REGINA v DOOLAN

LEGISLATION CITED : Mental Health (Forensic Provisions) Act 1990

Brown v The King (1913) 17 CLR 570 Deery v Deery (1953-1954) 90 CLR 211 Gibbons v Howley [1990] VR 762 (FC) CASES CITED : Pemble v The Queen (1971) 124 CLR 107 Regina v Ciantar (2006) 167 A Crim R 504 Regina v Stokes & Difford (199) 51 A Crim R 25 Regina v Stone (2005) 64 NSWLR 413 S v Recorder of Manchester [1971] AC 481

PARTIES : REGINA v Barbara Ann DOOLAN

COUNSEL : C: P Barnett SC O: L Wells SC

SOLICITORS : C: S Kavanagh O: Aboriginal Legal Aid

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HIS HONOUR: 1 The accused was charged on indictment dated 6 February 2009 that on 28 July 2005 she did murder her infant son, Zane Doolan, who was then aged five weeks. 2 On 5 March 2010, I delivered reasons for judgment, the hearing being a judge alone trial. In the judgment, I concluded that the infant victim died by drowning as a result of having been placed face down by the accused in a bathtub and her action in turning on the tap over the bath. 3 As recorded in the judgment of 5 March 2010, the Crown was required to establish beyond reasonable doubt:-

(2) Whether or not the death of the child was caused by the actions of the accused by drowning him in the bath or placing him in the bath in a way that would cause him to drown.

(3) That, at the relevant time, the accused had an intention to kill the child or to inflict grievous bodily harm. 4 On behalf of the accused, Ms L Wells SC contended that the evidence in the Crown case did not establish the second of the above three elements of the offence. On a review of the evidence and submissions, I concluded that the issue of causation could not be determined on the basis of statements that had been made by the accused, given that the statements had no or little reliability for reasons stated in the judgment. However, I concluded that the Crown had discharged the onus of proof on it in relation to the issue of causation to the requisite standard by reason of the evidence that established the particular factual matters as set out in paragraph [105] of the judgment. 5 A defence of mental illness was raised on behalf of the accused. A finding was made that on the evidence the accused was not guilty by reason of mental illness and an order was accordingly made for the accused's detention pursuant to s.39 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). 6 Following the making of the last-mentioned finding and order, the Crown raised the question as to the absence of an express finding as to the intention of the accused, although the Crown Prosecutor observed that it was implicit from the other findings in the judgment. 7 Ms Wells raised a question as to whether there could be a positive finding made as to the intention of the accused in circumstances in which I had determined that no reliance could be placed upon the accused's statements, being the statements identified in paragraphs [89] to [100] of the judgment. The Crown Prosecutor then proposed that, in order to provide Ms Wells with an opportunity of considering whether or not she wished to make any application, I set aside the finding and order made under s.39 of the Act. Ms Wells supported the Crown's proposed course of action. 8 I determined to proceed accordingly and set aside the finding and order. I adjourned the proceedings to Thursday 11 March 2010.

Application for the accused 9 Ms Wells, by written submissions dated 10 March 2010, made application to make further submissions on behalf of the accused concerning the element of intent on the charge of murder. 10 Ms Wells initially addressed the question of jurisdiction and contended that the Court was not functus officio and was in the position to hear the further submissions. 11 Reference was made in that respect to authority on what constituted a conviction for the purposes of a plea in bar of autrefois convict in Regina v Stone (2005) 64 NSWLR 413 in which the decision in S v Recorder of Manchester [1971] AC 481 at 489 was cited. It was submitted that the vacated finding in the present proceedings would be treated as provisional, allowing for the receipt of further submissions. 12 Senior counsel for the accused stated that she did not seek to traverse the findings made that the accused caused the death of her child, nor that she should not be found not guilty by reason of mental illness. Further, no issue was taken with the finding that the statements of admission were made by the accused as to the events surrounding the death of her child were so unreliable as to attract little or no weight at all. 13 Consequently, the application was to place detailed submission on the issue of intention. On the further hearing of this matter on 11 March 2010, Ms Wells confirmed that she had no objection to me proceeding to determine that issue.

Submissions for the accused on "intention" 14 It was submitted on behalf of the accused that the available alternatives on the element of intent were:-

(1) In relation to the finding of murder:- (a) reckless indifference to human life - the foreseeing of an act that is probable as distinct from possible that death will result from that act; (b) an intention to kill or do grievous bodily harm.

(2) It was also contended that a further alternative was the offence of manslaughter by criminal negligence, namely, an act or omission which so far fell short of the standard of care required by a reasonable person, that it went beyond a matter of civil wrong and amounts to a crime. Such an offence requires a very high degree of negligence. 15 The submission was that, on the evidence in this case, a finding could not be reasonably made that the accused had the intent to kill her child. The evidence relevant to the question of intent was entirely circumstantial. 16 Ms Wells accepted that the deceased child's body was found face down in the bathtub with the tap turned on, the child being only five weeks old at the time and that the accused was the only person who could have placed the child in that position. However, it was contended that, in relation to the proof of the element of intention, that the only witness who found the child's body, Howard Dennis, was unable to say with any certainty how much, if any, water was found in the bath, other than the water that was running from the tap. Reference was made to evidence given by Howard Dennis in cross-examination when he said there was no water in the bathtub at the time he found the baby in the bath. 17 Reliance was also placed upon the fact that Howard Dennis was consistent in saying there was no plug in the bath. Subsequent investigation of the scene showed the plug on the shelf in the bathroom. Ms Wells, in oral submissions, stated that the absence of a plug in the bathtub went to the issue as to what the accused intended. If she had intended to kill the child, Ms Wells stated, one would think that she would have put the plug in the bathtub and filled the tub with a quantity of water. 18 Reliance was placed on the evidence of Professor Roger W Byard who, in his report (p.3), stated that death by drowning can occur very rapidly in a very small amount of water, as little as five centimetres. This was said to be less than most people might reasonably anticipate. 19 In the written submissions, the position for the accused on the question of intent was expressed as follows:- "10. It is submitted for the accused that this evidence falls short of proof beyond reasonable doubt of an intention to kill. The presence of an intent to kill may have been demonstrated or accepted beyond reasonable doubt had the baby been found floating or face down in a quantity of water. The scenario described by the witness, Dennis, of there being no water in the bath and no plug is far more consistent with proof of the element of either reckless indifference to human life (murder) or criminal negligence (manslaughter). The defence would urge a finding of the latter."

Crown submissions 20 In the Crown submissions, it was noted that the Crown put its case to the Court for murder on the basis of intentional murder, alternatively, reckless indifference to human life. It was also noted that the Crown opened the alternative of manslaughter by criminal negligence. 21 Reference was made to the fact that, at the conclusion of the evidence, the issues addressed on behalf of the accused were, firstly, the issue of causation and, secondly, the defence of mental illness. However, the Crown also correctly observed that, whilst there was no address made on behalf of the accused in relation to the mental element, it was an element of the offence upon which I was required to be satisfied on the evidence presented. 22 In its submissions, the Crown set out, correctly (subject only to the fact there was one bath tap only turned on), the findings that had been made in the judgment delivered on 5 March 2010, namely:- "(a) The accused placed the child into the bath.

(b) The child was in the vicinity of the plug hole.

(d) The accused turned the bath taps into the bath on.

(e) The child was probably in the bath at the time that the community nurse called to the house, and could not gain entry about 10.45 am. (f) The child was still in the bath face down with the taps running at about 12.45 pm when Howard Dennis entered the house and found the child. (g) The child had died as a result of drowning." (Crown Submissions, pp.1-2) 23 On the threshold issue as to the jurisdiction of the Court to hear further submissions on the question of the accused's intent, the Crown placed reliance on authority to the effect that, in the case of a jury verdict, a trial judge has a right and, in some cases, a duty, whether in a civil or a criminal cause, to tell the jury to reconsider their verdict and that a trial judge is not bound to receive the jury verdict unless they insist upon him doing so: Brown v The King (1913) 17 CLR 570, citing the rule expressed by Pollock CB in Meany's case (at pp.591-592). 24 The Crown also referred to dicta in the joint judgment in Gibbons v Howley [1990] VR 762 (FC) and Regina v Ciantar (2006) 167 A Crim R 504 at 150-163. 25 The Crown submitted that the principles stated in the above cases provide sufficient authority for the Court vacating the verdict and the order made under s.39 of the Act. I accept the Crown's submission in that respect. 26 The Crown did not seek to oppose senior counsel for the accused making further submissions on the question of intention. 27 In the written submissions, the Crown contended:- "1. That in considering the evidence of Howard Dennis, the Court would find his description of what confronted him when he entered the bedroom as given on the day of the events more compelling than answers given in relation to cross-examination. His memory on the day of the events was clearly much fresher than when in the witness box and his mode of answering in the witness box tended to acquiesce with the proposition put. 2. In this regard, the Crown directs the attention of the Court to the following answers given in his electronically recorded interview at the police station on the day of the offence …" 28 The Crown then provided reference in the material contained in Exhibit A relating to the statements made by Howard Dennis during the course of his interview. 29 The Crown contended that, considering the circumstances as described, in particular by Howard Dennis, and the facts as found in the judgment given on 5 March 2010 (and consistent with the verdict announced), there was no reasonably hypothesis available inconsistent with guilt of murder. 30 The Crown, in oral submissions, emphasised that, on the basis of the findings made and expressed in the judgment of 5 March 2010, the evidence established that a clothed five week old baby had been placed face down into a bathtub with the tap turned on so that the water ran around the mouth of the child before exiting the bathtub via the plughole. Those facts, the Crown contended, meant that there was simply no other reasonable explanation than that the accused intended to kill the child or at least realised that it would probably drown in those circumstances because it would not be able to breathe by reason of the water running past his mouth and nose and death was a probability.

Consideration 31 In light of the submissions made, I have reviewed the evidence relevant to the circumstances concerning the death of the child. Howard Dennis was interviewed by the police on the day of the incident, 28 July 2005. In the electronically recorded interview (Exhibit A, tab 5, p.7), he said that he noted:-

• That there was water all over the floor when he walked in.

• He went into the bathroom but did not worry about turning the tap off when he saw the baby.

• He shortly thereafter grabbed the baby and took him to the lounge room. 32 Later in the interview, Howard Dennis, when asked to describe how much water was in the bathtub, said the child's head was under the water and that his whole face would have been in the water. He also stated that the baby's head was facing straight into the sink hole and there was no plug there. He confirmed that the tap was running and that, at some point, he leant over and turned the tap off (p.55). 33 At the committal hearing held on 11 December 2008, Howard Dennis, in chief, stated that the baby was lying face down in the bath in the plug hole, the water was still running and that the water was "… just running on top, the back of his head …" (p.41). He confirmed that there was no plug in the plug hole (p.52) and in cross-examination he confirmed that the water was running out of the tap onto the back of the baby's head. He described the baby's head facing straight into the sink hole and that "… he went down to the sink with the water or something" (p.54). 34 Howard Dennis was called to give evidence in the present proceedings on 4 February 2010. He confirmed in cross-examination that the taps were running in the bathroom and the kitchen and that there was quite a bit of water on the floor. It was put to him that he could not really remember how much water was in the bath on the day in question. He replied (transcript, p.95):- "No, there was no water in the bath, it just cold water was hitting his head and - - Q. So there was cold water hitting his head. What from? A. From the tap, the water …" 35 A little later he confirmed there was no water in the bathtub at the time although it is to be noted that this statement was made in the context of Howard Dennis saying the water was still flowing from the tap and hitting the baby's head. 36 There is a variation in the evidence given in the present proceedings as to the fact that there was no water in the bath (although the tap was still running) and the account given by Howard Dennis to police on the day of the incident in which he suggested that there was water in the bath. Be that as it may, it is clear that his evidence has been consistent throughout that the tap in the bath was on, that it was emitting cold water and that the water was discharging into the bath in circumstances in which the baby was face down at or near the sink hole. The evidence in that respect indicated that the nose and the mouth of the baby were exposed to running water as it passed over his head and into the sink hole. In his interview, in answer to question 245, Howard Dennis replied "… was sort of cloggin' the drain up, you know, from the water goin' out …". 37 The only medical evidence as to the quantity of water that can lead to drowning of an infant was, as earlier noted, the evidence of Professor Byard in his report dated 1 July 2007. In that report at p.3, Professor Byard stated:- "… The amount of water required to drown an infant may be quite small, with as little as 20 mls of fresh water per kilogram body weight resulting in significant electrolyte disturbances within several minutes. Children have drowned in as little as 5 cm of water in bathtubs …" 38 The evidence in the Crown case which I have again reviewed for the present application supports the following findings as to the actions of the accused and associated aspects:-

• The accused placed the baby into the bath face down specifically in that part of the bath where the sink hole was located.

• Either before or after doing so, she turned on the cold water tap thereby causing water to be discharged into the bath.

• The baby's face in the downward position was located in the area of the sink hole.

• Water running from the tap ran into the bath for some considerable time, from at least 10.40 am on 28 July 2005 when Ms Cronin from the Bathurst Community Health Centre knocked on the door until Howard Dennis found the baby in the bath.

• During that period of time, water from the cold water tap flowed towards the sink hole where the baby's face was located and, accordingly, to some degree accumulated in the area of the baby's face before passing into or through the sink hole itself.

Specific intention 39 Where the Crown has to establish the act of the accused was done with a specific intent (that is, that he or she sought by that act to achieve a particular result), it is usual to direct a jury in the appropriate case that a person's act may themselves provide the most convincing evidence of his or her intention. 40 Where it is put that a person who deliberately does such an act must have intended to inflict such injury, this is a statement that amounts to no more than an invitation to draw such an inference or conclusion because it is impossible to imagine from one's experience of life what other result the accused, himself or herself, could have sought to achieve by that act: Regina v Stokes v Difford (1990) 51 A Crim 25 at 30. 41 The principle is that as a person is usually able to foresee what are the natural consequences of his or her acts, so it is, as a rule, reasonable to infer that he or she did foresee them and intend them: Deery v Deery (1953-1954) 90 CLR 211 at 230 per Dixon CJ. 42 In accordance with accepted principle where proof is required beyond reasonable doubt, any inference should not be drawn from direct evidence unless it is the only rational inference in the circumstances. Where a specific result is the obvious and inevitable consequence of a person's act and where he or she deliberately does that act, then a conclusion may be drawn that the person did the act with the intention of achieving that specific result. 43 I have considered the submissions on behalf of the accused as to whether the facts proved in evidence could be said to establish what may be termed a reckless killing constituting murder or a negligent killing in the sense in which those terms are understood. See: Pemble v The Queen (1971) 124 CLR 107, 135. 44 The submissions made required a determination of the accused's state of mind with which the fatal acts were done. The acts of the accused proved in evidence establishes, in my opinion, a state of mind beyond recklessness in the sense of an indifference to a result of which at least the likelihood is foreseen and, it follows, one which clearly excludes an alternative finding of a negligent killing constituting manslaughter. 45 In the present case, it was and would have been known to the accused even in her condition at the time that an infant who was placed face down with the nose and mouth placed in close proximity to, if not directly on, the sink hole in the bath with the tap turned on would not survive. 46 Notwithstanding the submissions of learned senior counsel for the accused as to possible alternative verdicts, the combination of the accused's deliberate acts as established in evidence to the requisite standard, as I have found occurred, admits of only one conclusion, namely, that those acts were done by her with an actual intention of achieving the specific result or outcome to which I have referred, namely, that death would result from them.

Orders 47 I am, as stated in paragraph [151] of the judgment delivered on 5 March 2010, satisfied that at the time of doing the acts causing death the accused was mentally ill so as not to be responsible in law for her acts and, accordingly, I am required to return a special verdict. Accordingly, on that basis, I confirm the finding made in paragraph [152] of that judgment that the accused is not guilty of the charge of murder by reason of mental illness. 48 I order that the accused be detained, pursuant to s.39 of the Mental Health (Forensic Provisions) Act 1990, in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine until released by due process of law. 49 The Registrar is to notify the Minister of Health and the Mental Health Review Tribunal of the terms of the orders made by this Court. **********

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