Regina v Phillips

Supreme Court of NSW|1999-11-29|Before: Bell J, Barr J

New South Wales Supreme Court CITATION : Regina v Phillips [1999] NSWSC 1175 CURRENT JURISDICTION : Criminal FILE NUMBER(S) : 070009/98 HEARING DATE(S) : 22, 23, 24, 25, 29 November 1999, 2 December 1999 JUDGMENT DATE : 17 December 1999

PARTIES : Regina v Tracey Louise Phillips JUDGMENT OF : Bell J at 1

COUNSEL : Mr D Frearson (Crown) Ms C Lyons (Accused) SOLICITORS : S E O'Connor (Crown) Matthew Kevin Grew, Crichton-Brownes (Accused) CATCHWORDS : EVIDENCE - Admissibility - Tendency and Coincidence (Evidence Act 1995 (NSW) ss 97, 98, 101) - Whether probative value substantially outweighs prejudicial effect (s 101(2)) ACTS CITED : Evidence Act 1995 DECISION : Voir dire - admission of evidence rejected

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HER HONOUR: On 23 March 1998 the accused, Tracey Louise Phillips, was arraigned before Justice Barr on an indictment charging her with the murder of her infant child, Benjamin Skillin, on 27 August 1996 at Parkes. She entered a plea of not guilty and the matter was stood over for trial on 22 November 1999. 2 At the commencement of proceedings on 22 November 1999 I was informed that the Crown proposed leading evidence concerning the deaths of two other children of the accused, Natalie and Nathan. The Crown was also seeking to lead evidence as to a number of "acute life threatening events" to which various of the children of the accused had been subject. It was submitted that this body of evidence was admissible pursuant to ss 98 and 97 of the Evidence Act 1995 ("the Act"). 3 The whole of this evidence was the subject of objection by Ms Lyons who appeared on behalf of the accused. 4 It was apparent that this issue should be determined as a preliminary matter since it was central to the Crown's case. It was proposed that a number of expert witnesses be called and I was advised that the voir dire hearing might take in excess of one week. In these circumstances it was agreed that the appropriate course was to embark on the determination of this preliminary issue prior to empanelling a jury. 5 The accused put Benjamin Skillin to bed at about 5.30pm on 27 August 1996. He was aged 8 months. The accused was later to tell police that she had checked Benjamin at about 6.30pm and he appeared normal. Shortly before 8pm she again checked him. On this occasion she observed that he was lying on his stomach and making a bubbly noise. His face was white and his lips were blue. The accused picked him up and observed that he was unresponsive. She ran to the front door of her home where she saw her husband, Ken Skillin, alighting from a taxi. She said to her husband, "I've got to get Benjamin to the hospital 'cause he doesn't look like he's breathing". The baby was conveyed to the Parkes Hospital by taxi. The child failed to respond to attempts to resuscitate him carried out by staff in the Hospital's Casualty Section and he was declared dead at 8.39pm. 6 A post mortem was conducted by Dr Bradhurst of the New South Wales Institute of Forensic Medicine. He observed that the body was that of a well nourished and well developed infant of about the stated age. There was no evidence of any external or internal injury nor any evidence of congenital abnormality. There was no evidence of any significant disease. There was no old or recent bone injury. No relevant microbiological or biochemical findings were made. No drugs or poisons were found in the body save for a small quantity of paracetamol which is not relevant. Investigations for inherited metabolic disorders proved negative. The post mortem examination did not reveal any disease process which could have caused the death of the child. 7 In his post mortem report dated 17 January 1997 Dr Bradhurst stated: "I have not been able to determine the cause of death because, as referred to in Professor Byard's report, such autopsy findings in this age group may be seen in Sudden Infant Death Syndrome, in both accidental and induced asphyxia, in inherited metabolic disorders and, sometimes, in fulminant sepsis". 8 Dr Bradhurst went on to observe that inherited metabolic disorders and fulminant sepsis had been excluded. This left the cause of death as either Sudden Infant Death Syndrome or induced asphyxia. The post mortem findings were consistent with, but did not confirm or exclude, either condition. 9 When Benjamin was aged 2½ months he was admitted to the Calvary Hospital, Canberra, having suffered an acute life threatening episode ("ALTE"). 10 Benjamin was the fifth child born to the accused and her de facto partner, Kenneth Skillin. The eldest child, Robert, was born on 30 October 1989. He has had no significant medical history. 11 On 1 June 1991 Nathan was born. On 11 December 1993 Nathan died aged 2½ years. Dr Jain, who conducted the autopsy, concluded that Nathan died of aspiration pneumonia. 12 On 29 October 1992 Natalie was born. During her short life she was admitted to hospital on five occasions with what the Crown submits were ALTEs. On 4 August 1993 Natalie died. The cause of death was reported to be Sudden Infant Death Syndrome. 13 On 28 July 1994 Jack was born. On 16 July 1995 Jack was admitted to the Woden Valley Hospital with what the Crown submits was an ALTE. 14 The Crown seeks to lead the following evidence: · the fact and circumstances surrounding the death of Nathan · the fact and circumstances surrounding the death of Natalie · 22/4/93 - the circumstances surrounding the admission of Natalie to Calvary Hospital · 3/5/93 - the circumstances surrounding the admission of Natalie to Calvary Hospital · 7/5/93 - the circumstances surrounding the admission of Natalie to Woden Valley Hospital · 28/5/93 - the circumstances surrounding the admission of Natalie to Calvary Hospital · 24/7/93 - the circumstances surrounding the admission of Natalie to Woden Valley Hospital · 16/7/95 - the circumstances surrounding the admission of Jack to Woden Valley Hospital · 24/3/96 - the circumstances surrounding the admission of Benjamin to Calvary Hospital 15 The Crown presses the admission of this body of evidence as "related events" which prove, because of the improbability of them having occurred coincidentally, that the death of Benjamin was caused by induced asphyxia; s 98 of the Act. Alternatively, the Crown submits that the evidence is admissible as evidence of "tendency" pursuant to s 97 of the Act. The tendency identified by the Crown in this respect is "for the accused to conduct herself in a way detrimental to the well-being of her children and to cause breathing difficulties and attendance at hospital". Finally, the Crown submitted the evidence (or some portion of it) was admissible as "relationship evidence". 16 Evidence may only be admitted pursuant to ss 97 and 98 of the Act if, inter alia, the party adducing the evidence has given reasonable notice in writing in accordance with the regulations of its intention to adduce the evidence. I was informed that a form of notice dated 7 April 1999 enclosing the Crown case statement which forms part of Ex VDA had been served on the solicitors acting for the accused. No objection was taken concerning the manner or form of the notice. To the extent that the notice fails to comply with the requirements of the regulations, I dispensed with the requirement for the same pursuant to s 100 of the Act. 17 At a criminal trial tendency evidence or coincidence evidence may only be admitted against the accused if it meets the requirements of s 101(2) of the Act, namely, that the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the jury. 18 "Probative value" means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (Dictionary to the Act). The fact in issue is said to be the cause of death of the infant Benjamin. 19 The prejudice with which s 101(2) is concerned is the risk that the jury will use the evidence on a basis logically unconnected with the issues in the case: R v Lockyer (1996) 89 A Crim R 457 at 460; R v Colby [1999] NSW CCA 261. If there exists a rational explanation for the evidence other than the inculpation of the accused with the offence charged the test in s 101(2) will not be met. The evidence in such a case would lack the necessary probative value: Pfennig v The Queen (1995) 182 CLR 461; R v Lock (1997) 91 A Crim R 356 at 363; R v AH (1997) 98 A Crim R 71 at 78. 20 The Crown's primary position was that the deaths of Natalie and Nathan and the ALTEs were "related events" for the purposes of s 98 of the Act. Two or more events are "related events" if, and only if, they are substantially and relevantly similar and the circumstances in which they occurred are substantially similar; s 98(2). 21 The Crown points to the following as demonstrating substantial and relevant similarity for the purpose of the section:

(i) each event occurred with respect to a natural child of the accused;

(ii) in each case the accused located the child at a time when the child was not breathing or was experiencing breathing difficulties;

(iii) the accused arranged in each case to take the child to hospital;

(iv) the accused's de facto husband was "unavailable" in the context of a background of domestic friction. 22 Ms Lyons did not concede that (ii) and (iv) were established by the evidence. 23 The Crown tendered a bundle of documents including expert reports, statements made to the police by the accused and by Kenneth Skillin, statements made by neighbours, copies of the hospital notes relating to the various admissions of Natalie, Nathan, Jack and Benjamin, and transcript of evidence given in care proceedings. 24 Oral evidence was led from the following expert witnesses:

(i) Dr Bradhurst, the forensic pathologist who carried out the post mortem examination of Benjamin;

(ii) Professor Byard, specialist forensic pathologist attached to the Forensic Science Centre, Adelaide and Associate Professor in the Department of Paediatrics and Pathology at the University of Adelaide. Professor Byard has made a specialist study of SIDS.

(iii) Dr Suzette Booth, paediatrician. Dr Booth has a great deal of experience in the field of child abuse. For a number of years she was the head of the Child Protection Unit at the Royal Alexandra Hospital for Children. Dr Booth was consulted when Jack was admitted to that hospital at the age of 11 months because of concerns arising out of a life threatening episode. She was also involved in the care of Benjamin when he was admitted to the New Children's Hospital aged about 6 months.

(iv) Dr Kerrigan, paediatrician practising in Orange. Dr Kerrigan treated Natalie for a urinary tract infection.

(v) Professor Isaacs, a Clinical Professor attached to Sydney University. His speciality is paediatrics. He is Staff Physician in the Department of Immunology and Infectious Diseases at the Children's Hospital, Westmead.

(vi) Dr Seton, paediatrician, working at the Children's Hospital, Westmead Sleep Disorders and Sudden Infant Death Research Unit.

(vii) Dr Kieran Moran, Senior Staff Specialist Paediatrician at the Sydney Children's Hospital. Dr Moran also has very considerable experience in the field of child abuse. He is the Medical Director of the Sydney Children's Hospital Child Protection Team.

(viii) Dr Collins, consultant forensic pathologist. 25 It is appropriate at this point to briefly outline the evidence concerning each of the hospital admissions upon which the Crown relies.

Natalie Admission to Calvary Hospital - 22 April 1993 26 Natalie was brought to the hospital by her mother. The history recorded in the hospital notes is that Natalie had a bottle and was then observed to be gasping for breath for ten minutes. She went very pale. She was described as having had a rattly chest for two days. On presentation at the hospital she appeared quite well and the accused was advised to return in the event of any recurrence.

Admission to Calvary Hospital - 3 May 1993 27 The hospital notes record that Natalie presented as a 6 month old baby with a second episode - twenty minutes of crying due to pain, then had trouble breathing - sounded "blocked" then went limp and pale and floppy. She was not cyanosed. The incident occurred one hour after a bottle. She was sitting in her bouncer at the time. An examination of the child showed that she was pale but alert. The notes suggest consideration was given to this episode being gastro oesophageal reflux or a breath holding attack.

Admission to Woden Valley Hospital - 7 May 1993 28 Natalie was admitted on 7 May 1993 and discharged on 9 May 1993. The reason for admission was given as croup/apnoea/social admission. The emergency department notes record a history of five days of stridor. On examination the child was described as having obvious stridor. Otherwise she was reported to be looking very well. A provisional diagnosis of viral croup appears to have been made.

Admission to Woden Valley Hospital - 24 July 1993 29 Natalie was brought to hospital by ambulance. She was admitted at 8.39pm following what was described as a funny turn at home that evening. The history supplied was that Natalie went pale, listless and lethargic. Her fingers went blue and her face white. Her breathing was shallow, slow, quiet. Her eyes rolled back. On examination it was noted that she had a discharge from her left ear. Her throat was red and her tonsils enlarged and there was a query as to flecks of pus. The provisional diagnosis made by medical staff on this occasion appears to be that she had an atypical seizure.

Jack Admission to Woden Valley Hospital - 18 July 1995 30 The emergency department records record that the accused telephoned reporting that Jack was not rousable and that his pupils were dilated. She was advised to call an ambulance. The nursing admission sheet records the accused as advising that she had been unable to wake the baby up. He was described as having been not rousable for twenty minutes. He had recovered by the time the ambulance arrived. The medical notes suggest provisional diagnoses of apparent life threatening event / "more likely seizure" were considered by those treating Jack at the time. It was also noted that Jack had a history of asthma. He was referred to Dr Seton of the Sleep Disorder Unit at the Royal Hospital for Children. 31 It is to be noted that the sleep study undertaken on Jack was normal.

Benjamin Admission to Calvary Hospital - 24 February 1996 32 The hospital notes record: "Baby brought in by mother and neighbour, baby is two months old. On appearance, pale, lethargic, no response to external stimulus, lips dry and query cyanosed or blue, intercostal indrawing, shallow breathing" (T22/23). 33 Benjamin was transferred from the Calvary Hospital to Woden Valley Hospital. The Woden Valley Hospital notes for 25 February 1996 record the history given by the accused: "Heard babe cry out, laboured breathing, pale and limp, query arm tremors, picked up child. Breathing less laboured, taken to Calvary". 34 None of the medical staff who attended Natalie, Jack or Benjamin gave evidence concerning any of the admissions. The medical notes in relation to each admission were in evidence on this application. A number of expert witnesses were invited to comment on the significance of entries contained in the hospital notes. 35 The Crown sought to characterise each of the subject admissions as ALTEs. I should note that while some witnesses described ALTEs as "acute life threatening events" Dr Moran explained they are "apparent life threatening events". It is not clear that a great deal turns on this. Jack's admission on 18 July 1995 is described in the hospital notes as being possibly an apparent life threatening event.

36 The criteria for ALTEs includes that the child appears lifeless, pale, blue and not breathing for twenty seconds or more. The child's heart rate has to be slow (Professor Byard - T31). 37 Turning, firstly, to Natalie's admissions, Professor Byard observed that there was a deal of contradiction in the evidence. I took him to be saying in this regard that he did not accept that the evidence pointed to each of her admissions being ALTEs. As to her admission on 22 April 1993, Professor Byard considered this was consistent with an episode of difficult breathing associated with reflux while she was feeding. He did not consider the medical records concerning this admission to fulfil the criteria for an ALTE. Dr Kerrigan, a Paediatrician who had treated Natalie in relation to a urinary tract infection of some severity, did not demur to the suggestion that the notes were consistent with Natalie suffering from a reflux problem. Dr Moran was of a like view. Again, Professor Byard considered the provisional diagnosis made by staff at Calvary Hospital in relation to the 3 May 1993 admission, namely, that it had been a gastro oesophageal reflux or possibly a breath holding attack, to be an explanation for the incident (T37). Dr Kerrigan did not demur to this suggestion. Dr Moran agreed. 38 As to Natalie's admission on 7 May 1993 Professor Byard observed that the medical notes included reference to the child having what looked like a viral infection. She had large lymph glands in her neck. She was thought to be suffering from viral croup. This is a viral infection of the upper airway and causes babies difficulties in inhaling. That leads to the noticeable "croupy" noise in breathing. This was consistent with the history of five days of stridor. Stridor is the sound made when a baby inhales. I do not understand the evidence concerning this admission to involve an incident of breathing difficulty relevantly similar to a number of the admissions on which the Crown relies. The evidence supporting the view that Natalie on this occasion was suffering from viral croup was persuasive. 39 A deal of attention was devoted to Natalie's admission to the Woden Valley Hospital on the evening of 24 July. This was the occasion when treating medical staff considered that Natalie may have suffered an atypical seizure possibly as secondary to urinary tract infection (T19/20). She also had tonsillitis. Dr Bradhurst noted that the signs of peripheral cyanosis may be explained by tonsillitis since a fever can produce this condition due to constriction of the blood vessels (T21). 40 Professor Byard considered that Natalie may have suffered a convulsion consistent with a reaction to an infection. He noted that she had a discharge from her left ear which was suggestive of bilateral middle ear infection (T38). Febrile convulsions are common in children aged between six months and six years. They are brought on by a high temperature. One in twenty children will suffer a febrile convulsion (T72). In a child under twelve months a febrile convulsion may involve the child becoming atonic (limp), floppy and rolling their eyes. There was an issue as to whether Natalie's presentation was consistent with febrile convulsion since her temperature recorded on admission was 36.5 degrees. It was common ground among all the expert witnesses that this temperature was within the normal range and was not indicative of a febrile convulsion. However, there was evidence that childrens' temperatures go up and down quite rapidly when young (T74). The day following her admission Natalie's temperature peaked on two occasions. This was consistent, according to Dr Bradhurst, with her having "some underlying febrile process" (T80). In this regard Dr Bradhurst considered that the tonsillitis could have been significant. 41 Both Dr Kerrigan and Professor Isaacs appeared to place some significance on the results of an EEG conducted on Natalie on the occasion of her admission on 24 July 1993. Dr Kerrigan relied on a letter received from Dr Hufton which was understood to paraphrase the contents of the EEG report. Dr Hufton's letter asserted that the EEG had revealed excessive slow wave activity. This would be a significant finding since it would suggest a brain insult of considerable proportions. Only a prolonged seizure would produce such a pattern. Asphyxia would also produce such a result. In the course of the evidence of Dr Moran the original EEG report was tendered. The EEG report for Natalie was normal. Inexplicably, it appears that Dr Hufton had been either supplied with incorrect information or there had been some misunderstanding when he received a briefing on the results of the EEG. 42 In relation to Natalie's medical history there was evidence to suggest that she suffered from gastro oesophageal reflux. This can produce symptoms consistent with her admissions on 22 April and 3 May 1993. It is also clear that Natalie had suffered a severe urinary tract infection. This was the difficulty for which Dr Kerrigan had treated her. 43 The picture which emerged with respect to Natalie's admissions seemed to me to be a complex one. To simply describe each admission as the child being brought into hospital with breathing difficulties is to introduce an element of artificiality. The way the Crown approached the matter was to contend that, though each individual admission could be explained on medical grounds other than an ALTE, when viewed as a whole (and in conjunction with the incidents involving Jack and Benjamin) the evidence pointed irresistibly to the view that these medical emergencies were being created by the deliberate act of the accused. 44 The admissions of both Jack and Benjamin with ALTEs appear to fit the pattern advanced by the Crown a little more comfortably. Even here there were medical explanations other than the one advanced by the Crown. Thus, the principal diagnosis in relation to Jack's admission on 16 July was that he had a seizure with a possible apnoea episode together with a diagnosis of asthma. 45 In the case of Benjamin's admission on 24 February 1996 Professor Byard considered that the sequence of events reported was not diagnostic of an ALTE. In this regard he considered it significant that Benjamin's pallor, unresponsiveness and limpness followed an episode of gagging and vomiting. That history, if accurately reported, suggested more an episode of reflux (T41). 46 Benjamin was investigated for reflux during his stay in the Woden Valley Hospital. Those investigations showed that he suffered several episodes of gastro oesophageal reflux. Dr Booth said that the history was not suggestive of reflux as an explanation for the admission on this occasion. Benjamin had a milk scan which is a way of testing for reflux. The scan showed several episodes of gastro oesophageal reflux none of which reached the point of going into the lungs. She noted that reflux is a very common disorder in babies and it does not cause acute life threatening events such as the one experienced by Benjamin (T59). Dr Moran took strong issue with Dr Booth as to this aspect of her evidence. Dr Moran said that gastro oesophageal reflux and the mechanism whereby it causes an ALTE in babies is by means of stimulation of laryngeal chemoreceptors and that can occur with regurgitant or non-regurgitant gastro oesophageal reflux. He went on to explain that one may never see vomiting in a baby with gastro oesophageal reflux. Such a baby may suffer life threatening events as a result of the reflux. That is because small amounts of acid stimulate the chemoreceptors in the larynx causing apnoea and brachycardia. In summary, Dr Moran considered Dr Booth's observations concerning the results of the tests of no relevance in determining whether Benjamin's admission on 24 February 1996 was in consequence of an episode of reflux (T118). 47 The Crown placed some emphasis on the evidence of the sleep study results for Jack and Benjamin. Taken in conjunction with other evidence it was submitted that these results pointed strongly against a diagnosis of SIDS in relation to the death of Benjamin. 48 Sleep studies were carried out on both Jack and Benjamin. These were conducted at the Sleep Disorder Unit, Children's Hospital, Westmead. The studies showed both babies to have normal sleep patterns. The significance of this finding with respect to the exclusion of a diagnosis of SIDS as a cause of death for Benjamin was a matter of some controversy. 49 Dr Seton, who specialises in infant sleep disorders and is attached to the Children's Hospital Sleep Disorders and Sudden Infant Death Research Unit, considered the sleep study results of significance tending against SIDS as the cause of the death of Benjamin. Dr Seton accepts that the causes of SIDS are unknown and that there are a number of different mechanisms advanced to explain the phenomenon. I understood Dr Seton to be strongly of the view that sleep apnoea is a strong predictor of SIDS. For this reason his unit carries out sleep studies designed to detect apnoea in infants. Babies who present with apnoea are at risk and their parents counselled accordingly. There are various preventative strategies which may be brought into play to reduce the risk of death. Dr Seton considers that the reduction in numbers of children dying from SIDS is in part a reflection of the success of the work undertaken by his clinic and others like it. This is in the context of a public education campaign which has encouraged parents to lie babies on their back, ensure the baby is not overheated, and avoid smoking in the presence of the baby. 50 Dr Seton said that there are reported cases of families losing more than one child as the result of SIDS. His clinic has dealt with such cases. In Dr Seton's experience families who suffer from multiple SIDS deaths have a history of apnoea. It is to be expected that one or both of the parents will suffer from apnoea and that the baby, if tested, would not exhibit a normal sleep pattern.

51 Professor Byard includes amongst his impressive qualifications a degree as Doctor of Medicine conferred by Adelaide University. His thesis was titled "Sudden Natural Death in Infancy and Early Childhood - An Analysis of Aetiological Mechanisms and Pathological Features". The thesis provided an overall classification, analysis and investigative framework for causes of natural death in infants and young children. Subsequently, in 1997, Professor Byard obtained the degree of Master of Medical Science, again from the University of Adelaide. On this occasion his thesis "Accidental Childhood Death in South Australia from 1963 to 1996" provided an overview of accidental childhood deaths based on a study of 369 cases over a 34 year period. Professor Byard has published extensively on the phenomenon of SIDS and presented as a most impressive witness. He did not consider the circumstance that Benjamin and Jack had normal results on sleep studies to be significant. He considered that the literature concerning the association between sleep studies and their relationship to SIDS to be contradictory. A great deal of the sleep study data is based on work conducted by Professor Andre Kahn in Belgium. Professor Byard was somewhat qualified in his views concerning the Kahn study. I note that he has had personal discussions with Dr Kahn concerning the methodology. 52 Generally, Professor Byard observed that SIDS is a very heterogenous group of predispositions. For some children it may be a problem with respiratory control, for others a problem with control of the heart, some children respond badly to external stresses such as sleeping face downwards or cigarette smoke. The suggestion that sleep studies provide a gold standard test in relation to SIDS was one with which Professor Byard quite strongly disagreed. I note that when Dr Bradhurst sought advice concerning the cause of death of Benjamin it was to Professor Byard that he turned. I do not think that a great deal of weight, having regard to the conflict of views concerning this issue, can be placed on the results of the sleep studies conducted on Jack and Benjamin.

Nathan's death - 10 December 1993 53 Nathan was brought by ambulance to the Woden Valley Hospital at 9.26pm on the evening of 10 December 1993. The history given was that the accused had found him unresponsive in bed. It appears there had been a fifteen minute wait prior to the arrival of the ambulance. When the ambulance arrived at the home Nathan had no heart beat. On arrival at the hospital's emergency department he had a blood pressure of 90/40 and a pulse of 120 but fixed, dilated pupils (T23). 54 Dr Jain carried out a post mortem examination of Nathan and concluded that the cause of death was aspiration pneumonia. Aspiration pneumonia is to be distinguished from infective pneumonia. The former is caused by the aspiration of gastric contents into the lungs. It is not a common phenomenon in a healthy 2½ year old child. The body has mechanisms to prevent the aspiration of gastric material into the lungs. 55 The significance of Nathan's death on the Crown case is that, taken together with the other evidence which the Crown presses on this application, it is submitted that the tribunal of fact might infer beyond reasonable doubt that Nathan's death was caused by the deliberate act of the accused. In this respect the Crown advanced two theories: (i) the accused had smothered Nathan causing him to vomit and inhale some of the vomitus (ii) the accused had put her fingers down Nathan's throat causing him to vomit and then obstructed his mouth by her hand or some object again causing him to inhale the vomitus. To contend that the death of Nathan was a "related event" for the purposes of s 98 of the Act in the sense of being relevantly and substantially similar to the ALTEs and the deaths of Natalie and Benjamin on this analysis presents some difficulties. 56 The Crown contends as one of the features of relevant similarity that the accused on each occasion generated a medical emergency by causing the child to have breathing difficulties (by suffocation). Thereafter she arranged for the children to be admitted to hospital. This is said to have taken place against a background of some difficulty in her relationship with her partner, Ken Skillin. It is said that on each occasion Mr Skillin was absent from the home save on the evening when Natalie died when he was "unavailable" as the result of intoxication. On this view the deaths of Benjamin and Natalie were not the outcome which the accused had sought. Rather, they were the unintended result of her deliberate action in smothering the children to create a medical emergency justifying the child's admission to hospital. 57 The ALTEs and the deaths of Natalie and Benjamin occurred while each of the children was aged less than twelve months. Nathan had no history of ALTEs. His death at the age of 2½ years might be thought to fall outside the pattern for which the Crown contends. By 2 ½ years children may be able to put up some resistance to attempts to smother them. They are able in a limited way to describe events. 58 The Crown was driven to leading evidence of a highly speculative nature to explain the mechanism of Nathan's death (accepting the child to have died of aspiration pneumonia). In this regard the evidence that the accused might have placed her fingers down the child's throat seems to me to invite the sort of speculation by medical expert witnesses which was criticised by the Court in Straker v The Queen (1977) 51 ALJR 690. 59 To compound the difficulties concerning the death of Nathan, I should note that there is controversy concerning the cause of death. Dr Jain's autopsy findings revealed that both Nathan's lungs showed acute bronchopneumonia. Such a pneumonia may be produced by the aspiration of gastric contents but equally may be the result of infection. 60 Professor Plueckhahn reviewed Dr Jain's autopsy findings. Professor Plueckhahn is an eminent forensic pathologist the co-author of a leading text in the field of forensic pathology. He examined the fourteen histopathology sections of tissues taken at autopsy. He agreed with the finding that both lungs revealed acute bronchopneumonia. In his view the microscopic changes in the lungs were those of an acute bronchopneumonia of at least four to six hours duration. He considered such a pneumonia probably acutely infective in nature. Professor Plueckhahn noted that a gram stain on three lung sections might assist in further elucidating the aetiology of the acute response. Subsequently, Professor Plueckhahn studied three lung slides. The quality of staining was excellent. The slides showed bacteria, the appearance of which, in his view, was consistent with pneumococcal pneumonia. The appearance was not consistent with prior aspiration of gastric contents. Professor Plueckhahn concluded that attempted manual suffocation played no part in Nathan's death. In his view, the probable cause of death was pneumococcal pneumonia. 61 Associate Professor Hilton, Director of the New South Wales Institute of Forensic Medicine, reviewed the post mortem findings relating to Nathan's death. In Professor Hilton's view the pathological findings supported bronchopneumonia as the cause of death. He observed: "The primary diagnosis here is of focal pneumonia of sufficient severity to at least be life threatening for a young child but it is not possible here to be more firm than to say Nathan Skillin died with focal pneumonia of recent onset. It is at least possible that that pneumonia was the direct cause of his death. Such infections can cause apparent sudden death of a child with little or no premonitory signs or symptoms. The duration of the pneumonic process is at least of several hours in this case". 62 Professor Byard had regard to the x-ray conducted on Nathan following his admission to hospital and to the reports of Professors Plueckhahn and Hilton. I think it fair to observe that Professor Byard considered the accused's description of Nathan playing uneventfully not long before his death to be inconsistent with pneumonia. Professor Isaacs, who is expert in the field of infectious diseases in children, considered the history of Nathan being apparently well not long before his death to be inconsistent with him suffering from pneumonia. Nonetheless, Professor Byard favoured infective pneumonia as the probable cause of death. As I understood his evidence, he did so because, notwithstanding a number of circumstances of suspicion (having regard to the family history) there was physical evidence suggestive of infective pneumonia as the cause of death. In such a case it is difficult to put that to one side. 63 Dr Booth accepted that Nathan had died of pneumonia. She took issue with the significance of the pneumonia in terms of its role in his death. In her view it was likely that Nathan's death was the result of asphyxia. She postulated that something had been done to Nathan to both interfere with his breathing and to cause him to aspirate vomitus into his lungs. As I understood Dr Booth's evidence she considered that Nathan was brain dead as the result of asphyxia at the time of his admission to hospital. Thereafter he was ventilated. It is common ground that ventilation can produce pneumonia. She considered the rapid onset of pneumonia to be the result of the child being ventilated. Professor Isaacs was of a like mind. Dr Booth observed of Professor Hilton and Professor Plueckhahn's reports: "Those findings are entirely consistent still with a non-accidental cause of death" (T56). 64 I did not understand any of the expert witnesses who gave oral evidence to gainsay the possibility that Nathan had died in consequence of a non-accidental cause of death. This hardly assists the Crown. 65 There remains a real issue as to the cause of Nathan's death. A number of highly qualified pathologists (whose field of expertise is the determination of causes of death) favour a view that the child's death was from natural causes as the result of an infective process.

Natalie's death - 4 August 1993 66 Natalie died on 4 August 1993. The accused reported finding the child on her back, apparently having difficulty breathing, cold, limp and making a wheezing sound. She alerted her neighbour, Mrs Stephens, who came to the house. Attempts were made at resuscitation. On this occasion Ken Skillin was at home. At the time when the accused first sought help from Mrs Stephens Mr Skillin was asleep having consumed a quantity of alcohol. He was roused and assisted in the attempts to resuscitate Natalie before she was taken to hospital. Natalie's death was attributed to SIDS. 67 Dr Bradhurst, Professor Byard and Dr Byron Collins would not be prepared, having regard to the family history, to affirmatively conclude that Natalie's death was from SIDS. Her death, like Benjamin's, is unexplained in the sense that no injury or disease process was identified. 68 As I have noted, the Crown accepts that there are explanations for the various admissions of Natalie to hospital. It accepts that explanations can be found in relation to the ALTEs experienced by Jack and Benjamin. The Crown acknowledges that Nathan's death does not fit within the pattern in a precise way. Nonetheless it is contended that, when one takes all these events into account, there exists no rational explanation but that they were brought about by the deliberate acts of the accused. 69 In commending a view that the whole of the evidence pressed by the Crown should be looked at with a view to determining whether a reasonable hypothesis consistent with innocence had been excluded, the Crown referred me to the decision of the court in Sutton v The Queen (1984) 152 CLR 528 and particularly to the observations of Dawson J at 567. His Honour observed: "It is not, I think, a case in which any one circumstance common to the various offences was sufficiently striking to eliminate any reasonable possibility of coincidence. Rather it was the accumulation of common circumstances which had that effect. It is, of course, possible to consider each similar fact in the context of other similar facts and conclude that, looked at together, mere coincidence is not a reasonable hypothesis but be unable to reach that conclusion viewing each set of similar facts separately." 70 The court in Sutton was concerned with the similar fact evidence rule at common law. It is to be noted that s 98 of the Act provides that evidence that two or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act unless certain conditions are satisfied. Further, as noted above, two or more events are taken to be related if, and only if, they are substantially and relevantly similar and the circumstances in which they occurred are substantially similar. 71 In this case the Crown has sought to deal with the requirements of s 98 by specifying by way of points of substantial and relevant similarity four criteria of considerable generality (see paragraph 21 above). 72 Ms Lyons submits, with some force, that the fourth indicia of similarity is not established by the evidence. The Crown makes a case that the accused created medical emergencies when her partner was away. On the night Natalie died Mr Skillin was at home. Whether he was intoxicated or not seems to me to have little significance in this context. It is one thing to contend that when there were difficulties in the relationship and Mr Skillin absented himself the accused would make her children sick in order to get attention. Such a theory might, having regard to the various other episodes, have some credibility. It does not sit with the circumstances of Natalie's death. As Ms Lyons points out it does not sit entirely comfortably with the circumstances of Benjamin's death. True it is that there is a suggestion that the accused and Ken Skillen quarrelled earlier on that day about his decision to go to a rodeo. Despite this he went to the rodeo. Nonetheless he was returning home in the ordinary course at the time the accused sought help for Benjamin. 73 As to the second indicia, namely, the accused finding the children at a time when each child was experiencing breathing difficulties, I have some hesitation in seeing that as fairly embracing Natalie's admissions on 7 May or 24 July 1993. The evidence suggests that on the former occasion she had viral croup and on the latter occasion she had, among other problems, tonsillitis and a middle ear infection. I have considerable hesitation about accepting that indicia is made out with respect to the death of Nathan. In this sense I have some doubts that the Crown has established that the death of Nathan, and Natalie's admissions on 7 May and 24 July 1993 are "related events" within the meaning of s 98. In the light of the view that I take of this matter it is not necessary for me to decide the point. 74 It is common ground that if a rational hypothesis exists consistent with the innocence of the accused the evidence as to the ALTEs and the two other deaths is not admissible either as coincidence evidence under s 98 or as tendency evidence under s 97. I do not consider I can exclude such a possibility. 75 I should note that the Crown led some evidence from Dr Seton concerning the statistical chance of three children dying from failure of breathing in sleep. This was expressed as a chance of 1 in 614,000,000. I am not persuaded that I can reason towards the exclusion of a rational possibility consistent with innocence upon the basis of statistical material of that kind. This is illustrated pointedly by the evidence concerning Nathan's cause of death. Eminent forensic pathologists consider it probable the child died of natural causes. 76 It is to be borne in mind that the fact in issue is the cause of death of Benjamin. A vice to be avoided is to proceed upon an assumption that Benjamin's death was the result of induced asphyxia in order to strengthen the inference to be drawn from the other material as tending to the view that the various medical emergencies were all the result of the mother's deliberate acts. 77 In Perry v The Queen (1982) 150 CLR 580 Gibbs CJ, in explaining why evidence relating to the death of the accused's brother, Duncan, was inadmissible, observed: "It was not established that Duncan had ingested any poison (except of course the barbiturates, with whose consumption the applicant was not shown to have had anything to do). It was necessary for the Crown to rely on the other instances of poisoning, including those the subject of the present charges, in an attempt to provide a basis for an inference that Duncan had suffered from arsenical poisoning. In other words, it was necessary to assume the guilt of the applicant of the offences of which she was charged in order to render admissible the evidence regarding the death of Duncan. Such a line of reasoning is obviously objectionable". (page 589/90)

78 I did not understand any of the witnesses who gave evidence in the proceedings before me to be of a view other than that the family history of ALTEs and the deaths of the three children was highly suspicious. I note that in a report prepared on 15 November 1996 Professor Isaacs expressed fears for the safety of Jack should he remain in the care of the accused. He went on to express concerns for the safety of any future children born to the accused. It was his recommendation that Jack and future children be removed from her care and access to them be severely restricted and always supervised. Such a recommendation is understandable in the light of the evidence led in these proceedings. 79 Professor Byard, although not of the view that each of the admissions had been shown to be an ALTE, considered that grouped together they were a cause for concern. He said: "We certainly have a constellation which is unusual and particularly when you take it in light of the subsequent history, I think they have to be viewed seriously, although individually you can perhaps find an explanation for each one. When you look at the whole constellation, it is and always has been worrying."

80 The Crown submits that I would be satisfied that no rational explanation exists for the ALTEs and the deaths of Natalie and Nathan but that the accused deliberately induced each incident. A difficulty which to my mind stands firmly in the way of my so concluding is that none of the expert witnesses were prepared to go so far. Notably, Dr Bradhurst who conducted the post mortem examination on Benjamin, considered, taking into account the whole of the sibling history including the deaths of Natalie and Nathan, that "the most likely cause of Benjamin's death was induced asphyxia". That was as high as Dr Bradhurst would take it. Professor Byard, for the reasons set out above, considered the history a suspicious one. He, like Dr Bradhurst, would withhold a diagnosis of SIDS in the case of the death of Benjamin and Natalie. This is a different matter to affirmatively concluding that the deaths were the result of induced asphyxia. 81 I did not understand any expert called to express the opinion that the sibling history of ALTEs together with the deaths of Natalie and Nathan in combination compelled a view that Benjamin's death was the result of induced asphyxia. 82 I do not consider that the evidence of the ALTEs or of the deaths of Natalie and Nathan meet the test for admissibility provided by s 101(2) of the Act. Accordingly, I would reject the evidence both pursuant to ss 97 and 98. 83 The Crown Prosecutor opened upon the basis that the evidence of the ALTEs and the deaths of Natalie and Nathan was pressed as coincidence evidence. He sought to preserve his position with respect to its admissibility as evidence of tendency. In written submissions, handed up at the conclusion of the hearing, it was further contended that some portion of the evidence was admissible as evidence of relationship. I say some portion of the evidence for the reason that in written submissions the Crown referred to evidence detailed in annexure "B" as admissible either as tendency or alternatively relationship evidence. The submissions had been prepared overnight and the Crown Prosecutor did not have annexure "B" available to hand up. In the submissions the matter is put this way: "The relevant relationship in this case is that between the accused and her children. (The sibling history is independently admissible as the basis of expert medical opinion - R v Welsh 90 A Crim R 364). Relationship evidence has survived in NSW after the Evidence Act as a separate category of admissible evidence: R v Lock (1997) 91 A Crim R 356; R v Fraser (unreported, NSW CCA, 10/8/98); R v Seratore (unreported, NSW CCA, 26/11/99). The relevance of relationship evidence depends upon the issues in the trial. It is admissible when it may reasonably be treated as explanatory of the charged conduct or if it assists in the choice between two explanations of an occurrence: Wilson v R (1970) 123 CLR at 337 and R v Pavia , NSW Supreme Court (Grove J) 16/2/93". 84 I have difficulty in seeing how evidence might be admissible concerning the ALTEs and the deaths of Nathan and Natalie under the rubric of relationship evidence. Evidence of a violent relationship may be admitted in a murder trial because of its relevance to a fact in issue; eg: whether the death was accidental. In R v Frawley (1993) 69 A Crim R 208 Gleeson CJ (as he then was) cautioned against the ready use of the label "relationship evidence". His Honour emphasised the need to describe with accuracy and precision the basis upon which the evidence was said to be admissible. 85 Once it is accepted that the evidence concerning the medical history of the siblings and the deaths of Natalie and Nathan do not meet the requirements of s 101(2) of the Act to prove the accused had a tendency to act in a particular way, namely, to physically harm her children, I have difficulty in seeing how the whole or some portion of this evidence might be admitted relevantly as bearing on the relationship between the accused and the deceased. 86 The Crown also sought to lead evidence concerning two other medical events relating to Natalie. On 7 May 1993, when admitted to the Woden Valley Hospital, Natalie was observed to have a cigarette burn on her hand. On 28 May 1993 she presented at Calvary Hospital with a hairline fracture of the right ulna. The Crown did not contend these episodes were admissible as coincidence evidence pursuant to s 98. It was submitted that they were admissible pursuant to s 97 as evidencing the accused's tendency to physically injure her children. 87 The cigarette burn was to the child's finger. On the occasion of the admission the accused appears to have told hospital staff that it was an accidental cigarette burn. She was noted to be affected by alcohol on that occasion. There was evidence that deliberate cigarette burns to children's hands tend to be to the palm. Deliberately inflicted burns to the finger are not common (T 38). 88 The accused gave an account that Natalie had fallen from her bed as an explanation for the hairline fracture. The paediatric evidence was that falling from a bed was a possible explanation for such a fracture. Fractures of this kind in infant children are a warning sign to medical staff as to the possibility of child abuse. 89 I do not consider that the evidence of the burn or of the hairline fracture meets the test imposed by s 102(2) of the Act. I would reject it. 90 I reject the admission pursuant to ss 98 and 97 of the Act of the whole of the material tendered by the Crown on this application. **********

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Tendency and Coincidence (Evidence Act 1995(NSW)ss 97, 98, 101)

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