R v Matthey [2007] VSC 398

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:

1. Aspirations of gastric contents into lungs.
   1. Plagiocephaly.[3]
2. 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:

1. Pulmonary congestion and oedema.
2. Tracheobronchitis.
3. Aspiration of gastric contents into lungs.
4. 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:

1. 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.
2. 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.
3. 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:

1. "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.

1. "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.

1. "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".

151 Heydon JA also refers[45] to the decision of the Full Federal Court in Arnotts Ltd v. Trade Practices Commission[46] where the Court (Lockhart, Wilcox and Gummow JJ) quoted with approval the comments of Sir Richard Eggleston in Evidence, Proof and Probability:[47]

... An expert must not express an opinion if to do so would involve unstated assumptions as to either disputed facts or propositions of law.

152 Against that background I turn to those cases which might be regarded as specifically pertinent to the present legal issues.

153 In the course of submissions, the defence relied upon the authority of R v. Cannings[48] in which the English Court of Appeal (Judge LJ with whom Rafferty and Pitchers JJ agreed) considered an appeal from the conviction of Mrs Angela Cannings of the murder of her two sons, Jason (7 weeks) and Matthew (17 weeks). A charge of murder relating to her first child, a daughter Gemma, did not proceed. As the headnote indicates:

At the trial, the Crown adduced evidence that three of the children, including the daughter who survived, had suffered an acute or apparent life threatening event ("ALTE"). The Crown alleged that the defendant had smothered both her sons, intending to kill them or to do them really serious bodily harm by obstructing their upper airways.

To support that allegation it was suggested that the death of Gemma and each of the ALTEs suffered by the other children were also the result of smothering by the defendant and that these actions formed part of an overall pattern. The defendant denied harming any of her children. It was her case that the deaths were natural, if unexplained, incidents to be classified as Sudden Infant Death Syndrome ('SIDS"). The expert medical witnesses called by the Crown and on behalf of the defendant disagreed about whether three infant deaths and further ALTEs in the same family led to the inevitable conclusion that the deaths were not natural.

154 Under the heading "Two critical problems" the Court made the following remarks which are worth quoting in full:

1. It would probably be helpful at the outset to encapsulate different possible approaches to cases where three infant deaths have occurred in the same family, each apparently unexplained, and for each of which there is no evidence extraneous to the expert evidence, that harm was or must have been inflicted [for example, indications or admissions of violence or pattern of ill treatment]. Nowadays such events in the same family are rare, very rare. One approach is to examine each death to see whether it is possible to identify one or other of the known natural causes of infant death. If this cannot be done, the rarity of such incidents in the same family is thought to raise a very powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family are indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained and still, despite the known facts that some parents do smother their infant children, possible natural deaths.
2. It will immediately be apparent that much depends on the starting point which is adopted. The first approach is putting it colloquially, that lightning does not strike three times in the same place. If so, the route to a finding of guilt is wide open. Almost any other piece of evidence can reasonably be interpreted to fit this conclusion. For example, if a mother who has lost three babies behaved or responded oddly, or strangely, or not in accordance with some theoretically "normal" way of behaving when faced with such a disaster, her behaviour might be thought to confirm the conclusion that lightning could not indeed have struck three times. If, however, the deaths were natural, virtually anything done by the mother on discovering such shattering and repeated disasters would be readily understandable as personal manifestations of profound natural shock and grief. The importance of establishing the correct starting point is sufficiently demonstrated by this example.
3. Before this trial began, this Court, differently constituted, had decided that the fact of three deaths [that is, that of Gemma, Jason and Mathew], as well as each of the ALTEs, provided admissible evidence relevant to each count. There could be no denying that the death of three apparently healthy babies in infancy while in the sole care of their mother was, and remains, very rare, rightly giving rise to suspicion and concern and requiring the most exigent investigation. Given the overwhelming consensus of medical evidence, it would indeed have been an affront to commonsense to treat the deaths of the three children and the ALTEs as isolated incidents entirely compartmentalised from each other. All the available relevant evidence had to be examined as a whole. Nevertheless, a degree of caution was necessary to avoid what might otherwise have been the hidden trap of taking the wrong starting point. If, for example, at post-mortem it was positively established that Matthew's death had resulted from natural causes, the situation reverted to precisely where it stood before he died. The concerns which would have arisen as a result of his death - as the third in the sequence - would have been dissipated. It would have been a positive innocent explanation for the death, which would no longer be a SIDS, and might help to confirm that the earlier deaths were indeed natural deaths. Equally, if there were unequivocal evidence that one of these deaths, or even one of the ALTEs, had resulted from deliberate infliction of harm by the defendant, that would be likely to throw considerable light on the question of whether the other deaths, or ALTEs, resulted from natural or unnatural causes. If, after full investigation, the deaths or ALTEs continued to be unexplained, and there was nothing to demonstrate that one or other incident had resulted from the deliberate infliction of harm, so far as the criminal process was concerned, the deaths continued properly to be regarded as SIDS, or more accurately, could not properly be treated as resulting from unlawful violence.
4. Reverting to the two possible approaches to the problems posed in a case like this, in a criminal prosecution, we have no doubt that what we have described as the second approach is correct. Whether there are one, two, or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm. That represents not only the legal principle, which must be applied in any event, but, in addition ... at the very least, it appears to us to coincide with the views of the reputable body of expert medical opinion.
5. As we have already emphasised, the question in this case was whether there were any crimes at all, and whether there were, in the legal sense, any victims of crime. ... there was no direct evidence and very little indirect evidence to suggest that they were, and there was further evidence which tended to suggest that they were not. Mrs Cannings was not contending, for example, that someone else had harmed her babies, or that she had caused an injury accidentally. If so, the jury might reasonably have thought that three infant deaths as a result of accidents, all at the hands of their mother, would be highly improbable, or equally, that her presence at home, on her own, when each of these "accidents" occurred, extinguished any realistic possibility that someone else was responsible. Mrs Cannings' defence was simple: she had done nothing to harm any of her children. Although she was contending that the deaths were natural, notwithstanding specialist evidence called on her behalf at trial, she could not explain them, and she was not seeking to offer an explanation of her own. And, unusually, she was doing so in the very special context that medical specialists, both domestically and internationally, continued to acknowledge that the death of an infant or infants at home can simultaneously be natural and unexplained, even by them.

155 Later in the judgment the Court quoted the words of a consultant paediatric and peri natal pathologist, Dr Rushton, who had said:

However, in a family with a history of this type current dogma is that an unnatural cause has been established unless it is possible to demonstrate an alternative natural explanation for these events.

That dogma encapsulates what in a criminal case we have described as the first, and we would emphasise, the erroneous approach.[49]

We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered ... Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process, however, much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case [on both sides of the argument] will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.

156 It is clear from the summary of the trial material, that evidence of the various ALTEs was considered to be relevant. Indeed, the Court indicated:[51]

... Our earlier warnings about the danger of taking the wrong starting point or making inappropriate assumptions of guilt do not mean that the sequence of events was irrelevant. As we have said, the deaths and ALTEs were not and could not be treated as "isolated incidents, entirely compartmentalised" from each other. Defence as well as prosecution experts were troubled by the sequence.

Indeed, it appears that at least one of the medical experts ventured the view that the ALTE experienced by another child of the family, Jade, had resulted from smothering.[52] This was because he believed the episode was respiratory in nature and characteristic of oxygen deprivation. Having eliminated the other possibilities, he concluded that the ALTE had resulted from smothering.

157 The Court ultimately rejected the Crown assertion that the deaths and ALTEs constituted a pattern of events, categorising them rather as "a series".[53] The Court went on to make these concluding remarks:[54]

1. We recognise that the occurrence of three sudden and unexpected infant deaths in the same family is very rare, or very rare indeed, and therefore demands an investigation into their causes. Nevertheless, the fact that such deaths have occurred does not identify, let alone prescribe, the deliberate infliction of harm as the cause of death. Throughout the process great care must be taken not to allow the rarity of these sad events, standing on their own, to be subsumed into an assumption or virtual assumption that the dead infants were deliberately killed, or consciously or unconsciously to regard the inability of the defendant to provide some convincing explanation for these deaths as providing a measure of support for the prosecution case. If on examination of all the evidence every possible known cause has been excluded, the cause remains unknown.
2. The trial, and this appeal, proceeded in a most unusual context. Experts in many fields will acknowledge the possibility that later research may undermine the accepted wisdom of today. "Never say never" is a phrase which we have heard in many different contexts from expert witnesses. That does not normally provide a basis for rejecting the expert evidence, or indeed for conjuring up fanciful doubts about the possible impact of later research. With unexplained infant deaths, however, as this judgment has demonstrated, in many important respects we are still at the frontier of knowledge. Necessarily, further research is needed, and fortunately, thanks to the dedication of the medical profession, it is continuing. All this suggests that for the time being, where a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death, and a body of such expert opinion concludes that natural causes, whether explained or unexplained, cannot be excluded as a reasonable [and not a fanciful] possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there is additional cogent evidence, extraneous to the expert evidence, such as we have exemplified in para [10], which tends to support the conclusion that the infant, and where there is more than one death, one of the infants, was deliberately harmed. In cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.
3. In expressing ourselves in this way we recognise that justice may not be done in a small number of cases where in truth a mother has deliberately killed her baby without leaving any identifiable evidence of the crime. That is an undesirable result, which however avoids a worse one. If murder cannot be proved, the conviction cannot be safe. In a criminal case, it is simply not enough to be able to establish even a high probability of guilt. Unless we are sure of guilt the dreadful possibility always remains that a mother, already brutally scarred by the unexplained death or deaths of her babies, may find herself in prison for life for killing them when she should not be there at all. In our community, and in any civilised community, that is abhorrent.

158 It is important to note, however, that the comments in Cannings' case were subsequently explained by the Court of Appeal in R v Kai-Whitewind.[55] The Court (Judge LJ, Hallett and Leveson JJ) stated in relation to the paragraphs just quoted:[56]

1. A preliminary point is that these observations were not directed to the conduct of the trial by the judge. Initially they are directed to the prosecution process, but they would plainly be relevant to an argument that there was no case to answer, or indeed, to that rare occasion when the judge considers whether to withdraw the case from the jury at the close of all the evidence. They provide an emphatic criticism of the prosecution's theory that the rarity of three deaths, not specifically identified as natural, raises an overwhelming or virtually overwhelming inference, that the deaths resulted from the infliction of deliberate harm. This reasoning was flawed and "for the time being" should not be applied. The words "for the time being" make it abundantly clear that Court was not suggesting a fresh proposition of law of general effect, but rather focussing on the proper approach in cases like Cannings in the light of the state of contemporary medical knowledge. This is emphasised by the introductory words to paragraph 178 itself that "the trial, and this appeal, have proceeded in a most unusual context", followed by the observation that, "with unexplained infant deaths, however, as this judgment has demonstrated, in many important respects we are still at the frontier of knowledge". In such circumstances, the absence of any other cogent evidence beyond the inferences drawn from coincidence, the jury would lack any reasoned basis for preferring the opinions of one reputable set of experts to the other in an area where the true knowledge, even of the experts themselves, is necessarily limited. The judgment as a whole, and paragraph 178 itself demonstrates that the Court had in mind "cases like the present", that is, Cannings itself which depended on the inferences based on coincidence, or the unlikelihood of two or more infant deaths in the same family, or one death where another child or other children in the family have suffered unexplained ALTEs.

1. In reality, the problem with the argument based on reading paragraph 178 of Cannings outside its context, is that carried to its logical conclusion, the submission would mean that whenever there is a conflict between expert witnesses, the case for the prosecution must fail unless a conviction is justified by evidence independent of the expert witnesses. Put another way, the logical conclusion of what we shall describe as the overblown Cannings argument is that where there is a conflict of opinion between reputable experts, the expert evidence called by the Crown is automatically neutralised. That is a starting proposition and is not sustained by Cannings.
2. In Cannings there was essentially no evidence beyond the inferences based on coincidence which the experts for the Crown were prepared to draw. Other reputable experts in the same specialist field took a different view about the inferences, if any, which could or should be drawn. Hence the need for additional cogent evidence. With additional evidence, the jury would have been in a position to evaluate the respective arguments and counter arguments: without it, in cases like Cannings, they would not.

The Court also discussed the situation where there was a dispute between experts[58] commenting:

1. In the context of disputed expert evidence, on analysis, what was required in this case was no different to that which obtains, for example, when pathologists disagree about the cause of death in a case of alleged strangulation. An argument whether the hyoid bone was fractured before death [supporting the conclusion of strangulation] or whether it occurred post-mortem, perhaps during the course of the autopsy itself [which would discount strangulation], is commonplace. More important, it does not alter the fact that the hyoid bone was fractured. But even if the experts disagree about whether it was indeed fractured, those were questions for the jury. Cannings does not produce the result that it follows from an argument between experts that the issue whether the fracture occurred before or after death, or whether there was a fracture at all, is not appropriate for the jury's consideration. Evidence of this kind must be dealt with in accordance with the usual principle that it is for the jury to decide between the experts, by reference to all the available evidence, and that it is open to the jury to accept or reject the evidence of experts on either side.[59]

159 In Australia the leading authority is R v Folbigg in which there are two decisions by the New South Wales Court of Criminal Appeal. The first of these[60] was an appeal from a decision of Wood CJ at CL refusing an application for separate trials for the applicant Kathleen Folbigg who was presented for trial for the murder of her four infant children, Caleb, Patrick, Sarah and Laura. Additionally, she was charged with maliciously inflicting grievous bodily harm to Patrick with intent to do him grievous bodily harm. [This charge related to an ALTE which occurred some four months before his eventual death.]

160 In effect, the application was to have the counts relating to Patrick heard separately from those concerning the other three children. Much of the legal discussion related to the statutory requirements in New South Wales for coincidence and tendency evidence. However, some aspects of the judgment are relevant to the present issues. The Court did not dissent from the approach of Wood CJ when he stated:[61]

1. In conclusion, as I have observed, it is sufficient for this application that the expert evidence be limited in the way outlined, that is, to show that induced asphyxia was a possible and consistent cause of each death and ALTE. I would need to be persuaded that the Crown could take the next step, at least having regard to the reports as they presently stand, that it was in fact the cause of death, to the exclusion of any other cause as a rational possibility. That is the ultimate issue for the jury which seems to me to depend upon more than the medical evidence.

161 The Court of Criminal Appeal noted that, in reaching that conclusion, Wood CJ based his decision:

only on so much of the medical evidence as was not in any way affected by statistical considerations in such a way as to be liable to be rendered inadmissible.

162 Indeed, the use of statistical evidence [here the probability of multiple SIDS deaths in one family] was expressly disapproved in R v Sally Clark.[62]

163 In the second Folbigg appeal[63] the New South Wales Court of Criminal Appeal (Sully J with whom Dunford and Hidden JJ agreed) was concerned with the appeal of Mrs Folbigg against her conviction for the murder of Patrick, Sarah and Laura, and the manslaughter of Caleb. For present purposes it is sufficient to draw attention to the issue of coincidence reasoning addressed by the trial Judge, Barr J in a ruling made on 16 April 2003. Unfortunately, scant reference is made to the ruling by the appellate court. Apparently, a portion of it dealt with the proposed evidence of the witness Dr Cala. Some clue may be found in a subsequent ruling relating to a Dr Berry and a Professor Herdson. In the course of that ruling the trial Judge stated: [64]

1. ... It seems to me that both witnesses can give evidence based upon their experience, both on their own account and from their knowledge from communication with other experts in their field of the incidence of unexplained infant deaths. It seems to me to be permissible for Dr Berry to give evidence that the sudden death of four infants in the same family who were previously well due to natural disease is unprecedented, and he can make that statement of opinion from his own experience. He can also say that he knows of no substantiated examples from the literature.
2. So long as he deals with the cases individually and does not rely on the kind of coincidence reasoning against which I ruled in considering Dr Cala's evidence, it seems to me also that Dr Berry is entitled to say that he is unable to rule out that Caleb, Patrick, Sarah and possibly Laura were suffocated.
3. It would not be permissible, however, for him to continue to say that he could not rule out that they were suffocated by the person who found them lifeless, because although in one sense unexceptionable, that is a piece of loaded evidence and liable to be misunderstood by the jury. He should not, in any case, say that he thinks that it is probable that that was the case.

The Judge expressed a similar view in relation to the evidence of Professor Herdson.

164 The Court of Criminal Appeal later expressed the view that such evidence:

does no more than to establish - if accepted, a matter entirely for the jury - that reputable and apparently reliable expert opinion cannot identify another known case where four infants in one family have died successively from unknown natural causes. That fact is no more than a piece of circumstantial evidence of which the Crown case argues that, when added to all other known facts and circumstances concerning the four deaths, there is no other reasonable hypothesis than that the four deaths were unnatural.

165 The limited nature of this expert evidence and the prohibition against coincidence reasoning is exemplified by the general directions of the trial Judge quoted by the appellate court:[65]

You must not say that simply because the accused killed a particular child or caused Patrick's ALTE she must have killed all the children and caused Patrick's ALTE. Putting it another way, if you are satisfied beyond reasonable doubt that the accused is guilty of any of the charges, you may not say that she is therefore automatically guilty of them all. That is an unfair way of approaching the matter and you must not use it.

When you come to consider whether the accused smothered any child, you are entitled to take into account far more than the doctors were in coming to their opinions. You are entitled to take into account, as they were not, the unexpected deaths of the other three children, and Patrick's ALTE, and all the circumstances surrounding those deaths and that ALTE. You are also entitled to take into account all the other evidence in the case, particularly the entries made by the accused in her diaries from time to time, and any meaning that you attribute to those entries.

166 I interpolate that, in Folbigg's case, the Court took the view that entries in Mrs Folbigg's diaries provided compelling material beyond any medical evidence, that the five incidents with which she was charged were not unexplained coincidences but were the result of deliberate acts perpetrated by her.

167 The judges go on to discuss the nature of the trial judge's charge in relation to other aspects of the case which it is not necessary to consider at this stage.

168 The final case to which I wish to refer in any detail is R v Sally Clark[66] (a decision of the English Court of Appeal, Kay LJ, Holland and Hallett JJ). This was a hearing which arose out of the emergence of fresh evidence after a trial and earlier unsuccessful appeal by Mrs Clark against convictions for the murder of her two baby sons.

169 For present purposes it is sufficient to quote briefly from the Court's view of the significance of some of the circumstances advanced by the prosecution at trial:[67]

1. The prosecution put their case at trial in the following way. First they pointed to a number of similarities and the detailed history of the death of each child which they suggested went far beyond coincidence. They submitted that in such circumstances where there was no evidence in each case to suggest that the child had died from natural causes, the inference could safely be drawn that the death resulted from the act of the person in whose care the child was when he suddenly became unwell, namely the appellant. The similarities were:

(i) Christopher and Harry were about the same age at death namely 11 weeks and 8 weeks.

(ii) They were both discovered unconscious by Mrs Clark in the bedroom, allegedly both in a bouncy chair.

(iv) Mrs Clark had been alone with each child when he was discovered lifeless.

(v) In each case Mr Clark was either away or about to go away from home in connection with his work. ..."

There were other similarities suggested which are irrelevant to the consideration of this approach.

1. As to factors (i), (ii), (iv) and (v), we fail to see how realistically on the facts of this case they can be thought to be any significant indication of murder. Some are open to real criticism. Babies are at their most vulnerable in the first few weeks of their life. Therefore it is difficult to see how any sort of adverse conclusion could properly be drawn simply from the fact that one died at 8 weeks old and the other at 11 weeks old. Children frequently spend the majority of the early part of their life in the sole care of their mother and hence it cannot in any way be said to [be] an unusual feature for just two events to occur when the babies are in their sole care. The suggestion that the coincidence of the fact that Mr Clark was out on the night when Christopher died and the fact that he was going away the day after Harry died were in some way significant is one we cannot accept. In the ordinary incidence of family life, it could be anticipated that some imprecise similarity of this kind could always be found. If there was any evidence, which there was not, that on each occasion the appellant had been distressed by the absence of her husband, we could begin to see that the coincidence of distress might be thought to be significant but otherwise we fail to see the relevance.

171 Relatively unique cases such as the present one may be seen to present real challenges for the legal process in dealing with expert medical opinion. This conjunction of law and medicine and "the challenge of achieving a legally and medically fair result in a trial that is based largely on circumstantial evidence" was the subject of a recent article in the Australian Journal of Forensic Sciences entitled "The Case of Kathleen Folbigg: How did justice and medicine fare?"[68] The authors[69] from the School of Psychology, University of New South Wales, examined the medical evidence given at the Folbigg trial. In assessing the impact of the medical evidence, the authors are critical of the trial of the four cases together. In their view:

The case lays bare the inherent uncertainty and fallibility of medical opinion about the cause of an infant's sudden and unexpected death. Medical opinion is based to some degree on clinical judgment and, like any decision-making task, the subject of bias and error. The case illustrates how developing a legal argument that the accused has committed the crimes can transform circumstantial evidence, which may have been unrelated or innocent, into markers or "proof" of guilt. Numerous inferences were drawn to fit circumstantial evidence into a compelling argument to find the accused guilty. Inferences are as prone to error as professional judgment. Whether existing legal procedures can effectively minimise these errors is a separate issue.[70]

172 Drawing upon the literature in the field of sudden unexpected and unexplained infant deaths, the writers' comment:

When an infant dies suddenly, autopsy examinations can provide a probable cause of death based on the available medical knowledge about likely mechanisms in other instances of infant death. However, autopsy examinations are unable to distinguish between SIDS and inflicted suffocation. The deaths of the Folbigg children were initially viewed as unrelated based on varying and uncertain causes reported following each autopsy. However, when a number of children die in one family without a physiological explanation (such as genetic or metabolic abnormalities), suspicion falls on those present at the death scene, typically one or both parents. This suspicion may not be justified if external signs of trauma are absent. Sudden Infant Death Syndrome (SIDS) is a term applied when an infant is found unexpectedly dead after sleeping with no cause of death ascertained. The syndrome is contentious, and there is limited agreement as to its symptoms, other than that it is unlikely to represent a single disease with a unique cause. Instead, SIDS may be a complex amalgam of predisposing factors, external stresses, and underlying vulnerability. Different factors may have different effects on different individuals. Primarily, SIDS is a phenomenon of early infancy (under 12 months) and unexpected deaths after one year of age are regarded as unusual. This definition is important, as it recognises that attributing a death to SIDS requires more than a thorough pathological evaluation. Many subtle natural diseases in infancy result in unexpected death, and infants may be seriously ill with few signs and symptoms. Similarly, the findings at autopsy in infants after accidental or inflicted asphyxia are often minimal ... "as SIDS is diagnosed through a process of exclusion, the term SIDS should not be used if there is" possible accidental asphyxia, inflicted injuries, or significant organic diseases.[71]

173 Reference is made to a recent study[72] in which it was asserted that "not only can SIDS recur in one family but the risk of a second death increases after one SIDS death has occurred".[73]

If autopsy investigations have not yielded physical evidence of external trauma or suffocation, there is no physiological or pathological basis for a medical expert to concede or to raise the possibility of inflicted suffocation. In Folbigg, however, this is precisely what a number of medical experts conceded or raised in the absence of external physical evidence of inflicted suffocation for each of the four Folbigg children. Further, as inflicted death or murder is less common than any known medical cause of death in infants, and this statistical difference was not rigorously pursued by the defence, there is a real risk that undue weight was given by the medical experts and jurors to the explanation of inflicted death.

Alone, none of the infant deaths was suspicious. At most, the cause of death was undetermined, meaning that medical investigations did not provide an explanation. Arguably, taken together, the four deaths were also not necessarily suspicious. The legal decision to admit evidence regarding four deaths forced medical experts to consider the meaning of these events in one family. The medical experts conceded that they had not seen, nor could they find in the literature, a case documenting four deaths without a medical or natural cause. This hypothesis does not entertain the real possibility that separate, non-inflicted mechanisms were involved (such as subtle breathing/airway/apnoea issues, premature birth). It is not logically necessary to conclude that because a medical or natural account is unavailable, the cause must be inflicted death.

176 Under the heading Medical Opinion and Biases the writers remark:[75]

Notwithstanding the increasing body of science on which medicine is based, clinical judgment represents a substantial portion of medical decision-making. Research on decision-making has shown that clinical judgment and decision-making are often unreliable. However, the law appears to accept medical evidence as factual and objective on the basis that it is physical and measurable. The evidence of more than eight medical experts who testified in Folbigg, each espousing different views on a variety of medical issues, challenged the notion that there is one "correct" answer regarding the cause of the infant deaths. ...

The legal system assumes that evidence management (adversarial process, cross-examination, rules for admission of evidence, judicial warnings, deliberation) corrects for biases or errors involved in reasoning in the context of evidence proffered by medical experts. However, as medical opinion on causation is probabilistic and involves clinical judgment, it cannot be assumed that it is possible to arrive at an error-free "correct" view about the cause of death(s), either legally or medically. Clinical decision-makers use heuristics or cognitive short cuts in a similar manner to lay decision-makers, which in turn contribute to errors in clinical judgment.

[The authors refer to an extensive list of articles which I have not identified for the purpose of this ruling.]

177 The legal difficulties which beset cases of this type as well as the legal approaches to be adopted are enumerated in the authorities cited. Bearing these principles in mind, I now turn specifically to the evidentiary issues insofar as they relate to the medical evidence. A number of them were resolved in the course of argument.

178 The Crown indicated that it did not propose to lead any statistical material. I take that to relate to all medical witnesses.

179 Further, evidence of a purported profiling of mothers who intentionally suffocate their infants contained in the statement of Dr Beal was not to be adduced; nor evidence of an anecdotal nature.

180 Evidence of a hearsay nature from Drs Nelson and Anderson would similarly not be led.

181 In relation to Dr Ophoven, no evidence of her expressed suspicions of foul play was to be placed before the jury; nor would her expressions of opinion about "homicidal assault" or "homicidal suffocation" which trespass upon the province of the jury, be led. The Crown also indicated that it would not seek to tender a chart prepared by the doctor. Further, Dr Ophoven would not be proffering opinions "to a reasonable degree of medical certainty" which is not a concept known to Australian law.

182 Indeed the Crown disavowed generally, any intention to lead evidence of suspicion or any evidence that went beyond expressions of medical opinion. That raises the question of the ambit of such opinion and the facts upon which it can legitimately be based.

183 In cases such as the instant one, the medical expert can go no further than to express the opinion (and I adopt the words of Wood CJ) "that induced asphyxia was a possible and consistent cause of death and ALTE"[76] (assuming that to be the witness' ultimate opinion).

184 In this case (as in Folbigg) the determination of the actual cause of death is a matter for the jury and the medical evidence must be limited to opinions of the diagnostic possibility of, or consistency with, an asphyxial episode.

185 In relation to the various ALTEs, whilst the defence conceded this material to be relevant as to the state of health of a child such as Jacob a short time before his death, objection was taken to the evidence being led, in effect, as an uncharged act of attempted murder by suffocation. A similar defence objection was taken to the ALTE (if properly so called) involving Shania.

186 It is my view that such evidence, appropriately limited, is not only part of the medical history of the child in question but the occurrence of an ALTE may become part of the circumstantial case advanced by the Crown. On the other hand, the defence may seek to use the material to depict a child exhibiting a medical disability prior to their eventual death.

187 Up to this point my remarks have been addressed to the approach of the medical expert to each of the individual deaths. However, the Crown desires to go further and argues that, in considering the cause of death of any individual child, the medical evidence in relation to the other children is relevant.

188 I do not agree with this contention. Experts can point to the rarity of four unexpected and unexplained deaths in the one family on the basis of their experience and knowledge of the literature, but to utilise that factor in allocating a cause of death in an individual case is to indulge in impermissible "coincidence reasoning " of the type apparently disapproved of by Barr J in Folbigg.[77] Put another way, such an approach simply begs the question.

189 From a medical perspective, let it be assumed that one child has died from suffocation. It does not follow that this must be the cause of death of the other children. This is particularly so in circumstances where the deaths themselves are attributed by the original pathologists to disparate causes.

190 Insofar as there is medical evidence of the lack of any genetic or metabolic causes which may account for death, these are factors which may be considered in relation to each child. In the same way, the lack of any signs of physical injury or trauma to a particular child is a relevant medical fact to be taken into account in considering possible causes of death.

191 In cases of this nature I have no doubt that the approach enunciated in Cannings case should be adopted. The rarity of the phenomenon of four unexpected and seemingly unexplained deaths in one family cannot, of itself, provide a cause of death.

192 In my view there is a distinction to be drawn between the embargo upon medical witnesses relying upon coincidence reasoning as a basis for assigning a cause of death and the approach which may be taken by the jury. The latter are entitled to take into account, as a piece of circumstantial evidence, the rarity of four infants in one family dying from unknown natural causes and to utilise it, along with other pieces of circumstantial evidence, in determining whether the Crown has succeeded in proving beyond reasonable doubt that the deaths were unnatural and that the accused was responsible for them. This distinction between the role of the medical expert and that of the jury was recognised by Barr J in his jury charge which I have quoted at para [165] above.

193 Additionally, there are portions of the evidence which, in my view, cannot be legitimately taken into account by the medical experts to found their opinions. Pre-eminent amongst these is the fact that each of these children was alone with Mrs Matthey (as the only adult) at the time of an ALTE or terminal event. As was made clear in Clark's case,[78] children of a young age will almost inevitably be in the presence of their mother as the principal carer. Consequently, this fact cannot, of itself, have any relevance or probative weight in determining a cause of death. Of course, if a jury was prepared to infer that the cause of death of any child was non-accidental suffocation, the inference that it was Mrs Matthey who perpetrated the fatal act or acts, would be a compelling one.

194 There were a number of other matters canvassed in argument. One related to the absence of an apnoea monitor on Joshua at the time of his death. In my view, this cannot be regarded as suspicious (as Dr Ophoven asserts) given the circumstances of the trip to the park and the supermarket. It may be different, for example, if the monitor was absent when Joshua was sleeping at home. Indeed, Hilary Robinson the maternal and child health nurse who had dealings with Mrs Matthey stated that it was common practice for parents who were vigilant and alert not to use a monitor during the day.[79] Further, from the time Joshua was 2 months old Ms Robinson was aware (having been told by Mrs Matthey) that the apnoea monitor was only being used at night. In any event, it is not a fact which can legitimately be called in aid in forming a medical opinion of the possible cause of death.

195 Similarly, I do not regard the circumstance that Joshua Matthey's death occurred in a public place to be a legitimate factor in the medical assessment of his cause of death by Dr Burke.

196 In relation to Shania Matthey, the Crown wish to adduce evidence from Dr Ophoven to the effect that, having reviewed the 000 tape recording the conversation between Mrs Matthey and the witness Purcell, it revealed "sounds consistent with a baby gasping".[80] It is to be noted that, far from being a baby, Shania was 3½ years old at this time. Dr Ophoven's expertise is said to derive from observing a video tape of the suffocation attempt by a father on his daughter, and hearing the reaction of the 10 month old infant victim after a facial obstruction was removed. It is sufficient to state that I do not regard this single episode involving a 10 month old baby as vesting Dr Ophoven with sufficient expertise to express the view which the Crown seek to elicit.

197 Similarly, it is difficult to discern what the calling of Ms Purcell would add to her tape recorded comments. Ultimately, whether the sounds emanate from Shania Matthey or the family television, is a jury matter.

198 I am conscious that my rulings upon the ambit and factual foundation of the opinions of Drs Beal, Cala and Ophoven may involve a recasting and/or reconsideration of the cogency of their evidence. That was one of the reasons I have set out the medical evidence and the case law in some detail.

199 What is abundantly clear from an overview of the medical evidence is the conflict in expert opinion as to the cause of death of each of the Matthey children. Consequently, the Crown case is dependent upon additional circumstances to which I now turn.

200 As part of its circumstantial case, and for the purpose of the augmentation and interpretation of the medical evidence, the Crown seek to rely upon what may be compendiously referred to as relationship evidence.

201 That evidence concerns the relationship between the accused and her husband, Stephen, and between the accused and her children. It is the Crown submission that the accused engaged in conduct designed to ensure both the continuity and improvement of her marital relationship. It is contended that, at various stages of that relationship, particularly at the time of the ALTEs and/or the deaths of the children, there is evidence capable of demonstrating that the marital relationship had reached the point of separation of the parties or was under severe stress.

202 The source of this material is the evidence of the observations of friends, relatives, and neighbours of the accused together with evidence of comments made to them by the accused or her husband.

203 Moreover, it is asserted that the relationship of Mrs Matthey to her children evinced by unwanted and unplanned pregnancies, mediocre parenting, and indifference to their deaths, would enable a jury to infer that they were the unfortunate pawns in this strategy to bolster her marital situation.

204 The defence opposed the admission of the relationship evidence. Insofar as that opposition was based upon the concern that the evidence was to be led by the Crown in order to provide a factual foundation for the profiling of Mrs Matthey as a paradigm child killer by the medical witnesses Beal or Ophoven or by the police sergeant Catherine Wilkins, it is no longer the intention of the Crown to adduce this evidence. Consequently this is a non-issue. In any event, if required to rule on that material, I would have regarded it as inadmissible.

205 However, the Crown do seek to lead relationship evidence for the purposes to which I have already adverted.

206 The principles relating to relationship evidence are conveniently discussed by Winneke P (with whom Phillips and Chernov JJA agreed) in R v Anderson.[81]

207 Following the earlier High Court decision of Wilson v R[82] Winneke P noted:[83]

... such evidence has been admitted to prove motive or to establish the intent of the accused, or to negative a defence of accident, self defence or provocation. Such evidence can be admitted either for or against the interests of the accused. It would be contrary to common sense, for example, to exclude evidence which pointed to an entirely harmonious and compatible relationship between the accused person and his wife or partner if such evidence was relevant to the defence of the accused person: [Wilson v R cited]. Likewise it will be contrary to reason and common sense to exclude evidence of previous violent acts by the deceased towards the accused person, or others, if such conduct had a relevance to the issues at trial. [Authorities cited.]

208 In Wilson v R,[84] Barwick CJ explained the admissibility of this type of evidence as follows:

It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance it is inadmissible ... It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn ...

209 The defence, in presenting their argument against admissibility, referred to the comments of Callinan J in Gipp v The Queen:[85]

I do not accept that non-specific highly prejudicial evidence may be led by the prosecution, and juries told that it might provide "part of the essential background" against which the other evidence is to be evaluated.

182. I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such.

210 I would have thought that, in these passages, Callinan J is essentially stating the law as it is reflected in such cases as Wilson and Anderson.

211 The evidence the Crown is endeavouring to adduce is, so it is claimed, capable of demonstrating motive and to establish that the deaths of the children were not accidental or coincidental. It is evidence which demonstrates a pattern or system of conduct and, consequently, has significant probative value. It constitutes a species of circumstantial evidence which is directed to these specific ends. Even if construed as propensity evidence, and viewed through the prism of s.398A of the Crimes Act 1958 ("the Act"), it would pass the test set out in sub-s.(2) of that section.

212 In this regard I note the comments of Callaway JA in R v. Best:[86]

... It is appropriate that any division of propensity evidence be inadmissible unless its probative value makes it just to admit the evidence despite any prejudicial effect it may have on the accused. Mere background evidence [comments of Callinan J in Gipp v R cited] is unlikely to meet the test but legitimate evidence of relationship will usually be admitted. That is because, if the proper directions are given, the probative value of such evidence ordinarily outweighs its prejudicial effect.[87] [88]

213 It is the Crown's submission that this evidence does not fall into the category of generalised highly prejudicial background evidence. I will shortly examine this evidence to determine whether, taken as a whole, it is capable of sustaining the propositions advanced by the Crown.

214 Before considering this genre of evidence generally, there are three particular aspects of it which may conveniently be considered separately. The first concerns the events of 11 and 13 July 1998. These episodes may be pieced together from various witness statements. Given that the witnesses were not asked to recall the episodes until five or six years after the events, there is some vagueness as to what occurred.

215 At this time Dr Carl Grace who was, along with a Dr Soo and others treating Mrs Matthey, in the capacity of general practitioners, records Dr Soo prescribing Panadeine Forte for Mrs Matthey on 10 July 1998 after she presented with a headache.[89]

216 On the next day, 11 July, Bernard Malone, a MICA paramedic, was called (apparently by Stephen Matthey who could not wake his partner Carol) and attended the family home at Herne Hill. Arriving at 7.00 a.m. the paramedic found Mrs Matthey in bed. Although conscious with her eyes open and blinking, she was non-responsive to painful stimuli. Initially she was also non-responsive to verbal communication and her heart rate was high.

217 En route to the Geelong Hospital, she started to talk although confused. Mr Malone believed her demeanour was consistent with her being depressed.

218 As part of the history Mr Malone obtained from Stephen Matthey, he recorded Carol Matthey as having been depressed for the previous two weeks and having taken two Panadeine Forte (prescribed by her doctor) before going to bed the previous evening. That morning, being unable to wake her, Stephen Matthey had called an ambulance.

219 Stephen Matthey's own account in his statement[90] is to the effect that he could not wake Carol even after shaking her and slapping her face. His recall of this type of occurrence is limited to the one occasion.

220 On admission to the Emergency Department of the Geelong Hospital, Mrs Matthey (at this time Carol Knuckey) was seen by Dr Liz Baker. The only addition to Mrs Matthey's medical history recorded by Dr Baker, was that she had had headaches for about one month and had been a little bit depressed lately. According to Dr Barker she was initially teary and with flat affect.

221 A series of differential diagnoses made by Dr Barker included drug overdose, depression, conversion disorder, or a cerebral cause.

222 The oversight of Mrs Matthey was taken over by Dr Jaycen Cruickshank who, in essence, eliminated all of the possible diagnoses except a cerebral cause. In his opinion Mrs Matthey was "post-ictal" - that is "she most likely had a seizure, was found in the post-seizure phase and gradually returned to normal".

223 According to Dr Cruickshank's clinical notes, Mrs Matthey was again seen in the Emergency Department on Monday 13 July. The notes record that Mrs Matthey had experienced two further episodes of the same type on the Sunday.

224 In all, Dr Cruickshank documented four episodes of syncope.[91]

225 The circumstances of Mrs Matthey's episode on the Monday are described as follows:

She had been awake on the Monday morning. Her partner rang home from work, and returned home because there was no answer. He found her on the floor in the kitchen, and again took ten to fifteen minutes to wake her up.

On arrival in the Emergency Department, Carol was alert, and orientated to time, place and person. An examination of the neurological system was within normal limits. The cardiovascular and respiratory system were also normal.

226 In cross-examination of the committal proceedings Dr Cruickshank said that various tests conducted upon Mrs Matthey including ECG, blood tests and CT scan, were normal. He confirmed that a seizure is characteristically followed by a post-ictal phase (or post-seizure) and the condition having resolved, with the subject gaining alertness and consciousness, CT scans and other tests may disclose no abnormality.[92] Dr Cruickshank also indicated that he essentially ruled out the other differential diagnoses postulated. Although Dr Cruickshank could not find the absolute cause of Mrs Matthey's episodes, the primary potential diagnosis was a seizure with some impact upon her brain.

227 I note also that in his statement Dr Cruickshank recorded:

Seizure - it is possible to have seizures, with a normal EEG and CT.

Mood disorder. Dr Barker made some notes suggestive of a mood disorder, such as depression. Post-natal depression does not cause syncope or collapse.

228 There are some witness statements describing desultory comments by Mrs Matthey about these episodes but they do not advance the matter.

229 In her statement of 10 September 2003, Mrs Matthey briefly mentioned one of the episodes. In the later record of interview of 29 April 2004, these matters were canvassed at questions 144-223. Again she recalled only one incident and she denied that was due to either post-natal depression, or depression from domestic unrest.

230 The Crown submission is that this evidence is relevant in that these episodes "are demonstrative of her attention seeking behaviour in relation to her husband in the context of an unstable relationship".

231 To even found this proposition would require the Crown to demonstrate the conduct of Mrs Matthey was feigned. That is, that she was deliberately malingering. The medical evidence, which I have recited, does not admit of any such conclusion. The Crown contention assumes the existence of the facts asserted and then attributes a speculative reason for them. This is the type of reasoning warned against in Cannings case. Of course, the assertions put to Mrs Matthey in the police interview and having been rejected by her, cannot advance the Crown case. In the circumstances it is not necessary to analyse this material further to rule it inadmissible. Mrs Matthey's statement and the record of interview will need to be edited to accord with this ruling.

232 On 12 August 1998, a fire occurred at the Matthey family home at 1 Harvey Avenue, Herne Hill shortly prior to 9.00 a.m. Members of the Geelong City Unit of the Country Fire Authority attended the scene just after 9.00 a.m. It seems clear that the blaze had commenced in a bedroom (being the bedroom of the child, Dylan Matthey) situated at the rear and on the south-west corner of the dwelling. A neighbour, Mrs Dorothy Minett, described observing smoke coming from the back of the house and of observing Mrs Matthey, together with her children Dylan and Jacob, in the driveway of the premises. Mrs Minett described Carol (Mrs Matthey) as being in her sleepwear, looking bewildered, and having a vacant look on her face.[93] According to Mrs Minett's statement, Carol talked about the fire but did not really know how it started. Speaking of herself, her husband Bill, and Mrs Matthey, the witnesses said that they all presumed it was caused by a faulty central heating unit. This view was based upon the fact of extensive damage to the back bedroom near where the central heating unit was installed.

233 Stephen Matthey attended the scene having been contacted by Carol. He arrived while the fire brigade members were extinguishing the blaze. In his statement Mr Matthey records:

Someone from the fire brigade told me the cause had something to do with gas and the heater. Carol said she was watching TV and she noticed smoke. The neighbours came out and she called the fire brigade. She got the kids out. The whole house was burnt down except for the lounge room. We had installed a central heater about two weeks earlier and it was probably faulty. We claimed it all on our insurance and the house was repaired.

234 A document entitled "CFA Preliminary Report" was prepared by one of the fire fighters who had attended the scene, Leigh Wright. Mr Wright, who is not listed as a Crown witness, gave as the cause of the ignition of the fire, the central heating unit. This finding has subsequently been disavowed by other CFA members such as Graham Lay and does not accord with the conclusion subsequently reached by Gerard Nealon, a consultant fire investigator, as to the cause of the fire. However, the significance of the cause stated in the Preliminary Report (erroneous though it may be) is that it provides support for the assertion of Stephen Matthey as to the information supplied to him contemporaneously by a CFA member. Furthermore, it provides a factual source for the comments made by Mrs Matthey to a large number of friends and relatives which, in general terms, sourced the fire to the faulty central heating unit.

235 Mrs Matthey essentially maintained that this was her understanding in her statement of 10 September 2003 (page 12) and subsequent record of interview on 29 April 2004.[94]

236 It is to be noted that since the insurance company paid out on the claim, and no allegation of arson was made by the authorities, there was nothing to disabuse Mrs Matthey of her view of the cause of the fire (assuming it was genuinely held) in the almost six years which elapsed prior to the conduct of the record of interview. It was not until that interview that the allegation that she had been responsible for starting the fire was put to her. This she denied.

237 Amongst the assertions made by the interviewing policeman (Detective Sergeant Solomon) was that no fire officer had ever stated to her that the fire was the result of a faulty central heating unit.[95] She responded:

In light of the foregoing material to which I have referred, that question may well be inaccurate and the answer may well be correct.

238 Of course, if Mrs Matthey lit the fire, as the Crown allege, the statements of Mrs Matthey may be characterised as a façade of lies.

239 In advancing the proposition that Mrs Matthey is an arsonist, the Crown rely principally on the evidence of the investigator Nealon and, to some extent, on the CFA member Lay as well as Jeffrey Abbott, Director of Rendle Pty Ltd the company which, at the relevant time (1998) manufactured Airon heaters of the type involved here. His opinion was based on an examination of photographs and, like all those involved in the fire incident, he made his statement some five years after the event.

240 It is not necessary to canvass the prosecution evidence at length (given my conclusions) but I will refer briefly to some excerpts from it. In his statement Mr Nealon, having rejected the involvement of the gas ducted heating assembly or any electrical components was the cause of ignition of the fire, comments:

Through a process of objective elimination, it was therefore considered that the remaining possible sources of ignition were reasonably limited to that of a lit cigarette butt or the involvement of a naked flame associated with direct or indirect human involvement ...

Although purely a matter of hearsay, it was reported to me by Mr Mathieson [the Insurance Loss Adjustor] that none of the occupants were "smokers" ...

In fact, the evidence reveals that both Mr and Mrs Matthey were smokers.

241 Gerard Nealon concluded his statement as follows:

In summary, I consider that the fire had originated in the immediate area of a floorboard vent to the gas ducted heating system, with this vent located at the south-eastern corner of a child's bedroom at the rear south-western corner of the building. There was no evidence that could promote any electrical cause of ignition to this fire, but the damage to the ducting throughout the underside of the building indicated that the heating unit and associated fan mechanism may have been operational at the time of the fire. No obvious evidence was identified with respect to the remains of the gas ducted heating unit to promote a probable cause of ignition to this fire, an opinion which appears to have been concurred with through an examination conducted by a qualified gasfitter.

No remains of the actual source of ignition involved with the initiation of this fire were identified and regrettably I therefore have to formally report a finding of "cause of fire not determined". However, through a process of reasonable objective elimination, it is considered that the most probable cause of ignition had related to the actions of human involvement, but the degree of intent (if any) in relation to such a cause of ignition, could not be established.[96]

242 The underlining of "appears" stems from the following circumstances. The Insurance Loss Adjustor, Ian Mathieson, engaged a specialist in gas central heating units to examine the remains of the gas duct heating assembly. He did this on the recommendation of Mr Nealon who indicated he was not a qualified gas fitter or plumber. In the ensuing six years, Mr Mathieson lost the file and has no memory of the identity of the specialist engaged. He opines, however, that had fault been found, the manufacturer would have been pursued and Mr Nealon states that he was "verbally informed" by Mr Mathieson that the examination did not indicate the cause of ignition of the fire to be the gas ducting assembly.

243 In the course of cross-examination of the committal proceedings, Mr Nealon agreed that he had found no evidence of accelerants[97]; no source of ignition; and no evidence of deliberate ignition.[98]

244 From the foregoing it is clear that, if this evidence is admitted, the issue of the cause of the fire and Mrs Matthey's involvement in it, would be significant issues at this trial. Indeed, it will create a trial within a trial. Moreover, in the conduct of this mini trial, Mrs Matthey will, to some extent, be prejudiced by the current state of the evidence and the lapse of time prior to her being faced with this allegation.

245 However, these factors standing alone are arguably insufficient to affect admissibility. But there are significant added factors. This evidence has the capacity to reveal the accused as an arsonist and, moreover, as a person with a capacity to lie about that crime to a considerable number of friends and relatives. The Crown recognises that the arson allegation carries with it a propensity element. Further, whilst it is conceded that such evidence, if accepted by the jury, would expose Mrs Matthey as a liar, it is not advanced by the Crown for the purpose of demonstrating a consciousness of guilt. This may be so, but it is difficult to see how the effect of this evidence upon her credibility could be successfully quarantined as to this specific episode.

246 The level of prejudice that would be engendered by the evidence of this event is, in my view, extremely high.

247 Accordingly, if it is to be admissible, it must have an even greater probative value.

248 The Crown submission is that it is relevant and important as part of the relationship evidence (albeit that it occurred some months prior to the death of the first of the Matthey children). It is portrayed as part of the continuum of attention-getting behaviour of the accused and that she has, in effect, "rescued" her children to bolster or revive her relationship with Stephen Matthey.

249 I was not referred to any independent medical or other evidence to support this contention; and it appears that the Crown is relying upon the event itself to found the proposition it advances.

250 In my view, this incident is of a quite different order or degree from those involved in the subsequent allegations. Further, given my ruling as to the July 1998 incidents, it cannot be said to have probative value as part of some "continuum" or escalating trend.

251 Looking at the material as a whole I have concluded that the prejudicial effect of this evidence outweighs its probative value. This is so whether applying the R v Christie discretion[99] or the test relating to propensity evidence set out in s.398A of the Crimes Act 1958.[100] Accordingly, I rule it to be inadmissible. As a consequence of this ruling the relevant statement of the accused and the record of interview will require editing.

252 Finally, in dealing with this aspect of the relationship evidence, I turn to the incident which occurred on 3 July 2003. It involved Mrs Matthey calling the police after an argument with Stephen Matthey in which he punched her in the face and smashed the windscreen of her utility vehicle.

253 According to Senior Constable Chris Anderson, who attended the scene (and subsequently arrested Stephen Matthey), Mrs Matthey gave the genesis of these events as a dispute over a female employee at Stephen Matthey's workplace, King Broccoli Pty Ltd.

254 Mention is made of this episode in the statement of Emma Matthey who was contacted by an upset Mrs Matthey the day after the event; there is also reference to it in Mrs Matthey's statement of 10 September 2003, where she describes it as a domestic dispute, and in her record of interview.[101]

255 It appears that Senior Constable Anderson, acting on his own initiative, subsequently obtained an intervention order against Stephen Matthey.

256 The Crown seek to lead the evidence of this confrontation as demonstrating "the continuity of the tempestuous and failing nature of the relationship". The defence point out that the incident occurred almost three months after the fourth and final death in the sequence and, moreover, that the relationship as a whole does not warrant the appellation "tempestuous" the Crown seek to ascribe to it. In short, it is submitted that this evidence is highly prejudicial and has no relevance to the counts on the presentment.

257 It is my view that this episode, regardless of whether it may be regarded as prejudicial, is too isolated in its nature and too temporally distant from the events the subject of these charges, to be regarded as relevant. Moreover, there is some cogency in the defence submission that there is no history of "tempestuousness" (which I take to mean physical violence) in the relationship for which this incident provides continuity. Although in her statement to Senior Constable Anderson, the accused said this was not the first time Stephen Matthey had punched her, this comment has no detail as to time context or frequency.

258 Accordingly, I rule the impugned evidence to be inadmissible. Again, some editing of Mrs Matthey's statement and record of interview will be required.

259 Insofar as other evidence of the marital relationship is concerned, the defence argue firstly that the evidence itself, relying in many cases upon the gist of conversations often recalled years later, is highly unsatisfactory. Secondly, such evidence of the accused's behaviour, is beset with unreliability and ambiguity. Comments that characterise the relationship with her husband as "a shambles" or lacking in affection; or that the accused was unhappy with her husband's affairs; or that the accused appeared isolated or depressed; at best constitute an interpretive opinion. The cogency of this objection may very much depend on the source of the views expressed. They may, for example, derive from comments specifically made by the accused to a particular witness. Insofar as the defence objection may be seen to relate to evidence of the accused's demeanour, although it may be relevant to all the relationship evidence, I will deal with it specifically at a later stage.

260 The Crown submission was, in effect, that there was no evidentiary requirement for a witness to give a verbatim account of a conversation as a prerequisite to admissibility, albeit the lack of the capacity to do so may provoke forensic criticism or attack. Prima facie, that assertion is correct. Similarly, I regard the question of reliability as essentially one for a jury. So much was made clear in Rozenes & Anor v Bejajev & Anor.[102] Of course, the Court of Appeal in that case recognised the existence of a general discretion to reject any evidence on the ground that to receive it would be unfair to the accused in the sense that any trial would be unfair. In this regard the Court (Brooking, McDonald and Hansen JJ) accepted the proposition enunciated by Vincent J (as he then was) in R v Peirce:[103]

I have no doubt of the existence of a general discretion which may be exercised by a trial judge in appropriate circumstances to exclude virtually any piece of evidence in a criminal trial. This residual discretion represents the concern which has often been expressed that the rules of admissibility of evidence should not operate to produce unfairness to accused persons. There is an overriding responsibility to ensure that the processes of our courts are as just as it is reasonably practicable to make them according to current standards.

261 The Court however, doubted the application of that general or residual discretion to the issue of unreliability. It approved the observation of Carter J. in R v McLean and Funk Ex parte Attorney General[104] that it was difficult to see how it could be said that the trial is unfair by reason of the unreliability of evidence which is probative and the circumstances which make the evidence unreliable are properly exposed for the consideration of the jury. It was the view of Carter J in the circumstances postulated, there was no discretion to exclude evidence based wholly or primarily upon the trial judge's conclusion that the evidence was unreliable. The exercise of such a discretion would usurp the jury's function.

262 The Court in Beljajev went on to say:[105]

We accept the view of Carter J. that there is no discretion to exclude evidence which is based wholly or primarily upon the trial judge's conclusion that the evidence is unreliable. But if this view be too extreme, then at least it would have to be said that the circumstances calling for a favourable exercise of the discretion would have to be most exceptional. For it can only be in a most exceptional case that one could say, as Vincent J. put it in Peirce at 277, that the considerations affecting reliability were not "comprehensible to a jury and capable of assessment by them as the proper tribunal of fact".

263 Here, the basis of the evidence is capable of forensic exploration and, if necessary, a Basha inquiry could be conducted.

264 Accordingly, I do not accept that such evidence is inadmissible under a blanket claim of unreliability.

265 I turn next to the specific material about the marital relationship. It is contained in a number of statements and was also the subject of some committal evidence. In summarising it, I will, for the sake of simplicity, refer to Mr and Mrs Matthey as Stephen and Carol and, on those occasions where the time given for specific events is not indeterminate, I will record it.

Stephen mentioned affairs to her and that Carol knew of them. She wished Stephen was more loving and affectionate towards her. He had been loving and affectionate at the start of their relationship but he changed after Dylan was born. Stephen's attitude towards her and his affairs were a real problem for her. He liked to know what she was doing all the time and tried to dominate her. There was a time [indeterminate] when Carol was living at Jodie's [Matthey] place.

There were problems with the marriage. Stephen showed Carol no affection. He gave it all to the kids. Carol craved love. On a few occasions she said she would leave him. Stephen was working long hours and his being away so much got Carol down. Carol and Stephen were distant and there was a lack of interaction between them. [This appears to be subsequent to Chloe's birth.] At this time the witness and her husband were concerned about Carol's unhappiness and arranged weekend barbeques to get Stephen away from work to spend more time with Carol and the kids. This seemed to work.

After Chloe died, Stephen would not go with Carol to counselling. He was home for two weeks. Carol did not appear to like this and went out a lot. Stephen was drinking more and working long hours. He was not really there for Carol after Chloe died. There was discussion of a vasectomy and Carol said she would agree. Ms Vanderpol's friendship with Carol fell apart when Carol was a few months pregnant [with Joshua]. The relationship of Carol and Stephen was described by her as "a shambles". Stephen said he only stayed with Carol for the kids they had together. On one occasion he said this in front of Carol, who did not react. Stephen told Ms Vanderpol that he had been unfaithful to Carol numerous times. He mentioned two women he had been with since Chloe's death. During the time she and Carol were friends, Carol and Stephen had a number of separations [indeterminate]. He would stay at the farmhouse and she, on occasions, took the kids and moved to the house of her sister, Sandra [Cossans]. [No date is given, but this would have to be prior to Joshua's birth.]

Christine Knuckey (mother of Carol)[108]

[About June/August 1998] did not think the relationship was good. Stephen was treating her badly and they were arguing a lot. He was not helping with the boys [Dylan and Jacob]. Stephen was not giving her adequate money and was checking on her movements. Carol was depressed at her situation. After Jacob's death Stephen made Carol cope without proper support. He also forbade Carol contacting her (i.e. Mrs Knuckey) anymore. Carol was afraid of Stephen to the point where she would not speak at all when he was around.

[It appears that contact effectively ceased after Jacob's death.]

Stephen was a very overbearing husband. He was not giving Carol money and he was checking her speedo to keep tabs on her. [In context this would appear to be before Jacob's death.]

Norma Matthey (Stephen's mother)[110]

The marriage seemed fine prior to Jacob's death. Stephen and Carol were separated for a few days prior to Joshua's death. They separated because they were having a few rows. After Joshua's death, Stephen told Carol to move back home, which she did.

Heather Knuckey (Carol's sister)[111]

During their marriage Stephen and Carol had their problems. A couple of times Carol was separated from Stephen as he had been seeing other women. [No dates provided.]

Gene Matthey (Stephen's brother)[112]

Carol and Stephen have had their problems because they have separated and gotten back together a few times since they've been together. Stephen has had a number of affairs (aware of three). Gene Matthey believed Stephen had his first affair some time after Chloe's death. Carol and Stephen were separated at the time.

The marriage seemed OK but Stephen was always checking on Carol - by checking the car speedo. [This appears to have occurred at the time of the two children, Dylan and Jacob.]

There was a falling out between Mum (Christine Nuckey) and Stephen. Carol supported Stephen.

Phillip Matthey (father of Stephen)[114]

At the time of Joshua's death Carol had moved out for a few days. She may have been renting a place at Lara. There may have been some disagreement between she and Stephen.

David Matthey (Stephen's brother)[115]

He saw Stephen and Carol from time to time at his parent's Bannockburn farm and noticed nothing abnormal about the relationship. He never saw them mistreat each other.

Stephen Matthey (Carol's husband)[116]

He and Carol were a very happy couple. They separated only once for about a week two months ago [this would be July 2003] but that was all sorted out.

Darren Spiers (first cousin of Stephen)[117]

Carol and Stephen's relationship was on and off. He believed Stephen had played up on her once, but could not say when.

Stephen and Carol were very reserved people who never spoke about their private lives.

Jodie Matthey (wife of Gene Matthey)[119]

She had no knowledge of the state of the relationship (at the time prior to the death of Jacob).

After Jacob's death, Stephen took some time off work. At the time of Carol's pregnancy and the birth of Shania and Chloe, Carol and Stephen's relationship was normal. At the time Joshua died, Carol and Stephen were separated. She was living with the kids in Corio. She believed they had separated because Stephen "had strayed". The night that Joshua died they got back together and stayed at their house in Herne Hill.

Since Joshua's death Stephen has had two liaisons. Carol knew about one of them. Carol was devastated by Stephen's unfaithfulness. She had a mixture of emotions resulting from the loss of her children and her deceitful husband. Stephen wasn't very supportive for quite some time after Joshua's death. They were separated for about a month in about October [2002]. Carol and the kids lived with her (Jodie). Carol was seriously contemplating divorce. Carol has been a devoted wife to Stephen but he has not been so devoted to her. She needs love in her life and was not receiving it from the person she loved - all through the marriage.

Stephen and Carol's relationship was alright at the time of Jacob's death. At the time of Chloe's death the relationship was OK - they were still happy together. At the time Joshua died the couple had separated but were still speaking. Carol was living at Lara and Stephen was still in the family home. Carol moved back in with Stephen not long after Joshua's death. When Shania died Stephen and Carol were together, their marriage was back on track and going OK.

Carol and Stephen were not an affectionate couple but they did seem happy. [Ms Taylor met them in 1999 and, therefore, after Jacob's death.] When Chloe was born Carol and Stephen were happy. Shortly prior to giving birth to Joshua Carol confirmed that Stephen was having an affair. Subsequent to Joshua's operation Carol commented that Stephen wasn't coming home much; he was always working at the Bannockburn farm. She just seemed to cope with the problem.

A couple of months after Joshua died, Carol told Geraldine that Stephen was having another affair. Carol seemed to grin and bear the situation.

Carol often said she would leave Stephen. She did walk out on him once [no date given] but came back within five to seven days.

About four days prior to Shania's death, Carol, Stephen and the children (Dylan and Shania) visited. Everyone seemed very happy.

As for Carol and Stephen's relationship they didn't seem to do very much together, they seemed to do their own thing.

After Chloe's death, Sandra (Cossans) was concerned about the tension in Carol's relationship with Stephen.

Hilary Robinson (maternal and child health nurse)[124]

Carol never really discussed her personal life but on one occasion said that Stephen wasn't happy with her being pregnant with Shania.

I have endeavoured to set out the evidence of the marital relationship contained in the depositional material. For completeness I should add that on the form enrolling Shania in One World for Children on 28 February 2003, Mrs Matthey has shown different addresses for herself and her husband. In the record of interview[125] she concedes that the couple may have been separated at that time.

As for other separations the accused states in the record of interview that she and the children stayed with her sister Sandra (Cossans) for a couple of weeks after Chloe died[126] and that after Stephen had an affair (when she was pregnant with Joshua) she and the kids stayed with Jodie Matthey for about a month. Mrs Matthey appears to have agreed with the proposition that the couple were separated when Joshua died[127] but asserts that they were in the process of reconciling. Mrs Matthey also agreed that there had been separations during the previous four years[128] but claimed that there had not been many of them.[129] In general, Mrs Matthey sought to put the most favourable gloss on her association with Stephen Matthey.

266 I have summarised the relationship material in a degree of detail with the object of attempting to discern the pattern of events postulated by the Crown. The relationship clearly had a level of instability quite apart from that which may have been engendered by the deaths of the children. It seems clear that Stephen Matthey had affairs which Mrs Matthey found distressing. Further, it appears that Mrs Matthey was unhappy about not receiving the love, support, and companionship from her husband that she desired. At one stage he had indicated that he only stayed with her because of the children. Mrs Matthey left the matrimonial home on at least two, if not more, occasions, and was, at one stage, apparently contemplating divorce. It may be accepted that her husband's affairs were a significant factor in the separations.

267 Insofar as it was the Crown case that the deaths (or ALTEs) were designed to bring Stephen home, the evidence does not disclose any such pattern. Indeed, on the current state of the evidence, it was Carol Matthey who separated from her husband. Moreover, on the depositional material, only one death, that of Joshua, occurred when the couple were actually separated.

268 As for Stephen taking time off work after any death, this appears to have occurred after the deaths of Jacob and Chloe. On the latter occasion, the material indicates that Carol Matthey did not welcome this situation.

269 In summary, the Crown separation thesis does not appear to be borne out by the evidence.

270 Further, there is no discernible link in the evidence before the Court between the dysfunctional nature of the marriage in particular, the stresses occasioned by such factors of Stephen's workload, his affairs, and general lack of affection, and the death of the Matthey children. Moreover, there is no foundation for the contention that the killings were designed to win back Stephen Matthey's love and affection. Put another way, the material does not permit the drawing of an inference that the exigencies of the matrimonial relationship were the trigger, or cause, of Carol Matthey killing her children. Whilst there is a sequence or series of events, no pattern of events emerges. That is not to say that specific incidents may not be linked to a particular death.

271 In these circumstances the evidence would appear to largely fall into the category which attracted the disapproval of Callinan J in Gipp's case. It is prejudicial and lacks the relevance which the Crown seeks to attribute to it. Given this view, and in the absence of submissions linking a specific incident to a particular death, it is not necessary, at this stage, to examine the defence objections to particular aspects of that evidence.

272 It may be that aspects of the relationship evidence could be made relevant to the demise of a particular child but I would need to be persuaded by further argument on that issue.

273 Another aspect of the Crown case is that the accused did not value the deceased children. It is put that any child born after Dylan was unplanned and unwanted. This is said to be borne out by the accused's active pursuit of contraception.

274 The attitude of Mrs Matthey towards the deceased children pre birth, during life (including at the time of any ALTEs); at the time of death; and post death prima facie constitute circumstantial facts relevant to the major fact in issue namely, whether Mrs Matthey murdered her children.

275 The evidence of Mrs Matthey's desire for the provision of contraception is recorded in the Outline of Prosecution Submissions:[130]

1. It is submitted that there is a significant factor in the Crown case against the accused that each of the children of the accused were the result of unplanned pregnancies.
2. From the time Dylan was born the accused actively pursued contraception as shown as follows:

(ii) 1 September 1998 - issues of oral contraceptive tablets Dr Peter Wolfe (p.1517);

(iii) 27 September 1998 - Dr Soo - morning after pill (p.1517);

(iv) 9 December 1998 - oral contraceptive script issued (p.1517);

(v) 29 January 2000 - Depo Provera injection after discussing contraceptives and IUD (p.1517);

(vi) 1 October 2000 injected Depo Provera (p.1518);

(vii) 1 April 2001 - Depo Provera injection (p.1518);

(viii) 1 November 2001 - Accused expressed unhappiness with unplanned pregnancy (14 weeks pregnant with Joshua) (p.3654);

(vix) 20 August 2002 - Accused telephoned Dr Currie - discussion of hysterectomy (p.4303).

1. The history is necessarily considered in conjunction with the deaths of the children. Jacob's date of death was 8 December 1998 and the accused discovered she was pregnant with Jacob when she attended Dr Grace for contraceptive [sic] on 4th of June 1997.
2. Chloe died on 27th November 2000. The accused discovered she was pregnant again on the 1st of March 2000 after she had attended Dr Grace for Depo Provera on 29 January 2000.
3. Joshua died on 10th of July 2002. The accused was noted by Ms Robinson, at page 3654 to be unhappy about the unplanned pregnancy and was noted to have made negative comments regarding the infant after the birth at the Geelong Hospital, at page 2048.
4. Shania's death on 9 April 2003. The accused attended her GP twice in September 1998 for contraceptive [sic] and once in December 1998 the day after Jacob died.
5. It is submitted that all this evidence is directly relevant to the accused's relationship with each of the victims of her alleged conduct.
6. It is submitted that it is a common feature of the death of each of these children that they were unplanned pregnancies and indeed unwanted pregnancies. It is submitted that this is a relevant feature to be considered in relation to all of the deaths and is relevant in relation to each particular pregnancy.
7. To consider the accused's attitude to the children in the absence of this information is to put forward the totally inaccurate and unrealistic portrait of the relationship with the accused with each of the children. There is nothing prejudicial per se in relation to the evidence sought to be led and it is of significant probative value. Expert evidence will be led where qualified and relevant.

276 These submissions need to be placed in context. Hilary Robinson, as I have previously mentioned, was the maternal and child health nurse who attended Mrs Matthey after the birth of all her children. According to that witness Mrs Matthey said at the 14 week stage of her pregnancy with Joshua that she was not happy about the unplanned pregnancy but that termination was out of the question. Subsequently the Geelong Hospital nursing notes of 5 April 2002 (six days after the birth of Joshua) record: "Mother very quiet, says negative comments about baby". No further detail is provided.

277 However, it is to be noted that Ms Robinson, in concluding her statement,[131] remarked:

My perception was that some of the pregnancies were unplanned, however, Carol formed a sufficient maternal bond with the children to provide adequate care. It was an undemonstrative type of care but at the same time it appeared adequate.

278 Indeed, in cross-examination, Ms Robinson added that the accused behaved appropriately with each of her children and was interested in their health. Further, she observed no signs of mistreatment or neglect.[132]

279 It may be useful if I summarise the depositional material concerning each of the children.

Carol seemed happy with kids. [Dylan and Jacob.] (Alicia Knuckey).

Carol happy with the birth of both Dylan and Jacob. (Stephen Matthey).

Carol seemed happy to have had Jacob. (Sandra Cossans).

Both self and Carol were happy after the birth. (Stephen Matthey).

When born both Stephen and Carol seemed happy and content. (Jodie Matthey).

Carol seemed happy to have had Chloe. (Sandra Cossans).

Carol seemed quite happy when pregnant with Chloe and both Stephen and Carol were happy with her birth. (Geraldine Taylor).

After Chloe was born Carol seemed happy. (Dorothy Minett).

Carol was disappointed to learn in April [2000] that she was pregnant again whilst taking the contraceptive injection Depo Provera. She did not want another pregnancy so soon. (Nerida Mulvey).

Carol became pregnant again some months after Chloe's death. Again Carol was happy about being pregnant but was even more concerned now (about the wellbeing of the child).

When they [Carol and Joshua] were discharged from hospital Carol visited often. She seemed tired but happy. (Jodie Matthey).

Carol became pregnant with Joshua a few months after Chloe died. She seemed happy but apprehensive. (Geraldine Taylor).

During her pregnancy with Josh she [Carol] seemed fine. She seemed happy. After Josh was born she was also fine. She seemed happy and content. (Shirlene Barfoort - friend).

[Carol] seemed happy and confident with [Joshua] (Leona Daniel - social worker).

Carol happy enough about the birth (Stephen Matthey).

Very soon after Jacob's death Carol became pregnant again. She was happy about this but was concerned the same thing might happen to this child. (Jodie Matthey).

Carol seemed happy to have had another baby. (Sandra Cossans).

Carol seemed happy during pregnancy. After Shania was born Carol seemed happy and was coping fine with Shania and Dylan. (Dorothy Minett).

During a phone conversation with Carol on the morning of the 8th of April 2003 I could hear a child in the background absolutely screaming. It sounded like a full on tantrum. Carol didn't acknowledge the child but continued talking in a calm normal voice. (Lisa Ratcliffe).

280 The depositional material also contains a number of comments, in general terms, about Mrs Matthey's parenting of the children.

She [Carol] often yelled at the kids [Dylan and Shania] daily. Heard her slamming doors. She was abrupt and demanding and often became angry very quickly. I have not seen her physically mistreat the kids but the way she shouted at them was frightening at times. (Jill McCarthy - neighbour).

Carol was good with her parenting of all the children. She would definitely not yell at the children daily; be very angry quickly; or be slamming doors. (Dorothy Minett - neighbour).

The little girl and her brother [presumably Dylan and Shania] would play in the street out the front a lot and I would often hear their mother screaming at them from their house ... like she was always angry with them. (Julie Cassidy - neighbour).

Carol was an excellent mother (observed up until the time of Jacob's death). She always kept the two boys clean and looked after them very well. She seemed to bond with them normally. (Christine Knuckey).

Even though the children weren't planned, Carol accepted them and she seemed to cope with them. (Heather Knuckey).

Carol always seemed happy to be pregnant and seemed happy to have the kids around her. (Norma Matthey).

[Carol] seemed happy when each of her children were born. (Gene Matthey).

I have never seen Carol or Stephen mistreat any of their children. (David Matthey).

Carol always seemed happy with her kids. She always kept them clean and interacted well with them whenever I saw her. (Marcia Cooper - partner of David Matthey).

I don't think that there is anything wrong with the way Carol and I have looked after our children. Carol has been a good mother. (Stephen Matthey).

[Carol] never gave me the impression that she was not coping with looking after her children. She appeared to be a good parent. I never saw her mistreat any of her children. (Cheryl Guy).

I have never seen [Carol] aggressive towards her children or smack them. (Jodie Matthey).

On 22 August 2002 visited Carol just before dinner. She was yelling at the children [Dylan and Shania] when the witness arrived but things settled a little with the evening meal. The witness said[133] that in the circumstances this should not be interpreted as something of concern. (Leona Daniel).

... Carol always presented as a competent mother. Her children always appeared to be well cared for and were brought to the surgery when they were genuinely ill. (Dr Cindy-Lou Nelson).

[Carol] always presented appropriately with the children. They have appeared well cared for. [Consultations between 2/4/01 and 24/9/02.] (Dr Andrea Currie).

281 The next aspect of the relationship evidence involves the observations of Mrs Matthey by ambulance officers attending the children and observations of Mrs Matthey's reaction to their respective deaths. A major defence objection to portions of this evidence is that it relates to the accused's demeanour. It was submitted that to draw inferences as to the true nature of the relationship between the accused and her children from demeanour carried with it a high risk of injustice.

282 Evidence of demeanour is common place in the adversarial system. Such evidence may, for example, involve opinions as to the emotions of happiness, sadness, or anger, in the individual observed. Despite the subjectivity of such assessments, observations of simple emotions may present little difficulty and be regarded as generally reliable. However, when the demeanour of the individual observed is said to evince more complex states of mind such as indifference, callousness, or, more significantly, that of guilt, there may well be a danger in acting upon demeanour alone as a reliable indicator.

283 The Courts have recognised the caution with which assessments of truth or falsehood of the evidence of a witness based upon appearance, must be approached.[134]. Indeed, the employment of demeanour in determining consciousness of guilt has been the subject of critical comment in two recent Victorian Court of Appeal decisions.[135] However, in general terms, the evidence sought to be led by the Crown is not of that type. It is part of the circumstantial case and is aimed at enabling the jury to assess the accused's attitude towards her children. Nonetheless, demeanour evidence does possess potential shortcomings which require it to be approached with a measure of caution. First, the observer will frequently be unaware of the personality characteristics of the individual being observed and assessed. Secondly, inherent in such evidence, is an assumption that there are a set of normal reactions to particular events. On the contrary, (to take an example) the witness Leona Daniel, who was the social worker with the Barwon Paediatric Bereavement Program Inc, deposed to there being no normal way to deal with grief and of people having many and varied reactions to it. Thirdly, a subjective interpretation of the accused's conduct by the witness is necessarily involved.

284 In examining the observations of the paramedics who attended the ALTEs or death scenes; and the observations of others as to Mrs Matthey's reaction to the deaths of her children, one should not lose sight of those limitations.

285 Additionally, in the depositional material, there are several comments about Mrs Matthey's personality which may impinge upon assessment of her by third parties. They are as follows.

Carol was a very private person ... quiet and reserved and not a garrulous, gushy sort of person (Geraldine Taylor) (1046/47).

Carol is a fairly quiet reserved sort of young woman (Dorothy Minett) (1153).

Carol is a quiet person and keeps to herself sometimes (Heather Knuckey).

Carol Matthey was a shy and reserved young woman. (Nerida Mulvey) (1197).

Carol was a very shy and reserved person (Leona Daniel) (1227).

In my dealings with Carol I would describe her as quiet, shy, private, rarely initiating or extending conversation on any topics ... She usually had a very calm demeanour, usually had a smile but showed little emotion. (Hilary Robinson).

Carol always was quiet and reserved and declined to discuss any family and mental issues, or the deaths of her children. (Dr Cindy-Lou Nelson).

Carol Matthey presented as someone whom it has been difficult to get to know well and often had poor eye contact. She has been reluctant to discuss issues concerning her depression mental situation or the death of her children. (Dr Andrea Currie).

Always found Stephen and Carol to be very reserved people who never spoke about their private life. Carol rarely opened up. There had never been a conversation about her life and problems. (Cheryl Guy).

286 Having established a context, I will, as indicated, deal with the observations of the paramedics who attended the various deceased children.

Anthony Clarke on arrival, encountered persons (who he believed to be the parents) seated on the front porch deck having a cigarette. In response to the question of whether an ambulance had been called, and whether there was a child at the address, the female answered yes and stated that he was down the hallway in his cot. She also stated that he was blue and not breathing properly. They then walked down the hallway to the cot.

This statement, made five years after the event, differs somewhat from that of the witness' colleague, Anthony Mandic who describes the baby lying supine on a couch and the mother giving a more detailed account of the circumstances of the child. This included being told by the mother that she had moved the child from the cot to the couch to await their arrival. She had placed the child on its back.

In her record of interview (444-448) Mrs Matthey asserts that she was inside with the child and raised the possibility that it may have been Stephen and one of her sisters to whom Anthony Clarke was referring.

Generally the two adults were very calm, controlled and basically devoid of any emotion at all.

Mr Mandic had no recollection of how Mrs Matthey reacted during this time but had not noted anything unusual.

Paramedic Ian Russell could recall no specific conversation or interaction with the child's parents.

When Peter Jackson told Mrs Matthey that the child was unlikely to survive she appeared to understand the information and was quiet and withdrawn. There was no outflow of emotion. Another paramedic in attendance, Bernard Malone could recall nothing in the mother that stood out as unusual at the time.

Laurence Blick in cross-examination (303) said that his observations of Mrs Matthey in the Safeway carpark were that she had real concern for the health of her child. Another paramedic Jennifer Teal described the mother as upset and crying but not hysterical, whilst her colleague, Peter Jefferson stated that the mother was in obvious distress and crying.

Wayne Watson, who was involved in Mrs Matthey's call on the 8th of April, expressed the opinion that her voice seemed very calm for the situation that she was in.

Laurence Blick stated that the child became very agitated and upset with any contact made by the paramedics, but appeared to be settled and calm while being nursed by the mother. Warren Cato, a colleague, stated that when they arrived the child was clinging to her mother and didn't want to come near them or let go of the mother. He stated that Carol didn't seem upset but she seemed apologetic at having called the ambulance. She said she got worried when the child hurt herself and wanted to call the ambulance to make sure the child was alright.

The paramedic Benjamin Fisk stated that whilst they were attempting to resuscitate the child the mother was sitting quietly and watching. He recalled that she was upset. A colleague, Tracey Smith, described the mother as crying whilst observing them. En route to the hospital, Mrs Matthey was talking quietly on her mobile phone and crying at the same time.

By contrast, Martin Butson, who attended the scene as part of the MICA Unit, described Mrs Matthey as controlled, not upset or crying, and quiet. He could recall no conversation with her and, in cross-examination (364-5), he stated that whilst he didn't recall Mrs Matthey crying, he did not dispute Ms Smith's account that she did so.

At the Geelong Hospital, Dani McNamara, a Clinical Nurse Specialist, described Mrs Matthey as saying "This can't be happening again"; sitting on the ground in the Ambulance Bay with her head in her hands, and later crying quietly with her head down.

Dr Bartley, the Emergency Physician on call on 9 April, deposed to Mrs Matthey being tearful and disbelieving that another child had died.

288 The final stanza of the evidence of Mrs Matthey's relationship to her children, concerns her reaction to their deaths. Once again I will endeavour to summarise the evidence as it pertains to the individual children and then generally.

Carol told her in time that she had lost a child [Jacob] to SIDS. Carol showed her a little plaque with Jacob's foot and hand prints that she got made after his death. (Nicole Vanderpol).

The night before Jacob died, Carol and the family visited. Jacob appeared happy and normal and Carol seemed in good spirits also. ... At the Geelong Hospital [the morning Jacob died] Carol was too upset to talk. (Christine Knuckey).

Stephen and Carol seemed devastated by Jacob's death. (Norma Matthey).

Stephen and Carol were supportive of each other when Jacob died. (Gene Matthey).

Stephen was totally devastated at Jacob's funeral ... Carol was also very upset but appeared less emotional than Stephen. (David Matthey).

... Carol was upset after Jacob's death. She used to see a woman who was a SIDS counsellor every week. He [Stephen] was also upset but didn't have any counselling. They supported each other as much as they could. (Stephen Matthey).

At the flat when the ambulance officers were trying to revive Jacob, Carol and Stephen were both extremely upset and crying. ... Both Carol and Stephen were upset and in shock after Jacob's death. (Jodie Matthey).

[After Jacob's death] Carol seemed very upset. She didn't want to talk much ... A lady from SIDS came to see her a lot. [Carol] wanted to have photos of Jacob around in the house. (Sandra Cossans).

During the day [before Chloe's death] Chloe was very unsettled and screaming for the most of the day. Carol spent most of the time nursing her and trying to settle her but nothing worked. Other friends tried to calm her but nothing worked. Carol seemed stressed out. Arrangements were made, in consultation with a chemist, to give the child some Panadol and it seemed to settle her down a little bit ...

The following day there was a phone call from Carol. She was at the Geelong Hospital and said that Chloe had died. She was very upset and crying. The following day Carol showed the witness Chloe's cot and said that she had put her down for an afternoon sleep and later found her not breathing. Carol was upset when she talked about it. (Nicole Vanderpol).

Carol and Stephen seemed even more upset after the death of Chloe, I think because it was the second child they had lost. (Norma Matthey).

Carol and Stephen were very upset on my return (a week after the funeral). (David Matthey).

On arrival [at Carol's] found two ambulances there and Carol was crying hysterically ...

Carol was distraught after Chloe died and appeared lost ...

Carol seemed very upset after Chloe's death - think even more so after the death of a second child. (Sandra Cossans).

[Visited Carol two days after Chloe died]. Carol looked lost but she wasn't crying. She spoke normally but avoided the subject of Chloe's death. ... She just didn't want to talk about it. (Geraldine Taylor).[136]

After the third death Carol started drinking quite a bit. (Heather Knuckey).

The death of Joshua seemed to affect Carol and Stephen worse than the other two ... They were very upset by his death. (Norma Matthey).

Carol and Stephen were both very upset by Joshua's death. (David Matthey).

[Attended at Geelong Hospital]. Carol came and told them that Joshua had died. She was crying at the time and looked in shock. ... During discussions with Carol she stated that she was having difficulty accepting Joshua's death and it was even more difficult to accept because she and Stephen were separated when it happened. She often asked why this had to happen to them. (Jodie Matthey).

[On the morning following Joshua's death saw Carol at her house]. She was in bed extremely upset, she was crying and wouldn't speak, she just lay there. (Geraldine Taylor).

The night Joshua died Stephen came over and said: "It's happened again". The witness went over and saw Carol who was sitting out on the back doorstep. Carol didn't speak, she was just starting at the sky. ...

Carol seemed to be in a daze after Joshua's death. The witness did not recall how long she was like this. (Dorothy Minett).

On 11 July 2002 the witness rang the Matthey home. Stephen said Carol did not want to speak to anyone, she was upset and wanted to be left alone.

Spoke to Carol by phone on 15 July 2002. She seemed very depressed, speaking in a flat voice. (Leona Daniel).

Carol went on to say that she found [Shania] the next morning. She was teary when she was talking about this ...

About a month after Shania died [Carol] seemed to be coping well. She didn't appear devastated. She never cried. She seemed to be getting on with her life. There was one time she got teary, that was when she was talking about not being able to put Shania to rest. [Apparently this was because of Coronial procedures.] (Emma Matthey).

[On the morning of the death] Carol came out with an ambulance officer. She had a staunch look with a tear running down her cheek. Next day [no time given] saw Carol sitting on the verandah having a drink and talking on her mobile phone in a normal tone with a smile on her face. The witness went over to Carol and embraced her. She said: "I'm sorry for your loss Carol, if there's anything I can do don't hesitate to ask". Carol said something that the witness did not catch. She then said: "I'd offer you a drink but Stephen has drank them all". She said: "I didn't come over here for a drink, that's okay, I'll go home". When she was speaking to Carol she appeared normal, relaxed or not phased at all. There was no emotion at all. She was acting like nothing had happened. (Jill McCarthy).

[The day after Shania's funeral] Carol was chatting with some people out the front. I saw that she was laughing with these people. (Julie Cassidy).

After Shania's death Carol and Stephen were very upset. Shania was older and they had her longer. Stephen was especially upset. (Norma Matthey).

Carol rang Stephen who said he had to go because Shania had stopped breathing. The witness then tried to ring Carol a couple of times but she was crying and the phone cut out. (Phillip Matthey).

Carol and Stephen didn't want to delay the funeral arrangements any longer than was necessary. Both were quite emotional and annoyed that the Coroner's Office were taking their time. (David Matthey).

After they saw Shania in hospital and said their goodbyes and went home, the Homicide Squad turned up. After the Homicide Squad left Carol and self were too upset to talk about it. [That is the circumstances of Shania's death.] (Stephen Matthey).

On the morning Shania died received a phone call from Carol to tell Stephen to come home because Shania had died. Carol seemed a bit upset and was crying a little bit. (Darren Speirs).

On the morning of the death rang Carol at the hospital and asked if there was anything that she could do. Carol said: "If I could bring Nia [Shania] back". Asked what she meant, Carol said Shania had died. Carol was crying the whole time of the conversation. (Cheryl Guy).

When she arrived at the hospital, she saw Carol crouched up against a brick wall in the ambulance loading area with her head down. Carol was crying and just looked at her. (Jodie Matthey).

The next morning Carol found Shania dead. Carol didn't cope well with Shania's death. The witness thought it was because Shania was older than the others. (Sandra Cossans).

When Carol told her that Shania had died she was extremely upset. She went through the intense heartbreak and grief that the witness had seen in her on other occasions. (Geraldine Taylor).[137]

On the night of Shania's death the witness went over to see Carol. She put her arms around her. Carol didn't say anything. They both broke down and cried. (Dorothy Minett).

On the afternoon of 9 April 2003, the witness had a message from Carol to call her. She could tell in her voice that she was upset. Returning the call she was told by Carol that Shania had died. She and Carol were both upset and crying. (Shirlene Barfoort).

On 9 April 2003, sat with Carol during the police interview. She presented with "flat affect" that is, although she was tearful at times, she appeared to be still in shock, very dissociated from the tragedy of the child's death, or in deep depression ... At the funeral Stephen was very distraught ... and Carol was very supportive of him. Carol herself seemed to be tearful but more in control of her emotions than Stephen.

The witness described Carol as being in the early stages of grief where shock, disbelief, and anger are interchangeable at any time. (Leona Daniel).[138]

289 In relation to the children generally, there are a number of comments about Carol Matthey's reaction.

When each of the children passed away [Carol] was sad and grieving. There was nothing about her behaviour that struck the deponent as being cold. (Gene Matthey).

Carol seemed a little bit upset at the funeral and was crying a little but Stephen was more upset than her. (Darren Speirs).

In discussions with Carol after Shania's death, she had repeatedly questioned why this could happen to her. How she could lose four children. They [Carol and Stephen] thought of all sorts of possibilities, including genetic problems, heart problems, asthma, and even the types of formulas the kids were on. (Jodie Matthey).

As a general proposition, Carol was absolutely heartbroken after each child died.

Carol had photographs of each of the children and various things that reminded her of them. (Sandra Cossans).[139]

Carol and Stephen's grief responses following the deaths of Jacob and Chloe were comparable to other SIDS families who have had a similar experience. (Nerida Mulvey).

Carol showed little outward emotion in relation to the deaths of her children, other than looking sad. (Hilary Robinson).

... at Glen's funeral [Glen being Stephen Matthey's brother] Carol was so distraught that she could hardly walk she was upset at the funerals of Chloe, Joshua and Shania but nowhere near as upset as she was for Glen's. (Nicole Vanderpol).

290 Apart from a few exceptions, to which I will refer in a moment, I regard the evidence of Mrs Matthey's relationship to her children (including that characterised as demeanour evidence) to be prima facie admissible. What weight individual parts of it may be accorded is another matter. Importantly there is a substantial body of evidence that presents a picture of a woman who was a concerned, caring, and loving mother during the children's lives, and a distressed and grieving one when they died. In short, it renders the Crown contention that Mrs Matthey had little regard for the worth of her children and a resulting callousness towards them as problematic.

291 Whilst the evidence of Mrs Matthey's relationship with an individual child or with her husband at a particular time could notionally be relevant as providing a motive or reason for the killing of that child, the factual material would not appear to assist the Crown in this regard. Accordingly, whilst prima facie admissible, this evidence may ultimately founder on the basis that it can be seen to possess minimal, if any, probative value.

292 Before leaving this topic I should, for completeness, deal with specific defence objections to portions of the relationship evidence. I can do so in short compass.

293 The relationship/demeanour evidence I do not consider to be admissible is as follows.

294 The evidence of the witness McCarthy that Mrs Matthey, on the day after Shania's death, was observed to be smiling while talking on her mobile phone. There are a myriad of reasons why a person, even a grieving one, may smile. Without the benefit of any context this evidence has little probative value but a high prejudicial potential.

295 The evidence of the witness Cassidy of observing Mrs Matthey on the day after Shania's funeral chatting with an unknown group of people at her house and laughing with them. Again, there are manifold reasons for a person to laugh - nervousness, relief, the desire to secure approval, are three that immediately spring to mind. Devoid of context this evidence also has little probative value and is capable of having a highly prejudicial effect.

296 The evidence of the witness Ratcliffe of Mrs Matthey calmly speaking on the telephone on the morning of 8 April 2003 and ignoring a full blown tantrum (presumably that of Shania) does not appear to me to have sufficient relevance to warrant its admission into evidence.

297 In the statement of the witness Vanderpol there is a hearsay reference to Mrs Matthey having an affair with Glen Matthey (her husband's brother) who committed suicide in October 2002. As I noted the witness ventures the view that "... at Glen's funeral Carol was so distraught that she could hardly walk she was upset at the funerals of Chloe, Joshua and Shania, but nowhere near as upset as she was for Glen's".

298 The Crown wish to lead this evidence (although not about the affair) to draw a distinction between the accused's response to this death and her varying responses to the deaths of her children.

299 I have already adverted to the limitations of demeanour evidence. The concept of "comparative demeanour" involving, as it does, different times, places, and circumstances, raises the inherent dangers of this type of evidence to a new level. Moreover, the prejudicial effect of such evidence is manifest. Accordingly, I would not permit this evidence to be led.

300 The defence also objected to the evidence of the witness Connors that Mrs Matthey was apparently calm and composed when informing her by telephone of Shania's death (seemingly on the day of that death). Whilst this evidence may not have great probative value, it is, nonetheless, admissible in my view.

301 Obviously, in consequence of the exclusion of a number of pieces of evidence, and the arguably doubtful probative value of much of that remaining (which may well become the subject of further exclusionary rulings) it will be necessary for the Crown to reassess the viability of this prosecution.

I certify that this and the 89 preceding pages are a true copy of the reasons for ruling of Coldrey J of the Supreme Court of Victoria delivered on 12 October 2007.

Associate Professor of Paediatrics, Geelong Hospital

Enlarged white cell blood count, enlarged spleen and liver which were detected on Jacob were likely to result from infection rather than asphyxia.

Of the view that Jacob experienced acute encephalopathic process, probably caused by an undetected infection, but possibly resulting from an acute asphyxial episode.

Observed that Jacob was crying continuously but found no abnormality.

Observed that Jacob was irritable and grizzly, would not settle, was not seeing properly, failed to smile, didn't fix on his face and follow. Discerned minor hepatosplenomegaly (enlargement of liver and spleen).

Dr Hopkins - Jacob neurologically normal. Dr Hewson - encephalopathic due to metabolic abnormality (being investigated on 8 Dec 98 when Jacob died).

Plagiocephaly [strong asymmetrical cranial deformation].

Had he known about the prior ALTE, diagnosis of SIDS may have been qualified, however ultimately diagnosis of SIDS reasonable given presence of significant inflammation because would not preclude SIDS.

Anatomical findings re Jacob are often seen in infant deaths from all causes.

Attribution of SIDS requires full clinical history and a thorough death scene investigation, the latter being absent in Jacob's case.

Most likely diagnosis SIDS but previous ALTE increased the possibility of non-accidental injury.

An ALTE always raises suspicion as to non-accidental suffocation of every child who dies of SIDS, despite there being no evidence of physical harm and this applies to Jacob.

Unclear whether Dr Beal considered Jacob's enlarged liver and spleen and raised white blood cell count, appeared to dismiss these features as irrelevant.

Cause of death: Ultimately affirmed SIDS as cause of death without any qualification.

ALTE of 30 October was examined and determined to be unexplained.

Refers to elevated blood count following the event, but no mention made of his enlarged liver and spleen and does not discuss their possible significance.

Does not refer to possible causes of ALTE suggested by Drs Hewson and Hopkins.

Due to the ALTE, considers the death to be unexplained rather than SIDS.

Disagreed with Dr Campbell's autopsy finding of tracheobronchitis and bronchiolitis - although the difference was in degree of acuteness and significance.

Clinical practice was in Paediatric Forensic Pathology

Reports examining circumstances surrounding the deaths and autopsy findings dated 7 March 2006

Unexplained ALTE, sudden unexpected death, blood in the nose at death, pulmonary haemorrhages plus absence of risk factors for SIDS led her to conclude that the death was not due to SIDS but consistent with suffocation.

Agreed that up to 15% of deaths of children less than 12 months but more than one month are unexpected / unexplained. Also appeared to give that figure for child deaths over 12 months.

Agreed that medical knowledge was improving and there was ongoing research into genetics and metabolic disorders.

Disagreed with Dr Campbell about level of inflammatory crisis in airways and dismissed the view that the enlarged spleen and liver discerned upon admission to hospital on 30 October was caused by infection. Attributed the rise in white blood cells to an asphyxial episode rather than infection.

Cause of death: acute asphyxial episode was the cause of the encephalopathy and the Geelong Hospital Doctors all missed this.

Disavowed a number of SIDS risk factors which had been refined to pre-natal smoking, with passive smoking and sleeping in the prone position.

Sought to place Jacob (7 mths) outside of the SIDS age group stating children older than 6 months would not be classical SIDS and 8 months was the big cut off.

Interpreted "mucoid faintly bloodstained exudate" (as described by Dr Campbell) as blood from an injury to Jacob's nose at the time of death from suffocation. She determined that it had not come from the lungs, as Dr Campbell had not listed any bloodstained fluid in the trachea or bronchia.

Conceded in accordance with writing of Professor Carolan (SIDS expert) that some of the physical signs of SIDS deaths include frothy blood tinged discharge from the nose or mouth but reiterated that "purge" was a recognised extension of pulmonary oedema.

No information revealed from further post autopsy investigations to enable him to draw inference that the deaths of Jacob, Chloe and Shania resulted from a recognised and identifiable natural disease.

Nevertheless, natural disease process had not been excluded as a direct or indirect mechanism to explain the deaths.

Review of the pathological material had not permitted the inference that any of the children had died as the direct or indirect consequence of deliberate or inadvertent infliction of any injury or dangerous act by a third party.

Examination of the autopsy reports provided no evidence of significant or recent prior injuries to suggest any form of direct physical abuse and there was no anatomical evidence of significant accidental injury.

Professor of Forensic Medicine, Monash University and Director Victorian Institute of Forensic Medicine

Pulmonary haemorrhage in the cases of Jacob, Joshua and Shania is a marker of pulmonary congestion, which is a very non specific finding common in deaths from many causes. He cites Prof. Berry [Professor of Paediatric Pathology] "Pulmonary haemorrhage ... is neither a necessary nor specific marker of deliberate or accidental suffocation".

Felt that Dr Ophoven over emphasised the absence of SIDS risk factors. Notes that the age band of Jacob (particularly), Chloe and Joshua are all consistent with SIDS.

Jacob's features compatible with SIDS were presence of thymic petechial haemorrhages, some upper airways inflammation and otitis media as well as no discernable cause of death.

Petechiae thymus and lungs; pulmonary congestion and oedema; trache-obronchitis; aspiration of gastric contents into lungs; bilateral otitis media (haemophilus influenzae isolated) [being a causative agent of serious pus related infection especially in children] Biotype II.

Cause of death: consistent with SIDS. Diagnosis after full post-mortem examination (x-rays, microbiology, toxicology, metabolic study). Took into account fact that Chloe was second child to die in the family where diagnosis was SIDS. Considered and found no evidence of inherited genetic condition and non-accidental injury.

Finding the child in the supine position raised the possibility of filicide as an alternative diagnosis.

Had Chloe been found prone, she would have given SIDS as cause of death without any qualification.

Disputes Dr Campbell's finding of SIDS and conclusion that there is no evidence of non-accidental injury. Conclusion draws on circumstances beyond Chloe's death, in particular, Jacob's death and unexplained ALTE.

Disagreed with Dr Campbell's finding of tracheobronchitis although there was some inflammation observable, it seems it was a matter of degree.

Agreed all genetic and metabolic diseases had not been documented and froze a portion of the child's skin for future examination if necessary.

Agreed under cross examination that he determined Chloe's death was undetermined rather than SIDS although he had no medical reason, it was simply because of the earlier death.

Clinical practice was in Paediatric Forensic Pathology

Reports examining circumstances surrounding the deaths and autopsy findings dated 7 March 2006

Presence of pulmonary [parenchymal] haemorrhages at autopsy was important, as was asserted lack of risk factors for SIDS. Other factors taken into account were that Chloe was with her mother before she died, there was an unexplained and unexpected death of more than one sibling, and that the previous death had also occurred in the presence of the mother.

Cause of death: despite all of the above which lead to the conclusion of "homicidal suffocation" the outcome was undetermined.

Agreed that the petechiae in the thymus and lungs, pulmonary congestion and oedema and age range of the child were all consistent (or to be seen) in deaths labelled SIDS.

Disagreed with Dr Campbell's autopsy finding of tracheobronchitis, she disagreed that there was evidence in the microscopic slides of infection in the airway. The amount of inflammation / inflammatory cells was within reasonable range. Nevertheless she would not criticise his histological conclusions, agreeing that a degree of tracheobronchitis is often found in infants whose death is attributed to SIDS.

Agreed that three of the autopsy findings (petechiae in the thymus and lungs, pulmonary congestion and oedema and a degree of tracheobronchitis) were frequently found in infants that die from SIDS.

She said the lack of petechial haemorrhages on the thymus and lungs made this an atypical or borderline case of SIDS but she would prefer to call it "unexpected or unexplained".

The factors preventing a diagnosis of SIDS are that there was more than one sudden and unexplained death and that it is (in her view) consistent with homicide in another of the children.

Accepted that pulmonary haemorrhage is present in 2/3 of infant deaths but said it is also frequent in homicidal suffocation and is sufficient to suggest foul play. Disagreed with Prof. Cordner who said there was no significant pulmonary haemorrhage, just congestion and patchy pulmonary oedema.

Agreed there were no macrophages or siderophages [macrophages containing granules of iron containing pigment, especially hemosiderin] in the lungs indicating that there had been no previous bleeding into the lungs.

Cause of death: "... 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 SIDS".

No information revealed from further post autopsy investigations to enable him to draw inference that the deaths of Jacob, Chloe and Shania resulted from a recognised & identifiable natural disease.

Nevertheless, natural disease process had not been excluded as a direct or indirect mechanism to explain the deaths.

Review of the pathological material had not permitted the inference that any of the children had died as the direct or indirect consequence of deliberate or inadvertent infliction of any injury or dangerous act by a third party.

Examination of the autopsy reports provided no evidence of significant or recent prior injuries to suggest any form of direct physical abuse and there was no anatomical evidence of significant accidental injury.

Professor of Forensic Medicine, Monash University and Director Victorian Institute of Forensic Medicine

Felt that Dr Ophoven over emphasised absence of SIDS risk factors. Notes that the age band of Jacob (particularly), Chloe and Joshua are all consistent with SIDS.

Hospitalisation of Joshua due to pyloric stenosis, requiring corrective surgery.

Joshua experienced cardiac arrest several hours after surgery. The cardiac/respiratory arrest was secondary to administration of intravenous morphine (requiring intubation and ventilation for 5 days).

Joshua was feeding and developing well. No genuine apnoea alarms. Was mildly pale, tests arranged for this. Blood test taken on the day of Joshua's death (10 July 2002) indicated mild anaemia.

Observed purulent discharge from Joshua's left [sic] ear following an upper respiratory tract infection. Diagnosed otitis media with subsequent perforated tympanic membrane [being the membrane separating the external from the middle ear]. Commenced Joshua on Amoxycillin, a penicillin based antibiotic.

Mild inflammatory changes within the lungs showing low grade infection.

Purulent material within right ear, which when swabbed grew Klebsiella pneumoniae [bacteria responsible for inflammation in the lungs].

Microbiological culture showed positive blood culture for Klebsiella pneumonia. Both strains resistant to Amoxycillin.

The terminal event was not consistent either with SIDS or the infection from Klebsiella or accident.

Cause of death: undetermined. Filicide is the most likely (but unproven) diagnosis. Was prepared to refer to the episode at the RCH which she described as an ALTE.

An ALTE always raises suspicion as to non-accidental suffocation of every child who dies of SIDS, despite there being no evidence of physical harm.

Agreed that Joshua's ALTE at RCH could have been associated with an accidentally administered morphine overdose but maintained the view it was highly unlikely Joshua would die from Klebsiella septicaemia although that was a possibility.

Accepts that respiratory arrest and bradycardia [slow heartbeat] which occurred in the RCH was due to depressant effect of morphine.

Implies (without evidentiary basis) that Mrs Matthey played a part in this event, however does not place any weight on it.

Disagrees with Dr Bourke's assigned cause of death [Klebsiella Septacaemia], in particular the conclusion that infection could cause the sudden death of a child who did not display the clinical features of any significant disease on the day to the treating doctor.

Notes that the finding of Klebsiella bacteria in Joshua's bloodstream may indicate the organism was present as a bacteraemia only, an organism present, but which does not cause significant disease.

Differentiates septicaemia which is a much more significant condition including severe bacterial infection in bloodstream, with clinical features indicating severe toxic state- such as high fever, shock, low blood pressure, rapid or thready pulse, laboured breathing, vomiting.

Had no explanation other than effect of intravenous morphine for post-operative events at RCH. Did not dispute that Klebsiella was cultured from Joshua's ear and blood, rather did not accept it's development into septicaemia.

Cause of death: undetermined - suspicious because of the earlier deaths, negative blood test in morning and activities not according with septicaemia.

Clinical practice was in Paediatric Forensic Pathology

Reports examining circumstances surrounding the deaths and autopsy findings dated 7 March 2006

Noted that Joshua exhibited some of the risk factors for SIDS, being male, premature and within the 2-4 month range although SIDS was not the cause assigned by Dr Burke (Klebsiella Septicaemia) because she regarded it as inconsistent with Joshua's clinical history.

Considered that pulmonary haemorrhage and that Joshua was "well" at the time of death were significant in concluding suffocation.

Also relied on the following - mother was only adult present at time of death, Joshua was coincidentally off apnoea monitor, there had been unexplained and unexpected death of one or more siblings, occurring in care of the mother as well as "suspicious circumstances surrounding his death in the parking lot".

Professor of Forensic Medicine, Monash University and Director Victorian Institute of Forensic Medicine

Review of findings of each of the forensic pathologists - reports dated 28 Jan 2005 and 28 June 2005

Pulmonary haemorrhage in the cases of Jacob, Joshua and Shania is a marker of pulmonary congestion which is a very non-specific finding common in deaths from many causes. Cites Professor Berry, Professor of Paediatric Pathology "Pulmonary haemorrhage ... is neither a necessary nor specific marker of deliberate or accidental suffocation".

Felt that Dr Ophoven over emphasised absence of SIDS risk factors. Notes that the age band of Jacob (particularly), Chloe and Joshua are all consistent with SIDS.

The respiratory arrest at RCH following morphine administration in itself raises questions about Joshua's sensitivity to circumstances tending to suppress respiration such as might occur in SIDS.

CM reported two episodes of apnoea lasting 30 seconds, associated with cyanosis. Advised CM to take Shania to Emergency Dept at Geelong Hospital.

No abnormalities although CM described Shania as being more "clingy" and crying more frequently since Joshua's death.

Carol always presented as a competent mother ... children well cared for and brought to the surgery when genuinely ill.

Cause of death: unclear, but no evidence of non-accidental injury on external examination.

* recent trauma to the body of a type that might be expected to have contributed directly or indirectly to the death

* significant natural disease of a type that might be expected to have contributed directly or indirectly to the death upon macroscopic autopsy.

The only abnormal findings on external examination of the body were a small number of petechial haemorrhages over surface of the heart and lungs and a moderate number present on the sinus.

Eyes and eyelids were unremarkable. Conjunctivae appeared normal. No sub-conjunctival haemorrhage and no petechial haemorrhages over the conjunctivae. No anterior hyphaemia [blood on anterior chamber of the eye].

Nose appeared unremarkable. Nostrils contained some bloodstained fluid.

Lips appeared unremarkable apart from a drying artefact over inner aspect of the mid portion or the upper lip. No damage to upper or lower frenulum. Mouth free from foreign material or food but contained small amount of bloodstained fluid.

Stomach showed no evidence of ulceration of the mucosa. Contained small quantity of slightly bloodstained mucoid material in which no solid food material or drug residues were seen. No milky material present macroscopically.

Drs Anthony Hill, Richard Bassed and John Clement

Honorary Forensic odontologists with Victorian Institute of Forensic Medicine

No evidence of trauma to the head and neck region. All oral structures including teeth, frental attachments, gingival and tongue were intact and showed no evidence of trauma.

Examination of findings from all autopsies - including death scene and post mortem photographs of Shania

Mother's claim of breath holding "a faint possibility".

Did not interpret episodes of apnoea. Noted that Shania was too old for SIDS, there was no indication that infection or accident played a role in her death.

Cause of death: undetermined. "Unexplained death is extremely rare in children and the possibility of murder should be considered".

All the evidence points to all the children having been killed by non-accidental suffocation.

An ALTE always raises suspicion as to non-accidental suffocation of every child who dies of SIDS, despite there being no evidence of physical harm.

Confronted with evidence of Geraldine Taylor that she had witnessed Shania's breath holding spells, Dr Beal queried whether it was breath holding if there was no loss of consciousness.

Indicated that she had complied her report without knowledge of evidence of the Odontologists Drs Hill, Bassed and Prof. Clement who found no teeth marks on Shania's lips, however this did not affect her conclusion.

Cause of death: undetermined, having ruled out accident, infection or unrecognised congenital malformation, she was prepared to find non-accidental suffocation. Therefore reasoning backwards to a probability that the other three died from non-accidental suffocation.

Examination of histological slides and post mortem photographs.

Appears to discount the apparent apnoeic episodes on the basis of a lack of independent corroboration. It is unclear whether he was aware of the stmt of Geraldine Taylor.

Makes reference to a paramedic describing blood stained fluid in Shania's mouth at time of intubation rather than paramedics who observed pink frothy fluid in the endotracheal tube used in resuscitation efforts and the fact that her body was warm.

On basis of photographs purported to observe frank (pure liquid) blood on the outer side of the right nostril and a blood clot within it. 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. Also discerned two abrasions or superficial lacerations on the inner (mucosal) surface of the upper lip and three recent teeth marks on the upper lip. Felt that Dr Ranson had failed to describe the injuries to nose and mouth in the autopsy report.

Frank blood in mouth, airways and stomach may have been from abrasion or laceration of Shania's upper lip by her teeth, rather than resuscitation related.

Conceded awareness of limitations of photographs, unaware of examinations conducted on Shania by three expert odontologists.

Maintained presence of frank blood on outer side or right nostril and existence of facial injury. Discounted Dr Ranson's observations of the drying artifact and those of the three odontologists.

Conceded that he was in error when informed that paramedics at the scene of Shania's death observed no frank blood but pink frothy fluid and that Dr Ranson did not record frank blood in her stomach. He further conceded error in relation to his observation of three tooth marks in her upper lip given that the odontologists and two dentists did not observe any.

Cause of death: in light of the above he would have no basis for the conclusion of smothering and would have to conclude that it was undetermined. Though in re-examination, he said that there was no identifiable natural cause of death and that the death of each was consistent with smothering.

Clinical practice was in Paediatric Forensic Pathology

Reports examining circumstances surrounding the deaths and autopsy findings dated 7 March 2006

Clinical features such as brain swelling, swallowed blood (in fact Dr Ranson reported "a small quantity of slightly bloodstained mucoid material"), pulmonary haemorrhage, unexplained ALTE the day before the death, presence of bloody fluid in her nose and mouth at autopsy and absence of risk factors for SIDS.

The non medical factors taken into account were the same as those listed in relation to Joshua.

Upon later examination of photographs of Shania, she stated that photos of Shania's mouth and autopsy findings were consistent with bleeding from injury to mouth and nose. "... this bleeding resulted in swallowed and aspirated blood from pressure to the nose and mouth during homicidal suffocation".

Unclear whether Dr Ophoven was in receipt of material from the odontologists.

Observes injuries to the oral area of Shania Matthey based on observations of photographs.

Injuries would not be caused by a child's lower facial impact with a coffee table. Dr Lerpiniere states that this scenario was suggested to her by DS Sol Soloman.

Dr Lerpiniere indicated that she had never been told the findings of the pathologist Dr Ranson (or lack thereof) in the area of the child's face. Nor had she been told of the findings of the three odontologists who viewed the body.

Dentist in private practice - forensic dentist with Victorian Institute of Forensic Medicine

Acknowledged that he had been misled in that he was not informed that the pathologists had found no such thing. Agreed that the information must have influenced his thinking. Conceded difficulties of dimension, colour and reflection in photographs. Stated "this is by and large Dr Lerpiniere's report. I agreed with all the points" as "she is far more experienced in dental trauma in children".

Further post-autopsy investigations on Jacob, Chloe and Shania

No information revealed from further post autopsy investigations to enable him to draw inference that the deaths of Jacob, Chloe and Shania resulted from a recognised and identifiable natural disease.

Nevertheless, natural disease process had not been excluded as a direct or indirect mechanism to explain the deaths.

Review of the pathological material had not permitted the inference that any of the children had died as the direct or indirect consequence of deliberate or inadvertent infliction of any injury or dangerous act by a third party.

Examination of the autopsy reports 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.

Professor of Forensic Medicine, Monash University and Director Victorian Institute of Forensic Medicine

Review of findings of each of the forensic pathologists - reports dated 28 Jan 2005 and 28 June 2005

It is wrong on the forensic pathology available in this case to conclude that one or more of the Matthey children are victims of homicide. There is no merit in forcing certainty where uncertainty exists.

There is no pathological basis for concluding homicide. The findings are completely compatible with natural causes. The findings cannot rule out smothering in one or more of the cases, but especially in Shania's case, it is important that absolutely no signs of asphyxia or compression of the face are present.

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

Observed no injuries on examination of photos of Shania. Bloodstained fluid observed in Shania's stomach could have resulted from resuscitation techniques, or could have reached the stomach passively after death and not much significance ought be ascribed to it.

Fluid in mouths and noses of the children are described by the pathologists conducting the autopsies as blood stained exudates or fluid, not blood, as Dr Ophoven describes it. Such fluid is a common marker of pulmonary oedema and is a relatively non specific feature of many deaths from different causes.

Ambulance officers observed pinkish froth, not frank blood whilst intubing Shania. Prof. Cordner notes that Dr Ophoven does not make reference to the possibility that blood staining could have arisen during resuscitation, and could find its way down to the stomach. Prof. Cordner notes that this would be a sufficient basis for discounting any significance attaching to the presence of blood in the stomach.

Pulmonary haemorrhage in the cases of Jacob, Joshua and Shania is a marker of pulmonary congestion which is a very non specific finding common in deaths from many causes. And cites Professor Berry, Professor of Paediatric Pathology "Pulmonary haemorrhage ... is neither a necessary nor specific marker of deliberate or accidental suffocation".

Insofar as Dr Ophoven regarded the event on the day before Shania's death as a possible asphyxial assault, there were no injuries referable to such an assault at autopsy and no sign of pulmonary haemorrhage that might have been 24 hours old.

Felt that Dr Ophoven over emphasised absence of SIDS risk factors.

Prof. Cordner also considered time of death, demographic of social disadvantage and absence of facial and conjunctival petechiae (which whilst rarely seen in children, were nonetheless absent). In Shania's case, there was a greater probability of their presence. Significantly, there was no bruising of the inside lips, frenulum or around Shania's mouth or nose. Also queried lack of mention of pulmonary siderophages by Dr Ophoven.

The diagnosis of SIDS is one of exclusion. If a condition is found at autopsy which is capable of causing death and which accords with the circumstances, it is elevated to the cause of death. There is a limit to what can be done to exclude other causes of death eg there are dozens of minor genetic mutations causing potentially fatal cardiac arrhythmias or other mutations causing sub microscopic abnormalities to heart muscles. The emotional weight of the case 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 inherited arrhythmic disorder.

[1] Argument upon the question of whether separate trials should be ordered was postponed pending this ruling.

[2] Full details of Dr Dinning's findings are to be found at p.1521 of the transcript.

[3] [Meaning a strong asymmetrical cranial deformation].

[4] [Being inflammation of the middle ear].

[5] [Being a causative agent of serious pus related infection especially in children].

[6] [Being the membrane separating the external from the middle ear].

[7] [Being a type of bacteria responsible for severe inflammation in the lungs].

[8] [Being the mucous membrane covering the anterior portion of the eyeball reflected upon the lids, and extending to their free edges].

[9] [Being blood on the anterior chamber of the eye].

[17] [A macrophage is a cell having the property of engulfing and digesting foreign or other particles or cells harmful to the body].

[30] [Macrophages containing granules of iron-containing pigment, especially hemosiderin].

[42] A chart attached to this ruling sets out in summary form, the current state of the medical evidence.

[43] [2001] NSWCA 305; (2001) 52 NSWLR 705.

[46] (1990) 24 FCR 313 at 350-1.

[48] [2004] EWCA Crim 1; (2004) 1 WLR 2607.

[55] [2005] EWCA Crim 1092.

[59] Cannings case is also distinguished in R v Folbigg [2005] NSWCCA 23.

[60] [2003] NSWCCA 17. (Decision of the NSW Court of Criminal Appeal - Hodgson JA with whom Sully and Buddin JJ agreed).

[62] [2003] EWCA Crim 1020 at paras [94]ff and [172]ff.

[63] [2005] NSWCCA 23.

[68] Australian Journal of Forensic Sciences, vol.39 No. 1, June 2007, pp.11-24.

[69] Sharmila Betts and Jane Goodman-Delahunty.

[72] Carpenter RG, Waite A, Coombs RR, Bamen-Willems C, McKenzie A, Huber J, Emery JL Repeat sudden unexpected and unexplained deaths: natural or unnatural? The Lancet 2005; 365: 29-35.

[82] [1970] HCA 17; (1970) 123 CLR 334.

[85] (1998) 194 CLR 106 [181]-[182].

[86] (1998) 4 VR 603 at 612.

[87] See also R v. TJB (1998) 4 VR 621 at 632 and R v. Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412 at 419.

[88] I do not regard this species of propensity evidence as subject to the admissibility test enunciated by the majority of the High Court in Pfennig v. R [1995] HCA 7; (1994) 182 CLR 461 at 481 (Mason CJ, Deane and Dawson JJ; and see also McHugh J at 530.

[91] [Meaning being unconscious and not able to be roused].

[99] [1914] AC 545.

[102] [1995] VicRp 34; [1995] 1 VR 533.

[103] [1992] VicRp 17; (1992) 1 VR 273 at 274.

[104] [1991] 1 Qd R 231 at 255.

[134] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 paras 30-31.

[135] R v Favata [2006] VSCA 44 and R v Barrett [2007] VSCA 95.

[136] Additionally, there is a letter written by Carol Matthey to SIDS Victoria in 2001 (subsequent to the deaths of Jacob and Chloe) in which she sets out the devastating effect of their deaths on herself and her husband (4705ff).

[138] There is also demeanour evidence from police members Binns (4383) re Chloe; Noggler (4386) re Joshua; Sodomaco (4410); Stamper (4418/9); Stevenson (4424); Quirke (4393 and 4395); and Hicks (4399/4400) re Shania.