Toohey v R [2020] NSWCCA 166 | Case summary

Court of Criminal Appeal (NSW)|2020-03-18|Before: Leeming JA, Rothman J, Adams J, Klaus P, Mr J

Solicitors: Archbold & Co (Applicant) NSW Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/108477 Decision under appeal Court or tribunal: District Court Date of Decision: 05 July 2019 Before: Bennett SC DCJ File Number(s): 2014/108477

Judgment

LEEMING JA and ROTHMAN J: We have had the advantage of reading the judgment of N Adams J, which comprehensively addresses the background, the evidence and the submissions in this appeal against conviction. We agree with her Honour that there should be a grant of leave, the appeal allowed, the finding of guilt (which has the same effect as a jury's guilty verdict) by the District Court announced on 9 November 2018 quashed, and a new trial ordered. Her Honour's judgment enables us to be concise.

Preliminary matters

The count of sexual intercourse with a child under the age of 10 years in circumstances of aggravation contrary to s 66A(2) of the Crimes Act 1900 (NSW) came before the District Court after being severed from the indictment for murder which was tried in this Court. The applicant elected to be tried by the District Court constituted by a judge sitting alone, a course not opposed by the Crown. The applicant was arraigned and pleaded not guilty on 9 August 2019. The trial thereafter took place over four days spread over some six weeks: on 7 September, 14 September, 20 September and 19 October 2018. Some two and a half weeks later, on 9 November 2018, the trial judge announced that "I am satisfied that the Crown has discharged its burden of proof and I propose to find the offence proved". No reasons were given at that time. The JusticeLink record of that day includes "The accused is found guilty".
Section 133(1) of the Criminal Procedure Act 1986 (NSW) provides that a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person, and that "[a]ny such finding has, for all purposes, the same effect as a verdict of a jury".
The matter was stood over for sentencing, originally to 23 November 2018. It was thereafter stood over to February and then March 2019. On Tuesday 5 March 2019, four months after the judge had found the applicant guilty, when the matter was listed for sentencing, the primary judge began to deliver oral reasons for his decision. His Honour recognised at the outset that he would not be able to complete his reasons on that day. The matter was adjourned until 2pm the following day. However, the balance of the reasons was delivered on Thursday 7 March 2019. The appeal papers do not disclose why the hearing on the Wednesday did not proceed.
The reasons delivered on the first day included directions as to the elements of the offence, including as to the Crown proving beyond reasonable doubt the absence of consent. The Crown pointed out, immediately before the adjournment, that consent was not an issue, and his Honour corrected himself. The reasons on the second day addressed the conflicting medical expert evidence.
One important point should be made at the outset. We would confidently infer that the reason that the trial extended over four separate days in a six week period, and that reasons were given over two days some four months after the decision was announced, was the need to accommodate other proceedings in a very busy court. It is also plain from the transcript of the four days of the trial that his Honour was constantly dealing with applications in other matters, during which the trial of the s 66A offence was adjourned. On the morning of each of the first and second days, the matter was stood in the list. On the second day, his Honour advised: "I've got a judgment to deliver, I'm just going to call through this list and then I've got a judgment to deliver and I think I've got one sentence, some - a call up for breaching a CSO, that will take me some little time." On the third day, the matter was again stood in the list to be returned to "as soon as I call through these mentions". On the fourth day, the matter was stood in the list.
Appellate courts regularly recognise the pace of litigation in the District Court, and make allowances on that account. What emerges from the transcript of this trial well illustrates the difficulties confronting judges of that court.
But his Honour was conducting a judge alone trial. A jury would have heard the entirety of the evidence, the closing submissions of the parties and the summing up by the judge (including the directions with which they were to comply) in a much more compressed period. A jury would thereupon have retired to consider their verdict, without interruption or distraction.
The discontinuous nature of the trial is of concern, but as presently advised we see nothing per se wrong with that course. However, the announcement of the outcome, unaccompanied by any reasons for some four months, gives rise to concerns of a different nature.
Subsections 133(2) and (3) of the Criminal Procedure Act impose obligations upon a judge trying criminal proceedings without a jury: "(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
It is clear that the reasons must include "the principles of law applied by the judge", and that the obligation upon the judge in s 133(3) to take any warnings into account must not only be done, but be seen to be done. In Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, the High Court said of these provisions (then numbered ss 33(2) and (3)) at [30]-[32]: "The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded. Finally, there may be a breach of s 33(3) with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 33(3) obliges the judge to take the particular warning into account. The obligation imposed by s 33(3) 'to take the warning into account' is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law" (footnote omitted).
It is to our minds problematic, to say the least, to see how the requirement to take warnings into account in reaching a decision is satisfied when the warning is given four months after the decision was reached. The section arguably contemplates that the "finding" of guilt which by s 133(1) is taken to have the same effect as a jury's a verdict will be included in a judgment which complies with s 133(2) and (3). Moreover, the purpose of s 133(3) is to ensure that the finding is reached, and is seen to be reached, in accordance with the same warnings which would be given to a jury. That purpose is subverted where, as here, the finding precedes the warnings.
Further, from time to time, judges will make errors in the directions given (whether to juries or to themselves). For that reason, it is not uncommon for counsel to be invited to comment on the form of proposed directions, and to be asked (in the absence of the jury) whether anything should be corrected. It was entirely proper for the Crown to correct the trial judge's direction concerning consent on 5 March 2019. But it also serves to emphasise the artificiality of the process, which in essence amounts to correcting directions to be applied in making a finding of guilt or innocence which in fact, as it happens, had already been made the previous November.
In short, while we are conscious of the demands placed upon judges of the District Court, and the artificiality involved in aspects of judge-alone trials, we are concerned that what occurred in this trial may have departed from the requirements imposed by s 133. However, no such complaint was advanced in this appeal, and we say nothing more of it.
We should also say something about delay. Reasons for the finding of guilt were given in March 2019. It is not clear when the transcript was made available to the parties. However, a notice of appeal was only filed on 6 December 2019. Within the intervening time, a Crown appeal was heard on 5 July and determined on 9 August 2019: R v Toohey [2019] NSWCCA 182. The increased sentence of 6 years and 9 months, with a non-parole period of 4 years and 6 months, was backdated to 9 March 2016.
The consequence was that by the time the notice of appeal was filed, (a) this Court had already heard and determined a Crown appeal against sentence, and (b) only ten months of the (increased) non-parole period remained unserved. With the benefit of hindsight, it is unfortunate that this appeal against conviction was not commenced sooner than it was.

Grounds 1 and 2

Turning to the grounds of appeal, there is with respect force in N Adams J's observation that there is substantial overlap between grounds 1 and 2. The real complaint underlying ground 2, barely if at all advanced in writing, but at the forefront of the applicant's oral submissions, was that despite rejecting each of the four hypotheses consistent with innocence, the primary judge failed to address whether, as the defence experts had contended, there was some other unknown cause of the congestion and submucosal bleeding: "ADAMS J: Can I ask you this because it might be of assistance to commence with ground 1? Is it conceded from your perspective that the only reasonable scenarios inconsistent with guilt were the four that his Honour identified? TREVALLION: No, and this is the problem, the problem was that Professor Duflou, for example, on a number of occasions said, paraphrasing, it's difficult to explain this injury, in a lot of ways it doesn't make sense. It doesn't make sense that you would see bruising, or bleeding into the sub-mucosa, without there being an injury to the surface of the mucosa. Professor [Duflou] said that while he didn't think some of the scenarios that were alternate hypotheses put forward by Professor Hilton were likely, he said that they weren't impossible, and that was the bleeding during the agonal phase, he said that that was not impossible. He also said, and I can take your Honours to the page references if need be, that strange things can happen during the peri-mortem period, or during the agonal phase of death, and that sometimes they just can't be explained. He also went on to say that, in his view, there wasn't enough evidence to be able to come to a conclusive view. In that sense the categories, or the hypotheses, weren't really close[d] because there is, in a sense, another one of which we can't really be sure."
To the extent that this was resolved, it was resolved only by the preference to the evidence of Dr Marks and Professor Lyons, which was the subject of ground 2.
In [221] of her reasons, N Adams J has summarised the reasoning process upon which the primary judge relied. That process of reasoning does not suffice to explain the wholesale acceptance of the evidence of Dr Marks and Professor Lyons, and the rejection of the conclusions Professor Duflou and Professor Hilton drew from the absence of injury or tearing to the mucosa.
The point was reiterated orally: "Professor Duflou's main point was that, in circumstances where there is no injury to the mucosa, it would be very unusual to find bleeding to the sub-mucosa by means of force being put on the mucosa."
The Crown accepted, candidly, that the lack of laceration or tearing to the mucosa was "clearly a central issue as far as the medical evidence is concerned". Confronted by the absence of reasoning in the judgment, the Crown took the Court - at some length - to occasions in the transcript of the hearing when the primary judge was alive to the issue, which led to this exchange: "LEEMING JA: What do we get out of this ... attention by the trial judge to these issues six months before reasons are provided? NEWTON: Your Honour, I suppose I'm just to some degree responding to my friend who said this witness didn't talk about it and the judge didn't consider it. I concede it's not specifically in the reasons ..."
The Crown accepted, properly, that the verdict depended upon the rejection of the opinions of Professor Duflou on this issue. The reasons give no explanation for why that occurred.
In Hopgood v R [2019] NSWCCA 246 at [47], Johnson J said, writing for this Court: "Reasons for verdict following a Judge-alone trial must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached. The trial Judge must expose his or her reasoning process by identifying the principles of law applied and the findings of fact made and the reasoning process by which those matters are linked: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [28]; AK v The Queen (2008) 232 CLR 438; [2008] HCA 8 at [85]. In determining an appeal against conviction from a trial by Judge alone, this Court should read the reasons of the trial Judge fairly and as a whole."
It is not necessary in order to resolve this appeal to address in any detail the principles governing the adequacy of reasons in a judge alone trial. In many cases, there may be a question of degree. However, for present purposes it is sufficient to observe that Professor Duflou's opinions about the absence of injury to the surface of the mucosa was not some minor peripheral issue. Rather it went directly to the ultimate finding of guilt in a circumstantial case; cf DL v The Queen [2018] HCA 26; 92 ALJR 636 at [34]-[51]. And it is no answer to say that the primary judge was "attending to the issues in a careful and dedicated way" during the trial; the important obligation imposed by s 133(2) requires attention to be given to the reasons: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [111]; see also at [14]-[16].

Ground 3

We would not uphold ground 3. This ground was barely developed. The applicant's written submissions in support of this ground occupied 2 pages, the majority of which was devoted to extracts of uncontroversial statements of principle. It was largely undeveloped in oral submissions.
The principal submission advanced was "the fact that the four expert witnesses, all of whom were accepted by the Court as having the requisite expertise, held different views as to the cause of the bruising. It is submitted that this alone was sufficient to constitute reasonable doubt". We do not agree. The position is no different from any other trial where different witnesses give different evidence on an issue. It is regularly open to the tribunal of fact to accept the evidence of one witness, lay or expert, insofar as it is inconsistent with that of another witness, and thereby make findings of primary facts which entitle it to be satisfied of the elements of the offence to the criminal standard.
It was also put that the primary judge (a) erred in placing reliance on the findings of fact made by Fagan J (before whom the trial for murder proceeded) and (b) might have misunderstood part of the defence case. Those submissions do not suffice to establish that the verdict was unreasonable. It was open, upon the whole of the evidence, for the District Court to be satisfied beyond reasonable doubt that the applicant was guilty of the s 66A offence.

Orders

An extension of time, if one is required, was not opposed, and to the extent necessary one should be granted. The appeal should be allowed and the finding of guilt quashed.
The applicant submitted that success on ground 2 coupled with failure on ground 3 should lead to a new trial. The Crown agreed ("I've thought about that one, your Honour, and I've thought about the proviso, but I think the difficulty would be that it would be something that would probably go to the root of the decision ..."). The concession that the proviso was inapplicable was properly made, consistently with what was said in AK v Western Australia at [59] and [110].
It was common ground that on the conclusions we have reached this Court should order a new trial. That is so notwithstanding that the applicant has served the majority of the sentence, in accordance with what was said in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [103]-[104]. Whether that trial occurs is a matter for the prosecuting authorities.
We agree with the orders proposed by N Adams J.
N ADAMS J: At 11.03am on 2 April 2014, the applicant, Brendan Toohey, arrived at the Emergency Room at Blayney Hospital seeking help for an unconscious eleven-month-old child. The child was pronounced dead at 12.40pm. She cannot be named having regard to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). I propose to refer to her as "the deceased". She was the child of the applicant's partner ("Ms A").
The post-mortem report disclosed that the deceased had died of blunt force head trauma atypical of a simple fall. It also found that she had suffered bleeding into the rectal mucosa and submucosa consistent with the introduction of a foreign object into the rectum. I propose to refer to this bleed as "the rectal haemorrhage".
The applicant was charged with murder and sexual intercourse with a child under the age of 10 years, contrary to s 66A(2) of the Crimes Act 1900 (NSW). His trial was listed before Fagan J in the Supreme Court sitting in Bathurst. On 21 June 2017, Fagan J severed the indictment and the trial proceeded on a count of murder alone: Decision restricted [2017] NSWSC 846. On 6 July 2017, the jury returned with a verdict of guilty to manslaughter.
On 8 September 2017, the applicant was sentenced by Fagan J to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months. That non-parole period expired on 18 October 2018 and the head sentence will expire on 8 October 2021: R v Toohey (No 2) [2017] NSWSC 1217.
After the indictment was severed, the s 66A(2) count was transferred to the District Court. The applicant elected to have his trial heard by a judge sitting alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW). This was not opposed by the Crown and the matter came before Bennett SC DCJ, sitting in the District Court at Bathurst, on 30 July 2018.
It was proposed that the hearing would proceed on various days during the Bathurst sittings but, unfortunately, that could not occur. The matter was stood over for trial at the Parramatta District Court on 7 September 2018 before Bennett SC DCJ. By agreement, material was tendered on 9 August 2018 for his Honour to read prior to the trial commencing.
The trial commenced on 7 September and was then stood over for another hearing day on 14 September 2018. After that day, it was stood over for another hearing day on 20 September. The fourth and final day of the trial was 19 October 2018, at which time final submissions were made. On 9 November 2018 Bennett SC DCJ announced that he was satisfied that the offence had been established and proceeded to hear submissions on sentence. His Honour subsequently delivered his reasons for finding the applicant guilty over two days on 5 and 7 March 2019. These Reasons were delivered nearly four months after the verdict.
On 7 March 2019, the applicant was sentenced to a term of imprisonment of 4 years and 6 months, commencing on 9 March 2016 and concluding on 8 September 2020, with a non-parole period of 3 years concluding on 8 March 2019. The Director of Public Prosecutions appealed against the inadequacy of this sentence pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) and the matter came before this court on 5 July 2019. On 9 August 2019, the appeal was allowed and the applicant was re-sentenced to 6 years and 9 months imprisonment with a non-parole period of 4 years 6 months: R v Toohey [2019] NSWCCA 182. This new sentence was imposed to commence on 9 March 2016 and expire on 8 September 2020, with a balance of the term of 2 years 3 months commencing on 9 September 2020 and expiring on 8 December 2022. The applicant is eligible for release on parole on 8 September 2020.
The applicant now appeals against his conviction on the sexual assault charge under s 5(1) of the Criminal Appeal Act. He relies upon the following three grounds of appeal: 1. Ground 1: The trial judge resolved issues by posing four questions which reflected a misunderstanding of the defence case and reversed the onus of proof. 2. Ground 2: The trial judge gave inadequate reasons for his findings, and particularly gave inadequate reasons for rejecting the evidence of Professors Hilton and Duflou in favour of the evidence of Professor Lyons and Dr Marks. 3. Ground 3: The verdict was unreasonable and could not be supported by the evidence.

The evidence at trial

Despite the complexity of the issues for determination, the trial itself only ran for four days with just over two days of viva voce evidence. The reason for the shortness of sitting days is that a significant amount of material was tendered to the trial judge by consent. This included trial transcript and exhibits from the trial before Fagan J, all defence expert reports and Fagan J's finding of fact in his Remarks on Sentence. Although the applicant continued to deny guilt in relation to the manslaughter conviction, it was agreed that Bennett SC DCJ could have regard to the facts found by Fagan J, consistent with the jury's verdict, on the manslaughter count, as it provided context in which the Crown alleged that the sexual assault was committed.
I propose to first summarise the post-mortem report and the applicant's ERISP before turning to summarise the transcript evidence tendered before Bennett SC DCJ. I will summarise the expert opinion evidence pertaining to the rectal haemorrhage in some detail. Professor Tim Lyons and Dr Susan Marks gave evidence for the Crown whereas Professors John Hilton and Johan Duflou gave evidence for the applicant. As will be seen below, these experts were able to agree on some matters but disagreed on others. Significantly, the defence experts did not agree that the rectal haemorrhage was necessarily an injury as opposed to an abnormality of some sort.

The post-mortem report

The post-mortem was conducted by Professor Tim Lyons on 18 May 2017. After summarising the factual circumstances of the death, he provided a "Pathology Summary", which was as follows: "PATHOLOGY SUMMARY: 1. BLUNT FORCE HEAD TRAUMA: SCALP BRUISING AND ABRASIONS CEREBRAL OEDEMA SUBARACHNOID AND SUBDURAL HAEMORRHAGE PERIOPTIC NERVE BLEEDING BLEEDING AROUND 1ST CRANIAL NERVE AT THE CRIBRIFORM PLATE 2. BLEEDING INTO RECTAL MUCOSA AND SUBMUCOSA 3. SMALL AREAS OF BRUISING TO THE TORSO AND UPPER LIMBS 4. BLEEDING INTO THE THIRD LEFT LATERAL INTERCOSTAL SPACE"
Professor Lyons summarised his findings and indicated that the deceased had been the victim of several applications of blunt force trauma. In terms of the rectal injury, he stated: "3. There was fresh mucosal and submucosa haemorrhage to the rectum and no evidence of a vital reaction. A Perl's stain for iron was undertaken and this was negative suggesting there had not been previous episodes of trauma to the rectal mucosa. The injury pattern suggests recent trauma due to introduction of a foreign object into the rectum. The features seen are not due to post mortem artefact. In my opinion this is a non-accidental injury. 4. The hymen was observed to be intact and external evidence of the female genitalia showed no evidence of trauma."
Professor Lyons also noted that tissue was taken for histology and there were oral, anal, labial and low vaginal swabs for sexual assault studies. When discussing his findings after an internal examination, Professor Lyons noted that, upon examination of the anus, the anal sphincter appeared patulous and the anal mucosa could be seen projecting from the anus from the 9 o'clock to 3 o'clock position. When the anus and rectum were removed from the body, the perianal mucocutaneous junction appeared normal. He further noted that "the first two centimetres of rectal mucosa appeared normal. The rectal mucosa from 2-5 cm circumferentially was bright red in colour and appeared intensely congested."
In a section titled "Microscopic Examination Of Tissue", Professor Lyons again noted the intense congestion of the mucosa. He added that "[m]icroscopically, there was recent, prominent circumferential haemorrhage (collections of red blood cells) into the mucosa and submucosa." He stated that this was a very recent injury because there was no inflammatory response.

Summary of ERISP

The applicant was interviewed by police at 2.55pm on 4 April 2014. This was prior to the post-mortem report being received and, thus, the applicant was not asked about the anal lesion. He did not participate in any subsequent ERISP after the post-mortem results were available. Nor did he give evidence at trial. He denies the allegation.
In his ERISP, the applicant indicated that the day before the incident causing the deceased's death he had been visiting the deceased's mother in Bathurst in hospital. According to his account, by 7pm that night he would have been on his way home by car. It was about 8 or 9pm when he arrived at the property that he shared with the deceased's mother and her two other children (aged 8 and 10). He stated that the deceased was restless the night before and she had slept in his bed, although she usually had her own room. He stated that they had fallen asleep between midnight and 1am.
The next morning, at around 9:30-10am, the applicant stated that he received a telephone call from the deceased's mother asking him to collect her from hospital. He then went to the backyard of the property to retrieve clothing from the clothesline.
The applicant told police that he placed the deceased on a trampoline which was about as high as his waist. According to his account, she fell off the trampoline and hit a septic concrete tank while he had his back turned. He said that she cried, he picked her up and she was not breathing properly. At this point, he stated that she had "a few bruises around her face".
When further questioned about this, the applicant indicated that he had actually seen the moment when the deceased fell from the trampoline and had attempted to catch her. He said "[a]nd I think I pushed her away from the concrete a bit". He said that her forehead hit the septic tank on the left side on the top of her head and then "tumbled over the side" of it. He said that she was crawling towards the edge, "went to put her hands up, and she was kneeling on the mat thing… And I said, 'Hang on bubba', and I turned my back to grab a pair of trousers off, and she just went straight off. And I went to turn and she was falling."
He then said that when he picked her up and tapped her bottom she was only crying for 5 minutes and then stopped. At this time, she had a graze on her head, a black eye forming under her left eye and a scratch on her arm. After this he explained that she was having trouble breathing and he took her to the hospital.
At some point before this, the applicant stated that he cuddled the deceased and changed her into new clothes, as at the time of the fall she was only wearing her nappy. This occurred on the rug in the lounge room, with the child on her back. He alleged that all of this occurred within 9 to 15 minutes after the fall from the trampoline.
Later in the ERISP, the applicant told police that he had looked after the deceased on his own before and "loved her like [his] own". He said that he had met the deceased's father in Cowra. He said that his relationship with the deceased's mother was good and that she had been away for the night because of a thyroid operation. He indicated that he was prescribed a Ventolin puffer as well as antidepressants and had taken one tablet the night before.

Material tendered in trial before Bennett SC DCJ

The transcript of the evidence given by Detective Senior Constable Samuel Brennan at the Supreme Court trial on 22 June 2017, 28 June 2017 and 3 July 2017 was tendered. A number of photographs were tendered through the officer. His evidence described the investigation in general and the questioning of the applicant.
The trial transcript of the evidence of Debra Gander was tendered. Ms Gander was a registered nurse who had been working at the Blayney Hospital for ten years before 2 April 2014. She became a registered nurse in February 2014. Ms Gander gave evidence that at 11:02am on 2 April 2014 she was called to the emergency room in the trauma room and saw nursing staff performing a number of procedures to resuscitate the child. She also gave evidence that she saw the applicant repeatedly saying "Why isn't she breathing? What is wrong with her?" She described him as crying and upset.
He also told her that the deceased had hit her head when she fell off the trampoline, she had been "okay" but once she was put in the car she fell asleep and he could not wake her. He told her that the accident had happened around 15-20 minutes beforehand. At this point, she described the applicant as very upset and almost hysterical. In cross-examination she stated that when the deceased was being treated she noted a red mark on her forehead which was about the size of a fifty cent piece and also an older mark that was smaller and on her wrist.
The trial transcript of Ms Suzanne Mendham was tendered. As of April 2014, Ms Mendham was a registered nurse at Blayney Hospital. She gave similar evidence to Ms Gander about the conduct of the applicant and the account that he had given as to the cause of the deceased's injuries. In cross-examination, she confirmed that he had been crying during the attempts to resuscitate the deceased.
The trial transcript of Ms Kathleen Hillier was tendered. She was the health service manager at Blayney Hospital at the time that the deceased was attended to by nurses. She gave a similar account to Ms Gander and Ms Mendham as to the applicant's behaviour. She also gave evidence of seeing the bruise on the deceased's face. She asked the applicant about the clothes that the deceased was wearing when she supposedly fell. According to her account, he replied that she was only wearing a nappy when she fell and he had dressed her after the fall. After the deceased had been pronounced dead, Ms A appeared in the resuscitation room. Ms Hillier described Ms A as appearing distraught and that she and the applicant comforted one another.
A social worker was called (who cannot be named because of a non-publication order) and gave evidence that the applicant and Ms A were "[c]rying and screaming" at the hospital. She gave evidence that the applicant had said "Why has she died? Why can't she breathe? How could she be dead? I don't want her to be dead. I want her to breathe." He also said "I let this happen to [the deceased]. It's my fault."
Ms A's trial transcript was tendered. Her evidence was that the deceased was a healthy child that started crawling at around six to seven months. She had been teething in April 2014. This would usually be treated by Bonjela or Panadol. She indicated that she saw the deceased on the evening of 1 April 2014 at around 7pm and she "was happy". She also indicated that it was her practice to place the deceased on the trampoline when she was taking washing from the clothesline. She said "it was a habit".
Ms A also confirmed that the evening of 1 April 2014 was the first time that the deceased and the applicant had been alone together for a night. She said that the deceased was in the habit of standing herself up and grabbing hold of objects to steady herself. This occurred, for example, in relation to the coffee table, and Ms A had observed this leading to a fall. She also said that falling while trying to keep hold of the coffee table had caused the deceased's mouth to bleed. She also said that the deceased "used to crawl under the table and try to sit up, and hit the top of her head on the table".
Ms A also recounted that she had seen the deceased fall off the couch and an incident where the deceased had hit her head on the fireplace, which occurred shortly before Ms A's entry into hospital on 1 April 2014. She also recalled an incident where, in the week before the deceased passed away, the deceased had "went to push herself up and her hands slipped and she just kind of face-planted the concrete".
In cross-examination, Ms A confirmed that the applicant had told her that he had been outside taking clothes from the clothesline on the morning of 2 April 2014. He told her that he turned his back and turned around and noticed that she was falling off the trampoline, hitting her head on the septic tank. He had also told her that as soon as he had realised that something was wrong he took the deceased in the car to Blayney Hospital. He said that the applicant appeared to be upset and grieving after the incident and she believed this was genuine.
In her evidence, Ms A confirmed that the applicant had met the deceased just before the Christmas holidays in 2013 and this was when the family began living together (the relationship between the applicant and Ms A had begun in November 2013). In response to questioning about the relationship between the deceased and the applicant, she answered: "Q. And so that is or was the - is this the case, is that when [the applicant] met [the deceased] as well? A. He'd known [the deceased] since not long after she was born. Q. Because the fact is that you've known [the applicant] for years, haven't you? A. Yeah. Q. But the relationship just started November A. Yeah. Q. --is that correct? November 2013. In that time, and I'm talking about the time that you were living with [the applicant] and the time just before that when [the deceased] had met [the applicant], did you ever see [the applicant] hit [the deceased]? A. No. Q. Did you ever see him be aggressive towards her? A. No. Q. What was his relationship with [the deceased] like? How would you describe it? A. Very - it was a good relationship. She waited till he got home from work. She used to want to be - follow him everywhere in the house. They were always out in his shed and she was always playing with his tools and she'd just like being around him. Q. When she was following him everywhere around the house, did that upset or annoy [the applicant] that- A. No. Q. -you could see? What about when she went into the shed and played with his tools? Did that upset him, that you could see? A. No. She was the only one that was allowed to touch anything of his really, the tools or anything. Q. Did you see [the applicant], ever showing her affection? A. Yes. Q. How would he do that? A. Cuddled and that. He used to muck around with her."
After this exchange, Ms A stated that the deceased was teething and usually slept well when she had had Panadol. She confirmed that she was still in a relationship with the applicant.
The trial transcript of Mr Timothy Mendham was tendered. At the time of the deceased's death, Mr Mendham was living with his wife and children on the same street as the applicant. He would occasionally see a white four-wheel drive vehicle going to and from the house. It was quite often parked in the driveway, and in the front yard.
On the morning of 2 April 2014, at around 8:50am, when walking his son to school, Mr Mendham stated that he did not see the white four wheel drive car, nor did he see it at around 9:05am. At 11:30am to 11:45am, he began mowing his lawn and did not see the vehicle at that time either.
The trial transcript of Cassandra Rae Mendham was tendered. She lived in the same house as her husband, Mr Mendham, and their two children. She indicated that she knew of the applicant, Ms A, the deceased and the two other children and was aware that the family had a white four-wheel drive which seemed fairly new. Like Mr Mendham, she indicated that it was usually parked in the driveway out the front of the house or on the grass in front of the house. At around 11:30am, she had walked to her son's school at the end of the road and had seen a man putting items inside the car. She later clarified that this could have happened on 1 April 2014 rather than 2 April 2014.
The trial transcript of Lorna Turise was tendered. She resided in the same street as the applicant, Ms A and the children. At between 9am and 9:30am on 2 April, she had been taking her dog for a walk and had seen the white four-wheel driving backing out of the property where the applicant and Ms A resided. In cross-examination she insisted that she was not mistaken about the date at which she saw the car reversing from the property.
The trial transcript of Mr William White was tendered. He was another neighbour who lived in the same street as the applicant and Ms A. At around 10am on 2 April 2014, he observed the applicant driving fast down the street. His police statement had read "I saw [the applicant] drive past in the white four wheel drive. He was seated in the driver's seat. I would state he was driving reasonably quick. I thought to myself, he is hooking into it this morning. By this I mean he was driving faster than usual. I didn't think much of it". In cross-examination, he stated that sometimes the white four-wheel drive was "mainly parked around the back near the trampoline" in the property shared by Ms A and the applicant.
I pause here to note that this evidence of the neighbours contradicted the evidence of the applicant in his ERISP as to what time he left to go to the hospital. Its significance can be seen below at [148] in the reference to Fagan J's factual findings on sentence.
Dr Thomas Gibson was an expert witness who gave evidence at the trial before Fagan J. His trial transcript and expert reports were tendered before Bennett SC DCJ. At that time, he was a biomechanical engineer who had been practising in this area since the 1980s. He was asked for his opinion as to the likelihood that the injuries to the deceased were caused by a fall from a trampoline, as claimed by the applicant. He relied on the autopsy report of Professor Lyons for a description of the deceased's injuries.
Dr Gibson performed experiments on a dummy, called a biofidelic dummy, which is the same as is used by the Roads and Maritime Services in crash testing. He explained that the dummy had sensors and scientific instruments to record data and that it was specifically designed to test the impact of significant impacts on 12 month old children. As such, the joints and mass distribution were consistent with a 12 month old child. He stated, quoting from his report, that: "Testing with a biofidelic dummy representing a 12 month old infant was carried out to reproduce the effect on an infant of a fall from the trampoline in the circumstances as claimed by [the applicant]. He described the fall of [the deceased] from various orientations on the edge of the trampoline, head first onto the rigid concrete surface formed by the top of the septic tank. The testing demonstrated that depending on the fall configuration, the forces generated by an infant in such a fail could be sufficient to result in skull fractures and significant brain injury."
In Dr Gibson's experiments, the dummy was set up to fall from a set of different postures, including crawling, sitting on the edge of the trampoline, kneeling and dropping forward head first. He observed that: "[The deceased] sustained significant brain injury, but did not sustain any fractures to her skull. The head and thorax injuries sustained by [the deceased] are not consistent with a single fall onto her head from the trampoline onto the concrete top of the septic tank. Her head and thorax injuries are more consistent with multiple impacts with a less rigid surface."
He was then questioned about a small metal protrusion extending from the edge of the concrete septic tank. He had not been informed about this protrusion (referred to in the transcript as "reo") when completing his first report but he took it into account in his second report. He observed in this second report that: "The fall onto the steel reo from the trampoline does not, however, account for the injuries sustained to the other regions of the head. Specifically the fall onto the bent steel reo does not explain the subcutaneous bruising to the back of the head and the left temporo-frontal regions, the sub periosteal bruising over the right parietal bone and the injuries to the chest. In the autopsy report, 'On the back of the head there was an area of bruising on which there was a characteristic fine cross-hatch pattern. This may have arisen as a result of blunt force against the surface of a regular pattern such as a woven carpet'."
He noted that: "It is also unlikely that the additional head and torso injuries were the result of [the deceased] rotating after the primary impact with her right forehead."
Overall, his opinion was that: "(a) considering the biomechanical testing and the severity and type of the injuries sustained by [the deceased], it is most unlikely that her injuries all resulted from a single fall from the trampoline onto the top of the septic tank as described by [the applicant]; and (b) [The deceased] sustained significant brain injury but did not sustain any fractures to her skull. The head and thorax injuries sustained by [the deceased] are not consistent with a single fall onto her head from the trampoline onto the concrete top of the septic tank. Her head and thorax injuries are more consistent with multiple impacts with a less rigid surface."
Dr Gibson also conceded that there was some variability in his findings depending on the distance between the trampoline and the septic tank with the "reo" protrusion. He also stated that he was not qualified in medicine and therefore could not comment on the effect of the brain injury.

Fagan J's factual findings

As stated above, on 6 July 2017, the jury returned a verdict of not guilty of murder but guilty of manslaughter. In his remarks on sentence of 8 September 2017, Fagan J made a number of factual findings consistent with the jury's verdict.
As his Honour noted, it was implicit in the verdict that the jury found the external head injuries to be the result of several separate applications of blunt force trauma to the head inflicted by the offender and that this trauma was at least a substantial contributing cause of death. Furthermore, the jury was not satisfied that this trauma was inflicted with the intent to cause death or grievous bodily harm to the deceased or with an appreciation that such trauma carried an appreciable risk of serious injury.
Fagan J gave weight to the evidence of the hospital staff (summarised above at [56]-[60]) of the applicant's "apparently genuine distress" when attending the hospital. He noted that the applicant was under physical and mental stress because of his work as a concreter and had been taking antidepressant medication 3-4 weeks before the incident. His Honour concluded that: "I infer from this evidence that he struck the child in the way that proved fatal whilst under stress and frustration, trying to cope with her when she was needy and demanding and when he was not able to maintain patience and self-control."
Later, when addressing objective seriousness, his Honour stated: "Taking into account the jury's verdict I have concluded the offender lost control of himself under the pressure of sole parenting and inflicted blows in frustration which a reasonable person in his position would have realised would be likely to cause serious harm but not consciously intending such harm and exhibiting considerable distress when it resulted. The evidence does not show that his violence toward the child was prolonged or that it involved gratuitous or deliberate cruelty or that there had been any previous instance. What occurred was isolated to a single tragic incident."
His Honour sentenced the applicant imprisonment for a non-parole period of 4 years and 6 months, with a balance of term of 3 years.

The expert evidence relating to the sexual assault charge

It was in the above context that the expert medical opinion regarding the rectal haemorrhage came to be considered by Bennett SC DCJ. During this evidence, two articles cited in the report of Professor Duflou assumed particular significance. As such, it is necessary to briefly summarised them here.
In the first, namely de la Grandmaison et al, 'Rectal Wall Hemorrhage in Hanging Autopsy Cases' (2012) 14 Legal Medicine 172-176, the authors analysed haemorrhagic lesions of the rectal wall in hanging autopsy cases. They reviewed 102 hanging cases and rectal wall haemorrhage was found in approximately 4% of cases. The authors proposed two possible etiologies for these abnormalities. The first was abdominal congestion in conjunction with acute vegetative circulatory dysregulation during a long agonal phase. The other was haemorrhagic lividity. The authors explained this as: "…Postmortem hypostasis (livor mortis or lividity) is classically defined as the intravascular pooling of blood in gravitationally dependent parts of the body after death. Lividity is usually found in the skin, but may also be found in the organs (especially the lungs) or around the organs (especially the adrenal glands). When the body is lying on its back for a sufficient time, haemorrhage (corresponding to post-mortem hypostasis) behind the oesophagus at the level of the larynx and behind the rectum is sometimes found." (footnotes omitted)
The second article relied upon by Professor Duflou was Schulz et al 'Bowel Wall Hemorrhage After Death by Hanging' (2011) 125 International Journal of Legal Medicine 403-410. In this study, the autopsies of 58 men and 16 women (with a median age of 46 years) who had hung themselves were analysed. Intramural haemorrhages were observed in approximately 12% of the cases examined, despite these individuals not having any pre-existing bowel conditions. The authors were of the opinion that where there is a longer agonal phase during hanging, abdominal congestion could cause these haemorrhages. The authors noted that to determine whether a person has hanged themselves or was placed in a hanging position (after a homicide, for example), bowel wall haemorrhages may be an indicator of death by hanging.

Professor Timothy Lyons

As stated above, Professor Timothy Lyons conducted the post-mortem. He gave evidence before Bennett SC DCJ. He is now deceased. At the time of providing his expert report, he was the Clinical Director of the Department of Forensic Medicine, Newcastle and had worked in forensic medicine for over 30 years. He held a Bachelor of Medicine, Bachelor of Surgery, Fellowship of Surgery from the Royal College of Surgeons, and Fellowships in Anatomical and Forensic Pathology from the British and Australian Colleges of Pathology. He also had a Doctorate in Medicine from the University of Tasmania and a Diploma in Medical Jurisprudence from the University of Otago. He had worked as a paediatric surgeon, including in the emergency department of Sheffield Children's Hospital and had worked with a paediatric pathologist in Sheffield undertaking paediatric autopsies. He provided three expert certificates dated 16 May 2017, 15 June 2017 and 6 October 2017.
In his first certificate of 16 May 2017, Professor Lyons described the rectal haemorrhage as a very recent injury because of the lack of a "vital reaction" such as an acute inflammatory response. He was also of the opinion that the injury had occurred before death, as it could not be attributed to artefacts as part of the post-mortem process.
In his certificate of 15 June 2017, Professor Lyons responded to some of the opinions of Dr Duflou as set out in his expert opinion dated 31 May 2017. Relevantly, he repeated his earlier opinion in relation to the anal injury and noted that he was not of the opinion that that the child was constipated. He also stated that he "[disagreed] with Prof Duflou's concluding statement and remained of the opinion that there is significant intramucosal haemorrhage, this occurred antemortem, and is due to the insertion of a blunt object into the anus."
In his final certificate dated 6 October 2017, Professor Lyons indicated that the injury seen in the mucosa and submucosa of the rectum is similar to a bruise seen on the skin in that there could be bleeding into the epidermis and subcutaneous tissues without bleeding on the surface. He stated that this sort of injury is usually associated with blunt force trauma. The severity would have been determined by force applied and the mechanism inflicting the injury.
Professor Lyons further explained that in his experience of orthopaedics and trauma he had not seen a patient with a perianal or rectal lesion as the result of falling on an object which then accidentally entered the rectum. He stated that he had seen external injuries to the perianal region as a result of an individual falling on a bicycle frame but that this did not result in internal injuries.
In his examination-in-chief Professor Lyons explained some of the medical terms contained within his report. He described how the rectum is the tube which forms the final part of the gut or gastrointestinal tract and finishes at the anal margin. He described the rectum as mucosa forming the inner lining of this tube and as directly analogous to the skin. The sub-mucosa is the tissue underneath the mucosa.
Professor Lyons described the anal injury he had observed as follows. It was found between 2 centimetres and 5 centimetres from the anal margin and covered the entire circumference of the bowel wall. He had never observed such an injury in his capacity as a clinician working in paediatrics in a trauma unit and as a paediatric pathologist. He discounted the possibility that it had occurred as a result of blood pooling in the body after death, with blood vessels rupturing as the body began to decompose. In his opinion, the lesion was not a post-mortem artefact.
In terms of what type of object caused this specific injury, Professor Lyons stated that it would be "pure conjecture", but he thought that whatever was introduced must have been smooth because there was no injury to the mucosa, only the sub-mucosa. There was no trauma to the anal sphincter or anal margin which led him to conclude that what was introduced was relatively small in size. He ruled out that the injury was caused by an adult male penis.
When discussing the findings in his report in greater depth, Professor Lyons noted that in this case, the anal sphincter was projecting from the anus "from the 9 o'clock to the 3 o'clock positions". The anus and rectum were removed from the body and inspected. Professor Lyons noted that the first 2 centimetres of rectal mucosa appeared normal. After this, there was a "region of intensely congested mucosa", with the congestion caused from bright red blood. In response to a question from the trial judge about why such an injury would have appeared 2 centimetres from the anal margin, he responded: "I understand what his Honour is saying I'd say it's telling me - it's suggesting a number of things - is that - in that I'm arguing or I find that an object was introduced into the rectum, it must have extended in at least 7 centimetres And the second thing is, hypothetical if it was an object such as a pencil with a round - the non-pointy end of a pencil, my belief is it could pass through the anal margin fairly easily if it went in 7 centimetres and the child - presumably that would cause discomfort. I mean, maybe if it was moved around or wiggled around or the infant moved to try and remove it because it was in discomfort, then it could cause an area of bruising like that in that area."
Professor Lyons then clarified that he should have said 5 centimetres, because the injury started 2 centimetres from the anal margin and then extended for 3 centimetres. He conceded that it was "possible" that the injury could have been caused by a male finger. He said that there must have been some sort of blunt force trauma for the bleeding to occur, and categorised such blunt force as (in lay terms), "moderate to severe, but not severe, because if it was severe I'd expect to see that trauma, actual breakage of the mucosa or a laceration or tearing."
Professor Lyons was then taken to Professor Hilton's report dated 11 August 2015 and his further statement dated 21 March 2016. Specifically, he was asked to respond to Professor Hilton's assertion that there was doubt about whether this was an injury because there was no trauma at the level of the anal sphincter. Professor Lyons disagreed and was of the opinion that it would be possible for a smallish smooth-ended object to pass through the anal sphincter and yet cause trauma further within the rectum. Professor Lyons also disagreed with Professor Hilton's assertion that the lack of personal lubricants made it less likely that there was penetration. This was on the basis that there are natural lubricants from the body in that region and it would be possible for an object to be passed through the anal sphincter without injury.
Professor Lyons was then taken to Professor Duflou's reports and asked to address the areas of disagreement between them. Professor Lyons disagreed with Professor Duflou's use of the word "abnormality" rather than an "injury". In his opinion, Professor Duflou was implying that there was something in the deceased's rectum that simply was not within the bounds of normal anatomy. In Professor Lyon's opinion, it was an injury. Furthermore, he was of the opinion that it was non-accidental. He said that there was a rich amount of blood in the tissues, it was "circum-fringed", well-defined and this was a "very characteristic injury pattern".
In response to Professor Duflou's conclusion that the injury was a post-mortem artefact, Professor Lyon's addressed the literature that Professor Duflou had cited in favour of this opinion. He noted that the two articles cited by Professor Duflou (referred to here as the "Schultz" and "De La Grandmaison" articles) were the only two articles that he was able to find which addressed bowel and rectal wall haemorrhage and both based their findings on the basis of autopsies conducted on adults that had hung themselves. Professor Lyons indicated that, in the process of hanging, there is an agonal period, and 2 to 4% of individuals in one paper and 12% in the other paper showed haemorrhage in the bowel wall in general.
Professor Lyons expressed doubt over whether these findings could be applied to the deceased's case because they related to adults and in the hanging cases the pattern of hemorrhage was different, in that in those cases it was patchy but in the deceased's case it was circumferential, or, as he put it, "a discrete, well-circumscribed pattern of bleeding". He also distinguished the cases discussed in the two articles by pointing out that their conclusion was that in the agonal phase of 15 to 20 minutes in the process of hanging there was still electrical activity in the body that caused dysfunction of the blood supply to the gut.
He then clarified that the papers were referring to two possible mechanisms of injury; abnormalities arising in the blood supply to the gastrointestinal tract that can cause congestion (which had just been discussed) and then pooling of the blood to the most distal regions of the body. Professor Lyons indicated that he thought that the second mechanism may have had more weight and that Professor Duflou should have considered it in greater depth. He also stated that the pathophysiology of death is different in hanging cases as opposed to cases where someone has been resuscitated. In hanging cases, there is generally a cardiac arrest because of compression on the nerves that supply the heart. On the other hand, in the deceased's case, there was a closed head injury, cerebral oedema and swelling, and the respiratory and cardiac centres gradually ceased to function.
In cross-examination, Professor Lyons was taken again to the two papers relied upon by Professor Duflou. He acknowledged that they were from respectable forensic medical journals and he presumed that they went through a process of peer review. He confirmed that the autopsy did not show that there was any sexual activity involving the deceased's vulva, the labia majora, the labia minora or vagina.
Professor Lyons was then asked to clarify what he meant by a "moderate to severe amount of force". He answered: "Well if I remember correctly that when I was explaining the question about the amount of force, I said that forensic pathologists generally use - they generally say mild, moderate to severe force. But they don't -I didn't say that, but we don't define that in Newton's normally. But I mean most forensic pathologists would say a mild amount of force would be the equivalent to a gentle tap If I gently tapped on the bench. Whereas a moderate amount would be a much sort of injury that if someone was punched to the face to cause a black eye. Whereas a severe amount of force might be someone who was punched to the jaw such that it caused bruising to the jaw and broke the jaw. And at the same time, I did actually say a moderate - moderate to severe mount of force and alluded to the fact that if it was severe force I would have expected to see trauma such as a laceration to the mucosa."
When addressing the issue of the lack of injury to the anal rectal muscle, Professor Lyons explained that it is possible for such a situation to occur, citing the example of a sigmoidoscopy using a flexible sigmoidoscope that passes through the anal margin. He stated that this procedure involves an object being passed all the way through the bowel, but it does not cause injury to the anal margin.
Finally, Professor Lyons agreed that if someone was to insert an object into a child's anus that the child would likely be moving to try and avoid the pain. He also agreed that he did not find any evidence of bruising that would be similar to a hand holding the child either by the legs or abdomen to keep them still. On the other hand, he stated that it was possible to hold a small infant up with a view of the genital area without bruising them.

Dr Susan Patricia Marks

Dr Susan Marks also provided an expert opinion for the Crown. She is a qualified medical practitioner with a Postgraduate Diploma from the University of New South Wales. She has been employed as a Career Medical Officer at children's hospitals. She has also been employed as a Paediatric Registrar and Fellow and Staff Specialist in Child Protection Units at hospitals in Sydney.
After setting out the history of the deceased's injuries and the explanation provided by the applicant in his ERISP, Dr Marks indicated that the deceased had multiple impact injuries including those to her right forehead, her right eye, the right side of her head, the back of her head and her chin. She was of the opinion that the severity of the rectal injury could not be explained by the passage of a stool. She described the injury as a "deep penetrating injury, penetrating from 2 cm deep to 5 cm deep". At paragraph [43] of her report she indicated that: "This injury would have been caused by forceful penetrating blunt trauma to [the deceased's] rectum by an object. In the absence of any history to explain this finding, it is highly suspicious for a severe acute sexual assault."
In her examination-in-chief, Dr Marks was taken to her report of 11 June 2015 and asked to read portions of it. She confirmed that she had read the expert opinions of Professor Lyons, Professor Duflou and Professor Hilton. She confirmed that she had read the brief of material and a summary of the Crown case.
Dr Marks was then asked to comment on Professor Duflou's opinion of the anal injury as contained in his reports. Like Professor Lyons, she stated that the literature cited by Professor Duflou should be treated with caution. She provided several reasons for this. First, she noted that the authors had not considered similar injuries in children. Furthermore, she noted that the la Grandmaison article did address sexual assault but, in her view, only sexual assault which causes injuries to the anal opening. She stated that this is usually observed in someone who is alive. However, she stated: "So it's correct to say that those are the things that we see, but it's misleading to suggest that those findings not being there means that it can't be sexual assault. It's quite possible to penetrate the anus of a child. Stool passes through the anus on a regular basis. It's also possible to put objects such as, for example, a finger through the anus without causing any injury to it, but if you have a forceful injury through the anus, as I said, it can go through the anus without injuring it, but then at the point where it kind of ends, it would be at that point where you might expect to see blunt force trauma."
She clarified that she had not seen such injuries in a child in the anal area but had observed genital injuries in children where the external genitalia injury looked normal but there were deep vaginal lacerations. As she explained, "I've seen that clinically, where you can passage through the outer structure, which is designed to open and distend and allow things to pass through it, and then injuries further in…where the object that has been passing through is kind of coming against bony structures and then impacting on that area and causing injury internally."
Dr Marks also commented that there was no background provided in relation to the individuals discussed in the article. She noted that one was an auto-erotic asphyxia death. In relation to the Schultz paper, she noted that the paper dealt with individuals who died as a result of fatal ano-rectal injuries, to the extent of rupturing the bowels, which was not the case here.
In cross-examination, Dr Marks confirmed that her practice was primarily with living patients at Westmead. It was not part of her practice to perform post-mortems. She later accepted that it was a disadvantage that she did not see the rectum or anus removed from the body, as opposed to a doctor performing a post-mortem. Like Professor Lyons, she did not see any injuries consistent with holding a child down to stop them from moving. However, she noted that "we hold children at the hospital all the time in order to do things that they don't like. It doesn't actually cause injuries to the child."
Dr Marks was taken to Professor Hilton's report, especially his concern about the absence of any trauma at the level of the anal sphincter. She disagreed that the anal sphincter was "the point of most resistance", commenting that: "So that's what I was trying to talk about before. If, for example, you're doing a rectal examination on a patient, including a child, which is where a doctor would insert a finger through the anus into the rectum, if you just push your finger in without pausing, that can be quite painful and the child will pull away, but if you actually hold your finger just for a brief period of time, and I'm talking a number of seconds, not a long time, the sphincter will actually relax and you can then pass a finger through the anal passage without causing an injury. It's not a procedure that's done commonly on children for obvious reasons, but it's done when it needs to be done, and it doesn't cause injury to the anal sphincter or to the anus itself. So I don't actually agree with the bit that you just read about the anal sphincter being - I forget the exact wording, but I can you said the point of most resistance."
In relation to the lack of lubricant, Dr Marks noted that the lack of lubricant does not mean that an assault was impossible. In her opinion, the lack of lubricant meant that potential for injury to the anus was more likely.
Dr Marks was again taken to the findings of Professor Duflou. She agreed with his observation that a patulous anus at post-mortem generally should not be given great significance. She did not think that it was of great significance. She also agreed that this abnormality was unlikely to have been caused by chronic constipation. In relation to his conclusion that the injury could have been a post-mortem artefact of dying, she commented that she had not read of rectal mucosal haemorrhage occurring in children as an artefact of dying.

Professor Johan Duflou

Professor Johan Duflou is a consultant forensic pathologist in private practice, part-time specialist forensic pathologist at the Forensic Medicine Centre in Canberra, Clinical Professor of Pathology at the University of Sydney and Conjoint Associate Professor at the National Drug and Alcohol Research Centre within University of New South Wales. He stated in his report of 31 May 2017 that he had personally examined a large number of babies who had died from injuries and other conditions.
Professor Duflou noted that the anal/rectal pathology showed a lack of inflammatory cell reaction and stated that, in his opinion, it was likely this was sustained in the hours (possibly up to 8 to 12 hours) prior to death. He was not able to provide an opinion as to whether, if the rectal haemorrhage was an injury, it occurred at the time of the other injuries or not. Nor could he conclude whether it was the result of accidental/natural means or the result of abuse.
When providing his opinion as to the cause of the injury, Professor Duflou stated that: "Research literature cautions against attributing any significance to a patulous anus at autopsy. Such visually alarming abnormality is in fact, a normal post mortem change and is not an indication per se of anal penetration. Assuming there is an injury present, I agree with the views expressed by Professor Hilton that the absence of mucosal surface trauma in any form whatsoever raises the distinct possibility this is not the result of anal penetration. In my opinion, severe chronic constipation is unlikely to cause such abnormality, and I note that the bleeding appears to be entirely recent without an inflammatory reaction. There also appears to be no natural disease present in this case which would reasonably be expected to cause the haemorrhage as described." (footnotes omitted)
Ultimately, he concluded that the injury was a "perimortem artefact" due to the lack of any other anal/rectal injury and the absence of DNA and chemical evidence.
In examination-in-chief, he noted that that he had been performing autopsies (including on child subjects) since the early 1980s. He was then taken to the following comment in his report: "My general comments in relation to the aging of injuries applies. The histologic appearances of the anal/rectal pathology shows a lack of inflammatory cell reaction indicating that it is likely this was sustained in the hours, possibly up to eight to ten hours, prior to death but I cannot state whether those abnormalities occurred at the time of the other injuries or not. It is also entirely possible this abnormality occurred in the immediate perimortem period?"
Professor Duflou explained that, generally, an inflammatory cell reaction will develop within 24 hours after the tissue like skin is bruised. He said that he was unsure how long it would take in the rectum, but it was likely that it was a shorter period such as 8 to 12 hours. He explained that the peri-mortem period is the time around death.
Professor Duflou explained the concept of hypoxia, which is a lack of oxygen to tissues. In this period, there can be rupture of blood vessels in multiple parts of the body. If there is a restart of the heart or a recommencement of oxygenation to that area, this can result in bleeding from that area because of the recently damaged very small blood vessels. He stated that this could also be an explanation for the injury in question in this case, as CPR was administered to the deceased, and, to his knowledge, this would not have been administered unless she was effectively in cardiac or respiratory arrest (or both). In those circumstances hypoxia could have developed, but if the heart was restarted and blood pressure rose, there could have been release of blood in the areas where hypoxic damage had occurred.
When asked about his use of the term "abnormality" rather than "injury", Professor Duflou stated that he had used "abnormality" because he was not sure whether the damage to the deceased's body was the result of the application of physical force. However, he was not discounting the possibility that it was an injury.
Professor Duflou also explained that the prolonged agonal phase could have been another cause of the "abnormality" of the rectum observed in this case. He noted that the deceased arrived at hospital at 11am and her breathing was short and shallow well before that. CPR was then attempted and eventually death was declared at 12:40pm. Overall, this meant that there was an agonal period of at least 1 hour and 40 minutes. In his opinion, this could have resulted in the "release of all manner of substances from the damaged brain which can have the effect of causing the appearance of bleeding in very unusual locations". He noted that such agonal phenomena often occur in the soft tissues of the gastrointestinal system, such as in the pancreas and behind the bowel (this has been observed in adult cases). He did not know the exact reason for this but supposed that these parts of the body might be sensitive to the effects of substances like adrenalin. He agreed that constipation was unlikely to have been a cause of the injury.
Professor Duflou also expressed doubt about the possibility of anal penetration because of the absence of mucosal surface trauma. He stated effectively if someone were to insert an object, whatever that might be, to the extent that it would cause circumferential bruising over the area, it really surprised him that a clinician with a microscope would not be able to find mucosal damage at all.
The Professor was then asked about the possibility that an item such as a pencil with a smooth surface was used, with the natural lubrication within the anus and the rectum explaining the lack of any disruption to the surface of the mucosa. He replied that: "…Look my concern about that is that it's circumferential, it's extensive. For it to be circumferential I think if it is the result of physical force, in other words if it's an injury, you would then have to expect there to be damage or force applied around the entire or almost the entire rectum on all sides. Or there would have to be some stretching motion or something quite unusual for it to occur in a circumferential fashion that's actually quite well demarcated. And to get that in the absence of any surface damage to the rectum and anus whatsoever to me really does sound quite unlikely. I must emphasise that I'm not absolutely excluding it but I think as a forensic pathologist who prefers to be cautious in such matters that to me it doesn't quite make sense. There are all sorts of peri mortem changes and artefacts which certainly do occur and in a situation like that you certainly have to think that this could be a peri mortem change and artefact."
He was then taken to the two papers that he relied on his report. He noted that they discussed different situations, such as the results when adults have died via hanging, but noted that they supported the notion that abnormalities in the circulatory system may occur when a person has a prolonged period in which they are dying.
In cross-examination, Professor Duflou was taken to a transcript of the evidence of Professor Lyons. He disagreed with Professor Lyons because he maintained that this abnormality could have occurred in the peri-mortem period or even after death.
When taken to Professor Lyon's evidence about the possibility that a pencil was inserted into the anus and then "wriggled about", he stated that this could cause some form of bleeding. However, he stated that it was unlikely that this could occur without damage to the mucosa. He conceded that doctors may do rectal examinations where a finger is placed in the anus to feel parts of the rectum and that this can be done without causing bruising. He agreed with Professor Lyons that a moderate amount of force would have to have been used.
Professor Duflou was then asked about the assertion from other experts that the articles to support his alternative hypothesis were not helpful because of the mechanisms in which these deaths occurred (hanging rather than blunt force trauma). He replied: "They point out that they show different characteristics to what is seen with pure mucosal haemorrhage and they point out as well that a forensic pathologist - that a correct interpretation of what they call peri anal ecchymoses is critical in preventing false child abuse allegations and forensic pathologists should also be aware of such pitfalls in hanging deaths. So in this case they have used as an example hanging deaths. But they certainly also point out in detail that other abnormalities which you expect to see in anal penetration cases include multiple contused lacerations involving the anal orifice and extending into the anal canal and continuous rectum and sigmoid colon. Colorectal perforations can be seen in such cases. Usually complicated by acute peritonitis. We didn't see any of that. Absolutely nothing. All we saw was mucosal and submucosal haemorrhage, circumferential."
Later, he confirmed that his reference to the de la Grandmaison article was only in relation to the second mechanism of injury, namely the effects of a prolonged agonal phase, rather than the pooling of blood. He confirmed that this article referred to "bowel wall haemorrhage and abdominal congestion". He explained that a reference to a "moderate" amount of force being inflicted on a child would "probably be in all likelihood less than a moderate amount of force inflicted on a robust hundred kilogram rugby player", making this a "semi-quantitative approach and not necessarily at all accurate".
Professor Duflou was then taken to the evidence of Dr Marks, particularly her view that this was likely to be a sexual assault because of her lack of knowledge of reports where children have suffered rectal mucosal haemorrhage as an artefact of dying: "I think as I have said I do not exclude the possibility that this is an injury caused by an insertion of an object, whatever that object might be. But at the same time, I think coming back to Dr Marks' comment here, she says, 'I don't think any of the other witnesses who are pathologists have made any mention of finding rectal mucosal damage in children which might then be thought to be an artefact of dying.' But I suppose the question which I don't think has been asked is how often do you see mucosal bruising to that part of the rectum without any other injury whatsoever to the anus or the mucosa or the genitalia? And that remains my concern."

Professor John Hilton

Professor John Hilton is an Adjunct Professor and Consultant in Forensic Medicine. He provided two opinions dated 11 August 2015 and 21 March 2016. He had seen two colour paper print photographs of the deceased's body which he noted were "reproduced reasonably well although not to a satisfactorily diagnostic quality". In relation to the anal injury, he noted the findings of Professor Lyons of an "area of intense congestion as macroscopically commencing 20 mm proximal to the ano-rectal junction and extending for a distance of 30 mm and that microscopically this was characterized by fresh bleeding into the lining of the bowel".
Professor Hilton noted that such congestion and mucosal bleeding is indicative of trauma, but noted that it was doubtful that it was caused by an object passing through the anus and into the rectum because of the absence of trauma at the level of the anal sphincter.
In his further opinion of 21 March 2016, Professor Hilton observed that: "Testing for any 'personal lubricants' was negative. While this observation cannot exclude the introduction of a foreign object through [the deceased's] anus, the absence of any anal injury makes such a penetration as the cause of the internal rectal bruising, while not impossible, perhaps less likely."
In his examination-in-chief, Professor Hilton noted that the anal orifice on post-mortem examination was patulous but that this was not uncommon in autopsy of young paediatric subjects.
Professor Hilton then expanded on his opinion of the deceased's injury. He noted that, in his opinion, there were three types of activities that could inflict this sort of injury. There was the possibility of disease, but there was no evidence of this on the facts. There was also the possibility of the passage of some object. He noted that constipation was also a possibility, stating that: "I note that Professor Lyons said there was no evidence of constipation - no, he said the child was not constipated but in fact, (a) constipation is a function not a structural abnormality so there's a caveat from that aspect. The other caveat is that there is no way of knowing whether the child might not have had a very constipated stool which it passed at a time fairly proximal to its decease thereby producing some localised bleeding into the mucosa. Again, it's just interesting that there was no damage to the actual lining itself, it was beneath the lining so it's a pressure effect rather than a sharp effect."
Professor Hilton was then asked to comment on Professor Lyon's opinion that trauma could have been caused by a rounded pencil or perhaps a finger. He said that he was "not all that happy" about this theory, as, in his view, pencils vary in their capacity to cause trauma, depending on whether they are sharp, rounded, squared off or had an eraser attached. He conceded that a smooth surfaced and rounded pencil could penetrate the anus without leaving an abrasion but was not able to define the exact probability of this.
He also conceded that there was a low possibility of a finger being inserted into the anus. He explained this on the basis that the anal sphincter would have to relax, which would be unlikely in the case of a "conscious and unprepared child". However, he did accept that once a finger was inside the rectum, it could be moved and if a degree of force was applied then it could harm the submucosa without causing damage or harm to the mucosa. He also agreed that this trauma could be termed "trauma circumferential".
Professor Hilton was then taken to the Schultz and de la Grandmaison articles relied on by Professor Duflou. He said that they were of assistance but that a "degree of caution ought to be applied". He pointed out that in the Schultz article, for example, the haemorrhaging was discovered in the large bowel, particularly the transverse colon. As he noted, the ascending and transverse colon are at a very considerable distance from the rectum. He therefore, noted that it was difficult to extrapolate the data from this study's findings to this case.
In relation to the de la Grandmaison article, Professor Hilton stated that it equally should be treated carefully because it dealt with hanging patients. Furthermore, it discussed a "sock and glove" analogy in terms of the pooling of blood in the hands and feet, prolonged agonal phases and abdominal congestion. He confirmed that there was no abdominal congestion found in the deceased's body.

The parties' closing submissions

The Crown's written submissions, after the expert evidence, began with a statement of four "central questions". His Honour later quoted these in his judgment in the passage extracted below at [166]. The Crown also recited the elements of the offence, the factual matters not in dispute and the legal principles governing circumstantial cases. The Crown then set out three intermediate facts that they needed to prove and set out the evidence which established these intermediate facts.
Under a heading titled "How evidence of accused's assault of the deceased should be used in this trial", the Crown submitted that the evidence was admissible on two bases. According to the Crown, this evidence functioned as rebuttal character evidence as well as forming part of the "transaction" (citing O'Leary v The King (1946) 73 CLR 566; [1946] HCA 44). In the defence submissions, it was disputed whether this evidence could form rebuttal evidence. As the defence noted, character was not raised in this trial and they had not sought a good character direction.
The defence accepted, however, that evidence relating to the manslaughter charge was background evidence and thus admissible, so the Court could make sense of the evidence for the sexual assault charge. However, the defence contended that this evidence could not be used to draw an inference about a "disposition" or state of mind of the accused, as this was the type of impermissible tendency reasoning prohibited by the court in O'Leary v The King.

Judgment of Bennett SC DCJ

After setting out the procedural history of the matter, his Honour noted that he had had regard to the standard directions regarding the onus and standard of proof, witnesses and circumstantial evidence. His Honour noted that the Crown case was a "links in the chain" and then directed himself as follows: "It will not be open to come to a conclusion favourable to the Crown unless I find beyond reasonable doubt that the effusion of blood in the mucosal and the submucosal tissue of the child's rectum occurred when she was alive, within the hours before her death, and that the accused was the sole person with care of the child at the time when the abnormality later detected on post‑mortem arose. If satisfied beyond reasonable doubt as to the existence of the essential facts, then I can take them together with all the other facts established and ask whether I can draw the inference or conclusion in favour of the Crown from those facts considered as a whole. If such a conclusion of which the Crown contends is not available, then the Crown's circumstantial case fails. If there is no other explanation consistent with all the established facts considered together, then it will be open to convict the accused. If, however, I am not satisfied beyond reasonable doubt as to the essential facts to which I have referred, I must return a verdict of not guilty."
His Honour then directed himself regarding the fact that the applicant did not give evidence and set out the applicant's account in his ERISP and as was adduced at the trial before Fagan J in considerable detail. I have already summarised that ERISP above.
His Honour then extracted the following observations by Fagan J when sentencing the applicant (at [18]-[22] of R v Toohey (No 2)): "It is not necessary for me to make a finding whether there was a fall from the trampoline except that, if this occurred, it might explain and perhaps excuse the offender's continued minimisation of his responsibility for the child's death. That is, his persistence (for example in his letter to the Court and in his interview with the psychologist) in the claim that he blames himself only on the account of failure to exercise due care for the child on the trampoline. I am not satisfied on the balance of probabilities that there was any fall as he describes. I find his account in his police interview confused and unconvincing. In some answers he suggested that the child commenced a fall while he was not looking in her direction, whilst he was in a position relative to the clothes line which would have placed him about two metres away. In other answers he claimed that he saw the child fall from a position close enough to reach out and try to stop her. He said that he may even have made sufficient contact with her, before she struck the surface, to push her away towards the edge of the concrete. The offender's account of the aftermath of the fall was equally contradictory and lacking credibility. On one version he realised very shortly after picking the child up to comfort her that she was having difficulty breathing and that she was gasping for air. He said that he rushed to change her nappy, dress her, put her in the car and speed to the hospital. In other answers he claimed that he had set off from Mandurama for Bathurst, to collect Ms A following her discharge from hospital there, but that on the way he thought the child "wasn't breathing properly" and that her eyes were rolling back in her head. Only then had he decided to cut his trip to Bathurst short and to divert to the Blayney Hospital Emergency Department (which is 28 km along the route to Bathurst). The offender told the police he had left Mandurama 8 or 9 minutes after the child's fall from the trampoline. Other evidence in the trial showed that the journey to Blayney would have taken him no more than 14 minutes. Given the time of his arrival there, this would have him departing the residence at Mandurama at about 20 minutes before 11:00 am. However two elderly neighbours gave evidence that they saw him drive away from the residence significantly earlier than this. Both of these witnesses had made statements very shortly after 2 April 2014. One of them put the time at about 9:00 am, by reference to the hour at which a nearby school commenced classes and at which she was accustomed to walk her dog. The other witness put the time at 10:00 am. He was confident that it was well before 11:00 am because by that time he had himself arrived in Blayney for an appointment. These and other contradictory features of the offender's account of a fall from the trampoline cause me to reject it on the balance of probabilities. In any event I am satisfied on the balance of probabilities (and, indeed beyond reasonable doubt) that such a fall, if it occurred, would not have contributed significantly to the intracranial injuries found on autopsy. In that regard I strongly prefer the evidence of the Crown's forensic pathologists to that of Dr Duflou. Dr Duflou's thesis of a hyperextension injury to the neck is not supported by any case study demonstrating the possibility of this result from a short fall of only 70 cm. Nor is the thesis supported by any calculation of the forces resultant from such a fall or of the angle of operation of such forces relative to the normal alignment of the head and cervical spine. His thesis is convincingly rebutted by the evidence of Drs Marks and Lyons."
After extracting the above passages, Judge Bennett observed the following: "I concur with the opinions found in the judgment dealing with the accused's responses to the police in the course of interviews, and I am not persuaded that the description of the event given by the accused to the police in explanation of the symptoms exhibited by the child provides an explanation which I would accept as exculpatory of the misconduct upon which he is presented to this Court. It does not follow, of course, that I would thereupon find that the accused committed the offence. It remains that having put aside the interview upon the important questions I must decide, I must consider the evidence in the Crown case and the evidence led on behalf of the accused from the experts he called to determine whether the Crown has proven that the accused penetrated this child's anus, as is alleged."
His Honour then went on to consider the essential elements of the offence. He noted that the Crown case was that the applicant penetrated the child's anus to the extent that haemorrhaging occurred in the mucosal and submucosal tissue of the child's rectum. The Crown could not identify what object was used or whether the purpose of the penetration was for the purpose of sexual gratification.
The judgment was then adjourned until 2pm on 7 March 2019. His Honour commenced his reasons that day by noting the directions he had already given himself and then considered the evidence in the case before announcing his verdict. It is this part of his Honour's reasons that gives rise to the complaints in grounds 1 and 2, so it is necessary to consider them in detail. His Honour repeated the nature of the Crown case and then stated: "The accused's case, by way of his counsel, and drawing upon those parts of the interview which are consistent with the case presented, is that there was no such penetration of the child's anus while the child was under the authority of the accused, and that in any event the expert evidence that was presented, both for the Crown and for the accused, understood upon a thorough analysis of that material, would leave open at least the possibility of other explanations for what was observed of the child's rectum upon post-mortem examination. All of that said it is not for the accused to prove the proposition that there is another explanation for injury found in the child's rectum. It is for the Crown to prove that this was the product of penetration by the accused, whether by a finger or some other implement. That burden upon the Crown must be discharged according to the principles that I have already summarised."
His Honour then went on to consider the expert evidence, first directing himself as to the consideration of expert evidence including the following: "The degree to which the experts analysed the material upon which their opinions were based, and their skill and experience brought to bear in formulating their opinions, is not in question here, subject to the greater opportunity availability to Professor Timothy John Lyons who provided his report upon the post-mortem examination of the child. If having given careful consideration to the material I do not accept the evidence of any expert, I do not have to act upon it. In the present case there is a conflict between the expert evidence of Professor Lyons and Dr Marks on the one hand, and the experts called on behalf of the accused, but there are common grounds between all of them. Importantly though, there is a conflict of opinion with regard to the significance of the effusion of blood in the mucosal and submucosal tissue of the deceased child's rectum. Whereas Professor Lyons supported by Dr Marks is of the opinion that this is evidence which is conclusive of the penetration of the child's anus, the witnesses called on behalf of the accused opine that there is a possibility that this was caused otherwise than by way of penetration. It is not the case of simply choosing between the evidence upon which the Crown relies, and that which is advanced on behalf of the accused. My approach to the resolution of conflict upon this topic depends upon the onus of proof in relation to this issue, which rests upon the Crown to the criminal standard in accordance with the aforementioned principles. I note also that this evidence relates to only part of the case, though it is an important and perhaps even the predominant part of it. I must reach my verdict having considered all of the evidence." (Emphasis added.)
His Honour returned to the elements of the offence and noted that there was no dispute that the deceased was a child nor any dispute that she was under the authority of the applicant. The issue remaining for the Crown to prove beyond reasonable doubt was whether the applicant had sexual intercourse with her as alleged.
His Honour then noted a difference in position, as between the Crown and the applicant, as to the relevance of the fact that the sexual assault is alleged to have occurred in the context of a serious physical assault that led to the death of the child. His Honour recounted the Crown's position (extracted from the Crown submissions) as follows: "… the inference available was that this act of penetration was accompanied by, at the very least, a recklessness as to the consequence of forceful pressure on the rectal area of the body. Moreover, there is no disagreement between the experts that if the deceased's (as was said) anus was penetrated it would have been a time proximal to her death. Therefore, it is submitted that the evidence of the inflict head injuries allows an inference to be drawn that the accused had a continuing state of mind close to her death, that state of mind being a recklessness as to the deceased's health, comfort and wellbeing. It is submitted that that state of mind can rationally affect (direct or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings because a person exhibiting that state of mind is more likely to engage in the unkind act alleged by the Crown."
His Honour noted that the applicant challenged the Crown's position on this issue because it suggested tendency reasoning instead of the reasoning of the High Court in O'Leary v The King, especially as contained within the judgments of Latham CJ and Dixon J.
His Honour resolved this dispute by finding that the Crown was not entitled to rely upon the surrounding circumstances for a tendency purpose, but they were relevant to provide context to the charge. No complaint is made in this court regarding that finding.
His Honour then went on to consider the expert evidence. He commenced his conclusions regarding the expert evidence as follows: "I have read the submissions made on behalf of the accused with regard to the expert witnesses and the submissions made in terms that there is at least the possibility that the lesion discovered upon post-mortem examination was occasioned by means other than penetration by a finger or other blunt instrument, leaving the effusion of blood into the mucosal and submucosal tissue. I accept what was said by the expert witnesses called on behalf of the Crown. It persuades me beyond reasonable doubt that the only rational conclusion to draw from the circumstances that are before me, including the evidence of the complex of injuries suffered by the child, including the injury to her anus, can lead to no other conclusion but that the penetration was occasioned at the hand of the accused who was present, and alone responsible for the care of the child". (Emphasis added.)
His Honour went on to state that the Crown had correctly analysed the approach to be taken which was, to decide first whether the intermediate facts had been established. Those three intermediate facts were: first, that the effusion of blood and haemorrhaging in the mucosal and submucosal tissues occurred when the child was alive; secondly, that it occurred "in the hours" before the deceased died; and thirdly that the applicant was the only person caring for and in contact with the deceased during the period of time when the rectal abnormality manifested. His Honour held that the third of these three intermediate facts was not challenged, leaving for consideration the first two intermediate facts:
After directing himself again regarding the onus and standard of proof and the Shepherd direction (Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56), his Honour went on to consider the competing cases.
First, his Honour noted that defence counsel had acknowledged that there was "little if any" conflict between the experts as to the timing of the bleeding and bruising. His Honour then stated that the first and second intermediate steps: "…are established by the observations made on post-mortem examination and the opinion expressed by those who were called to offer their opinion thereon. Professor Lyons expressed this view in his report tendered to the Court. I accept this to the requisite standard."
After stating this conclusion that his Honour was satisfied that the rectal haemorrhage to the rectum occurred within hours of the child's death, his Honour went on to consider the "ultimate" issue to resolve, namely, whether it is possible that the child suffered the lesion to her rectum as a consequence of "some other mechanism".
His Honour then summarised the evidence of Professor Hilton as follows: "Professor Hilton was of the view that the congestion and mucosal bleeding in the rectum was indicative of trauma, but in the absence of any trauma at the level of the anal sphincter, the point of maximum resistance to any anal penetration, there is some doubt about the inference available from the rectal mucosal appearance and the proposition that it was effected by an object passing through the anus and into the rectum from the exterior of the body. Testing for personal lubricants was negative, and although the observations made could not exclude the introduction of a foreign object through the anus, the absence of any anal injury makes any such penetration as a cause of the internal bruising, whilst not impossible, perhaps less likely. The essence of that opinion is contained in his second report on 21 March 2016."
His Honour then summarised the evidence of Professor Duflou: "Professor Duflou provided extensive evidence, including by way of his report. He expressed the view that severe chronic constipation was unlikely to cause the abnormality observed. I will quote what has been provided to me in the written submissions from p 15 referring to the passage where he wrote: 'I conclude that it is entirely possible, and in my view most likely in this case, that the finding of isolated anal/rectal intramucosal haemorrhage is a perimortem artefact of dying. The lack of any other anal/rectal injury in the absence of DNA and chemical evidence further strengthens my view that this abnormality is a perimortem artefact and is not the result of insertion of a blunt object into the anus'."
His Honour then went on to contrast this evidence with the evidence of Professor Lyons and Dr Marks by stating as follows: "…Professor Lyons expressed the view that there could be no other conclusion but that there was a forceful penetration by a blunt instrument into her rectum, causing the lesion he observed. His view is that the lesion would not be explained by the passage of stool material. It was Dr Marks' opinion that the entry was severe and would not be explained by the passage of stool material."
After noting this evidence of Professors Hilton and Duflou and the evidence of Professor Lyons and Dr Marks, his Honour concluded that: "I have read the evidence given by each of the witnesses that were called and presented to Court on 7 September, 14 September and 20 September 2018. All were examined and cross-examined with appropriate skill. However, for the reasons I have given I have come to the view that I should accept the opinions offered by Dr Marks and Professor Lyons, and I do so beyond a reasonable doubt."
His Honour then concluded his reasons as follows: "The Crown's submissions include a summary of the central questions that are for determination in the trial. First, is it a reasonable rational possibility that the effusion of blood haemorrhaging in the mucosal and submucosal tissues of the deceased's rectum was not an inflicted injury, but rather an abnormality or artefact which occurred in the perimortem or post-mortem period? I answer that question in the negative. The possibility of that was, as I indicated, raised by Professor Duflou, drawing upon articles and literature that was presented to the Court, but as was noted and submitted by the Crown, the significance of that material within the context of this case involving a baby of such tender age was limited. The second question, is it a reasonable rational possibility that the effusion of blood haemorrhaging in the mucosal and submucosal tissues of the deceased's rectum was not inflicted injury, but in actual fact some localised bleeding as a result of the passage of very constipated stool? Upon the evidence that I have, I find that is not a reasonable or rational possibility for the reasons I have explained, drawing upon Dr Marks and Professor Lyons. Third, is it a reasonable or rational possibility that the effusion of blood haemorrhaging in the mucosal or submucosal tissues of the deceased's rectum is not an inflicted injury but rather in actual fact the result of a natural disease process? I find that it is not. Fourth, is it a reasonable or rational possibility that the effusion of blood haemorrhaging in the mucosal or submucosal tissues of the deceased's rectum is not an inflicted injury, but rather caused by Professor Lyons when he conducted the autopsy? I find that it was not. Finally, the fact that is not in issue, that the accused was the only person caring for and in contact with the deceased during the period of time when the rectal abnormality manifested. I have already dealt with the analysis of the accused's answers in the interview and the unsatisfactory nature of his representations, consistent, as I have said, in my view, with the opinion reached by his Honour Fagan J when called upon to determine sentence for the manslaughter charge. I concur with his Honour's views expressed in his judgment upon sentence. I note that his Honour was, of course, delivering judgment which is not binding upon this Court, but having analysed the material I can confirm that I concur in the views that he has expressed. The verdict I do not intend to continue with any further analysis of the material. I will simply at this point announce that for the reasons given I am satisfied beyond reasonable doubt that the accused is guilty of the offence that he on or about 1 April 2014 at Mandurama in the State of New South Wales did have sexual intercourse with IM-H, a child then under the age of ten years, namely 11 months old, in circumstances of aggravation, namely at the time of the sexual IM-H was under the authority of the accused. Accordingly, the verdict is guilty and the accused is convicted of that offence."

Ground 1: The trial judge resolved issues by posing four questions which reflected a misunderstanding of the defence case and reversed the onus of proof

Applicant's submissions

In written submissions, the applicant submitted that his Honour reversed the onus of proof when he posed the four questions to be answered by him, extracted at [166] above. The approach taken by his Honour was said to place the onus on the applicant to come up with an answer to the four questions in circumstances where the two highly qualified defence expert witnesses were unsure of exactly what had caused the lesion. The applicant submitted that the Crown's use of these questions and the trial judge's adoption of these questions is analogous to the approach criticised in Wood v The Queen (2012) 84 NSWLR 581; [2012] NSWCCA 21. The applicant also relied upon The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 and argued that the very fact that the finder of fact is not persuaded by alternate explanations does not satisfy the requirement of proof beyond a reasonable doubt.
It was not conceded that the four questions posed by the trial judge were the only questions. Professor Duflou's evidence was that he found it difficult to explain the injury because it did not make sense to see bruising or bleeding into the sub-mucosa without there being an injury to the surface of the mucosa. Similarly, Professor Hilton's evidence was that some of the alternate scenarios advanced by Dr Duflou were "possible" and that bleeding during the agonal phase was not impossible either. His evidence was that there was not enough evidence to be able to come to a conclusive view.
It was not contended that, as a matter of general principle, it would be an error for a judge to conclude that there are three reasonable possibilities consistent with innocence, none of them are established and that they were, thus, satisfied of guilt beyond reasonable doubt. Rather, the contention was these four questions posed were not the only rational possibilities because they put an onus on the accused to come up with other possibilities.
It was accepted that the trial judge stated on a number of occasions throughout his reasons that he was aware of the criminal burden and onus of proof. The complaint was that this was not translated into practice.

Crown submissions

In response, the Crown submitted that the trial judge had made findings consistent with the onus of proof and all other relevant matters of law. The Crown responded to the appellant's use of Wood v The Queen and Lane v R [2013] NSWCCA 317 by pointing out that, in those cases, it had been the prosecutor who had used questions to imply that the appellant had to provide answers (contrary to what had occurred in the trial in this case).
The Crown relied on cases such as Towney v R [2018] NSWCCA 65, which I will discuss further below. It was submitted that, although questions can confuse juries as to the burden and standard of proof, "[i]t is necessary to look at the use of the phrase in the context of the whole of the summing up, which includes an assessment of the extent to which the burden of proof was otherwise referred to".
The Crown placed emphasis on the points in his Honour's judgment where he re-iterated the burden and standard of proof. These included his directions to himself as to the burden of proof generally and his further directions as to the burden of proof in relation to the Crown's circumstantial case. The Crown submitted that his Honour's directions were consistent with the approach endorsed in Queen v Baden-Clay. The Crown further pointed to the trial judge's references to the burden of proof when referring to the applicant's ERISP, the essential elements of the offence, the expert witnesses, and when giving his verdict.
It was noted that when the trial judge rejected the account given by the applicant in his police interview, his Honour then directed himself that "(i)t does not follow, of course, that I would thereupon find that the accused committed the offence. It remains that having put aside the interview upon the important questions I must decide, I must consider the evidence in the Crown case and the evidence led on behalf of the accused from the experts he called to determine whether the Crown has proven that the accused penetrated this child's anus, as is alleged."

Consideration

It was common ground that the trial judge referred to the appropriate onus and standard of proof on numerous times throughout his reasons for finding the offence proved beyond reasonable doubt. Not only did his Honour direct himself as such on a number of occasions, as an experienced trial judge he was clearly aware of the relevant principles. The complaint made under this ground, however, is more nuanced than a simple assertion that the trial judge misunderstood the onus of proof per se. Rather, it arises from the circumstantial nature of the Crown case.
There was no direct evidence of what happened to the deceased. The Crown case relied upon the evidence of the surrounding circumstances and other injuries, the explanation given by the applicant of the other injuries and the medical evidence. Although some alternate hypotheses were raised by Professors Hilton and Duflou (not only as to the mechanism of the head injury but, significantly, to the rectal heamorrhage) the Crown case was that they could be excluded and the Crown case could be established beyond reasonable doubt.
In Barca v The Queen (1975) 133 CLR 82 at 104; [1975] HCA 42, Gibbs, Stephen and Mason JJ stated the following (footnotes omitted): "When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen."
In The Queen v Baden-Clay, the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ), after citing the above passage from Barca v The Queen, stated the following at [47] (footnotes omitted and emphasis in orginal): "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."
The High Court went on to observe in The Queen v Baden-Clay at [50]: "In the case of circumstantial evidence, the prosecution's burden requires it to exclude all reasonable hypotheses consistent with innocence."
His Honour was clearly aware of these principles and referred to them in his Reasons. It is the application of them in the present case that gives rise to the complaint under this ground.
The trial judge expressly stated that he proposed to adopt the process of reasoning set out in the Crown closing written submissions. The trial judge was first invited to consider the three intermediate facts. Consistent with Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, his Honour had to be satisfied beyond reasonable doubt that the rectal haemorrhage occurred when the deceased was alive, that it occurred "in the hours" before her death and that the applicant was the only person in contact with the deceased at the time the abnormality manifested. His Honour expressed that he was so satisfied. Whether it was open to his Honour to do so will be explored further under ground 3 below.
His Honour stated that "[u]ltimately the issue to resolve was whether it was possible the lesion occurred in an alternate way."
His Honour then considered the four reasonable hypotheses advanced on the defence case and excluded them. They were: 1. That the haemorrhage was a peri or post mortem artefact; 2. That the haemorrhage was the result of a constipated stool; 3. That the haemorrhage was the result of natural diseased process; and/or 4. That the haemorrhage was accused by Professor Lyons during the post mortem.
His Honour was satisfied that he could exclude these four reasonable or rational hypotheses. Again, whether it was open to his Honour to do so will be explored further under ground 3 below. It is what his Honour did after he excluded these four alternate hypotheses that is the nub of the complaint under this ground.
The Crown written submissions had clearly stated that there was a fifth step to take, in addition to excluding the four alternate hypotheses advanced. That step was to consider, in the event that the Crown had excluded the four alternate possibilities, whether the Crown had proved that the haemorrhage was the "result of penetration and therefore an inflicted injury". His Honour did not do so after his Honour excluded the four alternate hypotheses. Instead, his Honour went on to note that the applicant was alone with the deceased at the time, that answers in his ERISP were unsatisfactory (for reasons he had already provided) and that he agreed with the views expressed by Fagan J in that regard. His Honour then concluded his reasons by stating that he "did not intend to continue with any further analysis of the material" and that "for the reasons given" he was satisfied of the offence beyond reasonable doubt.
It is the fact that his Honour did not go on to consider the fifth question raised in the Crown written submissions after excluding the four alternate hypotheses that gives rise to the applicant's complaint that the onus was reversed. That is, it is contended that as soon as his Honour was satisfied that the applicant had not raised a reasonable hypothesis with innocence his Honour then found the applicant guilty.
In order to consider this complaint it is necessary to have regard to the structure of his Honour's reasons overall. I have set them out in some detail above at [146]-[166] but, significantly, it is tolerably clear that his Honour actually considered the fifth question before he considered whether the four alternate hypotheses could be excluded. That is, after referring to the evidence of Professors Hilton and Duflou, and the evidence of Professor Lyons and Dr Marks, his Honour concluded that for "the reasons I have given I have come to the view that I should accept the opinions offered by Dr Marks and Professor Lyons, and I do so beyond a reasonable doubt". After doing so, he went on to explain why he was satisfied that the four alternate hypotheses could be excluded.
There will be cases where the exclusion of any rational hypotheses consistent with innocence will inevitably lead to proof of the Crown case beyond reasonable doubt. For example, if it is common ground in a murder trial that a man was shot in a room containing only he and the accused, and an accidental killing could be excluded, then the only reasonable hypothesis consistent with innocence would be that the deceased had killed himself. If, based on other evidence in the trial, that hypothesis could be excluded then the Crown would have proved its case beyond reasonable doubted. It was conceded during the hearing of the appeal that there are cases where this line of reasoning would be permissible, but this was not such a case.
In this case the four reasonable hypotheses consistent with innocence were not the only matters relied upon by the defence to raise a reasonable doubt. A significant part of the defence case relied upon the significance of the lack of mucosal injury (rather than sub-mucosal injury). The failure to have specific regard to this evidence was relied upon by the applicant under this ground both to establish that the trial judge reversed the onus of proof and also that he misunderstood this aspect of the defence case.
As for the Crown's reliance upon the decision in Towney v R and the applicant's reliance upon the decision in Wood v The Queen, I have not found these decisions to be of particular relevance. Towney v R concerned whether the trial judge had improperly sought to define the phrase "beyond reasonable doubt". That was not this case. Similarly, the decision of Wood v The Queen concerned a complaint that the Crown Prosecutor had impermissibly reversed the onus of proof by inviting the jury, when considering its verdict, to consider whether the appellant had provided satisfactory answers to questions raised by the Crown. That was not this case either.
What happened in this case was that the Crown identified the four alternate rational hypotheses in its final written submission. There was no issue taken by the applicant's trial counsel with this approach. The Crown then articulated a fifth question to be addressed which his Honour addressed earlier in his reasons but without any reasons as to that finding.
It seems to me that the real complaint under this ground is that his Honour did not provide reasons as to why, in addition to excluding the four alternate hypotheses, he also discounted the evidence of Professor Duflou (absence of injury to the rectal mucosa) and Professor Hilton (absence of injury to the anus), before being satisfied beyond doubt that the offence was proved. That is, he made no finding on this issue.
For the reasons stated above, I am not satisfied that a reading of the Reasons as a whole discloses that his Honour reversed the onus or failed to grasp the defence case. Rather, the real complaint under this ground is that the trial judge failed to provide any reasons for preferring the Crown expert witnesses over the evidence of Professors Duflou and Hilton regarding the significance of the lack of injury to the anus and rectal mucosa. I will consider those complaints under ground 2.
I would not uphold ground 1.

Ground 2: The trial judge gave inadequate reasons for his findings, and particularly gave inadequate reasons for rejecting the evidence of Professors Hilton and Duflou in favour of the evidence of Professor Lyons and Dr Marks

Applicant's submissions

In relation to ground 2, it was submitted that the reasons were brief, that the four expert witnesses expressed very different views about on the cause of the bruising and the reasons did not address why his Honour preferred the evidence of Professor Lyons and Dr Marks over Professors Hilton and Duflou. The applicant cited a number of authorities regarding the obligations to provide reasons including Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, Alchin v Daley [2009] NSWCA 418 and CJ v Regina [2012] NSWCCA 258.
The applicant further submitted that the trial judge misunderstood the evidence of Professor Duflou in relation to causation. The applicant submitted that the trial judge understood Professor Duflou to be basing his opinion on the two articles (exhibits B and C), which the trial judge found to be unconvincing. But, it was submitted, Professor Duflou had not based his evidence on the articles; he had simply referred to them to demonstrate the complex processes within the body during peri-mortem and post-mortem. The applicant also submitted his Honour misunderstood Dr Marks to be conclusively opining that there had been penetration of the rectum. The applicant noted that that his Honour did not give reasons for accepting Dr Mark's evidence as conclusive.
It was also submitted that his Honour erred when finding that there was little difference between the experts concerning the time of the injury as Professor Duflou gave differing evidence as to post-mortem bleeding.

Crown submissions

In relation to ground 2, the Crown pointed out that the trial was a relatively short one and was confined to relatively narrow issues. The Crown also noted that his Honour had the benefit of "comprehensive written submissions" from both parties, supplemented by oral submissions. The Crown placed particular emphasis on his Honour's summary of the evidence of the medical experts, dealing individually with the evidence of Professor Hilton, Professor, Duflou, Professor Lyons and Dr Marks. Before this, his Honour had set out the relevant principles and directed himself accordingly.
The Crown submitted that his Honour's subsequent treatment of the expert evidence in relation to the three intermediate facts satisfied the requirement of adequate reasoning. His Honour dealt with the timing of the injury and noted that there was no dispute between the experts as to the fact that the haemorrhaging occurred proximally to time of death. Professor Lyons and Professor Duflou had opined the lack of inflammatory cell reaction to the haemorrhaging as the reason for this conclusion. As the trial judge indicated, this means that the third intermediate fact was established, as the applicant was the only person caring for the deceased at the time that the injury was inflicted.
The Crown drew attention to the fact that his Honour then subsequently dealt with the most critical issue, which was whether the injury was inflicted as a result of blunt force injury or some other mechanism. That is, his Honour considered whether the injury was "a peri-mortem artefact of dying". In relation to the articles relied upon by Professor Duflou, the trial judge found that these could not support the peri-mortem artefact theory because they did not indicate that such injuries had been described as occurring in paediatric populations.
Reliance was also placed on the transcript of the trial to establish that the questions asked by the trial judge throughout the trial show that his Honour grasped the medical evidence and the issues of agreement and contention as between the Crown and the applicant.
Overall, the Crown submitted that this demonstrated that his Honour understood the issues surrounding the expert evidence and dealt with them with adequate reasons.

Consideration

The principles in relation to the requirement that reasons be provided for any judicial decision are well established. Both the applicant and the Crown relied upon the decision of Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. McHugh J explained (at 279) of that decision why the provision of reasons is important to the judicial process: "The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment 'is not only to do but to seem to do justice': The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability."
In Mifsud v Campbell (1991) 21 NSWLR 725, Samuels JA, with whom Clarke JA and Hope AJA agreed, observed at 728D: "…in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case."
His Honour went on to observe at 728E: "…for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge……may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done."
In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA observed at 443: "No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435."
In Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174, Ipp JA, with whom Bryson JA and Stein AJA agreed, stated the following at [59]: "It is, of course, well settled that a judge does not need to refer to all the evidence in the proceedings or to indicate which of the evidence is accepted or rejected. The extent of the duty to give reasons depends upon the circumstances of the individual case: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (per Samuels JA, with whom Clarke JA and Hope A-JA agreed). But it is not for nothing that in some bilingual countries the judgment of the court is given in the language of the unsuccessful party. The proper administration of justice requires reasons to be given in a form, firstly, that will enable the losing party to understand properly the grounds upon which the case was lost, and, secondly, that will not, effectively, frustrate the losing party's right of appeal: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667."
In Alchin v Daley [2009] NSWCA 418, Sackville AJA, with whom McColl and Young JJA agreed, observed at [35]: "…(iii) The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties ... see Soulemezis v Dudley, at 259, per Kirby P; at 280, per McHugh JA. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute (at [62]): Beale v GIO (1997) 48 NSWLR 430, at 443, per Meagher JA."
The requirement for a trial judge sitting alone in a criminal trial on indictment to give reasons is provided in s 133 of the Criminal Procedure Act 1986 (NSW) which provides as follows: 133 Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter. (Emphasis added.)
In Fleming v The Queen (1998) 197 CLR 250; [1999] HCA 68, the High Court observed the following (at [28]) regarding the predecessor to s 132(2) (s 33(2)): "…whilst s 33(2), when specifying that which a 'judgment' must include, does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached."
It was also held in Fleming v The Queen (at [32]) that the requirement in the predecessor to s 132(3) (s 33(3)) "to take the warning into account" is not only to be discharged but also to be seen to be discharged". It was later observed in the same paragraph: "The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law."
It was also held in Fleming v The Queen (at [30]): "…if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded." (Emphasis added.)
An example of an extreme failure to provide reasons is to be found in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8. It was common ground in the Court of Appeal and the High Court that the trial judge had failed to provide adequate reasons. As Heydon J noted at [85], "[t]he failure was almost as complete a failure as could be imagined". His Honour had earlier stated at [84] that "[i]n many cases the question of whether there has been compliance with the duty imposed by s 120(2) [the analogous WA provision] will raise questions of degree". His Honour then expanded on the different ways that a trial judge might be seen to have complied or not complied with requirements to provide reasons as follows (footnote omitted): "Those questions will arise where a trial judge has stated various principles of law but has failed to state another, although it has obviously been assumed. They may arise where a judge has stated that numerous facts have been found, but has omitted to state a particular finding of fact. In many cases the question of whether there has been compliance with s 120(2) will also raise difficulties of distinguishing between, on the one hand, a defective statement of legal principle, an unconvincing factual finding, an invalid inference or a questionable application of principle to fact and, on the other hand, a failure to state a principle of law, make a finding of fact or expose the 'reasoning process linking' the principles of law to the findings of fact. Sometimes the statement of positive propositions coupled with the non-statement of others can satisfy s 120(2) because it amounts to a statement of the principles of law actually applied or the findings of fact actually relied on even though the omission reveals error in what was said; sometimes, on the other hand, the statement will not satisfy s 120(2). To record various legal principles which a judge said were applied may be to comply with s 120(2), but the process of recording them may reveal errors in their statement or application which disclose 'a wrong decision on a question of law' within the meaning of s 30(3)(b) of the Criminal Appeals Act or a miscarriage of justice within the meaning of s 30(3)(c). And to record various findings of fact which a judge said were relied on may be to expose errors of reasoning which reveal that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence misapplied by that judge, it is unreasonable or cannot be supported within the meaning of s 30(3)(a), or there was a miscarriage of justice within s 30(3)(c). Further, to make a statement of all relevant principles of law or of all relevant findings of fact but also to state some irrelevant ones may raise questions under s 30 (3)(b) and (c) of the Criminal Appeals Act."
In Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699, the High Court considered the adequacy of reasons of a trial judge sitting without a jury in a child sexual assault trial. In the reasons for finding the offence proved beyond reasonable doubt the trial judge stated that he accepted the evidence of the complainant and made no mention at all of the appellant's evidence in his findings. The South Australian Court of Appeal dismissed the appeal. On appeal to the High Court the court (French CJ, Hayne, Crennan, Kiefel and Bell JJ) observed the following at [12]: "The Court of Criminal Appeal's reliance on McHugh JA's statements in Soulemezis was misplaced. Soulemezis concerned the sufficiency of the reasons of a judge of the Compensation Court of New South Wales in a proceeding in which the right of appeal was confined to a question of law or in relation to the admission or rejection of evidence. It was an error to view the appellant's trial as reducing to a case of 'word against word'. It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt."
The Court went on to state at [14]: "In this case, the failure to record any finding respecting the appellant's evidence left as one possibility that the judge simply preferred CD's evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error."
In CJ v Regina [2012] NSWCCA 258, Hall J (with whom Beazley P and Campbell J agreed), observed the following in the context of an appeal to this court on a failure of the trial judge to explain why he rejected a mental illness defence (at [92]): "The judicial duty to provide reasons may have a particular content where a trial judge is required to resolve differences of opinion between properly qualified reputable experts. In a passage which has been frequently cited with approval in New South Wales, in Flannery v. Halifax Estate Agencies Limited [2000] 1 WLR 377 (at 381 - 382; 377 - 378), Henry LJ said: 'It is not a useful task to attempt to make absolute rules as to the requirement for the Judge to give reasons. This is because issues are so infinitely various. For instance, when the Court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than the witnesses for one side were more credible ... but with expert evidence, it should usually be possible to be more explicit in giving reasons: see Bingham LJ in Eckersley v. Binnie (1988) 18 Con LR 1 at 77 - 78: 'In resolving conflicts of expert evidence the Judge remains the Judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely) a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons ...' ... [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the Judge must enter into the issues canvassed before him and explain why he prefers one case over the other ...' [See Moylan v. Nutrasweet Co. [2000] NSWCA 337; Mistral International Pty Ltd v. Polstead Pty Ltd [2002] NSWCA 321; Archibald v. Byron Shire Council (2003) 129 LGERA 311; Wiki v. Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 136 [60] - 138 [68]]."
In W v R [2014] NSWCCA 1, this court considered a ground of appeal alleging inadequacy of reasons in a child sexual assault trial where issues of credibility were determinative. Bathurst CJ (with whom Hoeben CJ at CL and Bellew J agreed) observed at [144]: "Contrary to the appellant's submissions, I do not believe it was necessary to refer to the appellant's age or the fact there were some entries in the diary demonstrating feelings of guilt and anger towards the appellant. The obligation on the judge was to adequately expose his reasons in a case where, as he recognised, the evidence of the complainant needed to be scrutinised with great care."
Bathurst CJ went on to dismiss the ground of appeal as follows (at [147]-[148]): "However, as McHugh JA pointed out in Soulemezis v Dudley (at 280-281), the obligation does not require lengthy or elaborate reasons, although it is necessary that the essential ground or grounds on which the decision was based should be articulated and in many cases the reasons for preferring one conclusion over another should be given. However, where the resolution depends entirely on credibility, he stated it was probably enough that the judge simply finds one way over another: see also CJ v Regina [2012] NSWCCA 258 at [91], Alchin v Daley [2009] NSWCA 418 at [35], R v Keyte [2000] SASC 382; (2000) 78 SASR 68 at [56] and R v Power [2003] SASC 77; (2003) 141 A Crim R 203 at [52]-[57]. In the present case the trial judge gave himself the requisite warnings, dealt with the evidence of the complainant, the evidence of the other witnesses, some of the inconsistencies in the complainant's evidence and stated that after taking the appellant's submissions into account, he accepted the complainant as reliable as to the occurrence of the events the subject of the charges on which the appellant was convicted. In these circumstances, in my opinion, he fulfilled his obligations under s 133(2) of the Criminal Procedure Act to expose his reasoning principles."
The requirements to give reasons under s 132 were also considered in Wade v R [2018] NSWCCA 85 by RA Hulme J (with whom Schmidt and Hamill JJ agreed) at [99]-[104]. The court did not uphold a ground asserting inadequacy of reasons as it was satisfied that the only explanation for the verdicts (and acceptance of the evidence of the complainant) was the rejection of the appellant's evidence.
With these principles in mind, I turn to consider the complaint that the trial judge's reasons were inadequate.
I have set out the trial judge's reasons in some detail above from [146] to [166] and do not propose to repeat here what I have extracted above. His Honour made no findings on the first day of his judgment, on that day he gave himself the appropriate legal directions (as to which no complaint is made) and summarised the ERISP and Fagan J's findings. On the second day, the reasons provided by his Honour included the following: 1. When listing the expert witnesses for the purpose of the Expert evidence direction, his Honour noted that Professor Lyons had a greater opportunity to make observations as he conducted the post-mortem. 2. His Honour stated that he accepted the Crown expert witnesses. 3. His Honour accepted the approach in the Crown submissions to determine the intermediate facts first. He was satisfied they had been established "to the requisite standard", as there was "little if any conflict between the experts" regarding the timing of the lesion and the applicant conceded he was alone with the deceased at the relevant time. 4. His Honour stated that "[f]or the reasons I have given, I have come to the view that I should accept the opinions offered by Dr Marks and Professor Lyons, and I do so beyond reasonable doubt. 5. The reason provided for rejecting Professor Duflou's opinion that it could be a peri or post-mortem artefact was that it was based on the two articles and "the significance of that material within the context of this case involving a baby of such tender age was limited". 6. The reason provided for rejecting the possibility of constipation was that "I find that is not a reasonable or rational possibility for the reasons I have explained, drawing upon Dr Marks and Professor Lyons". 7. No reason was provided for excluding a natural disease but none was ultimately provided by any of the experts. 8. Similarly, no reason was provided that rejecting the possibility that Professor Lyons had caused the injury during the post-mortem but, again, there was no evidence called about this either. 9. His Honour later concluded that he was satisfied of the applicant's guilt beyond reasonable doubt "for the reasons given".
In addition to the brevity of the reasons explaining why certain expert evidence was preferred over other expert evidence, no reasons were provided at all for rejecting that part of the defence case regarding the absence of any mucosal tearing or any damage to the entrance of the anus to raise doubt as to whether the injury was a penetrative one.
I have had close regard to the Reasons but nowhere did his Honour explain why the evidence of Professor Lyons and Dr Marks had been preferred to that of Professors Duflou and Hilton on the discrete question of lack of other injury issue. The only observation by his Honour from which any reason might be inferred was when it was noted that it was Professor Lyons who conducted the post-mortem and, thus, had an added advantage.
Complaint was also made about the inadequacy of Reasons for accepting the evidence of Dr Marks. Although the explanation for preferring the evidence of Professor Lyons could be explained by the fact that it was he who conducted the autopsy, no separate reason was provided for preferring the evidence of Dr Marks over the experts called by the applicant.
Having regard to the principles I have set out in some detail above, I am satisfied that the Reasons are inadequate, insofar as they make findings favouring the evidence of the Crown experts over those called by the applicant. In particular, there was an absence of any finding regarding the significance of the absence of mucosal damage.
I have come to the view that the significance of the evidence the trial judge failed to mention in his Reasons means that the applicant has established error under this ground.
I would uphold ground 2.

Ground 3: The verdict was unreasonable and could be not supported by the evidence

Applicant's submissions

In relation to the third ground of appeal, the applicant relied upon the fact there were four experts with differing opinions concerning the rectal haemorrhage. As noted above, the applicant submitted that his Honour did not give sufficient weight to the views of Professor Duflou and Professor Hilton.
The applicant also argued that there was an inconsistency between his Honour's findings and those of Fagan J. Fagan J found that the child's death was not premeditated and borne out of frustration. By contrast, Judge Bennett SC found that the anal injury was deliberate and intentional. Finally, the applicant submitted that his Honour misunderstood the defence case. The defence case was that unusual phenomena in the peri-mortem and post-mortem periods caused this injury, not that the Professor Duflou's analysis was the only explanation. The applicant also relied on its argument in relation to ground 2 in relation to ground 3.

Crown submissions

The Crown provided lengthy written submissions in response to the applicant's argument on ground 3 and I shall consider them in detail in my consideration below. In summary, the Crown argued that there was ample circumstantial evidence to prove the applicant's guilt, as there were logical bases to prefer the evidence of the expert witnesses for the Crown over those called by the applicant in relation to areas of dispute.

Consideration

The applicant contended that the fact that the three forensic pathologists in this matter could not agree on what caused the anal lesion should be enough to raise a reasonable doubt as to the applicant's guilt. Although that proposition might seem persuasive at first blush, it is not the approach for the court to take under this ground.
In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 the High Court stated the applicable test for determining whether a verdict is unreasonable under the first limb in s 6(1) of the Criminal Appeal Act as follows (footnote omitted): "Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice."
Gageler J stated it this way at [83]: "Irrespective of whether it is applied in an appeal against conviction following a jury trial or in an appeal against conviction following a trial by judge alone, the question under the first limb is always whether the ultimate finding of guilt was one which was open to the tribunal of fact on the whole of the evidence."
It was further noted in Filippou v The Queen that "the question for the Court of Criminal Appeal was not whether it was 'satisfied that the judge's account was correct' but whether her Honour's findings as to the sequence of events were not reasonably open" (per French CJ, Bell, Keane and Nettle JJ at [56]).
With these principles in mind, I turn to consider the evidence.
Although I have summarised much of the expert evidence already, it is necessary to analyse it further under this ground in order to address the specific arguments raised by the applicant.
The elements of the offence contrary to s 66A(1) of the Crimes Act were that the applicant had "sexual intercourse" with a child under 10 years of age and under his authority. There was no issue taken that the child was under 10 years of age nor with the fact that she was under the applicant's authority. The only issue in dispute at trial was whether the Crown could establish beyond reasonable doubt that the haemorrhage was the result of a penetration of the anus with an object.
The definition of sexual intercourse in s 61HA of the Crimes Act is, relevantly, as follows: (a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by - (i) any part of the body of another person, or (ii) any object manipulated by another person, except where the penetration is carried out for proper medical purposes.
Thus, there is no requirement for the Crown to establish any sexual motive; simply that there was penetration of the child's anus with either a finger or an object.

The intermediate facts

Two of the intermediate facts concerned the timing of the rectal haemorrhage. The applicant contends that it was not open to the trial judge to be satisfied beyond reasonable doubt that the rectal haemorrhage occurred in the hours prior to death because this finding overlooked the evidence of Professor Duflou.
Professor Hilton was not asked to opine on the timing of the injury but the evidence of Professor Lyons and Professor Duflou was largely the same. Professor Lyons put the timing as within 24 hours per death whereas Professor Duflou put it as 8 to 12 hours before death.
Professor Duflou's opinion as to timing in his report was as follows: "My general comments in relation to the ageing of injuries applies that histologic appearances of the anal rectal pathology shows a lack of inflammatory cell reaction, indicating that it is likely this was sustained hours (possibly up to eight to 12 hours) prior to death. But I cannot state whether those abnormalities occurred at the time of the other injuries or not. It is also entirely possible this abnormality occurred in the immediate perimortem period."
Professor Duflou expanded on this opinion in court as follows: "In general, if you look at tissue likes skin and you bruise skin, within 24 hours or so you will get an inflammatory cell reaction developing. It can be much, much sooner than that but almost inevitably by 24 hours you will get an inflammatory cell reaction. If you look at something like heart muscle and you damage the heart muscle through a heart attack, that time period is eight hours. If you look at something like the liver and you damage the liver, in general within an hour or two you start getting an inflammatory cell reaction. Now, I haven't mentioned the rectum and the reason why I haven't mentioned that is because I don't know how long it would take for an inflammatory cell reaction to appear but likely, it's shorter than 24 hours. My view is you could be fairly certain that it will appear within eight to 12 hours, I think. It seems likely to me, but could it be as short as one hour? Certainly, inflammation can appear as quickly as that in all sorts of areas of the body, but I would expect it to be present by eight to 12 hours at the latest."
The evidence of Professor Lyons was that injury would have occurred up to 24 hours before death. When the above extract from Professor Duflou's report was put to him he replied as follows: "A. Okay. Well, first of all Professor agrees that there's no inflammatory cell reaction. Secondly, I mean, he's given, he seems to have homed in on a more, a tighter timeline than I am. But I mean, I can't, I'm of the opinion, I've said I certainly don't think it's older than 24 hours, because there is no vital reaction. I think that, the earliest microscopic appearances, by which I mean seen down a light microscope, as opposed as other ways that you could look at injury patterns, would be in more around 12 hours. But I mean, I don't take great disagreement."
It is clear that the two experts were in agreement that, if it was an injury, it occurred when the deceased was alive and within hours of death. The area of difference between them was as to whether it was an injury at all. After giving the above answer (at [243]), the applicant's counsel at trial went on to ask the following questions of Professor Duflou: "Q. And you also state that it's also entirely possible this abnormality occurred in the immediate perimortem period? A. Yes, correct. Q. Are you able to expand on that? A. The perimortem period is the time around death. Now, again, for different organs that is different times, so as an extreme example, the perimortem period for bone fracture is multiple days while the perimortem period for something like damage to the brain is probably in the space of an hour or two, at most. So, it really depends on the organ and again, we have a very similar problem here in that we don't know in relation to the rectum but bleeding certainly can occur in tissues immediately before death, immediately at the time ‑ well, at the time of death itself and in the hour or so after death and I am firmly of the view that you cannot tell whether such haemorrhage occurred immediately prior, at the time of, or after death. All of them will show blood in the soft tissues only and no inflammatory cell reaction."
To be clear, both experts agreed that if it was an injury it was inflicted within hours before she died, the qualifier was as to whether it in fact was an injury.
I have had regard to the evidence of timing. Putting to one side for the moment Professor Duflou's theory of post or peri-mortem artefact, there was no dispute as to the timing of the rectal haemorrhage. Thus, if the reasonable possibility that it was post or peri-mortem artefact could be excluded, it would certainly be open to be satisfied beyond reasonable doubt that the intermediate facts had been established.

The four alternate hypotheses

Of the four alternate rational hypotheses advanced two can be easily discounted for lack of evidence. All three forensic pathologists agreed that there was no evidence of any illness which could have caused the haemorrhage. Although Professor Hilton was asked to consider whether the haemorrhage could have been caused (accidentally) by Professor Lyons whilst conducting the post-mortem, the trial judge rejected the question as it had not been suggested to Professor Lyons and was pure speculation.
That left two remaining alternate hypotheses. The first of these was whether the deceased had been constipated.
The evidence of Professor Lyons was that the child was not constipated. He was not cross-examined to suggest that he was wrong on that issue. Similarly, Dr Marks' opinion was that the haemorrhage was "severe and would not be explained by the passage of stool". The applicant had also told police that the deceased had a dirty nappy and he changed it after the "fall" and before he took the deceased to hospital. Similarly, the evidence of Professor Duflou was that "[i]n my opinion severe chronic constipation is unlikely to cause such abnormality and I note that the bleeding appears to be entirely recent without an inflammatory reaction".
It was only Professor Hilton who raised the possibility of constipation. His response to Professor Lyon's opinion that the deceased was not constipated was as follows: "..constipation is a function not a structural abnormality so there's a caveat from that aspect. The other caveat is that there is no way of knowing whether the child might not have had a very constipated stool which it passed at a time fairly proximal to its decease thereby producing some localised bleeding into the mucosa. Again, it's just interesting that there was no damage to the actual lining itself, it was beneath the lining so it's a pressure effect rather than a sharp effect."
Based on the evidence of these four expert witnesses, I am satisfied that it was open to the trial judge to exclude constipation as an alternate hypothesis as well.
That leaves as the only remaining alternate hypothesis Dr Duflou's explanation that it would be a peri or post-mortem artefact of the agonal period. The trial judge rejected this explanation as it was based on the two articles summarised above and his Honour concluded that the significance of that material within the context of this case involving a baby was limited. The complaint made on this appeal is that the trial judge misapprehended the significance of the two articles. That is, the applicant contended that Professor Duflou did not base his opinion upon them; he simply produced them as examples.
Professor Duflou's opinion was that the haemorrhage could have been the result of the prolonged agonal phase of at least 1 hour and 40 minutes. That is, substances can be released from a damaged brain which can have the effect of causing the appearance of bleeding in unusual locations. He noted that such agonal phenomena often occur in the soft tissues of the gastrointestinal system, such as in pancreas and behind the bowel. Both Professors Duflou and Lyons agreed about the occurrence of post-mortem artefacts generally; their dispute was as to whether the rectal haemorrhage in the present case was such an artefact.
When asked about the two reports he had referred to (Exhibits B and C), Professor Duflou described the relevance of them as follows: "Q. Now professor, in the following paragraph of your report you make some reference to hanging cases and reference to two papers. Do you want to make any comment with regards to those papers at this stage? A. Well I'm not ‑ I mean obviously I've made it known that these are hanging cases and the reason why I have considered the papers is because effectively they've been described in hanging and there's an assessment in those papers as to why possibly you might see that haemorrhage. I'm not suggesting this child has been hanged by any means at all but I think what those papers inform us is that you can get changes like this when they don't necessarily make total sense. That you should not view them as being indicative of sexual assault. But the de la Grandmaison paper that discusses mechanism and it comes to no further conclusion at all but effectively they consider two major possible mechanisms. One is that it is the result of congestion of the abdomen organs, associated with what they call acute vegetative circulatory dysregulation during a long agonal phase. Now I think that's not unreasonable at all. What effectively they are saying is a person who has a prolonged period in which they are dying may get such factors because of abnormalities in the circulatory system. The other aetiology they get is haemorrhagic lividity, in other words the settling of blood after death and obviously if you're hanging blood does settle down and could potentially settle in the rectum, in the wall of the rectum. And I accept that could be an alternative explanation. It might possibly both explanations could be operative in some circumstances and not in others. But I think the other point that de la Grandmaison makes that I think I do need to mention is and this isn't necessarily the Queen's English in this paper, but they do state here "historically does not provide clue between ante mortem versus post mortem haemorrhage." And I think this is an area where Professor Lyons and I do differ. He says it could not have occurred in the peri mortem period or after death. I absolutely disagree. I think you cannot tell. And certainly there's a peer review paper, mentions that you can't tell that either. So I say there is a very pronounced lividity, normal haemorrhages are often incurred contrary to the findings of Talbot and Morita. Signs of vital reaction were not found in our cases especially in the family changes or thromboses which were not present. So post mortem extravasation of blood may occur in particular circumstances and may simulate ante mortem bruises. They were referring to there especially in relation to dependent lividity as an example. So I think in summary what I used that paper for is to show that you can get rectal haemorrhages in cases where there has been no damage to the rectum whatsoever and which is likely an agonal peri mortem post mortem type phenomenon."
Professor Duflou provided the following answers in cross-examination about the two papers: "Q. Just in relation to your observations in your report that you have prepared, you relied heavily on two papers; a paper by Schulz and a paper by Grandmaison, is that correct? A. I do not rely on them, I quote them. Q. You have quoted them. But you were asked to provide a hypothetical alternative to Professor Lyons‑‑ A. A hypothetical possibility, yes. Q. Yes and one of the hypotheses that you put forward is to look into this type of ligature or hanging literature for in effect examples to support your theory as to the causation of this injury to this child is that correct? A. I used the papers including other papers as well which indicate that you can get some rather unusual abnormalities appearing in the rectum and anus in fatalities which are not the result of direct force to that part of the body."
Professor Lyons had excluded the possibility of the rectal haemorrhage being a post-mortem artefact from the time of the autopsy. He described the haemorrhage this way in the post-mortem report: "Fresh mucosal and sub mucosa haemorrhage to the rectum, the injury pattern suggests recent trauma due to the introduction of a foreign object into the rectum, the features seen are not due to post‑mortem artefact. In my opinion this is a non accidental injury." (Emphasis added.)
Professor Lyons expanded on this opinion in court as follows: "Q. And you commented the features seen are not due to post‑mortem artefact, professor, what does that mean? A. Forensic pathologists have to be very well aware of pathological changes that occur after death that can be misinterpreted as injury patterns. So an example of post‑mortem artefact may be the pooling, the way that ‑ the blood pools to dependent parts of the body, so if a body is lying on its back, blood pools to the back of the body. And particularly in people who are lying ‑ sorry, if the person's lying face down, so an elderly person who dies maybe with the head off the end of the bed, they have lax, softer tissues and you can get bleeding just simply post‑mortem because you get pooling of blood, the blood vessels rupture as the body begins to decompose and it creates a pattern of bruising. And for the unwary, that could be interpreted as an injury, but in point of fact, it's what we ‑ a forensic pathologist would describe as a post‑mortem artefact. And there are ‑ there are many of those. I think pertinent to this case, your Honour, is the fact that in my post‑mortem report I comment that the anus is patulous. It is ‑ when one dies, the anal sphincter relaxes and it allows the mucosa of the first part of the rectum to prolapse out of the anus and historically that was misdiagnosed as potential trauma, but it's a well‑documented post‑mortem artefact."
Professor Lyons provided a number of reasons for doubting the explanation advanced by Professor Duflou of peri or post-mortem artefact. I have already set these out above at [101] and [102].
When Professor Lyons was asked his opinion about the two papers in his evidence in chief he replied as follows: "A: Well, Professor Duflou is alluding to the first of the two mechanisms that are discussed in the paper. I mean, he's ‑ I've tried to put it into plain English rather than use the more complex scientific terms. In essence, he is arguing the same argument as argued in the papers. If you have ‑ he's arguing that if you have a prolonged agonal period, that you can get abnormalities arising in the blood supply to the gastrointestinal tract that can cause congestion. It can produce bleeding into the bowel wall that can produce as he ‑ he's referring to artefacts. I think of far more relevance is the discussion on the second mechanism, your Honour, which is they discuss in ‑ they then go on to discuss that the ‑ in hanging, that you get dependent hyperspaces. So, in other words, in hanging the blood will pool to the more distal regions of the body, and externally forensic pathologist will refer to glove and stocking distribution of lividity, because you get lividity from the naval to the feet, and from the arms to the ‑ well, from the elbows, I mean, to the tips of the fingers, and in this paper they go on ‑ in both papers they then allude to the fact that you get exactly the same mechanism in internal tissues. So you get pooling of blood to the pendulum parts of the body, and, again, that ‑ that, to me, is a more favourable argument; that you would get the pooling. The rectum is a distal portion of the body, and that, to me, seems to be a more ‑ of the two arguments, it seems to me to bear more medical strength pathophysiologically. And Professor Duflou, he had just ‑ discusses one of the two mechanisms. I believe both mechanisms should have been discussed. I don't have any other comments to make."
Although Dr Marks was not a forensic pathologist, she indicated that she felt it was within her expertise to answer questions about the post-mortem artefact hypothesis. She said this about it: "A. Yes. As I've said before, I'm not a pathologist, and certainly in any reading that I have done I haven't read ‑ and I don't think any of the other witnesses who are pathologists have made any mention of finding rectal mucosal haemorrhage in children which might then be thought to be an artefact of dying. The injury that this little girl had was a circumferential injury to the rectal mucosa in several centimetres, but as I've explained you can penetrate the anus without causing any injury to the anus, so I think I disagree that that's the most likely explanation of the rectal haemorrhage."
She had also read the two articles referred to by Professor Duflou and gave evidence that caution should be exercised in relation to acceptance of it.
Professor Hilton did not favour the post-mortem artefact theory either. His opinion was that: "…in the actual process of dying unpredictable things can sometimes happen ‑ that's unlikely to produce any bleeding in that particular area, but probably not impossible."
As for Professor Duflou's opinion on this issue, Professor Hilton stated, "I cannot favour that opinion over any other opinion as to causation. I can't." Professor Hilton was then asked about the two papers and the following exchange took place: "A. Well, they were prepared in a different context. I wouldn't say they were of not great ‑ I wouldn't say they were of no assistance in that they introduce concepts which are worthy of consideration but with the caveat that we are dealing with two distinct and separate situations. Q. And you would express that as in accepting those papers or indeed in considering those papers a degree of caution ought to be applied in relation to the findings and opinions expressed in those theses in relation to this particular case before the Court? A. Yeah, to extrapolate the main thrust of the thesis of these papers into this context. It's quite properly done but it's done with considerable reservation."
I have considered the evidence as to whether the alternate hypothesis of a peri or post-mortem artefact could be excluded and I am satisfied that it was open to his Honour to do so. Not only did three out of the four experts not favour it, there was no evidence that anything like it had ever been seen in a child so young before. Whether Professor Duflou relied on the two reports or, as was contended by the applicant on appeal, simply cited them, they seem to be of little assistance for the numerous reasons articulated by Professor Lyons. When those articles are put to one side, the basis for Professor Duflou's alternate theory is speculative at best. Although it was common ground as between the forensic pathologists that post-mortem artefacts can arise and are something to be aware of, the nature of this haemorrhage and the absence of any other time when such an injury had been found confirms to me that it was open to the trial judge to reject this alternate explanation.

The evidence of injury

Having excluded the alternate hypothesis raised on the evidence and, thus, been satisfied that the intermediate facts had been established beyond reasonable doubt, the remaining question posed by the Crown at trial was whether his Honour ought to have had a reasonable doubt that the haemorrhage was the result of penetration of the anus by a smooth object.
The trial judge observed in his reasons that Professor Lyons had a greater opportunity to make observations as he conducted the post-mortem. This is a relevant factor when weighing the expert evidence. Furthermore, there was some doubt on the evidence as to whether Professor Duflou had seen the slides prepared of the post-mortem. His Honour sought to clarify this of Professor Lyons as follows: "HIS HONOUR: Could I just clarify. Q. The material to which Professor Duflou was given access was material that was prepared in the course of your post‑mortem examination? A. That would be correct, yes. Q. That would have included the tissue that you'd removed, and from which you took slides, for the purposes of microscopic examination? A. Correct, your Honour. Q. It would have included perhaps images of what was to be seen on the microscope, rather than the slides themselves, so that you have an immediate representation of what was captured by way of microscope, or the slides themselves? A. I think Professor Duflou, who actually saw the slides, your Honour. That would be normal practice."
In his examination in chief Professor Duflou agreed with the following: "Q. And I note from your report that you have had access not only to the notes and reports of Professor Lyons but also Dr Marks and Professor Hilton? A. Yes, correct."
Despite this, Professor Duflou did not believe that he had seen the slides as reflected in the following exchange: "Q. And with regard to slides, do you have any access to slides? A. No, I did not examine the slides for the purposes of providing this report. I assumed that the observations made by Professor Lyons were correct. Q. And you proceeded on that basis? A. Absolutely, yes. I did not see the slides ‑ every though I did this report, it is ‑ I have to say it's possible that I may have seen the slides when I was still employed as a forensic pathologist at the Department of Forensic Medicine in Glebe, but if so I have no recollection of that at all. It wouldn't be unusual for slides to be shown around."
Professor Lyons was consistent with his evidence throughout without being dogmatic. An example is as follows: "Q. Just turning to question 13 again, question 13 for the avoidance of any doubt is your reply to Professor Duflou's observations in his report that for example the question reads, 'Do you agree that the injury was non‑accidental injury?' And your reply, Professor, was? A. I am of the opinion the evidence of haemorrhage is indicative of circulation of blood through the rectal tissues and therefore indicative the injury occurred before death. I am also of the opinion that this is an injury not an abnormality or artefact. Q. Now you have already explained some of that terminology to the Court today, just in relation to the importance or otherwise attached to the circulation of blood through the rectal tissues, you have indicated that in your opinion that is a strong indicator that the injury occurred before death, is that correct? A. Yes, but particularly because in this case it is a very ‑ there was a rich amount of blood within the tissues and it is also rather, it is a very characteristic injury pattern in that it is circum fringed and well defined."
In cross-examination Professor Lyons' opinion was tested in this way: "Q. Professor, in your report ‑ sorry, not your report, certificate dated 16 May 2017, in paragraph 1(c) on the second page about 60% of the way down, you state that, 'I am of the opinion that the injuries occurred before death, ante‑mortem, not that they could be attributed to artefacts as part of a post‑mortem process,' again, is that an absolute opinion on your part or is that one that you find more like than not? A. No, I mean, I'm firmly of the opinion that there were ante‑mortem injuries. I don't believe ‑ I do not believe they're a post‑mortem artefact."
And later: "Q. Is it possible that Professor Duflou's opinion there is correct? A. In my opinion, no."
Dr Marks was not a forensic pathologist but is an expert in childhood injuries including sexual interference. Her evidence, as summarised above, was that it is "misleading" to suggest the absence of other injury to the mucosa excludes a sexual assault. She stated "[i]t's quite possible to penetrate the anus of a child" and that a finger can be put in a child's anus without causing any injury to it. She also gave evidence that if you have a forceful injury it can go through the anus without injuring it, but you might expect to see blunt force trauma where that insertion ends.
Dr Duflou's evidence about the absence of other trauma included the following exchange: "Q. Do you agree that the injury was non‑accidental injury? A. I do not know whether the anal/rectal abnormality is an injury and if it is an injury whether it was the result of accidental/natural means or the result of abuse." A… there was no damage to the surface of the mucosa. Q. Such as scraping or abrasion or any such assault‑‑ A. Yes, any indication of physical force to the surface of the rectum and anal region and that to me really is very important in this case. Q. Yes? A. Because effectively if you were to insert an object, whatever that might be, a pencil, a finger, whatever object, to the extent that you would cause circumferential bruising over such an area, it really surprises me that you would not get any mucosal damage at all, not even visible under the microscope. And when you have this disparity it really doesn't appear to make sense. One of the things you always consider is this a post‑mortem, perimortem type artefact and not a true injury."
He was further asked about the post-mortem artefact hypothesis and responded as follows: "Q And professor you concluded your report in that your final paragraph, 'I conclude that it is entirely possible and in my view most likely in this case that the finding of isolated anal stroke rectal intramucosal haemorrhage is a peri mortem artefact of dying. The lack of any other anal/rectal injury and the absence of DNA and chemical evidence further strengthens my view that this abnormality is a peri mortem artefact and is not the result of insertion of a blunt object into the anus.' Is that still your view? A. Absolutely yes. …… A. I do not believe that it is likely that you would get only bleeding without mucosal damage. A. I am not so much concerned with a lack of injury to the anus itself, the anal entrance if you like or exit. What I am concerned about is the lack of surface injury where bruising is because that is where the application of force is and at this circumferential and multiple locations, and as such you would expect there to be an application of force but which I note Professor Lyons indicates is moderate to severe in amount. Yet surprisingly there would be no indication whatsoever of damage to the mucosal surface itself."
I pause here to note that whereas Professor Hilton was concerned about the lack of injury to the anus, Professor Duflou was not (nor were Professor Lyons or Dr Marks).
The trial judge questioned Professor Duflou on this as follows: "Q. Just tell me this, can I, perhaps you can clarify this for me professor, why would you expect to see damage to the mucosa? Is it ‑ I suppose I should raise this question, is it at least possible that the penetration might have occurred ‑ I'm getting some feedback ‑ the penetration might have occurred without causing damage to the surface of the mucosa? A. Your Honour you can certainly get penetration without damage to the surface of the mucosa. I have no doubt whatsoever that this can occur and as I've said previously insertion of a finger would not be expected to cause surface mucosa damage. What's of relevance here is the presence of the haemorrhage within the depths of the mucosa without damage to the overlying tissue. The mucosa itself is one cell layer thick. It's at a microscopic level and there was no damage here to the mucosa at all when looked at under the microscope."
Professor Duflou also gave these answers: "A. Well I mean effectively I think it's fair to say Professor Lyons is of the view that this injury has been caused by another person causing direct injury to the rectum. I say it remains a possibility but it's not one which I favour and which I think can be reasonably explained on the basis of changes that happen to the body in the peri mortem period. A. I don't think I have ever said that insertion of, for example, a finger or a pencil would necessarily cause injury to the anus. But what is of relevance is the mucosal surface here in the vicinity of the mucosal haemorrhage."
The opinion of Professor Hilton was, in summary in his report, as follows: "The congestion and mucosal bleeding in the rectum is indicative of trauma. However, the absence of any trauma at the level of the anal sphincter (the point of maximum resistance to any anal penetration), may cast some doubt on the rectal mucosal appearances having been affected by an object passing through the anus and into the rectum from the exterior of the body."
Professor Hilton later added that: "Testing for any personal lubricants was negative. While this observation cannot exclude the introduction of a foreign object through [the deceased's] anus, the absence of any anal injury makes such penetration as the cause of internal rectal bruising, while not impossible, perhaps less likely."
When explaining why he could not be certain as to causation in this matter, Professor Hilton was questioned by the trial judge to clarify his position as follows: "Q. So your opinion with regards to causation is ‑ do you have an opinion as to what could have caused this particular‑‑ A. Well, there's the ‑ the negative aspect that there is no ‑ there is no direct evidence of something being introduced from outside, in. The damage, such as it is, is inside ‑ it's in the rectum. The presence of the hard constipated stool on the passage of said stool could well account for this degree of effusion blood into the soft tissue. Look ‑ I ‑ I think that there's ‑ there's ‑ there is no ‑ there's an insufficiency of evidence for any ‑ no ‑ I can't say that ‑ I can't talk for my colleagues. For me to give a definite opinion as to what did cause the effusion of blood into the soft tissue of the rectum there are a number of possibilities. I cannot weight one over another. HIS HONOUR Q. Can I just ask you this: your opinion can be summarised this way, I think? You concede the possibility of the application of some force within the rectum that could produce what was seen by the professor who conducted the post mortem ‑ that was Professor Lyons, but upon what you have seen you can't discount other possible explanations which bear equal merit upon the analysis of the material that you have observed in the course of your study of the matter ‑ is that a fair summary? A. Yes."
The most significant aspect of this evidence, which was not specifically referred to in the Reasons for conviction, was the lack of injury to either the rectal mucosa or anus. The evidence of Professor Duflou was that he had no difficulty with the lack of entry injury to the anus; only to the lack of injury to the mucosa of the rectum. Professor Hilton, on the other hand, was concerned with the lack of injury to the anus. That is, out of the four experts only Professor Duflou was concerned about the lack of injury to the mucosa of the rectum and only Professor Hilton was concerned about the lack of injury to the anus.
As opposed to the consistency of the Crown expert evidence, the defence experts were either unable to agree with each other on a number of matters or agreed with aspects of the Crown evidence.
I have considered the evidence on this issue and am satisfied that the lack of injury to the mucosa does not lead to a conclusion that the trial judge's verdict was unreasonable. The finding of guilt was one which was open to his Honour on the whole of the evidence at trial.
The Crown case was that the act of penetration was in the context of frustration and anger, but clearly a deliberate act. It relied upon the facts in Trevor Essex v R [2013] NSWCCA 11 in support of its submission that such injuries could be inflicted out of frustration. Trevor Essex v R was an appeal to this court where one of the charged acts was the insertion, by the applicant, of a hose nozzle into the vagina of a three year old child. There was conflicting expert evidence but the trial judge favoured the Crown expert evidence that a physical object had been non-accidentally introduced into her vagina when he lost his temper with the child.
Although it is certainly an unusual crime, it could not be said that it was unlikely that a caregiver might inflict such an injury in the context of anger and frustration in the same way as the injuries were inflicted in relation to the manslaughter finding. The injury is not to be considered in a vacuum. It must be considered in the context of a violent assault on an 11 month old child. The trial judge was satisfied that the applicant was frustrated and lashed out at the child. There was no requirement for the applicant to do so for a sexual motive. It may have been for a medical reason but there was no evidence of that, as the applicant offered no explanation beyond a bare denial. Although the trial judge correctly noted that the applicant's unsatisfactory answers in relation to the other physical injuries did not amount to positive proof of guilty, they do provide context to the event overall. I have had regard to the applicant's ERISP and, despite the fact that the applicant was not asked about the rectal injury, his answers otherwise were a matter of concern. It was well open to the trial judge to make the findings he did in that regard.
Once the medical evidence established beyond reasonable doubt that the haemorrhage was an intentional injury, there was no additional onus on the Crown to prove the precise object used, nor the applicant's motivation. Despite the lack of evidence on these two factual matters, I am not satisfied that the trial judge ought to have had a reasonable doubt in this matter.
I would not uphold ground 3.

ORDERS

I would propose the following orders: 1. To the extent necessary, extend the time within which to appeal. 2. Grant leave to appeal. 3. Appeal allowed. 4. Quash the finding of guilt made by the District Court on 9 November 2018. 5. Order that there be a new trial.

Amendments 19 December 2022 - [40] and [228] word "not' inserted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2022

(2003) 129 LGERA 311

Toohey v R

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