R v Jeong Ming FOO [2008] NSWSC 587 | Case summary

R v Jeong Ming FOO [2008] NSWSC 587 | Case summary | Zoe

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JUDGMENT Introduction 1 This is a trial by judge alone following an election by the accused under s 132(1) of the Criminal Procedure Act 1986 made on 6 May 2008. That election, endorsed with the consent of the Crown, was filed in this court on 7 May 2008. 2 The accused is charged with the murder of his son You Qi Foo ("the deceased") who died on 31 August 2006. The deceased was born in January 2006 and was the second child of the accused and his wife Jui Ying Hoon. Their first son Dunyao was born in January 2003. 3 The accused was born in Singapore in 1973. He was married to Jui Ying Hoon in 2001. They came to Australia on a Permanent Residency Visa in May 2005. At the time of the events that give rise to the present charge, the accused was living with his wife and the deceased, together with his sister and her husband in a townhouse in Telopea, a suburb of Sydney. Their first son was temporarily living in Singapore with the accused's parents in anticipation of the birth of the deceased. 4 At about 11.30am on Tuesday 14 March 2006 the accused and his wife attended Dr Goh Chong Maw at the Meadowbank Medical Centre for the purpose of having the deceased vaccinated for tetanus, diphtheria, inactive poliomyelitis and hepatitis B as well as pneumococcal conjugate. He received two injections, one in each buttock. The deceased was apparently normal after the immunisation and Dr Maw detected no abnormality. 5 The deceased, who had also at all times before that been a normal healthy baby, would appear on one view to have had a mild reaction to the vaccine but in any event to have developed symptoms that made him irritable and increasingly sleepy although restless with a fever and he became uninterested in feeding. This continued for the next several days. On Sunday 19 March 2006 at approximately 3.00pm the accused and his wife took the deceased to their local general practitioner Dr Jeyaratnam at the Carlingford Medical Clinic for a consultation. The doctor advised them that the child was in a satisfactory condition but that if he deteriorated - in particular, if there was any lethargy, decrease in feeding, any further vomiting or bile stained vomitus - they should immediately take the child to Westmead Children's Hospital for treatment. Dr Jeyaratnam was of the opinion that on the day of the presentation the deceased was a reasonably healthy baby. 6 On the morning of Monday 20 March 2006 the condition of the deceased changed dramatically. It will be necessary to return to the circumstances in which this change occurred in more detail later in these reasons. Briefly, however, according to the accused, when he was carrying the deceased from the downstairs portion of the townhouse upstairs to hand him to his wife, the crying or breathing pattern of the deceased audibly changed and he appeared to go soft or limp in the arms of the accused. Rather than attempting to resuscitate the child, or call an ambulance to the premises, the accused and his wife drove immediately to the hospital where he was delivered into the care of the medical staff. 7 The deceased was presented to the Emergency Ward of Westmead Children's Hospital at approximately 9.00am on that day. His mother handed him to Sister Dollarhide at the triage desk. He was by then completely grey in colour, totally limp and was not breathing. It was later determined that the child had had a cardiac arrest. She hooked up the child to oxygen and commenced CPR. He was transferred to the ICU. It took approximately 45 minutes to revive the child. 8 The deceased was in due course found to have sustained injuries that included a right parietal skull fracture, subdural intracranial haemorrhages with subacute collection in the occipital region and posterior fossa, probably of a different age, suspected fractures of the seventh and eighth left ribs, the fourth and fifth right ribs, and a possible fracture of the left humerus. Subsequent examination of the deceased revealed bilateral intra-retinal haemorrhages and a shearing injury to sections of the brain consistent with, or suggestive of, a non-accidental injury such as violent shaking. The deceased was also found to have had early stage vitamin D deficiency with a mild elevation in parathyroid hormone and vitamin C deficiency with no evidence of scurvy. There was no evidence of osteopenia or osteogenesis imperfecta. 9 The deceased continued to be cared for at the hospital in a serious but stable condition for four months before being transferred to the Allawah Hospital at Bexley on 25 July 2006. He remained there until 31 August 2006 when he died from pneumonia secondary to injuries that he had suffered at some time prior to his presentation to Westmead Children's Hospital on 20 March 2006. The facts 10 Prior to the death of the deceased, the accused gave two electronically recorded interviews to the police and cooperated as well in the making of an audio/video recording of a walk-through of the Telopea premises where he resided with his wife and the deceased. These all became evidence without objection in the proceedings. A third electronically recorded interview with the accused on 9 December 2006 following his arrest on that day was also tendered without objection. It produced no significant material beyond an exercise by the accused of his right to remain silent. 11 The accused did not give evidence. However, his detailed version of the circumstances and of the events that took place between the date of the deceased's immunisation and the presentation to the Emergency Department of the hospital is to be found in the ERISPs conducted on 24 March 2006 and 31 March 2006 and the electronic recording of the walk through of the premises on 19 April 2006. These matters are set out and discussed in more detail below.

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12 In the first ERISP the accused said that, on the Tuesday prior to the deceased's admission to hospital, he had been immunised following which he had become quite unsettled with a fever. The accused said the deceased was not very stable and was refusing to eat. On the morning of Monday 20 March 2006 the accused woke up at about eight o'clock. The deceased was crying so he brought him downstairs to try to feed him there but he did not want to eat. The accused put the deceased on a bassinette that was located downstairs and went to the toilet. When he came back from the toilet he could hear the deceased crying louder and louder. The accused said that he then went and picked up the deceased "very fast" and tried to pacify him but he continued to cry. He then decided to take the deceased upstairs to pass him to his wife but before he could do so the child's body went soft. He said, "It's like whole body is just, like, soft and without no, without any energy". He then passed the baby to his wife, asked her to change, and they rushed him to hospital. 13 The accused said that on the Wednesday following the immunisation they had found that the deceased had "a big fever" and so they gave him Panadol. It would appear that he initially improved slightly but after that on Thursday the deceased did not want to sleep. The accused thought he might have had a fever. However, after Thursday he wanted to sleep more and more. The accused said that around Saturday or Sunday the deceased woke up every hour and cried constantly. On Saturday morning the accused went to a trade show but that afternoon the deceased was again not feeding well. He said, "he just want to sleep". The accused also said, "then after sleeping for a while he want to wake up again and cry, cry, cry again. We try to feed him. He still did not want to feed". 14 On Thursday 16 March 2006 the accused had noticed that the deceased had cracked lips. He noticed this after the deceased had had his face on the accused's shoulder. This was close to midnight and the accused said he was up at that time trying to pacify the deceased and feed him. The accused described how he held the deceased over his shoulder with one hand on his bottom and the other hand supporting his back. The accused noticed that the deceased was crying a lot more on Thursday and Friday and was not taking as much milk from a bottle as normal. 15 The deceased went to visit his uncle between approximately 8.30am and 1.00pm on Sunday. When he returned his wife told the accused that the deceased had vomited. This had a greenish appearance. The accused and his wife were so concerned that they made a call to the Westmead Hotline and described what they had seen. They were advised to take the deceased to a doctor. They took the deceased to Dr Jeyaratnam at about 3.00pm that day. (Dr Jeyaratnam gave evidence that the deceased appeared to her to be normal following the examination that she performed). The deceased would appear to have slept fitfully on that Sunday night waking hourly when he would be fed and comforted. This pattern continued throughout the night until the following morning. 16 The accused described on a number of occasions how he picked the deceased up "very fast" from the bassinette that morning. He placed his hands around the baby's chest under his arms and lifted him to a position on his shoulder without supporting his head. The accused said that he then rocked or jiggled or balanced the deceased as he walked around the room attempting once again to pacify him. The accused also described the change in the way that the deceased was crying at the point where his body went soft or limp. The accused said that when he tried to pass the deceased to his wife he said, "I hear some, the, the crying is, like, a bit different, like, (DEMONSTRATES AUDIBLY), something like this. It's like, I don't know how to describe it but it's, like, not, not very good. Then the whole, then his whole body just become, like, soft". The accused said that he wanted to pass the deceased to his wife because she could normally "pacify him easier". 17 The accused recalled that they arrived at the hospital sometime after 8.30am on Monday 20 March 2006. The accused was subsequently informed that the deceased had had a cardiac arrest. 18 Part of the electronically recorded interview with the accused on 24 March 2006 included the following questions and answers: "Q. And has the hospital spoke [sic] to you about what injuries You Qi does have? A. Yeah. It's mentioned that the, the bleeding and, like, the bleeding might be due to, like, shaking of the baby. So, that's the cause of it. So, I'm thinking that that may be caused by me because I'm bringing too fast and that's why I feel very guilty about.

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Q. OK. A. Now, want to just bring him up to my wife because my wife told me, my wife is, like, probably he can [feel is] with my wife is closer, normally my wife can pacify him. Just want to bring him up. It's only then I find that suddenly something is not right and he's just go limp and that's how the whole thing just occur in this." The second ERISP - 31 March 2006 24 The accused gave another description of what happened on the morning of Monday 20 March 2006. He described once again being upstairs and taking the deceased downstairs to try to pacify him and to give him a drink. However, the deceased did not want to drink and kept "crying and crying". The accused put the deceased temporarily on the bassinette and went to the toilet. When he returned the deceased was crying "louder and louder", and the accused became anxious. He said, "I just pick up this way", demonstrating what he did as he said this. The accused said that he tried to pacify the deceased but, in effect, he continued to cry. He said he decided to take the child upstairs to give to his wife saying, "because my wife normally have a more soothing effect". The accused then said the following: "A. OK. So when I go upstairs I was in the, in the room where I'm going to pass it to my wife. Pass the baby to my wife. What happened is that the, there's, the crying sound maybe becomes different, instead of crying become a, there's some difficulty in breathing that kind of noise. . . . Then what happened is that after he just become limp." 25 The accused said that when he put the deceased on the bassinette he did so gently as normal. He was in the bathroom for less than two minutes. He described and demonstrated once again the way in which he picked the child up from the bassinette. He said, "So I just like hold to his, below his arm . . . pick up fast this way". The accused said that he did not really remember how the deceased reacted when he picked him up that way. He said, "What I know is that I just, I just to pick him up, and just, Oh don't cry, don't cry, don't cry and just . . .". He said that he probably did not support the child's head when he picked him up. 26 The accused said that the manner in which he picked up the deceased on that morning was probably faster than the normal way that he would pick him up. He was asked whether at any stage he was feeling frustrated by the child not having stopped crying throughout the night. The accused replied, "Probably but a bit of like more on the worrying side". 27 The accused was informed that the deceased had a large subdural haemorrhage on his brain and that the doctors had indicated that it had been caused by a non-accidental injury. The accused was asked if he understood what that meant. He replied, "Not accident, that means that, means done on purpose". The accused was asked whether or not he knew how the deceased could have sustained such an injury. The accused said that he did not know. He also said that he did not know how it was possible to get such an injury. The accused was told that a shaking of the baby causes the injury. The accused said, in effect, that he did not think anything he had done was "a shaking movement". He had never seen his wife shake their son, and he had not seen anyone else do so either. 28 The accused was then informed that the deceased had a fracture to his skull. That part of the interview in which this information emerged is as follows: "Q. Yeah we've been told that there's a, a fracture to his skull. A. Huh?

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Q. Did either of them deal with you in a defensive way at all, or were they open to your treatment, examination and diagnosis? A. They were open to my treatment and examination, yeah." Keng Boon Foo 39 The sister of the accused and her husband gave evidence in the Crown case by way of written statement about what occurred on and after 20 March 2006. These witnesses were not cross-examined on their statements as they were in Singapore and unavailable to give oral evidence at the trial. No application was made for their evidence to be given by audiovisual link. Mr Boulten SC on behalf of the accused conceded that the grounds for the tender of those statements had been made out but sought to reserve his position to the extent that some material in one of them appeared to be inconsistent with the version of events given by the accused. Mr Boulten sought to emphasise that the position that he adopted ought not to be construed as an acceptance by him of the allegedly inconsistent evidence as the preferred version of events that it described. The uncle of the accused gave evidence about events on Sunday 19 March 2006. Matthias Pfeiffer, the accused's employer also gave evidence concerning some aspects of the accused's employment and related issues. 40 The accused's sister Keng Boon Foo returned to Singapore recently. The Crown applied to rely upon a statement given by her on 14 April 2006. This was not opposed. At that time she was living with the accused and his wife and her husband at the Telopea premises as previously described. 41 Ms Foo said that at the end of January 2006 the accused and his wife took the deceased to Singapore to visit her parents. She and her husband Hartanto Hartanto were already there at that time having arrived a week earlier. She and her husband returned to Australia in early to mid February. The accused with his wife and the deceased followed a week or so later. 42 Ms Foo said that since the birth of the deceased she and her husband had never been left alone with him to baby sit. The accused and his wife had always been present. She played with the deceased in the presence of his parents. The parents were his main carers. 43 It was Ms Foo's opinion that her brother and sister-in-law were good parents. She described the deceased as very fussy. He had to be fed at a certain angle and in a certain way. He liked to be picked up and carried all the time. Her brother and sister-in-law were the only ones who fed him. She sometimes heard the deceased crying during the night but not very often. She said that she was a heavy sleeper. 44 Ms Foo was aware that the deceased had been taken to be immunised on 14 March 2006. She remembers that date, as she was unwell and stayed home from work. The deceased's parents left in the morning and returned sometime in the afternoon. When they arrived home, the deceased was irritable. By that she meant "uncomfortable". He cried and he would go to sleep and wake up and cry again. After his immunisation the deceased was more irritable than normal. She said he was "different". He would be alright for a while and happy to play and then he would start to cry. He became fussier with his feeds. 45 Ms Foo recalls that one morning she went downstairs and her sister-in-law was there already and she commented that the deceased had been awake all night. When she returned from work later that day she was told that the deceased had been asleep all day. On Sunday 19 March 2006 she went out and when she returned her brother and sister-in-law were not at home. They arrived late in the afternoon. They informed her that they had taken the deceased to a doctor in Carlingford. Ms Foo said that the deceased seemed to be alright. 46 She did not hear the deceased crying at all during the night of 19 March 2006. On the morning of 20 March 2006 she said she awoke at about 7.00am. She went to the bathroom, brushed her teeth, changed her clothes and left for work. That was her usual routine. She thought that she would have left the house between 7.30am and 7.45am. She and her husband left at the same time as he drove her to work. When they left she recalled that her brother and sister-in-law were not up. She assumed that they were still asleep as the door to their bedroom was closed and there was no noise coming from within. 47 Ms Foo received a telephone call from her husband at around 9.00am to inform her that the deceased was then being taken to hospital by his parents. She went to the Westmead Children's Hospital after work to visit him. She spoke to her brother and sister-in-law and they were what she described as both in shock and very sad about the deceased. She said that they were unsure what was wrong with him. 48 On the evening of 24 March 2006, Ms Foo went to the hospital to see the deceased. When she arrived she spoke to her sister-in-law who told her that her brother had been taken to Parramatta Police Station to be interviewed. She said, "The doctors have said that You Qi has severe bleeding at the back of the head, behind the eyes and more on the left eye and it could cause permanent brain damage". Ms Foo said, "What [sic] the cause?" Her sister-in-law replied, "Due to shaking". Ms Foo replied, "How do you mean shake?" The deceased's mother did not say anything. Ms Foo thought she was crying and so she did not ask her anything further. 49 Ms Foo said that prior to 20 March 2006 the deceased was a happy child. He would smile at her when she played with him and he would respond and always make sounds himself. She said that her brother and sister-in-law were very happily married. The accused is very mild and very softly spoken. She said, "He wouldn't hurt anyone". The accused and his wife shared in the care of the deceased. His mother would normally express her milk in the bedroom during the day and in the bathroom at night. The accused is a very good father who would help to look after the deceased. His parents would take turns in nursing him if he were upset. They were both very patient when they were attempting to pacify him when he was crying. She said that her brother and sister-in-law are both Buddhist and are very dedicated to their religion. 50 Finally, Ms Foo said that she had never seen her brother or sister-in-law shake the deceased. She had only seen them nursing him in their arms and rocking him gently. Moreover, she had only ever seen them pat him gently on his nappies. She had seen them pat him on his back when they were trying to burp him. Hartanto Hartanto 51 Hartanto Hartanto is Ms Foo's husband. He also gave a statement dated 14 April 2006. He said that he was a self-employed photographer and worked from home. He confirmed that about two months before the deceased was born the accused took Dunyao back to Singapore so that his grandparents could look after him. The accused and his wife wanted to be able to devote all their time to the new baby when he was born. This would have been difficult with a three-year-old child around. 52 The accused was only away in Singapore for a couple of weeks and was home when the deceased was born. The accused and his wife were very happy. The deceased came home from hospital two or three days after he was born. The accused took a couple of weeks off work to help his wife with the new baby. He cooked and prepared things for his wife and generally looked after her so that she could look after the deceased. His wife was very weak after the birth and she stayed in bed most of the day for at least four or five days. 53 For the first month the deceased mostly slept and was very demanding. About a month after he was born his parents took him to Singapore for Chinese New Year. They were away in Singapore for about two to three weeks. When they returned only the deceased came with them. He said that they wanted to look for an apartment of their own because it was a bit crowded at the house in Telopea with everybody there. They wanted to find a place of their own before Dunyao came home. In general terms the deceased seemed to be a bit more demanding than his brother. He appeared to cry more often and seemed more particular about certain things. 54 Hartanto confirmed that about five days before the deceased was admitted to hospital he was immunised. Following that he was crying a lot more for about three days. He was not sleeping very well. Due to the nature of his work, Hartanto sometimes had to work through the night and his office was next to the bedroom where they slept. He could hear the deceased wake during the night and he could hear the deceased's parents wake up. Sometimes the deceased would settle down and go back to sleep for maybe three to four hours but at other times it was worse and he might only go back to sleep for an hour or so. 55 During this time the accused was not at work very much and was mostly at home. Both the accused and his wife were very tired due to lack of sleep. He told them that it was normal for babies to cry from time to time and that they just had to be patient. He said that there were about two days when the deceased was crying a lot and not sleeping very well and his parents took him to a doctor during the daytime. Later that day they were at home talking over dinner as a family and the accused and his wife told him that the doctor was not too worried about the deceased who was probably just unsettled by the immunisation. They were told to take him back to the doctor in a couple of days if he did not improve. 56 On the morning of Monday 20 March 2006 Hartanto got up and was moving around the house. At about 7.15am he turned on the computer in his office but did not hear any noise coming from the bedroom of the accused. At about 8.00am he drove his wife to work at West Ryde and stopped locally to have breakfast. He was there for about 15 to 20 minutes and then drove home. He arrived back at about 8.45am. 57 When he got home the accused was trying to feed a bottle to the deceased in the dining room. The deceased looked like he was refusing to feed. The accused was sitting in a chair with the deceased cradled in his arm. He was supporting the deceased's back with his arm and the deceased's head was resting on his upper arm and chest. The accused was in his sleeping clothes. He did not remember what the deceased was wearing but he was not wrapped up in a blanket. 58 The accused said to him, "The baby is not feeding again". He said, "You better bring You Qi to the hospital". The accused replied, "OK". Just about the same time that this was happening, the accused's wife came downstairs dressed in her pyjamas. She was washing up some bottles and things she used to express her milk. Both she and the accused were very worried and she was crying. From the accused's face he could tell that the accused was upset. In his estimation, both the accused and his wife were more upset than he had seen them in the past. This was particularly so in the last few minutes before they went to hospital that morning. 59 The accused passed the baby to his wife and went upstairs to pack some things. Hartanto stayed with the deceased's mother. The deceased was crying and his mother was unable to settle him. This was all happening in the space of a few minutes and Hartanto said that he was upset and worried about what was going on as well. The accused and his wife left the premises with the deceased destined for the hospital. A couple of hours later the accused rang him at home and told him that they would be at hospital for a few hours. He was not told anything of the deceased's condition. That night he went to the hospital with his wife and saw the deceased. It was at that time that he learnt that the deceased was very sick. 60 Hartanto was informed that the deceased was being treated for a range of problems, including having been shaken vigorously. He said that in his observations of how the accused and his wife had looked after the deceased, he had never seen them mistreat him in any way. Neither the accused nor his wife had said anything to him since the deceased went into hospital that suggested that they knew how he was injured. He said that he had no knowledge of his own about how the deceased had come to sustain his injuries. Boong Chong Neo 61 The accused's uncle Boong Chong Neo gave evidence that the accused visited him on Sunday 19 March 2006 at his premises at Chester Hill. This was a regular occurrence. The accused arrived at about 9.00am and left at about 12.30 or 1.00pm. He came alone. The accused is his sister's son. She informed him on the afternoon of the following day that the deceased had been taken to hospital. 62 Although the accused would normally stay for lunch, on the Sunday in question he informed Mr Neo that the deceased was ill and that he had to leave early to take him to a doctor. Mr Neo spoke in praiseworthy terms about all aspects of the accused's character. He regarded him as honest, with no bad habits and said implicitly that he was a good father. Matthias Pfeiffer 63 Matthias Pfeiffer was called in the Crown case. He worked with the accused in a computer consulting engineering company. They worked closely together. He said that the accused was trustworthy and never came into conflict with customers. Their work was very stressful and the accused was good at his job. The accused continues to be employed by this company. Mr Pfeiffer spends between 80 per cent and 90 per cent of his time at work with the accused. They travel interstate to the premises of clients. Mr Pfeiffer visited the accused at his home on a few occasions for a meal. He said, "I have never seen Jeong Ming aggressive or lose his temper in professional life or social life". He also said, "Jeong Ming has my complete trust". The accused had never confided in Mr Pfeiffer about any inappropriate handling by him of the deceased. Mr Pfeiffer said that he would be very surprised to learn that the accused might have done that. Witnesses at the hospital Allyson Jeans 64 Allyson Jeans was employed at the Westmead Children's Hospital in 2006. She provided a statement dated 30 May 2006 for use in this trial. 65 The deceased came under her care on Tuesday 21 March 2006, the second day of his admission to the hospital. She had a conversation with the accused at the hospital on Wednesday 22 March 2006. He was at the ICU with his wife and she sat next to him and asked what was wrong and whether he had any questions. Although she said that she did not remember his exact words, the accused asked her if he could have hurt the deceased or done "this" to him when he was crying. Whilst the accused was asking her these questions he was patting his shoulder as if he were holding the child. She said, "This was to show me how he had patted You Qi". This was demonstrated in court during her evidence in chief. The following questions and answers related to that demonstration: "Q. Are you able to show his Honour, and stand up or however this is comfortable for you, to the best of your recollection what it was that Mr Foo did? What actions he actually did in relation to that point in your statement, paragraph 7? A. He was sitting down next to the bedside and basically had his hands cupped and was just patting like this and was concerned that possibly why You Qi was so sick was because he was trying to console him prior to him getting ill.

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Q. And is that the only action that you can recall him demonstrating to you before the conversation moved on to what the numbers on the monitor meant? A. Correct." 66 Ms Jeans said that she tried to console the accused "and told him that you would have to shake a baby pretty hard to do damage to the baby's brain". The accused then asked her about all the numbers on the monitor that displayed such things as respiratory rate, heart rate, blood pressure and oxygen saturation and carbon dioxide measurement. To her observation, both the accused and his wife "appeared visibly upset and not out of the norm from [her] experience in working in the PICU". She said, "they were equally distressed about You Qi's appearance". 67 Later that afternoon Ms Jeans saw Michelle Jubelin in the ward at the PICU. She told her of the conversation that she had had with the accused. She said she did this, as she "was concerned for his welfare". She said "both the parents pretty much sat next to the bedside for the duration of the two days of me looking after You Qi". She described them as "understandably upset". Michelle Jubelin 68 Michelle Jubelin gave a statement dated 28 March 2006. On 24 March 2006 she took part in a meeting with the accused and his wife and Dr Wilkins during which it was explained that the deceased had been found to have sustained subdural and retinal haemorrhages. She said that the deceased's mother appeared very composed and asked questions about his (then) long-term prognosis. The accused started to slump over and put his hand on his forehead. He appeared to be upset. 69 Miss Jubelin said that she later explained her role. When all the doctors had left the room she asked the accused and his wife, "Were you surprised by what Dr Wilkins has just explained to you about You's injuries?" She said that at this point the accused became quite teary and said, "No. I picked You up from the bed and I didn't support his head and I patted him very hard". As he did so the accused demonstrated picking up a baby, putting it over his shoulder and patting it with his hands. Ms Jubelin said that he placed his hands one under the other, just above chest height, with his arms out horizontal and parallel to one another and moved them back and forth at the same time. The accused said, "I may have hit him too hard. The baby started to cry louder and when I went to give baby to [my wife] when we noticed the baby's breathing was funny". 70 Ms Jubelin said that she did not ask any further questions about how it happened. She said that she went on to explain what he needed to do about liaising with CPU and DOCS. She said that the accused was visibly upset and said, "I don't care what punishment I get, I deserve it". There was then a short silence and the accused's wife said, "Would you mind leaving us alone at this stage". Ms Jubelin then left the room. 71 About ten minutes later she was walking past the interview room when the accused wife came out and asked if they could ask some questions. She went back into the room and sat down with them. She was asked what would now happen. Ms Jubelin explained that it was early days but that she would be making a report to DOCS and that someone would want to come and talk to them as well. The accused then said, "Will I be arrested?" She replied, "I'm not sure at this stage what the process will be". The accused asked, "What is the worst scenario?" She replied, "If You died, you could be charged as a result". The accused said, "Because I caused injury, will I have to pay to the medical costs of You whilst he is in hospital?" A few days later the accused's wife said to her, "I don't understand, we are not a violent family". 72 Ms Jubelin demonstrated in the witness box the movements shown to her by the accused that are described above. She gave the following evidence to explain what she saw: "Q. Now you're doing that in a fairly gentle fashion? A. Right.

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Q. Yes, please. A. 'Meeting held with parents, Barry Wilkins and myself to discuss results of test. Barry explained that as a result of the retinal and subdural haemorrhage we need to refer to CPU and that a report to the Department of Community Services needs to be made. After the meeting with Barry I asked the parents if they were surprised by the findings. Dad became very teary and disclosed that he was not surprised. He then proceeded to say that on Monday, 20 March You Qi had been restless all night and both parents had minimal sleep. He explained that You was crying in his bed and he picked him up and placed him over his shoulder stating that he wasn't supporting his head and begun to shake him while he was over his shoulder . He then describes his crying getting louder and he then gave him to mum and they noticed that his breathing began to go funny. Have explained to dad that we will be referring to CPU and that a report to DOCS will be made. Contacted the DOCS helpline, reference number 1-7JMHPS, and have liaised with Mark Palmer from CPU who will be following up. Mark has also advised Lara Hodgen from JIRT will continue to follow up." (Emphasis added)'." Suzanne Foley 77 Suzanne Foley was a social worker at the Westmead Children's Hospital in 2006. She was present with Dr Norrie when the accused gave the demonstration of how he picked up the deceased from the bassinette on Monday 20 March 2006, to which reference is made elsewhere in these reasons. Her description of what she observed is in accordance with all other versions of the same event. The expert medical evidence Dr Wong 78 A paediatric radiologist, Dr Wong, called in the Crown case, reported that chest x-rays of the deceased on 20 March 2006 demonstrated a healed fracture involving the fourth and fifth ribs on the right. These fractures would have occurred at least three weeks prior to the date of the x-ray as they had almost completely healed. Plain x-rays of the humeri and right tibia performed on 7 April 2006 demonstrated periosteal reaction along the shaft of the bones consistent with posttraumatic remodelling reaction. These injuries appear to have occurred a few days before 23 March 2006, but could have occurred up to seven days earlier. A CT head examination on 25 March 2006 demonstrated a non-displaced skull fracture of the parietal bone and bilateral haematomas, larger on the left side. There were also bilateral subdural haematomas in the posterior fossa also greater than two weeks of age. There was fresh blood at the interhemispheric fissure between the two cerebrums of less than ten days of age. 79 Dr Wong was of the opinion that the presence of new and old blood in the subdural space of the brain and the shearing injuries to the brain were most likely to have occurred with shaking of the deceased. The healed or healing rib fractures that he observed and evidence of acute bony injuries without fractures of the humeri and right tibia were most likely in his opinion related to compression of the chest wall during handling and rough handling of the limbs. This was all consistent with non-accidental injuries of the head and skeletal system that occurred on different occasions. 80 Dr Wong expanded upon his report in oral evidence. He spoke of the healing fractures of the fourth and fifth ribs on the right. He said that they had occurred at least three weeks prior to the first x-ray. He also said that there was no way of aging the separation of skull sutures in an 11-week-old infant. Accordingly, there was no way of knowing how long that condition (being the parietal fracture of the deceased's skull) had persisted. He said, "the degree of separation of the skull sutures depend[ed] on the size of the expanding abnormality in the brain. It [did not] relate to how long the abnormality ha[d] been there". 81 Dr Wong was asked questions about the degree of force that might be required to lead to a fracture of the humerus of a child of the age of the deceased. His evidence was as follows: "Q. And what sort of force would you expect would create an artefact such as we've seen here? A. Which?

[80]

Q. Any other particular form of handing of the child likely to create such an injury? A. Probably not. I think that's probably the most likely situation." 82 He also said that a moderate degree of force would have been required to cause an injury apparently detected to the deceased's right tibia. He said: ". . . the injury of the right tibia would be caused by a similar situation as what you described with the right humerus. It's basically holding onto the tibia or the leg or the lower leg, and maybe lifting the child without support and there may be a degree of twisting injury as well in that situation." 83 Dr Wong agreed that the deceased's injuries to his tibia and his humerus could have been caused as many as 10 days prior to 23 March 2006. 84 The deceased was diagnosed as having sustained a shearing injury to the brain that caused loss of consciousness and cardiac arrest. Several medical specialists expressed the opinion that his death was as the result of that injury. Dr Wong shared that view. When asked to describe what such an injury involved, he gave the following explanation: "Q. Can you describe to his Honour the nature of those injuries, please? A. Okay. It was not just the corpus callosum, but also the deep white matter of the brain. The external capsules and the occipital lobes. These are just various parts of the brain, and the injuries are known as "shearing injuries", and what it is, is the effect from the acceleration and deceleration forces on the head. Basically the brain consists of grey matter and white matter. The grey matter is where the neurons or the brain cells are, and white matter is the nerve fibres. So there is a junction between the grey matter and the white matter in the brain, and it is this particular location that shearing injuries occur because there is a slight difference in density between white and grey matter, and when you have an acceleration and deceleration injury you get shearing forces at the border between grey and white matter.

[91]

Q. So it is just not settled, as we speak here, start of the 21st century, just how much you need to do to hurt a baby like this? A. No." Dr Munns 91 Dr Munns is a specialist in paediatric endocrinology. He prepared a report that was tendered in the Crown case. He also gave oral evidence at the trial. He expressed the opinion that the deceased's bone injuries were not explained by vitamin D deficiency or an underlying bone fragility disorder. Even though the deficiency was relatively severe, the effects of that deficiency on the child were mild. He was of the opinion that the deceased had a skull fracture but that the vitamin D deficiency was not leading to a bone defect. He "could find no evidence to suggest that the bones were weaker so as to explain the skull fracture". He said that that would be the same in relation to the fracture of the left arm and also in relation to the apparent or possible rib fractures. He agreed that the deceased also had a vitamin K deficiency but said, "the role of vitamin K in bone strength is yet to be established". 92 Dr Munns did not accept that there were alternative explanations for the cause of bony injuries sustained by the deceased such as the effects of immunisation or air travel to and from Singapore, being head-butted by his older brother or as a side effect of CPR when treated in the emergency department of the hospital immediately following his admission. Dr Webster 93 A paediatric neurologist, Dr Webster, called in the Crown case, examined the deceased on 24 March 2006 in the Paediatric Intensive Care Unit of the Westmead Children's Hospital. He reported that on that occasion the deceased showed minimal response to stimuli, but had some spontaneous respiration with a full pulsatile fontanelle. He observed bilateral retinal haemorrhages. Neurological signs were very abnormal. An MRI from the preceding day showed evidence of diffuse damage to the white matter of the brain. The distribution of these images was considered to be atypical for changes that might be seen after a prolonged hypoxic event or cerebral infarction related to low blood pressure. There were chronic, as well as subacute, components noted in the subdural fluid collections shown on the MRI. It became clear to Dr Webster that the deceased had suffered a severe and irreversible neurological injury. He was of the opinion that the evidence was consistent with non-accidental traumatic head injury resulting in severe brain damage. 94 Dr Webster also gave oral evidence with respect to the assessment or estimation of the timing and aging of the brain injuries suffered by the deceased. With respect to the deceased's severe and irreversible neurological injury, he agreed that the timing of that injury was approximate to his sudden decline into unconsciousness and subsequent presentation to the hospital. He was asked whether or not he was able to put a time limit on that process. He said, "No, I don't think I can accurately". He went on to describe the process as follows: "A. I think the unconsciousness resulted from, perhaps not so much from the haemorrhage, but the damage to the brain underlying it. So I think the unconsciousness was a reflection of the brain damage. What I can't say is precisely at what time - the most the severe injury that caused that happened. In other words, whether there were preceding injuries, but it seemed like the most likely thing was that he had a significant injury within the period of time before him coming in, and there was some suggestion from the history provided from his parents that in the week preceding his admission he may have had something abnormal about his brain function, because he was described as being irritable and sleeping poorly." 95 He agreed that prior to the injury that precipitated unconsciousness the deceased had sustained at least two subdural haemorrhages. He said that there was evidence, on the basis of subdural haemorrhages, that they were of different ages, suggesting that they did not occur at the same time. There was no history of a loss of consciousness associated with earlier injury. He agreed that if there had been a severe neurological injury occasioning a subdural haemorrhage, one would expect that the deceased would have shown a lack of consciousness, or at least some descent of neurological functioning. That would be expected to manifest itself as sleepiness, sometimes irritability and sometimes vomiting. The factor that determines what happens is the severity of the injury that causes it. 96 The following evidence was led from the doctor: "Q. So that there is some indication of symptoms demonstrated by the baby, consistent with an earlier injury in the few days leading up to its presentation? A. On the basis of history given to me, yes.

[110]

Q. Yes? A. Yes, I think that's possible. Q. That's a reasonable possibility, is it not? It's not just speculative, given the evidence that you've seen in this case? A. I think it is possible. I don't think I have seen that, but I think it is possible." 98 He was also asked about vitamin deficiencies. He agreed that vitamin K deficiency does not predispose a baby to brain injury but if the baby's brain were injured then such a deficiency could lead to a greater than normal amount of bleeding. He thought it was "highly unlikely" in this case that all of the bone damage and haematomas seen in the deceased could have been sourced from vitamin deficiencies. Professor Howman-Giles 99 Professor Robert Howman-Giles was called in the Crown case and gave evidence based upon his specialty as a physician in nuclear medicine. He expressed the opinion that the rib fractures found on the deceased would have occurred at the same time. He said that these types of fractures in a child are usually from non-accidental injury and that it is very rare for this type of fracture in this position to occur from any other cause. He said that he had never seen rib fractures of this sort "other than from a non-accidental cause". He agreed that such fractures "could be occasioned by the child being struck abdominally by an adult hand in a fashion that lacked support for the rear". He also said the "right tibial abnormality was very abnormal on the bone scan". Moreover, bone scanning of the skull in an infant such as the deceased was unsatisfactory because the skull was predominantly made up of cartilage so that fractures in the skull in a three-month-old child are usually very poorly reactive. Working backwards from the whole body scan performed on 31 March 2006, he could not be more precise than to say that the deceased's bony injuries had been occasioned within six to eight weeks, but more than 24 to 48 hours, of that date. In relation to the rib fractures he said, "what appears to be a fracture on the x-ray and a fairly normal bone scan. . . would suggest that they are older fractures". 100 The doctor's attention was also directed to the mechanism of picking up the deceased described by the accused. He said this: "Q. It would seem even picking the baby up really quickly from a bassinet with two hands would not cause rib fractures either? A. No." Dr Norrie 101 Dr Norrie worked at the Child Protection Unit at the Westmead Children's Hospital. She provided a statement dated 1 July 2006 that was tendered in the Crown case. She is a forensic physician. Dr Norrie was present when the accused demonstrated how he had picked up the child very quickly on the morning of the child's admission to hospital. Her description of this demonstration was in general accordance with all other descriptions of it during the proceedings. She gave evidence that "even though . . . the head wasn't supported, so it did have a chance to flick back and forward once, that wouldn't be enough to cause the injuries that [the deceased] had". Nor could it in any way have accounted for the skull fracture. Dr Norrie gave her opinion of the type of activity that would be necessary to cause the type of head injuries sustained by the deceased: "Q. Are you able to say what sort of activity would be sufficient to create the head injuries? A. It's generally held that you need at least 30 seconds of - of to-and-fro movement of the head so--

[113]

Q. So if we can just understand that, the head is physically going backwards and forwards towards the chest and then towards the back and at the same time there is a rotational movement induced in the brain? A. Yes." 102 The Crown quite properly elicited from Dr Norrie that there were no signs of otherwise commonly occurring shaken baby psychosocial factors in the deceased's household such as drug or alcohol abuse, mental illness or history of domestic violence. 103 Dr Norrie said that the major injury to the deceased was within minutes to an hour of development of symptoms rather than days. In this respect she said that she was referring to the final internal head injury or bleed. That was the injury that caused the deceased to go into a cardiac arrest. She said that in a small infant of this sort there is likely to be a quite limited time span between the infliction of injury and the unconsciousness. It will ultimately depend upon the severity of the injury but if the injury is ultimately going to result in the heart and the breathing stopping, then usually the development of symptoms is quite quick. She agreed with the proposition that this was a severe case where the unconsciousness was almost immediately consequential upon the infliction of the injury. 104 Dr Norrie's report included what is accepted to have been an erroneous reference to something she was told by Ms Jubelin. The following question and answer would appear sufficiently to dispose of that issue: "Q. In expressing the opinions that you have both here and within your statement, Dr Norrie, is anything that you have said affected by whether or not Michelle Jubelin was correct in saying to you that the father had said, "No, I shook the baby"? A. No, my opinion's really based on the medical findings. 105 Dr Norrie accepted the accuracy of the expert radiological opinions expressed by Dr Wong concerning the age of the deceased's rib fractures. She agreed that it was clear that before 8.00am on 20 March 2006 the deceased had already received a number of distinct injuries and that it was impossible to date the skull fracture. She agreed that it was not possible to be any more precise about the age of the fractured skull than that it was two or three weeks old by the time the deceased came to hospital. She also agreed that the deceased had subdural haemorrhages that were at least two to three weeks old at that time. It was her opinion that these haematomas were caused by shaking. She also agreed that the injury, which led to cardiac and respiratory arrest, and which must have occurred within minutes to an hour of that injury, could not be related specifically to the subdural haemorrhages. 106 Dr Norrie also dealt with the relationship between the infliction of an injury causing brain damage and the appearance of signs or symptoms that may result. The following questions and answers should be noted: "Q. So there could well be instances where a baby has been dealt with roughly, and I use that in a non-clinical term and without any real precision, leading to the development of subdural haemorrhages, and also leading to some damage to the brain, that does not ultimately lead to cardiac arrest or respiratory failure within an hour? A. That's correct. That's correct.

[142]

Q. Either individually, or collectively? A. That's right." Dr Wilkins 117 Dr Wilkins is a senior staff specialist in paediatric intensive care at the Royal Alexandria Hospital for Children. He prepared a statement dated 29 May 2007 that was tendered in the Crown case. He was of the opinion that the deceased suffered a cardiac arrest on the day of his admission, which occurred at the time of, or shortly after ("i.e. minutes rather than hours"), a shaking injury inflicted by an adult who had picked up the deceased by grasping around the upper arms and chest and shaking him backwards and forwards several times. He was of the opinion that there was insufficient evidence of what he called "shaken-impact syndrome", where the baby is not only shaken but also thrown or banged against a firm object. For example, he said that he was "unconvinced" that the deceased had suffered a short linear fracture of the right parietal bone described by others as seen on the bone scan. He said that a cardiac arrest and consequent lack of oxygen made a major contribution to the deceased's brain injury. He concluded, "no medical or environmental or other cause other than shaking has been identified as contributing to the [deceased's] injury". 118 He first saw the deceased on 24 March 2006. He gave this evidence about his views at that time: "A. . . .In this case, the baby had already been in hospital for four days, no cause had been found as to why this baby had his cardiac arrest and, on top of that, the previous afternoon, a scan had been done of the child's brain showing a subdural haemorrhage and those two pieces of information led me to suspect that the child had suffered a traumatic injury to the brain, probably by shaking, because that is a known cause of cardiac arrest and subdural haemorrhage." 119 Dr Wilkins said that some time in the hour before the deceased presented to the emergency department, something catastrophic happened. He said that if it were more than an hour, the child would have been dead when he arrived at hospital. The injuries would have required there to have been more than "a small jiggling", a reference to one of the terms used to describe the actions of the accused. He was asked, therefore, to explain how much force would have been necessary: "Q. Can you describe for the court the sort of level of shaking that you understand is necessary to create this form of shearing injury within the brain? A. No I can't, because it is a controversial area, and there are some who say it has to be extremely violent, and there are some who think it does not have to be very violent. But the point is that babies of this age are small, they have limited ability to protect themselves because their muscles are weak, and furthermore the act of shaking is not the same as say a single whiplash injury that you might experience in a car crash. Because the shaking is repetitive, this adds to the amount of injury that can happen to the brain. Furthermore, because the bobbing backwards and forwards of the head, together with some rotation of the head on the neck, this can cause injury, both in the brain itself and in the spinal cord, which has been demonstrated in some cases in forensic pathology examination. The point is that there is shaking, and it's repetitive, but I can't tell you a degree of force, or a duration of the shaking. I do not have the expertise to answer that question.

[144]

121 Dr Wilkins expanded upon his opinions during cross-examination in the following way: "Q. Correct me if I am wrong, it does seem, though, that your report and the opinion that you express in it, and indeed the opinion you expressed in the witness box just now, about the fact that the injuries or the cardiac arrest were caused by the shaking that you have described, was on basis that the constellation of injuries co-existed in time. Is that right or wrong? A. I stand by what I have said in my report, which is that something happened that morning, irrespective of whether there were any previous injuries. It makes no difference to my understanding whether or not the subdural haemorrhages were old, or whether that occurred that morning, and it makes no difference to my opinion whether there were old rib fractures. Because having old rib fractures does not cause a cardiac arrest, having an old subdural haemorrhage does not cause a cardiac arrest. Even if you had a secondary haemorrhage, bleeding that is, into an old subdural haemorrhage, I think that would not cause a cardiac arrest if it hasn't caused massive swelling of the brain, or pressure on the brain and that was not demonstrated, and that would be supported by the neurosurgeons who did not want to operate that day, or the next day, because they did not see any evidence of swelling on the brain, or any need to evacuate the subdural haemorrhage. So although I did not have at the time evidence that the subdural haemorrhage was old, there was some controversy in the reports of the MRI scan and the CT scan about how old it was, that did not make any difference because the child had presented in cardiac arrest 4 days earlier." 122 The topic of the timing of the deceased injuries arose in the course of Dr Wilkins' evidence as well. He was asked a series of questions about this as follows: "Q. Well, what I am suggesting to you is that there is controversy also amongst colleagues of yours about whether the cardiac arrest follows within minutes or whether it's within possibly hours of the shaking, isn't there? A. I'd accept what you say.

[149]

Q. Less than an hour. I'd suggest to you it could have been up to two hours. What do you say about that? A. I can't exclude that." Dr Moran 123 Dr Moran is a consultant paediatrician working from the Royal Children's Hospital at Randwick. He provided an opinion by letter dated 20 April 2007, which was tendered in the Crown case. He expressed the view that the shearing injury to the deceased's brain would have resulted in simultaneous and instantaneous loss of consciousness. He said, "the accepted wisdom is, if you have injury to the deep part [sic] matter of the brain, you have what's known as a diffuse axonal injury, and you become instantly unconscious and you will not recover from that injury". 124 Dr Moran gave evidence about the physical mechanisms that have been postulated as the causes of such injuries to infants, in circumstances where eyewitnesses are unavailable or non-existent, and where obviously no studies have been possible. Two circumstances present themselves. These are either a severe blow to the head against a hard object where the infant's brain suddenly stops and/or a severe rotational acceleration of the brain where an impact to the brain is unnecessary. Shaking is "the postulated mechanism" in the latter case. 125 Dr Moran agreed that the sort of injury that he observed in the deceased would be more readily created by an impact than simply by shaking. His attention was drawn to the question of whether or not it could have occurred in this case without an impact, as the following questions and answers reveal: "Q. But in your view the injury to the central brain could equally have been caused simply by shaking mechanisms? A. I wouldn't say "equally", not at all equally. I think the chances of it happening by shaking alone in fact are remote because it - one rarely finds injuries such as these in babies in whom the history has been that the child was shaken. Now there's absolutely no evidence of impact. I think it would be rare to find such a degree of injury in those babies.

[150]

Q. Given that we've got a whole constellation of injuries here, what injuries that are present in this child would you exclude if there wasn't an impact in addition to shaking? A. I wouldn't exclude any of them, apart from the skull fracture of course, but supposing there was no evidence of impact here, what I would say to that is it would be rare to get such a degree of injury in shaking alone, but because one can't rely on the history in terms of making a diagnosis of shaking, I would have thought there was a good chance that there was an impact against an object that left no external evidence of injury. So, for instance, a - the soft arm of a sofa, something like that, that leaves no external evidence of impact. It may, on retraction of the scalp at post-mortem, you may see evidence of impact, but-- Q. But not in a case like this where the baby didn't die for months? A. Yes, exactly. So in a case like this where you have much more severe deep injury as a primary injury to the brain, the likelihood is that an impact has taken place." 126 It seems apparent that Dr Moran's opinion that "there's absolutely no evidence of impact" is not an agreement with Dr Wilkins' view that the suspected parietal fracture could not be confirmed, but rather a comment upon the quality and character of the evidence about what occurred in fact. He remained of the view that an impact had been involved having regard to the extent of the brain injury sustained by the deceased. However, he was adamant that nothing demonstrated by the accused in the course of his ERISP could have been responsible. He said, "No, even if it were somewhat robust handling it wouldn't cause anything like this. I mean, otherwise our hospital wards would be full of babies with severe brain injury". He excluded any action demonstrated by the accused as being a cause of the deceased's injuries. He also believed that appropriate investigations had been made to exclude all other causes of death other than the brain injury that he described. 127 Dr Moran agreed during cross-examination that it was clear that there had been at least one incident involving force to the deceased's head well before he presented to Westmead Children's Hospital on 20 March 2006. This was apparent from the subdural haemorrhages and the healing rib fractures. 128 The significance of the precise nature of the deceased's brain injury was explored in some detail with Dr Moran. (It also became apparent that Dr Donald, who was subsequently called in the defence case, placed particular emphasis on this issue in forming his own views about the timing of the injuries sustained by the deceased. This is considered below). Dr Moran gave an explanation of the relationship between the extent of injury and the degree of force that might have been involved: "Q. So presumably on a scale there must be less severe examples? A. Yes. If I could explain, on the what is known as the centripetal theory of head injury, the greatest degree of shearing occurs at the outside of the brain (indicated) for a particular force and that sort of shearing causes shearing of the bridging veins to give you a subdural haemorrhage. You can also get shearing at various levels within the brain substance. I'm not sure if this is what you're talking about, but you can get shearing between the grey and white matter, so as you get increased force you may get shearing between the grey and white matter. And the greatest degree of force or at least the force that's going to cause the greatest degree of damage to your brain, would be within the deep white matter. So, yes, there are gradations of shearing depending upon the force applied to the brain." 129 He explained that "shearing injury" and "diffuse axonal injury" were interchangeable terms. Dr Moran agreed that even though it may be accepted that there was a primary shearing injury to the deceased's brain, the extent of the injury was exacerbated because of the secondary effects of lack of oxygen or hypoxia. He said, "What I think the situation was that you're saying that hypoxia, which I think is reasonable to assume in this baby, would cause further brain swelling and, as a result of that, that there would be brain - further brain damage and I agree with that . . . But hypoxia, yes, would cause further damage and lead to further swelling". 130 Dr Moran said that the retinal haemorrhages that were present were not the most severe type of retinal haemorrhages and that they were confined to a small area. He appeared to agree with the proposition that the extent of retinal haemorrhage distribution was related directly to the degree of force that had been occasioned. He said, "depending upon the degree of force, I think the haemorrhage can be more extensive". 131 Dr Moran agreed that it was not known whether the parietal skull fracture occurred at the same time as the shearing injury. This is because it was not possible to date the skull fracture. Specifically, he agreed that it was not possible to say, "with the sort of certainty required in these forensic circumstances" that the deceased's skull was fractured on the morning of 20 March 2006. Likewise with the rib fractures. They were weeks old, so that they were clearly not associated with whatever it was that caused the deceased to have a cardiac arrest. He also agreed that the retinal haemorrhages might be attributable to earlier incidents. He said, "I think it's reasonable to say that you can't date retinal haemorrhages". 132 Dr Moran did not agree that it was impossible to date the shearing injuries. He did not agree with Dr Webster's opinion appearing in the evidence at T 70-71. His view was that "the shearing injury had to be almost instantaneously before lapsing into unconsciousness". In this context, Dr Moran was asked, and answered, the following question: "Q. Well, what I want to suggest to you is that a shearing injury of the type seen ultimately on MRI in this baby might not cause a permanent lapse into unconsciousness, but could well lead to a concussion where there is in and out, as it were, of consciousness and then a descent into unconsciousness and then ultimately, through a cascading of events, a shutdown in the respiratory system and cardiac arrest. What do you say about that proposition? A. I think that's a perfectly reasonable proposition in terms of an injury occurring and it may cause an - an injury may cause that if it's not so severe. However, the problem with applying that proposition to this baby is that we know that there was severe damage to the white matter, so what we're talking about is not concussion; we're talking about the things above concussion. So, in other words, a greater force has been applied. We have subdural haemorrhage in this baby and we have injury, demonstrable injury, to the deep white matter, which means that we've gone past concussion, we've gone up to the level of subdural haemorrhage and we've gone up to the higher level of energy input causing damage to the deep white matter." 133 Dr Moran said that it was generally accepted that if you have injury of this degree that you have instant unconsciousness. He described it as "a generally accepted clinical fact". He did not agree with Dr Norrie's opinion that "the major injury was within minutes to an hour of development of symptoms rather than days". Dr Moran said, "I'm not prepared to change my opinion just because [of what] another doctor has said". However, he did agree that a "cardiac arrest that's due to hypoxia most likely in a baby like this could occur at any time after an injury". Dr Moran did not agree with the conclusion of Dr Donald that was put to him as follows: "Based on the information available, both from You Qi's parents, the clinical reports and investigations, it is not reasonable to conclude that an episode of head injury must have occurred immediately prior to You Qi's collapse at home. The time when it might have occurred is not clear either." He did agree however, that that seemed "quite consistent with Dr Norrie's opinion". He emphasised his view that "a shearing injury in the brain means that you have a primary injury to the brain as a direct result of the force applied to the brain" and that this leads to immediate unconsciousness. 134 However, a little later in his cross-examination, Dr Moran gave the following evidence: "Q. Is there a scale of seriousness of axonal injuries where there might be some damage which immediately causes unconsciousness, but other lesser forms of injury which, although impacting on the baby's functioning, does not lead immediately to unconsciousness? A. Obviously only certain degrees of force will lead to unconsciousness. The severity point is that with varying degrees of force, as you reach a threshold, you may become unconscious, yet recover, which is known as concussion, by which I mean you were unconscious, from which you did not recover, which occurs with diffuse axonal injury. I think the important point for us is that is possible to have diffuse axonal injury, become unconscious and subsequently recover some form of consciousness and then, once again, lapse into unconsciousness. " (Emphasis added). 135 Later still Dr Moran was taken back to this topic as the following evidence reveals: "Q. So, accepting that the facts that you say a [sic] definitely facts, are indeed facts, you leave open room for reasonable professionals to differ about whether a baby can move from unconsciousness into a form of abnormal consciousness? A. Yes, I think having discussed it with the paediatric neurologist, I would say; yes, of course, there is a matter of opinion as to what level there is; that he was of the opinion that you could possibly not be completely unconscious but have a significant degree of auto-consciousness, so much so that any reasonable observer would know that there was something seriously wrong with the baby. I see no reason why I should disagree with that, yes." 136 Dr Moran agreed that there was "hot debate" about whether shaking alone can cause the sort of shearing injury sustained by the deceased. The burden of his opinion was that it is unlikely that shaking alone causes diffuse axonal injury. He explained his view in the following terms: "[I]t would be very rare, in my view, and from reading the literature and, in fact, in my experience, that a child would have this degree of injury from shaking alone. I would have thought that it was much more likely that an impact would have to occur for this degree of injury to be present". 137 In this respect Dr Moran said that "whatever caused this injury, the shearing injury was a very significant force". His cross-examination concluded on this topic as follows: "Q. About which there is controversy concerning exactly how much force is required to cause this type of diffuse axonal injury? A. I think you are asking me the question; do I know the minimum force to produce that. I don't." Dr Curtin 138 Dr Curtin is a haematologist who is employed by the Royal Alexandria Hospital for Children at Westmead. She was there in 2006. She prepared a report for these proceedings dated 28 May 2007 that was tendered in the Crown case. She gave evidence with respect to the existence and significance of vitamin deficiencies detected in the deceased. She said that the deceased did have a vitamin C deficiency, but not such as to cause the subdural haemorrhages that were evident. However she said that they certainly might have exacerbated any bleeding from other causes. Specifically Dr Curtin said this: "A. I don't though that I'm qualified to be able to say that, but certainly children with bleeding problems, if they have a trauma or whatever will have more bleeding than children who don't have a bleeding problem. Vitamin C deficiency is a cause of bleeding problems. So if the baby was deficient at presentation then you would propose that may have led to a bigger bleed in the brain than what otherwise occurred. I can't quantify that." 139 The deceased also had a vitamin D deficiency. Dr Curtin did not agree with Dr Munns' view that the deceased also had a vitamin K deficiency. She explained why she held that view: "A. Well, I think the result, the vitamin K tests, when the baby presented in the cardiac arrest that were done shortly after that were minimally abnormal. If the baby had such vitamin K deficiency at that time those coagulation tests would have been more dramatically abnormal. The coagulation tests remained abnormal after the baby had a dose of vitamin K, and they reflect a sick baby, they are not to a level that I would say contributes to bleeding, so that's a mild result. We do operations and surgery on children with those sorts of testings and they don't contribute to bleeding. So I don't think there is evidence that the baby was vitamin K deficient." Dr Donald 140 The accused called Dr Donald, a paediatric forensic physician and a senior consultant and head of Child Protection Services at the Women's and Children's Hospital in Adelaide. He prepared a report dated 16 March 2008 that was tendered in the defence case. He gave evidence by audiovisual link from Adelaide. 141 Consistently with other medical experts, Dr Donald formed the view that the deceased sustained various injuries that were apparently inflicted at different times. His significant opinion in the context of the proceedings was that it was not reasonable to conclude that an episode of head injury must have occurred immediately prior to the deceased's collapse at home. 142 He was directed to the issue of the possible mechanism that caused the shearing injury in question: "Q. . . . Are you able to explain in more detail what type of mechanism might have caused the shearing injury, or shearing damage, that you saw reported on the MRI? A. Yes. I should explain what I saw before I talk about what caused it. There was evidence of shearing injury most obvious at the junction between the white and the grey matter in the cerebral hemispheres. There was evidence of shearing injury in the band of neuronal tissue that connects the left and the right haemorrhage, the corpus callosum, and there was some evidence of injury within the occipital lobe and I can't recall which side now. All of these injuries were in the cerebral part of the brain, as opposed to the mid part of the brain, or the lowest part of the brain. So they were all lesions that were in the more superficial parts. Even though the corpus callosum is a deeper structure, it is still considered to be part of the cerebral hemisphere which it connects together, and these areas of tissue damage would occur through high angular acceleration forces, either or not accentuated by an episode of impact to the head.

[158]

It's not, in my experience, usual for impact-derived angular acceleration forces to be sufficient to cause shearing injury of the kind that the baby had. So I think there was, in addition to the impact significant flexion, extension of the head which would be adequately explained by shaking, so I think it's a combination of shaking and head impact that's caused these injuries for the reasons I've just outlined." 147 As with all other expert medical witnesses whose views on the issue were sought, Dr Donald was not able to say how much shaking was required. He agreed with Dr Moran that the retinal haemorrhages were not as extensive in the deceased as was commonly seen in babies who have received what seem to be corresponding shearing injuries. He said that raised intracranial pressure at the time of admission indicated the well-established secondary effects and/or the effects of the deceased's apparent cardiac arrest. Dr Donald expressed the opinion that that was more likely to have "reflect[ed] the secondary effects of the shearing injury that the baby suffered". He explained that he meant by that "the hypoxic ischaemic problems caused as a result of the shearing injury". 148 The doctor re-affirmed in cross-examination that he postulated or assumed a concussive episode which he described as "the actual incident of head injury, the angular acceleration forces, plus or minus the impact". He said that it was his view that such an episode "occurred some time prior to this baby's unconsciousness, floppiness and so on". He then answered the following question: "Q. Is there anything about what's known in the immediate history of this child that separates out that possibility from the possibility of instantaneous unconsciousness consequent upon assault? A. So can I ask you if what you're asking is that there is no possibility that the child had the injury before the episode of collapse? Is that what you're asking me? Because if that's the case I'd say I can't exclude that. I mean, it is possible that the child had no injury before the episode of unconsciousness and floppiness, but it kind of doesn't make a lot of sense because that's - because we know there was a significant injury there and that clinical description, it worked well, in my view, with the development of secondary effects." 149 The doctor confirmed that the "significant injury" to which he referred in that last answer was intended to be a reference to the shearing injury sustained by the deceased. 150 The Crown asked Dr Donald, in effect, to assume the history or version of events of the morning of 20 March 2006 at the Telopea premises given on several occasions by the accused, to the point where the accused described the deceased as becoming floppy in his arms and the child was presented to the hospital thereafter when undoubtedly moribund. It was put to the doctor that there was "simply no room in that history for a concussive event". The doctor gave the following answers: "A. That's presuming that it's all true. I mean, if it's all true, none of it makes sense.

[161]

Q. I said it doesn't allow for it. A. It doesn't allow me to understand anything." 151 Dr Donald agreed that the combination of forces that he accepted had been inflicted upon the deceased in whatever way it occurred was clearly dangerous to the child. He said that he thought, "that would be an observation that most people would make if they saw something like this happen". It would be something that would have caused an objective bystander to have great fear or concern for the well being of the child. He agreed with every other medical expert who expressed an opinion on it that the deceased's injuries were not explained by anything that the accused described when he said he picked up the deceased quickly from the bassinette. He agreed with the proposition that "one would clearly have to look outside the incident as related by the father and demonstrated by him to account for the injuries that ultimately caused this child's presentation to the Westmead Children's Hospital". 152 Dr Donald was also asked to express his opinion concerning the degree of seriousness of the injuries sustained by the deceased: "Q. On a scale of mild, moderate and serious, how would you describe the shearing injuries to this baby's brain? A. They're about as serious as you can get when the mid brain and lower part of the brain are not affected. Now, with the corpus callosum being included, that makes the shearing injury more severe than if only the upper part of cerebral hemispheres were involved." 153 Finally, Dr Donald clarified his view about some issues that had reoccurred regularly throughout the evidence of others: "Q. Just so it's clear to me, can you tell us your opinion, if you have one, about the relative age or timing of the angular acceleration forces that caused the shearing injury on the one hand and the event that led to that skull fracture on the other hand? A. No I can't relate it to you, your Honour. All I can say is that if there was a skull fracture there is nothing to indicate that it occurred at a different time, any more than there is to indicate that it occurred at the same time. It might have been possible to be more clear about that if the initial imaging was done immediately after the arrival of the child, because a significant number of children who have impact injuries have superficial injury to the brain under the fracture site. Now, it's quite possible that by the time the CT scan was done that if there had been minor injury, it would have vanished, so I can't relate the two.

[162]

Q. Is it your view that, or is it not, please tell us, that the angular acceleration forces that caused the shearing injury to this child could have occurred in the absence of a blunt trauma? A. I tend to - I tend to believe that the most serious injury, which this has to be considered to be an example of, is unlikely - well, "unlikely", that doesn't help much. I really, I think, subscribe to the impact angular acceleration school, rather than the pure angular acceleration school. So looking at a situation like this, I would be hunting for signs of impact because of the severity of the shearing impact forces inside this little boy's brain." Discussion 154 It is convenient to dispose of a series of matters that originally appeared likely to be significant in the proceedings but which became uncontroversial for one reason or another as the trial progressed. 155 First, although much evidence was directed to the potential importance of whether or not the deceased had suffered from a series of vitamin deficiencies, and to the question of the extent to which, if at all, these deficiencies had, or may have had, an impact upon the medical condition that caused his death, the issue ultimately became insignificant. It was conceded by the accused that the injuries causing death were of their nature so severe that the interplay between those injuries and the secondary effects flowing from minor vitamin deficiencies could be disregarded. The evidence of Dr Curtin in particular made such a concession, or a finding to that effect in the absence of such a concession, inevitable. 156 Secondly, evidence suggesting that the deceased may have suffered from a fractured tibia was inadequate to support such a finding. It was conceded by the Crown during final submissions that references to the existence or suspicion of some tibial pathology should be wholly disregarded. 157 Thirdly, the series of injuries that the deceased had suffered at times clearly removed from the insults that ultimately led to his death had no causal connection with his death. These injuries were specifically the fractures to his ribs, the suspected fracture to his humerus, and the subdural haematomas. The fracture to his parietal skull and the retinal haemorrhages could not be excluded as having occurred at the time of the events that caused the shearing injury to his brain but they could not equally be dated in a way that conclusively or persuasively aligned them with that event. However, the skull fracture and the retinal haemorrhages were not themselves life threatening even if they were capable of providing support to arguments suggesting the mechanism by which the fatal injuries were inflicted. 158 Fourthly, the version of what occurred on the morning of 20 March 2006, given by the accused, could not have resulted in the infliction of injuries to the deceased from which he died. This was the unanimous view of the medical specialists. The degree of force required to produce the shearing injury to the deceased's brain was such that not even the degree of rough or inappropriate handling to which the accused admitted, and which he demonstrated, could be implicated in the cause of any injury associated with the cause of death. 159 Fifthly, although less significantly, the fact that the deceased had been immunised on the Tuesday preceding his admission to hospital on the following Monday became wholly irrelevant to the assessment of his condition when admitted to hospital. In the events that occurred, this issue was not the subject of medical evidence and the only relevance that it achieved was as a possible explanation for the fitful sleeping patterns and indifferent feeding that was characteristic of the deceased's presentation for the period following the immunisation and up to and including the morning of 20 March 2006. Critical issues 160 The crime of murder will have been committed by the accused if the Crown establishes beyond reasonable doubt each of the following: (i) that it was the deliberate act of the accused that caused the death of the deceased;

[167]

The time when, or the time frame within which, the deceased sustained the injuries that caused his death. 162 The physical forces that caused the death of the deceased were universally described by the medical experts who gave evidence about the issue as high angular acceleration forces, probably, but not certainly or even necessarily, accentuated by an episode of impact to the head. Dr Norrie referred to an acceleration/deceleration force with rotation of the brain inside the skull. Dr Webster described the event as being consistent with a non-accidental traumatic head injury causing severe brain damage. Dr Wilkins favoured shaking alone as the probable cause as no medical or environmental or other cause apart from shaking had been identified as contributing to the injury. Dr Wilkins was not convinced that the deceased had in fact sustained a parietal fracture. Dr Moran identified two circumstances as presenting themselves being a severe blow to the head against a hard object and/or a severe rotational acceleration of the brain where an impact to the brain is unnecessary. Shaking is the postulated mechanism in the latter case. 163 No evidence was tendered, and no submissions were made, in support of the proposition that the injuries were occasioned in other than a non-accidental manner. Having regard to the opinions expressed about the mechanism of the infliction of the injuries, I am satisfied beyond reasonable doubt that they were inflicted when the deceased was either shaken and/or struck by or against some firm object such as a wall. No opinion supported even the possibility that the deceased could have fallen accidentally from a bed or a change table or otherwise sustained the injuries that were inflicted without some form of active human intervention. 164 The precise nature and extent of the injuries was ultimately not the subject of any relevant controversy. The grey and white matter of the deceased's brain suffered a shearing or tearing at the junction of their respective surfaces as the result of their dissimilar capacities to withstand the exertion of accelerating and decelerating velocities. A differential between the densities of the grey and white matters of the brain meant that they separated along the junction or border of their surfaces in response to the application of forces with which each type of brain matter coped differently. Although the damage was minor in physical terms its consequences were catastrophic in functional terms. Dr Donald described the damage as about the most serious damage that might be expected of its kind. Whatever may be the timing of the onset of unconsciousness, which is the inevitable and ultimate result of the infliction of an injury of this kind (which is discussed in detail below), the victim never recovers. I am satisfied beyond reasonable doubt that the deceased died as the result of diffuse axonal injury to his brain. 165 The third issue is more troublesome. The significance of the answer will be apparent, but the context in which the issue arises is an important aid to an understanding of it. 166 There is no doubt that the deceased had lost consciousness, had stopped breathing and had suffered a cardiac arrest by the time he was presented to Sister Dollarhide at the hospital at about 9.00am on 20 March 2006. The evidence does not reveal the precise time or times when those three things occurred. The only description of what occurred is that given by the accused in his ERISPs on 24 March and 31 March 2006. The accused said that the breathing pattern of the deceased altered and he went soft. That could be a description of one or some combination of all of those factors. The timing of that event on the accused's account places it at somewhere around 8.00am. 167 Dr Moran favoured the view that the infliction of the known injuries to the deceased's brain would have resulted in a simultaneous and instantaneous loss of consciousness. That opinion would lead, upon the accused's version, to the conclusion that the accused must have been at least in the presence of the deceased when the injuries causing brain damage were inflicted. However, no version given by the accused speaks of the infliction by anyone of force necessary to cause the injuries. The version given by the accused is therefore wrong or incomplete if the deceased lost consciousness in his arms and Dr Moran's view is correct. 168 The accused did not give evidence. No inference unfavourable to the accused can arise in those circumstances and I have notionally directed myself that it is a matter that should have no influence upon my deliberations. Moreover, it has not had any influence upon my decision. 169 The only other potential witnesses to any events in the Telopea premises on the morning of 20 March 2006 are the accused's wife, his sister and his brother-in-law. The accused's wife was not called as a witness in the Crown case. The accused expressly disavowed the availability of any adverse inference that might have been suggested by a failure of the Crown to call, or to attempt to call, her in its case. No evidence was led that directly or indirectly assisted or permitted me to characterise the absence from the witness box of the accused's wife in any way favourably or unfavourably to either the Crown or the accused. I have proceeded therefore to treat that absence as a wholly neutral circumstance. Such an approach would appear to conform to the following submission made on behalf of the accused by his counsel: "This is not a case, I hasten to add, where I submit that you can conclude that there is some Jones v Dunkel damage to the prosecution case. We just don't know exactly why she wasn't called, and I do not make the submission that there is no good reason why she was not called. She is, after all, his wife. However, this is a case where she hasn't been called, and in those circumstances that does provide you with a forensic disadvantage". 170 I have in any event also proceeded to direct myself, in respect of the election both by the Crown and by the accused not to call the accused's wife, in accordance with the statements of principle to be found in the joint judgment of Gaudron and Hayne JJ in Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 at [5] - [6] as follows: "[5] As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi . . . As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.

[168]

[6] Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses". 171 The only material that touches upon the involvement of the accused's wife in the events at the Telopea premises at any relevant time, and which can be attributed in some way to her, is to be found in the statement of Dr Norrie. She said that the deceased's mother denied the possibility of inflicted head injury. That cryptic reference did not adequately address the question of whether or not it was a statement about her own involvement or a more general denial of the infliction of injury by anyone at all. It is not a piece of evidence that is particularly helpful or instructive in any event. 172 The statement of the accused's sister does not cast any light on the events of the morning of 20 March 2006. She was only able to say that when she left for work the bedroom door where the accused and his family slept was closed. She neither saw nor heard anything. 173 The accused's brother-in-law gave a version of the events of that morning that arguably does not fit with the version given by the accused. The burden of his evidence is that when he returned at about 8.45am from taking his wife to work, the accused was trying to feed the deceased in the dining room as he sat in a chair with the deceased in his arms. The deceased looked like he was refusing to feed. On his version, he told the accused that he should take the child to hospital, but only apparently in response to having been informed by the accused that the deceased was not feeding again. The accused's wife then came downstairs. He said that they were both very worried and she was crying. The accused was upset. The accused and his wife were more upset than he had seen them in the past and particularly so in the last few minutes before they left for hospital. The accused is said to have passed the deceased to his wife and gone upstairs. This is all said to have happened in the space of a few minutes. 174 This version is inconsistent with the version given by the accused, to the extent at least that the accused makes no mention of these events. It is not inconsistent to the extent that what Hartanto said occurred could have happened after the events described by the accused. The statement is unsatisfactory to the extent that it lacks detail about the condition of the deceased. It is inconsistent with the assumption that the description of the deceased having gone soft corresponded to some condition amounting to unconsciousness or cardiac arrest; the descriptions of attempts to feed the deceased do not sit comfortably with the notion of a child in either a state of unconsciousness or cardiac arrest. An assessment of the accuracy or otherwise of Hartanto's recollections was not assisted by an opportunity to observe him as a witness in the courtroom. 175 An acceptance of Dr Moran's primary view about the timing of the critical insult to the deceased and the onset of unconsciousness, and the rejection of the accused's version that must accompany it, does not lead automatically or even persuasively to a conclusion that is necessarily unfavourable to the accused. As a matter of logically available inference, rejection of the accused's version is entirely consistent with the acceptance of Dr Moran's view if the accused's version is replaced with another explanation involving trauma and coincidental unconsciousness. The involvement of the accused in such a version is not a given. The existence of such an explanation in the circumstances of this case is a reasonably available hypothetical alternative. 176 The description given by Hartanto that the accused and his wife were upset and perhaps more upset than he had seen them in the past is presumably accurate. His statement, however, does not assist in isolating or identifying the time or the event that triggered their reaction. The accused's wife, on this version, would appear to have been already upset before she came downstairs to the dining room and the scene described by Hartanto. He did not describe a scene as she arrived that only suggested shock or alarm at what she then saw. So much leaves open the possibility that whatever event had caused the parents to be so upset had already occurred, but no insight is provided into where or when it may have occurred. Somewhat curiously, the accused is said to have passed the deceased to his wife and gone upstairs but Hartanto gives no clue to the condition of the deceased at that time. 177 The issue becomes even less clear when one considers the alternative medical opinion about the temporal relationship between a shearing injury to the brain and the onset of unconsciousness. The outer limit of this opinion is that expressed by Dr Donald who suggested that the shearing injury could have preceded the deceased lapsing into unconsciousness by as much as four hours. He also described the period as "somewhere in the vicinity of a couple to several hours". This was based upon his opinion that the loss of consciousness was the result of secondary effects such as hypoxia and ischaemia, which would have followed from the injury, rather than from an immediate shutdown coinciding with the infliction of that injury. He placed emphasis upon the fact that the deceased suffered no injury to the midbrain or brainstem, which would have been more likely to lead to immediate unconsciousness if it had occurred. His view was that it was therefore unreasonable to conclude that an episode of head injury must have occurred immediately prior to the deceased's collapse at home. 178 The significant concession made by Dr Moran is critical in this context. He accepted - indeed, he described it as the "important point" - that it was possible to have diffuse axonal injury causing unconsciousness but from which the victim could recover "some form of consciousness" before once again lapsing into unconsciousness. This description appears comfortably to fit with the observations of Hartanto who observed no violent event but observed the deceased and his wife to be significantly upset with a child who was arguably in some form of consciousness, even if not complete. The event that caused this to occur could quite easily have occurred in the period of Hartanto's absence when only the accused and his wife were present in the house. This is well within both the time period promoted by Dr Donald and the analysis conceded by Dr Moran. 179 Other medical specialists also gave opinions that would accommodate this hypothesis. Dr Norrie spoke of minutes or up to an hour. Dr Wilkins said "minutes rather than hours" and agreed that he could not exclude a period of up to two hours. During any such period the deceased was in the Telopea premises with both the accused and the deceased's mother. 180 It is of course necessary to look at all of the circumstances in a case such as the present where no single piece of evidence of itself inculpates the accused. I have had regard to the passage in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 where Dixon J said: "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed". 181 To the extent, therefore, that the Crown relies upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that can be drawn from the circumstances. It is therefore important to outline the circumstances relied upon by the Crown to infer the guilt of the accused because not only must these circumstances be capable of giving rise to the inference of guilt but must be the only inference available to be drawn. It is trite to observe that the Crown must establish the guilt of the accused beyond reasonable doubt and such a doubt will remain if any other inference is reasonably open on the evidence: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579. I take into account that intermediate facts, if any, that constitute links in the chain of reasoning towards an inference of guilt must also be found beyond reasonable doubt before the ultimate inference can be drawn. Moreover, in the case of evidence that in effect consists of strands in a cable from which guilt is sought to be inferred, as opposed to links in a chain, no fact or facts being by itself or themselves necessary to the ultimate inference or conclusion, I should not look at the evidence as to each fact or circumstance separately, but I should consider the accumulation of the evidence. I may in such a case draw an inference of guilt from a combination of facts, none of which alone may be capable of supporting that inference: Shepherd v The Queen (supra) at 580. The ultimate inference of guilt, however, must exclude any other reasonable explanation or explanations than that of guilt. 182 As the Crown quite properly emphasised, this is a circumstantial case and it is necessary to look at all of the circumstances. First, the accused was a relatively inexperienced father living in cramped and difficult circumstances, occupying a bedroom with his wife and the deceased who slept on a mattress on the floor of their room. The house they occupied was that of their in-laws and presumably that fact added to the pressures upon the accused and his wife. The deceased was a fussy child from birth and probably suffered additionally from a mild reaction to his recent vaccination that left him feeding indifferently and sleeping fitfully. The night before his admission to hospital, the deceased was awake on an hourly basis and the accused would in those circumstances have been tired and harried. 183 The accused was also under pressure to support the family. Chinese custom was said to impose a particularly onerous obligation upon young fathers for the care and support of wives and newborn babies. Documentation supporting a claim for work done for his employer in the time around the date of the deceased's admission to hospital showed that the accused had worked full days with little time for rest. His work imposed high pressures and stresses upon the accused and these were not relieved at the time leading up to the collapse of his child. There was no relevant family support for the accused and his wife in Australia and the fact that Dunyao had been sent to Singapore was said to be a recognition of the stresses that accompanied the early weeks following the birth of a new child rather than something that would have led to a significant relief of pressure upon the accused and his wife in the circumstances. The parents had, in effect, been left alone to focus on the care of the deceased themselves. 184 Secondly, the accused made statements to workers at the hospital that amounted to what the Crown described as "admissions". The Crown described these as "crucial admissions" that were made at the hospital at the time when the deceased was still being intensively cared for and when his medical condition and outcome were still unknown or doubtful. These statements included the statements to Ms Jubelin that he "may have hit him too hard" and "I don't care what punishment I get, I deserve it", and questions about responsibilities for medical costs for injuries that he may have caused. The accused also asked Ms Jubelin about whether or not he would be charged. The Crown's submission was that "we have now moved on to a situation where one of those people [i.e. the accused and his wife] is openly acknowledging mistreating the child and speaking about [his] sense of guilt in relation to the child and speaking at that point in time while the child is still critically ill in hospital and subject to intensive medical treatment that he doesn't care what punishment he gets, that he deserves it". 185 In his records of interview the accused admitted to hitting the deceased on the stomach and the buttocks and the suspected, but not proven, presence of blood in the child's stools was emphasised as an indicator of the degree of force applied. The accused agreed that such force would be unreasonable in some circumstances but insisted that what he did in fact was acceptable. The accused agreed that he had been awake all night and agreed that he could have been angry ("there's a bit of anger in there") but said that he was also anxious. He agreed that he was obviously stressed. He denied deliberately hurting the deceased. He agreed that he had become quite frustrated. It was submitted that the reference by the accused to the deceased as "a naughty boy" at the time he struck his stomach was "a very important piece of evidence about the state of this accused's mind and the stresses and pressures that he [was] under". The Crown submitted that any suggestion that the accused's statements were some form of "wondering aloud or querying" or "matters of that sort" were "a nonsense". The accused was said to be a sophisticated man whose statements should not be merely discounted as "some sort of musing". 186 Thirdly, the Crown points to the fractured skull and the prospect that the likelihood is that the fracture was occasioned at the same time as the shearing injury. Dr Moran's assessment of fifty times the amount of force flowing from an impact injury, as opposed to any other form of injury such as shaking alone, tended strongly to support a temporal connection between the two injuries. It was submitted by the Crown that the overwhelming preponderance of evidence linked the two. In this respect it should however be observed that the deceased's prior injuries, including old fractures and subdural haematomas, were not relied upon as being in any way related to the cause of death and were not suggested to be circumstantially related to any set of circumstances inculpating the accused. They were undoubtedly evidence of physical injury, probably if not certainly non-accidental, but connecting them in any way to the accused was not attempted and certainly not established. 187 Referring to these and other similar circumstances, the Crown submitted that what emerged was a clear admission from the accused to the infliction of an amount of force, that did not lead to death, which amounted to a form of behaviour by a person acting out of frustration inflicted upon a child in an extraordinarily inappropriate way. The Crown submitted that what emerged was an "extraordinarily strong circumstance pointing towards the perpetrator of the greater injuries, even if they are unadmitted". In other words, to the extent that the accused admitted to the commission of the type of acts and the degrees of force that he in fact agreed to, there was an inference in the circumstances that pointed to him as the perpetrator of the greater physical injuries that caused the death of the deceased. That was described as "the fulcrum point in the Crown case". The Crown submitted "that at all points in time it is the accused who has acknowledged his care of the child and his mistreatment of the child. . . even if not to a level that would account for the injuries" that ultimately led to his death. 188 The Crown conceded that in assessing the evidence upon which it relied that it was "quite plain" that one could "take out of the picture everybody except the mother and the father". 189 The accused's response to these matters was simple. This was said to be a case where there are considerable uncertainties about all of the necessary proofs that are required to convict the accused of either murder or manslaughter. There are uncertainties about what was the exact act that caused the injuries that led to the death of the deceased. There are uncertainties about what injuries were contemporaneous with the injuries that caused the death of the deceased. There are uncertainties about when the acts were occasioned that caused the death of the deceased and there is uncertainty about whose acts caused the death of the deceased. 190 There is little doubt that there are uncertainties about what was the exact act that caused the injuries that led to the death of the deceased. I am satisfied beyond reasonable doubt that the deceased died of a shearing injury to his brain, caused by what all medical experts who expressed an opinion upon it described as an acceleration/deceleration injury, at the site of the junction between the grey and white matter of the brain. I am also satisfied beyond reasonable doubt that the act that caused those injuries was non-accidental in the sense that it did not occur without human intervention. The deceased was too young and inactive to have caused the injury himself. Dr Donald, who was called in the case for the accused, described the "impact-derived acceleration forces" and "significant flexion [and] extension of the head" in addition to the impact that "would be adequately explained by shaking". There is in my view no scope for a reasonable doubt that the deceased's injuries were inflicted by the employment of a physical mechanism falling within such descriptions. Whilst the exact act may not be discoverable, there is to my mind no scope for a reasonable doubt about the type of act concerned. 191 There is also little doubt that there are uncertainties about what injuries were contemporaneous with the injuries that caused the death of the deceased. These uncertainties, however, are irrelevant. The Crown case is effectively limited to reliance upon the infliction of a brain shearing injury as sufficient to cause death. I have found that such an injury did cause death. The presence or absence or contemporaneity or otherwise of one or some other injury is of no consequence in circumstances where the brain injury alone was a sufficient cause. The fractured bones and subdural haematomas occurred at other times. The fact that they bespeak other violent acts or abusive treatment is undoubtedly troublesome, but does not diminish the causal potency or significance of the ultimately fatal insult. The retinal haemorrhages may have occurred as the result of the infliction of a severe rotational force or they may not. They may have occurred at the time of the infliction of the injury causing death or they may not. Once it is accepted, as I have accepted, that the act that caused the relevant fatal injury was as I have indicated, the significance of the retinal haemorrhages as evidence tending to support a particular occurrence in preference to another subsides. 192 There are uncertainties about when the acts that caused the death of the deceased were occasioned. These uncertainties flow from a combination of two competing factors. First, the medical controversy about whether or not the deceased would have or must have become instantly unconscious at the moment that he sustained the shearing injury to his brain or whether or not it would have been possible that unconsciousness may have been delayed for some period of minutes or hours following that event. Secondly, the evidentiary controversy between what the accused said he was doing when the deceased is said to have gone "soft" (presumably unconscious) in his arms and the uncontradicted medical view that nothing that the accused described doing to the deceased in the moments before that happened could have led to the shearing injury to the deceased's brain that caused him to lose consciousness. The reliability of the version given by the accused is very largely if not entirely dependent upon acceptance of the medical opinion that allows for the lapse into unconsciousness following a brain shearing injury to occur other than instantaneously or simultaneously. Nothing said by the accused or by his brother-in-law about the events leading to the deceased becoming soft involves any act by the accused that was sufficiently violent to cause the relevant injury. 193 Neither the accused's version nor Hartanto's version explains the circumstance that caused the injury. If the accused and Hartanto are accepted then the injury must have occurred earlier. Neither version describes any sufficient level of force. Earlier infliction of the injury would only have been possible if the injury and the unconsciousness that the accused appeared to describe occurred at different times. If this were not medically possible, then the accused's version would have to be rejected. However, rejection of the accused's version for this or any other reason is not necessarily inconsistent with innocence. The infliction of the relevant brain injury at an earlier time does not in those circumstances point only in the direction of the accused. 194 In the final analysis the medical controversy turned out to be less controversial than would appear to have been anticipated. Dr Donald was of the view that at least two hours could have separated the infliction of the shearing injury and a state of unconsciousness from which the deceased did not recover. Dr Moran ultimately agreed with that proposition. Dr Wilkins was unable to exclude two hours. Dr Norrie would appear to have accepted as much as one hour as possible. Any of these periods was long enough to account for Hartanto's absence from the house with his wife when only the accused and his wife were present with the deceased. The deceased could well have sustained the relevant injury at any time during the two-hour period before the accused and his wife decided to take the child to hospital. There is in my opinion no medical controversy that adversely affects this analysis. 195 It was finally submitted on behalf of the accused that uncertainty remains about whose act or acts caused the injury that led to the death of the deceased. Howsoever one views the circumstantial material that can be factored into this inquiry, there is no one circumstance or combination of circumstances that points only in the direction of the accused. There are only two possible sources of the injury to the deceased. There is no evidence that points persuasively at the accused as opposed to the accused's wife. For example, the existence of evidence that the injuries to the deceased were of a type, or had been delivered with such force, that could only have been caused by a male, would suggest, according to the common course of human affairs, that the occurrence of such a proved fact would be so highly likely to be accompanied by the occurrence of the fact to be proved, that anything other than the guilt of the accused could not reasonably be supposed. No evidence of this type exists. 196 Nor are the factors upon which the Crown relies of this type. The accused's wife was under the same physical and emotional pressures as the accused. She was also presumably without sleep as the result of the deceased himself not sleeping through the night and feeding irregularly. She was subject to the same poverty of family support as the accused. She was also caring for the deceased and had access to him in much the same way as the accused. No evidence of anything attributed to her amounts to an unambiguous denial of involvement in the cause of the deceased's injuries. No so-called admission by the accused of rough handling of the deceased is capable of explaining the cause of the injuries or of proving who did cause them. Prior injuries to the accused are in the same category. No aggregation of proved circumstances, considered in sequence or in combination, is capable of excluding at least one other equally available alternative hypothesis. The precise submission made on behalf of the accused in this respect was that as "there [were] at least two possible suspects for the perpetrator of the act or acts which caused death, the accused and his wife, [I] could not be satisfied beyond reasonable doubt of the guilt of the accused". 197 This includes the so-called admissions made by the accused at the hospital. The accused admitted to certain behaviour that he would not usually have engaged in, including picking the deceased up very quickly from his bassinette without supporting his head. He also spoke of hitting the child on his stomach and buttocks. At the point where the accused was revealing these things and referring to his arrest and punishment, the deceased was in a grave medical condition and his prognosis was either uncertain or very poor. No information permitting the accused or his wife accurately to comprehend the extent of the child's injuries and prognosis had been provided. Indeed, some insight into this is available from that part of the accused's ERISP on 24 March 2006 when it is revealed to the accused for the first time that the deceased had a fractured skull. The transcript of that event is reproduced above at par [28]. It shows in my opinion a genuine surprise and alarm on the part of the accused. 198 In this context I consider that the circumstantial force of the so-called admissions is small. The reactions of the accused and his statements of what could be characterised as some form of remorse are explicable by alternative hypotheses entirely consistent with innocence. It is not difficult to imagine that there may have been another reason, or other reasons, why the accused would make statements appearing to draw attention to himself that were not in fact statements amounting to an admission of guilt. I agree with the Crown submission that the circumstances reveal a "clear indication of a form of behaviour which is acting out of frustration on a child in an extraordinarily inappropriate way", but precisely whose behaviour is by no means sufficiently revealed. 199 It follows that I am not satisfied beyond reasonable doubt that the accused is the person who inflicted the injuries to the deceased that ultimately led to his death. 200 Counsel for each of the parties made submissions with respect to the mental element of the offence of murder and the alternative verdict of manslaughter. The Crown's submission included the following: "The accused stands charged of murder. I cannot take your Honour to any intent to murder demonstrated, other than by the scale of the actual injury itself. There are no admissions of intent that I have been able to find in the material placed before your Honour, although there are admissions, as previously discussed, of anger. So in relation to the combination of admissions of anger and the inherent intended consequence of the mistreatment of this child, it seems to me that that perhaps remains open for consideration on the head of recklessness in relation to indifference to human life, but there is a clear and strong case on manslaughter." However, by reason of the conclusion that I have reached with respect to the infliction of the injuries that caused the death of the deceased, it is unnecessary to consider these matters. 201 Jeong Ming Foo on the charge that on 31 August 2006 at Dundas in the State of New South Wales you did murder You Qi Foo I find you not guilty. I direct that my verdict be entered.

R v Jeong Ming FOO

At a glance

Court

Decision date

Before

Source

Judgment (169 paragraphs)

Parties

Cases Cited (6)