R. v. Folbigg [2003] NSWCCA 17

[2003] NSWCCA 17

Court of Criminal Appeal (NSW)|2003-02-06|Before: Hodgson JA, Sully J, Buddin J, Wood CJ

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2003-02-06

Before

Hodgson JA, Sully J, Buddin J, Wood CJ

Source

Original judgment source is linked above.

Judgment (123 paragraphs)

[1]

CITATION : R. v. Folbigg [2003] NSWCCA 17 revised - 30/05/2003 HEARING DATE(S) : 6 February 2003 JUDGMENT DATE : 13 February 2003

[2]

JUDGMENT OF : Hodgson JA at 1; Sully J at 36; Buddin J at 37 DECISION : 1. Application dismissed. 2. The fact of the application and the result may be published, but ordered that the reasons not be published until further order.

[3]

CATCHWORDS : CRIMINAL LAW - EVIDENCE - Accused charged with murder of four children - Plea of not guilty - Defence application for separate trials - Coincidence evidence LEGISLATION CITED : Evidence Act ss.97, 98, 101, 135, 137 Makin v. Attorney-General for NSW [1894] AC 57 Perry v. The Queen (1982) 150 CLR 580 Pfennig v. the Queen (1995) 182 CLR 461 R v. Geering (1849) 18 LJMC 215 R v. Grills (1954) 73 WN(NSW) 303 R v. Joiner [2002] NSWCCA 354 R v. Le [2000] NSWCCA 49 CASES CITED : R v. Leask [1999] NSWCCA 33 R v. OGD (222) 50 NSWLR 443 R v. Phillips [1999] NSWSC 1175 R v. Smith (1915) 11 Cr.App.Rep 229 R v. WRC [2000] NSWCCA 210 Shepherd v. The Queen (1990) 170 CLR 573 Sutton v. The Queen (1983-4) 152 CLR 528 Thompson v. The Queen (1989) 169 CLR 1 W v. The Queen [2001] FCA 1648 PARTIES : Regina Kathleen Megan Folbigg - applicant FILE NUMBER(S) : CCA 60496/02 COUNSEL : Mr. M. Sexton SC with Dr. J. Quilter for Crown Mr. P. Zahra SC with Mr. A. Cook for applicant SOLICITORS : S.E. O'Connor for Crown D.J. Humphries for applicant

[8]

PRIMARY JUDGE'S DECISION 4 Before the primary judge, the Crown opposed the application, on the basis that evidence relating to the deaths of each child, and an apparent life-threatening event (referred to by the primary judge as an ALTE) concerning Patrick, was admissible in relation to each count as tendency evidence under s.97 of the Evidence Act and co-incidence evidence under s.98 of the Act. Appropriate notices complying with s.99 of the Act had been served. The primary judge accepted that contention of the Crown, and it was for that reason that he rejected the application. The applicant contends that the primary judge was in error, and that, in relation to any one charge concerning one child, evidence relating to the deaths or ALTE of other children would not be admissible as tendency or co-incidence evidence. 5 In his judgment, the primary judge noted that the substantial issue in relation to each count was whether the applicant was responsible for the death or ALTE in question, the Crown case being that the applicant asphyxiated each child; and that the medical evidence showed that there were two possibilities to be considered in each case, namely whether the death or ALTE was the result of natural causes or the result of induced or imposed airway obstruction. He noted that in relation to two deaths, the cause of death was originally ascribed, following autopsy, to sudden infant death syndrome (SIDS), an expression used where no pathology or possible cause for the death of an infant has been found, following appropriate post mortem examination. In such cases, the death is regarded as due to natural causes. 6 The primary judge noted that where pathology is found which may provide a possible, although not definitive, reason for death, the practice of pathologists is to give the cause of death as "not ascertained". 7 In his judgment, the primary judge summarised the facts in relation to the deaths and ALTE which seemed, and indeed still seem, not to be in dispute: Caleb Gibson (i) He was born 1 February 1989; (ii) He was born healthy, but he had some difficulty breathing and feeding simultaneously, and he had been diagnosed with transient tachnypnoea prior to his discharge from hospital; (iii) He died on 20 February 1989, aged 19 days; (iv) He was fed by the accused at 1 am, on 20 February 1989; (v) He was found by the accused in his bassinette at 2.50 am, cyanosed and not breathing - the accused was screaming, and this awoke the father, who was asleep; (vi) Caleb was found to be pale, and warm to the touch when seen by ambulance officers; (vii) Post mortem and other medical reports showed: s Laryngeal or inspiratory stridor (floppy or lazy larynx) s No inherent metabolic problems or external signs of injury s Haemosiderin within the lungs which on the medical evidence was not necessarily specific for asphyxia, although it was consistent with it s mottling on the pleural surfaces and congestion in places showing incomplete aeration. (viii) Dr Cummings' autopsy opinion was that death was due to SIDS.

[11]

Laura Elizabeth (i) She was born on 7 August 1997; (ii) Laura's sleep and breathing patterns were monitored - A corometrics device being used to monitor her vital statistics, and other data, including room temperature and ventilation; (iii) The monitoring was reduced in August 1998, when Laura was aged 12 months; (iv) In August 1998, the accused threatened to leave home, and gave a letter to her husband advising that the only thing keeping them together was Laura; (v) On 1 March 1999, the accused became angry at about 7 am when Laura was crying, and her husband was about to go to work. This led to an argument; (vi) Laura died on 1 March 1999, aged 19 months; (vii) At 10.30 am on 1 March 1999, the accused took Laura to her husband's place of work, and then home at about 11.00 am; (viii) At 12.05 pm the accused phoned 000 and reported that Laura was not breathing; (ix) Ambulance staff found that Laura was not breathing, in a state of bradycardia, before becoming asystole; cyanosis was evident, and she was warm to the touch. She was taken to hospital but pronounced dead at 12.45 pm; (x) Laura had a recent upper respitory tract infection; (xi) The post mortem examination by Dr Cala showed: s Clear fluid around the nostrils s Some inflammatory changes in the heart consistent with myocarditis, of probably viral origin; s Petechial haemorrhages on the anterior aspect of the suprasternal thymus gland; s Focal haemorrhagic and collapsed lungs; s No congenital metabolic abnormality. (xii) Dr Cala could not determine the cause of death, but excluded SIDS. 8 The primary judge then recorded a number of diary entries made by the applicant upon which the Crown sought to rely, particularly some made following the death of Sarah. The relevant passages of the primary judge's judgment are in pars.[11] to [16], as follows: 11 An earlier entry of 3 June 1990 is also said to have significance, being an entry made on the date that Patrick was born, that is, 15 months after Caleb's death, in so far as the accused wrote: "I had mixed feelings this day. Whether or not I was going to cope as a mother or whether I was going to get stressed out like I did last time . I often regret Caleb & Patrick, only because your life changes so much, and maybe I'm not a Person that likes change. But we will see?"

[112]

SUBMISSIONS OF APPLICANT 16 No written grounds of appeal have been provided, but Mr. Zahra SC on behalf of the applicant has made extensive written and oral submissions. They indicate that the essential ground of the appeal is that the primary judge was in error in ruling that on each count evidence in relation to other counts would be admissible as coincidence or tendency evidence. 17 In the written submissions, Mr. Zahra submitted that the test of admissibility required that the evidence allow for no reasonable view of it consistent with innocence: see Pfennig. He pointed out that this was not a case where the Crown sought to rely on other proven homicidal acts to prove its case, as in Thompson v. The Queen (1989) 169 CLR 1. Rather, the Crown was seeking to prove asphyxiation in relation to each one of four deaths, by using evidence in relation to the other three, when in no case did the evidence in relation to just one of the deaths prove asphyxiation; and accordingly, the evidence lacked the probative force required by Pfennig: cf. R. v. Phillips [1999] NSWSC 1175. 18 Mr. Zahra submitted that the Crown wished to invite the jury to conclude that, whereas one event might be explicable in terms of a misadventure, the repetition of events made such an explanation implausible. This made the impermissible assumption that each event is of itself relevant in that it was a non-accidental death: see Sutton v. The Queen (1983-4) 152 CLR 528, Perry v. The Queen (1982) 150 CLR 580. 19 Mr. Zahra submitted that the primary judge erred in not identifying any sequence in assessing the admissibility of the similar fact evidence, and failing to identify any starting point for the process: he was wrong to say that this was a matter to be dealt with by Crown addresses, and then by the jury, when it had to be dealt with by the judge in determining the question of admissibility. The primary judge did not, as required by ss.98 and 101 of the Evidence Act, in relation to each count, first assess the probative force of the evidence, and then consider whether this evidence bore no reasonable explanation other than the guilt of the applicant on the offence charged. 20 In oral submissions before us, Mr. Zahra submitted that the primary judge made a further error in relying on medical evidence which would not be admissible at the trial because it was based not on medical expertise but on the medical experts' views on matters of probability and statistics: the view of some of the medical experts that the occurrence of four such deaths by natural causes was so improbable that they must have been caused by some unlawful act was a matter outside medical expertise and a matter which would be excluded as going to the ultimate question to be decided by the jury. In the case of some of the medical evidence relied on by the primary judge, the views of the experts as to the cause of death was tainted by that kind of reasoning: indeed, Mr. Zahra submitted, Dr. Ophoven and Dr. Beal did not rely on any other reasoning. Mr. Zahra submitted that, at least if one eliminated this unsatisfactory reasoning, the medical evidence in this case could do no more than raise suspicion; and in that respect, this case was indistinguishable from R v. Phillips. Mr. Zahra referred us to reports of a recent Court of Appeal decision in the matter of Clark, a previous decision in which had been reported as R v. Clark (2000) EWCA 54. In that recent decision, the English Court of Appeal overturned a conviction based on similar fact evidence of this kind, and the Court was invited to withhold judgment in this matter until the report became available, which was expected to be in about two weeks from the hearing of this application. 21 Mr. Zahra also submitted that the failure of the Crown and of the primary judge to identify any sequence in dealing with the similar fact evidence pointed up the real difficulty that would occur in leaving the questions to the jury: this difficulty and the confusion that was likely to be occasioned in leaving the matters to the jury could be considered part of the prejudicial effect of the evidence which had to be taken into account under s.101.

[114]

WHAT IS THE CORRECT TEST? 24 In WRC at [25]-[29], I said the following: 25 In my opinion, Pfennig is highly relevant to the effect of ss.97, 98 and 101 of the Evidence Act, in that the principles there stated concerning circumstances in which the probative force of similar fact evidence substantially outweighs its prejudicial effect are directly applicable to questions raised for decision by ss.101 and 137 of the Evidence Act: R v. AH (1997) 42 NSWLR 702. OGD does not suggest the contrary. 26 The essence of the approach to similar fact evidence, such as propensity evidence, established by Pfennig appears in the following passage from the judgment of Mason CJ, Deane J and Dawson J at 482-3: 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. (Hoch (1988) 165 CLR at 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984) 152 CLR at 564). See also Harriman (1989) 167 CLR at 602). Here "rational" must be taken to mean "reasonable" (See Peacock v. The King (1911) 13 CLR 619 at 634; Plomp v. The Queen (1963) 110 CLR 234) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle. 27 Plainly, that passage does not mean that the judge must look at the propensity evidence in isolation, and not admit it unless there is no reasonable view of the evidence so considered that is consistent with the innocence of the accused of the offence with which the accused stands charged. That approach would be quite inconsistent with the correct approach for considering circumstantial evidence, as explained in Shepherd v. The Queen (1990) 170 CLR 573; and the quoted passage proceeds by reference to the character of propensity evidence as circumstantial evidence.

[116]

29 In my opinion, what it must mean is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused. That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence. 25 In Joiner at [37], I adhered to what I said in WRC. 26 I note the criticism by McHugh J of the majority view in Pfennig, set out at 516 of that case: If evidence revealing criminal propensity is not admissible unless the evidence is consistent only with the guilt of the accused, the requirement that the probative value 'outweigh' or 'transcend' the prejudicial effect is superfluous. The evidence either meets the no rational explanation test or it does not. There is nothing to be weighed - at all events by the trial judge. The law has already done the weighing. This means that, even in cases where the risk of prejudice is very small, the prosecution cannot use the evidence unless it satisfies the stringent no rational explanation test. It cannot use the evidence even though in a practical sense its probative value outweighs its prejudicial effect. 27 I note also that Pfennig was decided on the basis of the common law, not s.101(2); and I accept that this Court must apply the statute, and not the common law as expounded by the High Court. However, the majority of the High Court in Pfennig plainly said that only if there was no rational view of the evidence consistent with the innocence of the accused could the Court safely conclude that the probative value of the evidence outweighed its prejudicial effect; and in my opinion that statement is applicable to the test stated by s.101(2). Accordingly, unless and until the High Court of Australia says differently, I think this Court must apply the Pfennig test. 28 I set out in WRC in the passages quoted how I understand the Pfennig test to operate. I would add that the test certainly does not require the judge to reach the view that the jury acting reasonably must convict: the judge must form his or her own view as to whether there is no rational view of the evidence, as it then appears to the judge, which is consistent with innocence, and the judge does not need to speculate as to how precisely that evidence may be affected by the way it is presented at the trial or by cross-examination, or how other minds might view it. Furthermore if, as the trial progresses, there are grounds for contending that the evidence as presented turns out to be substantially different from how it appeared at the time of the determination of admissibility or the joinder of counts, there may be a ground to apply for those questions to be re-considered.

[121]

In my opinion, what the primary judge is saying in those paragraphs is that there is little, if any, dispute in the medical evidence, in so far as it indicated that in each case medical considerations alone left a possibility that the cause was asphyxiation, this being a reasonable possibility and not a possibility which was merely remote or fanciful; and that there was no other cause which could be considered as something more than a reasonable possibility. The primary judge having approached the matter in that way, I think it is appropriate for this Court to do likewise, and consider whether, treating the medical evidence in that way, it considers the primary judge erred in holding that the s.101 test was satisfied. 30 In my opinion, the other principal submission of the applicant is based on a misconception of the principles concerning circumstantial evidence. As shown by Shepherd v. The Queen (1990) 170 CLR 573, it is of the essence of circumstantial evidence that the totality may prove a case beyond reasonable doubt whereas each piece of evidence considered on its own may prove nothing and may even be considered irrelevant in the absence of other evidence. In this case, if it be the case that it is only the occurrence of four deaths in similar circumstances that could prove that the applicant was responsible for any one of them, and that the evidence relating to any one of them without the evidence relating to the others would prove nothing, then this would not of itself mean that the Pfennig test could not be satisfied. 31 In my opinion, it is necessary in relation to each count for the Court to consider the evidence relating to that count in the absence of evidence relating to the other counts, and consider whether any deficiency of proof of the appellant's responsibility for the death or ALTE in question would be overcome by the evidence relating to the other counts, so that the latter evidence would leave no rational view consistent with innocence in relation to the particular count being considered. 32 The primary judge did not explicitly undertake that course, but in my opinion that is the substance and effect of what he did. Furthermore, my own view is that, on following that course in relation to each count, there would be a deficiency of proof of guilty in relation to each count without evidence concerning the other children, but that the additional evidence concerning the other children would leave no rational view consistent with innocence in relation to the particular count being considered. I say so essentially for the reasons given by the primary judge, especially the extreme improbability of four such deaths and one ALTE occurring to children in the immediate care of their mother, with asphyxiation being a substantial possibility and no other cause of death being anything more than a substantial possibility, without the mother having contributed to any of those deaths, particularly in the light of the diary entries referred to by the primary judge. The contribution to the death may have been an unlawful act amounting to manslaughter rather than murder, but that would be sufficient in my view to satisfy the Pfennig test, when manslaughter is an alternative verdict available on a charge of murder. 33 As to whether there would be prejudice arising from confusion from the way the matter was left to the jury, it seems to me that the following course could be taken. The jury could be asked to consider first whether there is any reasonable possibility that all deaths and the ALTE occurred by natural causes without any contribution from the applicant. If they do consider there is such reasonable possibility, that would be the end of the matter and a verdict of not guilty should be returned on all counts. If they consider there is no reasonable possibility that all incidents occurred by natural causes without a contribution from the mother, it would be pointed out that that conclusion does not mean that there was a contribution from the mother in each and every individual case, and it is necessary then to turn to consider the evidence in each individual case. The judge would then explain to the jury what evidence could be considered in relation to each count. There is a possibility of confusion, and I accept that this is prejudice within s.101, as well as ss.137 and 135. However, I think that the probative value of the evidence is such that it does substantially outweigh any prejudicial effect, so that the s.101 test is passed. In my opinion also, the evidence would not be excluded under s.137 or s.135. 34 In my opinion, in relation to each count, the evidence concerning the other counts and other children is admissible as coincidence evidence. That view is sufficient to justify refusing separate trials. It is not necessary to consider whether the evidence is admissible as tendency evidence.