1 I have had the advantage of reading in draft the reasons for judgment of Neave JA. They very largely explain why I joined in the orders made on 23 September 2010.

2 I add only the following. In this Court, counsel for the applicant conceded that it had been open to the jury to find each element of the offence of recklessly causing serious injury proved, other than the requisite mental element.

3 There had to be a finding about what happened in order that the jury could consider whether the requisite mental element was proved. With respect to that matter, the Crown's position below and before us as to the relevant factual substratum was inconsistent.

4 In this Court, counsel for the Crown submitted that the necessary inference which explained the jury's verdict was that the applicant had not tested the water before directing it onto her daughter.

5 If the alleged lies and other post-offence conduct relied upon by the Crown in proof of guilt enabled a finding that the applicant had directed the water onto her child without first testing it, I cannot accept that the mental element as described by Neave JA was capable of being made out.

6 At trial, however, the prosecutor argued that the applicant had tested the water, and found it to be hot, before directing it onto her daughter. This argument was advanced although the prosecutor volunteered that the evidence would not support a conviction for intentionally causing serious injury; and the jury was so directed.

7 Questioned about the approach taken below, counsel for the Crown submitted that the concession had, perhaps, been made wrongly.

8 If the lies and other post-offence conduct enabled a finding that the applicant

had first tested the water, and found it hot, it may be that the jury could have concluded that the offence of intentionally causing serious injury was made out. But that offence had been taken away. I consider that it would have required impermissible mental agility for the jury to have concluded that the applicant had first tested the water and had found it to be hot - on the one hand not so hot as to enable a conclusion that the applicant intended her daughter to be injured, but on the other hand sufficiently hot for the applicant to have been aware that it was probable or likely that her daughter, when exposed to it, would suffer serious injury.

9 The applicant, Olga Ignatova, was presented in the County Court on one count of intentionally causing serious injury to her daughter, Tara Shirname. After all of the Crown witnesses had given evidence, counsel for the Crown volunteered that there was no evidentiary basis for Ms Ignatova's conviction of that offence, but submitted that the alternative count of recklessly causing serious injury should be left to the jury. He said that 'even then that's a fairly high hurdle to jump in this case' though 'it's not impossible'. The learned trial judge directed the jury to acquit Ms Ignatova of intentionally causing serious injury but she was convicted of the alternative count. After hearing a plea in mitigation of sentence, the judge sentenced the applicant to three years and six months' imprisonment, with a non-parole period of nine months.

10 The applicant appealed against the conviction, on the sole ground that the verdict was unsafe and unsatisfactory, and against the sentence, on the ground that it was manifestly excessive. On 23 September 2010, the Court made orders quashing the conviction, setting aside the sentence imposed, and directing that a judgment and verdict of acquittal be entered. These are my reasons for joining in that decision.

11 The applicant and her former husband Parag Shirname were involved in

acrimonious Family Court proceedings and were not speaking to each other. Family Court orders provided for each of them to care for Tara, who was then four years old, on alternate weeks. On Friday, 7 December 2007, they met for the weekly handover in the car park of a fast food chain. When Tara went to her father, the applicant gave him a note which said:

Parag, Tara had upset stomach Tuesday and made potty in her pants at night she got rash on bottom same as before. She has seen doctor, she got cream antibiotic, had blood and pee test and referral to the Royal Children's Hospital. Please take care of her and make sure she is clean and healthy.

12 Mr Shirname saw that the child was distressed and in pain, and took her to a general practitioner, Dr Kamahl Mansour, who was unable to fully examine her because she was upset. He considered that she had been burnt and advised that she should be taken to the Royal Children's Hospital. After a short examination by Dr Helen Cooke, Tara was examined by a forensic paediatrician, Dr Maryanne Lobo, who undertook a lengthy examination of Tara and diagnosed her as suffering from burns on her left side, the outer lip of her labia majora and in her perianal area and on the inner aspect of both thighs. As a consequence the police were alerted. Dr Michael Ee, the paediatric surgery registrar, was called by Dr Lobo to examine Tara and also thought she had been burnt.

13 The applicant was interviewed by the police on 8 December 2007. She denied burning or scalding her daughter either deliberately or accidentally and said that the injuries were the result of Tara's skin condition and her having soiled herself while asleep. She denied being angry with Tara and explained that Tara had previously suffered from diarrhoea and skin rashes. She said that after her daughter woke up she had put her in the bath to clean her and turned on a shower attachment hose to wash her bottom. The following questions were asked and answers given:

A: When I put her in the bath, the bath is empty. There's no water in the tub.

Q: Mm. But when you're holding the hose on her, well, the shower hose - - -?

A: When I'm holding the hose, I switch on the cool water first - - -

Q: Mm.

A: And she starts complaining, 'It's too cold for me. I can't take a bath in this water.'

Q: Mm'm.

A: I'm saying, 'Just hold on a second. Let the water - let the warm water come back'. So when the water comes, she test it first with the hand. I test it myself with the hand and then she test it with her hand. 'Yeah, this is nice. This is good water'. So then only after that I give her a bath. Only after that I wash.

Q: Right. This is Tuesday morning, though, I'm talking about. Is it possible that too much hot water came out and that's how she's ended up with these burns and it's got nothing to do with the poo?

A: No, it's not possible. It's not possible because I know for sure ... the water even touch her, I have made sure exactly that this is the very lukewarm water temperature. Not cold but little - not hot but comfortable for her not to start - not to start panicking about it. Cool ... giving her a cool bath.

Q: Mm'm.

A: She don't like cold. She likes warm baths. And I have enough of her panicking with - with the poo thing and I didn't - I don't want to have any panicking with her of Mum giving her a bath in the cool water.

14 The applicant said that she had previously taken the child to see a dermatologist, Dr Michael Webster, to treat her for hair loss. She said that she had a previously scheduled appointment to see him the day after the new injuries appeared. Dr Webster gave her a letter to take to the hospital in which he said that Tara had a 'very suspicious burn'. She did not go to hospital that day and instead treated her daughter herself with Vaseline. The next day, after attending a court hearing, she took Tara to see a general practitioner, Dr Ashan Mohammed Hussain, and requested investigation of the child's abdominal condition because she had wet herself and lost control of her bowels on a number of occasions and was not gaining weight. Dr Hussain ordered blood and urine tests and had also given her a referral to the Royal Children's Hospital.

15 Initially the Crown case was that Ms Ignatova had intentionally burned the child by directing very hot water at her with a shower hose. The Crown led evidence from Tara's father and from Dr Hussain, Dr Webster, Dr Mansour, Dr Ee, and Dr Lobo. All of the doctors except Dr Hussain said that the injuries were burns. Dr Hussain said that he had accepted the history that Ms Ignatova had given him and treated Tara for a skin condition caused by soiling. He had only had a glimpse at the girl's groin area and had not been able to get her to remove her underpants.

16 Dr Webster said that when he saw Tara on Wednesday, 5 December 2007, he told the applicant to take Tara to the Dermatology Outpatients' clinic at the Royal Children's Hospital. When he followed up with the Paediatric Dermatology Registrar that evening, he was told that the applicant had not visited the clinic. He spoke with the applicant over the telephone the next morning but was told that she was on her way to court and that she would call him back. He said that she did not call him back.

17 The Crown's main witness was Dr Lobo. She said that the redness on Tara's left side and the blistered lesion just above her left hip were caused by superficial burns. The lesions on her labia majora and near her anus were partial thickness or second degree burns. There were also superficial burns which looked like splash marks on the inner aspect of both thighs.

18 Dr Lobo's evidence was that the lesions had been caused by scalding with a hot liquid, while Tara was bent over. It was likely that the water had been poured on her anus and had swept across her labia, then splashed outwards to her thighs, and trickled into her left groin. She said that it was difficult to date the injuries based on their appearance but that the injuries were likely to be 'at least two to three days old if not longer'.

19 A colposcopy, a procedure to examine a magnified area of the genitalia, was conducted by Dr Lobo for the purpose of determining whether Tara's burns extended inside her genitalia. A DVD recording of that procedure and various photographic stills from the DVD recording were tendered during the examination-in-chief of Mr Shirname. Diagrams depicting Tara's injuries were also tendered.

The amount of water poured would have been small because the person pouring it might have - you know, realised that the person - that the child was in agony when the water was poured and so the amount was stopped.

21 She was then asked by defence counsel whether she was postulating that it was an unintentional injury and she said the injury could have been either deliberate or negligent, but that was not a matter for her to decide.

22 In re-examination Dr Lobo was asked about the temperature of the liquid which had been applied to the girl's body and she said:

So at 65 degree centigrade, which is well below the boiling point of water, which is 100 degrees centigrade, it means only one second of contact with the skin to cause a burn. So it doesn't take very long to cause burns using hot liquids, just one second at 65 degrees centigrade to cause a burn.

23 Shortly after she finished giving her evidence, the Crown conceded that there was insufficient evidence to go to the jury on the count of intentionally causing serious injury.

24 The defence case was that the lesions on Tara's skin were caused by a dermatogical condition or that the child might have coeliac disease, which could cause skin lesions. Dr Ronald Rosanov, a dermatologist, who had not examined Tara, but had seen photographs taken by Dr Lobo, was called as a witness for the applicant. Dr Rosanov had many years practical experience, but was aged 82 when he gave evidence and had some difficulty in recalling the material which he had seen before giving his opinion as to the cause of the injuries. Dr Lobo was recalled and Dr Rosanov's opinion was put to her. She vigorously rejected the view that the injuries could have been caused by coeliac disease or some other skin condition.

25 In his closing address, counsel for the Crown relied on the medical evidence that the injuries were caused by burns and told the jury that the Crown case was that Ms Ignatova 'realised that she would probably cause serious injury to the girl but went ahead and did what she did'. He also relied on the fact that the applicant lied in her note to her husband and in her police interview, by saying that the injuries were due to nappy rash, caused by contact with faeces and were the same kind of lesions for which the child had previously been treated. She had also lied by telling the police that she had tested the water before she hosed the girl and it was lukewarm. These lies and the applicant's failure to follow up the referrals by Dr Webster and Dr Hussain were said to be post-offence conduct indicating consciousness of guilt for having committed the offence.

26 Defence counsel's closing address focused largely on the question of whether the jury could conclude that the injuries were burns at all.

27 Ms Ignatova could only be found guilty of causing serious injury recklessly, if the Crown proved that when she used the shower hose to clean her daughter, she was aware that it was probable or likely that this would cause the child serious injury.[1] Knowledge that serious injury was merely 'possible' or 'might' occur would not have been sufficient for conviction of this offence.[2]

28 Counsel for the applicant conceded that there was sufficient evidence to permit the jury to conclude beyond reasonable doubt that Tara had been scalded when her mother cleaned her to remove faeces. However he submitted that the conviction was unsafe because the Crown had conceded that there was insufficient evidence to support the count of causing serious injury intentionally. In the circumstances of this case, the jury could not have concluded beyond reasonable doubt that the mental element required to prove the applicant guilty of the offence of recklessly causing serious injury had been established.

29 Although the evidence might have been sufficient to justify the applicant's conviction for negligently causing serious injury, there was no basis on which the jury could conclude beyond reasonable doubt that the applicant knew or believed the water was so hot that it would probably injure her daughter.

30 In support of that submission, counsel for the applicant relied on Dr Lobo's evidence that only a small amount of water would have been sufficient to cause the injury and that water well below boiling point could cause skin to burn after a second of contact. He also relied on Dr Rosanov's evidence that young children had sensitive skin and that Tara had previously suffered from skin conditions.

31 There was little evidence, apart from the answers given by the applicant in her police interview, as to the operation of the shower head attachment from which the hot water had allegedly been poured. Counsel also submitted that there was no evidence as to any motive which Ms Ignatova could have had for injuring her daughter, and all the evidence indicated that she was a loving and conscientious mother.

32 Counsel for the Crown contended that the applicant's guilt for the offence could be inferred beyond reasonable doubt from the severity of the burns and the inferences to be drawn from her note to Mr Shirname, her false answers in the police interview and her failure to take Tara to the Royal Children's Hospital, despite the referrals from Dr Webster and Dr Hussain. In support of his submission that the conviction should not be set aside as unsafe, he relied on Hayne J's statement in Libke v The Queen[3] that

the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[4]

33 Although there might have been alternative explanations for the applicant's post-offence conduct, which were consistent with the applicant's innocence, counsel submitted that this was not a case in which the jury must have entertained a doubt about the applicant's guilt. While the jury might have considered that the applicant lied to her husband and the police for reasons other than her commission of the offence (for example her fear that her husband would rely on the child's injury in the Family Court proceedings), they were not obliged to take this view.

34 A trial judge cannot direct the jury to acquit an accused of an offence simply because the evidence appears to be tenuous or weak.[5] Thus, in the circumstances of this case, it was not inappropriate for the judge to leave the count of recklessly causing serious injury to the jury.

35 The test to be applied in deciding whether a conviction is unsafe or unsatisfactory was set out by Maxwell P in R v Klamo:[6]

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[7]

36 In my opinion it was not open to the jury to be satisfied beyond reasonable doubt that the applicant recklessly caused serious injury to her child. In R v Campbell[8] this Court said that 'it is possession of foresight that injury probably will result that must be proved'.[9]

37 The Court in Campbell referred to R v Crabbe,[10] a case involving a murder conviction, and R v Nuri,[11] a case concerning, among other things, a count of conduct endangering life, as authority for the proposition that it was insufficient to satisfy the mental element of the relevant offence to show that the accused foresaw that there was a possibility that injury might result. In Nuri, the court cited Crabbe in support of the proposition that conduct is reckless if the accused foresees the probable consequences of the action and 'displays indifference as to whether or not those consequences occur'.[12] However, in Crabbe, the High Court said that reckless indifference was not an element of the mental state necessary for murder: 'It is not the offender's indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element'.[13]

38 Thus, the jury could only convict the applicant of recklessly causing serious injury to the child if they were satisfied beyond reasonable doubt that the applicant tested the temperature of the water and foresaw the probability that it was so hot that the child would be burnt when she was cleaned. But if the applicant had tested the water and knew that it was too hot, then the count of intentionally causing serious injury should not have been withdrawn from the jury.

39 A number of inferences about the applicant's state of mind could have been drawn from the fact that the child was burnt when the applicant used the shower hose to clean her. Ms Ignatova might have negligently failed to test the temperature of the water. She might have tested it and mistakenly considered that the temperature was not hot enough to burn the child. She might also have tested the water but not foreseen the possibility that a change in water pressure would increase its temperature so that the child would probably be burnt. All of these hypotheses would have supported the mother's conviction for the offence of negligently causing serious injury, but not her conviction for recklessly doing so.

40 Because of the multiple inferences arising from the fact that Tara was burnt when her mother used the shower hose to clean her, the jury could only have speculated about the applicant's mental state at the time that the child was scalded. The jury did not see or hear from witnesses whose evidence could have assisted them to resolve the doubt about the applicant's mental state. There was therefore no basis for the conclusion that the applicant foresaw the probability that the child would be injured when she cleaned her. In other words it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of recklessly causing serious injury.

41 At the trial the Crown relied on the applicant's lies and her failure to take the child to hospital, as circumstantial evidence of her guilt. On appeal, counsel for the applicant did not submit that the jury had to be satisfied beyond reasonable doubt that the applicant's false statements were deliberate lies, which constituted an admission of guilt.[14] Although it is not now necessary to decide the issue, I would have accepted that submission had it been proffered. Because there was no other evidence from which the applicant's state of mind could be inferred beyond reasonable doubt, reliance on her lies and other post-offence conduct was 'an indispensable link in the chain of evidence necessary to prove guilt'[15] and not simply part of the body of circumstantial evidence on which the jury could rely to reach its

conclusion.[16] The jury could not have concluded beyond reasonable doubt that the applicant lied to her husband and to the police because she was conscious of her guilt for having committed the offence. There are other reasons why she might have done so. She may have lied because she was ashamed that she had negligently injured the child and feared that this would disadvantage her in the Family Court proceedings. She had been brought up in Russia, in a different cultural context, and may have feared what would happen if she told the truth to the police.

42 So far as the failure to seek further medical assistance is concerned, the fact that the applicant was required to attend court on 6 December 2007 (the day after she took the child to see Dr Webster), was not contested. While the failure to follow up Dr Webster's referral to the Royal Children's Hospital raises some suspicion, the applicant did not ignore her daughter's injury, but took her to see both Dr Webster and Dr Hussain following the injury. For these reasons, I do not consider that the jury could have concluded beyond reasonable doubt that the applicant's failure to take her daughter to the hospital amounted to an admission of guilt for the offence of which she was convicted.

43 These are my reasons for considering that the application for leave to appeal should be granted, the conviction quashed and a verdict of acquittal be entered.

44 I have had the advantage of reading, in draft, the reasons for judgment prepared by Neave JA. Those reasons explain why I joined in the order allowing this appeal.

[1] R v Crabbe [1985] HCA 22; (1985) 156 CLR 464; R v Sofa (Unreported, Court of Criminal Appeal, Crockett, O'Bryan and McDonald JJ, 15 October 1990).

[2] R v Crabbe [1985] HCA 22; (1985) 156 CLR 464; R v Campbell [1997] 2 VR 585; R v Nuri [1990] VicRp 55; [1990] VR 641.

[3] [2007] HCA 30; (2007) 230 CLR 559.

[5] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 214. This applies even where the judge considers that a verdict of guilty based on the evidence may be unsafe and unsatisfactory: R v R (1989) 18 NSWLR 74.

[6] [2008] VSCA 75; (2008) 18 VR 644.

[7] Ibid 653-4. Maxwell P cited M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451-2 (Gaudron, McHugh and Gummow JJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316; R v Tiburcy [2007] VSCA 124, [5] (Nettle JA).

[8] [1997] 2 VR 585 ('Campbell').

[9] Ibid 592 (Hayne JA and Crockett AJA), see also 586 (Phillips CJ).

[10] [1985] HCA 22; (1985) 156 CLR 464 ('Crabbe'), 469-70.

[11] [1990] VicRp 55; [1990] VR 641 ('Nuri').

[12] Ibid 643 (Young CJ, Crockett and Nathan JJ).

[13] [1985] HCA 22; (1985) 156 CLR 464, 470. The court disapproved statements made by Barwick CJ in Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 118-21, cf McTiernan and Menzies JJ (at 127, 135), and by Stephen J in La Fontaine v The Queen (1976) 136 CLR 62, 85-6, cf Gibbs and Jacobs JJ (at 75-7, 94-100) to the effect that, at least in the case of murder, it was sufficient to show that the accused foresaw the possibility of death or serious injury.

[14] R v Franklin [2001] VSCA 79; (2001) 3 VR 9, 31-2 (Brooking JA).

[15] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 210 (Deane, Dawson and Gaudron JJ).

[16] See R v Ciantar [2006] VSCA 263; (2006) 16 VR 26, 40 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA).