Submissions of the accused
236Counsel for the accused conceded that the expert evidence did not support a defence of mental illness. However, he submitted that the whole of the evidence tended against the proposition that the accused had murdered OB and that the Crown had failed to exclude, as a reasonable possibility, that OB's death was the result of accidental drowning, occurring in circumstances where:
(i)the accused had been bathing OB in a big bath for the first time;
(ii)OB had been placed in the Bumbo seat which presented as being more stable than it actually was;
(iii)because of her mental illness, the accused was susceptible to profound distraction and thought blocking, and was not "appraised of time accurately";
(iv)as a result of distraction, be it because of an incoming telephone call, the necessity to obtain a bath towel, or some other cause, the accused left OB in the bath and took time to return to the bathroom, by which time OB had drowned.
237Counsel commenced by making reference to the 000 call which, it was submitted, was not inconsistent with an intention to kill on the part of the accused. The essence of the submission advanced by counsel was that the distraught demeanour of the accused was inconsistent with what would be expected from somebody who had just intentionally killed her child.
238Counsel also relied upon the evidence of OB's forthcoming Baptism, and the preparations being undertaken by the accused in relation to it. This, it was submitted, was a circumstance which was plainly inconsistent with the proposition that the accused had intentionally killed OB. Counsel also relied, in this regard, upon the evidence of the accused's concerns about OB's health, and the possibility of genetic deformity. It was submitted that the expression of such concerns, and the repeated requests for testing, were consistent with a desire to ensure that OB was properly treated, rather than a desire to kill her.
239Counsel for the accused also relied upon the evidence of the accused's anxiety, her exhibited lack of concentration, and the thought blocking which was part of her symptomatology. It was submitted that all of these factors were inconsistent with the Crown case, but completely consistent with a conclusion that OB had drowned in a tragic accident.
240Counsel also relied on the evidence of Dr Van Vuuren that she could find no evidence of "foul play". It was submitted that this tended completely against a conclusion that any deliberate mechanism had been employed to kill OB.
241It was submitted that the evidence of the accused's internet searches did not give rise to any sinister inference, but were consistent with wanting to do everything possible for OB in the event that a genetic abnormality was confirmed. As to the evidence of text fragments relating to death by drowning, counsel for the accused accepted that there was an available inference that the accused had accessed an article entitled "Drowning and sudden cardiac death" in the period leading up to OB's death. However, he submitted that I should "exercise caution" in using that inference to support a conclusion that the accused intended to kill OB. He pointed, in particular, to the fact that the text fragments had been retrieved by the use of certain "search words" by the police, in circumstances where there was no evidence that the accused had ever entered all or any of those words into any search engine.
242Counsel also relied on that part of Professor Greenberg's report (Ex AT1 p. 27) in which he indicated that in his opinion all of the factors pointed to a conclusion that the accused had inadvertently left OB unattended. Counsel accepted that it was not for Professor Greenberg, nor indeed for any other expert, to determine the facts but nevertheless submitted this was further evidence supporting the accused's poor concentration, and a further indication that the Crown had failed to eliminate accidental drowning as a possible cause of OB's death.
243Counsel for the accused also relied upon the evidence of RB concerning the instability of the Bumbo seat. He submitted that the evidence established that the accused had little or no previous experience with the seat and that the evidence of RB as to its instability was consistent with the accused, as a result of poor concentration or thought blocking, leaving OB in the bath, only to have OB fall forward out of the seat due to its instability, and drown in the accused's absence.
244Counsel acknowledged that the accused had provided a number of inconsistent accounts of the events of 18 November. However, he submitted that these accounts should not be regarded as deliberate lies, in view of the evidence that inconsistent accounts were part of the manifestation of the accused's disturbed mind.
245Counsel for the accused also submitted that there was evidence which established that the accused was a caring and concerned mother. It was submitted that such evidence tended against the proposition that the accused was the kind of person who would murder her daughter. In this respect, counsel for the accused invited me, in effect, to treat that evidence as akin to evidence of good character.
246In terms of the evidence of the statements made by the accused to Ms Dattilo, Ms Di Nunzio and Ms Dinov, counsel for the accused submitted that they should be viewed as statements of "profound frustration on the part of the accused, evidencing an inability to cope with maternal responsibilities" rather than an intention to kill OB.
247Counsel acknowledged the evidence of Dr Van Vuuren as to OB's injuries. However, he relied upon Dr Collins' evidence that the injuries were up to 1 to 2 days old and, in light of this evidence, pointed to the evidence of Ms Dinov that she had observed the accused drag OB across a floor on 16 November, 2 days before her death. Counsel submitted that this evidence provided an alternative hypothesis as to the cause of OB's injuries. I should say that I am not able to accept that submission in light of my rejection, for the reasons already given, of that part of Dr Collins' evidence.
Consideration
248Before considering the submissions of the parties it is appropriate that I deal with the discreet issue of whether the accused's conflicting accounts of the events of 18 November constitute evidence of deliberate lies.
249In Edwards v R [1993] HCA 63; (1993) 178 CLR 193, and subsequently in Zoneff v R [2000] HCA 28; (2000) 200 CLR 234, the High Court considered the question of how lies may be used against an accused. The principles established in those two cases may be summarised as follows:
(i)a lie may constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence, and thus relates to a material issue;
(ii)the lie, and the circumstances relied upon to establish that it constitutes an admission against interest, must be precisely defined;
(iii)the jury must be satisfied that the lie was deliberate;
(iv)the lie may be taken into account only if the jury is satisfied, having regard to the circumstances and events, that it reveals a knowledge of the offence, or some aspect of it, and that it was told because the accused knew that the truth of the matter about which he or she lied would implicate him in the commission of the offence; and
(v)it is necessary for the jury to be reminded that there may be reasons for the telling of a lie apart from the realisation of guilt.
250In R v Lodhi [2006] NSWSC 672 Whealy J (as his Honour then was), having summarised those principles, observed that the weight of authority and academic opinion favoured a cautious approach to the use of lies as evidence of consciousness of guilt: R v Sutton (1986) 5 NSWLR 697 at 701 per Street CJ; R v Heyde (1990) 20 NSWLR 234 at 236 per Gleeson CJ; R v Ray (2003) 57 NSWLR 616 at 632 per Wood CJ at CL; Zoneff (supra) at 244. Whilst this may be so, it is necessary to bear in mind that even though caution is necessary, it cannot be allowed to inhibit the Crown from having the benefit of such evidence when that course is clearly appropriate: R v Lane [2011] NSWCCA 157; (2011) 221 A Crim R 309 at [11] per McClellan CJ at CL.
251Underlying the principles to which I have referred is the fundamental proposition that any statement made by the accused which is said to be a lie must be factually false, or wrong. That a statement is factually false or wrong does not necessarily connote that it is a lie - that is why it must be established that the asserted lie is deliberate: Lane (supra) at [58] per Simpson J.
252I am not able to accept the Crown's submission that I should treat the accused's accounts of the events of 18 November 2010 as deliberate lies which evidence a consciousness of guilt. I have come to that view for two primary reasons.
253Firstly, there is an element of circularity in the Crown's argument. This is because the conclusion that the accused's accounts were deliberate lies is largely dependent upon assessing the entirety of the Crown's circumstantial case.
254Secondly, and more importantly, I must remind myself that there may be reasons for telling a lie, other than a consciousness of guilt. In the present case, there is evidence that the inconsistent accounts given by the accused were a manifestation of her disturbed mind. Significantly, those accounts were obviously given after OB had died, at therefore at a time when the accused's condition had been exacerbated by reason of OB's death.
255For these reasons I have not treated the accused's conflicting accounts as amounting to evidence of deliberate lies which reflect a consciousness of guilt. I turn then to consider the submissions of the parties.
256The Crown case that the accused intentionally murdered OB is a circumstantial one. In Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22, the Court of Criminal Appeal (McClellan CJ at CL, Fullerton J and Garling J) said (at [466]):
"The case against the applicant is a circumstantial one. As McClellan CJ at CL discussed in Wood v R [2012] NSWCCA 21 at [50]-[53], where a case is circumstantial 'the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused' quoting Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ), citing Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; see also Plomp v The Queen [1963[ HCA 44; (1963) 110 CLR 234 at 252".
257In the same paragraph the Court emphasised the need to consider the evidence as whole:
"... a circumstantial case must be considered holistically. The court must weigh and consider the totality of the admissible evidence before reaching a conclusion, on the whole of the evidence, that it was open to the jury to be persuaded beyond reasonable doubt of guilt or, in the alternative, that a doubt persists such that it would be dangerous to allow the verdict of guilty to stand: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ)".
258Whilst these comments were made in the context of an appellate court considering whether the evidence was sufficient to sustain a verdict of guilty at trial, they obviously reflect the approach which I am required to take in determining whether the circumstances relied upon by the Crown, when taken together, establish that the accused committed the offence of murder. That approach does not involve a process of reasoning in which an attempt is made to explain away every individual circumstance as being consistent with innocence: Gilham (supra) at [466] citing R v Micaleff [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42]; Burrell v R [2009] NSWCCA 193 at [55].
259In my view the evidence in the present case establishes the following relevant circumstances.
260On and from the first consultation with Dr James on 24 June 2010 the accused became distressed, highly anxious, and significantly pre-occupied with OB's appearance and, in particular, about the possibility that she suffered from some form of genetic abnormality. So much is clear from the unchallenged evidence of her conversations with medical practitioners, their staff, members of her family and her close friends.
261The level of the accused's pre-occupation is particularly evident from the number of internet searches she conducted in relation to topics pertaining to genetic deformity. Moreover, she went so far as to tell her mother in February 2011 that had it not been for evidence of frontal bossing, OB would still be alive. It follows that the accused herself linked what she believed to have been OB's frontal bossing to the reason for her death. Obviously, it was not frontal bossing that was the cause of OB's death. However, frontal bossing was one of the issues which was of great concern to the accused in the context of what I am satisfied was an obsession with perfection.
262Although medical practitioners constantly reassured the accused that OB had no abnormality, those reassurances were, generally speaking, not accepted by the accused despite her occasional indications to the contrary. Even after the final test results were communicated to her on 26 October 2010, the accused remained concerned that OB was suffering from some kind of syndrome. She continued to express views to that effect well into November 2010.
263The accused's anxiety, and her pre-occupation with the suggestion that OB had a genetic deformity of some kind, arose in circumstances where she:
(a)told Dr Betts of a negative experience with a dwarf;
(b)told Ms Dattilo that she was in fear of dwarfs; and
(c)told Ms Shalhoub that she was frightened by a dwarf as a child.
264The accused was also a person who had obsessional traits, particularly in relation to her appearance. Against that background she:
(a)expressed her regret that she had been unable to give birth to a "perfect" child;
(b)questioned why her otherwise "perfect life" had been upset by OB's birth;
(c)questioned why it was that others had "normal" babies when she did not;
(d)questioned why she "deserved" something other than a normal child; and
(e)stated that she wished she "never even had that baby".
265These statements, in my view, indicate a considerable degree of resentment on the part of the accused towards OB. Perhaps with the exception of the matter in (e), the remaining statements were something of a recurring theme in the period leading up to OB's death.
266The accused also made several disturbing statements to Ms Dinov about jumping off a cliff with OB, throwing her off a cliff, or throwing her in the bin, because OB had not fitted in to her "perfect family". In a not dissimilar vein, the accused also expressed the view to Ms Dinov that it was preferable to deal with a terminal illness than have a lifetime with a dwarf. Further, whilst I do not accept the evidence of Ms Dattilo that the accused said to her that she would have to "get rid" of OB, Ms Dattilo's unchallenged evidence was that the accused had said to her that if OB was a dwarf, she would have to be "taken away". In my view, these statements reflect the level of the accused's resentment towards OB and a desire on the part of the accused to be rid of her. When viewed in the context of the entirety of the circumstances, the multiplicity of such statements, and the terms in which they were made, reflect a great deal more than mere frustration on the part of the accused in dealing with the possibility that OB was in some way genetically abnormal.
267The accused had told Ms Di Nunzio that she "could not cope" if OB was a dwarf. The entirety of the medical testing indicated that OB was completely normal. That was never fully accepted by the accused. There was a distinct lack of affection demonstrated by the accused to OB, and a lack of bonding between them. The accused herself acknowledged that lack of bonding and attributed it, at least in part, to the possibility that OB was a dwarf. The accused's difficulties extended to an inability, on occasions, to even look at OB or pick her up. They also extended to describing OB, at one point, as a "frittata". All of these matters are inconsistent with the proposition that the accused was a caring mother.
268Although the accused's internet research about genetic deformities reflects her anxiety about OB's suggested condition, her searches went well beyond that. A number of them were directed towards the topic of termination of pregnancy where there was evidence of dwarfism. More significantly, two articles appearing in the text fragments retrieved by Mr Watt related to the subject of drowning, one of them specifically to "drowning and sudden cardiac death". Given the manner of OB's death, the significance of that article is obvious. Its importance lies not in the particular search mechanism by which it was obtained, but in the fact that it was present amongst the text fragments located on the accused's computer. The inescapable inference is that the accused accessed that article. The fact that she had done so is consistent with the accused enquiring about methods by which she could rid herself of OB. That, in turn, is completely consistent with what she had said to her friends.
269When RB left for work on the morning of 18 November 2010 he saw no injuries to OB's head. His evidence in that regard was not the subject of any challenge. The injuries found by Dr Van Vuuren are consistent with having been inflicted by a fingernail. Moreover, the fact that there is more than one isolated injury tends against the suggestion that the injuries came about as the result of the accidental passing of a fingernail upon OB's head. They are, however consistent with the application of blunt force, and thus consistent with forcibly immersing OB's head in the water. In this regard, it is not insignificant that the accused was observed to have a wet sleeve at the scene.
270In my view, these circumstances, when combined, establish that the accused murdered OB by intentionally drowning her. Indeed in my view, that conclusion is overwhelming.
271I am satisfied that the Crown has excluded, as a reasonable possibility, that OB drowned by accident as a consequence of being left in the bath due to a lapse in concentration, or an episode of thought blocking, on the part of the accused. Acceptance of such a possibility necessarily assumes that thought blocking did occur at that time, a matter about which there is no direct evidence. More importantly, as Professor Greenberg conceded, the acceptance of the possibility that thought blocking caused the accused to become distracted requires the evidence of (inter alia) the accused's stated intentions to harm OB, be it by throwing her off a cliff or throwing her in the bin, being completely ignored. It was not suggested that those statements were not made by the accused, nor was there any evidence that the accused's mental disturbance should cause me to interpret those statements in a way inconsistent with their express terms. There is, therefore, no basis upon which I should ignore that evidence.
272Further, and even accepting for present purposes that the Bumbo seat was not stable, the suggestion that it was reasonably possible for the accused to be distracted by the necessity to (for example) retrieve a towel or a piece of clothing, to the extent that she left OB in the bath for an extended period, is not consistent with the objective evidence. Even if it were assumed that the accused had to retrieve such an item from the clothes dryer (that being the location furthest away from the bathroom of the accused's premises) the evidence establishes that it takes a maximum of only 29.9 seconds to walk from the bathroom, to the clothes dryer and back. If, for example, the item was in one of the bedrooms, the time taken would be a maximum of only 17.9 seconds. As I have noted, the evidence of Professor Cass is that it takes 4 to 6 minutes for a child to drown. The suggestion that the accused may have suffered an episode of thought blocking at that time, or that she became otherwise distracted, is purely speculative.
273The suggestion that the accused might have been distracted by a telephone call is equally unlikely. The last incoming call is recorded as coming to the accused's telephone from Julie Stockton at 11.34.07 for a duration of 13 seconds. An SMS message was received from Ms Stockton at 11.34.49. The 000 call was not received until 12.12 pm.
274I acknowledge that Professor Buist thought it highly unlikely that the accused could have had an intention to kill, independent of any psychiatric disorder. However, whilst it may be highly unlikely, I am satisfied that the accused did have that intention in the present case. In my view, that is an overwhelming inference to be drawn from a combination of the circumstances to which I have referred.