R v Gill [2005] VSCA 70

2 On 25 February 2003, the applicant, who was born on 9 September 1973, pleaded not guilty in the Supreme Court at Melbourne to the charge that he murdered Lewis Blackley. The trial was interrupted, in circumstances to which I shall turn shortly, by an adjournment effectively from Tuesday 4 March to Tuesday 11 March. On 14 March the jury returned a verdict of guilty on the charge of murder. After a plea, on 15 October 2003 the judge sentenced the applicant to imprisonment for 19 years and fixed a non-parole period of 14 years.

3 The applicant now seeks leave to appeal against both conviction and sentence.

The Crown case

4 Lewis Blackley ("Lewis"), the victim, was two years old at the time of his death on 11 November 2001. He was the son of Daisy de Los Reyes ("Daisy"), with whom the applicant had established a relationship some three months earlier. The applicant was not living with Daisy at her house at 22 Robin Avenue, Norlane, but would stay there two or three days a week. Lewis usually slept on a lounge room couch, where it seems he slept better than in his own bedroom. The evidence suggested that Lewis was generally a happy, healthy child, and his mother, despite suffering from schizophrenia, was a good caring parent.

5 Lewis, however, was easily frustrated, was prone to cry and would from time to time throw tantrums which could include banging his head against walls or the ground. His mother coped with this by putting him in the lounge or into his cot, telling him to calm down, and leaving him for a while, a strategy which had been suggested by a child care nurse. There was evidence that the applicant and Lewis played together and got on well. But the environment at Robin Avenue had the capacity to irritate the applicant who, according to one witness, said, a week before Lewis's death that "These guys are driving me crazy. I'm going to my brother's".

6 On Saturday 10 November, during the morning and early afternoon Lewis was "grizzly" and pestering Daisy for attention and sweets. He slept soundly from 12.30 to 3.30 p.m., during which time the applicant and Daisy smoked marijuana through a bong. Later that day Daisy and the applicant took Lewis with them to the supermarket and then to a polling booth where they voted in the Federal election.

7 The sequence of events that followed cannot be described with precision. Daisy prepared an evening meal for the applicant, and put Lewis, who was yelling and screaming, into the lounge room and closed the door. He continued to scream and at some point in the early evening Daisy rang Lewis's father, Vaughan Blackley, in Sydney and said that Lewis was driving her "nuts", that he was "whingeing all the time" and asked whether Mr Blackley could take him back to Sydney for a holiday. The latter said in evidence that Daisy was not angry, but sounded as if she needed a break.

8 The applicant was finding Lewis's grizzling very annoying. In an interview with police officers he described Lewis as making him "cranky" and said: "He was clingy to Mum. I think it offended me a bit and with the fact that day he just did not stop crying. He didn't stop crying, and as I say I tried to comfort him and he just didn't want a bar of me and I think it offended me and I just reacted". This reaction took the form of picking Lewis up by the waist and throwing him backwards over his head. The applicant was standing at the end of a bed, and Lewis fell on the mattress, and continued to cry. Daisy told the applicant not to do this again and he left the room. Later that evening near dinner time the applicant hit or tapped Lewis on the head with a video cassette up to twenty times. It was the Crown case that Lewis did not suffer any permanent damage either from being thrown over the applicant's head, or from being hit with the video cassette.

9 That evening at or after 7.00 p.m. Lewis ate a substantial dinner of fried rice in his high chair, feeding himself. Afterwards he was, however, still unsettled and crying again despite Daisy's efforts to calm him.

10 From early that evening onwards, the applicant and Daisy had been drinking glasses of Lambrusco, and had also smoked some marijuana. By about 9 p.m., Lewis had effectively cried himself to sleep and was on a couch in the lounge room where Daisy put a blanket over him. Daisy said she was tired and went to bed at about 9.30 p.m. and according to her evidence she did not wake again until about 9.40 a.m. The applicant had, by 9.30 p.m., consumed a number of glasses of wine and continued to smoke marijuana. Daisy was aware of the applicant coming to bed and at one stage heard the toilet flushing, but she had no conversation with the applicant nor did she hear any crying from Lewis during the course of the evening.

11 Next morning Daisy found her son very cold and stiff and blue in the face. The blanket was still over him. She picked him up and shook him but he did not respond. She nursed him, crying, but Lewis was dead. In the period shortly after his death, when told that Lewis had died of head injuries, Daisy attributed this to his head banging tantrums. Later, on 19 November, when more had been revealed of Lewis's injuries, a conversation between the applicant and Daisy was recorded by police on a listening device. Daisy asked the applicant what had happened, to which the applicant replied he did not know. Daisy said, "No, you tell me the truth, Haemon, did you touch him?", to which the applicant replied "No".

The applicant's records of interview with the police

12 The applicant did not give evidence at the trial. However on two occasions he participated in recorded interviews with the police, the first interview taking place on the afternoon of Monday 19 November, and the second at the Melbourne Custody Centre on Tuesday 27 November. During the first interview, the applicant admitted that he had hit Lewis on the head with the video cassette a number of times, but said he was sure that this could not have done any damage. He described at some length the occasion when he threw Lewis over his head onto the bed. He admitted that he had bitten Lewis on one of his hips and that he had tried to rub the mark out. He said several times that Daisy had gone to bed at 9.30 p.m. He said that after he threw Lewis over his head, he turned and watched him land awkwardly, and said that his body landed pretty hard, but that Lewis just got up and continued to "sook" as he had been before, meaning that he continued to cry non-stop. The applicant said he was "cranky" that day. Later in the interview he said that when they had tea at or about 7 p.m., Lewis ate a large bowl of fried rice in his high chair, and that he was hungry. It was put to the applicant that Lewis had a spiral fracture in his lower right leg, caused by a twisting motion, and bruising showing that somebody had grabbed his leg. The applicant said he could not explain how Lewis had broken his leg.

13 In the second interview it became clear that the applicant had told the police substantially less than the full truth in the first interview, and that he had lied a number of times. The applicant told police that "I believe Lewis's death is the fault of mine" and continued "I just - I - I believe the - the death of Lewis Blackley is the result of some actions that I've taken." He said that he was not one hundred percent sure of his actions at the time, but if he was to blame for these actions he would rather get some sort of help, and said he had been told he had a borderline personality disorder. He said again that Daisy had gone to sleep at roughly 9.30 p.m., quite intoxicated. He said that he used alcohol as a bit of an escape, and "just drank and drank and drank". He said he was in a "real intoxicated daze" and then said that he was sitting on the couch with Lewis, who started crying, and that "I've bitten him and I bit him hard" on the hip. He said that at one stage he had given Lewis a Chinese burn, screwing the leg and that he possibly could have broken his leg. He said that, with the Chinese burn and other actions, he intended to hurt Lewis, but not "maim, injure, kill". He then said that -

"I got up knowing that I'd hurt - would have hurt the boy and - I wasn't really watching the video by - by now, as you'd probably work out, but ... I've - I've got up and - this - I believe that there's injuries to Lewis's head that may have caused his death. I honestly don't believe I've hit Lewis on the head because he used to do quite a lot of damage to himself. ..."

He then said that Lewis went to sleep and at 6.30 or 6.40 a.m., and, knowing that he had harmed the boy, but not thinking that he had done anything extreme, he checked on Lewis. He continued -

"I knew I'd harmed him. I felt his hand. It was a bit cool, not cold and I listened to him 'cos you - he was breathing. He was breathing. And so I've just gone back to bed. I - I - actually I pinched his pillow because he wasn't using it because he was stuck down at the back of the couch."

Later he said as to the drinking that evening that Daisy might have had seven glasses, and that he had possibly had 21, maybe 24 glasses of Lambrusco. Later he said that -

"I honestly loved that - he gave me the shits. The kid gave me the shits, but I loved the life we were having and th -, there's no win situation in me - killing that child. I got scared. My girlfriend which I still love and I'll probably lose because of this - these actions,".

Later he said he didn't know for sure what he had done to Lewis. He said he had hit the area on the hip where he had bitten Lewis to cause a bruise, thinking "I'd rather have a bruise there than a bite mark". Near the end of the interview the applicant said that he broke down at the funeral because "All I wanted to do was tell everybody that I was sure it was my actions that had - had come to that boy's demise", and he "wanted just to try and move on and I would have had to live with me killing a child for the rest of my days".

The evidence of Dr Matthew Lynch

14 Dr Lynch, a forensic pathologist, performed an autopsy on the victim's body on 13 November 2001. He said that X-rays disclosed that Lewis had a fracture in one of his right leg bones. The injuries included:

(a) swelling on the right side of the forehead, four bruises on the left side, three in the middle of his forehead, some were recent and some were older;

(b) bruising on the back of the right external ear consistent with a blunt trauma applied to the ear pressing the ear against the scalp, a recent injury;

(c) a bruise to the front and side of his right hip and around to his buttock, which appeared recent, and indicated that he had been subjected to some sort of blunt trauma to the vicinity, and at least one impact;

(d) bruising on the right leg, over the middle of the shin with scratches in the middle area. The bone underneath had been broken very recently. It showed no evidence of healing and was likely to have occurred around the time of his death. This was sustained possibly by a twisting force being applied with a hand. If he had been conscious he would have been quite distressed and unable to put any weight on the leg.

(e) There were multiple other areas of bruising to Lewis's body, some older and some recent, the recent bruising including to the front of the left thigh, the inner part of the left thigh towards the groin, and the inner part of the left thigh towards the knee.

15 There was evidence that Lewis had been stressed by a viral infection in the week before his death, but this had not contributed to death. There was some surface bruising on his skull, on the back of his head on the left and in the midline. There was also evidence of a small bruise on his brain and swelling which was a reaction to some form of blunt trauma applied to his head resulting in the brain being damaged and swelling. This then placed pressure on important parts of the brain which help in the breathing process.

16 Dr Lynch said that the cause of death was head injury. There were six injuries on his head which, all except for one on his forehead, looked recent and the result of mild to moderate blunt trauma. Dr Lynch said that this kind of head injury was likely to have resulted in his death in a matter of hours, and that a child would not be conscious and normal after sustaining the injury. Dr Lynch said that it was possible that a child could be conscious for a period of time and crying and whingeing. Most children sustaining severe head injury are rendered unconscious, some are not and others have a lucid interval. In his oral evidence, Dr Lynch described a number of injuries on the deceased's body and said that the cause of death was head injury. He said there were multiple areas of blunt trauma to the head, there was swelling to the brain and he detailed bruising to areas of the head. At one point in his evidence he said that children would not have a lucid interval after this injury, although he said this question should be put to a surgeon. In cross-examination, Dr Lynch said that some of the injuries shown could have been sustained by falls in an accidental way. A twisting force may have produced the broken tibia. He said the blunt trauma to the head could have been caused in several ways, including banging of the head on the lounge room door over a prolonged period, the swing of a hand, falling over and knocking of the head on furniture, or striking of the head on any hard surface. Dr Lynch said the child could regain consciousness after blunt head trauma for some hours, and gave evidence of cases where this happened. In re-examination Dr Lynch said that this was not his area. He added that the head injuries were recent, occurring around the time of death and going back for some hours.

The evidence of Mr Geoffrey Klug

17 Mr Geoffrey Klug, Senior Neurosurgeon at the Royal Children's Hospital, gave evidence that he had examined the autopsy report and photographs. It was his opinion that Lewis's head injuries were caused by more than one blow, of severe force. He said that he did not think these injuries were caused by tapping a video on the head, or a slap on the face, or tossing the boy over a shoulder on to a double bed, or by banging the head onto a door. Mr Klug said that the child's behaviour during the day and at dinner time indicated that he was not exhibiting any signs of serious injury. A child banging his head is a relatively common manifestation of a behaviour disorder in children. Mr Klug said the injuries inside the skull to the brain and its coverings were not compatible with such a mechanism causing the damage. Mr Klug said that it was possible the child had a lucid interval although he thought it unlikely. While delayed deterioration can occur due to brain swelling, resulting in a lucid interval, it did not allow one to draw a valid conclusion in regard to the circumstance. Mr Klug said it was highly likely that Lewis would have been rendered immediately unconscious as a result of the injury, and if he had had a lucid interval, he would not have been able to converse in a meaningful way. In his opinion the time leading to death after the trauma would have been relatively short. In the context of this situation, Mr Klug did not consider that there would be a self-inflicted injury that would produce this sort of injury. In his opinion Lewis probably never regained consciousness after the injury to the brain. Mr Klug was asked what conclusion he could draw from the fact that Lewis ate a full meal at around 7.30 p.m., of fried rice, and fed himself. Mr Klug replied -

"That would strongly suggest to me that at that time he was not exhibiting the signs of any serious injury. In regard to the three matters you've mentioned, as I indicated, I do not believe they would have caused any serious injuries, so they could have been performed before he ate his meal and not adversely affected his ability to eat and enjoy his meal."

The three matters previously mentioned were that the applicant had tapped Lewis on the head with a video, a non-forceful slap on the face and that the applicant had tossed Lewis over his shoulder on to a double bed.

18 In cross-examination Mr Klug said he could not say which blow caused the head injury. An extremely heavy fall could be responsible for the head injury. He agreed that children have fallen over and sustained subdural haemorrhaging to the head from non-substantial forces, which could be exacerbated by hypoxia. If the child had an obstruction of his breathing over an extended period it could have had an unfavourable influence on a head injury. If the child had had a recently fractured tibia it would induce severe pain and if the child did not show any evidence of responding to that pain it would imply that there was very substantial depression of the conscious state.

The applicant's grounds concerning conviction - grounds 1, 2 and 8

1. That the judge erred in adjourning the trial part heard to enable the Crown to consider its evidential position following upon the evidence of Dr Lynch.

2. The judge erred in admitting the evidence of Mr Klug.

8. The judge erred in failing to discharge the jury upon the adjournment of the trial to allow the Crown to call Mr Klug.

19 It is convenient to take these grounds first and they may be taken together. Each of these grounds relate to the adjournment of the trial from 4 March to 11 March, as Mr Tehan for the applicant put it, to allow the Crown to call Mr Klug as an additional medical witness. The applicant's case was that the Crown first raised the matter on Tuesday 4 March, saying that the witness Dr Lynch had been cross-examined upon matters which were not within his expertise, and that the Crown desired as a result of this cross-examination to call further evidence. The application was opposed, with the applicant's counsel saying that he had cross-examined on the basis of instructions obtained from Dr Byron Collins. He claimed that there would be "overwhelming" prejudice if the trial was adjourned. The trial judge ruled after argument that the Crown should be permitted to call this additional evidence, first on a voir dire. His Honour sent the jury away with the expectation of resuming the trial on Thursday 6 March, and then explaining to the jury the reason for the adjournment.

20 On Thursday 6 March a voir dire of Mr Klug was conducted, at the end of which counsel for the applicant submitted that Mr Klug's evidence should be confined to those matters upon which Dr Lynch could not give evidence. The Crown opposed this submission. A related matter was whether the defence would be able to call Dr Collins. The judge said that his tentative view was that the whole of Mr Klug's evidence was admissible. Other matters were discussed and the judge indicated that if Dr Collins was called, his character could be attacked.

21 Counsel for the applicant made application for the discharge of the jury "in view of the late provision of the evidence of Mr Klug yesterday and in view of the situation that's now developed with Dr Collins ... on the basis that it is impossible for this man to receive a fair trial". Counsel submitted that there was no or at least no immediate facility to call counter-neurological or pathological expert evidence. The application for a discharge was opposed by the Crown. In reply the applicant's counsel described the efforts which had been made to obtain further evidence. The judge ruled that he would not discharge the jury but would adjourn the trial until the following Tuesday (11 March) to allow the defence the opportunity to consult expert evidence. The trial was accordingly adjourned until that day, when Mr Klug gave evidence.

22 Mr Tehan for the applicant submitted in this Court that these events did produce unfairness in the trial of the applicant in that for a week the jury heard no evidence; the defence were not in the position to call Dr Collins; it could be inferred that the defence may not have been in a position to call any other evidence; and Mr Klug was permitted to give evidence beyond the issue of "lucid interval" upon which Dr Lynch had been cross-examined. Accordingly it was submitted that "a high degree of need"[1] for the discharge of the jury had been established.

23 In my view an examination of the full sequence of events shows that none of these grounds has been made good. Contrary to the contention of the applicant, the judge did not adjourn the trial part heard to enable the Crown to consider its evidential position following the evidence of Dr Lynch. Rather, at the conclusion of Dr Lynch's evidence, on Monday 3 March, the Crown called further evidence for the remainder of that day and the first half of the following day. After the luncheon adjournment on Tuesday 4 March, the prosecutor indicated that in the light of Dr Lynch's evidence she wished to call expert evidence from Mr Klug. It was submitted that such evidence was necessary and appropriate because the applicant's counsel had put a number of documents to Dr Lynch in cross-examination and sought his comments on those documents. They included an article from the Journal of Neurosurgery, which dealt with the phenomenon known as "lucid interval" amongst children in a clinical setting. Dr Lynch had indicated that he was not qualified to make such comments and these matters would need to be put to a surgeon.

24 The trial judge heard the argument advanced in opposition by the applicant's counsel but then ruled that this course was permissible. The judge directed the prosecution to obtain a statement from Mr Klug and provide it to counsel for the applicant. Evidence for the Crown then continued, and at the end of the day the Crown produced a brief statement from Mr Klug. After acknowledging the lack of detail in the statement, the prosecutor sought an adjournment in order to obtain a more detailed report. The applicant's counsel agreed that a more detailed report was required. The matter was then adjourned until two days later on this basis and upon the resumption of the trial, Mr Klug's evidence was adduced by voir dire.

25 It was after the voir dire had been completed that the applicant's counsel submitted that Mr Klug's evidence should be limited to those areas in which Dr Lynch had expressed concerns about his lack of expertise, namely the question of lucid interval. The prosecutor submitted that evidence on this question could not properly be separated from evidence on a variety of other related questions. As I have said, the judge expressed a tentative view that it would be artificial to circumscribe Mr Klug's evidence in this way, and his Honour was never asked to return to the question.

26 In these circumstances I accept the submission of Mr McArdle for the Crown in this Court that the judge was correct to refuse to limit the scope of Mr Klug's evidence, and that the Crown was entitled to call evidence from Mr Klug that was relevant and within the scope of his expertise. Furthermore, in my view the judge's approach in dealing with the applications made by the Crown after the evidence of Dr Lynch was proper, and in no respect unfair to the applicant. Furthermore no miscarriage of justice has been shown by the applicant to have resulted from the steps taken by the judge, including the admission of the evidence of Mr Klug.

27 As to ground 8, the judge was, I think, correct to refuse the application for the discharge of the jury since it had not been shown that there was a high degree of need for such a discharge. The adjournment of the trial for a week could not, in my view, be said to have compromised the capacity of the jury properly to assess the evidence and issues involved to any significant extent. The trial was not a lengthy one, nor did it involve issues of particular complexity. Furthermore a challenge of this nature was rejected in R. v. Kerr[2], a case which involved a trial that was adjourned for some two months, in the middle of the prosecutor's closing address, due to the illness of the trial judge. The Court there took the view that the period of delay was "not such that the capacity of the jury to address properly the evidence and issues involved in the trial might be perceived as compromised to any significant extent". Mr Tehan was not able to suggest any rational basis for a different view being taken in the present case.

28 The applicant, in support of the need for a discharge, relied on the inability of the applicant's counsel to call evidence from Dr Collins or another forensic pathologist. Mr McArdle for the Crown argued in response that this was a problem which need not have arisen if the applicant had notified the Crown that it sought to call expert evidence from Dr Collins, as indeed the applicant was required to do pursuant to s.9 of the Crimes (Criminal Trials) Act 1999. Furthermore, it was counsel for the applicant who had introduced evidence of this nature into the trial through his cross-examination of Dr Lynch, and it followed that the applicant's counsel must have been aware of the potential role of such evidence in the trial.

29 The judge refused the application to discharge the jury on the afternoon of Thursday 6 March. His Honour noted that he had been told by the applicant's counsel that Dr Collins, if called, might be cross-examined in relation to a prior conviction, that this was the first time that this had occurred, and accordingly that the defence had been taken by surprise. His Honour then said that this was a very stressful trial, and that he would be very reluctant to discontinue it at this stage. As his Honour put it -

"I think the only practical balance I can strike at this point, is to give the defence until Tuesday morning to obtain any evidence they want in rebuttal or to have some expert look at Mr Klug's report.

Speaking for myself, knowing his eminence in the profession, I would be surprised if too many experts could be found to contradict what he said. Nonetheless, given the far-reaching nature of his evidence this morning, I think the defence should be given the opportunity to consult. However, I would need a lot of convincing on Tuesday morning that if I grant adjournment to that time, that no expert could be found to comment on his report or if necessary to give evidence.

The upshot of all that, is that I refuse the application to discharge this jury but I will, with considerable reluctance, I might say, adjourn this trial to Tuesday morning."

30 The following Tuesday (11 March) Mr Klug was duly called and gave evidence before the jury. He was then cross-examined by the applicant's counsel, and no suggestion was made, either before cross-examination, or after Mr Klug's evidence, that the applicant had been disadvantaged by the inability to discuss Mr Klug's evidence with a medical expert, or that it was impossible to call anyone in response. It was not suggested that more time was needed to consult further medical experts or to enable answering medical evidence to be given. Counsel for the applicant informed the judge that he would not be calling any evidence, but that he intended to make a brief no-case submission. No further application was made for the discharge of the jury.

31 In my opinion the judge's ruling on the discharge application discloses no error, nor did any miscarriage of justice occur as a result of the judge's refusal to discharge the jury without verdict.

Ground 4

The judge erred by failing to give any or any adequate direction to the jury upon causation.

32 This was the principal ground argued in this Court by Mr Tehan for the applicant. He referred in detail to the expert evidence given by Dr Lynch and Mr Klug, to which reference has already been made. Reference was made to the evidence given by other witnesses of Lewis's temper tantrums leading to him banging his head, and that these had caused bruising. It was submitted that the judge had accepted, before charging the jury, that the principal issues were causation and intent. Mr Tehan submitted, however, that the judge did not define causation for the jury, and that his Honour should have directed that the jury had to be satisfied that it was an act of the accused which was a substantial or significant cause of death[3]. He put it that the jury should have been directed that where there may be more than one factor contributing to death, the question was whether the Crown had established beyond reasonable doubt that the act of the accused caused death[4]. He also submitted that the jury should have been told that an act will break the chain of causation if it can be shown that the act accelerated the death, so that it could be said to have caused the death and thus to have prevented the accused's act which would have caused the death from actually doing so. Mr Tehan argued that these directions should have been given because whether an act of the applicant caused death was a live issue. The applicant had consistently denied inflicting the fatal injury and, so the argument ran, it was open on the evidence to conclude that the fatal injury could have been caused by some accidental mechanism, after which there was a lucid interval before the child lapsed into unconsciousness. He argued that no time of death was established and the judge should, therefore, have directed the jury upon this vital issue of causation. Emphasis was placed upon the evidence given by Dr Lynch and Mr Klug to suggest that blunt trauma to Lewis's head could have been caused other than by the accused. Mr Tehan referred to evidence that the child would bang his head severely, that there were multiple areas of blunt trauma, and that the death could have been caused by the child striking his head on a door or on furniture. He argued that it was open to the jury to find that the blunt trauma that caused Lewis's death was not caused by the applicant; and that Lewis may have suffered his head injury while the lounge room door was closed, or before his leg had been broken. The thrust of the argument was, I think, that the child might have suffered the blow before he ate his dinner, and that he was experiencing a lucid interval between 7.30 and 9.30 p.m. before Daisy retired to sleep. Accordingly, Mr Tehan argued that it was essential that the jury should be properly directed on causation. He argued that the head injury may have been caused earlier than the fracture of Lewis's leg, and may have been sufficient to numb the pain when the leg was broken, Lewis's conscious state having been depressed to such a level that the child would not react in a normal way to the fracture. Alternatively he argued that Daisy may also have caused the child's death, by actions occurring before a lucid interval took place at around the time when the child ate dinner.

33 Mr Tehan accepted that the issue of causation had been left to the jury, but having regard to the importance of the issue he submitted that the way in which the issue had been left was insufficient because the judge did not relate the directions to the facts and did not tell the jury that Lewis's death could have been caused by acts of persons other than the applicant, including the child himself; that the question was whether actions of the accused were a substantial and significant cause of Lewis's death; and that acts of the accused must be operative in causing his death at the time of death. Mr Tehan at one point put it that the judge had really failed to put the defence case at all, although he accepted that the defence arguments had been put, although not related to the facts and law.

34 Before considering these arguments, it is necessary to recall what was said by Gleeson, C.J. in Doggett v. The Queen[5], as follows -

"In our system of criminal justice, a trial is conducted as a contest between the prosecutor (almost always a representative or agency of the executive government) and the accused (almost always an individual citizen). In the case of a trial by jury for an indictable offence, the presiding judge takes no part in the investigation of the alleged crime, or in the framing of the charge or charges, or in the

calling of the evidence. Where the accused is represented by counsel, the judge's interventions in the progress of the case are normally minimal. The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration. Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused's guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any directions from the trial judge, are said to be relevant to the determination of the ultimate issue. Such a system, sometimes described as adversarial, reflects values that respect both the autonomy of parties to the trial process and the impartiality of the judge and jury.

The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.

When an accused person has been convicted, and appeals, there is often an attempt to present the defence cause in a new way. This appeal provides an example of the necessity, when evaluating criticisms of a trial judge's directions to a jury, to relate those criticisms to the manner in which the trial was conducted."

35 The issues in the present trial were comparatively simple. It was common ground between the applicant's counsel and the prosecutor that the cause of Lewis's death was swelling of the brain caused by blunt trauma. The applicant's case at trial was made perfectly clear at the outset during his counsel's opening, in saying that -

"at the end of the day you will not be satisfied, beyond reasonable doubt, that the head injuries, which are the significant injuries in this case which are the injuries that caused the death of Lewis, were inflicted by the accused man."

In other words, the issue raised by the applicant's counsel meant that if the jury were satisfied that the applicant caused the head injuries suffered by Lewis then that element, causation, had been established. The other issue raised on the applicant's behalf was his state of mind. This was how the case was fought. The principal issue for the jury was therefore the question whether the jury was satisfied that it was the applicant who caused the injuries to Lewis's head.

36 The judge on a number of occasions told the jury in clear terms that they must be satisfied that it was an act of the applicant that was the cause of the death of the deceased. The jury could not, I think, have been under any misapprehension that the question for them was whether they were satisfied that it was the applicant who had caused the injuries to Lewis's head which caused his death. On these issues the evidence of Mr Klug was devastating to the applicant's case, since Mr Klug strongly rejected that the child could have caused these injuries to himself in temper tantrums, nor would he accept that hitting his head with a video cassette or indeed a slap from his mother could have been a sufficient cause of his injuries and death. Causation was thus in issue merely in the sense that the applicant disputed being the person who had inflicted the fatal head injury. It follows in my view that no further elaboration on the concept of causation was required.

37 Furthermore the applicant was represented by experienced and competent counsel. At no stage did the applicant's counsel ask the judge to define causation for the jury. No exception was taken to the directions, nor did counsel seek any redirection. Plainly the judge's directions on causation must have appeared appropriate and adequate to counsel in the circumstances of the trial itself.

38 Insofar as the question of lucid interval was raised in cross-examination of Dr Lynch, the notion of lucid interval accepted that after a child has been fatally injured, the child may not show symptoms for some time. The evidence of Mr Klug was, however, that during a lucid interval there is a deterioration of mental function. Mr Klug's evidence was that if Lewis had suffered the injuries which led to his death before 7 o'clock that evening, the child would not have had a meal, and there would have been a marked deterioration of his functioning thereafter. No evidence of any such deterioration of function was given in the evidence of Daisy, nor did the applicant in his records of interview suggest that Lewis's functioning had deteriorated at this time. In my opinion the judge adequately directed the jury on the question of causation, and that the issue for them to determine was whether the actions of the applicant were the cause of the death of Lewis. This ground has not been established.

Ground 5

The judge erred by failing to give any or any adequate direction to the jury upon the defence of accident.

39 This ground was not pursued.

Ground 6

The judge erred by failing to give any or any adequate direction to the jury upon the reliability of the witness Ms de Los Reyes.

40 Before the judge came to charge the jury, the applicant's counsel raised with his Honour the question whether the jury should be given a warning in relation to Daisy's evidence. Counsel argued that some warning should be given based firstly upon her unreliability having regard to her intoxication and her mental condition and secondly, her interest in the case. In this Court, reliance was placed by Mr Tehan on what was said by Gibbs, C.J. in Bromley v. The Queen[6] to the effect that -

"If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, commonsense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case."

When the matter was raised by the applicant's counsel before the judge's charge, it was submitted that the evidence established that Daisy was a schizophrenic who had taken marijuana on the relevant day and who had conceded she had little memory of what happened that night. It was argued that Daisy clearly had an interest in the evidence she had given, in pointing a finger at the accused, and that she had a vital interest in giving the evidence she gave. All these matters were said to call for her evidence being subjected to careful scrutiny. The judge responded to the suggestion that he should give the jury such a warning by saying that Daisy's evidence basically paralleled and went no further than that given by the applicant in his records of interview. Accordingly counsel was asked how it could be said that her evidence needed a warning when it was in effect identical to the applicant's version.

41 Pressed on these issues in this Court, Mr Tehan said that Daisy had said in her evidence that she went to bed at 9.30, whereas she had said to a number of witnesses such as the ambulance personnel, that she did not go to bed until midnight. This raised the question whether she was an accomplice of the applicant, telling a false story. Accordingly Mr Tehan submitted that the judge should have warned the jury that having regard to her mental condition, her use of marijuana and her interest in the case, they should scrutinise her evidence very carefully before acting upon it. According to Mr Tehan's submission, if Daisy went to bed later, then she had access to the child, may have been frustrated with him and may have had an interest in protecting both herself and the accused.

42 It was never put to Daisy during cross-examination that she had struck Lewis a severe blow at any time on 10 or 11 November. She was cross-examined about whether she had told the ambulance driver that she had gone to bed at midnight on Saturday 10 December, which she denied. She was asked whether she had been diagnosed as a paranoid schizophrenic, which she denied, although she accepted that she had had "a lot of nervous breakdowns". She was asked whether her memory of the night in question was good, to which she responded that she had a clear memory of what had happened that day. Daisy admitted that during the course of the day Lewis had been hard to handle, and that she had slapped him during the course of the day on the face to stop him crying, a couple of times. It was put to her by the applicant's counsel that she had not slapped Lewis very hard.

43 A careful reading of Daisy's evidence and cross-examination bears out the judge's view that her evidence was basically identical to, and went no further than, that given by the applicant in his interviews with the police. The judge not only gave general directions relating to the honesty, reliability and accuracy of all witnesses, but also specifically outlined all the criticisms that the applicant's counsel had made of Daisy as a witness. These included that she had a history of mental instability, that she had perpetrated previous acts of violence, was frustrated with Lewis's behaviour, as evidenced by the phone call she made to Vaughan Blackley, that she had slapped Lewis's face on the day he died, that her evidence contained various discrepancies and that the defence had submitted that her evidence as to the time she went to bed should be rejected, and that she had access to Lewis after the time she said she had gone to bed.

44 In all these circumstances in my view no occasion arose for the giving of a Bromley warning in relation to Daisy's evidence. Ground 6 is not made out.

Ground 7

The judge erred in failing to give any or any adequate directions to the jury upon propensity evidence.

45 Under this ground Mr Tehan submitted that evidence had been admitted of the applicant having caused injuries to the deceased. The judge directed the jury that -

"I should also instruct you that, in determining an accused's state of mind, you may have regard to any other acts of violence which you find were perpetrated at the same time. In other words, you do not have to look at the fatal act in isolation. You are entitled to take all of the circumstances into account. However you must be satisfied beyond reasonable doubt that the fatal act itself was accompanied by one of the relevant murderous intents."

Mr Tehan made no complaint about these directions nor upon what had been said by the judge in relation to motive. He submitted however that it was important for the jury to be directed that they should not engage in an impermissible line of reasoning from such evidence, that it would be wrong to reason that just because the accused had committed other acts of violence that he was the type of man who would commit the fatal act and do so with murderous intent. He argued that it was easy for the jury to engage in impermissible reasoning from propensity evidence, particularly in an emotive trial concerning the murder of a child where the accused admitted having caused serious injury to the boy. He argued that the nature of the applicant's out of court statements also made the giving of such a direction important and that the jury should have been directed upon limited use of this evidence.

46 In my view there is nothing in this ground. The Crown alleged that all of these actions were being carried out by the applicant at the same time, that is after 9.30 p.m. when Daisy had gone to bed. The Crown's case was that the applicant did all these things to Lewis in order to shut him up, that the applicant had lost his temper with Lewis and that all his actions were a result of his loss of control in this way.

47 In my opinion this was not a propensity case. No request was made for a direction upon propensity evidence before the judge's charge, nor was any exception taken or redirection sought after the charge. The Crown case was that the applicant had engaged in a violent attack on the deceased that resulted in the child sustaining multiple injuries, one of which was fatal. Ground 7 also fails.

Ground 3

That the verdict was unreasonable and cannot be supported having regard to the evidence.

48 Mr Tehan put to the Court that although this ground was framed as being a "weight of the evidence" argument, it was sought to put the ground as being that the verdict was "unsafe" having regard to the complaints advanced under the other grounds of appeal.

49 As the judge said in rejecting the submission of "no case" made at trial, there was ample evidence to support the verdict. It seems to me that the Crown case was a very strong one. The evidence of Mr Klug was damning to the applicant, whose statements in his second record of interview could also have been taken by the jury as a complete admission to his having struck the blows to Lewis's head which led to his death. Upon the whole of the evidence I have no doubt that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt.

Sentence ground

That the sentence was manifestly excessive in all the circumstances of the case.

50 Under this ground Mr Tehan submitted that a sentence of 19 years' imprisonment with a non-parole period of 14 years was manifestly excessive. He argued that the judge had said in sentencing reasons that the killing was not premeditated and the applicant did not have a specific intention to kill Lewis. The judge said that the fatal violence occurred at a time when the applicant had temporarily lost his self-control. Contributing factors to this were, no doubt, the taking of antidepressants together with alcohol and marijuana, joined with a high level of immaturity and dependency. The applicant was on the evidence 30 years old, still relatively young and with a good work history. He had some potential to develop artistic talents and had ongoing family support. He had exhibited shame and distress and had been shocked to discover the child's death, a finding supported by his statements on the morning of 11 November. Both Dr Walton and Mr Joblin in their reports had indicated that he was a significant suicide risk in custody and that he was extremely psychologically fragile. Both had opined that the applicant had a highly-dependent personality.

51 Deterrence and denunciation were, however, important sentencing considerations in this case. The applicant, on the evidence and the jury's verdict, had used a very substantial amount of force in the infliction of the fatal injury and had grossly abused a position of trust and his position of power and control over a young child. In my view the sentence was plainly within range. Furthermore, the non-parole period is very short and, indeed, lenient, having regard to all the circumstances.

52 The applications for leave to appeal against conviction and sentence should both be dismissed.

53 I agree that the applications for leave to appeal against conviction and sentence should be dismissed for the reasons given by Charles, J.A.

[1] R. v. Harrison [1957] VicRp 15; [1957] V.R. 117 at 125-126.

[2] [2001] VSCA 136 at [65]- [67] per Vincent, J.A., with whom Phillips and Chernov, JJ.A. agreed.

[3] R. v. Vollmer & Ors [1996] VicRp 9; [1996] 1 V.R. 95.

[4] R. v. Evans & Gardner (No. 1) [1976] VicRp 52; [1976] V.R. 517.

[5] (2001) 208 C.L.R. 343 at 346.

[6] [1986] HCA 49; (1986) 161 C.L.R. 315 at 319.