R v Matthey [2007] VSC 398

Supreme Court of Victoria|2007-10-12|Before: COLDREY J

CRIMINAL LAW AND PROCEDURE - Murder (four counts) - Scope of evidence of medical experts addressed - Issues of reliability, relevance, and prejudicial effect of evidence of accused's relationship to husband and children considered.

1 The accused, Carol Matthey, has been presented for trial for the murder of four of her children, Jacob, Chloe, Joshua and Shania. In each instance the Crown allege that death was the result of deliberate suffocation. In general terms, expert medical evidence is sought to be adduced that the post-mortem findings are consistent with suffocation.

2 Additionally, the Crown seek to advance evidence of a circumstantial nature, much of it addressed to the accused's relationship with her partner Stephen Matthey, and children. This material, so it is submitted, demonstrates acts by the accused (including the murders) which were motivated by desire on her part to sustain her relationship with her partner. The children, for whom it is alleged she had little regard, were pawns in this strategy. At all times Mrs Matthey has denied harming her children.

3 Issues of the admissibility of portions of the prosecution evidence have arisen.[1] In order to place the questions which must be addressed in context, it is necessary to set out a substantial amount (but not all) of the evidentiary material.

4 The deaths of the four children spanned a period of four years and four months. The first, that of Jacob, occurred on 8 December 1998. He was the second of the Matthey children, having been born on 3 May of that year. The oldest child, Dylan, was born on 27 May 1997. Prior to Jacob Matthey's death, he experienced what is termed an ALTE (being an acronym for apparent or acute life threatening episode) on 28 October 1998. On that occasion, the accused, Carol Matthey, called 000 at about 9.45 a.m. She told the ambulance officers Mandic and Clarke, who attended at the family home, of finding the child lying listless in his cot initially being purple with increased respiratory effort and decreased respiratory rate. (These were not the mother's words, but ambulance officer Mandic's interpretation of them.) The ambulance officers observed Jacob to have flaccid limbs and he was cyanosed peripherally and was labouring for breath. The latter symptom manifested itself in a wheeze and grunting noises when he breathed out. Since the child was conscious, had a pulse, and was breathing, it was not necessary to perform cardio pulmonary resuscitation. There are some discrepancies in the evidence of the paramedics as to the circumstances at the home scene, but these are not relevant for present purposes.

5 Jacob was transported to the Geelong Hospital where he remained until 30 October. Medical tests were inconclusive as to the cause of this episode. It is unnecessary to go into all the medical details save to note that Associate Professor of Paediatrics at Geelong Hospital, Peter Hewson, expressed the view that such matters as raised white cell blood count and enlarged spleen and liver, which were detected on the child, were likely to have been the result of infection rather than an asphyxial episode.

6 Dr Ian Hopkins, a child neurologist, from whom Dr Hewson sought an opinion, expressed the view that Jacob had experienced an acute encephalopathic process. Whilst it was probably caused by an undetected infection, it could possibly have been the result of an acute asphyxial episode.

7 The material indicates that Jacob was the subject of considerable medical scrutiny after his initial discharge from hospital. Dr Carl Grace, a general practitioner, reviewed him on 1 and 2 November and, although Jacob was crying continuously, no abnormality was detected. Jacob had been re-admitted to the hospital on the latter date and remained there until 7 November. Thereafter, the baby was referred to a paediatrician, Dr Anthony Dinning, who examined him on 9 November. Dr Dinning noted that the child was irritable and grizzly and would not settle. He also felt that the baby was not seeing him. He noted that the child failed to smile and didn't fix on his face and follow. Additionally, Dr Dinning discerned a minor degree of hepatosplenomegaly (being enlargement of the liver and spleen).[2]

8 The statement of Dr Grace indicates that Jacob was re-admitted to hospital for further tests and, later still, was assessed by Dr Hewson and Hopkins together on 20 November. At that time Dr Hopkins regarded Jacob as neurologically normal and Dr Hewson felt that the child's initial presentation was encephalopathic presumably due to a metabolic abnormality. Investigations of such possible abnormality were continuing at 8 December 1998 when Jacob died.

9 On that day, at about 11.15 a.m., Mrs Matthey contacted the Rural Ambulance Service stating that she had found Jacob lying in his cot and not breathing. Apparently Mrs Matthey also sought the assistance of a neighbour who was a nurse. Attending paramedic Ian Russell, found Jacob on a couch in the loungeroom pale and unresponsive and with vomit around the mouth. Resuscitation techniques failed to restore any signs of life.

10 On 10 December Dr Peter Campbell, a paediatric pathologist, performed a post-mortem on Jacob. He listed significant findings as:

Aspirations of gastric contents into lungs.
1. Plagiocephaly.[3]
Otitis media.[4]

11 Dr Campbell gave the cause of death as Sudden Infant Death Syndrome (SIDS).

12 For completeness I should add that there was a single 1 cm. bruise to the left of the midline of the para-occipital region detected only when the scalp was reflected. It is not suggested that it has any significance in the cause of death.

13 Dr Susan Beal, a consultant paediatrician called by the Crown at the committal proceedings, defined SIDS as follows:

The death of an infant under 12 months of age who, at the time of death, seemed to be well or whose terminal illness was so mild that no real concerns were held about it, and who at autopsy has nothing to indicate a cause of death and has had a death scene investigation which has been thorough and complete.

Dr Campbell, in his committal evidence, ventured the view that some pathologists may have given the cause of death as bronchiolitis. Dr Campbell stated that, if he had known of Jacob's ALTE about six weeks prior to his death, it may have qualified his diagnosis as SIDS (708). Ultimately, however, he felt the diagnosis was reasonable given the presence of significant inflammation and he would not have regarded that history as precluding his diagnosis of SIDS (709).

14 The second of Mrs Matthey's children to die was Chloe, who was born on 4 September 2000. Earlier, on 18 November 1999, her elder sister Shania had been born.

15 On 14 November 2000, Dr Carl Grace conducted an eight week post natal check on mother and child. Both were found to be normal. The evidentiary material indicates that on 26 November at a birthday party at a friend's house, Chloe appeared to be unsettled and Mrs Matthey stressed. After consultation with a chemist Chloe was given a measured dose of Panadol which appeared to settle her a little. Ultimately, the child's father Stephen arrived and settled Chloe down.

16 On the following day (27 November) at approximately 3.25 p.m., Mrs Matthey contacted the Rural Ambulance Service and stated that she had found Chloe in her cot, not breathing. This was apparently after having put her down for an afternoon sleep at about 2.30 p.m. After calling the ambulance she called her husband Stephen and commenced CPR on the baby. She had been instructed in this technique following Jacob's death.

17 MICA paramedic Bernard Malone treated Chloe on the floor in the master bedroom. Paramedics Craig Crawford and Peter Jackson also attended. Chloe was not breathing and had no pulse. Various resuscitation techniques were employed to no avail. One of the paramedics, Jackson, made some observations of Mrs Matthey (to which I will return later).

18 On 28 November, Dr Peter Campbell performed a post-mortem on Chloe. Dr Campbell listed the following anatomical findings:

Pulmonary congestion and oedema.
Tracheobronchitis.
Aspiration of gastric contents into lungs.
Bilateral Otitis media (haemophilus influenzae isolated)[5] Biotype II.

Under the heading Cause of Death, Dr Campbell recorded:

Findings consistent with the Sudden Infant Death Syndrome.

This child appears to have died of the Sudden Infant Death Syndrome (SIDS). This is a diagnosis made after a full post-mortem examination including X-rays, microbiology, toxicology and metabolic study fails to explain death. The child was the second infant to die in this family in which the cause of death has been given as SIDS ... While a second child in the family can die of SIDS by chance the occurrence raises a possibility of an inherited or genetic condition as a possible cause as well as the spectre of non-accidental injury.

In Chloe's case there is no evidence of the latter and metabolic study (on Jacob as well as Chloe) has been non-contributory in particular medium chain acyl co-a dehydrogenase deficiency (MCAD), has been excluded. Other metabolic conditions as yet unknown may still be the cause of these children's deaths but we have no way of diagnosing these at present. However, skin has been stored so that at a future date further metabolic tests will be able to be performed.

19 At the time of her death, Chloe was just over 10 weeks old.

20 Joshua Matthey was born on 30 March 2002, some six weeks premature, by caesarean section. He remained in hospital for two weeks suffering initially from neo-natal respiratory distress syndrome. Because of the two prior deaths an apnoea monitor was provided to Mrs Matthey.

21 At three weeks of age Joshua was examined by paediatrician Dr Kym Anderson who found him to be thriving. However, Joshua developed pyloric stenosis, manifested by projectile vomiting. Consequently, he was transferred to the Royal Children's Hospital (RCH) for corrective surgery. Whilst the operation was successful, Joshua experienced a cardiac arrest several hours after surgery. This required re-intubation and ventilation for the ensuing five days. No concluded cause was assigned to this episode which occurred in the Intensive Care Unit (ICU), but the treating physician, Dr Peter McDougall, who was the Director of the Department of Neonatology at the RCH, expressed the opinion that the respiratory arrest was secondary to the administration to the baby of intravenous morphine. The Crown rightly conceded that there is no evidence that Mrs Matthey (although present from time to time in the ICU) had anything to do with this incident.

22 Next in the sequence of events, Dr Anderson saw Joshua on 25 May 2002, when he was 8 weeks old. He was feeding and developing well. Further, there had been no genuine apnoea alarms. The only abnormality observed was a mild paleness for which future tests were arranged. A later blood test on the day of Joshua's death (10 July 2002) indicated mild anaemia.

23 On the day before his death, Mrs Matthey took Joshua to see Dr Cindy-Lou Nelson at the Kunatjarra Medical Clinic, North Geelong. Dr Nelson records him as having a purulent discharge from the left [sic] ear following an upper respiratory tract infection. She diagnosed Otitis media with a subsequent perforated tympanic membrane.[6] Dr Nelson commenced Joshua on Amoxycillin, a penicillin based antibiotic.

24 On 10 July 2002, Mrs Matthey drove the family station wagon containing Dylan, Shania and Joshua to go shopping at Safeway supermarket, Corio Village. (They had previously been playing in a local park.) At the shopping centre Joshua was placed in a pram. His sister Shania was apparently in a baby seat which was attached to the front of the pram. Mrs Matthey indicated later that Joshua cried en route through the car park to the supermarket; however, he settled when Shania gave him his dummy. He was not wearing his apnoea monitor at the time.

25 The shopping excursion occupied about 15 minutes. On returning to the motor vehicle Mrs Matthey placed her older children inside it before attempting to remove Joshua from the pram. When she lifted him he was limp and was not breathing. Prior to this he had not given any appearance of illness or distress. Mrs Matthey called an ambulance at approximately 5.10 p.m.; she also called her husband Stephen. She commenced CPR in the rear area of the station wagon until the Norlane Ambulance paramedics, Peter Jefferson and Jennifer Teal, arrived. They found baby Joshua unconscious, pulseless and non-breathing. He was apparently warm in the trunk region with cool extremities and was cyanosed around the mouth and fingertips. Subsequently, MICA paramedics, Messrs Blick and Collins, took over the resuscitative efforts of their colleagues. However, there was no improvement in Joshua's condition.

26 On 12 July 2002, a post-mortem was conducted on Joshua Matthey by Dr Michael Burke. He noted mild inflammatory changes within the lungs which, on microscopic examination, showed evidence of low-grade infection. He also observed purulent material within the right ear.

27 An ear swab, when cultured, grew Klebsiella pneumoniae.[7] A microbiological culture taken at Geelong Hospital Emergency Department showed blood cultures positive for Klebsiella pneumonia. Both strains are resistant to Amoxycillin.

28 Dr Burke gave the cause of death as Klebsiella septicaemia.

29 Joshua Matthey was aged 3 months and 11 days at the time of death.

30 For completeness I should add that, in the course of the committal proceedings, Dr Burke indicated that the fact of the death of Joshua occurring in a car park would have been part of his thought processes. This was because of its unusual nature. The literature and experience of pathologists was to the effect that non-accidental injuries tended to occur behind closed doors in people's homes.

31 In any event, Dr Burke assigned a cause of death and he stated that, if he had not, he would have put the cause of death as unascertained.

32 The final death in the sequence was that of Shania Matthey. Shania was born on 18 November 1999. Her medical records, provided by Doctors Cindy-Lou Nelson and Carl Grace, reveal a catalogue of essentially normal childhood ailments. These included reflux (December 1999); colic (January 2000); upper respiratory tract infection (April, May, August 2000); and gastroenteritis (September 2000). There were also episodes of wheezing and vomiting (December 2000 and February 2001).

33 According to Dr Nelson, she was contacted by phone by Mrs Matthey on 9 July 2001. Mrs Matthey reported two episodes of apnoea lasting 30 seconds and associated with cyanosis. Dr Nelson advised Mrs Matthey to take Shania to the Accident and Emergency Department of the Geelong Hospital for assessment. Dr Nelson had finally seen Shania on 3 September 2002 when her mother described her as being more "clingy" and as crying more frequently over the past three weeks and since the death of Joshua (10 July 2002). Otherwise, Dr Nelson's examination revealed a 22 month old child with no abnormalities.

34 On 28 February 2003, Shania was enrolled at the "One World for Children" day care centre by Mrs Matthey. At the time she did not describe any medical problems associated with her daughter. Shania attended the centre three days per week (Monday, Wednesday and Friday). On 8 April 2003 at 10.30 a.m. Mrs Matthey initiated a telephone conversation with Lisa Ratcliffe, the accountant at the day care centre about fees. The witness describes a screaming child in the background and Mrs Matthey continuing the discussions unfazed. The Crown assert the child to be Shania.

35 Later the same day, an incident occurred which the Crown advance as an ALTE. At 1.07 p.m., Mrs Matthey contacted the Rural Ambulance Service stating that Shania had fallen from a coffee table while riding on a toy horse. The call was taken by Ms Lyn Purcell. A recording of that call has Mrs Matthey asserting that, after screaming, Shania had stopped breathing and had been unconscious for about one minute. She could not tell if Shania had a pulse and described her as being a bit purple. Ms Purcell opines that during this portion of the conversation, she could hear the child crying, snuffling or gurgling in the background. When queried about this, Mrs Matthey stated that it was background noise from the television. The source of the noise is a contentious issue in the trial.

36 Towards the end of the call Shania is said (and heard) to be crying and coughing.

37 Paramedics Laurie Blick and Warren Cato attended the scene arriving at 1.19 p.m. At that stage Mrs Matthey was nursing her daughter. Shania was conscious and became agitated at the paramedics' presence. This made an examination impossible but the paramedics satisfied themselves that the child was uninjured and that intervention was unnecessary.

38 In the course of giving a history to the paramedics, Mrs Matthey described her daughter falling off the coffee table on to her side. She had begun screaming and then held her breath, a common occurrence when she was distressed. On this occasion, when shaking had not alleviated the situation (as it usually did) Mrs Matthey had panicked and contacted the ambulance service.

39 Discussion occurred as to any future course of action and it was decided that Mrs Matthey would take the child to her own doctor. This did not occur although contact was apparently made with the Kunatjarra Clinic were an appointment was unsuccessfully sought. (There was a dispute as to whether specific details of the earlier incident was revealed by Mrs Matthey to the receptionist.)

40 The material indicates mixed observations by witnesses as to Shania's demeanour during the balance of that afternoon, but certainly by the evening she appeared to be quite well.

41 Statements from both Stephen and Carol Matthey indicate that Shania was put to bed at about 8.00 p.m. At about 1.15 a.m. (on 9 April), when Stephen was going to work, he checked on Shania who was sleeping soundly. He picked up her milk bottle, which had fallen on to the floor, and she took it and placed it in her mouth.

42 In essence, Carol Matthey stated that Shania called out for more milk at about 2.15 a.m. and this was provided for her. (Although I note that in one of the three interviews (using that term loosely) conducted with Mrs Matthey, she referred to Shania sleeping throughout the night.)

43 In any event, Mrs Matthey stated that she had her usual 6.00 a.m. shower and that when Shania failed to join her, as was her habit, she went to the bedroom. Put in general terms, Mrs Matthey found Shania in bed. She was not breathing and was blue around her mouth. She was still warm. Mrs Matthey described ringing the ambulance and attempting CPR.

44 The paramedics who attended were Benjamin Fisk and Sharon Smith of the Norlane crew and later, MICA paramedics Martin Butson and John Wormald. On examination Shania Matthey was not breathing and had no carotid pulse. She was pale and warm to the touch. Various methods of resuscitation were unsuccessfully attempted.

45 Dr Bruce Bartley was the Emergency physician who attended Shania on her arrival at the Geelong Hospital. He described the cause of death as unclear but stated there was no evidence of non-accidental injury on external examination.

46 On 9 April a post-mortem was conducted by Dr David Ranson. Dr Ranson, a highly respected and experienced pathologist, made the following comments:

The autopsy revealed no evidence of recent trauma to the body of a type that might be expected to have contributed directly or indirectly to the death.
The macroscopic autopsy revealed no evidence of significant natural disease of a type that might be expected to have contributed directly or indirectly to the death.
The only abnormal findings on external examination of the body were a small number of petechial haemorrhages over the surface of the heart and lungs and a moderate number of petechial haemorrhages present on the sinus.

47 For completeness I should indicate some of Dr Ranson's findings in more detail. These relate to eyes and eyelids, nose, lips and mouth and stomach. The doctor found that the eyes and eyelids were unremarkable. The conjunctivae[8] appeared normal. No sub-conjunctival haemorrhage was seen and no petechial haemorrhages were present over the conjunctivae. No anterior hyphaemia was seen.[9]

48 The nose appeared unremarkable. The nostrils ... contained some bloodstained fluid.

49 The lips appeared unremarkable, apart from a drying artefact over the inner aspect of the mid portion of the upper lip. No damage was noted to the upper or lower frenulum.

50 The mouth was free from foreign material or food but contained a small amount of bloodstained fluid.

51 In his report, Dr Ranson also recorded that the stomach showed no evidence of ulceration of its mucosa. It contained a small quantity of slightly bloodstained mucoid material in which no solid food material or drug residues were seen. No milky material was present macroscopically.

52 On 10 April, Dr Anthony Hill, Dr Richard Bassed and Professor John Clement, each Honorary Forensic Odontologists with the Victorian Institute of Forensic Medicine, conducted an examination of Shania Matthey. No evidence of trauma to the head and neck region could be found. All oral structures including the teeth, frenal attachments, gingival and tongue were intact and showed no evidence of trauma.

53 Dr Ranson gave the cause of death as "unascertained".

54 At the time of her death Shania Matthey was aged 3 years and 5 months.

55 In a later statement (11/3/05) Dr Ranson recorded that further post-autopsy investigations had not revealed information which enabled him to draw the inference that the death of Jacob, Chloe and Shania Matthey occurred as the result of a recognised and identifiable natural disease.[10] Nonetheless, this did not mean that a natural disease process had been excluded as a direct or indirect mechanism to explain the deaths. Nor did a review of the pathological material permit the inference that any of the four children had died "as the direct or indirect consequence of the deliberate or inadvertent infliction of an injury or dangerous act by a third party". Indeed, Dr Ranson made clear that an examination of the autopsy records provided no evidence of significant or recent prior injuries that suggest any form of direct physical abuse and there was no anatomical evidence of significant accidental injury.

56 Dr Ranson does not appear to have been questioned at the committal proceedings as to his awareness of the ALTE involving Shania on the day before her death and, if so, whether it would affect his conclusion. Certainly, given the tenor of his reports and evidence, it appears it would not have done so.

57 The Crown have sought to challenge the conclusions of the actual pathologists through the agency of medical practitioners obtained interstate and, in one case, overseas. There is no doubt that the Crown is entitled to adopt this course, but it is important that the opinions of these expert witnesses do not stray beyond their areas of expertise or rely upon matters extraneous to such expertise.

58 In this regard the admissibility of portions of the evidence of several of these witnesses is challenged by the defence. In assessing the defence submissions it is helpful firstly, to briefly set out the opinions expressed by such experts.

59 Dr Susan Beal, a consultant paediatrician (but not a pathologist), examined the findings from each of the autopsies.[11] She opined that the anatomical findings in the case of Jacob Matthey were often seen in infant deaths from all causes. It was Dr Beal's view that the attribution of SIDS required not only a full clinical history, but also a thorough death scene investigation. The latter was absent in Jacob's case. Nonetheless, Dr Beal expressed the view that SIDS was the most likely diagnosis. However, she also stated that the previous ALTE involving Jacob, increased the possibility of non-accidental injury.

60 In relation to Chloe Matthey, whilst calling the cause of death SIDS, it was Dr Beal's view that the finding of the child in the supine position raised "the possibility of filicide as an alternative diagnosis".

61 Insofar as Joshua Matthey was concerned, Dr Beal did not regard the terminal event as clinically consistent with either SIDS or the infection from Klebsiella or accident. She gave the cause of death as "undetermined" but went on to advance filicide as "the most likely (but unproven) diagnosis". In this regard the witness was prepared to call in aid, in the case of Joshua Matthey, the episode at the RCH which she described as an ALTE despite there being no evidence that Mrs Matthey had anything to do with it.[12]

62 Finally, in dealing with the death of Shania Matthey, Dr Beal briefly canvassed the clinical history. She described the mother's claim of prior breath holding as "a faint possibility".

63 Dr Beal did not purport to interpret the episode which occurred the day before Shania's death. Noting that Shania was too old for SIDS and there was no indication that infection or accident played any role in the death, Dr Beal gave the cause of death as undetermined "with the comment that unexplained death is extremely rare in children and the possibility of murder should be considered". Indeed, Dr Beal concluded her report by expressing the belief that "all the evidence points to all the children having been killed by non-accidental suffocation".

64 During cross-examination at the committal proceedings, Dr Beal advanced the view that an ALTE always raised suspicion as to non-accidental suffocation of every child who died of SIDS despite there being no evidence of physical harm. Consequently, this applied to Jacob. It was unclear whether the doctor had previously been aware of the enlarged liver and spleen detected in Jacob, or the raised white blood cell count but, in any event, she appeared to dismiss them as irrelevant. Ultimately, Dr Beal affirmed her view of SIDS being the most likely diagnosis.

65 In relation to Chloe, the witness said that, had she been found prone, she would have given SIDS as the cause of death without any qualification.

66 In relation to Joshua's episode in the RCH, the witness agreed that it could have been associated with an accidentally administered morphine overdose. She maintained her view that it was highly unlikely that Joshua would die from Klebsiella septicaemia although there remained that possibility.

67 Turning to Shania, Dr Beal was confronted with a statement from a Geraldine Taylor which included the following:

I have seen Shania on a couple of occasions whilst playing deliberately hold her breath. Carol would go over and clap her hands and talk to her and she would be fine afterwards. I have never seen her lose consciousness after holding her breath.

Dr Beal queried whether this was a breath holding spell if there was not a loss of consciousness.

68 The doctor indicated that she had compiled her report without any knowledge of the evidence of odontologists Doctors Anthony Hill and Richard Bassed and Professor John Clement who had found no teeth marks on Shania's lips. Apparently, however, this did not affect her conclusion.

69 Dr Beal's reasoning appeared to be as follows. Whilst Shania's death had to be called undetermined, having ruled out to her satisfaction accident, infection or unrecognised congenital malformation, she was prepared to find non-accidental suffocation.[13] Having done so, Dr Beal reasoned backwards to a probability that the other three children died by non-accidental suffocation.[14]

70 The Crown also relies upon the opinions expressed by Dr Alan Cala, a forensic pathologist, who reviewed each of the post-mortem findings.[15]

71 In the course of considering the post-mortem of Jacob Matthey, the ALTE of 30 October was examined. It is described by Dr Cala as unexplained.

72 Although referring to the elevated white cell count discovered following that event, Dr Cala makes no mention in his report of Jacob's enlarged liver and spleen and, accordingly, no mention of the possible significance of this finding. Nor does he refer to the possible causes of the ALTE suggested by Doctors Hewson and Hopkins to which I have previously referred. It was because of the ALTE that Dr Cala regards the cause of death of Jacob as unexplained rather than SIDS.

73 In respect of Chloe Matthey, Dr Cala disputes the finding of SIDS made by Dr Campbell. His reasoning, as revealed in his report, appears to draw on circumstances beyond the death of Chloe. In particular, he comments:

I do not agree with Dr Campbell when he says "there is no evidence for the latter" [non-accidental injury]. Perhaps he has formed this view based on the autopsies findings alone, without consideration given to the circumstances surrounding the death, in particular Jacob's death and unexplained ALTE.

I would be extremely cautious in diagnosing SIDS for the second time in relation to the sudden and unexpected death of an infant whose sibling has also apparently died of SIDS, when combined with a previous unexplained ALTE.

As a consequence of this reasoning, he proffers "undetermined" as the cause of death.

75 In relation to Joshua Matthey, it appears that Dr Cala accepts the view that the respiratory arrest and bradycardia[16] which occurred in the RCH was due to the respiratory depressant effects of intravenous morphine. However, he, like Dr Beal, implies, despite a total lack of evidence, that Mrs Matthey may have had a part to play in this event.

76 I have already made clear my view as to that matter and I note that on the face of his report, Dr Cala places no weight on the episode.

77 Referring to Dr Burke's post-mortem results, Dr Cala records:

I have examined the histological slides taken from autopsy material. Some slides of the lungs show numerous iron-laden macrophages, indicative of previous episodes of bleeding into the lungs.[17] There are many causes for this, such as previous coughing episodes, and infective lung conditions such as pneumonia, bronchitis, and bronchiolitis. The finding of old bleeding in the lungs is non-specific and I place no weight on it.

78 Dr Cala, however, disagrees with Dr Burke's assigned cause of death as Klebsiella septicaemia. In particular, he disputes the conclusion that this infection could cause the sudden death of a child who did not, on the day of death, display the clinical features of any significant illness of concern to the treating doctor.[18] Dr Cala remarks:

I am sceptical therefore of the significance of the finding of Klebsiella bacteria grown from the ear swab and blood. These results may indicate this bacterial organism was present in the bloodstream of Joshua Matthey, as a "bacteraemia" only. That is, the organism was present in blood but did not cause significant disease. That situation is quite different from "septicaemia", which is a much more significant medical condition. In septicaemia, there is severe bacterial infection in the bloodstream associated with clinical features which indicate a severely toxic state, such as high fever, shock (low blood pressure), rapid or thready pulse, laboured breathing, vomiting etc. These features of toxicity do not appear to have been present at the time of Joshua's death. I concede he may have had a bacteraemia, but am not convinced that he had a septicaemia as the cause for his death.

Dr Cala would have given the cause of death as "undetermined".

79 In relation to Shania Matthey, the doctor appears to discount the prior apnoeic episodes, substantially on the basis that they had not been independently corroborated from a reliable source. It is not clear to me whether he was aware of the statement of Geraldine Taylor to which I have earlier referred.

80 In any event the report sets out the events of 8 and 9 April 2003. In relation to the latter event, reference is made to the paramedic who described bloodstained fluid in Shania's mouth at the time of intubation. I have been unable to locate any such material. The paramedics did observe pink frothy fluid in the endotracheal tube used in the resuscitation efforts and recorded Shania's body as being warm to touch.

81 Dr Cala had access to the histological slides, as well as a collection of post-mortem photographs. On the basis of the photographs he purported to observe frank (that is pure liquid) blood on the outer side of the right nostril and a blood clot within it. He claimed to have observed dried blood on the lips and around the mouth, as well as a slight abrasion around both nostrils and the skin in between. What Dr Ranson described as a drying artefact on the upper lip, Dr Cala asserted as a red/brown area of abrasion/bruising.

82 Additionally, the doctor discerned two abrasions or superficial lacerations on the inner (mucosal) surface of the upper lip and three recent teeth marks on the upper lip.

83 On the basis of the photographs, Dr Cala felt able to assert that Dr Ranson had failed to describe the injuries to the nose and mouth area in his autopsy report.

84 Dismissing the injuries that he purported to observe as being resuscitation-related, and relying on his finding of frank blood in the mouth, airways and stomach of Shania, Dr Cala opined that the original source of blood may have been the abrasion or laceration of Shania's upper lip by her teeth. Accordingly, he gives the cause of death as "smothering".

Despite the very detailed and thorough autopsies, combined with comprehensive further testing, it is my opinion that no single cause of death has so far been identified that adequately explains any of the deaths. No evidence exists that any Matthey child suffered from any cardiac, known metabolic or inherited disease that would provide a satisfactory explanation for any of the deaths. I cannot say with absolute certainty that it is impossible that some as yet undiagnosed metabolic or inherited condition caused the deaths of these children, however I believe there does not exist such a condition. I believe however that that particular possibility remains so highly unlikely as to be virtually impossible, given the investigations that have been performed to date.

86 At the committal proceedings, Dr Cala agreed that photographs may be limited as to dimension, angle, and colour reproduction. He indicated that he was unaware of any examinations conducted on Shania by three expert odontologists.

87 Although not in his report, Dr Cala disagreed with Dr Campbell's autopsy finding of acute tracheobronchitis and bronchiolitis in relation to Jacob. However, he agreed that the difference was one of degree between the pathologists as to the question of acuteness and significance.

88 Insofar as Chloe was concerned, Dr Cala disagreed with Dr Campbell's finding of tracheobronchitis, albeit there was some inflammation observable. Again, Dr Cala seemed to be saying it was a matter of degree.[19]

89 He agreed that all genetic and metabolic diseases had not been documented, and to this end Dr Campbell had acted responsibly in freezing a portion of the child's skin for future examination if necessary.

90 In the course of cross-examination, this exchange occurred:

Q: And that's, as I understand it, simply because of the earlier death?

A: The first death I could not ignore. The first death was unexplained. This is unexplained, and I wouldn't have called this one SIDS.

Q: But again you understand how Dr Campbell could, as a reputable, reliable pathologist, call it a Sudden Infant Death Syndrome?

A: Well, I can see how he might call it that, but I've got my reasons why, as I've explained, why I wouldn't have done that.

A: Why it wouldn't be called Sudden Infant Death Syndrome?

91 As for Joshua, Dr Cala had no explanation other than the effects of intravenous morphine for the post-operative events at the RCH. Nor did he dispute that Klebsiella was cultured from Joshua's ear and blood; rather, whilst accepting the presence of bacteria in the blood, he did not accept that it had developed to septicaemia. He agreed this was essentially a matter of opinion and theoretically Dr Burke may be correct.[20]

92 Dr Cala was asked about calling the cause of death undetermined.

Q: Again, suspicious because of the previous deaths?

A: Yes, and I knew that the child had a blood test that was essentially negative on the morning of the death and I knew that the activities, as best I was aware of, that afternoon and it didn't accord with septicaemia.

93 In terms of Shania, the disagreement with aspects of Dr Ranson's findings was based on viewing photographs.[21] On the basis of the photographic depiction, Dr Cala maintained the presence of frank blood on the outer side of the right nostril and the existence of the facial injury. He discounted Dr Ranson's observations of the drying artefact, and indeed those of the three odontologists.

94 Further, in the course of cross-examination, Dr Cala was confronted with the fact that the paramedics who attended the scene of Shania's death, observed no frank blood but rather pink, frothy fluid and that Dr Ranson did not record frank blood in the deceased's stomach. The doctor conceded that in relation to those aspects of his report, he was in error.

95 Dr Cala was further confronted with the fact that the odontologists (and indeed two dentists, Drs Barbara Lerpiniere and Nils Broders) did not observe the three teeth marks on the upper lip. Dr Cala was prepared to "entertain" the idea that he may be wrong, conceding that the photographs were an imperfect medium. He went on to add:

... and there's some problems with the photographs as well, there's a little bit of inadequacy of exposure of the upper lip and the lower lip in the photographs, so not only am I not looking at the child in situ, I am looking at photographs which are not altogether satisfactory.

Q: If you are wrong about the so-called injuries that you have opined from the photographs, it must follow that your conclusion can't stand as to the cause of death?

Q: Yes because there would be no basis for coming to that conclusion?

Q: And if that be the case, you would call the death from all you have read, undetermined?

97 The doctor nonetheless maintained in re-examination that there was no identifiable natural cause of death in relation to each child[22] and that the death of each was consistent with smothering.

98 The Crown also rely upon the evidence of Dr Janice Ophoven, whose clinical practice was in paediatric forensic pathology. Dr Ophoven commenced her report[23] with a general summary of the Matthey family history, not all of which is relevant to her task of assessing the causes of death. Putting that to one side, Dr Ophoven proceeded to examine the circumstances surrounding the deaths, and the autopsy findings, in relation to each child.

99 In relation to Jacob Matthey, the findings (pared of irrelevancies) which Dr Ophoven regarded as important were the unexplained ALTE, the sudden and unexpected death, the presence of blood in the nose at death and the presence of pulmonary haemorrhages. To this, Dr Ophoven appeared to add the absence of any of the risk factors commonly recognised in the epidemiology of SIDS. On this basis, Dr Ophoven advanced the opinion that the death was not due to SIDS and was consistent with suffocation.

100 When cross-examined generally, Dr Ophoven appeared to agree with the proposition that as many as 15% of deaths of children less than one year but over one month old are unexpected and unexplained.[24] She also appeared to give the same figure for child deaths over one year. Dr Ophoven also agreed that medical knowledge was improving and that there was ongoing research into genetics and metabolic disorders.

101 In the case of Jacob, she disagreed with Dr Campbell about the level of inflammatory crisis in the airways and dismissed the view that the enlarged spleen and liver, discerned upon admission to hospital on 30 October, was caused by infection. However, Dr Ophoven attributed the rise in white blood cells to an asphyxial episode, rather than infection.

102 In her view, all the doctors at the Geelong Hospital missed the acute asphyxial episode which was the genesis of the encephalopathy. In relation to the commonly recognised risk factors in the epidemiology of SIDS, Dr Ophoven disavowed a number of those listed in her report,[25] indicating that since it had been written, such factors have been refined to pre-natal smoking, with perhaps second-hand smoke (which I assume to be the same as passive smoking) and the child sleeping in the prone position. Dr Ophoven also sought to place Jacob, at seven months, outside the SIDS age group, but subsequently she stated that eight months was the big cut-off point. However, she added "if you're older than six months, you would not be a classical SIDS".

103 Dr Ophoven also claimed that the deceased had blood from an injury to his nose "at the time of his death from suffocation". By "blood" Dr Ophoven meant the "mucoid faintly bloodstained exudate escaping from Jacob's nostrils" described by Dr Campbell. Although it could come from the lungs, it was the doctor's opinion that it had not done so because Dr Campbell had not listed any bloodstained fluid in the trachea or bronchia. Whilst it was common in SIDS babies to be found with pulmonary oedema and a bloodstained discharge from mouth or nose (as in the present case), Dr Ophoven maintained that fluid had not come through the trachea and bronchia.

104 In the course of cross-examination, she was referred to the writings of Professor Patrick Carolan, the Medical Director of the Minnesota Sudden Infant Death Centre, and an expert in the field, who stated that some of the physical signs often accompanying a SIDS death included a frothy, blood-tinged discharge from the nose or mouth at the time of discovery. Dr Ophoven appeared to concede the correctness of this proposition but reiterated that "purge" was a recognised extension of pulmonary oedema.

105 In relation to Chloe Matthey, an important finding relied upon by Dr Ophoven was the presence of pulmonary [parenchymal] haemorrhages at autopsy. Further reliance was placed upon the asserted absence of risk factors recognised in the epidemiology of SIDS. However, these were not the only factors Dr Ophoven took into account. The others may be listed as the fact that Chloe was in the care of her mother before she died; that there was an unexplained and unexpected death in more than one sibling; and that the previous death had occurred in the presence of the same person (Mrs Matthey).

106 Despite listing these facts, which were said to lead to the conclusion of "homicidal suffocation", Dr Ophoven gave the cause of death as being yet undetermined. In cross-examination the witness agreed that the petechiae in the thymus and lungs, the pulmonary congestion and oedema, and the age range of the child, were all consistent (or to be seen) in deaths labelled SIDS.[26]

107 As for Dr Campbell's finding of tracheobronchitis, Dr Ophoven did not agree that there was evidence in the microscopic slides of infection in the airway. She said that the amount of inflammation/inflammatory cells in the airways was within a reasonable range and hence she would not call this tracheobronchitis. Nonetheless, Dr Ophoven agreed that there was a degree of subjectivity in these findings and she would not criticise Dr Campbell's histological conclusions. Indeed, he had called the condition as consistent with SIDS and Dr Ophoven agreed that a degree of tracheobronchitis is often found in infants whose death is attributed to SIDS.

108 Dr Ophoven agreed that three of the autopsy findings namely the petechiae in the thymus and lungs, the pulmonary congestion and oedema and a degree of tracheobronchitis were frequently found in infants who die of SIDS.[27] Quizzed as to the medical facts which precluded the finding of SIDS, Dr Ophoven stated that the lack of numbers of petechial haemorrhages on the thymus gland and the lungs made this atypical or borderline SIDS. Indeed, even that description was one she would no longer employ, preferring to call the death "unexpected and unexplained".

Q: What is it of that medical criteria that prevents this being called a SIDS death?

A: It is a case where not only are there more than one sudden and unexpected death in the children, but that it is consistent with homicide in another of the siblings which makes the diagnosis of SIDS improper.[28]

110 Specific cross-examination was addressed to Dr Ophoven's views on the significance of pulmonary haemorrhage in Chloe. She was referred to a paper by a Dr Hanzlicks in which it was stated that pulmonary haemorrhage was a phenomenon in two thirds of infant deaths. The doctor's response was that whilst pulmonary haemorrhage was not an infrequent finding in SIDS, it is also a frequent finding in homicidal suffocation. She went on to describe the pulmonary haemorrhage of Chloe as significant and sufficient to suggest the possibility of foul play.[29] Dr Ophoven disagreed with the observation of Professor Stephen Cordner, namely "I see no significant pulmonary haemorrhage, there is congestion and patchy pulmonary oedema". Dr Ophoven agreed that there were no macrophages or siderophages[30] in the lungs. This indicated that there had been no previous bleeding into the lungs.

111 Dr Ophoven gave the medical cause of Chloe Matthey's death as "undetermined". In rejecting SIDS as an appropriate finding, she stated:

It is because this is a case of obvious homicidal violence against one child and the death of this child is unexplained and it is consistent with suffocation, that does not allow any reasonable pathologist when looking at the whole of the case to consider this a SIDS.

112 Dr Ophoven, in a report on the death of Joshua Matthey, indicated that he exhibited some of the known risk factors for SIDS, namely, being male, born prematurely and being within the two to four month age range. SIDS was not, of course, the cause of death assigned by Dr Burke, which was Klebsiella septicaemia. This was a conclusion which Dr Ophoven regarded as inconsistent with the clinical history of Joshua. She regarded as significant in reaching a conclusion of death consistent with suffocation the fact that Joshua exhibited a pulmonary haemorrhage and was "well" at the time of his death.

113 However, apart from these clinical factors, the doctor relied upon a number of other factors. They may be listed as follows. First, that Joshua was reliant on the care of his mother at the time of his death. Secondly, that Joshua was coincidentally off the apnoea monitor. Thirdly, that there had been the unexplained and unexpected death of one or more siblings. Fourthly, these deaths had occurred in the care of the same person (Mrs Matthey) and, finally, what was said to be "suspicious circumstances surrounding his death in the parking lot".

114 In the case of Shania Matthey, the clinical features which appear to have impressed Dr Ophoven were evidence of brain swelling; swallowed blood in Shania's stomach at autopsy (in fact Dr Ranson found "a small quantity of slightly bloodstained mucoid material"); evidence of pulmonary haemorrhage; the unexplained ALTE the day before Shania's death; and the presence of bloody fluid in Shania's nose and mouth at autopsy. Additionally, there was the absence of the risk factors commonly recognised in the epidemiology of SIDS.

115 The non-medical factors to which Dr Ophoven had regard were, in effect, the same as were listed in relation to Joshua.

116 In the event, Dr Ophoven gave the cause of death as homicidal suffocation.

117 At a later time, extra material, including photographs of Shania Matthey, was forwarded to Dr Ophoven. She expressed the view that the photographs of Shania's mouth, as well as the autopsy findings, were consistent with bleeding from injury to the mouth and nose. In her opinion, "this bleeding resulted in swallowed and aspirated blood from pressure to the nose and mouth during homicidal suffocation".

118 It is not clear whether Dr Ophoven was in receipt of any material from the odontologists.

119 In the course of this investigation, in August 2004 Professor Stephen Cordner was requested by the Director of Public Prosecutions to provide advice about the four deaths. He did so in a report dated 28 January 2005. Dr Cordner holds the post of Professor of Forensic Medicine at Monash University, and Director of the Victorian Institute of Forensic Medicine. By any standards Professor Cordner is a world class authority in his field. Having examined the post-mortem reports, Professor Cordner found that each of the findings were perfectly compatible with natural causes of death[31] and indicated that there was no point of major disagreement between him and the three pathologists involved.

120 Professor Cordner advanced the general proposition that the pathologist performing the post-mortem was in a position of advantage and had an obligation to record findings in such a way as to enable another pathologist at another time to come to their own conclusion.[32]

121 As part of his task, Professor Cordner was asked to peruse the report from Dr Ophoven. At the outset he expressed the view that her homicide hypothesis was "flawed in its assumptions, reasoning and conclusions". In his introductory remarks, Professor Cordner made the following point:

Certainly, as forensic pathologists, we often evaluate autopsy findings in the light of supposed circumstances, or we try to recreate circumstances de novo from the autopsy findings. The core difficulty in this matter was the absence - on my view - or the paucity of autopsy findings allowing some type of recreation of the circumstances. In addition, forensic pathologists do not get into a consideration of circumstances of a psycho-social kind (e.g.: the fact "that one or more of the children might have been the result of an unwanted pregnancy") or that might indicate potential suspicion (that Ms Matthey was the last person to see the children alive) where those circumstances are unrelated to the autopsy findings or medical history. I believe that we are not necessarily equipped or trained to do that, and public prosecutors in courts are. In addition, they are probably not matters of expertise, and if that is so, pathologists are no better able to evaluate them than anyone else.

122 In this category, Professor Cordner placed material about the fire in Dylan Matthey's bedroom on 12 August 1998 (to which I will refer later in this ruling); and the repeated references to Mrs Matthey being alone with the deceased child.

123 Professor Cordner adverted to the emphasis placed by Dr Ophoven upon the presence of blood in the nose or mouth of the deceased children and points out that, in the autopsy reports, it is in fact described as bloodstained exudates or fluid, not blood. In any event, blood tinged exudates or fluid in the mouth or nose is a common marker of pulmonary oedema, which Professor Cordner described as a relatively non-specific accompaniment to many deaths from different causes.

124 Professor Cordner referred specifically to the case of Shania Matthey where it was pinkish froth, not frank blood, that was observed by the ambulance officers intubating her. Professor Cordner also drew attention to the absence of any reference by Dr Ophoven that the blood staining of the exudates or fluid could have arisen in the course of resuscitation where mucosal damage which may escape the detection of the pathologist may be caused. He expressed the opinion;

Such damage can cause bleeding which may be mixed with the white or pinkish fluid of pulmonary oedema to produce a darker colour. Of course, in Shania's case, such blood could also find its way down to the stomach. This would be a sufficient basis in my view to discount any significance attaching to the presence of blood in the stomach.

125 Professor Cordner noted the weight placed by Dr Ophoven on the pulmonary haemorrhage present in the cases of Jacob, Joshua and Shania. He stated that in the minds of many pathologists this is a marker of pulmonary congestion which, itself, is a very non-specific finding common in deaths from many causes. Professor Cordner cited literature on the subject. In essence, the texts supported this contention, with one author, a Professor Berry, who was a Professor of Paediatric Pathology, opining: "Pulmonary haemorrhage ... is neither a necessary nor specific marker of deliberate or accidental suffocation" (see generally pp.11-12 of Professor Cordner's Report).

126 Moreover, insofar as Dr Ophoven regarded the event on the day before Shania Matthey's death as a possible asphyxial assault, Professor Cordner noted that no injuries referable to such an assault were seen at autopsy, nor was there any sign of a pulmonary haemorrhage that might have been 24 hours old.

In summary, I am not aware of any objective evidence-based material that supports the view that the existence of pulmonary haemorrhage in three of the four deaths of the children in the Matthey family adds any weight to the homicide hypothesis.

128 It was also Professor Cordner's view that Dr Ophoven over-emphasised the absence of the risk factors commonly recognised in the epidemiology of SIDS. In addition, he pointed out features consistent with such epidemiology. These included the age band of Jacob, Chloe and also Joshua (albeit his death was not ascribed to SIDS).

129 Jacob in particular had features at autopsy quite compatible with SIDS; namely the presence of thymic petechial haemorrhages, some upper airways inflammation and otitis media as well as no discernable cause of death.

130 Professor Cordner also considered matters such as time of death and the demographic of social disadvantage. Additionally, he noted the absence of facial petechiae which, whilst rarely seen in cases of child suffocation, were nonetheless not present.

131 In Shania's case, the probability of their presence was greater. A similar comment was made in relation to the absence of conjunctival petechiae. Further, there was no bruising of the inside of the lips and frenulum or around the mouth or nose. This represented a significant negative finding, particularly in the case of Shania who, at three years and five months, had teeth.

132 Professor Cordner also queried the absence of any mention by Dr Ophoven of pulmonary siderophages, being the cells containing iron, which is one of the breakdown products of haemoglobin. Professor Cordner stated that studies had indicated that unexplained pulmonary siderophages can be a marker of trauma or repeated hypoxia/asphyxia and that they can remain in the lungs for a number of weeks (see report pp.16-17).

133 Tests indicated a significant increase in siderophages in the cases of Jacob and Joshua. In relation to Jacob, the event of 28 October 1998, involving respiratory distress, six weeks before his death, could have resulted in a degree of pulmonary haemorrhage and hence the increased number of siderophages found on autopsy. Moreover, since there are many events that can cause increased siderophages (including imposed suffocation), it is of no independent additional value in a particular case in arriving at a conclusion.

134 In Joshua's case,[33] Professor Cordner pointed to the respiratory arrest at the RCH consequent upon a morphine administration which resulted in 60 hours of ventilation and which occurred two months before his death. Professor Cordner ventured the view that this event in itself raised "questions about Joshua's sensitivity to circumstances tending to suppress respiration such as might occur in SIDS".

... the diagnosis of SIDS is a diagnosis of exclusion. If a condition is found at autopsy capable of causing death which accords with the circumstances, it is elevated to the cause of death. There is a limit to what can reasonably be done to exclude other causes of death. For example, there are dozens of minor genetic mutations causing potentially fatal cardiac arrhythmias (e.g. long QT syndrome). There can be mitochondrial DNA deletions or other mutations causing sub-microscopic abnormalities to heart muscles. The emotional weight of the case ("it is easy to smother babies") outweighs the fact that the same pattern could occur in older children or young adults and the conclusion we would all come to would be an inherited arrhythmic disorder.

136 Professor Cordner deals specifically with the concluding remarks of Dr Ophoven in her report. Given the importance of the medical evidence in this case, it is, in my view, instructive to quote these remarks in full:

"Determination of manner or circumstances of death is a diagnosis that requires a reasonable evaluation of the facts at hand and application of known forensic principles." (Dr Ophoven)

One of the principles which governs my approach was published in The Lancet, S. Cordner. Deciding the cause of death after necropsy 341: 1458-60; June 5, 1993:

"The more difficult the causal issues, the more the cause of death as given by the pathologist should become descriptive rather than prescriptive. This fits well with one of the jobs of a pathologist which is not to decide those issues that may be a matter for the law - it is for the law to connect acts or omissions by one party to the death of another - but to put the law in the best position to make its decision."

In an as yet unpublished paper, "Deciding the cause of death after autopsy", Pollanen writes as follows:

"Pathologists are faced with the task of detecting concealed homicides, particularly of infants, children and young women. In these cases the post-mortem findings are often minimal or non-specific, and a pathologist may be tempted to over-interpret findings based on suspicious circumstances. Thus, in the past, some pathologists may have given a conclusion of 'asphyxia', 'smothering', or 'suffocation' based on non-specific findings and suspicion, or even a reported confession. Proponents of giving a definitive cause of death in these situations often argue that this is an example of diagnosis by exclusion; when all reasonable natural processes are excluded, then asphyxia is a reasonable alternative. However, in these cases the autopsy evidence is more supportive of rendering a decision of unascertained."

Saukko and Knight (P 357) in discussing the autopsy diagnosis of asphyxia (of which suffocation is one form) state:

"It cannot be emphasized too strongly that the mere finding of any of the non-specific features, such as congestion and petechiae, without firm circumstantial or preferably physical evidence of mechanical obstruction of respiration, is quite insufficient to warrant a speculative diagnosis of asphyxia. If such collateral evidence is not forthcoming, then the cause of death must be left undetermined."

"It is possible for circumstantial or other non-medical history to suggest or confirm deliberate suffocation, though this is extremely rare and not the concern of the pathologist. A caution must be offered about maternal confessions of smothering, however, as several instances are known where such a confession has proved totally false ... a number of families are reported where three or even four siblings have died inexplicably. There is always the possibility of foul play in such circumstances, though some familial metabolic or other genetic disease - albeit obscure - is more likely. Even where no trace of the latter can be detected by the most exhaustive medical investigations, if the autopsies reveal no positive evidence of mechanical suffocation or other demonstrable cause of death, the pathologist cannot then substantiate any allegation of mechanical suffocation. He can - and should - express his concern to the investigating authorities but, if their investigations produce no corroborative evidence, it is pointless for him to continue to support a hypothesis that cannot be substantiated by any pathological evidence."

The diagnosis of Sudden Infant Death Syndrome is essentially a diagnosis of cause of death undetermined in an infant where there has been a thorough autopsy, no cause of death found and the circumstances are not strongly suggestive of an alternative cause. It encompasses the possibility of smothering, although in the minds of parents and perhaps some pathologists it has acquired the status of natural causes. It is possible to smother a baby or young child and leave little or no signs. On the other hand, there are natural diseases which run in families and which lave little or no signs for discovery at autopsy.

"In any death, whether sudden or unexpected, alternatives can and should be considered beyond the obvious. However, it is not appropriate to consider diseases that have not been verified or conditions that cannot be documented." (Dr Ophoven)

On this basis, what does one do with information in a paper co-authored by well respected experts in Sudden Infant Death Syndrome entitled: The Sudden Infant Death Syndrome Gene: Does it exist? SH Opdal, TO Rognum; Paediatrics 2004; 114; 506-512. It concludes as follows:

"It is unlikely that one mutation or polymorphism is the predisposing factor in all SIDS cases. However, it is likely that there are 'SIDS genes' operating as a polygenic inheritance predisposing infants to sudden infant death, in combination with environmental risk factors ... In the future, some of the cases now diagnosed as SIDS will probably be diagnosed as, for instance, metabolic or cardiac disease based on a better knowledge of the genetic basis of these and other diseases."

The paper analyses a number of gene polymorphisms that may predispose infants to sudden infant death under certain circumstances. These included "IL-10, an important immuno-regulatory cytokine that plays an important role in the development of infectious disease; ... serotonin transporter gene influence(ing) a broad range of physiologic systems, including the regulation of breathing, the cardiovascular system, temperature, and the sleep wake cycle."

It is not reasonable to assert, as Dr Ophoven does, that we must regard the state of knowledge as frozen and not take into account possible future developments. This approach may have been a justification, prior to the identification and definition of SIDS as a syndrome, for concluding homicidal suffocation in many cases on the basis of a diagnosis of exclusion (nothing found at autopsy and it being known that suffocation may leave no signs) where the mother was alone with the baby at around the time of death and for some reason not believed. This would clearly have been wrong.

"In this case there is no known entity that is consistent with the facts present to explain these deaths except the homicidal act of another person." (Dr Ophoven)

I obviously accept that homicide is a possibility. I simply do not accept that a pathologist is in a position to make this conclusion on the information available in this case. I myself feel unable to make this conclusion. The causes of death as given remain a possibility. There may be merit in regarding the cases of death as "Unascertained" if genetic disease of some sort is regarded as possible. However, such a possibility is encompassed in the diagnosis of SIDS.

If the prosecutors and courts do not like co-incidences, that is a matter for them. From my point of view, I have a more sceptical view of the state of knowledge of medicine than does Dr Ophoven. I leave open the possibility of conditions not well understood or yet to be discovered being properly included amongst the unknowns in this case.

137 I now turn to specific aspects of Professor Cordner's committal evidence. Unlike Dr Cala, he observed no injuries on the examination of the photos of Shania. The bloodstained fluid observed in Shania's stomach could have resulted from resuscitation techniques which Professor Cordner lists in his evidence.[34] The fluid could have been swallowed or reached the stomach passively after death and not much, if any, significance should be ascribed to it.[35]

138 In essence, Professor Cordner's committal evidence reflected the tenor of his report.

139 As with Professor Cordner, the pathologists, Drs Campbell, Burke and Ranson agreed, in essence, that signs of injury in babies that are suffocated are rarely observed. Consequently, suffocation could not be medically excluded as a possible cause of death.

140 However, Professor Cordner concludes his report with this admonition:

In my view, it is wrong on the forensic pathology evidence available in this case to conclude that one or more of the Matthey children are the victims of a homicide. There is no merit in forcing certainty where uncertainty exists. The very existence of the enigma of SIDS demonstrates how little we know about why some babies die. It is not for a pathologist to conclude that a number of infant or childhood deaths, with no significant pathological findings at all, are homicides on the basis of controversial circumstantial grounds. If this case is to result in a prosecution, I want to clearly state there is no pathological basis for concluding homicide. The findings are perfectly compatible with natural causes. The findings cannot rule out smothering in one or more of the cases, but especially in the case of Shania, it is important that absolutely no signs of asphyxia or compression of the face are present.

141 The final forensic personnel whom the Crown intend to call are dentists Barbara Lerpiniere and Nils Broders. The former practices as a paediatric specialist dentist and the latter is a dentist in private practice but who also described himself as a forensic dentist with the Victorian Institute of Forensic Medicine. I will deal with them together since Dr Broders' report reproduces that of Dr Lerpiniere, with whose opinion he agrees. Both reports describe injuries to the oral area of Shania Matthey based upon the observation of photographs. Dr Broders agrees with the opinion of Dr Lerpiniere that these injuries would not be caused by a child's lower facial impact with a coffee table. (This relates to statements attributed to Mrs Matthey by, for example, David Matthey and Shirlene Barfoort that Shania had hit her head on a coffee table on 8 April 2003.) It is not necessary to detail the findings of the dentists, it is sufficient to note their identical conclusions. Dr Lerpiniere indicated in cross-examination that she had never been told the findings of the pathologist, Dr Ranson (or rather lack of them) in the area of the child's face. Nor had she been told of the findings of the three odontologists who viewed the body.

142 Dr Broders was not told of the latter findings and, by contrast, he claimed to have been told by Detective Sergeant Solomon, the chief police investigator in this matter, "that the Forensic Pathologist performing the autopsy had flagged bruises and indentations in the oral area as worthy of further investigation". He had never been informed that the pathologist had found no such thing. In these circumstances, Dr Broders agreed that he had been misled.[36] Moreover, he agreed that the information provided must have influenced his thinking as he looked at the photographs and he conceded the difficulties of dimension, colouration and reflection in photographs.[37] Finally, Dr Broders stated: "This is by and large Dr Lerpiniere's report. I agreed with all of the points. I went to her in the first instance because she is far more experienced in dental trauma in children".

143 One wonders in the circumstances the weight that a jury would accord to Dr Broders' evidence, but that is a matter for the Crown to consider.

144 It is important to add that tests of the family (including the child Dylan) have not revealed any genetic or metabolic cause of the deaths (see, for example, Dr Kym Anderson,[38] Dr Andrew Davis[39] and Professor Michael South[40]). Nor did the post-mortem examinations disclose any signs of physical trauma to any of the children.

145 Moreover, insofar as Mrs Matthey's mental state is concerned, the preponderance of the evidence is that, during the relevant period, she did not suffer from any post-natal depression (see, for example, Hilary Robinson, maternal and child care nurse[41]). Any level of depression Mrs Matthey experienced appears to have been linked to the loss of her children. Dr Peter Ryder (a general practitioner at the Kunatjarra Medical Centre) diagnosed depression on 16 September 2002, two months after Joshua's death and prescribed the antidepressant Zoloft. There is no evidence of any psychiatric illness.

146 Although I have not covered all of the medical witnesses, I have canvassed the significant aspects of that evidence in some detail as a prelude to discussing questions of admissibility.[42]

147 A major area of contention involved the ambit of the expert medical evidence. This included defence submissions that the material in its current form trespassed upon the province of the jury in their determination of the ultimate question of whether the Crown had proved beyond reasonable doubt that the accused deliberately suffocated each of her children.

148 The question of the extent to which experts may go in expressing their opinions in the fortunately few cases of this nature, is not without difficulties. It has been considered by the appellate courts in several jurisdictions.

149 The admissibility of expert evidence generally has been the subject of attention by Heydon JA (as he then was) in Makita (Australia) Pty Ltd v. Sprowles[43] (a decision of the New South Wales Court of Appeal).

150 After a comprehensive consideration of the relevant legal authorities, Heydon J summarised the principles as follows:[44]

In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge", there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, insofar as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way, it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual bases of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v. The Queen [citation given], on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise".

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Cases Cited (9)