R v Tooman
[2020] NZHC 469
•11 March 2020
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANT AND PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF CONNECTED PERSON PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-092-001500
[2020] NZHC 469
BETWEEN THE QUEEN AND
SHANA TOOMAN
Defendant
Hearing: 24 February – 9 March 2020 Appearances:
J Rhodes and A Al-Janabi for the Crown
M Allen and A Cranstoun for the Defendant
Judgment:
11 March 2020
ORAL VERDICT OF HINTON J
Solicitors/Counsel:
Kayes Fletcher Walker Ltd, Manukau Public Defence Service, Manukau
R v TOOMAN [2020] NZHC 469 [11 March 2020]
Introduction
[1] Ms Shana Tooman has been charged with causing GBH with intent to cause GBH to [the complainant], her infant daughter.1 The trial of the charge has taken place before me without a jury, with evidence called between 24 February and 4 March 2020 and closing submissions on Monday 9 March 2020. While initially Ms Tooman had elected trial by jury, I gave her leave to change that election on 17 February 2020.2
[2] The charge arises out of events said by the Crown to have taken place at Ms Tooman’s home address in [suburb] on 11 July 2017. At that time, [the complainant] was about six months old but was born almost four months prematurely in January 2017 so her corrected age at the time of the incident was 10 weeks.3
[3] Having sat and listened to the evidence and weighed it up carefully, I now proceed to give my verdict.
Elements of the Charge
[4]The Crown bears the onus of proving beyond a reasonable doubt that:4
(a)on 11 July 2017, at her home address in [suburb], [the complainant] suffered grievous bodily harm (GBH), that is really serious hurt or harm;5
(b)Ms Tooman caused that harm; and
(c)at the time she caused [the complainant] that harm, Ms Tooman had intended to cause that harm.
[5] As to the third element, it is not sufficient for the Crown to prove only that, at the material time, Ms Tooman foresaw that really serious bodily injury might have
1 Crimes Act 1961, s 188(1).
2 Criminal Procedure Act 2011, s 53.
3 Notes of Evidence at 78.
4 Crimes Act 1961, s 188(1).
5 Filitonga v R [2017] NZCA 492 at [27]-[29].
resulted.6 Rather, the Crown must prove beyond a reasonable doubt that, at the time the harm to [the complainant] occurred, Ms Tooman had intended to cause her GBH.7 That is, that she had decided, in causing [the complainant] harm, to bring about that harm.8 This is distinct, also, from the question of whether the harm inflicted amounted to GBH.9
[6] Equally, the Court of Appeal has accepted, and the Crown relies on the fact, that a defendant can properly be inferred to have had the relevant subjective intention where they cause harm in circumstances,10 and inflict harm of an indisputably grievous nature,11 such that the infliction of GBH was an inevitable outcome of the infliction of that harm. Furthermore, evidence of foresight or knowledge of the inevitable outcome of a defendant’s actions provides a foundation from which to infer the existence of the requisite intent.12
Directions
Requirement to give reasons
[7] I am required to give reasons for my verdict.13 These need only “show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached.”14 Also, here, as the credibility of witnesses is involved, and important evidence will be either accepted or rejected, my reasoning in respect of those issues should be stated explicitly.
Onus and standard of proof
[8] The Crown bears the onus of proving all elements of the charge beyond a reasonable doubt.15 Ms Tooman is not required to prove anything.
6 Albert v R [2011] NZCA 526.
7 Vincent v R [2015] NZCA 201.
8 Hyam v Director of Public Prosecutions [1975] CA 55 (HL) at 86.
9 Vincent, above n 7, at [49].
10 Albert, above n 6, at [22].
11 Stewart v R [2017] NZCA 246 at [35].
12 Albert, above n 6.
13 Criminal Procedure Act 2011, s 106(2).
14 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [17], [18], and [36].
15 Woolmington v Director of Public Prosecutions [1935] AC 462 (HL) at 481-482.
[9] Proof beyond reasonable doubt is a very high standard of proof. The starting point is the presumption of innocence. I must acquit Ms Tooman if having carefully and impartially considered the evidence there remains in my mind an honest and reasonable uncertainty about her guilt. In other words I must convict only if sure that all elements of the charge have been proved.16
Defendant calling evidence, but not giving evidence in Court
[10] Because Ms Tooman has called evidence, it is appropriate for me to remind myself that this does not change where the burden of proof lies. For present purposes, the salient point is that if I accept that Ms Tooman’s exculpatory account of the mechanism of [the complainant]’s injuries is either true or reasonably possible, the proper verdict is not guilty. However, even if I disbelieve her evidence, a finding of guilt does not automatically follow. Rather, I must then consider whether the Crown’s evidence is reliable, such that I am satisfied of Ms Tooman’s guilt beyond all reasonable doubt.
[11] Ms Tooman has not herself given evidence in Court. She had no obligation to and the fact she did not does not add to the case against her.17 Ms Tooman did give three interviews to Police before the trial. Videotapes of the second and third were played during the trial. While the statements she made to the Police in those interviews were not made on oath, they are part of the evidence that I may weigh in deciding my verdict.
Lies
[12] The Crown has alleged that Ms Tooman lied in her interviews. That is accepted by her in terms of the first and second interviews, but she says it was because she did not know what to do and was scared. I note that, if a defendant is proven to have lied about alleged offending, the fact of that lie is something that can properly be taken into account as circumstantial evidence against the defendant.18 In particular, the Crown says the fact Ms Tooman told Police during her third interview, that she was
16 R v Wanhalla [2007] 2 NZLR 573 (CA) at [49]-[50].
17 R v Woodhouse CA117/06, 12 October 2006 at [16].
18 Mann v R [2010] NZCA 68 at [35].
lying previously is relevant to the credibility of her account given in that interview, and that this is also directly probative of her guilt.
[13] However, I must be sure that Ms Tooman did in fact lie before placing any weight on the fact of such a lie. I must also remind myself that people lie for many reasons other than because they are guilty, and that, even if sure Ms Tooman lied, I should not necessarily conclude she is guilty just because she lied.19
Demeanour
[14] In assessing how much weight to attach to each witness’ evidence, it is appropriate that I remember that a witness’ demeanour is not a good way to assess the truth or falsity of their evidence.20 While a witness’ demeanour is something I can have regard to, I should attach more significance to the consistency of a witness’ evidence with other available evidence and across time, and whether it is inherently plausible.
Inferential reasoning
[15] I am permitted to employ inferential reasoning. The Crown has relied in part on my ability to draw these inferences, saying that if I accept Ms Tooman intentionally inflicted GBH on [the complainant] I can infer she must have done so with the intent to do GBH to [the complainant] given [the complainant’s] size and effective age on 11 July 2017.21 It is therefore appropriate to remind myself that an inference is a conclusion drawn from proven facts,22 the ultimate question being whether I am sure the Crown has proven the element of the charge in question.
Expert witnesses
[16] I have heard evidence from a number of expert witnesses. It is for me, as the trier of fact, to determine what weight to give to the opinions they offered on matters within their areas of expertise that were supported by evidence, having regard to their
19 Evidence Act 2006, s 124(3); Smith v R [2013] NZCA 184; and McLaughlin v R [2015] NZCA 339 at [45].
20 Taniwha v R [2016] NZSC 121, [2017] 1 NZLR 116 at [41] and [45]-[47].
21 See generally R v O’Connor CA4765/04, 7 March 2005 at [58]-[63].
22 See R v Thomas [1972] NZLR 34 (CA).
qualifications and the soundness of the factual basis of their opinions. Ultimately, I must ensure I am satisfied as to each element of the charge, and I am not bound to accept the opinion of the experts.
Propensity evidence
[17] The Crown has produced evidence of text messages that demonstrate, the Crown submits, that Ms Tooman tends to behave violently towards [the complainant], particularly when stressed and upset, which is said to be probative of whether she intentionally inflicted the harm on [the complainant].23 I address the question of the admissibility of these texts subsequently.
Chronology
[18] The following, which was not in any material respect disputed at trial, sets out the context for the charge.
[The complainant]’s birth: 5 January 2017
[19] Ms Tooman and her then partner entered into a relationship at some point in 2007. They have four children together, all born in Australia.
[20] [The complainant] was born at only 24 weeks' gestation. Her estimated due date was 27 April 2017. She spent three months in hospital in Brisbane.
[21] Initially the family were advised that [the complainant] was unlikely to survive, and they were put in a “bereavement room”. Ms Tooman fed [the complainant] milk using a syringe and she survived until the following day and was placed into incubation. The family stayed across the road from the hospital until [the complainant] was discharged on 30 March 2017. [Her then partner] gave evidence that he believed if it had not been for Ms Tooman’s care [the complainant] would not have survived.
[22] During her admission [the complainant] had a number of medical issues. Her ongoing issues at the point of discharge were described as chronic neonatal lung
23 Stewart v R [2008] NZCA 429, [2010] 1 NZLR 197; and Mohamed v R [2011] NZSC 52, [2011]
3 NZLR 145 at [17] and [84].
disease (CNLD), anaemia, and retinopathy of prematurity. After her discharge, the family stayed on in Australia with Ms Tooman's mother until leaving for New Zealand on 24 June 2017.
Move to New Zealand: 24 June 2017
[23] The family shifted to New Zealand at the suggestion of Ms Tooman’s father, Michael Pearce, who had visited them the year before and had them to stay in Auckland for two weeks over Christmas 2016. [Ms Tooman’s then partner] gave evidence that they came to New Zealand to see if they liked it. He said he thought the family, having decided to move, was looking forward to it. Ms Tooman had seen very little of her father over the years until 2016. He had until 2012 been living in Canada but had returned to New Zealand to live. Ms Tooman’s mother and maternal grandmother live in Australia.
[24] The family did not move over immediately after Christmas because of Ms Tooman’s pregnancy with [the complainant]. [The eldest child] however moved before the rest of the family in order to start school at the beginning of the 2017 year.
[25] Mr Pearce's family were living at [address redacted]. Once [the complainant] was medically cleared to fly, the rest of the family came to New Zealand. They moved into the Peace’s residence and the Pearce family moved into a different address down the road. [Her then partner] began working with Mr Pearce. Dennis Tooman, Ms Tooman’s brother, also lived at [address redacted] in an external sleepout.
Incident: 11 July 2017
[26] On the morning of 11 July 2017, Mr Pearce picked up [Ms Tooman’s then partner] at about 8:00 am and they went to work together. Ms Tooman and the children remained at home because it was the school holidays. The only other adult at the house that day was Dennis Tooman. He spent the day in the sleepout.
[27] In the days leading up to 11 July 2017, [the complainant] had flu-like symptoms including a runny nose and noisy breathing. [Ms Tooman’s then partner] told Dr Kelly it sounded like she was trying to get the phlegm out and that he might
have patted her on the back or removed some phlegm from her mouth. [Ms Tooman’s then partner] said this would not have been anything serious. Prior to 11 July there were no issues that required medical assistance. Other family members also had or had had colds.
[28] [Ms Tooman’s then partner] said when he left the house [the complainant] was all snuggled up on the left-hand side of the green couch in the lounge. He also said she had been moved to her car seat by the time he left work, and she was awake and moving around.
[29] At about 3:00 pm that afternoon [Ms Tooman’s then partner] and Mr Pearce left work and at about 3:30 pm when they were on their way home [her then partner] received a phone call from Ms Tooman on Dennis Tooman's phone. Ms Tooman told [her then partner] that something was wrong with [the complainant]. She said that she was really worried about [the complainant], who was not breathing properly. Mr Pearce advised [her then partner] to call the ambulance, but [her then partner] did not know the number as the family had only been in New Zealand for two weeks. A phone call to 111 was made at approximately 3.38pm, the audio and transcript of which were produced.
[30] When [her then partner] and Mr Pearce arrived at [address redacted], Ms Tooman was by the front door talking to the 111 operator and Dennis Tooman was in the lounge holding [the complainant]. Mr Pearce took the phone from Ms Tooman and began speaking to the 111-call taker. [Her then partner] described [the complainant] as having trouble breathing and her body being limp. Mr Pearce made similar comments.
[31] Two ambulances arrived, the first at about 3.54 pm. The ambulance officers had received information that [the complainant] had been unwell and that there had been some blood from the nose and then an update that [the complainant] was “floppy and unresponsive”. Upon arrival, one of the officers, Mr Berry described [the complainant] as “lifeless”, noting that she “looked incredibly pale to what a normal child would look like, and it appeared that the child was not breathing and was literally just limp, arms flailed out in the father's arms.” Ms Douglas recalled [the complainant]
as being “floppy, she wasn't breathing well, her eyes were bulging, she looked to me status 1, which is severely unwell.” She also recalled seeing "two or three little scratches" at the top of her head, like "finger marks", where one was longer than the other two. There was no blood on the marks, and they looked like “superficial scratching”.
[32] Mr Berry took [the complainant] to the back of the ambulance. His observations were that [the complainant]’s breathing rate was “critically low”, as was her heart rate, body temperature, capillary refill rate, and blood oxygen level. Her blood sugars were elevated, which he described as a bad sign, and her level of consciousness reduced. These observations reinforced Mr Berry’s impression that [the complainant] looked plainly very unwell at the time.
[33] [The complainant] was taken to hospital by ambulance. [Ms Tooman’s then partner] went with them. En route to the hospital, the ambulance officers were able to achieve some stabilisation of [the complainant]’s condition. At Middlemore Hospital [the complainant] was transferred into the care of emergency room staff. While there she was examined by Dr Karen Quay, who noted the same depressed vital signs as the ambulance officers, as well as serious head injuries, scratches on the right side of [the complainant]’s neck, and difficulty breathing.
[34] [the complainant] was then transferred to Starship Hospital’s Paediatric Intensive Care Unit at approximately 7:00 pm. Further examinations confirmed serious head injuries, including internal bleeding and brain damage, and limb fractures. The injuries are detailed further below.
Ms Tooman’s first account including first DVD interview: 12 July 2017
[35] Ms Tooman first spoke to Detective Constable Erin Fisher at [address redacted] at about 9:45 pm on 11 July 2017.
[36] She told Detective Fisher that, at approximately 3:00 pm on 11 July, she was in the kitchen putting things away. [The middle children] were running around. She heard [the complainant] cough, went to her, and found her choking. She put her hand
in [the complainant]'s mouth to remove the saliva while [the eldest child] went to fetch Mr Tooman.
[37] Ms Tooman described [the complainant] as choking on her phlegm with bubbles coming out of her mouth. She picked [the complainant] up, and then laid her on the floor while pushing below her ribs to make her breathe. She did not know what caused [the complainant] to cough or choke, but said that after [the complainant] choked, she started crying and became unresponsive.
[38] Ms Tooman gave her first DVD interview on 12 July 2017, speaking to Constable Suzanne Wecke at Manukau Police Station.
[39] She said that she was making [the eldest child] a milo in the kitchen and [the complainant] seemed fine at the time. [The eldest child] was on the couch watching television, and [the middle children] were running through the house.
[40] Ms Tooman said she came out of the kitchen after cleaning up and heard [the complainant] cough and choke. [The complainant] was lying flat on her back and when she went to her, [the complainant] was choking and bubbling. Ms Tooman said she banged [the complainant] on the back and tried to get saliva out of her mouth. At that point, Ms Tooman said, [the complainant]'s eyes and mouth were open, she was floppy, and she looked “lifeless”. When she remained unresponsive Ms Tooman said [the eldest child] went to fetch Dennis Tooman.
[41] Ms Tooman mentioned [the middle daughter’s] tendency to pick up [the complainant] (not mentioned to Constable Fisher) and explained that [the middle daughter] had been warned not to do so. She added that she did not think [the middle daughter] picked [the complainant] up on 11 July because [the complainant] was in her portacot, and [the middle daughter] would not have been able to lean over to get her out.
The search warrant: 2 August 2017
[42] On 2 August 2017, a search warrant was conducted at [address redacted]. The Police either found or were provided with two diaries that had been in Ms Tooman’s
handbag, one of which was produced, and Ms Tooman's cellphone which was cloned at the scene by Mr Damian Govender, a Police forensic analyst. A number of Ms Tooman's communications were included in a telecommunications booklet also produced as an exhibit.
Ms Tooman’s second account and DVD interview: 30 October 2017
[43] On 26 October 2017, four days before Ms Tooman had a second Police DVD interview, a Family Group Conference was convened in Otara. It was attended by Oranga Tamariki, the Police, Dr Patrick Kelly, the lawyer for the children, Ms Tooman, [her then partner], and their families. During the course of that meeting, Dr Kelly spoke for between 60-90 minutes about the injuries sustained by [the complainant], as well as the possible mechanisms for those injuries.
[44] [Ms Tooman’s then partner] said that “out of the blue” after staying the night with him, she told him on the morning of 30 October 2017 that [the complainant] was not beaten up or anything like that and that she had gone to the letterbox and fallen over with [the complainant]. She explained that she had not said so before because she had been too scared.
[45] That day Ms Tooman voluntarily presented at the Manukau Police station to give a third interview, being the second DVD interview, with Detective Sergeant Katie Amstad.
[46] Ms Tooman began by acknowledging that the account in her earlier DVD interview was untrue. She said that at about 3:00 pm on 11 July 2017 she went outside to the letterbox and took [the complainant] with her. On her return inside, she stood on a sharp rock which caused her to fall forward. She fell on [the complainant], who hit the concrete hard enough that Ms Tooman “thought her head was gonna split”.
[47] When asked by Detective Sergeant Amstad to further clarify her narrative, Ms Tooman said that she tripped over the step and fell down, and that [the complainant]'s head hit the concrete of the top step. She held [the complainant]'s back, and fell with her legs on [the complainant], down from where her legs are. The weight of her legs was on [the complainant], but not the weight of her “tummy”.
[48] Ms Tooman said she stood up and pulled the rock out of her foot. She was afraid to pick [the complainant] up because she thought that her head would have split open. [The complainant] cried for a few minutes, but then she went unresponsive. She made no noises and was not breathing properly.
[49] Ms Tooman said she went back inside the house and went in the lounge. She said there were no visible injuries to [the complainant]’s head, and no other external injuries at all. [The eldest child] came out immediately and asked what the matter was. Ms Tooman then asked her to fetch Dennis Tooman.
[50] Ms Tooman said that at the time she did not know what to do and that she was scared.
Material injuries
[51] In the final assessment, [the complainant]’s injuries were the following, among others:
(a)Head injuries:
(i)skull fractures which were described by Dr Kelly as being “almost circumferential", including subdural and subarachnoid bleeding;
(iii)a ligamentous injury at the cervico-cranial junction (the back of her neck);
(iv)severe hypoxic-ischaemic brain damage; and
(v)extensive retinal haemorrhaging.
(b)Leg injuries:
(i)a comminuted displaced fracture of the right femur; and
(ii)a metaphyseal fracture of the left tibia/ankle.
Medical Evidence
[52] I received their statements as evidence and heard oral evidence from medical experts on behalf of the Crown being Dr Kelly, Dr Wilson, Dr Quay and Dr Ng and also from Dr Donald a medical expert for the defence.
[53] The various witnesses’ expertise and experience were not challenged. This was, in summary that:
(a)Dr Kelly has over 30 years’ experience in paediatrics. He was a consultant in Starship Children’s Hospital’s emergency department from 1995 to 2005, a consultant general paediatrician from 2005 to 2015 and then has been clinical leader of a specialist team dealing with child abuse since 2015.
(b)Dr Wilson has been a radiologist since 2009, having achieved her medical degree in 2002, and has worked as a consultant radiologist at Starship Children’s Hospital since 2011 specialising in paediatric neuroradiology, that is, imaging of the brains and spines of children.
(c)Dr Quay obtained her medical degree in 1997, attained vocational, that is specialist, registration in emergency medicine in 2005, and is employed at Middlemore Hospital as an emergency medicine specialist in that Hospital’s emergency department.
(d)Dr Ng is a consultant ophthalmologist at Greenlane Clinical Centre who attained her speciality training in paediatric ophthalmology in 2000 and has been employed as a consultant paediatric ophthalmologist with Auckland District Health Board since 2001, being one of four specialists used by the Health Board to assess children for non- accidental injuries.
(e)Dr Donald has broadly similar clinical experience to Dr Kelly, having had at least 30 years’ clinical experience in paediatrics before leaving
clinical practice in 2015 to become a private consultant in relation to forensic paediatrics.
[54] While the point was not raised by the defence, I questioned Mr Rhodes in closing submissions as to Dr Kelly’s expertise and experience in dealing with accidental trauma. I did this because the focus had been on Dr Kelly’s current specialist role. Having received further submissions from the Crown on this point, I am quite satisfied from the material before me that Dr Kelly has expertise in both accidentally and intentionally inflicted paediatric trauma.
[55] Having carefully considered the lengthy expert medical evidence, I accept the view of the experts called by the Crown that Ms Tooman’s explanation of accidental injury was extremely unlikely to have caused the injuries to [the complainant]. I set out a number of particulars.
[56] It is appropriate to note at the outset that Dr Donald expressed significant reservations about the evidence given by the experts called by the Crown. These largely derived from a number of criticisms he made of the second DVD interview. In summary, Dr Donald said the Police failed to ask Ms Tooman a number of clarifying questions that might potentially, had she answered them in a particular manner, have accounted for the injuries received in a manner consistent with her statements to Police. I identify these possibilities below. Dr Donald makes similar points in respect of the Police’s not having got Ms Tooman to act out a proper (in his view) ‘reconstruction’ of her version of events.
[57] In his written statement, Dr Donald referred to a combination of primarily a crush injury to [the complainant]’s head and legs and an impact produced by the incident described by Ms Tooman. In his oral evidence, Dr Donald’s position was somewhat less clearly expressed. While saying the reported injuries fit “quite well with crush or crush and impact”,24 Dr Donald also put it that he “wouldn’t discount a crush injury”, and that the explanation provided “could account for a crush injury plus or minus an impact injury to [the complainant]’s head.” Challenged to clarify his position in cross-examination, Dr Donald said he would consider the fall described a
24 Emphasis added.
sufficient explanation for all the injuries, even while equivocating as to whether any of the injuries were explicable only if there was also a crushing injury. His conclusion in his written statement was that Ms Tooman’s account provides “a probable alternative to a physical assault” such as that alleged by the Crown.
[58] There was no external injury visible on [the complainant]’s scalp other than superficial scratches as noted by Ms Douglas and Dr Quay. I agree with the Crown witnesses that if [the complainant]’s head had come into contact with concrete from a height in the way Ms Tooman described it, some obvious external injury would be expected. Dr Donald also agreed with this, his contention being rather that there may have been an intermediary between the head and the concrete. In this respect he raised the possibility of [the complainant]’s wearing a hat, Ms Tooman’s hand being under [the complainant]’s head, or [the complainant] having actually landed in foliage rather than on the concrete. He said the Police ought to have asked Ms Tooman about these possibilities.
[59] All of these I consider to be either ruled out or not reasonable possibilities on the evidence. Ms Tooman does not reference any hat and said she removed no clothing from [the complainant] before checking her injuries. In her interview with Police, Ms Tooman was clear her hand had slipped down to [the complainant]’s back at the time she had fallen, and that [the complainant]’s head directly struck the concrete. That in turn removes the possibility of [the complainant]’s having fallen into foliage.
[60] Dr Wilson noted that the ligaments around [the complainant]’s neck “were shown to be damaged in a pattern in keeping with an acceleration deceleration event and that injuries of this kind were characteristic of a whiplash type situation, not a simple fall or crush injury”. Dr Kelly said that a ligamentous injury to a child under 12 months is rare in accidental trauma but common in abusive head trauma. He said that it was not impossible for the mechanism described by Ms Tooman to cause ligamentous injury, but it was an extremely unlikely explanation.
[61] While Dr Donald did not agree with this evidence, his own evidence did not undermine it. He said that such an injury may result from an incident involving significant angular acceleration forces but acknowledged that Ms Tooman did not
describe such forces in her interview. Dr Donald speculates that may have happened. However, that is mere speculation on his part.
[62] Dr Wilson gave evidence that global hypoxic-ischaemic encephalopathy (a type of brain damage suffered by [the complainant]) together with bilateral subdural haematomas and skull fractures is not a pattern typically seen in crush injuries of the type described by Dr Donald. Similarly, Dr Kelly said he almost never sees brain damage of this kind in cases of accidental head trauma, even very serious accidental head trauma. He said it is not yet medically clear exactly why that is so, but that was his experience.
[63] Dr Donald did not agree with Dr Wilson’s analysis and referred me to an article in the academic medical literature examining the death of a two-year-old girl who was crushed by a 27-inch television but then acknowledged that it was not clear whether the paper discussed hypoxic-ischaemic injury. He also referred less clearly to another example of hypoxic-ischaemic injury resulting from an accidental injury.
[64] As the Crown submits, at the highest, even assuming those two examples were sufficiently clear for comparison, the existence of a small fraction of cases of global hypoxic-ischaemic damage following accidental injury is consistent with the evidence called by the Crown. For example, Dr Kelly gave evidence that of the 365 children admitted to Starship Hospital between 1991 and 2010 with skull fractures resulting from accidental falls, only one child had also suffered hypoxic-ischaemic brain injury. He said that based on his review of the Starship data, for [the complainant]’s injuries to have resulted from Ms Tooman’s proposed mechanism would be “an extraordinarily rare event.”
[65] [The complainant] suffered substantial retinal haemorrhaging, the features of which Dr Ng described as being unusual following an accidental injury. She said that accidental injury (such as falls and motor vehicle accidents) rarely cause haemorrhages but even when it occurs, the haemorrhages are typically few and not as extensive as in [the complainant]’s case. Dr Kelly said in his experience he saw severe retinal haemorrhage of this kind in approximately 60 to 70 percent of children with
abusive head trauma but almost never in accidental head trauma and very rarely even cases of serious accidental head trauma.
[66] Dr Donald’s evidence on this issue was not inconsistent with that of the Crown. He accepted that whether inflicted or accidental, there would need to be a high degree of force for there to be retinal haemorrhaging of the type suffered by [the complainant]. My view of the evidence overall is that the fall as described by Ms Tooman does not involve such a high degree of force, tending strongly to suggest it is again highly unlikely that Ms Tooman’s proposed mechanism could produce these injuries.
[67] [The complainant] suffered a fracture of the right femur which Dr Wilson described as not a clean break and presenting at an angle suggesting a degree of rotation in the course of fracturing. Dr Wilson said it could have been the result of a crush injury but would have to have been at high speed, an example being a driveway rollover by a car. In Dr Wilson’s view there was not sufficient force or speed in Ms Tooman’s described mechanism. She said she had never seen a femur fracture occur in such a situation. She said also that a broken femur was rare in a baby of [the complainant]’s age. Dr Kelly acknowledged that a femur fracture could result from an adult falling on an infant with the full force of their weight but said he had never seen a femoral fracture combined with [the complainant]’s head injuries, from an accidental fall.
[68] While agreeing the femoral fracture disclosed a degree of rotation, Dr Donald did not concur in Dr Wilson’s assessment as to the level of force involved. His evidence on this point was, however, brief. He suggested only that the incident described by Ms Tooman could conceivably have involved a sufficiently high degree of force to cause the femoral fracture. That, however, is little more than a suggestion that an accident could not be positively excluded as the cause. I also note the examples given by Dr Donald in support of his suggestion referred to accidental injuries to ambulant toddlers, which class of patients he accepted is not comparable to a very young child such as [the complainant].
[69] [The complainant] also suffered a metaphyseal fracture to her left tibia. Dr Wilson said this type of fracture is highly specific for non-accidental injury. Dr Kelly
said he had never seen such a fracture in an accidental fall in his entire practice since 1992, whereas he saw them approximately once a month “always in the context of child abuse”. He described accidental cause as extremely unlikely.
[70] Dr Donald said that such metaphyseal fractures were not unique to physical assaults but “98 per cent” of them could be attributed to those circumstances and he himself had only seen one from an accidental cause. He accepted that Ms Tooman did not describe any mechanism by which this injury could have been caused. Again speculatively, he suggested the possibility of this injury having resulted from Ms Tooman’s falling onto [the complainant]’s foot when her foot was sitting up in the air, presumably in the instant after she fell onto the step, causing the foot to rotate as it was crushed, fracturing the tibia. Quite apart from such action not being described by Ms Tooman, and this mechanism being somewhat inconsistent with her explanation, Dr Donald himself accepted the mechanism causing such injuries is “strange”. The sequence of events described by him in interpolating from Ms Tooman’s stated account does not strike me as a reasonable possibility.
[71] Most significantly, Dr Wilson and Dr Kelly gave evidence that [the complainant]’s combination of injuries was in keeping with abusive trauma and extremely unlikely to occur in the mechanism described by Ms Tooman. Dr Kelly said more strongly, as noted earlier, that he has never seen a femoral fracture, combined with the head injuries reported, from an accidental fall. He said he had seen the combination once or twice a year in cases of head trauma inflicted as part of an assault.
[72] Dr Kelly considered that the most likely explanation of [the complainant]’s symptoms was that she was held by her legs and slammed against something, likely a thinly padded surface or a surface with some give in it and that movement both fractured her femur and injured her leg. He said the metaphyseal fracture also required a degree of force, but he could not say whether it was part of the same mechanism.
[73] As clearly emerges, Dr Donald’s suggestions as to how Ms Tooman’s account can be reconciled with the reported injuries rely materially on how Ms Tooman might
have answered further questions and I have to view them as in large part speculative. As it is, as noted above, I would consider the statements Ms Tooman did make inconsistent with the elaborated scenario presented by Dr Donald. At its highest, Dr Donald’s evidence suggests an innocent mechanism by which Ms Tooman could have accidentally inflicted [the complainant]’s injuries. It is very unlikely, however, that the mechanism described by her in fact accounts for those injuries.
Is Ms Tooman’s account of accidental injury a reasonable possibility?
[74] I do not accept Ms Tooman’s account of accidental injury as a reasonable possibility.
[75] First, her account is quite inconsistent with the medical evidence and my findings in respect of that as I have already detailed.
[76] Secondly, Ms Tooman’s credibility is seriously dented by the acknowledged lie of her first account when she said that she did not know why [the complainant] was unresponsive. As I said earlier, people lie for a number of reasons which should be carefully considered before treating the lie as a reflection on their credibility. In this case, Ms Tooman says she did not tell the truth because she did not know what to do and was scared. I do not find that plausible. She came up with her story that she did not know what happened immediately following [the complainant]’s injuries, and in talking to family members when there was no question of Police involvement and she would not have had time to even think of Police involvement. I can see no reason for her to be scared of her children, partner and father, or to have the presence of mind if she and [the complainant] had suffered a bad fall to think ahead to what the Police or others might think. I also find it extraordinary that Ms Tooman even went to the extent of recording at great length in her diary the details of her first account, the substance of which she subsequently said was untrue. She would not do that if she had an alternative innocent explanation. The detailed precise recording by her suggests a cover-up.
[77] Third, Ms Tooman’s second version, that it was an accident, emerged only after the family group conference, some four months after the incident and in response to
what will have been obvious questions hanging over her head arising out of the lengthy medical report at that conference.
[78] Fourth, I agree with Mr Rhodes that there would be no reason for Ms Tooman to have made the internet searches as she did a few days after the incident if in fact she knew what had happened. The topics of these searches included “how can babies get blood on the brain” and “how can a baby get a broken leg”. This suggests she was attempting to fabricate a false narrative.
[79] I also agree that if Ms Tooman knew that the injuries flowed from falling on the concrete steps, even if she covered that up out of fear for herself, she would have called out immediately for help from her brother once she got inside, or before that, which it seems she did not do. And if it were true that there was a sound of [the complainant]’s head cracking open she would not have first described stopping to pick the rock out of her foot. There are other aspects of her account which are implausible including the prospect that in falling on [the complainant], as she fell over the steps, she managed to both have [the complainant]’s head at her chest height and her knees on top of [the complainant]’s legs given [the complainant]’s very small size. Generally the story as Ms Tooman told it in her second DVD interview did not ring true but I place less weight on this point than on the others.
[80] For all of these reasons I reject Ms Tooman’s second DVD account as being a reasonable possibility.
Consideration of the Elements of the Charge
Do the proven injuries amount to GBH?
[81] As already noted [the complainant]’s injuries are not in dispute and are accepted in totality as amounting to GBH. I have set these out earlier.
Causation: Were the injuries accidentally or intentionally inflicted?
[82] The first question for me to consider therefore is whether I am sure that Ms Tooman intentionally as opposed to accidentally caused [the complainant] GBH. I am sure that is the case for a number of reasons.
[83] First, while I have to take care not to jump from a rejection of Ms Tooman’s accident story, the net effect of her evidence is that she accepts she caused the injuries. Having rejected accident as an explanation, the only reasonable explanation is that the injuries were inflicted intentionally by her. The Crown’s medical evidence was that the injuries were intentionally inflicted. Dr Donald appeared to agree that if Ms Tooman’s account were rejected then intentional infliction of injury was the only reasonable possibility remaining. I note these matters without relying on them unduly because coming to that conclusion is a matter for me not the medical experts.
[84] I also accept the Crown’s argument that there is no other reasonable possibility, or even any possibility, available on the evidence. While Ms Tooman and other family members raised the possibility earlier of [the middle daughter] having caused the injuries that was not a possibility left open even on Ms Tooman’s evidence and in particular was not possible because the force required to cause [the complainant]’s injuries could not have come from a child. As is apparent from my chronology, Ms Tooman was the only adult who had care of [the complainant] at the relevant time, or for some period leading up to that time, and there is no suggestion any other adult was in the house until Dennis Tooman was called in after [the complainant] was not responding.
[85] Also, I accept that text messages sent by Ms Tooman to Ms Paddock, a friend in Australia, between 19 and 22 June 2017 demonstrate a propensity on Ms Tooman’s part to behave violently towards [the complainant] as a result of stressors in her life, particularly those associated with her intimate relationship. The three most pertinent messages are as follows:
19 June 2017 at 4.16 pm: […] can u please do me a favour and msg this cockhead and tell him to realise the age difference n whatever else, coz I'm going to hurt this baby one of these days I just squashed the shit out of her again.. I gotta fuckin stop but he needs to stop making me go far
22 June 2017 at 12.37 pm: I have had the crapiest last 4 days. I'm meant to b going to nz 2mrw but everything has turn to shit […] last night I was in the middle of cooking n had [my partner] in my ear had another argument. So took it out on the baby which is fucked
22 June 2017 at 12.45 pm: Well if I didn't want to I would have voiced myself but like I said my life [at the moment] is fucked n il continue to take it all out
on Bub I don't give a fuck no more […] no one really understands how much I go through.. I won't have a phone soon..
[86] The question as to whether these texts are admissible as propensity evidence was not contested but I need to turn my mind to the point nonetheless.
[87] I accept that they are propensity evidence in that they tend to show a propensity to act in a particular way or have a particular state of mind.25 In particular they point to a propensity by Ms Tooman to behave violently towards [the complainant]. They go to the question at issue of whether Ms Tooman intentionally caused serious harm to [the complainant].26
[88] I am also satisfied that the probative value of the texts outweighs the risk of unfair prejudicial effect on Ms Tooman for a number of reasons.27 The language in the texts is suggestive of a regular pattern of violent behaviour.28 There is a close connection in time between the texts and the date of [the complainant]’s injuries, which the experts agree are likely to have all occurred on 11 July 2017.29 There is a similarity between the acts and circumstances.30 There is not the same relationship stress evident on 11 July 2017 – texts between Ms Tooman and [her then partner] from that day, as well as [her then partner]’s evidence, indicate there was no immediate conflict at that time. But I accept there would still have been significant stressors on Ms Tooman. The relationship stressors will not have evaporated. There was also the isolation she refers to in her first DVD interview, her having care of the four children and the children’s illness. Also, the actions referred to by Ms Tooman in the texts and alleged on the charge are unusual.31 Further, I take into account that Ms Tooman had no reason to lie about her actions in her messages to Ms Paddock.32
[89] I therefore take the propensity indicated in these texts into account, but I have been careful not to place undue weight on them.33 I bear in mind that there is no
25 Evidence Act 2006, s 40.
26 See s 43(2).
27 See s 43(1).
28 See s 43(3)(a).
29 See s 43(3)(b).
30 See s 43(3)(c).
31 See s 43(3)(f).
32 See s 43(3)(e).
33 See s 43(4).
evidence of actual injury resulting from the actions Ms Tooman references in the texts. Also relevant to this point is the evidence given by [her then partner] as to his relationship with Ms Tooman and his impression of her as a mother. While noting his relationship with Ms Tooman had “rocky moments”, including immediately prior to moving to New Zealand, [her then partner] said she had tried hard with all of the children but especially hard with [the complainant], that their relationship had been at its best ever since they moved, and that, even prior to the move, he had never seen Ms Tooman threaten or harm the children.
[90] While I accept that [her then partner] had a positive view of Ms Tooman as a mother, and that their relationship had improved since coming to New Zealand, I accept it is likely that stress factors were present on 11 July 2017. The text messages demonstrate a propensity on Ms Tooman’s part, in such circumstances, to intentionally harm [the complainant].
[91] For all of the reasons I have referred to, I am satisfied beyond reasonable doubt that Ms Tooman intentionally, as opposed to accidentally, caused GBH to [the complainant].
Did Ms Tooman act with a specific intent to cause GBH?
[92] Finally, I have to consider whether at the time the harm was done, Ms Tooman had the specific intent to cause GBH. There is no direct evidence in that regard. However, I have reached the view that I am sure there was intent on the part of Ms Tooman on the basis of significant inferences that I can draw from the evidence.
[93] The injuries were severe. [The complainant] was only 10 weeks old (corrected for prematurity) and I have already accepted the medical evidence as to the level of force required for the injuries that she suffered. I accept that the likely mechanism is along the lines outlined by Dr Kelly and no one could take action such as that with a small baby without intending serious harm. I also consider that Ms Tooman’s text messages to Ms Paddock indicate an intent, or at least anticipation, of her doing serious or material harm to [the complainant]. As the Crown notes Ms Tooman said in those texts that she would “hurt” [the complainant] one of these days and that she would “continue to take it all out on bub” as she didn’t “give a fuck no more”.
[94] On the strength of the above, while accepting that Ms Tooman may well have been immediately regretful for what she did, I have to conclude that the Crown has proven beyond reasonable doubt that she intended to cause [the complainant] GBH.
Verdict
[95] It follows that I find each element of the charge proven beyond a reasonable doubt. I therefore find Ms Tooman guilty of the charge of causing GBH with intent to cause GBH to [the complainant] and I enter a conviction accordingly.
Postscript
[96] I record that nothing said by [Ms Tooman’s then partner or the eldest child] was incriminating of Ms Tooman, if anything to the contrary. Also I wish to acknowledge all witnesses for giving evidence and in particular the ambulance officers and medical experts who fulfil difficult roles.
Hinton J
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