Evidence - tendency evidence - significant probative value - potential prejudice - Crown case dependent solely upon tendency and opportunity
Legislation Cited: Evidence Act 1995 - ss 55
56
Source
Original judgment source is linked above.
Catchwords
Evidence - tendency evidence - significant probative value - potential prejudice - Crown case dependent solely upon tendency and opportunity
Legislation Cited: Evidence Act 1995 - ss 5556
Judgment (8 paragraphs)
[1]
Introduction
On 11 May 2016, the accused (CJ) was arraigned before me on an indictment charging that at some time between 13 June 2014 and 13 July 2014 she recklessly caused grievous bodily harm to MJ, her infant son.
MJ was born on 2 April 2014. CJ, MJ, MJ's father (MS) and his grandmother (MP) all lived together in the Coffs Harbour region.
The following summary of facts and record of various medical procedures, investigations and opinions is taken primarily from a preliminary report of Dr Vimpani, a child protection paediatrician, tendered by the Crown on the voir dire.
[2]
Medical Evidence
On 13 July 2014, MJ was admitted with seizures to Coffs Harbour Hospital. An MRI conducted at Coffs Harbour Hospital suggested multifocal infarcts of uncertain cause and paediatric neurological opinion was sought as to the cause of the seizures. The seizures had been noticed prior to admission to hospital and comprised observation of MJ having a floppy head and neck, his eyes rolling back into his head, twitching of his arms and legs, high-pitched screaming followed by a very unusual cry and extreme irritability that could not be comforted easily. It was noted on admission that he had a bulging fontanelle (the firm membranous tissue that covers the brain in the midline of the head).
An ultrasound was done suggesting the ventricles were at the upper limit of normal size. The MRI was reported as showing left frontal and parieto-occipital (back and side of brain) restricted diffusion and there were concerns that this represented multifocal infarction (death of brain tissue). His blood pressure was observed to have been elevated slightly, consistent with raised intracranial pressure. It was noted by doctors that MJ had been born at term by caesarean section because of a breech presentation and was reported to have been developing well with good head control.
Around midnight on 15 July 2014 MJ was transferred to John Hunter Children's Hospital and reviewed by Dr Gopi Subramanian, a paediatric neurologist. Arrangements were made for a repeat MRI (under general anaesthetic) and an EEG. MJ was treated with broad-spectrum antibiotics to cover the possibility of an infective illness and these were continued. A lumbar puncture was organised to coincide with the general anaesthetic for the repeat MRI which was eventually done on 17 July, after MJ had experienced further seizure activity on 16 July requiring anticonvulsant medication. An EEG done on 16 July showed epileptic focal activity in the left posterior parietal region only.
Also on 17 July 2014, arrangements were made for MJ to be reviewed by an ophthalmologist and that doctor's report revealed bilateral multiple retinal and pre-retinal haemorrhages with no evidence of retinal detachment (the retina, red in colour, is at the back of the eye). These findings were suggestive of a non-accidental/shaking type injury.
Because of concerns that the child's illness could be due to an inflicted head injury Dr Subramanian contacted Dr Graham Vimpani a consultant child protection paediatrician. MJ was initially seen by Dr Vimpani's colleagues, Drs Piper and Turner. They noted the previous history and the absence of any history of trauma. They obtained a history from the parents that MJ had been unsettled initially after birth, which they thought was just normal baby behaviour, but contributed to by lots of disruptions, including CJ's readmission to hospital with a wound infection and MJ's hernia operation in early June 2014. The father and mother acknowledged that the father had gently bounced MJ on his knee on occasions. No other history suggestive of trauma was obtained.
The repeat MRI carried out on 17 July 2014 was reviewed on 22 July by Dr McDougall, the paediatric radiologist at John Hunter Hospital. He determined that the MRI showed bilateral supratentorial subdural haematomas (collection of blood under the outer membrane covering the brain, inside the bony skull), predominantly lying posteriorly (at the back and upper part of the brain). They were marginally larger on the left than the right. There was a further subdural haematoma lying infratentorially, posterior to both cerebral hemispheres (the lower part of the brain at the back). The findings suggested sub-acute subdural haemorrhages somewhere in the region of two days to 2 weeks old (that is, anywhere between 3 and 15 July 2014). They appeared to all be of the same age. There was also a tiny amount of subarachnoid (the thin inner tissue lining covering the brain) blood demonstrated superiorly over the left frontal lobe. There was restricted diffusion at the grey white matter interface in the left parietal, left occipital and temporal lobes and to a lesser extent the right parietal, occipital and temporal lobes with relative sparing of the frontal lobes. These findings suggested cytotoxic oedema possibly due to hypoxaemia/ischemia. Restricted diffusion secondary to seizures was considered less likely due to the location of the grey white matter interface and distribution throughout both cerebral hemispheres. Dr McDougall also noted that the bilateral retinal haemorrhages were also visible which is relatively unusual in an MRI suggesting that these haemorrhages were severe. Dr McDougall concluded that the findings were suggestive of non-accidental injury.
A whole body bone scan (radioisotope study) was done to determine whether there was evidence of any fractures but none were found. A skeletal survey was also undertaken which was completely normal, with no evidence of any bone damage. Blood tests were done to investigate the possibility of a bleeding disorder contributing to these findings but all of these investigations were completely normal. MJ gradually improved clinically during the later phase of his admission after the second MRI had been done. There was no asymmetry noted in limb movements and some of the visual difficulties with him fixing on objects and following them that had been observed earlier on had disappeared by the time of his discharge. Since his discharge MJ has been enrolled in the brain injury rehabilitation program based at John Hunter Children's Hospital.
Dr Vimpani recorded in his preliminary report that the case of MJ was discussed with colleagues in Sydney and the United States to whom the MRI images and retinal camera photographs of the retinal haemorrhages were provided. He reported that all those colleagues reached the same conclusion; that in the absence of any other explanation for an injury, these findings were most likely due to the infant having been vigorously shaken, thereby acquiring the features of the "shaken baby syndrome".
Shaken Baby Syndrome is described in an article from the Journal of Child Abuse and Neglect, attached to Dr Vimpani's preliminary report, as "a form of intentional injury to infants and children inflicted by violent shaking or without concomitant contact with a hard surface, resulting in head trauma including subdural hematomas, diffuse axonal injury and retinal haemorrhages but also often fractures of the long bones or ribs, with little or no external evidence of trauma". In this condition, severe retinal haemorrhages and subdural haematomas are found often accompanied by fractures to the posterior ribs. The absence of rib fractures does not rule out this condition.
The diagnosis of Shaken Baby Syndrome in Dr Vimpani's opinion and, he reports, in the opinion of the unidentified colleagues he consulted, is "beyond any reasonable doubt". No explanation is provided by him to reconcile that level of apparent certainty with the earlier, more equivocal, expression of opinion in his statement that the conclusion of he and his unidentified colleagues based upon the medical findings was that, in the absence of any other explanation, the injuries were "most likely" due to the infant having been vigourously shaken.
Finally, Dr Vimpani proffers the observation that often children with shaken baby syndrome have an impact injury to the head as well (scalp bruising, with or without a fractured skull), but there was no evidence of this, either on examination or through any of the investigations done, on MJ.
[3]
Investigation
Neither CJ nor MS could provide any reasonable explanation as to how the injuries were sustained, and the matter was referred to the victim abuse squad, Coffs Harbour for further investigation.
On 22 July 2014 investigators spoke both with CJ and MS at John Hunter Hospital.
CJ participated in an electronically recorded interview with police on 22 July 2014. MS participated in an electronically recorded interview with police on 23 July 2014. The police also conducted an electronically recorded interview with MP on 25 July 2014.
Also on 25 July 2014 investigators identified a witness, EP, then aged 14, who in the course of an electronically recorded interview conducted on 28 July 2014 disclosed that in the weeks leading up to 13 July 2014 she had visited CJ at her home and that during the visit EP observed CJ handle MJ in a way she described as "shaking" when he would not settle. At the relevant time EP and her family were immediate neighbours of the accused and her family. Whatever it was that EP had observed CJ do, it did not have a sufficiently profound effect on her as to motivate her to mention it to anyone at the time.
EP was identified as a witness in circumstances where, after the medical opinion that the baby's injuries had possibly been caused by shaking had been publicly disclosed, EP's mother asked her the following suggestive question: "Have you ever seen [CJ] shake the baby". So prompted, EP then reported the observations that are the subject of her recorded interview on 28 July.
In his preliminary report, referred to above, Doctor Vimpani recorded that the article attached to his report suggests that children eventually diagnosed with shaken baby syndrome often suffer a series of shaking episodes before they sustain injuries serious enough to result in their presentation to hospital. Based upon that observation, he goes on to add that the description provided by EP of her observations of the handling of the child some weeks before his hospital admission "is entirely consistent with what is known about the natural history of this condition". He further concludes, without expressing any foundation for the opinion, that it is probable that MJ suffered a severe shaking injury on the morning of 13 July 2014, prior to him being found in his cot with unusual screaming. It is noteworthy to contrast this unfounded assertion with the timeframe suggested by Dr McDougall's analysis of the MRI which, as earlier recorded, allowed for the possibility that the injuries were inflicted sometime in a two week period commencing from about 3 July.
On 26 August 2014 CJ and MS each separately participated in another electronically recorded interview with investigators. On 27 August 2014 police arrested CJ and at some subsequent point she was charged with the offence the subject of the present indictment.
[4]
Tendency Notice
The Crown served on the accused a tendency notice dated 13 April 2016. The substance of the tendency evidence which the Crown seeks to adduce is contained in identified passages of the recorded interview with EP. The passages of the interview identified in the tendency notice are questions and answers 139-149, 206-287, 312-321, 333-346, 426-429, 439-459 and 483-485. According to the notice, the tendency sought to be proved is expressed as a "tendency to act in a particular way, namely to shake her baby in a vigorous manner".
The accused objects to the tender of the tendency evidence. There are four primary grounds of objection. Each depends upon the operation of different provisions of the Evidence Act 1995 (the Act). First, it is objected to on the grounds of relevance [s 55 and 56]. Secondly, it is submitted that even if it is relevant, the evidence does not have significant probative value [s 97]. Thirdly, it is argued that, in any event, the probative value of the evidence does not substantially outweigh the prejudicial effect it may have on the accused [s 101]. Finally, it is argued that the evidence must be excluded on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused [s 137]. I shall deal with the first three of those objections in turn. It seems to me that s 137 adds nothing to an objection founded upon the requirements of s 101, and I will deal with questions of prejudice and the relative balance between it and probative value when dealing with s 101.
[5]
Relevance
The tendency evidence the Crown wishes to adduce consists of the observations by EP about how she says CJ handled MJ at some unidentified time in the month prior to MJ's admission to hospital. Those observations predominantly comprise physical demonstrations by EP of how she says CJ handled the baby, firstly done just using her hands and then, later in the interview when pressed further by the investigating officers, with a plastic doll as a prop.
As I understand it, it is common ground that handling a baby in the manner demonstrated by EP would not have caused injury to MJ and certainly did not cause the injuries MJ was suffering on his presentation to the hospital on 13 July 2014.
Proof of the existence of a particular tendency goes nowhere without more. Tendency evidence is propounded as a stepping-stone, which provides a foundation for an inference. It is by its nature indirect evidence, which allows for a form of syllogistic reasoning. Generally, the inference is to the effect that because a person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party on an occasion the subject of the proceedings: Hughes v R [2015] NSWCCA 63, at [160]; Elomar & Ors v R [2014] NSWCCA 303, at [359].
The Court must approach its assessment of the relevance and, if relevant, the extent of the probative value of the evidence on an assumption it is accepted. In the present case, I think that necessarily means not only that the jury accept the witness as a witness of truth but, in addition, are also prepared both to characterize the event she observed in the way contended for by the Crown (that is, that the way CJ handled the baby on that occasion correlates to some degree with the mechanism or act that ultimately lead to the injuries suffered by the child) and are prepared to find that the accused had the asserted tendency (to shake her baby in a vigorous manner).
On the assumption that it is accepted in the manner just outlined, the tendency evidence is, by its nature, capable of affecting the assessment of the probability of the existence of a fact in issue in the proceedings. That is, the evidence could affect the assessment of whether the injuries to the infant were caused by the accused shaking the baby. For present purposes the question of capacity per se involves assessing the connection between the evidence and the particular fact(s) in issue it is said to inform. Unlike the assessment of whether evidence has significant probative value, the assessment of capacity at the level of relevance seems to depend less, if at all, upon what other evidence supplements the existence of the asserted tendency in proof of the fact(s) in issue.
The accused argues that because the handling of the baby described by EP would not have caused the subject injuries, it follows that the evidence cannot have the capacity rationally to affect the assessment of the probability of the Crown's assertion that CJ was responsible for infliction of the injuries.
It was also argued on behalf of the accused that the proposed tendency evidence cannot have the capacity rationally to affect the assessment of the probability of the accused having caused the injuries because there is "no direct evidence of the 'actus reus'" and, so it is submitted, the proposed tendency evidence impermissibly "begs the question".
In aid of this latter submission the accused refers to the decision of Simpson J (as her Honour then was) in R v Gale & Duckworth [2012] NSWCCA 174, in particular at [37]. That was a case involving the slightly different but certainly analogous area of coincidence evidence.
In that case her Honour found that the Crown case, which depended upon the assertion of identified similarities in support of proof of facts in issue, assumed the very facts it sought to prove. As her Honour held, "similarities for the purposes of s 98 must be capable of proof by means other than the 'facts' sought to be established": at [37].
It is submitted for the accused here that in the usual case of tendency evidence, there is direct evidence of the "actus reus". For example, it was submitted, in a sexual assault case, the victim alleges an act done by an accused and the Crown seeks to support proof of that conduct by the accused by establishing the existence of a tendency on the part of the accused.
Put more colloquially, but no less forcefully for it, it was submitted that in the present case, like in Gale & Duckworth, what the Crown is endeavouring to do by the tender of the evidence of EP is to "bootstrap an event… to a position where it supports a hypothesis of which there is no direct evidence".
I have considerable sympathy for the submission on behalf of the accused, because I do think that there is an inviting but potentially fallacious circularity in the way the Crown case is put, about which I will say more shortly. However, I think the situation under consideration in Gale & Duckworth, because it was concerned with the particular terms of s 98 and that section's reference to similarities, is distinguishable from the present case and the need here to attend to the different requirements of s 97.
Approaching the matter on the assumption that a single incident is sufficient to establish a "tendency" to act in a particular way (about which I will also say a little more shortly), and the further assumptions that the proffered tendency evidence is accepted and the tendency propounded in the Tendency Notice established, I think on any conventional analysis the evidence is relevant and, accordingly admissible, subject to satisfaction of the threshold requirements of ss 97 and 101 of the Act. I think the arguments raised by the accused against the relevance of the evidence are more apt to engage with a consideration as to whether the evidence has significant probative value or whether its probative value substantially outweighs the prejudicial effect of the evidence on the accused and I will consider them in those contexts.
[6]
Significant probative value
It is insufficient for present purposes that the evidence be merely relevant. The next threshold for its admission, prescribed by s 97 of the Act, requires that it have significant probative value.
In written submissions, the Crown contended that the purpose of the tender is to support the contention that "the conduct of [CJ] as outlined by EP is consistent with conduct which was repeated by [CJ] at a time following 2 July 2014 and gave rise to the injuries sustained by MJ". In effect, the ultimate purpose of the tender of the contested evidence in this case is, by a process of inferential (though arguably circular) reasoning, to identify the accused as the person responsible for the act or acts which resulted in the injuries to MJ. It should be noted as an aside that there is a real issue about precisely when EP's observations were made, but it seems to be accepted that it was at some time within a month of MJ presenting at hospital with the injuries that found the present charge. I say the reasoning is arguably circular, because in the way expressed in the proposition taken from the Crown's written submissions the contention assumes the conduct was repeated by the accused on the occasion resulting in injury to the baby.
The following additional oral submission was made on behalf of the Crown on the voir dire concerning the probative value of the evidence:
CROWN PROSECUTOR: Certainly in relation to the probative value of the evidence, the conduct is of a type and is consistent with a form of … baby shaking syndrome. True it is that that evidence given by EP is not to the extreme … version of what one might expect as Professor Vimpani has indicated. Nevertheless, it is still probative because the Crown says this is the conduct that was exhibited by this mother in the presence of another person at a time when the child appeared to be unsettled, and it is consistent with the scientific literature that this is the type of triggers that occur over a space and course of time that can lead ultimately to a child then being presented to am emergency department with the injuries which are consistent with shaken baby syndrome, and in this particular case, are exhibited by MJ. [emphasis added]
There is no other explanation for his injuries. There is no doubt that he has been, according to the medical diagnosis and analysis, that this is evidence of some mechanism of baby shaking being applied to that young infant. [see Transcript p 22; see also pp 23-4]
The "logic" of the Crown case appears to adopt the following steps. That is, the Crown will ask the jury to reason in the following way.
1. The baby suffered traumatic injuries.
2. Medical evidence attributes the cause of those injuries to the baby having been mis-handled in a way described as "vigourous shaking".
3. The description given by EP of what she observed correlates to some degree with the mechanism that ultimately leads to the injuries suffered by the child; that is, it "could be" described as consistent with shaking (requiring the jury to assess the description and characterize the event described).
4. Expert opinion suggests recognition in the literature of a phenomenon called "shaken baby syndrome" which, in some cases, involves a history of prior shaking leading up to a child's ultimate presentation at hospital with traumatic injury.
5. What EP observed was an example of a course of conduct by the accused towards her infant son that is "entirely consistent with what is known about the natural history" of shaken baby syndrome. In other words, expressed in the combined language of the Act and the Tendency Notice, the accused had a tendency to act in a particular way, namely to shake her baby in a vigorous manner.
6. During the period within which the injuries were likely caused, the accused (among others) had access to the baby.
7. Ultimately, by resort to the combination of the asserted "tendency" of the accused and her access to the baby, the jury will be asked to conclude that it was the accused who was responsible for the infliction of the baby's injuries.
The "logic" of the present case is tantamount to saying that the accused is the sort of person who was likely to have committed the offence alleged against her and she had opportunity, so it must have been her that caused the injuries.
The first part of that proposition may simply reflect the conventional approach to the use of tendency evidence.
However, at least one feature which distinguishes this case from what might be called a more conventional tendency case, is that the only thing additional to the asserted tendency relied upon is opportunity.
Reliance upon tendency evidence ordinarily occurs in a situation where there is some additional evidence of particular conduct by the accused on the occasion the subject of the offending, or some evidence beyond mere opportunity, be it direct or circumstantial, connecting the accused to the offending. The tendency evidence then stands as some support for that additional evidence.
Another significant feature of this case is that proof of the asserted tendency relies upon a single incident, and an equivocal one at that.
The Crown's written submissions highlight the equivocal nature of the proposed tendency evidence. At its highest the evidence of EP accords with the Crown's description of it as EP having "witnessed [CJ] handle her infant son in a manner which could be described as consistent with 'shaking'": Crown's written submissions, p 2.
Reliance upon a single incident is not novel, but perhaps assumes greater significance in this case than it ordinarily might having regard to the fact that, apart from the existence of opportunity, the case depends entirely upon the asserted tendency.
On the present state of the law in this State, it is not necessary that conduct occur on a number of occasions in order to be admissible as tendency evidence. There is no need to demonstrate a pattern of behaviour or modus operandi: Aravena v R [2015] NSWCCA 288, at [85]-[88], adopting the remarks of Campbell JA in R v Ford ([2009] NSWCCA 306) and cases subsequently endorsing his Honour's remarks. In Aravena, it was held that a single incident is sufficient to establish a tendency. With the greatest respect to their Honours, it does not seem to me to follow necessarily, if at all, either from R v Ford and those cases subsequently endorsing it or, more particularly, as a matter of ordinary English usage, that a single incident might sensibly constitute a "tendency" as comprehended by s 97 of the Act. However, that is what the Court (Beazley P, Hall and Wilson JJ) in Aravana concluded and I am of course bound by it.
In the context of considering whether the evidence in that case had significant probative value, their Honours went on to say, at [89]:
"A single incident some years before may provide a weaker foundation than might have been the case for a tendency sought to be proved by evidence of multiple instances of relevant conduct or conduct that had occurred in the more recent past to the event in issue. However, such considerations did not deprive the evidence… of significance in the sense contemplated by s 97…"
In terms of its capacity for proof of the ultimate issue, the tendency evidence proposed in this matter, both viewed in isolation and in combination with the other material intended to be relied upon by the Crown, is inherently very weak. It seems to me that it might reasonably be said to be weak in a sense analogous to the example of a weak identification used by JD Heydon QC, adopted by the High Court in IMM v R [2016] HCA 14 (at [50]).
However, with the greatest respect to their Honours in the plurality in IMM, it is far from clear to me what was intended by resort to that example, as somehow distinguishing the approaches formerly favoured by the Victorian Court of Appeal in Dupas v R ([2012] VSCA 328) on the one hand and by the NSW Court of Criminal Appeal in R v Shamouil ((2006) 66 NSWLR 228) on the other. In particular, if this were the point of the example, it is not clear where one might sensibly draw a dividing line between evidence that is weak on the one hand, and apparently apt to be considered on that basis in the predictive and evaluative assessment required by s 97, and unreliable on the other, and accordingly beyond the legitimate scope of that assessment.
The following are some of the matters that seem to me to contribute to the substantial weaknesses of the tendency evidence proposed in this case.
Firstly, it involves a single instance of handling the baby in a way which the Crown submits "could" be described as "consistent with" shaking. As evidence of shaking it is weak. It could equally be consistent with attempting to soothe an upset child by distracting him with motion. As I have already outlined, the Crown's written submissions expressly recognised the equivocal nature of the proposed tendency evidence.
Secondly, related to the first point, when first asked to demonstrate how CJ had handled the baby on the occasion in question EP's demonstration was entirely benign. It is only after being pressed by the interviewing police and being provided the doll and asked substantially leading questions does the demonstration get a little more animated.
Thirdly, the handling of the baby observed by EP was not so significant, either in its nature or its effect, as to have caused EP to say anything at the time, either to CJ, or to EP's mother, nor to anyone else, and did not do so until prompted by the pointedly suggestive question asked by her mother after the medical opinions as to the possible cause of the injuries being "baby shaking" came to light.
The factors I have outlined contribute to the characterization of the evidence as weak. Some might regard them as going to the question of reliability, which as I have recognised is beyond the scope of the assessment I must undertake.
For present purposes, rightly or wrongly, I put to one side the three matters I have outlined, on the basis that at least arguably they go to reliability and are accordingly matters for the consideration of the tribunal of fact. There are other significant matters, in my view, that bear upon the present assessment.
Spigelman CJ in Shamouil said in relation to the definition in the Act of probative value: "Evidence has probative value… if it is capable of supporting a verdict of guilty": at [62].
Capacity to support a verdict of guilty must, in the context of the definition, mean that the evidence will be rationally or reasonably capable of supporting a verdict of guilty. The corollary in the context of a criminal trial is that the evidence must be rationally, or reasonably, capable of supporting a verdict beyond reasonable doubt.
Can tendency evidence comprising a single incident be characterized as rationally or reasonably capable of supporting a verdict of guilty beyond reasonable doubt if the only other evidence sensibly supporting it in proof of the ultimate fact is the existence of opportunity, in particular when there were others who also had opportunity and whose involvement cannot rationally be excluded beyond reasonable doubt? I think the answer is that it cannot, or at least cannot in all the circumstances of this case.
The fact that the tendency evidence here might be accepted and the jury satisfied as to the existence of the tendency, does not of itself conclude the enquiry as to whether the existence of that tendency, together with opportunity, is sufficient to conclude that it can rationally and reasonably support a verdict of guilty beyond reasonable doubt much less to determine that it has significant probative value.
Evidence will have significant probative value if, in the assessment of the Court charged with determining its admissibility, "a jury could treat it of importance in supporting an inference of guilt of the accused on the count charged. It is an assessment of the capacity of the evidence to have that effect. In undertaking that task, the Court must consider, having regard to the evidence adduced, whether there is a real possibility of an alternate explanation consistent with innocence": Hughes at [182]; see also DSJ v R [2012] NSWCCA 63.
In making the necessary assessment, the Court "must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with the guilt of the party against whom it is tendered": DSJ at [10] per Bathurst CJ.
There are a number of matters which seem to me to inform the assessment as to whether the tendency evidence in this case has significant probative value.
Any connection between the event observed by EP and a conclusion that it was the accused who caused the injuries to MJ is at best weak and depends upon several matters each of which has its own inherent weaknesses that serve to further undermine the probative value of the evidence.
The first matter is that it is common ground that even handling consistent with the most animated of EP's several demonstrations could not have injured the baby, or at least certainly could not and did not cause the injuries with which MJ presented on 13 July 2014. The medical evidence is clear, as the Crown fairly concedes, that the shaking of the baby in the manner demonstrated by the tendency witness would not have caused the injuries suffered by the baby.
The second matter is the extended window of time within which the injuries might have been caused. As I have already pointed out, there is an assertion by Dr Vimpani that it was likely that the baby suffered a shaking event on the morning of the day of his presentation to hospital. That is a conclusion stated without any exposed foundation or reasoning and, having regard to the whole of the medical evidence, seems to ignore what otherwise emerges from that evidence. That is, that the injuries might have been caused at any indeterminate time over a period of up to two weeks prior to the presentation at hospital. Accordingly, the large window of time within which the injuries might have been occasioned gives rise to reasonable hypotheses inconsistent with the guilt of the accused. Anyone who had access to the child within the relevant window could potentially have caused the injuries.
The evidence makes plain that CJ was not the only person who had access to the child in the period of time during which the injuries may have been caused. The larger the window of time during which the injuries might have been inflicted, the greater number of people who likely had access and cannot reasonably be excluded as potential offenders. The fact that the police have satisfied themselves that it was not the father or the grandmother, based apparently only on their respective say so, is neither here nor there so far as this matter is concerned. There remains a real possibility of an alternate explanation for the injuries inconsistent with guilt.
The third matter is the Crown's reliance upon the combination of Dr Vimpani's identification of one academic paper, which suggests that in some cases there may be a history of shaking prior to an event which ultimately results in presentation at hospital, and his allied proposition that what EP observed is consistent with the "natural history" of the condition known as shaken baby syndrome. At least one thing that indicates the inherent weakness of this third matter (putting to one side for the moment the efficacy of the research or its capacity to be meaningfully tested on behalf of the accused) is that it rather assumes the matter sought to be proved. It assumes it was the accused who shook the baby on the occasion resulting in the injuries. It seems to me there is a fallacious circularity in the proposition that what EP observed was consistent with the natural history of baby shaking syndrome, which involves the assumption that it was she who shook the baby on the occasion resulting in the injuries. The prior handling is no part of a relevant "history" unless one assumes it was the accused who shook the baby on the occasion resulting in injury.
Beginning with the assumption that the evidence will be accepted by a jury (in the manner and to the extent I outlined when discussing the relevance of the evidence), my assessment is that it fails to satisfy the threshold requirement of s 97 that it have significant probative value. In terms of its capacity for proof of the ultimate issue, the evidence, both viewed in isolation and in combination with the other material intended to be relied upon by the Crown, is inherently very weak.
In summary, the basis for my conclusion derives from a combination of the following matters: first, the fact that the tendency evidence comprises a single incident; second, the fact that that incident is equivocal at best, not least because of the range of variation in the witness' demonstrations of what she observed; third, the fact that the conduct observed by EP, even on the most adverse view of it from the perspective of the accused, did not result in injury and could not have caused injuries of the kind ultimately suffered, means there is a dissimilarity of substance from the conduct that caused the injuries; fourth, the fact that the case depends solely upon the combination of that tendency evidence and opportunity, in circumstances where given the period of time within which the injuries may have been caused and the number of people who potentially had access to the baby, reasonable hypotheses inconsistent with guilt necessarily cannot be excluded.
I would reject the evidence for failure to satisfy the threshold in s 97. For completeness, I will consider the further restriction on tendency evidence prescribed by s 101 of the Act.
[7]
Prejudicial effect: is it outweighed by the probative value of the evidence?
Even if, contrary to my conclusion, the evidence has significant probative value in the sense comprehended by s 97, it is not admissible ("cannot be used against the defendant") unless its probative value substantially outweighs any prejudicial effect it may have on the accused.
In my judgment, the prejudicial effect this evidence may have is great and that potential danger is not substantially outweighed by its probative value.
In circumstances where the Crown case depends entirely upon the combination of the tendency evidence and opportunity, the prior incident observed by EP will inevitably assume overwhelming significance out of all proportion to the true character of the connection between that evidence and the infliction of the baby's injuries. There is no witness to the act that caused injury. No evidence, obviously enough, from the victim. And no other evidence, even some other circumstantial evidence, creating a connection between the accused and whatever event gave rise to the injuries.
As a matter of human experience, the subject matter of these proceedings, the infliction of profound injury on a very young and helpless infant, is likely to inspire powerful emotional responses. Where there is no evidence, direct or circumstantial, pointing to precisely when or in what circumstances the conduct causing the injuries occurred, the only thing the jury will have to fix upon is the demonstration by EP of what she observed, in the light of the Crown contention that this is consistent with what is known about the natural history of shaken baby syndrome. The jury will be asked, based on nothing additional but opportunity, to conclude that a demonstration of conduct that would not and did not cause the subject injuries is a sufficient basis to be satisfied beyond reasonable doubt that it was the accused who caused the injuries.
The inevitable focus on the occasion about which EP gives evidence that will result in all the circumstances creates the dangerous potential for impermissible reasoning which in my view is incapable of cure by directions. The critical lever in the Crown case is the proposition that the conduct about which EP gives evidence is "consistent with the natural history" of shaken baby syndrome. The circularity, or at the very least potential circularity, attaching to that proposition will operate so as to cause enormous prejudice to the accused.
Even putting aside what I perceive to be the circularity in that proposition, the circumstances in which the tendency evidence is proffered (that is without any other evidence but opportunity) will inevitably skew the significance which a jury is likely to attach to the evidence and cause them to reason, absent any other possible explanation, that because the accused conducted herself on one occasion, in a manner which could not and did not cause the subject injuries, she must have performed the violent shaking that resulted in those injuries.
I am not confident, in all the circumstances of this case, that there are any directions that can sensibly ameliorate the potential prejudice that I perceive may arise.
In my judgment, the balance required by s 101 of the Act requires the exclusion of the evidence of EP.
[8]
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Decision last updated: 27 June 2016