SW v R - [2013] NSWCCA 103

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SW v R [2013] NSWCCA 103
Hearing dates: 30 November 2012
Decision date: 07 June 2013
Before: McClellan JA at [1]
Hall J at [138]
Davies J at [138]
Decision:
1. Leave to appeal against conviction refused.
2. Leave to appeal against the sentence granted.
3. By majority: sentence imposed by Hulme J. is quashed and in lieu, sentence the appellant to a non-parole period of 30 years commencing 17 November 2007 and expiring 16 November 2037 with an additional term of 10 years expiring 16 November 2047.

Catchwords: CRIMINAL LAW - appeal - Conviction appeal - murder of 7 year old daughter by mother - whether trial judge erred in directions on accused's alleged lies -corroboration evidence relevant to an accused's mental state - directions on consciousness of guilt evidence - directions in relation to the burden in proving intention in circumstances involving intoxication and drug use SENTENCE APPEAL - manifest excess - life imprisonment - consideration and application of s 61Crimes (Sentencing Procedure) Act 1999.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Rules
Cases Cited: Bellchambers v R [2008] NSWCCA 235
BW v R [2011] NSWCCA 176
DJF v R [2011] NSWCCA 6
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hopley v R [2008] NSWCCA 105
House v The King [1936] HCA 40; (1936) 55 CLR 499
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
R v Ainsworth (1994) 76 A Crim R 127
R v Alexander [1999] NSWSC 413
R v BW & SW (No 3) [2009] NSWSC 1043
R v Cheatham [2001] NSWSC 580
R v Cheatham [2002] NSWCCA 360
R v Cikos [2001] NSWSC 35,
R v De Gruchy [2000] NSWCCA 51; (2000) 110 A Crim R 271
R v Folbigg [2003] NSWSC 53
R v Folbigg [2003] NSWSC 859
R v Fraser [2004] NSWSC 53
R v Fraser [2005] NSWCCA 77
R v Garforth (Unreported, Court of Criminal Appeal, 31 March 1994)
R v Gorman and Armstrong (Unreported, NSWSC, Badgery-Parker J, 25 August 1995)
R v Grant [2002] NSWCCA 243
R v Holton [2004] NSWCCA 214
R v Hughes and Ashfield (Unreported, NSWSC, Badgery-Parker J, 16 December 1994)
R v Israil [2002] NSWCCA 25
R v Jalaty [2006] NSWSC675
R v Jang [1999] NSWSC 1153
R v Kalajzich (1997) 94 A Crim R 41
R v Lane [2011] NSWSC 289
R v Mehta [2009] NSWSC 814
R v Merritt [2002] NSWSC 1159
R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557
R v Park (Unreported, NSWSC, Sperling J, 3 August 2000)
R v Park [2003] NSWCCA 142
R v Petroff (Unreported, 12 November 1999 NSWSC)
R v Pfitzner [2009] NSWSC 1267
R v Pfitzner [2010] NSWCCA 314
R v PJS[2009] NSWSC 153
R v RHB [2007] NSWSC 1466
R v Sullivan [2011] NSWCCA 270
R v Tripodina (1988) 35 A Crim R 183
R v Valera [2002] NSWCCA 50
R v Velevski (Unreported, NSWSC, Dunford J, 26 September 1997)
R v Walsh [2009] NSWSC 764
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409
Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
Category: Principal judgment
Parties: SW (Applicant)
Crown
Representation: Counsel:
D Dalton SC (Applicant)
P Ingram SC (Crown)
Solicitors:
William O'Brien & Ross Hudson Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2008/15683
Publication restriction: Non-publication of any information that would identify the deceased child or her siblings
Decision under appeal

Citation:

NSWSC 1043

Date of Decision:

2009-10-02 00:00:00

Before:

R A Hulme J

Judgment

McCLELLAN JA: The applicant was tried with a co-accused, her husband BW, before R A Hulme J and a jury for the murder of their seven-year-old daughter, "Ebony", contrary to s 18(1) of the Crimes Act 1900. The offence carries a maximum penalty of life imprisonment: Crimes Act s 19A(1). As Ebony was under 18 years at the time of her death, the standard non-parole period for the offence is 25 years: Item 1b of the Table in Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999.

On 23 June 2009, the jury found the applicant guilty of murder. BW was found not guilty of murder but guilty of manslaughter contrary to s 18(1)(b) of the Crimes Act. Manslaughter carries a maximum penalty of 25 years imprisonment: Crimes Act s 24.

On 2 October 2009, the trial judge sentenced both the applicant and BW. The applicant was sentenced to life imprisonment. BW was sentenced to imprisonment for a term of 16 years, with a non-parole period of 12 years.

The applicant raised two grounds of appeal against conviction and one against sentence. The grounds of appeal are as follows:

Ground 1:

(a) His Honour failed to appropriately direct the jury as to how they could use the evidence of the accused alleged lies (sic).

(b) His Honour erred in his comment as to the lack of alleged corroboration (and therefore her lack of credibility) as to the applicant's claimed state of mind during the time of the child's deteriorating health leading up to her death.

(c) His Honour failed to direct the jury as to how they could use the evidence of the conduct capable of being construed as evidencing consciousness of guilt.

(d) His Honour failed to direct the jury with respect to the alleged lies told to her husband.

Ground 2: His Honour failed to direct the jury that before they could convict the appellant upon murder they had to be satisfied the Crown had proved beyond reasonable doubt that the appellant was not so intoxicated as a result of prescribed drugs she was taking alone and/or in combination with other matters she said were affecting her state of mind as to be able to form the specific intent necessary for murder. In other words, to thereby realise that her child was probably going to die.

Sentence Ground 1: In all the circumstances the sentence imposed was too severe.

Background

It is necessary to set out the background to the offence and the events at the applicant's trial that are said to have given rise to a miscarriage of justice. It will be necessary to quote passages, sometimes lengthy, from the trial judge's summing-up.

A detailed summary of the background to the offence is set out in the judgment of Whealy J in BW v R [2011] NSWCCA 176, a decision of this Court dealing with an appeal brought by the applicant's husband against his sentence for manslaughter. The Crown also supplied me with its own summary of the facts. I have drawn on both in preparing the following.

The applicant and BW were married on 7 May 1992. They had four daughters, including the deceased. The eldest, CW, was born on 15 September 1992. TW was born on 22 March 1994. Ebony was born six years later on 22 March 2000. The youngest, BrW, was born on 2 March 2002.

From the time of her birth Ebony experienced a series of physical and developmental problems. She weighed only 2.9 kilograms at birth. In the first few years of her life she failed to thrive or meet developmental milestones. She was diagnosed as having a global development delay, a diagnosis given to children who experience delay in two or more important areas of development. During this time her weight was abnormally low. She was slow to begin crawling and was still unable to walk when she was 22 months old. She also struggled to develop verbal communication skills. At 34 months of age she was assessed as functioning as a child of 13 to 16 months.

The Department of Community Services ("DOCS") had ongoing involvement with the family from at least 2002. In June of that year, when BrW was only 13 weeks old, she was removed from the care of her parents by DOCS because of a "failure to thrive". The term "failure to thrive" is used to refer to children whose current weight or rate of weight gain is significantly lower than that of other children of similar age and gender. Despite the removal of BrW and a number of visits by DOCS to the family home, no community services officer saw Ebony at any time.

By the time that Ebony was four years old she was gaining weight at a normal rate, though her weight was still below average. By the time she was five, she weighed 19.6 kilograms and was described by a specialist as "a well nourished short girl". Around that time, in April 2005, Ebony was formally diagnosed with autism and was prescribed medication. Very little attempt was made by her parents to provide her with such medication.

In February 2006 Ebony was admitted to Sydney Children's Hospital for a hernia repair. She weighed 20.5 kilograms at that time. At trial, evidence was tendered that had her weight continued to increase at a normal rate it would be expected that she would have weighed approximately 26 kilograms at the time of her death in November 2007. In March 2006 Ebony made her last visit to a medical professional when she saw a general practitioner to receive vaccinations. The doctor described Ebony as being "quite a chubby six year old" at that time.

By the time that she was six years old, Ebony still had not commenced school. In August 2006 the applicant obtained a certificate from a general practitioner excusing her from attending school for the rest of that year due to her global development delay.

The applicant, BW and the three daughters still in their care resided in a Department of Housing property in Matraville, New South Wales, from 2001 until August 2007.

The family's neighbours at the Matraville address gave evidence at trial. A woman who lived next door gave evidence of seeing Ebony outside the home on only one occasion, in May 2006. On this occasion the neighbour thought that Ebony was a "healthy, chubby looking girl". Otherwise, the neighbour only ever saw Ebony in her bedroom, the window of which faced her home. She never saw anyone else with Ebony in the room and gave evidence that Ebony appeared to be left in the room for lengthy periods of time with the door closed. In late 2006 or early 2007 the window to Ebony's room was broken and repaired with a piece of plywood. Although the neighbour could still hear Ebony, she did not see her again after this time.

In April 2007 the Department of Housing visited the home and found it to be "in a putrid state". Another neighbour of the applicant gave evidence that she went into the house at Matraville soon after the family moved out in August 2007. She said that Ebony's room had piles of faeces in the corner and that the room had a bad smell of faeces and urine.

In August 2007 the family relocated to a privately rented home in Hawks Nest. The last known person to see Ebony alive, outside of her immediate family, was a removalist engaged to transport the family's belongings to their new home. He was told not to go into Ebony's room at Matraville as she was autistic and would be upset if woken. He later saw Ebony in one of the rooms in the Hawks Nest home. He described her as being "unusually skinny" and believed that she looked about three years of age. She was in fact aged seven years and five months at the time.

At 7.00am on the morning of Saturday, 3 November 2007, the applicant found Ebony dead in her room. At approximately 1.00pm that afternoon BW made a 000 call. NSW Ambulance Officers Adam Diamond and Timothy Kirkpatrick went to the home. The applicant told Officer Diamond that when she found Ebony the child was blue and not breathing. She said that she had attempted to resuscitate Ebony but the child had bull ants in her mouth. She said that she realised that there was nothing she could do and just sat with the child in her arms and sang to her for the next couple of hours. She said that as she could not handle what had happened, she took two Valium tablets and 20 Panadol tablets and went to bed.

Photographs taken at the scene show that Ebony's body was clothed and lying on a mattress on the floor. No sheets were fitted to the mattress. Her body was partly covered with a doona and a towel, both of which had dark stains on them. A second towel was found under her body.

At the trial, Dr Nadesan, a forensic pathologist who visited the home on the day Ebony was found dead, gave an account of the state in which he found the child. Dr Nadesan gave evidence that Ebony was "wasted and dehydrated" and "in an extreme degree of emaciation". He said that her corpse "looked almost like a mummy to me". He described her clothing and bedding as being heavily stained with vomit, faecal matter and other bodily fluids that appeared to have accumulated over a period of time. The room smelt strongly of urine and he could detect other unpleasant odours.

Dr Nadesan conducted a post-mortem examination of Ebony's body. Ebony weighed only nine kilograms at the time of death. This was approximately one third of the weight that it was predicted that she would attain in November 2007, had she continued to grow and be nourished as expected. Dr Nadesan concluded that Ebony's death was caused by "starvation and neglect". He further expressed the view that Ebony's death was the result of "chronic" rather than "acute" starvation. Dr Nadesan described chronic starvation as "a periodical reduction in the administration of food and fluids and so forth - this kind of scenario will go on for several months before a person would succumb to it".

Dr Edward O'Loughlin, a specialist gastroenterologist at Westmead Children's Hospital, also gave evidence. He said that Ebony's death was the result of chronic malnutrition caused by starvation. He said that the starvation was, in turn, a result of profound neglect. Dr O'Loughlin said that the lack of food in the gastrointestinal tract indicated that it had been many hours or days since Ebony had last eaten solid food. He said it would have taken "weeks" at a minimum for a child to reach the stage Ebony was at when she died. Dr O'Loughlin said that he had treated many hundreds of children for malnutrition over many years, but he had never looked after someone so malnourished. He gave evidence that solid faecal matter or "starvation stools" were found in Ebony's bowels. He said that they had been there for a long time and that they indicated a lack of solid food intake for days to a couple of weeks. In Dr O'Loughlin's view, it would have been obvious to anyone observing Ebony shortly before her death that she was about to die.

On 9 November 2007, police executed a search warrant at the Hawks Nest property. The police located a large quantity of prescriptions and prescription medication in the house.

Evidence bearing on the applicant's state of mind

Both the applicant and BW gave evidence that they were heavy users of drugs such as Valium, Panadeine Forte and Panamax. The applicant explained that she relied on the drugs to treat ongoing pain from a fall she had suffered in 1999 as well as anxiety problems dating back to 1992. She said that from 2005 to 2007, she was taking about 10 Panadeine Forte each day. Later in her evidence she said that, in the eight-week period at Hawks Nest, she would take eight to 10 Panamax, six to 15 Valium, two to six Voltaren Rapid, and eight to 12 Panadeine Forte on a daily basis. The applicant said that the drugs made her feel like she was in a "dream-like state", as if she "wasn't really there". She also gave evidence that the drugs slowed her down. In cross-examination, the applicant denied that she was lying about her drug intake so as to give the impression of "being so zonked" that she failed to notice Ebony's weight loss.

Professor Graham Starmer gave evidence for the applicant. He agreed that the statement "I wasn't really there, felt spacey and dream-like, as if things were not real" (said by the applicant in evidence in chief) was consistent with a description by a person who might be using eight to 10 Panamax, six to 15 Valium, and eight to 12 Panadeine Forte per day. Professor Starmer said that simple tasks such as making a purchase would be relatively resistant to the effects of the drugs, although tasks involving judgment would be more affected. He conceded that diazepam, the active constituent of Valium, might affect a person's memory, but added that this had to be offset against the tolerance that the person may have developed. Professor Starmer cited fatigue, drowsiness, confusion and depression as other possible side effects of diazepam. He cited nausea, vomiting, constipation, dizziness, drowsiness and impaired mental and physical abilities as possible adverse reactions to the codeine component in Panadeine Forte. Professor Starmer again added that long-term use of either drug would lead to the build-up of a tolerance, with the result that the person would not suffer the same effects unless the dosage were increased. He gave evidence that a person under the influence of these drugs in sufficient quantities would still be able to perform simple or routine tasks to a competent standard, but might face difficulties in performing unusual or difficult tasks or tasks involving the exercise of choice. Professor Starmer said that a person such as the applicant, who took the drugs at different times throughout the day, would be less affected than a person who took the drugs all at once.

The applicant gave evidence about her perception of Ebony's physical condition after the move to Hawks Nest. She said that she remembered Ebony being only "a bit thinner" than she was in 2005 and 2006. The applicant added that at no point prior to Ebony's death did she notice a distinct change in Ebony's appearance or conditioning. The applicant said that she had seen and was shocked by the autopsy photos of Ebony, although she "didn't see her [Ebony] as being like that" at any time before her death. Rather, the applicant said, she perceived Ebony to be the same "chubby six-year-old child" she was some 20 months earlier. The applicant said that at no time in the period between March 2006 and Ebony's death did she ever think there was any need for Ebony to see a doctor.

The applicant also gave evidence about her psychological state at Matraville and Hawks Next. She said that from 2005, she felt very depressed and was distressed by the involvement of DOCS in the family's affairs. The applicant's depression continued after the move to Hawks Nest. She said that she did not feel appreciated and that she felt nothing she did was worthwhile. The applicant said that these feelings persisted up to the date of Ebony's death.

The applicant gave evidence that two weeks before Ebony died, she had told BW that she "was concerned about her with the vomiting and diarrhoea and also about her seeing a doctor". According to the applicant, BW said in reply that Ebony had been through that before, that she would be fine, and that there was no need for her to see a doctor. The applicant agreed with BW's assessment. The applicant said that although Ebony's vomiting and diarrhoea continued in the two weeks before her death, she did not consider taking Ebony to a doctor because in her view the condition was insufficiently serious. The applicant said that sometime during this period, BW had said to her, as she was taking Ebony to bed, that "if it [the vomiting and diarrhoea] kept up she might die". The applicant told BW "not to be silly and that she would be fine, she would come good". BW denied in his evidence that these conversations took place.

The applicant gave evidence that on Friday, 2 November 2007, the day before Ebony was found dead, she woke Ebony at about 4.00am and guided her by the hand to the lounge room. The applicant said that she lifted Ebony up and placed her on the lounge before going to the kitchen to heat Weetbix and muesli with which to feed Ebony. When the applicant came back to feed the child, Ebony indicated that she wanted to sit on the floor, so the applicant helped her move from the lounge to the floor. The applicant started to feed her, but Ebony had only a few teaspoons before pushing the bowl away. According to the applicant, Ebony was up for about an hour and a half to two hours. For most of this time she was lying down. The applicant said that she put Ebony back to bed sometime between 5.30 and 6.00am.

The applicant said that she woke Ebony up again at about 6.00pm on the Friday. Again she held her hand as they walked down the hallway to the lounge room. The applicant placed Ebony on the floor and attempted to feed her soft food and some soft drink. At about 7.30pm, the applicant helped Ebony up, held her hand and walked her to bed.

The Crown argued that the expert evidence had called into question the applicant's account of the events on the Friday night. In his evidence, Dr O'Loughlin doubted that early on the Friday morning Ebony would have been able to walk, even if someone were holding her hand. Dr O'Loughlin very much doubted Ebony would be able to sit unsupported because the muscles around her trunk, spine and chest would have been incapable of supporting her weight. He conceded that it was possible, if Ebony were conscious, for her to swallow soft food. However, it was Dr O'Loughlin's opinion that Ebony was probably comatose in the days leading up to her death, and that only her vital functions, such as heartbeat and respiration, would have been active in the 24 hours before her death. Dr Dimitra Tzioumi, a specialist paediatrician at Sydney Children's Hospital in Randwick who saw Ebony in 2002, gave evidence that it "was not possible medically" that Ebony appeared well on the Friday evening.

Finally, BW said in his evidence that the applicant had said to him, shortly after the discovery of Ebony's dead body, "We have to get rid of the body". The applicant denied having said this.

In the summing-up, the trial judge gave directions with respect to the state of mind that the jury would have to be satisfied of in order to find BW and the applicant guilty of murder. His Honour correctly identified for the jury that a prerequisite to a murder conviction was that each of the accused had either an intention to kill the deceased or was recklessly indifferent to human life, in that they foresaw that Ebony's death was a probable consequence of their acts or failure to act but nevertheless persisted in their course of conduct. His Honour emphasised that each of the accused denied having had the relevant state of mind at the relevant time.

The following extract of the summing-up provides a useful summary of the argument mounted by the applicant about her state of mind:

"So Mr Stewart [counsel for the applicant] then isolated and identified for you the single issue in the trial of his client, whether the Crown was able to prove beyond reasonable doubt that [SW] realised that by her omission to act [Ebony] would probably die and he then presented a number of arguments to you as to why you would not find that this had been proved to the required standard, that is beyond reasonable doubt. He referred to the Crown's argument 'Who in their right mind would feed a child with vomiting and diarrhoea, Weetbix and muesli?' Mr Stewart said this points to the issue of the state of mind of [SW] in the days leading up to [Ebony's] death. If she was trying to get rid of her, why would she bother to feed her such things? He said that a person might if they are negligent. Rather than an attempt to get rid of the child, Mr Stewart submitted that it was just an inappropriate response.

He submitted that [SW] had issues and problems. She found it very difficult to cope with the responsibility of care of her children. Reference was made to [Ebony] being very thin at the time of the move from Matraville and her experience in vomiting and diarrhoea at Hawks Nest. Mr Stewart then referred you to the history of problems that [Ebony] had experienced throughout her life. He submitted that there was a history of [SW] failing to cope and falling down in the care of her daughter. He also referred to what he submitted was a coincidence of the observations of [SW] failing to cope and falling down in the care of her daughter. He also referred to what he submitted was a coincidence of the observations of [SW] herself at the same time as doctors were noticing problems with [Ebony], for example, when Dr Ktenas saw [Ebony] at the age of 12 months he also noted that [SW] looked thin.

Mr Stewart also referred to the evidence of the police officer in charge of the case and of the handyman who both remarked about the difference in appearance of [SW] between when they saw her in 2007 and when they saw her in the courtroom. They both said in effect that she looked healthier now, notwithstanding, Mr Stewart said, she was in the dock under the stress of being on trial for murder.

Mr Stewart said there was no single explanation for why his client did not see the dire condition that he child was in. He said the explanation lay in a combination of factors. He referred to her drug use, her depression, the removal of [BW], the chronic pain that [SW] was in, the relative social isolation in which she was living, the fact that she had not seen her mother for over a decade and her being in a relationship with a man who was addicted to Valium.

Mr Stewart submitted that you should have regard to all of the those things that were going on in her life and their cumulative effect which produced a situation in which she could not cope well and could not fully appreciate what was happening with [Ebony]."

The trial judge gave the following directions in respect of the applicant's testimony about her state of mind:

"I think it is appropriate that I make a comment to you about that submission, ladies and gentlemen. You should bear in mind that whilst you had evidence from a number of witnesses about these difficulties that [SW] was experiencing, there is no evidence from anyone other than [SW] herself that these difficulties had an effect upon her ability to appreciate what was occurring with [Ebony], that her physical condition was being adversely affected by inadequate nutrition and that her decline reached a stage where she was badly in need of nourishment and/or medical attention. None of the doctors or any of the other witnesses gave evidence that any of these difficulties, either on their own or in combination, would have a bearing upon [SW's] capacity to understand the physical condition of the child. Mr Stewart's submission was that these matters were relevant to his client's state of mind at the time. They are matters that you may take into account.

However, as I said, you should bear in mind that the evidence that her state of mind was such that she did not see the decline of [Ebony] came from [SW] alone."

Alleged lies and conduct capable of being construed as evidence of consciousness of guilt

It is necessary to identify the alleged lies and conduct that form the basis of Grounds 1(a) and 1(c) of the appeal.

The first alleged lie of which the applicant complains was central to the Crown case. The applicant told the ambulance officers who attended the scene that she did not appreciate the seriousness of Ebony's condition. She repeated that claim to the police officers who executed the search warrant at the Hawks Nest property, as well as in the evidence she gave at trial. The Crown argued that it beggared belief that the applicant did not realise that Ebony's condition was rapidly deteriorating and that her death was imminent.

The second alleged lie of which the applicant complains arose from the account BW and the applicant had given about Ebony's condition on the night before she died. As explained above, the Crown relied on the evidence of Dr O'Loughlin to argue that this account could not be true.

BW told the police in his interview of 5 November 2007 that, on the evening of 2 November 2007, he saw Ebony in the lounge room sitting up in front of the television. The Crown argued that this was a lie going to consciousness of guilt, as the medical evidence indicated that Ebony would have been physically incapable of having done so. BW conceded at trial that what he told the police was a lie. He said that he was merely repeating what the applicant had told him, that he had no personal knowledge about the matter, and that he had lied in order to protect his wife. In summing up, the trial judge gave an "Edwards direction" (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193) about the use to which the jury could put the lie:

"But I need to give you a legal direction about that particular lie that the Crown says that [BW] told the police and [BW] concedes he told the police. Before you can take a lie into account as evidence of the guilt of the accused, you must be satisfied that it was, in fact, not only a lie but also a deliberate lie. If you are not so satisfied that it was a deliberate lie, well then you cannot use it for this purpose, that is, as evidence of guilt of the accused. If you are, however, satisfied that it was a deliberate lie, then you must also be satisfied that it was a lie that first, relates to an issue that is material or relevant to the offence charged and second, it reveals a knowledge of the offence or some aspect of it and third, that it was told because the accused knew the truth of the matter about which he lied would implicate him in the offence or, to put it another way, because of a realisation of guilt and a fear of the truth. I emphasise that you must be satisfied that what was in his mind was guilt of the offence charged and not some other crime."

Consistently with BW's evidence, the applicant said that Ebony was sitting up in the lounge room, that she fed Ebony, and that she helped Ebony walk to her bedroom (see above at [28]-[29]).

The third alleged lie of which the applicant complains related to a soiled nappy containing urine and hard stools which was found by police in a bin at the Hawks Nest home. The applicant said it was the nappy Ebony had been wearing on the night of 2 November 2007, and that she had fitted Ebony with a fresh nappy before putting the child to bed that night. The Crown disputed this account. It was put to the applicant in cross-examination that the hard stools in the nappy were inconsistent with Ebony having eaten very little and having suffered from diarrhoea shortly before her death. The Crown ultimately suggested in closing that the nappy in question had been worn by Ebony for some time before her death. The suggestion was that the applicant had lied because the truth would have implicated her in the offence by disclosing a failure to tend to the child's needs.

The fourth alleged lie related to the applicant's claim that in the two weeks leading up to Ebony's death she expressed to BW concerns about Ebony's wellbeing (see above at [27]).

The fifth alleged lie was the applicant's denial that she suggested to BW that they get rid of Ebony's body (see above at [31]).

In relation to the conduct referred to in Ground 1(c), the applicant complains that his Honour did not give any directions about the fact that Ebony did not appear in family photographs from mid-July 2006 onwards. At trial, the applicant said that Ebony did not figure in the photos because she made a nuisance of herself whenever they were being taken. The Crown suggested that the applicant had taken care not to include Ebony in the photographs because she was aware of Ebony's pitiful state. For the reasons I give below, this conduct could not be attributed to the applicant's consciousness of guilt.

Also relevant to Ground 1(c) are the allegations that the applicant feigned a suicide attempt after Ebony's death in order to disguise her true state of mind; that the applicant photographed a bull ant in Ebony's room in order to support her false story that bull ants were coming out of the deceased child's nose and mouth; and that the applicant and BW had fled to the South Coast soon after Ebony's death in order to evade the police.

The trial judge instructed the jury as to the relevance, or lack thereof, of the applicant's alleged lies in view of her concession that she was guilty of manslaughter:

"Now, given that [SW] concedes that she is guilty of manslaughter, any lie that you find that she told you is incapable of assisting you in determining whether she is guilty of murder. It really has no value in that task. Any lies that you are satisfied she told, either to the police or in her evidence here and any lies in addition to the one I have mentioned that you are satisfied [BW] told, either to the police or in his evidence here, are only relevant to your assessment of their credibility. That is, your assessment of whether you can believe what they have said."

The trial judge did not give any such direction in relation to the use of the applicant's post-offence conduct as a basis for choosing between verdicts of murder and manslaughter. The direction was limited in its terms to the alleged lies.

Ground 1(a): His Honour failed to appropriately direct the jury as to how they could use the evidence of the accused alleged lies (sic).

Ground 1(c) His Honour failed to direct the jury as to how they could use the evidence of the conduct capable of being construed as evidencing consciousness of guilt.

Ground 1(d) His Honour failed to direct the jury with respect to the alleged lies told to her husband.

It is appropriate to deal with these grounds together, as they each invoke the concept of consciousness of guilt reasoning. Counsel below made no relevant objection to the directions of the trial judge that are now complained of in this appeal. Accordingly, the applicant requires leave to appeal for these grounds, pursuant to Rule 4 of the Criminal Appeal Rules.

The crux of the applicant's submissions on these grounds is as follows. The sole issue in the trial was the applicant's mental state in the period leading up to Ebony's death, and in particular whether the applicant foresaw the probability of Ebony's death. This was because there was no dispute that the applicant was at least guilty of manslaughter. The applicant gave evidence about her mental state. Whether the jury accepted that evidence necessarily rested upon their view of the applicant's credibility. Accordingly, when the trial judge told the jury in the portion of the summing-up extracted at [45] that the only purpose for which they could use the alleged lies was in evaluating the applicant's credibility, the jury might have mistakenly understood that direction to mean that if they took an adverse view of the applicant's credibility on account of the lies, they could thereby conclude that she was guilty of murder. The applicant's complaint is that the jury might have reasoned, quite illogically, that she had the mental state for murder because they did not believe her when she said she did not. The applicant submitted that for the jury so to reason would have amounted to a reversal of the onus of proof.

What the trial judge was attempting to convey by his direction was that there was no logical process of reasoning by which the jury could find that the lies proved that the applicant was guilty of murder rather than manslaughter. The lies, if proved, could demonstrate the applicant's acknowledgement that she had committed a crime (either the murder or manslaughter of Ebony). But they could not rationally speak to whether she committed that crime with the mental state for murder. The lies were of no probative value on that question. However, while the lies could not be used for this purpose, the jury could consider them in deciding what weight to give the applicant's evidence more generally.

The applicant also submitted that the manner in which the Crown presented its case gave rise to a significant risk of misunderstanding on the part of the jury as to how they could use the applicant's alleged lies and other post-offence conduct. According to the applicant, that risk made it necessary for his Honour to give an Edwards-type direction in relation to the applicant, despite the Crown's disavowal of any reliance upon consciousness of guilt reasoning in relation to her. The applicant relied on what was said by Gleeson CJ, Gaudron, Gummow and Callinan JJ in Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 at [16]-[17]:

"There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, 'the accused knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.)

Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged."

Counsel for the applicant argued that the Zoneff direction was necessary because of the structure and content of the trial judge's summing-up, together with the Crown's many suggestions that the applicant had lied about various matters. His Honour highlighted for the jury at the outset that the alleged lies told by the applicant could be used only to assess her credibility. However, the applicant's credibility was the central fact in issue, in that she denied being aware of Ebony's deterioration in the period before the child's death. The applicant accordingly argued that when the trial judge proceeded to summarise the Crown case in detail, including the suggestions therein that the applicant had lied about various matters, the jury might have been led to conclude that the applicant was guilty of murder solely because she could not be believed when she denied having foreseen Ebony's probable death. The applicant cited specific portions of the summing-up to support this submission. I have set out some of the relevant extracts below, with emphasis on the particular passages that are said to have undermined the direction:

"After referring to that evidence, Mr Crown submitted that you would reject the claim by [SW] that she just did not see the condition of her child being as bad as it was. He referred to the evidence she gave at the end of her cross-examination in which she agreed that anyone who saw the child get into that condition in the last week or weeks of her life would realise that, without medical attention or adequate nourishment, it was a certainty the child would die.

...

Given the early history of poor weight gain for [Ebony] and the Department of Community Services taking away baby [BW] for having lost weight, the Crown Prosecutor submitted that you would expect that [SW] would be hyper vigilant to notice any changes in the condition of her child, particularly as to her weight. He referred again to Dr Tzioumi who said that since [Ebony] weighed 20 kilograms in early 2006 she would have put on another 6 kilograms by November 2007 but the evidence was that she lost more than half of her weight. Mr Crown suggested the reason [SW] was saying she did not notice the decline of her child was because that if she did say that she did not notice it, then that would in effect be the end of the matter.

...

Generally as to [BW's] police interview and what he said to various ambulance and police officers who came to the house on the day of [Ebony] death, [BW] claims that the things said about [Ebony] were simply things he was repeating from what [SW] had told him. Mr Crown submitted that if that were the case they would have had to have been relayed to him by [SW] at some time between her telling him that [Ebony] had died and him making the 000 call. He submitted that was unlikely and the more likely it was the case of the two accused having got their heads together at an earlier time.

...

In relation to the nappy found by police in the rubbish, Mr Crown submitted that you would not accept that it had been worn by [Ebony] on and only on the night of her death, given the extremely minimal intake of food and liquid she had experienced for some weeks. He gave you a number of reasons for you to conclude that the claim by [SW] that she had put this on as a fresh nappy on the Friday night was, he said, 'ridiculous'."

Grounds 1(c) and 1(d) raise more specific complaints about the directions.

Under Ground 1(c), the applicant submitted that even if there were no risk that the jury misunderstood his Honour's direction about the lies, the trial judge's direction was limited only to the spoken lies and did not extend to evidence of conduct (including statements other than lies)which, on one view, might have suggested the applicant's consciousness of guilt for murder: see DJF v R [2011] NSWCCA 6 at [44] (Adams J). In the latter category was the allegation that the applicant had said to BW, "we need to get rid of the body", as well as the allegations that the applicant had feigned a suicide attempt and had taken a photo of a bull ant in Ebony's room in order to shore up her claim that she found Ebony with bull ants pouring out of her nose and mouth. The applicant submitted that, as with the alleged lies, there was no logical process of reasoning by which the jury could find that conduct of this kind proved that the applicant was guilty of murder rather than manslaughter. The applicant submitted that his Honour's failure to address the use that could be made of the conduct gave rise to a miscarriage of justice, as the jury may well have used the conduct to reason that the applicant had the mental state for murder.

Under Ground 1(d), the applicant took issue with the lack of directions about the prosecutor's suggestion that the applicant and BW had "put their heads together" to come up with a false story about their observations of Ebony on the Friday night. The applicant complained that the trial judge made no reference to BW's evidence that the applicant had lied to him about her observations of Ebony on the Friday night. The jury apparently accepted BW's explanation that he had presented the applicant's account to the police as his own in order to protect his wife. The applicant said that it was misleading in the circumstances for his Honour not to give an Edwards-type direction in relation to the suggested collusion between the applicant and BW. According to the applicant, such a direction was necessary in order to focus the jury's mind on the possibility that the applicant might have lied to BW not out of consciousness of guilt, but out of a concern that DOCS would take custody of her children if it were discovered that Ebony had died under the applicant's care.

The Crown argued on the appeal that the jury must have found the applicant guilty of murder on the basis of evidence other than her testimony, such as inferences drawn from the post-mortem photographs of Ebony and expert evidence regarding Ebony's deteriorating physical condition in the lead-up to her death.

The Crown submitted that an Edwards-type direction should not have been given, as the giving of the direction would have misleadingly suggested to the jury that consciousness of guilt reasoning was available in relation the applicant. The Crown submitted that there was never any suggestion at trial, or in the trial judge's summing-up, that the alleged lies or post-offence conduct could be used to discriminate between verdicts of murder or manslaughter. The Crown placed particular reliance on his Honour's direction to the jury that "any lie that you find that she [the applicant] told you is incapable of assisting you in determining whether she is guilty of murder. It really has no value in that task." The Crown said that in those circumstances, the effect of an Edwards-type direction would have been to underscore a process of reasoning that was not available to the jury. The Crown argued that trial counsel for the applicant had made a sound tactical decision in not seeking further directions.

The Crown then submitted that, even if an Edwards-type direction were warranted in the circumstances, the trial judge's directions achieved much the same result, as their effect was to prohibit the jury from using any of the alleged lies as the basis for a conclusion that the applicant had the mental state for murder.

The Crown conceded that the trial judge did not specifically direct the jury that they could not differentiate between verdicts of murder and manslaughter on the basis of the applicant's post-offence conduct. However, the Crown submitted that this was of no moment. This was because the jury would have inferred, from the direction his Honour had given about the spoken lies, that the post-offence conduct similarly did not cast any light upon the applicant's mental state at the time of the offence.

As to Ground 1(d), the Crown submitted that the suggestion of collusion between the applicant and BW did not result in a miscarriage of justice. The Crown argued that the suggestion of collusion needed to be seen in the light of its context. At the time the Crown made that suggestion, the applicant had not yet conceded that she was guilty of manslaughter. Accordingly, the fact of collusion was probative of whether she was guilty in a general sense, although it could not properly be used to discriminate between verdicts of murder and manslaughter. However, the alleged collusion ceased to be relevant to the applicant's case once she accepted responsibility for manslaughter. So much was accepted by the prosecutor. The trial judge made plain to the jury that the applicant's lies could not be used to discriminate between verdicts of murder and manslaughter. The Crown argued that even if this direction did not by its terms encompass the collusive conduct, the jury would have surmised that the direction applied equally to such conduct because of the interrelationship between the alleged collusion and the resulting lies about Ebony's behaviour on the Friday night.

Finally, the Crown submitted that even if the applicant had demonstrated some error that warranted a grant of leave under Rule 4, the Court ought to dismiss the appeal. The Crown argued that no substantial miscarriage of justice had occurred, as the trial judge had expressly precluded the jury from using any of the applicant's alleged lies to discriminate between verdicts of murder and manslaughter. The Crown argued that this direction extended, at least by implication, to the applicant's post-offence conduct and alleged collusion.

Conclusion on Grounds 1(a), 1(c) and 1(d)

It is difficult to accept the proposition that the trial judge's summing-up invited the jury to invert the onus of proof. The jury would have reached a conclusion as to the applicant's mental state from the circumstances as a whole, not just the applicant's evidence. They had before them Dr O'Loughlin's evidence to the effect that Ebony's life-threatening condition in the period before her death would have been obvious to anyone who saw her. They also had before them the autopsy photos, which showed what Ebony would have looked like shortly before her death. On the basis of this evidence alone, it was open to the jury to find beyond reasonable doubt that the applicant had foreseen that Ebony's death was a probable consequence of her continuing failure to provide the child with sufficient nourishment and care. It would be unreal to suggest that the jury's rejection of the applicant's evidence was the sole foundation for the finding of guilt. The jury had before them objective evidence that was rationally capable of informing their view of the applicant's mental state at the relevant time.

There is no merit in the applicant's complaint that his Honour should have told the jury that they could not use the applicant's post-offence conduct or her incriminating statement about burying the body as a basis for distinguishing between verdicts of murder and manslaughter. If there were any real danger that the jury would misuse the statement or the post-offence conduct in its reasoning process, counsel absorbed in the atmosphere of the trial could be expected to have made an application for more specific directions about these aspects of the evidence: R v Tripodina (1988) 35 A Crim R 183 at 191 (Yeldham J). In any case, it is by no means obvious that the jury would have considered this process of reasoning logical unless specifically told otherwise by the trial judge. A moment's reflection would reveal that an attempt by the applicant to conceal Ebony's body could not in any way prove that she was recklessly indifferent to Ebony's life, or that she intended to kill the child, in the days, weeks and months leading up the death. No specific direction to this effect was required.

I turn now to the suggestion that the applicant deliberately left Ebony out of family photographs from mid-July 2006 onwards because she was aware of the child's pitiful condition. To my mind, this was properly left to the jury as a fact which, if proved, was rationally capable of satisfying the jury that the applicant had the mental state for murder. The deliberate exclusion of Ebony from the photographs could be taken to suggest that the applicant was aware of the child's parlous state for a considerable period of time before her death. The applicant's awareness of Ebony's condition might have implied some realisation on her part that Ebony's death was probable if she did not tend to the child's needs. Accordingly, his Honour was not required to tell the jury that the applicant's deliberate exclusion of Ebony from the photographs, if proved, could not be used to distinguish between verdicts of murder and manslaughter. To the contrary, the fact could logically be used for that purpose.

Nor am I persuaded that his Honour erred in failing to give a Zoneff or Edwards-typedirection in relation to the applicant's alleged lies. His Honour forbade the jury from using the lies as a basis for distinguishing between verdicts of murder and manslaughter. There was therefore no risk of misunderstanding on the part of the jury about the significance of the alleged lies, this being the necessary trigger for a Zoneff direction. The lies were taken out of play as evidence that might assist in discriminating between verdicts of murder and manslaughter.

There is no reason to think that the trial judge's summation of the Crown case would have led the jury to forget or second-guess his Honour's direction about the lies. The direction forbidding use of the lies for the purpose of finding the applicant guilty of murder was emphatic in its terms. His Honour was not obliged to repeat it, even when he traversed the Crown case in the summing-up. Moreover, trial counsel did not seek any redirection. This provides added reason to think that the atmosphere of the trial was such that his Honour's traversal of the Crown case did not leave the jury with the impression that the lies could be used to discriminate between verdicts of murder and manslaughter.

The applicant has failed to show either an arguable case that his Honour erred in law, or that her conviction is a miscarriage of justice: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [72] (McHugh J). Accordingly, Rule 4 applies in relation to Grounds 1(a), 1(c) and 1(d) and I would refuse leave to raise these grounds.

Ground 1(b) His Honour erred in his comment as to the lack of alleged corroboration (and therefore her lack of credibility) as to the applicant's claimed state of mind during the time of the child's deteriorating health leading up to her death.

The trial judge's comment about the lack of independent evidence to support the applicant's claimed state of mind in the lead-up to Ebony's death is set out at [34] of this judgment.

The applicant's submissions on this ground of appeal are as follows. The applicant's state of mind in the period leading up to Ebony's death was the critical fact in issue. Accordingly, for the trial judge to lay emphasis on the lack of corroboration was, in effect, to cast the onus of proof upon her rather than the Crown. The applicant said that the trial judge's observation would have prompted the jury to ask, "Has she demonstrated that she should be believed?"

The Crown submitted that the trial judge's comment on the issue of corroboration was unobjectionable in the context of the trial. The Crown said that although various witnesses had given evidence that the applicant was experiencing personal difficulties in the period leading up to Ebony's death, none of these witnesses went so far as to suggest that those difficulties would have impaired the applicant's ability to notice a marked deterioration in Ebony's condition. Moreover, Professor Starmer had conceded in cross-examination that neither the combination nor quantity of the drugs that the applicant claimed to have taken would have diminished her ability to notice deterioration in Ebony's physical state. The Crown said that the observation as to corroboration was appropriate because, without it, the jury might have uncritically equated the applicant's difficult life circumstances and drug intake with a diminution in her ability to perceive obvious changes in Ebony's physical condition.

Conclusion on Ground 1(b)

In my view, the applicant's submissions on this ground ignore the entirety of the evidence led at trial. From first to last, the onus remained on the Crown to prove the elements of the offence beyond reasonable doubt. The trial judge gave the usual directions to this effect. However, the photographs of Ebony and the evidence of Drs Nadesan and O'Loughlin amounted to powerful evidence contradicting the applicant's assertions. The jury were entitled to ask themselves whether they should accept the applicant's evidence about her claimed state of mind because the independent evidence regarding Ebony's condition provided a firm basis on which to infer that the applicant must have appreciated Ebony's dire condition shortly before her death.

Against this background, it was not improper for the trial judge to mention the lack of corroboration. I agree with the Crown submission that the trial judge's comment about the want of corroboration was not inappropriate in light of the other evidence led at trial. That trial counsel raised no objection at the time also inclines me to the view that his Honour's comment did not give rise to a miscarriage of justice, bearing in mind the atmosphere of the trial.

For these reasons, I am of the view that the applicant should be refused leave to raise this ground of appeal.

Ground 2: His Honour failed to direct the jury that before they could convict the appellant upon (sic) murder they had to be satisfied the Crown had proved beyond reasonable doubt that the appellant was not so intoxicated as a result of prescribed drugs she was taking alone and/or in combination with other matters she said were affecting her state of mind as to be able to form the specific intent necessary for murder. In other words, to thereby realise that her child was probably going to die.

The applicant said that the significance of the evidence regarding the effect of the prescription drugs on her mental state was such that his Honour should have given a specific direction about the relevance of drug-induced intoxication, despite the omission by trial counsel to ask for any redirection on this point. Section 428C(1) of the Crimes Act relevantly provides: "Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent". Section 428C(1) applies to a charge of murder by reckless indifference: R v Grant [2002] NSWCCA 243 at [97]-[98] (Wood CJ at CL, Spigelman CJ and Kirby J agreeing).

The applicant submitted that a direction on drug-induced intoxication was necessary because her use of prescription and other drugs was one of the factors upon which she relied to explain her failure to perceive changes in Ebony's physical state. The applicant relied upon the following enunciation of principle by Gibbs J in Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88 at [112], quoted with approval by this Court in Bellchambers v R [2008] NSWCCA 235 at [33]:

"In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent."

The Crown accepted that even where the defence does not seek directions on intoxication, a trial judge must give such directions if the evidence raises the reasonable possibility that intoxication had an effect on the accused's mental state at the relevant time: R v Sullivan [2011] NSWCCA 270 at [35] (Blanch J, McClellan CJ at CL and Hislop J agreeing).

However, the Crown argued on the appeal that the evidence regarding intoxication did not justify a specific direction. To this end, the Crown pointed to various deficiencies in the evidence regarding intoxication. One such deficiency was the long period of time (weeks or months) over which the applicant failed to attend to Ebony's needs. It would have been difficult to argue that intoxication was an operative factor over the entire period in which the applicant might have formed the specific intent for murder. Another deficiency in the evidence was the concession by Professor Starmer that a person who took the drugs in the quantities reported by the applicant would have developed a tolerance to their effects. There was also evidence indicating that the applicant was capable of completing complex tasks in the period leading up to Ebony's death.

The Crown also observed that the applicant's case was never put to the jury on the basis of intoxication alone, perhaps because of the weaknesses in the evidence regarding intoxication. Rather, the case for the applicant was that a multiplicity of factors, including her use of drugs, had culminated in her inability to cope and resultant failure to notice the fatal deterioration of her child.

Finally, the Crown submitted that the absence of any application by trial counsel for redirection on the issue of intoxication could be explained by sound tactical considerations. The Crown said that it was more advantageous to the applicant's case to argue that the drugs, in combination with other factors, had impaired her ability to perceive Ebony's deterioration. This was because the evidence did not suggest that intoxication was a discrete factor that operated upon the applicant's mental state.

Conclusion on Ground 2

To my mind, the implications of the evidence regarding intoxication were fairly brought to the jury's attention by the trial judge's summation of the defence case. His Honour cogently explained the defence case to the jury. According to that case, it was a reasonable possibility that a combination of factors had led to the applicant's failure to perceive Ebony's deterioration in the relevant period. Drug-induced intoxication was one of these factors, but the defence never relied upon it in isolation from the others.

The Crown is correct to argue that the applicant's defence to murder was never one of drug-induced intoxication as such. It would have been artificial, and perhaps even misleading, for the trial judge to give directions about drug-induced intoxication as a discrete factor that was capable of operating upon her mental state. Having regard to the evidence of Professor Starmer, the evidence suggested, at its highest, that the intake of drugs in combination with other life stressors might have affected the applicant's mental state in some way. But the drugs could not be singled out as having, on their own, a sufficiently distortive effect on the applicant's perceptions. Neither Professor Starmer's evidence, nor that of any other witness, provided a foundation for that conclusion.

Even if the applicant's use of drugs provided a discrete basis for an argument that she was so intoxicated that there was a reasonable doubt about whether she had formed the mental state for murder, the jury would have needed to be satisfied that she was intoxicated to this degree for the whole of the period during which she failed to provide Ebony with the necessities of life. This is because the Crown needed only to prove that the applicant had the mental state for murder at some point during that period. Even a momentary realisation by the applicant that Ebony's death was probable would have been enough to establish the mental state for murder. Seen in this light, the evidence did not raise a reasonable possibility that drug-induced intoxication alone had prevented the applicant from forming the mental state for murder.

All of these factors explain why his Honour was not asked to give, and did not give, any directions that isolated and dealt with drug-induced intoxication separately from the other factors on which the applicant relied to raise a reasonable doubt about whether she had the mental state for murder. The evidence did not raise the reasonable possibility that drug-induced intoxication had operated as a discrete influence on the applicant's mental state at the material times. I would therefore refuse leave to raise this ground of appeal.

Sentence Ground: In all the circumstances the sentence imposed was too severe.

The applicant also seeks leave to raise one ground of appeal against sentence. It is necessary to summarise those parts of the remarks on sentence which are relevant to the appeal.

The trial judge found that the jury had convicted the applicant of murder on the basis of her reckless indifference to Ebony's life: R v BW & SW (No 3) [2009] NSWSC 1043 at [187], [121]. His Honour found that the applicant had considered not just the probability, but the "dead set certainty", that Ebony was going to die. He was of the view that it would have been no worse if the applicant had actually formed an intention to kill Ebony: BW & SW (No 3) at [187]. His Honour's reasoning on this point was as follows:

"Murder by reckless indifference might generally be regarded as less serious than murder with an intention to kill but this is not necessarily so: R v Ainsworth (1994) 76 A Crim R 127 at 139. I have already indicated that in the circumstances of this case there is no real distinction between culpability for murder by either of these states of mind. There was evidence from Dr Nadesan that immediately prior to death Ebony's body would have appeared the same as depicted in the post mortem photographs. SW agreed with a proposition put to her by the Crown Prosecutor that a person seeing Ebony in that state would realise that it was not just a probability but a "dead set certainty" that she was going to die. She would have appeared in a similar state for quite some time before she died. To my mind, for a person to have done nothing in those circumstances is so morally reprehensible that it could be no more serious if the person actually intended to kill the child."

The trial judge found that the applicant's case fell within the "worst case category": BW & SW (No 3) at [188]. He was of the view that the applicant's criminal offending required the imposition of a life sentence in accordance with s 61(1) of the Crimes (Sentencing Procedure) Act 1999: BW & SW (No 3) at [191]. His Honour was mindful that a sentence of life imprisonment carries with it no possibility for consideration of release on parole: BW & SW (No 3) at [189]. However, because of the "extreme gravity of the offence", he was "not satisfied that any of the subjective features, alone or in combination, are sufficient to displace the prima facie need for the maximum penalty": BW & SW (No 3) at [191].

Pre-trial evaluations of the applicant by Dr Olav Nielssen, a psychiatrist, and Ms Duffy, a psychologist, were relied upon at the sentencing hearing. Dr Nielssen assessed the applicant on the basis of her self-reported history. She told him that she was under the control of BW for many years, that she had lost the capacity to act on her own behalf, and that she had little say in the care of the children. She claimed that BW was "unpredictably violent" and had physically abused her on a number of occasions. She told Dr Nielssen that the Matraville home was in a squalid state because, no matter how much she cooked and cleaned, BW would quickly create more mess. The applicant also claimed that BW had forced her to participate in bondage and sadomasochistic sexual acts with paying clients in their home from 1992 to 2004. The applicant told Dr Nielssen about a number of health problems she had experienced throughout her life, including an eating disorder, asthma, irritable bowel syndrome, chronic lower back pain, self-harming behaviour, and anxiety attacks.

Dr Nielssen concluded that "it was not clear that [the applicant] met the accepted criteria for the diagnosis of any major psychiatric disorder". He was willing to concede, however, that the applicant suffered from a "personality disorder" or "a disabling level of pervasive and maladaptive personality traits". Dr Nielssen wrote in his report:

"From the history elicited, it did seem that [the applicant] had developed the learned helplessness of women in abusive relationships. She reported being closely controlled with the threat of violence over many years to the extent that she became completely isolated and had no ready means to leave the relationship, especially as she had the care of three children with various disabilities. Hence it is possible that [the applicant] would be able to raise a defence arising from "battered women's syndrome", which is not a psychiatric diagnosis but a set of circumstances that is recognised in law to arise in women who are subjected to chronic physical abuse to the extent that they are deprived of initiative and a capacity for free will. The combination of her own physical problems and her lack of initiative may have affected her capacity to appreciate the state of her child's health or attending to her needs."

Dr Nielssen qualified that last sentence in his oral evidence. He said that although the applicant's capacity to appreciate Ebony's physical circumstances was not greatly affected, she had probably become used to the child's poor health.

The applicant gave Ms Duffy an account of her life history which was largely consistent with the account she gave Dr Nielssen. Ms Duffy assessed the applicant on the basis of the self-reported history and a number of psychometric tests that she had the applicant undergo. Ms Duffy concluded:

"It is considered that [the applicant's] dissociation in response to her chronic trauma state arising from her abusive relationship may have blinded her literally (sic) to the plight of her emaciated daughter. Her perceptions may have been distorted to the extent that she believed that [Ebony] would 'come good' as she had done before. Thus it came as a real shock to [the applicant] that her daughter had starved to death literally in front of her eyes and that she had not realised it. Her multiple psychological problems including dissociation may have detached her sufficiently from reality that she did not recognise the extent of her daughter's starvation.

It is considered that [the applicant] has a number of severe psychological conditions although she is not mentally ill. She shows evidence of personality disorder and profound depression and anxiety as well as Post Traumatic Stress disorder. Her involvement in [a] psychologically damaging relationship has altered her perceptions and her perspective on a number of issues, and she will require considerable psychotherapy to come to terms with her role in the death of her daughter and recover from the abuse perpetrated on her over so many years."

The trial judge gave "little weight" to the evidence of Dr Nielssen and Ms Duffy: BW & SW (No 3) at [121]. After identifying a number of discrepancies between the accounts the applicant gave at trial and those she gave Dr Nielssen and Ms Duffy, as well as between their conclusions and the applicant's behaviour, his Honour said: "There is a very real question as to whether SW should be believed in respect of the history she gave to Dr Nielssen and Ms Duffy": BW & SW (No 3) at [118]. His Honour regarded the evidence of Dr Nielssen and Ms Duffy with scepticism for the added reason that they had evaluated the applicant before the trial, and therefore without the benefit of the jury's finding of guilt: BW & SW (No 3) at [118]. The trial judge was also concerned that Ms Duffy, a psychologist, had strayed into psychiatry in formulating her opinion: BW & SW (No 3) at [113]. The trial judge gave little or no weight to the applicant's account of her abusive relationship with BW, again because he had formed a negative view of her credit.

Nor did the trial judge accept the applicant's evidence about the level of her prescription drug use. He noted that the applicant had told Dr Nielssen that she did not abuse prescription drugs. In addition, although Professor Starmer gave evidence that heavy use of the drugs could impair a person's memory, Dr Nielssen reported that the applicant's "command of detail and her capacity to retrieve information such as dates was remarkable": BW & SW (No 3) at [120].

His Honour accepted that Ebony did not figure in family photographs taken after July 2006 because of her increasingly pitiful condition: BW & SW (No 3) at [159].

The applicant argued on the appeal that his Honour erred in finding that the applicant's case fell within the worst case category or otherwise warranted the imposition of a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act. In the alternative, the applicant submitted that his Honour erred in not exercising his residual discretion under s 21(1) of the Act to impose a determinate sentence.

The applicant sought to establish error in a number of ways. She argued that comparable cases such as R v Folbigg [2003] NSWSC 859 and R v Pfitzner [2009] NSWSC 1267 demonstrated that a sentence of life imprisonment was excessive in her case. The applicant also took issue with the trial judge's rejection of the absence of planning as a mitigating factor, as well as the finding that, in the circumstances of the case, it would have been no more serious an offence if she had actually intended to kill Ebony. The applicant complained that his Honour erred in rejecting the evidence of Dr Nielssen and Ms Duffy, the applicant's evidence about her addiction to prescription medication, and the contention that the applicant was not an "emotionally healthy person" in the period leading up to Ebony's death. The applicant submitted that it was an error to dismiss such evidence out of hand because, absent an intention on the part of the applicant to kill Ebony, there must have been some psychological or psychiatric reason why the applicant failed to care for her child in the relevant period.

The applicant also argued that the trial judge had attributed insufficient weight to the evidence of her general practitioner, Dr Garondy Novak, who noted in March 2007 that the applicant was in a lot of pain and having trouble coping. She was concerned that the applicant was taking greater than usual doses of prescription medication for her pain and panic attacks. Dr Novak formed the view that the applicant was depressed and referred her to a pain clinic for treatment and psychiatric assistance. The trial judge did not expressly mention Dr Novak's evidence in his judgment on sentence. He instead dealt with the issue of the applicant's depression in the following parenthetical way at [127]:

"A number of the medical witnesses called by the prosecution did, however, agree that SW appeared to be depressed. Invariably, however, when this was clarified in re-examination it was said that it was in the nature of her 'having the blues' rather than a matter of clinical depression. I am also not prepared to accept that her 'ability to cope' was impaired in any substantial way because of that aspect, either alone or in combination with any physical health issue."

The applicant challenged a number of factual findings made by the trial judge. The finding that the applicant deliberately excluded Ebony from the family photographs and kept her out of public view was said to be equivalent to a finding that the applicant intended to kill Ebony, whereas the trial judge sentenced her on the basis of reckless indifference. The applicant said that the finding could not in any event be sustained beyond reasonable doubt. This was because it implied that the applicant had deliberately exposed Ebony to chronic starvation from July 2006 through November 2007, though the evidence did not support an inference that the applicant had the mental state for murder over such a lengthy period. In support of this submission, the applicant pointed to the evidence of John Giavis, who was the last person other than the applicant and BW to see Ebony alive. Mr Giavis was a removalist engaged by the applicant and BW in August 2007 to move the family possessions from Matraville to Hawks Nest. He noted that Ebony was "obviously quite skinny" and looked about three years old. The applicant said it was significant that Mr Giavis' concerns about Ebony's wellbeing, if any, did not impel him to contact the authorities.

The applicant also challenged the trial judge's finding that the applicant had failed to do all that she could to attend to Ebony's medical, developmental and educational needs for the duration of her life: BW & SW (No 3) at [151]. This finding was said to be inconsistent with evidence that Ebony was a "chubby six-year-old" in April 2006, was vaccinated, and had undergone a hernia operation that calmed her somewhat. The applicant was also critical of the seeming acceptance by his Honour that she had said to BW, "we have to get rid of the body": BW & SW (No 3) at [58], [68].

The applicant submitted more generally on the issue of mens rea that his Honour should not have found that the applicant had the mental state for murder for more than a couple of days or weeks before Ebony's death: BW & SW (No 3) at [44], [156] and [159].

The respondent maintained that the sentence was not erroneous.

The Crown said that the applicant's complaints about the trial judge's factual findings were unfounded. According to the Crown, his Honour did not find beyond reasonable doubt that the applicant had suggested to BW that they get rid of the body. To the contrary, the trial judge made note of the applicant's denial that she had done so, and omitted any reference to the disposal of the body in his formal findings of fact: BW & SW (No 3) at [58], [148]-[171].

As to the finding that the applicant deliberately kept Ebony from public view and excluded her from family photographs, the Crown submitted that this finding was both open on the evidence and consistent with a mens rea standard of reckless indifference.

The Crown said that Mr Giavis' evidence did not undermine the trial judge's finding that the applicant exposed Ebony to chronic starvation over many months. The Crown submitted that it was entirely speculative to conclude that Ebony must have been in none too parlous a state because Mr Giavis was not spurred to urgent action upon seeing the child. To this end, the respondent observed that there was no evidence led at trial or in the sentencing proceedings as to whether Mr Giavis took steps to notify the authorities, or his reasons for not doing so.

On the issue of mens rea, the Crown submitted that it was open to the trial judge to find that the applicant must have realised that Ebony's death was probable for many months before her death. The Crown said that this finding was open on the evidence of Drs Nadesan and O'Loughlin and the post-mortem photographs.

The Crown said that his Honour was justified in finding that the applicant exhibited such a high degree of reckless indifference to human life that her mental state could not meaningfully be distinguished from an intention to kill. It was said that the horrendousness of the offence and the length of time over which the applicant abdicated her basic parental responsibilities meant that the absence of planning could not be regarded as a mitigating factor. The Crown submitted that the applicant's attention to some of Ebony's needs prior to April 2006 was not inconsistent with a finding that the applicant had neglected the great majority of Ebony's needs throughout her entire life.

As for evidence of Dr Nielssen and Ms Duffy, the Crown said that it was open for his Honour to give minimal weight to their views because of the unreliability of the applicant's self-reported history and the many inconsistencies between that history and the applicant's evidence at trial and on sentence.

The Crown said that it was not necessarily the case that the applicant's neglect of Ebony was attributable to some psychological or psychiatric deficit, and the trial judge was not required so to find. The Crown further argued that the finding that the applicant's use of prescription medication did not reduce her culpability was appropriate, as the evidence did not suggest that the drugs diminished her capacity to appreciate Ebony's condition or to take steps to redress it.

Finally, the Crown sought to distinguish the applicant's case from comparable cases such as Folbigg and Pfitzner by pointing to differences between the applicant's subjective circumstances and the subjective features of those offenders.

Conclusion on Sentence Ground

This Court is bound by the trial judge's findings of fact, unless they were not open on the evidence or an error in the sense referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 can be shown: Hopley v R [2008] NSWCCA 105 at [28].

I turn first to the submission that it was an error for his Honour to find that, in the circumstances of the offence, there was no appreciable difference in culpability between an intention to kill and reckless indifference to human life. The trial judge cited R v Ainsworth (1994) 76 A Crim R 127 as authority for the proposition that, "whilst each case has to be considered on its own facts, there is no prima facie presumption that murder resulting from reckless indifference is less culpable than murder involving one of the other categories of malice referred to in the statutory definition of murder" (at 139 (Gleeson CJ)). That statement of principle was accepted by Grove J in R v Holton [2004] NSWCCA 214, although his Honour was careful to draw out its implications. He accepted that there was no prima facie presumption that murder resulting from reckless indifference is less culpable than murder resulting from specific intention, but added that "so to say inheres recognition that murder by reckless indifference is not necessarily as culpable as other forms. Each case must be considered on its own facts" (at [59]).

The trial judge had careful regard to the facts of the applicant's case. He made a considered judgment that the applicant's awareness of Ebony's life-threatening condition over a period of many months, coupled with her complete failure to take steps to cure it, was morally indistinguishable from an intention to kill. The moral judgment inherent in that finding might be contested. A reasonable person might think that it is always more morally reprehensible to set out upon a deliberate course to kill a child than to consider but disregard the probability, or even the certainty, that a child's death is imminent. But equally so, a reasonable person might think as the trial judge did. Bearing in mind the case law on this subject, which rejects any prima facie presumption that intentional murder is worse than murder by recklessness, it cannot be said that his Honour erred in collapsing the distinction between the two states of mind.

There was no challenge to what Dr Nielssen said he actually observed in the interviews so far as the issue of emotional impairment was concerned. Nor was he challenged on his interpretation of what he said he saw as constituting evidence of emotional impairment. Dr Nielssen said that what he observed on both interviews with the applicant he had also observed in patients with psychiatric disorders in the course of his practice.

In analysing Dr Nielssen's evidence there is a further matter which should not be overlooked. The fact that Dr Nielssen said he observed what to him was consistent with emotional impairment is not to be conflated with a separate issue, namely, the circumstances in the applicant's life that may have caused her emotional impairment. The circumstances that caused it were not essential to Dr Nielssen's observations that she was exhibiting signs of personality disorder. As to causal factors, he referred to early childhood exposure to domestic violence as a matter that is correlated with the development of an abnormal capacity for emotional response as well as other influences including violence or the influence of a partner as other possible contributing factors. In summary, once Dr Nielssen stated that there were observable signs indicating the presence of an abnormal range of emotional expression, the precise cause or causes or contributing factors are of little consequence. The fact remains that no one suggested that Dr Nielssen was in error in saying what he said he had observed during the course of his interviews with the applicant and there was no suggestion made that Dr Nielssen had erred in ascribing diagnostic significance to the observations that he made.

In relation to the applicant's limited emotional expression noted at page 7 of the report (reproduced in [ REF _Ref355709851 \r \h 196] and [ REF _Ref355709861 \r \h 198] above), Dr Nielssen in oral evidence stated that the applicant was describing distressing topics "in a fairly bland way with little in the way of sadness or anger or other outward emotion, and it wasn't sort of the flattening of an emotional expression that you often see in people who are severely depressed, it was more a lack of emotional reaction" (T 6 August 2009, at 16.9-14).

He went on to say that he thought it was "highly abnormal" for the applicant not to burst into tears at some stage during her interview and that it was "quite unusual". As to possible causal factors he said:

"My interpretation of it was that either she had a personality with - a personality type like a lifelong temperament or personalitythat lacked emotional reaction, or else her restriction in emotional range was a consequence of longstanding abuse, that is, it was her defence against longstanding fear of physical assault or emotional abuse": (T 16.19-25) (emphasis added)

Dr Nielssen later in evidence-in-chief, was asked to explain how the limitation on the applicant's emotional responses emerged in her life:

"Q. Given the history that [the applicant] gave to you, how do you explain or interpret how that characteristic of [the applicant] emerged in her life? In other words, how did that shutting down or limitation in her emotional responses, how did that develop over a period of time?

A. Well again, I can only go on the history I have and it's supported to some extent by the history from Ms Duffy, which is actually a much more detailed history of her early life experiences, so when I interviewed [the applicant] she denied observing domestic violence in her family of origin, whereas it seems that that was an important influence. So the origins of it seemed to be in aspects of her upbringing. But then her experiences in adult life appear to have reinforced it and interfered with her normal emotional development to a mature state and that her emotional numbing, I thought, was probably due to the experience of being in a long term abusive relationship on a background of events in her own childhood and adolescence." (T 19.1-15). (emphasis added)

Apart from the history elicited by Ms Duffy as to domestic violence in her family of origin as a possible causative factor, there was other evidence that could be considered as corroborative of the history of a violent early life upbringing as recorded by Ms Duffy which does not appear to have been directly referred to during the sentencing hearing. In a record made by a social worker at South Western Sydney Area Health Service in 1997, whilst the applicant was an in-patient, the clinical records include an entry made on 8 September 1997 which included the following statement:

"history of domestic violence between [the applicant's] parents. Mother an alcoholic."

The note went on to state that the husband at the time of admission was supportive and he had identified a number of issues as set out in the clinical note at AB 1096.

In the remarks on sentence the sentencing judge observed:

"129 Another matter that Mr Stewart submitted that I should take into account was that [the applicant] "has not been an emotionally healthy person". He contended that this could be traced back to matters such as the domestic violence she witnessed as a child and her commencing her relationship with [her husband] when she was 17 and he was 29. A difficulty with that is that it depends upon a psychiatric or psychological assessment of [the applicant] and those which I have are flawed because they are based upon a history that I cannot be satisfied is reliable with regard to crucial matters."

It is important here to observe that the remarks on sentence do not suggest that the sentencing judge had been taken to the clinical record of 8 September 1997 to which reference has been made above at [ REF _Ref350875607 \r \h 209] in which a history of the applicant's exposure to domestic violence (later described in graphic terms by Ms Duffy) was recorded. It will be recalled that Dr Nielssen had identified such early life experiences as a possible causative factor giving rise to an abnormality in emotional development and as providing, at least to some extent, a possible explanation for what he himself detected as being consistent with an impairment in the applicant's capacity for empathy which he stated is associated with severe personality disorder.

Although the history recorded by the social worker in 1997 was a history given by the applicant herself, nonetheless it was a history given in a very different setting to the one provided to Ms Duffy. It concerned the applicant herself, not her children, in the course of an assessment of a medical condition which had apparently led to her admission for treatment and possible referral for counselling. In other words, it was not a history given in a context in which she was being investigated in relation to the care of her children.

It appears that Dr Nielssen had apparently been unaware of the corroborative evidence of the applicant's childhood history recorded in the clinical notes made in 1997 (para [ REF _Ref350875607 \r \h 209] above). The fact that he did not have that information and yet made observations as to early life experiences, if anything, establishes his perspicacity in referring to early life experiences as a factor known to be linked with such lack of emotional responsiveness as he found on both examinations.

It is true, as the sentencing judge observed, that the history as to the relationship between the applicant and her husband depended upon her own history and that was found to be unreliable. However, the sentencing judge's observation in that respect did not, as earlier noted, undermine Dr Nielssen's evidence as to observable abnormalities which he stated had diagnostic significance. Nor, on Dr Nielssen's evidence, did it necessarily negate as a possible causal factor the applicant's early childhood experience in what he referred to as "emotional numbing".

Dr Nielssen saw the lack of emotional reaction in the applicant as either being due to a lifelong temperament or personality issue or as being due to physical abuse and/or emotional abuse in adult life or both.

As to the significance of the observations made by him, he said:

"... a lack of emotional responsiveness and that could translate to her lack of capacity for empathy or ability to recognise another person's feelings." (T 18.40-45).

He was asked:

Q. "Would you expect that that characteristic would impact on a person's capacity to respond to and empathise with persons close to her?

A. Yes.

Q. Including children?

A. Yes." (T 18.45-50)

Dr Nielssen elaborated upon the significance of his assessment of the applicant and distinguished two aspects, namely, her capacity to appreciate the child's needs and her capacity to attend to the child's needs. He gave the following evidence:

Q. At the end of your report you stated that the combination of her own physical problems and her lack of initiative may have affected her capacity to appreciate the state of her child's health or attending to her needs. When you say, may have affected her capacity, are you talking about a matter of degree?

A. Yes.

Q. So is it your opinion that to some extent her capacity may have been affected?

A. Yes, two parts; to appreciate how unwell her child was, and her child's circumstances, which were pretty dire, but also her capacity to do something about it, are likely to have been affected.

Q. How does being in that kind of relationship and plus having the particular physical problems that she had, and also her particular personality as it developed, how does that operate to affect her capacity to appreciate?

A. Well, I don't think her capacity to appreciate the physical circumstances were greatly affected, other than to say that she probably became habituated, became used to the squalor and to the child's poor health, but it was more in her capacity to attend to the child's needs, which according to the history I obtained was very much limited by her husband's control of the situation, both with money, with her personal freedom, and also her physical limitations in being able to keep the house clean and to tend to the child.

Q. Given your particular opinions as you've expressed them, are you able to say that her particular problems and her particular lack of initiative as you based on her history, that that would impact on her to some degree fail to appreciate the condition of her child, who for some period of time leading up to her death was suffering from gross chronic malnutrition?

A. Yes. There must have been, and again, it's hard to - hard for me to link the person I interviewed with the facts of the case, but there must have been quite a disruption of capacity for empathy for the child, over and above any limitation on her freedom of movement and freedom of action.

Q. You said it was hard to link the person that you spoke to with the facts of the case. What did you mean by that?

A. Well, again, she seemed quite intelligent, was well groomed, seemed to be a competent sort of person, and also her reactions when these details were put to her, because that's how the interviews unfolded. I read from the documents and asked her to respond, and it was difficult to reconcile the lack of response and also her answers to the objective circumstances. (T 21.3022.19)

Whilst the secondlast answer does not refer to the applicant's lack of emotional responsiveness in terms of her early life experiences, but rather refers to her husband's alleged control, it is not a retraction of (i) his reported findings on his clinical observations referred to in [ REF _Ref355709851 \r \h 196] and [ REF _Ref356818396 \r \h 197] above; (ii) the link or association to which he earlier referred between relevant early life experiences and the applicant's observed lack of emotional response or capacity for empathy.

In cross-examination the Crown took up the issue of her lack of emotion with Dr Nielssen (at T 26-27). Dr Nielssen was asked by the Crown Prosecutor:

"Q. What I'm saying to you is what you observed as to lack of emotion is capable of more than one explanation?

A. Yes.

Q. Your assessment of it as reported, is in the light of the history she was giving you?

A. Yes.

Q. You use the expression in relation to an answer from Mr Stewart of a lack of empathy?

A. Yes.

Q. Well a lack of empathy in relation to what had happened to the child would result in no emotion to that, wouldn't it?

A. Yes there was a lack - the apparent lack of emotion whilst describing the child's condition suggested perhaps a lack of empathy there. A lack of capacity to recognise the other person's feelings.

Q. Nothing that she described to you would in any way in your opinion, affect her eyesight would it?

A. I'm sorry?

Q. None of the history she gave you, none of the emotions or the effects that you noticed would in any way reflect to indicate there was anything wrong with her eyesight?

A. No."

The questioning then moved on to other topics. It is noted that the above line of questioning by the Crown Prosecutor commenced with an examination of Dr Nielssen's evidence on the issue of the applicant's capacity to empathise but without exploring or challenging Dr Nielssen's evidence any further on that issue the cross-examination deviated in the last two questions to the issue of the applicant's ability to visually see the child's condition. In other words, the consequences or significance of a lack of the applicant's capacity in terms of her emotional capacity to respond as referred to by Dr Nielssen in both his report and oral evidence was not analysed in cross-examination. Dr Nielssen addressed as a quite separate issue the applicant's ability to physically see the child's condition. After he was shown Exhibit L, a photograph of the child taken in December 2004, he agreed that it would defy commonsense and logic that anyone would not notice a difference in a child's condition which at an earlier time had been described as being a healthy chubby six year old and what was subsequently described in the autopsy report and by Dr O'Loughlin.

Accordingly, whilst the above segment of the cross-examination commenced with the issue addressed by Dr Nielssen as to the applicant's lack of emotion, it deviated from that issue to the issue of the capacity of a person to physically see and identify the deteriorating physical condition of the child rather than to the applicant's capacity to respond to what she was seeing. Dr Nielssen's evidence, on more than one occasion, had drawn the distinction between her capacity to physically see the condition of the child, and her capacity to respond to the needs of the child.

It is of some significance to observe that whilst Dr Nielssen dealt with matters of history in his report under the specific subheadings referred to in para [ REF _Ref355965119 \r \h 195] above, it was his clinical or objective observations on the applicant's lack of emotional response on both examinations, that formed the basis for his opinion concerning her emotional state, in particular her lack of capacity for empathy. Plainly in both his report and in his oral evidence, Dr Nielssen stated that this feature was present on both examinations and that it conformed with what he identified as "features of personality disorder", described as the applicant's "abnormal emotional responses". Its relevance to the issue of the applicant's moral culpability was that in Dr Nielssen's opinion it wasconsistent with "impairment in the capacity for empathy associated with severe personality disorder": (p 8). It has not been overlooked that Dr Nielssen identified the fact of abnormal emotional response as but one of other stated features that together could support a diagnosis of "personality disorder".

It was not put or suggested to Dr Nielssen in cross-examination, a highly experienced and respected forensic psychiatrist, that the abnormal emotional response he detected in the applicant was something that could have been feigned by her. Nor, as earlier noted, was it suggested to Dr Nielssen that his observations were flawed or that his mental state observations upon which he reported and the significance he attached to them were without a proper basis or support.

Dr Nielssen's clinical observations and his diagnostic assessment as to the existence of an impairment in the applicant's capacity for empathy could not, in our opinion, be given no weight, particularly in circumstances in which the validity of his observations and conclusions were not the subject of direct challenge.

Whilst, with respect, the sentencing judge's conclusions as to the unreliability of the applicant's history on the issue of physical abuse and domination by her husband were certainly open to him, that did not, for the reasons we have identified, in our opinion, detract from or dispose of Dr Nielssen's other observations and conclusions which were not based solely upon history found to be unreliable. The finding as to the applicant's unreliability as a historian on matters concerning her relationship with her husband in other words could not remove the identified basis for Dr Nielssen's opinion, based as it was upon his clinical findings on the examinations of the applicant.

The only question raised upon a matter arising from Dr Nielssen's evidence on this aspect of the matter was a question put by the sentencing judge to him at T 30:

"HIS HONOUR:

Q. I'll take you to page 8 of your report. The first sentence on the page you refer to 'doubts about whether the diagnosis of personality order is sufficiently reliable to be used as evidence in court'. Can you explain that please?

A. Yes, it's, I mean there's some debate as to where personality disorder sits within the psychiatric diagnostic system and one of the studies that sticks in my mind is of people who have been diagnosed with personality disorder being assessed 6 months later and it's supposed to be a life long disorder, but only 50 per cent of them were given that diagnosis, and I would say that level of diagnostic reliability is not high enough. Perhaps the other qualification I would say that I'd be cautious about making such a diagnosis without quite a lot of corroborative history of the effect of the maladaptive traits over the course of life.

Q. So you'd want to look behind the history given by the person?

A. Yes."

There are three observations to be made arising from this evidence. Dr Nielssen made specific findings consistent with the presence of a personality trait or abnormality (a lack of emotional responsiveness) which, in his opinion, which, together with other matters that he identified, could go towards supporting a diagnosis of personality disorder although he did not suggest a definitive diagnosis of that kind in this case. Secondly, as to the significance of his findings, he said that his observations of the applicant suggested that there was a lack of empathy - a lack of capacity to recognise another person's feelings: (T 26.40-45). Thirdly, the association of "emotional numbing" was considered by him to be consistent with an exposure to domestic violence early in life. As stated above, there was evidence to that effect in this case.

In the absence of any reason to the contrary, Dr Nielssen's opinion evidence was cogent evidence that went directly to the question of the objective culpability of the applicant and was evidence that had to be taken into account.

In assessing her moral culpability, the effect of the evidence was, in our opinion, to distinguish the applicant from cases in the worst category such as the killer who acts with cold deliberation, with full capacity and who is prepared to commit a felonious act from motives such as greed or other self-interest.

In the light of authority we do not consider that the offence can be regarded as falling within the worst category of cases nor that the level of culpability is so extreme that the community interest in the four statutory indicia can only be met through the imposition of a life sentence. Not only does it not fall within the sort of cases referred to by Wood CJ at CL in Merritt at [66], the case is so exceptional that it is doubtful that personal or general deterrence is of such significance as requiring the sentence imposed. Hulme J accepted, as we do, that protection of the community was not relevant.

The result is that whilst retribution and punishment were of paramount significance, one of the statutory indicia was entirely lacking (community protection) and the other (specific deterrence) was of minimal significance.

In addition, the following matters are relevant either as tempering the objective criminality or as bearing on the residual discretion under s 21(1):

(a) The applicant did not deliberately set out upon a long term plan to kill the child;

(b) The applicant had no prior convictions nor any prior history of violence towards the other children;

(c) The applicant accepted that she had a level of criminal responsibility for the death of the child and accepted that the jury could return a verdict of guilty of manslaughter.

(d) Both the applicant and the co-offender abused prescription drugs including Valium and Panadeine Forte although the sentencing judge found that the applicant's use was not as great as she made out.

(e) The psychometric testing carried out by Ms Duffy (as the sentencing judge said) could not be discounted although there were some difficulties associated with it, not the least of which was that some of it was dependent upon the applicant's own account which his Honour did not entirely accept. However, that testing demonstrated elevated scores on a number of scales including Borderline Personality, Depression, Post Traumatic Stress Disorder, Anxiety, Thought Disorder and Dissociation.

In our opinion it cannot be said that the present case is within the worst case category nor that the level of culpability was so extreme that the community interest can only be met by the imposition of a life sentence. The evidence of Dr Nielssen to which we have referred, in our opinion, provides an additional or separate basis for that conclusion.

In our opinion the following orders should be made with respect to Ground 3:

(1) Grant leave to appeal.

(2) Allow the appeal.

(3) Quash the sentence imposed by Hulme J.

(4) In lieu, sentence the appellant to a non-parole period of 30 years commencing 17 November 2007 and expiring 16 November 2037 with an additional term of 10 years expiring 16 November 2047.

**********

Decision last updated: 19 June 2013

Medium Neutral Citation:	SW v R [2013] NSWCCA 103
Hearing dates:	30 November 2012
Decision date:	07 June 2013
Before:	McClellan JA at [1] Hall J at [138] Davies J at [138]
Decision:	1. Leave to appeal against conviction refused. 2. Leave to appeal against the sentence granted. 3. By majority: sentence imposed by Hulme J. is quashed and in lieu, sentence the appellant to a non-parole period of 30 years commencing 17 November 2007 and expiring 16 November 2037 with an additional term of 10 years expiring 16 November 2047.
Catchwords:	CRIMINAL LAW - appeal - Conviction appeal - murder of 7 year old daughter by mother - whether trial judge erred in directions on accused's alleged lies -corroboration evidence relevant to an accused's mental state - directions on consciousness of guilt evidence - directions in relation to the burden in proving intention in circumstances involving intoxication and drug use SENTENCE APPEAL - manifest excess - life imprisonment - consideration and application of s 61Crimes (Sentencing Procedure) Act 1999.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Rules
Cases Cited:	Bellchambers v R [2008] NSWCCA 235 BW v R [2011] NSWCCA 176 DJF v R [2011] NSWCCA 6 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Hopley v R [2008] NSWCCA 105 House v The King [1936] HCA 40; (1936) 55 CLR 499 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 R v Ainsworth (1994) 76 A Crim R 127 R v Alexander [1999] NSWSC 413 R v BW & SW (No 3) [2009] NSWSC 1043 R v Cheatham [2001] NSWSC 580 R v Cheatham [2002] NSWCCA 360 R v Cikos [2001] NSWSC 35, R v De Gruchy [2000] NSWCCA 51; (2000) 110 A Crim R 271 R v Folbigg [2003] NSWSC 53 R v Folbigg [2003] NSWSC 859 R v Fraser [2004] NSWSC 53 R v Fraser [2005] NSWCCA 77 R v Garforth (Unreported, Court of Criminal Appeal, 31 March 1994) R v Gorman and Armstrong (Unreported, NSWSC, Badgery-Parker J, 25 August 1995) R v Grant [2002] NSWCCA 243 R v Holton [2004] NSWCCA 214 R v Hughes and Ashfield (Unreported, NSWSC, Badgery-Parker J, 16 December 1994) R v Israil [2002] NSWCCA 25 R v Jalaty [2006] NSWSC675 R v Jang [1999] NSWSC 1153 R v Kalajzich (1997) 94 A Crim R 41 R v Lane [2011] NSWSC 289 R v Mehta [2009] NSWSC 814 R v Merritt [2002] NSWSC 1159 R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 R v Park (Unreported, NSWSC, Sperling J, 3 August 2000) R v Park [2003] NSWCCA 142 R v Petroff (Unreported, 12 November 1999 NSWSC) R v Pfitzner [2009] NSWSC 1267 R v Pfitzner [2010] NSWCCA 314 R v PJS[2009] NSWSC 153 R v RHB [2007] NSWSC 1466 R v Sullivan [2011] NSWCCA 270 R v Tripodina (1988) 35 A Crim R 183 R v Valera [2002] NSWCCA 50 R v Velevski (Unreported, NSWSC, Dunford J, 26 September 1997) R v Walsh [2009] NSWSC 764 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409 Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
Category:	Principal judgment
Parties:	SW (Applicant) Crown
Representation:	Counsel: D Dalton SC (Applicant) P Ingram SC (Crown) Solicitors: William O'Brien & Ross Hudson Solicitors (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2008/15683
Publication restriction:	Non-publication of any information that would identify the deceased child or her siblings
Decision under appeal	Citation: NSWSC 1043 Date of Decision: 2009-10-02 00:00:00 Before: R A Hulme J