Judgment on the ADMISSIBILITY OF TENDENCY EVIDENCE
HIDDEN AJ: The accused, BT, is on trial for the murder of his infant daughter, HT. HT was 8 weeks old at the time, and she met her death at the home where the accused lived with her mother, TP, who is the accused's partner. Also living at the home was their older child, JT, who was just under 2 years old at the time. In addition, there were two children of TP from a previous relationship, TF, then aged 6 years, and CF, then aged 4. Other members of TP's family also lived there, including her mother, GP.
HT was born prematurely on 14 June 2014 and remained in hospital until 29 June 2014, when she was discharged into the care of her parents. It is the Crown case that over a period thereafter the accused inflicted violence upon her until the afternoon of 11 August 2014, when an act of violence on his part led to her death. At the time of the incident, the only persons at the home were the accused, HT and JT. The Crown case as to the manner in which the death was caused is, accordingly, circumstantial.
It was in the early hours of 12 August 2014 that TP observed that HT was unconscious and apparently not breathing. After a 000 call, ambulance officers attended the home. The baby could not be resuscitated and was pronounced dead on arrival at Westmead Childrens' Hospital.
A post mortem examination was conducted the following day by Dr Issabella Brouwer, forensic pathologist. Dr Brouwer found the direct cause of death to be blunt force craniospinal injury, noting a substantial injury to the back of the head which caused an occipital skull fracture. The doctor also noted retinal haemorrhages, and multiple injuries to the face and head indicative of blunt force trauma. All the child's ribs were fractured, the fractures being of varying ages. There were also apparently associated injuries to her liver and thymus.
The multiple injuries to the child's face and head, like the rib fractures, were of varying ages. This indicated to Dr Brouwer that they had been inflicted over a period of time.
Over a series of interviews with police the accused gave an exculpatory account of an incident in the afternoon of 11 August. The effect of that account was that JT had struck HT to the face with a hairbrush, causing an injury in the area of her left eye. The accused had picked her up, and she slipped from his grasp and fell to the floor. It is the Crown case that this account is false, relying upon Dr Brouwer's opinion that it does not explain the injuries observed in the post mortem examination. As to other injuries observed by Dr Brouwer, he described an occasion on which the other children had jumped on HT on a bed by accident, and an incident when HT had rolled off a bed onto the floor.
The Crown sought to lead evidence of violence inflicted by the accused prior to the incident upon HT, and also JT, TF and CF. This was tendered as tendency evidence, alleging a tendency on the part of the accused to inflict violence upon HT and other children in his care. The evidence was objected to. I allowed the evidence in respect of HT, but not in respect of the other children. These are my reasons for that decision.
On 21 August 2014, TF took part in a videotaped interview by a police officer. She described a persistent pattern of violence which she saw inflicted upon HT by the accused. She said that on occasions when HT was crying in her cot, he would pick her up and throw her on to her mother's bed. She described that bed as "very hard." She said that on the morning of 11 August 2014, she saw him pick HT up, hold her firmly with one hand on her back and the other on her stomach, pushing hard against her stomach so that she "stopped breathing", and then throw her onto the bed. The effect of other answers she gave in the interview is that this is how he threw her on to the bed on the other occasions when she saw that happen.
TF also described occasions when the accused would shake HT "up and down… so her brains can go weird… ." She said that on 11 August he shook her, holding her by the head, before throwing her on the bed.
In a statement to police of 1 October 2014, TP described occasions on which she saw the accused shake HT, holding her around her torso. She understood this to be only "playful", but it appeared to frighten the child and she warned him against it because she knew that shaking a baby could cause harm. When TF's account of the accused throwing HT onto the bed was raised with her, she denied that he would "literally pick her up and throw her". Rather, she said that he "used to swing her and then put her down on the bed."
Apart from Dr Brouwer's post mortem report, I also received on the voir dire her expert certificates of 24 May 2016 and 5 May 2017. These were prepared in response to the accused's account in his police interviews. In the certificate of 24 May 2016 the doctor expressed the view that the injuries documented at the autopsy "cannot be explained by a simple fall from an adult's hands from waist height, or by the impact of a hairbrush to the face of the infant". Noting that the injuries had been inflicted over a period of time during the child's short life, she said that they could not be explained "within the context of the information provided" by the accused.
In the certificate of 5 May 2017 Dr Brouwer opined that it was "highly unlikely" that the fatal injuries were a result of a fall from belly height onto a hard wood floor covered with a carpet. She confirmed that those injuries were caused "by blunt force injury to the back of HT's head to the extent that the force fractured her skull and cause[d] the subsequent injury." The force of that impact "most likely resulted in the hyperextension/flexion injury of HT's neck due to the forceful impact to the back of her head." The retinal haemorrhages supported the findings of non-accidental head injury. While unable to exclude the possibility that other episodes of injury, such as violent shaking, may have contributed to those retinal haemorrhages, she was of the opinion that they were "most likely associated with the same event that caused the occipital skull fracture, the brain and neck injuries."
She also expressed the view that the features of the skull fracture, the associated soft tissue injuries and the absence of visual injuries to the skin surface suggested "a focal impact to the back of HT's head onto an object, most likely with a large firm, but soft surface area for example the arm rest of a couch or the soft padded surface of a nappy changing map."
Dr Brouwer noted the "acute or possibly subacute fractures of all HT's ribs to both the front and back of her chest." These types of rib fractures, she reported, "are typically caused by forceful front to back pressure of an adult's hands when grabbing an infant around the chest." The injuries to HT's thymus and liver were "further evidence of the extent of the force used" in doing so. She expressed the same view about the older rib fractures, describing them as "typical of force being applied by adult hands encircling the chest with front to back pressure resulting in rib fractures at these locations." She added that an infant is often held in such a grip when being shaken by an adult.
As to the mechanism of death, Dr Brouwer concluded:
When regarding the combination of the injuries described above and considering the possible mechanism by which these injuries were sustained, I would like to postulate the following as a likely scenario whereby HT sustained the injuries: HT was grabbed around the chest by an adult using both hands to encircle her chest, bringing the back of her head down forcefully onto a surface with a surface area as described above, causing the skull fracture, brain injuries, neck injuries and retinal haemorrhages. The rib fractures, injuries to the thymus and liver resulted from the force of the hands encircling and squeezing the chest front to back.
The Crown prosecutor referred to authority on the admissibility of tendency evidence, including the recent High Court decision of Hughes v The Queen [2017] HCA 20 and the decision of Johnson J in R v LN; R v AW (No 1) [2017] NSWSC 119, a case bearing some similarity to the present case. It is unnecessary to examine this authority because the issue at hand requires no more than an application of the relevant provisions of the Evidence Act 1995 against the background of well established principles. In criminal cases evidence sought to be led as tendency evidence must not only have significant probative value: s 97, but that probative value must substantially outweigh any prejudicial effect it may have on the accused: s 101.
The evidence of the pattern of violence inflicted by the accused on HT, in the light of the medical evidence, is a crucial plank of the Crown's circumstantial case. As the Crown prosecutor pointed out, the medical evidence is consistent with TF's description of that pattern of violence, including the fact that the firm mattress on her parents' bed is the type of surface described by Dr Brouwer upon which HT might have been thrown. It is by that evidence that the Crown seeks to establish the circumstances of the child's death. In my view, it passes the tests posed by both s 97 and s 101. Its probative value is high, and substantially outweighs the prejudicial effect which, undoubtedly, it could have upon the accused. Of course, the jury will be directed as to how it should be approached. Counsel for the accused, Mr White, maintained his objection to it but acknowledged the difficulty he faced.
Accordingly, the evidence on this aspect was admitted.
Evidence of violent conduct of the accused towards the other three children was available from TF herself, the electronically recorded interview with CF, a statement of GP, and an expert certificate of Dr Susan Marks, a paediatrician. In her interview, TF said that the accused "always smacks" herself, CF and JT. She described him smacking her hard "under my legs" with his hand and sometimes with a cricket bat. She said that he smacked her "for nothing", adding that she never did anything.
In his interview, CF said that the accused "always" smacked him, although he made the same complaint about his grandmother. He would smack him on the leg. He also said that the accused would smack JT on the head. He said that he would do so "with a can of glass" but, when asked to clarify that, said "with his hand". GP, in her statement, recounted an occasion in 2012 when she saw the accused hit CF "across the bum". The child was only two years old at the time, and she thought the smack was too hard.
Dr Marks examined JT after the Department of Community Services assumed care of the children on 12 August 2014. She noted bruising and other injuries to his face, bruising on his lower abdomen and left lower leg, and areas of scarring on his right hand. She noted that the bruising to the leg could be found in children as a result of "normal activity and play." She reported that bruising to the abdomen is less common from normal activity and that the scars to the right hand were unexplained. Her conclusion as to the facial injuries however, was flawed by having been supplied with a mistaken explanation for them. In a walk through interview on 14 August 2014, the accused said that, believing that JT had struck HT to the face with the hairbrush, he had hit him on the bottom with that brush. Dr Marks wrongly understood that he had hit JT on the face with the brush. That being so, Dr Marks' certificate provides no relevant explanation for the facial injuries.
This violent conduct towards the three children is disturbing, but it is vastly different from the pattern of violence said to have been perpetrated against HT. The circumstances of it are unknown, and there is force in Mr White's submission that it might have been meted out as chastisement (although, perhaps, of an inappropriate kind). It does not appear to me to have any real bearing upon the central issue in this case. I am not persuaded that it has significant probative value but, even if it could be seen to have, its probative value does not outweigh the prejudicial effect it could have on the accused. On this aspect, the Crown prosecutor acknowledged that she was not on the firmest of ground.
Accordingly, this evidence was rejected.
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Amendments
06 December 2017 - Restriction removed
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Decision last updated: 06 December 2017