Regina v Phillips [1999] NSWSC 1175

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

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

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

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

Friday, 17 December 1999

070009/98 - REGINA v Tracey Louise PHILLIPS

JUDGMENT

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