The Queen v Jamie Schofield (No 4)
[2014] ACTSC 151
•27 June 2014
THE QUEEN v JAMIE SCHOFIELD (NO 4)
[2014] ACTSC 151 (27 June 2014)
CRIMINAL LAW – PARTICULAR OFFENCES – Offences against the person – Assault – Judge alone trial – Reasonable doubt exists – Accused found not guilty
Children and Young People Act 2008 (ACT), s 356
Criminal Procedure Act 1986 (NSW), s 33
Supreme Court Act 1933 (ACT), s 68B
Fleming v The Queen (1998) 197 CLR 250
Knight (1988) 35 A Crim R 314
Liberato v The Queen (1985) 159 CLR 507
R v DM [2010] ACTSC 137
R v Gabriel (2004) 182 FLR 102
R v Massey [2000] ACTSC 107
R v Mulcahy [2010] ACTSC 98
R v Murray (1987) 11 NSWLR 12
R v Schofield (No 2) [2013] ACTSC 248
R v Schofield (No 3) [2013] ACTSC 249
No. SCC 63 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 27 June 2014
IN THE SUPREME COURT OF THE )
) No. SCC 63 of 2013
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
V
JAMIE SCHOFIELD
ORDER
Judge: Refshauge J
Date: 27 June 2014
Place: Canberra
THE COURT ORDERS THAT:
On the third count, Jamie Schofield is not guilty of the charge that he assaulted Trevor Schofield between 6 March and 25 May 2011.
On the fourth count, Jamie Schofield is not guilty of the charge that he assaulted Trevor Schofield between 6 March and 25 May 2014.
Trevor Schofield was born in January 2011 to the accused, Jamie Schofield, and his then partner, Tiffany Harber.
On 25 May 2011, a teacher or teachers at a program for students with infants and children, the Canberra College Carers program, noticed bruises to Trevor’s head and abdomen and made a report to the Director-General of the Community Services Directorate of the ACT Government to comply with s 356 of the Children and Young People Act 2008 (ACT).
Trevor was removed from the custody of Mr Schofield and Ms Harber and examined by the Child At Risk Unit (CARU) at The Canberra Hospital and subsequently placed in foster care.
Staff of CARU found, in the course of their examination, injuries to Trevor which they considered to be non-accidental. As a result an investigation by Care and Protection Services of the Community Services Directorate and the Australian Federal Police was conducted. Following information provided to police by Ms Harber, Mr Schofield was suspected of causing the injuries to Trevor.
On 7 August 2012, Mr Schofield was arrested and charged with two counts of assaulting Trevor and occasioning him actual bodily harm.
On 15 May 2013, Mr Schofield was committed for trial to this court.
An indictment was presented on 21 June 2013, charging Mr Schofield with two counts of assaulting Trevor and occasioning him actual bodily harm and, in the alternative, two counts of common assault on Trevor.
On 22 July 2013, Mr Schofield signed an Election for Trial by Judge Alone under s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).
On 20 November 2013, he was arraigned and the trial commenced before me.
Trial by judge alone
Under s 68C of the Supreme Court Act a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as the verdict of a jury.
The judgment of the Court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. Though on appeal from a trial conducted under procedure regulated by s 33 of the Criminal Procedure Act 1986 (NSW) (a similar provision to s 68C of the Supreme Court Act), the High Court in Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached. In R v Massey [2000] ACTSC 107, Einfeld J held that the obligations stated by the High Court in that decision set out the obligations of a judge conducting a trial by judge alone under s 68C of the Supreme Court Act.
Section 68C also requires me, as the trial judge when considering my verdict, to take into account any warning, direction or comment that any Territory law requires to be given or made to a jury in such proceedings.
There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.
As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as to apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and Mr Schofield are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of Mr Schofield at all times. Mr Schofield does not have to prove that he did not commit the offences charged.
If Mr Schofield does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and Mr Schofield cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
Mr Schofield is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. Mr Schofield then loses the presumption of innocence and I must find him guilty.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he remains presumed innocent and I must find a verdict of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of Mr Schofield of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find Mr Schofield not guilty.
I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experiences and wisdom in assessing the evidence.
Mr Schofield gave evidence on oath. He was not required to do so; he could have elected not to give evidence. He thereby became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse because he is the accused than the evidence of any other witness in the trial and must be considered in the same way as the evidence of other witnesses. By giving evidence, however, he did not assume any onus to prove anything at the trial.
The proceedings
The prosecution called Ms Harber, Jan Marshall, a staff member of the Canberra College Carers Program, Tanya Saxvik, an officer of the Community Services Directorate, Ms Harber’s mother, Christine Harber, and father, Mark Harber, Dr Judy Bragg of CARU and Shayla Holder, a neighbour of Ms Harber, to give evidence.
The prosecution identified two incidents which were those the subject of the four charges. The first was said to be an occasion when it is alleged that Mr Schofield punched Trevor in the stomach with a clenched fist. The second was said to be when Mr Schofield is alleged to have squeezed Trevor “about the stomach abdomen” with his finger going under Trevor’s rib cage, causing him to vomit and cry.
In relation to each incident, Mr Schofield was charged with assault occasioning actual bodily harm and, in the alternative, common assault.
At the end of the prosecution case, it was properly conceded by the prosecution that there was no evidence that any punch had caused actual bodily harm and Mr Schofield was acquitted of the charge of assault occasioning actual bodily harm that related to that incident.
Mr A Hopkins, counsel for Mr Schofield, also made a submission that, in the light of the evidence that was adduced as to the second incident, the charge of assault occasioning actual bodily harm could not be made out. I accepted that submission for reasons set out in R v Schofield (No 2) [2013] ACTSC 248.
That left the two alternative charges of common assault remaining. I declined a request from Mr Hopkins that I should give myself a Prasad direction: R v Schofield (No 3) [2013] ACTSC 249. Mr Schofield and his mother, Rose Schofield, gave evidence.
Due to the course of the proceedings, I do not have to canvass all the evidence that was given in the proceedings.
The elements of the offences
Each offence in the criminal law is, of course, broken down into various elements which have to be proved beyond reasonable doubt.
So far as the remaining two counts of assault are concerned, each involves the following elements:
· that, in each case, Mr Schofield threatened or applied force against Trevor;
· that the threat or application of force was without Trevor’s consent; and
· that the threat or application of force was without any justification at law.
See Knight v R (1988) 35 A Crim R 314 at 316 and R v Gabriel (2004) 182 FLR 102 at 117-8; [130].
In order to assess the allegations, which are very general, the prosecution was required to and did particularise the incidents said to constitute the offence. The first incident constituting the first count of common assault was when Trevor was lying in his cot and it is alleged that Mr Schofield squeezed him so hard that his fingers went under his rib cage, which caused Trevor’s body to suffer and Trevor to vomit and cry in distress.
The second incident, which is said to have occurred a number of days after the first incident, involved Mr Schofield punching Trevor to his abdomen with a clenched fist while he was lying in his cot.
There is no doubt that, if these incidents occurred as alleged, this would constitute an assault on Trevor as alleged in the indictment.
I have to consider the evidence and, in order to convict Mr Schofield, be satisfied that these events occurred and be satisfied of that beyond reasonable doubt.
Evidence
Prosecution Evidence
(a) Tiffany Lee Harber
The mother of Trevor Schofield, Tiffany Lee Harber, gave evidence that she was a student at the Canberra College Carer’s Program conducted at Stirling College. It is a program for pregnant and parenting young people who are continuing their education. She was studying Years 11 and 12 courses of study and attended because she could take her baby to class. She stated that she had been diagnosed with Attention Deficit Hyperactivity Disorder and has a learning disability; as a result she was in receipt of a disability pension.
Her evidence was that she met Mr Schofield in about March 2010. The relationship developed quickly and, about two weeks later, he moved into her apartment. Their relationship was, she described, “really good at the start”.
Mr Schofield was nominated to the relevant Commonwealth authority as her disability carer.
Shortly after Mr Schofield moved into Ms Harber’s apartment, she realised that she was pregnant.
Sometime before Trevor was born, however, she asked Mr Schofield to move out. She said she “wanted to get Trevor into a routine”. She also said that Mr Schofield was “fine” at the thought of moving out.
Trevor was then born about seven weeks premature on 16 January 2011. He was released from hospital after about three weeks and they returned home. Mr Schofield visited once a day. After about nine weeks, he then moved back in.
At the time, Mr Schofield was not employed. Ms Harber said that he would simply remain in the house and not leave very often. He was not actively looking for work; he was in receipt of a carer’s pension.
Ms Harber said that, when he moved back in, however, the relationship started to go downhill and she and Mr Schofield began arguing a lot about Trevor. She said that Mr Schofield would call her names and they would argue about twice a day. Some of these arguments involved the question of whether Mr Schofield was Trevor’s father although Ms Harber said she knew that he was.
She then described a number of incidents. The first was, she said, about three or four weeks after Mr Schofield had moved back into her home. She said she saw Mr Schofield push on Trevor’s stomach while sitting next to him on the couch and Trevor fell off the couch. She said, rather surprisingly, that she saw Mr Schofield squeeze Trevor around the abdomen. She said he put his hands around his abdomen with the fingers at the back and the thumbs at the front and pushed his thumbs deeply into his stomach so that they impacted significantly, going up under his ribs. She gave a demonstration of what she said happened, however, which I described in the transcript as “You’ve got his fingers on the back and his thumbs on the front and you’re pushing the thumbs very hard into the stomach”.
Ms Harber then said, even more confusingly, that Trevor was in his cot. She said she was in her bedroom next door when she woke up hearing Trevor screaming and crying and when she went into his bedroom she saw what Mr Schofield was doing. This was particularised as one of the counts of common assault.
She said that she had seen Mr Schofield act in this way once before, when he pushed Trevor very hard in the stomach. She said it happened about a week earlier, where Mr Schofield pushed his fingers into Trevor’s stomach.
She said that, after the second occasion, she asked Mr Schofield why he was doing this but he did not answer. Nevertheless, in a number of the regular arguments they would have, he would say that he thought Trevor was not his son, but he did not say why he thought that.
Ms Harber said that she did not report these matters to the police or to the care and protection authorities as she was scared of Mr Schofield. She was not sure what he was capable of doing. It appears that, at that stage, she was pregnant with her daughter and she said that she was worried about what Mr Schofield might do to her.
She then described a further incident where Trevor was in his cot and she saw Mr Schofield punch him in the stomach just under the rib cage. This was particularised as the second count of common assault. She said there was a lot of force in the punch, it was a big punch and Trevor screamed. She said this occurred about 6:00 pm. This, she said, caused a bruise.
She described a fourth incident which she said was about a week later where she saw Mr Schofield pick Trevor up out of his cot and throw him about a metre into the cot with great force. She said it was “really a lot of force”. She said that she was in the kitchen near her bedroom getting Trevor’s bottle ready and could see into the bedroom.
Ms Harber said that she would take Trevor with her only to Canberra College and to Mr Schofield’s mother’s place. She said that she “tried to stay away from the house as long as I could for Trevor’s safety”. She then said, perhaps inconsistently, that she would also go out to see friends and “go to the mall and just hang out with them”. She also said that she stayed with her aunt for about three to four days.
She referred to seeing marks on Trevor’s body after the incidents. She said she mentioned this to Mr Schofield, but he just laughed.
She described the chronological order of the incidents as two incidents of squeezing, the punch and then to where Mr Schofield threw Trevor into the cot.
Trevor was then removed from her care by Care and Protection Services about a week, she said, after the incident where Mr Schofield threw Trevor into the cot.
She admitted that, when first spoken to by police, she said that she had no idea how the injuries to Trevor had occurred, but she said this was a lie. She said she was scared of what Mr Schofield would do if she told the truth.
Ms Harber was cross-examined. She agreed that she had not mentioned to anyone before giving evidence the occasion where she saw Mr Schofield squeezing Trevor’s stomach about a week before the first incident. She said that there was “so much to tell the police” that she forgot to mention some of it.
She was certain that, on each occasion, Mr Schofield’s thumbs had gone up under Trevor’s ribs at the front.
As to the incident where she said Mr Schofield punched Trevor, she agreed that it was a “full force punch into the cot”.
She was asked about an occasion when Trevor would not settle and she agreed that she and Mr Schofield called his mother who came over and settled him. In fact, Mrs Schofield had been at Trevor’s birth to support Ms Harber.
Ms Harber agreed that she and Mr Schofield were focussed on making sure that Trevor was doing well. They attended a medical practitioner on occasion and saw a paediatrician when concerned that Trevor was not putting on weight. She also saw maternal and child health nurses on about twelve occasions.
She said that, on 1 March 2011, she went to a refuge for mothers and babies, Karinya House, for further support.
She then commenced at the Canberra College Carers Program. A statement from a teacher of the program showed that she attended on nine occasions in March 2011, four occasions in April 2011 and six occasions in May 2011. Mr Schofield also attended with her on three of the occasions in March 2011 and then the four occasions in April 2011.
She described that, at the College, there was a room for the children and a parent was rostered to look after the children while the parents were studying. This allowed Ms Harber to have the one-on-one interaction with her teachers that she required for her education.
She agreed that she had initially told police that she was concerned that the injuries to Trevor may have occurred while he was in care at the program. She said she was concerned that an accident may happen or that someone might deliberately do something to Trevor. In fact, she mentioned to police a time when she thought that something may have happened because Trevor had “been crying non-stop”.
She also agreed that Mr Schofield would visit his brothers and cousin and that she had Trevor by herself quite a bit.
Ms Harber was also questioned further about the interview she initially gave to police.
She agreed that she told them that there were no problems with her relationship with Mr Schofield, though they had “little fights”. She agreed that she was asked by the police whether the relationship “[h]as ... always been good” and that when she answered “Yes”, she was telling the truth.
She also told police that she had no idea about the cause of the injuries to Trevor but said that, despite agreeing that it was important to tell the truth to the police, this answer was not the truth. She also denied to the police that there were any accidents involving Trevor but said she lied to police because she was scared of what Mr Schofield might do.
Ms Harber was also referred to proceedings involving Care and Protection when she sought to have Trevor returned to her care. In connection with these proceedings, she made an affidavit in which she deposed
After careful consideration the only two possible explanation for the injuries are as I see it are as I see it is in the once accident that Trevor was involved in when he was 1 month old in his bouncer. On this occasion Jamie’s puppy dog, Sammy, was pushed off the couch by a friend of Jamie’s and onto the bouncer. Sammy landed on Trevor’s chest. I then run over to the bouncer and picked Sammy up and placed her outside and then attended to Trevor who was crying as the altercation had woken him up from a sleep.
She later also deposed in the affidavit
There has been no physical violence between Jamie and myself during the relationship. I have also observed that Jamie has been very gentle in his handling of Trevor.
She agreed in cross-examination that Mr Schofield loved Trevor. Her affidavit was also entirely consistent with what she told police in her first interview.
She then said that she had also lied in this affidavit. She agreed that she knew that the affidavit was to be used in Court and that, in effect, she was lying to the Court.
She agreed that the affidavit was used in order to have Trevor returned to her care but that her application was not successful and Trevor has not been returned to her care. She agreed that both she and Mr Schofield were still under suspicion of having hurt Trevor.
Ms Harber said that she had read the report of Dr Judith Bragg, the medical practitioner who examined Trevor at the CARU. She had read that report before she made her affidavit and before she made disclosures to the police, alleging that Mr Schofield had hurt Trevor.
She agreed that her solicitor had advised her that if she was to have Trevor returned to her care, she needed to remove Mr Schofield “from the picture”. She agreed also that, if Mr Schofield was responsible for Trevor’s injuries, suspicion would be removed from her. She denied, however, that she made up the stories about the incidents.
She admitted that she had a history of depression and that, at times, she gets frustrated. She agreed that when she has anxiety attacks she bursts out in anger. Those bursts of anger, she agreed, were her frustration breaking out. She denied, however, that there were times when she had to walk out and leave Trevor with Mr Schofield as she needed to “go for a little bit of a walk and calm [herself] down”. She said this was because she was “doing it all by [herself]” and that Mr Schofield “wouldn’t help much at all” so that she was not getting much sleep. She agreed, too, that there were times when Mr Schofield was not at home.
Ms Harber was also asked questions about the incident when she said Trevor came off the couch. This incident was briefly mentioned earlier, but somehow in connection with an incident of squeezing referred to above (at [46]). She said that it happened when Trevor was about two months old. She said that Trevor was next to Mr Schofield on the couch. She had gone to the toilet and, when she came back, Trevor was on the floor and Mr Schofield had done nothing; he was simply sitting on the couch. She denied that, in fact, Mr Schofield had gone to the toilet and that she was the one sitting on the couch and that Trevor had fallen off when she went into the kitchen. She denied that, when he came back from the toilet, Mr Schofield picked Trevor up and comforted him. She agreed, however, that they called Mrs Schofield and also her mother who gave them some advice.
Ms Harber also agreed that, when she first told her mother about Mr Schofield squeezing Trevor, she said that he was pushing his fingers, not his thumbs, into the top of his stomach. She stressed that Trevor vomited up the contents of his bottle.
She also said that she did not mention any of this because she had been told not to do so by Mr Schofield’s family and maintained that when put to her that it was not true she said she had no doubt that Mrs Schofield knew that Mr Schofield had injured Trevor.
She was also certain that she told her mother when she first spoke to her on 13 July 2011 that Mr Schofield had punched Trevor and denied that she could be mistaken about that. She was also sure that she had told her about Mr Schofield throwing Trevor across the room and also about Mr Schofield shaking Trevor.
She admitted, however, that the first time she had actually told anyone about Mr Schofield shaking Trevor was in her evidence to the court. She explained
That’s the first time you’ve told anybody about shaking, isn’t it? Right now, today?---Yes, because there was a lot of stuff I had to tell the police, and it was hard to remember every little detail about what Jamie did do to Trevor.
But it’s not hard to remember that punch that you’ve described, is it?---No.
Well, the fact is you didn’t tell your mum anything about that punch, did you?---Yes, I did.
She also recalled speaking to her father but agreed that the first thing she said to him was a complaint that Mr Schofield was not giving her money. She then told him about Trevor falling off the couch but she agreed that, contrary to her earlier evidence, she said that when she came back from the bathroom, Mr Schofield was leaning over Trevor with his hands around him. She agreed that the earlier evidence was not correct.
It was put to her that Mrs Schofield had never told her not to report the injuries but she insisted that she had.
Ms Harber denied that she had not mentioned to her father that Mr Schofield had punched Trevor and said she also told him about Mr Schofield shaking Trevor and Mr Schofield throwing Trevor across the room.
She said that her father called the police and the police then called her on her mobile phone. The police first spoke to her mother and then to Ms Harber. She said that she had told the police on the phone that Ms Schofield had squeezed Trevor in the ribs and that Trevor had fallen from the couch while being looked after by Mr Schofield. When they came to see her, she told them that Mr Schofield had punched Trevor, that he had shaken him and that he had thrown him across the room. She denied that she was making up this evidence.
It was put to her that she had told the police something different about the incident when Trevor is said to have fallen off the couch. The evidence was
Well, you said this to the police, didn’t you? “Yes, I was in the bathroom. And I ran out and I picked Trevor up straight away and was like, ‘What are you doing? Can’t you see that Trevor’s crying? Pick him up’. And he’s like, “No’, so I picked him up”?---There was – like, I – because Jamie put him back down after shaking him, and then I picked Trevor back up.
So now you’re telling his Honour – and you appreciate that you’re under oath. You’ve got to tell the truth here?---Yes, I know this.
You’re telling his Honour that in fact when you came back in, he had him in his hands. He was shaking him. He then put him back down. And then you said ‘So why don’t you pick him up’ or something to that effect?---Yes.
Well, that’s an entirely new story, isn’t it?---No, it’s the – I know – it’s the truth. I remember what happened that day.
So what you told the police and what you told your mother isn’t the truth is it?---It is the truth.
The transcript of the telephone call to police was tendered. The date of the call was not identified but it appears from other evidence that it was around August 2012.
It records that Ms Harber’s mother makes the first contact and she mentions that her grandson Trevor has been taken from Ms Harber because of his multiple injuries. She said that Ms Harber had been told by Mr Schofield’s family not to tell police what actually happened.
Ms Harber then spoke to police explaining that she lied to them because she was told by Mr Schofield’s family that if she told police what happened, she would not be allowed to see Trevor again.
She then explained the incidents as follows:
T HARBER:With my son he’s got – he had eleven fractures.
ACT POLICING: Okay. And you found that out you did take him to the hospital did you?
T HARBER:Yeah, I took him to Calvary and we took him to Ginninderra Medical Centre as well because we thought he only had a virus.
ACT POLICING: So what caused the fractures?
T HARBER:It’s what his father has done to him, he’s actually – when Trevor was lying in his cot, he’s actually pushed on Trevor’s stomach and like Trevor’s brought up his whole bottle and everything so I think he might have done something to Trevor’s ribs when he was a baby.
ACT POLICING: Okay.
T HARBER:Yes. But I don’t know about – like because he had a fracture in his femur and his wrist, I don’t know how he got those two.
...
T HARBER:Yeah, I was in the bathroom and I ran out and picked Trevor up straight away and I was like, “What are you doing? Can’t you see that Trevor is crying, pick him up.” And he’s like, “No.” So I picked him up.
...
ACT POLICING: So you didn’t see – you don’t – you’re not sure what’s caused the fractures but you believe your ex-partner may have been involved somehow?
T HARBER:I know the ones in his ribs, how his father actually pushing on his stomach really hard.
ACT POLICING: Did you see him do it?
T HARBER:Yep. And I told him to stop and I grabbed Trevor and he was half like sometimes I wasn’t home because I’ve been involved into CC Cares and he might have it done then as well.
Ms Harber had earlier said that she had told the police in the telephone call about Mr Schofield punching Trevor, about Mr Schofield striking him and about him throwing Trevor across the room; indeed, she said, “I told them everything” but when it became clear that the record of the call did not record that, she suggested that, in fact, she had told them later in person.
Ms Harber said she spoke to Ms Tanya Saxvik, an officer of Care and Protection, on 16 July 2012. Her mother was present. She agreed that it was in this conversation that she first used the word “squeezing” to describe any action of Mr Schofield in relation to Trevor; she agreed that, up to that time, she had simply referred to “fingers to press into the stomach”.
Ms Harber then agreed that, when recounting to Ms Saxvik the incident when Trevor came off the couch, she did not mention anything about him being picked up, but she said she thought that she had mentioned that Mr Schofield had shaken Trevor and punched him and had thrown him across the room.
She also said that she had mentioned about Trevor being passed out of the window. This was an incident where she said that she had to pass Trevor out through a bathroom window of their unit to Shayla Holder, a neighbour.
She agreed that, when talking to Ms Saxvik, she said on more than one occasion “[w]hat I’m telling you is consistent with what the doctors say”. She acknowledged that she had closely read the report of the medical practitioner who examined Trevor when he was found to have been injured.
Ms Harber was then taken to her statement to police. She said she had read it carefully, line by line before signing it. She was satisfied that it included all the important information, including the punch. She said, however, she did not include the shaking because she “did forget a couple of things”. She said that she had “a bit of a mind blank at times”.
She was taken to an inconsistency where, contrary to her evidence, she had told police that when Mr Schofield squeezed Trevor in his cot it was his fingers and not his thumbs that went up into his ribs. Her demonstration at this point in the evidence was certainly not consistent with her earlier description nor with what she told the police.
Ms Harber was asked about the allegation that Mr Schofield punched Trevor and agreed that she told the police that this happened about a week after the incident with the squeezing or pushing in the stomach and up under the ribs.
She was then taken to her report to police of the incident when Trevor came off the couch; in it, she had stated that this was three days later and that it happened the day before Trevor was removed from her.
Her attention was directed to another incident, which was said to have occurred a couple of hours later, when a friend of Mr Schofield’s visited. She stated that the visitor had kicked Mr Schofield’s dog and it landed on Trevor.
It was suggested to her that this chronology was inconsistent with what she had earlier told her mother, namely that the pressing down incident and the incident where Trevor fell off the couch happened when Trevor was two months old, about two months before he was removed from her custody not, as the evidence now was being given, within a few weeks of that time.
She was also referred to her affidavit, to which I have referred above (at [71]) in which the incident with the dog falling onto Trevor was said to have happened when Trevor was a month old. Ms Harber’s answer was that there were two such incidents, which, she said, both happened in exactly the same way with exactly the same consequence. She denied that she had made up a second incident.
She agreed that she did not include in her statement to police anything about Mr Schofield throwing Trevor across the room, about her passing Trevor to Ms Holder out the bathroom window, about Mr Schofield shaking Trevor or about his thumbs pushing up into Trevor’s ribs.
She was asked about what she had told Ms Holder and said that she was sure that she had told her about Mr Schofield squeezing or pushing Trevor’s stomach while he was in the cot, but she said that she did not tell her anything else at the time.
It was suggested to her that she had not told the police or her mother about her passing Trevor out the bathroom window to Ms Holder, but she said she had told the police about it when they came to her house to interview her and she had also told her mother about it when she first spoke to her about these matters. She then agreed that she told her mother that it had happened on more than one occasion, denying that she could be mistaken.
Ms Harber was also referred to a new allegation she had made to the prosecutor the day before the trial. She agreed that she told the prosecutor that Mr Schofield had barricaded himself in a bedroom so he could be alone with Trevor. She agreed there were no locks on the doors, but that Mr Schofield had hold of the door. She agreed that she had not told anyone about the incident until she told the prosecutor. No suggestion was made by her as to why Mr Schofield did this, what happened to Trevor and, in any event, how Mr Schofield could do anything while holding the door. It seems an improbable incident.
She was taken again to the chronology of events and agreed that the incident of Mr Schofield barricading himself in the bedroom happened after the dog landed on Trevor, which happened a couple of hours after he had fallen from the couch.
It was put to Ms Harber a number of times that she was lying or inventing her evidence and she denied it. It was put to her that she was using her evidence as an attempt to recover custody of Trevor and, to do so, was “pointing the finger” at Mr Schofield. She denied that also.
In re-examination, Ms Harber said that Mrs Schofield had told her that if she told anyone of how Mr Schofield had injured Trevor, she would never see Trevor or her daughter again. She said that Mrs Schofield told her this just after Trevor was removed from her care. She said that this conversation scared her because she thought she could be stopped from seeing her children. She then said that Mrs Schofield said these words to her again when she was in hospital giving birth to her daughter on about Christmas Day 2011.
(b) Jan Marshall
The Deputy Principal at the Canberra College Carer’s Program, Jan Marshall, gave evidence, in addition to her statement which had been tendered. She explained how the Program was conducted. There were thirty to forty students and their parents in the Program.
She said that children brought to the program are never left unattended.
(c) Tanya Saxvik
Tanya Saxvik, a care worker in Care and Protection branch of the Community Services Directorate, then gave evidence.
She explained that she had become involved with Trevor and his family in July 2011. She met regularly with Ms Harber and Mr Schofield after Trevor was taken into foster care. She said Mr Schofield took the more active part in the discussions. Ms Harber would not generally speak but “would nod a lot”. She did not speak to Ms Harber except in the presence of Mr Schofield. Indeed, when she called Ms Harber on her mobile phone, Mr Schofield would answer.
On 16 July 2012, however, she had a meeting with Ms Harber without Mr Schofield being present at Ms Harber’s request. Ms Harber told her that she and Mr Schofield had parted ways. She also said that Mr Schofield had hurt Trevor. She said Ms Harber mentioned two occasions. The first was when Mr Schofield held Trevor between his arms and his chest and squeezed or pressed him into his chest. This was a very different description than that given in Ms Harber’s evidence and, from the medical evidence, would seem unlikely to do Trevor the kind of harm found on the medical examination.
The second incident mentioned was when, while she was in the bathroom, she heard a thud and came out to see Trevor lying on the floor in front of the couch. Ms Saxvik said that Ms Harber had told her that she said to Mr Schofield “Can you please stop him from falling off the lounge” but that Mr Schofield just grunted. She made no mention of Mr Schofield picking Trevor up or squeezing him. She also said that Ms Harber told her that she had been told by Mr Schofield’s parents not to tell anyone how the injuries to Trevor occurred.
In cross-examination, Ms Saxvik was asked about an interview she had with police which was recorded.
She agreed that she told police that Ms Harber said to her that what she was telling her was “consistent with what the doctor says could have happened”. She agreed that Ms Harber clearly had wanted her to know that what she was saying was consistent with the medical report.
Ms Saxvik said that Ms Harber had only told her about the two occasions referred to above; there was no mention, however, of Mr Schofield punching Trevor, of shaking Trevor, of throwing Trevor across the room or of passing him out of the window, despite Ms Harber’s evidence that she had told Ms Saxvik about these incidents.
(d) Christine Harber
Ms Harber’s mother, Ms Christine Harber then gave evidence. She described her occupation as a child care worker.
She said she did not see her daughter much at all in 2011 because, she said, Mr Schofield “wouldn’t allow it”. She said Mr Schofield told her that she was not allowed to see her after the birth of Trevor, at whose delivery she was not allowed to be present.
There were, however, some telephone conversations between mother and daughter in 2011.
She then gave evidence of Ms Harber telling her about the injuries to Trevor. She said this was in about August or September 2012. She said that Ms Harber told her that Mr Schofield had on a number of occasions “pushed down on Trevor’s stomach” and that she had asked him to stop but he did not.
She also said that Ms Harber told her of an occasion when Trevor was on the lounge but had fallen off.
She said Ms Harber did not tell her of any other incidents. This was not consistent with Ms Harber’s evidence.
Ms Christine Harber did not mention that her daughter had told her of the curious incident where Ms Harber said that she had handed Trevor to Ms Holder out through the unit’s bathroom window, despite Ms Harber telling me in her evidence that she was sure she had told her of the incident.
Ms Christine Harber said that her daughter had waited so long to tell her because she was frightened of Mr Schofield and his family, because they were going to seek custody of her children and ensure she had no access to them. She thought it was Mr Schofield’s mother, Mrs Schofield, who had threatened her in this way.
In cross-examination, Ms Christine Harber denied that it was Ms Harber who did not want her present at Trevor’s birth. She agreed that she did not like Mr Schofield, who had become her daughter’s carer in substitution for her.
Ms Christine Harber was taken to a transcript of an interview she had with police on 21 July 2012. She agreed that she told police that her daughter had told her that the injuries to Trevor had occurred when Trevor fell off the couch while Mr Schofield was next to him. She said that her daughter had not told her that Mr Schofield picked Trevor up; indeed, she said that she told her that he had done nothing at all.
As to the pushing, she told police that Mr Schofield had pushed with his fingers just about where Trevor’s diaphragm was, with the thumbs together and the fingers forward into the diaphragm area. She said her daughter did not mention anything about Trevor vomiting.
She also agreed that her daughter had told her that this happened when Trevor was two months old. She added, “I said it happened on numerous occasions”. There were inconsistencies between this evidence and the evidence of Ms Harber.
(e) Dr Judith Louise Bragg
Trevor was examined at the CARU on 25 May 2011 by Dr Judith Bragg, a medical practitioner who also gave evidence.
She found he was growing normally for his age and was alert and healthy. He had, however, a number of injuries:
· two one centimetre greenish-grey coloured bruises, two centimetres below the umbilicus on the right side of the abdomen;
· two friction burns below the left ear, one 1.2 centimetres in diameter 1.5 centimetres below the ear and the other 0.5 centimetres in diameter;
· a one centimetre superficial scratch under the left side of his chin;
· a very small 1mm long superficial ulceration on the vermilion border of the right upper lip.
She considered the bruises on the abdomen to be suspicious; accidental bruising of an infant not yet ambulatory was rare. The bruises had the appearance of pinch marks because of the configuration, shape and size. She postulated that the bruises could also have been caused by something like the end of a wooden spoon being bashed against the child but that a finger and thumb pinching the child would be the most obvious cause. She agreed, however, that the bruises could have been caused sequentially. She said such bruising would not occur with normal handling of a baby.
As a result of her examination, she ordered some x-rays (a skeletal survey), an MRI and a ultrasound of Trevor’s head. She also had an examination of the fundi under dilation by an ophthalmologist. These examinations disclosed a number of fractures. A follow-up scan confirmed the findings.
There were lateral fractures on the right on ribs four, five, six and seven and on the left on ribs three, four, five and six. Posteriorly, there were fractures on the right on ribs ten and eleven and on the left on ribs nine and ten. A paravertebral fracture of the left rib seven was also found.
Dr Bragg’s opinion was that such fractures could have resulted from a direct blow which would usually cause a double fracture, that is on two ribs. Fractured ribs are, she said, more likely to happen where the body is forced against a large object which is stationary, such as in a car accident.
A common mechanism causing fractures in children is when they are held around the chest with the thumbs to the front of the chest and the fingers at the back and they are compressed. The latter was her preferred conclusion because of the nature and site of the fractures. They were not consistent with an impact injury. She was unable to say how much force would have been needed to cause the fractures. She discounted the likely cause as a fall from a height and a low fall would be unlikely to cause the fractures. It appears that the fall from the couch is, thus, to be discounted.
She said that pressure applied by the fingers under the rib cage would not cause the fractures. Pressure on the chest, pushing down with considerable force could cause them, but only if the child was lying on a flat, hard surface; if the child was on a mattress, the force would have to be “significant”.
She said that pressure on the abdomen would not be likely to cause the fractures. She also excluded any congenital cause.
In cross-examination, Dr Bragg confirmed that, for the fractures, there would have to have been forces at the front and behind, though if the child was on his back and force came on the front, that was a possible cause. She agreed that the younger the child the less force needed to cause such fractures, though the bones are more elastic at an earlier age. That flexibility disappears with age and the rib bones become more brittle and more susceptible to fracture.
Dr Bragg also consulted regularly with Associate Professor Craig Munns as to whether there are any genetic or metabolic bone disorders that may be relevant. His opinion was not sought by her in this case but a report from him was prepared. It confirmed her opinion.
The report was tendered. Associate Professor Munns opined
· the fractures appeared to be of similar age;
· the most likely cause was the chest being compressed from behind;
· greater than normal force (as used with normal care) would have had to be used;
· the bones do not indicate an underlying bone fragility disorder.
Dr Bragg discounted the mechanism whereby Trevor was on his front and force applied to the back because, she said, there would be expected to be more paravertabral fractures.
Her opinion was that there were unexplained fractures that were indicative of chest compression which suggested deliberate infliction.
(f) Shayla Holder
A neighbour of Ms Harber, Shayla Holder, was called and gave evidence. She said that she knew both Ms Harber and Mr Schofield. She would have contact with Ms Harber three or four times a week from September 2009, when she moved into the same block of units where they lived.
She said that Ms Harber had told her of incidents where Mr Schofield was said to have harmed Trevor. She said that Ms Harber told her that Mr Schofield would shake Trevor at night or during the day when he would not go to sleep or when he would scream. She also said Ms Harber had told her of an occasion when Mr Schofield had, when sitting on the couch, thrown Trevor across the room. She also said that Ms Harber told her of an occasion when Mr Schofield and Trevor had been locked in a room.
She said that she was told these things on the occasion when Ms Harber was moving out of her unit. Mr Schofield had already departed and Ms Haber was moving into an apartment elsewhere in Canberra, near her mother. Ms Harber came to Ms Holder’s door. She said she was very nervous about making the disclosure. She acknowledged that Ms Harber was a person with whom it was difficult to maintain a conversation. She was aware of her learning disabilities. She said, however, that she had not known Ms Harber to be untruthful.
Ms Harber thought the conversation occurred in August or September 2011.
She said that after Ms Harber and Mr Schofield moved out she had no contact with them and she “wanted nothing to do with them”.
She also said that she had noticed bruises and markings on Trevor from time to time to his face and legs. When she asked about them, Ms Harber would only say to her that he fell over while sitting up or that he rolled onto something.
Ms Holder was cross-examined. It was put to her that Ms Harber moved out in 2012, but she could not recall that date precisely.
She agreed that what she had been told was that Mr Schofield would scream and strike Trevor while he was in the cot and would not stop and that, on one occasion, while Ms Harber was in the shower, Mr Schofield had thrown Trevor across the room because he would not stop crying. She said they were sitting on the couch at the time; her understanding was that it was in the living room.
Ms Harber was asked no questions and gave no evidence of occasions when Trevor had been handed out to her through the bathroom window of Ms Harber’s and Mr Schofield’s unit.
(g) Mark Harber
Ms Harber’s father, Mark Harber, gave evidence. A transcript of his interview with police was also tendered.
He said that, after Ms Harber had broken up with Mr Schofield, she phoned him and arranged to meet him. He said she was distressed and told him that Mr Schofield had hurt Trevor. She said there was “squeezing and there was a strike”. She told him that Mr Schofield was angry but she did not describe the “strike” in any more detail.
As to the squeezing, he said that Ms Harber told him that Mr Schofield had put his hands over Trevor’s chest. She told him that this happened in March or April of 2011. She told him that she did not report it earlier because she was scared of Mr Schofield and “the influence of Jamie’s family ... His mother was quite vindictive”. She told him that she was scared of Mr Schofield’s family, especially his mother because of their controlling and vindictive nature.
In cross-examination, Mr Harber was taken to his statement to police. His evidence was
Well, I’ll just see if you can recall this when I put the question to you. It was put to you – this is a police officer: ‘All right. Tell me everything about that. Tell me everything that she said during that phone call, if you can remember?’ ‘A. First of all she – it came down to that Jamie wasn’t giving her access to any of her money.’ Do you remember saying that?---I do remember saying that.
And the situation was that Jamie was a carer under the social security system, he was a Centrelink carer?---I suppose so, yes.
He agreed that the only incident that he told police about was as follows
And in the process of that, she said that, that she informed me that she had told Christine that Jamie had hurt Trevor because she’d walked in from going to the toilet and Trevor was on – on the lounge in her – in their flat when she went to the toilet and she could hear him, hear him sort of crying and screaming out. And she had sounded like a pain scream, so she came back out. The baby was on the floor and Jamie was leaning over him. And she – and she thought that Jamie may have – he may have had his hands around the baby.
He said he had told police “exactly” what Ms Harber had told him. He agreed that if there was no mention of a strike, she had not mentioned it and, similarly, if there was no mention of Mr Schofield striking Trevor then she had not mentioned it to him.
The transcript of his interview with police was tendered. In it he described how he was told Mr Schofield had picked up Trevor as follows
Yeah, well he – he [sic] said – he said he’s picked – picked up the baby up, you know, from showing that the hands are out and he’s wrapping them round the sort of the torso area and that you lift them up like that. So really, the baby’s left with no – the arms would be flying out and so would the legs.
Mm.
So there wouldn’t be – there would be no control, especially on the – on the neck area.
He also said
· Ms Harber told him that Mrs Schofield had told her not to say anything about Mr Schofield hurting Trevor;
· that Trevor has suffered broken ribs, a broken femur and a break above the wrist (though apart from the fractured ribs, no other breaks were reported by Dr Bragg);
· Mr Schofield was quite upset when Care and Protection removed Trevor from their care;
· He had seen Trevor from time to time and felt he was crying from pain and not, as he was told, from teething;
· Ms Harber and Mr Schofield “were genuinely concerned for Trevor’s welfare”;
· Mr Schofield has a temper and he saw him go into a rage at court one day;
· Mr Schofield seemed genuinely attached to Trevor; ‘he was probably a loving father’.
Defence Evidence
(a) Jamie Thomas Schofield
The accused, Mr Schofield gave evidence. He did not need to and his evidence is to be treated in the same way as any other evidence.
He said that there was, in fact, no issue about Trevor’s paternity. He said that he and Ms Harber came to an agreement about that. He admitted that, at first, he did not believe that Trevor was his biological son but that he and Ms Harber agreed that, regardless of who the father was, he was the male in the relationship and he “was going to [sic] the one dad that raised Trevor”. He agreed that subsequently it was resolved and that he was shown to be Trevor’s biological father.
He denied that there were regular arguments about Trevor’s paternity; he said that there was only ever one argument.
He said that his role began at birth when he was present and he said he did his best to help raise him. He “did night shifts ... anything that was needed to help raise him”.
He confirmed that his mother was present at Trevor’s birth.
He described Trevor as “a very happy smiley baby”. He generally had no trouble settling Trevor, though on one occasion he had difficulty. He said that, on this occasion, he was getting no help from Ms Harber and so he rang his mother who came over and settled him.
Mr Schofield said that when Trevor was released from hospital, he was working with a transport company “off the books to try and place [himself] a job”. As a result, he would be away from home, leaving Trevor with Ms Harber two or three times a week.
He denied that it was possible for Trevor to have been passed out of the bathroom window of their unit as claimed; it had “glazed glass” with a winding system that was broken. It left too little space for Trevor to have been passed through it.
He denied that there was ever an occasion when Ms Harber was in the bathroom with Trevor while he was banging on the door.
As to the incident where Trevor fell off the couch, he said that he saw Ms Harber put Trevor on the couch as he was going to the bathroom. As he walked out of the bathroom, he heard Trevor crying and he rushed over to where he was on the floor, picked him up and rang his mother to get advice as to how to settle him.
He also stated that there was an incident with his dog, but only one of which he was aware. He explained that the dog, which was smaller than Trevor, was his and it was being a bit skittish and became too friendly with his friend, who kicked it and it landed on Trevor in his bouncer.
He was asked about the report Ms Harber made to police and said that, a fortnight before, she had spoken to her solicitor who, she told him, had said that her best chance of having Trevor returned to her custody was if she ended her relationship with him.
He denied ever hurting Trevor, dropping him, pushing his fingers under his ribs, squeezing him, pinching him, shaking him, screaming at him, throwing him across the room or at all or seeing anyone else hurt Trevor.
He also denied threatening Ms Harber that she should not report anything about Trevor being harmed.
In cross-examination, Mr Schofield agreed that there was discussion about Trevor’s paternity but denied that it was discussed more than once and then only at the beginning of his relationship with Ms Harber, when she told him she was pregnant. He agreed that Trevor was subject to a paternity test which Ms Harber had organised to put the issue to rest.
Mr Schofield denied that the issue of Trevor’s paternity was a bone of contention between Ms Harber and himself, nor a source of constant contention. He denied that he often thought that he was raising another man’s child nor that it caused him anger or resentment.
He agreed that he often fed and changed Trevor; every night he did the night shifts but not during the day. He could do it once a day. He denied seeing the bruises noted by Dr Bragg. He said that he had no idea where they came from.
He denied hurting Trevor in any of the ways alleged. He denied seeing him as a burden. He denied telling Ms Harber not to tell the police or care and protection about Trevor’s injuries.
He denied being the dominant person in the relationship. He said that he answered Ms Harber’s phone instead of her because he had no phone and that they had agreed that calls for him would be made to her phone.
(b) Rosemary Schofield
Mr Schofield’s mother, Rosemary Schofield (Mrs Schofield), gave evidence.
She explained that she was at Trevor’s birth because both Ms Harber and her son asked her to be there. After the birth, until Trevor was released from hospital, both of them stayed with her regularly.
She said that after Trevor’s release from hospital, she had quite a bit of contact with the family, three or four times a week, initiated by both Ms Harber and Mr Schofield. She described some difficulties that Ms Harber had with parenting as she was unsure of what she was doing and she helped her.
She referred to a particular occasion when she was called at about 11:00 pm. Mr Schofield rang to say that they could not settle Trevor. She went over to their unit and helped them settle him down.
She also referred to the call made by Mr Schofield about Trevor falling off the couch. She said that he had told her that Ms Harber had put Trevor on the couch and walked away and that Trevor rolled off the couch. She said that, with her first aid experience, she managed to provide advice about how they should deal with the issue.
She said she had not seen Ms Harber or Mr Schofield do anything to harm Trevor. The first she heard of the harm done to Trevor was when Mr Schofield was charged, which was after Ms Harber had spoken to police. She denied telling Ms Harber not to say anything about Mr Schofield having caused Trevor’s injuries and had made no threat to her.
Mrs Schofield was cross-examined. She agreed that she loved her son, Mr Schofield, and cared for him deeply. She agreed that she also loved her grandson, Trevor; he was one of six grandchildren she had.
She agreed it was devastating when she heard of the allegations of abuse and that Trevor had been removed from Ms Harber’s care. She agreed, too, that it brought some shame and embarrassment to the family.
She agreed that, if Ms Harber told police that Mr Schofield had caused the injuries to Trevor, he would be in “a world of trouble”.
She also agreed that Ms Harber had learning difficulties and was, in the prosecutor’s words, “pretty simple”. She denied, however, that she thought of her as “a bit of a liability”. She also denied that she thought it important that, if she was going to see her grandson, Ms Harber should not talk to Care and Protection or the police. She further denied that she had threatened Ms Harber that, if she “pointed the finger” at Mr Schofield, she would apply to be a kinship carer of Trevor and prevent Ms Harber from seeing him again.
Consideration of the evidence
Given the issues now before the Court, I agree with the Crown’s submissions that the medical evidence loses much of its force, although it is still relevant that the bruise to Trevor’s torso was, in Dr Bragg’s opinion, caused by a pinch, a matter that was not particularised, nor the subject of any evidence that Mr Schofield had caused it.
I also accept the evidence of Ms Marshall, which also leads me to the same conclusion as the Crown, that the injuries to Trevor were almost certainly not inflicted while he was at the Canberra College Carers Program.
The Crown also accepted that the Crown case effectively rises or falls on the evidence of Ms Harber, which is disputed by Mr Schofield.
In the first place, I must not proceed as if there were a choice between the evidence of Ms Harber and that of Mr Schofield. Even if I were to reject the evidence of Mr Schofield, I must not convict him unless I am satisfied that the Crown has proved its case beyond reasonable doubt. See Liberato v The Queen (1985) 159 CLR 507 at 515.
So far as the evidence of Ms Harber is concerned, it seems to me that the strong reliance of the Crown on her evidence requires me to scrutinise it with great care and to consider whether there is any corroboration for it, not because that is required, but because of the need to be convinced of its truth and accuracy before relying on it to convict Mr Schofield. See, though is a somewhat different context, R v Murray (1987) 11 NSWLR 12 at 19.
Indeed, the Crown did not ask me to accept all of Ms Harber’s evidence and, indeed, I could not do so as there were not only internal inconsistencies in it, but there were inconsistencies with the evidence of other witnesses and facts that I can accept.
Nevertheless, the Crown submitted that Ms Harber had been consistent on the central allegations, namely that Mr Schofield applied force to Trevor’s stomach area while he was in his cot. That she told her mother, her father, the police and Ms Saxvik. This, it was submitted, bolstered her credibility.
That is correct, however, only to an extent. That is to say, she has been somewhat consistent since she started to blame Mr Schofield for harming Trevor. Prior to that she made no such statements and, indeed, exonerated Mr Schofield in terms that were consistent with her father’s assessment of Mr Schofield’s attachment to and care of Trevor.
She has also been consistent, it was submitted, as to why she initially lied.
In her evidence, she said she was frightened of Mr Schofield. This implied some violence, though that was never stated. To others, however, she referred to being frightened of Mrs Schofield, who, she said was going to take steps to stop her from seeing Trevor again. It was not as consistent an explanation as submitted.
What then becomes important is the point at which her story changed, namely when Mr Schofield and she separated and when she had been advised that his continued association with her would be detrimental to her recovering custody and care of Trevor. Until that time, there was no consistency with the evidence she gave in Court at all.
While her separation from Mr Schofield may be seen as the time when Ms Harber was free of the threats that she says restrained her from implicating Mr Schofield, that is not logically so for the more common reason she gave for not initially telling that Mr Schofield had hurt Trevor. It was not physical or other threats which required Mr Schofield’s personal presence that were made; the threat was to ensure she did not have access to or regain custody of Trevor. That was not dependent on Mr Schofield’s presence with her nor was released by their separation.
This fear, she said, came from Mrs Schofield and Mr Schofield’s family seeking kinship care of Trevor; hence his departure did not completely explain why Ms Harber, fearful of what his family may do to prevent her having Trevor returned to her care, would, when he left, cease to be afraid of his family.
It is further relevant that Mrs Schofield, who gave evidence of substantial contact with Ms Harber and Trevor, whom she appears to have treated as a favoured grandson, and, indeed, with Ms Harber when she said was “bonding” quite well with her as a mother-in-law, said to me in evidence that she loved Trevor and that was not questioned by the Crown. She said that the first she heard about the allegations that Mr Schofield had harmed Trevor was on the night that he was charged with the offences. She was not challenged on that in cross-examination. This was, of course, after Ms Harber had made the allegations to police that Mr Schofield had hurt Trevor.
If I accept Mrs Schofield’s evidence, and it is not at all clear that there is a basis for me not to do so, then Ms Harber’s explanation for not speaking out earlier disappears.
This raises the issue of motive. It was clear that both Ms Harber and Mr Schofield were clearly under suspicion of harming Trevor; on the evidence one or both of them must almost certainly have been responsible. Both had opportunity.
It was submitted that Mr Schofield had motive. He agreed that he initially doubted his paternity of Trevor. It was suggested to him that this was a significant issue; it was put to him that there were a number of arguments about that issue, that it was a source of constant contention in his relationship with Ms Harber, that he would be “saddled with the very hefty obligation of raising a child until he was eighteen when he’s not [his]” and that this caused anger and resentment.
Mr Schofield denied this. It was contrary to the evidence in the affidavit made for the Care and Protection proceedings by Ms Harber, it was contrary to other statements made in the earliest interview between police and Ms Harber and it was contrary to the evidence of his mother.
On the other hand, Ms Harber agreed that there were times when she was frustrated with Trevor, that she could, when frustrated, become angry and that she would have to leave the house to calm down.
It was submitted by the Crown that Ms Harber had no reason to give perjured evidence. The fact is, however, that she had inevitably given perjured evidence: either she lied in her affidavit, which was perjury, or she lied in court, which was perjury. It was submitted by Mr Hopkins, however, that she did have such a reason: if Mr Schofield was responsible and alone responsible for the harm done to Trevor, then she had a greater chance of recovering care of Trevor. It was submitted by the Crown that this was no motive for she had not at that stage had Trevor returned to her care. By the same token, Mr Schofield had not been convicted and so no finding of his responsibility had been confirmed.
It was submitted by the Crown that there was a “common sense” inference that Ms Harber must have known that the accusation was not going to secure Trevor’s return to her care. That, however, was never put to Ms Harber; there was simply no evidence that this was so. Ms Saxvik was not asked about it, Ms Harber was not asked about it, even Mrs Christine Harber, a child care worker herself, was not asked about it.
The Crown also submitted that Mr Schofield played a dominant role in the relationship. That was inevitable, given Ms Harber’s disabilities. After Mr Schofield separated from Ms Harber, she re-established a relationship with her own mother, who appeared to me also to be a strong character who would have provided her with the support and advice formerly provided by Mrs Schofield.
I am also concerned that the evidence to support the punch to Trevor’s stomach was unhelpful. The medical evidence was that the bruise was most likely caused by a pinch, not a punch. There was no evidence of Mr Schofield pinching Trevor. Similarly, there were multiple fractures of Trevor’s ribs, but no evidence of any actions by Mr Schofield that were consistent with the mechanism described by Dr Bragg for that to have occurred.
I accept that, on Dr Bragg’s evidence, a punch to the chest may, if hard enough, have caused fractures, but Ms Harber was clear that the punch was to the stomach. For the reasons set out in R v Schofield [2013] ACTSC 248, I do not accept that this meant Trevor’s chest.
The motive suggested is, as conceded by the Crown, not a strong one, namely that Mr Schofield resisted bringing up some other man’s child. Mr Schofield, however, did know from the paternity test that he was the father. Neither party explored when that test was conducted, but it seems unlikely that it was only available in the last few weeks before Trevor was removed from their care and this is the time frame when, at least on the most recent chronology given by Ms Harber, the injuries were caused.
Ms Harber’s evidence had, as the Crown acknowledged, some problems. Regrettably, they may have stemmed from her disabilities, but I have to do my best to assess the evidence she gave, making what due allowance I can that is, nevertheless, fair to Mr Schofield.
Her evidence was subject to careful scrutiny and analysis by Mr Hopkins. He identified each incident and submitted that they were redolent with inconsistencies and improbabilities.
As to the first incident, the account was implausible for there was said to be no “trigger” that would result in the assault. Trevor was said, on one version, to have been asleep and Mr Schofield is said to have pushed his hands into his stomach and his fingers up beneath his ribs. There is an implausibility in this, re-inforced by the difficulties that Ms Harber had in showing how it was done, apparently trying unsuccessfully to make the demonstration consistent with the evidence and medical reports.
As to the punch, it was again said to have been inflicted when Trevor was asleep. To do so, where Mr Schofield was said at the time to be watching television, and he just got up walked into the room of his sleeping son and punched him while he is asleep; that is a manifestation of evil that would require very clear evidence to be plausible.
The incident where Trevor is said to have been thrown was again where he was said to be asleep and that Mr Schofield walked into the room for no reason, picked the child up and threw him with significant force into the cot. Again, it is hardly a plausible scenario without imputing in Mr Schofield a significant unprovoked malice which needs clear evidence before acceptance.
This incident had been quite differently described by Ms Harber to Ms Holder. The evidence of Ms Holder was that Trevor had been “thrown across the room”, an event that one would think would result in very serious if not life-threatening injuries, none of which, such as fractures to Trevor’s skull, legs or arms, were identified by Dr Bragg. Further, the incident was said to Ms Holder to have occurred in the living room and not in the bedroom as she said to me.
In cross-examination, it became clear that Ms Harber had difficulty in making a coherent version of the events. The core of some of the incidents were clear, but as she was challenged, surrounding events became less clear and often inconsistent or changed. A good example was the account of the incident with the dog, kicked to land on Trevor in his bouncer. That story was accepted by Mr Schofield, but when challenged, Ms Harber suddenly came up with another occasion when the same incident occurred.
The events were unfolding in her evidence all the time with a fluidity that was strongly suggestive of versions being created to respond to questions rather than being remembered facts.
I note that, by the time Ms Harber gave her version of the events to police which implicated Mr Schofield, she had had access to the report of Dr Bragg.
It is also clear that Ms Harber told me in evidence that she had told to her mother, her father, to Ms Saxvik and to the police of events that she had not, in fact, told them. Indeed, curiously, some of the more serious incidents were not initially mentioned at all. That undermines her credibility.
Her account of the incident where Trevor fell off the couch included inconsistencies in her own evidence as well as with the other accounts that she gave.
Again, the allegation that Mr Schofield squeezed Trevor was quite inconsistent with the medical evidence and what was described by Ms Saxvik and to Mr Harber and was also different from the evidence given before me.
Ms Harber also gave evidence of an at least an odd event of Trevor having to be passed out through the bathroom window to Ms Holder, yet Ms Holder gave no such evidence and Mr Schofield, unchallenged, said that the situation with the window made that impossible.
I had serious reservations about Ms Harber’s evidence, for much of the reasons that have been rehearsed already. It was clear that she was suggestible. That made her evidence problematic from the start. It became clear that she embellished her evidence and that can be seen in the way her story came out.
Her complaint to her mother was that Mr Schofield “pushed down on Trevor’s stomach” and that while Mr Schofield was sitting on the couch, Trevor fell off.
Her complaint to Ms Holder was that when Trevor would not go to sleep during the day, Mr Schofield would shake him and on occasion when Mr Schofield was sitting on the couch and he “had thrown Trevor across the room”.
Her complaint to her father was that Mr Schofield had squeezed the baby and “there was a strike”. The squeezing was described in a way that was quite different from the description Dr Bragg gave of a squeeze likely to fracture a baby’s ribs and Dr Bragg was not asked about this kind of squeeze.
Her complaint to Ms Saxvik was of a squeeze of the same kind as described to her father and of the incident where she said that Mr Schofield was sitting on the couch when Trevor fell off.
Her initial complaint to police was that Mr Schofield pushed Trevor on the stomach while he was in his cot and he vomited his bottle and that Trevor fell off the couch while Mr Schofield was sitting next to him.
In fact, contrary to the Crown’s submissions, there was little consistency, save for the incident where Trevor fell off the couch. That was, clearly, not the subject of a charge. It was, also, an occasion which Mr Schofield said happened in the reverse way, namely that Ms Harber was on the couch and he was in the bathroom when Trevor fell off the couch.
Having carefully considered the evidence of all the witnesses, however, I am not prepared to reject the evidence of Mr Schofield.
He gave his evidence clearly and without prevarication or embellishment. It appeared to me he was trying to tell the truth. His evidence was to a certain extent corroborated. His mother’s evidence, which I also do not discount, did so.
Other evidence corroborated his evidence also. Mr Harber’s evidence gave some corroboration to it. Of course, the original police statement and affidavit of Ms Harber was corroborative, though she now says that these were lies.
I am satisfied that Mrs Christine Harber, Ms Saxvik and Mr Harber were all witnesses of truth and the inconsistency between the evidence they gave and that of Ms Harber on a number of points was troubling and undermined Ms Harber’s evidence and its reliability.
I have a reasonable doubt as to whether Ms Harber’s account of the events said to found the two charges against Mr Schofield is true and accurate. I am not convinced that Mr Schofield’s account can be rejected.
Accordingly, I have a reasonable doubt as to whether Mr Schofield assaulted his son, Trevor. He must be acquitted of both charges.
I certify that the preceding two hundred and forty-three (243) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 27 June 2014
Counsel for the Crown: Mr A Williamson
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr A Hopkins
Solicitor for the defendant: Darryl Perkins Solicitors
Date of hearing: 20 and 21 November 2013
Date of judgment: 27 June 2014
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