ORDER Appeal allowed - conviction and sentence quashed and charge dismissed.

JUDGE1 MULLIGHAN J The appellant was convicted in the Magistrates Court on 27th April 1993 of assault occasioning actual bodily harm. The particulars of that offence are that between 1st and 31st March 1992 he assaulted a young girl aged two years and five months, thereby causing injuries to her face and head. He denied the charge and appeals against the conviction. There is no appeal against the sentence of imprisonment for eight months which sentence was suspended, although it follows that if the appeal succeeds the sentence must be quashed. 2. This is an unusual case. At all relevant times the appellant was aged 24 years. He met the mother of the child in late 1991 and after a brief relationship commenced to live with her in late February 1992 in a house at Ingle Farm. She was aged 22 years. I refer to her as "the mother". She had previously separated from her husband, who is the father of the child, and there were proceedings between them in the Family Court of Australia relating to the child. The relationship between the appellant and the mother lacked stability and maturity. The appellant gave up a stable position in the Royal Australian Air Force to be with her even though he had known her for only a brief period of time. The learned Special Magistrate described them, and their relationship, as follows:- "I first consider (the mother's) evidence, she being the principal prosecution witness. It is, in my view, evident that she has an unstable personality. Her behaviour, on a number of occasions, throughout her relationship with Mr Sandell, was erratic and irrational. I understand that, on at least one occasion, she has received treatment for psychiatric problems and my observations of her were that she is certainly a highly emotional person. This is however, a highly emotional matter. It is agreed that (the mother) and Mr Sandell had a relationship, basically of a defacto type, for a period of approximately four months and culminating soon after these events. The (child) was, at most times, in the custody of (the mother) and formed part of the household. The parties were apparently both highly emotional and to some extent unstable young persons. Mr Sandell I accept, was infatuated by (the mother) and she appears to have encouraged him, until late 1992, in his infatuations. I cannot say that there was any deliberate manipulation by her however, she appears to have been fickle in her emotions. My short observation is that the emotional interaction between these two young persons was emotionally disastrous to them." 3. The child lived with the appellant and the mother. She was in good health and without injuries during the evening of Sunday, 8th March 1992. The next morning she had injuries to her face. Those injuries were plainly visible and seen by other witnesses during the following week. There can be no doubt that the child was assaulted and sustained serious injuries, despite attempts at the trial by the appellant, and to a lesser extent the mother, to explain away the injuries by possible accidental causes. Also, the evidence clearly established that the child was assaulted and injured whilst living with the appellant and the mother. There was no suggestion that she was assaulted by someone other than the appellant or the mother, and the evidence established that there was no opportunity for anyone else to have done so. 4. The evidence against the appellant was that given by the mother and evidence of admissions made by him. The learned Special Magistrate correctly described the mother as the principal prosecution witness. He found that she was not an impressive witness and was unreliable. She too had been charged with the offence but the charge had been withdrawn shortly before the trial was to commence and she gave evidence for the prosecution. The conclusions of the learned Special Magistrate concerning the mother which I have mentioned must be steadily kept in mind when considering the evidence given at the trial and the allegations against the appellant. What must also be kept in mind is the conclusion of the learned Special Magistrate that both the appellant and the mother were both highly emotional during their relationship, were "to some extent unstable young persons" and that the appellant was infatuated by her. In assessing the evidence of each of them and the reliability of statements which they have made, great caution is necessary. 5. I briefly mention the circumstances relevant to the charge. The appellant and the mother slept in separate bedrooms on the night of 8th and 9th March 1992. In the early hours of the morning the child was crying. The appellant got out of bed, went to her bedroom and attended to her. According to him, she was leaning off her bed and was partly on the bed and partly on the floor. He picked her up and comforted her. She did not stop crying so he took her into the mother who was in bed asleep. He did not turn on any lights. There was sufficient natural light shining through the window of the mother's bedroom to enable him to see what he was doing. He did not see any signs of injury on the child. He had difficulty in waking the mother but eventually he did so and gave the child to her. He returned to bed and went to sleep. The next morning the mother called him and pointed out injuries to the child. Her left eye was bruised and swollen and there was a lump in the middle of her forehead. There was no apparent injury to the right eye. The appellant and the mother discussed what they should do and decided that medical treatment was not necessary. According to the appellant, he told the mother what he had seen the previous night. If this description of the events so far is accurate, and there is no evidence to the contrary, the injuries to the child could have been caused accidentally or by an assault committed by the appellant or by the mother. 6. On that Monday, the appellant and the mother took the child to the Zoo. According to the appellant, she seemed happy and contented and did not display any reaction to her injuries. The swelling around the left eye had increased. Later in the day ice was applied to it. According to the mother, the child seemed normal except the eye had developed into "a full blown black eye". The following day the bruising appeared across the bridge of the nose. On that day, Tuesday, the appellant and the mother took the child with them when they visited the appellant's mother. Photographs were taken of the injuries because the appellant's brother had suffered an apparently similar injury when he was a young child which had been photographed. The photographs taken of the child were admitted into evidence. They reveal substantial swelling and bruising of the left eye, some bruising and swelling of the bridge of the nose and some bruising adjacent to the nose near the right eye. Following discussion with the appellant's mother an appointment was made to take the child to the All Care Medical Centre at Prospect the next morning. On the Wednesday, Dr. Jones saw the child in the presence of the appellant and the mother. He was told that the child had fallen almost three days previously and hit her forehead. He observed that the left eye was very swollen and the wounds were contused. There was no injury to the eye itself. He did not note any abnormality to the right eye or right side of the face and, according to him, there was no bruising of, or near, the right eye or right cheek or a scratch below the right eye. That is a matter of considerable importance because the child had severe injuries to both eyes and both upper cheek areas when seen at the Adelaide Children's Hospital the next day. Dr. Jones was aware of his obligation under legislation to report assaults on children and even suspicion of non-accidental injury. He entertained no suspicions as to any of the injuries which he saw and he considered that they were consistent with the explanation given to him by the appellant and the mother, of the child falling out of bed, however, he did acknowledge that he had not previously had any experience with child abuse. He did not examine the left ear, wrist and chest of the child. The next day Dr. Raftos observed injuries in those locations. Dr. Jones did not make any report to the authorities and he did not consider that any treatment was necessary. 7. According to the appellant, the area around the right eye of the child began to swell on the Thursday. The appellant and the mother went out with the child in the morning. They had a dog in their motor car. They eventually went to visit the appellant's mother. Other relatives were also at her home. Some of them went shopping with the appellant, the mother and the appellant's mother. The child was left with the appellant's brother and his wife. They took the child to a medical practitioner without the knowledge or consent of the appellant or the mother whilst the others were out shopping. That medical practitioner referred them to the Child Protection Service at the Adelaide Children's Hospital where the child was seen by Dr. Raftos. 8. A careful examination was conducted by Dr. Raftos. He found extensive swelling and tenderness over the forehead, swelling and severe bruising to both eyes to the extent that it was not possible to examine the conjunctivae of both eyes, a superficial scratch extending vertically down the right eye which was oozing a small amount of fluid, extensive bruising on the left side of the face with four more prominent areas, bruising behind the pinna of the left ear, bruising extending down the right side of the face, an oval bruise on the right cheek near the right ear which was suggestive of a bite mark, bruising on the right-hand part of the chest of an irregular nature and several smaller bruises towards the left of the chest, lesions on the back, a bruise over the lower spine, bruises on the back of the left-hand and wrist, a lesion and a small laceration on the inner part of the mouth on the left side. The child was admitted to the hospital and was treated by Dr. Raftos. X-rays and a CT scan revealed that there was no bony damage. She was discharged on 23rd March 1992. He saw her again on 2nd April 1992 when he observed conjunctival haemorrhages in both eyes. The appellant and the mother were upset at the action taken by the appellant's brother and his wife. They went to the Hospital and there saw Dr. Raftos. They explained the child's injuries as having been caused accidentally. They told the story of the child falling from her bed during the night of the Sunday and Monday. The mother said that on the previous Wednesday the child had ridden her bike off the back porch, on the Sunday morning she had ridden her bike down the back steps off the porch, and whilst in the motor car the dog had bumped into her. There was also the suggestion made subsequently that a ladder had fallen on the child on the Wednesday. The appellant was asked to explain the injuries to the chest and he said that the child had been scratching herself in that area on the Monday night. 9. Dr. Raftos took photographs of the child on the day he first saw her. Those photographs show extensive and severe bruising and swelling to the face in marked contrast to the photographs taken two days earlier. The contrast is so striking that it is very likely that the child had again been assaulted after the earlier photographs had been taken. The learned Special Magistrate found that there were probably two incidents when injury was caused to the child and, in my view, was correct in that conclusion. He concluded that the second incident must have occurred after Dr. Jones saw the child and before she was seen by Dr. Raftos, a conclusion which is consistent with the observations and opinions of Dr. Raftos. The learned Special Magistrate rejected that any of those injuries could have been caused accidentally, a conclusion which was fully justified by the evidence. After the examination of the child by Dr. Raftos, the police were called and commenced their investigations. The mother was greatly distressed at the child having been taken away from her. On 17th or 18th April 1992 the appellant and the mother visited a Ms. Tape. She and the appellant had known each other for some years and since he began to live with the mother they had associated with Ms. Tape with some frequency. During the evening on this occasion Ms Tape and the mother were talking alone. They began to talk about the child and the mother said she was in foster care. She became upset and went on to say that it was not the appellant's fault, she was getting him into trouble and he was going to get blamed. She referred to Jessica having been in hospital because "someone hit her". She then said that the appellant was going to "get blamed" for something she had done and then said that she had hit the child because she was being naughty and she could not handle her. She went on to say, "I have to tell the truth otherwise (the appellant) is going to go to gaol but I don't want to tell the truth". She also said that she did not want to go to gaol. 10. Detective Jenkins spoke to the appellant and the mother at their home probably on 27th March 1992. He told them of the nature of his enquiries and that he would speak to them later. The appellant was arrested on 26th April 1992 and charged with assaulting the child and occasioning actual bodily harm. He was asked if there was anything he wished to say and he replied in the negative. The mother was with Ms. Tape at this time. They learned that the appellant had been arrested and went to the police station. The mother saw the appellant and told him that she had hit the child. She also told Detective Jenkins that she had hit the child. He questioned her. She told him that she had been talking on the telephone and had then gone into the child's room and hit her across the face. The child had fallen and hit the corner of the bed. Her explanation at the trial for making this confession was that she was scared of the appellant because he had been violent towards her and had threatened her. Detective Jenkins made a report and subsequently the mother was also charged with assault occasioning actual bodily harm. The appellant had been released on bail, a condition of which was that he not contact the mother. The appellant's mother also gave evidence at the trial. She said that on the night the appellant was arrested, the mother spoke to her and told her that she had hit the child and that she intended to tell the police. The appellant's mother told her not to do so if she had not hit the child. 11. The appellant had not made any admissions about assaulting the child. The mother had been denied custody of, or access to, the child. Proceedings were pending in the Children's Court pursuant to s.12 of the Children's Protection and Young Offenders Act, 1979 concerning the alleged need of care of, or protection for, the child. Without doubt the mother was anxious about these proceedings and those in the Family Court and was distressed that the child had been taken from her care. She ceased to live with the appellant in late June 1992. 12. Despite the condition of the appellant's bail to which I have referred, the appellant and the mother saw each other from time to time. They went to Sydney in August 1992 despite the mother having obtained a restraining order against the appellant. They discussed the mother's situation whilst they were in Sydney. According to the appellant, she was affectionate towards him and said that she did not want to lose him. According to the mother, she went to Sydney with the appellant as she hoped that, in an unguarded moment, the appellant might tell her the truth of what happened to Jessica. Not surprisingly the learned Special Magistrate found the mother's explanation for the trip to Sydney unconvincing. 13. It appears that after the trip to Sydney the appellant and the mother lived apart. They met again in October 1992 in somewhat emotional circumstances. The appellant believed that she had been associating with another man who was a former Air Force acquaintance of the appellant. It is unnecessary to descend into detail of what occurred between them relating to this man. Eventually they arranged to meet at an hotel. They drank a considerable amount of alcohol. According to the appellant, the mother was again very affectionate towards him. They went to a motel and had sexual relations. According to the appellant, he understood that they were to resume living together. They discussed the situation concerning the child. The appellant decided to take the blame for the injuries to her. He agreed to make an admission and to plead guilty to the charge. He believed that he would receive a suspended sentence. He thought his taking the blame would assist the mother in her claim for custody of the child and he expected that he would resume cohabitation with the mother early in the New Year. Perusal of the evidence supports the finding of the learned Special Magistrate that the appellant was infatuated with the mother. Her evidence was that she spent the night with the appellant because she wanted to know what he would tell her. She said that she was prepared to have sex with him as a means of getting information from him. She denied that there was any discussion about the custody case or any agreement between them to the effect that the appellant would assist her by taking the blame for what happened to the child. The mother's version was, in brief terms, that the appellant would not admit to her that he had assaulted the child until after sexual relations between them. It would seem that the learned Special Magistrate did not place any reliance upon this evidence of the mother, in view of his findings as to her lack of credibility. 14. Following the night in the motel, the appellant had a telephone conversation with the mother of the child's mother. I shall refer to her as "the grandmother". She recorded that conversation by means of a cassette recorder and subsequently caused a transcript of the conversation to be prepared which was admitted into evidence. At the time of this conversation, the grandmother was aware that the appellant proposed to admit that he had caused the child's injuries. The appellant did not admit to the grandmother that he had assaulted the child. It appears from the conversation between them that they may have proceeded on the basis that he was acknowledging guilt but he does not expressly say so. As to this conversation, the learned Special Magistrate said:- "No point was taken as to whether or not there was any illegality in the recording of these conversations but in my opinion, having regard to the provisions of the legislation that is appropriate, the content of the conversations was admissible. In any event I did not understand Mr Sandell, in his evidence, to dispute that he accepted that the conversations might well be tape recorded. He did not, apparently, challenge the content of the conversations however, he did challenge the context of same. The telephone conversations are, to some extent, unsatisfactory if they are to be relied upon as constituting admissions by Mr Sandell that he hit the child .... I identified three occasions in the transcript where Mrs Jeffries has put to the defendant the fact that the defendant did hit (the child). On no occasion did Mr Sandell refute that allegation. It appears to me that it would have been expected that if Mr Sandell did not accept the proposition then he would have clearly made a denial. The general tenor of the conversations had, with Mrs Jeffries, appeared to indicate considerable emotion and remorse being felt by Mr Sandell. He was apparently experiencing guilt feelings because of certain of his actions involving (the mother) and her child." 15. I think there is another possible explanation for the emotional state of the appellant and that is that he had decided to take the blame in order to assist the mother because of his emotional involvement and infatuation with her even though he was not responsible for the child's injuries. The important question is whether the learned Special Magistrate should have relied upon this conversation and the statements made by the accused as evidence of his guilt. If he had decided to falsely accept responsibility for the child's injuries because of his emotional involvement with the mother and his hopes for the resumption of his relationship with her, it would be hardly surprising that he would have a conversation of this nature with the grandmother even if he had not assaulted the child. 16. On 5th November 1993 the appellant went to the Elizabeth C.I.B. and was questioned by Detective Sharpe in consequence of a previous arrangement which he had made with him. The questioning commenced at 8.36 am and concluded at 9.12 am. The interview was recorded on video tape which was admitted into evidence. The appellant said that he did not want his solicitor present and he agreed to answer questions even though the charge against him was pending and he received a caution in the usual terms. It is unnecessary to mention all of what was said on this occasion. It is sufficient to say that the appellant admitted hitting the child during the early hours of the Monday morning. He said that he went into her room at about 4.00 am to 4.30 am because she was crying. There had been an argument between the appellant and the mother during the previous night. He said he was not angry but when he went to calm the child he hit her with an open hand on the side of the face two or three times. He assented to the proposition that the blows were hard hits but he denied that he had caused the full extent of the injuries. He went on to say that her injuries were aggravated by a ladder falling on her and by the dog in the motor car. He could give no explanation as to why he hit her. During the course of the questioning he told Detective Sharpe of his feelings for the mother and of his desire to help her in the custody proceedings. 17. The learned Special Magistrate had this to say about this interview:- "It remains that Mr. Sandell did make a confession to the police in the course of a video recorded interview. I had the opportunity to view that interview and, although I accept that Mr. Sandell did on occasions show signs of considerable emotion and stress, the answers and information that he gave did not appear to have been influenced or motivated by anything other than a desire to tell the truth. Of course appearances can be deceiving but on the face of it his confession, as to hitting the child and apparently causing all or some of her injuries, was credible and persuasive." 18. I have also viewed the video recording. The learned Special Magistrate is not in any better position than I am in assessing the demeanour of the appellant during that interview. I agree that he showed signs of emotion and stress at times. The findings of the learned Special Magistrate as to the emotional involvement of the appellant with the mother and his infatuation with her, his desire to help her and the circumstances in which he came to make the admissions are capable of establishing a reason to make the admissions other than a desire to tell the truth. I do not agree that his confession was either credible or persuasive. He admitted to only one incident of slapping with an open hand and denied that he caused all her injuries. He proffered explanations as to how the injuries were exacerbated accidentally. The severity of the injuries could not have been caused in that way. 19. The evidence against the accused was that he had the opportunity to assault the child, that the mother said he had made admissions to her, his conversation with the grandmother in so far as it could be interpreted as an acknowledgement or admission of guilt by him, the denial by the mother that she had injured the child, there being no-one apart from the appellant and the mother with the opportunity, and his confession to Detective Sharpe. 20. The evidence of the mother has to be discounted in view of the findings of the learned Special Magistrate as to her credit. She had admitted her guilt and then withdrew her admission. She had every reason to falsify her testimony in order to implicate the appellant so as to improve her chances of regaining custody if for no other reason. The appellant had consistently denied assaulting the child until after the emotional events with the mother in August and October 1992. Once he had decided to take the blame, his acceptance of guilt during the telephone conversation with the grandmother, if that is how his conduct is to be interpreted, and his confession to Detective Sharpe, are equally consistent with his desire to assist the mother and to improve his chances of reconciliation with her as with guilt. True it is that the appellant had the opportunity to assault the child but so did the mother. This is not a case where no-one but the accused had the opportunity to commit the crime. The evidence does not permit a finding that the mother did not assault the child. The learned Special Magistrate acknowledged that some of the evidence indicated "a strong case against (the mother) as being responsible for assaulting her daughter" and, at the very least "it produces a reasonable doubt that Mr. Sandell had any liability for what occurred" to Jessica. What tipped the scales against the appellant so far as the learned Special Magistrate was concerned was his confession and his telephone conversation with the grandmother. He rejected the explanation of the appellant as to why he had made the confession. He said:- "My view therefore, is that Mr. Sandell is just not to be believed in his contentions as to any form of false confession." and he went on to say:-

"Where does that appear however, to leave the case? On the one hand there is the apparent unreliability of the main prosecution witness (the mother) and on the other hand there is the defendant who, in my view the finding must be, cannot be believed. The defendant however, bears no onus. He is not required to be believed and unless any lies that he tells can be equated with a deliberate attempt to avoid his criminality by acknowledging, in effect, his guilt then what he says must be discarded. The Prosecution, it must be emphasised again, bear the onus of proving beyond all reasonable doubt that the offence occurred and that Mr Sandell was the perpetrator." 21. The learned Special Magistrate found that there were probably two incidents when injury was caused to the child. He based that finding largely upon the disparity between the two sets of photographs as to the nature and extent of the injuries and the evidence of Dr. Jones and Dr. Raftos. He concluded that the first incident must have occurred before Dr. Jones saw the child on the Wednesday and the second incident occurred after that time and before the child was taken to the home of the appellant's mother on the Thursday. He found that the appellant assaulted the child on the occasion of the first incident which he said occurred in the child's bedroom in the early hours of the morning of the Monday. The finding was expressed in these terms:- "From all this I consider that the evidence establishes that the defendant, at least, assaulted the child on the morning of 9 March or thereabouts. On his evidence there was an incident in the child's bedroom in the early hours of the morning. On the one hand he says the child fell out of bed however, I reject that contention. On the other hand he admitted that he heard the child crying and went in, originally, to comfort her but then lost his temper and hit her a number of blows to the head and face. The defendant said that at the time he was under a great deal of stress, as indeed was (the mother),

because of the actions of (her) husband. It appears that (he) was harassing his wife and there is a possibility that the child was involved in disputes between (the mother) and her husband. This could have been a source of frustration to Mr Sandell. The defendant, it appears to me, had the motive and opportunity to assault the child. If I accept, as I do, the evidence that he admitted the offence then I consider the defendant is proven to have hit and injured the child to this extent." 22. As to the second incident he said:- "What however, is to be made as to the evidence that points to the second episode that I have mentioned above? Mr Mitchell argued that there were a number of possibilities. Either Mr Sandell further assaulted the child or (the mother) assaulted the child or they both did. Mr Sandell and (the mother) both exonerate each other from any further attack, on the child, at the relevant time. In my opinion their veracity must be questionable and that may be an indication that they both were responsible for the child's further injuries. On the other hand Mr Sandell had an opportunity to repeat his behaviour. His evidence was that he was a light sleeper however, (the mother) was a heavy sleeper and was difficult to arouse once asleep. May he not have then once again assaulted the child whilst (the mother) was asleep? Another alternative is that, whilst Mr Sandell was absent from the house on the Thursday morning, (the mother) then hit the child and further injured her. This would explain her confession to the police and to Leanne Tape. The episode she recounted, particularly to Detective Jenkins, may have occurred then. (The mother) is not on trial at this time and I do not know whether she will be further charged so I make no further findings. Mr Sandell is however, on trial but because of the possible alternative, that he was not responsible for the further assault, and because there is a perfectly credible alternative, that is, (the mother) having attacked the child, then I cannot find that, beyond all reasonable doubt, Mr Sandell did further assault the child over the approximate period of 30 hours between Wednesday morning and Thursday afternoon." 23. It may be seen that the learned Special Magistrate had to rely upon the confession and reject the appellant's evidence as to why he made the confession in order to find him guilty. Even then he could not reject the possibility that the mother had inflicted the more serious injuries to the child in the second incident. Having accepted that it was possible that she had assaulted the child on that occasion and that her confession of guilt was true, it was but a small step to accept that it was reasonably possible that she also assaulted the child in the first incident. He was correct not to make any findings of guilt against her as she was not on trial but in considering the case against the appellant, it was appropriate to have regard to the possibility that she had committed the offence. I do not think the evidence justified the conclusion that the appellant had the motive to assault the child. It is one thing to be under stress for the reason expressed by the learned Special Magistrate, but it is quite another matter to say that stress affords a motive for such serious criminal conduct. There is no basis, apparent in the transcript of the appellant's evidence, to reject as a reasonable possibility his reasons from making the confession. The learned Special Magistrate does not say that such a reason is to be found in the demeanour of the appellant in the witness box. It seems to me that the emotional state of the appellant, his infatuation with the mother, his expectations as to reconciliation and his desire to help her in the custody proceedings, are reasons for accepting his explanation as a reasonable possibility. It has been said that a confession, being a declaration against interest, is usually accepted as being probably true: Taylor on Evidence, 12th Ed., para.723 and that there is a presumption that a person will not make an untrue statement against his own interest: Roscoe's Criminal Evidence, 16th Ed. at p.38. However, even if it is correct to say that there is such a presumption, it may be rebutted by evidence and it is not to be regarded as shifting in any way the burden of proof which rests upon the prosecution. The learned Special Magistrate had to be satisfied not only that the appellant made the confession, which was not in dispute, but that the confession was true. In my view, consideration of all of the evidence and the circumstances in which the confession was made raises a doubt as to whether the confession is true with the consequence that the prosecution could not prove the charge against the accused beyond reasonable doubt. 24. I allow the appeal, set aside the conviction and quash the sentence. This is not a case which should be remitted to the Magistrates Court for retrial because the evidence could not justify a finding of guilt beyond reasonable doubt. I find the accused not guilty of the charge and dismiss the information.