AW v R

Decision: (1) Leave to appeal on grounds 1 and 3 granted but leave to appeal on ground 2 is refused.
(2) Appeal dismissed.

Catchwords: CRIME - appeals - appeal against conviction – application of proviso - joint criminal enterprise – directions to jury as to elements of offence – Crown conceded that trial judge misdirected the jury – miscarriage of justice established – whether no substantial miscarriage of justice actually occurred – where there was no substantial miscarriage of justice and the proviso should be applied
CRIME - appeals - appeal against conviction - unreasonable verdict – if manslaughter was excluded as having been the appropriate verdict – where evidence before the jury amply supported a verdict of murder

Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Criminal Appeal Act 1912 (NSW), s 6(1)
Evidence Act 1995 (NSW), s 66A

Cases Cited: Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439
Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64
Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Likiardopoulos v The Queen [2012] HCA 37
Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
R v LN; R v AW (No 10) [2017] NSWSC 1387
R v LN; R v AW (No. 11) [2017] NSWSC 1430
R v Taufahema (2007) 228 CLR 232; [2007] HCA 11
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Xu v R [2023] NSWCCA 93

Texts Cited: Nil.

Category: Principal judgment

Parties: AW (applicant)
Crown (respondent)

Representation: Counsel:
D. Dalton SC; T. Weller-Wong (applicant)
G. Wright SC; W. Liu (respondent)
Solicitors:
Just Defence Lawyers (applicant)
Office of the Director of Public Prosecutions (respondent)

File Number(s): 2014/274229

Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify the victim’s half-sister is prohibited.

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 18 April 2017, LN and AW were convicted of the murder of Joseph (or Joey), who died, aged 3 years and 4 months, on 6 August 2014 following sustained abuse by LN (his mother) and her partner (AW). LN and AW were tried on a joint indictment.

The Crown case against AW at trial was based upon his participation in an extended joint criminal enterprise with LN. The Crown alleged that LN and AW participated in a joint criminal enterprise, from 13 June 2014, to assault, beat and ill-treat Joseph, and that AW, while engaged in that joint criminal enterprise, must have foreseen the possibility that LN would commit a deliberate act upon Joseph with the intent at least to cause grievous bodily harm (the requisite intention for murder). Further, the Crown alleged that LN deliberately assaulted Joseph with the requisite intention, causing his death.

The trial judge’s written directions to the jury at paragraph 9 addressed the elements that the Crown had to prove beyond reasonable doubt to establish that AW was guilty of murder. Element 9(d) went to proof that LN, as a party to the joint criminal enterprise, killed Joseph with the requisite intention for murder. Element 9(e) went to proof that AW foresaw the possibility that LN would intentionally inflict grievous bodily harm in the course of the joint criminal enterprise to assault the deceased.

The trial judge directed the jury that in deciding whether the Crown had proved its case against AW in respect of each of the elements in paragraph 9, other than 9(d), they must only use evidence that was tendered against AW. Relevantly, there were admissions of LN admitted into evidence in her trial that went, in particular, to the issue of whether she had the intention (at least) to cause grievous bodily harm to Joseph.

AW sought leave to appeal, out of time, against his conviction, relying on the following three grounds of appeal:

(1) The trial judge erred in his Honour’s directions to the jury in respect of how they were to use the evidence in the separate trials of LN and AW (ground 1);

(2) The trial judge erred in leaving murder to the jury in respect of AW on the basis of extended joint criminal enterprise (rather than joint criminal enterprise) (ground 2); and

(3) The conviction was unsafe and unsatisfactory in that it was unreasonable and could not be supported having regard to the evidence pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW) (ground 3).

In respect of ground 1, the Crown conceded that the trial judge’s directions were erroneous because they implicitly allowed the jury to have regard to evidence admissible only against LN when deciding whether it had been proved against AW that LN murdered Joseph. However, the Crown submitted that this error did not result in a miscarriage of justice or, in the alternative, that the appeal should nonetheless be dismissed under the proviso in s 6(1) of the Criminal Appeal Act as no substantial miscarriage of justice occurred.

Held, granting leave to appeal, except in respect of ground 2, but dismissing the appeal:

As to the extension of time per Stern JA (Fagan and Ierace J**J agreeing at [96] and [143] respectively):

(1) The merits of the proposed appeal are such that an extension of time should be granted for filing the notice of appeal: at [9].

As to ground 1:

(2) Consistent with the Crown’s concession, the primary judge erred in directing the jury that they could have regard to evidence admissible only against LN for the purpose of AW’s trial: Stern JA at [67], Fagan J at [97], Ierace J at [150].

(3) AW’s contention that the erroneous direction to the jury would have caused confusion and a risk that the jury had regard to evidence inadmissible against AW also in their consideration of element 9(e) should be rejected. The jury were clearly directed only to have regard to evidence admissible against AW as regards element 9(e) and there is no reason not to assume that the jury followed this direction: Stern JA at [69]; Fagan J at [98].

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15, cited.

(4) Although in many aspects the evidence of LN was also reflected in evidence that was properly admitted against AW, there was a real chance that the erroneous direction affected the jury’s verdict, as the jury may have placed weight on evidence admissible only against LN, including her thoughts of killing Joseph and of jamming his head in a door shortly before his death. This had the capacity for practical injustice: Stern JA at [73]; Fagan J at [96], Ierace J at [163].

(5) The evidence of FN (LN’s son) as to what he heard LN say, in the absence of AW, was hearsay and thus inadmissible against AW unless it was admitted for a non-hearsay purpose or it came within an exception to the hearsay rule, relevantly s 66A of the Evidence Act 1995 (NSW). Given that FN did give evidence of words spoken by LN that would appear to come within the terms of s 66A and that AW did not contest the issue, this evidence could be taken into account as admissible against AW and relevant to the fact in issue of whether LN committed the fatal assault: Ierace J at [153]-[156].

(6) Based on a review of the whole of the evidence tendered at trial, element 9(d) was proved by an overwhelming body of evidence admissible against AW, independent of and unaffected by any evidence that was admissible only against LN. There was no substantial miscarriage of justice and the proviso in s 6(1) of the Criminal Appeal Act should be applied: Stern JA at [76]-[87]; Fagan J at [97]-[135], Ierace J at [164].

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14, Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7; Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited.

As to ground 2 per Stern JA (Fagan and Ierace JJ agreeing at [136] and [143] respectively):

(7) AW did not contend that the trial judge had erred in the direction his Honour gave to the jury as to the essential elements which must be established to find AW guilty of murder. No prejudice was caused to AW arising out of the error alleged in ground 2: [88].

As to ground 3:

(8) The evidence before the jury amply supported a conclusion, beyond reasonable doubt, that AW foresaw at least a possibility that LN’s assaults upon Joseph would culminate in a beating or other form of violence that would be accompanied by intent to cause grievous bodily harm and would turn out to be lethal: Stern JA at [93]; Fagan J at [140].

JUDGMENT

1. STERN JA: The victim in this tragic case, whom I will refer to as Joseph (or Joey), was born on 13 April 2011 and died, aged 3 years and 4 months, on 6 August 2014. Joseph’s death followed sustained abuse by his mother and her partner (the applicant before this Court) over a period of at least 4 weeks, which left Joseph seriously injured and weakened, before a final assault by his mother killed him. I will refer to Joseph’s mother as LN and to the applicant as AW having regard to the effect of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). On 18 April 2017, LN and AW were convicted of Joseph’s murder. On 12 October 2017, AW was sentenced to a term of imprisonment of 40 years, with a non-parole period of 30 years: R v LN*;* R v AW (No 10) [2017] NSWSC 1387.

2. The Crown case against AW was based upon his participation in an extended joint criminal enterprise. The Crown alleged that LN and AW participated in a joint criminal enterprise, from 13 June 2014, to assault, beat and ill-treat Joseph, and that AW, while engaged in that joint criminal enterprise, must have foreseen the possibility that LN would commit a deliberate act upon Joseph with the intent at least to cause grievous bodily harm. Further, the Crown contended that in the course of that joint criminal enterprise, LN deliberately assaulted Joseph with the requisite intention, thereby causing or substantially contributing to his death. The Crown was not able to identify any one act or the particular time when this assault was committed.

3. AW was tried on a joint indictment with LN.

4. AW’s notice of appeal was not filed until 9 July 2024, a notice of intention to appeal having been filed on 13 October 2017. AW seeks leave to appeal, out of time, against his conviction. He relies upon three grounds:

5. The trial judge erred in his directions to the jury in respect of how they were to use the evidence in the separate trials of LN and AW, and in particular, that they could use all the evidence admissible against LN (which included her interviews and the tendency evidence which was not admitted against AW) in considering the element of the Crown case against AW that LN had killed the victim with the requisite intent for murder.

6. The trial judge erred in leaving murder to the jury on the basis of AW’s participation in an extended joint criminal enterprise. In oral submissions, Senior Counsel for AW explained that the key contention in this ground was that the Crown case should have been that there was a joint criminal enterprise between LN and AW to kill Joseph and that part of that enterprise, or agreement, included that Joseph should be assaulted so as to cause grievous bodily harm with the requisite intent for murder. Senior Counsel conceded that no contention to this effect was put at trial, and that he needed leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) to advance such a ground on appeal.

7. The conviction was unsafe and unsatisfactory in that it was unreasonable and cannot be supported having regard to the evidence pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW).

8. The Crown concedes that it would be open to this Court to uphold the error underlying ground 1 but submits that no miscarriage was occasioned thereby or, in the alternative, that the appeal should nonetheless be dismissed under the proviso in s 6(1) of the Criminal Appeal Act as no substantial miscarriage of justice occurred.

9. For the reasons set out below the appeal should be dismissed.

Extension of time

7. An affidavit of Eloise Howard, affirmed 9 July 2024, is relied upon by AW in support of his application for an extension of time. That affidavit discloses a considerable period of largely unexplained delay between 15 May 2017, when the Legal Aid Commission granted funding for counsel to prepare an advice and counsel was provided with all the materials, and 10 May 2022 when the Legal Aid Commission transferred the grant of aid to AW’s current solicitors. Senior Counsel for AW told the Court (without objection by the Crown) that there had apparently been correspondence from trial counsel during this period of unexplained delay. Thereafter, albeit without any apparent sense of urgency, counsel was briefed, further material was sought from the Court and the Crown, and advices and submissions were provided by counsel.

8. The Crown opposes AW’s application for an extension of time for filing his notice of appeal, having regard to the length of the delay and the prejudice occasioned thereby.

9. When considering whether to grant an extension of time, the overarching question is the interests of justice: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) at [33]. Relevant factors include the merits of the proposed appeal and the prejudice occasioned by re-opening a concluded criminal proceeding: Kentwell at [32]-[33]. As was recognised in Kentwell at [29], “[t]he review of an old conviction may raise consideration of the capacity to hold a new trial that is fair to both sides”. Here, as the Crown contends, there is a real risk that witnesses’ memories may have dimmed, and that a retrial would cause acute stress to Joseph’s family, many of whom gave evidence in AW’s trial. Notwithstanding this and bearing in mind the Crown’s (albeit limited) concession on ground 1, the merits of the proposed appeal are such that an extension of time should be granted for filing the notice of appeal.

Leave to appeal

10. Ground 2, as advanced on the hearing of the appeal, requires leave under r 4.15 of the Criminal Appeal Rules. Given that, for the reasons set out below, no injustice was caused by the matters alleged, leave should be refused: Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26 at [82]-[90].

11. Ground 3 requires leave to appeal. In the interests of finality, I would grant that leave: Xu v R [2023] NSWCCA 93 at [40] (N Adams J, Garling and Hamill JJ agreeing).

Overview of factual background

12. Below I set out some of the factual background to AW’s conviction, by reference only to evidence admissible against AW.

Joseph’s background

13. Joseph’s biological father, whom I will refer to as VS, died on 20 December 2010, nearly 5 months before Joseph was born. In a police interview, AW described LN as being unable to cope following the birth of Joseph, ostensibly due to the death of VS and birthing complications LN had experienced. Joseph lived with his maternal grandmother, aunt, uncle and cousins until 13 June 2014. He was described by his aunt as an “agile” and “athletic” child who was well behaved and very affectionate during that time. He went to live with LN and AW on 13 June 2014 because LN said she wanted him back and the extended family did not want to “go through the courts”.

Assaults to and injuries of Joseph after 13 June 2014

14. From 13 June 2014, Joseph lived in LN and AW’s house in Oberon with LN, AW, LN’s son FN (who was then aged 22) and LN and AW’s daughter, referred to at trial as Mary, who was born on 22 March 2013. According to FN’s evidence, everything was ok for the first few weeks after Joseph came to live with LN and AW, but that there were what can only be described as repeated incidents of physical abuse of Joseph by LN and AW thereafter. It is apparent from FN’s evidence that this abuse escalated over the period, beginning with smacking whilst Joseph was wearing a nappy, then developing to hitting him with a wooden spoon hard enough to leave an imprint of the spoon and bruising, forcing him, naked, into ice baths, pushing (including into walls), using a wooden spoon and other implements to open his mouth, pouring salt into his mouth, force feeding him whilst he was lying down, wrapping him in a blanket and taping all around him with duct tape, taping a ball into his mouth, duct taping over his eyes then ripping it off, and on at least one and probably two occasions, violent shaking. According to FN, the “disciplining” of Joseph by LN and AW “got a lot worse as time went on”. Further detail of these assaults is set out below.

15. Neither AW nor LN gave evidence at trial, but recordings and transcripts of their police interviews were tendered by the Crown. AW’s interviews, together with evidence from FN, show that LN assaulted Joseph on multiple occasions, including in AW’s presence, and that AW also assaulted Joseph on multiple occasions, including in the presence of LN. The evidence also discloses that both LN and AW took steps to hide or diminish the bruising, swelling, and marks caused by these assaults, so as to avoid their abuse of Joseph being detected.

16. Evidence from AW’s police interviews and intercepted telephone calls (all of which was admissible against AW) details some of the assaults on Joseph by LN and AW and shows the joint enterprise between LN and AW that Joseph would be assaulted, beaten by them and ill-treated. Whilst it is unnecessary to detail all such evidence, the following gives a flavour:

17. AW had kicked Joseph in the groin and LN witnessed this.

18. LN had hit Joseph on the hands and back of the legs and had pushed him against a wall. AW also said there had been a couple of occasions when LN had smacked Joseph and he had seen her use the wooden spoon on Joseph.

19. AW had hit Joseph causing bruising on a few different occasions and had smacked him on the leg with a wooden spoon. LN and FN had on that occasion told him not to discipline Joseph and AW had said, “[f]ine” but told them that “if he needs discipline… you can take care of it or whatever”. AW said that he had smacked Joseph with a wooden spoon on the hands, legs and once on the front of Joseph’s head.

20. AW had “flicked” Joseph twice in the groin area, above and on the penis, with a wooden spoon. At the time there was no clothing or nappy covering Joseph’s penis and afterwards it was swollen. It must have been with “some kind of force” for Joseph’s penis to swell up.

21. AW had split Joseph’s lip by putting a wooden spoon in Joseph’s mouth to keep his mouth open. AW described Joseph’s lip as “puff[ed] up” the next day.

22. On two occasions, AW had used a butterknife or a nailfile to pry open Joseph’s mouth. AW said this was because Joseph was clenching his teeth and AW was worried about them locking, or because Joseph was biting and his teeth were cracking. This was done in the presence of LN. AW said he did that “the night before”, which I infer is the night before Joseph died.

23. LN and AW put a soft, plastic ball the size of a tennis ball in Joseph’s mouth, with the ball in his mouth, taped his mouth shut with duct tape. AW said of this that he knew “it sounds bad”. FN said that he saw this happen at a time when Joseph was also wrapped in a blanket with duct tape wrapped all around him.

24. AW also put duct tape over Joseph’s eyes. AW said that he put tape across Joseph’s eyes “[o]nly once or twice” and that this was a “fair while before” 3 August 2014. On one occasion AW just ripped the tape off, but on the other occasion he removed the tape slowly.

25. AW knew LN and FN had also inflicted “some stuff”.

26. One morning Joseph woke up with “a massive black eye”, which AW said he thought “he’d done… himself”.

27. LN had told AW that sometimes she would push Joseph and he would hit the wall “not extremely hard”. When asked how Joseph got marks on his temple area or forehead, AW responded that he had “seen occasions where [LN] actually pushed him hard against the corner of the door and the wall”.

28. AW had seen LN shake Joseph. One time, “a long time before” 3 August 2014, AW had shaken Joseph “[o]nly lightly but like not violently”, and AW had seen LN also shake Joseph but it was “way before the accident” and “not really a shake”. AW said that he had seen “a couple of minor” instances of shaking, but LN had told him that “she’s shaken him, like really bad, I don’t know when specific date but I know she’s said it”. He said that “out of blue” LN had said “I shook the shit out of [Joseph]”. When asked when this was relative to 3 August 2014, AW said it might have been days or a week earlier, but he was not sure. He said that after the date when LN told him about this, Joseph “might have been, I don’t know, a lot more quieter, I don’t know”.

29. LN told AW that she had had thoughts of killing Joseph. AW said that he thought that she was just saying that, like when she said she was going to harm herself. AW was also recorded by a listening device telling LN that he had told the police that she had told him about her thoughts of killing Joseph “back … then”, but that he had said that this did not mean that she would do it. AW also told the police that in an earlier police interview he had left out “about [LN] saying about harming Joey”.

30. FN’s evidence (also admissible against AW), some of which is set out below, also strongly supports the existence of the joint criminal enterprise:

31. LN and AW both smacked Joseph “much more aggressively” than Mary was smacked, and Joseph was hit “everywhere” on his body with the wooden spoon. On at least one occasion Joseph’s clothing was “stripped from him [by AW] when he was getting a smack” whilst LN was sitting beside him. Also, LN smacked Joseph in the head with a wooden spoon and it “wasn’t gentle, either”.

32. After Joseph had been living with LN and AW for about four to five weeks, they wrapped a blanket around him and put him in a rocker. The second time this was done, the blanket was taped with duct tape over Joseph’s entire torso. FN’s evidence was that when this happened, Joseph was crying but as soon as “he was completely tied up … he was just quiet”.

33. Once, when Joseph was lying on the floor, hands by his sides, LN kicked him in the torso and called him a “fucking idiot”. When this happened Joseph cried, laying on the floor and did not get up.

34. Joseph would be made by AW to do “jaw exercising” which, towards Joseph’s death, involved placing the wide end of a wooden spoon in Joseph’s mouth and pulling his mouth up and down for 15 minutes. When that happened, Joseph would start screaming and try to pull the spoon out. LN was sitting in the chair beside Joseph when this happened.

35. When Joseph had injuries to his mouth AW would put saltwater into his mouth. FN also described AW as pouring salt into Joseph’s mouth.

36. On one occasion (it is not clear if it is the same occasion that LN told AW about), LN grabbed Joseph by the shoulders, picking him up, and shook him quite aggressively, yelling out “I wish I never had you”. LN shook Joseph back and forth for what FN thought was a couple of minutes. FN said that when Joseph was being shaken, his head was “flopping back and forth” and after the shaking stopped, LN threw Joseph to the ground and he just lay there crying. After that, Joseph was “all over the place”. FN said “it was nasty”.

37. FN told the police that LN openly said “sometimes I wish I killed Joey” and that AW was present when she said this. FN said that when LN said this she was “crying and having a crying fit”. LN also said that she was “sick of” Joseph and wanted to “pummel his head” or “knock his head off” with a baseball bat. Often LN would say that she wished she “never had Joey”.

38. There is also evidence from various medical and healthcare practitioners of significant injuries having been sustained by Joseph from 30 June 2014, and of attempts being made by LN and AW to hide these injuries.

39. On 30 June 2014, LN and AW took Joseph to a child and family health clinic because AW thought Joseph had rickets. Sarah Martin, a registered nurse at Oberon Health Service, saw a number of small sores visible on Joseph’s face, arms and feet which appeared to be covered by Mercurochrome. Ms Martin said Joseph presented as “a very sad, scared little boy” who was either standing up quietly crying or curled up on LN’s lap. On 2 July 2014, when Joseph was seen by Katrina Holland at Bathurst Dental Clinic, he was noted to be wearing a jacket with a hood and had a beanie on. Ms Holland described Joseph to be “well covered up”. She said:

“we took his jacket off because it was quite warm in there and his beanie and he had marks all over his face, he had bruises on the back of his head. He had a spatula mark like the shape of a spatula …. [which was] a rectangle shape with lines through it and it was a very pronounced red mark.”

20. That mark was on the side of Joseph’s face. Ms Holland also described bruises on the back and sides of Joseph’s head and scabs on his face, the back of his head and on his arms that looked like “little burns”. When LN and AW were asked what had happened to Joseph’s face, AW replied that Joseph “couldn’t walk properly” and was always falling over and bumping his head and that the little marks on his face were from him picking at his face. On that occasion, the dental officer advised LN and AW to take Joseph down to the Emergency Department to make sure he did not have concussion or some serious lasting injury related to the marks on his head (and apparently they did go to the Emergency Department and an appointment was made to see a paediatrician, although there is no evidence of Joseph actually attending any such appointment).

21. Jennifer James, the dental therapist present at the attendance on 2 July 2014, said that Joseph had a graze starting at the forefront of his forehead and extending down along his nose. Ms James asked how this had occurred and AW replied that the graze was caused by him “falling over” and that it was a “carpet burn”. She described Joseph presenting as a “very sad little boy” who had “tears running down his face” throughout the consultation.

22. AW took Joseph to see Dr Narayan Prasad, a dentist at the Bathurst Dental Clinic, on 7 July 2014. Dr Prasad said that Joseph was dressed in a jacket with a hood and also had a beanie on, and these remained on during the consultation. Dr Prasad did not see “much signs left” of the bruising and grazes noted on 2 July 2014.

23. In a police interview, AW agreed that, for the benefit of himself and LN, he applied Penetrene (a horse liniment oil) and Mercurochrome cream to try to cover up the injuries inflicted on Joseph. He said he tried to ice out the blackness of bruising so that it would not be so obvious when he took Joseph to the paediatrician. AW told the police that, for the purpose of dealing with bruising to the back of Joseph’s legs, some of which was caused by AW hitting Joseph either with his hand or with a wooden spoon, on two occasions he put Joseph, naked, in an esky filled with iced water and ice, for five to ten minutes. He shut the lid of the esky for some of the time on either one or both occasions because Joseph was trying to get out. LN was present on both of these occasions. In a statement FN said Joseph was in the esky for 5-10 minutes but in cross-examination FN said it may have only been for one to two minutes. FN described Joseph screaming when this happened. FN said that while this was happening, LN was in the room, sitting on a chair. FN said that the bruises that the ice bath was meant to treat were “all over him”. He said that this was “at least a week, maybe even two” before Joseph’s death.

24. FN’s evidence was that before the first of these incidents both LN and AW were “asking [him] if there was any way of getting rid of” the bruises.

25. AW agreed that he knew about injuries over the whole of Joseph’s body but did not draw this to the attention of any paediatrician, family or community services (formerly DOCs) personnel or police and that, if anything, he tried to cover it up for the benefit of “[himself], [LN], I don’t know”. In his interviews with police, AW admitted assaulting Joseph on multiple occasions, and also said he saw or was told by LN of assaults by her on Joseph, during the period between 13 June 2014 and 3 August 2014.

26. On autopsy, the retinas in both of Joseph’s eyes were found to be detached, which would have caused some visual disturbance. Dr Brouwer, the forensic pathologist who carried out the autopsy, explained that these injuries are typically described in infants with “acceleration-deceleration type of forces that pull on the structures of the eyes, causing tears or retinal detachment”. There was some evidence as to when these injuries were likely to have occurred. FN said that in “the last week” there was “something amiss” with Joseph’s eyesight, almost “like as if you see a blind person when they try to look at you, they don’t actually look at you”. David Whitley, an electrician, visited LN and AW’s home on 28 July 2014. He said that he saw a little boy (who must have been Joseph) sitting on the floor with his back leaning against the lounge, and that he didn’t move or say anything. Mr Whitley said:

“… it was as if his eyes were fixed. You could nearly say he was blind, he just didn’t look, didn’t see, he didn’t acknowledge me, was just staring at the same spot”.

27. Mr Whitley later asked if Joseph was autistic because he assumed from this that Joseph had some sort of issue.

28. The evidence set out above, all of which was properly admitted against AW at trial, clearly establishes that in the period between 13 June and 3 August 2014 Joseph was seriously assaulted, and that those assaults caused significant injuries to Joseph in the form of abrasions, bruises and the detachment of both retinas, and that his condition had deteriorated to the point that he was visually impaired and would not eat or drink. The extent of these injuries is not surprising given the evidence of ongoing assaults by both LN and AW.

Events in the days leading up to 3 August 2014

29. FN gave evidence as to what occurred in the days leading up to 3 August 2014. He said that three days before (or possibly three days before 6 August 2014), he observed a number of injuries to Joseph’s head: a graze to his forehead above his right eye “about the size of a 20 cent coin”, a graze the same size near both of his temples and his lips looked like they were dry. FN said that Joseph’s lips looked as if he had not had water for days.

30. He also said that “recently, before” 3 August 2014, near the start of the week before Joseph died, FN was in his room when he “heard a loud thud… like something had dropped or something heavy” at around 8 pm at night. He said he went to “check … out” what had happened and that he saw Joseph sitting in the hallway. When FN put his hand on Joseph’s shoulder, Joseph screamed. FN described Joseph as laying face down in the hallway and FN could see a graze on the right side of his head near his temple. AW and LN were there. FN’s evidence was that AW told him to leave Joseph alone as “[Joseph] is just being an idiot”, and LN told him not to worry about Joseph, to leave Joseph and that Joseph was “being a fuckhead”. He went on to describe Joseph as “having a fit”, “bashing himself towards the door, towards the wall”, and described him as “wriggling and crying”.

31. FN also said that on the afternoon of 2 August 2014 “something changed”. FN described LN as bursting into tears and trying to feed Joseph through a syringe, but that Joseph would not eat it. LN told AW not to touch Joseph and AW promised LN “not to touch [Joseph] again”. FN said that when LN was feeding Joseph with a syringe, he thought that LN had “just sort of snapped” and “started babying [Joseph] all of a sudden”.

32. FN said that in the last couple of days Joseph got to the point where he stopped looking at everyone. He also said that not long before 3 August 2014, LN was feeding Joseph with a syringe or eye dropper but then Joseph stopped eating or drinking all together and would not take any food. AW told police that Joseph was being fed milk by a syringe on the night of 2 August 2014.

33. Overnight on 2-3 August 2014, FN heard “a few thumps, like rustling” coming from LN and AW’s room where Joseph slept.

34. AW told police that he woke at around 7.30am or 8.00am on 3 August 2014 and he was “pretty sure” he had taken a Murelax that night. LN was already awake. Joseph was also already awake and was in the bouncinette (which he was clipped into at night). AB said that Joseph was quiet and LN said that she has been “up all night” with Joseph and that Joseph had been trying to get out of the bouncinette overnight. AW said Joseph then walked to the loungeroom and stood there, facing the wall.

The alleged park incident

35. It was suggested by FN, LN and AW that, on the morning of 3 August 2014, Joseph went to the park with LN, AW and Mary. LN and AW’s account was that whilst they were at the park with their two dogs, Joseph was tripped by a long rope tied between the two dogs whilst he was running. LN then carried Joseph home and an ambulance was called. This incident was the only alternative hypothesis postulated by the accused at trial as to how Joseph had sustained his fatal injuries.

36. As to this alleged incident the Crown called two witnesses, SM and BB. They gave evidence that they saw two adults and only one child with two dogs at the park around lunchtime on 3 August 2014. SM said that the child was “running around” and the rope hit the child and knocked them down. BB described the child as having “[l]ong, fairly light blonde hair”, and said that from that “we assumed it was a girl”. He did not see the child fall but “saw her stand back up”. He then saw the adult pick the child up and carry the child back over towards the house. He was adamant that there was only one child at the park with the two adults. He said that about an hour later an ambulance arrived and then a helicopter landed on the oval.

37. Senior Counsel for AW on appeal accepted that this evidence, together with the medical evidence discussed below, made AW and LN’s account of the park incident unlikely. In my judgment, there is no realistic possibility that Joseph suffered his fatal brain injury during an incident at the park. There was also no possibility of LN having tripped and dropped Joseph on the steps whilst carrying him back after the incident in the park, which was one explanation proffered by the accused at trial. That explanation is also inconsistent with FN’s evidence, which was that he grabbed Joseph before LN had come up the stairs of the house.

38. After a 000 call on 3 August 2014, paramedics attended Joseph’s home. They found that he was non-responsive, with no carotid pulse, no chest movement, no breath sounds, and in cardiac arrest. Joseph was taken to Westmead Children’s Hospital by emergency helicopter transfer and never recovered consciousness.

Evidence of Senior Constable Nocente

39. Senior Constable Christopher Nocente was in the Bathurst Centrelink office, off-duty, on 26 August 2014. He saw a male and female couple enter the office and overheard the woman speaking on the phone, describing going to the park and walking the dogs when “Joey was knocked over by the dogs. I took him home and called the ambulance”. She also said, “Joey would hit his head against the wall”. After the women ceased speaking on the phone Senior Constable Nocente heard the man say, “[y]ou’ve got to stick with that”. The Crown case at trial was that this couple was LN and AW and that AW was telling LN to stick with the false account they had made up to explain Joseph’s fatal injuries.

Findings on autopsy

40. Dr Brouwer identified that the cause of death was “hypoxic-ischaemic encephalopathy due to out-of-hospital cardiac arrest following blunt force craniospinal injury”. The hypoxic-ischaemic brain encephalopathy was caused by brain and neck injuries found at autopsy. Dr Brouwer said that when younger children are shaken there was usually “a triad of pathology findings”, being hypoxic-ischaemic encephalopathy, subdural haemorrhage and retinal haemorrhaging as well as injuries to the spinal nerves. All of these were identified on Joseph at autopsy. Joseph also had neck muscle injuries (involving necrosis or death of the neck muscles). The findings indicated that the mechanism of harm was acceleration-deceleration rotation. This could have been suffered by shaking, although the injury to the neck muscles, which could have been caused by direct impact or by a hyperextension flexion or whiplash injury, did not fit with this. As to the neck injury, she said that it was a “very good possibility that” being put in the esky could have caused this. Dr Brouwer said it was unlikely that this injury could have been sustained in the incident that LN and AW said occurred in the park.

41. Dr Brouwer could not “single out a specific injury that could have caused the blunt trauma injury that led to the hypoxic-ischaemic injury”. She considered that there could have been more than one mechanism of injury and it was difficult to know if the injuries occurred at the same time or hours or a day apart.

42. Dr Brouwer said that the injuries to the eyes “are usually described in the context of inflicted injuries, not accidental injuries”.

43. A number of other injuries were found on Joseph on autopsy. These included an oval-shaped abrasion on his neck, scab covered healing abrasions in almost symmetrical places in the temple areas on both sides of Joseph’s face which were covered with mercurochrome and which could be explained by Joseph’s head being jammed inside a wardrobe door. There was also an old subdural haemorrhage from a previous injury, and a recent contusion to the brain which was an impact injury and may have been a contrecoup injury (being an injury on the opposite side of an impact) or may have been itself from an impact.

44. Dr Michael Rodriguez, a neuropathologist who examined Joseph’s brain, eyes and neck vertebra, also gave evidence at trial. His evidence was that Joseph may have suffered a cardiac arrest due to trauma or may have suffered a cardiac arrest subsequent to brain injury. Dr Rodriguez found evidence of “blunt force craniospinal injury with subdural and subarachnoid haemorrhages, recent cerebral contusions and cervical paraspinal traumatic rhabdomyolysis” (muscle damage), all of approximately similar age but which could have occurred within a day or two of each other. He said the injury to the neck could be from stretching beyond its normal length or from contracting strongly. Dr Rodriguez said it was “very unlikely” that these injuries were occasioned by Joseph falling when tripped from the back by a rope in the park. He said:

“… lots of children fall over while they’re running and, in the literature, I’m not aware of similar cases where these kinds of injuries have been described, and the child has died.”

45. He also identified an older subdural haemorrhage which could have been weeks old. As to the subdural haemorrhages on both sides of the brain identified by Dr Brouwer, Dr Rodriguez said that these were at least several days old as at 6 August 2014 when Joseph died, but were “less than weeks old”.

46. Dr Terence Donald, a paediatric forensic physician who conducted a paper review of the medical evidence, and Dr Susan Marks, paediatrician and staff specialist in child protection at the Children’s Hospital in Westmead who saw Joseph between 3-6 August 2014, were also called by the Crown at trial. On the basis of the injuries identified at autopsy, Dr Donald considered that Joseph had been subject to “repeated physical assaults”. Dr Donald’s evidence was that the level of serum sodium chloride in Joseph’s system was unlikely from self-administration and, depending upon how long it had been present for, would have led to some effects on Joseph’s brain.

47. Dr Donald explained that, in his opinion, Joseph died from secondary changes consequent upon a primary head injury and subdural haemorrhages. He said that the secondary changes, being the brain swelling, take some time, hours or even longer, to cause problems. It could have taken 24 hours for those changes to lead to cardiac arrest.

48. Dr Donald considered that, rather than shaking, it was much more likely that “if he was grabbed and shaken, he was thrown against something”. Dr Marks, by contrast, said that the head and spinal injuries could have been caused by “a forceful acceleration-deceleration injury”, meaning a “repetitive to-and-fro motion or shaking”.

49. Dr Donald also said that if Joseph suffered a significant head injury from falling when running, he would be surprised if he would make any “voluntary movements”, other than perhaps to try and change position. Unless Joseph fell in the park whilst standing or walking, but not running, then “it’s a completely wrong explanation for the head injury”. Dr Marks’ evidence was similarly that a history of having fallen in the park, tripped by a rope attached to two dogs, “would not explain the injuries that [Joseph] had” even if he had fallen from running, as this would not create a repetitive acceleration-deceleration motion mechanism.

50. Dr Marks considered that Joseph’s eye-injuries were so extensive that she did not think he would have been able to see.

51. At trial, LN called Dr Johan Duflou, forensic pathologist, and AB adopted his evidence. Dr Duflou had conducted a paper review of relevant material. As to Joseph’s markedly raised sodium levels, he said that these could have been caused by ingesting salt or by losing water due to not taking in fluids or vomiting. As to the extent of Joseph’s injuries as documented by Dr Brouwer, Dr Duflou said:

“I think the injuries in general were too extensive to be of the type expected from even a particularly clumsy child.”

52. As to the earlier, healing, subdural haemorrhage noted at autopsy, Dr Duflou agreed that this “could have been an effect of vigorous shaking”.

53. In Dr Duflou’s opinion, it was “entirely possible” that Joseph’s fatal injuries were caused by two separate events, in the park and then by LN dropping him when she fell on the stairs when carrying him back from the park. Dr Duflou also considered that a complex fall in the park could have resulted in severe brain damage and death and that there could have been a short period of consciousness during which Joseph got up.

54. Dr Duflou “struggle[d]” to accept that there was multiple repetitive shaking to Joseph, sufficiently severe to cause death, as there were no fractures or joint injuries such as he would expect to see in such a scenario. However, he accepted that it was possible that Joseph would have been less able to resist shaking if the muscles in his cervical spine had already been damaged. Dr Duflou said that it was almost certainly the case that Joseph’s brain haemorrhage was caused as a result of a blow, or blows, being struck to the head, although he accepted that you could probably sustain a subdural haemorrhage without impact.

55. Dr Duflou said that if the evidence of an incident in the park were put to one side, it was possible that Joseph sustained an injury on the evening of 2 August 2014 that caused the brain damage which was ultimately fatal. He said that you could not say that the fresh subdural haemorrhage was not four, three or two days old. He also said that the muscle damage was a “very severe” injury and a person would not be able to keep walking around after suffering that injury and nor would someone “have the nerve damage and appear to behave normally”. Dr Duflou thought that the subdural haemorrhage, oedema of the brain, cervical nerve root and muscle damage were caused at the same time.

56. In light of my rejection of the park incident as a potential explanation of Joseph’s fatal injury, and given that there is no suggestion that there was any accidental injury to Joseph on 2-3 August 2014 other than that, the medical evidence is all consistent with Joseph’s fatal injury being caused by a serious assault resulting in brain injury and cardiac arrest up to around 24 hours prior to the ambulance arriving on 3 August 2014. As is apparent, this may have been from shaking, from a combination of shaking and Joseph’s head hitting a hard surface, or from some form of blunt force trauma. On the evidence which I have summarised above, the overwhelming likelihood is that LN did something to Joseph which caused his fatal brain injury. Given the evidence of the escalating assaults on Joseph, set out above, there is no real doubt that this involved a deliberate assault on Joseph.

57. The medical evidence is also consistent with Joseph having sustained multiple assaults, and occasioning multiple serious injuries, including retinal detachment, in the period of weeks prior to his death. The overwhelming likelihood is that those assaults and injuries were at the hands of LN and AW.

The Crown case

58. The Crown case at trial was that in the period between 13 June and 3 August 2014:

59. LN and AW had engaged in a joint criminal enterprise to assault Joseph;

60. AW was a party to that agreement;

61. AW participated in the joint criminal enterprise;

62. LN, as a party to the joint criminal enterprise, inflicted harm on Joseph by a deliberate act on or around 3 August 2014, with the intention (at least) to cause grievous bodily harm, and that act caused, or substantially contributed to, the death of Joseph; and

63. AW contemplated the possible intentional infliction of (at least) grievous bodily harm by LN upon Joseph during the course of the joint criminal enterprise and that, with that awareness, he continued to participate in the agreed joint criminal enterprise.

64. The Crown’s case was that between 13 June and 3 August 2014, AW and LN’s assaults on Joseph escalated in seriousness and severity and that by 3 August 2014 Joseph could no longer eat or walk, was visually impaired if not blind with detached retinas on both sides and had become unresponsive.

65. The Crown explained in its written submissions that its case at trial was based on extended joint criminal enterprise and not joint criminal enterprise.

66. In closing submissions at trial, the Crown submitted:

“In relation to proving this joint criminal enterprise, the Crown would say to you it just couldn’t be clearer. When you look at [AW’s] interviews, all the way through, “we did this”, “we did that”, “we did this to him”, “we took him there”, “and then we gave him this”. It is “we”, “we”, “we” all the time. It is always “we”. Of course they were always together. [FN] made the observation that [AW] didn’t do anything on his own. He was always with his mother or, if not, with him. He and these two accused were virtually a closed unit. Each assaulting the accused [AW] calls them “the assaults” when he is talking to the other accused on the phone. “The assaults.” He knows what they are.

They are both in an agreement. They didn’t sign a contract or anything, or necessarily have a conversation but they were almost in a contest to do more and more and worse and worse to him. There is one reference at one stage to [LN] telling the accused [AW] not to smack him. But you might think that might have been right at the end at the time when she decides that she wants to baby him.”

62. Later in closing, the Crown submitted:

“Ladies and gentlemen, the Crown says to you that [AW], knowing so well what he would see with [Joseph], even if he wasn’t present, what he knew of what [LN] was doing to him, well realised the possibility that she would cause him really serious bodily injury and mean to do it. That is why, in the unusual circumstances of this case, ladies and gentlemen, the Crown would submit to you, in relation to both accused, they are both liable for the crime of murder.”

63. As is apparent, the Crown’s case was that the joint criminal enterprise was one to assault, beat and ill-treat Joseph over a period of some weeks, with the assaults escalating in seriousness and severity. As the Crown put it in closing, the assaults got worse and worse. AW knew that LN sometimes was depressed and had thoughts of killing Joseph, but he did not stop her. The Crown contended that AW was a party to, or participated in, that joint criminal enterprise irrespective of whether he was present during any particular incident of assault by LN upon Joseph.

Ground 1

64. The gravamen of ground 1 is that the trial judge erred by directing the jury that they could have regard to evidence that was not admissible against AW in deciding, for the purpose of AW’s trial, whether or not LN had murdered Joseph. AW submits that this caused a miscarriage of justice. Consistent with the Crown’s concession described at [5] above, I agree that the error which forms the basis of ground 1 is made out.

65. The directions which the trial judge gave the jury included, relevantly:

“9 Before you can find [AW] guilty of murder, the Crown must prove the following matters beyond reasonable doubt:

(a) there was in existence a joint criminal enterprise (an agreement) between [LN] and [AW] which had as its object the commission of assaults upon [Joseph] by the parties to the agreement;

(b) [AW] was party to that agreement;

(c) [AW] participated in the joint criminal enterprise;

(d) [LN], as a party to the joint criminal enterprise, inflicted harm to [Joseph]:

(i) by a deliberate act;

(ii) with the intention (at least) to cause grievous bodily harm;

(iii) and that this act caused, or substantially contributed to, the death of [Joseph].

(e) [AW] contemplated the possible intentional infliction of (at least) grievous bodily harm (really serious bodily injury) by [LN] upon [Joseph] during the course of the joint criminal enterprise and that, with that awareness, he continued to participate in the agreed criminal enterprise.”

66. For convenience, this direction, including the further directions referred to below at [88], will be referred to as the “EJCE direction”.

67. Having rejected AW’s submission at trial that this was not appropriate: R v LN; R v AW (No. 11) [2017] NSWSC 1430 at [16]-[24], the trial judge directed the jury that in deciding whether the Crown had proved its case against AW on the elements at 9(a)-(c) and (e) of the EJCE direction, they must only use evidence that was tendered against AW. Erroneously, the jury were thus implicitly invited to have regard to evidence admissible only against LN in deciding whether the Crown had proved its case, against AW, that LN murdered Joseph. This error was of some significance given that there were admissions of LN in evidence in her trial that went, in particular, to the issue of whether she had the intention (at least) to cause grievous bodily harm to Joseph.

Did the error the subject of ground 1 cause a miscarriage of justice?

68. Notwithstanding the trial judge’s erroneous direction to the jury, the Crown contends that AW has not established that any miscarriage of justice occurred. The Crown contends ground 1 should be dismissed. AW contends that there was a clear miscarriage of justice, including because the trial judge’s erroneous direction to the jury would have caused confusion and a risk that the jury had regard to evidence inadmissible against AW in their consideration of paragraph 9(e) of the EJCE direction, on the issue of whether AW had the necessary contemplation or foresight to ground a conviction on the basis of an extended joint criminal enterprise.

69. AW’s contention that the jury would likely have been confused or found it difficult to separate elements 9(d) and (e) of the EJCE direction, and would thus likely have had regard to evidence inadmissible against AW other than on the issue encapsulated by paragraph 9(d), should be rejected. The jury were clearly directed only to have regard to evidence admissible against AW as regards the issues encapsulated by elements 9(a)-(c) and (e). The jury were also directed (in what became MFI 52) as to what evidence was admissible against only one of LN or AW, and on a number of occasions that these were separate trials with separate evidence. There is no reason here not to assume that the jury followed those directions: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], [31]-[38].

70. The issue thus arises whether any miscarriage of justice was caused to AW by reason of the primary judge’s erroneous direction. As explained by Kiefel CJ, Keane and Gleeson JJ in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (“Hofer”) at [41], [47], a miscarriage of justice for the purpose of s 6 of the Criminal Appeal Act includes any departure from a trial according to law to the prejudice of the accused, and this is a different question to the “larger” question raised by the proviso, which is whether the nature and effect of the error which has occurred prevents the appellate court from undertaking its assessment as to whether guilt has been proved to the requisite standard. Different forms of expression have been used to encapsulate the threshold for miscarriage of justice for the purpose of s 6(1) of the Criminal Appeal Act. Kiefel CJ, Keane and Gleeson JJ in Hofer at [47] held that the relevant question is whether there was a “real chance” that the jury may have reached conclusions in reliance upon evidence that was inadmissible against AW. Gageler J in Hofer at [123], using a different form of words, held that the question to be addressed is whether the error here is “of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury”, see also Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74] (Edelman and Steward JJ).

71. Turning to the issue in the present case, paragraph 9(d) of the ECJE direction was directed to the issue of whether LN murdered Joseph. This required that the Crown establish that LN inflicted harm on Joseph, that she did so with at least the intent to cause grievous bodily harm, and that the harm inflicted with that intent was the cause of death. As to the first and third of these matters, given my rejection of the park incident and in light of the admissible evidence discussed above, there was no serious factual dispute at trial. For this reason, the parties’ submissions on the question of miscarriage of justice (and on the proviso, discussed below) focussed upon whether there was a real chance that the inadmissible evidence of what LN said in her police interview affected the jury’s consideration of the issue of LN’s intention.

72. The Crown says that the substance of the admissions by LN (tendency reasoning not adding anything of substance to this evidence) was substantially reflected in other evidence which was admissible against AW, such that no substantial miscarriage of justice arose. The Crown provided an aide memoire, given to the Court after the hearing (with leave), which demonstrates that as regards significant inadmissible evidence from LN on the issue of LN’s intention when she carried out the assault which led to Joseph’s death, there was generally similar evidence admissible against AW. A summary of the evidence relied upon by the Crown in this regard is set out below:

73. There was inadmissible evidence of LN that she had “smacked Joey quite a lot”, and had smacked Joseph with a wooden spoon on the bottom, across the legs and on the back and foot but there was also admissible evidence as to these matters from AW and FN as set out at [16(2)] and [17(1)] above.

74. There was inadmissible evidence of LN kicking Joseph in the groin, not that hard but not a nudge. There was also the admissible evidence from FN about LN kicking Joseph in the torso at [17(3)] above.

75. There was inadmissible evidence from LN’s police interview that on one occasion she had grabbed Joseph on his shoulders and shook him back and forwards, after which he got dizzy and sat down. There was also admissible evidence from both AW and FN as to this, set out at [16(12)] and [17(6)] above.

76. There was inadmissible evidence from LN that she had had thoughts of killing Joseph and had told AW about this. There was also admissible evidence from AW and FN as to this at [16(13)] and [17(6)] above.

77. There was inadmissible evidence of LN poking Joseph’s forehead and “his head… banging on the wall”. There was also the admissible evidence from AW as to this set out at [16(11)] above.

78. There was inadmissible evidence of LN about Joseph being in a catatonic state, never blinking, from about four days before “the incident”. Evidence from FN and Mr Whitley about this, admissible against AW, is set out at [26] above.

79. As is clear, many aspects of the evidence of LN were also reflected in evidence that was properly admitted against AW. Notwithstanding this, as AW submits, there was clear prejudice to AW in the jury being directed that they could have regard to evidence which was inadmissible against AW in determining whether LN assaulted Joseph with the requisite intention for murder. This had the capacity for practical injustice. There was a real chance that this affected the jury’s verdict. The jury may have attached weight, in particular, to LN’s own account of her thoughts of killing Joseph about a week before 3 August 2014, to her descriptions of having periods when she got “really angry” and did not “know what [she was] doing until [it was] too late”, to there being times that “Joey just pushed my buttons too many times” and to LN’s evidence that she “wanted to kill him”. The jury may also have placed particular weight on LN’s evidence that she jammed Joseph’s head in the door two nights before 3 August 2014, and that something happened in her room the night before Joseph died but she could not remember. None of that evidence was admissible against AW.

80. The Crown’s contention that there was no miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act should be rejected.

The proviso

75. The Crown submitted that if, as I have found, a miscarriage of justice was occasioned by reason of the matters relied upon by AW in ground 1, then the proviso in s 6(1) of the Criminal Appeal Act could be applied and this Court should find that no substantial miscarriage of justice, within the meaning of s 6(1), has actually occurred. AW did not contend that the proviso could not be applied but submitted that this Court would not conclude that there was no substantial miscarriage of justice in the circumstances of this case.

76. In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 (“Weiss”) at [42], the High Court said of the proviso:

“It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.”

77. The proviso cannot be engaged unless the appellate court is “persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”: Weiss at [44]. It is clear from High Court authority that this “is not an exercise in speculation or prediction” as to what a putative jury may do, and that the Court’s satisfaction of proof of guilt beyond reasonable doubt is “a necessary, but not a sufficient, condition of the application of the proviso”: see, eg Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 at [29], Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [112]-[113] and Hofer at [54].

78. I have reviewed the whole of the evidence tendered at trial. Having done so, I am satisfied beyond reasonable doubt that AW was guilty of murdering Joseph and that there was no substantial miscarriage of justice. I am also satisfied that this is an appropriate case in which to apply to proviso. This is for the following reasons.

79. First, the Crown’s case that there was a joint criminal enterprise to assault Joseph, and that AW was a party to that joint criminal enterprise, was overwhelming. Repeated assaults were perpetrated by each of AW and LN in the presence, or to the knowledge, of the other. Steps were taken by AW to conceal this in the presence, and to the knowledge, of LN, and both sought information from FN as to how to conceal bruising. Both were aware of and present during the horrific placing of Joseph, naked, in an esky of iced water. AW took no steps to notify anyone of the assaults and injuries to Joseph, and he was responsible for many of them.

80. The joint criminal endeavour continued after the point when AW was aware that (as part of their joint enterprise) Joseph had been violently shaken by LN, and after the point when AW must have been aware that there was something amiss with Joseph’s eyesight and that his condition was deteriorating: see for example the evidence at [26] and [32] above. The joint criminal enterprise thus continued notwithstanding that Joseph, aged only three, was sight impaired and, on the evidence of those who saw him, obviously unwell. AW was aware that LN violently shook Joseph at some time in the week before 3 August 2014 and must have been aware that Joseph’s eye problems came from some assault perpetrated either by himself or by LN.

81. Second, in these circumstances I am satisfied beyond any shadow of a doubt that AW foresaw or contemplated the possible intentional infliction of at least grievous bodily harm by LN on Joseph in the course of this joint criminal enterprise and, with that awareness, that he continued to participate in it. Violently shaking a three year old child in Joseph’s condition by the last week of his life (as was described by AW and FN), or pushing his head hard against a door or wall (both of which AW knew had occurred), could clearly have occasioned at least grievous bodily harm, as was apparent from the medical evidence. It must also have been clear to AW that such assaults were ongoing.

82. The evidence that LN had said that sometimes she wished she had killed Joseph is further evidence supporting the conclusion that AW contemplated or foresaw that LN may murder Joseph. I would reject as wholly improbable AW’s evidence that, when LN told him that she had thoughts of killing Joseph, he did not take this seriously. Nor, contrary to the submission of Senior Counsel for AW, is AW asking LN “[d]id you do it” inconsistent with him foreseeing that she could assault Joseph with the requisite intention for murder. It is simply asking whether she had assaulted him, causing his death.

83. Third, as to AW’s continuing participation in the joint criminal enterprise, there is no hint in the evidence that the assaults of Joseph by LN and AW diminished until the afternoon of 2 August 2014. The medical evidence, in particular of bruising and abrasions, also establishes the overwhelming likelihood that Joseph continued to be assaulted in the period leading up to his fatal assault.

84. Fourth, from the evidence admissible only against AW, I am satisfied beyond reasonable doubt that LN assaulted Joseph causing his death, and that when she did so she intended to cause at least grievous bodily harm. That conclusion flows from the fact that LN violently shook a 3 year old child in Joseph’s condition. The evidence of FN that LN said that she sometimes wished she had killed Joseph and that LN was going to “pummel” Joseph’s head with a baseball bat reinforces this conclusion.

AW’s submissions relying upon the inability of the Crown to identify the fatal assault

85. Senior Counsel for AW submitted that AW could not have been part of an extended joint criminal enterprise to murder Joseph in circumstances where the Crown could not identify the final assault that killed Joseph. He contended that there was no act that AW could foresee that could satisfy the requirement that he foresee or contemplate the crime which actually occurred, here murder, in the course of the joint criminal enterprise: see, eg Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 at [112]; Clayton v The Queen [2006] HCA 58; (2006) 81 ALJR 439 at [17]; R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [31]; Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434 at [4].

86. That contention should be rejected. As is clear from the authorities referenced above, for an accused to be guilty of a crime by virtue of an extended joint criminal enterprise, he or she need not foresee an identified criminal act. Rather, he or she must foresee a criminal act of the nature and character of the criminal act which occurred. Here, it was sufficient for AW to be guilty of murder that he foresaw that LN would commit an assault, causing death, with the requisite intention. It mattered not that the Crown could not identify the nature or timing of the fatal assault of Joseph by LN.

Conclusion on ground 1

87. In the unusual circumstances of this case, I am amply satisfied that there is no reasonable doubt that the elements of murder, as alleged in the Crown case against AW, were satisfied. There was no substantial miscarriage of justice and the proviso in s 6(1) of the Criminal Appeal Act should be applied.

Ground 2

88. Before turning to AW’s contentions in support of ground 2, it is convenient to set out further details of the trial judge’s EJCE direction to the jury. Paragraph 9 of the EJCE direction is at [65] above. The trial judge also directed the jury:

“17. Because things do not always turn out precisely as planned, the law makes each participant in the joint criminal enterprise criminally responsible, not only for the acts done as part of that enterprise, but also for any additional acts that the participant foresaw as possibly being committed during the carrying out of the joint criminal enterprise.

18. It may be that in carrying out the joint criminal enterprise, one of the participants commits an additional offence that was not the crime that they had agreed to commit, but was one that at least one or some of the other participants foresaw might be committed. In such a case, not only would each of those participants be guilty of the offence that they agreed to commit, but those participants who foresaw the possibility of the commission of the additional offence would also be guilty of the additional offence.

19. The doctrine of extended joint criminal enterprise holds that a person is guilty of murder where he or she is a party to an agreement to commit a crime and foresees that death or grievous bodily harm (really serious bodily injury) might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise.”

89. The essence of AW’s contention in ground 2 is that events which are foreseeable to the participants in a joint criminal enterprise fall within the joint criminal enterprise (and not an extended joint criminal enterprise) unless the relevant participant positively tells, or by inference communicates to, the other participant(s) that “that should not occur”. Thus, he submits, given that the Crown’s case against AW was that it was foreseeable that LN would assault Joseph with the requisite intent for murder, and the Crown did not contend that AW ever told LN not to do this, the case should have been left to the jury as one of joint criminal enterprise and not extended joint criminal enterprise. AW contends that the trial judge erred in directing the jury that the doctrine of extended joint criminal enterprise was engaged in this case. The case should, he submits, have been put to the jury as one simply of joint criminal enterprise.

90. AW seeks to support this contention by reference to the judgment of Kiefel CJ in Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5 (“Mitchell”) at [13]-[17], [50], [54]-[61]. These passages, however, provide no support for AW’s contention. The High Court in Mitchell went no further than to confirm, as is made explicit at [15], that, as set out in Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 at [4]:

“The principle of extended joint criminal enterprise liability arises where a party to a joint criminal enterprise foresees, but does not agree to, the commission of an incidental crime in the course of carrying out the agreement.” (Footnote omitted)

91. In that passage, and at [16], Kiefel CJ is simply indicating that it is the absence of agreement to the particular conduct that takes it outside of a joint criminal enterprise. In any event, as Senior Counsel for AW candidly accepted, no prejudice was caused to AW arising out of the error he alleges in ground 2. AW did not, in this regard, contend that the trial judge had erred in the direction his Honour gave to the jury as to the essential elements which must be established to find AW guilty of murder. That is a further reason why ground 2 must be rejected.

Ground 3

92. By ground 3, AW contends that it was open for the jury to find that AW could have foreseen an unlawful and dangerous act that might have caused Joseph serious injury, but not with the intention of causing serious bodily harm or to kill. Thus, he submits, the conviction was unreasonable and cannot be supported having regard to the evidence.

93. In the light of the analysis of evidence at [13] to [57] above, this ground should be rejected. The evidence before the jury amply supported a conclusion, beyond reasonable doubt, that AW foresaw that LN could have assaulted Joseph with the requisite intent for murder.

Conclusion

94. It follows that notwithstanding the trial judge’s error which I have found, the proviso in s 6(1) of the Criminal Appeal Act should be applied. AW’s appeal should be dismissed.

95. The orders I propose are:

96. Leave to appeal on grounds 1 and 3 granted but leave to appeal on ground 2 is refused.

97. Appeal dismissed.

98. FAGAN J: I agree with Stern JA. Application of the proviso with respect to ground 1 requires that the Court must determine whether, in its view, the case against the applicant was proved beyond reasonable doubt. Ground 3 requires the Court to consider whether it was open to the jury to find the charge of murder proved to the criminal standard, or whether the Court perceives a reasonable doubt about the matter that the jury, also, should have perceived. Those assessments being essential to disposition of grounds 1 and 2, I should state my own reasons fully.

Ground 1 – misdirection on evidence admissible only against LN

97. With respect to ground 1, the Crown concedes that the learned trial judge’s directions were erroneous because they implicitly allowed the jury to have regard to evidence admissible only against LN when deciding whether it had been proved against the applicant that LN murdered the deceased; that is, caused his death by a deliberate act carried out with intent to cause grievous bodily harm. In the trial judge’s written directions concerning the applicant, the allegation that LN murdered Joseph was element 9(d). It was submitted orally on the hearing of the appeal that once the jury had found that element proved, erroneously taking into account evidence that was only admissible against LN, the following consequence would ensue:

[They] would have found [it] very difficult indeed to separate out a finding in relation to the applicant in regards to his state of mind.

98. The reference to state of mind is to element 9(e): that the applicant foresaw the possibility that LN would intentionally inflict grievous bodily harm in the course of their joint criminal enterprise to assault the deceased. I do not accept the applicant’s argument. The factual question whether LN murdered the deceased is clearly and logically distinct from the question whether the applicant foresaw that as a possible incident of participating in the joint criminal enterprise of persistently assaulting Joseph. There is no basis for imputing a risk that the jury would allow their decision on one element to dictate their satisfaction with respect to a second and independent element. In any event, the argument is beside the point of ground 1. The ground is concerned with irregularity in the direction to the jury regarding evidence they could consider, relevant to element 9(d). Ground 1 raises no issue about whether the jury may have reasoned, improperly, from satisfaction on element 9(d) to satisfaction on any other issue. There is nothing in the trial record to suggest a risk that the jury may have misused their finding on element 9(d) to support their reasoning about distinct other elements.

99. Consideration of the proviso in relation to the conceded error is focused upon whether a substantial miscarriage of justice actually occurred as a result of the jury not being instructed to exclude evidence only admissible against LN when deciding, in the case against the applicant, whether the Crown had proved that LN murdered Joseph. There were three parts to element 9(d), namely, that LN inflicted harm on Joseph:

(i) by a deliberate act;

(ii) with the intention (at least) to cause grievous bodily harm; and

(iii) that this act caused, or substantially contributed to, the death of [Joseph].

100. I will first consider the proviso in relation to parts (i) and (iii). Those matters were proved by an overwhelming body of evidence admissible against the applicant, independent of and unaffected by any evidence that was admissible only against LN. First, the medical evidence concerning cause of death amply proved that the deceased sustained primary intracranial injury as a result of deliberately inflicted force, either by shaking or impact.

Medical evidence of cause of death

101. Dr Donald, a paediatric forensic physician, gave a clear account of the causative sequence from a medical point of view, as follows:

Well, he had a cardiac arrest. That was present when […] the CareFlight arrived [on 3 August 2014] and the reason for that was what I consider to be mainly secondary changes within his brain, which were there because of what I’ve called the “primary head injury” which includes the intracranial bleeding, in other words, bleeding inside the head; the evidence of brain substance injury, bruising to one or two parts of the brain which indicate significant impact to that part of the brain; and once a brain gets disturbed seriously like that, the secondary changes which are primarily related to swelling of the brain cause dysfunction in the part of the brain that controls vital functions and vital functions are, primarily, breathing and heart rate. So, with enough pressure inside the brain, the areas that control breathing and heart rate will be damaged and breathing and heart will stop.

102. The intracranial bleeding was fully described by Dr Brouwer, a forensic pathologist who conducted the post-mortem examination of the deceased’s entire body, and by Dr Rodriguez, a neuropathologist whose post-mortem observations were limited to the deceased’s brain, eyes and parts of his spine. Dr Brouwer identified bilateral acute subdural and subarachnoid haemorrhage over the frontal, temporal and parietal regions of both cerebral hemispheres. This fresh, or acute, haemorrhage was approximately symmetrical, right and left, and about 4-5 mm thick. There were no fractures to the skull. All medical experts considered that the acute cerebral haemorrhage was caused by acceleration/deceleration trauma.

103. Drs Brouwer and Rodriguez explained that intracranial movement of the brain caused by acceleration/deceleration had torn the parasagittal veins between the dura and the arachnoid membrane at the top of the cranial cavity allowing blood to disperse between the two membranes. Dr Rodriguez said this could be dated back approximately to several days before the child’s death on 6 August 2014. There was no evidence of healing, which would be expected if the acute cerebral haemorrhage had occurred weeks before death. Dr Donald thought the cerebral haemorrhage had occurred on about 2 or 3 August 2014.

104. In the passage quoted at [101] above, Dr Donald’s reference to “brain substance injury” is to a bruise, or contusion, that Dr Rodriguez found on the left side of the brain associated with the recent bilateral subdural haemorrhage. All medical experts thought the contusion was consistent with the brain having moved inside the cranium in such a way as to press against an area of roughness or a bony prominence on the inside of the brain case. Severe haemorrhaging within both eyes was also found on autopsy, at multiple layers in all four quadrants of each retina and in the macula of both eyes, accompanied by bilateral detachment of each retina. Dr Rodriguez described the intraocular haemorrhaging as “very extensive”, consistent with very significant acceleration/deceleration forces. Dr Donald said that this haemorrhaging was “extreme”.

105. The medical experts recognised two possible mechanisms by which acceleration/deceleration forces could have been imparted to cause the cerebral and intraocular haemorrhages: first, vigorous shaking of the child causing his head to move rapidly back and forth and, alternatively, impact of the head against a fixed, hard surface.

106. Dr Marks, a forensic paediatrician who examined Joseph when he was admitted to Westmead Hospital on 3 August 2014, said that the constellation of intra-cranial injuries was consistent with severe repetitive acceleration/ deceleration, as would be caused by vigorous shaking. She accepted that where brain injuries such as those found in the post mortem examination of Joseph are attributed to shaking, that is usually in relation to infants up to 6 months, whereas he was three years old. The concentration of incidence of shaking injuries in subjects less than 6 months old is due to the head of a child up to that age being large in proportion to the infant body and the neck muscles being not sufficiently developed to support the head. However, Dr Marks said that even adults could sustain such brain injuries if shaken with sufficient force.

107. Dr Brouwer, also, did not rule out that the intracranial injuries to Joseph may have been caused by shaking rather than blunt force impact. She identified damage to the paraspinal muscles in the vicinity of Joseph’s cervical vertebrae, which would have weakened the support for his head relative to that which would be provided by healthy neck muscles in a child of his age. The neck muscle damage would have rendered him vulnerable to acceleration/ deceleration injury from severe shaking. Joseph’s paraspinal muscles had suffered necrosis. Drs Brouwer and Rodriguez thought hyperflexion of the neck was the likely cause. The evidence of FN showed that the deceased’s neck was likely subjected to forcible hyperflexion when he was placed, naked, in an Esky containing a bag of ice and the lid was pressed closed with the applicant sitting on top of it. FN said that occurred between one and two weeks before Joseph collapsed on 3 August 2014. The date of the ice bath mistreatment approximately coincided with Dr Rodriguez’ opinion that the neck muscles had been damaged a week or a few days before 3 August. Dr Rodriguez also found more recent damage to nerve roots in the same segment of the cervical spine.

108. Dr Donald thought it more likely that acceleration/deceleration would have occurred as a result of the deceased having been thrown against something, for example if he was thrown down into a cot, or against a wall, or if he had in some other way suffered a blunt force impact to his head. Dr Donald’s preference for attributing the brain injuries to external impact was, in his view, supported by the numerous locations of external bruising consistent with blunt trauma involving significant force.

109. Dr Duflou, who was called by LN, said that given Joseph’s age and his weight, which was estimated at between 14 and 20 kg, probably around 17 kg, it would be extremely difficult to achieve sufficiently forceful shaking to inflict the brain injuries that were found on autopsy. Dr Duflou also said that the post-mortem examination did not reveal lower spinal injury or fractures to the backs of the ribs, which are common collateral injuries that result from severe shaking. He gave these answers:

A. […] The brain haemorrhage is almost certainly, in this case, the result of a blow or blows being struck to the head.

He said it was reasonably possible that it could have been one blow or more than one blow.

110. The jury had before them video recordings of LN as she moved around the park opposite her home in Oberon, in company with police. She is a very large, heavily built Pacific Islander woman. It was open to the jury to conclude that she would be quite capable of shaking a small three year old very violently indeed. Responding to cross examination about whether brain injury could be inflicted by shaking a three year old boy, Dr Brouwer’s answer included the following:

These injuries are not typically [described in] children of this age. We found the injuries though, they are there, they are indicative of some sort of acceleration rotation injury that we’re trying to explain by saying it’s from shaking […] you asked me about how much force is required […] you can’t generalise in Joey’s situation. If we consider that a child that suffered physical and psychological abuse over a period of time, a child that has suffered to that extent cannot be considered as a normal three year old. So getting back to your question as to how much force is required, as I said, I don’t know. I’m thinking that it would be, in a child that has suffered that sort of abuse, would not give the same type of resistance than [sic] a child that’s normally well developed.

The sole defence hypothesis of causation of the primary brain injuries

111. Defence counsel put to the experts only one scenario of an impact injury to the deceased’s head that, if it occurred and if it was a reasonably possible cause of the deceased’s primary brain injuries, would have been consistent with innocence. That was a scenario propounded by LN in her police interview late on the afternoon of 3 August 2014. LN said that shortly after midday that day she and the applicant had taken the deceased and their 18-month-old daughter to a park across the street from the house in which they all lived. She said the deceased was running away from her in the park. At the same time the applicant’s two dogs ran in his direction. A rope between the two dogs was tied at each end to their respective collars or harnesses.

112. LN said that one dog ran on either side of the deceased and the rope came taught and tripped him from behind, at about the back of his knees, causing him to fall backwards. The back of the deceased’s head struck the grassed surface of the park. LN said that she ran to him and that he stood up. During a “walk-through” with police on 13 August 2014 LN said that the deceased only sat up at this point. She thought he was winded but when she picked him up he “went limp”. Looking at his face she thought “something went wrong”. She ran back across the street to the house, carrying him.

113. The applicant gave a very similar account in his separate police interview, also conducted on the afternoon of 3 August 2014. In a video-recorded walk-through on 13 August 2014 he confirmed and elaborated the dog/tripping incident and identified the rope by which the dogs were said to have been tethered to each other. It was approximately 40 m long.

114. During the walk-through on 13 August 2014 LN said that when she arrived back at the front entry to the house after the deceased’s fall in the park, she was carrying the deceased with her right arm across the middle of his back (thoracic region). She demonstrated that she came up the three steps to a level area of about 1.5 m x 1.5 m immediately outside the front door, then tripped forwards. This resulted in the deceased landing on his back, with his head approximately on or slightly inside the threshold. LN did not describe that he fell heavily or without restraint from herself. She said the back of his head “might have” hit the threshold.

Medical opinion against the defence hypothesis

115. Dr Rodriguez considered it “very unlikely” that the acute subdural and subarachnoid haemorrhaging, the contusion to the left side of the deceased’s brain and the retinal haemorrhaging could have been caused by the deceased being tripped in the park and the back of his head striking the grassed surface, as described by the applicant and by LN in their records of interview and in their intercepted phone conversations.

116. Dr Brouwer said that there was an absence of contusions to the front of the brain that would be expected from a fall in which the back of the head struck the ground with sufficient force to cause the subdural haemorrhage and the severe retinal haemorrhages that were found on autopsy. Accompanying damage to the front of the brain, in the case of a backward fall as propounded in the defence hypothesis, was referred to by Dr Brouwer as “contrecoup” brain injury. The doctor said this:

[The] question that I ask myself then is, if that is from the fall on the back of the head, there’s this one tiny little contusion. Why don’t we see all these other contusions that I usually see in cases of falling on the back of the head? Why don’t I have all these other contrecoup contusions? Again, as I said, that’s the way that I have to reason when I interpret the injuries, and that’s why the scenario of falling on the back of the head as a single incident causing all these injuries doesn’t explain it.

117. Dr Marks also said that the injuries Joseph had sustained were not explained by the purported history that he had been tripped over in the park by a rope attached to each of two running dogs.

118. Dr Donald said that insults to the brain such as were found on autopsy in this case could be caused by a fall in the park, as described by LN and the applicant, followed by the deceased’s head impacting the threshold, if LN tripped at that point and fell with Joseph in her arms. However, Dr Donald said that such events would not have caused immediate cardiac arrest or immobility, referring to the assertion of LN and the applicant that, after Joseph allegedly fell to the ground, he did not move again apart from briefly sitting up, or possibly standing. Dr Donald said that if the primary brain injuries were sustained in a backwards fall in the park, they would thereafter have caused only gradual disruption to Joseph’s vital functions, impeding blood supply to the brain and thereby causing incremental swelling, with cardiac arrest ensuing after a significant interval during which Joseph would have exhibited unresponsiveness, drowsiness and altered consciousness.

119. On that subject, Dr Donald’s evidence was as follows:

A So, his problem which ultimately led to his death, the brain swelling, takes a significant amount of time to develop.

[…]

A […] it could take that length of time [24 hours] for him to get into the condition he was in when the CareFlight arrived, which was in cardiac arrest.

Q If he was in a deteriorating situation for some hours, would he have an appetite for food?

A No, no, he’d be - his conscious state would be quite altered. The level of responsiveness would depend on where the brain swelling was up to. So, for some time he might have stirred, he might have responded to pain, but he wouldn’t be doing much else. I mean, if you tried to feed him, he would – it would be a risky business because he’d be likely to choke. It certainly wouldn’t be possible to get him to cooperate being fed because his conscious state wouldn’t allow that, and if you had a reliable historian, you know, they’d say to you that he looked vacant, he wasn’t recognising me or anything I said to him, didn’t produce a response, that kind of history. That’s what you’d expect to see.

120. Dr Duflou expressed the following opinions about the reasonable possibility of a fall in the park having caused Joseph’s primary brain injuries and his cardiac arrest soon after:

A fall over backwards especially, and especially involving an acceleration concurrently, making it a more complex fall, can certainly result in severe brain damage, probably as a result of the combination of the rotational acceleration and then the impact of the head against the surface. You could also, quite reasonably, I believe, get the [cervical spinal tissue] injury as a result of a sudden movement backwards as the head probably impacts the ground that there is continued momentum of the head.

[…]

So my view is all of that can readily be explained on the basis of a single event, as opposed to a repetitive movement which Dr Marks suggests.

[…]

[What] the various articles show is that young children uncommonly - and I have to emphasise that it’s uncommon - it is not the usual event, but uncommonly in well-documented falls can sustain significant brain damage; they can certainly sustain a range of injuries, but they can absolutely sustain significant brain damage and that brain damage can be of such severity that you can die from it.

121. Dr Duflou’s opinion that a single backwards fall in the park, as described by LN and the applicant, could have caused all the primary brain injuries found on autopsy and could have resulted in the rapid onset of unconsciousness, within minutes, as described by LN and the applicant, was an outlier relative to all other expert opinions in the trial. It was open to the jury, upon an evaluation of the comparative weight of the medical opinions, to exclude the alleged fall in the park as a reasonably possible cause of the deceased’s primary brain injuries. None of LN’s admissions in her police interviews, which were admissible only against her, were logically capable of influencing the jury to accept the predominant medical views. The erroneous directions did not cause any miscarriage of justice at the point of the jury deciding, on the medical evidence, that the injuries were not caused by the only innocent accident that the evidence suggested.

Eye witness contradiction of the defence hypothesis

122. Beyond the extensive medical evidence, the following further material admissible against the applicant was capable of satisfying the jury beyond reasonable doubt that the fall in the park did not occur:

123. Two witnesses SM and BB, aged respectively 17 years and 15 years at the date of Joseph’s collapse, said that they saw two adults, only one child and two dogs all together in the park. In cross-examination neither witness was shaken as to having seen only one child and BB was emphatic on the point. A photograph taken by LN at 12:37 pm shows that the 18-month-old daughter of LN and the applicant was present. That must have been the child seen by SM and BB. Therefore, on their evidence, Joseph was not in the park.

124. SM saw a child tripped by an orange rope that was tied between two dogs. He then saw the child get up and run around. He did not see the child that was tripped immobile on the ground. He did not see either of the adults pick the child up from the fallen position and carry her/him away.

125. BB did not see the child trip and fall but saw her/him stand up. SM told BB at the time that the child had been tripped by the dogs. BB saw that the child had long blonde hair. (This corresponds with the 18-month-old daughter; Joseph’s head was close shaved). When the group left the park BB saw one of the adults carry the child back across the street towards their house. The two adults were close to each other when they crossed.

Other evidence admissible against the applicant to prove death caused by LN

123. Other lay and circumstantial evidence admissible against the applicant was capable of supporting a finding beyond reasonable doubt that the deceased’s primary brain injuries were caused by an event of severe shaking of the deceased’s head, or throwing or pushing him in such a way that his head struck a solid surface, in either case perpetrated by LN:

124. FN said that about 4 to 5 weeks after Joseph came to live with LN, the applicant and himself at Oberon, that is, in the last or second last week of July 2014, he witnessed LN shake Joseph by the shoulders for a couple of minutes “aggressively”, with Joseph’s head “flopping back and forth”. She then threw him to the floor “and he just laid there … crying”.

125. FN gave evidence of other assaults by LN that, while not meeting the medical experts’ criteria of severity sufficient to cause the observed brain injuries, were capable of satisfying the jury that LN had a tendency to act violently towards Joseph and that throughout Joseph’s time at Oberon she carried out an ongoing course of brutality. Examples include that FN said he observed LN strike Joseph with a spoon aggressively all over his body on multiple occasions and on one occasion she kicked him in the torso while he was lying on the ground, following which he did not get up.

126. FN said that LN expressed violent intentions towards Joseph on more than one occasion. As she carried out the aggressive shaking described above she shouted at him, “I wish I never had you”. Another time she said, with reference to Joseph, “I’m sick of this shit and I’ll knock his head off with a baseball bat”.

127. LN also evinced violent hostility to Joseph by acquiescing in assaults carried out by the applicant in her presence, as observed and related by FN. Those events included the applicant inserting a ball in Joseph’s mouth, taping it in position, and taping Joseph’s eyes shut and his hands behind his back. That occurred within one or two weeks before 3 August 2014. Another instance, again in LN’s presence and with her not raising any protest, was when the applicant placed Joseph in an Esky with a bag of ice and forced the lid shut, holding him inside the container screaming for 5-10 minutes. Another occasion was when LN and the applicant directed Joseph to stand and face the wall. When he looked away, in LN’s presence the applicant “got up, got his head, smacked it into the wall and told him to, ‘Look there’”.

128. Making allowance for FN’s express uncertainty about dates and time intervals, it was open to the jury to conclude that the shaking event referred to at item (1) above was sufficiently proximate to 3 August 2014 to fit within the timeframe nominated by the medical experts for infliction of the primary brain injuries – especially having regard to Dr Donald’s evidence about delayed onset of critical symptoms. Taking into account the evidence of tendency, it was alternatively open to the jury to infer that LN carried out another enraged shaking attack on Joseph on the night of 2 August 2014.

That LN murdered Joseph followed by logic and by elimination

125. It was an inescapable conclusion from the totality of evidence admissible against the applicant that Joseph’s primary brain injuries resulted from a deliberately inflicted acceleration/deceleration of his head by shaking or impact. That conclusion followed inexorably from the medical evidence and from exclusion of the trip-in-the-park hypothesis, without any contribution from admissions by LN that were only available in the case against her. Given that Joseph was exclusively in the care of LN and the applicant for six weeks before his death and that he had been in sound health when he arrived at Oberon, the deliberate fatal shaking or impact must have been inflicted by either LN or the applicant. Again, the case to that effect was overwhelming and was independent of any admission by LN that the jury could only take into consideration against her. As between the applicant and LN, they being the only possible perpetrators of Joseph’s murder, the applicant himself invited the jury to exclude himself on the basis of his denials in several police interviews.

Evidence erroneously left for jury’s consideration on elements 9(d)(i) and (iii)

126. As summarised so far, the medical and lay evidence admissible against the applicant was well capable of satisfying the jury that LN inflicted harm upon Joseph by a deliberate act (element 9(d)(i)) and that the infliction of the harm by that act was a substantial cause of his death (element 9(d)(iii)). The jury’s verdict against the applicant shows that they were satisfied beyond reasonable doubt of those two facts. To this point, the question whether the proviso to s 6(1) of the Criminal Appeal Act may be applied with respect to the conceded error in appeal ground 1 depends upon whether any of the evidence that the jury should have been directed to consider only in the case against LN could have influenced them materially to reach satisfaction on these elements 9(d)(i) and (iii).

127. The applicant’s written submissions on ground 1 list admissions made by LN in her police interviews that were admissible only against LN but which the jury, acting on the misdirection, might have taken into account when determining whether it was proved against the applicant that LN murdered Joseph. The written submissions did not explain how that material, which should have been disregarded by the jury, added anything of substance to other evidence that was properly received against the applicant and was capable of proving that she murdered Joseph.

128. During oral argument the applicant supplied the Court with a schedule of references to passages in the evidence of FN, all of which were admissible against both accused, and two schedules of the admissions made in the respective police interviews of LN and the applicant, which were of course admissible only against the respective accused who had made each admission. After the appeal hearing the Crown provided a comparative table showing admissions made to police by LN and corresponding evidence, to similar effect, given by FN and/or included in the applicant’s admissions to police.

129. A great many of the admissions made by LN concerned assaults by her upon Joseph that self-evidently could not have caused the primary head injuries that led to his death. The Crown relied upon those lesser assaults and upon LN’s admissions that she had violent thoughts with respect to the deceased to prove that between 14 June and 3 August 2014 she had a tendency to inflict violence on Joseph and to be preoccupied with a desire to kill him. The jury were directed regarding tendency reasoning in a manner that has attracted no complaint on appeal.

130. All the evidence that the Crown relied upon as exhibiting the alleged tendencies was also received against LN for the more direct purpose of proving that she acted in a joint criminal enterprise with the applicant. Her admissions of ongoing violence towards Joseph accompanied by violent thoughts and statements were complemented by evidence from FN of repeated violence by the applicant, perpetrated when both accused were present. This was the basis upon which the jury were invited to infer that the two accused were acting in concert pursuant to an agreement or understanding.

131. I accept the Crown’s submission that the acts and states of mind to which LN admitted in her interviews were in all material respects replicated in the evidence of FN and/or in the applicant’s own police interviews. So far as the jury may have thought that her admissions supported the alleged tendency and that the tendency argument carried probative weight, the acts of lesser violence that LN acknowledged, together with her admissions of thoughts of doing harm to Joseph, went no further than what was proved in the case against the applicant by FN and by the applicant’s admissions. There was an exception, namely, that LN admitted to having slammed a wardrobe door on Joseph’s head, jamming it between the door and the frame. FN and the applicant did not say anything of that assault. However, the medical evidence discounted the impact so described as a possible cause of Joseph’s primary brain injuries. Although this was an additional illustration of LN’s tendency to harm the child, there were so many other illustrations in the material that was admissible against the applicant that her acknowledgment of the wardrobe door incident could not realistically have made any difference to the jury’s ultimate determination of whether a deliberate act of LN was the cause of the deceased’s brain injuries.

132. Most materially, so far as parts (i) and (iii) of element 9(d) are concerned, LN admitted during the walk-through on 13 August 2014 that, some four days prior to Joseph’s collapse, she had shaken him back-and-forth heavily, holding him by his shoulders with his feet on the ground. LN gave a demonstration of this for the video recording of the walk-through. The jury, following his Honour’s directions regarding element 9(d), may have had regard to that admission in reaching their decision that a deliberate act of LN had caused death. However, that would have been inconsequential because they had the same evidence in a form admissible against the applicant. As summarised at [123](1) above, FN said he witnessed a shaking incident fitting the description admitted to by LN. FN was not challenged in cross-examination regarding that evidence. Further, that assault and its timing were corroborated by the evidence of a tradesman who visited the Oberon home on 28 July 2014 and observed Joseph staring blankly and fixedly, in a manner consistent with head trauma from shaking having been sustained by that date, five days before Joseph’s collapse.

Part (ii) of element 9(d)

133. To prove that LN intended to inflict grievous bodily harm when she committed whatever assault or assaults caused the injuries to Joseph’s brain, the primary evidence was the nature of the injuries themselves and the medical opinions as to what would have been required to cause them. From those sources there was a strong circumstantial inference that the person who imparted the necessary force must have intended to cause at least grievous bodily harm to the three-year-old, Joseph. His frailty is depicted in contemporaneous photographs tendered to the jury. Secondly, there was FN’s evidence of LN’s statements in his presence that she wished she had never had the child and that she desired and intended to kill him. Thirdly, the applicant himself admitted to police that LN had told him she had such thoughts, prior to Joseph’s death.

No substantial miscarriage of justice

134. As held by the High Court in Weiss v The Queen (2005) 224 CLR 300, it is a necessary but not sufficient prerequisite for application of the proviso to s 6(1) of the Criminal Appeal Act that the appellate court should itself be satisfied beyond reasonable doubt of the guilt of the accused. On the basis of the evidence admissible against the applicant, to which I have referred, I am satisfied beyond reasonable doubt that LN murdered the deceased and that element 9(d) in the case against the applicant was thus established. No issue has been raised in the appeal as to perceived deficiency of proof with respect to any other element of the charge against him. I have no reasonable doubt concerning the applicant’s guilt on the charge of murder.

135. Although ground 1 might be decided in favour of the applicant, upon applying the proviso I would not uphold the appeal on this ground because I am satisfied that no substantial miscarriage of justice actually occurred. The jury may have understood the trial judge’s directions as permitting them to have regard to evidence that was admissible against LN only, for the purpose of finding the facts relevant to element 9(d). Such evidence was not capable of adding any significant weight to the clear proof, from material admissible against the applicant, that LN had murdered her son.

Ground 2 – no misdirection on extended joint criminal enterprise

136. I would dismiss ground 2 for the reasons assigned by Stern JA and I do not wish to add anything to what her Honour has written in that regard.

Ground 3 – unreasonable verdict

137. The gravamen of the applicant’s submission on ground 3 is contained in the following paragraph from his written submissions:

It is submitted that in the circumstances of the facts of this case, as summarised above, the evidence was not sufficient to exclude beyond reasonable doubt the reasonable hypothesis that even though the appellant might have contemplated the possibility that LN might assault the victim causing grievous bodily harm, that such an act with the relevant intention was neither agreed nor intended and thereby manslaughter was not excluded as having been the appropriate verdict in all the circumstances [emphasis added, citation omitted].

138. This submission establishes a very limited scope of enquiry for this Court to undertake in order to determine whether the jury’s verdict is “unreasonable, or cannot be supported, having regard to the evidence”. The Crown case was that the applicant contemplated the possibility that, in the course of LN furthering their joint criminal enterprise to assault the deceased, she might on some occasion assault him with intent to cause grievous bodily harm and in doing so might actually cause his death. The applicant’s ground 3 argument is limited to asserting that the evidence was only sufficient to sustain a jury finding that the applicant contemplated causation of death by an unlawful and dangerous act on the part of LN; that is, that she would commit manslaughter, not murder.

139. The narrowness of this ground was confirmed in the following exchange during oral argument:

FAGAN J: […] The jury could infer from a course of conduct by LN, that your client observed, that he, beyond reasonable doubt, foresaw the possibility that, as this course of treating the boy this way continued, […] there was at least the possibility that she’ll go so far as to intend grievous bodily harm and kill him.

DALTON: We submit that’s not a properly available inference on the evidence, which is why I’m making the submission in relation to ground 3 […]. And we submit that on a proper review of the evidence, there is no evidence from which that inference should be properly drawn, that it was going to be an assault of that level, except for what he’s been told by her, if he took her seriously, that she had thoughts of killing him.

FAGAN J: So it just wasn’t open to the jury to make that inference beyond reasonable doubt?

DALTON: When your Honours review the evidence in respect to the proper approach for unsafe, unsatisfactory […] - and I make it clear if I can, your Honours, that our point in relation to “unsatisfactory” is only the distinction between murder and manslaughter. I’m not suggesting this would be a total acquittal situation. There could have been [foresight] in the circumstances--

FAGAN J: Of an unlawful and dangerous act.

DALTON: Exactly, your Honour, but not with the necessary intent [for murder].

140. This confinement of the argument relieves the Court of any need to recite the evidence that was available to support the jury’s finding beyond reasonable doubt on all elements. With respect to the single point identified, I am comfortably satisfied that there was evidence upon which it was open to the jury to infer that the applicant must have foreseen – just as I put to the applicant’s counsel in argument – that there was at least a possibility that LN’s assaults upon Joseph would culminate in a shaking or a beating or other form of violence that would be accompanied by intent to cause grievous bodily harm and would turn out to be lethal. LN’s violence towards Joseph, to the extent witnessed by the applicant, was savage and inhuman. At times it was accompanied by expressions of regret at the very existence of her own child and acknowledgements of a desire to end his life. A finding that the applicant had foresight of the possibility of murder by LN was open.

141. Notably, the applicant argued ground 3 on an implicit assumption that it was open to the jury to find a joint criminal enterprise on the basis of the evidence that each accused ill-treated the child frequently over the six week period from 14 June 2014 until he collapsed on 3 August 2014, on occasions that appeared random, sporadic, spontaneous and, at times, reactive to irritation or frustration with the child, on a background of complete absence of parental affection. The application of joint criminal enterprise analysis to this course of assaults, of widely varying severity and spread over weeks without any allegation of system or an agreed endpoint or terminal objective, was an extension of the deployment of joint enterprise principles relative to the most nearly comparable case of which I am aware: Likiardopoulos v The Queen [2012] HCA 37. There has been no challenge to the sufficiency of the evidence in this respect to support the finding by the jury, which is inherent in their verdict, of a joint criminal enterprise between LN and the applicant.

142. For those reasons I would dismiss ground 3. As none of the grounds warrants setting aside the conviction, leave should be granted to the extent proposed by Stern JA but the appeal should be dismissed.

143. IERACE J: Having reviewed the trial record, I also agree with Stern JA. I add the following observations in respect of ground 1, which concerns the trial judge’s misdirection as to the evidence admissible against AW; in particular, whether the misdirection occasioned a substantial miscarriage of justice and whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied.

Background

144. On Sunday 3 August 2014 (3 August) at 12.53pm, Joseph’s mother, LN, phoned 000 from her home to report that Joseph was not breathing. She said that he had been knocked over by the family dogs while in a park that was adjacent to their home (the park). Joseph was taken to hospital and died three days later. The cause of death, as established by Dr Brouwer, who was the forensic pathologist who conducted the autopsy, was a hypoxic-ischaemic encephalopathy, due to an out-of-hospital cardiac arrest, following a blunt force craniospinal injury (the craniospinal injury).

145. The Crown case against LN was circumstantial in nature. It was that she deliberately did the act or acts that caused or substantially contributed to the craniospinal injury, with the necessary intent for the offence of murder (the fatal assault), although the Crown did not contend any specific act or acts by her that caused that fatal injury. Rather, the Crown led evidence of the infliction of serious injuries on Joseph by LN in the time that he had been in the care of LN and AW (since 14 June 2014). The Crown contended that the fatal assault most likely occurred in their home overnight on 2 and 3 August.

146. The essence of the defence case for LN was that Joseph accidentally suffered head injuries on 3 August, at the park in her and AW’s presence, when he was tripped by a rope tied between the two family dogs, and immediately afterwards when LN fell on their front steps while carrying Joseph back inside their house, which caused him to hit his head on a step. It was LN’s case that although she had deliberately injured Joseph on multiple occasions prior to 3 August, those injuries were unrelated to his death.

147. The Crown case was that Joseph was not in the park at all on 3 August, and therefore LN’s accounting for the fatal injuries was a lie. As LN’s senior counsel conceded in his final address to the jury, referring to the issue of whether Joseph was in the park on 3 August: “If the injury to the head had occurred on [2 August], the day before or overnight, the child wouldn’t have been walking the next day”.

148. The case against AW was that he was a party to a criminal enterprise, jointly with LN, to assault Joseph, and that he was guilty of Joseph’s murder pursuant to the doctrine of extended joint criminal enterprise; during their separate and joint assaults of Joseph in the weeks leading up to the fatal assault, AW contemplated the possibility that LN would go beyond the agreement and knowingly cause at least grievous bodily harm to Joseph. Nevertheless, he continued in the joint criminal enterprise.

149. The defence case for AW, as put to the jury by his counsel in her final address, was that Joseph suffered the fatal injury when tripped by the dogs at the park on 3 August. Counsel for AW submitted to the jury that if they were not persuaded that there was a reasonable possibility that the fatal injury was accidentally caused in the park on 3 August, they would not be persuaded that AW contemplated the possibility of LN intentionally inflicting at least grievous bodily harm on Joseph. AW’s counsel did not challenge the evidence that the Crown relied upon to establish the joint criminal enterprise; indeed, there was ample unchallenged evidence by way of AW’s admissions to police that he and LN repeatedly assaulted Joseph in the weeks leading up to 3 August.

150. In order for AW to be convicted of murder, the jury had to be satisfied that LN committed the fatal assault. As conceded by the Crown, the trial judge misdirected the jury by impliedly directing them to the effect that, in assessing whether that was so, they could take into account the evidence that was otherwise only admissible against LN, most notably, her admissions to police in the course of questioning over 7 police interviews, which were inadmissible hearsay. The Crown submitted that the availability of evidence to a similar effect that was admitted against AW was such that no miscarriage of justice was occasioned by the misdirection or, in the alternative, there was no substantial miscarriage of justice, so that the proviso in s 6(1) of the Criminal Appeal Act should be applied.

The evidence that was admissible against AW

151. The issue in this Court thus devolved to whether there was a miscarriage of justice, or a substantial miscarriage of justice, occasioned by that wrong direction of law. The approach taken by both parties was to note the evidence that was admissible against AW concerning LN’s assaults on Joseph and submit as to whether, and to what extent, the essence of LN’s incriminatory admissions to police was essentially replicated, or not replicated, in that evidence. It was common ground between the parties that one of the sources of admissible evidence against AW was the evidence of FN, who is LN’s adult son and was a co-resident.

152. I gratefully adopt the summary in the judgment of Stern JA of the evidence admissible against AW at [12]–[15] and of AW’s admissions to police at [16]. I would add to that summary two excerpts of recorded conversations between LN and AW, which are probative of the issue of whether LN committed the fatal assault. On 13 August 2014, five minutes after LN participated in a lengthy police interview and walk-through, she whispered to AW: “I did it and I want to die … I don’t want to talk about it no more, I just want to be arrested”. On 15 September 2014, in a recorded phone conversation, in the context of AW having just been arrested, the following exchange occurred between AW and LN:

“AW: I’ve been arrested … I’ve got his murder on me now, so.

…

AW I have a hard question to ask ya.

LN: Ask me anything.

AW: Did you do it?

LN: Yeah, I did it. I did everything, but you know what. No matter how much I tell them or what I tell them, they still don’t believe me. So no matter what, I am still looking at gaol time. You know what, I don’t care.”

153. As to the evidence of FN, while his evidence as to what he saw LN do to Joseph was clearly admissible against AW, his evidence as to what he heard LN say, in the absence of AW, was hearsay and thus inadmissible against AW unless it was admitted for a non-hearsay purpose or it came within an exception to the hearsay rule. This point was not taken at the trial and neither party in this Court made submissions on this issue.

154. However, FN’s evidence of what he heard LN say was potentially admissible pursuant to s 66A of the Evidence Act 1995 (NSW), which provides as follows:

“66A Exception: contemporaneous statements about a person’s health etc

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.”

155. The evidence by FN of words spoken by LN that would appear to come within the terms of s 66A, by reference to Stern JA’s summary at [17], is as follows: at [17(3)], that LN kicked Joseph in the torso and called him a “fucking idiot”; at [17(6)], that while LN was aggressively shaking Joseph she was yelling out “I wish I never had you”; and at [17(7)], that she was “sick of” Joseph and wanted to “pummel his head” or “knock his head off” with a baseball bat.

156. That being so, and in light of the applicant not having contested the issue, I am content to take it into account as evidence admissible against AW and relevant to the fact in issue of whether LN committed the fatal assault.

157. Although some of LN’s admissions to police are also the subject of admissible evidence against AW, there were some significant admissions by LN to police in interviews conducted on 13 August, 4 September, 12 September and 15 September 2014 that contributed to the circumstantial case that she committed the fatal assault, that are not matched by evidence admissible against AW.

158. The 13 August 2014 interview included a walkthrough at the park. After the walkthrough, LN was asked about injuries on Joseph. In response, LN made admissions as to various injuries she inflicted on Joseph, either with no time frame or some time before Joseph suffered the fatal injuries, which are unnecessary to recount. LN made further admissions, specifically concerning the week before 3 August, that are not matched by admissible evidence against AW.

159. A week before 3 August, she had more thoughts of killing Joseph, but did not share those thoughts with AW;

160. LN admitted an injury that she said was accidental, when Joseph slipped from her hold and hit his head, in the area of his right forehead, on the corner of a hard plastic tub. That occurred “four or five days” before 3 August;

161. LN admitted shaking Joseph four days before 3 August, by grabbing him on his shoulders and shaking him backwards and forwards, which caused him to become dizzy;

162. Of particular significance, LN said that during that week she had one of her “periods where sometimes when I get really angry, I don’t know what l’m doing until it’s too late”. She said “Joey pushed my buttons too many times” and she wanted to kill him. She was by herself with Joseph. She recalled him being on the floor and having her chest in his chest. Joseph got up and sat down. She said that all she could remember was that she was seated “after I’d finished”.

163. LN recalled another incident, she thought four days before 3 August, in which Joseph ended up “in a catatonic state”, meaning “he never blinked”. She was alone with Joseph in the lounge room. She said: “I can’t recall what I did to him, but he never blinked”.

164. LN was interviewed by police on 4 September 2014, at her request. She told police that there was an incident that occurred “maybe a week” before 3 August one night when she and Joseph could not sleep, while AW was asleep. Although she had asked for this interview to tell police about the incident, she said she could not recall anything further about it.

165. LN again requested an interview with the police, which occurred on 12 September 2014. She said that in the morning of 3 August, before they went to the park, she noticed injuries on Joseph’s head that were worse than when she had gone to bed the night before.

166. On 15 September 2014, police interviewed LN in a mental health clinic, where she was receiving treatment. She was then taken to Bathurst Police Station and interviewed again, from 6.05pm. In these two interviews, she agreed that she admitted to police that she had a conversation with AW immediately before the mental health clinic interview in which she said that she “did it” and wanted police to charge her with Joseph’s murder (see the excerpted intercepted conversation at [152] above). LN also admitted the following:

167. Two nights before 3 August, LN was with AW and Joseph in their bedroom. AW was asleep. Joseph would not sleep, which made her angry and frustrated. She “jammed” his head in a wardrobe sliding door. She “padded” his head with a T-shirt and singlet and “slammed the door shut on his head. But I don’t know how hard I did it” (the wardrobe incident). She then “punched him in the head”, indicating the top of the head, and put him in bed. He was awake. The next morning, she noticed he had wet his bed. She said the injuries from the wardrobe incident were to Joseph’s temples and that AW did not know of this assault. She did not rule out having jammed his head in the wardrobe door on other occasions.

168. DS Fawkner asked:

“Q277 There was an incident the night before that leaves him in a catatonic state that you can’t remember how that happened?

A. Yeah.

Q278 So [AW], [FN] or yourself could’ve inflicted those injuries?

A More likely me.”

Q279 [FN] indicates that there was a thud and he came out of his room and saw him on the ground. Do you know what happened?

A No.

…

Q288 So what happened the night before?

A I don’t know. Like I said, lack of sleep, just being under a lot of stress, I just - - -

Q289 [FN] and [AW] don’t indicate any force was used against him the night before. You indicated to me once before that there was an incident, there was something that happened the night before in the bedroom?

A That was jamming his head in the wardrobe. I was so pissed off at Joey I wanted to take the baseball bat to his head because I just wanted some sleep.

Q290 … But you’re adamant that happened two nights before?

A Yeah.

Q291 Is it possible that there was a second account where it’s happened?

A I can’t tell you that ‘cause I don’t know if I’ve done it or if I haven’t.

Q292 All right. Do you know how many times you did do it then?

A I know for sure that I’ve done it once.

Q293 O.K. You indicated to me today that you wanted to be charged with, ah, the murder of your son?

A Yes.

Q294 Why?

A Because I hurt my son beyond what any parent should do to their own child.”

162. Later that night, during a walkaround with LN at the residence, LN said that the wardrobe incident occurred two nights before 3 August.

163. Although Dr Brouwer’s evidence was that the injuries likely occasioned by the wardrobe incident did not contribute to the craniospinal injury, this was nevertheless compelling evidence of LN’s responsibility for the fatal assault; in particular, that there was an injury that she inflicted that she cannot recall that left Joseph in a catatonic state. In my view, the jury would have placed considerable weight on these admissions in determining that LN was responsible for the fatal assault in the cases against both accused, consequent to the misdirection.

164. However, the question in terms of whether there was a substantial miscarriage of justice, in the circumstances of this case, is whether the evidence that was admissible against AW also clearly established that LN was responsible for the fatal assault. In my view, it did. In view of LN’s stated desire to kill Joseph, her admission to AW that she had violently shaken him previously, evidence of other serious assaults of Joseph by her, AW’s account to police that he had slept through the night before 3 August, LN’s admissions to AW that she believed that she was responsible for Joseph’s death and, at the time she made those admissions, that she wanted to be charged in relation to his death, the inevitable circumstantial finding of fact beyond reasonable doubt would have been that it was LN who inflicted the fatal assault.

165. As noted, having reviewed the evidence, I am satisfied that although the misdirection occasioned a miscarriage of justice, for the reasons set out in the judgment of Stern JA at [75]–[87], it was not a substantial miscarriage of justice, and the proviso should be applied.

**********