BJR v R

PARTIES: Appellant - BJR Respondent - Regina

COUNSEL: Appellant - S Odgers SC Crown - P Ingram

SOLICITORS: Appellant - S O'Connor (Legal Aid Commission) Crown - S Kavanagh (Solicitor for Public Prosecutions)

IN THE COURT OF CRIMINAL APPEAL 2006/4917

BEAZLEY JA HULME J LATHAM J

16 June 2008 BJR v REGINA Judgment 1 BEAZLEY JA: I have read in draft the judgments of Hulme J and Latham J. I agree with Latham J that the appeal in respect of count 3 should be dismissed for the reasons her Honour gives. I wish to express my own reasons in relation to count 1. 2 I agree, as Latham J points out at 49, that the Crown case is an entirely circumstantial one. It is thus convenient to commence with a consideration of the appeal in respect of count 1 by reference to the principles that govern the finding of "intention" in a circumstantial case. Those principles are to be found in the decisions of the High Court in Knight v R [1992] HCA 56; (1992) 175 CLR 495. 3 In that case, the question was whether Knight had been convicted of attempted murder in circumstances where the rifle he was holding discharged and wounded the victim in the course of a struggle between the two. The gunshot said to constitute the attempt was the second shot fired by the appellant. To be guilty of attempted murder, it was necessary for the prosecution to prove "beyond reasonable doubt that [Knight] fired the shot alleged to constitute the attempt with intent to kill" (emphasis added) (at 501). 4 The only real issue on the appeal was Knight's state of mind at the time the shot was fired. His state of mind could only be determined inferentially from other facts found by the jury. Mason CJ, Dawson and Toohey JJ in their joint judgment stated, at 502, that the reasoning process required was that stated by Dixon CJ in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375: "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation." 5 In a later passage in Martin v Osborne, at 375, Dixon CJ explained that this meant that: "… according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed."

See also Plomp v R [1963] HCA 44; (1963) 110 CLR 234 at 243. 6 In Knight, having referred to the above passages in Martin v Osborne, Mason CJ, Dawson and Toohey JJ, at 503, rejected as "incorrect" the test that had been applied by Young CJ in the Victorian Supreme Court, namely, that Knight: "… could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open."

Rather, as their Honours observed: "… if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence , then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance." (Emphasis added) 7 Their Honours concluded that a reasonable jury could not have been satisfied beyond reasonable doubt that the inference of intent to kill was the only reasonable inference open on the evidence. Of particular significance to their Honours was that the second shot was fired during the course of the same struggle in which the first shot was fired and there was no suggestion that this shot had been fired with intent to kill. There was also no evidence that Knight's finger was on the trigger and as there was no trigger guard on the gun, it could have been fired as a result of the struggle. 8 In Barca v R [1975] HCA 42; (1975) 133 CLR 82 at 104, Gibbs, Stephen and Mason JJ stated: "When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King (1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw'; Plomp v The Queen (1963) 110 CLR 234 at 252; see also Thomas v The Queen (1960) 102 CLR 584 at 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence. ' (Peacock v The King (1911) 13 CLR 619, at 661). These principles are well settled in Australia." (Emphasis added) 9 In Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 at 580, Dawson J observed that intention: "… is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately." 10 Earlier, in Parker v R [1963] HCA 14; (1963) 111 CLR 610 at 648-9, Windeyer J had said: "In every case where intent is in question the question is what did the accused - the man before the court - intend. Of that, the acts he did may well provide the most cogent evidence. In some cases the evidence that the acts provide may be so strong as to compel an inference of what his intent was, no matter what he may say about it afterwards. If the immediate consequence of an act is obvious and inevitable, the intentional doing of the act imports an intention to produce the consequence . Thus to suppose that a sane man who wilfully cuts another man's throat does not intend to do him harm would be absurd. A sane man who intentionally belabours another with a knuckle-duster while he is lying helpless on the ground and then stabs him with a knife, cutting his throat, cannot rationally be said not to have meant to do him grievous bodily harm at the least. Moreover, it might well be thought that such deeds must have been done with a reckless indifference to human life." (Emphasis added) 11 In Cutter v R [1997] HCA 7; (1997) 143 ALR 498, the High Court, although agreeing with the principles stated in the abovementioned authorities, divided in the result on the appeal. The case involved a fatal stabbing of a police officer and the question was whether it had been done with an intent to kill. In their joint judgment, Brennan CJ and Dawson J stated, at 502-503, that although it might have been obvious to a reasonable person looking at the matter objectively that a person who deliberately lunged at another with a knife in an upwards, stabbing motion would result in the "… likelihood of inflicting a fatal wound or the probability of death … the surrounding circumstances must be considered before excluding the possibility that the appellant inflicted the wound without an actual intent to kill". 12 In that case, there had been a struggle and there appeared no doubt that Cutter intended to resist the police. However, their Honours observed (also at 503): "It is one thing to fight and wound and to resist the application of physical force that is resented; it is another to intend to take the life of one of those who is seen as applying the resented force."

Their Honours considered, therefore, that the circumstances did not "… exclude the possibility that [the victim] was stabbed in anger and with aggression but not with an intent to take his life."

The evidence 13 Latham J has helpfully set out the circumstances in which the injuries sustained by CR were detected. Relevantly, the evidence was that on 29 June 2001, a skeletal survey revealed that CR had up to 10 fractures of her ribs and that those fractures had been sustained one to three weeks previously, that is, about 7-22 June 2001. 14 On the previous day, 28 June 2001, CR had been diagnosed as having sustained fractures of the right femur and tibia, fractures of the tibial and fibula shafts of the left leg and a possible fracture of the distal right tibia. The evidence was that the fractures of the tibia and fibula of the left leg had occurred within 48 hours of presentation, that is, sometime between 26 and 28 June, and that the fractures of the ribs had been sustained up to two weeks previously, that is, sometime in the week or so surrounding 14 June 2001. 15 Latham J has referred to the evidence of the medical witnesses in which they described the degree of force necessary to break CR's ribs and legs. For the most part, I will not repeat that material, but I do wish to refer to some of it, as well as some additional evidence given by the material witnesses in relation to the degree of force necessary to break CR's ribs, the broken ribs being the 'harm' which is subject of the charge. 16 As Latham J has pointed out, Dr McDonald, a specialist paediatrician, stated that "an onlooker would be shocked" on observing the application of sufficient force to fracture the ribs of a child of CR's age and physical development. He said that the force necessary would be "well beyond just holding a child … you would almost have to press the front and the back together … an onlooker would be shocked". That evidence was given in chief. 17 During cross-examination, in response to a question whether it was possible to measure force, Dr McDonald said that it was not possible to do so without conducting an experiment on the child of the given age and in fact breaking that child's ribs. Dr McDonald agreed, therefore, that it was not possible to know the amount of force in terms of pounds per square inch that was required to break a child's rib. 18 A number of different situations were then postulated by the appellant's trial counsel. First, Dr McDonald was asked whether the fractures could have occurred with the child being placed on her back on a flat or unbendable surface, and compression applied to the front part of a child's body. Dr McDonald agreed that if strong enough pressure was applied, then that could have caused the fractures. The reverse proposition was put to him, namely that the child was lain face down on such a surface. Dr McDonald agreed that it was possible that the application of force on the child's back could cause the fractures. 19 The next scenario was whether lateral forces may have been applied. The cross-examination was in the following terms: "Q: I want to deal with the situation of lateral forces. With pressure applied from either side of the rib cage, that is from the left and the right, moving in toward the centre be the kind of compression that could bring about those fractures? A: I think that is unlikely without the degree of pressure being extreme, you know, to a spectacular degree ." (Emphasis added)

Dr McDonald said that in that case, the amount of deformity that would be caused would also result in " major internal soft tissue damage ", such as damage to the lungs and heart, and he thought that the child would probably not survive. 20 The next possibility put to Dr McDonald was of force being applied from one side while the child was held against an unmovable object on the other. Without setting out Dr McDonald's evidence in detail, he thought that having regard to the bilateral rib injuries in this case, that such a scenario was unlikely. 21 The appellant's counsel at trial asked Dr McDonald whether he was able to say where the person's hands would have to have been placed on CR to cause the injuries observed in the x-rays. Dr McDonald responded that both hands would be put around the chest in a symmetrical fashion, so that the fingers would be at the back near the spine, the thumb at the front near the breast bone, on the assumption that the perpetrator was facing the child, or the other way around if the child was being held with her back facing the person applying the force. Dr McDonald disagreed that it would be likely that applying pressure in that fashion would cause bruising on the body. Dr McDonald said that it was not uncommon for rib fractures to have no superficial bruising. 22 Dr Young, radiologist, was also of the opinion that the rib injuries were most likely the result of compression to the chest, although he agreed that they could have arisen from the child lying flat on an immovable surface, with pressure being applied downwards upon the child. He said it was possible, but less likely, that the fractures could have occurred by pressure being placed on the back of the child, when she was lying face down, on the same immovable surface. This was because the shape of the chest would change the distribution of the fractures. Dr Young considered that it was unlikely that the fractures would have occurred as a result of a lateral squeezing pressure, or from being lain on her side with pressure being applied to one side or the other. 23 Dr Bear, a specialist radiologist with a particular interest in paediatric radiology, also gave evidence. Dr Bear's evidence was that he considered that the radiological evidence of the posterior rib fractures indicated that there had been pressure from both front and back of the ribs. In other words, the injuries to the ribs were consistent with a compression-type mechanism. That was the same thesis as put forward by Dr McDonald. Relative to the normal handling of a child CR's age, Dr Bear was of the opinion that the force used would "be much in excess of normal handling" (emphasis added). Dr Bear rejected as a possibility that the injuries could have been caused by downward pressure on either the back or front, if the child was lying on a hard surface. His evidence was as follows: "Q: Could the injuries you saw to [CR's] ribs be caused by downward pressure on the front of the child's chest while the back of her chest was held stationary? A: No.

Q: Why not? A: The posterior ends of the ribs tend not to fracture when children are in that situation having cardiopulmonary resuscitation for cardiac arrest when there's compressive force applied to the chest and they tend not to get fractures to the posterior ends of the ribs with that particular mechanism." 24 Dr Bear accepted that in evidence he had agreed that it was possible that the fractures could have been caused by the application of force to the child lying on her back, the force being applied to the front of the body. When he was pressed to confirm that answer, Dr Bear explained: "A: It may be possible but it's generally conceded that the posterior rib fractures are due an anterior and posterior force being applied at the same time, and [since agreeing to the proposition that it was possible the injury was caused as postulated in the question] I've read around the topic and that seems to be the belief, that the posterior rib fractures tend to occur in that particular manner." 25 Dr Bear agreed that the rib injuries could have been caused by the application of force to the left and right side of the chest; that he imagined it could happen that it was caused by the child lying face down on a stationary object, with pressure being exerted on the back; or, alternatively, with the application of force to one particular side of the chest when the other side was held against a stationary object. He said, however, that whichever way the injuries occurred, there would have to have been "considerable force applied".

Issue on the appeal 26 Senior counsel for the appellant identified the issue that the Court was required to determine as: "… whether or not your Honours have a reasonable doubt as to whether or not an inference of intention to cause grievous bodily harm should be drawn, given that your Honours are in just as good a position as a jury to draw or not draw that inference." 27 Senior counsel for the appellant restated this question in a number of ways. He asked, "was it a reasonable possibility … that the appellant did not have the intention alleged". In other words, could an "alternative intention or alternative stated of mind be excluded as a rational inference"? The alternative inference advanced was that the appellant, in a moment of extreme frustration, lost control 'rationally', without thinking of the potential that he might inflict grievous bodily harm to the infant. 28 In this case, there were no witnesses to the infliction of the harm. The appellant made no admissions. Indeed, he denied that he inflicted the injuries, although that denial was not persisted with on the appeal. The appellant did not give or otherwise adduce any evidence. There was thus no evidence as to the circumstances in which the injury to the ribs was inflicted. Accordingly, the jury was required to determine whether it had been established beyond reasonable doubt that the accused had committed the offence solely on the evidence in the Crown's case, including the drawing of inferences from that evidence. However, it was open to the jury, of course, not to be so satisfied. Contrary to the assertion of the appellant, the Crown did not have to exclude "… the possibility that the injuries were the accidental result of normal handling by the parents or relatives, or the result of falls, or play activity with other children, or were intentionally inflicted by someone other than the appellant." 29 The correct test is that stated in Knight, which bears repetition at this point: "… if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence , then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance." (Emphasis added) 30 Latham J explains at 81 and 82 that the trial judge gave appropriate directions to the jury in respect of specific intent. Her Honour has also set out the particular factors upon which the appellant relies as indicative that the trial judge had failed to bring home to the jury that there was an alternative hypothesis inconsistent with the presence of specific intent, that is, "a spontaneous eruption of anger, born of frustration, leading to a temporary loss of control, absent the awareness of the potential for really serious injury": see Latham J at 83. Her Honour sets out the relevant factors at 84. I agree with her Honour that the matters which are of particular relevance in the case relating to CR were: the inability of the medical experts to quantify the degree of force used, other than describing it as "substantial", "considerable" and "excessive"; and that the appellant may not have appreciated the kind of harm that might be caused by substantial compression of CR's chest. 31 Notwithstanding that the medical experts could not 'quantify' the amount of force necessary to inflict the injury, the unanimous effect of their evidence was that the most likely cause of the injury was the use of compressive force. The other possible cause of the injury was the application of force whilst the child was lying on a hard surface. In either case, the degree of force that was necessary was described as "shocking", "considerable" and "in excess of normal handling". The jury were well placed to understand that evidence. Indeed, it is likely to have been more understandable than any 'quantification' based on a scientific formula that the jury may or may not have understood. 32 That leaves the second consideration, that the appellant may not have appreciated the kind of harm that might be caused by substantial compression. I have said there was no evidence to explain the circumstances in which the harm was caused. This was not a case like Cutter where there was evidence before the jury relating to the circumstances in which the injury was inflicted. Rather, given that there was no evidence other than the injuries, this case was one where the act itself "was the most cogent evidence": per Windeyer J in Parker at 648-649. The matters advanced by the appellant as to alternative hypotheses were not matters based on evidence. They were matters about which the Court was urged to speculate. For my part, I consider the case advanced by the appellant is one that raises, at the most, the "bare possibility of innocence". 33 In my opinion, the inference that the appellant intended to cause really serious harm was compelling and it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant, relevantly to the matter in issue here, had the requisite intent to inflict serious bodily harm. The degree of force required to produce these injuries, in the absence of any contrary explanation or evidence of the circumstances surrounding the injury, was "such to be inconsistent with any reasonable hypothesis other than the guilt of the accused": see Peacock v The King, cited in Barca, to which reference is made above. 34 I would dismiss the appeal in respect of count 1. 35 I agree with the orders proposed by Latham J that the appeal be dismissed.

36 HULME J: In this matter I have had the advantage of reading the Reasons for Judgment of Latham J. Her Honour's comprehensive summary of the evidence in the case means that I can be relatively brief. 37 In my view the convictions of the Appellant on each of counts 1 and 3 should be quashed and, given the terms of s34 of the Crimes Act, convictions under s35 of maliciously inflicting grievous bodily harm should be substituted. (These sections have since been repealed or amended but these changes have no presently relevant application). 38 There was, in the case of both of these counts, no direct evidence of the Appellant's intent. It could only be found as a matter of inference from the circumstantial evidence relevant to whether or not such intent existed. In such circumstances the relevant principle may be found in the judgment of Dixon J in Martin v Osborne (1936) 55 CLR 367 at 375 in a passage followed in, inter alia, Knight v R (1992) 175 CLR 495 at 502-3:- "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed." 39 I have no difficulty in accepting, as was quoted by Latham J in a passage from R v Barreto (unreported, CCA, 29 September 1993) that:- "… where a specific result is the obvious and inevitable consequence of a person's act which he has done deliberately, then they may regard that as evidence of his intent." 40 The proposition but reflects common human experience. 41 However, whether the inference of intent should be drawn in a particular case, depends not only on satisfaction that an act was done deliberately but on whether one can be satisfied that a person's thought was extending beyond merely the act to its consequences. While commonly human beings are capable of more than one thought in a finite amount of time, it is also the fact that emotion, particularly intense emotion, is liable to diminish the extent or degree of thought appreciably. What it obvious in the cold light of rational thinking is not necessarily present in the mind of someone labouring under emotional stress. Blind rage - the adjective is not insignificant - is within the realm of human experience and as Latham J has observed:- "… a parent is capable of lashing out at a crying infant, or applying an excessive amount of force while holding a child in a moment of frustration and desperation, however repugnant that behaviour may be." 42 Too frequent are the examples of this seen by the Courts where a baby has died as a result of severe shaking or, as in one case with which I have had to deal, throwing a baby at a bed. 43 Recognition of these sorts of event and of the frustration, desperation and lack of self control that can occur makes it impossible in my view to say that, adapting the words of Dixon J:- according to the common course of human affairs, the degree of probability that the Appellant's actions would be accompanied by an intent to inflict grievous bodily harm is so high that the contrary cannot reasonably be supposed. 44 Frustration, desperation, or lack of self-control are not necessarily inconsistent with an intent to inflict injury, but it is impossible to conclude that injury inflicted under their influence is always intended and this even though there may be deliberateness in the actions of the person causing the injury. The contrary of the existence of an intention to inflict grievous bodily harm can reasonably be supposed and thus there is a reasonable explanation or possibility consistent with the Appellant's actions other than an intention to inflict grievous bodily harm. Accordingly the Appellant was entitled to be acquitted of counts 1 and 3. 45 These conclusions make it unnecessary for me to reflect on any other aspect of the case. However, it is not inappropriate to observe that the way in which the evidence indicated the injuries were done to the ribs of CR and TV, viz by their torsos being squeezed, strikes me as a quite extraordinary way of seeking to inflict injury, particularly serious injury on a child. Indeed one might fairly go so far as to describe the method, if intentional, as bizarre. It certainly does argue for the injuries having been inflicted in circumstances of loss of control rather than in circumstances of intent. 46 I have expressed my view that convictions under s35 of maliciously inflicting grievous bodily harm should be substituted. However, as mine is a minority view it is unnecessary that I turn to the topic what sentences would be appropriate for those offences. 47 LATHAM J : The appellant was convicted after trial of two counts (Counts 1 and 3) of maliciously inflict grievous bodily harm with intent to do grievous bodily harm (s 33 Crimes Act 1900) and one count (Count 2) of assault occasioning actual bodily harm (s 59 Crimes Act). The appellant appeals against his convictions on the two counts of maliciously inflict grievous bodily harm, on the basis that the jury's verdicts with respect to the appellant's intention to inflict grievous bodily harm were unreasonable. The appellant does not contend that the verdicts were unreasonable in any other respect. 48 The offence the subject of Count 1 occurred between 6 April and 28 June 2001, when the appellant was living in Gunnedah with his then partner, JB, and their infant daughter CR, aged 3 months. The offence the subject of Count 3 occurred on or about 9 May 2003, when the appellant was living in Armidale with his then partner, RV, and their infant daughter TV, aged 3 weeks. Both CR and TV sustained leg fractures and multiple rib fractures, which, according to the Crown case, could not be explained otherwise than by the application of considerable force by the appellant to each child at the relevant time. The particularised grievous bodily harm in each case was the rib injuries, although the injuries to the legs of the infants were part of the circumstances surrounding the discovery of the rib fractures. 49 The Crown case was an entirely circumstantial one. Following an unsuccessful application to have the three charges tried separately, the appellant was required to meet the co-incidence evidence advanced by the Crown, namely, that the appellant was the only common link to all three children. The opinion evidence of a number of medical practitioners, including paediatric specialists, to the effect that the leg and rib fractures to CR and TV displayed similar characteristics and were likely to have been caused by the application of substantial force of a specific kind, underpinned the Crown case, both as to the identity of the perpetrator and as to proof of specific intent. 50 The issue at trial was whether the Crown had excluded the possibility that the injuries were the accidental result of normal handling by the parents or relatives, or the result of falls, or play activity with other children, or were intentionally inflicted by someone other than the appellant. The appellant neither gave evidence nor called evidence on his behalf. A record of interview in 2001 in relation to the injuries to CR, tendered in the Crown case, contained denials by the appellant that he was responsible. The appellant declined an interview in 2003, but told police that he was never alone with TV. The appellant's counsel at trial placed considerable emphasis upon the evidence that the appellant had never been observed by anyone to handle either of the infants in a rough manner. 51 Because of the way the appellant's case was run at trial, there was almost no reference by the appellant's counsel to the element of specific intent in his address to the jury, in the event that the jury found that the appellant had inflicted the injuries. It is necessary to examine what was said on that subject, together with the evidence relied upon by the Crown to found the inference of specific intent in each case. The Medical Evidence Concerning the Injuries to CR. 52 CR was born on 6 April 2001. At almost three months of age, she was in the bottom 3 per cent of children of her age and gender in terms of her length (or height) and in the bottom 1 percent of children of her age and gender in terms of her weight. Her weight was described as adequate for her height, with a smaller skeletal structure than the average three month old girl. She was therefore more frail than the average child of that age. CR's mother described her as "tiny". 53 CR was taken to a general practitioner in Gunnedah, Dr Brian Bickerton, on 18 May and 14 June 2001. On the former of these two occasions a chest x-ray was taken in response to a suggestion that the child had a heart murmur. The x-rays failed to reveal any fractures to the rib cage. On the latter occasion, the complaint was shortness of breath and reflux. 54 On 28 June 2001, JB attended Dr Bickerton with CR. Dr Bickerton noted swelling to the left leg and foot of CR and ordered x-rays to be taken. Dr Bickerton suspected a broken leg and was of the view that the injury had been recently sustained. CR was admitted to Gunnedah District Hospital where she was examined by Dr David McDonald, a specialist paediatrician of 25 years experience. The x-rays confirmed fractures to the right femur, the right tibia, and to the tibial shaft and fibula shaft of the left leg. There was also a possible fracture to the distal right tibia. Dr McDonald was of the opinion that the likely cause of the fractures to the left leg was someone holding the leg and yanking hard or twisting the limb and that this would have required force well above ordinary baby handling. 55 Dr Martin Young, a radiologist, gave evidence that the fractures to the tibia and fibula of the left leg were caused by the application of force outwards, upwards or downwards across the shaft of the leg, so that at the point of least resistance a break occurs. Those fractures occurred within 48 hours of presentation, whereas the other fractures were sustained up to two weeks previously. 56 A skeletal survey performed on 29 June 2001 revealed multiple rib fractures, namely, on the lateral aspects of the left ribs, numbers 2, 3, 5, 6 and possibly 7, and on the right ribs, numbers 3, 4, 5 and probably 6, and to the front right rib number 2. According to Dr McDonald, the force required to cause such rib fractures in an infant of CR's age was quite substantial, well beyond merely holding the child, and requiring the application of pressure to the front and the back together, such that an onlooker would be shocked. Dr McDonald described the action as analogous to a person gripping the child around the chest, applying symmetrical pressure to the front and to the back, in the nature of a crushing effect. Dr McDonald went on to say that he thought the amount of compression required to cause the rib injuries was well beyond what an ordinary person would have thought reasonable, although he was unable to quantify that force in terms of pounds per square inch. In his opinion, the amount of force required to break a baby's bones had to be assessed against the fact that the bones were more flexible, becoming more brittle as calcium was deposited in the course of development. 57 Dr Young's evidence was that the fractures to the ribs ranged from one to three weeks of age. He was also of the opinion that the rib injuries were caused by compression from front to back or back to front, including what would occur with a squeezing action. Dr Young expressed the view that quite significant force by an adult was required to fracture the ribs of a child. 58 Dr John Bear, a paediatric consultant radiologist at John Hunter Hospital, examined the x-rays taken of CR's chest on 29 June 2001. In his opinion, it was very unusual to see fractures such as this in infants under 12 months of age and that such fractures required a degree of force ("considerable force") much beyond the usual force that would be involved with a very young infant. In his view the fractures indicated forceful squeezing of the chest and possibly shaking. The posterior rib fractures indicated that pressure had been applied from both the front and back of the ribs. It was possible that there were three episodes of fracturing.

The Medical Evidence Concerning the Injuries to TV. 59 TV was born on 21 April 2003. Her birth weight was 4 pounds, 11 ounces or 2.13 kg. RV remained in hospital with TV for two weeks after her birth, returning to live with the appellant at the beginning of May. 60 On 10 May 2003 TV was taken to the emergency department at Armidale Hospital. Upon arrival, TV was observed to have bruising to both sides of the front of her chest, which had not been present in the course of a prior examination on 8 May 2003. TVs breathing was also strained. Subsequent x-rays depicted a number of fractured ribs on both sides of the chest. 61 Dr Keith Power, a specialist paediatrician at Armidale Hospital, examined TV at about 1 p.m. TV was in moderate respiratory distress and required ventilation with oxygen in order to improve her circulation. In Dr Powers opinion, TV would have died without medical intervention. There was a palpable crackling on both sides of the chest and there appeared to be fluid and blood inside the tissue of the lung. There was bruising below and lateral to the right nipple and just outside the left nipple. These bruises were roughly over the lateral rib fractures, with some swelling on the right. There were six small bruises on the face and forehead and the baby was obviously drowsy and in pain when moved. 62 Dr Power concluded that TV had been injured within the preceding 24 hours before admission and could have been injured only a few hours before admission. After TV's condition was stabilised with oxygen and intravenous fluids, she was transferred to a paediatric surgical intensive care unit at John Hunter Hospital in Newcastle. 63 A midwife who cared for TV at Armidale Hospital recalled a conversation between another midwife, Ms Opie, and the appellant and RV, to the effect that the bruises to TV's chest suggested that someone had picked up the baby under the arms too tight. The appellant was said to have replied "I have picked the baby up like that but not hard enough to hurt her". 64 Ms Opie gave evidence that she spoke to the appellant and RV and asked the appellant how he handled the baby. The appellant responded that he always lifted the baby with his palm up, cradling the baby's head, but he also said that he sometimes picked her up under the arms and around the chest "but never hard enough to hurt her". He demonstrated with his hands, placing the thumb to the front of the baby's chest and the fingers at the back under the baby's arms. 65 Professor Graham Vampani examined TV at John Hunter Hospital on 11 May 2003. He concluded that there was air in the pleural cavity (pneumothorax) and blood leaking into the pleural cavity (haemothorax) as a result of a punctured lung. In his opinion, TV's ability to breathe was limited because the rib cage was so badly damaged. Chest drains had been inserted to drain the fluid out of the pleural cavity. He was also of the view that without medical intervention TV would not have survived. Professor Vampani noted multiple fractures to ribs 1 to 9 on the right side of the rib cage and fractures to rib numbers 2 to 10 on the left side. 66 Professor Vampani also explained the injuries to the ribs by way of compression to the chest. This was consistent with the chest being held and squeezed tightly, with pressure applied from front to back, or from back to front. The amount of pressure necessary to cause such injuries was well in excess of what would be involved in the normal moving, holding and carrying of a child. Even where CPR was administered to a child, it was very rare for rib fractures to be found in children who had undergone such a procedure. Given the presence of the pneumothorax and the haemothorax, Professor Vampani was of the view that the amount of force that was applied to TV's rib cage was particularly severe. Such a force would have been applied less than 23 hours prior to the child's admission to hospital. 67 Dr Bear was of the opinion that the rib injuries were caused by "excessive force applied to the chest by .. adult hands, squeezing the chest" (T/S 481) The mechanism was the same as that which had caused the rib fractures to CR. It was possible that there were two separate incidents causing the fractures, although Dr Bear was unable to determine from the x-rays how many ribs may have been fractured on separate occasions. 68 On 12 May 2003 x-rays were taken of the right leg. They revealed a fracture to the knee which, in the opinion of Dr Bear, was the result of shaking or pulling or twisting of the leg. Dr Bear thought that the mechanism of the force applied to the left leg of CR and the right leg of TV was similar.

The Conduct of the Trial 69 The Crown Prosecutor's opening address touched on the evidence in general terms in the course of illustrating that the link between the specific injuries suffered by CR and TV was the accused. The Crown did not refer to the alternative verdicts to counts 1 and 3. The appellant's counsel at trial opened to the jury on the basis that the jury would not be satisfied beyond reasonable doubt as to how the injuries were inflicted, that is whether they "were brought about by deliberate as opposed to accidental human intervention", or that it was the appellant who was responsible for those injuries. 70 The first reference in the trial to the available alternative verdicts came with the Crown Prosecutor's closing address on the fourteenth day of the trial. In fact the Crown Prosecutor commented that "it is in one sense something that has been sprung upon you, but his Honour will go through that in detail later on, but the basic difference between what's on the indictment and the alternative option is the accused's state of mind." 71 The Crown relied upon a number of particular features of the expert evidence, in order to ground the inference that the accused intended to inflict grievous bodily harm on CR and TV. The Crown Prosecutor in his address referred to the evidence given by Dr Bear, during which the x-rays of the rib cage of the infants in each case was compared with the size of an adult hand when discussing the squeezing mechanism that brought about the fractures. This evidence was coupled with the reference by Dr MacDonald to the greater tolerance inherent in the bones of an infant before calcification has occurred. In addition, the Crown Prosecutor referred to the expert evidence indicating that neither a pneumothorax nor a haemothorax are normally associated with rib injuries. The combination of these factors indicated the application of excessive force to the body of each child, to the extent that :- The only reason a person would apply inappropriate, excessive force to the body of a child of these ages would be to hurt them. In the case of both [CR] and [TV], he would know that the amount of force being exerted was going to hurt these children very badly. You would know, and he knew, that he was inflicting serious injury. In particular, once he had moved into the flat with [R] and [TV] had been born, he knew what this sort of conduct could do to CR. He already had an example of what he was capable of doing when he squeezed the child. …… On the Crown case he would have known, he must have known at the time he did it to CR as well. 72 This submission appears at the end of the Crown's address, immediately before the Crown suggests that the appropriate verdict in each case is one of guilty. I do not agree with the appellant's submission in this Court that the word "could", in the context of the appellant's knowledge of the effect of his conduct towards CR, misled the jury into thinking that recklessness on the part of the appellant was sufficient to prove the specific intent element. The very next sentence clarifies the meaning intended by the Crown Prosecutor, that is, that the appellant knew that his conduct towards CR was capable of causing serious injuries. This submission was a significant part of the Crown case on the element of specific intent on count 3 of the indictment. 73 The Crown's discussion of the expert evidence, in support of the submission that an intention to inflict really serious injury had been proved beyond reasonable doubt, assumed that the jury was satisfied beyond reasonable doubt that the accused had inflicted those injuries, namely that the jury had rejected the possibility that the accused had accidentally injured the children, or that someone else had done so. The Crown correctly framed the issue with respect to specific intent in terms of the accused's state of mind, not the state of mind of some other unknown assailant. 74 The appellant's counsel then addressed. After dealing with the evidence from the mother of each infant and suggesting that the appellant had secondary responsibility for the care of them, counsel made the following submission before taking the jury to the expert evidence in some detail :- If you infer, as the Crown has invited you to, from the nature of the injuries they bespeak such a serious level of harm to the child that a proper view could only be that they were brought about by someone acting deliberately with the intention to inflict those injuries, then you'd have to go on to consider the question that the Crown established (sic), that the only person who could do that was the accused. But you notice in the course of reasoning toward the guilt that the Crown is submitting to you that there are a number of crucial steps that have to be proved beyond a reasonable doubt. Examples of that are that the injury was not accidental, and that if it was not accidental you're satisfied that it was deliberate in the sense of someone intending to cause grievous bodily harm or some actual harm in the case of the alternate count in the indictment, the alternate statutory charge, which I imagine will be left to you, and that the only person who could have done that on the evidence is the accused . … [W]here the Crown bears an onus of proof beyond reasonable doubt it must exclude any reasonable possibility that is consistent with the accused's innocence or his not being guilty of the offence. Obviously accident is inconsistent with guilt, as is the harm to [CR] being caused deliberately but possibly as a reasonable possibility by someone other than the accused. 75 The thrust of these submissions invited the jury to approach its task by determining whether the Crown had excluded the possibility that the injuries to each child were accidentally inflicted by the accused or some other person, or that the injuries were deliberately inflicted by someone (other than the accused) who intended to cause each child grievous bodily harm. The element of specific intent was almost completely subsumed in the argument that someone other than the accused assaulted each child, assuming accident had been excluded. 76 It is of course understandable, given the forensic decision taken by the appellant and his counsel to defend the charges on that basis, that no attention was given in counsel's address to the accused's state of mind, should the jury reach a conclusion adverse to the accused on the primary issue. Passing reference was made to it in the following submissions :- As with all circumstantial cases if there is available to you any reasonable possibility of any of the injuries referred to arising in a way other than being done by the accused, deliberately by the accused with the intention specified in the indictment , then it's my submission to you, you can't do anything else other than acquit the accused because this is a criminal trial. And the standard of proof beyond reasonable doubt and the onus on the Crown means that the Crown must exclude any reasonable possibility that is inconsistent with the guilt of the accused. They have to exclude it, it's the nature of our criminal process. If you, at the end of the day, are left in this situation you think that [the accused] might have done something that brought about these injuries but you are not satisfied beyond reasonable doubt of each of the elements of the offence then you just, because of the criminal nature of this process you must, according to our law, returned verdicts of not guilty. 77 When counsel came to deal with the individual counts in the indictment, he referred to the onus upon the Crown to satisfy the jury beyond reasonable doubt that at the time that the injury was inflicted, the accused had the intention to seriously harm each child. In that respect, counsel said :- So far as that is concerned I'd say you wouldn't be satisfied. Both the count on the indictment and the statutory alternative, you wouldn't be satisfied that the Crown had established that [the accused] was responsible for the serious harm or that the Crown had satisfied you beyond a reasonable doubt that he had acted maliciously. And you wouldn't be satisfied beyond reasonable doubt that he had at any time an intention to do grievous bodily harm. So on the first count, the defence case is that the Crown has not excluded beyond a reasonable doubt the possibility that [CR] was accidentally injured by [AB] or another child or by an adult who was unaware that their actions inflicted injury upon [CR]. However, if you are satisfied beyond a reasonable doubt that the injuries to [CR] could only have been caused by someone assaulting her with the intention to cause grievous bodily harm or some actual bodily harm, the Crown has not excluded beyond reasonable doubt the possibility that the person who committed the assault was someone other than the accused . 78 Exactly the same submission was made when counsel took the jury to the third count in the indictment. 79 The learned trial judge directed the jury largely in accordance with the way the issues had been framed by the defence submissions. The conventional direction on specific intent was given to the jury at SU 55. Dealing with the element of specific intent on counts 1 and 3, his Honour said :- Intention may be inferred or deduced from the circumstances in which the injuries alleged were inflicted, and from the conduct of the accused before, at the time of, or after the injuries were inflicted. In some cases a person's acts may themselves provide the most convincing evidence of intention. Where a specific result is the obvious and inevitable consequence of a person's act and where he deliberately does that act, you may readily conclude that he did that act with the intention of achieving that specific result. …………………………………………………………………. You may think there is no difficulty at all about coming to such a conclusion, but you must remember that you are considering the intention of the accused, not what your intention might have been had you been in his position, nor the intention of any theoretical person. ….. If somebody does something that is obviously going to cause serious bodily injury, you may infer from those circumstances that that was the intention of the person. 80 His Honour then summarised the Crown's submission, to the effect that the nature of the injuries suffered by CR and TV, together with the evidence, such as it was, regarding the amount of force or pressure required to inflict those injuries to infants of that age, was capable of supporting the inference that, "whoever it might have been who inflicted these injuries on these two girls … intended to do so". The trial judge then summarised the defence submission that the Crown had failed to prove specific intent, on the basis that there were "various possibilities [that] could explain how injuries of that type might have been occasioned to these children in innocent circumstances in which no one should be held to blame."

81 To the extent that this direction confused the intention of an unknown person with that of the accused, his Honour later directed the jury in wholly unexceptionable terms namely :- If you were to be satisfied beyond reasonable doubt, after considering all of the evidence of what has been said to you on behalf of the accused, that he was the person responsible for inflicting these injuries, you must also consider in relation to counts one and three, whether he did so with the intention of causing the grievous bodily harm alleged by the Crown. If you came to the view that you are satisfied beyond reasonable doubt that he maliciously inflicted the grievous bodily harm in either count, but were not satisfied beyond reasonable doubt that he did so with the intention of causing grievous bodily harm in either count, you would then need to turn your mind to the statutory alternative, the alternative charge that is available under the law, and consider whether he is guilty of that charge, which involves consideration of whether he maliciously inflicted the grievous bodily harm. If you are satisfied beyond reasonable doubt that he did so, it would be appropriate to returned verdicts of guilty to the alternative charge in each case. 82 This direction was substantially repeated and amplified at SU81 and 208-210, in terms that focused the jury's attention upon the Crown's obligation to prove beyond reasonable doubt that the accused intended to inflict grievous bodily harm. The trial judge explained to the jury that the term "malicious" in the law imported the concept of recklessness, so that if the jury entertained the possibility that the accused was merely reckless in his infliction of harm upon either of the victims, it would not be open to them to return a verdict of guilty to the corresponding count on the indictment. The Appellant's Argument. 83 As I have already indicated, the appellant does not contest the jury's satisfaction beyond reasonable doubt that he caused CR and TV harm by compression or squeezing of the chest of each infant. The submission is that a number of factors militated against a finding beyond reasonable doubt that he intended to thereby cause grievous bodily harm. The appellant contends that these factors were sufficient to allow for an alternative hypothesis inconsistent with the presence of a specific intent, that is, a spontaneous eruption of anger, borne of frustration, leading to a temporary loss of control, absent the awareness of the potential for really serious injury. It is this alternative explanation, it is submitted, that was not brought home to the jury and which therefore renders the verdicts unreasonable in that particular respect.

84 Those factors are :- a) No weapon was used in either case. b) The inability of the medical experts to quantify the degree of force used, other than describing it as "substantial", "considerable" and "excessive". c) The evidence establishing that the appellant was attentive and caring towards his children and the absence of any history of violence prior to the offences coming to light. d) The absence of any motive on the part of the appellant to harm his children. e) The appellant may not have appreciated the kind of harm that might be caused by substantial compression of CR's chest (although it is conceded that the same proposition does not apply in the case of TV).

85 It is worth noting that an offence under s 33 is complete where the offender intends inflicting really serious harm, although the specific type of injury that results from the assault may not have been intended. Further, intention is not synonymous with motive or desire. The offender's state of mind, namely whether or not he/she resolved to inflict really serious harm, is the focus of the inquiry, not whether the offence can be explained by a loss of control or as an act of revenge. Indeed, a loss of control may provide the impetus for the formation of an intention to inflict really serious harm at the time of the assault, whether or not the offender wanted to harm the victim. As Kirby J observed in De Gruchy v The Queen [2002] HCA 33 ; (2002) 211 CLR 85 :- Distinguishing between the usually essential ingredient of a criminal intention and a person's desire, purpose or motive will sometimes be important. But, as such, motive is rarely, if ever, an element of a criminal offence. Motive must not, therefore, be confused with intention. Motive may be "the reason that nudges the will and prods the mind to indulge the criminal intent". It may be the feeling that prompts the operation of the will, the ulterior object of the person willing. It generally has two evidential aspects. These will be the emotion that is supposed to have led to the act and the external fact that is the possible exciting cause of such emotion, but not identical with it.

86 The appellant's counsel at trial addressed the jury on the failure of the Crown to adduce any evidence of motive on the part of the appellant to harm his children, in the context of a submission that the jury would not be satisfied beyond reasonable doubt that the appellant inflicted the injuries. The trial judge directed the jury, properly, that the Crown had no obligation to prove motive and that in many cases, it is difficult, if not impossible, for the Crown to identify a motive. No doubt the trial judge had cases of this nature in mind. It is a regrettable fact that severe physical abuse of children occurs in the absence of any apparent motive, ostensibly by those who profess to love their children. However, the jury was reminded of counsel's submission and there is no reason to think that it was not given appropriate weight in their deliberations. The absence of apparent motive was a matter the jury was entitled to consider when determining whether the Crown had proved that the appellant was the assailant, but it had little, if any, relevance to proof of intention. 87 In any event, this was not a case of proven absence of motive, as distinct from absence of an apparent motive. As Gaudron, McHugh and Hayne JJ observed in De Gruchy v The Queen, again in the context of the relevance of motive to proof that the accused was the offender, :-

Although absence of motive is relevant, the appellant's argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive. The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of "positive significance", either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive.

88 Turning to the remaining factors relied upon by the appellant, the observations by the appellant's family members of his attentions towards the children only went so far as to establish his behaviour whilst in the company of other adults. The evidence said nothing about the appellant's behaviour towards the children when he was solely responsible for their care. The jury's finding that the appellant inflicted the injuries acknowledges that the appellant's treatment of his children was obviously substantially different when he was unsupported by other adult caregivers. Once again, this feature of the appellant's case went substantially to the issue concerning the identity of the perpetrator. 89 True it is that the appellant did not resort to the use of a weapon or implement, but, with respect to senior counsel, this submission has an air of artificiality about it. It is difficult to envisage how such injuries could have been inflicted by the use of an implement, and it is now not disputed that the jury's verdicts necessarily represent an acceptance of the Crown's expert evidence as to the mechanism of the injuries in each case. The most that can be made of this submission in my view is that the compression of the chest of each infant by the appellant's hands is not inconsistent with a sudden loss of control. The use of a weapon or implement capable of inflicting really serious injuries such as extensive rib fractures is usually consistent with a degree of pre-meditation, however slight. 90 The two factors that are capable of bearing more directly upon proof of the element of specific intent are b) and e) above. 91 Qualitative descriptions of the degree of force required to fracture the bones of an infant were the only available terms. It is impossible, even in conventional cases involving the intentional infliction of serious injury by an adult male upon another adult male to quantify the degree of force applied. That is implicit in the necessity, in the majority of cases where specific intent is an element of an offence, to direct the jury on the drawing of an inference that grievous bodily harm was intended by the accused. There is no compelling reason why the jury's capacity to draw such an inference in this case should be affected by the Crown's reliance upon a qualitative assessment of the degree of force used in each case. 92 There is, however, a potential for doubt with respect to the element of specific intent when one considers b) and e) together. In order to determine whether that potential should have been realised in the appellant's trial, it is necessary to briefly review the test to be applied upon appellate review. Section 6 of the Criminal Appeal Act 1912 - Unreasonable Verdict. 93 In M v The Queen (1994) 181 CLR 487, the majority of the High Court laid down the approach to be taken according to s 6 of the Criminal Appeal Act:- Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (citations omitted) 94 A doubt experienced by the appellate court will, in most cases, be a doubt that the jury ought to have experienced. Such a doubt may be capable of being resolved by the jury's advantage in seeing and hearing the witnesses at trial. In the circumstances of the appellant's trial, where the element of specific intent depended largely upon the weight accorded to the expert evidence, it is unlikely that the jury derived significantly greater benefit from seeing and hearing those witnesses than is available from a reading of the trial transcript. 95 That test was confirmed in MFA v R [2002] HCA 53 ; (2002) 213 CLR 606, in terms that emphasised the special respect and legitimacy accorded to jury verdicts in serious criminal trials :- When attention is focussed on the actual language of s 6(1) of the Act, it appears to confer a very large power to be applied by reference to criteria that are not stated in restrictive or narrow terms. On the face of things "unreasonable", in particular, seems to state a very broad test. Two indications in s 6(1) suggest that this seeming amplitude is to be restricted somewhat having regard to the context. The first such consideration is that the subject matter of the appellate court's decision is a "verdict of the jury". Conventionally, the jury has been described as the constitutional tribunal for deciding contested facts. In respect of the specified cases, the jury occupies an undoubted constitutional status in the federal offences to which s 80 of the Australian Constitution applies. A jury is taken to be a kind of microcosm of the community. A "verdict of [a] jury", particularly in serious criminal cases, is accepted, symbolically, as attracting to decisions concerning the liberty and reputation of accused persons a special authority and legitimacy and hence finality. In that context, and against the background of the tradition of the jury trial over the centuries, the setting aside of a jury's verdict is, on any view, a serious step. Hence, it is a step that assigns to the words "unreasonable" or "[un]supported" in s 6(1) of the Act a strictness of meaning that, in isolation or in other contexts, those words might not enjoy. The second contextual indication of what s 6(1) of the Act is driving at is given by the reference to the demonstration, "on any other ground whatsoever", of a "miscarriage of justice". These words suggest that the kind of "unreasonable" verdict or verdict that "cannot be supported, having regard to the evidence" with which s 6(1) is concerned is one that leaves the appellate court believing that, notwithstanding the verdict, there has been a "miscarriage of justice". These contextual indications, obliging a measure of restraint on the part of courts of criminal appeal in taking the serious step of setting aside a conviction based on the verdict of a jury, have led to judicial attempts to re-state, in other words, what s 6(1) states in the words of Parliament. 96 To these principles, two further considerations should be added. Firstly, the question whether the inference that the appellant intended to inflict grievous bodily harm was open to the jury, in the sense that it was open to the jury to reject an explanation for the infliction of the injuries inconsistent with such a specific intent, falls to be determined upon the whole of the circumstances relied upon by the Crown. There may have been factors which, when taken alone, might not be probative of an intention to inflict really serious harm, but that does not necessarily preclude the drawing of the appropriate inference from the combined force of all the circumstances: R v Hillier [2007] HCA 13 ; see also per Dunford J [39] - [43]. 97 Secondly, it has been observed that in a circumstantial case, a jury embodies the common experience of men and women of the community, with all the variety of backgrounds, ages and experience of life that such a community possesses. Their collective knowledge and common sense should not be underestimated : R v Kaldor (2004) 150 A Crim R 271 ; Chahine v R [2006] NSWCCA 179.

Resolution 98 The Crown submitted on the hearing of this appeal that, having regard to the age of CR, her low birth weight and small stature, the constellation of injuries and the nature and extent of the force required to inflict those injuries upon her, it was open to the jury to be satisfied beyond reasonable doubt that the appellant intended to inflict grievous bodily harm upon her. The same submission was made in respect of the verdict on count 3, although it was fortified by the younger age of TV, together with her low birth weight and the appellant's knowledge of the injuries suffered by CR two years earlier. 99 There can be no doubt that foresight of the consequences of a person's acts may be regarded as evidence of the person's intention. The direction on proof of specific intent, given by the trial judge in this case, does not equate foresight of consequence with intention. As observed in R v Barreto NSWCCA (unreported) 29 September 1993, by Finlay J (with whom Gleeson CJ and Campbell J agreed): That direction did no more than point out to the jury that where a specific result is the obvious and inevitable consequence of a person's act which he has done deliberately then they may regard that as evidence of his intent. Such a direction properly leaves the question with the jury to consider whether the Crown has established that this accused had the requisite intent at the time of his act.

See also R v Pearson (2002) 137 A Crim R 419 ; [2002] NSWCCA 429. 100 Here, the evidence capable of founding the inference that the appellant intended to inflict really serious harm upon TV was particularly compelling. The appellant could not have been under any misapprehension that, by squeezing TV's chest, fractures to her ribcage were a virtually certain outcome, particularly given her tender age and size. In these circumstances, :- the inference [the injuries were] intended is of such compelling force as not to require the circumstances be subjected to sophisticated analysis particularly where no factual issue is asserted to arise or no contrary explanation is given. R v Sancar [1999] NSWCCA 284 per James J (with whom Spigelman CJ agreed) 101 Whilst the jury was required to consider the evidence in support of the inference on count 1 separately from the evidence in support of the inference on count 3, it remains true to say that the inference in each case was supported by cogent expert evidence and that "no contrary explanation [was] given", in the sense that the appellant's denial of responsibility precluded the defence from exploring the appellant's state of mind at the relevant times. Once the jury were satisfied that the appellant was the offender, there was very little, if any, impediment to a finding of specific intent. 102 Of course, the jury were required to have regard to all of the evidence, such as it was, before drawing the inference as to the appellant's intention. The evidence before the jury established that the appellant was 21 years of age when CR was born of the relationship with JB. As such, he was an adult parent of a very small child. In addition, there were the competing demands of another girl, aged 2 years and 4 months, who was not the child of the appellant. She was the victim in respect of count 2 on the indictment. 103 This evidence of the appellant's personal circumstances in 2001 had to be weighed together with the expert evidence relied upon by the Crown to support the inference of specific intent. These circumstances, in my view, assume particular significance when account is taken of the directions given by the trial judge on the meaning of "maliciously" in s 33 of the Crimes Act, together with the directions on the drawing of the inference as to specific intent. The directions clearly left for the jury's consideration the possibility that the appellant recklessly inflicted harm upon CR, and that such a basic intent was inconsistent with awareness on the part of the appellant that the obvious consequence of his actions was the infliction of really serious harm. 104 It was not beyond the collective experience or common sense of the jury to appreciate that a parent is capable of lashing out at a crying infant, or applying an excessive amount of force while holding a child in a moment of frustration and desperation, however repugnant that behaviour may be. It was not necessary, in my view, for such a submission to have been made, before the jury was entitled, on all the available evidence, to draw the inference contended for by the Crown. In arriving at this conclusion, I have paid proper regard to the primacy of the jury's verdicts on both counts. 105 For these reasons, I would dismiss the appellant's appeal against conviction on counts 1 and 3. There was no appeal against sentence. 106 The order I propose is :- 1. The appeal against conviction is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.