Regina v Bilton [2000] NSWSC 923

New South Wales Supreme Court

CITATION : Regina v Bilton [2000] NSWSC 923 FILE NUMBER(S) : SC 70079/99 HEARING DATE(S) : 04/09/00, 05/09/00, 06/09/00, 07/09/00, 11/09/00 JUDGMENT DATE : 11 September 2000

PARTIES : Crown Paul William Bilton JUDGMENT OF : Bell J at 1

COUNSEL : N Harrison - Crown G Cusack, QC - Accused SOLICITORS : SE O'Connor - Crown Budd & Piper - Accused LEGISLATION CITED : Criminal Procedure Act 1986 R v Moffatt [2000] NSWCCA 174 CASES CITED : Royall v The Queen (1990) 172 CLR 378 Wilson v The Queen (1992) 174 CLR 313 @ 334 DECISION : Verdict of guilty of manslaughter entered.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

BELL J

Monday, 11 September 2000 70079/99 - REGINA v Paul William BILTON

JUDGMENT 1 HER HONOUR: Paul William Bilton was arraigned before me on 5 September 2000 on an indictment which charged him that on 25 February 1998 at Chinderah in the State of New South Wales he did feloniously slay Corey Jessel. In the alternative he was charged that on that date and place he did assault Corey Jessel. He entered a plea of not guilty to the count charging him with manslaughter and guilty to the alternative count charging him with assault. The Crown did not accept this plea in full discharge of the indictment and accordingly the matter proceeded to trial. On 4 September 2000 the accused had elected, pursuant to s16(1) of the Criminal Procedure Act 1986, for trial by judge alone and the Crown consented to the same. The matter proceeded before me without a jury. 2 The deceased Corey Jessel was an infant aged two years, he having been born on 5 January 1996. 3 The area of factual dispute was relatively confined. By consent a number of statements were tendered. Oral evidence was given by Cheryl Jessel, the mother of the deceased. There was short oral evidence from Senior Constable Peter Wilson and Detective Senior Constable Ian Hutchinson. Neither of the latter two witnesses were cross-examined. 4 Two electronically recorded interviews between Detective Hutchinson and the accused, the first dated 26 February 1998 and the second dated 19 March 1998, were tendered without objection. 5 The Crown led evidence from two forensic pathologists, Dr Lawrence and Dr Duflou. Dr Collins, forensic pathologist, was called in the accused's case. It will be necessary to return to the medical evidence in some detail in due course. 6 The accused was aged 29 at the date of the incident. He was living at the Hacienda Caravan Park, Chinderah. He was involved in a romantic relationship with Cheryl Jessel, who was also a resident of the caravan park. Ms Jessel lived in one caravan with Corey, the accused occupied a separate van just across the road from hers. 7 The accused told police that he had been involved in the relationship with Cheryl Jessel for about 12 months prior to 1998. Ms Jessel had been living at the caravan park for about four or five months, but he had known her prior to this when she was living at Chinderah Lakes. 8 Corey died sometime a little after 9pm on the evening of 25 February 1998. He had been at home at the caravan park with his mother during the course of the day. She gave him breakfast around 7.30 or 8am. After breakfast Corey vomited. Thereafter he spent the morning playing on a little plastic toy bike outside the caravan. At around 12 o'clock or 12.30 Corey ate his lunch which consisted of a vegemite sandwich and some Milo. Again, he vomited after this meal. Ms Jessel said of this episode, "He was a little bit sick but he was better after that". During the course of the afternoon Corey had his usual nap which lasted around half an hour to an hour. 9 Ms Jessel was asked what Corey had done after waking from his afternoon sleep. She said, "Sometimes we watched television that day or go for a walk or go to the park with him". When asked which of these they had done that afternoon Ms Jessel said "Done all of them". Having regard to her earlier answer I was left with the impression that Ms Jessel did not have a clear recall of the afternoon activities. However, I took it from her response that there was nothing noteworthy about the afternoon. Corey's vomiting attacks following breakfast and lunch do not appear to have led to any departure from the family's routine. 10 Corey was given dinner at about 5 o'clock or 5.30. He ate sausages, potatoes, and vegetables. In her evidence Ms Jessel described Corey as being fine after his evening meal. She said he did not vomit on this occasion. 11 Later that evening Ms Jessel was watching "Blue Heelers" on television. Corey was lying on the double bed. Ms Jessel roused Corey and took him out to see if the accused had returned from touch football. The two walked to just outside the caravan park. In due course the accused turned up and Ms Jessel and Corey walked with him to his van. He gave Corey a piece of bread. Corey eat the bread and did not vomit. 12 The accused asked Cheryl to take Corey to bed. She took him back to their van. She removed his shoes and socks and jumper and lay him on the double bed. He was crying. Ms Jessel stayed in the bedroom for a little while patting him on the head to put him to sleep, then she returned to the living area of the van and continued watching "Blue Heelers". 13 The double bed on which Ms Jessel and Corey slept was located at the southern end of the van. There was a partition between the bedroom area and the living area. A curtain could be pulled across the doorway. Ms Jessel pulled the curtain across so that the light from the living area would not disturb Corey. The curtain did not fully cover the opening. There were gaps at either end. She was able to see into the bedroom from her position as she watched television. 14 The accused came over to Ms Jessel's van. It appears that Corey was still crying. The accused called out to him through the window above the bed, "Bloody hell, go to sleep". He then walked into the van and went straight to the bedroom. 15 The account given by the accused in the course of his two electronically recorded interviews differs in some respects from the evidence of Ms Jessel concerning what took place whilst he was in the bedroom section of the caravan with Corey. I will return to this. For present purposes it is sufficient to note that on the accused's account he walked into the bedroom and punched Corey in the chest with his right fist. Shortly after this he shook the child. It was apparent that Corey was in distress. He was placed on the floor in the living area of the van and the accused left the van to raise the alarm. He went to a nearby caravan where he spoke to Janette Ford and her partner Robert Waldron to ask if they had a telephone. They did not, and the accused left to find a public telephone. 16 Mr Waldron went to the Jessel van and commenced administering CPR to Corey. He observed that Corey was blue in the face, neck, stomach, and arms. He was unable to feel a pulse, and he noted that the child did not appear to be breathing at all. His eyes were open but they did not look normal or clear. As he breathed into Corey's mouth he could hear a gurgling sound as though there was fluid in the lungs. When he pressed on the chest fluid came out of the child's mouth and nostrils. Mr Waldron continued with CPR until the ambulance arrived. He estimated this would have been an interval of about three to four minutes. At no time during the course of this procedure did the child respond. It was Mr Waldron's opinion that the child was already dead. 17 At 9.08pm Diane Kelly, a booking clerk employed by the New South Wales Ambulance Service took a call from a public phone box. The caller identified himself as Paul Bilton. He reported "Site 80. It's a little two year boy. He has fallen over and there is something wrong with him. He won't - He's just breathing funny". 18 Ambulance Officers Hutchinson and Potts arrived at Hacienda Caravan Park at 9.15pm. Officer Hutchinson described a male person (who it is common ground was the accused) telling him "He's fallen from his bed onto this toy. It's hit him in the chest". 19 The ambulance officers lay Corey on a concrete slab adjacent to the caravan and placed defibrillation electrodes on him. This equipment gives a reading of the electrical activity of the heart. There was no heart beat. 20 Ambulance Officer Hutchinson's opinion was that Corey was already dead when he first saw them. 21 The child was transported to the Tweed Heads Hospital Accident and Emergency Section where life was certified extinct. 22 In the period following the realisation that Corey was suffering from some significant injury, the accused fixed upon a plan to say that Corey had fallen out of bed. In his interview with police, he said that he had given such an account to Cheryl. He pointed out that Cheryl did not know that he had hit Corey. 23 Two uniformed police officers attended at the scene. The accused and Ms Jessel were conveyed to the Tweed Heads Hospital in a police car with one of the officers. At the hospital Detective Hutchinson spoke briefly with Ms Jessel to obtain particulars as to Corey's date of birth, name, and address. Thereafter he spoke with the accused. 24 The accused accompanied Detectives Hutchinson and Thurbon to the caravan park. He agreed to speak with them further about the matter at the Tweed Heads Police Station. He was interviewed in the early hours of the following morning. 25 In the course of that interview he agreed that he had made up the story about Corey falling out of bed. Prior to the commencement of the interview he had told police that he had struck Corey. The account he gave in his first interview was as follows: "He was crying and, um, Cheryl took him home, laid him down and he kept on crying, so I went over there and said to her, is he crying? and she said, yes, and I went over there and I hit him". 26 The accused went on to say that he had struck Corey in the chest using his right fist. After that he left the Jessel van, went back to his own van, and then he returned to check Corey. He returned within a couple of seconds and saw that Corey was gasping for air. In the first interview he described events in this way: "I went out and went back home and I come back and I come back over to check him to see if he was all right and he was gasping for air, so I took him out in the lounge room. Then I went over to a friend's place to see if they had a phone and they didn't have one, and then I went to the ambulance" . 27 In the course of the first interview the accused described Corey as whingeing. He had hit him out of frustration. He had not meant to hit the child as hard as he did. 28 It is to be noted that in the account given during the first interview the accused made no reference to shaking the child with a view to seeing if he was all right, or for any other reason. 29 The accused was not under the influence of alcohol at the time he struck Corey. He had consumed one middy of VB at the Cudgen Leagues Club after the game of touch football. 30 Following the completion of the first interview on 26 February the accused was charged and taken into custody. He had no contact with Cheryl Jessel in the period between leaving the Tweed Heads Hospital and the first record of interview. 31 Cheryl Jessel was also interviewed on 26 February 1998, and that interview was recorded. 32 On 19 March 1998 Detective Hutchinson conducted a further interview with the accused at the Grafton Police Station. This was done with a view to clarifying events in the light of the autopsy examination. As I have noted, no objection was taken to the admission of this interview. 33 One area of conflict in the evidence relates to the number of occasions on which the accused shook Corey and to the circumstances in which that shaking took place. 34 Cheryl Jessel gave evidence that she had been able to see the accused in the bedroom section of the caravan with Corey. In the gaps between the partition and the curtain she had been able to see a little bit of Corey's body and Paul's body too. She could see Corey's legs. Corey was lying down. Paul was sitting on the bed with his legs off the bed. She saw Paul shaking Corey. Paul was sitting on the bed while he was doing this. "He got Corey up and shaked him underneath. He put his hand under his arm and shaked him". 35 Ms Jessel demonstrated how the accused had shaken Corey. She indicated that he had placed his hands under the child's armpits. She described the shaking as hard shaking. She said that it had gone on for between five and seven minutes. During this time she said that Corey was crying "Mum". She said that she had asked Paul to stop. She thought she had asked him to stop on two occasions. Paul did stop and went back to his place. 36 After the accused left the caravan Ms Jessel went to see if Corey was all right. She said, "Corey was laying there asleep. Looked like asleep to me". He was not moving or making any sounds. She saw white stuff coming out off his mouth. She screamed out to the accused, and the accused came running over. She said it was between 15 to 20 minutes from the time that the accused left the van after shaking Corey to the time he returned. 37 Ms Jessel was asked what the accused had done when he came back into the caravan. She said, "He opened the door and came straight to Corey. Picked him up. Shaked him". She went on to say of this shaking that it was "Not hard. Just to check if he was awake". She was asked how long this second episode of shaking had taken and she said, "just three minutes". This second episode of shaking by the accused occurred in the bedroom section of the caravan. Ms Jessel went on to say, "I took Corey off Paul. I put him straight on the floor". She said that when the accused was shaking Corey on the second occasion he was sitting down with his legs off the bed. 38 Ms Jessel was also reinterviewed on 19 March 1998. Prior to this second interview Detective Hutchinson spoke with her and told her that the medical evidence suggested that Corey had been shaken hard. During the course of the interview which followed it appears that Ms Jessel, for the first time, offered the account that she had seen the accused shaking Corey "real hard". 39 The accused in his second record of interview was asked: "Q. Can you tell me if at any stage during the evening when Corey died did you shake him at all? A. The only time was when he was sitting on, when he sat him on my lap. Q. Right, now when was that? A. That was when I came back in the room when he was gasping for air. I sat him on my lap and shaked him". 40 The accused described the sequence of events in these terms: "We went to my place and I gave Corey something to eat, a piece of bread. Then they went home, then I went back over there. Corey was crying. I walked into his bedroom, punched him in the chest, standing up as he was laying down, then I went back home, then I came back a couple of seconds later and I seen him there gasping for air and then I put him on my lap and shook him and his head was going around and around and then we took him out and put him on the lounge, on the lounge room floor, and then I went to a bloke's place to see if he had a phone to ring the ambulance". 41 The accused told the police in the course of the second interview that he remembered the contents of his first interview. He agreed that he had not made reference to shaking Corey on that occasion. 42 There was some malfunction with the ERISP equipment during the conduct of the second interview and no video recording was made. The accused was closely questioned concerning the manner he had shaken Corey that night. He demonstrated on at least one occasion what it was that he had done. Detective Hutchinson was not able to recall, after this interval of time, how the accused had demonstrated the shaking of Corey. 43 The accused's verbal description of the shaking was in these terms: " Q. And did he do anything when you shook him? A. No, he was just gasping for air and his head was turning around.