Hayward v R

CROWN CASE STATEMENT BACKGROUND

The complainant [BB] was born on 31 March 2010. His mother is [CC].
In February 2014 when the complainant was almost 4 years old his mother moved to and address in Blackett, the home of the accused [AA]. The accused had been living at the premises for some time with her 3 children. In 2014 she was also pregnant with child later born in June 2014. The complainant and his mother slept in the lounge room of the premises.
At around about the same time that the complainant and his mother moved into the premises the co-accused [DD] also moved into the premises. He was a friend of [AA].
Whilst living at the premises a case worker from Family and Community Services, [EP] was tasked with monitoring [BB].
In late March 2014 [EP] attended the premises and found that the complainant seemed bright and happy.
Over the course of time that the complainant and his mother were living at the premises the relationship between [BB] and [AA] deteriorated.
On 26 May 2014 [BB] was seen at Mt Druitt hospital with a number of injuries, including a right sided subdural haematoma. He was transferred to Westmead Children's hospital child protection unit. His mother, [CC] gave a history that [BB] had fallen down some stairs. Medical opinion was that this history did not explain his injuries and an investigation followed. THE OFFENCES
The first time that anything occurred was approximately two weeks prior to [BB]'s admission to hospital. According to [CC] an argument developed as to whether [BB] had called [AA] a "motherfucker". The child denied saying this.
Taggart and the accused took [BB] to the bathroom and made him sit on a chair. They secured his hands behind his back with some sort of strap and turned on the cold water. [CC] could hear her son asking to be let out and calling for her.
The two co-accused repeatedly turned on the cold water and demanded that the complainant tell the truth. This incident lasted for about an hour. Afterwards the complainant's mother changed him into dry clothes. She noticed that he had red marks on his wrists. [Count 1 on the indictment - aggravated detain for advantage (in company)]
The next incident occurred a couple of days later. [BB] was sitting at the dining room table with the rest of the occupants of the house. [AA] became angry at the child because she believed he had given her a dirty look.
[DD] got up from the table and picked up a baseball bat. He returned to the table and threatened to hit the complainant with it on the "bum". The complainant's mother objected, but [DD] said that this was his and [AA]'s house so he could do whatever he wanted. He told the complainant's mother she could leave if she didn't like it. At some point the accused struck the child with the bat to his arm causing him to cry. [Charge as against [DD] only]
On a further occasion the complainant's mother saw the accused [DD] walk her son down the side of the house. The complainant called out to his mother. [AA] told her not to interfere as [DD] was teaching him a lesson. The accused struck the child a number of times to the legs and bottom with the baseball bat. [CC] could hear her son crying and screaming. Shortly afterwards the complainant returned inside and apologised to [AA]. Later that day when the complainant's mother took him to the toilet she saw that the child had red marks to his legs and bottom. [Charge as against [DD] only]
That same day the occupants of the house were having dinner. [AA] accused the complainant of spitting out his food and giving dirty looks. The incident escalated with the accused's children claiming [BB] had said "fuck off" which the child denied. [AA] told [DD] to get some Dettol. When asked what she was going to do with it she told [CC] that she was going to make him drink it. [AA] made the complainant drink a cup of Dettol, which made him vomit on the ground near the verandah area. [Count 2 on the indictment - cause noxious thing to be taken with intent to injure - [AA] only]
The following day an argument arose at dinner again when the complainant refused to eat dinner. He was again accused of giving [AA] dirty looks. The complainant was the taken by the two accused and placed on top of a freezer. The complainant asked to come down but was made to stand there. At some point [AA] knocked the freezer and the complainant fell to the ground. The complainant cut his head in the fall. [AA] said the cut was not deep and the complainant was not taken to hospital. [Count 3 on the indictment - assault occasioning actual bodily harm in company].
On Saturday 24 May 2014 a friend of [DD]'s named [EE] visited the premises at around 4:30pm. He noticed that the complainant had bruising to his face. At some stage [AA] walked out of the house and demanded to know why the complainant had given her a strange look. She made the complainant stand next to a Colourbond fence. This continued for over an hour with the [AA] repeatedly asking [BB] why he had given her a strange look and [BB] saying "I don't know".
At about 6pm [AA] called [BB] over and questioned him again. She told [DD] to grab the sand stone brick and give it to [BB]. The brick was about 20 - 30cms long about 10cms wide and 10cms thick. [DD] told the complainant to hold it above his head. The complainant was crying. If he dropped it or lowered it he was told by one of the accused to get the brick above his head. [DD] would pick up the brick and hold it over the complainant's head until he had no choice but to hold it. According to [EE] this went on for hours. The complainant continued to cry and complain his arms hurt. [AA] continued to ask why the complainant had given her a strange look and the complainant continued to say "I don't know". After some time [BB] said "fuck you" to [AA]. [DD] got up and swept the child's legs out from under him. [BB] fell and hit the right side of his head on the cement. The child began to cry and scream. The child had a red mark to the side of his head. After the accused checked he was not bleeding the child was made to return to where he was standing and hold a brick over his head. [DD] obtained a super soaker filled with water and soaked the child with water. It was very cold and the child was crying. [Count 4 on the indictment - assault occasioning actual bodily harm in company] The child was allowed to go inside for a warm shower at around midnight. [EE] stayed the night at the premises.
The following morning [BB] got up at around 7:30am. He complained that his head was sore. His mother gave him an apple to eat. The complainant stood beside the outside table to eat it. At this time [AA] walked past and kicked his legs sweeping the child's legs out from under him. He fell to the ground and hit his head. [EE] asked why she had done this and the accused said because the child had not said thank you for the apple.
That night [EE] returned to the house at around 8:30pm. [AA] made the child stand next to the fence because he had stared at her. She questioned him as to why he was doing it. The complainant said he did not know. She told the complainant to open his mouth and stick out his tongue. He did and the accused slapped [BB] to the bottom of his chin forcing him to bite his tongue. She punched him twice to the chin. She demanded to know why the complainant stared at her. [DD] became involved at this stage. He grabbed the complainant from behind with both hands to his biceps and lifted him off the ground. [DD] shook the complainant back and forwards aggressively for about 10 seconds. He asked the complainant "are you gonna answer [AA]? The complainant said "no". [DD] shook the complainant again for another 10 seconds before putting him on the ground. The complainant was pale and crying. [EE] tried to intervene. [DD] picked the complainant up again and shook him a third time. [EE] demanded that [DD] put the child down which he did. [Count 5 on the indictment - recklessly inflict grievous bodily harm in company]
Shortly afterwards the complainant collapsed on the ground and started shaking on the ground. The two accused told [EE] not to call an ambulance and they put the child into a shower. After a short time the two accused came out and the complainant was walking. [AA] said he was faking and that he had asked to go to bed. [EE] observed that the complainant was very pale. [AA] told [CC] that the child was sleeping outside tonight. [DD] put a pillow and blanket outside and the child was made to sleep outside for some time before [EE] told his mother to bring him back inside the house and put him to bed.
On 26 May 2014 [EP] again attended the premises. He was told by [BB]'s mother that they were planning to move to the Newcastle area. [EP] noticed that the complainant had bruising and swelling to both eyes and to his forehead. He took the child to Mount Druitt hospital. Medical Evidence
[BB] was examined and a CT scan performed. The complainant was found to have a right sided subdural haematoma. Amongst other injuries the complainant was found to have a 4 x 4 cm bruise to his right forehead. He had bilateral bruising and swollen eyes. He had a missing tooth, a laceration to the right side of his mouth, a 3 x 4 cm bruise behind his right ear and a bruise to his lower chin. He was transferred to Westmead hospital where he was referred to the Child Protection unit.
[BB] was examined by Dr Anna Stachurska. She provided an interim report dated 28 May 2014 and a final report dated 26 June 2014. The child presented with multiple injuries. He had multiple bruises across the right middle and left forehead of different sizes. There was a bruise on his left temple and an area of boggy swelling over the forehead descending onto the nasal bridge and the eyelids. There were bruises to both cheeks and along the outer rim of his right ear and on his left jawline. He had superficial abrasions to his mouth, lip and chin. It is the Crown case that these injuries were inflicted during the last two incidents. An x-ray revealed that the child had a fracture to the left radius and ulna, a fracture to his foot and fractures to his 6th and 7th rib.
The complainant also had an infected laceration to the back left side of his head. According to Dr Stachurska this injury likely involved blunt force trauma. It is the Crown case that this injury was caused by the fall from the freezer.
He had bruising to his spine, and an abrasion to his right lower thoracic area. He had a bruise over his left lateral buttock in an irregular shape of about 3 x 2cms. There was bruise on his right lateral buttock. He had ill-defined areas of bruising to his right thigh [total area of 9 x 6cms] and he had bruising to the back of his left thigh [approximately 10 x 6cm] There were two parallel pink/reddish marks over the posterior aspect of the right thigh that appeared to be a continuation of a faint pink mark on the left thigh. He had bruising to his shins.
A CT scan and MRI were performed on the complainant. Of significance was significant subdural bruising. [BB] had: 1. An extensive and relatively thin right hemispheric subdural haematoma; 2. A thin subdural collection (likely haematoma) around the left frontal and occipital poles 3. A thin subdural collection likely haematoma overlying the sella and clivus; and 4. A subdural haematoma around the posterior aspect of the lumbosacral spinal canal.
In the opinion of Dr Stachurska, [BB] sustained bilateral intracranial bleeding in multiple locations. Such injuries were consistent with a shaking injury. Dr Stachurska also noted that the complainant had compression fractures of his thoracic vertebrae from T4 - T5. Such fractures are consistent with hyperflexion and hyperextension of the neck which is a common feature of a shaking injury.
There was evidence also of an impact injury associated with the right side of the complainant's head. This is consistent with a high energy impact to the right side of the complainant's head. It is the Crown case that this injury occurred on the night of 24 May 2014. The subdural bleeding was not however exclusively located at the impact site. The distribution of the injuries suggest a shearing force causes by shaking. On the Crown case the shaking injuries were caused on 25 May 2014.
[CC] initially claimed to medical staff that the injuries were the result of falls on stairs, and in an interview with police on 27 May 2014 [CC] maintained that [BB]'s injuries were the result of falls. This was not true and was contrary to the opinion of Dr Stachurska. [BB] was taken into the care of FACS.
[BB] was subsequently placed in the care of KW on 30 May 2014. Over the time he was staying with her and her husband, the complainant disclosed to her that [DD] had hit him on the bottom with a baseball bat. That [AA] would put him in a cold shower and lock him to a seat in the shower. He also said he was made to stand on a fridge and that he fell off and got a sore bump on the back of his head.
[EE] made a statement to police on 16 June 2014. [CC]
On 16 September 2014 police attended the home where the accused and [DD] were living. [CC] was also staying there in a converted garage. [CC] was arrested. In an interview commencing at approximately midday she told police that she was "sticking to" her account that [BB] had fallen down stairs. She also told police that on or about 24 May 2014 [AA] had told her that she had to leave the house because of [BB]'s behaviour, including swearing. She continued to deny that any person in the house had assaulted [BB]. After the interview she was charged with offences. She then advised police that she wanted to "tell the truth".
In a second interview at about 7:30pm on 16 September 2014, [CC] told police that the injuries had occurred over a two week period whilst the child was living at the address in Blackett. She described the incidents alleged in the indictment against each of the accused (other than Count 5). She told police that she had agreed with the two co-accused to maintain that the injuries related to accidental falls. She admitted that she had also hit [BB] with a belt on an occasion when he had a tantrum because he wanted to leave the house and she had told him they could not leave until she had more money. It is anticipated that [CC] will give evidence in accordance with her second interview on 16 September 2014 when called at the accused's trial.
On 12 June 2015 [CC] pleaded guilty at Penrith Local Court to offences of exposing a child under 7 to danger of serious injury contrary to s.43 of the Crimes Act; concealing a serious indictable offence contrary to s.316 of the Crimes Act; and assault occasioning actual bodily harm contrary to s.59 of the Crimes Act. She was sentenced at Penrith District Court on 16 December 2015. Her effective overall sentence was 30 months with a non-parole period of 17 months, commencing on 16 September 2014. The sentencing judge allowed a discount of 25% on all sentences for the pleas of guilty, and an additional 20% discount upon the s 43 charge for her assistance to authorities. [DD]
On 16 September 2014 [DD] was arrested and interviewed by police. He said that the only injuries he observed on [BB] were those occasioned in ordinary play, and a 'black eye' from [BB] falling down the stairs. He did not see the stair fall but [CC] told him about it. He denied assaulting [BB] in any way or having any knowledge of how the injuries were inflicted upon him.
On 23 May 2016 [DD] pleaded guilty in the District Court to six charges with respect to the complainant [BB]. His trial had been listed to commence on 30 May 2016. The charges to which he pleaded guilty were as described above, aside from the charge relating to the Dettol (Count 2 on the present accused's indictment). On 19 October 2016 he was sentenced to an aggregate sentence of 16 years imprisonment with a non-parole period of 12 years to date from 16 September 2014. The indicative sentence for the charge of recklessly inflicting grievous bodily harm in company, relating to the shaking of the child, was six years and 3 months with a non-parole period of 3 years six months. The sentencing judge gave a 12% discount for the offender's plea of guilty which was indicated prior to trial.
On 1 November 2016 [DD] spoke with investigating police and told them that he wished to provide a statement and give evidence with respect to the matters to which he had pleaded guilty. He also said that he was intending to seek leave to appeal the severity of his sentence. On 9 November 2016 an electronically recorded statement was taken from [DD] in which he adopted as true the statement of facts upon which he had pleaded guilty, which implicated both himself and the accused [AA] in offences against the complainant in the circumstances alleged by the Crown and said that he would be prepared to give evidence about those events. The accused
On 27 May 2014 the accused [AA] was interviewed by police. She said that nothing unusual had happened the previous morning and that [BB] was walking around eating an apple. She said that [CC] was not a particularly good mother but she had never seen her smack [BB]. She said that [BB] had bruising on his face from falling down the stairs on the previous Thursday. She had not seen it happen but when she came home from shopping [CC] had told her it had happened. She said that if she suspected that [CC] was hurting [BB] she would have contacted DOCS herself. She said that when she came home on Sunday night [BB] was standing by the fridge and she assumed in some sort of time out, but she did not pay much attention because she was very tired herself.
On 16 September 2014 the accused [AA] was arrested at her home and interviewed in relation to the injuries to the complainant. She said that she recalled that she had suggested to [CC] on Sunday 25 May that she should take [BB] to the doctor because his balance was off, but she had forgotten this when she spoke to police on 27 May but otherwise she maintained her account from that day. Although she said there was a fading bruise on the left side of [BB]'s face which she attributed to the fall down the stairs, she denied seeing the extensive injuries described to her by police on [BB] before he left on Monday 26th May 2014. The accused denied that she had committed any assaults upon [BB] and also stated that she had not seen any other person hurt or harm [BB] while he was living at her house.
Police obtained warrants to intercept the telephone numbers associated with [CC], the accused [DD] and the accused [AA] between 11 July 2014 to 23 September 2014. A number of telephone calls were recorded. The accused made no admissions to assaulting [BB] during those calls.

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Cases Cited (17)