much of that evidence at all.  I'm suggesting to you that it is clear he had little to do with the children of [KYB] and their schooling and certainly you could find that on the evidence of the school staff. 

   You may find as fact that he wasn't [on] any list as a contact person should the school need to contact someone in relation to those children, so you may find that he had no involvement with the children and the school.  And you may draw the conclusion, from the evidence of [HRB] and the telephone intercepts, that there was not, from his perspective, a family relationship.  [HRB] says that he didn't behave that way.

   [157] Closing ts 89.

   [158] Closing ts 90.

2. After referring to the evidence of HRB and the telephone intercepts, and the notion of 'family' Ms Hamilton submitted that:[159]

   I'm suggesting to you that the notion of care or control in this matter is closely linked to that of family and that's an issue I'm asking you to consider carefully.

   [159] Closing ts 91.

3. Ms Hamilton made the following submissions in relation to Ms McKnight's evidence as to what RMM said at Kalgoorlie Regional Hospital:[160]

   Sometimes a witness can give very clear, firm evidence that is very compelling.  Their demeanour, their sense of assurance, might be something you think makes their evidence more acceptable, and I suggest to you that [Ms McKnight], the nurse, was one of those witnesses. 

   I have no doubt in my mind that this young woman is a committed and a dedicated nursing professional. She was the first of the hospital staff to have contact with this little boy. She makes herself responsible at an early stage to find an explanation for the history of his presentation at the hospital that morning, 17 June 2016.  She has conversations with [KYB] and [RMM] and her evidence is that from her conversations with [RMM] that the child was unresponsive when he went into the room.

   That [RMM], she says, shook the child and then while still unresponsive, that child defecated and subsequently, her evidence is that [RMM] put him in the shower. She said in her evidence that [RMM] did not describe the shake, but she assumed it was the sort of shake you might give a child or a person to wake them up.  In closing yesterday, it appears that the State want you to focus on that evidence, of the shake, and draw from it the conclusion that this was more than a shake to wake up a child.

   Possibly much, much more.

   [160] Trial ts 91 - 92.

4. Ms Hamilton suggested that the jury's common sense and life experience would be that, if a person has done something wrong, then that person will not make an admission about anything that might connect them to that harmful consequence.  She noted that Ms McKnight did not only make an assumption about the shake, but had wrongly assumed that RMM drove KYB and HEP to the hospital.  She also referred to the differences in the evidence of Ms McKnight and Dr Hagan as to what RMM told hospital staff, in particular as to whether HEP was responsive when RMM went to the bedroom.[161]

   [161] Closing ts 92.

5. Ms Hamilton anticipated that the jury would find it clear that HEP presented to hospital with a subdural haematoma, and that the 'question for you is when did that occur and how'.  She noted Dr Johnson was unequivocal that HEP did not present with any indication of blunt force injury sufficient to have caused subdural haematoma.  Ms Hamilton said that Dr Johnson's evidence suggests that that may leave shaking of significant force.[162]

   [162] Trial ts 93.

6. Ms Hamilton referred to the evidence of bruising observed on HEP's face on 13 and 15 June 2016,[163] and said:[164]

   Dr Johnson's evidence is that the subdural haematoma is difficult to age - but agreed that in her report it says, when dealing with the question of aging, within two to three days and certainly within seven.  But she questioned the likelihood of him walking around bleeding from the brain. That again is a matter for you.

   The State ask you find that [RMM] had opportunity on the evening of 16 June 2016 and on the morning of 17 June 2016 and that you should find that is when the shaking occurred.  If that is the case, then your common sense might ask the question, how could a child present throughout that past week with bruising, particularly fingerprint bruising, yet show no further bruising on his face over and above that of 15 June 2016.  And you may find from the other photographs that there does not appear to be other bruising on his body indicative of the use of significant force against him.

   Dr Johnson says bruising does not always occur as a result of force.  But I ask you, if force was used against that child sufficient to cause the bruises seen and photographed on 15 June, would you expect to see evidence of the force said to have been used on either the night of 16 June or the morning of 17 June? That is a matter entirely for you.

   [163] Closing ts 93 - 94.

   [164] Trial ts 94.

7. Ms Hamilton submitted that, if the jury were satisfied that RMM was a person with care and control of HEP:[165]

   [Y]ou must ask yourselves, did he turn his mind to whatever was going on or not going on, think about it, and then consciously disregard the possible consequences of those acts or omissions?  To get inside the mind of another is not a difficult - is - is a difficult and not an easy thing to do.

   [165] Trial ts 94.

8. Ms Hamilton concluded by emphasising that the jury had to be satisfied of RMM's guilt beyond reasonable doubt.[166]

   [166] Trial ts 95.

Trial judge's directions

1. The appellant makes no complaint about the trial judge's directions to the jury.  It is therefore unnecessary to say anything about those directions.

Ground of appeal against conviction

1. RMM appeals against his conviction on the sole ground that there was a miscarriage of justice when he failed to receive a fair trial due to the incompetence of his trial counsel.  The following particulars are provided in support of that ground:

   1.1The Appellant's trial counsel failed to adequately take instructions as to the central contentious issues in the case against the appellant;

   1.2The Appellant's trial counsel failed to adequately advise the client as to the best way to defend the charges against him;

   1.3The Appellant's trial counsel erred by limiting the defence at trial to a single issue that was so narrow as to be unlikely to have any prospects of success;

   1.4The Appellant's trial counsel erred by failing to cross-examine the witness [Ms McKnight], in relation to the alleged admission by the Appellant in relation to having shaken the child; and

   1.5The Appellant's trial counsel erred by failing to seek the recall of the witness [Ms McKnight], once the prosecutor's application to amend the indictment had been granted.

General principles

1. The relevant general principles were recently summarised by this court in Huggins v The State of Western Australia.[167]  We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case:

   An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged.   This is a consequence of the adversarial nature of a criminal trial and the role played by counsel.  Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client.   It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence.   It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel.   For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. [376] (citations omitted)

   [167] Huggins v The State of Western Australia [2018] WASCA 61 [376] - [401].

Applications to adduce additional evidence in the appeal

1. RMM has applied for leave to rely on two affidavits which he has sworn on 15 January 2018 and 13 June 2018, in support of his appeal.  The State has applied for leave to rely on the affidavit of Ms Hamilton sworn 14 February 2018 in opposition to the appeal.

2. The State has objected to the admission of RMM's affidavits, on the basis that they refer to 'the conduct of defence counsel when the relevant test is objective and when this is the type of case where [RMM] is bound by his counsel's conduct of his trial.'[168]  Alternatively, the State says that the evidence is irrelevant as RMM does not depose to the evidence which may have been led from him or others but for his counsel's alleged incompetence.[169]  The State also objects to parts of RMM's affidavit on the ground that they contain comment.[170]

   [168] Respondent's Submissions, par 27.

   [169] Respondent's Submissions, part 28.

   [170] Appeal ts 14 - 15.

3. Counsel for RMM did not object to the court receiving Ms Hamilton's affidavit as evidence in the appeal.[171]

   [171] Appeal ts 15.

4. The court indicated that it would receive the affidavits provisionally and rule on the State's objections and whether the affidavits would be admitted in these reasons.  Both RMM and Ms Hamilton gave supplementary evidence and were cross-examined on their affidavits.

5. The court also provisionally received, as exhibits in the appeal, a statement of Ms McKnight given to police on 13 July 2017 and accompanying handwritten notes (exhibit 6), a copy of a proofing note of Ms McKnight sent to Ms Hamilton under cover of email dated 26 August 2017 (exhibit 4); and a document signed by RMM on 31 August 2017 indicating his election not to give evidence (exhibit 5).

6. We will receive the above material as evidence in the appeal, but would not give any weight to material which is comment by RMM or which describes either Ms Hamilton's or RMM's subjective motivations as to those aspects of the conduct of the trial which were within counsel's remit.[172]  Those matters include determining what (if any) questions will be asked of prosecution witnesses and what submissions will be advanced in support of RMM's case.  We will not make any findings as to Ms Hamilton's and the appellant's subjective motives for making decisions of that kind.  It is necessary to bear in mind that in a case of this kind:[173]

   An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage.  Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis.  That is, could there be any reasonable explanation for the decision?  The test is objective in character.

   [172] See Craig v The Queen [2018] HCA 13; (2018) 92 ALJR 390 [23] - [24].

   [173] Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115], cited in Huggins [379].

7. That is, as the High Court noted in Craig:[174]

   The objective test that … is to be applied to the determination of challenges of that kind takes into account the wide discretion conferred on counsel under our adversarial system of criminal justice.  A necessary consequence of that discretion is that the accused will generally be bound by counsel's forensic choices.  It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice. (citations omitted).

   [174] Craig [24].

8. Therefore, evidence of RMM and Ms Hamilton as to the subjective reasons for acting as they did in the trial does not provide a basis for this court to conclude that there has, or has not, been a miscarriage of justice. 

Assessment of the evidence in the appeal

1. RMM did not present as a witness whose recollection of events can be relied on by the court.  Most significantly, RMM's first affidavit deposed that he only met with Ms Hamilton on the day before the trial.[175]  RMM indicated that this was still his recollection at the hearing of the appeal.[176]  RMM's counsel accepted that this could not be correct and the documents produced by Ms Hamilton showed that she also met with RMM at Kalgoorlie on 18 July 2017, about 6 weeks before the trial began.[177]  In addition, his evidence was confused as to whether a typed or handwritten proof was prepared at the meeting which he could recall.[178]

   [175] Appeal exhibit 1, par 7.

   [176] Appeal ts 32, 36, 44.

   [177] Appeal ts 19.

   [178] Appeal ts 38 - 41.

2. By contrast, Ms Hamilton gave her evidence in a careful and precise manner, which was supported by the documentary evidence available to the court.  We regard Ms Hamilton as an honest and reliable witness, and would prefer her evidence to that given by RMM, where the two accounts are inconsistent.

Findings of fact on appeal

1. We make the following findings of fact as to the events leading up to the trial, based principally on Ms Hamilton's evidence and the documentary exhibits.

2. Ms Hamilton was admitted as a legal practitioner in Western Australia in 1995, and practised as defence counsel until July 2005.  Ms Hamilton held office as a magistrate from August 2005 until her retirement from that office in October 2015.  She then recommenced practise as a criminal lawyer in January 2016.[179]  Ms Hamilton conducted about 50 jury trials before becoming a magistrate, and RMM's trial was her fourth or fifth jury trial since returning to practise.[180]

   [179] Appeal ts 48.

   [180] Appeal ts 68.

3. On 19 September 2016, Ms Hamilton received a grant of legal aid to represent RMM at the trial in Kalgoorlie.  At this time RMM lived in Kalgoorlie and Ms Hamilton practised from Albany.  Ms Hamilton received the Committal Mention Papers, which numbered some 500 pages.  She applied for a disbursements extension to copy the brief and post it to RMM.  On a number of occasions, Ms Hamilton asked RMM to go through the material and make notations in the margins in relation to the evidence.[181]  Ms Hamilton made the last of these requests about a week before she came to Kalgoorlie to meet with RMM for the first time.[182]

   [181] Hamilton Affidavit, par 3 - 9.

   [182] Appeal ts 50.

4. On 13 July 2017, Ms McKnight signed a typewritten statement of the evidence which she would give at RMM's trial, which also attached notes that she had taken during the course of the resuscitation of HEP.  In that statement, Ms McKnight gave the following account of her discussion with RMM at Kalgoorlie Regional Hospital:[183]

   [183] Appeal exhibit 6.

   40.He said that the child had been unwell with gastro a few days before.

   41.He said that he had gone in to check on him and found that he had been incontinent in bed.

   42.He said that he tried to rouse him, but he started shaking and pooed himself.

   43.He said that he put him in the shower and that he was making groaning noises.

   44.I asked; 'Was he breathing'?

   45.He said something like; 'Yes he was taking breaths' and then demonstrated abnormal breathing.

   46.I asked; How long was he in the shower for?'

   47.He said; '20 minutes'.

   48.I asked what happened next and he said something like; 'We had a chat and brought him into the hospital'.

   The notes taken by Ms McKnight did not make any mention of RMM saying he had shaken the child or anything of that nature.[184]

   [184] Appeal ts 84.

5. On 18 July 2017, Ms Hamilton flew to Kalgoorlie to meet with RMM.  She met with him at the offices of the Legal Aid Commission in Kalgoorlie at about 9.00 am on that day.[185]  At this time, Ms Hamilton had not been provided with Ms McKnight's statement or the notes attached to that statement.[186]

   [185] Hamilton Affidavit par 19, annexure B.

   [186] Appeal ts 54.

6. At this time RMM had no paperwork with him.  Ms Hamilton asked RMM where it was, and he replied that it was at home.  Ms Hamilton asked him to go and get the paperwork.  RMM told Ms Hamilton that there was no point as he had not made any notations at all on any of the documents.  He assured Ms Hamilton that this was not because he could not read or write, but that he had nothing to say other than that he 'did not do it'.  He told Ms Hamilton that he had no questions for the State's witnesses, which is why he made no notations on the brief.[187]

   [187] Hamilton Affidavit, par 20 - 22.

7. Ms Hamilton spoke to RMM for a number of hours at the Legal Aid Offices, and made some 15 pages of notes of their conversation and her observations of him.  Subsequently, Ms Hamilton prepared a draft proof of evidence on the basis of her notes, her observations of RMM and her conversation with him.[188]

   [188] Hamilton Affidavit, par 23 - 25, annexure F.

8. On Saturday 26 August 2017, an officer of the Office of the Director of Public Prosecutions emailed Ms Hamilton proofing notes containing information obtained from Ms McKnight and another witness during their 'witness conferences'.[189]  The proofing notes contained the following account of Ms McKnight's discussion with RMM at the hospital:

   [189] Appeal ts 51 - 53; appeal exhibit 4.

   I saidHello my name is [Ms McKnight]

   He saidbeen unwell    

   Kept home school - gastro/diarrhoea

   Went to check on him - drowsy

   Noticed incontinent

   Got angry

   Gave child shake to rouse him and then he pooed himself

   Child shaking and incontinent - faeces

   Put him in Shower

   I saidBreathing in shower

   He saidYes

   I saidHow could you tell?  Was he talking to you

   He saidNo not talking

   He demonstrated Apnoeic breathing demonstrated

   (Apnoeic is laboured inconsistent breaths)

   I saidHow long in shower

   He saidI don't know - about 20 m

   I saidafter shower, what did you do next

   She saidSpoke to [KYB] and they decided that they had better take him to hospital

   (emphasis added)

   This was the first occasion on which the State had provided Ms Hamilton with any material indicating that it was alleged that RMM had admitted shaking HEP.[190]

   [190] Appeal ts 51.

9. Ms Hamilton returned to Kalgoorlie on Sunday 27 August 2017. The trial was listed for a call-over on Monday, 28 August 2017. Ms Hamilton met with RMM at the Legal Aid offices after the call-over. Ms Hamilton gave RMM a copy of proofing notes for various witnesses which had been provided by the ODPP, witness statements and RMM's typewritten draft proof of evidence which she had prepared. The proofing notes given to RMM included the notes of Ms McKnight's discussion with RMM at the hospital, quoted at [141] above. Ms Hamilton left RMM with that material in the reception area while she worked in an office.[191] 

   [191] Appeal ts 53; Hamilton Affidavit, par 26 - 30.

1. The trial judge found that RMM was responsible for all of the physical injuries sustained by HEP, and that KYB knew of and condoned RMM's behaviour.[220]  The trial judge considered two hypotheses as to the cause of the subdural haematoma, which he described as the 'acute catastrophic injury hypothesis' and the 'slow burn hypothesis'.[221]  During the course of counsel's submissions, the trial judge gave an explanation of what he meant by these terms, to the following effect:

   (1)The 'acute catastrophic injury hypothesis' involved the acute injury being sustained by shaking on the morning of 17 June 2016.

   (2)The 'slow burn hypothesis' involved the shaking occurring sometime earlier, and probably involved less violent shaking 'because the catastrophic results would have set in more slowly'.  Symptoms of 'lethargy and so on, clumsiness in the toilet, incontinence' would have emerged.[222]

   [220] Trial ts 669.

   [221] Trial ts 667 - 668.

   [222] Trial ts 644 - 645.

2. The trial judge said that he could not 'implicate or exclude either scenario beyond reasonable doubt'.[223]  He proceeded on the basis that HEP's acute injury was sustained on the 'slow burn hypothesis', as it involved a lower level of criminal responsibility for both accused.[224]

   [223] Trial ts 669.

   [224] Trial ts 670, 675.

3. The trial judge found that both RMM and KYB had the care and control of HEP in a 'typically fully blended family unit, albeit one riven by dysfunction'.[225]  The trial judge found that RMM was 'in a full parental role' and inflicted high level gratuitous violence on a 5‑year‑old boy who had a current history of gastro-like illness and was chronically underfed.  The trial judge found that the violence to HEP was unjustified and involved assaults occurring over a period of about 2 weeks.[226]  RMM was motivated by his intolerance of HEP and, as his intolerance escalated, the violence escalated.  At the end, RMM was motivated by contempt and anger towards HEP, who was subjected to a sustained campaign of physical abuse.[227]  The trial judge found that the 'ultimate shaking that occurred was not an aberration'.[228]

   [225] Trial ts 670.

   [226] Trial ts 672.

   [227] Trial ts 671 - 672.

   [228] Trial ts 711.

4. The trial judge said that he excluded 'criminal negligence in the other domains' alleged by the State, saying that:[229]

   The other matters provide circumstantial evidence of wilful neglect but are not wilful neglect in their own right.

   [229] Trial ts 672.

5. The trial judge found that RMM had a stable upbringing in Kalgoorlie, and had an excellent employment history.  The trial judge said that:[230]

   [L]ike most males, [RMM] exhibited immaturity and delinquency until his mid-twenties.  He has an unedifying criminal history to match.  But since then, apart from some alcohol and disorderly behaviour offences, he has behaved pretty well.  And, as I say, he has taken a lot of proactive steps to sort himself out. There's no offending similar to this so personal deterrence is not elevated in any way.

   [230] Trial ts 713 - 714.

6. The trial judge said that the only mitigation for RMM was that this was his first very serious offence.[231]

Trial judge's approach in sentencing RMM

[231] Trial ts 714.

1. Having found the above facts, the trial judge considered the issue of parity between the sentences to be imposed on RMM and KYB.  He distinguished between RMM's 'acts' which he regarded as 'more criminally culpable' than KYB's 'omissions'.[232]  In doing so, the trial judge observed:[233]

   Anyone hitting and violently shaking a small child is doing something which cannot be justified, explained away or condoned at all. An omission will often reflect or allow more scope for the offender's lack of insight or appreciation of options or skills to act on those options, and that is clearly the case here with [KYB].

   [232] Trial ts 714.

   [233] Trial ts 714 - 715.

2. The trial judge also observed that:[234]

   Punishment and denunciation and general deterrence are very important [in] cases involving domestic violence, particularly involving small children, remembering that [RMM] has been found guilty of recklessness by act not omission.

   [234] Trial ts 715.

3. The trial judge said that, although neither RMM nor KYB were charged with doing grievous bodily harm, the maximum sentences for the offence of which they were convicted and aggravated grievous bodily harm were both 10 years' imprisonment.  The trial judge said:[235]

   So, in a sense, there is something to be said for ensuring that the sentence here is analogous to, or consistent with sentencing trends for the doing of grievous bodily harm, remembering that the doing of grievous bodily harm can be done by criminal negligence.  But I stress I am not sentencing him for that, but what I really am doing is taking into account the very high risk of harm to [HEP] and the fact that that risk materialised.

   [235] Trial ts 715.

4. The trial judge held, in effect, that sentences of immediate imprisonment were the only appropriate sentences for both RMM and KYB.[236]  In sentencing RMM, the trial judge said:[237]

   In [RMM's] case the range is three to six years because of the act of violence, ongoing violence.  The shaking of the boy was, in my opinion - and I am going to use an adjective here - brutal.  There was a very high risk of acute head trauma as a result of the shaking of the boy and it materialised.  There is little scope for differentiating this kind of offending from the unlawful doing of grievous bodily harm.  The starting point is five and a half years imprisonment reduced by half a year for mitigating factors.

   So his sentence is five years imprisonment.

   [236] Trial ts 715.

   [237] Trial ts 716.

5. It would appear that the trial judge's reference to a 'range' of 3 - 6 years reflected a view by the trial judge as to the appropriate range of sentences for an offence of unlawfully doing grievous bodily harm, contrary to s 297 of the Criminal Code (WA).

6. RMM was made eligible for parole.[238]

   [238] Trial ts 716.

7. KYB received concurrent sentences of 27 months' immediate imprisonment in respect of each count on the indictment.[239]

Grounds of appeal against sentence

[239] Trial ts 716.

1. RMM appeals against his sentence on three grounds.

2. Ground 1 contends that the trial judge erred in finding, beyond reasonable doubt, that RMM deliberately inflicted, and was responsible for, the brain injury and other injuries caused to HEP.

3. Ground 2 in effect contends that the sentence of 5 years' imprisonment imposed on RMM, when compared to the sentence of 2 years 3 months' imprisonment imposed on KYB, infringes the parity principle.

4. Ground 3 contends that the sentence imposed on RMM was manifestly excessive.

5. It is appropriate to begin by focussing on ground 1, which in our view is, in substance, established.

Fact finding on sentence: general principles

1. The respective roles of the trial judge and a jury were explained in the following terms by the plurality in Cheung v The Queen:[240] 

   The decision as to guilt of an offence is for the jury.  The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge.  If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict.  In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue.  But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability.

   [240] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5].

2. Generally speaking,[241] a judge is not required to sentence on a view of the facts most favourable to an offender, but should make his or her own findings as to the aggravating and mitigating circumstances of the offence of which the offender has been convicted.[242]

   [241] Cf Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425.

   [242] Chiro [52], [70], [83] - [85]; Cheung [14] - [17], [98] - [99], [162] - [163]; R v Olbrich [1999] HCA 54 (1999) 199 CLR 270 [24].

3. Section 15 of the Sentencing Act 1995 (WA) provides:

   To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.

4. Section 15 empowers a sentencing judge to receive information which is not admissible under the law of evidence. However, the discretionary power under s 15 must be exercised:

   (a)in a manner which is consistent with, and does not prejudice or detract from, the integrity of the judicial process; and

   (b)in accordance with the rules of procedural fairness.[243]

   So, for example, s 15 does not authorise a sentencing judge to take into account, in sentencing an offender, information he or she has obtained without reference to the parties and without giving them an opportunity to be heard in relation to it.[244]

   [243] Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [64] - [65]; Tanner v The State of Western Australia [2013] WASCA 142 [134] - [135].

   [244] Teakle [66]; Tanner [136].

5. If the prosecution or an offender seeks to have the sentencing judge take a fact or circumstance into account when passing sentence, it will be for the party relying on the fact or circumstance to bring it the judge's attention and, if necessary, call evidence about it.  The calling of evidence will only be required if the asserted fact or circumstance is disputed or if the judge is not prepared to act on the assertion.[245]

   [245] Olbrich [25]; Law v The State of Western Australia [2009] WASCA 193 [29] - [31].

6. Notwithstanding s 15 of the Sentencing Act, where an offender disputes facts or circumstances asserted by the prosecution, the facts or circumstances must be established according to the strict rules of evidence.[246]

   [246] Rimington v The State of Western Australia [2015] WASCA 102 [59]; The State of Western Australia v JWRL [2010] WASCA 179 [10]; Pelemis v The State of Western Australia [2009] WASCA 151 [13]; HAS v The State of Western Australia [2005] WASCA 29 [49]-[55].

7. A sentencing judge may not take disputed facts or circumstances into account in a way that is adverse to the interests of the offender unless those facts or circumstances have been established beyond reasonable doubt.  However, a sentencing judge may take into account disputed facts or circumstances which are in the offender's favour if those facts or circumstances are proved on the balance of probabilities.[247]

   [247] Olbrich [27]; Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [64].

8. Where the prosecution fails to prove a fact or circumstance which is adverse to an offender, but an alternate fact or circumstance favourable to the offender has not been established on the balance of probabilities, a sentencing judge is not bound to sentence the offender on the basis of the more favourable version.  In such a case, the sentencing judge may sentence the offender on the basis that neither of the competing possibilities is known.[248]

   [248] Fillipou [65] - [72].

9. The sentencing discretion is to be exercised consistently with the general principle, identified in R v De Simoni,[249] that no one should be punished for an offence of which he or she has not been convicted.

Error in finding that the appellant inflicted HEP's injuries

[249] R v De Simoni (1981) 147 CLR 383, 389; Chiro [44], [72]; SV v The State of Western Australia [2014] WASCA 123 [137].

1. The trial judge sentenced RMM on the basis that, as a person with the care and control of HEP, he assaulted HEP reckless as to the harm which may result.  The harm which in fact resulted comprised the catastrophic injuries described in the evidence.  As RMM disputed having assaulted HEP, such a finding could only be made in a manner which was consistent with the jury's verdict, on evidence which was admissible against RMM that satisfied the trial judge of that fact beyond reasonable doubt.

2. There were four fundamental problems with the trial judge's approach.

3. First, the trial judge's approach involved punishing RMM for an offence of which he had not been convicted. 

4. As noted above, RMM was not charged with engaging in conduct reckless as to whether the conduct may result in the child suffering harm as a result of physical abuse. Nor was it alleged that the conduct he had engaged in was physical abuse. That is one possible charge which could be formulated under s 101 of the Act, but that was not the manner in which RMM was indicted. RMM was charged with engaging in conduct reckless as to whether the conduct may result in the child suffering harm as a result of neglect. The only relevant limb of the definition of 'neglect' on the trial judge's findings was a failure to provide or arrange the provision of adequate medical treatment for the child. In finding that RMM was culpable on the basis of his physical acts of assaulting HEP (i.e. physical abuse), the trial judge sentenced RMM on the basis that he committed an offence that was, in the circumstances of this case, more serious than the offence with which he had been charged and convicted.

5. The present case is analogous with SV, in which the judge was held to have erred by sentencing an offender on the basis that he knew that his conduct may result in harm to a child, when the offender was only charged with being reckless as whether harm may result.[250]  In SV, the judge erred by punishing the offender for an offence under s 101(1)(a) of the Act, when the offender was charged with an offence under s 101(1)(b) of the Act.

   [250] SV [137], [143] - [144].

6. Further, RMM had clearly not been charged with or convicted of unlawfully doing grievous bodily harm to HEP, which is an offence contrary to s 297(1) of the Criminal Code. Yet the trial judge effectively punished RMM on the basis that he had committed that offence. It is apparent that the trial judge sentenced RMM by reference to what his Honour perceived to be a range of sentences which would be appropriate for an offence against s 297(1) of the Criminal Code.

7. The maximum penalty for an offence against s 297(1) of the Criminal Code committed in circumstances of aggravation is imprisonment for 14 years.  One circumstance of aggravation is that the offender is in a family relationship with the victim of the offence.[251]  HEP was, on the trial judge's findings, in a family relationship with HEP as HEP was a child who ordinarily resided with RMM at the House.[252] As such, the factual basis on which the trial judge sentenced RMM constituted the commission of a more serious offence, in terms of the available maximum penalty, than the offence with which he had been charged and convicted. It is not to the point that the comments noted at [187] above suggest that the trial judge did not appreciate that a higher penalty would be applicable for that offence.

   [251] Section 221(1)(a) of the Criminal Code.

   [252] Section 221(2) of the Criminal Code read with s 4(1) of the Restraining Orders Act 1997 (WA).

8. Further, the trial judge did not merely refer to the history of physical violence as a factor which aggravated RMM's failure to provide or arrange the provision of adequate medical treatment for HEP. Rather, acts of physical violence against HEP, which resulted in catastrophic injuries, was the only basis on which the trial judge found RMM to have committed an offence under s 101 of the Act.

9. In all of the above circumstances, the trial judge's approach involved punishing RMM for an offence of which he had not been convicted.

10. Secondly, the evidence admissible against RMM at trial was not capable of satisfying the trial judge, beyond reasonable doubt, that RMM was the person who caused all the physical injuries inflicted upon HEP during June 2016.

11. The evidence admissible against RMM is summarised above.  That evidence supported a finding that HEP sustained facial bruising, observed at the School on 1, 13 and 15 June 2016, and that this bruising was a result of inflicted blunt force trauma.  The evidence also supported a finding that HEP sustained bilateral subdural haematomas and cerebral oedema, which were rotational injuries caused by inflicted head trauma. 

12. There was no evidence to suggest that these injuries occurred other than when HEP was in the care and control of RMM and/or KYB.  It was not suggested to either the members of the School staff or HRB that HEP's injuries occurred at the times he was in their care.  The evidence admissible against RMM at trial was therefore capable of satisfying the trial judge that HEP's injuries were inflicted by either or both RMM and/or KYB when HEP was under their care and control. 

13. However, there was no evidence admissible against RMM capable of establishing, beyond reasonable doubt, that HEP's injuries, in particular the subdural haematomas, were inflicted by RMM rather than KYB.

14. The State relies on the evidence that RMM admitted giving HEP 'a little shake' to wake him up on the morning of 17 June 2016,[253] that he was 'telling [HEP] off'[254] and 'growled'[255] at HEP at that time.  None of those statements by RMM were express or implicit admissions of a violent shaking of HEP's head, or of other physical violence directed towards HEP. 

    [253] See [49] - [54] above.

    [254] See [89] above.

    [255] See [96] of the Conviction Reasons.

15. If the trial judge had been satisfied that the subdural haematomas were sustained on the morning of 17 June 2016, then RMM's statements may have assisted the drawing of an inference that he was the person who shook HEP's head at that time.  Those statements were capable of supporting an inference that RMM became angry or annoyed at HEP for having wet himself and that it was RMM, rather than KYB, who attended to HEP at that time.  If it had been possible to conclude that the rotational injury was inflicted on the morning of 17 June 2016 then the evidence of RMM's statements could support the inference that he, rather than KYB, inflicted the injuries.  However, the trial judge was not able to be satisfied, beyond reasonable doubt, that the rotational injury was inflicted on the morning of 17 June 2016.  Indeed, by adopting what he referred to as the 'slow burn hypothesis', the trial judge sentenced RMM on the basis that the rotational injury was sustained prior to 17 June 2016.  The medical evidence left open the reasonable possibility that the rotational injury was sustained after the photograph of HEP was taken at school on Wednesday, 15 June 2016.[256]

    [256] See [75] above.

16. In that context, the force of the evidence of admissions made by RMM as to what happened on the morning of 17 June 2016 is diminished.  The admissions are not of violent conduct, and cannot be assessed on the basis that injuries were inflicted on HEP on the morning of 17 June 2016.  There was no other evidence of generalised violence by RMM towards HEP of the kind which produced the injuries observed in June 2016.[257]

    [257] Cf the evidence of HRB referred to at [82] above.

17. Statements by KYB made in her interview with police were not admissible evidence against RMM.  Statements made by KYB in the intercepted telephone conversations, which RMM did not expressly or implicitly adopt, were not evidence of the truth of the content of those statements.  For example, KYB's statements that she heard a banging noise from the bathroom, which RMM denied,[258] was not evidence of the truth of the statement that there were banging noises.  Equally, the hearsay rule precluded the trial judge from relying on out-of-court statements by HEP, to the effect that 'Dude' had inflicted his facial bruises, as evidence of the truth of that fact.

    [258] See Conviction Reasons [96] - [97].

18. There was no evidence that HEP sustained physical injuries before June 2016.  The evidence was that RMM's relationship with KYB began in early 2016.  While the timing may suggest that it was more probable that RMM, rather than KYB, inflicted the physical injuries observed in June 2016 it does not, considered either in isolation or in combination with the other evidence admissible against RMM, establish that fact beyond reasonable doubt.

1. Thirdly, in considering what he referred to as the 'acute catastrophic injury' hypothesis and the 'slow burn hypothesis', the trial judge took the approach that he should sentence on the basis most favourable to the accused where he could not be satisfied, beyond reasonable doubt, as to either scenario.  That approach is inconsistent with the decisions in Olbrich and Fillipou, referred to above.  The trial judge did not indicate that he was drawing an inference or making an assumption as to the basis on which the jury must have convicted the appellant.[259]  While this is not an error which worked against RMM, it is a departure from the proper approach of finding facts for the purposes of sentencing.

   [259] Cf Filippou [67].

2. Fourthly, the passage referred to at [182] above reveals a misunderstanding of the element of 'recklessness'. In PES,[260] Buss JA, with whom other members of the court agreed, observed that recklessness, within s 101(1)(b), does not mean negligence or carelessness. Rather, the provision is concerned with whether the accused had a 'conscious disregard' for the consequences of the conduct in which he or she allegedly engaged.

   [260] PES [21] - [23].

3. The judge has applied a test of 'criminal negligence' rather than the test described at [225] above. This may again be an error in RMM's favour, in that it would tend to lead the judge to wrongfully exclude conduct which may result in harm, and to which RMM deliberately shut his eyes, which the judge found did not pass the threshold of 'criminal negligence'. However, the error in the trial judge's approach remains.

4. For the above reasons, we are satisfied that the trial judge erred in sentencing RMM on the basis that he committed the offence against s 101 of the Act by inflicting the catastrophic neural injuries sustained by HEP. Ground 1 is not established to the extent that it alleged the trial judge to have found that RMM deliberately caused HEP's brain injuries. The trial judge did not make a finding that RMM intended to cause HEP's catastrophic injuries. However, ground 1 is otherwise established. As the trial judge sentenced RMM on an incorrect factual basis, the other grounds do not arise for determination.

Disposition of appeal against sentence

1. RMM was sentenced on an aggravating factual basis which was not open on the evidence and in a manner which involved punishing him for an offence of which he had not been convicted. 

2. Under s 31(4)(a) of the Criminal Appeals Act 2004 (WA), we may allow the appeal against sentence if we are of the opinion that a different sentence should have been imposed. Section 31(4)(a) has been construed as empowering this court to allow an appeal where insufficient facts have been found at first instance if, in its opinion, on the facts most favourable to an appellant on a rehearing, a different sentence should have been imposed.[261]  If this court is satisfied that a different sentence should have been imposed it will allow the appeal and either impose a new sentence that is either more or less severe or send the charge back to the court that imposed the sentence to be dealt with further.[262]

   [261] Pelemis [18].

   [262] Section 31(5) of the Criminal Appeals Act.

3. In the present case, the facts which constitute the offence by RMM have not been sufficiently found.  In particular, there has been no finding as to how RMM is liable for the offence with which he was charged.  Other errors, albeit favourable to RMM, were involved in the trial judge's approach to finding the facts relevant to sentence.  As this court has recently observed, it is essential for the circumstances of the commission of an offence to be established in order to ensure that any sentence imposed is commensurate with the seriousness of the offence.[263] 

   [263] See Hall v The State of Western Australia [2018] WASCA 151 [14].

4. In light of the above findings, we would hear from the parties as to the final orders which should be made in the appeal against sentence.  In particular, the parties should address the question of whether this court should find the relevant facts and proceed to resentence RMM, or whether the charge should be remitted back to the trial judge for resentence.  In addition, the parties should address the factual basis on which this court should resentence RMM if that course is adopted. 

Orders

1. For the above reasons the following orders should be made in the conviction appeal:

   (1)The applications to adduce additional evidence in the appeal dated 15 January 2018, 19 February 2018 and 14 June 2018 are granted.

   (2)Leave to appeal on the sole ground of appeal is refused.

   (3)The appeal is dismissed.

2. As noted above, we would hear further from the parties as to the orders which should be made in the appeal against sentence.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CR
ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL

30 OCTOBER 2018