R v Lee [2001] ACTSC 133

R v Lee [2001] ACTSC 133 - ACTSC 2001 case summary — Zoe

[60]

Charlie Paige Billerwell (Charlie) was born on 7 July 1999 at Calvary Hospital, Canberra.

Her mother is Kellie-Lee Billerwell and her biological father is Lee Steele. Charlie is Kellie-Lee Billerwell's third child.

Kellie-Lee Billerwell's pregnancy with Charlie was unremarkable until she was admitted to hospital on 10 June 1999 at about 33 weeks amenorrhoea with false labour. She was discharged after having had contractions for approximately 10 hours.

Kellie-Lee Billerwell presented to Calvary Hospital on 6 July 1999 with ruptured membranes. She was about 37.5 weeks amenorrhoea.

The labour lasted 8 hours and the membranes had been ruptured for 21 hours. A quick delivery did occur, with the second stage only lasting 3 minutes.

The apgar scores for both one minute and five minutes were 9.

3 minutes after her delivery Charlie turned slightly blue and oxygen was administered. She responded immediately and returned to her normal pink.

Charlie did have some facial contusion, which appeared as a swelling with a slight blueish tinge. As a consequence she was placed in a humidicrib in the special care unit but no problems eventuated.

Charlie was discharged from Calvary Hospital on 9 July 2001 [sic- 1999] with her mother.

. . .

Charlie Billerwell was admitted to Calvary Hospital at 11.10 am on Tuesday 27 July 1999. She was asleep when left in the care of the accused at approximately 8.50 am on 27 July 1999.

Kellie-Lee Billerwell took Charlie to visit with her proposed family based child care worker, Thirisa McDougall, at approximately 10.30 am on 26 July 1999. Thirisa McDougall, who had been a child care worker for 17 and a half years, noted that Charlie was attentive and lively. She thought that the baby appeared to be behaving in a normal manner.

On Monday 26 July 1999 at about 12.30 pm Kellie-Lee Billerwell took Charlie to visit a former work colleague, Suzanne Harrington. Suzanne Harrington nursed Charlie and noted that she had "a bloodshot eye" but seemed content.

Charlie was more unsettled than usual in the afternoon and evening with a lot of crying, particularly after her bath.

Kellie-Lee Billerwell's friend, Karen O'Brien, visited the family premises at 121 Sommerville Crescent Florey on the evening of 26 July arriving at 6.30 pm. She did not observe any injuries on Charlie.

She woke about three times in the night but did not sleep from about 1.30 until 6.30 which was unusual. At the 6.30 feed she vomited a small amount.

At approximately 8.50 am on 27 July 1999 Kellie-Lee Billerwell left Charlie with the accused to drive her daughters to school. She returned home after dropping the two girls at school, collected some paperwork and drove to Woden to attend an appointment with her accountant leaving Charlie again in the accused's care.

Marguerite Stewart, an accountant with the Income Tax Professionals recalls that Kellie-Lee Billerwell attended for an appointment at approximately 9.30 am on 27 July 1999 and left between 10.10 am and 10.15 am.

She returned about 10.30 am and found Julie Nelson and the accused with Charlie and observed that Charlie was floppy and pale.

[61]

It is clear that the accused had rung Ms Julie Nelson, Ms Billerwell's aunt, at about 10 am. He told her that something was wrong with Charlie and that she looked as if she were dead. He explained that he had just got out of the shower with Charlie and that she was not breathing. Ms Nelson asked him why Charlie had been in the shower with him and he said that she had been crying and he hadn't wanted to leave her alone. He explained that one of the community nurses had said that it would be alright for him to do so. The fact that a nurse had given him such advice was subsequently confirmed by evidence from Ms Billerwell.
Ms Nelson asked him if he was sure that Charlie had not swallowed any water and, despite his tentative assurance to the contrary, suggested that he "put her on his knee and slope her downhill a little to drain her, and try and tap her . . . for a little while to see if that would shift any . . . obstructive secretions or water that she may have inhaled." The conversation lasted for about twenty minutes. Ms Nelson was obviously unable to recall everything that was said but did recall that the accused sounded concerned. The sequence of events is not entirely clear. It appears that she heard him tapping Charlie at least from time to time throughout the conversation. At some stage she heard the baby make "a little whimpering sound" and the accused told her that Charlie was not breathing properly. The accused also told Ms Nelson that he had to keep patting her or she did not move.
The accused ultimately told Ms Nelson that Charlie didn't seem to be improving and she went to his home. She arrived about 10.30 am, just before Ms Billerwell returned home, and found the accused standing at the end of the driveway holding Charlie in his arms. She said that Charlie was warmly dressed and that he had been holding her with great tenderness. He said "I think she's better". Ms Nelson, who is a nurse, examined Charlie with a stethoscope and told the accused to take her to hospital.
The statement of agreed facts also included the following statements:

[62]

Charlie was taken to Calvary Hospital by the accused and Kellie-Lee Billerwell, arriving at approximately 11.00 am on 27 July 1999.

They approached Monica Robinson who was rostered on the triage desk in the Emergency Ward. The accused told Monica Robinson that the baby had stopped breathing properly.

Mary Beveridge, who was also on duty at Calvary Hospital Accident and Emergency Department overheard the conversation with Monica Robinson at the Triage Desk attended to Charlie. She directed Kellie-Lee Billerwell to place Charlie in the Infant Warmer Crib.

Dr Margaret Keaney is a qualified medical practitioner and as at 27 July 1999 had worked in the Australian Capital Territory for 25 years. At that time she had been a medical practitioner for 37 years and was employed as the Director of Emergency at Calvary Hospital.

Dr Margaret Keaney examined Charlie on her admission and found her pale and having breathing difficulties including very shallow breathing. Dr Keaney said that her heart rate was slow at 100 beats per minute and her body temperature was 33 degrees celcius [sic].

The baby experienced life threatening episodes during the examination and treatment by Dr Margaret Keaney.

Calvary Hospital staff conducted several tests including x-rays and the removal of blood for testing.

Mary Beveridge noticed that the baby had a darkened area on each buttock that she at first believed to be Mongolian spots. The marks were oval in shape and diffuse in nature across the buttocks.

Marie Cummins, a pastoral care worker at Calvary Hospital, comforted Kellie-Lee Billerwell and the accused. She noted that Kellie-Lee Billerwell was upset however the accused was "very distraught, he was crying and shaking. I would say he was in a state of shock".

Once Charlie's condition stabilised she was transported to Canberra Hospital in a humidicrib. Her temperature was 34 degrees celcuis [sic] and her heartrate had improved.

Dr James Keaney accompanied Charlie to Canberra Hospital. Dr James Keaney had at the time been a qualified medical practitioner for 35 years having performed duties mainly in the intensive care field including the area of paediatrics.

[68]

The Crown produced extensive medical evidence in support of the contention that these injuries had been caused by a deliberate act or acts of shaking. Mr Collaery objected to much of this evidence on the ground that the opinions in question were not based upon any established body of specialised knowledge or, alternatively, were not based upon matters falling within the expertise of the relevant witnesses. The Crown objected to some opinion evidence elicited in cross-examination on similar grounds. The issues raised by these objections are referred to later in these reasons for judgment. Subject to those objections, I have taken into account the whole of the evidence adduced by the Crown but for present purposes it may be sufficient for me to make limited references to the more significant statements of opinion.
Dr Packer expressed the opinion that Charlie had sustained an "inflicted" brain injury involving sub-dural haemorrhage, damage to the parenchyma or substance of the brain and marked bilateral retinal haemorrhages.
Dr Morris, who had treated Charlie upon her admission, said that in view of the intractable seizures, the limited information he had concerning the results of the CT scan, the buttock bruising and the fall in the haemoglobin level between admission and the following day, he had formed a provisional conclusion that the seizures had been due to brain haemorrhage caused by trauma. He said that he was also suspicious about retinal haemorrhages and "thought that the trauma could have been due to shaking of the baby".
Dr Ryan said that the results of the CT scan were the "classic findings in a child with inflicted head trauma" caused by violent shaking or possibly a severe blow to the side of the head. He said that in circumstances of a blow to the head one commonly finds bruising to the side of the face. The scans had "the features of an acute sub-dural haematoma between the two hemispheres of the brain and damage to the brain substance itself in several areas, which may have criteria [sic] in what is seen in an infant who has been violently shaken". He ventured the opinion that Charlie had been "held tightly around the chest and . . . vigorously shaken backwards and forwards for a significant period of time".
Dr Jones said that the sub-dural bleeding could have been caused by a violent movement of the brain against and away from the falx. He said that such a movement could have been caused by an impact injury or shaking impact injury, and that that, and other injuries to the brain, indicated severe trauma. In the absence of any history of a severe automobile accident he believed that it had been a non-accidental injury and suggested that impact injury, severe repetitive shaking or a combination of both was in his opinion "the likely scenario". He said that retinal haemorrhages were "overwhelmingly" found in non-accidental injuries in comparison with motor vehicle accidents. He conceded that there were other possible explanations for some of the injuries to Charlie's brain, but did not think that there were other alternatives to trauma as a cause of this "constellation of symptoms and signs".
Dr Donald said that the only mechanism that he would consider as a possible explanation for the injuries in Charlie's brain was an acceleration/deceleration injury. When asked what might have caused such an injury he said "there's nothing in the history that explains it, therefore I would presume that it was some assault, most likely shaking, but I've got nothing - no history of that; that's speculation on my part. But that is what, without an explanation, would otherwise account for it; it would be most likely to produce these changes in a baby of her age".
Dr Dickson, an ophthalmologist, referred to an article by Professor Levan in which the opinion was apparently expressed that haemorrhages that are seen in shaken babies are not the result of mild trauma. He said that he had thought about what Professor Levan would have made of the retinal haemorrhages and said that his feeling was that he would have looked at the baby's eyes and concluded that he was very suspicious that the child was shaken, but would not have concluded from the retinal haemorrhages alone that he could have affirmatively stated that it was a case of shaken baby syndrome. However, he thought that if the Professor had been informed that the child also had sub-dural haemorrhages the Professor would have had no doubt in his mind that the child had been shaken, and that the only question to be answered was who had done so.
Dr Steinberg, an expert paediatric radiologist who had reviewed the CT and MRI scans gave evidence that the primary brain injury was the direct result of an initial traumatic force which included damage to the blood vessels and shearing injuries to the white matter fibres of the brain. He said that shearing injuries were most commonly seen in rapid acceleration/deceleration injuries. He explained that the images available on CT and MRI scans can give a very accurate idea of how a radiologist believed the injury had been caused. He said the injury could have been caused by vigorous motion of the head to and fro suddenly coming to a stop against either a hard or soft object, but that the clinical history was also very important. When asked about the significance of there being no external injury he said that that was "classical of the shaken baby or shearing type of injury" and that what often happens is that "the head is vigorously shaken from side to side and then thrust against a soft object . . . and comes abruptly to a stop". He said that in his opinion, and those of his senior colleagues, it was "not the sort of injury that would occur from patting, hugging or that form of interaction with a baby or child".
There was other evidence to like effect.

[121]

Charlie Paige Billerwell is the third daughter of Kellie-Lee Billerwell. The two other children are Jamie-Lee Billerwell who was born on 13 December 1991 and Kayla Billerwell who was born on 11 October 1993. The father of these girls is Taren Savage, with whom Kellie-Lee Billerwell resided for 6 years.

12 months after her separation from Taren Savage, Kellie-Lee Billerwell moved to Queensland with her two daughters and met an old school friend, Lee Steele and commenced a relationship with him. They had an "on again off again" type of relationship over a period of 18 months and in October 1998 they decided to separate. They had sexual intercourse on a number of occasions, including Lee Steele's birthday on 16 October 1998.

Kellie-Lee Billerwell met the accused in October 1998, approximately two weeks after her final separation from Lee Steele.

Kellie-Lee Billerwell states that Lee Steele is the natural father of Charlie.

The accused and Kellie-Lee Billerwell began a serious relationship when it became clear that Lee Steele and Kellie-Lee Billerwell could not reconcile their relationship. The accused commenced a de-facto relationship in March 1999.

Lee Steele, born on 16 October 1974 is the son of Lorraine Sandra Woods. He has a sister, Aleisha Micheal Steele who was born on 27 April 1985.

Dr Henry Berenson treated Lee Steele and his grandmother for many years.

When Lee Steele was 13 years old investigations were carried out to determine a cause of headaches and dizziness that he was suffering from. A skull x-ray indicated a lytic lesion and this was investigated and a diagnosis of a vascular abnormality was made. Lee Steele is now 27 years of age and has received no treatment for this abnormality.

Lee Steele's maternal grandmother has a venous angiolipoma in her cervical spine and a vascular malformation in the right temple.

Aleisha Steele was born at 37 weeks gestation and did have mild respiratory distress at birth. When she was slow to walk, her treating specialist, Dr Anthony Crawford arranged for her to have a CT Scan of her brain and her upper cervical spine when she was 14 months old. Those scans were carried out on 2 June 1986. There were no contrast CT scans and MRI scans performed on Aleisha Steele.

Contrast enhanced CT scans and MRI scans performed on Charlie in July 1999 and May 2001 demonstrate no abnormal vascularity to suggest a vascular malformation.

[166]

HIS HONOUR: Could I just ask two things about that. I suppose firstly one has the problem with someone who may be in a state of panic, and the question of whether the mechanism was entirely and accurately described. Is there room for some sort of intermediate situation in which the actions may have been more vigorous than reported but not amounting to a completely different scenario? Your Honour I can't get away from the need to generate a high acceleration/deceleration force. And I can't - that's why I'm troubled by this, because I can't think of a mechanism that would do that without what normally happens or what we know happens sometimes when we presume happens others, which is insertion of the chest and stuff like that, I mean I don't want to give the impression that I don't believe that carers of young babies who panic and shake them in that way don't cause injuries sometimes, I think they do. I don't think they cause the extent of injury we saw in this case because of the difference between the sub-dural haematoma and actual brain injury. So I do think people panic and do that. But I can't for the life of me work out a mechanism that could result in this situation.

...

But there are all sorts of differing physiological capabilities and resiliencies and so forth. Does that play any part in the causation of these things? - Yes, you have to - in the genesis of the sub-dural haematoma it's critical to ensure that there is no evidence of increased susceptibility. Now there are various conditions, some permanent, some transient that can increase a child's susceptibility. And probably one of the most important ones is the distance between the inner surface of the skull and the surface of the brain, which is sometimes widened and which therefore already put veins that we have talked about bleeding under slightly higher pressure and that's a very difficult diagnostic dilemma. Because the force in those situations is significantly less. Similarly it's critical to establish that the baby has no disturbance in its clotting because particularly with very young infants there can be a transient clotting disturbance, particularly if they haven't been given vitamin K or they've been given oral vitamin K at birth . . .

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