Ussher-Clarke v R

Court of Criminal Appeal (NSW)|2017-09-22|Before: Beazley ACJ, Walton J, Adams J

Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/267176 Decision under appeal Court or tribunal: District Court Date of Decision: 03 June 2016 Before: Sweeney DCJ File Number(s): 2014/267176

[This headnote is not to be read as part of the judgment] On the night of 9 September 2014, the appellant kicked his partner, the complainant, on the left side of her abdomen. The complainant was around 12 weeks pregnant, and she miscarried the following morning. In the weeks following the miscarriage, the appellant made a number of phone calls to the complainant in which he engaged in conduct directed at having the complainant lie to police to ensure that there would be no evidence against him at trial. The appellant was charged with one count of recklessly causing grievous bodily harm contrary to the Crimes Act 1900 (NSW), s 35(2), and one count of the offence of intending to procure, persuade, induce, or otherwise cause a person to be called as a witness in a judicial proceeding, to give false evidence, or to withhold true evidence, or not to attend as a witness, contrary to the Crimes Act (NSW), s 323(a). As alternatives to the grievous bodily harm offence, the appellant was also charged with assault occasioning actual bodily harm, contrary to the Crimes Act 1900 (NSW), s 59, and common assault, contrary to the Crimes Act 1900 (NSW), s 61. The s 59 count was withdrawn during the course of the trial. During the trial, a number of experts gave conflicting evidence as to the possible causes of the miscarriage. The appellant was found guilty of the s 35(2) charge. He had previously pleaded guilty to the 323(a) charge. The primary judge imposed an aggregate sentence of 5 years, 6 months, with a non-parole period of 4 years, commencing from 3 May 2015. The issues on the conviction appeal were: (i) Whether the s 35(2) verdict was unreasonable and could not be supported by the evidence; and (ii) Whether the trial judge erred in failing to adequately direct the jury in relation to the expert evidence on causation. Beazley ACJ (Walton J and N Adams J agreeing) held, granting leave to appeal the conviction, but dismissing the appeal: (i) Given the conflicting medical evidence as to the cause of the complainant's miscarriage, the question for the jury's determination was whether they could be satisfied beyond reasonable doubt that the kick by the appellant to the complainant's abdomen was a significant cause of the miscarriage and that the other nominated causes of the miscarriage were excluded as reasonable possibilities: [62]. (ii) The Court did not have a reasonable doubt that that the complainant's miscarriage was caused by trauma. The other possible causes of miscarriage postulated in this case were either not established, such as genetic abnormality, or did not rise above a possibility, as in the case of infection and cervical incompetence, or the possibility was so statistically low, as in the case of spontaneous miscarriage at 12 weeks and some days, as to be reasonably dismissed as a cause in this case: [89]. Velevski v R (2002) 187 ALR 233; [2002] HCA 4; Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83; Campbell v The Queen (1980) 2 A Crim R 157; Royall v R (1991) 172 CLR 378; [1991] HCA 27; R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174; Reynolds v R (2015) 249 A Crim R 208; [2015] NSWCCA 29; Chamberlain (No 2) (1984) 153 CLR 521, referred to. Beazley ACJ (Walton J and N Adams J agreeing) held, refusing leave to appeal in relation to the directions of the trial judge: (i) There was no error in the directions given by the trial judge in relation to the expert evidence on causation: [98]; [100]; [101]; [105]. R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20; Poniris v R [2014] NSWCCA 100; Jubraeel v R [2015] NSWCCA 131; ARS v R [2011] NSWCCA 266; Velevski v R (2002) 187 ALR 233; [2002] HCA 4, referred to.

Judgment

BEAZLEY ACJ: On 21 September 2015, the appellant was found guilty by a jury of recklessly causing grievous bodily harm to his partner, Leigh Silvestri, between 8 and 11 September 2014, contrary to the Crimes Act 1900 (NSW), s 35(2), being count 1 on the indictment. An offence contrary to s 35(2) carries a maximum sentence of imprisonment of 10 years. The appellant had also pleaded guilty to an offence of intending to procure, persuade, induce or otherwise cause Ms Silvestri, a person to be called as a witness in a judicial proceeding, to give false evidence, or to withhold true evidence, or not to attend as a witness, contrary to the Crimes Act, s 323(a). This was count 4 on the indictment. That offence carries a maximum penalty of 7 years. The primary judge imposed an aggregate sentence of imprisonment on the appellant of 5 years, 6 months with a non-parole period of 4 years to date from 3 May 2015. The appellant is eligible for release on 2 May 2019. The indicative sentences nominated by her Honour were as follows: (i) count 1: 5 years imprisonment with a non-parole period of 3 years, 9 months; (ii) count 4: 2 years, 10 months imprisonment.
The indictment as presented at trial contained another two offences charged alternatively to the s 35(2) charge. The first, count 2 on the indictment, was that between 8 and 11 September 2014, the appellant did assault Ms Silvestri thereby occasioning actual bodily harm to her, contrary to the Crimes Act, s 59(1). The second alternative, being count 3 on the indictment, was that between those dates, the appellant did assault Ms Silvestri, contrary to the Crimes Act, s 61.
The second count on the indictment was withdrawn during the course of the trial.

Issues on the appeal

The appellant has appealed against conviction on two grounds: 1. the verdict was unreasonable and cannot be supported by evidence; 2. the trial judge erred in failing to adequately direct the jury in relation to the expert evidence on causation.
If the conviction appeal were to be allowed, the appellant seeks that this Court resentence him in relation to the s 323(a) offence in circumstances where the trial judge had imposed an aggregate sentence.
The essence of the Crown case was that on 9 September 2014, the appellant kicked Ms Silvestri, who was then just over 12 weeks pregnant, to the stomach, or abdomen, and that this caused her to miscarry the following day. The loss of the unborn child was the grievous bodily harm alleged in respect of count 1 on the indictment: see the Crimes Act, s 4 definition of "grievous bodily harm". The appellant denied that he kicked Ms Silvestri and, in any event, also disputed that the miscarriage was caused by a kick to the abdomen.
The appellant accepts that if he is successful in his challenge to his conviction of the offence in count 1 on the indictment, nonetheless, there should be a verdict of conviction in respect of the offence on count 3 on the indictment, namely, that he assaulted Ms Silvestri contrary to the Crimes Act, s 61. The Crown submitted that the jury verdict and the fact that the appellant now accepts that there should be a conviction for common assault establishes that the appellant kicked Ms Silvestri in the stomach. This was not disputed, such that the position on appeal is that there was no dispute that the appellant kicked Ms Silvestri.

Factual background

The Crown case as to the circumstances of the assault was advanced by way of two statements made by Ms Silvestri to police on 11 September 2014. The first statement was made at Royal Prince Alfred Hospital (RPA). The second statement was in the form of an ERISP conducted on the afternoon of 11 September 2014. Subsequently, in a statement given on 20 October 2014 and in her evidence in chief at trial, Ms Silvestri claimed that the appellant had not assaulted her. Ms Silvestri's earlier statements were admitted into evidence pursuant to the Evidence Act 1995 (NSW), s 38.
The following evidence is taken from the answers Ms Silvestri gave during the course of the ERISP and comments she made during the interview at RPA.
On the night of 9 September 2014, after about 9:30 or 10pm, the appellant kicked Ms Silvestri to the left side of her abdomen. It was a forceful kick and it hurt her. She said she felt pain "straight away". Ms Silvestri told the appellant that "that's the last time you ever hurt me" and she left the house and went to the house of John Najjar, a friend and neighbour. Mr Najjar described Ms Silvestri as being very upset when she arrived at his home. After trying to sleep, Ms Silvestri got up to go to the toilet. She said that she felt like she had wet herself. She said that she wiped herself with a tissue and saw that the fluid was "a bit pink".
The following morning, Ms Silvestri told Mr Najjar she was in terrible pain. She miscarried at about 7:30am-8am. A triple-0 call was played to the jury which included Ms Silvestri describing to the operator how she had given birth in Mr Najjar's bathroom. The foetus was wrapped in a towel and subsequently retained for examination by a pathologist, Dr Krivanek.
Dr de Vries did not observe any bruising when he examined Ms Silvestri. However, a small faint bruise had appeared by 11 September, when Ms Silvestri was interviewed by police, at which time she said "it still hurts my ribs a bit now". The police took a photograph of the bruise that Ms Silvestri pointed out to them as being the place where the appellant kicked her. The bruise was located high up on the ribs on the left hand side. Ms Silvestri said that when she went back to the appellant's house she asked his mother for a cigarette. This is relevant because of the evidence of the medical witnesses of the connection between smoking and miscarriage, which is discussed below.
Ms Silvestri, who was 34 at the time, also had a 16 year old daughter. Ms Silvestri had had a previous miscarriage. The evidence did not disclose when that was, but it was during her relationship with the appellant, which had been ongoing for 3-4 years. According to Ms Silvestri, the foetus on that occasion was not viable, which she attributed to her O-negative blood status, and for which she was given injections in her current pregnancy. When asked by the police whether she had any other diagnosed or underlying conditions that she had been told about that meant that she couldn't have a baby, Ms Silvestri said "no". She denied that she had had five to six miscarriages, as the appellant had asserted to the police.

Ground 1: the verdict was unreasonable and cannot be supported by the evidence

The essential issue at trial and which is again raised by this ground of appeal was that given that there was conflicting evidence given by medical expert witnesses as to the cause of the miscarriage, the jury ought to have had a reasonable doubt as to whether it was caused by the appellant. The appellant contended that the prosecution was unable to establish to the requisite standard that the kick caused the miscarriage and was unable to negative the other hypotheses in relation to causation.
The appellant submitted that the expert evidence of Dr O'Connor and Professor Hilton when taken in combination with the evidence of Dr Krivanek would not support a conviction on the basis that the kick was a significant cause of the miscarriage. The Crown submitted that even though there were a number of possible causes for the miscarriage and differences in the opinions of the medical experts in respect of those causes, the evidence, properly analysed, was such that the real issue was whether Ms Silvestri had contracted a cervical infection and if not whether trauma had caused the miscarriage.
These respective submissions, each central to the determination of the appeal, requires a consideration of Ms Silvestri's evidence as to the assault and what occurred subsequently up to and including the miscarriage, which is set out above, as well as a detailed consideration of the medical evidence, which follows. Before going to the medical evidence, it is to be noted that at trial, the Crown was granted leave, pursuant to the Evidence Act, s 38 to cross-examine Ms Silvestri. In the course of her evidence, she denied the assault and, relevantly, in respect of the question as to whether there were other reasonably possible causes of her miscarriage, she said that this miscarriage was her second and that she had had three terminations.

Medical evidence

Dr de Vries, who attended Ms Silvestri when she presented at RPA on 11 September 2014, gave evidence in the Crown case, as did Dr Krivanek, who examined the foetus. The appellant adduced expert medical evidence in his case from Dr O'Connor, obstetrician and gynaecologist, and Professor Hilton, consultant in forensic medicine.
It is convenient for the purposes of the necessary analysis of the medical evidence to consider it by reference to the temporal link between the time of the kick to the abdomen and the miscarriage; the relevance of bleeding after the kick and before the miscarriage and the various postulated causes of the miscarriage, namely, spontaneous miscarriage; cervical incompetence; smoking; genetic causes; trauma, and cervical infection.

Dr De Vries

Dr De Vries examined Ms Silvestri in the area where she said the bump to her abdomen had taken place but there appeared to be no tenderness or bruising or any other evidence of trauma. He was asked: "Q. ... operating on the information that you were provided with, namely, a bump to the abdomen near the ribs and no physical evidence, you took the view that that of itself wouldn't cause any miscarriage, is that right? A. I did take that view."
Dr De Vries said that it was less likely for trauma to cause a miscarriage during the first trimester, because the foetus is protected. He agreed that having regard to the "limited material [he] had" and his examination of Ms Silvestri, he was "unable to say that the miscarriage was caused by a physical trauma).

Dr Krivanek

Dr Krivanek, in his evidence in chief, said that there were no internal or external defects in the foetus to explain the miscarriage. Dr Krivanek also found "very subtle inflammatory changes" in the placenta, "consistent with a very early, very mild foetal inflammatory response". No "morphological abnormalities [were] identified", that is, there was "no [or] minimal maceration". Dr Krivanek explained that: "Maceration is the effect, essentially the breakdown, of body tissues that can occur after a baby or a foetus dies in utero. So there was no minimal maceration. The significance of that is that it implies that the foetus had not been dead for a prolonged period of time in the uterus."
No genetic abnormalities were found on cytogenetic testing.
Dr Krivanek said a foetus may miscarry following the rupture of membranes, as had occurred here. In response to what might cause membranes to rupture, he said that amniotic fluid infection alone was "a recognised cause of rupture of membranes and of miscarriage". He explained this further, as follows: "A. The possible mechanism by which a rupture of membranes could relate to this is that the foetus is contained within the gestational sac and rupture of that sac can facilitate or allow an ascending infection from the cervical or vaginal tract lower down to ascent. That is one of the possibilities … … A. … rupture of membranes at this gestation will often be followed by miscarriage and delivery of the baby. … A. Amniotic fluid infection alone is a recognised cause of rupture of membranes and of miscarriage, yes. … Q. So in relation to the infection was that something that fitted within, in developmental terms because you talk about a mild condition, is that something that could have been caused by an incident that many hours before, this is about ten, 12, 14 hours, is that consistent with that? A. I believe it is consistent. There are a number of factors that are relevant in that judgment. The first is that this is a very young gestational age and the foetal ability to mount an inflammatory response is not as well developed early so a mild foetal response is not surprising even in the context of infection. There are many cases where we do not see any foetal response despite a documented material response to infection. As to whether the timing, if there is an alleged assault subsequently followed by rupture of membranes. If those membranes had ruptured in association with that trauma then, yes, I would consider that one of the possibilities is that there was enough time for infection to then ascent and cause the inflammation that I saw, yes, that is possible. Q. … In relation to the time line and what you were seeing during the course of your examination I think that you've said that you considered the very close temporal association between the alleged trauma and the subsequent maternal vaginal discharge and then the subsequent miscarriage as being a factor that could be said to be very significant. Is that a fair comment. Is that your position? A. Yes, it is. I have taken into consideration that the alleged trauma was closely associated with and my position would be that the closer the alleged trauma to the miscarriage that the greater the chance that that trauma played a role in the miscarriage."
Dr Krivanek said that he would consider trauma to be a possible cause of Ms Silvestri's miscarriage and that he did not find any positive evidence to support other causes. He accepted that infection can result in rupture of the membranes without trauma. However, Dr Krivanek said that infection was a recognised occurrence in the first trimester but it was less common. He said that the peak gestational time for infection was around 20-24 weeks.
Dr Krivanek concluded his evidence in chief in relation to the possible causes of the miscarriage as follows: "My position is that having established that trauma is a potential or possible cause of miscarriage either by direct rupture of the membranes, which then allows an ascending infection or by a pre-existing infection, that results in weakened membranes that subsequently rupture in the context of trauma, that either of those scenarios is possible. I, however, in the context of the timing of the alleged trauma and the very close relationship of the subsequent PV discharge, would believe that it is actually a reasonably likely proposition, while acknowledging that there are other possible causes of miscarriage."
Dr Krivanek, having said that the possibility of a genetic defect was being "quite small", was cross-examined as follows: "Q. … trauma alone is a possible cause of the miscarriage, correct? A. I would say possible, certainly, yes. Q. Infection alone is a possible cause of the miscarriage, is that correct? A. Yes, it is. Q. A combination of both of those is a possible cause of the miscarriage? A. Yes, it is. Q. And there are also other causes separate from those three … is that correct? A. yes, there are. Q. That includes things completely separate to the chromosomal abnormalities that we've already discussed, correct? A. Yes, other separate things, yes. Q. So some of those other possible causes are things such as cervical incompetence? A. That is a recognised cause of miscarriage, yes. Q. Smoking while pregnant? A. That is a recognised cause of miscarriage, yes. Q. These are things that you are unable to determine from looking at the physical matter that you examined in this case, is that correct? A. Yes, it is correct. Q. In other words, your examination does not rule out the possibility of this miscarriage being a result of cervical incompetence, correct, and your examination does not rule out the possibility of smoking during pregnancy being a possible cause of this miscarriage? A. That is true. … Q. … I just want to ask you about infection as a possible cause of miscarriage … … Q. Infection alone can cause a miscarriage, is that correct? A. Absolutely, yes. Q. When you examined the physical matter that you examined in doing your testing, you did find evidence of infection, is that correct? A. I did, yes. Q. That's infection in relation to amniotic fluid, isn't it? A. That's right. That's right, and an amniotic fluid infection evidenced by a maternal inflammatory response and probably a very subtle foetal response, yes. Q. It's possible that that infection existed before any trauma, if there was trauma, is that correct? A. Yes, that's possible. Q. It's possible that absent trauma, infection alone could have been the cause of the miscarriage, is that correct? A. Yes. … Q. When you answered a question from the Crown Prosecutor about trauma or a combination of trauma and infection being reasonably likely, that was based essentially on the timing of the event, is that correct? A. Yes, a large part of that judgment is based on the very close timing of the alleged trauma to a rupture of her membranes and then the subsequent miscarriage. Yes, that's correct. Q. Putting aside timing, there would be no other way that you could assign a preference for one cause ahead of any other cause, is that correct? A. If there was much less of a close association, then I would say that that provides much less support for trauma being related, that's right. Q. There's a well-known saying in science and other relevant fields that correlation is not causation? A. Yes. Q. And that's obviously the concepts that if-- A. Yes, association is not cause. That's right, I agree. Q. And if A and B both happen, it's unsafe to necessarily say that A caused B, is that correct? A. I agree with the principle, yes."
Dr Krivanek said that "the definitive cause of miscarriage cannot be stated in this case", "[w]hat can be discussed is likelihoods and probabilities".

Dr O'Connor

Dr O'Connor, as with the other medical witnesses, said that the classic causes of miscarriage, apart from spontaneous miscarriage, were smoking, maternal age and infection. He also said that "just having a miscarriage increases [the] risk of having another one" and that, sometimes, the cervix could be damaged "at the time of removing the products of conception" following a spontaneous miscarriage. His evidence in this regard was as follows: "A. Well as I said in my report, the classic cases or causes are things like smoking, maternal age and so on, those sort of - and infection, so those are very common causes. And then if you look at trauma in more depth, one of the issues can be that the cervix can be damaged as a result of previous for example terminations of pregnancy so that the cervix doesn't stay shut. The classic time for it to occur is normally about 14 weeks but it can occur a little bit earlier and that presents usually with ruptured membranes followed by bleeding and the loss of the baby. Q. Just to stay on the question of the cervix, you mentioned terminations? A. Yes. Q. What do terminations or abortions do to the cervix? A. Okay, so with a termination of pregnancy obviously you have to dilate the cervix, the bottom of the uterus, to be able to evacuate the products of conception. The bigger the termination, the larger the size of the uterus, the larger the dilatation has to be to get the pregnancy out. So for example as a rule of thumb, if you have a nine week pregnancy you would have to dilate the cervix to nine millimetres. If it was ten and so on. In - there is a threshold over which cervical incompetence becomes likely and that threshold is nine millimetres. So if the termination has involved a dilatation of the cervix of nine millimetres or more then it is possible that cervical incompetence may follow and that can be a permanent damage to the cervix. It damages the valvular mechanism of the cervix. Q. Are you saying that cervical incompetence can be a cause of a miscarriage? A. Yes. Q. And is that something that can cause a miscarriage even if the female patient does not receive any trauma? A. Yes. Q. You said that abortions or terminations can cause cervical incompetence. Is there a minimum number of abortions or terminations that someone has to have before they will experience cervical incompetence? A. Well, there are two aspects of that. One is that it depends a bit on how you dilate the cervix. So if it's really excessively dilated, you might only need one termination to do it but certainly if you look at the spectrum of risk, then multiple terminations increase that risk as well. Q. Just staying on this topic of cervical incompetence, if the patient has previously had a miscarriage, can that affect their cervical competence or incompetence? A. It can do. It's not so much that it affects it, that in itself affects the risk of miscarriage but having or damaging the cervix but just having a miscarriage increases your risk of having another one so that's one issue and the other thing is that sometimes the cervix can be damaged at the time of removing the products of conception at a spontaneous miscarriage. So the obstetrician dilates the cervix enough, you can do it then as well."
Dr O'Connor was cross-examined on the question of cervical incompetence being a cause of miscarriage as follows: "Q. Finally, can I just ask about one other matter because I just want to ask you some questions about cervical competence but is it true that in this case of course you were never invited to examine this lady were you and to actually carry out any - A. No, this was, I only saw this material a few days ago. Q. And as I understand it, you've not had any material that actually confirms either way whether this lady potentially suffered from what we'll call cervical incompetence, is that correct, sir? A. Can I answer it this way that it's basically on a history that. Examining the patient is not necessarily very helpful. Q. So to be absolutely blunt about it, the answer is no to my question, is that right? A. Yes."
Dr O'Connor accepted that the likelihood of spontaneous miscarriage of a foetus of approximately 12 weeks was less than 0.5 per cent. He said that smoking increased the chance of spontaneous miscarriage but he was unable to quantify the increased risk. In relation to infection, Dr O'Connor said that it "might be the cause of ruptured membranes", which would result in a miscarriage. Alternatively, an infection could be the consequence of the membranes being ruptured, and that it would be almost impossible for "any pathologist or clinician" "to say whether … infection was a result of trauma or was already there before the trauma". He accepted that chromosomal abnormalities could be put aside in this case having regard to the results of the testing carried out by Dr Krivanek.
Dr O'Connor was of the opinion that the "likelihood of trauma" having caused the miscarriage was very low, because at the stage of Ms Silvestri's miscarriage, "the uterus is very well protected by the bony shell of the pelvis". He also described the trauma as a cause of miscarriage at this stage of Ms Silvestri's pregnancy as being "extremely rare". He considered that there would need to be "a fairly significant degree of trauma" to cause miscarriage at that stage, with, for example: "… a very good degree of bruising … lacerations … abrasions of the abdomen to really convince you that this was a fairly significant degree of trauma."
When asked about the timing of trauma and miscarriage, Dr O'Connor responded: "Q. So if an opinion was put forward that there was a close correlation in time between alleged trauma on the one hand and a miscarriage on the other hand, would that give you any reason to safely conclude that the trauma caused the miscarriage? A. No."
Dr O'Connor accepted that it was unlikely that a fall headfirst from the bed, or slipping off the edge of a bed and dropping a couple of feet to the floor, both being scenarios that had been advanced by the appellant as having occurred on the night of the assault, were unlikely to have caused a miscarriage. In short, his opinion was that "at 12 weeks an injury underneath the left ribs or the right ribs is very unlikely to cause direct trauma to the uterus". He said that there were many possibilities for the miscarriage in this case and that "putting trauma into the mix [was] just one possibility".
Dr O'Connor also gave evidence as to the "pink discharge" that Ms Silvestri said occurred shortly after having been kicked by the appellant. Dr O'Connor said that "a pink discharge is often … a prelude to a miscarriage". He disagreed that infection was "significantly less common" at this stage of a pregnancy than at later stages. Further, in his opinion, the contribution of trauma and infection to the miscarriage was "a possibility", but not "a strong possibility". However, Dr O'Connor agreed that "as a potential cause to the rupture in the membrane, a fairly … subtle inflammation of that type [was] unlikely … to lead to a miscarriage" at the stage of Ms Silvestri's pregnancy.
Dr O'Connor was questioned further in cross-examination about the temporal connection between the trauma and the miscarriage as follows: "Q. And in trying to hone our analysis down on what we know, don't you accept that because there's on the face of it - and you may say, well, I don't know the timeline - but on the face of it there seems to be a very close temporal association between the alleged trauma and the subsequent vaginal discharge of the fluid and then the foetus. Isn't that significant in determining whether or not this is one of these rare events where the trauma may have either a direct impact or a significant impact upon the person carrying the baby and thus the miscarriage that follows. Isn't the timing key in this case? A. It's interesting, but I'm not sure that it links it causatively. Q. Well, let's sort of stand back for a moment and just remind ourselves where we are? This lady is going along on the face of it, she has an ultrasound a few weeks before the incident, nothing doing. In medical terms seems to be on the face of it normal. On the night and in the days leading up there is no suggestion that that position changes. On the day in question, the only thing that seems to happen is that she says, I'm kicked very hard in the stomach, in the soft part between the ribs and the gone [sic], and then she miscarries within 12 hours we'll say .. (not transcribable) .. are we really saying that that's not significant, the timing? A. I think it's just very difficult to say that that was the reason-- Q. So this is very much in medical terms a coincidence, is that what you seem to be saying? A. Yes, it could be. It could be a misadventure, yes. Q. Or it could be that the kick has either directly caused the miscarriage or significantly contributed to the miscarriage because of other underlying things that's going on unbeknown at that time, is that right? A. Yes, I think it gets to the question of whether it's safe to come to that conclusion or not. Q. All right, well, I'm doing my best to close in. So you think the timing can be significant then, given the propositions that I've just put to you? A. Possible." (emphasis added)

Professor Hilton

Professor Hilton stated that at an early stage in pregnancy, cervical incompetence was not "a terribly important" factor as a cause of miscarriage. Rather, that was a problem as the baby grew and put pressure on the cervix. He said that smoking was "associated with an increased miscarriage rate". He also accepted Dr Krivanek's findings that there were "subtle" manifestations of infection.
Professor Hilton considered that the "likelihood of direct trauma to the uterus causing a miscarriage" at approximately 12 weeks of the pregnancy was very low unless the trauma had been severe. As he explained, the uterus at that stage was "protected by the pelvic bones". Professor Hilton said that the absence of bruising or tenderness diminished the likelihood of trauma being a cause of the miscarriage but did not obviate it, because "blunt force trauma may not produce ... bruising", but observed that bruising may not have become evident for several days after having been inflicted.
However, in cross-examination, Professor Hilton accepted that trauma could cause a miscarriage. His evidence was as follows: "Q So when it comes to trauma I think you [are] in the same camp as everybody else who's given evidence in this case of a medical nature that trauma can cause miscarriages? A. Yes. … Q. So I think what you were saying in the report … … it can be argued that a transient increase in intra-abdominal pressure as a result of such a blunt force being applied may adversely affect the uterus perhaps by raising intra-uterine pressure? A. Yes. Q. That's effectively consistent with a kick? A. Well, a kick, blunt force trauma, absolutely, non-specific. … Q. That's right so I'm saying if you catch [the body of the uterus and the bag that the foetus is contained in] at the wrong place you can trigger [a miscarriage], can't you? A. Yeah but the problem is with this scenario, this time in pregnancy, that the uterus is largely protected by bone against direct trauma. Q. That's why I'm saying to you that largely is not equated to totally, is it? A. No. Q. And that's why I'm saying to you it depends on how the blow lands that will determine whether or not it catches that part which is exposed by this stage and that's important factually, isn't it, when we're determining what we think about this case? A. Can I just get quite clear in my own mind, are you suggesting that in this particular case at this particular point in pregnancy it's at all likely that a blow is delivered that actually impinged on the uterus? Q. That hit the - that's right, not just the foetus which is quite small but I've called it for convenience the bag with the fluid that it sits within? A. That has to be considered a possibility. It would have to be a fairly, not remote but somewhat distant possibility."
Professor Hilton was likewise of the opinion that indirect trauma was unlikely to have caused a miscarriage. As he explained: "… some application of a substantial force to the abdomen, might be thought to increase intra-abdominal pressure and that pressure wave may be transmitted down into the pelvis. Having said that, the abdominal wall is usually protected by a varying layer, a thickness layer of fat, which will dissipate the force applied by a blow. The abdominal contents themselves, apart from the solid organs like the liver, are hollow and they're tubular, they are I suppose rather like the inner tube of a bicycle, and that again will tend to dissipate force rather than transmit a substantial force down into the pelvis".
However, he agreed in cross-examination that a "direct hit on the foetus" was not necessary "to trigger [a] miscarriage".
Professor Hilton was asked about Dr Krivanek's view as to the correlation in time between the trauma and the miscarriage as follows: "Q. You're aware that Dr Krivanek has concluded that it's because of the correlation in time between on the one hand the alleged trauma and on the other hand the miscarriage that he has concluded that it is reasonably likely that the trauma may have caused the miscarriage. You're aware that he concluded that? A. I don't know that he said it was reasonably likely, I think he said it was a reasonable proposition or words to that effect, and, yes, there is a reasonably clear cut temporal correlation between the alleged application of force to the abdomen and the subsequent miscarriage. But again, as Dr Krivanek said and I would endorse that, one cannot say because there is such a temporal relationship there's a cause and effect relationship. Q. So are you able to say how certain one can be that if there was trauma, whether such trauma caused the miscarriage in this case? A. There's no way to put a degree of certainty on it, you can't even put a degree of probability on it. It's a possibility, it's a reasonable possibility. It may have had some possibly indirect effect, but I can't put any level of certainty. Is it proper to put a level of uncertainty than certainty? Q. So if someone was to say it's the probable cause, what would you say about that? A. I would have to ask them on what grounds they're saying that, what's the mechanism, why is it so. … Q. If one was to assume that there was a kick to the stomach and a miscarriage the next day, would it be a safe conclusion to say that one probably caused the other? A. No, it's not a safe conclusion, but I can understand why people may say it." (emphases added)
Professor Hilton accepted that the infection could have pre-dated the trauma or could have been caused by the trauma. He also said that infection alone could not be ruled out as a cause of the miscarriage in this case.
Professor Hilton, in cross-examination by the Crown Prosecutor, was also asked about infection and trauma: "Q. Obviously no one is saying that they can definitively say whether the infection was there before or after this trauma? A. No. … Q. If you have a trauma of the type that I've described that can trigger a miscarriage, can't it, by intervening on an existing problem? A. That would be a possibility that would have to be considered, yes. Q. And therefore whatever your views about the ultimate passage of the pregnancy at the moment in which the trauma is actually occasioned, if we assume for a moment it is, it clearly does significantly intervene on the passage of that pregnancy, doesn't it? A. Yes, it could do. Q. And one of the ways it significantly intervenes is it could actually trigger a miscarriage? A. It could do."
Professor Hilton finally expressed his opinion that he "would be highly reluctant to put any particular cause with any degree of certainty" on the cause of Ms Silvestri's miscarriage.

Appellant's submissions

The appellant submitted that the verdict was unreasonable or could not be supported having regard to the evidence, because given the conflicting evidence of the experts regarding what may have caused the miscarriage, the jury ought to have had a reasonable doubt as to his guilt: see M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and restated in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53.
The appellant submitted that there was no basis to reject the opinions of Professor Hilton and Dr O'Connor in relation to the temporal relationship between the alleged kick and the miscarriage. He submitted that this was a matter where the conflicting expert evidence was based on scientific matters that the jury did not have the ability to resolve and that the jury's finding of fact that he kicked Ms Silvestri did not resolve the dispute between the experts: Velevski v R (2002) 187 ALR 233; [2002] HCA 4 at [82]-[89] per Gaudron J.
The appellant submitted that this was a case where there was a "trap that common sense could lead you in the wrong direction" and that the temporal link between the trauma and the miscarriage was "inviting, even enticing". He submitted that there was a divergence of opinion between the three expert witnesses in relation to the temporal link between the trauma and the miscarriage and there was no way of resolving how they came to that different view other than on the basis of their own substantial experience.
The appellant also emphasised that all the experts accepted that there are various possible causes of miscarriage, and that although there were different degrees of possibility, nonetheless, he submitted that some of the other causes of Ms Silvestri's miscarriage were "reasonable possibilities". One of those "reasonable possibilities" was cervical incompetence. He accepted that although the views of the medical experts varied on this, the effect of the evidence was that cervical incompetence was a "reasonable possibility in the circumstances". He accepted that Professor Hilton did not consider cervical incompetence to be of particular importance. However, he relied upon the evidence of Dr O'Connor, pointing out that Dr O'Connor was an obstetrician, whereas Professor Hilton was a forensic pathologist. He also pointed to the fact that Ms Silvestri had had a previous miscarriage and that there was evidence of prior terminations. He submitted, having regard to those matters and Dr O'Connor's evidence, that cervical incompetence could not be excluded as a reasonably possible cause of the miscarriage.
The appellant challenged the trial judge's directions to the jury in relation to the expert evidence on causation. That challenge is the subject of ground 2. He also contended, in relation to ground 1, that when addressing the jury on the possible causes of the miscarriage, the trial judge focussed on infection, when in reality, at least some of the other causes were not capable of being differentiated from infection. It should be noted that the appellant expressly eschewed any challenge to her Honour's direction in this regard as unfair.
This stance was both understandable and proper in circumstances where, as her Honour indicated to the jury, the focus by both the Crown and the appellant's counsel in their addresses had been on whether infection could have been a possible cause of the miscarriage. This is apparent from the Crown's submission in this Court that although the medical evidence referred to other causes, such as smoking and cervical incompetence, "in reality it came down to infection and trauma".

Crown submissions

The Crown submitted that this was not a situation where there were "two sets of white coats", rather, each of the three experts took a different position and it was possible for the Crown to "chart a path" through them to find a majority agreement on all the key issues. That path was as follows.
All medical witnesses agreed that cervical incompetence was very unlikely. When Ms Silvestri attended her general practitioner on 15 August 2014, she was carrying a viable foetus and as at that date the likelihood of a spontaneous miscarriage was 1.5 per cent. The risk of spontaneous miscarriage had been further reduced by the time the miscarriage occurred and was less than 0.5 per cent.
It was acknowledged in the evidence that smoking increases the rate of miscarriage, but it was not suggested in the evidence that smoking was a cause as such of miscarriage.
Having regard to the absence of morphological abnormalities on cytogenetic testing, a genetic cause could was unlikely or even excluded.
That meant that in reality, the cause of Ms Silvestri's miscarriage was either infection or trauma, or the combined effect of infection or trauma.
There was an infection located in the end of fluid. However, even though infection is recognised cause of miscarriage, that did not mean that infection, on its own, was a reasonable possibility. Further, the infection could have been caused if the membranes had been ruptured by the trauma.
All witnesses agreed that trauma could be a cause of miscarriage. Dr Krivanek expressed the opinion that the closer the trauma to the miscarriage, the greater the chance of miscarriage. Professor Hilton accepted that there was a possibility indirect trauma, that is, trauma to the abdomen as opposed to direct trauma to the foetus could have caused the miscarriage.

Appellant's reply submissions

In reply, the appellant accepted that "simplifying it down to two counts of white coats [was] … an oversimplification" of the evidence, but maintained that the difficulty with the Crown's contention that one could chart a path through the expert evidence was that this required the jury picking between these experts in circumstances where they did not have the capacity to decide the difference between the experts, and where all three experts had said that infection as a cause was a reasonable possibility in the circumstances. The appellant also submitted that cervical incompetence was a possible cause.

Consideration

The principles governing this ground of appeal are well established: see M and MFA, and were succinctly restated by Bathurst CJ in Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83 at [308], as follows: "It is not enough for the verdict to be unreasonable that a review of the evidence shows that it was open to the jury to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113]. However, it is equally clear that it is not sufficient that there was evidence on which a jury could convict. That was made clear in M, cited in SKA at [13]. If, after giving full weight to the primacy of the jury as the fact finder, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt, that the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 (MFA) at [26] and [55]-[56])."
With those principles at the forefront of the consideration of this ground of appeal, it is appropriate to restate the issue for determination. The charge of which the appellant was convicted was that he recklessly caused grievous bodily harm, the grievous bodily harm being the miscarriage. There is no dispute on the appeal that an assault had occurred.
The Crown had to prove beyond reasonable doubt that the kick was the significant cause of the miscarriage. It did not have to prove beyond reasonable doubt that it was the sole cause of miscarriage.
As her Honour directed the jury, the question for their determination was whether, given the conflicting medical evidence as to the cause of Ms Silvestri's miscarriage, they could be satisfied beyond reasonable doubt that the kick by the appellant to her abdomen was a significant cause of the miscarriage and that the other nominated causes of the miscarriage were excluded as reasonable possibilities.
The requirement of causation in the criminal law, as in the civil law, is to attribute "legal responsibility" to some person for a particular consequence: Campbell v The Queen (1980) 2 A Crim R 157 per Burt CJ at 161. This observation was cited with approval in Royall v R (1991) 172 CLR 378; [1991] HCA 27 per Mason CJ at 387; Deane and Dawson JJ at 411-412; Toohey and Gaudron JJ at 423. In that case, Brennan J also observed, at 398, that: "The basic proposition relating to causation in homicide is that an accused's conduct, whether by act or omission, must contribute significantly to the death of the victim … It need not be the sole, direct or immediate cause of the death."
Deane and Dawson JJ observed, at 411, that there may be no single cause of the death, "but if the accused's conduct is a substantial or significant cause of death that will be sufficient", given the requisite intent, to sustain a conviction for murder. Toohey and Gaudron JJ observed that it is not necessary that the jury isolate a single cause. Their Honours said, at 423, that there may be more than one cause in which case "the jury will concentrate their attention on whether an act of the accused substantially contributed to the death".
It was not in dispute that the same principles apply to the charge of recklessly cause grievous bodily harm.
In R v Moffatt (2000) 112 A Crim R 201; [2000] NSWCCA 174 Wood CJ at CL commented upon the debate that had followed Royall as to whether there was a difference in meaning in between "substantial and significant" in circumstances where different formulations of the test for causation had been stated in the various judgments in Royall. Wood CJ at CL concluded, at [71]: "What is clear is that the act of the appellant must have more than a coincidental or insignificant effect - rather it must provide a substantial contribution towards the death of the deceased: see also Smith [1959] 2 AB 35; (1959) 42 Cr App R 121; Evans and Gardiner (No 2) [1976] VR 523; Bingapore (1975) 11 SASR 469 at 480; Hallett (1969) SASR 141; and Osland (1998) 159 ALR 170 at 174. Although there has been some debate as to whether the expression 'significant' is interchangeable for 'substantial' in this context (see S J Odgers and S M H Yeo, 'Semantics and the Threshold Test for Imputable Causation' (2000) 24 Crim LJ 73) I am content to accept for the present purpose the latter."
In Reynolds v R (2015) 249 A Crim R 208; [2015] NSWCCA 29, this Court, at [43], after referring to these observations, added: "Finally, it is noted that the term 'substantial' in the context of causation has been said to be 'a convenient word to use to indicate to the jury that it must be something more than de minimis': Royall at 442 per McHugh J referring to Reg v Hennigan [1971] 3 All ER 133 at 135."
This is not a case where the jury's advantage in seeing and hearing the witnesses is a significant factor in determining whether there is a doubt as to the appellant's guilt. Rather, the expert medical evidence is central to the question whether this Court has a reasonable doubt as to the jury's verdict.
The manner in which expert evidence may be used by a jury to reason to a conclusion of guilt or otherwise was considered in Chamberlain (No 2) (1984) 153 CLR 521; [1984] HCA 7 and later in Velevski.
In Chamberlain (No 2), there was a conflict in the expert scientific evidence as to whether blood found in the Chamberlains' car was foetal blood. Gibbs CJ and Mason J observed at 558: "It is of course the function of the jury to consider which of two bodies of conflicting evidence, technical or otherwise, they will accept."
However, in the circumstances of that case, where the defence's scientific evidence was not relevantly undermined, their Honours stated at 559: "The conflicting evidence should have raised a doubt in a reasonable mind, and there is no other evidence that can resolve the doubt before a decision on the verdict is ultimately reached. We conclude therefore that, in the present case, we must proceed on the basis that the jury were entitled to accept as a fact, from which inferences might be drawn, that those parts of the car, and those articles in it, that responded affirmatively to the tests had blood upon them, but that they could not safely accept as a primary fact that the blood was foetal blood."
In Velevski, Gaudron J observed, at [85]: "If the conflicting evidence of experts is not based on matters or assumptions with respect to matters upon which the jury can reach its own conclusions but, instead, is evidence of 'opinion on matters of science within disciplines of which each [is] a master, and at a level of difficulty and sophistication above that at which a juror ... might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation', a jury cannot, by reference solely to that evidence, resolve that conflict in a manner 'which would eliminate reasonable doubt'." (footnote omitted)
The evidence of the expert medical witnesses has been reviewed above in some detail. The medical witnesses agreed that there were a number of potential causes for miscarriage, namely, spontaneous miscarriage; cervical incompetence; chromosomal or genetic abnormalities; infection; and trauma.
The evidence varied as whether smoking was a cause, or was associated with an increased rate of miscarriage. Dr Krivanek gave evidence to the former effect, although it was responsive to a series of questions framed in terms of identifying possible causes of miscarriage: see above at [26]. Dr O'Connor and Professor Hilton expressed the latter view.
None of the expert witnesses suggested smoking was a cause in this case, or coupled with any other possible cause, increased the rate of some other cause being operative. The highest that the evidence reached was Dr Krivanek's evidence in cross-examination in which he agreed that his examination of the foetus and amniotic sac did not rule out smoking during pregnancy being a cause. For that reason, I consider that smoking can be put to one side.
The risk of spontaneous abortion, on the evidence, was so low, less than 0.5 per cent, that I am of the opinion that it too can be too be put to one side.
Infection alone as a cause of the miscarriage in the case of a pregnancy of 12 weeks and 4-5 days was significantly less common than at about 20-24 weeks, which was described by Dr Krivanek as the peak time for infection.
Trauma aside, the other remaining possible cause was cervical incompetence. As the review of the evidence indicates, the medical opinions on cervical incompetence as a possible cause were mixed. Dr Krivanek said that his examination could not rule out cervical incompetence. Professor Hilton said that at the early stages of pregnancy, it was "probably not a terribly important" cause of miscarriage (see above at [36]).
Dr O'Connor's evidence was more detailed. It is set out above at [28]ff. That evidence was that cervical incompetence could have been due to a prior termination if the cervix was damaged in the process of removing the products of conception. He said that cervical incompetence, so caused, was more likely to occur at about 14 weeks, but that this could occur earlier and be a cause of miscarriage. Importantly, he said that the threshold over which cervical incompetence becomes likely is the dilation of the cervix by 9mm. He explained that as a rule of thumb dilation of 9mm would occur where a termination had occurred at 9 weeks. However, in cross-examination, set out above at [29], Dr O'Connor was not able to say one way or the other whether Ms Silvestri suffered from cervical incompetence.
Ms Silvestri had had a previous miscarriage. She had told the police officers in respect of the earlier miscarriage that that foetus was not viable due to the problems arising from her Rh negative status. There was no other evidence relating to that pregnancy or that miscarriage. It was not known at what stage of the pregnancy the miscarriage occurred. There was no evidence as to whether it was a spontaneous miscarriage, or whether medical intervention was required because it had been ascertained that the foetus was not viable and, if so, the nature and extent of that intervention. In particular, there was no evidence in relation to the extent of dilation of the cervix that was required to remove the contents of the conception. Ms Silvestri may have had a number of terminations, although it is unlikely that the jury accepted her evidence in that regard, as they clearly did not accept her evidence that the appellant had not kicked her. But in any event, if there were prior terminations, there was no other evidence about them.
That then raises the question whether, when those factors are taken into account, or perhaps more accurately, when it is recognised that there was no evidence in respect of these matters, it could be said that the Crown had proved that a significant cause of the miscarriage was trauma and had negatived that the miscarriage on this occasion could have been caused by cervical incompetence. The answer to that question, in my opinion, depends upon the full effect of Dr O'Connor's evidence, including his cross-examination. To put the matter another way, was Dr O'Connor's acceptance in cross-examination that he was not able to confirm one way or the other whether Ms Silvestri suffered from cervical incompetence such that cervical incompetence in this case, whilst a possibility, could not be said to be a reasonable possibility?
In seeking the answer to that question, I have re-read the medical evidence, the relevant parts of the addresses to the jury and her Honour's summing up and have concluded that Dr O'Connor's evidence, which was most supportive of a case that cervical incompetence could be a cause, taken overall, did not raise cervical incompetence to the level of being a reasonable possibility in this case. Rather, it was no more than a possibility.
Trauma was accepted by all the medical witnesses as a possible cause of miscarriage. The experts varied, however, as to the degree of likelihood of trauma in this case as being a cause. Dr De Vries was unable to say that trauma caused the miscarriage. Dr O'Connor could not safely conclude that the trauma caused the miscarriage. He was not sure that the timing of the blow and the miscarriage were linked causatively, but agreed that it was possible that the timing of the trauma to the miscarriage "can be significant".
Professor Hilton's evidence in his examination in chief was that for trauma to cause miscarriage, it would need to be of some severity, involving pelvic injury. He said that "substantial force to the abdomen might … increase intra-abdominal pressure and that pressure [could be] transmitted down into the pelvis". However, he considered that the physiological structure of the abdomen and the internal organs would tend to "dissipate [the] force", rather than transmit it to the pelvis. In cross-examination, he accepted that a kick might have the effect of causing an increase in intra-uterine pressure. He also agreed "absolutely" that there did not need to be "a direct hit on the foetus" to trigger a miscarriage. His answer to that proposition is itself of significance.
The evidence as to the causative effect of the combination of infection and trauma also varied. There was the added difficulty with this scenario that it was not possible to tell whether the infection pre-dated the trauma or was a result of the trauma. Dr O'Connor said that trauma was such a rare cause of miscarriage that it was drawing a "long bow" to say that where there was a pre-existing infection, trauma could cause a miscarriage. He accepted it was "a possibility" that that could cause a miscarriage, but rejected that it was "strongly possible" or probable.
Professor Hilton accepted that the possibility of trauma significantly intervening on an existing infection would have to be considered as a possibility and that one of the ways that it could "significantly intervene" is that it could actually trigger a miscarriage. His answer in this regard was "it could do", without further qualification.
Dr Krivanek's position was that having established trauma as a potential or possible cause of miscarriage, it was possible either that there was a pre-existing infection which caused the membranes to be weakened or the membranes were ruptured with an infection thereby resulting. He added: "… however, in the context of the timing of the alleged trauma and the very close relationship of the subsequent PV discharge [I] would believe that it is actually a reasonably likely proposition, while acknowledging that there are other possible causes of miscarriage."
However, Dr Krivanek also agreed with the 'scientific principle' that "correlation is not causation".
Having reviewed all of the evidence, I do not have a reasonable doubt that Ms Silvestri's miscarriage was caused by trauma. The other possible causes of miscarriage postulated in this case were either not established, such as genetic abnormality, or did not rise above a possibility, as in the case of infection and cervical incompetence, or the possibility was so statistically low, as in the case of spontaneous miscarriage at 12 weeks and some days, as to be reasonably dismissed as a cause in this case.
It follows that ground 1 of the appeal should be dismissed.

Ground 2: whether the trial judge failed to adequately address the jury in relation to the expert evidence on causation

The appellant, in ground 2, contended that the trial judge failed to adequately address the jury in relation to the expert evidence on causation.
The trial judge summarised the evidence of the various medical witnesses and then gave the following direction: "In order to find beyond reasonable doubt that the alleged kick by the accused was a direct significant cause of the miscarriage, you will have to exclude the other nominated causes as reasonably possible. Both counsel particularly focused on infection as a possible cause of the miscarriage because Dr Krivanek found evidence of infection during his examination. In order to find beyond reasonable doubt that the kick, alone or in combination with infection, was a direct significant cause of Ms Silvestri's miscarriage, you will have to exclude as a reasonable possibility that infection alone caused the miscarriage without the trauma being a direct significant cause."
This direction was followed by her Honour's summary of the manner in which the Crown and the appellant had respectively addressed the jury on this issue. It is appropriate to set out that additional part of the summing up which was as follows: "The Crown submitted that you would do so, you would exclude the possibility that infection alone was a reasonable possibility to have caused the miscarriage, relying on Dr Krivanek's evidence that infection is significantly less common in the first trimester of pregnancy, the inflammatory changes he observed were subtle and early and the importance that Dr Krivanek placed on the close time between the alleged kick and the subsequent miscarriage, that was important for his opinion that the kick was a cause of the miscarriage. [Counsel for the appellant] submitted that you could not exclude as a reasonable possibility that infection alone caused Ms Silvestri's miscarriage, having regard to Dr Krivanek's evidence that infection alone can cause a miscarriage, that he found evidence of infection during his examination and that infection is less common in the first trimester of pregnancy but is possible. He submitted that when you have the medical experts not ruling out other causes of the miscarriage and not able to say with certainty what caused the miscarriage, you could not be satisfied beyond reasonable doubt that the alleged kick by the accused was a direct significant cause of the miscarriage."
The appellant submitted that these directions were inadequate in three respects. First, it omitted any reference to Dr De Vries' evidence; secondly, the experts had provided more than one possibility for the miscarriage; thirdly, the direction was inadequate in circumstances where there were differences in the expert evidence: see Velevski at [36].
The appellant recognised that as no complaint had been made at trial as to this direction, and no additional direction had been sought, it was necessary for the Court to grant leave to permit it to be raised on the appeal: the Criminal Appeal Rules (NSW), r 4. The appellant submitted that notwithstanding the failure to seek a further direction at trial, the appellant may have lost a chance, fairly open to him, of being acquitted: R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 at [20]-[21]. The Crown submitted that by not seeking a further direction at trial, defence counsel indicated his acceptance of the fairness of direction to the jury in the context of the evidence that had been given by the experts.
The principles governing the application of r 4 in this Court are well-established. The relevant authorities were considered in detail in Poniris v R [2014] NSWCCA 100. The question was revisited in Jubraeel v R [2015] NSWCCA 131. In that case, Macfarlan JA emphasised, at [24], that: "In light of a trial counsel's duty to … seek redirections following the Summing-Up, leave under r 4 is not lightly given. Obtaining leave requires an applicant to satisfy the court that the failure to give the jury a particular direction (or other error) has caused a miscarriage of justice … or at least that there is a possibility that that is the case …"
In the earlier decision of ARS v R [2011] NSWCCA 266 Bathurst CJ had addressed the requirements for the grant of leave pursuant to r 4 as follows: "148 Subsequent cases have established that the following matters are important in considering the operation of r 4: The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]."
The appellant's first complaint may be dealt with briefly. Dr De Vries was the attending physician. His evidence was that he did not observe bruising or detect tenderness over the abdomen. That was not expert evidence, but evidence on examination. Dr De Vries also gave evidence that the foetus is better protected from trauma in the first trimester than in the second or third trimester, and that trauma was a less likely cause of miscarriage in the first trimester. There was no dispute in the evidence about that. Even if her Honour should have mentioned it, there was no miscarriage of justice in her failing to do so. Further, the issue for the jury was whether this was one of those occasions, albeit rare, where trauma either caused or significantly contributed to the miscarriage.
The appellant's second complaint was that her Honour's direction that "you will have to exclude the other nominated causes [of the miscarriage] as reasonably possible" was not sufficient. The appellant contended that the jury should have been instructed that if there was a reasonable possibility that the miscarriage occurred because of factors other than the kick, they should acquit him. The appellant also complained that directing the attention of the jury to the focus on infection in the submissions of counsel had the effect of misdirecting the jury to focus on one of the possible alternative causes of miscarriage as opposed to the range of possible causes identified by experts.
In reviewing the evidence of the experts, the trial judge had referred to the various causes of miscarriage that had been discussed in the evidence. Her Honour, in clear and uncomplicated terms, directed the jury that they would have "to exclude the other nominated causes [of the miscarriage] as reasonably possible". The "other nominated causes" were those other than the kick to the abdomen, or the kick in combination with infection. The jury could not have been misled, confused or failed to understand that if there was a reasonable possibility of other causes, they were required to acquit. With respect to this submission, it does no more than seek to re-arrange the words of a direction that was clear and adequate. This aspect of the second complaint should be rejected.
The appellant further submitted that her Honour's reference to the focus on the submissions of counsel that related to infection or possible cause of miscarriage risk misdirected the jury's focus on one of the possible alternative causes of miscarriage as opposed to range of possible causes, as had been discussed by the experts. Her Honour had referred to all the possible causes and given the jury an appropriate direction in that regard, as I have discussed. Her Honour then directed the jury to the manner in which counsel had approached the case. As his Honour pointed out to the jury, the focus had been on infection. There was no error in her Honour doing so. Indeed, it was appropriate and understandable that the jury be directed to the way in which the appellant's counsel had approached the case, particularly, as I have explained, that the other possible causes of the miscarriage had a low level of likelihood. This was undoubtedly why counsel had focussed on infection. This complaint should also be rejected.
Had these been the only complaints as to her Honour's summing up, I would have refused leave under r 4. However, the appellant's reliance on Velevski raises a more complicated question. In Velevski, the appellant was convicted of the manslaughter of his wife and three children. The matter in issue was whether the wife had murdered the children and then suicided or whether the appellant had murdered the children and his wife. There was expert evidence as to Mrs Velevski's wounds and whether they were consistent with being suicidally self-inflicted. The appellant's expert also gave evidence as to the blood stains on the back of the deceased's wife's night dress and as to the position of her body, which was found on top of the bodies of the three children.
The trial judge had given a direction that the jury should not find an issue against the appellant by accepting one body of expert evidence over another body of expert evidence "unless there was good reason for doing so". The trial judge said that "other evidence in the case might help to resolve any conflict". On the appeal, the appellant's counsel contended that a direction should have been given "that it would be dangerous to accept the body of expert evidence adverse to the appellant by reasoning from general scientific knowledge": see Gleeson CJ and Hayne J at [36].
Gleeson CJ and Hayne J considered the appellant's argument flawed, as the critical difference between the experts did not depend upon matters that required difficult or sophisticated scientific analysis. The appellant in the present case, however, referred to their Honour's observation in Velevski at [38] that it was not necessary to decide whether there were some cases in which a direction such as had been proposed by the appellant should be given and if so what such a direction should contain.
In my opinion, the observation of their Honours in Velevski at [38] does not provide a basis for the grant of leave under r 4. To the extent that the appellant was relying upon the direction given by the trial judge in Velevski set out above, I am not satisfied that it was an appropriate direction to be given in this case. The task for the jury in this case was to determine whether the Crown had proved beyond reasonable doubt that the trauma had been a significant cause of the miscarriage and whether other possible causes had been excluded. The expert evidence on both issues varied as between the medical experts. It was not a case where there were two distinct bodies of expert evidence. A direction in terms similar to that given in Velevski would, in my opinion, have served to confuse the jury.
Accordingly, I would refuse leave to raise this argument on the appeal, but if leave were to be granted, in my opinion, this ground should also be dismissed.
It follows that the appeal against conviction should be dismissed.

Application for leave to appeal against sentence

As the appellant's application to appeal against sentence only arose if the appeal against conviction were successful, it does not arise for determination. Should it be necessary to do so, I would formally refuse leave to appeal against sentence.

Orders

I would propose the following orders: 1. Grant leave to appeal against conviction. 2. Dismiss the appeal against conviction. 3. To the extent necessary to do so, refuse leave to appeal against sentence.
WALTON J: I agree with the orders and accompanying reasons proposed by Beazley ACJ.
N ADAMS J: I have had the considerable advantage of reading in draft the judgment of Beazley ACJ. I agree with the orders proposed for the reasons provided by her Honour.

Amendments 13 April 2018 - Typographical errors corrected at [66] and [70] 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: 13 April 2018

(2000) 24 Crim LJ 73

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