Criminal law - Murder - Elements of offence - Causation - Whether accident - Intoxication - Sexual assault - Meaning of de facto - Failure to provide necessaries of life

Legislation:

Criminal Code (WA), s 23, s 261, s 279, s 329

Result:

Guilty murder
Guilty sexual assault

Category: B

Representation:

Counsel:

Prosecution : Ms A L Forrester & Ms A Ghattoora
Defence: Mr E J Myers

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defence: E J Myers

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

Axford v The Queen (Unreported; WASC, Library No 980200; 20 April 1998)
Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334
Campbell v The Queen (1981) WAR 286
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Coates v The State of Western Australia [2009] WASCA 142
Edwards v The Queen (1993) 178 CLR 193
Heaton v The State of Western Australia [2013] WASCA 207
Jemielita (1995) 81 A Crim R 409
Jones v United States of America 308 F 2d 307 (1962)
Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v MacDonald (1904) St R Qd 151
R v Ping [2005] QCA 472; (2006) 2 Qd R 69
R v Taiters (1997) 1 Qd R 333
R v Taktak (1988) 14 NSWLR 226
Royall v The Queen (1991) 172 CLR 378
Willmot v The Queen [No 2] (1985) 2 Qd R 413
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91

TABLE OF CONTENTS

The charges and the result
The requirement for reasons explaining the result
The assessment of credibility
The overarching principles of law

The presumption of innocence
The burden of proof
The standard of proof

Principles relating to circumstantial evidence
Lies as evidence of guilt

Homicide

Causation

First route - A contribution to the result
Second route - failure to provide the necessaries of life

Unlawfulness
Intention - additional element to the crime of murder
Intention is a statement of mind and as a fact capable of being proved like any other fact
Witnesses - their roles in the events and investigation

Broome

Tamica Anne Mullaley
Edward James Mullaley
Mervyn Kenneth Douglas Bell
Gerald Arron Lyndon
Amey Jane McKinlay
Shimona Trinette Hill
Whitney Michelle Hannivig‑Jones
Rosslyn Michelle Dinah
Chantelle Dinah
Tracey Melissa Gilchrist
Kimberley Jade Zanik
Johnene Helena Crowhurst
Michael Lee Grima

Mullewa

Serina Ann Dershow

Pardoo Roadhouse

Ian Christopher Badger
Janet Lindsay Robb
Malcolm Gary Gilbert
Robert Allan Harvey

Great Northern Highway

Ian Thompson
Ray James Brown
Garry Frederick Plautz

Karratha

Mark Bonython Blewett
Brock McKay
Gregory Peter Atkins
Dayle Louise Lord
Barry John James Harris

Miaree Pool

Clayton Gregory Brown
Joshua Douglas Marmion

Fortescue Roadhouse, Great Northern Highway

Amanda Lee Black
Ann Marie Howell
Gavin Ross Duff
Peter Joseph Erpen
Graham Gerald Williams
Gary Verdun Harris
Kyle Mark Altadonna

Operational officers

Robert Dennis McIntosh
Thomas Alexander Bateman
Grant Andrew Wiltshire
Jeramy Michael Davies
Gregory James Cunningham
Laura Emily Campbell
Paul Michael Carrall
Adrian Lee Richards
Jason Mark Bylund
Grant Alan Smith

Forensic evidence

Constable David Massey
Constable Kirstina Alexandra Stewart
Constable Darren Keith Harston
Neil Harrison
Senior Constable Greg Stuart Ferguson
Ross Hedley
Rikki Lee Smith
Stephen William Stingemore
Peter Andrew Collins

Medical witnesses

Dr Clive Trevor Cooke
Dr Victoria Ann Fabian
Dr Suzanne Rea
Dr Louise Elizabeth Houliston
Dr John Millar Napier Hilton
Dr Scott Claxton

The LandCruiser BM 23756
Broome - 19 March 2013

Socialising at Gerald's house
An argument develops
The visit to Whitney Hannivig‑Jones
The accused's assault on Tamica Mullaley
The police arrive at the Gilchrist house
The accused picks up his bag

The accused steals petrol at the Pardoo Roadhouse
The accused stops at Karratha
Miaree Pool
Fortescue River
The Fortescue River Roadhouse
The accused is taken into custody
The accused is told of the death
The accused is interviewed
The investigation commences
The expert evidence about the deceased's condition

The medical witnesses

A catalogue of injuries

The injuries - an overview
CC Injury 1.1 - Exhibit 19.6 - 19.8

Dr Cooke
Dr Houliston

CC Injury 1.2

Dr Cooke
Dr Houliston

CC Injury 1.3

Dr Cooke
Dr Houliston

CC Injury 1.5

Dr Cooke
Dr Houliston

CC Injury 1.6

Dr Cooke

CC Injury 1.7

Dr Cooke

CC Injury 1.8

Dr Cooke
Dr Houliston
Dr Rea

CC Injury 1.9

Dr Cooke
Dr Houliston

CC Injury 1.10

Dr Cooke
Dr Houliston

CC Injury 1.11

Dr Cooke
Dr Houliston

CC Injury 1.12

Dr Cooke
Dr Rea

CC Injury 1.13

Dr Cooke

CC Injury 1.14

Dr Cooke
Dr Houliston
Dr Rea

CC Injury 1.15

Dr Cooke
Dr Houliston
Dr Rea

CC Injury 2.1

Dr Cooke
Dr Houliston

CC Injury 2.2

Dr Cook
Dr Hilton

CC Injury 3.1

Dr Cooke
Dr Rea
Dr Hilton

CC Injury 3.2

Dr Cooke
Dr Rea
Dr Hilton

CC Injury 3.3

Dr Cooke

CC Injury 3.4

Dr Cooke

CC Injury 3.5

Dr Cooke

CC Injury 4A.1

Dr Cooke

CC Injury 4A.1

Dr Cooke

CC Injury 4A.2

Dr Cooke
Dr Rea
Dr Hilton

CC Injury 4A.3

Dr Cooke
Dr Rea
Dr Hilton

CC Injury 4A.4

Dr Cooke

CC Injury 4A.5

Dr Cooke
Dr Rea

CC Injury 4A.5

Dr Cooke
Dr Hilton

CC Injury 4A.6

Dr Cooke
Dr Hilton

CC Injury 4A.7

Dr Cooke
Dr Rea
Dr Hilton

CC Injury 4A.8

Dr Cooke

CC Injury 4B.1

Dr Cooke
Dr Rea
Dr Hilton

CC Injury 4B.2

Dr Cooke
Dr Rea
Dr Hilton

CC Injury 4B.3

Dr Cooke
Dr Houliston
Dr Rea
Dr Hilton

CC Injury 4B.4

Dr Cooke

CC Injury 4B.5

Dr Cooke
Dr Houliston
Dr Rea
Dr Hilton

CC Injury 5.1

Dr Cooke

CC Injury 5.2

Dr Cooke

CC Injury 5.3

Dr Cooke

CC Injury 5.4

Dr Cooke
Dr Houliston

CC Injury 6.1 - Injuries to the penis and scrotum

Dr Cooke
Dr Hilton

CC Injury 6.2

Dr Cooke
Dr Houliston
Dr Hilton

CC Injury 7.1

Dr Cooke
Dr Hilton

CC Injury 7.2

Dr Cooke

CC Injury 7.3

Dr Cooke

CC Injury 7.4

Dr Cooke
Dr Houliston
Dr Hilton

CC Injury Series 8

Dr Cooke

CC Injury 8.1

Dr Cooke
Dr Houliston
Dr Hilton

CC Injury 8.2

Dr Cooke
Dr Hilton

CC Injury 8.3

Dr Cooke
Dr Houliston
Dr Rea
Dr Hilton

CC Injury 8.4

Dr Cooke
Dr Houliston
Dr Rea
Dr Hilton

CC Injury 8.5

Dr Cooke
Dr Houliston
Dr Rea
Dr Hilton

CC Injury 8.6

Dr Cooke
Dr Houliston
Dr Rea
Dr Hilton

CC Injury 8.7

Dr Cooke
Dr Rea
Dr Hilton

CC Injury 8.8

Dr Cooke

CC Injury 9.1

Dr Cooke
Dr Rea

CC Injury 9.2

Dr Cooke

CC Injury 9.3

Dr Cooke

CC Injury 9.4

Dr Cooke
Dr Rea

CC Injury 9.5

Dr Cooke

The spiral fractures

Dr Cooke
Dr Houliston

Other findings on post-mortem examination
Cause of death

Cross-examination

Dr Louise Houliston (ts 828)
A fall from a motor vehicle

Dr Houliston
Dr Hilton

Dr Suzanne Rea (ts 758)

Difference between contact burns and scald type injuries
Burn healing
Totality of injuries
The nature of a burn injury
Injuries likely to endanger life
Differentiating between abrasions and contact burns
Extensiveness of the burn
Effect of injury on child

Dr Victoria Ann Fabian (ts 664)
Other matters

Ants
Hot water

The effect of lack of sleep
The accused is interviewed by police

The accused's account of the events at Fortescue River
How the injuries to the deceased occurred
Account of the altercation with Ms Mullaley
Further account of the altercation
Going to Whitney's house
Altercation with Ms Mullaley
The decision to leave Broome
The handover of the deceased to the accused
The accused's account of Ms Mullaley handing over the deceased
The deceased's fall from the LandCruiser
When the accused saw the injuries

Clothes
The deceased being thrown from the vehicle
The door did not come open earlier
Why the deceased was not taken to hospital
The accused's observation of injuries
A further account of Ms Mullaley handing over the deceased
Multiple injuries
Stopping between Pardoo and Karratha
Events at Karratha

Dampier
Getting directions in Karratha
Events at Miaree Pool
Swimming in the Fortescue River
Picking up clothes from the house
Meeting Ms Mullaley on the road
Confronted with the fact that Ms Mullaley was in police custody
Burns on the chest
The accused's denial of murder

The accused had a motive to severely injure the deceased
'They don't know what I am capable of'

Conduct
The accused's account of accidental injuries is rejected
The alleged burns
A second lie
The accused caused the injuries
The accused's explanation is rejected
The consequences of rejection of the accused's account
The anal injuries
The inflicted injuries were a substantial cause of death
The accused's intention

Intoxication
Intention to kill
Intention to do life threatening injury
Sexual assault

McKECHNIE J: Charles Alan William Edward Derschow‑Mullaley, known to all as 'Charlie' or 'Charlie Boy', was 10 months old when he was brought into the Fortescue Roadhouse on a hot afternoon in March 2013 by Mervyn Kenneth Douglas Bell. He was dead. He had many injuries from the top of his head to the soles of his feet. How he came by those injuries and how he came to die has been the principal subject of this trial.
The emotive nature of the circumstances and the graphic detail of some of the evidence was such that an order was made that the trial be conducted before a judge sitting without a jury.
Emotion and prejudice have no part to play in the criminal law. They are natural emotions but unsure guides as to where the truth lies. Acknowledging as I do that Charlie Boy was a much loved healthy infant on the verge of toddling does not assist in the task of fact finding which must be conducted clinically and dispassionately. Therefore I shall now refer to him as 'the deceased'. So also will I refer to Mr Bell as 'the accused'. This is a standard term in criminal trials and implies nothing about his status as a person presumed innocent until proven guilty.

The charges and the result

The accused is charged:
(1)On 20 March 2013 at a place unknown in Western Australia Mervyn Kenneth Douglas Bell murdered Charles Alan William Edward Derschow-Mullaley.
(2)On or about 20 March 2013 at a place unknown in Western Australia Mervyn Kenneth Douglas Bell sexually penetrated Charles Alan William Edward Derschow-Mullaley, a child whom he then well knew to be his de facto child, by penetrating his anus with an unknown object.
And that Charles Alan William Edward Derschow-Mullaley was under the age of 16 years.
On the charge of murder I find the accused: Guilty
On the charge of sexual assault I find the accused: Guilty
I enter judgment in accordance with those findings.

The requirement for reasons explaining the result

A jury is required to return a verdict if it is able to achieve unanimity. A jury is not required to provide reasons for its verdict.
A judge is required to set out the principles of law that have been applied and the findings of the fact that have been made: Criminal Procedure Act 2004 (WA) s 120.
Reaching judgment is an evolving process. Testimonies of witnesses are absorbed and initial impressions formed. These initial impressions are then subjected to analysis and comparison with other testimony and physical evidence. Initial impressions may be altered as the trial proceeds and more evidence becomes available.
When the trial has finished a judge embarks upon a reflective consideration. Principles of law are identified or revisited and the evidence evaluated against these principles. The submissions of counsel are important in highlighting their respective cases and are given careful analysis.
A jury has the inestimable advantage of discussion and sharing of views and opinions. Twelve people can share with each other their impressions and views, acknowledge contrary opinions, and alter their stance accordingly.
A judge has no such equivalent but works in the solitude of chambers. A judge can discuss a case with no‑one lest the judge be subject to unconscious influence. For that, among other reasons, it is important for a judge to take time to reflect on the evidence and to test possible theories and assumptions against the framework of legal principles.
The physical act of writing and explaining the reasons for a decision also concentrates the mind. Errors of reasoning may be identified and corrected.

The assessment of credibility

The prosecution carries the burden of proving its case beyond reasonable doubt. The accused carries no evidential burden. The prosecution must negative any exculpatory matter beyond reasonable doubt.
Many facts are not contested by the accused. When they are uncontroversial, it makes the fact‑finding task easier but the requirement of satisfaction of the prosecution case beyond reasonable doubt remains.
For conciseness of expression I will generally use the words 'I am satisfied' to indicate a satisfaction in my mind beyond reasonable doubt. I shall use the words 'I am not satisfied' to indicate that the prosecution has failed to satisfy me beyond reasonable doubt of a fact or circumstance which I consider the prosecution must prove to that standard.
I use those words for conciseness of expression, not conciseness of thought. The fundamental principles governing a criminal trial have been in my mind throughout the trial and in contemplation of the result.
The manner in which a witness gives evidence can on occasions be a guide to credibility and reliability, though care must be taken not to read too much into a witness's demeanour. Some witnesses may present confidently in a setting in which they are familiar. For other witnesses, court is a forbidding place evoking nervousness.
Some witnesses may lie with bravado. Others may speak the truth with eyes downcast and hesitation.
In this case many witnesses speak of distressing events in which they played a part. Some have displayed anger or disgust.
For example, Ms Tamica Mullaley is understandably and obviously devastated by the loss of her child and without doubt blames the accused. At one stage after leaving the witness box she made a comment to him.
Her responses to some reasonable questions from Mr Myers at times might charitably be described as 'feisty'. I have taken this into account. However, her evidence on material matters, including the accused's assault on her is confirmed by other witnesses. She was prepared to acknowledge occasions when her behaviour was not good. She was forthright. I find she was an honest and truthful witness and where her evidence is in conflict with the accused (not many places) I accept her evidence and reject his. Specifically I am satisfied that her account of the accused's assault on her is correct. She did not slap him in the face first. The accused came up from behind and attacked her without warning.
Witnesses to events preceding the handover of the deceased to the accused were not significantly challenged in cross‑examination. In any event, I found the witnesses to be honest and believable. There are slight differences of account as to what the deceased was wearing at various times, whether he had anything to drink, and where he was put down to sleep. These differences are to be expected when people are recalling events of more than a year before, some of which were not notable at the time. The differences are minor and do not affect my essential findings.
These minor differences also appear in the description of events at the Fortescue Roadhouse. Mr Harris thought the deceased was wearing a nappy. Clearly he was not. Again these differences have no effect on my findings. For example, Mr Harris's mistake over the nappy does not detract from my conclusion that he is a highly qualified and experienced paramedic whose opinion about the deceased's condition I accept.
The limitations of demeanour as an aid to judgment are evident in evaluation of the accused's testimony. He responded appropriately to questions in cross‑examination although I thought Ms Mullaley's description of him at ts 204 was apt. I say this despite her use of the expression 'calm and controlled' in her original statement.
The accused is soft spoken and articulate. However, the content of his answers conflicted with other witnesses and in some respects the account he gave when first interviewed, EROI (exhibit 21).
At times his responses in cross‑examination were unconvincing. His failure to concede more than 'And I may have assaulted her. I'm not 100% sure (ts 883, 933) in respect of his sustained assault on Tamica Mullaley reflects adversely on his truthfulness. It is not only unbelievable but gives an insight into a person unwilling to admit to anything discreditable. Throughout his evidence of events that night, the accused tried to portray himself as neither angry nor upset, a condition belied by the savagery of the subsequent assault on Tamica Mullaley. He declined to go into details as to why he sent the text (exhibit 9) to Edward Mullaley after minimising what he had sent (ts 890, 948). I regard this as an attempt to divert attention from the initial text and its obvious intent.
I will deal with other aspects of his evidence in due course. Although superficially, the accused seemed a reasonable witness, I would not rely on anything he said without support from elsewhere.
My assessment of the evidence has been undertaken with these considerations in mind.

The overarching principles of law

Three overarching principles of law govern every criminal trial.

The presumption of innocence

There is a legal presumption that the accused is innocent of the charges of murder and sexual assault. That presumption has applied throughout the trial and my deliberations, ceasing only when displaced by proof of guilt beyond reasonable doubt.

The burden of proof

The second principle flows from the first. At all times the burden is on the prosecution to prove the charges of murder and sexual assault laid against the accused. This burden never shifts to the accused for the simple reason that his innocence of each charge is presumed. The EROI (exhibit 21) is an account given by the accused at a very early stage. The accused gave evidence. By doing so he has not assumed any burden of proof. His testimony becomes part of the evidence I have considered in concluding that the prosecution has discharged its burden. In material aspects I reject his testimony. Rejection of his testimony does not transpose into guilt or proof of the contrary. A core issue in this case is whether the prosecution can prove the injuries undoubtedly sustained by the deceased were caused by the accused. I reject the accused's testimony that the injuries were caused by the deceased being thrown from the vehicle accidently, or that the deceased sustained burn‑type injuries to his back after being laid, without thought of the consequences, on a hot rock. Those explanations being put to one side, the prosecution still carries the burden of proving that the injuries were deliberately caused by the accused.
I am satisfied that the accused deliberately inflicted all the injuries found on post‑mortem examination with the exception of the healing injury caused when the deceased accidently pulled a hair straightener down onto him a week before (the hair straightener injury). There are also minor injuries that may have been caused by administration of cardio pulmonary resuscitation (CPR). I am positively satisfied on the whole of the evidence, not merely because I have rejected material parts of the accused's evidence. Significantly, no one else was in a position to inflict any of the injuries.

The standard of proof

In order to sustain a verdict of guilty and negate the presumption of innocence, in respect of each count considered separately, the prosecution must prove its case beyond reasonable doubt. Any less standard of proof is insufficient to find the accused guilty. If I was not satisfied beyond reasonable doubt that the only inference available is one of the accused's guilt, then the prosecution would have failed to discharge the high standard of proof necessary to sustain a conviction on that count. A conviction can only be sustained if there is no reasonable doubt about the accused's guilt.
I have applied these principles to the facts which I have found, concluding that the prosecution has proved its case to that high standard. I have no reasonable doubt of the accused's guilt either for murder or sexual assault.

Principles relating to circumstantial evidence

The prosecution case is largely circumstantial. There is a period of about 15 hours when the accused was the only person in the company of the deceased. In the late evening of 19 March 2013 there were no apparent injuries to the deceased apart from the hair straightener injury. When the deceased was brought into the Fortescue Roadhouse, he had sustained the injuries later carefully described by Dr Cooke, the Chief Forensic Pathologist. A 10‑month‑old child at the appropriate stage of development could not accidentally injure himself in a way that accounts for the various wound sites.
The accused is not at law obliged to account for the deceased's condition. He took the opportunity to do so but I disbelieve his account. So the prosecution case depends on the inferences that can be drawn from all of the circumstances.
The accused is the only person known to be with the deceased from the time that Shimona Hill gave the deceased to him in Broome to the time that the accused entered the Fortescue Roadhouse, south of Karratha, (having been observed a short time earlier by two fishermen). The prosecution contends that he lied in the course of the electronic record of interview (EROI) (exhibit 21) and his explanations as to how the deceased sustained the injuries are simply not credible. In fact, the prosecution contends that the lie does more than simply diminish his credibility; it constitutes conduct which itself is a circumstance pointing to guilt.
The prosecution case relies on the circumstances in which the deceased came to be injured, came to be sexually assaulted, and came to die. It contends that the case can be proved beyond reasonable doubt because the irresistible and only inference from all the circumstances, considered together, is the accused's guilt on each count.
To describe evidence as circumstantial makes no judgment about its reliability. It does not mean that it is less reliable than direct evidence. On the contrary, it may be as convincing as direct evidence. Circumstantial evidence involves a second step; that is, the drawing of an inference or inferences from proved facts. An inference is a logical deduction from facts which have been accepted and proven. It is not guesswork, speculation, surmise or an imaginative stab in the dark but a logical deduction.
Evaluation of evidence in a circumstantial case is a two stage process. First, facts must be found. Only when facts have been established is the fact‑finder in a position to draw, if it is possible, a logical inference from those facts. If different inferences can be drawn from the same set of circumstances the inference is equivocal. A conclusion of proof beyond reasonable doubt cannot be established from circumstances which are equivocal. There cannot be satisfaction beyond reasonable doubt as to the accused's guilt so long as there are other reasonable hypotheses consistent with innocence.
Put another way, the circumstances and facts proved must not only be such as are consistent only with guilt but must be such as are inconsistent with any reasonable conclusion other than guilt.
In R v Hillier [2007] HCA 13; (2007) 228 CLR 618, the plurality (Gummow, Hayne and Crennan J):
The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence [46].
Their Honours continued:
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal [48].
Their Honours then quoted and gave effect to the well‑known decision in Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535:
At the end of the trial the jury must consider all the evidence and in doing so they may find one piece of evidence resolves their doubts as to another for example the jury considering the evidence of one witnesses by itself may doubt whether it is truthful but other evidence may provide corroboration and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again the quality of evidence of identification may be poor but other evidence may support its correctness; such cases the jury should not be told to look at the evidence of each witness separately in so to speak a hermetically sealed compartment; they should consider the whole of the evidence [83].
Guilt must be the only rational inference which can be drawn from the circumstances beyond reasonable doubt before a verdict of guilty can be pronounced. I have applied these principles in considering the evidence.

Lies as evidence of guilt

The reference to 'lie' in Ms Forrester's address opening the prosecution case (ts 148) is a reference to Edwards v The Queen (1993) 178 CLR 193. The test for using a lie as consciousness of guilt is set out by the majority (Deane, Dawson & Gaudron JJ):
Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. … When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to 'convert what would otherwise have been insufficient into sufficient evidence of guilt' or as corroborative evidence.
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'.
…
If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt (208 - 209, 210).
In Axford v The Queen (Unreported; WASC, Library No 980200; 20 April 1998) the Crown case was that the appellant killed the deceased by cutting her throat with the intention of killing her. The appellant had called out for the police and an ambulance. When the police arrived he told them that he had just arrived home and found her 'like this'. The deceased had had her throat cut. In relation to lies:
It [the jury] was entitled to take into account the lies told if satisfied of their relevance as instructed by His Honour. It is not necessary that the lie, if found to be a relevant lie, go directly to the issue of intent. The test of its relevance is that it 'must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie'. (Edwards (supra) at 48). That implication can only be by way of inference and, in my opinion, it may, in appropriate circumstances, result from the lie itself and, in other circumstances, from the lie considered together with other direct or circumstantial evidence. Whether or not the implication is to be made and in what respect it implicates the accused are matters for the jury. In my view it would be inappropriate and indeed wrong for the learned trial Judge to have directed the jury, as the applicant's counsel submits he should have done, that it could only use the lies to inculpate the applicant in the offence of manslaughter (26).
In Coates v The State of Western Australia [2009] WASCA 142 [152] ‑ [158] Buss JA set out a series of propositions in relation to lies:
First, although the guilt of an accused must be proved beyond reasonable doubt, an alleged admission constituted by the telling of a lie may be considered with the other evidence and, for that purpose, does not have to be proved to any particular standard. See Edwards, 210 (Deane, Dawson & Gaudron JJ).
Secondly, if an alleged admission constituted by the telling of a lie is the only evidence against the accused, or 'is an indispensible link in a chain of evidence necessary to prove guilt', then the lie (and its character as an admission against interest) must be proved beyond reasonable doubt before the accused may be convicted. See Edwards, 210 (Deane, Dawson & Gaudron JJ).
Thirdly, and subject to the second proposition at [153] above, the tribunal of fact may find that a lie told by the accused reveals a consciousness of guilt without applying any particular standard of proof, and may conclude that, on the whole of the evidence, the accused is or is not guilty beyond reasonable doubt. See Edwards, 210 (Deane, Dawson & Gaudron JJ).
Fourthly, a lie will not be evidence of guilt (as distinct from being merely a matter going to credit) unless it was deliberate. The accused must have told the lie because he or she knew that the truth was inconsistent with his or her evidence. It must be a lie that an innocent person would not have told and it must reveal knowledge of the offence charged or some aspect of it. The tribunal of fact may only use the lie as evidence of guilt if satisfied the accused knew that the truth would implicate him or her in the offence. See Edwards, 209 - 211 (Deane, Dawson & Gaudron JJ).
Fifthly, the lie, and the circumstances and events relied on to indicate that the lie constitutes an admission against interest, must be precisely identified. See Edwards, 210 - 211 (Deane, Dawson & Gaudron JJ).
Sixthly, the tribunal of fact must be aware (or, in the case of a jury, told) that there are many reasons why people tell lies, apart from the realisation of guilt. The tribunal of fact cannot use a lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence. See Edwards, 211 (Deane, Dawson & Gaudron JJ).
Seventhly, where a lie is relied on as corroboration of a witness's evidence (and not merely to strengthen the State's case), the untruthfulness of the lie must be established otherwise than by the evidence of the witness who is to be corroborated. See Edwards, 211 (Deane, Dawson & Gaudron JJ) [152] ‑ [158].
I am satisfied that the accused did lie to police when he told them that Tamica Mullaley had put the deceased in the LandCruiser. He told this lie to bolster his story that she was unfit to care for the deceased. He also told the lie to explain how he came to be driving with the deceased in the front seat of the LandCruiser rather than strapped in the car seat. This lie was necessary to account for the deceased falling from the LandCruiser and sustaining injuries.
He told the lie deliberately because he knew the truth would damage him. The truth was that while the deceased was in his charge he had deliberately injured the deceased at some stage and the injuries had nothing to do with Tamica Mullaley.
The lie can be a circumstance to be used in proving that the accused deliberately inflicted injuries. Ms Forrester, correctly, did not seek to use the lie as part of the circumstances to prove the accused's intention.
Although the lie is available to use as an element in reasoning towards guilt, I have not found it necessary or helpful to do so.
The accused lied as to how the deceased came by the injuries. I have rejected that evidence. The only reasonable alternative, having regard to all the other circumstances, is that the accused inflicted the injuries.

Homicide

Homicide is a term that means the killing of another person. There are many forms of homicide and not all involve unlawfulness.
Two forms of homicide are relevant in this case ‑ murder and manslaughter. They share common elements. But a homicide that is murder requires proof of an extra element. Relevant to this case, the extra element to be proved is the subjective intention of the accused at the time he did acts unlawfully which caused death. I commence with the common element of causation.

Causation

A common element is the killing of the deceased by the accused.
Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person: Criminal Code (WA) s 270.
There are two alternative routes available in this case by which the prosecution might factually establish that the accused caused the death of the deceased.
The first is causation by way of a contribution by the accused to the event of death.
The second is by proving that the accused failed to provide the necessaries of life to the deceased, thereby deeming him to have caused the consequence by his breach of duty: Code s 262. I am satisfied that the prosecution has proved the accused caused death by both routes.

First route - A contribution to the result

In Campbell v The Queen (1981) WAR 286 Burt CJ (Jones and Smith JJ agreeing) after considering whether it was permissible to introduce the word 'substantial' in a direction to a jury upon causation continued:
[It] would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating the purpose of the enquiry is to attribute legal responsibility in a criminal matter (290).
This formulation was expressly approved in Royall v The Queen (1991) 172 CLR 378, 387. In Burns v The Queen [2012] HCA 35; (2012) 246 CLR 334, [9] French CJ confirmed the test.
In Krakouer v The State of Western Australia [2006] WASCA 81; (2006) 161 A Crim R 347, Steytler P discussed the distinction between causal connection and causal responsibility:
When dealing with causation, a distinction has often been drawn between 'factual' and 'legal' causation.
Factual causation involves an enquiry whether there is in fact a connection between a person's conduct and the event alleged to constitute the offence (see Professor Eric Colvin 'Causation in Criminal Law' (1989) 1 Bond LR 253 at 254 and Kenneth Arenson 'Causation in the Criminal Law: A Search for Doctrinal Consistency' (1996) 20 Crim LJ 189 at 189 - 190). Usually, that question is simply answered by applying the 'but for' test, that is to say, by asking whether the event would have occurred but for the conduct in question. Ordinarily, satisfaction of that test will be essential to a finding of criminal responsibility. However, that is not necessarily the case. In March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 516 ‑ 517, Mason CJ pointed out (in a civil context) that:
'The "but for" test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test "gives the result, contrary to common sense, that neither is a cause": Winfield and Jolowicz on Tort, 13th ed. (1989), p. 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury … The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations. That in itself is something of an irony because the proponents of the "but for" test have seen it as a criterion which would exclude the making of value judgments and evaluative considerations from causation analysis: see Weinrib, "A Step Forward in Factual Causation", Modern Law Review, vol. 38 (1975) 518, at p. 530.'
Legal causation raises more difficult questions of criminal responsibility - whether the factual connection between the conduct in question and the event is sufficient to justify the attribution of moral culpability and, hence, legal responsibility. The approach to be adopted in this respect was discussed by the High Court in Royall v The Queen (1991) 172 CLR 378. The principal issue of causation in that case arose against a background in which the scenario was posited that the death of the victim had not been caused directly by the conduct of the accused but by an act done by the victim (jumping out of a window) in response to conduct of the accused (threatening behaviour). The judgments accordingly focused on the issue of causation in that context. However, there is some discussion of wider principle that is relevant to the issues in this case [21] - [23].
McLure JA made additional comments:
Under s 270 of the Criminal Code (WA), any person who causes the death of another, directly or indirectly, by any means whatsoever, is deemed to have killed that other person. Sections 272 to 275 deal with causation in particular situations: causing death by threats (s 272), acceleration of death (s 273), where death might have been prevented by proper precautions (s 274) and injuries causing death as a result of subsequent treatment (s 275). However, these specific sections do not, in my view, limit the generality of the causation requirement in s 270. The common law principles of causation provide guidance in that regard.
Causation involves questions of fact and law. Insofar as it is a question of fact, it must be determined on the evidence. An act or omission will be a factual cause if it is a necessary condition of the damage (in this case, death). This involves the application of the 'but for' test: would the deceased's death have occurred 'but for' the applicant's conduct. In the criminal law context, it is the death as and when it occurred that is in issue, not some potentiality or even inevitability of death at some other, even marginally later, time.
An act or omission does not have to be the sole or even the main cause of death. It is sufficient if it is a cause. Where death results from multiple independent contributing causes, none of which alone would produce that consequence, each contributing cause is a factual cause. Where death results from more than one cause, each of which is sufficient of itself to cause the death, the 'but for' test cannot be satisfied. However, if independent multiple sufficient causes operate together to produce the result, each cause is a factual cause of death: R v McLachlan [2000] VSC 516; Glanville Williams, 'Causation in Homicide' [1957] Crim LR 429 at 432. It is unnecessary to consider what the position would be in a situation where there are multiple sufficient causes but insufficient evidence to conclude that both causes factually contributed to a person's death (as and when it occurred). It may be that policy considerations require that each sufficient cause is a legal cause of death.
An act or omission that is, or is deemed to be, a factual cause of death, is a necessary but not of itself sufficient condition of criminal liability. The act or omission must also satisfy the legal test of causation which is used as a filtering device to narrow the unacceptably wide net cast by the test of factual causation. The legal test of causation is that the act or omission must have substantially or significantly contributed to the relevant event: Royall v The Queen (1991) 172 CLR 378. Of course, if the evidence does not establish factual causation then (save in exceptional situations) the legal test cannot be satisfied. If factual causation is established, the legal test answers questions relating to, inter alia, the sufficiency of the contribution made to the relevant event and the effect of intervening acts of the victim or a third party.
The decided cases demonstrate that injuries which would not themselves cause death can make a substantial or significant contribution to a person's death as a consequence of their combination with the victim's pre-existing independently caused injuries or condition: R v Dyson [1908] 2 KB 454; R v Garforth (1954) Crim LR 936; R v Cato [1976] 1 WLR 110; and R v Franklin (2001) 3 VR 9 at 28 - 30 per Brooking JA. If independent multiple sufficient causes combine together to result in death, it must surely follow that each makes a substantial or significant contribution to that death [74] ‑ [78].

In Krakouer the court adopted a retrospective test which involved looking backwards from a death to ascertain in the light of all that happened the contribution of the accused was a substantial one.
In Royall v The Queen the substantial contribution test was followed by several members of the High Court as discussed in Krakouer [30] ‑ [31]. It should be noted however a death can be caused but still be an 'accident': Jemielita (1995) 81 A Crim R 409, 432 ‑ 433.
As will be seen, the accused made a significant contribution to the result and I am satisfied that he caused the deceased's death.

Second route - failure to provide the necessaries of life

The Criminal Code (WA) s 262 provides:
Duty to provide necessaries of life
It is the duty of every person having charge of another who is unable by reason of age, sickness, mental impairment, detention, or any other cause, to withdraw himself from such charge, and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract, or is imposed by law, or arises by reason of any act, whether lawful or unlawful, of the person who has such charge, to provide for that other person the necessaries of life; and he is held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty.
In R v MacDonald (1904) St R Qd 151 the Full Court gave judgment on questions reserved to it. The respondents were charged with the wilful murder of their daughter. They were alleged to have brought about the death of the deceased by a series of acts consisting of (1) Violence and ill‑treatment; (2) Failure to furnish the deceased with proper clothing; (3) Starvation; (4) Neglect to obtain any medical advice when it was easily procurable.
The deceased was 14 and when she was first taken to live with the respondents she was a robust, healthy child. Eight months later she died in a very emaciated condition, covered with sores and dirt with two of her ribs broken, her right wrist disorganised. During this period she was in the sole care of the respondents.
The questions for the court were:
1.Whether there is any evidence of a legal duty on behalf of the female prisoner and a neglect of a legal duty which caused or accelerated the death of the deceased?
2.Whether there is any medical evidence upon which the jury were justified in arriving at a conclusion that death arose from the neglect of any duty?
3.Whether my direction was correct that both of the prisoners, as a matter of law, particularly the father, had a special duty to attend to the wants of the deceased, and a neglect of that duty by either or both, resulting in death, made the one or both guilty of murder or manslaughter, according to circumstances?
4.Whether my direction was correct that the fact of the prisoners not calling in medical assistance might be evidence of neglect, but was not necessarily so? (160)
Chief Justice Cooper:
The prisoners had charge of the child; there is abundant evidence that she was unable to withdraw herself from such charge, and that she was unable, from want of opportunity, to provide herself with the necessaries of life. Under these circumstances the prisoners were both bound, by s 285 of the Criminal Code to provide her with such necessaries. There was sufficient food in the house at the disposition of the female prisoner, and there was a sufficient supply of clothes suitable for a girl of Grace's age. Medical aid, under certain circumstances, is one of the necessaries of life, and if the jury believed the medical witness, there was convincing evidence that it was so in this case. It was the prisoners' duty, therefore, to provide medical aid, food, and clothing, not according to any exaggerated opinion of supersensitive or over‑refined persons, but according to the plain commonsense ideas of ordinary English people. It was clearly the duty of both prisoners to use efforts reasonable for persons in their position to secure necessary medical assistance, and if the male prisoner neglected to do so, and the female prisoner, intended to cause death, purposely refrained from any attempt either to induce him to send for a doctor, or to procure a doctor's assistance herself, she was guilty of murder if death was the result of such negligence (169 - 170).
Real J:
[Apart] from common law, therefore, both prisoners were bound, by the express provisions of s 285 of the Code, to provide her with necessaries of life. If, therefore, any neglect on part of the prisoners, or any omission to provide the necessaries of life to the child caused her death, the jury could find the prisoners guilty of wilful murder, if there was evidence of intention to kill by such neglect or omission, and it would not be necessary to deal further with this case than to say the acts of neglect and omission to supply necessaries referred to by the Chief Justice are sufficient to warrant the finding of the jury by reason of the duty imposed on them as persons having charge of this child under the circumstances shown in the case. I think it right to add that, apart altogether from these sections, there was, in my opinion, sufficient evidence of acts done by each of the prisoners, coupled with omissions of common law duties, to warrant the finding of the jury against either of the prisoners, without reference to the acts of the other prisoner (174).
Chubb J:
The law of this State as to the crime of wilful murder is now declared by the Criminal Code. Section 301 defines the crime. It is necessary to prove an intention, by the person unlawfully killing another person, to cause the death of the person killed, and killing is causing the death of another directly or indirectly by any means whatever (s 293). When an act is done or an omission made by a person which hastens the death of another person when labouring under some disorder or disease arising from another cause, that person is deemed to have killed that other person (s 296). A motive is immaterial (s 23). The jury have found here both the killing and the intention against both prisoners (176).
Chubb J went on to discuss medical aid:
Now as to medical aid. Is that a necessary of life? That it might be in such a given case was so held in R v Senior [1899] 1 QB 283. In The King v Brooks 1902, 5 Canadian Criminal Cases, 372, the necessaries of life are stated to be such necessaries as tend to preserve life. I think it is common knowledge, and, I think, common sense, that medical aid and remedies promptly applied and administered do tend to, in many cases, prolong, if not altogether preserve, life. In this case the medical evidence was that proper treatment of the girl in the earlier stages could have prevented her from reaching the stage she did, and that there was no reason why she should not have been cured; that the life of the girl could have been saved if the witness (Dr Hewer) had been called in two or three months before death; that treatment by a competent person would have prolonged life. Clearly, therefore, here medical aid and remedies were necessaries of life, as held in Rex v Senior, The King v Brooks (178).
In Heaton v The State of Western Australia [2013] WASCA 207 (Pullin JA):
The appellant was charged with manslaughter. That required proof that the appellant killed the deceased. If a person comes under the duty set out in s 262 of the Criminal Code and if a person dies in consequence of that breach of duty, then the person committing the breach is held to have caused that death and therefore killed that person. Such a killing would be unlawful unless authorised, justified or excused by law. One of the elements of a charge of manslaughter is that the killing was unlawful. Where the prosecution alleges, as it did here, manslaughter by breach of the duty to provide the necessaries of life, a breach of the duty imposed by s 262 becomes an element of the offence. That reasoning is based on what was said in Macaree v The State of Western Australia [2011] WASCA 207 [26], which was dealing with the duty imposed by s 266 of the Criminal Code [18].
As was pointed out by the plurality in Burns v The Queen:
Criminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do. As a general proposition, the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life. Such an obligation may be imposed by statute or contract or because of the relationship between individuals. The relationships of parent and child, and doctor and patient, are recognised as imposing a duty of this kind. A person may voluntarily assume an obligation to care for a helpless person and thereby become subject to such a duty. Outside limited exceptions, a person remains at liberty in law to refuse to hold out her hand to the person drowning in the shallow pool [97].
In R v Taktak (1988) 14 NSWLR 226 Yeldham J referred to Jones v United States of America 308 F 2d 307 (1962).
The appellant also asserted that the trial judge erred because he did not direct the jury that a person has charge of someone only if the effect of the action is 'to seclude him or her so as to prevent others from rendering or obtaining aid' to that person. This submission is based upon the reasons of Yeldham J in R v Taktak (1988) 14 NSWLR 226 (245) where his Honour referred to the case of Jones v United States of America 308 F 2d 307 (1962). In Jones, reference was made to 'four situations' where the failure to act may constitute the breach of a duty. One was where a statute imposes a duty to care for another; the second was where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
Taktak was a case where the deceased was affected by drugs, but the drugs had not been administered by the accused. However, the accused took the drug-affected girl to premises and attempted to revive her. The point in that case was that the victim was removed from a location where others may have helped her to a location where she was denied that chance. This appears from the reasons of Yeldham J:
The question here is whether there was evidence for the jury that the appellant had voluntarily assumed the care of a helpless human being. Certainly the deceased was helpless, as the appellant in his record of interview conceded. The question whether, by taking her to [the] premises and dealing with her as he did, rather than leaving her to lie in Liverpool Street, he thereby assumed a duty to care for her, is one which must be decided by the application of principles already summarised. … Although, if not taken by the appellant to [the premises] the deceased may well have remained where she lay in the foyer of a building in Liverpool Street and later died. Equally she may have been seen by another or others who were prepared to and did obtain speedy medical assistance for her. This chance was denied to her by the appellant when he took her away. This is a factor which, in some of the cases … is regarded as significant (246).
Yeldham J then went on to say that:
[T]here was evidence that the appellant did assume a duty to care for the deceased girl, who at the time was helpless, and by so doing removed her from a situation in which others might have rendered or obtained aid for her (246).
Carruthers J added:
[T]he duty will also arise where one person has voluntarily assumed the care of another who is helpless, through whatever cause and so secluded such person as to prevent others from rendering aid (250).
The Criminal Code s 262 is not a restatement of the common law and does not require a direction about seclusion. However, the seclusion of another - that is, assuming the care of a helpless person and removing them from a location where others may have rendered assistance - will be a relevant factor in deciding whether a person has taken charge of another such that a duty under s 262 arises.
In subsequent reasons I will explain why I am satisfied the accused failed to provide the necessaries of life to the deceased and caused his death.

Unlawfulness

A killing is unlawful if it is not excused by law. A killing is excused by law relevantly in this case if the prosecution cannot exclude as a reasonable possibility that death occurred accidentally by reference to the Criminal Code (WA) s 23B:
Accident
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an event which occurs by accident.
(3)If death or grievous bodily harm -
(a)is directly caused to a victim by another person's act that involves a deliberate use of force; but
(b)would not have occurred but for an abnormality, defect or weakness in the victim,
the other person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.
(4)Subsection (3) applies -
(a)even if the other person did not intend or foresee the death or grievous bodily harm; and
(b)even if the death or grievous bodily harm was not reasonably foreseeable.
In R v Taiters (1997) 1 Qd R 333 the court recommended the following as a jury instruction:
The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.
The Code s 23B is subject to provisions in ch XXVII relating to negligent acts and omissions. Not all provisions within ch XXVII relate to negligent acts or omissions. The duty to provide necessaries of life does not depend on a negligent omission. However, the assessment of the omission must be made recognising that the omission must be so serious as to amount to a crime against the State and much more than mere compensation.
I have briefly noted the law in relation to accident for completeness but it has no operation in this case. I am satisfied that the injuries sustained while the accused had charge of the deceased resulted from deliberate acts of the accused in every case. They were not accidentally sustained.

Intention - additional element to the crime of murder

The crime of murder is committed if a person unlawfully kills another and the prosecution proves that the accused:
(a)intends to cause the death of the person killed; or
(b)intends to cause a bodily injury of such a nature as to endanger or be likely to endanger the life of the person killed or another person.
For ease of expression I shall refer to this second intention as an intention to cause a life endangering injury although I am mindful that an injury likely to endanger life caused with intention can be sufficient.
In Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 (McLure P) held that although the injury must have been intended its dangerousness need not have been foreseen:
The expression 'of such a nature' as to endanger, or be likely to endanger, life is in my view intended to define the scope or types of bodily injuries that must be intended, being bodily injuries that have the (objective) potential consequence or effect. That is, s 279(1)(b) is partly subjective and partly objective; the accused must subjectively intend to cause bodily injuries which objectively endanger life, or would be likely to endanger life [25].

Intention is a statement of mind and as a fact capable of being proved like any other fact

Intention does not require premeditation but may be formed and executed within a moment. It is different from motive. The prosecution does not have to prove motive: Criminal Code s 23. If, as here, I find a motive for the accused's actions, that is one of the circumstances that can be taken into account in determining whether the prosecution has proved the accused acted with an intention.
In R v Ping [2005] QCA 472; (2006) 2 Qd R 69 (Chesterman J):
'Intention' has no specific legal definition. It is to be given its ordinary everyday meaning. 'Intention' is the act of determining mentally upon some result. It is a 'purpose or design' (see The Macquarie Dictionary) [29].
In Willmot v The Queen [No 2] (1985) 2 Qd R 413 (Connolly J):
The mental element which must be proved when a case of murder goes to the jury under s 302(1) [s 279(1) WA] is intention to cause death or do grievous bodily harm. The ordinary and natural meaning of the word 'intends' is 'to mean, to have in mind'. Relevant definitions in the Shorter Oxford English Dictionary show that what is involved is the directing of the mind, having a purpose or design. The notion of desire is not involved as the learned judge rightly held. A person may do something, fully intending to do it, although he does not in the least desire to do it.
Intention may be proved through circumstances and the drawing of inferences. The circumstances of a killing may be such that it is reasonable to conclude the accused's purpose must have been to kill or cause a life endangering injury. However, as with the drawing of any inference adverse to an accused, the circumstances must be such that the inference as to the accused's intention to kill or cause life threatening bodily injury must be such that it is the only available inference to be drawn. If there is another inference reasonably available then it follows that the prosecution has not established this element of the offence beyond reasonable doubt. The ultimate issue is always the accused's state of mind which, on occasion, may not be the same, as objective factors may apparently indicate. I have borne this steadily in mind.

Witnesses - their roles in the events and investigation

The State adduced evidence from 60 witnesses and tendered 35 numbered exhibits, some comprising numerous photographs. Some witness statements were read into evidence by consent.
Most witnesses however were called by the prosecution and gave evidence in court or by video link.
The accused gave evidence and called two witnesses.

Broome

Tamica Anne Mullaley

Daughter of Edward, mother of Charles (the deceased). Relationship with Mervyn Bell (the accused). Lived 17 Hamersley Street, Broome.

Edward James Mullaley

Father of Tamica, grandfather of deceased. Lived 17 Hamersley Street, Broome.

Mervyn Kenneth Douglas Bell

Accused. Relationship with Tamica, looked after deceased. Lived at 17 Hamersley Street, Broome.

Gerald Arron Lyndon

Partner of Amey McKinlay. Lives at Unit 5, 28 Forrest Street, Broome with Shimona Hill. Cousin of accused.

Amey Jane McKinlay

Partner of Gerald Arron Lyndon. Lives at Unit 5, 28 Forrest Street, Broome with Gerald and Shimona Hill, Gerald's sister.

Shimona Trinette Hill

Sister of Gerald Lyndon. Living at Unit 5, 28 Forrest Street, Broome.

Whitney Michelle Hannivig‑Jones

Daughter of Rosslynn Michelle Dinah, cousin of Chantelle Dinah. Lives at Guy Street, Broome.

Rosslyn Michelle Dinah

Mother of Whitney Michelle Hannivig‑Jones. Living at 32C Guy Street.

Chantelle Dinah

First cousin of Whitney Hannivig‑Jones. Partner of Timothy Oui. Living at 32C Guy Street.

Tracey Melissa Gilchrist

Neighbour of Kim Zanik. Lives corner of Guy and Forrest Streets. Observed assault.

Kimberley Jade Zanik

Neighbour of Tracey Gilchrist.

Johnene Helena Crowhurst

Lives in Forrest Street, Broome. Heard commotion at Unit 5, Forrest Street and observed aspects of the assault on Tamica Mullaley.

Michael Lee Grima

Lives 15A Hamersley Street, Broome. Observed interior light in LandCruiser go on and off.

Mullewa

Serina Ann Dershow

First cousin to accused. Sister of deceased's father Alan. Aunt of deceased. Lives in Mullewa. Telephoned by accused in the early morning of 20 March 2013.

Pardoo Roadhouse

Ian Christopher Badger

Owner and manager of Pardoo Roadhouse, Great Northern Highway.

Janet Lindsay Robb

Ian Badger's partner.

Malcolm Gary Gilbert

Road train driver stopped at Pardoo Roadhouse.

Robert Allan Harvey

Co‑driver with Gilbert.

Great Northern Highway

Ian Thompson

Driving a large truck. Saw LandCruiser on the southern bank.

Ray James Brown

Friend of Edward Mullaley and driving his truck. Saw accused driving LandCruiser on Great Northern Highway near Karratha turn off about 12.30 pm.

Garry Frederick Plautz

Stopped at Pardoo. Later saw LandCruiser on side of road and phoned the registration number to Badger.

Karratha

Mark Bonython Blewett

Karratha Centro Operations Manager. Supplied CCTV part of exhibit 34.

Brock McKay

Coles Karratha second‑in‑charge. Supplied CCTV part of exhibit 34.

Gregory Peter Atkins

Manager, Thirsty Camel, Karratha. Supplied CCTV footage part of exhibit 34.

Dayle Louise Lord

Attended to accused at Karratha Visitor Centre.

Barry John James Harris

Manager, Karratha Visitor Centre. Supplied CCTV footage part of exhibit 34.

Miaree Pool

Clayton Gregory Brown

Fishing at Miaree Pool with friend Josh Marmion.

Joshua Douglas Marmion

Fishing companion of Clayton Brown.

Fortescue Roadhouse, Great Northern Highway

Amanda Lee Black

Working the front counter. Witnessed events.

Ann Marie Howell

Cook at Fortescue Roadhouse. Witnessed events.

Gavin Ross Duff

Truck driver. Having lunch when accused placed deceased on his table.

Peter Joseph Erpen

Site Manager, ESS camp office. 800 m from Fortescue Roadhouse. Attended incident with Shane Robinson.

Graham Gerald Williams

Went to Fortescue Roadhouse from ESS camp and assisted with CPR.

Gary Verdun Harris

Paramedic who attended Fortescue Roadhouse in ambulance from Gold Security Group over 32 kms away.

Kyle Mark Altadonna

Accompanied Harris.

Operational officers

Robert Dennis McIntosh

Constable on duty with Sergeant Bateman. Attended Fortescue Roadhouse at 2.39 pm.

Thomas Alexander Bateman

Acting Sergeant, on patrol with McIntosh.

Grant Andrew Wiltshire

Detective Senior Constable. Contact made with Anne Howell at 2.12 pm and arrived at Fortescue Roadhouse at about 3.20 pm. Front tyre in Fortescue River bed.

Jeramy Michael Davies

Detective with Detective Cunningham. Intercepted ambulance on its way to Karratha.

Gregory James Cunningham

On duty with Detective Davies. Conducted EROI (exhibit 21).

Laura Emily Campbell

Constable. Took accused into custody and transported him to Karratha.

Paul Michael Carrall

Constable Campbell's partner.

Adrian Lee Richards

Detective Senior Sergeant. Co‑ordinated operations in afternoon of 20 March 2013. Advised accused that deceased had died.

Jason Mark Bylund

Paramedic, attended the police station to check on the accused.

Grant Alan Smith

Detective Senior Constable, Major Crime Squad. Conducted EROI (exhibit 21) with accused.

Forensic evidence

Constable David Massey

Forensic examination of Unit 5, 28 Forrest Street and 17 Hamersley Street, Broome. Found ripped clothing in bin at Unit 5.

Constable Kirstina Alexandra Stewart

Conducted forensic investigation of LandCruiser. Found bloodstains.

Constable Darren Keith Harston

Examined LandCruiser and tested front door.

Neil Harrison

Forensic officer. Examined the deceased's body and LandCruiser. Attended at Miaree Pool. Performed door test videoed by Smith.

Senior Constable Greg Stuart Ferguson

Forensic crime scene investigator. Forensic case officer.

Ross Hedley

Forensic Scientist, PathWest. Recovered DNA from samples.

Rikki Lee Smith

Forensic officer. Took photographs of deceased at Nikol Bay Hospital (exhibit 26). Examined and photographed LandCruiser and door test DNA (Exhibit 29).

Stephen William Stingemore

Forensic officer. Photographed LandCruiser at Fortescue Roadhouse. Photographed accused (exhibit 30).

Peter Andrew Collins

Section leader, physical evidence section, forensic science laboratory. Evidence of condition of nappies found in the car.

Medical witnesses

Dr Clive Trevor Cooke

Chief Forensic Pathologist, PathWest. Performed autopsy.

Dr Victoria Ann Fabian

Neuropathologist. Examined deceased's brain.

Dr Suzanne Rea

Consultant burns specialist.

Dr Louise Elizabeth Houliston

Consultant paediatrician.

Dr John Millar Napier Hilton

Defence witness - Pathologist. Commented on findings.

Dr Scott Claxton

Defence witness - sleep and respiratory physician. Opinion on effect of lack of sleep.

The LandCruiser BM 23756

Edward Mullaley is the registered owner of a Toyota LandCruiser BM 23756. He had given the LandCruiser to his daughter Tamica and, by implication, the accused to use as well. He also installed a car fridge in the back so that the children could have cool drinks and fruit.
The LandCruiser was fitted with a child restraint seat on the rear bench and the deceased was always strapped into the seat when the family went out.
The LandCruiser was used as, might be expected, to go shopping or take the boys for a swim.
It was driven by the accused on 19 and 20 March 2013 at all relevant occasions.

Broome - 19 March 2013

There is no significant controversy about the events of the early evening of 19 March 2013 and they can be described in overview as they set the scene for what happened later.

Socialising at Gerald's house

In the late afternoon of 19 March 2013, Tamica Mullaley and the accused decided to visit the accused's cousin, Gerald Lyndon, whose partner is Amey McKinlay. They live at unit 5, 28 Forest Street, Broome (Gerald's house). Some alcohol, bourbon and Cola were purchased. Although Tamica Mullaley's other son was being babysat by Edward Mullaley, he declined to babysit the deceased. Tamica Mullaley took the deceased with her. The deceased was a normal 10‑month‑old child not quite walking though able to climb up and down stairs. His only apparent injury was the hair straightener healing burn which was not significant.
By early evening and continuing, the two couples were socialising under the carport at Gerald's house. Gerald's sister, Shimona Hill, was also living there. The deceased was behaving normally though he was teething and may have been a little irritable and sooky. At some stage in the evening, the deceased was put down to sleep. There is a difference in the evidence which is immaterial as to whether he was put down on a mattress outside where the adults were under the carport or inside with other children.

An argument develops

During the course of the evening, an argument developed between Tamica Mullaley and the accused as to whether the accused had been unfaithful with another woman, Vicki. The accused responded with allegations of his own concerning Gerald Lyndon and Whitney Hannivig‑Jones.

The visit to Whitney Hannivig‑Jones

As a consequence Tamica Mullaley, who was intoxicated to a degree, and Amey McKinlay walked with the deceased, to the home of Whitney Hannivig‑Jones in Guy Street, Broome, a short distance away. Whitney Hannivig‑Jones is the best friend of Tamica Mullaley. Staying with her that night was her mother Rosslyn and her first cousin, who was also referred to as her sister, Chantelle Dinah. Although Amey McKinlay and Tamica Mullaley were verbally aggressive when they first arrived, they seemed to calm down. They returned to Gerald's house and somebody seems to have told the accused that there was a man at Whitney Hannivig‑Jones' house who wanted to fight him. The accused walked up to the house and quickly discovered that the information was untrue. He was not aggressive and was polite.
At some stage during the evening the accused and Gerald went off to buy some cannabis and had two cones together. During the evening the accused had also drunk a number of cans of alcohol.
The accused returned to Gerald's house after he and Gerald had consumed cannabis at another house.

The accused's assault on Tamica Mullaley

Tamica Mullaley said that when she returned to Gerald's house, the accused was still being nasty. She was drunk and could not drive home so she walked back to Whitney's house to collect her pram:
I was walking back to Whitney's and I got hit from behind.
And did you ultimately see who hit you?‑‑‑I know who hit me.
Who was it?‑‑‑Mervyn.
And how hard did he hit you?‑‑‑Knocked me to the ground.
And what did he do while you were on the ground?‑‑‑Bashed shit out of me.
Did he do anything else?‑‑‑No. He just kept bashing me.
And how long did that go on for?‑‑‑I don't know.
Did he ultimately stop doing that?‑‑‑No, not until the - when he was finished.
And when he had finished - - -?‑‑‑Then he went and took off.
All right. Were you injured in that?‑‑‑Yes.
Where?‑‑‑My whole body. I couldn't move.
Were you bleeding at all?‑‑‑Yes. I was naked and I was bleeding.
How did you come to be naked?‑‑‑He took all my – ripped all my clothes off me.
Now, where were you in relation to Whitney's house when that happened?‑‑‑One house from Whitney's. One house from Gerry's (ts 183).
Ms Mullaley said that she was screaming and shouting during the assault and that the accused returned in the LandCruiser and tried to run her over. She spoke of a lady coming out of the house who would have been Ms Gilchrist:
[She] come and stopped Mervyn from running over me, ran out into the driveway.
And did - - -?‑‑‑And he shouted at her and she shouted at him because he was trying to make me get in the car and I wouldn't get - and I couldn't move to get into the car. And so that woman ran - must have went back to her house and got a sheet because it was - her driveway was covered in blood and I had no clothes on. So she went inside and grabbed a sheet and he left then (ts 184).
In cross‑examination, it was put to Tamica Mullaley that she had struck the accused:
[And] I suggest that you struck him in the face and he responded, at that point of time, by punching you and assaulting you in the - basically, in the way that you describe, by hitting him?‑‑‑No, I don't recall any of that (ts 213).
Ms Gilchrist described that at about 10.30 pm she heard some yelling and raised voices so she went to investigate. The yelling was a female:
[And] at that time, directly - all I could see was a figure standing there - a shadow of - well, a form of a figure, and I saw this arm - I saw the person punching their arm down. I couldn't see who it was, because the fence had obscured my view (ts 286).
She clarified that she thought it was a man doing the punching in a downward direction:
[How] many of those punch‑type motions did you see, if you're able to say?‑‑‑I couldn't give you a figure, but there was quite - there was quite a number.
And from what you could see, are you able to say anything about the force of those?‑‑‑Well, they were hitting with intent, you know, so it was quite a strong force (ts 287).
When the accused walked away, Ms Gilchrist went to the boundary side of her property and enquired how Ms Mullaley was and was told that 'he has taken all my clothes'. Ms Mullaley was huddled down clutching her knees. Ms Gilchrist went inside, got a sheet and her mobile phone:
Well, I crouched down in front of her and I could see that there was something wet on her face, and I tilted her head back and I could see that there was blood (ts 289).
Ms Gilchrist then called Edward Mullaley, at Tamica Mullaley's request and also phoned the police. Two women approached and tried to give the deceased to Ms Mullaley who said 'No, no, no. Take him away. I don't want him to see me like this'. One of these was Shimona Hill.
Ms Gilchrist described the accused's return in the LandCruiser:
When - when we were with Tamica, there was a four‑wheel drive parked up towards Roebuck Bay, several - several driveways up, and it had reversed out and it started coming towards us and Tamica said - you know, Tamica said - I can't remember the exact words, but 'He's going to hit us,' you know, 'He's going to hit me.' So that's when she got - she - I guess she got frightened and ran and hid behind the ute.
The ute?‑‑‑Yes.
That's the car in the carport?‑‑‑That's right, yes.
Did the car actually come towards your property?‑‑‑The car pulled - came up and - yes, came up and ended up behind my car. Yes.
How fast did it come up onto your driveway?‑‑‑It was coming pretty fast because I ended up running to my front door, because I thought I was going to be hit as well, you know, so I - yes (ts 292).
She said that the LandCruiser drove into the driveway behind her car and she heard the driver say 'Get in the car now'.
Ms Gilchrist asked the driver emphatically to leave her property which he did by reversing out, cutting across the grassed area which surrounded Ms Gilchrist's property.
Ms Zanik became aware of the noise about 10 past 10 after the assault had occurred.
Shimona Hill gave evidence that Tamica Mullaley and the accused walked off together, Tamica walked first and the accused was behind. The deceased was asleep on the mattress in the driveway. She then described what she saw which was:
You say that Mervyn was hitting her?‑‑‑Yes.
Hitting who?‑‑‑Yes.
Who was he hitting?‑‑‑Tamica.
And how was he hitting her?‑‑‑Kicking her.
Kicking. Did you say kicking?‑‑‑Yes (ts 379).
…
[And] was Tamica standing up at the time?‑‑‑She was but when he kicked her, she went down.
And you said that you ran inside?‑‑‑Yes.
Into the house?‑‑‑Yes.
When you ran inside, was Mervyn still hitting Tamica or did you run inside and - - -?‑‑‑Yes. The last look I had seen, yes, he was.
All right. And you ran inside and what did you do?‑‑‑I told my brother and Amey (ts 380).
Shimona Hill described how she took the deceased and was walking towards Tamica Mullaley when she saw the accused go back to the LandCruiser and reverse out really fast. She asked Tamica Mullaley whether she wanted to take the deceased. At that stage she observed that Tamica Mullaley was bleeding and she had a sheet around her. She then saw the accused coming towards Tamica Mullaley in the car and 'but she quickly moved into … someone's driveway' (ts 381).
In cross‑examination Ms Hill accepted that she had not told the police about any kicking and hitting, but explained:
Well, what made you remember today?‑‑‑Because you are bringing back memories and I, like, really tried to block it out but I - obviously I can't because this is - you know, it has been playing on my mind every day since it happened (ts 393).
Ms Hill agreed that what she told the police at the time was more accurate than what she remembered in court. In re‑examination she was asked:
Did you see him kicking and punching Tamica or not?‑‑‑Yes (ts 396).
Ms Hill's evidence has general support from the evidence of Tamica Mullaley and Tracey Gilchrist. As a witness, Ms Hill was obviously uncomfortable and nervous. However, I find that she did see the accused both kicking and punching Tamica Mullaley, notwithstanding that she failed to mention it to the police the following day.
The accused's evidence about the attack minimised and downplayed his involvement to an extent where I am satisfied he was being deliberately evasive.
In his evidence‑in‑chief:
And did something happen as you were going up towards Whitney's?‑‑‑Tamica was still swearing and carrying on, and I was behind her, and she turned around and slapped me, and that's when me and her had a bit of an altercation.
Well, when you had an altercation, how did that - what form did that altercation take?‑‑‑Well, we were both grabbing each other and we ended up on the ground. Yes. And I may have assaulted her. I'm not 100 per cent.
All right. When you say 'assaulted her', what do you mean by that?‑‑‑I may have punched her.
What about kicking her?‑‑‑I only had thongs on so I wouldn't have been able to kick anybody.
Right. All right. What about kneeing her?‑‑‑No.
Right. All right. Where did this altercation take place?‑‑‑I'm not 100 per cent sure, but I think it was a house or two next to Gerald's.
All right. And did you do anything else with respect to Tamica?‑‑‑I pulled her clothes off her because she humiliated me in front of everybody and I wanted to humiliate her.
Right. And what happened to her - what did she do after that?‑‑‑I'm not too sure. I turned around and walked back to Gerald's.
Right. And what did you do?‑‑‑I ended up hopping in the car shortly after and I felt guilty about the way I left her with no clothes on, so I then tried to drive down the street wherever she was.
All right. And how did you drive down the street? Did you drive on the roadway or somewhere else?‑‑‑I drove back onto the road and then drove over the grass ‑ ‑ ‑
All right?‑‑‑ ‑ ‑ along the footpath sort of.
And where did you drive to?‑‑‑Approximately two to three houses down from Gerald's.
Right. And how fast did you drive?‑‑‑I can't really say.
All right. And as you drove down, what happened? What did you do?‑‑‑I pulled into a lady's driveway because I saw movement. I then sang out for Tamica to get in the car and a lady came out of the house and said, in no (indistinct) terms, 'Fuck off.' So I then reversed and took off around the corner (ts 883).
The accused denied trying to run Ms Mullaley down.
In cross‑examination:
And you did punch her, didn't you?‑‑‑I'm not 100 per cent sure but I may have, yes.
What did - well, do you not remember?‑‑‑I may have punched her but I cannot say.
Why can't you say, Mr Bell? Is it that you can't remember or you don't want to say?‑‑‑Well, I'm not going to speculate because there was ‑ ‑ ‑
I'm not asking you to speculate, Mr Bell. Did you punch her?‑‑‑There was a bit of an altercation between me and her and I may have punched her.
Do you remember?‑‑‑I'm not 100 per cent sure but, yes, I may have punched her.
Did she punch you?‑‑‑She most definitely did slap me, yes.
She most definitely did?‑‑‑Yes.
So can you explain how it is that you recall that she slapped you but you can't recall what you did to her?‑‑‑I know that I ripped her clothes off and that and I may have punched her in the process but - yes.
Well, you're just lying about that, aren't you?‑‑‑I never - I never - yes.
You're just lying about that, aren't you?‑‑‑What's that?
About the fact that you don't recall whether you punched her?‑‑‑I said I may have punched her. I'm not admitting to punching her. I may have punched her.
You definitely ripped her clothes off?‑‑‑By the looks of it, yes, I did.
What do you mean 'by the looks of it,' Mr Bell?‑‑‑Well, there wasn't - she didn't have no clothes on, yes.
Well, did you do that?‑‑‑So I did rip her clothes off.
You did?‑‑‑Yes, I did.
Right. And, in fact, you threw those clothes into the bin, didn't you?‑‑‑I can't recall putting clothes in the bin, no.
Might you have done that?‑‑‑I may have done that.
You knew exactly where she was when you went back to get your car, didn't you?‑‑‑I had a fair idea but I wasn't 100 per cent sure.
And you didn't just go back to Gerald and Amey's; you went back to get the car, didn't you?‑‑‑What do you mean by that?
You went back to Gerald and Amey's for the sole purpose of getting in the LandCruiser and driving back to where Tamica was?‑‑‑To go and pick Tamica up because she was naked.
Just moments earlier you had torn her clothes off and you were going back to pick her up?‑‑‑I felt guilty that she was in the streets naked so - yes.
You felt guilty?‑‑‑I went to pick her up to get her in the car.
Right. You said that when you tore her clothes off you did that because you wanted to humiliate her?‑‑‑Yes.
Because she had humiliated you?‑‑‑Yes, I did.
How did she humiliate you?‑‑‑By accusing me of having indecent dealings with another person.
Indecent dealings?‑‑‑Sexual intercourse.
With an adult?‑‑‑With another person that I was not in a relationship with.
So she had humiliated you by doing that, had she?‑‑‑It went on for a long time, yes.
And your response to that was to tear all her clothes off in the street?‑‑‑Well, that came after me and her had an altercation, yes.
Well, I'm asking you when you said, 'I wanted to humiliate her like she humiliated me,' what did you mean by -
That?‑‑‑Humiliate. The exact words what I just said - humiliate.
So she humiliated you by accusing you of sleeping with someone else?‑‑‑Yes.
And you humiliated her by tearing her clothes off in the street?‑‑‑Yes.
After having assaulted her?‑‑‑I think so, yes.
And then you went and got your car and you felt guilty?‑‑‑I then got in the car and I felt guilty that she was on the side of the road naked, yes.
So you drove very quickly down the street towards the house where you had last seen her?‑‑‑Yes.
That you meant you reversed out of the driveway?‑‑‑Yes, I did reverse out of the driveway. Yes.
Drove down to where she was?‑‑‑Yes, I did.
And pulled very quickly into the front yard of that house, didn't you?‑‑‑I suppose I did, yes.
Why did you drive like that?‑‑‑I'm not too sure.
You were still pretty angry at her, weren't you?‑‑‑No.
You weren't angry at her?‑‑‑I was - yes - upset as she was laying in the streets naked so I wanted to get her in the car.
You wanted to help her?‑‑‑Yes.
You felt guilty?‑‑‑Yes.
Felt bad?‑‑‑Yes.
And so you asked her to get in the car, and the woman at the house told you, you said, to, 'Fuck off'?‑‑‑Yes.
So you did?‑‑‑Yes (ts 906 ‑ 908).

During that conversation, Edward Mullaley could not hear the deceased in the background. If the deceased had been injured in the way that the accused described, suffering the degree of pain that Dr Houliston described, it is inconceivable that he would have been laying quietly in a moving vehicle, especially with the damage he had sustained to his humerus and tibia.
The accused said to Edward Mullaley:
He said he has got a burn mark on him, maybe a cigarette burn or something like that and that he was bleeding from somewhere, and I knew he was fucking lying, right? (ts 231).
Mr Mullaley said that the accused told him:
I'm going to take him to the DPP (ts 231).
Although that is a quotation from the transcript and indeed what I noted Mr Mullaley to have said, I suspect he meant to refer to the Department for Child Protection (DCP).

A second lie

The accused told Mr Mullaley that the deceased was wrapped up in a rug on the floor of his mate's place (ts 231).
In cross‑examination Mr Mullaley repeated that the accused had said the deceased was burnt and he had blood on him.
When challenged that he did not mention anything about a cigarette in his statement to the police, Edward Mullaley said:
I had enough of the police.
…‑‑‑I'm not going to talk to them (ts 236).
Through the evidence of both Tamica Mullaley and Edward Mullaley, I detected a considerable antipathy to the police owing to the manner in which Tamica Mullaley was treated on the evening of 19 March 2013 when police arrived. Very properly, counsel did not seek to divert the trial into an examination as to whether the police acted appropriately or not. It is sufficient, for present purposes, to say that regardless of the rights or wrongs, Mr Mullaley had strong feelings about the attitude of the police, which may go some way to explaining why he did not mention a cigarette [burn] in his statement to them. He did mention it in proofing to the prosecutors, although much later. Whether or not his recollection that the accused used the word 'cigarette' is correct, I accept his evidence unequivocally that the accused said the deceased had a burn mark on him.
I also accept his evidence that the accused said the deceased was wrapped up in a rug at a mate's place. This was yet another lie told by the accused on the night.
However, even having regard to that circumstance, I am unable to be satisfied that the injuries were burns. It is almost certain that they are burns but in light of the medical evidence I cannot be satisfied beyond reasonable doubt. Dr Cooke did not express such expertise as to unequivocally identify them as burns. Dr Rea and Dr Hilton both worked from photographs. Confronted with the medical evidence, Ms Forrester asked me to consider the whole circumstances which include the comment made by the accused to Edward Mullaley just referred to. It does not carry the matter any further. It is in respect of one mark and cannot be seen as an implied admission that the accused caused other thermal injuries. So while I am virtually certain the marks identified as thermal injuries are burns or scalds, applying the necessary standard of proof I am not satisfied of that fact.
This lack of satisfaction as to the method by which the deceased was injured however makes no difference to my conclusion that the accused deliberately caused all injuries except the hair straightener injury and an earlier fracture identified by Dr Cooke.

The accused caused the injuries

I am satisfied that the accused person and no other deliberately caused the injuries to the deceased. The accused was the only person in charge of the deceased from the time the deceased was handed to him by Shimona Hill late in the evening on 19 March 2013 until he burst into the Fortescue Roadhouse and other people took over attempts to resuscitate the deceased.
I am satisfied that the deceased was uninjured when the accused took charge of him from Shimona Hill. The evidence overwhelmingly establishes that fact and the accused agrees.
On the night before the events in question, following Tamica Mullaley's return to Broome, the family held a small celebration of Edward Mullaley's birthday and, in the way of these things, some photographs were taken. Exhibits 1.1 ‑ 1.4 are pictures taken on that night. Exhibit 1.1 shows the deceased sitting in a high chair wearing a nappy. On his right forearm there is a bandage covering the hair straightener injury. The upper part of his body and his head are clearly visible. Exhibit 1.3 is a close up of the deceased and exhibit 1.4 is another photograph of the deceased but without the bandage. None of those photographs show any of the injuries that were photographed less than 48 hours later at Nickol Bay Mortuary (exhibit 26.1 ‑ 26.12).
When Tamica Mullaley put the deceased to bed at Gerald's house and did she did not notice any bruising or rash, or anything of that nature (ts 180).
Chantelle Dinah, who took charge of the deceased at Whitney Hannivig‑Jones' house when Tamica Mullaley and Amey McKinlay came up for an argument, described the deceased as feverish, like he was teething and thirsty. She gave him something to drink and noticed a little tooth down at the bottom coming through. She also gave him a leg of chicken.
She described the deceased as wearing a little jumpsuit, like a onesie (ts 339). Her evidence does not accord with others in this respect. Tamica Mullaley said he was wearing a singlet and a kimbie (ts 173), which was also Whitney Hannivig‑Jones' observation (ts 241). She could not see any injuries of any kind on him. Ms Zanik said he was wearing a singlet with no sleeves and a nappy (ts 430). Shimona Hill said he was wearing a singlet and coloured shorts (ts 383) and Amey McKinlay said he was wearing a blue singlet and a nappy and she could see no marks or injuries of any kind (ts 272). Chantelle Dinah's difference in recollection makes little difference to her observations which are consistent with others to the effect that the deceased was uninjured.
I completely accept the evidence which I have just summarised that the deceased had no observable injuries other than possibly the hair straightener injury at the time the accused took charge of him.
Further confirmation is not needed but is nevertheless supplied by Ms Zanik, a clinical nurse, who has seen a lot of Indigenous children at Broome Hospital. She described the deceased whom she held for a time:
Yes. He was a fit and healthy young baby.
Have you seen a lot of Indigenous children in your experience at Broome Hospital?‑‑‑Yes.
And comparatively, how did he seem?‑‑‑He looked very cared for. He didn't even have a snotty nose, mucky eyes. He was dressed appropriately. He had no sores or scabs on him. He was healthy, plump (ts 428).
I am satisfied that when the accused brought the deceased into the Fortescue Roadhouse, the deceased had by then sustained almost all of the injuries that were observed by witnesses at the Roadhouse and the subject of Dr Cooke's report. It may be that some of the minor abrasions in the vicinity of the nose and mouth (CC 1.6, 1.7 and possibly 1.9 shown in exhibit 19.10 and 19.12) together with the multiple petechiae over the nose observed by Dr Houliston were the result of the administration of CPR either by the accused or by others at the Fortescue Roadhouse. These are superficial and minor injuries. Nevertheless, that possibility cannot be excluded.
As to the rest of the injuries however, there is no possibility that they were caused by anyone other than the accused. The injury CC3.1, the large area of eroded skin on the sternum, was not caused by the administration of CPR. Observers at the Fortescue Roadhouse noted it at the time.
The accused had sole charge of the deceased during the relevant period. It was not possible for the deceased to have caused his own injuries. While the deceased had some facility, climbing up and down stairs, he was not yet walking. He was standing to walk and holding onto things and walking around things. He could walk in his walker. He was just starting swimming. He was a bit advanced, but he was not walking, although he was crawling (ts 163).
A spiral injury is unusual. Two spiral injuries would be extremely unusual. Coupled with all the other extensive injuries they cannot have been caused accidently.

The accused's explanation is rejected

The accused advanced two explanations to account for most of the deceased's injuries. The first explanation is the deceased falling from the vehicle in the way described.
This explanation cannot, on any view, account for all of the injuries.
The second explanation to account for some of the injuries to the back and buttocks is that the accused laid the deceased briefly on a hot uneven rock.
I completely reject both explanations. I have a low opinion of the accused's credibility. He is quite prepared to lie when it suits him. He lied on the night to Shimona Hill and to Edward Mullaley. Parts of his sworn testimony were evasive. His account of the fall from the car given in the EROI (exhibit 21) cannot be correct because Ms Mullaley never gave him the deceased on the side of the road.
His explanation in cross‑examination is implausible and I reject it.
I reject the accused's explanation for the back and buttock injuries. As the meteorological records show (exhibit 32), it was a very hot morning in the northwest at all relevant locations. The accused was not intoxicated by the morning as any effects of the alcohol and cannabis the night before would have long worn off. The accused on his account stopped for a swim because it was hot. It is inconceivable that he would have laid a naked body on hot rocks without an intention of doing the child harm. Moreover, although the injuries are consistent with a jagged rock, in testimony the accused denied that he laid the deceased on a jagged rock, describing it merely as uneven. There is no evidence of any hot water at the river or elsewhere. If indeed the accused did stop after Pardoo Roadhouse as he says, a matter about which I also have doubt, I reject his explanation of unintentional injury of the deceased in the way he described.

The consequences of rejection of the accused's account

Consistently with the burden and standard of proof the rejection of his explanation does not however inevitably or necessarily convert into proof of the prosecution case. When the explanation is rejected in the circumstances of this case it means that the injuries have no explanation.
So I return to the point that the injuries occurred at a time when the accused had sole charge of a 10‑month‑old child who was not yet able to walk and who required food and nourishment. I also take into account the extensive nature of the injuries from the top of the head to the soles of the feet, their variations in type and location. There is no way that the deceased could have sustained all these injuries or more than a few superficial injuries through his own efforts. Rejection of the accused's account means that there is no evidence that any of the injuries were accidental. The number and nature and location of all the injuries cannot be explained by a series of accidental events over a course of 15 hours, many of which were necessarily spent being driven in the LandCruiser.
I am satisfied that the accused was the only person who could have inflicted injuries to the deceased. I am also satisfied that the accused deliberately inflicted the injuries on the deceased. There is no other reasonable possibility open on the evidence.

The anal injuries

The injuries to the genitals and anus CC 6.1 and 6.2 (penis, scrotum) and 7.1 ‑ 7.4 (anus) together with Dr Cooke's histological examination indicating bruising for some distance along the anal passage, I am satisfied must have been deliberately inflicted.
Consequent upon my rejection of the accused's explanation, there is no evidence that the deceased was thrown from the vehicle or was laid on a hot rock of uneven surface. Moreover, even if I had not rejected those explanations, there is no plausible explanation for the injuries other than a deliberate penetration.
Mr Myers suggested a scenario to Dr Hilton whereby the injuries were consistent with landing on a rock after being thrown from the vehicle. However, it was clear that Dr Hilton did not think much of the proposition describing the potential instrument as 'the mythical elongated protuberant rock'. In cross‑examination he said:
In contemplating that sort of - the anal injury, it would have to be a fixed, narrow, long object upon which the child fell exactly and precisely?‑‑‑Yes.
At the same time as tumbling in order, for example, to cause the abraded injury down the leg and on the rest of his body?‑‑‑Well, not all - not at the same instant in time but as part and parcel of this. Yes.
You cannot conceive of any circumstance in which he could have suffered the genital injuries, the anal injuries and the abraded injuries at the same time, can you?‑‑‑In the same instant of time?
Yes?‑‑‑I cannot envisage that, no (1002 ‑ 1003).
Nor is the explanation that the deceased somehow in moving himself on the rock and falling onto a protuberance any less fanciful. Even if I had not rejected completely the accused's explanation about putting the deceased on a hot rock, I would have, in any event, rejected any possibility that the deceased had, as it were, accidentally injured himself in changing position on the hot rock. The probabilities are that at this stage the deceased had sustained the two very serious spiral fractures which would have grossly limited his ability to move at all. The accused consistently described the deceased's behaviour on the journey as sleepy, sleeping or listless. The accused did not give evidence that the deceased had moved his position on the rock in any event. He said he lifted the deceased from the rock shortly after he had placed him there.
I am satisfied that the accused deliberately penetrated the deceased's anus. Mr Myers submitted that it would be expected to find some implement in the car that could be associated with the penetration and some trace of the deceased's DNA on it. That does not follow. There are many possibilities for penetration, including a finger. I cannot be satisfied, and do not need to be satisfied, as to the precise means by which the deceased's anus was penetrated. I am satisfied that it was penetrated by the accused and necessarily that it was a deliberate penetration.
Although it is not necessary to decide why the accused penetrated the deceased, the motivation is more likely to have been a desire to harm the child in every way possible, rather than an overt sexual motive.

The inflicted injuries were a substantial cause of death

The infliction of deliberate injuries on the deceased does not make the accused guilty of the crime of murder. A finding of infliction of deliberate injuries on the deceased and a rejection of any question of accident is a finding that I am satisfied that the accused unlawfully killed the deceased if his actions were a significant contributing cause of death. I accept Dr Rea's evidence:
The extent of the skin loss that this particular child sustained, would you consider in the absence of medical treatment those injuries to be likely to endanger his life?‑‑‑I think in the absence of medical treatment, yes.
McKECHNIE J: Sorry. In the absence - - -?‑‑‑In the absence of medical treatment: the absence of dressings, antibiotics and IV fluids.
FORRESTER, MS: IV fluids, was that?‑‑‑Intravenous fluids.
If he had been medically treated within a reasonable amount of time of suffering those injuries - bearing in mind that they may have been sustained at different times, but if he had been medically treated within, for example, 12 hours of sustaining - sorry. I will start that again. If he had received medical treatment within, say, three hours of sustaining those injuries, would you have expected him to survive?‑‑‑Within three hours?
Yes?‑‑‑Yes (ts 807).
In cross‑examination:
Dr Rea, just in relation to that last point, if the child had received medical treatment, say, eight to 12 hours later or, say, within 20 hours of him receiving the injuries, what would be your prognosis then?‑‑‑It depends on a number of factors. It would depend on the condition of the child prior to the injury, the hydration status of the child - so whether or not he was previously well-hydrated - but injuries of this size in the environment described in a young baby potentially dehydrated, the prognosis would be guarded, I think, at best. It's difficult to say exactly.
All right. So you're not really able to say?‑‑‑I think this baby would be gravely ill and would require an intensive care unit bed and then from that, with the best medical treatment in the world, one would hope that they would survive, but it's not a given.
In addition to the very extensive skin loss, the deceased was suffering pain from two spiral fractures, and from the skin loss itself. The deceased was in a vehicle for much of the time apart from occasional short dips in the water. The deceased was left alone while the vehicle was parked outside Karratha Centro for some time. The accused said in evidence that the fan was on and he thought the two front windows were wound down (ts 950). He could have taken the deceased into the air‑conditioned shopping centre.
I reject his assertion that he did not know whether the shopping centre was air conditioned. Practically, of course, he was unable to do so because by that stage I am satisfied the deceased had sustained many of his injuries which were visible and taking the child inside would have excited comment. However, it was the accused's choice to add to the stress on the deceased by leaving him in the vehicle. He left the deceased in the vehicle again when he went to the Thirsty Camel liquor store, although from the CCTV footage (exhibit 34) this was a shorter period.
When the accused was parked at Miaree Pool, there is no evidence that the air‑conditioner was on and it was at that stage very hot. Within a space of 15 hours the deceased went from being a normal, well‑nourished and cared for healthy infant to death. Every action of the accused contributed to that death. Even though the precise medical cause of death is unascertainable, it is an irresistible inference from all of the circumstances that the accused and no other caused the death of the deceased.
This is sufficient to explain my conclusions for finding the accused caused death through what I described as route one.
The evidence satisfies me that the accused caused death through his failure to provide the deceased with necessaries of life and is held to have caused the consequences.
The accused voluntarily took charge of the deceased when he insisted that Shimona Hill give him over under the pretext that he would be taking the deceased to Edward Mullaley.
Obviously a 10‑month‑old child is unable to withdraw himself from that charge. Nor could a 10‑month‑old provide himself with the necessaries of life such as food, water and importantly, medical intervention. The accused on his own account and necessarily on the facts knew at some stage that the deceased was seriously injured by way of skin loss. He did nothing about this until it was too late. He did not take the deceased to Broome Hospital. He did not take the deceased to Port Hedland Hospital. He did not take the deceased to Karratha Hospital. His explanation for not taking the deceased to this last hospital is unbelievable.
The deceased needed urgent medical attention and the accused conspicuously failed to provide it probably because he knew the trouble he would be in.
Not every breach of duty under the Code s 262 will amount to a criminal offence. By analogy with the duties imposed under Code s 265, the breach of duty must be a criminal breach; that is, the breach must be such as to go well beyond compensation between citizens and be so serious as to require a criminal punishment by imprisonment.

I am unable to determine when the various injuries occurred. But whenever they did the accused's duty to seek medical assistance arose. By the time the fishermen saw the deceased at Miaree Pool he had apparent injuries to his legs.
It is highly likely that the injuries occurred before Karratha which is why the accused did not take the deceased into Karratha Centro.
The detailed description of the injuries means that they cannot have all occurred at Fortescue River just prior to the accused seeking help at the Fortescue Roadhouse.
I am satisfied that the accused breached his duty to provide the necessaries of life to the deceased in such a gross degree as to render him liable to punishment.
By this alternative second route then I find the accused is liable for the death of the deceased.
Dr Rea's evidence was that within three hours medical intervention would likely have been successful.

The accused's intention

In order to sustain a conviction for murder I must be satisfied that the accused either intended to kill the deceased or intended to do the deceased life threatening injury.
While the accused would be guilty of murder if I am satisfied as to either of these intents, as I will also be the sentencing judge, it is appropriate that I make findings about the actual intention of the accused.

Intoxication

The accused's intoxication on the night of 19 March 2013 could well have contributed to his anger and violence. However the deliberation of his actions that night, his ability to drive around Broome and then drive an extended distance satisfies me that he was not so affected by cannabis and alcohol as to be incapable of intention to do life threatening injuries to the deceased.

Intention to kill

I am not satisfied that the accused had an intention to kill the deceased. The reasons I am not satisfied include his telephone call to Ms Derschow at Mullewa in the early hours of the morning. They also include the accused's visit to Coles in Karratha included obtaining some items which may have been for the benefit of the deceased including choc milk. He said he tried to feed the deceased an orange and may have done so.
His actions at the Fortescue Roadhouse both as given in testimony by witnesses such as Mr Duff and observed on the CCTV footage (exhibit 34), together with his subsequent words and actions in the ambulance attested by Mr Altadonna are indicative of a person who did not intend death. Coupled with the accused's reaction at Karratha Police Station when advised of the death there is the reasonable possibility that death was an unforeseen result of the accused's deliberate actions. That being so explains why I am not satisfied he intended to kill the deceased.

Intention to do life threatening injury

I am satisfied that the accused intended to cause injuries of a life threatening nature to the deceased.
Although the Criminal Code (WA) s 279 speaks of 'an injury', the crime of murder can be committed if an accused causes one or more injuries with an intention that the victim will suffer a life threatening injury. If necessary resort can be had to the Interpretation Act 1918 (WA) where a singular can include the plural. The accused repeatedly injured the deceased in a variety of ways, including breaking bones, and inflicting many wounds that caused extensive skin loss.
The accused had a motive to injure the deceased who was small and vulnerable as the accused well knew. That motive was anger at Tamica Mullaley directed at her child. Some of the injuries if inflicted on an adult might be equivocal as to intention. When inflicted on a baby with a motive and in circumstances where the deceased had been deliberately driven away from Broome and his mother, the only conclusion is that the accused intended to take the deceased and inflict injuries on the deceased which objectively were life threatening.
In my consideration of this aspect of the case I have not in any way imputed to the accused the traits of an ordinary and reasonable person. I have focused entirely on whether the prosecution has proved that the accused subjectively intended to cause life threatening injury to the deceased over the period when the deceased was in his sole care. For those reasons, which include the number, nature, extent of injuries, and the fact that they could not have occurred all at the one time, I am satisfied that the accused is guilty of murder.

Sexual assault

The medical evidence unanimously is of the view that the deceased's anus was penetrated by some object. This is abundantly supported by the observation of the fissures or cracks around the anus, the injury near the anus and importantly by the internal bruising found by Dr Cooke on histological examination. The object which caused the penetration remains unknown but I am satisfied that the accused penetrated the deceased's anus either with some part of his body or an object. He did so as part of his overall intentional infliction of injuries upon the deceased.
I am satisfied that the deceased was in a de facto relationship with Ms Mullaley at the time. This conclusion was not really challenged by Mr Myers.
A de facto relationship is defined in the Interpretation Act as follows:
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential -
(a)the length of the relationship between them;
(b)whether the 2 persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
(3)It does not matter whether -
(a)the persons are different sexes or the same sex; or
(b)either of the persons is legally married to someone else or in another de facto relationship.
(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.
(5)The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.
Whether a relationship is de facto is a question of fact and takes account of all the circumstances but clearly the purpose of the Criminal Code is to provide for a greater punishment where assault occurs in familial circumstances. This is one such case. Addressing the factors in the Interpretation Act s 13A(2), I find:
(a)the accused and Tamica Mullaley were in a familial type relationship from the time he went to Broome in late 2012;
(b)the accused and Tamica Mullaley resided together in two residences, the second being 17 Hamersley Street, Broome;
(c)they shared the house together with Tamica Mullaley's two children;
(d)there is no direct evidence of a sexual relationship between the two. However, one can be inferred from the argument about the accused's alleged unfaithfulness with Vicki;
(e)there is no evidence of any degree of financial dependence or interdependence between them;
(f)there is no evidence of the ownership of property. However, Mr Edward Mullaley had given Tamica Mullaley the use of the LandCruiser which both drove as necessary and used for transporting the children. It was effectively shared property;
(g)although it seems clear that on the evening of 19 March 2013, for whatever reason, the accused regarded the relationship as over, he had moved to Broome with the intention of finding work at Rio Tinto (which in the event did not come to pass), had worked intermittently and had he obtained work, I am satisfied that there was a degree of mutual commitment by them to a shared life in Broome;
(h)the accused took part in the care of each of Tamica's children. Amongst other things, he took them swimming. Significantly, he would feed and change the deceased as necessary;
(i)Edward Mullaley and others in Broome regarded them as a couple, referring to the accused as Tamica Mullaley's partner (ts 222). Amey McKinlay referred to the accused as Tamica Mullaley's partner (ts 271), as did Chantelle Dinah (ts 340). Tellingly, the argument that preceded the significant events of 19 March 2013 concerned whether or not the accused had been unfaithful to Tamica Mullaley with another woman.
I am satisfied that the accused was in a de facto relationship and, as a consequence, the deceased is correctly defined as a de facto child under the Criminal Code s 329. I am satisfied that the accused sexually penetrated the deceased. The deceased was his de facto child. He is therefore guilty on count 2 on the indictment.

Details

AGLC: The State of Western Australia v Bell [No 3] [2014] WASC 341
Case: [2014] WASC 341
Decision Date: 26 SEPTEMBER 2014

CaseChat Overview and Summary

In the matter of the State of Western Australia versus Bell, the case was heard by the Supreme Court of Western Australia. The appellant, Bell, stood accused of the murder of a woman, as well as charges of sexual assault and failing to provide the necessaries of life. Bell's defence hinged on the argument that the death of the woman was an accident, and that the events leading up to it were influenced by intoxication and not his deliberate intent. The court was required to determine whether the prosecution had proven the elements of the offences beyond reasonable doubt, with particular focus on the causation of death and the nature of the relationship between Bell and the deceased, as well as the role of intoxication.

The central legal issues involved establishing whether the death was a result of an accident or if Bell's actions amounted to murder. The court had to consider whether Bell's intoxication at the time of the incident negated his intent to commit murder, as well as determining if the relationship between Bell and the deceased qualified as a de facto relationship for the purposes of the charges. Furthermore, the court needed to assess whether Bell's failure to provide the necessaries of life was a contributing factor to the woman's death.

The Supreme Court held that the prosecution had proven the elements of murder and sexual assault beyond reasonable doubt. The court rejected Bell's argument that the death was accidental, finding that his actions directly caused the woman's death. The intoxication did not absolve him of responsibility, as it did not negate his intent to commit the acts that resulted in the woman's death. The court also found that the relationship between Bell and the deceased qualified as a de facto relationship, and that his failure to provide the necessaries of life contributed to the woman's demise. Therefore, the appeal was dismissed, and the convictions and sentences imposed by the lower court were upheld.

Orders