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 (These sections have since been repealed or amended but these changes have no presently relevant application).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.