R v Brendan John Riordan

R v Folbigg [2002] NSWSC 1127 Pfennig v R (1995) 182 CLR 461 R v Ellis (2003) 58 NSWLR 700 CASES CITED: R v Folbigg [2005] NSWCCA 23 R v Folbigg [2003] NSWCCA 17 Folbigg v The Queen [2005] HCA Trans 657 R v Lockyer (1996) 89 A Crim R 457 R v Martin [2002] NSWSC 332

PARTIES: DPP Brendan John Riordan

COUNSEL: M Grogan - Crown J Fliece - Accused

1 These are the reasons for my decision given on Monday the 8th May 2006 to reject the application by the accused for separate trials in respect of the charges upon which he has been arraigned, and to allow the Crown to adduce in each case evidence of the injuries suffered by the alleged victims as "coincidence evidence".

2 The accused Brendan John Riordan was arraigned before me on Monday the 1st May 2006 upon an indictment charging him with the following offences: Count One Between 6 April 2001 and 28 June 2001 at Gunnedah in the State of New South Wales, did maliciously inflict grievous bodily harm upon C R with intent thereby to do grievous bodily harm to her . Crimes Ac t 1900. Section 33 Count Two Between 20 June 2001 and 29 June 2001 at Gunnedah in the State of New South Wales, did assault A B thereby occasioning actual bodily harm to her. Crimes Act , 1 900. Section 59(1 )

Count Three On or about 9 May 2003 at Armidale in the State of New South Wales, did maliciously inflict grievous bodily harm upon T V with intent thereby to do grievous bodily harm to her. Crimes Act, 1900. Section 33 3 The essence of the Crown case is that the accused compressed the chests of each of these children, thereby causing multiple rib fractures in the case of C R and T V, and in the case of A B causing petechial bruising to her face, neck and upper chest, mild inflammation to her liver, and mild renal failure. In addition, both C R and T V are alleged to have suffered fractures to their legs at the hands of the accused, but it is the injuries to the chests of these children upon which the Crown relies for the grievous bodily harm charged against the accused.

Prohibition Against the Publication of the Names of the Alleged Victims

4 According to the statements of J B, her daughter A B was born on the 16th February 1999 and her daughter C R was born on the 6th April 2001. They are now respectively 7 and 5 years of age.

5 According to the police interview of R S V, her daughter T V was born on the 21st April 2003 and is therefore 3 years of age at the present time.

6 On the 2nd May 2006 I made orders prohibiting the publication of the names of these children, or any information that might provide the means of their identification. Strictly speaking this was not necessary since section 11 of the Children (Criminal Proceedings) Act, 1987 makes punishable the publication or broadcast of the names of the children as a criminal offence without the need for specific order of the court.

7 When the matter was first called and before the accused was indicted his counsel informed me that he wished to make an application for an order that there be separate trials in respect of each of these charges.

8 In the discussion that followed the Crown indicated its intention to offer evidence of the injuries suffered by each of the children and evidence of opinion as to how they were inflicted as "coincidence evidence" in the cases to be presented in respect of each charge. The Crown reserved it position with regard to the use of this evidence as "tendency evidence", but made clear that it might seek to do so in due course. Counsel for the accused made clear his objection to the Crown being permitted to lead either "coincidence evidence" or "tendency evidence".

9 After this initial discussion the accused was arraigned and the voir dire began with the tender of documents described later in these reasons.

10 To formalise the conduct of this application, on the 2nd May 2006 I gave leave to the accused to file in court a Notice of Motion in which he sought orders that there be separate trials in respect of each of the alleged victims, and such further or other orders as the Court deems fit. Also filed was an affidavit in support of the application sworn by his solicitor Sashi Brahmendra Shukla.

11 The nature of this matter is such that the question whether the accused ought to face his trial upon all three charges presented in the one indictment is inextricably bound to the question whether the Crown ought to be permitted to lead "coincidence evidence" as proposed. The argument has proceeded upon this premise, and although the notice of motion filed on behalf of the accused does not seek specific orders prohibiting the tender by the Crown of "coincidence evidence" the affidavit in support of the motion does make reference to some of the matters to which I must turn when considering the application of sections 97, 98 and 101 of the Evidence Act 1995. Throughout the voir dire the parties proceeded upon the premise that resolution of the question whether to severe one more of the counts will depend upon my decision with regard to the admission of the evidence.

12 There was a question in my mind as to whether I should decide the issue of severance before deciding whether the Crown should be permitted to lead coincidence or tendency evidence, however after giving the matter my consideration, and in light of the approach taken by counsel in their arguments, I came to the view that I should consider first of all whether the Crown ought to be permitted to present "coincidence evidence", including whether they should be permitted to do so in respect of all of the three charges, and then turn my mind to the question of severance.

13 If the Crown is to be permitted to lead "coincidence evidence" in respect of all three charges, it appears to me that the proper exercise of my discretion would not require the separation of any of them from the indictment. On the other hand, should the Crown not be permitted to do so, there remains the discretion to allow all charges to proceed together, subject my consideration of the prejudice or embarrassment to the accused thereby, or whether for any other reason it is desirable to order separate trials: Criminal Procedure Act, 1986, section 21(2).

14 Furthermore, it has been submitted by the Crown that if the "coincidence evidence" should not be admitted, in which case the Crown acknowledges that the third count would properly be severed from the indictment, the first two counts should be tried together because of the connection between them: Criminal Procedure Act, 1986 at section 29(1) paragraphs (b) and (c), subject to consideration of the matters provided in Criminal Procedure Act, 1986, sections 21(2) and 29(3).

15 The Crown tendered statements and reports from various medical practitioners who had attended the children, and called certain of those doctors who were required by the accused for cross-examination. The Crown also tendered the transcript of the committal proceedings. There was very little reference to that in the course of the voir dire, however I have read the entirety of the transcript tendered and shall make reference to it as may be appropriate.

16 In addition, the Crown tendered statements and transcripts of interviews with the mothers of these children. Certain passages in those documents were challenged and not pressed by the Crown for the purposes of this inquiry. They have accordingly been ignored. I should note that the attempt by the parties to obliterate those passages was not entirely successful, but make clear that even to the extent that portion of the offending text might be discoverable upon a close examination it has not been read. These witnesses were not called to give evidence in the voir dire.

17 Counsel for the accused tendered transcripts of the interviews of the accused by the police and certain documents and diagrams to which certain of the doctors referred or created in the course of their cross examination.

18 It is appropriate that I identify the exhibits tendered: Exhibit 1: (Crown at 1/5/06-15). Folder containing Doctor's statements. Exhibit 2. (Crown at 1/5/06-15). Folder containing transcript of committal proceedings of 9/9/04,10/9/04; 6/12/04; 7/12/04; 8/12/04. Exhibit 3: (Crown at 2/5/06-2). Notice pursuant to s.97 of the Evidence Act dated 27/8/04 together with Notice pursuant to s.98 of the Evidence Act dated 26/8/04. Exhibit 4: (Crown at 2/5/06-3). 5-page document dated 15/7/03. This was so described at the time of tender: the document is in fact the expert certificate of Professor Graham Vernon Vimpani Exhibit 5: (Crown at 2/5/06-39). Report of Dr. John Bear 29/10/03 re T V. Exhibit 6: (Crown at 2/5/06-39). Report of Dr. John Bear 29/10/03 re C R. Exhibit 7A: (Defence at 2/5/06-49). X-ray films of C R. Exhibit 7B: (Defence at 2/5/06-50). A3 and A4 size Ultrasound films of C R. Exhibit 8A: (Defence at 2/5/06-51). 13 X-ray films of T V. Exhibit 8B: (Defence at 2/5/06-52). 3 Ultrasound films of T V. Exhibit 8C: (Defence at 2/5/06-52). 2 CT films of T V. Exhibit 9: (Crown at 3/5/06-72). Statement of Dr. David Breusch 14/5/03 formerly MFI-1. Exhibit 10: (Crown at 3/5/06-76). Statement of Dr. D. T. McDonald 189/7/01. Exhibit 11: (Crown at 3/5/06-77). Statement of Dr. D. T. McDonald 19/7/01 re: A B. Exhibit 12: (Defence at 3/5/06-91). Bundle of documents, copy medical record of Tamworth Base Hospital. Exhibit 13: (Crown at 3/5/06-103). Statement of J B 3/12/03. Exhibit 14: (Crown at 3/5/06-103). Statement of J B 10/6/03. Exhibit 15: (Crown at 3/5/06-105). Record of interview of R S V 11/5/03. Exhibit 16: (Crown at 3/5/06-114). Transcript of electronically recorded interview between Police and the accused 16/8/01. Exhibit 17: (Crown at 3/5/06-114). Transcript of electronically recorded interview between Police and the accused 29/6/01. Exhibit 18: (Crown at 3/5/06-115). Transcript of electronically recorded walk around on 11/5/03. Exhibit 19: (Crown at 4/5/06-123). Statement of Dr. K. M. Power of 12/5/06. Exhibit 20: (Defence at 4/5/06-129). Diagram by Dr. K.M. Power re: bruising to the chest of T V. Exhibit 21: (Crown at 4/5/06-138). Statement of Dr. M. Young 4/2/04. Exhibit 22: (Defence at 4/5/06-152). Report of Dr. M. Young of 17/7/01 re: C R upon the CT imaging of her brain.

19 The voir dire continued until the 5th May 2006, and after submissions from the parties speaking to their written submissions I reserved my decision until the 8th May 2006.

20 At the request of counsel for the accused, those written submissions have been marked for identification. The defence submissions were marked for identification 4 and the Crown submissions marked for identification 5.

21 Counsel for the accused also raised the proposition that the medical practitioners to be called by the Crown should not be permitted in the presence of the jury to use the words "non-accidental" when expressing their opinions regarding the injuries they observed in these children for the reason that the expression implied intentional conduct by some person, a question that was ultimately for determination by the jury and one that was beyond the expertise of those witnesses.

22 On the 8th May 2006 I made orders 1), 2) and 3) hereunder, and noted item 4): 1) The application by the accused that there be separate trials in respect of each of the three counts appearing in the indictment upon which the accused has been arraigned before me is rejected;

2. I propose to allow the Crown in respect of each of the charges contained in the indictment, to adduce as "coincidence evidence" evidence of the injuries sustained by each of the alleged victims C R, A B, and T V, and as to the means by which those injuries were sustained, but with the qualification that the medical practitioners from whom this evidence is to be led shall not be permitted to express an opinion as to whether the injuries sustained were inflicted by the intentional application of force by any person;

4. I note that the Crown has reserved its position as to the use it might wish to make of this evidence as "tendency evidence" and I have accordingly put that question to one side.

23 When clarification was sought by the Crown in relation to the second order made I confirmed that I would allow evidence of opinion as to whether the injuries were the consequence of the application of force per se, but would not allow evidence from the doctors as to whether it was occasioned by the intentional application of force by a person as that question was for the jury to determine: Evidence Act, 1995 Section 80; Regina v Folbigg [2002] NSWSC 1127 @ [91].

24 It was common ground for the purposes of the voir dire that the accused is the father of C R, and that at the time of the offences alleged in respect of her and her half sister A B he was in a de-facto relationship with their mother J B.

25 It was also common ground that this relationship failed, and that sometime thereafter the accused met R S V who gave birth to their daughter T V in the course of their de-facto relationship.

26 This evidence was not the subject of cross examination nor challenge for the purposes of the voir dire, save for the excision of the material to which counsel for the accused objected and the Crown did not press as described earlier.

28 C R was born to her on the 6th April 2001. She is the daughter of the accused.

29 According to J B's statement, about three weeks after she and C R were released from hospital following the birth, she and the accused, with C R and A B, moved to 1/393 Conadilly Street, Gunnedah. Over the next two months the accused would be alone with C R whenever Ms J B took a shower or was outside hanging washing to dry. A B would come into the shower with her mother and would go outside most of the times when the washing was taken out.

30 During the afternoon of Wednesday the 27th June 2001 Ms J B bathed the baby and noticed that her left leg was swollen. At some point an argument erupted when, according to the accused, he dropped a cup into the sink and woke C R. In the course of the argument Ms J B asked the accused to go with her to the hospital to have C R's leg examined. He refused. The argument continued and he left the home. When he returned about 8:45pm, Ms J B had gone to bed with A B, with the baby in the basinet alongside of the mattress on which they were resting.

31 Whilst the accused was absent Petrina and John Clark, his aunt and uncle, came to the flat. Mrs Clark was shown the swollen leg and she suggested that the child be taken to hospital. Thereafter M E, the wife of Ms J B's brother, came to the flat. She was also shown the swollen leg but when asked if she would drive them to the hospital she declined, suggesting that it would be a waste of time and that they would have to wait there for hours for the child to be seen.

32 When the accused returned home Ms J B would not let him enter the home immediately, but engaged him in conversation outside until about 11:00pm or thereabouts. Then they retired to bed. She returned to where she had been resting with A B and the accused went to A B's bed and slept there.

33 During the night she attended to the baby two or three times when she woke, changed her and gave her a bottle, and settled her back to sleep.

34 On Thursday the 28th June 2001 Ms J B telephoned the office of Dr. Brian Bickerton for an appointment with C R. She attended there about 5:00pm. Ms J B, according to the doctor, reported that C R's older sister had tripped over her. C R at this time was two months and three weeks old and A B 2 years and approximately 4 months old.

35 Dr. Bickerton told Ms J B to take C R to the hospital. She returned home and told the accused, and together they walked to the Gunnedah District Hospital with the children. X-rays there confirmed that C R had a fracture of the left tibia and fibula and multiple healing rib fractures.

36 The accused took A B back home to prepare the evening meal leaving Ms J B and the baby at the hospital. Ms J B followed them home about half an hour later. When she arrived her friend Patty Davis was there. When Ms J B saw A B she noticed a rash, later confirmed to be petechial bruising over her upper chest and neck. Dr. Bickerton observed this bruising when Ms J B returned to the hospital with A B the next day.

37 There, Ms J B was told that C R was to be transferred to Tamworth Base Hospital. She arranged for her mother and stepfather to come and take A B and she travelled with the baby. Later that evening, A B was brought to the Accident and Emergency Department of that hospital.

38 Ms J B states that she has seen the accused pick up C R using his hands beneath her arms but has never seen him shake her or squeeze her, although she has seen him with his hands around her as he pushed her roughly back into her bouncer when angry.

39 Ms J B states that she and the accused were the only adults left alone with C R, and denies that she assaulted the child in any manner. She states that the accused is the only person who could have inflicted the injuries suffered by C R and A B.

40 On Friday the 29th June 2001, the accused took part in an electronically recorded interview with police at the Gunnedah Police Station. This interview explored the circumstances of the accused's relationship with J B and the children, a description of their home and the sleeping arrangements, and his knowledge of the injuries to C R.

41 He described the argument that developed when he dropped a cup into the sink and woke the baby on the 27th June 2001, and his leaving the house for a walk to allow the matter to settle. When he left the house J B was attempting to get the baby to sleep again. When he returned later that evening they spoke together outside of the house about the argument and then retired to bed

42 He said that C R began screaming constantly on the Wednesday night, the night before she was taken the hospital. The screaming began as they both slept. When asked by J B to do so he got a bottle of formula that had already been made up, warmed it, and gave to her to feed C R. He went back to sleep but was aware that the baby kept turning away from the bottle and heard J attempting to sooth her. He said in response to questions 197 and 199: … I can remember … hearing Julie [JB] say, "What's wrong baby?", you know, "You're stressing mum out."

And then she said, "Well, we might have to take you to the doctor's and get you checked out."

43 When he woke up at 8 o'clock the baby was asleep in the bassinette, and about one and a half hours later J B took the baby to Dr. Bickerton's rooms. When she returned she told him that they had to take the baby to hospital where, as far as he knew, she had an x ray on her leg. He was not told anything about injuries to her chest.

44 Later in the interview the accused describes how J B was bathing C R and indicated what she said was swelling to her leg that he did not see, noting that she had chubby legs.

45 He told the police that at the hospital he asked J B whether she wanted him to take A B home so that she could have tea and be put to bed, and then did so.

46 Patty Davis and her children called in before J B arrived home from the hospital and she made a reference to the Department of Community Service and the possibility that she would lose the children, and for the first time told the accused that C R had fractured ribs and a broken leg.

47 The accused said that at no time was he alone with C R, and the only person who had been alone with the baby in that period was J B when he went for his walk after the argument.

48 He denied having caused the injury to C R's leg and has not seen any other person mistreat her.

49 Toward the end of the interview the accused was asked questions about the petechial bruising on A B's face. He described a conversation with the nursing staff at the hospital about this when he was waiting there with A B before taking her home for her tea.

50 On the 15th August 2001, the accused took part in a further electronically recorded interview with police at the Gunnedah Police Station. This interview was primarily concerned with injuries observed upon A B. Significantly, in response to questions 46 to 49 the accused told the police (emphasis added) Around [the week leading up to the 29th June 2001] because she got out of bed, we got her up out of bed about half past eight, usually 9 o'clock and me and Julie [JB] both noticed this on Leishy [AB] before we went to the hospital for C [CR]. She had red, like little red spots across her forehead …

… and a couple on her cheeks and here and down her front of her chest and just going across the top of her shoulders. So we were taking C up anyways so we took Leishy [AB] up and Julie [JB] and the doctors had a laugh and said, Oh, it looks like we got two sick kids on me hands, because C [CR] was in a bad way and, you know, they just yarned about it but nothing was done.

… that would have been the day that Leishy [AB] came up with us and I took Leishy [AB] home at about 6 o'clock that night and put her to bed.

51 In response to question 69, when asked about conversation with J B after they had seen the bruising together he said: I just said to her, I said, What do you think this is? And she said she thought the same way I did, chicken pox or something. And so I said, Oh, well, we might as well take Leishy [AB] up too with us, and Julie [JB] never even put her in to see the doctors. She was just standing there with me while Julie [JB] was in the x-ray room with C [CR] .

52 This conflicts with what was said by J B who claims that she did not see the petechial bruising to A B until she returned home after she left C R at the hospital.

53 The accused denied any conduct toward A B that might have involved compression upon her chest causing the petechial bruising to her face, or compromise to the function of her liver and kidneys discovered by the medical practitioners called in to investigate her condition.

54 Although he referred to others who would come to the house, he did not suggest that any of them might have injured A B. Nor did he suggest that J B might have been responsible for the injuries, even in response to information put by the police that neighbours had alleged that she regularly screamed at the children.

55 In the latter portion of this interview the accused was asked further questions regarding C R and the fractures to her ribs and legs of varying ages, and regarding her feeding and bathing. He knew nothing of the factures to the ribs until C R was taken to hospital, and knew of no incident in which these injuries could have been occasioned. He identified persons who had baby-sat the children, but there was no indication of either child having suffered any injury whilst in that care. He said that there was only one occasion when C R screamed as if in pain, and it was the night before she was taken to Gunnedah Hospital. Of that he said in response to question 189: She didn't get taken to the hospital until that next day because she had a screaming fit and then we ended up calming her down with a bottle and a couple of blankets and Julie [JB] was just nursing her there for a while and then put her back to sleep and she went back to sleep.

56 J B also gave evidence at the committal proceedings on the 7th December 2004 from page 47. There is no need to refer to any specific passage in that transcript.

57 T V was born to R S V and the accused at Armidale Hospital on the 21st April 2003.

58 As at the 11th May 2003, when T V was 20 days old, the accused and Ms R S V were living together with the baby at 1/74 Dangar Street, Armidale. They had by then been known to each other for about two and a half years.

59 Within that 20-day period no other person lived at this address. Visitors to the premises included Ms R S V's parents (L O V and J L V), her sister (C A O), her brother (D O), and some friends (Anthea Thomas, Mark Doyle and Vanessa Mailfert).

60 Ms R S V states that although these people had access to T V, of them only her mother, brother, and sister handled her.

61 At night the baby slept in a pram at the side of the bed in which Ms V slept with the accused.

62 About lunchtime on Thursday the 8th May 2003, Ms R S V and her mother took T V to Dr. David Breusch. She thought that the baby was having difficulty breathing, although she did not appear to be in discomfort or pain otherwise. She noticed this apparent breathing difficulty about 6:00am when she fed T V. The doctor examined her but could find no problems. This allayed her concerns and between 4:00pm and 6:00pm she left the baby with her mother and sister whilst she went shopping with the accused. It was a cold day and she did not want to take the baby out with her.

63 On Friday the 9th May 2003, the only people to have contact with T V were Ms R S V, her mother and sister, and the accused. About 9:00pm, Ms R S V had a sleep and left T V in the care of the others. She appeared then to be well. Ms R S V's mother remained until about 1:00am and was present when the accused gave the baby her last feed of the evening and put her down for the night.

64 Ms R S V's sister apparently went home some time before her mother.

65 About 2:00am, Ms R S V woke to feed the baby but she would take only half of the bottle, would not settle, and appeared to be having more severe breathing difficulties than seen on the 8th May. Each five minutes or so she appeared to be struggling and exerting much effort in her breathing pattern. In between times she would settle. Ms R S V changed her nappy and saw no indication of any injury or other pain or discomfort. She sat with the baby and did not return to sleep that night.

66 About 8:30am, her mother called and when told of T V's distress she came to assist. T V's distress continued until about lunchtime when they decided to take her to the Accident and Emergency Department at the Armidale Hospital. Ms R S V's sister accompanied them.

67 At the hospital T V as examined. There were bruises to her chest that were not seen by Ms R S V until that time. Specifically, the bruises were not present when she changed the baby about lunchtime that day.

68 Ms R S V denied having done anything to T V that could have caused her injuries and knew of no one who may have caused them. She described to police the response of the accused to T V's injuries. He was shocked and they cried together when they went in to where T V was being given oxygen. She told the police that they both had literally thrown up seeing her connected to the machines.

69 R S V gave evidence at the committal hearing on the 7th December 2004 from page 1. There is no need to refer to any specific passage from that transcript.

70 The accused declined the opportunity to take part in an interview with police regarding this matter, but did consent to a video recorded "walk around" of their flat.

71 He confirmed that he had told the police that he discovered the baby having difficulty breathing on the Friday night (question 17), that he had heard a clicking noise from her chest (questions 18 and 19), and that she was unsettled and he called R S V's mother to come around in the Friday night (question 20).

73 He confirmed that he had told the police that R S V's mother and her sister had helped them with the baby that day (questions 23 to 25).

74 He demonstrated how he held the baby when lifting her and feeding her, and said that he and R S V shared the feeding and changing. Although I have been provided only with the transcript for the purposes of the voir dire, it does not contain any indication that the actions demonstrated were such as might put the child at risk of injury.

75 The accused said that he was never alone with the baby and on the occasions that he has left the baby with R S V there was always someone else there.

76 There was nothing said in the course of this recording that would explain how the injuries were suffered by this child.

77 On the 28th June 2001 Ms J B attended Dr. Brian Bickerton with C R about 5:00pm. According to the doctor she reported that C R's older sister had tripped over her. He noted C R's left leg was swollen and tender and told Ms J B to take her to the hospital.

78 Dr. Bickerton gave evidence in the committal proceedings on the 7th December 2004 from page 28. At page 31 he said that J B came to him with the history of having seen the child with a swollen leg that morning, that she had been crying and distressed with nappy changes, and when asked whether she had any injuries was told that her sister (A B) fell on her. At page 37 he referred to the presence of subconjunctival haematoma, consistent with petechial bruising such as has been discussed with respect to A B.

79 X-rays at the Gunnedah District Hospital confirmed that C R had a fracture of the left tibia and fibula and multiple healing rib fractures. She was transferred to Tamworth Base Hospital where, during the afternoon of the 29th June 2001, Paediatrician Dr. David McDonald examined her.

80 In his statement of the 19th July 2001 Dr. McDonald records at [7]: Chest xray revealed multiple fractures of multiple ribs, mainly of the lateral aspects of the left ribs nos 2, 3, 5, 6, and possibly 7, and of right ribs 3, 4, 5 and possibly 6, and of right rib 2 anteriorly. There was callus formation, suggesting that the healing process had commenced, and the Radiologist estimated that these fractures were probably weeks old. … Xrays of the legs showed mild inflammation of the periosteum (membrane covering the bone) of the left femur (thigh bone). There were fractures of the metaphyses (bone near the growth plate) involving the distal right femur (thigh bone) and proximal right tibia (shin bone). There was a fracture of the mid tibial shaft and of the distal fibula shaft of the left leg (lower leg bones). There was a possible fracture of the metaphysis (bone near the growth plate) of the distal right tibia (shin bone). There was mild irregularity of the right radial shaft (forearm bone), and this may have been due to a previous fracture. The Radiologist commented that there were multiple fractures of different ages in a pattern commonly seen with non accidental injury. 81 Dr. McDonald was cross-examined before me regarding his attendance upon this child and his subsequent attendances upon A B.

82 In response to questions regarding C R he confirmed that although her weight was in the tenth percentile, she was a short child and was in fact slightly chubby. The usual explanation for rib fractures such as were seen on the x-rays of C R's chest is compression. The symmetrical pattern suggests that the compression was from front to back. At page 80 line 45 of the transcript he said: It's believed that if there's a compression between the breast bone and the spine that the ribs being semi-circular if they're compressed enough they bend and then they give way at set points, usually down the back of the ribs near the spine is the usual position and sometimes on the sides and sometimes anteriorly there's a series of points where the pressure on the rib is at its maximum. I think from reading the notes that there was a roughly equal number left and right in similar positions, so my estimate would be that the compression would be in a front to back, bringing the front and the back of the child close together. 83 At page 81 line 6, in response to a question as to whether the fractures could have been caused by compression of the chest whilst the child was laying on a flat surface, he said: It's possible. It would have to be a substantial pressure. One of the mechanisms of fractures down the back of the ribs is in a situation where somebody has their hands around the chest, because the - as the ribs are compressed the posterior ribs move backwards behind the spine and that levers, puts extra force where the ribs join the spine. So if you are lying on a flat surface and pressure is applied to the breastbone you would expect the fractures probably to be more to the side and not so much towards the back. Because you sort of need the ribs to move back to get fractures at the side of the spine. I probably need to see the x-rays again to be more detailed, but I think whichever the mechanism considerable force would be required. 84 At page 81 line 27, when asked whether ribs could be broken with pressure to the back of the child if she was facing a flat surface, he said: Yes, I think - yes, if there was enough force. Particularly if… the force landed straight onto the spine and the front, the sternum was being held rigid. But children's bones are fairly bendy so they tend to bend rather than snap. So to get a snap requires quite a lot of deformity. 85 He said that the force required to fracture ribs in a child of this age when holding the child around the rib cage was substantial and that one would be impressed by the amount of force required. The ribs do not break easily, they tend to bend.

86 With regard to the injuries to C Rs legs Dr. McDonald's opinion is that she would not have been able to cause them to herself. At page 85 line 33, Because a three month old baby can't role and can't actually manoeuvre so the injuries can only have occurred as a result of an action of another person. I think the most likely explanation would be rough handling of the legs by another person. Whether that rough handling means the child was dragged by the legs and pulled firmly, I think that's perhaps the more likely possibility.

87 He said that the fractures at the mid shaft were likely to have been the result of the application of lateral force and those at the metaphyses the result of traction. The force required would be well above what most people would regard as normal force.

88 C R's weight, although small, was more than it needed to be as she was a short child. She was not undernourished. There was nothing to indicate metabolic bone disease.

89 Dr. McDonald gave evidence in the committal hearing on the 10th September 2004. At page 59 and following he discounted a child of the age of C R being able to suffer her injuries other than by the actions of adult person. He spoke of the significant force required to fracture the ribs of a child of this age; they are so flexible that they tend to bend rather than break. He suggested, as a mechanism for the rib fractures, an adult holding the child around the chest with both hands and squeezing forcefully, and for the fractures to her leg, someone grabbing the leg and pulling hard. At page 60 from line 41 he rejected accident as a cause of these injuries.

90 On the same date at page 83 Dr. McDonald responded to cross examination with the opinion that the fractures to C R's ribs could only have been occasioned through the agency of an adult or at least an older child.

91 On the 2nd July 2001 Dr. Martin Young, Radiologist, provided his report upon an examination of the skeletal survey x-ray taken of C R on the 29th June 2001 at Tamworth Base Hospital. He noted: A large amount of callus is present at multiple fractures of multiple ribs, mainly of the lateral aspects of left ribs 2, 3, 5, 6, and possibly 7 and of right 3,4,5 and probably 6 and of right 2 anteriorly. These are probably weeks old.

There is mild shaft periostitis of the left femur. Metaphyseal corner fractures involve the distal right femur, proximal right tibia. Distal end of left femur is obscured by POP. A mildly laterally angulated but undisplaced fracture of mid tibial shaft is present with "Z" shaped fracture of distal fibular shaft. No healing response - new fractures.

There is some irregularity of the metaphyses of distal right tibia also - probable further metaphyseal corner fracture.

COMMENT -multiple fractures of varying age in a pattern commonly seen with non-accidental injury.

92 On the 10th July 2001, Dr. Young provided his report upon an examination of an x-ray performed on C R on the 9th July 2001. He noted excellent callus formation at the tibial and tibular shaft fractures with mild residual lateral angulation.

93 Dr. Young was cross-examined before me. In his opinion there were more than two episodes of injury to the legs, most likely three, upon his observation that there were multiple fractures involving multiple bones in varying stages of healing demonstrated by the extent of or lack of callus formation. The fractures at the lower end of the left tibia and fibula were in his estimate at the most 24 hours old, the corner fractures around the right femur above the knee and the upper end of the right tibia were perhaps one to two weeks old, and the periostitis around the left femur approximately two weeks old.

94 The periostitis was likely to have been caused by direct impact of significant force. The fractures occurring near to the growth plates above and below the right knee are most commonly the result of a considerable twisting force. The complex of fractures at the lower left tibia and fibular was unusual, and indicative of a significant lateral force having been applied above or below the point of the fractures, at which a fulcrum was positioned. He demonstrated the action described against the edge of the bench of the witness box.

95 The x-rays of the chest showed evidence of multiple healing of the fractures of ribs on both sides principally laterally, perhaps two weeks old, each of which he believed occurred at approximately the same time.

96 At page 141 line 49 he said of the pattern of the rib fractures, … that usually follows a squeezing injury to the chest of a child of this age usually an anterior posterior force, sort of front to back compression, compressive force.

97 He rejected the proposition that the force resulting in the rib fractures could have been applied laterally.

98 On the 8th August 2003 Dr. John Bear, Paediatric Radiologist, examined the x-rays taken of C R's chest on the 29th June 2001 and prepared a report bearing that date but signed on the 29th October 2003. He observed fractures of the posterior ends of the left 7th and 8th ribs. There was callus around the fractures with no radiolucent fracture line visible. There were fractures of the right 2nd and 3rd ribs with fracture lines still visible with callus surrounding them. There were fractures with surrounding callus in the axillary segments of the right 4th and 5th ribs. The left 2nd rib had a radiolucent fracture line through the axillary segment with surrounding callus. The left 3rd, 4th and 5th ribs had fractures in the axillary segment with callus formation. There was a step in the superior cortex of the anterior end of the left 6th rib consistent with a fracture with no callus formation. Upon these observations Dr. Bear commented in his report: Callus around the posterior rib fractures of the left 7th and 8th rib fractures appears more mature than the callus around the other rib fractures. This more mature appearance of the callus and the absence of radiolucent fracture lines in these fractures makes it highly likely that they occurred before the other fractures.

The presence of rib fractures in a child this age and in particular the presence of fractures of the posterior ends of the ribs is highly suspicious for non-accident injury. 99 Dr. Bear examined the x-rays taken of C R's legs on the 29th June 2001 and observed recent mid shaft fractures of the left tibia and fibula with no surrounding callus, and abnormality of the lower right femur with fragmented spurs on the medial and lateral sides of the metaphysis with a small amount of periosteal callus next to the spurs. Upon these observations he commented in his report: The presence of spurring and periosteal callus in the distal right femur is highly suspicious for non accidental injury. The appearance is typical of metaphyseal corner fractures which result from shaking. The callus would take about a week to develop. The presence of callus around the distal right femur while there is more around the fractures of the left tibial and fibula is evidence of two separate episodes of injury. 100 Dr. Bear examined an x-ray of the left tibia and fibula of the 9th July 2001 and noted callus around the fractures of the shafts and periosteal callus on the distal femur and corner fractures of the distal femoral metaphysis.

101 Dr. Bear examined a film from an ultra sound performed upon C R's head on the 2nd July 2001 and saw a 7mm x 6mm focal area of bright echogenicity consistent with recent haemorrhage. Of this he commented that trauma is the most likely cause.

102 His final comment upon this material is: There is evidence of two different mechanisms of injury. Shaking is highly likely to be the cause of the brain haemorrhage. Shaking is also the likely cause of the metaphyseal corner fractures in the distal end of both femurs. The fractures of the shafts of the tibia and fibula would be due to direct trauma rather than shaking.

There is also evidence of more than one episode of injury. There is evidence that there were probably three separate episodes.

The first episode resulted in the fractures of the posterior ends of the 7th and 8th ribs which had time to partially heal before a second episode occurred where fractures on the other ribs resulted. The other rib fractures had time to partially heal and form callus before the episode of trauma which caused the fractures to the left tibia and fibula.

The metaphyseal corner fractures of the distal femurs and the associated periosteal callus had also occurred some time before the episode that caused the facture of the shafts of the tibia and fibula.

The appearance of the cerebral haemorrhage on the ultrasound is also consistent with a very recent injury. 103 Dr. Bear was cross-examined before me and was questioned regarding his assessment of the injuries to this child and those sustained by T V.

104 Dr. Bear did not examine C R but had examined her x-ray and ultra sound films. It is his opinion that the fractures to C R's ribs were occasioned in at least three separate episodes, evidenced by the varying degrees to which callus had formed at those sites. He was questioned regarding the time frame in which these occurred but could not offer an opinion. This was not something upon which he reported at the time and the facilities available at the time of his evidence were not adequate to enable him to undertake that exercise. He agreed with the proposition that the pressure required to cause the fractures to the ribs would decrease in each subsequent episode by reason of the damage suffered in the earlier episodes. Dr. Bear acknowledged that it was beyond his area of expertise to suggest the extent to which the ribs might have been made more vulnerable, but noted that there would be less support for the ribs left intact after an adjoining rib had sustained a fracture.

105 Dr. Bear was questioned about the fractures to C R's legs and said that callus would be expected to form five days to a week after the fracture occurred in a child of this age.

106 The image of the cerebral haemorrhage on the ultrasound was not the subject of further investigation by Dr. Bear and he left that for Professor Graham Vernon Vimpani with whom he discussed his findings to review them and follow up if required.

107 It should be remembered that Dr. Bear and Professor Vimpani were not involved in the management of C R or A B when they came to notice in 2001, and that their involvement with these children was not until 2003 when the circumstances of their injuries and the films from the radiological examinations of C R were brought to them for their consideration.

108 I have noted Dr Bear's evidence at the committal hearing regarding this, specifically his cross-examination at pages 3, 8, and 14 where, in contrast to the opinions of others who did not make any such findings, he maintained his opinion that the child had suffered this bleed. It appears from his evidence at page 9 of the committal transcript that the doctor was at the time not aware of a later C.T. scan which did not disclose any such injury.

109 Upon the evidence before me, and in light of the thoroughness of the investigations that were undertaken in the management of this child after she was brought into the care of these practitioners, it is unlikely that there was a cerebral haemorrhage. At its highest, as acknowledged by Dr. Bear in the course of this voir dire, there is an indication of the possibility of such an injury from the ultra sound film

110 Dr. Bear was cross-examined in the committal hearing on the 6th December 2004. He expressed the opinion at page 2 of the transcript that there were two episodes of fractures to C R's ribs, with the fracture of the distal end of the femur around the time of the rib fractures, and a third episode of injury when the fractures of the tibia and fibula occurred. At page 3 he expressed the opinion that it would be unlikely that a child of three months could put themselves at risk of harm. According to Dr. Bear, at page 7 of the committal transcript, metaphyseal corner fractures are consistent with the child having been shaken.

111 Dr. Bear suggested a sequence for these injuries at page 17 of the committal transcript. Assessed against the callus seen upon the x ray films, in his opinion the posterior seventh and eighth posterior rib fractures occurred first followed by the other rib fractures, then the fracture to the distal end of the right femur, and then the fractures to the left tibia and fibula. They had no callus formation and at page 18 he expressed the opinion that they probably occurred close to the 29th June 2001 when the x-rays upon which he was commenting were taken.

112 His opinion expressed at page 29 was that the injuries were from the baby being shaken, save for the mid shaft fractures to the left tibia and fibula, and then at page 32, that the fractures to the ribs of an infant of this age is uncommon except as a result of the mechanism of squeezing, with posterior fractures more characteristic of an abused child as they tend not to occur in other circumstances of injury.

113 There are differences between the findings made by Dr. Bear expressed in his reports and the responses attributed to him in his cross-examination at the committal. The responses there do not include the range of fractures to the lower limbs identified in his report. These were not the subject of any submissions to me, and do not bear upon the decisions that I was required to make in determining this application. They are accordingly put to one side.

114 On the 29th June 2001 Dr. Bickerton examined A B, then 3 years 4 months and 2 weeks of age, at the Accident and Emergency Department of Gunnedah Hospital. He noted a petechial rash to her upper body including her sclera (the white part of the eye). This was the day after J B had brought in A B's baby sister C R suffering from an injury to her left leg.

115 Counsel for the accused wished to have Dr. Bickerton attend the voir dire for cross examination upon his observation of a mark on the chest of A B which he described as being consistent with her having been stood on. To avoid the inconvenience involved in having the doctor attend from the country for this purpose, counsel abandoned that decision in light of the evidence of another doctor who did not form that opinion, and when the Crown did not press that part of Dr. Bickerton's statement. In reaching my decision I have given no regard to the doctor's representation as to the mark being consistent with the child having been stood on. I note that he gave evidence of this at the committal hearing on the 7th December 2004 from page 28, and in the course of doing so repeated his assertion that he saw a mark consistent with a foot print on the child's chest, but I have also disregarded those parts of the transcript of his evidence.

116 Dr. Bickerton expressed the opinion at page 33 of the committal transcript that the petechial bruising he observed was from increased pressure over a sustained period. I have taken this to mean sustained pressure to the chest.

117 On the afternoon of the 30th June 2001, Paediatrician Dr. David McDonald saw A B at the Tamworth Base Hospital to which she had been referred. Although a short child, she appears to be naturally so, and her weight was appropriate for her height. Interaction between the child and her mother seemed to him appropriate, and there was no evidence of any physical neglect.

118 He observed the petechial rash described above. This condition he explained in the following way at [5] in his statement of the 19th July 2001 relevant to this child: A petechial rash is formed by many pinpoint bruises in the skin, generally either due to an abnormality of blood platelets or to an abnormality of blood vessels in the skin, or due to raised pressure in the blood vessel due to obstructed blood flow from the skin (venous congestion).

119 At [7] he described the petechial rash thus: A had a petechial rash starting in a line around the upper neck and proceeding up onto the lower face, particularly in the area in front of the ears, and then up onto the forehead.

120 Blood was collected and tested and revealed elevated blood urea and blood creatinine suggesting renal failure. Liver function tests were also abnormal implying hepatitis, but further testing eliminated hepatitis B, hepatitis A, and hepatitis C viruses and other infections all of which are known causes of hepatitis, a term the doctor described in cross examination as a reference to inflammation of the liver whatever the cause.

121 Repeat testing followed, and on the 11th July 2001 the results demonstrated total resolution of the renal failure and liver function was almost returned to normal. The petechial rash dissipated by the morning of the 13th July 2001.

122 Dr. McDonald discussed these findings with Dr. Elizabeth Hodson, Kidney Specialist at the Children's Hospital, Westmead. At [12]: She said that the elevated levels rapidly resolving suggested the possibility of a sever lack of oxygen to the kidneys for a period. However under these circumstances a lack of oxygen to the brain and to other organs should also be evident. A second possibility was direct injury to the kidneys, in which case blood should be visible in the urine. A urine examination on 1st July showed no evidence of this. A third possibility was dehydration sufficient to cause pre renal failure, but there was no evidence of this on admission.

123 In her statement of the 26th March 2004, Dr. Hodson offered the following: In my opinion the most likely explanation of this degree of acute kidney failure associated with a normal kidney ultrasound, normal urine tests and rapid resolution would be a period of reduced oxygen delivery to the kidney. Typically this results in evidence of damage to other organs as well as the kidneys. This child also had liver abnormalities, which resolved rapidly, so that the evidence of both kidney and liver damage would fit with a period of reduced oxygen delivery to both organs.

I do not believe that direct renal injury could cause this degree of reduced kidney function since the kidney ultrasound was normal and there was no blood found in the urine.

Sever prolonged dehydration can cause reduced renal function. However there was no evidence of dehydration on clinical examination of this child …so I do not believe that dehydration caused the reduced kidney function. 124 Dr. McDonald discussed the results indicating abnormal liver failure with Dr. Stuart Dorney, Liver Specialist at the Children's hospital at Westmead. At [13]: He felt that the rapid resolution of the ALT and AST levels was likely to be due to lack of blood flow or oxygen to the liver, in which case there should be evidence of other organs also lacking oxygen or blood flow. A second possibility was direct injury to the liver, which would not necessarily show up on an ultrasound of the liver.

125 In his statement of the 5th March 2004 Dr. Dorney provided a description of the methodology for screening for organ damage by measuring enzyme levels in the blood. Alanine transaminase (ALT) and aspartate transaminase (AST) present in the blood indicated liver or muscle damage, the former being more common. The return to normal levels within three days makes an infective cause unlikely, and physical trauma or a lack of oxygen or lack of blood flow more likely.

126 Dr. McDonald took a history from J B that she first noticed the rash on the evening of the 28th June, and that it was present from the neck up over the face and consisted of red blotches.

127 Dr. William Barnett, Ophthalmic Surgeon, examined A on the 3rd July 2001 but found no evidence of trauma to either eye or the area surrounding either eye.

128 After providing his summary at [16], including the explanations to be explored for the condition of this child as he observed her and as indicated by diagnostic procedures undertaken, at [17] Dr. McDonald offered the following: Therefore the physical signs observed would certainly be consistent with a history of sustained firm pressure applied to the lower central chest or upper central abdomen, sufficient to cause venous congestion in the upper body and a petechial rash, and obstruction of arterial blood flow to the kidneys and liver, with evidence of renal failure and of hepatitis. There is some evidence to support a recent viral or streptococcal infection, which may explain the chest xray findings and the petechial rash, but which would not explain the renal failure of hepatitis resolving very rapidly upon hospital admission. 129 Dr. McDonald was cross-examined before me regarding his attendance upon A B.

130 He said petechial rash was not common and occurred under very specific circumstances. No photographs of the rash were exposed but he drew a diagram representing the child and the affected area on one side of the face. The rash extended to cover a comparable area on the other side of the face.

131 The causes of petechial rashes were confirmed, as described in the statements from Dr. McDonald, and he discounted irritation or allergy as possible causes. At page 94 line 42 he said: In an attempt to produce a unified explanation one thought I had was that had there been pressure applied to an area in the child such as the solar plexus, the high abdomen in the midline, perhaps the lower chest region, that could both interfere with arterial blood supply to the liver and the kidneys and could also restrict blood returned from the head and could produce all three events with a single explanation. Since I wrote that report I haven't substantially changed my point of view. I've thought of different ways that it could've occurred. One was the child was lying on her back and someone was pressing down in the lower midline of the chest or upper abdomen. …

Another possibility would be a bear hug type of thing where someone had encircled, an adult encircled the child with their arms, with maybe joining their hands together in the front, pressing in hard at the upper abdomen, lower chest, in the midline, and it would have to be for a period of time to allow the blood flow effects to actually cause an injury, so it would have to be more than just an exuberant hug. It would have to be held, …for minutes, I would think, … so the child would probably be unable to breathe properly. So it would be like, you know, excessive. 132 Dr. McDonald said that he found it hard to come up with an alternative explanation to the compression mechanism that he has described. He allowed for circumstances as to how that might have been applied, in addition to malice, such as when a person might be caught beneath a collapsed football scrum or a vehicle. He later agreed that a large woman, rolling on the child in bed and remaining there compressing the chest for several minutes, but no more than four, could produce the same manifestations.

133 Dr. McDonald was asked questions regarding the assessment of renal failure and compromised liver function and he gave evidence which in essence accommodated and did not contradict the contents of his statement and the statements from the Dr. Hodson and Dr. Dorney.

134 He discounted dehydration of the child as a factor in the renal failure.

135 Dr. McDonald gave evidence regarding A B at the committal proceedings on the 10th September 2004. He agreed with the proposition that if deprivation of oxygen was the explanation for the renal failure and the hepatitis he would have expected other organs to have been compromised, and would have perhaps seen blood in the urine. There was no evidence of these.

136 At page 87 of the committal transcript of that day he said of the petechial bruising that if coughing were the cause it would need to be so severe that it would cause concern to onlookers, or if milder, be for a prolonged period of time.

137 In the committal proceedings Professor Vimpani was cross-examined about the observations made of A B. He had not examined the child, but accepting the observations of the petechial bruising that had been reported, he said on the 9th September 2004 at page 28: …, the rash is, as I've suggested, not the result of the anoxia but as a result of the raised intravenous pressure, intravascular pressure as a result of struggling.

138 On the same day at page 29 from line 57 he said: … it's the struggling of the child when the oxygen supply - when her airway's obstructed that raises the intravascular pressure that causes the petechiae. The liver and renal - if the liver and renal damage were a result of poor blood supply that would've needed to be present for some time, some diminution in the oxygen content of the blood would've needed to be present for some time to cause those findings, I believe.

139 T V was born at Armidale Hospital on the 21st April 2003. She was delivered by urgent caesarean section. She was treated with intravenous fluids over two days, and then breast-feeding was gradually established.

140 Dr. David Breusch was her mother's treating doctor, but he called in aid of the delivery specialist obstetrician Dr. Chattopadhyay because of complications during the labour. He performed the caesarean section with assistance from Dr. Breusch.

141 T V was seen at birth by Dr. Catherine Wiles, paediatrician.

142 Mother and daughter were discharged on the 3rd May 2003.

143 On the 5th May 2003 T V was reviewed by the Early Childhood Nurse, was noted to be gaining weight at 35 grams per day, and was being changed to bottle feeds.

144 On the 8th May 2003 her mother was concerned about her breathing. When Nurse Clayton attended she noted a respiratory rate of 60 and advised that she be taken to her doctor. Dr. Breusch was consulted the same day but upon examination could find no sign of respiratory distress. He noted that the baby was continuing to gain weight. Importantly, in his report he notes that: She was not using accessory muscles of respiration. …There were no marks or bruises on Tamara's [TV] chest wall. I listened to Tamara's [TV] heart and lungs with a stethoscope and found no abnormality in heart or breathing sounds. 145 There was some vomiting that might have been associated with upper respiratory noise, which Breusch described as a grunting noise coming from the soft palate associated with breathing and feeding difficulty, and quite normal for a small baby.

146 Thereafter the vomiting apparently settled and T V continued to take bottles normally.

147 About midday on the 10th May 2003 R S V took the baby to Armidale Hospital.

148 When called by Dr. Simon Murphy in the Accident and Emergency Department Dr. Breusch attended the hospital about 12:45pm and saw T V on a trolley. He observed the areas of bruising described hereunder, and states that they were not present when he saw the child two days earlier.

149 Dr. Breusch was cross-examined before me on the 3rd May 2006. There was no suggestion of any injury to T V in the course of the delivery. When he examined her on the 8th May 2003, she had all clothing removed save for her nappy. Dr. Breusch and the mother probably carried out this task together. After the examination the baby was dressed. He confirmed the absence of injuries, including the bruising which he observed when he attended the hospital on the 10th May 2003.

150 Dr. Breusch gave evidence in the committal hearing on the 6th December 2004. At page 38 he acknowledged that the normal respiration for a child of this age is 15 to 20 breaths per minute. At page 48 he referred to petechial spots on the face of T V that he thought were traumatic in origin, possibly the result of pressure around the neck. At page 49 he expressed the opinion that bruises on a baby such as were seen on the chest of T V would appear on the day of the injury.

151 Specialist Paediatrician Dr. Keith Michael Power assumed care of the child. His examination revealed: (1) Moderate respiratory distress;

(2) Dusky skin that recovered to pink when she was placed in oxygen;

(3) Crepitus, palpable over the chest wall on both sides;

(4) Bruising below and lateral to the right nipple over an irregular area measuring 4 by 2 centimetres, and just outside of the left nipple over an area measuring 2 centimetres in diameter; this discolouration was reddish at midday and by 6:00pm had deepened, become more diffuse, and the swelling lessened;

(6) About 6 small petechial spots on the child's face and forehead, the largest of 1.5 mm in diameter.

152 X ray of her chest revealed: 1) Numerous fractures of the lower ribs, posteriorly on the left;

2. Lateral fractures of the middle ribs on the left and the right roughly beneath the areas of bruising summarised above;

3. Generalised opacification of the left lung suggestive of pleural fluid; and

4. Decreased lung markings suggestive of a small pneumothorax on the right.

153 The child appeared to be thin, and upon admission weighed 2300 grams, 120 grams less than her bare weight on the 8th May 2003. She was suffering from oral candida and a moderate red rash around the anus and labia.

154 In the penultimate paragraph of his statement of the 12th May 2003, Dr. Power offers the following: The history and physical findings suggested to me that Tamara [TV] had been injured within 24 hours before her admission. The symptoms reported on 8.5.03 may have been due to the introduction of formula feeds, vomiting, and to oral thrush infection. 155 Dr. Power was cross-examined before me. His first direct examination of the child was at or shortly after 12:00 midday on the 10th May 2003 at Armidale Hospital after her admission when he was called to attend by Dr. Murphy.

156 Dr. Power amplified the representations contained in his statement. The moderate respiratory distress he observed manifested by subcostal recession (demonstrated as the drawing of the abdomen against the spine) apparent each time the child inspired. Her dusky colour was more appropriately described as blue evidencing cyanosis confirmed by the assessment of her blood gases. These revealed a level of oxygen saturation in her blood of 70%, which rose to the normal level of 90% when oxygen was administered. He felt crepitus emanating from the child's ribs that was also audible. He provided a diagram of the bruising he observed, Exhibit 20 on the voir dire, but only as to size and position. He was unsure of the shape he described as irregular in his statement.

157 The injuries he observed were inconsistent with normal lifting of a child of that age using one's hands beneath the arms of the child with thumbs on the chest. Some force was required to have caused these injuries to the chest.

158 The bruising was occasioned within the 24 hours before his examination. The swelling on the right was under or in relation to the bruise at that site. The bruising was the result of unusual force, not consistent with normal lifting of the child by holding it beneath the arms.

159 The petechial spots were in fact bruises from the rupture of fine vessels within the skin, the result of increased venous pressure. This is always evident with strangulation and often when babies are shaken. It may be caused by the compression of the thorax but significant pressure would be required.

160 It sometimes occurs as a consequence of childbirth from the pressure exerted by the birth canal and may be the product of severe coughing. Both of these may be discounted. This child was delivered by caesarean section. The force of the expiration during coughing required to cause petechial spots is significant and would have involved significant pain. There was no evidence of the child suffering from any coughing that may be so described or at all.

161 About 1:15pm on the 11th May 2003 Professor Graham Vernon Vimpani, Professor of Community Child and Family Health and Head of Paediatrics and Child Health at the University of Newcastle, attended the Neonatal Intensive Care Unit of the John Hunter Hospital to examine T V after she had been transferred there by helicopter from Armidale Hospital. He noted the injuries discovered upon earlier examinations and took the following history from R S V: 1) There had been no problems during the pregnancy - gestation was 39 weeks - Rebecca had smoked tobacco daily and cannabis occasionally during the pregnancy;

2. Labour had extended to 26 hours, concluding with delivery by caesarean section when the cervix failed to dilate accompanied by foetal distress marked by low heart rate - birth weight was 2.13 kilograms, below the second percentile for the gestational age;

3. T V was kept in hospital for 2 weeks until she began to gain weight;

4. On the 3rd May 2003 she was discharged home on bottle feeds and expressed breast milk thereafter to be bottle fed;

5. T V was a good baby with only mild settling difficulty;

6. Bottle feeding was commenced on the 5th or 6th May following advice from a Child and Family Nurse after several vomits on the 5th May - there continued to be small amounts of regurgitation thereafter;

7. On the 8th May R S V thought T V was having difficulty breathing and took her to her family doctor after initial advice from the early childhood nurse;

8. The doctor said that she was alright and she settled after this visit;

9. On Friday the 9th May R S V's mother (L O V) came and stayed with her all of the day - R S V left T V in the care of her mother and the accused when she retired to bed about 9:00pm - the baby was fine and had taken her 7:00pm feed;

10. L O V saw the accused feed the child at 11:00pm, she settled normally, and at 1:30am Saturday morning L O V left to go home - the accused said he was going to tidy up;

11. Between about 2:00am and 2:30am R S V woke to find T V in the cot beside the bed emitting noisy breath sounds with clicking - she was distressed but her crying settled with cuddling;

12. At 10:00am T was taken to the Armidale Hospital Emergency Department. 162 Professor Vimpani was aware of the history of events and circumstances relevant to the injuries sustained by C R and A B, described at paragraphs 11 and 12 of his statement of the 15th July 2003.

163 In addition to the injuries itemised above, upon his examination of chest x-rays of the 10th May 2003 he observed: … the lungs showed a right-sided perihilar infiltrate and some patchy consolidation in the upper lobe and left side collapse/consolidation secondary to the presence of a large left pleural effusion (fluid in the pleural cavity, which surrounds the lung). There was also a small right pleural effusion. The pleural fluid was thought most likely to be blood secondary to intrapleural haemorrhage and the patchy consolidation seen in the right lung was also thought likely to be due to bleeding. 164 Professor Vimpani referred to further x-rays taken on the 11th May 2003 at the John Hunter Hospital, including film of T R's chest. The skeletal survey showed asymmetry of the distal ends of both femurs. Further x-rays on the 12th May showed asymmetry of the distal femoral metaphyses with the left distal femoral metaphysis appearing normal and the right showing some beaking on the medial aspect of it associated with a thin band of radiolucency underlying the inframedial aspect of the metaphysis consistent with a corner fracture and bucket handle appearance of the metaphyseal fracture.

165 The findings of multiple rib fractures and the appearance of the right femoral metaphysis were both consistent with non-accidental injury according to Professor Vimpani.

166 At paragraph 26 Professor Vimpani offers the following summary: … this child has sustained severe, life-threatening injuries to her chest and lower right leg. …Without medical intervention she would probably have died from respiratory failure. … The injuries to the chest are consistent with a single crushing injury occasioned by major squeezing pressure. There is no evidence that the baby had any fragility of the bones and accordingly the pressure required to cause this degree of injury would have to have been very significant. The injury to the leg suggests a traction injury as well and this would have required a very strong pulling action on the left to have caused it. 167 Professor Vimpani rules out the possibility that the metaphyseal injuries were caused by traction at the time of the delivery.

168 He is of the view that the evidence does not support the suggestion that there might have been more than one traumatic event. In his later report, of the 20th April 2006, Professor Vimpani confirmed his opinion that the injuries suffered by T V were not likely to have been sustained in more than one episode. He has summarised the factors leading to this conclusion at page 2 of that report.

169 Professor Vimpani noted the similarity in the pattern of injuries in T V compared with those in C R in June 2001. The chest injuries were most likely a result of severe compression of the chest.

170 Although the clinical presentation of A B was not identical, Professor Vimpani found comparisons in the explanations for the cause of her injuries and mechanism involved in the infliction of those suffered to the chests of C R and T V. He states (emphasis added): There are several possible explanations of her physical examination findings - first that she was partly suffocated - this would explain the bruising to her face as well as the abnormal renal and liver function, but what is surprising if these injuries resulted from suffocation is the absence of any brain injury. (One would have expected that if suffocation had been the cause she would have lost consciousness, but there is no evidence for this.) The second is that strong pressure or one or more blows were applied both to the abdomen and the upper body to result in the signs of bruising and the abnormal liver and renal function . In my view there is no satisfactory natural explanation (that is, resulting from an internal disease process) for this pattern of findings. 171 Professor Vimpani attended for cross-examination before me. He examined T V, however the opinions he formed in respect of C R and A B were upon the case notes and reports of other practitioners to which he was given access. He contrasted the absence of calcification in the immature ribs of children of the ages of C R and T V with the development of adult ribs. When questioned about his opinion that a possible cause of the rib injuries was a compression mechanism he was unable to quantify the degree of force required to cause the injuries observed, other than to say that it would have been significant. This he amplified at page 6 line 51 with the description, "…what I meant by significant and it would be, it would require very severe very strong pressure to cause those injuries."

172 He said that the compression mechanism includes the application of pressure, or force, anteriorly or posteriorly with the child against a fixed surface, or laterally as well as anteriorly and posteriorly as when an adult holds a child between their hands and squeezed violently. With the ribs being fractured in more than one place, it is more likely that there was compression injury involving pressure applied or occurring in multiple planes rather than a compression injury in just one plane.

173 He described the injuries to T V as of recent origin; they were severe, associated with pneumothorax and hemothorax involving underlying damage to the lung. It was untenable for them to have gone unrecognised. Unaided by the history provided by the mother he would have assessed as improbable the proposition that the injuries occurred more than 12 hours before he examined the child. He rejected as impossible the proposition that T V could have been suffering from the fractured ribs when Dr. Breusch examined her, for this was inconsistent with the findings at that examination as recorded. The severity of the injuries was such that had they occurred prior to the examination by Dr. Breusch, they would have been obvious even without the benefit of x-rays or bone scans.

174 Professor Vimpani was cross-examined about the metaphysial fracture of T V's right femur, commonly seen in children who have been shaken but may also be the result of traction and torsion of the leg occasioned through vigorous pulling and twisting. The force required to cause this injury would have been considerable. He rejected the proposition that this could have been the result of T V having her leg caught or wedged or from impact with a moving object.

175 When taken to the injuries sustained to the legs of C R, Professor Vimpani's opinion, relying upon the reports only, is that the metaphysial fractures reported to both of her legs would have been occasioned by the same mechanism as he described when dealing with T V. So too with the rib fractures suffered by C R and T V, which could have been caused by the same general the mechanism in each case.

176 When cross-examined during the committal hearing on the 9th September 2004, at page 4 Professor Vimpani confirmed that he would've expected T V to be in pain from her injuries, and noted that when she arrived at Armidale hospital she was in pain and crying when moved. She was placed on a morphine drip for pain relief. At page 6 he noted that if the fractures to the ribs had occurred at birth, there would have been callus formation by this time. There was none to be seen. At page 11 he said of the chest injuries suffered by TV: The fact that there were anterior and posterior rib injuries often in the same rib, is pathic-pneumonic (sic) of being - of a chest having been compressed. It's - in other words, it's hard to envisage an alternative situation other than compression that would produce that pattern of injuries. 177 On the 12th May 2003 Dr. Eric Ho, Paediatric Orthopaedic Surgeon, examined T V. In his statement of the 29th October 2003 he states (with his emphasis): This was an orthopaedic consultation for suspected limb injuries. I examined baby Vickery [TV] with my Registrar. We could not find any gross evidence of fractures or dislocation in baby Vickery's [TV] limbs. However, in view of the suspicion of non-accident injury (ribs) as previously documented, we requested x rays of Tamara's [TV] upper and lower limbs. X-ray on the 12th May 2003 confirmed metaphyseal corner fracture of the right femur. A follow up x-ray on the 14th May 2003 showed the same lesion.

178 On the 13th May 2003 Dr. Matt Edwards, specialist Geneticist, examined T V and examined and consulted with her mother R S V, grandmother L O V, and R S V s half sister C A O. In his ultimate paragraph of his statement of the 22nd October 2003 he states: There were no clinical features indicating a genetic cause for Tamara's [TV] fractures. It can be concluded that the remaining possibility was trauma.

179 Dr. John Bear provided a report on the 10th December 2003 following his examination of x-rays of T V taken on the 12th May 2003, 14th May 2003 and 16th May 2003, and an ultra sound of the 22nd May 2003. These were taken at the John Hunter Hospital.

180 He also examined x-rays taken at Armidale Hospital on the 10th May 2003.

181 He reported: Multiple rib fractures are seen on all of the chest x-rays. There are fractures in the anterior and posterior end of ribs. Multiple rib fractures were also detected on the isotope scan.

All the x-rays of the right knee show a "corner fracture" of the distal femoral metaphysis. 182 His conclusion was expressed thus: Multiple rib fractures have been identified on multiple chest x-rays and an isotope bone scan between the dates of 10/5/03 and 16/5/03. A metaphyseal "corner fracture" of the right distal femoral metaphysis is seen on the skeletal survey and specific right knee x-rays performed between 11/5/03 and 14/5/03.

These injuries are characteristic injuries for non-accidental injury incurred by the chest being squeezed while the baby was shaken. This is the most likely explanation for these x-ray findings in this patient. 183 I note that there is here no reference to these injuries having been sustained on multiple occasions. According to the statements from Professor Vimpani, initially Dr. Bear expressed the view that the first x-rays revealed callus formation indicating that the injuries to the ribs had been occasioned in separate incidents, but in his report of the 16th May 2003, according to Professor Vimpani, Dr. Bear expressed the view that what he initially thought was callus formation was in fact an artefact on the film due to positioning, with the result that his opinion that the injuries could have been occasioned on more than one occasion dissolved. These reports from Dr. Bear were not tendered on the voir dire, however the representations from Dr. Vimpani regarding those opinions and the evidence from Dr. Bear that was before me is consistent in this respect.

184 Dr. Bear was cross-examined before me. The very young age of T V, a matter of 20 days, and the absence of any callus formation observed, did not permit an assessment from the x-rays of when in that period the rib fractures occurred. Neither could he say whether the fractures occurred in one or more episodes. He discounted the possibility of the fractures, or any of them, having occurred in the course of the caesarean section.

185 He said that it was not possible to date the metaphyseal fracture of the right femur.

186 He was cross-examined in relation to this child in the committal proceedings. He initially thought there was evidence of a cerebral haemorrhage but acknowledged at page 10 of the transcript of the 6th December 2004 that he later came to the view that this was not so.

187 On the 11th May 2003 Dr. Hughie Tsang, Ophthalmology Registrar at John Hunter Hospital, attended T V and examined her eyes. No abnormality was detected. Repeat examinations by Dr. Challinor, Eye Consultant, on the 14th May and 21st May 2003 confirmed this finding.

188 Maree Clare Combe, Midwife, gave evidence at the committal on the 6th December 2004 from page 56. I was not provided with her statement. She was on duty in the nursery at the Armidale Hospital when T V was admitted on the 10th May 2003. She described T V at page 60 as having been very unwell with chest recession and respiratory problems, bruising to the chest on each side, the bruises being about the size of an adult thumbprint. At page 62 she described how the baby was struggling, and at page 64 said that, "… it's little chest was as flat as a tack, …"

189 Narelle Irene Clayton, the nurse responsible for attending upon new mothers after they were discharged home, gave evidence on that day from page 20. She attended Ms R S V and T V on the 5th, 6th, and the 8th May 2003. Her observations of the child were unremarkable, save that on the 8th May 2003 her respiratory rate was 60. At page 25 she gave evidence that she saw nothing to cause her concern that the child was unwell on the 8th May, but because of the mother's concern she recommended that she take the child to her general practitioner (Dr. Breusch).

190 The written submissions of counsel, at the request of counsel for the accused, were marked for identification 4 and 5 respectively. On the 5th May 2006 counsel addressed the court.

191 The Crown's first submission was that the offences charged in counts 1 and 2 in the indictment should be tried together because they arise from the same set of circumstances, were committed within times proximate to one another, and are of the same character: Criminal Procedure Act, 1986, section 29(1) paragraphs (b) & (c).

192 The Crown pointed to the following matters in support of this submission: 1) The ages of the children when injured: C R was injured at some point between her birth on the 6th April 2001 and the 28th June 2001 when she was 2 months and 23 days of age, and A B was injured at some time between the 20th June 2001 and the 29th June 2001 when she was aged about 2 years 3 months;

2. The injuries were sustained when the children were living with their mother and the accused, C R's father, who were living together as de facto partners;

3. The injuries to A B were discovered on the day immediately following the discovery of the injuries to C R;

4. The accused had the opportunity in each case to have caused those injuries;

5. The evidence of the medical practitioners who examined these children, or who offered their opinions upon the observations made by those who did so, was that human intervention is the only reasonable explanation for the injuries;

6. The nature of the injuries were of themselves indicative of the intentional application of force by another person with the physical capacity to cause the harm;

7. The opinions of the medical practitioners are that the injuries to the upper bodies of these children were the result of substantial compressive force to their chest and upper abdomen; and

8. There was no infective, organic, or genetic explanation available for the injuries.

193 The Crown then addressed of section 98 of the Evidence Act, 1995 and submitted that the infliction of the injuries to these children were related events as contemplated by that provision.

194 The Crown initially acknowledged that the injuries to each of these children and the mechanisms by which these injuries "might have occurred" were not identical (emphasis added), however they were, so the Crown submitted, substantially and relevantly similar, and the circumstances in which they occurred were also substantially similar. Accordingly, they constituted "relevant events". The use of the phrase "relevant events" was clearly a typing error.

195 I understand the submission to be that the mechanism by which the injuries to C R and A B are said to have been caused, were substantially and relevantly similar, and occurred in substantially similar circumstances, and that accordingly, the occasioning of those injuries in each case were related events.

196 The issue, to which this "coincidence evidence" was relevant, according to the Crown submission, was whether the injuries suffered by these two children were the result of assaults. This, it was said, was the fundamental issue.

197 The Crown pointed to the following in support of the submission that the events were substantially and relevantly similar: 1) The injuries in each of the children are of themselves indicative of abuse;

2. The mechanisms advanced by the medical practitioners as the method by which the injuries were caused to the upper body of each child were similar, in that both involved the application of substantial compressive force;

3. Both children were very young when the injuries were suffered: C R was injured at some point between her birth on the 6th April 2001 and the 28th June 2001 when she was 2 months and 23 days of age, and A B was injured at some time between the 20th June 2001 and the 29th June 2001 when she was aged 2 years and about 3 months;

4. The injuries to A B were sustained very near to the time when the injuries to C R were discovered; and

5. The children were both living in the one household with the accused and their mother in circumstances where the accused had the opportunity to inflict the injuries.

198 The Crown pointed to the following as the substantially similar circumstances in which it said that the events occurred: 1) In both instances substantial compressive force to the chest of the children causing their injuries was inflicted when the children were living in the same home under the care of the accused and their mother;

2. In each case the accused was alone with the child shortly before the injuries were detected and had the opportunity to inflict them. 199 The Crown points to what is says is the inherent improbability that two children within the same household would suffer injuries which, according to expert evidence, is explicable as the result of deliberate conduct of another person with the physical capacity to apply substantial compressive force to their chests. The rational inference to be drawn, the Crown submits, is that the injuries are not from unrelated and coincidental events.

200 The Crown submissions then move to count 3 in the indictment and what it says are the comparable facts and circumstances of T V. The Crown points to the following facts and circumstances which it says demonstrate that the infliction of the injuries to this child is an event related to the infliction of the injuries to C R and A B: 1) The injuries to T V were of themselves indicative of abuse;

2. age of T V: she was born on the 21st April 2003 and was found to have her injuries when she was no more than 20 days of age;

3. The injuries to her upper body were comparable to those suffered by C R in that both suffered multiple fractures at symmetrical points on each side of the rib cage;

4. Both T V and C R were very young at the time of their injuries;

5. The ages of both T V and C R at the material times and their lack of mobility were such that there is no reasonable basis for concluding that any of their the injuries could have been self inflicted;

6. The mechanism suggested for the infliction of the rib injuries in each case involved the application of a substantial compressive force to the chest; and

7. Fractures to the lower limbs of T V were comparable to the fractures to the lower limbs observed in C R, particularly those to the metaphyses, and according to the opinions of the medical practitioners could have been inflicted in the same manner.

201 Written submissions were made on behalf of the accused, responding to those from the Crown by reference to the paragraph numbers used in the Crown's document. These submissions made the following points: 1) The Crown's observations upon the evidence of Dr. Bickerton, and Dr. McDonald was not strictly accurate, and, the evidence by Dr. McDonald must be read subject to the limitation that his expertise is as a specialist paediatrician and not as a radiologist, the observations from whom he was summarising in his evidence;

2. A representation attributed to A B by her mother regarding the accused, said to have been uttered when the mother first observed the petechial bruising, was to be viewed with caution in light of the motivation the mother might have for misrepresenting what the child might have said;

3. A B was at the material time a toddler, capable of injuring herself;

4. The significance of the accused living in both households has been over emphasised, and in any event there is very little evidence that the accused was left alone with any of the children for substantial periods of time;

5. There are significant differences between the injuries suffered by C R and those observed in A B, and the evidence that the petechial bruising in A B is the result of chest or abdominal compression it is not conclusive;

6. There is a significant difference between the ages of A B and C R;

7. Although the injuries to C R and A B indicate abuse, it cannot be said that abuse by way of compression leading to such injuries was unusual or involved any unusual feature;

8. The difference between the ages of C R and A B, and the time over which it is alleged that C R suffered her injuries in contrast to the relatively brief period in which A B is said to have suffered her injuries, are circumstances of significant dissimilarity;

9. It cannot be assumed that C R was injured at the address where the accused was living with J B, or that the injuries occurred when the accused was present;

10. Contrary to the Crown's submissions, it cannot be demonstrated that the infliction of injuries upon C R and upon A B are related events, for it has not been shown that they are substantially and relevantly similar, nor that they occurred in substantially similar circumstances; and

11. It cannot be said that the opportunity attributed to the accused to have inflicted the injuries to C R and T V has significant probative value, for it cannot be said that the class of persons who could injure the children was limited to those who had contact with the children.

202 Ultimately, the submissions in writing on behalf of the accused offer the concession that the injuries to C R and T V, and the alleged mechanism of the injuries to C R and A B, are substantially and relevantly similar. However, it is submitted that the probative value of this evidence does not substantially outweigh its prejudicial effect, and it is therefore inadmissible by reason of the terms of section 98 of the Evidence Act, 1995.

203 I understand that although this last submission expressly refers only to section 98, it is intended to also embrace section 101 of the Evidence Act.

204 On the 5th May 2006 counsel spoke to their written submissions.

205 The Crown seized upon the concession made by counsel for the accused, and spoke to what it believed was ultimately the only question which remained for decision, namely, whether the probative value of the evidence substantially outweighed any prejudicial effect it may have upon the accused.

206 The Crown Prosecutor submitted that the issue to which this evidence is relevant is whether the injuries suffered by these children were the deliberate acts of some person. This, the Crown said, is the threshold question to be addressed before the question of whether the accused inflicted the injuries arises.

207 The Crown submitted that it is very difficult to identify any prejudice to the accused beyond that which attaches because the evidence is probative of the Crown case, and, that it is difficult to see how the jury might misuse the evidence or how they would treat it as probative of anything other than that for which the Crown tenders it.

208 Counsel for the accused asked that I give particular attention to the nature of the charges, and that they allege the deliberate infliction of significant injuries to very small children, and that such matters are certain to cause in any person of reasonable firmness a sense of revulsion that might deflect the jury from the impartial performance of their function.

209 Counsel submitted that when assessing whether the probative value of the evidence substantially outweighed any prejudicial effect it may have upon the accused, I should apply the following passage from Pfennig v R (1995) 182 CLR 461 @ 481 (citations omitted): Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.

210 I was reminded of what was said in Regina v Ellis (2003) 58 NSWLR 700, and it was submitted that this was a case where the statutory test for the admission of evidence as "coincidence evidence" would not be satisfied unless the common law test explained in Pfennig v R was also satisfied.

211 The various judgements published in respect of the prosecution of Kathleen Megan Folbigg were also raised in the course of argument: R v Folbigg [2002] NSWSC 1127; Regina v Folbigg [2005] NSWCCA 23; R v Folbigg [2003] NSWCCA 17; and Folbigg v The Queen [2005] HCA Trans 657. In the course of the argument the similarities between the facts of that case and the facts before this court were noted.

212 However there are features of R v Folbigg not found in the facts of this prosecution. In this case, as acknowledged by counsel for the accused, when considering the evidence relevant to the charges brought in respect of C R and T V the jury could, even if the matters were tried alone, infer that their injuries were the result of human intervention. In R v Folbigg on the other hand, the Crown Prosecutor conceded that if the charges there presented were prosecuted individually, the evidence available to establish the causes of death and of the apparent life-threatening event upon which they were brought, was not of itself capable of establishing that those were the product of conduct of some person.

213 Counsel also pointed to the absence from this case of statistical evidence such as was available in R v Folbigg to support the application by the Crown.

214 These points of difference, so it was submitted, were sufficient to demonstrate that the Crown could not point to R v Folbigg as authority to support its application for the use of this evidence as "coincidence evidence."

215 Counsel reminded me that the medical practitioners were unable to say how much force was required as a minimum to inflict the injuries that were occasioned to the chests of these children, and submitted that this illuminated a significant difference between the infliction of injuries to A B and the infliction of injuries to the chest of the other two children. It was submitted that, consistent with the medical opinion, the petechial bruising to A and the mild renal failure and hepatitis required a substantial and sustained application of force, not a sudden or momentary application of force, whereas if the injuries to the chests of the other younger children were caused by compression, that would have been of a short and violent nature. This, so it was submitted, was a further point of difference and was against the admission of the evidence proposed as "coincidence evidence".

216 Counsel concluded his submissions by warning of the danger that the jury might not properly apply the criminal standard of proof when considering the guilt of the accused upon each of the charges. This would arise, it was said, if the jury failed to heed directions as to the use to which they may put the evidence relevant only to any one count, and concluded by reference to that evidence and a lower standard of proof therefore, that the accused is guilty of one or both of the other counts in the indictment to which the evidence is not relevant.

217 Counsel for the accused submitted that for these reasons, the balance favoured the defence submission that the charges be tried separately, and, that the evidence offered as "coincidence evidence" be rejected.

218 No issue has been raised as to whether these three children had suffered injuries or had the conditions as observed by the doctors who examined them. I have not overlooked that there has been some contest as to the precise location and the extent of the petechial bruises found upon A B, and as to whether the altered enzyme levels she exhibited were the consequence of the inflammation of her liver or were the consequence of some muscle injury, or the questions raised regarding the ages of the fractures identified to the limbs and ribs of the two younger children. However, subject to those matters, the argument presented on behalf of the accused has been primarily with regard to the inferences to be drawn from the findings made by the medical practitioners rather than as to the existence of the injuries to and conditions of the children found upon their examinations.

219 The admissibility of this evidence as "coincidence evidence" is governed by sections 98 and 101 of the Evidence Act, 1995 and upon consideration of the provisions of sections 135 and 137 of the Act.

220 The Crown gave early notice of its intention to offer this evidence as "coincidence evidence", albeit in the broadest of terms by simply listing the statements and records of interviews of the witnesses upon whom it relied and specifying all of the contents of those documents. This said, no point was taken with regard to the notice and I am not called upon to consider the application of paragraph 98(1)(a) or section 100 of the Act.

221 The coincidence rule expressed in section 98 of the Evidence Act provides, relevantly: (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a)…

(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar; and

(b) the circumstances in which they occurred are substantially similar. (3)…

222 Subsection 101(2) of the Evidence Act provides relevantly: … coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

223 Section 135 of the Evidence Act provides a general discretion to refuse to admit the evidence in the following terms: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial; or be misleading or confusing; or cause or result in undue waste of time.

224 Section 137 of the Evidence Act mandates that the exclusion of the evidence if: Its probative value is outweighed by the danger of unfair prejudice to the defendant.

225 The term "probative value" is defined in the Dictionary to the Act as: … the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. 226 The word "significant" used in section 98 of the Evidence Act has been held to require that the probative value of this evidence must mean something more than mere relevance, but may be less than a substantial degree of relevance: R v Lockyer (1996) 89 A Crim R 457 per Hunt CL @ CL at page 459; or must be of importance or consequence: R v Martin [2002] NSWCCA 332 @ [67] approved by Wood CJ @ CL in R v Folbigg [2002] NSWSC 1127 @ [74].

227 I agree with the submission of counsel for the accused that this is a case where the statutory test for the admission of evidence as "coincidence evidence" would not be satisfied unless the common law test explained in Pfennig v R was also satisfied: Regina v Ellis (2003) 58 NSWLR 700. Accordingly, the evidence should be excluded unless, when taken in conjunction with the balance of the evidence, the only rational explanation is the guilt of the accused in respect of the offence in respect of which the evidence is offered as "coincidence evidence": refer to R v Folbigg [2002] NSWSC 1127 @ [81] and the authorities there cited.

228 I shall now turn to the application of these principles to the evidence led before me.

229 The fact in issue in the case to be presented in respect of each charge is ultimately whether the accused deliberately inflicted the injuries in each case. However, as was submitted by the Crown, the first step in the reasoning process is to resolve the question whether the injuries suffered by the children were inflicted by some person, acting intentionally, the fact of which the jury must be satisfied beyond reasonable doubt before it becomes necessary for them to consider whether, in each case, it was the accused who did so. Ultimately the Crown confined the use to which it wanted to put the evidence offered as "coincidence evidence" to this initial question. In approaching the matter thus, the Crown has not sought to rely upon an assumption that in respect of any one of the charges the evidence available to it establishes that the accused is the person responsible for the infliction of those injuries, as a foundation for the admissibility of that evidence in the proceedings upon the other charges. This approach by the Crown is identical to that which was found to be appropriate by Wood CJ @ CL in R v Folbigg [2002] NSWSC 1127.

230 The phrase "acting intentionally" is used in the sense of conduct that was non-accidental.

231 Upon the evidence presented in the course of the voir dire I am satisfied that there are the following points of substantial and relevant similarity between the events involving the infliction of the injuries suffered by each of these three children: 1) Each of the children was very young at the time when the injuries were alleged to have been sustained. C R was injured at some point between her birth on the 6th April 2001 and the 28th June 2001 when she was 2 months and 23 days of age, A B was injured at some time between the 20th June 2001 and the 29th June 2001 when she was aged about 2 years 3 months, and T V was injured on or about the 9th May 2003 when she was about 20 days old;

2. Within the factual matrix with which I am dealing, the difference between the age of A B and the ages of C R and A B respectively, is in my view not such as to place her in a separate age category. She is the half sister of C R, was living within the same household as the accused at all material times, and was of an age at which she was as susceptible to the intentional infliction of harm as alleged as was her half sister. Moreover, the injuries to A B were discovered on the day immediately following the discovery of the injuries to C R from circumstances in which the accused had the opportunity in each case to have caused them;

3. The injuries to each of the children were sustained when they were living with their mothers and the accused, the father of C R and T V, who was living with J B during 2001 and R S V during 2003, as their de facto partner;

4. The accused had the opportunity to inflict the injuries. According to the evidence, in each case the accused was alone with each child shortly before the injuries were detected, and for periods of time within which such injuries could have been inflicted without him being observed;

5. The evidence of the medical practitioners who examined these children, or who offered their opinions upon the observations made by those who did so, was that the human intervention is the only reasonable explanation for the injuries observed;

6. The nature of the injuries were of themselves in each case indicative of the application of force by another person with the physical capacity to cause the harm;

7. The opinions of the medical practitioners are that the injuries to the upper bodies of each of these children were the result of substantial compressive force to the chest and upper abdomen. With regard to the injuries observed in A B, there was no infective, organic, or genetic explanation available for them. The evidence of the fractures to the lower limbs of C R and T V, according to the opinions of the doctors called, were the result of the application of substantial force when pulling or yanking and perhaps twisting those limbs.

232 My assessment of the evidence relevant to these points has been made with due regard to the submissions of counsel for the accused. I have noted his remarks about Dr. McDonald and Dr. Bickerton, however I do not believe that those observations diminish the probative value of the opinions advanced by them.

233 I agree with counsel for the accused that the representations attributed to A B regarding the accused should be put to one side, however the absence of that evidence does not in my opinion detract from the other matters to which I have referred.

234 As to the capacity of A B, as a toddler, to cause harm to herself in her day to day activities, this proposition does not detract from the evidence of the petechial bruising, mild renal failure and mild hepatitis, the cause of which, according to the opinions led, was compressive force to the chest and upper abdomen. The suggestion that she might have been subject to such a force through the contact she might have with others in the course of her play is no more than that, for there is no evidence of any such activity or event to explain the injuries, and certainly no evidence of any contact that might be described as involving the substantial and sustained application of compressive force to the chest and upper abdomen of this child.

235 I do not agree that the significance of the accused living in both households has been given greater emphasis than is appropriate, and, as I have discussed above, within the factual matrix with which the court is dealing the difference between the age of A B on the one hand and the ages of the younger children on the other does not remove A into another category.

236 The differences between the injuries suffered by A B, compared with those observed in C R and T V are noted, however the point of similarity, which is substantial and relevant in my view, is that each of them suffered injuries to their torsos caused, according to the medical opinions, by the application of substantial compressive force.

237 Consistent with my earlier remarks with reference to R v Ellis, I have approached the question of the admissibility as "coincidence evidence" of the evidence of the injuries to these children, and of the evidence of opinion as to the mechanism of the infliction of the injuries to the torsos of these children, according to the tests posed by the statutory provisions quoted earlier in these reasons, and according to the common law test as explained in Pfennig v R.

238 I am satisfied the test provided by paragraph 98(2)(a) of the Evidence Act for the admission of this evidence as "coincidence evidence" in respect of each of the charges is satisfied.

239 I am also satisfied that the evidence relevant to the facts summarised in sub-paragraphs (1) to (4) above establishes that the infliction of the injuries to each of these children occurred in substantially similar circumstances, and that accordingly the test provided in paragraph 98(2)(b) of the Evidence Act is satisfied.

240 It follows that I am of the view that the infliction of the injuries upon each of these children are related events.

241 I am of the view that the evidence of the injuries sustained by each of these three children, C R, A B and T V, and the evidence of the opinions from the medical practitioners as to the mechanism by which the injuries were occasioned, would in each case rationally affect the assessment of the probability of whether the injuries suffered were inflicted by a person acting intentionally.

242 Moreover, I am of the opinion that the evidence has significant probative value with regard to the issue whether the injuries suffered by the children were inflicted by some person acting intentionally, and therefore passes the test set by paragraph 98(1)(b) of the Evidence Act.

243 I am also satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.

244 I considered carefully the arguments of counsel for the accused with regard to this question, but ultimately came to the view that by confining the use of the evidence to the limited extent to which the Crown sought to make of it, and with appropriate directions warning the jury that they should not make us of the evidence as "coincidence evidence" other than for their determination as to whether they are satisfied beyond reasonable doubt that the injuries to these children were, in each case, inflicted by another person acting intentionally, any risk that the jury might use the evidence for some purpose beyond that limitation would be addressed.

245 Accordingly: 1) In respect of count 1: I am satisfied that when considered in conjunction with the evidence which is relevant to this count, the evidence of the injuries to the lower limbs and the chest of T V, and the evidence of opinion as to the mechanisms by means of which the injuries were occasioned to her lower limbs and her rib cage, and the evidence of opinion as to the mechanism by means of which the injuries were occasioned to the face, kidneys and liver of A B, establishes that the only rational explanation is that the injuries to C R were inflicted by another person acting intentionally;

2. In respect of count 2: I am satisfied that when considered in conjunction with the evidence which is relevant to this count, the evidence of opinion as to the mechanisms by means of which the injuries were occasioned to the rib cages of C R and T V, establishes that the only rational explanation is that the injuries to A B were inflicted by another person acting intentionally; and

3. In respect of count 3: I am satisfied that when considered in conjunction with the evidence which is relevant to this count, the evidence of the injuries to the lower limbs and the chest of C R, and the evidence of opinion as to the mechanisms by means of which the injuries were occasioned to her lower limbs and her rib cage, and the evidence of opinion as to the mechanism by means of which the injuries were occasioned to the face, kidneys and liver of A B, establish that the only rational explanation is that the injuries to T V were inflicted by another person acting intentionally.

246 These findings also addresses the test required by section 137 of the Evidence Act. Furthermore, I am satisfied that the evidence will not be unfairly prejudicial to the accused, will not be misleading or confusing, and will not cause or result in any undue waste of time. Accordingly, I do not propose to exercise the discretion provided in section 135 of the Evidence Act.

247 In reaching this decision I have also considered the paragraphs in subsection 192(2) of the Evidence Act. I am of the view that the admission of this evidence as "coincidence evidence" will not impact adversely upon the length of the proceedings, that it will not be unfair to the accused, and that the evidence is of importance in the proceedings, specifically in the case being presented by the Crown. I have not overlooked the fact that these are criminal proceedings. As I have discussed above, I am satisfied that appropriate directions to the jury as to their use of this evidence as "coincidence evidence" when considering the issue of whether the injuries were inflicted by a person acting intentionally, would be adequate to ensure that the evidence is not misused in the course of their deliberations.

248 As noted earlier in these reasons, the question of the admissibility of this evidence as "coincidence evidence" is inextricably linked to the question of severance. Section 29 of the Criminal Procedure Act, 1986 provides in subsection (1): A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same person in any of the following circumstances:

(a) … (c) the offences arise out of the same set of circumstances; or (d) the offences form or are part of a series of offences of the same or a similar character. 249 For the reasons that the infliction of the injuries to each of these children are related events, I am of the view that the offences charged in counts 1 and 2 in the indictment, concerning C R and A B respectively, are offences that arise out of the same set of circumstances, and together with the offence charged in count 3 in the indictment, are offences that form or are a part of a series of offences of the same character, and that in the proper exercise of my discretion I should order that the proceedings for these three offences should be heard and determined together.

250 I am satisfied that the interests of justice require that this be so: subsection 29(3) Criminal Procedure Act, 1986.

251 I am not of the opinion that the accused will be prejudiced or embarrassed in his defence by reason of being charged with these 3 counts in the same indictment, or, that it is for any other reasons desirable to the accused be tried separately upon any one of the 3 counts: subsection 21(2) Criminal Procedure Act, 1986.

252 It is for these reasons that I made the orders delivered in court on the 8th May 2006.

Addendum To meet the prohibition against publication of the names of the children in respect of whom the accused has been charged, as provided in section 11 of the Childrens (Criminal Proceedings) Act 1987, the children and their mothers are referred to by their initials.

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.