R v NB

R v NB - [2022] NSWSC 151 - NSWSC 2022 case summary — Zoe

[2]

Judgment

On 23 March 2015, [redacted] died (his father does not wish him to be identified when publishing this judgment, and therefore I will refer to him as the deceased). He was 20 months old.
At the time of his death, he was in the care of the accused and her partner on a temporary basis as foster carers. I will refer to her partner as Kevin throughout out this judgment.
On 8 January 2018, the accused was charged with the deceased's murder. The accused has entered a plea of not guilty to the charge against her.
The trial commenced before me, sitting as a judge alone, in the Supreme Court at Dubbo on 17 January 2022 and was heard over a period of 17 days.
The Crown submits that I would be satisfied that the accused is guilty of the deceased's murder but, if I am not, I would go on to consider whether the lesser offences of either manslaughter by dangerous and unlawful act or manslaughter by way of criminal negligence have been established.
On investigation subsequent to death, it was determined the deceased had sustained a number of injuries. There is really no dispute as to the existence of these injuries but there is a substantial dispute as to their cause and origin and the time or times at which these injuries might have been sustained.
On the evidence adduced and assuming the accuracy of the evidence, no one witnessed the accused doing anything to the deceased which would have caused such extensive injuries. However, there is expert evidence as to the nature of the injuries, the possible mechanics of injury and the possible circumstances and timing of the injuries. The accused has raised the possibility that at least some of the injuries may have been sustained accidentally or by other unknown persons or be self-inflicted.
The case involves a consideration of extensive lay evidence and complex medical issues. Evidence was adduced from 26 lay witnesses and 9 expert witnesses.
At the outset, I remind myself that the Crown must prove every element of the offence beyond a reasonable doubt, and that there is no onus on the accused to prove anything.
The accused did not give evidence in the proceedings but the Crown tendered three electronically recorded interviews with the accused and there was evidence from a number of witnesses of various things said by the accused at different times.
Again, I emphasise that no inference can be drawn against the accused arising from her decision not to give evidence in these proceedings. That is her right and I draw no inference in that regard.
Further, evidence of the accused's prior good character was adduced. I accept that the accused was a person of good character, in the sense that she has no criminal history. I have regard to that on the basis that being a person of good character makes it less likely that she would commit the offence of which she has been charged.
I will start with providing a short summary of the background to the death of the deceased.
In order to protect the identity of children or people who were children at the time of the events, I will use a number of pseudonyms and not refer to addresses unless it is necessary to do so. In particular, I will not identify the other children of the accused in any way other than Child 1, 2 and 3, being the oldest to youngest. I will not identify the place where the events occurred.

[3]

The deceased's short life

The deceased was born on 11 July 2013. I am uncertain as to the relationship between his parents. There may have been issues relating to drugs. Unfortunately, the deceased's mother also died at some stage prior to the trial.
The deceased's mother had at least two older children, being JE and HK. In 2011, both JE and HK had been placed with long term foster carers, who I will refer to as Mr and Mrs Johnson, by the Department of Family and Community Services (FACS). They had lived with Mr and Mrs Johnson since 2011 and remained with them in 2015.
The Johnson family regularly attended Church in Dubbo. During 2014 they saw the deceased with his mother at Church from time to time. As of November 2014, FACS assumed responsibility for the deceased.
On 5 November 2014, the deceased was placed with the accused and Kevin as foster carers. He went to live at their home in a small village or group of houses outside Dubbo. There are less than ten houses in the village. Shortly thereafter, Mr and Mrs Johnson agreed that they would become foster parents to the deceased on a permanent basis so that he may join his two older brothers. However, they were not ready to take in the deceased at that time.
The deceased remained with the accused and Kevin until his death. As it turns out, the deceased was due to be transferred to the care of Mr and Mrs Johnson on 1 April 2015. The accused had been told that she would not be keeping the deceased on a permanent basis on or about 25 February 2015.
During the two weekends before his death, he was taken by the accused to spend time with the Johnson family. He last spent time with the Johnson family on Saturday 21 March 2015. He was returned to the accused on the afternoon of 21 March. On the next day, 22 March, he remained at the house of the accused until the accused's family and other persons from the village attended the accused neighbour's house, that is Kevin's brother's house, to watch a game of rugby league. The time at which he was brought home is a little uncertain, but it was probably between 8.30 and 9.30pm.
In her first Police interview, the accused said that she changed him and put him into his cot but, when she checked a short while later, he had vomited. She then bathed him, dressed him, and put him back in his cot where, according to the accused, he went to sleep in his cot in the same room as she was sleeping. The accused says that he did not like being bathed and that he reacted adversely in the bath, including doing what she described as crocodile rolls and banging both the front and back of his head.
She heard him making some noises around 2 or 3am but she says he went back to sleep. She says that when she awoke around 5am she noticed that he did not appear to be breathing properly. She removed him from his cot and tried CPR and Kevin called triple-0.
In view of the remote area, it took approximately 40 minutes for the ambulance to arrive. Two teams of paramedics attended. When the first team arrived and went inside the house, the accused was observed to be attempting CPR on the deceased.
The ambulance officers could not detect a pulse and the deceased was not breathing. They made a number of other observations, which I will come to. They did everything they could to revive him. They continued their attempts whilst transporting him to Coolah Hospital, a distance of 64 kilometres. On arrival at Coolah Hospital they met the CareFlight helicopter and the specialist doctor and paramedic, who took over attempts at revival. The deceased was pronounced dead at 7.30am.

[4]

The placement of the deceased with the accused

At the time of the deceased's death, the accused was 38 years of age. She had been living with Kevin since 2007. They had one child between them (who I will describe as Child 3 in this judgment) who was 5 at the time. The accused had two older children to her earlier partner (Child 1 and Child 2) who were 16 and 13 at the time. They all lived in a house in the village. Kevin generally worked away from home Monday to Friday.
In the period of 2007 to 2008 the accused had become a specialist carer working with Uniting Care Burnside (Burnside). She had undertaken all the necessary courses and obtained the necessary certificates, including the necessary first aid certification. Her work involved attending at persons' houses and providing care to children with special needs on a shift-by-shift/ contract basis.
She had not worked as a specialist carer since becoming pregnant with Child 3. On 28 January 2014 she and Kevin made an inquiry with Burnside regarding becoming foster carers. They were approved on 21 July 2014. There were two other families in the village who cared for foster children.
Burnside undertook an assessment in accordance with its policies and procedures of their suitability to be foster carers. After assessing both the deceased and the accused and Kevin, Burnside placed the deceased with them. The deceased was Indigenous as is Kevin. The accused is not. Part of the assessment undertaken by Burnside involved matters relating to cultural significance.
The process of assessment of the accused, placement of the deceased and monitoring by Burnside was thorough. There is no suggestion that the case manager or caseworkers involved did not undertake the proper processes or comply with proper procedures and policies in placing the deceased.
Although the circumstances in which all of the documentation was completed by the accused's various family members is not entirely clear, the material contains handwritten statements from family members as to the caring environment in the family home and the respect and support that the family members had provided to each other.
The accused had cared for another foster child for a few weeks prior to agreeing to care for the deceased. Having regard to what she told the Police, she had hoped to have the deceased on a long-term basis. When asked about any work she said that being a foster carer was her job, having regard to the remote area where she lived.
Leaving aside the appearance of bruising on the deceased as observed by the Johnsons and one bruise observed by a caseworker (on which I will comment later), there is nothing in any assessment or check undertaken by Burnside which might have suggested to Burnside that the deceased was in danger or not being looked after by the accused prior to his death.
At the time of being placed with the accused, the deceased was already walking. At least according to statements made by the accused to various persons at different times, he was a very active child.
The Burnside case reports of 2014 refer to an occasion where the deceased was observed with bruises above his right eye and a bruise above his left eye. The records refer to the accused having explained that the bruises were caused by the deceased headbanging a wall and a car.
Many persons gave evidence of their observations of the deceased in 2014 and 2015. He was examined in March 2015 by Dr Agrawal. It was said he was a child of normal weight and growth.
There can be no doubt that he was generally stable on his feet as of March 2015. According to the accused and having regard to the limited observations of persons such as Child 2 and the caseworker, it seems that the deceased had a tendency to bang his head if he did not get his own way. His Burnside caseworker gave evidence of seeing him do this on one occasion. She also observed him walking into the edge of a table rather than ducking underneath it. Child 2 said that over the course of his time with them she had observed him do it more than once and less than ten times.
There is some evidence that the deceased generally did not cry. Neither Mr Johnson nor Mrs Johnson heard him cry at all during their visits with him. None of the people who lived in the village or were familiar with him or had seen him gave evidence of ever hearing him cry other than one person. Having said that, Kevin, Child 1 and Child 2 had heard him cry. Child 1 heard him crying at home on the night of his death but thought it was related to the time of night.
Almost all of the evidence about the deceased (and it came from many witnesses) was to the effect that he generally presented as a normal child, running around, playing with other kids, being willing to sit on the laps of adults. He had limited vocabulary, perhaps being able to speak ten words.
According to the accused, he did not like having a bath. As I will discuss later in this judgment, this is particularly relevant. When his half-brother HK was first placed with the Johnsons in 2011 (at the age of two), he also did not like getting his hair wet or having his hair washed and would resist. However, according to Mr Johnson, that resistance stopped after a short period.
Subject to the suggested tendency of banging his head and not liking a bath, at least up to March 2015, all indicators were that the deceased was healthy and developing in the normal way.

[5]

Investigation into the deceased's death

Immediately following the deceased's death, the Police commenced enquiries into the circumstances leading to his death. The investigation was led by Detective Sergeant Joshua Holgate.
The accused voluntarily participated in an electronically recorded interview commencing at 10:22am on 23 March 2015. She participated in another interview on 1 April 2015. She contacted the Police again on 23 June 2015 and the Police recorded a further interview with her that day.
When the first ambulance officers entered the accused's home at approximately 6am, the deceased was observed to be on the ground with the accused applying CPR to him. The ambulance officers took over. They observed bruising to the deceased's face and that he had a distended stomach.
There is no evidence of these marks to his face being present at the time when he left the neighbour's house approximately nine hours earlier. There is a video taken of the deceased whilst he lay on the hospital bed after all resuscitation steps had ceased. The marks on his face, as well as other bruising and his distended stomach, are obvious. His face was also stained by the acid from his stomach contents. This arose either as a result of the suction applied to his airway during resuscitation attempts, or because he had been lying in his cot in vomit for some period of time.
An autopsy was conducted on the deceased by Professor Timothy Lyons from the Department of Forensic Medicine at Newcastle on 25 March 2015. Professor Lyons concluded that the deceased was suffering from multiple injuries. Professor Lyons summarised those injuries as being: 1. Closed head injury with significant sub-scalp and facial bruising; 2. Multiple bruises to the torso; 3. Trochanteric fracture of the left femur; 4. Perianal bruising, fissure and pneumatosis coli of the lower rectal mucosa; and 5. Iatrogenic perforation of the stomach.
Professor Lyons reported that in his opinion the severity and number of injuries was inconsistent with the injuries being accidental in nature. He considered that the most likely cause of death was a combination of hypovolaemic shock and a developing head injury. Professor Lyons considered that the iatrogenic perforation of the stomach i.e. stomach rupture, was likely due to the orogastric tube inserted into the deceased as part of the attempts to resuscitate him. As such, he did not consider that the stomach rupture was causally related to his death.
As part of his investigation, Professor Lyons obtained a neuropathology report from Associate Professor Michael Buckland, a blood analysis report from a toxicologist, and imagery and radiological investigations.
Professor Lyons cut a number of tissue sections from the deceased's body on which he commented. These sections were preserved in paraffin and were available for subsequent examination by experts who came into the case at a later time. Some of these sections were recut by another forensic pathologist, Dr Issabella Brouwer, as part of her investigation.
However, there is some criticism as to some vague descriptions adopted by Professor Lyons and, as he did not consider that the stomach perforation was the cause of death, there was no focus on that area by him.
Unfortunately, Professor Lyons died in June 2019, 18 months after the accused had been charged. Following his death, the Crown retained another forensic pathologist, Dr Issabella Brouwer, to review Professor Lyons' findings, as well as all the material then available to Dr Brouwer, and to form an opinion as to the cause of death and the injuries from which the deceased was suffering at the time of death.
Dr Brouwer provided a number of detailed reports and was examined in the witness box for over two days. Dr Brouwer disagreed with Professor Lyons as to the cause of death. Dr Brouwer concluded that the stomach perforation occurred prior to death and was unrelated to the insertion of the orogastric tube as part of the resuscitation efforts. She concluded that the perforation observed at autopsy represented an anti-mortem rupture of the stomach due to blunt force trauma to the abdomen. She considered that the extent of the inflammatory response observed at the site of the stomach perforation together with the evidence of florid peritonitis suggested that the injury occurred some hours before death. She considered that the perforation likely occurred at the same time as the insult to the abdomen.
There is a significant dispute as to the circumstances in which and the timing when this injury may have occurred, but there is no dispute and I accept that the deceased did suffer from a stomach rupture at some point prior to death. Indeed, all of the other experts who were qualified to comment and gave evidence, including the experts retained on behalf of the accused, accepted that the cause of death was the stomach rupture rather than any closed head injury as originally suggested by Professor Lyons.
As described by Dr Brouwer, following the rupture of the stomach, contents spill into the abdominal cavity causing peritonitis. Without medical intervention, peritonitis typically causes death in children. Symptoms of peritonitis may include abdominal distention and abdominal pain as well as nausea, vomiting, diarrhoea, constipation, loss of appetite, fatigue, fever, and chills. Put simply, the stomach perforation causes a chemical imbalance leading to peritonitis which causes toxic shock and ultimately leads to cardiac arrest.
Further, all the experts accept that a large amount of force to the abdomen would be required to cause a rupture of the stomach. There may of course be many ways in which a large amount of force could have been directed at the deceased's abdomen, and the various possibilities for this to have occurred were the focus of questioning of lay and expert witnesses.
Despite the extensive bruising to the face and head, the insults which would have caused that bruising did not cause the diffuse cerebral oedema which was referred to Professor Lyons.
Associate Professor Michael Buckland, an expert neuropathologist, diagnosed a diffuse cerebral oedema due to hypoxic-ischemic brain injury. Such swelling can be caused without a traumatic brain injury. A condition that can lead to the type of hypoxic-ischemic brain injury observed in the deceased is septic shock caused by peritonitis.
It will be necessary to consider all of these injuries in some detail, as the medical issues arising in this case are complex and of significance. It is only necessary to say at this stage that I accept (and there appears to be no dispute) that: 1. There must have been multiple insults to the deceased's face and head and other parts of his body at some stage prior to his death. Whether these insults happened all at once or over a number of days or weeks and precisely when they occurred and under what circumstances is a significant issue. 2. The stomach rupture is a very rare injury. It is normally associated with motor vehicle accidents; such is the force that would have been required to cause the rupture. It was described as occurring like a hammer and anvil, with the insult likely coming from the front with such force that the stomach is squeezed against the vertebral column causing the bursting, followed by the stomach contents leaking out of the stomach. It is more likely to occur when the stomach is full. 3. There may be a number of theoretical or potential events which could have caused a stomach rupture, such as being deliberately struck through a punch, a knee or a kick, or some other incident said to include walking into a person using a swing or falling on a trampoline. It is not an injury that could have been sustained merely by falling over. Indeed Dr Currie, an expert paediatric surgeon called in the accused's case, suggested that the force required might be more like falling from a height of 10 metres rather than 1 or even 5 metres. That it is a rare injury does not detract from the fact of its occurrence and the consensus of expert opinion that it could only have happened as a result of a significant blunt force trauma to the stomach, that is a direct forceful hit. However, the fact that it is rare does mean that there are limited studies and analysis of this type of injury, particularly where it is not associated with injuries to other internal organs and particularly in children. 4. The fracture of the femur is also a very significant injury. It could only have occurred through the application of even greater force than would have been necessary to rupture the stomach. The fracture did not occur at an area of a growth plate, meaning that the fracture site was not a point of particular weakness. There was also complete separation of the bone. Such a fracture would be extremely painful and would have prevented the deceased walking, running or really doing anything due to the severe nature of the fracture. That fracture must have occurred before the deceased died because there was evidence of bleeding into the muscle tissue. There was also evidence of the movement of fat emboli from a long bone into the lungs suggestive of having migrated from the fracture site into the lungs. There was some dispute about this evidence. It would be another piece of evidence confirming that the deceased died after the fracture. In any event, it is clear that there was bleeding into the muscle tissue. 5. The injury to the anus was a similarly unusual injury to find in a child of that age, but on my analysis, it was a relatively minor injury, and there is some dispute as to whether it would have involved any penetration.

[6]

The Crown case

As set out in s 18(1)(a) of the Crimes Act 1900 (NSW), murder is established when a voluntary act or omission of the accused causes the death of the deceased and the act is committed: 1. with an intent to inflict grievous bodily harm, or 2. an intent to kill, or 3. reckless indifference to human life.
It is the Crown case that the accused assaulted the deceased at home on 22/23 March 2015 and that the accused intended to inflict grievous bodily harm.
The Crown case is that the injuries from which the deceased was found to be suffering at the time of his death are such that they could only have been caused by a deliberate assault by the accused and that the force necessary to have caused such injuries leads to the inference that the accused must have intended to cause grievous bodily harm.
During her opening address, Senior Counsel for the accused identified the critical issue as the timing of the trauma to the stomach that caused the stomach perforation which led to the deceased's death. As it was the injury to the stomach which caused his death, then unless the Crown has established that that injury occurred in the home and in circumstances in which only the accused could have assaulted the deceased, then the accused could not be convicted of either murder or the lesser offence of manslaughter.
The Crown accepts that, if it does not establish this, then I could not convict the accused of murder or manslaughter.
The Crown relies on what it describes as a constellation of injuries as assisting in establishing that the stomach perforation occurred between 9pm and 5am. [1] In particular, the Crown submits that I should accept that the bruising to the deceased's face (although not all the bruising) arose as a result of insults to his face which happened in the home and were not accidental or self-inflicted. Similarly, the Crown says that I should accept that some of the other bruising and, in particular, the bruise shown on the deceased's abdomen adjacent to the point where his stomach perforated, was not accidental and again was inflicted between the hours of 9pm and 5am.
It is important to emphasise that the Crown must establish that the accused deliberately inflicted the injury which caused the deceased's death, that being the stomach perforation, with the intent to cause grievous bodily harm. The Crown says it is entitled to rely on the constellation of injuries as evidence of an intention to cause grievous bodily harm.
It would not be sufficient merely to establish that the accused deliberately caused the fracture of the femur with the intent to cause grievous bodily harm as that injury did not cause his death. The evidence is that the occurrence of the other injuries, such as the fractured femur and the head injuries, may have hastened his death, or at least in medical terms, be seen to in some way contribute to his death. However, the Crown accepts that findings about the occurrence of, for example, the fracture of the femur, without a necessary finding in respect of the stomach perforation, could not lead to the accused being guilty of murder. [2]
In the event that the Crown has not established murder, the Crown submits that I would find either that the accused was guilty of manslaughter by unlawful and dangerous act or manslaughter by criminal negligence. In any case, I would still have to accept that it was the act or omission of the accused which caused the death of the deceased.
Manslaughter by unlawful and dangerous act arises where the accused causes the death by a voluntary act that was unlawful and dangerous. The act must be one that a reasonable person in the position of the accused would have appreciated was an act that exposed another person to a risk of serious injury. [3]
The suggestion that the accused would be guilty of manslaughter by criminal negligence arises on a different basis to either murder or manslaughter by dangerous and voluntary act. Evidence was adduced from experts during the trial to the effect that with proper treatment at some earlier time, and even with the stomach perforation, fractured femur and head injuries, the deceased would have lived. A finding of criminal negligence would necessarily require me to make findings as to the deceased's condition at a certain time such that the accused should have sought treatment.

[7]

The accused's case

The accused submits that I would not be satisfied beyond a reasonable doubt that the Crown has proved the elements of the offence of murder or any of the lesser offences which may be available. Specifically, the accused submits that I would not be satisfied beyond a reasonable doubt that the insult to the deceased's abdomen, that is, the application of such severe force, happened after the deceased had returned home that night. I also could not be satisfied beyond a reasonable doubt that the accused did anything to cause that stomach perforation.
In respect of the fracture of the femur, the accused acknowledges that there is evidence that the deceased was able to walk and play before he left the neighbour's house. However, the accused submits that I would still not be satisfied beyond a reasonable doubt that she did anything to the deceased after his return home that night to cause the fracture of the femur, except for the possibility of how she responded to finding the deceased in his cot the next morning.
The accused says that the expert evidence establishes that it is reasonably possible that the insult to the deceased's stomach happened at least many hours and up to three days before his death, and points to the opinion of at least two of the experts on which she relies that, based on the histopathology, the stomach perforation may have occurred more than 10 or even 24 hours before death.
Further, the accused submits that having regard to the evidence as to the deceased's activities in the days before his death, there remains a reasonable possibility that something happened to him at some earlier time which might have led to the stomach perforation.
There is no onus on the accused to prove anything, but the accused did adduce evidence from three medical experts in her case.
It is important to observe at the outset that the process of considering when the injuries to the deceased happened and, in particular, when he sustained the stomach injury, involves an assessment of the clinical picture as presented by the deceased himself and others' observations of him, findings on post mortem and expert opinion and analysis of all of that evidence, including the histopathology. That is not done in isolation.
Of course, if an injury must have happened at a certain time as a matter of medical science, the necessary finding would ensue. However, the medical science is not so clear or certain in this case, and I can only make findings having regard to my consideration of all of the evidence. The accused says that it is not a matter of preferring one opinion over another, but the effect of the expert evidence is that there remains a doubt as to when the injuries occurred, and in particular the stomach perforation, such that the Crown has not discharged its onus and I could not convict.

[8]

A circumstantial case

The Crown case is a circumstantial case in the sense that according to the evidence adduced by the Crown, no person witnessed the accused perform the acts which the Crown says caused the deceased to suffer injury and led to his death.
As stated in The Queen v Baden-Clay ("Baden-Clay"), [4] the principles governing cases that turn upon circumstantial evidence are well settled. The accused cannot be guilty of murder unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": Peacock v King. [5]
Further, not only should the accused's guilt be a rational inference, but it should be the only rational inference that the circumstances would enable the tribunal of fact to draw. [6]
As identified in Baden-Clay, [7] for an inference to be reasonable it must rest upon something more than mere conjecture.
As observed by French CJ, Kiefel and Gordon JJ in Baden-Clay at [47]: "For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal." (footnotes omitted).
It is also important to observe that it is not encumbent on the accused either to establish some inference other than guilt should be drawn or particular facts that would tend to support such an inference. [8] At all times the onus remains on the Crown to prove the offence beyond a reasonable doubt.
All of the circumstances must be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. [9] I must not approach the evidence in some piecemeal fashion. [10]
In a circumstantial case, it is not necessary for the Crown to prove every fact on which it relies beyond a reasonable doubt. Yet there are certain facts so critical to the Crown case that they must be proved beyond a reasonable doubt. These are otherwise known as intermediate facts. In this matter, one such fact is the timing of the stomach perforation.
It is critical to the Crown case that the insult causing the stomach perforation occurred at the accused's home after she came home that night.
The accused did not give evidence but three electronic recorded interviews with the Police were admitted into evidence. Senior Counsel for the accused submitted in closing that I would accept that which the accused said in those interviews.
If I accept what the accused said in the Police interviews then I must acquit, that is, because the accused has not admitted that she did which could have caused the stomach perforation or other injuries. Rather, the accused says that she did not.
She was not asked about any possible explanation for the stomach perforation as, at the time of the interviews, it was not thought to have been the cause of death. However, she was asked about the femur, and in her second interview, suggested possible explanations that did not involve any intention on her part to injure the deceased. If I accept what she says in these interviews, then I must acquit.
Further, if I am uncertain as to whether to accept that evidence, then I would still have a reasonable doubt about her guilt and I would not convict.
I also observe that I may accept part of the evidence of any witness, including the evidence forming part of the accused's interviews, and reject other parts. I am entitled to and also must consider all of the accused's evidence, including her own observations of the deceased over the three days leading to his death.
Even if I reject part or all of that which the accused said in her interviews that is not evidence of the opposite, that being, her guilt.
If I reject what she said to the Police, I would put that part of her evidence aside and consider whether the Crown has discharged the onus of proof which remains on it. [11] I do not use my rejection of her evidence as evidence of her guilt.

[9]

Delay in prosecution

The accused seeks a warning under s 165B of the Evidence Act 1995 (NSW). Although s 165B(1) suggests that the section only applies in criminal proceedings in respect of which there is a jury, if I am satisfied that the accused has suffered a significant forensic disadvantage because of the delay in her being charged, I should take that disadvantage into account when considering the evidence.
As set out in s 165B(7), matters which may be regarded as establishing a significant forensic disadvantage include but are not limited to the fact that any potential witnesses have died or are now not able to be located and the fact that any potential evidence has been lost or is otherwise unavailable.
After close of the case the accused forwarded an agreed position and agreed draft direction, which I adopt and set out below. "There is a warning I must give myself relating to this issue of delay in this matter. The accused was not charged until 8 January 2018, nearly three years after the deceased's death. She then did not stand trial until January 2022. None of the delay was of the accused's making. It is most important that I appreciate fully the effects of delay on the ability of the accused to test prosecution evidence and bring forward evidence in her own case, to establish a reasonable doubt about her guilt. In this regard, I refer to the following specific difficulties encountered by the accused due to the delay in this matter: 1. The inability to test the evidence of Professor Lyons due to his death in June 2019; and 2. The loss of opportunity to bring forward and adduce evidence of the deceased's clinical presentation on Friday 20, Saturday 21 and Sunday 22 March 2015 specifically relating to the presence or otherwise of a stomach perforation. Had Professor Lyons been available to give evidence at trial, the accused would have had the opportunity to test his evidence regarding the topics such as those identified in the accused's written submissions discussed in Court on 9 February 2022 (T918) (eg. observations of all injuries vs. photography / xanthochromic staining of abdominal tissues / vagueness of descriptions of tissue sections). From 24 June 2019 it became clear that the deceased's cause of death was in fact the result of a perforation to his stomach. Had the precise cause of death been known from the commencement of the investigation of this matter, witnesses could have been specifically questioned regarding the presence or otherwise of a stomach perforation in the deceased on Friday 20, Saturday 21 and Sunday 22 March 2015. The witnesses' memory for details would have been clearer. The accused lost the opportunity to bring forward evidence that may have contradicted evidence in the Crown case or supported her case, or both. Because the accused has been put into this situation of significant disadvantage, she has been prejudiced in the conduct of her defence. As a result, I warn myself that, before I could convict the accused, I must give the prosecution case the most careful scrutiny. In carrying out that scrutiny I must bear in mind the matters just identified - the fact that those matters have not been tested to the extent that they otherwise could have been and the inability of the accused to bring forward evidence to challenge them further, or to support her defence."

[10]

The events of the morning of 23 March

The accused called triple-0 at 5.17am on 23 March 2015. An ambulance was dispatched from Coolah. The ambulance arrived at the house at 5.57am.
Ambulance officers Philippa Summer Lyndon-James, Haley Mestroni (nee Estreich), Michelle Lipscome and Shannon Rees (nee Skinner) attended. Ms Lyndon-James appears to have been the most senior of the four ambulance officers and paramedics who attended at the scene from the two different units. She was part of the first unit which arrived at the scene and commenced to treat or see the deceased at 5.59am.
When she arrived, the deceased was lying on his back on the floor of the main bedroom. The accused was providing CPR. Ms Lyndon-James immediately commenced oxygen therapy and airway clearance via a suction catheter. Ms Mestroni was in charge of the equipment. Ms Mestroni applied a defibrillator firstly at 6am and on a number of occasions thereafter.
According to Ms Lyndon-James, when she arrived and first examined the deceased, there was no pulse and he was not breathing. She observed facial bruising and his stomach was distended. She observed that the accused was quite distressed. There was no activity on defibrillation. She said that the attempts at insertion of a cannula were unsuccessful and that there was no haemorrhaging from the wound caused by the attempts to insert the cannula. She said that in her experience, haemorrhaging will occur on insertion of a cannula, even for some time after the heart has stopped. She said that there were two unsuccessful attempts to insert the cannula into the area under the elbow. She said that despite everything done, there was never any pulse or breathing detected.
The ambulance officers continued to work on the deceased at the house until 6.40am when they decided to take the deceased back to Coolah where arrangements had been made to meet the CareFlight helicopter. They continued to work on the deceased using all available methods to resuscitate him. When they arrived at Coolah, they met the doctor (Dr Coulton) and the intensive care paramedic (Mr Shiac-Wise) from the CareFlight helicopter. Again, further attempts were made to revive the deceased without success. He was pronounced dead at 7.30am.
Ms Lyndon-James' acknowledged in her oral evidence that the ambulance electronic medical record was a compilation of information provided by all of the ambulance officers. She also acknowledged that the minute-by-minute management and reassessment of record contained within the report was prepared by her back at Coolah, that is, immediately after treatment of the deceased had stopped. Although this was agreed to, it was not suggested that any part of that minute-by-minute record was inaccurate.
The ambulance report also contains a case description, which again is a summary of things seen, heard and observed by the ambulance officers. Ms Lyndon-James described in the case description that the child had fallen in the bath/ shower the night before, that he was unsettled when the accused put him to bed, and that the accused had heard him at approximately 3am but thought he was talking in his sleep and thus did not get up to look at him.
Ms Lyndon-James also said that before commencing to treat the deceased she noticed that his abdomen was cold to touch but his limbs were of a warmer temperature. She thought that the deceased appeared not to have had a heartbeat for some time. She said she found it difficult to compress his chest. She was taken to the record of observations in the ambulance report and confirmed that there were four finger marks present on the skin of the abdomen which she believed had caused the bruising and a further finger mark near the belly button.
She was cross-examined about the ambulance records. She was asked questions about the use of the tubes and the reference to gurgling. She confirmed that the gurgling was caused by the use of the equipment rather than any independent gurgling by the deceased. She agreed that she had been in physical contact with the child a lot during her attempts to treat him or revive him. She had made two attempts to intubate him. She agreed that she needed to manipulate him somewhat. She also said that she found it difficult to move his neck, which she had found unusual.
It is not necessary to comment further on the observations of the other ambulance officers. They are generally consistent.
Evidence was also adduced from both Dr Coulton and Mr Shiac-Wise, who were at the hospital when the deceased arrived. They could not revive him, and their observations were consistent with those of the ambulance personnel.

[11]

The triple-0 call

At the commencement of the triple-0 call and presumably when the accused did not believe that the call had been answered, the accused can be heard saying to Kevin, "They're going to think I bashed him."
The initial description provided by the accused to the operator was that she had a little 18-month-old foster child who had fallen over in the bath the night before. The accused said that she had heard him making noises during the night, and that she now thought he had thrown up and "swallowed it again". She also said "now he's not breathing very good" and that she had "just tried to give him CPR and now he's like he's full of air".
She was asked whether he was awake, and she said, "No, not sure". She was asked whether he was conscious, and she said, "No his eyes are open …" but Kevin interrupted and said, "He's not breathing". The accused then said "He's not breathing properly". She said he was cold and that both his mouth and hands were cold.
Kevin was heard to say in respect of the ambulance "Tell them to hurry he's not breathing". She responded, "He is breathing, but he's not breathing properly". She referred to shallow breathing and being worried that his eyes were half open. She said he had bruises "from the bath, from falling over and hitting his head." She then asked the operator, "Am I going to get in trouble for this?"
The operator asked her to put him on his back on the ground. She said "He was on the bed - is that alright? The operator told her that he needed to be on a firm surface, such as the ground. At one point, Kevin said that he could not hear the deceased breathing. This was again followed by the accused saying, "He just breathed", followed by Kevin saying, "He's not breathing much", then "He's not breathing, his belly's too hard."
The triple-0 call lasted 42 minutes. Much of that time was spent with the operator counting out so that the accused and/ or Kevin could do CPR. At one stage the accused said, "His bruises look heaps worse. Would that be because he's losing oxygen?"

[12]

The accused's first Police interview

The first interview commenced at 10:22am on 23 March 2015, within three hours of the deceased being declared dead. The accused's presentation was rather bizarre in the sense that she smiled and even cracked the odd joke with the officers. It was hardly the presentation that might have been expected given the circumstances.
In her closing address, Senior Counsel for the accused suggested that she was shocked and distressed. She did not appear to be, but she may have been nervous and anxious, and people react to adversity in different ways. It has often been said that in assessing evidence, a small amount of fact is worth a large amount of demeanour. By this it is meant that I should be careful in placing any real weight on a person's demeanour, and I do not do so.
The accused described the deceased as hyperactive but that he had settled since she had reduced his sugar intake. However, he still had behaviours such as "head butting things", and that he was "always hurting himself." She also said that he hated the bath, and that she had found out his brothers also did not like taking baths either.
She was asked about whether he'd had "a bit of a gastro". She said he had been throwing up, and that it had started when he went on the overnight visit to the new carers.
The accused then said that Child 3 had had it the week before, and that he had been sick for a couple of days. When she picked up the deceased on the Saturday, he had a sleep in the car and was "still pretty hot". She got him to drink water and gave him lemonade to cheer him up. He sculled it down. She put cold things on his neck. She said she gave him a bit of dinner that evening. However, on the Sunday he was "really tired and dopey and not himself." She also said that the deceased was quiet when they visited the accused's neighbour's house, and that usually he would have been running around with the other kids but was not.
She did not bath the deceased upon returning home because he hated the bath, so instead she changed him and put him to bed. However, he then threw up all over the cot. She got Kevin to take the sheet out of the cot and she gave the deceased a bath. She said, "that's when he started, like … he'd done it the week before as well".
She told the deceased that he had to lie down. He then started rolling. She said that he would go "around in the bath and hit his head". He also swallowed a bit of water. She said she noticed he had "the bruise and bumps on his head again". She said the bruising was in the same place as the week before.
She thought it was 10pm when she put him to bed again. She put him into bed after making his cot again, and at about 2am or 3am she heard him making some noises. She didn't take any notice, but she now thought that was when he was "throwing up and it wasn't coming out, it was going back down." When asked what made her think he was throwing up, she said that was what the ambulance had told her.
Kevin got up in the morning and then something woke her up. She said goodbye to Kevin and came back into the room. She checked the deceased "but he didn't look right". She tried to sit him up, but he was "floppy". She said that "he was still breathing, but not good." Kevin rang triple-0 immediately. She said she laid him on the end of the bed. She tried CPR herself, but only gave two breaths and "his belly went up".
She described how she found him, and then said she did the first two breaths because of his shallow breathing. After that, she said his tummy came out but it did not go back in. It just stayed that way, that is, out. She said it was probably because of all the air going in, but she did not know. She referred to having done first aid courses two or three times, but that it was hard when it came to the real thing and she panicked.
She mentioned that he had some bumps on his head previously. She was asked to identify where they were. She drew on a face one large circle in the middle of the forehead and four circles; two to the left and two to the right of that large circle.
She said that he bruised easily. She explained that he had thrashed about in the bath the night before, as he had done the previous week when she had tried to wash his hair. She described him rolling over in the bath as she tried to wash his hair and sit him up. She referred to bruising around the hips as being where she had tried to grab him while in the bath.
Nothing said in this interview would provide any explanation for the fracture of the femur or the stomach perforation having occurred at her house that night (that is, if they did). However, she was not asked about either of those injuries.

[13]

The accused's second Police interview

The accused attended for a further interview at the Mudgee Police Station on 1 April 2015. The interview was extensive (3 hours and 46 minutes).
When asked about whether the deceased had had any earlier health issues, the accused identified that she thought he walked funny and that he may have had a hip problem. She also said he had issues with his skin and that he reacted to being bitten by mosquitoes.
As I will discuss later, the accused rang the Burnside caseworker the next day and referred to her perception that he had a problem with his hips.
The accused was asked about the deceased being a bit sick in the days leading up to his death. Perhaps importantly, she said that when she dropped him off with Mr Johnson on Friday, it was different because he had a sleep in the car on the way and he usually did not. He was usually dancing. She said that when she got there she said to Mr Johnson, "I don't know he doesn't seem right and he's a bit hot you know and he seems really tired."
She was asked what happened once she got home on Saturday (having picked up the deceased). She said that he always wakes when the car stops and that he sat near his toys for a while. She kept feeling him to see if he was hot. She gave him a bit of food and water and she gave him a bath and some Panadol and then put him to bed. He did not vomit at all on the Saturday, but she said he was "very lethargic … like really tired".
She said that on the Sunday morning, the deceased was playing outside for a while with his toys and then he had a drink of water and Weetbix or toast. She said nothing out of the ordinary happened that day.
In the afternoon, she and Kevin were sitting out the front having a couple of beers. One of GN's children came and invited them over. They went over. She said she could remember sitting with the deceased and giving him some water, a banana bar and half of a banana. She got him to sit up on the lounge to eat it before he played with the other kids.
At one stage, she told the deceased to go over to JP and give her a hug. He went over and sat on her lap for a while, and then played with the little kids. The accused described them as the little Burnside kids, presumably meaning the other foster children who were staying with the other families. She recalled Child 3 playing with the deceased in the dirt. When asked about the sorts of things they were playing, she said Child 3 and the others were just running around and playing with dirt, and the deceased was just sitting there watching them. She described him as good but not his hectic self. He was a bit quieter. She said he did not have a temperature.
The accused then says she went home to get the deceased something to eat. JN had already given Child 3 some lasagne that JN had cooked. However, when the accused got back, Kevin said that the deceased had had some lasagne leftover from Child 3. She then only gave the deceased one or two chips and a fish finger because she was worried about feeding him too much.
She estimated that Kevin had had eight beers at the function, and she would have had five or six. She said out of ten she placed Kevin on the scale of four to five and herself on three, with one being sober and ten being "as drunk as you can be". She said she didn't check the time when she left. It could have been 9pm or later.
She was asked whether the deceased did anything to hurt himself at the neighbours or whether he became upset at all while they were there. She said that he did have a cry with the kids, but they were the little kids about the same age, and she did not see what had happened. He was playing with another boy about two-years-old.
She said that the deceased had not been vomiting at the neighbour's house. She said that he did not have any injuries on him when she came home from the neighbour's house. She said she hadn't noticed that he had done anything to hurt himself. Nothing happened on the way home in the Ute (it was only a little over 100m).
She was asked to describe what then happened in some detail. Again, she described that she changed the deceased into his pyjamas and put him to bed. She turned the bedroom light off. She asked Child 2 to run a bath for Child 3. She went out the front and had a smoke or a couple of smokes with Kevin.
When she went to go to bed, she did not turn on the bedroom light but says that she grabbed a torch to check on the deceased. She saw that he had thrown up in the cot. She took him out of the cot and put him in the bath. She said she didn't really look at how much vomit there was because she also felt sick herself, that is, because she had the bug too. She said she carried him to the bath. He was crying a little bit. She said there was still water in the bath from Child 3's bath earlier. She said it was hard to tell, but that the water level might have been 20 or 30 centimetres deep. She then put some more warm water in because the water temperature had cooled down.
She sat him in the bath and went to put his clothes in the washing machine (which was only two metres away). She said she already had the hose on. There was a hose on the tap as there is no shower in the premises. She said she went to wash his hair. He thrashed around. She sat him there for a while to try and calm him down. She ultimately said that he might have rolled four to six times. She agreed that when he rolled her arm was not underneath him because she had taken it out to scrub his hair and he was lying down at that stage. She then said after the rolling he got up on his knees and put his head in the bath and headbutted it. She thought the deceased's banging onto the bath was a seven or eight out of ten, with one being a light tap and ten being a full on, very forceful bang.
She stopped him rolling by grabbing him and sitting him back up. She tried to rinse out his hair in the same way, but he flipped himself back into the water. She thinks he rolled once or twice more. She said she grabbed him under the arms to pull him out. She stood him up, but he fell back. He was wobbly but she thought he was just tired. She says he fell back from a standing position and hit the back of his head.
She said that whilst she was trying to wash his hair, she tried to grab him because he was twisting around. He would turn his head to the side and swallow water, and then he would come up and turn his head right around and hit his head on the bottom of the bath. She said she would turn him around again, and he would do it again.
She said that he had done the same thing the week before. She said that he would act in this way nearly every time his hair was washed.
She took him to the change table and put his pyjamas on, that is, after the bath. She said he looked tired and weak from being sick, but she played with him "round and round the garden" and played with his feet. She would lay him down and he would lift his feet up. She agreed that she had a hold of his feet and she lifted them up and he was kicking his feet. She thought this playing went on for about five minutes. She thought he seemed alright, just tired and sick, so she put him to bed.
She said she should have taken him to the hospital then, but that he had done it many times before. When she put him to bed she said he was sooky, and she thought that was because he hated the bath. Kevin was asleep at the time.
The accused was asked where Child 2 and Child 3 were when she came back from a smoke. She said they were in bed.
She said Kevin was a heavy sleeper and he is deaf.
She said nothing else happened that night which would have caused any injuries. The only thing she could think of was grabbing the deceased in the bath. She could not think of anything that may have caused any injuries to his legs or front or back.
She explained how she went to his cot in the morning. She never usually does. She normally goes back to bed after Kevin leaves. She first thought the deceased was asleep, but soon realised that he wasn't. She picked him up. He was all limp. She shook him saying "wake up" and grabbed him. He wouldn't wake up, so she said she laid him on the floor, gave him two breaths and yelled out to Kevin.
She then said that she pushed on his belly demonstrating because she thought she had hurt him earlier by giving him two breaths, because it was at that point that "his belly went real big." Kevin asked what was wrong with his belly. She realised later that the air was not going into his lungs, and then she said he took one more breath, and that she thinks that was his last one. They then put the deceased on the floor. She saw there was stuff coming out of his mouth, and she wiped his mouth with a towel. She also said that she wiped his mouth earlier as he had split his lip or bit his tongue in the bath.
She was asked whether at any time she had dropped the deceased. She said, "I could have, no, no, I don't think so. I'm just trying to think that's the cot in the room and that's the hardest bit to remember. I remember shaking him … and grabbing him. I might even grabbed him by the head in the cot … I think I grabbed him by the head, by the head, face by the hands, body, just, got him, put him on the floor right there."
She was asked again did she at any time drop him. She again said that she could have but was not sure. Towards the end of the interview, the accused was informed of the injuries which had been found on post-mortem, including a fractured leg. She said: "could, when I (demonstrates) threw him, like when I panicked and got him out of the cot because, he couldn't have had a broken leg when I was playing the foot game he didn't …. It must have been when I got him out of the cot and shook him around (demonstrates) dropped and threw him, not threw him but."
She was asked again whether she threw him to the floor. She said, "I could have. Like I said, I had done it forcefully. I can't, just can't believe his leg was broken."
She later said she remembered grabbing him and grabbing his legs and holding them up to his belly to try and make him vomit. She thought that could have done it. She described how she pushed his belly up. She said "Must be. It's the only way it could have happened. I didn't bash him."
She had demonstrated holding him and trying to push him down and push his belly and she then said, "and threw him on the ground and put his legs up". She then said she squeezed his stomach hoping he would throw up. She said she lifted his legs up towards his head a few times. She said she lifted his legs up straight. She thought there was something wrong with his hips because he never walked right.
When further pressed for an explanation, she said, "Even when I got him out of the cot I must have chucked him around or forced him or threw him harder than what I thought. I was in a panic. That's the only way I can explain it. I don't know. Like I said I grabbed him … I don't know I panicked … I didn't want to hurt him."
It was put to her that Child 3 had said that both she and Kevin had smacked the deceased before on the forehead. She said, "[Child 3] is a looney that kid". She denied ever smacking the deceased on the forehead. The accused was pressed on how he could have broken his leg. The following exchange ensued Q: Did you do it? A: What? Q: Broke his leg? A: Yeah. Q: You did do it? A: I had to of. Q: How did you do it? A: I don't know. That's what I'm saying. Q: Did Kevin do it? A: No. No. Am I going to jail?
I do not take those statements by the accused to the Police as any admission that the accused broke the deceased's leg, but more of a statement that she could not explain it and there was no-one else who could have done it.
The second interview is replete with expressions from the accused to the effect that she did not know and did not remember and that she wanted to know herself what happened. She seemed to be saying that she could not believe herself that she would have done anything to break the deceased's leg. However, she was also adamant that the only time that anything could have happened to the deceased was in the bath or after she got him out of the cot.

[15]

Covertly recorded evidence

After being interviewed separately on 1 April 2015, Kevin and the accused drove home with Kevin driving. The Police must have obtained authority to place a device in the car as the whole of their conversation was admitted into evidence.
The accused submits that she could not have known that the conversation was being recorded. The accused submits that what she said to Kevin or Kevin said to her was consistent with what she had told Police. That is generally so.
Plainly, the accused was frustrated and angry about what had happened at the Police station. She told Kevin what she had told the Police, albeit over the whole of the journey in slightly different ways, but she certainly said nothing which could be considered as any sort of admission.
Having said that, her commentary was somewhat curious and, in particular, she volunteered that she did not tell the Police about TN, meaning she did not tell the Police about JN's comment to TN that he should not be rough and should not abuse he deceased. She said she didn't want to get him involved.
It is surprising that the accused did not tell the Police about what she said she had heard JN say to TN. It was plain from extensive questioning of her by the Police and indeed plain from what she said in the car ride home that she knew that the Police were seeking some explanation from her as to what might have happened to the deceased, and that the Police wanted to give her an opportunity to explain things.
It is difficult to understand why she was trying to protect TN (as she suggested to Kevin) bearing in mind, the effect of what she told the Police was that the deceased was fine when he came home, albeit he threw up in his cot.
I am not sure what trouble she thought TN might have been in if she volunteered that she heard TN's mother say not to be rough with the deceased. It was a rather unusual thing to volunteer to Kevin that she had not said and an unusual thing for her not to say to the Police if it had happened.
As it transpired, neither JN or TN agreed that such a conversation took place and neither of them said anything in their evidence which might lead me to conclude that TN had hurt the deceased in any way.

[17]

The forensic evidence

The Police found a green fitted sheet in the washing machine. This was vomit stained. Both Kevin and the accused say Kevin put this sheet in the washing machine before Kevin went to bed. There was also a bath towel in a bucket next to the cot.
Both the fitted sheet in the washing machine and the unfitted sheet which the accused said she put in the cot after the deceased's bath were found to have bloodstains. Based on DNA testing, it is likely that this was the deceased's blood. The bath towel found next to the cot was also tested and showed the deceased's blood.
It is difficult to understand why there would have been blood staining on the fitted sheet, as this vomit stained sheet had been removed by Kevin after the deceased vomited and before he was bathed. The accused submits that there is no aging of the blood stains and thus it is not possible to determine when the sheet was stained with blood.
It is also difficult to understand when the blood-stained towel was used. The accused told the Police it might have been placed there in case he vomited again. The accused also said that she was wiping slobber off his mouth when doing CPR.
Further, although there were blood stains on the second sheet consistent with the deceased lying in his cot and bleeding, the photos of the sheet in situ indicate a clean sheet that has no vomit.
The evidence does not permit me to make any finding about why there was blood on the first sheet and no vomit on the second sheet. However, it must be that at some stage the accused had used the towel to wipe blood from the deceased.
She did not mention that he was bleeding in the triple-0 call. She said in her third interview that he bit his tongue or had a split lip, but the examination of the tongue and lip was recorded as normal in the report. I accept that the accused is at disadvantage in not being able to ask Dr Lyons whether he would have recorded such things if they were present, and I make no finding about whether he had bitten his tongue.
I will now consider the evidence of the deceased's movements and behaviour in the period prior to his death.

[18]

Kevin

Kevin gave a statement to the Police on 25 March 2015 and participated in a further interview on 1 April 2015.
Kevin generally worked away from home Monday to Friday. He agreed that most of the caring was done by the accused. He was asked whether he had ever given the deceased a bath. He said he had. He said: Q: Can you tell me about how that worked? A. Yeah. I just gave him a bath. Like, give him a bath and slowly put the bucket on him of water, because he didn't like the water over his head or anything like that there, but, yeah, just gave him a bath and he seemed all right. Good to me.
He said he never smacked the deceased and never saw the accused do it. He said the deceased could walk and run around. He recalled seeing him fall over from time to time. He would put his hands out and get back up. He said that if the deceased hurt himself he would cry.
He only saw one bruise on the deceased which was on his eye above his forehead at some time. He was told by the accused that he got that by falling over. Plainly there is a significant divergence between the accused and Kevin on the presence of bruising.
In answer to the question whether he noticed any injuries on the deceased he said "No. Not sure. No."
He said he remembered that at GN's place the deceased was playing around with the kids and kicking the ball, playing games and everyone was just around him cuddling him up, just having fun with him. He thought that when they left the gathering, the deceased was like a bit crook still but no different to when he arrived. He stayed in the car finishing half a can of beer and the others went inside. He was in the car for 15 to 20 minutes.
He said that when he went inside the accused was changing the deceased because he spewed up a bit. He grabbed his clothes and put them in the washing machine and then went to bed and went to sleep. He agreed he could have grabbed the sheet off the cot as well. He didn't put the washing machine on.
The accused and the deceased were in the bathroom when he went to bed. When he last saw the deceased he was in the bathtub. There was water because she was bathing him. There was water in the tub but the taps weren't going. He didn't see the accused using the plastic bucket.
When asked about his state of intoxication, he said he wasn't blind drunk. He was only 6, 7, 8. He said the accused would have been the same in the sense that was not too drunk When asked whether she was 8 out of 10 he said she could have been different. He wasn't sure. It was nothing like falling down or anything.
He said that when he saw the deceased in the bath he was happy. He was sitting in the bath. He did not see any injuries on the deceased at that time.
The next morning he got up and the accused came out and said there was something wrong with the deceased. He raced in there and saw he was lying on the bed. They were both in shock. He said ring the ambulance straight away and the ambulance told him how to do the CPR and that's what he was doing. He was doing the compressions. The accused was helping there as well. She was talking on the phone. He said he was blowing air into his mouth. He thought a little air would come back out. He thought the deceased's tummy was up a little bit.
When asked about the deceased's face he said it was like just going to sleep and his eyes were weary, staying in the same position. He put his ear to the deceased's chest and he thought he heard a little heartbeat. He did what the triple-0 person said to do.
He was asked whether he had observed any fresh bruises on the deceased when he saw him that morning. He said, "I seen a couple on his ‑ like, just one bruise on his back".
He was asked again whether he had new bruises on his face and he said "No".
He was asked whether he remembered the accused speaking to Child 2 about what to tell the Police and he said "No".
He was asked about whether he knew how the deceased got the fracture of his thigh bone or injuries to his anus or bruises to his stomach. He said "No".
He was asked whether he looked at the deceased's body before that gathering at the neighbour's and he agreed that he could not say whether they were fresh or not.
In cross-examination he agreed that nothing happened on that Sunday which was unusual. He didn't really remember who was there. He didn't go into the neighbour's house. He was sitting watching the TV screen at the back. He wasn't watching how much anyone else had to drink and it was not possible for him to say how much anyone else had to drink. He couldn't remember who gave the deceased the food, that is, lasagne and chips at the neighbour's house. He remembered country music being played when they left.
He recalled that when he first came into the house, he saw the accused changing the deceased on the change table. He went back out to finish his can of beer. When he came back in they were in the bathroom. He recalled she was using wipes to clean him on the change table. He then closed the door when he went outside. He didn't recall the accused saying anything about being annoyed about the deceased being fed twice that night. He recalled that when he went into the bathroom the accused told him that the deceased had spewed. He got his clothes and the sheet and put it in the washing machine.
It was suggested to him that he never washed the deceased's hair. He said he had a bucket when he gave him a bath, he would put a bucket on slowly over his body. He said he was not sure whether it was over his head and then said he hadn't washed his hair or shampooed his hair.
He recalled that the accused had spoken to him about the deceased splashing around and rolling around in the bath. He agreed that the accused had said he would get bruises from time to time because he thrashed around in the bath and that's why they used a little container or bucket to pour water slowly over him. He was taken to the Police statement where he said he'd seen him do it in the bath, just turn around and hit himself around; he goes mad in the bath. He thought he was frightened in the bath and he was concerned. He was asked whether he had done that for him at some stage and he said, "Just a little not much though".
He didn't hear the deceased screaming or crying when he went to bed or throughout the night.
He was asked about what happened during resuscitation. He was doing chest compressions. He said he didn't have his boots on at that stage. He was pretty sure he never had boots on. He said he had never seen the accused hit the deceased.
There was some difference in Kevin's evidence from examination in chief to cross-examination, particularly in relation to the deceased's behaviour in the bath and bruising. Further as established in cross examination I doubt that he was in any real position to comment on how much anyone else had drunk. However, nothing said by Kevin to the Police or in oral evidence might suggest that the deceased was injured before he came home or that the sort of bruising observed the next morning was present the day before.
Further his observations of the deceased's head banging were vastly different in particular to that which the accused described in her third interview. It was not suggested to Kevin that he had any involvement in any injury sustained by the deceased. Indeed, he was not asked whether he might have trod on the deceased the next morning a suggested by the accused in her third interview.

[20]

Child 2

Child 2, the accused's daughter, was 13 as at the time of the deceased's death. She was at home over the weekend of 21 and 22 March 2015. She attended perhaps for a brief period of time at the function next door on the afternoon of 22 March. She then visited her friend and spent some time with her friend at a different place. She was inside the house at No. 5 the whole time between the deceased returning home around 9pm and being woken the next morning after the ambulance officers has arrived.
She spoke to specialist officers within the Police within a week after the events. Her interview was recorded.
She said she walked over to her Uncle's (GM) house on the Sunday afternoon and stayed there around half an hour. She then went off to her friend's grandmother's house. She thought she returned to her Uncle's house around 7.30pm or 8pm. She may have watched some football but professed to be unsure as to the details. She was uncertain who was there.
She remembered watching a bit of football. She thought the deceased was just playing, walking around and might have been walking around with the accused. He did not appear to be hurt or sick. She did not think he was crying. At some stage, she walked home. She thought it was still light although she agreed in cross-examination that it was getting darker or dark. Expert certification suggests that it would have been dark by 8.34pm. She thought everyone was home when she arrived home.
In the interview she gave on 28 March 2015 she said that after she got home she helped her little brother have a bath and then went to bed. She did not know what time she went to bed but thought it may have been around 9pm or 8.30pm. When she went to bed, the accused was changing the deceased into his pyjamas. In her interview she said that after she went to bed she went to sleep. She woke up the next morning when she heard a lady talking and the ambulance was there. She says she slept all night. She did not wake up at all.
When asked what happened to the deceased after the accused was putting his pyjamas on, she said she did not know because she went to bed.
She was asked about how the deceased went in the bath. She said he used to be scared of water. He didn't like water on his head or anything. He didn't like bubbles. She said the accused told her because he didn't like bubbles he tried to shoo them away. She said he would be silly not wanting to go in the bath. She said the accused had told her that.
When asked further about what she observed about the deceased being sick she said she didn't see that he was sick. When asked about the deceased generally she said he didn't cry much but she had seen him cry when he wanted something. He was clumsy and, if he fell over, he might have a little grizzle but he was pretty tough. It didn't really hurt him when he fell over.
She didn't see any injuries or anything wrong with him and when asked whether he had any bruises on him, she said that he usually had bruises because he was clumsy. When asked about any bruising on the face she thought he got like a bruise on his forehead because he was always hitting his head, like when he was running, or he would walk into tables and stuff.
Having regard to the answers she gave during the interview in the week after the deceased's death, the only conclusion could be that she saw or heard nothing out of the ordinary, either at the neighbour's house or at home that night. Further, it might be surprising that if there was screaming that she did not hear it, bearing in mind that the positioning of her room within the house and the fact that there was an open window through which she might have heard some noise.
Child 2 gave oral evidence. She is now 20. She was asked whether the version she gave to the Police was actually what happened. She answered "Not entirely. Up until like getting home was the truth or what I could remember at the time, but I did leave out some parts".
She explained that on the way to be interviewed by the Police (five days after death) the accused had asked her not to mention the bath to the Police and she thus did not. She was asked: Q: Did you speak your Mum about what you should tell the Police? A: Yes. She said to leave out the bath. Q: Did you speak to her just those short number of words, or was it more than that when you spoke to her in the car? A: I can't recall the whole conversation, but I remember being told to ‑ that in the interview I leave out the bath.
She agreed that she did not mention the bath in the interview except Child 3 having a bath.
She was asked about her earlier comments about the deceased hitting his head. She said that she recalled a couple of instances he'd hit his head, like, for fun and it was not extremely hard. There were times he would do it with his forehead or like the back of his head. She said she observed more than one but not more than 10 between November 2014 and March 2015.
She confirmed that when she first came home the accused was at the change table with the deceased. If, as she says, she came home in the light, that must have been before 8.30 pm Child 3 was watching TV. She then bathed him and probably took about 5 minutes. She said after bathing Child 3 she went to her room and got changed. She needed to go to the toilet. She went out and saw that the accused was bathing the deceased so she went back into her room. She referred to the accused being upset because the deceased had been fed twice. She heard her saying it and she wasn't happy about it.
She was asked whether she was aware that the accused had been drinking that night. She said yes. She was asked how she was aware of that and she answered, "Because when she drinks she can get aggressive and just going down to Graham's to watch the footy is usually when drinking occurs."
She was asked "When you have said that you needed to go to the toilet later and went out to the bathroom, and saw that the bathroom was occupied with the deceased being given by a bath by your mother .. what did you see at that time? Answer: "I saw her aggressive at him, like, towards him, and when he was standing she just sort of, like, pushed him to be sitting, a bit rough".
She was asked: Q: What part of [the deceased]'s body did you see your mother …have contact with, in what you've described her pulling him down? A: Around the waist.
She did not remember the deceased making any noise. She thought it was about 30 seconds she was there before returning to the bedroom.
She was then asked: Q: When you returned to your bedroom, did you hear anything? A: The yelling, I'm pretty sure it continued. Q: Who was yelling? A: Mum. Q: What were the words, if you can remember? A: I don't remember specific words. Q: What did you do? A: I sat for a bit, and then I went to my little brother, and I asked him if he could go tell mum to stop yelling at [the deceased]. Q: What did … do? A: He rolled back over and went to sleep. Q: What happened next? A: I waited until it quietened down, and I heard my mum go out the front, so I got up and went toilet. … Q: What did you see? A: When I got in there I saw that [the deceased] was still in the bath. Q: How was he positioned in the bath? A: I don't remember, but he was looking up at me. Q: Was he making any noise, or moving? A: No. He was blinking. Q: Was there water in the bath? A: I don't remember. Q: Did you use the toilet? A: I used the toilet. Q: How long were you in the bathroom on that occasion? A: Probably a few minutes, a couple of minutes.
She says she then returned to her room and went to sleep. She woke up the next morning and she was told by the accused that the deceased had gotten vomit in his lung and caused him to stop breathing.
She identified that on 5 February 2019, she attended at the Police station and provided a typed statement to the Police. She had made some notes the day before being 4 February 2019.
She was asked: Q: When you went into the bathroom and used the toilet, you've said that you saw [the deceased] in the bath and his eyes were blinking. A: Yes. Q: Did you observe any injuries? A: Yes. Q: What did you see in relation to his face or any area around his face? A: I remember his face having, like, small cuts on it, and his forehead having a bump on it, and his eye, like ‑ well, yeah, like, his eye area having a bump on it and bruises. Q. Had you seen any of those bruises on [the deceased] earlier that day? A. He often would have bumps and bruises, but I remember when I saw him in the night, like, being shocked because he had more than what he'd had previously from any bumps and bruises he'd had earlier. Q. [The deceased] was naked in that bath; is that right? A. Yes. Q. Did you see any other injuries to any other part of his body? A. Not that I remember. Q. Can you describe anything about either of his eyes, whether they were injured? A. There was a bump sort of on ‑ around, like, his eyebrow area, and it was making one of his eyes a little squinty.
Child 2 was cross-examined. She agreed that the deceased was clumsy and that he would fall over; that he would occasionally cry depending on whether he was hurt or not. She agreed that he would hit his head both accidentally and for fun.
She didn't remember whether the door was open when she heard her mother talking to Kevin but agreed that there was a window along the wall which was always open. She was taken through her observations of the deceased in the bath in terms of the accused's actions. She said that she saw the accused push the deceased down in the bath and that she did it roughly. She did not recall the deceased making any noise when she did that. She agreed that when she heard the door close it possibly could have been Kevin rather than her mother going outside.
It was put to her that when she went to the bathroom the second time she passed her mother coming out of the bathroom and her mother said "He's right, just leave him there, I'll be back in a minute." She didn't remember that. She did not remember seeing her mother at that time. I am unsure of the source of that suggestion. The accused did not mention her daughter seeing the deceased in the bath in any of her interviews but she must have known that she did as she asked her not to mention it to the Police.
It was put to her that when she went back into the bathroom the deceased was sitting up in the bath. She said she couldn't remember whether he was sitting in the bath looking at her or like laying and looking at her. It was suggested there was no water in the bath. She said she did not remember. She agreed he was not crying. When asked how he was moving she said he was just looking up at her. It was put to her that she told the Police he was moving but she said that he was breathing and looking up at someone.
It was suggested to her that the accused had told her not to tell the Police about the bath in her bedroom rather than the car. She said she thought it was in the car. She agreed she never talked to the accused about what happened that night and she didn't leave anything else out of the interview.
It was not suggested to Child 2 that her mother had not asked her to leave out the bit about the bath. It was not suggested that she had not seen the deceased in the bath on those two occasions. The only real challenge to her evidence related to where she was when her mother told her to leave out the bath and what she meant by the deceased was moving in the bath. It was not suggested that her evidence was fabricated or that there was some reason why she had come forward after some years.
The significance of the further information provided to the Police and the further evidence given is that: 1. At least at some point prior to the interview, the accused told Child 2 not to mention the bath to the Police; 2. Child 2 believed that the accused had been drinking because she acted aggressively after she had been drinking; 3. Child 2 saw the accused acting roughly towards the deceased (using Child 2's words) by grabbing him around the waist and pushing him down into the sitting position. It follows that at this time the deceased must have been standing in the bath before being forced into the sitting position; 4. The accused was yelling at the deceased for at least some period otherwise Child 2 would not have heard her yelling when she was in the room with the door closed and would not have felt it necessary to ask her little brother to go and ask her mother to stop. However, she was uncertain when she returned to the bathroom to go to the toilet whether the deceased was sitting or lying down, but she was adamant that the deceased was just looking at her blinking and that she observed a bruise around the eye.

[22]

Child 3

The accused's third child was five at the time of the deceased's death. He was in the home with the accused and the deceased that night. He is now 12. He participated in an electronically recorded interview with specialist officers on 28 March 2015. That interview was played in Court. Child 3 gave evidence by AVL. He was asked some further questions as evidence-in-chief. During his Police interview he presented as a five-year-old might present.
I reviewed the video and considered the transcript. Child 3 volunteered that the accused used to smack the deceased on the forehead when he got in trouble. He was not asked the question in such a way as to suggest the forehead. Child 3 also volunteered that Kevin used to smack the deceased.
In further examination-in-chief, Child 3 was asked whether he ever saw the deceased cry. He said that he did, usually when he would get in trouble. He said he saw him crying more than once. He had no particular memory of that. He was further asked: Q. During your interview, you also said things about your mum smacking [the deceased]. Do you remember anything like that? A. I think I remember one time. Q. What happened? A. I don't know what he got in trouble for, but I remember him getting hit on the arm. Q. What part of his arm? A. I don't know exactly what arm. Q. What did [the deceased] do? A. I don't know. Q. What did he do after he'd been smacked on the arm? A. What he would do when he'd been smacked? He would usually get upset. Q. What would he do when he got upset? What do you mean by that? A. He would cry. Q. Do you remember the ambulance people being at the house the morning that [the deceased] went away to hospital? A. I remember Issy waking up and we went outside early in the morning and the ambulance was there, and then mum said she will call us later on to see if he was alive or not.
The way in which the evidence emerged during the initial interview within a week of after the deceased's death tends to suggest that it is likely to be true. He volunteered, without the words being suggested to him, that the accused would smack the deceased on the forehead.
The accused submits that consistent with s 165A(2) of the Evidence Act, I should remind myself that the evidence of Child 3 may be unreliable and that I should exercise caution in determining whether to accept that evidence and the weight which should be given to it. It is not clear to me that child 3's statement about the smacking is likely to be unreliable.
However, I would exercise caution before accepting Child 3's description of what the accused used to do to the deceased, particularly as by the time he came to give evidence during these proceedings, he seemed only to remember one time when the accused had smacked the deceased.
The Crown did not suggest that evidence of those isolated incidents of bruising on his face observed by other persons should in some way be evidence of a tendency of the accused to hit the deceased or that I should make a finding that those earlier reports of observing a bruise on the deceased's face, for example, from Dr Argwal, the caseworker and Mr Johnson, should be accepted as having been caused by the accused rather than accidentally by the deceased. I make no such finding.
Further, whether Child 3 might have witnessed the accused smacking the deceased on the forehead or other places is of little significance in determining the issues in this matter. The injuries to the deceased's head and face were much more significant. The extensive bruising to the deceased's face and other parts of his body was not caused by him being smacked as that term would be commonly understood.
I will now consider the evidence as to the deceased in the days before he died.

[23]

Visits with the Johnsons

Mr and Mrs Johnson both gave evidence. Mr Johnson gave a statement to the Police on 27 March 2015.
They had one child of their marriage, AJ. AJ gave brief evidence but could not remember anything of substance. They had also taken in three foster children over the years being OAF, JE and HK. JE and HK are the deceased's half-brothers. JE and HK had come to live with the Johnsons in 2011.
The Johnsons were regular Churchgoers in Dubbo. From time to time, they saw the deceased's mother, with the deceased at the Church in 2014. They observed the deceased to be running around, perhaps a bit hyperactive and perhaps getting into mischief.
In December 2014, the Johnsons agreed to take on the deceased on a permanent basis but needed a few months to get organised. Prior to the deceased's death, two transition visits had been arranged.
Firstly, on Saturday 14 March 2015, the Johnson family met with the accused and the deceased at the Dubbo Zoo playground. Secondly, on Friday 20 March and Saturday 21 March, the deceased stayed at the Johnson home. On that second visit, Mrs Johnson was away for work in Sydney.
Photographs were tendered of the children at the Dubbo Zoo on 14 March 2015 and then photographs taken by JE of the deceased on 21 March 2015. Whist there is a danger in lay interpretation of photos, no-one suggested that the photos taken on 20 March show any bruising to any area of the deceased's face, albeit his hair covered parts of his forehead.
On the first visit at the Dubbo Zoo, Mr Johnson noticed a bruise on the deceased's forehead, a little larger than a 50-cent piece. It had a lump that appeared recent. He asked the accused about it and she said that the deceased had fallen over the day before. He accepted that.
The accused had also told Mr Johnson that the deceased had small bruises on his back. The accused said something about the deceased sleeping on his toy, Elmo, and the bruises may have been caused by the hard eyes of the soft toy. Mr Johnson did not personally look under the deceased's shirt that day, i.e. 14 March.
A week later, the accused arranged to meet the Johnsons at the Japanese Gardens in Dubbo. Mr Johnson thought that the deceased was a bit quiet. He could see he was a bit tired and looked a bit glazy in his eyes. He still had a bruise on his forehead. The lump had gone down.
Mr Johnson put the deceased in the car and transported him to their home outside of Dubbo stopping at a school and Bunnings on the way.
He picked up the deceased and put him in his car seat. He was holding the deceased from time to time. He did not notice the deceased being in any discomfort.
Whilst they were at the school assembly, the deceased vomited on him. the deceased did not cry although he looked a bit pale. He rang his wife in Sydney. Mrs Johnson suggested he give the deceased some baby Panadol which he did. The deceased had a temperature of 39.5 degrees celsius. He put him into the cot at their home around 7.30pm. He did not give him any food or milk but he took water. The deceased played quietly and went to sleep. He slept until 8am.
The next morning the deceased ate toast and drank some water. He kept the food down. He seemed better. His temperature had dropped. He played with the kids outside. Mr Johnson gave the deceased lunch (a sandwich).
JE walked him down to see the cows (only 10 metres from the house).
The possibility of being kicked by an animal is one possible explanation for the stomach perforation but nothing emerged from either the evidence of JE or Mr Johnson which would suggest that that occurred. Mr Johnson was watching them and JE was with the deceased. There is no evidence that they ever got close enough to the cows for this to occur or that there was any reaction from the deceased which might suggest it did occur.
Mr Johnson recalled dropping the deceased back to the accused and mentioned he had been sick but did not recall what the accused said about this.
Mr Johnson identified the markings on the deceased's body in a Police diagram. He must have observed the old bruises on the back during the second visit. The only other bruise he identified was the one on his forehead.
There was extensive cross-examination of Mr Johnson about what he was doing around his house and how there were two un-renovated balconies and the nature of the property and how the deceased was playing with the older children.
He was doing some building work around the house, including putting in a pipe from a veranda up into the roof.
He was questioned about his observations of the deceased's behaviour. He agreed that he seemed to be a very active child, getting into everything, perhaps more than normal.
He said that after he had picked up the deceased on that Friday 21 March, he had taken him to the Assembly Hall Church. The deceased had thrown up liquid over him. There did not appear to be any solid food. He took him home but he did not put him in the bath as he had been told that he did not like the bath.
He put the deceased down for bed around 7.30pm. He slept all night. He woke in the morning and had a dirty nappy but not a runny nappy.
He observed four to five bruises on his back. They were brown in colour. He thought they were disappearing. He agreed he gave some water and food to the deceased which the deceased took. He agreed that there was only one bruise to his forehead. He agreed that the deceased had been playing with other kids but he said that there would have only been a very short period, perhaps minutes where he was not under his direct supervision. He was questioned about building materials and half built verandas around his place.
There were certainly places on this property where the deceased might have got into mischief or hurt himself (perhaps like most properties) but it was not suggested to him and he was not asked about any event where he had observed the deceased fall or bang into anything. There is no evidence of a trampoline or any other such thing which might have caused a severe impact to the deceased's stomach should he have fallen.
He agreed that he and his wife had fostered 25 children but left it to his wife to keep all the records.
Mrs Johnson gave evidence of observing the bruise on the deceased's head about the size of a 20 cent piece as well as a bump during the visit to the Zoo on 14 March. She asked the accused about it and she said he fell over and bumped his head. She did not think it was anything out of the ordinary and accepted it. She observed the deceased trip over a couple of times which she thought was normal. She observed that he always braced himself with his hands so his head would not hit the ground.
JE gave evidence. He had only provided a statement to the Police in 2020.
In 2015 he was 11 years old. He recalled that when they went to the Zoo, the deceased had a bruise on his forehead. He heard that his carer (the accused) said that he had fallen over and hit his head on the concrete. JE recalled that the deceased had stayed again a few days before he died and that Mr Johnson had told him that the deceased had been sick, that he had a cough like the flu. However, he recalled him playing in the cot with the toy car and the next morning being Saturday morning, he seemed to be a bit better.
JE walked him down to see the cows. When asked in cross-examination, JE said that Mr Johnson was watching them from his position at the house (10 metres away when they visited the cows).
In cross-examination he was taken to his Police statement where he told the Police it was a small bruise on his forehead. JE agreed that the kids used to play outside. There was play equipment and lots of outside play at the Johnson premises. He remembered playing outside with the deceased that Saturday morning. It was put to him that he had some issues with HK and it was suggested that HK might like to hit or kick him or punch him. He did not generally agree with this, suggesting it was more like just brothers mucking around.
Statements were tendered from two of the other children at the Johnson house that weekend. They were only taken in 2020 and these persons could not remember anything of relevance.
I must assess the evidence as to what happened with the Johnsons critically having regard to the forensic disadvantage to the accused already identified. However, there is nothing about the evidence of Mr and Mrs Johnson in particular which led me to believe that they might be uncertain about any important aspect of their evidence.
It is important to recognise that any trauma to the deceased's stomach which could have caused the perforation must have been painful. Falling over would not suffice. Mr Johnson was not asked whether he ever saw the deceased holding his stomach or seeming to be in pain but, when he was holding him or picking him up, he seemed not to be in any discomfort.
Nothing emerged from the evidence of Mr and Mrs Johnson and JE which would suggest other than that during the two visits with the Johnsons in March 2015, the deceased was treated and cared for properly with appropriate supervision.
Whilst Mr Johnson was working on the veranda on the Saturday morning he was still supervising the deceased and there is no evidence that he wandered off with one of the children.
He was certainly in the company of 4 other children older than him but there is nothing in the evidence at all which would suggest that he had any accidents or was mistreated or mishandled by anyone during these visits with the Johnsons.
When Mr Johnson handed the deceased back to the accused on the Saturday, he was better than he was the day before; he had taken food and there was nothing about his behaviour that would have suggested he was suffering from any pain.
In particular, Mr Johnson was able to place him in his car seat in the usual way. He had only vomited once whilst with the Johnsons and that was on Friday on the way home from being collected in Dubbo.
It is notable that the accused told the Police that she had thought that the deceased was not right and hot when she dropped him off. The deceased vomited on Mr Johnson on the way home. There is no possibility of the deceased having suffered a significant trauma to his stomach on the way home unless Mr Johnson punched him which was not suggested and which I accept did not happen.
Of course it might always be possible that a child could have had some accident or injury when playing outside or mixing with other young children but there is no evidence that that occurred whilst he was under the care of the Johnsons, except that the time he spent with the Johnsons coincides with the timeframe during which the experts suggest the stomach perforation could have occurred.

[25]

Events of 22 March

During the afternoon of Sunday 22 March, various people from the village attended at the premises of GN and JN to watch a rugby league game which commenced at 4pm. I will call their premises No 2.
No 2 is approximately 100m from the accused's house and there is a small vacant paddock in between. I attended at a view of the area and houses on the first day of the trial. Whilst the appearance of the house and land may not have been identical there was a small house and shed and at least one caravan on the land in 2015. There were some old cars in the backyard.
A trampoline may have been there at some time but GN said there was no trampoline there in March 2015.
As happened from time to time, GN had erected a large screen in his backyard and invited the neighbours and some relatives to attend. People came and went at different times during the afternoon and stayed for different periods, including children.
There may have been up to 22 people who attended but that number includes all the children. There were 6 from GN's family and 5 from the accused's family and 5 from another family. By my calculations and subject to the possibility of one or two other persons being present, all of the adults and children above the age of ten who were there at any stage gave evidence and indeed were spoken to by the Police in the weeks following the deceased's death. None were asked in cross-examination whether they saw the deceased holding his stomach at any time.
Whist I accept that the accused was at a forensic disadvantage as agreed to by the parties and adopted by me, there is no suggestion of any relevant lay witness not being available and all of them were known to the accused and/or related to Kevin. The time when they provided statements to the Police was not always identified but some were spoken to very proximate to the time of death. GN gave a statement on 25 March 2015. Persons such as JN in particular gave detailed evidence about the deceased.
It is also important to emphasise that whilst no doubt some of the people who were there that Sunday afternoon were drinking and perhaps drinking a fair amount, there is no evidence that anyone was really drunk or misbehaving in some drunken way. I did not have any impression that the information they provided to the Police in the period after the deceased's death was likely to be made up or slanted in a certain way. The witnesses gave their evidence in a matter of fact way.
Prior to attending at their neighbour's home, it had been a usual day for the accused. She attended to chores and other things around the house. At some point during the afternoon, she and Kevin were having a beer when MN (a child) came over and asked them to come and watch the game. The accused had probably consumed two beers before leaving for the neighbour's house. For reasons which are not clear, the accused, Kevin, Child 3 and the deceased all went in the car even though it was only about 100 metres to the neighbour's house. Child 2 walked over at some point.
Over the next few hours, people came and went from "No. 2". There was an inflatable screen in the backyard where those interested in the game sat and watched the game. There was a shed in which a number of people who may not have been interested in the game, sat and chatted. People were generally drinking beer, although one or more might have been having Rum & Coke.
Some left after the game ended at 6pm. Some arrived halfway through the game. The accused, Kevin, the deceased and Child 3 were some of the last to leave.
No-one noticed anything unusual happen that afternoon. No-one noticed the deceased come to any harm.
A number of persons were asked whether they harmed the deceased or saw anyone else harm the deceased. All answered in the negative. Indeed, the evidence was generally to the opposite effect. He was observed to be sitting on people's laps such as JN, running around, kicking the football with other kids, playing with older kids and behaving like any normal nearly two-year-old.
While some noted that he seemed a little subdued, the accused explained that he had been sick. KN (junior) observed him having a runny nose but didn't think much of it. He thought he was normal but said he seemed a bit quiet. He said in cross-examination that you could see that he was little but crook with a runny nose and stuff.
MN, who was 10 at the time said he saw the deceased eating food and kicking the ball. He said he put food on the plate for the deceased and gave him a drink. He said they were playing tip and the deceased was running and playing tip.
JN is Kevin's sister in law. Her evidence was quite detailed.
She said that the deceased seemed fine but he was a bit quiet. He was cuddly like he always was. The accused told her that the deceased was a little quiet because he had been sick.
JN observed him to be getting up and down from people's laps. She did not notice him being in any discomfort. She said she saw him copy the other kids dancing. She did not observe any injuries on him and did not observe him to behave in any way that made her think that he was uncomfortable or ill or in pain.
She observed her husband GN call to the deceased and ask for a cuddle as the deceased was going home. Precisely when this was is uncertain but it must have been close to when the deceased went home.
She said he was quiet later in the evening but she said he was tried. He was sitting on her. She said he had a little bit of a temperature but she was not overly concerned. She did not notice any scratches or bruises on him.
LR said that the deceased got on the table and was singing and dancing, albeit during cross-examination he could not identify when that was.
JP was another neighbour. She recalled the accused feeding the deceased some finger shaped soft snacks and a banana. She recalled that he was sitting on the lounge next to the accused. He then got up and started wandering around and playing with her kids. They were playing in the dirt. She told the Police that she observed a little bruise on his forehead and it may have been a little lump. It was dark blue/black in colour and barely noticeable. It was only the size of a fingernail.
She said the deceased came to sit on her lap. He was trying to sing to the music. He was not upset or crying. He was grinning. She said he was like dancing by bopping his head.
JD left at half time but recalled the accused giving the deceased a snack bar and a banana which he ate. She said that other than being a bit sick he seemed fine. She did not notice any bumps or bruises on him.
GN, Kevin's brother, said that the adults all had a turn at picking up and nursing him. He recalled the deceased jumping off his lap and walking off. He recalled him bopping to the music by turning his upper body. He went to bed because he was drunk. The accused was there at that point. He was asked about seeing TN and the deceased walking off into the house together. He said he did not see it.
It was not put to any witness that any particular person had harmed the deceased or put in a positive way that the deceased had been harmed. I am not suggesting that it should have been or on the evidence it could have been because having regard to the accused statements to the Police even she did not observe anything happen to the deceased which could account for the injuries with which he was subsequently discovered to have sustained.
There was a theme to cross-examination relating to the presence of a caravan in the yard at No 2 and the presence of some younger persons in that caravan, perhaps raising the possibility that something might have happened to the deceased inside that caravan or at some other place on the property where he might not have been seen. Whilst questions were asked about the possibility, questions are not evidence.
However, it is clear that no one person could account for the deceased's movements every minute whilst he was at the neighbour's house and the witnesses agreed that their evidence about what they saw or heard must of course be limited to what they saw or heard.
Perhaps the most direct cross-examination was of TN who lived at No 2. It was suggested to TN's mother, JN, that she had said something to TN, such as that it was alright to play with the deceased but he was not to be rough and not to abuse him, leaving open the inference that he may have been rough or abused the deceased during the afternoon. TN was 15 at the time. He had hearing difficulties. He gave oral evidence. He answered many questions by saying "I do not remember".
However, when he was asked whether he had seen anyone hurt the deceased or whether he had hurt the deceased, he answered with a "No".
Other than the questioning of his mother, JN, there is no evidence which might lead to an inference that he might have hurt the deceased. Importantly, his mother did not recall making the statement to TN but, of course, agreed that if she had observed him being rough, she would have told him not to be rough. This is somewhat different from obtaining a concession that she had observed him to be rough. Of course, it is possible that she cautioned her son not to be rough with the deceased. However, that does not lead to the reasonable possibility that he struck the deceased with force that day.
The source of the suggestion that JN may have said something and that TN might have been rough comes from the accused. I have already referred to her statement in the car with Kevin.
It may be that TN's evidence was generally to the effect that he could not recall but there is no basis on which I would reject his definite denial of hurting the deceased. I must assess his evidence critically but that does not mean that I assume either that he might have forgotten doing something to the deceased or that he is not telling the truth.
Apart from anything else, the deceased was observed by a number of witnesses to be walking, running, playing, feeding during the afternoon and evening. There is no evidence that at some point during the evening his behaviour changed, such that he might have suffered an injury.
The accused raises the possibility that something may have happened to the deceased at the neighbour's house that afternoon/evening but there is no evidence that it did. The evidence is rather positive the other way. No-one noticed the deceased being hurt or in pain. He was running and being cuddled and playing with kids. No-one gave any evidence which would indicate that at any time he was in pain. No-one gave evidence of observing any bruising on his face. No-one said that he could not walk. No-one saw him vomit.
The accused does not bear any onus and does not have to prove that something happened to the deceased at the neighbour's house and again it is clear that no one person (even the accused) could say that he or she observed the deceased at every moment whilst he was at the neighbour's house that day, albeit that the accused told the Police that she always had her eye on him.
It is only necessary to say at this point that no one who gave evidence witnessed the deceased have any accident or anyone doing anything to him that might have led to the injuries which he was subsequently discovered to have suffered. I have considered all of that evidence critically but assessing evidence critically does not allow drawing inferences which are not available on the evidence.

[27]

The expert evidence

The report of Professor Lyons dated 1 December 2015 and his notes dated 25 March 2015 were admitted into evidence without objection. Dr Brouwer's reports of 24 June 2019 (x2), 19 October 2020 and 11 November 2020 were also admitted into evidence. Dr Brouwer gave oral evidence over more than two days.
Other medical experts who prepared reports and gave evidence were:

Dr Mohamed Nasreddine, a non-paediatric radiologist who prepared a report dated 25 June 2015;
Associate Professor Michael Buckland, the Head of the Department of Neuropathology at Royal Prince Alfred Hospital, who prepared two reports dated 25 June 2015 and 27 August 2019;
Dr Susan Marks, a paediatrician with extensive qualifications in clinical forensic medicine and forensic paediatrics who gave her address as the Child Protection Unit at the Children's Hospital at Westmead, who provided five reports dated 21 August 2016, 26 October 2017, 9 October 2019, 15 December 2020 and 21 June 2021; and
Dr Kristina Prelog, a paediatric radiologist who prepared a report dated 21 October 2020.

The accused relied on three experts, being:

Dr Matthew Orde, a consultant forensic pathologist, who gave evidence by AVL from Canada and who prepared a report dated 18 February 2020;
Professor Peter Ellis, a consultant forensic pathologist, who prepared a report dated 30 May 2021; and
Dr Bruce Currie, a specialist in general paediatric surgery, who prepared a report dated 28 May 2021.

Dr Orde and Professor Ellis also prepared a joint report dated 4 August 2021.
The principal area of discourse between the experts related to the likely timing of the insult or trauma to the deceased's head and stomach. As identified by Senior Counsel for the accused at the commencement of the case, as far as the accused is concerned, the timing of the stomach injury is the essential issue. This is because if that insult occurred before he returned home that Sunday night, she could not be convicted of murder.
There was substantial agreement amongst the experts about a number of matters, including that: 1. The cause of death was the stomach perforation rather than the head injuries. 2. There was perhaps a lack of specificity on the part of Professor Lyons in identifying his section/tissue samples which made it somewhat difficult for the experts to be certain as to the precise significance of the tissue samples. For example, the precise source of the tissue samples from the scalp which show the presence of hemosiderin is not clear. However, there is no suggestion that those samples came from the face area as opposed to the top or back of the head. Similarly, despite the diagram marking the area of the deceased's flank and describing the flank, at least some of the experts could not be sure as to where that was. I confess to being a little unclear as to why there was such uncertainty, having regard to the diagram and description in Professor Lyons' report of the area of the flank. Dr Brouwer would have identified it in the same way. 3. All of the experts agreed that the deceased had sustained multiple blunt force injuries. As Dr Orde said, these would have been sustained either by way of multiple blows to him or by his body knocking against or being knocked against firm and unyielding surfaces or a combination of these mechanisms. 4. All of the experts who commented said that the multiplicity and multifocality of the bruising would not be readily explained by accidental injury. Dr Orde said that several of the bruises over the torso appear approximately circular and focally clustered, raising the possibility of injury caused by gripping fingernails or punches (knuckles). However, he also said this could not be considered conclusive. 5. Dr Brouwer and Dr Marks considered that the presence of the bruises over the umbilicus would at least be consistent with the point of the likely trauma which caused the stomach perforation, albeit it being possible that there was force applied at some other point which might have caused the perforation as the abdomen does not bruise easily. The forensic pathologists tended to speak of not excluding possibilities. That is, even though it might be thought that the bruising at that point is particularly significant, other possibilities cannot be excluded and it is not possible to be certain of the age of that bruise based on the histopathology. 6. Yet it is clear that he did not have those bruises when he came home from the Johnsons'. The accused said that she did not notice any bruises on him when she came home from the neighbour's house on the Sunday. 7. Professor Lyons, Dr Brouwer and Dr Marks were all aware of the accused's explanation of what happened with the deceased in the bath and said that it did not explain the extensive bruising found on the deceased at the time of death or the other injuries. 8. All of the experts considered that both the fracture of the femur and the stomach perforation must have occurred whilst the deceased was alive. Further, both the stomach perforation and the fracture must have been as a result of significant blunt force trauma, with the fracture of the femur requiring even greater force than the force required to perforate the stomach. 9. The experts agreed that the presence of a stomach perforation without damage to other organs is rare but no one doubts that it happened. A stomach perforation is more likely to happen when the person has a full stomach. 10. All of the experts agreed that, having regard in particular to the histopathology of the tissue section around the stomach perforation, there was a range of between some hours, starting at perhaps three hours and up to three days before death when the injury causing the stomach perforation could have occurred. However, in the end, there was a difference of opinion between the experts as to a likely timeframe or even whether it was possible to estimate a likely timeframe.
All of the experts have extensive experience and are well qualified to comment on the matters being the subject of their evidence. In a case such as this, it is not merely a matter of preferring one expert over the other. The accused says that the expert evidence on which she relies leaves open the reasonable possibility that the insult to the stomach happened before they returned home on the Sunday evening.
I must assess the expert evidence carefully and critically. I must do that with all of the expert evidence. It is important to observe that expert opinions are generally based on assumptions or conclusions of fact and that the opinion may only be as good as the assumptions that are made. [14] By this, I mean, an opinion that is based on assumptions of fact which are not materially consistent with the findings of fact that I make should be given little weight.
Further, the expert evidence is only one aspect of the evidence in this case and it is my task to assess all of the evidence in making findings of fact.
I have considered all of the evidence of the experts and what is set out below is only a summary of their evidence. I will then go onto further consider and make findings about the injuries sustained by the deceased.

[28]

Dr Brouwer

Dr Brouwer is a very experienced forensic pathologist. Since 2015 she has held the position of State-wide Clinical Director of Forensic Medicine in NSW. She undertook an extensive analysis of the injuries. Indeed, she added to the description of the bruising provided by Professor Lyons, having regard to her own analysis of the autopsy photographs and the photographs taken in the hospital.
She also identified scratch and abrasion marks adjacent to some of the bruises. She said that bruises may take an indefinable length of time to develop or may develop and may change in their appearance and bruises may change after death. She considered it important to have regard to the earlier photos taken in the hospital in forming her views as to the bruises.
Dr Brouwer identified: 1. five bruises on the right side of the forehead above the eyebrow; 2. another bruise in the right temple just inside the hairline; 3. three linear scratch marks on the right side of the forehead which she said were suggestive of scratch marks caused by fingernails; 4. three abrasions which she said were suggestive of fingernail imprint abrasions; 5. abrasions on the right-hand side of the right eyebrow; 6. two small roundish bruises on the outer aspect of the right upper eyelid; 7. bruising on the inner aspect of the right upper and lower eyelids; 8. several bruises on the left side of the forehead or around the left eye and the left temple area; 9. abrasions below the left eye; 10. extensive bruising to the left parietal area; 11. A large area of sub-cutaneous bleeding in the left parietal area; 12. two bruises on the left-hand side of the head and the temple region above the ear; 13. an area of bruising on the back of the head which was visible once the deceased's head was shaved; 14. the entire right side of the head had a bruise appearing; 15. on the right side of the neck were a series of five minor abrasions; 16. two bruises below under the right of the left nipple; 17. four bruises above the umbilicus; 18. bruising visible on the left anterior lateral aspect of the left lower abdomen just above the upper edge of the nappy line; 19. two small brown coloured abrasions in the lower thoracic region; 20. two horizontal ill-defined bruises overlying the lumbar region; 21. a series of horizontal abrasions and scratches above the right buttock; 22. three small abrasions on the right arm; 23. two scratch marks on the right arm; and 24. a number of other small bruises and abrasions on the legs.
Dr Brouwer set out her reasons for concluding that there were significant indicators of non-accidental head injury. These included the multiplicity of injuries and the location on various parts of the head, including the face.
Further, Dr Brouwer observed that there are a number of factors that influence the appearance of bruises. Bruising may appear more frequently with lesser amount of force over hard surfaces such as the scalp and face where there is only a thin layer of soft tissue separating the skin from the underlying bone.
The presence of fat underneath the skin may have the reverse effect, and much more force may be required to produce visible skin bruising in areas such as the abdomen. She said this suggested a significant blunt force trauma to the abdomen was required to result in the bruising showing, particularly above the umbilicus which she identified as being in the area of trauma that could have resulted in the stomach perforation.
Dr Brouwer opined that the cluster of injuries to the face is highly suggestive of injuries caused by the gripping, slapping and/or punching.
Dr Brouwer was aware of the explanation offered by the accused as to the bruising to the face which was not present when the deceased returned home that night but was present when he died, that is, the crocodile rolling in the bath. Dr Brouwer did not consider that the bruising was consistent with having been sustained by crocodile rolling in the bath.
Dr Brouwer was cross-examined extensively. She agreed that bruises may take an indeterminate length of time to develop and the appearance of bruises may change after death, although she said that's why it is important to have regard to the photographs taken at the hospital. She spoke about the changing appearance of abrasions. She acknowledged that it is difficult to photograph bruises and bruising is not completely accurately represented by a photograph.
Further, the size of injuries can be difficult to identify from a photograph. She agreed there was some vagueness in Professor Lyons' description of the section samples taken from certain skin areas.
She was taken to the diagrammatic description of the section taken from the right flank. She agreed flank is not a precisely defined term and it could mean different things to different people, although she said she would also have referred to the area shown in the diagram as the flank area.
Importantly, bruising spreads past its initial point of trauma. However, a person would initially get a red mark from the point of impact. In other words, in my view, the trauma leaves a mark which would be apparent to an observer. Dr Brouwer said that the size of the bruise was not of great assistance in determining the object which the person hit.
She agreed that persons can sustain injuries during resuscitation, that is, before they have died. She said the most common areas of bruising and abrasions is over the front of the chest arising from chest compression. She agreed that there could be scratches and injuries where there had been resuscitation attempts.
She was asked to not have regard to the pattern of injuries and instead look at the individual bruises. She agreed that it would be difficult to determine how the child sustained those injuries, although she said she still would have been concerned.
She acknowledged that it was very difficult to age injuries and to say whether they all occurred at the same time or over a period of time. She referred to looking at the circumstantial evidence. It was suggested to her that she had not been provided with evidence about the deceased's observed behaviours in the days, weeks and months before his death. In particular, she was not provided with information about his head banging.
She said that if she had been provided with further information it would not have changed her observations and documentation of the injuries, but it might have changed her opinion as to the cause of some of the head injuries. She then said even with the head banging, the pattern of injuries would be suspicious. She agreed that if she had performed the autopsy she would have suggested further investigation was required.
Cross-examination was effective in highlighting the difficulties in aging injuries and the uncertainty that can arise from analysing material from photos, as well as establishing that observed bruising may spread past the initial point of contact.
Further, just like all of the experts, it may be that Dr Brouwer had not seen all of the evidence which was presented in this case. However, nothing emerged which caused Dr Brouwer to alter her essential opinion as to the forces which would have been necessary to cause the injuries or that the crocodile rolling did not provide a satisfactory explanation for the injuries.

[29]

Dr Marks

Dr Marks has extensive qualifications as a forensic paediatrician. She is employed as the Staff Specialist at the Child Protection Unit at The Children's Hospital at Westmead.
Dr Marks opined that a gastric perforation due to blunt force trauma to the abdomen would occur at the time of injury, not later. Further, she said that a gastric perforation would cause symptoms to develop rapidly/suddenly from the time that the injury/trauma occurred. These symptoms and signs would include rapid onset of acute sharp/severe pain in the chest or abdomen, abdominal tenderness, sudden abdominal distension, nausea, possible vomiting and possible vomiting of blood.
She distinguished between a perforation to the stomach and the bowel and a trauma that does not cause perforation at all. In her view, the response to a perforation of the bowel will take longer to develop than the response to the stomach perforation. This is relevant as there was some criticism of Dr Orde's reliance on a text which referred to the healing processes more generally and did not distinguish the stomach from other internal organs. Dr Marks also said that perforation would result in abdominal pain which was intensified by movement.
She said that within a few hours of the trauma occurring, the deceased would have developed peritonitis due to the release of the stomach contents into the abdomen. She considered that peritonitis could spread rapidly into the bloodstream, resulting in septicaemia and leading to septic shock and death.
Her opinion as to the suffering that would follow a stomach perforation is consistent with the views of Dr Brouwer. Indeed, her opinion as to the level of suffering is also consistent with the opinion of Dr Orde.
She agreed that if the deceased was seen standing in the bath, the fracture must have occurred at some time between then and when he was discovered the following morning.
In cross-examination she agreed that several hours would have passed between the injury and death. She also agreed that the presence of fluid was indicative of the passing of time. In other words, there were signs that there would have been several hours between the perforation and death.
She also agreed that it is possible that some air could flow to the stomach during mouth-to-mouth resuscitation attempts. She also agreed generally with Dr Currie's comments about the way in which children can respond to early sepsis and to pain but did not agree that a non-verbal young child may be incapable of localising or identifying the point of the pain.

[30]

Dr Orde

Dr Orde is a forensic pathologist. He is currently working in Canada and gave evidence by AVL from Canada. Dr Orde was retained by the solicitors for the accused. A letter dated 15 August 2019 from the solicitors for accused to Dr Orde was admitted into evidence. That is a short letter and does not refer to the Doctor being asked any specific questions.
Dr Orde agreed that the deceased died as a result of blunt force abdominal trauma with associated gastric rupture and the development of peritonitis. He said the majority of the injuries are likely to have been sustained within a few to several hours of death, but considered it possible that the abdominal injury which ultimately resulted in gastric perforation and death may have been sustained some time earlier, possibly up to a few days beforehand.
He agreed with Dr Brouwer on the histological assessment relating to the presence of inflammatory changes at both the site of the damage to the stomach wall and also on the surfaces of other structures within the abdominal pelvic cavity.
Dr Orde said that the multiple blunt force injuries would have been sustained as a result of multiple blows to his body or by his body knocking against or being knocked against a firm and unyielding surface or a combination of these mechanisms.
He did not consider that the various bruises pointed to any specific means of causation but the extent, multiplicity and multifocality of injuries would not be readily explained by accidental injury. He found it notable that several of the bruises over the torso appeared approximately circular and focally clustered, which raised the possibility of injury caused by gripping, fingertips or punches but was not conclusive.
He thought that the anorectal abnormalities would have been caused by localised trauma to the body location and were considered highly concerning for abuse with a sexual element.
He said that the fracture of the femur was caused by the application of significant force. He said absent any proper explanation, the fracture gives rise to a suspicion of non-accidental injury/abuse. He also said that such fractures can occur in an instant fashion, using examples of caregivers falling downstairs with a child in their arm, siblings landing on the limb during play, falls from couch, bed or table, slips and jumps. Nothing like that happened to the deceased.
He thought it possible that the deceased's fracture could have occurred as a result of being dropped or thrown around or being trodden on as suggested by the accused. Having said that, he agreed with Dr Marks that femoral fractures were normally caused by high energy trauma such as a motor vehicle collision, but that it does not follow that the amount of force required to cause the fracture would not be generated by someone inadvertently treading on the deceased.
He said that the florid peritonitis as seen in the deceased would have been profoundly evident to the sufferer as well as observers by way of extreme pain and other signs of ill health. I understood this comment to mean that the deceased would have been in extreme pain as a result of the florid peritonitis.
He said that as no such description was provided in respect of the neighbour's gathering, it would appear that gastric rupture and the onset of significant peritonitis would have occurred at some time after that event. I take this to mean that on his understanding of the observations of the deceased before he came home that Sunday night, the rupture would have occurred after the deceased left the function.
However, in his report he said that having regard to the microscopic appearances, there was a possibility of delayed gastric rupture. That is, the pathological findings raised a possibility that there may have been a development of many hours and possibly a few days between the initial abdominal injury and death.
Dr Orde and Professor Ellis provided a joint report. In my view, Dr Orde modified his opinion somewhat in the joint report in two respects.
In the fourth paragraph of that report, the doctors opined that the inflammatory changes in the tissue section prepared from the margin of the gastric defect indicated a period of at least "many" hours and possibly even greater than a day or two between the origin of the injury and death. Dr Orde thought "many" would be at least ten hours, which was a firming up of the broader range initially suggested in his report.
They also opined that the stomach rupture likely occurred around the same time as the insult to the stomach that produced the inflammatory changes, although it is possible that the perforation site had expanded after the time of the initial rupture. As such, after completion of his report, Dr Orde appears to have discarded the likelihood of a delayed rupture and moved to a more definite opinion on when the trauma to the stomach happened.
Dr Orde opined, like the other experts, that there are really three factors to take into account when trying to establish the timing of the injuries sustained by the deceased, being: 1. the autopsy findings; 2. the clinical data relating to post-injury signs and symptoms; and 3. the evidence of other witnesses.
He agreed as a pathologist he could only give evidence in respect to the first of those factors and he agreed that if there was a specialist with clinical expertise he would defer to that person.
As far as the histological assessment was concerned, he thought there was only one significant area of dispute between himself and Dr Brouwer. This related to the identification and the number of spindle cells around the necrotic edge of the stomach perforation.
Indeed, as I understand it, the major area of dispute is Dr Orde's opinion that "many" means at least ten hours. In oral evidence, Dr Brouwer suggested three, five and eight hours as a possibility, as well as two days. Professor Ellis suggested that the injury could have occurred at any point within that range.

[31]

Professor Ellis

Professor Ellis is also a highly qualified forensic pathologist. I have already referred to the joint report he prepared with Dr Orde. His use of the word "many" in the joint report is somewhat broader and would include a few. He said so in oral evidence as he specifically said he would stick to his opinion in his report.
He thought the mechanism of perforation would have been a result of some form of trauma applied to the stomach. He said it was not possible to determine which direction such trauma had been applied, other than to suggest it was likely to have come from the front. The reason for this is that the presence of the vertebral column at the back of the body would protect the trunk from trauma applied as well as acting as the anvil upon which a force from the front of the body would squeeze internal organs, causing it to burst.
In his report he said he thought it reasonable to conclude that the perforation of the stomach occurred at least some hours before death. He was asked to comment on the small round bruises on the skin on the front of the abdomen. He was not certain as to the relationship between these bruises and the perforation because he was not sure that there was microscopic examination at that point.
He also referred to the unclear reference to xanthochromic staining of skin within the abdominal region. Without it being clear where it was, he thought forming a view based on that was entirely speculative. The accused says that she has been significantly disadvantaged by the absence of Professor Lyons in this regard.
Professor Ellis was asked about the possibility of delayed gastric rupture. He said he could see no reason why there would be any delay and he would expect the rupture would be contemporaneous to the application of force.
He said that inflammation is the body's response to damage. It may happen very quickly, or it may take minutes or several hours. It doesn't happen suddenly, so all that pathologists can point to is that it's somewhere in the range.
In other words, if it is put that it could have been at a certain time, the answer is that it could be. It must be no coincidence that when any of the pathologists were asked as to the possibility of a particular time, they answered "it could be". Ultimately he agreed that there are a number of limitations and he was unable to give a precise time as to when cell changes commenced. He agreed that the opinion of a paediatric specialist would be of significance.
He was asked in further examination-in-chief on behalf of the accused about his comment regarding the difficulties in hypothesising a minimum timeframe. He said he sticks by his comment, the comment being that it is likely that this time was greater than one to two hours and may have been much longer.
Despite the preparation of a joint report with Dr Orde, it is apparent that there is some difference of opinion between Dr Orde and Professor Ellis. Professor Ellis says he sticks to the timeframe of being greater than one to two hours and may have been much longer. Dr Orde said that his use of the word "many" in the joint report meant more than ten hours.

[32]

Dr Currie

Dr Currie is a paediatric surgeon at Sydney Children's Hospital. He was asked to address a number of issues specifically relating to the stomach perforation and then to opine on whether it was possible the fracture was caused peri-mortem.
Like the other experts, Dr Currie acknowledged that it is impossible to provide precise timeframes but he considered that the pathological evidence was such that it was more likely that the gastric perforation occurred a day or days before death rather than hours. He felt that children have extremely good physiological mechanisms for coping with early sepsis and it is not beyond the realms of possibility that the gastric perforation could have occurred some days before the deceased's death.
He referred to the honeymoon period during which the body responds by pouring fluid into the abdominal cavity diluting the spilled contents and reducing symptoms. Dr Brouwer was quite adamant that no such honeymoon period was recognised in the texts or studies. Dr Marks had not heard of it.
Dr Currie then commented on his understanding of the clinical picture in terms of the observations of the deceased on Friday 20 March through to Sunday 22 March. I will comment on his evidence about these observations later in this judgment. He noted that it is extremely common in children that pain reactions can be exhibited by becoming quiet and withdrawn rather than screaming in pain as older children and adults might do. He postulated a timeframe of one to three days, suggesting that the stomach perforation would have occurred at least before 6am the previous day, that is, at 6am on the Sunday. On this view, and assuming that the rupture was not delayed, the deceased must have been in pain all day Sunday.
He agreed that the degree of force needed to cause the gastric perforation would be substantial. He thought it would have been quick and severe. Additionally, his stomach would have had to been quite full with mainly fluid or food rather than just air which is more compressible. He said when talking about force equivalence, it is often useful to compare forces involved in a fall from 1 metre, 5 metres and 10 metres. In this case, it would have been equivalent to a fall from 10 metres high or greater.
He thought it was possible that the four round bruises above the umbilicus running from right to left could represent bruising occasioned by the knuckles of a fist, but that it was also possible that the force that caused the perforation could leave no visible marks.
Dr Currie thought that if the theory of delayed gastric rupture were to be entertained, it would still involve two abdominal traumas, such that the first trauma weakened or partially split the stomach wall, and the second trauma then completed the rupture.
Dr Currie believed that the deceased had been dead for some hours by the time the ambulance arrived.
In his oral evidence, Dr Currie explained that he would defer to a pathologist in terms of the histopathology but that he considered it clear the perforation occurred some time before death because of the reaction present in the stomach wall adjacent to the perforation.
Specifically, he said he could see a thick layer of fibrin on the peritoneal surface and, in his observations over many years, the combination of mixed inflammatory cells with a thick layer of fibrin indicates it is more likely that the gastric perforation occurred over a day or days before death rather than hours.
Dr Currie explained that children have good coping mechanisms such that their blood pressure and perfusion may remain stable for a very long period and then all of a sudden they just die. He said it was a well-known physiological phenomenon. He referred to children with abdominal perforations in the small bowel and large bowel rather than the stomach having lasted a week before finally succumbing.
In terms of the timing of the deceased's death, he referred to a well-known phenomenon that occurs when a person has died but there is still agonal breathing, such that the diaphragm continues to move in and out. He remained of the view that he probably died before the accused found him.
He thought it significant that the deceased was known to have a high pain threshold and known not to scream.
In terms of the possibility of intercurrency between the gastro bug and the gastric perforation, he agreed that if he had fever, vomiting and lethargy, that could be either a gastro bug or gastric perforation. Dr Currie said, "what we don't know is if he had a gut bug or not". Dr Currie said he didn't know whether the deceased had a gastro bug because there were no slides taken of the bowel.
Dr Currie agreed that the stomach perforation could have been caused by a hard punch or knee or kick to the stomach or if he was hit by a swing, depending on the point of force, or a fall from a height onto a protruding object or being pushed onto a protruding object. He did not think it would have been caused by a person running and falling onto a protruding object.
In cross-examination, Dr Currie agreed that the initial sign of gastric perforation would include immediate pain to the abdomen caused by the trauma itself and then further pain from the chemical peritonitis. Stomach distention may not occur immediately. It may occur a little later, depending on whether there was a large amount of gas or fluid within the stomach. He agreed that the deceased would have been suffering from general abdominal pain.
There would be vomiting as an initial sign and the vomiting would normally occur at the time of the injury. He described it as a shock response, like when people get hit in the abdomen or a car crash. They often vomit due to reflex mechanisms.
He agreed that once the peritonitis is established then any coughing movement could cause pain. He said the pain response may be varied. He said that if he had a big full stomach and it suddenly spilled out, it would be severe pain. He agreed that a fever would be part of the inflammatory response.
He agreed that in the 12 hour period before death, the person would be low on energy, lethargic and not wanting to move at all. He agreed that a 20-month-old child would not be happily playing with a gastric perforation, but that it depends on what the meaning of "happily playing" is.
He was asked questions about his comment about the fibrin. He agreed that the less observable the fibrin is, the more fresh the injury is likely to be. He agreed that when he referred to a thick layer of fibrin he was not referring to fibrin only observable under microscopic examination.
He also referred to the possibility that a person would go quiet for a while after a shocking injury. He was asked whether certain evidence about the deceased eating and drinking would have an effect on his opinion. He said "No" on the basis that there was too much evidence that the trauma had occurred earlier. When asked what that evidence was, he said it was the histological evidence. Further, he considered it takes time for peritonitis to ensue and time for sepsis to set in. He did not agree that such an injury would cause rapid death.

[33]

Discussion as to the histopathology

For the purposes of forming her opinion, Dr Brouwer reviewed slides originally prepared and preserved by Professor Lyons, as well as recuts with additional special staining for the purposes of her case review. As I understand the process, a thin layer of tissue is cut from a particular area and then examined microscopically in part to examine the presence of different cell types and draw conclusions from that.
The examination and reporting of the tissue sections cut by Professor Lyons and to a certain extent recut by Dr Brouwer, as well as the staining of the slides by Dr Brouwer, is of some significance. It is clear that the opinions of Dr Orde and Dr Currie rely heavily on their conclusions about the histopathology in respect of the section around the stomach perforation.
All of the experts, except Dr Currie, agree that it is not possible to be conclusive as to when the insult which caused the stomach perforation happened, having regard to the histopathology. A timeframe of a few (three hours) to three days is possible. All of the pathologists spoke in terms of "not being possible to exclude" a particular scenario or timeframe.
As identified by the accused, there is a further test which might have been carried out on the particular tissue sample and that may have assisted in the better determination of the age of the injury. The accused points to a significant forensic disadvantage in this regard. I have regard to that in reviewing the Crown evidence critically, but it is not the case that this further test would have provided a definite answer either way.
There are two aspects to the debate about the histopathology. One relates to the ageing of the head injuries and the other relates to the ageing of the injury to the stomach. As far as the head injuries are concerned, the presence of hemosiderin on the scalp tissues cut by Professor Lyons suggest that at least some of those head injuries were likely to be older than the night of the deceased's death. In particular, the injuries to the top and back of the head.
In my view, any debate about the histopathology in respect of the head injuries does not detract from the fundamental position that the deceased did not have the marks on his face, neck and some other parts of his body when he went home that night. The histopathology does not assist in determining the cause of those marks.
The more significant discussion around the histopathology relates to the stomach perforation. There are three possibilities for how the stomach perforation may have occurred, being: 1. A significant blunt force trauma causing the perforation of the stomach at the same time, leading to the commencement of symptoms and the development of peritonitis; 2. A significant blunt force trauma to the stomach without gastric perforation but followed by a delayed gastric perforation, meaning that the symptoms associated with the perforation would not have emerged until some time after the actual traumatic event; or 3. The happening of a significant blow to the deceased's stomach in some way weakening the area followed by another blow later that actually led to the perforation.
The question of delayed gastric perforation was raised by Dr Orde in his actual report but, in the joint report, he and Professor Ellis said that was unlikely. Professor Ellis also said in oral evidence that he felt "we", meaning both Dr Orde and him, considered the possibility of delayed gastric perforation unrealistic. Apparently only one case of delayed gastric rupture has ever been found in the literature. In the end, none of the experts support a delayed gastric rupture and I am satisfied this is not a reasonable possibility.
Similarly, whilst the possibility of two blows leading to the rupture could not be excluded on the histopathology, there is no evidence which would support it as a reasonable possibility. Further, if it is being suggested that the first blow occurred many hours or days beforehand and the second blow occurred in the home that night, it still must be that it was a blow to the deceased's stomach in the home that night that caused the gastric rupture, albeit in its weakened state.
None of Dr Brouwer, Dr Marks or Dr Currie raised this as a possibility.
Dr Currie's opinion that the injury occurred more than 24 hours before death was on the basis of a traumatic event and immediate perforation. Dr Brouwer and Dr Marks said this is what happened. I do not consider it a reasonable possibility that there were two blows at different times.
All of the experts agree that the tissue sample shows the presence of mixed inflammatory cells. Review of the histology samples revealed extensive stomach contents aspiration, suggested by the presence of foreign material (being the stomach contents) in the bronchi with associated inflammatory response. Samples from other organs showed peritonitis on the peritoneal surface with mixed inflammatory cells, and a thin layer of fibrin (shown microscopically) with inflammatory cells including neutrophils being visible on the peritoneal surface of the small bowel in keeping with peritonitis.
The tissue at the edge of the perforation contained mixed inflammatory cell infiltrates with pronounced neutrophils.
In the end there appears to be fundamental agreement between the experts as to the cell types and the mixed inflammatory response, subject to two matters.
Firstly, Dr Currie identified the presence of fibrin which could be seen by the naked eye. He considered that significant in terms of the likely healing time. However, Professor Ellis said that the fibrin could only be seen microscopically, and Dr Brouwer's reporting is to the same effect.
Secondly, there is a difference of opinion as to the significance of the presence of spindle cells, which are called spindle cells because of their shape.
Dr Orde suggests that his analysis strongly favours an overwhelming predominance of neutrophil polymorphs. He says that the cellular makeup of the inflammation appears to be somewhat mixed, comprising of neutrophils and also significant numbers of lymphocytes and macrophages.
He also found it notable that on the margins of the band of necrosis there are a large number of spindle cells which he says may be either cells of the type known as fibroblasts involved in the production of collagenous tissues as part of the healing process or cells involved in the production of new blood vessels (endothelial cells).
Dr Orde concluded that the increased presence of spindle cells was indicative of cells involved in a healing response rather than simply being already present in the area. In his report he explained that neutrophil infiltration can develop very early in the inflammatory process but the extent of inflammation in this case suggests that the healing process would have commenced at least a few hours prior to death. On that basis, the presence of such cells, in such a number, meant it more likely that the injury had occurred many hours before death. He thought many meant more than ten.
There is no doubt that those spindle cells could represent a healing process or they might have just been cells already present. The essential disagreement between Dr Orde and the other experts as to timing may boil down to Dr Orde's analysis of the mixed inflammatory cells and the significance of the spindle cells.
However, it is important also to have regard to the views of Professor Ellis, who was retained on behalf of the accused.
Professor Ellis opined that the presence of such cells can be seen in some parts of the gastric wall and, if they are endothelial cells, that would imply significant time since the onset of the inflammatory process as the development of new blood cells takes time to establish during inflammation. However, he said it is possible that the spindle cells merely represent persisting fibroblasts within the fibrous wall of the stomach and, as such, may be unrelated to the recent injury. He said it is thus not possible to use the spindle cells as a guide to the timing of the recent injury. He said he was not entirely in agreement with Dr Orde who seemed to consider that they are inevitably a sign of an old injury.
As Professor Ellis said, the exact nature of the spindle cells has not been established and their origin should not be used to hypothesise any potential timing since the injury.
It must be no coincidence that when any of the pathologists were asked as to the possibility of a particular time they answered "it could be". Even Dr Orde agreed that a shorter timeframe was possible.
Because the accused has suffered forensic disadvantage in that she may have been able to cross-examine Professor Lyons about his tissue samples, and it may have been possible to obtain further tests, I must assess the Crown evidence critically.
That does not mean that I should infer that this testing would have determined when the injury occurred or that it happened at a significantly earlier time. It must be remembered that Dr Orde has opined that the mixed inflammatory cells suggest that the trauma occurred more than ten hours before death, even without the benefit of the test, but acknowledges the other possibilities.
Dr Brouwer, Professor Ellis and Dr Marks do not accept the approach of Dr Orde to the histopathology. Professor Ellis has a different view as to the meaning of "many" in the joint report as he specifically said in his oral evidence that he would stick to the opinion in his first report which includes in the possible range a few hours.
Dr Brouwer was adamant that the text relied on by Dr Orde as supporting the timing of the healing process and the identification of cell types did not support his conclusion, that is, Dr Orde's conclusion, but rather was more of a general commentary on the healing process not specific to the stomach. Dr Marks specifically referred to the differences between healing times in the bowel and the stomach.
In my view, the histopathology is not so clear and never would have been so clear as to provide a definitive answer to the ageing of the injury based on medical science. I must have regard to the histopathology and the opinions about it but it is important to observe that all of the experts agreed that the process of determining when an injury occurred involves assessing all of the evidence, of which the histopathology is only one aspect.
It must also be remembered that, on the basis that the perforation occurred at the same time as the insult (and I do not consider that there is any evidence that supports the possibility of any alternative scenario) the deceased would have been suffering from the painful symptoms identified by all of the experts.
If the insult happened some time during the Sunday afternoon, it is remarkable that the deceased was not demonstrating any pain symptoms at all, not just according to all the lay observers but according to the accused herself.
One of the complicating features of this matter is that the deceased is a person who had clearly suffered a number of insults to his person before the night of his death. This is indicated by the presence of hemosiderin in some samples from his head.
How they all happened is not known. He banged his head from time to time and might have also fallen over. Having said that, the presence of old bruises on examination after death does not detract from the evidence as to the development of new bruises in the home that night.
In commenting on the timing of the perforation, Dr Orde said that microscopic observations typically provide the greatest assistance in relation to the post-mortem assessment of the timing of injuries but in this case only a small number of areas of injury were sampled for histological assessment. Thus, limited inferences can be drawn.
He acknowledged that the microscopic appearances of healing injuries can vary from site-to-site within an individual and also between individuals. Sampling error may also be an issue because only small slivers of tissue are selected for microscopic assessment.
Dr Orde accepted that it was possible that the injury occurred a few hours before death, although he preferred a longer period, that is, more than ten hours. Importantly, the opinion about it being more than ten hours is based on his analysis of the histopathology and, as set out in the joint report, takes account of the presence of some other injuries in other parts. Dr Orde was the only forensic pathologist who was prepared to be more definite about timing, because all of the other pathologists stressed the importance of looking at all of the relevant factors in identifying the possible range for the timing of the stomach perforation.
Further, it is not clear to me why Dr Orde somewhat firmed up his view on the "many hours", because he included in his report the starting point of a few hours within his possible range. Despite it being a joint report, Professor Ellis took a different view of the use of the word "many". Dr Orde's opinion was highly qualified and even he emphasised his disadvantage in being in Canada and not being able to examine the tissue sections personally. Importantly, Dr Orde's opinion does not fit with his other opinion that, on his consideration of the evidence as to the deceased's behaviour at the function, the perforation would have occurred after that. That is, the observational evidence does not support his estimate of ten hours on the basis that ten hours before death would be hours before the deceased came home from the function. Yet he concluded on his analysis of the observational evidence that the perforation would not have occurred at the function.
Further, assuming that the deceased returned home around 9pm and was discovered at about 5am, there was obviously a period of eight hours when something might have happened. If that which happened to him happened close to when he came home, then there is at least a possibility of there being six to seven hours between the injury and death.
Further, I accept Dr Brouwer's and Dr Marks' opinion that there may be a difference in healing times between the stomach and the bowel and that evidence from the bowel is not necessarily instructive in forming an opinion as to the healing processes in the stomach.
On my analysis of Dr Orde's opinion on the histopathology, he has acknowledged that the spindle cells could either be evidence of the healing process or cells that would have been present in any event.
In the end, I accept the opinion of all the other experts that it is just not possible to look at the spindle cells and identify when within the broad range the injury may have happened. As I have said, there is an inherent inconsistency in Dr Orde's opinion between the clinical/observational and the conclusion on the histopathology.

[34]

Further comments on Dr Currie's evidence

It is quite clear that Dr Currie relied on his findings on the histopathology and the opinions of the forensic pathologists in that regard, and in particular, Dr Orde. Yet he acknowledged in oral evidence that he would defer to a pathologist when commenting on this topic. It is quite clear that he placed significant reliance on the histopathology because when questions were put to him about the significance of some of the observational evidence, he said that there was just too much evidence to the contrary. He pointed initially to the histopathology and then to his views about the clinical presentation.
Dr Currie is a very experienced paediatric surgeon with considerable expertise. However, in my view, his conclusions or assumptions about aspects of the evidence do not match the evidence before me. Further, I gained the very strong impression that Dr Currie adopted the approach of relying on the histopathology, and in particular his own views about the histopathology as well as those of Dr Orde, and then identifying observational evidence which he considered to be significant and consistent with the view he had taken about the histopathology.
He referred to a case where a child survived a week with this sort of injury before succumbing. He did not think the injury would cause rapid death.
At the time of giving evidence, Dr Currie had not received the report of Professor Ellis and had not received evidence from some witnesses such as Kevin.
A number of comments made by Dr Currie as evidencing his view is that the deceased was sick and likely to have been sick arising out of the stomach perforation up to two days before his death appear to have been overstatements.
For example, in support of his view that the deceased had not been eating much from Friday to Sunday, he described the deceased as a voracious eater. He said he had been receiving inadequate fluid and food especially for a boy who loves his food and apparently is voracious. The source of that belief is not known and Dr Currie could not identify it.
He said that from a clinical point of view, the deceased was reported as being quite ill from Friday morning and was described over the next few days being quiet, not himself, more sooky and having consumed very little in the way of food. Mrs Johnson referred to the deceased having a banana during the first visit and the accused telling her that he couldn't have it all at once due to his food issues. I am not sure what those issues were.
Dr Currie assumed that the deceased had vomited twice at the Johnsons. This is significant because he agreed that vomiting was an initial sign of a stomach rupture. He says it usually happens at the time of the injury. He said that it is a shock response, like when people get hit in the abdomen or a car crash, they often vomit due to reflex mechanisms. In my view, this evidence is significant. The fact that Dr Currie thought that the deceased had vomited twice at the Johnsons' may have led him to conclude that something happened at the Johnsons', but the deceased had only vomited once, and that was on the way home from being picked up by Mr Johnson.
Further no one reported seeing the sort of abdominal distension which would have been present on the deceased on Sunday at the function. Indeed, the accused did not report seeing any distension until the next morning and she said it happened after she blew air into him.
The deceased was not vomiting, not demonstrating any sort of pain-induced behaviour and seemingly did not have a distended stomach.
Dr Currie's opinion about vomiting is also significant because the deceased vomited in his cot on the night of his death. According to the accused, the deceased had not vomited since being at the Johnsons'. The accused said the deceased did not have a temperature on Sunday. He had eaten and she expressed concerns that he had overeaten, having been fed lasagne and then a fish finger and one or two chips. He may have vomited because he had overeaten and because of the effects of the gastro illness that he had even before he arrived at the Johnsons'. Alternatively, the vomiting may have been a response to something else, such as an insult to his stomach.
It may be consistent with both but, if as Dr Currie says, vomiting is a response to the perforation, it seems odd that he did not vomit at some other time, bearing in mind Dr Currie's view that the perforation occurred at least 24 hours before death.
Dr Currie's comments on the deceased's presentation are not consistent with my own conclusions having regard to all of the evidence and seem out of step with the picture that was painted of the deceased at the function on Sunday. For example, contrary to what Dr Currie said would have happened to the deceased, the deceased was not carried everywhere. He was observed drinking a popper and drinking water. Further, the earlier video taken of the deceased shows him being able to dance around and be stable on his feet. The evidence of a number of people was that the deceased would climb or jump down from their laps rather than being carried down.
These assumptions or conclusions are not consistent with the evidence that was presented at the trial. They are also not consistent with what the accused said to the Police, or the observations of persons such as Kevin or the neighbour, JN.
Further, when questioned about the pathology, Dr Currie agreed that he would defer to the experts. In his report, he referred to the cells described by Dr Orde as spindle cells and suggested all the tissues examined showed mixed inflammatory cells. He also referred to the presence of a thick layer of fibrin on the peritoneal surface of the stomach. According to Dr Currie, this indicated it was more likely that the gastric perforation occurred a day or days before death, rather than hours. However, no other expert observed a thick layer of fibrin. Professor Ellis said that it could only be seen microscopically.
I don't doubt that Dr Currie is a person of considerable expertise, but his opinion that the gastric perforation likely occurred more than 24 hours prior to death is not an opinion shared by the other experts although, as I have said, it is all within a possible timeframe.
In circumstances in which Dr Currie's pathological analysis is not necessarily consistent with other expert opinion and in which he either did not receive the full picture in terms of how the deceased was presenting or has interpreted his presentation in a way not consistent with the evidence before me, I am unable to accept his view that the perforation likely occurred 24 hours before death. It is just a possibility within a broad range.
The accused does not have to prove when the injury happened, but the accused says that Dr Orde's opinion leaves open the reasonable possibility that it occurred before the deceased came home on 22 March.
In the end I do not consider that the evidence of Dr Currie and Dr Orde is such as to limit the range during which the stomach perforation may have occurred either to greater than 10 hours, or as Dr Currie said, greater than 24 hours.

[36]

Assessment of the accused's statements to the Police

In my view, the accused either left out things that happened in her home during the night or provided information to the Police about some of the things that happened which were not correct.
For example, the accused did not mention Child 2 being in the bathroom with the deceased at any time. Yet she must have known that her daughter had seen something, as she asked her not to say anything.
The accused's request to her daughter that she not mention the bath is puzzling because the accused had already mentioned what she said happened in the bath to the Police within hours of the deceased's death. It suggests something else happened in the bath that the accused did not want the Police to know.
On the accused's version, after she got the deceased out of the bath, she placed him on the change table and was playing with his legs and he was kicking his legs, seemingly without a problem. She then put him in his cot where he stayed until she picked him up at 5am.
If this be so, something else must have happened which the accused did not mention because the deceased did not fracture his femur lying in his cot.
The accused did not mention to the Police that the deceased had been standing and that she had roughly forced him down or that she was yelling at him for some time while she was bathing him.
The accused's suggestion in her first Police interview that the deceased had five bruises across his forehead which had been present since the bath the week before, cannot be accepted. It is contrary to the evidence of Mr Johnson, in particular, and of course no-one else observed such bruises.
The accused's suggestion that the deceased did the same thing, that is, crocodile rolls and bruising himself the week before in the bath, cannot be accepted in the sense that however he behaved in the bath the week before, he did not cause the damage to his face/forehead which the accused maintained he did. Again, this is evident from the evidence of the Johnsons.
I accept that the deceased might have banged his head from time to time in frustration and that he did not like having a bath or water being put on his head, although again, there is inconsistent evidence about this.
He might have reacted adversely to the bath on the night of his death but it is clear that not all of the bruising on his face and body which was not present before he came home that night (according to every witness and what the accused herself said to the Police, that is, she did not observe any bruises on him) arose because of the deceased's rolling around in the bath.
The expert evidence is consistent. The multiplicity and multifocality of his head injuries are such as to be inconsistent with accidental injury. Rolling around in the bath could not have caused grazes to the neck, scratches to the face or some other bruising identified on the deceased.
I accept that some of the bruising shown at autopsy may have been older than the night of his death, but the accused's version does not explain the appearance of all the marks and scratches which were observed on the deceased at the time of death.
Further, if I accept what the accused said, that is, she did not observe any bruising on him that night, then the bruise above his umbilicus could not have been present. The injuries sustained by the deceased do not fit the accused's own observations of him that night.
Further, the accused's description of what happened in the bath seems highly improbable. Again, it may be that he reacted adversely and might have struggled. Certainly, the marks on his face and neck might be suggestive of some sort of struggle. However, the idea that the deceased was able to roll four to six times in the bath with the accused apparently being unable to stop him or that the deceased, who the accused said had an aversion to water on his head, would deliberately roll around with his face in the water and then deliberately smash the front of his face into 20 to 30cm of water and then the bottom of the bath, seems improbable.
There is a big difference between the occasional banging of the head in frustration and the sort of deliberate and forceful impact with the bath that the accused says the deceased was doing that night. Of course, it may be that the deceased did fall backward, and it may be that he hit the back of his head after getting out of the bath, as the accused said that he was wobbly. That is hardly surprising. He might have been wobbly on his feet for a number of reasons.
Further, the accused gave inconsistent explanations as to why there was a bloodstained towel in the bucket adjacent to the cot and when the towel was used on the deceased.
There are other inherently improbable aspects of the accused's version, such as that having put the deceased in his cot for the first time and turned off the lights, she came back and used the torch to check on him (for some reason) and then noticed that he had thrown up. On her version, he must have been lying still, not making a sound, in his own vomit, in circumstances in which, on her version, he had not sustained any head injury at that time or nothing had happened at home to cause the fracture of the femur. He was not unconscious or in any way restricted from moving.
She also said that she thought the deceased had choked on his vomit during the night. I am unable to reconcile the clean sheet (other than bloodstains) found on the cot with what she thought had happened. The accused said that the sheet was placed there after the bath before she put the deceased to bed. However, that sheet was not vomit-stained. Only the first sheet to have been on the cot was vomit-stained.
I do not accept the accused's explanations for the fracture. Firstly, she only raised the suggestion that Kevin may have trod on the deceased during the third interview. Kevin did not say he did and he was not wearing boots. Subject to Dr Orde accepting the possibility that Kevin treading on the deceased could have caused the fracture, such a possibility has been rejected by the other experts.
Secondly, the accused did not say in her first interview anything about getting the deceased out of the cot, shaking him and slapping him and then throwing him to the ground. Both in her first and third interviews, she said she laid him on the bed.
It is clear from the whole of the second interview that the accused was being asked to explain the fracture of the femur. She went from raising the possibility that she might have dropped the deceased to suggesting that she had thrown him and "chucked" him on the ground. She must have forgotten about that by her third interview, because in her third interview she used the words "laid him on the bed".
The accused had first aid qualifications. It is one thing to be shocked and panicked and perhaps lift a toddler up and try and move him around a bit. It is another thing to deliberately throw a 20-month-old child on the ground with force because of such shock.
In any event, it seems likely that the deceased was already dead by 5am, although precisely when he died and how close to 5am he died is not known.
The accused's version of how the deceased might have been injured overnight in her home is, according to the experts, not consistent with the injuries sustained.
I may accept or reject part of any witness' evidence. The accused's explanation of what the deceased did in the bath does not explain the presence of the various facial bruises, abrasions and scratches, including on his neck. It does not explain some of the other bruises found on his body. It provides no explanation for the fracture of the femur or the stomach perforation.
As in my view, the inescapable conclusion is that the deceased sustained the fracture of the femur in the home that night, and it must be that the accused has either left a significant event out or has not told the truth generally about what happened.
Having said that, I am able to reject part of her evidence and accept part of her evidence.
There is no reason not to accept what she said, for example, about believing that the deceased was not right when she dropped him off at the Johnsons' or that she did not think he had a temperature during the Sunday or that he did not throw up between the Johnsons' and Sunday night in her home.
Having rejected part of her evidence, I must put that part of her evidence aside, as she bears no onus. [15] I do not take the fact that she has not told the truth in certain respects as evidence of her guilt, , other than in respect of the consciousness of guilt direction that I have made.
I will now move to my findings about each of the injuries.

[38]

Fracture of the femur

The deceased was discovered to have had a complex fracture of the left femur with separation of the greater curvature; that is, there was a complete separation of the bone.
There is no evidence of any congenital defect which might explain such a fracture. The accused's suggestions during her Police interview and subsequently to the Burnside caseworker of a suspicion of some problem with the hips and the possibility of an earlier fracture are not supported by any expert evidence.
There are two indicators that this injury occurred whilst the deceased was alive, being: 1. bleeding from the fracture site into the muscles of the thigh; and 2. at least possibly the migration of fat emboli from a long bone into the lungs i.e. from the femur.
The histopathological evidence does not enable me to make any finding as to how long before death the deceased suffered this injury, as both the bleeding and the migration would happen very quickly after the trauma.
This injury would have been very painful. All of the expert evidence is to the effect that this injury could only have occurred as a result of high energy trauma. Again, it is normally associated with a trauma such as a motor vehicle accident. Like any such injury, the pain would have persisted until treatment or, in this case, death.
The deceased could not have walked with such an injury. He would have been in extreme pain. He could not have been playing with other kids or going into a car seat or allowing his legs to be played with on a change table if he had suffered such an injury. He would not have been able to stand in the bath.
There are no witnesses as to how this injury was sustained but, having regard to the extensive evidence as to the deceased's behaviour at the neighbour's house before returning home, I am satisfied that he did not sustain this injury at the neighbour's house before returning home.
Further, Child 2 said she saw the deceased standing in the bath.
Having regard to all of the lay observations of those persons at the neighbours' function and indeed the observations of Child 2 and Kevin, I am satisfied that the deceased had not sustained the fractured femur before returning home at around 9pm.
As there is no suggestion of the deceased leaving the home before he died, it follows that he must have suffered the injury at the home of the accused after returning to those premises.
There is no onus on the accused to prove how this injury occurred or disprove her involvement but the accused offered a number of possible explanations when interviewed by the Police, and others were raised during the course of the trial. On the accused's case she played with his legs after the bath and put him in the cot, and that he did not get out again until she took him out the next morning.
The accused's case is that this injury possibly occurred during the resuscitation phase, perhaps when the deceased was already unconscious. The accused relies on the absence of any of the neighbours hearing any screaming of the type that might have emanated from the deceased as a result of such a painful injury.
Ordinarily, it might be surprising if other persons did not hear such screaming if such screaming took place, but it is not known precisely when this injury occurred. Music was being played at No 2, at least for some time after the deceased returned home. I do not know when other neighbours went to sleep. Their houses were estimated to be around 100 or 125 metres away.
Kevin had hearing difficulties. He said he went to sleep immediately after he put the soiled cot sheet in the washing machine and on his evidence was undisturbed until he woke up to get ready for work the next morning. On the other hand, he seemingly did not hear the accused yelling at the deceased as referred to by Child 2.
The evidence of Dr Currie may be significant on this issue. Ordinary human experience suggests that persons who suffer such painful injuries will cry out in pain. Based on common experience it might be difficult to believe that the deceased did not do so, even allowing for the evidence that he generally did not cry. Even a so-called high pain tolerance would not account for the absence of the normal pain response in respect of such a severe injury.
However, Dr Currie explained that some injuries can be so traumatic to a child that the child goes quiet.
I do not consider that the absence of evidence from persons saying that they heard the deceased screaming raises a doubt as to when the injury occurred. The evidence points overwhelmingly to it occurring at the home that night.
It did not cause the deceased's death but as Dr Currie and Dr Brouwer explained the effects of such an injury, and indeed the head injuries, might have exacerbated or accelerated the processes that led to his death arising from the direct trauma to the stomach.
Unlike the injury to the stomach which the accused submits could have occurred before the deceased's return home on that Sunday evening, there is really no explanation for the occurrence of this injury other than events which occurred inside the home that night or perhaps early morning.
A number of possibilities were canvassed as to how such a severe injury could have been sustained. Dr Marks opined that it would not have resulted from a mere fall in the bath. There is no contrary opinion.
One explanation offered by the accused is that Kevin might have accidentally trod on the deceased as he was lying on the floor when Kevin was going out to look for the ambulance. Dr Brouwer and Dr Marks said such an injury would not have been caused by an adult inadvertently stepping on the deceased. Dr Orde accepted it as a possibility but offered no further comment. Kevin said he was not wearing boots at the time.
In any event, Kevin did not say that he trod on the deceased that morning. It was not suggested to him that he did. Further, there was no suggestion by the accused of this happening until she was pressed to provide an explanation for the fracture in her third interview.
Dr Prelog, a paediatric radiologist, explained that the fracture was not a spiral fracture and thus could not have been caused by some form of rotation injury such as rotating the deceased's legs at some time, perhaps inadvertently a bit too forcefully. I accept that evidence.
When questioned by the Police during her second interview and being afforded an opportunity to explain this fracture, the accused said that she was in shock when she discovered the deceased that morning. During the course of her first two interviews she offered somewhat differing versions of what occurred but at least when confronted with the fact that the deceased had suffered such a fracture she said that she had shaken him when she picked him up and that she may have thrown him to the ground in shock.
Leaving aside the improbable nature of that suggestion and that on a close analysis of the second interview it is plain that the accused was really raising this in response to the Police questioning without having any memory of it happening, the consensus of expert opinion would not support such a mechanism of injury.
The floor was carpeted. Even if the accused did throw him to the ground to wake him up, it defies belief that she would have thrown him with such force that he would have sustained such an injury. In any event, I agree with Dr Currie that he was likely already dead by that point.
Further, according to Kevin when his attention was brought to the deceased's condition by the accused and he came back into the bedroom, he observed the deceased on the bed, and only after the triple-0 call was the deceased placed on the floor. In her third interview the accused said she placed the deceased on the bed. She again did not mention throwing him to the floor.
The other suggestion made by the accused during her Police interviews is that during attempts at resuscitation she pushed his legs up to his abdomen to force the vomit out. Again, leaving aside the improbable aspect of that explanation, the expert evidence does not support that as a possible explanation for the fracture of the femur.
There is no evidence, for example, that the deceased fell from his cot or even that he could climb out of his cot. The accused told the Police that he could not.
For the purposes of obtaining her qualifications to work as a carer at Burnside, she obtained a First Aid Certificate. She told the Police she had also done further training in first aid. It does seem an unlikely that a person with some first aid experience would respond to the discovery of a 20-month-old in the state that the accused says he was in by picking him up and shaking him, slapping him and throwing him on the floor as if to try and wake him up.
Further, assuming that the accused and Kevin were following the instructions of the triple-0 operator and were providing CPR and compressions, having placed the deceased on the ground from his earlier position on the bed, there is really no reasonable possibility as part of the process of resuscitation that either the accused or Kevin did something to the deceased's leg or hip area as part of the resuscitation that resulted in the fracture.
The fracture of the femur was of such a type that it could only have been inflicted by a high energy trauma, that is, significant blunt force trauma. The injury could not have been self-inflicted. No expert offered an opinion as to how this injury could have been sustained in an accidental way inside the home that night. Indeed, the evidence is to the contrary, in particular, that from Dr Brouwer and Dr Marks. Dr Currie only referred to this injury briefly. He thought it reasonably possible that the injury was caused peri-mortem, meaning around the time of death. He went onto say that in his opinion the deceased had been dead for some hours before the triple-0 call. If that be so, the deceased could not have fractured his femur as result of anything done to him by the accused after 5am.
I am satisfied that the deceased sustained a fracture of the femur by some action by another person inside the home before he died. Such force was required that the action could not have been inadvertent or accidental. The fracture arose from the deliberate application of significant force to the deceased. I do not know precisely what was done to the deceased, but I am satisfied that the only reasonably possible explanation for such a fracture that night was some form of deliberate and forceful assault on him.

[39]

The head injuries

There is evidence that the deceased used to bang his head and it is quite possible that he might have fallen over from time to time.
The Crown did not urge upon me any finding about this earlier bruising and I draw no adverse inference about the presence of bruising on earlier occasions.
Having regard to all the evidence, the earlier observed bruising to his face and torso was isolated in nature. It may be explicable through accidents or self-inflicted head banging. Having said that, none of the witnesses who gave evidence of their observations of the deceased at any time whilst he lived in the village mentioned ever observing the sort of extensive bruising which was apparent on the deceased at the time of his death.
Photographs were taken of the deceased as he lay on the hospital bed. Photographs were taken of the deceased during the autopsy, including photographs of his head and face and other parts of his body, and, in particular, with his head shaved showing the bruising to the back of his head.. Professor Lyons prepared diagrams marking the points where he observed bruising.
The ambulance officers observed extensive bruising to his forehead. Haley Mestroni also observed bruising to the chin and lips before suction had been applied, which was also not observed by any expert. This could be reflective of the gastric burn around the deceased's mouth. If it is it could only have arisen if the deceased was lying face down in his cot in his own vomit.
Dr Brouwer undertook an extensive analysis of the bruising. It must be that when the deceased returned home that night he did not have the substantial bruising to his face. That is, because no-one including family members observed it.
A video was taken of the deceased as he lay on the hospital bed. The marks to his face are obvious and significant and of slightly different colours. Those marks are not shown in the photographs taken of the deceased by JE on 21 March. They were not observed by persons at the function on 22 March. Something happened at the accused's home that night that caused those marks on the face. The marks include bruising abrasions and scratching including on the neck.
Bruising results from some form of insult to the skin and underlying tissue. A person is less likely to bruise from an insult to an area such as the abdomen which has underlying fat tissue than an area such as the forehead where there is very little to protect a person. Indeed, because of that underlying fat tissue, it is possible that a person might suffer a trauma, for example, to the abdomen, and no bruise results.
On the other hand, as is demonstrated in this case, there can still be bruising to the abdomen. It might be suggestive of significant force.
Further, in particular, the marks on the stomach above the umbilicus which were described by Dr Brouwer as being looking like finger marks were not observed by Mr Johnson when he was changing the deceased on 21 March. Mr Johnson provided a diagram to the Police as to where he observed bruising on the deceased and did not mention the front of the abdomen.
It is likely that some of the bruising observed by Professor Lyons and as shown in the photographs occurred at different times. For example, there was a bruise on the forehead and the back observed by Mr Johnson. MN said he saw a bruise on the arm.
The problem in identifying the age of the bruises arises at least to a certain extent because there is some lack of some specificity in the cell sections obtained by Professor Lyons.
However, some of the sections are sufficiently marked. For example, Professor Lyons refers to sections from the scalp. This can only be the top or the back of the head.
The presence of hemosiderin on the use of special stains in some sections on the head tends to suggest that those bruises would have occurred much more than hours before the deceased's death. It follows that, for example, the large bruise shown in the photograph and in Professor Lyons' diagram on the back of the deceased's head after his head was shaved most likely happened well before the night of his death. It follows that prior to his death and before the night of his death, the deceased had sustained trauma to his head which caused significant bruising to the top and back of his head.
Because of his hair this would not have been observed by anyone. In her third interview with the Police the accused described how the deceased would bang his head front and back. It is possible that such significant but unseen bruising was caused by such head banging but he must have been banging his head with real force to cause such bruising.
Having said that the best indicator of when the trauma which caused some of the bruising happened are people's observations. The accused told the Police she did not observe any bruising other than the five bruises on his forehead, which no-one else had observed and was quite inconsistent with the observations of Mr Johnson.
Those of the experts that commented did not consider that the bruising present on death was consistent with accidental injury or the accused's description of the deceased rolling in the bath.
It is possible that the deceased reacted adversely to being put in the bath. He might have squirmed and rolled but having regard to the expert evidence, this would not explain the nature and extent of the marks to the deceased's face and other parts of his body such as the umbilicus observed the next morning.
I am satisfied that the level and extent of bruising and marks to the deceased's body is not consistent with the deceased rolling and banging his head in the bath. I accept the expert analysis. I am satisfied that the marks on the deceased's face and some other parts of his body were caused by some sort of a struggle or assault which involved deliberate insult to those areas, through either slapping or forceful gripping.

[40]

The timing of the stomach injury

A number of possible explanations for the stomach perforation were put forward, including: 1. a punch, knee or kick by another person; 2. being struck by an animal such as being kicked by a cow; 3. being struck by a person on a swing, presumably a moving force versus a static force; and 4. jumping on a trampoline and falling on its side.
There may be many other possible ways in which a stomach perforation could occur involving significant blunt force trauma. As I have already indicated, no evidence was adduced from any witness which would tend to suggest that the deceased was either accidentally or deliberately hurt either at the Johnsons, at home on the Saturday night or at the neighbour's house on the Sunday.
I am satisfied that that the deceased was not hit by a child or by a person on a swing; or struck by an animal; or that he fell whilst on some play equipment such as a trampoline. He was not injured in a motor vehicle accident and other than when he was at the Johnsons, he was under the care and supervision of the accused.
Nothing said by the accused in her Police interviews raises the possibility of some other accidental injury befalling the deceased before he returned home at 9pm. Further, there is no evidence that he was struck by another person at the neighbours and the evidence does not suggest a reasonable possibility that he was. I am satisfied that he did not exhibit any behaviour consistent with having a stomach rupture at the neighbours' house.
In the end, perhaps the focus of the accused's submissions that there remains a reasonable possibility consistent with the accused's innocence was the expert evidence, particularly the expert evidence adduced from Dr Currie and Dr Orde. I have already commented on their evidence.
Their evidence does not cause me to have a reasonable doubt as to when the deceased sustained the injury to his stomach. I am unable to accept Dr Currie's opinion because it is based both on his analysis of the histopathology which is out of step with the analysis of the other experts (and he would defer to them) and his conclusions as to the observational evidence are either incomplete or not supported by all of the evidence. His assumptions as to the observational evidence are not consistent with my own findings.
The consensus of expert opinion is that the deceased suffered the perforation at the same time as he trauma which caused it. It would have produced symptoms such as pain and vomiting. It would have been painful to move and pressure on the part such as by picking him up or holding him on the hip would surely have been painful for him.
I am satisfied beyond a reasonable doubt that the deceased suffered that injury in the home on the Sunday night. I do not know precisely when he sustained the injury but would have been closer to the time he was put in his cot than when he was discovered the next morning.

[41]

Conclusion

This is a circumstantial case. It is necessary that I be satisfied beyond a reasonable doubt that the elements of the offence are established and I must not convict the accused of any offence unless the circumstances are such to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
Even accepting that the deceased may have had a tendency to bang his head in frustration and that may account for the occasional bruise seen on him at earlier times or even some of the bruising identified during autopsy, I accept the consensus of expert opinion that the bruising was unlikely to be accidental and would not have been caused by rolling in the bath.
The version given by the accused could not explain the number and positioning of the bruising particularly on the face, as well as the abrasions and fingernail scratches and abrasions to the neck. The accused's statements could not explain the bruises to the abdomen above the umbilicus in the very position where Dr Brouwer opined would be consistent with the type of trauma which may have caused the stomach perforation. The finger or knuckle marks were not caused by the deceased rolling around in the bath or the accused merely grabbing him in the area whilst he was in the bath or picking him up. The bruising above the umbilicus must have been caused by a forceful impact at that point like a punch.
I do not accept the accused's explanations for the fracture of the femur.
I thus do not accept the version of events proffered by the accused to the Police as to the occurrence of the injuries. As I do not accept it, I must put it aside and consider whether the Crown has discharged its onus of proof, having regard to the other evidence.
I am satisfied beyond a reasonable doubt, that having regard to all of the lay and expert evidence, that the injuries to the deceased were not caused accidentally or self-inflicted by the deceased. The facial injuries arose from someone either hitting him, slapping him, grabbing him or some way forcing him into a hard surface. Abrasions and fingernail scratching might suggest some type of resistance.
I am satisfied that when the deceased came home that night, he was not suffering from the type of bruising on his face or some of the other bruising such as around his umbilicus. He was not suffering from a fractured femur. He was not suffering from the effects of a stomach perforation. The next morning, he had died, and had sustained all of those injuries between coming home and death. I am entitled to have regard to the fact that the deceased sustained all of those injuries and that they occurred in the home that night, in my assessment of how they occurred. I am satisfied that injuries did not arise as part of the process of resuscitation.
The deceased suffered from three types of severe injuries that night. I am entitled to have regard to the fact of all of those injuries occurring in the house that night in my assessment of how they occurred. Whilst I have examined the injuries closely and independently, I must not approach my assessment in a piecemeal fashion.
I am satisfied having regard to all of the evidence that the deceased was the subject to some sort of violent assault that night. He could not have injured himself. There is no other rational inference available.
I have regard to the fact that the accused was a person of prior good character which means it less likely that she would commit such an offence but I must assess all of the evidence presented in this case. In my view, the evidence that the deceased was subject to a violent assault that night is compelling.
I have reviewed the Crown evidence critically having regard to the agreed forensic disadvantage, but there is really no explanation for the sustaining of the fractured femur or the perforated stomach in the home that night and the type of extensive injuries to the face which were not apparent when the deceased came home that night, other than a deliberate assault.
I do not know what happened in the bath, but I have accepted what Child 2 said she observed about the accused's conduct towards the deceased in the bath. She was handling the deceased roughly and she observed the forcing down into the bath. When Child 2 came back into the bathroom to go to the toilet, she observed the deceased suffering bruising around the eye. He was quiet. He simply looked at her, blinking. She did not know whether he was lying down or sitting up at the time. As he had at least that bruising by that time he must have been injured but he was quiet seemingly just looking up Child 2.
Further, Child 2 said that when she went back into her room she could hear the accused yelling at the deceased. Everyone else was in bed. It is not known why the accused was yelling at the deceased. The yelling must have gone on for some period as Child 2 said she asked her younger brother to ask the accused to stop yelling.
The accused was heard saying before she realised the triple-0 operator had picked up "They're going to think I bashed him". That is not evidence that she did bash him and she might have been referring to the obvious bruising on his face but the accused also told the Police that she was the only one who could have bashed him (of course without admitting that she did).
On the evidence before me, there is no other person who could have assaulted the deceased in his home that night. The possibility of any other person doing it was not raised by the accused.
I am satisfied that the injury was not accidental in the sense that it could not have been caused by the deceased falling or doing something himself. The obvious explanation for the stomach perforation is that which was shown above the umbilicus. As Dr Brouwer and Dr Orde explained, the injuries were round and organised in a linear pattern. They are suspicious of knuckle injuries, for example, just by a fist, such as by a punch.
All the experts agree that the stomach perforation could have been caused by a punch. Indeed, a punch to the stomach provides a rather obvious explanation for what occurred and would be consistent with all of the expert evidence including the evidence of all of the experts relied on by the accused. The fact that the experts could not exclude the possibility of some other trauma to the abdomen which was not revealed by a mark or bruise does not detract from the obvious explanation that the deceased may have been punched with such force so as to cause the stomach perforation. A punch would fit with Dr Currie's description of the type of force required and indeed fit with all of the expert analysis.
I do not know whether the deceased might have been the subject of the application of the sort of trauma or force necessary to inflict the stomach perforation at home before he was put to bed the first time, in the bath or at some later time, but I am satisfied beyond a reasonable doubt that that injury occurred after he returned home.
As I said at the outset, it is important not to assess the circumstances in a circumstantial case in some piecemeal fashion. I have endeavoured to deal with each of the injuries sustained and I have accepted that the fractured femur and at least some of the bruising was caused by an insult on the deceased in his home on that night.
I am entitled to have regard to that fact in assessing the mechanism and timing of the stomach perforation. I have identified why I have accepted that the injury to the stomach occurred in the home that night and I am satisfied that the injury to the stomach was part of the same transactional conduct, that is, the assault on the deceased, which happened inside the home.
The injury to the stomach and indeed the other injuries were not caused merely by the deceased being treated roughly. The impact which would have been necessary to cause the stomach perforation would have been substantial. It would have been such that I am satisfied that the force must have been applied with the intent to cause grievous bodily harm. There is no other inference available having regard to the nature and extent of the injuries.
I am satisfied that the deceased was violently assaulted by the accused after they returned home on 22/23 March 2015.
There is evidence that the accused behaved aggressively when she drunk. She had consumed six to eight beers. Kevin tended to suggest that she might have had a fair amount to drink but I would not make a finding based on Kevin's view of someone else's state of intoxication. There is no doubt that the accused had been drinking but the evidence does not allow me to make any finding as to the extent to which she might have been affected by alcohol. The only evidence about her response to alcohol is that she became aggressive when she drunk.
There is evidence that she was yelling at the deceased which would tend to suggest that she was in some way angry with him. The accused may have lost control when dealing with the deceased that night. It is possible that her memory of precisely what happened with the deceased that night was somewhat clouded or uncertain, hence her general statements to the Police about wanting to know what happened and not being able to believe that the deceased had broken his leg. However, whether the accused's memory of events was blurry or whether she was simply deliberately leaving matters out does not matter. I put those parts of her evidence which I do not accept aside and consider whether the Crown has discharged its onus
I am satisfied beyond a reasonable doubt that the accused assaulted the deceased and did something to him with such force, possibly a punch, that caused the stomach to perforate and which ultimately led to his death. I am not suggesting that the assault was planned. It may be that the accused simply lost control being angry with the deceased. I do not know when in the sequence of events at home that night the stomach perforation occurred or indeed when the fracture of the femur occurred. I do not know whether the accused might have struck the deceased before she placed him in the cot for the first time causing him to vomit. One explanation for this sort of struggle which the accused says was going on in the bath may be that the deceased was already in pain, the vomiting could have been an immediate response to the blow to the stomach. This is what Dr Currie described as the reaction to the perforation. In the end, I am unable to make any finding as to whether the deceased was struck a forceful blow before being put to bed for the first time or in the bath or some time subsequent to the bath.
However, I am satisfied beyond a reasonable doubt that the deceased was either deliberately struck by the accused on one or more occasions with such force that his stomach perforated and his femur fractured. Alternatively, his leg must have been twisted with such deliberate force or he must have been thrown against something with such force that his leg fractured. None of those events could have been accidental having regard to the expert evidence as to the force which would have been required coupled with the injuries, in particular, to the face, which suggest gripping or slapping or scratching. I am satisfied that the accused assaulted or attacked the deceased with such force as to cause all of those injuries.
In order for the accused to be convicted, I must be satisfied that there was a voluntary act of the accused and that the act was committed with the intent of causing grievous bodily harm. There is no evidence or even suggestion that the accused's acts that night would not have been voluntary. Whether she was affected by alcohol is irrelevant. The force required to cause the injuries would have been significant. The femur and stomach injuries could not have been caused by some accidental excessive gripping or inadvertent twisting. Whether or not the actions of the accused arose out of a temporary loss of control such acts by an adult on a 20 month old toddler could only have been intended to cause grievous bodily harm.
I am satisfied that the Crown has established that the accused is guilty of murder.
[Name redacted], you are convicted of the murder [Name redacted].

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (43 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (26)

Cited By (1)