Toohey v The Queen

[2020] NSWCCA 166

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Toohey v R [2020] NSWCCA 166

Hearing dates:

18 March 2020

Date of orders:

17 July 2020

Decision date:

17 July 2020

Before:

Leeming JA and Rothman J at [1]
N Adams J at [32]

Decision:

(1) To the extent necessary, extend the time within which to appeal.

(2) Grant leave to appeal.

(3) Appeal allowed.

(4) Quash the finding of guilt made by the District Court on 9 November 2018.

(5) Order that there be a new trial.

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse with a child under 10 years of age – extensive medical evidence – post-mortem findings – judge alone trial – onus of proof – adequacy of reasons – interpretation of certain injuries – unreasonable verdict

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), 15A

Crimes Act 1900 (NSW), s 61HA, s 66A(2)

Criminal Appeal Act 1912 (NSW), s 5(1), s 5D

Criminal Procedure Act 1986 (NSW), s 131, s 132, s 133

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

Alchin v Daley [2009] NSWCA 418

Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

CJ v Regina [2012] NSWCCA 258

Decision restricted [2017] NSWSC 846

DL v The Queen [2018] HCA 26; 92 ALJR 636

Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699

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

Fleming v The Queen (1998) 197 CLR 250; [1999] HCA 68

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

Hopgood v R [2019] NSWCCA 246

Lane v R [2013] NSWCCA 317

Mifsud v Campbell (1991) 21 NSWLR 725

O'Leary v The King (1946) 73 CLR 566; [1946] HCA 44

R v Toohey [2019] NSWCCA 182

R v Toohey (No 2) [2017] NSWSC 1217

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Towney v R [2018] NSWCCA 65

Trevor Essex v R [2013] NSWCCA 11

W v R [2014] NSWCCA 1

Wade v R [2018] NSWCCA 85

Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174

Wood v The Queen (2012) 84 NSWLR 58; [2012] NSWCCA 21

Texts Cited:

Geoffroy Lorin de la Grandmaison, Laurence Watier, Jean-Claude Alvarez and Philippe Charlier, ‘Rectal Wall Hemorrhage in Hanging Autopsy Cases’ (2012) 14 Legal Medicine 172-176

Friedrich Schulz , Hansjörg Schäfer, Klaus Püschel, Michael Tsokos, Bernd Brinkmann and Claas T Buschmann ‘Bowel Wall Hemorrhage After Death by Hanging’ (2011) 125 International Journal of Legal Medicine 403-410

Category:

Principal judgment

Parties:

Brendan Toohey (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr J Trevallion with Ms N Bennett (Applicant)
Mr G Newton (Respondent)

Solicitors:
Archbold & Co (Applicant)
NSW Solicitor for Public Prosecutions (Respondent)

File Number(s):

2014/108477

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

05 July 2019

Before:

Bennett SC DCJ

File Number(s):

2014/108477

Judgment

1. LEEMING JA and ROTHMAN J: We have had the advantage of reading the judgment of N Adams J, which comprehensively addresses the background, the evidence and the submissions in this appeal against conviction. We agree with her Honour that there should be a grant of leave, the appeal allowed, the finding of guilt (which has the same effect as a jury’s guilty verdict) by the District Court announced on 9 November 2018 quashed, and a new trial ordered. Her Honour’s judgment enables us to be concise.

Preliminary matters

2. The count of sexual intercourse with a child under the age of 10 years in circumstances of aggravation contrary to s 66A(2) of the Crimes Act 1900 (NSW) came before the District Court after being severed from the indictment for murder which was tried in this Court. The applicant elected to be tried by the District Court constituted by a judge sitting alone, a course not opposed by the Crown. The applicant was arraigned and pleaded not guilty on 9 August 2019. The trial thereafter took place over four days spread over some six weeks: on 7 September, 14 September, 20 September and 19 October 2018. Some two and a half weeks later, on 9 November 2018, the trial judge announced that “I am satisfied that the Crown has discharged its burden of proof and I propose to find the offence proved”. No reasons were given at that time. The JusticeLink record of that day includes “The accused is found guilty”.

3. Section 133(1) of the Criminal Procedure Act 1986 (NSW) provides that a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person, and that “[a]ny such finding has, for all purposes, the same effect as a verdict of a jury”.

4. The matter was stood over for sentencing, originally to 23 November 2018. It was thereafter stood over to February and then March 2019. On Tuesday 5 March 2019, four months after the judge had found the applicant guilty, when the matter was listed for sentencing, the primary judge began to deliver oral reasons for his decision. His Honour recognised at the outset that he would not be able to complete his reasons on that day. The matter was adjourned until 2pm the following day. However, the balance of the reasons was delivered on Thursday 7 March 2019. The appeal papers do not disclose why the hearing on the Wednesday did not proceed.

5. The reasons delivered on the first day included directions as to the elements of the offence, including as to the Crown proving beyond reasonable doubt the absence of consent. The Crown pointed out, immediately before the adjournment, that consent was not an issue, and his Honour corrected himself. The reasons on the second day addressed the conflicting medical expert evidence.

6. One important point should be made at the outset. We would confidently infer that the reason that the trial extended over four separate days in a six week period, and that reasons were given over two days some four months after the decision was announced, was the need to accommodate other proceedings in a very busy court. It is also plain from the transcript of the four days of the trial that his Honour was constantly dealing with applications in other matters, during which the trial of the s 66A offence was adjourned. On the morning of each of the first and second days, the matter was stood in the list. On the second day, his Honour advised:

“I’ve got a judgment to deliver, I’m just going to call through this list and then I’ve got a judgment to deliver and I think I’ve got one sentence, some – a call up for breaching a CSO, that will take me some little time.”

On the third day, the matter was again stood in the list to be returned to “as soon as I call through these mentions”. On the fourth day, the matter was stood in the list.

7. Appellate courts regularly recognise the pace of litigation in the District Court, and make allowances on that account. What emerges from the transcript of this trial well illustrates the difficulties confronting judges of that court.

8. But his Honour was conducting a judge alone trial. A jury would have heard the entirety of the evidence, the closing submissions of the parties and the summing up by the judge (including the directions with which they were to comply) in a much more compressed period. A jury would thereupon have retired to consider their verdict, without interruption or distraction.

9. The discontinuous nature of the trial is of concern, but as presently advised we see nothing per se wrong with that course. However, the announcement of the outcome, unaccompanied by any reasons for some four months, gives rise to concerns of a different nature.

10. Subsections 133(2) and (3) of the Criminal Procedure Act impose obligations upon a judge trying criminal proceedings without a jury:

“(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.”

11. It is clear that the reasons must include “the principles of law applied by the judge”, and that the obligation upon the judge in s 133(3) to take any warnings into account must not only be done, but be seen to be done. In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, the High Court said of these provisions (then numbered ss 33(2) and (3)) at [30]-[32]:

“The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.

Finally, there may be a breach of s 33(3) with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 33(3) obliges the judge to take the particular warning into account.

The obligation imposed by s 33(3) ‘to take the warning into account’ is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law” (footnote omitted).

12. It is to our minds problematic, to say the least, to see how the requirement to take warnings into account in reaching a decision is satisfied when the warning is given four months after the decision was reached. The section arguably contemplates that the “finding” of guilt which by s 133(1) is taken to have the same effect as a jury’s a verdict will be included in a judgment which complies with s 133(2) and (3). Moreover, the purpose of s 133(3) is to ensure that the finding is reached, and is seen to be reached, in accordance with the same warnings which would be given to a jury. That purpose is subverted where, as here, the finding precedes the warnings.

13. Further, from time to time, judges will make errors in the directions given (whether to juries or to themselves). For that reason, it is not uncommon for counsel to be invited to comment on the form of proposed directions, and to be asked (in the absence of the jury) whether anything should be corrected. It was entirely proper for the Crown to correct the trial judge’s direction concerning consent on 5 March 2019. But it also serves to emphasise the artificiality of the process, which in essence amounts to correcting directions to be applied in making a finding of guilt or innocence which in fact, as it happens, had already been made the previous November.

14. In short, while we are conscious of the demands placed upon judges of the District Court, and the artificiality involved in aspects of judge-alone trials, we are concerned that what occurred in this trial may have departed from the requirements imposed by s 133. However, no such complaint was advanced in this appeal, and we say nothing more of it.

15. We should also say something about delay. Reasons for the finding of guilt were given in March 2019. It is not clear when the transcript was made available to the parties. However, a notice of appeal was only filed on 6 December 2019. Within the intervening time, a Crown appeal was heard on 5 July and determined on 9 August 2019: R v Toohey [2019] NSWCCA 182. The increased sentence of 6 years and 9 months, with a non-parole period of 4 years and 6 months, was backdated to 9 March 2016.

16. The consequence was that by the time the notice of appeal was filed, (a) this Court had already heard and determined a Crown appeal against sentence, and (b) only ten months of the (increased) non-parole period remained unserved. With the benefit of hindsight, it is unfortunate that this appeal against conviction was not commenced sooner than it was.

Grounds 1 and 2

17. Turning to the grounds of appeal, there is with respect force in N Adams J’s observation that there is substantial overlap between grounds 1 and 2. The real complaint underlying ground 2, barely if at all advanced in writing, but at the forefront of the applicant’s oral submissions, was that despite rejecting each of the four hypotheses consistent with innocence, the primary judge failed to address whether, as the defence experts had contended, there was some other unknown cause of the congestion and submucosal bleeding:

“ADAMS J: Can I ask you this because it might be of assistance to commence with ground 1? Is it conceded from your perspective that the only reasonable scenarios inconsistent with guilt were the four that his Honour identified?

TREVALLION: No, and this is the problem, the problem was that Professor Duflou, for example, on a number of occasions said, paraphrasing, it’s difficult to explain this injury, in a lot of ways it doesn’t make sense. It doesn’t make sense that you would see bruising, or bleeding into the sub-mucosa, without there being an injury to the surface of the mucosa.

Professor [Duflou] said that while he didn’t think some of the scenarios that were alternate hypotheses put forward by Professor Hilton were likely, he said that they weren’t impossible, and that was the bleeding during the agonal phase, he said that that was not impossible.

He also said, and I can take your Honours to the page references if need be, that strange things can happen during the peri-mortem period, or during the agonal phase of death, and that sometimes they just can’t be explained. He also went on to say that, in his view, there wasn’t enough evidence to be able to come to a conclusive view.

In that sense the categories, or the hypotheses, weren’t really close[d] because there is, in a sense, another one of which we can’t really be sure.”

18. To the extent that this was resolved, it was resolved only by the preference to the evidence of Dr Marks and Professor Lyons, which was the subject of ground 2.

19. In [221] of her reasons, N Adams J has summarised the reasoning process upon which the primary judge relied. That process of reasoning does not suffice to explain the wholesale acceptance of the evidence of Dr Marks and Professor Lyons, and the rejection of the conclusions Professor Duflou and Professor Hilton drew from the absence of injury or tearing to the mucosa.

20. The point was reiterated orally:

“Professor Duflou’s main point was that, in circumstances where there is no injury to the mucosa, it would be very unusual to find bleeding to the sub-mucosa by means of force being put on the mucosa.”

21. The Crown accepted, candidly, that the lack of laceration or tearing to the mucosa was “clearly a central issue as far as the medical evidence is concerned”. Confronted by the absence of reasoning in the judgment, the Crown took the Court – at some length – to occasions in the transcript of the hearing when the primary judge was alive to the issue, which led to this exchange:

“LEEMING JA: What do we get out of this ... attention by the trial judge to these issues six months before reasons are provided?

NEWTON: Your Honour, I suppose I’m just to some degree responding to my friend who said this witness didn’t talk about it and the judge didn’t consider it. I concede it’s not specifically in the reasons ...”

22. The Crown accepted, properly, that the verdict depended upon the rejection of the opinions of Professor Duflou on this issue. The reasons give no explanation for why that occurred.

23. In Hopgood v R [2019] NSWCCA 246 at [47], Johnson J said, writing for this Court:

“Reasons for verdict following a Judge-alone trial must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached. The trial Judge must expose his or her reasoning process by identifying the principles of law applied and the findings of fact made and the reasoning process by which those matters are linked: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [28]; AK v The Queen (2008) 232 CLR 438; [2008] HCA 8 at [85]. In determining an appeal against conviction from a trial by Judge alone, this Court should read the reasons of the trial Judge fairly and as a whole.”

24. It is not necessary in order to resolve this appeal to address in any detail the principles governing the adequacy of reasons in a judge alone trial. In many cases, there may be a question of degree. However, for present purposes it is sufficient to observe that Professor Duflou’s opinions about the absence of injury to the surface of the mucosa was not some minor peripheral issue. Rather it went directly to the ultimate finding of guilt in a circumstantial case; cf DL v The Queen [2018] HCA 26; 92 ALJR 636 at [34]-[51]. And it is no answer to say that the primary judge was “attending to the issues in a careful and dedicated way” during the trial; the important obligation imposed by s 133(2) requires attention to be given to the reasons: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [111]; see also at [14]-[16].

Ground 3

25. We would not uphold ground 3. This ground was barely developed. The applicant’s written submissions in support of this ground occupied 2 pages, the majority of which was devoted to extracts of uncontroversial statements of principle. It was largely undeveloped in oral submissions.

26. The principal submission advanced was “the fact that the four expert witnesses, all of whom were accepted by the Court as having the requisite expertise, held different views as to the cause of the bruising. It is submitted that this alone was sufficient to constitute reasonable doubt”. We do not agree. The position is no different from any other trial where different witnesses give different evidence on an issue. It is regularly open to the tribunal of fact to accept the evidence of one witness, lay or expert, insofar as it is inconsistent with that of another witness, and thereby make findings of primary facts which entitle it to be satisfied of the elements of the offence to the criminal standard.

27. It was also put that the primary judge (a) erred in placing reliance on the findings of fact made by Fagan J (before whom the trial for murder proceeded) and (b) might have misunderstood part of the defence case. Those submissions do not suffice to establish that the verdict was unreasonable. It was open, upon the whole of the evidence, for the District Court to be satisfied beyond reasonable doubt that the applicant was guilty of the s 66A offence.

Orders

28. An extension of time, if one is required, was not opposed, and to the extent necessary one should be granted. The appeal should be allowed and the finding of guilt quashed.

29. The applicant submitted that success on ground 2 coupled with failure on ground 3 should lead to a new trial. The Crown agreed (“I’ve thought about that one, your Honour, and I’ve thought about the proviso, but I think the difficulty would be that it would be something that would probably go to the root of the decision ...”). The concession that the proviso was inapplicable was properly made, consistently with what was said in AK v Western Australia at [59] and [110].

30. It was common ground that on the conclusions we have reached this Court should order a new trial. That is so notwithstanding that the applicant has served the majority of the sentence, in accordance with what was said in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [103]-[104]. Whether that trial occurs is a matter for the prosecuting authorities.

28. We agree with the orders proposed by N Adams J.

29. N ADAMS J: At 11.03am on 2 April 2014, the applicant, Brendan Toohey, arrived at the Emergency Room at Blayney Hospital seeking help for an unconscious eleven-month-old child. The child was pronounced dead at 12.40pm. She cannot be named having regard to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). I propose to refer to her as “the deceased”. She was the child of the applicant’s partner (“Ms A”).

30. The post-mortem report disclosed that the deceased had died of blunt force head trauma atypical of a simple fall. It also found that she had suffered bleeding into the rectal mucosa and submucosa consistent with the introduction of a foreign object into the rectum. I propose to refer to this bleed as “the rectal haemorrhage”.

31. The applicant was charged with murder and sexual intercourse with a child under the age of 10 years, contrary to s 66A(2) of the Crimes Act1900 (NSW). His trial was listed before Fagan J in the Supreme Court sitting in Bathurst. On 21 June 2017, Fagan J severed the indictment and the trial proceeded on a count of murder alone: Decision restricted [2017] NSWSC 846. On 6 July 2017, the jury returned with a verdict of guilty to manslaughter.

32. On 8 September 2017, the applicant was sentenced by Fagan J to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months. That non-parole period expired on 18 October 2018 and the head sentence will expire on 8 October 2021: R v Toohey (No 2) [2017] NSWSC 1217.

33. After the indictment was severed, the s 66A(2) count was transferred to the District Court. The applicant elected to have his trial heard by a judge sitting alone pursuant to s 132 of the Criminal Procedure Act1986 (NSW). This was not opposed by the Crown and the matter came before Bennett SC DCJ, sitting in the District Court at Bathurst, on 30 July 2018.

34. It was proposed that the hearing would proceed on various days during the Bathurst sittings but, unfortunately, that could not occur. The matter was stood over for trial at the Parramatta District Court on 7 September 2018 before Bennett SC DCJ. By agreement, material was tendered on 9 August 2018 for his Honour to read prior to the trial commencing.

35. The trial commenced on 7 September and was then stood over for another hearing day on 14 September 2018. After that day, it was stood over for another hearing day on 20 September. The fourth and final day of the trial was 19 October 2018, at which time final submissions were made. On 9 November 2018 Bennett SC DCJ announced that he was satisfied that the offence had been established and proceeded to hear submissions on sentence. His Honour subsequently delivered his reasons for finding the applicant guilty over two days on 5 and 7 March 2019. These Reasons were delivered nearly four months after the verdict.

36. On 7 March 2019, the applicant was sentenced to a term of imprisonment of 4 years and 6 months, commencing on 9 March 2016 and concluding on 8 September 2020, with a non-parole period of 3 years concluding on 8 March 2019. The Director of Public Prosecutions appealed against the inadequacy of this sentence pursuant to s 5D of the Criminal Appeal Act1912 (NSW) and the matter came before this court on 5 July 2019. On 9 August 2019, the appeal was allowed and the applicant was re-sentenced to 6 years and 9 months imprisonment with a non-parole period of 4 years 6 months: R v Toohey [2019] NSWCCA 182. This new sentence was imposed to commence on 9 March 2016 and expire on 8 September 2020, with a balance of the term of 2 years 3 months commencing on 9 September 2020 and expiring on 8 December 2022. The applicant is eligible for release on parole on 8 September 2020.

37. The applicant now appeals against his conviction on the sexual assault charge under s 5(1) of the Criminal Appeal Act. He relies upon the following three grounds of appeal:

1. Ground 1:   The trial judge resolved issues by posing four questions which reflected a misunderstanding of the defence case and reversed the onus of proof.

2. Ground 2:   The trial judge gave inadequate reasons for his findings, and particularly gave inadequate reasons for rejecting the evidence of Professors Hilton and Duflou in favour of the evidence of Professor Lyons and Dr Marks.

3. Ground 3:   The verdict was unreasonable and could not be supported by the evidence.

The evidence at trial

41. Despite the complexity of the issues for determination, the trial itself only ran for four days with just over two days of viva voce evidence. The reason for the shortness of sitting days is that a significant amount of material was tendered to the trial judge by consent. This included trial transcript and exhibits from the trial before Fagan J, all defence expert reports and Fagan J’s finding of fact in his Remarks on Sentence. Although the applicant continued to deny guilt in relation to the manslaughter conviction, it was agreed that Bennett SC DCJ could have regard to the facts found by Fagan J, consistent with the jury’s verdict, on the manslaughter count, as it provided context in which the Crown alleged that the sexual assault was committed.

42. I propose to first summarise the post-mortem report and the applicant’s ERISP before turning to summarise the transcript evidence tendered before Bennett SC DCJ. I will summarise the expert opinion evidence pertaining to the rectal haemorrhage in some detail. Professor Tim Lyons and Dr Susan Marks gave evidence for the Crown whereas Professors John Hilton and Johan Duflou gave evidence for the applicant. As will be seen below, these experts were able to agree on some matters but disagreed on others. Significantly, the defence experts did not agree that the rectal haemorrhage was necessarily an injury as opposed to an abnormality of some sort.

The post-mortem report

43. The post-mortem was conducted by Professor Tim Lyons on 18 May 2017. After summarising the factual circumstances of the death, he provided a “Pathology Summary”, which was as follows:

“PATHOLOGY SUMMARY:

1. BLUNT FORCE HEAD TRAUMA:

SCALP BRUISING AND ABRASIONS

CEREBRAL OEDEMA

SUBARACHNOID AND SUBDURAL HAEMORRHAGE

PERIOPTIC NERVE BLEEDING

BLEEDING AROUND 1^ST CRANIAL NERVE AT THE CRIBRIFORM PLATE

2. BLEEDING INTO RECTAL MUCOSA AND SUBMUCOSA

3. SMALL AREAS OF BRUISING TO THE TORSO AND UPPER LIMBS

4. BLEEDING INTO THE THIRD LEFT LATERAL INTERCOSTAL SPACE”

44. Professor Lyons summarised his findings and indicated that the deceased had been the victim of several applications of blunt force trauma. In terms of the rectal injury, he stated:

“3. There was fresh mucosal and submucosa haemorrhage to the rectum and no evidence of a vital reaction. A Perl’s stain for iron was undertaken and this was negative suggesting there had not been previous episodes of trauma to the rectal mucosa. The injury pattern suggests recent trauma due to introduction of a foreign object into the rectum. The features seen are not due to post mortem artefact. In my opinion this is a non-accidental injury.

4. The hymen was observed to be intact and external evidence of the female genitalia showed no evidence of trauma.”

45. Professor Lyons also noted that tissue was taken for histology and there were oral, anal, labial and low vaginal swabs for sexual assault studies. When discussing his findings after an internal examination, Professor Lyons noted that, upon examination of the anus, the anal sphincter appeared patulous and the anal mucosa could be seen projecting from the anus from the 9 o’clock to 3 o’clock position. When the anus and rectum were removed from the body, the perianal mucocutaneous junction appeared normal. He further noted that “the first two centimetres of rectal mucosa appeared normal. The rectal mucosa from 2-5 cm circumferentially was bright red in colour and appeared intensely congested.”

46. In a section titled “Microscopic Examination Of Tissue”, Professor Lyons again noted the intense congestion of the mucosa. He added that “[m]icroscopically, there was recent, prominent circumferential haemorrhage (collections of red blood cells) into the mucosa and submucosa.” He stated that this was a very recent injury because there was no inflammatory response.

Summary of ERISP

47. The applicant was interviewed by police at 2.55pm on 4 April 2014. This was prior to the post-mortem report being received and, thus, the applicant was not asked about the anal lesion. He did not participate in any subsequent ERISP after the post-mortem results were available. Nor did he give evidence at trial. He denies the allegation.

48. In his ERISP, the applicant indicated that the day before the incident causing the deceased’s death he had been visiting the deceased’s mother in Bathurst in hospital. According to his account, by 7pm that night he would have been on his way home by car. It was about 8 or 9pm when he arrived at the property that he shared with the deceased’s mother and her two other children (aged 8 and 10). He stated that the deceased was restless the night before and she had slept in his bed, although she usually had her own room. He stated that they had fallen asleep between midnight and 1am.

49. The next morning, at around 9:30-10am, the applicant stated that he received a telephone call from the deceased’s mother asking him to collect her from hospital. He then went to the backyard of the property to retrieve clothing from the clothesline.

50. The applicant told police that he placed the deceased on a trampoline which was about as high as his waist. According to his account, she fell off the trampoline and hit a septic concrete tank while he had his back turned. He said that she cried, he picked her up and she was not breathing properly. At this point, he stated that she had “a few bruises around her face”.

51. When further questioned about this, the applicant indicated that he had actually seen the moment when the deceased fell from the trampoline and had attempted to catch her. He said “[a]nd I think I pushed her away from the concrete a bit”. He said that her forehead hit the septic tank on the left side on the top of her head and then “tumbled over the side” of it. He said that she was crawling towards the edge, “went to put her hands up, and she was kneeling on the mat thing… And I said, ‘Hang on bubba’, and I turned my back to grab a pair of trousers off, and she just went straight off. And I went to turn and she was falling.”

52. He then said that when he picked her up and tapped her bottom she was only crying for 5 minutes and then stopped. At this time, she had a graze on her head, a black eye forming under her left eye and a scratch on her arm. After this he explained that she was having trouble breathing and he took her to the hospital.

53. At some point before this, the applicant stated that he cuddled the deceased and changed her into new clothes, as at the time of the fall she was only wearing her nappy. This occurred on the rug in the lounge room, with the child on her back. He alleged that all of this occurred within 9 to 15 minutes after the fall from the trampoline.

54. Later in the ERISP, the applicant told police that he had looked after the deceased on his own before and “loved her like [his] own”. He said that he had met the deceased’s father in Cowra. He said that his relationship with the deceased’s mother was good and that she had been away for the night because of a thyroid operation. He indicated that he was prescribed a Ventolin puffer as well as antidepressants and had taken one tablet the night before.

Material tendered in trial before Bennett SC DCJ

55. The transcript of the evidence given by Detective Senior Constable Samuel Brennan at the Supreme Court trial on 22 June 2017, 28 June 2017 and 3 July 2017 was tendered. A number of photographs were tendered through the officer. His evidence described the investigation in general and the questioning of the applicant.

56. The trial transcript of the evidence of Debra Gander was tendered. Ms Gander was a registered nurse who had been working at the Blayney Hospital for ten years before 2 April 2014. She became a registered nurse in February 2014. Ms Gander gave evidence that at 11:02am on 2 April 2014 she was called to the emergency room in the trauma room and saw nursing staff performing a number of procedures to resuscitate the child. She also gave evidence that she saw the applicant repeatedly saying “Why isn’t she breathing? What is wrong with her?” She described him as crying and upset.

57. He also told her that the deceased had hit her head when she fell off the trampoline, she had been “okay” but once she was put in the car she fell asleep and he could not wake her. He told her that the accident had happened around 15-20 minutes beforehand. At this point, she described the applicant as very upset and almost hysterical. In cross-examination she stated that when the deceased was being treated she noted a red mark on her forehead which was about the size of a fifty cent piece and also an older mark that was smaller and on her wrist.

58. The trial transcript of Ms Suzanne Mendham was tendered. As of April 2014, Ms Mendham was a registered nurse at Blayney Hospital. She gave similar evidence to Ms Gander about the conduct of the applicant and the account that he had given as to the cause of the deceased’s injuries. In cross-examination, she confirmed that he had been crying during the attempts to resuscitate the deceased.

59. The trial transcript of Ms Kathleen Hillier was tendered. She was the health service manager at Blayney Hospital at the time that the deceased was attended to by nurses. She gave a similar account to Ms Gander and Ms Mendham as to the applicant’s behaviour. She also gave evidence of seeing the bruise on the deceased’s face. She asked the applicant about the clothes that the deceased was wearing when she supposedly fell. According to her account, he replied that she was only wearing a nappy when she fell and he had dressed her after the fall. After the deceased had been pronounced dead, Ms A appeared in the resuscitation room. Ms Hillier described Ms A as appearing distraught and that she and the applicant comforted one another.

60. A social worker was called (who cannot be named because of a non-publication order) and gave evidence that the applicant and Ms A were “[c]rying and screaming” at the hospital. She gave evidence that the applicant had said “Why has she died? Why can’t she breathe? How could she be dead? I don’t want her to be dead. I want her to breathe.” He also said “I let this happen to [the deceased]. It’s my fault.”

61. Ms A’s trial transcript was tendered. Her evidence was that the deceased was a healthy child that started crawling at around six to seven months. She had been teething in April 2014. This would usually be treated by Bonjela or Panadol. She indicated that she saw the deceased on the evening of 1 April 2014 at around 7pm and she “was happy”. She also indicated that it was her practice to place the deceased on the trampoline when she was taking washing from the clothesline. She said “it was a habit”.

62. Ms A also confirmed that the evening of 1 April 2014 was the first time that the deceased and the applicant had been alone together for a night. She said that the deceased was in the habit of standing herself up and grabbing hold of objects to steady herself. This occurred, for example, in relation to the coffee table, and Ms A had observed this leading to a fall. She also said that falling while trying to keep hold of the coffee table had caused the deceased’s mouth to bleed. She also said that the deceased “used to crawl under the table and try to sit up, and hit the top of her head on the table”.

63. Ms A also recounted that she had seen the deceased fall off the couch and an incident where the deceased had hit her head on the fireplace, which occurred shortly before Ms A’s entry into hospital on 1 April 2014. She also recalled an incident where, in the week before the deceased passed away, the deceased had “went to push herself up and her hands slipped and she just kind of face-planted the concrete”.

64. In cross-examination, Ms A confirmed that the applicant had told her that he had been outside taking clothes from the clothesline on the morning of 2 April 2014. He told her that he turned his back and turned around and noticed that she was falling off the trampoline, hitting her head on the septic tank. He had also told her that as soon as he had realised that something was wrong he took the deceased in the car to Blayney Hospital. He said that the applicant appeared to be upset and grieving after the incident and she believed this was genuine.

65. In her evidence, Ms A confirmed that the applicant had met the deceased just before the Christmas holidays in 2013 and this was when the family began living together (the relationship between the applicant and Ms A had begun in November 2013). In response to questioning about the relationship between the deceased and the applicant, she answered:

“Q. And so that is or was the - is this the case, is that when [the applicant] met [the deceased] as well?

A. He'd known [the deceased] since not long after she was born.

Q. Because the fact is that you've known [the applicant] for years, haven't you?

A. Yeah.

Q. But the relationship just started November

A. Yeah.

Q. --is that correct? November 2013. In that time, and I'm talking about the time that you were living with [the applicant] and the time just before that when [the deceased] had met [the applicant], did you ever see [the applicant] hit [the deceased]?

A. No.

Q. Did you ever see him be aggressive towards her?

A. No.

Q. What was his relationship with [the deceased] like? How would you describe it?

A. Very - it was a good relationship. She waited till he got home from work. She used to want to be - follow him everywhere in the house. They were always out in his shed and she was always playing with his tools and she'd just like being around him.

Q. When she was following him everywhere around the house, did that upset or annoy [the applicant] that-

A. No.

Q. -you could see? What about when she went into the shed and played with his tools? Did that upset him, that you could see?

A. No. She was the only one that was allowed to touch anything of his really, the tools or anything.

Q. Did you see [the applicant], ever showing her affection?

A. Yes.

Q. How would he do that?

A. Cuddled and that. He used to muck around with her.”

66. After this exchange, Ms A stated that the deceased was teething and usually slept well when she had had Panadol. She confirmed that she was still in a relationship with the applicant.

67. The trial transcript of Mr Timothy Mendham was tendered. At the time of the deceased’s death, Mr Mendham was living with his wife and children on the same street as the applicant. He would occasionally see a white four-wheel drive vehicle going to and from the house. It was quite often parked in the driveway, and in the front yard.

68. On the morning of 2 April 2014, at around 8:50am, when walking his son to school, Mr Mendham stated that he did not see the white four wheel drive car, nor did he see it at around 9:05am. At 11:30am to 11:45am, he began mowing his lawn and did not see the vehicle at that time either.

69. The trial transcript of Cassandra Rae Mendham was tendered. She lived in the same house as her husband, Mr Mendham, and their two children. She indicated that she knew of the applicant, Ms A, the deceased and the two other children and was aware that the family had a white four-wheel drive which seemed fairly new. Like Mr Mendham, she indicated that it was usually parked in the driveway out the front of the house or on the grass in front of the house. At around 11:30am, she had walked to her son’s school at the end of the road and had seen a man putting items inside the car. She later clarified that this could have happened on 1 April 2014 rather than 2 April 2014.

66. The trial transcript of Lorna Turise was tendered. She resided in the same street as the applicant, Ms A and the children. At between 9am and 9:30am on 2 April, she had been taking her dog for a walk and had seen the white four-wheel driving backing out of the property where the applicant and Ms A resided. In cross-examination she insisted that she was not mistaken about the date at which she saw the car reversing from the property.

67. The trial transcript of Mr William White was tendered. He was another neighbour who lived in the same street as the applicant and Ms A. At around 10am on 2 April 2014, he observed the applicant driving fast down the street. His police statement had read “I saw [the applicant] drive past in the white four wheel drive. He was seated in the driver's seat. I would state he was driving reasonably quick. I thought to myself, he is hooking into it this morning. By this I mean he was driving faster than usual. I didn't think much of it”. In cross-examination, he stated that sometimes the white four-wheel drive was “mainly parked around the back near the trampoline” in the property shared by Ms A and the applicant.

68. I pause here to note that this evidence of the neighbours contradicted the evidence of the applicant in his ERISP as to what time he left to go to the hospital. Its significance can be seen below at [148] in the reference to Fagan J’s factual findings on sentence.

69. Dr Thomas Gibson was an expert witness who gave evidence at the trial before Fagan J. His trial transcript and expert reports were tendered before Bennett SC DCJ. At that time, he was a biomechanical engineer who had been practising in this area since the 1980s. He was asked for his opinion as to the likelihood that the injuries to the deceased were caused by a fall from a trampoline, as claimed by the applicant. He relied on the autopsy report of Professor Lyons for a description of the deceased’s injuries.

70. Dr Gibson performed experiments on a dummy, called a biofidelic dummy, which is the same as is used by the Roads and Maritime Services in crash testing. He explained that the dummy had sensors and scientific instruments to record data and that it was specifically designed to test the impact of significant impacts on 12 month old children. As such, the joints and mass distribution were consistent with a 12 month old child. He stated, quoting from his report, that:

“Testing with a biofidelic dummy representing a 12 month old infant was carried out to reproduce the effect on an infant of a fall from the trampoline in the circumstances as claimed by [the applicant].

He described the fall of [the deceased] from various orientations on the edge of the trampoline, head first onto the rigid concrete surface formed by the top of the septic tank. The testing demonstrated that depending on the fall configuration, the forces generated by an infant in such a fail could be sufficient to result in skull fractures and significant brain injury."

75. In Dr Gibson’s experiments, the dummy was set up to fall from a set of different postures, including crawling, sitting on the edge of the trampoline, kneeling and dropping forward head first. He observed that:

“[The deceased] sustained significant brain injury, but did not sustain
any fractures to her skull. The head and thorax injuries sustained
by [the deceased] are not consistent with a single fall onto her head from the trampoline onto the concrete top of the septic tank. Her head and thorax injuries are more consistent with multiple impacts with a less rigid surface."

76. He was then questioned about a small metal protrusion extending from the edge of the concrete septic tank. He had not been informed about this protrusion (referred to in the transcript as “reo”) when completing his first report but he took it into account in his second report. He observed in this second report that:

"The fall onto the steel reo from the trampoline does not,
however, account for the injuries sustained to the other regions of the head. Specifically the fall onto the bent steel reo does not explain the subcutaneous bruising to the back of the head and the left temporo-frontal regions, the sub periosteal bruising over the right parietal bone and the injuries to the chest.

In the autopsy report, 'On the back of the head there was an area of bruising on which there was a characteristic fine cross-hatch pattern. This may have arisen as a result of blunt force against the surface of a regular pattern such as a woven carpet'."

77. He noted that:

"It is also unlikely that the additional head and torso injuries were the result of [the deceased] rotating after the primary impact with her right forehead."

78. Overall, his opinion was that:

“(a) considering the biomechanical testing and the severity and type of the injuries sustained by [the deceased], it is most unlikely that her injuries all resulted from a single fall from the trampoline onto the top of the septic tank as described by [the applicant]; and

(b) [The deceased] sustained significant brain injury but did not sustain any fractures to her skull. The head and thorax injuries sustained by [the deceased] are not consistent with a single fall onto her head from the trampoline onto the concrete top of the septic tank. Her head and thorax injuries are more consistent with multiple impacts with a less rigid surface."

79. Dr Gibson also conceded that there was some variability in his findings depending on the distance between the trampoline and the septic tank with the “reo” protrusion. He also stated that he was not qualified in medicine and therefore could not comment on the effect of the brain injury.

Fagan J’s factual findings

80. As stated above, on 6 July 2017, the jury returned a verdict of not guilty of murder but guilty of manslaughter. In his remarks on sentence of 8 September 2017, Fagan J made a number of factual findings consistent with the jury’s verdict.

81. As his Honour noted, it was implicit in the verdict that the jury found the external head injuries to be the result of several separate applications of blunt force trauma to the head inflicted by the offender and that this trauma was at least a substantial contributing cause of death. Furthermore, the jury was not satisfied that this trauma was inflicted with the intent to cause death or grievous bodily harm to the deceased or with an appreciation that such trauma carried an appreciable risk of serious injury.

82. Fagan J gave weight to the evidence of the hospital staff (summarised above at [56]-[60]) of the applicant’s “apparently genuine distress” when attending the hospital. He noted that the applicant was under physical and mental stress because of his work as a concreter and had been taking antidepressant medication 3-4 weeks before the incident. His Honour concluded that:

“I infer from this evidence that he struck the child in the way that proved fatal whilst under stress and frustration, trying to cope with her when she was needy and demanding and when he was not able to maintain patience and self-control.”

83. Later, when addressing objective seriousness, his Honour stated:

“Taking into account the jury’s verdict I have concluded the offender lost control of himself under the pressure of sole parenting and inflicted blows in frustration which a reasonable person in his position would have realised would be likely to cause serious harm but not consciously intending such harm and exhibiting considerable distress when it resulted. The evidence does not show that his violence toward the child was prolonged or that it involved gratuitous or deliberate cruelty or that there had been any previous instance. What occurred was isolated to a single tragic incident.”

84. His Honour sentenced the applicant imprisonment for a non-parole period of 4 years and 6 months, with a balance of term of 3 years.

The expert evidence relating to the sexual assault charge

85. It was in the above context that the expert medical opinion regarding the rectal haemorrhage came to be considered by Bennett SC DCJ. During this evidence, two articles cited in the report of Professor Duflou assumed particular significance. As such, it is necessary to briefly summarised them here.

86. In the first, namely de la Grandmaison et al, ‘Rectal Wall Hemorrhage in Hanging Autopsy Cases’ (2012) 14 Legal Medicine 172-176, the authors analysed haemorrhagic lesions of the rectal wall in hanging autopsy cases. They reviewed 102 hanging cases and rectal wall haemorrhage was found in approximately 4% of cases. The authors proposed two possible etiologies for these abnormalities. The first was abdominal congestion in conjunction with acute vegetative circulatory dysregulation during a long agonal phase. The other was haemorrhagic lividity. The authors explained this as:

“…Postmortem hypostasis (livor mortis or lividity) is classically defined as the intravascular pooling of blood in gravitationally dependent parts of the body after death. Lividity is usually found in the skin, but may also be found in the organs (especially the lungs) or around the organs (especially the adrenal glands). When the body is lying on its back for a sufficient time, haemorrhage (corresponding to post-mortem hypostasis) behind the oesophagus at the level of the larynx and behind the rectum is sometimes found.” (footnotes omitted)

87. The second article relied upon by Professor Duflou was Schulz et al ‘Bowel Wall Hemorrhage After Death by Hanging’ (2011) 125 International Journal of Legal Medicine 403-410. In this study, the autopsies of 58 men and 16 women (with a median age of 46 years) who had hung themselves were analysed. Intramural haemorrhages were observed in approximately 12% of the cases examined, despite these individuals not having any pre-existing bowel conditions. The authors were of the opinion that where there is a longer agonal phase during hanging, abdominal congestion could cause these haemorrhages. The authors noted that to determine whether a person has hanged themselves or was placed in a hanging position (after a homicide, for example), bowel wall haemorrhages may be an indicator of death by hanging.

Crown expert witnesses

Professor Timothy Lyons

88. As stated above, Professor Timothy Lyons conducted the post-mortem. He gave evidence before Bennett SC DCJ. He is now deceased. At the time of providing his expert report, he was the Clinical Director of the Department of Forensic Medicine, Newcastle and had worked in forensic medicine for over 30 years. He held a Bachelor of Medicine, Bachelor of Surgery, Fellowship of Surgery from the Royal College of Surgeons, and Fellowships in Anatomical and Forensic Pathology from the British and Australian Colleges of Pathology. He also had a Doctorate in Medicine from the University of Tasmania and a Diploma in Medical Jurisprudence from the University of Otago. He had worked as a paediatric surgeon, including in the emergency department of Sheffield Children’s Hospital and had worked with a paediatric pathologist in Sheffield undertaking paediatric autopsies. He provided three expert certificates dated 16 May 2017, 15 June 2017 and 6 October 2017.

89. In his first certificate of 16 May 2017, Professor Lyons described the rectal haemorrhage as a very recent injury because of the lack of a “vital reaction” such as an acute inflammatory response. He was also of the opinion that the injury had occurred before death, as it could not be attributed to artefacts as part of the post-mortem process.

90. In his certificate of 15 June 2017, Professor Lyons responded to some of the opinions of Dr Duflou as set out in his expert opinion dated 31 May 2017. Relevantly, he repeated his earlier opinion in relation to the anal injury and noted that he was not of the opinion that that the child was constipated. He also stated that he “[disagreed] with Prof Duflou’s concluding statement and remained of the opinion that there is significant intramucosal haemorrhage, this occurred antemortem, and is due to the insertion of a blunt object into the anus.”

91. In his final certificate dated 6 October 2017, Professor Lyons indicated that the injury seen in the mucosa and submucosa of the rectum is similar to a bruise seen on the skin in that there could be bleeding into the epidermis and subcutaneous tissues without bleeding on the surface. He stated that this sort of injury is usually associated with blunt force trauma. The severity would have been determined by force applied and the mechanism inflicting the injury.

92. Professor Lyons further explained that in his experience of orthopaedics and trauma he had not seen a patient with a perianal or rectal lesion as the result of falling on an object which then accidentally entered the rectum. He stated that he had seen external injuries to the perianal region as a result of an individual falling on a bicycle frame but that this did not result in internal injuries.

93. In his examination-in-chief Professor Lyons explained some of the medical terms contained within his report. He described how the rectum is the tube which forms the final part of the gut or gastrointestinal tract and finishes at the anal margin. He described the rectum as mucosa forming the inner lining of this tube and as directly analogous to the skin. The sub-mucosa is the tissue underneath the mucosa.

94. Professor Lyons described the anal injury he had observed as follows. It was found between 2 centimetres and 5 centimetres from the anal margin and covered the entire circumference of the bowel wall. He had never observed such an injury in his capacity as a clinician working in paediatrics in a trauma unit and as a paediatric pathologist. He discounted the possibility that it had occurred as a result of blood pooling in the body after death, with blood vessels rupturing as the body began to decompose. In his opinion, the lesion was not a post-mortem artefact.

95. In terms of what type of object caused this specific injury, Professor Lyons stated that it would be “pure conjecture”, but he thought that whatever was introduced must have been smooth because there was no injury to the mucosa, only the sub-mucosa. There was no trauma to the anal sphincter or anal margin which led him to conclude that what was introduced was relatively small in size. He ruled out that the injury was caused by an adult male penis.

96. When discussing the findings in his report in greater depth, Professor Lyons noted that in this case, the anal sphincter was projecting from the anus “from the 9 o'clock to the 3 o'clock positions”. The anus and rectum were removed from the body and inspected. Professor Lyons noted that the first 2 centimetres of rectal mucosa appeared normal. After this, there was a “region of intensely congested mucosa”, with the congestion caused from bright red blood. In response to a question from the trial judge about why such an injury would have appeared 2 centimetres from the anal margin, he responded:

“I understand what his Honour is saying I'd say it's telling me - it's suggesting a number of things - is that - in that I'm arguing or I find that an object was introduced into the rectum, it must have extended in at least 7 centimetres And the second thing is, hypothetical if it was an object such as a pencil with a round - the non-pointy end of a pencil, my belief is it could pass through the anal margin fairly easily if it went in 7 centimetres and the child - presumably that would cause discomfort. I mean, maybe if it was moved around or wiggled around or the infant moved to try and remove it because it was in discomfort, then it could cause an area of bruising like that in that area.”

97. Professor Lyons then clarified that he should have said 5 centimetres, because the injury started 2 centimetres from the anal margin and then extended for 3 centimetres. He conceded that it was “possible” that the injury could have been caused by a male finger. He said that there must have been some sort of blunt force trauma for the bleeding to occur, and categorised such blunt force as (in lay terms), “moderate to severe, but not severe, because if it was severe I'd expect to see that trauma, actual breakage of the mucosa or a laceration or tearing.”

98. Professor Lyons was then taken to Professor Hilton’s report dated 11 August 2015 and his further statement dated 21 March 2016. Specifically, he was asked to respond to Professor Hilton’s assertion that there was doubt about whether this was an injury because there was no trauma at the level of the anal sphincter. Professor Lyons disagreed and was of the opinion that it would be possible for a smallish smooth-ended object to pass through the anal sphincter and yet cause trauma further within the rectum. Professor Lyons also disagreed with Professor Hilton’s assertion that the lack of personal lubricants made it less likely that there was penetration. This was on the basis that there are natural lubricants from the body in that region and it would be possible for an object to be passed through the anal sphincter without injury.

99. Professor Lyons was then taken to Professor Duflou’s reports and asked to address the areas of disagreement between them. Professor Lyons disagreed with Professor Duflou’s use of the word “abnormality” rather than an “injury”. In his opinion, Professor Duflou was implying that there was something in the deceased’s rectum that simply was not within the bounds of normal anatomy. In Professor Lyon’s opinion, it was an injury. Furthermore, he was of the opinion that it was non-accidental. He said that there was a rich amount of blood in the tissues, it was “circum-fringed”, well-defined and this was a “very characteristic injury pattern”.

100. In response to Professor Duflou’s conclusion that the injury was a post-mortem artefact, Professor Lyon’s addressed the literature that Professor Duflou had cited in favour of this opinion. He noted that the two articles cited by Professor Duflou (referred to here as the “Schultz” and “De La Grandmaison” articles) were the only two articles that he was able to find which addressed bowel and rectal wall haemorrhage and both based their findings on the basis of autopsies conducted on adults that had hung themselves. Professor Lyons indicated that, in the process of hanging, there is an agonal period, and 2 to 4% of individuals in one paper and 12% in the other paper showed haemorrhage in the bowel wall in general.

101. Professor Lyons expressed doubt over whether these findings could be applied to the deceased’s case because they related to adults and in the hanging cases the pattern of hemorrhage was different, in that in those cases it was patchy but in the deceased’s case it was circumferential, or, as he put it, “a discrete, well-circumscribed pattern of bleeding”. He also distinguished the cases discussed in the two articles by pointing out that their conclusion was that in the agonal phase of 15 to 20 minutes in the process of hanging there was still electrical activity in the body that caused dysfunction of the blood supply to the gut.

102. He then clarified that the papers were referring to two possible mechanisms of injury; abnormalities arising in the blood supply to the gastrointestinal tract that can cause congestion (which had just been discussed) and then pooling of the blood to the most distal regions of the body. Professor Lyons indicated that he thought that the second mechanism may have had more weight and that Professor Duflou should have considered it in greater depth. He also stated that the pathophysiology of death is different in hanging cases as opposed to cases where someone has been resuscitated. In hanging cases, there is generally a cardiac arrest because of compression on the nerves that supply the heart. On the other hand, in the deceased’s case, there was a closed head injury, cerebral oedema and swelling, and the respiratory and cardiac centres gradually ceased to function.

97. In cross-examination, Professor Lyons was taken again to the two papers relied upon by Professor Duflou. He acknowledged that they were from respectable forensic medical journals and he presumed that they went through a process of peer review. He confirmed that the autopsy did not show that there was any sexual activity involving the deceased’s vulva, the labia majora, the labia minora or vagina.

98. Professor Lyons was then asked to clarify what he meant by a “moderate to severe amount of force”. He answered:

“Well if I remember correctly that when I was explaining the question about the amount of force, I said that forensic pathologists generally use – they generally say mild, moderate to severe force. But they don't -I didn’t say that, but we don't define that in Newton's normally. But I mean most forensic pathologists would say a mild amount of force would be the equivalent to a gentle tap If I gently tapped on the bench. Whereas a moderate amount would be a much sort of injury that if someone was punched to the face to cause a black eye. Whereas a severe amount of force might be someone who was punched to the jaw such that it caused bruising to the jaw and broke the jaw. And at the same time, I did actually say a moderate - moderate to severe mount of force and alluded to the fact that if it was severe force I would have expected to see trauma such as a laceration to the mucosa.”

105. When addressing the issue of the lack of injury to the anal rectal muscle, Professor Lyons explained that it is possible for such a situation to occur, citing the example of a sigmoidoscopy using a flexible sigmoidoscope that passes through the anal margin. He stated that this procedure involves an object being passed all the way through the bowel, but it does not cause injury to the anal margin.

106. Finally, Professor Lyons agreed that if someone was to insert an object into a child’s anus that the child would likely be moving to try and avoid the pain. He also agreed that he did not find any evidence of bruising that would be similar to a hand holding the child either by the legs or abdomen to keep them still. On the other hand, he stated that it was possible to hold a small infant up with a view of the genital area without bruising them.

Dr Susan Patricia Marks

107. Dr Susan Marks also provided an expert opinion for the Crown. She is a qualified medical practitioner with a Postgraduate Diploma from the University of New South Wales. She has been employed as a Career Medical Officer at children’s hospitals. She has also been employed as a Paediatric Registrar and Fellow and Staff Specialist in Child Protection Units at hospitals in Sydney.

108. After setting out the history of the deceased’s injuries and the explanation provided by the applicant in his ERISP, Dr Marks indicated that the deceased had multiple impact injuries including those to her right forehead, her right eye, the right side of her head, the back of her head and her chin. She was of the opinion that the severity of the rectal injury could not be explained by the passage of a stool. She described the injury as a “deep penetrating injury, penetrating from 2 cm deep to 5 cm deep”. At paragraph [43] of her report she indicated that:

“This injury would have been caused by forceful penetrating blunt trauma to [the deceased’s] rectum by an object. In the absence of any history to explain this finding, it is highly suspicious for a severe acute sexual assault.”

109. In her examination-in-chief, Dr Marks was taken to her report of 11 June 2015 and asked to read portions of it. She confirmed that she had read the expert opinions of Professor Lyons, Professor Duflou and Professor Hilton. She confirmed that she had read the brief of material and a summary of the Crown case.

110. Dr Marks was then asked to comment on Professor Duflou’s opinion of the anal injury as contained in his reports. Like Professor Lyons, she stated that the literature cited by Professor Duflou should be treated with caution. She provided several reasons for this. First, she noted that the authors had not considered similar injuries in children. Furthermore, she noted that the la Grandmaison article did address sexual assault but, in her view, only sexual assault which causes injuries to the anal opening. She stated that this is usually observed in someone who is alive. However, she stated:

“So it's correct to say that those are the things that we see, but it's misleading to suggest that those findings not being there means that it can't be sexual assault. It's quite possible to penetrate the anus of a child. Stool passes through the anus on a regular basis. It's also possible to put objects such as, for example, a finger through the anus without causing any injury to it, but if you have a forceful injury through the anus, as I said, it can go through the anus without injuring it, but then at the point where it kind of ends, it would be at that point where you might expect to see blunt force trauma.”

111. She clarified that she had not seen such injuries in a child in the anal area but had observed genital injuries in children where the external genitalia injury looked normal but there were deep vaginal lacerations. As she explained, “I’ve seen that clinically, where you can passage through the outer structure, which is designed to open and distend and allow things to pass through it, and then injuries further in…where the object that has been passing through is kind of coming against bony structures and then impacting on that area and causing injury internally.”

112. Dr Marks also commented that there was no background provided in relation to the individuals discussed in the article. She noted that one was an auto-erotic asphyxia death. In relation to the Schultz paper, she noted that the paper dealt with individuals who died as a result of fatal ano-rectal injuries, to the extent of rupturing the bowels, which was not the case here.

113. In cross-examination, Dr Marks confirmed that her practice was primarily with living patients at Westmead. It was not part of her practice to perform post-mortems. She later accepted that it was a disadvantage that she did not see the rectum or anus removed from the body, as opposed to a doctor performing a post-mortem. Like Professor Lyons, she did not see any injuries consistent with holding a child down to stop them from moving. However, she noted that “we hold children at the hospital all the time in order to do things that they don’t like. It doesn’t actually cause injuries to the child.”

114. Dr Marks was taken to Professor Hilton’s report, especially his concern about the absence of any trauma at the level of the anal sphincter. She disagreed that the anal sphincter was “the point of most resistance”, commenting that:

“So that's what I was trying to talk about before. If, for example, you're doing a rectal examination on a patient, including a child, which is where a doctor would insert a finger through the anus into the rectum, if you just push your finger in without pausing, that can be quite painful and the child will pull away, but if you actually hold your finger just for a brief period of time, and I'm talking a number of seconds, not a long time, the sphincter will actually relax and you can then pass a finger through the anal passage without causing an injury. It's not a procedure that's done commonly on children for obvious reasons, but it's done when it needs to be done, and it doesn't cause injury to the anal sphincter or to the anus itself. So I don't actually agree with the bit that you just read about the anal sphincter being – I forget the exact wording, but I can you said the point of most resistance.”

115. In relation to the lack of lubricant, Dr Marks noted that the lack of lubricant does not mean that an assault was impossible. In her opinion, the lack of lubricant meant that potential for injury to the anus was more likely.

116. Dr Marks was again taken to the findings of Professor Duflou. She agreed with his observation that a patulous anus at post-mortem generally should not be given great significance. She did not think that it was of great significance. She also agreed that this abnormality was unlikely to have been caused by chronic constipation. In relation to his conclusion that the injury could have been a post-mortem artefact of dying, she commented that she had not read of rectal mucosal haemorrhage occurring in children as an artefact of dying.

Professor Johan Duflou

117. Professor Johan Duflou is a consultant forensic pathologist in private practice, part-time specialist forensic pathologist at the Forensic Medicine Centre in Canberra, Clinical Professor of Pathology at the University of Sydney and Conjoint Associate Professor at the National Drug and Alcohol Research Centre within University of New South Wales. He stated in his report of 31 May 2017 that he had personally examined a large number of babies who had died from injuries and other conditions.

118. Professor Duflou noted that the anal/rectal pathology showed a lack of inflammatory cell reaction and stated that, in his opinion, it was likely this was sustained in the hours (possibly up to 8 to 12 hours) prior to death. He was not able to provide an opinion as to whether, if the rectal haemorrhage was an injury, it occurred at the time of the other injuries or not. Nor could he conclude whether it was the result of accidental/natural means or the result of abuse.

119. When providing his opinion as to the cause of the injury, Professor Duflou stated that:

“Research literature cautions against attributing any significance to a patulous anus at autopsy. Such visually alarming abnormality is in fact, a normal post mortem change and is not an indication per se of anal penetration. Assuming there is an injury present, I agree with the views expressed by Professor Hilton that the absence of mucosal surface trauma in any form whatsoever raises the distinct possibility this is not the result of anal penetration. In my opinion, severe chronic constipation is unlikely to cause such abnormality, and I note that the bleeding appears to be entirely recent without an inflammatory reaction. There also appears to be no natural disease present in this case which would reasonably be expected to cause the haemorrhage as described.” (footnotes omitted)

120. Ultimately, he concluded that the injury was a “perimortem artefact” due to the lack of any other anal/rectal injury and the absence of DNA and chemical evidence.

121. In examination-in-chief, he noted that that he had been performing autopsies (including on child subjects) since the early 1980s. He was then taken to the following comment in his report:

"My general comments in relation to the aging of injuries applies. The histologic appearances of the anal/rectal pathology shows a lack of inflammatory cell reaction indicating that it is likely this was sustained in the hours, possibly up to eight to ten hours, prior to death but I cannot state whether those abnormalities occurred at the time of the other injuries or not. It is also entirely possible this abnormality occurred in the immediate perimortem period?”

122. Professor Duflou explained that, generally, an inflammatory cell reaction will develop within 24 hours after the tissue like skin is bruised. He said that he was unsure how long it would take in the rectum, but it was likely that it was a shorter period such as 8 to 12 hours. He explained that the peri-mortem period is the time around death.

123. Professor Duflou explained the concept of hypoxia, which is a lack of oxygen to tissues. In this period, there can be rupture of blood vessels in multiple parts of the body. If there is a restart of the heart or a recommencement of oxygenation to that area, this can result in bleeding from that area because of the recently damaged very small blood vessels. He stated that this could also be an explanation for the injury in question in this case, as CPR was administered to the deceased, and, to his knowledge, this would not have been administered unless she was effectively in cardiac or respiratory arrest (or both). In those circumstances hypoxia could have developed, but if the heart was restarted and blood pressure rose, there could have been release of blood in the areas where hypoxic damage had occurred.

124. When asked about his use of the term “abnormality” rather than “injury”, Professor Duflou stated that he had used “abnormality” because he was not sure whether the damage to the deceased’s body was the result of the application of physical force. However, he was not discounting the possibility that it was an injury.

125. Professor Duflou also explained that the prolonged agonal phase could have been another cause of the “abnormality” of the rectum observed in this case. He noted that the deceased arrived at hospital at 11am and her breathing was short and shallow well before that. CPR was then attempted and eventually death was declared at 12:40pm. Overall, this meant that there was an agonal period of at least 1 hour and 40 minutes. In his opinion, this could have resulted in the “release of all manner of substances from the damaged brain which can have the effect of causing the appearance of bleeding in very unusual locations”. He noted that such agonal phenomena often occur in the soft tissues of the gastrointestinal system, such as in the pancreas and behind the bowel (this has been observed in adult cases). He did not know the exact reason for this but supposed that these parts of the body might be sensitive to the effects of substances like adrenalin. He agreed that constipation was unlikely to have been a cause of the injury.

126. Professor Duflou also expressed doubt about the possibility of anal penetration because of the absence of mucosal surface trauma. He stated effectively if someone were to insert an object, whatever that might be, to the extent that it would cause circumferential bruising over the area, it really surprised him that a clinician with a microscope would not be able to find mucosal damage at all.

127. The Professor was then asked about the possibility that an item such as a pencil with a smooth surface was used, with the natural lubrication within the anus and the rectum explaining the lack of any disruption to the surface of the mucosa. He replied that:

“…Look my concern about that is that it's circumferential, it's extensive. For it to be circumferential I think if it is the result of physical force, in other words if it's an injury, you would then have to expect there to be damage or force applied around the entire or almost the entire rectum on all sides. Or there would have to be some stretching motion or something quite unusual for it to occur in a circumferential fashion that's actually quite well demarcated. And to get that in the absence of any surface damage to the rectum and anus whatsoever to me really does sound quite unlikely. I must emphasise that I'm not absolutely excluding it but I think as a forensic pathologist who prefers to be cautious in such matters that to me it doesn't quite make sense. There are all sorts of peri mortem changes and artefacts which certainly do occur and in a situation like that you certainly have to think that this could be a peri mortem change and artefact.”

128. He was then taken to the two papers that he relied on his report. He noted that they discussed different situations, such as the results when adults have died via hanging, but noted that they supported the notion that abnormalities in the circulatory system may occur when a person has a prolonged period in which they are dying.

129. In cross-examination, Professor Duflou was taken to a transcript of the evidence of Professor Lyons. He disagreed with Professor Lyons because he maintained that this abnormality could have occurred in the peri-mortem period or even after death.

130. When taken to Professor Lyon’s evidence about the possibility that a pencil was inserted into the anus and then “wriggled about”, he stated that this could cause some form of bleeding. However, he stated that it was unlikely that this could occur without damage to the mucosa. He conceded that doctors may do rectal examinations where a finger is placed in the anus to feel parts of the rectum and that this can be done without causing bruising. He agreed with Professor Lyons that a moderate amount of force would have to have been used.

131. Professor Duflou was then asked about the assertion from other experts that the articles to support his alternative hypothesis were not helpful because of the mechanisms in which these deaths occurred (hanging rather than blunt force trauma). He replied:

“They point out that they show different characteristics to what is seen with pure mucosal haemorrhage and they point out as well that a forensic pathologist - that a correct interpretation of what they call peri anal ecchymoses is critical in preventing false child abuse allegations and forensic pathologists should also be aware of such pitfalls in hanging deaths. So in this case they have used as an example hanging deaths. But they certainly also point out in detail that other abnormalities which you expect to see in anal penetration cases include multiple contused lacerations involving the anal orifice and extending into the anal canal and continuous rectum and sigmoid colon. Colorectal perforations can be seen in such cases. Usually complicated by acute peritonitis. We didn't see any of that. Absolutely nothing. All we saw was mucosal and submucosal haemorrhage, circumferential.”

132. Later, he confirmed that his reference to the de la Grandmaison article was only in relation to the second mechanism of injury, namely the effects of a prolonged agonal phase, rather than the pooling of blood. He confirmed that this article referred to “bowel wall haemorrhage and abdominal congestion”. He explained that a reference to a “moderate” amount of force being inflicted on a child would “probably be in all likelihood less than a moderate amount of force inflicted on a robust hundred kilogram rugby player”, making this a “semi-quantitative approach and not necessarily at all accurate”.

133. Professor Duflou was then taken to the evidence of Dr Marks, particularly her view that this was likely to be a sexual assault because of her lack of knowledge of reports where children have suffered rectal mucosal haemorrhage as an artefact of dying:

“I think as I have said I do not exclude the possibility that this is an injury caused by an insertion of an object, whatever that object might be. But at the same time, I think coming back to Dr Marks' comment here, she says, ‘I don't think any of the other witnesses who are pathologists have made any mention of finding rectal mucosal damage in children which might then be thought to be an artefact of dying.‘ But I suppose the question which I don't think has been asked is how often do you see mucosal bruising to that part of the rectum without any other injury whatsoever to the anus or the mucosa or the genitalia? And that remains my concern.”

Professor John Hilton

134. Professor John Hilton is an Adjunct Professor and Consultant in Forensic Medicine. He provided two opinions dated 11 August 2015 and 21 March 2016. He had seen two colour paper print photographs of the deceased’s body which he noted were “reproduced reasonably well although not to a satisfactorily diagnostic quality”. In relation to the anal injury, he noted the findings of Professor Lyons of an “area of intense congestion as macroscopically commencing 20 mm proximal to the ano-rectal junction and extending for a distance of 30 mm and that microscopically this was characterized by fresh bleeding into the lining of the bowel”.

135. Professor Hilton noted that such congestion and mucosal bleeding is indicative of trauma, but noted that it was doubtful that it was caused by an object passing through the anus and into the rectum because of the absence of trauma at the level of the anal sphincter.

256. Professor Duflou provided the following answers in cross-examination about the two papers:

“Q.  Just in relation to your observations in your report that you have prepared, you relied heavily on two papers; a paper by Schulz and a paper by Grandmaison, is that correct?

A.  I do not rely on them, I quote them.

Q.  You have quoted them.  But you were asked to provide a hypothetical alternative to Professor Lyons‑‑

A.  A hypothetical possibility, yes.

Q.  Yes and one of the hypotheses that you put forward is to look into this type of ligature or hanging literature for in effect examples to support your theory as to the causation of this injury to this child is that correct?

A.  I used the papers including other papers as well which indicate that you can get some rather unusual abnormalities appearing in the rectum and anus in fatalities which are not the result of direct force to that part of the body.”

257. Professor Lyons had excluded the possibility of the rectal haemorrhage being a post-mortem artefact from the time of the autopsy. He described the haemorrhage this way in the post-mortem report:

"Fresh mucosal and sub mucosa haemorrhage to the rectum, the injury pattern suggests recent trauma due to the introduction of a foreign object into the rectum, the features seen are not due to post‑mortem artefact.  In my opinion this is a non accidental injury." (Emphasis added.)

258. Professor Lyons expanded on this opinion in court as follows:

“Q. And you commented the features seen are not due to post‑mortem artefact, professor, what does that mean?

A.  Forensic pathologists have to be very well aware of pathological changes that occur after death that can be misinterpreted as injury patterns.  So an example of post‑mortem artefact may be the pooling, the way that ‑ the blood pools to dependent parts of the body, so if a body is lying on its back, blood pools to the back of the body.  And particularly in people who are lying ‑ sorry, if the person's lying face down, so an elderly person who dies maybe with the head off the end of the bed, they have lax, softer tissues and you can get bleeding just simply post‑mortem because you get pooling of blood, the blood vessels rupture as the body begins to decompose and it creates a pattern of bruising.  And for the unwary, that could be interpreted as an injury, but in point of fact, it's what we ‑ a forensic pathologist would describe as a post‑mortem artefact.  And there are ‑ there are many of those.  I think pertinent to this case, your Honour, is the fact that in my post‑mortem report I comment that the anus is patulous.  It is ‑ when one dies, the anal sphincter relaxes and it allows the mucosa of the first part of the rectum to prolapse out of the anus and historically that was misdiagnosed as potential trauma, but it's a well‑documented post‑mortem artefact.”

259. Professor Lyons provided a number of reasons for doubting the explanation advanced by Professor Duflou of peri or post-mortem artefact. I have already set these out above at [101] and [102].

260. When Professor Lyons was asked his opinion about the two papers in his evidence in chief he replied as follows:

“A: Well, Professor Duflou is alluding to the first of the two mechanisms that are discussed in the paper.  I mean, he's ‑ I've tried to put it into plain English rather than use the more complex scientific terms.  In essence, he is arguing the same argument as argued in the papers.  If you have ‑ he's arguing that if you have a prolonged agonal period, that you can get abnormalities arising in the blood supply to the gastrointestinal tract that can cause congestion.  It can produce bleeding into the bowel wall that can produce as he ‑ he's referring to artefacts.  I think of far more relevance is the discussion on the second mechanism, your Honour, which is they discuss in ‑ they then go on to discuss that the ‑ in hanging, that you get dependent hyperspaces.

So, in other words, in hanging the blood will pool to the more distal regions of the body, and externally forensic pathologist will refer to glove and stocking distribution of lividity, because you get lividity from the naval to the feet, and from the arms to the ‑ well, from the elbows, I mean, to the tips of the fingers, and in this paper they go on ‑ in both papers they then allude to the fact that you get exactly the same mechanism in internal tissues.  So you get pooling of blood to the pendulum parts of the body, and, again, that ‑ that, to me, is a more favourable argument; that you would get the pooling.  The rectum is a distal portion of the body, and that, to me, seems to be a more ‑ of the two arguments, it seems to me to bear more medical strength pathophysiologically.  And Professor Duflou, he had just ‑ discusses one of the two mechanisms.  I believe both mechanisms should have been discussed.  I don't have any other comments to make.”

261. Although Dr Marks was not a forensic pathologist, she indicated that she felt it was within her expertise to answer questions about the post-mortem artefact hypothesis. She said this about it:

“A.  Yes.  As I've said before, I'm not a pathologist, and certainly in any reading that I have done I haven't read ‑ and I don't think any of the other witnesses who are pathologists have made any mention of finding rectal mucosal haemorrhage in children which might then be thought to be an artefact of dying.  The injury that this little girl had was a circumferential injury to the rectal mucosa in several centimetres, but as I've explained you can penetrate the anus without causing any injury to the anus, so I think I disagree that that's the most likely explanation of the rectal haemorrhage.”

262. She had also read the two articles referred to by Professor Duflou and gave evidence that caution should be exercised in relation to acceptance of it.

263. Professor Hilton did not favour the post-mortem artefact theory either. His opinion was that:

“…in the actual process of dying unpredictable things can sometimes happen ‑ that's unlikely to produce any bleeding in that particular area, but probably not impossible.”

264. As for Professor Duflou’s opinion on this issue, Professor Hilton stated, “I cannot favour that opinion over any other opinion as to causation. I can't.” Professor Hilton was then asked about the two papers and the following exchange took place:

“A.  Well, they were prepared in a different context.  I wouldn't say they were of not great ‑ I wouldn't say they were of no assistance in that they introduce concepts which are worthy of consideration but with the caveat that we are dealing with two distinct and separate situations.

Q.  And you would express that as in accepting those papers or indeed in considering those papers a degree of caution ought to be applied in relation to the findings and opinions expressed in those theses in relation to this particular case before the Court?

A.  Yeah, to extrapolate the main thrust of the thesis of these papers into this context.  It's quite properly done but it's done with considerable reservation.”

265. I have considered the evidence as to whether the alternate hypothesis of a peri or post-mortem artefact could be excluded and I am satisfied that it was open to his Honour to do so. Not only did three out of the four experts not favour it, there was no evidence that anything like it had ever been seen in a child so young before. Whether Professor Duflou relied on the two reports or, as was contended by the applicant on appeal, simply cited them, they seem to be of little assistance for the numerous reasons articulated by Professor Lyons. When those articles are put to one side, the basis for Professor Duflou’s alternate theory is speculative at best. Although it was common ground as between the forensic pathologists that post-mortem artefacts can arise and are something to be aware of, the nature of this haemorrhage and the absence of any other time when such an injury had been found confirms to me that it was open to the trial judge to reject this alternate explanation.

The evidence of injury

266. Having excluded the alternate hypothesis raised on the evidence and, thus, been satisfied that the intermediate facts had been established beyond reasonable doubt, the remaining question posed by the Crown at trial was whether his Honour ought to have had a reasonable doubt that the haemorrhage was the result of penetration of the anus by a smooth object.

267. The trial judge observed in his reasons that Professor Lyons had a greater opportunity to make observations as he conducted the post-mortem. This is a relevant factor when weighing the expert evidence. Furthermore, there was some doubt on the evidence as to whether Professor Duflou had seen the slides prepared of the post-mortem. His Honour sought to clarify this of Professor Lyons as follows:

“HIS HONOUR: Could I just clarify.

Q.  The material to which Professor Duflou was given access was material that was prepared in the course of your post‑mortem examination?

A.  That would be correct, yes.

Q.  That would have included the tissue that you'd removed, and from which you took slides, for the purposes of microscopic examination?

A.  Correct, your Honour.

Q.  It would have included perhaps images of what was to be seen on the microscope, rather than the slides themselves, so that you have an immediate representation of what was captured by way of microscope, or the slides themselves?

A.  I think Professor Duflou, who actually saw the slides, your Honour.  That would be normal practice.”

268. In his examination in chief Professor Duflou agreed with the following:

“Q.  And I note from your report that you have had access not only to the notes and reports of Professor Lyons but also Dr Marks and Professor Hilton?

A.  Yes, correct.”

269. Despite this, Professor Duflou did not believe that he had seen the slides as reflected in the following exchange:

“Q.  And with regard to slides, do you have any access to slides?

A.  No, I did not examine the slides for the purposes of providing this report.  I assumed that the observations made by Professor Lyons were correct.

Q.  And you proceeded on that basis?

A.  Absolutely, yes.  I did not see the slides ‑ every though I did this report, it is ‑ I have to say it's possible that I may have seen the slides when I was still employed as a forensic pathologist at the Department of Forensic Medicine in Glebe, but if so I have no recollection of that at all.  It wouldn't be unusual for slides to be shown around.”

270. Professor Lyons was consistent with his evidence throughout without being dogmatic. An example is as follows:

“Q. Just turning to question 13 again, question 13 for the avoidance of any doubt is your reply to Professor Duflou's observations in his report that for example the question reads, 'Do you agree that the injury was non‑accidental injury?'  And your reply, Professor, was?

A.  I am of the opinion the evidence of haemorrhage is indicative of circulation of blood through the rectal tissues and therefore indicative the injury occurred before death.  I am also of the opinion that this is an injury not an abnormality or artefact.

Q. Now you have already explained some of that terminology to the Court today, just in relation to the importance or otherwise attached to the circulation of blood through the rectal tissues, you have indicated that in your opinion that is a strong indicator that the injury occurred before death, is that correct?

A. Yes, but particularly because in this case it is a very ‑ there was a rich amount of blood within the tissues and it is also rather, it is a very characteristic injury pattern in that it is circum fringed and well defined.”

271. In cross-examination Professor Lyons’ opinion was tested in this way:

“Q. Professor, in your report ‑ sorry, not your report, certificate dated 16 May 2017, in paragraph 1(c) on the second page about 60% of the way down, you state that, 'I am of the opinion that the injuries occurred before death, ante‑mortem, not that they could be attributed to artefacts as part of a post‑mortem process,' again, is that an absolute opinion on your part or is that one that you find more like than not?

A. No, I mean, I'm firmly of the opinion that there were ante‑mortem injuries.  I don't believe ‑ I do not believe they're a post‑mortem artefact.”

272. And later:

“Q. Is it possible that Professor Duflou's opinion there is correct?

A. In my opinion, no.”

273. Dr Marks was not a forensic pathologist but is an expert in childhood injuries including sexual interference. Her evidence, as summarised above, was that it is “misleading” to suggest the absence of other injury to the mucosa excludes a sexual assault. She stated “[i]t's quite possible to penetrate the anus of a child” and that a finger can be put in a child’s anus without causing any injury to it. She also gave evidence that if you have a forceful injury it can go through the anus without injuring it, but you might expect to see blunt force trauma where that insertion ends.

274. Dr Duflou’s evidence about the absence of other trauma included the following exchange:

"Q.  Do you agree that the injury was non‑accidental injury?

A.  I do not know whether the anal/rectal abnormality is an injury and if it is an injury whether it was the result of accidental/natural means or the result of abuse."

A… there was no damage to the surface of the mucosa.

Q.  Such as scraping or abrasion or any such assault‑‑

A.  Yes, any indication of physical force to the surface of the rectum and anal region and that to me really is very important in this case.

Q.  Yes?

A.  Because effectively if you were to insert an object, whatever that might be, a pencil, a finger, whatever object, to the extent that you would cause circumferential bruising over such an area, it really surprises me that you would not get any mucosal damage at all, not even visible under the microscope.  And when you have this disparity it really doesn't appear to make sense.  One of the things you always consider is this a post‑mortem, perimortem type artefact and not a true injury.”

275. He was further asked about the post-mortem artefact hypothesis and responded as follows:

“Q And professor you concluded your report in that your final paragraph, 'I conclude that it is entirely possible and in my view most likely in this case that the finding of isolated anal stroke rectal intramucosal haemorrhage is a peri mortem artefact of dying.  The lack of any other anal/rectal injury and the absence of DNA and chemical evidence further strengthens my view that this abnormality is a peri mortem artefact and is not the result of insertion of a blunt object into the anus.'  Is that still your view?

A.  Absolutely yes.

……

A.  I do not believe that it is likely that you would get only bleeding without mucosal damage.

A.  I am not so much concerned with a lack of injury to the anus itself, the anal entrance if you like or exit.  What I am concerned about is the lack of surface injury where bruising is because that is where the application of force is and at this circumferential and multiple locations, and as such you would expect there to be an application of force but which I note Professor Lyons indicates is moderate to severe in amount.  Yet surprisingly there would be no indication whatsoever of damage to the mucosal surface itself.”

276. I pause here to note that whereas Professor Hilton was concerned about the lack of injury to the anus, Professor Duflou was not (nor were Professor Lyons or Dr Marks).

277. The trial judge questioned Professor Duflou on this as follows:

“Q.  Just tell me this, can I, perhaps you can clarify this for me professor, why would you expect to see damage to the mucosa?  Is it ‑ I suppose I should raise this question, is it at least possible that the penetration might have occurred ‑ I'm getting some feedback ‑ the penetration might have occurred without causing damage to the surface of the mucosa?

A.  Your Honour you can certainly get penetration without damage to the surface of the mucosa.  I have no doubt whatsoever that this can occur and as I've said previously insertion of a finger would not be expected to cause surface mucosa damage.  What's of relevance here is the presence of the haemorrhage within the depths of the mucosa without damage to the overlying tissue.  The mucosa itself is one cell layer thick.  It's at a microscopic level and there was no damage here to the mucosa at all when looked at under the microscope.”

278. Professor Duflou also gave these answers:

“A.  Well I mean effectively I think it's fair to say Professor Lyons is of the view that this injury has been caused by another person causing direct injury to the rectum.  I say it remains a possibility but it's not one which I favour and which I think can be reasonably explained on the basis of changes that happen to the body in the peri mortem period.

A.  I don't think I have ever said that insertion of, for example, a finger or a pencil would necessarily cause injury to the anus.  But what is of relevance is the mucosal surface here in the vicinity of the mucosal haemorrhage.”

279. The opinion of Professor Hilton was, in summary in his report, as follows:

“The congestion and mucosal bleeding in the rectum is indicative of trauma.  However, the absence of any trauma at the level of the anal sphincter (the point of maximum resistance to any anal penetration), may cast some doubt on the rectal mucosal appearances having been affected by an object passing through the anus and into the rectum from the exterior of the body."

280. Professor Hilton later added that:

“Testing for any personal lubricants was negative.  While this observation cannot exclude the introduction of a foreign object through [the deceased’s] anus, the absence of any anal injury makes such penetration as the cause of internal rectal bruising, while not impossible, perhaps less likely."

281. When explaining why he could not be certain as to causation in this matter, Professor Hilton was questioned by the trial judge to clarify his position as follows:

“Q.  So your opinion with regards to causation is ‑ do you have an opinion as to what could have caused this particular‑‑

A.  Well, there's the ‑ the negative aspect that there is no ‑ there is no direct evidence of something being introduced from outside, in.  The damage, such as it is, is inside ‑ it's in the rectum.  The presence of the hard constipated stool on the passage of said stool could well account for this degree of effusion blood into the soft tissue.  Look ‑ I ‑ I think that there's ‑ there's ‑ there is no ‑ there's an insufficiency of evidence for any ‑ no ‑ I can't say that ‑ I can't talk for my colleagues.  For me to give a definite opinion as to what did cause the effusion of blood into the soft tissue of the rectum there are a number of possibilities.  I cannot weight one over another.

HIS HONOUR

Q.  Can I just ask you this:  your opinion can be summarised this way, I think?  You concede the possibility of the application of some force within the rectum that could produce what was seen by the professor who conducted the post mortem ‑ that was Professor Lyons, but upon what you have seen you can't discount other possible explanations which bear equal merit upon the analysis of the material that you have observed in the course of your study of the matter ‑ is that a fair summary?

A.  Yes.”

282. The most significant aspect of this evidence, which was not specifically referred to in the Reasons for conviction, was the lack of injury to either the rectal mucosa or anus. The evidence of Professor Duflou was that he had no difficulty with the lack of entry injury to the anus; only to the lack of injury to the mucosa of the rectum. Professor Hilton, on the other hand, was concerned with the lack of injury to the anus. That is, out of the four experts only Professor Duflou was concerned about the lack of injury to the mucosa of the rectum and only Professor Hilton was concerned about the lack of injury to the anus.

283. As opposed to the consistency of the Crown expert evidence, the defence experts were either unable to agree with each other on a number of matters or agreed with aspects of the Crown evidence.

282. I have considered the evidence on this issue and am satisfied that the lack of injury to the mucosa does not lead to a conclusion that the trial judge’s verdict was unreasonable. The finding of guilt was one which was open to his Honour on the whole of the evidence at trial.

283. The Crown case was that the act of penetration was in the context of frustration and anger, but clearly a deliberate act. It relied upon the facts in Trevor Essex v R [2013] NSWCCA 11 in support of its submission that such injuries could be inflicted out of frustration. TrevorEssex v R was an appeal to this court where one of the charged acts was the insertion, by the applicant, of a hose nozzle into the vagina of a three year old child. There was conflicting expert evidence but the trial judge favoured the Crown expert evidence that a physical object had been non-accidentally introduced into her vagina when he lost his temper with the child.

284. Although it is certainly an unusual crime, it could not be said that it was unlikely that a caregiver might inflict such an injury in the context of anger and frustration in the same way as the injuries were inflicted in relation to the manslaughter finding. The injury is not to be considered in a vacuum. It must be considered in the context of a violent assault on an 11 month old child. The trial judge was satisfied that the applicant was frustrated and lashed out at the child. There was no requirement for the applicant to do so for a sexual motive. It may have been for a medical reason but there was no evidence of that, as the applicant offered no explanation beyond a bare denial. Although the trial judge correctly noted that the applicant’s unsatisfactory answers in relation to the other physical injuries did not amount to positive proof of guilty, they do provide context to the event overall. I have had regard to the applicant’s ERISP and, despite the fact that the applicant was not asked about the rectal injury, his answers otherwise were a matter of concern. It was well open to the trial judge to make the findings he did in that regard.

285. Once the medical evidence established beyond reasonable doubt that the haemorrhage was an intentional injury, there was no additional onus on the Crown to prove the precise object used, nor the applicant’s motivation. Despite the lack of evidence on these two factual matters, I am not satisfied that the trial judge ought to have had a reasonable doubt in this matter.

286. I would not uphold ground 3.

ORDERS

289. I would propose the following orders:

1. To the extent necessary, extend the time within which to appeal.

2. Grant leave to appeal.

3. Appeal allowed.

4. Quash the finding of guilt made by the District Court on 9 November 2018.

5. Order that there be a new trial.

**********

Amendments

19 December 2022 - [40] and [228] word "not' inserted

Decision last updated: 19 December 2022