Ta-Vuong v The Queen
[2015] VSCA 238
•9 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| Redacted |
S APCR 2014 0271
| PAUL TA-VUONG | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | OSBORN and PRIEST JJA and CROUCHER AJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 18 August 2015 | |
| DATE OF JUDGMENT: | 9 September 2015 | |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 238 | 1st Revision, 10 September 2015, page 30 para [107] |
| JUDGMENT APPEALED FROM: | R v Ta-Vuong [2014] VSC 574 (Emerton J) (12 September 2014 (date of conviction), 13 November 2014 (date of sentence)) | |
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[Redacted version]
CRIMINAL LAW – Murder – Application for leave to appeal against conviction – Single ground of ‘unsafe or unsatisfactory verdict’ – Whether verdict open on the evidence – Whether jury must have had a reasonable doubt – Relationship evidence – Differing accounts of events from accused – Expert medical evidence – Conviction open on the whole of the evidence – Application dismissed.
EVIDENCE – Reliability – Evidence of confession while in custody – Reliability of evidence of unreliable witnesses – Evidence capable of rational use by a jury properly instructed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Holt QC | Martine Marich & Associates Pty Ltd |
| For the Respondent | Mr A J Grant | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
OSBORN JA:
The applicant, Paul Ta-Vuong, seeks leave to appeal against his conviction for the murder of a 12 month old infant, Silas Leithhead.
Silas died on 15 May 2013 as a result of severe brain injuries sustained during a period of approximately 30 minutes while he was in the care of the applicant.
Both Silas’s mother and the applicant were addicted to heroin. On the morning of Wednesday 15 May 2013, Silas’s mother left Silas with the applicant at her flat; first when she went to the supermarket, and again while she went out to purchase heroin and obtain a Unisom tablet to use with the heroin.
On her return from the second trip out, the applicant put Silas to bed. Silas was discovered dead some four to five hours later.
Post-mortem examination showed that Silas had suffered major fractures to the skull, fatal brain injuries, liver damage, damage to the anterior of the ribs, and extensive bruising to the torso and head.
The Crown case was that the applicant deliberately threw or dropped Silas onto the floor causing the brain injuries which resulted in death.
The defence case was that the death was accidental. The applicant told the first police officer that he spoke to at the scene of the death on 15 May 2013 that he had slipped or tripped over a bathmat when carrying Silas and that, as a result, Silas’s head had hit the tile floor of the bathroom with a thump. He re-enacted the incident in a way that raised the possibility that he had fallen on Silas.
It was not contested at trial that the applicant’s actions had caused Silas’s death. What was put in issue was whether the applicant had acted deliberately in causing the injuries which resulted in death.
The fundamental question for the jury was whether the Crown could exclude accidental death beyond reasonable doubt.
The applicant now submits that the jury’s verdict was unreasonable and cannot be supported by the evidence. More particularly, as the written outline of submissions filed on his behalf puts it:
37.The Applicant’s account of whether he fell on top of the deceased contained inconsistencies. However, notwithstanding those inconsistencies the Crown could not exclude the proposition that the Applicant fell on top of the deceased as part of the relevant incident.
38.It follows that the only question is whether the Crown was able to exclude beyond reasonable doubt the possibility that death may have been caused by the Applicant dropping the deceased and then falling on top of him.[1]
[1]Emphasis added; citations omitted.
The issue is formulated this way because a complex fall of the type identified would explain the injuries to the skull and consequent brain injury suffered by Silas.
Principles
The relevant principles governing this Court’s jurisdiction on appeal were stated by the High Court in M v The Queen.[2] The Court must examine the evidence and ask itself whether it was open to the jury to be satisfied of guilt beyond reasonable doubt or whether the jury must have entertained a reasonable doubt as to an appellant’s guilt.
[2](1994) 181 CLR 487.
The principles were summarised by Maxwell P in R v Klamo:[3]
[3](2008) 18 VR 644, 653–4 [38]–[40] (citations in original).
[38]The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:[4]
[4]M v The Queen (1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451–2 (Gaudron, McHugh and Gummow JJ); Weiss v The Queen (2005) 224 CLR 300, 316 [41]; R v Tiburcy [2007] VSCA 124 [5] (Nettle JA).
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3.In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
[39]A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion. In Libke v The Queen,[5] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the ‘unsafe and unsatisfactory’ ground:
[5](2007) 230 CLR 559, 596–7 [113].
… But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[6] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[7]
[6]Citing M v The Queen at 492–3 (Mason CJ, Deane, Dawson and Toohey JJ).
[7]See also R v Tiburcy at [17] (Vincent JA) (emphasis in original).
[40] In other words, the question posed in M v The Queen,[8] namely:
[8]At 493 (Mason CJ, Deane, Dawson and Toohey JJ).
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?
requires the court of criminal appeal to decide:
… whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’[9] or whether, instead, the ‘path to a conviction was open’.[10]
[9]R v Shah [2007] SASC 68 [4] (Doyle CJ).
[10]Morabito v R [2007] NSWCCA 126 [34] (Mason P).
The evidence
The evidence covered the following areas:
(a) evidence of the relationship between the applicant and Silas and his mother;
(b) evidence of the limited window of time in which both the fatal injury and other injuries were inflicted;
(c) evidence of the applicant’s statements to police officers on 15 and 30 May 2013;
(d) evidence of the injuries identified on post-mortem examination and their probable and possible causes; and
(e) evidence of witnesses A and B that the applicant confessed to them that he had deliberately assaulted Silas by dropping him.
Relationship evidence
Silas was born on 8 May 2012. He was the son of the applicant’s girlfriend, Kate Leithhead. The applicant and Ms Leithhead had met when undergoing drug rehabilitation at Odyssey House. After leaving Odyssey House, the applicant lived with his parents in Burwood, while Ms Leithhead and Silas moved to live in a flat in Richmond.
The relationship between the applicant and Ms Leithhead was good during the early stages of their time seeing each other in Richmond. There was evidence from third parties and photographs and videos that described and depicted the applicant interacting with Silas in a positive way.
However, within two to three weeks after leaving Odyssey House, Ms Leithhead started using heroin again and shortly thereafter both the applicant and Ms Leithhead were injecting heroin together daily. The drug use affected their relationship adversely. Ms Leithhead gave evidence that the applicant’s behaviour changed a lot. They didn’t talk much. When they did ‘it was about when he was getting paid and how much money they were going to have left after they purchased heroin.’
The applicant became angry with Ms Leithhead as he was paying for all of the heroin. Sometimes there was tension between them over the sharing of drugs. In an SMS sent to Ms Leithhead on 4 March 2013, the applicant indicated that he was unhappy that they had no money for food the previous night and said ‘just so we can feel like shit the next day. I hate it — it makes me feel like a crumb’.
The applicant told police that he had used heroin on 14 May 2013 but had not used on 15 May 2013 before Ms Leithhead purchased drugs and Silas had been placed into his cot. The Crown submits that it may be inferred that the applicant was desperate to use the drug by the time Ms Leithhead returned to the unit.
On the day of his death, Silas was unwell. He was ‘clingy’ and ‘unhappy’. He had not been sleeping through the night in the three to four weeks before his death and was sick with gastroenteritis in the last days of his life.
Ms Leithhead gave evidence that in the four weeks before the death of Silas she had to tell the applicant a couple of times ‘don’t be so rough with him’.
On Monday 13 May 2013, Ms Leithhead took Silas to childcare but he was unwell when she picked him up. On Tuesday afternoon, she took him to the local health care centre and he was examined by a student doctor, Mr James Smith, who noticed two bruises on Silas’s right temple and two or three more bruises on Silas’s right chest above his nipple line. There were no other marks on Silas’s chest or abdomen and no signs of any internal injuries to his abdomen. He was diagnosed as suffering from gastroenteritis. This diagnosis was confirmed by a supervising general practitioner, Dr Richard Isaac.
Ms Leithhead gave Silas a bath on Tuesday evening and again on Wednesday morning. No further visible bruising beyond that present when he was examined by Mr Smith and Dr Isaac was observed, save for one bruise on the lower abdomen observed by his mother.
The applicant stayed at Ms Leithhead’s flat that night. On Wednesday morning, Ms Leithhead kept Silas at home. She left him in the care of the applicant while she went to the supermarket. She returned, then went to visit her dealer to obtain heroin, and a Unisom tablet to mix with the heroin. Whilst she was absent from the flat for these purposes, Silas suffered serious injuries.
When Ms Leithhead returned to the flat, she went into her bedroom to prepare the heroin and the applicant placed Silas into his cot. In retrospect, it is clear that Silas was already dead or dying from the injuries he had suffered. Ms Leithhead and the applicant injected themselves with heroin and did not go into Silas’s room until about 5:00 pm that night. Ms Leithhead found him wrapped in a blanket in the centre of the cot. Silas was dead.
Emergency services personnel and police were called and attended the flat. They observed bruising to Silas’s torso and his head. They spoke with the applicant about the cause of this bruising.
The injuries to Silas before he was left with the applicant
The evidence of the student doctor, the supervising general practitioner and Ms Leithhead established that prior to being left with the applicant Silas had gastroenteritis and some minor bruising.
Initial statements at the scene
When emergency services personnel attended the flat, a paramedic, Tessa Anderson, uncovered Silas at approximately 4:54 pm and observed bruising. She asked the applicant about marks on Silas’s chest. The applicant told her that they were the result of him ‘playing airplanes’ with Silas. He moved his arms to mimic throwing Silas in the air and catching him.
Senior Constable Anthony Gaffney attended at 5:36 pm. He asked the applicant to take him through what had happened. The applicant responded:
Yeah, I put him to bed, he was not in pain or anything. When I went back to see he was not breathing. He normally sleeps like 50 minutes, but he didn’t make any noise for about two hours before Kate checked on him and we called the ambulance.
When asked if the applicant found Silas on his back or his belly, the applicant responded:
On his back. Before I got him to bed I bent over to pick up a towel, I was holding him and tripped over towel [sic] and fell to ground [sic]. He hit his head on the ground.
The applicant was then cautioned. When asked how Silas was when the applicant put him to bed, the applicant said Silas was OK ‘he was not crying or anything’. The applicant further said that Silas had hit his head on the bathroom floor.
Senior Constable Gaffney observed bruising on Silas and took photographs of that bruising. He subsequently asked the applicant to tell him more about what had happened to Silas. The applicant said:
Yeah, I bent over to pick up a baby towel that was on the ground and I had him in my left hand and fell to ground [sic]. He hit his head on the tiles and the carpet. It was just before I put him to bed.
The tiles were actually linoleum covering concrete in the bathroom.
When asked how Silas got the marks on his chest, the applicant replied ‘we play airplane and I think he gets marks when I catch him. He also comes home from day care and has some bruising on him.’ After questioning the applicant about his heroin consumption, Senior Constable Gaffney asked the applicant to re-enact how Silas was dropped. The applicant picked up a towel and put it in his left hand and said that this would represent Silas for the re-enactment. He then re-enacted the fall walking forward and said that he tripped on a bathroom mat that was on the ground. At the trial, Senior Constable Gaffney left the witness box and demonstrated the re-enactment for the jury. He walked one or two paces forward and then moved forward and down so that his right knee bent. As he went forward, he started to crouch down with his left foot placed on the ground forward of his body. He continued to hold the towel in his left hand. He moved forward until his right knee touched the floor.
When the applicant completed the demonstration at the scene he finished directly in the doorway of the bathroom ‘half way through give or take’. His right hand came into contact with the floor in front of him outside the doorway.
In cross-examination, Senior Constable Gaffney agreed that he summarised the re-enactment in his police statement as follows:
Paul stood up and imitated for me how he picked up Silas and dropped him on the ground.
Senior Constable Gaffney agreed that the applicant appeared to land where the baby would have been. He agreed that this is what he had written in his statement and that he wrote it because it was true and correct. He also agreed that the way the applicant re-enacted the fall was ‘like he fell directly on top of Silas’.
It follows that Senior Constable Gaffney’s impression of the re-enactment directly raised the possibility that the applicant fell on Silas.
On the other hand, in re-examination, Senior Constable Gaffney said that the applicant did not lose his footing during the re-enactment and:
I don’t believe he showed me the full extent of what the fall may have been. I was saying that he could have possibly, like, the full fall, he didn’t fall over in a heap or anything like that on the ground, he fell and it was like, as if he would have fallen directly on top of him whilst he hunched over the towel in his left hand …
He confirmed that the applicant did not say anything like he fell directly on top of Silas. It was the police officer’s opinion of how the fall would have concluded that it was ‘like he fell directly on top of Silas’.
In summary:
(f) the applicant did not tell Senior Constable Gaffney that he fell on Silas; and
(g) the applicant did not in fact demonstrate falling onto the ground or onto Silas; but
(h) conversely, the re-enactment was sufficient to give Senior Constable Gaffney the impression that the applicant may have fallen on Silas.
Detective Senior Constable Duane Hagger also attended the flat with other detectives at about 6:20 pm. He had a conversation with the applicant on the balcony of the flat. The applicant told him that Silas had hit the ground hard. The applicant had slipped with Silas outside the bathroom and Silas had hit the left side of his head. The applicant could not be sure if Silas’s head had hit the carpet or tiles.
Detective Senior Constable Hagger subsequently conducted a recorded interview with the applicant commencing at 10:20 pm on 15 May 2013. The applicant stated that:
(i) at about 12:30 pm, while Ms Leithhead was away from the unit, he took Silas to the bathroom to wipe his face with a cloth;
(j) while he was carrying Silas out of the bathroom, he tripped on a bathmat losing his balance, causing him to stumble forward and have an insecure grip on Silas. Silas fell and struck his left ear on the carpet outside the bathroom. At a later point in the interview, the applicant clarified what had occurred and stated that he had lost his balance but that he had not hit the ground and he was ‘fortunate enough’ to maintain his balance;
(k) whether or not the impact of Silas’s head was with carpet or tile given the height from which he fell and the momentum of the slip it might have been ‘quite forceful’.
(l) Silas cried after he hit his head but remained alert and conscious, he did not look dazed;
(m) after the incident, the applicant sat down and held Silas and he appeared to settle quickly;
(n) after the applicant had cuddled Silas for about 15 minutes while he fell asleep, the applicant placed Silas in bed in his cot;
(o) Silas got bumps and bruises, and the bruises on his torso may have been caused when he lifted him too hard. He recalled that on those occasions Ms Leithhead told him to be more gentle;
(p) no one other than himself and Ms Leithhead had access to Silas after the time when he was brought home from the North Richmond Child Health Care Centre on 14 May 2013.
The record of interview in effect culminated in a series of answers which were combined with demonstrative actions:
Q725 … can you describe to me sort of how it happened? I’m a little bit confused about whether you fell as well …
AWell, I, I fell, I fell as well.
Q726 So did you fall on top of Silas or did he fall out of your arms? Can you describe demonstrate ...
ASo this is …
Q727 Silas.
AThis is Silas …
Q728 Yep.
AHe was in, this is his legs.
Q729 Yeah …
AWhen I slipped like this, I’ve actually… my back.
Q730 Yep.
ASo his legs would have been dangling like that.
Q731 Yeah. And …
AI would have, I would have thought like that cause, like, I didn’t hit the ground, I didn’t hit the ground.
Q732 Yeah.
ABut I had overbalanced enough for him to slip … this is my, on his lower back.
Q733 Yep.
A… his bum is enough for him to, does that make sense?
Q734 Yep.
ASo it would’ve been like a, like that, and then a quick lift up. That, that’s, that’s, that’s the kind of fall it was.
Q735 Did you receive any injuries …
ANo.
Q736 And Silas’s head did make contact with the ground?
AYes, ‘cause the door, the door swings like that.
Q737 Mm.
AI was fortunate enough to still maintain my balance … what do you call it, the …
Q738 Door frame?
AThe door frame.
Q739 Mm.
ABut by that time, Silas had already, like, his legs …
In my view, the jury were entitled to conclude that, when interviewed only hours after the death of Silas, the applicant positively asserted that he did not fall onto the ground on top of Silas but that Silas fell out of his arms for the following reasons.
·The sequential responses to the enquiry ‘did you fall on top of Silas or did he fall out of your arms?’ make this clear.
·The repeated assertion that ‘I didn’t hit the ground’, coupled with the statement ‘but I had overbalanced enough for him to slip’, are directly inconsistent with the scenario of the applicant falling on top of Silas.
·The statement that ‘I was fortunate enough to still maintain my balance’ is also directly inconsistent with a fall on top of Silas.
·The ‘quick lift up’ manoeuvre demonstrated would not have been possible if the applicant had overbalanced and crushed Silas.
·The re-enactment on video which accompanied these statements makes it very clear that the applicant did not fall on Silas.
·There was no earlier statement in the interview that he fell on Silas.
It is submitted on behalf of the applicant that, in the light of the stress that he was under, the fact that he had used heroin on the evening in question and that there is ordinarily variation in people’s recollection of events, this account was insufficient to discharge the Crown’s obligation to exclude the reasonable possibility that the injuries to Silas were caused by the applicant slipping, dropping Silas and falling on top of him. In my view, it was entirely a matter for the jury what weight they gave to the account given in the record of interview. But, in any event, the account fell to be considered in the light of the evidence as a whole, including a further record of interview.
The 30 May 2013 Record of Interview
On 30 May 2013, Detective Senior Constable Tony Hupfeld conducted a further video recorded interview with the applicant. During that interview, the applicant stated:
(q) that the bruising on Silas’s head occurred during a game he called ‘the planting game’ where he and Silas would put their heads on a pillow;
(r) that the bruising on Silas’s abdomen occurred during a game he called ‘the airplane game’ in which the applicant would throw Silas into the air and catch him again. The applicant said that on some occasions he would grab Silas too hard when he caught him, and on other occasions he would close his hands too quickly and Silas would fall down on his knuckles;
(s) that on 15 May 2013 he tripped while he was carrying Silas as he was walking out of the bathroom. As he tripped, Silas hit his head once on the carpet in the living room;
(t) that after Silas hit his head he cried for a short period of time. He seemed OK. He was still alert and crying. He was tired. He held onto the applicant’s shirt until he fell asleep;
(u) that Silas fell asleep in the applicant’s arms, holding onto the applicant’s shirt pocket;
(v) that Silas was alive and breathing when the applicant placed him in his cot on 15 May 2013; and
(w) by reference to a scale plan of the unit which he marked up, that he began to trip in the bathroom and continued to trip as he came out of the bathroom. He placed his arm on the door jamb of the doorway between the hallway and the lounge room. He marked the place where Silas’s head fell as within the lounge room.
At one point, the applicant said:
A … I know when I slipped with him the impact was quite hard.
Q The impact was quite hard?
AIf I even, couldn’t control my own fall, then I couldn’t support him in that fall. He seemed OK but …
It was open to the jury to conclude:
(x) that the applicant was again not saying that he himself fell heavily or at all onto Silas;
(y) that the applicant maintained that the bruising to Silas’s head and abdomen was accidentally caused in games played by him with Silas;
(z) that the description of the fall given to Detective Senior Constable Hupfield was materially inconsistent with the previous descriptions of the fall given by the applicant both as to location and dynamics; and
(aa) that after the fall, Silas appeared to be OK and alert although he was crying. Further, that he was able to hold onto the applicant’s shirt until he fell asleep.
Whatever view the jury took of what the applicant said or demonstrated to Senior Constable Gaffney at the scene of Silas’s death, the jury were entitled to weigh that evidence in part against the applicant’s subsequent statements.
Because it was open to find that the applicant’s statements in his records of interview (and more particularly that interview conducted only hours after the death of Silas) were inconsistent with the hypothesis that the applicant fell on Silas’s head in the course of a complex fall, this was a factor which they could in turn take into account in considering whether they were satisfied beyond reasonable doubt that this hypothesis should be excluded.
Similarly, the applicant’s account of the behaviour of Silas after the fall was a matter they could weigh against the medical evidence and treat as a relevant consideration.
Ultimately, however, the circumstantial evidence as to the injuries Silas suffered was critical to the question whether it was open to exclude the defence hypothesis and positively conclude Silas was not killed accidentally.
The skull fracture evidence
Post-mortem examination showed that Silas had suffered a series of significant skull fractures involving both a large diastatic fracture[11] and a number of fractures that crossed over each other.
[Image Redacted]
[11]Separation of parts normally joined together.
Both Dr David Ranson, forensic pathologist who was called on behalf of the Crown, and Professor Johan Duflou, forensic pathologist who was called on behalf of the defence, agreed that the points where the fractures appeared to branch may each have been the site where separate applications of force were applied. Both agreed that the skull fractures revealed by the medical imaging were either the result of a single very severe application of force or several severe applications of force.
Both pathologists agreed that the pattern of skull fractures could have been caused by an adult dropping the child, causing a fracture, and then falling on the child causing a severe crushing injury to the head.
Professor Duflou said that there is a very real problem in being precise about what kind of injury can or cannot be caused by a complex fall.
They also agreed that the significant skull fractures were not consistent with a simple fall from a relatively low level onto a flat surface. Both also said that, on rare occasions, complex skull fractures can be caused in low level falls, particularly if it is a more complex fall. Dr Ranson said that if a child was being held at chest height and simply fell to the floor he would not expect to see the extensive nature of fractures revealed in this case. If an adult kept hold of the child as he fell, or was able to stop their descent by maintaining their footing, velocity may be reduced and the amount of force to the head would be reduced. If more force were applied to the head, then it was more likely that a complex pattern of skull fractures would be caused.
Dr Thomas Gibson, a biomechanical engineer who was called on behalf of the Crown, conducted a series of experiments in an effort to reconstruct the forces that a child’s head would experience when dropped from 0.8 metres, elbow, and shoulder height. That reconstruction showed that if the head struck an area of carpeted floor between floor bearers at a height of 0.8 metres the risk of simple skull fracture was zero. If it dropped directly onto floor bearers from shoulder height there was a 36.7 per cent risk of a simple linear fracture occurring. After reviewing the relevant literature, Dr Gibson agreed that there was evidence that a simple fall at low levels could result in simple linear fractures. However, the fractures revealed in the post-mortem of Silas were not simple linear fractures and were more consistent with the complex fractures that were seen experimentally when skulls of infants of similar age to Silas have been dropped from a height of two metres onto a metal plate.
From the defence point of view, the opinions of Dr Ranson and Professor Duflou supported the hypothesis that a complex application of force resulting from a fall in which an adult fell on top of a child of similar age to Silas could cause the sort of skull fracture pattern seen on post-mortem examination.
The cross-examination of Dr Gibson with respect to experimental literature also supported this possibility. Indeed, some studies supported the view that the
peak linear acceleration caused by even a simple short fall could, on rare occasions, cause complex skull fractures.
The lucid interval
Dr Ranson gave evidence that, although persons suffering brain injury may enjoy a lucid interval after that injury before losing consciousness, having regard to the brain injuries suffered by Silas, unconsciousness in his case was likely to have been very quick. It would have occurred within minutes if not instantaneously. Professor Duflou agreed that Silas would have been alive for a relatively short time.
I agree with that on a number of grounds, first of all, the nature of the brain damage overall, and secondly then looking at the microscopy of the brain. You can see that there has been a period of survival, but it has probably not been a particularly long period. It was possible that there was a period of a few minutes before Silas became unconscious.
Professor Duflou also said that from first principles, if there was a lucid interval, such interval is more likely to have been one to two minutes rather than 15 minutes.
Other injuries
Silas was not suffering from liver or rib injuries when his stomach was palpated by Mr Smith at the local health care centre on 14 May 2013, the day before Silas’s death. The liver and rib injuries were consistent with a fall by the applicant on top of Silas. They were also consistent with a blow or blows to the front of the stomach or other forceful movement onto the abdomen.
The bruising to the head was greater than that observed by Mr Smith one day before Silas died. Nevertheless, the bruising was minor. There was also the possibility of some intervening bruising. The evidence was that Silas was an active child who had regular bumps and bruising to the head.
Next, it was possible that some bruising to the face and forehead might occur if the applicant fell on Silas.
The bruising to the torso and abdomen was not, however, so easily explicable. The evidence of Mr Smith, Dr Isaac and Ms Leithhead supported the view that Silas had only minor bruising to the torso and abdomen when he was left with the applicant prior to his death. On post-mortem examination, he had the bruising depicted in photograph 52.
[Image redacted]
Both pathologists were of the view that the ovoid bruises were recent, had a punctate quality and were likely to have been caused by multiple applications of force to Silas’s abdomen. The pattern of bruising was not consistent with a fall onto a flat surface, or an adult falling onto a child, as that would not cause ovoid bruising on the softer areas of Silas’s abdomen. Both pathologists said that the bruises were consistent with ‘fingertip’ bruising. Professor Duflou said:
I don’t think multiple discrete bruises are in general terms the result of one application of force. You can certainly get irregular surfaces which cause discrete bruises, but in again terms [sic] I don’t think that’s the case here.
Dr Ranson said that it was less likely that the ‘fingertip’ bruising had been caused by a squeezing action of the hands as there were no corresponding bruises on Silas’s back, which one would expect to find were that the cause.
The extent and pattern of the bruising was capable of founding the inference, when considered in the context of the sequence of events, that the applicant inflicted multiple applications of force upon Silas during the period he had Silas in his care immediately prior to his death.
The written submissions on behalf of the applicant state: ‘the torso bruising was the most difficult evidence for the defence at trial.’ In my view, the evidence was problematic for the defence essentially because it provided evidence of a context inconsistent with a single accidental fall of the type described by the applicant. It provided a context within which the jury could consider the hypothesis that the applicant fell on Silas accidentally. The pattern of deliberate applications of force was not adequately explained by the applicant’s description of playing games with Silas. The bruising observed by Mr Smith and Dr Isaac on Tuesday 14 May 2013 and by Ms Leithhead, when she bathed Silas both on the evening of Tuesday 14 May 2013 and again on the morning of Wednesday 15 May 2013, was very limited by comparison with that observed after death.
I accept the submission made on behalf of the Crown that the only reasonable inference open to the jury was that significant bruising to Silas’s abdomen and torso, some bruising to his face and head, laceration to his liver, and massive injuries to his skull and brain were inflicted during the period in which Silas was left alone with the applicant on Wednesday 15 May 2013.
The evidence as to the fall
In turn, it was open to the jury to be satisfied beyond reasonable doubt that Silas did not suffer the fatal brain injuries when the applicant accidentally fell on top of him because:
(bb) that hypothesis was directly inconsistent with the applicant’s own statements to investigating police in his records of interview;
(cc) that hypothesis fell to be considered in the context of multiple injuries including extensive bruising to the torso and abdomen which was inconsistent with some playing around followed by a single accidental fall;
(dd) the injuries suffered by Silas made it improbable that he appeared OK and had the lucid interval clutching the applicant’s shirt which the applicant described as occurring before he put Silas to bed; and
(ee) the applicant gave materially inconsistent accounts of the alleged trip and fall.
The confessional evidence
On 30 May 2013, the applicant was remanded at the Melbourne Custody Centre. Whilst in his cell, he had a conversation with two other prisoners when they were in an adjacent exercise area.
Witness A had previously met the applicant, Ms Leithhead and Silas at Odyssey House. He worked with Ms Leithhead in the kitchen at Odyssey House on a daily basis and was well acquainted with Silas.
He left Odyssey House on 26 March 2013 and remained drug-free for approximately two months. He then commenced using illicit drugs again and re-offended.
He was remanded in custody on 9 May 2013 and placed in the Melbourne Custody Centre. Whilst there he saw a news report of the death of Silas. His partner was a friend of Ms Leithhead and he discussed the news report with her when she visited him.
The trial judge summarised the evidence of witnesses A and B for the jury as follows:
Witness A said that when Mr Ta-Vuong arrived at the Custody Centre he saw other prisoners screaming and yelling at him and banging on his door and he said that he did not do the same thing but his cell mate did once or twice. He later conceded that he too abused Mr Ta-Vuong but to a lesser extent.
Witness A said the first time he spoke to Mr Ta-Vuong, Mr Ta-Vuong was in his cell and Witness A was in the exercise yard looking through the window into Mr Ta-Vuong’s cell. He thought they first nodded at each other in recognition and then Witness A asked Mr Ta-Vuong what had happened, why he was there. Mr Ta-Vuong said he had been spending time with Kate [Leithhead], they had been using drugs together consistently. He told Witness A how much money they had been spending on drugs. Mr Ta-Vuong said that Kate was leaving the flat to score drugs at various times and that was frustrating him because she often took quite a long time to score. His suspicions were aroused as to why she was taking so long and he ‘theorised’ is the word Witness A used, I think, that she was either ‘fucking the dealer or fucking around with the dealer’. He said this was frustrating him no end and he mentioned that she was ruining his life because of the influence she had on his life in terms of their drug addiction and how heavy her addiction was and that affected him being an addict as well. He blamed her for the relationship they had struck up at Odyssey House and he blamed her for having to leave Odyssey House.
According to Witness A, Mr Ta-Vuong said that ‘due to his frustrations he started to horse around with Silas and engage him in rough play. He’d pick Silas up above or about head height and drop Silas on the floor from that height’. When Witness A said, ‘What, just that one time?’, Mr Ta-Vuong gesticulated a few times and said, ‘No, up to five, three or four times, maybe even five’.
Witness A said Mr Ta-Vuong demonstrated by standing up and doing a sort of motion like a dropping motion. He demonstrated the motion. He said that Mr Ta-Vuong might even have picked up a blanket or something and thrown something on the ground to show him.
Witness A was asked whether he had a vivid memory of Mr Ta-Vuong throwing the blanket down and he said, ‘Not vivid, if it was vivid I’d, you know, be a bit more sure but I do remember him throwing the blanket down’.
In fact, as you know, it was shown in cross-examination that Witness A could not see Mr Ta-Vuong’s demonstration because he was on the other side of the yard looking into another cell when that was done.
In response to this evidence, Witness A agreed that he knew about the blanket being thrown on the ground because he and Witness B spoke about it later. He agreed he must have been told about the blanket going on to the ground by Witness B. However, he insisted that he remembered there being a confession ‘most definitely and vividly’. He remembered certain words spoken ‘most definitely and vividly’. Certain other things he was not too precise on and clearly he was wrong on other things. He said it seemed more likely, looking at the footage of the second conversation, that Mr Ta-Vuong may have been confessing at that point. However, they had had a few conversations over a few days and he was not exactly sure.
Witness A confirmed that Mr Ta-Vuong told him he was on drugs at the time the event occurred. He was fairly certain Mr Ta-Vuong had said he was ‘iced off his brain’ — ‘ice’ being a reference to methamphetamine.
Now, you have been told by Detective Hupfeld about the toxicology report on Mr Ta-Vuong which showed no evidence of methamphetamine in Mr Ta‑Vuong’s system. You will also recall Kate saying that she did not use methamphetamine and, and this is a comment by me, the offence that she took when she was asked whether she slept with her dealers. She said she did not and that Mr Ta-Vuong never accused her of doing so. She also said she did not have dealers, she only had one dealer.
As to Witness B, he confirmed that when Mr Ta-Vuong arrived there were people inside their cells and in the yard yelling abuse at him. Witness B was swearing at him as well from the yard. He went up to Mr Ta-Vuong’s cell and he swore through the cell door. The following day, he says, he apologised to Mr Ta-Vuong for swearing at him and had another conversation with him while he was standing outside the door to Mr Ta‑Vuong’s cell.
Now the conversation he recounts having had with Mr Ta‑Vuong was mediated through Witness A who asked the questions while he listened.
Witness B said that Mr Ta-Vuong was basically saying it was not all his fault and that the mother was at fault as well, she had gone out to score and was late. Mr Ta-Vuong said he believed Kate was having an affair with the person who was trafficking. He was getting very upset and very agitated while he was saying this. He was playing roughly with the child. According to Witness B he grabbed hold of a blanket, raised it above his head and threw it on the floor and said, ‘That’s what I did with the baby’. Witness B said he saw Mr Ta-Vuong with the blanket and he remembers Mr Ta-Vuong crying later. However, Witness B does not recall whether Mr Ta-Vuong used words to describe what he did when he threw the blanket on the floor.
Witness B said, ‘Yes, he did say he was playing roughly with the child and then he fell and he demonstrated with his hands and he dropped the blanket’.
Now, of course, Witness B was asked about using the word ‘fell’ in relation to what Mr Ta-Vuong demonstrated or described to him. When asked, ‘Who fell?’, he said, ‘He was playing, as in playing with the child roughly and then he fell. He was upset and that’s why he told us. Sorry, sorry, no, not he fell down, I don’t know what’.
In re-examination Witness B was asked who fell, he said, ‘The baby, the baby fell because he threw it’.
To this summary may be added the following matters:
(1) Both witnesses A and B rejected the suggestion that the applicant described what had happened to Silas as an accident.
(2) As the trial judge made clear, the evidence of both witnesses A and B fell to be assessed against closed circuit television video (‘CCTV’) evidence showing simultaneously what occurred in the applicant’s cell and the adjacent exercise area. That evidence, amongst other things, showed the applicant apparently agitated and stressed. It also showed him at one point picking up a bed sheet, rolling the bed sheet up quickly, stepping backwards, throwing the sheet on the ground, raising his hands with the palms facing upwards and outwards and gesturing to the bundle on the floor. He then stood on the bundle and gestured with his two hands in a downward motion as though something was between his hands. He then pushed the bundle behind him with his foot and again used his two hands to make a downwards gesture. Shortly afterwards he made one last vigorous downwards gesture with two hands.
The Crown case was that what the jury could see for themselves on the CCTV footage materially corroborated the evidence of witnesses A and B. The defence case was that the CCTV footage was consistent with a re-enactment of an accidental fall and that the gestures relied upon by the Crown were essentially equivocal.
In the course of cross-examination, both witnesses A and B admitted extensive prior convictions. Witness A agreed that he had 47 prior convictions for theft, 28 prior convictions for burglary, 10 prior convictions for attempted burglary, seven convictions for theft of a motor vehicle, six convictions for handling stolen goods, and four convictions for obtaining property by deception. He received one term of imprisonment in 2000, two in 2003, one in 2004, one in 2006, one in 2007, one in 2008 and a further one in 2010. He was sentenced on 26 March 2013 to 365 days’ imprisonment, which was partially suspended for 18 months. As a result, he was at risk of 281 days’ further imprisonment being enlivened if he committed another offence during the suspended sentence. On 9 May 2013, he was arrested and remanded for car theft. Police subsequently provided the magistrate at Dandenong with a letter of comfort detailing the assistance that witness A had provided in the present case for the purposes of a plea in respect of the car theft charge. He received a six month drug treatment order. When cross-examined, witness A denied that he was lying in the present case in order to avoid serving the further 281 days of imprisonment.
In cross-examination, witness B agreed that on 14 August 2013, when he was sentenced for offences of indecent assault and breach of an intervention order, he received a two month sentence of imprisonment but this was wholly suspended. He had received a letter from police recognising the assistance he had given in relation to this matter.
Witness B admitted that in January 2013 he had been sentenced to 12 months’ imprisonment for breaching his intervention order twice, recklessly causing serious injury to his partner and assaulting his partner. Prior to that, in 2006, he had been convicted twice of breaching the same intervention order. He had been to prison a number of times over the previous 15 years. He had six convictions for drug trafficking, including trafficking in cannabis and methamphetamine. He also had convictions for theft, burglary, receiving stolen property and dishonestly handling stolen property. He said that these offences arose out of his drug addiction.
In the course of her charge, the trial judge went on to give the jury detailed and careful directions concerning the manner in which they should approach the question of the reliability of the evidence of witnesses A and B.
In so doing, her Honour gave a warning which identified the reasons that the evidence might be regarded as unreliable, namely the bad character of the witnesses, the fact that they had a motive to distort the truth, and the fact that evidence of oral confessions may easily be fabricated. Her Honour directed the jury that they must take into account the potential unreliability of witnesses A and B before accepting their evidence. Her Honour then warned the jury in the following terms:
Now because the evidence of Witness A and Witness B is significant in this case, it is evidence of a confession, I must emphasise the need for great caution in approaching that evidence. It would be dangerous for you to convict Mr Ta-Vuong on the basis of that evidence unless you are satisfied that it can safely be relied upon despite the risks that I have outlined.
Now, I make the comment that there are particular factors that place Witness A and Witness B in what might be described as ‘the very unreliable category’ — the fact that Witness B admitted to abusing Mr Ta-Vuong only minutes before the alleged confession and the fact that Witness A did not see the demonstration that he initially gave evidence of seeing.
Now, in considering the safety of relying on the prison informers’ evidence, you should have regard to any supporting evidence led in this trial that you accept.
If you find there was independent supporting evidence, it may assist you in concluding that Witness A is telling the truth and/or that Witness B is telling the truth. Conversely, if you find there was no supporting evidence that you accept, you should be less ready to accept their evidence.
I remind you again that you must exercise great caution before relying on the evidence of a prison informer. This does not mean that you cannot rely on the evidence of Witness A or Witness B to find that Mr Ta-Vuong confessed in the way that they described, however, it means you should not do so unless you have subjected their evidence to very close and careful scrutiny and having regard to the dangers I have described, you are satisfied of its truth and that it is safe to convict upon it despite its unreliable source.
Understandably, there is no complaint on appeal as to the adequacy of these directions. Rather, it is submitted that the jury could not have placed any weight whatsoever upon the confessional evidence because of the unreliability of the witnesses.
This submission must confront two threshold problems. First, it was not submitted at trial or on appeal that the evidence did not meet the requirements of relevance under s 55 of the Evidence Act 2008 or that it should have been excluded pursuant to s 137 of that Act. In other words, the evidence was treated at trial as being capable of having probative value.
There is no simple correspondence between the proposition that a witness is unreliable and the proposition that what he or she says is necessarily of no probative value. At one stage, historically, the common law did exclude evidence from witnesses who were regarded as persons of moral depravity by reason of prior dishonesty. Wigmore analyses the problems with this approach as follows:[12]
§ 515. General principle. A quality which affects only the element of communication [as distinct from observation and recollection] is moral depravity. One who is wholly capable of correct observation and of accurate recollection may still be so lacking in the sense of moral responsibility as to be likely to tell his story with entire indifference as to its correspondence with the facts observed and recollected by him. The question is whether any person should be deemed upon such grounds to lack the fundamental capacity of a witness.
There are two objections to any attempt to establish such an incapacity. The first is that in rational experience no class of persons can safely be asserted to be so thoroughly lacking in the sense of moral responsibility or so callous to the ordinary motives of veracity as not to tell the truth (as they see it) in a large or the larger proportion of instances; or, in more accurate analysis, no such defect, if it exists, can be so well ascertainable as to justify us in predicating it for the purpose of exclusion. The second reason is that, even if such a defect existed and were ascertainable, its operation would be so uncertain and elusive that any general rule of exclusion would be as likely in a given instance to exclude the truth as to exclude falsities. It is therefore not a proper foundation for a rule of exclusion.
[12]John Henry Wigmore, Wigmore on Evidence (Little, Brown and Company, Chadbourn Revision 1979) § 515 (citations omitted).
Wigmore’s reasoning echoes that of Jeremy Bentham in his Rationale of Judicial Evidence,[13] which Wigmore quotes at § 519.
[13]Jeremy Bentham, Rationale of Judicial Evidence (Hunt and Clarke, Bowring’s ed, 1827).
In the present context, a jury might regard the very extensive criminal records of witnesses A and B for offences of dishonesty as explicable by reference to their drug addiction. In turn, the jury might reason that those criminal records and the other matters identified for them by the judge were not of themselves sufficient reason to reject evidence of the kind here in issue.
The first difficulty which the applicant must confront is thus that it may have been open to the jury to accept the evidence of unreliable witnesses in respect of particular matters as materially reliable.
The second difficulty is that, as the judge made clear, a jury must assess the probative force of particular evidence in the context of the evidence as a whole and not in isolation. In the present case, the CCTV evidence might be regarded as corroborating the following matters.
(1) There was a discussion between the applicant and witnesses A and B concerning the death of Silas. This is not disputed by the applicant.
(2) The applicant was emotionally agitated during this discussion, as evidenced by his dramatic arm gestures and general demeanour.
(3) The applicant did act out the manner in which Silas came into contact with the floor.
(4) In turn, this evidence fell to be considered in the light of the evidence as to the injuries Silas suffered before his death and as to the applicant’s statements to investigating police.
The jury had the benefit of seeing witnesses A and B give evidence. That evidence was not directly contradicted by evidence from the applicant.
The assessment of the extent to which the CCTV evidence and the objective evidence as to the injuries suffered by Silas might properly be regarded as corroborating the evidence of witnesses A and B were matters quintessentially for the jury to decide. The jury was also entitled to take into account their assessment of the evidence of what the applicant told investigating police when initially questioned and interviewed.
When the above matters are considered in combination, the proper conclusion is that, whilst it would be unsafe to convict on the basis of the evidence of witnesses A and B alone, it was open to the jury to accept that evidence as tending to confirm and corroborate the conclusion that the applicant caused the death of Silas by deliberately dropping or throwing him onto the floor.
Conclusion
For the reasons I have explained, the jury were entitled to be satisfied beyond reasonable doubt that the applicant did not cause the fatal injuries as a result of an accidental fall onto Silas. Once this conclusion was reached, then the hypothesis of accidental death did not constitute a reasonable possibility precluding or standing in the way of a conclusion beyond reasonable doubt that the applicant deliberately caused the fatal injuries to Silas. The hypothesis did not, in terms of the metaphor adopted on behalf of the applicant in submission, constitute a solid obstacle to satisfaction beyond reasonable doubt of guilt.
Moreover, as the applicant’s formulation of the ‘only question’ on appeal implicitly concedes, once it was open to exclude the hypothesis of accident, then it was well open to the jury to be satisfied of the applicant’s guilt on the basis of the evidence as a whole.
If the hypothesis of a fall onto Silas was rejected, then the combination of the evidence as to the limited opportunity in time for the infliction of injuries prior to the death of Silas, the nature of the injuries suffered during that relatively short window of time, and the nature and consequences of the fatal head injuries permitted the conclusion beyond reasonable doubt that the applicant deliberately caused the fatal head injuries. This conclusion was also capable of being regarded as buttressed by the alleged prison cell confession.
Accordingly, leave to appeal against conviction should be refused.
PRIEST JA:
I have enjoyed the considerable advantage of reading in draft both the reasons of Osborn JA and of Croucher AJA.
Having considered the record of the trial for myself, I harbour no reasonable doubt about the applicant’s guilt. In the main, I agree with the painstaking analysis undertaken by Osborn JA, and the conclusions that his Honour has reached. I wish, however, to add some observations of my own.
First, I agree with the ‘first qualification’ expressed by Croucher AJA in his reasons. Although the applicant gave apparently differing accounts, there was sufficient from which it could be concluded that he had advanced a version of events in which he lost his balance, dropped Silas and fell on him. On the preponderant evidence, however, it was open to the jury to reject the applicant’s account (or, perhaps, accounts) of how the child became injured.
Secondly, I agree substantially with what Croucher AJA has said, as part of his ‘second qualification’, about the evidence of witness A and witness B. I too entertain a doubt about the disputed aspects of their evidence. But as his Honour points out, it was open to the jury to accept their evidence. In my view, it was open to the jury to reject their evidence entirely and yet still be satisfied beyond reasonable doubt of the applicant’s guilt. Indeed, I regard the remaining evidence as being conclusive of the applicant’s guilt.
In my opinion, the evidence compelled the conclusion that the little boy suffered the catastrophic injuries from which he died when he was in the company of the applicant. No other rational conclusion is open, in my view, other than that the injuries from which Silas died were inflicted in the short period when Ms Leithhead was absent buying drugs. When she left the child in the applicant’s care the child was, apart from some minor bruises, uninjured.
There seems no doubt that when the student doctor, Mr James Smith, palpated the little boy’s abdomen at the health care centre on Tuesday, 14 May 2013, the day before he died, the child was not suffering from any liver or rib injuries. Further, Mr Smith observed only two bruises on the right temple, and two or three bruises on the child’s right chest above the nipple line. Moreover, when she bathed Silas on both Tuesday evening, and in the morning of the day he died, Ms Leithhead saw no bruises on him beyond those that had been observed by Mr Smith (save, perhaps, for one on the lower abdomen). Although the liver and rib injuries detected post-mortem might have been explained by a fall, the bruising to the torso and abdomen found post-mortem could not be satisfactorily so explained. The bruises found after death were consistent with ‘fingertip’ bruising, the pattern of which was inconsistent with a fall onto a flat surface. And, although they did not agree on everything, both pathologists thought that the ‘ovoid’ bruises were likely to have been caused by multiple applications of force to the child’s abdomen. The evidence is convincing, in my view, that the applicant caused the bruising to the child’s abdomen through multiple applications of force during a confined window of opportunity when Ms Leithhead was buying illicit drugs.
The evidence also compels the conclusion that Silas suffered skull fractures, and resulting brain injuries, during that small window of opportunity. Both pathologists agreed that, generally speaking, the pattern of the skull fractures was not consistent with a simple fall onto a relatively flat surface (although, on rare occasions, complex skull fractures may result from a low level fall). As Osborn JA points out, however, both Dr Ranson’s and Professor Duflou’s evidence supported the hypothesis that the kind of skull fracture pattern observed in the dead child could have resulted from the complex application of force resulting from an adult falling on top of a child. (Such a complex fall would not, however, satisfactorily explain the abdominal bruising.)
To my way of thinking, an important piece of evidence, pointing tellingly to the applicant’s guilt, is that concerned with what was described as the ‘lucid interval’ which might follow the kind of catastrophic brain injury that the little boy suffered. Dr Ranson said that although there may have been a short lucid interval after the brain injuries occurred, unconsciousness was likely to have resulted within minutes if not instantaneously. Professor Duflou thought that, if Silas had a lucid interval, it would have been for only a short time, likely one or two minutes. During the record of interview with Detective Hagger, however, the applicant claimed that, after the supposed fall, Silas cried but was alert and conscious, and did not appear dazed. The applicant then asserted that he cuddled the child, who settled quickly until he fell asleep. In my opinion, having regard to the pathologists’ evidence, the applicant’s claim that Silas was alert, conscious and not dazed, simply cannot be accepted. The ‘lucid interval’ evidence provides a compelling reason to reject, as I do — and as it was open to the jury to do — the applicant’s claim that Silas came by his fatal injuries in an accidental fall.
There are two final matters upon which I wish to comment.
First, employing a metaphor approved of in Klamo,[14] counsel for the applicant submitted that there was a ‘solid obstacle’ to reaching a conclusion beyond reasonable doubt that the applicant caused the fatal head injuries. In my view, however, caution must be exercised in resorting to metaphor in a case such as the present. I adhere to, and venture to repeat, what I said in O’Brien,[15] in which I said:[16]
It needs to be borne steadily in mind that the metaphors referred to in the last sentence of the extracted passage are no more than that. They were apt for the facts of the cases from which they were drawn, but it should not be thought that they add any gloss or additional requirement to the essential test spelled out by the High Court in M[17] (and the later cases in the High Court which apply it[18]) – whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Such metaphors – convenient for the cases in which they were used – should not be permitted to obscure (let alone displace) the fundamental test prescribed by M.
The two metaphors referred to by Maxwell P in Klamo are derived respectively from remarks of Doyle CJ in Shah and Mason P in Morabito. In Shah,[19] the Court of Criminal Appeal of South Australia, by a majority (Doyle CJ and Sulan J, Debelle J dissenting), set aside as unsafe and unsatisfactory convictions for wounding with intent to cause grievous bodily harm and assault. The convictions had arisen out of an attack in a suburban Adelaide street in the early hours by one group of men on another group. Identification was in issue. Evidence from a security video – if the time was correctly recorded on the video – showed that the appellant could not have been in the vicinity of where the attack took place at the time that it occurred. There was no evidence that the time recorded by the video was incorrect. Doyle CJ agreed with the reasons of Sulan J (who applied the test from M),[20] and added:[21]
The real obstacle to acceptance of the prosecution case is, as Sulan J says in his reasons, the evidence from the security cameras strongly suggesting that Mr Shah was still at the hotel when the attack was happening. I agree with Sulan J that there was no basis upon which the jury could have been satisfied that the attack occurred later than Sulan J puts it, or that the security cameras displayed incorrect times. It was not open to the jury to speculate that, for some unknown reason, the evidence about the time of the attack, or from the security cameras, was unreliable. There was simply no basis upon which the jury could put that evidence aside. This body of evidence is, on the material before the jury, a solid obstacle to reaching a conclusion beyond reasonable doubt, based upon the identification evidence and the other circumstantial evidence, that Mr Shah was a participant in the attack.
Morabito[22] was a case of dangerous driving causing death and grievous bodily harm. The prosecution case was that the appellant, driving a prime-mover with trailer, was inattentive to his driving and collided with other vehicles causing the death of three people and serious injuries to another. It was the appellant’s case that shortly before the first relevant collision with the rear of a Toyota Hilux, something caused his windscreen to shatter or craze so that he could not see through it. The prosecution case principally was put on the basis that the appellant failed to keep a proper lookout. But it was also put in the alternative that if the jury found it was reasonably possible that the windscreen broke only a very short time before the impact with the rear of the Hilux, that still did not explain why on a clear day with clear visibility on a flat, straight stretch of the highway, while the appellant was sitting in an elevated position, the appellant failed to see what was happening in front of him. Accordingly, there was more than one path to conviction. The Court of Criminal Appeal of New South Wales (Mason P, Hidden and Rothman JJ) dismissed the appeal, it being contended that the verdicts were unsafe and unsatisfactory. After observing that the ‘legal principles are not in dispute’, and citing M,[23] Mason P said:[24]
My understanding of the principles relating to challenging a conviction on the ground that the jury’s verdict was unreasonable is that the appellant must persuade the appellate court that it was not open to the jury acting reasonably to arrive at their verdict. If one path to a conviction is open and beyond successful attack by reference to this standard, then an appellant who cannot disentangle the jury’s verdict is unable to sustain the burden of displacing that verdict. In any event, the jury was in my view equally entitled to conclude beyond reasonable doubt that even if the appellant was possibly to be believed on the matter of the shattered windscreen, dangerous driving causative of death and grievous bodily harm were still established. ...
The particular facts of Shah and Morabito give context to – and explain – the metaphors that were used. In Shah the security camera footage was the ‘solid obstacle’ to conviction; and in Morabito, because of the alternative ways in which the prosecution case was put, more than ‘one path to a conviction [was] open’. In neither of those cases, however, did the court essay any additional requirement to, or qualification of, the test to be derived from M. It follows, in my view, that similar metaphors generally would be inapt to cases which turn on credibility. …
[14]R v Klamo (2008) 18 VR 644, 653-4 [38]–[40] (Maxwell P).
[15]O’Brien (a Pseudonym) v The Queen [2014] VSCA 94 (‘O’Brien’).
[16]O’Brien [79]–[82].
[17]M v The Queen (1994) 181 CLR 487 (‘M’).
[18]Jonesv The Queen (1997) 191 CLR 439; Gipp v The Queen (1998) 194 CLR 106; MFA v The Queen (2002) 213 CLR 606; R v Hillier (2007) 228 CLR 618; SKA v The Queen (2011) 243 CLR 400. See also Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J).
[19]R v Shah [2007] SASC 68.
[20]Ibid [143].
[21]Ibid [4] (emphasis added).
[22]Morabito v R [2007] NSWCCA 126.
[23]Ibid [30].
[24]Ibid [34].
Finally, I wish to say something about the manner in which the evidence of the pathologists was led in the trial.
Dr David Ranson, a forensic pathologist at the Victorian Institute of Forensic Medicine, carried out a post-mortem examination of the deceased child. His evidence, of an expert nature, was introduced as part of the prosecution case. Before the prosecution case was closed, however, and immediately following Dr Ranson’s evidence, defence counsel was permitted to call Professor Johan Duflou, a forensic pathologist at the Department of Forensic Medicine, Sydney, to give evidence as part of the defence case. The interposition of a defence witness in the midst of the prosecution case was thought to be contemplated by Practice Note No 2 of 2014, Expert Evidence in Criminal Trials. It seems to have been assumed by counsel and judge that it was proper to interpose a defence witness before the close of the prosecution case in light of the Practice Note, which relevantly provides:[25]
[25]See also Criminal Procedure Act 2009 s 189.
Consecutive or concurrent evidence
11.1 Where—
(a) two or more parties have served expert evidence relating to the same issue or relating to two or more closely related issues;
(b) the commissioning parties agree; and
(c) the Court so orders,
evidence may be given by the experts consecutively (ie one after the other) or concurrently (ie with all of the experts present in court, sworn or affirmed at the same time).
11.2 The procedure to be followed for consecutive or concurrent evidence is to be determined by the Court, with the expectation that the parties will have conferred in advance and attempted to agree on the procedure.
No matter how convenient it might be thought to be to call a defence expert before the prosecution case is concluded, in my view it is not a course authorised by statute. Indeed, it seems to me that s 226 of the Criminal Procedure Act 2009 contemplates that an accused is entitled ‘to answer the charge by choosing to give evidence or call other witness to give evidence or both’ only after ‘the close of the case for the prosecution’. In the circumstances of this case, however, the course taken with respect to the evidence of the experts can have had no effect on the verdict.
The application for leave to appeal against conviction must be refused.
CROUCHER AJA:
Disposition of the application
I have had the benefit of reading the judgment of Osborn JA in draft. For the reasons his Honour gives (subject to two minor qualifications), I agree that the application for leave to appeal against conviction should be refused.
The applicant’s account
The first qualification arises in this way.
In my view, despite the seemingly differing accounts the applicant gave, when regard is had to the evidence of Senior Constable Gaffney, it was open to characterize the applicant’s version as being to the effect that he slipped or tripped, dropped Silas and then fell on him.
But, while that conclusion makes the applicant’s argument in this Court more tenable, it does not compel its acceptance. Just because this version of the applicant’s account was arguably consistent with the medical evidence as to how the fatal injuries might have been caused does not mean the verdict is unsafe. That an accused person has given an account consistent with innocence — whether in a police interview, to another and/or on oath before a jury — does not necessarily compel a jury to accept that account, or to fail to reject it on the criminal standard of proof, when there is other evidence pointing towards guilt. Yet that is what the applicant’s submission seemed to come down to in the present case. Rather, the question remains whether, on the whole of the evidence, it was open to a properly instructed jury to be satisfied beyond reasonable doubt of the applicant’s guilt.
In my view, for the reasons given by Osborn JA, even accepting the applicant gave the exculpatory version for which counsel plumped in this Court, it was still open to the jury, on all of the evidence, to be satisfied beyond reasonable doubt that that account should be rejected and that the Crown theory, of a conscious, voluntary and deliberate throwing or dropping of the child with murderous intent, should be accepted.
The confessional evidence
The second qualification is this.
Having read the evidence of A and B and having considered the CCTV footage, I entertain a doubt about the disputed aspects of their evidence, even when considered in light of the other evidence at trial. They were men of poor character and repeated acts of criminal dishonesty. Each had an obvious and powerful motive to implicate the applicant falsely — namely, the hoped-for assistance of police, in the form of a letter of comfort, in respect of their own criminal proceedings. A was proven to have lied about his ability to see the alleged demonstration. It is also likely that he lied about the applicant’s telling him he had used ice. B admitted he and other prisoners were angry at and abusive towards the applicant. B’s account, on the question whether the applicant said he or the child fell or the child was thrown, was less than impressive.
Further, I found the CCTV footage to be equivocal. In my view, it does not prove that the applicant threw or dropped the child from a great height. Nor, to my way of thinking, does it prove or support the conclusion that the applicant told A and/or B that he did any such thing.
I am fortified in my doubts about the evidence of A and B by the fact that the trial judge, who of course had the benefit of seeing and hearing the witnesses, was not satisfied beyond reasonable doubt about their evidence.[26]
[26]See her Honour’s reasons for sentence: The Queen v Ta-Vuong [2014] VSC 574 [22]-[23].
But, again, none of this makes any difference to my ultimate conclusion that the application should be refused. There are two reasons.
First, while neither the trial judge nor I accept the disputed aspects of A and B’s accounts, that evidence was capable of being accepted by a tribunal of fact. The jury, like the trial judge, but unlike this Court, enjoyed the singular benefit of seeing and hearing those witnesses give their evidence. Putting aside A’s blatant lie about witnessing the demonstration, the essential aspects of their accounts were not so flawed or implausible as to be incapable of acceptance. Instead, it was a matter for the jury, having regard to A and B’s imperfections as witnesses and the careful warnings the trial judge gave, whether they accepted that evidence and, if so, to what extent they considered it assisted the Crown case.
Secondly, as Osborn JA concludes,[27] even if the evidence of A and B is put to one side, there was sufficient in the remaining evidence for the jury to be satisfied beyond reasonable doubt that the applicant’s account should be rejected and that, instead, the truth of the matter was that he deliberately caused the head injuries that led to the child’s death. As counsel for the applicant conceded on the hearing of the application, once that conclusion is open, given the nature of those injuries, it was also open to the jury to find murderous intent.
[27]At [94]-[96], above.
Conclusion
Accordingly, the application must fail.
Postscript
Since drafting this judgment, I have had the benefit of reading the judgment of Priest JA in draft. I agree with his Honour’s additional observations on the effect of the evidence at trial. I also agree with his Honour’s comments both on the use of metaphors when considering whether a verdict is unreasonable or cannot be supported having regard to the evidence and on interposing the defence expert before the close of the prosecution case.
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